Eighty-one year old Revere attorney Frederick C. Diamond was recently suspended from the practice of law by the Board of Bar Overseers (BB0) for six months for a series of errors involving the transfer of a home into an irrevocable trust and a subsequent application for MassHealth.
In 2005, Attorney Diamond was approached by a client with the request that he prepare an irrevocable trust to shelter her aunt's house. The aunt suffered from dementia and depression. Attorney Diamond never met her "nor did he attempt to determine if she was acting under undue influence."
Nevertheless, Attorney Diamond prepared the trust which was for the benefit of his client. In addition, three days before recording the deed and trust at the registry of deeds, Attorney Diamond recorded a mortgage and loan documents purportedly reporting a $300,000 loan to the aunt. It's unclear from the report whether the money was ever lent or whether it went to the client rather than her aunt.
In any case, the aunt then applied for MassHealth coverage of her nursing home costs and was denied based on the transfer of the house. Attorney Diamond represented the aunt both on an administrative appeal and subsequent appeal to superior court, arguing undue hardship because the aunt could not undue the trust. The BBO report doesn't say what happened on appeal, but under the circumstances, it certainly sounds like a losing argument.
Ultimately, the nursing home sued both the aunt and the client for its $200,000 in unpaid bills. Attorney Diamond responded representing both of them, despite the fact that they have differing interests.
The BBO found that Attorney Diamond violated multiple provisions of the Massachusetts Rules of Professional Conduct involving conflict of interest, failure to take adequate steps to determine the competence of the aunt and that she was not under undue influence, and failure to determine the truth of the facts he alleged both in the MassHealth appeal and the defense against he nursing home claim.
The BBO felt that Attorney Diamond's age and the fact that he had no personal gain as a result of his misconduct were mitigating factors, but also noted that he had been disciplined twice in the past.
All in all, this is a case study in what not to do when representing elderly clients, doing long-term care planning, and representing clients before MassHealth. Click here to read the entire decision.