James N. Sessler (2006)

Permit Waiver of Hearings Committee Process. and convincing evidence as set forth in the Stipulation which is attached as Exhibit 2 in the Motion to The Professional Conduct Committee detennined that the record supports the findings of fact by clear

Both motions are attached to this Order and made a part thereof.

Process, dated December 5, 2005. The Committee then granted Disciplinary Counsel's Motion to Pennit Waiver of Hearings Committee

Reconsideration, dated December 19, 2005. The Professional Conduct Committee, upon consideration, granted Disciplinary Counsel's Motion for

Martin, David N. Page. Gerald A. Daley abstained. Vice Chair, David N. Cole, Alan J. Cronheim, Eleanor Wm. Dahar, Gretchen Rule Hamel, James R. Members present included: Margaret H. Nelson, Chair, Benette Pizzimenti, Vice Chair, Toni M. Gray,

On January 17, 2006, the Professional Conduct Committee considered the matter.

Jfu"'1leS }J. Sessler, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

associated with the investigation and prosecution of this matter. for violating N.H. Prof. Conduct Rules: 1.1(a); 1.4, and 8.4(a). Mr. Sessler is assessed all costs For the above reasons, the Professional Conduct Committee issues this Reprimand to James N. Sessler

the Court has considered them when imposing sanctions). (N.H., October 31, 2005) (noting that although the Court has never formally adopted these Standards, Imposing Lawyer Sanctions (1991). See, e.g., Wolterbeek's Case, No. LD 2005-002, slip op. at 2 Hampshire Supreme Court and with the ABA Center for Professional Responsibility, Standards for Reprimand. This sanction is in accord with the purpose of attorney discipline as described by the New The Professional Conduct Committee concludes that the appropriate discipline in this matter is a

Professional Conduct: Rule 1.1(a): Competence; 1.4: Client Communications; 8.4(a): Misconduct. The Professional Conduct Committee concludes that James N. Sessler violated the Rules of

prosecution of the McDonald's lawsuit against the birthmother.

the issue of Mr. Sessler's lack of diligence related to the

neglected to address in the Notice of Charges and the Stipulation

of Hearings Committee Process, noting that undersigned counsel

without prejudice undersigned counsel's Motion to Permit Waiver

p. 3 1. In its Order dated December 14, 2005, the Committee denied

In support, Disciplinary Counsel states as follows:

Permit Waiver of Hearings Committee Process.

Order dated December p. 3 14, 2005, denying Disciplinary Counsel's Motion to

respectfully requests that the Professional Conduct Committee reconsider its

NOW COMES Landya B. McCafferty, Disciplinary Counsel, and

the following reasons:

respect to Mr. Sessler's failure to file the McDonald's lawsuit for

3. Undersigned counsel elected not to charge a Rule 1.3 violation with

undersigned counsel's charging decision in this case.

not have available to it certain material facts bearing on

p. 4 2. Undersigned counsel respectfully submits that the Committee did p. 5 3

(C) Grant such other relief as is fair and in the public interest.

of Hearings Committee Process; and

(B) Grant Disciplinary Counsel's previously filed Motion to Permit Waiver

(A) Grant this"Motion To Reconsider";

Honorable Committee:

WHEREFORE, Disciplinary Counsel respectfully requests that this

(Rule 1.3) problem.

was more of a communication (Rule 1. p. 6 4) rather than a diligence

Sessler's misconduct with respect to his failure to file the lawsuit

p. 6 4. For the above reasons, undersigned counsel concluded that Mr.

Andover, New Hampshire 03216, by re r mail po age prepaid . Franklin, New Hampshire 0323 p. 7 5, and to Ms. H McDonald, 72 Main Street, Sessler, Esquire, Fitzgerald, Sessler & Nichols, PA, 359 Central Street, To Reconsider" is being sent on this 19 day of December 2005, to James N. th Supreme Court Attorney Discipline Office, certify that a copy aforesaid"Motion I, Landya B. McCafferty, Disciplinary Counsel of the New Hampshire

"Stipulation" is attached as Exhibit 2.)

dated December p. 8 1, 2005 and December 5, 2005. (A copy of the

2. Disciplinary Counsel and Mr. Sessler have executed a"Stipulation"

attached hereto as Exhibit p. 8 1.)

