2001 Admonitions
ADMONITION NO. 01-01
CLASSIFICATIONS:
Neglect of a Legal Matter [DR 6-101(A)(3)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
SUMMARY:
In early 1995, a client retained the respondent to assist in the settlement of the client's mother's estate, and paid him a $3,500 retainer. The client's mother had died on December 27, 1994. The respondent filed the estate tax return in December of 1996, reporting that no tax was due. An estate tax closing letter was issued on March 19, 1997.
The respondent did not file the will and a petition for probate until June 9, 1997. The client was appointed executor on September 19, 1997. Although most of the decedent's assets were distributed by the end of 1997, and despite numerous requests from the client, the respondent did not prepare the final account until the fall of 1999, after the client contacted Bar Counsel. The Probate Court entered a final judgment allowing the account on July 21, 2000.
By taking over five and one-half years to settle a simple estate, the respondent neglected a legal matter entrusted to him in violation of Canon Six, DR 6-101(A)(3) as to conduct occurring prior to January 1, 1998, and Massachusetts Rule of Professional Conduct 1.3 as to conduct occurring after January 1, 1998.
In mitigation, during the relevant time period the respondent experienced a number of personal medical problems and family problems. In aggravation, the respondent had received a prior admonition in 1996 for neglect of a civil case.
In light of the mitigating circumstances and lack of ultimate financial harm to the client, the respondent received an admonition for his conduct, on the condition that he attend six (6) hours of continuing legal education courses on the subject of law office management, including time management, prior to June 1, 2001.
ADMONITION NO. 01-02
CLASSIFICATIONS:
Improper Disclosure of Confidential Information [Mass. R. Prof. C. 1.6(a)]
Improper Financial Assistance to Client [Mass. R. Prof. C. 1.8(e)]
Improper Threat or Presentation of Criminal or Disciplinary Charges [Mass. R. Prof. C. 3.4(h)]
Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation [Mass. R. Prof. C. 8.4(c)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]
SUMMARY:
The respondent represented a client in a personal injury action in connection with a motor vehicle accident. While the case was pending, the respondent made a $261.00 advance to the client to pay the cost of her automobile insurance premium.
The client retained a new attorney to represent her in the personal injury matter. The successor attorney refused to repay the respondent for the $261.00 loan because the client's case was still pending.
The respondent made a telephone call to the client's mother, disclosing that the client had refused to repay the loan and asking for the mother's assistance in obtaining repayment. When the mother stated that she had no involvement with her daughter's legal matters, the respondent threatened to call the police and have the client arrested for larceny. When the mother explained to the respondent that her daughter was not working because of the car accident and had no money to repay him, the respondent said that he would not have the client arrested, but he would sue her.
By making an improper financial advance to his client, the respondent violated Rule 1.8(e) of the Massachusetts Rules of Professional Conduct.
By disclosing to his client's mother that he had made a loan to the client which she was refusing to repay, and seeking the mother's assistance in obtaining repayment of the loan, the respondent revealed client confidential information without prior client consent in violation of Rule 1.6(a).
By threatening to bring criminal charges of larceny against his client solely for the purpose of obtaining an advantage in a civil matter, the respondent violated Rule 3.4(h).
By misrepresenting to the client's mother, a layperson, that her daughter's failure to repay a loan was a crime, the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c).
By making a rude and threatening telephone call to his client's mother in order to seek repayment of a loan he had made to the client, the respondent engaged in conduct that adversely reflects on his fitness to practice law, in violation of Rule 8.4(h).
In mitigation, the respondent retracted the threat to seek criminal charges immediately after making it. In aggravation, the respondent had received a prior admonition for neglect of a client matter during a period when he was suffering from a number of medical conditions.
The respondent received an admonition for his conduct in this matter.
ADMONITION NO. 01-03
CLASSIFICATIONS:
A Lawyer Should Represent a Client Zealously within the Bounds of the Law [DR 7-106(C)(1)]
Improper Closing Argument [PF13]
SUMMARY:
The respondent was the prosecutor in a criminal jury trial in December 1996. The defendant was convicted of second-degree murder and appealed. Although the conviction was upheld by the Appeals Court, the court criticized the respondent's closing argument. The court found that the respondent's closing argument was improper because of his substantive use of a witness's grand jury testimony. Specifically, the court found that although a witness had testified in grand jury proceedings that he saw the defendant near the scene of the crime on the date of the murder, the witness subsequently testified at trial that he did not see the defendant on the date of the murder. The respondent used the grand jury testimony to impeach the witness's trial testimony but stated in his closing argument that the witness testified that he saw the defendant near the scene of the crime on the date of the murder, without alerting the jury that such testimony was grand jury testimony and not trial testimony. The court also found that the respondent made an improper appeal to the jury in his closing argument for sympathy for the victim. The respondent's conduct was in violation of Canon Seven, DR 7-106(C)(1) and PF 13. The Appeals Court nonetheless affirmed the conviction because of strong evidence of guilt and detailed corrective instructions from the trial judge.
The respondent has been a member of the Bar since 1987 and has no history of prior discipline. He received an admonition for the above misconduct.
ADMONITION NO. 01-04
CLASSIFICATIONS:
Handling Legal Matter without Adequate Preparation [DR 6-101(A)(2)]
Neglecting a Legal Matter [DR 6-101(A)(3)]
Failure to Represent a Client Zealously [DR 7-101(A)(1)(2)]
Prejudicing/Damaging Client During Representation [DR 7-101(A)(3)]
Failure to Turn Over to Client his Property [DR 9-102(B)(4)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
SUMMARY:
On February 27, 1995 the respondent's client was involved in an automobile collision. The client was hit from behind by a van and liability on the part of the other driver was reasonably clear. At the time of the accident, the client was suffering from preexisting compression fractures of the lumbar spine and was recovering from knee surgery. The client was treated at the emergency room and released to the care of her current orthopedic doctor who, in turn, referred her to a physical therapist.
The client consulted with the respondent on or about March 3, 1995 and on March 6, 1995 the parties executed a contingent fee agreement. On March 3, 1995 the respondent sent proper notice to the client's carrier and to the responsible driver's carrier.
On November 1, 1995 the respondent received a medical report from an orthopedic physician which opined 36 weeks of total disability, causally related to the February 27, 1995 accident. The client suffered no new injuries but claimed that the accident aggravated her pre-existing injuries.
On June 16, 1995 the respondent received $2065.00 in PIP benefits payable to the client and a medical service provider and deposited the funds into her IOLTA account. However, the respondent did not promptly notify the client of receipt. The medical care service provider did not have any lien on the payment. The client first learned of the payment on September 20, 1995, at an office meeting with the respondent. On September 29, 1995 the respondent wired the funds to the client's account.
On May 1, 1997 the respondent filed suit against the driver and the owner of the driver's vehicle. On August 6, 1997 the defendants served document requests and interrogatories on the respondent. The interrogatory responses were due by September 22, 1997 and the document production was due by September 8, 1997. Despite several reminders from the defendants' counsel in October 1997 and the defendants' filing of an application and re-application of dismissal in October 1997 and January 1998, the respondent did not respond to the discovery requests. The case was dismissed, with notice to the respondent, on February 23, 1998.
During the time period that discovery was outstanding, the respondent and her client may have discussed the interrogatories. However, the respondent did not follow up or send to the client any hard copy of the discovery or warn her of the consequences of a failure to respond.
The respondent also did not timely notify the client of the dismissal. The client learned of the dismissal by checking with the court on June 19, 1998. The respondent, at that time, first filed the motion to vacate the dismissal. The case was ultimately reinstated on February 4, 1999. The client then retained successor counsel and in August 1999 the case settled.
The respondent's failure to promptly notify her client of receipt of PIP benefits and her failure to transmit the funds to her, or come to some other agreement as to disposition of the funds, was in violation of Canon Nine, DR 9-102(B)(4).
The respondent's failure to adequately communicate with her client including her failure to communicate the need to timely comply with discovery and the consequences of not doing so was in violation of Canon Six, DR 6-101(A)(2)(3) and Canon Seven, DR 7-101(A)(1)(2)(3) as well as Mass. R. Prof. C. 1.4. The respondent's failure to notify her client of the dismissal of the case was in violation of Mass. R. Prof. C. 1.4.
The respondent's conduct in allowing civil litigation to be dismissed for failure to comply with discovery and the late filing a motion to vacate a judgment of dismissal was in violation of Mass. R. Prof. C. 1.3.
The respondent had previously received an admonition for neglect for conduct that was roughly contemporaneous with the facts described herein. In both cases there was extraordinary mitigation in the form of a life-threatening illness of the respondent's daughter in 1997. In addition, the respondent's mother and her father-in-law both suffered strokes in the spring of 1998. In both the current case and the prior admonition, there was no ultimate harm to the clients. Accordingly, the respondent received an admonition in this matter conditioned upon attendance at a CLE program designated by Bar Counsel and maintaining professional liability insurance in amounts satisfactory to Bar Counsel.
ADMONITION NO. 01-05
CLASSIFICATION:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a) ]
SUMMARY:
This matter came to Bar Counsel's attention from a creditor of the respondent's wife. In June and August 2000, the respondent tendered two checks to the creditor for a personal obligation from an account denominated "Clients Trust Account".
Investigation of the respondent's IOLTA account found that the respondent commingled personal and client funds and allowed personal funds to remain in the acount. Specifically, in December 1999 through January 2000 the respondent received by periodic payments a total of $58,000.00 in proceeds from his wife's sale of a houseboat in Florida. The respondent deposited each payment as received into his IOLTA account. The respondent conceded that he did not deem his wife a "client" in the transaction and the funds represented family funds.
The respondent then retained the funds in his IOLTA account. Between December 1999 and August 2000 the respondent, from time to time, drew checks payable to various creditors, primarily creditors of his wife, but on occasion to his own creditors. For example, the respondent wrote one check for payment of his law office phone bill.
The respondent used his IOLTA account as a personal checking account. However, at no time did the respondent withdraw from his IOLTA account an amount in excess of personal funds held or otherwise misuse funds.
The respondent's conduct in this matter constituted commingling in violation of Mass. R. Prof. C. 1.15(a).
The respondent was admitted in 1969 and had no prior discipline. The respondent is a sole practitioner who was without a bookkeeper for about three years and admitted to a lack of understanding with respect to his obligations under Mass. R. Prof. C. 1.15. The respondent recently retained a bookkeeper who is familiar with required accounting practices for the maintenance of an IOLTA account. Accordingly, the respondent received an admonition conditioned upon attendance at a CLE program recommended by Bar Counsel.
ADMONITION NO. 01-06
CLASSIFICATIONS:
Neglecting a Legal Matter [Canon Six, DR 6-101(A)(3)]
Failing to Promptly Distribute Trust Funds [Canon Nine, DR 9-102(B)(4)]
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:
As a trustee, the respondent was responsible for making distributions to a number of individuals after her account was allowed in June of 1997. The respondent was unclear on the proper amount of the checks to be paid because of various tax complications. Initially the respondent sought assistance from her law firm's accounting department. When this did not resolve the question, the respondent failed to take any further action on the matter for the next eighteen months.
