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Commonwealth of Massachusetts

NO. BD-2001-012


S.J.C. Order (Resignation as a Disciplinary Sanction) entered by Justice Ireland on March 20, 2001. 1


This matter came before the Court on the respondent's affidavit of resignation pursuant to S.J.C. Rule 4:01, § 15.

The respondent was admitted to practice in the Commonwealth of Massachusetts on April 24, 1951.

In or about January of 1993, the respondent was retained by a client to act as her counsel with respect to the settlement of the estate of her father, who had died on December 21, 1992. On or about October 8, 1993, the respondent filed with the Plymouth County Probate and Family Court a statement naming the client as voluntary executor of her father's estate.

In October of 1993, the decedent's mobile home was sold for $38,000.00. On October 26, 1993, the respondent deposited the proceeds from the sale of the mobile home in his office account. This account, which was used by the respondent to hold client as well as personal funds, was an improperly commingled account. Immediately prior to this deposit, the account held less than $100.00.

On October 26, 1993, the respondent transferred $15,000.00 of the estate funds to a pooled client trust account, leaving $23,000.00 of the estate funds in the office account. On October 26, 1993, a check written by the respondent on the client trust account in the amount of $16,065.00 for a personal expenditure was presented to the bank, and was paid from the office account. This check, which was unrelated to the estate matter, would not have cleared but for the deposit of the estate funds on the same day.

As a result of multiple transactions occurring between October 26, 1993 and November 5, 1993, only $2,183.01 remained in the office account by November 5, 1993. Aside from the $15,000.00 transferred to the client trust account on October 26, 1993, all remaining withdrawals from the office account were for the respondent's business or personal expenses unrelated to the estate matter.

In January of 1994, the respondent made final distributions in the amounts of $3,856.92 or $3,856.93 to five of the six beneficiaries of the estate from his client trust account. These payments, totaling $19,284.61, were made possible as a result of the deposit of personal funds by the respondent into the client trust account. The respondent did not send a check to one beneficiary. By June 3, 1994, the balance in the respondent's client trust account had been reduced to $45.77 without payment having been made to the final beneficiary.

Beginning in or about June of 1994, the final beneficiary telephoned the respondent repeatedly requesting that she be sent a check for her distribution from her father's estate. On or about December 10, 1994, she wrote to the respondent requesting her check.

On or about September 25, 1995, the respondent made full restitution in the amount of $3,900.00 to the final beneficiary, using personal funds from the sale of stock.

The respondent's conduct in commingling the estate funds with his own funds and in intentionally using the estate funds to pay personal and business expenses unrelated to the estate, resulting in temporary deprivation to the beneficiaries of the estate, violated Canon One, DR 1-102(A)(4) and (6), and Canon Nine, DR 9-102(A), 9-102(B)(2), and 9-102(B)(4).

On January 31, 2001, the respondent submitted his affidavit of resignation from the practice of law. In the affidavit, the respondent acknowledged that sufficient evidence existed to warrant findings that the facts summarized above could be proved by a preponderance of the evidence. On February 12, 2001, the Board of Bar Overseers unanimously voted to recommend that the affidavit of resignation be accepted as a disciplinary sanction. The Supreme Judicial Court so ordered on March 20, 2001.

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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