Charles F. Cleary (2004)

the fall of 1990.

1. Mr. Cleary has been licensed to practice law in the State of New Hampshire since

McCafferty and Respondent, Charles F. Cleary, by clear and convincing evidence: factual findings of the Hearing Panel, as stipulated to by Disciplinary Counsel, Landya B. The Professional Conduct Committee has determined that the record supports the following

factual findings and rulings as detailed below. The Professional Conduct Committee thoroughly reviewed the record in this matter and makes

Page and Stephen B. Stepanek. Esq., Chair, Thomas P. Connair, Esq., Reporter, Toni M. Gray, Morgan A. Hollis, Esq., David N. were also present. The Professional Conduct Committee Panel consisted of Benette Pizzimenti, appeared on behalf of the Respondent Charles F. Cleary. Mr. Cleary and Robert LaMontagne appeared for the Attorney Discipline Office. John Kissinger, Esq., Respondent's Counsel, arguments in the above-referenced matter. Landya B. McCafferty, Esq., Disciplinary Counsel On June 15,2004 and September 21,2004, the Professional Conduct Committee heard oral

Alan J. Cronheim * non attorney member Thomas P. Conn air Stephen B. Stepanek* David N. Cole David N. Page* Toni M. Gray,* Vice Chair 603-224-5828. Fax 228-9511 Richard B. McNamara Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 James R. Martin Margaret H. Nelson, Chair 4 Park Street, Suite 304 Morgan A. Hollis

1 p. 2 2. After Mr. Cleary became an income partner of the Wadleigh Firm, he continued to

much of the work being for Mr. LaMontagne and some for Mr. Brooks.

11. Mr. Cleary worked almost exclusively for Mr. Gannon between 1993 and 1997,

attorneys in the Wadleigh Firm.

10. In that capacity, Mr. Gannon assigned matters involving each client to other

and Mr. Brooks at all relevant times.

9. William S. Gannon was the primary responsible attorney for both Mr. LaMontagne

New Hampshire limited partnership ("the Partnership").

Brooks served as the Director of Development for the Bowman Brook Purchase Group, a

8. The Wadleigh Firm also represented R. Scott Brooks from 1993 - 1997. Mr.

Hampshire. Mr. LaMontagne is the principal stockholder and president of LBI.

road building, site development, home construction and other construction activities in New

LaMontagne Builders, Inc. ("LBI"), from 1984 until p. 2 200 1. LBI is a corporation engaged in

7. The Wadleigh Firm represented Robert S. LaMontagne and his company

Wadleigh Firm's hierarchy.

6. As an income partner, Mr. Cleary was a subordinate of Mr. Gannon within the

estate law.

5. The focus ofMr. Cleary's practice is in commercial transactions, corporate and real

4. Mr. Cleary became an income partner of the Wadleigh Firm on January 1, 1997.

3. Mr. Cleary was an associate attorney in the Wadleigh Firm from 1990 until 1996.

1990.

p. 2 2. Mr. Cleary joined Wadleigh, Starr & Peters (the"Wadleigh Firm") in the fall of p. 3 3

20. Mr. Cleary understood that Mr. LaMontagne refused to enter into the joint venture

terms of the joint venture, and the plans for the joint venture fell through.

19. At some point in late 1996, Mr. LaMontagne and Mr. Brooks had a dispute over the

build houses.

personal guaranty to the FDIC. Mr. LaMontagne's initial purpose was to acquire land to

Mr. Brooks' initial purpose in the joint venture was primarily to raise money to satisfy his

Deposit Insurance Corporation ("FDIC"). Mr. Brooks had personally guaranteed that lien.

18. The Partnership was subject to an outstanding judgment in favor of the Federal

develop the Subdivision.

17. Mr. Brooks and Mr. LaMontagne anticipated entering into a joint venture to

Subdivision under the supervision ofMr. Gannon.

16. Mr. Cleary was asked to assist the clients in certain real estate matters involving the

the terms of that letter.

conflict letter was prepared by Mr. Cleary. Both Mr. LaMontagne and Mr. Brooks agreed to

15. In July 1994, under the direction and supervision of Mr. Gannon, a notice of

the Subdivision.