In December of 1998, two individuals who had not yet received their distributions sent a fax to the respondent indicating that they would take legal action if the checks were not mailed. That same day, the respondent mailed the distribution checks.
In January of 1998, the check recipients faxed a letter to the respondent requesting documentation showing all sums which had been withheld from their distributions. The respondent did not respond to this letter because she was still unsure if she had calculated the distributions accurately.
The respondent did not seek outside assistance from an accountant until after a grievance was filed with Bar Counsel in March of 1999. Shortly thereafter the respondent mailed the requested documentation to the check recipients, along with additional checks, all for amounts less than $30.00, to correct her prior accounting errors. The additional payments to correct errors were made from the respondent's funds.
By failing to make distributions for eighteen months after her account was allowed, the respondent violated Canon Nine, DR 9-102(B)(4) and Rule 1.15(b) of the Massachusetts Rules of Professional Conduct.
By failing to complete the legal matter in a timely fashion, the respondent violated Canon Six, DR 6-101(A)(3) and Rule 1.3 of the Massachusetts Rules of Professional Conduct.
In mitigation, the respondent was admitted to practice in 1981 and has received no prior discipline. Where the total amount due to be distributed to each recipient was less than $2,500.00, and these amounts were paid in full with the respondent bearing the costs of all errors made, the respondent received an admonition.
ADMONITION NO. 01-07
CLASSIFICATION:
Conflict of Interest Between Lawyer and Client [DR 5-101(A)]
SUMMARY:
In September and October 1990, the client, who worked for the respondent as a legal secretary, consulted the respondent about protecting her house from possible Medicaid liens and avoiding having the house pass through probate. The respondent advised the client that placing the ownership of the house in a real estate trust would accomplish her goals.
On November 1, 1990, the client executed a real estate trust in which she named herself as the sole trustee, her sister-in-law as the successor trustee, and her cousin as the sole beneficiary. The client and her mother, who held a life estate in the house, conveyed the ownership of the house to the real estate trust. The respondent notarized the trust and the deed. When the client executed the trust, she understood and intended that, upon her death, the successor trustee would amend the trust and name herself as the beneficiary.
On December 12, 1991, the client executed an amendment to the real estate trust that named the respondent as the successor trustee. The client showed the amendment to the respondent after its execution and told the respondent that, upon her death, she wanted him to have her house. The client understood the effect of the amendment, and knew that she could amend the trust at any time prior to her death. The respondent did not advise the client that he had a personal and financial interest in the trust that might affect his professional judgment regarding the effect of the amendment to the trust, nor did he tell her to seek the advice of independent counsel. The respondent's conduct in this respect constituted a conflict of interest, in violation of Canon Five, DR 5-101(A).
This matter was heard by a hearing committee of the Board of Bar Overseers on October 29, 1999 and January 12, 2000. On July 26, 2000, the Hearing Committee filed its report recommending that the respondent receive an admonition. On September 11, 2000, the Board of Bar Overseers voted to adopt the Hearing Committee's Report and its recommendation to admonish the respondent.
ADMONITION NO. 01-08
CLASSIFICATIONS:
Neglecting a Legal Matter [DR 6-101(A)(3)]
Failure to Cooperate in Bar Discipline Investigations [S.J.C. Rule 4:01, § 3 and Mass. R. Prof. C. 8.4(g)]
SUMMARY:
The client retained the respondent in or before the summer of 1994 to represent her in a claim arising out of a March 1994 motor vehicle accident. The respondent purposely did not attempt to settle the matter in the year or two after the accident, first because the client had not reached an end result in her medical treatment and then because the client was in the middle of a divorce. However, the respondent then lost track of the case and the statute of limitations expired in 1997 without suit having been filed or further action taken. When the client subsequently contacted the respondent, he told her that he had lost the file but that he had malpractice insurance.
When the client did not hear anything more from the respondent, she contacted the Office of Bar Counsel in March 2000. In answer to a preliminary telephone inquiry from Bar Counsel, the respondent indicated that he would attempt to locate the file and would send it to the client. When nothing further was forthcoming, the client filed a complaint with Bar Counsel in April 2000. The respondent thereafter did not reply to correspondence from Bar Counsel, necessitating the issuance of a subpoena to compel his appearance. The respondent appeared pursuant to the subpoena in October 2000 and had with him the client's file.
The respondent's neglect of the client's claim in and before 1997 was in violation of former Canon Six, DR 6-101(A)(3). His failure to cooperate with Bar Counsel was in violation of Supreme Judicial Court Rule 4:01, §3 and Mass. R. Prof. C. 8.4(g).
The client has now retained new counsel, who is pursuing a malpractice claim on her behalf with the respondent's insurer. The respondent has been a member of the Bar since 1977 with no prior discipline. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-09
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 as the result of receipt of a notice from a bank of a dishonored check for $229 drawn on the respondent's IOLTA account. The check in question was payable to a creditor and payment would have created an overdraft of $208.
A review of the records of the respondent's trust account showed that, although a few settlements were deposited to the account, it was primarily used for the deposit of earned fees. The respondent also paid various personal and office expenses directly from the IOLTA account. This conduct constitutes commingling of business and personal funds, in violation of Mass. R. Prof. C. 1.15(a). In addition, and again in violation of Mass. R. Prof. C. 1.15(a), the respondent did not maintain adequate records of the maintenance of the account and was therefore unaware that the account did not contain funds adequate to pay the creditor.
The respondent received an admonition for the above violations, conditioned upon attendance at a CLE program designated by Bar Counsel and receiving training in trust accounting.
ADMONITION NO. 01-10
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]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]
SUMMARY:
A defendant was found guilty of criminal charges in November 1997 and sentenced to the statutory minimum. The respondent did not represent the defendant at trial. In January 1998, and more than sixty days after she was sentenced, the defendant filed a pro se motion to revise and revoke the sentence. Trial counsel withdrew.
Counsel appointed to represent the defendant on post-conviction matters advised her that the options were a motion for a new trial or an appeal, but that the motion to revise and revoke would not succeed because the client had received the mandatory minimum. The client did not agree with this advice and retained the respondent in September 1998 to represent her on the motion to revise and revoke. The respondent did not undertake to represent the client on an appeal or on a motion for new trial. He was paid a flat fee of $3000 by a friend of the defendant. Appointed counsel at this point withdrew.
The respondent never met, or met with, the defendant, although he spoke frequently with her by telephone. He also spoke with certain individuals that the defendant had asked him to contact. However, he did not speak with predecessor counsel, did not prepare an amended motion to revise and revoke or any affidavits, memoranda, or other pleadings, and did not give adequate independent thought to whether there were any grounds to reduce the sentence.
In December 1998, the defendant pro se wrote to the judge requesting action on the motion to revise and revoke. In January 1999, the judge denied the motion to revise and revoke without hearing on the grounds that the defendant had received the statutory minimum sentence. The respondent did not request reconsideration of the decision and did not at that time refund any part of the $3000 that he had been paid.
After the defendant filed a complaint with Bar Counsel in February 2000, the respondent in November 2000 refunded the $3000 that he had been paid by the defendant's friend. He agreed that he had not given sufficient consideration to the fact that the mandatory minimum sentence effectively precluded a motion to revise and revoke, nor to the distinctions between issues appropriate to a motion for new trial and those appropriate to a motion to revise and revoke.
The respondent's conduct in this matter was in violation of Mass. R. Prof. C. 1.1, 1.3, 1.4 and 1.16(d). He accordingly received an admonition, conditioned upon attendance at CLE programs designated by Bar Counsel.
ADMONITION NO. 01-11
CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.5(f)]
Trust Account Commingling and Recordkeeping [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 notice of two dishonored checks on two consecutive dates drawn on an account maintained by the respondent and entitled "escrow" account. The checks were payable to the respondent in the amount of $700 and $1000 and payment would have caused overdrafts of $594 and $872, respectively.
The account in question was opened as a so-called "client group account," meaning a master account with subaccounts 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 not interest-bearing and is supposed to serve merely as a conduit for the transfer of funds into and out of client subaccounts.
In the instant matter, there were no open subaccounts and the master account was instead being used by the respondent as a commingled account into which he deposited settlements, earned fees and other personal funds and from which he paid clients, as well as personal and business expenses. The respondent originally intended this account to be used as an escrow account for one particular client, but over time started using it in a more general fashion and in addition to his regular IOLTA account.
The respondent's conduct in this matter is in violation of Mass. R. Prof. C. 1.15(a) (commingling) and 1.15(e) (the IOLTA rule). He has now withdrawn all funds from the "escrow" account. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel and upon receiving training in trust accounting.
ADMONITION NO. 01-12
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 as the result of receipt of a notice from a bank of a dishonored check for $219 drawn on the respondent's IOLTA account. The item in question was a check that was mistakenly drawn on the respondent's trust account, rather than his operating account. Because payment of another check the previous day had already created an overdraft, payment of the check for $219 would have caused a deficiency of $352. Then, several months later, another check payable to the respondent for $1000 was also returned for insufficient funds. Payment in this instance would have caused an overdraft of $316.
The IOLTA account was properly used by the respondent for the deposit of settlements in personal injury cases and clients were properly paid their shares of the settlements. However, the respondent also wrongly deposited earned fees in worker's compensation cases to the IOLTA account, rather than to an operating or personal account as required. Further, instead of promptly withdrawing earned fees by writing one check to himself for his contingent fee in each personal injury case, the respondent withdrew these fees piecemeal, in round amounts. He also used fees remaining in the account to pay costs in unrelated cases and to write checks to his wife. In addition, the respondent did not maintain adequate financial records. He did not keep sufficient track of the fees withdrawn piecemeal and on occasion withdrew more than he was due. He also did not maintain either an acceptable check register or individual client ledgers, such that he was unable to break down the account balance by client. All of this conduct constitutes commingling of business and personal funds and inadequate record keeping, in violation of Mass. R. Prof. C. 1.15(a).
In mitigation, the respondent did not understand that the conduct at issue was in fact commingling. The respondent is in the process of correcting his record keeping. He accordingly received an admonition, conditioned upon his following through with agreed-upon changes to his financial records and upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 01-13
CLASSIFICATION:
Failing to Cooperate in Bar Discipline Investigation [Mass. R. Prof. C. 8.4(g)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
SUMMARY:
The respondent was retained to defend a defunct Pennsylvania corporation and its officers (one of whom was also the owner) against a lawsuit brought by a creditor in Massachusetts for breach of contract, deceit and violations of M.G.L. c. 93A, §11.
The defendant officers filed a complaint with Bar Counsel alleging that the respondent failed to respond to discovery requests and that this caused the court to enter a default judgment against them. The respondent did not reply to correspondence from Bar Counsel until compelled to do so by subpoena. His conduct in this respect was in violation of Supreme Judicial Court Rule 4:10, §3 and Mass. R. Prof. C. 8.4(g). Thereafter, the respondent cooperated fully with Bar Counsel's investigation. The respondent mistakenly believed that he was not obligated to respond to Bar Counsel because he was in settlement negotiations with the clients.
