William M. Richmond (2006)

involved in a series of transactions with Venture Capital Media, Ltd. (VCM) respondent began representing Norman F. Alvis in March 2000. Alvis was The referee found, and the record supports the following facts. The

1. Facts

findings and order the respondent disbarred. 1. 16(d), and 8.4(a) and recommended disbarment. We adopt the referee's Hampshire Rules of Professional Conduct (Rules) 1. 4 (a) , 1.8(a), 1. 15(a)(1) & (c), found by clear and convincing evidence that the respondent violated New Based upon the parties' stipUlation of facts and submitted briefs, the referee one-year periods. We referred the petition to a Judicial Referee (Bean, J.). respondent, William M. Richmond, from the practice of law for two concurrent Committee on Professional Conduct (committee) filed a petition to suspend the GALWAY, J. On November 14, 2003, the New Hampshire Supreme Court

William M. Richmond, by brief, pro se.

brief), for the committee on professional conduct. Rath, Young & Pignatelli, P.C., of Concord (Andrew W. Serell on the

No. LD-2003-008 Original

page is: http:j jwww.courts.state.nh.usjsupreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 Errors may be reported by E-mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 - -.I.'-" "'./

letter granted the respondent"complete discretion over securities held in either due and payable 5 days prior to the beginning of the month in question." The "recognize[d] that the $15,000 retainer for June and each month thereafter is deposits, in the amount of $12,500 required for outside counsel"; and (4) corporate responsibility for the arrearage of $46, 107.43"; (3)"assent[ed] to the respondent's statement dated May 2,2001; (2)"accept[ed] both personal and respondent's request. In that letter, Alvis: (1) acknowledged receipt of the the alleged delinquent fees were to be paid. Alvis signed the letter at the The respondent then prepared a letter, dated May 3,2001, detailing how

alleged past due fees were not made. resign as Alvis' counsel if satisfactory arrangements for the payment of the amounts owed for attorney's fees. The respondent represented that he would In May 2001, the respondent alleged that Alvis was delinquent in

due and out of pocket expenses incurred." was to"continue to receive monthly billing statements itemizing [the] retainer outside entities was to be credited against Alvis' monthly retainer, and Alvis deals, as well as stock options. Any monies the respondent received from that included a --- DercentaQe - - of all stock received bv Edaddv on media stock that was to escalate to $24,000 per month beginning September 2001, and 2001, and provided, in pertinent part, for the payment of a monthly retainer fee counsel. This agreement was memorialized in a letter dated February 19, In February 2001, Alvis retained the respondent's firm as full-time legal

Co. and later as Cell Power, Inc. (Cell Power). negotiating transactions involving a company first known as Next Level Power The respondent also performed other legal services for Alvis, including

the restricted stock. brokerage accounts in the names of Sox and Edaddy to handle transactions of serve as a form of liability protection for Alvis. The respondent also established subsequently established a series of corporations to hold ownership in Sox to Initially, Alvis was the sole shareholder of Sox. However, the respondent

Alvis' behalf. Ltd. (Sox) and Edaddywarbucks, Ltd. (Edaddy) in St. Lucia to receive stock on the aforementioned transactions. Specifically, the respondent established Sox, companies to facilitate the sale of restricted stock that Alvis obtained through Pursuant to his representation of Alvis, the respondent set up offshore

December p. 3 31,2002. The respondent served as general counsel ofVCM from February 2000 through up companies as compensation for placing advertising for such companies. pursuant to which he and VCM received restricted stock from third-party start­ 3

respondent continues to retain those records. allowed Alvis to block his efforts to liquidate stock in those accounts. The Sox and Edaddy brokerage accounts. He also retained records that might have requested records. Rather, he retained records that allowed him to access the Despite Alvis' repeated requests, the respondent did not return all of the

terminating his services to Sivla, Inc., Alvis, and Team Alvis, LLC. to Alvis. On the same day, Alvis sent identical letters to the respondent send all files, books, records, or any other property of Edaddywarbucks, Ltd." pertaining to, Edaddy and also requested that the respondent "immediately any authority the respondent had to act on behalf of, or transact business terminating the respondent's services to Edaddy. The letter explicitly revoked On July 5,2001, Alvis sent another letter to the respondent, immediately

