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Case Abstracts for matters heard in February of 2008

CSB 2007-029 Alan B. Mason, Worcester, MA (Disbarred)
During February 2005, claimant, a major division of a parent corporation whose stock is traded on the New York Stock Exchange with total assets of approximately $35 billion, purchased a $164,000 promissory note and the mortgage securing it.  During March 2005, claimant's mortgagor, Mr. X, sold the underlying property to Mr. Y for $225,000.  Mortgage Company Z acted as Mr. Y's lender for the transaction and was represented at the closing by Mr. Mason. Claimant alleges it was never notified of the sale and never received the pay-off of the promissory note it held.  Nevertheless, claimant "erroneously issued a discharge of mortgage" on Mr. X's property. Mr. Y's lender, Mortgage Company Z, presumably advanced sufficient funds to Mr. Mason to pay the note held by claimant.  That was confirmed when Mr. Mason issued two NSF checks to claimant each for $164,923.93. Mr. Mason apparently used the funds for his own purposes.  In December 2005, claimant filed suit in Suffolk Superior Court against Mortgage Company Z and Messrs. X and Y.  That case is still pending. The Board, in the exercise of its discretion, after considering the totality of the circumstances, declined to make an award.

CSB 2007-054 Richard H. Wynn, West Roxbury, MA (Disbarred)
In August 1999, claimant retained Mr. Wynn to represent her in a personal injury (auto accident) claim.  In March 2001, Mr. Wynn forged claimant's name on a release and settlement of her claim and sent it to the insurer that promptly issued a check for $18,000. Mr. Wynn deposited this check into his IOLTA account after forging claimant's endorsement, and used claimant's share of the settlement for his own purposes. In the absence of any evidence that Mr. Wynn sold the claim short, the Board credited him with a 1/3 contingency fee and awarded claimant $12,000. 

CSB 2007-065 William E. Gately, Jr., Braintree, MA (Disbarred)
Claimant retained Mr. Gately in March of 2005 to file a Chapter 7 bankruptcy petition and paid him a fee of $655.  During April, claimant met with Mr. Gately and signed the petition. Despite Mr. Gately's assurances to help claimant, he failed to contact claimant's creditors and failed to file the petition.  The Board found a defalcation and awarded claimant $655.

CSB 2008-027 Theodore S. Geller, Worcester, MA (Disbarred)
During late 2005, in preparation to sell vacant land she owned, claimant retained Mr. Geller and paid him a $1,500 retainer in three installments to correct a non-conforming use on a plot adjoining hers.  Mr. Geller negotiated one retainer check for cash.  When claimant complained to the Office of Bar Counsel during August, 2006, Mr. Geller responded with a single-page letter and a billing statement noteworthy for its lack of detail.  When claimant called the town with whose zoning authorities Mr. Geller claimed to have met, the zoning department denied any contact with him. The Board found a defalcation and awarded claimant $1,500.

CSB 2008-025 Theodore S. Geller, Worcester, MA (Disbarred)
In August 2007, claimant retained Mr. Geller and paid him a $400 retainer (in two installments) to file a chapter 7 bankruptcy petition for her. Mr. Geller visited claimant's home in November to pick up the second retainer installment payment and reviewed claimant's past due bills that were to be included in the petition. Claimant never again heard from Mr. Geller.  The bankruptcy court database shows no filing was made by Mr. Geller on behalf of claimant. The cancelled check for the first $200 installment shows that Mr. Geller negotiated it for cash. The Board found a defalcation and awarded claimant $400.

CSB 2007-039 Emile E. Morad, New Bedford, MA (Disbarred)
Claimant was a high-ranking officer of a municipal police department who had been wrongfully dismissed by a new chief. Claimant recovered $100,000 from his suit against the municipality and the new chief.  A few years later, after the new chief had been disciplined, he (the chief) sued the municipality, claimant and several other former officers alleging they were responsible for the untrue charges that lead to his suspension.  Claimant and two other individual defendants engaged Mr. Morad (a friend) to defend them, to remove the matter to federal court and to file a counterclaim. Although there was no written fee agreement, the reported financial terms were unusual:  "No money was given.  Mr. Morad said he would take 1/3 of the suit, if we win [the counterclaim]."  When the suit settled 19 months later, the municipality paid the former chief $175,000 plus $16,907.52 in lost benefits and paid claimant and his two colleagues "$20,000 representing expenses incurred and losses suffered relative to this matter."  Claimant expected "$5,000 for my share" but received only $2,000. The other two colleagues received $4,000 and $1,000, respectively, from Mr. Morad who retained the balance of $13,000 for his fee and to cover the expenses. Mr. Morad filed a reply with the Board denying any understanding that claimant would receive $5,000 and reporting that the $2,000 "was gratuitously given to him by me from my fee."  The Board found no defalcation because the evidence, in the light most favorable to claimant, showed a possible fee dispute but no defalcation.
 

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