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Order (public reprimand) entered by the Board April 26, 2001


The respondent was executor of the estate of a July 1992 decedent. The estate's assets consisted of approximately $120,000 in personalty, primarily bank accounts, and a three family house in poor condition assessed at $75,000. The estate had 15 beneficiaries, seven of which were charities receiving 80% of estate assets. The respondent timely paid estate debts and filed the estate tax return.

The respondent delayed in disposing of the real estate, in part because of the condition of the house, in part because he hoped that a proposed casino for the area in which the house was located would be approved. The casino was not approved. The respondent did not press for vigorous marketing of the property until December 1997. The house sold in January 1999 for $29,000.

During the period between the decedent's death in 1992 and the house's sale in 1999 the respondent had difficulty obtaining and retaining tenants. He received only $11,095 in income from the house, but paid out $23,905.67, with a net loss of $12,817 to the estate.

The respondent made partial distributions to one charitable and two individual beneficiaries between June 1993 and November 1995. Although he was holding over $90,000 in estate assets, he made no other distributions until December 1999, approximately 7 ½ years after the decedent's death, when he made final distributions to beneficiaries.

The respondent delayed in filing his accounts. He filed his first account with the probate court in January 1998, and his second and final account in August 1999.

By failing to make partial distributions to beneficiaries, by failing aggressively to market the property, by failing to file timely accounts with the probate court, and by generally delaying seven and a half years in completing probate of this estate, the respondent violated Canon Six, DR 6-101(A)(3), Canon Seven, DR 7-101(A)(1) and (3), and Mass. R. Prof. C. 1.1 and 1.3.

In addition, although the estate always had adequate funds in a certificate of deposit, during the period prior to January 1998 the respondent made numerous payments on behalf of the estate from his IOLTA account when no estate funds were on deposit in the account. The shortfalls, which continued for periods from one to seventeen months and ranged from $33.57 to $6,500, were covered by fees that had not been withdrawn as earned, and interest that the bank had failed to transmit to the IOLTA Committee. The respondent subsequently transferred estate funds into his IOLTA account to cover the shortfalls and caused the back interest to be repaid from his IOLTA account to the IOLTA Committee.

The respondent's conduct in paying estate bills from his IOLTA account before he transferred corresponding estate funds from certificates of deposit, and his failure promptly to withdraw fees when earned, violated Canon Nine, DR 9-102(A)(2) and (B)(3).

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation that the respondent receive a public reprimand. On February 12, 2001 the Board adopted the parties' recommendation.

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

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