Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts

Public Reprimand No. 2002-18



IN RE: DANIEL S. FISCHBACH

Order (public reprimand) entered by the Board July 19, 2002.

SUMMARY1


Between 1982 and 1998, the respondent represented a married couple by preparing their joint tax returns for the years 1981 to 1997. Each year, in anticipation of preparing their tax returns, the respondent sent a “tax organizer” kit to the couple jointly, and each year, after preparing their tax returns, he billed them jointly.

In January of 1999, the respondent sent the couple a tax organizer kit in anticipation of preparing their 1998 tax return. Also in or after January 1999, at her husband’s request, the wife provided her husband with the tax information necessary to prepare their 1998 joint return, including a form 1099 issued to the wife by a property management company for which she worked as an independent contractor.

In or about March of 1999, the husband telephoned the respondent and indicated that he did not wish to file his tax return as “married filing jointly” because he did not believe his wife intended to report her entire income. The husband stated that renovations to the marital home by the property management company for which his wife worked were not included as income on the form 1099. During this same telephone conversation, the husband also told the respondent that he intended to file for divorce from the wife.

The husband then advised the wife that he would be filing a separate tax return. The wife subsequently telephoned the respondent to discuss her concerns about the tax consequences of filing separately. The respondent confirmed to the wife that he was filing a separate return on behalf of the husband and that he would not be preparing her tax return. He nonetheless agreed to answer general questions for her. He did not tell the wife that he would disclose her communications to the husband.

During their conversation, the respondent asked the wife if she had income other than that reported on her form 1099. The respondent and the wife discussed the renovation work that had been done by the wife’s employer on the marital residence. The respondent gave the wife advice as to the proper treatment of in-kind income and reporting requirements.

After speaking with the wife, the respondent reported the substance of his telephone conversation with the wife to the husband. The respondent did not have the wife’s consent to make this disclosure.

A tax preparer prepared the wife’s 1998 tax returns as “married filing separately”. The respondent prepared the husband’s 1998 tax returns, also as “married filing separately”.

On April 7, 1999, the husband through other counsel filed a complaint for divorce against the wife. In June 1999, at the request of the husband’s (then) divorce attorney, the respondent signed an affidavit describing his version of his conversation with the wife in March or April of 1999. The husband’s divorce attorney requested the affidavit because the amount of income earned by the wife was a disputed issue in the divorce. The respondent’s affidavit recounted statements allegedly made by the wife that her compensation was considerably higher than the amount claimed and stated further that the respondent had advised her that all compensation must be reported. The affidavit was filed by the husband’s counsel in probate court.

The respondent’s asking for potentially harmful information from the wife for the benefit of his client, the husband, all without making the respondent’s role in the case clear to the wife, violated Mass. R. Prof. C. 4.3(a) and 8.4(h). The respondent’s conduct in giving advice to the wife, an unrepresented person whose interests had a reasonable possibility of being in conflict with the interests of the respondent’s client, violated Mass. R. Prof. C. 4.3(b). The respondent’s conduct in disclosing to the husband and to the probate court information gained from his former client, the wife, constitutes revealing confidential client information relating to the representation in violation of Mass. R. Prof. C. 1.9(c)(2), and using confidential information relating to the representation to the disadvantage of a former client or to the advantage of a third person, in violation of Mass. R. Prof. C. 1.9(c)(1).

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The Board accepted the parties’ recommendation and imposed a public reprimand.

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



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2001. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.