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Case Abstracts for matters heard in July of 2009

CSB 2009-036 John Silvia, Jr., Fall River, MA (Disbarred)
At some unspecified time not before 1990 claimant invested in a venture promoted by Mr. Silvia. The investments were in the nature of loans "to the Silvia investment scheme" but claimant never produced the loan documentation. Claimant received as collateral some 425,000 shares of restricted stock in a public corporation issued to an entity controlled by Mr. Silvia.  The loan apparently went into default and in 1995 claimant’s counsel prepared a one-page escrow agreement dated July 3, 1995 under which Mr. Silvia as an escrow agent was to tender the shares to the transfer agent with instructions to perform the 5 for 1 reverse split and to deliver 85,000 "free trading" shares to claimant on or before August 4, 1995.  When that never happened, claimant sued Mr. Silvia and reached an agreement for judgment for a compromised amount ($165,000).  Mr. Silvia never paid any of the judgment and his entity (in whose name the stock was issued) filed for bankruptcy in April 1997.  Claimant presented a bankruptcy claim for $405,000 (the approximate market value of the stock on August 3, 1995) and received $115,193 in January 1999.  According to Mr. Silvia, the bankruptcy trustee required that he tender all of the shares held in the name of the bankrupt entity including those formerly held by claimant as collateral.  The Board found that there was no lawyer-client relationship between Mr. Silvia and claimant and found no reimbursable loss in this investment transaction.

CSB-2009-041 Stafford Sheehan, Fall River, MA (Disbarred)
In May 1990, Mr. Sheehan became the court-appointed guardian of the person and estate of a then 26-year-old disabled woman, whose claimant-parents became co-guardians of their daughter’s person and co-monitors of the administration of antipsychotic medications.  Approximately one year after Mr. Sheehan was removed by the court on June 7, 2002, current counsel became the disabled woman’s guardian ad litem and reviewed all accounts previously submitted by Mr. Sheehan.  That review showed missing funds of $62,004.34 of which $37,857.37 (61.056%;) was due to defalcation and $24,146.97 (38.944%) was due to negligence and incompetence.  Current counsel and GAL recovered a total of $30,706.14 ($10,091.02 from Mr. Sheehan’s bankruptcy and $20,615.12 directly from Mr. Sheehan) for the disabled woman’s estate.  The Board allocated 61.056% of that recovery ($18,747.94) to reduce the defalcation shortfall from $37,857.37 to $19,109.37 and made an award to claimants of $19,109.37.

CSB-2009-041 John Roberts, Jr. Hyannis, MA (Disbarred)
A woman created a family trust in 1992 and was its trustee until her death on February 1, 2007.  On that date, Mr. Roberts became successor trustee and, almost immediately, between March and August 2007, moved $137,900, in the form of 27 checks payable to himself, from the trust to his IOLTA account.  From there, he used the funds for his own personal or business purposes.  Those facts formed the basis of Mr. Roberts’ guilty plea to felony theft, a judgment and execution against him in a civil suit, and his disbarment.  The Board found a defalcation and made an award of $137,900 to the claimant who is the successor trustee. 

CSB-2008-095 Bruce L. Namenson, Quincy, MA (Disbarred)
Claimant, a 21-year-old college student for whom English is not her first language, suffered fractured vertebrae and other injuries in an October 30, 2005 auto collision in which one person died.  Claimant, a passenger, had back surgery and was hospitalized for six days.  Without invitation, Mr. Namenson visited claimant to promote his services while she was hospitalized.  Two weeks later claimant engaged Mr. Namenson to represent her for a 1/3 contingent fee.  Without claimant’s knowledge or consent, Mr. Namenson settled the claim in July and August 2006 for a total of $99,000 (approximately the policy limits) from two insurers and never paid any of the settlement funds to claimant.  The facts of this claim formed a separate count of bar counsel’s Statement of Charges the truth of which Mr. Namenson admitted in his affidavit of resignation.  The Board found a defalcation made an award of $66,000. 