Charges in this matter. (A copy of the Notice of Charges is

p. 8 1. On November 15, 2005, Disciplinary Counsel issued a Notice of

In support, Disciplinary Counsel states as follows:

from the Professional Conduct Committee in this matter.

parties to waive the process before the Hearings Committee and seek a ruling

respectfully requests that the Professional Conduct Committee permit all

NOW COMES Landya B. McCafferty, Disciplinary Counsel, and

Hearings Committee process, there is"good cause" to permit the

and all parties, including the complainant, agree to waive the

Counsel have entered into a stipulation on both facts and sanction,

7. Where, as is the case here, the Respondent and Disciplinary

rule under this section."

professional conduct committee may waive the application of any

states:"As good cause appears and as justice may require, the

Committee in the"Preface" to N.H. Sup. Ct. R. 37 A(III). That Rule

parties can seek a waiver of the process before the Hearings

6. Disciplinary Counsel finds support for the proposition that the

from the Professional Conduct Committee.

Hearings Committee and seeking a more expeditious result directly

McDonald the possibility of waiving the hearing before the

5. Disciplinary Counsel discussed with Mr. Sessler and Ms.

sanction.

to appear before the Hearings Committee to make an argument on

severe sanction. However, Ms. McDonald does not have the desire

Stipulation and with this pleading but she would prefer a more

4. Hope McDonald, the complainant, is in agreement with the

was the appropriate sanction.

contained in the Notice of Charges and agreed that a Reprimand

p. 10 3. In that"Stipulation," Mr. Sessler conceded all allegations 3

Dated: December 5, 2005

(B) Grant such other relief as is fair and in the public interest.

"Stipulation of Facts and Sanction"; and

(A) Issue a Ruling on the basis of the Notice of Charges and

Process";

(A) Grant this"Motion To Permit Waiver Of Hearings Committee

Honorable Committee:

WHEREFORE, Disciplinary Counsel respectfully requests that this

waive oral argument before the Committee.

9. In the event the Committee grants this request, all parties agree to

more expeditious result while preserving scarce judicial resources.

8. All parties agree that this request is made in an effort to seek a

Committee's ruling on the pleadings.

parties to waive the Hearings Committee process and seek the p. 11 4

postage prepaid. McDonald, 72 Main Street, Andover, New Hampshire 03216, by regular mail PA, 11 Academy Street, Laconia, New Hampshire 032 p. 11 46 and to Ms. Hope of December 2005, to James N. Sessler, Esquire, Fitzgerald, Sessler & Nichols, To Permit Waiver Of Hearings Committee Process" is being sent on this 5 day th Supreme Court Attorney Discipline Office, certify that a copy aforesaid"Motion I, Landya B. McCafferty, Disciplinary Counsel of the New Hampshire

& Nichols, PA, at p. 12 11 Academy Square, Laconia, New Hampshire 03246.

this proceeding, Mr. Sessler operated his law office as Fitzgerald, Sessler

Mr. Sessler was admitted to practice in p. 12 1976. At all times. material to

3. Mr. Sessler is an attorney licensed to practice law in New Hampshire.

Sessler.

McDonald asserted allegations of professional misconduct against Mr.

2. In a sworn letter of complaint dated August 4, 2003, Hope and Budd

violated.

Sessler, Esq., as well as the disciplinary rules alleged to have been

Charges sets forth both the allegations of misconduct against James N.

Court Rule 37A(III)(b)(2). In accordance with that Rule, this Notice of

p. 12 1. This Notice of Charges is issued pursuant to New Hampshire Supreme

NEW HAMPSHIRE SUPREME COURT -~--i r

explain to Ms. McDonald that there was nothing she could do to prevent

could do to prevent that from happening again. Mr. Sessler did not

the heartache of losing the baby again. She asked Mr. Sessler what she

McDonald made clear to Mr. Sessler that she did not want to go through

8. On March 6, p. 13 2002, Ms. McDonald met with Mr. Sessler at his office. Ms.

expressed their desire to adopt the baby and telephoned Mr. Sessler.

a renewed desire to give the baby up for adoption. The McDonalds

7. In March p. 13 2002, the birth mother contacted Ms. McDonald and indicated

mother.

changed her mind. The McDonalds returned the baby to the birth

December 6, p. 13 2001, Ms. McDonald learned that the birth mother had

McDonalds broughtthe baby to their home from the hospital. On

6. The baby was born on December p. 13 2,2001. On December 5,2001, the

and that only the McDonalds would have to appear in court..

that the birth mother would not have to appear in court before the judge,

completed in November p. 13 2001. Mr. Sessler also informed the McDonalds

that they first needed a home study, which the McDonalds then had

5. During the initial meeting with Mr. Sessler, he informed the McDonalds

represent them in adopting a baby that was due in December p. 13 2001.

