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Index of 2000 Admonitions


Disciplinary Rule Case Number
DR 1-102(A)(4) 57
DR 2-106(C) 12 , 69 , 70
DR 2-110(B)(4) 05
DR 4-101(B) 05
DR 5-105(A) 05
DR 5-105(B) and (C) 05
DR 6-101(A)(2) 28, 39, 49, 58
DR 6-101(A)(3)

15, 16, 20, 22, 27, 28, 31, 33, 39, 41,45, 48, 50, 56, 57, 58, 62

DR 7-101(A)(1)(2) 15, 16, 22, 57, 62
DR 7-101(A)(3) 15, 22, 57, 62
DR 7-106(C)(1) 51
DR 7-106(C)(4) 51
DR 9-102(A) 41, 44, 55, 66, 74
DR 9-102(B) 55
DR 9-102(B)(2) 41
DR 9-102(B)(3) 10, 1944, 55, 58, 66, 74
DR 9-102(B)(4) 27, 33, 66, 70
DR 9-102(C) 55
DR 9-103( 66
Mass. R. Prof. C. 1.1 04, 07, 11, 21, 28,58, 59
Mass. R. Prof. C. 1.2(a) 22, 67
Mass. R. Prof. C. 1.3 11, 22, 28, 29, 31, 32, 33, 37, 40 42, 45, 47, 48, 50, 53, 56 57, 58, 59
Mass. R. Prof. C. 1.4 02, 22, 29, 32, 47, 48, 57, 61
Mass. R. Prof. C. 1.5(c) 03, 12, 34
Mass. R. Prof. C. 1.15(a) 14, 18, 19, 25, 26, 30, 35, 40, 43, 44, 47, 52, 54, 63, 65 , 72, 75
Mass. R. Prof. C. 1.15(b) 02, 10, 33, 42, 43, 44, 58 , 71
Mass. R. Prof. C. 1.15(c) 03, 10
Mass. R. Prof. C. 1.15(d) 13, 76
Mass. R. Prof. C. 1.15(e) 17, 25, 26, 30, 44, 63, 76
Mass. R. Prof. C. 1.15(f) 14, 18, 19, 25, 26, 30, 35, 43, 44, 52, 54, 63, 65, 72, 75, 76
Mass. R. Prof. C. 1.16(c) 57
Mass. R. Prof. C. 1.16(e)(3) 02
Mass. R. Prof. C. 1.16(d) 47
Mass. R. Prof. C. 1.16(e) 47, 56
Mass. R. Prof. C. 1.7(a) 67
Mass. R. Prof. C. 1.7(b) 67, 68
Mass. R. Prof. C. 3.1 53
Mass. R. Prof. C. 3.3(d) 24
Mass. R. Prof. C. 3.4(c) 09, 60
Mass. R. Prof. C. 3.4 (e) 60
Mass. R. Prof. C. 4.2 46
Mass. R. Prof. C. 5.5(b) 23
Mass. R. Prof. C. 7.1 23
Mass. R. Prof. C. 7.5 23
Mass. R. Prof. C. 8.4(c) 01, 47, 56, 64
Mass. R. Prof. C. 8.4(d) 01, 09, 32
Mass. R. Prof. C. 8.4(g) 36, 43, 48
Mass. R. Prof. C. 8.4(h) 01, 06
Improper Opening(P) [PF 11] 51
Improper Closing(P) [PF 13] 51, 60
S.J.C. Rule 4:01, § 3 32, 36, 43, 48



ADMONITION NO. 00-01

CLASSIFICATIONS:
Conduct Involving Misrepresentation [Mass. R. Prof. C. 8.4(c)]
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)]

SUMMARY:
The respondent, after consultation with his client, filed a petition to partition in the probate and family court, and subsequently in the land court, purporting to bear the signature of his client. Under G.L. c. 241 . 6, the petitioner is required to sign the petition to partition under oath and the signature to this petition did state that it was signed under the penalties of perjury. In fact, the respondent had signed the client's name to the petition, believing that the client had authorized him to do so. The client did want the petition filed, but one cannot sign another person's name under oath, with or without authorization.

By filing the petitions which appeared to have been signed by his client under the pains and penalties of perjury, but which the respondent knew had not been signed by his client, the respondent violated Mass. R. Prof. C. 8.4(c) (conduct involving misrepresentation), Mass. R. Prof. C. 8.4(d) (conduct prejudicial to the administration of justice) and Mass. R. Prof. C. 8.4(h) (conduct adversely reflecting on fitness to practice).

The respondent was admitted in 1960 and has no prior discipline. The respondent received an admonition conditioned on attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 00-02

CLASSIFICATIONS:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)(3)]

SUMMARY:
In February of 1997, a client retained the respondent to represent him in a civil litigation matter. After the client's claim against one defendant was dismissed on a motion for summary judgment, the client discharged the respondent. The client thereafter filed a malpractice suit against the respondent, and filed a grievance with the Board of Bar Overseers.

Among other issues raised, the client claimed that the respondent failed to account for funds paid by the client for costs and expenses. At the outset of the representation, the client and the respondent signed a contingent fee agreement which provided that the client was to pay a $1,000.00 retainer which would be credited towards "reasonable expenses and disbursements." Despite the written language of the contingent fee agreement, the respondent believed that his arrangement with the client was that the $1,000.00 was to be used for the respondent's initial legal fees.

During the course of the representation, the respondent billed the client for a total of $2,559.91 in expenses, as opposed to charging them against the retainer. The client made payments totaling $800.00, which were reflected in the respondent's billing statements. The billing statements did not credit the client with payment of the $1,000.00 retainer.

After the client discharged the respondent in May of 1998, the client demanded that the respondent turn over a complete copy of his file. While the respondent turned over most of the file to the client, he refused to provide copies of deposition transcripts. The respondent claimed he was justified under Mass. R. Prof. C. 1.16(e)(3) in withholding those materials for which the client had not paid the respondent's out-of-pocket costs. However, if the respondent had properly credited the client with the initial payment of $1,000.00 towards expenses, the client would have paid all but approximately $700.00 of the expenses incurred by the respondent, and therefore would have been entitled to receive additional documents.

By failing to credit his client with the $1,000.00 payment for costs and expenses, the respondent failed to provide an accurate accounting of client funds received in violation of Mass. R. Prof. C. 1.15(b). By failing to promptly turn over those deposition transcripts which had been paid for by the client, the respondent violated Mass. R. Prof. C. 1.16(e)(3).

In mitigation, no funds were withheld from the client. When the $1,000.00 retainer was properly applied to costs and expenses, the client still owed the respondent for approximately $700.00 in unpaid expenses. In addition, the client voluntarily dismissed his appeal of the dismissal in August of 1998.

The client also claimed that the respondent failed to adequately communicate with him. The respondent acknowledged that he hung up on the client during two telephone conversations in March and April of 1998, after his relationship with the client had begun to deteriorate. Although the respondent continued to respond to the client's inquiries by written communications, the respondent refused to meet or speak by telephone with the client despite the client's repeated requests. By limiting his communications with his client to writing, and by refusing to meet or speak by telephone with his client, the respondent violated Rule 1.4 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. 00-03

CLASSIFICATIONS:
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]
Trust Fund Accounting and Disputes [Mass. R. Prof. C. 1.15(c)]

SUMMARY:
The respondent represented a family friend in connection with his claim for injuries in a motorcycle accident. The case settled for the policy limits. Although the respondent charged a contingent fee, she did not enter into a written contingent fee agreement with the client. Her conduct in this respect violated Mass. R. Prof. C. 1.5(c).

The client objected to the amount of the respondent's fee. Since there was no written contingent fee agreement, the respondent should have placed the disputed amount into escrow pending resolution of the dispute. Her failure to do so violated Mass. R. Prof. C. 1.15(c).

After the client complained to the Office of Bar Counsel, the respondent placed the disputed amount into escrow.

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


ADMONITION NO. 00-04

CLASSIFICATION:
Failure to Provide Competent Representation [Mass. R. Prof. C. 1.1]

SUMMARY:
On August 23, 1998 the respondent met with a potential client to discuss a possible claim against a national department store chain based on allegations that the woman and her twelve-year-old companion were not provided timely service at a Boston retail store on July 14, 1998 on account of her race.

There is irreconcilable dispute between the client and the respondent regarding the scope of the respondent's undertaking to represent the client as a result of the meeting. The client understood that the respondent was representing her and would file the necessary administrative and civil claims. The respondent claims that he undertook only to review the matter, do legal research and wait to determine if there were any cognizable and provable emotional damages. The respondent did not delineate the scope of the representation in any confirmatory letter or fee agreement.

At or shortly after the initial consultation, the client gave to the respondent a copy of an apology letter from the retail establishment, an unused gift certificate for $50.00, a narrative of the incident and a check for $200.00 to be used to order a copy of a video from NBC Dateline, which had recently aired an undercover expose of discrimination in service at retail stores.

At the meeting of August 23, 1998, the respondent informed the client that there was a general three-year statute of limitations for tort claims. The respondent was unaware, and did not inform the client, of a six month statute of limitations for filing a complaint with the Massachusetts Commission Against Discrimination (MCAD).

Furthermore, the respondent was unaware that the filing of a complaint with MCAD is a jurisdictional prerequisite to filing a claim in court alleging a G.L. c. 151B violation. The respondent met with the client on two subsequent occasions and did not know, and thus did not inform, the client of these facts.

On May 31, 1999 the client filed a pro se request for investigation with MCAD. On July 16, 1999 MCAD dismissed the request because it was not filed within six months and accordingly MCAD lacked subject matter jurisdiction. Shortly thereafter, the client complained to Bar Counsel that she was unable to find other counsel to pursue her claim.

The respondent was admitted in 1990 and concentrates in the area of patent law. He had no prior experience in discrimination matters. The respondent admits that he should have researched whether there were any special statutes of limitation or issues as to exhaustion of administrative remedies issues with respect to discrimination matters. The respondent claims, and the client disputes, that the client told the respondent that she was seeking assistance elsewhere regarding her administrative claims. Regardless, the respondent did not communicate that there might be a special limitation periods applicable to discrimination complaints. To the contrary, the respondent told the client that the tort limitations period was three years.

The respondent's conduct in handling a matter, even on a limited basis, without adequately researching the law or associating with more experienced counsel, was in violation of Mass. R. Prof. C. 1.1. The respondent has no prior discipline. Accordingly, the respondent received an admonition conditioned on attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 00-05

CLASSIFICATIONS:
Failure to Withdraw from Representation [DR 2-110(B)(4)]
Conflict of Interest Between Clients [DR 5-105(B) and (C)]
Successive Representation [DR 4-101(B), DR 5-105(A)]

SUMMARY:
In 1987, the respondent began representing a married couple in an ongoing investigation of the care of their two minor children by the Department of Social Services (DSS). Both members of the couple then had problems which raised issues about their fitness as parents and created the potential for conflict between them. The mother had severe physical and cognitive limitations preventing her from caring on her own for the children, one of whom was also severely disabled. The mother was thus dependent on the father's willingness and ability to act as caretaker for the family, and DSS had threatened custody proceedings if the father left the mother alone with the children. The father was an alcohol abuser with a criminal and psychiatric history and was then facing drunk driving charges on which he was subsequently convicted. The respondent nevertheless determined that the parents' common goal of retaining custody of the children prevailed over any divergence of interests. The respondent did not discuss the divergent interests with the parents before undertaking the dual representation.

In late 1987, DSS filed a care and protection petition after receiving a report that the children had been left in the mother's sole care. The respondent negotiated a resolution based on a plan for increased services, and the petition was dismissed in the spring of 1988 without further proceedings. For about the next eighteen months, the respondent had little or no involvement with the family. As a result, he did not know at the time that the divergence of interests between the parents ripened into an actual conflict in the fall of 1988, when they began accusing each other of physical and mental abuse. The father obtained orders requiring the mother to vacate the home and granting him temporary custody of the children. Although the parents soon reconciled, they continued to have domestic problems. During 1989, the father was accused of failing to obtain adequate medical treatment for the disabled child. In addition, in late 1989, the father was convicted of charges stemming from a burglary and sentenced to one year in jail. The healthy child went to live with relatives, but the disabled child had to be placed in foster care.

The respondent was called back into the case in about early 1990, after the father's incarceration and the child's foster placement. Still unaware of the parents' history of domestic proceedings and marital discord, the respondent resumed his advocacy for both parents to prepare for the return of the disabled child to their custody. However, after the father's release in June 1990, DSS determined that the father was unfit to resume the child's care due to his continued drinking, among other reasons, and the child remained in her foster home on a voluntary placement. At or about that time, despite the parents' apparent united front concerning the children, the respondent became aware of tensions between them, with each parent expressing frustration at the burdens created by the other. Although the respondent then had further indication of differing interests that compromised or likely would compromise his ability to represent both parents, he failed to inquire into those differences before carrying on with the dual representation.

In early 1991, after the father refused to extend the disabled child's voluntary placement, DSS filed a new care and protection petition and obtained her temporary custody. The respondent appeared for both parents in that proceeding. As of the summer of 1991, the respondent had learned of the prior domestic proceedings as well as subsequent allegations by the mother that the father had physically abused her. By then, it should have been obvious to the respondent that regardless of the parents' expressed common goals, their differing interests prevented him from adequately representing each of them in the care and protection proceeding. The respondent did not then withdraw or obtain the clients' consent to the continued representation, and he could not have obtained informed consent under the circumstances.

The respondent represented both parents until March 1992, by which point the parents had separated permanently, with the mother on the street and suspected of drug abuse and the father living with a girlfriend. The respondent finally brought the conflict to the court's attention, and separate counsel was appointed for the mother. The respondent continued to represent the father, however, and turned his attention to regaining the father's sole custody to the total exclusion of the mother. The care and protection proceedings were dismissed and the disabled child returned to the father in December 1992.

The respondent's representation of both parents in the care and protection matters violated Canon Two, DR 2-110(B)(4), and Canon Five, DR 5-105(B) and (C). After March 1992, his continued representation of the father constituted successive representation in violation of Canon Four, DR 4-101(B), and Canon Five, DR 5-105(A). The respondent has no history of discipline. He did not act from wrongful intent, selfish interest, or deliberate exploitation. Rather, his misconduct stemmed from failure to recognize or address the conflict in timely fashion and, after the conflict become obvious, failure to make a timely or complete withdrawal from the case. The respondent received an admonition for this misconduct.


ADMONITION NO. 00-06

CLASSIFICATION:
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4h]

SUMMARY: The respondent represents an estate. In 1991, a buyer purchased certain real estate from the estate and the estate took back mortgages totaling $25,000. When the mortgages came due in 1996, the buyer initially failed to pay them off. The respondent sent several written demands for payment of $25,000. The buyer then obtained alternative financing.

The respondent wrote to the lender in August 1997, indicating that the buyer had asked him to advise the lender as to "what is still owed" and that the buyer was "liable for the principal amount borrowed, $25,000, now due and payable." In response, counsel for the lender wrote to the respondent in September 1997 enclosing a check for $25,000 as "payment in full of [the] mortgage," asking to be advised immediately if the sum was insufficient or otherwise in error, and requesting that the respondent forward a discharge.

The respondent and his client negotiated the check. Eleven days later, the respondent wrote to the buyer indicating that interest was still owed. The respondent offered to accept $2000 to compromise the approximately $4000 claimed as interest. Although the lender protested, the respondent and his client refused to discharge the mortgages. In March of 1999, the respondent's client was paid $2000 and executed the mortgage discharges.

The respondent's letter to the lender indicating that the buyer was liable for the principal balance of $25,000 was at least unintentionally misleading. However, the more serious concern is that, despite the lender's cover letter requesting both to be advised immediately if there was a deficiency and that discharges be provided, the respondent and his client negotiated the $25,000 check and did not advise the buyer or the lender that it was insufficient, or that they would not provide discharges, until after they had the funds. Lawyers need to be able to rely on each other in these circumstances and the respondent's disregard for the conditions under which the check was sent was improper, in violation of Mass. R. Prof. C. 8.4 (h).

The respondent has a previous admonition from 1993 and an informal admonition from 1991, both for neglect. He received an admonition for his misconduct, conditioned on attendance at CLE programs designated by Bar Counsel and including a program on conveyancing.


ADMONITION NO. 00-07

CLASSIFICATION:
Handling Legal Matter Without Adequate Preparation [Mass. R. Prof. C. 1.1]

SUMMARY:
At a client's request, the respondent prepared a deed by which the father of the client's youngest child, from whom she had separated, conveyed to the client as joint tenant an interest in the house in which she and her children lived. The client was worried that grantor's financial difficulties could lead to seizure of her home by creditors. The respondent cautioned the client not to have the deed executed or recorded without mortgagor permission. Unknown to the respondent, the client disregarded the respondent's advice, and the deed was executed and recorded. The respondent did not acknowledge the grantee's signature, and the client herself recorded the deed. Although the registry of deeds returned the executed deed to the respondent's office, it was not brought to his attention.

The respondent also represented this client in connection with a paternity and child support and visitation matter initiated by the father of the client's two oldest children. When the parties and their attorneys met in a four-way pre-trial conference, the respondent made available to the opposing party a financial statement prepared and signed under oath by the client. The client had left blank the portion of the statement asking about real estate assets, indicating that she owned no real estate. The respondent also signed the statement, stating that he had no knowledge that anything contained therein was false, and represented that his client had made full disclosure of her assets. The opposing party then confronted the respondent and his client with a copy of the deed dated eight months earlier conveying the interest in real estate previously described.

The financial statement presented at the meeting was never filed with the court. A financial statement filed with the court three days later included the real estate among the client's assets.

Since this was a paternity action which concerned child support and visitation issues only, with no issues of spousal support or division of marital assets at stake, the non-disclosure was only marginally relevant. In addition, the mortgage, certain liens and creditor collection costs almost matched the total value of the property, leaving the client with, at best, less than $10,000 equity in the property.

The respondent knew that he had prepared a deed at the client's request. When the respondent reviewed the financial statement prepared by the client, he should have inquired about the status of the deed and made sure that the real estate was listed in the client's assets. His failure to do so and his consequent negligent execution of a false financial statement constituted inadequate preparation.

The respondent received an admonition for violation of Mass. R. Prof. C. 1.1.


