Justice and Charity

In the final episode of Season 1, Bob talks with Scott Sinrich about his pro bono work in Stearns v. Montiero and how, despite popular belief, lawyering remains a noble profession.

Episode Highlights

COMPLAINT

Stearns v Monteiro

News Links

Lawyers undo ‘dollar sale’ of vulnerable woman’s home, Massachusetts Lawyers Weekly

Episode Transcript

Bob Stetson: In act four, scene two of Shakespeare’s Henry XI, rebel leader Dick the Butcher says, “the first thing we do, let’s kill all the lawyers.” Many interpret this as some precursor to a modern lawyer joke, but the sentiment let’s kill all the lawyers is one that’s been repeated by autocrats and despots throughout history.

Adolph Hitler famously stated, “I shall not rest until every German sees that it is a shameful thing to be a lawyer.” For centuries and reality, as in popular perception, lawyers stood as a bulwark between freedom and tyranny. Lawyers like St. Thomas Moore refuse to compromise their morals, even if it meant death. Like John Adams, who risked his reputation and more to defend on popular defendants. Like Thurgood Marshall, who broke color barriers throughout society, no matter the cost. Lawyers understand the rule of law and hold the ability to advocate for fairness and justice; lawyering was viewed as a noble profession. But lawyers have become the targets of widespread criticism in today’s society. The causes for popular dissatisfaction with lawyers are many, and some are deeply rooted.

The failure to adhere to professional and ethical standards. Placing financial gain above personal integrity and a win at all costs mentality. In order to blunt some of these criticisms, former Chief Justice of the Massachusetts Supreme Judicial Court, Edward Hennessy, encouraged lawyers to take responsibility toward justice and charity.

In his words,” although justice requires much from us, our moral country demands more. It demands mercy or love or charity. Justice is a matter of duty and debt. Charity is a work of love, and what people do for another out of the generosity of love far exceeds the commands of justice, charity, tempers, and qualifies justice, and sometimes it may even overwhelm the dictates of justice.

Justice is the frame of our society; charity it’s flesh. In order to restore public faith and lawyers, lawyers must act. Whether in a grand manner like seeking to reverse an unjust law or on an individual basis seeking to help someone from an underserved community—Marianne Stearns of East Bridgewater, Massachusetts, is such a person who needed help. She has suffered from bipolar disorder, depression, panic attacks, seizure disorder and was the victim of abuse as a teenager. As an adult, she requires frequent medical and lacks the ability to engage in activities of daily living on her own in 2008. when Marianne’s sister moved away from their shared home, the family reached out to their cousin, Matthew Monteiro, for help in order to facilitate this much-needed assistance. 

The family sought to place her and Monteiro on the deed to the family home, a two-family home, and entrusted Monteiro to care for the home and to look after Marianne. In the ensuing years, Monteiro rented out the other apartment in the hall, keeping the income for himself and refinancing the property. A number of times to line his own pockets.

In 2015, Monteiro sought the assistance of a local lawyer to transfer the property into his name alone. A few months later, after yet another refinance, Monteiro sought to evict Marianne from the hall. With no one to protect her and faced with a very real threat of being left homeless. Two lawyers took up her cause in this case.

That despite popular belief, lawyering remains a noble profession. This is Stearns versus Monteiro.

Welcome to Legal Judg(e)ments, where we tackle litigation and trial strategy by analyzing and talking about real legal cases. I’m Bob Stetson, a Boston-based trial lawyer at Bernkopf Goodman. Today, we’re looking at a case of exploitation in which the only thing preventing a helpless woman from losing her home: the lawyers.

With me to explain how this occurred and how the justice system responded is Scott Sinrich, a partner at the Worchester firm Phillips Silver Talman Aframe & Sinrich. Thanks for joining, Scott, and welcome.

Scott Sinrich: Hello Bob. I appreciate you having me on your show.

Bob: Let’s start with the verdict. After a jury-waived trial, you successfully convinced a superior court judge to invalidate the 2015 deed and to restore Marianne’s ownership rights in her home.

The grounds were essential that Marianne lacked the capacity to conduct the transaction and that she was unduly influenced to sign the deed. This is a decision that was recently appealed by Monteiro. Now you took this case on a pro bono basis, and the time cost and commitment to conduct a trial on a pro bono basis is considerable.

The same, of course, goes for an appeal. It takes away time from your paid work obligations, your non-work life, family, or otherwise.  And can, of course, create unnecessary stress, like any trial with no corresponding upside. But you decided to help this woman anyway, Scott. So, the question is, how did you get involved in this case, and what factors did you consider before jumping in to help Marianne Stearns?