Alvis; and (4) an accounting of fees Alvis paid to the respondent. outside counsel; ( p. 3 3) an accounting of the alleged outstanding fees owed by respondent in providing legal services to Alvis; (2) the amount of time spent by files" and a "complete accounting" of: (1) the amount of time spent by the respondent, dated June 27, 2001, seeking the return of his "original client Through newly retained counsel, Alvis sent another letter to the

so without Alvis' consent, relying, instead, upon the May p. 3 3, 2001 letter. pay attorney's fees L~e respondent alleged were dUe him. The respondent did for the benefit of Alvis in the Sox and Edaddy brokerage accounts in order to After receipt of the June 20, 2001 letter, the respondent sold stock held

notice from Alvis. to make any transactions in or out of [Alvisl accounts" until receiving written of his accounts and files. The letter informed the respondent that he was "not also requested that the respondent prepare mutual releases and send Alvis all bills, including an itemization of all monies paid to outside counsel. The letter services, and requested that the respondent send him an itemized copy of all By letter dated June 20, 2001, Alvis terminated the respondent's legal

securities named in the letter. necessary" for the respondent to "exercise discretion" of Alvis' holdings in the sign "such promissory notes, powers of attorney and liens as may be [the respondent's] firm as such become due and payable." Alvis also agreed to first instance to the existing arrearage and subsequently to other amounts due proceeds on a two-thirds/one-third basis between [the respondent's] firm in the the respondent could "liquidate [certain of Alvisl securities ... dividing the Alvis' debt was paid in full and his account with the respondent was current, [Alvis'] name or in the name of [his] various nominees." It also stated that until p. 4 4

agreement solely for the respondent's benefit and, therefore, the respondent's that the respondent knowingly pressured Alvis into signing the May 3,2001 1.16(d) as warranting a sanction of suspension. The referee found, however, The referee characterized the respondent's violations of Rules l. p. 4 4(a) and

instructions. in his client's securities after June 20, 2001, contrary to Alvis' express counsel; and ( p. 4 4) Rules 1. 15(a)(1) and (c) by knowingly transacting and cashing him and without affording him a reasonable opportunity to seek the advice of letter without explaining the risks and consequences of signing the letter to representation; (3) Rule 1.8(a) by demanding that Alvis sign the May 3, 2001 property belonging to Alvis, Jr. and Cell Power upon the termination of his requested by Alvis; (2) Rule 1. 16(d) by failing to promptly surrender papers and violated: (1) Rule 1.4(a) by withholding documents and information reasonably The referee found by clear and convincing evidence that the respondent

II. Referee's Findings

marketing, developing, and financing of Cell Power's primary product. negotiations with another company and with venture capitalists regarding the the period from June 20,2001, to July 9,2001, Cell Power was involved in Cell Power's corporate records to its offices on or about July 9,2001. During the respondent's possession. The respondent forwarded most, but not all, of terminating the respondent's services and demanding all corporate records in the executive committee of Cell Power that ratified the acts of Alvis in On June 28, 2001, Alvis, Jr. faxed the respondent a resolution signed by

that represents a company with which Cell Power had a contract dispute. representation of Cell Power and his position as a"sub-tenant" of a law firm and had completely disclosed a potential conflict of interest between his successor general counsel submitted proof that Cell Power had hired his firm that the respondent could not provide the requested records unless the The respondent's attorney replied by letter dated June 28,2001, stating

June 27, 2001, again requesting the return of Cell Power's corporate records. Power, Inc." Cell Power's successor counsel sent a subsequent letter, dated return"all materials related to Cell Power, Inc. and considered property of Cell By letter dated June 22, 2001, Alvis, Jr. requested that the respondent

later than June 19,2001. president. The respondent's tenure as general counsel for Cell Power ended no ownership interest and for which Norman F. D. Alvis (Alvis, Jr.) served as counsel for Cell Power, Inc. (Cell Power), a corporation in which Alvis had an In addition to representing Alvis, the respondent served as general p. 5 5

property-in the form of unlimited discretion to liquidate brokerage accounts- 1.8(a) because it was a negotiated fee agreement in which Alvis conveyed The respondent argues that the May 3,2001 letter did not violate Rule

