Paul F. Coddington Jr. (2005)

from the Hearing, and the Hearing Panel Report dated October 4, 2005. September 9, 2005, t.he Transcript of the September 23, 2005 Hearing, iIlcluding the Ey~ljibits 1 - 6 pleadings of the parties, Disciplinary Counsel's Memorandum on Sanction: Disbarment dated Proposed Findings of Fact and Rulings of Law and Request for Costs dated September 9, 2005, the The Committee then deliberated, reviewing the Notice of Charges dated September 9, 2005, the

Charges. repeated failure to respond and to answer, admitted to the violations enumerated in the Notice of confined only to the matter of sanction since Mr. Coddington had, by defawt, as a consequence of his Oral Argument proceeded, presented by Attorney Kruse and Mr. Coddington. These arguments were

Disciplinary Counsel, was also present. Disciplinary Counsel, represented the Professional Conduct Committee. Landya B. McCafferty, and Stephen B. Stepanek. Mr. Paul Coddington appeared pro se, and James 1. Kruse, Assistant N. Page, Reporter. Not present were: David N. Cole; James R. Martin; Benette Pizzimenti, Vice Chair, Chair; Thomas P. Connair; Alan J. Cronheim; Eleanor Wm. Dahar; Gretchen Rwe Hamel; and David The Committee members hearing the matter included: Margaret H. Nelson, Chair; Toni M. Gray, Vice On November 15, 2005, the Professional Conduct Committee considered the above-referenced matter.

Recommendation for Twenty Four Month Suspension

Coddington, Paul F., Jr. advs. Professional Conduct Committee #04-095

Eleanor Wm. Dahar Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim Thomas P. Connair * non attorney member David N. Cole Stephen B. Stepanek' Toni M. Gray, * Vice Chair 603-224-5828 + Fax 228-9511 David N. Page' Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 James R. Martin Margaret H. Nelson, Chair 4 Park Street, Suite 304 Gretchen Rule Hamel

Coddington's firm's general client trust account at Citizens Bank, account number 330578- Concord. In the Audit Report, Mr. Calaman discusses financial discrepancies in Mr. 2004. Dw-ing L1.e releval'lt time-period, }fl...r. Coddington operated as a solo practitioner in 10. The Audit Report covers the following time-period: November 1,2000 through August 31, Notice of Charges. the Notice of Charges (as"Exhibit A") and was thereby incorporated and made a part ofthe from Craig A. Calaman, c.P.A. (hereinafter"Audit Report"). The Audit Report was attached to 9. The Notice of Charges is based on the content of an audit report dated November 17, 2004, and rule violations contained in the Notice of Charges. 8. By operation of Rule 37(III)(b)(3)(A), this pleading incorporates as admissions the alleged facts 37(III)(b )(3)(A). allegations set forth in the Notice of Charges shall be deemed to be admitted." N.H. Sup. Ct. R. 7. Because of Mr. Coddington's failure to file an Answer, the same Rule requires that"the service (July 12, 2005) to file an Answer to the Notice of Charges. 6. Pursuant to Rule 37A(III)(b)(3)(A), Mr. Coddington had thirty (30) days from the date of 5. To date, the Attorney Discipline Office has not received an Answer to the Notice of Charges. Deputy Mario V. Messina. See Exhibit 2, Return of Service signed by Deputy Messina. 4. On July 12,2005, Paul F. Coddington, Jr. was served the Notice of Charges"In Hand" by in-hand service. 3. On June 30, 2005, the Notice of Charges was sent to the Merrimack County Sheriffs Office for Exhibit 1, Copy of envelope returned by the Post Office. 2. On June 10, 2005, the certified mailing was returned by the Post Office "unclaimed." See Discipline Office issued a Notice of Charges in this matter. 1. On May 9, 2005, pursuant to New Hampshire Supreme Court Rule 7A(III)(b)(2), the Attorney

following Findings of Fact by clear and convincing evidence: After due consideration, the Professional Conduct Committee detennined the record supports the fees for a third client, and $75.00 for a fourth client. See Audit Report at pp. 5 -6. p. 3 recorded the disbursement by allocating $30.00 to earned fees for a second client, $25.00 to related to an appeal for a particular client. However, in the check register, Mr. Coddington the amount of$125.00. The memo line on the face of the check indicates that the payment 15. By way of example, on March 3,2003, check number 1077 was issued to Mr. Coddington in the check and Mr. Coddington's check register. Coddington's finn's trust account which reveal accounting discrepancies between the face of 14. At pp. 5 - 6 of the Audit Report, Mr. Calaman discusses three checks issued from Mr.

expenses. See Audit Report at pp. 3 -7. made disbursements from client trust funds to third parties in payment of his own personal account for specific clients. See Audit Report at pp. 3 -5. In other instances, Mr. Coddington wrote checks to himself at times when there were insufficient funds available in his finn's trust Coddington's finn's trust account was out-of-trust. In numerous instances, Mr. Coddington 13. At pp. 3 - 5 of the Audit Report, Mr. Calaman discusses eight separate clients for whom Mr.

