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Case Abstracts for matters heard in October of 2007

    NOTE - The first four abstracts below involve disciplined lawyer Gerard E. Battista who was admitted in June 1994.  Beginning in spring of 2005, clients filed complaints with the Office of Bar Counsel alleging theft of their funds. On October 7, 2005, the Supreme Judicial Court issued an order of temporary suspension followed by an order of disbarment on May 24, 2006. A grand jury indicted Mr. Battista on August 18, 2006, on six counts of felony larceny including the factual situations in the following four abstracts. A jury found Mr. Battista guilty on all six counts and he is now serving a 6-8 year sentence.  Mr. Battista did not respond to these claims.

CSB 2006-064 Gerard E. Battista , Norwell, MA   (Disbarred)
Claimant's aunt retained Mr. Battista to prepare an estate plan consisting of a will and two trusts. Claimant was named as executor of the will and trustee of both trusts.  Following the aunt's death in December 2004, Mr. Battista directed claimant to close the bank and investment accounts for each trust and to transfer the $622,931.54 to him.  After claimant did as instructed, Mr. Battista distributed $175,000 to trust beneficiares between March and August 2005 and then stole the balance.  The Board found a defalcation of $447,931.54 and made an award in that amount to be divided pro rata between the two trusts.

CSB 2006-044 Gerard E. Battista, Norwell, MA  (Disbarred)
During October 2004 claimant's mother sold her home and gave $483,513.95 to Mr. Battista who drafted an irrevocable trust for the mother naming claimant as trustee. Between November 2004 and April 2005, Mr. Battista distributed $244,793.92 according to the mother's wishes. After the mother's death in August 2005, Mr. Battista stole the balance.  The Board found a defalcation of $238,720.03 and awarded that amount to claimant as trustee. 

CSB 2007-009 Gerard E. Battista, Norwell, MA  (Disbarred)
Mr. Battista prepared an estate plan for claimant's mother consisting of two trusts both of which named claimant as trustee. Following the mother's death in July 2005, Mr. Battista directed claimant to transfer all assets of the trusts to him, explaining that distribution to the beneficiaries could only take place through Mr. Battista's IOLTA account.  Claimant transferred $348,559.86 as instructed after which Mr. Battista distributed $10,000 to one trust beneficiary before stealing the balance.  The Board found a defalcation of $338,559.86 and awarded that amount to claimant as trustee. 

CSB 2006-045 Gerard E. Battista, Norwell, MA  (Disbarred)
After claimant sold her home in December 2004, she delivered $165,658.13 to Mr. Battista to be invested for her retirement.  Mr. Battista prepared a living trust and an investment (retirement) trust for claimant and deposited $62,500 into the living trust. Claimant and Mr. Battista agreed that the balance ($103,158.13) would be sent to claimant's investment advisor.  Instead, Mr. Battista stole the funds.  The Board found a defalcation of $103,158.13 and awarded that amount to claimant. 

CSB 2006-046 Gerard E. Battista, Norwell, MA  (Disbarred)
In early 1999, claimant paid Mr. Battista $1,100 to file a bankruptcy petition to seek relief from only one debt: her student loans. Bankruptcy rules required a debtor to file an adversary proceeding against the Dept. of Education or the current owner of the loan to achieve discharge. Mr. Battista apparently was unaware of that because he obtained an ordinary discharge for claimant in October 1999 that was ineffective to discharge the student loans. In July 2001, he moved to reopen the bankruptcy and in July 2002, filed the required adversary proceeding.  It was dismissed in April 2005 because Mr. Battista failed to answer discovery requests.  Mr. Battista never obtained the discharge of claimant's student loan debt while interest and penalties continued to accrue bringing the total amount due to more than $28,000. In May 2005, when claimant inherited $20,416.76 from her grandfather's estate, she delivered the inheritance to Mr. Battista.  He gave claimant $3,000 and she requested that he pay off (or negotiate partial payment of) her student loan with the balance: $17,416.76.  Instead, Mr. Battista stole the money almost immediately.  The board found a defalcation and awarded claimant $17,416.76.

CSB 2006-057 Paul Joseph Healy, Pembroke, MA (Disbarred)
Shortly after being injured in an automobile accident on July 21, 2001, claimant retained Mr. Healy to pursue compensation for his damages.  Claimant signed "multiple papers" that Mr. Healy presented to him.  Those may have included a fee agreement and certainly included the "Letter of Attorney Representation" that claimant later obtained from his insurer.  Claimant did not know that Mr. Healy had settled his claim and had received claimant's $10,000 settlement check.  In early 2005, claimant read in the newspaper that Mr. Healy was disbarred for stealing client funds and contacted the Board. The Board found a defalcation and made an award to claimant of $6,667.00 taking into account the 1/3 contingent fee understanding claimant had with Mr. Healy.

