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Commonwealth of Massachusetts

NO. BD-2007-118

IN RE: BERNARD J. MacCALLUM

S.J.C. Judgment of Disbarment entered by Justice Spina on October 2, 2008.1

SUMMARY2

The respondent represented a trust in the sale of real estate. In April of 2006, the trust entered into a purchase and sales agreement to sell real estate in consideration of $435,000.00. The anticipated net proceeds from the sale were about $270,000, that which the respondent understood were to be divided equally between the two co-trustees of the trust, Mr. Smith and Mr. Jones. The respondent received and deposited into his commingled business account two checks respectively in the amounts of $22,000 and $264, 232, representing the full and final payment of the net proceeds, made payable to the trust. Of this, the respondent was entitled to $12.000 as his fee and Smith and Jones were entitled to the remainder ($274,232).

On April 19, 2006, the respondent presented a check in the amount of $100,000 to Smith as his portion of the proceeds from the transaction. The respondent truthfully told Smith that Jones was now claiming he was entitled to 60% of the proceeds based on moral agreement between the former partners. The respondent further told Smith that the balance of the funds would be held in escrow until the dispute was resolved.

On January 8, 2007, the respondent mailed a check in the amount of $100,000 to Jones. Ultimately, the dispute was resolved with Jones agreeing to fifty percent. On July 3, 2007, the respondent mailed to Jones $37,116, the balance of funds owed to Jones based on a fifty-fifty split. Jones did not protest the apparent delay in transmitting the funds to him.

After the above disbursements, the respondent should have held a minimum balance of $37,116 in his account, representing the balance of the funds due to Smith. However, the respondent intentionally misused the trustís funds for personal and business purposes unrelated to the trust. By October 25, 2007, the respondentís account held a negative balance. During that time, no payments were made to or for the benefit of Smith.

At no time did Smith authorize the respondent to use any of his funds being held in escrow nor was he advised that Jones had received his full portion of the proceeds.

The respondentís intentional misuse of escrow funds, with actual deprivation resulting and continuing, and his failure to promptly and timely deliver to Smith and Jones funds that they were entitled to receive, were in violation of Mass. R. Prof. C. 1.15(b) and (c) and 8.4(c) and (h).

The respondentís conduct of depositing trust funds into a business account, not an IOLTA or other interest-earning client trust account commingling was in violation of Mass. R. Prof. C. 1.15(b) and (e)(5).

In aggravation, on February 12, 2008, the responded was suspended for four months effective April 3, 2008, for commingling intentional use of client funds with no intent to deprive and no deprivation resulting.

This matter came before the Court on the respondentís affidavit of resignation. On October 3, 2008, the Court accepted the respondentís affidavit and entered a judgment of disbarment effective April 3, 2008.


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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