2002 Admonitions
ADMONITION NO. 02-01
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)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)(2)]
SUMMARY:
This matter came to Bar Counsel’s attention as the result of the receipt pursuant to Mass. R. Prof. C. 1.15(f) of a notice of dishonored check from the bank in which the respondent’s IOLTA account is maintained. The check that was returned was payable on behalf of a client in the amount of $1620 and payment would have caused an overdraft of $741. The respondent immediately issued a replacement check, using personal funds.
The respondent’s record keeping in his IOLTA account was generally deficient. Individual client ledgers were not kept; an accurate check register was not maintained; fees were not withdrawn from the account as earned and instead were withdrawn piecemeal; and the account was not reconciled. The respondent did not always keep adequate track of withdrawals, resulting in overpayments to clients and himself that ultimately led to the dishonored check. The respondent’s conduct in these respects constitutes commingling and inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a) and (d)(2).
The respondent has been a member of the Bar since 1965 with no prior discipline. He has now instituted changes to his record keeping procedures to prevent a recurrence of these problems. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 02-02
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)]
Notice of Dishonored Check[DR 9-103]
SUMMARY:
This matter came to Bar Counsel’s attention pursuant to former Canon Nine, DR 9-103 as the result of the receipt of a notice of dishonored check from the bank in which the respondent’s IOLTA account is maintained. The check at issue was a refund of a fee to a client.
The account in question was in fact a commingled account into which the respondent deposited personal or business funds as well as client funds and from which, in addition to proper disbursements to or for the benefit of clients, the respondent made direct payment of personal or business expenses. The respondent did not maintain adequate records. His check register was insufficient and inaccurate, he did not maintain individual client ledgers, and he did not reconcile the account. In several instances, fees were refunded to clients from the IOLTA account but the respondent could not clearly designate the original deposits or explain the source of the reimbursement. The respondent did not always keep adequate track of deposits or withdrawals, causing the shortfall in the account that led to the dishonored check. After the check was returned, a missing deposit was located and the check was paid when redeposited.
The respondent’s conduct in this matter constituted commingling and inadequate recordkeeping, in violation of Canon Nine, DR 9-102(A)and DR 9-102 (B)(3). The respondent is a solo practitioner who has been a member of the Massachusetts bar since 1992 with no prior discipline. He 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. 02-03
CLASSIFICATIONS:
Withdrawal Without Protecting Client [DR 2-110(A)(2)]
Neglect of a Legal Matter [DR 6-101(A)(3)]
Failure to Represent a Client Zealously [DR 7-101(A)(1), (2)]
Failure to Maintain Proper Records of Client’s Property [DR 9-102(B)(3)]
SUMMARY:
The respondent represented two clients in civil litigation matters. In the first matter, he neglected a client’s dental malpractice case by failing to bring suit within the applicable statute of limitations period. The respondent had been retained by the client in June of 1995. The respondent assigned the case to a contract lawyer whom he had hired to help with legal work within the respondent’s office. This lawyer worked for the respondent until 1997, when he left to open another office. The statute of limitations expired on the client’s case in October of 1997, without suit having been filed.
In 1998, the client attempted to contact the respondent to inquire about the status of the case, but the respondent did not reply. When the matter was reported to Bar Counsel, the respondent promptly acknowledged that he had failed to adequately supervise the attorney to whom he had assigned the case. He also acknowledged that he had lost the client’s file, and that he had not adequately communicated with the client. The respondent paid the client $2,700.00 to reimburse him for the fees he had paid to his original dentist.
By neglecting a legal matter entrusted to him, and by failing to zealously represent his client and to carry out a contract of employment with his client for professional services, the respondent violated Canon Six, DR 6-101(A)(3) and Canon Seven, DR 7-101(A)(1) and (2). By failing to maintain or safeguard his client’s file, resulting in the total loss of the file, the respondent violated Canon Nine, DR 9-102(B)(3).
In the second matter, the respondent was retained in March of 1996 to represent a 14-year old girl in pursuing a medical malpractice claim. The girl had sought treatment in 1993 for headaches and seizures, and was diagnosed as suffering from epilepsy. In April of 1995, a different physician performed an MRI exam, and discovered a brain tumor which was surgically removed. The girl did not suffer permanent side effects from the condition.
In January of 1998, the physician’s malpractice insurer wrote to the respondent denying any liability. The respondent concluded that the medical malpractice case was not worth pursuing, but he failed to adequately communicate his conclusion to the client. The respondent allowed the statute of limitations to expire without filing suit or allowing the client an opportunity to seek new counsel to represent her in the matter.
On January 27, 1999, the client’s successor counsel filed suit against the respondent for legal malpractice. On October 27, 2000, the parties entered into an agreement for judgment which provided that the respondent would pay $10,000.00 to the client. The respondent has paid this judgment in full.
By failing to adequately communicate with his client and neglecting a legal matter, the respondent violated Canon Six, DR 6-101(A)(3). By withdrawing from the client’s case without taking reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client and allowing time for employment of other counsel, the respondent violated Canon Two, DR 2-110(A)(2).
The respondent was admitted to practice in 1974 and had received no prior discipline. In mitigation, he was in an accident in October of 1994 and afterwards he suffered from depression which prohibited him from returning to work full-time during the relevant time period. The respondent also went through a difficult divorce during this time. The respondent has sought and obtained treatment for his depression. He also attended a CLE program designated by Bar Counsel. In addition, both clients received compensation from the respondent for the matters which he neglected.
The respondent received an admonition for his conduct.
ADMONITION NO. 02-04
CLASSIFICATIONS:
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)
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 §3]
SUMMARY:
The respondent was retained by a client to represent him in an appeal to the Massachusetts Department of Environmental Protection (DEP) of a local conservation commission’s finding that a project that the client opposed did not implicate the Wetlands Protection Act. The client’s case was dismissed by the DEP. The client was dissatisfied with the outcome and filed a complaint with Bar Counsel alleging, among other concerns, that the respondent had failed to return his file as requested.
Between November 2000 and May 2001, Bar Counsel made repeated requests for the file. The respondent asked for extensions from time to time, but did not comply with his own deadlines. On May 2, 2001 the respondent indicated that he was in the process of sending the file out to a copy center to be copied. The copy center misplaced the file but located it on September 15, 2001. The respondent did not transmit the file to his client until October 15, 2001. The respondent’s persistent failure to return his client’s file was in violation of Mass. R. Prof. C. 1.16(e).
In addition, in two other unrelated complaints that otherwise would not have warranted disciplinary action, the respondent repeatedly failed to reply to Bar Counsel’s inquiries, necessitating the issuance of two subpoenas to compel his appearance. The respondent failure to cooperate with Bar Counsel was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 §3.
In aggravation, the respondent was cautioned by Bar Counsel in October 1996 as to his obligation to cooperate with of Bar Counsel. In mitigation, during some of the time period involved, the respondent’s wife and child were seriously ill. Under these circumstances, the respondent received an admonition subject to attendance at a CLE program recommended by Bar Counsel.
ADMONITION NO. 02-05
CLASSIFICATIONS:
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]
SUMMARY:
In April 2001 the respondent was retained to represent a client in domestic matters including defending a 209A abuse prevention petition and responding to a divorce proceeding commenced by the client’s wife. The client paid the respondent a $2,600.00 retainer, to be billed against the respondent’s hourly rate.
The respondent successfully defended the 209A charge, filed an answer to the wife’s complaint for divorce and commenced to negotiate with opposing counsel. Opposing counsel scheduled motions for temporary orders to be heard on June 19, 2001.
On June 18, 2001, the client informed the respondent that he and his wife had reconciled and requested an accounting and the return of the balance of the retainer. In July 2001 and August 2001, the client called the respondent’s office and again requested the return of the balance of the funds. In October 2001, the client filed a complaint with Bar Counsel. In December 2001, the respondent finally refunded $802.50, representing his calculation of the balance of the retainer.
The respondent’s failure to promptly account to his client upon demand and his failure to timely return the unearned portion of the retainer was in violation of Mass. R. Prof. C. 1.15(b) and 1.16(d).
In May 2000, in an unrelated matter, the respondent was cautioned by Bar Counsel regarding the obligation to promptly account to clients upon request. The respondent accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 02-06
CLASSIFICATION:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
SUMMARY:
In July of 1997, the respondent deposited into her IOLTA account a PIP check received on behalf of a client in the amount of $642.00. The funds were to be held pending settlement or judgment on the bodily injury claim. Subsequently, the respondent became ill and closed her law practice. The client’s personal injury case, which was still pending, was transferred to another attorney. However, the respondent overlooked the fact that this $642.00 remained undistributed. After the personal injury case was settled, the client in 2001 filed a complaint with Bar Counsel concerning the PIP funds. The PIP funds have since been disbursed.
The respondent’s conduct in failing to maintain financial records adequate to apprise her of the fact that she was holding escrow funds in her trust account constitutes inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a). The respondent has been a member of the Bar since 1994 and has no prior disciplinary history. The respondent is currently on inactive status and employed in a non-legal position. She accordingly received an admonition for the above violation.
ADMONITION NO. 02-07
CLASSIFICATIONS:
Conduct Prejudicial to the Administration of Justice [DR 1-102(A)(5)]
Conduct adversely Reflecting on Fitness to Practice [DR 1-102(A)(6)]
Violating Established Rule of Procedure/Evidence [DR 7-106(C)(7)]
SUMMARY:
On or about June 16, 1997, the mother of a minor filed a complaint for contempt as to a support order that had been issued against the child’s father (the defendant), on May 6, 1997. The defendant, an out-of-state resident, had been ordered to provide health insurance for the child and to pay support to the child’s mother in the amount of $200.00 per week. The respondent then agreed to represent the mother. He filed another contempt complaint on her behalf approximately two days later.
During this period, the defendant was also involved in a forfeiture case that had been filed by a district attorney’s office in December 1995. The district attorney was seeking to seize over $44,000.00 in cash that had been found pursuant to a search warrant. The government claimed that the money was the proceeds of illegal drug trafficking. On December 21, 1995, the court ordered the money to be held by the clerk pending resolution of the forfeiture action. The defendant was represented by counsel in the matter and was actively challenging the government’s claim. The probate court was aware of the forfeiture action and issued an order in May 1997, barring the defendant or his attorney from disbursing any of the funds that were the subject of the forfeiture.
On or about August 29, 1997, the respondent sent a letter to the assistant district attorney who was handling the forfeiture case for the Commonwealth, advising him of the probate court order prohibiting the defendant or his attorney from distributing the funds that were subject to the forfeiture. He also provided the prosecutor with a copy of the defendant’s financial statement, in violation Rule 401(d) of the Massachusetts Rules of Domestic Relations Procedure.
By providing the defendant’s financial statement to the prosecutor, the respondent violated a court rule in violation of Canon Seven, DR 7-106(C)(7), and engaged in conduct prejudicial to the administration of justice in violation of Canon One, DR 1-102(A)(5) and DR 1-102(A)(6).
In mitigation, there was no harm to the defendant or the client. The defendant recovered the money in the forfeiture action and paid the respondent’s client $10,000.00 to settle the contempt matter. 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. 02-08
CLASSIFICATIONS:
Withdrawal Without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16d]
Handling a legal matter without adequate preparation [Mass. R. Prof. C. 1.1]
SUMMARY:
In or around September 1997, the respondent met with a potential client who had been referred to him by another attorney regarding an incident that occurred in a hospital emergency room on or about August 8, 1997. Hospital security personnel attempted to detain him and a confrontation ensued. The police were called to the scene and the client was placed under arrest. The client alleged that the police used excessive force during the incident and that he did not receive proper medical treatment for the injuries that he sustained. The respondent declined to represent the client.
