Disciplinary Decisions

IN RE: MATTER OF DAMIEN J. MARTIN BBO NO. 633174

The following opinion was posted at the time it was issued. It may be subject to appeal and may not be the final decision in the case. Readers are advised to check the BBO and SJC websites for more information.

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

BAR COUNSEL, Petitioner vs. B.B.O. File Nos. C6-23-00277468 C4-23-00280756 DAMIEN J. MARTIN, ESQ., C4-24-00281926

Respondent

HEARING REPORT On October 22, 2024, bar counsel filed a three-count petition for discipline against the respondent. Count One charged (among other things) that the respondent represented a client (Mayhew) for a civil matter, but in February 2021, after Mayhew was hospitalized and later arrested and charged with murder, he agreed to manage her personal affairs under a durable power of attorney (DPOA). In the following several months, he paid himself $11,000 from her funds, billing both legal and substantial non-legal tasks at his hourly legal rate. He also failed to have writings that communicated the scope of his representation and the basis or rate of his fees in the two matters. Count Two charged (among other things) that, after being retained by a second client (Sean Janes) in two matters, the respondent deposited the retainers in his operating account (instead of his IOLTA account) and thereafter withdrew and spent the commingled funds before they were earned. He also failed to take timely steps in either matter and agreed to pay Janes $10,000 to settle a claim arising from one matter. When Janes later complained to bar counsel in 2023, the respondent made false statements to bar counsel. Count Three charged (among other things) that Raymond Marier hired Martin to handle a

personal injury case. After the defendant later agreed to settle for $12,000 (which Marier accepted), the respondent failed to finalize the settlement and Mairer’s case was dismissed. Appearing pro se, the respondent filed an answer on December 9, 2024. The answer did not assert any factors in mitigation. See Rules of the Board of Bar Overseers (BBO Rules) § 3.15(f). On June 6, 2025, the parties filed a joint stipulation, pursuant to which respondent admitted to all of the allegations made in the petition, with the exception of the following paragraphs in Count Two of the Petition: 32, 37, 38, 40, 41, 53, 59, 61 and 62. (Ex. 9). A disciplinary hearing was held remotely on June 11, 2025. Bar counsel called Sean Janes and the respondent as witnesses; the respondent also testified on his own behalf. Nine exhibits were admitted into evidence, three of which (Exhibits 5, 6 and 7) were medical records of the respondent and were impounded by an order of the Board. On August 5, 2025, the first assistant bar counsel submitted his proposed findings of fact, conclusions of law and sanction recommendation (PFCs). On August 8, 2025, the respondent advised general counsel’s office that he would not be filing PFCs. COUNT I—FINDINGS OF FACT 1 1. The respondent, Damien J. Martin, Esq., is an attorney duly admitted to the Bar of the Commonwealth on December 19, 1996. (Ans. ¶ 2). He had been practicing law for about twenty years at the time of the earliest event giving rise to his misconduct. (Ans. ¶ 63, he was retained in January 2017).

1 The transcript is referred to as “Tr. __”; the matters admitted in the answer are referred to as “Ans. ¶ _”; and the hearing exhibits are referred to as “Ex. _.” The matters admitted by the answer include those deemed admitted as a result of the respondent’s failure to deny them in accordance with B.B.O. Rules § 3.15(d). See Matter of Moran, 479 Mass. 1016, 1018, 34 Mass. Att’y Disc. R. 376, 379 (2018). We have considered all of the evidence, but we have not attempted to identify all evidence supporting our findings where the evidence is cumulative. We credit the testimony cited in support of our findings to the extent of the findings, and we do not credit contradictory testimony. In some instances, we have specifically indicated testimony that we do not credit.

