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Commonwealth of Massachusetts

NO. BD-1997-0073

IN RE: ALFRED C. W. DANIELS

S.J.C. Order Denying Reinstatement entered by Justice Ireland on September 23, 2003 1

SUPPLEMENTAL FINDINGS OF FACT AND RULINGS OF LAW

On December 18, 1998, the Supreme Judicial Court for Suffolk County (Ireland, J.) entered an order suspending the petitioner from the practice of law for a period of three years retroactive to March 31, 1998.

On February 14, 2002, the petitioner filed a petition for reinstatement in the Supreme Judicial Court. On February 15, 2002, the Supreme Judicial Court referred the petition for reinstatement, along with the petitioner’s completed questionnaire, to the Board of Bar Overseers.

A hearing on the petition for reinstatement was held on April 26, 2002 before a panel consisting of Board of Bar Overseers members Constance L. Rudnick, Esq., Chair; Elizabeth N. Mulvey, Esq.; and Maryanne Frangules. The petitioner was represented by Wayne S. Henderson. Constance V. Vecchione represented Bar Counsel. Michael Fredrickson, General Counsel to the Board of Bar Overseers, was also in attendance.

On or about October 3, 2002, the panel issued Findings of Fact and Rulings of Law recommending that the petitioner be reinstated upon several conditions. On November 7, 2002, Bar Counsel filed an appeal from the panel recommendation.

On or about January 3, 2003, Bar Counsel filed a Motion to Reopen Hearing, which the Board allowed on January 8, 2003. A hearing was conducted before the panel on February 26, 2003. The petitioner testified and the hearing panel received eight exhibits in evidence.

FINDINGS OF FACT

1. For approximately twenty years, the Petitioner and his family have been close personal friends of Robert L. Graves, Jr., a resident of Martha’s Vineyard, and Mr. Graves’ family.

2. Over the course of these twenty years, Petitioner represented Mr. Graves, members of Mr. Graves’ family, and businesses in which Mr. Graves was involved. Petitioner received remuneration for some of the representations, and for some he did not.

3. In or about 1991, a petition was filed in the United States Bankruptcy, Court District of Massachusetts (Boston) concerning Robert L. Graves, Jr., dba Graves Machine & Tool Co., dba Graves Texaco. (Ex. 10)

4. Between 1993 and 1996, Petitioner acted as personal counsel for Mr. and Mrs. Graves in relation to an environmental claim against Packer Co., concerning gas tanks located on the Graves’ gas station property.

5. On or about October 21, 1996, Petitioner entered an appearance in the bankruptcy case for Mr. and Mrs. Graves. (Ex. 10, Tr., )

6. Petitioner’s appearance was in relation to efforts by Compass Bank to obtain possession of real property belonging to the Graves. Compass Bank prevailed before the bankruptcy court. Petitioner agreed to and did represent Mr. and Mrs. Graves in the appeal of the bankruptcy court’s decision. Petitioner received $5,775 for representing the Graves in this appeal.

7. Petitioner had received two other payments of $1000 each from the other Graves for services related to the bankruptcy case, one in December of 1996 and the other in January of 1997.

8. Petitioner did not report any of these payments to the bankruptcy court.

9. Attorney Henderson represented the trustee in bankruptcy in the case against R.M. Packer, which resulted in a substantial recovery to the trustee. The bankruptcy court approved payment of attorney's fees to Mr. Henderson.

10. In or about June 2000, Petitioner received from Mr. Henderson an unsolicited check in the amount of $10,000, which Petitioner characterized as "manna from heaven." Petitioner knew it was related to the services he had rendered relative to the bankruptcy case, and informed Mr. Graves several days after receipt that he had received it. Petitioner did not expect payment from Henderson nor did he ask for it. Bar Counsel has not questioned the propriety or amount of the payment.

11. In or about October 2002, Mr. Graves approached the Petitioner, and told him that in a couple of days, he was going into the hospital for what could be a life-threatening operation. Having experienced a number of situations in which family members died during hospital stays, Mr. Graves was concerned about his estate situation. He asked Petitioner to prepare something.

12. Petitioner replied that it would take more time than was available to do what a lawyer would like to do or would consider an adequate job. Mr. Graves urged Petitioner to help him “get something ready” to take care of his sons and to dispose of his property in the event he did not survive the upcoming hospital stay.