According to the client, the police officer who had arrested him continually harassed him after the August 1997 incident. The client complained to the officer’s superiors, but his complaint was ignored. The client then successfully videotaped the officer engaged in criminal conduct and he presented the tape to the police department’s Internal Affairs Division. The officer was dismissed from the department. Shortly thereafter, in April 1998, the client was arrested several times by the same police department. The dismissed officer’s former partner also filed a 51A report against him with the Department of Social Services alleging child abuse. The client contends that there was no basis for these actions other than retaliation for the arresting officer’s termination.
As a result of these new developments, the respondent agreed to represent the client in connection with civil claims arising from the August 1997 incident and the April 1998 arrests. The respondent informed the client that if he did not prevail on the criminal charges, he would be very unlikely to prevail in a civil rights suit against the city. A contingent fee agreement was executed, and the respondent represented the client from May 1998 through March 2001.
In January 2000, the respondent learned that the client was incarcerated and that he had been convicted on a number of the charges that formed the basis of the client’s potential civil suit against the city. In light of these developments, the respondent no longer believed that the client had viable grounds to file suit against the city. However, he failed to convey this opinion to the client and never stated that he would not pursue the client’s claims.
On or about August 28, 2000, the client telephoned the respondent regarding the status of the matter. The respondent incorrectly advised the client that the statute of limitations on his claims was tolled due to his imprisonment and would remain tolled until he was released. The respondent’s error regarding the statute of limitations was due to inadequate preparation, in violation of Mass. R. Prof. C. 1.1.
The client claimed that he subsequently attempted to contact the respondent, but was not able to reach him. He decided to find another lawyer. Upon speaking with other counsel, the client learned that the statute of limitations for his case was not tolled during his incarceration and that it was too late to file his 1997 claim.
The client filed a grievance against the respondent at the Office of Bar Counsel. On March 30, 2001, after being notified of the client’s grievance, the respondent visited the client in jail and gave him a letter explaining that he had been in error when he advised the client that the statute of limitations was tolled due to his imprisonment. The respondent apologized to the client and provided the client with the name and address of his malpractice carrier. The respondent also advised the client that the statutes of limitations on the claims arising out of the incidents that occurred in April 1998 were about to expire commencing on April 4, 2001. The respondent told the client that he was unable to file suit on behalf of the client due to the complaint that the client had filed against him at the Office of Bar Counsel.
The respondent’s belated withdrawal from the cases arising out of the April 1998 incidents violated Mass. R. Prof. C. 1.16(d). The respondent did not adequately protect the client’s interests because the client did not have adequate time to seek other counsel.
The respondent has been a member of the bar since 1985. He has no prior discipline. Accordingly, the respondent received an admonition conditioned upon his attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 02-09
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)]
Knowingly Advancing Frivolous Claim or Defense [Mass. R. Prof. C. 3.1]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]
SUMMARY:
On April 9, 1999, the two respondents ("A" and "B") filed a complaint on behalf of the client in the Superior Court to recover damages from certain brokers related to the brokers’ negotiation and drafting of a commercial lease for the client. The Superior Court dismissed this lawsuit five months later, on August 30, 1999, due to the respondents’ failure to serve the complaint. The client disputed the respondents’ claim that the client had agreed to a dismissal and the only written communication on this issue to the client from the respondents postdated the dismissal.
Respondent A offered to attempt to have the dismissal of the Superior Court action vacated so that the client’s current counsel could pursue the case. The client, however, declined to accept that offer.
By allowing the lawsuit to be dismissed without clear authorization from the client, the respondents neglected a legal matter in violation of Mass. R. Prof. C. 1.3.
In a second, unrelated matter the respondents agreed to represent the same client on a contingent fee basis against certain contractors to recover damages for the defective repair of a roof and skylights in one of client’s commercial buildings. In January of 1998, the respondents drafted the complaint and filed it in the Superior Court. Respondent A worked out a settlement agreement with the defendants for $18,000 and received most of the funds by July of 2000. Respondent A deposited those funds to his trust account, but failed to account to the client or remit the client’s share until December 2000.
By failing to timely account for and distribute settlement funds to the client, the respondents violated of Mass. R. Prof. C. 1.15(b).
On February 5, 2001, respondent B served the client and client’s new attorney with a demand letter under Massachusetts General Laws c. 93A. That demand letter alleged in relevant part that the respondents had claims against the client and his attorney for approximately $100,000, a large portion of which represented lost contingent fees. The demand letter further alleged that the client and his attorney were to blame for the fact that the second lawsuit settled for $18,000 rather than the $250,000 anticipated by the respondents when they accepted the case. The c.93A letter demanded that the client and his attorney make an offer to settle the respondents’ alleged claim of $100,000.
By serving the client with a groundless demand letter under c.93A and causing him to incur time and expenses to respond to that demand, the respondents advanced a frivolous claim in violation of Mass. R. Prof. C. 3.1 and engaged in conduct adversely reflecting on their fitness to practice law in violation of Mass. R. Prof. C. 8.4(h). In mitigation, after the client filed a complaint with Bar Counsel, the respondents reconsidered and withdrew the claim.
The respondents received an admonition for the above misconduct, conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 02-10
Board decision (admonition), voting to adopt the report of the hearing committee and its recommendation, entered January 10, 2002.
HEARING COMMITTEE REPORT
A petition for discipline was filed by Bar Counsel on November 30, 2000 against the respondent charging him with using Massachusetts Senate letterhead to write a letter of recommendation when he was no longer a Massachusetts senator and failing to correct the letter when he learned that it had not identified him as a former senator.
The respondent, represented by counsel, filed an answer on December 20, 2000. The parties filed a stipulation as to certain facts prior to the hearing, which was held on May 14, 2001. Fifteen exhibits were admitted into evidence and four witnesses testified, including the respondent.
I. Findings of Fact
1. The respondent was admitted to the Massachusetts bar on April 25, 1984 (Stip. 1; Tr. 20).
2. The respondent served in the Massachusetts Senate from January 1, 1966 until he resigned on March 31, 1977 (Stip. 1; Tr. 22, 54). From 1966 to at least sometime in 1995, the respondent had official Massachusetts Senate stationery in his possession, identifying him by name as a state senator (Stip. 1; Tr. 22-23; see Ex. 1).
3. In early 1995, two developers were in the process of attempting to secure an alien landholder’s license from the government of Anguilla to permit construction of a “time share” resort in Anguilla (Stip. 2). The respondent knew of one of the developers from some projects he had built in Framingham and some work he had done in Anguilla (Stip. 2). In addition, the respondent and his wife were close friends with this developer’s sister and her husband (Stip. 2).
4. Sometime in February 1995, the sister asked the respondent to write a letter of recommendation on behalf of her brother, the developer, on the respondent’s Senate stationery (Stip. 3; Tr. 23-26, 31; Ex. 10; see Ex. 6, p.56). The respondent agreed on condition that the sister identify the respondent in the letter as a former member of the Senate (Stip. 3; Ex. 10, Ex. 6, pp. 58-59, 65; Tr. 102). Rather than write the letter, the respondent signed one or more pieces of his Senate letterhead in blank, gave them to the sister to prepare the letter (Stip. 3), and asked her to review the language with him before giving the letter to her brother (Tr. 23-26; Ex. 10; Ex. 6, pp. 58-59, 64-65).
5. Subsequently, the sister prepared a letter on the blank Senate letterhead signed by the respondent (Stip. 3). After drafting the letter, in February or March 1995, the sister read it to the respondent, over the telephone (Tr. 27, 31; Ex. 6, p. 59). The letter was addressed “To Whom It May Concern” (Ex. 1), and vouched for the developer’s reputation and background (Stip. 3). The letter prepared by the sister did not identify the respondent as a former state senator (Stip. 3; Ex. 10); the respondent called this to the sister’s attention and asked her to change the letter to refer to him as a former state senator (Tr. 27-28, 102; Ex. 6, pp. 59-60, 65-66). Based on the language in the recommendation letter referring to the Anguillan government, we find that the respondent knew, at least at the time the draft was read to him by the sister, that the letter of recommendation would be delivered to officials of the government of Anguilla in connection with the efforts to secure the necessary permission to proceed with the development project (Tr. 29-30; see Ex. 6, p. 62). The respondent did not, however, ask her to send him a copy of the letter after it was sent (Tr. 27-28, 30; Ex. 6, p. 66). The draft letter was substantially the same as the letter which was subsequently sent to the Anguillan government, which still did not identify the respondent as a former state senator (Tr. 27; Ex. 1).
6. We find that, because the respondent specifically conditioned the use of the letterhead on identifying the respondent as a former senator and, after hearing the draft, requested her to change it to accord with his condition, he did not intend to misrepresent himself in the letter as presently holding office. Concomitantly, we find that the respondent’s imposition of this condition establishes that he knew that use of the letterhead without identifying him as a former senator would be misleading.
7. In late August or early September 1995, the sister told the respondent in another telephone conversation that she had delivered the letter of recommendation to her brother that was written on the respondent’s state senate letterhead (Ex. 6, pp. 66-67) and that she had not identified the respondent as a former state senator in the letter (Stip. 4; Ex. 6, pp. 60, 66; Tr. 36-37). When the respondent learned this, he told the sister he was upset with her (Tr. 37; Ex. 6, p. 66-67).
8. After the respondent learned that the letter did not refer to him as a former senator, despite the fact that he knew that the letter would be delivered to government officials in Anguilla (Tr. 29-30), he, nonetheless, took no action to notify any official of the government of Anguilla that he was not a sitting state senator when the letter was submitted, to have the letter returned, to prevent its submission, or to have the letter otherwise corrected (Stip. 4; Tr. 37-39; Ex. 6, pp. 67-68). Contrary to the respondent’s claims, we find that the respondent could have contacted the sister or her brother to find out where the letter was, ask them not to submit it to anyone, or ask them to correct the letter.
9. On August 18, 1995, the letter of recommendation for the brother identifying the respondent as a state senator was submitted to officials of the Anguillan government by the brother, or others on his behalf, as part of an application for an alien landholder’s license (Tr. 43-44; Ex. 11). Other letters of recommendation were submitted along with the one signed by the respondent (see Ex. 11).
10. Between April 27, 1995 and November 28, 1995, the respondent and his wife invested at least $130,000 in the entity which was developing and marketing this project on Anguilla (Stip. 5; Ex. 12). On April 27, 1995 they invested $25,000; on June 21, 1995, $4,000 and $46,000; on August 19, 1995, $50,000; and on November 28, 1995, $5,000 (Ex. 12; Tr. 34-36; see Ex. 8, Ex. 9). There were a number of other investors in this project (Stip. 5). The respondent understood that there was possibility of making five to ten times his investment (Tr. 32, 35).
11. The application was formally rejected on December 5, 1995 (Tr. 86; Ex. 11)
II. Conclusions of Law
12. Bar Counsel charges that the respondent’s conduct in using Massachusetts Senate letterhead to write a letter of recommendation for the developer when the respondent was not a Massachusetts senator and his failure to correct the letter when he learned the letter had not identified him as a former senator, violated Canon One, DR 1-102(A)(4) (dishonesty, fraud, deceit or misrepresentation) and (6) (conduct reflecting adversely on fitness to practice). We conclude that the respondent’s conduct in permitting the developer’s sister to use the Senate letterhead to write a letter of recommendation when the respondent was not a Massachusetts senator did not constitute a violation of the charged disciplinary rules because the respondent specifically conditioned the use of the letterhead on identifying him as a former state senator. While his conduct in providing the sister with letterhead, signed in blank, was negligent, he did require her to properly identify the fact that he was no longer a state senator.
We conclude, however, that the respondent’s conduct in failing to correct the letter when he learned it had not identified him as a former senator constituted a violation of the charged disciplinary rules.
III. Factors in Mitigation and Aggravation
13. The respondent’s misconduct occurred in connection with business transactions outside the practice of law. See Matter of Concemi, 422 Mass. 326, 331 (1996); Matter of Gleason, 10 Mass. Att'y Disc. R. 141 (1994).
