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NO. BD-99-027



This matter came before the Court on the respondentís affidavit of resignation under S.J.C. Rule 4:01, ß 15. In his affidavit, the respondent acknowledged that the material facts alleged by Bar Counsel regarding his conduct in two cases could be proved by a preponderance of the evidence, as follows.

The respondent was admitted to the bar in 1964 and practiced law with his father. After his fatherís death in March 1980, the respondent assumed sole responsibility for representing a client in an ongoing estate matter. The client, a nephew of the decedent, was a nominated executor of the estate. The decedent had died in 1976 leaving two children as heirs at law. The estate consisted of some $2,000 in bank deposits and a house valued at about $22,000. Under the decedentís will, the entire estate poured over into a trust of which the decedentís son was a nominated trustee. The trust provided for payments of $5,000 to the client and $6,000 to other relatives, with the residue to the decedentís children. The decedentís son was contesting the will and trust. The respondentís father and the attorney for the son had been appointed co-special administrators. The special administrators had attempted to sell the house and had accepted a $1,000 down payment, which was on deposit in an interest-bearing estate account established by the respondentís father in their names. The sale had been delayed by questions about the validity of the trust.

When the respondent took over the case in 1980, he began maintaining the special administratorsí account in his fatherís place. The parties subsequently agreed to have the will and trust allowed in order to facilitate sale of the real estate. In July 1980, decrees entered appointing the respondentís client as executor and the decedentís son as trustee. In November 1981, the respondent received about $10,800 as the net proceeds of sale of the house and deposited the funds to the special administratorsí account. The son continued to dispute the distributive provisions of the trust despite his appointment as trustee. The respondent retained the sale proceeds in the special administratorsí account pending resolution of the dispute.

From and after 1981, the respondent received inquiries from his client and other beneficiaries about the status of the estate. In about 1983, at the clientís request, the respondent paid $2,000 to the client and $800 to another beneficiary from his own funds as advances on their distributive shares. In 1984, the respondent filed an executorís inventory and attended to preparation of fiduciary tax returns.

Thereafter, the respondent failed to resolve the dispute between the beneficiaries, effect any distribution of the estate funds, or take other action of substance to wind up the estate. Between about 1985 and early 1995, the respondent ceased all work on the estate without withdrawing from representation or advising his client to get other counsel. In addition, the respondent failed to reply adequately to the beneficiariesí ongoing inquiries. In February 1995, after a bar discipline grievance was initiated against him, the respondent petitioned the probate court for instructions on distribution of the estate funds, but he failed to have the petition served or determined.

During 1996 and 1997, the respondent received repeated inquiries and demands from the beneficiaries and from new counsel for the son. In the fall of 1997, the parties reached agreement for disposition of the funds still on deposit in the special administratorsí account, which then amounted to over $26,000 with accumulated interest. The respondent filed a new probate complaint for instructions and orders, secured the beneficiariesí assents, and obtained a judgment for distribution. The respondent finally distributed the estate funds in May 1988.

In the second case, in the fall of 1988, the respondent was consulted a couple who were the tenants and caretakers of their 97-year-old landlady. The landlady was incompetent and needed an immediate nursing home placement. The respondent had one of the tenants appointed as temporary guardian, but the landlady died a few weeks later. Her sole heir at law was a nephew. The decedentís estate included her house, valued at about $230,000, and personal property with a total value of about $285,000. The decedent had made a will naming the respondent as executor, devising the house to the tenants, and making special bequests totaling $25,000 to the tenants and to various relatives of her late husbandís. She left 10% of the residual estate to each of her two sisters if the sister survived her and then to the other sister, with the remaining 80% to a nephew of her husbandís. Both of the decedentís sisters had predeceased her. She left nothing to her own nephew under the will.

