|(January 22, 2010, Boston, MA) - Charles M. Waters, an attorney in the Boston office of Sheehan Phinney Bass + Green PA, successfully represented family members in a guardianship case where the family objected to $550,000 in fees charged by a temporary guardian and his attorney.
The case involved the 2005 death of Cape Cod millionaire Kenneth Simon who suffered from a debilitating disease that eventually led a judge to deem him incompetent and appoint a temporary guardian. The temporary guardian, Attorney E. James Veara hired Attorney Gerald L. Nissenbaum to represent him and the two attorneys proceeded to litigate various issues within the temporary guardianship for 83 days until Simon died. During this time, the attorneys paid themselves over $550,000 in fees.
Plymouth Massachusetts Probate and Family Court Judge Stephen C. Steinberg ruled the two lawyers had engaged in a strategy "to use the legal process to intimidate anyone who got in the way of their agenda." In a detailed 32-page decision, the Court found that the attorneys conduct was "improper" and "egregious", and that they "wildly spent the ward's money", charged "outrageous fees" and used "the legal process to intimidate anyone who got in the way of their agenda." Specifically the Court found that the Temporary Guardian "increased his hourly rate simply because he knew he could and because the ward could afford it," that the attorneys "attempted to bully" opposing counsel, that they fundamentally "used the wrong standard" for making decisions for the ward, that they were "not concerned for the ward" and acted in a manner "detrimental to the ward's interests." The Court determined that the attorneys "took all of these steps because they knew the ward was going to die [and] they wanted to make sure they spent every last dime they could before they would no longer have control of the ward's assets."
The Court ordered Attorneys Veara and Nissenbaum to pay back to the ward's estate approximately $350,000 (not including interest, costs and attorneys fees).
Charles M. Waters said while the conduct exhibited by Nissenbaum and Veara reflects poorly on the bar, the ruling will have a positive effect in the long run. "There's no doubt that the judge wanted to make clear to all court-appointed fiduciaries that, ultimately, they will be held accountable for their fees and their conduct," he noted. "That's an important message to get out there to all practitioners."
J. Owen Todd, who served as co-counsel with Waters, is a former Superior Court Judge who practices at Todd & Weld in Boston, said the case was unlike any other in which he has been involved. Todd comments "These two lawyers were motivated by greed and had no problem engaging in bullying tactics aimed at dissuading family members from retaining counsel. I've never seen anything like this."
Waters added, "This decision sends a particularly strong message to court-appointed fiduciaries (and those that represent them) that their conduct and fees charged are ultimately reviewed by the Court that appoints them, and that attorneys will be held accountable for ‘outrageous' fees and ‘egregious' conduct. The Court emphasized that having access to a wealthy ward's assets does not give a court-appointed fiduciary carte blanche to spend money, pay themselves handsomely, and bully and intimidate everyone in the process."
Attorney Waters is an experienced trial attorney representing corporations, partnerships, trusts, estates and individuals involved in a wide range of disputes. He has tried many cases in Massachusetts state and federal courts, arbitration proceedings and administrative hearings. He has also briefed and argued cases before the Massachusetts Supreme Judicial Court and Appeals Court. He obtained one of the largest trial awards ($2.43 million) in Massachusetts in 2006.
Sheehan Phinney is a full service law firm representing national and international clients with innovative approaches and practical solutions. Founded in 1937, the firm has grown to 61 attorneys with four offices throughout New Hampshire and Massachusetts. The firm is known for professional excellence, practical counsel and commitment to both its clients and the communities it serves.