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DR 1-102(A)(2)
DR 1-102(A)(5)
DR 1-102(A)(6)
99-3, 99-6,
99-11, 99-15, 99-20,
99-23, 99-24, 99-41,
99-51, 99-59, 99-64,
99-67, 99-70, 99-71,
99-72,
Disciplinary
Rule
Case Number
DR 1-102(A)(4)
99-65
99-25,
99-41, 99-43, 99-46,
99-54, 99-70, 99-73,
99-9,
99-13, 99-25, 99-41,
99-54
DR 2-102(A)
99-43
DR 2-106(A)
99-10,
99-41
DR 2-106(C)
99-24
DR 2-107(A)(1)
99-58
DR 2-110(A)(3)
99-23
DR 2-110(B)(4)
99-41
DR 3-101(B)
99-13,
99-43
DR 5-105(B)
99-7,
99-47
DR 5-105(D)
99-7
DR 6-101(A)(1)
99-16,
99-20, 99-47, 99-57
DR 6-101(A)(2)
99-16,
99-20, 99-23, 99-47,
99-56, 99-57, 99-67,
99-71, 99-78
DR 6-101(A)(3)
99-78
DR 7-101(A)(1)(2)
99-23,
99-6, 99-41, 99-47,
99-70
DR 7-101(A)(3)
99-23,
99-41, 99-47, 99-71
DR 9-102(A)
99-4,
99-8, 99-19, 99-44,
99-46, 99-57, 99-62,
99-66
DR 9-102(B)(3)
99-4,
99-8, 99-24, 99-44,
99-46, 99-57, 99-61,
99-62, 99-66
DR 9-102(B)(4)
99-51
DR 9-102(C)
99-19,
99-46
DR 9-103
99-61
Mass. R. Prof.
C. 1.1
99-24,
99-45, 99-70
Mass. R. Prof.
C. 1.2(a)
99-22
Mass. R. Prof.
C. 1.3
99-14,
99-24, 99-45
Mass. R. Prof.
C. 1.4(a)
99-14
Mass. R. Prof.
C. 1.4
99-24
Mass. R. Prof.
C. 1.6(b)
99-42
Mass. R. Prof.
C. 1.7(a)
99-22
Mass. R. Prof.
C. 1.15(a)
99-1,
99-4, 99-5, 99-21,
99-48, 99-49, 99-50,
99-61, 99-63, 99-68,
99-75
Mass. R. Prof.
C. 1.15(b)
99-2,
99-75
Mass. R. Prof.
C. 1.15(d)
99-48,
99-49, 99-75
Mass. R. Prof. C.
1.15(e)
99-76
Mass. R. Prof.
C. 1.15(f)
99-4,
99-5, 99-21, 99-49,
99-50, 99-62, 99-63,
99-68, 99-76
Mass. R. Prof.
C. 1.16(a)(3)
99-18
Mass. R. Prof.
C. 1.16(d)
99-52
Mass. R. Prof.
C. 1.16(e)
99-56,
99-78
Mass. R. Prof.
C. 1.3
99-60,
99-64, 99-70, 99-72,
99-76
Mass. R. Prof. C.
1.4
99-60,
99-70, 99-72, 99-76,
99-78
Mass. R. Prof.
C. 1.4(a)
99-74
Mass. R. Prof. C.
1.4(b)
99-74
Mass. R. Prof.
C. 1.6(a)
99-52
Mass. R. Prof. C.
4.2
99-77
Mass. R. Prof.
C. 5.5(a)
99-14,
99-43
Mass. R. Prof.
C. 7.1(a)
99-43
Mass. R. Prof.
C. 7.5(a)
99-43
Mass. R. Prof.
C. 8.4(d)
99-12,
99-43, 99-60, 99-69,
99-73
Mass. R. Prof.
C. 8.4(g)
99-12,
99-56, 99-63, 99-68,
99-73
Mass. R. Prof.
C. 8.4(h)
99-26,
99-60
S.J.C. Rule 4:01,
§ 3
99-2,
99-46, 99-56
S.J.C. Rule 3:05
99-24
CLASSIFICATION:
Trust Account Commingling and Recordkeeping
[Mass. R. Prof. C. 1.15(a)]
SUMMARY:
Pursuant to Mass. R. Prof. C. 1.15(f), this matter came to Bar Counsel’s attention as a result of receipt from the depository bank of a notice of dishonored check drawn on the respondent’s IOLTA account. The check in question was for $1400 and payment would have caused an overdraft of $431.
The overdraft occurred because the respondent did not maintain an adequate check register and instead wrote the check for $1400 based on an account balance provided by the bank by telephone. However, this balance did not take into account an outstanding check for $500 that cleared the account in the interim before the check for $1400 was presented. The respondent’s conduct in this respect constituted inadequate recordkeeping, in violation of 1.15(a).
Second, although the respondent properly deposited settlements to the IOLTA account, he paid himself some part of the fees that he was due from those settlements by writing checks directly from the IOLTA account to pay personal or office expenses. The check that was returned because of insufficient funds was in fact a payment of a personal expense. The respondent’s practice of paying personal or office expenses directly from the IOLTA account constituted commingling, also in violation of Mass. R. Prof. C. 1.15(a).
In mitigation, because the returned check was to pay a personal expense, no client was harmed. The respondent was new to solo practice at the time of the events in question. He had previously worked at firms but had never had responsibility for a trust account. He subsequently obtained the services of a bookkeeper, who assisted him in correcting his accounting practices. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATION:
Failure to Notify of Receipt or Account to Client or Third Person for Property
[Mass. R. Prof. 1.15(b)]
SUMMARY:
The respondent agreed to represent a client in an age discrimination case subsequent to the issuance of a probable cause finding by the Massachusetts Commission Against Discrimination. The client’s former attorney had suggested that the client seek counsel skilled in litigation and had recommended the respondent.
During their initial meeting, the client paid the respondent a retainer of $1,000. After a few months, the client communicated his wish to be finished with the case because he was sick and had found his deposition too difficult. Shortly thereafter, the respondent advised the client of the defendant’s willingness to settle for $12,000 (minus federal and state withholding, payroll and other taxes). In addition, the respondent repeated her understanding of the client’s directions, namely that the goal of settlement was to cover her attorney’s fees and bring the matter quickly to a close. The respondent informed the client that her expected fees would most likely be in excess of $5,000. Subsequent to receiving the respondent’s letter, the client executed the settlement agreement.
Three months later, the respondent received the settlement check. She withdrew $5,000 as partial payment for her services and deposited the balance in her IOLTA account. For the next four months the respondent failed to disburse to the client his portion of the settlement funds or to respond to the client’s inquiries. After receipt of notice by Bar Counsel that a grievance had been filed, the respondent paid herself the balance of her fee and costs and forwarded the client a check in the amount of $1,834.52, along with an itemized bill and an apology for her delay.
The respondent received an admonition for failure promptly to deliver to the client the portion of the settlement funds to which he was entitled in violation of Mass. R. Prof. C. 1.15 (b). This disposition was conditioned on attendance at a continuing legal education course designated by Bar Counsel.
CLASSIFICATION:
Neglect of a Legal Matter
[DR 6-101(A)(3)]
SUMMARY:
The client retained the respondent in or about April 1997 to represent her in a disability claim before the Social Security Administration Office of Hearings and Appeals. The respondent received notice of the denial on September 27, 1997. The client had sixty (60) days from the date of receipt of the decision in which to file an appeal. The respondent was five (5) days late filing the appeal. The respondent admitted that his paralegal had notified him of the deadline by writing in the respondent’s appointment book that the appeal was due to be mailed by November 27, 1997. The respondent alleged that his neglect in sending the appeal was due to "a crush of business during the last half of November 1997."
The respondent’s neglect of a legal matter entrusted to him and his failure to timely file an appeal for his client, was in violation of Canon Six, DR 6-101(A)(3).
The respondent, who was admitted to practice in 1977 and had received no prior discipline, received an admonition for the above violation, conditioned upon attending a CLE program designated by Bar Counsel.
CLASSIFICATIONS:
Commingling Clients Funds with Lawyer’s Funds
[DR 9-102(A) and Mass R Prof. C 1.15(a)]
Failure to Maintain Proper Records of Client’s Property
[DR 9-102(B)(3) and Mass. R. Prof. C. 1.15(a)]
Notice of Dishonored Check
[Mass. R. Prof. C. 1.15(f)]
SUMMARY:
This matter came to Bar Counsel’s attention as the result of receipt of a notice from a bank of a dishonored check for $1,300.00 drawn on the respondent’s IOLTA account. The check in question was payable to the respondent for legal services rendered and would have caused an overdraft of $223.03.
A review of the records of the respondent’s trust account showed that the respondent did not withdraw fees in full as earned, but instead allowed fees to accumulate. The respondent withdrew fees piecemeal. This conduct constitutes commingling of business and personal funds in violation of Canon Nine, DR 9-102(A) and Mass R. Prof. C. 1.15(a).
The respondent did not keep a separate ledger for each client, did not keep sufficient track of fees remaining due and did not reconcile his own records with bank statements. As a result, he overestimated the amount left in his account for fees earned when he wrote the dishonored check for $1,300.00. This recordkeeping was below minimally acceptable standards in violation of Canon Nine, DR 9-102(B)(3), and Mass. R. Prof. C. 1.15(a).
In mitigation, the respondent is a solo practitioner. The nature of his practice rarely involves the holding of client funds. The respondent had previously worked in the public sector where he had not needed to maintain a trust account. He has now received training in trust accounting.
The respondent received an admonition for the above violations, conditioned upon attendance at a CLE program designated by Bar Counsel.
CLASSIFICATIONS:
Notice of Dishonored Check
[Mass. R. Prof. C. 1.15(f)]
Commingling Clients’ Funds with Lawyer’s Funds
[Mass. R. Prof. C. 1.15(a)]
Failure to Maintain Proper Records of Client’s Property
[Mass. R. Prof. C. 1.15(a)]
SUMMARY:
This matter came to Bar Counsel’s attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account. The account in question was in fact a commingled account into which the respondent deposited personal injury settlements and earned fees, and from which, in addition to proper disbursements to or for the benefit of clients, he made direct payment of personal and business expenses. He did not always keep adequate track of withdrawals of his own funds, resulting in the overpayment that led to the dishonored check. The check that was returned unpaid was to pay personal expenses and there were no client funds in the account at the time.
