In re Hilson

• Decision Date: 27 March 2007
• Citation: 863 N.E.2d 483,448 Mass. 603
• Parties: In the Matter of Robert P. HILSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

863 N.E.2d 483

448 Mass. 603

In the Matter of Robert P. HILSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 6, 2006.

Decided March 27, 2007.

James S. Bolan, Newton Centre (Sara N. Holden with him) for the respondent.

Dorothy Anderson, Boston, Assistant Bar Counsel.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

SPINA, J.

The Board of Bar Overseers (board) filed an information with the county court recommending that the respondent, Robert P. Hilson, be suspended indefinitely from the practice of law for misconduct that includes conversion of third-party funds he received in the course of a representation, giving testimony under oath that was intentionally or recklessly false, and unnecessarily revealing client confidences. The respondent challenges the findings and conclusions of the board. The single justice reserved and reported the case, without decision, to the full court. We adopt the findings and conclusions of the board, and we order that the respondent be suspended indefinitely from the practice of law.

1. Background. A special hearing officer found the following facts, which were adopted by an appeal panel of the board and by the full board. Differences between conclusions of the special hearing officer and the appeal panel, whose conclusions were adopted by the board, will be noted.

The respondent represented a real estate broker who had agreed to hold in escrow, under the terms of a purchase and sale agreement dated December 7, 1994,¹ the buyer's deposit of $34,200 toward the purchase price. After the buyer defaulted, a dispute between the realtor and the seller arose over the deposit: the broker claimed fifty per cent under the terms of the purchase and sale agreement; the seller claimed the entire deposit under the terms of a prior listing agreement.

The respondent filed an interpleader action claiming fifty per cent of the deposit on behalf of the broker. He also stated that the seller claimed an interest in the deposit. The broker had spent most of the deposit. At the respondent's urging, the broker obtained $35,100 to cover the deposit, plus interest, and sent it to the respondent. The respondent then deposited this money in his IOLTA account, where he held it on behalf of the broker with full knowledge of the terms of the purchase and sale agreement, including the fact that the broker was an escrow agent thereunder.

The trial judge denied a pretrial motion by the seller to compel the deposit of the monies with the court. The respondent opposed the motion, arguing as one of his grounds that the seller had not shown that any portion of the deposit had been converted. The trial judge denied a similar motion at the conclusion of the trial, and explained he would make a decision quickly. He stated further that he assumed the respondent would not do anything with the funds until a decision was rendered.² A declaratory judgment entered on September 20, 1995, that provided the seller was entitled to fifty per cent of the deposit, plus five per cent interest, and that the broker and a cobroker each were entitled to twenty-five per cent, without interest. There was no award of attorney's fees or order for equitable relief.

The respondent distributed checks conformably with the judgment.³ The attorney for the seller subsequently wrote to the respondent on October 2, 1995, requesting that no monies be disbursed until the appeal period expired. He thereafter filed a notice of appeal. Apparently concerned that the appeal would be compromised if he cashed the check issued to the seller, the seller's attorney returned the check to the respondent by letter dated October 10, and directed him to deposit the escrowed funds in an interest-bearing account with the seller as signatory.

On October 16, 1995, the respondent wrote to the seller's attorney, notifying him that he had disbursed money to the broker and the cobroker. He indicated he would not deposit the returned check in an interest-bearing account, but that he would hold the money in his IOLTA account. The respondent apprised the broker of the status of the case in a letter dated October 25. He informed her that he would hold the funds returned by the seller in his IOLTA account "pending further action." The respondent knew at this time that he would be holding a substantial sum of money for a significant period of time.

