Case Abstracts for matters heard in August of 2006
CSB-2005-032 Richard G. Birchall, Orleans, MA (Disbarred)
In early 1994, almost one year after her husband's murder, when claimant's assets were threatened by suits by the husband's first wife and her children, claimant's criminal defense lawyer referred her to Mr. Birchall. Claimant paid him a $30,000 fee for an asset protection plan to protect her real and personal property from potential creditors. Mr. Birchall took control of claimant's assets and failed to account to her for approximately $2.6 million, almost all of which consisted of death benefits from several insurance policies on her murdered husband's life. Claimant and a male friend were charged with that first degree murder. Following separate trials, the friend was convicted of murder and is serving a life sentence. Claimant was acquitted of murder but convicted of perjury and attempting to procure perjury. She was paroled after serving five years of a 10-12 year sentence. Claimant filed suit against Mr. Birchall to recover her assets and in July and November 2005, a superior court entered a default judgment and execution in the amount of $2.8 million against Mr. Birchall and in favor of claimant. Claimant knew that Mr. Birchall created a Delaware corporation and a Bahamian business entity to hold her assets. Mr. Birchall explained that he no longer had records to demonstrate that all of the money entrusted to him was spent for claimant's benefit or for the benefit of her family. Substantial payments went to lawyers who: defended a civil suit by the first wife; defended claimant on charges of murder and perjury; defended the male family friend on the charge of murder; appealed claimant's conviction for perjury and represented her before the parole board on three occasions. The Board, after taking into account all of the facts and circumstances of the claim, provisionally found a defalcation by respondent in an indeterminate amount but, in the exercise of its discretion, elected not to make an award to claimant because of the many troubling elements in the totality of the circumstances surrounding this claim
CSB-2005-028 Richard N. Ivker, Waltham, MA (Suspended)
In May 2004, claimant's father gave Mr. Ivker a $1,500 fee to assist in vacating a default judgment that had been entered against claimant by a Vermont court while claimant was serving a lengthy Massachusetts prison sentence. Mr. Ivker explained in an October 2005 letter to the Board that he spent six hours at a billable rate of $250 reviewing documents pertaining to a motion for a speedy trial in the Vermont case, researched the Interstate Agreement and Detainers Act, spoke with Rutland, Vermont district court personnel from whom he received information regarding the criminal charges that were filed against claimant, and communicated with Vermont local counsel. The Board concluded that Mr. Ivker earned the $1,500 fee for the work performed and voted to deny the claim.
CSB-2005-069 Jon F. Conant, Gloucester, MA (Disbarred)
Claimants (husband and wife) hired Mr. Conant to assist with the purchase of a home in 2003 for which they had obtained a loan. Approximately $141,000 of the loan proceeds were paid to the seller and approximately $265,000 were reserved to pay off the seller's mortgage. Acting on behalf of the title insurance company, Mr. Conant issued a title insurance policy that guaranteed to claimants a free and clear title. He also represented to the title insurers that he would use the claimants' loan proceeds to pay off the mortgage. When he failed to make the promised payment, the mortgagee began foreclosure proceedings on claimants' home. One week before a foreclosure auction, the title insurer paid the outstanding mortgage. The claimants sought to recover transaction charges for document preparation, attorney's fees and cost of title insurance. Although Mr. Conant stole the claimants' loan proceeds, the title insurer paid off the mortgage on their behalf. Mr. Conant performed the services necessary to obtain title insurance and he handled the closing, which earned him a fee. Although the Board recognized that the claimants had suffered through the ordeal of near-foreclosure, it nevertheless found that the claimants suffered no financial loss and voted to deny the claim.
CSB-2006-001 Robert Erwin Silver, West Newton, MA (Disbarred)
In 1989, claimant, the president of a Subchapter S corporation, gave a $5,000 retainer to Mr. Silver to negotiate a commercial lease for a restaurant. Mr. Silver rendered legal services and provided a March 31, 1990 bill that showed a credit balance to claimant of $3,950. When claimant demanded the return of her unused funds, Mr. Silver simply ignored her. In December 1993, claimant, through new counsel, sued Mr. Silver in district court to recover her unused funds. Judgment entered in her favor in April 1994 but went unpaid by Mr. Silver. The Board found a defalcation of $3,950.00 and made an award in that amount.
