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Commonwealth of Massachusetts


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, ß 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, ß3 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, ß11.

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, ß3 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, ß3 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 ß 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 ß 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, ß 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, ß3 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, ß3 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 Lawyerís 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 respondentís fees. As a result, the respondent and the client agreed that, as the clientís 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 clientís 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 clientís brother as an indication of weakness in the clientís 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 clientís objection.

The respondentís 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 respondentís 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 clientís behalf a criminal complaint with the Massachusetts Attorney Generalís 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 employeeís 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 Generalís Office several months earlier. Since then, however, the respondent had repeatedly failed to cooperate with the Attorney Generalís Officeís attempts to investigate the complaint. The Attorney Generalís Office eventually closed the case because of the respondentís lack of assistance. In these circumstances, therefore, the respondentís 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 respondentís 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 workerís compensation benefits pursuant to G.L.c. 152, ß34. 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 clientís 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 clientís weekly compensation benefits were changed to ß35 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 workerís 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 ß35 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 clientís 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 clientís 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 ß35 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 ß35 benefits and the fact that, over time, the potential value of a lump sum settlement redeeming future liability diminished. The respondentís inadequate communication, prior to January 1, 1998, was in violation of Canon Six, DR 6-101(A)(3). The respondentís 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 Lawyerís 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 decedentís death, the respondent made three more payments to the girlfriend.

The decedentís will nominated the respondent to serve as executor of his estate. The sole beneficiaries of the decedentís 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 respondentís personal interest in its resolution, the children assented to the respondentís appointment as temporary executor of their fatherís 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 decedentís estate, informed the girlfriendís 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 respondentís 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 decedentís 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 decedentís 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 respondentís 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 estateís beneficiaries wanted to obtain payment under the 1993 note, which had never been discharged. When the respondentís 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 decedentís intention that the girlfriend receive the $25,000, and not his estate, the respondentís 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 respondentís 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 claimantís 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 respondentís 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 respondentís 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 clientís file to successor counsel despite repeated letters and calls. The respondentís 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 respondentís 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 clientís 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 respondentís 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 respondentís failure to promptly provide his client with an accounting of the clientís retainer was in violation of Mass. R. Prof. C. 1.15(b). The respondentís 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 childís 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 respondentís 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 clientís 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 respondentís legal fees for the criminal matters and to cover any liens that might be placed on the respondentís file by medical providers.

The respondentís 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 clientís 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 3Ĺ 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 clientís 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 clientís 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 Clientís 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 respondentís 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 clientís 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 Counselís attention as the result of Bar Counselís 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 respondentís 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 respondentís fee were made from the IOLTA account and covered by the float. The float in turned was increased by the respondentís 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 respondentís 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 Clientsí Funds With Lawyersí Funds [DR 9-102(A)]
Failure to Maintain Proper Records of Clientsí Property [DR 9-102(B)(3)]

SUMMARY:

This matter came to Bar Counselís 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 Counselís review of bank records for the respondentís IOLTA and operating accounts showed that the respondentís funds were commingled with client funds in both accounts. The overdrafts were a function of the respondentís bookkeeping errors as well as her failure to have all clientsí funds held separately and administered through her IOLTA account. No deprivation or misuse of client funds resulted from the respondentís inadequate recordkeeping. The respondentís 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 respondentís 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 respondentís extensive caretaking responsibilities for her mother with Alzheimerís disease until her motherís 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 Counselís attention as the result of Bar Counselís 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 respondentsí 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 respondentsí 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 accountantsí 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 accountantsí 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 Counselís attention as a result of the receipt of a notice from a bank of a dishonored check drawn on the respondentís 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 respondentís 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 respondentís 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 respondentís 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 Counselís 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 clientsí personal injury suits resulting in the initial dismissal of the clientsí claims. In two of the cases, the clientsí 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 respondentís 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 respondentís 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 respondentís father died of cancer.

In further mitigation, successor counsel were able to remove the dismissals and to revive the clientsí 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 (ďINSĒ). The INS received the clientís petition on August 3, 1998. At that time, the client was out of status and thus she was possibly not eligible for a change of status.

The respondent initially filed the petition without an approved prevailing wage statement or an approved labor certification application. Further, he did not submit the clientís educational information, I-94 card, passport and employment authorization document. The INS gave the respondent two months to correct the deficiencies.

The respondent did not receive the approved labor certification application from the Department of Labor before the INS deadline because he had submitted an incomplete application, which delayed the processing of the application. Further, it had taken the respondent over a month to file the labor certification application because he had difficulty obtaining the mailing address and fax number for the Department of Labor.

Since the client was out of status and the respondent did not meet the deadline to correct the petitionís deficiencies, the INS denied the clientís H-1B petition. The client voluntarily left the United States to return to her homeland, India. With the assistance of new counsel, the client successfully obtained the H-1B visa.

The respondentís failure to adequately prepare and his failure to use reasonable diligence to handle the H-1B visa petition was in violation of Mass. R. Prof. C. 1.1 and 1.3.

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


ADMONITION NO. 01-51

CLASSIFICATIONS:
Conflict from Responsibilities to Another Client or Lawyerís Own Interests [Mass. R. Prof. C. 1.7(b)]
Improper Use of Confidential Information [Mass. R. Prof. C. 1.8(b)]

SUMMARY:
The respondent served as trustee of two trusts. The respondentís mother and uncle were the beneficiaries under the first trust. The respondent and his two brothers were beneficiaries under the second trust. The second trust owned property in which the respondent's uncle had lived for five years. In January 1999, the respondent distributed the trust corpus to the beneficiaries of the first trust. The respondent withheld a portion of the funds from distribution to his uncle, a beneficiary of the first trust, as leverage to convince his uncle to make rental payments and a security deposit payment which the respondent believed his uncle owed to the second trust. In so doing, the respondent used the confidential information he acquired in his role as trustee of both trusts to the detriment of one of the beneficiaries and for his own benefit. In addition, the respondent violated his fiduciary obligation to his uncle, a beneficiary of the first trust, by withholding his full distribution from the first trust in order to coerce the uncleís payment of rent and a security deposit payment to the second trust, of which the respondent was both the trustee and a beneficiary.

In mitigation, the respondent did not use the withheld funds to satisfy the outstanding rental payments. The funds remained in the trust account for the first trust for six months until June of 1999, when the respondent distributed the funds to his uncle.

The respondent used confidential information he acquired in his role as trustee of two trusts to the disadvantage of a beneficiary and for his own advantage, in violation of Mass. R. Prof. C. 1.8(b).

By representing multiple clients when the representation of one client was materially limited by the respondentís responsibilities to another client or to a third person or by the lawyerís own interests, the respondent violated Mass. R. Prof. C. 1.7(b).

The respondent was admitted to practice in 1987 and has no prior discipline. He received an admonition for his conduct.


ADMONITION NO. 01-52

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

SUMMARY:
The client retained the respondent in early January of 2000 to represent her in a child custody dispute. The respondent filed an appearance and subsequently appeared for a hearing on January 14, 2000 as to a complaint for modification and for temporary orders based upon a preliminary determination by the Department of Social Services that the client abused her son. The court issued a temporary order which granted physical custody of both of the clientís children to the ex-husband.

The ex-husband subsequently filed an emergency motion to suspend visitation on February 7, 2000 and the court scheduled a hearing for February 15, 2000. The respondent did not file anything in opposition. The judge denied the ex-husbandís motion on February 15, 2000, however, because a witness subpoenaed by the client from the Department of Social Services advised the court that, after further investigation, the agency had made a determination that the client did not abuse her son.

The client had wanted the respondent to file a motion to attempt to regain custody of her children and requested that the respondent schedule her motion for hearing on February 15, 2000, the same day as the ex-husbandís motion. Instead of preparing the motion, affidavits, and subpoenas, the respondent provided the client with blank letterhead and had the client draft the documents. Although the client prepared the documents, the motion was never heard because the respondent failed to file and serve the motion in a timely manner.

By failing to seek the clientís lawful objectives and by failing to represent the client zealously, the respondent violated Mass. R. Prof. C. 1.2(a) and Mass. R. Prof. C. 1.3.

The respondent has been a member of the Bar since 1992 and received an admonition for neglect of another legal matter in 1997. Since the representation here was brief and there was little or no actual harm to the client, the respondent received an admonition for the above misconduct.


ADMONITION NO. 01-53

CLASSIFICATIONS:
Neglect of a Legal Matter [DR 6-101 (A) (3)]
Failing to Act Competently [DR 6-101 (A) (1)]
Handling Legal Matter Without Adequate Preparation [DR 6-101 (A) (2)]
Handling Legal Matter When Not Competent [Mass. R. Prof. C. 1.1)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3)]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4)]

SUMMARY:
The respondent was retained by an elderly man and paid $2,500 to file a lawsuit against his neighbor in a boundary dispute.

In December 1994, the respondent filed suit in Land Court. He then took no further action until 1998. In July 1997, the client called the respondent and asked him to contact the defendantsí attorney to discuss settlement. At that time, the respondent agreed to arrange a settlement meeting with the opposing parties. The respondent called opposing counsel once. However, he did not follow up to discuss settlement.

In June 1998, the clientís daughter met with the respondent to discuss the case. At that time, she asked the respondent to contact the Land Court to schedule a trial date. The respondent assured the daughter that he had followed proper procedures and that he was waiting for the Land Court to set a trial date. Shortly thereafter, the respondent filed a motion to request a trial date. The respondent did not receive a trial date and he made no further inquiries.

In August 1999, the clientís daughter wrote to the respondent and requested an update. The respondent in turn wrote the daughter and instructed her to come to his office to pick up the file since she was unhappy with how he was handling the case.

The respondent, a general practitioner admitted to practice in 1979, is relatively inexperienced in Land Court matters. The case at bar was the first Land Court case he handled in its entirety. The respondent did not seek a trial date prior to 1998 because he was unaware that the Land Court did not automatically schedule cases for trial or that he had to specifically request a trial date. The respondent should also have followed up with opposing counsel regarding the possibility of settlement.