The respondent’s conduct in this matter constituted commingling and inadequate recordkeeping, in violation of Mass. R. Prof. C. 1.15(a). In mitigation, the respondent is a solo practitioner who has been a member of the Massachusetts bar since 1979 with no prior discipline. He now understands his errors and has taken corrective measures. He therefore received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATIONS:
Neglecting a Legal Matter
[DR 6-101(A)(3)]
Failure to Represent a Client Zealously
[DR 7-101(A)(1),(2)]
SUMMARY:
The respondent received an admonition for neglect and failure to represent clients zealously in three unrelated matters.
In the first matter, the respondent was appointed to represent a defendant on a criminal charge pending in district court. The defendant was also representing himself pro se in two other pending criminal cases in the same court. The defendant admitted to sufficient facts in all three cases. He received a sentence of one year in the house of corrections (forty:five days to serve, balance suspended for two years) on the matter in which the respondent was counsel of record, with concurrent sentences imposed in the other two matters.
At the defendant’s request, the respondent filed motions to revise and revoke in all three cases, with the intent of trying to get the guilty findings vacated in all three matters. He was appointed by the court for this purpose in the two cases in which the defendant had previously been pro se. After doing some preliminary work on the matter, and despite several intervening requests from the defendant to schedule the motions for hearing, the respondent took no further action due to the client’s failure to produce his witnesses until December 1995, when he requested a hearing date. The respondent did not properly diary the hearing date and failed to appear for the hearing on April 4, 1996. He took no further action and the defendant’s revise and revoke motions have never been heard.
The likelihood of success in persuading a judge to allow the defendant’s motions to revise and revoke and to vacate guilty findings in the three cases was very low. However, the respondent was appointed by the court to represent the defendant on the motions. His failure to appear in court for the hearing, and his failure to reschedule the hearing thereafter constituted neglect and failure to represent the client zealously in violation of Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7-101(A)(1),(2).
In an unrelated matter, a vendor had filed an action against a woman and an inn owned by her former husband. The woman had been served with the civil complaint in April 1996. Believing that her former husband would take care of the matter, she took no action to defend against the claim and a default judgment entered against her in the amount of $15,526.66. After the judgment entered, the woman’s ex-husband contacted the respondent in February 1997 and the respondent agreed to seek removal of the judgment and to represent the woman in the case.
The respondent sent a letter of representation to plaintiff’s counsel on February 18, 1997. The respondent did some initial work on the case and talked by telephone with the woman, but during the nine-month period that he represented her, the respondent never met the client, never filed his appearance in the case, and never filed a motion for relief from judgment. His conduct in this respect was in violation of Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7-101(A)(1),(2).
The client hired new counsel in November 1997. The respondent promptly sent his file to the client’s new attorney and refunded the $750 retainer that her ex-husband had paid him. The client’s new attorney filed a motion for relief from judgment, which was allowed on March 18, 1998. There thus was no ultimate harm to the client.
In the third matter, a defendant had been convicted of operating a motor vehicle while under the influence of alcohol. The respondent did not represent him in that case. The defendant appealed the conviction. The court papers then disappeared before being transferred to the jury of six for trial de novo.
The defendant was charged with obstruction of justice and theft of court documents and the respondent was appointed to represent him in that matter only ("the second case"). The respondent did not request that he be appointed to represent the defendant on the original operating under the influence case but his plea negotiations included disposition of both matters. The defendant decided not to accept the negotiated plea agreement. The respondent then decided to move to withdraw as the defendant’s attorney in the second case. By letter dated September 30, 1996, the respondent advised the defendant of his intent to move to withdraw and informed him of a new trial date.
In the interim, the prosecutor scheduled the operating under the influence charge for a status hearing on August 7, 1996. Believing the respondent to be the defendant’s attorney of record on that case, she sent the respondent, and not the defendant, notice of her scheduling request. The respondent denies receipt of this notice and does not recall appearing on this case on August 7, although the prosecutor maintains that he was there. The matter was continued to August 15. Neither the respondent nor the defendant appeared in court on August 15.
The prosecutor filed a motion in court requesting that the lower court sentence be imposed on the operating under case as a result of the defendant’s default. The motion was allowed. On September 30, 1996, the defendant was arrested on the default warrant that had been issued in the operating under the influence case. When he appeared in court, the original sentence on the operating under charge was put into effect.
The defendant tried to contact the respondent after he was incarcerated but the respondent did not return his telephone calls or reply to his letters. The respondent accordingly did not investigate the circumstances surrounding the default and the default hearing and did not request that the court appoint him to represent the defendant at a new hearing regarding the default. Further, the respondent failed to attempt to promptly resolve that matter in order to lessen the possibility of the defendant’s serving additional time in prison. He remained counsel of record in the second case and did not file his motion to withdraw until December 21, 1996. The respondent’s conduct in this matter again was in violation of Canon Six, DR 6 101(A)(3) and Canon Seven, DR 7-101(A)(1),(2).
Except for the possible loss of his appellate rights in the OUI case, there was no ultimate harm to the defendant. The obstruction of justice charge was dismissed, and the larceny charge was placed on file after a change of plea.
In mitigation, the respondent has been a member of the bar since 1977. He has no prior discipline. During 1996 and 1997, the respondent had serious family problems that affected his practice. The respondent’s misconduct occurred prior to the decision of the Board of Bar Overseers in Matter of Kane, Public Reprimand no. 97-15, setting prospective standards for discipline in neglect cases. Accordingly, the respondent received an admonition, conditioned upon his attendance at a CLE course designated by Bar Counsel.
CLASSIFICATIONS:
Conflict of Interest Between Clients
[DR 5-105(B)]
Vicarious Conflict
[DR 5-105(D)]
SUMMARY:
The respondent continued to represent a client after learning that a lawyer with whom he was associated in practice represented an adverse party, failed to advise the other lawyer or the clients of the conflict, and failed to withdraw.
In September 1992, the respondent was part of a group of several lawyers who leased office space together which was subdivided into individual offices and a single reception area. The lawyers shared a library, storage rooms, a conference room, common areas, an address and telephone number. The group also shared expenses for rent, letterhead, utilities, telephone bills, and, at times, salaries for clerical staff. The lawyers had access to the files of any lawyer in the office. The letterhead identified them as a professional association, followed by the address and telephone number. The lawyers made individual arrangements for clients funds accounts and malpractice insurance and were individually responsible for their cases. They did not share fees. There was no system for detecting conflicts of interest among the various lawyers’ clients.
On September 9, 1992, the respondent was retained by a client, John, to defend him on charges of driving under the influence and driving to endanger. The charges arose from a September 6, 1992 automobile accident.
Also on September 9, 1992, Beth, who was injured in the accident when John’s vehicle struck her vehicle, retained another lawyer in the respondent’s professional association to represent her in civil claims for personal injuries and property damage.
On September 9, 1992, the other lawyer wrote a letter to John notifying him that he represented Beth and requesting that John have his legal representative or insurance agency contact that lawyer.
Upon receipt of the September 9, 1992, letter from the other lawyer, John telephoned the respondent to seek his advice. The respondent directed John to transmit the letter to his auto insurer. John then asked the respondent why his name appeared on the other lawyer’s letterhead. The respondent replied that they shared space but were not partners and had no dealings with one another. In fact, the respondent was aware that he and the other lawyer were not friendly, did not discuss cases together and the other lawyer planned to move his practice in the near future. The respondent did not appreciate, and therefore did not disclose to John, that, as members of a professional association, he and the other lawyer could likely not both continue representation of clients with directly adverse interests and adequately represent the interests of each. In addition, the respondent did not bring the conflict to the other lawyer’s attention so that Beth could be consulted.
During the two succeeding months, the other lawyer corresponded with insurance companies concerning Beth’s civil claims, but had no involvement in the criminal case against John and no knowledge that the respondent represented John. At the end of November 1992, the other lawyer relocated his office and left the association. With that lawyer’s relocation, no one remained in the association who had any confidential information concerning Beth. In August 1993, Beth fired the other lawyer and retained successor counsel, who brought suit against John and placed an attachment on his residence. John, who was represented in Beth’s civil action by counsel hired by his insurer, asked the respondent to represent him as well in that matter. In 1994, the respondent obtained a favorable plea bargain for John on the criminal charges and negotiated settlement of so much of Beth’s bodily injury claim as exceeded the available insurance coverage.
Clearly, the same lawyer could not have adequately represented both clients, even if that lawyer had obtained the clients’ consent after full disclosure. Canon Five, DR 5-105 (A) and (B). Canon Five, DR 5-105(D), the ethical rule in effect at all times relevant to these events, prohibited "any other lawyer associated with
[a disqualified lawyer] or his firm" from undertaking or continuing the representation of a client whose interests conflicted with those of another client.
Even though the individual lawyers in the professional association regarded themselves as sole practitioners, for conflicts analysis, they constituted a firm, based on the circumstances of their association (sharing personnel, letterhead and telephone lines, and access to client files) as well as the claims on their letterhead. Comm. v. Colon, 408 Mass. 429, 429 (1990) (two attorneys in a group which shared operating expenses of a law office and held themselves out to the public as a firm deemed "associated" under Canon Five, DR 5-105(D) for disqualification purposes).
CLASSIFICATIONS:
Commingling Trust or Escrow Funds
[DR 9-102(A)]
Failure to Maintain Proper Records of Client’s Property
[DR 9-102(B)(3)]
SUMMARY:
This matter arises from Bar Counsel’s receipt in May 1997 of a notice of dishonored check from the bank in which the respondent maintains his IOLTA account. The check in question was in the amount of $310 and was payable to the Land Court.
The respondent’s original explanation for the return of the check, proffered ten weeks after the incident, was that he picked up a check from a client intended to cover the payment to the Land Court, that he then parked and took the train to Boston to file papers with the Land Court and returned too late to get to the bank to make the deposit. Thus, the respondent said, the supporting deposit was not made until the following afternoon and the check to the Land Court had already been returned for insufficient funds.
