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Commonwealth of Massachusetts


2003 Admonitions



ADMONITION NO. 03-01

CLASSIFICATIONS:
Withdrawal Without Protecting Client [DR 2-110(A)(2)]
Prejudicing/Damaging Client During Representation [DR 7-101(A)(3)]

SUMMARY:
The respondent brought an action for the client on February 1, 1996 against an automobile repair shop that allegedly damaged the clientís automobile. Opposing counsel filed an application for dismissal pursuant to Mass. R. Civ. P. 33(a) on October 2, 1996 because the respondent did not serve answers to interrogatories. The respondent served answers to interrogatories after receiving the application for dismissal, but opposing counselís secretary inadvertently filed the reapplication for dismissal and the clerkís office dismissed the action on November 26, 1996.

The respondent obtained an oral assent from opposing counsel to vacate the dismissal but did not file a motion to vacate the dismissal because the client discharged him and chose to represent himself. The respondent did not advise the client that opposing counsel had assented to vacate the dismissal and that the client should file a motion to vacate the dismissal.

By not advising the client of opposing counselís willingness to assent to vacate the dismissal and by not advising the client of the need to file a motion to vacate the dismissal, the respondent failed to protect the clientís interests after discharge, in violation of Canon Two, Disciplinary Rule 2-110(A)(2). The respondentís conduct also prejudiced the clientís case in violation of Canon Seven, Disciplinary Rule 7-101(A)(3).

The respondent was admitted to practice in 1990. He has no history of discipline. The respondent received an admonition conditioned upon his attendance at a continuing legal education program designated by bar counsel.


ADMONITION NO. 03-02

CLASSIFICATION:
Conflict from Responsibilities to Another Client or Lawyerís Own Interests [Mass. R. Prof. C. 1.7(b)]

SUMMARY:
The respondent is a licensed real estate broker The respondent is also a sole practitioner and, at the relevant times, had a law office at the same location as his realty company. The phone number for the law office and the realty company were the same.

In December 2001, the respondent assisted a husband and wife (the couple) in connection with the potential sale of their home (the sale transaction). The respondent negotiated various clauses of the purchase and sale agreement with the buyerís attorney and undertook to act as escrow agent of the buyerís deposit. The purchase and sale agreement identified the respondent as an attorney and as the person to receive notice on behalf of the sellers. The respondent viewed his role in the transaction to be the sellersí agent, but the couple and the buyerís attorney reasonably understood the respondentís role in the transaction to include acting as an attorney for the sellers.

The respondent also assisted the same couple in connection with their plan to purchase a new home (the purchase transaction). The respondent asked the couple to sign a preprinted standardized disclosure form that specified that the respondent would be the sellersí agent and further provided that, if legal advice was needed, the couple should consult with counsel. The couple did not consult with other counsel because they understood the respondent to be looking out for their interests and to be their attorney.

In the purchase transaction, the respondent was named in the purchase and sale agreement as a co-broker entitled to one half the total commission. The respondent also negotiated various clauses in an addendum to the purchase and sales agreement with the sellerís attorney. The purchase and sale agreement identified the respondent as an attorney and as the person to receive notice on behalf of the buyers. The other co-broker listed the respondent as broker and as attorney for the buyers in its literature. The sellerís attorney addressed all correspondence to the respondent in his capacity as an attorney representing the buyers. The respondent did not correct anyoneís perception of his role.

The sale transaction fell through because the buyer gave timely notice of an inability to obtain financing under the financing contingency clause. The respondent delayed transmitting this information to the couple for two days. Irrespective, there was no sale contingency clause in the purchase transaction. Accordingly, the couple had to decide between going forward or losing their deposit. They elected to go forward, but questioned the respondentís delay in notifying them of the financing contingency notice.

The couple incurred some additional financing costs as a result of the need to carry two mortgages for a time. Ultimately, however, they sold their home for a purchase price in excess of the purchase price on the aborted sale transaction.

As to the purchase transaction, the respondentís brokerage services were not distinct from the provision of legal services. The respondent failed to take reasonable measures to assure that the parties to the transaction knew that his services were not legal services and that the protections of the client-lawyer relationship did not exist. Accordingly, pursuant to Mass. R. Prof. C. 5.7, the respondent was subject to the Rules of Professional Conduct with respect to the provision of brokerage services.

The respondent and the couple had differing interests in connection with the purchase transaction. The respondent attempted to make disclosure of this conflict, but his disclosure, contained on a preprinted standardized form executed without explanation, was inadequate.

As to the purchase transaction, the respondentís conduct in acting as buyersí counsel in connection with the drafting of a purchase and sale agreement, where the exercise of his independent professional judgment might have been materially limited by his own business or financial interests as a result of his position as co-broker of the same transaction, without consent after adequate consultation, was in violation of Mass. R. Prof. C. 1.7(b).

After the matter was brought to Bar Counselís attention, the respondent took steps to insure that this type of role confusion will not occur in the future. He has now physically separated his brokerage business from his law practice, by moving the brokerage business to a separate location with separate phone and signage. He has also developed written disclosure forms and taken other prophylactic measures.

The respondent was admitted in 1994 and has no prior discipline. The respondent received an admonition conditioned upon attendance at a CLE program recommended by Bar Counsel.


ADMONITION NO. 03-03

CLASSIFICATIONS:
Failing to Seek Clientís Lawful Objectives or Abide by Clientís Decision 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(a) and (b)]
Withdrawal without Tribunalís Permission [Mass. R. Prof. C. 1.16(c)]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
The respondent began representing the client in September 1999 in a post-divorce dispute between the client and his ex-wife over visitation and child support. The client paid the respondent an initial $500.00 retainer, which was exhausted in dealing with the visitation issue.

The respondent informed the client on more than one occasion that he would have to pay the outstanding balance and replenish the retainer in order for representation to continue. As of May 24, 2001, the client owed $1,075.00 for legal services rendered. The respondent agreed to continue representing the client based upon the clientís promise to pay $75.00 per week.

The client made four payments totaling $200.00 in June and July of 2001. The client moved to North Carolina in September 2001, where he was temporarily unemployed and then employed in a position that paid less than his previous job.

The client asked the respondent to file a complaint for modification of his child support and provided the respondent with a power of attorney so that the client would not have to appear in Massachusetts. The respondent filed a complaint for modification on December 1, 2001. On December 5, 2001, the respondent sent the client an email message to remind him that there were still outstanding legal fees due. On December 13, 2001, the court returned the complaint for modification because the ex-wife's complaint for modification was still pending. Because the client had not made any further payments to the respondent, the respondent took no further action of substance on behalf of the client. The respondent did not move for permission to withdraw from the case.

Between December 2001 and March 2002, the client attempted to reach the respondent by email. The respondent did not reply to these messages. On March 5, 2002, the client discharged the respondent and subsequently negotiated a payment plan directly with the Department of Revenue to settle the arrearage that he owed for child support.

The respondent's failure to pursue his client's complaint for modification violated Mass. R. Prof. C. 1.2(a) and Mass. R. Prof. C.1.3. The respondentís failure to advise the client of the status of his case violated Mass. R. Prof. C. 1.4(a) and (b). The respondentís withdrawal from representation without obtaining permission from the tribunal and without taking reasonable steps to protect his clientís interests violated Mass. R. Prof. C. 1.16(c) and (d).

The respondent has been a member of the bar since 1981. He received an admonition for the above misconduct conditioned upon attendance at a continuing legal education program designated by bar counsel.


ADMONITION NO. 03-04

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15a]
Trust Account Requirements [Mass. R. Prof. C. 1.15d]

SUMMARY:
This matter came to bar counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of a receipt of a notice of dishonored check from the bank at which the respondent maintained his IOLTA account. The check was dishonored because the respondent had failed to make a deposit to cover the check. Due to inadequate record keeping, the respondent failed to appreciate that there were insufficient funds in the account to cover the check.

In addition, the respondent commingled personal and client funds in the IOLTA account. He failed promptly to withdraw earned fees from the account, and he deposited earned fees to the account. In addition, he issued checks from the IOLTA account drawing on the fees to pay client expenses.

The respondentís failure to maintain an adequate record of his receipt and maintenance of clientsí funds violated Mass. R. Prof. C. 1.15(a). Commingling personal and client funds in the account violated Mass. R. Prof. C. 1.15(a) and (d). Issuing checks from the IOLTA account to pay business obligations violated Mass. R. Prof. C. 1.15(a) and (d).

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


ADMONITION NO. 03-05

CLASSIFICATIONS:
Withdrawal Without Protecting Client [DR 2-110(A)(2)]
Neglecting A Legal Matter [DR 6-101(A)(3)]

SUMMARY:
While vacationing in Bermuda in 1990, the client and her husband were victims of a burglary. The respondent represented them in recovering their personal property and in attempting to settle their personal injury claims against the resort where the incident occurred. The respondent was able to recover the clientís personal property from the Bermuda police by May 1991 but was unable to settle the personal injury claims.

The client paid the respondent $5,000.00 in December 1992 to retain counsel in Bermuda to bring an action against the resort. The respondent traveled to Bermuda, hired Bermuda counsel for the client, and subsequently assisted Bermuda counsel by obtaining and forwarding information and documents that Bermuda counsel requested. Bermuda counsel commenced an action for the client and her husband against the resort in 1994.

Once Bermuda counsel was engaged, the respondent considered his responsibility to the client completed, and he took no further action of substance. The client, however, had no direct communications with Bermuda counsel, who corresponded directly with the respondent. In addition, the respondent paid Bermuda counselís invoices with the balance of the $5,000.00 that the client paid. The respondent did not advise the client that he was not monitoring Bermuda counsel and did not inform her that he had no communication from Bermuda counsel after 1996.

In January 1998, the client hired another Massachusetts attorney to represent her business in an unrelated matter. The client asked her new attorney to ascertain the status of the Bermuda litigation. Bermuda counsel told the clientís new attorney that he had taken no action in the case since September 1996 because the respondent had made no further payments and had not responded to requests for direction.

The respondentís failure to clarify with his client his responsibility to monitor the Bermuda litigation and his withdrawal from representation without taking reasonable steps to protect his clientís rights violated Canon Two, DR 2-110(A)(2) and Canon Six, DR 6-101(A)(3).

The respondent has been a member of the Bar since 1977. He received an admonition for the above misconduct.


ADMONITION NO. 03-06

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Notify of Receipt or Account o Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Responsibilities Regarding Nonlawyer Assistants [Mass. R. Prof. C. 5.3]

SUMMARY:
The respondentís office represented a lender on Friday, August 10, 2001 in a closing involving a refinance of the mortgage on a residential property. On August 14, when the right of rescission had expired, the respondent received from the lender a check for the mortgage proceeds, instead of a wire transfer, certified check, or other ďgood fundsĒ as defined by G.L. c. 183, ß 63(B). The check was deposited to the respondentís IOLTA account. Because the deposit was an out-of-state check, the respondentís bank did not credit the deposit as collected or available until August 24, 2001.

Despite the fact that the respondent was not in possession of good funds, the respondentís paralegal, unknown to the respondent and in violation of G.L. c. 183, ß63B, recorded the lenderís mortgage on August 15, 2001. The deposit was credited as collected on August 24, 2001 and, again unknown to the respondent, the paralegal delayed four additional days before fully disbursing those funds.

The respondentís failure to properly supervise his real estate paralegal constitutes a violation of Mass. R. Prof. C. 5.3. The recording of the deed in violation of the good funds statute constitutes a violation of Mass. R. Prof. C. 1.1 and 1.15(b). The failure to promptly disburse all closing proceeds constitutes a violation of Mass. R. Prof. C. 1.3 and 1.15(b).

Because this lender refuses to provide ďgood fundsĒ as defined by the statute, the respondent has ceased his representation of this lender. He has also implemented office procedures to train his real estate paralegals on the good funds statute and to supervise those paralegals. The respondent received an admonition conditioned upon his attendance at a CLE course designated by Bar Counsel and payment to the borrower of lost interest.


ADMONITION NO. 03-07

CLASSIFICATION:
Unauthorized Practice of Law [Mass. R. Prof. C. 5.5(a)]

SUMMARY:
The respondent assumed inactive status with the Board of Bar Overseers on or about June 27, 2000. He filed notices of withdrawal in all of his cases on or about June 21, 2000. Without thinking about his inactive status, he and his partners negotiated a partnership dissolution agreement that called for the respondent to argue the appeal of a case in which the respondent had filed the appellate brief. The respondent therefore appeared at the Appeals Court and argued the matter on January 10, 2002. The respondent did not realize that he had to resume active status for even one argument.

The respondent has been a member of the bar since 1974. By appearing in court and arguing an appeal after he had assumed inactive status as an attorney, the respondent violated Mass. R. Prof. C. 5.5(a). He received an admonition for his conduct in this matter.


ADMONITION NO. 03-08

CLASSIFICATION:
Entering into a business transaction with a client [Mass. R. Prof. C. 1.8(a)]

SUMMARY:
The respondent accepted funds from an existing client and executed two promissory notes payable to the client from the respondent. The funds were intended to be used for prototype product development for a company that the respondent owned. The respondentís company was a legitimate concern with realistic prospects.

Both notes were drafted by the respondent, a patent attorney. The first note was executed in May of 1998 with payment due in full on or before September 8, 1998. The second note was executed in October of 1998 with payment due in full on or before September 8, 1999. At the time of the transactions, the respondent had filed a patent application in an unrelated matter on behalf of the client and was awaiting a decision. The patent application was ultimately successful without any complication.

The respondent did not pay the promissory notes on the due dates. The notes that the respondent created were poorly drafted and the parties had differing understandings of what was intended. The respondent understood the notes to be a guarantee of an investment by the client in the company, and not, as the wording of the notes seems to indicate and the client claims, an unconditional obligation to pay on dates certain.

The respondent did not suggest that the client consult independent counsel and the client did not receive the advice that he would have received if represented by independent counsel. The ambiguity or contradiction between the promissory notes as written and the partiesí differing understandings of the specifics of the transaction ultimately resulted in litigation.

In addition, to the extent that the notes were ambiguous or contradictory, the terms of the transaction were not fully disclosed or fair and reasonable. The respondent also did not obtain the clientís consent to the conflict of interest in writing.

The respondentís conduct of entering into a business transaction with an existing client in circumstances where the respondent did not adequately document the transaction, did not specifically recommend to his client that he seek the advice of independent counsel, and did not obtain the clientís consent to the conflict in writing was in violation of Mass. R. Prof. C. 1.8(a).

In mitigation, the parties are negotiating resolution of the civil dispute. Also, the client was a sophisticated investor who had made other similar private investments or loans.

The respondent has no prior discipline. He received an admonition for the above violations, conditioned upon attendance at a CLE program recommended by Bar Counsel.


ADMONITION NO. 03-09

CLASSIFICATIONS:
Conduct Involving Misrepresentation [Mass R. Prof. C.8.4(c)]
Conduct Prejudicial to the Administration of Justice [Mass R. Prof. C. 8.4(d)]

SUMMARY:
The respondent represented a client in a suit against the clientís former lawyers. He filed a verified complaint on the clientís behalf in July 1995. In August 1996, the respondent prepared a motion to amend the complaint to add the individual members of the former lawyersí law firm as defendants in the action and to add a new count to the complaint for an accounting. The client read and personally verified the amended complaint which was attached to the motion to amend.

In January 1997, the court allowed the motion to add the members of the law firm as defendants, but denied the request to add a count to the complaint. In about February or March, the respondent prepared a new verified amended complaint conforming to the courtís ruling. In all respects other than the deletion of the count seeking an accounting, the new complaint was identical to the complaint the client had verified in August 1996.