At the onset of the lawsuit, the clients were defaulted because the respondent failed to file an answer to the complaint. The court subsequently allowed a motion to remove the default and ordered the respondent to pay attorney's fees of $2,500 to the plaintiff's counsel. The respondent paid this fine. The respondent's conduct in failing to timely file an answer to the civil complaint was in violation of Mass. R. Prof. C. 1.3. However, the respondent was not responsible for the fact that the clients were subsequently again defaulted and that default judgment entered against them. This second default occurred because the clients failed to provide responses to discovery requests, despite repeated requests from the respondent to do so.
The respondent was admitted to practice in 1990 and has no prior discipline. The respondent received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-14
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 as the result of receipt of a notice from a bank of a dishonored check for $800 drawn on the respondent's IOLTA account. The check in question was a paycheck to one of the respondent's employees. Payment would have created an overdraft because the respondent had gone on vacation and left the paycheck with the employee for deposit after an expected settlement was received. The check instead was negotiated by the employee before the settlement was deposited.
The IOLTA account was properly used by the respondent for the deposit of settlements in personal injury cases and clients were properly paid their shares of the settlements. However, instead of writing checks to himself for his contingent fees, the respondent used the funds due him as fees to pay various personal and office expenses directly from the IOLTA account, including employees' paychecks, quarterly tax payments, and checks to the respondent's wife. This conduct constitutes commingling of business and personal funds, in violation of Mass. R. Prof. C. 1.15(a).
The respondent had not understood that he could not pay his own obligations directly from fees remaining in the IOLTA account and has now corrected his record keeping to Bar Counsel's satisfaction. He accordingly received an admonition, conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 01-15
CLASSIFICATIONS:
Conflict From Responsibilities to Third Person [Mass. R. Prof. C. 1.7(b)]
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)]
SUMMARY:
The respondent represented the wife in a divorce. The parties, who disagreed regarding issues of child custody and property division, participated in mediation in an effort to resolve their differences. The mediation resulted in an extensive proposed mediation agreement. One of the proposed terms of the agreement provided that the husband buy out the wife's interest in the marital home, and the wife transfer title to him.
The husband wished to implement the provision regarding disposition of the marital home prior to reaching agreement on other issues, in order to take advantage of favorable interest rates. The wife agreed to transfer title to the husband, provided that the respondent received the proceeds, to be held in escrow. In a subsequent letter to the husband's attorney, the respondent stated her understanding that, once the separation agreement was executed, she could release the funds to her client, and that, in the event prompt settlement was not reached, the respondent reserved the right to seek court approval for release of the funds.
The husband subsequently unilaterally reduced the monthly amount he paid to the wife, and indicated that he would not longer abide by their agreement. Thereafter, at the wife's request, and without notifying the husband's attorney or seeking court authorization, the respondent released the escrow funds to the wife, with the caution that the money could not be dissipated because it constituted a marital asset. The wife placed the funds in a high interest-bearing account.
The following month the parties appeared before a probate court judge regarding several pending issues, including the issue of support. Following the hearing, the respondent notified opposing counsel that she had released the escrow funds. Opposing counsel insisted that the wife return the funds to escrow. When she refused to do so, opposing counsel marked the matter up for hearing the following month. The judge imposed sanctions of opposing counsel's fees and court costs on the respondent, and ordered the wife to place the funds in an escrow held jointly by opposing counsel and the wife's trial counsel (not the respondent).
The respondent should not have released the funds unilaterally in contravention of the escrow agreement made with the opposing counsel and should instead have sought court permission to release the escrowed funds. In mitigation, the respondent believed, by reducing his support and disavowing the agreement reached in mediation, the husband had terminated the understanding under which the parties were operating, and that she was thus free to release the funds to her client. In addition, the respondent advised her client to retain the funds and eventually voluntarily disclosed to opposing counsel that the funds had been released. The respondent's client returned the funds in their entirety to escrow when subsequently ordered to do so by the judge, and the funds were ultimately returned to the respondent's client when the divorce was finalized.
The respondent's conduct in this matter constituted a conflict between the respondent's responsibilities to her client and a third person, in violation of Mass. R. Prof. C. 1.7(b), and failure to safeguard escrowed funds, in violation of Mass. R. Prof. C. 1.15(a). In addition, her distribution of escrowed funds without mutual agreement or court order violated Mass. R. Prof. C. 1.15(b).
The respondent was a relatively inexperienced attorney at the time of the events at issue. Given that fact, and in light of the absence of harm to any party, the respondent received an admonition for her conduct in this matter.
ADMONITION NO. 01-16
CLASSIFICATIONS:
Neglecting a Legal Matter [DR 6-101(A)(3)]
Failure to Represent a Client Zealously [DR 7-101(A)(1)(2)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]
Failure to cooperate in Bar Discipline Investigations [S.J.C. Rule 4:01, §3 and Mass. R. Prof. C. 8.4(g)]
SUMMARY
The respondent received an admonition for her conduct in two matters. The admonition was conditioned upon her attendance at a CLE course designated by Bar Counsel.
In the first matter, the respondent was appointed to represent a defendant on criminal charges. The defendant was convicted after a guilty plea in July 1994 and sentenced to 10 to 20 years incarceration. At the time of sentencing, the judge indicated that she would consider a motion to revise and revoke at some point in the future. Accordingly, the respondent filed a revise and revoke motion within 60 days of sentencing, as required by Rule 30 of the Massachusetts Rules of Criminal Procedure.
A hearing on the motion was scheduled for March 24, 1997. The respondent and the defendant appeared in court on that date, but no one appeared on behalf of the Commonwealth. Apparently, the District Attorney's Office had not been notified of the hearing. Further, the prosecutor who had handled the defendant's case had retired since the guilty plea. Thus, the matter had to be reassigned. The court agreed to hear the matter at a later date.
Approximately two weeks later, the respondent learned the name of the new prosecutor who would handle the motion for the Commonwealth. The respondent spoke with this Assistant District Attorney on several occasions about rescheduling the motion hearing. However, they did not agree to a date for the hearing. The judge was transferred to another county. The respondent decided to wait until the summer of 1998 when the judge would be back. However, in May of 1998, the defendant filed a grievance against the respondent at the Board of Bar Overseers. Upon learning of the grievance, the respondent stopped doing any work on behalf of the defendant. She also failed to respond to his letters requesting a copy of his file.
When preparing her answer to the defendant's complaint to the Board of Bar Overseers in September 1998, the respondent learned that the judge had denied the motion to revise and revoke without a hearing on August 13, 1997. The respondent had checked the court docket sheets in November of 1997. The denial of the motion had not yet been docketed. Notice of the denial of the motion was not sent until June 12, 1998. The respondent did not receive that notice because it was sent to her former office address and she moved to a new office in May 1998.
The respondent's failure to make timely efforts to reschedule the defendant's motion hearing constituted neglect and failure to diligently represent her client in violation of Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7-101 (A)(1)(2). However, in view of the judge's decision to deny the motion without a hearing, it does not appear that the defendant was harmed by the respondent's neglect. The respondent's failure to provide the defendant with a copy of his file was in violation of Mass. R. Prof. C. 1.16(e).
The respondent also failed to cooperate with Bar Counsel's investigation of this matter necessitating a subpoena for her appearance at the Office of the Bar Counsel on September 24, 1998. Her conduct in this respect was in violation of S.J.C. rule 4:01 § 3 and Mass. R. Prof. C. 8.4(g).
In the second matter, the respondent was appointed as standby counsel to a defendant charged in the U. S. District Court with theft of property from a national historic site. The defendant became unhappy with the respondent's representation. He filed a motion with the court alleging ineffective assistance by the respondent and requesting that new standby counsel be appointed. He also filed a grievance against the respondent at the Office of Bar Counsel, making similar allegations. Although the respondent replied to Bar Counsel's initial inquiries, her letters were not timely. She also failed to address all of the defendant's allegations. She was asked to provide additional information, but she failed to do so. Thus a second subpoena was issued in May 2000, for the respondent's appearance at the Office of the Bar Counsel. The respondent appeared on July 6, 2000 and provided the necessary documentation. Her failure to cooperate with Bar Counsel's investigation was in violation of S.J.C. rule 4:01 § 3 and Mass. R. Prof. C. 8.4(g).
In mitigation, the respondent has been a member of the bar since 1973, and has no history of discipline. She suffers from various medical problems and has had difficulties adjusting to the multiple medications that have been prescribed. Further, the respondent is a sole practitioner, and from February through April 2000, she was involved in a complicated, high profile and high pressure criminal trial. As a result of this trial, the rest of her practice suffered. She fell behind in her work, and did not keep up with her mail or telephone messages. In order to deal with these problems, the respondent cut her case load and made efforts to improve her office communication systems.
ADMONITION NO. 01-17
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 pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank of three notices of dishonored checks drawn on the respondent's IOLTA account. The first two notices were dated February 1999; the checks that were dishonored were for $11,590 and $39,635 and payment would have caused overdrafts of $1963 and $17,837, respectively. The third notice was dated June 1999; the check that was dishonored was for $126,609 and payment would have created an overdraft of $26,216. All three checks were paid promptly upon redeposit.
The respondent's original explanation for the first two dishonored check notices proved insufficient. After the third notice was received, the respondent retained an accountant to reconcile his IOLTA account. The underlying cause of the deficiencies in the account was subsequently determined to be the following. First, in two instances in 1998, the respondent was settlement agent for two real estate closings in which the lender was a bank other than the bank at which the respondent maintained his IOLTA account. This lender bank had deposited the loan proceeds to a conveyancing account at the lender bank itself. However, in each case, the respondent inadvertently conducted the closing from his IOLTA account without transferring the funds from the lender bank. He did not realize that the funds remained in the lender bank until after receipt of the accountant's report, at which point the transfer was made.
In two other instances in 1998, the respondent inadvertently disbursed funds from his IOLTA account that in fact were on deposit in individual interest-bearing subaccounts of a separate "client group" account. Again, he did so without transferring the funds from the client group account to the IOLTA account, and again, he did not realize that the funds remained in the subaccounts until after receipt of the accountant's report, at which point the appropriate transfers were made.
The net effect of these errors was that, at various points, the IOLTA account was short more than $200,000, although these funds in fact were on deposit in other trust accounts maintained by the respondent . The errors were masked by the float in the IOLTA account.
The respondent failed to maintain adequate financial records or to reconcile, or adequately reconcile, his IOLTA account, allowing the missing deposits to remain undetected for over a year. His conduct in both respects constituted inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a).
The respondent has been a member of the bar since 1976. He has a prior admonition for unrelated misconduct. He has now made the needed changes to his record keeping practices. The respondent accordingly received an admonition, conditioned upon compliance with the terms of an accounting probation agreement.
ADMONITION NO. 01-18
CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling [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 notice of dishonored check drawn on an account maintained by the respondent and entitled "client account". The check that was returned was to pay the respondent's personal credit card bill and was dishonored because the respondent failed to make a timely deposit to cover the payment.
The account in question was a so-called "client group account," meaning a master account with subaccounts 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 not interest-bearing and is supposed to serve merely as a conduit for the transfer of funds into and out of client subaccounts.