14. The respondent’s misconduct did not result in harm to the Anguillan government or others since the license sought was denied for other reasons. It is acknowledged that the absence of harm is a “typical” mitigating factor, not warranting a lesser sanction. See Matter of Alter, 389 Mass. 153, 157 (1983).
15. The respondent has engaged in a number of civic and charitable activities (Tr. 69-76). Such conduct is considered “typical” as opposed to “special” mitigation, not warranting a change in sanction. Matter of Alter, 389 Mass. 153, 156 (1983).
16. Bar Counsel argues that the respondent’s failure to take any action to correct the misrepresentation that he was presently a senator was motivated by personal interests, that is, to further his investment in the project. We find that the respondent’s investment was a motive for his failure to correct the letter; however, we are not persuaded that it was his primary motive or that he would have corrected the letter absent such motive.
IV. Recommendation for Discipline
Bar Counsel seeks a public reprimand for the respondent’s misconduct, arguing that the respondent engaged in a misrepresentation to the Anguillan government that he was presently a Massachusetts Senator in order to obtain approval of a real estate project in which he was an investor. Bar Counsel admits that this misconduct was less severe than that in Matter of Jacobson, 7 Mass. Att'y Disc. R. 123 (1991) (one-year suspension for dishonesty and misrepresentations in business transactions outside the practice of law resulting in harm) and Matter of Gleason, 10 Mass. Att'y Disc. R. 141 (1994) (two-year suspension for fraud, misrepresentations, and forgery in business transactions outside the practice of law causing harm).
The respondent first argues that the case should be dismissed because his failure to correct a letter, sent in a business transaction outside the practice of law, when he learned the letter did not disclose that he was a former senator, does not constitute misconduct. Alternatively, if the hearing committee concludes that the respondent’s conduct violated the disciplinary rules, the respondent argues that an admonition would be the appropriate sanction, analogizing this matter to cases involving deceptive attorney letterhead, which have generally warranted private discipline, citing AD-98-64, 14 Mass. Att'y Disc. R. 928 (1998) (deceptive use of “& Associates” in letterhead); AD-98-22, 14 Mass. Att'y Disc. R. 845 (1998) (deceptive use of “Attorney at Law” prior to admission to bar); AD-96-12, 12 Mass. Att'y Disc. R. 617 (1996) (use of letterhead reflecting membership in Massachusetts bar when inactive); AD-95-50, 11 Mass. Att'y Disc. R. 408 (1995) (use of letterhead reflecting membership in NY bar when not in good standing). In addition, an admonition was imposed in a case in which the attorney sent an inaccurate “to whom it may concern” letter on behalf of client implying landlord-tenant relationship between attorney and client. AD-97-5, 13 Mass. Att'y Disc. R. 871 (1997).
We find that the misconduct in this matter is most closely analogous to the cases cited by the respondent, involving misrepresentations in connection with the practice of law, on attorney letterhead, regarding the attorney’s status, or in the latter case, misrepresenting the client’s status. Indeed, because those cases concerned calculated misrepresentations made in connection with the practice of law, for the purpose of furthering the attorneys’ business, we consider the misconduct presented in those cases more egregious than that here.
For the foregoing reasons, we recommend that the respondent receive an admonition.
Respectfully submitted,
By the Hearing Committee,
______________________________
Kenneth V. Desmond, Jr., Chair
______________________________
Daniel T.S. Heffernan
______________________________
Fern Miller
ADMONITION NO. 02-11
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)]
Knowingly Advancing Frivolous Claim or Defense [Mass. R. Prof. C. 3.1]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]
SUMMARY:
On April 9, 1999, the two respondents (“A” and “B”) filed a complaint on behalf of the client in the Superior Court to recover damages from certain brokers related to the brokers’ negotiation and drafting of a commercial lease for the client. The Superior Court dismissed this lawsuit five months later, on August 30, 1999, due to the respondents’ failure to serve the complaint. The client disputed the respondents’ claim that the client had agreed to a dismissal and the only written communication on this issue to the client from the respondents postdated the dismissal.
Respondent A offered to attempt to have the dismissal of the Superior Court action vacated so that the client’s current counsel could pursue the case. The client, however, declined to accept that offer.
By allowing the lawsuit to be dismissed without clear authorization from the client, the respondents neglected a legal matter in violation of Mass. R. Prof. C. 1.3.
In a second, unrelated matter the respondents agreed to represent the same client on a contingent fee basis against certain contractors to recover damages for the defective repair of a roof and skylights in one of client’s commercial buildings. In January of 1998, the respondents drafted the complaint and filed it in the Superior Court. Respondent A worked out a settlement agreement with the defendants for $18,000 and received most of the funds by July of 2000. Respondent A deposited those funds to his trust account, but failed to account to the client or remit the client’s share until December 2000.
By failing to timely account for and distribute settlement funds to the client, the respondents violated of Mass. R. Prof. C. 1.15(b).
On February 5, 2001, respondent B served the client and client’s new attorney with a demand letter under Massachusetts General Laws c. 93A. That demand letter alleged in relevant part that the respondents had claims against the client and his attorney for approximately $100,000, a large portion of which represented lost contingent fees. The demand letter further alleged that the client and his attorney were to blame for the fact that the second lawsuit settled for $18,000 rather than the $250,000 anticipated by the respondents when they accepted the case. The c.93A letter demanded that the client and his attorney make an offer to settle the respondents’ alleged claim of $100,000.
By serving the client with a groundless demand letter under c.93A and causing him to incur time and expenses to respond to that demand, the respondents advanced a frivolous claim in violation of Mass. R. Prof. C. 3.1 and engaged in conduct adversely reflecting on their fitness to practice law in violation of Mass. R. Prof. C. 8.4(h). In mitigation, after the client filed a complaint with Bar Counsel, the respondents reconsidered and withdrew the claim.
The respondents received an admonition for the above misconduct, conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 02-12
Board decision (admonition), voting to adopt the report of the hearing committee and its recommendation, entered March 11, 2002.
HEARING COMMITTEE REPORT
On May 18, 2001, Bar Counsel filed a four-count petition for discipline against the respondent, John Doe. The petition alleged that the respondent, on four separate occasions between March 1999 and April 2000, failed to maintain adequate records resulting in dishonored checks: in three instances the respondent closed on real estate loans without confirming that the funds had been received and were in the appropriate account; in the fourth instance, the respondent sent a check to a borrower in a refinancing before the expiration of the rescission period and before the loan was funded. The respondent filed an answer, pro se, in which he admitted all but one of the facts alleged in the petition. After the first prehearing conference, the respondent retained counsel and filed an amended answer and claims in mitigation. Subsequently, the parties stipulated to substantially all of the facts alleged in the petition1 and the admissibility of the exhibits later submitted at the hearing. The hearing was held on October 30, 2001. Thirty-two exhibits were introduced into evidence and the respondent testified.
I. Findings of Fact
1. The respondent was admitted to the Massachusetts bar in December 1990 (Tr. 7).
Count One
2. On March 30, 1999, the respondent as closing attorney for a lender bank deposited mortgage funds in the amount of $117,163.94 to his conveyancing account at a different bank (Stip. 5; Ex. 2).2 These proceeds were for a refinancing for a borrower named Jane Smith (Stip. 5; Ex. 1, 2, 3).
3. The respondent conducted the Smith closing and issued disbursement checks from his IOLTA account, no. 137-33449, at a third bank (Stip. 6; Ex. 3, 4, 5).
4. The respondent did not transfer the mortgage proceeds from his conveyancing account to the IOLTA account prior to making disbursement (Stip. 7). There were sufficient unrelated funds in the IOLTA account so that all checks relating to the Smith closing cleared (Stip. 7). However, the resulting shortfall in the IOLTA account caused check no. 2625 in the amount of $151,661.45 and relating to another, unrelated closing to be returned unpaid on April 7, 1999 (Stip. 7; Ex. 6).
5. The respondent transferred the funds for the Smith refinancing from the conveyancing account to the IOLTA account on April 9, 1999 and the check no. 2625 cleared upon redeposit (Stip. 8; Ex. 2, 5, 7).
Count Two
6. On August 2, 1999, the respondent as closing attorney represented a mortgage company as lender in a sale of real estate from Sally Jones to Margaret Moe (Stip. 9; Ex. 8, 9).
7. The respondent closed on the transaction and disbursed the sale proceeds in full without confirming with the bank where his IOLTA account was that the lender had wired the new mortgage proceeds of $129,600 to his IOLTA account (Stip. 10). However, the respondent had previously been advised by the lender itself that the proceeds had been wired (Stip. 10). The funds were not in fact received until August 10, 1999 (Stip. 10; Ex. 11, 12).
8. There were sufficient unrelated funds in the IOLTA account so that all checks relating to the Jones/Moe closing cleared (Stip. 11). However, the resulting shortfall in the IOLTA account caused an unrelated check, no. 2936 in the amount of $134,638.37, to be returned unpaid on August 5, 1999 (Stip. 11; Ex. 12, 13).
9. Check no. 2936 was payable to another mortgage company and was intended as the payoff of a mortgage for James and Alice Able, who had refinanced on July 29, 1999 with the respondent as closing attorney for the same mortgage company which was the lender in the Jones/Moe closing (Stip. 12; Ex. 14-17). The dishonored check cleared upon redeposit on August 10, 1999 when the mortgage funds were finally wired (Stip. 12; Ex. 12).
10. Before the Jones/Moe mortgage funds were finally wired by the lender on August 10, 1999, the respondent on August 6, 1999 issued the other mortgage company check no. 2948 to replace check no. 2936 that had been returned for insufficient funds (Stip. 13; Ex. 18). The respondent spoke with an individual in the payoff department at that mortgage company before mailing check no. 2948 (Stip. 13); the respondent stated in his answer that he requested and the mortgage company representative agreed that the new check would not be presented for payment until the respondent contacted the payoff department (Ans. 9; see Tr. 28). We note that the letter the respondent sent with the check did not request that it be held until he contact them, and that it, in fact, requested that a discharge be issued upon receipt of the check (Ex. 18). The respondent also admitted at the hearing that he knew when he sent this check that he did not have the funds to cover it in his account (Tr. 26-27, 36). The mortgage company redeposited the original check no. 2936, which then cleared, so that check no. 2948 was never processed (Stip. 13; Ex. 12).
Count Three
11. In or about October 1999, the respondent commenced using a new IOLTA account, no. 270-79137, at the same bank where his other IOLTA account was located (Stip. 14; see Ex. 19B).
12. On March 24, 2000 the respondent as closing attorney represented a mortgage company as lender in a refinancing for Marie Cruz (Stip. 15). From this refinancing, the respondent was to pay off existing mortgages and loans and Ms. Cruz was to receive the balance (Stip. 15; Ex. 20, 21, 22).
13. Because of the three-day right of rescission on refinancing of principal residences, the loan was not due to be funded by the lender until March 27, 2000 (Stip. 16). However, the respondent’s secretary, as his agent, mailed Ms. Cruz her closing package and proceeds check by priority mail immediately after the closing on March 24 (Stip. 16; see Tr.17-21). The respondent, in essence, acknowledged his responsibility for his secretary’s actions and his failure to have appropriate procedures in place to avoid this occurrence (see Tr. 17-21, 33-35).
14. The mortgage proceeds were not wired and credited to the respondent’s IOLTA account until March 28, 2000 (Stip. 17; Ex. 19B, 23). In the interim, the respondent’s check to Ms. Cruz, no. 1317 in the amount of $13,224.63, was presented and returned unpaid on account of insufficient funds on March 27, 2000 (Stip. 17; Ex. 24). The check was redeposited and cleared on March 29, 2000 (Stip. 17; Ex. 19B).
Count Four
15. On March 29, 2000, the respondent as closing attorney represented a mortgage company as lender in a sale of real estate from Larry Loe to Charles Coe (Stip. 18; Ex. 25, 26, 27).
