Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts

NO. BD-2005-078

IN RE: GERARD E. BATTISTA, JR.

S.J.C. Judgment of Disbarment entered by Justice Ireland on May 24, 2006.1
SUMMARY2

The respondent was disbarred for misconduct arising out of his representation of clients in four matters, as well as for his failure to comply with a Supreme Judicial Court order temporarily suspending him from the practice of law.

In the first matter, the respondent represented a husband and wife in the sale of their home in Massachusetts. The clients instructed the respondent to wire a portion of the funds to a title company in Florida before July 19, 2005, the scheduled closing date for their purchase of a new home. The balance of the sale proceeds was to be wired to the clients’ personal account.

On or about July 15, 2005, the respondent received a check in the amount of $576,926.84, representing the net proceeds from the sale of the clients’ property. He deposited the check into his IOLTA account. The respondent failed to wire the funds to the title agency in Florida by July 19, 2005, and the clients were required to reschedule the Florida closing to July 26, 2005.

The respondent wired $337,098.46 to the title agency in Florida on July 22, 2005, but did not wire the remaining $239,828.38 balance of the proceeds to the clients’ personal account as instructed. Between July 25 and August 31, 2005, the respondent intentionally, and without the clients’ consent or authorization, withdrew most of the balance of the clients’ funds from the IOLTA account and misappropriated those funds to pay his own personal or business obligations or those of other clients.

The clients then retained counsel and, on or about September 2, 2005, filed suit in superior court. The respondent paid the clients $249,958.79 on or about September 30, 2005. He was able to make this payment only by misappropriating the funds of other clients.

By failing to timely disburse the sale proceeds to his clients, failing to account to the clients for the funds and intentionally misappropriating the funds, with intent to deprive the clients of the funds at least temporarily, and with actual deprivation resulting, the respondent violated Mass. R. Prof. C. 1.15(b)-(d) and 8.4(c) and (h)

In the second matter, the respondent was retained in or around April 2003 to prepare an estate plan on behalf of a client. As part of the estate plan, the respondent created two trusts in the client’s name. The client died on or about July 23, 2005.

The client’s sons met with the respondent in August 2005 to discuss the client’s estate and to retain him as counsel for the estate. The respondent advised the client’s sons that funds held by a brokerage firm needed to be withdrawn from the trust and deposited into the respondent’s client fund account. The respondent received a check in the amount of $348,559.86 from the broker on or about September 23, 2005 and deposited the check into his IOLTA account.

The respondent thereafter intentionally and wrongfully withdrew most of these funds from his IOLTA account and applied the funds to his own personal or business obligations or those of other clients, including but not limited to the withdrawal of $249,958.79 on or about September 29, 2005 to pay the clients in the first matter described above. The respondent to date has not made restitution of the funds owed to the client’s estate, the trust or its beneficiaries.

By failing to account to the estate, trusts or beneficiaries for the funds, and by intentionally misappropriating the trust funds with intent to deprive the estate, trusts, or beneficiaries of the funds at least temporarily and with actual deprivation resulting, the respondent violated Mass. R. Prof. C. 1.15(b)-(d) and 8.4(c) and (h).

In the third matter, the respondent represented a client regarding the sale of her home. The respondent deposited the proceeds in the amount of $483,513.95 from the sale of the home into his IOLTA account on or about October 15, 2004. At the client’s request, the respondent established two trusts, naming the client’s daughter as trustee and the client and her eight children as beneficiaries. The trusts were to be funded with certain of the proceeds from the sale of the home.

Commencing on or around October 15, 2004, the respondent intentionally and wrongfully withdrew substantial amounts of the sale proceeds from his IOLTA account and misappropriated the funds to pay to personal or business obligations of the respondent or those of other clients. The respondent also made partial distributions to the trusts, the client and the beneficiaries. However, the balance of funds in the IOLTA account was only $12,249.69 by November 22, 2004, with more than $200,000 still owed to the client or the trusts.

The respondent met with the client and the trustee on or about July 27, 2005, to distribute the remaining balance due to client from the sale of her home. He advised the client that she was due $143,513.95. The trustee informed the respondent that he had miscalculated the amount due. The correct balance due the client was $238,720.03. The respondent advised the client and trustee that he would review his records and report back to them.