12. A brief summary of the financial discrepancies in this account follows. maintain client ledgers or perfonn monthly reconciliations. maintenance and administration of client trust accounts, as Mr. Coddington did not properly the fees; and (c) Mr. Coddington did not comply with Supreme Court Rule 50 relative to the clients by leaving fees in trust for extended periods oftime after Mr. Coddington had earned personal and office expenses; (b) Mr. Coddington co-mingled his own funds with those of his following: (a) Mr. Coddington used funds from his finn's trust account to pay for his own Coddington's part with respect to his finn's trust account. These irregularities include the 11. By way of summary, the Audit Report reveals numerous financial irregularities on Mr. p. 4 Charges as"Exhibit C. ") him dated December 30, 2004. (A copy of this follow-up letter was attached to the Notice of 20. Mr. Coddington also failed to respond to the Attorney Discipline Office's follow-up letter to N.H. Sup. Ct. R. 37A(2)(a)(5)(C). 19. Mr. Coddington failed to respond within 30 days of the date of that complaint, as required by to the Notice of Charges as"Exhibit B.") docketed a complaint against Mr. Coddington. (A copy ofL'ris letter of complaint was attached 18. On the basis of the Audit Report, on November 24, 2004, the Attorney Discipline Office

reconciliations, as required by Rule 50(F). See Audit Report at p. 8. 50(2)(A). See Audit Report at p. 8. Mr. Coddington also failed to perform monthly Mr. Coddington rarely recorded the source and purpose of cash receipts, as required by Rule running balance for each client, as required by Rule 50(2)(A). See Audit Report at p. 8. Further, Ct. R. 50(2). See Audit Report at p. 8. Specifically, Mr. Coddington failed to maintain a that Mr. Coddington's client ledgers did not meet the minimum standards set forth in N.H. Sup. 17. After reviewing Mr. Coddington's check register and client ledger, Mr. Calaman concluded

expenses. See Audit Report at pp. 6 -7. Coddington disbursed $2,938.50 from his firm's trust account to pay his own personal or office Coddington paid personal or office expenses from his firm's trust account. In total, Mr. 16. At pp. 6 -7 of the Audit Report, Mr. Calaman discusses eleven (11) instances when Mr.

Personal Expenses Paid from Mr. Coddington's Firm's Trust Account p. 5 See Audit Report at p. 8.

28. Mr. Coddington also failed to perform monthly reconciliations, as required by Rule 50(2)(F). SO(2)(A). p. 5 See Audit Report at p. 8. 27. Mr. Coddington rarely recorded the source and purpose of cash receipts, as required by Rule required by Rule SO(2)(A). See Audit Report at p. 8. 26. Specifically, Mr. Coddington failed to maintain a running balance for each of his clients, as accordance with New Hampshire Supreme Court Rules. See Audit Report at p. 8. 25. The Audit Report reveals that Mr. Coddington did not maintain his accounting records in

Rnle 1.I5(a)(2) and Sup. Ct. R. 50(2)A & F: Failure to Maintain Proper Records

evidence ofa violation of N.H. R. Prof. Conduct 1.1S(a)(1). 24. Mr. Coddington's failures to safeguard his clients' property constitutes clear and convincing trust account. commingling his earned legal fees with their property, which Mr. Coddington held in his firm's 23. The Audit Report also reveals that Mr. Coddington failed to safeguard his clients' property by authorization. See Audit Report at pp. 6 - 10. withdrawing funds from his firm's trust account for his own personal use without proper 22. The Audit Report reveals that Mr. Coddington failed to safeguard his clients' property by account for eight separate clients. See Audit Report at pp. 8 - 10. 21. According to the Audit Report, Mr. Coddington was out of trust with respect to his firm's trust

Rule 1.I5( a )(1): Failure to Safeguard Client Property

Violations occurred: The Professional Conduct Committee found by clear and convincing evidence that the following

II. RULINGS OF LAW p. 6 At Oral Argument before the Professional Conduct Committee on November 15, 2005, Attorney Kruse

Coddington had blamed for his lack of responsiveness was not uncommon. Office also recognized that the"deer in the headlights" reaction to its investigations which Mr. agreed that only one client had been damaged in amount only $39.60 which has now been repaid. The charges ultimately brought against him. The Office did not argue that there was intentional theft and Respondent's clients as well as Respondent's complete failure to respond to the audit inquiry and serious problems with Respondent's accounting system and the potential for substantial loss to The Attorney Discipline Office initially argued for disbarment before the Hearing Panel because of the

remains suspended at this time. law until further Court Order for his failure to cooperate with the court ordered audit in this matter. He On June 30, 2004, The Supreme Court of New Hampshire suspended Mr. Coddington from practice of

m. RECOMMENDATION ON SANCTION- ANALYSIS

there is necessarily clear and convincing evidence of a violation of Rule 8.4(a). 31. Because there exists clear and convincing evidence of violation of the aforementioned Rules,

convincing evidence of a violation ofN.H. R. Prof. Conduct 8.1 (b). dated November 24, 2004 (Exhibit B in the Notice of Charges), constitutes clear and 30. Mr. Coddington's failure to respond to the Attorney Discipline Office's letter of complaint

