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Case Abstracts for matters heard in April of 2010

CSB-2009-043 Irwin Kwiat, Worcester, MA  (Disbarred)
After his December 2005 indictment for murder and two firearms violations, claimant paid Mr. Kwiat a $5,000 retainer in March 2006.  In his handwritten receipt Mr. Kwiat wrote: "Total fee not including expenses — Twenty Thousand ($20,000.00) Dollars." Claimant paid Mr. Kwiat approximately $39,825.00 between March 2006 and September 2007.  Mr. Kwiat never informed claimant that he himself was defending disciplinary charges for the entire time he represented claimant and that he might not be able to complete the representation for which he was hired.  The disciplinary charges resulted in Mr. Kwiat’s public reprimand in August 2006 and his administrative suspension for non-cooperation in October, 2007.  In October 2007, claimant hired successor counsel who requested claimant’s file from Mr. Kwiat and an accounting of the legal fees paid to him.   Successor counsel evaluated the file received from Mr. Kwiat as useless to him.  Mr. Kwiat never accounted for the fees he received and never refunded any portion of them to claimant.  Claimant was found not guilty on the murder charge and served time on the weapons charges.  Successor counsel valued the legal services Mr. Kwiat provided to claimant at approximately $10,000.  The Board found a defalcation and awarded claimant $29,825.00. 

CSB-2008-084 Bruce L. Namenson, Quincy, MA (Disbarred)
Claimant, age 15 1/2, was still hospitalized from injuries received in an August 2005 auto collision when Mr. Namenson visited her and her mother to sign a contingent fee agreement while he himself was in the midst of his disciplinary proceedings.  In December 2005, Mr. Namenson settled the claim and received a check for $100,000 made payable to claimant’s mother and Mr. Namenson’s firm despite directions from the insurance company’s legal counsel that the settlement check be written to claimant’s mother FBO of the young claimant's trust account with instructions to hold in escrow pending court approval of the release and supporting documents.  In June 2006, claimant and her mother relocated to Georgia.  Claimant learned of the settlement from Mr. Namenson in 2008 during a conversation with him when he explained that he was experiencing problems.  He referred claimant and her mother to the Clients’ Security Board where they confirmed that Mr. Namenson made sporadic payments to them totaling $26,000 but never accounted for or paid the balance of the settlement ($40,666).  Claimant’s mother explained that it was her understanding that Mr. Namenson was to receive 1/3 of the settlement in legal fees.  The Board found a defalcation and awarded claimant and her mother $40,666. 

CSB 2007-064 Wilfred J. Daley, III, Andover, MA (Disbarred)
Claimant’s husband died in April 2002 after which she moved to Florida from where she planned to sell the New Hampshire home where she and her husband had lived before he died.  She engaged her brother (Mr. Daley) to handle the transaction, paid him a $400 fee and gave him power of attorney.  The sale closed on December 31, 2002 after which Mr. Daley deposited $78,135.46 into claimant’s bank account, leaving a shortfall of $83,925.37 from the net proceeds of $162,060.83 due claimant.  As she attempted to follow-up with Mr. Daley from Florida, she experienced both physical and emotional problems and accumulated substantial credit card debt.  In October 2005, she filed a pro se Ch. 7 bankruptcy in Florida and received her discharge in February 2006.  Claimant failed to list as an asset of her bankrupt estate Mr. Daley’s unpaid debt to her of $83,925.37.  Claimant did not sue Mr. Daley because he had no assets following his felony larceny conviction that resulted in a one year jail sentence, four years of probation and a restitution order of $162,237 to the little league team from which Mr. Daley stole the money.  Because of concern about claimant’s omission from her bankruptcy filing of Mr. Daley’s debt to her, the Board found a defalcation of $83,925.37 and directed counsel to contact the trustee in the Florida bankruptcy for a joint letter of instruction (claimant and trustee) to the Board about the disposition of part of these funds.  The bankruptcy trustee reopened the case and solicited claims from creditors.  In claimant’s name, the Board sent $37,000 to the bankruptcy trustee to cover the claims and in administrative expenses.  Once the bankruptcy case is closed, the Board will award claimant $46,925.37. 

