. CHARLES V. OLCHOWSKI
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Commonwealth of Massachusetts

Public Reprimand No. 2008-12



CHARLES V. OLCHOWSKI

Order (public reprimand) entered by the Board May 6, 2008.

SUMMARY1


On or about July 26, 2001, a resident of California visited Massachusetts and retained the services of the respondent to represent him in the sale of a house located in Massachusetts. During his visit, the client executed a warranty deed conveying the property to the buyer. The client also executed a power of attorney to the respondent permitting the respondent to act on his behalf during the closing.

Before the closing, the client informed the respondent that he had originally purchased the property with his wife as joint tenants by the entirety with the right of survivorship. The client also informed the respondent that his wife had died on April 23, 1992; her estate consisted almost entirely of property she owned with the client, and that he had never probated her estate.

Before the closing, the respondent learned from records maintained at the Franklin County registry of deeds that no estate tax lien release (form M-792) had been filed pursuant to M.G.L. 56C, §14. The respondent advised the client that no M-792 had been filed since his wife’s death and, as a result, there was a cloud on the title to the property. The respondent further advised the client that, as the seller of the real estate, he had an obligation to provide good and clear title to the buyer and that clearing title required that his wife’s estate be probated.

The respondent did not know that he needed only to file an estate tax return on behalf of the wife’s estate to obtain an M-792 and that no tax would be due unless the value of her estate exceeded $200,000 at the time of her death. The respondent also did not know that the tax lien would expire on April 23, 2002, ten years from the date of the wife’s death, by operation of law whether or not an estate tax return had been filed on behalf of the wife’s estate or an M-792 had been obtained. The respondent therefore did not advise his client of these facts.

The respondent offered to probate the wife’s estate for a fee of $5,000 to be paid from the proceeds of the closing. Given the circumstances, the respondent’s fee was clearly excessive. The client agreed to pay the respondent’s fee from the proceeds of the sale.

On or about August 31, 2001, the respondent represented the client at the closing. The respondent informed the buyer that the seller had retained his services to obtain and file the M-792. The buyer agreed to proceed with the closing.

After the closing, the respondent paid himself $5,000 as a fee to probate the wife’s estate and secure the M-792. After August 31, 2001, the respondent performed no work of substance to probate the wife’s estate or obtain or file an M-792 on behalf of the wife’s estate. On April 23, 2002, by operation of law, the estate tax lien against the estate was extinguished. The respondent did not inform his client that he had not taken any action to secure the M-792.

Sometime in 2004, the client learned that the estate tax lien had, by operation of law, been extinguished on April 23, 2002. The client attempted to reach the respondent to secure information about the tax lien and the respondent’s services. The respondent failed to respond to the client’s inquiries. By letters addressed to the respondent dated December 17, 2004, and February 7, 2005, the client demanded a refund of the $5,000 he had paid the respondent to probate his wife’s estate. The respondent failed to reply to the client’s demands.

On or about June 19, 2006, the client filed a grievance with the Office of the Bar Counsel. On or about June 27, 2006, bar counsel forwarded a request for information to the respondent. After receiving bar counsel’s correspondence, the respondent refunded the unearned fee to his client.

By failing to conduct the necessary research into whether probating the wife’s estate was required to obtain an M-792 and when the tax lien on the property would expire under law and by failing to explain the matter sufficiently to his client so that he could make an informed decision regarding the representation, the respondent violated Mass. R. Prof. C. 1.1 and 1.4(b).

By charging and collecting $5,000 for unnecessary work to clear the title to the property and by not performing any work of substance for the fee, the respondent charged and collected a clearly excessive fee in violation of Mass. R. Prof. C. 1.5(a).

By failing to take any action of substance to probate the wife’s estate, the respondent violated 1.1, 1.2(a), and 1.3.

By failing to respond to his client’s reasonable requests for information, the respondent violated Mass. R. Prof. C. 1.4(a).

By failing to return the unearned portion of the fee with in a reasonable time after his client’s request, the respondent violated 1.16(d).

The matter came before the Board of Bar Overseers on the parties’ stipulation of facts and rule violations and an agreed recommendation for discipline by public reprimand. On April 14, 2008, the Board voted to accept the parties’ stipulation 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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