16. Despite instructions from the respondent to wire the proceeds to his new IOLTA account no. 270-79137, the mortgage company wired the mortgage proceeds in the amount of $236,310.15 to the respondent’s old IOLTA account, no. 137-33449 (Stip. 19; Ex. 19A, 26, 28).
17. The respondent had confirmed with the lender by telephone that the funds were wired (Tr. 30), but he closed on the loan without confirming with the bank where his IOLTA accounts were located that the funds were received into the correct account (Stip. 20). Both the check representing the mortgage payoff and the check representing the seller’s net proceeds were accordingly returned unpaid (Stip. 20; Ex. 29, 30). The respondent immediately transferred the funds to the correct account and the checks were paid upon redeposit (Stip. 20; Ex. 19B, 31).
18. The respondent received notice at the time each of the four checks was dishonored (Tr. 6, 13, 24, 30) and admits that he was notified by Bar Counsel shortly after each as well (Tr. 65).
II. Conclusions of Law
19. Bar Counsel charges that the respondent’s conduct in the above matters violated Mass. R. Prof. C. 1.15(a). Rule 1.15(a) provides:
A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the State where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of the receipt, maintenance, and disposition of such account funds and other property shall be kept by the lawyer from the time of receipt to the time of final distribution and shall be preserved for a period of six years after termination of the representation.
In essence, Bar Counsel contends, and we agree, that had the respondent timely maintained proper records with respect to each account, he would have been aware that funds had not, in fact, been received and deposited into the proper account (even if they had been wired as the lenders told him). Moreover, in Count Two, the respondent’s failure to keep adequate records resulted in his violation of the “good funds” statute, G.L. c. 183, § 63B, because he closed the loan and recorded the deed prior to receiving the mortgage proceeds. As a result of the lack of funds, an unrelated mortgage payoff check bounced, and the respondent sent a second check when he knew that he had not yet received the funds necessary to cover the check.
III. Factors in Mitigation and Aggravation
20. The respondent cooperated fully with Bar Counsel, including stipulating to almost all of the material facts involved herein. We find that the respondent has been forthcoming and truthful in his testimony. The respondent has also instituted measures to try to ensure that funds are not disbursed without ascertaining that the funds are in the proper account; these measures include calling the bank where the account is located prior to disbursement, requiring certified or bank checks for funds, and writing disbursement checks in refinancing only after expiration of the rescission period (Tr. 20, 23, 42). It is therefore unlikely that the misconduct would be repeated in the future. We, nonetheless, acknowledge that the respondent’s cooperation with Bar Counsel constitutes “typical” as opposed to “special” mitigation and does not warrant a change in sanction. Matter of Alter, 389 Mass. 153, 157 (1983). Similarly, the fact that the respondent has changed his practices to avoid future misconduct is the very change required by the rules of professional conduct, and therefore, does not alter the appropriate sanction.
IV. Recommendation for Discipline
Bar Counsel seeks an admonition. The respondent claims that his conduct did not constitute a violation of the disciplinary rules, but even if it did, does not warrant any discipline.
Standing alone, we do not believe the conduct in Counts One, Three or Four would warrant discipline. However, we are presented here with not one, but four instances, over a period of about a year, of dishonored checks from the respondent’s IOLTA account, each of which occurred because of his failure to ascertain from the appropriate bank whether funds had been received and were, in fact, available in the appropriate account. It should be noted that the respondent was informed, at the time, by Bar Counsel, of each of these dishonored check notices. Thus, the respondent engaged in a course of conduct in which he failed to properly address the problem for approximately a year. In addition, in Count Two, the respondent compounded his initial error by sending a second check when he knew that he had not received funds to cover it.
This misconduct is analogous to other cases in which an admonition has been imposed. See AD-01-77 (2001); AD-00-25 (2000); AD-99-68, 15 Mass. Att'y Disc. R. 777 (1999); AD-99-63, 15 Mass. Att'y Disc. R. 768 (1999); AD-99-50, 15 Mass. Att'y Disc. R. 742 (1999). In each of these cases, the conveyancers were found to have violated Mass. R. Prof. C. 1.15(a) because their inadequate record-keeping resulted in dishonored checks due to their failure to ascertain whether funds had been received prior to closing and disbursement. Like the instant case, in the end, minimal harm resulted; however, the conduct had the potential of causing serious harm not only to the lenders and borrowers involved in the closings but third parties, as was the case in Count Two.
We recommend that the respondent receive an admonition.
Respectfully submitted,
By the Hearing Committee,
______________________________
Michael J. Zeman, Chair
______________________________
John F. Folan
______________________________
Frances H. Rudko
Date Filed: ________________
ADMONITION NO. 02-13
Board decision (admonition), voting to adopt the board memorandum and its recommendation, entered March 13, 2002.
BOARD MEMORANDUM
George W. Coombs1 was suspended in March of 1995 for committing perjury and forging a codicil.2 It was later discovered that he had stolen more than a million dollars in trust and estate funds. The single justice's original order of suspension did not specifically direct Coombs to resign his fiduciary positions. This disciplinary matter springs from Coombs's efforts to retain control of three estates for which he was serving as a fiduciary at the time he was suspended. To do so, Coombs enlisted the aid of an old friend, the respondent. The respondent briefly represented Coombs in his capacity as executor of the estates. Later, when the single justice ordered Coombs to resign all fiduciary positions, the respondent filed an appearance as Coombs's successor fiduciary in one of the estates. In all, the respondent's involvement in the estates lasted about three months.
Bar Counsel filed a petition for discipline alleging, in essence, that the respondent acted as Coombs's straw in filing appearances as his successor in the estates. In the process, the petition charges, the respondent assisted Coombs in the unauthorized practice of law, engaged in multiple conflicts of interest, failed to undertake adequate preparation, and made intentional misrepresentations in documents filed with the court. A special hearing officer rejected most of these charges but did recommend that the respondent be admonished for inadequate preparation and making negligent misrepresentations. Bar Counsel has appealed. He asks that we make additional findings of fact, modify the conclusions of law, and recommend a two-year suspension. Oral argument was held before the full Board.
The parties do not dispute the subsidiary findings of fact made by the hearing officer. We adopt and incorporate them by reference, and we summarize his findings under each count below, reserving certain details for later discussion where appropriate. We then address Bar Counsel's requests to admit certain evidence excluded by the hearing officer and to make additional findings. After settling the facts, we proceed to consider the hearing officer's conclusions of law and recommendation for discipline.
I. Findings of Fact
A. The Hearing Officer's Findings.
At the time of the hearing the respondent was seventy-eight years old and registered as an inactive attorney. From his admission in 1951 through 1990, he was engaged in a general practice in Boston and Medfield. He was experienced in probate practice. After suffering a heart attack in 1990, the respondent closed his law office and moved to Maine, though he continued to vote in Massachusetts and spent about seven days a month at an apartment in his sister's house in Dover. He also used the offices of Coombs's firm, Coombs & Braithwaite, to receive mail, take telephone calls, and maintain a desk for when he was in town. The respondent was listed in the Lawyers Diary at the Coombs & Braithwaite address, where Coombs's daughters continued to work after Coombs's suspension.
The respondent and Coombs had been professional and social friends since the mid-1950s. The respondent had handled a number of cases referred to him by Coombs, and he knew Coombs's wife and children. Throughout their longtime friendship and up until the conclusion of the events at issue in this proceeding, the respondent believed in good faith that Coombs was an upstanding citizen of extremely high character and worthy of complete trust. The respondent knew nothing of the activities that led to Coombs's disbarment, criminal conviction, and eventual imprisonment. The hearing officer found that the respondent believed in good faith that Coombs had complied with the single justice's orders and had given notice of his suspension to all courts, clients, and parties, including the estates at issue here. Until November 1995, the respondent was not familiar with the facts that had led to Coombs's suspension, which were unrelated to these estates. In March of 1996, the respondent discovered that Coombs had been deceiving him and his clients. The respondent thereupon withdrew his appearance in the last remaining estate. He has not spoken to Coombs since.
1. Count One — The Madigan Estate. Coombs was appointed executor of the estate of Dorothy Madigan in 1989. In the fall of 1995, Cynthia Walsh, a beneficiary under a trust created by Madigan's will, filed a petition to remove Coombs as executor. The petition alleged, among other things, that Coombs had been suspended from the practice of law, had failed to file an account for the estate, and had not given her notice of a petition to sell certain real estate.
Coombs asked the respondent to represent him in opposing the petition. At some point shortly before November 1, 1995, the two men met and the respondent learned for the first time that Coombs had been suspended. In response to a query by the respondent, Coombs represented that the single justice had told him he could continue to act as a fiduciary. The respondent asked Coombs where the estate assets were and why the accounting had not been completed. Coombs told him the assets were in the Brookline Cooperative Bank and that an accountant was preparing the accounting. Coombs claimed there were no problems with the estate. At some unspecified time thereafter, the respondent reviewed the Madigan file and spoke with the accountant, who represented that the accounting would be ready in a timely fashion.
The respondent agreed to represent Coombs, but advised that he would have difficulty producing the paperwork, given how infrequently he was in Boston. Coombs assured him that his daughters would handle the paperwork as long as the respondent handled the court appearances. On November 1, 1995, he went to the office of Coombs & Braithwaite, where he met with Coombs and his daughters. There he reviewed and signed a notice of appearance and an answer to the removal petition. These documents were then filed with the court.
On December 13, 1995, the single justice ordered Coombs to resign all fiduciary positions. Either anticipating or responding to that order,3 the respondent signed a withdrawal of appearance as Coombs's counsel. Coombs told him he had spoken to Jane Hopper, a beneficiary of the estate, who had agreed to serve as its co-administrator with the respondent if he agreed to serve. The respondent agreed. He signed a notice of appearance for Hopper and petitions for their appointment as co-administrators. He also signed a letter to Hopper, enclosing one petition for her to sign and requesting that she return it for filing. She did as he asked, and the petitions were filed. All these documents were prepared and sent by the offices of Coombs & Braithwaite.
On January 4, 1996, Walsh filed an affidavit of objections to the appointment of the respondent and Hopper. She alleged that the respondent had a conflict of interest by virtue of his prior appearance as Coombs's counsel and his association with Coombs & Braithwaite, and that the respondent was not a resident of Massachusetts. Walsh also filed a competing petition for the appointment of one Warren as administrator.
On January 23, 1996, the respondent filed, on his and Hopper's behalf, an affidavit of objections to Warren's appointment. This document was prepared by the office of Coombs & Braithwaite, and the respondent did not sign it until after speaking with Coombs's daughter, who he understood had discussed it with Hopper. The hearing officer rejected Bar Counsel's allegation that this affidavit contained a number of deliberate misrepresentations, an issue to which we return below. As for the battle over the appointment of an administrator, it ended the next day, when the respondent agreed to the appointment of a disinterested third person as administrator.4
The hearing officer rejected Bar Counsel's contentions (1) that the respondent engaged in a conflict of interest in undertaking to represent Hopper and to seek appointment as a co-administrator; (2) that he prepared inadequately for those undertakings by failing to make sufficient inquiry as to the status of the estate; (3) that he permitted Coombs to prepare pleadings and other documents despite his suspension, thus assisting him in the unauthorized practice of law; and (4) that he made deliberately false or misleading statements under oath in his affidavit of objections to the appointment of Warren as administrator. The hearing officer did find that some of the representations in the affidavit were unintentionally misleading, in violation of Canon One, DR 1-102(A)(5) and (6).
2. Count Two — The Cormier Estate. In 1994 Carol Winter and Coombs were appointed co-executors of the estate of Mary Patricia Ann Cormier. In late October of 1995, seven months after Coombs's suspension, Coombs and Winter filed an inventory and a first and final account of the Cormier estate. In early December, Coombs visited the respondent at his home in Maine and asked him to file an appearance on his behalf in the Cormier estate and in the Duggan estates (the subject of the third count of Bar Counsel's petition for discipline). Coombs had brought with him an appearance slip for the Cormier estate, for which he wanted the respondent to seek allowance of the account. The respondent signed the slip, indicating his appearance for Coombs and Winter, whom Coombs identified as his co-executor. An experienced probate practitioner, the respondent intended to take the necessary actions to handle the matter.
