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Case Abstracts for matters heard in November of 2005

CSB-2005-018 Francis Kelley Landolphi, Salem, MA (Suspended)
Over several years claimant and Mr. Landolphi had a client-lawyer relationship through at least eight disputes, difficulties and transactions. According to claimant, Mr. Landolphi served him poorly at every turn.  According to Mr. Landolphi, claimant "operated a notorious Salem bar" and the many lawsuits filed against him were "a direct result of the disreputable way in which [claimant] has handled himself in business, and nothing else." During the summer of 2004, claimant retained counsel to pursue an action against Mr. Landolphi. On August 16, that counsel wrote to Mr. Landolphi itemizing claimant's grievances "for legal malpractice" that caused claimant some $1,750,000 in damages. Within two weeks, Mr. Landolphi delivered a three-page response contesting the allegations.  On November 24, 2004, claimant filed an application with the Board listing as grievances essentially the same items appearing in counsel's August 16 letter. The Board found no defalcation and made no award to claimant.

CSB-2004-090 Paul Joseph Healy, Pembroke, MA (Disbarred)
During 1961 claimant's mother retained a Massachusetts lawyer to prepare a trust for one of her four children ("61 Trust"). In 1964 the mother again retained that lawyer to prepare the Family Trust to benefit her other three children ("64 Trust").  Then, in 1974 claimant's mother engaged the lawyer once more to prepare a trust for the benefit of all four of her children and, as successor beneficiaries, her grandchildren ("74 Trust").  The lawyer served as co-trustee of all three trusts until his death in 1977 when his son assumed those responsibilities until his death in 1988. In 1989, Mr. Healy, then a young associate at the law firm of the deceased lawyers, was designated by the remaining partners to take on the duties of co-trustee. In May 2000, Mr. Healy deposited the respective funds into three separate margin brokerage accounts in his own name as trustee for the three trusts and he also arranged to have check writing privileges on each account.  Between May 2000 and February 2004, Mr. Healy stole $4,300 from the 61 Trust, $7,243.67 from the 64 Trust and $239,828.32 from the 74 Trust. Claimant is the only surviving child of her mother.  Claimant's sister left five children (now all adults) while her two brothers died without issue. Claimant's sister's five children were the sole beneficiaries of the 61 Trust.  Claimant was the sole beneficiary of the 64 Trust, and claimant and her sister's five children were the joint beneficiaries of the 74 Trust with claimant entitled to 50% and the five children entitled to share equally in the other 50%. By their terms, the 64 and 74 Trusts were not to terminate until after the death of the last surviving child of claimant's mother, namely claimant. Her sister's five children had agreed to join claimant in consenting to the termination of both trusts to avoid the need and expense of petitioning the Probate Court to appoint new trustees and revive the administration of the trusts according to their terms.  The Board found a defalcation and awarded: 1) each of claimant's sister's five children equal shares ($860) of $4,300 misappropriated from the 61Trust; 2) claimant and her two sons a total of $7,243.67 misappropriated from the 64 Trust in amounts as directed by joint consents signed by them; and, 3) each of claimant's sister's five children a 10% share of $239,828.32, or $23,982.83, for a total of 50% of the amount misappropriated and $119,914.16 to claimant conditioned on receipt of consents to such distribution from her two sons.

CSB 2004-033 Bruce G. Rosen, Charlestown, MA (Disbarred)
Claimant's eight-year-old daughter was injured in an auto accident during 2000 that left a disfiguring scar on her forehead.  Claimant retained Mr. Rosen (for a 1/3 contingency fee) to represent his daughter.  Mr. Rosen attempted to file a claim with the insurer for the other driver but was unsuccessful.  He then filed suit against claimant's wife (the child's mother), who was driving the car at the time of the accident, and the other driver. That resulted in a $20,000 settlement from claimant's own insurer. The insurer sent two $10,000 checks to Mr. Rosen who negotiated both by forging the endorsements of claimant and his minor daughter.  From the first check Mr. Rosen retained $6,667 (the 1/3 contingency fee) and paid $3,333 to claimant.  By giving claimant a copy of an insurance company quotation, Mr. Rosen convinced him that he had used the other $10,000 to purchase an annuity (payable at age 18) for the minor daughter.  That was a complete fabrication and Mr. Rosen used the funds for his own benefit. The Board found a defalcation and awarded the claimant $10,000 for the benefit of his minor child.

