The Supreme Judicial Court (“SJC”) recently approved a three month suspension of a Massachusetts attorney for violating several Rules of Professional Conduct. In the Matter of Timothy M. Mauser, a husband and wife hired an attorney to review their bankruptcy proceedings, after they discovered certain tax liens had not been discharged.
The attorney agreed to draft a new offer to compromise an IRS tax lien, to investigate a malpractice claim against their bankruptcy attorney, including sending him a demand letter, and to form a corporation for the couple . The parties orally agreed to a flat fees for the work, but the attorney never provided any written agreement. Before leaving the attorney’s office, the husband endorsed a check over to the attorney, which included funds in excess of the agreed upon flat fee. The clients requested that the attorney hold the excess funds until a later date, when he eventually returned the money to them.
One year later, the attorney had performed all of the requested tasks and referred the couple to other counsel after he was unable to resolve the malpractice matter short of litigation. The clients requested the attorney return their file, but he failed to do so for approximately one month. The clients then filed a complaint with the Board of Bar Overseers (“BBO”).
After investigating the matter, the BBO found that the attorney failed to comply with several of the Massachusetts Rules of Professional Conduct. First, his failure to hold the excess funds in a separate client trust account was a violation of Mass. R. Prof. C. 1.15(b), which prohibits the commingling and negligent use of client funds. Next, the attorney’s failure to draft a written fee agreement, which informed the clients of the scope of his representation and the rate of his fees, violated Mass. R. Prof. C. 1.5(b)(1). Also, his failure to timely return the clients’ file was a violation of Mass. R. Prof. C. 1.16(e).
The BBO recommended a three-month suspension, stayed for a period of one year, subject to the attorney (1) agreeing to be audited by the Law Office Management Assistance Program (“LOMAP”), (2) to adopt LOMAP’s recommendations, and (3) to make quarterly reports to bar counsel. The SJC accepted the BBO’s recommendation, and issued an appropriate Order.
Decision: In Re: Timothy M. Mauser