Case Abstracts for matters heard in June of 2007
CSB-2006-085 Anthony Raoul Bott, Orleans, MA (Disbarred)
After being injured in an auto collision in August 2002, claimant retained Mr. Bott to recover money damages for her injuries. Without claimant's knowledge or consent, Mr. Bott expeditiously settled her claim with the insurer and received an August 15, 2003 check payable to claimant and to him for $49,600. Mr. Bott forged claimant's endorsement to the check, collected the funds and used them entirely for his benefit. Meanwhile, Mr. Bott lied to claimant about the status of her claim preventing her from learning of his theft until the spring of 2005. Claimant cooperated with the Attorney General's office in the prosecution of Mr. Bott who pleaded guilty to felony larceny from claimant and for whose benefit the court entered a restitution order. Claimant retained substitute counsel who filed suit against the insured just before the expiration of the statute of limitations. Claimant's counsel also sought (unsuccessfully) to recover from the bank that paid the check on the forged endorsement. Claimant's counsel reached an agreement with the insurer that it would submit claimant's suit to mediation provided the insurer would be responsible only for that portion of the mediator's award that exceeded $49,600. The Board found a defalcation by Mr. Bott and awarded claimant $32,933, representing the $50,000 settlement minus the one-third contingent fee ($16,667) minus a $400 medical payment made on claimant's behalf.
CSB-2007-011 Dennis F. Jackson, Lynn, MA (Suspended)
Beginning in 1988 claimant paid Mr. Jackson a total of $134,500 to defend his son on 15 counts of second degree murder and one count of arson. After three weeks of jury trial, the court declared a mistrial because of prosecutorial misconduct. The re-trial lasted two additional weeks and resulted in convictions on all charges. The Court sentenced claimant's son to life on the first count of second degree murder; 15 to 20 years (concurrent) on the arson and then 14 concurrent life sentences to be served from and after the life sentence on the first count of murder. Shortly after the end of the second trial, Mr. Jackson pleaded guilty to driving under the influence of cocaine and driving to endanger. Claimant also presented an affidavit from his former daughter-in-law (the former wife of claimant's convicted son) that Mr. Jackson engaged in consensual sexual conduct with her during the trials. The trial judge presented with this evidence during a hearing on a motion for a new trial, found the testimony to be "vague, confusing and contradictory" and further found that the former wife "'had a strong interest in testifying in a manner favorable to the defendant [claimant's son] because she wanted to curry favor with the defendant's parents, who had custody of her daughter." Claimant believes that substantial amounts of the legal fees he paid to Mr. Jackson went to support his drug habit and sought partial reimbursement of the fees paid. The Board found no evidence of a defalcation and made no award to claimant.
CSB 2006-079 Richard G. Birchall, Orleans, MA (Disbarred)
During the 1980's, claimant purchased several annuities with pre-tax funds diverted from his adult nightclub business. After pleading guilty to multiple state tax charges in 1988 and receiving a 10-month sentence, claimant and his corporation faced tax bills of $267,021 and $166,014, respectively. Claimant gave Mr. Birchall a limited power of attorney to cash surrender twelve annuities (or negotiate the release of federal liens on them) producing $2,200,467 in cash of which $531,510 went to the IRS. Mr. Birchall deposited the balance ($1,668,957) into his Connecticut IOLTA in May 1990, when he was a member of the New Jersey bar but was not yet admitted to the Massachusetts bar. Following consultations with claimant, who was concerned about additional amounts owed to the IRS and DOR, Mr. Birchall transferred the funds to Barclays Bank on the island of Jersey, Channel Islands and contends that he had claimant sign the signature cards for the account. Claimant contends that Mr. Birchall deprived him of those funds. From 1990 to 1992, Mr. Birchall represented claimant on federal criminal tax charges that ended in claimant's guilty plea to conspiracy to defraud the U. S. government. Claimant failed to appear for sentencing and was a fugitive for approximately twelve years until he was arrested in September 2004 in a Memphis hotel with more than $700,000 in cash. While claimant was a fugitive, the Massachusetts Department of Revenue wrote off approximately $710,000 in taxes, penalties and interest owed by claimant because the statute of limitations on recovering that amount had expired. In March 2006, claimant was sentenced to 30 months in prison and now seeks reimbursement for the approximate $1.6 million he contends Mr. Birchall misappropriated. The Board found that claimant failed to show that Mr. Birchall was a member of the Massachusetts bar when he took custody of claimant's funds and failed to present evidence showing that Mr. Birchall misappropriated any of funds in his possession. The Board was also persuaded that any award to claimant would represent unjust enrichment based on the following arithmetic. The $700,000 in claimant's custody when he was arrested when added to his assumed living expenses while a fugitive ($300,000) equals approximately $1,000,000. Add to that the $700,000 written off by the DOR when claimant was a fugitive, and the total comes to $1.7 million, an amount greater than the alleged defalcation by Mr. Birchall. The Board made no award.
