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Case Abstracts for matters heard in November of 2007

CSB 2006-032 Gerard E. Battista, Norwell, MA  (Disbarred)
In May of 2003, Mr. Battista provided the legal services required to sell claimants' mother's mobile home. According to Mr. Battista's accounting (with which claimants agree), he received the sale proceeds of $120,000 and paid costs and expenses of $8,325, distributed $12,000 to claimants, and placed $80,000 in The XYZ Investment Irrevocable Trust.  He retained $19,675 in his IOLTA account to be used for post-sale expenses with the understanding that once all expenses were paid, the remaining funds also would go into the Trust.  Mr. Battista's accounting showed that he paid $6,270 in post-sale expenses.  Deducting that from the amount he had retained ($19,675) left a balance due claimants of $13,405, the amount of their claim. Mr. Battista never paid that balance or otherwise accounted for it.  The Board awarded that amount to claimant in her capacity as trustee of the XYZ Investment Irrevocable Trust.

CSB 2007-033 Daniel Joseph Wilkins, Chelmsford, MA  (Suspended)
Between November 2003 and March 2005, claimant entrusted $7,000 to Mr. Wilkins to use for settling her past due credit card debts that had been placed for collection. Mr. Wilkins dutifully resolved claimant's Discover Card debt for $3,500.  He then negotiated a $3,000 settlement of the Chase Manhattan (Bank One) debt with the collection agency, Investment Retrievers, Inc., and during August 2005, ostensibly sent them a check for $3,000 to complete the transaction. By that time, Bar Counsel's investigation of Mr. Wilkins was well advanced, having begun during 2004.  When claimant later received a dunning call from Investment Retrievers she realized that something was amiss. Claimant then sent a $3,000 check to Investment Retrievers to complete the earlier settlement negotiated by Mr. Wilkins.  The Board awarded claimant $3,000 believing that Mr. Wilkins had performed legal services valued at $500.

CSB 2007-001 Mark Stephen Williams, Belmont, MA   (Disbarred)
During February 2002, claimant, a Marine Corps veteran and a retired former security guard for a university where he worked for more than fifteen years, protested to his supervisors what he perceived to be "preferred assignments" within overtime.  One supervisor accommodated claimant and modified his overtime duty that day. During claimant's discussion with the other supervisor, he reported that the supervisor "yelled at me, swore at me and otherwise attempted to intimidate and humiliate me.  My sin was to lawfully question the above overtime situation." Claimant became quite upset because "immediately following [the] tirade the nurse sent me home because my blood pressure was extremely high (two days prior it was normal when taken for a routine physical)."  Claimant reported this incident to his union representative who filed a grievance on claimant's behalf.  By May, 2002, the process escalated to a "third step grievance."  Almost simultaneously, claimant retained Mr. Williams and signed a hybrid "flat fee" contingent fee agreement under which claimant paid Mr. Williams $3,500 and agreed to pay one-third of all monies recovered by way of award, settlement or judgment. After the third step grievance was decided unfavorably to claimant, Mr. Williams filed a charge of discrimination with MCAD
1 naming the university and the supervisor as respondents. After the union's Executive Board rejected claimant's request for arbitration, Mr. Williams filed an unfair labor practice charge against the union with the NLRB2 and reviewed claimant's affidavit prepared by an NLRB lawyer. On November 27, 2002, the NLRB found against claimant ruling that the security officers union did not engage in an unfair labor practice.  On August 17, 2004, claimant paid Mr. Williams an additional $950 "for court case coming up and legal fees."   Although claimant sought to recover $4,450 [$3,500 + $950], the Board inferred from the second payment that claimant was pleased with the services provided by Mr. Williams during the first two years of the lawyer-client relationship. However, because Mr. Williams failed to return or account for the $950, the Board found a defalcation and awarded that amount to claimant.  

   1 Massachusetts Commission Against Discrimination.
2National Labor Relations Board.

CSB 2007-066 Mark Stephen Williams, Belmont, MA   (Disbarred)
In December 2003, claimant, a disabled postal worker, engaged Mr. Williams to represent him with respect to problems he encountered applying for disability retirement benefits and paid him a flat fee of $3,500. When, on December 29, 2004, the Office of Personnel Management disallowed claimant's application for the requested disability retirement benefits, he appealed to the Merit Systems Protection Board. In early January 2005, Mr. Williams asked and received from claimant $2,300 to cover anticipated depositions for the phase of the case before the Merit Systems Protection Board. On March 3, 2005, the Merit Systems Protection Board announced that the Office of Personnel Management on its own initiative re-evaluated claimant's file and determined that he was indeed entitled to the disability retirement benefits he sought.  By rescinding its original decision, the Office of Personnel Management effectively mooted the appeal and the Merit Systems Protection Board dismissed claimant's appeal.  When claimant asked Mr. Williams to refund the $2,300 advanced for depositions he said "he would need to take depositions for the next case he was filing . . . so we should just leave it with him."  In September 2005, before relocating from Massachusetts to Texas, claimant gave all of his new contact information to Mr. Williams. Mr. Williams telephoned on December 2, 2005 promising to send the documents for the Federal Court case he was filing.  The documents never arrived and claimant never again heard from Mr. Williams.  On February 6, 2006, claimant faxed a letter to Mr. Williams requesting, yet again, the return of the $2,300. He received no reply, no return of funds and no accounting.  The Board found a defalcation and awarded claimant $2,300

