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BBO summary: April 23.

Byline: Mass. Lawyers Weekly Staff

The following summaries were compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court. The complete orders are available by contacting the clerk of the SJC. SJC No. BD-2018-0 In Re: Andrea Butler P.O. Box 971 Essex, MA 01929 SJC order of term suspension entered by Justice Lowy on Feb. 12, 2018, with an effective date of March 14, 2018 Based on an agreed stipulation with bar counsel, the respondent received a suspension of six months and one day for her lack of diligence in representing a beneficiary of an estate, aggravated by her prior discipline and harm to the client. The respondent failed to conduct timely or adequate discovery and investigation, leading to a failure to evidence at trial and subsequent delays of several years before the client settled the case on his own. Summary In May 2008, a client hired the respondent to seek reimbursement of $14,904.82 from his brother's estate. The funds represented the proceeds of two joint accounts held in client's and his deceased brother's names at Enterprise Bank. On March 12, 2008, two days prior to his brother's anticipated death, the client forwarded these funds to the estate at the instruction of the estate's designated co-executors. Subsequently, the client disregarded the co-executors' request to forward additional funds jointly held in passbook savings accounts under his and the decedent's name at Butler Bank. On October 8, 2008, the estate filed an amended civil complaint in the Boston Municipal Court against the client alleging the client had misappropriated $30,000 from accounts held in his name and the decedent's name at Butler Bank. The client, represented by the respondent, denied the misappropriation and counterclaimed for the Enterprise Bank funds described above. The respondent conducted discovery from the estate but failed to conduct investigation or discovery from any of the banks. Specifically, the respondent failed to request or obtain any of the signature cards opening the accounts. The case proceeded to trial without the introduction of any signature cards for the accounts in issue. On March 3, 20, the Court found that the records provided to the Court did not establish the decedent's donative intent and that when the decedent opened the accounts he did not designate a right of survivorship to any of the accounts. The court relied upon the testimony of the estate co-executors and the decedent's attorney in dismissing the client's counterclaim. The court ordered the client to return funds that he had retained from the decedent's accounts and to pay court costs to the estate, either directly or through offset from the estate distribution. After trial, in April 20, the client, on his own, obtained the banks' signature cards for the joint accounts. These cards showed that one account at Enterprise and one account at Butler designated rights of survivorship to the client. The existence of these cards materially contradicted evidence that was presented at trial. Soon thereafter, the client provided the cards to the respondent, asking that something be done. Over the next three years, the client met or communicated with the respondent on numerous occasions, reasonably believing that the respondent was pursuing a general settlement by means of negotiation, or remedying the district court decision, or pursuing an accounting of the estate. On December 6, 2012, the client sent an email to the respondent confirming that they met that day and discussed requesting a new trial. On January 4, 2013, he sent an email to the respondent that discussed pursuing an appeal and asking whether there was anything to report on the motion to obtain an accounting from the co-executors that he believed the respondent had filed in the estate matter. From January 14, 2013 until September 13, 2013, the respondent and the client exchanged emails discussing a hearing date before the Probate Court. At no time did the respondent inform him that she was neither pursing an appeal or other post-trial relief nor requesting any accounting in the Probate Court. Thereafter, the respondent did no work on the case but did not inform her client that she intended to stop work. During this time, the client reasonably believed that the respondent was continuing to pursue his objectives. In May 2014, the client terminated the respondent by letter and in June 2014, he filed a pro se petition to have the estate render an accounting, which the court granted. In March 2015, he settled the matter on his own and waived his rights to an accounting in exchange for a release from the outstanding District Court judgment that had entered against him. The respondent's failure to conduct reasonable discovery or conduct reasonable investigation required in the circumstances, her failure to seek the lawful objectives of her client and her failure to adequately communicate with her client, as described above, is conduct in violation of Mass. R. Prof. C. 1.2(a), 1.3 and 1.4(a). In aggravation, in 2002, the respondent was suspended for a six-month period, with reinstatement conditions, based on four matters that involved lack of diligence and, in addition, a failure to communicate in one litigation matter. The respondent complied with her reinstatement conditions and was reinstated