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Commonwealth of Massachusetts


Index of 1999 Admonitions


Disciplinary Rule Case Number

DR 1-102(A)(2)

99-17

DR 1-102(A)(4) 99-65

DR 1-102(A)(5)

99-25, 99-41, 99-43, 99-46, 99-54, 99-70, 99-73,

DR 1-102(A)(6)

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)

99-3, 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,
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, ß 3 99-2, 99-46, 99-56
S.J.C. Rule 3:05 99-24


ADMONITION NO. 99-1

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 Counselís attention as a result of receipt from the depository bank of a notice of dishonored check drawn on the respondentís 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 respondentís 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 respondentís 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.

ADMONITION NO. 99-2

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 clientís 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 defendantís willingness to settle for $12,000 (minus federal and state withholding, payroll and other taxes). In addition, the respondent repeated her understanding of the clientís directions, namely that the goal of settlement was to cover her attorneyís 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 respondentís 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 clientís 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.

ADMONITION NO. 99-3

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 respondentís 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 respondentís 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.

ADMONITION NO. 99-4

CLASSIFICATIONS:

Commingling Clients Funds with Lawyerís Funds

[DR 9-102(A) and Mass R Prof. C 1.15(a)]

Failure to Maintain Proper Records of Clientís 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 Counselís attention as the result of receipt of a notice from a bank of a dishonored check for $1,300.00 drawn on the respondentís 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 respondentís 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.

ADMONITION NO. 99-5

CLASSIFICATIONS:

Notice of Dishonored Check

[Mass. R. Prof. C. 1.15(f)]

Commingling Clientsí Funds with Lawyerís Funds

[Mass. R. Prof. C. 1.15(a)]

Failure to Maintain Proper Records of Clientís Property

[Mass. R. Prof. C. 1.15(a)]

SUMMARY:

This matter came to Bar Counselís 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 respondentís 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.

ADMONITION NO. 99-6

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 defendantís 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 clientís 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 defendantís revise and revoke motions have never been heard.

The likelihood of success in persuading a judge to allow the defendantís 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 womanís 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 plaintiffís 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 clientís new attorney and refunded the $750 retainer that her ex-husband had paid him. The clientís 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 defendantís 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 defendantís 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 defendantís 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 defendantís 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 respondentís 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 respondentís 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.

ADMONITION N0. 99-7

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 lawyersí 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 Johnís vehicle struck her vehicle, retained another lawyer in the respondentís 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 lawyerís 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 lawyerís attention so that Beth could be consulted.

During the two succeeding months, the other lawyer corresponded with insurance companies concerning Bethís 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 lawyerís 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 Bethís 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 Bethís 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 clientsí 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).

ADMONITION NO. 99-8

CLASSIFICATIONS:

Commingling Trust or Escrow Funds

[DR 9-102(A)]

Failure to Maintain Proper Records of Clientís Property

[DR 9-102(B)(3)]

SUMMARY:

This matter arises from Bar Counselís 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 respondentís 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 Counselís 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 respondentís 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.

ADMONITION NO. 99-9

CLASSIFICATION:

Conduct that Adversely Reflects on Oneís 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 defendantís counsel during a September 1997 deposition of the respondentís 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 attorneyís 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.

ADMONITION NO. 99-10

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 defendantís appointed counsel determined that it was in the defendantís 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 attorneyís recommendation regarding the criminal case. She was concerned that the defendantís 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 defendantís sister paid the respondent the $1,500 retainer.

The respondentís investigation consisted of reading the psychiatric reports that had been given to him by the defendantís sister and speaking with the defendant and his appointed counsel. The respondent also concluded that it was in the defendantís best interest to plead guilty. The respondent did not report his findings to the defendantís 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 defendantís 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 defendantís 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 defendantís public defender had previously negotiated.

The respondentís failure to inform the defendantís sister that he concurred with the appointed counselís analysis of the defendantís 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 defendantís 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.

ADMONITION NO. 99-11

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 clientís 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.

ADMONITION NO. 99-12

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 respondentís 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 Counselís 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 Counselís 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.

ADMONITION NO. 99-13

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 respondentís stepmother as executrix of his fatherís 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 stepmotherís 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 respondentís home telephone to the other attorneyís home telephone in the middle of the night. The respondentís 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 respondentís conduct thus constituted unauthorized practice of law in violation of Canon Three, DR 3-101(B).

ADMONITION NO. 99-14

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 decedentís 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 clientís 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 respondentís neglect, the respondent received an admonition for his conduct.

ADMONITION NO. 99-15

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 respondentís 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 clientís 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 respondentís 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, ß 9, as it incorporates G.L. c. 176D, ß 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 respondentís former client, through new counsel, filed a legal malpractice claim against the respondent. The matter was resolved without admission of liability.

The respondentís 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.

ADMONITION NO. 99-16

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 defendantís 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 defendantís 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 defendantís problems as being primarily alcohol-related.

In or around the end of February the defendantís mental condition further deteriorated. He was transferred from the jail to Bridgewater State Hospital pursuant to MGL Chapter 123ß18A. 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 Bridgewaterís evaluation of the defendant pursuant to ß18A. Although the respondent had some questions regarding the defendantís 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 defendantís 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 123ß15E. Upon the defendantís 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 Bridgewaterís 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 defendantís guilty plea, Bridgewater withdrew its petition to commit the defendant pursuant to ß18A. The defendant was then evaluated pursuant to ß15E. The ß15E 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 ß15E 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 respondentís expectations, Bridgewater petitioned to commit the defendant for an additional year. Counsel was appointed to represent the defendant on that petition, and the defendantís criminal cases were continued. The respondent withdrew as the defendantís attorney on January 8, 1997, and counsel was appointed to represent the defendant on the criminal charges as well. On January 29, 1997, the defendantís commitment to Bridgewater was extended until January 29, 1998.

The defendantís 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 respondentís conduct was in violation of Canon Six, DRís 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.

ADMONITION NO. 99-17

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 buyerís attorney. The flyer offers to negotiate the P&S for a fee of $195, which charge would be credited against the borrowerís 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 Counselís 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 Counselís 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.

ADMONITION NO. 99-18

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.

ADMONITION NO. 99-19

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 landlordís 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 respondentís 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 landlordís 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.

ADMONITION NO. 99-20

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 motherís 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 motherís share, and in March 1997 the respondent orally told the daughter that she would promptly receive her motherís 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 Counselís review of the maintenance of the estate account showed no irregularities beyond the delays in making distribution.

The respondentís 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 clientís 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 husbandís 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 husbandís 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. ß 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 respondentís 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.

ADMONITION NO. 99-21

CLASSIFICATIONS:

Notice of Dishonored Check

[Mass. R. Prof. C. 1.15(f)]

Commingling Clientsí Funds with Lawyerís Funds

[Mass. R. Prof. C. 1.15(a)]

Failure to Maintain Proper Records of Clientís Property

[Mass. R. Prof. C. 1.15(a)]

SUMMARY:

This matter came to Bar Counselís 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 respondentís 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 respondentís 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.

ADMONITION NO. 99-22

CLASSIFICATIONS:

Failing to seek Clientís 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 clientís 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 clientís 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 defendantís verdict, and the defendant sought costs. In order to protect the parentsí interest, the client asked the respondent to prepare a mortgage to her stepfather. At the respondentís 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 clientís 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 respondentís assumptions about the clientís 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 clientís 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 clientís 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 stepfatherís 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.

ADMONITION NO. 99-23

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, ß 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 clientís 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 respondentís 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 Counselís investigation. She did not respond to Bar Counselís inquiries in the first matter until she appeared under subpoena, and did not timely respond to Bar Counselís inquiries in the second matter, in violation of Supreme Judicial Court Rule 4:01, ß 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 respondentís misconduct occurred prior to the decision of the Board of Bar Overseers in Matter of Kane, Public Reprimand No. 97-15, 13 Mass. Attíy 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.

ADMONITION NO. 99-24

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 Clientís 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 clientís 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 driverís 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 respondentís neglect of his clientís 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 clientís 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 clientís 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.

ADMONITION NO. 99-25

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 issuedÖ." 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

ADMONITION NO. 99-26

CLASSIFICATION:

Engaging in conduct that adversely reflects on the lawyerís 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 studentís parents, the school, and the law enforcement authorities. The matter was not prosecuted. The respondentís 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 lawyerís 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.

ADMONITION NO. 99-27

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 respondentís 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 trustís 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.

ADMONITION NO. 99-28

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 clientís ownerís title insurance policy.

In October of 1994 the client tried to refinance her mortgage loan, and the bankís attorney discovered the orders of condition on the property. The title insurer denied coverage based on the undisclosed orders of condition. The bankís 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 complainantís property for over three years, and by failing to respond to the complainantís 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.

ADMONITION NO. 99-29

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 clientís 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 respondentís 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.

ADMONITION NO. 99-30

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 clientís 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 storeís insurance company of his clientís 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 clientís 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.

ADMONITION NO. 99-31

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 Counselís 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 respondentís 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 respondentís 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.

ADMONITION NO. 99-32

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 Counselís 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 respondentís 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 respondentís 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.

ADMONITION NO. 99-33

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.

ADMONITION NO. 99-34

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 ß 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 Counselís 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 respondentís failure to cooperate with Bar Counsel was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 ß 3(b). In aggravation, the respondent had a prior admonition for unrelated misconduct.

The respondent received an admonition for the above misconduct.

ADMONITION NO. 99-35

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 respondentís 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 clientís 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.

ADMONITION NO. 99-36

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 Counselís 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 lendersí 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 accountís 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 firmís 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 respondentsí 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.

ADMONITION NO. 99-37

CLASSIFICATIONS:

Failure to Maintain Complete Records of Clientsí Funds or Property

[DR 9-102(B) (3); MRPC 1.15(a)]

Failure to Make Timely Distribution of Clientís 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 buyerís approval, the respondent sent a check for $2160 to the builderís attorney. A balance of $890.00 was left in the respondentís IOLTA account and remained there until May 1998, when the respondent in response to the buyerís 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 he had already sent her the funds. His retention of the funds was clearly unintentional and the funds remained intact in the account throughout the five years that the respondent held them. The respondent, however, had had a duty to remit the funds owed the buyer in a timely manner. If the IOLTA account had been properly reconciled, the respondent would have been aware that she had not received the funds. The respondentís conduct was therefore in violation of Canon Nine, DR 9-102(B) (3) and (4), and its successor, Mass. R. Prof. C. 1.15 (a) and (b).

The respondent is now semi-retired and handles fewer conveyances. He also now reconciles his IOLTA account monthly. The respondent accordingly received an admonition for his conduct, conditioned upon attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-38

CLASSIFICATION:

Conflict of Interest

[Mass. Rules of Prof. Conduct 1.7(b)]

SUMMARY:

The respondent represented a defendant in a civil suit in district court. The defendant lost at trial and judgment for damages was awarded to the plaintiff in November, 1997. The client asked the respondent to appeal the judgment to the appellate division of the district court and the respondent did so.

The appellate brief was due on or about April 6, 1998. On or about March 28, 1998, the client called the respondentís office and left a message that he "would not pay"(presumably referring to past due bills and future work). The respondent completed the brief, filed it, and wrote to the client on April 6, 1998, advising him that he could not cease work as the brief was due and the clientís rights would have been prejudiced. The respondent also reminded the client that the bill for his services was overdue and that he expected payment soon.

The client did not make payment as requested and on or about April 14, 1998, the respondent filed a motion to withdraw from the case. The motion was not approved until May 14, 1998. On April 17, 1998, before the withdrawal was allowed, the respondent filed a separate civil suit against the client to collect the unpaid fees. The respondentís conduct in filing a civil suit against his client, while he was still counsel of record, was conduct in violation of Mass. R. of Prof. C. 1.7(b).

The respondent received an admonition for his conduct.

