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Commonwealth of Massachusetts

NO. BD-2007-104

IN RE: THEODORE SCOTT GELLER

S.J.C. Judgment of Disbarment entered by Justice Cowin on December 20, 2007.1

SUMMARY2

The respondent engaged in misconduct in four separate matters. The respondent, among other things, converted funds in two of the four matters. In the remaining matters the respondent made intentional misrepresentations to clients and to bar counsel, and fabricated documents, which he provided to bar counsel to support his claims. The respondent resigned and was disbarred.

In early 2005, the respondent’s client hired him to seek a modification of an order that he pay child support. The client paid the respondent $300 as his fee. The respondent performed no work of substance on the client’s matter. The client terminated the respondent’s services and demanded a refund of his $300. The respondent failed to respond to the client’s request. When the respondent failed to respond to his demand, the client forwarded a request for investigation of the respondent’s conduct to the Office of Bar Counsel.

Bar Counsel forwarded the client’s complaint to the respondent with a letter requesting a reply. On or about the date that his reply to bar counsel was due, the respondent refunded his unearned fee of $300 to his client. The respondent then provided his reply to bar counsel in which falsely denied that he had ever agreed to represent the client. In addition, the respondent provided bar counsel with two letters that purportedly documented a refund to the client at an earlier date. The respondent fabricated those letters.

By failing to act with reasonable diligence in handling his client’s matter, the respondent violated Mass. R. Prof. C. 1.3. By failing to refund his unearned fee within a reasonable time after he was discharged, the respondent violated Mass. R. Prof. C. 1.16(d). By misrepresenting to bar counsel his professional relationship with the client and by intentionally providing bar counsel fabricated letters, the respondent violated Mass. R. Prof. C. 3.4(b), 8.1(a) and 8.4(c).

In June 2005, a second client hired the respondent to represent her in two criminal matters. The client’s mother posted bail of $2,500 on her daughter’s behalf and paid the respondent $1,050 as his fee for his representation in the criminal matters. In September 2005, the client entered a guilty plea in one of the criminal matters. The order of bail was revoked and the client’s mother was entitled to the return of the $2,500 bail.

The respondent agreed to retrieve the bail money on behalf of the client and her mother. The respondent directed the client to sign a release authorizing him to receive the bail money on her behalf. The respondent understood that he was not authorized to keep any portion of the bail money and was to deliver the $2,500 to the client’s mother.

The respondent received the $2,500 bail from the court. The respondent deposited these funds into his IOLTA account and thereafter converted them to his own use. The client’s mother made several demands for the return of the $2,500 and for an itemized bill from the respondent. The respondent failed to return the funds or provide an itemized bill.

In April 2007, the client sent a request for investigation of the respondent’s conduct to the Office of Bar Counsel. Bar counsel forwarded the client’s complaint and requested an accounting of the respondent’s fee and the disposition of the $2,500 bail money. Bar counsel also requested a copy of the release authorizing the respondent to receive the money from the court on behalf of the client. Bar Counsel also requested a copy of the agreement, if any, authorizing the respondent to keep the funds.

The respondent refunded $1,700 of the $2,500 to the client’s mother. The respondent falsely asserted to bar counsel that the remaining $800 constituted fees for the services he rendered in the criminal matters. To support his assertion, the respondent provided to bar counsel a document entitled, “Bail Assignment and Payment”. The document purported to be a signed agreement between the client and the respondent giving the respondent the right to retain the $2,500 as his fee. The respondent fabricated the document.

By failing to keep the $2,500 funds in a trust account and by failing promptly to turn the funds over to the client’s mother, the respondent violated Mass. R. Prof. C. 1.15(b)(1) and (c). By converting his client’s funds, the respondent violated Mass. R. Prof. C. 8.4(c). By failing to provide an accounting upon demand by the client, the respondent violated Mass. R. Prof. C. 1.15(d)(1). By falsely claiming to bar counsel that he was entitled to the funds as a fee and by providing to bar counsel the fabricated release and agreement regarding the $2,500 bail money, the respondent violated Mass. R. Prof. C. 3.4(b), 8.1(a) and 8.4(c).

In January 2006, a third client hired the respondent to represent him in a child custody matter and to file a bankruptcy petition. The respondent received a flat fee for the bankruptcy matter and requested a $200 retainer for the child custody matter. The client paid the respondent $900. The respondent failed to place the retainer in a client funds or IOLTA account. The respondent failed to inform the client in writing that he had taken the $200 as a fee and failed to inform the client that he held no retainer on the client’s behalf. The respondent performed no work of substance in either of the client’s matters.

In October 2006, the client terminated the services of the respondent and demanded a refund of the $900 he had paid to the respondent. The respondent refunded the client’s money in installments between October and January 29, 2007. On January 13, 2007, before the respondent had completely refunded his money, the client filed a request for an investigation of the respondent’s conduct with the Office of Bar Counsel asserting that the respondent had neglected his matter and had failed to fully refund the fee he had collected.

Bar counsel forwarded the client’s grievance to the respondent and requested his reply. The respondent provided a response in which he falsely denied that he had neglected the client’s matter. In addition, the respondent falsely asserted that the client had failed to respond to his requests for information. To support his claims, the respondent provided to bar counsel seven letters purportedly addressed to the client requesting information. The respondent fabricated at least four of the seven letters he provided to bar counsel.

By failing to act with reasonable diligence in handling his client’s matters, the respondent violated Mass. R. Prof. C. 1.3. By failing to deposit the trust funds belonging to his client into his IOLTA account, and failing to timely refund to his client his unearned fee, the respondent violated Mass. R. Prof. C. 1.15(b), (d)(2), and 1.16(d). By intentionally misrepresenting to bar counsel that he had not neglected the case and that the client had not responded to requests for information, the respondent violated Mass. R. Prof. C. 8.1(a) and 8.4(c). By fabricating letters and providing the fabricated documents to bar counsel, the respondent violated Mass. R. Prof. C. 3.4(b) and 8.1(a) and 8.4(c).

A client in a fourth matter hired the respondent in early 2005 to petition the United States Customs Service (Customs) for the return of $31,000, which Customs had seized. The respondent successfully petitioned for the return of the $31,000 and received the funds sometime in October 2005. The respondent did not notify the client that he had received the funds and he did not promptly turn the funds over to the client.

Between October 2005 and November 2007, the client made several requests to the respondent regarding the status of his petition. The respondent advised the client that he had successfully petitioned for the return of the seized money, but falsely represented that Customs would be making monthly payments that the respondent would then forward to the client. The respondent paid the client $21,750 of his funds. The respondent failed to pay the client the remainder of his funds prior to initiation of the disciplinary proceedings against him.

By failing to apprise his client that the petition for the return of his funds had been filed and that he had received the funds, the respondent violated Mass. R. Prof. C. 1.4(b) and 1.15(c). By advising the client falsely that Customs was returning his money to the respondent in monthly installments and failing promptly to turn over the funds to the client, the respondent violated Mass. R. Prof. C. 1.15(c) and 8.4(c). By failing to account for the funds at the request of his client, the respondent violated Mass. R. Prof. C. 1.15(b) and (d). By converting his client’s funds, the respondent violated Mass. R. Prof. C. 8.4(c).


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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