# Riley v. Decoulos (In Re American Bridge Products, Inc.)

> United States Bankruptcy Court, D. Massachusetts · June 29, 2005 · 328 B.R. 274

URL: https://www.frixlaw.com/law-library/cases/1842610

## Case

- **Full name:** In Re AMERICAN BRIDGE PRODUCTS, INC., Debtor. Lynne Riley, Chapter 7 Trustee of American Bridge Products, Inc., Plaintiff, v. Nicholas J. Decoulos, Esq., Decoulos & Decoulos, Citizens Bank of Massachusetts, and Michael Gilleran, Esq. Defendants
- **Court:** United States Bankruptcy Court, D. Massachusetts
- **Decided:** June 29, 2005
- **Citations:** 328 B.R. 274; 2005 Bankr. LEXIS 1246; 2005 WL 1562947
- **Precedential status:** Published
- **Opinion:** Opinion by Feeney
- **Judges:** Joan N. Feeney
- **Cited by:** 8 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM
JOAN N. FEENEY, Chief Judge.
I. INTRODUCTION
This is an action brought by the Chapter 7 trustee against a state court receiver and his law firm for negligence in their conduct of a receivership prior to the filing of an involuntary petition against the debtor. Specifically, the matters before the Court are Counts I through VI and Counts IX and X of the First Amended Complaint filed by Lynne Riley, the duly elected, successor Chapter 7 Trustee of the estate of American Bridge Products, Inc. (the “Trustee”), against the Citizens Bank of Massachusetts, Michael Gilleran, Esq., Nicholas J. Decoulos, Esq., and the law firm of Decoulos & Decoulos. As a result of previous orders of the Court, Nicholas J. Decoulos, Esq. and the firm of Decoulos
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Decoulos are the only remaining defendants. Moreover, pursuant to an order dated June 4, 2004 with respect to the Trustee’s Motion to Strike Jury Demand of Defendants Nicholas J. Decoulos, Esq., and Decoulos & Decoulos, this Court determined that the firm of Decoulos & De-coulos was entitled to a jury trial on Count VII — Professional N egligence/Attorney Malpractice of Decoulos & Decoulos as well as Count VIII — Breach of Attorney Fiduciary Duty of Care and Loyalty by Decoulos & Decoulos. The Court granted the Trustee’s Motion to Strike with respect to the remaining Counts against Nicholas J. Decoulos and the firm of De-coulos
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Decoulos, finding 1) that Nicholas J. Decoulos waived his right to a jury trial with respect to Counts I through IV by filing a Motion of Receiver for Payment of Compensation; and 2) that there is no right to a jury trial for Counts V and VI and IX and X under Mass. Gen. Laws ch. 93A,
1
but that there was such a right for the firm of Decoulos & Decoulos with respect to Counts VII and VIII. The Court ruled that, if necessary, it would bifurcate the trial for purposes of resolving factual issues as to the liability of the partnership for the conduct of Nicholas J. Decoulos, Esq.
As a result of the Court’s prior rulings, the following Counts are before the Court: Count I — Negligence of Nicholas J. Decou-los, Esq.; Count II — Breach of Fiduciary Duty of Care and Loyalty by Nicholas Decoulos, Esq.; Count III — Professional Negligence/Attorney Malpractice of Nicholas Decoulos, Esq.; Count IV — Breach of Attorney Fiduciary Duty of Care and Loyalty by Nicholas Decoulos, Esq.; Count V — Violation of Mass. Gen. Laws ch. 93A, § 11 by Nicholas Decoulos, Esq.; Count VI — Willful or Knowing Violation of Mass.
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Gen. Laws ch. 93A, § 11 by Nicholas Decoulos, Esq.; Count IX Violation of Mass. Gen. Laws ch. 93A, § 11 by Decou-los & Decoulos; and Count X — Willful and Knowing Violation of Mass. Gen. Laws ch. 93A, § 11 by Decoulos & Decoulos. This Court has jurisdiction over these counts as a core proceeding pursuant to 28 U.S.C. §§ 157 (b)(2)(A), (B), (C), and (0), and 1334. Additionally, this Court has jurisdiction as a result of 11 U.S.C. § 543 (b)(2) and Fed. R. Bankr.P. 6002 and because Nicholas J. Decoulos submitted himself to the jurisdiction of this Court by applying for compensation as receiver.
2
The Court conducted a 15-day trial over a six month period between March 9, 2004 and October 20, 2004. Fourteen witnesses testified and 64 exhibits were introduced in evidence. The issues presented include whether the conduct of Nicholas J. Decoulos, as court-appointed receiver of American Bridge Products, Inc. and as an attorney, exposed him and his law firm to liability for negligence, breach of fiduciary duty or malpractice, and, if so, whether the estate of American Bridge Products, Inc. was quantifiably damaged by misconduct on his part. Subsidiary issues involve the Trustee’s standing, the expiration of the applicable statute of limitations and whether Decoulos and his firm were engaged in commerce for purposes of multiple damages under ch. 93A.
Upon consideration of the testimony presented, the exhibits introduced in evidence, as well as the proposed findings of fact, proposed rulings of law, and briefs submitted by the parties, the Court now makes its findings of fact and rulings of law in accordance with Fed. R. Bankr.P. 7052.
II. FACTS
A.
Introduction
Nicholas J. Decoulos, Esquire (“Decou-los” or the “Receiver”) was, at all times pertinent to the claims made by the Trustee, an attorney engaged in the practice of law in the Commonwealth of Massachusetts and a general partner in the law firm of Decoulos & Decoulos, which was and is a general partnership engaged in the practice of law in the Commonwealth of Massachusetts. On September 22, 1993, the Essex Superior Court, Department of the Trial Court, appointed Decoulos receiver of American Bridge Products, Inc. (“ABP”) pursuant to an Order of Appointment signed by the Assistant Clerk. De-coulos’s appointment occurred in the con
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text of a complaint filed by ABP and Agar Industries, Inc. on August 25, 1993 in the Essex Superior Court against the following nine defendants: Robert Conti (“Conti”), Avenue Finance, RCPC Realty Trust (“RCPC”), Everett Aluminum, John Conti, Martha Talbot, INTS, Inc., James Donald Robson, Jr. (“Robson”) and Everett Savings Bank (the “Essex Action”). Through their nine-count, Verified Complaint, ABP and Agar Industries, Inc. alleged, in summary, that Conti, with the aid and assistance of the other defendants, conspired to seize control of ABP and its assets and defraud its creditors. Additionally, they alleged that Everett Savings Bank breached its contractual relationship with ABP and assisted Conti in diverting ABP’s assets to various bank accounts at Everett Savings Bank which he controlled, although he was neither a corporate officer, director or shareholder of ABP nor an authorized signatory on ABP’s bank accounts.
B.
The Metamorphosis of W. Sims & Associates, Inc.
The Trustee’s claims against Decoulos must be evaluated in the context of the claims made by ABP against Conti and the other defendants in the Essex Action. Those claims, in turn, can only be understood in the context of the formation and operation of ABP.
The story of ABP begins with an entity known as W. Sims & Associates, Inc. (“W.Sims”), a corporation engaged in the industrial and residential painting business. Francis Kilroy (“Kilroy”) was an officer, director and shareholder of W. Sims together with Walter Sims. Walter Sims owned 51% of the shares of W. Sims; Kilroy owned the remaining shares, although the annual reports filed with the Office of the Secretary of State do not reflect his ownership interest.
3
According to Kilroy, W. Sims was certified by the State Office of Minority and Women Business Assistance, commonly known as “SOMBA,” as a minority business, a designation which requires at least 51% ownership by a minority person and dominant control over management by the minority person. In the case of W. Sims, Walter Sims qualified as a minority. W. Sims was a successful, SOMBA-certified business, employing over a dozen painters and generating significant revenues, although it did not have appreciable assets. Kilroy testified that he was well-versed in the SOMBA certification process.
4
In the late 1980s, Walter Sims expressed a desire to leave the painting business. At the same time, Kilroy learned of a company located at 93-95 Brookline Street, Lynn, Massachusetts owned by Robson known as American Bridge Railing Company, which had experienced financial difficulties and filed for bankruptcy protection on at least one occasion. Recognizing a business opportunity from publicity about federal and state highway projects to repair the nation’s infrastructure, including its bridges, Kilroy conceived the idea of transforming W. Sims into a manufacturing company to fabricate, market, and sell bridge products. Lacking financial resources of his own, in the spring of 1990, he approached Conti, a successful businessman known as “the home siding king of the North Shore of Boston,”
5
with whom he had done business for approximately ten years. At the time, Conti owned an aluminum siding company
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known as Everett Aluminum, as well as Avenue Finance, and numerous real estate holdings in realty trusts, including RCPC and Amity Realty Trust.
In a Personal Financial Statement submitted to USTrust, Conti reported that as of June 30, 1988 he owned assets worth $12,115,000, including $300,000 in cash, $600,000 in government and marketable securities, $2,895,000 in partial interests in real estate equities, and $8,305,000 in real estate, subject to liabilities totaling $3,796,635. He also disclosed total income of $777,500 in 1987.
6
Approximately five years later, in a Personal Financial Statement dated September 8, 1993, prepared just weeks after the commencement of the Essex Action, Conti reported total assets of $4,832,137, subject to liabilities of $6,750,598. He reported income of $68,084, less than one-tenth of what it had been five years earlier.
7
Through discussions with friends, including William Mahoney (“Mahoney”), Kilroy met Cesar Martinez (“Martinez”), a pipe designer with a Cambridge, Massachusetts engineering firm. Kilroy introduced Martinez to the prospect of succeeding Walter Sims as a minority business owner. Martinez agreed to acquire Walter Sims’s 51% interest in W. Sims, a circumstance which preserved W. Sims’s SOMBA certification.
In the spring and summer of 1990, Kilroy, Martinez, and Conti fashioned a “very involved, intricate understanding,”
8
whereby W. Sims would cease its activities as a painting contractor and begin operations as a producer of bridge products. Conti, through a realty trust, purchased the real estate located at 93-95 Brookline Street, which was appraised at $450,000, as well as the equipment located there. He executed a purchase and sale agreement with Gilman J. Hallenbeck, Trustee of the Asbury Leasing Trust (“Hallenbeck”), for the purchase of the real estate for the sum of $250,000 and eventually took title to the Brookline Street property as trustee of the RCPC Realty Trust.
9
On May 9, 1990, shortly after executing the purchase and sale agreement for the real estate, Conti signed an “Agreement on Personal Property” with Hallenbeck pursuant to which he agreed to purchase the equipment and personal property located on the premises for $75,000.
10
The parties attached a list to the Agreement, which contained both a description of and a value for items of equipment and personal property which Conti agreed to purchase. The total value of the equipment, including motor vehicles, was $205,890, although many of the items listed were old and inoperable.
11
Kilroy testified that, in addition to acquiring the real property and equipment for W. Sims to begin its operations as a producer of bridge products, Conti was obligated to provide working capital for the company: “Mr. Conti’s part of the agreement was that he would infuse enough capital to get the company up and
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running.”
12
Kilroy stated that it was unclear how much capital Conti would be required to infuse but that from his conversations with Robson, the former owner of American Bridge Railing Company, he expected that “somewhere in the mid to— around — -the low to mid six figures area would be required over a start up period of, say, a year and a half or so, a year and a half, two years.”
13
Kilroy also testified that Conti borrowed $50,000 from USTrust as president of American Bridge Railing Corporation, an entity with which he had no affiliation as an officer or director. According to Kilroy, Conti contributed the money to W. Sims,
14
although ABP eventually became obligated for repayment of the loan.
15
As an inducement to Conti to finance the new business venture, Kilroy testified that Conti was to profit in two ways:
He would profit big time by buying the piece of property at probably fifty per cent or less of its current market value. He would get a healthy rent above market value while we were occupying, and at the end of the line would sell out to us at a highly profitable transaction to sell the land buildings and equipment over to us.
16
Conti did not disagree with Kilroy’s view, at least in a deposition taken in 1997. At that time he stated:
My role was to buy the property, buy the equipment, and in a few years I could get exactly what the whole thing cost, may be [$]325,000, and when we sold it, I was to get [$]700 to [$]800,000, my end for doing all this, and I was supposed to fund or help fund the company.
17
Conti described himself as an investor in ABP, although he admitted that in June of 1993 he borrowed $200,000 from Everett Savings Bank on behalf of “American Bridge a/k/a Agar Industry.”
18
Later in his testimony, he indicated that he was “a little more” than an investor.
