Wednesday, May 31, 2023

The White Knight

An (appealable) recommendation of the Massachusetts Board of Bar Overseers

For the respondent’s serial neglect and frivolous litigation in a single, protracted matter, a hearing committee has recommended a suspension of his law license for 18 months. The underlying matter involved a dispute between the respondent’s client and her step-children, who evicted her from her home after the death of her husband. After failing to file an appeal brief in the original case and the entry of a final judgment against his client, the respondent engaged in a multi-front attack on the judgment in state and federal courts, repeating the same arguments that he was precluded from making. He continued to litigate on behalf of his erstwhile client even after she terminated him. The committee concluded that the respondent violated Rules 1.1, 1.4, 3.1, 3.4(c), 1.16, and 8.4(d) and (h). He also violated Rule 1.5 due to the absence of a written fee agreement with the client. The salient facts were established by the board chair’s allowance of bar counsel’s Motion for Issue Preclusion. The committee found several aggravating factors and none in mitigation. In their entirety, we adopt the hearing committee’s findings, conclusions, and recommendation.

The deceased had deeded his home to his daughters by a prior marriage by joint tenancy with rights of survivorship; his wife was unaware of the transfer

There apparently was no love lost between Teodora Caraker and her late husband’s four daughters. At the end of his life, Edward was hospitalized and then discharged to the care of one of his daughters, with no notice to his wife. Teodora was not told of her husband’s death until about one week after he died and after the funeral. At the same time as she learned this news, she was ordered to vacate the home she had lived in with Edward for three decades. The hearing committee found that the daughters harassed Teodora physically and tried to intimidate her.

In the midst of this trauma, Teodora turned to the respondent, who lived on her street in Wayland. The respondent had been a member of the Massachusetts bar since 1974 and the federal courts in Massachusetts since 1975. Teodora saw the respondent as her “white knight.” The respondent agreed to represent Teodora, but did not provide a written fee agreement. According to the hearing committee’s findings, the respondent advised Teodora that he would charge her one-third of any recovery above the value of her interest in the home.

The Board recounts the extensive litigation and finds both neglect and frivolous claims

Turning to the second category of misconduct, there is no doubt that the respondent abused the court system through myriad frivolous litigations, in violation of Rules 3.1, 8.4(d) and 8.4(h). The misconduct is narrated above and need not be repeated ad nauseum. We do not disparage the respondent’s zealous advocacy on behalf of a client whom he viewed (rightly or not) as the victim of her step-daughters’ cruelty and mistreatment. However, the line between zealous advocacy and irresponsibility is not difficult to draw. Once the Massachusetts Appeals Court dismissed the consolidated appeals, the opportunity to argue that the Framingham District Court judgment was “void” for “want of subject matter jurisdiction” was over and done. It was finished. This was true not just for the federal Bankruptcy Court, Federal District Court and U.S. Court of Appeals, but the further litigation in Superior Court concerning Teodora’s contempt and the daughters’ petitions for legal fees and costs. Continuing to advance arguments that were clearly barred by issue preclusion is frivolous and abusive.

Proposed sanction

We agree with the hearing committee’s recommendation of a suspension of the respondent’s law license for eighteen months. A suspension of that length is consistent with the sanctions described in the prior paragraphs. It is on the longer end of the scale, which is appropriate in light of the exhaustive and exhausting nature of the misconduct. Like the hearing committee, we recommend that, whatever sanction the Court imposes, the respondent be required to petition for reinstatement pursuant to S.J.C. Rule 4:01, § 18.

(Mike Frisch)

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