CSB-2009-079 Irwin Kwiat, Worcester, MA (Disbarred)
In late 2006 claimant, then age 65+, was charged with trafficking in cocaine, possession with intent to distribute, and a controlled substance offense near a park or school.  He retained Mr. Kwiat to represent him and, as of January 11, 2007, paid him $5,000.  A grand jury indicted claimant on March 13, 2007 and Mr. Kwiat filed his appearance at the arraignment on April 18, 2007.  Mr. Kwiat participated in a pre-trial conference on May 16, two compliance hearings on June 21 and July 20 and filed a motion to suppress evidence and statements on August 6, 2007.  Sometime after January 2007, claimant reported making three more payments totaling $2,500 for which Mr. Kwiat promised, but never delivered, a written receipt.  On October 1, 2007, the SJC suspended Mr. Kwiat for non-cooperation with the disciplinary process.  Claimant retained successor counsel in December, 2007.  After a flurry of pre-trial motions in limine on January 25, 2010, the Commonwealth entered an order of nolle prosequi on all three charges.  Mr. Kwiat dishonestly concealed from claimant that he was deeply involved in disciplinary proceedings and that, in all likelihood, he would be unable to complete his engagement with claimant.  The Board found a defalcation and made an award of $5,000.00 to claimant. 

CSB-2010-006 Peter B. Dion, Leominster, MA  (Suspended)
In February 2003, claimant, age 84, slipped on her landlord’s icy driveway and fractured her wrist.  She hired Mr. Dion, an old family friend, to represent her in a suit against the landlord.  Without claimant’s permission Mr. Dion signed claimant’s name to a release in May 2007 and received two settlement checks in the same month totalling $10,000.  Claimant’s last contact with Mr. Dion was in May 2006 when he advised her that he had received an offer of $10,000 and he thought that he could get more money.  Claimant made several attempts to contact Mr. Dion but could never locate him.  The Board found a defalcation and awarded her $6,666.67. 

CSB-2009-057 David M. Lipton, Brookline, MA  (Suspended)
Claimant paid a $5,000 retainer to respondent in June 2002 for representation in a dispute with a university that they discussed during several meetings at Mr. Lipton’s home.  In July 2002, the SJC administratively suspended respondent for failure to pay his annual registration fee but reinstated him on February 4, 2003 after he paid the arrearage.  That suspension occurred in the midst of disciplinary proceedings against respondent that began in January 2000 and ultimately ended with his suspension in December 2004.  Respondent performed no legal services for claimant and never returned or accounted for the retainer.  The Board found a defalcation and awarded claimant $5,000. 

CSB-2009-074 Theodore Scott Geller, Worcester, MA  (Disbarred)
Claimants retained private defense counsel (not Mr. Geller) for their adult son after he was indicted him for rape in May 2006.  Frustrated with the slow pace of the criminal process and wanting their son to be cleared of the charges quickly, claimants, without consulting or notifying their son’s current counsel, paid a $5,000 retainer to Mr. Geller in June 2007 to prepare and file a motion to dismiss the charges.  In mid-July, Mr. Geller reported to claimants that he had filed the motion and that the judge had denied it meaning that the case would go to trial.  The SJC temporarily suspended Mr. Geller in November 2007 because he posed a "threat of substantial harm to clients or prospective clients."  Claimant's son (the defendant) asked the court clerk to examine the file to see if it contained Mr. Geller's motion.  The clerk explained that Mr. Geller filed nothing in connection with his case.  Claimants demanded a refund from Mr. Geller who paid them $1,500 leaving $3,500 unreimbursed.  The Board found a defalcation and made and awarded claimants $3,500. 

CSB-2009-037 Raymond A. Desautels, Oxford, MA  (Disbarred)
In February 2008, claimant gave Mr. Desautels a $1,000 retainer to file a Ch. 7 bankruptcy petition on her behalf.  Mr. Desautels was then temporarily suspended in April 2008 and eventually disbarred in June 2008.  He did no work on behalf of claimant.  Claimant paid successor counsel $1,500 to file her bankruptcy petition.  The Board found a defalcation and awarded claimant $1,000. 

CSB-2009-020 Bruce L. Namenson, Quincy, MA  (Disbarred)
In July of 2006, claimant was injured in a two-car accident and hired Mr. Namenson.  The two insurance companies involved each offered settlements of $2,500.  Mr. Namenson had claimant sign one of the releases and forged his signature on the other.  Each insurer issued a $2,500 check to Mr. Namenson, who never delivered or accounted for claimant’s share.  The Board found a defalcation and awarded claimant $3,300 (2/3 of $5,000). 

CSB-2009-067 Henry B. Wynn, Brookline, MA  (Suspended)
During 2003, claimant’s lawyer referred claimant to Mr. Wynn, a suspended lawyer (since 1987) then serving as a court-authorized paralegal to claimant’s lawyer, for assistance in drafting a discrimination complaint for filing with a state administrative agency.  Claimant reported paying Mr. Wynn $300 for his services and photocopying expenses although he produced no evidence of such payment.  Claimant reported meeting with Mr. Wynn three times and then losing his case because neither Mr. Wynn nor his own lawyer appeared at the hearing.  Claimant produced no evidence from the administrative agency showing he lost his case.  The Board dismissed the claim for a lack of evidence of a defalcation or reimbursable loss. 

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