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Case Abstracts for matters heard in December of 2007

CSB 2004-061 James Wager , Salem, MA  (Disbarred)
In 1997 claimant, having resigned from his job as a successful salesperson, was in his third year as a full-time care-giver for his ill, 85-year-old father.  That same year, Mr. Wager became a tenant in claimant's multi-family home.  Mr. Wager befriended claimant and discovered an emotionally needy individual extremely vulnerable to manipulation.  Mr. Wager, a new lawyer just starting his practice, informed claimant that he did not have much money and persuaded claimant to pay for domestic and international trips, phones, and an engagement ring for Mr. Wager's girlfriend.  When claimant unwisely let Mr. Wager use his credit card, he left claimant with more than $7,000 in bills.  When the pressures of caring for his dying father caused serious psychological problems for claimant, Mr. Wager helped him apply for Social Security disability benefits which were awarded in April 2000.  Mr. Wager acted as claimant's first representative payee for the benefits.  After Mr. Wager moved out of claimant's home into different quarters, claimant retained him to collect rents from two tenants.  In November 2002, Mr. Wager stopped remitting payments of rent to claimant resulting in a total misappropriation of $11,125. Claimant also retained Mr. Wager to represent him for one personal injury and two property damage claims. Mr. Wager settled those claims without authorization and forged claimant's endorsement to insurance settlement checks resulting in a total loss of $28,449.95. Claimant sued and recovered $9,000 from the bank that had given value for the checks with the forged endorsements. A grand jury indicted Mr. Wager on fifteen charges of larceny, forgery and uttering false documents in February 2004.  He pled guilty to all charges in December 2004 and was sentenced to multiple, concurrent three-to-five year terms in state prison followed by five years of probation.  In December 2006, the trial court ordered Mr. Wager to pay $108,721.92 in restitution to his victims, of which $39,574.95 was earmarked for claimant.  The Board found a defalcation of $39,574.95 and after deducting the $9,000 recovery from the bank and the $693.50 in restitution already paid, awarded claimant $29,881.45.

CSB 2007-041 Gerard E. Battista, Norwell, MA  (Disbarred)
Claimant, an 85-year-old retired widow, retained Mr. Battista in August 2004 "to provide me with a living trust and a single trust in the event of my death."  At that time she paid Mr. Battista $1,100 not knowing he was already two years into an investigation by the Office of Bar Counsel.  Claimant made a $1,200 payment to Mr. Battista in October 2004 and received an unitemized fee statement dated 9/9/04 for $2,300. Claimant learned of Mr. Battista's disbarment from the court-appointed Commissioner in November 2006. Within one week, claimant's daughter retrieved the documents from the Commissioner and delivered them to successor counsel who reviewed the documents and explained that Mr. Battista "did not file the appropriate deeds and documents with the Registry of Deeds and also some of the documents were not executed properly and have to be re-done."  Claimant never received any meaningful work product from Mr. Battista.  The Board found a defalcation and awarded claimant $2,300.

CSB 2007-052 Gerard E. Battista, Norwell, MA  (Disbarred)
Claimant is the Administrator of the Estate of Mr. X who died March 18, 2006. During July 2004, Mr. X engaged Mr. Battista to obtain MassHealth coverage for his 86-year-old wife who was then confined to a nursing home with Alzheimer's disease. Mr. X paid Mr. Battista a $5,000 retainer from his wife's A. G. Edwards brokerage account on March 2, 2005 under his power of attorney for her affairs.  No fee agreement or accounting for the retainer was ever discovered among Mr. Battista's records by the court-appointed Commissioner.  Because of Mr. Battista's distraction with Bar Counsel's investigation, an A. G. Edwards employee did almost all of the document gathering and assembly together with Mr. X.  Although neither claimant nor the Commissioner had a copy of it, Mr. Battista apparently submitted a deficient package to the Massachusetts Medicaid Office because that office denied coverage for Mrs. X sometime before October 17, 2005.  Mr. Battista appealed that denial despite his October 7, 2005 suspension and then failed to inform Mr. X that he had to arrange for substitute counsel for two later hearings because Mr. Battista could no longer represent him. The Administrator conceded that Mr. Battista performed some meaningful legal work valued at not more than $1,500. The Board found a defalcation an awarded the Administrator $3,500.

