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Commonwealth of Massachusetts

NO. BD-2009-081

IN RE: GARY M. LEE

S.J.C. Order of Term Suspension entered by Justice Cowin on September 25, 2009.1

SUMMARY2

The respondent, Gary M. Lee, Esq., is an attorney duly admitted to the bar of the Commonwealth on December 14, 1988. In 2004, the respondent, who was also a licensed real estate broker, entered into a series of listing agreements with a property owner for the sale of property located in Norwood, MA, for a broker’s commission of 6%.

When an offer was later generated, the respondent prepared a purchase and sales agreement that provided for a sale price of $1,500,000 and a broker’s commission reduced to 4%. When the respondent obtained the seller’s signature on the agreement, he knowingly misrepresented to the seller that the total commission would be 4% on the sale of the property at a sale price of $1.5 million, when in fact the respondent intended to collect a total commission of 6%. The seller reasonably relied on the respondent’s misrepresentation and signed two different P&S agreements, both of which provided for a broker’s fee of 4%. A $100,000 deposit was paid by the buyer and retained by the respondent as escrow agent for the closing. After the closing, the respondent retained $90,000 of the $100,000 deposit, for a commission of 6%.

The seller later sued the respondent in Superior Court and obtained a judgment based upon a jury determination, in answer to special questions, that the respondent falsely misrepresented to the seller that the total commission would be 4% on the sale of the property. The judgment was affirmed on appeal.

The respondent’s conduct, in knowingly misrepresenting to the seller that the broker’s fee would be 4% and then deducting from the escrow funds a fee of 6%, was in violation of Mass. R. Prof. C. 8.4(c) and 8.4(h).

In aggravation, the respondent received an admonition in 1998, AD 98-16, 14 Mass. Att’y Disc. Rep. 834 (1998), for commingling clients funds with lawyers’ funds, failure to maintain proper records of client’s property and a notice of a dishonored check. He also received a term suspension of six months (with three months of that suspension stayed and suspended for two years, subject to probationary terms) in 2001, 17 Mass. Att’y Disc. Rep. 358 (2001), based upon convictions for domestic violence and violations of abuse prevention orders. In further aggravation, the respondent received a term suspension of three months in 2007, 23 Mass. Att’y Disc. Rep. 393 (2007), for charging an excessive fee to a client who was an unsophisticated widow, and for having the client sign a release in exchange for a return of part of the fee she paid, while she was unrepresented by counsel and without first advising her in writing that independent representation was appropriate.

In mitigation, the total amount owed by the respondent was $100,000. Of this, he has paid $75,000 and has entered into an agreement with the seller to pay the remaining $25,000 (in five monthly installments of $5,000 each) by January 1, 2010.

On September 15, 2009, an order of temporary suspension was entered by the Supreme Judicial Court. On September 25, 2009, the Supreme Judicial Court entered an order suspending the respondent for a year and a day, retroactive to the date of the temporary suspension.


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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