In the Matter of Williams

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SJC-13268

IN THE MATTER OF ABBY R. WILLIAMS.

February 23, 2023.

Attorney at Law, Disbarment, Misuse of client funds.

The respondent attorney, Abby R. Williams, appeals from the

judgment of a single justice of this court disbarring her from

the practice of law.1 The matter came before the single justice

on the information and record of proceedings filed by the Board

of Bar Overseers (board). The board determined, inter alia,

that the respondent intentionally misused client trust funds,

resulting in ongoing deprivation to clients. The board

recommended, and the single justice ordered, that the respondent

be disbarred. We affirm.

1. Prior proceedings. On September 9, 2019, bar counsel

filed a seven-count petition for discipline against the

respondent. Counts one, two, and four alleged that as to three

sets of clients, the respondent intentionally misrepresented

costs and intentionally misused client trust funds with ongoing

deprivation resulting.2 Through counsel, the respondent filed an

1 We have reviewed the respondent's preliminary memorandum

and appendix, as well as the record that was before the single

justice. Pursuant to S.J.C. Rule 2:23, 471 Mass. 1303 (2015),

we dispense with further briefing and oral argument.

2 Specifically, as to counts one and two, the petition

alleged that the respondent's conduct violated Mass. R. Prof. C.

1.15 (b) (segregation of trust property), 1.15 (c) (prompt

notice and delivery of trust property to client or third

person), 1.15 (d) (1) (accounting), 1.15 (d) (2) (accounting),

and 1.15 (f) (1) (C) (individual client records), as appearing

2

answer denying these allegations; these three counts are the

only counts at issue on appeal.3

The matter was referred to a hearing committee of the

board. After an evidentiary hearing at which the respondent was

represented by counsel, the committee filed a report of its

findings of fact and conclusions of law and recommended that the

respondent be disbarred. The board thereafter considered the

respondent's appeal and issued a report generally adopting the

hearing committee's report and recommendation;4 an information

in 471 Mass. 1380 (2015) and 440 Mass. 1338 (2004); Mass. R.

Prof. C. 5.1 (a) (managerial authority over lawyers) and 5.1 (b)

(supervisory authority over lawyers), as appearing in 471 Mass.

1445 (2015) and 426 Mass. 1405 (1998); Mass. R. Prof. C. 5.3 (a)

(managerial authority over nonlawyers) and 5.3 (b) (supervisory

authority over nonlawyers), as appearing in 471 Mass. 1447

(2015) and 426 Mass. 1408 (1998); and Mass. R. Prof. C. 8.4 (c)

(dishonesty, fraud, deceit, or misrepresentation), 8.4 (d)

(conduct prejudicial to administration of justice), and 8.4 (h)

(fitness to practice law), as appearing in 471 Mass. 1483

(2015), and as amended, 429 Mass. 1301 (1999). As to count

four, the petition alleged violations of the same rules except

that it did not allege a violation of Mass. R. Prof. C.

1.15 (d) (2); in addition, it alleged violations of Mass. R.

Prof. C. 1.1, as appearing in 471 Mass. 1311 (2015)

(competence), and Mass. R. Prof. C. 1.3, as appearing in 471

Mass. 1318 (2015) (diligence).

3 With respect to the remaining counts, the petition alleged

that the respondent failed to properly make or maintain a three-

way reconciliation of her Interest on Lawyers' Trust Account

(IOLTA), failed to make or maintain a proper check register for

her IOLTA, failed to make or maintain individual client ledgers

and a ledger of personal funds in her IOLTA for fees and

expenses, failed to cooperate with bar counsel's investigation,

and failed to comply with the order of administrative suspension

issued by the single justice. In an amended answer filed

shortly before her hearing, the respondent admitted these

violations.

4 The board did not adopt the hearing committee's conclusion

with respect to count one that providing a false settlement

breakdown to a private client was prejudicial to the

administration of justice in violation of rule 8.4 (d). That

finding is not specifically at issue here, and so we do not

separately address it.

3

was filed in the county court. A single justice of this court

reviewed the record, accepted the board's recommendation, and a

judgment of disbarment entered. The respondent appealed

pursuant to S.J.C. Rule 2:23, 471 Mass. 1303 (2015).

2. Facts found by the committee and adopted by the board.

We summarize the relevant factual findings of the hearing

committee, as adopted by the board. We agree with the single

justice that the findings are supported by substantial evidence.

See S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310

(2009).

