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Case Abstracts for matters heard in January of 2009

CSB-2008-026 John C. McBride, Marblehead, MA (Disbarred)
During 2004, claimant retained Mr. McBride to assist with (1) a criminal matter for which he was already indicted, and (2) a personal injury matter.  Claimant had paid an estimated $5,000 cash for the criminal defense and he was to receive the $10,000 personal injury settlement, net of the contingent fee, medical liens and expenses and that McBride had misappropriated the insurance settlement.  Mr. McBride contended that claimant did not have sufficient funds to pay for the defense of four felonies and that claimant agreed to use a portion of the personal injury settlement toward the criminal defense fees to supplement the cash payments.  At an earlier date, Mr. McBride’s associate represented claimant at a pre-trial conference in Edgartown district court on the charges.  Claimant gave the associate a $2,500 retainer that she deposited into Mr. McBride’s account.   Mr. McBride represented claimant during a two-day probable cause hearing in district court.  Although the court found probable cause, Mr. McBride’s examination of the complaining witness exposed her as unreliable and confused.  That forced the prosecutor to nolle prosequi the case in superior court where Mr. McBride continued his representation.  When claimant retained Mr. McBride’s firm to represent him in a personal injury matter, he signed a contingent fee agreement, a medical records authorization and an authorization to endorse checks.   Claimant approved the $10,000 insurance settlement and picked up his $1,000 share of the settlement after deducting for the contingent fee, medical liens and the amounts that were earmarked for Mr. McBride’s services in the criminal case.  In the light most favorable to claimant, he paid Mr. McBride $5,000 in cash plus slightly less than $2,500 from the $10,000 insurance settlement the balance of which was allocated to a contingent fee ($3,333.34); medical liens ($3,200.00); and claimant’s share ($1,000.00).  The Board unanimously found no evidence of a defalcation and made no award to claimant.

CSB-2008-092 Alfred E. Nugent, Boston, MA (Deceased)
Claimant retained Mr. Nugent on February 21, 2008, to defend him on four charges: home invasion, armed burglary, armed robbery, and assault and battery with a dangerous weapon.  Claimant agreed to pay Mr. Nugent $15,000 on a fee agreement.  In three installments between February 21, and March 17, 2008 claimant paid Mr. Nugent $12,000.   Mr. Nugent died on June 7, 2008.  Between January 9, and May 8, 2008, Mr. Nugent frequently spoke with claimant by telephone and consulted with claimant’s former (court-appointed) counsel, the assistant district attorney, and court clerks.   Claimant confirmed that Mr. Nugent appeared in court twice on his behalf and docket entries show that Mr. Nugent filed twelve motions.  Claimant provided no evidence of dishonest conduct, misappropriation, or defalcation by Mr. Nugent.  Mr. Nugent’s unexpected death prevented him from completing the representation of claimant.  The Board found no defalcation and made no award.

CSB-2008-088 Steven L. Winniman, Springfield, MA  (Disbarred and Deceased) 
In August 2005, claimant asked his former counsel to transfer $10,098 to Mr. Winniman.  Mr. Winniman was to negotiate outstanding medical bills and liens arising from claimant’s 2001 car accident.  Mr. Winniman did not perform the services required.  In 2004, claimant paid Mr. Winniman $1,200 to file a voluntary bankruptcy petition.  No petition was ever filed.  The Board found a defalcation and awarded claimant $11,298. 

CSB-2008-091 Steven L. Winniman, Springfield, MA (Disbarred and Deceased) 
Claimant retained Mr. Winniman to defend her against charges of driving under the influence, lane violations, and failure to wear a seat belt and paid him a total fee of $2,500.  Mr. Winniman’s wife told the Board that the claimant was repaid her $2,500 fee, which claimant denied.  Mr. Winniman’s bank statement indicated a $2,500 withdrawal on June 30, 2008; however, claimant denies that she received any reimbursement.  Claimant’s successor counsel believed that Mr. Winniman earned not more than $600.  The Board found a defalcation and awarded claimant $1,900. 

CSB-2008-099 Steven L. Winniman, Springfield, MA  (Disbarred and Deceased)
On February 11, 2008, claimant paid Mr. Winniman $1,000 to represent her son on charges of armed robbery, possession of cocaine (second offense), and possession of heroin (second offense).  Except for filing an appearance on March 28, 2008, there is no evidence of any work by Mr. Winniman.  In February 2008, Mr. Winniman knew that he had been defaulted by the Board of Bar Overseers and that disbarment was the likely sanction.  The Board found a defalcation and made an award of $1,000. 

CSB-2008-100 Steven L. Winniman, Springfield, MA  (Disbarred and Deceased) 
In October 2007, claimant retained Mr. Winniman to defend her son in two criminal cases.  She paid him $2,000 in three installments between October and December 2007.  Mr. Winniman may have appeared in court once.  The Board found a defalcation and made an award of $2,000. 

CSB-2008-105 Steven L. Winniman, Springfield, MA  (Disbarred and Deceased)
Claimant retained Mr. Winniman to represent him in a district court criminal matter and made three cash payments to him between April 22, and June 12, 2008 totaling $2,500.  Claimant explained that a friend witnessed at least one of the three cash payments.  Either Mr. Winniman never gave receipts to claimant or claimant misplaced them.  The Board recognized this was Mr. Winniman’s customary way of conducting business based on the significant number of claimants who have alleged very similar experiences.  Although the Board usually requires receipts to evidence cash payments, the Board accepted claimant’s word that Mr. Winniman accepted these payments after he knew that the Board of Bar Overseers had recommended his disbarment.  The Board found a defalcation and made an award of $2,500. 