On December 13, 1995, the respondent signed a letter to Winter and Coombs, addressed to Winter, which had been prepared by Coombs & Braithwaite and mailed to him in Maine. The letter stated the respondent's intention to file an appearance in the estate case on Winter's behalf "[p]ursuant to my conversation with Mr. Coombs . . . ." This letter, like all correspondence he signed in connection with the Cormier estate, was then returned to Coombs & Braithwaite for mailing. Unbeknownst to the respondent, the letter never reached Winter, and the implication is that it was never mailed. Similar procedures governed other letters he signed in connection with the Cormier estate, including one offering to withdraw his appearance on her behalf and one reporting his intention to do so to her counsel, who filed an appearance on January 19, 1996.
The respondent's withdrawals of appearance for Coombs and Winter were filed on January 17 and February 12, 1996, respectively. During the month and a half in which the respondent had an appearance on file in the Cormier estate—that is, between December 28, 1995, and February 12, 1996—no citation issued on the first and final account.
Bar Counsel charged the respondent with the same misconduct as that alleged in connection with the Madigan estate (but without a claim that he had made false representations in an affidavit). The hearing officer rejected all of them.
3. Count Three — The Duggan Estate. Coombs and Patricia Burrow were appointed co-executors of the estate of Josephine Duggan in 1994. In early December 1995, at the same time he brought an appearance slip for the Cormier estate for the respondent to sign, Coombs brought an undated appearance slip for the Duggan estate. The Duggan estate, he said, was another unfinished probate estate in connection with which he wanted the respondent to represent him. The respondent agreed and signed the appearance slip. As with the other two estates, the respondent intended to take the necessary actions to handle the matter.
On December 26, 1995, Coombs filed his resignation as executor of the Duggan estate. The resignation was dated December 20, 1995, and listed the respondent as attorney for the petitioner. On January 26, 1996, Coombs & Braithwaite filed the appearance slip the respondent had signed in early December. The slip was dated December 19th and purported to be an appearance on behalf of both Coombs and Burrow. Burrow's name had been added to it after the respondent had signed it.
Sometime after the appearance slip was filed, Bar Counsel notified the respondent that Burrow had complained to the OBC that she had never authorized him to appear on her behalf. The respondent, who had never spoken to Burrow or even heard of her, was upset. He called Coombs. Coombs told him Burrow's name had been mistakenly added to the appearance slip. When the respondent told him to straighten it out, Coombs & Braithwaite prepared a withdrawal of appearance and an affidavit stating that Burrow's name had been typed on the appearance slip through "mistake, inadvertence and error," and that the respondent had not intended to appear on her behalf. The respondent signed the withdrawal and the affidavit, both of which were filed on March 4, 1996.
The hearing officer rejected Bar Counsel's allegations that the respondent's conduct in connection with the Duggan estate constituted the same misconduct alleged, and violated the same rules charged, in connection with the Cormier estate. The hearing officer did find that the respondent's failure to know that Burrow was a co-executor of the Duggan estate constituted inadequate preparation in violation of Canon Six, DR 6-101(A)(2).
4. Findings in Mitigation and Aggravation. In mitigation of the respondent's misconduct, the hearing officer found that he had a stellar military record, had served as a state representative, had been active in community affairs, had no disciplinary history, and caused no harm or prejudice through his misconduct. With the possible exception of his military record, see Matter of Bedinger, 10 Mass. Att’y Disc. R. 12, 13 (1994), these factors constitute "typical" mitigating circumstances that are given little weight in choosing an appropriate sanction. See, e.g., Matter of Alter, 389 Mass. 153, 156, 3 Mass. Att’y Disc. R. 3, 6-7 (1983). In addition, the hearing officer found that the respondent did not profit from his services in connection with any of the three estates, and that he expressed credible remorse for his conduct.
The hearing officer declined Bar Counsel's request that he find, as an aggravating circumstance, that the respondent had made intentional misrepresentations to the court in signing the affidavit supporting the withdrawal of his appearance for Burrow.
B. Bar Counsel's Appeal from the Findings of Fact.
Bar Counsel contends that the hearing officer erred in refusing to accept into evidence documents from the Clients’ Security Board and from two criminal cases against George Coombs. The documents, marked A through G for identification, evidence Coombs's embezzlement of almost $400,000 from the Madigan and Duggan estates. The parties stipulated to the authenticity of the documents, and we agree with Bar Counsel that they constitute "the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs." G.L. c. 30A, § 11(2). See Rules of the Board of Bar Overseers, Section 3.39 ("admissibility of evidence shall be governed by the Rules of Evidence observed in adjudicatory proceedings under Chapter 30A"). The parties dispute whether the evidence is relevant to any issue before the hearing officer and, if so, whether its prejudicial impact substantially outweighs its probative value. We discern no abuse of discretion in refusing to admit the exhibits.
Bar Counsel offered the evidence solely to show that the conflicts of interest alleged were "more than hypothetical." The respondent views the exhibits as inflammatory and unfairly prejudicial, because the dates of Coombs's thieving cannot be determined and there is no evidence whatsoever that the respondent's fleeting involvement with the estates contributed to the losses.
There is something a bit otherworldly about this dispute. As a practical matter, on the one hand, it is evident that the hearing officer was aware, as are we now, that Coombs caused great harm to the Madigan and Duggan estates. To admit these exhibits at this stage would change nothing. As a doctrinal matter, on the other hand, Bar Counsel does not need to demonstrate that a conflict is "more than hypothetical" to prevail on a charge brought under Canon Five. That canon defines violations in accordance with its own terms and without reference to words like "real" or "hypothetical"— or even a requirement that any harm flow from the conflict. Further, as discussed below, we find that the respondent did engage in conflicts of interest in violation of the disciplinary rules with regard to the Madigan and Duggan estates. This effectively moots the issue. Given all these circumstances, we will not disturb the hearing officer's decision not to admit the exhibits.5
III. Conclusions of Law
Bar Counsel objects to a number of the hearing officer's conclusions of law. We have considered all these objections and discuss below those that merit fuller treatment.
A. Conflicts of Interest.
The hearing officer erred in rejecting charges that the respondent engaged in a conflict of interest in violation of Canon Five by seeking to serve as Coombs's successor fiduciary in the Madigan estate and by representing him in the Duggan and Cormier estates.
In November 1995, the respondent undertook to represent Coombs in opposing the petition to remove him as executor of the Madigan estate. A month later Coombs became an ex-client in that matter when he withdrew as executor in response to an order by the single justice. The respondent thereupon undertook to represent himself and Hopper in a petition to become the estate's successor fiduciaries. In deciding whether that new undertaking posed a conflict of interest, we must decide whether the new representation was "adverse" to Coombs and whether the matters of the two representations were "substantially related." Adoption of Erica, 426 Mass. 55, 61 (1997). A substantial relationship is obvious here: this was the very same matter. As to adversity, it is self-evident that the successor fiduciary's principal task would be to extract an accounting from Coombs, whose failure to file one during his six years as executor had triggered the petition to remove him in the first place. That made him an adverse party to the estate. The respondent, therefore, engaged in a conflict of interest with regard to the Madigan estate.
The hearing officer found that the respondent had no reason to believe there was a conflict because, based on what Coombs and his accountant had told him, the respondent reasonably believed an accounting would be forthcoming without difficulty. However reasonable that belief might have been, it does not alter the fact that the fiduciary position he sought was adverse to Coombs, a former client, and that it was the same matter. The adversity raised a conflict of interest. That he expected the issues to be resolved without problems does not dispense with the conflict any more than would an expectation that a lawyer would act only as scrivener on behalf of both parties to a divorce, see Matter of Frank, 8 Mass. Att’y Disc. R. 85 (1992), or on behalf of both borrower and lender at a real estate closing. See MBA Op. 90-3. We need not decide whether such a belief might make this successive conflict waivable under certain circumstances; there is no evidence that the respondent sought consent after full disclosure of the risks involved from Hopper or even Coombs. See Matter of Soutter, S.J.C. No. BD-2001-053, Memorandum at 7 (October 12, 2001); id., Board Memorandum at 10-11.
While the respondent engaged in a successive conflict interest by his undertaking in the Madigan estate, he was at the same time continuing to represent Coombs in the Duggan and Cormier estates. If, as we have found, the respondent had undertaken a matter adverse to Coombs in one estate (Madigan), it follows that it was inappropriate to continue thereafter to represent Coombs in the other two estates. A lawyer may not represent a client in one matter (Duggan and Cormier) while simultaneously assuming a representation adverse to the client in another matter (Madigan/Hopper). Again, assuming without deciding that a knowing waiver by Hopper would cure the conflict (an issue on which we harbor grave doubts), there is no evidence that the respondent ever sought or obtained one. See Matter of Eisenhauer, 426 Mass. 448, 452, 14 Mass. Att’y Disc. R. 251, 256 (1998) (“In a disciplinary hearing, the respondent must prove that the client’s consent [to a conflict of interest] was obtained after full disclosure of the conflict.”).
Accordingly, we modify the hearing officer's conclusions of law to find that the respondent violated Canon Five, DR 5-105(A), by undertaking to seek successor fiduciary appointments for himself and Hopper in the Madigan estate, and by continuing thereafter to represent Coombs in the Duggan and Cormier estates.
There was yet another disabling conflict in the respondent's close personal relationship with Coombs. The two had been friends for thirty years, and the respondent was even using Coombs's "former" offices as the locus of his practice while in Massachusetts. To undertake a fiduciary position adverse to his old and close friend posed a personal conflict that was likely to interfere with his independent judgment on behalf of his client Hopper and the Madigan estate of which he sought to be a fiduciary. Again, there is no evidence that he made disclosure to Hopper or otherwise sought to obtain a waiver of the personal conflict. Such conduct was in violation of Canon Five, DR 5-101(A). We modify the hearing officer's conclusions of law to add the finding.
B. False Affidavit.
On January 23, 1996, the respondent filed an affidavit of objections to Warren's appointment to succeed Coombs as fiduciary of the Madigan estate. The special hearing officer found that some of the respondent's statements in the affidavit "may have been misleading" and thus violated Canon One, DR 1-102(A)(5) & (6) (conduct prejudicial to the administration of justice and reflecting adversely on fitness to practice). The hearing officer rejected the claim that the statements violated DR 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation) because he found they were not intentionally false. See, e.g., Matter of Provanzano, 5 Mass. Att’y Disc. R. 300, 302 (1987) (no violation of DR 1-102(A)(4) absent intent to deceive). Bar Counsel contends that two of the statements in the affidavit are "flat-out false" and compel the conclusion that DR 1-102(A)(4) was violated. Having examined the two statements and the record of the circumstances surrounding them, we are not convinced there was any intentional misrepresentation in either instance.
1. The affidavit purports to state, under oath through the respondent, the objections of Hopper and the respondent to Warren's appointment:
Now comes Janet Gaddes Hopper, individually, as an heir-at-law and as legatee under the will of the decedent Dorothy Olive Madigan, and [the respondent], an attorney and resident agent of Janet Gaddes Hopper[,] and states by her attorney, under the pains and penalties of perjury, as being her objections to the appointment of William C. Warren . . . .
(Ex. 18, at 1). Because the respondent in fact had never communicated with Hopper concerning the document, Bar Counsel contends that the claim to speak on her behalf was a knowing misrepresentation made under oath. The hearing officer found, however, that the respondent reasonably believed (1) that Coombs's daughter had spoken to Hopper, (2) that one of Coombs's daughters had drafted the affidavit, and (3) that Hopper had authorized him to file the objection on her behalf as well as her own. If we accept that finding—as we must, since it is based on a credibility determination within the sole province of the hearing officer, see S.J.C. Rule 4:01, § 8(4)—it was reasonable to infer that the respondent did not knowingly misrepresent his authority to speak on her behalf.