Bowman Green ("the Subdivision"). The Partnership, which Mr. Brooks controlled, owned

represented both Mr. LaMontagne and Mr. Brooks with respect to a subdivision known as

14. In 1994, Mr. Gannon opened a joint file under which the Wadleigh Firm

matters.

1 p. 3 3. Mr. Gannon retained supervisory authority over Mr. Cleary's work on these

report to Mr. Gannon on the matters involving Mr. LaMontagne and Mr. Brooks. p. 4 4

represented that BGDC had over one million dollars in assets and a total liability of

including financial statements and a description of the project. The financial statement

26. In his Loan application, Mr. Brooks submitted a package of written materials,

Loan") to develop the Subdivision.

25. Also in November 1996, Mr. Brooks applied to Centerpoint Bank for a loan ("the

of t,he infrastructure improvements in the Subdivision.

2 p. 4 4. By the end ofN ovember 1996, LBI completed the road construction and nearly all

BGDC acquired the Subdivision.

Partnership. Mr. Cleary understood that BGDC would assume the Contract in the event that

an officer of BGDC. The purpose of BGDC was to purchase the Subdivision from the

Development Corporation ("BGDC"), a New Hampshire corporation. Mr. Brooks served as

23. In November 1996, Mr. Cleary assisted Mr. Brooks in creating Bowman Green

negotiation of the Contract.

22. Mr. Cleary and the Wadleigh Firm were not involved in the preparation or

improvements in the Subdivision (the"Contract").

of the Partnership) entered into a contract for LBI to build roads and make infrastructure

21. In the fall of 1996, Mr. LaMontagne (on behalf of LBI) and Mr. Brooks (on behalf

1996.

with Mr. Brooks but continued to work with Mr. Brooks on other projects after December,

terms of the deal after he had initialed the terms. Mr. LaMontagne had multiple differences

that he could not trust Mr. Brooks because, in his opinion, Mr. Brooks would change the

because he did not completely trust Mr. Brooks. Mr. LaMontagne explained to Mr. Cleary p. 5 5

3 p. 5 5. In early 1997, Mr. Brooks called Mr. Cleary to tell him that he (Mr. Brooks) and

Mr. Cleary updated on Mr. Brooks' continued failure to pay the bill.

34. Between December 1996 and throughoutthe Spring of1997, Mr. LaMontagne kept

33. Mr. Gannon said that he did not believe it was a serious dispute.

32. Mr. Cleary reported the dispute to Mr. Gannon.

resolved.

Brooks that he could not represent them any further in the matter until the dispute was

31. As a result of the nonpayment, Mr. Cleary advised both Mr. LaMontagne and Mr.

in the Bowman Green Project pursuant to the Contract.

Brooks as a result ofMr. Brooks' nonpayment for road construction work performed by LBI

30. At some point in late 1996, a dispute arose between Mr. LaMontagne and Mr.

and Mr. Cleary considered them"phony" and unjustified.

pay his bill. Mr. Cleary was aware of Mr. Brooks' stated reasons for not paying LBI's bill,

29. Shortly thereafter, Mr. LaMontagne informed Mr. Cleary that Mr. Brooks refused to

28. Mr. Brooks refused to pay the bill, and LBI halted all work on the site.

of the Contract that had not yet been completed.

the entire Contract price for the roadwork, plus"extras," and less credits for minor portions

27. On December 10,1996, LBI sentMr. Brooks a bill for $31 p. 5 5,459, which represented

that any money was owed, or would be owed, to LBI.

the infrastructure had already been built. Mr. Brooks did not mention in this loan application

an entity controlled by Mr. Brooks and his father. The description of the project stated that

$ p. 6 687,000, in the form of a note payable to Great Oaks Family Holdings, L.P. ("Great Oaks"), 6

47. Mr. Cleary sought and obtained consent to the conditional representation from Mr.

4 p. 6 6. Mr. Brooks agreed to pay Mr. LaMontagne from the loan proceeds.

closing ifhe agreed to pay Mr. LaMontagne in full from the loan proceeds.