CSB-2009-002 Steven L. Winniman, Springfield, MA (Disbarred and Deceased)
Claimant retained Mr. Winniman in June 2008 to represent him in a criminal matter and paid him $1,700.  The fee agreement signed by claimant noted: "RETAINER AMOUNTS PAID TO THE ATTORNEY SHALL BE DEEMED EARNED AND BE NON-REFUNDABLE AS SOON AS THE ATTORNEY FILES AN APPEARANCE … ."  Mr. Winniman signed the fee agreement on June 2, 2008, two weeks before he was disbarred.  The Board found a defalcation and made an award of $1,700. 

CSB-2009-004 Steven L. Winniman, Springfield, MA  (Disbarred and Deceased) 
Claimant, an individual with a substantial number of drug convictions, retained Mr. Winniman in 2004 and paid him $1,000 to file a motion to revise and revoke a criminal sentence.  Claimant presented no evidence of "dishonest conduct" as defined by Board Rules and there was no other evidence to support a defalcation.  The Board found no defalcation and made no award. 

CSB-2009-006 Steven L. Winniman, Springfield, MA  (Disbarred and Deceased) 
Claimant retained Mr. Winniman in January 2008 on a criminal matter and paid him with two $500 money orders dated January 30, and March 3, 2008.  Mr. Winniman performed no meaningful legal services.  By January 30, 2008, Mr. Winniman knew that he had been defaulted by the Board of Bar Overseers and that it would recommend disbarment. The Board found a defalcation and awarded claimant $1,000. 

CSB-2008-102 Terrence E. Burke, Stoneham, MA (Suspended) 
Claimant retained Mr. Burke on April 24, 2007 for a divorce and paid him a $2,500 retainer plus a $220 filing fee.  At that time, Mr. Burke was 17 months into disciplinary proceedings and was unlikely to be able to complete his representation because of his impending discipline, a fact he never disclosed to claimant.  In January 2007, a hearing committee recommended an indefinite suspension which was confirmed in April 2007 and August 1, 2007.  Although Mr. Burke conferred with claimant and opposing counsel on several occasions between April and August 16, 2007, he never filed any pleadings on behalf of claimant.  Mr. Burke billed claimant for $2,600.00 for his "services" and remitted $120 (a portion of the unused filing fee).  Claimant was forced to retain substitute counsel.  Mr. Burke’s failure to disclose his imminent disbarment was dishonest conduct.  The Board found a defalcation and made an award of $2,600. 

CSB-2008-058 James S. Gregson, Saugus, MA  (Disbarred) 
One month before submitting his resignation and consent to disbarment, Mr. Gregson accepted a $1,500 retainer from claimants to evict a tenant.  Three weeks after tendering his resignation (March 6, 2008), Mr. Gregson accepted another $500 without ever disclosing to claimants that he may not be able to complete the representation.  The single justice ordered disbarment on March 21 effective April 21.  Claimants received the benefit of the filing of the summary process ($200 filing fee) but were forced to retain substitute counsel.  Mr. Gregson's failure to disclose his imminent disbarment was dishonest conduct.  The Board found a defalcation and awarded $1,800. 

CSB-2008-042 James Russell Hodgdon, Norwell, MA (Disbarred) 
On May 31, 2007, Mr. Hodgdon signed a stipulation to a 3-month suspension from the practice of law.  On June 11, 2007, Mr. Hodgdon accepted a $1,750 retainer from claimant to represent her in a divorce.  Although Mr. Hodgdon's June 30, 2007 invoice to claimant shows $350 of fees charged for the preparation of a fee agreement and letter on May 24 and divorce documents on June 14 and June 20, the commissioner appointed to take charge of Mr. Hodgdon's files and accounts notified claimant in November 2007 that he could find no divorce file or documents pertaining to her.  Mr. Hodgdon's failure to disclose his previously-tendered consent to suspension was dishonest.  Mr. Hodgdon performed no legal services for claimant.  The Board found a defalcation and awarded $1,750. 

CSB-2009-017 Bruce L. Namenson, Quincy, MA (Disbarred) 
On October 26, 2007 claimant paid Mr. Namenson $1,000 toward a $3,500 flat fee to represent him "for all events up to but not inclusive of trial" in an OUI case.  Mr. Namenson never disclosed to claimant that in February 2007, through counsel, he urged the BBO to suspend him for four months (instead of the two years sought by Bar Counsel).  Mr. Namenson's temporary suspension was ordered by the Court on December 24, 2007 because of his November 14, 2007 indictment on 22 counts of motor vehicle insurance fraud and 72 other related charges.  Although Mr. Namenson obtained a continuance for claimant (December 5 to Jan 8, 2008) he did nothing more. Claimant was forced to retain substitute counsel.  Mr. Namenson's failure to disclose both his consent to an imminent suspension and his impending indictment was dishonest conduct.  The Board found a defalcation and awarded $1,000.
 

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