4. On or about October p. 13 26,2001, the McDonalds retained Mr. Sessler to

Central Street, Franklin, New Hampshire 03 p. 13 235.

Mr. Sessler's current address is Fitzgerald, Sessler & Nichols, PA, at p. 14 359 3

making preparations for the adoption.

14. In May 2002, the McDonalds renewed their nome study and began

once again in front of a notary. Ms. McDonald complied once again.

advised Ms. McDonald to have the birth mother sign a corrected form,

birth mother's consent form was inaccurate in some respect. Mr. Sessler

1 p. 14 3. While awaiting news of the court date, Ms. McDonald learned that the

McDonalds appearance before ajudge.

forms, the only remaining step toward finalizing the adoption was the

once they obtained the birth parents' notarized signatures on the consent

12. Based upon Mr. Sessler's explanations, the McDonalds understood that

McDonalds.

11. On March 27, 2002, the birth mother delivered the baby to the

notary. The McDonalds complied.

a notary, and have the birth mother sign a consent form in front of a

10. Mr. Sessler further instructed the McDonalds to take the birth mother to

form in front of a notary. The McDonalds complied.

birth father at the New Hampshire State Prison, and have him sign the

two consentiorms. He instructed them to take one consent form to the

9. Rather, Mr. Sessler advised the McDonalds to come to his office to obtain

adoption.

the birth mother from repeating the events of the previous failed

., p. 15 4

Summons and forwarded it to the McDonalds for review. On September

20. On or about September p. 15 4, 2002, Mr. Sessler prepared a draft Writ of

mother on their behalf.

discuss this lawsuit. Mr. Sessler agreed to file a lawsuit against the birth

19. On August 8,2002, the McDonalds met with Mr. Sessler at his office to

mother's alleged fraud and misrepresentations regarding the adoption.

adoption. The McDonalds based their theory of recovery on the birth

against the birth mother to recover their expenses related to the failed

sought Mr. Sessler's assistance once again, this time to bring a lawsuit

18. The McDonalds were understandably devastated by the experience. They

McDonalds' home and retrieved the baby.

to her immediately. Eight hours thereafter, the birth mother went to the

judge. The birth mother demanded that the McDonalds return the baby

17. On July 25, 2002, the birth mother refused to give her consent before the

The hearing was scheduled for July 25, 2002.

already done all that was legally necessary to consent to the adoption.

learn this, as she understood from Mr. Sessler that the birth mother had

to give her consent in front of the judge. Ms. McDonald was dismayed to

16. Shortly thereafter, Ms. McDonald learned that the birth mother also had

the birth father gave his consent in front of the judge.

in front of a judge to sign the proper consent form. On July 2 p. 15 4, 2002,

1 p. 16 5. In July 2002, Ms. McDonald learned that the birth father had to be taken 5

Rules of Professional Conduct 1.I(a); 1.4; and S.4(a).

24. Mr. Sessler's conduct in this case raises questions under New Hampshire

their file.

conversation with Mr. Sessler, the McDonalds fired him and requested

the Writ, and the McDonalds had paid that invoice in full. After this

retainer. Indeed, the September invoice contained an entry for drafting

23. The McDonalds never understood that Mr. Sessler was awaiting a

within his firm represent them in the lawsuit.

longer handled litigation, and that they could have a different lawyer

retainer. Further, Mr. Sessler informed them for the first time that he no

the lawsuit had not been filed because they had not paid the required

22. When the McDonalds finally spoke to Mr. Sessler, he informed them that

informed the McDonalds that the lawsuit had been filed.