The respondentís four-year delay in requesting a trial date, his failure to communicate adequately with his client, his failure to use reasonable diligence, thoroughness and promptness in representing the client is in violation of Canon Six, DR 6-101 (A) (1), (2), (3), as well as Mass. R. Prof. C. 1.1, 1.3 and 1.4.

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


ADMONITION NO. 01-54

CLASSIFICATIONS:
Aiding in Unauthorized Practice of Another [DR 3-101(A)]
Unauthorized Practice of Law [Mass. R. Prof. C. 5.5(b)]

SUMMARY:
The respondent sublet space from a person [the landlord] who held himself out as being admitted as an attorney in two countries outside the United States. The respondent was listed as ďof counselĒ on the letterhead used by both the respondent and his landlord. He also accepted referrals from his landlord.

Four years earlier the landlord had entered into a consent decree with the Attorney Generalís office prohibiting him from engaging in the unauthorized practice of law. Despite the consent decree, the landlord was continuing to represent persons before the Immigration and Naturalization Service.

In mitigation, at the time the respondent began his association with the landlord he had only very recently been admitted to practice, and was very inexperienced. In addition, he was unaware of his landlordís previous difficulties with the Attorney Generalís office.

By allowing his name to appear on the letterhead of a person who is not a member of the bar, and by using the letterhead himself, the respondent assisted a person who is not a member of the bar in giving the impression that he was authorized to practice law in Massachusetts, thereby violating Canon Three, DR 3-101(A) and Mass. R. Prof. C. 5.5(b). The respondent received an admonition for his conduct.


ADMONITION NO. 01-55

CLASSIFICATION:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]

SUMMARY:
This matter came to Bar Counselís attention in November 1999 pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt of a notice of dishonored check from the bank in which the respondent maintained his IOLTA account.

The respondent is admitted in both Massachusetts and a neighboring state. He maintains an IOLTA account in both states. The dishonored check in question resulted from the respondent withdrawing from his Massachusetts account an earned fee on a case in the other state. There were inadequate funds in the Massachusetts account to cover the check.

Bar Counselís review of the respondentís IOLTA account showed that he improperly deposited earned fees into the IOLTA account. The respondentís conduct in this matter constituted commingling, in violation of Mass. R. Prof. C. 1.15(a). The respondent received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-56

CLASSIFICATION:
Failing to Act Diligently [Mass. R. of Prof. C. 1.3]

SUMMARY:
The client retained the respondent to represent him in an employment discrimination matter pending at the Massachusetts Commission Against Discrimination (ďMCADĒ). The client alleged retaliation, creed and age discrimination. The retaliatory conduct allegedly began in 1988 after the client received a probable cause finding from the MCAD against the employer.

In June 1999, the respondent entered an appearance. On May 1, 2000, the MCAD wrote to the respondent advising him that the ninety-day period for discovery had expired without the parties conducting discovery. The letter went on to say that if the parties did not jointly opt to waive the submission of a memorandum of law and fact, the memorandum must be submitted by May 17, 2000.

In October 2000, the MCAD found lack of probable cause to credit the clientís allegations of retaliation and discrimination. The MCADís decision indicated that the respondent failed to submit a memorandum of law and fact and that the client did not establish a prima facie case of retaliation and failure to promote based on his age and creed.

The client then retained new counsel to appeal the lack of probable cause finding. During the hearing of the appeal, the MCAD raised concerns about the timeliness of the clientís claims since the alleged violations began in 1988. At that time, the MCAD instructed the client to submit a supplemental memorandum on whether incidents occurring outside the six-month statute of limitations period could be considered under the continuing violation theory. Although the clientís new counsel complied with this request, the MCAD affirmed the lack of probable cause finding. The client therefore may not have suffered actual injury as a result of the respondentís neglect, since the bulk of the alleged violations occurred outside the six-month statute of limitations.

The respondentís failure to file the necessary memorandum putting forth the facts in support of the clientís claim, or otherwise to provide any basis for a finding of probable cause, is in violation of Rule 1.3 of the Mass. R. of Prof. C. The respondent received an admonition conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-57

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)(2)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
In January 1999 a client and his cousin paid the respondent a retainer of $1,500 to oversee sale of property owned by the client and his mother. The clientís mother was in a nursing home and under guardianship. The guardian intended to sell a house owned by the client and his mother in order to obtain funds to pay for the motherís care, and had filed a complaint for partition of real estate in December 1998. The client was incarcerated at the time of the representation and named his cousin as his agent pursuant to a power of attorney. The client retained the respondent to assure that the property was sold at fair market value and that the client and his mother received their full share of the proceeds from that sale.

The property was sold in August 1999. The respondent deposited the clientís share of the proceeds into her IOLTA account, and took her fee of $450.00. In December 1999, four months later, the respondent sent a copy of closing documents to the client, together with a letter asking to whom the proceeds check should be payable. The respondent did not finally disburse the clientís share of the closing proceeds until February 2000. Between time of receipt and distribution the respondent did not place the funds, which were more than nominal in amount and held for more than a short period of time, in a separate interest-bearing account with interest payable as directed by the client.

Bar Counselís review of the respondentís accounts also showed that the respondent did not withdraw earned fees from the IOLTA account promptly when earned, and that she paid costs from her IOLTA account before corresponding deposits had been made.

The respondentís payment of client costs before corresponding deposits are on account violated Mass. R. Prof. C. 1.15(a). The respondentís failure to disburse client funds promptly after receipt violated Mass. R. Prof. C. 1.15(b). The respondentís failure promptly to remove earned fees from her client funds account violated Mass. R. Prof. C. 1.15(d)(2). The respondentís failure to place client funds which were more than nominal in amount and held for more than a short period of time in a separate interest bearing account with interest payable as directed by the client violated Mass. R. Prof. C. 1.15(e).

The respondent received an admonition for her conduct in this matter, conditioned on her attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-58

CLASSIFICATIONS:
Failing to Communicate Adequately with Client [Rule 1.4(a)]
Trust Account Commingling and Recordkeeping [Rule 1.15(a)]
Failure to Account to Client or Third Person for Property [Rule 1.15(b)]
Trust Account Requirements [Rule 1.15(d)]
Failure to Return Papers on Discharge [Rule 1.16(e)]
Failure to Cooperate in Bar Discipline Investigations [Rule 8.4(g)]

SUMMARY:
In three separate matters, the respondent failed to timely communicate with her clients, or to timely respond to their requests for an accounting of her fee or for the return of their files. She also failed to cooperate with Bar Counsel, necessitating the issuance of subpoenas to compel her appearance on two occasions.

In the first matter, the respondent was retained in May of 1998 to represent a client in a contested divorce matter. The client paid the respondent a $2000 retainer, which the respondent deposited to an office account, instead of to a client funds account. In addition, the client paid $500 by check to a private investigator for his work on her case. The client discharged the respondent in November of 1998, and requested an itemized bill from the respondent and a check for the unearned portion of her retainer.

The respondent failed to respond to repeated requests from the client and her successor counsel for an accounting regarding the respondentís fee and the private investigatorís charges. The client and her successor counsel wanted this information in connection with their defense of a small claims suit brought by the private investigator jointly against the respondent and the client for the residue of his fee. The respondent defaulted in the small claims action, and on November 17, 1999 a judgment entered against her for $1,260.00, representing the fee not paid to the private investigator for services rendered to the client. The respondent paid the entire judgment, and was not reimbursed for this expense by her client.

The respondentís failure to deposit her unearned retainer in a client funds account violated Rules 1.15(a) and (d) of the Massachusetts Rules of Professional Conduct. In mitigation, the respondent in a short period of time provided services to the client in excess of the $2000 retainer which she had been paid.

The respondentís failure to respond to repeated requests from her client and successor counsel for an accounting regarding the respondentís use of the clientís retainer violated Rules 1.4(a) and 1.15(b) of the Massachusetts Rules of Professional Conduct.

In the second matter, the respondent was retained in October 1998 to represent two clients regarding their grandparent visitation petition. In September of 1999, the clientsí son, the grandchildís father, was convicted of assault and battery on the grandchild. In October of 1999, the clients wrote to the respondent asking her to return their file, together with an accounting of the respondentís fee and the remainder of any unearned retainer. The respondent did not comply with this request until March of 2000, after the clients filed a grievance with Bar Counsel.

The respondentís failure to promptly return her clientsí file, or to provide them with an accounting regarding the retainer they paid her, violated Rules 1.16(e) and 1.15(b) of the Massachusetts Rules of Professional Conduct.

In the third matter, the respondent was retained in June of 1999 to represent an incarcerated client in his criminal matters. The respondent accepted the case and an initial partial fee from her clientís family without first meeting with her client or discussing the matter with him. The respondent did not meet with her client until September of 1999, over two months after she had been retained. The respondent did not correspond with her client or his family in writing at any time during the representation, even in response to letters from her clientís family inquiring as to the status of the matters. On several occasions, the respondent obtained continuances without prior notice to her client, as a result of her illness or the illness of a close member of her family. The respondent did communicate with her clientís family by telephone, and she met with the client twice at the house of corrections.

In April of 2000, the respondent represented the client at a two-day District Court trial, obtaining a not guilty verdict on domestic assault and battery charges, and a guilty finding on disturbing the peace charges.

After the respondent sought a continuance of a the trial in May of 2000 on a second criminal matter, the clientís mother notified the respondent that she was discharged and requested a copy of her sonís file. The respondent did not return the file until November of 2000, after Bar Counsel became involved. Successor counsel reported that her client was not prejudiced by the respondentís failure to timely return the clientís file.

The respondentís failure to keep her client reasonably informed about the status of the matters and to promptly comply with reasonable requests for information violated Rule 1.4(a) of the Massachusetts Rules of Professional Conduct. The respondentís failure to promptly return the clientís file violated Rule 1.16(e) of the Massachusetts Rules of Professional Conduct.

