The Handyman

A justice of the Massachusetts Supreme Judicial Court indefinitely suspended an attorney for misuse of entrusted funds.

In 2008, the niece of Gaynell Hayes, an elderly testatrix, contacted the respondent and asked him to assist her family with respect to certain transactions her aunt had entered into concerning an apartment building that she owned. Specifically, Hayes had revised her will to benefit a local handyman and to remove as beneficiaries two family members and a close friend named in a prior will; had given the handyman a power of attorney; and had transferred her apartment building to him for $100. Within a month of the transfer from Hayes, the handyman accepted an offer.of approximately $1.4 million for the building. Hayes’s 2008 will also named the handyman as a· coexecutrix, while removing Hayes’s niece from that role, which she had held under the terms of Hayes’s 2004 will.

The respondent immediately took action to reverse the course of these transactions. He met with Hayes and had her sign a power of attorney in favor of her niece, as well as an affidavit that she had no memory of having sold her building to the handyman. The respondent filed a civil action alleging undue influence, and succeeded in obtaining a temporary restraining order prohibiting the handyman’s sale of the building.

The respondent also contested the handyman’s petition for guardianship over Hayes and sought instead to have Hayes’s niece appointed as guardian. The respondent was successful in contesting the handyman’s guardianship, but a Probate and Family Court judge appointed an independent attorney as Hayes’s guardian. The guardian requested and received permission to sell the building; he made the sale in December, 2008, and held the proceeds in escrow pending the outcome of the complaint alleging undue influence.

The attorney represented the anti-handyman interests for a contingent fee. He did well by his clients.

The hearing committee commended the respondent for this work, stating that “the respondent’s leqal·work throughout this period was thorough and effective, and we note that he achieved an excellent result for his clients.”

The favorable result was diminished by the misuse of settlement proceeds

As the hearing committee and the board correctly stated, the presumptive sanction for an attorney’s intentional use of client funds, with the intent permanently or temporarily to deprive the client of the funds, or where actual deprivation results, regardless of the attorney ‘s intent, is indefinite suspension or disbarment.

The attorney’s restitution was the factor that led to suspension rather than disbarment. (Mike Frisch)