2. Bar Counsel also claims that the affidavit falsely states that the respondent had previously represented the decedent when in fact he "knew when he signed the document that he did not recollect ever representing Ms. Madigan for Coombs's office and was not sure if the statement was true." Bar Counsel's Brief on Appeal at 22. This slightly overstates the record. His actual testimony was as follows:
Q. You go on to say [in the affidavit that you] represented the Decedent Dorothy Olive Madigan during her lifetime. Was that true?
A. As far as I can recall, I had something to do with her. I don't know specifically. I told you earlier I had handled many cases over the years for Mr. Coombs's office. I had some divorce work. I had some probate work, some closings, and I had other cases for him and I said, Well, all right. That must be one of the other cases. I don't remember —
Q. Did you ask? Before you signed this did you say to Mr. Coombs to [his daughter], to anyone, I don't remember representing Dorothy Olive Madigan during her lifetime?
A. No, I didn't ask.
Q. So you signed this and you don't know whether you represented her or not?
A. I can't say for certain.
(Tr. 95-96). There is some ambiguity in the testimony as to whether, and to what extent, the respondent was describing his present memory or his recollection at the time he signed the affidavit. (See also Tr. 196). Even if we assume the latter, however, this falls far short of a conscious effort to deceive anyone. When he read the draft affidavit, the respondent assumed, based on past experience, that Madigan was a former client. He should have confirmed this. He did not. His failure to do so led him to make negligent misrepresentations in violation of DR 1-102(A)(5) and (6), as the hearing officer found, but it does not rise to the level of an intentional misrepresentation violative of DR 1-102(A)(4). There was no error.
B. Other Issues.
Bar Counsel's other objections to the hearing officer's conclusions of law do not merit extensive discussion. The filing of a notice of appearance as counsel for Coombs in the Cormier estate without inquiring whether Coombs yet had complied with the single justice's order to resign the position did not violate a disciplinary rule: the respondent had no reason to believe Coombs would not comply, as he did in less than a month, and Coombs in any event was entitled to representation concerning the filing of an account, an obligation that survived his resignation as fiduciary. We also reject the contention that the respondent knowingly assisted Coombs in the unauthorized practice of law. The claim is bottomed on Bar Counsel's insistence that the respondent acted as Coombs's "straw" to permit him to retain control of all three estates, a characterization we reject, as discussed below. Finally, we do not agree that the respondent deliberately lied in an affidavit when he characterized as "mistake, inadvertence or error" the addition by Coombs's office of Burrow's name to a notice of appearance the respondent had already signed; the hearing officer credited the respondent's testimony that he believed Coombs's explanation that Burrow's name had been added by mistake.
IV. The Appropriate Sanction
The hearing officer's report, as now modified, indicates that the respondent engaged in conflicts of interest, made negligent misrepresentations in an affidavit, and prepared inadequately when he failed to determine that Burrow was a co-executor of the Duggan estate. Because, like the hearing officer, we have rejected the more serious charges, such as making intentional misrepresentations under oath and intentionally assisting in the unauthorized practice of law, this is not a case for suspension.
In conflicts cases, suspension has been reserved for conduct involving self-dealing, see e.g., Matter of Pike, 408 Mass. 740, 6 Mass. Att’y Disc. R. 256 (1990); Matter of Wise, 433 Mass. 80, 16 Mass. Att’y Disc. R. 416 (2000), or egregious conflicts causing substantial injury to clients or innocent third parties. See, e.g., Matter of Tobin, 7 Mass. Att’y Disc. R. 290 (1991). Otherwise, public discipline will be imposed if harm results from an obvious conflict. See, e.g., Matter of Frank, 8 Mass. Att’y Disc. R. 85 (1992) (public censure for representing husband and wife in divorce proceedings; both parties represented inadequately and husband worked fraud on court). Here there is no evidence that Coombs looted any of these estates during the very brief period of the respondent's involvement. In the absence of proof of any actual harm to the estates, an admonition is the appropriate sanction for engaging in these conflicts. See, e.g., Matter of Lake, 428 Mass. 440, 14 Mass. Att’y Disc. R. 418 (1998) (lawyer admonished for representing estate while serving as broker selling its real property without its informed consent).
Similarly, it is plain that, but for the conflicts of interest, no sanction greater than admonition would be appropriate for the negligent misrepresentations and inadequate preparation. See, e.g., AD 99-41, 15 Mass. Att’y Disc. R. 723 (1999). The question then becomes whether, after weighing the cumulative force of the two sorts of misconduct, public or private discipline should be imposed. See Matter of Saab, 406 Mass. 315, 327, 6 Mass. Att’y Disc. R. 278, 291 (1989).
Although the question is a close one, we believe admonition is the appropriate sanction. We do not accept Bar Counsel's suggestion that the respondent acted as Coombs's "straw." The respondent was as much a victim of Coombs's conniving as those whose funds he pilfered. Coombs traded on his longstanding personal and professional relationship with the respondent, kept him in the dark about the estates, and misused an old friend in an effort to maintain control of the estates and hide his defalcations. So viewed, the respondent was Coombs's dupe, not his straw. As a consequence, the respondent's retirement has been disfigured by his involvement with the trusts and in these disciplinary proceedings.
In the end, the respondent assumed positions with regard to these estates for an extremely short period of time, during which he did next to nothing, and as a result of which no one was harmed. Under all these circumstances, we believe the admonition recommended by the hearing officer is appropriate.
V. Conclusion
For all of the foregoing reasons, we adopt the special hearing officer's findings of fact, modify his conclusions of law as set out above, and impose an admonition.
Respectfully submitted,
THE BOARD OF BAR OVERSEERS
By: ___________________________
Elizabeth N. Mulvey
Secretary
Approved: February 11, 2002
ADMONITION NO. 02-14
CLASSIFICATIONS:
Handling Legal Matter when not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failure to Seek the Lawful Objectives of the Client [Mass. R. Prof. C. 1.2(a)]
Conduct Involving Misrepresentation [Mass. R. Prof. C. 8.4(c)]
SUMMARY:
In June 1999, the respondent was consulted concerning the filing of a Chapter 13 bankruptcy petition. The clients’ primary financial problem was a judgment and execution entered against them in 1995 for $65,000. The clients decided against filing for bankruptcy and instead asked the respondent to remove the judgment against them by negotiating a settlement with the judgment creditor.
In August 1999, the judgment creditor, who lived in Florida, agreed with the respondent to settle the matter for $3,000. On September 2, 1999, the respondent sent the settlement proceeds to the creditor. In October 1999, at the creditor’s request, the respondent’s office sent a release to the creditor in Florida with a request that he sign the release in front of a notary. The creditor returned the signed release to the respondent, but he had not had his signature notarized. The respondent called the creditor, who confirmed over the telephone that the signature was his. The respondent then signed the jurat on the release stating that the creditor had “appeared before [the respondent]…and acknowledged the foregoing to be [his] free act and deed[.]” The respondent sent a copy of the release to his clients, but he did not take any action of substance to remove the outstanding judgment and execution.
In February 2001, the clients obtained their credit reports, which showed the outstanding judgment. One of the clients learned from the court clerk that it would be necessary to file a motion to dismiss in order to close the matter.
On April 23, 2001, the clients contacted the respondent, who agreed to take action to file a motion to dismiss. A month later, the respondent sent the creditor a motion to dismiss with a request that the creditor assent to the motion. The creditor had since moved, and the letter was returned. The respondent obtained the creditor’s correct address and resent the motion on two or three occasions, but he did not receive a reply. The respondent took no further action of substance to dismiss the judgment.
In December 2001, the clients and the creditor spoke directly by telephone. The creditor signed the assent on the motion to dismiss and mailed it to the clients, who then forwarded the motion to the respondent. The respondent signed the motion, returned it to the clients, who filed it with the court. The case was dismissed at the end of December 2001.
The respondent’s conduct in signing a false jurat violated Mass. R. Prof. C. 8.4(c). The respondent’s failure promptly to secure dismissal of the judgment violated Mass. R. Prof. C. 1.1 and Mass. R. Prof. C. 1.2(a).
The respondent received an admonition for the above violations, conditioned upon attendance at a CLE course designated by bar counsel.
ADMONITION NO. 02-15
CLASSIFICATION:
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]
SUMMARY:
In March 2000 the respondent was retained to represent a client charged with OUI liquor and leaving the scene of property damage. The respondent agreed to represent the client on a flat fee basis at arraignment and at trial. On March 14, 2000 the respondent represented the client at arraignment and then commenced to investigate the circumstances leading to his client’s arrest and the booking procedure.
In January 2001, prior to his client’s scheduled trial date, the respondent found employment unrelated to the practice of law. The respondent notified his client of his inability to continue to represent him. The client retained successor counsel prior to trial, scheduled for April 2001. At trial, the client pled guilty.
At various times beginning in January 2001, the client demanded return of his entire flat fee. On April 23, 2001 the respondent replied and stated that he had performed services and was entitled to a portion of the fee paid. He invited the client to call and discuss the matter. The client conceded that the respondent had done some work and was entitled to compensation. He then made demand for return of a specific amount. The respondent did not respond to this correspondence, resulting in a complaint to Bar Counsel.
After the client complained to Bar Counsel, the respondent provided an itemization of his time and calculated the fair value of his services prior to his withdrawal. The amount claimed was approximately the same as the client’s calculation and was agreeable to the client. On December 3, 2001 the respondent informed Bar Counsel that he would tender the balance due. However, the respondent did not refund the agreed-upon sum until mid February 2002.
The respondent’s conduct in failing to timely account for and return the advance payment of the fee that had not been earned was in violation of Mass. R. Prof. C. 1.16(d).
The respondent was admitted in 1990 and has been on inactive status since May 2001. The respondent, who has a prior admonition for unrelated conduct, received an admonition in this matter.
ADMONITION NO. 02-16
CLASSIFICATION:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)]
SUMMARY:
In 2001, the respondent was engaged in a law practice which concentrated in prosecution of appeals from denials of Social Security Disability claims. The respondent’s clients resided throughout the United States and expected to communicate with him by mail, e-mail, and telephone. The respondent customarily sent his clients copies of pleadings which he filed on their behalf, particularly the claims of appeal and requests for hearing by which their appeals were instituted.
In approximately the beginning of May, 2001, three separate clients who had expected to receive copies of requests for hearing each attempted to contact the respondent to discover why they had not received the copies. The respondent failed to respond to any of their numerous attempts to contact him by telephone, mail, and e-mail between May and October, 2001. In October, each of the clients filed a complaint with Bar Counsel. After being contacted by Bar Counsel, the respondent communicated with each of the complaining clients, provided copies of the requests for hearing, and provided further information about their cases.
The respondent’s failure to keep his clients reasonably informed about the status of their appeals and to comply promptly with their reasonable requests for information violated Mass. R. Prof. C. 1.4(a).
In mitigation, the respondent underwent emergency surgery in April, 2001. He had a slow recovery which left him in a fatigued condition for months.
ADMONITION NO. 02-17
CLASSIFICATION:
Conduct Prejudicial to the Administration of Justice [Mass. R. Prof. C. 8.4(d)]
SUMMARY:
In November 2000, the respondent was sanctioned by the Superior Court Department for improper ex parte informal communication with the opposing party’s expert witness prior to trial. The circumstances leading to the sanction are as follows.
The respondent represented a defendant supermarket in a slip and fall case pending in the Superior Court Department. The respondent supervised a recently admitted associate attorney in connection with the litigation.
In pretrial procedure, the plaintiff’s former treating physician was designated as a potential expert witness for the plaintiff. The same physician was also designated as a potential fact witness for the defense. In December 1999 the defendant was obligated by court order to provide the date of birth and social security number of all of its witnesses, including the physician, to the plaintiff to enable the plaintiff to conduct a Criminal Offender Record Information (CORI) check. On January 12, 2000, the respondent drafted and caused to be sent to the physician a letter asking for the physician’s social security number and date of birth.
