John G. Vanacore (2007)

the Vanacore Law Office, 19 Washington Street, Concord, New Hampshire.. law in October, 1983.. At all times material to this proceeding, he has been practicing at 1.. Respondent John G. Vanacore is a New Hampshire attomey who was licensed to practice

Stipulation, as follows: The Committee found, by clear and convincing evidence, the facts as agreed to in the

decision detailed below. Having heard from the parties and considered the record, the Committee reached the

absent and did not vote.. Page. Committee member Toni M. Gray was recused from the matter James R Martin was telephone), Gerald A.. Daley, Richard H. Darling, Gretchen Rule Hamel, Reporter, and David N. Alan J Cronheim, Thomas P Connair, Ellen L Arnold (via telephone), David N.. Cole (via meeting. Members present included Margaret Nelson, Chair, Benette Pizzimenti, Vice Chair, ("Committee;) heard oral argument on Febmary 20,2007, and deliberated later in the same stipulation as to facts, mles, costs, and sanction.. The Professional Conduct Committee Hampshire. Prior to a hearing, Mr. Vanacore and Assistant Disciplinary Counsel executed a This matter arose from a complaint filed by Ms.. Jessica Merchant ofFlanklin, New

Vanacore, John G adm. Jessica Merchant # 04-077

Alan J ClOnhei1n Holly B Fazzino, Admin Coordinator Thomas p" Connait • non attmney member David N Cole David N. Page' Ellen L Arnold James R Martin Ioni M Gray,' Vice Chan 603-224-5828. Fax 228-95 I I Gretchen Rule Hamel Benelle Pizzimenti, Vice Chair Concord, New Hampshire 0330 I Richard H. Darling' Margaret H. Nelson, Chair 4 Park Street, Suite 304 Gerald A. Daley'

p. 2 9.. On April 25, 2003, Mr.. Vanacore wrote to Ms.. Jackie Keating, an adjuster at MetLife,

Merchant's box. customary U.s Postal Selvice policy in Franklin, the letters were probably placed in Ms letters were not returned by the post office to MI. Vanacore, and, consistent with P.O Box 10 in Flanklin, instead of her proper address at PO Box 13.. Howevel, the 8.. Mr.. Vanacore's aforementioned correspondence to Ms.. Merchant was addressed to her at

requesting again that she sign a letter· of protection. Ms.. Merchant did not respond. Merchant on Aplil9, 2003, enclosing a copy of the Welts firm's latest demand and 7 Following further communication from the Welts firm, Mr. Vanacore wrote to Ms..

protection Ms ~AeI'chan.t did not respond" October 23, 2002, and sent her a lettel on the same day asking her to sign a letter of letter of protection signed by Ms.. Merchant Mr. Vanacore conferred with his client on 6. By letter of October 18, 2002, the Welts firm advised Mr Vanacore that it required a

of the settlement proceeds. sent a"letter of protection" to the Welts firm, indicating that the debt would be paid out accident She supplied copies ofthe letters to Mr Vanacore, who, in turn, executed and Franklin Hospital for medical services rendered to Ms. Merchant following the subject Welts, White and Fontaine ("the Welts firm") demanding payment of$2,795A3 due 5.. In Septembel and October, 2002, Ms.. Merchant received letters from the law film of

MetLife, the defendant's insurance carrier.. Merchant's claims, including the collection of medical records and communications with 4. Mr .. Vanacore proceeded in a timely fashion with the investigation and preparation of Ms.

such fees. Vanacore prior to settlement or for a lien on settlement proceeds to secure payment of agreement contained no provision for fees chargeable in the event oftelmination of Mr.. 25% of any recovery on behalf of the minor children, plus costs advanced. The fee fees 0[33-1/3% of any recovery on behalfofMs Merchant, plus costs advanced, and 15,2002 .. On that date, Ms Merchant executed contingency fee agreements providing for 3. Ms.. Merchant retained Mr.. Vanacore to represent her and her minor children on February

