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Commonwealth of Massachusetts

NO. BD-2005-0106


S.J.C. Order of Temporary Suspension entered by Justice Spina on February 6, 2006.1


Bar counsel filed a petition for temporary suspension of Attorney Alan Mason, pending further disciplinary proceedings before the Board of Bar Overseers (board). A hearing on the petition took place on January 19, 2006, which was attended by Attorney Mason and assistant bar counsel Susan A. Strauss Weisberg.

An order of temporary suspension may be entered if (a) bar counsel establishes by a preponderance of the evidence that the lawyer violated a disciplinary rule, and (b) balancing the harm to the lawyer and the public interest, the lawyer poses a threat of substantial harm to present or future clients or in other respects. Matter of Ellis, 425 Mass. 332, 334 (1997). The facts on which an order of temporary suspension is based must be "explicit and persuasive." Id.

1. Violation of disciplinary rule. The respondent represented a married couple on October 5,2005, in their purchase of real estate in Leominster. He also acted as settlement agent for their institutional lender, and as the title insurance agent for a title company. The property was subject to a construction mortgage in the amount of $427,500. The respondent knew that it was his responsibility to pay off the construction mortgage with the funds provided to him by his client ($255,245) and their lender ($300,000) and to obtain a mortgage discharge that would give his clients clear record title subject to their lender's first mortgage. After the closing the respondent deposited $430,140.60 in closing proceeds to a nontrust account at the Webster First Federal Credit Union titled "Alan Mason Legal Services, Inc., Conveyancing Account." He paid himself $2,640.60 pursuant to the closing statement, but he did not use the remaining $427,500 to pay off the construction mortgage. He applied those proceeds instead to satisfy other client or business obligations. I find this to be an intentional misappropriation of client funds that resulted in actual deprivation to the clients.

The respondent repaid $260,000 of the funds one month after the closing. Approximately three weeks later a title company paid $171,641.91 to the holder of the construction mortgage, and the mortgage was thereby discharged. An intentional misappropriation with deprivation is a violation of the Massachusetts Rules of Professional Conduct, Rule 1.15 (a) and (b) (lawyer shall safeguard and keep separate client funds and shall notify client upon receipt of funds), 426 Mass. 1363 (1998); Rule 8.4 (c) (dishonesty, fraud, deceit, or misrepresentation), and Rule 8.4 (h) (conduct adversely reflecting on fitness to practice), 426 Mass. 1429 (1998). The presumptive sanction for such conduct is disbarment or indefinite suspension. Matter of Schoepfer, 426 Mass. 185, 187(1997).

2. Balancing of harms. The respondent asserts that he has retired from the practice of law. He argues that, if his license to practice is temporarily suspended, he will be deprived of an ability to buy and sell real estate. He also argues passionately for his good name and maintains that he was forced into taking certain actions because of what he describes are the overly aggressive practices of the Massachusetts Department of Revenue. There may or may not be merit to his claims. I cannot say, and leave that to others. He certainly has a significant property interest in his license to practice law. See Matter of Kenney, 399 Mass. 431, 436 (1987). I am satisfied, however, even accepting his assertions about the origins of his present circumstances, that the respondent was in a position to contain the problem and not allow it to spread to these clients.

This case does not appear to involve an isolated incident. I base this in part on the documents offered by assistant bar counsel as Exhibit I (affidavit of Donald E. McGurk in support of the Commissioner of Revenue's motion for summary judgment, and the commissioner's motion for summary judgment in Clinton Savings Bank vs. The Commonwealth of Massachusetts Department of Revenue, et al. (Suffolk Superior Court, Civil Action No. 05-4160-H). I also base this on the representations of Mr. Mason in which he described the domino effect on his real estate practice caused by a levy of the Massachusetts Department of Revenue. The instant case may well be the tip of the iceberg. I also consider the fact that the respondent has failed to render an accounting of the mortgage proceeds in this case, as requested by assistant bar counsel. The Commonwealth has "a significant interest in protecting the public from attorneys who engage in serious misconduct, particularly when the misconduct involves misuse of clients' funds or a compromising of the fiduciary relationship. There is also a strong interest in maintaining the integrity of the bar." Matter of Kenney, supra.

I conclude that the respondent poses a threat of substantial harm to present or future clients, if he has not retired. Matter of Ellis, supra. Even if he has retired, to the extent he continues to rely on his license to practice law to facilitate real estate transactions, he has demonstrated an inability to conform his conduct to ethical requirements in the face of mounting economic pressures, and I see no alternative but to order that his license to practice law be suspended forthwith.

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

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