This explanation was not correct and the respondent subsequently admitted that he was confused and that his records were insufficient. The respondent did not receive the supporting check from his client until several weeks after his IOLTA check to the Land Court was returned. The Land Court check was paid when resubmitted only because the respondent in the interim deposited cash to cover it.
Bar Counsel’s investigation further revealed that the respondent did not always withdraw fees due him from the IOLTA account promptly when earned and that on occasion he withdrew his fees piecemeal and used the funds to pay personal expenses directly from the IOLTA account or to advance expenses for which he had not received funds from the client. Both of these latter types of payments should have been made from a personal or operating account, not a trust account.
The respondent’s conduct in this matter constitutes inadequate recordkeeping and commingling, in violation of Canon Nine, DR 9-102(A) and (B)(3). The respondent accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATION:
Conduct that Adversely Reflects on One’s Fitness to Practice Law
[DR 1-102(A)(6)]
SUMMARY:
The respondent was counsel for the plaintiff in a personal injury motor vehicle claim. In response to direct examination by defendant’s counsel during a September 1997 deposition of the respondent’s client, the client drew a diagram depicting the scene of the accident. In cross examination by the respondent, the client realized that she had mistakenly written "stop sign" on the diagram where she meant to write "stop light." When the respondent asked the client to cross out the words "stop sign" and write in "stop light," opposing counsel objected. A disagreement between counsel ensued and the respondent indicated that he would make the correction himself. The respondent took the drawing in his hands, and opposing counsel, who was standing behind the respondent, reached in front of the respondent. The respondent felt a tug on his arm and, in an attempt to fend off what he perceived as a hostile action on the part of opposing counsel, reached up and struck opposing counsel in the mouth with his fist. As a result of the blow, opposing counsel suffered a mild concussion and a lacerated lip.
Physical violence on the part of a lawyer in a deposition constitutes conduct adversely reflecting on the attorney’s fitness to practice law in violation of Canon One, DR-1-102(A)(6).
The respondent received an admonition for this incident. This disposition was conditioned on his attending a legal education course designated by Bar Counsel and a stress management course.
CLASSIFICATION:
Excessive Fees
[DR 2-106(A)]
SUMMARY:
A defendant was charged in the Worcester Superior Court with possession of cocaine. The defendant had a lengthy criminal record and a long history of mental illness. The Committee for Public Counsel Services was appointed to represent him. The defendant’s appointed counsel determined that it was in the defendant’s best interest to plead guilty. He negotiated a plea agreement with the prosecutor, and then recommended to the defendant that he plead guilty and accept a sentence of 2 to 4 years committed.
Prior to his arrest, the defendant had been found incompetent to handle his affairs by the Worcester Probate Court. His sister was appointed as his guardian. However, this ruling was not binding in the criminal court. The defendant had not been found incompetent to stand trial.
The defendant informed his sister of his attorney’s recommendation regarding the criminal case. She was concerned that the defendant’s attorney had not sufficiently explored a psychiatric defense. She therefore decided to retain an attorney to represent the brother. On or about September 6, 1996, she contacted the respondent. They agreed that the respondent would be paid $1,500 to investigate and evaluate the case and $3,500 to dispose of the matter. A written fee agreement was signed and the defendant’s sister paid the respondent the $1,500 retainer.
The respondent’s investigation consisted of reading the psychiatric reports that had been given to him by the defendant’s sister and speaking with the defendant and his appointed counsel. The respondent also concluded that it was in the defendant’s best interest to plead guilty. The respondent did not report his findings to the defendant’s sister. He told her that he would take the case and requested payment of the $3,500. The respondent entered his appearance on behalf of the defendant on September 19, 1996.
The defendant’s sister heard nothing further about the case until the defendant telephoned her on September 27. He informed her that he was scheduled to plead guilty on September 30. The defendant’s sister was unable to reach the respondent until immediately before the court hearing. The respondent then informed her that the defendant did not have a viable defense and that the case should be resolved by a guilty plea. The respondent said that he would attempt to persuade the court to sentence the defendant to 18 months committed. The defendant pled guilty and received a sentence of 2 to 4 years at the Massachusetts Correctional Institute at Cedar Junction. This was the same sentence that the defendant’s public defender had previously negotiated.
The respondent’s failure to inform the defendant’s sister that he concurred with the appointed counsel’s analysis of the defendant’s case before requesting the sister to pay him $3500 to do what appointed counsel had planned to do, constituted entering into an agreement to charge an excessive fee in violation of Canon Two, DR 2-106. There was no ultimate harm to the defendant or his sister, because the respondent disposed of the defendant’s case without being paid the additional $3,500.
The respondent has been a member of the bar since 1980. He received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by Bar Counsel.
CLASSIFICATION:
Neglect of a Legal Matter
[DR 6-101(A)(3)]
SUMMARY:
In or about March 1997, the respondent was retained and paid a $2,000 retainer by a woman whose lover had died without including her in his will and who wished to make a claim for services against his estate.
Between March 1997 and March 1998 the respondent took no action to pursue the claim for services on behalf of the client, ignored her numerous telephone calls requesting information, and failed to respond to a January 1998 letter from the client in which she demanded a copy of any pleadings filed in court and an accounting of any services. The short one-year statute of limitations for claims against estates had expired by the time the client retained successor counsel and learned that the respondent had filed no pleadings on her behalf.
During the course of the representation, the respondent communicated to the client his opinion that she would be unlikely to prevail in her claim against the estate. The client indicated that she nonetheless wished to go forward. The respondent thereafter failed either to act or to refund the unearned retainer and advise the client in a timely manner that he did not wish to continue to represent her. After the client filed a complaint with Bar Counsel, the respondent returned the $2,000 fee.
The respondent was admitted to practice in 1982. In 1993 he received an informal admonition for neglect of a real estate matter.
The respondent received an admonition for his neglect of the client’s claim in violation of Canon Six, DR 6-101(A)(3). This disposition was conditioned on his attendance at a continuing legal education course designated by Bar Counsel.
CLASSIFICATIONS:
Conduct Prejudicial to the Administration of Justice
[Mass. R. Prof. C. 8.4d]
Failure to Cooperate in Bar Discipline Investigations
[Mass. R. Prof. C. 8.4g]
SUMMARY:
The complainant is a court reporter who prepared a trial transcript at the respondent’s request. When the respondent did not pay her bill, she filed suit and obtained a default judgment. Thereafter, despite the issuance of two capiases, the respondent did not pay the judgment and have the second capias removed until after the court reporter complained to the Office of Bar Counsel.
The respondent also did not respond to Bar Counsel’s requests for information, necessitating the issuance of a subpoena.
By failing to obey a lawful court order, necessitating the issuance of two capiases, the respondent violated Mass. R. Prof. C. 8.4(d). By failing to cooperate in Bar Counsel’s investigation until he appeared under subpoena, the respondent violated Mass. R. Prof. C. 8.4(g).
The respondent received an admonition for his conduct in this matter.
CLASSIFICATIONS:
Conduct Adversely Reflecting on Fitness to Practice
[DR 1-102(A)(6)]
Unauthorized Practice in Another Jurisdiction
[DR 3-101(B)]
SUMMARY:
The respondent received an admonition for his conduct in two unrelated matters arising from complaints filed by out of state attorneys.
In the first matter, the respondent in 1996-7 had a fee dispute with the New York attorney who had represented the respondent’s stepmother as executrix of his father’s estate. The stepmother died after her accounts, to which the respondent had assented, had been allowed. Thereafter the respondent sought information from the out-of-state attorney, as well as a refund for a portion of the fees charged and collected. Because the respondent was not the fiduciary, the other attorney refused to provide the information requested or to refund any of the fee. The respondent threatened to file suit against the other attorney, or to take action to have his stepmother’s accounts reopened, but never initiated any court action. However, he did write several letters to the other attorney, and called him on numerous occasions both at his office and at home. At least two of those calls were "hang-up" calls placed from the respondent’s home telephone to the other attorney’s home telephone in the middle of the night. The respondent’s conduct in making repeated unauthorized calls to the other lawyer at his home, and especially by making calls in the middle of the night, reflected adversely on his fitness to practice and violated Canon One, DR 1-102(A)(6).
In the second matter, the respondent in 1997 entered an appearance on behalf of three defendants in a matter filed in a California court, although he was not admitted to practice in that state. He did not seek or obtain court permission to appear pro hac vice. He also did not associate with local counsel, although he did make unsuccessful attempts to retain local counsel. His action violated California regulations providing that no person shall practice law in that state unless an active member of the state bar. The respondent’s conduct thus constituted unauthorized practice of law in violation of Canon Three, DR 3-101(B).
CLASSIFICATIONS:
Neglect of a Legal Matter
[Mass. R. Prof. C. 1.3]
Failure to Communicate with a Client
[Mass. R. Prof. C. 1.4(a)]
Unauthorized Practice of Law
[Mass. R. Prof. C. 5.5(a)]
SUMMARY:
The respondent was retained to handle the probate of a will for a decedent who died in November of 1996. The respondent met with the family and received a $750.00 retainer in December of 1996. In March of 1997, he filed the petition for probate, and in June of 1997 received the order appointing the decedent’s daughter as executrix.
The respondent did not send his client a copy of her appointment as executrix until January of 1998, and failed to return her telephone calls inquiring about the settlement of the estate.
On July 8, 1998, the executrix discharged the respondent, and requested that her file and her retainer be returned. After a complaint was filed with Bar Counsel, the respondent returned the file and the full amount of the retainer.
During the one and one-half years the respondent was handling this matter, the respondent did not file a Massachusetts estate tax return to obtain the release of the estate tax lien, or assist his client in filing and seeking the allowance of her final account. Although this was a non:taxable estate, it was necessary to file the Massachusetts estate tax return in order to obtain a release of the estate tax lien on the real property owned by the decedent on his date of death in 1996.
During the period while he was handling this legal matter, the respondent accepted a non:legal position and closed most of his practice. The respondent thereafter failed to pay his lawyer registration dues to the Board of Bar Overseers. As a result, on April 14, 1998, the respondent was administratively suspended for failure to pay his annual bar registration fee.