Scott: Sure. I was brought into this case by another lawyer, a fellow named Eric Levitt. And Eric is a good soul. He’s a bankruptcy lawyer by trade, but he came to know Marianne’s older sister, Cathy, who was looking for help. At that point, Marianne was being evicted from the only home she had ever lived in. She’s a woman in her mid-fifties and lived with her mother her whole life.

Has really never worked, was unable to work. And unfortunately, her nephew, Matthew, got control of the property. And even though he had promised his grandmother, Marianne’s mother, that he would watch out for Marianne for the rest of her life, he was in the process of evicting her. And he also, we say, tricked Marianne into signing documents to give Matthew complete control of the property.

And so, Eric was brought into the case because, quite frankly, Kathy had gone to maybe as many as a half dozen lawyers in the Brockton area asking for help or help for Marianne, and especially lawyers at smaller firms have lots of overhead, have commitments. It’s very hard to take on these cases. They can be 2, 3, 4 years and work without any pay.

And so, it’s sometimes hard to, even on a very sympathetic, very good case, to get assistance. But Eric was willing to jump in. And so, he eventually brought me in and together. We were able to try the case, and luckily the judge saw it our way, and at this point, Marianne is going to get her house back.

Although I just learned recently, the nephew, Matthew, filed an appeal. So, we’ve got another two years of litigation ahead of us, probably. 

 Bob: So, let’s talk about the claims for a moment. Earlier this season on the podcast, as you and I have talked about in the past, we spoke with Jordan Shapiro about the Haddad v Haddad case.

 That’s the recent appeals court decision, which emphasized that incapacity claims, like one of your claims, in this case, must focus on whether there was capacity at the time of the transaction. So, at the time of the deed, in this case, back in 2015, that’s the critical point in time. So, at that time, when the deed was signed, there were only three people in the room.

 There was Marianne, of course, there was Matthew Monteiro, and there was a lawyer, at least that’s my understanding of it. Given what I’ve read – 

Scott: And that’s correct. 

Bob: That’s correct. Okay. Now, given what I’ve read about the case, Scott, I assume that Marianne, in her condition, was not terribly helpful at trial in expressing what happened.

 And I’m just guessing that Monteiro and the lawyer probably testified something to the effect of she seemed fine. She answered all the questions correctly, and we thought she had the capacity. She said she wasn’t under any undue influence. And therefore, you should uphold the transaction. But you are able to prove that she lacked capacity.

 You are able to prove that she was under undue influence. How did you do that?

 Scott: So, the strength of our case was on the undue influence side. It’s very hard to prove unless someone has a clearly delineated medical condition, Alzheimer’s, or some kind of dementia that the person lack capacity when they signed the document.

 And while I believe Marianne did not understand what she was signing, we did not have enough medical evidence to prove on that day she was incapacitated. However, and he said it in so many versions, it was hard to deny. The nephew, Matthew, had admitted that when he took over the property, he didn’t pay any money out of his pocket.

 He did it because his grandmother asked him to step in and take care of Marriane. He, in essence, admitted that this was a property that he acquired in what’s called a constructive trust and not an actual trust. The family didn’t have the money really to seek legal advice. And in order to put the house in a trust way back when this all happened, and it’s now coming on 15 years when Matthew was brought in.

 But it, constructive trust means that in reality, Matthew was not the true owner; even though his name was put on the deed, he was holding it for Marriane so that he could manage the property and take care of her. And because Matthew had sat it in so many different ways in the deposition and to a number of individuals in the family, he had to admit that.

 And I think that was the key testimony that allowed the judge to find for Marriane.

 Bob: And so, for the listeners, could you just explain a little bit further what exactly is a constructive trust

 Scott: the judge, or it can also be a jury, can determine that in reality, in this case, way back in 2008, when Kathy, the older sister who had been taking care of Marianne for almost 20 years at that point was really exhausted.

 Marianne is emotional. She has her temperament changes radically, sometimes in a violent way. She’s usually a very sweet person. Someone who’s bipolar is very difficult to deal with. The older sister had just been exhausted doing that and found the nephew who was willing to step in. And so, what they did was they deeded the house to Matthew, the nephew, and Marianne.

 They were 50/50 owners in 2008. However, it wasn’t a true transaction. It wasn’t as if Matthew wrote a check to buy half this house that is now worth probably over $600,000. He was, in essence, given the house because he promised to take care of Marianne. What a constructive trust is, is a way of saying, even though the deed doesn’t say the property is in trust. In reality, Matthew is not the actual owner. Matthew is just the caretaker of the property. He’s the trustee. So, what’s a way to create legal fiction in order to do justice. This is really a property that the grandmother, Matthew’s grandmother, left for Marianne’s care. Wasn’t a real estate investment by the nephew

 Bob: In the complaint. I read that there was an episode, almost, it sounded like a medical episode a day or two before the 2015 deed was signed in which Marianne, I believe, was unconscious for a period of time, or it was a seizure. My memory is not perfect on that, but it seemed like there was a pretty significant medical issue that occurred in close proximity to the 2015 transaction. What role, if any, did these medical issues play in the litigation?

