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Commonwealth of Massachusetts

NO. BD-2003-063

IN RE: MARVIN L. WOLFERT

S.J.C. Judgment of Disbarment entered by Justice Sosman on July 12, 2004.1

SUMMARY2

In May 2001, the respondent represented the buyer of property located in Bridgewater, MA. The respondent agreed to hold in escrow $21,000.00 of the sale proceeds to pay for a sewer hook-up and other costs related to the maintenance or repair of the septic system.

The closing on the property took place on May 31, 2001. On June 1, 2001, the respondent deposited $21,000.00 received from the closing into an interest-bearing escrow account.

On December 19, 2002, the parties amended the escrow agreement to authorize the respondent to take $850.00 in fees, pay $4,155.00 in expenses from the escrowed funds, and remit $6,358.99 to the sellers. The respondent was instructed to retain $11,000.00 in the escrow account to be disbursed upon the completion of the sewer work. No other disbursements were authorized.

On January 9, 2003, the respondent sent the sellers a check for $6,358.99. Between June 1, 2001, and July 15, 2003, the respondent, without authority or notice to the parties, intentionally withdrew at least $13,415.00 of escrowed funds, commingled those funds with his own funds, and used the funds to pay his personal and/or business expenses. The respondent intended to deprive the parties of the use of the funds, and he in fact deprived the sellers of their funds. In August 2003, the sellers learned that the sewer betterment fee would be $8,871.00. After getting the buyerís agreement to the disbursement, the sellers advised the respondent of the amount of the fee, and told the respondent to pay it by the due date of September 1, 2003. The respondent misrepresented to the sellers that he would take care of the bill and that he would send them the balance of the funds in the escrow account.

The respondent did not pay the sewer betterment fee and did not send any money to the sellers. When the sellers learned that the sewer bill had not been paid, they called and left at least two messages at the respondentís office. The respondent did not return these telephone calls.

The respondentís conduct in commingling fiduciary funds with his own funds, his intentional conversion of the funds in the escrow account to his own use, and his failure promptly to turn over funds due to the sellers violated Mass. R. Prof. C. 1.15(a) and (b) (a lawyers shall hold property of clients or third persons separate and apart from the lawyerís own property and shall promptly deliver funds to a third person entitled to receive those funds) and Mass. R. Prof. C. 8.4( c) and (h) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, or any other conduct that adversely reflects on his fitness to practice law). The respondentís false representations to the sellers that he would pay the sewer betterment fee and that he would send the sellers the balance of the funds in the escrow account violated Mass. R. Prof. C. 8.4(c) and (h).

On October 23, 2003, the Supreme Judicial Court for Suffolk County (Sosman, J.) entered an order temporarily suspending the respondent from the practice of law. Matter of Wolfert, S.J.C. No. BD-2003-063, (October 23, 2003).

On May 14, 2004, the respondent submitted his affidavit of resignation to the Board of Bar Overseers. On June 14, 2004, the Board of Bar Overseers voted to recommend to the Supreme Judicial Court that the respondentís affidavit of resignation be accepted and that an order of disbarment be entered retroactive to the date of the respondentís temporary suspension from the practice of law.

On July 12, 2004, the Supreme Judicial Court for Suffolk County entered a judgment of disbarment retroactive to October 23, 2003.

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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