ADMONITION NO. 99-39

CLASSIFICATIONS:

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)]

Prejudicing/Damaging Client During Representation

[DR 7-101(A)(3)]

Handling Matter When Not Competent or 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:

The respondent was retained by the defendant in a criminal case and paid $2,500 in 1995 to pursue issues relating to a motion to revise and revoke the clientís sentence. The respondent did not, however, take the action needed. He also failed to provide the client with copies of documents from the clientís file that the client had requested.

Prior to hiring the respondent, the client had attempted on his own to pursue a motion to revise and revoke but was unsuccessful. The clerkís office would not accept the motion filed by the client. The client appealed the matter to the Supreme Judicial Court but could not write the brief that was required. He then hired the respondent to assist him in pursuing the matter. By the time the client hired the respondent, the client had been paroled and was living with his family in Florida.

The respondent filed his appearance in the matter and began to work on the matter by reviewing the information and materials sent to him by the client and reviewing the Superior Court file. After lengthy discussions with the Superior Court clerkís office, the respondent was able to convince the clerkís office that the client's motion should be accepted for filing. At this point, it was not necessary for the respondent to pursue the appeal in the S.J.C. He did, however, need to request a hearing to present the motion to revise and revoke to the trial court judge. The respondent did not follow up to get a hearing date.

After the complaint to Bar Counsel was filed, the respondent admitted his neglect and returned the file and fee paid to the client. The respondentís conduct constituted neglect of his clientís case in violation of Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7-101(A)(1), (2), (3), as well as Mass. R. Prof. C. 1.1, 1.3, 1.4. Since the client had already been released on parole, the harm to him was minimal. However, if successful, the motion to revise and revoke could have reduced the amount of time that the client was on parole and any accompanying probation supervision.

The respondent received an admonition for these violations, conditioned upon his attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-40

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 Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt in 1998 from a bank of a notice of dishonored check drawn on the respondentís IOLTA account. The account in question was denominated as an attorney trust account, but was in fact a personal account into which the respondent deposited his own funds and from which he paid personal expenses.

The respondent opened this trust account in 1995 when he was still in private practice. He left private practice to work for a corporation in 1996 and, since the account was already in existence, decided to use it for certain of his own obligations for which he wished to maintain a separate record. He has now closed the account.

The respondentís use of a personal account as a trust account violated Mass. R. Prof. C. 1.15(a). In aggravation, the respondent has a prior informal admonition from his private practice for delay in forwarding PIP funds after his services were terminated.

The respondent received an admonition for the above violation.

ADMONITION NO. 99-41

CLASSIFICATIONS:

Conduct prejudicial to the administration of justice

[DR 1-102(A)(5)]

Conduct otherwise adversely reflecting on the fitness to practice law

[DR 1-102(A)(6)]

Failure to withdraw from employment upon discharge

[DR 2-110(B)(4)]

Neglect of a legal matter

[DR 6-102(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 to a client

[DR 7-101(A)(3)]

SUMMARY:

In August 1990, the client was injured when he fell into a hole on property owned by the telephone company. The client was treated for his injury at a local hospital and was diagnosed with a sprained right foot. In October 1990, the client retained the respondent to represent him in recovering damages for the injury he sustained in the accident.

Between October 1990 and May 1992, the respondent obtained medical records and records of expenses incurred by the client. The client had no lost wages and his total medical expenses were less than $550.00. During this time, the respondent also attempted, unsuccessfully, to settle the clientís case.

In May 1992, the respondent filed a personal injury matter in the district court on behalf of his client. The respondent informed the client that he had filed the suit. The respondent neglected to effect service of the summons and the complaint on the defendant and took no other action in the case.

The client had no contact with either the respondent or his law firm from May 1992 until early 1995. In February 1995, the client contacted the respondentís law firm to find out the status of the case. At that time, the client learned that the respondent was no longer engaged in the practice of law. The client was upset because the respondent had not informed him that he had left the practice of law and immediately requested his file.

On March 6, 1995, the client obtained his file from the respondentís law firm and discharged the law firm as his counsel. The clientís case was still pending in the district court although service had not been made on the defendant. Neither the respondent nor the law firm filed a notice of withdrawal with the district court.

After he obtained his file, the client spoke with another attorney. When this attorney found a copy of the summons without the sheriffís return in the file, he incorrectly assumed that the case had been dismissed. The attorney advised the client that because service had never been made, the statute of limitations had expired on his claim and that the clientís only recourse was a malpractice action against the respondent and his law firm. The attorney told the client that he did not handle malpractice suits.

After meeting with the attorney, the client took no action against the respondent and took no action on his case. On January 2, 1996, a notice of dismissal without prejudice was entered by the district court in the clientís case.

By neglecting the clientís case, the respondent violated Canon Six, DR 6-102(A)(3) and Canon Seven, DR 7-101(A)(1), (2), and (3). By failing to withdraw from the representation upon discharge by the client, the respondent violated Canon Two, DR 2-110(B)(4).

In a second matter, the respondent, without consulting the client, directed an associate at his law firm to prepare a motion to vacate an order dismissing a clientís case along with an affidavit in support of the motion. The respondent told the associate to describe the officeís "routine practices" for tracking litigation matters in the affidavit. The respondent failed to advise the associate that those "routine practices" did not apply in the case. As a consequence, the associateís affidavit did not accurately describe the manner in which the judgment of dismissal had been discovered by the respondentís office.

The respondent filed the motion and the affidavit with the court without reading the affidavit. The respondent mailed a copy of the motion and the affidavit to the client. When the client received the motion and the affidavit, he told his new counsel to direct the respondent to remove the motion from the motion list, which new counsel did. The respondent immediately withdrew the matter from the motion list. At the same time, the client informed the respondent that he no longer wished the respondent to represent him.

By filing the affidavit without reading it, the respondent violated Canon One, DR 1-102(A)(5) and (6).

The respondent is currently 73 years old and has cancer. The respondent is not currently engaged in the private practice of law and has agreed to retire as a member of the bar. In 1991, the respondent received an informal admonition for neglecting a client matter. In 1993, he received a private reprimand for neglecting a estate, failing to take any action to remove an heir-at-law from the estateís property, and failing to preserve the estateís property from waste. PR-93-39, 9 Mass. Att'y Disc. R. 425 (1993).

ADMONITION NO. 99-42

CLASSIFICATION:

Improper Disclosure of Confidential Information

[Mass. R. Prof. C. 1.6(b)]

SUMMARY:

The respondent received an admonition in connection with his representation of a client who was appealing his conviction for first degree murder.

Approximately two weeks after the respondent had been discharged by the client, he filed his motion to withdraw, accompanied by a six page affidavit. Since he knew that CPCS was in the process of appointing successor counsel, the respondent could have limited his communication with the court to the simple statements, contained in his Motion to Withdraw, "my client has discharged meÖ.CPCS has informed me that successor counsel is being assigned." Instead, the respondent wrote a six page affidavit setting forth the chronology of the representation during the preceding 16 months, the many demands on his schedule during that period, and attacking the client. The respondent objected especially to the clientís desire to associate a jailhouse lawyer to his case. The respondent characterized material given him by the jailhouse lawyer as "legally complete gibberish."

The respondent explained in detail the conversation between himself and the client on the day he was discharged. Prior to discharging the respondent, the client had demanded that the respondent visit him immediately. The respondent had not visited the client in the 16 months since his appointment. In his affidavit that respondent stated as follows-

I patiently explained that I had just finished a long trial, and was planning to see him the following Thursday, but could not see him sooner. I told [the client] that because of the Ö trial I had medical appointments, including elective surgery, scheduled in the next few days, plus two court appearances, and had absolutely no ability to visit him any sooner than seven days in the future. He continued to harass and goad me on this subject, no matter how carefully I re-explained the situation. In retrospect, I believe that he was goading me by design. During this conversation, which lasted almost an hour, [the client] ordered me to withdraw from his case. I tried to change his mind

Ö.His attitude remained confrontational, abusive and obnoxious (it also made no sense whatsoever). Once it became clear that I could not dissuade [the client] from discharging me as his counsel, I explained that I needed something in writing from him to attach to a Motion to Withdraw. He loftily informed me that all I needed to do was withdraw; he refused to recognize that I might need something from him in writing in support of such a motion (he cited fellow inmates who had fired lawyers as consulting experts on the procedure).

After explaining the clientís desire, with which the respondent did not agree, that the respondent consult with the jailhouse lawyer and extend the date for filing the appeal brief, the respondent stated as follows-

It is my considered opinion that [the client] has concocted this entire situation for the sole purpose of gaining more time for [the jailhouse lawyer] to meddle with his appeal. Nevertheless, I am ethically bound to respect a clientís wishes that I cease further representation of him. Also, [the client] has filed a rather scurrilous BBO complaint, in which he charges that I shouted obscenities at him, and various other falsehoods.

The respondent went on to describe the contents of a telephone conversation that very day in which he had informed the client he had not yet filed his motion to withdraw because the client had not returned a proposed letter sent to him by the respondent asking him to withdraw. The respondent then stated, "I believe that he was deliberately trying to goad me again." The respondent concluded,

Under the circumstances, where it is clearly the defendantís wish that I discontinue all representation of him, and where his conduct has destroyed any reasonable prospect of a successful attorney:client relationship, I believe that the interests of justice are best served by the allowance of the attached Motion to Withdraw.

It was unnecessary for the respondent to provide details of the communications between the respondent and his client to the court or to speculate in his motion about why the client had terminated his services. The client had discharged him and CPCS was in the process of appointing new counsel. The respondent had no reason to think there would be any opposition to his motion to withdraw.

By making unwarranted disclosure of client confidences in connection with his motion to withdraw, the respondent violated Mass. R. Prof. C. 1.6(b). The respondent received an admonition for his conduct in this matter.

ADMONITION NO. 99-43

CLASSIFICATIONS:

Conduct Prejudicial to the Administration of Justice

[DR 1-102(A)(5)]

Deceptive-Announcement, Sign, Letterhead, Other

[DR 2-102(A)]

Unauthorized Practice in Another Jurisdiction

[DR 3-101(B)]

Conduct Prejudicial to the Administration of Justice

[Mass. R. Prof. C. 8.4(d)]

Unauthorized Practice of Law

[Mass. R. Prof. C. 5.5(a)]

False or Misleading Communication

[Mass. R. Prof. C. 7.1(a)]

Firm Names and Letterhead

[Mass. R. Prof. C. 7.5(a)]

SUMMARY:

The respondent lives in Connecticut and is admitted to practice law there as well as in Massachusetts. In 1993, she notified the Board of Bar Overseers that she wished to retire from the bar pursuant to Supreme Judicial Court Rule 4-02, ß5(a), such that she no longer is assessed or pays an annual registration fee. Despite having registered as retired, the respondent in 1996 and again in 1998 entered appearances in a probate proceeding in Massachusetts on behalf of herself and several relatives involved in a will contest. In addition, during this same period the respondent identified herself on her letterhead as a member of the Massachusetts Bar without noting her retired status. After Bar Counsel inquired about these problems, the respondent withdrew her appearance on behalf of the relatives and corrected her letterhead.

The respondentís conduct in entering appearances on behalf of clients while registered as retired constitutes conduct prejudicial to the administration of justice in violation of Canon One, DR 1-102(A)(5) and Mass. R. Prof. C. 8.4(d), as well as unauthorized practice of law in violation of Canon Three, DR 3-101(B) and Mass. R. Prof. C. 5.5(a). She was also in violation of Canon Two, DR 2-102(A) and Mass. R. Prof. C. 7.1(a) and 7.5(a), prohibiting use of a deceptive letterhead.

The respondent received an admonition for the above violations.

ADMONITION NO. 99-44

CLASSIFICATIONS:

Improperly Disbursing Escrow Funds

[DR 9-102(A)]

Failure to Maintain Proper Records of Clientís Property

[DR 9-102(B)(3)]

SUMMARY:

The respondent was counsel to the wife in a divorce case. After an initial distribution to the parties, the balance of funds from the sale of the marital property was deposited by the respondent to an account in the names of the respondent and the attorney for the husband, pending an agreement or court order on division of the proceeds. The respondent thereafter withdrew funds from this account for the benefit of her client without proper authorization from the husband or his counsel. The husband died before any final agreement or orders entered concerning the disposition of the sale proceeds; claims by his estate against the funds were eventually dismissed. There accordingly was no ultimate harm.