45. Mr. Cleary informed Mr. Brooks that he would only represent him in the loan

Brooks promised to pay Mr. LaMontagne and Mr. LaMontagne consented.

44. Mr. Cleary believed he could represent Mr. Brooks in the loan closing only ifMr.

Cleary to handle the loan closing.

43. Mr. Gannon told Mr. Cleary there was no conflict. Mr. Gannon pressured Mr.

42. Mr. Cleary cited the conflict of interest as a result of the payment dispute.

41. Mr. Gannon demanded to know why Mr. Cleary would not close the loan.

had informed him Mr. Cleary was being uncooperative.

40. Mr. Cleary received a visit from an outraged Mr. Gannon stating that Mr. Brooks

excuses to avoid paying Mr. LaMontagne.

disputing the obligation. Rather, Mr. Cleary believed Mr. Brooks was offering phony

39. At this time, Mr. Cleary did not believe Mr. Brooks had any legitimate basis for

Contract dispute.

38. Mr. Cleary told Mr. Brooks he believed a conflict of interest existed because of the

37. Mr. Cleary refused to represent Mr. Brooks at the closing of the loan.

of the Loan.

3 p. 6 6. In February 1997, Mr. Brooks requested Mr. Cleary to represent him in the closing

Subdivision.

Mr. Gannon had negotiated a construction loan ("the Loan") from Centerpoint Bank for the p. 7 7

material change."

indicate that there was any debt owed to LBI. Mr. Brooks added the notation,"I represent no

financial statements originally submitted to the Bank. These financial statements did not

51. At the closing, Mr. Brooks signed, on behalf of BGDC and Great Oaks, the

performed by LBI had been paid for by Great Oaks.

representations made out of Mr. Cleary's presence by Mr. Brooks, that all of the site work

the loan proceeds. The Centerpoint Bank loan officer believed, on the basis of false

representation of Mr. Brooks at the closing on Mr. Brooks' promise to pay LBI in full from

entered into with Mr. Brooks and Mr. LaMontagne, i.e., conditioning Mr. Cleary's

50. The Centerpoint Bank was never made aware of the agreement Mr. Cleary had

Subdivision had been paid or would be paid from the loan proceeds.

executed affidavits under oath to Centerpoint Bank that all work performed on the

Mr. Brooks again confirmed to Mr. Cleary his intention to pay Mr. LaMontagne and

Brooks, Attorney J. Jefferson Davis (Bank's counsel), and Mr. David Cassidy (loan officer).

49. The loan closed on April 30, 199 p. 7 7. Present at the closing were Mr. Cleary, Mr.

representation, I will limit my work to closing the loan with Centerpoint."

potential conflict for me to represent him and leave LaMontagne unpaid. Relying on this

from the proceeds. [Brooks] assured me he would. He stated he understands it would be a

represent him in the closing unless I had his assurance that he would pay LaMontagne in full

discussions. In relevant part, the memorandum states:"I told [Brooks] that I would not

48. On April 14, 199 p. 7 7, Mr. Cleary drafted a memorandum to the file describing these

LaMontagne. p. 8 8

experience is that affiants will pay such bills within a few days of funds being disbursed.

will"promptly" pay for any outstanding work on the subject property, Mr. Cleary's

55. Where an affiant to a"mechanic's lien/parties in possession affidavit" states that he

Partnership), and, on the other, he signed as the purchaser of the Subdivision (BGDC).

on each. On one affidavit, Mr. Brooks signed for the seller of the Subdivision (the

are identical in every respect, except that Mr. Brooks signed in a different corporate capacity

54. Mr. Cleary also notarized Mr. Brooks' signature on these affidavits. The affidavits

(Emphasis added).

and judgments resulting from such failure to pay. premises harmless for any and all actions, damages Bank and any title insurance company insuring the undersigned agrees to defend, indemnify and hold the the event the undersigned fails to do so, the undersigned will promptly [pay] for all costs. In repairs have been made, or materials ordered, the any such construction, erection, alteration or for any material to be delivered to the premises, or, if on the premises cited to be done, nor have contracted alteration or repairs of any structures or improvements days past, have caused no construction, erection, The undersigned, at present, and for a period of 120

signature that included the following language:

Mr. Cleary prepared two"Mechanic's LienIParties in Possession Affidavits" for Mr. Brooks'

53. As the agent for the title insurance company insuring the title to the Subdivision,

LBl.