CSB 2006-054 Gerald L.Shyavitz, Norwell, MA   (Disbarred)
In June 2002, claimant visited Mr. Shyavitz for an advertised "no fee" consultation concerning visitation rights with his teenage daughter. Mr. Shyavitz advised against any court action cautioning that forced visitation would cause the daughter to hate claimant. During that consultation, Mr. Shyavitz asked whether claimant had a will or other estate plan. When he learned that claimant did not, Mr. Shyavitz "strongly suggested that I should have one made by him."  Mr. Shyavitz also inquired about claimant's "financial situation and yearly income." Claimant left the consultation explaining that he would discuss the recommendation of an estate plan with his wife.  After that consultation, Mr. Shyavitz called claimant twice at his home "trying to persuade us to come in and to do our estate planning."  On August 8, 2002, claimant and his wife met with Mr. Shyavitz, gave him a $3,000 retainer and some personal information together with a promise to provide additional information. Despite strenuous efforts to deliver that additional information to Mr. Shyavitz, claimant was unsuccessful. Claimant wrote to Mr. Shyavitz in October 2004 prompting three letters reporting on his lack of progress on obtaining claimant's records.  Claimants heard nothing further from Mr. Shyavitz until he responded to this claim. That response began with the unsubstantiated suggestion that claimant actually owed Mr. Shyavitz not less than $520 because the work performed exceeded the fee paid to date. It continued with the lament that he [Shyavitz] did not have any billing records because "once a bill is printed then the time is lost and only exists on the paper bill." Mr. Shyavitz then listed the five documents (revocable trust, will, durable power of attorney, health care proxy and deed into the trust) he prepared for claimant and his wife but never produced a single page of any one of the documents. The Board found a defalcation and awarded claimant $3,000.

CSB 2008-001 Alan Mason, Worcester, MA (Disbarred)
In June 1989, claimant retained Alan Mason to represent him in the sale of a piece of real estate he was gifted. Before the closing, Mr. Mason pointed out that claimant would face substantial state and federal tax bills on the gain because of his low basis in the property. Mr. Mason explained that there was a legitimate procedure to avoid the large tax bill. It consisted of claimant deeding the property to himself and an associate of Mr. Mason's, accountant Harlan Dunn, III as tenants in common, and they jointly would deed the property to the ultimate buyers. Because Mr. Dunn "had accumulated losses due to a series of adverse stock market transactions" he would claim all of the capital gain and "offset it against his prior tax losses." Claimant would have no taxable gain.  For his services in acting as an accommodating party, claimant would pay Mr. Dunn "50¢ for every tax dollar saved" by claimant.  Mr. Mason was to charge claimant a legal fee for representing him in the transaction.  When Mr. Mason assured claimant that "everything would be legal" he signed the agreement prepared by Mr. Mason. After the sale closed, claimant wrote a check for $23,580.15 to Mr. Dunn who immediately endorsed it over to Mr. Mason. Mr. Dunn prepared claimant's tax return for 1989 which, claimant later learned from his own accountant, was contrary to the Internal Revenue Code. With the assistance of his accountant and new legal counsel, claimant filed amended tax returns showing the gain and paid $40,811.00 in federal taxes and $6,727.00 in state taxes. Interest charges were approximately $1,300.00.   When Mr. Mason refused to reimburse claimant for his loss, claimant filed suit in December 1991 against both Mr. Mason and Mr. Dunn.  Claimant obtained judgment against Mr. Mason in July 1995 after which Mr. Mason filed for bankruptcy.  Claimant filed an adversary proceeding to have Mr. Mason's indebtedness to him declared nondischargeable under 11 USC 523.  That adversary proceeding ended with an agreement for judgment in which Mr. Mason stipulated that the debt was non-dischargeable and agreed to pay $30,000 to claimant on or before August 1, 1998. Mr. Mason defaulted on that obligation.  Mr. Dunn was sentenced to state prison in May 2007 as a "common and notorious thief." At the time of this decision, Mr. Mason was awaiting sentencing in federal court following his guilty pleas to two counts of wire fraud and one count of tax evasion. The Board found a defalcation and awarded claimant $23,580.15.


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