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Commonwealth of Massachusetts

Public Reprimand No. 2007-17



CHARLES F. PROCTOR

Order (public reprimand) entered by the Board June 21, 2007.

SUMMARY1


The respondent received a public reprimand for a conflict of interest that arose from his preparation, for a person who was not a relative, of a will that benefited the respondent and his mother.

Beginning in 1966, the respondent and his parents had as neighbors a husband and wife who had no children. The respondentís parents had known the wife (the testatrix) since 1945. The two families developed a very close relationship. The testatrix was particularly close to the respondentís mother, on whom she relied over the years for assistance and guidance.

The respondentís father practiced law for many years in Oxford, Massachusetts, with his mother as an assistant in the law office. The testatrixís husband died in early 1989. After her husbandís death, the testatrix executed a durable power of attorney prepared by the respondentís father and naming the respondentís mother as her attorney-in-fact, with the respondentís father as alternate.

In August 1991, and prior to the adoption in 1995 of former Canon Five, DR 5 108 (the predecessor rule to current Mass. R. Prof. C. 1.8(c)), the testatrix executed a will prepared by the respondentís father. The will named the respondentís mother as executor and left a bequest of $10,000 to the respondentís parents. The will contained additional specific bequests to a cousin and to two godchildren and left the residuary estate to a hospital. On the same date, the testatrix also executed a health care proxy, making the respondentís mother her health care agent with the cousin as alternate.

The respondent practiced in Connecticut and Montana before returning to Massachusetts in 1992 to join his father practicing law. By the late 1990s, the respondentís father was less active in the law practice, and by 2001, he was ill and in the process of retiring.

Commencing as of the late 1990s, and in addition to the law firmís continuing to provide legal services to the testatrix, the respondent and his mother began providing extensive caretaking services to her. These services included, among other items, assistance with paying her bills and maintaining her house.

In December 2000, the testatrixís cousin died. As a result, the testatrix confirmed to staff of the law office in June 2001 that she would need to update her will and her health care proxy. On September 7, 2001, the respondent or an associate prepared, and the testatrix executed, a new health care proxy, substituting the respondent for the cousin as alternate health care agent. The testatrix also discussed with the respondentís mother at this time her intention to make the respondentís mother the principal beneficiary of her estate and, in light of the respondentís motherís age and his fatherís illness, to make the respondent a joint beneficiary with his mother.

On January 3, 2002, the testatrix executed a durable power of attorney prepared by the respondent or a member of his staff, naming the respondent and his mother as the testatrixís attorneys-in-fact. On this date, the testatrix also discussed changing her will with the respondent and his mother.

On January 17, 2002, the testatrix was hospitalized. She was transferred to a rehabilitation facility on January 25, 2002 and released in mid February 2002.

On January 28, 2002, in the presence of the respondent, his mother, two witnesses and a notary, the testatrix executed a new will prepared by the respondent or an associate in his law firm. This will made the same specific bequests to the two godchildren who were beneficiaries under the earlier will, with the balance of the estate to the respondent and his mother or the survivor if either predeceased the testatrix. The will nominated the respondent as executor, with his mother as alternate.

The testatrix died of a heart attack on May 14, 2002. After one of her godchildren filed a complaint with bar counsel and the respondent learned of the prohibitions of Mass. R. Prof. C. 1.8(c), the respondent and his mother retained counsel and sent notice of the testatrixís death to the hospital that had been the residuary beneficiary under the prior will. The respondent declined appointment as executor.

The hospital and the godchild filed objections to the allowance of the will because the respondent had both drafted it and was named a beneficiary. On December 30, 2003, and with the approval of the Attorney Generalís office, the parties entered into a settlement and compromise agreement and the respondentís mother was appointed executor of the will.

By preparing an instrument under which the respondent and his mother received substantial bequests from a person to whom the respondent was not related, the respondent violated Mass. R. Prof. C. 1.8(c).

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The Board accepted the partiesí recommendation and imposed a public reprimand.


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



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