A “Dismaying Array of Violations” By Attorney With “Sincere And Demonstrated Commitment To His Clients”

The Massachusetts Board of Bar Overseers has issued a Hearing Report that recommends a 15-month suspension for misconduct in multiple matters

Under each count of the present petition for discipline, Bar Counsel has established one nor more violations warranting a term suspension of substantial length: under count one, charging and collecting clearly excessive fees (text at note 23, above) and misuse of unearned advance fees, with deprivation (text at notes 26, 27, above); under count two, contracting for excessive and illegal fees (text at note 29, above) and misuse of unearned advance fees by treating them as having been earned upon receipt (text at note 30, above); and, under count three, negligent misuse of trust funds (text at note 36, above) and, in one case, intentional misuse of trust funds (text at notes 37, 38), both without deprivation.

Any one of those violations might well have merited a term suspension…

Moreover, we are presented with a dismaying array of violations of rules concerning communication with a client (count one), rules and regulations prescribing the form and substance of fee agreements (count two), and rules governing accounting for trust funds and prohibiting commingling (count three). Those violations taken separately would warrant a public reprimand, but the sheer volume of violations cumulatively warrants a suspension.

A unique case

In this case, the respondent’s multiple misuses of retainers and advance fees were more negligent than intentional. His fee agreements did not expressly prohibit him from taking advance fees as earned, although the contract terms did violate rule 1.5(a)’s prohibition on clearly excessive fees.

The respondent’s many forms of misconduct were significantly mitigated by a sincere and demonstrated commitment to his clients going beyond what would ordinarily be expected of an attorney; a willingness to make his valuable services available to clients who were often in dire need of them, sometimes at the expense of his firm’s profitability; and a commitment to fairness coupled with an impressive command of his field of legal practice.

In this unique case, having sought to balance all the foregoing considerations, we recommend a suspension of fifteen months. We believe the respondent must be required to complete the reinstatement process before he can be permitted to resume the practice of law.

(Mike Frisch)