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2. At all relevant times, the respondent was a sole practitioner without the assistance and support of any staff member. (Tr. 20-21, respondent). He nevertheless tried to juggle a caseload of between 40 and 90 matters at any given time. (Tr. 21-22, respondent; see also Tr. 59 (“I tried to keep all the balls in the air.”), respondent). 3. In or about the fall of 2020, Brenda Mayhew (“Mayhew”) retained the respondent to represent her interests in a consumer protection matter. (Ans. ¶ 3). 4. On February 4, 2021, in response to Mayhew’s request for information about the status of the consumer protection matter, the respondent communicated that he was preparing a demand letter. He requested a meeting with Mayhew for the following week. (Ans. ¶ 4). 5. On or about February 8, 2021, prior to their anticipated meeting, the respondent was informed that Mayhew was in the hospital in connection with her involvement in the fatal stabbing of another person (“the Criminal Matter”). The respondent contacted the police department and stated that he represented Mayhew. (Ans. ¶ 5). 2 6. The respondent’s representation of Mayhew in the Criminal Matter began on February 8, 2021 and ended on February 16, 2021. (Ans. ¶ 7). 7. The respondent failed to communicate to Mayhew in writing the scope of his representation and the basis or rate of his fee for the Criminal Matter. (Ans. ¶ 6). 8. The respondent did not make and maintain contemporaneous time records for his services provided to Mayhew in the Criminal Matter. (Ans. ¶ 8). 9. On February 16, 2021, Mayhew asked the respondent to manage her personal affairs

2 While it plays no role in our decision, we take administrative notice of the fact that, on February 8, 2021, police went to a residence in Palmer, Mass. in response to a 911 call. Marcia Wilson was found dead and her husband (David Wilson), as well as Mayhew, were found suffering from stab wounds. Mayhew was later charged with and convicted, in June 2024, of first-degree murder. (She was also convicted of witness intimidation and assault and battery on David Wilson.) Her conviction is currently on appeal.

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during the pendency of the Criminal Matter. The respondent agreed to do so. (Ans. ¶ 10). 10. Pursuant to Mass. R. Prof. C. 5.7(a), the respondent was subject to the Rules of Professional Conduct with respect to his provision of the law-related services of managing Mayhew’s personal affairs. (Ans. ¶ 12). 11. The respondent did not provide Mayhew with notice in writing that his services in managing her personal affairs were not legal services and that the protections of the client-lawyer relationship did not exist. (Ans. ¶ 11). 12. The respondent failed to communicate to Mayhew in writing the scope of his representation and the basis or rate of his fee for managing Mayhew’s personal affairs. (Ans. ¶ 13). In addition, the respondent did not make and maintain contemporaneous time records for his services provided to Mayhew in managing her personal affairs. (Ans. ¶ 14). 13. On February 17, 2021, Attorney John Morris (Morris) entered his appearance on behalf of Mayhew in the Criminal Matter, and he represented Mayhew at her arraignment before the Palmer District Court. (Ans. ¶ 9). 14. On April 5, 2021, the respondent met with Mayhew at the Chicopee Women’s Correctional Center. During that meeting, Mayhew and the respondent executed a General Durable Power of Attorney in favor of the respondent that had been drafted by the respondent (“the DPOA”). (Ans. ¶ 15). 15. The respondent used the DPOA to gain control of Mayhew’s bank accounts. (Ans. ¶ 16). From April through November 2021, the respondent paid himself a total of eleven thousand dollars ($11,000) from Mayhew’s funds for his claimed fees in both the Criminal Matter and for managing her personal affairs. (Ans. ¶ 17; Ex. 2, BBO-0209 to -0212 and BBO-0218 to -0237). 16. The respondent did not provide Mayhew, on or before the date of each withdrawal for his