By failing to settle this simple estate matter in a timely manner, the respondent neglected a legal matter entrusted to him in violation of Mass. R. Prof. C. 1.3 and its predecessor, Canon Six, DR 6-101(A)(3). By failing to communicate adequately with his client on the subject of the representation, the respondent violated Mass. R. Prof. C. 1.4(a) and its predecessor, Canon Six, DR 6-101(A)(3). The respondent also violated Mass. R. Prof. C. 5.5(a) by practicing law while under an administrative suspension.
In mitigation, the respondent was admitted to practice in 1988 and had received no prior discipline. The respondent also returned the client’s full retainer.
Where the respondent is no longer engaged in the active practice of law and where the estate did not suffer financial harm as a result of the respondent’s neglect, the respondent received an admonition for his conduct.
CLASSIFICATION:
Neglecting a Legal Matter
[DR 6-101(A)(3)]
SUMMARY:
In May 1990, a resident of Massachusetts retained the respondent pursuant to a standard written contingent fee agreement to represent him in a personal injury claim resulting from an automobile collision. On February 16, 1990, the client had been driving a vehicle in California when he was hit from behind by another vehicle. Liability on the part of the other driver was reasonably clear. At the time of the accident, the client was driving a vehicle with a California registration. The law of California applied to the accident.
The client had not received any medical treatment at the time he first consulted with the respondent in May, 1990. According to the respondent, the client saw the respondent for the purpose of obtaining chiropractic treatment if the cost could be paid by the automobile insurance carrier.
The respondent asked a paralegal in his office to check Martindale-Hubbell for the applicable California law, including personal injury protection (PIP), contributory negligence, tort threshold and the statute of limitations. At this time, the respondent was unaware of the one-year California statute of limitations. The PIP research was done, but the respondent’s staff did not communicate information to the respondent concerning the statute of limitations. As a result, the respondent did not communicate to his client the existence of the one-year limitation period. On October 10, 1990 the respondent sent a letter to the client stating that jurisdiction for suit against the tortfeasor was in California only.
Prior to the running of the statute, the respondent frequently communicated with the insurance carrier in an attempt to settle the claim, and according to the respondent, the insurer led him to believe that the case would be an easy settlement. In fact, the insurer wrote two letters to the respondent promising that the carrier would pay all of the client’s medical expenses when the bodily injury portion of the case was settled. An offer was made one day prior to the running of the statute, but was rejected by the client. Four months after the offer was rejected, the insurer informed the respondent for the first time that the insurer was refusing to settle because the California one-year limitations period had expired.
Thereafter, the respondent informed the client that suit had not been commenced within the one-year California limitations period and that the client might have a claim against the respondent and the respondent’s firm. The respondent also advised his client of a potential claim against the insurer. In September 1992, with the consent of his client, the respondent filed a lawsuit against the insurance carrier under G. L. c. 93A, § 9, as it incorporates G.L. c. 176D, § 3(9), for its failure to pay damages, or an advance on damages, in a case in which liability was reasonably clear. The respondent zealously pursued the case at no cost to his client, but summary judgment ultimately entered in favor of the defendant. The client, on the advice of new counsel, decided to withdraw the appeal filed by the respondent.
In November 1995, the respondent’s former client, through new counsel, filed a legal malpractice claim against the respondent. The matter was resolved without admission of liability.
The respondent’s failure to research the California statute of limitations and his failure to timely communicate to his client the need to retain California counsel to file suit within the statute of limitations, was in violation of Canon Six, DR 6-101(A)(3) (neglect). In mitigation, the respondent diligently pursued remedial action.
The respondent received an admonition for the above violation.
CLASSIFICATIONS:
Handling a Legal Matter which One is not Competent to Handle
[DR 6-101(A)(1)]
Handling a Legal matter without Adequate Preparation
[DR 6-101(A)(2)]
SUMMARY:
In or around August 1995, an individual ("the defendant") was charged with making annoying telephone calls and threatening to kill police officers and various members of a golf club where he was employed. The defendant had a history of alcohol abuse and psychiatric problems. The respondent became involved as a friend and attempted to get the defendant into an alcohol treatment program. The defendant then defaulted at his December 1995 trial date.
On or about January 22, 1996, the defendant was arrested on the default warrant and held in lieu of bail. His mental health had deteriorated. Counsel was appointed to represent him and the case was continued for trial. The defendant’s new counsel advised the prosecutor that he wished to have the defendant evaluated regarding competency to stand trial. Before this request was made, the respondent was retained to represent the defendant by the defendant’s father. The respondent entered his appearance on February 2, 1996. The respondent had no experience in handling criminal cases involving defendants with psychiatric problems. He viewed the defendant’s problems as being primarily alcohol-related.
In or around the end of February the defendant’s mental condition further deteriorated. He was transferred from the jail to Bridgewater State Hospital pursuant to MGL Chapter 123§18A. The defendant was evaluated regarding whether he required hospitalization by reason of mental illness. The psychiatrists at Bridgewater determined that the defendant should be hospitalized and a petitioned for his commitment was filed by the hospital.
The respondent was aware that the defendant was being held at Bridgewater, but did not see Bridgewater’s evaluation of the defendant pursuant to §18A. Although the respondent had some questions regarding the defendant’s competence, he did not request that the defendant be evaluated at Bridgewater as to competency and/or criminal responsibility. He incorrectly assumed that Bridgewater would evaluate the defendant’s competency as a matter of course. If the defendant had been evaluated and found to be incompetent to stand trial, and committed as a result of that finding, the respondent could have requested that the charges against the defendant be dismissed. Courts often entertain such requests when, as in this case, the pending charges are misdemeanors. In addition, if the defendant had been found to be not criminally responsible, the defendant would have had a defense to the charges against him.
Instead, the respondent advised the defendant to plead guilty to the pending criminal charges on March 18, 1996. He allowed the defendant to be sent to back to Bridgewater State Hospital for an evaluation in aid of sentencing pursuant to MGL Chapter 123§15E. Upon the defendant’s return the respondent intended to request that the defendant receive treatment for his problems and then be placed on probation. However, the respondent had not seen Bridgewater’s 18A evaluation nor had he ever had the defendant evaluated by an independent psychiatrist. Therefore the respondent had no idea what treatment would be recommended for the defendant.
As a result of the defendant’s guilty plea, Bridgewater withdrew its petition to commit the defendant pursuant to §18A. The defendant was then evaluated pursuant to §15E. The §15E report was filed in court on April 24, 1996. Bridgewater recommended that the defendant be committed to Bridgewater for treatment and that the commitment be followed by a suspended sentence and probation. The hospital filed a petition to commit the defendant for six months.
Although the defendant did not wish to be committed to Bridgewater, the respondent did not request a hearing on the matter. He did not request an independent evaluation of the defendant in order to explore other alternatives for the defendant. The respondent stipulated to the §15E report, and the defendant was committed. The criminal charges were continued to October 29, 1996, for status. The respondent expected the defendant to be released at that time.
The defendant filed a grievance against the respondent at the Office of Bar Counsel in August 1996. Then, contrary to the respondent’s expectations, Bridgewater petitioned to commit the defendant for an additional year. Counsel was appointed to represent the defendant on that petition, and the defendant’s criminal cases were continued. The respondent withdrew as the defendant’s attorney on January 8, 1997, and counsel was appointed to represent the defendant on the criminal charges as well. On January 29, 1997, the defendant’s commitment to Bridgewater was extended until January 29, 1998.
The defendant’s criminal cases were heard on February 4,1998. He was sentenced to four consecutive sentences of six months in the house of Correction (a total of two years to serve), plus two years probation. The committed sentences were deemed served as the defendant had been in custody since January 1996.
The respondent failed to investigate the issues of competency to stand trial and criminal responsibility. He failed to adequately explain available options to the defendant so that the defendant could make informed decisions regarding how to proceed. He failed to challenge the petition for commitment of the defendant to Bridgewater and explore alternative options for the defendant. His conduct in this matter appears to have been a product of his inexperience. Although the respondent had previously handled criminal defense matters for defendants with alcohol problems, he had virtually no experience with cases involving mental illness. He did not consult with attorneys experienced in these matters. The respondent’s conduct was in violation of Canon Six, DR’s 6-101(A)(1)and (2).
In mitigation, the respondent has been a member of the bar since 1962, and has no prior discipline. Further, there may not have been any real harm to the defendant. Even if the respondent had done everything possible for the defendant, the end result would not likely have been much different. The defendant was clearly mentally ill and required commitment for treatment. The most that the respondent probably could have accomplished would have been to have the defendant committed to a less restrictive facility than Bridgewater.
The respondent received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by Bar Counsel.
CLASSIFICATION:
Violating or Circumventing a Disciplinary Rule
[DR 1-102(A)(2)]
SUMMARY:
The respondents are a partner and associate in a law firm. In 1997, the associate on behalf of the firm sent letters individually addressed to 800 real estate brokers in the local area, announcing "a special offer for your buyers who wish to have their Purchase & Sale Agreements reviewed by an attorney." The remainder of the letter, as well as the flyer enclosed with the letter, makes clear that the firm was hoping to act as closing attorney for the lender and not only as buyer’s attorney. The flyer offers to negotiate the P&S for a fee of $195, which charge would be credited against the borrower’s settlement charges on the HUD-1 statement if the law firm is retained to close the loan.
Although the letters and envelopes were not labeled "advertisement", Bar Counsel’s view is that these letters did not constitute direct-mail solicitation of legal business as that term is used by former Canon Two, DR 2-103(c) (now Mass. R. Prof. C. 7.3(c)) because the brokers were not the targeted prospective clients. As such, no labeling as "advertisement" was required.
However, the correspondence was nonetheless improper. The respondents hoped that brokers receiving the communication would recommend, or at least suggest, their firm to buyers as their closing attorney. To the extent that the brokers would make such recommendations to the buyers in person or by telephone, their doing so would constitute a violation of former Canon One, DR 1-102(A)(2) (circumventing a disciplinary rule through the actions of another), now part of Mass. R. Prof. C. 8.4(a). Since lawyers are prohibited by the disciplinary rules from soliciting buyers in person, they cannot request another to do in their stead.