ADMONITION NO. 00-08

CLASSIFICATION:
Neglect of a Legal Matter [Disciplinary Rule 6-101(A)(3) ]

SUMMARY:
On November 21, 1985, an individual filed a complaint pro se with MCAD against a realty company and an agent alleging that he was discriminated against in his efforts to purchase a condominium unit. There was merit to the allegations and on February 13, 1986 MCAD found probable cause. A probable cause finding entitles the complaining party to a public hearing if the matter is not resolved at a voluntary conciliation.

In February 1987, after the finding of probable cause, the respondent was retained to pursue the client's case on a contingent fee basis. The client elected to take the case out of the administrative process and pursue his remedies in court. On February 20, 1987, the respondent filed a civil complaint in the Superior Court. The respondent limited the allegations to intentional infliction of emotional distress and statutory civil rights violations (G.L. c. 12 . 11I). The respondent did not assert any count under G.L. c. 93A against the real estate company or assert any G.L. c. 151B violation against either defendant.

There were numerous delays in the litigation, some of which were the fault of the respondent and many of which were beyond his control. Finally, on March 20, 1996, the Superior Court entered a pretrial conference order which contained a ruling on the defendants' motions to dismiss. In its order, the court dismissed the civil rights counts on the grounds that the plaintiff could not prove the element of "coercion" within the meaning of the statute. The court did not dismiss the intentional infliction of emotional distress claims but determined that the plaintiff's damages on these counts could not exceed $25,000.00 and accordingly transferred the case to the District Court.

The parties do not agree as to what happened next. They appear to have agreed not to pursue an interlocutory appeal of the dismissal of the civil rights counts. However, the client understood and believed that the respondent would pursue the remaining counts in the District Court. The respondent claims to have had a discussion with the client where it was agreed not to pursue the remaining counts. However, he did not advise the client of this decision in writing, return the client's file, or file a motion to withdraw.

The District Court dismissed the case on January 16, 1997 for failure to prosecute. A copy of the dismissal was sent to the respondent and was in the respondent's file. The respondent did not notify the client of the dismissal.

The respondent's neglect of a legal matter entrusted to him and his failure to adequately communicate with his client, resulting in the dismissal of his client's case, was in violation of Canon Six, Disciplinary Rule 6-101(A)(3).

The respondent was admitted in 1982 and has no prior discipline. The respondent does not currently practice law. Accordingly, the respondent received an admonition for the above violations.


ADMONITION NO. 00-09

CLASSIFICATIONS:
Knowingly Disobeying Rules of Tribunal [Mass. R. Prof. C. 3.4(c)]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]

SUMMARY:
The respondent terminated her representation of a client in December of 1998. The respondent sent the client a letter acknowledging that she owed the client a refund of the unearned portion of her retainer, and told the client that she would be paid in full by January 1, 1999. When the respondent failed to repay the balance of the retainer by March of 1999, the client filed a small claims suit. After the respondent failed to appear at the hearing, the court issued a default judgment in favor of the client. When the respondent failed to pay the judgment or to appear as ordered for the show cause hearing, a capias was issued.

By failing to comply with a court payment order and an order to appear for a show cause hearing, the respondent violated Rule 3.4(c) of the Massachusetts Rules of Professional Conduct. By failing to appear in court on two separate occasions and to pay a lawful court order, necessitating the issuance of a capias, the respondent violated Rule 8.4(d) of the Massachusetts Rules of Professional Conduct.

In mitigation, it was not clear that the respondent ever received the funds which were paid by the client as a retainer to her predecessor counsel. In addition, during the period in question the respondent was experiencing complications with her pregnancy for which she was put on bed rest. The respondent paid the client the amount of the court's payment order.

The respondent, who was admitted to practice in 1996 and had received no prior discipline, received an admonition for her conduct.


ADMONITION NO. 00-10

CLASSIFICATIONS:
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15b]
Trust Fund Accounting and Disputes [Mass. R. Prof. C. 1.15c]
Failure to Maintain Proper Records of Client's Property [DR 9-102(B)(3)]

SUMMARY:
The respondent represented a client in a protracted civil litigation (cross-petitions to partition and an action for corporate dissolution and accounting) culminating in the buy-out of the client's interest in certain properties including a restaurant. The matter was settled for $675,000 and the first installment payment of $37,291 was received by the respondent on behalf of the client in early 1999. The respondent by this juncture claimed to be owed a balance of over $56,000 in fees and had sent bills (albeit not well-itemized) reflecting this claim. When the initial payment of $37,291 was received by the respondent, the respondent advised the client of his intent to apply the sum to his fees. The client made various objections relating to his own need for the funds, as well as to the value and quality of the services rendered, and offered to continue to pay $300 per month. The respondent rejected the client's proposal. After several months of fruitless negotiations, the respondent advised the client that, "lacking any other alternatives," he would apply the $37,291 to his bill. The respondent at this point in the spring of 1999 wrote himself a check in that amount from his trust account.

After the complaint to Bar Counsel was filed and Bar Counsel intervened, the respondent returned the disputed $37,291 to an escrow account. The time elapsed was about two months. The client then objected to the lack of detail on the respondent's very general bills. Again at Bar Counsel's instance, the respondent reconstructed his billing and sent itemized bills to the client.

By writing a check to himself for his fees over the client's objections, the respondent violated Mass. R. Prof. C. 1.15(c) by failing to keep the disputed sum separate until the dispute was resolved. In mitigation, the respondent did make some attempts at resolution before taking action unilaterally and he cooperated when Bar Counsel advised him that the funds would have to be returned to escrow. In addition, the respondent's failure to provide an itemized accounting of his services to the client violated Canon Nine, DR 9-102(B)(3) and Mass. R. Prof. C. 1.15(b). However, he did send the client bills very regularly and without complaint until the first installment of the settlement was received.

The respondent received an admonition for the above violations.


ADMONITION NO. 00-11

CLASSIFICATIONS:
Failure to Provide Competent Representation [Mass. R. Prof. C. 1.1]
Failure to Represent Client Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent failed to provide competent representation in one matter and neglected a second unrelated matter.

In the first matter, on October 29, 1998, the respondent was retained by client who was a citizen of New Zealand. The client was in the United States on a H-1B non-immigrant visa that was tied to her particular employment. Her status was good to February 16, 2000, provided that she retained her current employment. The client initially consulted with the respondent regarding her prospects of obtaining a permanent visa based on unique employment.

On March 19, 1999, the client was offered a new job. On March 23, 1999, the client called the respondent, informed him of the new job offer and indicated that she was about to give four weeks notice. She asked the respondent to extend her H-1B status to her new employment. The respondent erroneously believed that the client's status was good to February 16, 2000. He did not know, and thus did not inform his client, that within ten days of her leaving her employment her status would automatically terminate, and that she then would become an illegal alien subject to immediate deportation. The respondent should have immediately informed the client that her legal immigration status was at risk if she terminated her employment and advised her to consider keeping her old job until a new status tied to her new employment was finalized.

On March 30, 1999, the respondent met with his client and the client gave to the respondent $700.00 for what the respondent and the client incorrectly understood to be a "visa extension". The respondent and the client agreed to meet again on April 13, 1999, but the respondent cancelled the meeting. As of April 26, 1999, the client was getting concerned and called her new employer to ask if the respondent had been in contact to start the paper work. As of April 26, 1999, the respondent had not been in contact with the client's new employer. On April 28, 1999, after she had left her old job, the client consulted with new counsel. At this time, the client learned that her status was that of an illegal alien and that there was no such thing as a visa extension in her circumstances.

Although the respondent had handled various types of discrete immigration matters in the past, he had no experience in employment issues related to immigration and did not research the issues adequately. The respondent's inexperience had consequences. If the client had stayed at her old job, she could have remained in the country until February 2000 and would have been eligible for and likely to receive a one-year extension. As it is, despite the best efforts of her new attorney, the client was required to, and did in fact leave the country by November 4, 1999.

The respondent's handling of an immigration matter that he was not competent to handle without adequate research or associating with experienced counsel was in violation of Mass. R. Prof. C. 1.1.

In the second matter, on March 6, 1998, the respondent was retained to prepare a family trust, record the declaration of trust and convey real estate into the trust. The respondent accepted a flat fee of $500.00 to perform the service. The respondent finished preparation of the trust document and schedule of beneficiaries in August 1998 and the trust document was executed in September 1998. In December 1998, the client wrote to the respondent and complained that the deed into the trust had not been finalized and that the respondent was not returning her phone calls. The respondent did not respond to the correspondence. On March 3, 1999, the client complained to Bar Counsel. On March 15, 1999, Bar Counsel sent a letter to the respondent asking for a response to the complaint within twenty days. The respondent did not reply. On June 3, 1999, Bar Counsel sent to the respondent a follow up letter. The respondent answered on July 14, 1999, apologized and indicated that the deed had been prepared and was recorded on April 22, 1999. Subsequently, the client contacted Bar Counsel and indicated that she was satisfied with the final resolution of the matter. Nevertheless, the respondent's neglect of a legal matter entrusted to him was in violation of Mass. R. Prof. C. 1.3.

The respondent received an admonition in each of the two files conditioned on attendance at a CLE program on immigration law designated by Bar Counsel.


ADMONITION NO. 00-12

CLASSIFICATIONS:
Improper Contingent Fee [DR 2-106(C)]
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]

SUMMARY:
The respondent represented a client in a personal injury matter. Although he took a fee of 1/3 of the settlement proceeds, he did not enter into a written contingent fee agreement with the client. His conduct in this regard violated Canon Two, DR 2-106(C) and Mass. R. Prof. C. 1.5(c).

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


ADMONITION NO. 00-13

CLASSIFICATION:
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]

SUMMARY:
This matter came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of a notice of dishonored check drawn on the respondent's IOLTA account. The account in question was opened as a so-called "client group account," meaning a master account with sub-accounts that earn interest for individual clients on funds that are not held short-term and are not nominal in amount. In an account of this type, the master account is supposed to serve merely as a conduit for the transfer of funds into and out of client sub-accounts.

In the instant matter, there were no open sub-accounts and the master account was instead being used by the respondent as an operating account into which he deposited earned fees and other personal funds and from which he paid personal and business expenses. The respondent apparently intended this account to be an operating account and the checks in fact were labeled "general operating account." The respondent did not attach any significance to the fact that the bank statements designated the account as a client account. The respondent's mislabeling of a business account as a trust account nonetheless violated Mass. R. Prof. C. 1.15(d).

The respondent received an admonition for the above violation, conditioned upon his attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 00-14

CLASSIFICATIONS:
Notice of Dishonored Check [Mass. R. Prof. C. 1.15(f)]
Commingling Clients' Funds with Lawyer's Funds [Mass. R. Prof. C. 1.15(a)]
Failure to Maintain Proper Records of Client's Property [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
This matter came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account. The account in question was in fact a commingled account into which the respondent deposited client funds and earned fees. The check that was returned unpaid was to pay a personal debt and there were no client funds in the account at the time.

The respondent did not always keep adequate track of withdrawals, resulting in the overpayment that led to the dishonored check. Review of the respondent's record keeping practices also showed that the respondent did not retain bank statements or paid checks as required.

The respondent's conduct in this matter constituted commingling and inadequate record keeping, in violation of Mass. R. Prof. C. 1.15(a). In mitigation, the respondent is an inexperienced solo practitioner. He received an admonition for these violations, conditioned upon attendance at a CLE course designated by Bar Counsel and upon obtaining training in trust accounting.


ADMONITION NO. 00-15

CLASSIFICATIONS:
Neglecting a Legal Matter [DR 6-101(A)(3)]
Failure to Represent a Client Zealously [DR 7-101(A) (1) and (2)]
Prejudicing/Damaging Client During Representation [DR 7-101(A)(3)]

SUMMARY:
The respondent represented a client in a claim for damages following an altercation with her commercial landlord. Although the respondent promptly filed suit on the client's behalf and made service on the defendant, he took no further action, and a year later the case was dismissed pursuant to Standing Order 1-88. The respondent took no action to have the case restored until two years later. His motion to vacate the dismissal was opposed by the defendants, and denied by the judge. In addition, the respondent did not respond to the client's inquiries about the status of the case.

The respondent admits that he neglected the client and her case, by failing to keep her informed of its status, and by failing promptly to seek reinstatement of the case. After the client complained to the Office of Bar Counsel, the respondent settled her claim against him.

The respondent received an admonition for inadequate preparation and neglect of a legal matter in violation of Canon Six, DR 6-101(A)(3), and failure to represent a client zealously in violation of Canon Seven, DR 7-101(A)(1), (2), and (3). The respondent agreed to attend a CLE course designated by Bar Counsel.


ADMONITION NO. 00-16

CLASSIFICATIONS:
Neglecting A Legal Matter [DR 6-101(A)(3)]
Failure to Represent a Client Zealously [DR 7-101(A)(1)(2)

SUMMARY:
In or around July 1993, an inmate at the Massachusetts Correctional Institution at Norfolk retained the respondent to assist him in pursuing an action that he had filed pro se against the Department of Correction, two of its employees, and various medical providers. The inmate alleged that his civil rights were being violated by the defendants' alleged wanton and reckless failure to provide him with adequate medical care. The inmate paid the respondent a $2,000 retainer, and the respondent entered his appearance in the action on or about July 30, 1993. The respondent made it clear to the inmate that there was very little likelihood that he would receive any monetary compensation from the defendants. The respondent's goal was to assist the inmate in obtaining treatment for a serious back injury.

The respondent concentrated his efforts on negotiating with counsel for the major medical provider and agreed to dismiss the inmate's claim upon transfer of the inmate to a hospital for treatment. Counsel for the defendant requested that the respondent return a signed stipulation of dismissal. However, the respondent failed to respond to that request.

The respondent had little or no contact with counsel for the other defendants. He filed no discovery requests and failed to respond to a request for interrogatories filed by counsel for one of the medical providers. He also failed to file any opposition to a motion to dismiss, or in the alternative, for summary judgment that was served upon him by counsel for the Department of Correction. Consequently, the motion was filed with the court on October 21, 1993.

The motion to dismiss was allowed as to all defendants on November 15, 1993, although it should only have been allowed as to the Department of Correction and its employees. The other defendants had not filed a motion to dismiss nor had they joined in the Department of Correction's motion. Despite the court's error, the respondent took no action to reinstate the inmate's claims as to any defendant. In or around this same period, the inmate was transferred to a hospital and began receiving medical treatment. The respondent contends that he took no action because the transfer assured that the inmate would receive proper treatment and that the inmate consented to the dismissal. The inmate does not agree that he was informed of or consented to the dismissal. His claim in this respect is supported by the fact that he subsequently consulted other counsel who spoke with the respondent and then reported that it appeared that the respondent had done a great deal of work on the case and that the respondent would continue to try and get the inmate necessary medical treatment as well as some compensation for his injuries.

Subsequent to the dismissal, the inmate contacted the respondent and again expressed his dissatisfaction with the medical treatment that he was receiving. The inmate had not received the diagnostic tests that he had been promised. Accordingly, the respondent served counsel for the defendant medical provider with a motion for court-ordered physical examination. However, the respondent did this without taking any action to vacate the dismissal of the case. The defendant's counsel filed an opposition to the motion, arguing that the case had been dismissed as to all defendants. The motion and opposition were filed in court on March 4, 1994. The inmate then received the diagnostic tests that he desired and no further action was taken on the motion.

The respondent did not adequately communicate with his client, and did not adequately explain exactly what services he intended perform. He did not make it clear to the client that he only intended to pressure the defendants into providing adequate medical care and that he did not intend to pursue the inmate's civil rights claims. If the client did not agree, then the respondent either should have moved to vacate the dismissal and continued to prosecute the case or should have withdrawn. The respondent's conduct in this matter 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) and (2).

The respondent has been a member of the bar since 1974. He has no prior discipline. Accordingly, he received an admonition conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-17

CLASSIFICATION:
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
This matter came to Bar Counsel's attention as a result of the receipt of two notices of dishonored checks from the bank in which the respondent maintained a trust account.

The respondent is a conveyancer. One check was returned unpaid because the respondent was unaware that the lender had not wired the mortgage funds to his trust account. The second check was returned unpaid because the mortgage funds had inadvertently been deposited to a different trust account.

More critically, however, Bar Counsel's review of the respondent's records showed that one of the trust accounts that he was using for conveyancing was a pooled interest-bearing account with interest paid to the respondent. Most of the loans that the respondent closed through this account were referred to him by two different mortgage broker clients. The actual lenders were banks or mortgage companies. In each instance, the respondent had an agreement with the mortgage broker that he could retain the interest earned on the mortgage proceeds in exchange for lower costs.

The mortgage broker in these circumstances is not the "person or entity on whose behalf [the] lawyer or law firm holds funds in trust" and thus is not in fact the client as that term is used for purposes of Mass. R. Prof. C. 1.15. However, the respondent could not personally retain the interest earned even if he had the consent of the underlying lenders and borrowers. The proceeds of each mortgage are held short-term and thus must be deposited either to an IOLTA account or (where the conveyancing account exception applies and a lending bank so directs) to a non-interest-bearing conveyancing account in the lending bank for that bank's loans only. The respondent's conduct in depositing trust funds to an account other than as specified above was in violation of Mass. R. Prof. C. 1.15(e).

In addition, a small percentage of the loans closed through this trust account did not originate with either of the mortgage brokers who had consented to the respondent's retaining the interest earned. The mortgage proceeds for these closings clearly should have been deposited to an IOLTA account and the respondent's failure to do so again violated Rule 1.15(e).The respondent subsequently reimbursed the IOLTA Committee for the amount of interest earned on closings for which there was no semblance of client consent.

The respondent has now agreed to close all loans through his IOLTA account. Under these circumstances, he received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-18

CLASSIFICATIONS:
Notice of Dishonored Check [Mass. R. Prof. C. 1.15(f)]
Commingling Clients' Funds with Lawyer's Funds [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
This matter came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account. The account in question was in fact a commingled account into which the respondent deposited both client funds and certain personal funds. The respondent deposited personal funds into the account each month in order to make a monthly payment to the IRS on a compromise settlement of his unpaid taxes. The check that was dishonored was in fact payable to the IRS and was returned unpaid because the respondent had inadvertently failed to make the covering deposit. The respondent also improperly deposited personal funds to the IOLTA account in order to advance costs on behalf of clients. Such advances must be paid from an operating account, not a trust account.

The respondent's conduct in this matter constituted commingling and inadequate record keeping, in violation of Mass. R. Prof. C. 1.15(a). In mitigation, the respondent has been in practice for over thirty years with no prior disciplinary history. He accordingly received an admonition for the above violation, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-19

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Record-keeping [Mass. R. Prof. C. 1.15(a)]
Failure to Maintain Proper Records of Client's Property [DR 9-102(B)(3)]

SUMMARY:
This matter came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account. The check in question was for $2398 and payment would have caused an overdraft of $761.

