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Case Abstracts for matters heard in May of 2008

CSB 2007-064 Wilfred J. Daley, III, Andover, MA (Disbarred)
Claimant's husband died in April 2002 after which she moved to Florida to live with her sister.  While there, she decided to sell the New Hampshire home where she and her husband had lived before he died.  She engaged Mr. Daley (her brother) to handle the transaction, paid him a $400 fee and gave him power of attorney. The sale closed on December 31, 2002 after which Mr. Daley deposited $78,135.46 into claimant's bank account. That deposit left a shortfall of $83,925.37 from the net proceeds of $162,060.83 due claimant.  As she attempted to follow-up with Mr. Daley from Florida, she experienced both physical and emotional problems and accumulated substantial credit card debt. She filed for bankruptcy (Chapter 7) in Florida  in October 2005 and received her discharge in February 2006.  Claimant (who did not complete high school and filed the bankruptcy pro se) failed to list as an asset Mr. Daley's debt to her of $83,925.37. Claimant did not sue Mr. Daley because he had no assets following his criminal conviction for felony larceny from a little league team, was serving one year in jail and faced four years of probation and a restitution order of $162,237. Because of concern about claimant's omission from her bankruptcy filing of Mr. Daley's debt to her, the Board found:  1) a defalcation of $83,925.37; 2) directed an immediate payment to claimant of $17,125.37 representing the difference between the amount of the defalcation ($83,925.37) and the total amount of the debts from which claimant was discharged in the bankruptcy ($66,800.00); and directed counsel to contact the trustee in the Florida bankruptcy for a joint letter of instruction (claimant and trustee) to the Board about the disposition of balance ($66,800.00).

CSB 2007-007 Alan B. Mason, Worcester, MA (Disbarred)
Claimant is a successful buyer and seller of "distressed real estate of investment purposes."  Mr. Mason was once a licensed real estate broker and attorney. He was disbarred in April 2006 and his real estate license was revoked in January 2008.  Claimant first engaged Mr. Mason in 2000 and testified that he did about "six or seven" transactions with Mr. Mason. Mr. Mason's written response to the claim enumerated fifteen transactions with claimant. Claimant alleges that he or Mr. Mason would identify a target property.  If claimant were interested, Mr. Mason would research the title and tell claimant the cost of a complete package (purchase price, lien removal, back taxes, legal fees, etc.) and then claimant would pay the specified amount to Mr. Mason. Claimant listed four properties on which Mr. Mason engaged in self-dealing, profiteering, and failed to discharge liens to claimant's detriment.  In one transaction a major lien holder sued claimant who settled the suit by assigning to plaintiff any recovery that claimant might receive from the Clients' Security Board.  Claimant produced no documentary evidence (a fee statement, letter, pleading, or settlement statement) showing that Mr. Mason ever acted as claimant's counsel during the several years in which they did business.  The Board found no evidence of a lawyer-client relationship in three transactions and no reimbursable loss on the fourth transaction because claimant had already assigned his interest to a third party.

CSB 2006-052 Gerard E. Battista, Norwell, MA (Disbarred)
During August 2000, claimant's now-deceased parents gave Mr. Battista a $13,000 retainer to prepare an estate plan for them.  He prepared individual wills, a durable power of attorney for claimant's mother, drafts of two trusts and a general bill of sale and assignment of assets.  The goal of the estate plan was to insulate (to the extent legally permissible) their mobile home (purchased in 1979) from a calculation of assets to determine Medicaid eligibility. Claimant's father entered a nursing home in April 2003 and her mother followed in October. Under her power of attorney, using her parents' retirement and social security funds, claimant paid the nursing home $48,523.87 in early 2004 and Mr. Battista paid the home $46,336.85 in mid-2005. Despite an August 11, 2000 assignment of assets that transferred the mobile home to claimant, her parents sold the mobile home in August 2005 for $170,000.  Mr. Battista received the net proceeds check of $161,500 and deposited it into his business operating account from which he paid $46,336.85 to the nursing home and $23,685 for a pick-up truck purchased for claimant's husband.  Mr. Battista never accounted for or paid to or for the benefit of claimant's parents $91,478.15.  Claimant explained that her three siblings (all of whom live outside Massachusetts) agreed that the payment for the truck was a form of compensation to claimant for all of her "on-site" work in caring for their parents.  The Board concluded that the amount of the Medicaid payments made for claimant's mother and father after the August 2005 sale of their mobile home exceeded the respondent's defalcation. In the exercise of its discretion, taking into account the totality of the circumstances, the Board found no reimbursable loss and made no award to claimant.

CSB 2007-010 Daniel R. Kirkpatrick, Barre, MA (Disbarred)
Following a 1984 accident that left claimant seriously injured and her husband dead, Mr. Kirkpatrick served as trustee of the husband's testamentary trust. During his disciplinary proceedings he admitted to receiving more than $120,000 in settlement of damage claims (net of his fees and expenses). He also received approximately $91,000 from the sale of  claimant's home.  Although Mr. Kirkpatrick paid approximately $58,000 to or for the benefit of claimant and her children over the years, he failed to account for or pay over the balance. The Board found a defalcation of $153,000 and made an award to claimant in that amount.