The respondent sent the modified amended verified complaint to the client for his review and signature. When the respondent did not receive it back in time so that it could be filed in court in a timely manner, he attempted to reach the client by telephone. When the respondent was finally able to reach the client on the phone, they reviewed the contents of the amended verified complaint. The respondent understood that the client was unavailable to come to his office to personally sign the verified amended complaint. For this reason, the respondent obtained permission from the client to sign the complaint on the clientís behalf as the clientís free act and deed.

Opposing counsel brought a motion to dismiss the complaint when they discovered that the respondent had both signed the verified complaint on the clientís behalf and notarized the clientís purported signature on the verification. When the issue was brought before a judge, the respondent admitted his conduct and was sanctioned $250, which he paid. The court denied the motion by the defendants to have the case dismissed because of the respondentís conduct as no one was prejudiced by the respondentís conduct.

By filing a verified amended complaint purporting to have been signed by his client under the pains and penalties of perjury, but which the respondent knew had not been signed by the client, and by falsely notarizing the clientís purported signature, the respondent violated Mass. R. Prof. C. 8.4(c) (conduct involving misrepresentation) and Mass. R. Prof. C. 8.4(d) (conduct prejudicial to the administration of justice).

The respondent was admitted in 1971 and has no prior discipline. The respondent received an admonition for his misconduct in this matter.


ADMONITION NO. 03-10

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

SUMMARY:
The respondent received an admonition for his conduct in two matters conditioned upon his attendance at a CLE course designated by Bar Counsel.

In the first matter, a client retained the respondent in August 1992 to assist him in obtaining permanent residency status for his wife, son, and daughter. The respondent informed the client that he would file petitions for an alien relative on behalf of the clientís wife and son, but informed the client that a different petition should be filed for the daughter at a later time because the daughter was illegitimate and because she did not reside in the United States. The respondent charged the client a $600 retainer plus filing fees to process petitions for the wife and son. The client paid the respondent all of the required filing fees, but only paid $460 toward the respondentís retainer.

The respondent filed petitions on behalf of the clientís wife and son. Permanent residency status was granted to them in 1996. In or around that time, the client asked the respondent about the status of his daughterís petition. The respondent advised the client that the filing fee for the daughterís petition was $80, and that his legal fee would be included in the original retainer. The client did not pay the respondent the balance of the retainer.

The client had some telephone contact with the respondent in 1999 or 2000 regarding the status of the petition. The respondent reviewed his file and saw only a copy of the petition. He believed that he filed the petition and he informed the client that it had been filed. When the client again inquired of its status in May 2001, the respondent reviewed his file again and could not find a receipt for the petition from the INS. He advised the client that he would refile the petition, and that the filing fee was $110. The client paid the filing fee to the respondent. The respondent requested the $140 retainer balance and the client insisted that he had already paid it. The respondent informed the client that his records showed that it had not been paid and he requested that the client provide him with receipts. When the client did not provide the receipts, the respondent did not file the petition because of the outstanding retainer balance. However, the respondent did not advise the client of this fact and the client believed that the petition had been filed.

The respondent eventually filed the petition in February 2002. The petition is currently pending before the INS. The respondent filed the petition without requesting or receiving the $140 retainer balance from the client.

In the second matter, a client retained the respondent in April 2000 for assistance in filing a citizenship petition. The respondent requested the $250 filing fee and a $50 legal fee. Upon receipt of the filing fee, the respondent reviewed the clientís criminal record, and advised the client that the petition should not be filed until April 2001, because the client needed to demonstrate a five-year record of good moral character. The client never paid the $50 fee, and the respondent failed to inform the client that the petition would not be filed until the $50 was paid.

In November 2001, the client left several telephone messages for the respondent inquiring about the status of his petition. The respondent did not return any of those calls. The client then visited an INS Service Center and was advised that no petition had been filed on his behalf. In February 2002, after receiving this information, the client sent the respondent a certified letter. After receiving the letter, the respondent filed the citizenship petition with the INS. He did not request or receive his $50 processing fee from the client.

Both clients had difficulty contacting the respondent because the respondent closed his law office and began practicing from his home in or around October 2000.

Although the respondent kept the same business telephone number, he did not send notice to his clients regarding his change of business address.

By failing to file immigration petitions on behalf of his clients after the clients had paid him the filing fees for the petitions, or alternatively by failing to return the collected filing fees and advise the clients that the petitions would not be filed unless his outstanding fees were paid, the respondent violated Mass. R. Prof. C. 1.3 and 1.4. The respondent further violated Mass. R. Prof. C. 1.4 by failing to advise his clients of his change of business address.

The respondent was admitted to the Massachusetts Bar in 1977 and has no prior discipline. In mitigation, neither of the respondentís clients was harmed by the respondentís neglect. The INS is currently processing the petition for the first clientís daughter and the second client will soon be sworn in as a United States citizen. The respondent has suffered from chronic depression since the death of his wife in 1996. He has recently begun grief counseling. The respondent also took action to avoid future problems with clients by making an inventory of his active case files and sending each client a case status report.


ADMONITION NO. 03-11

CLASSIFICATION:
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.1(b) and 8.4(g), and S.J.C. Rule 4:01, ß 3]

SUMMARY:
The respondent represented an estate executor in selling the decedentís house in early 2001. In August of 2001, the executor filed a complaint with Bar Counsel charging that the respondent neglected the matter, failed to communicate with her and did not earn his fee. The sale of the house was a source of contention among the executor and her eight siblings, all children of the decedent. The respondent handled the matter appropriately.

The respondent did, however, fail to cooperate in a timely manner with Bar Counselís investigation. The respondent did not respond to Bar Counselís initial request for a response to the grievance. In response to Bar Counselís second request, the respondent twice promised a response that was not forthcoming. Bar Counsel was required to obtain and serve a subpoena compelling the respondentís attendance and response to the grievance.

The respondentís failure to cooperate with Bar Counselís investigation in a timely manner was in violation of Mass. R. Prof. C. 8.1(b) and 8.4(g), and S.J.C. Rule 4:01, ß 3. In aggravation, the respondent received an admonition in September of 1999 for trust account commingling and recordkeeping violations and for failure to cooperate with Bar Counselís investigation. In mitigation, the respondentís office suffered staff shortages in September and October of 2001 that prevented him from devoting the time necessary to respond in detail to the grievance. When subpoenaed, the respondent cooperated and responded fully to the grievance.

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


ADMONITION NO. 03-12

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

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

The respondentís practice is concentrated in personal injury cases. Instead of withdrawing the full amount of his fee when it was earned, the respondent withdrew fees on a piecemeal basis, thereby commingling personal and client funds in his IOLTA account in violation of Mass. R. Prof. C. 1.15(a).

In addition, the respondent did not maintain adequate records of his receipt, maintenance, and disbursement of funds in the IOLTA account, in violation of Mass. R. Prof. C. 1.15(a). He failed to keep contemporaneous records of his withdrawals of earned fees, he did not keep sufficient records of outstanding deposits and withdrawals, he failed to maintain individual ledgers for each client, and he did not perform adequate reconciliations of his account. These failures led to the dishonored check.

The respondent has been a member of the Massachusetts bar since 1978. Upon notice of the dishonored check, the respondent took immediate steps to rectify his record keeping practices in consultation with the Office of Bar Counsel and to conform with materials provided by the IOLTA Committee. The respondent accordingly received an admonition for the above violations, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-13

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

SUMMARY:
In early January of 1998, a husband and wife retained the respondent to pursue claims for bodily injuries resulting from an automobile accident that occurred on November 27, 1997. The respondent was unable to reach a settlement with the other driverís insurance carrier and, on November 3, 2000, filed a civil complaint on behalf of the clients.

On January 3, 2001, the defendant served the respondent with interrogatories. The interrogatories went unanswered and, on May 22, 2001, the defendant served the respondent with an Application for Dismissal pursuant to Mass. R. Civ. P. 33(a). On June 21, 2001, the respondent sent draft answers to interrogatories to the clients. A short time after receipt of the draft answers, the clients called the respondent and informed the respondent of their corrections to the draft answers. The respondent promised to send corrected answers to the clients, but never did. As a result of the respondentís failure to return interrogatories to the defendant, the defendant filed a Reapplication for Dismissal pursuant to Mass. R. Civ. P. 33(a) on June 26, 2001. A Judgment of Dismissal was entered on August 9, 2001.

On or about September 9, 2002, the respondentís landlord brought the respondent mail dating back to the summer of 2001 that had been mistakenly delivered elsewhere within the building where the respondentís office is located. Included in the mail was the defendant's Reapplication for Dismissal. Upon opening the mail, the respondent contacted the court and learned that the case had been dismissed. She subsequently spoke with the clients and advised them of same.

In November of 2002, the respondent corrected the interrogatories and sent them to the clients for execution. On December 9, 2002, after the corrected interrogatories were executed, the respondent filed a motion to vacate judgment of dismissal. On December 18, 2002, the motion was denied.

The respondent did not receive the defendantís Reapplication for Dismissal mailed to her in the summer of 2001. Irrespective, the respondent did not follow up with her clients regarding the outstanding answers or otherwise check on the status of the case between June 2001 and September 2002.

The respondentís neglect of a legal matter entrusted to her and her inadequate client communication was in violation of Mass. R. Prof. C. 1.3 and 1.4. The respondent was admitted in 1991 and has no prior discipline. In mitigation, she has since settled the matter with the clients and successor counsel to their satisfaction. She has also taken steps to improve her tickler system.

The respondent received an admonition conditioned on attendance at a CLE program designated by Bar Counsel and upon obtaining and maintaining malpractice insurance.


ADMONITION NO. 03-14

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

SUMMARY:
The respondent acted as settlement agent at a real estate closing. The parties agreed that the respondent would hold back $10,000 from the sellersí proceeds to cover the sellersí obligations to provide the premises with town water. Sellersí counsel complained to Bar Counsel that the respondent was improperly continuing to withhold the funds after the work was completed. This complaint was unfounded. The respondent disbursed the funds as payments for the work became due and has released the remaining funds to the sellers.

Records produced by the respondent to Bar Counsel showed that the respondent held the escrowed funds in a pooled, interest bearing clientsí fund account that was not a designated IOLTA account. Interest earned on the funds was properly allocated on a monthly basis. Mass. R. Prof. C. 1.15(e) requires, however, that pooled clientsí fund accounts be designated as IOLTA accounts and that funds of more than nominal amount or which are to be held for more than a short period of time be placed in an individual interest earning account. The respondentís maintenance of a pooled interest earning clientsí fund account that was not an IOLTA account was in violation of Mass. R. Prof. C. 1.15(e).

The respondent has closed the account in issue and transferred clientsí funds in accordance with Rule 1.15(e). The respondent received an admonition for his misconduct.


ADMONITION NO. 03-15

CLASSIFICATIONS:
Handling Legal Matter When not Competent [DR 6 101(A)(1)]
Handling Legal Matter Without Adequate Preparation [DR 6 101(A)(2)]

SUMMARY:
The respondent represented a client who was interested in investing funds privately in short term high interest mortgage loans. The respondent represented the client in connection with three such loans in the summer of 1994. One loan was to an owner of real estate in Massachusetts and the other two were to a developer of two adjoining parcels of land in Maine. Each loan was to be secured by a first mortgage on the subject properties.

As to the Maine loans, the respondent reviewed with the client a number of documents from the developer concerning the development of the two lots. Inconsistent information in these documents raised questions as to the value of the lots, whether the developer owned the lots and the status of construction. The respondent did not advise his client to obtain an independent appraisal of value or independent confirmation of the ownership of the lots or the status of construction. The respondent is not a member of the Maine bar and did not refer the client to or associate himself with a Maine attorney to handle the Maine loans.

As to the Massachusetts loan, the respondent reviewed with the client an appraisal of the property that had been prepared for the owner, who wanted to subdivide the property. Information in the appraisal raised questions about whether the property could be legally subdivided and developed. The respondent did not advise his client to obtain an independent appraisal of the property or to further investigate various issues concerning potential development of the property. The client independently concluded that if the property were foreclosed, a builder could build something on the property to recoup the clientís loss.

The respondent handled the closings of the loans for the client in August of 1994. He prepared or reviewed a note, mortgage and other loan documents for each loan. He forwarded funds provided by the client to each borrower, obtained the borrowersí signatures on the notes and mortgages, and saw to the necessary recording of each mortgage. The borrowers defaulted on each loan. The respondent assisted the client in attempts to foreclose the mortgages, but because of problems with the value of the properties, because of a number of mechanicsí and tax liens on the Maine properties, and because of an outstanding federal court restraining order prohibiting the client from transferring the property, the clientís recovery was minimal. The client brought a malpractice action against the respondent, which was settled with a payment that fully compensated the client.

The client was experienced in real estate and did not rely heavily on the respondent in deciding to make the three mortgage loans. Nevertheless, the respondent had an obligation to take steps necessary to ensure that his client was aware of the risks associated with the loans and the options for minimizing those risks. In failing to advise his client to obtain an independent appraisal of the value of the Maine lots or independent confirmation of the ownership of the lots or the status of construction, and in failing to advise his client to obtain an independent appraisal of the Massachusetts property or to further investigate various issues concerning potential development of that property, the respondent handled these legal matters without adequate preparation in violation of Canon Six, DR 6 101(A)(2). In failing to refer the client to a Maine attorney or associate himself with a Maine attorney in connection with the Maine loans, the respondent handled a legal matter he was not competent to handle in violation of Canon Six, DR 6 101(A)(1).

A Hearing Committee of the Board heard evidence in this matter, made findings of fact and conclusions of law and recommended that the respondent receive an admonition for his misconduct. On February 10, 2003, the Board voted to accept the recommendation of the Hearing Committee.


ADMONITION NO. 03-16

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

SUMMARY:
From 1996 onward, the respondent has represented a client in ongoing post divorce issues with her ex husband, including child support annual adjustments, college expenses, health insurance and uninsured medical expenses.

In 1997, 1998 and 1999, the respondent communicated with the ex husband, who was pro se, either directly or through his client, concerning annual adjustments to child support payments. In 2000, the respondent sent a letter to the ex husband about obligations for college expenses and received a response from a lawyer, who informed the respondent that she was representing the ex husband in the domestic relations matters. In May and October of 2001, the respondent communicated with the lawyer concerning support and uninsured medical expenses. On October 25, 2001, the respondent filed a contempt action against the ex husband concerning child support and college expenses. The respondent sent a copy of the contempt petition to the lawyer.

On October 24 and 30, 2001, the respondent sent letters directly to the ex husband concerning responsibility for uninsured medical expenses. These letters were in violation of Mass. R. Prof. C. 4.2 (lawyer shall not communicate directly with a person known to be represented by counsel). The respondent received an admonition for this misconduct.


ADMONITION NO. 03-17

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

SUMMARY:
The respondent was retained in February 2001 to prepare her clientís state and federal income tax returns for calendar year 2000. The return was complicated because the client, who was in the middle of a divorce and in the process of moving, had made a substantial premature withdrawal from an individual retirement account. The respondent needed to gather information in order to apply for a hardship exemption. As a result of miscommunication, there was confusion as to who was responsible to file for an automatic extension. As a result, no extension was filed.

In January 2002, the client and her new husband began e mailing the respondent protesting the delay in finalizing the tax returns. In January, February and May 2002 the respondent sent e mails to the client promising to complete the returns in the immediate future. She also made a number of oral promises along the same lines. Despite her promises, she failed to attend to the matter. The respondent did not finalize the returns until December 23, 2002, and only after the client filed a complaint with Bar Counsel.

