Case Abstracts for matters heard in July of 2007
CSB-2007-051 Peter Langan Schofield, Grafton, MA (Disbarred)
[This claimant and the claimants in the following abstract sought reimbursement of the same misappropriated $30,000.)
In October, 2005, claimant, as seller, signed separate purchase and sale agreements for two parcels of real estate. The buyers deposited a total of $30,000 ($15,000 per parcel) with Mr. Schofield, claimant's counsel and escrow agent for the transaction. When the parcels failed to appraise at the asking prices, buyers' counsel wrote to Mr. Schofield twice proposing an $18,000 reduction in the respective purchase prices to conform to the appraisals. When Mr. Schofield failed to reply, buyers' counsel wrote to him requesting the return of the $30,000 deposit. Mr. Schofield replied that claimant planned to keep the $30,000 as "liquidated damages" because of "the apparent conflicts if interest, your clients lack of good faith and failure to use reasonable efforts in this matter." After a brief effort at a negotiated settlement, buyers filed suit against the claimant and Mr. Schofield. In early June 2007 buyers received a final (default) judgment against Mr. Schofield for $30,000 plus $4,211.54 in interest. Mr. Schofield never delivered the $30,000 deposit to claimant or accounted to her for it. Claimant never claimed the deposit as her liquidated damages and now seeks an award only to enable her to pay the buyers in exchange for a dismissal of their suit against her. Following discussion, the Board denied the claim in light of its decision in the following abstract.
CSB-2007-011 Peter Langan Schofield, Grafton, MA (Disbarred)
In October, 2005, claimants jointly signed separate purchase and sale agreements for two parcels of real estate in Worcester. Against the purchase prices of $298,000 for each parcel, claimants deposited a total of $30,000 ($15,000 per parcel) with Mr. Schofield, seller's counsel and escrow agent for the transaction. Claimants' counsel wrote to Mr. Schofield twice proposing a reduction in the purchase prices to $280,000 to conform to the appraisals. Having received no reply from Mr. Schofield, claimants' counsel wrote to him requesting the return of the $30,000 deposit. Mr. Schofield replied that the seller planned to keep the $30,000 as "liquidated damages" because of "the apparent conflicts if interest, your clients lack of good faith and failure to use reasonable efforts in this matter." When efforts at a negotiated settlement failed, claimants filed suit against the seller and Mr. Schofield. In early June 2007 claimants received a final (default) judgment against Mr. Schofield for $30,000 plus $4,211.54 in interest. Claimants' counsel assured the Board that if an award were made to his clients, they would dismiss (with prejudice) the suit still pending against the seller. The Board found a defalcation and awarded claimants $30,000.
CSB-2007-034 Donald Jackson, Norwell, MA (Disbarred)
In July 1993, claimant and his former wife retained Mr. Jackson on a contingent fee basis to sue Carl Anderson for legal malpractice. Mr. Anderson was disbarred in September 1993 for misconduct unrelated to his work for claimants. Between October 9, 1992 and June 17, 2005, claimants paid Mr. Jackson $2,256.21 for expenses and disbursements during his unsuccessful efforts to collect a $21,571.75 judgment obtained against Mr. Anderson. Mr. Jackson responded that all of claimants' payments were for expenses or disbursements (not legal fees) for which claimants were responsible under the contingent fee agreement. Although claimants no longer had copies of all of their cancelled checks or money orders, their inventory of payments is the exact same total ($2,256.21) that Mr. Jackson admits having received as expense payments. Because the Board found that claimants paid Mr. Jackson $2,256.21 for legitimate expenses there was no defalcation and the Board made no award.
CSB-2007-063 Douglas Krabbenhoft, Randolph, MA (Suspended)
In December 2004, when claimant suspected that his former wife concealed her pension benefits during their divorce, he paid Mr. Krabbenhoft $450.00 to take legal action. During their one and only telephone conversation, in spring 2005, Mr. Krabbenhoft explained that he had filed a motion requiring the former wife's employer to disclose the value of her pension. Claimant later discovered that Mr. Krabbenhoft had not filed anything in court and never heard from Mr. Krabbenhoft again. After unsuccessfully seeking the return of the $450 fee from Mr. Krabbenhoft, claimant filed a small claims action. Mr. Krabbenhoft failed to appear and a default judgment entered. Claimant's diligent efforts to collect the judgment have been fruitless. The Board found a defalcation of $450 and made an award to claimant in that amount.
CSB-2006-090 Robert Wilson, Ayer, MA (Disbarred)
In March 2006, when he knew that Bar Counsel's petition for temporary suspension was pending before the Supreme Judicial Court, Mr. Wilson signed a fee agreement with claimant and accepted a $2,500 retainer for legal services on a domestic relations matter. Claimant stated that Mr. Wilson wrote two letters to and had one conversation with his former wife's lawyer. Because of that work, claimant conceded that Mr. Wilson may have put 3 or 4 hours into the case but is uncertain because he never received a bill. The Board found a defalcation in the amount of $2,100 and made an award to claimant in that amount.