The respondent was admitted to the Massachusetts bar in

1991, and in 1996 or 1997, she established the law firm "Abigail

Williams & Associates, P.C.," of which she was the sole owner,

officer, and managing partner. In 2015, the respondent

transitioned the firm to a limited liability company, founding

"Abigail Williams & Associates, L.L.C." Respondent retained

control of the new entity.

From July 2007 to July 2013, the respondent's firm employed

Ross Annenberg as an associate attorney. While working for the

respondent's firm, Annenberg misused client funds for his own

benefit by inflating costs, among other methods. By the end of

July 2013, the respondent had ended Annenberg's employment with

her firm. Annenberg was subsequently disbarred and pleaded

guilty to criminal charges arising from his misconduct. See

Matter of Annenberg, 31 Mass. Att'y Discipline Rep. 8, 8 (2015).

Although the respondent contends that Annenberg was

responsible for the misappropriation of client funds in the

three cases at issue in counts one, two, and four, the hearing

committee found that it was the respondent who personally and

intentionally committed the misconduct. In addition to the

case-specific facts described infra, the hearing committee found

that the respondent's firm suffered serious ongoing financial

problems and that the respondent borrowed money to pay the

firm's employees and to cover the firm's other costs. And while

Annenberg primarily handled the firm's nonmedical malpractice

personal injury cases, it was the respondent who primarily

handled the firm's medical malpractice cases. Consistent with

this practice, the respondent, not Annenberg, calculated costs

for the medical malpractice cases.

a. Count one. Count one concerned the respondent's

representation of two clients in a medical malpractice case. In

2012, the lawsuit settled. Minus a portion of the funds paid to

4

a life insurance company and placed in a structured settlement,

the settlement proceeds were deposited in the respondent's

Interest on Lawyers' Trust Account, an account for which the

respondent was the only signatory. The respondent's firm was

entitled to $33,392.78 in costs but paid itself $160,000 in

costs. The difference of $126,607.22 was never paid to the

clients. On appeal, the respondent does not dispute these

numbers.

When the respondent's firm paid itself in June 2012, it did

not provide the clients with the contemporaneous accounting

required under Mass. R. Prof. C. 1.15. Partial payment was made

to the clients by way of a check, and a copy of this check bore

the respondent's handwritten notations computing costs in the

inflated amount of $160,000. The respondent testified that she

made these notations at the time of the relevant disbursement.

In addition, the evidence included an undated worksheet on which

the respondent made a correction as to the specific amount of

the costs charged to the clients.

In about February 2013, one of the clients called the firm

and requested an itemization of the costs. In answer to this

request, the respondent signed the cover letter accompanying a

purported settlement breakdown. But as to costs, the breakdown

included only a one-line total of $160,000 and not an

itemization as the client had requested.

b. Count two. In a second case, the respondent

represented a client individually and as administrator of an

estate in a medical malpractice case arising out of the death of

the client's husband, and an administrator de bonis non

subsequently was appointed for the husband's estate. In 2012,

the lawsuit settled as to one of the defendants. The

respondent's firm was entitled to $59,736.90 in costs from the

settlement. Nevertheless, the respondent later provided the

administrator with a settlement statement asserting costs in the

amount of $195,171.17. The respondent does not dispute the

proper amount of costs, nor does she dispute that the ultimate

costs were inflated. The $135,434.27 difference between the

proper and inflated costs was never paid to the client.

As the hearing committee determined, the respondent's firm

improperly billed two specific items as costs, and the

respondent intended these overcharges. First, the client was

billed for a consulting attorney's fees, which were not costs.

Second, and more pertinent to the issues before this court, the

client was billed for $11,816.36 in costs associated with a so-

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called nonattorney "consultant." In fact, this person was an

employee of the respondent's firm who did not receive any

compensation for her work on the case apart from her ordinary

wages. Moreover, the $11,816.36 was not a fee associated with

legal or consulting work but rather represented the respondent's

repayment of a loan she personally received from the employee.5

The settlement breakdown that falsely inflated these costs

was provided to the estate administrator only after the

administrator made a personal request to the respondent, and

even then, it was delayed by more than two months. The

settlement breakdown contained only a one-line total of the

costs, and the administrator never received a detailed

breakdown. The settlement breakdown was signed by one of the

respondent's employees as "Legal Assistant to Abigail R.

Williams."

c. Count four. In a third case, the respondent

represented the personal representative of an estate in a

medical malpractice action. The case was settled as to two

defendants. After trial, judgment entered in favor of the third

defendant. The client did not receive any proceeds from the

second settlement but believed that, by agreement, the

respondent was withholding funds to cover the expenses of the

appeal. In September 2016, the respondent's firm filed a notice

of appeal. The notice was filed thirty-two days after the

judgment. A full year after filing of the notice, the client

inquired about the status of the appeal, and the respondent

replied, "we are still trying to perfect the record," and "the

guy working on it with us is almost done with his portion." But

nothing substantive was being done to advance the appeal.