This situation was brought to Bar Counsel’s attention by counsel for one of the brokers. No consumer complained. The respondents accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATION:
Declining or Terminating Representation
[Mass. R. Prof. C. 1.16(a)(3)]
SUMMARY:
The respondent represented a client with respect to her attempt to collect child support from the father of her child.
In May of 1998, the client wrote to the respondent to discharge him, and asked that he withdraw from all pending court matters.
Three days later, the respondent wrote a letter to the client in which he stated that upon receipt of the outstanding balance of his fee, he would withdraw his appearance in the Probate Court.
Two days later, the client sent the respondent a partial payment of the fee, stating that she disputed the remainder of the fee the respondent claimed was due.
The respondent wrote back to the client threatening to pursue court action if the client did not pay the remainder of his bill. The respondent did not withdraw his appearance.
In October of 1998, the client went to the Probate Court to file a pro se contempt action. At this time she learned that the respondent had not yet withdrawn as counsel. The client filed a grievance with the Office of the Bar Counsel, which requested that the respondent file his withdrawal. The respondent thereupon notified the Probate Court of his withdrawal.
By failing to withdraw his appearance for six months after his client terminated his services and requested his withdrawal, and by attempting to secure the payment of his fee by refusing to file his withdrawal until his fee was paid, the respondent violated Massachusetts Rule of Professional Conduct 1.16(a)(3).
The respondent, who was admitted to practice in 1967 and had received no prior discipline, received an admonition for his conduct.
CLASSIFICATIONS:
Commingling Trust or Escrow Funds
[DR 9-102(A)]
IOLTA Violation
[DR 9-102(C)]
SUMMARY:
The respondent withheld rent in connection with a dispute with his landlord regarding the condition of his house. Having informed the landlord he intended to do so, he placed the withheld rent in his IOLTA account during several months. No other funds were placed in this account during the period in question. When the lease was about to expire, and without obtaining the landlord’s consent to do so, he withdrew the rent moneys from his IOLTA account for his own use.
In explaining his conduct the respondent took the position that he had no obligation to place withheld rents in an escrow account, that he had no fiduciary obligation to the landlord, that the escrow was for his own benefit not for that of the landlord, and that he had no obligation to notify the landlord when he removed the funds from the account.
Regardless of whether the respondent had any obligation to escrow the rents, the funds did not belong in his IOLTA account. If these funds were solely for the respondent’s own benefit, they could not be deposited to his IOLTA account because they were personal rather than fiduciary funds. By placing them in his IOLTA account he was commingling. If these funds were a true escrow in which both he and the landlord had an interest, they should have been placed in a separate interest-bearing account, rather than the IOLTA account, since the amount in question was more than nominal and was to be held for more than a short period of time. In addition, in those circumstances he would have had to obtain the landlord’s consent to their removal. His conduct in this matter violated Canon Nine, DR 9-102(A) and (C).
The respondent received an admonition for his conduct in this matter.
CLASSIFICATIONS:
Handling Legal Matter When Not Competent
[DR 6-101(A)(1)]
Handling Legal Matter Without Adequate Preparation
[DR 6-101(A)(2)]
Neglecting a Legal Matter
[DR 6-101(A)(3)]
SUMMARY:
On June 9, 1994 the respondent as counsel to the named executor filed a petition in Probate Court for administration of the will of a Massachusetts decedent. The estate was simple, consisting primarily of cash in a safe deposit box and bank accounts. The total estimated value of the estate was approximately $115,000. The will made eight specific and equal bequests.
On June 24, 1994 the respondent wrote to the legatees under the will and informed each of his intention to complete an inventory and make substantial partial distributions on or before September 14, 1994. The respondent did not transmit any account or partial distributions prior to September 14, 1994. After receipt of inquiries from at least two of the legatees, on November 28, 1994 the respondent wrote and stated that a $10,000 partial distribution would be made by December 15, 1994. When this too was not done and after receipt of more protests, on February 13, 1995 the respondent made eight $10,000 partial distributions. The same process then repeated with respect to the second set of partial distributions. On December 4, 1996, after more written and oral protests from the legatees, the respondent transmitted a second set of partial distributions in the amount of $4,500 each. The respondent also indicated his intent to finalize the estate by January 1997. At no time between June 24, 1994 and December 4, 1996 did the respondent return the inventory to the Probate Court or file annual accounts.
On November 3, 1996 one of the legatees, a resident of Scotland, died and her daughter made demand for her mother’s share of the estate. In late December 1996 the daughter provided to the respondent the information that he had requested proving that she was entitled to her mother’s share, and in March 1997 the respondent orally told the daughter that she would promptly receive her mother’s share of the distribution that the other legatees had received in December 1996. On May 12, 1997 the daughter wrote to the respondent and protested the delay. On July 23, 1997 the respondent finally made the $4500 distribution to the daughter.
Contrary to his promise, the respondent did not finalize the estate by January 1997 and in March and April, 1998 two of the legatees filed a complaint with Bar Counsel. The respondent retained counsel and the estate was finalized by early June 1998. The finalization of the estate included filing an estate tax return (no estate tax due), obtaining and filing an estate tax closing letter, filing fiduciary tax returns for each year of administration, filing the inventory, filing a first and final account with assents and making final distributions. Final distributions of $932.67 each were made on June 8, 1998. Bar Counsel’s review of the maintenance of the estate account showed no irregularities beyond the delays in making distribution.
The respondent’s neglect (prior to January 1, 1998) of a legal matter entrusted to him was in violation of Canon Six, DR 6-101(A)(3).
In a second unrelated matter, the respondent neglected a federal civil case, resulting in the dismissal of his client’s claim. On November 11, 1986 the client retained the respondent pursuant to a written contingent fee agreement. The client alleged that she was entitled to $5000 in life insurance benefits under a group plan of insurance offered by her deceased husband’s employer. On July 6, 1988 the respondent filed a civil complaint in state court on behalf of the client in her capacity as administrator against her deceased husband’s employer and the life insurance company. The respondent did not effectuate service of process until May 1990. Upon receipt of service, on June 12, 1990, both defendants filed a joint removal of the action to the U.S. District Court, District of Massachusetts. Removal was proper because the life insurance plan was regulated by ERISA (29 U.S.C. § 1132(a)(3)(b)(ii) over which the federal courts had exclusive jurisdiction. On June 19, 1990 the defendants filed their answers in the federal court.
On August 13, 1991 the Court entered on the docket notice of intent to dismiss within thirty days for failure to prosecute. On September 12, 1991 the respondent filed an affidavit in opposition to dismissal. However, it was the obligation of the respondent to take some action to move the case forward. The respondent was unfamiliar with federal procedure and did not consult with more experienced counsel. On September 4, 1992 the court entered on the docket the notation "case closed". Under court rule, the closing of the case is without prejudice. The respondent did not receive notification that the case had been closed but admits that he did not check the docket again until July 1995 because he was still waiting for a trial date. The respondent claims that, when he checked the docket in 1995, he did not see a docket entry that the case had been closed and that he believed the case was still pending.
The client filed her complaint with Bar Counsel in March of 1998 believing that the case was still active. On May 6, 1998 the respondent filed a motion to re-open and remand to state court. The motion was denied.
The respondent’s neglect, inadequate preparation and handling a matter that he was not competent to handle was in violation of Canon Six, DR 6-101(A)(1),(2) and (3). In mitigation, the respondent paid the client the value of her claim in May 1998 and she is satisfied.
The respondent has been a member of the Bar since 1957 with no prior discipline. He is now semi-retired. He accordingly received an admonition for the above misconduct.
CLASSIFICATIONS:
Notice of Dishonored Check
[Mass. R. Prof. C. 1.15(f)]
Commingling Clients’ Funds with Lawyer’s Funds
[Mass. R. Prof. C. 1.15(a)]
Failure to Maintain Proper Records of Client’s Property
[Mass. R. Prof. C. 1.15(a)]
SUMMARY:
This matter came to Bar Counsel’s attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account. Although the deficiency was only a few hundred dollars, a review of the respondent’s trust account records showed various mistakes that had gone undetected. On occasion checks for business expenses or advances of filings fees were written from the trust account that should have been written from the operating account. At least one check was deposited to the operating account that should have been deposited to the trust account. The respondent did not maintain individual ledgers for client matters and, in at least one personal injury case, could not reconcile receipts and disbursements. The respondent also did not reconcile the account adequately each month and instead relied upon the bank to tell him what the balance was.
The respondent’s conduct in this matter constituted commingling and inadequate recordkeeping, in violation of Mass. R. Prof. C. 1.15(a). In mitigation, the respondent is a solo practitioner with no prior discipline. He now understands his errors, has received training in trust accounting, and has taken corrective measures. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATIONS:
Failing to seek Client’s Lawful Objectives
[Mass. R. Prof. C. 1.2(a)]
Conflict Directly Adverse to Another Client
[Mass. R. Prof. C. 1.7(a)]
SUMMARY:
Without the client’s knowledge or consent the respondent added a clause to a second mortgage, from the client to her stepfather, which the client had already executed. By this clause the client’s previously recorded declaration of homestead was subordinated to the mortgage.
The client, stepdaughter of a longtime client of the respondent, owed money to her mother and stepfather. Her suit against a public utility had resulted in a defendant’s verdict, and the defendant sought costs. In order to protect the parents’ interest, the client asked the respondent to prepare a mortgage to her stepfather. At the respondent’s suggestion, the client also executed a declaration of homestead, M.G.L. c. 188. The client executed both documents on the same day, but directed the respondent to record the declaration of homestead only. Sometime thereafter the client directed the respondent to record the mortgage. Without consulting the client, before recording the mortgage the respondent added to the mortgage the phrase, "I hereby subordinate my right of homestead to this mortgage only."
Soon after the client and her stepfather had a falling out. When the client learned that the subordination language had been added, she complained to Bar Counsel. In connection with disposition of this matter the respondent prepared an affidavit for recording at the Registry of Deeds setting forth the circumstances under which the subordination language was inserted and acknowledging that he was not authorized to insert the language. In addition, the stepfather is willing to discharge the existing mortgage and substitute one which contains no subordination language. However, the client will now accept no resolution short of unconditional discharge of the existing mortgage.
