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Commonwealth of Massachusetts

Public Reprimand No. 2008-20



PHILIP FILOSA

Order (public reprimand) entered by the Board October 10, 2008.

SUMMARY1


The respondent received a public reprimand for preparing a will for a testator that gave him a substantial bequest.

The respondent and the testator met socially in late 1997 or early 1998 and became friends. At the time, the testator, a widow, was eighty-three years old. She and the respondent enjoyed a close personal relationship as good friends. In October 2002, the testator asked the respondent to prepare a will for her and to take charge of her personal, business, and health matters. The respondent and the testator discussed a will, a health care proxy, a power of attorney, and a living will. The respondent agreed to be the testatorís health care agent and attorney-in-fact.

The testator advised the respondent that she had no living relatives. She gave him a list of specific bequests for her will indicating essentially that she wanted to leave $1,000 each to several friends and $5,000 to a retired reverend. She also wanted to leave specified items of personal property to some of her friends and her remaining tangible personal property to a favorite thrift shop.

The testator told the respondent that she wanted to leave the rest of her estate to him, because he had been of great help to her as a legal, financial, and personal advisor. The respondent advised her to contact another attorney to draft the will if that was what she wanted to do. However, the testator did not wish to hire another lawyer. The respondent agreed to draft the will for the testator, if she agreed to have another attorney of her choosing review the will with her. This she agreed to do.

The respondent drafted the will according to the testatorís wishes making himself the beneficiary of the remainder of the estate. The testator then chose to review the will drafted by the respondent with the respondentís law partner at the time. On October 18, 2002, the testator met with the partner alone and discussed the will with him. The testator indicated to the partner that she understood the terms of the will and wished to sign the will. The partner believed from this conversation that the testator understood the terms of the will, was competent to execute it, and was not subject to any undue influence.

Immediately following the testatorís meeting with the partner, she, the partner, the respondent, and the respondentís adult son met at the testatorís bank where the testator signed the will along with a health care proxy, durable power of attorney, and living will. Her signatures were duly witnessed and notarized.

The testator died on December 2, 2003. On December 12, 2003, the respondent, the named executor, filed a petition for probate of the will and for appointment of himself as executor. On March 5, 2004, the respondent was appointed executor. In January 2005, the respondent filed an inventory and a first and final account reflecting the value of the deceasedís personal estate to be $177, 019 and a bequest to the respondent of $154,475. All interested persons consented to the first and final account filed by the respondent. On May 26, 2005, the probate court issued a judgment allowing the first and final account filed by the respondent.

By preparing an instrument under which the respondent received a substantial bequest from a person to whom he was not related, the respondentís conduct was in violation of Mass. R. Prof. C. 1.8(c).

The respondent was admitted to the bar of the Commonwealth in 1974. This matter came before the Board of Bar Overseers on the partiesí stipulation of facts and rule violations and an agreed recommendation for discipline by public reprimand. On September 8, 2008, the Board voted to accept the stipulation and impose the recommended discipline.


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



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