On or about August 11, 2005, the respondent contacted the client and informed her that the trustee was correct about the amount due to the client. The respondent falsely represented to the client that he had “overpaid two other clients in error” and that this had caused a deficit in his client funds account. He further falsely advised the client that these clients had been notified and that they were in the process of returning the money to him. The respondent stated that he would notify the client when the money was available and that he would deposit the funds due her directly into her trust accounts.

The client died on or about August 16, 2005. To date, the respondent has not remitted any of the balance of the funds to the client’s estate, her trusts or the beneficiaries.

By failing to promptly disburse the proceeds of the sale of the client’s home to or for the benefit of the client or the trusts that she had established, failing to account to the client or the trusts or beneficiaries for a substantial portion of the funds and by intentionally misappropriating those funds with intent to deprive the client or the trusts or beneficiaries of the funds at least temporarily and with actual deprivation resulting, the respondent violated Mass. R. Prof. C. 1.15(b)-(d) and 8.4(c) and (h). By falsely representing to the client that a deficit in his client funds account occurred because he had “overpaid two clients in error” and that the client would receive all funds due her after the funds were returned, the respondent violated Mass. R. Prof. C. 8.4(c) and (h).

In the fourth matter, the respondent represented a client in or around April 2003, regarding the establishment of an estate plan. The respondent created two trusts on the client’s behalf. The client also executed a will in or about April 16, 2003 and named her nephew as her executor.

The client died on or about December 10, 2004. The client’s nephew retained the respondent to probate the client’s estate. As directed by the respondent, the nephew closed one of the client’s trust accounts and delivered a check in the amount of $257,755.69 to the respondent on or about January 11, 2005. The respondent deposited the check into his IOLTA account on January 12, 2005.

Between January 12, 2005 and February 23, 2005, the respondent intentionally and wrongfully withdrew a substantial portion of the trust funds from his IOLTA account and misappropriated those funds to pay his own personal or business obligations or those of other clients. By February 23, 2005, the balance in the IOLTA account fell to $126,188.50, without any payments to or for the benefit of the client’s estate, the trusts or the beneficiaries.

On or about March 6, 2005, the respondent received a check in the amount of $365,175.85 from a brokerage firm, representing the proceeds of the client’s second trust. He deposited the check into his IOLTA account the following day. The respondent thereafter intentionally and wrongfully continued to withdraw from his IOLTA account, and to misappropriate, the client’s funds for his own personal and business obligations and those of other clients.

The respondent did make partial distributions to the legatees totaling $115,000. However, the balance due the estate, trusts or beneficiaries as of May 18, 2005 was $507,931 and the balance in the respondent’s IOLTA account on that date was only $32,770.04.

Between August 16 and August 22, 2005 the respondent disbursed a further $60,000.00 to the legatees. The respondent was only able to make these payments by using a portion of the proceeds from the sale of the real estate owned by the clients in the first matter described above. The remaining balance due the estate, trusts or beneficiaries was $447,931.54. However, by August 22, 2005, the balance in the respondent’s IOLTA account was only $18,701.50. To date, the respondent has not remitted the balance of the funds due to the estate, trusts or beneficiaries.

By failing to disburse the trust funds that he was holding, failing to account for funds and intentionally misappropriating the funds with intent to deprive the estate, trusts, or beneficiaries of the funds at least temporarily and with actual deprivation resulting, the respondent violated Mass. R. Prof. C. 1.15(b)-(d) and 8.4(c) and (h).

On October 7, 2005, the Supreme Judicial Court issued an order temporarily suspending the respondent from the practice of law pending further disciplinary proceedings. After the respondent was suspended, he failed to file an affidavit of compliance and failed to comply with the court’s order that he notify his clients of his temporary suspension and that he provide his clients with their files, all as required by Supreme Judicial Court Rule 4:01, § 17. Bar counsel accordingly filed motions for an order of contempt and for the appointment of a commissioner. The motions were allowed on January 26, 2006. The respondent’s conduct in these respects violated Supreme Judicial Court Rule 4:01, § 3, Mass. R. Prof. C. 8.4(d) and (h), and Supreme Judicial Court Rule 4:01 § 17(1), (5), and (6).

Bar counsel filed a petition for discipline on February 24, 2006. The respondent failed to file an answer and the charges were therefore deemed admitted pursuant to § 3.15(e) of the Rules of the Board of Bar Overseers. On May 8, 2006, the Board voted to recommend to the Supreme Judicial Court that the respondent be disbarred. On May 24, 2006, the Court so ordered.

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 filed with the Supreme Judicial Court



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2006. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.