On January 14, 2000, the physician called the respondent’s office in response to the January 12, 2000 letter. The respondent’s associate answered the call. The physician then proceeded to volunteer disparaging information about the plaintiff including that the plaintiff had repeatedly lied to him about her drug use and that her injuries were common for a person of her age and medical history.
On April 4, 2000 the firm mailed a letter to the physician. The respondent, as the senior attorney in charge of the case, was responsible for the content of the letter. The letter purported to confirm the contents of the phone conversation and invited the physician to testify as an expert witness for the defense.
On May 8, 2000, the physician, through his attorney, notified the respondent and the plaintiff that he would not testify for either side in the case. As a result of that notification, the plaintiff immediately filed a motion for sanctions against the respondent and his associate.
The Superior Court found that the firm’s communications with the opposing party’s designated expert prior to trial induced, or at least encouraged, the physician to reveal private medical information relating to his patient. The conduct described was prejudicial to the administration of justice in violation of Mass. R. Prof. C. 8.4(d).
The respondent was admitted in 1967 and has no prior discipline. The respondent received an admonition.
ADMONITION NO. 02-18
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)]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, § 3]
SUMMARY:
This matter came to Bar Counsel’s attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt of notice of two dishonored checks drawn on an account entitled “escrow account”. One check was in the amount of $16,734.00 and the second in the amount of $8,444.64. The checks in question represented disbursements in connection with a real estate closing transaction in which the respondent represented the lender.
The account in question was used exclusively for real estate conveyancing. The account was not an IOLTA account but was used for multiple lenders. It was therefore not a “conveyancing account” within the meaning of Mass. R. Prof. C. 1.15(e) and was required to be an IOLTA account.
The checks were dishonored because a check deposited on the day of the transaction used to partially fund the loan transaction contained a faulty endorsement. The respondent issued the disbursement checks and went to record without verifying receipt of good funds, in violation of the “good funds statute”, G.L. c. 183, § 63B. The respondent’s conduct in this regard was 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 her appearance. Her conduct in this respect is in violation of S.J.C. Rule 4:01, § 3 and Mass. R. Prof. C. 8.4(g).
The respondent has now ceased using the account and has opened an IOLTA account for her conveyancing work. She accordingly received an admonition, conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 02-19
CLASSIFICATION:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
SUMMARY:
The respondent is counsel to the executor of the estate of a Massachusetts resident who died in 1998. The decedent’s principal asset was real estate in Connecticut. The property was sold in July 1999 and the proceeds were remitted to the respondent by Connecticut counsel, at which time the respondent made a substantial partial distribution to the residuary beneficiaries. Additional escrowed funds were remitted to the respondent in the spring of 2000. Thereafter, and despite repeated requests from one of the heirs and the heir’s local counsel, the respondent took no action to conclude the administration of the estate, and make final distributions, until after a complaint was filed with Bar Counsel in October 2001.
In mitigation, the respondent had surgery in the spring of 2000 and did not return to work until July 2000. He is a solo practitioner and his absence from the office put him behind in his work. After the complaint was filed with Bar Counsel, the respondent apologized to the heir and took steps to close the estate. He has now prepared and caused the executor’s first and final account to be filed and has made final distributions to the beneficiaries.
The respondent’s conduct in this matter was in violation of Mass. R. Prof. C. 1.3. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 02-20
CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 (3)]
SUMMARY:
A defendant was serving a federal prison sentence for re-entry into the country after being deported. On or about December 10, 1999, he hired the respondent’s partner to represent him in vacating his guilty plea on several district court matters which had been the primary reason for his deportation. The defendant paid $2500 toward a $3500 agreed flat fee.
In or around March of 2000, the defendant contacted the respondent and explained that he was having difficulty contacting the respondent’s partner and that he was unhappy with the representation that he was receiving. After discussing the matter with his partner, the respondent agreed to take over the case and to file a motion for new trial on behalf of the defendant.
The respondent subsequently learned that the defendant had filed four previous motions for new trial and all four had been denied. He also learned that the defendant had appealed the denial of his most recent motion and that the appeal had been dismissed in February 2000 when no brief was filed. In all of the motions, the defendant argued that the court had failed to give him “the alien warning” required by M.G.L. c. 278 § 29D, meaning that the court did not advise him that his plea could affect his immigration status. The motion for new trial that the respondent intended to file on behalf of the defendant would have been based on the defendant's belief that the clerk's office made docket entries with the alien warnings after the date of the conviction. Thus, in the respondent’s view, the new motion would have rendered the defendant’s appeal moot.
The defendant filed a grievance against the respondent at the Office of Bar Counsel in late April 2000, because the respondent had not yet filed the motion for new trial. The respondent failed to timely reply to Bar Counsel’s requests for information, necessitating the issuance of a subpoena for his appearance at the Office of Bar Counsel.
By September 2000, the respondent still had not filed the motion for new trial. At that point, he contacted the defendant to determine whether he wanted the respondent to continue the representation. In October, 2000, the defendant terminated the respondent’s services. The respondent refunded the entire legal fee to the defendant on December 8, 2000.
The respondent’s failure to promptly file a motion for new trial on behalf of the defendant was in violation of Mass. R. Prof. C. 1.3. His failure to cooperate with Bar Counsel’s investigation was in violation of Supreme Judicial Court Rule 4:01, Section 3 and Mass. R. Prof. C. 8.4(g).
In mitigation, the respondent was under a great deal of stress from March through September 2000. His law partnership dissolved and he was left with a large caseload and a heavy court schedule. His office was burglarized and his computer was stolen. His brother was diagnosed with a terminal illness, and his wife gave birth to his first child. These problems greatly affected the respondent’s ability to keep up with his law practice.
The respondent has been a member of the bar since 1990 and has no prior discipline. He received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 02-21
CLASSIFICATION:
Conduct Involving a Misrepresentation [ DR 1-102(A)(4) ]
SUMMARY:
In December 1996 the respondent notarized the signature of his client on a petition filed in the Land Court in order to obtain a new owner’s certificate of title to registered land. The client was not present before him when the document was notarized. The client was aware of the contents of the petition and either signed the petition himself or authorized his brother to sign the petition on his behalf.
The matter came to Bar Counsel’s attention in January 2002 only as a result of a complaint filed by another brother with whom the client had been engaged in litigation over disposition of the father’s estate.
The respondent’s conduct in notarizing the signature of a person who was not present before him violated Canon One, DR 1-102(A)(4), which prohibits a lawyer from engaging in conduct involving a misrepresentation.
The respondent was admitted in 1972 and has no prior discipline. The respondent received an admonition conditioned upon his attendance at a CLE course desiganted by Bar Counsel.
ADMONITION NO. 02-22
CLASSIFICATIONS:
Neglecting a Client [DR 6-101(A)(3)]
Failure to Represent a Client Zealously [DR 7-101(a)(1) and (2)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
SUMMARY:
A debtor filed a Chapter 7 bankruptcy petition in Bankruptcy Court in Illinois in March 1994. Just prior to the filing of the petition, the debtor’s mother, a Massachusetts resident, died, leaving the debtor and two siblings. The decedent’s entire estate consisted of approximately $7000 held in a Veteran’s Administration account. Pursuant to 11 USCS § 541(5) (A), the bankruptcy estate became the successor in interest to the debtor’s one third share in her mother’s probate estate.
The debtor contacted the respondent, a family friend, and asked him to handle her mother’s estate. There was no fee agreement and the respondent received no payment. The respondent suggested that the debtor’s sister, a Massachusetts resident, be appointed administrator of the estate in order to save expenses, but the debtor and her sister did not agree. Thus, the respondent took no action on the matter.
The Trustee in Bankruptcy contacted the respondent some time in March 1994, to confirm that he was handling the mother’s estate. The Trustee made several unsuccessful attempts to contact the respondent between February 1997 and July 1999, at which time he subpoenaed the respondent’s records. The respondent answered the subpoena on July 9, 1999. Shortly thereafter, the respondent convinced the debtor’s sister to act as administrator of the estate and filed the petition for administration in August 1999. The respondent received the funds from the Veteran’s Administration account in September 1999, and deposited them into his IOLTA account. He contacted the debtor’s sister in October 1999, to determine the amount of the funeral expenses so that he could file the final account for the decedent’s estate. However, she was unable to locate the bill until August 24, 2000. The respondent then promptly prepared an accounting and sent a copy of it to the debtor’s sister, who authorized the respondent to distribute the funds. The respondent sent the Trustee’s attorney a check for the debtor’s share of her mother’s estate on September 6, 2000.
The respondent’s failure to take any action to probate the debtor’s mother’s estate from 1994 until 1999 constituted neglect and failure to act diligently in violation of Canon Six, DR 6-101(a)(3), Canon Seven, DR 7-101(a)(1)and (2), and Mass. R. Prof. C. 1.3.
The respondent has been a member of the bar since 1972. He received an admonition for neglect of two matters in August 2000. Although the respondent has a prior history of discipline, the misconduct in the instant case pre-dates the admonition In further mitigation, there was no ultimate harm to the respondent’s clients. Accordingly, the respondent received an admonition for his conduct in this matter.
ADMONITION NO. 02-23
CLASSIFICATION:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
SUMMARY:
This matter came to Bar Counsel’s attention as the result of the respondent’s attempt to pay his annual registration fees to the Board of Bar Overseers with a check drawn on his IOLTA account. The use of the IOLTA account to pay a personal obligation was in fact an isolated error during a very stressful time period.
However, a review of the records of the respondent’s trust account showed that the respondent routinely deposited earned fees to the trust account and that he disbursed the deposited funds to his professional corporation from the IOLTA account. This conduct constitutes commingling business or personal funds in a trust account, in violation of Mass. R. Prof. C. 1.15(a). The respondent accordingly received an admonition, conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 02-24
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)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)(2)]
SUMMARY:
This matter came to Bar Counsel’s attention as the result of Bar Counsel’s receipt pursuant to Mass. R. Prof. C. 1.15(f) of a notice of dishonored check from a bank in which the respondent maintained an IOLTA account. The check in question was for $1,044.27 and payment would have caused an overdraft of $729.85.
The IOLTA account was properly used by the respondent for conveyancing. However, instead of promptly withdrawing his earned fees for title insurance, the respondent withdrew these fees periodically and piecemeal. This conduct constitutes commingling, in violation of Mass. R. Prof. C. 1.15(a) and 1.15(d)(2).
In addition, the respondent did not maintain an adequate check register or individual client ledgers. The dishonored check occurred when the respondent negligently paid certain expenses from a closing prior to making the deposit supporting these disbursements. This error caused an unrelated check for $1,044.27 to be returned unpaid. The respondent corrected the problem and immediately issued a new check to the payee. The respondent’s conduct in this respect constituted inadequate record keeping, in violation of Mass. R. Prof. C. 1.15(a)
The respondent has a prior admonition from 1998. He received an admonition on the current matter, conditioned upon satisfactory completion of a one-year financial probation agreement.
ADMONITION NO. 02-25
CLASSIFICATIONS:
Handling Legal Matter when not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Client's Lawful Objectives or Abide by Client's Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Communicate with Client [Mass. R. Prof.C.1.4)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16 (e)(1)]
SUMMARY:
In September, 1998, the client was living in a residential non-profit treatment program ("the program"). In conjunction with the program, on September 3, 1998, the client was assigned to wash windows at the home of an elderly resident of the town in which the program was located. While washing a window, a pane shattered and the client suffered a serious injury to his arm. He was treated at a medical center, and incurred a substantial medical bill.
On September 8, the client engaged the respondent to pursue a potential personal injury action against the program and the homeowner. The client signed a contingent fee agreement and gave the respondent copies of some of his medical records.