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claimed fees, a written itemized bill or other accounting of the services rendered, notice of the date and amount of the respective withdrawal and a statement of the balance of Mayhew’s funds after the respective withdrawal. (Ans. ¶ 18). 17. During the period from April through November 2021, the respondent’s customary hourly rate for his legal services was two hundred and fifty dollars ($250) per hour. During this period, the respondent billed for all his services to Mayhew, legal and non-legal, at the same rate. (Ans. ¶ 19; Ex. 2, BBO-0209 to -0212). 18. The fees that the respondent paid to himself from Mayhew’s funds included substantial charges for non-legal services. Such non-legal services included, inter alia, (i) traveling to Mayhew’s house to retrieve turmeric, silver and a birth certificate, (ii) meeting with Mayhew’s nieces to view the house and provide them with a key, (iii) checking the heating in the house, (iv) speaking with real estate brokers, (v) changing the locks on the house, and (vi) securing the house against a storm. (Ans. ¶ 20; Ex. 2, BBO-0209 to -0212). 19. We find that the fees charged and collected by the respondent from Mayhew’s funds during the period from April through November 2021, including the charges at his legal rate for non-legal services, were substantially unearned, unjustified and clearly excessive under the circumstances. (Ex. 9, ¶¶ 1-2). 20. In November or December 2021, Mayhew revoked the respondent’s status as her attorney-in-fact under the DPOA. (Ans. ¶ 22). 21. Beginning in March 2022 and continuing through December 2022, Morris, on behalf of Mayhew, repeatedly requested that the respondent provide a full accounting for his services and surrender Mayhew’s client file, tax documents and other property. The respondent failed to timely comply with these requests. (Ans. ¶ 23).

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COUNT ONE—CONCLUSIONS OF LAW 22. Bar counsel charged that, by failing to communicate in writing to his client, before or within a reasonable time after commencing the representation, the scope of the representation and the basis or rate of any fees and expenses to be charged or collected, the respondent violated Mass. R. Prof. C. 1.5(b). (Ans. ¶ 24). The respondent admits this rule violation and we so conclude. 23. Bar counsel charged that, by charging and collecting clearly excessive fees for his services to his client, the respondent violated Mass. R. Prof. C. 1.5(a). (Ex. 9, ¶¶ 1-2). We conclude that bar counsel has proved this charge. The respondent admits he charged his legal rate for non-legal services. This constitutes charging clearly excessive fees in violation of rule 1.5. Matter of Moran, 479 Mass. 1016, 1021, 34 Mass. Att’y Disc. R. 376, 384 (2018). 24. Bar counsel charged that, by failing to give timely written notice to his client of all his fee withdrawals, and by failing to promptly provide a full written accounting upon his client’s request, the respondent violated Mass. R. Prof. C. 1.15(d)(2). (Ans. ¶ 26). The respondent admits this rule violation and we so conclude. 25. Bar counsel charged that, by failing to make his client’s file and other property available to her within a reasonable time following her request, the respondent violated Mass. R. Prof. C. 1.15(c), 1.15A(b) and/or 1.16(d). (Ans. ¶ 27). The respondent admits these rule violations and we so conclude. COUNT II—FINDINGS OF FACT 26. In or about the fall of 2019, Sean Janes (“Janes”) retained the respondent to represent his interests in an employment discrimination matter (“the Employment Matter”). (Ans. ¶ 28). 27. In or about the fall of 2019, Janes also retained the respondent to represent his interests in

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filing a motion to seal his criminal record in Massachusetts (“the Record Sealing Matter”). (Ans. ¶ 29; Tr. 22, 30-32, respondent). 28. The respondent failed to communicate to Janes in writing the scope of his representation and the basis or rate of his fee for the Employment Matter. (Ans. ¶ 30; Tr. 28-29, respondent). 29. He also failed to communicate to Janes in writing the scope of his representation and the basis or rate of his fee for the Record Sealing Matter. (Ans. ¶ 31). 30. On September 12, 2019, Janes paid the respondent five hundred dollars ($500) as an initial retainer in the Record Sealing Matter. (Tr. 30-36, respondent; Ex. 3, BBO-0269; Ex. 8, BBO-1215). This payment was unearned when the respondent received it. (Ans. ¶ 32, admitted or not otherwise denied). 31. The respondent failed to deposit and maintain Janes’s retainer for the Record Sealing Matter in his IOLTA account or another trust account. (Ans. ¶ 35). Rather, he intentionally caused this retainer to be deposited into his operating account. (Ans. ¶ 37, admitted or not otherwise denied; Ex. 8, BBO-1215). 32. By no later than September 30, 2019, the respondent withdrew from his operating account the funds from Janes’s $500 retainer in the Record Sealing Matter and spent all of it on his own business and/or personal obligations, unrelated to his representation of Janes. These funds were unearned when the respondent withdrew and spent them. (Ans. ¶ 40, admitted or not otherwise denied; (Tr. 33-36, respondent; Ex. 8, BBO-1215). 33. As of December 31, 2019, the balance in the respondent’s operating account was negative two hundred and twenty dollars (-$220). (Tr. 36-37, respondent; Ex. 8, BBO-1216). 34. He also owed and was unable to pay the Massachusetts Department of Revenue about four thousand dollars ($4,000). Tr. at 48. Respondent admitted that he was in need of money.