CSB-2008-046 Karen M. Harbeck, Malden, MA (Disbarred)
In October 2002, claimant paid Ms. Harbeck a $4,000 retainer to pursue wrongful termination and worker's compensation claims against a local school department.  Although the worker's compensation matter was successful, MCAD and the EEOC dismissed the claims as untimely filed on September 19, 2003 and May 11, 2004, respectively.  The attempt to file a municipal tort claim was also rejected in May 2005 as untimely. Claimant reported Ms. Harbeck's conduct to the BBO which resulted in a public reprimand in November 2006.  Ms. Harbeck admitted her failure to the claimants and encouraged them to contact her malpractice carrier to file a claim.  Ms. Harbeck's disbarment in 2008 was for misconduct wholly unrelated to this claim.  In denying the claim, the Board found the conduct to be negligence or malpractice but not a defalcation. 

CSB-2008-066 David Ryan O'Desky, Springfield, MA (Disbarred)
During September 2007, claimant gave two checks to Mr. O'Desky totaling $1,250 for legal and filing fees to sue claimant's employer.  Mr. O'Desky immediately negotiated the checks for cash and then effectively disappeared.  A possible explanation is that bar counsel filed its first petition for discipline during September 2007 to which Mr. O'Desky filed an answer during October.  In December claimant filed a small claims action in Springfield District Court and received a February 2008 default judgment against Mr. O'Desky on which execution issued on April 1, 2008 in the amount of $1,339.13.  Mr. O'Desky never returned the retainer or accounted for it to claimant.  The judgment remains unsatisfied.  The Board found a defalcation and made an award of $1,250.

CSB-2008-072 David Ryan O'Desky, Springfield, MA (Disbarred)
Between November 2006 and July 2007, claimant gave four checks to Mr. O'Desky totaling $3,395 ostensibly for legal fees and expenses related to a DOR claim for child support payments.  Mr. O'Desky immediately negotiated each of the checks for cash and then proceeded to lie about scheduled (and cancelled) hearings, conversations with and demands from the child's mother (then living in Missouri) and the work he was doing to allow claimant to relinquish his parental rights. In fact, he had performed no meaningful legal service before claimant discharged him in August 2008.  These facts formed a separate count in bar counsel's petition for discipline which Mr. O'Desky admitted could be proved by a preponderance of the evidence in his affidavit of resignation of May 15, 2008.  The Board found a defalcation and made an award of $3,395.

CSB-2009-053 Theodore Scott Geller, Worcester, MA (Disbarred)
Claimant paid Mr. Geller a $500 retainer on September 25, 2006 to have herself appointed guardian of her husband of 43 years and a resident of a geri-psychiatric nursing home since July 2005.  On September 26, 2006, Mr. Geller negotiated the check for cash and did nothing to have claimant appointed guardian.  The Board found a defalcation and made an award of $500.

CSB-2009-054 Theodore Scott Geller, Worcester, MA (Disbarred)
The three claimants are mother, her adult daughter, and a tenant in mother’s home.  In August 2006, the daughter engaged Mr. Geller to attempt to seek redress from another lawyer who charged the daughter $40,000 for a divorce.  Because the daughter was impoverished, the mother paid $3,000 and the tenant paid $1,000 of Mr. Geller’s $4,000 retainer.  The proceeds of the four $1,000 checks Mr. Geller received during August and September 2006 were immediately negotiated for cash.  Although Mr. Geller prepared a draft demand letter, a complaint and a "Client Case Schedule" showing when he would take certain actions, he did nothing more on the daughter’s behalf before he was disbarred.  Mr. Geller's "Client Agreement" dishonestly provided for the refund of all monies if reimbursement is not received.  The Board found a defalcation and made an award of $3,000 to the mother and $1,000 to the tenant.

