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Commonwealth of Massachusetts

NO. BD-2000-066

IN RE: EDWARD E. O'SULLIVAN

S.J.C. Judgment of Disbarment entered by Justice Ireland on November 14, 2000.1

SUMMARY2

On October 5, 2000, the respondent filed an affidavit of resignation pursuant to S. J. C. Rule 4:01, § 15. In that affidavit, the respondent acknowledged that bar counsel could prove facts as set forth in a statement of disciplinary charges by a preponderance of the evidence and asked to resign from the bar. The statement of disciplinary charges is summarized as follows.

In 1983, the client, an eighty-three year old resident of New York, hired the respondent to sell her interest in a house located at 9 Curve Street, Newton, Massachusetts. They entered into an agreement in which the client agreed to pay the respondent $75 per hour plus expenses.

The respondent failed adequately to research the matter, did not consider a petition to partition the property, and incorrectly advised the client that all of the owners would be required to assent to the sale of the property. The respondent's failure adequately to research the options available for selling the client's share of the property violated Canon Six, DR 6-101(A)(2).

Although he had determined that a sale of the property required the assent of all persons who had an interest in it, the respondent failed to conduct adequate research to identify all such persons. Consequently, in early 1984, the respondent mistakenly believed that only one owner of the property could not be located. He did not learn of another missing owner until late 1988. The failure to conduct adequate research also violated Canon Six, DR 6-101(A)(2).

In early 1984, the respondent obtained from the owners of the property who could be located powers of attorney authorizing him to represent their interests in its sale. During the course of the representation, the respondent also moved in the probate court to have himself appointed as receiver for the two missing owners. The respondent failed to consider that these various owners, including the owners who had been missing for over a decade, had conflicting interests and that his services to them were not necessary to represent the client and created an additional expense to her. This conflict of interest violated Canon Five, DR 5-105(A)-(C). The respondent did not diligently pursue his appointment as receiver, and this neglect violated Canon Six, DR 6-101(A)(3). In addition, and in violation of G. L. c. 200, § 1, he never made the State Treasurer a party to the receivership proceedings or notified the Treasurer's office of any proceeding. This conduct also violated Canon Six, DR 6-102(A)(2).

The respondent failed diligently to pursue the sale of the property and did not put it on the market until July or August of 1988. From about March 1984 to at least September 1988, the respondent permitted the property to be occupied by relatives of the client despite their failure to pay rent, taxes, insurance, or municipal charges, or to make improvements on the property. This conduct violated Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1)-(3). In the summer of 1984, the respondent misrepresented to the client and to an attorney representing an estate with an interest in the proceeds from the sale of the property that the tenants would purchase the property. This conduct violated Canon One, DR 1-102(A)(4) and (6).

In August 1988, a buyer signed a purchase and sale agreement in which he agreed to pay $115,000 for the property. The lawyer for the mortgagee bank discovered the existence of the missing owner, and this oversight, plus errors in the respondent's license to sell and other pleadings, led to an extended delay in the closing. Without consulting the owners of the property or obtaining their consent, the respondent entered into an agreement with the buyer to compensate him for the difference between the one-year fixed mortgage rate then available to the buyer and the mortgage rate obtained by the buyer at closing. This agreement eventually cost the owners of the property $3,050.00. The respondent agreed to permit the buyer to occupy the property rent-free, also without consulting with the owners or obtaining their consent. This conduct violated Canon Seven, DR 7-101(A)(1)-(3).

The closing on the property took place on August 25, 1989, at which the respondent received net proceeds of $93,296.20. The respondent did not notify the owners of the sale until September 15, 1989. On that date, he sent a memorandum announcing that the "long-awaited sale" had finally been completed and falsely claiming that the respondent had been "forced to appear at numerous times in the probate court to straighten out all the proper owners[]" when the respondent had never been required to appear in any court in the case. The respondent did not disclose that his own errors and omissions had caused the delay. The respondent also wrote that he would place the missing owners' funds "in escrow at the Court's order" when he had never sought nor received an order from the court regarding the receivership funds. The respondent's failure promptly to notify the owners of his receipt of funds on their behalf and his misrepresentations and material omissions violated Canon Nine, DR 9-102(B)(1), and Canon One, DR 1-102(A)(4) and (6).