19
While Conti’s contributions to the new venture were clear, Kilroy’s contributions were more amorphous. He stated, in response to a question about what he “brought to the table,”
20
that he contributed “cash flow in the form of contracts to the tune of several hundreds of thousands of dollars that came with Sims,”
21
as well as W. Sims’s SOMBA certification and his ability to market the business. Martinez, for his part, acquired Walter Sims’s shares of W. Sims and served as its new president, thus satisfying at least some of the SOMBA requirements.
In conjunction with the transformation of W. Sims from a painting contractor to an entity doing business as American Bridge Products, Inc., W. Sims executed a lease with RCPC, an entity controlled by Conti which came to hold title to the property formerly occupied by Robson’s company, American Bridge Railing Company. The lease was not offered in evidence, and there was somewhat conflicting evidence as to the amount of the monthly rent.
22
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The evidence established that W. Sims and later ABP did not pay monthly rent on a regular basis.
In addition to the lease, Kilroy and Martinez executed various documents intended to provide Conti with security for his capital investments. These documents included an “Agreement” in which Martinez and Kilroy agreed to consult Conti “on all matters pertaining to the corporation,” including bidding on projects, entering into contracts to perform work in conjunction with bids, hiring personnel, increasing the salary of employees, purchasing material or supplies in excess of $5,000 and entering into contracts which might affect the financial stability of the corporation. In addition, Martinez and Kilroy granted Conti a veto power with respect to the management of the company in the event of
any
disagreement between the shareholders, officers and directors, on the one hand, and Conti, on the other. The Agreement further provided that the veto power “shall remain in effect until such time as all obligations by the corporation, its officers, directors, and shareholders to Robert Con-ti have been paid in full,” and “[a]ll provisions of the by laws of the corporation which are in conflict with the above stated items are hereby suspended.”
23
In addition to the veto power they granted to Conti, Martinez and Kilroy, on August 1, 1990, executed a “Waiver of Restrictions” in which they waived all restrictions with respect to the transfer or pledging of shares of stock in W. Sims, and Kilroy granted Conti the option to purchase 50% of all his shares in W. Sims.
24
On the same date, Kilroy executed an Option to Purchase in which he again agreed to grant Conti an option to purchase 50% of his shares in W. Sims. Martinez executed similar documents.
25
These agreements, had they been disclosed to the State Office of Minority and Women Business Assistance, likely would have resulted in the decertification of W. Sims as a minority-owned and controlled business.
On September 14, 1990, Martinez, on behalf of W. Sims, filed Articles of Amendment to reflect the changed business purpose of the corporation and to amend the provisions of the Articles with respect to stock pledges. Although Kilroy interpreted Plaintiffs Exhibit 3 as effectuating a change of name from W. Sims to ABP, it did not do so. Nevertheless, W. Sims did officially change its name to ABP on August 31, 1993 when it filed Articles of Amendment dated July 11, 1991.
26
Conti never executed the option to purchase a portion of the shares belonging to either Kilroy or Martinez.
27
Kilroy testified that ABP was successful in its marketing efforts. He stated that within a short period of time the company had 30 employees working three shifts, the engineering staff had tripled, and he was in the process of modernizing the welding
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procedures and the engineering office.
28
Additionally, ABP had obtained certification from the American Institute of Steel Construction (“AISC”). John Conti, Con-ti’s son, as well as Robson, the former owner of American Bridge Railing, and his son were among the employees working at ABP. Kilroy’s son also worked at ABP, and later, when Satyendra K. Agarwal (“Agrawal”) replaced Martinez as president of ABP, his son was employed as a consultant.
Although Kilroy and Mahoney were optimistic about the prospects of W. Sims and later ABP, the unaudited financial statements prepared by the accounting firm of Sachetta, Cataldo & Sachetta, P.C. show that the company relied on institutional borrowings for its cash flow. The following chart contains a summary of the Statements of Income and Retained Deficit and the Statements of Cash Flows prepared by Sachetta, Cataldo
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Sachetta, P.C. for various periods in 1990, 1991 and 1992. The first three Statements were in the name of W. Sims. The Statements for the year ending on December 31, 1991 and for the period ending on April 30, 1992 were in the name of ABP.
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The following chart provides more detail about the cash from financing activities for the relevant periods,
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The Statement for the year ending on December 31, 1991 contained a listing of the credit lines available to ABP. According to its accountants, ABP had access to eight credit lines totaling $457,476 and had $64,551 in available credit on the date of the Statement. Four months later, the April 30, 1992 Statement showed that ABP had access to eight credit lines totaling $472,057 and had $19,142 in available credit. Kilroy testified that W. Sims and later ABP had banking relationships with US-Trust and Everett Savings Bank, with which Conti had strong ties as its largest commercial borrower and as an incorpo-rator.
29
With respect to the company’s financial position in early 1992, John F. Hackett, a Senior Vice President at USTrust at the time, stated the following in a memorandum to the bank’s internal credit folder dated January 16,1992:
This day the writer was supplied with interim managment [sic] financial statements for the period ended 12/31/91. The company has greatly improved over this past year, income to date is slightly under $1.9 million.
Most importantly, the Company has improved its margin, and is showing a net income of $122,180.
Based on the loss carry forwards from prior years, the Company will not be obliged to pay any taxes. The Company has a positive net worth in excess of $230,000 as of the Balance Sheet date. Obviously, this shows a great turnaround, and this is due to the fact of additional work being acquired by the Company.
The Company is now listed as a minority contractor with Cesar Martinez owning the majority of stock, and they [sic] do have their SOMBA certificates. The Big Dig, in Boston, plus the approval of the transportation bill will place a tremendous amount of work available to be bid upon. The Company, which will have a priority because of its rating, and specializes in Bridgework, railing and expansion joints, [sic]
Management is looking optimistically towards 1992 ....
30
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Two months later, Hackett, in another memorandum to the credit file, stated the following:
This day we have received the year end financials submitted by the above listed Company compiled by Sichetta Cataldo & Sichetta CPA’s, [sic] the [sic] writer was pleased to see that the volume of this Company has reached slightly below $1.9 million; but most importantly has showed a net income of $121,000. Cash flow of the Company has continued to improve generating approx. $200,000 for year end 1991. The Company continues to have a reasonable backlog beginning in 1992.
We have most recently been contacted by an officer of a local minority agency which will provide banks with additional comfort in lending to minority contractors .... The gameplan [sic] initially would be to term out the Bank debt via the agency lending directly to American Bridge, we would on assignment of specific contract receivables, continue to fund working capital.
31
ABP’s Financial Statements showed that it was generating a profit of at the end of 1991 and during the first four months of 1992, a circumstance corroborated by US-Trust’s Senior Vice President. Nevertheless, Conti testified that he controlled the money and “every week I had to put money in that place.”
32
He stated: “that place from day one never made a dime.”
33
The Financial Statement for the eight month period ending August 31, 1990 is informative about the ownership of the equipment used by W. Sims. Conti purchased the equipment for $75,000 from Gilman J. Hallenbeck as Trustee of the Asbury Leasing Trust in the summer of 1990. On July 31, 1990, the day before executing the “Waiver of Restriction” and “Option to Purchase” pursuant to which Kilroy and Martinez each granted Conti the option to purchase 50% of their shares of W. Sims, they personally executed a promissory note to Conti in the sum of $35,000. The consideration for the note and the collateral securing it were described as follows: “Makers acknowledge that this $35,000.00 promissory note is in consideration for the purchase of $35,000.00 of various and sundry equipment from Robert Conti in July, 1990, said equipment serving as the underlying collateral for said promissory note. See listing of equipment attached hereto.”
34
Despite the evidence that the equipment and personal property were worth either $75,000, the price paid by Conti to Hallen-beck, or $35,000, on the Statement of Cash Flows for the eight month period ending August 31, 1990, W. Sims reported the purchase of property and equipment in the sum of $205,890, a sum identical to the total value of the equipment on the list attached to the “Agreement on Personal Property” signed by Conti on May 9, 1990. Moreover, on the Balance Sheet dated August 31, 1991, W. Sims reported property and equipment at cost with a value of $218,735. For the year ending December 31, 1991, ABP reported property and equipment with a value of $222,958 at cost and with a value of $124,507 after accumulated depreciation.
35
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Decoulos testified that the parties to the Essex Action never produced a bill of sale from Conti either to ABP or to Kilroy and Martinez.
36
Similarly, no assignment of the equipment from Kilroy and Martinez to ABP was produced. Nevertheless, the Financial Statements, which reflected ABP’s ownership of equipment, are consistent with the decisions of USTrust and Everett Savings Bank to extend credit to ABP in the sums set forth above. Everett Savings Bank took a security interest in the equipment owned by ABP, along with all of its other collateral, including accounts receivable.
37
USTrust did the same.
38
In the fall of 1992, ABP borrowed monies from both USTrust and Everett Savings Bank. For example, on September 11, 1992, Martinez and Kilroy executed a note payable to Everett Savings Bank in the sum of $137,700 with principal payments due on November 30, 1992 in the sum of $50,000, on December 30, 1992 in the sum of $70,000, and on January 30, 1993 in the sum of $17,700.
39
On October 5, 1992, Martinez executed a Commercial Promissory Note in favor of USTrust in the sum of $37,000;
40
and four days later, on October 9, 1992, he and Kilroy executed a note in the sum of $49,335 in favor of Everett Savings Bank with principal payments due on November 30,1992 ($20,000), December 30, 1992 ($20,000), and January 30, 1993 ($9,335).
41
It was around this time, when ABP would have significant repayment obligations to its lenders, that problems began to surface at ABP.
Mahoney, who began working at W. Sims in the summer of 1991, testified that he became aware that Conti was siphoning funds from ABP in approximately July of 1992, although he did not report his suspicions to Martinez and Kilroy. He also suspected that Robson and Martha Talbot (“Talbot”), ABP’s office manager, were cooperating with Conti, when, in September of 1992, he discovered that monies from a Small Business Administration loan which were allocated for specific projects were missing.
42
Mahoney reported his suspicions to Kilroy and Martinez. He testified that although Martinez was aware that Conti controlled ABP’s finances, Martinez “did not realize that Mr. Conti was actually stealing monies from and keeping American Bridge cash poor.”
43
Mahoney further testified as follows:
[W]e found out that he [Conti] was taking other cheeks and taking the check and depositing it directly in one of his accounts or putting the check into American Bridge Products and was
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drawing the money on his own volition. That we found out, and then I told Mr. Martinez all about this, Martinez was afraid of him. Martinez’s answer to the whole thing was to bail out. He grabbed Mr. Agarwal to take over.
44
Kilroy testified that at the time Martinez left ABP, the company was rift with factions. Kilroy indicated that he and Martinez, and, later, he and Agarwal, were in one camp, and the Contis and the Rob-sons were in the other.
In the fall of 1992, Kilroy stated that he was laid off by Martinez, although he continued to go to work without pay and “do whatever ... [he] ... could to contribute to the company.”
45
Despite his testimony that he was laid off, on November 5, 1992, he and Martinez executed an employment agreement, effective November 9, 1992. The agreement provided Kilroy with an annual salary of $49,000 as well as compensation equal to two years annual salary in the event of breach. One week later, on November 12, 1992, Agarwal obtained Martinez’s shares in ABP and became its president, treasurer and clerk.
In June of 1993, Kilroy, with the assistance of Mahoney’s sister, an attorney, commenced an action against ABP in the Essex Superior Court for breach of an earlier employment agreement dated March 1, 1989. The complaint was served on Agarwal at his home address in Me-thuen, Massachusetts. Kilroy eventually obtained a default judgment against ABP on May 17, 1995 in the sum of $111,208 and used that judgment to file a proof of claim in the Essex Action, to file the involuntary petition commencing this case, and to file a proof of claim in this case.
46
Prior to acquiring Martinez’s interest in ABP, Agarwal, a professional engineer with a Ph.D. in Engineering, had done some consulting work for ABP. Specifically, he approved and stamped shop drawings for ABP to submit to the Massachusetts Highway Department. Agarwal, a native of India, testified that he was unaware of the term “due diligence.”
47
Pri- or to acquiring Martinez’s shares, he examined ABP’s quality control manual and satisfied himself that the company had sufficient equipment, expertise and contracts to make his association with the company worthwhile. He made no serious effort to discover the debt structure of ABP. He also did not compensate Martinez for his acquisition of Martinez’s 51% interest in ABP, stating that his agreement to pay Martinez was contingent upon the company doing well.
As the former president of ABP, Agar-wal testified unequivocally that ABP never borrowed money from Conti or any of his business entities, including Avenue Finance, Everett Aluminum, RCPC, or Amity Realty Trust. Moreover, he testified that, except for a brief period of time in early 1993 when he was visiting India and transferred check writing and signing authority to Robson, no other person had authority to write or sign ABP’s checks or to cash checks made payable to ABP.
