William J. Hurley (2007)

appointed to represent Mr. Dupre as a proposed ward in a guardianship proceeding. 3. On March 7, 2002, by order of the Rockingham County Probate Court, Mr. Hurley was 2. On or about January 21,2002, Russell Dupre was the victim of a motor vehicle accident. Hampshire 03802-4088. operated his law office as Hurley Law Office, P.O. Box 4088, Portsmouth, New admitted to practice in 1972. At all times material to this proceeding, Mr. Hurley 1. Mr. Hurley is an attorney licensed to practice law in New Hampshire. Mr. Hurley was as follows: The Committee found, by clear and convincing evidence, the facts as agreed to in the Stipulation, I. FINDINGS OF FACT

Having considered the matter, the Committee reached the decision detailed below. Toni M. Gray, Alan J. Cronheim, and Richard H. Darling were not present and did not vote. Gretchen Rule Hamel, Reporter, James R. Martin, and David N. Page. Committee members Benette Pizzimenti, Ellen 1. Arnold, David N. Cole, Thomas P. Connair, Gerald A. Daley, Process. Margaret Nelson, Committee Chair, presided. Other Committee members present were April 17, 2007, after granting the Assented-To Motion to Permit Waiver of Hearings Committee Professional Conduct Committee ("Committee") considered the matter at its meeting on Disciplinary Counsel executed a stipulation as to facts, rules violated, and payment of costs. The This matter was initiated by the Attorney Discipline Office. Prior to a hearing, Mr. Hurley and

Hurley, William J. advs. Attorney Discipline Office # 04-057

Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole David N. Page' Ellen L. Arnold James R. Martin Toni M. Gray,' Vice Chair 603-224-5828. Fax 228-9511 Gretchen Rule Hamel Benette Pizzimenti, Vice Chair Concord, New Hampshire 0330 I Richard H. Darling' Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Gerald A. Daley'

p. 2 and that there remain unpaid medical and related bills in the My understanding is that you have been paid your contingency fee

cooperation with regard to the resolution of this matter. courtesy, writing to you in order to seek your long-awaited Prior to employing this avenue I am, as a matter of professional

with the Probate Court. settlement which remains in your possession by filing a petition remainder of the funds from Mr. Dupre's personal injury Mr. Dupre's guardian has instructed me to pursue retrieval of the

13. On December 16,2003, Mr. McGuffm wrote the following letter to Mr. Hurley: Guardian retained Scott D. McGuffin, Esq., to pursue Mr. Hurley for the funds. 12. Having heard nothing from Mr. Hurley in response to the Guardian's inquiries, the status of the remaining funds. 11. On September 11,2003, the Guardian telefaxed a written inquiry to Mr. Hurley as to the outstanding medical bills, which totaled $12,338.45. 10. On July 23,2003, the Guardian sent to Mr. Hurley via telefax the records of Mr. Dupre's remaining funds. 9. Beginning in July 2003, the Guardian began inquiring of Mr. Hurley as to the status of the checking account, a disbursement to cover his one-third contingent fee. 8. Also on June 24,2003, Mr. Hurley wrote a check to himselffor $16,650.00 from the "Russell Dupre Principal, William 1. Hurley, Agent." a checking account (account #13-30-0334-7). Both accounts were listed as follows: account was a money market savings account (account #13-30-0335-5), and the other was accounts at Ocean National Bank, each with an amount equal to $25,000.00. One 7. On June 24, 2003, Mr. Hurley deposited the settlement proceeds into two separate defendant's insurance company paid the policy limits of $50,000.00. 6. As a result of Mr. Hurley's efforts on behalf ofMr. Dupre, on June 17,2003, the interests with respect to the accident. 5. On or about the same date, the Court requested that Mr. Hurley represent Mr. Dupre's Guardian (hereinafter the"Guardian") over the person and estate of Mr. Dupre. 4. On March 20, 2002, the Probate Court appointed Tri-County CAP, Inc. to serve as accounting thereon;

p. 3 injury recovery to the Guardian and his failure to file an to his failure to remit the net proceeds from the personal Contempt of the Court's Order dated February 5, 2004 due 1. That the Court find that William Hurley, Esquire is in

prayer for relief: 19, 2004, Mr. McGuffin filed a"Motion for Contempt," seeking the following in his 17. Having not received any further communication from Mr. Hurley, on or about February

guardian w/in 10 days. by Atty Hurley within 10 days and the funds be delivered to the There being no objection the Court orders an accounting be filed