A. Rule 1.8(a)

(citation omitted). referee committed errors of law." Richmond's Case, 1 p. 5 52 N.H. 155, 158 (2005) the evidence presented. However, we review de novo to determine whether the reasonable person could reach the same conclusion as the referee based upon 507 (2005). "We review the referee's factual findings to determine whether a has occurred and, if so, the appropriate sanction. Coffey's Case, 152 N.H. 503, whether, on the facts found, a violation of the rules governing attorney conduct supported by the record, but retain the ultimate authority to determine In attorney discipline matters, we defer to the referee's factual findings if

[he] was not motivated by fraudulent or evil intent." arguing that"the duty imposed by [the Rules at issue] was fairly in doubt and that we should reject the referee's recommended sanction of disbarment, 1.16 are conclusively against the weight of the evidence. Finally, he asserts Fourth, he argues that the referee's findings that he violated Rules 1.4 and constituted a permissible"retaining lien" for alleged arrearages owed to him. arguing that his retention of the documents belonging to Alvis and Cell Power he contends that the referee erroneously found that he violated Rule 1.16(d), funds obtained frorn those accounts was justified under Rule l.1 p. 5 5(b). Third, (c), arguing that his liquidation of the brokerage accounts and retention of the asserts that the referee erroneously found that he violated Rule 1. 15(a)(l) and erroneous and"conclusively against the weight of the evidence." Second, he First, he argues that the referee's finding that he violated Rule 1. 8 (a) was The respondent contests the referee's findings and raises several issues.

III. Analysis

the respondent be disbarred. rules. The referee found no mitigating circumstances fu~d recommends that and ( p. 5 5) his intentional failure to comply with a number of court orders and matter; (4) his failure to show remorse or acknowledge his wrongful conduct; offenses; (2) his selfish motive; (3) his violation of multiple rules in the instant determining the ultimate sanction: (1) the respondent's prior disciplinary The referee found the following aggravating factors relevant to

and recommended disbarment as the appropriate sanction. the respondent knowingly violated Rule 1. 1 p. 5 5(a)(l) and (c) for his own benefit violation of Rule 1.8(a) warranted disbarment. Similarly, the referee found that p. 6 6

erroneous as a matter of law. ruling that there was no inherent conflict between Rules 1.5 and 1.8(a) was not Formal Opinion 02-427 (2002). Accordingly, we conclude that the referee's such an arrangement to Alvis at the outset of the transaction. See also ABA requirements of Rule 1.8(a) by communicating the risks and consequences of Alvis', the respondent was still required to comply with the procedural as a fee and knowingly acquiring a pecuniary interest that may be adverse to Thus, while Rule 1.5 did not prohibit the respondent from accepting property the responsibility to comply with the other Rules of Professional Conduct. accept property as payment for legal services, it does not absolve an attorney of Conduct 1.5 ABA Model Code Comments. While Rule 1.5 allows an attorney to for services, such as an ownership interest in an enterprise." N.H. R. Prof. Code Comments, under Rule 1.5,"[a] lawyer may accept property in payment Rule 1.5 applies to fee agreements. As interpreted by the ABA Model

interest adverse to a client ...." an attorney is required to follow when"knowingly acquiring [a] pecuniary Ha..-rnpshire Comments (emphasis added). Rule 1.8(a) enumerates procedures lawver's] client at the outset of the transaction." N.H. R. Prof. Conduct 1.8 New client must first effectively communicate the risks and consequences to [the Thus, a lawyer who"knowingly acquir[es a] pecuniary interest adverse to a

transaction. (3) the client consents in writing to the essential terms of the advice of independent counsel in the transaction; and (2) the client is given a reasonable opportunity to seek the to by the client after consultation;. the interest are: (i) fair and reasonable to the client, and (ii) agreed (1) the transaction and terms in which the lawyer acquires unless: possessory, security or other pecuniary interest adverse to a client A lawyer shall not ... knowingly acquire an ownership,

Rule 1.8(a) provides: concluding that there is no inherent conflict between Rules 1.5 and 1.8(a). We first consider whether the referee erred, as a matter oflaw, in

case. conflict between Rule 1.5 and Rule 1.8(a), and that Rule 1.5 governs in this he did not violate Rule 1.8(a). He further argues that there is an inherent their clients. He asserts that because the agreement complied with Rule 1.5, complied with Rule 1.5, which applies to fee agreements between attorneys and to the respondent as payment for legal services. The respondent contends it p. 7 7

brokerage accounts and apply the proceeds to the alleged arrearage in legal irrevocable agreement granting him unlimited discretion to liquidate the instructions." The respondent contends that the May 3,2001 letter was an Edaddyaccounts] after June 20, 2001, contrary to Alvis, Sr.'s express 1. 15(a)(l) and (c) by"transacting and cashing in securities [in the Sox and The respondent next challenges the referee's ruling that he violated Rule