call from Mr. Sessler during this time, a secretary in Mr. Sessler's office

out whether it had been filed. While they did not receive a return phone

reaching Mr. Sessler. They wanted to follow-up on the lawsuit and find

21. Thereafter, for the next two months, the McDonalds had a difficult time

Sessler's office.

p. 16 5, 2002, Mr. McDonald returned the draft Writ with corrections to Mr. p. 17 6

he would no longer litigate cases (such as their lawsuit against the birth

Mr. Sessler had decided in the meantime to limit his practice such that

not make further contact with the McDonalds to explain (a) the fact that

30. After Mr. Sessler drafted the Writ of Summons in September 2002, he did

lawsuit.

to keep the McDonalds reasonably informed regarding the status of their

Mr. Sessler to bring a lawsuit against the birth mother, Mr. Sessler failed

29. After the adoption failed for the second time and the McDonalds retained

Prof. Conduct 1.1 (a).

28. Mr. Sessler's failures in this respect constitutes a violation of N.H. R.

competent representation. See N.H. R. Prof. Conduct 1.1(b)(1).

27.. In so advising the McDonalds, Mr. Sessler failed to provide them with

respect was inaccurate.

be court appearances by the McDonalds. Mr. Sessler's advice in this

parents' separately notarized consents, the only remaining events would

2 p. 17 6. Mr. Sessler advised the McDonalds that, after they obtained the birth

legal advice.

the birth parents would be necessary, Mr. Sessler gave them inaccurate

parents and then assuring the McDonalds that no further consent from

25. By advising the McDonalds to obtain notarized consents from the birth

. day period for him to file an answer. See Sup. Ct. R. 3 p. 18 7A(III)(b)(4).

receiving an answer from Mr. Sessler, or upon the expiration of the 30-

Hearings Committee appoint a hearing panel in this matter either upon

35. It is the duty of Disciplinary Counsel to request that the chair of the

See Sup. Ct. R. 3 p. 18 7 A(III)(b)(3)(A).

forth in this Notice of Charges"shall be deemed to be admitted."

34. In the event Mr. Sessler fails to file an answer, the allegations set

must assert all affirmative defenses. See Sup. Ct. R. 3 p. 18 7 A(III)(b)(3)(B).

respond specifically to each allegation of this Notice of Charges, and

R. 3 p. 18 7 A(III)(b)(3)(A). Mr. Sessler's answer must be in writing, must

30 days of the date of his receipt of this Notice of Charges. See Sup. Ct.

33. Mr. Sessler is advised that he must answer this Notice of Charges within

R. Prof. Conduct 8.4(a).

convincing evidence, this would necessarily constitute a violation of N.H.

32. In the event that anyone of the above allegations is proven by clear and

Conduct 1. 4 (a) - (c).

31. Mr. Sessler's failures in this regard constitutes a violation of N.H. R. Prof.

because the McDonalds had not paid him the requested retainer.

mother), and (b) the fact that Mr. Sessler had not filed the lawsuit p. 19 8

Date: November 15, 2005

matter. See Sup. Ct. R. 37 A(III)(b)(6)(A).

requested within 30 days of the appointment of a hearing panel in this

In the absence of"good cause," such pre-hearing conference must be

subsection (6) of that Rule, which provides for a pre-hearing conference.

37 A(III)(b)(5), which governs discovery in this matter, as well as

3 p. 19 8. Mr. Sessler's attention is also directed to Supreme Court Rule

See Sup. Ct. R. 37(20)(b)(2).

product, internal memoranda, and deliberations) of both, shall be pUblic.

Conduct Committee, as well as the written decisions (other than work

Charges that take place before the Hearings Committee and Professional

is now a public file. Further, the proceedings related to this Notice of

work product and internal memoranda of the Attorney Discipline Office)

37. This Notice of Charges and the file of Disciplinary Counsel (other than

37A(III)(b)(2).

and to testifY and present evidence on his own behalf. See Sup. Ct. R.

