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Case Abstracts for matters heard in June of 2008

CSB 2008-007 Gerard E. Battista, Norwell, MA (Disbarred)
In April 2005, claimant retained Mr. Battista to file a voluntary Chapter 7 bankruptcy petition and paid him a $1,000 fee. In June 2005, the trustee certified that there was no non-exempt property available for distribution to the creditors.  On August 15, 2005, the Court entered an order discharging claimant. Ten days later, on August 25, 2005, claimant, unrepresented by counsel, closed on the sale of her mobile home and received a net amount of $51,988.27.  She gave the settlement lawyer (who was not Mr. Battista) a handwritten list of checks to prepare from her sale proceeds to pay certain creditors and provide the balance to her.  That balance was a check for $30,561.52 payable to claimant.  She endorsed it over to Mr. Battista who was to pay several other creditors and then transfer the remainder to claimant in Florida.  In November 2005, Mr. Battista wrote to claimant explaining that her funds were currently unavailable but would be available in January 2006.  That date came and went with no hint of payment. In her Chapter 7 petition, claimant never listed her mobile home as an asset. According to the trustee, claimant testified under oath that she was a rental tenant in the mobile home. Because the $30,561.52 misappropriated by Mr. Battista was an asset of claimant's bankruptcy estate, any award to her would be an unjust windfall set in motion by her concealment from the trustee and her creditors of her largest asset. The Board found no reimbursable loss and made no award to claimant.

CSB 2006-060 Alan B. Mason, Worcester, MA (Disbarred)
Claimant and her former husband bought a home in September 2003 and gave a promissory note and mortgage to their purchase-money lender. Ultimately, Chase Home Finance acquired the note and mortgage. During 2004, claimant and her husband deeded the property to claimant alone as a step toward their impending divorce.  After the couple divorced in June 2005, claimant could no longer keep up the monthly mortgage payments and arranged to close on the sale of the marital home in July 2005. Because of her poor financial condition, claimant was unrepresented by counsel at the closing.  Buyer's lender delivered $198,624.14 to the escrow account of its counsel, Mr. Mason, who prepared a check to Chase in that amount to satisfy its lien.  Claimant deeded the property to the buyer and Chase released its lien.  Because Mr. Mason stopped payment on the check, Chase never received good funds making its discharge invalid.  Claimant, who was expecting no funds from the closing, learned for the first time that something was amiss when Chase sued her in April 2006.  Claimant immediately contacted Mr. Mason (just recently disbarred) who provided no satisfactory explanation.  She alone answered Chase's complaint and was voluntarily dismissed "without prejudice." Nevertheless, as of May 14, 2008, Chase was pursuing her for payment and billing her for hazard insurance procured by Chase for the property.  Claimant's January 2008 credit report shows the mortgage debt still unpaid. The Board found a defalcation by Mr. Mason in his fiduciary obligation toward claimant and made an award to her (payable to her and Chase jointly) in the amount of $198,624.14.

CSB 2008-036 Alan B. Mason, Worcester, MA (Disbarred)
On October 4, 1998, claimant was convicted of several rape-related felonies against JM.  During 2000, the Appeals Court affirmed his conviction and the SJC denied further appellate review. In June 1999, claimant's victim sued him for damages related to the rape and received a writ of attachment on certain real estate he owned. Thomas Beliveau, a Worcester lawyer in good standing, represented the victim in that action. She received final judgment for $150,000 in June 2004 after which the court appointed a receiver to collect rents on certain property owned by claimant. In August 2001, claimant filed suit against Mr. Beliveau and Mr. Mason in Worcester Superior Court alleging that they "attempted to trick, cajoled [sic], threaten the plaintiff [claimant's name] out of his properties." In March 2007, the trial court issued a memorandum of decision dismissing claimant's complaint for failure to state a claim on which relief may be granted.  Nowhere in his application did claimant even remotely allege that Mr. Mason was ever his lawyer or stood in a fiduciary relationship with respect to him.  The correspondence from Mr. Mason (submitted by claimant) shows, if anything, an adversarial and sometimes hostile relationship between Mr. Mason and claimant as he resisted Mr. Mason's efforts to buy claimant's property.  The correspondence further shows that claimant had two different lawyers representing him between January and June 2000 while Mr. Mason was attempting to buy claimant's property. The Board denied the claim because claimant failed to show any lawyer/client or fiduciary relationship between Mr. Mason and himself.

