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Commonwealth of Massachusetts

Public Reprimand No. 2002-22



IN RE: ROBERT MICHAEL FUSTER

Order (public reprimand) entered by the Board September 18, 2002.

SUMMARY1


During 1996 and 1997, the respondent served as the president of the board of directors of a non-profit corporation in Massachusetts (charity). During that time period, the respondent also provided pro bono legal services to the charity.

In 1996, the respondent commenced representing a client in her divorce and post-divorce matters. The client was employed by the charity. The respondent did not advise the client that his professional relationship with her employer did or might interfere with his professional judgment in her behalf, and did not obtain the client’s consent, after full disclosure, to the representation.

During 1996 and 1997, the manager of the charity, who was the client’s supervisor, consulted with the respondent concerning problems with the client’s job performance. In or about late July of 1997, the supervisor informed the respondent that he was planning to terminate the client’s employment, and requested the respondent’s advice about how and when to notify the client.

The respondent had already scheduled an appointment with the client for July 24, 1997 in connection with a post-divorce matter. The respondent suggested to the supervisor that they meet with the client in the respondent’s office when she came in for the appointment.

The charity’s interest in terminating the client’s employment differed from the client’s interests. The respondent did not, and, under the circumstances, could not obtain the parties’ informed consent to representing these differing interests.

The respondent did not advise the client in advance of her July 24, 1997 appointment that he had invited her supervisor to come to his office to meet with her that day about her employment. When the client arrived at the respondent’s office for her appointment, the respondent informed her that the purpose for their meeting had changed and he would not be advising her that day about her post-divorce matters. Instead, he proposed that he, the client, and her supervisor discuss her employment matters.

At the July 24, 1997 meeting, the respondent and the supervisor notified the client that she was being placed on a medical leave, effective immediately. Subsequently, on September 5, 1997, the charity terminated the client’s employment. The respondent did not withdraw from his representation of the client in her post-divorce matters until after the charity had terminated the client’s employment.

By accepting employment from his client in her domestic relations matters where the exercise of his professional judgment on her behalf was or might have been affected by his own business or personal interests through his position as president of the board of the charity, without first obtaining the consent of his client after full disclosure, the respondent violated Canon Five, DR 5-101(A).

By failing to decline proffered employment and by continuing multiple employment where the exercise of his independent professional judgment in behalf of a client was or was likely to be adversely affected by his representation of another client, or where it was likely to involve differing interests, where it was obvious that he could not adequately represent the interests of both clients, and where both clients did not consent to the representation after full disclosure, the respondent violated Canon Five, DR 5-105(A), (B), and (C).

By failing to withdraw from the client’s employment when it was obvious that his continued employment would result in the violation of a disciplinary rule, the respondent violated Canon Two, DR 2-110(B)(2).

The respondent was admitted to practice in 1972. In aggravation, the respondent received a private reprimand in 1990 for signing a client’s name to an offer without authority. Private Reprimand No. PR-90-6, 6 Mass. Att’y Disc. R. 399 (1990).

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for discipline. The Board of Bar Overseers accepted the parties’ recommendation and imposed a public reprimand on September 9, 2002.

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



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