The relationship between the respondent and her client subsequently deteriorated and the client retained successor counsel. The respondent turned over the clientís files but was otherwise uncooperative with counselís attempts to obtain information concerning the liquidation of the above-described account or the disposition of the funds. The respondentís conduct in this respect caused an unnecessary delay in the clientís obtaining a full accounting.

The respondentís unauthorized distribution of the sale proceeds and her failure to provide a prompt accounting of these funds is conduct in violation of Canon Nine, DR 9-102(A) and (B)(3). In mitigation, the respondent has been an attorney for fifty years, with no prior discipline. She accordingly received an admonition for the above violations.

ADMONITION NO. 99-45

CLASSIFICATIONS:

Handling Legal Matter Without Adequate Preparation

[Mass. R. Prof. C. 1.1]

Failing to Act Diligently

[Mass. R. Prof. C. 1.3]

SUMMARY:

The respondent represented a husband in post divorce modification and contempt proceedings that went to trial in September 1998. At time of trial the respondent filed a financial statement on behalf of her client. The respondent certified on the financial statement that she had no knowledge that any of the information was false. However, the trial judge found that the husbandís financial statement was false in a number of material respects and on September 29, 1998, referred the matter to Bar Counsel.

The husbandís financial statement listed debts and expenses that did not conform to documents that the respondent had submitted to opposing counsel in response to discovery. Prior to trial, the respondent did not compare the debts and expenses listed on the financial statement against the documentation and correct the erroneous items. As examples, the husband overreported a monthly premium for professional malpractice insurance, underreported an average balance in his checking account and grossly overreported amounts due on two student loans by adding interest calculated on the current balance over the life of the loan. In addition, the respondent failed to adequately investigate other claimed business expenses which were inconsistent with the nature of her clientís employment.

The respondentís conduct in this respect did not reflect any intent to mislead the court or opposing counsel, who was aware of the actual facts prior to trial, but reflected inadequate attention to the matter because of a busy schedule and a recent diagnosis of a serious medical condition.

The respondentís conduct of failing to carefully review and adequately investigate a domestic relations financial statement and her certification of a financial statement without reasonable inquiry of obvious inconsistencies, constituted inadequate preparation and lack of reasonable diligence in violation of Mass. R. Prof. C. 1.1 and 1.3.

The respondent received an admonition for the above violations conditioned upon attendance at a CLE program recommended by Bar Counsel.

ADMONITION NO. 99-46

CLASSIFICATIONS:

Commingling Clientsí Funds with Lawyerís Funds

[DR 9-102(A)]

Failure to Maintain Proper Records of Clientís Property

[DR 9-102(B)(3)]

IOLTA Violation

[DR 9-102(C)]

Conduct Prejudicial to the Administration of Justice

[DR 1-102(A)(5)]

Failure to Cooperate in Bar Discipline Investigations

[S.J.C. Rule 4:01, ß 3]

SUMMARY:

This matter came to Bar Counselís attention as a result of the respondentís attempt to pay his annual registration fee to the Board of Bar Overseers with a check drawn on a client fund account. The account in question was denominated as a client fund account but was in fact a commingled account that was used for the deposit and disbursement of personal or business funds, as well as trust funds. Moreover, although the account was used for the deposit of client funds held short term, it was not an IOLTA account. In addition, the respondentís recordkeeping for this account was inadequate. He maintained only a stub book into which he generally entered no more than the amounts of checks, not the names of payees, and for which he did not do the arithmetic necessary to obtain a checkbook balance. He also did not reconcile the account, either internally or to the bank statements. The respondentís conduct in these respects was in violation of Canon Nine, DR 9-102(A),(B)(3), and (C).

The respondent has now discontinued using this account for the deposit and disbursement of trust funds. It is used only as an operating account and has been renamed accordingly. The respondent has a separate IOLTA account for trust funds.

This matter was further complicated by the respondentís failure on several occasions to cooperate with Bar Counselís investigation, in violation of Supreme Judicial Court Rule 4:01, section 3 and Canon One, DR 1-102(A)(5). In mitigation, however, the respondent has chronic physical problems that affected his ability to reply to Bar Counselís inquiries. He also suffered a family tragedy during the course of the investigation.

Under these circumstances, the respondent received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel and upon satisfactory completion of a probation agreement intended to insure future compliance with trust accounting requirements.

ADMONITION NO. 99-47

CLASSIFICATIONS:

Conflict of Interest Between Clients

[DR 5-105(B)]

Handling Legal Matter When Not Competent

[DR 6-101(A)(1)]

Handling Legal Matter Without Adequate Preparation

[DR 6-101(A)(2)]

Failure to Zealously Represent

[DR 7-101(A) (1) and (2)]

Prejudicing Client During Representation

[DR 7-101(A) (3)]

SUMMARY:

On September 9, 1992, the respondent was retained by a client who had suffered serious injuries in a automobile accident on September 6, 1992 to represent her in claims arising from the accident. The clientís car was hit head-on by a car driven by a driver who was arrested and charged with driving under the influence and driving to endanger. On September 11, 1992, the client met with the respondent, and they signed a contingent fee agreement.

The respondent practiced law with other lawyers who had independent practices but who held themselves out to the public as a "Professional Association." Although the lawyers each had a separate office in the space they leased, they shared a reception area; used the same address, letterhead, and telephone number; and had access to each othersí client files. Because of these factors, the lawyers were considered associates in the same firm.

Nevertheless, the lawyers had no procedure for detecting conflicts of interest among the clients of the lawyers who were part of the Professional Association. As a consequence of this, the respondent was unaware that another lawyer in the Association was retained on September 9, 1992 by the driver who had caused the clientís injuries to represent the driver in the criminal proceedings. The respondentís clientís interests differed from the driverís, and a lawyer could not represent the interests of both clients adequately, even with informed consent. Canon Five, DR 5-105(B). See Com. 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 DR 5-105(D) for disqualification purposes). Because he was not aware of the conflict, the respondent took no action to cure the conflict by notifying his client, having the other lawyer withdraw from the representation and seeking the driverís consent to the respondentís continuing to represent the client. The respondent left the Association three months after agreeing to represent the client.

The respondent submitted the clientís medical bills to the insurers and settled the clientís property damage claim. The clientís medical expenses exceeded $17,000, and she had $12,000 in lost wages. Combined insurance coverage on the clientís and driverís insurance policies totaled only $25,000.

In about July 1993, the respondent advised the client to settle her case for $25,000. The respondent had no experience in handling personal injury cases when damages exceeded the available insurance coverage, and he did not associate himself with counsel who had such experience. Although the respondent discovered that the driver owned a house on which a lien could be placed, he discouraged the client from seeking a lien, and he never took steps to obtain an attachment. The respondent also had not made any effort to learn the details or progress of the criminal case, and he never contacted the prosecutor of the case to explain the clientís need for restitution. The respondentís counseling his client to settle her claim for inadequate compensation, his failure to stay abreast of the criminal proceedings, his failure to consult with counsel competent to handle personal injury claims in excess of available insurance coverage, and his failure to attach assets to help compensate his clientís injuries, prejudiced his client, and constituted handling legal matter when not competent and without adequate preparation, and failure to zealously represent the client in violation of DR 6-101(A) (1) and (2), and DR 7-101(A) (1), (2) and (3).

In mid-August 1993, the client discharged the lawyer and engaged successor counsel. Successor counsel filed suit immediately and secured an attachment on the driverís house. Successor counsel then discussed with the District Attorney that there was insufficient insurance to compensate the client for her injuries. The driver agreed to refinance his home in order to contribute $50,000 to the settlement of the clientís case for $75,000 prior to reaching a plea agreement with the District Attorney in April 1994.

That the period in which the respondent and the other lawyer were associated while representing clients with adverse interests only lasted three months was a matter in mitigation. In addition, the client suffered no ultimate harm from the respondentís neglect and lack of zealous representation. The respondent received an admonition for his conduct.

ADMONITION NO. 99-48

CLASSIFICATIONS:

Trust Account Commingling and Recordkeeping

[Mass. R. Prof. C. 1.15(a)]

Trust Account Requirements

[Mass. R. Prof. C. 1.15(d)]

SUMMARY:

This matter came to Bar Counselís attention as a result of the respondentís attempt to pay his annual registration fee to the Board of Bar Overseers with a check drawn on an account denominated as a client account. The account in question was not an IOLTA account, although the respondent does have a separate IOLTA account for client funds. The account in question was instead one into which the respondent deposited earned fees and from which he paid his own business and personal expenses.

The respondentís mislabeling of a personal or business account as a trust account violated Mass. R. Prof. C. 1.15(a),(d). In mitigation, the respondent did not understand that his use of the account in this manner was improper.

The respondent has been a member of the Bar since 1981, with no prior discipline. The respondent received an admonition for the above violation, conditioned upon attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-49

CLASSIFICATIONS:

Dishonored Check on Trust Account

[Mass. R. Prof. C. 1.15(f)]

Trust Account Requirements

[Mass. R. Prof. C. 1.15(d)(2)]

Trust Account Commingling and Recordkeeping

[Mass. R. Prof. C. 1.15(a)]

SUMMARY:

This matter came to Bar Counselís 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 respondentís IOLTA account. The check in question was payable to the respondent for a fee and was returned unpaid as a result of a several problems with the respondentís handling of trust funds.

First, the respondent had deposited a retainer of $7500 to his trust account in early November 1998. Of this sum, at least $1485 had already been earned and billed when the deposit was made. The respondent did not promptly withdraw the earned funds as required by Mass. R. Prof. C. 1.15(d)(2) and instead left the entire retainer in his trust account.

At about the same time, the respondent settled an unrelated personal injury claim for another client. Although the release had been sent, the settlement funds had not yet been received from the insurer by Christmas and the client was in need of funds. Knowing that earned funds remained in his trust account from the retainer described in the previous paragraph, the respondent advanced the client $1500 from his trust account.

Second, the personal injury settlement funds were not finally received until late January 1999. In the meantime, the respondent in early January 1999 determined that he had earned the entire $7500 retainer previously described. Forgetting that he had advanced $1500 to the personal injury client from this retainer, he therefore wrote himself a check for $7500. It was this check that was returned for insufficient funds.

The respondent maintained no records for his trust account other than a check register. He did not do the arithmetic in the check register to add and subtract deposits and disbursements. He thus had not calculated the running balance and was unaware that the account contained insufficient funds to pay the $7500 check. The respondent also did not maintain individual client ledgers and did not reconcile the account. The respondentís recordkeeping in these respects was inadequate and in violation of Mass. R. Prof. C. 1.15(a).

In mitigation, the check that was returned unpaid was payable to the respondent and no client was harmed. The respondent has been a member of the Bar since 1983 with no prior disciplinary history. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-50

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)]

SUMMARY:

This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of two notices of dishonored check drawn on the respondentís IOLTA account.

The respondent has a conveyancing practice. In January 1999, five checks drawn against the respondentís IOLTA account in amounts ranging from $179,436 to $83,430 were dishonored by the bank for insufficient funds. The deficiencies in the account were caused by the fact that mortgage funds which two lenders had indicated would be wired to the respondentís account for three closings in December 1998 and January 1999 in fact had not been received before the transactions went to record and funds were disbursed.

The respondentís IOLTA account is very active, with deposits and disbursements of millions of dollars each month. Because four of the five dishonored checks were paid upon redeposit and the fifth occurred at the end of January, the respondent was unaware that these five checks had been dishonored until he received his January 1999 bank statement. Immediately upon becoming aware of the problem in early February, the respondent sent a replacement for the fifth check by overnight mail. However, the delay in receiving funding in one closing caused a shortfall in the account for over a month of almost $229,000 and, in the other two matters, a shortfall for several days of an additional $277,000. Although all payees were paid with only minimal delays, the deficiency for several weeks was being covered by the float.

