The House Was Not A Home

The full Massachusetts Supreme Judicial Court affirmed the decision of a single justice in a bar discipline matter to impose an 18-month suspension with the requirement of a petition for reinstatement

The cases from which the present disciplinary proceedings arise had their origin in 2014, when the client's husband died and she was served with a notice to quit the house in which she was living on Parmenter Road in Wayland (property). The title to the property was in the husband's name, and many years before his death, he deeded it to himself and four of his daughters (daughters) from a previous marriage as joint tenants with a right of survivorship. The client was unaware of this deed until after her husband died. In December 2014, she was served with the notice to quit.

The client needed an attorney, and the respondent, a neighbor and acquaintance, agreed to represent her. There was no written fee agreement between the respondent and the client. Rather, the respondent advised the client verbally that while he would not charge her for the recovery of her interest in the property, he would "probably charge her [one-third] of any recovery above" that value. The respondent also communicated at times with the client's son-in-law, an attorney licensed in another State. The respondent's advice to the client, which was also communicated to her son-in-law, was that the client had ownership rights in the property pursuant to the spousal elective share statute, G. L. c. 191, § 15, and that under the Homestead Act, G. L. c. 188, the client was entitled to a life estate in the property.

The daughters sued and prevailed; Respondent filed an appeal.

Respondent filed a separate suit on the rejected theory; the daughters sued seeking use and occupancy payments.

On December 14, 2016, the three appeals were consolidated in the Appeals Court. The respondent did not file a brief on the client's behalf, and on February 27, 2017, the Appeals Court dismissed the client's consolidated appeals for lack of prosecution.  Afterward, the Framingham Division of the District Court issued execution of its judgment for possession of the property. The client received an eviction notice in early April.

The respondent advised the client to file for bankruptcy, which would automatically stay the eviction. The respondent told the client's son-in-law that this would also permit him to relitigate before a Federal bankruptcy judge the issues he had lost in the State court cases.

Eventually eviction was ordered; Respondent pursued his rejected theories and eventually was terminated

The First Circuit issued a judgment on January 29, 2020, dismissing the client's appeal, which it found "clearly moot." The court further concluded that sanctions, pursuant to Fed. R. A. P. 38, were warranted against the respondent, who continued to represent that he was the client's attorney in this matter. In an order dated August 21, 2020, the First Circuit ordered the respondent personally to pay sanctions in the amount of $31,635.25. On December 15, 2021, the court found the respondent in contempt for failure to pay. The order permitted him to purge the contempt by certifying payment within fourteen days, which he did not do. When testifying before the hearing committee in this matter, the respondent explained that he had no intention of ever paying the sanctions.

The court here

Contrary to the respondent's arguments, as described supra, the record contains sufficient evidence to establish that he failed to provide a written fee agreement for his contingent fee arrangement, that he failed to prosecute the client's appeals in the Appeals Court, that he failed to move to stay the order of the bankruptcy court lifting the automatic stay despite an order issued by that court specifically instructing him how to proceed with respect to that request, that he asserted frivolous arguments and pursued frivolous appeals in the Federal Bankruptcy Court, the Federal District Court, and the First Circuit, that he continued frivolously to assert in State court proceedings arguments that had been decided against him, that he failed to keep his client apprised of the matters he was litigating on her behalf, that he knowingly disobeyed the order of the small claims court to file an affidavit proving that he still represented the client, that after the client terminated his representation, he failed to withdraw from his appeal in the First Circuit or to inform that court that he no longer represented the client, that he failed to withdraw from the Superior Court use and occupancy case, and that he refused to pay the sanctions that the First Circuit ordered him to pay.

We conclude that the respondent has failed to meet his burden pursuant to rule 2:23, and we discern no error in the order issued by the single justice.

Sanction

For all the foregoing reasons, we agree with the single justice that it was an appropriate sanction and not "markedly disparate from judgments in comparable cases" to suspend the respondent for a term of eighteen months from practicing law in the Commonwealth and, further, to require that he petition for reinstatement pursuant to S.J.C. Rule 4:01, § 18. See Matter of Slavitt, 449 Mass. at 30, quoting Matter of Finn, 433 Mass. at 423. We therefore affirm the order of the single justice.

(Mike Frisch)