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Commonwealth of Massachusetts

NO. BD-2010-003

IN RE: DEANNA M. SILVA

S.J.C. Judgment of Disbarment entered by Justice Botsford on July 16, 2010.1

SUMMARY2

On July 16, 2010 the Supreme Judicial Court for Suffolk County ordered that the respondent, Deanna M. Silva, be disbarred for conversion of trust funds in three separate cases and for failure to cooperate with bar counselís investigations resulting in an administrative suspension. In addition, on June 30, 2010, a commissioner was appointed by the Supreme Judicial Court to take control and possession of all the respondentís client files and to take appropriate action to protect the interests of the clients.

In the first case, the respondent represented the husband in a divorce matter. After the marital home of the divorcing parties was sold, the respondent agreed to hold the net proceeds in escrow for the benefit of the parties. Between July and 2008 and May 2009, the respondent intentionally misused at least $40,590.84 belonging to the parties to pay unrelated business and personal expenses.

In December 2008, the respondentís client discharged her and hired successor counsel. Beginning in March 2009, successor counsel requested that the respondent provide documentation that the escrow funds were intact and that she release the escrow funds to the parties.

In May 2009, the respondent transferred a total of $40,590.84 to the escrow accounts held for the parties from funds belonging to an unrelated client. By letter to successor counsel and her former client, the respondent falsely represented that the escrow funds had been held intact for the parties, and she provided fabricated bank statements for the escrow accounts to support her misrepresentations and to conceal her misuse of the escrow funds. The respondent also provided bank checks for the funds due the husband and wife.

The respondentís intentional misuse of escrow funds for her own business or personal purposes violated Mass. R. Prof. C. 1.15(b), (d), and (f), and 8.4 (c) and (h). The respondentís misrepresentations to her former client and successor counsel that she had kept the escrow funds intact in the escrow accounts and her fabrication of bank records to conceal her misappropriation violated Mass. R. Prof. C. 1.4(a), 3.4 (b) and 8.4 (c) and (h).

The second case concerned the respondentís representation of an elderly client, then 85 years old. In the fall of 2008, the respondent was retained to assist the client with the payment of her bills, to finalize her funeral arrangements and to file a Mass Health application.

The respondent obtained from the clientís niece, who held the clientís power of attorney, two checks totaling $76,358.31. The respondent deposited the clientís funds to her IOLTA account. Between February and May 2009, the respondent intentionally used $54,034.79 of the clientís funds, for personal and business purposes unrelated to the client. Included in the misused funds were the transfers of a total of $40,590.84 from her IOLTA account to the escrow accounts in the first case described above.

Thereafter, the respondent failed to communicate with the client and to pay her bills at the nursing home. By certified letter in October 2009, the client discharged the respondent and requested, among other things, her file, an accounting and a return of her funds. The respondent failed to respond and failed to provide the client with the requested documentation, an accounting and a refund. The client suffered continuing deprivation of her funds.

The respondentís failure to maintain and safeguard the clientís funds and intentional conversion of the clientís funds with actual deprivation resulting violated Mass. R. Prof. C. 1.15(b), (d) and (f), and 8.4 (c) and (h). The respondentís failure to adequately communicate with the client regarding the status of her financial affairs violated Mass. R. Prof. C. 1.4. The respondentís failure upon termination to account for the clientís funds, to surrender the funds to which the client was entitled and to provide the clientís documentation violated Mass. R. Prof C. 1.15(d)(1) and Mass. R. Prof C. 1.16 (d) and (e).

In the third case, the respondent, as seller, signed a purchase and sale agreement with the buyers for property in Dorchester. The buyers provided the respondent with a deposit totaling $7,500 to be held in escrow. The respondent deposited the escrow funds to her IOLTA account, and intentionally misused the buyersí deposit to pay a personal loan.

At the scheduled closing, the respondent did not provide the necessary documentation to establish her title to the property and requested a thirty-day extension. Counsel for the buyers made a demand for the return of buyersí deposit. The respondent failed to respond and failed to return the buyersí escrow funds.

The respondentís failure to maintain and safeguard the buyersí escrow funds and intentional conversion of the escrow funds with actual deprivation resulting violated Mass. R. Prof. C. 1.15(b), (d) and (f), and 8.4(c) and (h).

Finally, the respondent failed without good cause to respond to bar counselís requests for information made in the course of investigating the respondentís conduct in these matters. On January 15, 2010, the respondent was administratively suspended pursuant to Supreme Judicial Court Rule 4:01, ß 3(2) for failure to cooperate with bar counselís investigations. The order of administrative suspension required the respondent to comply with all of the provisions of S.J.C. Rule 4:01, ß17, if the respondent was not reinstated within thirty days from the date of the order. The respondent was not reinstated by February 15, 2010. The respondent knowingly failed without good cause to comply with the order of administrative suspension. She failed to file an affidavit of compliance with the Office of the Bar Counsel and a copy with the Supreme Judicial Court per the Courtís order in violation of Supreme Judicial Court Rule 4:01, ß 17(5).

The respondentís repeated failures to cooperate with bar counselís investigation violated Mass. R. Prof C. 8.4 (d), (g), and (h) and S.J.C. Rule 4:01, ß 3. The respondentís conduct in failing upon administrative suspension to account for the clientís escrow funds and to refund the unearned portion of the escrow funds, and to provide the clientís documentation violates S.J.C. Rule 4:01, Section 17(1)(f). The respondentís failure to file an affidavit of compliance with the Office of the Bar Counsel and a copy with the Supreme Judicial Court per the Courtís order violates Supreme Judicial Court Rule 4:01, ß 17(5) and Mass. R. Prof. C. 8.4(d).

In aggravation, the respondent failed to file an answer to the Petition for Discipline. The failure to cooperate in the disciplinary process is itself misconduct (S.J.C. Rule 4:01 ß 3(c)) and is appropriately considered in aggravation of other misconduct.

On June 14, 2010, the Board of Bar Overseers voted unanimously to recommend that the respondent be suspended from the practice of law for one year and one day, and on July 16, 2010, the Supreme Judicial Court for Suffolk County (Botsford, J.) ordered that the respondent be disbarred.


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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