An earlier file opened by Bar Counsel against this respondent involving a dishonored trust account check also arose from a real estate closing in which the respondent had not received the mortgage proceeds before going to record and disbursing funds. That file was closed without disciplinary action in August 1998, but the respondent was cautioned by Bar Counsel as to his obligation under the "good funds" statute, G.L.c.183, ß63B, to insure that mortgage funds were timely deposited to his account. In connection with the previous file, Bar Counsel specifically advised the respondent that he would need to confirm the deposit of mortgage funds with the bank in which he maintained his trust account (rather than with the lender). In his response to Bar Counsel in the current case, the respondent admitted that he understood his obligation in this respect but that he neglected to follow through in these instances.

The respondentís inadequate recordkeeping is in violation of Mass. R. Prof. C. 1.15(a). The respondent accordingly received an admonition.

ADMONITION NO. 99-51

CLASSIFICATIONS:

Neglect of a Legal Matter

[DR 6-101(A)(3)]

Failure to Make Distribution of Estate/Trust Property

[DR 9-102(B)(4)]

SUMMARY:

In July 20, 1994, the respondent was appointed executor of the estate of a decedent who had died on February 4, 1994. The respondent was also serving as the trustee of a trust which was due to terminate on the decedentís death.

After filing an inventory for the estate on October 6, 1994, the respondent did not take significant steps to settle the decedentís estate until July of 1997, when he was contacted by one of the heirs. The heir had learned from an asset finder that the Commonwealth of Massachusetts was holding unclaimed funds payable to the estate. The respondent was already aware of the unclaimed funds and successfully undertook efforts to claim the funds on behalf of the estate.

In August of 1997, the respondent made significant partial distributions of assets held in the trust. The respondent made additional partial distributions to the beneficiaries of the estate and trust in 1998 and 1999, with the final distributions being made by April of 1999.

On or about June 10, 1998, the respondent filed fiduciary income tax returns for the trust for tax years 1994, 1995 and 1996. The respondent also personally paid the late charges and penalties totaling $4,826.44 which were incurred by the trust as a result of the respondentís failure to pay the income taxes in a timely manner.

The respondent filed a Massachusetts estate tax return for the decedentís estate on June 22, 1998. Because the decedentís gross estate was valued at approximately $266,000.00, the estate was not taxable for state or federal estate tax purposes.

In February of 1999, the respondent paid the asset finder $500.00 from the respondentís own funds in exchange for the asset finderís agreement not to pursue a fee from the beneficiaries of the decedentís estate.

On June 23, 1999, the respondent filed his first and final account as executor of the decedentís estate.

By failing to settle the estate or to terminate the trust in a timely manner, the respondent neglected a legal matter in violation of Canon Six, DR 6-101(A)(3). By failing to promptly distribute the trust assets, the respondent violated Canon Nine, DR 9-102(B)(4).

In mitigation, the respondentís father died on February 19, 1995, and the respondent took some time away from his practice. In July, 1995, the respondent also began suffering from the effects of a serious ongoing health problem.

The respondent, who was admitted to practice in 1977 and had received no prior discipline, received an admonition for his conduct.

ADMONITION NO. 99-52

CLASSIFICATIONS:

Improper Disclosure of Confidential Information

[MRPC 1.6(a)]

Withdrawal without Protecting Client or Refunding Fee

[MRPC 1.16(d)]

SUMMARY:

On or about May 9, 1998, the respondent was appointed to represent a defendant on criminal charges in the Boston Municipal Court. The matter was continued to May 18 for pretrial conference and May 29 for a compliance and election hearing.

On May 29, the respondent suggested to the defendant that he change his plea. The defendant agreed to do so. However, during the plea hearing, the defendant became partially free from the restraints that had been placed on his wrists. The defendant then became agitated and physically violent when court officers attempted to restrain him. The plea was then withdrawn and the case was continued to June 23.

Between May 29 and Jun 11, the respondent received several letters from the defendant. In one of the letters, the defendant threatened the life of a particular prison guard. Due to the explicit nature of the threat and the violent behavior that he had observed on May 29, the respondent believed that the defendant had the present ability and actual intent to carry out the threat. The respondent believed he was obligated to notify the court about the matter and accordingly, he sent a copy of the letter to the Massachusetts Correctional Institution at Concord, and also to the criminal clerkís office, the presiding justice and the district attorneyís office at the Boston Municipal Court. The respondent also filed a motion to withdraw on June 11, 1999 which was heard and allowed on that same date. The respondent had not notified the defendant of the motion and the defendant was not present in court for the hearing. The matter was continued to June 23, 1998 for the appointment of new counsel to represent the defendant.

The respondent may have been justified in revealing the defendantís threat to the prison guard and officials in charge of security at the prison pursuant to Mass. R. Prof. C. 1.6(b)(1). However, a disclosure adverse to a clientís interest should be no greater than the lawyer reasonably believes necessary to the purpose.

There was no need for the respondent to disclose the threat to the court or to the district attorneyís office. It was not necessary to attach a copy of the defendantís letter to the respondentís motion to withdraw. The respondent need only have stated that a conflict of interest had arisen between him and his client. By attaching a copy of the defendantís letter to his motion to withdraw and by providing copies of the letter to the court and the district attorneyís office, the respondent violated Mass. R. Prof. C. 1.6(a). Further, the respondent should have notified the client of his intent to withdraw at the time the motion was filed. The respondent should then have scheduled the motion for a hearing and arranged for the defendant to be present at that hearing. His failure to do so was in violation of Mass. R. Prof. C. 1.16(d).

The respondent has been a member of the bar since 1988. He has no prior discipline. He received an admonition for his conduct in this matter conditioned upon his attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-53

CLASSIFICATIONS:

Neglect of a Legal Matter

[DR 6-101(A)(3)]

Failure to Act With Reasonable Diligence

[Mass. R. Prof. C. 1.3]

Failure to Keep Client Reasonably Informed

[Mass. R. Prof. C. 1.4]

SUMMARY:

The respondent received an admonition for two unrelated matters.

In the first matter, in January 1997, the respondent commenced to represent a client in a collection case pending in the Fall River District Court for goods sold and delivered. Although liability was clear, it was known that the corporate defendant was probably judgment proof. There was a potentially viable claim against the principal of the corporation. The respondent amended the complaint as of right, adding the individual principal as a defendant. The amended complaint was timely served and promptly answered. Between March 1997 and April 1998, the respondent discussed the case with opposing counsel, but took no further action. On April 16, 1998, the case was dismissed pursuant to standing order 1-88 and Dist. Mun. Ct. R. 79. The notice of dismissal was sent to the respondentís address as it appeared on record with the court. However, on or about April 1, 1997, the respondent had moved his office to a new location and the respondent did not notify the court of his change of address. Accordingly, the respondent was unaware of the dismissal.

On December 15, 1998, the client complained to Bar Counsel because the respondent was not returning his phone calls. The respondent received a copy of the complaint prior to January 4, 1999 but did not check the docket sheet at that time. Instead, on January 4, 1999, thinking the case was still pending, the respondent filed a request for pre-trial assignment. On or about March 12, 1999, the respondent learned from Bar Counsel that the case had been dismissed on April 16, 1998 and on March 24, 1999 the respondent filed a motion for relief from judgment. On April 1, 1999, the court allowed the respondentís motion. Subsequent investigation by the respondent has confirmed that the debt is uncollectible against the individual defendant.

The respondentís neglect of a legal matter prior to January 1, 1998 was in violation of Canon Six, DR 6-101(A)(3). The respondentís neglect after January 1, 1998 was in violation of Mass. R. Prof. C. 1.3 and 1.4.

In the second matter, the respondent was retained in November 1996 to pursue a claim against a home inspection company. In May 1997, believing suit had been filed, the respondent negligently represented to his client that the case had been filed in court, when it in fact had not. The respondent filed the case in the New Bedford District Court on June 11, 1997. The complaint was timely served and promptly answered by July 30, 1997. However, the respondent took no further action on the case and did not request a trial assignment.

In the summer of 1998, the respondent moved his office to a new address. The respondent did not notify his client of his change of address causing some delay in communication. However, sometime during the summer the client found the respondent and the respondent promised to obtain a trial date. In October 1998, the client called the respondent and the respondent failed to return the call. In March 1999, the client filed a complaint with Bar Counsel. Between October 1998 and March 1999, the respondent took no action on the case.

On April 1, 1999, the case was dismissed pursuant to standing order 1-88 and Dist. Mun. Ct. R. 79. On April 8, 1999, the respondent filed a request for relief from judgment, which was allowed.

The respondentís neglect of a legal matter prior to January 1, 1998 was in violation of Canon Six, DR 6-101(A)(3). The respondentís neglect after January 1, 1998 was in violation of Mass. R. Prof. C. 1.3 and 1.4.

The respondent had substantial practice management problems and several relocations as a sole practitioner. In mitigation, these problems have recently been attended to by the respondentís affiliation with an established firm. Accordingly, the respondent received an admonition for his neglect of the two matters subject to attendance at a CLE program designated by Bar Counsel.

ADMONITION NO. 99-54

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:

The complainant ordered three deposition transcripts from a stenographer. When the respondent did not pay his bill, the stenographer filed a small claims action and obtained a default judgment. After the respondent failed to pay the judgment, the stenographer instituted supplementary process proceedings. The respondent failed to appear at the show cause hearing after being served with a summons, and a capias issued. The constable notified the respondent that a capias had issued and that his presence was required in court on June 11, 1996. The respondent left the courtroom before the call of the list, and a second capias issued. Thereafter, the respondent made full payment to the stenographer.

By failing to pay a lawful court order, necessitating the issuance of two capiases, the respondent violated Canon One, DR 1-102(A)(5) and (6). See Admonition No. 99-25 (1999).

In aggravation, the respondent received a warning in 1991 for failing to satisfy a court-ordered judgment prior to the issuance of a capias. In addition, the respondent received an admonition on August 18, 1996 for neglect of an estate matter. Because the misconduct in this case occurred prior to the respondentís first admonition, Bar Counsel did not recommend an escalated sanction in this instance.

The respondent received an admonition for his conduct.

ADMONITION NO. 99-55

CLASSIFICATIONS:

Neglect of a Legal Matter

[DR 6-101(A)(3)]

Failure to Keep Client Reasonably Informed

[Mass. R. Prof. C. 1.4]

SUMMARY:

In September 1991 the respondentís client paid the respondent one hundred dollars ($100.00) for the drafting and recording of a quitclaim deed to a condominium unit located on Marthaís Vineyard. By virtue of the deed the client was to acquire record title to the unit in common with the previous record co-owner. The client and the other co-owner were housemates. The respondent believed that a local transfer tax would not apply. However, the Marthaís Vineyard Land Bank did not accept the respondentís claim of exemption based on the circumstances of the conveyance and the registry of deeds would not accept the deed without the transfer stamps affixed. The respondent thereafter failed to notify the client of the Land Bankís position or of his inability to record.

In May 1998 disputes arose between the co-owners. At that time, the clientís current attorney called and wrote to the respondent for an explanation of why the deed did not appear to be in the chain of title. The attorney called on May 18, 1998 and wrote letters dated May 19, 1998, June 1, 1998 and June 15, 1998. The respondent did not return the phone call or respond to the letters. On January 25, 1999 the matter was resolved between the client and the other co-owner without the respondentís assistance. However, the client still had no explanation from the respondent as to why the deed did not appear in the chain of title.

On May 27, 1999 the client complained to Bar Counsel and on June 16, 1999, in response to the complaint, the respondent for the first time provided the client, the clientís current counsel and Bar Counsel with his explanation for the lack of recording.

The respondentís failure to adequately communicate with his client, either to notify the client in 1991 of the obstacle to recording the deed or reply to the inquiries in 1998 and 1999 concerning this oversight, constituted neglect of a legal matter entrusted to him and a failure to keep his client reasonably informed in violation of Canon Six, DR 6-101(A)(3) and Mass. R. Prof. C. 1.4. The respondent received an admonition for his misconduct conditioned upon attendance at a CLE program designated by Bar Counsel.