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(Tr. 49, respondent). 35. On January 22, 2020, Janes paid the respondent one thousand dollars ($1,000) as an initial retainer in the Employment Matter. This payment was unearned when the respondent received it. (Ans. ¶ 33; Tr. 26-28, respondent; Ex. 3, BBO-0270; Ex. 9, BBO-1217; Tr. 26-27, respondent). 36. As before, the respondent failed to deposit or maintain Janes’s $1,000 retainer for the Employment Matter in his IOLTA account or another trust account. (Ans. ¶ 34; Tr. 26-28, respondent; Ex. 3, BBO-270; Ex. 8, BBO-1217). Rather, he intentionally caused this retainer to be deposited into his operating account, even though he knew he had not earned the retainer. (Ans. ¶ 36; Tr. 26-30, 32-34, 37, respondent; Ex. 8, BBO-1217). 37. As he had done with Janes’s $500 advanced retainer in the Records Sealing Matter, the respondent then spent Janes’s $1,000 advanced retainer on personal and business expenses unrelated to his representation of Janes. (Ans. ¶ 34; Tr. 33-34, respondent; Ex. 8, BBO-1217). 38. During the hearing before us, the respondent admitted that he had intentionally misused Janes’s retainer funds with ongoing deprivation; he never made restitution of the $1,500 to Janes. (Tr. 38 and 45, respondent.). 39. After paying the initial retainers to the respondent, Janes repeatedly requested information about the status of the Employment Matter and the Record Sealing Matter. The respondent failed to promptly comply with Janes’s requests for information. (Ans. ¶ 42). 40. The respondent failed to timely inform Janes of the statute of limitations applicable to the Employment Matter. (Ans. ¶ 43). 3

3 Based on his preliminary research, the respondent concluded that Janes did not have a viable case for wrongful termination of his employment. (Tr. 70, not viable; Tr. 78, viable, but very slim, respondent). However, he never told Janes this. (Tr. 70-71, respondent).

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41. The respondent failed to file a complaint on behalf of Janes in the Employment Matter within the applicable statute of limitations (Ans. ¶ 44) and failed to timely inform Janes of same. (Ans. ¶ 45). 42. As of September 2023, the respondent had failed to take any action of substance on the Record Sealing Matter. (Ans. ¶ 46). 43. In September 2023, Janes filed a complaint against the respondent with Bar Counsel. (Ans. ¶ 47). 44. On October 2, 2023, the Office of the Bar Counsel (OBC) sent a letter to the respondent formally advising him of Janes’s complaint and requesting a response. (Ans. ¶ 48). 45. On October 13, 2023, the respondent communicated via videoconference with Janes and offered to settle his mishandling of Janes’s Employment Matter. (Ans. ¶ 49; Ex. 2, BBO-0201). 46. On October 21, 2023, the respondent sent a letter to the OBC in response to Janes’s complaint. In his October 2023 letter, the respondent falsely represented that he had agreed to file a petition to seal Janes’s criminal record “as a courtesy” to Janes. (Ans. ¶ 50; Ex. 2, BBO-0194; Tr. 40-42, respondent). 47. In or about November 2023, the respondent entered into an agreement with Janes to pay Janes ten thousand dollars ($10,000), payable in ten (10) monthly installments, in exchange for releasing the respondent from liability for his mishandling of Janes’s Employment Matter. (Ans. ¶ 51; Ex. 2, BBO-0198 and BBO-0202). 4 48. This was a business transaction with a client, within the meaning of Mass. R. Prof. C. 1.8(h)(2). Accordingly, the respondent was required to advise Janes in writing of the desirability of seeking the advice of independent counsel and to give Janes an opportunity to do so. The

