Not Held In Trust

A justice of the Massachusetts Supreme Judicial Court imposed a stayed three-month suspension and probation 

The following facts were found by the hearing committee and adopted by the board. The respondent, admitted to practice in Massachusetts in 1985, primarily handles criminal defense and personal injury matters. In September 2015, he was retained to defend a client in a civil case, accepting a $10,000 retainer to be billed at $350 per hour. Contrary to Rule 1.15, the respondent deposited the funds into his operating account. He explained that he had never previously handled an unearned retainer and was concerned about credit card chargebacks affecting his IOLTA account.

As of January 4, 2016, the respondent had earned only $3,587.50 of the retainer but had spent all or most of it. He ultimately earned the full retainer by March 2017. The client later retained him in connection with a related federal criminal investigation, during which she filed a complaint alleging ineffective assistance regarding her Fifth Amendment rights.

In the ensuing bar counsel investigation, the respondent initially failed to provide complete financial documentation. It was only after a subpoena to the respondent’s bank that bar counsel discovered the retainer had never been deposited into a trust account. The respondent later acknowledged this in a letter dated September 27, 2021.

The respondent also admitted to violating several IOLTA-related rules, including a failure to maintain individual client ledgers and separate ledgers for bank fees, from 2015 through 2020. As of the hearing, he remained unclear about these requirements.

Sanction

Considering the totality of the circumstances, including the intentional misuse of client funds and multiple rule violations, I conclude that a three-month suspension, stayed for one year on the condition of quarterly IOLTA reporting, is appropriate.

(Mike Frisch)