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Commonwealth of Massachusetts

NO. BD-2002-004

IN RE: EDMUND E. FLEMING

S.J.C. Judgment of Disbarment entered by Justice Spina on September 4, 2002.1

SUMMARY2

In April 1981, the Commodities Futures Trading Commission (CFTC) filed a complaint in the United States District Court for the District of Massachusetts charging that the United States Investment Company, Ltd. (USIC), had defrauded investors of approximately $7 million. In June 1981, the court entered an order permanently enjoining USIC from engaging in activities relating to commodity futures. The order appointed the respondent as receiver to marshal USICís assets and to account for them to the court.

A USIC investor complained to the court concerning the respondentís failure to account for the assets. In January 1996, the court removed the respondent as receiver and appointed a successor receiver. In December 1996, the successor receiver filed a report concluding that the respondent had violated his fiduciary obligations to the receivership and should be required to restore $912,592 to it.

In January 1997, the court entered an order restraining the respondent from selling, transferring, or otherwise alienating any of his assets or property, except in an amount less than $1,000 for ďordinary day-to-day living expendituresĒ, without prior notice to the successor receiver and approval from the court. In March 2000, the court adopted the successor receiverís report and recommendations and ordered the respondent to restore $912,592 to the receivership. The respondent made no payments.

On December 27, 2001, the respondent was found guilty in the United States District Court for the District of Massachusetts of two acts of criminal contempt: the purchase of a computer for $1,839.06 in August 1998, and, on February 16, 2000, payment of $2,000 to an accountant for services rendered in connection with USIC after the respondent was relieved of his position as a receiver. The court found that the most analogous sentencing guideline was Section 2J1.2, which relates to ďObstruction of Justice.Ē The respondentís conduct obstructed the courtís ability to preserve the respondentís assets for restitution to the receivership. The sentencing range for this offense is 10 to 16 months, thus qualifying the offense as a felony under federal law. On July 25, 2002, the court sentenced the respondent to five months of imprisonment, with a recommendation that the sentence be served in a community confinement center, and to another five months in home detention.

On July 31, 2002, the respondent filed an affidavit of resignation with the Board of Bar Overseers in which he admitted that he had been convicted of criminal contempt, a serious crime as defined by S. J. C. Rule 4:01, ß 12(3), and that his conviction established violations of Mass. R. Prof. C. 8.4(b), (d), and (h). Bar counsel requested that the affidavit of resignation be accepted and an order of disbarment enter retroactive to February 20, 2002, the date of the respondentís temporary suspension.

On August 12, 2002, the Board of Bar Overseers voted to recommend to the Supreme Judicial Court that the respondentís affidavit of resignation be accepted and an order of disbarment enter effective February 20, 2002. On August 20, 2002, the Board of Bar Overseers filed its vote and the respondentís affidavit of resignation with the Supreme Judicial Court for Suffolk County. On September 4, 2002, the county court (Spina, J.) entered a judgment accepting the affidavit of resignation and disbarring the respondent retroactive to February 20, 2002.

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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