to the practice of law. Thereafter, she confined herself to real estate matters and avoided litigation or cases beyond her abilities. She has more recently generally restricted her practice to local real estate zoning matters. This matter came before the board on a stipulation of facts and disciplinary violations and a joint recommendation of a suspension of six months and one day. The Board of Bar Overseers accepted the parties' recommendation, and on February 12, 2018, the Court so ordered, effective thirty days from the date of the order. *** SJC No. BD-2018-014 In Re: Whitton E. Norris III 35A South St. Medfield, MA 02052 SJC order of term suspension entered by Justice Kafker on Feb. 27, 2018, with an effective date of March 29, 2018 The respondent was suspended for six months for repeated violations, over the course of about eight years, of his child support obligations. The Court also required that he file a petition for reinstatement. Summary On August 24, 2015, bar counsel filed a petition for discipline against the respondent, Whitton E. Norris, III, Esq. The petition charged that the respondent violated probate court orders for the payment of child support, resulting in multiple findings of contempt. The matter was assigned to a hearing committee of the board. The committee found, in summary, as follows. In December 2000, the respondent and his second wife entered into a separation agreement under which the respondent agreed to pay child support in a set monthly amount and based on a presumptive earning level, notwithstanding the acknowledgment set forth in the agreement that the respondent's income fluctuated. They obtained a divorce judgment in early 2001 that was based on their separation agreement and incorporated the fixed child support order as set in the separation agreement. From July 2008 through and including September 2016, the respondent and his ex-wife appeared in the probate court at least ten times litigating the respondent's support obligation and his ex-wife's charges that he was in contempt of the divorce judgment and order. On five occasions he was found in contempt. When threatened with incarceration under certain of those contempt findings, the respondent cured some, but never all, of his arrears. Some of those contempt findings were made after the respondent had obtained an order reducing his support obligation by about fifty percent, yet he continued to fall further into arrears. The committee's rejection of the respondent's defense of inability to pay relied in part on an order of issue preclusion. In a memorandum and opinion issued in January 2015 after trial of the respondent's complaint seeking a further reduction of the support order and the ex-wife's contempt complaint, that judge attributed income to the respondent based in part on earning capacity that exceeded his reported income, denied his request for a further reduction of his support obligation, and found the respondent in contempt. Based on the probate court judge's detailed findings, the respondent was precluded from litigating his claim that he had been unable to comply with his child support obligations. The committee concluded that the respondent's repeated disobedience of the support order violated Mass. R. Prof. C. 3.4(c) (knowing disobedience of obligations under the rules of a tribunal), 8.4(d) (conduct prejudicial to the administration of justice), and 8.4(h) (other conduct reflecting adversely on fitness to practice). In aggravation, the hearing committee noted the respondent's substantial experience at the time of his misconduct and the harm he caused his ex-wife and children by non-payment. It found that the respondent had failed to recognize and acknowledge the wrongfulness of his misconduct and that he had demonstrated a lack of candor before the committee. The hearing committee recommended that the respondent be suspended for three months and that his reinstatement be conditioned on his demonstrating that he had cured the child support arrearages that had accrued as of the date the petition for discipline was filed. Neither party appealed the committee's findings. The board reviewed the hearing report pursuant to B.B.O. Rules, 3.52 and notified the parties that it was not inclined to accept the committee's recommendation for discipline, especially regarding the proposed restitution order. After the parties had the opportunity to brief the matter, the board, at its meeting on December 11, 2017, voted to recommend that the respondent be suspended for six months, and that he be required to file a petition for reinstatement. The Court so ordered on February 27, 2018. *** SJC No. BD-2000-039 In the Matter of John B. Shorton Reinstatement hearing The Board of Bar Overseers will hold a public hearing on the petition for reinstatement of John B. Shorton of Norwood, MA, who has been suspended since 2000. The hearing will be on Monday, June 11, 2018, at :00 AM, at the Office of the Board, 99 High Street, Boston, MA. Hearings are subject to rescheduling without notice. Parties interested in attending or offering testimony should contact the Administrative Assistant of the Board at (617) 728-8700 in advance of the hearing date.  

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Publication:Massachusetts Lawyers Weekly
Date:Apr 19, 2018
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