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Commonwealth of Massachusetts

PUBLIC REPRIMAND NO. 2001-07



IN RE: FREDERICK G. BARRY, JR.

Order (public reprimand) entered by the Board March 27, 2001.

SUMMARY1


The respondent was the named executor in the will of a person who died testate on April 16, 1997. On June 3, 1997 the respondent filed a petition to probate the will of the decedent. The will was allowed, and the respondent appointed, on July 16, 1997. At the time of his death, the decedent was survived by three adult children, and no other heirs-at-law.

At the time of his death, the decedent owned real estate in Canton, a home in Milton and other personalty of debatable value. The home in Milton was occupied by the decedentís live-in companion of the past fifteen years.

The decedentís will left 40% of the residuary estate to the companion and 20% to each of the three children of the decedent. The companion was given a life estate in the Milton property, the remainder to the children. The decedentís cousin was given the right to purchase the Canton property for 80% of its fair market value. There was substantial acrimony between the companion and the children, including disputes over ownership of a ring, ownership of various contents of the home in Milton and the fair market value of the Canton property.

On June 23, 1998, an attorney representing the children filed various motions in the pending probate court matter, including a motion to remove the respondent as executor. The children objected, among other matters, to the respondentís failure to provide evidence of receipts for the sale of personal property and of the amount of rental income collected from the tenant of the Canton property. However, on August 31, 1999, after trial commenced, the entire estate, including finalization of the first and final account, was resolved by stipulation.

During his administration of the estate, the respondent did not open a separate interest bearing estate account. The respondent instead deposited estate funds into his IOLTA account. The respondent did not denominate his IOLTA account as an IOLTA account, clientsí fund account or with other words of similar import. Also during his administration of the estate, the respondent did not maintain adequate records of his handling of estate funds. In addition to pooling the estate funds with other client funds, the respondent did not keep any contemporaneous estate ledger of receipt and disbursements. The respondent did not keep copies of his deposit slips or deposit items. Deposit slips obtained from the respondentís bank often included multiple deposit items, some estate-related, others not, so that the respondent could not, in every case, document the source of each deposit listed on his monthly bank statements.

The respondent claimed in his probate account to have received $10,100.00 for the sale of various items of personalty, but could not document the exact amount. Some of the items were paid for in cash and other items by check. The respondent could not document each cash receipt or each check received by reference to any specific deposit item. The respondent also did not maintain copies of any bill of sales or receipts. With respect to rental income received from the decedentís cousin, the respondent was only able to identify deposit items based on personal recollection. He could not document that the amount of rental income claimed in the probate account was in fact received.

The respondent further claimed to have received $3,500.00 in cash in one payment in connection with the sale of equipment. The respondent did not deposit the cash into his IOLTA account but applied it to outstanding legal fees. The respondent kept no other record to substantiate that $3,500.00 represented the actual amount received.

The respondentís first and final account as amended accounted for all disbursements and the approximate amount of all receipts. However, due to the respondentís inadequate record keeping, Bar Counsel was required to subpoena bank records and obtain applicable portions of the respondentís account register in order to verify the deposits and disbursements regarding the estate.

The respondentís failure to maintain adequate or complete records of his receipt, maintenance and disposition of estate funds, as described above, was in violation of Mass. R. Prof. C. 1.15(a).

The respondentís deposit of estate funds to his IOLTA account and his failure to appropriately label the account, as described above, was in violation of Mass. R. Prof. C. 1.15(a), (d) and (e).

This matter came before the Board on February 19, 2001 on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The Board accepted the partiesí recommendation and imposed a public reprimand.

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



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