4 The respondent thought that Janes’s case was worth about $12,000 in nuisance value, which is how he arrived at the $10,000 he offered to pay to settle. (Tr. 78, respondent).

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respondent failed to advise Janes in writing of the desirability of seeking the advice of independent counsel prior to settling the claim or potential claim for malpractice concerning the Employment Matter (Ans. ¶ 52) and failed to provide Janes with a reasonable opportunity to seek the advice of independent counsel prior to settling the claim or potential claim for malpractice concerning the Employment Matter. (Tr. 39, respondent). 49. On or about November 15, 2023, the respondent communicated the following to Janes regarding the Record Sealing Matter, “The money you paid me, I am applying to the sealing case.” (Ans. ¶ 54; Ex. 2, BBO-0202). 50. On February 27, 2024, the respondent sent a letter to the OBC in further response to Janes’s complaint. In his letter, and in direct contradiction to what he had told Janes, the respondent again falsely represented that he was filing a petition to seal Janes’s criminal record “as a courtesy” to Janes and that he was “not charging [sic] fee.” (Ans. ¶ 55; Ex. 2, BBO-0196; Tr. 43-45, respondent). COUNT TWO—CONCLUSIONS OF LAW 51. Bar counsel charged that, by failing to communicate to his client in writing the scope of his representation and the basis or rate of his fee, the respondent violated Mass. R. Prof. C. 1.5(b)(1). (Ans. ¶ 56). The respondent admits this rule violation and we so conclude. 52. Bar counsel charged that, by failing to competently and diligently represent his client, the respondent violated Mass. R. Prof. C. 1.1 and 1.3. (Ans. ¶ 57). The respondent admits this rule violation and we so conclude. 53. Bar counsel charged that, by failing to keep his client reasonably informed about the status of the matter, and by failing to promptly comply with reasonable requests for information, the respondent violated Mass. R. Prof. C. 1.4(a)(3) and 1.4(a)(4). (Ans. ¶ 58). The respondent

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admits this rule violation and we so conclude. 54. Bar counsel charged that, by intentionally depositing the retainer funds into his operating account, commingling those funds with personal/business funds and intentionally misusing those funds, with continuing deprivation, the respondent violated Mass. R. Prof. C. 1.15(b), and 8.4(c) and (h). The respondent admits, and his bank statements show, that this occurred. (Tr. 27-31, 33-34, 36-38, respondent; Ex. 3, BBO-0269 to -0270; Ex. 8, BBO-1215 to BBO-1217). We therefore conclude that bar counsel has proved these charges. 55. Bar counsel charged that, by failing to return the unearned fees to the client, the respondent violated Mass. R. Prof. C. 1.16(d). (Ans. ¶ 60). The respondent admits this rule violation and we so conclude. 56. Bar counsel charged that, by settling a claim or potential claim for malpractice with his unrepresented client or former client without advising him in writing of the desirability of seeking the advice of independent counsel and without providing him with a reasonable opportunity to do so, the respondent violated Mass. R. Prof. C. 1.8(h)(2). We conclude that bar counsel has proved this charge. (Ans. ¶¶ 51-51; Tr. 38-40, respondent). Matter of Brown, 20 Mass. Att’y Disc. R. 60, 62 (2004). 57. Bar counsel charged that, by intentionally making false statements of material fact to bar counsel during car counsel’s investigation, the respondent violated Mass. R. Prof. C. 8.1(a), 8.4(c), 8.4(d) and 8.4(h). The respondent admitted in his hearing testimony that this was true. (Tr. 40-45, respondent). We therefore conclude that bar counsel has proved these violations. COUNT III—FINDINGS OF FACT 58. In or about January 2017, Raymond Marier (“Marier”) retained the respondent to represent his interests in a personal injury matter. (Ans. ¶ 63).

