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Commonwealth of Massachusetts

Public Reprimand No. 2004-004



STEPHEN G. VIEGAS

Order (public reprimand) entered by the Board March 16, 2004.

SUMMARY1


An elderly woman, a long time close friend of the respondent’s parents, (the “testatrix”), engaged the respondent to draft a will for her in 1982, which she executed on November 4, 1982.

In 1996, the testatrix consulted the respondent about changing her will. The testatrix and respondent discussed proposed changes at a number of meetings in the years 1996 through March 2001, but did not settle on the final provisions until March 29, 2001, shortly before the testatrix’ death.

In 1999, the testatrix became very ill from emphysema. Between March 1999, and the time of her death, in addition to legal services, the respondent performed personal services for the testatrix, including arranging for her care, responding to medical emergencies, and consulting with family members about her condition and needs. The testatrix paid the respondent for only some of these services.

In October 1999, the testatrix told the respondent that she wanted him to receive a fee of $100,000 for administering her estate. The respondent explained to her that the court would have to approve any fee for his attorney and fiduciary services; and that a court would be unlikely to approve a fee of $100,000. The respondent explained that only a bequest guaranteed that a specified amount would be given to a beneficiary. The testatrix then told the respondent that she wanted to include a bequest to him of $100,000. The respondent suggested that the testatrix retain another attorney to draft the will, but did not insist that she do so.

By March 2001, the health of the testatrix had deteriorated markedly. During March 2001, the respondent and the testatrix had several discussions of the provisions of her will, in all of which the testatrix informed the respondent of additional changes that she wished to incorporate. The testatrix told the respondent that she wanted him and her brother to serve as co-executors.

The respondent drafted another will that incorporated the changes desired by the testatrix, and delivered it to the testatrix, by hand, on March 27, 2001. In a cover letter accompanying the revised will, the respondent wrote, “If you would like to change your mind about the bequest to me, you should feel free to tell me what you would like. I am very comfortable about any change you want to make—even if you want to eliminate it. If you want [sic] change the bequest to me, please let me know and I will make the appropriate changes.”

In a discussion between the testatrix and the respondent on March 27, 2001, the testatrix told the respondent to reduce the bequest to $75,000. At that time the testatrix believed that her estate was worth about $1,000,000.

The respondent delivered the final revised will to the testatrix on March 29, 2001. The final revised will was drafted by the respondent and included a bequest to him of the lesser of $75,000 or 7.5% of the estate.

The testatrix executed the will on April 9, 2001, in the presence of another attorney and two witnesses. The testatrix died later that day.

By preparing an instrument under which the respondent received a substantial bequest from a person to whom he was not related, the respondent violated Mass. R. Prof. C. 1.8(c).

In mitigation, the respondent filed a disclaimer, under M.G.L., c. 191A, disclaiming the $75,000 bequeathed to him under the last will and testament of the testatrix. In the first and final account, the respondent disclosed that he will collect fiduciary and attorney’s fees from the estate in the amount of $ 25,000. Only one of the decedent’s many heirs has objected to the respondent’s fees, and that objection appears to have no basis.

The matter came before the Board of Bar Overseers on an agreed recommendation for discipline by public reprimand based on a stipulation of the parties. On March 8, 2004, the Board of Bar Overseers voted to administer a public reprimand to the respondent.

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



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