On October 31, 1995, the seller's attorney wrote to the respondent and asked him to retrieve all disbursed funds and place them in an interest-bearing account pending the appeal. The respondent replied on November 2, pointing out that there had been no court order preventing the disbursement. He suggested that any relief be sought from the court, and that it be directed at the parties, and not at him. The seller's attorney filed a motion to compel the broker and the cobroker to return the disbursed funds pending the appeal, and if they were to default in their performance, that the respondent be ordered to replace the disbursed funds. The motion was denied, after hearing, on January 17, 1996. Before the hearing, the respondent offered to give a check in the amount of $17,787.96 to the seller's attorney. On January 17, after the hearing, and again on February 2, 1996, the seller's attorney wrote to the respondent and asked him to reissue the check to the seller, without prejudice to the seller's right to pursue the appeal. The respondent stood silent each time.

In February, 1996, the broker was injured and was unable to work. During April, 1996, the respondent had several conversations with her about his outstanding legal bill. He expressed concern about when he would be paid.

In the middle of May, 1996, the respondent telephoned the broker's home and left a message on her answering machine. The broker had been hospitalized for depression, so her husband returned the call. The respondent explained that he was releasing the funds he was holding and wanted his bill paid. He asked that the broker come to his office to sign the necessary paperwork. On May 20, 1996, the broker and her husband drove to the respondent's office. The broker waited in the car while her husband went inside to get a check drawn on the respondent's IOLTA account payable to the broker in the amount of $17,787.96. The broker endorsed the check, and also signed a disbursement authorization form, which has never been produced. Her husband brought the two signed items to the respondent, who handed him a check drawn on the respondent's money market account payable to the broker in the amount of $9,000. He then deposited the $17,787.96 check to his money market account. This deposit covered the $9,000 check to the broker, a $3,700 check he deposited to his IOLTA account on behalf of the broker for an unrelated matter, and $5,087.96 in full satisfaction of the amount the broker owed him at the time ($5,088.10).

In late October, 1996, the respondent filed a motion to withdraw from his representation of the broker in the interpleader matter, citing a breakdown in the attorney-client relationship. The seller's attorney opposed the motion on the ground that the respondent was holding funds belonging to the seller. The respondent stated in open court that he was no longer holding the funds. He was allowed to withdraw. After the respondent resisted discovery regarding the escrowed funds, a judge ordered him to deposit $17,787.96 with the court "forthwith" (February 4, 1997). He deposited $17,787.96 with the court on March 25, 1997, following an unsuccessful interlocutory appeal in which a single justice of the Appeals Court concluded that the basis of the order that the respondent deposit the money forthwith was that he was acting as an escrow agent for the broker and for others.

In the meantime, the seller filed an action against the respondent and the broker alleging breach of contract by the broker, breach of fiduciary duty by the respondent, and violations of G.L. c. 93A by both. The respondent filed cross claims against the broker for outstanding legal fees, and, based on allegations that the broker demanded that he disburse the $17,787.96 he had been holding, indemnification and contribution for any amount recovered by the seller. In the course of discovery on the c. 93A litigation, the seller scheduled the deposition of the broker, who was unrepresented. The broker was questioned on October 6, 1997, by the seller's attorney, by the respondent's attorney, and by the respondent himself. The respondent personally asked the broker, his former client, about confidential matters, including the name (an acronym) of her corporation; her misuse of the escrow funds before the interpleader action had been filed; whether she or any member of her family had drug or alcohol problems; whether she had been accused or convicted of stealing buyer deposit money; whether her son had been accused of sexual assault; whether her daughter was pregnant and unmarried; whether she had been evicted from her residence; whether she and her husband were in the process of divorcing, and the reasons; and whether she was being pursued by creditors.

During the trial of the G.L. c. 93A litigation in September 1999, the respondent testified that on May 20, 1996, he wrote a check to the broker for $17,787.96, at her direction, from his IOLTA account, and that he handed it to her in the waiting area of his office. He knowingly testified falsely that he did not write any other checks to her on that day. He also testified that she later returned and paid his bill for legal fees in the amount of $5,029.96. Later that day, the seller's attorney issued a subpoena to the keeper of the records of the respondent's law office for production of the respondent's bank records. The respondent searched the records stored in his basement and located the $9,000 cancelled check he gave the broker on May 20, 1996. He brought it to court the next day. The case ag...