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59. On October 18, 2019, the respondent filed a civil action styled Marier v. Kiontke, C.A. No. 1920-cv-000269 (Chicopee Dist. Ct.), seeking personal injury damages on behalf of Marier (“the Personal Injury Matter”). (Ans. ¶ 64). 60. On March 6, 2023, the defendant in the Personal Injury Matter agreed to pay Marier twelve thousand dollars ($12,000) to settle the matter, and Marier informed the respondent that he accepted the offer of settlement. (Ans. ¶ 65; Ex. 2, BBO-0186 to BBO-0188). 61. The next day, March 7, 2023, the respondent filed a Notice of Settlement with the court, representing that the Personal Injury Matter had been settled, and requesting that the case be removed from the jury trial list. (Ans. ¶ 68; Ex. 2, BBO-0189). 62. On March 9, 2023, the court entered an Order requiring the respondent to file a stipulation of dismissal within sixty (60) days. (Ans. ¶ 70). 63. Settlement of the Personal Injury Matter was contingent on Marier’s execution of a release. (Ans. ¶ 66). It also required the resolution of a MassHealth lien imposed on Marier’s recovery in the Personal Injury Matter. (Ans. ¶ 67). 64. After the Notice of Settlement was filed with the court on March 7, 2023, Marier repeatedly requested information about the status of the settlement from the respondent. The respondent failed to promptly comply with Marier’s requests for information. (Ans. ¶ 69). 65. Between March 30 and May 9, 2023, opposing counsel repeatedly requested that the respondent provide Marier’s signed release to effectuate the settlement. (Ans. ¶ 71). 66. On May 9, 2023, in response to opposing counsel’s request for Marier’s signed release, the respondent sent an email to opposing counsel in which he stated in pertinent part, “Release is signed and I’ll email that to you shortly. Still working with MassHealth.” (Ans. ¶ 72; Ex. 2, BBO-0191).

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67. The respondent’s representation to opposing counsel on May 9, 2023, that he was “[s]till working with MassHealth” was false. (Ans. ¶ 73). As of May 9, 2023, the respondent had not negotiated with MassHealth concerning the lien on Marier’s recovery in the Personal Injury Matter. (Ans. ¶ 74). 68. Ultimately, the respondent failed to provide opposing counsel with Marier’s signed release (Ans. ¶ 75), failed to timely inform Marier that he had not provided Marier’s signed release to opposing counsel (Ans. ¶ 76) and failed to file a stipulation of dismissal with the court within sixty days of the court’s March 9, 2023 Order. (Ans. ¶ 77). 69. On May 11, 2023, the court entered a judgment of dismissal of the Personal Injury Matter against Marier based on the failure to comply with the court’s March 9, 2023 Order. (Ans. ¶ 78; Ex. 7). 70. The respondent admitted that, as a result of his inaction, the settlement of the Personal Injury Matter was never finalized. (Ans. ¶ 79). We infer this to mean that Marier never received the $12,000 that the defendant had agreed to pay. 71. The respondent failed to timely inform Marier that the court had entered a judgment of dismissal of the Personal Injury Matter and that the settlement was never finalized. (Ans. ¶ 80). COUNT THREE—CONCLUSIONS OF LAW 72. Bar counsel charged that, by failing to competently and diligently represent his client, the respondent violated Mass. R. Prof. C. 1.1 (competence) and 1.3 (diligence). (Ans. ¶ 81). The respondent admits these rule violations and we so conclude. 73. Bar counsel charged that, by failing to keep his client reasonably informed about the status of the matter, and by failing to promptly comply with reasonable requests for information, the respondent violated Mass. R. Prof. C. 1.4(a)(3) and 1.4(a)(4). (Ans. ¶ 82). The respondent