36. Mr. Sessler is advised that he has the right to be represented by counsel, p. 20 9

Andover, New Hampshire 03216. prepaid. A copy has also been sent to Ms. Hope McDonald, 72 Main Street, 2 p. 20 998 0664, return receipt requested and a copy by regular mail postage Street, Franklin, New Hampshire 03235 by certified mail #7000 0600 0029 James N. Sessler, Esquire, Fitzgerald, Sessler & Nichols, PA, 359 Central aforesaid Notice of Charges is being sent on this 15 day of November 2005, to th Supreme Court Attorney Discipline Office, certify that the original of the, I, Landya B.McCafferty, Disciplinary Counsel of the New Hampshire

., p. 21 1

Central Street, Franklin, New Hampshire 03235.

Mr. Sessler's current address is Fitzgerald, Sessler & Nichols, PA, at 359

& Nichols, PA, at p. 21 11 Academy Square, Laconia, New Hampshire 03246.

this proceeding, Mr. Sessler operated his law office as Fitzgerald, Sessler

Mr. Sessler was admitted to practice in p. 21 1976. At all times material to

2. Mr. Sessler is an attorney licensed to practice law in New Hampshire.

Sessler.

McDonald asserted allegations of professional misconduct against Mr.

p. 21 1. In a sworn letter of complaint dated August 4, 2003, Hope and Budd

I. Stipulation of Facts

Sessler, hereby submit this Stipulation in the above-referenced case.

Disciplinary Counsel, Landya B. McCafferty, and Respondent, James N.

adoption.

prevent the birthmother from repeating the events of the previous failed

explain to Ms. McDonald that there was nothing anyone could do to

could do to prevent that from happening again. Mr. Sessler did not

the heartache oflosing the baby again. She asked Mr. Sessler what she

McDonald made clear to Mr. Sessler that she did not want to go through

7. On March 6, p. 22 2002, Ms. McDonald met with Mr. Sessler at his offIce. Ms.

expressed their desire to adopt the baby and telephoned Mr. Sessler.

renewed desire to give the baby up for adoption. The McDonalds

6. In March p. 22 2002, the birthmother contacted Ms. McDonald and indicated a

birthmother.

changed her mind. The McDonalds returned the baby to the

December 6, p. 22 2001, Ms. McDonald learned that the birthmother had

McDonalds brought the baby to their home from the hospital. On

5. The baby was born on December p. 22 2,2001. On December 5,2001, the

court in order to consent to the adoption.

McDonalds that the birthparents would be required to appear before the

completed in November p. 22 2001. Mr. Sessler failed to explain to the

that they fIrst needed a home study, which the McDonalds then had

4. During the initial meeting with Mr. Sessler, he informed the McDonalds

p. 22 2001.

represent them in the adoption of a baby that was due in December

p. 23 3. On or about October p. 22 26,2001, the McDonalds retained Mr. Sessler to 3

birthmother had to be taken in front of a judge to testify and give their

14. In late June 2002, Ms. McDonald learned that the birthfather and

making preparations for the adoption.

1 p. 23 3. In May 2002, the McDonalds renewed their home study and began

once again in front of a notary. Ms. McDonald complied once again.

advised Ms. McDonald to have the birthmother sign a corrected form,

birthmother's consent form was inaccurate in some respect. Mr. Sessler

12. While awaiting news of the court date, Ms. McDonald learned that the

McDonalds' appearance before a judge.

forms, the only remaining step toward finalizing the adoption was the

once they obtained the birthparents' notarized signatures on the consent

11. Based upon Mr. Sessler's explanations, the McDonalds understood that

McDonalds.

10. On March 27,2002, the birthmother delivered the baby to the

in court after they signed these consent forms.

under the clear impression that the birthparents did not have to appear

notary. The McDonalds complied. At that time, the McDonalds were

a notary, and have the birthmother sign a consent form in front of a

9. Mr. Sessler further instructed the McDonalds to take the birthmother to

form in front of a notary. The McDonalds complied.

birthfather at the New Hampshire State Prison, and have him sign the

two consent forms. He instructed them to take one consent form to the

8. Rather, Mr. Sessler advised the McDonalds to come to his office to obtain p. 24 4

Sessler's office.

5, 2002, Mr. McDonald returned the draft Writ with corrections to Mr.

