IN RE: DANIEL J. SUMPTION
Order of Term Suspension Ordered by Single Justice on March 23, 1999
(S.J.C. Judgment of Reinstatement entered by Justice Ireland on March 24, 2009.)
In August 1995, the respondent agreed to represent a client who had sustained personal injuries in a car accident. In November 1995, the clientís HMO notified the respondent that it claimed a subrogation lien for services rendered after the accident to be satisfied from the proceeds of any recovery or settlement.
In December 1995 and January 1996, the respondent collected a total of $463 in personal injury protection (PIP) payments from the clientís insurer and deposited the funds in his client trust account. Between February 26, 1996 and March 26, 1996, the respondent intentionally used $428 of these funds for his own purposes. Although the respondentís use of the clientís funds was intentional, there was no intent to deprive nor was there deprivation since the funds were not due to the HMO until the claim was resolved.
The respondent did not keep proper records of his disposition of the clientís money. On April 4, 1996, the respondent received notice from the bank that a client trust account check had been returned for insufficient funds. The respondent reimbursed the account by depositing $600 to the account. This deposit was funded from monies the respondent was required to hold in escrow in connection with a real estate transaction involving property in Marblehead.
In another matter, the respondent represented a seller of a condominium unit in Charlestown who had entered into a purchase and sale agreement in December 1995 to sell the real estate. The agreement designated the respondent as escrow agent to hold the buyerís $12,500 deposit until the closing. About a week after he received the buyerís check for $12,500, on February 5, 1996, the respondent opened an account at a bank in Marblehead entitled "escrow account," into which he deposited the funds. On March 21, 1996, the respondent intentionally used $1,000 of the escrowed money for his own purposes.
On April 2, 1996, the closing in the Charlestown transaction took place. The respondent issued a check from the escrow account for $11,808.72 to his client, the Charlestown seller. In order to fund that check completely, the respondent used funds in the escrow account belonging to another client for whom he held a $15,750 deposit on real estate being sold in Marblehead. The respondent intentionally used another $2,000 of the escrow funds for his own purposes, including the restitution of $600 to the client trust account.
On April 5, 1996, Bar Counsel notified the respondent that he had received two notices of dishonored checks in the respondentís client trust account. Bar Counsel requested an explanation. Between April 18, 1996 and May 29, 1996, the respondent made restitution by depositing personal funds to the escrow account. On May 28, 1996, at the closing on the Marblehead transaction, the respondent paid the sellers $16,000 as their share of the deposit, and gave a $90 check to the buyer for the interest his money should have earned. The respondentís use of funds was with no intent to deprive, and no deprivation resulted since the respondent reimbursed the money before the closing.
The respondentís conduct in these matters violated Canon One, DR 1-102(A)(4) and (6), and Canon Nine, DR 9-102(A), (B) and (C). In mitigation, the respondentís misuse of client and fiduciary funds took place over a short period in which he suffered from emotional difficulties compounded by alcohol abuse. Beginning in July 1998, the respondent sought counseling and treatment for these difficulties. In further mitigation, the respondent had scant experience in the private practice of law and the proper management of trust funds.
Bar Counsel and the respondent stipulated that a three-month suspension was appropriate discipline for the respondentís misconduct. On February 8, 1999, the Board of Bar Overseers voted to accept the partiesí recommendation for discipline, adding the conditions that, upon reinstatement, the respondent enter into a two-year contract for sobriety monitoring with Lawyers Concerned for Lawyers and an agreement providing for periodic audits by an accountant of the respondentís trust accounts. On March 23, 1999, the Single Justice entered an order suspending the respondent for three months, and including the conditions upon reinstatement.
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