CSB-2008-093 Bruce L. Namenson, Quincy, MA (Disbarred)
On June 26, 2006, claimant suffered injuries in an auto collision and engaged Mr. Namenson to recover money damages for him.  Without claimant's knowledge or consent, Mr. Namenson signed claimant's name to a release settling the matter for $4,250 in December 2006.  In November 2007, a grand jury indicted Mr. Namenson on 22 counts of motor vehicle insurance fraud and 72 other related charges.  During January 2008 (when he was temporarily suspended), Mr. Namenson showed claimant a letter to an insurance company demanding $45,000 in settlement.  After that, nothing.  The Board found a defalcation and made an award of $4,250.

CSB-2009-027 J. Michael Freedberg, Salem, MA (Disbarred)
Affidavits from a broker and claimant's "advisor" about a closing on the sale of property for which claimant was a co-buyer, showed that Mr. Freedberg held $7,000 in escrow.  They also established that if the sale did not close due to co-buyer's inability to obtain financing, 1/2 of escrow would go to claimant.  Mr. Freedberg confirmed in two letters to the Board that claimant was indeed owed $3,500 because the sale did not occur and described his detailed plans to repay claimant.  In February 2009, Mr. Freedberg stated that he was unable to pay because his employment opportunities had been less successful than anticipated.   The Board found a defalcation and awarded claimant $3,500.

CSB-2009-016 Steven L. Ostrovitz, Framingham, MA (Suspended)
In February 2007, claimant paid Mr. Ostrovitz $1,800 to file a complaint against a fellow physician with whom claimant had worked for about three years and with whom claimant had a dispute over the division of fees from their practice.  Claimant's e-mails to Mr. Ostrovitz during an eight-month period demonstrated his neglect of the suit and caused claimant to dismiss Mr. Ostrovitz by letter dated 12/6/07.  Mr. Ostrovitz never communicated anything of substance to claimant and did nothing to advance claimant’s cause.  The Board found a defalcation and awarded claimant $1,800.

CSB-2008-103 Michael L. Howard, Burlington, MA (Disciplinary Resignation) 
Facing home foreclosure in August 2005, claimants paid Mr. Howard a flat fee of $2,200 to file a Ch. 13 bankruptcy.  He filed a petition on August 8 with schedule and a plan due on August 24.  Mr. Howard then filed three motions to extend the time to file alleging falsely that he had been unable to meet with claimants and finally that claimants were unable to produce the necessary documents.  Claimants had repeatedly faxed the required documents to Mr. Howard who did nothing with them.  Claimants' petition was dismissed December 19 and in January 2006 Mr. Howard falsely assured claimants he would remedy the situation.  Instead, the foreclosure took place in March and claimants lost their home.  Mr. Howard returned $1,500 of the fee, promised the balance, but never paid it.  The Board found a defalcation and awarded claimants $700.

CSB-2008-089 David Ryan O'Desky, Springfield, MA (Disbarred)
In August 2006, claimant (a mother of four) retained Mr. O’Desky to obtain a divorce from her abusive husband.  At that time Mr. O’Desky was eighteen months into a disciplinary proceeding and concealed that conflict from claimant.  For the next 22 months Mr. O’Desky demanded additional amounts for fees, service of process, transcripts, a private investigator, and even a guard dog.  Not only did Mr. O’Desky negotiate claimant’s $2,000 retainer check for cash on the very day he received it but also during the following 20+ months he immediately negotiated 13 more of claimant’s checks for cash; had claimant make three checks payable to herself, negotiate them and give the cash to him; and he endorsed one of claimant’s checks over to his woman-friend.  Claimant used her own funds and $13,000 advanced by a friend to make payments to Mr. O’Desky totaling more than $35,000.  When Mr. O’Desky continued to avoid giving claimant her divorce papers, she went to the courthouse to get them for herself.  There, with the aid of two helpful court clerks, she discovered that Mr. O’Desky never filed a complaint for her divorce, never performed any other meaningful legal service for her and was, in fact, disbarred.  The Board found a defalcation and awarded claimant $26,753.00 and her co-claimant friend $13,000.