48
Agarwal further testified that in late July of 1993, he discovered that ABP’s bank records, including canceled checks and business papers, were missing. Seven months earlier, however, in December of 1992, he learned that checks had been improperly endorsed by Conti and deposited in different accounts Conti controlled at
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Everett Savings Bank where Conti had significant influence. According to Agar-wal, he instructed Kilroy to take appropriate legal action. Kilroy complied with Agarwal’s request and contacted Attorney Paul Webber (“Webber”) in January of 1993. It was at that time that Conti forced Kilroy to leave the Brookline Street premises permanently.
In late 1992 and early 1993, Kilroy, Ma-honey and Agarwal, dissatisfied with the direction of ABP, explored opportunities to acquire other companies, including Flame Tech Steels, Inc. and Lawrence Aluminum, Inc., through which to conduct business.
49
In November 1992, around the time Martinez sold his shares to Agarwal, Maho-ney’s girlfriend, Brenda Chartoff, incorporated Atlas Bridge Supply, a company which bought products used in road and bridge construction projects and sold them for a profit to ABP and other companies.
50
In January of 1993, Agarwal incorporated Agar Industries, Inc., although he stated the company never conducted any business.
51
Although Kilroy and Mahoney were steadfast in their testimony that Conti looted ABP by converting its checks and depositing the proceeds into various accounts he controlled at Everett Savings Bank, Conti initially testified that Kilroy, as president of ABP, gave him authority to deposit and redeposit ABP checks.
52
Con-ti later back peddled, indicating that he did not know who gave him the authority. He stated: “I just did it.”
53
In short, Conti admitted that he took ABP checks without corporate authority, deposited the proceeds into accounts he controlled and then conferred with the officers and employees of Everett Savings Bank, including John Spagnese, on a daily basis to determine which checks presented for payment to ABP would be paid from its accounts. Everett Savings Bank employees would then transfer sufficient funds into ABP’s accounts from various accounts Conti controlled to pay ABP’s obligations. Conti rationalized this procedure by alluding to an IRS lien on ABP’s accounts which would have resulted in the seizure of any sums deposited into its accounts.
While Conti testified that ABP never made any money to justify his investment, Kilroy opined that it was Conti, not ABP, that was in financial difficulty, asserting that Conti’s investment in the Wolfeboro Inn in New Hampshire “was bleeding him dry.”
54
Mahoney supplied yet another explanation for Conti’s decision to take control over the company: it was due to his son’s interest in “taking over the place.”
55
Attorney G. Shepard Bingham (“Bing-ham”), the attorney who succeeded Attorney Webber in the Essex Action, concurred: “[Njotwithstanding whatever the intentions were originally, I think that the Conti factions [sic] ultimately perceived that this was going to be a very profitable company, and they wanted it.”
56
The Court can infer another motivation for Conti’s conduct. In view of his conversions of accounts receivable and manipulation of accounts at Everett Savings Bank, wresting control of ABP from its shareholders, officers and director would enable him to conceal his conversion of
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ABP’s checks and money in sums in excess of $300,000, as well as his other illegal activity.
Agarwal stated that he confronted Conti about the missing checks. Conti’s response, according to Agarwal, was to use “very filthy language.”
57
Agarwal, who was not a United States citizen at the time, testified that Conti threatened to take steps to have his green card revoked. Thereafter, Agarwal, whom Conti described as “a do-nothing person,”
58
kept a low profile, acceding to Conti’s dominance of the affairs of ABP. Indeed, beginning in December of 1992, Agarwal, at Conti’s direction, sent letters to general contractors instructing them to send payments for work produced by ABP directly to Avenue Finance. Agarwal explained his reasons as follows:
Because the Avenue Finance [sic] was owned by Bob Conti and Bob Conti promised to invest money or to finance the American Bridge Products [sic], and on the request of Mr. Bob Conti, I signed these letters. It doesn’t mean I gave him the full authority to cash the checks. Has to come in the joint name, whether it comes to my office or to his place, in my opinion made no difference. I just write down the sentence to please him.
59
Not long after Conti forced Kilroy from the Brookline Street property, Conti made it all but impossible for Agarwal to remain on the premises too. Upon his return from India in early 1993, Conti informed Agarwal that he, Conti, was in full control of the corporation and intended to reduce his salary. Agarwal, however, continued to work for ABP in his capacity as a professional engineer as ABP required his services for approving plans for the Massachusetts Highway Department. Agar-wal indicated that he made every effort to stay out of Conti’s way until he ceased going to the Brookline Street property altogether in June or July of 1993. At around this time, Conti borrowed $200,000 from Everett Savings Bank on behalf of “American Bridge a/k/a Agar Industry,” an entity with a name virtually identical to the company Agarwal incorporated.
60
In addition to taking overt control of ABP in early 1993, Conti, in his capacity as Trustee of RCPC, commenced a summary process eviction proceeding against the company. In April of 1993, he sent Agar-wal a letter informing him that he had obtained an execution for possession of the premises located at 93-95 Brookline Street, Lynn, Massachusetts, together with a judgment in excess of $200,000.
61
Mahoney, who notarized the “Account Annexes [sic]” to the Summary Process Complaint filed by Conti against ABP, explained that the Complaint was never properly served on Agarwal, who was in India at the time.
62
Suspended from the practice of law and later disbarred, Mahoney began working for ABP as a “sales engineer” in the summer of 1991, developing territories outside of Massachusetts. He explained that he would “go through the plans and specifications for any bridge railing or bridge expansion joint jobs, pull the plans, do the take-offs, submit the bids, and negotiate
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the contracts.”
63
Later he became the purchasing agent for ABP, becoming “involved in all aspects of the purchasing— bolts, aluminum, steel”
64
as well as cost control measures. According to Mahoney, the job files were located adjacent to his desk and he “would periodically go through them to find out what materials they were using and the progress that was being made and check them and correlate them with time cards and materials.”
65
Based upon his knowledge of ABP’s purchases, he opined that at the beginning of September 1993, there were approximately $120,000 to $130,000 worth of materials located at ABP’s business location consisting of 118.5 tons of steel with a value of $85,000; 15 tons of aluminum with a value between $15,000 and $25,000, and $20,000 worth of bolts.
66
Mahoney also explained that the Massachusetts Highway Department employed a professional services firm to monitor the status and quality of construction with respect to its contracts with contractors, including ABP. The reports were prepared by a gentleman named Puffer who prepared so-called “PSI” or “Puffer Reports.” Mahoney described the reports as follows:
[They were] like a mini-synopsis of the project. [They] ... set out the requirements for the project. They would set out the tonnage of material, the type of job, ... the location of the job. As he would come along he would tell you how much of the material had been received; if the certifications were acceptable to him. He’d tell you in detail the status off each phase of the project.
* * * * * *
His report would reflect how much of the job was shipped and when it was shipped and how much was ready to be shipped. His job was pretty indicative of the exact — it was a complete reflection of what the job status was at the particular date.
67
Mahoney reviewed eight contracts that ABP had in September and opined that their value to ABP was in excess of $740,000.
68
Indeed, Conti, in an affidavit used to refresh his recollection, stated that there were 25 contracts worth approximately $856,000.
69
Although Mahoney continued working for ABP months after Kilroy stopped working, he left ABP in June of 1993 and commenced an action in the Essex Superi- or Court shortly thereafter alleging he was owed $50,000 in compensation.
70
He later recovered a judgment in the sum of $41,762.55.
71
After Mahoney and Agarwal left ABP, John Conti, who had begun work at ABP as an hourly, unskilled laborer, took over Agarwal’s office.
While Mahoney continued to draw a salary from ABP, he, Kilroy and Agarwal were meeting with Webber about bringing a suit against Conti and others. On August 25, 1993, ABP and Agar Industries, Inc., Agarwal’s company, commenced the Essex Action. A day after the suit was filed, there was a break-in at ABP and the
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police were summoned. Agarwal submitted to the Lynn police a list, dated August 31, 1993, of “Things Stolen,” which contained the following items: all drawings, approved and certified by government departments, all job files, one file cabinet with closed files, computer, printer, fax machine, CAD CAM release 12 discs, AME disc, blue line printing machine, all paper supplies, all canceled checks, all corporate records, all steel code and books, and AISC certification of fabrication shop.
72
C.
The Essex Action and the Receivership
On August 25, 1993, ABP and Agar Industries, Inc. (collectively, the “plaintiffs”) commenced an action and obtained temporary restraining orders against Robert Conti, John Conti, RCPC, James Donald Robson, Jr., Avenue Finance, Martha Talbot and Everett Savings Bank (collectively, the “defendants”). One week later, on September 2, 1993, the court appointed Phillip Strome receiver and denied the plaintiffs’ requests for permanent injunctions.
73
On September 14, 1993, the court in the Essex Action reinstated the temporary restraining orders against the defendants; on September 16, 1993, it issued a temporary restraining order against the plaintiffs, as well as Kilroy and Agarwal.
74
The court appointed Decoulos Receiver on September 22, 1993.
75
The order appointing the Receiver provided the following:
This cause came on to be heard upon the return of an order of notice to show cause why a receiver should not be appointed as prayed for in the bill of complaint, and was argued by counsel (for the plaintiff, -the defendant, although duly served with process, not being present or represented by counsel); and thereupon, upon consideration thereof, it is ORDERED AND ADJUDGED:
1. That until further order of the Court Nicholas J. Decoulos, Esq., of 248 Andover St Peabody, be and hereby is appointed receiver of the estate, property, moneys, debts and effects of every kind and nature of or belonging to the defendant + pltf [sic] American Bridge Products, Inc.; and he is hereby authorized and directed to collect, get in, and take charge of all and singular thereof, and to hold the same subject to the further order of the court.
2. That the said defendant, its officers, servants, agents and attorneys, and each of them, are hereby required and ordered to deliver to said receiver all the property, moneys, stock in trade and effects of every kind and nature belonging to the said defendant in their hands, possession, or control, together with all books, deeds, documents, vouchers and papers relating thereto, and the said defendant and its officers, servants, agents and attorneys, and each of them are hereby restrained and enjoined from collecting any of the debts or accounts due to the said defendant and from using, spending, injuring, conveying, transferring, selling, or in any manner disposing of or encumbering any of the effects or property aforesaid, except to deliver them into the hands of said receiver.
%
* & #
%
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J.
That the said receiver is required to file in the office of the clerk of this court, within thirty days after the date of entry of this decree, under oath, a detailed inventory of the property of which he has possession, or the right of possession, with the estimated values thereof, together with a list of the encumbrances thereon; and also a list of the creditors of the receivership and of the said defendant, so far as known to him.
******
6. That either of the parties, or the said receiver, may apply to the court from time to time for such further directions, orders, or decrees as may be necessary.
76
(emphasis added).
Decoulos accepted his appointment as Receiver. On September 23, 1993, the court terminated all temporary restraining orders. Decoulos’s first action, after reviewing the Order of Appointment, was to review “appropriate statute and case [sic] regarding liability of Receiver.”
77
Four days after accepting his appointment, he went to the Lynn Post Office to change the mailing address of ABP and to pick up the mail. In the meantime, Conti incorporated New England Bridge Products, Inc. (“NEBP”), which John Conti managed.
78
Notwithstanding the appointment of a receiver, NEBP continued to use ABP’s telephone number, and AISC certification to conduct business from the premises occupied by ABP. Additionally, it used ABP’s job files, which had reportedly been stolen. According to Mahoney, NEBP “took over American Bridge Products without missing a beat.”
79
Indeed, John Conti corroborated this testimony. Moreover, he stated that Robson contacted ABP’s general contractors and informed them of the receivership proceedings. Although not an attorney, he opined that this resulted in cancellation of the contracts, an assertion which could not be verified as the contracts were not introduced in evidence. John Conti added: “[w]e basically had to tell the general contractors that we would be able to perform to finish those projects.”
80
He conceded that NEBP would not have been able to complete ABP’s existing contracts without its infrastructure.
81
Thus, NEBP, a non-SOMBA certified company completed the favorable contracts ABP had obtained as a SOMBA certified company.
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Even though Conti testified that ABP “never made a dime,”
82
he recalled incorporating NEBP in the fall of 1993. He testified that he did not remember where he obtained the funds to start the company.
83
Later, he stated that he gave his son the money to start NEBP, that his son informed him the company was doing well, that he never had NEBP sign a lease, and that he never charged it rent.
84
In July of 1999, approximately six years after the commencement of the Essex Action and three years after the filing of the involuntary petition, John Conti delivered a check drawn on NEBP’s account in the sum of $400,000 to his father with the notation, “7/29/99 Loan 215001.”
85
Agarwal, for his part, changed the mailing address of ABP to his home address in Methuen, Massachusetts and, in the fall of 1993, after the commencement of the Essex Action, received a check in the sum of $9,700 from an ABP account debtor which he deposited in the account of another entity with which he was involved, Greater Boston Construction Company. Agarwal eventually turned over the sum of $9,700 to the Receiver.