Before and during the closing, Mr. Cleary believed that the Bank was aware of the debt to

closing, and Mr. Cleary was not aware that Mr. Brooks had added any notation to them.

52. Mr. Cleary did not review these financial statements either before or during the p. 9 9

64. Mr. Gannon stated he was aware Mr. Brooks had promised payment and that only

LaMontagne, Mr. Cleary asked Mr. Gannon to investigate why Mr. Brooks had not paid.

63. After it became clear that Mr. Brooks had breached his promise to pay Mr.

62. Mr. Brooks subsequently refused to pay Mr. LaMontagne as promised.

recorded.

Davis also updated the title on the Subdivision and found no additional encumbrances

from BGDC to be recorded in the Hillsborough County Registry of Deeds. At that time, Mr.

61. On the date of the closing, Mr. Davis, on behalf of the bank, caused the mortgage

an additional $4 p. 9 90,000 available on a line of credit from April 30, 1997 until June 20, 1997.

60. On the date of the closing, BGDC received $350,000 of the bank Loan. BGDC had

any steps at the closing to insure that Mr. Brooks paid LBI from the proceeds.

proceeds as he had promised. As a result, Mr. Cleary did not believe it was necessary to take

5 p. 9 9. Mr. Cleary believed Mr. Brooks would pay Mr. LaMontagne from the loan

promissory note to the Bank and granted the Bank a mortgage on the Subdivision.

58. In connection with the Loan, Mr. Brooks, on behalf of BGDC, executed a

transfer was to allow BGDC to borrow $840,000 from the Bank.

BODC, which then completed the loan transaction with the Bank. The purpose of the

57. As part of the closing, the Partnership transferred the Subdivision property to

Loan.

exceptions for the Subdivision. Without these affidavits, the Bank would not have issued the

Title Insurance Corp., to write a lender's title insurance policy with no mechanic's lien

56. These affidavits were necessary to allow the Wadleigh Firm, as agent of Lawyers p. 10 10

pay LBI. Mr. Cleary advised Mr. LaMontagne to do the additional work. LBI did

Mr. Brooks told Mr. LaMontagne that, once this additional work was completed, he would

gave Mr. LaMontagne a list of additional work Mr. Brooks wanted done on the Subdivision.

72. According to Mr. LaMontagne, at some point following the closing, Mr. Brooks

mediating the dispute.

71. Mr. Cleary later learned that Mr. Gannon did nothing to follow through on

Mr. LaMontagne, and recommends mediation to settle those disagreements.

70. The May 21, 1997letterrecognizes"some disagreements"betweenMr. Brooks and

The redrafted letter is dated May 21,1997.

69. Mr. Gannon redrafted the letter as one to both clients for Mr. Cleary's signature.

it through mediation.

68. Mr. Gannon again stated that it was not a serious dispute and that he would handle

counsel for Mr. LaMontagne.

67. Mr. Gannon instructed Mr. Cleary not to send the letter and not to recommend other

against Mr. Brooks.

recommending counsel to Mr. LaMontagne to pursue a mechanics lien or other collection

withdrawing from all matters in which Mr. LaMontagne and Mr. Brooks were involved and

66. On or about May 15, 1997, Mr. Cleary prepared a draft letter to send to both clients

weeks following the loan closing.

65. Mr. LaMontagne advised Mr. Cleary that payment was still not forthcoming some

benefit.

he, Mr. Gannon, could get Mr. Brooks to pay and would do so for the Wadleigh Firm's p. 11 11

[BGDC] will fully bond over the Mechanic's Lien filed against the mortgaged premises.

79. The September 26, 1997 letter included the following:"... We understand that

Cleary responded to those questions on behalf of the Wadleigh Firm.

Firm, in his capacity as agent for the title company. By letter dated September 26, 1997, Mr.

