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Commonwealth of Massachusetts

Public Reprimand No. 2004-11



DONALD J. BONGIOVI

Order (public reprimand) entered by the Board May 20, 2004.

SUMMARY1


On or about January 26, 2001, a client retained the respondent to probate the estate of her deceased husband. She provided the respondent with two wills that had been written and executed by the decedent without benefit of counsel. The client was the primary beneficiary under both wills. One will was dated August 18, 1985, and the other was dated October 17, 1988. The client and the decedent had two children. One was born after the 1985 will was executed. The other was born after the 1988 will was executed.

The respondent incorrectly advised the client that the 1988 will was invalid because she was a named beneficiary and had signed the will as one of the two subscribing witnesses. The respondent, who had limited experience with estate matters, failed to review G.L. c.191 ß 2, or to consult with an experienced attorney before giving the client this advice. G.L. c.191 ß 2, provides that when a beneficiary signs the will as a witness, the devise or legacy to that beneficiary shall be void unless there are two other subscribing witnesses who are not similarly benefited under the will.

On March 1, 2001, the respondent petitioned to have the decedentís 1985 will admitted to probate. Believing it to be invalid, the respondent did not file or disclose the existence of the 1988 will to the court. The respondent failed to review G.L. c. 191, ß 13, and was not aware of his obligation to present all wills to the court.

In late July 2001, the respondent advised the client that he was curtailing his law practice due to illness, and he suggested that she retain new counsel to represent the estate. The respondent filed a notice of withdrawal on or about September 9, 2001. The client retained successor counsel and provided him with both wills.

Successor counsel filed the 1988 will with the court on or about November 9, 2001, together with a petition to disallow both wills and a petition for administration. The court disallowed the 1985 will because the original will could not be found and therefore was presumed destroyed by the testator. The 1988 will was disallowed because it was proved that the second subscribing witness had signed the will after the testator and had not actually witnessed the testator execute the document. The decedentís estate passed by intestacy.

The respondentís conduct in failing to familiarize himself with the provisions of G.L. c. 191 and failing to associate or consult with counsel experienced in probate matters before advising the client and taking action on her behalf, constituted inadequate preparation and incompetent representation in violation of Mass. R. Prof. C. 1.1.

The respondent has been a member of the bar since 1982. In aggravation, he received a public reprimand in 2002, for neglect, failure to adequately communicate with a client and charging an excessive fee in a collection matter.

The respondentís failure to file the will was not due to any intent to defraud by the respondent or the client but rather his inexperience in estate matters. The respondent only represented the client for a few months, and his errors were quickly corrected by successor counsel and caused no harm. Although the respondentís conduct is aggravated by prior discipline, the conduct in this case occurred before the discipline was imposed and before the respondent attended a CLE course designated by Bar Counsel on professional responsibility and law office management.

The respondent received a public reprimand for his conduct in this matter.

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



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