In the Matter of Williams ( 2023 )

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SJC-13268
IN THE MATTER OF ABBY R. WILLIAMS.
February 23, 2023.
Attorney at Law, Disbarment, Misuse of client funds.
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
1 We have reviewed the respondent's preliminary memorandum
and appendix, as well as the record that was before the single
justice. Pursuant to S.J.C. Rule 2:23, 471 Mass. 1303 (2015),
we dispense with further briefing and oral argument.
2 Specifically, as to counts one and two, the petition
alleged that the respondent's conduct violated Mass. R. Prof. C.
1.15 (b) (segregation of trust property), 1.15 (c) (prompt
notice and delivery of trust property to client or third
person), 1.15 (d) (1) (accounting), 1.15 (d) (2) (accounting),
and 1.15 (f) (1) (C) (individual client records), as appearing
2
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
in 471 Mass. 1380 (2015) and 440 Mass. 1338 (2004); Mass. R.
Prof. C. 5.1 (a) (managerial authority over lawyers) and 5.1 (b)
(supervisory authority over lawyers), as appearing in 471 Mass.
1445 (2015) and 426 Mass. 1405 (1998); Mass. R. Prof. C. 5.3 (a)
(managerial authority over nonlawyers) and 5.3 (b) (supervisory
authority over nonlawyers), as appearing in 471 Mass. 1447(2015) and 426 Mass. 1408 (1998); and Mass. R. Prof. C. 8.4 (c)
(dishonesty, fraud, deceit, or misrepresentation), 8.4 (d)
(conduct prejudicial to administration of justice), and 8.4 (h)
(fitness to practice law), as appearing in 471 Mass. 1483(2015), and as amended, 429 Mass. 1301 (1999). As to count
four, the petition alleged violations of the same rules except
that it did not allege a violation of Mass. R. Prof. C.
1.15 (d) (2); in addition, it alleged violations of Mass. R.
Prof. C. 1.1, as appearing in 471 Mass. 1311 (2015)
(competence), and Mass. R. Prof. C. 1.3, as appearing in 471
Mass. 1318 (2015) (diligence).
3 With respect to the remaining counts, the petition alleged
that the respondent failed to properly make or maintain a three-
way reconciliation of her Interest on Lawyers' Trust Account
(IOLTA), failed to make or maintain a proper check register for
her IOLTA, failed to make or maintain individual client ledgers
and a ledger of personal funds in her IOLTA for fees and
expenses, failed to cooperate with bar counsel's investigation,
and failed to comply with the order of administrative suspension
issued by the single justice. In an amended answer filed
shortly before her hearing, the respondent admitted these
violations.
4 The board did not adopt the hearing committee's conclusion
with respect to count one that providing a false settlement
breakdown to a private client was prejudicial to the
administration of justice in violation of rule 8.4 (d). That
finding is not specifically at issue here, and so we do not
separately address it.
3
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
4
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-
5
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.
5 By the time she was repaid, the employee had ceased
working for the respondent.
6
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 (2021), quoting Matter of Tobin, 417 Mass. 92, 99
(1994). "The subsidiary facts found by the board must be upheld
'if supported by substantial evidence'" in the record. Matter
of Zankowski, supra, quoting S.J.C. Rule 4:01, § 8 (6).
"'Substantial evidence' means such evidence as a reasonable mind
might accept as adequate to support a conclusion." Matter of
Slavitt, 449 Mass. 25, 30 (2007), quoting G. L. c. 30A, § 1 (6).
Moreover, "[w]e will not disturb the hearing committee's
credibility determinations," as "[t]he hearing committee . . .
is the sole judge of credibility, and arguments hinging on such
determinations generally fall outside the proper scope of our
review." Matter of Diviacchi, 475 Mass. 1013, 1018-1019 (2016),
quoting Matter of McBride, 449 Mass. 154, 161-162 (2007). As to
its conclusions regarding the alleged violations, "the hearing
committee's ultimate findings and recommendations, as adopted by
the board, are entitled to deference, although they are not
binding on this court." Matter of Laroche-St. Fleur, 490 Mass.
1020, 1023 (2022), quoting Matter of Diviacchi, supra at 1019.
The respondent does not dispute any facts found by the
board, nor does she dispute the figures determined by the board
to be the appropriate amount of costs in the cases at issue. On
the contrary, the respondent states, "There was no dispute that
the expenses were inflated. The question was who inflated them,
Respondent or Annenberg." The respondent contends that her
"inattention to these finances allowed Annenberg to steal client
funds by improperly inflating the expenses related to the three
matters at issue." In sum, the respondent does not dispute the
facts found by the hearing committee and adopted by the board
7
but argues that they were insufficient to establish that she
personally and intentionally committed the contested violations.
Drawing on her argument that the evidence was insufficient
to demonstrate her own culpability, the respondent concludes
that the single justice improperly shifted the burden of proof.
She argues that the single justice improperly required that she
affirmatively demonstrate that it was Annenberg who inflated
client expenses. We disagree. The single justice concluded
that "there was substantial evidence that it was the respondent
who intentionally charged inflated expenses on the three matters
at issue, that she was aware that the expenses were inflated,
and that she was motivated in part by financial pressures on her
firm."