16. On February 5, 2004, the Probate Court (O'Neill, C., J.) issued the following Order:

equitable under the circumstances in this matter. 4. For such other and further relief as may be just and

Honorable Court; and, Show Cause Hearing be held in this matter for the by a date specific established by the Honorable Court that a 3. That in the event that this delivery of funds does not occur

for the benefit of the ward to the Guardian; the balance of net proceeds held by him in his trust account 2. That orders be issued requiring Attorney Hurley to deliver

Hurley to provide an accounting for the settlement funds; 1. That the Court issue further orders requiring Attorney

Orders." The prayer for relief stated: filed in Rockingham County Probate Court a"Motion for Clarification and Further 15. Having heard nothing from Mr. Hurley, on or about January 14, 2004, Mr. McGuffin 14. At that point, Mr. Hurley was holding approximately $33,350.00 ofMr. Dupre's funds.

I trust we can conclude this matter informally prior to Christmas.

guardian will see that the above referenced medical bills are paid. behalf of the guardian for the balance of the proceeds? The legal action, might I suggest you deliver a check to my office on order to resolve this matter immediately and to eliminate further his Second Motion for Contempt. p. 4 accordance with the Court's March 17,2004, Order. As a result, Mr. McGuffm withdrew

22. On April 27, 2004, Mr. Hurley reimbursed both the Guardian and Mr. McGuffin in full in deadline, Mr. McGuffin filed a"Second Motion for Contempt." 21. Because Mr. Hurley did not reimburse the Guardian or Mr. McGuffin within the 30-day other related expenses incurred by the Guardian ($82.75). Mr. McGuffin's legal fees for pursuing the Guardian's funds ($1,572.50) and certain requiring Mr. Hurley to reimburse Mr. McGuffin"within 30 days" in an amount equal to 20. As a result of that hearing, the Probate Court issued an Order dated March 17,2004, case. had not opened any of the bank statements or other mail pertaining to the Guardian's that hearing, Mr. Hurley appeared and explained to the Court that, after June 24, 2003, he 19. On March 17, 2004, the Probate Court held a hearing on the Motion for Contempt. At fee ($75.00). The disbursement totaled $33,323.06. remaining in the two accounts, minus debits for bank fees ($20.46) and a probate filing 18. On or about February 21,2004, Mr. Hurley disbursed to the Guardian the funds

just. 5. For such other and further relief as may be reasonable and

enforcement of this Order; for such other expenses which may be incurred relative to Counsel at the above-referenced show-cause hearing and Further Orders, this Motion, attendance of the Guardian and Guardian the costs of the Motion for Clarification and 4. That Attorney Hurley be required to reimburse the

Code of Professional Responsibility; conduct rises to the level of a reportable violation under the 3. That the Court determine whether Attorney Hurley's

Order; determine the reason for noncompliance with the Court's funds and the above-referenced accounting and further to 2. That the Court schedule a hearing requiring delivery of the client.

p. 5 32. As of June 24, 2003, Mr. Hurley was holding funds belonging to the Guardian of his 31. Allegations set forth above are incorporated by reference.

