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Commonwealth of Massachusetts

NO. BD-2005-094

IN RE: BERNARD P. SMITH

S.J.C. Judgment Accepting Resignation As A Disciplinary Sanction entered by Justice Cowin on November 30, 2005, with an effective date of December 30, 2005.1

SUMMARY2

Between the early 1980ís and 2003, the respondent prepared annual income tax returns and performed other financial and estate planning services for an elderly husband and wife. The total fees charged per year for these services between 2000 and 2003 ranged between $4,000 and $7,500.

In December of 2003, the husband died and the respondent was named a co-executor in his will. The respondent later met with the decedentís wife and two of the decedentís children to discuss the respondentís role as co-executor of the decedentís estate.

Shortly thereafter, the wife hired the respondent to prepare her individual tax returns and to discuss finances and a new estate plan. At that time, the wife was in her early 80ís. She agreed to pay the respondent $250 per hour for his services. The respondent anticipated being paid from life insurance proceeds of approximately $300,000, which named the wife as the sole beneficiary.

After the wife received a portion of the insurance death benefits, the respondent, in a period of several weeks, prepared three checks drawn on the wifeís checking account made payable to himself and presented them to her for her signature. These three checks totaled $50,000. The first check was dated March 18, 2004 in the amount of $10,000, and the other two checks, each for $20,000, were dated March 29, 2004 and April 7, 2004.

On July 1, 2004, the respondent wrote a fourth check for the wifeís signature in the amount of $10,000, bringing the total that the respondent had paid himself to $60,000.

The respondent prepared four bills dated March 18, 2004, March 29, 2004, April 7, 2004, and June 28, 2004, that purported to identify $60,000 in legal services provided to the decedentís estate and to the wife as an individual. Each of these bills contained the same general description of services. The bills were not itemized as to the date on which the services were rendered or as to the amount of time spent on each date or the service performed.

The respondent did not provide $60,000 in legal or financial services to the decedentís estate or to the wife between December of 2003 and July of 2004. The respondent did not prepare a written estate plan, a will, or any other estate planning documents for the wife. The services provided, which included completing a set of individual tax returns for the wife, had a value that did not exceed the annual fees of $4,000 to $7,500 that the respondent had previously charged the couple between 2000 and 2003.

In July of 2004, the wife and her family hired other counsel to review the respondentís file. The respondent thereafter was asked to resign as co-executor of the decedentís estate. He was also asked to refund the $60,000 that the respondent had charged, and received from, the wife.

On September 9, 2004, the respondent resigned as co-executor of the decedentís estate. The respondent has not repaid any portion of the $60,000 that he received from the wife.

The respondentís conduct in charging a clearly excessive fee constituted a violation of Mass. R. Prof. C. 1.5. The respondentís conduct in charging a vulnerable, elderly client $60,000 for services that had a value of no more than $7,500 constituted dishonest conduct that adversely reflects on his fitness to practice law in violation of Mass. R. Prof. C. 8.4 (c) and (h).

On October 17, 2005, the respondent filed an affidavit of resignation pursuant to Supreme Judicial Court Rule 4:01, ß 15. On November 14, 2005, the Board of Bar Overseers voted to recommend to the Supreme Judicial Court that the respondentís affidavit of resignation be accepted as a disciplinary sanction. On November 30, 2005, the Supreme Judicial Court for Suffolk County so ordered.

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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