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Commonwealth of Massachusetts

Public Reprimand No. 2004-14



MARSHALL L. FIELD

Order (public reprimand) entered by the Board July 28, 2004.

SUMMARY1


The respondent and his wife were longtime friends of an elderly woman (“the testatrix”), the relationship arising out of a prior relationship between the testatrix, her late husband, and the respondent’s father. The respondent had known the testatrix for over 60 years and had maintained a close relationship with her until her death on November 6, 2002, at the age of 83. The respondent’s wife had also maintained a close relationship with the testatrix for 40 years. The testatrix had designated the respondent’s wife as her attorney in fact under a durable power of attorney and as her health care agent under a health care proxy executed in 1988. The testatrix was not related to either the respondent or his wife.

The respondent performed various legal services for the testatrix over the years, including the preparation of wills and codicils. In 1989, the testatrix engaged the respondent to prepare a will for her, which she executed on December 22, 1989. This will did not include a bequest to the respondent or his wife. On September 8, 1993, the testatrix executed a second codicil prepared by the respondent in which there was a provision bequeathing to the respondent and his wife a brokerage account. A year later the testatrix had the respondent prepare another will for her, which she executed on September 19, 1994. In this will, the testatrix bequeathed the same account to the respondent and his wife. The testatrix also named the respondent as executor of the will and co-trustee of three trusts created under the will and named the respondent’s wife as successor co-executor of the will and successor co-trustee of one of the trusts.

The testatrix again had the respondent prepare a new will for her in 1999. She executed this will on September 14, 1999 in the office of another attorney in the presence of the respondent and two witnesses. In this will, the testatrix bequeathed $25,000 “to [her] good friend” the respondent’s wife “for her many years of personal advice regarding [her] personal and medical concerns.” The testatrix also named the respondent as executor of the will and co-trustee of two trusts created under the will and named the respondent’s wife as successor co-executor of the will and successor co-trustee of the two trusts.

The testatrix had the respondent prepare two subsequent codicils, which she executed on October 12, 2000 and on September 20, 2002. Neither of these codicils modified the bequest to the respondent’s wife or changed the executors or trustees named in the will.

The testatrix died on November 6, 2002. After the respondent filed the testatrix’ will and codicils with the probate court, an heir-at-law, who was not a beneficiary in these documents, objected to the $25,000 bequest to the respondent’s wife on the grounds that it violated Mass. R. Prof. C. 1.8(c). The respondent’s wife voluntarily declined the testamentary gift of $25,000 under M.G.L.A. c. 191A, waiving the $25,000 bequeathed to her.

By preparing an instrument under which the respondent or his spouse 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 and his wife had known the testatrix for many decades and maintained a close relationship with her. They frequently socialized and spent all major holidays together. The testatrix relied heavily on the respondent’s wife for personal and medical advice, especially during the last 15 years of the testatrix’ life. The testatrix felt very strongly about her bequest to the respondent’s wife and made her intentions known to the respondent and his wife on numerous occasions. The testatrix’ estate was valued in excess of $2,000,000, and the $25,000 bequest to the respondent’s wife was a very small percentage of the total, less that 2%. The respondent did not solicit or suggest either the bequest to his wife or the bequest in a previous will to both his wife and him. The respondent never charged the testatrix for any of the legal services rendered for wills, codicils, and other legal matters over the years.

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. The respondent has no prior discipline. On June 14, 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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