In the instant matter, there were no open subaccounts and the master account was instead being used by the respondent as a commingled account into which he deposited personal funds as well as some client funds, and from which he paid clients as well as personal and business expenses. The respondent originally opened this account in the early 1980's as a conveyancing account, primarily for one bank. Over time, when that bank merged with another bank and he ceased doing conveyancing for this lender, he started using the account in a more general fashion and in addition to his firm's regular IOLTA account.
The respondent's conduct in this matter is in violation of Mass. R. Prof. C. 1.15(a) (commingling) and 1.15(e) (the IOLTA rule). He has now closed the account. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-19
CLASSIFICATION:
Trust Account commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
SUMMARY:
The respondent was closing attorney for a September 1998 refinance. As part of the refinance, the respondent was to pay real estate taxes owed by the borrower. The respondent withheld funds for this purpose, but his check to the city was returned for insufficient funds.
The IOLTA account on which the dishonored check was drawn was an account that the respondent had opened shortly before the closing at issue. It was a commingled account into which the respondent deposited earned fees and other personal funds as well as the mortgage proceeds for the refinance, and from which, in addition to proper disbursements relating to the closing, he made direct payment of personal and business expenses. He did not keep adequate track of withdrawals of his own funds, resulting in the overpayment that led to the dishonored check. The respondent paid the borrower's taxes from personal funds immediately upon becoming aware that his check had been returned.
The respondent's conduct in this matter constituted commingling and inadequate recordkeeping, in violation of Mass. R. Prof. C. 1.15(a). In mitigation, the respondent was a solo practitioner who had only been a member of the bar for a few years prior to the events in question. He is also seriously ill and is currently on inactive status and not practicing law. He accordingly received an admonition for the above violations.
ADMONITION NO. 01-20
CLASSIFICATIONS:
Improper Conduct before a Tribunal [DR 7-106(A)]
Facts Outside the Record [SJC Rule 3:08 - PF 14]
SUMMARY:
The respondent was the prosecutor in a criminal trial in which the defendant was charged with driving under the influence of alcohol. The defendant had been convicted of this same offense on three prior occasions. Prior to cross-examination, the issue of whether the prosecutor could refer to the prior convictions was raised and the judge issued a ruling allowing the respondent to refer only to prior arrests and not convictions.
The defendant was questioned by the respondent concerning his prior arrests during cross-examination. Then, during the respondent's closing argument, he referred to the defendant's prior convictions despite the fact that he had been instructed by the judge not to do so. The respondent argued to the jury that "[t]his defendant lied to you. He took the oath, then he lied to you. He told you he had been arrested once before for operating under the influence of liquor. That was a lie. He acknowledged that lie when I took out the three prior convictions, and I showed them to him." The respondent did not in fact show the defendant his prior convictions because he had been prohibited by the judge from doing so.
The defendant appealed his conviction and raised the issue of improper closing argument as one of the issues on appeal. The Appeals Court affirmed the defendant's conviction even though it found that the respondent's reference to the three convictions was a "blow below the belt" and a serious matter. The court stated that the judge's curative instructions were sufficient given that the jury was already aware of prior OUI episodes and that other evidence of intoxication was powerful.
The respondent's misconduct violated Canon Seven, DR 7-106(A) (disregarding a ruling of a tribunal) and SJC Rule 3:08, Prosecution Function 14 (referring to or arguing based on facts outside the record). The respondent received an admonition for his conduct.
ADMONITION NO. 01-21
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 pursuant to Mass. R. Prof. C. 1.15(f), as a result of receipt of notices of dishonored checks from a bank at which the respondent's firm maintained its IOLTA account.
The respondent managed the Worcester satellite office of a law firm, subject to the supervision of a partner in another location who was more experienced. The respondent's practice consisted primarily of residential real estate conveyancing work, usually in the capacity of lender's counsel.
On December 6, 1999, Bar Counsel received a notice of dishonored checks drawn on an IOLTA account in the name of the firm. The notice reported that on November 26, 1999 nineteen (19) items totaling $513,268.51 were presented for payment causing the account to be overdrawn in the amount of $149,256.83. On December 30, 1999, Bar Counsel received a second dishonored check notice that reported that on December 24, 1999 nine (9) items totaling $277,563.01 were presented for payment and caused the account to be overdrawn. The nine items were returned.
The IOLTA account was used primarily to receive funds and make disbursements in connection with the conveyancing practice of the Worcester office. On December 31, 1997, the Worcester office conducted a real estate closing transaction. On that date, a bank was to wire $160,303.50 into the account to fund the transaction. The bank mistakenly wired the funds into someone else's account. The transaction closed and went to record. Disbursement checks were drawn on the account as per the HUD-1 settlement statement, without any corresponding funding of the account. The respondent and her staff failed to confirm receipt of good funds prior to consummation of the transaction and the transaction was able to close only because of the float in the IOLTA account.
From December 31, 1997 to December 31, 1999, all closing transactions that occurred in the respondent's Worcester office were recorded at one of the firm's other offices. Pursuant to this practice, the Worcester office periodically sent all of the financial information as to each closing to the bookkeeper in the other office. From December 31, 1997 to on or about December 28, 1999, the other office failed to adequately reconcile the Worcester IOLTA account and failed to discover the misdirected deposit, as described above. On December 28, 1999, shortly after a financial audit uncovered the mistake, the wire into the incorrect account was reversed and the firm's IOLTA account was credited the full amount of the funds. During the approximate period of two years that the account was $160,303.50 short, the deficiency in the account was masked by the float.
From January 1998 to December 1999, the Worcester office repeatedly failed to take adequate steps to confirm receipt of good funds prior to disbursement of checks from the account in connection with residential real estate closing transactions. Also, during this period, deposit items, (usually cashier's checks representing partial funding), were not timely delivered to the bank for deposit in the account after the closing transaction. As a result of these omissions, disbursement checks were presented against uncollected funds.
The respondent's failure prior to tendering disbursement checks and going to record to verify receipt of funds, or to insure that the funds were collected in some instances in violation of the "good funds statute" G.L. c. 183, § 63B, was in violation of Mass. R. Prof. C. 1.15(a).
The respondent was admitted in 1992 and at all times was under the supervision of substantially more experienced counsel. The respondent had no prior discipline. Accordingly, the respondent received an admonition.
ADMONITION NO. 01-22
CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
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 dishonored check notice drawn on the respondent's IOLTA account.
The respondent opened a new IOLTA account with an initial deposit of $50. This initial deposit did not cover bank charges for new checks. The respondent was unaware that this charge would be made. In and of itself, this issue is not a disciplinary matter. However, the respondent also did not promptly withdraw earned fees from his IOLTA accounts until well after the fees were earned or even well after cases were closed.
The respondent's failure to withdraw the earned portion of a retainer at the earliest reasonable time, thereby commingling earned fees with client funds, constituted conduct in violation of Mass. R. Prof. C. 1.15 (a) and (d). The respondent received an admonition for his conduct in this matter, conditioned on his attendance at a CLE program recommended by Bar Counsel.
ADMONITION NO. 01-23
CLASSIFICATION:
Excessive Fee [DR 2-106(A)]
SUMMARY:
In 1989 the client, at the time a minor, received a structured settlement for a serious injury received four years earlier. The respondent represented the client and his father in the settlement, which included an annuity with regular payments to be made into a trust fund for the client's benefit. The client's father assented to the terms of settlement on behalf of his minor son, including the respondent's fee. The respondent thereafter served as trustee of the trust fund into which annuity payments were placed.
When the client was 24 years old he terminated the trust fund, and thereafter complained to Bar Counsel about fees taken by the respondent as trustee. Those fees were not inappropriate.
In the course of investigating the client's complaint, Bar Counsel discovered that the respondent had used inappropriate considerations in calculating his fee on the settlement. Although the fee was generally calculated based on the present value of the structured settlement, the respondent also incorrectly included an estimated 1/3 of future income tax savings gained through the structured settlement and 1/3 of the value of a corporate guaranty for the annuity. Although the respondent believed that he could include these additional factors in the computation of his fee, his conduct in adding them was improper, and in violation of Canon Two, DR 2-106(A).
The respondent has since paid the client $30,888.93, representing $20,006.01 incorrectly charged against the 1989 settlement, plus interest from that date to December 2000.
The respondent is an experienced practitioner who has no prior disciplinary history. Under these circumstances, and given the length of time between settlement and filing of complaint, and the fact that the respondent has made an appropriate adjustment to the fee, the respondent received an admonition for his conduct.
ADMONITION NO. 01-24
CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failure to Cooperate in Bar Discipline Investigations [S.J.C. Rule 4:01, §3 and Mass. R. Prof. C. 8.4(g)]
SUMMARY:
This matter came to Bar Counsel's attention as the result of the receipt of a notice of dishonored check from the bank in which the respondent's associate maintained an IOLTA account. The respondent also maintained his own IOLTA account and, independently, Bar Counsel received a separate notice of dishonored check relating to that account.
The respondent's associate was a conveyancing attorney for several lenders, but the respondent managed the associate's conveyancing practice and IOLTA account. Checks drawn on the associate's account were dishonored because, in unrelated closings, the respondent inadvertently paid out funds that were on deposit in his own IOLTA account from the associate's IOLTA account and vice versa. Because the loan that was supposed to be closed from the respondent's account was the larger sum, the associate's account did not contain sufficient funds to cover the total disbursements on that closing. To correct the mistake, the respondent transferred the difference from his own IOLTA account to the associate's account.
Two small checks drawn on the respondent's own IOLTA account were also dishonored, in one instance because the respondent had inadvertently made the deposit to the associate's account and, in the other, because the covering deposit was made the day after the check was written.
The respondent's record keeping for both IOLTA accounts was inadequate. Fees were withdrawn in round amounts, without reference to particular closings. Payoffs sometimes were not made immediately following the closing, resulting in additional interest charges that were paid from accrued fees in the account. The accounts were not adequately reconciled and the only check registers that the respondent maintained were incomplete stub books. The respondent's conduct in these respects constitutes commingling and inadequate record keeping, in violation of Mass. R. Prof. C. 1.15(a).
In addition, the respondent did not cooperate with Bar Counsel's investigation, resulting in the issuance of a subpoena to compel his appearance. His conduct in this respect is in violation of Supreme Judicial Court Rule 4:01, §3 and Mass. R. Prof. C. 8.4(g).
In mitigation, the respondent and his associate now employ a bookkeeper. The respondent accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-25
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 as the result of receipt of three notices from a bank of dishonored checks totaling $250 drawn on the respondent's IOLTA account.
The underlying problem was a simple error that did not implicate any disciplinary issues. However, review of the records of the respondent's trust account showed that it was primarily used for the deposit of earned fees and that the respondent withdrew funds payable to himself or third parties as needed. 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 accordingly received an admonition for the above violations, conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 01-26
CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
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 the bank in which the respondent maintained an IOLTA account. The check was dishonored because the respondent had paid herself a portion of her fee for settlement of a personal injury matter, then later did not remember that she had done so and wrote herself a check for the full amount of the fee, thus overdrawing the account. Bar Counsel's review of the respondent's IOLTA account revealed that the respondent had overpaid herself on another case two months earlier, also causing her account to go into overdraft.
