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Commonwealth of Massachusetts

NO. BD-2004-084


S.J.C. Order of Term Suspension entered by Justice Sosman on November 9, 2004, with an effective date of December 9, 2004.1


The respondent’s wife, a real estate broker, referred “Charles” to him in April, 2000. Charles desired to sell the house that had been owned by his late mother at the time of her death in 1997. A 1995 will nominated Charles as executor and left the bulk of the estate to him.

The respondent agreed to probate the estate and to assist in selling the house. He duly filed a petition that the 1995 will be allowed and that Charles be appointed as executor. As required, the petition identified the heirs at law of Charles’ mother: Charles and four children of Charles’ deceased sister. However, there was a delay in docketing the petition in the Probate Court. Before the petition was docketed, Charles, purporting to act as executor of the estate, signed a purchase and sale agreement for his mother’s house.

On the scheduled closing date, the respondent appeared with Charles. Although he knew that the will had not been allowed and that Charles had not been appointed executor, he drafted and permitted Charles to sign a no-tax-due affidavit that identified Charles as “executor of the estate” of his mother. The respondent also prepared and permitted Charles to sign a deed that identified Charles as “Executor under the Will of [his mother], (Suffolk County Probate #97-P----).” The respondent attested to Charles’ signature on both instruments and affixed his notary seal. The sale was concluded and the proceeds of the sale delivered to Charles. The respondent’s wife received a broker’s commission.

A citation had been issued by the Probate Court and sent to the respondent shortly before the scheduled closing date. He did not, however, publish or serve the citation until eight days after the closing. When he served the citation on the children of Charles’ deceased sister, two of them promptly filed objections to the allowance of the will and to the appointment of Charles as executor. After hearing, the Probate Court ruled that the 1995 will had been procured by undue influence. A 1992 will, under which the children of Charles’ sister shared equally with Charles, was allowed. Charles was not appointed executor.

After protracted proceedings in the Probate Court, a resolution was reached whereby the sale of the house was confirmed. Charles delivered the proceeds of the sale to the estate to be distributed according to the 1992 will.

The respondent had no intent to defraud. He did not anticipate that the will would be challenged and believed that Charles would be appointed executor as a matter of routine. He expected that Charles’ actions before his appointment could be ratified afterward. Nevertheless, he knowingly made a false statement of material fact in violation of Mass. R. Prof. C. 4.1. His wife’s financial interest in the completion of the sale also gave rise to a conflict of interest in violation of Mass. R. Prof. C. 1.7. The respondent acknowledged his misconduct and agreed to a suspension from practice for six months 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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