B. Rule 1.15

N.H. at 158. could reach the same conclusion as did the referee. See Richmond's Case, 152 for Alvis, Sr.'s benefit." Accordingly, we conclude that a reasonable person respondent the unlimited discretion to liquidate the brokerage accounts set up particularly when coupled with evidence that the letter"conveyed to the of the record, including the stipulation of facts, supports the referee's [mdings, brokerage accounts if Alvis refused to sign the May 3, 2001 letter. Our review requested by Alvis; and (3) he would initiate an action to implead Alvis' which he needed legal representation; (2) he would refuse to release stock as despite the fact that Alvis was involved in on-going business negotiations for respondent's deposition testimony that: (1) he would cease representing Alvis pressuring Alvis, Sr. into signing it." Specifically, the referee relied upon the explained to Alvis, Sr. the consequences of not signing the letter, as a means of signing the letter." To the contrary, the referee found that"the respondent that the respondent never explained to Alvis, Sr. the risks and consequences of fvforeOVei, L~e referee found that b1.e stipulated facts and record "show

signed the letter on the same day it was drafted. deposition testimony that he drafted the May 3, 2001 letter and that Alvis opportunity to seek the advice of counsel. Specifically, the respondent gave support the referee's finding that the respondent did not give Alvis a reasonable reviewing the document on the other end." To the contrary, there is evidence to can only surmise that the drafts and revisions were the result of"an attorney the May 3, 2001 letter may have gone through several drafts, the respondent suppositions and conclusory statements made during his deposition. While find no evidence supporting these assertions other than the respondent's own After reviewing the stipulation of facts and the record, however, we can

was reviewing the document on the other end." the May 3, 2001 letter"went through several drafts, indicating that an attorney did so prior to signing the May 3,2001 letter. The respondent also argues that provided Alvis with a reasonable opportunity to do so, and believed that Alvis to support a finding that he advised Alvis to consult with independent counsel, own deposition testimony, the respondent asserts there was sufficient evidence 1. p. 8 8(a) was"conclusively against the weight of the evidence." Relying upon his The respondent next argues that the referee's ruling that he violated Rule 8

1. p. 8 8(a). Thus, the respondent's reliance upon Rule 1. 15(b) is misplaced. enforceable agreement by virtue of the respondent's failure to comply with Rule enforceable. For reasons previously stated, the May 3, 2001 letter was not an respondent's position presumes that the May 3, 2001 agreement was Edaddy brokerage accounts was permissible under Rule 1. 15(b). However, the continued liquidation and retention of funds obtained from the Sox and fees. Based upon this "irrevocable agreement," the respondent asserts that his brokerage accounts and apply the proceeds to the alleged arrearage in legal agreement in which Alvis gave him unlimited discretion to liquidate the The respondent argues that the May 3, 2001 letter was an irrevocable

to pay himself the attorney fees he alleged were owed him." express instructions to the contrary,"sold stock held for the benefit of Alvis, Sr. the referee's finding that the respondent, after June 20,2001, and despite receive written notice from [Alvis]." This letter and the stipulated facts support authority to"make any transactions" into or out of Alvis' accounts"until you J ~ ¥ ~ files to me at mv office." The letter exoresslv revoked the respondent's the respondent and outside counsel as well as the return of all"accounts and as legal counsel. He also requested an accounting of legal services provided by By letter dated June 20, 2001, Alvis expressly terminated t..he respondent

resolved. dispute shall be kept separate by the lawyer until the dispute is dispute arises concerning their respective interests, the portion in t..l"ere is a..l1. accounting ~nd sever~l1ce of their interests. If a interests, the property shall be kept separate by the lawyer until property in which both the lawyer and another person claim When in the course of representation a lawyer is in possession of

N.H. R. Prof. Conduct 1. 15(b) (emphasis added). Rule 1. 15(c) provides:

receive. client any funds or other property that the client is entitled to agreement with the client, a lawyer shall promptly deliver to the Except as stated in this rule or otherwise permitted by law or Qy

has an interest." It further provides: notifY the client"[u]pon receiving funds or other property in which the client N.H. R. Prof. Conduct 1.15(a)(1). Rule 1. 15(b) requires that a lawyer promptly identified as property of the client, promptly upon receipt, and safeguarded." of a client either be held in a separate"clearly designated trust account" or"be Rule 1.15(a) requires that property being held by a lawyer for the benefit

