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Case Abstracts for matters heard in October of 2009

CSB-2009-045 Nancy J. Sardeson, Amherst, MA (Disbarred)
In October, 1999, claimants (a sister and brother, then ages 15 and 11, respectively) were orphaned in a murder-suicide carried out by their father. In March 2000, Ms. Sardeson was appointed guardian of their property that included $85,000 in cash and seven multi-unit rental properties. Claimants’ aunt was appointed guardian of their persons. During the next four years, respondent failed to deposit various funds to the guardianship accounts or to account for those funds, commingled real estate security deposits with other guardianship funds and failed to pay annual interest to tenants, failed to file income tax returns for the wards (resulting in assessments of penalties and interest), failed to collect and deposit rental checks (resulting in substantial lost income), and failed to pay mortgages, real estate taxes and other municipal charges in a timely manner (resulting in commencement of foreclosure proceedings on three occasions and interest, late fees and attorney’s fees of over $5,000). At claimants’ request, the probate court removed Ms. Sardeson and appointed claimants’ current attorney as successor guardian of their property in March 2004. Claimants sued for and recovered the full amount on respondent’s $95,000 guardian’s surety bond.  Claimants requested from the Board an additional $42,000 to recover for defalcations beyond the limit of the bond. Claimants’ counsel provided evidence to establish that Ms. Sardeson’s defalcations were not less than $42,000 over and beyond the $95,000.00 paid by the bond issuer.  The Board found a defalcation of $42,000 and made an award to claimants in that amount to be shared equally by them. 

CSB-2009-058 Bruce N. Sachar, Lynn, MA (Disbarred)
Three adult siblings and a nephew retained Mr. Sachar in July 2006 to file suit related to a dispute over the estate of the siblings’ father.  In October 2007, with client approval, Mr. Sachar settled the suit for $100,000. Mr. Sachar wrote to the elder-brother claimant in July 2008 with a final accounting of his fee (net recovery was $96,788.50) and requested from him the four amounts into which the net settlement should be divided. The elder brother telephoned Mr. Sachar’s office and gave the four amounts.  During an office meeting with the elder brother on September 8, 2008, Mr. Sachar explained that he had gambled away the entire settlement and that he was going to be disbarred and criminally charged.  The Board found a defalcation of $96,788.50 and made four individual awards as directed by the claimants. 

CSB-2009-064 Irwin Kwiat, Worcester, MA (Disbarred)
On April 13, 2007 police arrested and charged claimant with operating under the influence. That was not only claimant’s third OUI offense but also a probation violation.  Despite a cash bail of $5,000 on the new offense, claimant was not eligible for bail because the probation violation forced him to remain in custody until September 19, 2007. While in custody, claimant retained Mr. Kwiat, who had represented claimant from time to time since 1991.  Claimant asked Mr. Kwiat to handle his financial affairs while he was in custody.  At Mr. Kwiat’s request, claimant gave him the keys to his condominium and mailbox, his ATM card and PIN, and access to his savings account at another bank by means of a power of attorney.  Mr. Kwiat agreed to get claimant’s mail and to pay his mortgage, condominium fees, and utility bills while claimant was incarcerated. Mr. Kwiat advised claimant to transfer more than $37,000 from his 401K plan to his checking account to pay for legal services and to have a sufficient balance to pay claimant’s bills. Between April 28, 2007 and August 15, 2007, Mr. Kwiat, without authorization, received $8,000 in legal fees, made 63 ATM withdrawals totaling $23,428, used claimant’s debit card to purchase $285.38 worth of goods and services for his own use, made himself the payee on three blank checks pre-signed by claimant totaling $5,400, and withdrew for his own uses $830 from claimant’s savings account using the power of attorney.  Mr. Kwiat made one mortgage payment of $795.83 on claimant’s behalf. In August 2007, claimant fired Mr. Kwiat and demanded, in writing, the immediate return of all the misappropriated funds and an accounting. Mr. Kwiat never returned the funds or accounted for them. The Board found a defalcation of $35,000 and made an award to claimant in that amount. 

CSB-2009-019 Bruce L. Namenson, Quincy, MA (Disbarred)
While a passenger in a friend’s car, claimant was injured in an auto collision in May 2006. The other driver fled and was never found.  Claimant was hospitalized and released following considerable diagnostic treatment and medical services.  After her stitches were removed, she received more than two months of chiropractic treatment.  The car in which claimant was riding was owned by the mother of claimant’s friend.  The mother’s insurer paid for some of claimant’s medical bills.  A family member referred claimant to Mr. Namenson who visited claimant’s home and had her sign a fee agreement but never gave a copy to her.  Whenever claimant would call Mr. Namenson to ask about her case she would receive "the run around." When claimant learned during 2008 that Mr. Namenson had been convicted and sentenced, she called his office and received help from an employee there who sent claimant a copy of the $50,000 settlement check that Mr. Namenson negotiated in March 2007.  Claimant had never seen the check before; she never endorsed it; and never signed a release.  The Board found a defalcation of $33,333.34 and made an award to claimant in that amount. 

