“An Obvious Conflict Of Interest”

A reprimand imposed by the Massachusetts Board of Bar Overseers

Sometime in August 2021, there was a hazardous waste spill on real property located in the town of Oak Bluffs on Martha’s Vineyard. Francis Bernard (Bernard), who was nearly eighty-eight-years-old at the time, owned and lived in the house on that property. Bernard’s daughter, Mary Johnson (Johnson), was considering financing the necessary clean-up at her father’s property, but she was keen to ensure that she was reimbursed in some manner. Faced with this conundrum, Johnson sought and obtained legal advice from the respondent whose law practice focused on real estate and probate matters, and they thereby formed an attorney-client relationship by no later than September 2021.

In April 2022, Bernard, at Johnson’s suggestion, retained the respondent to draft a revised last will and testament. Bernard’s house was his only significant asset, and he informed the respondent that it was his desire to bequeath the house to Johnson on the condition that Johnson pay $100,000 to each of her siblings, Ricky Bernard and Stephanie Boudreau, and pay another $100,000 collectively to Benard’s grandchildren. While forming an attorney-client relationship with Bernard, the respondent failed to provide him with a written fee agreement. The respondent never finalized a revised last will and testament for Bernard that reflected his expressed desires for his property.

Nevertheless, on May 20, 2022, the respondent met with Bernard and Johnson, and the respondent presented Bernard with and had him sign a Quitclaim Deed transferring his house to Johnson as a “gift for no consideration”. At the same time, the respondent presented Johnson with and had her sign a Form LB1 Affidavit and a Form LB2 Affidavit as the grantee of the property. The respondent signed the Form LB1 Affidavit as Johnson’s legal representative.

On August 22, 2022, Bernard contacted the respondent and demanded that she have Johnson convey the house back to him, but the respondent told Bernard that she could not do so. By letter dated August 23, 2022, Bernard terminated the attorney-client relationship with the respondent.

There was an obvious conflict in the respondent’s simultaneous representation of Bernard and Johnson concerning the property. Bernard was harmed by having his house transferred to Johnson without being subject to the express conditions he expressed to the respondent. The respondent did not obtain from Bernard and Johnson their informed consent to the conflict of interest confirmed in writing.

The respondent stipulated that her forgoing misconduct violated Mass. R. Prof. C. 1.1 (competence); 1.3 (diligence); 1.5(b)(1) (Fees); and 1.7(a) and (b) (Conflict of Interest: Current Clients).

(Mike Frisch)