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Commonwealth of Massachusetts

Public Reprimand No. 2003-16



FRANK R. SAIA

Order (public reprimand) entered by the Board December 30, 2003.

SUMMARY1


In or about February 2002, the respondent was retained by a client to represent her in collecting death benefits due her from her estranged husbandís union after his death on December 21, 2001. The client knew the respondent because she had worked for him as a secretary in the 1980ís and because he had represented her in a variety of other matters since then.

At the time that the respondent was retained in 2002, he and the client, because of their long relationship, did not have a clear discussion or reach a firm agreement concerning the basis or rate of the fee to be charged for collecting the death benefits. Before the benefits were received, the respondent decided to charge the client on a contingent fee basis, but he did not communicate this decision, or did not communicate it adequately, to the client, and did not prepare or cause her to execute a written contingent fee agreement. The respondent also did not understand that, even if a written fee agreement had been executed, a contingent fee was improper because the receipt of the death benefits was not a matter for which there was any contingency as to the outcome.

At the time of her husbandís death, the union held an outstanding judgment against the client. The judgment arose from her failure to repay, from the proceeds of a personal injury case settled by the respondent on her behalf in 1998, certain funds advanced to her by the union for medical expenses.

The respondentís services to the client in 2002 after her husbandís death consisted primarily of negotiations with the funeral home that resulted in a reduction of the funeral bill, review of correspondence from the union and its counsel concerning the calculation of benefits net of the outstanding judgment, and negotiations with the union concerning the form of payment. The respondent prepared, but did not file, a petition for administration of the husbandís estate. In fact, there were no assets requiring administration.

On or about May 17, 2002, prior to the receipt of the death benefits from the union, the respondent presented the client with a settlement statement showing expected benefits of $62,987.54 and fees owed to the respondent of $15,746.89. The respondent calculated his fee as 25% of the gross recovery.

After further adjustments, the gross amount of benefits due was recalculated by the union as $61,317.12. Net of withholding taxes and the outstanding judgment, the union on June 19, 2002 remitted to the respondent on behalf of the client two checks totaling $34,128.49. Because the total received was a net sum, the respondent did not focus on the fact that the calculation of his claimed 25% fee on the gross sum should have changed. From the net received, the respondent therefore paid himself a fee of $15,746.89 per the May 17, 2002 settlement statement, paid $5000 to the funeral home, and remitted the balance of $13,381.60 to the client.

In the absence both of a true contingency and a written contingent fee agreement, the fee that the respondent was paid was clearly excessive in the circumstances. After the client filed a complaint with Bar Counsel, the respondent refunded $10,800. The client is satisfied.

The respondentís charging a contingent fee, without clearly communicating the basis or rate of the fee to the client, without a written contingent fee agreement with the client, and in a matter as to which the outcome was not contingent, was conduct in violation of Mass. R. Prof. C. 1.5(b),(c). The respondentís charging a clearly excessive fee was in violation of Mass. R. Prof. C. 1.5(a).

In aggravation, the respondent has a 1990 public censure for misconduct arising out of a real estate transaction in which he had a personal interest. Matter of Saia, 6 Mass. Att'y Disc. R. 294 (1990). The respondent also has a 1983 informal admonition arising out of his attempt to leverage a fee dispute by withholding funds due the client in another matter; the informal admonition is not dismissed because of the later discipline. In mitigation, as noted above, the respondent voluntarily refunded $10,800 of the $15,746.89 fee.

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 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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