Bar Counsel vs. Henry Lebensbaum

Summary of Henry Lebensbaum Suspension Order (PDF)
NO. BD-2005-083, IN RE:HENRY LEBENSBAUM S.J.C. Order of Term Suspension entered by Justice Cordy on November 15, 2005, with an effective date of December 15, 2005.

COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS
OF THE SUPREME JUDICIAL COURT

Petition for Discipline

1. This petition is brought pursuant to Rule 4:01, Section 8(3), of the Rules of the Supreme Judicial Court and Sections 3.13(2) and 3.14 of the Rules of the Board of Bar Overseers.
2. The respondent, Henry Lebensbaum, is an attorney who was duly admitted to the Bar of Massachusetts on June 19, 1991
3. In April 2001, •••••••••• •••••••• ("S•••") engaged the respondent to represent her in a divorce from her husband, ••••••• •••••••• ("L•••").
4. In March 2001, S••• and L••• entered into an agreement whereby L••• agreed to provide S••• with an automobile and pay the rent for the Haverhill apartment, while S••• agreed to move out of the marital home on H•••••••• Road in Andover.
5. At the time S••• contacted the respondent in April 2001, she and L••• had been separated for several weeks. L••• was living in the marital home in Andover, while S••• was living in an apartment in Haverhill.
6. On April 25, 2001, the respondent, on behalf of S•••, filed a divorce action in the Essex County Probate Court in Salem. On May 16, the parties entered into a stipulation for temporary orders, barring either party from disposing of or wasting marital assets. On the same day, the court issued an order incorporating the stipulation.
7. Shortly after the respondent began representing S•••, the respondent and S••• became involved in a sexual relationship. The sexual relationship continued from May 2001 until January 2002. During this time period, the respondent and S••• had sexual relations on numerous occasions.
8. The respondent did not at any time advise S••• that his interest in a personal relationship with her might or would affect his professional responsibilities to her.
9. The respondent did not inform S••• that revelation of the relationship to L••• and his attorney could or would compromise her position in the divorce.
10. The respondent could not have reasonably believed that his representation of S••• would not be materially limited by his interest in maintaining a sexual relationship with her.
11. S••• did not give her informed consent to the respondent's conflict of interest.
12. On May 30, 2001, S••• learned that L••• was out of the country. S••• decided to return, with her son, to the marital home in Andover. Without the knowledge or consent of L•••, S••• and her son moved into the Andover home on about June 1, 2001.
13. L••• came back to town on or about June 7, 2001, and discovered that S••• was living in the house. He promptly filed a motion in the Essex County Probate Court seeking an order that S••• vacate the premises. The court granted L•••'s motion on June 8, 2001, and ordered that S••• vacate the premises by June 9, 2001 at 6:00 p.m.
14. While S••• was packing to vacate the premises on June 9, 2001, the respondent went to the Andover house. The respondent knew that S••• had moved into the marital home without her husband's permission and that the court had ordered her to vacate the home by 6:00 p.m. that day.
15. On June 9, 2001, S••• and the responded entered a locked ground floor room that served as the office of L•••'s contracting business. In the respondent's presence, S••• searched the office and located $2000 in cash, wrapped in aluminum foil, which appeared to them to have been purposely hidden.
16. The respondent advised S••• that she and L••• jointly owned the cash. Based on the respondent's advice that the money was joint property, S••• took $1900, and returned the remaining $100 to its original hiding spot. The respondent did not adequately advise S••• of the legal risks of taking the money. The respondent did not advise S••• that if she did take the money, the court order of May 16 obligated her to preserve it as marital assets.
17. While in L•••'s office, the respondent, or S••• with the respondent's knowledge, logged on to L•••'s computer, and searched his computer files for financial records of his contracting business. Upon locating such records, the respondent, or S•••'s with the respondent's knowledge, sent several e-mails to the respondent's office e-mail address, to which they attached or attempted to attach business financial records. The respondent did not adequately advise S••• of the legal risks of logging on to L•••'s computer and e-mailing L•••'s documents to the respondent.
18. L••• moved back into the house on June 10, 2001. He discovered that $1900 in cash was missing and that e-mails had been sent from his account to the respondent's e-mail address. L••• filed a police report accusing S••• of stealing the money, and of unauthorized use of his computer.
19. In June 2001, Andover police officer Glen Ota, requested a clerk's hearing, on charges against S••• for larceny over $250 in violation of G. L. c. 266, § 30, and unauthorized access to a computer system in violation of G. L. c. 266, § 120(f).
20. The clerk's hearing took place on July 19, 2001. The respondent entered an appearance for S••• and represented her at the clerk's hearing
21. The respondent's interests materially limited his representation of S••• at the clerk's hearing because of the respondent's presence during the acts charged as criminal offenses. The respondent could not have reasonably believed that his representation of S••• would not be materially limited. Even if the respondent could have continued to represent S•••, he did not obtain her informed consent.
22. The respondent was likely to be a necessary witness at the clerk's hearing to S•••'s state of mind at the time she allegedly committed the crimes charged.
23. On July 30, 2001, the clerk issued complaints against S••• for larceny over $250 and unauthorized access to a computer system.
25. S••• was arraigned on those charges on September 12, 2001. The respondent continued to represent S••• with respect to the criminal charges until March 2002.
26. The respondent did not advise S••• that his representation of her in the criminal matter was or might be materially limited by his own interest in concealing his presence at the time the cash was taken, the computer files were accessed and the e-mails were sent to his office, and by his personal relationship with her. The respondent could not reasonably have believed that his representation of S••• would not be materially limited by his own interests.
27. S••• did not at any time give her informed consent to the respondent's conflict of interest in representing her in the criminal matter.
28. On July 25, 2001, S••• and L••• filed a stipulation in the Essex County Probate Court in which L••• agreed to deliver to S••• by July 27, 2001, two round-trip tickets from Boston to Columbia that had been issued by Continental Airlines on February 12, 2001.
29. L•••'s attorney delivered the tickets to the respondent on August 31, 2001.
30. The respondent did not deliver the tickets to S•••.
31. The respondent initially made a number of excuses to S••• for not delivering the tickets and then falsely told S••• he had misplaced the tickets.
32. In the alternative, the respondent negligently misplaced the tickets.
33. S••• terminated the respondent's representation of her in March 2002. In March 2002, S••• went to his office to retrieve her file. She found the plane tickets, enclosed in a bright blue plastic travel agency envelope, in her file.

