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Commonwealth of Massachusetts

Public Reprimand No. 2002-28



IN RE: HERBERT L. KLIGER

Order (public reprimand) entered by the Board December 31, 2002.

SUMMARY1


In February 1992, the respondent undertook to represent a client with a long history of mental illness. The respondent had been friendly with the client and her mother for over twenty years. The clientís mother had been appointed her guardian in 1985 because the client was unable to care for herself. When the mother had a stroke and became incapacitated in December 1991, the client turned to the respondent for assistance because only the mother could write checks and pay bills.

In March 1992, the respondent, on the clientís behalf, filed a petition for dismissal of guardianship with the probate court. After hearing, the probate court found the client competent to handle her affairs and terminated the guardianship. Although legally competent, the client required the respondentís assistance in handling her own and her motherís affairs.

Subsequently, the respondent petitioned on the clientís behalf for conservatorship of her mother, which the court approved in May 1992. In June 1992, the respondent filed an inventory in the conservatorship which reported that the motherís estate had $381,605.51 in personalty and $287,500 in real estate. On behalf of the client, the respondent opened an estate account and made himself a signatory. The respondent deposited rents, the clientís social security benefits, the motherís pension and other public benefits to the estate account. The respondent paid the bills for the client and the mother through the estate account.

In October 1992, the mother died intestate leaving the client as her only heir. In November 1992, the respondent filed a petition for administration in the probate court requesting that he and the client be appointed co-administrators of the motherís estate, which was allowed. Upon the motherís death, the respondent assumed control of the estate funds. The respondent opened several bank accounts with the estateís funds to which he deposited rents and the clientís social security benefits. The respondent failed to maintain complete and adequate records of the accounts.

Between February 1992 and July 1995, the respondent withheld at least $89,232 for his fees as co-administrator of the motherís estate, as attorney for the client and as the clientís unofficial caretaker. Most of the services performed for the client were non-legal, and the respondent improperly billed the client at his regular legal rate of $200 per hour. In addition, the respondent did not maintain adequate documentation to support all the fees charged. The respondent billed the motherís estate an excessive fee to prepare the Massachusetts estate tax return, charging for 16 hours at a rate of $200 per hour.

In August 1995, the respondent filed first and final accounts for the motherís conservatorship and for the estate, which were allowed. After expenses and fees, a final distribution was made to the client.

In August 1995, the Department of Mental Health filed a guardianship petition for the client. In December 1995, the probate court appointed a temporary guardian (a permanent guardian was appointed in June 1996) and a guardian ad litem for the client.

In February 1996, the guardian ad litem filed reports with the court analyzing the respondentís claims for expenses and legal fees in connection with his role as co-administrator of the motherís estate and as attorney for the client. Because of his inadequate record keeping, the respondent was unable to produce to the guardian a complete set of bank statements for each of the accounts.

The probate court appointed counsel for the respondentís former client and ordered that an equity petition be filed against the respondent. Thereafter, the respondent obtained the necessary documentation and accounted for the funds in dispute. In July 1999, the equity complaint against the respondent was settled to the guardianís satisfaction with the payment by the respondent of $60,000 to the guardianship estate.

The respondentís failure to maintain adequate records of his handling and disposition of the motherís funds during the conservatorship, of the motherís estateís funds and of the clientís separate funds, and his failure to properly account for the clientsí funds violated Canon Nine, Disciplinary Rules 9-102(B)(3) and (4).

The respondentís conduct in charging the client for non-legal work at his legal rates and in charging excessive fees violated Canon One, Disciplinary Rules 1-102(A)(6) and Canon Two, Disciplinary Rule 2-106(A).

This matter came before the Board on December 9, 2002, 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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