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No. BD99-033

 

IN RE: LOUIS A. GUIDRY

Last known office address:
6 Beacon St.
Boston, MA 02108

ORDER OF TERM SUSPENSION

 

This matter came before the Court, Greaney, J., on an Information and Record of Proceedings, and the Vote and Recommendation of the Board of Bar Overseers filed by the Board on May 21, 1999. Upon consideration thereof, it is ORDERED that:

1. Louis A. Guidry is hereby suspended from the practice of law in the Commonwealth of Massachusetts for a period of 30 months. In accordance with SJC Rule 4:01, Sect. 17(3), the suspension shall be effective 30 days after the date of the entry of this Order. The lawyer, after the entry of this Order, shall not accept any new retainer or engage as lawyer for another in any new case or legal matter of any nature. During the period between the entry date of this Order and its effective date, however, the lawyer may wind up and complete, on behalf of any client, all matters which were pending on the entry date.

It is FURTHER ORDERED that:

2. Within fourteen (14) days of the date of entry of this Order, the lawyer shall:

a) file a notice of withdrawal as of the effective date of the suspension with every court, agency, or tribunal before which a matter is pending, together with a copy of the notices sent pursuant to paragraphs 2(c) and 2(d) of this Order, the client's or clients' place of residence, and the case caption and docket number of the client's or clients' proceedings;

b) resign as of the effective date of the suspension all appointments as guardian, executor, administrator, trustee, attorney-in-fact, or other fiduciary, attaching to the resignation a copy of the notices sent to the wards, heirs, or beneficiaries pursuant to paragraphs 2(c) and 2(d) of this Order, the place of residence of the wards, heirs, or beneficiaries, and the case caption and docket number of the proceedings, if any;

c) provide notice to all clients and to all wards, heirs, and beneficiaries that the lawyer has been suspended; that he is disqualified from acting as a lawyer after the effective date of the suspension; and that, if not represented by co-counsel, the client, ward, heir, or beneficiary should act promptly to substitute another lawyer or fiduciary or to seek legal advice elsewhere, calling attention to any urgency arising from the circumstances of the case;

d) provide notice to counsel for all parties (or, in the absence of counsel, the parties) in pending matters that the lawyer has been suspended and, as a consequence, is disqualified from acting as a lawyer after the effective date of the suspension;

e) make available to all clients being represented in pending matters any papers or other property to which they are entitled, calling attention to any urgency for obtaining the papers or other property;

f) refund any part of any fees paid in advance that have not been earned; and

g) close every IOLTA, client, trust or other fiduciary account and properly disburse or otherwise transfer all client and fiduciary funds in his possession, custody or control.

All notices required by this paragraph shall be served by certified mail, return receipt requested, in a form approved by the Board.

3. Within twenty-one (21) days after the date of entry of this Order, the lawyer shall file with the Office of the Bar Counsel an affidavit certifying that the lawyer has fully complied with the provisions of this Order and with bar disciplinary rules. Appended to the affidavit of compliance shall be:

a) a copy of each form of notice, the names and addresses of the clients, wards, heirs, beneficiaries, attorneys, courts and agencies to which notices were sent, and all return receipts or returned mail received up to the date of the affidavit. Supplemental affidavits shall be filed covering subsequent return receipts and returned mail. Such names and addresses of clients shall remain confidential unless otherwise requested in writing by the lawyer or ordered by the court;

b) a schedule showing the location, title and account number of every bank account designated as an IOLTA, client, trust or other fiduciary account and of every account in which the lawyer holds or held as of the entry date of this Order any client, trust or fiduciary funds;

c) a schedule describing the lawyer's disposition of all client and fiduciary funds in the lawyer's possession, custody or control as of the entry date of this Order or thereafter;

d) such proof of the proper distribution of such funds and the closing of such accounts as has been requested by the bar counsel, including copies of checks and other instruments;

e) a list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and

f) the residence or other street address where communications to the lawyer may thereafter be directed. The lawyer shall retain copies of all notices sent and shall maintain complete records of the steps taken to comply with the notice requirements of SJC Rule 4:01, Sect. 17.

4. Within twenty-one (21) days after the entry date of this Order, the lawyer shall file with the Clerk of the Supreme Judicial Court for Suffolk County:

a) a copy of the affidavit of compliance required by paragraph 3 of this Order;

b) a list of all other state, federal and administrative jurisdictions to which the lawyer is admitted to practice; and

c) the residence or other street address where communications to the lawyer may thereafter be directed.

By the Court, (Greaney, J.)

Entered: May 28, 1999

SUMMARY1

In or about 1996, the respondent was retained by five clients (four individuals and a church) to represent them in a will contest. The case was referred to the respondent by another attorney. With the clients' consent, the respondent and the referring attorney divided equally the retainer fee of $2000.

The decedent died July 14, 1995. She had no living children. The will made bequests to great-grandchildren, but omitted her grandchildren. The other beneficiaries under the will were the respondent's clients, all of whom, except for the church, were the decedent's neighbors.

The decedent's grandchildren filed objections to the allowance of the will. In 1997, a compromise was reached and approved by the Probate Court. Under the terms of the compromise, the respondent's clients would be paid a total of $15,000, with $1000 of this sum to be paid to the respondent and the referring attorney as the balance owed for legal fees.

The respondent received the $15,000 settlement check in or about July 31, 1997. He deposited it to his IOLTA account, paid the referral fee, and prepared checks to all of his clients in the amounts that the clients had agreed upon. He at that time sent checks totaling $10,000 to three of his clients for the full amount that they were owed, but did not send the other two clients the $4000 total that they were due.

By October 31, 1997, the balance in the respondent's IOLTA account was $210 and by March 31, 1998, the balance in the IOLTA account was $50, without any payments having been made to or for the benefit of the remaining two clients. The respondent instead, and without the clients' knowledge or consent, knowingly used the $4000 due these two clients for his own benefit unrelated to the clients.

In early 1998, one of the clients who had not been paid spoke with a client who had been paid and became aware that the settlement had been received. The clients then spoke with the referring attorney. In or about April 15, 1998, the respondent borrowed money from a friend and remitted cashier's checks to the remaining clients for the amount each was due including interest. The restitution was made before the clients filed their complaint with Bar Counsel.

The respondent's conduct in converting trust funds with intent to deprive the clients of the use of the funds at least temporarily, and with actual deprivation resulting, was in violation of Canon One, DR 1-102(A)(4),(6) and Canon Nine, DR 9-102(A),(B)(3),(4).

In aggravation, the respondent had a prior informal admonition for neglect of a motor vehicle personal injury claim. However, the client in that matter ultimately was not harmed.

In mitigation, from 1995 through the fall of 1997, the respondent was under extreme financial and emotional stress arising from grave and acute family problems, the particulars of which have been impounded pursuant to SJC Rule 4:01, Sect. 20(4). These problems and the consequent financial crisis they caused occurred during the time of the misappropriation and escalated in the fall of 1997, interfering with the respondent's ability to attend to prompt restitution.

When restitution has been made, the presumptive sanction for intentional misuse of client funds, with intent to deprive or actual deprivation, is an indefinite suspension, absent special mitigating factors. Matter of Schoepfer, 426 Mass. 183 (1997). Because of the extraordinary nature of the respondent's mitigation, Bar Counsel agreed to recommend that the respondent be suspended for thirty months. On April 12, 1999, the Board voted to accept the parties' stipulation of facts, disciplinary rule violations, and sanction and to recommend the agreed-upon disposition to the Supreme Judicial Court. The Court so ordered on May 28, 1999.

1 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.



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