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

In mitigation, during the relevant time, the respondent experienced a personal loss that resulted in depression. The respondent has also notified her malpractice carrier of the clientís potential claim and the respondent will either defend the returns or reimburse the client in full if there are penalties or interest assessed. If the exemption is granted, the client will be entitled to a refund.

The respondent was admitted in 1982. She has a prior admonition for trust account violations and for failing to cooperate with Bar Counsel. She is not currently practicing law. In light of the mitigation and the lack of any ultimate harm to the client, the respondent received an admonition for the above violations.


ADMONITION NO. 03-18

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

SUMMARY:
A client paid the respondent $750 in August of 2001 to file a Chapter 7 bankruptcy on the clientís behalf. Thereafter, the respondent did not reply to the clientís repeated inquiries and the bankruptcy was never filed. After the complaint to Bar Counsel was filed, the respondent refunded the full $750. The respondentís conduct in these respects constitutes neglect and inadequate communication in violation of Mass. R. Prof. C. 1.3 and 1.4.

In an unrelated matter, the respondent was paid $2,000 in November of 2001 to file a Chapter 7 bankruptcy on behalf of the client. There is a dispute between the respondent and the client concerning whether the respondentís delay in filing the petition for bankruptcy was due, in part, to the clientís delay in providing the necessary information. The respondent, however, did not reply to the clientís repeated inquiries in the weeks preceding the filing of the clientís bankruptcy petition. The respondent finally filed the petition on January 22, 2002. The client then discharged the respondent and hired successor counsel. The respondent returned the full retainer to the client. The respondentís conduct constitutes inadequate communication in violation of Mass. R. Prof. C. 1.4.

In mitigation, during this time period, the respondentís wife was ill, and his youngest child became seriously ill. Also, the respondentís father was diagnosed with a terminal illness that subsequently caused his death. The respondent has been in counseling concerning these family issues. In addition, the respondent refunded both clientsí fees in full.

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


ADMONITION NO. 03-19

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

SUMMARY:
This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as the result of receipt of notice of three dishonored checks from the bank in which the respondentís IOLTA account is maintained. Payment of the three checks would have caused the account to be overdrawn by $123.67. The respondent immediately deposited funds to cover the shortage.

The account in question was used exclusively for the respondentís collections practice. He failed to maintain adequate records of the account. Specifically, he did not have separate ledgers for each collection matter and he failed to reconcile transactions as each case concluded. He also retained personal funds in the account to cover the client expenses instead of collecting these funds in advance from the clients. The respondentís conduct in this regard was in violation of Mass. R. Prof. C. 1.15(a).

After receipt of the dishonored check notifications, the respondent commissioned an audit of his account. He now reconciles the account appropriately and has also installed computer accounting software specifically designed for a collection practice. Finally, the respondent has opened a separate account for the collection and payment of costs.

The respondent was admitted in 1952 and has no prior discipline. The respondent received an admonition for the above misconduct.


ADMONITION NO. 03-20

CLASSIFICATION:
Improper Business Transaction with Client [Mass. R. Prof. C. 1.8(a)]

SUMMARY:
In May 1999 the respondent solicited $4,000.00 from an existing client and drafted a promissory note payable to the client. The maker of the note was a corporation in which the respondent had a financial interest. The companyís office address was the respondentís law office and the respondent was its resident agent. The note was due in 24 installments payable monthly at an annual interest rate of 15%. As of September 2002, only one monthly payment had been paid when due.

The respondent and the client had different understandings as to what the agreement was and neither understanding was reflected in the note that was executed. The respondent understood that the parties intended the note to be payable out of the net profits of the company. The note, however, contained no such condition or limitation. The client understood that he had the option of having an equity position in the company but that, unless he elected the option, he was entitled to unconditional payment on dates certain. Finally, there was dispute as to whether the respondent was entitled to set off legal fees owed against the companyís obligation to pay.

The client did not receive the advice that he would have received if represented by independent counsel. Independent counsel would have clarified the specific conditions under which the note would be due and owing and likely would have required the respondent to provide his own personal guarantee. The contradiction between the note as written and the partiesí understanding of the specifics of the deal ultimately resulted in a stalemate and a complaint to Bar Counsel.

In November 2002 the respondent offered to pay all arrearages but the client refused to accept payment, insisting on an equity position. By January 2003, the matter was resolved to the satisfaction of the client.

The terms on which the respondent acquired the clientís participation in the business were ambiguous or contradictory and therefore not fair and reasonable. Also, the respondent did not obtain the clientís consent to the conflict in writing.

The respondentís conduct of entering into a business transaction with an existing client in circumstances where the respondent did not adequately document the transaction and did not obtain the clientís consent in writing was in violation of Mass. R. Prof. C. 1.8(a).

No harm ultimately resulted from the respondentís conduct. The respondent was admitted in 1993 and has no prior discipline. The respondent accordingly received an admonition conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-21

CLASSIFICATION:
Improper Financial Assistance to Client [Mass. R. Prof. C. 1.8(e)]

SUMMARY:
The respondent represented a client in a claim for injuries sustained in a motor vehicle accident. While the case was pending, the respondent made a small advance of funds to the client for living expenses. The respondent repaid himself this advance from a check to the client for lost wages. The client did not dispute the repayment at the time. The respondent did not charge a fee for services rendered to collect the lost wages even though the respondent filed and prosecuted a small claims action to obtain a portion of the lost wages.

Following receipt of the check for lost wages, the client retained a new attorney to represent her in the personal injury matter. The client then filed a complaint with bar counsel disputing the amount of the advance that the respondent had made to her. The respondent has since resolved the dispute with the client.

By making an improper financial advance to his client, the respondent violated Rule 1.8(e) of the Massachusetts Rules of Professional Conduct.

The respondent has been a member of the Bar since 1997 and has no history of prior discipline. The respondent received an admonition conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-22

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with a Client [Mass. R. Prof. C. 1.4]
Handling Legal Matter Without Adequate Preparation [DR 6 101(A)(2)]
Neglecting A Legal Matter [DR 6 101(A)(3)]

SUMMARY:
The client hired the respondent in January of 1995 to probate the estate of her deceased uncle, who died intestate with approximately $22,000 in assets. The client and her brother were two of eleven heirs.

In February of 1997, two years after he was hired, the respondent filed a petition for estate administration. The court returned that filing to the respondent because the respondent completed the forms incorrectly. In March of 1997, the respondent refiled the petition. The court accepted the second petition, but rejected the fiduciary bond because the respondent had improperly listed his wife as a personal surety. The respondent failed to refile a proper fiduciary bond at that time. The respondent also failed to publish the citation issued by the court on or before the return date. The respondent delayed another 15 months to July 17, 1998 before obtaining and publishing a new citation.

Between July of 1998 and January of 2001, and despite numerous telephone calls from the client and her brother, the respondent took no further action to have the client appointed administrator of the estate or to refile the fiduciary bond. The respondent did not refile the fiduciary bond until November of 2001. The court appointed the client administrator of the estate on November 23, 2001, more than six years after the respondent was hired.

After the client was appointed administrator, the respondent failed timely to complete the probate of the estate. In July of 2002, the client filed a complaint with Bar Counsel. The respondent thereafter prepared and filed the First and Final Account, which was allowed by the court on November 14, 2002.

The respondentís failure to file and conclude the administration of the estate in a timely manner constituted neglect and failure to act diligently in violation of Mass. R. Prof. C. 1.3 and Canon Six, DR 6 101(A)(3). The respondentís errors in the preparation of the petition and bond constituted inadequate preparation, in violation of Canon Six, DR 6 101(A)(2). The respondentís failure to timely respond to the clientís many inquiries between 1996 and 2001 concerning the status of the estate violated Mass. R. Prof. C. 1.4 and Canon Six, DR 6 101(A)(3).

The respondent has been a member of the bar since 1986, and has no history of discipline. Ultimately, the respondent concluded the estate. 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. 03-23

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

SUMMARY:
In December of 1998, the respondent represented the lender at a closing on residential property. The sellers were unable to transfer clear title to the buyers at closing. The parties and their counsel agreed to an escrow of $7,500 to be used to clear title and the buyers purchased the property subject to all potential claims. The title insurer issued a policy based upon the respondentís representation that he would clear title.

Between January 1999 and October of 1999, the respondent took affirmative steps to begin clearing the title using the escrowed funds. However, shortly thereafter the respondent and the sellersí attorney decided that it would be possible to clear title by researching the history of the property and presenting to the title insurer an affidavit with supporting documentation. In the spring of 2000, the sellersí attorney undertook an active role in doing the research necessary to prepare and present this documentation. By May of 2001, the sellersí attorney had provided the respondent with a draft affidavit and the necessary documentation.

Between May of 2001 and May of 2002, the respondent did not respond to numerous calls and letters from the sellers and their attorney. During this time, the respondent failed to finalize the affidavit and present it to the title insurer with a request for approval. The respondent finally submitted the affidavit and accompanying documentation in April of 2002. The insurer agreed to accept it in September of 2002, but the respondent failed to finalize the affidavit and record it until after the complaint was filed with Bar Counsel in October 2002.

The respondentís failure to take prompt action to obtain documents to satisfy the title insurer constituted neglect and failure to act diligently in violation of Mass. R. Prof. C. 1.3. The respondentís failure to timely respond to many inquiries from the sellers and their attorney concerning the status of the matter violated Mass. R. Prof. C. 1.4.

The respondent has now satisfied the title insurer on the property and the $2500 balance of the escrow funds, net after attorneysí fees to both counsel, has been refunded to the sellers.

The respondent has been a member of the bar since 1974, and has no history of discipline. Accordingly, the respondent received an admonition for his conduct in this matter.


ADMONITION NO. 03-24

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

SUMMARY:
The respondent concentrates his practice in personal injury cases. He properly used his IOLTA account for deposits of settlements, and promptly paid his clients their shares of settlements. However, the respondentís record keeping was generally inadequate. The respondent did not maintain individual client ledgers, and was unable to break down the account balance by client. Further, instead of promptly withdrawing earned fees by writing one check to himself for his contingent fees in each personal injury case, the respondent withdrew these fees piecemeal. The account also was not adequately reconciled, such that small discrepancies routinely went undetected.

The respondentís conduct in these regards constituted commingling and inadequate record keeping in violation of Mass. R. Prof. C. 1.15(a) and (e). In mitigation, he has since voluntarily attended a CLE program designated by Bar Counsel and instituted an improved electronic record keeping system. The respondent has no history of discipline and received an admonition.


ADMONITION NO. 03-25

CLASSIFICATION:
Failing to Act Diligently [Mass. R. Prof. C 1.3]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]

SUMMARY:
The client consulted the respondent in 1985 about representation in a possible case concerning the lead paint poisoning of the client's older daughter. Although the client had occasional contact with respondentís associate after 1985, the client understood that the respondent would not file a lawsuit until her daughter reached a "medical end result."

Sometime before 1998, the respondent learned that the client's younger daughter also had lead poisoning. In March, 1998, the client and respondent signed contingency fee agreements with respect to the claims of both the clientís daughters.

In May, 2002, the client met with the respondent at his office. The respondent was unable to find any file or documents concerning the claims of the daughters. The client discharged the respondent and retained new counsel who was able to reconstruct the files and pursue the daughtersí claims.

By neglecting to pursue the claims of the daughters, the respondent violated Mass. R. Prof. C. 1.3. By failing to maintain and secure the clientís daughtersí records, the respondent violated Mass. R. Prof. C. 1.15(b).


ADMONITION NO. 03-26

CLASSIFICATIONS:
Failure to Act Diligently [Mass. R. Prof. C. 1.3]
Handling Legal Matter Without Adequate Preparation [DR 6 101(A)(2))]

SUMMARY:
The respondent represented two brothers in probating the will of their father, who died in February 1996. The will left a life estate in the family home, the fatherís chief asset, to the brothersí sister and nominated the brothers as executors and residuary heirs of the estate.

Although the respondent was introduced to the daughter, he communicated with her through the brothers. He was therefore unaware that the daughter was not mentally competent.

During the summer of 1996, the respondent sent a petition for probate to one of the brothers requesting that the brothers and sister sign it. The petition for probate of the will required the petitioner to identify any heirs who were not ďcompetentĒ. The respondent paid little if any attention to the signatures on the petition returned to him and failed to notice that the sisterís ďsignatureĒ was in the form of childish block letters. The respondent filed the petition with the probate court without signifying that the daughter was not competent to assent.

In late 1998, one of the brothers notified the respondent that the Department of Mental Retardation ("DMR") had asked him to file an account in his father's estate. The respondent asked the brother why DMR was interested in the estate and was told that the daughter received some services from DMR. The respondent did not conduct an investigation into the reason for DMRís involvement and did not conclude from this information that the daughter was incompetent to handle her own affairs.

The respondent filed his First and Final account in mid January, 1999. It was allowed on January 28, 1999. One of the brothers obtained the daughter's signature on the assent to the account, which again was printed in block letters. The respondent did not take notice of this signature.

In December 2001, DMR filed a guardianship petition for the daughter. Through the guardianship proceedings, the probate court and the respondent learned that the daughter was not competent. Ultimately, one of the brothers was appointed guardian of her person, and an attorney was appointed guardian of the estate.

The respondentís failure to make inquiries into the competency of the daughter violated Mass. R. Prof. C. 1.3. and Canon Six, DR6 101(A)(2).

In mitigation, the respondentís failure to inquire into the daughterís competency caused no harm to the daughter. Her brothers continued to care for her, and it was to her benefit that they reside with her. DMRís concerns about the daughter were not related to the provisions of the will or the probate of the will.

The respondent received an admonition for his conduct and was required to attend a CLE program designated by Bar Counsel.


ADMONITION NO. 03-27

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]

SUMMARY:
On June 23, 1997, the Essex Probate Court appointed the respondent permanent guardian of a former client subject to certain limitations which allowed the client, inter alia, to participate in the management of his money. The client suffered a severe head trauma in a 1995 motor vehicle accident and, pursuant to a settlement agreement in July of 1997, received a settlement distribution in excess of $100,000.

Between August of 1997 and September of 1999, both the respondent and the client disbursed the settlement funds for the benefit of the client. The respondent, however, did not prepare and file guardianship accounts with the court. In addition, the respondent failed to provide an accounting upon request to the client. Accordingly, in May of 2002 the client filed a complaint with Bar Counsel seeking an accounting. The respondent did not prepare accounts until subpoenaed by Bar Counsel.

The respondentís failure to prepare accounts timely and to provide an accounting, upon request, to the client constituted neglect and inadequate communication in violation of Mass. R. Prof. C. 1.3 and 1.4. Also, the respondentís failure to cooperate with Bar Counsel until subpoenaed constituted a violation of Mass. R. Prof. C. 8.4(g).

In mitigation, during the relevant time period, the respondent had health problems, including a heart attack in 1998. He also had marital problems which resulted in a temporary separation from his wife. In addition, the respondentís job as co guardian with the client, and the task of maintaining records, was particularly difficult because the client was making withdrawals from his accounts without notifying the respondent. The respondent has now completed a first and final guardianship accounting and filed it with the Court.

The respondent is a sole practitioner who has been a member of the Bar since 1988, with no prior discipline. The respondent accordingly received an admonition conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-28

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a) ]
Trust Fund Accounting and Disputes [Mass. R. Prof. C. 1.15(c) ]

SUMMARY:
The respondent was admitted to practice in December 1998 and commenced the solo practice of law in February 2001. In January 2002, the respondent agreed to attend residential real estate refinance closing transactions on behalf of a mortgage service provider. The provider performs settlement services for a variety of lenders in real estate loan transactions. The respondent was settlement agent and represented both the provider and the lender.