 Scott: It’s interesting how this played out. So, Matthew and his aunt Maryanne were 50/50 owners for about seven years. And 2015, Matthew found a lawyer to prepare a deed for a dollar so that Marianne would, if she signed it, give up her interest in the house for a dollar to Matthew, and Matthew, at that point, became a hundred percent owner. The lawyer actually had Marianne come in and, in 10 minutes, presented the deed and had to have her sign it, but he didn’t record it for about two weeks. So, in between the signing of the deed and the recording of the registry, Marianne did have another episode. She had not been taking care of herself.

 She had not been taking her medication. Her care was inconsistent once the older sister got out of the picture for a while, and she was hospitalized. So, we had the neurologist come in, he treated her, and he described the treatment and described Marianne’s care, but he could not say that she was definitely incompetent on the day she signed the deed, and at times she was able to answer questions to him.

 And so, the judge. And this was a bench trial. So, the judge made the decision of what the findings of fact would be, could not say she was incompetent when she signed the deed, because it just, the evidence is a very, it’s a very high bar to prove the person didn’t understand what they were signing at all, even though that’s what everyone believes.

 The sister clearly believed that. And later on, Marianne was asked, and she could not explain what she signed, even though I think a lot of people would say she was incompetent, but the court did not say that. Luckily, though, the court found undue influence that this nephew did not have a good basis, a good faith basis, to have his aunt transfer the property to him.

 And so, the judge reversed the deed. Justice prevailed, but not because the deed was signed while she was incompetent.

 Bob: And I’m sure that when you think about the elements of an undue influence claim, you have to prove that the, that there was some susceptibility to that undue influence that the person was weak or experiencing some sort of medical issues.

So, I’m sure that the presentation that you made on the medical side of things made an impact on the judge’s decision when it came to the undue influence claim.

 Scott: Absolutely. And luckily, the neurologist that treated Marianne and the hospital soon after she signed the deed in 2015 was the same neurologist that had been treating her for 35 years.

So, he knew her history inside and out. He was able to describe all of the symptoms, all of her episodes, the problems, why he treated her, how she, over time, her condition worsened. And so that really made an impact on the judge. 

 Bob: Now, you mentioned that when that 2015 deed was signed, it was basically the result of a 10-minute meeting with a local lawyer. Now I know that you have also filed a legal malpractice claim on Marianne’s behalf against this lawyer. So despite, I guess, the thesis that I presented in my intro today about lawyers, a noble profession, and all that, this case sort of shows both sides of that coin. In terms of the legal malpractice claim, presumably, the failure here was that the lawyer did not take sufficient steps to figure out whether she was experiencing any medical issues or undue influence, et cetera, and so forth. But other than asking some questions, and again, I’m assuming that she wasn’t acting in a strange manner during that meeting.

 So, assuming that this lawyer did not know her or did not know about her background, what was the lawyer supposed to do? In other words, what did he do wrong?

 Scott: Sure. So, I’ve actually been handling legal malpractice cases for almost 30 years. Lawyers have ethical obligations in a number of areas. The first thing is a lawyer can’t represent two sides to a transaction.

 So, even though there were no money exchanging hands between Marianne and Matthew, this lawyer, in fact, was representing both the buyer and the seller. So. Marianne was, quote-unquote, selling her interest for a dollar to her nephew, Matthew, and she believed that the lawyer was representing her. In fact, she’s she and Matthew both said the lawyer was representing the two of them.

 So, the first thing he did wrong was to get involved with the transaction when he should have told one of them, I can’t represent you either as the seller or you as the buyer. One of you needs to get your own lawyer, just so that there’s someone looking out for your interest alone. And this was an older lawyer.

 And to be fair to him, he didn’t do this to be unethical. I don’t believe he intentionally tried to harm either side. He was asked by Matthew; my aunt is deeding her interests. Can you prepare this deed? And this was a lawyer that, in essence, did a courtesy for Matthew and prepared the deed. He thought everything, or so he says, was on the up and up.

 And so, he didn’t suspect that there were some shenanigans going on with Matthew, but he clearly should have asked Marianne, do you understand that you’re deeding a house that might be worth $500 to $600,000? You’re half for a dollar. And if she did not understand it, he should have referred her to a lawyer to make sure her interest was protected.