At the time in question the client’s home had a fair market value of at most $90,000, encumbered by a purchase money mortgage with a balance of approximately $50,000. The respondent’s assumptions about the client’s intentions were logical, since a second mortgage subordinate to the homestead in these circumstances is not worth much.
Nevertheless, whatever the respondent may have assumed about the client’s intentions, he did not obtain her explicit permission to add the subordination clause. By adding unauthorized language to a mortgage by which a Declaration of Homestead protecting one client’s interest was subordinated to a later-recorded mortgage which protected the interests of another client, the respondent violated Mass. R. Prof. C. 1.2(a) and 1.7(a).
In mitigation, the respondent has since done what he can to correct the problem, including preparing his own affidavit and obtaining the stepfather’s agreement to a mortgage which does not contain the subordination language. The respondent carries malpractice insurance with adequate limits, should the client bring a claim against him.
The respondent, a long-time practitioner with no prior discipline, received an admonition for his conduct in this matter.
CLASSIFICATIONS:
Withdrawal without Refunding Fee
[DR 2-110(A)(3)]
Handling Legal Matter without Adequate Preparation
[DR 6-101(A)(2)]
Neglecting a Legal Matter
[DR 6-101(A)(3)]
Failure to Represent a Client Zealously
[DR 7-101(A)(1)(2)]
Prejudicing/Damaging Client During Representation
[DR 7-101(A)(3)]
Failure to Cooperate with Bar Discipline Investigation
[SJC Rule 4:01, § 3]
SUMMARY:
The respondent received an admonition for her conduct in connection with two matters.
In the first matter, the respondent did not refund the unearned portion of a retainer until after the client complained to Bar Counsel in 1997. Her conduct in that respect violated Canon Two, DR 2-110(A)(3).
In the second matter, the respondent failed to have the client’s case reinstated after it was dismissed in 1996 for failure to answer interrogatories. The statute of limitations had already expired when the case was dismissed, and it was not possible to refile the claim. The client had been seriously injured in a motor vehicle accident, and the respondent had expected to obtain the policy limits for the client.
The respondent, who did not carry malpractice insurance, agreed to pay the client from her own funds for the amount she would have received had the case settled for the motor vehicle insurance policy limits.
The respondent’s conduct in the second matter violated Canon Six, DR 6-101(A)(2) and (3) and Canon Seven, DR 7-101(A)(1)(2) and (3).
The respondent did not cooperate with Bar Counsel’s investigation. She did not respond to Bar Counsel’s inquiries in the first matter until she appeared under subpoena, and did not timely respond to Bar Counsel’s inquiries in the second matter, in violation of Supreme Judicial Court Rule 4:01, § 3.
At the time of the matters complained of, the respondent was in the process of leaving private practice because of her numerous family obligations. She was also coping with difficult family problems, including the illnesses and death of her mother, the relocation of her father, and the serious illness of her youngest child. She has now voluntarily assumed inactive status.
The respondent’s misconduct occurred prior to the decision of the Board of Bar Overseers in Matter of Kane, Public Reprimand No. 97-15, 13 Mass. Att’y Disc. R. 321 (1997) setting prospective standards for discipline in neglect cases. Accordingly, the respondent received an admonition for her conduct. The admonition was conditioned on her agreement to accept conditions of probation established at such time as she seeks to resume active practice.
CLASSIFICATIONS:
Failure to Comply with Supreme Judicial Court Rule 3:05 Regarding Contingent Fee Arrangements
[DR 2-106(C)]
Neglect of a Legal Matter
[DR 6-101(A)(3)]
Failure to Maintain Proper Records of Client’s Property
[DR 9-102(B)(3)]
Handling a Legal Matter Without Adequate Preparation
[Mass. R. Prof. C. 1.1]
Failing to Act Diligently
[Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client
[Mass. R. Prof. C. 1.4]
SUMMARY:
In January of 1996, a client retained the respondent to represent the client and his wife in filing a Chapter 7 bankruptcy petition. The client also retained the respondent to represent him in a personal injury matter resulting from a January 13, 1996 accident in which the client as a pedestrian was struck by an automobile.
The client paid the respondent $500.00 to handle the bankruptcy matter. On May 14, 1996, the respondent made a preliminary bankruptcy filing on behalf of the client and his wife. However, when the respondent failed to file completed schedules or financial statements on behalf of his clients, the bankruptcy matter was dismissed.
The respondent failed to inform the client that the bankruptcy petition had been dismissed. Over the next year and a half, the respondent made limited efforts to obtain updated financial information from his client and prepared a modified petition. However, the respondent failed to send the modified petition to his client to be reviewed, or to otherwise communicate adequately with his client. The respondent also failed to retain any records of his telephone or other contacts with the client or the client’s creditors, or any of the documentation he used to prepare the petition.
With respect to the personal injury action, the respondent failed to memorialize the contingency fee agreement with the client in writing. The respondent had preliminary conversations with the driver’s insurance company, but failed to aggressively pursue a settlement of the matter. In the late fall of 1997, the client asked the respondent to forward his file to successor counsel. The respondent complied with this request, and successor counsel filed suit within the statute of limitations period.
The respondent’s neglect of his client’s legal matters and failure to communicate adequately with his client violated Canon Six, DR 6-101(A)(3) as to conduct occurring prior to January 1, 1998, and Massachusetts Rules of Professional Conduct 1.1, 1.3, and 1.4 as to conduct occurring after January 1, 1998.
By failing to retain documents in his file concerning his client’s bankruptcy matter, the respondent violated Canon Nine, DR 9-102(B)(3).
By failing to memorialize his contingent fee agreement with the client concerning his personal injury matter, the respondent violated Canon Two, DR 2-106(C).
In mitigation, the respondent experienced serious medical problems during the period in question. These problems required an extended convalescence, during which time the respondent was away from his office. The respondent is a sole practitioner, and relied on other lawyers to cover his practice during his absence. In February of 1998 the respondent underwent surgery and began a new drug therapy, which has since stabilized his condition.
In further mitigation, the respondent returned the full amount of his client’s retainer for the bankruptcy matter.
The respondent was admitted to practice in 1989 and had received no prior discipline. He received an admonition for his conduct, on the condition that he attend a continuing legal education course designated by Bar Counsel.
CLASSIFICATIONS:
Conduct Prejudicial to the Administration of Justice
[DR 1-102(A)(5)]
Conduct Adversely Reflecting on Fitness to Practice
[DR 1-102(A)(6)]
SUMMARY:
Bar Counsel filed a petition for discipline against the respondent after a court issued a capias for his arrest for failing to obey an order to pay a stenographer's bill. A divided hearing committee recommended that the petition be dismissed. Bar Counsel appealed. The parties having waived oral argument, see Rules of the Board of Bar Overseers, Section 3.50(b), the Board considered the appeal on the papers at its February 8 and March 8, 1999 meetings. For the reasons discussed below, we allow the appeal and order an admonition.
On May 23, 1995, the respondent attended the deposition of two of his clients at his own office. On June 5, 1995, the stenographer sent him a copy of the deposition transcript and a bill for $167. The respondent made no reply. She sent him an overdue notice, to which he also failed to respond. When she telephoned him, he told her he would not pay for the transcript because he claimed he had not ordered a copy. He did not return the transcript to her.
On October 10, 1995, after additional bills prompted no response, the stenographer filed a small claims action to collect the $167. The respondent appeared in court on the return date. There the parties entered into a written settlement agreement under which the respondent promised to provide at least $500 of work to the stenographer over four months or pay her $181 if he did not. The settlement agreement was then entered as an order of the court and scheduled for a review call on April 2, 1996. The respondent was aware that failure to abide by the agreement could result in a finding of contempt or issuance of a capias.
The respondent had no contact with the stenographer before the April 2, 1996 hearing, and he provided her no work and paid her no money. When he also failed to appear for the hearing, the court entered a default judgment against him in the amount of $181 and issued a notice to show cause why he should not be held in contempt. The date of the show cause hearing was set for June 4, 1996. The docket sheet indicates that notice of the default was mailed to both parties, and the respondent was served in hand with a copy of the notice to show cause.
The respondent failed to appear for the show cause hearing on June 4, 1996. The court then issued a capias for his arrest. On June 26, 1996, the respondent received a telephone call from a constable informing him of the capias. On that same date he sent the stenographer a check in the amount of $260.16, which represented the full amount of the judgment plus the additional costs of service.
After making the findings summarized above, the hearing committee split on the conclusions of law to be drawn from the findings. The two lawyer members recommended dismissal after rejecting Bar Counsel's contention that the respondent's conduct violated Canon One, DR 1-102(A)(5) and (6) (proscribing conduct prejudicial to the administration of justice or adversely reflecting on one's fitness to practice law): The lay member dissented, recommending an admonition.
We agree with the lay member. The respondent's course of conduct, culminating in the issuance of a capias for his arrest, violated DR 1-102(A)(5) and (6) because it "undermine[d] the legitimacy of the judicial processes." Matter of the Discipline of Two Attorneys (Two Attorneys), 421 Mass. 619, 628, 12 Mass. Att'y Disc. R. 581, 592 (1996). As a lawyer, the respondent is an office of the court. Once a court entered an order commanding him to appear, he could not willfully ignore it, as he did here.
Relying on the Two Attorneys case just cited, the hearing committee's majority reasoned that the cited rules were not violated because they may be traduced only by "conduct flagrantly violative of accepted professional norms." See 421 Mass. at 628, 12 Mass. Att'y Disc. R. at 591. The Court made that statement, however, in deciding whether to apply DR 1-102(A)(5) to a course of conduct---principally involving a conflict of interest and the misuse of client secrets---that had only an attenuated link to judicial process. Here the core misconduct giving rise to the charge was the flouting of a court order, an act that by its very nature "undermine[d] the legitimacy of the judicial processes." 421 Mass. at 628, 12 Mass. Att'y Disc. R. at 592.
We also reject the majority's implicit premise that the conduct here did not flagrantly violate "accepted professional norms." The respondent participated in the entry of an order based on a settlement he agreed to, failed to abide by the order, was defaulted when the case was called for review as previously scheduled, and then failed to appear for the show cause hearing despite in-hand service of the order to appear. A capias issued for his arrest as a consequence. Such conduct has traditionally called for discipline precisely because it does violate accepted norms of professional conduct. See AD-96-31, 12 Mass. Att'y Disc. R. 650 (1996) (Canon One violated by failure to pay judgment until after issuance of capias); AD-93-39, 9 Mass. Att'y Disc. R. 476 (1993) (same).