The respondent did not maintain a check register, did not maintain individual client ledgers, did not regularly reconcile the account, and did not properly identify her account on her checks as a client trust account.
After this matter came to Bar Counsel's attention, the respondent made changes in her handling of client funds necessary to comply with the requirements of Mass. R. Prof. C. 1.15. The respondent received an admonition for violation of Mass. R. Prof. C. 1.15(a) and (d), contingent on attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-27
CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
SUMMARY:
This matter came to Bar Counsel's attention as a result of a complaint filed in March 2000 from an attorney at the Department of Veterans' Affairs. The complaint alleged that the respondent had been appointed conservator of a veteran in 1985, that he had not filed an annual account since 1996, and that he did not timely render his accounts in response to a Probate Court order to do so.
The respondent resides in New York and has not had a Massachusetts office since 1997. Because he had moved his New York office, he did not receive the order to render the accounts until just before the return date. After a contempt summons was requested and the complaint to Bar Counsel was filed, the respondent cooperated with the Department of Veterans' Affairs in resigning as conservator and filing his 14th through final accounts. However, the respondent had not received quarterly statements or Form 1099s since 1997 for one money market account, which held over $87,000 in August 1998. Although he was orally informed by a bank officer that the account had escheated to the State Treasurer's office, he took no further action through the fall of 2000 either to retrieve the funds or to obtain written confirmation from the bank. It was ultimately Bar Counsel who obtained the information corroborating that the funds had escheated in October 1996.
The respondent's failure to timely file probate accounts or to take steps to locate the escheated account was in violation of Mass. R. Prof. C. 1.15(a) and Mass. R. Prof. C. 1.3. The respondent has been a member of the Massachusetts bar since 1984 and was admitted in New York a decade earlier. He has no prior discipline. He accordingly received an admonition for the above violations.
ADMONITION NO. 01-28
CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e) and DR 9-102(C)]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
SUMMARY:
This matter came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of the receipt of a notice of dishonored checks from the bank at which the respondent maintained his IOLTA account. The respondent is a conveyancer. The checks in question were returned unpaid because the respondent disbursed funds for a closing from a new IOLTA account, but the lender had wired the mortgage funds to his old trust account. The respondent had confirmed that the lender had wired the funds, but had not confirmed receipt with his own bank. He immediately transferred the funds to his new IOLTA account and the checks were paid upon redeposit.
The above error, in an isolated instance, would not be a disciplinary matter. However, several additional problems were discovered. First, the old trust account was a noninterest-bearing account used for closings for lenders other than the bank at which the account was held. It was not an IOLTA account as required by Mass. R. Prof. C. 1.15(e) and its predecessor Canon Nine, DR 9-102(C).
Second, the respondent subsequently closed the old trust account and paid the balance in the account of $6282 to himself. The respondent believed that the entire sum was owed him as reimbursement for out-of-pocket costs paid from his business account for closings over the previous two years. Although the respondent in fact was due most of the remaining balance, he had overlooked the fact that he was still holding $901 in escrow from an earlier closing. The escrow funds have now been properly disbursed.
The respondent's conduct in failing to withdraw costs from his trust account owed to himself at the earliest reasonable time after his interest in the funds became fixed, and his failure to maintain financial records adequate to apprise him of the fact that he was holding escrow funds in his trust account, constitutes commingling and inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a).
The respondent accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-29
CLASSIFICATIONS:
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:
In September 1998, the respondent commenced representation of a client in a bodily injury automobile accident claim. In March 1999 the respondent received a valid hospital lien on any bodily injury settlement. The lien was placed in the file and the respondent was aware of it at the time.
In September 1999 the bodily injury claim settled for the policy limit of $20,000.00 and the settlement proceeds were distributed. However, the respondent did not carefully examine the file at time of settlement, forgot about the lien, and accordingly did not honor it.
In November 2000 the hospital filed a civil complaint against the respondent, his client and the bodily injury insurance carrier. The carrier was named as a defendant because the settlement check did not include the hospital as payee.
The respondent's client filed a complaint with Bar Counsel on December 8, 2000 after being served with the civil complaint. He alleged that the respondent told him that the medical bills had been taken care of at time of settlement.
Investigation of the distributions confirmed that the respondent distributed the amount due to the hospital ($3,116.30) directly to his client. The client has, to date, failed or refused to reimburse the hospital. The litigation is currently pending.
The respondent's failure to review the file for liens prior to distribution of the settlement proceeds was in violation of Mass. R. Prof. C. 1.3 and 1.15(b).
The respondent was admitted in 1992 and has no prior discipline. The respondent is a sole practitioner and currently concentrates his practice in real estate matters. The respondent received an admonition conditioned upon attendance at a CLE program recommended by Bar Counsel.
ADMONITION NO 01-30
CLASSIFICATIONS:
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
SUMMARY:
In 1997 a borrower obtained a loan on property to which he had acquired title by virtue of a sheriff's deed. The borrower knew that there was a title problem, specifically there was no decree confirming the validity of the sale under G.L. c. 237. The respondent was lender's counsel. The closing was accomplished through a personal undertaking and an affirmative title coverage policy with a title insurance company. The applicable provision of the undertaking provided that $10,000 would be held by the respondent's firm as agent for the title insurance company and that the funds would be held in trust to secure the borrower's obligations. The borrower could only use the funds to clear title.
In June 1997, the respondent deposited $60,000 of the mortgage proceeds into the firm's IOLTA account. The loan closed and after distributions, $10,000 of the $60,000 remained in trust, denominated in the settlement papers as an "escrow", all as provided in the undertaking.
At the time of closing, the borrower understood that the respondent would clear the title, that the respondent had estimated the fees at about $5,000.00, and that the matter was straightforward. The respondent claims that he was never specifically retained to clear the title and that he understood that another attorney who had previously represented the borrower would undertake the task. The loan documents did not require the borrower to hire the respondent to clear title.
On July 2, 1998, following a number of unanswered phone calls, the borrower wrote to the respondent requesting information as to the status of "clearing the lien". The respondent did not answer. Accordingly, on March 8, 1999, also following unanswered phone calls, the borrower sent the respondent a second letter. The respondent again did not answer.
On April 14, 1999 another attorney, on behalf of the borrower, made three phone calls to the respondent which were not returned and then wrote to the respondent in an attempt to get his attention. The letter was correctly addressed and was not returned, but the respondent claims to have not received it. When borrower's new attorney did not receive any reply, he referred the borrower to Bar Counsel and on October 20, 2000, the borrower filed a complaint.
On December 5, 2000 the respondent first acknowledged in writing to the borrower's attorney that the firm was holding $10,000.00 in trust. On January 8, 2001, the borrower's new attorney notified the respondent that his office would clear the title and on January 10, 2001 the respondent tendered to the borrower's attorney a retainer to commence the process.
Irrespective of whether the respondent undertook responsibility for clearing title, his failure to correct any misapprehension on the part of the borrower, or to inform him of the status of the funds, was in violation of Mass. R. Prof. C. 1.15(b), as well as Mass. R. Prof. C. 1.3 and 1.4.
The respondent was admitted in 1971. The respondent was cautioned by Bar Counsel in July 2000 regarding a 1997 matter involving similar facts. In March 1996, in a third matter, the respondent was cautioned by Bar Counsel concerning his failure to respond to a telephone call and a letter from a client.
The respondent received an admonition in this matter, conditioned upon his attendance at a CLE program designated by Bar Counsel.
ADMONITION NO 01-31
CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15f]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15a]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15b]
SUMMARY:
This matter came to Bar Counsel's attention as the result of the receipt of a notice of dishonored checks from the bank in which the respondent's IOLTA account is maintained. The checks in question totaled $745 and payment would have caused an overdraft of $198.
The respondent is a conveyancer. Review of his IOLTA account records showed that he generally failed to reconcile transactions after closing and that his accountings on seven closings during the period in question did not zero out. In three instances, borrowers were still owed small sums totaling $310. In four other matters, the respondent failed to collect sufficient funds to cover disbursements, leaving the IOLTA account $1107 short. The respondent's conduct in this respect was in violation of Mass. R. Prof. C. 1.15(a),(b).
After Bar Counsel's review of the matter, the respondent deposited additional personal funds to the IOLTA account to cover the deficiency and paid out the small sums due borrowers. He also ceased using, and eventually closed, the IOLTA account and began using a new IOLTA account with record keeping adequate to his practice.
The respondent has been a member of the Bar since 1992 with no prior discipline. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-32
CLASSIFICATIONS:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failing to Withdraw [Mass. R. Prof. C. 1.16 (a) and (c)]
SUMMARY:
At the direction of the Superior Court, the respondent was appointed by the local Bar Advocates to represent a client at an evidentiary hearing. Prior to the respondent's appointment, the client had filed a pro se motion for a new trial alleging ineffective assistance of counsel. This motion was filed approximately two years after the client's direct appeal was denied.
The client testified at the evidentiary hearing that his trial counsel did not allow him to testify in his own defense and that he only met with him in the "bullpen" at the courthouse. The respondent subpoenaed the jail's visitor log to verify the client's claim, but he did not receive the log in time for the hearing. At the conclusion of the hearing, the judge held the matter open to allow the respondent to produce the visitor log. The visitor log showed that trial counsel had visited the client twice at the jail. The judge subsequently denied the client's motion for a new trial.
The respondent filed a notice of appeal as requested by the client. Thereafter, he allowed the appeal to be dismissed without filing a brief because he believed that the client's testimony regarding the trial counsel's failure to visit him at the jail was perjurious. The respondent failed in this respect to make a distinction between client error and perjury. Regardless, although the respondent advised the client that he could not ethically advance an argument based on his perjured testimony, he did not inform the client that he did not intend to pursue his appeal.
The client wrote the respondent five times to inquire about the status of his appeal. However, the respondent neither responded to the client's inquiries nor moved to withdraw from representation. The client learned from the court that his appeal was dismissed for failure to prosecute. The Committee for Public Counsel Service subsequently assigned the matter to an appellate "screening" attorney who determined that further appeal was not viable.
The respondent's failure either to communicate with the client concerning the appeal or to withdraw was conduct in violation of Mass. R. Prof. C. 1.4 and 1.16(a),(c).
The respondent was admitted to practice in 1991 and has no prior discipline. He received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-33
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 as the result of receipt of a notice from a bank of dishonored checks drawn on an IOLTA account in the respondent's name. The checks in question were returned because the respondent had closed the account in question and transferred the balance to a new IOLTA account, without realizing that five unpaid checks were still outstanding. The respondent's failure to reconcile the old account constitutes inadequate record keeping, in violation of Mass. R. Prof. C. 1.15(a). The checks have since been reissued and paid from the new account.
A review of the records of the respondent's trust account showed that the respondent also paid various personal expenses directly from the IOLTA account. This conduct constitutes commingling of business and personal funds, in violation of Mass. R. Prof. C. 1.15(a).
