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Nancy S. Tierney (2006)
I
handling real estate transactions.
2. The Meads also relied on Ms. Tierney'S assurance that she had experience
approximately $400.00 ($199.00 fiat fee, plus approximately $200.00 for a title search).
1. Mr. and Mrs. Mead relied upon Nancy Tierney'S assertion that her fees would be
as set forth in the Hearing Panel Report with respect to Rules 1.5(b), 1.15(b), U5(c) and 8.4(a):
review, determined that the record supports the findings of fact by clear and convincing evidence
On February 21,2006, the Professional Conduct Committee, upon consideration and
Factual Findings
Tierney was represented by Russell E. Hilliard, Esquire.
Landya B. McCafferty, Disciplinary Counsel, represented the Committee. Respondent Nancy S.
Vice Chair, Toni Gray, Vice Chair, and David N. Cole were recused. Gerald A. Daley abstained.
David N. Page, Stephen B. Stepanek and Eleanor Wm. Dahar, Reporter. Benette Pizzimenti,
H. Nelson, Chair, Thomas P. Connair, Gerald A. Daley, Gretchen Rule Hamel, James R. Martin,
Tierney, Nancy, S. advs. Michael Mead # 03-050. Members present were as follows: Margaret
On January 17,2006, the Professional Conduct Committee heard oral argument on the matter of
PUBLIC CENSURE
Tierney, Nancy S advs. Michael J Mead #03-050
Holly B. Fazzino, Admin. Coordinator Eleanor Wm. Dahar Alan J. Cronheim * non attorney member Thomas P. Connair Stephen B. Stepanek' David N. Cole David N. Page' Toni M. Gray,' Vice Chair 603-224-5828 • Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 0330 I Gretchen Rule Hamel Margaret H. Nelson, Chair 4 Park Street, Suite 304 Gerald A. Daley'
Professional Conduct Committee New Hampshire Supreme Court 2
factor to 1\1s. Tierney's unwillingness to COllLtTIll..njcate ,:vith }'Ar. 1.1ead directly.
11. Mr. Mead's sometimes rude and demanding behavior was likely a contributing
her paralegal or by sending letters.
10. Ms. Tierney refused to return Mr. Mead's phone calls, communicating instead via
money, she did not return it to them -holding it for another two years.
9. Although Ms. Tierney was aware that she was holding $394.1 2 of the Mead's
Tierney's trust account as part of the closing and were listed on the HUD Statement.
which was part of the condominium association fees. These funds had been paid to Ms.
8. Ms. Tierney failed to pay the $550.00 owed to the White Mountain Athletic Club,
fees."
7. Ms. Tierney later billed the Meads an additional $155.88 for"extra costs and
Rather, she stated that it could be corrected later.
6. Ms. Tierney did not address at the closing Mr. Mead's concern regarding her fees.
originally quoted Mr. Mead $865.00.
5. At the day of closing, Ms. Tierney's fees were substantially higher than she had
closing.
of familiarity with the procedure and documents appeared to contribute to the confusion of the
4. Although real estate closings are often hectic and last minute, Ms. Tierney's lack
a letter outlining the scope of her representation.
3. Ms. Tierney failed to respond to both of Mr. Mead's requests to provide him with 3
the money to Mr. Mead.
17. More than two years later, on July 26,2005, Ms. Tierney still had not disbursed
16. As of that date, Ms. Tierney was holding $ 394.12 ofMr. Mead's money.
Club.
Committee, Ms. Tierney became aware that Mr. Mead paid the $550.00 owed to the Athletic
15. Upon receipt of Mr. Mead's May 200 3 letter to the Professional Conduct
Rule 1.15(b): Safekeeping Property (Failure to Promptly Return Client Funds
violation ofN.H. Rule of Professional Conduct 1.5(b).
explanation of her fee structure as requested by Mr. Mead. Her failure to do so constitutes a
the fee as requested by Mr. Mead, Ms. Tierney was obligated to provide her client with an
14. Although it may not have been possible to precisely"predict" the final amount of
neither of which prompted a response from Ms. Tierney.