In addition, the respondent initially failed to cooperate with Bar Counselís investigation of two of the matters, resulting in the issuance of two subpoenas. The respondentís conduct in this regard violated Rule 8.4(g) of the Massachusetts Rules of Professional Conduct.

In aggravation, the respondent had received a prior warning for her failure to timely return a clientís file upon request. In mitigation, during the relevant time period, the respondent was incapacitated from a serious injury which necessitated surgery, suffering from other illnesses, or dealing with a family crisis involving the serious illness of her son. As a result of these problems, the respondent was unable to return to full-time practice until November of 2000.

In further mitigation, the respondentís clients were not harmed by her failure to adequately communicate with them, or to timely respond to their requests for accountings or for their files.

The respondent received an admonition for her conduct, on the condition that she attend a CLE course designated by Bar Counsel on the subject of legal ethics and law office management.


ADMONITION NO. 01-59

CLASSIFICATIONS:
Handling Legal Matter Without Adequate Preparation [DR 6-101(A)(2)]
Neglect of an Estate [DR 6-101(A)(3)]
Failure to Represent a Client Zealously [DR 7-101(A)(1)(2)]
Prejudice/Damaging Client During Representation [DR 7-101 (A)(3)]
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate with Client [Mass. R. Prof. C. 1.4(a)]

SUMMARY:
The respondent was retained in August 1994 to represent the administratrix of a July 1994 estate. The decedent had committed suicide after an extensive gambling spree left her with large tax debts.

Although the respondent performed the initial work on the estate, including filing the petition for probate and estate tax returns, he delayed three years before filing the decedentís final income tax returns and the inventory for the estate. As a result of his delay, the estate incurred significant interest and penalties. The respondent attributed these delays to the departure of several staff members in his office.

The decedent had major taxable gambling winnings during 1994 on which no taxes had been withheld. In determining the income tax liability, the respondent and his accountant failed to take into account the offset for gambling losses permitted by the Internal Revenue Code, Subtitle A, Ch. 1B, Part VI, ß165(d). In September 1999 the clientís successor counsel discovered the omission from the federal income tax return. As a result, in April 2000 the IRS reviewed the tax liability, and reduced the amount claimed for federal taxes from approximately $46,000 to $4,298.83. The Department of Revenue, which does not permit the offset of gambling losses against winnings, assessed the estate $2,449.34 in penalties and $2,447.20 in interest.

Because they did not offset the losses, the respondent and his accountant had incorrectly determined that the estate liabilities were greater than estate assets, and filed a representation of insolvency with the probate court. At the return date, the IRS was the only entity to file a proof of claim. In any case, the estate was not obligated to pay debts for which creditors had not filed claims pursuant to the one year statute of limitations, and that year expired in August 1995. Once successor counsel was retained and the tax liability was recalculated, the estate was solvent and able to pay the taxes.

The respondent acknowledged that he was not responsive to many inquiries from the client. The respondentís failure to communicate on a regular basis with the client about the estate, his prolonged delays in completing probate of the estate, his failure timely to file federal and state income tax returns, thereby incurring substantial interest and penalties, and his incorrect determination that the estate was insolvent violated Canon Six, DR 6-101(A)(2) and (3), Canon Seven, DR 7-101(A)(1)(2) and (3), and Mass. R. Prof. C. 1.1, 1.3, and 1.4(a).

The respondent received an admonition for his neglect and inadequate preparation of this estate.


ADMONITION NO. 01-60

CLASSIFICATIONS:
Immunity [SJC Rule 4:01 ß9]
Refusal of Complainant to Proceed Compromise or Restitution [SJC Rule 4:01 ß10]
Excessive Fee [Mass. R. Prof. C. 1.5(a)]
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]
Conduct adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:
For her conduct in three unrelated matters, the respondent received an admonition conditioned upon attendance at a CLE program designated by Bar Counsel.

With respect to the first file, the respondent represented a client in a civil matter. The respondentís fee agreement contained inappropriate terms. One clause purported to prevent the legal bill from being discharged in bankruptcy. Others allowed the respondent to withdraw at will. The respondent gave herself a lien on the clientís files. The respondentís use of these impermissible clauses in her fee agreement was in violation of Mass. R. Prof. C. 1.5(a).

After the client filed a complaint with Bar Counsel, the respondent asserted entitlement to $850.00 in unpaid legal fees. She also believed that the client was defaming her before Bar Counsel and with the public. On May 28, 2001 the respondent sent the clientís then counsel a letter enclosing a draft of a civil complaint, but offered not to file it if the client retracted her complaint to Bar Counsel.

The second matter also involved a request that a complaint to Bar Counsel be withdrawn. In September 1999 an opposing attorney filed a complaint against the respondent while litigation was pending. On April 30, 2000, Bar Counsel closed the file subject to being reopened if the court found or ruled that there was any misconduct by either attorney. To date, there has been no such finding or ruling.

In June 2001, Bar Counsel received correspondence from the opposing counselís client, enclosing a copy of a letter dated May 28, 2001 that the respondent sent to opposing counsel. The letter set forth a detailed settlement offer regarding the underlying dispute. One of the terms of the settlement was; ďThat [opposing counsel] draft some mutually acceptable statement to the Board of Bar Overseers retracting his complaint against me, and that he request that the file be expunged and destroyed in the interests of fairness.Ē

As to both matters, the respondentís conduct in attempting to condition settlement of a civil matter upon the withdrawal of the complaint to Bar Counsel was in violation of S.J.C. Rule 4:01, ß10 and Mass. R. Prof. C. 8.4(d) and (h). In addition and as to the first matter, the respondent was unaware that S.J.C. Rule 4:01 ß9 provides absolute immunity for complaints to Bar Counsel. The portion of the respondentís draft civil complaint that alleged damages as a result of the filing of the complaint to Bar Counsel was accordingly unwarranted. After these problems were brought to her attention by Bar Counsel, the respondent decided not to file the civil complaint in the first matter or to pursue her request for a retraction of the complaint in either matter.

In the third matter, the respondent again used a fee agreement containing improper terms. In this instance, the agreement provided for a usurious interest charge of 5% per month compounded monthly on unpaid bills. The respondentís conduct in including an illegal term in the fee agreement is in violation of Mass. R. Prof. C. 1.5(a). However, the respondent did not actually attempt to charge this interest.

The respondent was admitted in 1982 and has no prior discipline. She practices law on a limited basis and her conduct was a result of a lack of knowledge of the applicable ethical proscriptions. Her judgment was also clouded by a perception that the accusations against her were unfair. In addition, during the relevant time period the respondent was experiencing serious family problems.


ADMONITION NO. 01-61

CLASSIFICATIONS:
Failure to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Cooperate in Bar Discipline [Mass. R. Prof. C. 8.4(g)]
Investigations S.J.C. Rule 4:01, ß 3

SUMMARY:
The respondent left private practice in early 1999 for employment in the public sector. The respondent did not give adequate notice to all clients. One of the clients did not receive a refund of the fee and return of his file until after he complained to the Office of Bar Counsel. In addition, the respondent did not respond to Bar Counselís inquiries until he appeared under subpoena.

The respondent received an admonition for neglect of the clientís case in violation of Mass. R. Prof. C. 1.3, failure to communicate adequately with the client in violation of Mass. R. Prof. C. 1.4(a), and failure to cooperate with Bar Counselís investigation in violation of Mass. R. Prof. C. 8.4(g), and Supreme Judicial Court Rule 3:07, sec. 3


ADMONITION NO. 01-62

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Inadequate record keeping [Mass. R. Prof. C. 1.15(a)
IOLTA violation [Mass. R. Prof. C. 1.15(e)]
Conduct prejudicial to the administration of Justice [Mass. R. Prof. C. 8.4(d)]
"Good Funds Statute" [G.L. c.183 ß63B]
Reporting Requirement [Supreme Judicial Court Rule 4:01, sec. 3 and Rule 4:02, sec. 2]

SUMMARY:
These matters came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt of several notices of dishonored checks drawn on the respondents' various IOLTA accounts. The respondents do conveyancing for several banks at which they maintain separate trust accounts. The respondents have several offices and also maintain separate accounts for each office. Confusion among the accounts, as well as inadequate record keeping, led to the reports to Bar Counsel.

In one instance, a check drawn on one of the IOLTA accounts for a closing was returned for insufficient funds because the loans proceeds had been deposited by the lender to a different IOLTA account at the same bank. The respondents closed on the loan without confirming that the proceeds were on deposit in the correct account. They subsequently made the appropriate internal transfer.

In another instance, the lender bank deposited the funds in the respondentsí conveyancing account at the lender bank. However, closing checks were mistakenly drawn on the respondentsí IOLTA account at another bank. The respondents later made a corresponding transfer of funds.

A third instance involved dishonored checks related to a loan from a mortgage company. Although the mortgage company had sent the closing attorney a worksheet indicating that the funds had been wired into the respondentsí real estate escrow account at a local bank, the mortgage company had instead wired the funds into the account of another attorney unrelated to the respondentsí firm. The closing attorney relied on the worksheet, and did not confirm with the bank that the mortgage company's wire had been received prior to proceeding with the closing.

In the fourth instance, checks were issued in connection with a closing four days before the corresponding deposit was made. The respondents' failure to insure that verified funds were on deposit before going to record was in violation of G.L. c.183 ß63B,( the "good funds statute").

The respondents had also not complied with the requirements of Supreme Judicial Court Rule 4:02, sec. 2, in that they had not supplied to the Board of Bar Overseers a complete list of all IOLTA accounts in which they deposited client funds.

The respondentsí conduct in these matters constituted inadequate recordkeeping, in violation of Mass. R. Prof. C. 1.15(a), failure to comply with the IOLTA requirements, in violation of Mass. R. Prof. C. 1.15(e), failure adequately to supervise the attorneys in their offices, in violation of Mass. R. Prof. C. 5.1(a) and (b), and conduct prejudicial to the administration of justice, in violation of Mass. R. Prof. C. 8.4(d) and Supreme Judicial Court Rule 4:01, sec. 3 and Supreme Judicial Court Rule 4:02, sec. 2.