CSB-2009-029 John B. Sullivan, New Bedford, MA (Deceased)
Claimant, a U.S. Air Force veteran, became disabled due to a non-combat service injury.   In February 2006, claimant retained Mr. Sullivan and paid him a $2,000 retainer to represent him on an OUI charge, a probation violation, and a subsequent probation violation in March 2006.  At a September 2006 court hearing, for which Mr. Sullivan had failed to prepare claimant, Mr. Sullivan supported a motion for a competency examination for claimant.  While claimant was confined to a state mental hospital pending that examination, Mr. Sullivan had him sign a six-page Durable Power of Attorney for Financial Management making Mr. Sullivan claimant’s attorney-in-fact.  Records of Mr. Sullivan’s transactions under the power of attorney showed an aggregate balance between $34,200.00 and $34,450.00.  Legitimate disbursements totaled $14,158.34 while undocumented payments totaled $19,256.76. The Board found a defalcation of $19,256.76 and made an award to claimant in that amount. Mr. Sullivan died in 2008 at age 50 while administratively suspended during a disciplinary investigation based on claimant’s complaint. 

CSB-2009-024 Bruce L. Namenson, Quincy, MA (Disbarred)
Claimant was injured in an auto collision in January 2005 at the age of 20.  He was responsible for the support of his sister and her child after the death of his mother. After engaging Mr. Namenson, claimant called him repeatedly over the years to inquire about his settlement.  Shortly after Mr. Namenson’s disbarment in October 2008, claimant called his former office to ask for help getting a copy of the settlement check from the insurance company.  In November 2008, he received a copy of a $6,200 insurance check that Mr. Namenson received on claimant’s behalf and negotiated in November 2005.  The Board found a defalcation in the amount of $6,200 and made an award in that amount to claimant without crediting respondent with his contingent fee. 

CSB-2009-034 Irwin Kwiat, Worcester, MA (Disbarred)
In June 2007, slightly more than one year after his May 2006 indictment on narcotics and firearm charges, claimant paid Mr. Kwiat $5,300 cash in three installments to negotiate a plea agreement, and engaged him as private defense counsel to replace court-appointed counsel.  Mr. Kwiat filed his appearance on June 6, 2007 and then participated in four status reviews and one pre-trial conference between June 6 and August 15, 2007.  He then continued two scheduled hearings on a previously-filed motion to suppress and a scheduled jury trial before failing to appear for a status review.  Claimant learned from the court that Mr. Kwiat had been suspended on October 1, 2007 for non-cooperation with the disciplinary process.  Claimant never again heard from Mr. Kwiat or received an accounting for the $5,300 fee paid.  By failing to disclose a material limitation on his ability to represent claimant to completion, Mr. Kwiat engaged in dishonest conduct that was the equivalent of theft by deception.  The Board found a defalcation of $5,300 and made an award to claimant in that amount. 

CSB-2009-077 Anthony M. Fredella, Boston, MA (Deceased)
Claimant had retained Mr. Fredella for legal work beginning in 1974.  In 2004, she retained him to establish the Ness Charitable Trust, to provide care and comfort for hospitalized children.  In October 2005, claimant mailed two checks totaling $100,000.00 to Mr. Fredella as contributions to the Trust.  Mr. Fredella deposited these checks in his IOLTA account.  After claimant learned of Mr. Fredella’s death in March 2007, she repeatedly and unsuccessfully inquiried about the status of the Trust.  In January 2008, Mr. Fredella’s son, the court-appointed administrator of his father’s estate, notified claimant that there was no Ness trust account and that the $100,000 she transferred to his father was gone.  Claimant sued Mr. Fredella’s estate and recovered an $80,000 settlement.  She then requested reimbursement of the $20,000 shortfall from the Board.  The Board found a defalcation of $20,000 and made an award to claimant in that amount. 

CSB-2009-048 John Udo, Brockton, MA (Disbarred)
On April 23, 2008, 13 days before his administrative suspension on May 6 for non-cooperation in the disciplinary process, Mr. Udo accepted $4,000 from claimant to represent her son in a Superior Court criminal matter.  Mr. Udo filed his appearance on April 25 and the court docket entries showed his appearance on May 19 (13 days after his suspension) to make a motion to suppress.  On July 9, 2008 claimant's son filed an affidavit of indigence and counsel was appointed to represent him.  The Board found a defalcation in the amount of $4,000 and made an award in that amount. 

CSB-2009-097 Ennio Cataldo, Peabody, MA (Disbarred)
In December 2007, claimant paid Mr. Cataldo $500 to represent her in post-divorce proceedings when his administrative suspension was imminent.  Mr. Cataldo never disclosed that limitation on his ability to represent her and never performed any services on behalf of claimant.  Claimant had to engage successor counsel to whom she had already paid $1,791.50.  The Board found a defalcation in the amount of $500 and made an award in that amount. 
 

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