The respondent has an active collection practice. He originally believed that the problem stemmed from a late deposit. However, further review of the respondent's trust account records showed various other mistakes that had gone undetected over several years. These problems, all inadvertent, included numerous instances in which costs were paid from the IOLTA account that slightly exceeded the covering deposits and other instances in which deposits were returned for insufficient funds and against which the respondent had already made disbursements. In one other case, the respondent paid himself fees from a retainer that exceeded the amount of the retainer, and in another, he refunded from the IOLTA account a retainer that he had already disbursed to himself. The total of these errors created a shortfall of over $5000 in the trust account, most of which was masked by the float. The respondent did not maintain individual ledgers, and did not adequately reconcile the account, and was thus unaware in given cases that disbursements were greater than receipts. The respondent's conduct in these respects constituted inadequate record keeping, in violation of Mass. R. Prof. C. 1.15(a) and former Canon Nine, DR 9-102(B)(3).

In mitigation, the respondent has been a member of the bar since 1981 with no prior disciplinary history. During the period in question, the respondent was involved in several nonlegal volunteer projects that left him short of time for administrative office tasks. The respondent has since deposited personal funds to his trust account to cover the deficiency. He has also undertaken to reconcile the account monthly and to review the transaction history of each claim before making a disbursement.

Under these circumstances, the respondent received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-20

CLASSIFICATION:
Neglect of a Legal Matter [DR 6-101(A)(3)]

SUMMARY:
On May 24, 1994, the respondent was retained to represent a client in an alien labor certification process and in obtaining permanent residence status. The client was then in the country on an H-1B status, allowing her to work in the country for a limited time. The client resided and was employed in California by a Massachusetts based technology company. On August 10, 1994, the respondent filed the appropriate forms with the State of California Employment Development Department (EDD). After further correspondence, on February 7, 1995, EDD issued its recruitment notice which spelled out the requirements for advertising. The notice required an ad for the position to be published for three consecutive days in a daily newspaper of general circulation. The notice also conspicuously stated that the applicant must return the original tearsheets for each day the ad is published, postmarked within forty five days of February 7, 1995.

On March 21, 1995, the respondent placed the ad with the Los Angeles Times to run on March 23, 24 and 25, 1995, despite a deadline date of March 24, 1995. The tear sheets were returned on May 16, 1995, after the deadline had expired.

On May 10, 1995, EDD notified the respondent in writing that the client's application had been "cancelled" due to the respondent's failure to timely notify the EDD of the respondent's compliance with the advertising requirements of the recruitment notice. The notice was placed in the respondent's file, but apparently not reviewed by the respondent. The cancellation was without prejudice to refiling, but any refiling would require new advertising. The respondent may have been given reason to believe that strict application of the deadline had been orally waived by EDD, although there was no written confirmation of any such waiver.

A copy of the May 10, 1995 cancellation notice was mailed by EDD to the client's employer, who, in turn contacted the client. On May 15, 1995, the client called the respondent and asked what should be done. At the time of the call, the respondent had not examined the file and was unaware of the cancellation and apparently did not understand what the client was asking. The respondent told the client that the respondent had taken care of the matter, believing that the application had been filed and that the missed deadline did not present a problem. The client called in October, 1995, January 1996, March, 1996, twice in May, 1996 and June, 1996, and each time, the respondent or someone at the firm (incorrectly) told the client that the firm was waiting for a response from the Department of Labor or that the application was on course for approval. The respondent also, from time to time, gave the client anticipated dates for approval of the application. At no time during this period was the file examined or the cancellation notice discovered. The respondent continued under the misapprehension that the application was pending until at least November 1996. On August 30, 1996, the respondent's partner wrote a letter to the Department of Labor requesting the status of what the firm believed to be a pending application. The Department of Labor informed the firm that it could not locate any application pending, but did not inform the firm that the original application had been cancelled. The respondent continued to contact officials, in an effort to discover the status of the matter. In November 1996, the respondent resubmitted the forms and attachments, still unaware of the previous cancellation. In June 1997, not receiving any satisfactory information from EDD or the Department of Labor, the respondent submitted a new application.

In April 1998, the client left her employment (while the new application was still pending) and retained new counsel. In May 1999, new counsel complained to Bar Counsel. The respondent's continued misinformation was the result of her neglect in violation of Canon Six, DR 6-101(A)(3). In mitigation, there does not appear to have been any ultimate harm. The client's interests were protected by her existing H-1B status, which was in effect or extended up to the time the client retained new counsel.

The respondent was admitted in 1982 and is experienced in immigration matters. The respondent received an admonition for her neglect and resulting inadequate client communication.


ADMONITION NO. 00-21

CLASSIFICATION:
Failure to represent competently [Mass. R. Prof. C. 1.1]

SUMMARY:
On February 16, 1999, the respondent as counsel to the lender conducted a commercial real estate closing. The borrowers were under time pressure to close because they required the funds by a date certain to settle a pending civil law suit. At the closing, the borrowers executed a promissory note, mortgage, and other loan documents. Despite the fact that he had not received the loan proceeds, the respondent subsequently recorded the mortgage and delivered the original promissory note to the lender. The funds were never made available and the borrowers were forced to hire counsel to pursue their civil remedies.

The respondent's conduct was in violation of the "good funds" statute, G.L. C. 183, . 63B, which prohibits recording a real estate mortgage until the proceeds of the loan in the form of good funds are paid to either the mortgagor, the mortgagor's attorney, or the mortgagee's attorney. In mitigation, the borrowers may have agreed that the loan would be funded after it went on record. Regardless, the respondent admits that he did not advise the parties that he could not lawfully go to record until the loan was funded. He acknowledges that, in his attempt to expedite matters for the borrowers, he made a serious error of judgment.

The respondent failed to provide competent representation, in violation of Mass. R. Prof. C. 1.1. However, while the respondent's conduct had the potential for harm, no harm ultimately resulted. A discharge of the mortgage was obtained and recorded.

The respondent was admitted to practice in 1985 and has no prior discipline. He received an admonition for his conduct, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-22

CLASSIFICATIONS:
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(3)]
Failing to Seek Client's Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
The clients retained the respondent in November 1995 to represent them in a claim against the city in which they reside. The claim arose from damage to the clients' cars from a tree located on the city-owned sidewalk that had fallen on the clients' cars the previous month.

The respondent did send a demand letter to the city's insurer in December 1995, but an adjuster called to deny the claim. The respondent then failed to file suit against the city within the required three-year statute of limitations period. The clients attempted to reach the respondent on many occasions, but the respondent did not return their calls or otherwise communicate with them. The clients only found out that the statute of limitations had expired when they contacted the court.

The respondent admits that she neglected the case after 1995 and that she allowed the three-year statute of limitations to expire without filing suit. The respondent's failure to pursue the clients' case, allowing the statute of limitations to expire, was conduct in violation of Canon Six, DR 6-101(A)(3), Canon Seven, DR 7-101(A)(1), (2), and (3) and Mass. R. Prof. C. 1.2(a), 1.3 and 1.4. In mitigation, the respondent and her family suffered serious medical problems in 1998. However, that fact does not excuse the neglect since the respondent also took no action on the case in 1996 and 1997.

The clients have now sought new counsel to determine and pursue their possible remedies.

The respondent has been a member of the bar since 1994 with no prior discipline. She received an admonition for the above misconduct, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-23

CLASSIFICATIONS:
Assisting Another in Unauthorized Practice of Law [Mass. R. Prof. C. 5.5(b)]
False or Misleading Communication [Mass. R. Prof. C. 7.1]
Firm Names and Letterhead [Mass. R. Prof. C. 7.5]

SUMMARY:
This matter came to Bar Counsel's attention as a result of an inquiry in 1999 from a caller concerning a Social Security "representative" whom the caller had contacted about pursuing a Social Security claim on the caller's behalf. The caller believed that this individual was an attorney. When Bar Counsel called the representative, the telephone was in fact answered "law offices". However, Bar Counsel was told that by the receptionist that the representative was a paralegal and that the respondent was the responsible attorney.

The facts are as follows. The respondent practices Social Security disability law. Commencing in 1996, the respondent sublet space in the offices of another attorney ("the associated attorney") who had the same type of practice. Social Security representatives are not required to be attorneys and the associated attorney had a paralegal "X" who was trained to handle administrative hearings as permitted by Social Security regulations.

The associated attorney became very ill in 1998 and retired from the practice of law. The paralegal then started her own firm in her own name ("X Associates") and effectively took over the associated attorney's Social Security disability practice. X is the "representative" whom the original caller to Bar Counsel had contacted.

Although all persons who eventually became clients of X Associates would sign forms required by the Social Security Administration that identified X as a paralegal, X advertised her business in the Yellow Pages in the attorney section: "DISABILITY/Social Security Denials/ X Associates." The ad carried no indication that X was not an attorney or that X Associates was not a law firm. The respondent was not involved in these decisions.

However, the respondent did continue to rent space in the office suite and to provide assistance to X Associates as needed. Although he has a separate telephone number, the respondent knew that the receptionist answered the telephone lines for both the respondent's office and X Associates as "law offices". The respondent indicated to Bar Counsel that he was "in house counsel" to X Associates and that he did not consider this form of answering the telephone to be inappropriate because he "lends his name" to X Associates. In addition, although the respondent also had his own letterhead, his name ("[Respondent], Esq.") was the first name listed on the letterhead of X Associates. There was no indication on the letterhead that the office was not a law firm and the listing of the respondent's name in that manner created the impression that X Associates was an attorney's office. In fact, the respondent only occasionally gave assistance to X or covered hearings for her when X had a schedule conflict and he received no part of X's fees.

Although Social Security disability claimants can be represented by either lawyers or nonlawyers, X held her practice out in a manner designed to blur the distinction. The respondent's conduct in allowing his name to be listed on the paralegal firm's letterhead, and in further failing to insure that the paralegal firm's telephone line was answered in a manner that was not deceptive, constitutes assisting a nonlawyer in the unauthorized practice of law in violation of Mass. R. Prof. C. 5.5(b). The misleading letterhead also violated the advertising rules, Mass. R. Prof. C. 7.1 and 7.5.

In mitigation, the respondent and the paralegal have since taken steps to insure that the paralegal's firm is not held out as a law office. Each has separate letterhead and the respondent is not listed on the paralegal firm's stationery. The receptionist now answers the paralegal firm's line "X Associates". The paralegal has also discontinued the Yellow Pages advertising.

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


ADMONITION NO. 00-24

CLASSIFICATION:
Candor Towards Tribunal, Ex parte Proceedings [Mass. R. Prof. C. 3.3(d)]

SUMMARY:
On February 8, 1998, the respondent's client as buyer executed a purchase and sale agreement regarding residential property. A deposit of $16,250.00 was paid to the real estate broker.

The purchase and sale agreement contained a standard mortgage contingency clause with a notice date of February 18, 1998. On February 13, 1998, the buyer gave written notice to the seller that she had applied for a mortgage but was denied because she was forced to resign from her new position. The buyer demanded return of the deposit under the mortgage contingency clause. The seller, however, disputed whether the buyer had made diligent and good faith application for a mortgage. The seller informed the respondent that she claimed entitlement to the deposit as liquidated damages. The purchase and sale agreement contained standard language that the broker would hold the deposit in escrow pending mutual instruction in the event of dispute. At all applicable times, the broker in fact held the deposit in escrow and at no time released it to any party.

On February 25, 1998, the respondent wrote to the broker and informed the broker of its legal obligation to hold the deposit in escrow pending resolution, but did not ask the broker to confirm the holding of the funds. The letter asked the broker to contact the respondent if the broker had any questions. The broker did not contact the respondent.

On May 15, 1998, the respondent filed a civil complaint for damages, an affidavit of the buyer and a motion for ex parte real estate attachment and included with the pleadings a copy of the purchase and sale agreement. The respondent orally argued the motion in the district court on May 15, 1998. The basis for the request for emergency relief was that the property was subject to a new sale transaction with a closing date of May 19, 1998.

The respondent represented in her papers that, "In the event that the property is sold or transferred, it is unlikely that the Plaintiff will be able to satisfy any judgment that she might recover against the Defendant." She also stated, "...the only asset to satisfy the Defendant's breach of the agreement is the real estate at..." The respondent asked for an attachment in the amount of $20,000.00.

At oral argument, the respondent similarly did not inform the court that the last that she knew, the deposit was held by the broker, although the fact that the broker at least initially held the deposit was contained in the purchase and sale agreement attached to the pleadings. The court did not specifically ask about the current status of the deposit. The court allowed the motion in the amount of $17,000.00 and a writ of attachment was recorded.

On May 19, 1998, the attachment was dissolved upon motion of the seller when the trial judge learned that the deposit was being held in escrow by a reputable broker and would be available to satisfy any potential judgment.

The respondent's failure to inform the tribunal of the current status of the deposit was in violation of Mass. R. Prof. C. 3.3(d) which requires a lawyer in an ex parte proceeding to inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

The respondent is an experienced member of the bar who had no prior discipline. The respondent received an admonition.


ADMONITION NO. 00-25

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Record-keeping [Mass. R. Prof. C. 1.15(a)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
This matter came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of a three notices of dishonored checks drawn on the respondent's IOLTA account. The first notice was dated May 1998; the check that was dishonored was for $7082 and payment would have caused an overdraft of $6586. The second notice was dated July 1998; the check that was dishonored was for $80,427 and payment would have caused an overdraft of $65,412. The third notice was dated August 1998; the check that was dishonored was for $2047 and payment would have created an overdraft of $1839.

The situation underlying the May 1998 returned check was as follows. The respondent had been using a noninterest-bearing conveyancing account, not an IOLTA account, for closings for multiple lenders. His title insurer informed him that the account had to be an IOLTA account. The respondent therefore opened a new IOLTA account, leaving the old account open for checks to clear. The respondent conducted a closing through the new IOLTA account without realizing that the lender had wired the funds to the old account. As soon as he became aware that a check had been dishonored, he discovered the source of the problem and transferred the funds from the old account to the new IOLTA account. The check cleared upon redeposit.

The July 1998 check was returned because the respondent conducted a closing unaware that he had not deposited the closing proceeds including the mortgage funds. The supporting deposits were not made until five days after the closing. The August 1998 check was returned because the respondent inadvertently had failed to deposit a proceeds check for $43,680 from an April 1998 closing. The respondent found the original check in his closed file. The oversight had been masked by the float in the account until August 1998.

The respondent's failure to insure that "good funds" were on deposit before going to record was in violation of G.L.c.183, .63B. He also failed to reconcile, or adequately, reconcile his account on a monthly basis, allowing the missing $43,680 deposit to remain undetected for over three months. His conduct in both respects constituted inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a). The respondent's use of an account that was not an IOLTA account for closings for multiple lenders also violated Mass. R. Prof. C. 1.15(e).

The respondent has been a member of the bar since 1993 with no prior discipline. He has now retained a bookkeeper and made the needed changes to his record keeping practices. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-26

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Record-keeping [Mass. R. Prof. C. 1.15(a)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
This matter came to Bar Counsel's attention as a result of the receipt of a notice of dishonored check from the bank in which the respondent maintained an IOLTA account. The check in question was in the amount of $4262 and payment would have created an overdraft of $1304.

The account on which the dishonored check was drawn was the respondent's primary IOLTA account, but he also had a second IOLTA account at a different bank. This second bank was also a client and the respondent effectively maintained the second account only to show the client bank that he was a customer. The second account was funded by a transfer of $10,000 in IOLTA funds from the first account but was not otherwise used, such that the $10,000 balance remained intact for most of a year. The amount transferred was a random sum and was not intended to reflect funds of any given client or clients.

The respondent did not maintain a check register, stubs, or journal for the primary IOLTA account. He did maintain individual client ledgers, but these did not show that $10,000 had been transferred from the first IOLTA account to the second or differentiate which clients' funds comprised that sum. Some months after the $10,000 was transferred, the respondent wrote the check on the first account that was returned unpaid by the bank. There were insufficient funds in the account because some of the supporting funds were in the second account. The respondent has now transferred the full $10,000 back to the first account.

There were other problems with the way the IOLTA accounts were maintained. The respondent's record keeping was generally inadequate. The first account was not adequately reconciled, such that small discrepancies routinely went undetected and small balances that should have been returned to clients remained in the account. Sums that were not either nominal in amount or held short term remained in an IOLTA account and were not held, as required, in individual accounts bearing interest for the clients or other beneficiaries. It was in fact because funds were being held longer term in the first IOLTA account that the respondent felt that he could safely transfer $10,000 to the second account. The respondent also on occasion deposited earned fees to the first IOLTA account, thereby improperly commingling his own funds with client funds.

The respondent's conduct in these various respects was in violation of Mass. R. Prof. C. 1.15(a) and (e). He has since modified his record keeping practices to conform to the requirements of the Rules of Professional Conduct. The respondent received an admonition for the above violation, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-27

CLASSIFICATIONS:
Neglect of a Legal Matter [DR 6-101(A)(3)]
Failure to Promptly Remit Funds [DR 9-102(B)(4)]

SUMMARY:
In September of 1994, a client retained the respondent pursuant to a standard written contingent fee agreement to represent him in a personal injury claim resulting from a motor vehicle accident.

The respondent attempted to settle the client's case but in early 1996, the client refused the insurance carrier's purported final settlement offer. The respondent then began drafting a complaint to file suit on behalf of the client; however, the respondent did not follow up on the case and suit was not filed prior to the expiration of the three year statute of limitations.

The respondent received $8,000 on the client's behalf as a result of the client's PIP claims. During 1995, most of these funds were disbursed to the appropriate medical care providers. However, a paralegal responsible for disbursing the PIP funds subsequently misplaced the client's file. As a result, $1,183.56, representing funds due for lost wages, was not disbursed to or for the benefit of the client.

In November of 1999, the client discovered that the statute of limitations had expired, contacted the respondent and shortly thereafter filed a complaint with Bar Counsel. The respondent then located the client's misplaced file and informed the client that he might have a claim against the respondent's firm. Upon auditing the rediscovered file, the respondent realized that $1,183.56 had not been disbursed to the client. On February 7, 2000, this amount was remitted to the client.