In connection with disposition of this matter, the respondents made necessary changes in their record keeping practices. They accordingly received an admonition.


ADMONITION NO. 01-63

CLASSIFICATIONS:
Notice of Dishonored Check [Mass. R. Prof. C. 1.15(f)]
Commingling Clientsí Funds with Lawyerís Funds [Mass. R. Prof. C. 1.15(a)]
Failure to Maintain Proper Records of Clientís Property [Mass. R. Prof. C. 1.15(a)]

SUMMARY:

This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of a dishonored check from the bank at which the respondent maintains his IOLTA account. The account in question was in fact a commingled account into which the respondent deposited both settlements for clients and earned fees or other personal funds, and from which, in addition to proper disbursements to or for the benefit of clients, he made direct payment of personal and business expenses. He did not always keep adequate track of withdrawals of his own funds, resulting in the overpayment that led to the dishonored check. The check that was returned unpaid was to pay personal expenses and there were no client funds in the account at the time.

The respondentís conduct in this matter constituted commingling and inadequate recordkeeping, in violation of Mass. R. Prof. C. 1.15(a).

The respondent is a solo practitioner who has been a member of the Massachusetts bar since 1968 with no prior discipline. He now understands his errors and has taken corrective measures. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-64

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

SUMMARY:
This matter came to Bar Counselís attention as the result of receipt of a notice from a bank of a dishonored check drawn on the respondentís IOLTA account. The check in question was in the amount of $3,892.22, and payment would have resulted in an overdraft of $1,497.23.

The respondent maintained a second account at another bank to which he deposited client funds. The funds which were to support the disbursement were inadvertently deposited to the second account. Shortly after the check was returned from the IOLTA account, sufficient funds were transferred from the second account to the IOLTA account to allow the check to clear when resubmitted.

A review of the records of the second account revealed that it had an overdrawn balance of $1,692.06 during month prior to the return of the check from the IOLTA account. Further review revealed that the respondent had made an overpayment of $9,629.90 to third parties in connection with another client matter. As a result of inadequate recordkeeping, the overpayment was not immediately detected. The respondentís conduct in this regard violated Mass. R. Prof. C. 1.15(a). When the problem was identified, sufficient funds were deposited to make up the shortfall.

The checks for the second account improperly identified it as an IOLTA account. The account was in fact simply an interest-bearing N.O.W. account, although it was being used exclusively to hold clientsí funds. The respondentís conduct in these respects violated Mass. R. Prof. C. 1.15(a), (d). When this problem was brought to the respondentís attention, he closed the account and established a new IOLTA account.

The respondent was admitted to practice in 1958. After practicing in a firm for years, the respondent had just entered into a solo practice, and had not established proper bookkeeping procedures. He has since taken appropriate corrective measures. He therefore received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-65

CLASSIFICATIONS:
Neglect of a Legal Matter [DR 6-101(A)(3)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]
Failure to Cooperate in Bar Discipline Investigations [Supreme Judicial Court Rule 4:01, ß 3]

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

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

Over the next two years, the respondent neglected the settlement of the estate. In 1997, the primary beneficiary filed a grievance with Bar Counsel alleging that the respondent and his counsel had failed to timely complete the settlement of the estate. In July of 1997, the respondent and his counsel reported that a final account would be filed within thirty days. Thereafter, a lost certificate for 100 shares of stock valued at approximately $2,250.00 was discovered, which had to be liquidated before the estate could be closed. The liquidation of these shares was delayed through 1998.

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

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

The respondent also failed to cooperate with Bar Counselís investigation of a second unrelated grievance, resulting in the issuance of a subpoena requiring the respondent to appear with his files and records for questioning about the matter. The respondentís failure to cooperate with Bar Counselís investigation violated S.J.C. Rule 4:01 ß 3, and Rule 8.4(g) of the Massachusetts Rules of Professional Conduct.

In aggravation, the respondent who was admitted to practice in 1971 received an informal admonition in 1986 for his neglect of a legal matter, and a private reprimand in 1988 for his neglect of an estate matter and a civil litigation matter.

In mitigation, during the relevant time period the respondent was experiencing work-related stress and the beginnings of an alcohol dependency problem, for which he sought and received assistance from Lawyers Concerned for Lawyers. He also attended a CLE course designated by Bar Counsel.

Based on the foregoing, the respondent received an admonition for his conduct.


ADMONITION NO. 01-66

CLASSIFICATIONS:
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Improper Financial Assistance to Client [Mass. R. Prof. C. 1.8(e)]

SUMMARY:
This matter came to Bar Counselís attention as the result of Bar Counselís receipt pursuant to Mass. R. Prof. C. 1.15(f) of a notice of dishonored check from a bank in which the respondent maintained an IOLTA account. The check in question was for $1844 and payment would have caused an overdraft of $1758.

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 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. In addition, the respondent did not keep sufficient track of the fees withdrawn in this manner. The dishonored check occurred when the respondent negligently overpaid himself on three cases on which he deposited settlements in late January 1999. The respondent wrote himself several checks in round amounts for partial fees on the settlements. In doing so, he mistakenly withdrew $1700 more than he was owed on the three matters combined, thereby causing the unrelated check for $1844 to be returned unpaid. The dishonored check was resubmitted and paid from fees retained in another case.

In addition to his failure to promptly withdraw earned fees from the trust account, the respondent also did not maintain either an acceptable check register or individual client ledgers. 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). Finally, the respondent also occasionally advanced small sums to clients from fees retained in the IOLTA account, in violation of Mass. R. Prof. C. 1.8(e).

The respondent has a prior public censure from 1989 for unrelated misconduct that occurred in or before 1986. He received an admonition on the current matter, conditioned upon attendance at a CLE course designated by Bar Counsel and upon satisfactory completion of a one-year financial probation agreement.


ADMONITION NO. 01-67

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 Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt from a bank in April 1999 of a notice of dishonored check drawn on the respondentís IOLTA account. The account was already in overdraft when the $675 check in question was presented and payment would have created an overdraft of almost $1400.

At the time of the events in question, the respondent had a real estate practice. In the months before the check was dishonored, he was in the process of closing his solo practice and merging his practice with that of another lawyer. The respondent was therefore in the process of winding down his use of this IOLTA account. He was unaware that payment of a large check to an estate had created a $700 overdraft and was further unaware that the check for $675 from a real estate closing, written several months earlier, was still outstanding. Using personal funds, he immediately replaced the check for $675 with a money order and deposited funds to the IOLTA account to correct the overdraft. The account was later closed.

Prior to 1998, the respondent had employed an outside bookkeeper. Commencing in 1999, the respondent relied on his own staff for record keeping but did not insure that the records were maintained adequately or that the account was properly reconciled. As a result, he was not able to produce a usable check register or check stubs for the final months that the account was open. Errors went undetected and were covered by the float when the account was active. It was only when the respondent effectively ceased using this account that the problems surfaced and the overdrafts occurred.

The respondentís conduct in this regard constituted inadequate record keeping, in violation of Mass. R. Prof. C. 1.15(a). The respondent has since received training in trust accounting. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-68

CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a) and b]
Failure to Notify of Receipt or Account to Client or Third Person of Property [Mass. R. Prof. C. 1.15(b)]

SUMMARY:
The respondent represented a husband and wife in a personal injury action. In or about January 2000, the clients discharged the respondent. In February 2000 the husband was incarcerated. In or about April 2000 the wife asked the respondent to resume representation of both parties.

The respondent obtained offers of settlement in or about June 2000 of $7,000 for the wife, $5,500 for the husband. The wife signed her own release in the respondentís presence and took the husbandís release with her. The next day the wife returned with the release purportedly signed by the husband and witnessed by the wifeís daughter. In fact, and unknown to the respondent, the husbandís name was forged by the wife or daughter. Although he had not obtained agreement to the terms of settlement directly from the husband, the respondent submitted the releases to the insurer.

After the checks arrived, the wife presented a note to the respondent purportedly signed by the husband, asking the respondent to make the husbandís settlement check payable to the wife. The note apparently was written and signed by the wifeís daughter. The respondent made the check payable to ď[husband] or [wife]Ē, in the alternative, and gave it to the wife. The wife cashed the check and did not turn over the proceeds to the husband.

The respondent should at the least have communicated directly with the husband to report the settlement offer and ensure that he agreed to the terms of settlement and wanted his wife to receive the proceeds. In addition, if he agreed to turn over the husbandís check to the wife without confirming these instructions with the husband, the respondent should have made the check payable to the husband solely.

By failing to communicate directly with the client regarding the terms of settlement of his claim and disbursement of the proceeds, the respondent violated Mass. R. Prof. C. 1.4(a) and (b). By failing to ensure that the client had actual knowledge of the terms of settlement, and that he had signed the settlement release, the respondentís preparation was inadequate, and violated Mass. R. Prof. C. 1.1. Given these circumstances, by making the settlement check payable to the client or his wife, rather than to the client alone, the respondent violated Mass. R. Prof. C. 1.15(b).

The respondent has been a member of the Bar since 1968, with no prior discipline. He received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-69

CLASSIFICATIONS:
Trust Account Commingling and Record Keeping [Mass. R. Prof. C. 1.15(a)]
Failure to Cooperate in Bar Discipline Investigation [S.J.C. Rule 4:01 ß3]
Failure to Cooperate in Bar Discipline Investigation [Mass. R. Prof. C. 8.4(g)]

SUMMARY:
This matter came to Bar Counselís attention as the result of the receipt pursuant to Mass. R. Prof. C. 1.15(f) of two notices of dishonored checks from the bank in which the respondentís IOLTA account is maintained. On December 8, 1998, Bar Counsel received a notice of a dishonored check in the amount of $83.75 drawn on the respondentís IOLTA account. On July 29, 1999, Bar Counsel received a second notice of a dishonored check in the amount of $2700 also drawn on the IOLTA account.

