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Commonwealth of Massachusetts

NO. BD-2003-031


S.J.C. Order of Term Suspension entered by Justice Cowin on June 24, 2003, with an effective date of July 24, 2003. 1

In 1993, the respondent was retained by a widow to represent the estate of her deceased husband. The respondent agreed to file a Massachusetts Estate Tax Return, along with form M-792, in order to clear the title to two properties owned by the decedent and the widow.

The respondent calculated the estate tax due on the estate at $834.00. On May 6, 1993, the client withdrew $834.00 from her personal savings account and used the funds to purchase a bank check in the same amount. The client gave the respondent the bank check for $834.00 payable to the Massachusetts Department of Revenue for payment of the Massachusetts estate tax due, relying on the respondent to file the return with the check with the Massachusetts Department of Revenue, Estate Tax Bureau.

The client died on May 28, 2000. Prior to her death, the respondent completed but failed to file the Massachusetts estate tax return and failed to pay the tax due. The $834.00 bank check was never negotiated.

In January 2001, in anticipation of selling one of the properties, the clientís son discovered that no estate tax return had ever been filed for his father and no estate taxes had been paid. The son hired an attorney to complete his fatherís estate tax return and obtain the necessary releases to proceed with the sale. However, as a result of the respondentís failure to pay the estate tax, the estate was required to pay an additional $833.00 in interest for the late filing of the estate return. In light of the respondent's neglect, the Department of Revenue waived the penalty due.

The respondentís failure to safeguard client property was in violation of Canon Nine, DR 9-102(B)(2) and (3). The respondent's failure to timely file the estate tax return and his failure to finalize the estate constituted neglect of a legal matter entrusted to him in violation of Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1), (2), and (3).

In an unrelated matter, in November 1998, a client hired the respondent to probate the estate of his late uncle, who died intestate on November 12, 1998. On June 18, 2000, the client discharged the respondent after the respondent failed to communicate with him regarding the status of the case and, after almost 18 months, failed to complete the settlement of the estate.

On June 21, 2000, the client hired successor counsel to complete the estate by preparing and filing a first and final account. By letters sent to the respondent dated June 21, 2000, and July 19, 2000, successor counsel requested the estate file from the respondent. The respondent did not reply. In July 2000, the client visited the respondent's office and asked the respondent to produce the estate file. The respondent promised to do so within a few days. However, the respondent thereafter still failed to provide the file. On August 15, 2000, the client filed a complaint with Bar Counsel, alleging in part that the respondent had failed to return the estate file upon repeated requests. On October 24, 2000, the respondent provided the file to Bar Counsel.

The respondent's failure to communicate with his client regarding the status of the estate for eighteen months was in violation of Mass R. Prof. C. Rule 1.4. The respondent's failure to respond to requests of successor counsel and to his client to provide the client's file and his failure to provide the file until after a complaint was filed with Bar Counsel were in violation of Mass. R. Prof. C. Rule 1.16(e).

On October 12, 2001, the respondent was administratively suspended by order of the Supreme Judicial Court for Suffolk County for failure to cooperate with Bar Counselís investigation of the two matters described above. The order required the respondent to comply with the notice requirements detailed in S.J.C. Rule 4:01, ß 17. On November 9, 2001, Bar Counsel sent compliance forms to the respondent with instructions as to their completion, but the respondent did not comply.

The respondent's failure to cooperate with Bar Counsel was in violation of Mass. R. Prof. C. Rule 8.4(g) and (h) and S.J.C. Rule 4:01, ß 3.

The respondentís misconduct was aggravated by his failure to cooperate in the processing of the petition for discipline. In addition, the respondentís prior disciplinary history consists of a public reprimand in 1994 for substantially identical conduct.

Bar Counsel filed a petition for discipline against the respondent on March 5, 2003. The respondent failed to file an answer to the petition or otherwise to cooperate in the disciplinary process and, pursuant to S.J.C. Rule 4:01, ß 8(3), the allegations were therefore deemed admitted. On May 12, 2003, the Board of Bar Overseers voted to recommend to the court that the respondent be suspended for a period of two years. On June 24, 2003, the Supreme Judicial Court for Suffolk County so ordered.

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 Supreme Judicial Court.

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