responded to the complaint in his letter of Octobel 20, 2004. of personal injury claims arising out of the automobile accident Mr. Vanacore has 2004. They arose in connection with Mr.. Vanacore's perfOlmance as counsel in pursuit claims against Mr.. Vanacore are set fOlth in a sworn letter of complaint dated May 27, her three children were involved in an automobile accident on December 28, 2001. Her 2 Complainant is Ms.. Jessica Merchant of Franklin, New Hampshire.. Ms.. Merchant and p. 3 ~

counsel on November 20, 2003 Vanacore" Consistent with Ms Merchant's instmctions, MI" Vanacore withdrew as her the attmnev-client relationshin as - p. 3 ~-------,,, ---- - - described herein., Ms" Merchant telminated MI --- 15" Following issuance of the aforesaid default judgment, and in light of the deterioration of

MI" Vanacore was responsible fOI allowing the judgment to be entered had not previously been made aware ofthe suit However, Ms" Merchant believed that this was the first notice she received of any fOImallaw suit filed in COUlt, Mr.. Va.1J.acore Welts film notified Ms, Merchant of the default judgment AccOIding to Ms Merchant, 14, By letter of November 4, 2003, addressed to 16 Glen Stteet, P 0, Box 13 in Flanklin, the

Franklin, NH 03235,," Judgment, appar'ently selved by mail to"Jessica Merchant, PO Box 13, 16 Glen Street, entered on October 30, 2003, Nor did Ms, Merchant respond to a Motion fOI Final resided" Ms" Merchant did not file an appearance 01 an answer, and default judgment was abode selvice at 16 Glen Street in Franklin where Ms" Merchant claims she no longel Ms" Merchant on behalf of Franklin Hospital" A July 21, 2003, rerum ofselvice indicates 13, In July 2003, the Welts film initiated suit in MelIimack County Superior Comt against

settle fOI the policy limits or for any other amount attomey-client relationship deteliOIated Ms" Merchant never autholized MI, Vanacore to 12 In light ofthe foregoing difficulty in communication regarding the insurance issue, the

Jr, Esquire, who assured Ms" Merchant that Mr, Vanacore's advice was COllect. statements relative to coverage, MI Vanacore obtained the selvices of Glenn G., Geigel, coverage was accUlate" Because Ms" Merchant expressed doubt as to the veracity of his value of the claims" The infolmation provided to Ms" Merchant relative to insUlance Mr Vanacore's veracity in repOlting filets about insurance coverage and his assessment of the insurance covelage applied to limit her potential recovelY, Ms" Merchant questioned him regarding settlement of the various claims, and she had difficulty understanding how 11, Ms" Merchant was velY disappointed with MI, Vanacore and the infOImation supplied by

additional recovelY on behalf of the children, obtain the $25,000 policy limits for Ms" Merchant, he might be able to waive his fee fOI insurance policy applied to the various claims, Nfl, Vanacore indicated that ifhe could little settlement value, In the course of ttying to explain to Ms" Merchant how the consequent limitation in potential recovelY for her and that the children's claims had velY limits applicable to the underlying claims, Mr. Vanacol'e infOImed Ms Merchant of the 10 ShOItly thereafter, Ms" Keating advised Mr" Vanacore of the $25,0001$50,000 policy

process with Ms, Merchant. Vanacore had previously discussed the demand amount and described the negotiation review the matter., Ms Sirois advised that the crurier had no choice but to honOI the p. 4 recovery), Ms.. Merchant o p. 3 ~jected to the lien and told Ms,. Sirois she wanted a judge to Vanacore's asselted lien on settlement proceeds ($3,008J2 from Ms,. Merchant's at MetLife, about payment of the settlement runounts Ms., Sirois refened to MI 24. In eruly FeblUruy, 2004, Ms. Merchant spoke with Ms.. Stephanie Sirois, another adjuster

matters. each fOI two of her children Ms., Merchant had not filed suit in connection with these to settle her claim fOI a total of $16,500,. At some point, she also agreed to accept $1,200 23.. On or about Januruy 13, 2004, Ms.. Merchant, representing herself, agreed with MetLife