Disciplinary Violations

34. By engaging in a sexual relationship with S••• during a period of time in which he was representing her in her divorce from L•••, the respondent engaged in a conflict of interest, in violation of Mass. R. Prof. C. 1.7(b), as set forth below.
35. The respondent's failure to explain to S••• the legal risks of taking cash from L•••'s office and logging onto and e-mailing financial records from L•••'s computer on June 9, 2001, to the extent reasonably necessary to allow her make an informed decision, violated Mass. R. Prof. C. 1.4, as set forth below.
36. The respondent's failure to advise S••• that if she took cash from L•••'s office, the probate court order prohibited her from wasting it, also violated Mass. R. Prof. C. 1.4, as set forth below.
37. By e-mailing, or participating in S•••'s unauthorized e-mailing, of L•••'s business financial records to his e-mail address, in order to obtain information relevant to the divorce proceedings, the respondent violated L•••'s legal rights, in violation of Mass. R. Prof. C. 4.4, as set forth below.
38. The respondent's representation of S••• in a criminal matter in which the respondent had a personal interest in concealing his participation in the allegedly unlawful conduct, and while the respondent was involved in a personal relationship with S•••, and his failure to obtain informed consent if informed consent was possible, violated Mass. R. Prof. C. 1.7(b), as set forth below.
39. The respondent's representation of S••• in a criminal matter in which the respondent was likely to be a necessary a witness, violated Mass. R. Prof. C. 3.7(a), as set forth below.
40. By failing to safeguard and by failing to promptly deliver to S••• airplane tickets that had been delivered to the respondent on behalf of S•••, the respondent violated Mass. R. Prof. C. 1.3, and Mass. R. Prof. C. 1.15(b)(3) and (c), as set forth below
41. In the alternative, by falsely telling S••• that he had misplaced the tickets and by intentionally withholding the airplane tickets from S•••, the respondent violated Mass. R. Prof. C. 1.15(c), and 8.4(c) and (h), as set forth below.
42. The Rules of Professional Conduct applicable to the respondent's conduct are as follows:

Rule 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client. The lawyer should represent a client zealously within the bounds of the law.

Rule 1.4 Communication

2. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 1.7 Conflict of Interest: General Rule

2. A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
   
   
   1. the lawyer reasonably believes the representation will not be adversely affected; and
   2. the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Rule 1.15 Safekeeping Property

1. Segregation of Trust Property. A lawyer shall hold trust property separate from the lawyer's own property.
   
   
   1. Trust funds shall be held in a trust account, except that advances for costs and expenses may be held in a business account.
   2. No funds belonging to the lawyer shall be deposited or retained in a trust account except that:
      
      
      1. Funds reasonably sufficient to pay bank charges may be deposited therein, and
      2. Trust funds belonging in part to a client or third person and in part currently or potentially to the lawyer shall be deposited in a trust account, but the portion belonging to the lawyer must be withdrawn at the earliest reasonable time after the lawyer's interest in that portion becomes fixed. A lawyer who knows that the right of the lawyer or law firm to receive such portion is disputed shall not withdraw the funds until the dispute is resolved. If the right of the lawyer or law firm to receive such portion is disputed within a reasonable time after notice is given that the funds have been withdrawn, the disputed portion must be restored to a trust account until the dispute is resolved.
   3. Trust property other than funds shall be identified as such and appropriately safeguarded.
2. Prompt Notice and Delivery of Trust Property to Client or Third Person. Upon receiving trust funds or other trust property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or as otherwise permitted by law or by agreement with the client or third person on whose behalf a lawyer holds trust property, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive.

Rule 4.4 Respect for Rights of Third Persons

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

3. engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
8. engage in any other conduct that adversely reflects on his or her fitness to practice law.

WHEREFORE, Bar Counsel requests that the Board of Bar Overseers:

1. Consider and hear the matter set forth herein.
2. Determine that public discipline of the said Henry Lebensbaum is required.
3. If required, file an Information concerning these matters with the Supreme Judicial Court.

Dated: January 26, 2005