CSB 2007-046 John C. McBride, Marblehead, MA (Disbarred)
Claimant, a former sanitation worker for the town of Framingham, became totally and permanently disabled when injured on the job in March, 1983.  Because Framingham is self-insured, it engaged a third-party administrator to monitor its workers' compensation program.  That administrator prepared a status review in December 1989 about claimant.  An anonymous source delivered a copy of that review to a journalist who published articles based on it in a local newspaper on April 22 and 26, 1990.  In March, 1993, represented by his first lawyer, claimant filed suit against the publisher alleging defamation and invasion of privacy as a result of those articles. After considerable research, discovery and negotiation, claimant's first lawyer told him in late 1994 that the case could be settled for $7,500 from which claimant would receive $5,000.  Claimant mentioned that probable result in a conversation with Mr. McBride who told claimant that the case was worth considerably more. Based on that representation, claimant switched lawyers. Mr. McBride requested $10,000 from claimant "for possible future litigation needs."  With little added work and no litigation, Mr. McBride soon settled the case for $18,000 from which he took a 1/3 contingent fee (not memorialized in a written agreement) leaving claimant with $12,000.  After deducting the $10,000 already paid to Mr. McBride, claimant was left with $2,000, 60% less than if he had followed the recommendation of his first lawyer.   In addition, over the years, Mr. McBride requested (and claimant paid) $7,500 for "investigative purposes" for a civil case, $5,000 to "build a relationship" with a high-profile celebrity doctor presumably to be called as an expert witness on claimant's behalf, and $45,000 for Mr. McBride to invest for claimant.  After repeated requests by claimant, Mr. McBride repaid all three of those amounts, however, he never returned the $10,000 retainer.  The Board found a defalcation based on the totality of the circumstances and made an award to claimant of $10,000.00.

CSB 2007-038 Stephen C. Maloney, Canton, MA (Disbarred)
During December 1998, under the terms of a modified divorce decree, Mr. Maloney received $33,625.94 from claimant's former husband to be held in escrow for the benefit of claimant's minor children. Although fully aware that the funds were to be held for a long period, Mr. Maloney deposited them into his IOLTA instead of a separate interest-bearing account. From that total, Mr. Maloney paid himself $3,500 for legal fees and made two quarterly distributions of $5,200 each to claimant leaving a balance of $19,725.94.  Claimant's former husband then sold a piece of real estate and from the sale proceeds gave Mr. Maloney $178,753.53.  That amount plus the account balance, minus a few credits to which the husband was entitled, brought the escrow fund balance to the court-ordered $200,000.  Again, Mr. Maloney placed the funds into his IOLTA not into a separate interest-bearing account. In March 2000, Mr. Maloney deposited $100,000 into an investment account in his name as trustee for claimant's children.  Records also show that between December 1998 and November 2002, Mr. Maloney distributed not less than $90,400 in child support payments to claimant. In the disciplinary proceedings Mr. Maloney admitted his misconduct with respect to claimant and calculated his defalcation at $18,130 while claimant made two calculations:  $21,615 and $21,308.  The Board awarded claimant the middle figure of $21,308.

CSB 2007-008 Robert N. Wilson, Jr., Ayer, MA (Disbarred)
Claimant retained Mr. Wilson to represent him in a divorce action in February, 2006 and paid him a retainer of $500 against a quoted fee of $1,500.  The balance of the fee was to be paid in periodic installments of $50.  Claimant paid four installments of $50, the last on April 12, 2006, just eight days before Mr. Wilson's temporary suspension.  When claimant heard from a friend that there was a problem with his divorce case at Mr. Wilson's office, he telephoned an associate of Mr. Wilson's, and was told that "the office was under investigation and I would have to file a complaint to get any refund." The Board found a defalcation and awarded claimant $700.

CSB 2007-076 Ronald C. Oberg, Long Beach, CA and Springfield, MA (Deceased)
In December 1998, claimant's employer retained Mr. Oberg to represent claimant, a California resident, in a disability claim before the Social Security Administration "at no cost to you."  Although Mr. Oberg lived and practiced in California, he was not a member of the California bar but was and remained until his death a member in good standing of the Massachusetts bar.  He limited his California practice exclusively to representing clients before the Social Security Administration which is completely legitimate under 20 C.F.R. ¤404.1705. In January, 2000, the SSA sent a five-page Notice of Award to claimant with a copy to Mr. Oberg explaining that claimant would receive promptly a lump-sum arrearage payment of $23,428 from which the SSA would subtract $91 for medical insurance (Medicare) premiums and $5,857 as "money to pay your lawyer."   The notice stated:  "Because a lawyer helped with this claim, we withheld $5,857 from your first check. . . . If the lawyer wants to charge a fee, a request to have it approved should be sent as soon as all work for you is finished. . . . When the amount of the fee is decided, we will pay the lawyer from the benefits we withheld. . . . If the approved fee is less than the money we have withheld, we will send you the rest of the money." Even though claimant's employer paid Mr. Oberg more than $1,100 for his services, he petitioned and received the $5,857 reserved by the SSA.  When claimant brought this to the attention of her former employer she was referred to the SSA that informed claimant that although Mr. Oberg did indeed receive the reserved funds, no case could be reopened "beyond our administrative finality time frame of two years." The Board found a defalcation and awarded claimant $5,857.

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