Case Abstracts for matters heard in December of 2006
CSB-2005-005 Anthony P. Mondello, Lowell, MA (Deceased)
Claimants' grandmother was Mr. Mondello's original client for whom he prepared a will (1988) and a trust (1995). The trust provided for the grandmother during her life with the remainder going to her two grandchildren (the brother and sister claimants) after her death (August 2003). At the grandmother's funeral, Mr. Mondello explained to the grandaughter that the grandmother's trust had provided for her and her brother and invited her for a meeting. In meetings during late 2003 and through July 3, 2004 (the date of Mr. Mondello's death), he gave conflicting explanations about the trust assets and taxes and other expenses that had to be paid. In May 2004, Mr. Mondello gave $25,000 to the claimant-grandaughter followed by a June payment of $6,150.24. Accompanying the June payment was a separate check for $45,000 that the grandaughter-claimant held at Mr. Mondello's request for one week after receiving it to enable him to tranfer funds to cover it. The $45,000 check bounced and was never successfully negotiated before Mr. Mondello's death. Claimants presented two "accountings" in Mondello's handwriting that could be considered reliable and credible as admissions against his own financial interest. One accounting showed the payment of approximately $25,000 in taxes. Claimants' counsel presented an affidavit from a lawyer/CPA asserting that neither the trust nor the estate paid any taxes. The Board determined that because of Mr. Mondello's less-than-adequate record-keeping and his falsification of bank statements, it was impossible to determine the exact amount of his defalcation. However, the Board viewed the $45,000 bounced check plus the $25,000 false representation concerning the payment of taxes to be Mr. Mondello's minimum defalcation. After deducting the $31,000 (already paid to the grandaughter) from the $70,000 (total defalcation), the Board determined that the net defalcation was $39,000. Because the grandmother's trust awarded a 2/3 share to the grandaughter ($46,667) and a 1/3 interest to the grandson ($23,333), the Board found a defalcation of $39,000 and voted to make respective awards of $15,666.66 ($46,667 minus $31,000) and $23,333 to the granddaughter and grandson.
CSB-2007-015 Richard D. Murphy, Fitchburg, MA (Disbarred)
Mr. Murphy was one of three lawyers who represented claimants, husband and wife, before a local planning board as they sought to obtain a permit to expand their nine-cottage motel to a 39-unit, two-story building on their four-acre site. When 90 days elapsed after the first public hearing without a decision by the planning board, claimants' counsel (but not Mr. Murphy) filed a Notice of Grant of Special Permit notifying the town clerk, the board and all other interested parties that claimants' permit was constructively approved and that the board had a right to appeal. After the board successfully appealed to the District Court, Mr. Murphy represented claimants on a series of appeals during which he manufactured and forged court decisions and orders showing claimants that their appeals had succeeded. When claimants later discovered Mr. Murphy's fraudulent conduct, their financial backer withdrew his commitment to fund the project, fearing an indeterminate delay in obtaining approval from the town. A witness for the claimants, an experienced bankruptcy lawyer, testified that Murphy's conduct was a "defalcation" as defined by the U. S. Court of Appeals for the First Circuit in In re Baylis, 313 F.3d 9 (1st Cir 2002), (examining the non-dischargeability of debt under the Federal Bankruptcy Code). The losses suffered by claimants because the project plans collapsed were substantial. They sued all the lawyers (and their supervisors) who had represented them and recovered $60,000 from those who settled. They obtained a default judgment against Murphy in excess of $1.5 million. Claimants testified about the serious health problems that befell them during the extended episode with Mr. Murphy and how his misbehavior destroyed their retirement plans. They also testified that their son built a house for them and that their property is worth approximately $500,000 even after they made a gift of approximately one acre to their son. The Board found that under its Rule 2 (d) there was no defalcation or embezzlement of money or the wrongful taking or conversion of money, property, or other things of value belonging to claimants and unanimously declined to make an award.
CSB 2006-053 Alan Mason, Princeton, MA (Disbarred)
Claimant's confidential financial statement identified his occupation as "real estate investor." In October 2005, he made a $40,000 loan to a named "title insurance company" and in November 2005 he delivered a $60,000 check payable to a named individual, who was one of the managers of the "title insurance company" for no specified purpose. In late November 2005, claimant received a $60,000 check drawn on Mr. Mason's IOLTA account plus $5,000 cash and sought to recover the $35,000 shortfall. Because claimant introduced no evidence showing the existence of a lawyer-client relationship between Mr. Mason and himself and no evidence of a defalcation by Mr. Mason, the Board voted unanimously to make no award.
