A client signed a fee agreement with an attorney for representation in her divorce. On June 26, 2013, as a condition of the signed fee agreement, the client tendered to the attorney $8,000.00 as a retainer for a divorce case and for a real estate closing. Upon receipt of the check, the attorney deposited the funds into her Interest on Lawyer’s Trust Accounts (“IOLTA”).
The following day, the attorney withdrew $5,500.00 and used it for purposes unrelated to the client. At this time, the attorney had neither earned this money, nor sent a bill to the client. Over the next month, the attorney continued to withdraw funds from the IOLTA until the account balance was approximately $1,000.00.
In early December 2013, the client terminated the attorney-client relationship. At the time of termination, the attorney had spent all but $500.00 of the money she had withdrawn, failed to provide the client with an accounting of the funds and did not return the $500.00 for several months.
The client reported the attorney to the Board of Bar Overseers, who subsequently found violations, including the following:
- By withdrawing from her IOLTA account and misusing the client’s funds, knowing that she had not earned those funds, the attorney failed to hold trust funds in a trust account, in violation of Mass.R.Prof.C. 1.15(b)(1); and intentionally misused trust funds, in violation of Mass.R.Prof.C. 8.4(c) and (h).
- By failing to promptly render to her client a full written account of his retainer funds upon his request, the attorney violated Mass.R.Prof.C. 1.15(d)(1).
- By failing to refund the unearned portion of the retainer at the termination of the representation, the attorney violated Mass.R.Prof.C. 1.16(d).
Bar counsel then reached an agreement with the attorney under which she would stipulate to the facts and receive a 1 year suspension, six months of which would be stayed for two years. As a condition of staying the suspension, the attorney was required to execute and comply with an accounting probation agreement. On July 11, 2016, the Supreme Judicial Court entered an Order, affirming the agreement.
The case is: In Re Marcia Rose Calcagni