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Commonwealth of Massachusetts

Public Reprimand No. 2006-10



NANCY M. WEISSMAN

Order (public reprimand) entered by the Board July 18, 2006.

SUMMARY1


In September and October 2004, the father of a 20-year old college student who had signed a purchase and sale agreement for a condominium in Massachusetts hired the respondent to assist the son in the purchase. The respondent, the father, and the son agreed to a fee of $225 per hour, which was incorporated in a written fee agreement that also called for the respondentís fee to be paid at the closing. On or about September 27, 2004, the father, who lived in Florida, paid the respondent a retainer of $500.

Shortly after she was retained, the respondent notified the clients that she wanted to increase her hourly fee rate to $375 per hour because of unforeseen problems. The father was initially willing to agree to the increase, but the son was not. On September 30, 2004, both the father and son told the respondent that they would not agree to the increased fee rate, and the written fee agreement was not amended in writing.

The respondent performed approximately five hours of legal services before the son discharged her on October 4, 2004, shortly before the closing. The respondent presented the clients with a bill in the amount of $1,572, crediting the retainer and using the rate of $375 per hour. The son refused to pay the bill at the closing because the respondentís bill was not based on the $225 per hour rate specified in the written fee agreement. The son contended that, at most, the respondent was owed only $625 at the lower rate.

On December 3, 2004, after the representation concluded, the respondent filed a small claims action against both the father and son, seeking an unpaid balance of $1,572 plus $40 in court costs. On or about December 22, 2004, the son sent an email to the respondent offering to send her a check for the balance of $625 if she agreed to honor their written fee agreement. Although the respondent did not reply to the email, on or about January 5, 2005, the son sent the respondent a check for $625, which he considered to be the balance due on the respondentís bill based on the $225/hour billing rate. The respondent cashed the sonís check for $625 without limitation, and by letter dated January 7, 2005, the respondent notified the father and son that the balance due was $947.

On January 20, 2005, the son appeared without counsel for the small claims trial. The father did not appear because he had been injured in an automobile accident, and instead sent a letter to the court asking for a continuance due to his injuries. The respondent appeared and met with the son before the hearing to discuss a possible settlement of the claim. Although the son believed that the respondentís bill had been satisfied in full, he offered to pay the respondent an additional $250 if she would dismiss the small claims action against himself and his father.

The respondent presented the son with a typed draft agreement for judgment that she had brought with her to the small claims trial. The draft agreement provided that judgment would enter for the respondent in the amount of $947 against the son, the son would waive all rights of appeal, and execution would enter immediately.

After the son proposed to settle the case for $250, the respondent made handwritten changes to the draft agreement to provide that the action would be dismissed as to the father, and that, if the son paid her $250 on or before January 21, 2005, she would notify the court when the check cleared. The respondent did not delete the provision stating that judgment would enter in the amount of $947 against the son.

The respondent did not disclose to the son that payment of $250 before January 21, 2005 would not satisfy the judgment and that the son would be liable for the remaining amount. She also did not tell the son that the only advice she could give him regarding the effect of the settlement was the advice to retain independent counsel. The respondent reasonably should have known that the son misunderstood her role in the matter and that he was relying on her legal expertise in explaining the terms of the proposed judgment and the effect of the amendment. The respondent did not make reasonable efforts to correct the sonís misunderstanding.

The son erroneously believed that if he signed the proposed agreement for judgment, the case against both him and his father would be dismissed on the condition that he paid the respondent $250 by January 21, 2005. The son signed the proposed agreement for judgment as amended by the respondent, and the respondent filed the agreement with the court. On January 21, 2005, the son paid the respondent $250. The son believed that after his check cleared, the small claims suit would be dismissed.

On February 10, 2005, the respondent sought an execution for the full amount of the judgment, and on February 24, 2005, the respondent recorded a lien in the amount of $970.35 against the sonís interest in the condominium, without notice to the father and son. In seeking the execution and lien in the full amount, the respondent forgot that she had been paid $250 in January.

On or about April 22, 2005, the father and son learned that judgment and execution had entered against the son in the amount of $947, and that the respondent had recorded a lien in the amount of $970.35 against the sonís interest in the condominium to secure payment of the judgment. On July 15, 2005, the father and son filed a motion to set aside the judgment and lien. On August 26, 2005, the respondent notified the court that she assented to the dismissal of the action with prejudice. On March 9, 2006, the respondent recorded a release of lien at the Registry of Deeds.

By not clearly communicating to the son her intentions in amending the proposed agreement for judgment and by not advising the son to consult independent counsel, the respondent violated Mass. R. Prof. C. 4.3(a) and (b). The respondentís failure to confirm the amount due to her and to credit the son with the amount paid against the judgment when she sought an execution and filed a lien for the full amount of the judgment violated Mass. R. Prof. C. 3.1 and 8.4(d) and (h).

The respondent was admitted to the Bar of the Commonwealth on December 20, 1983. She had no prior discipline.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for discipline. On July 10, 2006, the Board voted to accept the partiesí recommendation and to 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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