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Commonwealth of Massachusetts

Public Reprimand No. 2005-9


Order (public reprimand) entered by the Board June 26, 2005.


In late 2001, the respondent was consulted by a relative about the relative's possible purchase of a house owned by an elderly woman who was then in a nursing home. The woman, a widow with no children, was of uncertain mental capacity. She had counsel who was also her attorney in fact under a durable power of attorney. The relative had long been acquainted with the woman as her neighbor, and he visited her from time to time in the nursing home.

The relative told the respondent that the woman's lawyer had discussed selling the house to pay for her care but that her elderly brother had raised questions about whether she should remain in the nursing home. At the relative's request and as the relative's attorney, the respondent agreed to ascertain whether the woman would be returning to her house and assess her competence to sell the property. The respondent and the relative visited the woman at the nursing home and spoke with her about her wishes regarding her house, among other things. The respondent knew before he visited the woman that she was represented by counsel in matters related to the house. He did not, however, obtain or seek the consent of her lawyer before he visited and talked to her. The woman's lawyer earned of the visit from the nursing home staff and instructed the respondent to have no further direct communications with his client.

Shortly thereafter, the respondentís relative informed him that the woman and her brother were dissatisfied with her lawyer's services and wanted to transfer management of her financial affairs, including matters related to the house, to the brother. The relative further related that the woman and her brother wanted the respondent to prepare the papers necessary to accomplish the transfer. On that basis, the respondent understood that the woman was terminating her lawyer's services in connection with her house and financial affairs. In reliance on the information provided by the relative, the respondent prepared for the woman's signature a revocation of the lawyer's power of attorney and a directive to the lawyer to transfer to her brother all her financial records, the keys to her house, and a full accounting. The respondent did not discuss these matters with the woman, her lawyer, or her brother or otherwise verify the information provided by the relative before preparing the papers, and he never had any communications with the brother. In fact, the woman had not discharged her lawyer, and the brother had not requested the respondent's assistance.

About a week after his initial visit, the respondent returned to the nursing home with his relative and again met with the woman. The respondent had with him to present to the woman the papers he had prepared for her and advised her that, by signing them, she could revoke the power of attorney and transfer management of her affairs to her brother. The respondent then believed that the woman was unrepresented in connection with her purported wish to effect the revocation and transfer. The respondent did not explain adequately to the woman that, although he had prepared the papers for her benefit, he was actually representing the relative in connection the relative's possible purchase of the house. The respondent did not advise the woman to retain or consult with new counsel of her own before executing the papers. The woman did not sign the papers prepared by the respondent. The respondent took no further action regarding the woman or her house.

By meeting with the woman and discussing with her matters related to the house and the management of her financial affairs when the respondent knew that she was represented by counsel, without the permission of her lawyer, the respondent violated Mass. R. Prof. C. 4.2 (communicating about representation with a person known to be represented by another lawyer absent the other lawyer's consent). By presenting the revocation and transfer papers to the woman at their second meeting, when the respondent believed that she was not represented by counsel, without adequately explaining his role as his relative's attorney, and by advising her about the papers when her interests in connection with the house were or might be adverse to those of the relative, the respondent violated Mass. R. Prof. C. 4.3 (stating or implying that the lawyer is disinterested in dealing with an unrepresented person on behalf of a client).

The respondent was admitted to the Massachusetts bar in 1967. He had no prior discipline.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and an agreed recommendation for discipline by public reprimand. On June 20, 2005, the Board voted to accept the partiesí recommendation and impose a public reprimand.

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

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