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Commonwealth of Massachusetts

NO. BD-1999-002

IN RE: ROBERT SANDS POTTERS

S.J.C. Order of Indefinite Suspension entered by Justice Ireland on May 10, 2000.1

SUMMARY2

The respondent represented a plaintiff in a real estate litigation matter pending in the Middlesex Superior Court. On November 2, 1994, the respondentís client settled the lawsuit for $130,000. The terms of the settlement required the defendants to pay $10,000 within a week of the settlement, and the balance not later than January 11, 1995. On November 9, 1994, the respondent deposited a $10,000 check received from the defendants in lawsuit into the respondentís IOLTA account. On November 15, 1994, the respondent disbursed from his IOLTA account $4,000 to his client and applied the $6,000 balance toward his legal fees.

On December 2, 1994, a second lawsuit was filed against the respondentís client, also in the Middlesex Superior Court. In the second lawsuit, a third party creditor of the client claimed that the respondentís client owed her a portion of the proceeds from the lawsuit, and that neither the respondent nor his client informed her that a settlement had been reached or that the first settlement funds has been received. On December 27, 1994, the creditor obtained an injunction requiring the respondent to refrain from disbursing or transferring the first lawsuit proceeds pending final adjudication or further Order of the Court.

On January 11, 1995, the respondent received and deposited $120,000 into his IOLTA account, representing the balance of the $130,000 settlement proceeds from the first lawsuit. On January 11, 1995, the court in the second lawsuit permitted the respondent to take his own fees out of the settlement proceeds. The respondent did so and the balance, in the amount of $92,085.19, was to be held by the respondent in escrow.

Over the next sixteen months and without authorization from the Court or either party to the escrow, the respondent withdrew and expended the funds in his IOLTA account for personal or business purposes unrelated to matters pending in court. As of April 30, 1996, the respondentís IOLTA account had an ending balance of $2,588.77 without any payments to or for the benefit of the parties to the dispute.

On September 25, 1996, the second lawsuit was dismissed. The decision of the dismissal was subsequently reversed and the case remanded by the Supreme Judicial Court on December 8, 1977. In December 1997, after the creditor prevailed in her appeal, she and the respondentís client agreed to settle their case and to a split of the funds thought to be held by the respondent.

As of August 17, 1998, after the respondent deposited personal funds, the respondentís IOLTA account balance was $20,936.38. On September 9, 1998, the respondent was ordered by the Court to disburse the funds believed to be held in escrow, directing the respondent to pay the creditor $50,000 and to pay his client $42,085.19, plus such interest as was due on the total sum held pursuant to the preliminary injunction.

On September 16, 1998, the respondentís client, not having received his distribution, filed a grievance with Bar Counsel. On October 13, 1998, the respondent deposited $25,000 more in personal funds into his IOLTA account, bringing the account to a balance of $45,936.38. On October 18, 1998, the respondent disbursed a check in the amount of $42,085.19 to his client. The check was presented for payment on August 22, 1998, and cleared, leaving a balance in the respondentís IOLTA account of $3,851.19, without any payment being made for the benefit of the creditor.

In July 1999, the respondent used personal funds to reimburse the creditor the principal that she was entitled to receive plus interest, in full satisfaction of her claims.

The respondentís conduct prior to January 1, 1998, in misappropriating and failing to account for funds held in his possession, with intent to deprive clients and others of these funds and with actual deprivation resulting, was in violation of Canon One, DR 1-102(A)(4), (5) and (6) and Canon Nine, DR 9-102(A) and (B). The respondentís misappropriation which occurred after January 1, 1998, was in violation of Mass. R. Prof. C. 8.4(b), (c) and (d) and 1.15(a) and (b).

In a second unrelated matter, the respondent failed to cooperate with an investigation by Bar Counsel and failed to return a clientís file and provide an accounting of funds until after a complaint was filed with Bar Counsel. The respondentís conduct in these regards was in violation of Mass. R. Prof. C. 1.16(d) and (e).

The respondent was temporarily suspended from the practice of law pending further disciplinary proceedings on January 22, 1999. Thereafter, on February 7, 2000 the parties stipulated that the appropriate sanction for the respondentís conduct was an indefinite suspension from the practice of law. On April 10, 2000, the Board of Bar Overseers voted to adopt the partiesí stipulation and proposed sanction. On May 1, 2000, the Board filed an information with the Supreme Judicial Court for Suffolk County. On May 10, 2000, the country court entered an order suspending the respondent from the practice of law for an indefinite period retroactive to January 20, 2000, the date of the respondentís compliance with the terms of his temporary suspension.

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 before the Court.



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