ADMONITION NO. 99-56

CLASSIFICATIONS:

Inadequate Preparation and Neglecting a Legal Matter

[DR 6-101(A)(2), (3)]

Failure to Cooperate in Bar Discipline Investigations

[Mass. R. Prof. C. 8.4(g)]

Failure to Return Papers on Discharge

[Mass. R. Prof. C. 1.16e]

Failure to Cooperate in Bar Discipline Investigations

[S.J.C. Rule 4:01, ß3]

SUMMARY:

The respondent represented a husband and wife in connection with their purchase of a newly constructed home. The closing occurred in November 1994. At the closing, a punch list of unfinished items was acknowledged and a written escrow agreement executed with a holdback of $3,000.00, of which $2,500.00 represented the sellerís funds. The respondent undertook to act as escrow agent. Another lawyer acted as closing attorney.

In October 1995, the closing attorney sued the seller/builder in connection with the closing transaction. The closing attorney had made a math error to the advantage of the seller and sought reimbursement. At that time, the seller/builder was out of business and judgment proof.

On January 3, 1997, the respondent, in his capacity as escrow agent, was served with a trustee complaint and summons. The closing attorney argued that the respondent was holding funds that the seller/builder was entitled to receive. After receipt of the trustee summons, the respondent called and spoke with the husband. The husband informed the respondent that, although the items had not been timely completed, the punch list items had by then been substantially finished. The respondent advised the husband that, since the items had been completed, he would have to answer the trustee summons in the affirmative.

After the husband spoke to the respondent, the husband discussed the matter with his wife. As a result of that discussion, on January 21, 1997, the husband faxed a note to the respondentís office and informed him that some of the items were never completed and that he wanted those issues resolved before the money was released. The husband also asked to be sent a copy of the escrow agreement.

The respondentís answer to the trustee summons was due by March 7, 1997. The respondent did not review or remember the fax received in his office on January 21, 1997. Believing that he had no good faith basis to defend given the husbandís earlier admission that the punch list items had been substantially completed, the respondent did not file any answer.

In March 1997, the closing attorney filed a motion to charge trustee. The respondent appeared for the motion hearing and orally contested the closing attorneyís motion on the grounds advanced by his clients, despite not having filed an answer and having been defaulted. On April 17, 1997 the closing attorneyís motion was allowed and judgment entered against the respondent in his role as trustee. On May 13, 1997, the respondent tendered $2,500.00 of the escrow funds to the closing attorney.

The respondent did not timely advise his clients of the court order or that the respondent had disbursed the escrow funds to the closing attorney. In early April 1998 the clients learned for the first time that the funds had been released and in June 1998 the clients complained to Bar Counsel.

The respondent also failed to timely respond to his clientsí complaint to Bar Counsel and replied only after being advised that his noncooperation could result in administrative suspension. Thereafter, the respondent cooperated fully with Bar Counselís investigation.

On May 6, 1998, the wife made a written demand for the file. The respondent made arrangements for her to pick up the file on May 8, 1998. When the client went to pick up the file, she was told the file was not ready. The file in fact had been lost or misplaced but the respondent did not so inform the client. On June 9, 1998, the client made another written demand for the file. The respondent did not reply. The respondent finally produced the file on December 9, 1998 after intervention by Bar Counsel. In February 1999, he advised Bar Counsel for the first time that the delay had been occasioned by his inability to locate the file.

The respondentís failure to review the fax from his clients or file an answer in opposition to the trustee summons, and his failure to communicate with his clients, constituted inadequate preparation and neglect, in violation of Canon Six, DR 6-101(A)(2) and (3).

The respondentís failure to respond to Bar Counselís inquiries until advised that his noncooperation could result in administrative suspension was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, ß3.

The respondentís failure to transmit his clientsí file upon request or, in the alternative, to advise them that the file had been temporarily misplaced, was in violation of Mass. R. Prof. C. 1.16(e).

The respondent has a prior admonition, also for neglect. In mitigation, however, both problems arose during the same time frame and while the respondent was preoccupied with his wifeís terminal illness. The respondent accordingly received an admonition for the above misconduct.

ADMONITION NO. 99-57

CLASSIFICATIONS:

Commingling Clientsí Funds with Lawyerís Funds

[DR 9-102(A)]

Failure to Maintain Proper Records of Clientís Property

[DR 9-102(B)(3)]

Handling Legal Matter When Not Competent

[DR 6-101(A)(1)]

Handling Legal Matter Without Adequate Preparation

[DR 6-101(A)(2)]

SUMMARY:

The respondent maintained a commingled IOLTA account. He used his IOLTA account to deposit funds of a family member that were not client funds. He transferred clientsí settlements in full from his IOLTA account to his business operating account and made disbursements to the clients from the operating account. The respondent also allowed earned fees to accumulate in the IOLTA account and paid personal or business expenses directly from his IOLTA account. The respondentís conduct in these respects constituted commingling, in violation of Canon Nine, DR 9-102(A).

In addition, the respondent failed to keep adequate records of his handling and maintenance of the IOLTA account including failing to keep individual client ledgers or any other method to zero out receipts and disbursements for specific clients, in violation Canon Nine, DR 9-102(B)(3).

In mitigation, the respondent was new to solo practice at the time of the events in question. He never had responsibility for or training in trust account maintenance. He subsequently obtained training, associated with an established firm, and corrected his record keeping practices.

In a second unrelated matter, the respondent was retained to represent a client in a medical malpractice case only months after his admission to the Bar. Although the respondent communicated his inexperience to his client, the respondent was not competent to handle the case. The respondentís lack of competence contributed to inadequate investigation and preparation including failing to have the medical records reviewed by an expert prior to reference to a medical malpractice tribunal and the

filing of an unwarranted motion. The respondentís conduct was in violation of Canon Six, DR 6-101(A)(1) and (2). The respondent was discharged by the client and allowed to withdraw from the case prior to the convening of the medical malpractice tribunal. The case is still pending and there is no evidence that it was ultimately damaged by the respondentís conduct.

The respondent received an admonition for the above misconduct.

ADMONITION NO. 99-58

CLASSIFICATION:

Improper Division of Fee with Other Lawyer

[DR 2-107(A)(1)]

SUMMARY:

In 1996, a client consulted the respondent regarding a summons she had received in a Rhode Island matter. The client paid the respondent a consultation fee. The respondent then referred the client to an attorney in Rhode Island.

The client paid the Rhode Island attorney a retainer of $1,500. Sometime later the Rhode Island attorney requested an additional $2,000. The client requested, but did not receive, an accounting for the funds already paid. The client then discharged the Rhode Island attorney, obtained her file and retained successor counsel. In reviewing her file, the client discovered that the Rhode Island attorney had sent the respondent $500, or 1/3 of her retainer, soon after the referral was made. The client questioned both the Rhode Island attorney and the respondent regarding what work the respondent had done to earn this money and filed a complaint with Bar Counsel.

The respondent stated that the fee was for services rendered on the case, that he had consulted with the Rhode Island attorney during the initial months of the representation, and that the client had initially submitted documents to the Rhode Island attorney through him. The respondent indicated that he had not requested a fee, but that the Rhode Island attorney had sent the fee in response to the respondentís comments regarding the amount of time he was putting into the case. The Rhode Island attorney confirmed that the respondent had not requested payment and that the respondent had spent time with him on the case, discussing strategy regarding jurisdictional issues and forwarding documents. However, neither the Rhode Island attorney nor the respondent advised the client that the Rhode Island attorney was dividing the $1500 fee with the respondent .

By failing to obtain the clientís consent to a division of fees, the respondent violated Canon Two, DR 2-107(A)(1), as well as the analogous Rhode Island Rule of Professional Conduct 1.5(e). The respondent received an admonition for his conduct in this matter.

ADMONITION NO. 99-59

CLASSIFICATION:

Neglect of a Legal Matter

[DR 6-101(A)(3)]

SUMMARY:

The respondent was the attorney for the executor of an estate. All significant aspects of the estate administration were completed by February 1996 except for the filing of an account. Beginning in January of 1997, the executor repeatedly requested that the respondent prepare an account. Although the respondent prepared several drafts, he did not prepare a final draft which was suitable for filing until June of 1998, after a beneficiary of the estate had filed a grievance with Bar Counsel. The respondent also failed to respond to several letters from the executor requesting information on the status of the matter.

By failing to timely prepare and file the executorís first and final account, the respondent neglected a legal matter entrusted to him in violation of Canon Six, DR 6-101(A)(3). The respondentís failure to adequately communicate with his client also violated Canon Six, DR 6-101(A)(3).

The respondent who was admitted to practice in 1963 and had received no prior discipline received an admonition for his conduct.

ADMONITION NO. 99-60

CLASSIFICATIONS:

Conduct Prejudicial to the Administration of Justice

[Mass. R. Prof. C. 8.4(d)]

Conduct Adversely Reflecting on Fitness to Practice

[Mass. R. Prof. C. 8.4(h)]

Failing to Act Diligently

[Mass. R. Prof. C. 1.3]

Failing to Communicate Adequately with Client

[Mass. R. Prof. C. 1.4]

SUMMARY:

The respondent was retained in July 1997 by a woman from Pennsylvania, whose minor sonís father had died intestate a resident of Massachusetts. Although there was some initial delay not entirely within the respondentís control, by January 1998 matters were in order for the petition for probate to be filed. The respondent filed the necessary papers in May 1998 and was appointed administrator in July 1998. Thereafter, despite numerous calls and letters from the client and her Pennsylvania attorney, the respondent took no further action. In the fall of 1998, the client retained new counsel, who filed a petition and obtained an order from the Probate Court requiring the respondent to render an inventory by January 27, 1999. The respondent was served in hand with the order on January 4, 1999 but did not file an inventory. The client was appointed successor fiduciary in April 1999.

The respondentís failure to comply with the order of the court that he render an inventory was conduct prejudicial to the administration of justice and adversely reflecting on his fitness to practice law, in violation of Mass. R. Prof. C. 8.4(d),(h). The respondentís failure to act with diligence and promptness in probating the estate, and his failure to communicate with the client or her local counsel, violated Mass. R. Prof. C. 1.3 and 1.4.

The respondent has been a member of the Bar since 1976 with no prior discipline. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-61

CLASSIFICATIONS:

Failure to Maintain Proper Records of Clientís Property

[DR 9-102(B)(3)]

Trust Account Commingling and Recordkeeping

[Mass. R. Prof. C. 1.15(a)]

Dishonored Check

[DR 9-103]

SUMMARY:

This matter came to Bar Counselís attention in November 1997 when a check drawn on the respondentís IOLTA account was dishonored. In response to Bar Counselís inquiries, the respondent admitted that he had never done a proper accounting for his IOLTA account since it was opened in 1984. The respondent used legal fees due him from a settlement deposited a few days later to cover the check shortfall.

Review of the respondentís financial records showed several problems with the maintenance of the IOLTA account. Some deposit slips were missing, many deposit slips bore no notations as to source of funds, many checks bore no notation regarding the client on whose behalf the check was issued. The respondent did not withdraw fees in full as earned, but rather withdrew fees piecemeal. In addition, cases for which fees were being withdrawn were not always clearly identified. The respondent did not keep track of funds expended in this manner and overdrew the account.

In connection with disposition the respondent agreed to enter into an accounting probation agreement, to retain a bookkeeper, to automate his IOLTA account, and to attend a CLE course designated by Bar Counsel.

The respondent received an admonition for violation of Canon Nine, DR 9-102(B)(3), Canon Nine, 9-103, and Mass. R. Prof. C. 1.15(a), conditioned on the adequate fulfillment of the accounting probation agreement and attendance at the MCLE course.

ADMONITION NO. 99-62

CLASSIFICATIONS:

Commingling Clientsí Funds With Lawyersí Funds

[DR 9-102(A)]

Failure to Maintain Proper Records of Clientís Funds

[DR 9-102(B)(3)]

Dishonored Check on Trust Account

[Mass. R. Prof. C. 1.15f]

SUMMARY:

Between March 14, 1997 and May 7, 1997, and pursuant to Canon Nine, Disciplinary Rule 9-103, Bar Counsel received several returned check notices from BayBank regarding a client funds account held there by the respondents. The notices indicated that several checks had been returned due to insufficient funds in the account.