CSB 2007-061 Gerard E. Battista, Norwell, MA  (Disbarred)
After her husband died intestate on March 19, 2005, with all major assets in his name alone, claimant met with Mr. Battista and engaged him 1) to assist with her husband's estate, and, 2) to create an estate plan for her. She was unaware that Mr. Battista was already deep into an investigation of ten complaints by Bar Counsel. Mr. Battista gave claimant a hand-written projection of the costs of the two projects ($5,500) and claimant gave him a $2,250 retainer divided between the work on her husband's estate (the bulk of which was to have been done by a "senior paralegal") ($1,250) and her estate plan ($1,000).  Claimant met with Mr. Battista on August 17 "to sign some papers" and to pay him an additional $1,000. At that meeting, Mr. Battista said "he would be in touch."  Mr. Battista failed to attend a scheduled appointment on September 28 to deliver claimant's estate plan.  Mr. Battista's paralegal never contacted claimant about the probate work. At the end of October, claimant "received the estate plan in the mail" together with a Post-It note reading: "Sorry for the delay, will be in touch, Regards, Gerry." Puzzled by these developments, claimant investigated independently and learned from the Board of Bar Overseers website that Mr. Battista had been suspended. After dealing with the shock, claimant contacted the Registry of Deeds "and found out nothing had been filed."  In May 2006, Mr. Battista returned copies of the death and marriage certificates and the deed and vehicle titles to claimant. He had done no work on making the needed changes to the deed and vehicle titles. Claimant had to retain substitute counsel and pay that counsel an additional $1,781 to perform a variety of work that Mr. Battista had left undone.  Mr. Battista never accounted for or returned claimant's retainer to her. The Board found a defalcation and awarded claimant $1,781.

CSB 2007-040 Gerard E. Battista, Norwell, MA  (Disbarred)
Claimants were estate planning clients of Mr. Battista during 1998 for which they paid him $2,250. In November 2003, they engaged Mr. Battista to update their estate plan.  Mr. Battista estimated the cost at approximately $1,700 and requested an $850 advance which the claimants paid. Almost one year later, in October 2004, Mr. Battista telephoned claimants to report that the work had been completed and that they owed him an additional $865. When, on October 20, 2004, claimant-husband personally delivered the $865 check to Mr. Battista, he received the original documents that they had lent to Mr. Battista for doing the update.  During that visit, Mr. Battista told claimant-husband that he would mail to him the updated estate plan documents and the recorded deed for the New Hampshire property.  When the promised mailing never arrived, claimant-husband left voice mail messages for Mr. Battista to which he never responded. When, in 2005, claimants read a newspaper article about Mr. Battista, claimant-husband went to the registry of deeds in Grafton, NH where he learned that the deed to their property had not been filed, although Mr. Battista had specifically billed for the filing.  After being contacted by the court-appointed Commissioner, claimants ultimately recovered their documents from him. When they delivered the documents to successor counsel, she reported that it would take between $2,100 and $2,800 in legal fees to complete the work.  The Board found a defalcation and awarded claimants $1,715.

CSB 2007-016 Gerard E. Battista, Norwell, MA  (Disbarred)
During April 2005, claimant and her husband retained Mr. Battista "to set up a family trust for us and our 9 children" and paid him a $2,000 retainer.  As recounted in a letter of October 14, 2005, demanding a return of their retainer, Mr. Battista performed no legal services for the claimants although he did manage to generate an unitemized bill (dated both before [10/1/05] and after [5/30/06] his temporary suspension) showing that the claimants owed him an additional $935. The May 30, 2006 transmittal letter stated: "Your completed work will be mailed to you shortly." The claimants never received the "completed work" or any other work from Mr. Battista but the court-appointed Commissioner did return to them the original trust documents delivered to Mr. Battista. The Board found a defalcation and awarded the claimant-widow (her husband having died shortly before the filing of this claim) $2,000.

CSB 2007-020 Michael Reed Fuller, Belmont, MA   (Disbarred)
Claimant retained Mr. Fuller following a car accident on March 17, 2000. Mr. Fuller settled the claim and the insurer issued a jointly-payable check dated May 3, 2001 in the amount of $4,900.  The Massachusetts Department of Revenue notified Mr. Fuller that it was enforcing a child support lien against the settlement proceeds.  Claimant believed that Mr. Fuller was to forward to DOR claimant's insurance settlement minus his legal fee. Only when DOR intercepted one of his tax refunds, did claimant realize that Mr. Fuller had failed to turn over his settlement funds to DOR. After learning that, claimant paid the lien balance of $4,186.15 in full by using a credit card and received a release of lien. The DOR confirmed that it never received any payment from Mr. Fuller. The Board found a defalcation and awarded claimant $3,267 ($4,900 less the 1/3 contingent fee).

 

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