 Bob: In the open, I talked about the role of lawyers throughout history: how today’s lawyers have sustained criticism on many grounds – the hired gun, you know, the Holden to the almighty dollar, whatever. I’m not so sure things wherever different in that respect, but certainly, that’s where the perception is.

 Part of that perception, I think, is that, especially in this country, lawyers played such a prominent role in the founding era, you know, you’ve got your John Adams, Thomas Jefferson, James Madison, many others, of course. And so, I think there is a perception that lawyers, at least in our history, had almost a public service aspect to their profession.

 Now, I think it, at some point, that concept of public service, if it actually existed, it seems to have shifted. And I don’t know when, and I don’t know why. I could speculate that perhaps at some point with the onset of legal ethics, where the  lawyers are responsible through actual, you know, rules of professional responsibility to really serve the client system interests, you know, really, I don’t want to say at any cost, but certainly, there’s no moral accountability for you taking a position that your client wants you to take. And so, I don’t know that those, or that form of legal ethics at least existed during the founding era, just as an example. But I do think, and I do believe, that unwavering fidelity to the client has been pointed to as the source for some very famous examples of supposedly ethical lapses by lawyers. And I’m thinking of Watergate, I’m thinking of Enron, I’m thinking of, you know, the torture memos, et cetera, but you see it in daily practice too. Lawyers taking unreasonable positions to drive up costs. That’s the point. We’re going to drive up costs, and we’re going to leverage those costs to try to extract a settlement or to force this party into submission.

 Discovery abuse. That’s one of the big ones that we see in the civil litigation side effects, taking unreasonable positions on discovery or obstructing discovery simply to dry as drive up. These costs increase the financial pressure on the opponent. So my question, I think all of this goes into that public perception issue.

 So, my question, Scott, is, are these problems structural? Is there a flaw in the system of ethics that we have education licensing, or is it as simple as the remarks that I mentioned from former justice, Chief Justice Hennessy, in which it’s as simple as us lawyers promoting  justice and charity and lauding lawyers doing good work like we’re highlighting today like you and Eric did on this case? What’s the solution to the public perception problem?

 Scott: Sure. So, in reality, I think Bob, most lawyers are ethical. Most lawyers try to do pro bono work, try to good for the community, and have respect for the rule of law.

 So, the good news is I think you’ll find in most cases, lawyers are ethical. They advocate for their clients, but they don’t cross the line. But obviously, in this day and age, especially when there’s a lot of money at stake, people take shortcuts, and that’s been part of my history as a lawyer that focuses on legal malpractice. I’ve been involved with lawyers and sued lawyers that have acted unethically. I’m in the process now of a long case dealing with fraud on the court, in which a lawyer misrepresented evidence to a judge and took advantage of the fact that the other side was not represented at a trial and added duplicate and triplicate estimates of the same damage. And in fact, had put his client on the stand and misrepresented the response by the other side, claiming that they never responded when they did, and without getting into the minutia of the case, the trial judge, another superior court judge, took that allegation very seriously because she felt it was her duty to uphold and to protect the system and ultimately sanction this lawyer, hundreds of thousands of dollars  for violating that his duty of candor to the court. So, the judges take it seriously. Most lawyers take it seriously. I think the problem is the public doesn’t recognize the fact that many lawyers and I would say a high percentage, well over 90% of lawyers, are ethical, and not only are they ethical in cases where they’re litigating to get paid and are doing it for money, but they also go above and beyond and volunteer in cases because they feel that justice needs to be served even if they don’t get paid. So, we just need to do a better job of publicizing the good in the bar and the positive aspects of being a lawyer. 

 Bob: And that’s one of the reasons why I was so delighted that you agreed to come on the show today, Scott.

 Scott: Well, thanks, Bob. And  you know, I do want to give a lot of credit to my colleague, Eric Levitt, because Eric went even above and beyond what most lawyers do because I was mentioning his he’s a bankruptcy lawyer, but he got involved in this civil litigation case without really having a background in civil litigation, but he felt like he could not turn this family down. The sister needed help, and Marianne certainly needed help. So, he encouraged me, and I’m so glad to have gotten involved because when Judge Glenney, the superior court judge who made the ruling found for Marianne, it was just a wonderful, warm feeling of having helped this family get justice. So, there’s a lot of positive about this case, and I was so glad to be here.

 Bob: Well, congratulations again on the victory. Best of luck on the appeal. And thank you so much for joining me today.

 Scott: Thanks so much for having me, Bob.

 Best of luck to you.

 Bob: That’s our show. Check out the show notes for more information on today’s case. Also, if you were involved in an interesting civil case or know about one that you think would be a good topic for the show, reach out to me at rstetson@bg-llp.com. Don’t forget to subscribe to this podcast.

 And of course, if you like what you heard, please leave us a positive review. Thanks for listening.