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Case Abstracts for matters heard in November of 2008

CSB-2008-004 Jeffrey S. Lambert, Boston, MA (Disbarred and Deceased)
In 1993, Mr. Lambert settled claimant’s husband’s personal injury claim for $250,000 and deducted his 1/3 contingent fee plus expenses from that amount.  The claimant alleged that Mr. Lambert took an additional $50,000 as a loan. In October 1993, Mr. Lambert prepared and delivered a $50,000 promissory note due on October 17, 1994.  In the 12 years between that due date and Mr. Lambert’s death (November 2006), he repaid only $900.  Claimant’s husband died in August 1997.  In March, 1999 Mr. Lambert submitted his resignation and consent to disbarment.  Nevertheless, in May 1999, Mr. Lambert helped claimant be appointed administratrix of her husband’s estate and opined on the sufficiency of her bond.  In June 2001, the disbarred Mr. Lambert accepted $12,425 in legal fees for services to the estate including the sale of the family home.  In March 2003, in her capacity as Administratrix of her husband’s estate, claimant filed suit against Mr. Lambert to recover the $49,100 on the promissory note.  She obtained an attachment on Mr. Lambert’s condominium that ultimately proved to be worthless because of superior liens in foreclosure.  When Mr. Lambert filed for bankruptcy protection in 2004, claimant filed an adversary proceeding and received a May 2007 default judgment finding Mr. Lambert’s debt under the promissory note to be non-dischargeable.  The Board found a defalcation and awarded claimant $61,525 ($49,100 + $12,425 in ineligible legal fees).

CSB-2008-054 James S. Gregson, Saugus, MA (Disbarred)
Claimants, a father and son, retained Mr. Gregson in November 2006 to assist them with some real estate permitting issues, general litigation and assorted other legal issues related to their multiple businesses.  According to claimants, they transferred more than $275,000 to Mr. Gregson in response to his demand for a large retainer and his offer to act as an escrow agent and financial trustee for claimants’ businesses.  According to Mr. Gregson, claimants transferred that large sum to him because they wanted to shield it from creditors and judgment creditors of one of their businesses.  In particular, one of the claimants took a $140,000 home equity loan, transferred it to one of their companies and then wrote a $140,000 check to Mr. Gregson.  Mr. Gregson never gave claimants a fee agreement, a monthly billing statement or any other accounting.  He delivered to claimants several pre-signed checks on his IOLTA account to enable them to access some of their funds.  That lasted until a check bounced and the account was closed.  One claimant admitted the asset-concealment intention because Mr. Gregson frightened him into believing that the family’s personal assets were at risk.  Claimants’ counsel explained that his examination of the contracts relating to the company in question revealed that Mr. Gregson’s advice about personal liability was inaccurate.  In March-April 2007, Mr. Gregson used $40,000 of claimants’ funds to purchase a car for his wife.  He gave claimants an unsigned $40,000 promissory note that he never paid off.  In May 2007 Bar Counsel filed an eight-count petition for discipline against Mr. Gregson that prompted his resignation in February 2008.  According to claimants’ figures, they transferred $156,500 to Mr. Gregson and received back or received the benefit for $87,700 leaving a deficit of $68,800.00.  The sums transferred to and disbursements made for the benefit of claimants’ company were approximately equal.  The Board found a defalcation in an indeterminate sum but, in the exercise of its discretion, made no award because of unresolved credibility questions and claimants’ active participation in what could be viewed as a fraudulent conveyance.

CSB-2008-067 David Ryan O'Desky, Springfield, MA (Disbarred)
Claimant, an 87-year-old widow, documented that she gave $14,680 to Mr. O’Desky between October 4, and November 7, 2007, to represent her granddaughter in an attempt to gain custody of her daughter.  Mr. O’Desky always met claimant at her bank where she either withdrew cash or gave him check while he waited in his car in the bank parking lot.  Although claimant agreed to pay a $1,600 retainer, there was no written fee agreement to describe how it would be managed.  Mr. O’Desky told claimant the money was needed to pay for tests for the great granddaughter or to pay for expenses related to the great granddaughter’s transfer from one custodial location to another in preparation for her return to claimant’s granddaughter.   Those "needs" for money were all false and Mr. O’Desky performed no legal services whatsoever.  On the eve of his sentencing in Superior Court, Mr. O’Desky paid $5,000 in restitution to the court for claimant’s benefit.  The Board found a defalcation and awarded $9,680 to claimant. 

CSB-2008-014 Gerard E. Battista, Jr., Norwell, MA (Disbarred)
Claimants, husband (age 62) and wife (age 59), asked Mr. Battista for help with their finances.  Their $305,000 home had a $183,000 mortgage and they had $75,000 in credit card debt.  Their combined annual income was $52,000 from wages and disability payments.  Claimants gave Mr. Battista a tax refund check of $14,531.00 with which he said he would pay some of their creditors.  In October 2005 Mr. Battista filed a Ch. 7 (no asset) bankruptcy petition for claimants. A few days before the first meeting of creditors the court informed claimants that Mr. Battista had been suspended.  They engaged successor counsel who guided them through their May 2006 discharge during which the court disallowed the $1,000 fee Mr. Battista charged claimants.  One month later, claimants received their file from the commissioner appointed to oversee Mr. Battista’s practice and discovered that Mr. Battista never deposited their tax refund check into his client trust account but rather used it for his own benefit.  Successor counsel told claimants that the $14,531 tax refund should have been part of their bankruptcy estate.  The Board found a defalcation of $14,531 but could not award that amount to claimants because it would have been an unjust enrichment at the expense of their creditors.  Instead, the Board awarded claimants $1,000, the amount of Mr. Battista’s disallowed fee.

