Suspension Proposed For Estate Issues

A Hearing Committee of the Massachusetts Board of Bar Overseers recommends a suspension of six months for an attorney’s mishandling of two estates and related misconduct

We find that the respondent engaged in repeated failures to act with diligence, and that this constituted a pattern of misconduct. Year after year, she neglected her duties. We are especially troubled by the respondent’s misleading comments at Gifford’s funeral, which actively dissuaded any heirs from contacting her to open an estate. Telling none of the heirs about the money in Gifford’s estate-a circumstance not featured in any of the public reprimand cases we have found-allowed her and Beaulieu unfettered discretion to pursue a protracted and fruitless strategy that enriched them at the heirs’ expense. We are mindful of the fact that both were paid for their efforts, that no money has been returned to the estate, and that there has been no reimbursement of interest lost as a result of the failure properly to invest estate funds.

Accordingly, we recommend a six-month suspension from practice.

A dissent would impose public reprimand

The language quoted above from Kane recognizes that a public reprimand may be appropriate even where, as here, there has been serious injury. I am aware that the Kane protocol assumes no aggravation, but I do not think the aggravation we found in this case nudges the sanction from a public reprimand to a suspension. Rather, Kane prescribes a suspension only for repeated failures to act with diligence, or a pattern of neglect. I do not think either was proved here. While the respondent’s neglect went on for years, it was all part of two interconnected and related matters (estates), with one set of beneficiaries. Therefore, I cannot conclude that the neglect was repeated, or that it formed a pattern. The public reprimand cases cited above seem to me to support my conclusion that bar counsel has not proved repeated, or a pattern of, neglect. There is no case law squarely pointing the sanction in one direction or another, and this is indeed a close case. I am mindful that “[e]ach case must be decided on its own merits and every offending attorney must receive the disposition most appropriate under the circumstances.” See Matter of Zankowski, supra. Given that (1) bar counsel did not charge the respondent with misrepresentation; (2) the aggravating factors here are not of the more serious type cited in Kane, see id. at 13 Mass. Att’y Disc. R. at 328; (3) under Kane a public reprimand may be appropriate even when the misconduct causes serious injury; and (4) I do not find that bar counsel has proved repeated, or a pattern of, neglect, I think a public reprimand is the most appropriate sanction.