Summons and forwarded it to the McDonalds for review. On September

18. On or about September p. 24 4, 2002, Mr. Sessler prepared a draft Writ of

birthmother on their behalf.

discuss this lawsuit. Mr. Sessler agreed to file a lawsuit against the

17. On August 8,2002, the McDonalds met with Mr. Sessler at his office to

adoption.

birthmother's alleged fraud and misrepresentations regarding the

adoption. The McDonalds based their theory of recovery on the

against the birthmother to recover their expenses related to the failed

sought Mr. Sessler's assistance once again, this time to bring a lawsuit

16. The McDonalds were understandably devastated by the experience. They

McDonalds' home and retrieved the baby.

to her immediately. Eight hours thereafter, the birthmother went to the

judge. The birthmother demanded that the McDonalds return the baby

15. On July 25,2002, the birthmother refused to give her consent before the

birthmother's hearing was scheduled for July 25, 2002.

2002, the birthfather gave his consent in front of the judge. The

all that was legally necessary to consent to the adoption. On July 2 p. 24 4,

she understood from Mr. Sessler that the birthparents had already done

consent before the judge. Ms. McDonald was dismayed to learn this, as p. 25 5

birth parents' separately notarized consents, the only remaining events

23. Mr. Sessler advised the McDonalds that, after they obtained the

gave the McDonalds incomplete and therefore inaccurate legal advice.

further consent from the birL.;'parents would be necessary, Mr. Sessler

birth parents and then giving the McDonalds the impression that no

22. By advising the McDonalds to obtain notarized consents from the

II. Stipulation as to Rules Violated

their file.

conversation with Mr. Sessler, the McDonalds fired him and requested

the Writ, and the McDonalds had paid that invoice in full. After this

retainer. Indeed, the September invoice contained an entry for drafting

21. The McDonalds never understood that Mr. Sessler was awaiting a

within his firm represent them in the lawsuit.

longer handled litigation, and that they could have a different lawyer

retainer. Further, Mr. Sessler informed them for the first time that he no

the lawsuit had not been filed because they had not paid the required

20. When the McDonalds finally spoke to Mr. Sessler, he informed them that

informed the McDonalds that the lawsuit had been filed.

call from Mr. Sessler during this time, a secretary in Mr. Sessler's office

out whether it had been filed. While they did not receive a return phone

reaching Mr. Sessler. They wanted to follow-up on the lawsuit and find

19. Thereafter, for the next two months, the McDonalds had a difficult time p. 26 6

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

violated the above rules, there is necessarily clear and convincing

29. Because there exists clear and convincing evidence that Mr. Sessler

evidence of a violation of N.H. R. Prof. Conduct l.4(a) - (c).

28. Mr. Sessler's failures in this regard constitute clear and convincing

because the McDonalds had not paid him the requested retainer.

birthmother), and (b) the fact that Mr. Sessler had not filed the lawsuit

he would no longer litigate cases (such as their lawsuit against the

Mr. Sessler had decided in the meantime to limit his practice such that

not make further contact with the McDonalds to explain (a) the fact that

27. After Mr. Sessler drafted the Writ of Summons in September 2002, he did

lawsuit.

to keep the McDonalds reasonably informed regarding the status of their

Mr. Sessler to bring a lawsuit against the birthmother, Mr. Sessler failed

2 p. 26 6. After the adoption failed for the second time and the McDonalds retained

evidence of a violation of N.H. R. Prof. Conduct l.I(a).

25. Mr. Sessler's failures in this respect constitute clear and convincing

competent representation. See N.H. R. Prof. Conduct l.I(b)(I).

24. In so advising the McDonalds, Mr. Sessler failed to provide them with

this respect was inaccurate.

would be court appearances by the McDonalds. Mr. Sessler's advice in p. 27 7

factors .... "). In imposing sanctions in attorney discipline matters, the

to the professional misconduct and to any aggravating or mitigating

sanctions, consideration must necessarily be given to the facts pertaining

involves unique facts and circumstances. In striving for fair disciplinary

Sanctions § 9.1 (1992) (hereinafter "Standards") ("Each disciplinary case

Center for Professional Responsibilitv, Standards for Imposing Lawver

2005) (citing Flint's Case, 133 N.H. 685, 689 (1990)). See also ABA

Wolterbeek's Case, No. LD-2005-002, slip op. at 2 (N.H., October 31,

33. Every case is to be judged "on its own facts and circumstances." See

(1996) (internal quotations and citations omitted).

