Lengthy Suspension For Sympathetic Misappropriation

A justice of the Massachusetts Supreme Judicial Court has concluded that the Board of Bar Overseers struck an appropriate balance of competing factors and imposed an 18-month suspension for an attorney’s mishandling of his trust account and two instances of misusing entrusted funds. 

Bar Counsel sought a 30-month suspension; the hearing committee recommended a 15-month suspension with three months stayed and automatic reinstatement. 

In one matter, the attorney settled a personal injury case (with client consent), signed the client’s name to the insurance check and used a portion to pay his daughter’s college tuition

The respondent stated that he paid his daughter’s college tuition both to maintain her health insurance, because no one else in the family had health insurance or access to a health insurance plan, and because, in doing so he “felt like I was saving her life. It was that important.”

The client was paid within a week from the attorney’s share of a separate settlement and the attorney was found not to have intended to deprive the client of the proceeds.

The attorney misused funds in the second matter which involved a serious auto accident where a client with drug problems received an $8,500 settlement. The attorney had a longstanding friendship with the client’s mother and used entrusted funds for his own purposes but

The committee concluded· that [client] Jane, [mother] Shirley, and the respondent had agreed that Jane would not be paid any of the funds until she called and asked for them, and that, each time she called, the respondent promptly had paid her the amount requested.

The justice found unique mitigation in an “horrific” accident in which the attorney’s daughter had been injured and charged with offenses. The tuition payment came at that time

For a six-week period after the accident

the respondent and his wife stayed with her around the clock, first at the hospital, and then at her bedside at home, switching night and day shifts so that each could continue working. Their daughter’s left leg was severely injured and· required several surgeries.

After discharge, the daughter suffered an allergic reaction to medication and returned to the emergency room

On her return home, the respondent stayed at her bedside, sleeping in a chair, so that he could “watch to be sure she was all right.”

These obviously sympathetic circumstances would likely have a larger impact if the conduct had not involved entrusted funds.

The court

The circumstances here are exceptional. The parties do not point to, and this court has not found, any disciplinary matter involving similar conduct or the same type of mitigating circumstances present here.

Note that a significant suspension was imposed notwithstanding the relatively small amounts involved, the absence of harm or intent to permanently deprive and the compelling mitigation. 

 Associate Justice Lenk acted for the court. (Mike Frisch)