By agreement, the provider was responsible for the title examination, title insurance, and recording. The respondent was responsible for receiving and disbursing the sale proceeds pursuant to the HUD 1 settlement statement. The understanding was that the respondent would remit his own fees as well as the providerís fees to the provider and the provider in turn would send the respondent a check for his services.

Between January and April 2002, the respondent was settlement agent for approximately 25 closing transactions. However, commencing with the first closing, a dispute arose between the respondent and the provider as to the amount of compensation that the respondent was entitled to receive. As a result of this dispute, the respondent did not remit funds to the provider from any of the closings that he handled and instead withheld both his own fees and the fees due the provider. At no time did the respondent use any of the money withheld in this manner. All funds remained intact in the respondentís IOLTA account.

In April 2002, the respondent ceased performing services for the provider. In May 2002, the provider commenced litigation. The litigation was expeditiously resolved.

The respondentís failure to remit to the provider the undisputed portion of funds that the provider was entitled to receive was in violation of Mass. R. Prof. C. 1.15(a) and (c).

The respondent, who has no prior discipline, received an admonition for the above violations.


ADMONITION NO. 03-29

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with the Client [Mass. R. Prof. C. 1.4(a)]

SUMMARY:
The respondent agreed to represent the client in a dispute with a New Hampshire bank. The client gave the respondent a retainer as an advance against the respondentís hourly fees. The respondent deposited the retainer into his operating account rather than into a client trust account. The respondent delayed nine months before sending a demand letter to the bank and delayed further in retaining out of state counsel to assist with the expected litigation. The client filed a complaint with Bar Counsel because of this lack of progress and the respondentís failure to return her telephone calls. The respondent subsequently agreed with the client to return the retainer in full and offered to pursue the dispute on a contingent fee basis. The client accepted the refund of the retainer and decided not to pursue a lawsuit.

By depositing the retainer into his office operating account rather than into a client trust account, the respondent violated Mass. R. Prof. C. 1.15(a) and (b). By failing to diligently pursue the clientís claims or to communicate adequately with the client, the respondent violated Mass. R. Prof. C. 1.3 and 1.4(a).

The respondent was admitted to practice in 1973 and has no history of discipline. The respondent received an admonition for this violation, conditioned upon his attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-30

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Responsibilities Regarding Law?Related Services [Mass. R. Prof. C. 5.7(a)(2)]

SUMMARY:
The respondent is licensed to practice law in Massachusetts and is certified as an ďenrolled agent,Ē which allows him to represent individuals in tax disputes before the Internal Revenue Service (ďIRSĒ). Enrolled agents are not required to be attorneys. Between March of 2000 and September of 2002, the respondent owned and operated a corporation located in New York City that offered tax preparation and tax representation services. The respondentís business card for this corporation identified the respondent as an attorney but did not state that he was not licensed in New York.

In March of 2000, a New York resident hired the respondent to prepare 10 years of back tax returns and also, once IRS bills issued to the client for the overdue taxes, to submit an offer in compromise to the IRS. The respondent did not explain to the client that these law?related services were not legal services or that he was representing the client only as an enrolled agent. The respondent and the client agreed to a flat fee of $5,500 for these services. Thereafter, with the clientís knowledge and consent, the respondent subcontracted the preparation of the back tax returns to another tax preparer. The back tax returns were completed and the respondent in November of 2000 filed them with the IRS.

By April of 2001, the IRS had issued bills to the client for each year that taxes were overdue. The respondent, however, did not promptly prepare an offer in compromise despite numerous requests from the client that he do so. In October of 2001, the client filed a grievance with the Office of Bar Counsel, following which the respondent returned $500 to the client. Subsequently, the client paid a tax preparer $200 for assistance and the client filed pro se the offer in compromise with the IRS.

The respondentís designation of himself as an attorney on his business card without ensuring that the client understood that the services being provided were not legal services constituted a violation of Mass. R. Prof. C. 5.7(a)(2). The respondentís failure to prepare the offer in compromise timely and to respond promptly to the clientís inquiries constituted neglect and inadequate communication in violation of Mass. R. Prof. C. 1.3 and 1.4.

The respondent has been a member of the Bar since 1987, with no prior discipline. He no longer owns or operates this tax preparation business. Accordingly, the respondent received an admonition.


ADMONITION NO. 03-31

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

SUMMARY:
The respondent represented the client in a dispute concerning intentional interference with advantageous business relations in the spring and summer of 2001. The respondent received a retainer of $2,000 to be billed against an hourly rate. He deposited the retainer into his operating account rather than into a client trust account. The dispute was not resolved despite the respondentís efforts over several months. The client requested an accounting of her retainer.

The respondent delayed in accounting for the retainer. Although the respondent had performed services that equaled the amount of the retainer, the respondent did not prepare a bill until November of 2002, after he had received notice of the clientís complaint to the Board of Bar Overseers. Part of the delay resulted from the illness and death of the respondentís brother during this period.

By failing to account for the retainer upon request by the client, the respondent violated Mass. R. Prof. C. 1.15(b). By depositing the retainer into his office operating account rather than into a client trust account, the respondent violated Mass. R. Prof. C. 1.15(a) and (d).

In aggravation, the respondent has a prior admonition for allowing a case to be dismissed and failing to notify the client of the dismissal.

The respondent attended a CLE program designated by Bar Counsel after this complaint was filed. Accordingly, the respondent received an admonition for this conduct.


ADMONITION NO. 03-32

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]

SUMMARY:
A client hired the respondent in or about October of 1999 to assert claims against a supermarket chain after a slip?and?fall on the premises on February 24, 1999. Although the respondent agreed to charge the client a one?third contingent fee, he did not execute a written contingent fee agreement. The respondent gave the supermarketís insurer notice that he represented the client and, during the first year after the accident, the insurer paid the clientís medical bills pursuant to the terms of the insurance policy.

By letter dated November 9, 2001, the insurer informed the respondent that it would not pay medical bills for dates of service on and after the first anniversary of the accident. By letter dated December 26, 2001, the insurer notified the respondent that it was denying liability for the plaintiffís injuries. Thereafter, the respondentís office incorrectly diaried the date on which the statute of limitations expired. The respondent therefore failed to file suit prior to the expiration of the statute of limitations on February 24, 2002, or to notify the client that he would not pursue this matter on her behalf so that she could consult other counsel. Following the expiration of the statute of limitations, the respondent on March 22, 2002 sent a sworn statement to the insurer asking that the insurer call him to discuss the case. When the insurer failed to respond, the respondent sent a letter to the client on December 3, 2002 informing her that the insurer had denied liability and that he was closing his file.

On December 13, 2002, the respondent forwarded the file to the client at the clientís request. At that time, he realized that his office had made a clerical error in calendaring the statute of limitations to February of 2003, instead of February of 2002. The respondent informed the client that the statute of limitations had expired in February of 2002 and he offered to compensate the client for her out?of?pocket expenses. The respondent thereafter notified his malpractice insurance carrier of the clientís claim. On January 8, 2002, the client filed a complaint with Bar Counsel.

The respondentís failure to file suit within the statute of limitations period, or alternatively to return the clientís file so that she could consult other counsel, constituted neglect and inadequate communication in violation of Mass. R. Prof. C. 1.3 and 1.4. The respondentís failure to execute a written contingent fee agreement violated Mass. R. Prof. C. 1.5(c).

The respondent is a sole practitioner admitted to practice on June 23, 1993. Since December of 2002, he has instituted a dual calendaring system so that dates are calendared manually and electronically. He has no history of discipline. It is recommended that he receive an admonition for the above violations, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-33

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

SUMMARY:
In August of 2000, a client retained the respondent to represent her in a dispute with her insurer concerning a claim for damage to a vehicle allegedly stolen in March of 2000. The respondent received a retainer of $1,000, to be billed against an hourly rate. He deposited the retainer into his operating account rather than into a client trust account.

The dispute was not resolved as the insurer denied coverage, alleging that the client was asserting a fraudulent claim. The respondent informed the client that without an additional $2,000 to hire an expert witness, he would not be able to pursue a claim on her behalf. The client did not forward the additional funds.

In the fall of 2002, the client requested a status update and an accounting of her retainer. The respondent delayed in accounting for the retainer. Although the respondent had performed services in excess of the amount of the retainer, the respondent did not prepare a bill until after he had received notice of the clientís complaint to the Board of Bar Overseers.

By failing to account for the retainer upon request by the client, the respondent violated Mass. R. Prof. C. 1.15(b). By depositing the retainer into his office operating account rather than into a client trust account, the respondent violated Mass. R. Prof. C. 1.15(a) and (d).

In aggravation, the respondent was disbarred in 1987 as a result of a criminal conviction. He was reinstated in 1994.

The respondent has returned the file to the client so that she may consult other counsel if she wishes to pursue a claim against the insurer. The respondent accordingly received an admonition for his misconduct, conditioned upon his attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-34

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

SUMMARY:
This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of receipt of a notice of dishonored checks from the bank at which the respondent maintained an IOLTA account. The notice reported that from September 11-17, 2002, eight items totaling $539.03 had been returned unpaid from the IOLTA account due to insufficient funds in the account. On October 7, 2002, three more items totaling $134.00 were returned unpaid due to insufficient funds in the account. The returned checks were for the respondent's personal and business expenses. No client funds were on deposit in the account.

The respondent opened this account in 1995 when he left his former firm. The respondent stopped practicing law in the spring of 1996 due to health problems, but did not close the account. After he stopped practicing law, the respondent used the account as a personal account, mistakenly believing that he could do so when he was not holding any client funds in the account. When the respondent began practicing law again approximately two years later, he opened a new IOLTA account for client funds, but continued using his old IOLTA account exclusively as a personal account.

The respondent's conduct in this matter was in violation of Mass. R. Prof. C. 1.15(d) and 1.15(e).

In aggravation, the respondent, who was admitted to practice in 1983, had received prior discipline. In 1993, the respondent received an informal admonition for failing to respond to a show cause order in a civil suit brought against him by an expert witness to collect his fee for testifying in a civil suit for the respondent's client. The respondent's conduct in failing to respond to process, necessitating the issuance of a capias and the filing of a disciplinary complaint, violated Canon One, DR 1-102(A)(5) and (6). In 2002, the respondent received an admonition for notarizing signatures when the signers were not present, in violation of Canon One, DR 1-102(A)(4). As a condition of the admonition, the respondent was required to attend a CLE course on the subject of legal ethics. In October 2002, after attending the CLE program and learning that his use of the old IOLTA account as a personal account was improper, the respondent closed the old IOLTA account and transferred the balance of funds to a personal account.

Where the respondent corrected this problem shortly after attending the CLE program on legal ethics, the respondent received an admonition for the above violations.


ADMONITION NO. 03-35

CLASSIFICATIONS:
Handling Legal Matter when Not Competent or without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failure to Timely Communicate Basis of Fee [Mass. R. Prof. C. 1.5(b)]

SUMMARY:
In September of 2000, a client hired the respondent to file a joint petition for permanent residency for her husband based upon their marriage. Because her husband resided in Santo Domingo and she resided in Massachusetts, the respondent subsequently offered to travel to Santo Domingo to seek a ďVĒ visa for her husband that would allow him to reside in the United States while the joint petition was pending. The client paid the respondent a flat fee of $2,000 to travel to Santo Domingo and meet with a consulate representative.

The respondent did not file an appearance with the consulate and inquire as to the status of the petition prior to making this trip. Such an inquiry is needed in order to determine whether incurring the travel expenses is worthwhile.

When the respondent in fact visited the U.S. consulate in Santo Domingo, he was told that the client and her husband had already been interviewed and that the marriage was determined to be fraudulent. Accordingly, the clientís husband was not eligible to apply for a ďVĒ visa at that time. The respondent could have obtained this information by letter or by telephone.

The respondentís failure to file an appearance with the consulate in Santo Domingo, and to determine the status of the clientís petition prior to incurring travel expenses, constituted a failure to prepare adequately in violation of Mass. R. Prof. C. 1.1.

In a second, unrelated case, the respondent charged a $3,500 flat fee to represent the client in a district court criminal proceeding. The fee would be credited against the subsequently negotiated fee for representation if the client was indicted in superior court and the district court case was dismissed. The client was indicted in the superior court and the respondent negotiated a flat fee of $10,000 for subsequent representation. The respondent, however, did not credit the client for the $3,500 in accordance with the previous agreement, due to a miscommunication between the respondent and the client as to whether the respondentís services in connection with a parallel deportation proceeding by the INS would be included in the $10,000. The respondent believed that he was entitled to credit the $3,500 toward those services and the client believed those services were included in the flat fee agreement. There was no contemporaneous writing that confirmed the partiesí discussions concerning the fee agreement. The respondentís failure to make the terms of the fee agreement for each portion of the representation clear to the client constituted inadequate communication of the basis of the fee in violation of Mass. R. Prof. C. 1.5(b). The respondent was admitted to practice in June of 1994 and has no history of discipline. In mitigation, following the complaint to Bar Counsel, the respondent returned $1,000 to the first client and subsequently followed up with the consulate in Santo Domingo and obtained approval of the joint petition for residency. Similarly, in the second case the respondent returned $3,500 to the client after the complaint was filed with the Office of Bar Counsel. The respondent received an admonition conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-36

CLASSIFICATIONS:
Neglecting a Legal Matter [DR 6-101(A)(3)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
The respondent was retained on or about July 11, 1995 to file a motion to withdraw guilty plea or a motion for new trial on behalf of a defendant who had been convicted of second degree murder and armed robbery in November 1994. The defendantís father paid the respondent $5,000.

No motion was ever filed. The defendant wrote several letters to the respondent in 2001, requesting that the respondent refund his legal fee. The respondent did not reply. The defendant filed suit against the respondent on Feb 13, 2002. The respondent failed to file an answer to the complaint. While the civil matter was pending, the defendant filed a grievance against the respondent at the Office of Bar Counsel.

The respondent did not file the motions because of inconsistencies in the defendantís statements regarding the circumstances surrounding his change of plea. However, although the respondent did not find sufficient basis for filing either motion, he never advised the defendant of this fact.

After the complaint to Bar Counsel was filed, the respondent refunded the fee in full to the defendantís father.

By failing to file the motion on behalf of the client or to explain to the client why the motion could not be filed, the respondent violated Canon Six, DR 6-101(A) (3) and Mass. R. Prof. C. 1.3 and 1.4. By failing to promptly refund the unearned portion of his fee, the respondent violated Mass. R. Prof. C. 1.16(d).

The respondent has been a member of the bar since 1974. He received a private reprimand in 1989 for incompetent and inadequate representation in a 1987 criminal case in violation of DR 6-101(A)(2) and 7-101(A)(1)(2) and (3).

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


ADMONITION NO. 03-37

CLASSIFICATIONS:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)] Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]

SUMMARY:
The respondent entered into a written fee agreement to represent a client in a legal malpractice suit against the clientís former lawyer. The agreement provided for payment of an initial $2,500 retainer, an hourly fee of $250, and periodic bills to the client for the respondentís services.

The respondent filed a complaint on the clientís behalf on July 5, 2001. Pursuant to Mass. R. Civ. P. 4(j) and the Superior Court Standing Order 1-88 tracking order standards, service of the complaint on the defendant should have been made and the return filed with the court by no later than October 3, 2001. In this case, however, the clerkís office issued a tracking order that set October 9, 2001, as the date by which service was required. The respondent caused the complaint to be served on the defendant on October 9, 2001, 94 days after the complaint was filed, and filed the return on October 15, 2001.