&F. evidence ofa violation of N.H. R. Prof. Conduct 1.15(a)(2), as well as N.H. Sup. ct. R. 50(2)A 29. Mr. Coddington's failures to keep proper records in this regard constitutes clear and convincing involved in these matters was relatively small and that he had repaid the funds a client actually lost. p. 7 (although he has only been a member of the Bar since 2000) and that the actual amount of money As mitigating tactors, the Committee recognized that Mr. Coddington had no prior discipiinary record

trust while leaving a blank answer would perhaps go unnoticed. business or personal purposes because he knew an honest answer (yes) would cause him to be out of Coddington had left blank the answer to the question of whether or not he had used Trust Funds for Audit. The Committee also noted that in filling out his June 2003 Trust Accounting Report, Mr. with the Attorney Discipline Office, and in his failure to initially supply the records required for the The Committee found aggravating factors in the Respondent's failure to respond and conununicate

mitigating factors as discussed in the ABA Standards. determine the appropriate term of suspension, the Committee considered the pertinent aggravating and The Committee found that Mr. Coddington's co-mingling of funds warrants a suspension. To

Hearing Panel report. that his conduct would occur again. He did not challenge the other recon1mendations set forth in the the serious impact the current suspension has already had on him and maintained that it was unlikely not exceed three years, taking into account the 18 months since he was initially suspended. He noted Mr. Coddington agreed that a term of suspension was appropriate but took the position that it should

(almost 4 years) was $2,800.00. the total amount of money appropriated for personal use over the course of the period of irregularities negligence or recklessness but that the actual loss to any client was negligible and had been repaid and client funds for personal use. He indicated that the Respondent's state of mind at the time was gross reconunend suspension for a simple case of co-mingling of client's funds and disbarment for the use of suspension. He noted that the ABA Standards for Imposing Lawyer Sanctions (the" ABA Standards") and recommend a 3 year suspension, running from the date of the Court's order establishing such a of the ADO recommended that the Professional Conduct Conunittee adopt the Hearing Panel Report conditions 1, 2 and 3 of the Reinstatement as itemized above, as well as the fact that the Respondent p. 8 found that the protection offered to the public by the two additional years of suspension, and client funds but then suspended the suspension because of the mitigating factors. The Committee wherein the Court ordered a two year suspension for misappropriating a similarly small amount of In arriving at this sanction, the Committee also considered Morgan's Case 143 N.H. 475 (1999)

these Standards, the Court has considered them when imposing sanctions). Shillen's Case, 149 N.H. 132, 139 (2003) (noting that although the Court has never formally adopted Center for Professional Responsibility, Standards for Imposing Lawyer Sanctions (1991). See, e.g., Supreme Court. See, Feld's Case, 149 N.H. 19,28 (2002). This case is also in accord"lith the ABA This sanction is in accord with the purposes of attorney discipline as described by the New Hampshire

investigative and prosecution expenses. 4. Respondent will, on demand, reimburse the Professional Conduct Committee for all the Practical Skills Course offered aunually by the New Hampshire Bar Association. 3. Prior to, but as close as possible to resuming practice, Respondent will attend a full session of random audit by the Staff Auditor with the costs of such audit to be paid by Respondent. 2. In each of the first 3 years of resuming practice, Respondent's practice will be subject to Supreme Court Rules. Discipline Office that he has in place an accounting system that complies with Rule 50 of the 1. Upon re-entering practice, Respondent must demonstrate to the Staff Auditor of the Attorney

conditions to Reinstatement: date of final Court approval of this recommendation, and that the Court impose the following continue the suspension of Mr. Coddington for an additional twenty four (24) months following the suspension. Accordingly, the Committee recommends that the New Hampshire Supreme Court The Committee found that an appropriate sanction for all the violations enumerated above was a

IV. SANCTION p. 9 File Paul F. Coddington, Jr. Landya B. McCafferty, Disciplinary Counsel Distribution:

involved were relatively small. this case there was a co-mingling of client funds but no theft of funds, and that the amounts of money disbarment") where a large amount of client funds were misappropriated. The Committee noted that in client's funds, but stating that"the general rule in cases involving misuse of client's funds is Case, 131 N.H. 735, 740 (1980) (noting the lack ofunifonnity in the Court's sanctions for misuse of has been suspended since June 30, 2004, is in proper balance with the disbarment ordered in Woiccak's