86
Additionally, Webber received funds belonging to ABP in the amount of $2,304.82, which funds were never recovered.
87
In the first three months of the receivership, Decoulos conferred with Attorney John Mackey, John Conti’s counsel, as well as Attorney Webber and others, including Conti, Robson, Kilroy and Agarwal. Between the date of his appointment in September of 1993 and June 1, 1994, the bulk of Decoulos’s time was spent conferring with the parties, and their various representatives. Additionally, he prepared and submitted to the Superior Court four applications for orders, the first two of which contained his requests for authority to complete unfinished work in progress including contracts with entities identified as follows: Converse Construction Company, Inc., Petricca Industries, James Gross, Señ-aba Construction, Gagliarducci and T.A. Loving.
In his Application for Order # 3, dated October 27, 1993, filed over a month after his appointment, Decoulos sought permission to vacate the Brookline Street premises on the ground that ABP had completed its work in progress. Decoulos also sought authority to retain Barton K. Hyte Co., Inc. as his appraiser and Neal A. Price & Company as his accountant. In requesting authority to vacate the Brook-line Street premises, Decoulos did not mention the letter dated October 1, 1993, from Attorney John Mackey, John Conti’s counsel, in which Attorney Mackey stated:
[M]y client would like to see the plaintiff corporations dissolved and liquidated as soon as possible. It may be in the best interest of all parties that both corporations be placed into bankruptcy and all the outstanding debts be discharged to the extent possible under federal codes.
‡ ‡ ‡ ‡ ‡ ‡
[A]t this point there is a continual rental obligation on the part of the corporation due to the Defendant, Robert Conti. At this point, we would like to terminate the rental obligation, but also, have the plaintiffs corporations [sic] vacate the premises and allow Mr. Conti to either use the premises himself, or rent
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it out to someone who will pay a fair market rental. Additionally, Mr. Conti currently holds an execution approximately $225,000.00 against the plaintiff [sic]. He will be willing to accept all tools that are not his, equipment, machinery and materials on board in lieu of payment of this $225,000.00 debt. My client believes at this time there is approximately thirty to thirty-five thousand dollars worth of equipment being held by the corporations and some fifteen thousand dollars worth of materials on the site.
88
Although Decoulos obtained authority to retain Barton K. Hyte Co., Inc., Barton Hyte (“Hyte”) did not visit the Brookline Street premises for purposes of conducting an inspection and appraisal of ABP’s assets until December 14, 1993, 11 weeks after Decoulos’s appointment. Decoulos did not accompany Hyte to the Lynn property,
89
advising Hyte to contact John Con-ti. John Conti, not Decoulos, provided Hyte with “a list as to what he [John Conti] said was the property to be appraised.”
90
Hyte questioned John Conti about “the large amount of other assets on the premises at which he said ‘that’s part of another company, nothing else belongs to them [ABP].’ ”
91
Neither Hyte nor De-coulos conducted any independent inquiry of Conti’s assertion at the time.
Agarwal and Kilroy became disenchanted with Decoulos’s performance as Receiver of ABP within months, if not weeks, of his appointment. Both complained of his refusal to listen to them and consider their points of view. As a result, with the advice of their attorney, ABP filed a Chapter 11 bankruptcy petition, which was dismissed shortly after it was filed on the motion of the United States Trustee. Kilroy explained the motivation for the bankruptcy filing as follows:
We couldn’t do anything under Decou-los, he would have no communication with us. He was doing nothing about anything, as far as securing funds and protecting the company from losses, and absolutely less than nothing in the lines of communication.... He had to be removed for the company to survive.
92
Agarwal shared Kilroy’s assessment of Decoulos’s performance, particularly because as president of ABP he was receiving demands from the IRS and the Massachusetts Department of Revenue with respect to the need to file tax returns. He urged Decoulos to employ an accountant to prepare the necessary returns and to pay the company’s tax obligations.
93
His frustration with Decoulos eventually led him to send a letter, dated January 28, 1994, to the Massachusetts Board of Bar Overseers in which he stated, among other things, the following:
When he put the Defendants in charge of my businesses he never took an inventory of what was on the premises. He has allowed the Defendants to set up a new company called New England Bridge Products, Inc. This new company has taken the telephone number of my company, its equipment, materials and contracts as its own, all with the help and assistance of Mr. DeCoulas [sic]. Mr. DeCoulas [sic] now informs
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me that the equipment and material belonging to my companies is only a bunch of junk worth about $500.00. Without my knowledge Mr. Decoulas [sic] gave cash money from my account to Defendants.
94
The Board of Bar Overseers did not take action against Decoulos based upon Agar-wal’s complaint. Nevertheless, Agarwal was correct in at least one respect: at the time he wrote the letter, Decoulos had not filed “a detailed inventory of the property of which he has possession, or the right of possession, with the estimated values thereof, together with a list of the encumbrances thereon.”
95
Indeed, Decoulos never filed the type of inventory required by the court’s September 22,1993 Order of Appointment.
On February 25, 1994, six months after the commencement of the Essex Action, ABP by its shareholders, Agarwal and Kilroy, retained Bingham to represent it. Neither ABP nor its shareholders paid Bingham a retainer for his services.
96
Bingham explained his initial approach to the case presented to him by Agarwal and Kilroy: “gather as much information as ... [I] ... could, put it in a concise fashion, and get it to Attorney Decoulos, that ... was my function in terms of trying to help Mr. Kilroy and Mr. Agarwal.”
97
After conducting a preliminary investigation, Bingham testified that he perceived the following:
[T]here was a claim involving improper negotiation of checks payable to American Bridge by either people who were not authorized by American Bridge to execute or negotiate those checks. There were — there were [sic] conversion of receivables directly ... checks made payable to American Bridge that ended up in ... non-American Bridge accounts, and — and I found that — early on I was provided with a list of ... what appeared to be a compilation of checks of that nature, receivables that were due American Bridge that didn’t get to American Bridge accounts. I saw that in one aspect of the claim, and — , you know, that was something that developed more and more over time. I thought it was a — a very good and a very valid claim, and I, in my sense, that there was a strict liability associated with that to Everett Savings Bank.
98
Bingham also considered NEBP an alter ego of ABP as part of his initial assessment of what was transpiring at the Brookline Street location. He testified that he conducted an exhaustive investigation. He went to the Massachusetts Highway Department and examined the Puffer Reports, he contacted resident engineers, he sought out bank records, and he examined copies of checks.
On June 3,1994, over eight months after his appointment, Decoulos filed his first Receiver’s Report, along with an Application for Order # 6 through which he sought payment of his fees in the sum of $11,540 for 57.7 hours of time expended at an hourly rate of $200, as well as payment of his accountant, Neil A. Price & Co., in the sum of $2,175 and his appraiser, Barton K. Hyte Co., Inc., in the sum of $150. Bingham objected to the Application on behalf of the plaintiffs on the following grounds:
[T]he Receiver has failed to properly document and account for Plaintiffs’
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work-in-process, inventory, equipment, contract receivables and contract rights existing as of the date of his appointment. The Plaintiffs further state that the Receiver had failed to account for and recover corporate funds which were fraudulently negotiated and wrongfully converted to the account(s) and/or benefit of unrelated third parties.
99
Decoulos admitted that he did not file an inventory of the estate’s assets within 30 days as required by the Order of Appointment.
100
He testified, however, that he kept contemporaneous time records for purposes of billing the receivership for his professional services and that it was unnecessary for him to work more than 57 hours to fulfill his duty to the court with respect to the filing of an inventory, even though he had not succeeded in getting “a handle on the whole situation.”
101
In this First Receiver’s Report, Decou-los reported that he had received and deposited $97,455.37 from seven contracts and that he had expended $20,596.93.
102
Specifically he stated that he paid Everett Aluminum Products, Inc., Conti’s company, a total of $7,772. Although the court in its orders approving Decoulos’s first two Applications for Orders permitted Decou-los to complete certain contracts, Decoulos did not disclose or justify why payments to the defendants in the Essex Action were necessary, and he did not disclose to the court that NEBP was operating at ABP’s former place of business.
Decoulos, in his First Report, stated that the inventory, which Mahoney estimated had a value of at least $120,000, was appraised by Hyte at $750: “An appraisal of the inventory was made and the Receiver was informed by the appraiser that only metal used to fabricate the corporations’s product was found on the premises and that it had a value of $750.”
103
Additionally Decoulos reported the following about ABP’s equipment and personal property
[it] was surrendered to the Receiver by a third party who had taken possession thereof and
it was restored at the place of business of the corporation.
Since that time the personal property has been removed and there has been no accounting made by any person. The last time that the Receiver saw the equipment it was in the possession of John Conti and Robert Conti who, together with Donald Robson, completed the contract as allowed by Order # l.
104
Decoulos did not report that there was a dispute as to the ownership of the equipment, that it was being used by NEBP, and he did not discuss the claims in the Essex Action, which he admitted were assets of the receivership.
105
He did not report that he had, in effect, resolved the dispute in favor of the defendants by letting the Contis obtain and retain possession of the personalty. Decoulos’s representations to the court were so vague and devoid of substance that they constituted an admission that he failed to conduct a proper inventory and to secure possession
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of the equipment and materials, particularly as he had obtained court authority on November 20, 1993 to vacate the premises and NEBP was operating from them.
Decoulos also stated that his accountant had reviewed all records that “came into the possession of the Receiver” but that “he could find no checks and that the disbursement sheets of the corporation for the period June through April, 1993 were missing.”
106
He also testified that the premises in Lynn looked like the inside of a dumpster and that he did not make an effort to find the books and records of ABP because he was “not in the habit of looking inside dumpsters.”
107
Decoulos attached to his Report a balance sheet as of December 31, 1992, a Statement of Earnings and Retained Earnings, and a Statement of Cash Flows. According to the account employed by De-coulos, for the year ended December 21, 1992, ABP had total sales of $937,890, in contrast to contract income of $1,895,497 for 1991; gross income of $380,693, in contrast to the gross profit of $471,773 for the year ended December 31, 1991; and net earnings of ($467,692), in contrast to the net income of $121,282 for the year ended December 31, 1991.
108
Although Attorney Mackey had informed Decoulos that Conti had a judgment of $225,000 for non-payment of rent, the accountant’s report reflected the payment of $50,640 in rent.
Decoulos submitted a list of 41 creditors with his Report, showing that ABP’s accounts payable totaled $379,694.84. The list included Everett Savings Bank with a debt in the sum of $46,955.38 as well as Mahoney with a debt in the sum of $44,896.96. USTrust was not mentioned in the Report,
109
a circumstance from which this Court infers, and Decoulos’s Statement for Professional Services Rendered corroborates, that Decoulos did not conduct a UCC search to determine the extent and priority of liens, including tax liens, against ABP’s assets. The accountant, whose work papers were attached to Decoulos’s Report, listed accountants payable in the sum of $323,504 on the balance sheet (approximately $50,000 less than the total on the creditor list), together with notes payable in the amount of $311,409, plus accrued expenses, payroll taxes and withholding taxes for total current liabilities of $647,979.
Although Bingham had objected to De-coulos’s Report and Application for Order # 6 on behalf of ABP, the court, on June 15, 1994, granted Decoulos’s Application for Order # 6 authorizing him to pay fees to his appraiser and accountant and to himself the sum of $11,540. Although the court failed to sustain ABP’s objection, in a letter dated to June 22, 1994 to Everett Savings Bank’s counsel, Mark E. Tully, Esq. (“Tully”), Bingham stated:
It would appear that the pendulum has finally begun to swing in favor of my clients. After a rather lengthy presentation,
Judge Brady opined that this case has a strong stench about it.
As
a result, he ordered the Receiver to adopt
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an aggressive/adversarial role in both ascertaining the truth and tracking down wrongfully converted assets of the companies, including contracts, receivables, fraudulently endorsed instruments, inventory and
equipment.
110
In his letter, he also stated there was $401,478 in “fraudulently endorsed checks.”
111
Approximately one month later, in a letter dated July 20, 1994, Bingham advised Tully that he had spoken with the Acting Commissioner of Banks for the Commonwealth of Massachusetts and that the conduct of Everett Savings Bank in permitting fraudulent endorsements and deposits to “non-related third party accounts” was “patently illegal” and that transfers of funds from accounts by someone who was not a signatory was “tantamount to larceny.”