On October 25, 2001, pursuant to Superior Court Rule 9A, the defendant sent the respondent a motion to dismiss the complaint for failure to comply with Mass. R. Civ. P. 4(j). The respondent sent an opposition to the motion to the defendant on December 14, 2001, relying on the tracking order issued by the clerk and the fact that the defendant had suffered no prejudice as a result of the brief delay in service. The defendant filed the motion, the opposition and a request for hearing on December 31, 2001.

The respondent failed to inform the client that the defendant had filed a motion to dismiss or that he had filed an opposition to the defendantís motion. The client did not know the status of her case until she went to the court on her own on January 31, 2002, and read the pleadings pertaining to the motion. The respondentís failure to keep the client fully informed about developments in her case violated Mass. R. Prof. C. 1.4(a).

The client telephoned the respondent after she read the motion and learned from the respondent for the first time that the court would schedule a hearing on the defendantís motion. After the hearing on May 16, 2002, the court denied the defendantís motion.

In the fall of 2001, the client made several requests to the respondent for an accounting of the time he had spent on her case and for an itemized bill for his services. On December 12, 2001, the client sent the respondent a certified letter requesting an itemized bill for his services. When the respondent did not provide an itemized bill, the client sent another copy of the letter to the respondent by certified mail on January 17, 2002. The respondentís failure to provide the client with an itemized bill or other written response to these requests violated Mass. R. Prof. C. 1.4(a) (lawyer shall promptly reply to clientís reasonable requests for information), and Mass. R. Prof. C. 1.15(b) (upon clientís request, lawyer shall promptly render accounting of client funds in lawyerís possession).

The respondent received an admonition for his misconduct in this matter, conditioned upon attendance at a continuing legal education program designated by bar counsel.


ADMONITION NO. 03-38

CLASSIFICATIONS:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]
Failure to Cooperate in Bar Discipline Investigations [S.J.C. Rule 4:01 ß3]

SUMMARY:
In or around January 2000, the Committee for Public Counsel Services assigned the respondent to evaluate an inmateís request for the appointment of counsel to represent him on the appeal from the denial of his pro se motion to correct a sentencing mittimus. The respondent was to determine whether or not the issues raised by the inmate were of sufficient merit to justify the appointment of counsel. The respondent advised the client in or around July 2000, that he could not find merit to the appeal and that he would recommend that counsel not be appointed. However, the respondent indicated that there may be meritorious issues for a motion for new trial and he advised the inmate that he would agree to file such a motion. The inmate contacted the Office of Bar Counsel in October 2002, because no motion had been filed and he had not heard from the respondent since August 2000.

Bar Counsel received a similar grievance from a second inmate in November 2002. In this matter, the respondent had been to appointed represent the inmate in filing a motion for new trial. The inmate claimed that the respondent had yet to file the motion and that he was not responding to telephone calls and letters.

The respondent failed to respond to Bar Counselís inquiries regarding the two matters, necessitating a subpoena for his appearance at the Office of Bar Counsel on April 17, 2003. At the meeting, the respondent explained that he had not replied to Bar Counselís letters because he had been suffering from depression. He advised that he is now in treatment.

The respondent stated he had not filed a motion for new trial on behalf of the first inmate because, after further research and consideration, he determined that there was no merit to the motion. The respondent admitted his failure to advise the inmate of his decision and explained that he was reluctant to disappoint him. The respondent has now advised the inmate that no counsel will be appointed to represent him and that any post-conviction motions will have to be filed pro se.

The respondent also admitted that he had failed to adequately communicate with the second inmate. The respondent subsequently filed a motion for new trial on his behalf in April 2003. The motion was denied without a hearing and the respondent is in the process of appealing the decision.

The respondent has been a member of the Bar since 1987. He has no prior history of discipline. The respondentís failure to adequately communicate with his clients was in violation of Mass. R. Prof. C. 1.4. His failure to cooperate with Bar Counselís investigation was in violation of Supreme Judicial Court Rule 4:01 ß 3 and Mass. R. Prof. C. 8.4(g).

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


ADMONITION NO. 03-39

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4(g)]

SUMMARY:
In May of 2001, the client hired the respondent in connection with an appeal of a domestic relations order entered against the client in the Probate Court. The respondent and the client entered into a two-phase fee agreement, with each phase requiring a retainer of $5,000 to be billed at a rate of $175 per hour. The client paid the respondent the first $5,000 retainer. The respondent deposited this sum to his operating account rather than to a trust account as required. Phase one of the fee agreement, which required the respondent to review the transcripts and opine on the viability of an appeal, was completed to the clientís satisfaction.

The client decided to go forward with the appeal and, on January 7, 2002, the client paid the respondent the additional $5,000 required by phase two of the fee agreement. The respondent again deposited the retainer in his office account. The respondent immediately began providing the legal services required by phase two, including the preparation of a conference statement, attendance at a conference hearing scheduled by the appeals court, and drafting of an appellate brief. On May 7, 2002, the client passed away. Thereafter, the respondent filed a notice of the same with the appeals court and worked with the attorney for the estate concerning the pending appeal. Ultimately, the estate decided to dismiss the appeal and, on July 17, 2002, the respondent filed a fully executed Stipulation of Dismissal. In December of 2002, the clientís estate requested an accounting of the retainer. In January of 2003, the clientís son, who is executor of the estate, filed a complaint with Bar Counsel.

Although the respondent had performed services that equaled the amount of the retainer, the respondent delayed in accounting for the retainer. He did not prepare a bill until April of 2003, after he had received notice of the complaint to the Board of Bar Overseers by the executor of the clientís estate.

By failing to account for the retainer upon request by the clientís estate, the respondent violated Mass. R. Prof. C. 1.15(b). By depositing the retainer into his office operating account rather than into a client trust account, the respondent violated Mass. R. Prof. C. 1.15(a) and (d).

In addition, the respondent also failed to cooperate with Bar Counselís investigation, resulting in the issuance of a subpoena to compel his appearance at the Office of Bar Counsel. His conduct in this respect was in violation of Supreme Judicial Court Rule 4:01, Section 3 and Mass. R. Prof. C. 8.4(g).

The respondent was admitted to practice in 1977 and has no history of discipline. The respondent received an admonition for this conduct, conditioned upon his attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-40

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

SUMMARY:
The respondent was an associate in the satellite office of a law firm from 1993 to 2002. After the respondent had resigned as an associate and taken a job with another firm, the respondent used his key to enter the satellite office and download client contact information. The respondent arrived at the office at 9:40 a.m. on a Monday morning and was surprised to find the office empty. While he was downloading the information, the wife of a partner came into the office. The wife is an employee of the firm. The respondent told her that he was downloading contact information and she voiced no objection.

Partners in the main office of the respondentís former law firm became aware almost immediately that the respondent had downloaded the information through an e-mail that he forwarded to himself. The computer system was programmed to alert the partners in the main office to all e-mails, a fact of which the respondent was aware when he sent himself this e-mail. At the request of the former law firm, the respondent subsequently deleted this e-mail without retaining the downloaded information. Further, the respondent and his new firm agreed that neither would contact any of the individuals whose information had been downloaded.

By entering the former firmís office and downloading computer information without specific authorization from a partner of that firm, the respondent engaged in conduct adversely reflecting on his fitness to practice law in violation of Mass. R. Prof. C. 8.4(h).

In mitigation, the respondent had a longstanding personal and professional relationship with the partner who managed the satellite office and his wife. The respondent honestly believed that this partner would have no objection to his downloading this information, all of which he could have obtained through public channels. The respondentís current firm does not compete with the former firm for the same work. In addition, the respondent entered the building during regular business hours, fully expecting that there would be an employee at the office. He disclosed to the partnerís wife that he had downloaded information and, before he left, he assisted her with a computer problem.

The respondent has been a member of the bar since 1993 and has no prior discipline. He accordingly received an admonition, conditioned upon his attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-41

CLASSIFICATIONS:
Handling Legal Matter When not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Clientís Objectives or Abide by Clientís Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Conduct Adversely Reflecting on Fitness to Practice [Mass. R. Prof. C. 8.4(h)]

SUMMARY:
In March 2000, the respondent represented his client on a complaint for contempt against the client's ex-husband for his failure to pay court-ordered child support. In preparation for the court hearing on the contempt action, the respondent accessed the credit report of the husband's new wife through a credit reporting service to which he subscribed.

While the new wifeís income and assets might have been relevant to the husbandís ability to contribute to the support of his children (see Silvia v. Silvia , 9 Mass App. Ct. 339, 342 [1980]), the respondent was not entitled to obtain a credit report on the new wife because the new wife had no duty to obey a support order directed to her husband. See 15 U.S.C. ß1681b (permissible to obtain credit information about obligor in connection with collection of a court-ordered child support obligation); M.G.L. ch 93 ßß 51(a)(3)(vi) (consumer reporting agency may furnish consumer report to a person it reasonably believes intends to use the information to enforce child support orders).

The respondentís failure to conduct research into whether he could obtain a credit report on a person who was not subject to the courtís child support order violated Mass. R. Prof. C. 1.1 (lawyer shall not handle a legal matter without legal knowledge, skill, or preparation reasonably necessary for the representation). By obtaining a credit report that was not permitted by law, the respondent violated Mass. R. Prof. C. 1.2(a) (lawyer shall seek lawful objectives of client through reasonably available means permitted by law), and 8.4(h) (lawyer shall not engage in conduct adversely reflecting on fitness to practice law).

In mitigation, the lawyerís action was negligent and not a deliberate flouting of the law. The respondent has no prior discipline. He received an admonition for his conduct in this matter, conditioned upon his attendance at a continuing legal education program designated by bar counsel.


ADMONITION NO. 03-42

CLASSIFICATION:
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
On or about February 28, 2002, the respondent was appointed to represent a defendant charge with drug offenses in Suffolk Superior Court. The defendant was being held at Massachusetts Correctional Institution at Concord pending trial. The defendant contacted the Office of Bar Counsel in October 2002, claiming that the respondent had not contacted him in person, by telephone or by letter, from the date of the respondentís appointment until October 18, 2002, when the respondent advised the defendant by telephone of a plea offer from the prosecutor. During this telephone call, the respondent explained to the defendant that he had not been to visit the defendant because he does not drive due to a handicap and has difficulty traveling to the prisons. The defendant expressed his dissatisfaction with the respondent, and the respondent informed him that he would move to withdraw as counsel.

While this matter was being investigated, Bar Counsel received a similar grievance from a second defendant in December 2002. In this matter, the respondent was appointed on November 29, 2000 in Suffolk Superior Court to represent the defendant on three counts of assault and battery by means of a dangerous weapon. This defendant was also held in Massachusetts Correctional Institution at Concord pending trial. He claimed that the respondent had not visited him once in the two years since the respondent had been appointed, and that the respondent had not discussed defense strategy with him, but had merely urged him to plead guilty.

The defendant in the first matter had no defense to the charges. It was agreed at arraignment that the defendant would plead guilty to the best sentence that the respondent could negotiate. The respondent did not visit the defendant at the prison, but had left several messages with the defendantís counselor at the prison requesting that the defendant telephone him. The defendant never contacted him. The respondent was actively negotiating with the prosecutor during the eight months that he represented the defendant, but had no information to report to the defendant until October 2002. When he contacted the defendant to inform him about the plea negotiations, the defendant was too angry to listen to him. The respondent attempted to reestablish a relationship with the defendant before moving to withdraw, but he was unable to do so. He was allowed to withdraw on October 22, 2002. The defendant ultimately pled guilty on March 19, 2003.

In the second matter, the respondent did not visit the defendant at the prison, but did communicate with him in court and by telephone. The respondent discussed defense strategy with the defendant and had advised the defendant about the issues for trial in the case. The defendant understood that there was a substantial likelihood of conviction and a heavy sentence after trial and agreed to plead guilty if the respondent could negotiate an acceptable sentence. The defendant was aware of the progress of the plea negotiations. He became dissatisfied with the respondentís efforts and filed a motion for appointment of new counsel to represent him. New counsel was appointed on January 15, 2003. The defendant pled guilty on April 17, 2003 and received the same sentence that the respondent had negotiated prior to being discharged.

The respondent did not visit the clients in these two matters because the respondent does not drive and has difficulty getting to the prison at the Massachusetts Correctional Institution at Concord and other facilities that are not accessible by public transportation. Thus, the respondentís policy has been to communicate with clients held in certain facilities by telephone and by meeting with them in court. The respondent generally did not visit a client held in a distant prison unless he believed it was necessary or unless the client specifically requested a visit.

The respondentís failure to visit clients who were imprisoned in certain facilities was in violation of the performance standards of the Committee for Public Counsel Services and Mass. R. Prof. C. 1.4. The respondent agrees that he will no longer accept appointments to represent clients who are held in facilities that are not accessible by public transportation, and that he will visit all of his clients who are held in custody in lieu of bail.

The respondent has been a member of the bar since 1981. He received an admonition in 1997 for neglect of a housing court matter. The respondent received an admonition for his conduct in these cases.


ADMONITION NO. 03-43

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
The respondent represented a mortgage company in a foreclosure of two mortgages on the same residential property. Prior to the foreclosure sale the mortgagors were able to obtain refinancing. The proceeds of the refinancing, $136,740.04, were transmitted to the respondent and received by his office between May 31, 2001 and June 4, 2001. At the time the checks were received by the respondent, his office was in the midst of moving, and, as a result, the checks were misplaced.

In August, 2001, an employee of the respondent found the checks and deposited them into the respondentís "Client Escrow" account, where the funds remained for several months. The respondent did not cause the funds to be transmitted to the lender.

On March 12, 2002, the mortgagors learned that their mortgages had not been discharged and so notified the respondent. The respondent sent checks for $130,000, the amount which he believed was sufficient to pay off the two mortgages. In calculating that the amount outstanding was $130,000, the respondent deducted his attorney's fees and costs from the gross amount, as this had been his practice in his dealings with the mortgage company. The respondent subsequently learned that the amount was not sufficient because the mortgages had been transferred to a new company, which had different bookkeeping practices. The respondent then forwarded a check to cover the additional amount due. Shortly thereafter the remaining mortgage was discharged.

The respondent at all times had sufficient funds in his account to pay off the mortgages. The respondent improved his bookkeeping practices by hiring a full time bookkeeper, who reconciles his trust accounts on a monthly basis.

The respondentís conduct in failing to safeguard the proceeds of the refinancing and failing to reconcile his trust accounts violated Mass. R. Prof. C. 1.15(a). The respondent's failure to promptly transmit the proceeds of the mortgagor's refinancing to his client violated Mass. R. Prof. C. 1.15(b), and constituted a lack of diligence in violation of Mass. R. Prof. C. 1.3.

The respondent received an admonition for his conduct.


ADMONITION NO. 03-44

CLASSIFICATIONS:
Failure to Timely Communicate Basis of Fee [Mass. R. Prof. C. 1.5(b)]
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 May 1999 a new client retained the respondent for representation in connection with a divorce proceeding pending in Connecticut. At that time, the client desired the respondent to review certain financial records and to evaluate decisions made by Connecticut counsel. At the initial consultation, the client paid the respondent a $7,500.00 fee.

In December 1999 the client paid the respondent an additional $10,000 fee. At that time, the client and the respondent anticipated that the respondent would enter an appearance pro hac vice in the Connecticut case.

The respondent intended that the fees paid represented flat fees for specific services. The respondent deposited each check in his law office operating account based on his belief that the fee was understood to be a flat fee. However, there was no written fee agreement and the respondent did not adequately explain to the client the scope of services or the basis or rate of his legal fee. The client had no specific understanding of the fee arrangement and assumed that the respondent was charging on an hourly rate basis.