The respondent accordingly received an admonition for the above violations, conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 01-34
CLASSIFICATION:
Improper Communication with Represented Person [Mass. R. Prof. C. 4.2]
SUMMARY:
This matter was reported to Bar Counsel by a judge of the probate court. The respondent represents the son of a 90-year-old man who is the subject of a petition by an elder services agency for a protective order to prevent abuse. The father has separate counsel. There is an issue as to whether the son is financially exploiting the father.
The respondent has been friendly with the father and the son for fifteen years. Despite the respondent's reminder to the son that his father had authorized the father's lawyer to have access to certain financial records and the respondent's advice that the son grant this access, the son refused to comply. During a break in a hearing concerning court orders on this issue, the son telephoned his father (who was not present), claiming that he was being railroaded. The respondent then spoke to the father to confirm that the father still wanted the father's lawyer to have access to disputed financial records.
In a telephone conversation during a break in the proceedings, the father told his own lawyer about the telephone call from his son and the respondent. Counsel reported the matter to the judge, who in turn cautioned the respondent as to the importance of "bright line boundaries".
As the court made clear, it was improper for the respondent to communicate about the subject of the representation with a person he knew to be represented by another lawyer in the matter, without that lawyer's consent. The respondent's conduct in this respect was in violation of Mass. R. Prof. C. 4.2.
In aggravation, the respondent has a prior admonition from 1994 for neglect. In mitigation, the respondent's motive in this instance was benign. He only intended to attempt to facilitate getting his intransigent client to turn over records to his father's counsel. Under these circumstances, the respondent received an admonition.
ADMONITION NO. 01-35
CLASSIFICATION:
Conflict from Responsibilities to Another Client or Lawyer’s Own Interests [Mass. R. of Prof. C. 1.7(b)]
SUMMARY:
In 1997, the respondent was retained to represent the client with regard to the division of business and personal assets, which he held with his brother. A lawsuit was filed in the Superior Court. The client was unable to stay current on the respondent’s fees. As a result, the respondent and the client agreed that, as the client’s assets were liquidated, he would pay at least half of what he received from liquidation of each asset against his account.
In June 2000, the client received proceeds from a real estate sale, but reneged on the fee agreement. On June 30, 2000, and without withdrawing as counsel in the pending litigation, the respondent filed suit against the client for unpaid legal services. In August 2000, the respondent argued a motion on the client’s behalf in the Superior Court case. The respondent argued the motion because he was concerned that his withdrawal before the argument of the motion might be seen by the court and by the client’s brother as an indication of weakness in the client’s position and because the client had not secured new counsel. After the motion was argued, the respondent filed a motion to withdraw, which was allowed over the client’s objection.
The respondent’s failure to withdraw from representation before filing suit against his client is a conflict of interest in violation of Mass. R. of Prof. C. 1.7(b). The respondent was admitted to practice in 1981 and has no prior discipline. The respondent received an admonition for his conduct.
ADMONITION NO. 01-36
CLASSIFICATIONS:
Improper Communication with Represented Person [Mass. R. Prof. C. 4.2]
Improper Threat or Presentation of Criminal or Disciplinary Charge
[Mass. R. Prof. C. 3.4(h)]
SUMMARY:
The respondent’s client sued his former employee for breach of an employment non-competition and non-disclosure agreement. At the onset of the litigation, the former employee retained counsel.
During the pendency of the lawsuit, the former employee telephoned the respondent to discuss settlement. The former employee informed the respondent that he wanted to resolve the case without his attorney and that he did not want to spend any more money on legal fees. The respondent did not advise the former employee that it was improper to discuss the case with him directly since he was represented by counsel. During this exchange, the respondent engaged the former employee in settlement negotiations. The respondent also advised the former employee that he had filed on his client’s behalf a criminal complaint with the Massachusetts Attorney General’s Office and that the former employee should therefore resolve the matter.
The respondent admitted that he discussed the case with the former employee and that he advised him that "rules existed that prohibited him from conversing with adverse parties represented by counsel." However, since the former employee was insistent that he wanted to resolve the matter without his attorney, the respondent attempted to settle the matter. The respondent believed that the former employee had effectively discharged his counsel.
Mass. R. Prof. C. 4.2 advises that " . . . a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." In this case, the respondent was obligated to insure either that the former employee was no longer represented or that counsel assented to the former employee’s discussing the matter directly with the respondent.
Mass. R. Prof. C. 3.4(h) prohibits a lawyer from presenting, participating in presenting or threatening to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter. In this instance, the respondent had initiated a criminal complaint with the Attorney General’s Office several months earlier. Since then, however, the respondent had repeatedly failed to cooperate with the Attorney General’s Office’s attempts to investigate the complaint. The Attorney General’s Office eventually closed the case because of the respondent’s lack of assistance. In these circumstances, therefore, the respondent’s threatening of criminal charges during the settlement negotiations was solely to gain an advantage in the civil case, in violation of Mass. R. Prof. C. 3.4(h).
The respondent was admitted to practice in 1992 and has no prior discipline. He received an admonition for the above violations.
ADMONITION NO. 01-37
CLASSIFICATIONS:
Neglecting a Legal Matter [DR 6-101(A)(3)]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
SUMMARY:
The respondent’s client was seriously injured in an industrial accident on July 24, 1992 while working for a tire company. Soon thereafter, the client started receiving temporary total weekly worker’s compensation benefits pursuant to G.L.c. 152, §34. In 1994, the client, with the assistance of the respondent, obtained social security disability benefits.
On October 15, 1995, an independent medical examination was performed in Florida where the client was then residing, resulting in a comprehensive written report that opined that the client’s injuries were permanent, but that his disability was partial. This opinion was consistent with the opinions of prior specialists who evaluated the client and a prior August 1993 IME. Based on this report, the client’s weekly compensation benefits were changed to §35 benefits, so called "temporary partial", and accordingly reduced about $60.00 per week. The respondent had no medical evidence to challenge this result.
On December 19, 1995 the worker’s compensation carrier offered a lump sum settlement redeeming future liability in the amount of $20,000.00. The client rejected the offer. At the time the client rejected the offer, he was unaware and was not informed that there was a time limitation on his receipt of weekly compensation benefits. The time limitation for §35 benefits is four (4) years.
On February 27, 1996 the respondent sent a letter to the insurer offering to settle for a lump sum payment of $75,000.00. At this time, the respondent had no medical evidence indicating that the client’s disability was total, and thus nothing to contradict the IME report. The offer was thus rejected.
On June 16, 1997 the insurer offered a structured settlement of a lump sum payment of $5,000.00 and a guaranteed pay-out of weekly compensation benefits (in the form of an annuity) for two years. The total value of the settlement was $20,300.00. On August 20, 1997 the respondent discussed the case with the insurer, and with the client’s knowledge, rejected the offer. At the time that the client rejected the offer, he was unaware that his weekly compensation benefits would expire in about two years.
On December 4, 1997 the insurer wrote to the respondent and reminded him that the §35 benefits would expire after four years in an effort to get the respondent to accept the previous offer. The client was unaware of this letter.
On August 26, 1999 the insurer sent the respondent a letter informing the respondent that the weekly compensation benefits had been exhausted. For all practical purposes, this ended any potential for a lump sum settlement. If the client had accepted the 1997 offer, his economic gain over what he ultimately received would have been no more than $6,000.00 dollars.
The respondent had an affirmative duty to communicate to his client the time limitations on collection of §35 benefits and the fact that, over time, the potential value of a lump sum settlement redeeming future liability diminished. The respondent’s inadequate communication, prior to January 1, 1998, was in violation of Canon Six, DR 6-101(A)(3). The respondent’s conduct after January 1, 1998 was in violation of Mass. R. Prof. C. 1.4.
The respondent received a prior admonition in 1998 for failing to promptly remit an unearned retainer upon discharge and inadequate IOLTA record keeping. In this matter, the respondent received an admonition conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 01-38
CLASSIFICATION:
Conflict from Responsibilities to Another Client or Lawyer’s Own Interests [Mass. R. Prof. C. 1.7(b)]
SUMMARY:
In June of 1993, the respondent requested and obtained a $25,000 loan from a personal friend and occasional client ("the decedent"). The respondent was to pay 10% interest on the loan in semi-annual payments over the next five years, with the $25,000 principal due on June 25, 1998. Before agreeing to make the loan, the decedent consulted with independent counsel, who advised him to seek security for the loan from the respondent. The terms of the loan were modified so that the loan was secured by a mortgage on property owned by the respondent. The respondent signed the note on June 25, 1993, and recorded the mortgage at the registry of deeds.
In March of 1995, the decedent was diagnosed with cancer, and began treatment. The decedent, who previously had been divorced, was living with his girlfriend who acted as his caregiver until his death in 1998.
On August 25, 1997, the respondent executed a new promissory note to the decedent. The respondent intended the 1997 note to replace the 1993 note. Instead of a balloon payment of $25,000 due on June 25, 1998, the 1997 note provided for monthly payments of $400.00 by the respondent to the decedent and the girlfriend over the next eight years. The 1997 note was payable to the decedent and the girlfriend "jointly or severally".
The 1997 note included a provision indicating that it was to be secured by a mortgage from the respondent of the same real property which served as security for the 1993 note. On December 17, 1997, the respondent executed a new mortgage to the decedent and the girlfriend to secure the 1997 note, but this mortgage was never recorded. The respondent prepared and signed the 1997 note, together with a discharge of the old mortgage, and forwarded them to the decedent. The decedent never discharged the old mortgage or released the respondent from the 1993 note before he died.
The decedent died on January 17, 1998. Before his death, the respondent began making payments under the 1997 note. In total, the respondent made four payments of $400 on the 1997 note which were accepted by the decedent before his death. After the decedent’s death, the respondent made three more payments to the girlfriend.
The decedent’s will nominated the respondent to serve as executor of his estate. The sole beneficiaries of the decedent’s estate are his two adult children from his prior marriage. The children discussed the 1993 note with the respondent on January 22, 1998, and he fully disclosed to them the existence of the 1997 note, and informed them that there might be questions as to which note controlled. The respondent recommended that the children obtain counsel regarding the issue of the notes and other questions they had about the estate. Despite their knowledge of this possible dispute and the respondent’s personal interest in its resolution, the children assented to the respondent’s appointment as temporary executor of their father’s estate. The respondent was appointed temporary executor on February 18, 1998.
On or about February 5, 1998, the respondent sent a letter to the girlfriend enclosing a copy of the amortization schedule "regarding the loan of $25,000 I received from you and . . . [the decedent] in August of 1997." Subsequently by letter dated March 24, 1998, the respondent, while serving as temporary executor of the decedent’s estate, informed the girlfriend’s counsel that he would proceed to record the mortgage payable to the girlfriend.
On March 18, 1998, counsel for the children filed an appearance in the Probate Court estate matter. Shortly thereafter the children withdrew their assents to the respondent’s appointment as permanent executor, and filed objections to his appointment as permanent executor. The respondent withdrew his petition for appointment as executor, and on June 3, 1998, an independent lawyer was appointed executor of the decedent’s estate.
On or about July 16, 1998, the executor wrote to the respondent indicating that he was taking the position that the 1993 note was due and payable to the estate because the decedent never relinquished or cancelled the 1993 note before his death. On or about September 4, 1998, the executor sent a notice of intention to foreclose to the respondent due to his failure to pay the $25,000.00 in principal on the 1993 note which payment was due on June 25, 1998.
