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Commonwealth of Massachusetts

PUBLIC REPRIMAND NO. 2000-3



IN RE: JAMES FOTOPOULOS

Order (public reprimand) entered by the Board December 13, 1999.

SUMMARY1


In or about September of 1991, a client retained the respondent to probate the estate of his sister who had died on June 11, 1991. The client paid the respondent a $500.00 retainer. The respondent agreed to file the decedent's will, and to seek allowance of the will and appointment of his client as executor by the Probate Court. He was also to assist his client in settling the decedent's estate by filing a probate inventory, collecting and distributing the assets of the estate, paying any debts of the decedent, settling any claims against the estate, preparing a Massachusetts estate tax return and obtaining a release of the estate tax lien, and preparing and seeking allowance of the client's first and final probate account. The respondent failed to take any of the above actions on behalf of his client.

The only significant asset owned by the decedent at the time of her death was a one-half interest as a tenant in common in a three-family home in Somerville, Massachusetts. After the decedent's death, her son, daughter, and son-in-law were interested in refinancing the mortgage to take advantage of lower interest rates. The client discussed this issue with the respondent on a number of occasions, and the respondent was aware that in order for the owners to refinance, he needed to obtain a release of the estate tax lien.

Over a period of seven years, from September of 1991 until September of 1998, the respondent repeatedly misrepresented to his client that work was being done on the estate matter, and that the delay in resolving the matter was due to a backlog in the Probate Court or at the Massachusetts Department of Revenue. The respondent made these misrepresentations to conceal from his client his lack of work on the estate matter.

In or about April of 1998, the decedent's son asked the respondent about the status of the probate of the decedent's estate. The respondent falsely represented to the decedent's son that the probate had been completed and a Form M-792 Certificate Releasing Massachusetts Estate Tax Lien had been issued. The decedent's son, daughter, and son-in-law applied to a lender to refinance the outstanding mortgage on the house. After their application to refinance had been approved, the lender's attorney informed the decedent's son that a closing could not be scheduled because no one had instituted proceedings to probate the decedent's estate. In August of 1998, the son's wife requested that the respondent provide documentation showing that he had in fact probated the decedent's estate. In response to this request, the respondent stated that another lawyer should be retained to probate the decedent's estate. By letter dated September 1, 1998 addressed to the son's wife, the respondent returned the decedent's will and stated that he would cover the legal costs of probating the decedent's estate.

The client retained successor counsel, who commenced the probate of the decedent's estate. On October 27, 1998, the client was appointed executor of the decedent's estate. Successor counsel obtained an estate tax closing letter dated November 13, 1998, and a release of the estate tax lien. In January of 1999, the son, daughter, and son-in-law successfully refinanced the mortgage on the house.

On April 1, 1999, counsel for the client and the beneficiaries of the estate sent the respondent a formal c. 93A demand letter seeking the return of their retainer and reimbursement for their successor attorney's fees, the interest on the house which they believe they overpaid due to their inability to timely refinance the mortgage, and incidental damages. On or about July 6, 1999, the client initiated a malpractice suit against the respondent. On July 26, 1999, the decedent's son filed a grievance against the respondent with the Office of the Bar Counsel. On October 13, 1999, counsel for the executor received a check from the respondent which was accepted in full settlement of the civil dispute.

By failing to take any steps to settle a simple estate for seven years, the respondent violated Canon Six, DR 6-101(A)(3), Canon Seven, DR 7-101(A)(1), (2), and (3), and Rules 1.1, 1.2(a), and 1.3 of the Massachusetts Rules of Professional Conduct. By misrepresenting to his client and to third parties that the probate of the estate had been completed when it had not, the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Canon One, DR 1-102(A)(4), and Rule 8.4(c) of the Massachusetts Rules of Professional Conduct. By failing to promptly return the unearned portion of his retainer, the respondent violated Canon Two, DR 2-110(A)(3), and Rule 1.16(d) of the Massachusetts Rules of Professional Conduct.

In mitigation, the respondent, who was admitted to practice in 1983, had no history of prior discipline.

The matter came before the Board of Bar Overseers on an agreed recommendation for discipline by public reprimand based on a stipulation of facts and disciplinary violations. The Board adopted the parties' recommendation and approved a public reprimand on December 13, 1999.

1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.



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