CSB-2009-012 Robert N. Wilson, Jr., Ayer, MA (Disbarred)
Mr. Wilson served as the settlement agent when, in March 2006, claimant, a 66-year-old widow, refinanced her home.  Mr. Wilson received $184,256.52 from claimant’s new lender to pay off the existing mortgage ($159,807.63), pay closing costs of $5,526.98 (including $675 in legal fees to Mr. Wilson) and provide $18,921.91 to claimant.  Mr. Wilson made the other disbursements but never paid off the existing mortgage, using those funds instead for his own benefit.  Claimant’s re-financing lender promptly transferred the note to a third-party loan services company that foreclosed on the property.  Claimant lost her equity ($72,000) and incurred other consequential losses all totaling her $164,500 claim before the Board.  Because title insurance paid off the first mortgage, the Board found no unreimbursed defalcation and made no award.

CSB-2008-104 Bruce L. Namenson, Quincy, MA (Disbarred)
After she was injured in a January 2006 auto collision, claimant retained Mr. Namenson on a contingent fee basis. In March 2007, claimant signed a release settling her claim for $16,400.  Later in March Mr. Namenson received the settlement check for $16,400 and negotiated it.  Claimant denied she endorsed the check.  Mr. Namenson used all of the settlement proceeds for his own benefit and never delivered any portion of the $16,400 to claimant.  This claim formed the basis for one of the counts of bar counsel’s Statement of Charges in response to which Mr. Namenson submitted his Affidavit of Resignation acknowledging that "the material facts … can be established by a preponderance of the evidence…" The Board found a defalcation and awarded claimant $10,933.34.

CSB-2009-011 Irwin Kwiat, Worcester, MA (Disbarred)
In June 2006, claimant assembled $21,040 in cash to post bail for her companion.  At the jail, the DEA seized the cash when dogs supposedly sniffed controlled substances on the bills.  Mr. Kwiat, already retained by claimant to defend her companion, successfully challenged the seizure (for an additional fee) and the DEA issued a check to claimant for $21,040.00.  Mr. Kwiat drove claimant to his bank where she endorsed the check and Mr. Kwiat deposited it to his IOLTA account.  He said he would post bail for claimant’s companion just as soon as the check cleared.  This was the factual foundation for a count in the Petition for Discipline that resulted in Mr. Kwiat’s disbarment.  He never posted the bail as promised, never accounted for the funds and never returned them to claimant.  Instead, he used the funds for his own purposes.  The Board found a defalcation and awarded claimant $21,040.

CSB-2008-071 David Ryan O'Desky, Springfield, MA (Disbarred)
In January 2007, a very young mother retained Mr. O’Desky to represent her in a care and protection proceeding for her daughter.  During the next ten months Mr. O’Desky requested and received a total of $5,524 from the young mother, her grandmother and her aunt supposedly to retain his services, to file a divorce action for the young mother, to have a psychological exam for her, to file a deposition, and to file criminal charges against her husband.  Instead of performing any meaningful legal services, Mr. O’Desky would call the claimants immediately before a scheduled court appearance and say that it was cancelled or that he could handle it without their presence.  He performed no legal services, never accounted for the funds he received and never returned them.  The Board found a defalcation and made an award of $5,524.00 divided among the young mother ($2,224.00), the grandmother ($2,900.00) and the aunt ($400).

CSB-2009-008 Lewdorsey Williams, Malden, MA  (Disbarred)
Following the March 29, 2006 closing on a sale of property owned jointly by claimants and three others, Mr. Williams held $54,500 in escrow (withheld solely from claimants’ share the net sale proceeds) pending resolution of a lawsuit between the buyers and sellers. He made one legitimate payment of $2,400 from the escrow funds leaving a balance of $52,100 in escrow.  In April 2007, the parties resolved their dispute and agreed that $15,000 would go to the buyers and the balance ($37,100) would go the claimants.  On June 25, 2007, Mr. Williams forwarded a $15,000 check to the buyers’ attorney.  On the same day, he withdrew the remaining escrowed funds and used them for his own personal or business purposes.  The Board found a defalcation and awarded claimants $37,100.

