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Commonwealth of Massachusetts

NO. BD-2002-016

IN RE: ROBERTA GOLDEN

S.J.C. Order of Indefinite Suspension entered by Justice Greaney on January 17, 2007.1

SUMMARY2

This attorney discipline matter involves misconduct with respect to three separate matters. In the first matter, the respondent represented a husband and wife in a personal injury claim. The clients agreed to settle their claim for $7,500, and on or about October 16, 2000, the respondent received a $7,500 settlement check payable to both the respondent and her clients. The respondent endorsed the settlement check in her own name, but did not obtain endorsements from the clients. The respondent’s failure promptly to notify the clients of receipt of the funds violated Mass. R. Prof. C. 1.4 (a) and (b) and 1.15(b), as in effect through June 30, 2004.

The respondent deposited the check to her client funds account, which was a non-interest-bearing, non-IOLTA account that the respondent used to hold the funds of multiple clients. The respondent did not deposit the funds to an IOLTA account or to an interest-bearing individual account for the clients, in violation of Mass. R. Prof. C. 1.15(e), as in effect through June 30, 2004. In addition, the respondent commingled personal and client funds in her client funds account, in violation of Mass. R. Prof. C. 1.15(a) and (d), as in effect through June 30, 2004.

Between October 16 and October 31, 2000, the respondent intentionally used not less than $4,279.00 of the clients’ funds to pay her personal and business obligations and to make payments in connection with an unrelated client matter. The respondent used these funds knowing that she was not authorized to do so. By intentionally using the clients’ settlement funds, knowing that she was not authorized to do so, the respondent violated Mass. R. Prof. C. 8.4(c) and (h).

On or about November 6, 2000, the respondent signed a stipulation of dismissal with prejudice on behalf of her clients. By no later than November 9, 2000, the clients were entitled to receive not less than $4,358.00 from the settlement proceeds. Between November 9, 2000, and January 26, 2001, the clients left several telephone messages for the respondent asking her to account for their funds. During this period, the respondent did not respond to the clients’ requests for an account, nor did she pay the clients any portion of their settlement proceeds. The clients were temporarily deprived of the use of the settlement funds. On or about January 26, 2001, the respondent paid the clients $4,388.89 from the client funds account, using a combination of personal funds and client fees that she deposited to the account on January 18 and January 22, 2001. On January 29, 2001, the clients filed a grievance against the respondent with bar counsel. By failing to respond to her clients’ reasonable requests for information about the settlement funds, or to promptly render a full accounting upon request, the respondent violated Mass. R. Prof. C. 1.4(a) and (b), and Mass. R. Prof. C. 1.15(b), as in effect through June 30, 2004.

In the second matter, the respondent represented a client in his divorce and as the seller of certain real property. In May of 2000, the respondent’s client (seller) entered into a purchase and sale agreement with a buyer for the sale of the property. The respondent agreed to hold a $25,000.00 deposit from the buyer in escrow pending the sale of the property (deposit escrow). On May 26, 2000, the respondent deposited the $25,000 deposit escrow to her client funds account. Between May 26 and June 16, 2000, the respondent withdrew the $25,000 deposit escrow from the client funds account, commingled the funds with her own funds, and intentionally used the funds by making payments to herself and to her husband. The respondent used the funds knowing that she was not authorized to do so.

At the closing on August 15, 2000, the buyer, the seller, and the respondent signed an escrow agreement. The escrow agreement provided that the respondent would hold $100,000.00 from the proceeds due to the seller in a separate escrow account pending the transfer to the buyer of a liquor license (“liquor license escrow”). The respondent also agreed to hold $11,012.09 in escrow, and to distribute the funds to the ex-wife in order to satisfy the seller’s alimony obligations (“alimony escrow”). On August 16, 2000, the respondent deposited $111,012.09 for the liquor license escrow and the alimony escrow to her client funds account.

Between August 16 and October 5, 2000, the respondent intentionally used not less than $89,000.00 of the liquor license and alimony escrow funds, by making payments to herself and to others from the client funds account. The respondent commingled the escrow funds with her own funds, and intentionally used the escrow funds to pay her own business and personal obligations, including a $31,856.00 payment to another divorce client on or about August 29, 2000, and a $7,500.00 payment to counsel for that divorce client’s husband on or about August 31, 2000 (see the third matter described below). The respondent used these funds knowing that she was not authorized to do so, and actual deprivation resulted from her use of the funds.

On October 10, 2000, the respondent deposited $20,825.36 in personal funds to the client funds account, where they were commingled with escrow funds still on deposit in the account. On October 18, 2000, the respondent withdrew $23,916.96 from the client funds account, and used the funds to pay her personal mortgage that was then in default. In order to make this payment, the respondent intentionally used escrow funds from the client funds account, with the knowledge that she was not authorized to do so. In October of 2000, the respondent made payments to the seller’s ex-wife totaling $1,875.00. The respondent used other client funds on deposit in the client funds account to make these payments (see first matter described above).