In January 2000, the client retained Connecticut trial counsel and thereafter wrote to the respondent twice (October 27, 2000 and December 14, 2000) for an accounting. The respondent did not reply and in August 2001 the client filed a complaint with Bar Counsel. In September 2001, at least ten months after the client made his first written request for an accounting and after he filed his complaint with Bar Counsel, the respondent sent the client his first bill and returned the balance of funds that the respondent determined had not been earned. The client continued to dispute the respondentís calculations.

The respondentís failure to adequately explain the scope of his services or the basis and rate of his fee for those services was in violation of Mass. R. Prof. C. 1.5(b). The respondentís failure to timely account and to timely return the unearned portion of a fee upon request was in violation of Mass. R. Prof. C. 1.15(b) and 1.16(d).

In aggravation, the respondent in 1987 received a private reprimand for neglect of two different client matters.

In mitigation, during the time period in question, two of the respondentís children and the respondent himself were suffering from serious medical problems. These issues have been substantially resolved. In addition, the respondentís practice was overburdened. The respondent has taken steps to address these issues including hiring additional staff, decreasing the volume of cases and improving his office procedures. The respondent has also agreed to resolve the ongoing fee dispute in any forum chosen by his client and has placed funds in escrow to pay any award that enters against him.

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


ADMONITION NO. 03-45

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

SUMMARY:
The respondent represented a client on a contingent fee basis in a contract dispute and in late 1995 brought an action on behalf of the client against two individual defendants and a corporation. The parties settled the action in July 1998 for payment of $25,000.00 from one individual defendant and $1,500.00 from the other individual defendant. The $1,500.00 settlement represented a nuisance value settlement from a defendant that was judgment proof. The respondent explained to his client that he did not expect to receive the second $1,500.00 portion of the settlement. In September 1998, the respondent received the $25,000.00 settlement and paid the client his share.

In June 2000, the client complained to Bar Counsel alleging that the respondent had not taken action to enforce and collect the $1,500.00 settlement. At this time, the client assumed that the settlement had not been paid. Prior to Bar Counselís investigation of the complaint, the respondent also assumed that the settlement had not been paid. In fact, the settlement was paid in October 1998. The respondent was unaware that the $1,500.00 settlement had been received because of confusion caused by the dissolution of the law office where the respondent was employed at the time. The settlement funds were mistakenly deposited in a law firm IOLTA account that the respondent did not control. The respondent was not expecting to receive payment on this portion of the settlement and was unaware that the firm had deposited the check in the firmís IOLTA account.

After the complaint was filed with Bar Counsel, the respondent realized his error and disbursed the entire settlement sum to his client.

The respondent violated Mass. R. Prof. C. 1.15(b) by failing to notify the client of receipt of the settlement check and failing to disburse the settlement proceeds to the client in a timely manner.

The respondent has been a member of the bar since 1978. He received an admonition for the above misconduct conditioned upon attendance at a continuing legal education program designated by Bar Counsel.


ADMONITION NO. 03-46

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)]

SUMMARY:
The respondent was named executor in the will of a client. The client died on March 28, 2001. Her estate consisted of bank accounts and personal property totaling approximately $43,000.00.

The respondent distributed all specific bequests and made partial distributions to the clientís heirs on or about February 4, 2002. He advised the heirs that final distribution would be made in or around April 2002. However, the respondent failed to make the final distribution and failed to reply to telephone calls from the heirs regarding the matter.

The heirs contacted the Office of Bar Counsel for assistance in August 2002. The respondent failed to reply to Bar Counselís inquires, necessitating a subpoena to compel his appearance at the Office of Bar Counsel on February 20, 2003. After meeting with Bar Counsel, the respondent made final distribution of the assets in the estate on February 26, 2003. However, he did not finalize the estate by filing the inventory and final account until three months later.

The respondentís failure to promptly disburse estate assets, failure to file the inventory and final account and failure to reply to inquiries from the heirs of the estate violated Mass. R. Prof. C. 1.3. His failure to respond to Bar Counselís inquiries about the matter violated Mass. R. Prof. C. 8.4(g) and Supreme Judicial Court Rule 4:01 ß3.

The respondent has been a member of the bar since 1975. He has no history of discipline. 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. 03-47

CLASSIFICATION:
False or Misleading Communication [Mass. R. Prof. C. 7.1]

SUMMARY:
The respondents are two brothers whose father had a successful law firm in Providence, Rhode Island, for many years under the family name. The respondents maintain their law office in Providence, Rhode Island, but the respondents are only admitted to practice law in Massachusetts. A principal of the firm who is admitted to the Rhode Island bar is married to one of the respondents, and the firm also employs other attorneys who are admitted to practice in Rhode Island.

The firm advertises in Rhode Island, and most of the clients are from Rhode Island. Until 2000, the firm ran a full-page advertisement in the Yellow Pages featuring the respondents and the wife as principals of the firm without any indication that only the wife was admitted to the Rhode Island bar. In addition, the firm had a Web site that included the respondentsí biographies. Those biographies represented that the respondents were licensed to practice in Massachusetts and were members of the ďRhode Island Bar AssociationĒ without stating that these memberships were as ďassociatesĒ and that neither respondent was licensed to practice law in Rhode Island. In addition, although the Web site reported this information from 1997 to 2002, one respondent was an associate member only in 1996 to 1997.

The respondents have corrected the Web site and the Yellow Pages listing by clearly stating that the respondent are licensed in Massachusetts. The biographies on the Web site have dropped the supposed membership in the Rhode Island Bar Association and also list Massachusetts as the only jurisdiction in which the respondents are licensed to practice law.

The respondents received an admonition for violations of Mass. R. Prof. C. 7.1 (a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services).


ADMONITION NO. 03-48

CLASSIFICATIONS:
Conflict from Responsibilities to Another Client or Lawyerís Own Interests [Mass. R. Prof. C. 1.7(b)]
Failure to withdraw Generally [Mass. R. Prof. C. 1.16(a)(1)]

SUMMARY:
The respondent represented a client on a contingent fee basis in a suit against the estate of her next door neighbor for services rendered to the neighbor before his death. On August 5, 1999 the respondent filed an equity complaint in Middlesex Superior Court on the clientís behalf. On December 29, 1999, the executor, who was also the sole beneficiary of the estate, filed an answer and a motion to for leave to file counterclaim. The court allowed the motion on January 20, 2000 and a counterclaim was filed.

The claims were mediated on October 19, 2001. According to the client, the mediator advised that the client did not have a good case. After the mediation, the client told the respondent that she wanted him to dismiss her claim against the estate if an agreement was not reached by November 1, 2001. The respondent replied by a letter dated October 23, 2001 and informed the client that he would base his legal fees on the hours he worked on her case to date. He asked the client to contact him to discuss the matter further.

On April 17, 2002, the respondent sent the client an e-mail stating that the executorís attorney had advised him that the client and the executor had agreed to resolve matters by jointly selling the clientís home and the estate property to a developer. The respondent asked the client to contact him about his legal bill. On April 19, 2002, the respondent sent the client a follow-up letter. In his letter, the respondent advised the client that he would sue her if she did not contact him about his bill. On April 22, 2002, the client sent the respondent a letter instructing him to dismiss her suit and obtain a dismissal from the heir.

On May 2, 2002, prior to the execution of any stipulation of dismissal, the respondent filed suit against the client in district court for unpaid legal fees. The respondent calculated his $23,705.00 bill on an hourly basis and attached it to the complaint as an exhibit. In addition to filing suit against the client, the respondent moved for, and was granted, a $24,500 ex-parte attachment on her home.

On May 6, 2002, the respondent forwarded the client a draft stipulation of dismissal that he had received from the executorís attorney on May 2, 2002. Two days later, the client was served in-hand with the respondentís complaint for his legal fees.

On May 13, 2002, the respondent forwarded the client an executed copy of the stipulation of dismissal that was signed by the executorís attorney and the respondent as counsel to the client. The stipulation of dismissal of both the clientís claim and the executorís counterclaim was filed on June 7, 2002.

The client filed a Declaration of Homestead followed by a petition for personal bankruptcy on June 21, 2002. On July 2, 2002, a default judgment entered against the client in the suit filed by the respondent. The respondent then filed an adversary proceeding in the bankruptcy court on July 5, 2002. However, because the client was entitled to retain $300,00.00 in equity for her home as a result of her Declaration of Homestead, the respondent agreed to dismiss the adversary proceeding. An agreement for judgment avoiding the lien was issued on September 24, 2002. The client then sold her home and the respondent recovered nothing.

By filing suit against his client for his legal fees while he was still her attorney of record, the respondent violated Mass. R. Prof. C 1.7(b) and 1.16(a)(1).

The respondent has been a member of the Massachusetts Bar since 1969 with no prior discipline. He received an admonition for his conduct in this matter, conditioned upon his attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-49

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

SUMMARY:
The respondent was retained to represent a client in a divorce matter in July 1998. Trial was held on multiple dates in 2000. On January 29, 2001, judgment entered ordering, in relevant part, that the wife should receive half of the clientís pension and $20,000.00 in legal fees.

The respondent received the findings and judgment from the court on February 2, 2001and forwarded them to the client on February 5, 2001. The respondent and the client met to discuss the courtís decision on February 14, 2001. The respondent advised the client that there was little chance of success on appeal, but they agreed that a motion for reconsideration would be filed. The respondent incorrectly believed that the motion was due 30 days from the date of the judgment. The respondent subsequently learned that the deadline for filing was 10 days from the date of the judgment and that the deadline had passed. Consequently, no motion was filed.

The client then advised the respondent that he had been diagnosed with a serious illness. The respondent agreed to try to modify the courtís order. The respondent made some unsuccessful attempts to negotiate with opposing counsel, but failed to file a motion for relief judgment or a complaint for modification or to take any other action on the clientís behalf. The respondent also failed to keep the client apprised of the status of the matter and did not return the clientís calls after August of 2001. The client discharged the respondent in November 2001.

The respondentís failure to timely file the motion for reconsideration of the judgment, his later failure to take any action to modify the courtís order, and his inadequate client communication constituted conduct in violation of Mass. R. Prof. C. 1.3 and 1.4. He accordingly received an admonition conditioned on attendance at a CLE program recommended by Bar Counsel.


ADMONITION NO. 03-50

CLASSIFICATIONS:
Failing to Seek Clientís Lawful objectives or Abide by Clientís Decisions to Settle or Enter Plea [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
The respondent was retained by a client to represent him in a contempt complaint brought by his former wife. The contempt case was heard on August 2, 2000. With the clientís knowledge and consent, the respondent admitted that the client had failed to comply with the agreement and that he owed $50,000 in child support payments for the seven years that he had failed to pay support. The parties presented this information to the court and the court found the client in contempt and ordered him to pay $50,000 in arrears. Subsequently, on September 15, 2000, the parties appeared in court and agreed to a payment schedule.

The client paid approximately half of the arrearages to his former wife in a timely manner pursuant to the payment schedule and the respondent considered the matter to be closed. However, the client contacted the respondent in the fall of 2002, and expressed his dissatisfaction with her handling of the case. Based on conversations that he had had with other attorneys, the client questioned the respondentís interpretation of the law and the validity of the courtís $50,000.00 order. The respondent advised against reopening the case and suggested that, if the client disagreed with her advice, he should consult other counsel. However, the client was adamant that the respondent should take action and the respondent agreed to do so.

The respondent drafted a motion for relief from judgment and sent a copy to the client. She agreed to file the motion and informed the client that it would be filed on or about November 13, 2002. Subsequently, on or about November 15, 2002, the clientís former wife filed another contempt complaint against him due to his failure to make the annual arrearage payment that was due on October 8, 2002. The contempt hearing was scheduled for January 15, 2003. The client forwarded the complaint to the respondent on or about November 25, 2002 and asked her to file a response. The respondent agreed to file an answer to the complaint.

The respondent had reservations about the viability of the motion for relief from judgment. However, rather than notify the client of her concerns and withdraw from the representation, she stopped responding to the clientís telephone calls and letters. She also failed to file either the motion for relief or an answer to the complaint for contempt. As a result, the client represented himself at the contempt hearing. He negotiated a settlement whereby he would pay the outstanding arrearage and his current support order through an assignment of his wages, pursuant to a revised payment schedule.

The respondentís failure to file a motion for relief from judgment and an answer to the contempt complaint after advising the client that she would do so was in violation of Mass. R. Prof. C. 1.2 (a) and 1.3. Her failure to advise the client that she no longer wished to represent him and to withdraw from the representation was in violation of Mass. R. Prof. C. 1.4 and 1.16 (d).

The respondent has been a member of the bar since 1977. She has no history of discipline. She received an admonition for her conduct in this matter, conditioned upon her attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-51

CLASSIFICATION:
Conduct Prejudicial to the Administration of Justice [DR 1-102(A)(5)]

SUMMARY:
The respondent was the prosecutor in a murder case in which the defendant raised the insanity defense. The defendant was found not guilty by reason of insanity on some charges but was convicted on others. Although the conviction was upheld on appeal, the Supreme Judicial Court determined that the respondent had engaged in an improper closing argument. Among other things, respondent had improperly exhorted the jury to consider the rights of the victims and do justice for them, ridiculed the trialís emphasis on the state of mind of the defendant, disparaged the defendantís psychiatric experts, and encouraged the jury to ignore their responsibility under the law by disregarding the issue of his mental condition. In so doing, the respondent breached his obligation as a prosecutor to state the evidence fairly and avoid invoking the sympathy of the jury.

The respondentís improper remarks in his closing argument violated Canon One, DR 1 102(A)(5). He received an admonition for his misconduct.


ADMONITION NO. 03-52

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

SUMMARY:
This matter came to Bar Counsel's attention pursuant to Mass. R. Prof. C. 1,15(f) as the result of receipt of a notice from a bank of dishonored check in the amount of $169,410.33, drawn on the respondent's IOLTA account.

The underlying problem was a simple error that did not implicate any disciplinary issues. However, review of the records of the respondent's trust account showed that the respondent, a conveyancing attorney, was routinely issuing checks from his trust account to pay for municipal lien certificates in real estate closing matters before receiving any supporting deposits. The respondent issued these checks against a small amount of personal funds that he maintained in the account for this purpose and repaid the account upon receipt of the closing funds.

By repeatedly failing to ensure receipt and collection of trust funds prior to making disbursements against those funds and by maintaining personal funds in the account for purposes other than payment of bank charges, the respondent violated Mass. R. Prof. C. 1.15(a) and (d). Accordingly, he received an admonition conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-53

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

SUMMARY:
The respondent represented one of two equal owners of the stock of a corporation in a business dispute with the other owner of the corporationís stock.

The respondent's client gave the respondent checks for about $1500 payable to the corporation. The checks were payments from customers for services rendered by the business. The respondent wrote opposing counsel that the checks would be deposited to an escrow account for the business and held in escrow pending either resolution of the dispute or a court order.

After the respondent deposited the checks into the escrow account,and before the dispute was resolved, the respondent paid the escrowed funds to his client's wife, an alleged creditor of the business, without notifying opposing counsel in advance. This payment was made at the clientís request. There was no court order authorizing the release of the escrowed funds, and neither party had sought such an order.

By distributing the escrowed funds without mutual agreement or court order, the respondent violated Mass. R. Prof. C. 1.15(b).

The respondent has been a member of the bar since 1995 and has no previous history of discipline. He received an admonition for the above misconduct conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-54

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. of Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)]

SUMMARY:
On February 8, 2000, a client retained the respondent to file a Chapter 7 individual bankruptcy petition. At this meeting, the client paid the respondent a $1,400 flat fee to cover all work associated with the bankruptcy, including the $200 filing fee, and gave the respondent copies of all relevant documents, except a copy of the deed to his home, which he subsequently provided to the respondent to enable her to file a declaration of homestead.

