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Commonwealth of Massachusetts

NO. BD-2007-066

IN RE: JAMES RUSSELL HODGDON

S.J.C. Order of Term Suspension entered by Justice Cordy on July 26, 2007, with an effective date of August 26, 2007.1

SUMMARY2

The respondent was suspended for three months for neglect of two client matters and failure to cooperate Bar Counselís investigation of both matters.

In the first matter, the respondent represented clients and their lender in connection with their purchase of a home in April of 2001. At the closing of that transaction, the respondent received funds to pay off a mortgage granted by the sellers, and did so. However, after paying off the sellersí mortgage, the respondent either failed to obtain a discharge of the sellersí mortgage from the sellersí lender, or obtained it but failed to record it. Thereafter, the clients refinanced their home on various occasions. At no time did the intervening lenders notice that there was no discharge on record of the sellersí mortgage.

In 2006, the clients agreed to sell their house and a closing was scheduled in June. In researching the title, the lawyer for the new buyersí lender discovered that the sellersí mortgage had not been discharged. Because of time pressures on the clients (who were moving out of state and also buying another house, in part to be financed by the proceeds of the sale of their Massachusetts home), they had to acquiesce to the insistence of the new buyersí lender that the clients pay for their title insurance. The day before the closing, the respondent agreed in writing to indemnify and hold harmless the new buyerís lenderís attorney from any loss occasioned by the lack of the recorded discharge.

In July of 2006, the clients filed a grievance with the Office of the Bar Counsel concerning the respondentís failure to obtain or record a discharge of their sellerís mortgage following the 2001 closing. Thereafter, the respondent failed without good cause to respond to several requests by Bar Counsel for a response, requiring bar counsel to obtain a subpoena to compel his attendance at a meeting, which the respondent attended.

Thereafter, the respondent reimbursed the clients in full for the cost of the title insurance they purchased in order to be able to sell their Massachusetts home. The lawyer representing the purchasers of the clientsí home obtained and recorded a discharge of the mortgage in question.

The respondentís conduct in failing either to obtain, or in obtaining but failing to record, a discharge of the sellerís mortgage, was in violation of Mass. R. Prof. C. 1.1, 1.2(a) and 1.3. His conduct of failing without good cause to respond to Bar Counselís inquiries or otherwise to cooperate with Bar Counsel until he received a subpoena was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01, ß 3.

In the second matter, the respondent was retained in February of 2003 on an hourly basis by other clients (husband and wife) to probate the estate of the wifeís aunt. In a timely manner, the respondent attended to various aspects of the estate, including the obtaining the wifeís appointment as executrix, arranging for the sale of the decedentís house and car, and distributing her assets; however, no first and final account was finalized by the respondent.

The deceased aunt also had life insurance policies payable to two minor children, who were not the clientsí children. The insurer refused to make payments to the minor children because they were not of legal age. Therefore, on about January 20, 2005, the clients retained the respondent to have legal guardians appointed for the minors so that their life insurance benefits could be paid. The clients also paid an additional retainer for this work as well as funds towards the completion of probating the auntís estate.

The respondent drafted the petition for guardianship and bond, and sent them to the clients for their signatures in February of 2006. Thereafter, the clients made repeated calls to the respondentís office between February 2006 and July 2006 with questions about the petition, but received no communication or correspondence from the respondent.

In July of 2006, the clients hired new counsel who also attempted unsuccessfully to contact the respondent to obtain the files, an accounting, and the refund of any balance of the retainer. In September of 2006, the clients filed a grievance with the Office of the Bar Counsel alleging the respondentís unresponsiveness, including his failure to return their calls, to turn over their files after being discharged (for being unresponsive), to provide a final bill and to return any unused portion of the retainer.

Thereafter, the respondent failed without good cause to respond to several requests by Bar Counsel for a response, requiring bar counsel to obtain a subpoena to compel his attendance at a meeting and to bring his files and itemized bills. The respondent appeared before Bar Counsel on October 10, 2006, but did not bring the file or the copies of the bills. On October 23, Bar Counsel sent the respondent a letter requesting a copy of the clientsí file and evidence that the file had been sent to their new counsel. The next day, October 24, 2006, the respondent provided Bar Counsel with a copy of the file. The respondent also provided portions of the clientsí file to successor counsel, but it was incomplete.

Bar Counsel then sent the respondent a letter, requesting that the respondent refund any unused portion of the clientsí retainer and requesting the respondent provide Bar Counsel with copies of the clientsí itemized bills before November 3, 2006. The respondent received this letter in due course and failed without good cause to respond.

On November 8, 2006, Bar Counsel sent the respondent another letter, again requesting copies of the clientsí bills for services and proof that the respondent had refunded the unused portion of their retainer. The respondent was given until November 20, 2006, to comply with Bar Counselís request. The respondent received this letter in due course and failed without good cause to respond.

On November 22, 2006, the respondent telephoned Bar Counsel to state that he would be mailing the clientsí refund to them on Friday, November 24, 2006. He did not do so. As a result, yet another subpoena was issued to the respondent, requiring him to appear at the Office of Bar Counsel on December 15, 2006. The matter was continued and the respondent appeared on December 16, 2006.

Meanwhile, the respondent faxed Bar Counsel a copy of the check that he issued to the clients for the unused portion of their retainer. The respondent also provided successor counsel with bills that corresponded to the amount charged by the respondent and his refund to the clients.

The respondentís conduct in failing to conclude the administration of the estate or to file or complete the guardianship applications is conduct in violation of Mass. R. Prof. C. 1.3. His failure to respond to the clientsí repeated inquiries concerning the estate and guardianship was in violation of Mass. R. Prof. C. 1.4. His failure to provide a timely accounting of the clientsí retainer and to refund the balance of the retainer upon termination of representation was in violation of Mass. R. Prof. C. 1.15(d) and 1.16(d). His failure to turn over the client files upon termination of representation was in violation of Mass. R. Prof. C. 1.16(e).

The respondentís conduct of twice failing without good cause to respond to Bar Counselís inquiries or otherwise cooperate with Bar Counsel until he received a subpoenas was in violation of Mass. R. Prof. C. 8.4(g) and S.J.C. Rule 4:01 ß 3.

In aggravation, the respondent received a prior public reprimand for neglect of client matters and failure to cooperate with Bar Counselís investigation, resulting in the issuance of two subpoenas to compel his attendance at the Office of Bar Counsel, 21 Mass. Atty. Disc. R. 338 (2005), and an admonition failure to cooperate with Bar Counselís investigation, resulting in the issuance of a third subpoena to compel his attendance at the Office of Bar Counsel. AD-03-39, 19 Mass. Atty. Disc. R. 592 (2003). These matters therefore constituted the respondentís fourth, fifth and sixth subpoenas.

In mitigation, during this period of time, the respondentís wife of twenty-seven years had filed a complaint for divorce and protracted legal proceedings were pending. As a result, the respondent suffered from severe depression and alcohol abuse. The respondent is now receiving professional counseling.

This matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for a suspension of three months with conditions. On July 9, 2007, the Board voted to accept the stipulation and the joint recommendation. On July 26, 2007, the Court entered an order, effective August 26, 2007, suspending the respondent from the practice of law for a period of three months. Prior to reinstatement under S.J.C. Rule 4:01, ß 18(1)(a), the respondent was required to undergo an evaluation by Lawyers Concerned For Lawyers (LCL) and provide it to Bar Counsel, and agreed as a condition of reinstatement to abide by any recommendations of LCL for a period of one year after his reinstatement.


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 before the Supreme Judicial Court.



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