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Commonwealth of Massachusetts

NO. NO. BD 99-018

IN RE: Kyle T. Buckminster

S.J.C. Order of Disbarment entered by Justice Abrams on July 28, 1999. 1

SUMMARY2

This matter came before the Court on the respondentís affidavit of resignation pursuant to Supreme Judicial Court Rule 4:01, ß 15.

The respondent was admitted to practice in the Commonwealth of Massachusetts on February 1, 1992. On December 9, 1996, the respondent was administratively suspended for failure to register with the Board of Bar Overseers as required by Supreme Judicial Court Rule 4:02, and for failure to pay the annual registration fee as required by Supreme Judicial Court Rule 4:03(a).

In or about August of 1998, a client retained the respondent to represent her in her divorce from her husband. The respondent, who is the clientís cousin, did not inform the client that he was administratively suspended from the practice of law. The respondent agreed to represent the client for a fee of $75.00 per hour, and the client paid the respondent a retainer of $900.00.

On September 16, 1998, the client and her husband signed a purchase and sale agreement agreeing to sell their home.

At the closing, the client received one check in the amount of $6,179.13, and a second check in the amount of $10,000.00, representing her share of the net proceeds.

The client left the closing with the respondent. The respondent informed her that pursuant to an agreement he had with her husbandís counsel, the proceeds from the sale of the house had to be held in escrow so that they would be available to pay bills and debts from the marriage. The husbandís attorney denied that there was an agreement to hold the funds in escrow, and no escrow agreement was documented in writing. The respondent drove the client to the nearest bank, where the client cashed the $6,179.13 check and used the funds to purchase a bank check. At the respondentís request, the client gave the respondent the $10,000.00 check, which he undertook to hold in escrow. She kept the $6,179.13 bank check, but did not spend it because the respondent had directed her to hold it in escrow.

On October 29, 1998, the respondent deposited the $10,000.00 check into a personal bank account at BankBoston which was not in the name of the respondent or the client. Immediately prior to this deposit, the bank account had a balance of $158.31. By November 6, 1998, the balance in the account had been reduced to $0.00. During this period, payments were made from this account for the respondentís personal or other expenses. The client did not authorize the respondent to deposit her $10,000.00 check into this BankBoston account, or to use it for personal or other expenses unrelated to the client or her case.

On or about December 1, 1998, the respondent requested that the client pay him an additional $725.00 to cover the cost of making copies of her bank and credit card statements to give to her husbandís attorney and to file papers with the Court on her behalf in the divorce matter. The clientís son gave the respondent a check for $725.00, which the respondent immediately cashed. Although the respondent wrote to the husbandís lawyer on December 16, 1998 and December 22, 1998 that he was sending him copies of the clientís credit card information and other bills, he never in fact provided this information to the husbandís attorney. The respondent also never filed a divorce complaint in this matter.

On or about December 8, 1998, the respondent telephoned the client and falsely informed her that he had to pick up the $6,179.13 check because her husbandís attorney had demanded proof that the proceeds from the sale were still being held in escrow. The client gave the respondent the $6,179.13 check, which the respondent undertook to hold in escrow.

Subsequently the client learned from her husband and his attorney that her husbandís share of the real estate proceeds had not been held in escrow. She contacted the respondent by telephone on or about February 4, 1999, and demanded that her share of the real estate proceeds be paid to her. On February 5, 1999, the client sent a letter by certified mail to the respondent to inform him that she was terminating his representation, and demanding that he return her funds in full, including the real estate proceeds and the $725.00 paid to him by her son. The client also requested a detailed invoice of the respondentís expenses, and evidence of an existing IOLTA account.

On February 16, 1999, the client filed a grievance with Bar Counsel. The respondent did not respond to Bar Counselís inquiries or to his clientís requests for her file and for her escrow funds.

On April 7, 1999, the respondent was temporarily suspended by order of a Single Justice of the Supreme Judicial Court pending further disciplinary proceedings before the Board of Bar Overseers.

The respondent returned the clientís file to her in April of 1999, after he was temporarily suspended from the practice of law. On or about May 13, 1999, the respondent paid the client $2,000.00, and on or about May 24, 1999, the respondent paid the client $14,179.13.

The respondentís conduct in intentionally converting not less than $16,000.00 of his clientís funds with the wrongful intent to deprive his client of the use of those funds at least temporarily, resulting in actual deprivation to his client, violated Mass. R. Prof. C. 8.4(c), 8.4(h), and 1.15. The respondentís misrepresentations to his client and to others violated Mass. R. Prof. C. 8.4.(c) and 4.1. His failure to return his clientís file upon demand violated Mass. R. Prof. C. 1.16(e).

In addition, the respondent continued to practice law in Massachusetts while administratively suspended from practice. The respondent failed to respond to Bar Counselís inquiries regarding these matters, failed to appear for a meeting with Bar Counsel after having been served with a subpoena issued by the Board of Bar Overseers, and misrepresented to Bar Counsel his reasons for not appearing at the subpoena meeting. Despite repeated notices from Bar Counsel, the respondent continued to practice law and to hold himself out as an attorney.

On February 19, 1999, Bar Counsel received a grievance from an assistant register for the Hampshire County Probate and Family Court reporting that the respondent had filed an appearance in a probate court matter, and had failed to comply with a court order requiring him to pay $300.00 to an opposing attorney. The respondent also failed to appear for a contempt hearing on the matter, and misrepresented to the clerkís office that he was out of the country and unable to attend, resulting in the issuance of a capias.

On or about April 16, 1999, the respondent paid the opposing attorney $300.00 as ordered by the court. On or about May 13, 1999, the respondent paid an additional $300.00 to the attorney for attorneyís fees. The capias was withdrawn, and the contempt complaint was voluntarily dismissed.

The respondentís refusal to comply with the December 9, 1996 order administratively suspending him from practice, despite repeated notices from Bar Counsel, violated Mass. R. Prof. C. 8.4(d), and Canon One, DR 1-102(A)(5). By practicing law while under administrative suspension, the respondent violated Mass. R. Prof. C. 5.5(a) and Canon Three, DR 3-101(B). The respondentís failure to appear for a subpoena meeting with Bar Counsel, to respond to repeated letters from Bar Counsel, and his failure to cooperate with Bar Counselís investigation violated Mass. R. Prof. C. 8.4(g) and (h), Canon One, DR 1-102(A)(5) and (6), and Supreme Judicial Court Rule 4:01, ß 3(b).

The respondentís misrepresentations to clients, to Bar Counsel, and to a court constitute conduct in violation of Canon One, DR 1-102(A)(4), and Rule 8.4(c) of the Massachusetts Rules of Professional Conduct.

On May 24, 1999, the respondent submitted his affidavit of resignation from the practice of law. In the affidavit, the respondent acknowledged that sufficient evidence existed to warrant findings that the facts alleged in Bar Counselís Statement of Disciplinary Charges could be proved by a preponderance of the evidence. On June 14, 1999, the Board of Bar Overseers voted to recommend that the affidavit be accepted, that an order of disbarment be entered forthwith, and that the affidavit not be impounded. The Supreme Judicial Court so ordered on July 28, 1999.

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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