112
On the - same day, Bingham forwarded various documents to Decoulos, including a police report dated July 14, 1994. According to the report, a Lynn police officer met Agarwal at the apartment of Henry Gonzalez, a former ABP employee, where various items of equipment belonging to ABP were found, including a blue print machine purchased and paid for by ABP in early 1993. Bingham stated:
Obviously, this is in direct contravention of what had been represented to you. It is also a blatant disregard of Judge Forte’s previous order to
all parties
to surrender
all assets
to you as Receiver. I would strongly advise that Mr. Gonzalez be summoned in before Judge Brady to be examined as to what he knows in this matter and what additional assets/work product of American Bridge he might be holding. I would also advise that a Complaint for Contempt be sought against Robert Conti, John Conti and Donald Robson for their blatant disregard of your’s and the Court’s orders.
113
Despite the court’s direction to Decoulos in June 1994 to take more aggressive action, and the reference to fraud,
114
neither Decoulos nor any of the parties to the Essex Action filed any pleadings until September of 1994. Bingham, however, was busy writing letters to the Everett Savings Bank, stressing its liability and proposing a settlement,
115
as well as to Decoulos, urging him to take steps to secure the machinery, equipment, and inventory. Bingham advised Decoulos that he had “a rigging company ready to load and move the equipment at your immediate disposal.”
116
On September 6, 1994, Decoulos filed Application for Order # 7 in which he sought a short order of notice to issue against NEBP, Conti, John Conti, Henry Gonzalez, and Donald Robson “ordering them to appear and show cause why they, or any one of them, have not surrendered to the Receiver all of the property described on Exhibit 1, Exhibit 2 and Exhibit 3.”
117
In his Application, Decoulos represented that he had been informed by Bing-ham and Mahoney that property described on Exhibit 1 was owned by ABP and was in the possession or under the control of the named defendants and that property
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identified on Exhibits 1 and 2 was sold to ABP “by Kilroy, Cesar Martinez or Robert Conti.” He added: “On July 14, 1994, a view at the property that was formerly occupied by American Bridge Products at 93-95 Brookline Street, Lynn, Massachusetts, was taken by the Receiver together with G. Shepard Bingham, Esquire, William Mahoney, Frank Kilroy, Robert Con-ti, John Conti, and Donald Robson, and the Receiver observed the equipment listed on Exhibit 3.”
118
Decoulos also mentioned the property located at Henry Gonzalez’s apartment.
119
ABP, through Bingham, moved to amend Decoulos’s Application for Order # 7. Bingham asserted that the property listed on Exhibits 1 through 3 should be surrendered and stored in an appropriate warehouse facility and that Everett Savings Bank be ordered to account for and surrender to the Receiver “all monies represented by checks drawn to the order of American Bridge Products, Inc. from and after January 1, 1992 which were thereafter fraudulently endorsed and wrongfully
deposited
by said Bank to various “non-Bridge” [sic] accounts maintained thereat by several of the Defendants named herein ”
120
In mid September 1994, the court issued the order of notice requested by Decoulos, but deferred a ruling on ABP’s Motion to Amend. Additionally, it discharged De-coulos as Receiver of Agar Industries, Inc.
121
Bingham, as usual, continued to correspond with Decoulos. In a letter dated September 20, 1994, he outlined, in detail, demands for production of documents De-coulos should address to Everett Savings Bank and the other defendants.
122
He suggested that Decoulos contact USTrust and “ask it to produce a copy (front and back) of the actual loan proceed check supposedly supporting the original promissory note to
American Bridge
Railing.”
123
He added: “I am sure you will that find [sic] the proceeds went directly to Mr. Conti’s account; he signed the first note and only subsequent thereto did Caesar [sic] Martinez execute an assumption of that note as President of American Bridge Products, Inc.”
124
Decoulos filed an Application for Order #8 for the purpose of retaining Neal A. Price & Co. to review the documents produced by Everett Savings Bank. The court entered the order Decoulos requested on September 26, 1994. Approximately two weeks later, Decoulos filed an Application for Order # 9 seeking an order requiring Everett Savings Bank “to furnish to the Receiver all of the documents set forth in the Plaintiffs First Request for Production of Documents to Everett Savings Bank, which documents would also include those relevant to New England Bridge Products, Inc.”
125
Decoulos noted that the court had ordered him on September 20, 1994 “to review the documents of the Everett Savings Bank.”
126
Decoulos also sought au
*300
thority to sell the blue print machine to John Conti for $800.
127
ABP, through Bingham, objected to the Application for Order # 9. Bingham sought to amend the order to require the defendants to surrender, and the Receiver to store, all the property listed by the Receiver in the Exhibits attached to his Application for Order # 7. He also sought an order requiring the defendants to account for and surrender to the Receiver $620,392.82 in receivables seized by the defendants. Citing the receivables and evidence that no less than $401,478 in checks made payable to American Bridge Products, Inc. were fraudulently endorsed and thereafter deposited or transferred to one or more of the defendants with the assistance of the Everett Savings Bank, he stated “it is premature to begin disposing of American’s assets.”
128
Although the court denied ABP’s Motion to Amend, it is unclear whether it entered the order for production of documents by Everett Savings Bank requested by Decoulos.
129
In November of 1994, ABP moved to amend its original Complaint filed on August 25, 1993 to add NEBP as a defendant and to add two counts against it for conversion and intentional interference with advantageous contractual relationships. The court allowed ABP’s motion on December 29, 1994, the same day it allowed Decoulos’s Application for Order # 10 through which he requested fees totaling $5,240 for 26.2 hours of time spent between September 9, 1994 and December 8, 1994.
130
While Decoulos received compensation for his services, Bingham’s efforts to be compensated or employed as special eoun-sel to the Receiver
nunc pro tunc
were unsuccessful because Decoulos believed that Bingham had a conflict of interest. In a December 1, 1994 letter to Decoulos, Bingham, after enclosing a list of checks/receivables not properly credited to ABP and commenting on the documents produced by Everett Savings Bank, stated the following:
In response to your comment regarding Judge Brady’s expressed desire to secure payment of my legal fees, I wholeheartedly endorse his sentiment. In this regard, I would once again ask for your help.
‡ sjc * *
*
*
I am advised that the Receiver clearly has the authority to file a Application [sic] authorizing my employment — nuc [sic] pro tunc — as special counsel to aid in both the collection of assets belonging to the debtor and in resolving claims against its estate. Clearly, the record is replete with evidence that I have done everything possible to enhance the debt- or’s estate; i.e., uncovered improperly converted equipment, inventory, receivables and contractor back charges. I have also vacated a $200,000.00 judgement [sic] against American Bridge from the Lynn District Court.
*
* * * * *
The only parties who would object to my being paid are the those [sic] who committed the fraud in the first instance. All you have to do is bring the Application For Order; let Judge Brady do the rest. I would be deeply appreciative as I just cannot continue to subsi
*301
dize the further prosecution of this case on my own.
131
Decoulos refused Bingham’s request.
In January of 1995, approximately fifteen months after his appointment, De-coulos filed Application for Order # 11. He sought copies of all cash receipt journals, and the deposit slips utilized by the Amity Realty Trust, Agar Industry Company, Agar Industries, Inc., RCPC, Avenue Finance, NEBP, and ABP. The Application was granted on January 4, 1995. On February 27, 1995, Decoulos filed an Application for Order # 18 seeking an order compelling the parties identified in his Application for Order # 11 to comply with the court’s order because “none of the parties have responded to that Order.” He also sought an order compelling Everett Savings Bank to furnish the documents set forth in his Application for Order # 9.
132
The court denied Decoulos’s Application without prejudice for failure to file a Rule 9A certificate. Decoulos did not refile his Application for Order # 13.
In the winter of 1995, Decoulos sought and obtained an order authorizing him to mail proof of claim forms to the creditors of ABP. At around the same time, the court allowed a Motion for Ex-parte Approval of Trustee Process Attachment in the sum of $232,881 filed by ABP, through which it sought trustee process attachments against the Shawmut Bank and Somerset Savings Bank with respect NEBP’s alleged conversion of receivables from various ABP contracts and inventory.
133
The Motion was supported by Ma-honey’s affidavit.
134
In his Receiver’s Report # 2, Decoulos reported that “the sum of $17,971.34 is being held by the Trustees.”
135
He added: “The Court should order this amount to be placed in an interest bearing account to be held by the Trustee or by the Receiver.”
136
In late January or February 1995, Bing-ham moved to be appointed special counsel to the Receiver
nunc pro tunc.
Decoulos, as well as Conti and Everett Savings Bank, opposed his motion. The court denied Bingham’s motion, noting that the Receiver had not petitioned for appointment of counsel.
137
Throughout the spring of 1995, Bingham continued to correspond with Decoulos, urging him to take forceful action. For example, in a letter dated March 17, 1995, he stated his belief that a Motion/ Application for Order directing NEBP to surrender wrongfully converted receivables should be filed. He concluded: “In my opinion, your failure to undertake such an action will seriously impair and prejudice the rights of American’s legitimate creditors as well as those of my clients.”
138
Decoulos demurred: “I am sorry to say I cannot do that. I recently received a communication from New England Bridge indicating that they [sic] did not convert those receivables. Accordingly, I would need a judgment of the court before complying with your request.”
139
On March 24, 1995, Bingham again wrote to Decoulos, advocating a more ag
*302
gressive approach to his duties. He noted that, after reviewing the “Proof of Claims Summary Sheet,” $1,107,151 of the total claims submitted were held by parties to the Essex Action. He also noted US-Trust’s claim was suspect because the proceeds may not have gone to ABP. He concluded:
For too long, the burden has been unfairly placed on American to prove its ownership interest in the above items. Of course, the presumption should have run in its favor from the beginning; nevertheless, having now shown fraud, deceit and wrongful conversion,
still
no action is being taken by you against the respective Defendants. It is incredulous [sic] to me that in the face of all the
hard evidence
presented by the Plaintiff (i.e. actual fraudulently endorsed/improperly deposited checks and the PSI [Puffer] Reports) you would simply rely on an unsworn statement by the Defendants, who
you know
have repeatedly lied to you in the past, denying improper conversion of assets. The burden is on them to
prove
such a statement; until they can do so, the burden is on you to seize and protect American’s property.
140
Less than one week later, in a letter to Decoulos dated March 30, 1995, Bingham discussed the “PSI [Puffer] contract files subpoenaed by this office for your analysis.”
141
He observed that “the ball has again been dropped regarding Everett Savings Bank’s production of documents,”
142
a matter he stated was related to “our ability to trace misappropriated receivables and fraudulently endorsed checks.”
143
Finally, Bingham warned that “as each day passes, the Defendants are given greater opportunity to ‘cover tracks’ and conceal assets which might otherwise be attached for American’s benefit.”
144
In April of 1995, Bingham continued to exhort Decoulos. On April 7, 1995, he advised Decoulos that NEBP had received $55,000 in November and December of 1994 “from Sciaba for the Williamstown job.” He observed: “Had you undertaken a proper investigation and steps to secure such receivables at that time, American Bridge’s estate would be considerably improved as of this writing.”
145
On April 24, 1995, Bingham forwarded Decoulos a copy of his March 24, 1995 letter, warning as follows:
[U]nless you move to both seize and store American Bridge’s machinery and equipment while attaching the various Defendants’ real and/or personal assets in order to secure American Bridge’s legitimate claims on or before May 10, 1995, I have been instructed to file a Motion seeking an immediate accounting as well as your removal as Receiver.
146
On May 11, 1995, one day after the deadline set by Bingham, Decoulos filed Application for Order # 14, requesting authority “to institute the necessary legal proceedings in the Suffolk County Superi- or Court to set aside a Judgment rendered in favor of U.S. Trust [sic] Company against W. Sims
&
Associates, Inc., d/b/a American Bridge Products, Inc. in the amount of $252,175.52;” “to institute the
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necessary legal proceedings to depose all of the Defendants and the vendees of the Defendants;” “to institute the necessary legal proceedings to attach assets of all of the Defendants;” and “to enter into a contract to store the personal property of American Bridge Products, Inc.”
147
In support of his Application # 14, Decoulos represented to the court that the institution of legal proceedings was necessary “in order to secure the payment of any judgment that the Receiver may obtain against those parties for obtaining funds subsequent to his appointment as Receiver, which funds the Receiver believes belong to American Bridge Products, Inc.”
148
He added “the Defendants have retained possession of personal property belonging to American Bridge Products, Inc. and the stockholders of American Bridge are of the opinion that the personal property should not be sold to any third party, including any of the Defendants, and that the personal property should be stored in a warehouse until these proceedings are concluded.”
149
Decoulos further sought authority to institute proceedings to vacate the judgment obtained by USTrust on June 30,1994, noting that he had “requested the attorney for U.S. Trust [sic] on more than one occasion to reveal to him the original documents which created the obligation that the U.S. Trust claims to be due.”
150
In accordance with his representations to the court and the entry of Order # 14, Decoulos did file a motion to vacate the judgment obtained by USTrust.
