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Commonwealth of Massachusetts

NO. BD-2001-017


S.J.C. Order of Term Suspension entered by Justice Cowin on June 7, 2001, with an effective date of July 7, 2001. 1


In March, 1987, the respondent and his wife borrowed $100,000 from the respondent's wife's parents to refinance their vacation home in Meredith, New Hampshire. The property was currently subject to a mortgage from the seller which was about to expire. The respondent knew that his in-laws expected and desired to be protected by a note and mortgage. He prepared a promissory note and a mortgage on the vacation home, both of which were duly executed. The respondent understood that he had an obligation to record the mortgage and intended to do so, but he planned to wait until he received the discharge of the seller's mortgage. He never recorded the mortgage and never told his in-laws that he had failed to do so.

In late 1989 or early 1990, the respondent encountered financial difficulties when his law practice was doing poorly and a bank called the $110,000 line of credit which he used to operate the practice. He applied to a private lending company for funds to pay off the loan. When the private lending company required security, he remembered that he had never recorded his in-laws' mortgage. Not later than May 4, 1990, the respondent's failure to record the mortgage was deliberate and knowing and intended to deprive his in-laws of their security. At that time, the respondent borrowed $110,000 from the lending company and granted a first mortgage on the New Hampshire property without disclosing the prior mortgage to his in-laws. He borrowed additional funds in 1991 and 1992, granting a $15,000 second mortgage and a $13,500 third mortgage on the New Hampshire property. He did not use any portion of these funds to pay off the debt to his in-laws; he did not inform them of the three new mortgages.

In September, 1990, after the respondent's in-laws had made a number of requests for proof that the respondent had recorded their mortgage, he created and sent to them a falsified document which appeared to contain recording information to verify that the mortgage had been recorded in New Hampshire. His cover letter asserted that the false document was a copy of the original mortgage "with the recording." This statement was false, as the respondent well knew, and was intended to mislead his in-laws into believing that the mortgage had been recorded. In August, 1997, the respondent falsely asserted to Bar Counsel that he had never had an obligation to record his in-laws' mortgage and that he had not created the altered mortgage with the false recording information. He acted with the intent of misleading Bar Counsel.

The respondent did not intend to deprive his in-laws of repayment of the money that they loaned to him and his wife. Due to financial setbacks, he became unable to pay. The first, second, and third mortgages on the respondent's vacation home exhausted the value of the property. The first mortgage holder foreclosed on the property in May, 1995.

In mitigation, the Board found that the respondent was not acting as his in-laws' lawyer and that this was predominantly a business and intra-family transaction. In addition, business reverses and family difficulties led the respondent to seek psychiatric help for depression and anxiety. He was receiving medication for depression for several years. The Board also found that the respondent made a good faith effort to make restitution to his in-laws by offering them a mortgage on his residence in Weston at a time when the equity in the property was sufficient to provide security for the loan. His in-laws refused the offer and a subsequent offer of $150,000 to resolve the New Hampshire mortgage and all other claims which they were making. They also hindered the respondent's attempts to refinance his Weston home, on which they held a mortgage. When the respondent obtained a new mortgage from a bank, his in-laws refused to provide a payoff figure or a mortgage discharge or to accept a check based on a payoff schedule which had previously been prepared by their accountant.

In aggravation, the Board found that the respondent has substantial experience, approximately 25 years, in the practice of real estate law. He has been previously discipline by being publicly reprimanded and placed on probation in 1994 for failure to maintain adequate records of funds entrusted to him. Matter of Lippman, 10 Mass. Att'y Disc. R 182 (1984)

The Board of Bar Overseers found that the respondent's actions were dishonest, fraudulent, and deceitful in violation of DR 1-102(A)(4) and (6); his intentional misstatement to Bar Counsel was also conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). The Board recommended that the respondent be suspended from practice for eighteen months, and the court adopted the recommendation

The Court denied the respondent's request for permission to work as a title examiner during his suspension.

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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