In the Matter of Joseph Patrick Fingliss, Jr.

Based on a stipulation, the respondent was suspended from the practice of law for five months with leave to file a petition for reinstatement after two months. The misconduct included charging a client’s trust for non-legal work at the respondent’s rate for legal work and otherwise taking excessive legal and fiduciary fees, neglecting the trust assets, and making unauthorized charitable donations from the trust. At the time of the suspension, the respondent had been suspended for misconduct in another matter.

SUMMARY[1]

From about 2009 to 2014, the respondent represented an elderly client in various estaterelated matters on an hourly fee basis of $250 per hour. For most of that period, the respondent also served as trustee of an inter vivos trust drafted for the client by another lawyer. The client had a house and a substantial investment portfolio that was managed by a local bank, and the respondent held some trust funds in a bank account.

The client was the sole life beneficiary of his trust. The trust declaration provided further that, after the client’s death, the house was to be sold and the proceeds paid to a designated church. The trust income was to be used after death to pay for perpetual care of family graves and to make annual payments of $1,000 each to two named churches. In any years after the client’s death in which the trust principal exceeded $1 million, the net income was to be paid to designated friends of the client’s and, after their deaths, to the two named churches. The trust instrument authorized compensation to the trustee, who was required to render annual accounts to the beneficiaries. There were no provisions for the ultimate disposition of the trust principal or for termination of the trust.

Between January 2009 and March 2014, the respondent billed at least $40,000 in hourly fees for his services as attorney and trustee on an hourly basis and paid himself at least that amount from the trust funds. The respondent’s claimed hourly fees included charges for nonlegal services such as picking up mail, paying bills and cleaning out the house, but he paid himself for all those services at his legal rate of $250 per hour. In addition, the respondent received over $36,000 in quarterly payouts made by the bank from the client’s funds and issued on the respondent’s authorization as fiduciary fees. The total fees charged and collected by the respondent during that period, amounting to over $76,000, were clearly excessive.

The client died in in the spring of 2014, at which time the trust principal was valued at less than $1,000,000. The respondent continued to serve as trustee thereafter but failed to complete the sale of the client’s house and ensuing distribution of the proceeds, as required under the trust, until early 2017. In the meantime, the house sustained water damage requiring substantial repairs for which the respondent made payment from the trust funds. He obtained only partial insurance reimbursement for the repair costs. The respondent also expended trust funds for maintenance and other costs associated with the extended retention of the house.

Between the spring of 2014 and the summer of 2017, the respondent made over $43,000 in charitable donations from the trust funds. Those post-death donations were not authorized under the terms of the trust. In addition, the respondent paid himself $13,750 in claimed hourly fees, including fees at his legal rate for non-legal services, and received another $32,500 in quarterly payments from the bank. All those payments were made from trust funds. The postdeath fees charged and collected by the respondent were clearly excessive. The respondent failed to render the required annual accounts to the beneficiaries during that period.

By an order entered in June 2017 and effective in July 2017, the respondent had been suspended from practice in Massachusetts for a year and a day based on misconduct in other cases. Matter of Fingliss, 33 Mass. Att'y Disc. R. ___ (2017). The respondent resigned as trustee of the client’s trust at that time, and a new trustee was appointed.

In mitigation, the respondent made a substantial payment to the trust as a fee refund and compensation for the delayed house sale. The trust beneficiaries subsequently reached an agreement for termination of the trust and distribution of the remaining trust assets. The respondent did not seek reinstatement from the prior suspension.

This matter came before the Board of Bar Overseers on the parties’ stipulation of facts and rule violations and an agreed recommendation that the respondent be suspended for five months for his misconduct in the client’s case, to take effect on the entry date of a final order. The parties recommended further that the respondent be allowed to petition for reinstatement three months before the expiration of the second suspension. The board voted to accept the stipulation and recommendations. On January 16, 2019, the Court entered an order for the respondent’s suspension for five months, effective immediately, with leave to file a reinstatement petition no earlier than three months before the expiration of the five-month suspension.