The respondentís record keeping in his IOLTA account was generally inadequate. Personal funds were commingled with client funds. Individual client ledgers were not maintained; an accurate check register was not maintained; earned fees were deposited into the account; fees were not withdrawn from the account as earned and, when paid, were withdrawn without reference to bills to clients or even to particular client matters; and the account was not reconciled. These problems ultimately led to the deficiencies in the account that caused the two checks to be dishonored.

The first dishonored check was payable to the Massachusetts Registry of Motor Vehicles as a charge relating to the respondentís own driverís license. The balance in the account was only $45 when this check was presented and payment would have caused an overdraft in the amount of $38.75. There were no client funds in the account on this date.

The second dishonored check represented a settlement payable to client who is an elderly relative of the respondent by marriage. Because of a $30 bank charge processed the same day, payment would have caused an overdraft in the amount of $27. The client did not immediately notify the respondent that the check had been returned unpaid. The respondent did not open notices received from the bank and was therefore unaware both of the $30 bank charge and that the check to the client was returned. Immediately upon being notified by the clientís son-in-law that the check had not been paid, the respondent deposited personal funds to the IOLTA account to enable the check to clear upon redeposit .

The respondentís commingling of client funds with personal or business funds, and his inadequate and improper record keeping, is conduct in violation of Mass. R. Prof. C. 1.15(a).

In addition, the respondent failed to cooperate with Bar Counselís investigation, necessitating the issuance of a subpoena to compel his production of records. His conduct in this respect was in violation of Supreme Judicial Court Rule 4:01, ß3 and Mass. R. Prof. C. 8.4(g).

In mitigation, the respondent was admitted to practice in 1992 at the age of 41, after an earlier career in an unrelated field. He maintains only a small part-time practice and has never practiced law full-time. He is in ill health with declining vision as a result of complications from diabetes. Under these circumstances, the respondent received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel and upon receiving training in trust accounting.


ADMONITION NO. 01-70

CLASSIFICATIONS:
Failing to Act Diligently [Rule 1.3]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Rule 1.15(b)]
IOLTA Violation [Rule 1.15(e)]

SUMMARY:
The respondent received an admonition for her neglect of an estate matter, as described below.

The respondent was appointed executor of the estate of a decedent on April 26, 1995. At the time of his death, the decedent had insufficient liquid assets to pay his substantial personal debts, or his funeral expenses or costs of administration of the estate. The decedent owned a residential condominium. Under the will, this property was to be sold and the proceeds divided between a friend of the decedent and his mother. The residue of the estate was to be divided equally between the friend and the decedentís mother. The estate was not taxable for estate tax purposes.

On March 9, 1996, the condominium was sold for $99,007.00. Although the one-year statute of limitations for creditors to assert claims against the estate had already expired, the respondent incorrectly assumed that the estate was still liable for the decedentís debts which had not yet been paid. She therefore deposited the proceeds to a client funds account pending settlement of the estate. The account to which the respondent deposited the funds was noninterest-bearing, even though the funds remained in the account for more than a short period of time.

The decedentís friend then requested that he receive his share of the proceeds from the sale of the condominium. He agreed to repay any portion of the distribution which might be needed to pay any outstanding debts of the decedent or his estate. With this understanding, on or about March 18, 1996 the respondent made a distribution of $48,005.57 to the friend. The respondent did not make a similar distribution at that time to the decedentís mother. Instead, the respondent retained the motherís portion of the proceeds in the estate account pending final settlement of the estate.

Between 1996 and 1999, the respondent neglected the settlement of the estate. During this period, the decedentís mother and brother made repeated inquiries to the respondent regarding the funds which were to be paid to the mother from the sale of the condominium and the settlement of the estate. The respondent failed to make any further distributions to the mother until on or about May 19, 2000, after a grievance had been filed with Bar Counsel. At that time, she disbursed $47,063.48 to the mother from the estate account, and an additional $942.09 from her own personal funds, for a total distribution of $48,005.57.

On or about May 20, 2000, the respondent filed her first and final account in this matter. The decedentís mother filed objections to the respondentís account. By agreement of the parties, the mother withdrew her objections to the respondentís account after the respondent paid her a settlement. This settlement represented interest which the proceeds from the sale of the condominium would have earned had they been held in an interest-bearing account from March of 1996 until May of 2000. In addition, the settlement compensated the mother for condominium expenses paid by the estate, instead of by the friend occupying the unit, and for various other expenses attributable to the delay in settling the estate.

By failing to complete the settlement of the estate in a timely manner, the respondent violated Rule 1.3 of the Massachusetts Rules of Professional Conduct. By failing to make timely disbursements of estate funds, the respondent violated Rule 1.15(b) of the Massachusetts Rules of Professional Conduct. By failing to hold the estate assets in an interest-bearing account with the interest payable to the estate when the assets were being held for more than a short period of time, the respondent violated Rule 1.15(e) of the Massachusetts Rules of Professional Conduct.

In mitigation, the beneficiaries have been compensated for any financial losses resulting from her misconduct. In further mitigation, during the relevant period the respondent was experiencing substantial personal problems for which she has sought and obtained professional assistance.

The respondent, who was admitted to practice in 1978 had no prior disciplinary history, received an admonition for her conduct.


ADMONITION NO. 01-71

CLASSIFICATIONS:
Handling Legal Matter without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent represented a husband in a divorce that went to trial in 1998. The husbandís uncle had died in November 1997, leaving a portion of his estate to the husband. The husbandís mother died in December 1997, leaving her entire estate to her son. The respondent also represented the husband as executor of his motherís estate.

At the time of trial, the respondent filed two amended financial statements on behalf of his client. Because the husband was self-employed, the respondent was required to file a Schedule A form with the statements. Schedule A called for detailed information regarding wages, other income, assets, expenses, and liabilities. The respondent was not aware that the Rules of the Probate and Family Court had been amended in December 1997 requiring the filing of a Schedule A in these circumstances.

In addition, the first financial statement filed with the court in March 1998 did not disclose the husbandís interest in his uncleís and motherís estate. When this deficiency was pointed out, a second financial statement was filed, but it failed to quantify the value of the husbandís interest in the two estates. There was no intent to deceive, however, and all parties were aware that both the uncle and mother had died and had left assets to the husband.

Both financial statements were signed by the respondent, who certified that he had no knowledge that any of the information was false. The respondent had not reviewed either financial statement with care, nor had he made any inquiry into the representations. Had he done so, he would have seen that that there were inconsistencies and omissions in the financial statement.

The respondentís conduct in failing to carefully review and adequately investigate a domestic relations financial statement, in failing to file the required Schedule A for self-employed persons with the financial statement, and his certification of a financial statement without reasonable inquiry as to obvious inconsistencies and omissions, constituted inadequate preparation and lack of reasonable diligence in violation of Mass. R. Prof. C. 1.1 and 1.3.

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


ADMONITION NO. 01-72

CLASSIFICATIONS:
Failure to Safeguard Trust or Escrow Funds [DR 9-102(A)(2)]
Failure to Maintain Proper Records of Clientís Property [DR 9-102(B)(3)]
Improperly Disbursing Escrow Funds [DR 9-102(B)(4)]
IOLTA Violation [DR 9-102(C)]
Trust Account Commingling and Record Keeping [Mass. R. Prof. C. 1.15(a)]
Failure to Notify of Receipt or Account to Client or Third Person of Property [Mass. R. Prof. C. 1.15(b)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)(2)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]

SUMMARY:
The respondents are the partners in a law firm. This matter came to Bar Counselís attention in August 2000 as the result of Bar Counselís receipt of anonymous correspondence enclosing copies of 1998 and 1999 internal firm memoranda. The critical issue raised by the internal memoranda was that the firm had (what was eventually determined to be) an extra $62,717 in its IOLTA accounts, almost entirely from real estate closings, for which it could not account. Related to this problem was that some of the extra funds might be the result of title policies not ordered or mortgage discharges not received or recorded. The problem was first discovered in 1997 and arose from the failure of a former paralegal to complete tasks which she had been assigned and for which she had been trained.

After Bar Counselís initial inquiry in August 2000, the respondents continued to work to complete the accounting and finished the process by April 2001. Over half the funds had already been distributed by the date of Bar Counselís initial inquiry, and the remainder was disbursed in accordance with the accounting by May 2001.

Of the $62,717 in the accounts, $34,649 represented fees and expenses due the firm. An additional $3915 was due to clients or parties to the closings, mostly in sums under $75, albeit with a few larger amounts. A further $20,653 was owed third parties, including title insurers for title policies and registries of deeds for unrecorded discharges. A final $3500 involved old unresolved disputes and properly remained in escrow pending filing of an interpleader in one instance or transfer to an individual interest-bearing account in another.

Regardless of whether or not the original problems could have been prevented with better supervision of support staff, the firm failed for over three years after becoming aware of the situation to complete the necessary review to identify and distribute the funds for which they knew they could not account. Their conduct in this respect constitutes inadequate record keeping in violation of Canon Nine, DR 9-102(B)(3) and Mass. R. Prof. C. 1.15(a). The firmís further failure to failure to promptly distribute funds to which clients or third parties were entitled and to identify and promptly remove earned fees was in violation of Canon Nine, DR 9-102(A)(2) and (B)(4) and Mass. R. Prof. C. 1.15(b) and (d)(2). Finally, the failure to deposit funds held long term in escrow to individual interest-bearing accounts was in violation of Canon Nine, DR 9-102(C) and Mass. R. Prof. C. 1.15(e).

In mitigation, no client or third party complained. In addition, the respondentsí record keeping for transactions occurring after they discovered these problems in 1997 was much improved. The respondents accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-73

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

SUMMARY:
The respondent received an admonition for failure to cooperate with Bar Counselís investigation. The admonition was conditioned upon attendance at a CLE course designated by Bar Counsel.