In December 1988, the respondent started probate proceedings, had a citation issued, and served the citation on the decedentís nephew, but he failed to make service by mail on any of the beneficiaries named in the will as required by the citation. In January 1989, the nephew filed an objection to the will. Relying on research inadequately performed by an associate, the respondent mistakenly advised the nephewís attorney that the shares of the deceased sisters, amounting to 20% of the residuary estate, passed to the nephew by intestacy. In fact, the sistersí shares should have passed either to the remaining residuary beneficiary under G.L. ch. 191, ß 1A(5), or to the sistersí estates. In February 1989, the nephew withdrew his objection, the will was allowed, and the respondent was appointed as executor. Thereafter the respondent acted as both personal representative of the estate and as attorney for himself as executor. Many of the required services were performed by paralegals or associates working under the respondentís supervision and direction, were routine or largely ministerial, and required no unusual skill or expertise.

During 1989, the respondent marshaled the decedentís assets and paid various debts and expenses of the estate, including his own claimed fees. The respondent failed to give written notice to the named beneficiaries of their legacies, as required by G.L. ch. 192, ß 12, and failed at that time to submit an inventory or account for the temporary guardianship. He filed an estate
tax return late, with resulting interest and penalties of about $4,500. The respondent also mistakenly overvalued a bond owned by the decedent and thereby overpaid the estate tax due by about $5,000.

Through early 1990, the respondent failed to make any distributions to the beneficiaries and failed to respond adequately to their inquiries. By that time, however, the respondent had paid himself a total of some $30,600 for his claimed fees and expenses. The respondent failed to itemize his fees or to differentiate between charges for fiduciary and legal services. Those fees were clearly excessive under the circumstances.

In June 1990, after further inquiries from one of the beneficiaries and her counsel, the respondent paid the specific bequests and made partial residuary distributions amounting to $75,000. The respondent failed to pay interest on the specific bequests pursuant to G.L. ch. 172, ß 20, but he nevertheless obtained releases from the legatees purporting to discharge him unconditionally and to assent, in advance, to allowance of an executorís account. After further requests and demands, the respondent effected additional partial distributions in December 1990 and October 1991. Thereafter, the respondent failed to make final distributions, collect outstanding dividends due the estate, or prepare or submit probate accounts.

In the spring of 1993, after one of the beneficiaries complained to Bar Counsel, the respondent completed the distributions, discovered his prior error in overvaluing the estate, and filed an inventory and accounts in the probate court. Two of the beneficiaries objected to the executorís account. In September 1993, the respondent remitted some $5,900 in fees and an additional $5,000 to cover the estate tax overpayment. He never amended his accounts to reflect the payments or sought allowance of the accounts in the probate court.

The respondentís neglect, inadequate preparation and failure of zealous representation in connection with both estates, causing damage or prejudice, violated Canon Six, DR 6-101(A)(2) and (3), and Canon Seven, DR 7-101(A)(1)-(3). In the first case, the respondentís cessation of employment without withdrawing from representation or taking adequate steps to protect the clientís interests violated Canon Two, DR 2-110(A)(1) and (2), and, effective January 1, 1992, DR 2-110(A)(4). The respondentís conduct in charging and collecting a clearly excessive fee in the second case violated Canon Two, DR 2-106(A) and (B).

The respondent had a history of discipline including a 1984 informal admonition for neglect of an estate, a 1986 informal admonition for failing to have a written contingent fee agreement in a tort case, and a 1990 private reprimand, PR-10, 6 Mass. Attíy Disc. R.  405 (1990), for neglect of three cases and failure to make timely refund of an unearned retainer. In the cases at issue, the respondentís misconduct was of protracted duration and resulted in prejudice to the estate beneficiaries. In further aggravation, the conduct at issue occurred while the respondent was being investigated and disciplined in prior matters.

Bar Counsel commenced formal disciplinary proceedings by filing a petition for discipline against the respondent in July 1998. The respondent filed an answer in August 1998. In February 1999, before any hearing on the petition, the respondent submitted his affidavit of resignation to the Board of Bar Overseers. The respondent represented in the affidavit that he had suffered from significant medical conditions which exacerbated his conduct and which, at times, had substantially affected his professional performance. Bar Counsel disputed the extent of those conditions and their impact on the respondentís conduct. The parties agreed to waive this dispute in consideration of the respondentís submission of his resignation affidavit.

On March 8, 1999, the Board voted to recommend acceptance of the respondentís affidavit of resignation. On May 3, 1999, the Court entered a judgment accepting the resignation as a disciplinary sanction effective June 2, 1999.


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