The respondent neglected the client's case by failing to file suit and allowing the statute of limitations on the client's action to expire and by failing to adequately supervise the handling of PIP funds. His conduct in these respects violated Canon Six, DR 6-101(A)(3). The respondent's further failure to promptly remit trust funds to his client that the client was entitled to receive, was in violation of Canon Nine, DR 9-102(B)(4).

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


ADMONITION NO. 00-28

CLASSIFICATIONS:
Handling Legal Matter Without Adequate Preparation [DR 6-101(A)(2)]
Neglecting A Legal Matter [DR 6-101(A)(3)]
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 represented a client in connection with post conviction matters in federal court.

More than a year before the respondent was retained, the client pleaded guilty to one drug-offense charge and was sentenced to 22 years in jail. Although there were no grounds for appeal, there was a possibility of pursuing allegations of prosecutorial misconduct in the government's prosecution of the client because a government informant who was wired by the state police participated in discussions with the client's trial attorney.

After the client's conviction, the respondent agreed to file a writ of habeas corpus pursuant to 28 U.S.C. sec. 2255 on the grounds of prosecutorial misconduct. However, he did not file the motion until approximately a year after he was retained. Relief was denied by the trial court, which found that the client had received competent legal advice and had made a knowing plea and that any prosecutorial misconduct could have been cured by suppression of information acquired by the government informant. The trial court then denied issuance of a certificate of appealability. The order denying the issuance was upheld by the First Circuit Court of Appeals.

The client then asked, and the respondent agreed, to file a writ of certiorari with the U.S. Supreme Court. However, the respondent apparently did not file the writ until after the time for filing had elapsed and it was therefore summarily rejected.

The respondent's delay in filing the writ of habeas corpus and his subsequent failure to timely file the writ of certiorari was in violation of Canon Six, DR 6-101(A)(2), (3) and Mass. R. Prof. C. 1.1and 1.3. In mitigation, certiorari was unlikely to have been granted even if the writ had been timely filed. The respondent accordingly received an admonition.


ADMONITION NO. 00-29

CLASSIFICATIONS:
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 1999, a Tennessee attorney retained the respondent pursuant to a contingency agreement to represent him in the collection of two out-of-state judgements against a Massachusetts resident. The client forwarded to the respondent all necessary documents pertaining to the debts, including certified copies of the court judgments. The respondent attempted to contact the debtor at his last known address but these attempts were unsuccessful. The respondent did not follow up on the case or file suit on behalf of the client or inform the client that the debt was not collectible.

Between February and November of 1999, the client sent six letters to the respondent requesting information regarding the status of the case. In addition, the last three letters requested the return of all case-related documents. The respondent failed to respond to each of these letters, and in December, the client filed a complaint with Bar Counsel.

In January of 2000, the respondent returned the client's documents and sent the client a written apology. In mitigation, the respondent offered to purchase the two judgments from the client, less the one-third contingency fee the client would have paid the respondent to collect the debts. The client accepted this offer, and the respondent tendered a check for two-thirds of the total value of the two judgments, including accrued interest, to purchase the accounts originally forwarded to him for collection.

The respondent's failure to follow up on the client's case constitutes neglect in violation of Mass. R. Prof. C. 1.3. The respondent's failure to respond to multiple letters from the client inquiring as to the status of his case constitutes failure to communicate adequately with the client in violation of Mass. R. Prof. C. 1.4.

The respondent received an admonition conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 00-30

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Record-keeping [Mass. R. Prof. C. 1.15(a)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
This matter came to Bar Counsel's attention as a result of the receipt of a notice of dishonored check from the bank in which the respondent maintained an IOLTA account.

At the time that the notice was received, the respondent's record keeping was generally inadequate. As a result, his original explanation of the cause of the overdraft was incorrect. The respondent did not maintain individual client ledgers, such that he was unable to break down the account balance by client. Disbursements, especially for filing fees, were frequently made before the supporting deposits. The account also was not adequately reconciled, such that small discrepancies routinely went undetected.

The respondent's conduct in these various respects was in violation of Mass. R. Prof. C. 1.15(a) and (e). He has since received training in trust accounting and modified his record keeping practices. The respondent received an admonition for the above violation, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-31

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3] Neglect of a Legal Matter [DR 6-101(A)(3)]

SUMMARY:
The respondent was nominated to serve as the executor under the will of a woman who died on September 6, 1995. The respondent was appointed temporary executor on March 1, 1996, and executor on June 12, 1996. The respondent filed a probate inventory on February 23, 1997 indicating that the estate consisted of personal property in the amount of $783,876.15 and real property in the amount of $154,000.

One of the two primary beneficiaries of the estate filed a grievance with the Office of Bar Counsel in June of 1999. She indicated that the estate had not been fully settled, that the respondent was not returning telephone calls from herself and another beneficiary, and that the Commonwealth of Massachusetts had reported abandoned property in the decedent's name.

Between June of 1996 and September of 1997, the respondent disbursed $607,994.38 to the two primary beneficiaries of the estate. He also paid over $260,000 for state and federal taxes, and disbursed $25,000 to another legatee.

The respondent indicated that he had not completed the settlement of the estate because he was trying to help the estate recover $4,851.00 from a title insurance company based on a check which was originally written in 1992 but never negotiated. In addition, he was attempting to negotiate stock certificates owned by the decedent which were valued at approximately $6,000.00.

The respondent had represented the decedent in the years prior to her death. She had been named as the sole beneficiary and executrix of the estate of her sister Mary who died in 1987. On February 12, 1992, almost five years after Mary's death, a title company sent a check in the amount of $4,851.00 and payable to Mary to the respondent's office address. This check was the refund of certain funds held in escrow in connection with the sale of real property in Washington, D.C. The letter stated that the title company would be closing its file on the matter.

Despite the title company's warning that they were closing their file, the respondent ignored this correspondence until August of 1992. The respondent then wrote to the title company enclosing the check and asking that it be reissued in the name of Mary's sister (the decedent). No supporting documentation such as Mary's will or death certificate were included with the correspondence.

This request went unheeded and the respondent ignored the matter for the next ten months. In June of 1993, the respondent communicated with the title company again and sent them some additional documentation. The respondent took no further action on this matter until December 17, 1997, over a year and a half after the respondent was appointed executor of the decedent's estate. The respondent sent letters to the title company in December of 1997, and May and August of 1998, but received no answers. Thereafter he concluded that for the amount of money involved, he could not justify pursuing the matter.

The respondent also needed to negotiate stock certificates owned by the decedent. Although the respondent began serving as executor on March 1, 1996, he did not attempt to negotiate the stock certificates July 15, 1998. However, in 1997, the certificates escheated to the Commonwealth. The respondent is currently pursuing efforts to recover the stock certificates from the Commonwealth's abandoned property division.

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).

The respondent, who was admitted to practice in 1988 and had no prior disciplinary history, received an admonition for his conduct.


ADMONITION NO. 00-32

CLASSIFICATIONS:
Lack of Diligence [Mass. R. Prof. C. 1.3]
Inadequate Client Communication [Mass. R. Prof. C. 1.4]
Failure to Cooperate [S.J.C. Rule 4:01 § 3 ]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]

SUMMARY:
On April 2, 1998, a client hired the respondent to represent her in a potential bankruptcy proceeding. The client gave to the respondent a $350.00 check at that time with a notation that indicated that the check represented a flat fee for filing a chapter 7 petition. The respondent wrote letters to the client's known creditors informing them of their obligation to deal directly with him. In August 1998, a creditor contacted the client and informed her that she was being sued due to a delinquent bill. The client tried to contact the respondent about the creditor, but could not because the respondent moved, failed to inform her of his forwarding address and his phone had been disconnected.

The respondent lost contact with his client after he moved and did not notify her of his change of address. At about the time that the client had filed her complaint with Bar Counsel (October 23, 1998), and before the respondent had notice of the complaint, the respondent refunded the retainer and the client retained new counsel.

The respondent's failure to do any substantial work to prepare the client's bankruptcy filing (or research alternatives) and his failure to adequately communicate his whereabouts to his client, 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 respondent was admitted to the Bar in December 1996 and started a private practice out of his apartment. In August 1998, due to disputes with his landlord, the respondent moved to a new address. The respondent did not notify Bar Counsel of his move within thirty days as required by S.J.C. Rule 4:02 . 1. The respondent did not notify Bar Counsel or the Board of his new address until February 9, 1999. As a result, Bar Counsel spent substantial time and resources attempting to locate the respondent and was required to file with the S.J.C. a petition for administrative suspension from the practice of law due to the respondent's failure to answer complaints pending against him. The respondent's conduct in this regard was in violation of S.J.C. 4:01 § 3 and Mass. R. Prof. C. 8.4(d).

The respondent received an admonition for his misconduct conditioned upon reaching agreement with Bar Counsel as to terms and conditions if the respondent decides to resume private practice.


ADMONITION NO. 00-33

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Neglect of a Legal Matter [DR 6-101(A)(3)]
Failure to Promptly Distribute Trust Funds [Mass. R. Prof. C. 1.15(b)]
Failure to Promptly Distribute Trust Funds [DR 9-102(B)(4)]

SUMMARY:
The respondent was named as the successor trustee for a revocable trust and a nominee trust created and funded by the donor prior to her death. The donor, who was the initial trustee of each trust, died on January 23, 1997. The revocable trust named three relatives of the decedent as beneficiaries, each to receive $5,000. The remainder of the trust assets, valued at approximately $600,000, was to be divided equally among six named charitable beneficiaries.

On October 20, 1997, nine months after the decedent's death, the respondent sold the decedent's house. The buyer's attorney withheld $24,000 from the sales proceeds pursuant to an escrow agreement with the respondent, pending the obtaining by the respondent of a release of estate tax lien for the property. The buyer's attorney gave the respondent a check for $82,852.94, representing the seller's net proceeds. The respondent never deposited this check in the trust account, instead allowing it to go stale. In December of 1997, the respondent made distributions to each of the pecuniary beneficiaries of the trust.

In November of 1998, the decedent's former attorney filed a grievance with the Office of Bar Counsel, alleging that the respondent had failed to fulfill his fiduciary obligations with respect to the trust. Subsequently, one of the beneficiaries also filed a grievance with Bar Counsel.

On or about December 30, 1998, after Bar Counsel notified the respondent of its investigation, the respondent sent the buyer's attorney a copy of the certificate releasing the estate tax lien and the stale proceeds check, and asked him to issue a new check for the proceeds and the escrow. On or about January 4, 1999, the buyer's attorney sent the respondent a check for $106,852.94, representing replacement funds for the stale check plus the $24,000 escrow.

The respondent did not begin making distributions to the charitable beneficiaries until December of 1998. By April 19, 2000, the respondent had distributed over $600,000 to the beneficiaries, exhausting all of the trust assets.

The respondent filed an estate tax return for the estate, and fiduciary income tax returns for the trust in 1997 and 1998. Neither the estate nor the trust incurred any penalties or interest for late filings. However, due to the respondent's failure to distribute trust property in a timely manner, the respondent had to file a fiduciary tax return for 1999. The respondent retained an accountant for this task, who was paid from trust monies.

In April of 2000, the respondent prepared his final trust accounting, which he distributed to the beneficiaries. By failing to settle the estate or to terminate the trust in a timely manner, the respondent neglected a legal matter in violation of Mass. R. Prof. C. 1.3 and its predecessor, Canon Six, DR 6-101(A)(3).

By failing to promptly distribute trust assets, the respondent violated Mass. R. Prof. C. 1.15(b) and its predecessor, Canon Nine, DR 9-102(B)(4).

In mitigation, the respondent has now made all payments to the beneficiaries. Further, the estate did not incur any tax penalties or interest as a result of his neglect and the respondent did not charge any fee for his work as trustee.Finally, the respondent was admitted to the bar in 1964 and has no prior disciplinary history.

The respondent received an admonition for his conduct.


ADMONITION NO. 00-34

CLASSIFICATION:
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]

SUMMARY:
The respondent represented a client against his former employer in connection with a workers compensation claim lump sum claim and a civil claim for wrongful termination. The client was receiving disability benefits, to be repaid from any lump sum settlement of the workers compensation claim. A settlement was reached, with the bulk of the recovery allocated to the civil claim. The comp claim settled for $1, and thus the client was not required to repay the disability benefits.

Because of the simultaneous pendency of the compensation case, the respondent neglected to execute a fee agreement with the client as to the wrongful termination case. However, notwithstanding the absence of a written contingent fee agreement, the respondent initially charged the client a fee of 1/3, which he later reduced to 28% of the settlement proceeds.

By taking a contingent fee in a civil case without signing a contingent fee agreement, the respondent violated Mass. R. Prof. C. 1.5(c).

Although the respondent does have prior unrelated discipline, in the circumstances of this case he received an admonition for his conduct.


ADMONITION NO. 00-35

CLASSIFICATIONS:
Dishonored check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Record-keeping [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
This matter came to Bar Counsel's attention as a result of the receipt of a notice of dishonored check from the bank in which the respondent maintained an IOLTA account. The check in questions was for $285 and payment would have created an overdraft of $219.

The respondent is primarily a conveyancer and maintains another IOLTA account for his conveyancing practice. The account on which the dishonored check was drawn ("the second IOLTA account") was used for personal injury cases and other client matters apart from conveyancing. Because the respondent and his staff were focused on the account used for conveyancing and because the second IOLTA account was used comparatively infrequently, the respondent's record keeping for the second IOLTA account was generally inadequate. The second IOLTA account was not properly reconciled, such that small discrepancies routinely went undetected. In some matters, there were overpayments to clients or creditors, and in others, small balances that should have been returned to clients remained undisbursed.

The respondent's conduct in these various respects was in violation of Mass. R. Prof. C. 1.15(a). He has now made the necessary changes to his record keeping and has disbursed any monies due clients. He therefore received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-36

CLASSIFICATIONS:
Failure to Cooperate in Bar Discipline Investigations [S.J.C. Rule 4:01 § 3]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]

SUMMARY:
Between July and September 1999, the respondent failed to reply to three letters from Bar Counsel requesting an answer to a complaint. The underlying matter was subsequently referred to another jurisdiction in which the respondent is also a member of the bar. However, the respondent's failure to cooperate with Bar Counsel in Massachusetts was in violation of Supreme Judicial Court Rule 4:01, § 3 and Mass. R. Prof. C. 8.4(g). The respondent received an admonition for these violations.


ADMONITION NO. 00-37

CLASSIFICATION:
Neglect of a Legal Matter [Mass. R. Prof. C. 1.3]

SUMMARY:
In March 1998, the respondent was retained to prepare a client's 1997 federal income tax return. A question arose as to the tax implications of a an early withdrawal in the amount of $15,333.07 that the client had made in 1997 from an Individual Retirement Account. The client used the funds to purchase a home as a first time home buyer and it was believed that the use of the funds for this purpose might reduce the client's tax liability under a recently enacted Federal law. Because the respondent was retained late in the tax season and the issue presented required research, the respondent appropriately filed and obtained an automatic extension for filing, good to August 15, 1998. Between March 1998 and August 1998, the respondent researched the law and obtained information from the custodian of the IRA account. However, the respondent was still uncertain, as of August 15, 1998, whether the withdrawn funds were taxable, and if so, in what amount.

Despite his uncertainty as to the law, the respondent did not request any extension beyond August 15, 1998. After August 15, 1998, the respondent conferred with an accountant and conducted further research and by March 1999 determined that it was likely that the withdrawal would be fully taxed under the law as it applied to the withdrawal. However, the respondent did not give the matter the priority that was required. The respondent did not prepare the return and cause it to be filed until July 1999, and only after repeated oral and written protests from his client.

In September 1999 and November 1999, the client was notified by the IRS of a substantial penalty for late filing and threatened with a tax lien. After the client complained to Bar Counsel, the respondent paid the full penalty from personal funds.

The respondent's failure to file for an additional extension or, alternatively, his failure to timely file the 1997 return (subject to later amendment, if necessary) constituted neglect of a legal matter entrusted to him, in violation of Mass. R. Prof. C. 1.3.

The respondent was admitted in 1975. In 1987, the respondent received a private reprimand for unrelated conduct that occurred in 1981. The respondent received an admonition in this matter, conditioned upon a requirement that the respondent attend a CLE program designated by Bar Counsel.


ADMONITION NO. 00-38

CLASSIFICATIONS:
Mass. R. Prof. C. 1.1 [Lack of Competent Representation]
Mass. R. Prof. C. 8.4(d) [Conduct Prejudicial to the Administration of Justice]

SUMMARY:
The respondent represented a wife in an acrimonious divorce proceeding. The complaint to Bar Counsel was filed by the husband. While the respondent represented the wife in the divorce litigation, he also represented a lumber and hardware supply company in a collection matter against the husband of his client. The husband had had an open account with the company for building supplies and had run up a debt of about $10,000.00.

In July 1999, and with the wife's consent, the respondent filed a suit against the husband on the collection matter in the local trial court. The case was tried on September 20, 1999. The husband represented himself and, despite overwhelming evidence to the contrary, defended on the basis that not all supplies were delivered and that he had not received invoices. In his cross examination of the husband, the respondent asked the husband to authenticate a copy of a long form financial statement that the husband had filed in the Probate and Family Court. The respondent then asked the husband to read that portion of the statement where he listed the debt to the lumber company. The debt was listed on the financial statement as approximately $10,000.00. The respondent's purpose in this line of questioning was to challenge the husband's credibility with respect to the husband's general denial of the debt. The husband objected on the grounds that he had been told by an attorney to report any potential claim or lawsuit on his financial statement. The Court determined that the statement would speak for itself. The Court asked the husband if he signed the document and the husband said that he did. The Court then allowed a copy of the financial statement to be introduced as a trial exhibit over the husband's objection. Judgment entered against the husband on the debt, plus interest and attorney fees.

At the time of trial, the respondent was unaware of Supplemental Probate Court Rule 401which provides that domestic relations financial statements shall be impounded. Further, the Court did not mark the husband's financial statement as impounded or segregate it as required by the Rule. Nevertheless, if the lumber company had been represented by any other attorney, the information in the financial statement would not have been available absent a court order.

The respondent's use of an impounded document without a court order is conduct prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4(d). The misuse of the financial statement reflected the respondent's ignorance of the law, rather than any deliberate flouting of his legal or ethical obligations. However, the fact that the respondent was unaware that financial statements are impounded also constitutes inadequate preparation, in violation of Mass. R. Prof. C. 1.1.