The respondent agreed to represent a prisoner in pursuing post conviction relief. The client filed a complaint with Bar Counsel in November 1999, alleging that the respondent had not taken any action. The respondent eventually filed a motion for a new trial in June 2001, which was denied. There were exigent circumstances justifying a substantial portion of the delay and the client was ultimately satisfied with the respondentís efforts.

However, the respondent also failed to timely cooperate in Bar Counselís investigation of the clientís original complaint, requiring Bar Counsel to write frequent reminder letters and finally to compel the respondentís attendance by subpoena. The respondentís conduct in this respect was in violation of Supreme Judicial Court Rule 4:01, ß3 and Mass. R. Prof. C. 8.4(g). Once subpoenaed, the respondent retained counsel and cooperated fully with Bar Counsel.

In aggravation, the respondent received a prior admonition in March 1998 for failure to timely return a clientís file and provide an accounting of a retainer and, again, for failure to cooperate with Bar Counsel.


ADMONITION NO. 01-74

CLASSIFICATIONS:
Handling Legal Matter Without Adequate Preparation [DR 6-101(A)(2)]
Failure To Represent A Client Zealously [DR 7-101(A)(1)]
Prejudicing/Damaging Client During Representation [DR 7-101(A)(3)]

SUMMARY:
On October 14, 1997, the client retained the respondent to represent her in her on-going divorce proceedings. Although there were no children born of the marriage, the client was approximately eight months pregnant when she retained the respondent. The respondentís intake notes indicate that the husband was denying paternity.

In July of 1997, prior to retaining the respondent, the client obtained a 209A restraining order against her husband, after alleging that the husband had physically and mentally abused her. At or about the time the respondent was representing her, the client sought refuge with a battered womenís shelter due to her fear of her husband. The client was also in counseling due to the physical and emotional abuse she had suffered from the husband. The respondent was aware of these matters, and believed that the clientís fear of her husband was justified.

On October 30, 1997, approximately two weeks after the respondent began representing the client, the parties and their counsel appeared at the Probate Court for a hearing on motions for temporary orders. While there, the respondent met with the husbandís counsel and the family service officer to discuss a possible resolution of the divorce matter. Due to her fear of her husband, the client did not want her husband to have contact with her or the child. The husband, who was having trouble making support payments for his two children from his first marriage and who had limited contact with them, was willing to not have contact with the client or the child once it was born in exchange for not having any financial responsibility.

Based on his conversations with opposing counsel and the family service officer, the respondent prepared a draft separation agreement which made no provision for child support because no child of the marriage had yet been born. The respondent reviewed the terms of the agreement with the client, and advised her that if she signed it she could get divorced that day. Believing that child support could be dealt with after the child was born, but without adequately researching this issue, the respondent erroneously told the client that the agreement would not affect her right to seek child support after the child was born. The parties signed the agreement, which was presented to the court that day, and became the basis for a judgment of divorce entered by the court.

After the child was born, the client decided to seek child support payments from the husband. The husband denied paternity of the child. After she was told by the Department of Revenue that child support would not be available under the terms of the separation agreement signed by the parties, the client discharged the respondent and retained new counsel. On or about August 27, 1998, the clientís new counsel filed a motion for relief from judgment relating to the divorce. The motion sought to vacate the judgment because the judgment had the prospective effect of denying the child adequate support and was contrary to public policy.

On November 19, 1998, the Probate Court entered an order requiring both parties and the child to submit to genetic marker testing. In or about December of 1998, the blood tests conclusively established that the husband was the father of the clientís child. On April 20, 1999, the parties entered into a stipulation whereby the husband would make prospective child support payments for the child, and the client waived the right to seek back child support payments. On April 20, 1999, the Probate Court entered an order allowing the clientís motion for relief from judgment, and incorporating the partiesí stipulation of that date into an amended judgment of divorce, nunc pro tunc to December 1, 1997. In all other respects, the Court reaffirmed the separation agreement signed by the parties on October 30, 1997.

With the assistance of counsel, the client then pursued a malpractice action against the respondent. The malpractice case settled on November 30, 2000.

By advising his client to execute a separation agreement which made no provision for her unborn child without adequately researching whether this would affect the rights of the client or child after the child was born, the respondent handled a legal matter without preparation adequate in the circumstances in violation of Canon Six, DR 6-101(A)(2).

By failing to fully advise his client as to the consequences of entering into a separation agreement which failed to make adequate provision for child support for her as of yet unborn child, and which had the prospective effect of denying the unborn child inheritance rights from her father, the respondent failed to represent his client zealously in violation of Canon Seven, DR 7-101(A)(1) and (3).

The respondent, who was admitted to practice in 1972 and had no disciplinary history, received an admonition.


ADMONITION NO. 01-75

CLASSIFICATIONS:
Improper Financial Assistance to Client [Mass. R. Prof. C. 1.8(e)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Dishonored Check on Trust Account [Mass. R. Prof. C. 1.15(f)]
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 Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt of two notices of dishonored checks from the bank in which the respondent maintained his IOLTA account.

Bar Counselís review of the respondentís IOLTA account showed that the respondent was not properly reconciling his account, in violation of Mass. R. Prof. C. 1.15(b). He also was not taking fees promptly when earned and instead was removing fees on an ďas neededĒ basis and without accurately identifying the clients from whom he had earned the fees, in violation of 1.15(d)(2).

Bar Counselís review further indicated that the respondent was advancing funds to clients for personal necessities, in violation of 1.8(e).

In connection with disposition, the respondent began to use an accounting program, and obtained training in trust accounting to conform his record keeping to the requirements of the Rules of Professional Conduct. The respondent accordingly received an admonition for the above violations.


ADMONITION NO. 01-76

CLASSIFICATIONS:
Notice of Dishonored Check [DR9-103]
Commingling Clientsí Funds with Lawyerís Funds [DR9-102(A)]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Responsibilities of Partner or Supervisory Lawyer [Mass. R. Prof. C. 5.1(a)]

SUMMARY:
This matter came to Bar Counselís attention pursuant to Canon Nine, DR 9-103 as a result of Bar Counselís receipt in October 1997 of two notices of dishonored checks totaling $3800 from the bank at which the respondentís law firm maintained its IOLTA account.

The account in question was managed entirely by the respondentís partner in a two-person firm. The partner was improperly paying an installment debt owed by the firm directly from the trust account from fees due the firm. The partner also did not keep adequate records of receipts or disbursements, did not maintain individual case ledgers, and did not reconcile the account either case-by-case or to the bank statements. As a result of these various problems, the partner inadvertently overpaid the firm, leading to the shortfall that caused the checks to be returned. The checks were immediately reissued and paid from personal funds.

At about the same time that the dishonored checks were reported to Bar Counsel in 1997, a client returned to the firm with a settlement check for $32,000 issued in 1994 that had never been negotiated. Because of the negligent record keeping, there were insufficient funds remaining in the trust account by 1997 to pay the client. The lawyers therefore repaid $32,000 in three installments over the next two years.

Before these incidents, the respondent was largely unaware of how his partner maintained the trust account records. This lack of involvement was in part because the respondentís own practice generally did not include receiving trust funds, such that the money in the trust account came from the partnerís cases. The respondent was aware, however, that the firm was improperly paying the installment debt directly from the trust account from fees due the firm.

The firmís account commingled business and trust funds in violation of Canon Nine, DR 9-102(A) and, after January 1, 1998, Mass. R. Prof. C. 1.15(a). In addition, the problems with the respondentís partnerís record keeping were not corrected even after the respondent was put on notice of the problems in late 1997 by fact of the dishonored checks and the client whose funds were negligently expended. As a partner in the law firm, the respondent was required to take steps to insure that his partnerís and the firmís record keeping practices were adequate. The respondentís failure to do so was in violation of Mass. R. Prof. C. 5.1(a) and Mass. R. Prof. C. 1.15(a).

In February 1999 when their lease expired, the respondent and his partner moved their practices to separate physical locations, although they each continued to use the firm name. By later in 1999, they terminated their relationship and discontinued the use of the firm name.

The respondent has been a member of the Bar since 1980, with no prior discipline. He now maintains a solo practice in which he is paid only earned fees and does not otherwise receive trust funds. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-77

CLASSIFICATIONS:
Handling Legal Matter when not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01(3)]

SUMMARY:
The respondent received an admonition for misconduct in three matters.

The first matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of the receipt of notice of dishonored checks from the bank in which the respondentís IOLTA account is maintained and of a complaint from one of the payees whose check was returned. The checks were dishonored because a deposit was returned because of an improper endorsement. In itself, this would not be a disciplinary issue but for the respondentís failure to cooperate with Bar Counsel and the underlying record keeping problems that were discovered, as described below.

In a second matter, the respondent delayed sixteen months in forwarding an earned fee to a mortgage broker. The respondent was unaware that the payment had not been made until the broker discovered the oversight during an internal audit.

The respondent is a conveyancing attorney who has a busy practice. Bar Counselís investigation of these two matters showed that his record keeping was inadequate to his practice. He did not maintain a running balance in his check register and did not maintain individual ledgers or statements showing funds received and disbursed for each closing. His conduct in this respect violated Mass. R. Prof. C. 1.15(b).

The respondent also did not respond to Bar Counselís inquiries regarding the dishonored checks and the brokerage fee until he appeared under subpoena. His failure to cooperate violated Mass. R. Prof. C. 8.4(g) and Supreme Judicial Court Rule 4:01, ß3.

In a third matter, the respondent failed to obtain a mortgage discharge at the time of a 1998 closing. As a result, $2,000 was required to be placed in escrow in connection with a 2001 sale of the property. The mortgage in question had in fact been paid in full. However, the bank charged ownership after 1998 and there was confusion regarding which institution should issue the discharge. The respondent ultimately obtained the discharge after the complaint was filed with Bar Counsel. His conduct in this regard violated Mass. R. Prof. C. 1.1 and 1.4(a).

