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Commonwealth of Massachusetts

NO. BD-2010-067


S.J.C. Judgment Accepting Affidavit of Resignation As A Disciplinary Sanction entered by Justice Botsford on July 27, 2010.1


In 2001, the respondent created an estate plan for a client and drafted the necessary documents, consisting of a will, a revocable trust and a nominee trust that held the client’s home. The will made no specific bequests and poured the residue of the client’s estate into the revocable trust. The trust set forth specific cash gifts totaling about $310,000. The gifts included $50,000 to two nephews, and $50,000 to a long-term friend of the client’s. Gifts of $10,000 were made to other family members and to several charities. The remainder was directed into equal trusts for the nephews. The respondent was named executor of the client’s will and a co-trustee with the client, of both the revocable and nominee trusts.

In 2002, the client executed an amendment of the revocable trust drafted by the respondent. By the terms of the amended trust, the first nephew would receive the house, and second nephew would receive $100,000, instead of $50,000. The amendment did not change any other gifts or the disposition of funds remaining after the gifts were distributed.

The client died in June, 2005. Soon thereafter, the respondent undertook to probate the will and administer the trust. During the fall and early winter of 2005, the respondent marshaled the client’s assets, and opened accounts for both the estate and the trust.

In November 2005, the respondent sent a letter to each of the beneficiaries of the trust, notifying them that he was prepared to distribute the trust funds in accordance with the trust, and that he would do so after each beneficiary executed and returned to him a release and assent to a First and Final Account. The respondent enclosed the release and assent with the letter to each beneficiary. However, the respondent did not enclose an account, as no account had yet been prepared. After each of the beneficiaries returned the signed release, the respondent paid him or her, by check written on the trust account, the full amount set forth in the trust.

In December 2006, the respondent filed a First and Final Account with the Middlesex Probate Court. The account was inaccurate. The respondent also filed the beneficiaries’ assents to the account, which they had signed without seeing the account.

The respondent charged the estate and trust at the rate of $200 per hour. He paid himself a total of $43,833 in fees and expenses. The respondent did not adequately maintain time records that supported the hours that he billed and the fees he collected.

At the client’s death, the respondent became the sole trustee of the nominee trust which held the client’s home. In accordance with the Trust, the respondent transferred the house to the first nephew, and recorded the deed. The respondent assured the nephew in writing that he had reserved sufficient estate monies to deal with any reasonable tax liability to the estate. However, prior to receiving an estate tax closing letter from the Massachusetts DOR, the respondent distributed all of the funds in the estate and filed his First and Final Account. He failed to set aside sufficient money aside to pay the full tax liability. When the DOR assessed additional taxes of about $32,000 against the estate, the respondent informed the first nephew that the tax deficiency was the nephew’s responsibility.

The respondent admitted that the Board and Court could conclude that:

In mitigation, during the relevant time period, a close family member became very ill with a life-threatening disease. The respondent was distracted from his responsibilities because he was the family member’s primary care-giver.

The respondent was admitted to practice in Massachusetts on March 1, 1969. He had no previous disciplinary history.

The matter came before the Court, (Botsford, J.) on an affidavit of resignation submitted by the respondent pursuant to S.J.C. Rule 4:01, § 15; a letter from assistant bar counsel to general counsel dated June 24, 2010, recommending that the respondent’s resignation be accepted as a disciplinary sanction; and the recommendation and vote of the Board of Bar Overseers filed by the board on July 20, 2010.

On July 27, 2010, the Court issued an order accepting the affidavit of resignation of the respondent as a disciplinary sanction and striking the respondent’s name from the Roll of Attorneys.


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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