In November 2017, the defendant served a motion to dismiss

the appeal, in part because the notice of appeal was untimely.

See Mass. R. A. P. 4 (a) (1), as amended, 464 Mass. 1601 (2013)

(thirty-day deadline). On January 29, 2018, defense counsel

filed the motion to dismiss and represented in an affidavit that

no opposition had been received. See Rule 9A of the Rules of

the Superior Court (2016). The court allowed the motion, and

the appeal was dismissed on February 1, 2018. In sum, the

record reflects that a notice of appeal was filed late and that

no substantive efforts were made to prosecute the appeal. The

respondent never told the client about the dismissal. The

client had to learn this fact through others.

5 By the time she was repaid, the employee had ceased

working for the respondent.

6

In September and October 2018, seven months after the

appeal was dismissed, the client asked the respondent multiple

times for documentation and for payment of settlement funds

remaining from prior settlements with other defendants in the

case. The respondent provided a settlement breakdown that

contained a total for costs related to the appeal but did not

include a detailed statement of those costs. The settlement

breakdown asserted $18,819.09 in costs related to the failed

appeal, which costs had been deducted from the client's payment.

In fact, the true costs related to the failed appeal amounted to

$8,000.76, a difference of $10,818.33. The respondent does not

dispute the proper amount of these costs.

3. Sufficiency of the evidence of misconduct. We "review

the record to determine whether the single justice's decision is

supported by sufficient evidence, free from errors of law, and

free from any abuse of discretion." Matter of Zankowski, 487

Mass. 140, 144 (2021), quoting Matter of Tobin, 417 Mass. 92, 99

(1994). "The subsidiary facts found by the board must be upheld

'if supported by substantial evidence'" in the record. Matter

of Zankowski, supra, quoting S.J.C. Rule 4:01, § 8 (6).

"'Substantial evidence' means such evidence as a reasonable mind

might accept as adequate to support a conclusion." Matter of

Slavitt, 449 Mass. 25, 30 (2007), quoting G. L. c. 30A, § 1 (6).

Moreover, "[w]e will not disturb the hearing committee's

credibility determinations," as "[t]he hearing committee . . .

is the sole judge of credibility, and arguments hinging on such

determinations generally fall outside the proper scope of our

review." Matter of Diviacchi, 475 Mass. 1013, 1018-1019 (2016),

quoting Matter of McBride, 449 Mass. 154, 161-162 (2007). As to

its conclusions regarding the alleged violations, "the hearing

committee's ultimate findings and recommendations, as adopted by

the board, are entitled to deference, although they are not

binding on this court." Matter of Laroche-St. Fleur, 490 Mass.

1020, 1023 (2022), quoting Matter of Diviacchi, supra at 1019.

The respondent does not dispute any facts found by the

board, nor does she dispute the figures determined by the board

to be the appropriate amount of costs in the cases at issue. On

the contrary, the respondent states, "There was no dispute that

the expenses were inflated. The question was who inflated them,

Respondent or Annenberg." The respondent contends that her

"inattention to these finances allowed Annenberg to steal client

funds by improperly inflating the expenses related to the three

matters at issue." In sum, the respondent does not dispute the

facts found by the hearing committee and adopted by the board

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but argues that they were insufficient to establish that she

personally and intentionally committed the contested violations.

Drawing on her argument that the evidence was insufficient

to demonstrate her own culpability, the respondent concludes

that the single justice improperly shifted the burden of proof.

She argues that the single justice improperly required that she

affirmatively demonstrate that it was Annenberg who inflated

client expenses. We disagree. The single justice concluded

that "there was substantial evidence that it was the respondent

who intentionally charged inflated expenses on the three matters

at issue, that she was aware that the expenses were inflated,

and that she was motivated in part by financial pressures on her

firm."

This conclusion is supported by ample evidence in the

record, and we agree with the single justice that the evidence

warrants the conclusion that the misconduct at issue was

committed personally and intentionally by the respondent. See

Matter of London, 427 Mass. 477, 482-483 (1998) (finding no

burden shifting, and holding "intent to deprive is a permissible

inference" from "false accountings"). In particular, the

respondent, not Annenberg, was responsible for the management

and calculation of costs for medical malpractice cases. And as

to all three disputed counts, the respondent was responsible for

providing settlement breakdowns that falsely inflated costs.