151
Decou-los was unsuccessful in his effort to vacate the USTrust judgment and, on June 20, 1995, he filed a notice of appeal.
152
These actions, as well as others, unequivocally establish that Decoulos performed legal services in addition to acting in his capacity as receiver. Decoulos, however, did not take any of the other actions authorized pursuant to order entered by the court granting his Application for Order # 14.
On June 2, 1995, Decoulos filed Application for Order # 15, seeking a short order of notice against Conti, John Conti, NEBP, and Henry Gonzales “ordering them to appear and show cause why they, or any one of them, have not surrendered to the Receiver all of the property described on Exhibit 1, Exhibit 2 and Exhibit 3.”
153
The relief requested by Decoulos was identical
*304
to the relief he requested ten months earlier in his Application for Order # 7. In his June 2, 1995 Application, Decoulos stated: “At the hearing on that Order of Notice, it was never fully determined by the Court who in fact does own the property listed on Exhibit 1, Exhibit
2
and Exhibit 3.”
154
Although he obtained court orders requiring the turnover records, he never sought contempt orders against the defendants for their failure to furnish him with the requested records.
155
Decoulos testified that he only obtained checks and corporate records from the Contis in the spring of 2004.
156
On July 14, 1995, Decoulos filed Receiver’s Report #
2
for the Period June 3,1994 through July 13, 1995, noting that he had cash on had of $95,820.30.
157
He reported that he had received $37,333 with respect to a contract with Sciaba and had expended $19,409.75 for professional fees and other expenses, including the payment of $16,780.00 to Decoulos & Decoulos. In his report, he concluded Kilroy was not a stockholder of ABP and that ABP’s allegations that NEBP converted work in progress to its own use and received funds from the vendees of the contracts completed through the use of work in progress “appear to be valid.”
158
Additionally, he reported receipt of proofs of claim totaling $1,640,428.05, including a $507,000 claim filed by Avenue Finance, a $29,157.15 claim filed by Bingham, a $114,000 claim filed by John Conti, a $216,134.02 claim filed by Robert Conti as Trustee of RCPC, a $73,7000 claim filed by Conti, a $51,420.20 claim filed by Everett Savings Bank, a $100,000 claim filed by Kilroy, a $44,896.96 claim filed by Mahoney, and $252,175,532 claim filed by USTrust. De-coulos reported that he was unsuccessful in getting USTrust’s default judgment vacated and had filed an appeal. At the conclusion of his Report, he requested that he be allowed “to complete discovery,” that “the Everett Savings Bank claim be resolved,” that he be “ordered to enter into negotiations to resolve the claim of the USTrust,” and that “action be taken on the Proofs of Claim as to whether they should be approved or disapproved.”
159
On July 19, 1995, the court entered an order requiring Conti, NEBP, John Conti, Henry Gonzalez, and Donald Robson to “immediately and forthwith, but no later than 72 hours from the date of this Order, communicate with the Receiver and within 48 hours thereafter surrender and deliver all of the property listed on Exhibits 1, 2 and 3 to the Receiver.”
160
The court further directed: “The Receiver is to immediately cause an inventory and appraisal to be made of the property and determine the cost of moving and storing the property and to report to the Court no later than August 15, 1995, as to the property received and the cost of moving and storing that property.”
161
The same day it entered that order, the court awarded the Receiver $7,370.44 in fees pursuant to his Application for Order # 17, bringing the total fees awarded to him to $24,150.44.
162
Five days before awarding Decoulos his fees for services performed between December 12, 1994 and June 29, 1995, the
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court, on July 13, 1995, denied the Plaintiffs Motion to Remove Nicholas J. Decou-los, Esq. as Receiver of American Bridge Products, Inc. In an endorsement order, the court sated: “After hearing parties, I find no cause to remove the Receiver.”
163
In its Motion to Remove the Receiver, ABP, relying upon a six-page, single spaced Affidavit executed by Kilroy on June 9, 1995, had averred that “[t]he Receiver by his acts of omission and/ or commission, all as set forth more particularly in the attached Affidavit, failed to gather and preserve the assets of ABP; he has allowed the same to be stolen and/or otherwise wrongfully converted and/or dissipated by the Defendants.”
164
Prior to filing the Motion on behalf of ABP, Bingham wrote to Decoulos on July 3, 1995 stating that ABP would look to him “to compensate it for any losses and/or damages sustained as a result of the Receiver’s obvious delay tactics.”
165
Bingham also raised an issue as to when Decoulos learned of US-Trusf s Motion for Partial Summary Judgment, suggesting that he had “ample opportunity to intercede on American Bridge’s behalf and interpose a good and meritorious answer/defense, thereby quite possibly avoiding any liability for the debt claimed due.”
166
At the same time Bingham was writing to Decoulos, he was corresponding with Barton K. Hyte Co., Inc. On July 13, 1995 Hyte, noting that he had received a subpoena to appear in court on July 14, 1995, indicated that he conducted an appraisal of certain assets in December of 1993. He further stated to Bingham that “Mr. De-coulos instructed us to contact Mr. John Conti to make arrangements for our on site inspection.”
167
Both before and after the denial of the first Motion to Remove the Receiver, Bingham’s correspondence with Decoulos became less conciliatory. On June 28, 1995, he observed that NEBP filed its Quality Control Manual and Equipment List with the Massachusetts Highway Department using the equipment listed on Exhibit 1 to Decoulos’s Applications for Orders # 7 and # 16. He stated: “Interestingly enough, Exhibit # 1 was the actual Equipment List submitted therewith and said document was attested to by John Conti. Said Manual and List was re-certified as of June, 1994. Now, if said equipment existed on 9-28-93 and 6-94,1 would suggest that it better damn well exist today — or—you, as Receiver, have some hard questions to answer to.”
168
Approximately one month after receiving this letter, Decoulos arranged for Hyte to visit the Brookline Street property again. On July 31, 1995, almost two years after Decoulos’s appointment, Hyte reported that he had been to Lynn “for the purpose of evaluating and conducting a thorough on site inspection of the assets.”
169
In a letter to Decoulos, dated August 10, 1995, he stated “we ... feel assured that all the assets in question were
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viewed.”
170
He stated that the assets were separated into two categories: the furniture, fixtures and equipment (“FF & E”) left on the premises by American Bridge and the FF & E claimed as property of John Conti.
171
He opined the following:
The inspected FF & E was either obsolete, exceptionally old or in poor condition. The AC welding equipment is no longer approved for certain applications is extremely old and in generally poor condition therefore accounting for our low opinions of value placed. A major portion of the larger machinery is virtually inoperable and in our opinion would have a value for salvage only. The inspected facility was not well organized and would be considered disorderly with debris throughout the inspected buildings. We understand that the nature of this business may lend itself to being in a various stage of containing debris, but in our opinion the amount of scrap, older and rusted obsolete stock should not be at the site....
We arrived at our opinion of value in the range of $10,033.00 for the assets belonging to American Bridge and $7,165.00 for the assets claimed as property of John Conti for an aggregate dollar recovery amount in the range of $17,198.00 if sold at a properly organized, advertised and conducted “Public Auction Sale.”
172
Hyte also opined that the “In Place” value of the assets, namely the value if the assets were to remain where they were and used for the purpose for which they were purchased taking into consideration the costs of re-purchasing, transportation, applicable taxes, fees, electrical and all related expenses, was $15,049.50 for the assets belonging to American Bridge and $14,330.00 for the assets claimed as property by John Conti.
173
Finally, he stated that removal costs for riggers and movers would be in the range of $9,000 to $12,000 excluding storage which would cost a minimum of $600.00 per month. He indicated that a decision to incur such costs would be neither prudent nor cost effective.
174
Although in his Receiver’s Report #2, Decoulos indicated that ABP’s claims against NEBP appeared to have merit, he took no immediate action. In the fall of 1995, Bingham, on behalf of ABP, filed “Plaintiffs Motion for an Evidentiary Hearing to Determine the Amount of Its Accounts Receivable Wrongfully Converted by the Defendant, New England Bridge Products, Inc., and, thereafter, for the Appointment of a Receiver to Seize, Secure and Take Possession of the Accounts Receivable of Said New England Bridge Products, Inc. Pending Resolution of the Within Matter,”
175
as well as a second Motion to Remove the Receiver.
176
The court denied the request for an evidentiary hearing, and it denied the Motion to Remove the Receiver on October 17, 1995, the same day it authorized Decoulos to pay Barton K. Hyte & Co., Inc. $1,500 for appraisal services pursuant to Application
*307
for Order # 18.
177
The court gave no reasons for its decisions in its endorsement orders. Its decision to consider the second Motion to Remove Receiver, however, is indicative that the court did not consider the denial of the first motion to have collateral estoppel effect with respect to the second motion.
At the end of 1995, Decoulos and Bing-ham continued to exchange letters. On December 7, 1995, Bingham advised De-coulos that ABP’s case against the defendants had been placed on the trial list for January 2, 1996. He stated that “it is my belief that the responsibility of prosecuting American Bridge’s claims falls squarely on your shoulders.” He added: “I believe this was the specific conclusion reached by Judge Brady at your very behest.”
178
In a letter dated December 18, 1995, Decoulos, citing Rule 11, stated: “I wish to advise you that I do not concur with your belief that it is my responsibility to prosecute the claims of American Bridge, the reason being that I did not file the pleadings.”
179
He added that he never sought authorization to prosecute the claims of American Bridge, noting that “[i]f I did intend to prosecute these claims, you can rest assured that I would have all of the facts before me, which I do not now have, in order to make the appropriate representations to the Court.”
180
In an earlier letter to Bingham dated September 19, 1995, Decoulos had stated: “I will not expose myself to any claims or additional litigation.”
181
Decoulos’s response to Bingham is at odds with the contents of his Application for Order # 14 in which he strongly intimated to the court that he would be pursuing the action against the defendants. In that Application, to repeat, he requested authority “to depose all of the Defendants and the vendees of the Defendants” and “to institute the necessary legal proceedings to attach assets of all of the Defendants” because he believed “monies have been misappropriated by the Defendants.”
182
Bingham responded with outrage to De-coulos’s letter of December 18, 1995. In a letter dated December 22, 1995, he noted that he had offered to act as special counsel to Decoulos on four separate occasions to conduct the trial of the matter but was rebuffed. He stated: “in each instance, you not only filed your written objection thereto
but
also argued orally against the same — repeatedly stating to the Court that you didn’t require any assistance in the prosecution • of American Bridge’s claims.”
183
He added: “In fact, shortly after one [of] my companion Motions to secure your removal, all of which were also denied, wasn’t it you who, in an effort to appease me and show some semblance of competency, secured an order approving your taking the depositions of all of the defendants in this case. Of course, you didn’t take a single deposition and now you want out!”
184
Bingham concluded his letter by advising Decoulos that the claims/ causes of action were assets of the estate just like inventory and equipment.
The trial did not go forward on January 2, 1996. Judge Fremont-Smith, however,
*308
issued an order requiring the Receiver to file a report, presumably a draft report, by January 15, 1996. He also ordered counsel to meet with the Receiver on January 22, 1996 and the Receiver to file a report by January 29, 1996. The court scheduled a conference for February 5,1996.
Decoulos filed his Report # 3 on January 30,1996, together with Applications for Orders #20, #21 and #22.
185
Through Application for Order # 20, Decoulos sought authority “to sell the personal property for the reason that the property cannot be utilized by the Receiver or by the Corporation in the conduct of its business.”
186
He averred that it would be in the best interest of the Corporation for the Receiver to sell the personal property, even though the validity of liens and mortgages had not been determined. He represented that NEBP had made a $6,000 offer for the personalty and that Hyte had informed him that it would cost $3,000 to conduct the auction sale. Decoulos did not specifically identify the property he proposed to sell.
Through Application for Order # 21, De-coulos sought authority to dismiss the claims of ABP against Martha Talbot, RCPC, and INTS, Inc. because “[t]he Receiver has been given no factual evidence that any of the claims against [these defendants] ... have any validity” and that it would be in the best interest of the corporation to have those claims dismissed, with prejudice.
187
Decoulos sought permission to dismiss the counts against these defendants, even though he also testified that he would have needed to obtain court authority to prosecute the Essex Action.
188
Additionally, through Application for Order # 22, the Receiver sought an order requiring the stockholders and the principals of New England Bridge Products, Inc. to furnish records, within ten days, although he did not specify what records he wanted.
189
On February 6,1996, the Superior Court entered an order granting the Receiver the authority to employ Barton K. Hyte Co., Inc. to conduct a public auction for the purpose of selling ABP’s personal property to the highest bidder. The court, in the alternative, authorized the Receiver to sell the personalty to John Conti if he paid the Receiver $6,000 within seven days of the date of the order. The court also authorized the Receiver to dismiss ABP’s claims against Talbot and INTS, Inc. It directed RCPC, however, to file a motion for summary judgment. Finally, the court directed NEBP to furnish its records to the Receiver within ten days of the date of its order.
