On Martha’s Vineyard

A Hearing Committee of the Massachusetts Board of Bar Overseers has recommended that an attorney be suspended for three to six months after he had rejected a proposed admonition

After an investigation, bar counsel recommended that an admonition be administered to the respondent, Daniel James Larkosh, Esq. S.J.C. Rule 4:01, § 8(1)(c)(i). On July 29, 2022, the Board issued an admonition to the respondent. See S.J.C. Rule 4:01, § 8(2)(b). The respondent objected to the admonition and filed a demand that the admonition be vacated. See S.J.C. Rule 4:01, § 8(2)(c) and the Rules of the Board of Bar Overseers (B.B.O. Rules) § 2.12. As a result, the matter was assigned to a special hearing officer (SHO), who conducted an evidentiary hearing on September 9 and November 9, 2022, pursuant to S.J.C. Rule 4:01, § 8(4)(a) and B.B.O. Rules § 2.12. The SHO issued her report on December 22, 2022, concluding that an admonition should be imposed. The SHO report was filed with the Board and the respondent appealed. See S.J.C. Rule 4:01, § 8(4)(b) and B.B.O. Rules § 3.50(a). On May 8, 2023, the Board voted to remand the matter for formal disciplinary proceedings. S.J.C. Rule 4:01, §§ 8(4)(b) and 8(5)(a).

The complex facts involve Respondent’s purported representation of an elderly woman suffering from dementia; the committee found he in fact represented the interests of one of her daughters.

In July 2019, Barbara Roberts (“Roberts”) was 88 years old and resided in Windemere Nursing and Rehab Center at the Martha’s Vineyard Hospital (MV Hospital) in Martha’s Vineyard (“Windemere”). (Windemere is a long-term or skilled nursing facility within MV Hospital)). 

Roberts had four adult daughters: Wendy Bujak (“Bujak”), Linda Acton (“Acton”), Lois Hart (“Hart”), and Barbara Anne Roberts (“Anne”). Bujak was Roberts’s primary caretaker. 

Attorney Eric L. Peters has practiced law on Martha’s Vineyard since 1983. For several years, beginning in 2012 and through approximately 2024, Peters was Roberts’s attorney and provided her with legal counsel and assistance in matters concerning her real estate and estate planning; he also assisted Bujak on Roberts’s behalf concerning Roberts’s trust, estate, and healthcare-related matters. His initial work for Roberts included the transfer of the home of Judith Hart (Roberts’s sister) to Roberts as a gift and for no monetary consideration.

Bujak, as noted, was her mother’s primary caregiver and held her durable power of attorney and healthcare proxy

On September 13, 2016, Roberts signed a quitclaim deed whereby Roberts, “in consideration of love and affection, as a gift, and for no monetary consideration” transferred her Chilmark home and a vacant lot to Bujak, reserving a life estate for herself. (referring to the home as “Abel’s Hill” and saying it is located at 15 Overview Road). Peters prepared, notarized, and recorded said deed.

Prior to preparing the deed, Peters met with Roberts, who told him that she wanted to transfer the properties to Bujak. Peters was clear that Roberts’s transfer of her real estate to Bujak was not in exchange for a promise or agreement that Bujak would keep Roberts in the Chilmark home, or care for her there, for the remainder of Roberts’s life.

Thereafter

After transferring the properties to Bujak in 2016, Roberts never expressed to Peters any interest in undoing the transfer or any objection about how Bujak handled her care. Moreover, neither Roberts nor Bujak, on Roberts’s behalf, ever asked Peters to assess whether Roberts had been defrauded in the transfer, to try to undo the transaction, to file a complaint against Bujak concerning the transaction, or to enforce Roberts’s life estate in the house against Bujak. Roberts continued to live in Crow Stairs, Chilmark for another year, until late 2017.

Enter Hart

One of Roberts’s daughters was Lois Hart. She had been estranged from her family, including Roberts, for many years and did not visit Roberts or Martha’s Vineyard between 2010 and 2018. In 2018, Hart was living in Utah and struggling with a number of personal health and financial issues, including that her domestic partner had lost his medical license. Hart had previously been an attorney, but she resigned from practice many years ago. At some point in 2011, Roberts had started providing Hart with $1,000 per month, an amount which by March 2018 had increased to $2,000 per month.

And then Respondent

it appears that Hart’s reason for asking the respondent to meet with Roberts was to accomplish her goal of undoing Roberts’s 2016 deed to Bujak. Hart told the respondent that Roberts was the victim of elder abuse, in that Roberts was pressured to deed Crow Stairs to Bujak. However, there is an abundance of credible evidence that Bujak did not exert undue influence or elder abuse on Roberts. The respondent was not aware of any complaints filed with elder services concerning Roberts. Peters was also unaware of any complaints or investigation of elder abuse concerning Roberts before July 2019. We credit Peters’s testimony that Roberts executed the 2016 deed of her own free will, and that no one exerted undue influence on Roberts to convey her real estate to Bujak. Further, and significantly, the guardian ad litem (“GAL”) appointed in January 2023 as the result of a later lawsuit, noted in her report that “[Roberts] had also told multiple people interviewed [by the GAL] that the transfer was a way to repay [Bujak] for all that she had done for [Roberts].” 

Findings

we find and conclude that 1) Roberts did not ask Hart to find an attorney for her for any matter; 2) that Bujak did not exert any undue influence on Roberts to deed the property to Budak; and 3) that Bujak did not make any promises to Roberts to care for her in Crow Stairs as an inducement for Roberts to deed her real estate to Bujak.

The findings of misconduct relate to Respondent’s assertions of an attorney-client relationship with Roberts and communications with her without the consent of Peters.

The respondent was not contacted by Roberts; he was contacted by Hart and met with Roberts despite being told by Roberts’s attorney (Peters) not to communicate with Roberts. That should have been the end of it. (Even if the respondent had been contacted directly by Roberts, rule 4.2 and comment [3] required that he confer first with Peters.) The respondent was not entitled to “test” the veracity of Peters’s statement of client representation or instruction by a subsequent in-person solicitation of a vulnerable person.

In fact, the respondent’s in-person solicitation of a vulnerable elderly client is a separate factor in aggravation.

Further factor in aggravation

The respondent, who (as appears from our findings) we generally found to be not credible, lacked candor at the disciplinary hearing. He testified falsely under oath before us on multiple occasions. We find that the respondent intended to deceive us with his testimony. Lack of candor before the hearing committee is an aggravating factor.

Recommended sanction

Bar counsel seeks “at least” a public reprimand; the respondent seeks a dismissal. We recommend that the respondent be suspended for three to six months.

We previously noted the parallels between the present case and the Box case from Iowa, supra. However, Box did not violate rule 7.3 because the elderly client came to Box’s office, whereas the respondent went to solicit Roberts at a locked ward in a nursing home. While both clients were elderly (Roberts was 88 while Box’s client was 80), Roberts was more vulnerable because she suffered from dementia and was fixated on the unrealistic and infeasible desire to leave the nursing home. Finally, Box’s sanction was mitigated by factors not recognized in Massachusetts: his “fine reputation as a competent attorney who has served his clients well for many years” and the fact that this “was an isolated incident that was inconsistent with his normal pattern of care and concern for the profession.” Box, supra, at 766.31 Box also lacked all but one factors in aggravation present in the case before us (vulnerable client). Accordingly, the respondent’s sanction should be greater than the public reprimand in Box.

Citations to the findings have been excised for reading comprehension purposes. (Mike Frisch)