In re Williams
| Decision Date | 23 February 2023 |
| Docket Number | SJC-13268 |
| Parties | In the MATTER OF Abby R. WILLIAMS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The case was submitted on the record, accompanied by a memorandum of law.
Alan E. Brown, Boston, for the respondent.
The respondent attorney, Abby R. Williams, appeals from the judgment of a single justice of this court disbarring her from the practice of law.1 The matter came before the single justice on the information and record of proceedings filed by the Board of Bar Overseers (board). The board determined, inter alia, that the respondent intentionally misused client trust funds, resulting in ongoing deprivation to clients. The board recommended, and the single justice ordered, that the respondent be disbarred. We affirm.
1. Prior proceedings. On September 9, 2019, bar counsel filed a seven-count petition for discipline against the respondent. Counts one, two, and four alleged that as to three sets of clients, the respondent intentionally misrepresented costs and intentionally misused client trust funds with ongoing deprivation resulting.2 Through counsel, the respondent filed an answer denying these allegations; these three counts are the only counts at issue on appeal.3
The matter was referred to a hearing committee of the board. After an evidentiary hearing at which the respondent was represented by counsel, the committee filed a report of its findings of fact and conclusions of law and recommended that the respondent be disbarred. The board thereafter considered the respondent's appeal and issued a report generally adopting the hearing committee's report and recommendation;4 an information was filed in the county court. A single justice of this court reviewed the record, accepted the board's recommendation, and a judgment of disbarment entered. The respondent appealed pursuant to S.J.C. Rule 2:23, 471 Mass. 1303 (2015).
2. Facts found by the committee and adopted by the board. We summarize the relevant factual findings of the hearing committee, as adopted by the board. We agree with the single justice that the findings are supported by substantial evidence. See S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009).
The respondent was admitted to the Massachusetts bar in 1991, and in 1996 or 1997, she established the law firm "Abigail Williams & Associates, P.C.," of which she was the sole owner, officer, and managing partner. In 2015, the respondent transitioned the firm to a limited liability company, founding "Abigail Williams & Associates, L.L.C." Respondent retained control of the new entity.
From July 2007 to July 2013, the respondent's firm employed Ross Annenberg as an associate attorney. While working for the respondent's firm, Annenberg misused client funds for his own benefit by inflating costs, among other methods. By the end of July 2013, the respondent had ended Annenberg's employment with her firm. Annenberg was subsequently disbarred and pleaded guilty to criminal charges arising from his misconduct. See Matter of Annenberg, 31 Mass. Att'y Discipline Rep. 8, 8 (2015).
Although the respondent contends that Annenberg was responsible for the misappropriation of client funds in the three cases at issue in counts one, two, and four, the hearing committee found that it was the respondent who personally and intentionally committed the misconduct. In addition to the case-specific facts described infra, the hearing committee found that the respondent's firm suffered serious ongoing financial problems and that the respondent borrowed money to pay the firm's employees and to cover the firm's other costs. And while Annenberg primarily handled the firm's nonmedical malpractice personal injury cases, it was the respondent who primarily handled the firm's medical malpractice cases. Consistent with this practice, the respondent, not Annenberg, calculated costs for the medical malpractice cases.
a. Count one. Count one concerned the respondent's representation of two clients in a medical malpractice case. In 2012, the lawsuit settled. Minus a portion of the funds paid to a life insurance company and placed in a structured settlement, the settlement proceeds were deposited in the respondent's Interest on Lawyers’ Trust Account, an account for which the respondent was the only signatory. The respondent's firm was entitled to $33,392.78 in costs but paid itself $160,000 in costs. The difference of $126,607.22 was never paid to the clients. On appeal, the respondent does not dispute these numbers.
When the respondent's firm paid itself in June 2012, it did not provide the clients with the contemporaneous accounting required under Mass. R. Prof. C. 1.15. Partial payment was made to the clients by way of a check, and a copy of this check bore the respondent's handwritten notations computing costs in the inflated amount of $160,000. The respondent testified that she made these notations at the time of the relevant disbursement. In addition, the evidence included an undated worksheet on which the respondent made a correction as to the specific amount of the costs charged to the clients.