The admonition was conditioned upon attendance at a CLE course designated by Bar Counsel and on compliance with the terms of a two year financial probation agreement.


ADMONITION NO. 01-78

CLASSIFICATIONS:
Conflict of Interest Between Lawyer and Client [DR 5-101(A)]
Failure to Turn Over Timely Trust or Escrow Funds [DR 9-102(B)(4)]

SUMMARY:
The respondent represented a client in her divorce and post-divorce matters through October of 1996. In September of 1996, the respondent referred the client to a mortgage broker because she wanted to refinance the mortgage on her home to pay some debts. At the time, the client still owed the respondent approximately $5,000 in legal fees for his representation of her in the divorce matter.

The lender approved the clientís loan application and retained the respondent to act as the settlement agent for the loan closing which took place on November 6, 1996. Prior to accepting this employment, the respondent did not fully disclose to the parties that his personal interests as a creditor of the borrower might interfere with his obligations as a settlement agent.

As settlement agent, the respondent had an obligation to promptly make the disbursements shown on the HUD-1 settlement statement. The respondent was not listed as a payee on the HUD-1 settlement statement. The client was listed as a payee, who was to receive $1,635.31 from the loan proceeds. However, after the closing on November 6, 1996, the respondent held back the $1,635.31 which was due to be paid to the client from the loan proceeds until mid-December 1996 in order to secure the payment of his outstanding fee for his prior representation of the client in her divorce matters. On December 18, 1996, after the respondent received payment of his outstanding fee from the client, the respondent disbursed to the client the residual funds which he had been withholding from the proceeds of the loan for which he was settlement agent.

By undertaking to act as settlement agent for a mortgage refinancing transaction without fully disclosing to the parties his personal interest in the transaction as a creditor of the borrower, the respondent violated Canon Five, DR 5-101(A). By failing to promptly disburse the closing funds in accordance with his obligations as settlement agent, the respondent violated Canon Nine, DR 9-102(B)(4).

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


ADMONITION NO. 01-79

CLASSIFICATIONS:
Failing to Seek Clientís Lawful Objectives or Abide by Clientís Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Withdrawal without Tribunalís Permission [Mass. R. Prof. C. 1.16(c)]

SUMMARY:
In 1998, the client retained the respondent to represent her in connection with a sexual harassment and race discrimination matter, which she had initiated in 1994 against her employer. At the time, the case was pending before the Massachusetts Commission Against Discrimination. The respondent removed the case to the United States District Court, and then he took no further action.

In February 2000, the employer moved to dismiss the case. The respondent did not oppose the motion. In June 2000, the court dismissed the case. The respondent did not notify the client of the dismissal.

The respondent indicated that the client had expressed interest in obtaining new counsel; therefore, he was unclear as to whether he was still representing her. In the absence of notice that successor counsel had been retained, however, he was required to file a motion to withdraw at the tribunal. The respondentís conduct was in violation of Mass. R. Prof. C 1.2(a), 1.3 and 1.16(c).

The respondent was admitted to practice in 1968 and has no prior discipline. He maintains malpractice insurance and has agreed to cooperate in vacating the dismissal.

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


ADMONITION NO. 01-80

CLASSIFICATIONS:
Lack of Diligence [Mass. R. Prof. C. 1.3]
Failure to Cooperate [Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, ß3]

SUMMARY:
In April 1997 the respondent filed a petition for administration in the Probate and Family Court of an individual who died intestate on October 25, 1995. The decedent was survived by her mother and her sister. The decedentís sister held a durable power of attorney from her disabled mother. The decedent died owning an interest as tenant in common with her mother in real estate and an interest as tenant in common with her mother in certain shares of stock. In April 2001, the decedentís sister complained to Bar Counsel that the estate was not being timely completed.

The respondent did not respond to several pieces of correspondence from Bar Counsel asking for a response to the sisterís complaint, requiring Bar Counsel to serve a subpoena on the respondent. After Bar Counsel served a subpoena, the respondent retained counsel and cooperated with Bar Counselís investigation. The respondentís failure to cooperate with an investigation of Bar Counsel was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, ß 3.

In 1997 and 1998, the respondent had attempted to cause the holding company of the shares of stock to re-issue those shares to the sister, as the decedent intended, pursuant to the power of attorney. The holding company did not accept the sisterís power of attorney. The respondent did not follow up with the holding company until after he appeared at the subpoena meeting with Bar Counsel. He then insisted on dealing with the companyís general counsel and successfully caused the shares to be re-issued.

The respondent had also failed to obtain a release of the estate tax lien on the real estate interest until after the subpoena meeting, although there were no exigent circumstances requiring the release. Finally, the respondent failed to transfer title to the real estate to the sister, consistent with the motherís undisputed wishes.

The respondentís failure to diligently pursue the administration of the estate was in violation of Mass. R. Prof. C. 1.3.

The respondent was admitted in 1991 and has no prior discipline. He received an admonition conditioned upon attendance at a CLE program recommended by Bar Counsel.


ADMONITION NO. 01-81

CLASSIFICATION:
Improper Communication with Represented Person [Mass. R. Prof. C. 4.2]

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

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

By communicating with an adverse party who he knew was represented by counsel about the subject of the representation, without the consent of counsel or authorization of law, the respondent violated Rule 4.2 of the Massachusetts Rules of Professional Conduct.

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


ADMONITION NO. 01-82

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]
Withdrawal Without Tribunal's Permission [Mass. R. Prof. C. 1.16(c)]
Withdrawal Without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
In or around November 1998, the respondent was retained to represent a client in a personal injury claim resulting from an incident that occurred when the client was being held in jail in lieu of bail. The client allegedly suffered an anxiety attack when he was not given his medication and he fell from his bunk and injured his back. The respondent expected to take his fee from any recovery received, but he failed to specifically advise the client of his intention. No contingent fee agreement was executed.

The respondent filed suit on behalf of the client on September 7, 1999, in Superior Court. He named the county sheriff and the Commonwealth (Executive Office of Public Safety ) as defendants. The complaint against the sheriff was dismissed on December 18, 1999 for failure to comply with standing order 1-88 regarding service of process. The respondent failed to take any action to properly serve the Sheriff or to vacate the dismissal. He took no action because he had recently tried two cases with similar facts and received defendantís verdicts. Further, the county was insolvent and, thus, he saw little chance of the complainant receiving any recovery. The respondent never advised the client of the dismissal and never discussed his position with the client.

After discussing the clientís remaining claim against the Commonwealth with the Assistant Attorney General assigned to handle the defense, the respondent determined that the claim had no merit. Without discussing the matter with the client, he agreed to dismiss the complaint and filed a motion to dismiss. The motion was allowed on February 22, 2000, and the respondent again failed to notify the client.

The client learned of the dismissals in or about March 1, 2000, after he requested and received a copy of the docket entries from the court. The client contacted the respondent to confront him about the situation, and the respondent visited the client to explain. The client then wrote to the respondent on March 4, 2000 and requested that the respondent provide a written explanation and return his file.

The client filed a complaint with Bar Counsel in May 2000, because he had yet to receive his file from the respondent. The file, in fact, had already been provided to the client except for the defendant sheriffís answer and the two dismissals. The respondent sent the clientís entire file to Bar Counsel and it was forwarded to the client.

On November 1, 2000, the court vacated the dismissal of the complaint against the Sheriff stating that the complaint had been dismissed in error. The respondent received notice that the dismissal had been vacated, but did not notify the client because he incorrectly assumed that the client had been notified by the court. He did not recommence prosecution of the claim because he was unsure that he should do so due to the complaint that the client had filed against him.

In July 2001, Bar Counsel notified the client that the dismissal of his claim against the sheriff had been vacated. The client contacted the respondent by letter on August 3, 2001, and they met on August 10, 2001 to discuss the matter. The client decided that the respondent should remain counsel and proceed with prosecution of the claim. The respondent agreed to do so.

By deciding not prosecute the clientís claims without discussing the matter with the client, and by failing to advise the client when the claims were dismissed, the respondent violated Mass. R. Prof. C. 1.4. By failing to prosecute the clientís claims or alternatively to move to withdraw, the respondent violated Mass. R. Prof. C. 1.3, and 1.16(c) and (d). By failing to have a written contingency fee agreement he violated Mass. R. Prof. C. 1.5(c).

The respondent has been a member of the bar since 1976, and has no history of discipline. The respondent accordingly received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-83

CLASSIFICATIONS:
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(b)]

SUMMARY:
The respondent was retained to represent clients who lost $195,000 in an investment involving entities in which a suspended attorney was the principal. The suspended attorney filed bankruptcy for himself and two of the entities in April 1997. The third entity was an out-of-state corporation. The respondent agreed in 1997 to file a superior court suit against the third entity.

After the respondent was retained, an oral fee agreement was reached between the clients and the respondent by the terms of which the respondent would be paid a $7,500 retainer fee plus 15% of any recovery. The clients paid the respondent $7,500. However, the clients never signed the proffered written fee agreement.

In 1998, the several bankruptcies were consolidated into one action. In late 1998, the out-of-state corporation agreed to pay several million dollars into bankruptcy court to pay creditors and settle all superior court suits. The clients accepted the settlement terms and agreed to dismiss their superior court suit against the out-of-state corporation for a share of the bankruptcy settlement proceeds.

In early January 1999, the bankruptcy court awarded the clients $60,000. In late January, 1999, the respondent received a call from the bankruptcy court informing him that the settlement checks were being printed. Fearing that the out-of-state corporation would itself file bankruptcy imminently and prevent recovery for his clients, the respondent traveled to the court and picked up the checks made out to each individual client. The respondent then signed the checks in his clientsí names and deposited them into his IOLTA account The respondent did not attempt to notify the clients that he had received the checks and did not obtain their permission to sign the checks on their behalf. Two days later the respondent disbursed the settlement funds to his clients minus his 15% fee.