The Receiver’s Report # 3 covered the period from July 14, 1995 through December 31, 1995.
190
Decoulos reported cash on had of $88,480.95, as well as payment of fees to himself ($7,370.44), to Barton K Hyte Co., Inc. ($1,500.00), and to CSC Networks for corporate documents for W. Sims
&
Associates ($44.00). Additionally, Decoulos reported that ABP claimed to be owed $196,724.07 for work it completed and the balance due on other contracts
*309
totaling $856,220.78. He also outlined ABP’s claims in both the Complaint and Amended Complaint, count by count, against the defendants and stated that he had obtained documentation from the various parties relating to the claims and defenses of the defendants.
With respect to ABP’s claims against Everett Savings Bank he stated the following:
“Everett Savings Bank admits that funds were diverted from American Bridge to entities owned by Robert Conti.
Everett Savings Bank has submitted to the Receiver an accounting.... According to this accounting Conti could claim an overpayment in the amount of $41,-260.38.”
191
In a chart, attached to his Report, he listed 25 checks payable to ABP or ABP and Avenue Finance totaling $337,594.18, which were deposited to Conti Entity Accounts, noting that $378,854.56 was deposited in ABP’s accounts at Conti’s direction. In the conclusion of his Report, Decoulos stated: “There is no question that the Everett Savings Bank acted improperly; however, American Bridge did not suffer any damages as a result of this impropriety.” Decoulos recommended dismissal of the claims against the Everett Savings Bank. In his testimony, Decoulos justified his conclusions with reference to an IRS lien, which he admitted he never investigated.
192
Indeed, no evidence was submitted to substantiate whether the IRS had a lien against ABP’s property and, if so, the amount of the lien. Indeed, Decou-los did not list the IRS among the creditors in his appendix to his Report # 3.
193
Decoulos’s statement in his letter' to Bingham that he did not have “all the facts” before him
194
is irreconcilable with his representations in his Report # 3, which contained unequivocal recommendations as to how the Essex Action should be handled, namely dismissal of ABP’s claims against most of the defendants, including dismissal of the claim against Everett Savings Bank. Indeed, Decoulos’s recommendation that dismissal and abandonment of the claims were warranted was an admission that he, in fact, was responsible for and controlled the Essex Action, even though he stated to Bingham that “I have never sought nor have I been authorized to prosecute the claims of American Bridge.”
195
With respect to ABP’s claims that NEBP used its material to complete contracts — contracts which Mahoney testified had a value to ABP in September of 1993 of approximately $740,000 — Decoulos reported that ABP had contracts worth $691,105.95 at the commencement of the receivership and that he collected $70,713.13. Decoulos stated that NEBP claimed that it received money from various former ABP vendees as a result of
new
contracts with those vendors and that it paid ABP’s outstanding indebtedness to various vendees.
196
In Report # 3, Decoulos identified several issues: whether NEBP owed money to ABP for fabricated material found on site; whether it was entitled to credits for payments it made to ABP’s suppliers; whether ABP was entitled to the profit made by NEBP in completing the con
*310
tracts; and whether NEBP would be entitled to costs it incurred in completing the contracts. Decoulos concluded, based upon the summary of the contracts, that ABP was “possibly entitled to a surplus of $60,529.12,” absent a credit for payments made by NEBP to vendors, adding that “[t]his amount could be further reduced if New England makes a claim for completing the work.”
197
He did not address whether in fact NEBP actually entered into new contracts with ABP’s customers for completing its contracts or whether it was proper for NEBP to pay some, but not all, of ABP’s creditors who would otherwise have had to file proofs of claim in the receivership proceeding and share pro rata with other similarly situated creditors of ABP with allowed claims.
198
In his Report # 3, Decoulos summarized various contracts as follows:
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Of the contracts listed above, Decoulos obtained court authority to complete four contracts: Sciaba (BR-84), Gagliarducci (BR-86), Cardi (BR-87), and Petricca (BR-91) through Application for Order #2. ABP had fully performed two contracts, BR-86 and BR-96. Decoulos did not seek court authority to complete the remaining two contracts, BR-93 and BR-94. He noted that the proceeds of BR-75 were pledged to Avenue Finance; that the proceeds of the BR-84 were pledged to Everett Savings Bank; that a check issued by Cardi was improperly negotiated by ABP’s former attorney, Webber, and that the total received by NEBP, i.e., $176,078.48, did not reflect “completing Contract BR-75 and BR-84 or any work, if any, that may have been performed to complete the contracts on the site after the material was delivered to the site.”
199
With respect to the T.A. Loving contract, a $230,680.40 contract which he had obtained authority to complete through his Application for Order # 2, Decoulos noted that “New England Bridge alleges that T.A. Loving informed the Receiver that a notice of termination was mailed to American Bridge at its addresses in Lynn and Methuen, Massachusetts.”
200
Decoulos
*311
add that he “did inform the attorney for T.A. Loving that he would seek an order terminating the contract and also informed the attorney that it was not the intention of the Receiver to complete the contract and requested a general release relieving American Bridge of any liability.”
201
He added that NEBP subsequently entered into a contract with T.A. Loving and completed the contract for $153,852 less a $2,000 payment for attorneys’ fees.
202
Finally, Decoulos discussed the so-called claims of the stockholders. He stated:
The claims set forth in this report do not affect the claims of the stockholders as a result of the alleged improprieties by the defendants relating to the improper negotiation of checks, conversion of assets, the interference with advantageous contracts and other claims that the stockholders may allege for the conversion of funds which were ultimately refunded to American Bridge but for the period that those were withheld, American Bridge was unable to meet its obligations to its creditors. G. Shepard Bingham, the attorney for the stockholders, has stated that it is the intention of the stockholders to amend the complaint and include the stockholders as parties plaintiff against the defendants....
203
Finally, Decoulos recommended that the claims against the NEBP, the Contis, Avenue Finance, Everett Aluminum and Donald Robson should be settled or litigated. He admitted, however, that he did not “have in his possession the additional documentation that would be needed to resolve the claims,
204
even though the Superior Court had ordered the defendants, including NEBP, to produce documents.”
After the Receiver filed his Report # 3, he filed a Joint Stipulation of Dismissal and an Application for Order # 23 seeking $12,795.12 for his services. RCPC filed a motion for summary judgment, which appears never to have been addressed by the court. Agarwal and Kilroy moved to be named as additional parties plaintiff, but their motion was denied by the Superior Court without explanation. On April 30, 1996, USTrust moved to intervene in the Essex Action. Its motion was allowed. On July 17, 1996, the court issued a trial notice for September 11, 1996.
205
On August 30, 1996, less than two weeks before the trial, an involuntary petition was commenced against ABP. The involuntary petitioners included USTrust, Kilroy and Mahoney.
Decoulos moved to dismiss the involuntary petition on September 23, 1996. In his Motion to Dismiss, he made the following representations to this Court:
The entire matter is presently pending before the Essex County Superior Court and was scheduled to be heard on September 11, 1996, and was continued as a result of the suggestion of bankruptcy filed by Michael Gilleran, representing U.S. Trust. There remains outstanding issues to be determined by the Superior Court; [sic] (a) a claim against the Everett Savings Bank for conversion, (b) a claim against New England Bridge Products, Inc. for conversion of work in process.
206
He added:
In view of the fact that the estate has almost been completely administered, it
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would make no economic sense to add additional administrative costs. The Superior Court forum has protected all of the rights of all of the parties and there is no need for intervention by the Bankruptcy Court to reach any additional solution.
The proofs of claim have been filed and all of the claims made by the parties in the case pending in the Superior Court have been adjudicated,
except for the two remaining issues [with respect to the Everett Savings Bank and NEBP] which can been [sic] appropriately litigated at the Superior Court level.
207
This Court denied the Receiver’s Motion to Dismiss. Although Decoulos represented that all of the claims had been adjudicated, neither the docket from the Essex Action nor his Statements for Professional Services Rendered support this assertion, unless Decoulos intended to accept the proofs of claims as filed in the receivership without objection, including the claims of Avenue Finance for $507,000, RCPC for $216,134, Robert Conti for $73,700, as well as those of the petitioning creditors, Kilroy for $100,000, Mahoney for $44,896.96, and USTrust for $252,175.52. Decoulos testified, however that, at least with respect to Conti’s claim, his proof of claim was never approved.
208
Decoulos never filed a formal accounting or report in this case with respect to the property of ABP or his administration as required by 11 U.S.C. § 543 (b) and Fed. R. Bankr.P. 6002. The Essex Superior Court never entered an order discharging Decoulos as Receiver prior to closing the action commenced by ABP.
209
D.
Decoulos’s Testimony
Decoulos testified that he and his son and fellow partner in the firm of Decoulos & Decoulos were the sole signatories of the law firm’s operating checking account. Additionally, he stated that when the court authorized compensation pursuant to his Statements for Professional Services Rendered, his secretary drew up a check payable to the firm of Decoulos & Decoulos for his signature and then, as was her custom, deposited it in the firm’s operating account.
210
Decoulos testified at length as to his perceived role as receiver. He stated:
My duty was to make sure that neither party absconded with any funds, and my duty was that in the event that there was [sic] any funds generated, that I was to set them aside and hold them and report that to the Court .... Insofar as the litigation was concerned, I had a duty to make sure that it was being handled properly and that nobody would settle the case and then not report it to the Court.
211
Noting that he “got appointed because there were two factions fighting over the assets of the corporation, and ... [his] .. .role was to make sure that neither party took any assets and walked away with them,”
212
he summarized his position as “the watchdog for the Court.”
213
Later
*313
in his testimony, he stated: “I was advocating the Court’s cause to get this thing, matter resolved so that the creditors would, and if any money was left over, the shareholders would get it.”
214
With respect to the Complaint filed by ABP, Decoulos testified that he analyzed the complaint and the defenses — that he performed a legal analysis and made legal judgments about them and was responsible for reporting “each and every facet of the case” to the court.
215
He further testified that he protected ABP’s interest in the lawsuit it filed against Conti and the other defendants by monitoring the proceedings.
216
Although at his deposition, Decou-los stated that ABP was unrepresented in the Essex Action, at trial he stated that he was wrong and that Bingham represented the corporation. He testified that it was Bingham’s responsibility to prosecute the lawsuit, “with my looking over their shoulders.”
217
Decoulos admitted that the claims in the Essex Action were assets of the receivership. He testified that he, along with ABP and the court, “were pursuing ... to a conclusion the validity of their [sic] claims.”
218
He added that he was investigating the claims “[t]o make sure that if any moniesif there was any success to the claim, to make sure that that would enter the Receiver’s account.”
219
Decoulos testified at an August 30, 2001 deposition about ABP’s claims against Everett Savings Bank. He admitted stating that he “was trying to get all the facts and apply the law to it [sic],” after which he “would have made up... [his] ... mind as to whether or not ... [he] ... would go ahead and file, ask the Court to represent American Bridge so ... [he] ... could sue them.”
220
With respect to the claims against Everett Savings Bank'and the other defendants, Decoulos admitted that the court instructed him to get the bottom of the fraud in the case; that he told the Superior Court he was going to take the depositions of the defendants but did not do so because he “made a determination that it would be just a waste of time.”
221
He indicated that he took one deposition of the keeper of the records of PSI, the company that generated the Puffer Reports, adding that there was no need for additional discovery because NEBP cooperated with him and gave him all the documents he needed.
222
He testified that his Report #3 set forth the claims for the court to make a determination, although at his deposition he stated his belief that ABP’s claims against NEBP were “shallow.”
223
He maintained that he did not draw conclusions without specific documentation and that he did not need to engage counsel, not because he was a lawyer, but because he was “finding facts more than
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doing legal work,”
224
although he admitted making legal judgments.
Although Decoulos maintained he was protecting the assets of ABP, he did not take actions to secure any potential judgment ABP might obtain against the various defendants in the Essex Action. Specifically, Decoulos admitted that he did not inquire as to Conti’s assets because “he had no reason to determine whether he had assets or not.”
225
He also did not inquire about the financial status of NEBP.
226
Bingham, however, sought and obtained trustee process attachments in January of 1995.
Decoulos indicated that the judgment obtained against ABP by RCPC did not make any difference to him “because I wasn’t in possession of the place and I certainly didn’t want to get involved with a lawsuit where there was a judgment, a possible judgment of a quarter of million dollars against American Bridge ... it was just a waste of time in my mind against RCPC Realty Trust.”
227
Decoulos opined that it was a waste of the creditors’ time and money to pursue any conspiracy theories involving RCPC.
