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Commonwealth of Massachusetts

NO. BD-2004-018

IN RE: W. THEODORE HARRIS, JR.

S.J.C. Order of Term Suspension entered by Justice Ireland on March 2, 2004, with an effective date of April 1, 2004.1

SUMMARY2

On August 31, 1999, the respondent’s client was arraigned in state district court on a multi-count criminal complaint charging the client, among other things, with five counts of larceny over $250.00. Two of the larceny counts charged that the client had stolen money taken as down payments for lots and proposed houses at one of his real estate developments (the “project”). The client was unable to post bail and remained in custody while he was represented by the respondent.

Sometime after his arraignment, the client and the respondent agreed that the respondent would delay the disposition of the case to allow the project to be completed. The respondent and the client hoped that the project would generate funds to allow the client to make restitution and that the restitution would therefore minimize or eliminate a period of incarceration.

On December 16, 1999, the client was arraigned in the superior court on a multi-count indictment, including two larceny counts alleging that the client had stolen more than $37,000.00 in down payments related to the project. The respondent represented the client on these charges.

A realty trust owned the land on which the project was being developed. The client’s mother-in-law was the nominal trustee, but the client controlled the trust. In early December 1999, the client told the respondent that his mother-in-law wished to resign as trustee of the trust. The client and the respondent agreed that the respondent would become the new trustee, but it was understood that the respondent would only be a straw and that the client would continue to control the development of the project.

On December 20, 1999, the respondent met with the client’s wife and the wife’s mother. The respondent had prepared an amendment to the trust appointing himself as trustee and an amendment to the schedule of beneficiaries that gave the respondent a 55% beneficial interest and the client and his wife the remaining 45% interest in the trust. The respondent had the mother-in-law sign these documents. The respondent never advised the client that his fiduciary obligations as trustee and his position as a beneficiary of the trust did or might put him at odds with his duties as defense counsel to the client in any matter affecting the management of funds and property belonging to the trust. The respondent did not advise the client to seek the advice of independent counsel, and he did not ask to withdraw as counsel in the superior court proceedings.

Between December 16, 1999, and September 1, 2000, the respondent appeared on the client’s behalf in the superior court at least seventeen times. At these appearances, the respondent discussed with an assistant district attorney (“ADA”) the disposition of the client’s case. The respondent was told that restitution would be a factor in any recommendation made in the matter.

On September 18, 2000, the client was arraigned on a second multi-count indictment. One of the counts alleged that the client had stolen at least $32,500.00 from a contractor who had purchased gravel to be produced from the development of the project. The respondent represented the client on these charges as well, even though one of counts in the indictment involved the property of the trust.

On December 1, 2000, the respondent filed motions to continue the trial of the client’s two indictments and for authorization of the expense of $5,000.00 to retain a forensic accountant. The respondent wrote that he needed to “locate a forensic accountant” to “reconstruct the corporation through their individual financial records”. The respondent filed this motion for the sole purpose of delaying the trial. The respondent’s representations that he intended to prepare for trial with a forensic accountant were deceptive and misleading as his sole intention was to delay the trial and attempt to settle the case with a plea

On December 1, the motions were allowed, and the client’s trial was scheduled for February 20, 2001. The motion judge specified that there would be no further continuances. The respondent understood that, barring extraordinary circumstances, the court’s order meant that the client’s trial would begin on or about February 20th.

On February 6, 2001, the respondent filed a motion to continue the client’s trial to April 23, 2001. In that motion, the respondent wrote that he had not prepared the client’s case because he had been preparing for a criminal trial that he believed would go forward in federal court but had been rescheduled. In fact, the respondent had no intention of preparing the client’s case for trial. On February 7, 2001, the motion was denied.

After the denial of the respondent’s motion to continue, the respondent met with the ADA. The respondent knew by then that the project would not likely generate funds for restitution, and the respondent told the ADA that the client could not make restitution. The ADA told the respondent that the Commonwealth would recommend a sentence to state prison of not less than seven years nor more than ten years if the client pled guilty to both indictments.

Sometime between February 7th and February 15th, the respondent informed the client that the motion to continue the trial had been denied and that the ADA would recommend a seven-to-ten-year state prison sentence. The client told the respondent that he was unwilling to plead guilty and asked for advice on avoiding trial. The respondent advised the client that the best way to delay the trial was for the respondent to move to withdraw as the client’s counsel based on the conflict of interest created by the respondent’s positions as trustee and beneficiary of the trust while representing the client in the criminal matters.

On February 16, 2001, the respondent filed a motion to withdraw as the client’s counsel in which he claimed that he had a conflict of interest as both trustee and beneficiary of the realty trust and as the client’s attorney. In the motion, the respondent disclosed prejudicial confidential information concerning the client. After a hearing, the respondent’s motion was denied, and the client’s trial remained scheduled to begin on February 20, 2001.