By paying himself a contingent fee without a signed fee agreement, the respondent violated Mass. R. Prof. C. 1.5(c). By signing his clientsí names to the checks and depositing them into his IOLTA account before contacting the clients and obtaining specific permission, the respondent violated Mass. R. Prof. C. 1.4(b). In mitigation, the respondent was admitted to the Massachusetts Bar in 1983 and has no prior history of discipline. After the clients filed suit against him, his fee was upheld as reasonable in state court. Further, the out-of-state corporation did in fact file for bankruptcy in February 1999.

The respondent received an admonition for his conduct in this matter conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-84

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

SUMMARY:
This matter came to Bar Counselís attention as the result of receipt of a notice from the bank in which the respondent maintains his IOLTA account of two dishonored checks in the amounts of $1200 and $975 drawn on the respondentís IOLTA account. Payment would have created an overdraft of $1865.

The checks were returned unpaid because, unknown to the respondent, his wife had confused his IOLTA account checkbook with the checkbook for his personal account and had written three checks to herself without entering them on the ledger. One check that was returned unpaid was in fact a check that the wife had written to herself. The second check that was returned unpaid was unrelated. The respondent immediately deposited personal funds to the account and the second check was paid upon redeposit.

A review of the records of the respondentís trust account showed that, in addition to the proper deposit of settlements, the respondent also incorrectly made deposits to this account of earned fees. Fees on settlements were not withdrawn from the account as earned and, when paid, were withdrawn piecemeal. The respondent also paid various personal and office expenses directly from the IOLTA account. All of 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 account. Individual client ledgers were not kept and an accurate check register was not maintained.

The respondent accordingly 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. 01-85

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

SUMMARY:
This matter came to Bar Counselís attention as the result of the receipt of a notice from a bank of a dishonored check in the amount of $7,000.00 drawn on the respondentís IOLTA account. The respondent wrote this check to himself in partial payment of a $10,000.00 fee which he had received in a client matter. The check was returned for insufficient funds when the respondent attempted to deposit it to his office account. On the same day, the respondent also wrote himself a check for $1,000.00 from the IOLTA account which he cashed in further partial payment to himself of his earned fee in the same client matter.

The $7,000.00 check was dishonored because the respondent had deposited the earned fee to an old conveyancing account and not into the IOLTA account from which he wrote the checks. In error, the respondent wrote the two checks to himself from the IOLTA account instead of from the conveyancing account. As soon as he learned of the problem, he contacted the bank which reversed the $7,000.00 withdrawal and waived the $25.00 bank service charge. The respondent promptly deposited $1,000.00 of his own funds to reimburse the IOLTA account for the $1,000.00 withdrawal.

A review of records for the respondentís old conveyancing account revealed that this account was no longer being used exclusively for depositing and disbursing funds in connection with the bankís loan transactions. Instead, this regular business checking account was being used to hold general client funds. Because the account was not an IOLTA account, it was in violation of Mass. R. Prof. C. 1.15(e).

In addition, the respondent was holding earned fees in the conveyancing account together with client funds. This conduct constituted commingling of client and personal funds, in violation of Mass. R. Prof. C. 1.15(a). At Bar Counselís request, the respondent closed the conveyancing account and transferred the remaining client funds to his IOLTA account.

The respondent, who was admitted to practice in 1979 and had received no prior discipline, received an admonition conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-86

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

SUMMARY:
This matter came to Bar Counselís attention in September 1999 pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt of a notice of dishonored check from the bank in which the respondent maintained his IOLTA account.

The respondent had not checked his bank statements or reconciled his IOLTA account since May of 1998 when he effectively left the practice of law for alternative employment. He had left $220.00 in his IOLTA account, the exact amount that he owed to two clients. The respondent was unaware that a small check outstanding since 1997 cleared the account during the interim.

Bar Counsel subpoenaed the respondentís IOLTA Account, and discovered that the respondent was maintaining a commingled account, into which he deposited personal injury settlements and earned fees, and from which, in addition to proper disbursements to or for the benefit of clients, he made direct payment of personal and business expenses. The respondent did not maintain a check register, had inadequate supporting documentation for receipt and disbursement of client funds, and did not adequately keep track of withdrawals of his own funds. However, all funds due to clients had been appropriately disbursed.

The respondent was admitted to practice in 1986. He has no prior record of discipline. In December 1999 the respondent was administratively suspended for failure to comply with registration requirements. He was reinstated in October 2000, then assumed retirement status in June 2001.

The respondent received an admonition for paying personal and business expenses from his IOLTA account, thereby commingling his own funds with client funds, in violation of Mass. R. Prof. C. 1.15(a), and for failure to maintain adequate records of his handling of client funds, in violation of Mass. R. Prof. C. 1.15(b).


ADMONITION NO. 01-87

CLASSIFICATIONS:
Trust Account Commingling and Record Keeping [Mass. R. Prof. C. 1.15(a)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Improper Financial Assistance to Client [Mass. R. Prof. C. 1.8(e)]

SUMMARY:
The respondent settled a clientís personal injury claim for $15,000.00 in August 2000. In early September 2000, the respondent received the settlement check and distributed the net proceeds to the client as set forth on a detailed settlement sheet. The settlement sheet included photocopies of checks for the payment of various expenses which were deducted from the gross settlement. The client accepted the net settlement check.

The settlement sheet provided to the client contained debits for three ďadvancesĒ totaling $1,500.00 to the client from the respondent. Copies of the original checks for the advances were attached to the settlement sheet and were drawn on the respondentís IOLTA account. Another expense check for investigative services was also written on the respondentís IOLTA account.

The client subsequently learned that advance payments might be prohibited and used that information to attempt to force the respondent refund all of the expense debits, including the advances. On September 25, 2000, after receipt of two written demands threatening a report to the Board of Bar Overseers, the respondent informed his client that, although he may have been in error in advancing funds to her before the settlement and in paying for expenses from his IOLTA account, she was still obligated to repay the loans as agreed and obligated to reimburse the respondent for expenses in accordance with their written contingent fee agreement. The client promptly reported the matter to Bar Counsel.

The respondent admitted that he advanced funds to the client upon her request. He did so because the client was in financial difficulty and facing possible eviction. Regardless of the personal circumstances of the client, the respondentís conduct was in violation of Mass. R. Prof. C. 1.8(e).

Bar Counselís investigation further showed the following facts. In 1991 the respondent opened an IOLTA account and deposited certain of his own funds into the account. From the opening of the account until after notice of the complaint to Bar Counsel, the respondent used his personal funds in the account to pay for medical records, investigator reports, and expert testimony. These personal funds were also the source of the advance payments to the client. The respondent failed to keep a ledger showing the running balance of personal funds and, without extensive calculations, could not determine on any particular day the amount of personal funds remaining in the account. The respondentís commingling and inadequate record keeping was in violation of Mass. R. Prof. C. 1.15(a) and (d).

The respondent was admitted in 1972 and has no prior discipline. The respondent has since received training in trust accounting. The respondent accordingly received an admonition conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 01-88

CLASSIFICATIONS:
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)]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]
Failure to Cooperate in Bar Discipline Investigations [S.J.C. Rule 4:01, ß3]

SUMMARY:
The respondent represented a client in connection with several collection matters. At the time the respondent was a newly admitted and struggling sole practitioner. With the clientís authorization, the respondent borrowed money from the funds collected. The respondent did not fully account to the client for funds collected and funds borrowed until after the client had complained to Bar Counsel, thereby violating Mass. R. Prof. C. 1.15(a) and (b).

The respondent did not respond to Bar Counselís request for information until subpoenaed, in violation of Mass. R. Prof. C. 8.4(g) and Supreme Judicial Court Rule 4:01, ß 3.

The respondent received an admonition for her conduct in this matter. In connection with this disposition, she also obtained training in trust accounting and attended a CLE course designated by Bar Counsel.


ADMONITION NO. 01-89

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately With Client [Mass. R. Prof. C. 1.4]

SUMMARY:
On or about February 7, 2000, a client retained the respondent to assist him in preparing estate tax returns for his fatherís estate. The clientís father died on December 20, 1999. His estate tax returns were due on September 20, 2000, nine months after the date of death. The respondent is a certified public accountant as well as an attorney.

Between March of 2000 and September of 2000, the client provided the respondent with asset valuation information concerning the fatherís estate. At no time during the representation did the respondent write to the client to inform him of the nine-month deadline for filing the estate tax returns. As the deadline for filing the returns approached, the respondent did not take steps to notify his client that either the returns or requests for extension should be filed, or the estate would be subject to penalties and interest charges. The respondent did not file the estate tax returns by the deadline. He also did not file requests for extensions of time to file the returns with either the state or federal taxing authorities.

In January of 2001, the client learned from a book that estate tax returns are due nine months after date of death, unless an extension is filed. He called the respondentís office several times over the next two weeks, but did not receive any reply. On or about January 19, 2001, the client received in the mail a federal estate tax return from the respondent. On or about January 23, 2001, the complainant delivered the federal estate tax return with payment in person to the IRS office in Boston. He learned at that time that the estate would be liable for interest and penalties because the return had been filed late, and no extensions had been requested or granted. The client later learned that the IRS had assessed penalty and interest charges of $26,852.51, which he paid. The Florida Department of Revenue also assessed penalty and interest charges of $7,240.69. Through his own efforts, the client was able to have the Florida penalty abated. He paid the $971.69 in interest charges.

By failing to alert his client to the impending tax filing deadline, or to take steps to timely file the returns or requests for extension, the respondent neglected his clientís legal matter, in violation of Mass. R. Prof. C. 1.3. The respondent also failed to adequately communicate with his client in violation of Mass. R. Prof. C. 1.4(a).

In mitigation, the respondent has notified his malpractice insurer of the clientís claim, and expects to reimburse the client in full for the penalties and interest charges. In addition, during the relevant time period the respondent was experiencing a number of personal losses involving the illness and death of close family members.

The respondent, who was admitted to practice in 1987 and had received no prior discipline, received an admonition for his conduct.



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