The respondent has no prior discipline or pending matters. The respondent received an admonition for violation of Mass. R. Prof. C. 1.1 and 8.4(c), conditioned upon obtaining malpractice insurance in an amount satisfactory to Bar Counsel and attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 00-39

CLASSIFICATIONS:
Inadequate Preparation [DR 6-101(A)(2)]
Neglect of a Legal Matter [DR 6-101(A)(3)]

SUMMARY:
In February 1995, a client retained the respondent to file an insurance claim related to damage resulting from gasoline and water damage at the client's grocery store in connection with an attempted arson. The respondent had previously represented the client regarding the acquisition of the store and the transfer of its liquor license. Shortly after making a demand upon the insurance company, law enforcement authorities began investigating the client in connection with charges of attempted arson. The insurance company sent a letter to the respondent informing him that it would withhold a determination on the claim until the criminal investigation of the client was fully resolved. The respondent, who did not practice criminal law, appropriately urged the client to seek an attorney with a criminal law experience and recommended a lawyer known to the respondent to concentrate his practice in criminal matters. In February 1996, after he was arraigned, the client retained the recommended attorney to represent him in the criminal case. The recommended attorney limited the scope of his representation with the client to the pending criminal case. The client expected the respondent to continue as counsel with respect to the civil matter after the criminal matter resolved.

The client's insurance policy contained a clause imposing a two-year limitation on the filing of claims in court. Because the insurance company was refusing to proceed with the claim until the criminal case was concluded, the respondent failed to closely review the client's insurance policy and as a result was unaware, and failed to inform the client, of the two-year limitation contained in the policy for filing a civil claim.

The criminal case culminated in a three-day trial in September of 1997. The client was acquitted of attempted arson and insurance fraud. During the trial, a representative of the insurance company testified for the Commonwealth that the client had not filed a civil claim within the two-year time limitation contained in the policy. This was the first time that the client or the criminal defense counsel became aware of the two-year limitation on any insurance claims. After the trial, the criminal defense counsel obtained the insurance policy from the respondent and sent a demand letter to the insurance company. In response, the insurer reiterated its position that the two-year period in which a claim could be filed in court had elapsed. The client at that point made a decision not to pursue the insurance claim further.

The respondent's conduct in failing to file suit, or to specifically advise the client to file suit, within the limitations period specified in the policy constitutes neglect of a legal matter entrusted to him, in violation of former Canon Six, DR 6-101(A)(2), (3). In aggravation, the respondent has a prior admonition from 1994 for failing to file a tax abatement application within the allowed time period. In mitigation, in the instant matter, the respondent was concerned about the client's possible criminal exposure and therefore did not focus on the civil issues while the criminal case was pending. In addition, the respondent no longer is in private practice. Under these circumstances, the respondent received an admonition for the violations alleged.


ADMONITION NO. 00-40

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Excessive Fee [Mass. R. Prof. C. 1.5(a)]

SUMMARY:
The respondent represented a client in connection with negotiating disposition of federal charges that he had entered the country after having been deported. The client had pled to the charges before the respondent was retained. The only issue to be determined was what the client's sentence would be and the terms on which he would be released to the INS for deportation. The respondent charged the client a flat fee of $20,000 for his services.

The respondent met three times with the client, who was in custody pending disposition. The respondent's boilerplate discovery request was rejected by the court because he had not complied with an earlier court-imposed deadline. The respondent did very little other work and failed to negotiate a downward departure in sentencing for which the client was eligible. He and the client signed a standard plea agreement prepared by the Assistant U.S. Attorney handling the case which did not contain the downward departure. Successor counsel subsequently obtained the downward departure for the client.

After the client complained to the Office of Bar Counsel, the respondent first refunded approximately $10,000, and subsequently refunded an additional $5,000.

The respondent's conduct in this matter constituted lack of diligence, in violation of Mass. R. Prof. C. 1.3. The respondent's fee prior to the refund was clearly excessive, in violation of Mass. R. Prof. C. 1.5(a).

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


ADMONITION NO. 00-41

CLASSIFICATIONS:
Neglect of a Legal Matter [DR 6-101(A)(3)]
Failure to Safeguard Trust or Escrow Funds [DR 9-102(A)]
Failure to Place in Safekeeping Client's Property [DR 9-102(B)(2)]

SUMMARY:
The respondent represented the executor of an estate for a decedent who died in 1980. The executor made distributions to himself, but did not distribute estate assets to his brother, who was the other beneficiary of the estate. The executor died in 1992 with the estate still open.

The respondent did not notify the other beneficiary of the executor's death, and did not respond to a letter from him about the status of the original estate. The respondent also did not seek the appointment of a successor fiduciary to assume responsibility for the estate settlement. The respondent's neglect in this regard violated Canon Six, DR 6-101(A)(3).

Between 1987 and 1992, the respondent received dividend checks for stocks held in the name of the decedent. Because of his concerns about the executor's arguable mismanagement of estate assets, he did not deposit the dividend checks in a client funds account. Instead, he kept the checks unnegotiated in the file and allowed a large number of dividend checks to go stale and ultimately to escheat to the Commonwealth. The respondent's neglect and mishandling of client funds violated Canon Six, DR 6-101(A)(3) and Canon Nine, DR 9-102(A).

Believing that he did not have authority to act after his client's death, the respondent for more than five years failed to respond to correspondence from the corporations notifying him that stock certificates and dividend checks in his possession were about to revert by escheat to the Commonwealth of Massachusetts. The respondent's actions in this regard again violated Canon Six, DR 6-101(A)(3) and Canon Nine, DR 9-102(B)(2).

In mitigation, a successor fiduciary was able to sell some of the stock, and to pay the assets to the remaining beneficiary. Many of the stocks had increased in value over time. She is pursuing return of the remaining estate assets from the Commonwealth's abandoned property division.

The respondent received an admonition for his conduct.


ADMONITION NO. 00-42

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Promptly Distribute Trust Funds [Mass. R. Prof. C. 1.15(b)]

SUMMARY:
The respondent represented the executor of the estate of a decedent who died on March 8, 1997.

After the executor's account was allowed on June 4, 1998, the respondent prepared distribution checks payable to the six residuary beneficiaries and to the respondent for his legal fee. The executor signed the checks on June 17, 1998, and negotiated the distribution check payable to himself. The respondent negotiated the check representing his fee, but inadvertently failed to mail the five checks representing distributions to the five remaining residuary beneficiaries. Each residuary beneficiary was to receive $52.96. The respondent inadvertently placed the five checks in the file, where they remained until he received notification from Bar Counsel of a complaint from a beneficiary, seventeen months later.

The respondent failed to take steps to close out the estate account after preparing what should have been the final distributions to the residuary beneficiaries. If he had done so, he would have realized that none of the checks had been cashed or mailed. The respondent also would have realized that in calculating the amount of distributions to be made to the residuary beneficiaries, he had failed to include interest accrued to the account.

On July 20, 1999, one of the residuary beneficiaries died without receiving her check.

By letter dated August 13, 1999, the attorney for another residuary beneficiary wrote to the respondent, informing him that his client had not yet received her distribution check, and asking when it would be sent. The respondent did not reply to this letter, or to telephone calls from the residuary beneficiary.

On November 13, 1999, Bar Counsel wrote to the respondent to inform him of a grievance filed by one residuary beneficiary. Thereafter, on or about December 3, 1999, the respondent mailed to that beneficiary the original distribution check dated June 17, 1998 which had been signed by the executor. The respondent redated the check, which had become stale. When the beneficiary attempted to deposit the redated check, her bank would not accept it because the change to the date had not been initialed by the payor. The respondent did not at this time immediately mail the other checks to the remaining four beneficiaries.

On or about January 29, 2000, the respondent prepared and the executor signed new checks to each of the five beneficiaries in the amount of $112.96 or $112.95 each. The additional funds represented interest which had been accruing in the estate account from the opening of the account. These checks and the payment of an additional $983.92 in fees to the respondent exhausted the funds in the estate account.

By failing to settle the estate in a timely manner or to respond to inquiries from a residuary beneficiary who reported that she had not received her final distribution, the respondent neglected a legal matter in violation of Mass. R. Prof. C. 1.3. By failing to make distributions to the residuary beneficiaries for over a year and a half after the final account was allowed until after being contacted by Bar Counsel, the respondent violated Mass. R. Prof. C. 1.15(b).

The respondent, who was admitted to the bar in 1974 and had no prior disciplinary history, received an admonition for his conduct.


ADMONITION NO. 00-43

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Recordkeepting [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)]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01(3)]

SUMMARY:
The respondent received an admonition for issues relating to his maintenance of his trust account in two matters. In the second matter, the respondent also failed to reply to Bar Counsel's inquiries, necessitating the issuance of a subpoena to compel his appearance.

The first matter came to Bar Counsel's attention in August 1999 pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of a notice of dishonored check drawn on the respondent's IOLTA account.

Conveyancing, both residential and commercial, constitutes a significant portion of the respondent's practice. This was the fourth dishonored check notice received by Bar Counsel during the past three years, all related to the respondent's real estate practice. In each instance the underlying explanation was fairly simple. On two occasions the respondent or his paralegal negligently placed a check for closing proceeds in the file and failed to make the deposit which corresponded to checks issued. On two other occasions the funds were wired by the lender in error into one of the respondent's client accounts different from that which had been designated by him. The respondent did not confirm the deposits and did not notice the error until after he had issued checks from a different account.

The second matter stems from a complaint filed by a title examiner for fees owed for title reports prepared during 1996, 1997 and 1998. The cost of the title examination was included in the fee which the respondent received at closing. In connection with disposition of the second matter, the respondent paid the title examiner the amount owed.

The respondent's repeated failure to ensure receipt and collection of trust funds prior to making disbursements against those funds constituted inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a). His failure over a prolonged period to disburse to the title examiner funds owed for title reports constituted failure to account for client funds, in violation of Mass. R. Prof. C. 1.15(b). The respondent's failure to cooperate with Bar Counsel is conduct in violation of Mass. R. Prof. C. 8.4(g) and Supreme Judicial Court Rule 4:01, sec. 3. As a condition of the admonition, the respondent was required to attend a CLE course designated by Bar Counsel and to obtain training in trust account maintenance.


ADMONITION NO. 00-44

CLASSIFICATIONS:
Failure to Safeguard Trust or Escrow Funds [DR 9-102(A)]
Failure to Maintain Proper Records of Client's Property [DR 9-102(B)(3)]
IOLTA Violation [DR 9-102(C) and Mass. R. Prof. C. 1.15(e)]
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)(3)]
Dishonored Check Notice [Mass. R. Prof. C. 1.15(f)]

SUMMARY:
The respondent, who has a conveyancing practice, received an admonition for inadequate oversight of client funds.

The respondent held funds in escrow following a closing, in part to cover the cost of curing several title defects, in part because the sellers could not agree on an appropriate division between them of closing proceeds. Although the respondent was directed to place the funds in a separate interest bearing escrow account, the funds were placed in his IOLTA account, where they remained for 18 months. His conduct in this respect violated both the terms of the escrow agreement, and of DR 9-102(C) and Mass. R. Prof. C. 1.15(e), which require an attorney to place in a separate interest bearing account client funds which are more than nominal in amount and held for more than a short period of time. The respondent also delayed in responding to the sellers' request for an accounting, thereby violating DR 9-102(B)(3) and Mass. R. Prof. C. 1.15(b), which requires an attorney to account for fiduciary funds upon request.

In addition, the respondent did not exercise adequate oversight of his IOLTA account. He failed on occasion to deposit all closing proceeds prior to making disbursements, and consequently drew upon funds held for other clients, including these sellers. In doing so, the respondent violated DR 9-102(A) and Mass. R. Prof. C. 1.15(a).

In addition, Bar Counsel received several notices of dishonored check pursuant to Mass. R. Prof. C. 1.15(f). The respondent had again issued checks against closing proceeds before corresponding deposits were made and cleared, thereby violating Mass. R. Prof. C. 1.15(a).

In connection with disposition of these matters, the respondent hired a part-time bookkeeper, obtained software for his conveyancing practice, and obtained training in record keeping.


ADMONITION NO. 00-45

CLASSIFICATIONS:
Neglecting a Legal Matter [DR 6-101(A)(3)]
Neglecting a Legal Matter [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent neglected the administration of two related estates for which he served as attorney.

The decedents, a mother and daughter, were co-owners with another relative of certain real property in Massachusetts. In 1994 the respondent took over the settlement of the mother's estate from another attorney in his firm. The respondent did not obtain an M-792 release of Massachusetts estate tax lien to clear the title to the property owned by the estate until 1997, three years after he was retained, and after a complaint was filed with Bar Counsel. The home could not be sold until the release of lien was obtained.

The respondent also delayed the ancillary administration of the estate of the daughter, who lived in Georgia. He did not file the petition for probate until three years after he was initially retained, and after a complaint was filed with Bar Counsel.

By neglecting a legal matter, the respondent violated Canon Six, DR 6-101(A)(3) and Rule 1.3 of the Massachusetts Rules of Professional Conduct.

The respondent was admitted to practice in 1994, and has 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. 00-46

CLASSIFICATION:
Communicating with an Adverse Party [Mass. R. Prof. C. 4.2]

SUMMARY:
The respondent represented a woman in defense of a civil suit brought by her former boyfriend. During a break in the boyfriend's deposition, the boyfriend, whom the respondent knew was represented by counsel, engaged the respondent in a conversation outside. The boyfriend asked the respondent how his former girlfriend was doing, and the respondent told him that he was concerned about the girlfriend and the effect that the law suit was having on her. The respondent advised the boyfriend to drop the lawsuit if he were concerned about his girlfriend.

The respondent did not obtain the prior consent of the boyfriend's counsel before communicating with the boyfriend about the subject matter of the representation.

By communicating with an adverse party known to be represented by counsel about the subject of the representation, without the consent of that counsel or authorization of law, the respondent violated Rule 4.2 of the Massachusetts Rules of Professional Conduct.

The respondent, who was admitted to practice in 1992 and had no prior disciplinary history, received an admonition for his conduct.


ADMONITION NO. 00-47

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]

SUMMARY:
On October 17, 1997 a client retained the respondent to assist her in negotiating a compromise with the I.R.S. concerning past taxes owed. In November of 1997, the respondent, who is also a C.P.A., obtained the client's tax records from the I.R.S., but then did not prepare an offer in compromise to file with the I.R.S.

On or about May 11, 1998, the respondent sent the client a letter in which he stated, "I have yet to receive formal confirmation from the Internal Revenue Service but the indication is they will be denying the offer to compromise." The respondent's letter suggested that a formal offer of compromise had been made, when in fact no such written offer had been filed by the respondent.

When the client called on another occasion, the respondent led her to believe that he had received a letter of rejection from the I.R.S., when he had not.

In July of 1998, the client contacted the respondent again and learned no progress had been made. She then discharged the respondent, and asked for her file. The respondent promised to send a final bill, but he did not send the client the final bill or her file.

When the client did not receive any papers in the mail, she tried repeatedly to contact the respondent by leaving messages on his answering machine but got no response. In November of 1998 she spoke to the respondent's secretary and asked for her file, and was assured it would be sent to her. The client did not receive her file.

After more unsuccessful attempts to reach the respondent by telephone, and one more conversation with his secretary, in late January of 1999 the client spoke with the respondent directly and requested her file. The respondent told her that her file was misplaced but that he would try and find it as soon as he could.

On or about March 14, 1999, the client sent the respondent a letter by certified mail requesting a copy of her file, including the rejection letter from the I.R.S. The respondent did not respond to this letter, or forward the file.

On May 26, 1999, the client filed a grievance with the Office of Bar Counsel. After receiving a letter from Bar Counsel, the respondent sent the client a copy of her file in June of 1999.

In May of 2000, with the assistance of a new accountant, the client was able to successfully negotiate an offer of compromise with the I.R.S.

By writing the May 11, 1998 letter which led the client to believe that a formal offer in compromise had been filed with the I.R.S. when it had not, and thereafter letting the client mistakenly believe that he had received a rejection letter from the I.R.S., the respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Massachusetts Rules of Professional Conduct.

By neglecting his client's tax matter, the respondent violated Rule 1.3 of the Massachusetts Rules of Professional Conduct. By failing to communicate adequately with his client, the respondent violated Rule 1.4 of the Massachusetts Rules of Professional Conduct. By failing to adequately safeguard his client's file, the respondent violated Rule 1.15(a) of the Massachusetts Rules of Professional Conduct. By failing to return his client's file promptly upon request, the respondent violated Rules 1.16(d) and (e) of the Massachusetts Rules of Professional Conduct.

The respondent, who was admitted to practice on December 19, 1996 and had received no prior discipline, received an admonition for his conduct, on the condition that he attend a CLE course designated by Bar Counsel.


ADMONITION NO. 00-48

CLASSIFICATIONS:
Neglecting a Legal Matter [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]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]
Failure to Cooperate in Bar Discipline Investigations [Supreme Judicial Court Rule 4:01, sec. 3]

SUMMARY:
The respondent received an admonition for his neglect of an estate, and for his failure to cooperate with Bar Counsel in two matters.

The respondent did not initiate probate of the estate until approximately a year and a half after he received the will, then failed to make service of an initial citation and had to obtain a second citation. As a result, the client was not appointed administrator of the estate until almost two and a half years after the respondent received the will.

After the client was appointed administrator, the respondent delayed another ten months before initiating the process to transfer stock certificates owned by the decedent. Several months before the respondent wrote to the corporation with the decedent's certificates, much of the stock had escheated to the Commonwealth.

The client subsequently discharged the respondent. The respondent agreed to pay the legal fees of the client's successor counsel.

The respondent's conduct in this matter constituted neglect, in violation of, Canon Six, DR 6-101(A)(3), and failure to act with reasonable diligence, in violation of Mass. R. Prof. C. 1.3. The respondent also failed to keep the client reasonably informed about the status of the matter, in violation of Mass. R. Prof. C. 1.4.

The respondent did not respond to Bar Counsel's inquiries regarding his handling of the estate until served with a subpoena, and did not respond to Bar Counsel's inquiries regarding another matter until threatened with a subpoena, thereby violating Mass. R. Prof. C. 8.4(g) and Supreme Judicial Court Rule 4:01, sec. 3.

The respondent has no prior discipline. He carries malpractice coverage adequate for any claims which might be made by his client. He has agreed to pay the fees of the client's successor counsel. He therefore received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-49

CLASSIFICATION:
Handling a Legal Matter Without Adequate Preparation [DR6-101(A)(2)]

SUMMARY:
In 1986, the respondent was retained to represent a 17 year old defendant charged with armed robbery and first degree murder. The respondent interviewed the defendant's parents, who told him that the defendant had received treatment for drug and alcohol abuse and had received mental health counseling at the suggestion of the police.