CSB 2007-037 Harrison A. Fitch, Boston, MA (Disbarred)
CSB 2008-017 Claude D. Grayer, Boston, MA (Suspended)
In April 2004, claimants (brother and sister) engaged Mr. Grayer to represent the brother in a civil rights action the brother had already filed (pro se) against a municipal police department.  The sister paid Mr. Grayer a $10,000 retainer and signed a fee agreement on behalf of her brother.  Mr. Grayer deposited the retainer into two different bank accounts (neither of which was an IOLTA) where the retainer was co-mingled with his personal funds. Without consulting his clients, Mr. Grayer handed the case over to Mr. Fitch (with whom he had no formal professional relationship) and paid Mr. Fitch "at least $3,500" from the retainer. In June, Mr. Grayer told claimants that Mr. Fitch would be handling the case but never explained that Mr. Fitch was not connected to Mr. Grayer's firm and never explained how the retainer was going to be handled. Mr. Fitch failed to respond to interrogatories leading to the entry of a default judgment against the claimant brother in November 2004.  After learning of the default and dismissal, the brother fired Messrs. Grayer and Fitch in January 2005.  Although the brother requested an accounting from both lawyers, neither provided one.  Ultimately, Mr. Grayer paid $5,000 to claimants while Mr. Fitch, through his counsel, acknowledged owing $3,500 to claimants. The Board found no defalcation with respect to Mr. Grayer because restitution had been made but found a defalcation with respect to Mr. Fitch and awarded claimants $3,500.

CSB 2008-056 Bruce L. Namenson, Quincy, MA (Suspended)
Claimant, age 95, was injured in a car accident on January 16, 2002. After negative experiences with four lawyers, claimant retained Mr. Namenson in 2004 and gave him his entire file.  Unbeknownst to claimant, on or about November 11, 2004, Mr. Namenson forged claimant's signature on a release and obtained claimant's settlement check in the amount of $20,000 one day after the release was submitted. Mr. Namenson forged claimant's endorsement on the check and failed to turn over any of the settlement proceeds.  Mr. Namenson never told claimant of the settlement and for seven and one-half years falsely represented that the matter was in arbitration.  The Board found a defalcation and awarded claimant the full $20,000 settlement.

CSB 2004-082 Richard H. Wynn, West Roxbury, MA (Disbarred)
After being injured in a November 2000 auto accident, claimants retained Mr. Wynn. They went to a chiropractor for treatment explaining that they had insurance and that Mr. Wynn was their lawyer. Mr. Wynn received two PIP checks from claimants' insurer totaling $4,881.87 and stole that amount.  The chiropractor sued Mr. Wynn and claimants resulting in a joint and several judgment against them for $4,917.34.  The chiropractor had the debt declared non-dischargeable in Mr. Wynn's bankruptcy but claimants are the only solvent parties to pay the judgment.  The Board found a defalcation and awarded claimants $4,917.34.

CSB 2006-078 Robert N. Wilson, Ayer, MA (Disbarred)
Claimant paid a $3,610 retainer to Mr. Wilson in February 2006 to modify a domestic relations order and to file an abuse of process action.  After collecting the retainer, Mr. Wilson ignored claimant's calls until a paralegal notified claimant that Mr. Wilson had been suspended in April 2007. Mr. Wilson's counsel responded that $900 was applied to claimant's outstanding balance on a criminal matter and $1,500 were spent on revised pleadings to reflect claimant's multiple changes of mind on strategy.  Finally, the parties agreed to use the MBA Fee Arbitration Board which awarded claimant $1,500 that Mr. Wilson paid. Claimant agreed that was a full and final settlement.  The Board found no defalcation because the parties settled the claim and the settlement was paid in full.

CSB 2005-048 John C. McBride, Marblehead, MA (Disbarred)
Claimant, a former firefighter, and his brother were indicted for arson in February 1985. After a May 1987 jury trial, claimant (represented by Mr. McBride) was convicted and his brother acquitted. Claimant received a 3-year suspended sentence with 3 months committed. The court denied Mr. McBride's motion for stay of execution and claimant served the 3 months. Claimant alleged that he paid Mr. McBride $4,000 for an appeal in 1987 that was never completed but presented no evidence to support the claim.  Mr. McBride submitted docket entries showing a motion to revise and revoke, and claim of appeal allowed. The record contains court orders to six different court reporters to prepare transcripts for appeal. At least one reporter died hindering preparation. McBride filed 1995 Motion for New Trial opposed by Commonwealth.   The Board found no dishonest conduct giving rise to a reimbursable loss and made no award to claimant.

CSB 2007-072 Gerard E. Battista, Norwell, MA (Disbarred)
Claimant paid Mr. Battista $4,875 in April 2003 to have her mother appointed executrix of her father's estate. Mr. Battista filed the petition and will, attended a hearing in May, and in July 2003, forwarded a copy of the complete file to claimant's mother.  When children of another marriage arranged to have all probate proceedings moved to Cape Verde (where claimant's father died and had been living for some 15 years with another woman), claimant's mother acquiesced and claimant sought an accounting and refund of the unused retainer. Mr. Battista ignored those requests and an associate of Mr. Battista's referred claimant to the Board which found a defalcation and awarded claimant $3,875.

 

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