Rule 1.15(b). We disagree. fees, and thus his liquidation and retention of the funds was permissible under p. 9 9

the brokerage accounts. Both the record and the respondent's own deposition recognized that this could have been accomplished by impleading the funds in safeguard the securities at issue until the dispute could be resolved" and Rule 1. 15(c), the referee ruled that the respondent had an"ethical duty ... to permitted to exercise self-help to ensure that his fees were paid." Pursual1t to found that"[f]aced with this dispute, the respondent was not ethically Relying upon Douglas' Case, 147 N.H. 538,543-44 (2002), the referee

the brokerage accounts were disputed. validity of the respondent's continued authorization to transact stock trading in fees may not have been in dispute, clearly, the manner of payment and the brokerage accounts. Thus, while the amount of the alleged outstanding legal terminated the respondent's authority to make transactions into and out of the manner of payment was in dispute. The June 20, 2001 letter expressly substantial evidence from which a reasonable person could conclude that the that the amount of the alleged overdue fees was undisputed-there is (Emphasis added.) Even if we assume the truth of the respondent's assertion­

resolution of the dispute, such as arbitration. kept in trust and the lawyer should suggest means for prompt lawyer's contention. The disputed portion of the funds should be lawyer may not hold funds to coerce a client into accepting the remit the portion from which the fee is to be paid. However, a the funds without paying the fee, the lawyer is not required to lawyer's fee will be paid. If there is risk that the client ulay divert Lawyers often receive funds from third parties from which the

which state, in pertinent part: The respondent relies upon the ABA Model Code Comments to Rule 1.15,

funds to avoid paying the alleged outstanding legal fees. We disagree. the brokerage funds because there was a risk that Alvis was diverting the be paid. Consequently, the respondent argues that he was permitted to retain regarding the amount of the overdue fees or the manner in which they were to conclusion that the respondent coerced Alvis into accepting his contention there is no evidence to support either the existence of a dispute or L~e dispute the amount of the alleged overdue legal fees. The respondent contends respondent argues this finding is erroneous because Alvis did not, at any time, had continued authorization to transact stock in the brokerage accounts." The dispute between the respondent and Alvis, Sr. as to whether the respondent by the May 3, 2001 letter. At a minimum, the June 20, 2001 letter created a June 20, 2001 letter, Alvis, Sr. indicated that he no longer wished to be bound "even assuming that the May 3,2001 letter was enforceable, by sending the Nevertheless, the referee found by clear and convincing evidence that p. 10 10

lA(a). The ABA Model Code Comments have interpreted Rule p. 10 104 as providing comply with reasonable requests for information." N.H. R. Prof. Conduct client reasonably informed regarding the status of a matter and promptly Rule lA,"Client Communications," mandates that a lawyer"keep a

own interest and convenience." information specifically requested by Alvis"solely to serve [the respondent's] accounts. The referee ruled that the respondent withheld the documents and permitted Alvis to block the respondent's efforts to liquidate those brokerage and Sox brokerage accounts; and (3) retained the records that would have records; (2) retained the records necessary to permit him to access the Edaddy three separate occasions the respondent: (1) did not return all of the requested stipulation, the referee found that, despite Alvis'"reasonable requests," on promptly complying with his requests for information. Based upon the parties' violated Rule lA(a) by failing to keep Alvis reasonably informed and by not The referee found by clear and convincing evidence that the respondent

1. Rule 1.4(a)

in turn. issue with respect to these violations. We will address each of these violations respondent argues the referee"failed, or expressly refused, to consider" this retention of the documents was permissible under Rule 1.l6(d). The alleged arrearages owed to him. As such, the respondent contends his belonging to.1L\.lvis a..YJ.d Cell PO~Ner constituted a permissible"retaining lien" for violated Rules lA(a) and 1.16(d), arguing that his retention of the documents The respondent next asserts that the referee erroneously found that he

