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Commonwealth of Massachusetts

NO. PR 99-11



IN RE: JOAN A. CARROLL

SUMMARY


In early February 1988, the respondent's aunt consulted the respondent about her estate. Among other things, the respondent advised her aunt that if she died without a will, all of the property in her estate would go to the aunt's heirs-at-law. The respondent was one of five heirs-at-law. The aunt directed the respondent to draft a will that left her house to a neighbor, and everything else to the aunt's nephew and niece who were not heirs-at-law.

On February 6, 1988, the respondent sent her aunt a draft of her will. The will left the aunt's house to her neighbor and the remainder of the estate to the aunt's nephew and niece. The will named the nephew as the executor of the estate. The aunt never executed the will.

In June 1988, the aunt opened up a joint bank account at Hyde Park Savings Bank with her nephew. On December 19, 1988 and August 16, 1990, the aunt directed Boston Five Cents Savings bank to change the name on two accounts she had with the bank from accounts solely in her name to accounts that identified her as "trustee" for her nephew.

In June 1991, the aunt was a patient at the Beth Israel Hospital. The respondent and the nephew then discussed as relatives the need to continue to pay the expenses on the aunt's house. The nephew told the respondent about the accounts at Hyde Park and Boston Five. The respondent suggested that funds be withdrawn from the Hyde Park account to pay the expenses related to the aunt's house. The respondent also suggested that a guardian be appointed to take care of the aunt's affairs.

On June 24, 1991, the nephew withdrew $3,000.00 from the Hyde Park account and opened a checking account in his name only. He paid all the expenses related his aunt's property from this account.

In early October 1991, the nephew retained the respondent to prepare a petition to have him and his mother, the aunt's sister, appointed the aunt's guardians. In late November 1991, the nephew and his mother signed the guardianship petition that had been prepared by the respondent.

On December 23, 1991, before the respondent could file the guardianship petition, the aunt died. In addition to her house, there was at least the potential for questioning whether or not the aunt's accounts held jointly or in trust for her nephew should be considered part of the estate.

Shortly after the aunt's death, her nephew retained the respondent to prepare a petition to have him appointed the administrator of his aunt's estate. The respondent advised the nephew that she would also prepare a petition to have him appointed the special administrator of the estate.

When the respondent agreed to represent the nephew, she did not consider whether the nephew was an appropriate person to act as administrator or special administrator of the estate given the estate's potential claim to the joint and trust accounts. The respondent also failed to appreciate that she was a likely witness to her aunt's intentions regarding the bank accounts. Finally, the respondent failed to appreciate that the exercise of her professional judgment would or reasonably might be affected by her own personal and financial interests as an heir-at-law.

On or about December 24, 1991, the respondent drafted a petition to have the nephew appointed the special administrator of the estate, along with a petition for his administration of the estate. The respondent signed her assent to the petitions and obtained the assents of two other heirs-at-law.

By letter dated January 17, 1992, the nephew discharged the respondent as his counsel. Thereafter, the respondent ceased all activities on behalf of the nephew with respect to the estate.

Shortly after being discharged by the nephew, the respondent retained counsel who petitioned the probate court to have the respondent appointed the special administratrix and administratrix of the aunt's estate. The respondent was not a suitable person to be appointed to either position because she had a conflicting personal interest that would or might reasonably interfere with her ability to perform her official duties and because she was a likely witness if there was a dispute over the bank accounts.

By undertaking to represent the nephew when her personal and financial interests conflicted with his interests, without full disclosure and without the nephew's consent, the respondent violated Canon Five, Disciplinary Rule 5-101(A) (except with consent after full disclosure, a lawyer shall not accept employment where her judgment might be affected by her own interests). By undertaking to represent the nephew when she knew or it was apparent that she might be called as a witness to the aunt's intentions regarding the ownership of the joint and trust accounts, the respondent violated Canon Five, Disciplinary Rule 5-101(B) (a lawyer shall not accept employment where the lawyer will be a witness). By petitioning the probate court to be appointed the special administratrix and administratrix of the aunt's estate when she was not qualified by virtue of her obligations to her aunt and her conflicting duties to herself as an heir-at-law and to the other heirs-at-law of the estate, the respondent violated Canon One, Disciplinary Rule 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice).

On August 31, 1999, the parties submitted a stipulation to the Hearing Committee wherein the respondent agreed to the truth of the allegations set forth in the petition for discipline. The parties recommended that the respondent receive a public reprimand. On December 13, 1999, the Board of Bar Overseers voted to administer a public reprimand to the respondent.



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