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Commonwealth of Massachusetts

Public Reprimand No. 2005-29


Order (public reprimand) entered by the Board January 5, 2006


The respondent received a public reprimand for his conduct in two separate matters.

In the first matter, on July 24, 1984, a mother executed a realty trust naming herself as trustee, and her two sons and three daughters as successor trustees. On July 24, 1984, the mother conveyed her house to the trust. On November 4, 1995, the mother executed a will leaving all her real and personal property to her son Mark, and any real property held by the trust in equal shares to her two sons, Mark and Michael. On November 4, 1995, the mother also executed a certificate of beneficial interests naming her two sons, Mark and Michael, as the only beneficiaries of the trust, each to receive a 50% interest in the trust assets.

The mother died on November 23, 1997. In 2000 or 2001, Mark unilaterally agreed to sell the house to buyer A for $52,000. In 2001, Michael learned of this proposed sale. On or about March 20, 2001, Michael and his three sisters entered into a purchase and sale agreement to sell the house for $109,000 to buyer B. On or about April 24, 2001, Mark unilaterally purported to assign his interest in the trust to buyer A.

In 2001, Michael engaged the respondent to assist him in blocking his brother’s sale of the house to buyer A. In 2001, the three sisters also asked the respondent to represent them in obtaining a five-way split of the proceeds from the sale of the house. After Michael agreed that the proceeds from the sale of the house should be divided equally among all the siblings, and after the three sisters and Michael agreed to the joint representation after consultation with the respondent, the respondent agreed to represent Michael and the three sisters in blocking Mark’s unilateral sale of the house to buyer A and in obtaining a five-way division of the proceeds from the sale of the house to buyer B.

On or about June 11, 2001, the respondent filed a complaint in Plymouth County Probate and Family Court seeking to rescind the sale of Mark’s interest in the house to buyer A; to order Mark to cooperate in the sale of the house to buyer B or to remove Mark as a co-trustee; to amend the Trust to make all trustees equal beneficiaries; and to obtain a declaration that a majority of trustees had the power to alter or amend the Trust and to sell the trust property.

On or about October 23, 2001, the respondent filed a motion for summary judgment on behalf of Michael and the three sisters. On January 9, 2002, the court entered an order allowing in part and denying in part the respondent’s summary judgment motion. The court ruled that the purported sale of Mark’s interest to buyer A was null and void, but declined to remove Mark as trustee or to force his cooperation in the proposed sale to buyer B.

By letter dated February 6, 2002, the respondent informed his clients that Mark was continuing to refuse to divide the beneficial interest in the trust equally among the five siblings, and was taking the position that the trust could not be changed to reduce his 50% beneficial interest by a majority vote of the trustees. The respondent advised his clients that if any of his clients wanted to continue to seek a five-way division of the trust assets, he would be unable to continue with the joint representation, and would only represent Michael.

After one of the three sisters refused to agree to abandon her claim to a 20% beneficial interest in the trust, and refused to resign as co-trustee in order to allow the sale of the property to move forward, on March 20, 2002, the respondent filed a motion to withdraw as counsel to the three sisters, but to continue as attorney for Michael. On March 28, 2002, this motion was allowed.

On April 8, 2002, Mark filed a separate action in Plymouth County Probate and Family Court to remove his siblings as co-trustees of the trust. Although the petition filed by Mark named Michael as a defendant along with his sisters, the petition stated that Michael was named as a defendant only because he was a party in interest. On April 23, 2002, the court entered an order that if Michael and the three sisters wished to object to the petition to remove them as trustees, they had to file a written appearance in court on or before May 21, 2002.

On April 30, 2002, the respondent filed an appearance on behalf of Michael in the second action, assenting to the removal of the three sisters as co-trustees, and objecting to Michael’s removal. The sisters did not file objections to the petition for removal. On or about May 23, 2002, the respondent, on behalf of Michael, signed a joint stipulation with Mark, agreeing that the three sisters should be removed as trustees. On May 28, 2002, the court ordered that the three sisters be removed as trustees, and that Michael and Mark remain as the sole trustees of the trust.

Before filing his appearance and entering into a stipulation in the second action on behalf of Michael, by which he agreed that the three sisters should be removed as trustees, the respondent did not obtain the consent after consultation from one of the sisters who still wished to continue to serve as trustee and to seek a share of the beneficial interest of the trust for herself.

By filing an appearance and entering into a stipulation on behalf of a client in a second matter, in which the second client’s interests were materially adverse to the interests of a former client in a substantially related matter, without first obtaining the consent after consultation of the former client, the respondent violated Mass. R. Prof. C. 1.9(a).

In the second matter, the respondent represented a husband in a contested divorce. The divorce trial took place in January 2003. The wife represented herself pro se.

A material issue at the divorce trial was the source of funds used to purchase the marital home. The wife testified at trial that she purchased the home primarily with funds loaned to her by her aunt, and that she had made some repayments of the loan to her aunt. The husband testified at trial that the funds used to purchase the marital home from his wife’s aunt were a gift, not a loan, and that the gift was made to both him and his wife by the aunt.

In 2003, the court entered a nisi judgment of divorce. As part of the property settlement, the court awarded the marital home to the wife based on findings that the aunt had loaned the wife and not the husband the funds to purchase the property, and that the wife had made some payments to the aunt to repay the loan.

After the trial, the husband told the respondent that in connection with the wife’s application for a loan to purchase the property, the wife had obtained a letter from her aunt describing the funds as a “gift”. The respondent agreed to write to the wife’s former mortgage company to request a copy of the “gift” letter. The respondent’s purpose in obtaining a copy of the “gift” letter was to assist his client in pursuing an appeal from the divorce judgment or a motion for relief from judgment based on the wife’s alleged perjury at the divorce trial that the funds from the aunt were a loan, and not a gift.

On December 12, 2003, the respondent wrote to the wife’s former mortgage company and requested a copy of the “gift” letter from the aunt in connection with the wife’s mortgage loan. In the letter, the respondent stated: “We need this gift letter for estate planning purposes and our copy has been misplaced; we need to document that you had in fact been given this letter.” The respondent sent the December 12, 2003 letter on the respondent’s letterhead stationery. In the letter, the respondent did not identify the wife as his client, although the respondent was aware that the recipient was likely to interpret the letter to mean that the respondent was representing the wife in an estate planning matter. The respondent did not send a copy of this letter to the wife and did not have the wife’s permission to seek information related to her loan application from her former mortgage company. When the respondent received no reply to his letter, he sent a follow-up letter on January 29, 2004.

In the meantime, the wife learned that the respondent had requested information from her file when the mortgage company wrote to the wife after receiving the respondent’s first letter that the company could not find a copy of a gift letter in the file. At the wife’s request, the mortgage company sent her copies of the letters received from the respondent. The mortgage company did not respond directly to the respondent.

By intentionally holding himself out in his correspondence to the mortgage company as the wife’s attorney, the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c).

The respondent was admitted to the Bar of the Commonwealth on June 7, 1978. In aggravation, the respondent received an admonition in 2002 for failing to adequately communicate with a client, and failing to act diligently with respect to two client matters. Admonition No. 02-43, 18 Mass. Att’y Disc. R. 714 (2002).

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for discipline. The Board of Bar Overseers accepted the parties’ recommendation and on December 12, 2005, the Board imposed a public reprimand on the condition that the respondent take and pass the multi-state professional responsibility exam (MPRE) within one year after entry of the order of public reprimand, or be suspended for thirty days if he fails to do so.

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

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