Corporation, directed certain questions to Mr. William Tucker, a partner in the Wadleigh

78. In August or September 1997, the title company, Lawyer's Title Insurance

2001 at which time Mr. LaMontagne terminated his relationship with the Wadleigh Firm.

77. Mr. Cleary continued to represent Mr. LaMontagne on unrelated legal matters until

client.

Cleary argued to the Wadleigh Firm that Mr. Brooks should be immediately terminated as a

76. Mr. Gannon continued to represent Mr. Brooks throughout this time while Mr.

amount due Mr. LaMontagne or at least bond over the attachment.

75. At that meeting, Mr. Gannon again agreed to get Mr. Brooks to pay the outstanding

Tucker and Kathleen Sullivan, to meet with Mr. Gannon to resolve the matter.

74. Mr. Cleary solicited the help oftwo senior partners ofthe Wadleigh Firm, William

$375,000 on the Subdivision.

on August 1, 1997, Mr. LaMontagne obtained a mechanics lien attachment in the amount of

Mr. Cleary did this without Mr. Gannon's knowledge. With the assistance of new counsel,

73. In June or July 1997, Mr. Cleary recommended other counsel to Mr. LaMontagne.

of this event.

the work was unsatisfactory, and that he would not pay LBI. Mr. Cleary has no recollection

approximately $35,000 of additional work on the Subdivision. Mr. Brooks then claimed that p. 12 12

on the Subdivision. LBI then filed an action in the Hillsborough County Superior Court to

84. In late 1999, while the arbitration was pending, the Bank commenced foreclosure

firm.

Hillsborough County Superior Court against Mr. Cleary, Mr. Gannon, and the Wadleigh

83. On March 30, 2001, Mr. LaMontagne filed a legal malpractice lawsuit in

of$465,292.85.

to arbitration. On May 10, 2001, the arbitrator issued an award in favor ofLBI in the amount

82. Subsequently, Mr. LaMontagne filed suit against Mr. Brooks, and the matter went

lien."

81. Mr. Brooks did not pay LBI, nor did Mr. Brooks take any action to"bond over the

Mr. Davis copied two individuals on his letter: Mr. Cleary and Mr. Cassidy (Loan Officer).

this default. have taken the initiative to obtain a bond in an effort to cure form of the proposed bond. We appreciate the fact that you bond, including information on the bonding company and the undersigned, in writing, the status of your efforts to obtain a mechanics' lien. Please provide the Bank and the dated September 26, 1997 that you intend to bond over the Cleary, Esquire, of Wadleigh, Starr, Peters, Dunn & Chiesa, It is our understanding, based on a letter from Charles F.

Partnership and Great Oaks about LBI's lien. In that letter, Mr. Davis wrote:

80. In a letter dated October 1, 1997, Mr. Davis (Bank's lawyer) wrote to the

about LBI's Mechanic's Lien.

Tucker. Mr. Cleary understood that Mr. Gannon was still speaking directly with Mr. Brooks

understanding was based on a statement made by Mr. Gannon during the meeting with Mr.

Upon your receipt of this bond, this should resolve this particular claim ...." Mr. Cleary's p. 13 13

and convincing evidence of a violation ofN.H. R. Prof. Conduct 1.7(a) and 1.7(b).

and continuing to represent both Mr. Brooks and Mr. Lamontagne thereafter constitutes clear

88. Mr. Cleary's conduct, as detailed above, in representing Mr. Brooks at the closing

has violated the Rules of Professional Conduct as follows: Conduct Committee concludes that there is clear and convincing evidence that Charles F. Cleary The above-listed facts having been found by clear and convincing evidence, the Professional

of the Rules of Professional Conduct contained in the Notice of Charges.

the Notice of Charges. Additionally, Mr. Cleary has admitted each of the alleged violations

87. In the Stipulation, Mr. Cleary has admitted every material allegation contained in

Builders, Inc. v. Bowman Brook Purchase Group, 150 N.H. 270 (2003).