CSB 2006-012 John C. McBride, Marblehead, MA (Disbarred)
On January 22, 2003, claimant paid Mr. McBride $19,500 to represent his son in a multi-defendant federal drug conspiracy prosecution while the son was on probation in Lawrence District Court. Less than one week later, claimant sent Mr. McBride an unsigned letter terminating Mr. McBride's services. When asked about the speedy termination, claimant wrote: "The reason I only gave McBride six days because he only lied to me about that he went to see my son in prison.  My son would call me from prison and tell me he never went. McBride just lied. I lost trust in him right from the start."  Mr. McBride explained the relationship in different, but plausible, terms. The federal court docket entries show that Mr. McBride filed his appearance on behalf of claimant's son in September, 18, 2002. Mr. McBride continued that representation through plea (May 8, 2003) and sentencing (September 10, 2003). After a U.S. Supreme Court decision in 2004, Mr. McBride filed a Motion for a Sentencing Rehearing dated July 28, 2005 and recorded on the docket as of August 2, 2005. The motion was denied. The Board found that by accepting Mr. McBride's legal services for more than two years following the termination of services letter, claimant had ratified Mr. McBride's role as counsel. The Board found no evidence of a dishonest conduct to support finding a defalcation.  In the light most favorable to claimant, the evidence presented may show a fee dispute but not a defalcation.  The Board made no award.   

CSB 2006-086 Vincent G. Campanella, Jr., Woburn, MA (Disbarred)
This claim forms Count One of the Petition for Discipline for which conduct Mr. Campanella was disbarred in October 2006.  By failing to answer the Petition, "the charges were deemed admitted."  The Petition alleged both a lawyer-client relationship and a defalcation.  The Judgment of Disbarment confirmed the existence of both. Claimant retained Mr. Campanella on March 5, 2005 when Bar Counsel's investigation into Mr. Campanella's conduct was already under way.  By June 2005 he [Mr. Campanella] decided to ignore all further communications from Bar Counsel and to gather as much money as he could from claimant as quickly as possible.  Mr. Campanella gathered $57,000 from insurers for claimant's benefit and paid out for claimant's benefit or retained as his legitimate fee $44,292. The unaccounted for and unreturned difference is $12,708. The Board found a defalcation of $12,708 and awarded that amount to claimant. 

CSB 2006-006 Anthony R. Bott, East Orleans, MA (Disbarred)
Claimant was injured August 5, 1997 in the bathroom of the workplace to which her temporary agency assigned her. She retained Mr. Bott and signed a contingent fee agreement with him on August 15, 1997. Doctors first treated claimant's wrist injury by injection. When that failed, surgery was performed in January 1998 followed by two months of physical therapy after which claimant was "cleared to return to work only on a limited basis."  Mr. Bott filed suit in July 2000 against the owner/operator of the office building and the cleaning contractor responsible for the condition of the bathroom where claimant was injured.  At approximately this time, claimant and her family relocated to North Carolina where they now reside.  In November 2000, Mr. Bott, without claimant's authorization, forged her name to a Release and Settlement agreeing to a payment of $22,000.  On the very same day, Mr. Bott, again without claimant's authorization, forged her endorsement on the settlement check from the insurer and deposited it to his IOLTA.  The $22,000 settlement was 55% of claimant's actual damages of $39,748.62 that Mr. Bott had documented for the insurer.  The settlement included no compensation for pain and suffering or continuing partial loss of use. By letter of May 18, 2005, Mr. Bott notified claimant that "due to serious mismanagement of my business affairs" the proper distribution of settlement was not paid to her.  Mr. Bott included an itemized list of expenses and a Settlement Statement showing that claimant was due $11,970.61 from the $22,000 payment from the insurer. The Board found that Mr. Bott sold claimant's case short and denied him credit for a contingent fee and expenses. The Board found a defalcation of $22,000 and awarded that amount to claimant.

CSB 2007-013 Paul Joseph Healy, Rockland, MA (Disbarred)
In March 2002, claimant paid Mr. Healy a $2,560 non-refundable retainer to file suit against his former girlfriend to recover one-half of their jointly-owned assets.  Mr. Healy researched the issue, prepared and filed a petition after which claimant changed his mind in July 2002. Mr. Healy gave his complete file to Bar Counsel. Claimant never responded to Bar Counsel's or the Board's request for comment and additional information. The Board found no evidence of dishonest conduct amounting to a defalcation and declined to make an award.

CSB 2007-053 Quang Joseph Nguyen, Dorchester, MA (Disbarred)
In January 2005, Mr. Nguyen represented claimant in the purchase of a house and withheld $5,000 from seller's proceeds to cover the cost of trash removal. Claimant paid $3,000 to a contractor who removed the trash in February 2005 and submitted an invoice to Mr. Nguyen for reimbursement.  Mr. Nguyen moved to Florida in October 2005 and closed his IOLTA in November by withdrawing the last $4,600.02 in it. Mr. Nguyen never paid the $3,000 due claimant. The Board found a defalcation and award claimant $3,000.

 

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