Bar Counselís investigation into this matter included review of bank records of the respondentís trust account and office operating accounts, and interviews with both respondents.

The shortage in the trust account stemmed from a real estate refinancing in November 1996. The homeowners were to bring $5,850.57 to the closing, but failed to do so. The respondents, relying on the homeownersí promise to return promptly with the funds, nonetheless allowed the transaction to close. The respondents thereafter assumed that the homeowners had kept their promise. After the three-day rescission period and without checking whether the additional funds had been received, they disbursed the closing proceeds by writing checks to pay off the existing mortgage and closing costs (including the respondentsí fee of $600.00) as if the entire amount had been received and deposited. This oversight created a shortfall in the trust account that the respondents did not immediately recognize or correct.

The respondents also did not rectify the problem adequately. Instead, as each dishonored check notice was received, the respondents would make piecemeal deposits of small amounts of their own funds sufficient to cover the deficiency at the time of the notice. The respondents had no system of reconciling the trust account to the bank statements and they did not immediately determine the cause, or take steps to cure, the total shortage.

In addition, Bar Counselís investigation showed that the respondents had deposited personal injury settlement funds into their office operating account, rather than in their trust account. However, the funds so deposited were properly disbursed to, or on behalf of the clients, and there was no evidence of improper use of client funds.

The respondentsí conduct in depositing personal injury settlement funds into their office operating account constituted commingling in violation of Canon Nine, Disciplinary Rules 9-102(A). The respondentsí failure to balance and reconcile the trust account constituted inadequate recordkeeping in violation of Canon Nine, DR 9-102(B)(3). In addition, by proceeding with a closing and disbursing checks from the settlement proceeds without confirming that they had sufficient funds to cover all of the checks issued, the respondents violated Canon Nine, DR 9-102(A) and (B)(3).

The respondents received an admonition for the above conduct.

ADMONITION NO. 99-63

CLASSIFICATIONS:

Notice of Dishonored Check

[Mass. R. Prof. C. 1.15(f)]

Trust Account Commingling and Recordkeeping

[Mass. R. Prof. C. 1.15(a)]

Failure to Cooperate in Bar Discipline Investigations

[Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 (3)]

SUMMARY:

This matter originally came to Bar Counselís attention in May 1998 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 respondentís IOLTA account. Bank statements provided by the respondent showed a further dishonored check in July 1998. While the investigation of those matters was ongoing, Bar Counsel received an additional notice of dishonored check from the bank in November 1998. The respondent failed to answer Bar Counselís further inquiries, necessitating the issuance of a subpoena to compel his appearance. The respondent appeared pursuant to a subpoena in April 1999. Almost immediately after the subpoena meeting, however, Bar Counsel received another notice of dishonored check. Again, the respondent did not reply to Bar Counselís inquiries, again he had to be subpoenaed to compel his appearance, and again he appeared in July 1999 pursuant to a subpoena.

The respondent is a conveyancer. In each instance, the underlying explanation for the dishonored check was fairly simple. The May 1998 and April 1999 incidents were caused by the respondentís failure to transfer mortgage funds from his trust account at the lender bank to the IOLTA account in a different bank from which he conducts all closings. He therefore made disbursements from the IOLTA account while the funds remained in the other trust account. The dishonored check from July 1998 involved an attempted disbursement against uncollected funds. The check was paid a few days later. The dishonored check from November 1998 resulted from the respondentís failure to confirm with his bank that a wire transfer had been received. In fact, the wire was not sent until a few days after the loan closed and disbursements were made, even though the respondent had been told by the lender that the wire had been sent earlier.

The respondentís failure to cooperate with Bar Counsel, necessitating the issuance of a subpoena on two separate occasions, is conduct in violation of Mass. R. Prof. C. 8.4(g) and Supreme Judicial Court Rule 4:01, ß3. The respondentís repeated failure to insure receipt and collection of trust funds prior to making disbursements against those funds constitutes inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a).

In mitigation, the respondent has been distracted this past year by family concerns. Apart from the problems described, his conveyancing software and record keeping is generally satisfactory. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-64

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 bank at a 1992 refinancing of a mortgage on the mortgagorís residence. At the time of the closing, the respondent realized that a discharge of the mortgagorís original 1984 mortgage had not been recorded, although the mortgagor had paid off this mortgage in 1986 at the time of a prior refinancing. In 1992, the respondent wrote to the lender to request the discharge for the 1984 mortgage. However, when he did not receive the discharge he did not pursue the matter further until the mortgagor sought to refinance his mortgage again in 1994. The respondent made some additional efforts to obtain the 1984 discharge in 1994, but to no avail. The respondent also requested but did not succeed in obtaining a discharge for the 1986 mortgage which he paid off in 1992.

Over the six year period from 1992 until 1998, despite prodding by the mortgagor and closing attorneys in subsequent refinancings, the respondent did not obtain the two discharges. Eventually, the mortgagor was able to obtain the discharges himself with the assistance of a title company.

By failing to diligently seek to obtain the loan discharges over a period of six years, even after being alerted to the problem by the mortgagor and by subsequent closing attorneys in 1994 and 1998, and after making assurances that he would pursue the discharges, the respondent violated Canon Six, DR 6-101(A)(3) and its successor Rule 1.3 of the Massachusetts Rules of Professional Conduct.

The respondent, who was admitted to practice in 1977 and had received no prior discipline, received an admonition for his conduct.

ADMONITION NO. 99-65

CLASSIFICATION:

Conduct Involving-Dishonesty, Fraud, Deceit, Misrepresentation

[DR 1-102(A)(4)]

SUMMARY:

This matter was brought to Bar Counselís attention by a justice of the Superior Court.

The respondentís client owned a business. In 1993, and prior to the respondentís involvement, a dispute arose with the prior owner and the client feared that she would be sued. In an attempt to protect the home from attachment should litigation ensue, the client executed, and caused to be recorded, a deed transferring title to her home to her daughter. The respondent had no part in the original transfer. A lawsuit was subsequently filed against the client by the prior owner. The respondent at that point was retained to represent the client in the litigation.

After the litigation was settled, the client in 1996 asked the respondent to prepare a deed for her daughter to sign to reconvey the home to the client. The respondent prepared a deed and forwarded it to his client for execution by her daughter. The deed was returned to the respondent by the client, bearing what purported to be the daughterís signature but not notarized. The respondent compared the daughterís signature on the deed with her signature on another document in his possession and concluded that the daughter had signed the deed. He therefore notarized the deed and caused it to be recorded it at the Registry of Deeds in July 1996.

Thereafter, the daughter claimed that the home had been a gift to her and that she never executed the deed reconveying the premises to her mother. The client admitted that, believing herself to be authorized to do so, she had signed her daughterís name. The daughter subsequently brought suit against her mother in Superior Court. This litigation is still pending.

The respondentís conduct in notarizing what purported to be the signature of the grantor when the signatory was not present constituted a misrepresentation as to the signatoryís presence, in violation of Canon One, DR 1-102(A)(4). In mitigation, he has been a member of the bar since 1988 with no prior disciplinary history. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-66

CLASSIFICATIONS:

Failure to Safeguard Client Funds

[DR 9-102(A)]

Failure to Maintain Proper Records of Clientís Funds

[DR 9-102(B)]

SUMMARY:

From July 31, 1996 to August 13, 1996, and pursuant to Canon Nine, DR 9-103, Bar Counsel received several dishonored check notices from the bank at which the respondent maintained his client trust account. The notices indicated that on July 31, 1996, 5 checks totaling $3,088 were returned; on August 8, 1996, one check totaling $937.00 was returned; and on August 13, 1996, one check totaling $6,333.34 was returned. Payment of these checks would have created overdrafts ranging from $3,243 to $171.59.

Bar Counsel's investigation showed that the respondent had turned over the duties of managing the IOLTA account to his secretary. He had a busy personal injury practice and, on any given day, the respondent would deposit several items into the account and would issue several checks from the account. In the period surrounding the overdrafts, the respondent made appropriate disbursements from settlement funds. However, the account was not routinely reconciled and it appeared that an old error had gone unnoticed, creating a deficiency that had been covered by the float in the account until this two-week period in 1996. Because of this problem, client funds deposited to the account at the time that the checks were dishonored were applied to other outstanding checks unrelated to that deposit. As a result, on two occasions checks to clients were returned unpaid because the funds deposited on their behalf had already been used. These clients and the recipients of other returned checks were all promptly repaid.

The respondentís failure to properly maintain the IOLTA account is conduct in violation of Canon Nine, DR 9-102(A) and (B). The respondent has now hired an accounting firm to insure that his trust account is properly maintained. He has been a member of the Bar since 1987, with no prior discipline. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel and upon satisfactory completion of a one-year financial probation.

ADMONITION NO. 99-67

CLASSIFICATIONS:

Handling Legal Matter without Adequate Preparation

[DR 6-101(A)(2)]

Neglecting A Legal Matter

[DR 6-101(A)(3)]

SUMMARY:

In or around September 1995, the respondent was appointed to represent a defendant on the appeal of his criminal conviction. There was a substantial delay in the production of trial transcripts and the respondent did not receive the transcripts until February 1997. The respondent sent a copy of the transcripts to the defendant at the Massachusetts Correctional Institution at Concord where he believed the defendant to be incarcerated. However, the defendant did not receive the transcripts because, unknown to the respondent, the defendant had been transferred to Hampshire County Jail in November 1995. Although the respondent and the defendant exchanged correspondence in 1996, the respondent apparently did not realize that his letters had been forwarded to the defendant at a different institution. He also failed to notice the change in the defendantís return address. The transcripts were subsequently returned to the respondentís office, but the respondent did not realize that they had been returned. He eventually learned of the defendantís new address but made no effort to send the transcripts to the defendant at the new location.

The respondent worked on the defendantís appeal with another attorney in his office. Although the respondent was counsel of record, he chose to communicate with the defendant by letter. The respondent believed that his associate would meet with the defendant to discuss the appeal. However, the associate never did so. Thus the defendantís appellate brief was filed by the respondent on August 27, 1997, without the respondent ever meeting the defendant, reviewing the transcripts with him, discussing appellate issues with him, or providing him with a draft or a copy of the brief. The respondent visited the defendant for the first time after learning of the courtís decision. He provided him with the trial transcripts during this visit.

The respondentís conduct in this matter did not comply with the Committee for Public Counsel Servicesí performance standards for appointed appellate counsel. His failure to visit the defendant in order to review trial transcripts and discuss appellate issues constituted neglect and inadequate preparation in violation of Canon Six, DR 6-101(A)(2) and (3). The respondent received an admonition for his conduct in this matter conditioned upon his attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-68

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)]

Failure to Cooperate in Bar Discipline Investigations

[Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 (3)]

SUMMARY:

This matter came to Bar Counselís 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 respondent is a conveyancer. The check in question was for $21,959.84 and represented the net proceeds payable to the borrowers after a refinancing. The respondent gave the check to the borrowers after the 3-day right of rescission expired and the new mortgage was recorded. However, the check was returned unpaid because the lender did not wire the funds to the respondentís IOLTA account until several days after the check was remitted to the borrowers. The lender had indicated to the respondent that the funds were being wired on the day that the right of rescission expired, but the respondent failed to confirm receipt of the funds in his IOLTA account with the depository bank.

The respondentís conduct was in violation of the "good funds" statute, G.L.c.183, ß63B, and of the record keeping requirements of Mass. R. Prof. C.1.15(a). In and of itself, an isolated problem of this type might not warrant disciplinary action. However, this matter was in fact the third file that Bar Counsel had opened on this respondent as a result of receipt of notice of dishonored checks. The other two cases involved inadvertent disbursement of closing funds from a trust account other than the one in which the proceeds had been deposited. Both of the earlier files were closed without disciplinary action, but with a caution concerning record keeping.