On or about September 18, 1998, the respondent paid the estate $5,000 as a partial payment of principal on the 1993 note. On or about October 27, 1998, the respondent made the final payment of $20,000 to the estate, using funds he borrowed from a friend.
Thereafter, the girlfriend brought suit against the estate on the 1997 note, which the estate settled for $8,700.
The respondent should not have sought or accepted appointment as temporary executor of the decedent’s estate given his knowledge that there was an actual dispute over which note controlled, his own financial interest in the resolution of this dispute, and his responsibilities to the girlfriend. The respondent’s communications with the girlfriend and her counsel before and during the term of his temporary executorship show that he intended to continue making payments under the 1997 note, although the estate’s beneficiaries wanted to obtain payment under the 1993 note, which had never been discharged. When the respondent’s appointment as temporary executor expired, and an independent counsel was appointed as permanent executor, the permanent executor pursued the respondent and ultimately obtained his payment of the overdue 1993 note.
Although the respondent believed that it was the decedent’s intention that the girlfriend receive the $25,000, and not his estate, the respondent’s conduct in accepting the appointment as temporary executor violated Rule 1.7(b) of the Massachusetts Rules of Professional Conduct. The respondent could not have reasonably believed that his actions as fiduciary to the estate would not be adversely affected by his own personal interests in the matter, or by his responsibilities to the girlfriend. He therefore should have declined the appointment as temporary executor.
In mitigation, the respondent did disclose the conflict to the beneficiaries when they inquired and there was no ultimate harm to the estate because the respondent withdrew his petition for appointment as permanent executor before the date the balloon payment of $25,000 principal under the 1993 note was due. The respondent did not misuse his position as temporary executor to delay his payment of the 1993 note.
In further mitigation, the respondent has no prior discipline of record.
Based on the foregoing, the respondent received an admonition for his conduct in this matter.
ADMONITION NO. 01-39
CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]
SUMMARY:
The respondent received an admonition for misconduct in three unrelated cases.
The first file was opened upon receipt by Bar Counsel of a notice of a dishonored check drawn on the respondent’s IOLTA account. On December 27, 1999 a check for $3,305.91 was returned, resulting in an overdraft of $3,010.59. The overdraft occurred because the respondent disbursed the net due to a personal injury claimant immediately prior to deposit of the settlement proceeds check. The respondent did so thinking that the deposit would clear before presentment of the claimant’s check. The claimant was anxious to obtain his settlement due to the upcoming holidays. The check was re-presented on December 30, 1999, after the deposit item had cleared, and was honored.
Review of the respondent’s IOLTA account showed that the account was properly used for deposit of settlements of personal injury cases and that clients were paid their shares of the settlement. At no time did the respondent withdraw for his fees more than was due. However, he did not always promptly withdraw fees that were in fact earned, as required, and his record keeping was inadequate. The respondent withdrew fees in aggregate amounts often not by check, but by transfer into his business account. His record of allocation of these withdrawals consisted of handwritten notations on the "customer receipt" for the withdrawal. It was difficult to reconstruct which withdrawals pertained to which clients.
The respondent also combined deposits of settlement checks into one deposit slip, but did not keep individual client ledgers. His only record of the allocations were handwritten notes on his copy of the deposit slips. These notations were not always complete. In at least one case, there was no allocation of a deposit representing five settlements.
The respondent’s conduct, as described above, constituted commingling and inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a).
In the second file, the respondent failed to timely transmit his client’s file to successor counsel despite repeated letters and calls. The respondent’s conduct in this regard was in violation of Mass. R. Prof. C. 1.16(e).
In the third file, despite repeated letters and calls, the respondent failed to communicate to successor counsel that he did not possess a file that his client thought that he had. The respondent’s conduct in this regard was in violation of Mass. R. Prof. C. 1.16(e).
The respondent was admitted in 1986 and had no prior discipline. He received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-40
CLASSIFICATIONS:
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
SUMMARY:
On April 28, 1997 the respondent was retained to represent a client in connection with a divorce. At that time, the client mailed to the respondent a check in the amount of $3,500.00 and returned an executed fee agreement. The check was a retainer to be billed against an hourly rate of $150.00 per hour. The fee agreement acknowledged receipt of the retainer and spelled out the hourly rate. The fee agreement also provided that the client would receive an accounting within thirty days of the termination of the representation.
The representation concluded in May 1999. Subsequent to May 1999 the client called the respondent on several occasions to obtain an accounting of her retainer, but her calls were not returned. On January 4, 2001 the client wrote to the respondent, expressed her opinion that the retainer had not been earned and asked for an accounting and return of the unused portion of her retainer. The respondent did not respond to this letter.
On February 8, 2001 the client filed a complaint with Bar Counsel complaining of the lack of an accounting. On April 6, 2001 the respondent responded to the complaint and for the first time provided an accounting showing that the client’s retainer had in fact been earned.
In the course of investigating the file, Bar Counsel discovered that the retainer inadvertently was not deposited into the respondent’s IOLTA or other trust account. Instead, it was placed into his business operating account by support staff. The retainer was deposited into the wrong account due to lax office procedure and inadequate supervision that existed at the time. The respondent currently requires an attorney in the office to review all deposit items to assure deposit into the correct account.
The respondent’s failure to promptly provide his client with an accounting of the client’s retainer was in violation of Mass. R. Prof. C. 1.15(b). The respondent’s negligent deposit of client funds into his business operating account constituted commingling in violation of Mass. R. Prof. C. 1.15(d). The respondent received an admonition for the above violations.
ADMONITION NO. 01-41
CLASSIFICATION:
Trust Account requirements [Mass. R. Prof. C. 1.15]
SUMMARY:
The respondent used his IOLTA account as his office operating account. He did not maintain a separate office operating account and, accordingly, deposited earned fees into his IOLTA account, as well as client funds and funds advanced for costs and filing fees. The respondent regularly paid personal bills from earned fees. There was no conversion or other misuse of funds.
After being contacted by Bar Counsel, the respondent opened a separate operating account, received instruction on trust accounting and attended a CLE program recommended by Bar Counsel.
The respondent, who had no disciplinary history, received an admonition for violation of Mass. R. Prof. C. 1.15.
ADMONITION NO. 01-42
CLASSIFICATIONS:
Neglecting A Legal Matter [DR 6-101(A)(3)]
Failure To Represent A Client Zealously [DR 7-101(A)(1)(2)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
SUMMARY:
On or about November 17, 1996, the respondent accepted a $1,000.00 check from a client to seek termination of child support obligations. The client alleged that he was not the minor child’s biological father. The client subsequently moved to Minnesota but periodically communicated with the respondent. The respondent initially provided the client with copies of pleadings and represented that the respondent was awaiting court dates.
Although the respondent prepared pleadings and other documents, the pleadings were filed in the wrong county. After the pleadings were returned, the respondent did not refile the pleadings or make any appearances on behalf of the client in the court which had jurisdiction over the divorce action. Consequently, the client was obligated to pay child support until August 12, 1999 when the child reached the age of emancipation. The client also had to pay penalties and interest on the arrearages owed for child support.
The respondent admitted to neglect of the matter and agreed to refund the $1,000.00 retainer. The respondent argued in mitigation that the client was unlikely to succeed since the law did not favor his position that he should not be obligated to pay child support simply because he was not the biological father.
The respondent’s conduct was in violation of Canon Six, DR 6-101(A)(3), Canon Seven, DR 7-101(A)(1),(2), and after January 1, 1998, Mass. R. Prof. C. 1.3.
The respondent has been a member of the Bar since 1983 and has no history of prior discipline. The respondent received an admonition for the above misconduct.
ADMONITION NO. 01-43
CLASSIFICATIONS:
Commingling Clients' Funds with Lawyer's Funds [DR 9-102(A)]
Failure to Maintain Proper Records of Client's Property [DR 9-102(B)(3)]
Neglecting a Client [DR 6-101(A)(3)]
SUMMARY:
In or around August 1993, the respondent was retained to represent an alcoholic and mentally disabled client in a personal injury matter resulting from a automobile accident that occurred on June 23, 1993. The client also retained the respondent to represent him on several criminal matters. Subsequently, the client also asked the respondent to handle another personal injury claim against a supermarket chain. In this matter, he claimed to have been injured when he was detained by a store security guard for suspicion of shoplifting in January 1994. The respondent agreed to look into that claim.
The client’s insurer in the motor vehicle tort matter issued two PIP checks to the client totaling $8000. A check in the amount of $532.20 was sent to the respondent on November 1, 1993, and the respondent deposited it into his IOLTA account, on December 3, 1993. A second check in the amount of $7,467.80, was sent to him on or about August 2, 1994, and deposited into the IOLTA account on August 30, 1994. The client endorsed these checks and agreed that the respondent was to hold the money in the account to cover the respondent’s legal fees for the criminal matters and to cover any liens that might be placed on the respondent’s file by medical providers.
The respondent’s bank records show that the respondent deposited both personal and client funds into his IOLTA account and that he used the account to pay both personal and client expenses. The respondent did not keep accurate records of transactions. He failed to withdraw fees in full as earned and he withdrew fees piecemeal. He did not keep a separate ledger for each client, did not keep sufficient track of funds remaining due and did not reconcile his own records with bank statements. As a result, he occasionally withdrew more than he was owed. His conduct in these respects constitutes commingling and inadequate record keeping, in violation of Canon Nine, DR 9-102(A) and (B)(3).
In the instant case, the respondent prematurely withdrew his fees in the criminal cases from the PIP funds. However, he did pay the client all that the client was owed from the PIP funds and in fact refunded additional fees because he felt sorry for the client. In the end, the respondent was paid only $1898 total on the client’s various criminal cases. The respondent was able to negotiate a plea agreement on the most serious of the criminal cases, resulting in a committed sentence of 3 to 3½ years. The client pled guilty in January 1996. The respondent then negotiated agreements for concurrent sentences in the other matters. One other criminal case remained unresolved when the client decided to discharge the respondent. A motion to withdraw was filed by the respondent and allowed by the court in or around August 1996.
The client’s motor vehicle tort claim was not resolved until September 2000. The case was tried on June 16, 1999 and the court found for the defendant. The case was then retransferred to Superior Court at the request of the client and trial was scheduled for September 21, 2000. The client failed to appear for trial but the case was settled in November 2000 for $1250. The respondent deposited the settlement check into his IOLTA account on December 19, 2000 and issued a check to the client in the amount of $1000. The remaining $250 was paid to the respondent as his fee.
The respondent never agreed to file suit on the second personal injury claim involving the supermarket. However, after the client filed a grievance against the respondent at the Board of Bar Overseers, and with the client’s consent, the respondent filed an action against the supermarket chain. The case was tried on July 6, 2000, and judgment was entered for the defendant. Although it appears that the respondent diligently represented the client after filing suit in 1997, his failure to clearly communicate with the client in 1994 as to whether or not he would pursue the case constituted neglect in violation of Canon Six, DR 6-101(A)(3).