CSB 2006-059 Alan Mason, Princeton, MA (Disbarred)
In March 2005, at the urging of a non-lawyer allegedly associated with Mr. Mason, claimants deeded their home (then in foreclosure) en blanc for a supposed life tenancy at $1,000 per month, with promised improvements to and ongoing maintenance of the property. Claimants consulted their own lawyer before signing the deed. During April 2005, another non-lawyer appeared at claimants' door, told them he was the new owner of their house, and raised their rent to $1,700. The mortgage loan was never paid off and claimants continued to be in arrears when they filed this claim. Claimants estimated their losses at approximately $300,000 and believed that Mr. Mason was behind the entire scheme. Because claimants introduced no evidence of a lawyer-client relationship between Mr. Mason and them and no evidence of a defalcation by Mr. Mason, the Board voted unanimously to make no award.
CSB 2006-058 Raoul Anthony Bott, Orleans, MA (Disbarred)
During the summer of 1998 claimant, age 19, worked for a landscaping company to earn money for college. An electric hedge clipper he was operating cut his thumb down to the bone, causing serious injury. He and his parents retained Mr. Bott on a contingent fee basis to recover damages from the manufacturer of the clipper. After submitting a detailed demand for more than $600,000, Mr. Bott, without any authorization or consent, settled the claim for $35,000 and used the entire amount for his business or personal benefit. The Board found that Mr. Bott sold claimant's suit short, thereby forfeiting his contingent fee. The Board determined there was a $35,000 defalcation and made an award to claimant in that amount.
CSB-2004-083 Barry B. Teicholz, West Roxbury, MA (Disbarred)
Claimants were involved in divorce proceedings during November - December 2000, when claimant-husband paid Mr. Teicholz a $2,500 retainer to represent him in the divorce action. Claimant-wife was represented by separate counsel. Claimants sold their marital home and the net proceeds were temporarily escrowed with a realtor. On December 6, 2001, Mr. Teicholz directed the realtor to transfer the escrowed funds ($45,693.23) to his IOLTA account. The transfer took place the next day. Documents refute Mr. Teicholz's claim that "I have no memory of nor do I believe that I did hold any money of the parties." According to claimant-wife, each claimant received a distribution of $16,381.14 from Mr. Teicholz, leaving a balance of $12,930.95 in his custody. While both claimants disputed how the balance of the proceeds should be apportioned, Mr. Teicholz used the remaining funds for his benefit during the period February 2002 to October 2003. The Board determined there was $12,930.95 defalcation and voted to make an award in that amount divided equally (with their consent) between both claimants.
CSB-2006-047 John C. McBride, Marblehead, MA (Disbarred)
On October 30, 2002 claimant paid a $3,000 retainer to Mr. McBride's firm to represent her brother-in-law on a criminal matter. The court's docket entries showed that Mr. McBride filed his appearance on behalf of claimant's brother-in-law on November 13, 2002 and attended hearings on August 4, and August 20, 2003. During July, the court admonished Mr. McBride for failing to attend a hearing and the docket entries showed that an order was to have been sent to Mr. McBride assessing him the costs of Commonwealth's witnesses for the date of Mr. McBride's unexcused absence. On August 27, 2003, an associate in McBride's office, appeared for a report. At the November 26, 2003 hearing on the motion to suppress, Mr. McBride was no longer representing claimant's brother-in-law, apparently having been replaced by another attorney. The Board determined that there was no defalcation, the matter was a fee dispute and made no award.
CSB-2006-043 John C. McBride, Marblehead, MA (Disbarred)
Taking a friend's advice, claimant (a member of a traditional ethnic group) hired Mr. McBride after being arrested and paid him an $8,000 retainer that her mother gathered. Claimant's mother gave her a June 20, 2005 check for $3,000 payable to Mr. McBride and then collected $5,000 "from friends and other relatives that we have no real records that can prove the amount or source" of the money. Mr. McBride did not give claimant a receipt for the $5,000 in cash. For claimant's appearances in district court on September 7 and October 15, 2005, Mr. McBride sent over an associate from his office. For the next two hearings in November and December '05, Mr. McBride advised claimant that neither he nor his associate was available to appear because of other court commitments. Although Mr. McBride promised claimant an associate of his for the February '06 hearing, no one from his office appeared. Claimant first learned at her court appearance that McBride had been disbarred and could no longer represent her. The Board determined that there was a defalcation of $8,000.00 and made an award in that amount.