In addition, the respondent failed to cooperate with Bar Counselís investigation in the current case. The respondent did not reply to three letters from Bar Counsel requesting an explanation for the dishonored check, necessitating the issuance of a subpoena to compel his appearance. The respondentís conduct in this respect was in violation of Supreme Judicial Court Rule 4:01, ß3 and Mass. R. Prof. C. 8.4(g). In mitigation, this problem occurred at a time when the respondent was attempting to balance keeping up with the demands of his practice with care of an elderly parent and the needs of a young family.

The respondent has been a member of the Bar since 1982 with no prior discipline. He accordingly received an admonition for the above violation, conditioned upon attendance at a CLE course designated by Bar Counsel.

ADMONITION NO. 99-69

CLASSIFICATION:

Failure to Cooperate with Bar Counsel

[S.J.C. Rule 4:01, ß 3 and Mass. R. Prof. C. 8.4(g)]

SUMMARY:

This admonition results from two unrelated complaints against the respondent. In both instances, the respondent failed to cooperate with Bar Counselís investigations.

In each case, Bar Counsel sent three letters to the respondent in 1998 and 1999 requesting a response to the complaint. The respondent failed to reply to either complaint and was eventually served on two separate occasions with subpoenas requiring him to appear before Bar Counsel. The respondent appeared pursuant to the subpoenas in August 1998 and again in May 1999 and explained to Bar Counselís satisfaction his reasons for handling the matters in the manner he did.

During the August 1998 subpoena meeting, Bar Counsel requested additional items from the respondent in order to complete its investigation into the first complaint. When the respondent failed to forward all of the requested items, he was administratively suspended from the practice of law pursuant to Supreme Judicial Court Rule 4:01, ß3(3) in April 1999. The respondent was reinstated to practice in May 1999 after providing the information sought by Bar Counsel.

The allegations in the original complaint largely arose from the respondentís failure to communicate with his client in late 1997 and early 1998. In mitigation, the respondent is a recovering alcoholic who was still drinking at the time of these problems. He stopped drinking in January 1998. The second complaint involved the respondentís failure to refund a $500 retainer from a defendantís brother for a criminal appeal that, unknown to the respondent and the brother, had already been assigned to appointed counsel. The respondent has since refunded the retainer.

The respondentís failure to cooperate with Bar Counselís investigations into the two complaints is a violation of S.J.C. Rule 4:01, ß 3 and Mass. R. Prof. C. 8.4(g). The respondent was admitted to the Massachusetts Bar in 1986 and has no prior history of discipline. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel and on compliance with the recommendations of Lawyers Concerned for Lawyers.

ADMONITION NO. 99-70

CLASSIFICATIONS:

Conduct Prejudicial to the Administration of Justice

[DR 1-102(A)(5)]

Neglect of a Legal Matter

[DR 6-101(A)(3)]

Failure to Seek the Lawful Objectives of a Client

[DR 7-101(A)(1)]

Handling 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]

Failure to Cooperate in Bar Counsel Discipline Investigation

[S.J.C. Rule 4:01 3(b)]

SUMMARY:

This admonition arises from the respondent's neglect of three cases and his failure to cooperate with Bar Counsel.

In the first matter, the respondent was retained in 1996 by a couple in an immigration matter to complete and file an immediate relative petition for permanent resident status of the husband. The respondent was initially paid $150.00 for his work. However, when it later became apparent that additional work was required, he requested a further $1,500 retainer and was paid $800, with a promise to pay the balance.

At an interview with the couple at the Office of Immigration and Naturalization, an issue arose as to how the husband had entered the United States. The interview was suspended because information regarding the husbandís entrance in the United States was not available. The immigration officer determined that the information was needed from New York. The respondent promised the clients that he would pursue the matter. He did not do so, and when the couple attempted to communicate with him as to the status of his work, he did not respond to them.

The couple thereafter retained new counsel to represent them and they asked the respondent to return the file and refund the money paid. The respondent did not do so. It took several requests by successor counsel before the respondent returned the file. The respondent has also now refunded $500.00 to the clients.

The other two matters that the respondent neglected were bankruptcy cases. The respondent was paid $500.00 in 1998 by each client to complete and file bankruptcy petitions. The respondent neglected both cases and did not communicate with the clients. In both matters the respondent has now refunded the entire fee received and has returned the files. Both clients retained new counsel to pursue their cases.

The respondentís failure to work on his clientsí cases as agreed and his failure to communicate with them was conduct in violation of Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1), and Mass. R. Prof. C. 1.1, 1.3, 1.4.

The respondent also failed to reply to Bar Counselís inquiries. It was necessary to issue a subpoena to compel his appearance. The respondent appeared pursuant to the subpoena and provided written and oral responses at that time. The respondentís failure to cooperate with Bar Counsel was conduct in violation of Canon One, DR 1-102(A)(5), and SJC Rule 4:01 (3)(b).

In mitigation of the above conduct, the respondent has admitted to Bar Counsel that he has a substance abuse problem. The respondent met with Lawyers Concerned for Lawyers (LCL) and has agreed to participate in a rehabilitation program.

The respondent, who has been a member of the bar since 1974 and has had no prior discipline, received an admonition for the above conduct. The respondent also agreed to submit to a one-year probation period that requires him to strictly adhere to the terms of the rehabilitation agreement signed with LCL.

ADMONITION NO. 99-71

CLASSIFICATIONS:

Handling Legal Matter Without Adequate Preparation

[DR 6-101(A)(2)]

Neglecting A Legal Matter

[DR 6-101(A)(3)]

Prejudicing/Damaging Client During Representation

[DR 7-101(A)(3)]

SUMMARY:

The respondent represented a lender at a 1978 conveyance of vacant land. Although he paid off an existing 1977 second mortgage, he neglected to obtain a discharge of the mortgage. The missing discharge was also overlooked in connection with a subsequent 1986 refinance in which the respondent was not involved. The borrower discovered the omission in or about 1990, in connection with another refinance effort. Although the respondent was later able to obtain from the bank a copy of his cancelled payoff check, it was not possible to obtain a discharge acceptable to the prospective lender because the mortgage holder had died in 1982, his estate had not been probated, and the mortgage company of which he had been sole owner had been dissolved.

In 1993 the respondent agreed to file a petition to quiet title in the Land Court. He assigned the file to an associate whom he did not adequately oversee. He did not initiate a petition to quiet title with the Land Court until 1997.

The parties disagree about whether, given the intervening 1986 title examination and mortgage, the respondent had any obligation to address the title defect. Regardless, in 1993 the respondent did agree to resolve the issue. Thereafter he failed adequately to oversee the associate to whom he assigned the file, and then himself neglected to take adequate corrective action until after the borrower filed suit against him. His conduct in this regard violated Canon Six, DR 6-101(A)(2) and (3) [inadequate preparation and neglect] and Canon Seven, DR 7-101(A)(3) [damage to client].

The borrower has filed suit against the respondent for malpractice. The respondent carries adequate professional liability insurance to satisfy any judgments which may be entered against him in the borrowerís suit.

The respondent received an admonition for his conduct in this matter.

ADMONITION NO. 99-72

CLASSIFICATIONS:

Handling Legal Matter Without Adequate Preparation

[DR 6-101(A)(3)]

Failing to Act Diligently

[Mass. R. Prof. C. 1.3]

Failing to Communicate Adequately with Client

[Mass. R. Prof. C. 1.4]

SUMMARY:

The respondent was settlement agent for a 1993 conveyance. Although he paid off the sellerís mortgage in connection with the closing, he neglected to obtain and record a discharge of the mortgage. The omission was discovered in the fall of 1998, when the client tried to refinance his mortgage.

The respondent took responsibility for the error, and agreed to obtain the missing discharge. The mortgage company required either the loan number or the sellerís social security number. The seller had moved out of state, and it took several weeks to locate him. However, once the respondent had obtained the necessary information, he neglected to forward the information to the mortgage company, and did not respond to inquiries from the client and his mortgage broker. The respondent did not do the necessary follow-up until after the client had complained to the Office of Bar Counsel. In the meantime, the client had lost the benefit of funds paid the new mortgage company to lock in a favorable interest rates, and interest rates had increased.

The respondent twice neglected the clientís case. First he should have monitored the follow-up to the clientís conveyance to assure that a discharge of the sellerís mortgage was received and recorded. His failure to do so violated Canon Six, DR 6-101(A)(3). Once the missing discharge was brought to the respondentís attention and he had located the seller, he did not promptly provide to the mortgage company information necessary to acquiring a mortgage discharge. In addition, he did not adequately inform the client of the status of his efforts, all in violation of Mass. R. Prof. C. 1.3 and 1.4.

In mitigation, the respondent reimbursed the client for costs incurred in applying for the refinance. He carries adequate professional liability insurance to cover additional mortgage interest costs incurred by the client. He is a long time practitioner who has no disciplinary history. Under these circumstances, and in accord with standards set in Matter of Kane, 13 Mass. Attíy Disc. R. 321 (1997), the respondent received an admonition.

ADMONITION NO. 99-73

CLASSIFICATIONS:

Conduct Prejudicial to the Administration of Justice

[DR 1-102(A)(5)]

Failure to Cooperate in Bar Discipline Investigations

[Mass. R. Prof. C. 8.4(g)]

Conduct Prejudicial to the Administration of Justice

[Mass. R. Prof. C. 8.4(d)]

Failure to Cooperate in Bar Discipline Investigations

[S.J.C. Rule 4:01(3)]

SUMMARY:

On March 20, 1995 a successor in interest to the respondent's commercial landlord obtained a judgment against the respondent for unpaid rent in the amount of $5,136.17. As of February 16, 1996, the judgment remained unpaid and on that date the creditor filed a supplementary process action. The respondent did not cooperate with the prosecution of that case. Specifically, the respondent did not appear at an order to show cause hearing scheduled for March 20, 1996 and was defaulted. A capias issued. The respondent appeared in court on May 15, 1996 in response to the capias and paid $500.00 on that day and agreed to pay $100.00 per month thereafter. The respondent did not comply with his agreement and a second order to show cause was marked for hearing for January 21, 1998. The respondent did not appear on January 21, 1998 and a new capias issued. On March 11, 1998 the respondent was brought before the court on the new capias and paid $400.00 plus $75.00 in constable costs and agreed to pay $100.00 per month thereafter. As of May 29, 1998, the respondent had not complied with his second agreement and on May 26, 1998 the creditor filed a third notice to show cause, returnable August 5, 1998. The respondent did not appear on August 5, 1998 and was defaulted. A third capias issued. The respondent, the creditor's attorney and the constable agreed that the respondent would

appear pursuant to the third capias at the court on December 9, 1998. The respondent did not appear as agreed and on that day the presiding justice instructed the creditor's attorney to bring the matter to the attention of Bar Counsel. On December 10, 1998 a "sunset" capias issued.

The respondent failed to respond to correspondence from Bar Counsel dated January 12, 1999, March 30, 1999 and May 26, 1999. On June 4, 1999, after Bar Counsel had filed a petition for administrative suspension against the respondent, the respondent answered the complaint and Bar Counsel withdrew its request for administrative suspension. After responding to Bar Counsel, the respondent filed a motion with the court to review and reduce his monthly obligation consistent with his ability to pay and has since cooperated with the supplementary process proceeding.

The respondent's repeated failure to cooperate with the supplementary process proceeding against him and his failure to comply with court orders, necessitating the issuance of a capias on three occasions, is conduct prejudicial to the administration of justice in violation of Mass. R. Prof. C. 8.4(d). For conduct prior to January 1, 1998, the respondent's conduct was in violation of Canon One, DR 1-102(A)(5). The respondent's failure to cooperate with an investigation of Bar Counsel is in violation of S.J.C. Rule 4:01 ß 3 and Mass. R. Prof. C. 8.4 (g).