13. Petitioner told Mr. Graves “there were books out there that permit individuals to do those kinds of things on their own.”

14. The Petitioner suggested to Mr. Graves what options might be available, and concepts of a trust, a spendthrift trust, children’s trust and a living trust were suggestions made by the Petitioner to Mr. Graves to take care of the latter’s concerns, in light of the urgency of the situation.

15. Petitioner drafted a living trust and a children’s sub-trust by modifying forms from the Nolo Trust, a book of forms which the Petitioner had previously acquired. The Petitioner modified the form sub-trust to include a spendthrift trust for two of Mr. Graves’ adult children.

16. At the time of these events, Mr. Graves was aware that Petitioner had been suspended from the practice of law.

17. Petitioner typed the trust documents, which provided that he would act as trustee of the spendthrift sub-trusts in the event of Mr. Graves’ death. The documents contained a provision relieving the trustee from providing accountings to the beneficiaries. This latter clause appears in the standard form trust amended by Petitioner.

18. Petitioner received no fee, nor did he expect any, for his work.

19. Petitioner believed that Mr. Graves sought his assistance as a friend, not as a lawyer, although Petitioner acknowledged that he “was the only friend [Mr. Graves] had who could do it.”

20. Petitioner did not consider what he did for Mr. Graves to be “practicing law.”

21. Petitioner did not recommend that Mr. Graves seek advice of a licensed attorney, and he did not consult Mr. Henderson or Ms. Vecchione to determine the propriety of drafting the documents.

22. Since the panel rendered its initial report on the Petition for Reinstatement, petitioner has paid his Massachusetts taxes as part of an amnesty program offered by the Department of Revenue.

CONCLUSIONS OF LAW

1. On a Petition for Reinstatement, the petitioner has the burden of proving that he: has the moral qualifications, competency and learning in law required for admission to practice in this Commonwealth, and that his…resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice or to the public interest. S.J.C. Rule 4:01, § 18(5).

2. The Petitioner was forbidden by Supreme Judicial Court Rule 4:01, § 17, to serve as trustee of the children’s sub-trust, and he should not have permitted himself to be named in the documents as successor trustee.

3. An attorney under suspension may not “engage as a lawyer” or “engage in paralegal work,” SJC Rule 4:01 § 17(3), 17(7), or “practice law” in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” Mass. R. Prof. C. 5.5(a).

4. The Supreme Judicial Court has not specifically addressed the question of whether drafting wills or trust documents constitutes “the practice of law.”

5. In order to rule on the pending Petition, the panel need not resolve the issue of whether the conduct of modifying a form trust, which admittedly requires some legal skill and knowledge, under these circumstances, constitutes the unauthorized practice of law.

6. Whether or not the conduct engaged in by Petitioner constitutes the unauthorized practice of law, the panel finds that Petitioner should have realized that someone might interpret it as such, and, even in light of the exigencies of the moment, he should have consulted his attorney, Bar Counsel, or referred Mr. Graves to another attorney prior to engaging in the conduct.

7. Petitioner did not give serious or adequate consideration to whether drafting the trust documents constituted the unauthorized practice of law, or whether permitting himself to be named as successor trustee when he was legally barred from serving in that capacity adversely reflected on his fitness to be a lawyer.

8. Modifying a form trust document, even for a friend in need, and permitting himself to be named successor trustee in violation of S.J.C. Rule 4:01, § 17, and the order of suspension, constitutes a lapse in judgment of sufficient gravity to call into question whether the petitioner has proven he has the moral qualifications to resume the practice of law and that resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice or to the public interest.

9. The facts that Petitioner was not paid for his services, and that Mr. Graves sought his assistance not as an attorney but as a friend are not relevant to the ultimate issue of whether petitioner has sustained his burden of proving that he has the moral qualifications to resume the practice and that resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice or to the public interest. See Florida Bar v. Greene, 589 So. 2d 281 (1991).

10. We find, therefore, that he has not sustained his burden of proving that he has the moral qualifications to resume the practice and that resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice or to the public interest.

CONCLUSION

We recommend that the petitioner’s Petition for Reinstatement be DENIED.

Respectfully submitted,

Constance L. Rudnick, Hearing Panel Chair
Maryanne Frangules, Hearing Panel Member
Elizabeth N. Mulvey, Hearing Panel Member

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.



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