In his dealings with the defendant, the respondent saw no indication of serious mental illness or incompetence, and, for that reason, he did not investigate the information received from the parents, nor did he attempt to obtain any information about the defendant's mental condition from the local mental health center. The respondent also chose not to ask his client to submit to a psychiatric evaluation. Instead, the respondent presented a defense at trial which suggested that a co-defendant had committed the murder after the defendant left the premises following the robbery. The respondent's decision not to investigate the possibility of a defense based on his client's mental condition was not reasonable, given the strength of the evidence that the client had participated in the murder.

After he was convicted, the defendant retained new counsel, who filed a motion for new trial based on the respondent's ineffective assistance for not pursuing a defense based on insanity or diminished mental capacity. The respondent fully cooperated with new counsel.

The motion judge denied the motion for new trial, finding that the respondent's failure to pursue information concerning the defendant's mental capacity at the time of the offense was not reasonable, but that the defendant had not been prejudiced because the psychologist who testified at the motion for new trial was not credible. The Supreme Judicial Court agreed with the motion judge's finding that an "'ordinary, fallible lawyer' would have at least undertaken an investigation [of] the viability of presenting expert psychiatric testimony" in the client's defense but reversed the denial of the motion for new trial because the defendant was entitled to have a jury and not the judge determine the weight of the expert testimony.

At the new trial, the defendant's new counsel presented a defense of lack of criminal responsibility. The new attorney called the same expert psychologist who had testified at the motion for new trial. At the new trial, the expert testified that the defendant suffered from a combination of mental diseases or defects which left him unable to conform his conduct to the requirements of the law. The jury found the defendant guilty of first degree murder.

In the circumstances of this case, the respondent's failure to investigate his client's history of mental health treatment and his failure to ask the client to submit to a psychiatric evaluation constituted a violation of Canon Six, DR 6-101(A)(2). The respondent received an admonition for this conduct.


ADMONITION NO. 00-50

CLASSIFICATIONS:
Neglect of a Legal Matter [DR 6-101(A)(3)]
Neglect of a Legal Matter [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent represented the executor of an estate for a decedent who died on March 21, 1993.

On March 31, 1993 the respondent filed a petition to probate the will with the Middlesex Probate Court. On April 8, 1993 the respondent's client was appointed temporary executor of the decedent's estate. His appointment as temporary executor was extended by the court three times through April 4, 1994. On January 21, 1994 the respondent filed an estate tax return with the Massachusetts Department of Revenue. On February 14, 1994 the respondent filed a certificate releasing the Massachusetts estate tax lien and obtained a license to sell the real property owned by the estate. On September 14, 1994, the petition for probate of the will was allowed, and on November 15, 1994, the executor's bond was filed. By June 2, 1995, the primary beneficiary had received $150,571.99 in distributions from the estate.

Over the next two years, the respondent neglected the settlement of the estate. In 1997, the primary beneficiary filed a complaint with Bar Counsel alleging that the respondent and the executor had failed to timely complete the settlement of the estate. In July of 1997, the respondent reported that a final account would be filed within thirty days. Thereafter, the respondent discovered a lost certificate for 100 shares of stock valued at approximately $2,250.00 which had to be liquidated before the estate could be closed. The liquidation of these shares was delayed through 1998 due to the respondent's errors in sending the stock certificate to the wrong address, and his failure to properly carry out other administrative tasks related to the liquidation of the stock.

In January of 1999, the respondent sent the beneficiary a check for the proceeds from the sale of the stock, along with a draft of the final account. The respondent did not file the First and Final Account with the Probate Court until on or about June 27, 2000, over seven years after he began work on the estate.

By failing to settle this simple estate matter in a timely manner, the respondent neglected a legal matter in violation of Rule 1.3 of the Massachusetts Rules of Professional Conduct and Canon Six, DR 6-101(A)(3). The respondent received an admonition for his conduct.


ADMONITION NO. 00-51

CLASSIFICATIONS:
Alluding to Matters not supported by Admissible Evidence [DR 7-106(C)(1)]
Giving Personal Opinion of Case/Credibility of Witness [DR 7-106(C)(4)]
Improper Opening(P) [PF 11]
Improper Closing(P) [PF 13]

SUMMARY:
The respondent was the prosecutor in a criminal trial in 1994. The defendant was convicted of distribution of a class D controlled substance, but the conviction was reversed in 1998. The appellate court found that the cumulative effect of the respondent's repeated and unwarranted characterization of the defendant as a career drug dealer deprived the defendant of a fair trial.

The court found that the respondent made an improper and inflammatory statement and described evidence in his opening that he was not in a position to produce, in violation of Canon Seven, DR 7-106(C)(1) and PF 11. During the trial he attempted to "communicate (with the jury) by innuendo" when he cross-examined the defendant and asked questions unsupported by any evidence that he expected the defendant to deny, in violation of Canon Seven, DR 7-106(C)(1). In his closing argument the respondent made statements that were not supported by the trial evidence, and vouched for the credibility of prosecution witnesses in violation of Canon Seven, DR 7-106(C)(4) and PF 11 and 13.

In mitigation, the respondent had only been a member of the bar for approximately three years when the misconduct occurred. He worked in a busy district court during the transition from the de novo trial system to the new trial system and had not received sufficient training or supervision. He has no prior or subsequent history of discipline. The respondent acknowledged his misconduct, indicating that it was not intentional but due to poor judgment and inexperience. Accordingly, the respondent received an admonition conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-52

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Recordkeeping [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
Pursuant to Mass. R. Prof. C. 1.15(f), this matter came to Bar Counsel's attention as a result of receipt from the depository bank of a notice of dishonored check drawn on the respondent's IOLTA account. The check in question was for $500.00 and payment would have resulted in an overdraft of $232.50.

The overdraft occurred because in February 1999 the respondent erroneously deposited a client retainer of $5,000.00 into her personal checking account instead of her IOLTA account. By March 2000, the respondent had earned the retainer and drafted and negotiated a check payable to herself from her IOLTA account, on the mistaken belief that the retainer has been initially deposited into that account. At no time did the respondent, or her firm, use any portion of the $5,000.00 that was on deposit in the personal account.

The respondent failed to notice the incorrect balance in her IOLTA account for over one year because she did not reconcile her check register against her individual client ledgers or her monthly bank statements. The respondent's deposit of client retainer funds into a personal account constituted commingling in violation of Mass. R. Prof. C. 1.15(a). The respondent's inadequate recordkeeping was also in violation of Mass. R. Prof. C. 1.15(a).

The respondent is in solo private practice and concentrates in family law. During the last year she has been substantially cutting back on her practice. The respondent has now made the necessary changes to her record keeping. Accordingly, the respondent received an admonition conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-53

CLASSIFICATIONS:
Inadequate Preparation [Mass. R. Prof. C. 1.3]
Filing Unwarranted Claims [Mass. R. Prof. C. 3.1]

SUMMARY:
Beginning in February 1997 the respondent represented a husband in post judgment divorce matters pending in the Probate and Family Court. This was an acrimonious divorce subject to several prior contempts and modifications. On January 28, 1998 the respondent filed a complaint for modification on behalf of his client. The complaint asked the court to order the wife to transfer an interest in real estate to the client and for certain financial adjustments and relief. However, the complaint for modification was not carefully drafted; it incorrectly described the procedural history of the case and did not clearly articulate the relief sought. Most significantly, the complaint failed to address the fact that there existed a final order of the Court dated October 28, 1996 requiring the client to transfer the same property to the wife immediately in consideration of past child support arrearage. The respondent did not adequately investigate and research the prior procedural history of the case prior to filing the complaint for modification. His conduct in this regard was in violation of Disciplinary Rule 6-101(a)(2) (for conduct prior to January 1, 1998) and Mass. R. Prof. C. 1.3 (for conduct after January 1, 1998).

The wife's attorney responded to the complaint for modification and in addition subsequently filed a complaint for contempt alleging that the client had failed to obey certain court orders. The complaint for contempt was not pursued.

On September 10, 1998 the parties appeared for a pretrial conference. At that time, the client, upon the recommendation of the respondent, entered into a stipulation of dismissal of the complaint for modification with prejudice. The stipulation was filed with the court and entered as a judgment. The respondent advised his client to stipulate to a dismissal to "cut his losses" and because the potential of having attorney fees assessed against his client, after a full hearing, was substantial.

Subsequently, the client pressured the respondent to file a motion for relief from judgment. On December 14, 1998 the respondent did so and on January 20, 1999 the wife's attorney filed an opposition to the motion for relief, a motion for counsel fees under G. L. c. 231,§6F and an affidavit of the wife in support of the motion for counsel fees. The affidavit of the wife correctly outlined the procedural history of the case. On March 23, 1999 the Court entered an order for counsel fees against the client in the amount of $1,087.50. This result was predictable given that the judgment of dismissal was filed pursuant to a stipulation, each party had the benefit of counsel prior to filing and the complaint for modification as drafted was of borderline merit to begin with.

Despite the fact that the respondent warned his client of the likelihood that counsel fees would be awarded if he pressed the motion for relief, the motion was frivolous. The respondent's conduct in filing the motion was therefore in violation of Mass. R. Prof. C. 3.1.

On October 12, 1999 the client complained to Bar Counsel, not about the assessment of attorney fees, but because the respondent had not responded to the client's repeated requests for a copy of the motion and order that required him to convey the property. The client did not trust that such an order existed. The client referred to these documents as a "stipulation". There was miscommunication between the respondent and his client resulting in the client's incorrect belief that any such court order could have only resulted from a stipulation that he had signed. After the complaint was filed, the confusion was resolved.

The respondent was admitted in 1990 and has no prior discipline. He accordingly received an admonition conditioned upon attendance at a CLE program recommended by Bar Counsel.


ADMONITION NO. 00-54

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 Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of a notice of dishonored check drawn on the respondents' IOLTA account. The deficiency in the account was caused by the fact that one of the respondents had issued a check to a seller in connection with a real estate conveyance before the certified check from the buyer had been deposited into the respondents' IOLTA account. Upon notice of the deficiency, the respondent immediately contacted the seller and offered to reimburse any costs incurred.

Bar Counsel had received prior dishonored check notices related to the respondents' handling of conveyancing funds. One of those notices resulted from the bank wiring funds to the wrong account, another from the bank wiring funds to the wrong law firm. Like the current problem, in both instances the respondents had failed to assure that mortgage funds were timely deposited prior to going to record and disbursing funds, thereby violating the so-called "good funds" statute, G.L. Ch. 183, sec. 63B. Both of those files were closed without disciplinary action, and in both instances the respondents were cautioned regarding their obligation to confirm the deposit of mortgage funds with the bank in which they maintained their trust account. The respondents acknowledged that they were aware of their obligation in this regard.

The respondents received an admonition for inadequate recordkeeping, in violation of Mass. R. Prof. C. 1.15(a).


ADMONITION NO. 00-55

CLASSIFICATIONS:
Commingling Clients' Funds with Lawyer's Funds [DR 9-102(A)]
Failing to Maintain Proper Records of Client's Property [DR 9-102(B)(3)]
IOLTA Violation [DR 9-102(C)]
Dishonored Check [DR 9-103(B)]

SUMMARY:
This matter came to Bar Counsel's attention through a dishonored check notice, filed pursuant to DR 9-103(B). The respondent had failed to notice that electronic withdrawals in payment of a small life insurance premium were being made from his IOLTA account rather than his personal account, and as a result his account went into overdraft.

The respondent maintained commingled accounts. He paid some personal bills from his IOLTA account, and placed some client funds from settlement of small tort cases in his office account, from which he made disbursements for costs and the client's portion of the settlements. In addition, he failed to reconcile his IOLTA account on a regular basis, did not withdraw fees as earned, and did not keep adequate records of his handling of client funds.

At the time of the events in question the respondent was a relatively new attorney, and only practicing law part-time. He attended a CLE course designated by Bar Counsel and obtained training in trust account management.

The respondent's conduct in this matter violated DR 9-102(A) and (C) [failure to place client funds in a client account, commingling client funds with an attorney's funds] and 9-102(B)(3) [failure adequately to account for handling of client funds.] He received an admonition for his misconduct.


ADMONITION NO. 00-56

CLASSIFICATIONS:
Neglecting A Legal Matter [DR 6-101(A)(3)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]
False Statements to Third Person [Mass. R. Prof. C. 4.1(a)]
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]

SUMMARY:
In November, 1992, the respondent agreed to represent a client in a property dispute regarding a right of way easement to which she was being denied access. By the end of 1994, the respondent concluded that the matter was not likely to be resolved by negotiation. On September 18, 1997, he commenced a declaratory judgment action in the Land Court. He advised the client that he would file a summary judgment motion with the Land Court seeking a determination that her right of way existed as a matter of law.

Aside from filing the declaratory judgment action in 1997, the respondent neglected the case after 1994. In addition, on several occasions in 1998 and 1999, he made affirmative misrepresentations to the client or to others on her behalf that he was in the process of filing the summary judgment motion or that the motion had already been filed.

On or about February 25, 1999, a friend of the client contacted the Land Court and learned that no summary judgment motion had been filed. The respondent continued to represent to the client that he was going to file the summary judgment motion, but did not do so. Beginning in March of 1999, the client requested a complete copy of the file. In June of 1999, the client retained successor counsel, who also wrote to the respondent requesting the file. When the respondent failed to turn over the file, the client filed a complaint with Bar Counsel. Thereafter, on or about October 29, 1999, the respondent delivered the file to successor counsel.

Upon reviewing the file, successor counsel found that the respondent had done a large amount of title work, which he has used in his own handling of the matter. In addition, while the case has been ongoing, the client has continued to have access to the right of way in dispute. The respondent also did not ever charge a fee for his work on the matter.

By failing to file a motion for summary judgment for over six years, the respondent neglected a legal matter entrusted to him in violation of Rule 1.3 of the Massachusetts Rules of Professional Conduct and its predecessor, Canon Six, DR 6-101(A)(3). By misrepresenting to his client and others the status of his work on the client's claim, the respondent violated Rules 8.4(c) and 4.1(a). By failing to promptly return his client's file upon request, the respondent violated Rule 1.16(e).

The respondent, who was admitted to practice in 1973 and had no prior disciplinary history, received an admonition for his conduct.


ADMONITION NO. 00-57

CLASSIFICATIONS:
Neglecting a Client [DR 6-101(A)(3)]
Failure to Represent a Client Zealously [DR 7-101(A)(1)(2)]
Prejudicing/Damaging Client During Representation [7-101(A)(3)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Conduct Involving - Dishonesty, Fraud, Deceit, Misrepresentation [DR 1-102(A)(4)]
Withdrawal without Tribunal's Permission [Mass. R. Prof. C. 1.16c]

SUMMARY:
On or about May 18, 1995, the respondent was retained to represent a client in a personal injury matter arising out of a fall that occurred in a supermarket on October 3, 1994. The client claimed that a pre-existing medical problem with her eyes was aggravated by the fall. The respondent wrote to the supermarket's insurer in September 1995. The insurance adjuster replied in December 1995 and made a settlement offer of $1,000. The client rejected the offer, as she was still receiving medical treatment for her injury. The respondent advised the insurer that she would forward the client's final medical records when she received them and would discuss settlement at that time.

In May 1996, the insurer wrote to the respondent and stated that they were still waiting for additional medical bills, and requested that she forward final bills so that settlement could be discussed. The respondent replied on or about July 16, and stated that the client's medical treatment had concluded. She suggested a settlement in the amount of $3,000. The insurer did not answer the respondent's letter, and the respondent failed to pursue the matter further.

The client contacted the respondent in or around December 1997, requesting a status report on her case. The respondent wrote back to the client and explained that there were many problems with the case. First, the client did not have an expert who would state that her medical condition was a result of her fall, and finding such an expert was likely to be difficult and expensive. Second, the defendant supermarket had dissolved as a corporation and had filed for bankruptcy. Thus, there was no one to sue and were no assets from which to recover a judgment. The respondent advised the client that her only options were to try to recover from the insurer and/or to file an action against the insurer pursuant to MGL Chapter 93A. The respondent failed to advise the client that the statute of limitations on the personal injury case had expired in October 1997.

The respondent sent the insurer a 93A demand letter in February 1998, but she took no further action to pursue the matter. Eventually, the respondent placed the file in storage. She did not advise the client that she was no longer pursuing the case, nor did she inform her that the statute of limitations on the personal injury claim had expired in October 1997. The client did not learn this information until she contacted another attorney in or around March 1998. That attorney contacted the respondent and requested the client's file. The client then discovered that the that the respondent had failed to pursue her claim, had placed her file in storage and had allowed the statute of limitations to run.

By failing to pursue the client's claims and failing to communicate with the client, the respondent violated Canon Six, DR 6-101(A)(3), Canon Seven, DR 7-101(A)(1),(2) and (3) and Mass. R. Prof. C. 1.3 and 1.4. By advising the client in December 1997, that there were problems with the case without informing her that the statute of limitations had expired, the respondent made a misrepresentation by omission, in violation of Canon One, DR 1-102(A)(4), and by withdrawing from the case without protecting the client, the respondent violated Mass. R. Prof. C. 1.16c.

In mitigation, the respondent agreed to pay the client $2,000 to compensate for her failure to prosecute the client's personal injury claim. The client agreed to this settlement. Further, the respondent has been a member of the bar since 1986. Although she has previously been cautioned regarding neglect and failure to promptly return an unused filing fee, she has no prior discipline. Accordingly, she received an admonition for her conduct in this matter, conditioned upon her attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-58

CLASSIFICATIONS:
Handling Legal Matter Without Adequate Preparation [DR 6-101(A)(2)]
Neglecting a Legal Matter [DR 6-101(A)(3)]
Failure to Maintain Proper Records of Client's Property [DR 9-102(B)(3)]
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]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]

SUMMARY:
The respondent is the guardian of an elderly woman resident in a nursing home. He delayed several years in filing guardianship accounts, and even after he filed accounts failed to request citations to have the accounts allowed.

The respondent's conduct in this matter constituted inadequate preparation and neglect of a legal matter in violation of Canon Six, DR 6-101(A)(2) and (3) and Mass. R. Prof. C. 1.1 and 1.3, and failure adequately to account for clients' funds in violation of Canon Nine, DR 9-102(B)(3) and Mass. R. Prof. C. 1.15(b).