CSB -2006-042 Malcolm Joel Barach, Boston, MA (Suspended)
Claimants are a former husband ("claimant FH") and wife ("claimant FW"). Between October 1992 and January 1994 and between May 1994 and March 1996 Mr. Barach represented the claimant FH on serious criminal charges for a total of 120.25 hours. Claimants paid Mr. Barach $16,250 in 124 small checks from their joint account. The Hearing Committee and the Board of Bar Overseers found that Mr. Barach's agreed-upon fee was $100 per hour for the work he performed. Mr. Barach later changed that figure to $150 per hour, a claim the Hearing Committee found to be "not credible" and "'knowingly' false" Mr. Barach "cashed all of the [claimants'] checks" and did not place them "in a client funds account." In addition, Mr. Barach "negligently commingled these funds with his own funds and used the funds for his own personal and business purposes." When claimant FH terminated Mr. Barach's services in March 1996, Mr. Barach received $4,225 more in fee payments than he had earned. Mr. Barach has refused to refund that amount to claimants for more than ten years. Claimants attempted to have Mr. Barach participate in arbitration before the Legal Fee Arbitration Board of the Massachusetts Bar Association failed because Mr. Barach refused. Claimants sued Mr. Barach in Small Claims Court ("the only affordable avenue") where the jurisdictional cap would have limited their recovery, but had to dismiss the suit because claimant FW could not take time off from work to appear in court. The Board found a defalcation of $4,225 and, in the exercise of its discretion concerning the nature of criminal charges, made an award in that amount payable solely to the claimant FW.
CSB 2007-012 John C. McBride, Marblehead, MA (Disbarred)
On August 24, 2004 claimant was terminated from his job for allegedly having a sexual tryst with a man in a wooded area near the school where claimant worked as a janitor. Two days later claimant gave Mr. McBride a $5,000 retainer after Mr. McBride assured him that he could handle his type of case. Mr. McBride did not disclose that he might not be able to complete the representation because eight months earlier a Hearing Committee recommended that Mr. McBride be suspended for three years for his misconduct in other cases. Four days later (August 30, 2004) Mr. McBride contacted claimant explaining "he would get my job back and make me money as well." A request for an additional $10,000 in retainer accompanied that rosy prediction. When claimant delivered the $10,000 check, Mr. McBride assured him that the $15,000 "would cover the entire cost of my legal fees to settle the case." On October 13, 2004, Mr. McBride filed suit on behalf of claimant in Essex Superior Court naming the superintendent of the North Andover Schools as defendant. [Successor counsel was forced to dismiss this suit because Mr. McBride failed to begin (much less exhaust) administrative remedies with the Civil Service Commission and the Massachusetts Commission Against Discrimination.] On November 11, 2004 the Board of Bar Overseers recommended that Mr. McBride be disbarred. After that, claimant reported "I was unable to contact him and he would never return my calls and when we did speak, it was very brief mostly to say I'll call you back." Claimant learned of Mr. McBride's disbarment nine months later from an August 2005 newspaper article. When claimant confronted Mr. McBride with that news, Mr. McBride advised him "not to believe everything that is written." To no avail, claimant wrote to Mr. McBride seeking the return of his $15,000 retainer. Claimant then wrote to the Office of Bar Counsel seeking help. In his October 2005 response to Bar Counsel, Mr. McBride confirmed receiving a retainer and not having exhausted it. In early 2006 claimant retained substitute counsel to press his claim to be reinstated as a school janitor and to recover his retainer from Mr. McBride. Successor counsel wrote to Mr. McBride on January 27, 2006, February 7, and May 5 seeking a copy of claimant's file, Mr. McBride's notice to withdraw, and the return of the retainer. Successor counsel ultimately received the file and the notice to withdraw but not the retainer despite the many assurances that "the check is in the mail." The Board found a defalcation in the amount of $15,000 because Mr. McBride obtained the retainer under false pretenses and made an award to claimant in that amount.
