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Commonwealth of Massachusetts

NO. BD-2007-117

IN RE: STEVEN A. KRESSLER

S.J.C. Order of Public Reprimand entered by Justice Ireland on February 26, 2008, with an effective date of March 27, 2008.1

SUMMARY2

The respondent was publicly reprimanded for his misconduct in the representation of a client in two separate matters as set forth in a two count petition for discipline. The facts as found by the special hearing officer are as follows.

In the first matter, the client retained the respondent to advise him whether and when to file personal bankruptcy. The respondent knew that the client owed over $12,000 in student loans, $23,000 in income taxes for the years 1990 to 1996, and $25,000 to $30,000 in unsecured loans, mostly credit card debt. The respondent was also aware that in October 1998 an amendment to the Bankruptcy Code was taking effect that would eliminate the clientís ability to discharge his student loans. The respondent never advised the client about this upcoming change. Instead, the respondent advised the client incorrectly that he believed the student loans were not collectible due to the Massachusetts twenty-year statute of limitations applicable to promissory notes. The respondent told the client that he needed to do some research to confirm the accuracy of this opinion, but he did no legal research until after October 1998.

In November 1999, the respondent filed a Chapter 7 voluntary bankruptcy petition on the clientís behalf, and in May 2000, the client was granted a discharge. By waiting until 1999 to file the bankruptcy, rather than filing before the October 1998 statutory amendment, the clientís student loans were not discharged and only one additional year of tax debt, totaling no more than $4,000, was discharged. The client was thus precluded from discharging a net of about $8,000 of debt.

The respondentís failure to discuss with or cause his client to make a decision prior to the October 1998 statutory amendment as to whether he wanted to file for bankruptcy before the change in order to discharge his student loans and his failure to research whether the Massachusetts twenty-year statute of limitations applicable to promissory notes was also applicable to student loans violated Mass. R. Prof. C. 1.3, and 1.4(a) and (b).

In the second matter, the same client retained the respondent to file an offer in compromise with the IRS in May 2000, immediately following the bankruptcy discharge. Despite the clientís repeated requests that he file the offer and the clientís receipt of a notice of levy for $11,303.36 in December 2001, the respondent did not file the offer in compromise until January 2002.

The respondentís failure to file the offer in compromise for twenty months after having been retained to do so violated Mass. R. Prof. C. 1.1, 1.2(a), and 1.3.

In aggravation, the respondent had a history of prior discipline. In 1987, the respondent received a private reprimand for failing to appeal a summary process judgment evicting his client and for neglecting matters for which he had been retained by another client. In 2003, he received an admonition for failing to timely refund an unearned retainer. In further aggravation, the respondent had substantial experience in the practice of bankruptcy law, and the respondent disregarded his clientís right to have the necessary information to make his own choices in both matters regarding the representation.

A Special Hearing Officer heard the matter in May and June 2006 and recommended on November 8, 2006 that the respondent receive a public reprimand. On October 15, 2007, the Board decided to conclude the matter by admonition. Bar counsel requested that an information be filed with the Supreme Judicial Court for Suffolk County, and on February 26, 2008, after hearing, the single justice ordered that the respondent be publicly reprimanded.


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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