Case Abstracts for matters heard in February of 2007
CSB-2006-041 Jon F. Conant, Gloucester, MA (Disbarred)
Between 1990 and 2003, Mr. Conant served as personal attorney to the 81-year-old claimant as well as a director and trustee of her foundation. Claimant was born into a family of means, attended finishing school, became a victim of physical and emotional abuse during multiple marriages, suffered from alcoholism and addiction to prescription drugs and had all of her finances managed by her brother until his death in 1990. At that time, claimant was a beneficiary of a $5+ million revocable trust and a beneficiary of two irrevocable trusts. Her annual income from the trusts was approximately $600,000. After claimant's brother died in 1990, Mr. Conant, a psychologist and another attorney insinuated their way in claimant's life. Mr. Conant served as her personal attorney, her attorney-in-fact under a durable power of attorney, as a trustee of her revocable trust and trustee (later) of her foundation. In those capacities, he began a systematic, decade-long misappropriation of claimant's assets. In April 1992, he persuaded claimant to establish a foundation into which Mr. Conant transferred more than $500,000 ostensibly to benefit Head Start children, the disabled, and the elderly by providing exercise, physical therapy and recreation at an indoor swimming pool on property owned by the foundation. Claimant's current counsel presented evidence showing $4 million in losses due to Mr. Conant's malpractice and $1,008,948 in defalcations. Mr. Conant was in the midst of disciplinary proceedings when he filed for Ch. 7 bankruptcy protection in October 2004 halting claimant's suit against him in superior court. Claimant's counsel won relief from the automatic stay in bankruptcy and continued the suit to a negotiated settlement of $672,000 ($1,000,000 malpractice insurance policy limit minus the insurer's defense costs of $328,000). Mr. Conant demanded that the agreement for judgment state that the conversion count was limited to $500,000, was subject to the bankruptcy discharge order and created no obligation against Conant's personal assets except "to the extent of available insurance coverage." The Board agreed that it would not deem itself limited by the agreement for judgment but took into consideration the economic benefit claimant received from the creation of the foundation. The Board found a defalcation of $500,000 and made an award to claimant personally in that amount.
CSB-2006-048 Edson Howard Rafferty, Canton, MA (Suspended)
Claimants (father and his adult daughter) explained that they retained Mr. Rafferty in April 2003 to recover $35,000 in fees they paid to Attorney A to defend their son and brother on an armed robbery charge. Claimants dismissed Attorney A before trial believing that he committed malpractice and failed to earn his fee. Claimants and Mr. Rafferty entered into written fee agreement that called for a $5,000 retainer against which he would bill his time at $285/hour and his associate time at $195/hour. Whenever the retainer balance dipped below $1,000 it was to be replenished with an additional $2,500. In December 2003, Rafferty sent a 93A demand letter to Attorney A and in January 2004, he sent to the Office of Bar Counsel a letter on behalf of claimants complaining about Attorney A's conduct. Bar counsel deemed the complaint to be a fee dispute and closed its file. Attorney A agreed to binding arbitration before the MBA Fee Arbitration Board and also agreed to pay the fees associated with the arbitration. Mr. Rafferty filed the Petition to Arbitrate in August 2005 requesting a hearing before the end of September 2005 because he was scheduled for surgery in October. Because the hearing was not scheduled before Mr. Rafferty entered the hospital, he had to refer claimants to Attorney B who, ultimately, was unable to represent claimants. Because Mr. Rafferty was in a coma as a result of his surgery, claimants sought out another attorney to represent them for the arbitration hearing and were forced to pay him an additional $10,000+ that claimants believed was unjustified. Claimants sought the recovery of the $5,000 retainer they paid to Mr. Rafferty. The Board determined that the claim was a fee dispute and made no award to claimants.
CSB-2007-006 Peter Langan Schofield, Grafton, MA (Disbarred)
Mr. Schofield represented claimants in the sale of their home in early March 2006. Because they had already relocated to New York State, claimants gave Mr. Schofield a power of attorney to represent them at the closing. Mr. Schofield mailed two checks ($68,274.53 and $16,000.00) to claimants. Both checks were dishonored for insufficient funds. When Mr. Schofield was unresponsive to claimants' demands for their money, they filed a complaint with the Office of Bar Counsel and with the local police. Mr. Schofield resigned and consented to disbarment for this conduct on May 25, 2006. The Board found a defalcation of $84,274.53 and made an award to claimants in that amount.
