Friday, April 20, 2018

Attorney's Appeal Gets Six More Months Suspension

An appeal of a single justice's suspension backfired on an attorney, per the full Massachusetts Supreme Judicial Court

The respondent, Robert C. Moran, appeals from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), suspending him from the practice of law for nine months. We vacate the order and remand the case for the entry of an order suspending the respondent from the practice of law for fifteen months.

The misconduct involved the estates of two elderly now deceased clients.

Bar counsel filed an amended five-count petition for discipline with the board alleging multiple acts of misconduct in connection with the respondent's handling of the affairs of two elderly clients, both of whom are now deceased. Two counts alleged that the respondent charged excessive fees; that he failed to inform his clients of fees for services rendered and fee withdrawals; that he held the clients' funds in nontrust accounts; and that he drafted testamentary instruments for both clients that included substantial testamentary gifts to himself. Two other counts concerned the respondent's conduct as executor for the same clients' estates. They alleged that the respondent failed to render diligent and competent services; that he charged and collected excessive fees; that he failed to hold estate funds in segregated interest-bearing accounts; that he negotiated and withdrew estate funds before his appointment as executor; and that he intentionally misrepresented, under oath, the amount of estate assets in a probate court filing for one estate.  The fifth count charged misconduct in connection with trust accounts and trust funds.  The respondent answered and asserted certain facts in mitigation.

The court rejected a number of evidentiary and due process claims.

A final observation: even if the board's characterization of some of the particular services rendered by the respondent as legal or nonlegal may be debatable, much of it is not. There can be no denying, for example, that services such as snow shoveling, moving and house cleaning, shopping, and making funeral arrangements are not legal services.

Sanction

 The respondent here knowingly misrepresented estate assets on an inventory he filed, under oath, in the probate court, the effect of which was to obscure from the probate court's consideration payments the respondent had made or intended to make to himself and others. An intentional misrepresentation to a court typically warrants a suspension of at least one year...

 In addition, the respondent engaged in other serious misconduct. He charged and collected   from two clients and, after their deaths, from their estates. He did so both as a lawyer and an attorney-in-fact acting under a durable power of attorney during the lifetimes of his clients, and as an attorney and executor after their deaths. Considered individually, any one of those actions would warrant a public reprimand.

The bad news 

The court system depends on the integrity of attorneys who appear before it. Considering the substantial misconduct in this case, including intentional misrepresentation to the probate court, charging and collecting clearly excessive fees, lack of diligence in the probate of two estates, as well as the other substantial violations of the rules of professional conduct, together with the aggravating factors discussed above, we conclude that a term suspension of fifteen months is appropriate.

(Mike Frisch)

 

https://lawprofessors.typepad.com/legal_profession/2018/04/an-appeal-backfired-on-an-attorney-per-the-massachusetts-supreme-judicial-court-the-respondent-robert-c-moran-appeals-fr.html

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