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Commonwealth of Massachusetts

NO. BD-2003-070

IN RE: SAUL C. COHEN

S.J.C. Order of Term Suspension entered by Justice Cowin on December 10, 2003, with an effective date of January 10, 2004.1

SUMMARY2

In about 1986, a client engaged the respondent to provide legal services in connection with probating the estate of her father, who had died testate on July 9, 1986. In about 1987, the client also engaged the respondent to provide legal services in connection with probating the estate of her mother, who had died testate on May 11, 1987. The respondent agreed to provide all legal services necessary to settle both estates.

Between 1987 and 1990, the respondent took no action of substance to settle the two estates. Between 1987 and 1990, the client repeatedly contacted the respondent to inquire about the status of the settlement of the two estates. In response to these inquiries, the respondent intentionally misrepresented to the client in substance that he was handling the two estate matters in a timely and appropriate fashion. The respondent did not inform the client that he had not filed the estate tax returns and the fiduciary tax returns, and that his failure to timely file the required tax returns would result or had resulted in penalties and interest assessments against the estates.

On February 21, 1990, the respondent filed the father's and mother's last wills and codicils with the Probate Court, together with petitions to probate the wills and for appointment of the client and her brother (“clients”) as co-executors. On March 21, 1990, the Probate Court entered decrees appointing the clients as executors of the father and mother's estates.

In December of 1990, the respondent filed estate tax returns on behalf of the two estates Massachusetts Department of Revenue (DOR). Because the returns were not timely filed, the DOR assessed penalties and interest of $8,658.28 against the father's estate, and $23,521.55 against the mother's estate. The respondent also failed to timely file fiduciary income tax returns for the mother's estate for the years 1988 and 1989, resulting in the assessment of $5,463.67 in penalties and interest by the state and federal taxing authorities.

In January of 1993, the clients obtained successor counsel and discharged the respondent. On June 10, 1994, the clients filed a malpractice action against the respondent, for which they received a default judgment. On July 5, 1996, execution issued against the respondent in the amount of $80,963.66, plus $8,654.20 in costs and $20,510.79 in interest, for a total of $110,128.65. On October 7, 1996, the respondent filed a voluntary Chapter 7 petition in U.S. Bankruptcy Court. Over the clients’ objection, their civil judgment was discharged along with the respondent's other debts. Therefore, the clients were not able to collect the judgment and recoup the losses they suffered as a result of the respondent’s neglect.

On October 31, 1994, the clients filed a request for investigation with Bar Counsel. The respondent did not respond to correspondence from Bar Counsel. The Board of Bar Overseers issued a subpoena on January 5, 1995, requiring the respondent to appear and produce documents. The respondent complied with the subpoena.

By failing to settle the estates in a timely manner, resulting in the assessment of penalties and interest against the estates, the respondent violated Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1), (2), and (3). By failing to keep the clients apprised of the progress of the estates and by falsely representing to his clients the status of their legal matters, the respondent violated Canon One, DR 1-102(A)(4) and (6), Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1)-(3). By failing to cooperate with Bar Counsel’s investigation, the respondent violated Canon One, DR 1-102(A)(5), and S.J.C. Rule 4:01, § 3.

In a second matter, on May 22, 1991, a minor was struck and injured by an automobile. As a result of the accident, the child lost a tooth and suffered other injuries. On October 28, 1992, the girl, through her mother ("clients"), filed suit in Worcester Superior Court against the driver of the automobile. The clients were represented at the time by another firm.

In 1993, the clients refused a settlement offer of $9,500.00, and sought successor counsel. On April 26, 1993, the clients signed a contingent fee agreement with a new attorney, who then referred the clients to the respondent. The respondent discussed the case with the referring attorney, but he did not meet with the clients. Throughout the course of his representation, the respondent never met with the clients in person. Although the respondent agreed to represent the clients on a contingency fee basis, he never executed a written contingency fee agreement with the clients.

