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Commonwealth of Massachusetts

NO. BD-2002-022

IN RE: CHRISTOPHER L. FITZGERALD

S.J.C. Order of Term Suspension entered by Justice Cordy on April 8, 2002.1

SUMMARY2

On or about May 10, 2000, the respondent attempted to pay his 1999 annual registration fees to the Board of Bar Overseers with a check drawn on his IOLTA account. The check was returned to the respondent by the Boardís registration department and the respondent remitted a replacement check.

The IOLTA account in question was in fact a commingled account, used by the respondent primarily for the deposit of paychecks from his employment in a nonlegal position and for the payment of his own personal or business obligations. The respondent did on occasion receive trust funds, which he also deposited to the IOLTA account.

In particular, in the spring of 2000, he represented the sellers in a sale of real estate. In that capacity, on June 2, 2000, he received from the closing attorney, and deposited to his IOLTA account, $254,777 representing the net proceeds of the sale. From the net sale proceeds, the respondent paid his own fees, plus certain creditors of the sellers, and remitted the balance to the sellers.

The respondentís record keeping was generally inadequate. He did not keep adequate track of what sums in the commingled account were his own funds and what sums were attributable to the real estate transaction. He also did not maintain an individual client ledger on the real estate transaction and did not reconcile the account.

As a result of these problems, the respondent made some incorrect assumptions as to whose funds comprised the balance in the account and how much was due the respondent. He was unaware that, apart from the funds remaining due on the real estate transaction, the IOLTA account held insufficient funds to cover various checks written to himself or for his own benefit in June 2000. He therefore negligently withdrew, and paid himself and his own creditors, more than he was owed. The balance in the IOLTA account was only $4789.71 prior to the payment of $6417.24 to a creditor of the sellers. The respondent added personal funds to make up the difference.

The respondentís negligent misuse of client funds, without intent to deprive and with no deprivation resulting, his commingling of client funds with personal or business funds, and his inadequate and improper record keeping is conduct in violation of Mass. R. Prof. C. 1.1 and 1.15(a).

In connection with the investigation of the respondentís record keeping problems, Bar Counsel by letters dated January 4 and January 31, 2001 asked the respondent to provide an accounting of the real estate closing. The respondent did not reply to this correspondence, necessitating the issuance of a subpoena to compel his appearance. The respondent did not appear on the date agreed upon or attempt to reschedule and he did not reply to Bar Counselís follow-up letter to him.

On May 17, 2001, and based on the respondentís failure to cooperate, Bar Counsel filed a petition for administrative suspension and enforcement of subpoena with the Supreme Judicial Court for Suffolk County. On May 29, 2001, an order of immediate administrative suspension was entered against the respondent. The Court also entered an order requiring the respondent to comply with the subpoena no later than June 11, 2001. The respondent did not appear at the Office of Bar Counsel as required.

In September, 2001, the respondent contacted Bar Counselís office, indicated that he had closed his law office, and expressed his willingness to meet with Bar Counsel to resolve the pending matter. The respondent met with Bar Counsel on October 4, 2001, and thereafter cooperated with the investigation.

The respondentís failure to cooperate with an investigation of Bar Counsel is conduct in violation of Supreme Judicial Court Rule 4:01, ß 3, and Mass. R. Prof. C. 8.4(g).

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for a six-month suspension, with reinstatement conditioned upon a one-year accounting probation and attendance at a CLE program designated by Bar Counsel. On March 11, 2002, the Board voted to accept the stipulation and to recommend the agreed-upon disposition to the Supreme Judicial Court. The Court so ordered on April 8, 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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