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admits these rule violations and we so conclude. 74. Bar counsel charged that, by making an intentional misrepresentation to opposing counsel about a material fact, the respondent violated Mass. R. Prof. C. 4.1(a). (Ans. ¶ 83). The respondent admits this rule violation and we so conclude. FACTORS IN AGGRAVATION AND MITIGATION FACTORS IN MITIGATION 75. In his answer to paragraph 23 of the petition for discipline (concerning his representation of Mayhew during the period of March through December 2022), the respondent said in pertinent part as follows: “Respondent also states that during this time period, he was hospitalized many times for a chronic kidney issue that kept him from the office. Medical records have been provided to bar counsel.” (Ans. ¶ 23). Voluminous medical records were introduced as impounded exhibits 7, 8 and 9. In addition, his unimpounded hearing testimony was that he has a congenital birth defect (which we need not elaborate on), an implanted medical device, and that he requires frequent hospitalizations for a recurrent and antibiotic-resistant urinary tract infection. His condition also results in frequent periods of incontinence, which he described as taking a psychological toll on him. (Tr. 52-55, respondent). 76. A respondent bears the burden of proof regarding mitigation and, particularly, establishing a causal connection between his medical condition and his misconduct. E.g., Matter of Ablitt, 486 Mass. 1011, 1018, 37 Mass. Att’y Disc. R. 1, 9 (2021), citing Matter of Dragon, 440 Mass. 1023, 1024 (2003). Without discussing the specifics of the impounded medical records, we can say they do not support a claim of mitigation. Nor does the respondent’s testimony suggest that any medical condition caused or contributed to his misconduct. He admitted that his medical conditions did not cause him to make misrepresentations or to misuse

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advance retainers. (Tr. 60, respondent). 77. The respondent also made reference to the “trials of being a solo practitioner,” but that is not a factor in mitigation. E.g., Matter of Newton, BBO. No. 673560, 2023 WL 7499919 at *6 (Board memo, July 10, 2023). Cf. Matter of McCarthy, 416 Mass. 423, 430-431, 9 Mass. Att’y Disc. R. 225 (1993) (sanction not lessened because of the impact on lawyer’s solo practice), quoting Matter of Neitlich, 413 Mass. 416, 425, 8 Mass. Att’y Disc. R. 167 (1992). FACTORS IN AGGRAVATION 78. The respondent’s substantial experience in the practice of law is a factor in aggravation. Matter of Zankowski, 487 Mass. 140, 153, 37 Mass. Att’y Disc. R. 555, 571 (2021); Matter of Grayer, 483 Mass. 1013, 35 Mass. Att’y Disc. R. 31 (2019); Matter of Moran, 479 Mass. 1016, 1022, 34 Mass. Att’y Disc. R. 376, 387 (2018); Matter of Luongo, 416 Mass. 308, 311-312, 9 Mass. Att’y Disc. R. 199 (1993). 79. As we have found, the respondent engaged in multiple disciplinary offenses. This is also a factor in aggravation. Matter of Foster, 492 Mass. 724, 766-767 (2023) (cumulative effect of multiple ethical violations is a recognized factor in aggravation, citing Matter of Saab, 406 Mass. 315, 326-327 (1989)); Matter of Grayer, supra (multiple violations of the rules of professional conduct involving multiple clients was aggravating); Matter of Moran, 479 Mass. at 1023, 34 Mass. Att’y Disc. R. at 387 (factor in aggravation that attorney engaged in multiple acts of misconduct over the course of years). 80. At least some of the respondent's misconduct was undertaken for selfish motives and personal gain. Matter of Pike, 408 Mass. 740 (1990); Matter of Lupo, 447 Mass. 345, 22 Mass. Att’y Disc. R. 513 (2006) (took advantage of elderly, unsophisticated and vulnerable clients to benefit himself financially); Matter of Wise, 433 Mass. 80, 16 Mass. Att’y Disc. R. 416 (2000)