On July 6, 1993, the respondent filed an appearance on behalf of the clients in the civil action. On about August 30, 1993, respondent received interrogatories and a request for production of documents from defendant's counsel. On August 31, 1993, the respondent mailed the discovery requests to an intermediary and translator for the clients, and asked him to review the documents with the clients and return the answers and required documents to the respondent. In September 1993, the respondent received back handwritten answers to the discovery requests from the intermediary on behalf of the clients. The respondent did not take any action of substance to prepare or serve the interrogatory answers.

On about February 8, 1994, respondent received defendant's "Motion to Compel Plaintiff to Respond to His Request for Production of Documents." The respondent did not notify his clients of this motion and the subsequent application for dismissal of their case, or take any action of substance to respond to the outstanding discovery requests and oppose the dismissal. On March 21, 1994, the Court dismissed the clients' case for failure to respond to discovery requests. The respondent did not notify the clients that the case had been dismissed, or take steps to attempt to vacate the dismissal. Because the client was a minor at the time of the accident, the statute of limitations for bringing suit for her claim has not yet expired. However, as a practical matter, her case has been harmed by the passage of time.

On June 18, 1995, the minor client, through her father, filed a request for investigation with the Office of Bar Counsel. After Bar Counsel asked the respondent to reply to the grievance, on or about September 28, 1995, the respondent wrote to Bar Counsel about the case. The respondent intentionally misrepresented to Bar Counsel in the letter that he had "filed the appropriate pleadings to remove the dismissal." In fact, the respondent never filed any pleadings with the Court seeking to remove the dismissal of his clients' lawsuit.

The respondent did not reply to other correspondence from Bar Counsel. The Board of Bar Overseers issued a subpoena on December 21, 1995, requiring the respondent to appear and produce documents. The respondent complied with this subpoena.

By failing to file answers to discovery requests, to notify the clients that the case had been dismissed, and to take any action to remove the dismissal, the respondent violated Canon Six, DR 6-101(A)(3), and Canon Seven, DR 7-101(A)(1), (2), and (3). By falsely representing to Bar Counsel that he had filed papers with the Court to remove the dismissal, the respondent violated Canon One, DR 1-102(A)(4), (5), and (6). By agreeing to represent the clients on a contingency fee basis without executing a written contingency fee agreement with the clients, the respondent violated Canon Two, DR 2-106(C). By failing to cooperate with Bar Counsel’s investigation, the respondent violated Canon One, DR 1-102(A)(5) and S.J.C. Rule 4:01, § 3.

In mitigation, beginning in or about 1987, the respondent’s marriage began to disintegrate. The break down of the marriage accelerated over the ensuing years, culminating in a divorce being filed in June 1993. The divorce was bitterly contested over several years and resulted in great turmoil in the respondent’s personal life that spilled over into his professional life. The consequent emotional and psychological pressure on the respondent was enormous and resulted in difficulties in his practice. Due to the divorce, the respondent’s business suffered and the respondent became heavily indebted, forcing him to file for bankruptcy, thereby compounding his emotional and psychological problems. During the divorce, the respondent intermittently attempted to seek counseling but was emotionally unable to continue. He subsequently was diagnosed with depression. The respondent is now engaging in psychological counseling and treatment.

Bar Counsel filed a petition for discipline alleging these facts and disciplinary violations with the Board of Bar Overseers on February 5, 2003. On April 1, 2003, the respondent filed an answer to the petition for discipline. On September 8, 2003, the respondent filed an amended answer to the petition for discipline admitting to the facts and disciplinary violations, and the parties filed a stipulation recommending that the respondent be suspended from the practice of law for one year and one day.

On October 20, 2003, the Board of Bar Overseers voted to accept the parties’ stipulation and recommendation for discipline. On December 10, 2003, the Supreme Judicial Court for Suffolk County (Cowin, J.) entered an order suspending the respondent from the practice of law for one year and one day.

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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