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No. BD 99-074

IN THE MATTER OF JOHN S. GETCH

ORDER OF DISBARMENT1


SUMMARY

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 the Bar of the Commonwealth of Massachusetts on June 19, 1980.

In January of 1992, an eighty-five year old woman retained the respondent to represent her with respect to the administration of two trusts. At the request of the client, the respondent prepared an amendment to the first trust removing the clientís prior attorney as trustee, and appointing the respondent and the clientís son-in-law, a Connecticut resident, to serve with the client as co-trustees of the first trust. At the request of the client, the respondent also prepared an instrument appointing the respondent to be a co-trustee of the second trust with the client, and replacing the clientís prior attorney, who resigned as trustee on February 13, 1992. Prior to accepting his appointments as trustee of both trusts, the respondent did not provide the client with a written disclosure statement as required by M.G.L. c. 203, ß 4B.

On or about May 15, 1992, the respondent wrote a letter to the client setting out his duties as a trustee, and confirming their agreement that he would charge a $3,000 annual fee for trust services, including the administration of both trusts as well as the investment responsibility. On or about May 19, 1992, the client wrote back to the respondent confirming this fee arrangement.

The respondent served as trustee of both trusts from 1992 until April 16, 1996, when he resigned his trusteeships upon the clientís request.

While serving as trustee, the respondent met on a monthly basis with the client and an investment advisor to review the trustsí investment performance. The investment advisor was paid a fee from the two trusts. The respondent did not prepare fiduciary income tax returns for the trusts. This service was performed by the clientís personal accountant, who also prepared her personal income tax returns, and was paid for these services. During his tenure as trustee, the respondent did not prepare annual accounts for the two trusts, as required by provisions of the trusts. Between 1992 and 1996, the client was not involved in any litigation or other legal problems, and she did not make any amendments to her estate plan after adding the respondent as trustee in 1992.

The respondent did not provide the client with itemized or other bills for his services as trustee or legal advisor to the trusts. The respondent also never advised the client in writing that he would be charging more than the $3,000 annual fee for services regarding both trusts.

As trustee of the two trusts, the respondent had sole possession and control of the checkbooks used to write checks against the trust accounts. During the period January 1, 1994 through December 31, 1995, the respondent wrote checks payable to himself totaling $93,775.00 from the two trust accounts, which he deposited into his personal bank account. On December 31, 1993, the balance in the respondentís personal account prior to the deposits from the trust accounts was $499.78. On February 24, 1996, the account balance in the respondentís personal account was $86.82. Between December 31, 1993 and February 28, 1996, not less than $73,991.61 was expended from the respondentís personal account for the benefit of the respondent and persons or entities other than the client or the two trusts.

The respondent produced a log in which he acknowledged paying himself $34,495.32 in trusteeís and legal fees for his representation of the client and the two trusts. These funds made up a portion of the $93,775.00 which the respondent deposited into his personal account. These fee payments exceeded by approximately $22,000.00 the agreed-upon $3,000.00 yearly fee for each of the four years he served as trustee of the two trusts. As of the date of his resignation, the respondent had made payments totaling $2,400.00 in restitution to the trust.

The respondentís conduct in commingling the trust funds with his own funds and in intentionally converting the trust funds with the wrongful intent to deprive his client and the trusts of the use of those assets at least temporarily, resulting in actual and continuing deprivation to the beneficiaries of the trusts, violated Disciplinary Rules 1-102(A)(4) and (6), and 9-102(A) and (B).

By paying himself a fee from the trustsí assets which exceeded by not less than $22,000.00 the reasonable fee which his client had agreed to pay for his services, the respondent violated Disciplinary Rule 2-106(A).

On September 23, 1999, the respondent submitted his affidavit of resignation from the practice of law to the Board of Bar Overseers. In the affidavit, the respondent acknowledged that sufficient evidence existed to warrant findings that the facts summarized above would be proved by a preponderance of evidence. Bar Counsel recommended that his affidavit of resignation be accepted, and that he be disbarred. On October 18, 1999, the Board of Bar Overseers voted to recommend that the affidavit of resignation be accepted, and that an order of disbarment be entered forthwith.

On December 31, 1999, the Supreme Judicial Court ordered that the respondent be disbarred.

1 S.J.C. Order of Disbarment entered by Justice Cowin on December 31, 1999.



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