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Case Abstracts for matters heard in July of 2008

CSB 2008-016 Adrian A. Gaucher, Jr., Southbridge, MA (Disbarred)
Claimant is the special administrator of the estate of Mr. Gaucher, Jr's. mother.  Between December 1992 and August 1994, acting under a general power of attorney from his mother, Mr. Gaucher, Jr. misappropriated almost the entire corpus of her trust ($338,498.18). Half of the misappropriations ($170,000) were disguised as loans for which he signed unsecured, 0% interest, demand promissory notes. When he filed for bankruptcy protection in 1998 and attempted to have the notes discharged, his mother's guardian filed an adversary proceeding to have the entire alleged misappropriation declared non-dischargeable.  Following an evidentiary hearing, the bankruptcy court issued detailed findings of fact and conclusions of law denying discharge as to $338,498.18. That decision was the basis of Supreme Judicial Court's order disbarring Mr. Gaucher, Jr. in December 2005. Mr. Gaucher, Jr. presented a copy of a 1992 handwritten, notarized, codicil to his mother's will that would have effectively forgiven Mr. Gaucher, Jr's. indebtedness to his mother's trust and to her estate.  He argued that the codicil nullified the bankruptcy court order denying discharge and SJC judgment of disbarment and that the Board would be compounding the error of those decisions by vesting them with any collateral estoppel power.  Claimant presented November 2007 findings of fact in a Worcester Probate Court proceeding that characterized the 1992 codicil "as part of a plan together with the POA to deplete [the mother's] assets and cover evidence of fraud upon her death." Those findings are now under review by the Bankruptcy Court because Mr. Gaucher, Jr. has argued that the hearing on which the Worcester Probate Court findings were based was conducted in violation of the automatic stay of November 26, 2007 when he filed a voluntary chapter 7 petition. Claimant also reported that the mother's estate was soon to receive, pursuant to a negotiated settlement, $95,000 from a bank trustee of the mother's trust at the conclusion of the Probate Court proceedings. The Board found a defalcation and made a provisional award of $243,498.18 ($338,498.18 - $95,000.00) to claimant in his representative capacity subject to the Board receiving evidence of the finality of Worcester Probate Court decision.

CSB 2007-056 Leonard S. Lakin, Sudbury, MA (Disbarred)
Claimant's mother, who died in April 2005, created a family trust. Mr. Lakin, the mother's long-time advisor, trustee and executor, informed claimant that her mother had been in debt and encouraged claimant to sell a portion of the trust's assets.  As co-trustees, claimant and Mr. Lakin completed the sale in August 2005 that produced $208,926.49.  Mr. Lakin deposited $200,000 into two trustee bank accounts that he alone controlled and used the balance to pay legitimate obligations of the mother's estate. Although Mr. Lakin paid some additional bills of the estate and made some distributions to the beneficiaries, he admitted in his disciplinary proceedings to misappropriating $188,781.  He paid claimant (now the sole trustee) $50,000 as partial restitution leaving an unpaid obligation of $138,781. The Board found a defalcation and made an award of $138,781 to claimant as trustee of the family trust.

CSB 2007-048 Stuart H. Sojcher, Winchester, MA (Disbarred)
Mr. Sojcher served as the lender's attorney when claimant sold her home in August 2001.  Before buyer's lender wired $222,202.22 into Mr. Sojcher's bank account for the closing, claimant and Mr. Sojcher agreed that he would escrow $25,000 from the sale proceeds pending his receipt of the discharge of a $10,000 second mortgage on claimant's home.  When claimant filed a voluntary chapter 7 bankruptcy petition in August 2000 she had reaffirmed her obligation to the first mortgagee but had received a discharge with respect to the second mortgage obligation. Because of some technical questions about second mortgagee's receipt of actual notice of claimant's bankruptcy, the second mortgage remained as a lien of record.  Without claimant's knowledge, the second mortgagee settled with buyer's title insurer and received $14,000 in full settlement of his mortgage. That eliminated his contested claim to be paid from the now-misappropriated escrow once held by Mr. Sojcher. In a letter to the Board immediately before the hearing Mr. Sojcher confirmed claimant's right to recover the misappropriated amount. The Board found a defalcation and made an award to claimant of $11,000 ($25,000 - $14,000, the benefit received from the insurance settlement with second mortgagee). 

CSB 2007-030 Daniel R. Kirkpatrick,  Barre, MA (Disbarred)
Mr. Kirkpatrick had represented claimants (husband and wife) for twenty years when they retained him for several inter-related real estate transactions in 2005. Although two sales were delayed because of Mr. Kirkpatrick's negligent legal work, they ultimately closed.  From one sale Mr. Kirkpatrick withheld $4,300 for his legal fee.  Mr. Kirkpatrick provided no accounting of the work he did; his negligence caused claimants to pay an additional $7,000+ in expenses; and he admitted to claimants that they were due more than $4,300. The Board found a defalcation and made an award to claimants in the amount of $4,300.