See Matter of McBride, 449 Mass. at 162 (finding misleading

letters drafted at instruction of respondent to be respondent's

attempt to hide misappropriation of payments owed to clients);

Matter of London, supra. With respect to count two, the

respondent used the inflated costs to repay a loan that she had

taken. And although the respondent argues that her "inattention

to these finances allowed Annenberg to steal client funds," the

misconduct related to the late-filed appeal in count four did

not occur until years after Annenberg had left her firm.

Moreover, the respondent's attempts to deflect blame to

Annenberg largely depended, as the single justice observed, upon

her own credibility. But the hearing committee is the sole

judge of credibility, see Matter of Diviacchi, 475 Mass. at

1018-1019, and it expressly found the respondent's credibility

to be lacking on these precise points. "The hearing committee

was under no obligation to believe the respondent's version of

the facts" in the face of all the evidence to the contrary, and

so there was no "impermissible shift of the burden of proof to

the respondent." Matter of London, 427 Mass. at 483. See

Matter of Moore, 442 Mass. 285, 291 (2004) ("The disputed

8

findings were made on ample evidence and were based in large

part on the credibility determinations of the hearing

committee"); Matter of Macero, 27 Mass. Att'y Discipline Rep.

554, 561-562 (2011) (finding no burden shifting where, as

between "natural inference" and respondent's "implausible

testimony . . . to explain away these facts, the committee"

properly "drew the natural inference"). There was no error in

the single justice's determination that the respondent engaged

in the misconduct determined by the board.

4. Appropriate sanction. We review de novo the

disciplinary sanction imposed by the single justice to determine

whether it "is markedly disparate from judgments in comparable

cases." Matter of Slavitt, 449 Mass. at 30, quoting Matter of

Finn, 433 Mass. 418, 423 (2001). See Matter of Greene, 476

Mass. 1006, 1008 (2016). "When an attorney 'intended to deprive

the client of funds, permanently or temporarily, or if the

client was deprived of funds (no matter what the attorney

intended), the standard discipline is disbarment or indefinite

suspension.'" Matter of McBride, 449 Mass. at 163, quoting

Matter of Schoepfer, 426 Mass. 183, 187 (1997). Where

deprivation is ongoing, as the hearing committee and the board

found that it is with regard to the three disputed counts, the

presumptive sanction is disbarment. See Matter of Ablitt, 486

Mass. 1011, 1017 (2021); Matter of Bryan, 411 Mass. 288, 291-292

(1991). And we give deference to the board's recommendation,

which in this case is disbarment. Matter of Hoicka, 442 Mass.

1004, 1006 (2004).

Disbarment is particularly appropriate where the

misappropriation of client funds is accompanied by presence of

"numerous aggravating factors" and "the absence of any

mitigating factors." Matter of McBride, 449 Mass. at 164.

Here, the single justice found no mitigating factors and found

multiple aggravating factors, all of which are supported by

substantial evidence in the record, including the respondent's

experience as an attorney and her lack of candor before the

hearing committee. The single justice also properly considered

the cumulative effect of the respondent's multiple violations in

different cases. See Matter of Hrones, 457 Mass. 844, 855

(2010), citing Matter of Saab, 406 Mass. 315, 326-327 (1989).

Another aggravating factor is the respondent's failure to

recognize her own obligations and her repeated attempts to blame

others, particularly Annenberg, as described above. This

court's admonition in Matter of Ablitt, 486 Mass. at 1019, is

applicable here:

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"A bar discipline proceeding is not a forum best used

broadly to cast blame or aspersions on others. It is a

proceeding with a narrow focus: to determine whether there

is a preponderance of evidence that an attorney has

violated one or more rules of professional conduct and, if

so, what sanction is warranted. The respondent's continued

focus in these proceedings on matters other than the

charged misconduct does [the respondent] a disservice

because evidence of misconduct is neither excused nor

obscured by accusations of misconduct by others."

For all the foregoing reasons, we agree with the single

justice that disbarment was the appropriate sanction and not

"markedly disparate from judgments in comparable cases." Matter

of Slavitt, 449 Mass. at 30, quoting Matter of Finn, 433 Mass.

at 423.

5. Conclusion. The evidence was sufficient to establish

that the respondent personally and intentionally misappropriated

client funds with deprivation resulting. Disbarment is

warranted.

Judgment affirmed.

The case was submitted on the record, accompanied by a

memorandum of law.

Alan E. Brown for the respondent.