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Commonwealth of Massachusetts

NO. BD-2006-035


S.J.C. Judgment of Disbarment entered by Justice Cowin on October 5, 2006.2

This matter was submitted to the Court on an affidavit whereby the respondent waived the institution of formal disciplinary proceedings and consented to his disbarment pursuant to S.J.C. Rule 4:01, ß 8(3).

In his affidavit, the respondent acknowledged that the material facts underlying the following charges could be proved by a preponderance of the evidence. In the fall of 2001, the respondent was engaged by an elderly client to take over the administration of the clientís assets from one of her brothers, who had previously managed her financial affairs. The client had assets in an inter vivos trust of which she was trustee and additional assets in her name personally. The client had a will nominating her brother as executor of her estate, and the brother also held her power of attorney. The respondent effected the execution of an amendment to the clientís trust declaration by which he became successor trustee, a codicil to her will by which he was nominated as executor of her estate, and a durable power of attorney appointing him as her attorney in fact.

The client died in January 2002. By then, the respondent had taken control of trust assets held in bank deposits and securities accounts with a total value of at least $538,000. Under the clientís trust declaration, all of the trust assets were to be distributed upon her death according to a schedule of individual and charitable beneficiaries. In addition, the respondent then had custody of at least $313,000 in bank deposits held by the client personally.

The clientís original will could not be located after her death. In June 2002, the respondent filed a petition in the probate court for probate of a copy of the will with the original codicil and for his appointment as executor of the estate. Objections to his appointment were filed but were not prosecuted. Thereafter the respondent failed to pursue the probate or obtain the appointment of an estate fiduciary.

Between early 2002 and December 2004, the respondent made partial distributions of the trust assets to the individual beneficiaries totaling about $181,700 and paid himself at least $44,450 as legal and trustee fees and reimbursements for administrative expenses. The respondent then made no distributions to the charitable beneficiaries. During the same period, the respondent misappropriated at least $300,000 from the remaining funds of the trust and $15,000 from the estate assets. Without the knowledge or authority of the trust and estate beneficiaries, the respondent applied those funds to pay unrelated business or personal expenses. The respondent thereby converted a total of at least $315,000 in funds of the clientís trust and estate to his own use. The respondent misused those funds intentionally, with the intent to deprive the beneficiaries of their funds at least temporarily, and with actual deprivation of the beneficiaries resulting.

During 2004, some of the trust beneficiaries asked the respondent for an accounting of the trust assets and for documentation of the status and whereabouts of those assets. The respondent failed to provide an accounting or any records to the beneficiaries. In December 2004, one of the beneficiaries filed an equitable action in the probate court seeking, among other things, an immediate accounting by the respondent of his administration of the trust assets. The same beneficiary filed a petition in the probate court in February 2005 for the respondentís removal as trustee. In May 2005, the respondent stipulated to a probate court order requiring him to render a full accounting of the trust assets, with supporting documentation, within sixty days. He failed to comply with the order. In November 2005, the respondent submitted a partial accounting in improper form. In December 2005, the probate court entered a further order requiring the respondent to file full accountings, in proper form, for all the trust assets.

In February 2006, the respondent made partial restitution of the converted trust funds by depositing about $215,000 of his own funds to a bank account he maintained for the trust in his name as trustee (trust account). In early March 2006, the respondent withdrew a total of $112,000 from the trust account and applied those funds to effect partial distributions to the charitable beneficiaries, leaving about $103,000 on deposit in the account.

In late March 2006, the respondent filed amended accounts for the trust assets in the probate court. Those accounts were false, inaccurate and incomplete. Among other things, the respondent intentionally misrepresented in those accounts that he had held about $302,000 in trust assets as of December 31, 2004, and was then holding trust assets of about $143,000. The respondent did not disclose to the probate court or the beneficiaries that he had misappropriated and dissipated virtually all the trust funds prior to December 31, 2004, that he had made the distributions to the charitable beneficiaries in March 2006 using his own funds, and that he had failed to restore all of the converted funds. The respondent resigned as trustee in May 2006. He still owes restitution of the remaining assets of the trust and estate.

The respondent failed to make or maintain complete and accurate records of his receipt, handling, maintenance and disposition of all the trust and estate assets, and he has never accounted adequately for all the assets. As a result, the full extent of his misappropriations could not be ascertained.

The respondentís commingling of personal and fiduciary funds and his conversion of the trust and estate funds, failure to safeguard and segregate the funds, and failure to make timely distribution of all the funds violated Mass. R. Prof. C. 1.15(a), (d) and (e), as in effect through June 30, 2004; Mass. R. Prof. C. 1.15(b), as in effect from and after July 1, 2004; and Mass. R. Prof. C. 8.4(c) and (h). The respondentís failure to maintain adequate records for the funds and account adequately for all the funds violated Mass. R. Prof. C. 1.15(a) and (b), as in effect through June 30, 2004 and Mass. R. Prof. C. 1.15(d) and (f), as in effect from and after July 1, 2004. His intentional misrepresentations in his probate accounts violated Mass. R. Prof. C. 8.4(c), (d) and (h).

The respondent was admitted to practice in 1973 and was temporarily suspended from practice in the Commonwealth on May 26, 2006. On October 5, 2006, the Court entered a judgment disbarring the respondent from the practice of law in the Commonwealth, effective on the date of entry.

1 See 22 Mass. Att'y Disc. R. ___ (2006) for prior proceedings.

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

3 Compiled by the Board of Bar Overseers based on the record before the Supreme Judicial Court.

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