November 24,2003, the Supreme Court affirmed Judge Sullivan's Order. See LaMontagne

86. Mr. Brooks appealed that Order to the New Hampshire Supreme Court. On

slip op. at 20-22 (N.H. Super. Ct., July 1, 2002).

for its services." See LaMontagne Builders, Inc. v. Bank of New Hampshire, No. 00- E-OOll,

BGDC for"all of the costs, expenses and attorney's fees it has incurred in pursuit of payment

Brooks personally; and (b) an award against Mr. Brooks personally, the Partnership, and

ruled that LBI was entitled to (a) a judgment in the amount of $465,292.85 against Mr.

to enjoin the bank's foreclosure and to set aside the conveyance. However, Judge Sullivan

85. By Order dated July 1,2002, the Superior Court (Sullivan, J.) denied LBI's requests

Partnership to BGDC was fraudulent as to LBI.

enjoin the foreclosure sale and claimed that the transfer of the Subdivision from the p. 14 14

included testimony of Robert LaMontagne. that the issue of the appropriate sanction was extensively addressed at the hearing panel level and the majority to the recommendation of the hearing panel and Disciplinary Counsel, and the fact substantial financial loss to Robert LaMontagne. Substantial deference, however, was given by violations committed, the serious nature of the violations, and particularly because of the proffered that the sanction of a reprimand was not harsh enough in view of the number of sitting, there was lengthy debate regarding the appropriate sanction to be imposed. It was Following two oral arguments and a careful review of the record by the PCC panel members

in violations ofthe Rules of Professional Conduct.

directions of more senior attorneys, such as Mr. Gannon, where those directions would result

N.H. R. Prof. Conduct 5.2 prevents a more junior attorney, such as himself, from following

was contrary to Mr. Cleary's jUdgment at the time. Nonetheless, Mr. Cleary stipulated that

would be clear and convincing that his conduct in this case was directed by Mr. Gannon, and

92. Mr. Cleary stipulated that were this matter to proceed to a hearing, the evidence

convincing evidence of a violation ofN.H. R. Prof. Conduct 8.4(a).

91. In light of the evidence of the above Rules violations, there is necessarily clear and

Conduct 1. 16(a)(l).

between them constitutes clear and convincing evidence of a violation of N.H. R. Prof.

representation of Mr. Brooks and Mr. Lamontagne despite being aware of the conflict

90. Mr. Cleary's conduct, as detailed above, in failing to withdraw from the

evidence of a violation ofN.H. R. Prof. Conduct 1.9(a).

David A. Miller of Lawyers Title Insurance Corporation constitutes clear and convincing

89. Mr. Cleary's conduct, as detailed above, in drafting the September 26, 1997 letter to p. 15 15

after their Contract dispute. He agrees that his failure to refusal to get involved with Mr. LaMontagne and Mr. Brooks Mr. Cleary. Mr. Cleary should have persisted in his original Gannon expressed that outrage on more than one occasion to decision not to represent Mr. Brooks at the closing. Mr. Wadleigh Firm. Mr. Gannon was outraged by Mr. Cleary's clients at the direction of Mr. Gannon, his supervisor at the conflict between these two clients. Mr. Cleary represented the Cleary's motive from the beginning was to stay out of the Mr. LaMontagne and Mr. Brooks. To the contrary, Mr. act with a dishonest or selfish motive when he represented (b) Absence of a dishonest or selfish motive. Mr. Cleary did not

prior disciplinary record. (a) Absence of a prior disciplinary record. Mr. Cleary has no

as follows:

sanctions"). The relevant applicable mitigating factors listed in ABA Standards § 9.32 are

formally adopted these Standards, the Court has"considered them when imposing

Shillen's Case, 149 N.H. 132, 139 (2003) (noting that, although the Court has never

Professional Responsibility Standards for Imposing Lawyer Sanctions § 9.0 (1991);

mitigating factors which counsel in favor of a Reprimand. See ABA Center for

involves a serious conflict, and Mr. LaMontagne suffered a large injury, there are numerous ( 94. A Reprimand is the appropriate sanction in this matter. While the matter