CSB-2008-078 Robert Michael Fuster, Pittsfield, MA (Suspended)
In June 2005, claimant paid Mr. Fuster $5,000 to begin collection efforts for medical supplies that claimant sold to a commercial buyer.  In January 2008, claimant paid Mr. Fuster $1,000 more, but it was only a partial payment toward a then-outstanding balance of $10,456.69.  Claimant also sought to recover $10,000 that he paid successor counsel following Mr. Fuster’s suspension from practice.  Mr. Fuster explained matters differently by describing complex Medicaid reimbursement issues and irregularities in claimant’s business practices, his submission of regular billing statements to claimant, and his rebuttal of claimant’s charges.  The Board found no defalcation or reimbursable loss and denied the claim.

CSB-2009-090 Alfred E. Nugent, Boston, MA (Deceased)
Claimant retained Mr. Nugent to represent him in a district court criminal matter and paid him $2,500 on March 13, 2008.  Mr. Nugent appeared at claimant's pre-trial hearing on April 7, 2008.  Mr. Nugent requested (and claimant paid) another $2,500 before claimant’s next court appearance scheduled for June 2, 2008.  Mr. Nugent never appeared at the June 2nd hearing because he was hospitalized.  He died on June 7th.  Claimant sought to recover the second $2,500 paid to Mr. Nugent.  For a loss to be reimbursable it must have been caused by the lawyer’s dishonest conduct.  Claimant introduced no evidence of Mr. Nugent’s dishonest conduct or facts from which the Board could infer dishonest conduct.  The Board found no reimbursable loss and denied the claim.

CSB 2008-016 Adrian A. Gaucher, Jr., Southbridge, MA (Disbarred)
On July 17, 2008, following a hearing, the Board made a provisional award of $243,498.18 to claimant "subject to receiving evidence of the finality of Justice Meagher’s decision" in Worcester Probate Court.  The finality of Justice Meagher’s decision came into question because it was based on an evidentiary hearing conducted on the morning of November 26, 2007 when Mr. Gaucher filed a voluntary chapter 7 petition in U.S. Bankruptcy Court in Worcester.  Mr. Gaucher argued that the Justice Meagher’s hearing was a nullity since it violated an automatic stay that issued with his filing.  The defect with that assertion is that Mr. Gaucher made no effort whatsoever to notify Justice Meagher or opposing counsel of his chapter 7 filing.  To remove the cloud, claimant and other interested parties on February 11, 2008 filed a motion in Mr. Gaucher’s chapter 7 proceeding for retroactive relief from the automatic stay.  Judge Rosenthal granted that motion on March 10, 2008.  Mr. Gaucher appealed that decision to the U.S. District Court where it was dismissed and then to the U.S. Court of Appeals for the First Circuit where Mr. Gaucher failed to file a brief resulting in the dismissal of his appeal.  Judge Rosenthal’s March 10, 2008 order granting relief from the stay is now final as is Justice Meagher’s November 2007 ruling.  The Board made its provisional award final and awarded $243,498.18 to claimant.

CSB-2007-057 Philip Joseph LaMonica, Lynn, MA (Suspended–Reinstated)
Claimant sought to recover $17,500 he alleged his parents paid as a legal fee to Mr. LaMonica in 1987 to defend him on two serious felonies.  Mr. LaMonica, who was temporarily suspended from practice in December 1988, acknowledged receiving $2,500 directly from claimant and contended that his pre-suspension representation of claimant more than consumed the $2,500.  Claimant learned of Mr. LaMonica’s suspension in June 1989 when the trial court appointed substitute counsel to defend him.  A jury convicted claimant in November 1990 and he has been incarcerated since.  Mr. LaMonica was indefinitely suspended in October 1990 and remained in the jurisdiction to this day.  He was reinstated in March 2001 and is now practicing in good standing.  Claimant presented no evidence to show that his parents paid Mr. LaMonica $17,500.  Testimonial confirmation is impossible because claimant’s father is dead and his mother lives in an "elderly services" home and "her memory is not that good."  In denying the claim, the Board found that claimant failed to present any documentary evidence to support his claim and that he was culpable for the unreasonably long delay in presenting his claim when he was under no disability.