The majority would distinguish the former admonition on the ground that the lawyer there did not pay the judgment until four months after the capias issued, but the case summary makes clear that the lawyer was admonished not for the time elapsed but "for failure to obey a lawful court order until after a capias issued…." 12 Mass. Att'y Disc. R. at 650. As to the latter admonition, the majority notes that there was an additional count involving the handling of client funds. Whether there was one count or two might have bearing on the sanction to be imposed, but it in no way disturbs the legal conclusion that the lawyer had "failed to obey a lawful court order, and failed to pay the judgment of the small claims court until a capias was issued, in violation of Canon One, DR 1-102(A)(5) and (6)." 9 Mass. Att'y Disc. R. at 477.
The majority's final objection, and the sentiment that appears to drive their decision to recommend dismissal, is their belief that "the disciplinary rules should not be used as a method for coercing debt collection." Hearing Committee Report at 5. We do not take issue with that proposition as far as it goes. Grievances brought in an effort to coerce the payment of personal debts are summarily dismissed. See Rosenfeld, Myths and Realities, MBA LAWYERS J. (July/August 1998), at 2, col. 4. Stenographer-creditors stand on a somewhat different footing, see MBA Ethics Op. No. 74-9, but even in such a case it is Bar Counsel's policy to call the lawyer and suggest that the matter be resolved. Complaints are opened only if the matter remains unresolved after a reasonable period of time. See Rosenfeld, supra, at 2, col. 4. In any event, the Board seeks to impose discipline only where, as here, a court has had to issue a capias warrant to compel the lawyer's obedience to its commands. In other words, discipline is warranted by the affront to the authority of the court, not by any injury to the creditor.
In fact, this case illustrates the point. The Board's records indicate that the stenographer did not file her grievance with the Office of Bar Counsel until after the capias had issued, and the respondent himself insists that he paid the judgment before learning of the grievance. See Respondent's Proposed Findings of Fact 49. It is apparent, therefore, that the stenographer did not seek Bar Counsel's help until after the rule had been violated and that the disciplinary process had no impact on her efforts to collect the debt. Far from being a cudgel wielded by a manipulative creditor, the disciplinary process has been used to admonish a lawyer for his cavalier disregard for the orders of the court system he was sworn to uphold. Such conduct warrants discipline.
Conclusion
For all of the foregoing reasons, we allow Bar Counsel's appeal. We adopt and incorporate by reference the findings of fact made by the hearing committee but modify its conclusions of law by finding that the respondent violated Canon One, DR 1-102(A)(5) and (6). We order that the respondent by admonished for his misconduct.
Respectfully submitted,
Mitchell H. Kaplan
Secretary
Board of Bar Overseers
Approved: March 8, 1999
CLASSIFICATION:
Engaging in conduct that adversely reflects on the lawyer’s fitness to practice law
[Mass. R. Prof. C. 8.4(h)].
SUMMARY:
The respondent lawyer acted as an advisor to a group of middle school students in their mock trial. On one occasion while working with the students, the respondent and a male student went into the school bathroom at the same time. The respondent made some sexually suggestive and improper remarks to the student. The student was upset. The respondent and the student left the bathroom and went to a room where the student rehearsed his presentation and they then returned to the group. The other students noticed that their friend was upset and he reported what had occurred to them. The matter subsequently was reported to the student’s parents, the school, and the law enforcement authorities. The matter was not prosecuted. The respondent’s conduct in making sexually suggestive and improper remarks to a middle school student is in violation of Mass. R. Prof. C. 8.4(h), engaging in conduct that adversely reflects on the lawyer’s fitness to practice law. The lawyer was given an admonition on the condition that he undergo therapy and not participate in any school programs as a legal advisor.
CLASSIFICATIONS:
Neglect of a Legal Matter
[DR 6-101(A)(3)]
Failing to Act Diligently
[Mass. R. Prof. C. 1.3]
Failure to Deliver Funds or Property to a Client or Third Person
[Mass. R. Prof. C. 1.15(b)]
SUMMARY:
The respondent served as the trustee for a trust established to hold the proceeds from a tort suit brought on behalf a victim of a fire.
On April 22, 1997, the Essex Probate Court allowed the respondent’s First Account covering the period from April 4, 1991 until September 30, 1996. At that time the respondent reported that only $2,004.77 remained in the trust.
In October of 1997, the respondent filed a motion with the Essex Probate Court seeking direction from the Court as to the distribution of the remaining trust assets. By order dated October 20, 1997, the Essex Probate Court directed the respondent to distribute the remaining trust property to the guardian for the trust’s beneficiary.
Despite several requests from the guardian, the respondent failed to distribute the remaining trust funds until November 20, 1998, after the guardian had filed a grievance with the Office of Bar Counsel. At that time, the respondent paid all of the trust funds to the guardian. A review of the trust account records showed no misuse of the trust funds during this period by the respondent.
The respondent claimed that his delay in distributing the funds was due to the need to prepare and file a final account. The respondent subsequently filed his final account with the Probate Court in February of 1999, with the assent of the guardian for the beneficiary.
By failing to distribute the trust property and to prepare the final account in a timely manner, the respondent neglected a legal matter in violation of Canon Six, DR 6-101(A)(3), as to conduct occurring prior to January 1, 1998, and Mass. R. Prof. C. 1.3, as to conduct occurring on or after January 1, 1998. The respondent also violated Mass. R. Prof. C. 1.15(b); which states that a lawyer "shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive."
The respondent, who was admitted to practice in 1978 and had received no prior discipline, received an admonition for his conduct.
CLASSIFICATIONS:
Neglecting a Legal Matter
[DR 6-101(A)(3)]
Failing to Act Diligently
[Mass. R. Prof. C. 1.3]
SUMMARY:
The respondent represented a client in the sale of her home and the purchase of a new home in May of 1989. The respondent certified the title for the newly purchased property despite the existence of two orders of condition placed on the property by the local conservation commission. The respondent also did not disclose the existing orders of condition in the application she prepared for her client’s owner’s title insurance policy.
In October of 1994 the client tried to refinance her mortgage loan, and the bank’s attorney discovered the orders of condition on the property. The title insurer denied coverage based on the undisclosed orders of condition. The bank’s attorney agreed to go forward with the refinancing after the client signed an agreement to resolve the title issue through the respondent within a reasonable period of time.
The client wrote to the respondent on December 12, 1995 to notify her of the title problem, and to request her assistance in curing the title defect. After the respondent learned that the original sellers of the property would not help to resolve the problem, she wrote to the client on April 23, 1996 that she had contacted a land surveyor to prepare a plan which was necessary to obtain the release of the orders of condition on the property.
On November 16, 1997, one year and seven months later, the client wrote to the respondent to inquire as to the status of the matter and to question why the respondent had not returned her telephone calls. The respondent did not reply to this letter, or to subsequent inquiries from the client.
On July 21, 1998, the client filed a grievance with Bar Counsel. In her response, the respondent reported that the land surveyor had completed the field work on the property as of September 24, 1998. The respondent admitted that she had not followed up with the surveyor between 1996 and 1998. The release forms were finally received in January of 1999.
By failing to obtain the release of the orders of conditions on the complainant’s property for over three years, and by failing to respond to the complainant’s inquiries for over one year, the respondent neglected her client and a legal matter entrusted to her in violation of Canon Six, DR 6-101(A)(3) and Rule 1.3 of the Massachusetts Rules of Professional Conduct (as to conduct occurring on or after January 1, 1998).
The respondent, who was admitted to practice in 1981 and had no prior disciplinary history, received an admonition for her conduct, on the condition that she attend a CLE course designated by Bar Counsel.
CLASSIFICATIONS:
Neglecting a Legal Matter
[DR 6-101(A)(3)]
Failing to Communicate Adequately with Client
[Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee
[Mass. R. Prof. C. 1.16(d)]
SUMMARY:
In February 1997, the respondent was retained to probate an estate. The decedent was a friend of the client and the client was named as executrix, and was the beneficiary, under the will. The client paid the respondent $2500 from her own funds.
The respondent did file the will and the petition for probate and request the issuance of a citation, but he did not follow through to obtain the appointment of the executrix and thus did not prepare or file an inventory or account or obtain the estate tax release. In late 1997, the respondent referred the case to successor counsel. The client discharged the respondent and he filed his withdrawal in February 1998. Successor counsel has since obtained the client’s appointment as executrix and completed the estate.
After the respondent filed his withdrawal, the client twice wrote to him requesting an accounting of the $2500 retainer and a refund of the unearned portion. He did not reply to her inquiries. The client filed a complaint with Bar Counsel in May 1998. In August 1998, the respondent provided Bar Counsel with an accounting of the fee, and in February 1999, the respondent refunded $1800.
The respondent’s conduct in this matter constitutes neglect and inadequate communication, in violation of Canon Six, DR 6-101(A)(3) and Mass. R. Prof. C. 1.4, and failure to refund an unearned fee, in violation of Mass. R. Prof. C. 1.16(d). He has been a member of the Bar since 1977, with no prior discipline. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATIONS:
Failure to Comply with Supreme Judicial Court Rule 3:05 Regarding Contingent Fee Arrangements
[DR 2-106(C)]
Neglect of a Legal Matter
[DR 6-101(A)(3)]
Failing to Communicate Adequately with Client
[Mass. R. Prof. C. 1.4]
SUMMARY:
On April 4, 1991, the client slipped in a local supermarket and bumped her forehead and injured her knee. The complainant was hospitalized and incurred medical expenses of approximately $7,000.00. A few days after the accident, the client’s husband contacted the respondent who had represented them in the past on another legal matter. The respondent discussed the case with the client and viewed the scene of the accident. The respondent agreed to take the case on a contingency fee basis, but did not prepare a written contingent fee agreement for the client to sign.
By letter dated April 13, 1991, the respondent notified the store’s insurance company of his client’s claim. Thereafter, the respondent did no further significant legal work on the matter and allowed the statute of limitations to run without filing suit.