CSB 2006-073 Daniel R. Kirkpatrick, Barre, MA (Disbarred)
Mr. Kirkpatrick served as counsel to claimant during a divorce. When claimant and his first wife divorced, they agreed that 30% of his share of the equity of the marital home, $11,304.76, would go into escrow for use by Mr. Kirkpatrick only if necessary to make child support payments that claimant might fail to make himself. Between 2001 and 2004 Mr. Kirkpatrick made only two payments ($1,949.65 and $510) from the escrowed funds. Claimant has remarried, the children of the first marriage are grown and no longer eligible for the support payments and he and his wife have written letters to Mr. Kirkpatrick seeking an accounting. Those letters have gone unanswered. The Board found a defalcation of $8,845.11 [$11,304.76 – ($1,949.65 + $510)] and made an award to claimant in that amount.
CSB 2006-074 Timothy J. Shea, II, Wellesley, MA (Disbarred)
In April 2004, claimants retained Mr. Shea to research and prepare a provisional patent application and draft a confidentiality agreement. Claimants and Mr. Shea signed a retainer agreement providing for an hourly fee of $300, a retainer of $10,000 (paid in May 2004) to be held in the respondent's IOLTA account, with monthly fees and expenses to be invoiced and deducted from the retainer. By June 1, 2004, Mr. Shea's legal fees totaled not more than $5,886. Between May 10, 2004, and June 2, 2004, Mr. Shea intentionally withdrew $8,479 of the claimants' retainer, $2,593 more than he had earned, and used the funds for his own business and personal expenses. In June 2004, without having earned it, Mr. Shea intentionally withdrew an additional $1,480 from the retainer. By the end of June, Mr. Shea had intentionally converted at least $4,073 of the claimants' retainer. Although claimants asked for a status report on Mr. Shea's work for them on several occasions in June and July 2004, Mr. Shea ignored those requests. On July 20, 2004, claimants discharged Mr. Shea requested a full refund of the retainer. Mr. Shea also ignored that request. Claimants then retained new counsel to assist him in securing the file, the balance due from the retainer, and a final bill and accounting. New counsel wrote to Mr. Shea on August 3, 2004, explaining that the claimants had discharged him and demanding a final accounting, the return of the client's file, and the return of the unearned portion of the retainer. Although Mr. Shea received the letter he failed to reply to it or to take any of the other requested actions. The Board found a defalcation of $10,000 and made an award to claimants in that amount.
CSB 2006-030 Paul Joseph Healy, Quincy, MA (Disbarred)
Completely unaware that Mr. Healy was already suspended from the practice of law, claimant retained him (1) to probate her mother's will, and, (2) to draft a will, a durable power of attorney, and a health care proxy for her. Mr. Healy engaged another lawyer to file the petition for the probate of claimant's mother's will without ever explaining to claimant the reason why another lawyer was required. Claimant never received from either Mr. Healy or his subcontractor any of the very few court papers filed. Mr. Healy never drafted any of the documents claimant wanted for herself, so she was forced to retain different counsel who promptly drafted the three documents. Despite claimant's payment to him of $8,630, Mr. Healy did essentially none of the work for which he was engaged. He did properly spend $725 for filing fees. The Board found a defalcation in the amount of $7,905 ($8,630 - $725) and made an award to claimant in that amount.
CSB 2007-005 Vincent G. Campanella, Woburn, MA (Disbarred)
In October 2005, claimant retained Mr. Campanella to represent her in a custody/visitation matter regarding her son. Between September 2, 2005 and December 16, 2005, claimant paid Mr. Campanella $9,700 during which time he did minimal work that included a December 2005 court appearance during which Mr. Campanella told the judge exactly the opposite of what claimant wanted. Claimant wanted visitation rights, but Mr. Campanella told the judge that claimant did not want visitation rights. This error (along with other factors) resulted in claimant, through successor counsel, still trying to obtain visitation rights. After crediting Mr. Campanella with the sums that he returned to claimant, the Board found a defalcation of $6,400 and made an award to her in that amount.
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