On February 20, 2001, the respondent filed with the Supreme Judicial Court for Suffolk County a “Petition Pursuant to G.L. c. 211, § 3 For Relief From Denial of Defense Counsel’s Motion to Withdraw From the Case Due to Conflict of Interest.” The respondent attached as an exhibit to his petition his motion containing the unauthorized disclosure of confidential information.

On the afternoon of February 20th, the ADA, the respondent, and the client appeared for trial before a judge of the superior court. The ADA informed the court that the single justice had denied the respondent’s motions to stay the client’s trial and withdraw as the client’s counsel. The judge ordered the matter to go forward, but the respondent stated that he was not prepared to go forward and that the client wished to address the court.

The client told the judge that he wanted to discharge the respondent as his counsel, falsely representing that the respondent had failed to communicate with him and discuss strategy with him during the course of the representation. The respondent knew that the client’s representations to the court were false, but he did not ask the client to correct the false statements or correct the false statements himself. Instead, the respondent reiterated that he was not prepared to try the client’s case and falsely told the court that he had not met with the client to discuss the matter. The respondent knew that his statement to the court was misleading and deceptive. The judge continued the matter to the following day.

On February 21, 2001, the respondent and the client were again before the same judge. The client was placed under oath and told the judge that he had only spoken a couple of times with the respondent about the specifics of the case and misrepresented that the respondent had spent only five or six hours talking with him about the matter. Again, the respondent made no attempt to correct the client’s misrepresentations. Instead, the respondent falsely told the court that he had done nothing in the matter other than to collect papers and put them in his office.

On February 21, 2001, the court found that the respondent had “spent no time preparing for this case[,]…failed to discuss strategy with…[the client,]…and…merely collected papers in preparation for trial.” The court concluded that since his arraignment, the client “had remained incarcerated…without the ability to participate in his defense”, and allowed the client’s request to remove the respondent as his counsel.

The client eventually was assigned new counsel and was convicted of several felony offenses, for which he was sentenced to state prison. On June 13, 2001, the respondent resigned as trustee of the trust and transferred his beneficial interest in the trust to the client.

By assuming the position of trustee and becoming a beneficiary of the trust while representing the client in criminal matters that dealt with property owned by the trust, without full disclosure of the potential conflict of interest and without obtaining the client’s consent, the respondent violated Mass. R. Prof. C. 1.7(b) (lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s own interest)

By taking a possessory or financial interest adverse to his client without fully disclosing in writing the terms of the transaction, without giving the client the opportunity to consult independent counsel, and without obtaining the client’s consent in writing, the respondent violated Mass. R. Prof. C. 1.8 (a) (1), (2), and (3) (lawyer shall not acquire an ownership or pecuniary interest adverse to his client unless the transaction is fair and reasonable, the terms of the transaction are fully disclosed and transmitted in writing to the client, the client has had an opportunity to have independent counsel review the transaction, and the client has consented to the transaction in writing).

By disclosing confidential information gained during the course of his representing the client without the client’s informed consent, the respondent violated Mass. R. Prof. C. 1.6(a) (lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation).

By failing to correct the client’s false statements to the court, the respondent violated Mass. R. Prof. C. 3.3(a)(2) (lawyer shall not fail to disclose a material fact to a tribunal when the disclosure is necessary to avoid assisting a fraudulent act by his client). The respondent’s own deceptive and misleading statements to the court regarding his need to locate a forensic accountant and the services he had provided to the client violated Mass. R. Prof. C. 3.3(a)(1) (lawyer shall not make a false statement of material fact or law to a tribunal) and Mass. R. Prof. C. 8.4(c), (d), and (h) (lawyer shall not engage in conduct involving dishonest, fraud, deceit, or misrepresentation; engage in conduct that is prejudicial to the administration justice; or engage in any other conduct adversely reflecting on is his fitness to practice law).

The respondent’s failure to effect timely withdrawal as the client’s counsel after assuming his roles as trustee and beneficiary violated Mass. R. Prof. C. 1.16(a)(1) ( lawyer shall withdraw from representation if the continued representation will result in violation of the rules of professional conduct).

On January 26, 2004, the parties submitted a stipulation to the Board of Bar Overseers parties recommending that the respondent be suspended from the practice of law for eighteen months. On February 9, 2004, the Board voted to accept the stipulation of the parties and recommended that the respondent be suspended from the practice of law for eighteen months.

On March 2, 2004, the Supreme Judicial Court for Suffolk County ordered that the respondent be suspended from the practice of law for eighteen months.

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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