circumstances disclosed by the record." Basbanes' Case, 141 N.H. 1,6

take into account both the severity of the misconduct and the mitigating

32. "The sanction ... must be sufficient to satisfY those goals .... It must

conduct in the future." Id. at 412-13 (internal quotation marks omitted).

the bar, preserve the integrity of the legal profession, and prevent similar

disciplinary power "is to protect the public, maintain public confidence in

880 A.2d 403,412 (N.H. 2005). Rather, the purpose of the Court's

31. Lawyer discipline is not intended to be punishment. See Coffey's Case,

purposes of attorney discipline.

the appropriate sanction in this matter. A Reprimand would serve the

30. Disciplinary Counsel and Mr. Sessler jointly recommend a Reprimand as

III. Stipulation as to Sanction p. 28 8

the closest equivalent in New Hampshire is a "Reprimand." 1 The Standards refer to the minimum sanction as an "Admonition." Although not identical,

of negligence in determining whether he or she is competent to handle a

"is generally appropriate when a lawyer engages in an isolated instance

imposed in a case involving an attorney's incompetence. A Reprimand!

37. Section 4.5 of the Standards addresses the appropriate sanction to be

of Rule 1.4.

that he failed to communicate properly with the McDonalds in violation

incompetent in violation of Rule l.l(a). Second, he has also stipulated

stipulated that certain legal advice he gave to the McDonalds was

36. Here, Mr. Sessler's misconduct falls into two categories. First, he has

factors on the ultimate sanction." See Wolterbeek's Case, slip op. at 2.

sanction, [the Court] considers the effect of any aggravating or mitigating

misconduct and identify the appropriate sanction. After determining the

35."In applying these factors, the first step is to categorize the respondent's

op. at 2 (quoting Standards § 3.0).

existence of aggravating or mitigating factors.'" Wolterbeek's Case, slip

potential or actual injury caused by the lawyer's misconduct; and (d) the

sanctions: '(a) the duty violated; (b) the lawyer's mental state; (c) the

34. The Standards"list the following facts for consideration in imposing

at 2.

Court looks to the Standards"for guidance." Wolterbeek's Case, slip op. p. 29 9

remorse. See Sections p. 29 9.32(a), (b), (e), and (1).

authority and a cooperative attitude toward the proceedings; and

dishonest or selfish motive; full and free disclosure to the disciplinary

to this matter: absence of a prior disciplinary record; absence of a

3 p. 29 9. Section 9.32 lists numerous mitigating factors, four of which are relevant

McDonalds.

his understanding of adoption law prior to agreeing to represent the

McDonalds. Certainly, he should have recognized the need to fine-tune

approximately twenty-six years at the time of his representation of the

practice oflaw." See § p. 29 9.22(i). Mr. Sessler had been practicing law for

relevant in this case: Mr. Sessler's "substantial experience in the

that may be considered as"aggravating." Only one of those factors is

factors affect the ultimate sanction. Section p. 29 9.22 lists numerous factors

38. The final question is whether the existence of aggravating or mitigating

sanction in this case.

similar stress and anxiety. A Reprimand is the appropriate baseline

McDonalds about their lawsuit against the birthmother caused them

stress. Mr. Sessler's failure to communicate properly with the

unquestionably caused the McDonalds to suffer needless anxiety and

not cause the birthmother to change her mind), his misconduct

McDonalds to suffer no cognizable legal harm (i.e., his misconduct did

See § 4.54. Here, while Mr. Sessler's incompetent advice caused the

legal matter, and causes little or no actual or potential injury to a client." p. 30 10

Dated: December 6, 2005

Dated: December.L 2005

Conduct Committee in the investigation and prosecution of this matter.

42. Mr. Sessler agrees to pay the expenses incurred by the Professional

IV. Stipulation as to Costs

therefore, the appropriate sanction in this matter.

an increase or decrease in the baseline sanction. A Reprimand is,

41. None of the aforementioned factors are of such a nature to justifY either

as a result of the birthmother's change of heart.

served to exacerbate the suffering which the McDonalds had experienced

McDonalds. Mr. Sessler has expressed remorse that his misconduct only

a sincere apology for the negative impact his misconduct caused the

40. With respect to remorse, Mr. Sessler has expressed profound regret and