CSB-2008-082 David Ryan O'Desky, Springfield, MA (Disbarred)
Claimant, a licensed mental health counselor, was referred to Mr. O’Desky in late 2007 after being accused of having had a sexual relationship with one of her students at the school where she had worked. Further, an unknown party filed a report accusing claimant of abusing her son.  During January 2008, claimant and her mother made multiple payments to Mr. O’Desky as he manufactured reasons why various amounts were needed.  Some examples were: $750 for a retainer; $1,500 for bail because Mr. O’Desky told claimant she would be arrested; $250 to file a defamation suit against claimant’s accuser; additional payments for mediation services and to file an answer to a complaint; then more money to make claimant’s mother the legal guardian of claimant’s son after the abuse report.  Claimant and her mother transferred $5,991 to Mr. O’Desky during January 2008.  When claimant retained Mr. O’Desky he dishonestly failed to disclose to her that there was an almost absolute certainty that he would not be able to complete the engagement because: 1) his imminent (February 14, 2008) indictment and prosecution for two felonies in Hampden Superior Court; and, 2) the May 15, 2008 submission of his affidavit of resignation from the bar.  In dealing with claimants, he was merely gathering money to pay his own legal fees and personal expenses.  He performed no meaningful legal services whatsoever for claimant.  He made matters worse by giving claimant checks for $700 and $1,900 and another representing the projected recovery of $250,000 in the defamation suit that Mr. O’Desky never filed, because all three checks were drawn on a closed account.  The Board found a defalcation and awarded claimant and her mother a total of $5,991.

CSB-2008-015 Donald H. Jackson, Norwell, MA (Disbarred)
Claimant is the administrator of the estate of a woman who hired Mr. Jackson in the fall 2001 to take over the administration of her inter vivos trust and other assets.  Mr. Jackson amended the trust declaration to make himself successor trustee and prepared a codicil to the woman’s will naming him executor of her estate and her attorney in fact.  After the woman’s death in January 2002, Mr. Jackson petitioned to probate a copy of her will and to appoint him executor because the original will could not be found.  Mr. Jackson never pursued the probate.  Instead, between 2002 and 2004, Mr. Jackson misappropriated at least $300,000 from the trust and $15,000 from the estate.  He also paid himself more than $44,000 in legal fees.  Claimant was appointed administrator of the Estate and sought to collect the misappropriated $15,000 to distribute it to the beneficiaries, and finally close the estate.  The Board found a defalcation and awarded $15,000. [NOTE: The claim dealing with the misappropriation from the trust was heard by the Board and is under advisement while the court-appointed successor trustee exhausts civil remedies against Mr. Jackson.]

CSB-2009-068 Berton D. Reed, Melrose, MA (Disbarred)
Claimant, an 82-year-old veteran, retained Mr. Reed and orally agreed to pay him a 1/3 contingent fee plus expenses after a swinging door accidentally knocked him down at the front entrance of fraternal club in March 2006.  He received hospital treatment for his injured hand and wrist.  After Mr. Reed negotiated a settlement of $17,500 with the insurer, he told claimant that the insurer offered to settle for $6,000.  Mr. Reed signed claimant’s name to a release without claimant’s knowledge or consent and did the same with two settlement checks ($5,000 and $12,500) in October 2006 and March 2007.  He sent checks to claimant for $1,500 and $2,500 in December 2007 and July 2008.  The Board found a defalcation and awarded claimant $7,666.67 ($17,500 × 0.66667 = $11,667.67 - $4,000.00).
 

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