Nearly three years later, in January 2003, the bankruptcy petition still had not been filed, and the client wrote to the Office of the Bar Counsel. Throughout the intervening three-year period, the client, on many occasions, had called the respondent, or stopped by her office, trying unsuccessfully to obtain information about the status of his bankruptcy petition.

In March 2002, the client wrote the respondent and told her that he would file a complaint with the Office of the Bar Counsel, if he did not hear from the respondent as to the status of his bankruptcy petition. This prompted a letter from the respondent, who wrote requesting another copy of the deed to the clientís house and an additional $250. The client sent the respondent a $250 money order and a second copy of the deed. The money order was never cashed.

The respondent moved her office from one town to another in both the fall of 2001 and the fall of 2002. During the latter move, the respondent lost the clientís file, and it was not until the client filed a complaint with Bar Counsel in January 2003 that she located the clientís file and obtained a copy of the clientís deed herself from the Registry of Deeds. At the clientís request, made through Bar Counsel, the respondent returned the file to the client.

By failing to file the bankruptcy petition and homestead exemption for a period of three years, the respondent neglected a legal matter entrusted to her, in violation of Mass. R. Prof. C. 1.3. The respondent also failed to adequately communicate with her client, in violation of Mass. R. Prof. C. 1.4(a). In aggravation, the client suffered economic harm, including a wage attachment that might otherwise have been avoided had the bankruptcy been filed in 2000. In mitigation, the respondent voluntarily refunded the fee in full.

The respondent received an admonition for her misconduct in this matter, conditioned upon her attendance at a continuing legal education course designated by Bar Counsel.


ADMONITION NO. 03-55

CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Seek Clientís Lawful Objectives [Mass. R. Prof. C. 1.2(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately With Client [Mass. R. Prof. C. 1.4(a)]
Withdrawal Without Protecting Client [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
In 1998, the respondent, as a volunteer lawyer at a legal services office, undertook to represent a legal services client in a consumer claim. The respondent had just been admitted to practice, and she then had no litigation or other legal experience. Some months later, the respondent left the legal services office. She agreed at that time to continue handling the clientís case on her own, with guidance available from the legal services staff on request.

The respondent commenced a district court lawsuit on the clientís behalf in 1999. Although the respondent was unfamiliar with district court practice and procedure, she did not obtain assistance from the legal services staff or other competent counsel. The lawsuit was dismissed without prejudice in the fall of 2000 for failure to prosecute. The respondent received notice of the dismissal but failed to inform her client or take any action to revive the case between the fall of 2000 and the summer of 2001. The respondent was ill during that period and underwent evaluation for a serious medical condition. This illness contributed to the respondentís delay in attending to the matter.

The client filed a bar discipline grievance against the respondent in the fall of 2001. The respondent then communicated with both the client and the legal services staff, who referred the client to pro bono counsel. The new attorney was able to commence another action for the client within the statute of limitations.

The respondentís failure to provide competent representation, act with reasonable diligence and promptness, and keep the client reasonably informed about the status of the case violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3, and 1.4(a). The respondentís failure to effect a timely withdrawal and take adequate steps to protect the clientís interests upon the termination of her representation violated Mass. R. Prof. C. 1.16(d).

The respondentís misconduct was mitigated by her inexperience and her illness, which affected her ability to attend to her obligations. The respondent received an admonition conditioned on her attendance at a CLE course designated by bar counsel.


ADMONITION NO. 03-56

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
On January 9, 2001, the respondent filed litigation in Superior Court against a contractor and subcontractor on behalf of a homeowner. The client claimed property damage and emotional distress resulting from a repair to her heating system. Specifically, the client alleged that the subcontactor negligently repaired the system, causing asbestos to be released into the home.

On February 21, 2002, pursuant to Superior Court Rule 9A, the subcontractor sent the respondent a motion for entry of final judgment for the failure to respond to discovery. The respondent needed additional information from the client to reply to the discovery, but he did not notify his client of receipt of this motion and did not file any opposition within the requisite time period. On February 28, 2002, the case against the subcontractor was dismissed due to a failure to respond to discovery. The respondent took no action to reinstate the case and did not notify the client of the dismissal when it entered.

On April 30, 2002, pursuant to Superior Court Rule 9A, the remaining defendant, the contractor, sent the respondent a motion for entry of final judgment for the failure to respond to discovery. The respondent did not notify his client of receipt of this motion and did not file any opposition within the requisite time period. However, the court never acted upon the motion.

In August 2002, the client telephoned the respondent and left messages. The respondent did not return the calls. In September 2002, the client contacted Bar Counsel, who also attempted to telephone the respondent. Again, he did not return the calls.

In December 2002, the client called the court and learned that her case against the subcontractor had been dismissed. On December 31, 2002, the client wrote to the respondent and asked for her file. The respondent did not respond. In January 2003, the client filed a complaint with Bar Counsel. Bar Counsel sent the complaint to the respondent, asking for a reply within 20 days. On February 10, 2003 the clientís successor counsel wrote to the respondent, again requesting the file. The respondent mailed the file to the client on February 14, 2003.

The respondentís neglect of the clientís case and inadequate communication with his client was in violation of Mass. R. Prof. C. 1.3 and 1.4. The respondentís failure to promptly return his clientís file upon request was in violation Mass. R. Prof. C. 1.16(e).

No ultimate harm resulted from the respondentís conduct. Successor counsel obtained relief from the final judgment against the subcontractor subject to the payment of a sanction. The client paid the sanction and the respondent reimbursed his client. The respondent, who has no prior discipline, received an admonition for the above misconduct, conditioned upon attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-57

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

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

The respondent is a conveyancer. The dishonored check represented the net proceeds to a borrower in a refinance transaction that closed on February 7, 2003, with a disbursement date, after the three-day recission period, of February 12, 2003. The check was issued from the respondentís account on February 11, 2003 and presented for payment late that same afternoon, before the mortgage proceeds were received. The respondent issued the check without confirming that the lender had wired the mortgage proceeds into her IOLTA account. The loan was in fact funded by wire transfer on February 12, 2003, consistent with the disbursement date on the HUD-1 settlement statement. The check was subsequently resubmitted and paid.

The respondentís distribution of funds prior to receiving the supporting deposit was in violation of Mass. R. Prof. C. 1.15(a).

The respondent was admitted in 1995 and has no prior discipline. In a prior unrelated matter, the respondent was cautioned by Bar Counsel on October 3, 2002 that it was her responsibility in every transaction to confirm with her bank that mortgage funds were credited to her account before disbursement checks were issued. She accordingly received an admonition, conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-58

CLASSIFICATIONS:
Neglecting A Client [DR 6 101(A)(3)]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Handling Legal Matter Without Adequate Preparation [DR 6 101(A)(2)]

SUMMARY:
In February of 1985, the respondent filed a medical malpractice claim for the clients in the superior court alleging that the doctor who delivered their son on December 28, 1982 did so negligently. The respondent did not prevail at the medical malpractice tribunal, and on December 17, 1986, the respondent posted the $2,000 bond from his personal funds to proceed with the case. During the next several years, the respondent engaged in discovery on behalf of the clients, but was unable to find an expert to testify at trial. Similarly, the respondent was unsuccessful in engaging a law firm that specialized in medical malpractice as co counsel.

In 1992, the case was dismissed at the pretrial stage because the respondent was unable to procure expert testimony. Although the respondent had informed the clients that he had been unable to procure expert testimony and could not go forward without such testimony, he failed to notify the clients when the case was dismissed. Between 1992 and 2002, the respondent had further communications with the clients concerning the case but failed to appreciate that they did not understand that the case had been dismissed. In addition, the respondent, who was admitted to practice in 1956, was unaware of the statutory changes that shortened the statute of limitations for minors filing medical malpractice claims. Because the son was still a minor, the respondent believed, incorrectly, that the statute of limitations had not expired and that the case could be refiled. The clients did not become aware of the 1992 dismissal until the fall of 2002, after filing a complaint with the Bar Counsel.

By failing to clearly inform the clients on and after 1992 that the case had been dismissed, the respondent violated Canon Six, DR 6 101(A)(3) and Mass. R. Prof. C. 1.4(a). By failing to research the statute of limitations issue, the respondent violated Canon Six, DR 6 101(A)(2). In mitigation, the respondent had made reasonable efforts to locate an expert and had expended his own funds to prosecute the case while doing so. The respondent has no history of discipline. Accordingly the respondent received an admonition for this conduct.


ADMONITION NO. 03-59

CLASSIFICATIONS:
Handling Legal Matter When Not Competent or Without Adequate Preparation [Mass. R. Prof. C. 1.1]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]

SUMMARY:
In October 1999 the respondent was contacted by an individual and set up a meeting to discuss options for dealing with Massachusetts Department of Revenue (ďDORĒ) tax liens on her home. The woman had acquired the home as part of her divorce, subject to liens incurred by her ex husband. The woman and her father met with the respondent on October 14, 1999. The father held 3rd, 4th, and 5th mortgages on the property. The daughter was not making payments on the mortgages but the father did not care. At the initial conference, the respondent suggested that he could represent the father in a foreclosure on the property and that this would clear the junior DOR liens. The decision was made to foreclose on the 4th mortgage. The daughter understood that the respondent was representing her father.

The complaint for foreclosure was filed in land court on May 22, 2000. The judgment for entry and sale entered August 18, 2000. Between August 18, 2000 and October of 2000, the respondent did not work on the matter.

The respondent did not explain to the father that his plan might result in the property being purchased at a public sale by a stranger who could then seek to evict the daughter from the property. On October 6, 2000, the father telephoned the respondent seeking a status update. The respondent stated that the sale date had not been set, that he was trying to avoid having the notice of sale published, and that following the sale, the father would own property free and clear of liens. On October 12, 2000, the respondent sent a letter to father, again indicating that no foreclosure date had been set, that he would continue to attempt to keep a notification of the sale of the property from being published and that once the sale of the property occurred, the property would be owned by the father.

The respondent did not research the notice requirements of a foreclosure and was unaware of the statutory requirement that DOR be notified of the sale. The respondent also did not explain to the father that the DOR liens would expire by operation of law within six years of recording date unless renewed and that some of the liens were about to expire.

In the fall of 2000, the daughter began to question the respondentís competence and lack of progress in handling the matter. She asked another lawyer for an opinion and learned that there were risks to the respondentís plan, including a risk to her credit rating and the loss of her home. She communicated her concerns to her father. The father discharged the respondent by letter dated November 20, 2000 and a fee dispute ensued, resulting in a complaint to Bar Counsel.

The respondent had never personally handled a foreclosure to conclusion before. He did not thoroughly research the matter and did not appreciate the risks of his plan to the father and the daughter including the fact that notice of the sale would have to be published. The respondentís lack of competence and resulting inadequate communication was in violation of Mass. R. Prof. C. 1.1 and 1.4.

The foreclosure was never published or consummated and no harm ultimately resulted. The DOR liens have since expired or are due to soon expire. The respondent has no prior discipline. The respondent received an admonition conditioned on attending a CLE program recommended by Bar Counsel.


ADMONITION NO. 03-60

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

SUMMARY:
A client retained the respondentís law office in April 2001 to amend her estate plan. On April 17, 2001, the respondent's associate met with the client at her home. The associate presented the client with an amendment to a real estate trust for her signature. The client signed the amendment, but the associate failed to notarize the clientís signature. Sometime thereafter, while reviewing the document, the respondent noticed that the jurat on the trust amendment had not been executed. The respondent telephoned the client who confirmed that the signature on the document was hers. Based on this telephone call and the assurance of his associate that the client had in fact signed the document, the respondent notarized the amendment, stating that the client had appeared personally before him and acknowledged her signature as her free act and deed.

There is no exception to the requirement that an affiant must appear in person before the notary who executes the jurat. The respondent's conduct in notarizing the signature of a person who was not present before him, even without wrongful intent and with no harm resulting, violated Disciplinary Rule 8.4(c ).

The respondent received an admonition for this conduct conditioned upon his attending a CLE course designated by Bar Counsel.


ADMONITION NO. 03-61

CLASSIFICATIONS:
Failure to Act Diligently [Mass. R. Prof. C. 1.3]
Failure to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Failure to Cooperate in Bar Discipline Investigations [Mass. R. Prof. C. 8.4 (g)]
Failure to Cooperate In Bar Counsel Discipline Investigation [S.J.C. Rule 4:01 3]
Failure to Respond to a Lawful Demand for Information from a Disciplinary Authority [Mass. R. Prof. C. 8.1(b)]

SUMMARY:
The client hired the respondent in about March of 1998 to probate the estate of her deceased father. The respondent timely filed the state and federal estate tax returns in November 1998. The IRS audited the estate return. The IRS completed its audit in approximately November of 2001 and a Federal Closing Letter issued on November 15, 2001.

The respondent failed to take any action following the issuance of the Federal Closing Letter. The client called the respondentís office several times but the respondent failed to return her calls. On August 5, 2002 the clientís son wrote to the respondent but received no reply to his letter. The client sent another letter to the respondent on October 14, 2002 threatening to file a complaint with the Board of Bar Overseers if the respondent did not complete the estate. The respondent did not reply to that letter.

The respondent failed to reply to correspondence from Bar Counsel, necessitating the issuance of a subpoena to compel his appearance. The respondent failed to appear in response to the subpoena. The respondent finally took action on March 27, 2003 when a petition for administrative suspension was filed.

The respondent has since filed the Federal Estate Closing letter with the Massachusetts Department of Revenue, met with his client, and drafted the First and Final Account to be filed upon receipt of the Massachusetts Estate Closing letter.

By failing to return his clientís phone calls and respond to her letters, the respondent failed to communicate with the client regarding the status of the estate in violation of Mass. R. Prof. C 1.4.

By failing to submit the Federal Estate Closing letter to the Massachusetts Department of Revenue and failing to close the estate in a timely manner, the respondent failed to represent his client diligently in violation of Mass. R. Prof. C 1.3.

By failing to respond to Bar Counselís letters and subpoena, the respondent violated SJC Rule 4:01, ß3, and Mass. R. Prof. C. 8.1(b) (lawyer shall not fail to respond to a lawful demand for information from a disciplinary authority) and Mass. R. Prof. C. 8.4 (g) (a lawyer shall not fail without good cause to cooperate with Bar Counsel).

The respondent has been a member of the bar since 1995. He has no prior disciplinary history. He has taken the appropriate steps to close the estate. 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. 03-62

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

SUMMARY:
The respondent represented two women in the purchase of certain real estate in 1998. The couple resided at the premises with an adopted child. Record title to the home was held by the grandmother of one of the women in common with the other woman (ďMaryĒ). The granddaughter did not hold title because she had credit problems. The grandmother did not reside at the property.

In August 2001, the couple decided to refinance. The respondent was contacted by the couple and asked to prepare a power of attorney (POA) from the grandmother to the granddaughter. The grandmother had physical limitations and did not wish to travel to the closing. The respondent agreed to prepare a POA and have it executed, but declined to represent any of the parties in the closing transaction.

The lender required that the POA instead run from the grandmother to Mary, not the granddaughter, because Mary was the co borrower of record. The respondent notarized what appeared to be the grandmotherís signature on a POA running from the grandmother to Mary. The grandmother was not present when the respondent notarized the POA and did not in fact sign the document.

Just prior to the closing, the respondent went to the grandmotherís home in order that the grandmother could execute the mortgage. The respondent notarized the grandmotherís signature on the mortgage and then brought the executed mortgage back to the settlement agentís office. The grandmother did in fact sign the mortgage in the respondentís presence.