93. Mr. Cleary has agreed to accept a Reprimand for his conduct.

these Standards, the Court has"considered them when imposing sanctions"). Case, 149 N.H. 132, 139 (2003) (noting that, although the Court has never formally adopted Professional Responsibility, Standards for Imposing Lawyer Sanctions (1991). See,~, Shillen's ~,Feld's Case, 149 NH 19,28 (2002). This sanction is also in accord with the ABA Center for sanction is in accord with the purposes of attorney discipline as described by The N.H. S. Ct See, maj ority vote, concludes that the appropriate discipline in this matter is a Reprimand. This Having made the aforementioned findings and rulings, the Professional Conduct Committee, by

supervising partner for matters involving these two clients, played a

evidence is clear and convincing that Mr. Gannon, as Mr. Cleary's

a. The role of Mr. Gannon in this matter has been discussed above. The

act as mitigation.

backdrop, there is one unique circumstance in this matter that deserves attention and should

"Each disciplinary case involves unique facts and circumstances ...." With that as a

all-inclusive. Indeed, the Commentary to ABA Standards § 9.1 states, in relevant part,

95. While the ABA Standards § 9 .32 list thirteen mitigating factors, the list is not

man whom Mr. Cleary holds in high regard. and frustration that his behavior caused Mr. LaMontagne, a Specifically, Mr. Cleary has expressed remorse for the harm (e) Remorse. Mr. Cleary has expressed remorse for his behavior.

length, Disciplinary Counsel can attest to his character. this Stipulation as Exhibit 2. Having met with Mr. Cleary at and reputation. See Letters regarding Mr. Cleary, attached to (d) Character or reputation. Mr. Cleary has an excellent character

for his misconduct. cooperative, forthcoming, and eager to accept responsibility Disciplinary Counsel,. Mr. Cleary has been completely attitude toward proceedings. In all his dealings with (c) Full and free disclosure to disciplinary board or cooperative

motives. misconduct was a result of poor judgment, not selfish representation on that event. In short, Mr. Cleary's Brooks pay Mr. LaMontagne. Indeed, he conditioned his the closing, Mr. Cleary's motive was to ensure that Mr. Gannon's pressure and agreeing to represent Mr. Brooks at neither selfish nor dishonest. After succumbing to Mr. no question, however, but that Mr. Cleary's motives were rebuff Mr. Gannon has resulted in his misconduct. There is p. 17 17

is consistent with ABA Standards §§ 4.3 & 9.0.

factors, and considering the unique circumstances ofthis case, a Reprimand

discussed above, and no aggravating factors. In light of the mitigating

added). In this matter, there are numerous mitigating circumstances, as

generally appropriate in cases involving conflicts of interest ...." (Emphasis

aggravating or mitigating circumstances, . . . the following sanctions are

c. Finally, ABA Standards § 4.3, begins its discussion as follows:"Absent

factor as to Mr. Cleary.

finding of"no misconduct with a warning" as to Mr. Gannon is a mitigating

and Mr. Gannon's role as Mr. Cleary's supervising partner), the Committee's

unique facts presented in this case (i.e., the mitigating factors listed above

sanction the Committee decides to issue in Mr. Cleary's case. In light ofthe

challenge, it is a decision which will necessarily stand alongside whatever

b. While the Committee's decision with respect to Mr. Gannon is not subject to

and to more closely supervise less experienced attorneys working for him."

between existing clients, assur[ing] that any waivers be reduced to writing

misconduct" and with a warning about being"more sensitive to conflicts

dismissed the matter as to Mr. Gannon with a finding of"no professional

Gannon. By letter dated May 28, 2003, the Professional Conduct Committee

LaMontagne's July 23, 2001, letter of complaint, he correctly included Mr.

significant role behind the scenes directing Mr. Cleary's actions. In Mr. p. 18 18

File Robert LaMontagne Landya B. McCafferty, Esq. John Kissinger, Esq. c.c. Charles F. Cleary, Esq.

and 8.4(a), with a REPRIMAND.

Cleary for violating N.H. Rules of Professional Conduct: 1.7(a), 1.7(b), 1.9(a), 1.16(a)(1)

For all of the above reasons, the Professional Conduct Committee sanctions Charles F.