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Commonwealth of Massachusetts

Public Reprimand No. 2007-10


Order (public reprimand) entered by the Board May 10, 2007.


In or around 1980, a man was confined to a nursing home as a result of injuries that he sustained in a motor vehicle accident. He was unable to manage his financial affairs and his wife was appointed as his conservator on or about December 15, 1980. On October 24, 1989, the wardís wife was allowed to resign as conservator after her divorce from the ward. The respondent was then appointed as conservator.

At the time of the respondentís appointment, the ward was receiving a structured settlement annuity in the amount of $6,955.64 per month for life. The wardís other assets totaled approximately $91,000.00 and included: accounts at Mayflower Cooperative Bank, a Delaware Decatur Mutual fund, an Oppenheimer Equity Income Mutual Fund, a Seligman Income Mutual Fund and a Putnam Option Income Trust II account. The ward was also collecting social security benefits.

The respondent received and reviewed records that he received from the wardís wife and found monthly statements from the wardís investment accounts at Seligman, Oppenheimer and Delaware Decatur and an investment sheet that had been issued for a Putnam Option Income Trust II Account. The respondent did not find monthly statements for the Putnam account, and he formed an erroneous belief that the account had been closed. The respondent failed to contact Putnam or the prior conservator to confirm his belief.

The respondent also found records that indicated that the ward was receiving social security benefits at the time that the respondent was appointed as conservator. The Social Security Administration erroneously stopped paying benefits to the ward in 1990. The respondent failed to contact the Social Security Administration to inquire about the cessation of payments and failed to collect any social security benefits due the ward after 1990.

In or around the spring of 1995, the wardís wife advised the respondent about the existence of the Putnam Option Income Trust II Account. The respondent wrote to Putnam Investments requesting that the shares in the account be transferred to him as conservator for the ward. Putnam Investments sent a letter to the respondent on or about June 22, 1995 to advise him of the procedures and requirements for transfer of the shares in the account. The respondent failed to take any action and as a result, the funds held in the Putnam Option Income Trust II Account escheated to the Commonwealth on or about October 25, 1995.

The respondent again wrote to Putnam Investments in or around July 1998 to request that the wardís shares in the account be transferred to the respondent as conservator. Putnam informed the respondent that the funds had escheated to the Commonwealth. The respondent wrote to the Commonwealth on or about July 31, 1998 to request the necessary documents required to file a claim for the escheated funds. On or about August 1, 1998, after receiving the instructions from the Commonwealth, the respondent filed a claim for the Putnam funds on behalf of the ward but did not follow up and did not receive payment on the claim.

In April 1999, the wardís son petitioned the court to be appointed co-conservator for his father. The respondent assented to the petition and the wardís son was appointed as co-conservator on or about May 20, 1999. In June 1999, the wardís son requested that the respondent resign as co-conservator. The respondent filed a motion to resign, which was heard by the court on November 4, 1999. At the time of the hearing, the respondent had yet to file an inventory or any accounts for the entire ten-year period during which he had served as conservator. The court declined to permit the respondent to resign as conservator until his accounts were allowed by the court. The respondent was ordered to file his account(s) by January 31, 2000.

The respondent filed his inventory on or about October 23, 1999, but did not file any accounts until March 3, 2000. On that date, the respondent filed eleven accounts covering the period October 20, 1989 through December 31, 1999. The respondent filed a twelfth account for the period of January 1, 1990 through December 31, 1990 on or about April 3, 2001. A thirteenth account covering the period of January 1, 1991 through July 31, 2001 was filed by the respondent on or about October 31, 2001. The accounts filed by the respondent were inaccurate. The respondent did not correct the inaccuracies and did not file final accounts.

On or about December 28, 2001, the co-conservatorís attorney filed a motion for appointment of a guardian ad litem to examine the respondentís accounts. A guardian ad litem was appointed on or about January 23, 2002. The guardian ad litem reported to the court on September 11, 2002, that each of the accounts filed by the respondent were replete with arithmetic and informational errors, lacked proper documentation as to income expenses and assets, and did not include a ďSchedule CĒ listing the wardís assets and their values as held by the conservator as of the end of each accounting period.

On October 3, 2002, the court ordered the respondent to deliver all of his account records to the guardian ad litem and ordered the guardian ad litem to amend the accounts as needed. The court further ordered that the guardian ad litemís fee and costs were to be shared equally by the ward and the respondent.

Upon review of the respondentís records, the guardian ad litem discovered that the ward had not received social security benefits since 1990. Upon learning of the improper cessation of the wardís benefits, the respondent wrote to the Social Security Administration and requested that the benefits be restored. The co-conservator then followed up on the matter with the Social Security Administration. The wardís monthly social security benefits were restored in June 2003, and the co-conservator subsequently recovered the wardís retroactive benefits from social security. The Social Security Administration paid a lump sum of $39,013.50 on or about September 25, 2003 and another lump sum in the amount of $63,318.10 in retroactive benefits on or about November 3, 2003.

The co-conservator was also successful in recovering $49,073.88 in Putnam Option Income Trust II Account funds that the respondent had allowed to escheat to the Commonwealth.

The guardian ad litem amended the respondentís inventory and thirteen accounts, prepared two additional accounts covering the period from January 1, 2002 through September 30, 2003. The respondent reviewed and signed them and they were filed with the court on or about July 12, 2004. The accounts were allowed by the court on November 3, 2004, and the respondentís motion to resign as conservator was allowed.

On or about February 4, 2004, the guardian ad litem sent the respondent and the co-conservator each a bill in the amount of $14,756.25, representing one-half of his total fee of $29,512.50. The respondent sent the guardian ad litem a check in the amount of $15,000.00 on or about February 24, 2004.

By failing to timely file an inventory, failing to file accurate and timely accounts, failing to collect social security benefits on behalf of his ward, allowing one of the wardís accounts to escheat to the Commonwealth, and thereafter failing to take timely and adequate action to retrieve the escheated funds, the respondent violated Canon Six, DR 6-101(A) (1), (2) and (3) as to conduct between October 1989 and December 31, 1997 and violated Mass. R. Prof. C. 1.1 and 1.3 as to conduct on and after January 1, 1998.

The respondent has been a member of the bar since 1971. He has no history of discipline. In aggravation, the respondentís lack of diligence as to his duties as conservator occurred over a period of more than ten years and could have resulted in substantial financial loss to the wardís estate but for the intervention of a subsequently appointed co-guardian and a guardian ad litem. In mitigation, the respondent is suffers from an auto-immune condition that affects his energy level and his ability to focus on complex and detailed matters. The respondentís medical problems began in 1997 and 1998, and contributed to the respondentís ongoing failure to pay adequate attention to his fiduciary responsibilities in this matter. The respondent is receiving medical treatment for his condition and has reduced his workload. He now has only a small part-time law practice. He has limited his law practice to estate planning and uncontested matters and has entered into a peer review monitoring agreement with bar counsel and another attorney.

The respondent received a public reprimand for his conduct in this matter, subject to the terms and conditions set forth in a two-year probation agreement executed by the parties.

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

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