In January 2002, Mary and the granddaughter ended their relationship and a dispute over property and custody of the child ensued. The grandmother commenced a proceeding for an accounting and partition of the respective interests in the home. The grandmother maintains that she would not have executed a POA running to Mary. However, she was aware of and authorized the underlying refinance transaction.

The respondentís conduct in notarizing the signature of a person who was not present before her was in violation of Mass. R. Prof. C. 8.4(c). However, the respondent is a full time teacher with limited legal experience. She has no prior discipline and cooperated fully with Bar Counselís investigation. Accordingly, she received an admonition conditioned upon attending a CLE program designated by Bar Counsel.


ADMONITION NO. 03-63

CLASSIFICATION:
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
The respondent was an associate at a small generalĖpractice law firm from October 1, 2000 to February 27, 2002. The firm consisted of four lawyers: two partners, the respondent, and another attorney who worked part time and was of counsel to the firm. In the beginning of February 2002, one of the partners stopped working due to problems with his health, and the part time associate began a maternity leave. This created a stressful situation for the respondent and the remaining partner.

During the course of her employment at the firm, the respondent had expressed ongoing dissatisfaction with communication within the firm, her rate of pay and the arrangements made for insurance coverage. In late January 2002, the respondent advised the departing partner that she would leave the firm if she was not provided with proper supervision from the remaining partner and if communication between her and the remaining partner did not improve.

The respondent came into work on February 27, 2002, but subsequently left the office at lunchtime and never returned. Before leaving, the respondent placed a memo on the remaining partnerís chair, reiterating her grievances and intended separation from employment. The memo did not indicate she would be leaving that day, but did state that she could ďno longer work under these unprofessional conditions or in this type of insensitive environment.Ē The respondent did not discuss the memo with the partner prior to her departure.

Two weeks prior to her departure, in response to a request from the remaining partner, the respondent submitted a status list of all of the open cases on which the partner had assigned her to work. A supplemental list of the other partnerís cases was provided the following week. The respondent had filed appearances in only seven of the matters that she was handling for the firm. The remaining partner was familiar with all but one of the respondentís cases. The firm, which was already in crisis due to the departure of the ill partner and the part time attorney, was able to prevent harm to clients because two friends who are attorneys assisted the remaining partner with court appearances in the following months.

Although there were no urgent matters needing attention at the time of the respondentís departure and there were no upcoming court dates in the three weeks following her departure, the respondent did not provide the remaining partner with an adequate status report regarding her cases. She did not write a transition memorandum regarding matters that she was handling and did not notify the firm or clients of her intent to withdraw from those cases.

The respondentís conduct in withdrawing from her assigned cases without reasonable notice to clients and her employer and without taking steps to the extent reasonably practicable to protect the clientís interests was in violation of Mass. R. Prof. C. 1.16(d).

The respondent was admitted in 1999 and has no prior discipline. She received an admonition for her conduct in this matter conditioned upon her attendance at a CLE course designated by Bar Counsel.


ADMONITION NO. 03-64

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3 ]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Withdrawal Without Tribunalís Permission [Mass. R. Prof. C. 1.16(c)]

SUMMARY:
In March 2000, the respondent was retained to represent a wife in connection with a contemplated divorce. The respondent attempted to resolve the marital issues with his clientís husband but was unsuccessful. On April 14, 2000, the respondent filed a complaint for an at fault divorce. In June 2000, the husband proposed settlement terms. The respondent discussed the proposal with his client, but the client rejected the offer. The respondent was of the opinion that his client was not being reasonable as to her expectations.

On December 5, 2000, the respondent and his client met to discuss the matter. The respondent told his client that she was being unrealistic and suggested to the client that she should consult with other counsel regarding the merits of the husbandís settlement proposal. After further discussion with his client, the respondent believed that he had been discharged that day. The client, however, did not intend to discharge the respondent and did not understand that he believed that his services had been terminated.

After the December 5th meeting, the respondent did not confirm in writing his understanding that he had been discharged. He did not move to withdraw from the case. On July 8, 2002 the Probate and Family Court sent notice to the respondent under Supplemental Probate Court Rule 408 of its intention to dismiss the case in one year if no action were taken. The respondent did not notify his client of the notice.

Between December 5, 2000 and July 7, 2003, the client called the respondent at least seven times. The respondent did not return her calls. On July 7, 2003, the client complained to Bar Counsel that she had not received her divorce and that the respondent had not returned her calls.

The respondentís failure to represent his client diligently or to adequately communicate with his client, and his failure to seek permission of the Court before withdrawing from representation, is in violation of Mass. R. Prof. C. 1.3, 1.4 and 1.16(c).

The respondent was admitted in 1986 and has no prior discipline. The respondent received an admonition conditioned upon his attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-65

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

SUMMARY:
The respondents are partners in a firm that concentrates in residential real estate closings. In October, 2002, three substantial checks drawn on their IOLTA account were dishonored.

The overdraft in the respondentís IOLTA account was occasioned by poor record keeping, failure to take adequate steps to ensure that closing funds were deposited before the closing was held, and failure to detect and prevent errors by reconciling the firmís records to the bank statements.

The respondents cooperated completely with Bar Counselís investigation. They hired a bookkeeper and instituted proper record keeping and reconciliation procedures. No client was ultimately injured by their poor record keeping.

Each respondent received an admonition for failure to properly safeguard client funds and to maintain proper records of the receipt, maintenance, and disposition of such funds, in violation of Mass. R. Prof. C. 1.15(a).


ADMONITION NO. 03-66

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Withdrawal without Protecting Client or Refunding Fee [Mass. R. Prof. C. 1.16(d)]

SUMMARY:
On or about March 3, 1997, a client retained the respondent to represent her in a divorce action. She paid the respondent a retainer in the amount $5,000.00 and the respondent deposited the funds into his IOLTA account. The client subsequently reconciled with her husband and the complaint for divorce was dismissed.

On October 10, 1999, the client wrote a letter to the respondent requesting that he send her an itemized accounting of his services and a refund of any unearned fee. The respondent failed to reply or to provide her with the requested items. The client sent the respondent a second request on September 25, 2000. The respondent replied on October 19, 2000 and stated that he was in the process of reviewing her bills and that he would get the materials to her as soon as possible. When no further response was received the client sent one more request on August 17, 2001. The respondent again failed to reply. The client then contacted the Office of Bar Counsel. The respondent eventually located most of his bills for the clientís case and provided copies to Bar Counsel.

The respondent withdrew his legal fees from the account before billing the client. He did not reply to the clientís requests for an accounting because he assumed that he had earned the entire $5,000.00 that he had been paid. Further, he had previously sent the client periodic itemizations and bills. The respondent had difficulty locating his billing records for the clientís case because he changed billing systems and moved his office in 1999. Many of his billing records and his checkbooks for the years 1997 and 1998 were lost during the move. Although the respondent earned almost $4,000.00, he refunded $2,000.00 to the client in November 2002.

The respondentís failure to reply to his clientís requests for an accounting and refund was in violation of Mass. R. Prof. C. 1.3, 1.4, 1.15(b) and 1.16(d). His failure to keep adequate records regarding his IOLTA account was in violation of Mass. R. Prof. C. 1.15(a). His withdrawal of legal fees from his account prior to billing the client, and without giving the client an opportunity to dispute the fee, was in violation of Mass. R. Prof. C. 1.15(d).

The respondent has been a member of the bar since 1984. He has no history of 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. 03-67

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

SUMMARY:
This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of receipt of a notice of dishonored check from the bank at which the respondent maintains his IOLTA account. The check in question was in the amount of $58,016.94 and payment would have created an overdraft of $31,617.29.

The dishonored check represented the net cash proceeds due to the seller of a land purchase transaction that closed on June 5, 2003. The check was issued from the respondentís account on June 5, 2003 and presented for payment late on the same afternoon, before good funds were on deposit.

The respondent issued the check and recorded the closing documents without obtaining from the lender the mortgage proceeds or depositing the proceeds into his IOLTA account. After the closing was completed and after the documents were recorded, the respondent went to the lenderís office and picked up the funding check. The dishonored check was presented again and paid.

The respondent was admitted in 1993 and has no prior discipline. He understands his errors and has taken corrective measures. Accordingly, the respondent received an admonition in this matter for violation of Mass. R. Prof. C. 1.15(a), conditioned upon attendance at a CLE program designated by Bar Counsel.


ADMONITION NO. 03-68

CLASSIFICATIONS:
Failing to Act Diligently [Mass. R. of Prof. C. 1.3]
Failing to Communicate Adequately with Client [Mass. R. Prof. C. 1.4(a)]

SUMMARY:
In February 2000, the respondent was retained to file suit against an individual who had failed to repay in full a promissory note payable to the client in the principal amount of $9,000 plus interest. This note represented payment for the purchase of a business in 1994. The defendant had made the contractual monthly payments on the note until 1995 and then made no further payments. The respondent filed suit, and the defendant filed an answer, a counterclaim, and a third party complaint, adding the clientís father to the suit and alleging fraudulent misrepresentation and breach of contract in the underlying sale of the business. The respondent answered the third party complaint on behalf of the father.

In August 2000, the defendant/third party plaintiff filed requests for production of documents and interrogatories. By late October, when a response was already overdue, the respondent sent the discovery requests to the clients. The respondent met with the father in mid November 2000 to draft responses to the discovery requests.

However, the respondent never filed a response to the discovery requests. Following the meeting in mid November 2000, and other than correspondence in November and December 2000 between the respondent and the father concerning billing, there was no further contact between the respondent and the clients until August 2001.

Between December 2000 and March 2001, the defendant filed four applications for final judgment for relief or dismissal for failure to answer interrogatories, pursuant to Mass. R. Civ. P. 33(a), and sent copies to the respondent. The respondent received all of these applications, but did not forward them to his clients or respond to them. On April 20, 2001, judgment entered dismissing the action against the defendant.

In August 2001, the father spoke to the respondent to inquire about the status of the lawsuit. The respondent indicated that he would let the client know after contacting the court. In September 2001, hearing nothing back from the respondent, the client went to the courthouse and discovered the judgment dismissing the lawsuit.

Following this discovery, the clients determined that they did not want the respondent to continue to represent them, but neither immediately contacted the respondent. Eventually, the father consulted three other attorneys about reinstating the lawsuit or suing the respondent, but, aware of the defenses raised by the defendant and uncertain of the outcome, the clients ultimately chose not to spend more money pursuing the matter.

In conjunction with consulting another attorney in August 2002, the father requested the file from the respondent and informed him at that time that the lawsuit had been dismissed in April 2001. The clients received some of the file from the respondent in August 2002. In an effort to obtain the rest of the file, which consisted of correspondence, the father contacted the respondent again in September and December 2002, but the respondent was not able to locate the correspondence. They did not discuss anything other than the file, and they had no further contact after December 2002. On June 24, 2003, a judgment of dismissal pursuant to time standards entered as to the third party complaint and the counterclaim.

By failing to take timely steps to respond to the defendantís discovery requests, the respondent neglected a legal matter entrusted to him, in violation of Mass. R. Prof. C. 1.3. The daughterís lawsuit was dismissed as a result. The respondent also failed to adequately communicate with his clients, in violation of Mass. R. Prof. C. 1.4(a).

In mitigation, the respondentís wife was recovering from a serious injury during the relevant period of time, and the respondent was only able to work on a half time basis. The respondent has cooperated fully with Bar Counselís investigation.

The respondent received an admonition for his misconduct in this matter, conditioned upon his attendance at a continuing legal education course designated by Bar Counsel.


ADMONITION NO. 03-69

CLASSIFICATIONS:
Trust Account Commingling and Recordkeeping [Mass. R. Proc. C. 1.15(a)]
Failing to Act Diligently [Mass. R. Prof. C. 1.3]

SUMMARY:
This matter came to Bar Counselís attention pursuant to Mass. R. Prof. C. 1.15(f) as a result of receipt of a notice of two dishonored checks from the bank at which the respondent maintains his IOLTA account.

The two dishonored checks represented the net cash proceeds due to the seller of a real estate purchase transaction that closed on the morning of May 30, 2003. The checks had been issued from the respondentís IOLTA account that morning and presented for payment late in the afternoon, before sufficient funds were on deposit.

The buyer had been scheduled to sell another piece of real estate on the afternoon of the same day and intended to use the proceeds of that second sale to fund the balance due on the first purchase. The seller and the sellerís attorney were aware of this fact. The respondent therefore issued the proceeds checks to the sellerís counsel, to be held in escrow to an appointed time pending receipt of proceeds from the second sale transaction in the afternoon.

However, despite assurances from buyerís counsel, the second sale transaction was not funded at the appropriate time by the buyerís mortgage company and therefore did not close on May 30. The respondent nonetheless recorded the closing documents from the first transaction before the second transaction was consummated and without obtaining the proceeds due from the buyer in the first transaction.

The respondent was able to reach the sellerís counsel to inform him of the delay before the appointed time. However, the sellerís counsel had already submitted the check for payment. The checks were accordingly returned on account of insufficient funds. The following day the second sale transaction was consummated, replacement checks were issued, and the seller in the first transaction was paid.

The respondentís conduct in going to record on the first transaction before the transaction was fully funded was a breach of the respondentís fiduciary obligations as closing attorney, in violation of Mass. R. Prof. C. 1.15(a) and Mass. R. Prof. C. 1.3.

The respondent was admitted in 1965 and has no prior discipline. He understands his errors and has taken corrective measures. Accordingly, the respondent received an admonition in this matter, conditioned upon attendance at a CLE program recommended by Bar Counsel.


ADMONITION NO. 03-70

CLASSIFICATIONS:
Improper Contingent Fee [Mass. R. Prof. C. 1.5(c)]
Trust Account Commingling and Recordkeeping [Mass. R. Prof. C. 1.15(a)]
Failure to Notify of Receipt or Account to Client or Third Person for Property [Mass. R. Prof. C. 1.15(b)]
Trust Account Requirements [Mass. R. Prof. C. 1.15(d)]
Failure to Return Papers on Discharge [Mass. R. Prof. C. 1.16(e)]

SUMMARY:
The respondent is admitted to practice both in Massachusetts and in an adjoining state. Until 2001, he maintained his office in the adjoining state and conducted little or no practice in Massachusetts. In 2001, he moved his office to Massachusetts, although most of his practice remained in the other state. After his office move, the respondent did not establish an IOLTA account in Massachusetts and instead used a Connecticut IOLTA account for the deposit of all trust funds, including funds received and disbursed for Massachusetts cases.

In the summer of 2002, the respondent was retained to handle a civil matter in Massachusetts on a mixed hourly and contingent fee basis. The respondent received a retainer from the client against the hourly charges and deposited the retainer to his Connecticut IOLTA account. The respondent drafted a written fee agreement for the matter that failed to comply in full with the requirements for charging and collecting a contingent fee in a Massachusetts case. In addition, the fee agreement included a provision by which the respondent purported to assert a lien on the case file as security for payment of his fees and expenses. The fee agreement was never executed by the client, who terminated the respondentís services about six weeks after the engagement and demanded an accounting for the retainer payment. The respondent failed to provide the accounting until the late fall of 2002.

By entering into an agreement for a contingent fee without executing a written fee agreement with all requirements for a contingent fee, the respondent violated Mass. R. Prof. C. 1.5(c). By failing to hold the clientís retainer payment in a Massachusetts IOLTA account, the respondent violated Mass. R. Prof. C. 1.15(a) and (d). By failing promptly to provide an accounting to the client for the retainer, the respondent violated Mass. R. Prof. C. 1.15(b). By asserting an entitlement to a possessory lien on the case file, the respondent violated Mass. R. Prof. C. 1.16(e).

The respondent received an admonition conditioned on his attendance at a CLE course designated by bar counsel.



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