Sunday, November 12, 2017
The Massachusetts Supreme Judicial Court imposed a six-month suspension for misconduct in two matters.
From the Board of Bar Overseers summary describing one matter
the respondent was retained by the client to review and revise her estate plan and to assist her with her financial matters. The respondent did not communicate to the client in writing the scope of his representations or the basis or rate of his fee. The respondent proceeded to prepare a durable power of attorney for the client, naming himself as the client’s attorney-in-fact; a will naming himself as the client’s personal representative; and a health care proxy.
The client gave the respondent $70,000 to be used by him to pay the client’s bills. The respondent did not maintain these funds in a client trust account. Instead, he deposited the money in his business account.
The respondent disbursed a total of $30,073.50 for purposes of paying the client’s expenses, including her funeral expenses after she died. The respondent also withdrew a total of $39,180.94 to pay his legal fees. Because he did not keep accurate records of his client’s funds, the respondent failed to promptly pay over the balance, $745.56, to the estate’s beneficiaries or the special representative, who was appointed after the commencement of a will contest action in the probate court.
Throughout the representation, the respondent charged his client at his legal rate of $325 per hour for all services rendered, including non-legal services such as caring for the client’s pets, accompanying the client to doctor’s appointments, and attending the client’s funeral. On six occasions, the respondent withdrew fees from his client’s funds for the purpose of paying legal fees he had not yet earned. The respondent did not each time he withdrew fees, deliver to the client in writing an itemized bill or other accounting showing the services rendered, the amount and date of the withdrawals and a statement of the balance of the client’s funds remaining.
By the end of the representation, the respondent had earned all of his fees that he had collected. The respondent has also returned all funds due to the estate and its beneficiaries.
the respondent agreed to represent a client in a personal injury matter in return for a fee of one-third of all amounts collected. The respondent either failed to obtain his client’s written agreement to a contingent fee arrangement or he failed to keep a copy of the agreement for a period of seven years after the conclusion of the representation.
The client agreed to a settlement in the amount of $27,000. The respondent received a check from the insurer in the amount of $24,990.07, which represented the settlement amount less $2,009.93 that was deducted to pay Medicare and MassHealth liens. These funds were deposited into the respondent’s business account and not maintained in a client trust account.
Because the client was homeless, the respondent did not pay the client the monies due her in one lump sum. Instead, the client would contact the respondent to request a disbursement when she needed money and the respondent would then pay her. The respondent also withdrew his legal fee in installments over time. The respondent did not deliver to the client an itemized bill or other accounting showing the services rendered, the amount and date of the withdrawals and a statement of the balance remaining in the client’s account.
The respondent failed to keep accurate records of the client’s funds, the disbursements he made to her and the withdrawals he took to pay his fees. Accordingly, he could not account for $1,500 due the client. The respondent, however, has since returned all monies due the client.