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Commonwealth of Massachusetts

NO. BD-2001-071

IN RE: JOHN G. VAN DUSEN

S.J.C. Order of Term Suspension entered by Justice Spina on November 21, 2002.1

SUMMARY2

In January 2000, two sisters retained the respondent to represent them in the probate of their motherís estate and to prepare and file all necessary tax returns for the estate. After he was retained, the respondent failed to complete and file 1999 state and federal income tax returns on behalf of the estate. The respondent also failed to advise the sisters that estate taxes were owed and were required to be paid within nine months of their motherís death. The respondent failed to request an extension of time to file estate tax returns, and he failed to file estate tax returns for the motherís estate in a timely manner.

The respondent filed the motherís will and a petition for probate of the will in the Probate and Family Court in February 2001. The respondent failed to effect service of the petition for probate and, as a result, the petition was not allowed by the court.

The sisters retained new counsel to represent them in the probate of their motherís estate on or about July 12, 2001. On July 17, 2001, the sisters discharged the respondent and demanded that he turn over all files and other documents pertaining to their motherís estate to successor counsel. The respondent failed to do so until August 16, 2001, despite repeated demands for the file by successor counsel.

In the course of investigating the sistersí complaint, bar counsel requested information from the respondent relating to his handling of the motherís estate. The respondent received these requests in due course, but he failed to respond or otherwise to provide the information requested by bar counsel.

As a result of the respondentís neglect, the estate incurred substantial tax liability for interest and penalties. The estate also suffered a diminution in value due to the respondentís failure to secure the appointment of the sisters as co-executrixes. Because the respondent did not have malpractice insurance coverage, the estate was not able to recoup the losses it suffered as a result of the respondentís neglect.

Bar counsel and the respondent stipulated that the respondentís conduct in the estate matter violated Mass. R. Prof. C. 1.1 (lawyer shall provide competent representation), 1.2(a) (lawyer shall seek lawful objectives of his clients), 1.3 (lawyer shall act with reasonable diligence), 1.4 (lawyer shall keep clients reasonably informed about status of a matter and promptly comply with reasonable requests for information), and 1.16(d) (upon termination of representation, lawyer shall take steps to protect clientís interests, including surrendering papers and property to which client is entitled) and (e) (following former clientís request for file, lawyer must make file contents available to client). The respondent also stipulated that his failure to respond to bar counselís request for information violated S.J.C. Rule 4:01, ß 3(1)(b) (failure without good cause to respond to requests for information by bar counsel made in the course of processing a complaint shall constitute misconduct), and Mass. R. Prof. C. 8.1(b) (lawyer in connection with disciplinary matter shall not knowingly fail to respond to lawful demand for information from disciplinary authority), and 8.4(g) (it is professional misconduct to fail without good cause to cooperate with bar counsel).

In 1997, the respondent received a public reprimand with probationary conditions for his failure to distribute trust assets in a timely manner, failure to complete the probate of an estate or distribute estate assets in a timely manner, and failure to cooperate in bar counselís investigation. Matter of Van Dusen, 13 Mass. Attíy Disc. R. 813 (1997). This prior sanction was considered as a matter in aggravation.

On October 15, 2001, the Court (Marshall, C.J.) entered an Order of Administrative Suspension for the respondentís failure to respond to requests for information from bar counsel. On November 29, 2001, the Court (Spina, J.) entered an Order of Temporary Suspension of the respondent. That order required the respondent to notify within fourteen days all courts, clients, and opposing counsel of the suspension, to resign from any and all fiduciary appointments, and to notify all interested parties of the resignations. The respondent failed to comply fully with the Order of Temporary Suspension.

Bar counsel and the respondent jointly stipulated that the respondent be suspended from the practice of law for two years, retroactive to the date of the Order of Temporary Suspension. On November 21, 2002, the Court (Spina, J.) entered an order suspending the respondent from the practice of law for two years from the date of the order.

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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