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Commonwealth of Massachusetts

BD-1999-039

IN RE: Robert B. Carlsen 1

SUMMARY 2

This matter came before the Court on an affidavit of resignation submitted pursuant to S.J.C. Rule 4:01, ß 15, and a recommendation by the Board of Bar Overseers for the respondentís disbarment upon his resignation.

In early 1993, the respondent accepted a probate appointment as conservator of the estate of a mentally disabled adult. The respondent was entrusted with about $126,500 representing the proceeds of a personal injury claim settled on the wardís behalf. Between 1993 and 1995, the respondent disbursed some of the proceeds for the wardís benefit but converted over $100,000 of the wardís funds to his own use. From 1995 to about December 1998, using personal funds and funds due other clients or parties, the respondent restored about $26,000 to the wardís estate and applied the restored funds to the wardís living expenses. In December 1998, the respondent ceased paying the wardís expenses, abandoned his duties as conservator, closed his law office, and moved to Florida, all without notice to the ward or the court.

In May 1999, the court appointed a guardian ad litem for the ward and ordered the respondent to render accounts for the wardís estate. The respondent filed probate accounts in which he intentionally misrepresented, under oath, that he had retained and invested the settlement proceeds not applied for the wardís expenses and that he was holding estate funds of about $74,000. In fact, the respondent was then holding less than $5.00 attributable to the wardís estate. In June 1999, the respondent was ordered to produce all his financial records for the estate. He failed to comply and was adjudicated in contempt of the order in September 1999. Despite demands by the guardian ad litem and Bar Counsel, the respondent has never accounted adequately for all the wardís funds, and he still owes restitution of over $74,000 plus interest.

By commingling and converting the wardís proceeds, failing hold all the estate funds at interest, and failing to safeguard or account adequately for the funds, the respondent violated Canon One, DR 1-102(A)(4) and (6), Canon Nine, DR 9-102(A), (B)(3) (4) and (C), and, after January 1, 1998, Mass. R. Prof. C. 1.15 (a), (b), (d) and (e) and 8.4(c) and (h). By neglecting the estate and abandoning his fiduciary duties, the respondent violated Canon Two, DR 2-110(A)(1) and (B)(2), Canon Six, DR 6 101(A)(2), and Mass. R. Prof. C. 1.16(c) and 8.4(h). The respondentís concealment of his misappropriations and false representations under oath violated DR 1 102(A)(4) (6), DR 6-102(A) and, Mass. R. Prof. C.8.4(c), (d) and (h) .

In a second case, in early 1996, the respondent represented the buyers of real estate and was entrusted with about $16,100 held back at the closing to secure repairs to the property. The respondent signed an escrow agreement obligating him to hold the funds in an interest-bearing account, make disbursements for the repairs, and release any surplus funds to the seller within 20 days after completion. Instead, the respondent placed the escrow funds in his IOLTA account and, over the next three months, applied about $8,200 from those funds to pay his own obligations including repayments to the estate described above. The respondent misused the escrow funds intentionally or with reckless disregard for the true ownership of the funds.

In May 1996, the respondent disbursed virtually all the remaining escrow funds of about $7,800 to pay for repairs to the property. The respondent subsequently failed to reply to the sellerís demands for the remaining funds until October 1996, when he replaced the funds and remitted about $7300 to the seller. Without disclosing his misappropriations, the respondent made an agreement with the seller to retain the balance due of about $1,000 until the parties resolved an ongoing dispute over real estate taxes. After the dispute was settled, the respondent paid the remaining funds to the seller in January 1997. Despite demands by Bar Counsel, he has never accounted adequately for all the escrow funds.

The respondentís conduct in breaching his escrow obligations, converting the escrow funds, concealing his misappropriations, failing to hold the funds at interest, failing to pay over the remaining funds when due, and failing to safeguard or account adequately for the funds violated DR 1 102(A)(4) and (6) and DR 9-102(A), (B)(3)-(4) and (C).

From and after late 1998, the respondent repeatedly failed to reply to Bar Counselís requests for information about the estate and escrow funds. On June 15, 1999, the respondent was administratively suspended pursuant to S.J.C. Rule 4:01, ß 3(2), for failure to cooperate in Bar Counselís investigation. The respondent did not seek reinstatement or reply to Bar Counselís communications within 30 days after his suspension. As a result, on July 15, 1999, the respondent became subject to provisions of the suspension order requiring him to distribute and account for trust funds in his custody, give notice of his suspension, withdraw any appearances, resign any fiduciary appointments, make available files in pending matters, return any unearned fees, and file an affidavit of compliance. The respondent failed thereafter to comply with those provisions. The respondentís failure to cooperate with Bar Counsel and failure to comply with the order for his administrative suspension violated S.J.C. Rule 4:01, ßß 3 and 17, and Mass. R. Prof. C. 8.4(d), (g) and (h).

On December 28, 1999, the respondent submitted his affidavit of resignation with an acknowledgement that the charges could be proved by a preponderance of evidence. Effective January 1, 1998, S.J.C. Rule 4:01, ß 18, was amended to extend the waiting period for seeking reinstatement after resignation or disbarment from five years to eight years. In February 2000, the Board voted to recommend that the respondentís affidavit of resignation be accepted, that an order of disbarment be entered, and, in view of the respondentís submission of his affidavit before the effective date of the amendments, that he be permitted to apply for reinstatement at the expiration of five years. On April 6, 2000, the Court, Spina, J., entered a judgment accepting the affidavit of resignation and the Boardís recommendations and disbarring the respondent effective immediately upon entry of the judgment.


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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