1 3. Mr. Mead requested clarification of Ms. Tierney's fees on at least two occasions-
Conduct 1.5(b).
client she had not previously represented, constitutes a violation ofN.H. Rule of Professional
12. Ms. Tierney's failure to communicate or explain her fee structure to Mr. Mead, a
Rule 1.5(b): Communication About Fee
8.4(a) of the N.H. Rules of Professional Conduct.
convincing evidence that Nancy Tierney violated Rule 1.5(b), 1.15(b), 1.15(c), 1.4, 1.16(d), and
The Professional Conduct Committee, upon consideration and review, finds by clear and
Ruliugs of Law 4
Professional Conduct 1. 4.
26. Ms. Tierney's actions described above constitute a violation of N.H. Rule of
25. Ms. Tierney failed to respond to M...r. Mead's requests for retLL"'11 telephone calls.
Tierney or her paralegal.
2 4. Ms. Tierney communicated with Mr. Mead in writing, through letters sent by Ms.
Rule 1. 4: Client Communication
23. Ms. Tierney is in violation of N.H. Rule of Professional Conduct U5(C).
listed on the BUD Statement.
22. The Attorney's fees were also disbursed prior to paying all of the closing costs
on the HUD Statement.
dispute could be resolved, Ms. Tierney disbursed to herself the amount of attorney's fees listed
21. Rather than maintaining the disputed amount in a separate account until the
was disputing the attorney's fees.
20. As ofthis date ofthe real estate closing, Ms. Tierney was aware that Mr. Mead
Rule 1.IS(e): Safekeeping Property (Disputed fees Not Kept Separate and Safeguarded)
Professional Conduct 1.15(b).
circumstances presented in this case and described above constitutes a violation of N.H. Rule of
19. Ms. Tierney's failure to promptly return Mr. Mead's money under the
which justified her holding back this money in the context of a fee dispute.
retainer agreement with Mr. Mead, nor was there any other agreement, written or otherwise,
desired, pursue the collection of her disputed remaining fees in another forum. She did not have a
18. Ms. Tierney should have returned the disputed funds to Mr. Mead, and if she had 5
all expenses related to the investigation and prosecution of this matter.
The Professional Conduct Committee orders Ms. Tierney to reimburse the committee for
these Standards, the Court has considered them when imposing sanctions).
slip op. at 2 (N.H., October 31, 200 5) (noting that although the Court has never fonnally adopted
Standards or Imposing Lawyer Sanctions (1991) See, e.g., Wolterbeek's Case, No. LD 200 5-002,
by the New Hampshire Supreme Court and with the ABA Center for Professional Responsibility,
a Public Censure. This sanction is in accord with the purpose of attorney discipline as described
The Professional Conduct Committee determines that the appropriate discipline in this matter is
Sanction
Professional Conduct 8.4(a).
above rules, there is necessarily clear and convincing evidence of a violation of N.H. Rule of
29. Because there exists clear and convincing evidence that Ms. Tierney violated the
Rule SAra): General Rule
N.H. Rule of Professional Conduct 1.16(d).
Professional Conduct Committee concludes that Ms. Tierney's actions constitute a violation of
28. Based on the failure of Ms. Tierney to return the disputed funds to the client, the
advance payment of fee that has not been earned ..."
to the extent reasonably practicable to protect a client's interests, such as .... refunding any
27. This Rule states that"upon tennination of representation, a lawyer shall take steps
Rule 1.1 6(d): Failure to Promptly Return Client Funds 6
Margaret . Nelson, ChaIr May<Xf",200 6
investigation and prosecution of this matter.
Ms. Tierney is ordered to reimburse the committee for all expenses related to the
1.1 6(d), and 8.4(a).
Nancy S. Tierney, for violating N.H. Rules of Professional Conduct I.S, l.1S(b), US(c), 1.4,
For the above reasons, the Professional Conduct Committee issues a Public Censure to
Conclusion