A Brother ‘s Complaint Leads To A Reciprocal Suspension

A reciprocal sanction of a six-month suspension without automatic reinstatement has been imposed by the New York Appellate Division for the First Judicial Department

Respondent was administratively suspended in Massachusetts in 2000 for failure to pay required registration fees and again in 2009 for failure to cooperate with a disciplinary investigation of an unrelated matter. Neither administrative suspension has been lifted and respondent remains suspended in Massachusetts.

In March 2010, respondent was publicly reprimanded by the Connecticut Superior Court arising from the 2009 disciplinary proceeding in Massachusetts and based upon his using client funds for his own personal purposes, as well as accepting a loan from a client without proper documentation and conflict waiver. By order dated May 29, 2012, this Court, pursuant to former Rule 603.3, imposed reciprocal discipline and publicly censured respondent (97 AD3d 117 [1st Dept 2012]).

By order entered March 28, 2017, the Supreme Judicial Court of the Commonwealth of Massachusetts for Suffolk County suspended respondent for six months for professional misconduct committed during the course of a probate proceeding.

The probate case

Respondent’s discipline in Massachusetts arises from misconduct he committed in connection with a probate proceeding related to the settlement of his late father’s estate. In or about 2007, the Probate Court for Suffolk County appointed respondent executor of his father’s estate. Respondent and his brother were the only beneficiaries of the estate. As executor, respondent was required to file both an inventory and an accounting of the estate, which he failed to do, despite repeated demands from his brother.

In September 2008, several months after the accounting was due, the court ordered respondent to file the inventory and accounting by November 28, 2008 but respondent failed to do so. In or about February 2009, respondent’s brother moved to have him held in contempt. Respondent failed to appear at the March 12, 2009 contempt hearing and he was found in contempt for failing to comply with the court’s order directing him to submit an inventory and accounting for the estate. He did not appeal this finding. Respondent was directed to pay $500 in attorney’s fees and fined $50 per day until the inventory and accounting were filed. The contempt hearing was continued on May 7, 2009 but respondent again failed to appear on that date and the court issued a capias and a further judgment of contempt by which respondent was ordered to pay $2,500 forthwith. The $50 per day fine remained in effect. The contempt hearing was continued on July 9, 2009 and again, respondent failed to appear. He was again found in contempt and ordered to pay attorney’s fees of $1,000 and $5,500 in sanctions to his brother and a second capias was issued for his arrest.

In or about December 2009, respondent prepared an inventory, a proposed accounting which he demanded his brother’s attorney assent to within seven days, absent which he would file them with the court, and paid $500 in partial payment of the attorney’s fees awarded under the contempt judgments. Counsel required more time to review both and raised questions about certain items in the proposed accounting. Respondent did not respond to this inquiry and on December 29, 2009, he filed the inventory but not the proposed accounting, which, according to the Hearing Officer was improper in form, inaccurate and incomplete.

In September 2013, after learning that his brother filed a request for investigation with the Massachusetts Bar Counsel, respondent filed what he styled as a “revised first and final account” for his father’s estate and a petition for an order of complete settlement, in response to which his brother filed objections. In April 2014, respondent resigned as executor of his father’s estate. At the time of the disciplinary proceedings, no successor had been appointed, the estate had not been fully settled, respondent had not made any further payments toward the attorney’s fees or sanctions imposed by the probate court, and the contempt findings against him had not been purged.

(Mike Frisch)