Rule 1.IS(h): Failure to Deliver Funds Promptly

Prof. Conduct 1.4(a), 1.4(b), and 1.4(c). 30. Mr. Hurley's conduct constitutes clear and convincing evidence of a violation of N.H. R. the Guardian's reasonable requests for information. client reasonably informed regarding the status of the matter and to promptly comply with 29. Mr. Hurley's conduct in this regard constitutes a failure both to keep the Guardian of his McGuffin and fulfilled his obligation to distribute the funds to the Guardian of his client. distribute the net proceeds to the Guardian, Mr. Hurley communicated with Mr. 28. After Mr. McGuffin filed a Motion to hold Mr. Hurley in contempt for his failure to with the Guardian and to disburse the funds. motions in Rockingham County Probate Court to force Mr. Hurley both to communicate 27. When Mr. Hurley failed also to communicate with Mr. McGuffin, Mr. McGuffin filed of settlement proceeds and the proper distribution of those proceeds to the Guardian. counsel, Mr. McGuffin, to force Mr. Hurley to communicate with respect to the question 26. As a result of Mr. Hurley's failure to communicate, the Guardian had to hire separate Hurley failed to respond or otherwise communicate with the Guardian. communicate with Mr. Hurley about the status and disbursement of those funds. Mr. which the Guardian was entitled. After June 24, 2003, the Guardian made attempts to 25. Between June 24, 2003, and February 21,2004, Mr. Hurley retained control over funds to 24. Allegations set forth above are incorporated by reference.

client in this matter. 23. In ail instances described below, the Guardian acted in the interests of Mr. Dupre, the evidence, the violations of disciplinary rules as agreed to in the Stipulation, as follows: The above facts having been established, the Committee found, by clear and convincing II. DISCIPLINARY RULES VIOLATED violation of N.H. R. Prof. Conduct 3.4(c). p. 6 42. Mr. Hurley's conduct in this regard constitutes clear and convincing evidence of a 41. In so doing, Mr. Hurley knowingly violated N.H. Sup. Ct. R. 50(2)(D). February 21,2004. Mr. Hurley made no distribution from the proceeds to the Guardian of his client until 40. Mr. Hurley disbursed to himself his full legal fees from the proceeds on June 24, 2003. proceeds before disbursing legal fees to himself. 39. Pursuant to this Rule, Mr. Hurley was required to distribute Mr. Dupre's portion of the

distribution. required above, and shall not be charged with a fee until of a client shall be deposited in gross in the trust account( s) All funds received as proceeds of collections or awards on behalf

38. Supreme Court Rule 50(2)(D) states: his legal fee. bank accounts on behalf of Mr. Dupre, Mr. Hurley disbursed to himself full payment of 37. On the same date that Mr. Hurley deposited the proceeds of the settlement into the two

Rule 3.4(c): Disobey Supreme Court Rule 50(2)(D)

violation of N.H. R. Prof. Conduct 1.J5(b). 36. Mr. Hurley's conduct in this regard constitutes clear and convincing evidence of a Guardian of his client funds that the Guardian's client is entitled to receive. 35. Mr. Hurley's conduct in this respect constitutes a failure to promptly deliver to the separate counsel to force Mr. Hurley to comply with his obligation to distribute the funds. 34. Because of Mr. Hurley's failure to promptly deliver the funds, the Guardian had to hire Guardian. Mr. Hurley to pay the necessary medical bills and then disburse the remainder to the without any justification and despite the Guardian's reasonable and timely requests for 33. Mr. Hurley retained the Guardian's funds from June 24,2003, through February 21,2004, failure to give proper attention to his client and to the Court violates the rules governing p. 7 he did not deliver the balance to his client even after being ordered by the Court to do so. His Although Mr. Hurley paid himselffrom the proceeds the same day he opened the bank account, into an account in his client's name which was, as a practical matter, a quasi-trust account. In short, Mr. Hurley settled a matter for his client and deposited the proceeds from that settlement As to the fIrst factor, Mr. Hurley violated duties to his client as well as to his profession. considers the effect of any aggravating or mitigating factors on the ultimate sanction."). whether they affect the baseline sanction. See id. ("After determining the sanction, [the Court] fourth and fInal step in the analysis: the existence of any aggravating or mitigating factors and appropriate sanction"). Once the baseline sanction is determined, the Court then looks to the applying these factors, the fIrst step is to categorize the respondent's misconduct and identify the determining a baseline sanction. See Wolterbeek's Case, 152 N.H. 710, 714 (2005) ("In The fIrst three factors create the framework for characterizing the misconduct and Standards § 3.0; Coffey's Case, 152 N.H. at 513. caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors." sanctions:"(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury 152 N.H. at 513. The Standards set forth a four-part analysis for courts to consider in imposing Imposing Lawver Sanctions (1992) ("Standards"), it looks to them for guidance. Coffey's Case, Although the Court has not adopted the American Bar Association's Standards for 512-13. Attorney discipline"is not intended as a mode of inflicting punishment for an offense." Id. at in the future." E.g., Coffey's Case, 152 N.H. 503, 513 (2005) (internal quotation marks omitted). confidence in the bar, preserve the integrity of the legal profession, and prevent similar conduct The purpose of the Court's disciplinary power"is to protect the public, maintain public III. Sanction