Between August of 2000 and February of 2002, the respondent falsely represented to the buyer’s attorney that she was holding the liquor license funds on deposit in an escrow account. On or about January 25, 2002, the respondent intentionally misrepresented to bar counsel that the deposits of $25,000 and $111,012.09 to her client funds account in May and August of 2000 were fee payments, rather than escrow funds.

In about February of 2002, the seller discharged the respondent and retained a new lawyer, who demanded that the respondent turn over the seller’s file and the liquor license funds to him by February 27, 2002. The respondent did not return the file or the funds, or contact the seller’s new lawyer to explain her failure to do so. Between February 22 and March 29, 2002, the respondent did not seek instructions from the seller and buyer with respect to payment of the liquor license escrow funds. The respondent’s failure to pay the escrow funds to the seller upon demand, or to seek instructions from the seller and the buyer with respect to the payment of the escrow funds, resulted in temporary deprivation to the buyer and seller.

On March 11, 2002, bar counsel filed a petition for the respondent’s temporary suspension, and a hearing was set for April 3, 2002. On March 29 and April 1, 2002, the respondent’s attorney contacted the lawyers for the seller and the buyer to obtain instructions for the payment of the liquor license escrow funds. On April 1, 2002, the respondent delivered $100,000.00 in cash to her attorney to be used to make restitution to the seller and buyer. On April 1, 2002, the respondent’s attorney, on instructions from the buyer and seller, delivered to the seller’s lawyer a check payable to the buyer and seller in the amount of $100,000.00. On or about April 10, 2002, the respondent’s attorney also turned over the seller’s file to his new lawyer.

By commingling client funds with personal funds and by failing to maintain client funds in a trust account, the respondent violated Mass. R. Prof. C. 1.15(a), (d), and (e), as in effect through June 30, 2004. By failing to hold client funds in an IOLTA account or in an individual, interest-bearing account in the name of the client, the respondent violated Mass. R. Prof. C. 1.15(e), as in effect through June 30, 2004. By intentionally using the escrow funds, knowing that she was not authorized to do so, the respondent violated Mass. R. Prof. C. 8.4(c) and (h). By intentionally misrepresenting to the buyer’s counsel that she was holding the escrow funds on deposit, the respondent violated Mass. R. Prof. C. 4.1(a) and 8.4(c). By intentionally misrepresenting to bar counsel that the escrow funds were intended to be her fee payments, the respondent violated Mass. R. Prof. C. 8.1(a) and 8.4(c). By failing to promptly return her client’s file upon request by her client after she was terminated as his counsel, the respondent violated Mass. R. Prof. C. 1.16(d) and (e).

In the third matter, between approximately January 1998 and August 2000, the respondent represented a wife in a divorce matter. On February 12, 1999, the wife and husband sold their marital home. The parties agreed that the proceeds would be held in escrow by the respondent until the divorce was finalized and the parties agreed how to distribute the proceeds. On February 18, 1999, the respondent deposited a check in the amount of $48,600.00, payable to the respondent as escrow agent for the wife and husband, to her client funds account. The respondent did not ever deposit the funds to an IOLTA account or to a segregated, interest-bearing client account, in violation of Mass. R. Prof. C. 1.15(e), as in effect through June 30, 2004.

Between February 18 and June 1, 1999, the respondent commingled the escrow funds with her own funds and intentionally used not less than $47,162.00 of the escrow funds to pay her personal and business obligations and to make payments in connection with an unrelated client matter. The respondent used these funds knowing that she was not authorized to do so.

On or about August 29, 2000, the parties reached an agreement about how to divide the escrow funds, and the respondent paid the wife $31,856.00 from the client funds account. The parties also authorized the respondent to pay the husband’s attorney $7,500.00, which she did. In order to make these payments, the respondent used escrow funds deposited to the client funds account on behalf of other parties, as described above. The respondent used these funds knowing that she was not authorized to do so.

By commingling client funds with personal funds and by failing to maintain client funds in a trust account, the respondent violated Mass. R. Prof. C. 1.15(a), (d), and (e), as in effect through June 30, 2004. By intentionally using escrow funds, knowing that she was not authorized to do so, the respondent violated Mass. R. Prof. C. 8.4(c) and (h).

The respondent was admitted to practice on February 24, 1994, and had no record of discipline. On April 8, 2002, the respondent was temporarily suspended from the practice of law pursuant to S.J.C. Rule 4:01, Section 12A. On April 29, 2002, the respondent filed her affidavit of compliance with the temporary suspension order.

The matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by indefinite suspension, retroactive to the date of the respondent’s temporary suspension. On December 11, 2006, the Board voted to recommend that the Court accept the parties' stipulation and joint recommendation for discipline. On November 20, 2002, the Court ordered that the respondent be suspended for an indefinite period retroactive to April 8, 2002, the date of her temporary suspension, and that she reimburse the Board for its costs.

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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