CSB 2006-049 William E. Gately, Braintree, MA (Disbarred)
During March 2004, a car hit and injured claimant while he was riding a motorcycle.  He received immediate treatment at a hospital emergency room, but was never admitted as a patient.  One week later, he received additional outpatient treatment followed by physical therapy.  In March 2006, claimant signed a 1/3 contingent fee agreement with Mr. Gately.  In 2007, Mr. Gately received a $12,000 insurance settlement check that he endorsed (with authority contained in the fee agreement) and deposited into his IOLTA account.  He never delivered any part of the net proceeds to claimant.  The Board found a defalcation and awarded claimant $8,000 crediting Mr. Gately with his contingent fee in the absence of evidence that he sold the claim short.

CSB 2008-033 Theodore S. Geller, Worcester, MA (Disbarred)
The facts underlying this claim represent one count of the Petition for Discipline in response to which Mr. Geller submitted his resignation and consent to disbarment. In December 2004, claimant carried $32,662 in undeclared U. S. currency when he attempted to leave the United States. Customs officials seized $31,000 and left claimant with $1,662.  In early 2005, claimant hired Mr. Geller and paid him $400 to reclaim the seized funds. Mr. Geller recovered the funds ($31,000) in October 2005, placed them into his IOLTA but never informed claimant of the recovery.  Over the next twenty-one months (October 2005 until June 2007), Mr. Geller dribbled out $21,750 to claimant in installments and never paid to claimant or accounted for the balance: $9,250.00.  The Board found a defalcation and made an award to claimant of $9,250.00.

CSB 2008-045 Theodore S. Geller, Worcester, MA (Disbarred)
Claimant engaged Mr. Geller to collect her share of the recovery in a prescription drug class action suit filed by Mississippi counsel. There was no fee agreement and no understanding concerning Mr. Geller's billing rate. During Bar Counsel's disciplinary investigation Mr. Geller gave an interview under oath in which he admitted both a lawyer-client relationship with claimant and his conversion of claimant's funds. He estimated that he owed claimant approximately $7,000 without attempting to further quantify the amount. From claimant's own accounting and Mr. Geller's IOLTA records, Mr. Geller paid claimant $14,950.00 of the $31,332.54 Bar Counsel reported he collected on claimant's behalf. After estimating a reasonable fee for Mr. Geller, the Board found a defalcation in the amount of $15,882.54 and made an award to claimant in that amount.

CSB 2008-041 Theodore S. Geller, Worcester, MA (Disbarred)
Claimant and his wife separated in January 2001 after six months of marriage.  In July 2001, claimant retained Mr. Geller to represent him in the divorce proceeding for an agreed upon fee of $1,500. Claimant paid Mr. Geller a total of $950 toward the $1,500 fee leaving a balance due of $550. As part of the divorce, the marital home was sold and the proceeds divided by order of the court. From the proceeds, Mr. Geller received $1,500 in legal fees and $3,000 that represented claimant's share of the sale proceeds. Mr. Geller kept the $3,000 for himself and the legal fees totaling $2,450 (the original $950 paid by claimant plus the $1,500 from the proceeds of the sale of the marital home).  That was a misappropriation of an additional $950 ($2,450 - $1,500 = $950). After the divorce, claimant's financial situation deteriorated.  In September 2002, he engaged Mr. Geller to file for bankruptcy protection and paid him a $200 retainer.  Mr. Geller apparently prepared a form letter to creditors in December 2004 but never filed a petition on behalf of claimant.  Claimant was on active Air Force duty in Qatar from April 2003 until January 2004 (with a brief furlough in July 2003) and was unable to monitor Mr. Geller's legal work during that time.  The Board found a defalcation of $4,150 ($3,000 + 950 +200) and made an award to claimant in that amount.

CSB 2008-030 Theodore S. Geller, Worcester, MA (Disbarred)
After assenting to his immediate temporary suspension on November 7, 2007, Mr. Geller solicited and accepted a $400 retainer from claimant in cash installments on November 12, 19 and December 3, 2007 to represent her on a matter in District Court.  Claimant could find no evidence that Mr. Geller did anything on her behalf. Had Mr. Geller done something, he was ineligible to do so and was taking a fee under false pretenses. The Board found a defalcation awarded claimant $400.

CSB 2008-021 Theodore S. Geller, Worcester, MA (Disbarred)
In December 2006, claimant, a contractor and one-time client of Mr. Geller's,  gave him a $1,000 retainer to handle a "real estate problem." As late as October 2007, Mr. Geller told claimant that the court had the case under advisement.  In June 2007, claimant gave Mr. Geller a $250 retainer to handle a land boundary dispute.  Although Mr. Geller claimed to have filed suit, he never did anything. Claimant filed a complaint with the Worcester Police Department but it declined to take action explaining that it was a civil, not criminal, matter. The Board found a defalcation and awarded claimant $1,250.