CSB-2007-004 Anthony Raoul Bott, Orleans, MA (Disbarred)
Claimant, age 71, slipped, fell and injured herself at a Cape Cod hotel in October 2003. Her injuries required surgery, extended hospitalization, lengthy rehabilitation and left her permanently, partially disabled. Claimant and her husband retained Mr. Bott in January 2004 to recover damages and paid him $300 as an advance for expenses. In July 2004, Mr. Bott, without claimants' authorization or consent, forged their signatures to a release and collected $200,000 from the insurance company. He paid a Medicare lien of $20,163.75, never accounted for the $300 advance and used the balance of the settlement for his business or personal benefit. The Board found a defalcation of $180,136.25 and made an award to claimants in that amount.
CSB-2006-055 John C. McBride, Marblehead, MA (Disbarred)
On August 3, 2005, two days before he was disbarred, Mr. McBride agreed to defend claimant's son on a criminal charge. In her own words, claimant "was desperate for help and inexperienced in seeking legal counsel." Claimant gave Mr. McBride a check for $2,500, which was all the money she had at the time. Three days later, Mr. McBride told claimant that he knew the assistant district attorney handling her son's case and that everything "was going to be fine." Claimant then gave McBride a second check for $2,500 dated August 9, 2005. One week later, when claimant discovered Mr. McBride's disbarment, she called his office and left several messages. When he failed to respond, claimant, accompanied by a witness, went to Mr. McBride's office, confronted him and asked for the return of her $5,000. Mr. McBride refused, saying that his associate would represent her son. Claimant acquiesced believing that she would otherwise lose the entire fee. The associate appeared at two of six or more court appearances and then informed claimant that he could not continue to represent her son unless he was paid. Claimant hired the associate and paid him an additional $2,500. The Board found a defalcation of $5,000.00 and made an award to claimant in that amount.
CSB-2006-076 Alan Mason, Princeton, MA (Disbarred)
In March 2002, claimant paid Mr. Mason $5,330 to assist with the purchase of a small (75' x 35') parcel of land adjacent to claimant's house and then to incorporate that small parcel into the deed covering his house and lot. Claimant had always paid the real estate taxes on that adjacent small parcel based on the real estate tax bill that is addressed to "unknown owners c/o [claimant]." Claimant did not know what the purchase price of the property might be or how Mr. Mason would proceed. Nevertheless, Mr. Mason promised the process, once initiated, would take 3 to 5 months. During the next 45 months, claimant telephoned Mr. Mason at least monthly inquiring about his progress and was assured that the matter had not been forgotten and that Mr. Mason and his associates would be "working on it soon." Claimant recalled Mr. Mason telling him that the matter had been assigned to three different associates but that none had taken steps to acquire the adjacent parcel. Finally, claimant met with Mr. Mason on December 28, 2005 at which time Mr. Mason informed him that he was about to retire from the practice of law. Mr. Mason did not disclose he was about to submit his resignation and consent to disbarment. Mr. Mason agreed to refund the legal fee to claimant after claimant faxed a copy of his March 2002 cancelled check to him. Claimant never received any response or refund from Mr. Mason. The Board unanimously found a defalcation of $5,330.00 and made an award to claimant in that amount.
CSB-2006-082 Maurice Fitzgerald, Lexington, MA (Disbarred)
When claimant's building contractor abandoned a renovation project on her house she had no financial leverage over him because she had paid almost all of the money due him. Claimant was referred to Mr. Fitzgerald and met with him on July 18, 2005, five days after he was administratively suspended from the practice of law. Mr. Fitzgerald agreed to represent claimant and requested a $3,500 retainer. Claimant gave Mr. Fitzgerald a $3,500 check on August 18, 2005 and he cashed it that very day. Mr. Fitzgerald contacted claimant's contractor and arranged a visit to claimant's home to review a lengthy punch list. The contractor was ready and willing to return to claimant's home after Labor Day to complete the work. However, without notice to claimant, Mr. Fitzgerald told the contractor that he was much too busy with "some really important court cases" and had no time to oversee the contractor's work. Not being able to contact Mr. Fitzgerald, claimant incurred additional costs when she hired another contractor to complete the work. For the next two months claimant unsuccessfully tried to reach Mr. Fitzgerald. Thinking that he might be seriously ill, claimant telephoned him at his home in late October. He was exceedingly apologetic and offered to bring her flowers. Claimant explained that she preferred the return of her money. Her demand letter to Mr. Fitzgerald in October 2005 received neither a response nor a refund. The Board found a defalcation of $3,500.00 and made an award to claimant in that amount.
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