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


ADMONITION NO. 00-59

CLASSIFICATIONS:
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, an experienced attorney, is successor trustee of a trust established under the will of a 1975 decedent. By the terms of the trust its assets were to be distributed to the decedent's two grandchildren when they turned 21. The elder grandchild turned 21 in 1990, the younger in 1993. The respondent did not make timely distributions as directed by the trust.

The trust's predecessor trustee died in 1991, prior to filing any accounts. The respondent did not file any of his predecessor's accounts until 1997. The respondent did not file any of his own accounts until 2000. Although the respondent caused stock owned by the trust to be distributed to the beneficiaries in 1994, he did not distribute remaining assets until after the mother of the beneficiaries complained to the Office of the Bar Counsel in 2000.

The respondent received an admonition for inadequate preparation, in violation of Mass. R. Prof. C. 1.1, and failure to act with reasonable diligence and promptness, in violation of Mass. R. Prof. C. 1.3. In connection with disposition, the respondent agreed to attend a CLE program on estate administration.


ADMONITION NO. 00-60

CLASSIFICATIONS:
Knowingly Disobeying Rules of Tribunal [Mass. R. Prof. C. 3.4(c)]
Alluding to Matters not supported by Admissible Evidence [Mass. R. Prof. C. 3.4(e)]
Special Responsibilities of a Prosecutor [Mass. R. Prof. C. 3.8(i)]
Improper Closing(P) [PF 13]

SUMMARY:
The respondent was the prosecutor in a criminal jury trial in January 1998. The defendant was convicted of masked armed robbery and he appealed. The conviction was upheld by the Appeals Court in 1999. However, the court criticized the respondent's trial conduct. The court found that the respondent's cross-examination of the defendant was unnecessarily inflammatory and that he asked a question that he had no reasonable basis to believe was relevant to the case with the intent to degrade the witness. The respondent also asked the defendant to comment on the credibility of another witness. The respondent's conduct in these respects was in violation of Mass.R.Prof.C. 3.4(c) and (e).

The court also found fault with the respondent's final argument, stating that he impermissibly vouched for the credibility of the prosecution's evidence and the justness of its cause by characterizing himself as the "thirteenth juror" in the case and referring to his past experience as an altar boy. This conduct was in violation of Mass. R. Prof. C. 3.4(e), 3.8(i) and PF 13.

The respondent has been a member of the Bar since 1990. He received a prior admonition in 1995 for withdrawing as defense counsel in a criminal case without obtaining permission from the court.

In the instant case, the court found that the respondent's errors did not deprive the defendant of a fair trial because errors were corrected by instructions from the trial judge and did not make a difference to the jury's conclusions. The respondent accordingly received an admonition conditioned upon attendance at a CLE course on criminal trial practice.


ADMONITION NO. 00-61

CLASSIFICATION:
Inadequate Client Communication [Mass. R. Prof. C. 1.4]

SUMMARY:
The respondent was retained on August 8, 1997 to represent a wife in a divorce action on a flat fee basis. This was a short term marriage with no children, no real estate and little property. On September 19, 1997 the client's husband filed a no fault petition under §1A with the Probate and Family Court. The respondent timely answered the petition. On November 12 ,1997 the husband filed discovery. On January 19, 1999 the husband's attorney sent to the respondent a motion to compel compliance with discovery. There were no docket entries in the divorce action from the date of the respondent's answer up to and including January 19, 1999.

On February 4, 1999, the respondent and the client reviewed the file and there were eight letters related to the discovery issue from the respondent that the client had not received because they were sent to the wrong address.

During the course of her representation, the respondent failed to return a large number of the client's phone calls. The respondent's inadequate client communication, exacerbated by her carelessness with respect to the letters, was in violation of Mass. R. Prof. C. 1.4.

The client retained successor counsel and the case was satisfactorily resolved without any sanctions being imposed or other difficulty. The respondent was admitted in 1985 and has no prior discipline. Accordingly, the respondent received an admonition.


ADMONITION NO. 00-62

CLASSIFICATIONS:
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)]

SUMMARY:
The respondent received an admonition for his conduct in two matters. In the first matter, in October 1997, the respondent was retained by the owners of a time share to represent them in the sale of the property for $4,250.00. The respondent drafted a purchase and sale agreement and sent it to the buyer's attorney. The buyer's attorney returned it to the respondent on October 20, 1997 with an addendum.

From October 20, 1997 to December 15, 1997, the respondent did not perform the necessary steps to close the sale. The respondent failed to return telephone calls from his clients and from the buyer's attorney. As a result of the respondent's inaction, the buyers withdrew their bid. Consequently, the clients had to continue paying maintenance and advertising fees on the time share until it was sold in May 1998 for $4,200.00.

The respondent's conduct in this matter was in violation of Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7-101(A)(1)(2) and (3).

In another matter, the respondent was appointed in December of 1995 to represent a criminal defendant in a motion to revise and revoke his 15 to 20 year and 9 to 10 year concurrent sentences. The defendant received these sentences as a result of a guilty plea to several indictments arising out of the rape of his daughter. The defendant convict wanted to have his prison sentence reduced so he could, in his opinion, receive proper medical attention for various ailments. He had been denied parole and had unsuccessfully petitioned several state departments in an attempt to reduce his sentence.

After reviewing his file, the respondent determined that a motion to revise and revoke would not be granted because the defendant's health problems were not life-threatening and he was not near the end of his sentence. The respondent felt that going forward with the motion too early would be prejudicial to future motions if the defendant's health actually deteriorated during the later stages of his sentence. However, at no time during almost two years as counsel did the respondent advise the defendant of his analysis and strategy. He took no action until he withdrew in October 1997, after the defendant requested him to do so.

Although the respondent's analysis of the motion was reasonable, it does not excuse his neglect of the defendant. He failed to inform the defendant of his legal analysis and failed to take action on the motion for a period of almost two years.

The respondent's failure to explain his strategy to the defendant and to determine whether the defendant agreed with that strategy constituted a failure to adequately communicate with a client in violation of Canon Six, DR 6-101(A)(3). The respondent's failure to determine whether the defendant wanted to request a hearing on the motion constituted a violation of Canon Seven, DR 7-101(A)(1)(2) and (3).

The respondent has been a member of the Bar since 1972. He has no prior discipline. Accordingly, the respondent received an admonition for his conduct in these matters.


ADMONITION NO. 00-63

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]

SUMMARY:
This matter came to Bar Counsel's attention as a result of the receipt of a notice of dishonored check from a bank at which the respondent maintained an IOLTA account. The check was returned for insufficient funds because the respondent had failed to deposit funds to cover service charges associated with the wire deposit that supported the check. An unrelated, but more significant, problem was that the respondent did not retain monthly bank statements because the account was used infrequently. The respondent's conduct in this last respect was in violation of Mass. R. Prof. C. 1.15(a), which requires retention of financial records for six years after termination of the representation.

The original deposit consisted of funds for a real estate closing. The returned check was intended to transfer the funds to another client account maintained by the respondent at a second bank. This second client account was a pooled noninterest-bearing account. However, it was not a "conveyancing account" (as defined by Mass. R. Prof. C. 1.15(e) for closings for the second bank only. Accordingly, the account was required to be an IOLTA account and the respondent's failure to open it as an IOLTA account was in violation of Mass. R. Prof. C. 1.15(e).

Finally, there was a further unrelated overdraft in the second account. This overdraft occurred because the respondent closed on another real estate transaction before confirming receipt of the mortgage proceeds. The mortgage proceeds in fact were not received for almost two weeks after the closing. The respondent's conduct in this respect was in violation of the "good funds" statute, G.L.c.183, §63B, and constituted inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a).

The respondent has a previous admonition for neglect and inadequate record keeping in a conservatorship. He received an admonition in this matter, conditioned upon obtaining further training in record keeping.


ADMONITION NO. 00-64

CLASSIFICATION:
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]

SUMMARY:
This matter came to Bar Counsel's attention as a result of a report from a Superior Court judge arising from the testimony of a mother and son in a criminal matter.

The son had previously identified one of the defendants as a perpetrator of the crime at issue. Subsequently, a statement was presented to defense counsel recanting the identification. The statement purported to be signed by the son. It was notarized by the respondent.

Mother and son gave inconsistent testimony in Superior Court as to how the statement came to be signed. The son was apparently in custody at the time the undated statement was prepared. The son testified that he had written and signed the statement. The mother testified that she had written the statement and signed her son's name at her son's direction. Both agreed, however, that the mother had taken the statement to have it notarized. The mother did not know the respondent's name, but described where his office was located.

The respondent had no other involvement in the matter except for notarizing the statement. He does not know the mother or son. He had no recollection of notarizing the document, although he agreed that it bore his signature and stamp. He admitted that he did not routinely require production of identification from strangers asking to have documents notarized.

The respondent's conduct in notarizing the signature of a person who was not present before him constitutes a misrepresentation, in violation of Mass. R. Prof. C. 8.4(c). He has been a member of the Bar since 1990 with no prior discipline. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-65

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]

SUMMARY:
This matter came to Bar Counsel's attention in November 1999 pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt of two notices of dishonored check from the bank in which the respondent maintained his IOLTA account. The dishonored checks resulted from the respondent's failure to note in his check ledger one of the checks drawn against the account.

The respondent only practices law part-time and does not handle much in the way of client funds. He mistakenly believed that he was required to maintain a certain balance in his IOLTA account. Thus, when he had no client funds on account, he used the IOLTA account as his personal account, depositing earned fees and personal funds into the account, and making payments for personal and business items from the account.

The respondent's conduct in this matter violated Mass. R. Prof. C. 1.15(a), which prohibits deposit of funds belonging to a lawyer into trust accounts except for funds reasonably sufficient to pay bank charges, and funds belonging in part to a client and in part presently or potentially to a lawyer. The respondent accordingly received an admonition, contingent on attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-66

CLASSIFICATIONS:
Commingling Client's Funds With Lawyer's Funds [DR 9-102(A)]
Failure to Safeguard Trust or Escrow Funds [DR 9-102(B)(3) and (4)]
Notice of Dishonored Check [DR 9-103]

SUMMARY:
The respondents, experienced attorneys who are partners in a small firm, received an admonition for inadequate record keeping of client funds.

The matter first came to Bar Counsel's attention pursuant to Canon Nine, DR 9-103(B), as a result of receipt of a notice of dishonored check from the bank at which the respondents maintain their IOLTA account. The check in question was dishonored in part because the respondents had inadvertently reissued three checks that had already been paid.

Three weeks after Bar Counsel received the notice of dishonored check, a client filed a complaint with Bar Counsel alleging that the respondent had only recently remitted to him the proceeds of a check for lost wages issued by the insurance company a year earlier. Unknown to the respondents, the lawyer on their staff who had been handling the case had misappropriated the insurance company check and deposited it to his personal account. The lawyer told the respondents that the check had been deposited into the firm's IOLTA account. The respondents had no records to provide independent verification of the lawyer's claim. The client's file contained a deposit slip. Without reconciling their IOLTA account or otherwise confirming the deposit, the respondents gave the client a check drawn on their IOLTA account for the amount in question. Payment of the check to this client also contributed to the return for insufficient funds of the unrelated dishonored check about which Bar Counsel had received notice.

Review of the respondents' IOLTA account indicated that they also failed promptly to remove fees from their IOLTA account when earned, and issued checks from their IOLTA account to pay business and personal expenses. In addition, the respondents failed regularly to reconcile the account. In connection with Bar Counsel's investigation of this matter, the respondents obtained training in financial record keeping and revised their accounting procedures to conform to the requirements of the disciplinary rules.

The respondents' failure to keep adequate records of their client fund account, their failure to confirm a deposit had been made before issuing a corresponding disbursement, their failure promptly to remove fees when earned, and their payment of personal and business and expenses from their IOLTA account, violated Canon Nine, DR 9-102(A), (B)(3), and (4).


ADMONITION NO. 00-67

CLASSIFICATIONS:
Failing to Seek Client's Objectives [Mass. R. Prof. C. 1.2(a)]
Conflict Directly Adverse to Another Client [Mass. R. Prof. C. 1.7(a)]
Conflict from Responsibilities to Another Client or Lawyer's Own Interests [Mass. R. Prof. C. 1.7(b)]

SUMMARY:

The respondent simultaneously represented a driver and passenger in an automobile accident in circumstances where it was obvious at the outset of the case that there was a conflict of interest.

On January 13, 1999, the respondent was retained to represent a driver and passenger (a son and mother, respectively) who were involved in a collision with another car. Both drivers had the same insurance carrier. The respondent's clients insisted that the other driver had caused the accident, but the police report indicated that the son was the operator whose vehicle slid over to the wrong side of the road in bad weather. The respondent knew from the beginning that the son's claim was weak and that in all likelihood the insurance carrier would rely on the police report to assess fault. The respondent also knew at the outset, but did not disclose, that he probably was not willing to pursue the son's claim in court if the insurance carrier refused to settle.

The respondent made claims on behalf of both clients against the other driver. In May 1999, the respondent was notified that the insurance carrier had found the son at fault and that he was assessed surcharge points under the Safe Driver Insurance Plan. On June 21, 1999, the respondent advised his clients that the insurance carrier had agreed to settle the mother's case provided that she release both drivers (the son as well as the other driver) from all liability regarding the accident. The respondent at this point advised both clients that the son would have to file suit in court to recover damages other than PIP funds previously received. The respondent disclosed that there was a potential conflict of interest and the clients consented to his continued representation and agreed that the mother should settle her claim.

In July 1999, the insurance carrier again reiterated its refusal to settle the son's claim. On July 19, 1999, the respondent notified the son that his case was not worth pursuing in court because the police report stated that the son was the operator whose car slid over to the wrong side of the road.

Since the police report contradicted his clients' accounts of the accident, the respondent knew that a potential conflict existed from the date of the initial consultation. On June 21, 1999, after the insurance carrier agreed to settle the mother's claim but refused to settle the son's claim, the respondent knew that an actual conflict existed. Although the respondent at that point made some effort to obtain consent to the conflict, he failed to advise the clients that he was in fact unlikely to agree to file suit on the son's behalf. He thus did not make adequate disclosure. The respondent's statement to the son the following month that his case was not worth pursuing in court was made only after the mother's claim had been settled and thus was not timely. The respondent's conduct in these respects was in violation of Mass. R. Prof. C. 1.2(a) and 1.7(a) and (b).

The respondent was admitted to practice in 1963 and received an informal admonition in 1992. The respondent received an admonition for his conduct in this matter, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-68

CLASSIFICATIONS:
Conflict Directly Adverse to Another Client [Mass. R. Prof. C. 1.7(a)]
Imputed Disqualification Generally [Mass. R. Prof. C. 1.10(a)]

SUMMARY:
The respondent's firm simultaneously represented a mother accused of child neglect and abuse and, in an unrelated matter, the father of the child whom she was alleged to have abused. In November 1999, the conflict of interest became obvious when the respondent obtained the police report that made it clear that the father was an adverse witness.

In July 1999, the respondent was retained to represent the mother, who was alleged by the Department of Social Services to have placed her son in boiling water on the stove. At that time, the respondent's partner was already representing the child's father in a personal injury matter. The police report in the D.S.S. matter set forth the father's account of the mother's abuse of their children. The father allowed the investigating officer to make a copy of his notebook, with handwritten entries which purported to document incidents of abuse by the mother. Although the client does not agree, the respondent claims to have informed her that his partner was representing the father, that his partner would have no knowledge or any involvement with her case, and that she should seek counsel elsewhere if she felt he could not represent her interest impartially. The client in any event terminated the respondent's services with the matter still pending.

Mass. R. Prof. C. 1.10(a) provides that, while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by the rules on conflict of interest. Clearly, under Mass. R. Prof. C. 1.7(a), the respondent's partner could not have represented the mother in the D.S.S. matter because the partner could not have reasonably believed that the representation of the mother would not be affected by his representation of the father in the personal injury case. Therefore, since the partner would have had a conflict, the respondent would also be disqualified, regardless of whether or not the client consented.

In mitigation, the respondent mistakenly believed that since the father did not file the neglect and abuse complaint, he was not adverse. The respondent has also refunded the retainer.

The respondent was admitted to practice in 1991 and he has no prior discipline. The respondent received an admonition for his conduct in this matter.


ADMONITION NO. 00-69

CLASSIFICATIONS:
Improper Contingent Fee [DR 2-106 (C)]
Failure to Maintain Proper Records of Client's Property [DR 9-102(B)(3) and S.J.C. Rule 3:05]

SUMMARY:
The respondent represented a client in her claim for damages resulting from a 1987 accident. The client's claim settled in 1995. A portion of the settlement was used to purchase an annuity for the client and a portion was paid in cash.

The client did not have a clear understanding of how the proceeds of her settlement were distributed. Although the settlement funds were in fact correctly and promptly disbursed, the respondent did not provide the client with an appropriate account of her settlement until after she had complained to Bar Counsel, thereby violating Canon Nine, DR 9-102(B)(3). In addition, the respondent failed to execute a contingent fee agreement with the client, in violation of Canon Two, DR 2-106(C) and Supreme Judicial Court Rule 3:05.

In aggravation, in 1994 the respondent received an admonition with conditions of probation for delaying distribution of proceeds of a settlement, endorsing checks without authority, and failing to have a contingent fee agreement.

In mitigation, during the period in which he represented the client, the respondent was suffering from a severe depression. He was also distracted by his own contested divorce/custody case and by the acrimonious breakup of his law partnership.

As to the absence of a contingent fee agreement, the respondent had been retained in 1987, seven years before he received the 1994 admonition for similar misconduct.

Given that fact, and given that the respondent had in fact disbursed the settlement funds correctly (albeit without providing the client with the requested account), he received an admonition for his conduct in this matter.


ADMONITION NO. 00-70

CLASSIFICATIONS:
Improper Contingent Fee [S.J.C. Rule 3:05 and DR 2-106(C)]
Failure to Turn Over Timely Trust or Escrow Funds [DR 9-102(B4)]

SUMMARY:
The respondent represented a husband and wife in a personal injury action. The complaint that gave rise to this admonition was filed by the wife, whose claim was solely for loss of consortium.

The respondent was retained in late 1991 or early 1992 to represent the husband. The husband signed a contingent fee agreement which included a limited power of attorney to the respondent. When it was subsequently decided that suit would have to be filed, the respondent determined that the wife also had a claim for loss of consortium. Suit was therefore filed with both husband and wife as plaintiffs. The respondent overlooked, however, the need either to have the wife sign a separate contingent fee agreement or to have both parties sign a new joint contingent fee agreement.