228
Additionally, De-coulos sought and obtained dismissal of ABP’s counts against Talbot and INTS, Inc. without first taking the depositions of Talbot or Robson, INTS Inc.’s principal, or conducting any other discovery because there was no documentary evidence that Talbot conspired with the Conti faction.
229
Decoulos also admitted that he suggested that the claims against Everett Savings Bank be dismissed because Conti ostensibly put $41,000 more money into ABP after December 1992 than he withdrew through forged endorsements of ABP checks or other means. He stated that Conti would have had a defense of unjust enrichment. He also cited the intentions of the parties, which were to protect the checking account from an IRS seizure,
230
although he made no attempt to determine whether the IRS had a lien,
231
or to investigate the relationship between Conti and Everett Savings Bank’s employee, John Spagnese. Decoulos testified:
It was really at the end of, by the time I filed my Report # 3 it was evident that it didn’t matter what he [Conti] was doing with that monies that he improperly negotiated those checks. The fact of the matter is that everybody agreed after all of the time — because that was a culmination of all my work, to get to the very bottom of what happened over at the at the Everett Savings Bank, and it was laid out there by documents.
232
With respect to the claims against NEBP for conversion of materials, Decou-los testified at a deposition on May 21, 1997 that he did not find the steel and aluminum described by Mahoney, stating that he had no idea where it went.
233
He concluded that NEBP converted the materials based on the Puffer Reports, although he never took a single step to
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recover the value of the inventory used.
234
He stated: “I never filed a claim against them [NEBP]. American Bridge had their own lawyer... It wasn’t my job to bring it to fruition. It was up to their lawyer. It was my job to recover as many assets as I possibly could and then sift out the various claims that had validity and the claims that I thought that didn’t have any validity, and I made that report to the Court in # 3.”
235
Because NEBP was incorporated the day after he was appointed Receiver, Decoulos concluded “there was nothing for them [sic] to take over.”
236
With respect to ABP’s claim that NEBP converted its receivables, Decoulos testified that he investigated nine contracts, which in his view were declared void as a result of the insolvency. He admitted that he never authorized NEBP to expend money to finish ABP’s contract, explaining as follows:
[Everything stopped because of the insolvency covenance [sic] agreements and then we got New England Bridge, who [sic] knew about those [contracts], that’s obvious because Robson knew everything that was going on. Without Robson the place would have been a failure, the contracts — Robson was the brains behind the whole corporation, just that he had a substance abuse problem, and New England Bridge went ahead and finished those contracts.... They took it upon themselves to do it.... [T]hey did it for the good will of the new business.
237
Decoulos testified that it was his job to marshal the assets of ABP, but, except for a retainage held by Sciaba, he took no steps to collect retainages, relying on Ma-honey and Robson to collect the retainag-es.
238
Moreover, he required Kilroy to turnover various hand tools to Conti, without taking an inventory of the tools. He testified: “I gave them to Mr. Conti so he could finish the Tobin Bridge job.”
239
He added that he did not know what happened to the tools. He thought they were part of the auction, adding “it was always a question as to who owned the tools.”
240
Decoulos also testified that the equipment ostensibly belonging to ABP was identified in several places: on the unaudited financial statements, on UCC-ls, and attached to the operating manual needed by both ABP and NEBP for AISC certification. At a deposition held on April 30, 1997, he stated that it would have been possible to discover the allegedly missing equipment by comparing the equipment lists from 1992 with the list of equipment attached to Barton K. Hyte’s second appraisal. At trial, he testified that he did not undertake this exercise, while at a deposition taken on May 21,1997 he stated that he did, concluding that “somebody stole things or misappropriated.”
241
He also admitted that NEBP, in submitting its quality control manual to the Massachusetts Highway Department, utilized the identical list used by ABP, which was also the same equipment list ABP submitted to its lenders. Nevertheless, Decoulos insist
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ed that “we all agreed — Bingham and Kilroy and Mahoney all agreed that the equipment that is [sic] on the list being sold, that’s all the equipment that American Bridge owned, and it didn’t own anything else. The Contis are still mad at me because X — -we resolved it. They claimed that it was theirs.”
242
Decoulos admitted that he did not investigate the allegations that John Conti improperly elected himself to a position with Agar Industries. He repeatedly stated that it was “up to the Court” to determine issues such as whether NEBP owed ABP money for fabricated materials and completed shop drawings it used to complete the contracts.
243
Decoulos never recovered job files, but he relied upon insolvency provisions allegedly in the contracts to justify the completion of the contracts by NEBP, even though he never gave NEBP permission to finish any contracts or permission to charge any cost of completing the contracts back against the value of what American Bridge had produced.
244
He stated that “they took it upon themselves [sic] to call up all of the companies that they had con — that American Bridge had contracts with and they completed the contracts ...”
245
E.
The Testimony of the Trustee’s Expert Witnesses
1. Steven Lynch
Steven Lynch (“Lynch”) testified in his capacity as a Certified Valuation Analyst for the purpose of determining the value of ABP, specifically the value of its outstanding shares of stock, as of September 30, 1993, the month Decoulos was appointed receiver. He concluded, based upon his review of available financial information, that the shares of ABP had a value of $850,000.
246
His assumptions were that the company would have continued without major changes in ownership and that the company grew by 5% from 1992 through the valuation date. Lynch articulated risks associated with a “fairly capital-intensive industry,” noting that ABP was closely held.
247
He discounted the value of the shares by 25% to reflect their lack of marketability.
248
Lynch testified that there was no reliable financial information made available to him after April 30, 1992 and that the balance sheet as of April 30, 1992, including the trade and bank debt, was “the foundation for the process.”
249
He admitted that he relied upon the valuations of the equipment appearing in the financial statements made available to him, stating that his approach was “to look at the earning capacity of this operation of which those pieces of equipment would be used to generate the products that they [sic] sell and install.”
250
2. John Ottenberg, Esq.
Attorney John Ottenberg (“Ottenberg”) testified as an expert based upon his experience both as a receiver and as counsel to receivers in approximately 100 cases. Asked to review various materials related to the prosecution of the Essex Action, he explained that he was requested to opine
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on whether Decoulos “had performed his duties as Receiver in accordance with standards of care applicable to the tasks of a Receiver.”
251
He concluded that Decoulos failed to meet the appropriate standard of care in performing his duties as receiver.
252
He stated:
... Mr. Decoulos failed to either understand or act upon what I viewed as the significant, pursuit of the significant asset in this situation, and that was that there seemed to be significant evidence which would lead a Receiver to believe ... the Robert Conti group ... had essentially misused the assets for their own benefit of American Bridge, usurped opportunities of American Bridge, had essentially dominated and controlled American Bridge in such a fashion that they had essentially stripped all of its worth and assets out of that company, and that there was in my mind a [sic] appropriate basis for bringing a claim, and in fact the claim had been filed.... There was [sic] no depositions taken, and from what I could see Mr. Decoulos did nothing to actively litigate or pursue those claims.
253
Ottenberg also stated that Decoulos failed to recognize the value of other categories of assets, including the value of a cause of action for the forged and converted checks payable to ABP both before and after De-coulos’s appointment and the value of ABP’s inventory. Ottenberg testified that he believed Decoulos failed to make “adequate efforts” to account for the equipment. He also testified that Decoulos made no significant effort to recover the value of the fabrication and other work performed by ABP, which NEBP utilized in completing various contracts. He expressed the view that ABP may have had some going concern value, noting its phone number, which NEBP continued to utilize, as well as its reputation. He stated: “It seems that that going concern value would have been reflected in a claim against New England Bridge and Mr. Conti for essentially usurping that value, taking it over, without any compensation.”
254
Noting that Decoulos did make efforts to collect information, Ottenberg observed that De-coulos failed to utilize that information to assert claims that ABP had and that he failed to even attempt to obtain any prejudgment attachments against the defendants.
Ottenberg testified as follows as to the standard of care for receivers: “the first as they say golden rule is, you do whatever the Court orders you to do, and so that with respect to pursuing the claims against the defendants in the Essex action, it seems that Mr. Decoulos didn’t do what the Court had directed him to do.”
255
He added
With respect to the general standard of care, this was a situation that required I think competent, thorough, aggressive litigation against the Conti faction which would have involved in my mind discovery in the form of depositions, document requests, subpoenas to third parties that had information, developing the appropriate legal theories ... and then conducting a trial to prevail on the claim to recovery of assets.
256
Ottenberg also opined that it was crucial for Decoulos to have obtained an inventory of the tools turned over to Conti, that it
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was necessary to immediately assess the value of ABP’s contracts and seek to recover their value as well as the value of materials, accounts receivable, and retain-ages. He expressed the view that the Receiver had a
quantum meruit
claim against NEBP for the fair value of the work ABP contributed to contracts NEBP completed.
257
Ottenberg admitted that Bingham’s role in the receivership proceedings was unusual. He stated that Bingham “should not have been representing an entity that no longer possessed those claims,” adding that “he had authority on behalf of the corporation to have input into the way in which the receivership estate was being administered by the Court,”
258
but “he lacked standing to make representations, take legal positions, undertake legal actions on behalf of the entity that at that point owned the claims.”
259
Although Ottenberg conceded that Conti may have put more money into ABP’s accounts at Everett Savings Bank than he improperly obtained from ABP, he opined that such a view “miss[ed] the point.”
260
Ottenberg explained: “Mr. Conti essentially used American Bridge as his alter-ego, that he was, he then at the end of the day essentially usurped the whole business and set up another entity and continued the entity under the new business and left the creditors high and dry.”
261
Although Ot-tenberg opined as to what he believed Decoulos should have done as Receiver, he conceded that he did not undertake an analysis of the range of recovery that the Receiver should have obtained if he had diligently pursued the claims.
262
Ottenberg testified that receivers are rarely removed. He stated, however, that allowance of compensation is not necessarily a “stamp of approval.” He indicated approval of a receiver’s conduct occurs when a receiver is discharged.
263
He also indicated that receivers have discretion as to what claims to pursue and what claims to abandon.
3. Peter B. McGlynn, Esq.
Attorney Peter B. McGlynn (“McGlynn”), an experienced trial attorney having tried over 150 cases, reviewed the proceedings in the Essex Action, as well as proceedings in this and other courts, for the purpose of rendering “an opinion with a reasonable degree of legal certainty as to whether or not Nicholas Decoulos as a licensed attorney in Massachusetts exercised the requisite level of skill and care in prosecuting the Essex action.”
264
He opined that Decoulos “failed to exercise the requisite degree of skill and care ... in prosecuting what has been identified as the Essex action.”
265
He explained:
This particular action, American Bridge Products vs. Robert Conti, et al. was commenced on August 21, 1993. This was filed, this action was commenced by way of a verified complaint. It had serious allegations in there of fraud, violations of Chapter 93A, conversion, conspiracy, breach of fiduciary duty, there had been requested by the plaintiffs at that time and they had obtained various
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temporary restraining orders and preliminary injunctive relief....
jH ‡ ^ # &
*
On or about May 11, 1995, some 18 to 20 months after Decoulos was appointed Receiver, he filed what was known as Application # 14 in the Essex action, and in that application he sought authority to depose all the defendants.
¡¡i
íji }Js
The Court’s authorization to take depositions and to attach assets was at the request of Mr. Decoulos, and as it appears in the pleadings, the order that was signed by the judge was specifically crafted by Nicholas Decoulos, and it makes it very clear that he was ordered to conduct these depositions and to take the action to attach the assets of the defendants.
* * * * * *
No depositions of any of the named defendants were taken by Decoulos, and Decoulos was not fully prepared to try the Essex action at the time that this case ... was commenced on or about August of 1996.
266
McGlynn also observed that Decoulos failed to take depositions of, or even obtain sworn statements from, Talbot, INTS, Inc., and RCPC before dismissing the claims against them with prejudice.
McGlynn noted that Decoulos was aware of the seriousness of the allegations made against the defendants and reported that to the court. Referring to various ethical rules, including Canon 7 and Massachusetts Disciplinary Rules 7~101(a)(l) and 6-101(a)(3), McGlynn testified Decoulos should have conducted his due diligence and investigated the allegations immediately upon his appointment. Had he done so, he would have be able to obtain security for a potential judgment prior to US-Trust, which obtained attachments against Conti’s assets in November of 1993. Moreover, McGlynn indicated that commercial litigation requires “ethically aggressive action” to secure a judgment,
267
and a malpractice award can be measured by the damages resulting from a failure to secure a judgment.
McGlynn also highlighted the need for discovery, noting its salutary purposes. He testified as follows:
First of all, it should be done as in my opinion, based upon my assessment of what the requisite level of skill and care of attorneys in Massachusetts woul

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1842610. Public record. Not legal advice.