CSB-2004-012 John C. McBride, Boston, MA (Disbarred)
Following his arrest on federal criminal drug charges in August 1999, claimant retained Mr. McBride and paid him $12,000. According to Mr. McBride, the next day he met with the federal prosecutor during which claimant made a proffer. The complaints were dismissed without prejudice.  The next day claimant received threats causing him to engage substitute counsel. The government later indicted claimant on several drug-related charges that are still pending. During 2001, claimant attempted to have Mr. McBride refund some of the fee paid. After claimant wrote to Bar Counsel, claimant and Mr. McBride agreed to refund $6,000, which Mr. McBride paid to claimant.  Through Bar Counsel, claimant unsuccessfully attempted to have the remaining $6,000 refunded to him. Although $6,000 is a substantial sum for 1) a bail hearing, 2) a meeting with the prosecutor followed by a proffer meeting, 3) an office meeting following the proffer, and 4) an investigation about a possible complaint against a bail bondsman, the Board recognized that Mr. McBride was a well-established and highly-regarded criminal defense lawyer with more than 25 years experience.  As such, the value of his services was difficult to quantify without venturing into highly subjective territory. In light of Mr. McBride's refund of $6,000 and the evidence that he performed valuable legal services for claimant, the Board determined that this was a fee dispute and made no award to claimant.

CSB-2004-016   John C. McBride, Boston, MA (Disbarred)
During 1993, claimant faced drug-related criminal charges and alleged that he retained Mr. McBride to defend him for an agreed flat fee of $7,500.  Thereafter, Mr. McBride persuaded claimant's family to pay him an additional $2,500 bringing the total fee to $10,000.  Claimant alleged that Mr. McBride and one of his colleagues poorly represented him resulting in a guilty verdict and "the maximum sentence." In 1997, while in prison, claimant filed a civil suit for breach of contract and additional damages under G.L.c. 93A (the Massachusetts consumer protection statute) against Mr. McBride to recover the $2,500 paid in excess of the quoted fee and recovered a default judgment and execution for $3,907.19. The Appellate Division rejected claimant's efforts to recover c. 93A punitive damages. The Board found that claimant's unsatisfied judgment and execution against Mr. McBride were for breach of contract and that claimant presented no evidence showing that Mr. McBride stole, embezzled or misappropriated the $2,500.  The Board determined that there was no defalcation and made no award to claimant.

CSB- 2005-016  David Lipton, Boston, MA (Suspended)
Claimant paid Mr. Lipton a $5,000 retainer in May 15, 2002 to represent her son, a college junior, who had been disciplined by school authorities for inappropriate sexual activity with a female student. Mr. Lipton argued that the college failed to give claimant's son a full hearing as required by the student manual and also considered a defamation suit against the female student. Claimant wanted the matter resolved quickly because her son was applying to graduate schools and she wished him to have a clean record.  Claimant terminated Mr. Lipton's services in December 2002 when the matter was still unresolved and hired new counsel who soon resolved the matter. In May 2003, claimant wrote to Mr. Lipton requesting a refund of her retainer.  During Bar Counsel's investigation, Mr. Lipton produced his file showing evidence of substantial work. Successor counsel told Bar Counsel that he believed that Mr. Lipton did a fair amount of work on the matter, did not neglect the matter, but rather pursued some avenues that made little sense.  The Board found the claim to be a fee dispute with no evidence of a defalcation and made no award.

CSB-2005-014 David Lipton, Boston, MA (Suspended)
Mr. Lipton represented claimant in the sale of a restaurant in 1996. The buyers paid in part with a promissory note secured by all the assets of the restaurant and gave Mr. Lipton a UCC Financing Statement. Mr. Lipton failed to record the UCC–1 with the Secretary of State and/or local town clerk, thereby failing to perfect his client's security interest.  A business broker received an $8,000 sales commission as a deposit from the buyers.  Mr. Lipton contested the broker's entitlement to the commission and the broker sent him a $2,000 check for claimant.  Mr. Lipton advised claimant not to accept the $2,000, but to hold out for a full refund.  Bank records from the broker's employer show that the $2,000 check was never negotiated.  Mr. Lipton never presented the check to a bank, perhaps fearing that negotiating of the check would compromise claimant's ability to pursue the full $8,000 commission. Mr. Lipton never received any funds for or on behalf of claimant. The Board made no award finding that claimant financial losses were due to Mr. Lipton's incompetence and neglect.

CSB 2005-065 Kristjan Asgeirsson, Stoneham, MA (Disbarred)
During July 2001, claimant paid Mr. Asgeirsson $1,200 to represent him in a collection matter. Claimant had loaned the owner of small café $5,000 and the owner failed to repay the loan. Claimant asserted that Mr. Asgeirsson failed to provide any legal services. By his lawyer's letter dated February 21, 2004, claimant made demand on Mr. Asgeirsson for a refund of the entire $1,200.  Receiving no response or payment, claimant sued Mr. Asgeirsson in small claims court and obtained a judgment in December 2004. Claimant made every attempt to collect on the judgment without any success.  The Board found a defalcation and awarded claimant $1,200. 

 

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