CSB-2008-049 Theodore Scott Geller, Worcester, MA (Disbarred)
Claimant paid Mr. Geller $500 cash in October 2001 to represent her on two matters: past due child support and a misuse of her credit cards by her former husband.  Mr. Geller told claimant it was not necessary for her to accompany him to a mediation session after which he reported that judgment would be in her favor.  Claimant later learned that Mr. Geller did nothing on her behalf.  In January 2007 claimant paid Mr. Geller $550 cash to file a bankruptcy for her.  Mr. Geller filed nothing.  Claimant obtained new counsel who filed a voluntary Ch. 7 for her as of August 2008 listing Mr. Geller’s $1,050 debt as an asset.  On October 1, 2008 the Trustee filed a report of no distribution.  The Board found a defalcation and awarded claimant $1,050.00.

CSB 2007-071 Beryl W. Cohen, Boston, MA Suspended and Reinstated)
Claimant is the mother/guardian for psychologically disturbed patient who was living in the care of the Department of Mental Retardation [now the Department of Developmental Services].  In early 2003, as part of cost-reduction program, DMR moved to modify the patient’s Individual Support Plan under which he lived alone in an apartment but had 24/7 on-site support.  The modifications were a choice between a) no overnight support or b) overnight support while sharing quarters with a roommate.  The patient’s psychological and psychiatric counselors advocated for no change.  Claimant paid $3,500 to Mr. Cohen to appeal the ISP change (that extended over a 12-month period) during which she felt he deceived her about case status, gagged her during hearings, lied about his fee structure, and acted as an appeasement agent for DMR's position.  The Board found no defalcation and made no award.

CSB-2006-039 James C. Dragon, Lowell, MA (Disbarred)
On February 26, 2001 a BBO hearing officer recommended that Mr. Dragon be disbarred.  Mr. Dragon appealed and an panel heard oral argument on September 10, 2001.  On November 16, 2001 claimant paid Mr. Dragon $75.00 for an initial consultation about a motion to reopen immigration removal proceedings against him.  Mr. Dragon's records showed a January 16, 2002 receipt for $1,040 from claimant to cover the motion to reopen and filing fee.  On March 5, 2002, the appeal panel recommended disbarment and on April 8, 2002 the full BBO unanimously did likewise.  A single justice ordered disbarment on August 23, 2002.  Mr. Dragon appealed to the full bench.  He ultimately prepared a Motion to Reopen in October 2002 but never filed it with the Immigration Court.  One of Mr. Dragon's staff gave claimant a diskette with the Motion.  Claimant seeks $2,000 but lost the receipts given to him by Mr. Dragon.  Mr. Dragon presented records showing payment of $75 and $1,040 ($1,115) but never contradicted the $2,000 amount claimed.  The Board found a defalcation and awarded the claimant $2,000.00.

CSB-2009-005 Irwin Kwiat, Worcester, MA (Disbarred)
On September 27, 2007 the SJC administratively suspended Mr. Kwiat for failure to cooperate with Bar Counsel's investigation.  On November 9, 2007, Mr. Kwiat accepted and signed an Acknowledgment of Deposit for Services (on his letterhead) for $1,500 from claimant’s son that had been advanced by his mother.  Claimant advanced an additional $200 on November 18, 2007.  The $1,700 was to represent the son on unspecified criminal charges.  Mr. Kwiat never appeared in court and never accounted for the funds.  In April 2008, claimant sued Mr. Kwiat.  After being served, Mr. Kwiat hand wrote a modification on the original Acknowledgment stating that he would pay to claimant $1,750 on or before July 1, 2008 and that upon receipt of payment the lawsuit will be dismissed.  Mr. Kwiat did not honor his agreement.  The Board found a defalcation and awarded claimant $1,700.

CSB 2008-065 Alan B. Mason, Worcester, MA (Disbarred)
Claimant, a major financial institution, advanced ±$200,000 to its borrower for a home purchase in July 2005 that Mr. Mason misappropriated instead of paying off seller’s mortgagee.  Claimant, instead of holding a first mortgage, was subordinate to seller’s unpaid mortgagee.  The seller filed a claim with the Board in order to pay her mortgagee.  In June 2008 the Board awarded ±$198,000 to the seller and her mortgagee.  Before the Board could pay the award to the seller and her mortgagee, the mortgagee received ±$195,000 from the buyer’s title insurer.  The Board’s award to seller and her mortgagee was reduced to simply make up the shortfall after which seller’s mortgage released its lien on the property.  That release elevated claimant to its rightful position as first lien holder on the property and eliminated its loss.  The Board dismissed the claim because claimant no longer had a reimbursable loss attributable to Mr. Mason’s theft.

 

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