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(conflict of interest and disclosure of client confidences; ethical violations motivated by selfishness and anger); ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS § 9.22(b) (as amended, 1990) (“STANDARDS”). 81. The respondent’s harm to others is another factor in aggravation. Matter of Zak, 476 Mass. 1034, 1039, 33 Mass. Att’y Disc. R. 522, 533 (2017) (harm to clients as a factor in aggravation). See Matter of Laroche-St. Fleur, 490 Mass. 1020, 1024, 38 Mass. Att’y Disc. R. 292, 299 (2022) (listing factors in aggravation in that case, including financial harm to others). The harm to Mayhew (Count One) was the excessive fees the respondent paid himself when he controlled her funds and which he never refunded. The harm to Marier (Count Three) was the loss of the $12,000 settlement that the defendant had agreed to pay. While Janes (Count Two) testified at the hearing, he was never asked whether or not he received the $10,000 that the respondent had agreed to pay him as compensation for the employment claim that was dismissed. We also do not know the nature of his employment claim or how meritorious it was. We therefore do not know whether he sustained any financial harm in this regard. 82. We find that Mayhew, who was incarcerated at the time when the respondent charged and collected clearly excessive fees from her funds that he controlled, was vulnerable. See Matter of DiLibero, BD-2024-052, 2025 WL 1129422 (Kafker, J., Jan. 9, 2025) at *6 (noting that the Board found as a factor in aggravation that the client was vulnerable because charged with an aggravated felony). That a lawyer took advantage of a vulnerable client is a factor in aggravation. Matter of Grayer, 483 Mass. at 1142, 35 Mass. Att’y Disc. R. at 242.

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5 Even if a respondent asserts that a client’s claim had no merit, his failure to prosecute the claim on the client’s behalf still caused harm. Matter of Shaughnessy, 442 Mass. 1012, 1014, 20 Mass. Att'y Disc. R. 482, 483 (2004).

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DISCUSSION Bar counsel recommends that the respondent be suspended for at least three years; the respondent makes no recommendation. We recommend that the respondent be suspended for three years. We begin our analysis with the respondent’s most serious misconduct. An attorney’s intentional misuse of retainer funds with deprivation “warrants a severe sanction of disbarment, indefinite suspension, or a term suspension, but the appropriate choice of sanction will ‘depend[ ] on the facts of the case.’” Matter of Knight, 495 Mass. 1038, 1043 (2025), quoting Matter of Sharif, 459 Mass. 558, 566, 27 Mass. Att’y Disc. R. 809 (2011). Under Matter of Kane, a term suspension is likewise warranted for serial neglect, when it directly caused serious injury to multiple clients. 13 Mass. Att’y Disc. R. 321, 328 (1997). Indeed, as the Supreme Judicial Court recently said, “[w]here an attorney engages in repeated neglect resulting in harm to the client, a suspension for one year and one day is an appropriate remedy.” Matter of Collins, 494 Mass. 1024, 1030 (2024). The respondent’s false statements to bar counsel also require a lengthy term suspension. “Where attorneys have engaged in cumulative violations, compounding initial misconduct that itself warrants a term of suspension by then making false statements to bar counsel, they have been sanctioned by one or more years of suspension.” Matter of Swaye, 27 Mass. Att’y Disc. R. 867, 875 (2011). As the Single Justice (Budd, J.) said in Matter of Falusi, 35 Mass. Att’y Disc. R. 97, 103 (2019), “Misrepresentation to bar counsel, which is ‘comparable to making false representations to a court,’ see Matter of Curry, 450 Mass. 503 (2008), has warranted a one-year suspension from the practice of law.” There are many similarities between the present case and Knight, supra, where the Court