In 1997, during mediation attended by both the husband and the wife, the matter was settled for $40,000. The settlement checks subsequently issued by the insurers were payable to the husband, the wife, and the respondent. Pursuant to the power of attorney signed by the husband, and believing also that at the mediation he had received oral authority to deposit the checks from both the husband and wife, the respondent endorsed the names of both the husband and the wife to the settlement checks and deposited them to his trust account. He thereafter provided an accounting to the husband and remitted a check to the husband, payable only to the husband, for the settlement proceeds net of the contingent fee and other expenses.

The following year, and at least in part as a result of marital problems, the wife began making inquiries of the respondent as to disbursement of the settlement. Ultimately, in January or February 2000, she retained counsel and filed a complaint with Bar Counsel, claiming that she should have received a share of the settlement.

The respondent's failure to sign a contingent fee agreement with the wife was conduct in violation of former SJC Rule 3:05 and former Canon Two, DR 2-106(C). In addition, and even assuming that he believed that he was orally authorized to endorse the settlement checks on behalf of the wife, the respondent's further failure to make his trust account check for the net proceeds payable to both husband and wife was a trust account violation under Canon Nine, DR 9-102(B)(4).

The respondent has been a member of the Bar since 1981, with no prior discipline. At the time that he received the settlement checks, the respondent was unaware of any marital problems between the husband and wife. He had no reason to anticipate that the wife would be dissatisfied or harmed by the disbursement of the net proceeds to the husband. He accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-71

CLASSIFICATION:
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]

SUMMARY:
The respondent is successor counsel on a number of collection cases for a corporate client. In one matter, the respondent received a check for $17,500 in partial settlement of the client's claim. Predecessor counsel claimed to be due a fee from this settlement. This claim to fees was disputed by the client.

The settlement check was payable jointly to the respondent, predecessor counsel, and the client. However, at the direction of the client's (out-of-state) general counsel, the respondent deposited the check to his IOLTA account without first notifying predecessor counsel of his receipt of the check and without predecessor counsel's endorsement. Instead, the respondent stamped the check "For Deposit Only" to his IOLTA account. The respondent did notify predecessor counsel after the check was deposited.

The respondent's deposit of a settlement check that was payable jointly to a third party (predecessor counsel) without notifying the third party of his receipt of the funds, or obtaining his authorization or endorsement, constitutes improper record keeping in violation of Mass. R. Prof. C. 1.15(b).

In mitigation, the funds remain in the trust account and will not be disbursed until the dispute over predecessor counsel's fee is resolved. The respondent has been a member of the Bar since 1973 with no prior discipline. The respondent accordingly received an admonition for the above violation, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-72

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15f]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15a]

SUMMARY:
This matter came to Bar Counsel's attention in June 1999 pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of a notice of dishonored check drawn on the respondent's IOLTA account.

The respondent accepted a full-time job in the public sector in 1997. He maintains only a minimal private practice and does not hold client funds. However, instead of closing his existing IOLTA account or allowing it to remain inactive, the respondent began using the IOLTA account for the deposit of his paychecks. From these deposits, the respondent would make periodic withdrawals of small amounts of cash for personal expenses and would transfer larger sums to another checking account to pay bills. The account became overdrawn, and a check was returned for insufficient funds, when the respondent miscalculated the balance.

The respondent's use of a client trust account for the deposit of personal funds and the payment of personal expenses violated Mass. R. Prof. C. 1.15(a). In mitigation, the respondent did not understand that his use of the account was improper and has now ceased using it in this manner.

The respondent has been a member of the Bar since 1973, with no prior discipline. He accordingly received an admonition for the above violations.


ADMONITION NO. 00-73

CLASSIFICATIONS:
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 paid $700 by a client in September 1998 to file a Chapter 7 bankruptcy on the client's behalf. Thereafter, the respondent did not reply to the client's repeated inquiries and the bankruptcy was never filed. The respondent's conduct in these respects constitutes neglect and inadequate communication, in violation of Mass. R. Prof. C. 1.3 and 1.4.

In mitigation, at the time that the client retained him, the respondent had recently accepted employment outside the practice of law. He was also in the middle of a difficult divorce. The respondent overestimated his ability to maintain a part-time law practice while working full-time in another position. After the complaint to Bar Counsel was filed in June 2000, the respondent refunded the client's fee in full and apologized.

The respondent has been a member of the Bar since 1985, with no prior discipline. He accordingly received an admonition for the above violations.


ADMONITION NO. 00-74

CLASSIFICATIONS:
Failure to Maintain Proper Records of Client's Property [DR 9-102(B)(3)]
Improperly Disbursing Escrow Funds [DR 9-102(A)]

SUMMARY:
The respondent represented a client in a claim arising out of the termination of an employment relationship. The respondent and the client had a written "hybrid" fee agreement, which provided that the client would pay an hourly fee of $80/hour, approximately one-half his usual hourly rate, plus a contingent fee of 25%. At the time the case settled in 1997, the client still owed the respondent a portion of the fees incurred on an hourly basis.

Although the respondent voluntarily agreed to reduce his contingency to 15%, he did not reduce his hourly rate or the number of hours billed. Without obtaining the client's assent to his fee, the respondent then took from the settlement the amount claimed as his outstanding fee. After the client objected, the respondent agreed to put some, but not all, of the disputed fees into escrow.

The respondent's bills contained several errors arising from his having changed firm affiliations. He erroneously credited the client for some funds which she had not paid, and did not credit her for all the funds which she had paid. However, whenever the client challenged specific items, the respondent reviewed the bills (at one time hiring an outside consultant to review the account), made appropriate revisions, apologized, and gave her the appropriate credits. The respondent paid to the client the difference between the amount received and the amount credited, a total of $324.50.

The respondent received an admonition for violations of Canon Nine, DR 9-102(B)(3) [failure accurately to account to the client for moneys received] and Canon Nine, DR 9-102(A) [taking a fee without the client's consent, and failing to place into escrow the disputed amount]. In mitigation, he has now escrowed the balance of the disputed fees and is participating in organizing a continuing legal education program on the financial aspects of law office management.


ADMONITION NO. 00-75

CLASSIFICATIONS:
Trust Account Commingling and Record Keeping [Mass. R. Prof. C. 1.15a]
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15f]

SUMMARY:
This matter came to Bar Counsel's attention in June 2000 pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of a notice of dishonored check drawn on the respondent's IOLTA account. The respondent acknowledged that he had drawn a check against the account before making the corresponding deposit.

The respondent misunderstood the IOLTA requirements, and for ten years had maintained his business account as an IOLTA account so that IOLTA could receive the benefit of any interest accrued. At the time of receipt of the dishonored check the respondent was no longer in private practice. Even when in practice, he had used this account as his firm's business account, and maintained a separate IOLTA account for deposit of client funds.

The respondent's use of a client trust account as a business account for deposit of personal funds and payment of personal or business expenses violated Mass. R. Prof. C. 1.15(a). In mitigation, the respondent did not understand that his use of the account was improper, and closed the account after speaking with Bar Counsel.

The respondent has been a member of the Bar since 1989, with no prior discipline. He accordingly received an admonition for the above violations.


ADMONITION NO. 00-76

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15f]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
This matter came to Bar Counsel's attention in June 2000 pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of a notice of dishonored check drawn on the respondent's IOLTA account. The check was returned unpaid because the supporting deposit was also returned. The respondent acknowledged that he had drawn a check against his IOLTA account before waiting for the deposit to clear.

Review of the respondent's handling of client funds indicated that he was holding client funds in his IOLTA account which were more than nominal in amount for more than a short period of time, in violation of Mass. R. Prof. C. 1.15(e). For example, for ten months he held more than $6,000 for an estate because of a dispute among estate beneficiaries regarding who was entitled to the funds. The respondent had anticipated that the dispute would be promptly resolved. He subsequently held more than $13,000 for an additional ten months for the same estate. In addition, approximately $9,000 owed the respondent in fees remained in his IOLTA account for six months, in violation of Mass. R. Prof. C. 1.15(d).

The respondent has been a member of the Bar since 1973, with no prior discipline. The respondent received an admonition for the above violations, conditioned on attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 00-77

CLASSIFICATION:
Conduct Involving a Misrepresentation [Mass. R. Prof. C. 8.4(c) ]

SUMMARY:
On October 29, 1999 the respondent was settlement agent for a closing involving the sale of residential real estate. The seller and the buyer were represented by independent counsel. After the closing, the respondent gave the seller's deed and other standard papers to an assistant for delivery to a title examiner at the Registry of Deeds for a title run down and recording. At some point in time between the closing and delivery to the title examiner, the seller's original deed and the respondent's check for the excise tax deed stamps were lost. Later the same day, the respondent's paralegal took a copy of the deed and traced the seller's signature, and the signature of the notary (who was the seller's attorney) and caused the recording of the duplicate deed with the traced signatures.

Prior to recording of the duplicate deed with the traced signatures, the respondent's paralegal made an unsuccessful effort to locate the missing documents. The paralegal then called the respondent and asked the respondent for instruction. If the seller could not re-execute the deed that day, the respondent authorized his paralegal to record a copy of the deed with the signatures traced, provided that the seller's attorney consented. The paralegal claims to have called the seller's attorney's office and to have understood that the seller's attorney consented to the recording of the copy of the deed with the signatures traced. The seller's attorney denies that this conversation occurred.

Irrespective of whether the seller's attorney consented, the respondent's conduct in authorizing his paralegal to record a duplicate deed with the signatures traced constituted a misrepresentation, albeit without fraudulent intent, in violation of Mass. R. Prof. C. 8.4(c). The seller's signature as recorded was not genuine or notarized.

No harm resulted from the incident. The seller agreed to execute a confirmatory deed, and that deed, properly notarized and in its original form, was duly recorded. The respondent paid the costs and fees in connection with correcting the signatures on the deed.

The respondent was admitted in 1992 and has no prior discipline. The respondent received an admonition conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 00-78

CLASSIFICATION:
Excessive Fee [Mass. R. Prof. C. 1.5a and DR 2-106(A)]

SUMMARY:
This matter came to Bar Counsel's attention as a result of the receipt of a notice of dishonored check from the bank in which the respondent maintained an account as trustee under an inter vivos trust. The check was returned unpaid because the respondent inadvertently had failed to transfer funds from the savings account to the checking account portion of the trust.

The respondent in fact in 1993 became trustee of two inter vivos trusts, one each for an elderly sister ("the client") and brother. The client was hit by a car as a pedestrian in 1994 and has been only borderline competent since then. In addition, the client became the sole beneficiary of her brother's trust after his death in January 1995. The respondent was charging a flat $20,000 a year for his services as trustee to the two trusts ($10,000 per trust). Apart from his services as trustee and the probate of the brother's estate, the respondent performed no legal services of any kind.

The client is now in her mid 90's. Since her accident in 1994, the respondent has effectively been acting as geriatric social worker or case manager for the client. In that capacity, and in addition to his flat fees as trustee, he was also charging his regular hourly legal fee for nonlegal services such as communicating with the client's medical providers and with her several full-time home care aides. He also charged at this rate for time spent visiting the client, taking her to lunch, and even attending her brother's funeral. The situation was especially problematic because the client has no relatives or friends to review the bills and is not capable of doing so herself. The respondent's conduct in charging legal rates for nonlegal services constituted charging an excessive fee, in violation of Mass. R. Prof. C. 1.5(a) and its predecessor Canon Two, DR 2-106(A).

In mitigation, the respondent did not understand that he could not charge legal rates for nonlegal services. He has now refunded a substantial sum to the trust. The respondent has also taken very good care of the client over the years that he has been her trustee. Given that the respondent has refunded the amount that he overcharged, the respondent received an admonition for his misconduct.


ADMONITION NO. 00-79

CLASSIFICATION:
Unauthorized Practice of Law in Another Jurisdiction [DR 3-101(B)]

SUMMARY:
The respondent represented a California resident on a number of personal and business matters over a three-month period. The respondent traveled to California to meet with the client. The representation of the client included legal advice on a number of issues, some of which involved California law, and the negotiation of a probate matter involving California residents.

The respondent's activities on behalf of the client amounted to the unauthorized practice of law under California law. The respondent violated Canon Three, DR 3-101(B) ("[a] lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction"). The respondent has no prior discipline. The respondent mistakenly relied on the advice of California counsel that the provision of legal advice would not amount to the unauthorized practice of law in California. The respondent's misconduct caused no harm. The respondent received an admonition for violation of Canon Three, DR 3-101(B).


ADMONITION NO. 00-80

CLASSIFICATION:
Improper Advancement of Funds to Client [DR 5-103(B)]

SUMMARY:
Various associates in the respondent's law office represented an individual in a dental malpractice claim. Prior to trial, an associate who had been handling the case left the respondent's office for another firm. An experienced associate took over the case. The client told that associate that she needed money and asked for an advance. The respondent met with the client and said that he could not advance her funds. The client responded that she would transfer the case to another law office if the respondent would not advance her $1,000. The respondent agreed and advanced the client that sum. The client's case was lost at trial, and the respondent recovered the advance from the client as a result of a claim for it in court.

The respondent's advance to the client of $1,000 to induce her to keep her case with his firm was in violation of Canon Five, DR 5-103(B) ("While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client" with exceptions not applicable). The respondent received an admonition conditioned on his attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 00-81

CLASSIFICATIONS:
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]

SUMMARY:
On or about August 20, 1998, the respondent was retained to represent a client in a divorce action against her husband. The respondent was paid a $1,500.00 retainer. He prepared and filed a divorce complaint on behalf of the client, and on or about October 16, 1998, he met with the client and her husband, who was pro se, to discuss a preliminary separation agreement. At this meeting, the respondent agreed to provide a draft of the agreement within one week, but he failed to do so. The client left numerous messages with the respondent's secretary inquiring about the status of the draft agreement to no avail.

As a result of the client's persistence, the respondent's secretary scheduled a meeting with the respondent for Saturday, December 5, 1998 at 10:00 a.m. The respondent did not appear for this meeting, and did not give an explanation for his absence. However, the meeting was rescheduled for the following day. At the meeting, the respondent agreed to deliver a draft agreement to the client's home by December 7, but did not do so until December 21, 1998.

On February 8 and 19, 1999, the client requested a copy of the draft agreement and a billing statement from the respondent. He did not comply with her requests. Accordingly, she filed a grievance against him at the Office of Bar Counsel.

The respondent failed to respond to Bar Counsel's inquiries about the matter, thus necessitating a subpoena for his appearance at the Office of Bar Counsel on July 20, 1999. The respondent failed to appear for that meeting. When telephoned, the respondent explained that he had been unaware of the scheduled subpoena meeting.

The respondent appeared at the Office of Bar Counsel the next day and delivered his written response to the client's allegations, together with a copy of his billing statement for the case.

In mitigation, the respondent's father had suffered a near fatal heart attack in November 1998. Further, the respondent and his family were in the process of moving. Finally, the respondent developed a chronic medical problem. The respondent is a sole practitioner and these circumstances caused a great deal of disruption in the his practice.

The respondent's failure to adequately communicate with his client regarding the delays in her case constituted neglect in violation of Mass. R. Prof. C. 1.4. However, other than a few months delay in the progress of her divorce, there was no ultimate harm to the client. The respondent's failure to cooperate with Bar Counsel's investigation was in violation of S.J.C. rule 4:01§ 3.

The respondent has been a member of the bar since 1980. He received a private reprimand for neglect of a civil matter in 1993 for conduct that occurred in 1990. 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. 00-82

CLASSIFICATIONS:
Failing to Seek Client's Lawful Objectives or Abide by Client's Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent represented a client in 1995 and 1996 in a matter before the Massachusetts Commission Against Discrimination and in a related dispute between the client and the school that had placed him in the employment. In December of 1997, the respondent commenced a wrongful termination/discrimination action in Superior Court against the client's employer and several other defendants but not the school. The respondent took the case on a contingent fee basis. However, due to the respondent's failure to respond to discovery or to oppose motions to compel or to dismiss, the client's claims were dismissed against all defendants in 1998 and 1999.

The client retained successor counsel, who was able to remove the defaults and dismissals. The client incurred legal fees to revive his claims because successor counsel would not represent the client on a contingent fee basis, but these charges were paid by the respondent's malpractice insurer.

In addition, because the respondent neglected to file a rebuttal to the employer's position statement, the Massachusetts Commission Against Discrimination made a lack of probable cause finding, which may affect the Superior Court litigation. Similarly, the respondent failed to name the client's school as a defendant in the Superior Court action, which was contrary to the client's instructions.

The respondent's conduct was in violation of Mass. R. Prof. C. 1.2(a) and Mass. R. Prof. C. 1.3.

The respondent has been a member of the Bar since 1974 and has no history of prior discipline. He received an admonition for the above misconduct, conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 00-83

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f) ]
Trust Account Recordkeeping [Mass. R. Prof. C. 1.15(a) ]

SUMMARY:
This matter came to Bar Counsel's attention as the result of receipt from a bank of a notice of dishonored check drawn on the respondent's IOLTA account. The check in question was in the amount of $4,769.92, payable to the respondent's client. The check was returned as a result of several problems with the respondent's handling of trust funds resulting in an overdraft of $182.40.

The respondent is a sole practitioner who does bar advocate work and some collection cases. The respondent received a large volume of small checks from debtors. Upon receipt of a payment from a debtor, the respondent would reimburse his firm for out-of-pocket expenses and legal fees earned. Due to inadequate record keeping, on at least three occasions the respondent overpaid his creditor clients small sums of money equal to the amount of out-of-pocket expenses incurred. The total of the three overpayments was $281.55.

The respondent failed to maintain accurate and complete records of his IOLTA account. The respondent kept a check register but did not reference a client matter for each check and each deposit item. The respondent did not keep copies of deposit slips or deposit items. The respondent also failed to keep individual client ledgers. The respondent did keep an aggregate chronological running log. However, the entries in his log were not always accurate. Specifically, debits for out-of pocket expenses were sometimes omitted. Finally, the respondent did not periodically reconcile his account.

The respondent's recordkeeping in these respects was inadequate and in violation of Mass. R. Prof. C. 1.15(a). In mitigation, no client was harmed and the amount of the overdraft was minor. The respondent has been a member of the Bar since 1981 and has no prior discipline. Accordingly, Bar Counsel recommends that the respondent receive an admonition conditioned upon attendance at a CLE program designated by Bar Counsel.



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