CSB-2006-038 Louis A. Guidry, Andover, MA (Suspended)
Claimant was a mentally disabled, unemployed adult on SSI. Claimant explained that he engaged Mr. Guidry in May 1999 (almost immediately before Mr. Guidry was suspended). Claimant contended that his father, who accompanied him to the initial consultation with Mr. Guidry, paid him a retainer of $8,000. Claimant also contended that because of the suspension, Mr. Guidry could no longer represent him and never returned the unearned retainer. Mr. Guidry responded to the claim and presented evidence that claimant actually retained him in February 1999 and paid him a retainer of $2,000 against which he was to bill at $150/hour. Mr. Guidry presented (i) a retainer check from claimant's father dated February 23, 1999, and, (ii) a wide variety of court papers and correspondence to and from opposing counsel for the period February 1999 through May 21, 1999 showing his representation of the claimant. According to a handwritten timesheet submitted by Mr. Guidry, he logged 16.5 hours on claimant's behalf between February 23 and May 24, 1999 totaling $2,475.00 in legal fees, exceeding the $2,000 retainer. With consent from claimant and his father, Mr. Guidry, when his suspension was imminent, referred claimant to another attorney, who represented him at the divorce hearing on June 9, 1999. The Board determined that there was no defalcation and made no award.
CSB-2006-075 Maurice Fitzgerald, Lexington, MA (Disbarred)
Claimant's attorney informed the Board that claimant paid $6,500.00 in fees to Fitzgerald (confirmed by copies of cancelled checks) to represent claimant in a partition matter and in a personal injury claim. Mr. Fitzgerald did no work as confirmed by successor counsel hired by claimant. The Board determined that there was a defalcation of $6,500.00 and made an award to claimant in that amount.
CSB 2007-002 Gerald Hicks, Randolph, MA (Deceased)
Claimants (husband and wife) paid Mr. Hicks $3,000 to complete the legal work necessary for them to obtain U.S. citizenship. The first payment of $1,500 consisted of money orders and cash. The second payment of $1,500 was paid in cash on December 13, 2005. Claimants received no receipt for either payment. Claimants received a letter on August 4, 2006 from Mr. Hick's office staff informing them of his death and advising them to seek new counsel. Claimant-husband responded in a letter explaining that he and his wife paid $3,000 for an entire immigration proceeding and requested a refund of $1,500 because only one-half of the immigration process was completed. The law office ignored claimants' request. The Board determined there was an unearned retainer of $1,500 and voted to make an award in that amount.
CSB 2006-015 David Ulin, Ashland, MA (Disbarred)
Claimant retained Mr. Ulin to perform the legal services necessary to obtain permanent residency for himself, his wife, and his two children. Claimant submitted copies of checks from July of 2002 through September of 2002 to Mr. Ulin totaling $7,755. Claimant said he paid Mr. Ulin an additional $3,210 for filing fees and expenses. By letters to Mr. Ulin dated May 20, 2004, June 15, 2004, and August 23, 2004, claimant's successor counsel demanded the return of the unearned portion of the legal fee which he calculated as $4,755. The Board determined that there was a defalcation of $7,755.00 and made an award to claimant in that amount.
CSB 2006-021 Douglas M. Callaghan, Brighton, MA (Disbarred)
During October 2003, claimant hired Mr. Callaghan to represent him in a post-divorce proceeding. They entered into a written fee agreement and claimant paid Mr. Callaghan $2,000 by November 2003. Mr. Callaghan attended a March 2004 hearing on claimant's behalf and then did no further work on the matter. In July 2004, Mr. Callaghan wrote to claimant explaining that he was closing his law practice and asked claimant to allow a couple of weeks to return his unearned retainer. Claimant never again heard from Callaghan. The Board determined that there was a defalcation of $1,875.00 and made an award to claimant in that amount.
CSB 2006-023 Douglas M. Callaghan, Brighton, MA (Disbarred)
During October 2003, claimant hired Mr. Callaghan to represent him in a divorce proceeding and they entered into a written fee agreement. Claimant paid Mr. Callaghan $2,000 between October 31 and December 1, 2003. On November 7, 2003, Mr. Callaghan filed an answer to the complaint for divorce and then ceased work on the case. In July 2004, Mr. Callaghan wrote to claimant explaining that he was closing his law practice and asked claimant to allow a few weeks to return the unearned retainer. Claimant never again heard from Callaghan. The Board determined that there was a defalcation of $2,000.00 and made an award to claimant in that amount.
CSB 2006-014 William E. Gately, Braintree, MA (Disbarred)
During March and April 2005, claimant paid Mr. Gately a total of $559 for filing fees and partial legal fees to file a Chapter 7 bankruptcy. From the end of April through September 20, 2005, claimant repeatedly attempted to contact Mr. Gately by telephone and certified mail to learn the status of her bankruptcy petition. When Mr. Gately finally contacted claimant, he informed her of a September 20, 2005 hearing on her petition and arranged to meet her at his office on that day. When Mr. Gately failed appear, claimant went to the Bankruptcy Court planning to appear pro se in case Mr. Gately failed to appear in court. There, claimant learned not only that her case was not scheduled for a hearing that day but also that Mr. Gately never filed her bankruptcy petition. Claimant promptly retained substitute counsel who filed a petition on October 13, 2005 that successfully resulted in an order of discharge. The Board determined that there was a defalcation of $559 and made an award to claimant in that amount.
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