C. Rules 1 A (a) and Rule 1.l6(d)

respondent violated Rule 1.l5(a)(1) and (c). interests." Accordingly, the evidence supports the referee's finding that the arises with respect to property in which the client and attorney both have its core, Rule 1.15 requires that the status quo be maintained when a dispute securities held in a brokerage account. The referee correctly reasoned that"[alt Douglas' Case-and the instant case where the dispute arose over a client's distinction between a dispute that arose over funds held in escrow-as in at 540-44. We concur with the referee's conclusion that there is little outstanding legal fees violated Rule 1.l5(a)(1) and (c). Douglas' Case, 147 N.H. funds from a court ordered escrow account and used them to pay the client's was misplaced. In Douglas' Case, we held that an attorney who withdrew The respondent counters that the referee's reliance upon Douglas' Case

implead the funds to determine the parties' rights in the securities. testimony support the conclusion that the respondent was aware that he could p. 11 11

Cell Power's successor general counsel-the respondent did not immediately one dated June 22,2001, from Alvis, Jr. and one dated June 27,2001, from requesting the return of all materials and documents related to Cell Power­ general counsel for Cell Power on June 19,2001. Despite two letters The record supports the referee's finding that the respondent resigned as

may retain papers as security for a fee only to the extent permitted by law." 1. 16(d). The ABA Model Code Comments to Rule 1.16 state that "The lawyer papers and property to which the client is entitled ...." N.H. R. Prof. Conduct reasonably practicable to protect a client's interests, such as ... surrendering "Upon termination of representation, a lawyer shall take steps to the extent Rule 1.16,"Declining or Terminating Representation," requires that

authorized by Rule 1. 16(d). arguing that he was entitled to withhold. the records as a"retaining lien" to protect his client's interests." The respondent challenges the referee's ruling, representation, and by failing to take steps to the extent reasonably practicable belonging to Alvis, Jr. and Cell Power, Inc. upon the termination of his "violated Rule 1. 16(d) by failing to surrender promptly the papers and property The referee found, by clear and convincing evidence, that t.he respondent

2. Rule 1.16(d)

ruling on this issue. the respondent violated Rule 1.4(a) and we, therefore, defer to the referee's Furthermore, the record supports that a reasonable person could conclude that added), we cannot find the referee erred in failing to address this issue. evidence presented [to the referee]," Coffey's Case, 152 N.H. at 507 (emphasis "whether a reasonable person could reach the same conclusion based upon the Rule 1.16(d). Given that our review of the referee's findings is limited to issue of a valid"retaining lien" was in the context of the alleged violation of overdue legal fees. Rather, the only context in which the respondent raised the records, and information requested by Alvis as a"retaining lien" for alleged respondent did not assert that he was entitled to withhold the documents, committee's findings regarding this issue on several other grounds, the alleged "retaining lien." \Vhile the respondent's opening brief challenged the the committee's finding-that his actions violated Rule 1.4(a)-based upon an Our review of the record reveals that the respondent failed to challenge

Comments. at least insofar as major events are concerned." Id. New Hampshire the client to be informed of the progress of the lawyer's handling of the matter Hampshire Comments have interpreted this section as "establish[ing] a right of or convenience." Id. ABA Model Code Comments. Moreover, the New that:"A lawyer may not withhold information to serve the lawyer's own interest p. 12 12

in the record. O'Meara's Case, 150 N.H. at 159. account both the severity of the misconduct and any mitigating circumstances own facts and circumstances, and the sanction we impose must take into in the future. Coffey's Case, 152 N.H. at 5 p. 12 12-13. Each case is judged on its bar, preserve the integrity of the legal profession, and prevent similar conduct offense; its purpose is to protect the public, maintain public confidence in the discipline, however, is not intended as a mode of inflicting punishment for an Professional Conduct. O'Meara's Case, 150 N.H. 157, 159 (2003). Such ultimate authority to determine the sanction for a violation of the Rules of Professional Conduct, we next consider the suitable sanction. We retain the Having found that the respondent violated the aforementioned Rules of

