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Commonwealth of Massachusetts

NO. BD-2006-060

IN RE: BRIAN J. SIMONE

S.J.C. Judgment of Disbarment entered by Justice Cordy on October 30, 2007.1

SUMMARY2

This matter came before the Court on the respondentís affidavit of resignation pursuant to S.J.C. Rule 4:01, ß 15. The respondent admitted in his affidavit that the material facts described in bar counselís statement of charges could be proven by a preponderance of the evidence, as follows.

On January 13, 1977, Mary and her daughter acquired title as joint tenants with rights of survivorship to a residential property located in the Boston area. In September of 2001, Mary became incapacitated and commenced to reside at a nursing home in Dorchester. On September 14, 2001, the respondent was appointed temporary guardian of Mary by the Suffolk County Probate and Family Court. The respondentís temporary appointment expired on December 13, 2001. The respondent was never appointed permanent guardian.

In the spring of 2002, after his guardianship expired and without the knowledge or consent of the owners of the property, the respondent contacted the tenant of the property and entered into negotiations with her to sell the property to her and her friend (the buyers). The respondent told the tenant that he would secure a lender and advised her that she and her friend did not need to get another attorney to represent their interests in this transaction. The respondent secured a mortgage for the buyers in the amount of $215,920.

On May 17, 2002, the respondent received a check in the amount of $13,500 as a deposit on the property from the buyerís friend. On May 24, 2002, the respondent deposited the check into his personal savings account. On October 28, 2002, the balance of that account was $3,748.66. Between the date of deposit and October 28, 2002, the respondent intentionally misappropriated the funds for personal purposes.

On October 11, 2002, the lender wired to the respondentís IOLTA account funding proceeds in the amount of $220,265.73. On October 17, 2002, the respondent acted as settlement agent and closed on the loan on behalf of the lender, the putative sellers and the buyers. He forged the name of each of the sellers on a quitclaim deed (the deed), purporting to transfer the property to the buyers, and he purported to notarize the signatures of the sellers on the deed. The respondent knew that neither of the supposed sellers was aware of or agreed to the sale, and that neither seller had signed the deed. The respondent also knew, or had reason to know, that Mary was not competent to execute the deed.

On October 28, 2002, the respondent intentionally transferred $200,000 of the net sale proceeds from his IOLTA account into a law office operating account without any payment to or for the benefit of the sellers. The balance in the respondentís operating account just prior to the deposit was $579.04.

On November 4, 2002, without any intervening deposits, the respondent transferred $175,000 from his operating account into a personal savings account and thereafter intentionally misappropriated the funds for personal purposes. On March 26, 2003, the balance in the respondentís personal savings account was $159,043.50. By September 25, 2003, the account balance was $64,715.12. The respondent intended to deprive the owners of the funds and actual deprivation resulted from his conduct.

On October 30, 2003, the respondent, knowing that the deed was a forgery, recorded the deed or caused the deed to be recorded at the Suffolk County Registry of Deeds.

As a result of the respondentís conduct, the buyersí title was defective and the sellers did not receive funds that they (or the estate of a seller) were entitled to receive. Litigation resulted that was pending as of the date of the respondentís resignation.

The respondentís conduct in intentionally misappropriating trust funds for personal or business purposes and in failing to promptly deliver to a client or third party the funds that the client or third party was entitled to receive, all with intent to deprive and actual deprivation resulting, was in violation of Mass. R. Prof. C. 1.15(a) and (b), as appearing in 426 Mass. 1301, 1363 (1997), in effect January 1, 1998 through June 30, 2004 and Mass. R. Prof. C. 8.4(c) and (h). The respondentís conduct in signing and notarizing the signatures of sellers of real property to a deed transferring title, and causing the deed to be recorded, all without the sellersí knowledge, consent or authorization, was in violation of Mass. R. Prof. C. 8.4(c) and (h). The respondentís conduct in purporting to act on behalf of a ward after his fiduciary appointment expired was in violation of Mass. R. Prof. C. 8.4(c) and (h).

On October 15, 2007, the Board voted to recommend that the affidavit of resignation be accepted and that an order of disbarment enter, retroactive to July 6, 2006, the date on which the respondent had been temporarily suspended. On October 30, 2007, the Supreme Judicial Court for Suffolk County so ordered.


FOOTNOTES:

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 filed with the Supreme Judicial Court.



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