The respondent is a solo practitioner and has been a member of the bar since 1974. He has no prior discipline. The respondent acknowledged his accounting problems and signed an agreement placing him on accounting probation for a period of two years. He has hired an accountant to organize and manage his accounts, and now keeps separate ledger sheets for all clients. The respondent received an admonition for his conduct in this matter conditioned upon his compliance with the probation agreement and upon his attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-44
CLASSIFICATIONS:
Neglecting A Legal Matter [DR 6-101(A)(3)]
Failure To Represent A Client Zealously [DR 7-101(A)(1)
Failure To Maintain Proper Records of Client’s Property [DR 9-102(B)(3)]
Failure To Turn Over Timely Trust Or Escrow Funds [DR 9-102(B)(4)]
SUMMARY:
The respondent represented the client in a personal injury claim arising out of a November 1990 automobile accident. By late 1992, the respondent had negotiated settlements with two insurers and deposited $38,000.00 in settlement proceeds to his IOLTA account. The respondent also commenced an action in October of 1993 against the used car dealership which sold the client the vehicle.
The respondent initially disbursed only $4,333.00 to the client and did not provide a settlement statement showing the receipt and disbursement of funds. The balance of the settlement proceeds remained in the respondent’s IOLTA account because the respondent needed to resolve unpaid medical bills and because the respondent believed that the client had asked the respondent to hold the funds while the client was in prison. The client denies any such agreement.
After the client filed a complaint to Bar Counsel in 1997, the respondent and the client agreed that the respondent would continue to hold only the amount of the unpaid medical bills and that the respondent would promptly compromise the medical bills. The respondent disbursed $7,237.14 to the client in January of 1998 and retained $9,075.30 to compromise the unpaid medical bills. After compromising the medical bills, the respondent disbursed an additional $4,230.15 to the client in April of 1998.
The lawsuit against the used car dealership was dismissed in October of 1996 for failure to make service of process. The respondent did not notify the client and the client was unaware of the dismissal. The respondent allowed dismissal of the action because there was no insurance to satisfy a judgment and the business was insolvent.
The respondent neglected the client’s matter by failing to promptly make disbursements and to account for the settlement proceeds, in violation of Canon Nine, DR 9-102(B)(3),(4). He also failed to advise the client of his decision to allow the court action to be dismissed, in violation of Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7-101(A)(1).
The respondent has been a member of the Bar since 1958 with no prior discipline. The respondent received an admonition for the above misconduct, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-45
CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)(2)]
SUMMARY:
This matter came to Bar Counsel’s attention as the result of Bar Counsel’s receipt pursuant to Mass. R. Prof. C. 1.15(f) of a notice of dishonored check from the bank in which the respondent maintained her IOLTA account. The check at issue was payable to a medical provider for $275 and payment would have caused an overdraft of $180. The check has since been paid.
Review of the respondent’s IOLTA account records revealed several record keeping problems. Most critically, a settlement check for $10,000 was inadvertently deposited to a personal account. However, because the respondent did not realize her mistake, the disbursements to the client and for the respondent’s fee were made from the IOLTA account and covered by the float. The float in turned was increased by the respondent’s failure in certain other cases to withdraw fees in full as earned. Because the IOLTA account was not routinely or adequately reconciled, the errant $10,000 deposit was not discovered for several months, until after Bar Counsel commenced its investigation and caused the respondent to do a full review of her records. In the interim, after discovering the shortfall but without having ascertained the cause, the respondent nonetheless had used the earned fees remaining in the account to correct the problem. A small miscalculation in that respect led to the dishonored check for $275.
The respondent’s conduct in failing to reconcile her IOLTA account constituted inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a). Her failure to withdraw fees from the IOLTA account in full as earned constituted commingling, in violation of Mass. R. Prof. C. 1.15(a) and 1.15(d)(2).
The respondent has been a member of the Bar since 1989 with no prior discipline. She has now made satisfactory changes to her record keeping. She accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-46
CLASSIFICATIONS:
Notice of Dishonored Check [DR 9-103]
Commingling Clients’ Funds With Lawyers’ Funds [DR 9-102(A)]
Failure to Maintain Proper Records of Clients’ Property [DR 9-102(B)(3)]
SUMMARY:
This matter came to Bar Counsel’s attention as a result of the receipt of three notices of dishonored checks from the bank in which the respondent maintained her IOLTA account.
Bar Counsel’s review of bank records for the respondent’s IOLTA and operating accounts showed that the respondent’s funds were commingled with client funds in both accounts. The overdrafts were a function of the respondent’s bookkeeping errors as well as her failure to have all clients’ funds held separately and administered through her IOLTA account. No deprivation or misuse of client funds resulted from the respondent’s inadequate recordkeeping. The respondent’s client funds appear to have remained intact in the two accounts.
The respondent acknowledged her inadequate recordkeeping and improper commingling of funds. She has put in place new computer recordkeeping and accounting practices in order to address these problems.
The respondent’s commingling of personal and client funds was in violation of Canon Nine, DR 9-102(A). Her failure to maintain adequate records of the handling, maintenance and disposition of client trust funds was in violation of Canon Nine, DR 9-102(B)(3).
In mitigation, during the relevant time period the respondent was suffering from severe chronic depression, aggravated by the death of her sister in 1994, the respondent’s extensive caretaking responsibilities for her mother with Alzheimer’s disease until her mother’s death in 1996, and other serious personal and medical issues. The respondent has obtained professional assistance for these problems.
The respondent, who was admitted to practice in 1981 and had received no prior discipline, received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-47
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 as the result of Bar Counsel’s receipt pursuant to Mass. R. Prof. C. 1.15(f) of a notice of dishonored check from the bank in which the respondents maintained their IOLTA account. In July 2000, the respondents’ law firm represented a client in a real estate closing. Also in July 2000, a check in the amount of $85,576, representing the net proceeds, was remitted to the client after the closing and paid by the bank on July 28, 2000. After payment of this check, the firm held no funds for this client.
In October 2000, the respondents’ accountants completed a reconciliation of the IOLTA account check register and bank statements and reported that no checks were outstanding. This report was in error because five checks, totaling over $43,000, had not been paid. In addition, the bank for several months had been improperly debiting the interest on a loan to the firm from the IOLTA account rather than a firm account, a problem that neither the accountants nor the respondents had noticed.
Relying upon the accountants’ report that all outstanding checks had cleared, the respondents decided, incorrectly, that the balance in the IOLTA account of $35,697 must consist primarily of funds withheld from the net proceeds of the July closing with which to pay fees in the amount of $33,600 due from that client on various other matters. The respondents accordingly transferred $33,600 to a firm account from the IOLTA account in October and November 2000. Later in November, however, one of the checks that the accountants had missed, in the amount of $30,500, was presented to the bank. Payment of this check resulted in an overdraft because of the deficiency created by the payment of $33,600 to the firm. The respondents reimbursed the account from personal funds for the fees withdrawn in error.
Although the respondents are not responsible for their accountants’ errors, their record keeping was nonetheless inadequate, in violation of Mass. R. Prof. C. 1.15(a). The respondents did not maintain individual ledgers for clients whose funds were in the IOLTA account. They thus not only had no ledger showing a balance held for the client from the July closing, but also made no independent effort to confirm their supposition that the firm had withheld funds from the closing with which to pay outstanding legal fees. A cursory review of the file from the closing and of the trust account check register would have shown that the net proceeds from the closing had been disbursed in full to the client without a holdback. In addition, it is the respondents, not their accountants, who should have seen from the IOLTA account statements that the bank was debiting the wrong account for loan interest.
The respondents have now instituted changes to their record keeping procedures to prevent a recurrence of these problems. They accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 01-48
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 as a result of the receipt of a notice from a bank of a dishonored check drawn on the respondent’s IOLTA account. The check in question was in the amount of $2,358.33, and payment would have created an overdraft of $340.35.
The dishonored check was for the August 1999 monthly mortgage payment for the respondent’s personal residence. On two prior occasions, in June and July of 1999, the respondent authorized the mortgage company to withdraw his monthly mortgage payments from his IOLTA account. These payments were covered by fees derived from the respondent’s share of a settlement deposit which he had made to the account on behalf of a client but not yet distributed to himself. After the June and July transactions, the respondent realized that there might be a problem with making his mortgage payments directly from his IOLTA account, and instructed the mortgage company to take all future mortgage payments from his personal account. Despite this request, the mortgage company mistakenly took the August payment from the respondent’s account. Because the respondent was expecting to have the August payment made from his personal account, that account had sufficient funds to cover the payment. When the respondent received notice that the payment had mistakenly been made from his IOLTA account, he promptly deposited sufficient personal funds to restore the IOLTA account to the proper balance.
The IOLTA account was properly used by the respondent for the deposit of client settlements, and clients were properly paid their shares of the settlements. However, by making personal mortgage payments directly from his IOLTA account using fees he had deposited in the account but not yet distributed to himself, the respondent engaged in commingling of business and personal funds, in violation of Mass. R. Prof. C. 1.15(a).
The respondent now recognizes that he cannot pay his own obligations directly from fees remaining in the IOLTA account, and has corrected his record keeping to Bar Counsel’s satisfaction.
The respondent, who was admitted to practice in 1983 and had received no prior discipline, received an admonition on the condition that he attend a CLE program designated by Bar Counsel.
ADMONITION NO. 01-49
CLASSIFICATIONS:
Handling a Legal Matter when Not Competent or without Adequate Preparation [Rule 1.1]
Failing to Act Diligently [Rule 1.3]
Failing to Communicate Adequately With Client [Rule 1.4]
SUMMARY:
In three separate matters, the respondent neglected clients’ personal injury suits resulting in the initial dismissal of the clients’ claims. In two of the cases, the clients’ suits were dismissed as a result of their failure to respond to discovery. In the third matter, the case was dismissed as a result of the respondent’s failure to appear at a scheduled pre-trial conference. The respondent failed to timely advise the clients that their cases had been dismissed, or to undertake any action to remove the dismissals.
The respondent’s neglect of his clients and their legal matters, resulting in the initial dismissal of their claims, violated Rules 1.1 and 1.3 of the Massachusetts Rules of Professional Conduct. His failure to adequately communicate with his clients violated Rule 1.4 of the Massachusetts Rules of Professional Conduct.
In mitigation, during the relevant time period, the respondent was suffering from severe chronic depression, which resulted in his hospitalization for six weeks. Also during the relevant time period, the respondent’s father died of cancer.
In further mitigation, successor counsel were able to remove the dismissals and to revive the clients’ cases. The respondent is not currently practicing law.
The respondent, who was admitted to practice in 1982, and who had received no prior discipline, received an admonition for his conduct.
ADMONITION NO. 01-50
CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation
[Mass. R. of Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
SUMMARY:
In June 1998, the respondent was retained to represent the client with regard to filing an H-1B temporary specialty occupation employment visa. At that time, the client had a so-called employment authorization document, which was set to expire on August 1, 1998.
On July 31, 1998, the respondent filed the H-1B petition with the Immigration and Naturalization Services (“INS”). The INS received the client’s petition on August 3, 1998. At that time, the client