CSB 2008-080 Theodore S. Geller, Worcester, MA (Disbarred)
Mr. Geller was disbarred on December 20, 2007. In January 2008, claimant's first mortgagee gave her notice that in May 2008 it would foreclose on her New Hampshire home. A friend referred claimant to Mr. Geller who met with claimant at her  home on January 24, 2008. Mr. Geller agreed to represent claimant for a fee of $400 "with an additional $1,000 due if Geller was successful in preventing foreclosure."  During February and March, Mr. Geller told claimant that he obtained an federal injunction stopping the foreclosure. When she checked with the federal court clerk in April, claimant discovered nothing had been done. The Board found a defalcation and awarded claimant $400.

CSB 2008-032 Theodore S. Geller, Worcester, MA (Disbarred)
Following claimant's 2005 conviction and sentencing, she signed a release permitting Mr. Geller (her defense trial counsel) to retrieve a $2,500 cash bail posted by her mother.  Although Mr. Geller had already received his legal fee for defending claimant, he kept the $2,500 for his own use.  Under pressure from Bar Counsel during the disciplinary investigation, Mr. Geller paid $1,700 to claimant in June 2007. In October 2007, Mr. Geller wrote an $800 personal check to claimant which was returned for insufficient funds. Those facts form one count of the Petition for Discipline to which Mr. Geller submitted his Resignation and Consent to Disbarment. The Board found a defalcation and awarded claimant $800.

CSB 2008-037 Theodore S. Geller, Worcester, MA (Disbarred)
Claimant's sister died in 2004 leaving a will naming claimant as executrix and residuary beneficiary.  Claimant was also the named beneficiary of her sister's IRA containing approximately $3,000. Her sister also named claimant beneficiary of her pension plan ($132,000) and 401(k) ($43,000).  Claimant contacted Mr. Geller who said that "as a friend of the family" he would arrange for the release of the funds from the IRA. Mr. Geller said he knew people at the bank who "could resolve things without [claimant] being present."  After not hearing from Mr. Geller, claimant contacted the bank and learned that Mr. Geller had already withdrawn the entire IRA of $3,135.20 signing as claimant's attorney in fact. When claimant confronted Mr. Geller, he paid her three installments (totaling $2,100) during August and October 2006, leaving an outstanding balance of $1,035.20.  The Board found a defalcation and awarded claimant $1,035.20.

CSB 2008-039 Theodore S. Geller, Worcester, MA (Disbarred)
In 1985, claimant gave up her biological daughter, Sally [not her real name], for adoption and never saw her again.  During summer 2007, claimant engaged Mr. Geller (who had represented claimant earlier) to find Sally. Shortly thereafter, Mr. Geller told claimant that his private investigator located Sally in Chicago and that Mr. Geller was going there to meet with her. A few days later, Mr. Geller told claimant that she was a grandmother because he had met with Sally and her young daughter.  He showed claimant photos of mother and child.  Claimant asked for documentation of Sally's identity and asked how much she owed Mr. Geller.  Mr. Geller failed to produce documentation but a young woman telephoned claimant and convinced claimant she was her daughter. On November 5, 2007, two days before his immediate temporary suspension, Mr. Geller accepted an $800 check from claimant for his "services," all of which were fabrications.  The Board found a defalcation and awarded claimant $800.

CSB 2008-043 Theodore S. Geller, Worcester, MA (Disbarred)
Claimants gave Mr. Geller a $600 retainer in May 2006 for a suit against a major oil company and an independent station operator for having contaminated their water supply. Mr. Geller negotiated the retainer check for cash. He then prepared a June 1, 2006 amateurish demand letter seeking $500,000.  Claimants "never saw or heard from him again."  The Board found a defalcation and awarded claimants $600.

CSB 2008-055 Theodore S. Geller, Worcester, MA (Disbarred)
In August 2007, claimant gave a $200 retainer to Mr. Geller to help her recover money damages for an eye injury. A member of the Worcester City Council referred her to him. [Mr. Geller had been a member of Worcester Election Commission since 2004.] When claimant did not hear from Mr. Geller for several weeks, she called his office regularly seeking an update. Her multiple voice mails failed to generate any response from Mr. Geller.  He assented to immediate temporary suspension on November 7, 2007, some two months after accepting the retainer.  The Board found a defalcation and awarded claimant $200.

CSB 2007-059 Richard W. Hynes, Brookline, MA (Disbarred)
Two months after his disbarment Mr. Hynes accepted $1,500 from claimant to file a consumer claim against a real estate broker who sold him a condiminium without diclosing that the trustess planned to make a substantial investment in the building for which claimant would be assessed. Four months after his disbarment, Mr. Hynes wrote a demand letter to the broker.  Nine months after his disbarment, he accepted an additional $500 in legal fees. When claimant finally learned that Mr. Hynes was disbarred he confronted him. Mr. Hynes claimed to have been only temporarily suspended but still permitted to practice law. Claimant requested his file but never received it.  The Board found a defalcation and awarded claimant $2,000.

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