In October, 1998, the respondent sent letters to the program and the homeowner requesting information about the existence of liability insurance. He also visited the home where the injury occurred, and concluded that the accident had not resulted from negligence by the homeowner. The respondent did not receive responses to either of his letters. The respondent did not inform the client of his conclusions, and he took no further action to determine whether the client had any viable cause of action against the program.
During 2000 and 2001, the client wrote several letters to respondent seeking to learn the status of his case, to which the respondent did not respond. In August, 2001, the client was incarcerated. While incarcerated the client attempted to place collect telephone calls to the respondent, but his calls were not accepted. The client also requested that the respondent return his file, but the respondent delayed doing so until November, 2001.
By failing to be reasonably diligent in investigating his client's case, the respondent violated Massachusetts Rule of Professional Conduct 1.1, 1.2(a) and 1.3.
By failing to keep the client reasonably informed about the status of his case, and by failing to respond to the client 's requests for information, the respondent violated Massachusetts Rule of Professional Conduct 1.4.
By failing to return the client 's file within a reasonable time period after the client requested he do so, the respondent violated Massachusetts Rule of Professional Conduct, 1.16 (e)(1).
The respondent received an admonition for his conduct on condition that he attend a CLE program designated by Bar Counsel.
ADMONITION NO. 02-26
CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Inadequate Client Communication [Mass. R. Prof. C. 1.4]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4 (g) and S.J.C. Rule 4:01 § 3]
SUMMARY:
In January 1997 the respondent was retained by a Rhode Island resident to represent a client in a breach of contract claim against a Massachusetts insurance company, a Rhode Island insurance agency, and its agent. The client alleged that in March 1995, he leased a vehicle in California and was promised by the agent that the vehicle would be covered by a policy of insurance issued by the Massachusetts company. On October 7, 1995, the client was involved in a motor vehicle accident in California and the insurance carrier denied coverage. As a result of the denial of coverage and the client’s failure to post “financial security” for the accident, the State of California suspended the client’s right to operate a motor vehicle in that state. A year, later the client regained his driver’s license by paying approximately $6,000.00 in damages.
By June 1998, the respondent had drafted a civil complaint and a clerk cover sheet for filing in the U.S. District Court, District of Massachusetts. The respondent named the Massachusetts insurance company as a defendant, despite questionable liability. The respondent also included a count under G.L. c. 93A against the Rhode Island agency, although he had not drafted or served any 93A demand for relief.
The respondent intended to file the complaint and request an ex parte motion for attachment on the day of filing. The respondent wanted his client to be present on the day of filing in the event that the judge had any questions as to the basis for the relief. However, at no time did the respondent draft either an affidavit in support of any prejudgment relief or an attorney’s certification under Fed. R. Civ. P. 65(b) or investigate the availability of insurance coverage.
Between June 1998 and December 1999, the respondent and the client were unable to coordinate a date to file the complaint and request ex-parte relief. On September 29, 1999, the client traveled to Boston and came to the U.S. District Court because the respondent had informed him that the matter would be “heard” that day. Without giving any prior notice to his client, the respondent did not appear because of a scheduling conflict.
The client filed a complaint with Bar Counsel in December 1999 complaining, among other matters, of the delay in filing and the respondent’s failure to return phone calls. The respondent did not reply to Bar Counsel’s inquiries and Bar Counsel was required to subpoena the respondent. The respondent appeared at the Office of Bar Counsel pursuant to the subpoena on November 9, 2000 and admitted that he had not, by that date, filed a civil complaint or arranged with the client a date certain to file. By this time, the statute of limitations on the 93A count had expired.
The client met with the respondent in April 2000, December 2000 and February 2001. The respondent and the client agreed that the respondent would attempt negotiation of the claim prior to the expiration of the contract statute of limitations, but that if the claim were not voluntarily resolved, no lawsuit would be filed. The respondent did not thereafter make any effort to negotiate resolution. The respondent repeatedly encouraged the client to consult with other counsel prior to the termination of the limitation period, but the client declined.
The respondent’s draft cover sheet to the federal complaint alleged diversity jurisdiction under 28 U.S.C.A. § 1332. However, unbeknownst to the respondent, there was no diversity because the plaintiff was a citizen of the same state as one of the defendants.
The respondent’s failure to adequately communicate with his client and his lack of diligent representation was in violation of Mass. R. Prof. C. 1.3 and 1.4.
The respondent’s failure to cooperate with an investigation of Bar Counsel, resulting in the need to subpoena him, was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, §3.
The respondent was admitted in 1974. The respondent received an admonition in this matter conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 02-27
CLASSIFICATION:
Trust Account Commingling and Record keeping [Mass. R. Prof. C. 1.15(a)]
SUMMARY:
This matter came to Bar Counsel’s attention as a result of a complaint filed by a medical service provider who did not receive timely payment of a bill. The respondent believed payment had been sent. Once the respondent became aware that payment was not received, the respondent forwarded a check to the creditor in full satisfaction of the amount due.
The respondent had not reconciled the IOLTA account during the relevant time period and was not keeping individual client ledgers. In addition, the respondent would transfer client funds to the office operating account for disbursement. This practice constituted improper commingling of client and business funds.
The respondent has since obtained training in accounting systems relating to client funds. The respondent is now using individual client ledgers, is reconciling the IOLTA account, and has ceased transferring client funds to the operating account for disbursement. The respondent also hired an accounting firm to review the office accounts on a monthly basis.
The respondent was admitted to practice in 1984 and has no prior discipline. The respondent received an admonition for inadequate record keeping and commingling in violation of Mass. R. Prof. C. 1.15(a), conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 02-28
CLASSIFICATIONS:
Improper Financial Assistance to Client [Mass. R. Prof. C. 1.8(e)]
IOLTA Violation [Mass. R. Prof. C. 1.15(e)]
SUMMARY:
The respondent executed a contingent fee agreement to represent the client in a medical malpractice claim. During the representation, the respondent made cash gifts of approximately $1,150 to the client for living expenses. These gifts were made from his own personal funds because the client was experiencing severe financial hardship.
The respondent’s cash gifts to the client constituted impermissible financial assistance in violation of Mass. R. Prof. C. 1.8(e). In mitigation, the respondent has no history of prior or subsequent discipline, has cooperated in the Bar Counsel's investigation, and mistakenly believed that he could make a gift to the client for necessaries.
In an unrelated matter, between April of 1995 and April of 2000, the respondent improperly held the assets of a trust of which he was trustee in his IOLTA account rather than in a separate interest-bearing account in the name of the trust. The respondent’s failure to place funds from the trust in an individual interest-bearing account violated Mass. R. Prof. C. 1.15(e). In mitigation, prior to Bar Counsel’s investigation, the respondent had already moved the trust assets to a separate, interest-bearing account in compliance with Rule 1.15(e).
Based on the foregoing, the respondent receive an admonition for his conduct conditioned on attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 02-29
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 the result of receipt of a notice from a bank of a dishonored check for $636.43 drawn on the respondent’s IOLTA account. The check in question was a payment to the respondent’s landlord for the rent on the respondent’s office. Payment would have created an overdraft because although the respondent and the landlord had an agreement to hold the check until there were sufficient funds in the account, the check instead was negotiated by the landlord’s employee before funds were deposited into the IOLTA account.
The account in question was in fact a commingled account into which the respondent deposited 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 business and personal expenses. The check that was returned as unpaid was for personal expenses, and there were no client funds in the account at the time.
The respondent’s conduct constitutes commingling of business and personal funds in violation of Mass. R. Prof. C. 1.15(a). In addition, and also in violation of Mass. R. Prof. C. 1.15(a), the respondent did not maintain a check register, stubs, or journal for the IOLTA account, and was therefore unable to reconcile the account.
The respondent, who has been a member of the Massachusetts bar since 1989, received an admonition for the above violations, conditioned upon attendance at a CLE program designated by Bar Counsel.
ADMONITION NO. 02-30
CLASSIFICATIONS:
Failing to Seek Client’s Lawful Objectives or Abide by Client’s Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Withdraw Generally [Mass. R. Prof. C. 1.16(a)(3)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]
SUMMARY:
The client and the respondent executed a contingent fee agreement in November 1999 for the respondent to represent the client relative to personal injuries that the client sustained in an automobile accident. There was no court action because the respondent negotiated a settlement with the insurer for the responsible party. The client executed a release on Friday, March 31, 2000.
Since the respondent did not adequately explain to the client that the settlement was only for the bodily injury claim and did not include the client’s personal injury protection claim, the client appeared at the respondent’s office on Monday, April 3, 2000 and told the respondent that he wanted to rescind the settlement. The client terminated the respondent after he learned that the respondent had already forwarded the release to the insurer. The respondent provided the client with the file on April 3, 2000 because the client indicated that he would retain successor counsel. Since he understood that he was terminated on April 3, 2000, the respondent did not contact the insurer or perform any other services for the client.
When the settlement check arrived on or about April 19, 2000, the respondent sent a letter to the client to advise him of the receipt of the settlement check. Since the client did not reply, and the respondent had not received notice that the client had retained successor counsel, the respondent deposited the check into his IOLTA account. He did so based upon an improper provision contained in his contingent fee agreement that authorized him to sign the client’s name to checks and other documents. The settlement proceeds remained in the respondent’s IOLTA account for more than eight months until bar counsel provided the respondent with a copy of correspondence from the client which indicated a new address for the client. The respondent then forwarded the client his share of the settlement and the client negotiated the check.
The respondent’s failure to contact the insurer to advise that the client wished to rescind his acceptance of the settlement offer and to request that the insurer not send him the settlement check was in violation of Mass. R. Prof. C. 1.2(a), Mass. R. Prof. C. 1.3, and Mass. R. Prof. C. 1.16(a)(3). The respondent’s failure to adequately explain to the client that the settlement was only relative to the bodily injury claim, and did not include the personal injury protection claim, was in violation of Mass. R. Prof. C. 1.4. The respondent’s improper provision in his contingent fee agreement permitting him to sign the client’s name to the settlement check without the client’s express authorization violated Mass. R. Prof. C. 8.4(h).
The respondent has been a member of the Bar since 1958. He received an admonition for the above misconduct.
ADMONITION NO. 02-31
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:
The respondent represented a client in an employment discrimination action against the client’s former employer. In August of 1999, the respondent settled the case for $17,000.00, with the client’s consent. On or about August 16, 1999, the respondent sent the client a check for the balance of the net proceeds of the client’s settlement. The client did not attempt to negotiate the settlement check for nearly eight months.
In June of 2000, the client filed a grievance questioning the respondent’s handling of the case. Bar Counsel concluded that the respondent had handled the client’s case appropriately. However, a review of the bank records for the respondent’s client funds account revealed that the respondent did not reconcile the account on a regular basis. In addition, the respondent did not promptly withdraw his earned fees from the account. Instead, he issued multiple checks to himself to effect piecemeal removal of his fees from the IOLTA account. The respondent did not keep sufficient track of the fees withdrawn in this manner.
The respondent’s conduct in failing to reconcile his IOLTA account constituted inadequate recordkeeping in violation of Mass. R. Prof. C. 1.15(a). His failure to promptly withdraw earned fees from the IOLTA account in full 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 1986 with no prior discipline. He has now opened a new IOLTA account, and made satisfactory changes to his record keeping. He accordingly received an admonition, conditioned upon attendance at a CLE course designated by Bar Counsel.
ADMONITION NO. 02-32
CLASSIFICATION:
Improper Communication with Represented Person [Mass. R. Prof. C. 4.2]
SUMMARY:
The respondent was a tenant in a three-unit building owned by a real estate trust. On February 27, 2001, a trustee of the real estate trust hand-delivered to the respondent a notice of rent increase effective on April 1, when the prior lease expired, and an offer to establish a new tenancy at an increased rent. The respondent failed to pay the increased rent on April 1, instead tendering rent at the pre-increase amount. On April 11, 2001, the lawyer for the real estate trust sent a letter to the respondent accepting his rent check for use and occupancy only, reminding the respondent that his rent had been increased. The letter from the lawyer also instructed the respon