In about February 2013, one of the clients called the firm and requested an itemization of the costs. In answer to this request, the respondent signed the cover letter accompanying a purported settlement breakdown. But as to costs, the breakdown included only a one-line total of $160,000 and not an itemization as the client had requested.
b. Count two. In a second case, the respondent represented a client individually and as administrator of an estate in a medical malpractice case arising out of the death of the client's husband, and an administrator de bonis non subsequently was appointed for the husband's estate. In 2012, the lawsuit settled as to one of the defendants. The respondent's firm was entitled to $59,736.90 in costs from the settlement. Nevertheless, the respondent later provided the administrator with a settlement statement asserting costs in the amount of $195,171.17. The respondent does not dispute the proper amount of costs, nor does she dispute that the ultimate costs were inflated. The $135,434.27 difference between the proper and inflated costs was never paid to the client.
As the hearing committee determined, the respondent's firm improperly billed two specific items as costs, and the respondent intended these overcharges. First, the client was billed for a consulting attorney's fees, which were not costs. Second, and more pertinent to the issues before this court, the client was billed for $11,816.36 in costs associated with a so called nonattorney "consultant." In fact, this person was an employee of the respondent's firm who did not receive any compensation for her work on the case apart from her ordinary wages. Moreover, the $11,816.36 was not a fee associated with legal or consulting work but rather represented the respondent's repayment of a loan she personally received from the employee.5
The settlement breakdown that falsely inflated these costs was provided to the estate administrator only after the administrator made a personal request to the respondent, and even then, it was delayed by more than two months. The settlement breakdown contained only a one-line total of the costs, and the administrator never received a detailed breakdown. The settlement breakdown was signed by one of the respondent's employees as "Legal Assistant to Abigail R. Williams."
c. Count four. In a third case, the respondent represented the personal representative of an estate in a medical malpractice action. The case was settled as to two defendants. After trial, judgment entered in favor of the third defendant. The client did not receive any proceeds from the second settlement but believed that, by agreement, the respondent was withholding funds to cover the expenses of the appeal. In September 2016, the respondent's firm filed a notice of appeal. The notice was filed thirty-two days after the judgment. A full year after filing of the notice, the client inquired about the status of the appeal, and the respondent replied, "we are still trying to perfect the record," and "the guy working on it with us is almost done with his portion." But nothing substantive was being done to advance the appeal.
In November 2017, the defendant served a motion to dismiss the appeal, in part because the notice of appeal was untimely. See Mass. R. A. P. 4 (a) (1), as amended, 464 Mass. 1601 (2013) (thirty-day deadline). On January 29, 2018, defense counsel filed the motion to dismiss and represented in an affidavit that no opposition had been received. See Rule 9A of the Rules of the Superior Court (2016). The court allowed the motion, and the appeal was dismissed on February 1, 2018. In sum, the record reflects that a notice of appeal was filed late and that no substantive efforts were made to prosecute the appeal. The respondent never told the client about the dismissal. The client had to learn this fact through others.
In September and October 2018, seven months after the appeal was dismissed, the client asked the respondent multiple times for documentation and for payment of settlement funds remaining from prior settlements with other defendants in the case. The respondent provided a settlement breakdown that contained a total for costs related to the appeal but did not include a detailed statement of those costs. The settlement breakdown asserted $18,819.09 in costs related to the failed appeal, which costs had been deducted from the client's payment. In fact, the true costs related to the failed appeal amounted to $8,000.76, a difference of $10,818.33. The respondent does not dispute the proper amount of these costs.
3. Sufficiency of the evidence of misconduct. We "review the record to determine whether the single justice's decision is supported by sufficient evidence, free from errors of law, and free from any abuse of discretion." Matter of Zankowski, 487 Mass. 140, 144, 164 N.E.3d 898 (2021)...
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