On or about about September 18, 1989, the respondent issued checks to the owners for what he represented to be their share of the proceeds. The respondent charged the owners $18,200, a clearly excessive fee based on inflated services at a fee of $100 per hour. This conduct violated Canon One, DR 1-102(A)(4) and (6); Canon Two, DR 2-106; and Canon Seven, DR 7-101(A)(1)-(3).

The respondent failed to keep appropriate records regarding the receipt and disposition of the proceeds of the property sale. He never sought a court order to distribute the receivership estates, and he kept no records of his receipt, maintenance, and disposition of the receivership funds. By October 1991, the respondent held $3,042.87 for each of the missing owners in money market accounts. Between October 1991 and August 1996, the respondent intentionally used receivership funds in both accounts for his own use. He also commingled personal and fiduciary funds by depositing personal funds to the receivership accounts. The respondent's failure to keep proper records of his handling of the sale proceeds and receivership funds violated Canon Nine, DR 9-102(B)(3). His failure to seek authority to distribute the receivership funds violated Canon One, DR 1-102(A)(5) and (6); Canon Six, DR 6-101(A)(3); and Canon Seven, DR 7-101(A)(1)-3). The respondent's intentional use of receivership funds and his commingling of personal and receivership funds violated Canon One, DR 1-102(A)(4) and (6); Canon Seven, DR 7-101(A)(1)-(3); and Canon Nine, DR 9-102(A) and (B).

In August 1996, a friend of the client contacted the respondent for information about the funds the respondent had withheld for the missing owners and requested an accounting for rent and other funds received by the respondent during his representation of the owners. The respondent failed to provide this information. The respondent's failure to provide an account of the funds violated Canon Nine, DR 9-102(B)(3).

On August 22, 1996, the respondent closed the receivership accounts, caused cashier's checks to be issued to him, and held these checks at no interest until May 1997. The respondent notified the owners on August 23, 1996, that the missing owners had not come forward to claim their "inheritance" and that he was therefore entitled to distribute the funds to them. The respondent enclosed forms for the owners to sign that purported to "waive[] any further rights of appeal in the matter." The owners signed these forms and returned them in due course, but the respondent did not distribute any funds.

On December 31, 1996, the respondent was temporarily suspended from the practice of law in connection with another matter. Matter of O'Sullivan, 12 Mass. Att'y Disc. R. 397 (1996). The order required the respondent to notify all clients of his suspension, resign all fiduciary positions, and distribute fiduciary funds. The respondent did not take any action until May 1, 1997, when he notified the owners of his suspension and turned the cashier's checks over to another lawyer. The respondent's failure promptly to notify the owners of his suspension, resign as receiver, and properly distribute the receivership funds violated Canon One, DR 1-102(A)(5) and (6); Canon Nine, DR 9-102(A) and (B)(4); and S. J. C. Rule 4:01, § 17. His securing from the owners an agreement to waive appeal rights when they had not been adequately informed of the respondent's handling of the case violated Canon Six, DR 6-102(A).

From 1989 to 1999, the respondent did not cause to be prepared or filed an account of his actions as receiver for either missing owner. In January 1999, the respondent's counsel prepared and filed in the probate court receivership accounts which incorporated misleading information supplied by the respondent and which claimed for each receivership $2,253.69 as "maintenance fees." In May 1999, new accounts were filed incorporating misleading information provided by the respondent. These accounts also claimed entitlement to $2253.69 from each estate for "maintenance fees." The respondent's causing these false accounts to be prepared and filed violated Canon One, DR 1-102(A)(4)-(6), and his charging excessive fees to each receivership violated Canon Two, DR 2-106(A).

Bar counsel requested that the board recommend to the court acceptance of the respondent's affidavit of resignation and entry of an order of disbarment. Bar counsel noted as a matter in aggravation that, on December 4, 1997, the respondent was suspended from the practice of law for three years in Matter of O'Sullivan, 13 Mass. Att'y Disc. R 601 (1997). Some of the misconduct detailed in the statement of disciplinary charges occurred while the respondent was the subject of investigation on the other case, also a matter in aggravation.

On October 16, 2000, the board of bar overseers voted to recommend that the affidavit of resignation be accepted and an order of disbarment be entered forthwith. On November 7, 2000, the board filed with the Supreme Judicial Court for Suffolk County the respondent's affidavit of resignation and the board's vote. On November 14, 2000, the county court entered a judgment of disbarment.

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record before the Court.



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