This conclusion is supported by ample evidence in the
record, and we agree with the single justice that the evidence
warrants the conclusion that the misconduct at issue was
committed personally and intentionally by the respondent. See
Matter of London, 427 Mass. 477, 482-483 (1998) (finding no
burden shifting, and holding "intent to deprive is a permissible
inference" from "false accountings"). In particular, the
respondent, not Annenberg, was responsible for the management
and calculation of costs for medical malpractice cases. And as
to all three disputed counts, the respondent was responsible for
providing settlement breakdowns that falsely inflated costs.
See Matter of McBride, 449 Mass. at 162 (finding misleading
letters drafted at instruction of respondent to be respondent's
attempt to hide misappropriation of payments owed to clients);
Matter of London, supra. With respect to count two, the
respondent used the inflated costs to repay a loan that she had
taken. And although the respondent argues that her "inattention
to these finances allowed Annenberg to steal client funds," the
misconduct related to the late-filed appeal in count four did
not occur until years after Annenberg had left her firm.
Moreover, the respondent's attempts to deflect blame to
Annenberg largely depended, as the single justice observed, upon
her own credibility. But the hearing committee is the sole
judge of credibility, see Matter of Diviacchi, 475 Mass. at
1018-1019, and it expressly found the respondent's credibility
to be lacking on these precise points. "The hearing committee
was under no obligation to believe the respondent's version of
the facts" in the face of all the evidence to the contrary, and
so there was no "impermissible shift of the burden of proof to
the respondent." Matter of London, 427 Mass. at 483. See
Matter of Moore, 442 Mass. 285, 291 (2004) ("The disputed
8
findings were made on ample evidence and were based in large
part on the credibility determinations of the hearing
committee"); Matter of Macero, 27 Mass. Att'y Discipline Rep.
554, 561-562 (2011) (finding no burden shifting where, as
between "natural inference" and respondent's "implausible
testimony . . . to explain away these facts, the committee"
properly "drew the natural inference"). There was no error in
the single justice's determination that the respondent engaged
in the misconduct determined by the board.
4. Appropriate sanction. We review de novo the
disciplinary sanction imposed by the single justice to determine
whether it "is markedly disparate from judgments in comparable
cases." Matter of Slavitt, 449 Mass. at 30, quoting Matter of
Finn, 433 Mass. 418, 423 (2001). See Matter of Greene, 476
Mass. 1006, 1008 (2016). "When an attorney 'intended to deprive
the client of funds, permanently or temporarily, or if the
client was deprived of funds (no matter what the attorney
intended), the standard discipline is disbarment or indefinite
suspension.'" Matter of McBride, 449 Mass. at 163, quoting
Matter of Schoepfer, 426 Mass. 183, 187 (1997). Where
deprivation is ongoing, as the hearing committee and the board
found that it is with regard to the three disputed counts, the
presumptive sanction is disbarment. See Matter of Ablitt, 486
Mass. 1011, 1017 (2021); Matter of Bryan, 411 Mass. 288, 291-292
(1991). And we give deference to the board's recommendation,
which in this case is disbarment. Matter of Hoicka, 442 Mass.
1004, 1006 (2004).
Disbarment is particularly appropriate where the
misappropriation of client funds is accompanied by presence of
"numerous aggravating factors" and "the absence of any
mitigating factors." Matter of McBride, 449 Mass. at 164.
Here, the single justice found no mitigating factors and found
multiple aggravating factors, all of which are supported by
substantial evidence in the record, including the respondent's
experience as an attorney and her lack of candor before the
hearing committee. The single justice also properly considered
the cumulative effect of the respondent's multiple violations in
different cases. See Matter of Hrones, 457 Mass. 844, 855
(2010), citing Matter of Saab, 406 Mass. 315, 326-327 (1989).
Another aggravating factor is the respondent's failure to
recognize her own obligations and her repeated attempts to blame
others, particularly Annenberg, as described above. This
court's admonition in Matter of Ablitt, 486 Mass. at 1019, is
applicable here:
9
"A bar discipline proceeding is not a forum best used
broadly to cast blame or aspersions on others. It is a
proceeding with a narrow focus: to determine whether there
is a preponderance of evidence that an attorney has
violated one or more rules of professional conduct and, if
so, what sanction is warranted. The respondent's continued
focus in these proceedings on matters other than the
charged misconduct does [the respondent] a disservice
because evidence of misconduct is neither excused nor
obscured by accusations of misconduct by others."
For all the foregoing reasons, we agree with the single
justice that disbarment was the appropriate sanction and not
"markedly disparate from judgments in comparable cases." Matter
of Slavitt, 449 Mass. at 30, quoting Matter of Finn, 433 Mass.
at 423.
5. Conclusion. The evidence was sufficient to establish
that the respondent personally and intentionally misappropriated
client funds with deprivation resulting. Disbarment is
warranted.
Judgment affirmed.
The case was submitted on the record, accompanied by a
memorandum of law.
Alan E. Brown for the respondent.