IV. Sanctions

immediately upon request violated Rule l.16(d). that the respondent's failure to return Cell Power's documents and records that there is sufficient evidence from which a reasonable person could conclude supported by the underlying record and evidence. Accordingly, we conclude evidence." To the contrary, as previously stated, the referee's ruling was well findings regarding this violation are"conclusively against the,x/eight of Lh.e We are not persuaded by the respondent's contention that the referee's

belonging to Cell Power, Inc." such 'retaining lien' would have permitted the respondent to keep documents bills." The referee, therefore, found that he"need not determine whether any that the respondent retained the documents because of unpaid attorney fee Power, Inc. owed the respondent attorney's fees. Nor do the documents show found that,"None of the documents before the referee demonstrate that Cell belonging to Cell Power, Inc. because of unpaid bills." Specifically, the referee . do not support the respondent's assertion that he withheld the documents legal fees were paid. The referee found that"the stipulated facts and record .. allowing him to retain the requested documents until his alleged outstanding permitted to exercise a"retaining lien" against Cell Power's documents, thereby The referee also addressed the respondent's assertion that he was

violated Rule l.16(d). the respondent's failure to immediately return all of the requested records return all the records requested by ... Cell Power, Inc." The referee found that July 9, 200l. Furthermore, the parties stipulated that the respondent"did not dispute. The respondent returned some of Cell Power's requested records on law firm that represents a company with which Cell Power had a contract between his representation of Cell Power and his position as"sub-tenant" of a general counsel; and (2) he had disclosed a potential conflict of interest the successor counsel first prove that: (1) Cell Power had hired the successor return the records. Rather, through his attorney, the respondent insisted that p. 13 13

signing it and without affording him a reasonable opportunity to seek the the May 3, 2001 letter without explaining the risks and consequences of The respondent also violated Rule l.8(a) by pressuring Alvis into signing

suspension is the correct sanction. l.16(d) violations, because the respondent did not convert his clients' property, property, the more serious the injury to his clients. Relative to the l.4(a) and respondent knew or should have known that the longer he retained his clients' records being retained by the respondent. Thus, the referee found that the in business transactions that required certain information, documents and respect to Cell Power, the respondent was aware that Cell Power was involved brokerage accounts, to collect alleged outstanding legal fees. Moreover, with were other avenues of recourse available to him, such as impleading the and information to further his own interests. The respondent knew that there Standards, supra § 4.12. Here, the respondent withheld the requested records with client property and causes injury or potential injury to a client." warranted when"a lawyer knows or should know that he is dealing improperly to a client." Standards, supra § 4.11. However, suspension.is generally lawyer knowingly converts client property and causes injury or potential injury According to the Standards,"Disbarment is generally appropriate when a

respondent's duty to preserve his clients' property. Standards, supra § 4.1. the requested information and documents, these actions breached the convenience and to his clients' detriment. As a result of failing to surrender The respondent retained these documents solely for his own interest and belonging to Cell Power and Alvis, Jr. upon his termination as general counsel. Rule l.16(d) by failing to promptly surrender documents, records, and property respondent's efforts to liquidate those accounts. The respondent also violated Sox and Edaddy brokerage accounts and preventing him from blocking the information reasonably requested by Alvis, thereby denying him access to the The respondent violated Rule 1A(a) by retaining documents and

ultimate sanction. Standards, supra Methodology. we then consider the effect of any aggravating or mitigating factors on the appropriate sanction. After determining tI1e sanction for L~e specific violation, factors, we first categorize the respondent's misconduct and identify the Standards, supra § 3.0; see Kersey's Case, 150 N.H. at 587. In applying these misconduct; and (d) the existence of aggravating or mitigating factors." mental state; (c) the potential or actual injury caused by the lawyer's consideration in imposing sanctions:"(a) the duty violated; (b) the lawyer's 540 U.S. 815 (2003). The Standards set forth the following factors for (Standards) for guidance. Feld's Case, p. 14 149 N.H. 19,28 (2002), cert. denied, We look to the ABA Standards for Imposing Lawyer Sanctions (1992) 14

he had no intent to deceive or defraud his clients; (2) he made no referee found no mitigating factors. The respondent, however, argues that: (1) effect of mitigating and aggravating factors on the ultimate sanction. Here, the After determining the sfuiction for each specific violation, we consider the

client." Standards, supra § 4.11. knowingly converts client property and causes injury or potential injury to a According to the Standards, disbarment is warranted when"a lawyer respondent's duty to preserve his client's property. Standards, supra § 4.l. 2001, contrary to Alvis' express instructions. This conduct violated the cashing in securities in the Edaddy and Sox brokerage accounts after June 20, The respondent also violated Rules l.15(a)(1) and (c) by transacting and