CSB-2006-009 Martin D. Boudreau, Hopkinton, MA (Deceased)
Federal authorities arrested claimant in November 2002 and charged him and three other individuals with conspiracy to manufacture and possess with intent to distribute a controlled substance, "ecstasy." Claimant initially engaged another attorney to defend him but dismissed that attorney in April 2003 because he was dissatisfied with the representation. Claimant then engaged Mr. Boudreau, a former AUSA, and another attorney as co-counsel. Claimant agreed to pay each lawyer "$25,000.00 for their services and no more." There was no written fee agreement and no agreement on hourly rates. Claimant paid them $20,000 in April 2003 and $24,500 "at some point in 2004" for a total of $22,250.00 each. In late August 2003, Mr. Boudreau's work on claimant's case was interrupted by his surgery for colon cancer. On October 31, 2003, Mr. Boudreau met with claimant to discuss a proposed plea agreement. They met again during February 2004 while Mr. Boudreau was in regular contact with the prosecutor, and in May and July 2004. A new U. S. Supreme Court decision required Mr. Boudreau and the prosecutor to perform additional work on the plea agreement. Claimant admitted that he and Mr. Boudreau met ten times. In January 2005, claimant entered his negotiated plea accompanied by the co-counsel. Mr. Boudreau died on July 12, 2005 and the co-counsel completed the representation by appearing with claimant at sentencing on October 5, 2005 when claimant was sentenced to 96 months. Claimant complained that the work done by Mr. Boudreau was ineffective and did not earn the entire fee of $22,250. However, claimant referred at times to his payment of $22,250 to Mr. Boudreau as a "lump sum" or as a "retainer" and agreed that he and Mr. Boudreau did not agree on hourly rates but on a lump sum for his services. The Board found that this claim was a fee dispute between the parties and voted not to make an award.
CSB-2006-011 Stephen C. Maloney, Canton, MA (Disbarred)
In August 2003, claimant engaged Mr. Maloney to represent her in the appeal of a probate matter and paid him a $3,500 retainer plus $775 in for expenses. In connection with that appeal, the court awarded claimant $3,500 in legal fees and $775 in expenses in July 2004. In September 2004 (approximately three weeks after the effective date of Mr. Maloney's disbarment), counsel for the adverse party sent a check for $4,275 to Mr. Maloney. On September 6, 2004, Mr. Maloney forwarded that check to claimant after he endorsed it payable to her. When claimant's bank barred her from negotiating the third-party check because of post-9/11 security regulations, she returned the check to Mr. Maloney on September 15, 2004. Two weeks after the return of the check, Mr. Maloney explained to claimant that as soon as the check cleared his bank he would send her a check for $4,275.00. When that check failed to arrive, claimant sent a letter by certified mail to Mr. Maloney on November 27, 2004 asking for it. Maloney never replied to that letter. The Board found a defalcation of $4,275.00 and voted to make an award in that amount.
CSB-2005-040 John C. McBride, Marblehead, MA (Disbarred)
In late 1998 claimant was arraigned on four felonies and released on his personal recognizance. At that time, claimant was represented counsel other than Mr. McBride. Sometime later, claimant was taken into custody on several writs of habeas corpus issued between January and July 1999 to secure his attendance in court. In August, an associate of Mr. McBride filed his appearance on behalf of claimant. Claimant reported a total of $17,500 in fees paid to Mr. McBride. Of that amount, claimant contended $2,500 was to have been used for a private investigator and $2,500 was to be used for an accident reconstruction expert but neither was engaged. Mr. McBride or his associate filed several pre-trial motions on claimant's behalf between September 1999 and January 2000. In February 2000, claimant entered guilty pleas to manslaughter and operating a motor vehicle on a suspended or revoked license. The prosecution did not go forward on the other two charges. In April, claimant was sentenced to 10 years on the manslaughter and 10 years probation "from and after" on the unlicensed driving charge. Mr. McBride filed a motion to revise and revoke on April 14 that was denied without a hearing on April 18, 2000. In October 2004 claimant filed a Petition for Fee Arbitration with the Massachusetts Bar Association. Because Mr. McBride never responded to the petition, the matter was dismissed without prejudice. The Board found that this was a fee dispute between the parties and voted not to make an award.
CSB-2005-042 Gary L. Meyers, Brookline, MA (Deceased)
Claimant was a small business which, in 2005, employed 10 persons and generated revenues of approximately $5 million. When Mr. Meyers allegedly misappropriated the company's funds in 2002, it employed 10 and generated approximately $1.2 million in revenue with a net loss of almost $300,000. To settle a lawsuit, the company gave Mr. Meyers two checks totaling $23,000.00. Both were made payable to Mr. Meyers and both were negotiated for cash. Mr. Meyers delivered $10,000 of the $23,000 to a former company employee who had filed suit, but failed to deliver or account for the remaining $13,000. The Board found a defalcation of $13,000 and voted an award in that amount.
CSB-2005-067 Michael J. Cruz, Springfield, MA (Disbarred)
Claimant's son pled guilty in October 2000 to eight serious felonies resulting in a sentence of 25-27 years followed by five years probation. In February 2002, claimant paid Mr. Cruz $500 to reduce her son's sentence. In March 2004, claimant paid Mr. Cruz an additional $1,885. Mr. Cruz wrote to claimant's son in May 2004 saying that he was working on his case and was planning to see him soon. After Mr. Cruz promised to review the case to see if a reduction were possible, Mr. Cruz told claimant that the odds of a reduction were good. Those statements when made would have been false because: 1) the son's guilty plea made him ineligible to file a direct appeal from the convictions; and 2) in order to determine if the case were worth pursuing, Mr. Cruz would have had to review the transcript of the guilty plea. The court docket entries showed that a motion for a transcript was first made in March 2006 (more than one year after Mr. Cruz's disbarment) and was made by court-appointed successor counsel who was told that the transcript would not be ready until August 2006. The Board concluded that Mr. Cruz could not have been working on the case because he never had the transcript. The Board found a defalcation of $2,385.00 and voted to make an award in that amount.
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