Sanction: Reprimand And Retire By The End Of 2019

A Massachusetts attorney agreed to a public reprimand conditioned on his retirement from practice for a series of conflicts of interest as summarized on the Board of Bar Overseers web page. 

The respondent engaged in conflicting representations and related violations arising out of a real estate transaction and a guardianship and conservatorship petition not involving self-dealing or fraud.

Respondent was counsel to a bank. The nephew of a disabled aunt sought to remove her as owner of her residential property

Prior to the closing, the nephew asked the respondent to prepare a deed transferring the property from the nephew and aunt as joint owners to the nephew as sole owner. Although preparing the deed was not within the scope of the respondent’s services as counsel for the bank, he prepared the deed for the nephew without charge per the nephew’s instructions. The deed did not reserve a life estate interest for the aunt and recited a consideration of $1 to the aunt for transferring her one-half interest to the nephew. The nephew brought his aunt to the respondent’s office, and the respondent notarized their signatures on the deed. The respondent, who had never met the aunt before, only spoke to the aunt briefly. He did not explain the transaction to her and held himself out as disinterested. Although he knew that the aunt was not represented by counsel and reasonably should have known that she misunderstood his role in the matter, the respondent did not make reasonable efforts to correct the aunt’s misunderstanding, in violation of Mass. R. Prof. C. 4.3.

As bank’s counsel at the December 11, 2015 refinance closing, the respondent had the nephew sign a loan application and occupancy affidavit. The nephew stated on the loan application that he intended to use the property as his principal residence. The respondent notarized the occupancy affidavit even though the nephew failed to answer a question declaring whether he intended to use the property as his principal residence. After the closing, when respondent learned that the nephew did not live at the property and was not intending to make the property his primary residence, the respondent did not disclose this information to the bank.

Other relatives sought a conservatorship for the aunt

The nephew paid the respondent a $7,500 flat fee that day to represent his mother, grandmother, the proposed ward’s son, and the proposed ward. Before accepting payment of his fee from the nephew, the respondent did not seek the informed consent of the proposed clients, in violation of Mass. R. Prof. C. 1.8(f)(1).

Things unravelled but he continued on

In March and April of 2016, the respondent agreed to represent the nephew in serving a notice of no trespass prohibiting the proposed guardian/conservator from entering the property where the proposed ward lived. The respondent also agreed to represent the nephew in seeking to evict the proposed ward’s brother who was sharing an apartment with her at the property, and in opposing a restraining order obtained by the brother after a confrontation with the nephew at the property. The respondent undertook his representation of the nephew in these matters which were opposed to the proposed ward’s interests while simultaneously purporting to represent the proposed ward in the guardianship and conservatorship proceedings, without first obtaining the proposed ward’s informed consent confirmed in writing, in violation of Mass. R. Prof. C. 1.7 and 1.16(a)(1).

At a court hearing in April 2016, the respondent first learned that the nephew had allegedly lied to the proposed ward in the fall of 2016 to get her to sign the deed transferring her interest in the house to him. Shortly thereafter the respondent stopped representing the nephew in any legal matters.

But

On about July 27, 2016, the proposed ward notified the respondent that she was discharging him as her counsel. The respondent did not withdraw his appearance for the proposed ward in the guardianship and conservatorship matters.

On December 2, 2016, the proposed ward’s mother filed assents to the petitions for guardianship and conservatorship. The respondent did not promptly seek to withdraw his appearance on behalf of the mother as attorney-in-fact for the proposed ward in opposition to the guardianship and conservatorship.

Sanction

On April 30, 2019, the parties filed an amended stipulation of the parties and joint recommendation for a public reprimand, conditioned on the respondent’s immediate cessation of taking on new client matters and his agreement to close his law practice and assume retirement status by no later than December 31, 2019. On May 13, 2019, the Board voted to accept the amended stipulation of the parties and impose a public reprimand.

(Mike Frisch)