respondent's misconduct, disbarment is the correct sanction. reasonable opportunity to consult with an attorney. Based upon the the risks and consequences of signing the letter and without affording him a or pecuniary interest that was adverse to his client without informing him of considerable financial injury to Alvis. Thus, the respondent obtained a security respondent's access to t..he brokerage accounts ultimately resulted in signing the letter on the same day it was drafted. Furthermore, the the risks and consequences of signing the letter. He also pressured Alvis into The respondent drafted the letter and presented it to Alvis without explaining unlimited discretion to liquidate brokerage accounts set up for Alvis' benefit. Alvis into signing the May 3, 2001 letter, which conveyed to the respondent the The record supports the referee's finding that the respondent pressured

consent." Standards, supra § 4.31 Commentary. pecuniary interest adverse to a client without the client's understanding or relationship by acquiring an ownership, possessory, security or other "courts generally disbar lawyers who intentionally exploit the lawyer-client intention to benefit himself." Wolterbeek's Case, 152 N.H. at 7 p. 14 14. Further, between the lav;yer and the client and whether the lawyer acts with the between suspension and disbarment is whether the conflict of interest is Standards, supra § 4.31(a). We have recognized that,"The critical distinction another, and causes serious or potentially serious injury to the client." interests are adverse to the client's with the intent to benefit the lawyer or consent,"engages in representation of a client knowing that the lawyer's However, disbarmentis warranted when a lawyer, without the client's informed causes injury or potential injury to a client." Standards, supra § 4.32. and does not fully disclose to a client the possible effect of that conflict, and Suspension is appropriate when"a lawyer knows of a conflict of interest

conflicts of interest. Standards, supra § 4.3. advice of counsel. This conduct violates the respondent's duty to avoid p. 15 15

public and preserving the integrity of the legal profession. See Sup. Ct. R. sanction satisfies the goals of the attorney discipline system by protecting the lack of any mitigating factors, we find that disbarment is warranted. This respondent's clients, the significant list of serious aggravating factors and the After considering the respondent's misconduct, the serious injury to the

aggravating factor. See Standards, supra § 9.22(e). occasions regarding this proceeding, which constitutes an additional has intentionally failed to comply with court rules and orders on several outstanding legal fees. Finally, we agree with the referee that the respondent done nothing wrong and maintains that he was simply trying to collect Wolterbeek's Case, p. 15 152 N.H. at 717. Instead, he continues to insist that he has conduct, which is another aggravating factor. See Standards, supra § 9.22(g); referee found that the respondent continues to show no remorse for his letter that benefited the respondent's adverse interests. Additionally, the information from his clients and pressured Alvis into signing the May 3,2001 respondent knowingly engaged in a course of misconduct that withheld another aggravating factor. See Standards, supra § 9.22(b). Specifically, the with the referee that the respondent's selfish motive for his misconduct is Standards, supra § 9.22(d); Wolterbeek's Case, 152 N.H. at 717. We also agree respondent's multiple offenses in this case are also an aggravating factor. See and his services in violation of Rules 1.1, 1.7, 1.8 and 8.4. See id. The competence and making a false or misleading communication about himself another unrelated case, he received a six-month suspension for lack of See Richmond's Case, 152 l'"-l.H. at 155. Then, on:r-vfay 6,2005, with respect to the respondent received a reprimand for an unrelated violation of the Rules. an aggravating factor. See Standards, supra § 9.22(a). Specifically, in 1999, The respondent concedes that his prior disciplinary offenses constitute

multiple occasions relative to this proceeding. the respondent's intentional failure to comply with court rules and orders on offenses, multiple offenses in this case, a selfish motive, a lack of remorse, and The referee found the following aggravating factors: prior disciplinary

Accordingly, we do not find any mitigating factors. Power's files after his resignation as general counsel. This did not happen. otherwise. Moreover, the respondent was obligated to promptly return Cell to receive payment of overdue legal fees," the facts and circumstances indicate the respondent contends he was acting on a"simple and quite ordinary desire Alvis' express instructions, for his own benefit and to Alvis' detriment. While then knowingly made transactions out of Alvis' brokerage accounts, against The respondent pressured Alvis into signing the May 3, 2001 letter, and

Cell Power files on July 9,2001, thereby releasing the"retaining lien." misrepresentations to Alvis or to any tribunal; and (3) he promptly returned the p. 16 16

BRODERICK, C.J.