During the period in question, the respondent closed his legal office and began to work on a nearly full-time basis as a staff attorney. The respondent failed to respond to his client’s inquiries about the matter, or to notify her in writing of his decision to close his legal office.
In mitigation, the respondent has agreed to compensate the client for her injuries.
By failing to file suit within the statute of limitations period, the respondent neglected a legal matter entrusted to him in violation of Canon Six, DR 6-101(A)(3). By failing to contact his client in response to her inquiries or to advise her about the status of her case and about his decision to close his office, the respondent neglected his client and failed to communicate adequately with her in violation of Canon Six, DR 6-101(A)(3) and Massachusetts Rule of Professional Conduct 1.4 (as to conduct occurring on or after January 1, 1998). By failing to prepare a written contingency fee agreement, the respondent violated Canon Two, DR 2-106(C).
The respondent, who was admitted to practice in 1956 and had no disciplinary history, received an admonition for his conduct.
CLASSIFICATIONS:
Dishonored Check on Trust Account
[Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Recordkeeping
[Mass. R. Prof. C. 1.15(a)]
Improper Fee-sharing with Nonlawyer
[Mass. R. Prof. C. 5.4(a)]
SUMMARY:
This matter came to Bar Counsel’s attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account. The check in question was payable to the respondent in the amount of $750 and was returned for insufficient funds.
Review of the respondent’s financial records showed several problems with the maintenance of the IOLTA account. First, the respondent did not always withdraw fees in full as earned, including his fees on settlements of contingent fee cases. Rather, he withdrew fees piecemeal as needed. Second, on at least one occasion in August 1998, a few weeks prior to writing the check that was dishonored, the respondent inadvertently deposited personal funds to his IOLTA account, rather than his operating account. Instead of transferring the funds when he realized the error, he withdrew the funds in increments. He then miscalculated the balance and paid himself more money than was available, causing one check to himself to be returned unpaid. The respondent’s conduct constituted commingling of trust funds with personal or business funds and inadequate recordkeeping, in violation of Mass. R. Prof. C. 1.15(a).
In addition, the respondent on several occasions paid referral fees to nonlawyers from his own fees on contingency cases, in violation of Mass. R. Prof. C. 5.4(a).
The respondent has been a member of the Bar since 1964 with no prior disciplinary history. He has discontinued the improper practices described above and made appropriate changes to his recordkeeping. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping
[Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements
[Mass. R. Prof. C. 1.15(d)(2)]
SUMMARY:
This matter came to Bar Counsel’s attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of a notice of dishonored check drawn on the respondent’s IOLTA account. The check that was dishonored was for $1000 and payment would have caused an overdraft of $18.
The specific cause of the dishonored check was a deposited item that was returned on account of insufficient funds after the check was written. Alone, these facts would not warrant disciplinary action. However, a review of the records of the respondent’s trust account showed that the respondent did not withdraw earned fees from the trust account as earned. He instead withdrew fees in increments as needed, including ATM withdrawals. The respondent also paid personal or business expenses directly from the trust account. These actions constitute commingling of business and personal funds and inadequate recordkeeping, in violation of Mass. R. Prof. C. 1.15(a) and Mass. R. Prof. C. 1.15(d)(2).
In mitigation, the respondent is a solo practitioner with no prior disciplinary history. He received an admonition for the above violations, conditioned upon attendance at a CLE program designated by Bar Counsel and receiving training in trust accounting.
CLASSIFICATIONS:
Handling Legal Matter Without Adequate Preparation
[DR 6-101(A)(2)]
Neglecting a Legal Matter
[DR 6-101(A)(3)]
IOLTA Violation
[DR 9-102(C)]
Handling Legal Matter When Not Competent or Without Adequate Preparation
[Mass. R. Prof. C. 1.1]
Failing to Act Diligently
[Mass. R. Prof. C. 1.3]
SUMMARY:
The respondent received an admonition for neglecting an estate for which she was the attorney. The executor, who controlled most of the estate funds, was a difficult client who made expenditures about which two of the charitable beneficiaries had serious questions.
Although the bulk of distributions were timely made, the respondent did not prepare a first and final account for filing by the executor for more than four years after distributions were made, took no action in response to two court orders issued on petition of the charities requiring the executor to render an account, and did not timely file a final estate income tax return. In addition, the respondent placed $139,000 of estate funds in her IOLTA account for six months, rather than in a separate interest bearing account.
By failing to file the final account of an estate for more than four years after distributions were made, and despite two court orders to the executor to render accounts, and by failing to file an estate income tax return until more than four years after the return was due, the respondent violated Canon Six, DR 6-101(A)(2) and (3) and Mass. R. Prof. C. 1.1 and 1.3. By failing to place in a separate interest-bearing account $139,000 held for six months, an amount more than nominal in amount held for more than a short period of time, the respondent violated Canon Nine, DR 9-102(C). In connection with the disposition the respondent agreed to attend a CLE course designated by Bar Counsel and to pay any penalties assessed for late filing of the estate income tax return.
CLASSIFICATION:
Failure to Cooperate with Bar Counsel/Board of Bar Overseers
[Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 § 3(b)]
SUMMARY:
In two unrelated matters, current clients of the respondent complained to Bar Counsel that the respondent had failed to return phone calls or otherwise to communicate with them. The respondent similarly did not reply to Bar Counsel’s inquiries, necessitating the issuance of subpoena to compel his appearance. In each case, the respondent thereafter resolved his differences with his client and satisfactorily concluded the representation. However, the respondent’s failure to cooperate with Bar Counsel was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 § 3(b). In aggravation, the respondent had a prior admonition for unrelated misconduct.
The respondent received an admonition for the above misconduct.
CLASSIFICATIONS:
Handling Legal Matter When Not Competent
[DR 6-101(A)(1)]
Handling Legal Matter Without Adequate Preparation
[DR 6-101(A)(2)]
Neglect of a Legal Matter
[DR 6-101(A)(3)]
Failure to Seek the Lawful Objectives of a Client
[DR 7-101(A)(1)]
Failure to Carry Out a Contract of Employment
[DR 7-101(A)(2)]
Conduct that is Prejudicial or Damaging to a Client
[DR 7-101(A)(3)]
SUMMARY:
The respondent agreed to represent the client in a claim against the MBTA arising from a December 1994 injury that occurred when the client attempted to board a bus and the bus driver accidentally closed the door on his arm. However, other than the initial claim letter written by the respondent in January 1995, the respondent did no work on the case and allowed the statute of limitations to expire in December 1996 without filing suit.
The respondent did not research and thus was unaware that the statute of limitations on claims against the MBTA was two years, not three years. In addition, although she claimed that the client was at times difficult to contact since at one point he was in custody in a New Hampshire jail and at another point he was homeless, her file contained letters from the client advising her of his whereabouts and urging her to pursue the matter. The respondent also claimed that the client did not want to file suit and wanted to settle the matter out of court, but she in fact made no attempts to settle the case or even to communicate with the MBTA after the initial claim letter.
The respondent’s lack of knowledge and experience regarding the this type of claim along with her failure to associate with more experienced counsel, her inadequate preparation, her neglect of both the client and the case, and her failure to pursue the client’s claim zealously was in violation of Canon Six, DR 6-101(A)(1), (2), (3), and Canon Seven, DR 7-101(A)(1), (2), (3).
The respondent received an admonition for the above-mentioned conduct conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATIONS:
Notice of Dishonored Check
[Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Recordkeeping
[Mass. R. Prof. C. 1.15(a)]
SUMMARY:
This matter came to Bar Counsel’s attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of dishonored check from the bank at which the respondents maintained their IOLTA account.
The respondents were partners in a law firm that acted as lenders’ counsel in real estate conveyances. The check in question was dated March 26, 1997 in the amount of $1000 and was payable to the attorney for a seller. Because the $1000 was to be held in escrow, the check was not actually presented for payment until September 1998, eighteen months later. By this time the law firm had dissolved and the IOLTA account had been closed in August 1998.
A review of the records of the IOLTA account showed that the balance in the account at the time it was closed was $86. Thus, the $1000 that should have paid the March 1997 check was no longer in the account when it was closed and was not transferred to a new trust account.
The cause of the deficiency was the following problem. The firm had a long-standing dispute with the bank over $3,352.56 in service charges levied against the IOLTA account between January and July of 1996. No firm funds were ever deposited to the IOLTA account to cover these charges. Eventually, the bank issued a partial credit for some of the charges. However, even net of this credit and other credits to the account, and of the account’s opening deposit of firm funds, the account at all times after July 1996, and until it was closed in August 1998, was not less than (approximately) $1100 short of funds. No checks were dishonored during this period only because there was a sufficient float.
The dispute with the bank over service charges was being handled by the firm’s bookkeeper. The respondents did not realize that funds needed to be deposited to the account to cover the unreimbursed charges. In addition, at the time that the account was closed in August 1998, neither the bookkeeper nor the respondents did a reconciliation adequate to call attention to the fact that the March 1997 check for $1000 was still outstanding and had not been replaced. The respondents’ conduct in these respects constituted inadequate record keeping, in violation of Canon Nine, DR 9-102(B)(3) and Mass. R. Prof. C. 1.15(a).
One of the respondents has been a member of the Bar since 1983, and the other since 1985, both with no prior discipline. They have made appropriate changes to their record keeping in their new firms. Each accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
CLASSIFICATIONS:
Failure to Maintain Complete Records of Clients’ Funds or Property
[DR 9-102(B) (3); MRPC 1.15(a)]
Failure to Make Timely Distribution of Client’s Funds
[DR 9-102(B) (4); MRPC 1.15(b)]
SUMMARY:
The respondent was escrow agent for $3,500 of sale proceeds placed in escrow to insure that a building contractor completed work on a house. The closing occurred on January 26, 1993, and on January 26, 1994, with the buyer’s approval, the respondent sent a check for $2160 to the builder’s attorney. A balance of $890.00 was left in the respondent’s IOLTA account and remained there until May 1998, when the respondent in response to the buyer’s inquiries, sent a check to her in that amount.
The respondent did not become aware that he still had the $890.00 in his IOLTA account until 1998 when the buyer contacted him. The respondent thought that