Tuesday, January 9, 2018

In Deed

The Rhode Island Supreme Court rejected the proposed 60-day suspension of its Disciplinary Board and censured an attorney

The relevant facts are undisputed. For many years the respondent has provided legal representation to the Newport Bay Club Home Owner Association, Inc. (hereinafter referred to as NBC). NBC is a not-for-profit corporation incorporated under the laws of the State of Rhode Island that is the managing entity of a time-share development and commercial property known as the Newport Bay Club and Hotel located on Thames Street in Newport, Rhode Island. Time-share units are sold by NBC to owners who purchase vacation property for set periods of time, usually in units of one-week duration. Besides the purchase price, unit owners were assessed annual maintenance fees by NBC. If an owner failed to pay the assessed maintenance fees, NBC had the right to foreclose on the delinquent unit owner’s interest in the property.

Among the legal services routinely rendered by the respondent to NBC was the collection of delinquent fees and, when requested by the Board of Directors of NBC, foreclosing on owner interests. In the ordinary course, acting pursuant to a statutory power of sale, the respondent would prepare a foreclosure deed to be executed by a duly authorized officer of NBC; that execution would be witnessed by a notary public, and when properly executed the foreclosure deed was recorded in the land evidence records for the City of Newport.

However, the respondent did not follow the appropriate course of conduct in providing these legal services to NBC. Instead, he engaged in a persistent pattern of signing the name of the President of the NBC Board of Directors to the foreclosure deeds and acting as the notary witness to that signature. The respondent then caused the falsely executed documents to be recorded.

The conduct of the respondent came to light during the course of litigation between NBC and a former employee/manager of NBC. The respondent self-reported his conduct to Disciplinary Counsel. The respondent subsequently prepared and caused a confirmatory deed to be properly executed and recorded to clear any title issues caused by his recordation of the improperly executed deeds containing the false notary affidavit clauses. Neither NBC nor any of the time-share owners whose ownership interests had been foreclosed upon incurred any financial harm due to the respondent’s conduct.

The court concluded that suspension was not required.

We believe this case presents unique circumstances which cause us to reduce the level of discipline recommended by the board. We find the respondent’s lengthy, unblemished history, coupled with his heartfelt remorse, warrant a departure from our prior decisions in similar circumstances. We do not condone the respondent’s conduct. However, we also do not believe, in view of the totality of the circumstances of this case, that his suspension from the practice of law is necessary to protect the public.

(Mike Frisch)


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