Lien Times
A stipulated three month suspension has been approved by a justice of the Massachusetts Supreme Judicial Court
Beginning in 2002, the respondent provided legal services to a son and his elderly mother in an attempt to help the mother avoid foreclosure on her East Boston home. The respondent never met the mother, yet loaned her $30,000 to assist with her financial problems. In Count 1, the petition describes a series of transactions whereby the respondent acquired an ownership interest in the mother’s home without ever fully disclosing to her a description of the transaction and terms, did not advise her to seek independent counsel, and did not ever make sure she understood the import of the documents. This conduct violated Mass. R. Prof. C. 1.7(b), 1.8(a), 1.1, 1.2(1), 1.3, 1.4(a) and (b), 8.4(c) and 8.4(h).
Count 2 concerned the respondent’s attempts to defeat a MassHealth lien. The mother had received $43,673.80 in medical assistance benefits. After her death in 2008, the respondent received a notice from the Social Security Administration asking about the ownership of the property. He wrote, falsely, that the property was jointly owned by himself and the mother when, in fact, he knew that he and the mother were tenants in common. His intent was to get
the SSA to believe that as a result of the mother’s death, he was the only owner of the property. This intentional conduct violated Mass. R. Prof. C. 4.1(a), 8.4(c) and 8.4(h).
The parties have stipulated to additional facts that ameliorate the respondent’s conduct, among them that the goal of the representation was to resolve the mother’s mortgage problems, allow her to keep her house, and transfer it back to her once the arrears were satisfied; the respondent paid the mortgage and other expenses while he held an ownership interest; the respondent satisfied the MassHealth lien from his personal funds; and after the mother’s death and upon payment of agreed-upon consideration, the son (heir) transferred his interest in the home to the respondent. The parties represent that the respondent did not ultimately receive any financial benefit.
A related Massachusetts Appeals Court opinion is linked here.
The judge found that Costantino not only had actual notice of the lien at the time of transfer, but also that he deliberately attempted to avoid his responsibility for the lien. In light of these findings, the judge properly ruled that Costantino was not a bona fide purchaser of the property from John.
The court affirmed the trial judge. (Mike Frisch)