Conduct 8.4(a). rules, there is necessarily clear and convincing evidence of a violation of N.H. R. Prof. 43. Because there exists clear and convincing evidence that Mr. Hurley violated the above

p. 8 Committee agrees that Mr. Hurley has no prior disciplinary history over the 30+ years he has Attorney Discipline Office throughout the course of this matter, and genuine remorse. The make restitution and to rectifY the consequences of his misconduct", cooperation with the case: no disciplinary history, no dishonest or selfish motive, a"timely and good faith effort to that affect the baseline sanction. Disciplinary Counsel identified five mitigating factors in this The final factor is to determine whether any aggravating or mitigating factors are present appropriate baseline sanction for Mr. Hurley'S misconduct is a Public Censure. mental state, and the injuries caused by his misconduct, the Committee determined that the Having addressed the first three factors by considering the duties Mr. Hurley violated, his generally. attorney commits misconduct of this nature, slhe causes harm to the reputation of lawyers §6.2. Additionally, Mr. Hurley'S misconduct caused injury to the legal profession, as anytime an invoke contempt powers of the Court simply to obtain Mr. Hurley's attention. See Standards 3.4(c), Mr. Hurley caused"serious interference with a legal proceeding," in that his client had to of a different nature than that caused by his violation of Rule 1.15. Specifically, in violating Rule Further, Mr. Hurley also violated Rule 3.4(c). The injury caused by this misconduct was the delay and the need to expend additional resources are, in and of themselves, injuries. proceedings in order to recover that which should have been promptly paid. In cases such as this, paying the bills and required his client's guardian to obtain legal counsel and initiate formal legal full by Mr. Hurley, his failure to promptly return his client's money caused many months' delay in bank account. However, while the client's legal bills with respect thereto eventually were paid in and there was little risk of comingling or asset attachment because the funds were in a separate as all the client's bills were ultimately paid out of the funds that Mr. Hurley eventually returned, Hurley's misconduct. Here, Mr. Hurley's conduct may have caused no actual injury to the client, The third factor requires consideration of the potential or actual injury caused by Mr. obligations both to his client and to the Court. respect to each of Mr. Hurley's violations, he acted with gross negligence by ignoring his The second factor relates to Mr. Hurley's state of mind. The evidence is clear that with communication (1.4), handling of client funds (1.15), and obeying the rules of a tribunal (3.4). p. 9 File William 1. Hurley, Esquire Landya McCafferty, Disciplinary Counsel Distribution:

June 19, 2007 Margaret . Nelson

William J. Hurley for the violations of the Rules of Professional Conduct cited herein. Based on the above, the Professional Conduct Committee issues this Public Censure to V. CONCLUSION

investigation and prosecution of this matter. Mr. Hurley shall pay the expenses incurred by the Professional Conduct Committee in the IV. COSTS

Censure. Hampshire, the Committee determined that the appropriate sanction in this matter is a Public Considering the four factors together with the purposes of attorney discipline in New of misconduct, a vulnerable client, and substantial experience in the practice of law. Disciplinary Counsel identified three aggravating factors in this case: more than one act constitute a "timely and good faith effort" to make restitution. namely failure to return client funds and interfering with a legal proceeding, could possible Finally, the Committee specifically does not agree that the very basis for the original complaint, and believes that it is every attorney's duty to cooperate with the Attorney Discipline Office. Committee has no basis for finding that Mr. Hurley has expressed remorse for his misconduct,