CSB 2005-072 Anthony Raoul Bott, Orleans, MA (Disbarred)
(NOTE: Although claimant filed his claim in June 2005, the Board could take no action until counsel for the corporate defendant in claimant's lawsuit consented to waiving the confidentiality provision of claimant's settlement AGREEMENT TO disclose to the CSB the amount of the settlement he received.)
Claimant failed to find a lawyer who would take his "wrongful termination / breach of contract to rehire" suit on a straight contingent fee basis. Most insisted on an hourly rate plus expenses. Mr. Bott, however, agreed to take claimant's case for "$10,000 up front plus 30% of the gross amount collected." When claimant and Mr. Bott signed the fee agreement on September 1, 2004, Mr. Bott acknowledged that he was under investigation by Bar Counsel but claimed that "I had no idea what the timetable and/or outcome of same would be and had no duty to convey such confidential and uncertain information to [claimant] at the time I agreed to take on his case." Claimant contended that Mr. Bott "should never have accepted my case on a hybrid fee arrangement unless he disclosed his situation. Of course, if he had disclosed this material fact, I would not have hired him." Mr. Bott served as claimant's counsel until May 5, 2005, the effective date of his disbarment. During that time, Mr. Bott reported that he put in more than $24,000 worth of billable time and that, therefore, claimant was not entitled to any refund of the $10,000 retainer. Successor counsel filed his appearance on June 22, 2005 and served until the settlement and dismissal of the case on December 21, 2005. He received a $25,000 retainer (all of which was not used) and 10% of the gross recovery ($120,000) for a total of $30,035. If Mr. Bott had served as claimant's counsel until settlement and assuming the case settled for $120,000, Mr. Bott's total fee would have been the $10,000 retainer plus 30% of the $120,000 ($36,000) for a total of $46,000 (or 38.34% of the total). Claimant would have received (net of legal fees) $74,000 (or 61.66% of the total) in settlement. In actuality, claimant paid Mr. Bott $10,000 and his successor counsel $30,035 for a total of $40,035 or 33.36% of the $120,000 recovery. Claimant recovered $79,965 or 66.64% of the total. Rather than suffering economic harm, claimant gained $5,965 [$46,000 - $40,035 =] as a result of the switch from Mr. Bott to successor counsel. The Board found no defalcation and denied the claim to recover $10,000 as an unearned retainer.
CSB 2005-068 Lawrence Rizman, Brookline, MA (Suspended)
(NOTE: Although claimant filed his claim in May 2005, the Board could take no action until Mr. Rizman's discipline became final in April 2007.)
While serving a life sentence for second degree murder, claimant retained Mr. Rizman to represent him before the Parole Board on a parole reconsideration petition. They entered a written agreement dated May 25, 2004 and claimant paid Mr. Rizman the agreed-upon $2,000 retainer in three installments. One check ($1,000) was immediately negotiated for cash while the other two ($500 each) carried the endorsement of a third party to whom the checks were presumably given as payment of one of Mr. Rizman's obligations. The representation agreement required the Motion for Reconsideration to be filed not later than 45 days after the receipt of the $2,000.00 retainer. When the forty-five days passed and Mr. Rizman did nothing, claimant began to try to recover his retainer. Those efforts proved fruitless. The Board found a defalcation of $2,000 and made an award to claimant in that amount.
CSB 2007-055 Lawrence Rizman, Brookline, MA (Suspended)
During 2003, when claimant, a Massachusetts resident, was charged in Rhode Island with sexual assault, he contacted Mr. Rizman (not admitted in Rhode Island) who explained that he could represent claimant on a "pro hac vice" basis. On November 7, 2003 claimant gave Mr. Rizman a $1,500 check that Mr. Rizman immediately negotiated for cash. Even after receiving that retainer, Mr. Rizman wrote to claimant during the first two weeks of December, 2003 insisting on more money. On December 12, 2003 claimant gave Mr. Rizman a check for $3,500 that he again negotiated for cash. Mr. Rizman told claimant that his February 2004 arraignment date "was a mistake in scheduling" and "not to worry about it." According to claimant, Mr. Rizman's strategy was "to call down to the courts and 'keep pushing the date off' and eventually this will go away or the case would get old and not really important." Claimant and Mr. Rizman had several phone calls during the next few months in which Mr. Rizman assured claimant "that he was in contact with the courts and things were going all right and not to worry myself." By November 2004, when claimant could no longer reach Mr. Rizman, he went to his home office where he was told that Mr. Rizman had moved "about a month ago." Claimant then contacted a Rhode Island criminal defense lawyer for help. Successor counsel and claimant exchanged several e-mails during which counsel explained that the strategy of putting off the arraignment "makes no sense." Counsel also explained that in order for Mr. Rizman to be admitted pro hac vice in Rhode Island he would have to present a certificate of good standing from Massachusetts stating that there were "no disciplinary matters pending." Because Bar Counsel began investigating Mr. Rizman during 2004, that was most unlikely. The Board found a defalcation of $5,000 and made an award to claimant in that amount.
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