The respondent was admitted in 1954 and is semi-retired. In mitigation, during the applicable time and continuing, the respondent's wife is a cancer patient. Her serious illness has required the respondentís time, resources and energy and contributed to the respondentís neglect of his obligations to the court and Bar Counsel. Accordingly, the respondent received an admonition.

ADMONITION NO. 99-74

CLASSIFICATIONS:

Failure to Keep a Client Reasonably Informed About the Status of the Matter

[Mass. R. Prof. C. 1.4(a)]

Failure to Explain a Matter to a Client to the Extent Necessary to Permit A Client to Make Informed Decisions Regarding Representation

[Mass. R. Prof. C. 1.4(b)]

SUMMARY:

In June 1997, the respondent was appointed to represent a client in an appeal of his convictions. On or about December 4, 1998, the respondent filed a brief in the Appeals Court on behalf of the client. The Commonwealth filed its response brief on January 11, 1999. Oral argument was done on November 9, 1999.

At no time prior to filing the brief did the respondent meet with and discuss the case with the client. The respondent never visited the client in jail nor has she spoken to him on the phone regarding the issues that she considered meritorious. The respondent wrote the brief without any direct consultation with the client. The respondent relies on the fact that she has spoken with the clientís relatives and a legal intern at the jail. Even after filing the brief, the respondent made no attempt to meet with the client.

Mass. R. Prof. C. 1.4(a) requires a lawyer to "keep a client reasonably informed about the status of a matterÖ" while 1.4(b) requires the lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The respondent did neither.

The respondent was appointed by the Committee for Public Counsel Services to represent the client. One of the performance standards governing the representation of clients by appellate defenders is that the attorney visit the client after reading the transcripts to "conferÖ with the client about the issues which may be raised on the clientís appeal." Each appellate attorney is given a copy of the written policies and procedures from the Committee for Public Counsel Services.

The respondentís conduct in this matter did not comply with the Committee for Public Counsel Servicesí performance standards for appointed appellate counsel and was in violation of Mass. Rules of Prof. Conduct 1.4 (a) and (b). The respondent received an admonition for the above conduct and was required to attend a CLE course designated by Bar Counsel.

ADMONITION NO. 99-75

CLASSIFICATION:

Trust Account Commingling and Recordkeeping

[Mass. R. Prof. C. 1.15(a)]

Failure to Notify of Receipt or Account to Client or Third Person for Property

[Mass. R. Prof. C. 1.15(b)]

Trust Account Requirements

[Mass. R. Prof. C. 1.15(d)]

SUMMARY:

The respondent acted as the settlement agent for a residential real estate closing on April 30, 1999. She paid the sellers their share of the settlement proceeds and made some other payments, but thereafter failed to timely disburse the remainder of the proceeds.

In the middle of May, 1999, the sellers received a notice that their equity loan payment was late. The HUD-1 settlement statement prepared by the respondent showed that $14,052.42 from the sellerís proceeds should have been used to pay off the equity loan at the time of the closing.

After being notified by the sellerís attorney, the respondent promptly made the loan payoff on May 7, 1999 using the settlement funds which she had retained in her IOLTA Account. In addition, the respondent paid the $31.56 late fee from her own funds.

In or about July of 1999, the sellers received a demand for unpaid real estate taxes on the property. Once again they contacted the respondent, who paid the $801.60 in real estate taxes from the remaining closing proceeds which she had retained in her IOLTA Account. The respondent also paid an additional $ 36.67 to the town for interest and penalties for late payment of the real estate taxes, using funds from her office operating account.

On July 7, 1999, the sellers filed a grievance with Bar Counsel. By the end of July, 1999, the respondent had made the final disbursements from the closing proceeds, with the exception of her fee for title insurance work, which she paid to herself on or about August 23, 1999. Until the final payments were made, the funds were held intact in the respondentís IOLTA Account. There was no evidence that the closing proceeds were misused by the respondent. However, the respondent did acknowledge that she was improperly holding $1,200.00 in earned fees in the IOLTA Account, commingled with client funds.

By failing to fully disburse the closing proceeds for two and a half months after the closing, even after she received notice from the sellers shortly after the closing that the equity loan had not been paid off, the respondent violated Rule 1.15(b) of the Massachusetts Rules of Professional Conduct.

By keeping earned fees in her IOLTA Account, the respondent violated Rules 1.15(a) and 1.15(d) of the Massachusetts Rules of Professional Conduct.

In mitigation, the respondentís delay in making the payments coincided with the dissolution of her law partnership and serious personal illnesses of three close family members. The respondent has contacted Lawyers Concerned for Lawyers (LCL), and has hired an administrative assistant for her solo practice. The respondent also removed the earned fees she was holding in her IOLTA Account, and fully cooperated with Bar Counselís investigation.

The respondent, who was admitted to practice in 1992 and had received no prior discipline, received an admonition for her conduct on the condition that she attend a CLE course designated by Bar Counsel.

ADMONITION NO. 99-76

CLASSIFICATIONS:

Failing to Act Diligently

[Mass. R. Prof. C. 1.3]

Failing to Communicate Adequately with Client

[Mass. R. Prof. C. 1.4]

Failure to Remit Client Funds

[Mass. R. Prof. C. 1.15b ]

IOLTA Violation

[Mass. R. Prof. C. 1.15e]

SUMMARY:

In May 1997, the respondent settled a personal injury automobile collision case on behalf of his client. The respondent appropriately caused his client to execute an acknowledgement and receipt which spelled out all of the disbursements from the gross settlement proceeds. At the time of settlement, there were four outstanding unpaid medical bills. Beginning on June 6, 1997, the respondent retained, with the permission of his client, the sum of $3,980.82 in escrow for the purpose of paying these bills, if the firm were unable to collect from P.I.P. Although the receipt and acknowledgment form given to the client referred to the unpaid bills as "liens", that designation was inaccurate because the client had not signed any so-called "medical liens" and there were no statutory liens filed.

Between June 1997 and July 29, 1998, the respondentís paralegal made calls to the clientís health insurance carrier in an effort either to get the bills paid or to obtain a written declination of payment that could then be forwarded to the P.I.P. carrier. The respondent inquired of his paralegal, from time to time, as to the status of the matter and was informed that the matter was being pursued but that the health insurer was not responding. On March 20, 1998, the respondent wrote to each of the medical providers and requested that they each submit their medical bills to the health insurer and inform the firm whether they received payment or a rejection letter (that could then be forwarded to the P.I.P. carrier).

On July 29, 1998, the respondentís client wrote to the law firm and demanded that the firm return the funds to him. The client indicated that he would execute a release, holding the firm harmless and agreeing to be responsible for the unpaid bills. The firm did not respond to his letter. The client thereafter called the firm on several occasions. The client ultimately reached the firmís then paralegal who told the client that the funds could not be released. In December 1998, after notice of the clientís complaint to Bar Counsel, the respondent paid over the funds. At all times the funds were held in the respondentís IOLTA account.

The respondentís conduct constituted neglect of a legal matter entrusted to him and inadequate client communication, in violation of Mass. R. Prof. C. 1.3 and 1.4. The respondentís failure to promptly remit the funds to his client as requested was in violation of Mass. R. Prof. C. 1.15(b). The respondentís retention in his IOLTA account of escrow funds held long term was in violation of Mass. R. Prof. C. 1.15(e).

The respondent was admitted in 1984 and had no prior discipline. The respondent received an admonition with a requirement that the respondent attend a CLE program designated by Bar Counsel.

ADMONITION NO. 99-77

CLASSIFICATION:

Communication With Person Represented By Counsel

[Mass. R. Prof. C. 4.2]

SUMMARY:

The respondent represented a mother of a ten-year-old child in domestic post- judgment contempt and modification proceedings.

The respondent's client (the "wife") was divorced from her husband on December 5, 1996 after a thirteen day trial. The divorce decree gave to the wife sole legal and physical custody with visitation to the father. Substantial post-divorce proceedings followed. On January 22, 1998 the father filed a complaint for modification, seeking sole physical and shared legal custody of the minor child. On July 7, 1998, due in part to extreme hostilities between the parents, the Court appointed counsel for the child. Counsel was specifically appointed as advocate for the child and not as a guardian or other neutral.

A trial was scheduled for June 14, 1999. At the time, the child was expressing a desire to live with the father. On June 8, 1999 the respondent made a pre-arranged call to her client (the wife). The child was with the wife at the time and the wife still had sole legal and physical custody. The respondent's client "authorized" the respondent to speak with the child directly for the purpose of determining what the child really wanted and for the sake of avoiding another damaging trial. The respondent then had a three-minute conversation with the child. The child later reported the conversation to her father. The conversation as reported by the father was predictably different than the conversation that the respondent reported to Bar Counsel. It is agreed, however, that the respondent discussed with the child a proposed parenting agreement that the respondent thought had been reached with the father's counsel. The respondent conducted the discussion professionally and when the child indicated that she wished the conversation to cease, the respondent honored the request.

Immediately after the conversation with the child, the respondent contacted the child's counsel and notified her of the conversation. In discussing the matter with the respondent, the childís counsel did not validate or repudiate the respondent's conduct. The entire case settled the day of trial.

Even absent coercion or overreaching, the respondent's conduct in contacting the child when the child was represented by counsel was in violation of Mass. R. Prof. C. 4.2. In mitigation, the contact ultimately made no difference in the outcome of the case.

The respondent was admitted in 1974 and has no prior discipline. The respondent received an admonition conditioned on a requirement that the respondent attend a CLE program recommended by Bar Counsel.

ADMONITION NO. 99-78

CLASSIFICATIONS:

Inadequate Preparation

[Disciplinary Rule 6-101(A)(2) ]

Neglect of a Legal Matter

[Disciplinary Rule 6-101(A)(3) ]

Failing to Communicate Adequately with Client

[Mass. R. Prof. C. 1.4 ]

Failure to Return Client Property

[Mass. R. Prof. C. 1.16e ]

SUMMARY:

On December 3, 1992, a woman slipped and fell at the entrance to a mall and suffered a fractured ankle. She claimed that her fall was caused by an unreasonable accumulation of snow and ice. Shortly thereafter, the respondent was retained pursuant to a written contingent fee agreement. Shortly after being retained, the respondent visited the scene and took photographs. Also shortly thereafter, the insurance carrier for the mall took a statement from the respondentís client under oath at the respondentís law office.

The respondent had no further communication with the insurer and took no further action on the case until days before the expiration of the three-year statute of limitations. On December 1, 1995, the respondent filed a civil complaint in the district court. Liability was problematic as there was no evidence of prior warning to the managers of the mall regarding snow accumulation and there was no inherent defect. The respondent did not serve the summons and complaint on the out-of-state defendant within ninety days and on August 21, 1996, the case was dismissed without prejudice on that basis. A copy of the dismissal was mailed to the respondent.

The respondentís client was waiting for a trial date and did not contact the respondent until about two years later. Between October 29, 1998 and November 10, 1998, the respondentís client called the respondent numerous times. The respondent did not return any of his clientís calls.

On November 16, 1998, the client retained successor counsel. The respondentís client first learned that the case had been dismissed, and the reason why, from successor counsel.

On November 23, 1998, successor counsel wrote to the respondent and demanded the file. The respondent did not respond. Successor counsel called the respondent on two occasions thereafter and the respondent did not respond. On December 16, 1998 successor counsel wrote to the respondent again and on December 28, 1998 the respondent finally transmitted the clientís file. Upon review of the file and the court docket, successor counsel determined that a motion for relief from judgement would be futile.

The respondent failure to timely transmit his clientís file to successor counsel was in violation of Mass. R. Prof. C. 1.16(e). The respondentís inadequate investigation and subsequent neglect of a legal matter entrusted to him was in violation of Canon Six, DR 6-101(A)(2) and (3) and Mass. R. Prof. C. 1.4. At a minimum, if the respondent did not wish to pursue the litigation, he was obligated to notify the client in a timely fashion and withdraw. In mitigation, however, the client seemingly did not have a meritorious claim.

The respondent received an admonition conditioned on applying for malpractice insurance in amounts satisfactory to Bar Counsel and attendance at a CLE program designated by Bar Counsel.



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