Vanacore's customruy hOUlIy late Merchant's claim and her children's claims.. Chruges were calculated using MI "selve as liens" ... ,") included al! chruges a.'1d expenses logged in connection with Ms. 22,. Statements accompanying MI .. Vanacore's Novembel 20, 2003, lettel to the crulier (to

settlement was achieved he discussed fees payable in the event he was not allowed to remain in the case until rurangement Mr.. Vanacore had not previously issued any bills to Ms.. Merchant; nor had recoverable (01 that MI , Vanacore might be willing to waive) under the contingent fee 21 Ms. Merchant and MI, Vanacore had never discussed fees other than those potentially

might have for fees and costs incUlred on behalf of Ms., Merchant and her childr'en 20, At no time did MI', VanacOIe initiate any COUlt plOcess to seCUl'e payment of claims he

letter to the cruder or to any"liens .. " calculated.. Nor was there any specific reference to MI., Vanacore's aforementioned lien Vanacore, there was no discussion as to the runount or as to how the fee would be While they appru'ently agreed that a fee would paid fO! the time invested by MI 19.. At the time of telmination, Ms, Merchant and Mr Vanacore spoke about the issue of feeS ..

and her children''to selve as liens on any eventual settlement or judgment in her cases.. " Vanacore attached itemized statements of chruges for services rendered to Ms Merchant in the package was MI .. Vanacore's letter of srune date to MetLife. With that lettel, MI. 18.. MI .. Vanacore also tUIned over his file to Ms.. Merchant on Novembel 20,2003 Included

incmred to date on behalf of l'v1s" 1'v1erchallt and her children" he made no reference to the question of attorney fees fOI selvices rendered and costs issues beruing on her claim and her obligation to deal with medical expenses. However, 17. In his letter of withdrawal, Mr. Vanacore undeltook to alelt Ms. Merchant to vruious

Nor had he obtained a settlement offer from the calliel any COUlt action or administrative proceeding on behalf of Ms. Merchant or hel children. 16.. As of the date of telmination, Mr. Vanacore had not entered an appearance or initiated lCU rCUllUU,Y

p. 5 affecting the interests of his client 30. MI. Vanacore owed a duty to pelfolm competently in connection with any matter

evidence, the violations of disciplinary lules as agreed to in the Stipulation, as follows: The above facts having been established, the Committee found, by clear and convincing

liens claimed or the fees charged in connection with the various claims. commUllication, oral or written, between ~v1i.. Vailacore and Ms.. Merchant relative to the would ask Mr .. Vanacore to retUJn Ms.. Merchant's calL There was no subsequent Ms.. Merchant called back later and reiterated her complaint Ms Noll indicated that she Ms.. Merchant was highly emotional and confrontational and Ms Noll hung up the phone.. money out of the children's settlements in spite of his promise not to do so.. However, Ms.. Merchant spoke briefly with Ms.. Noll, complaining that Mr .. Vanacore had taken Vanacore's office to discuss the liens and fees charged in connection with the claims. 29.. Aftel receiving the aforementioned settlement checks, Ms Merchant called Mr.

outstanding fees and costs attributable to Ms.. Merchant and her children. Vanacore deposited all of the funds in his firm's operating account as payment for proceeds. The amounts were consistent with his time and expense records.. Mr .. 28.. Mr. Vanacore accepted each ofthe aforementioned payments out of the settlement

checks to ML Vanacore dated FeblUary 27, 2004, fOJ $305 26 and $303 .07. Noll, regarding the"liens", MetLife issued checks for the children's claims and separate $13,49L88.. FoUowing fi.uther communication with Mr.. Vanacore's paralegal, Deborah 27.. Ms Merchantaccepted the carlier's check dated FeblUary 20,2004, in the amount of

and one to Mr. Vanacore fOJ $3,008J2 .. checks would be issued and tendered under separate cover-one to hel for $13,491.88 2004, Ms.. Keating of MetLife advised Ms.. Merchant that, with respect to her claim, two $16,500 in full satisfaction of he I personal injUly claim. By letter dated FeblUary 19, .lVL~".lH\.IH ... UaJ.U A ,",Ut. u a ~l;'lLl"lll'l.all ~ll;"llll;llL U- 10, L. V'+, at;l: L n l\;fn 1t,f"" ......... t.."" ........ e"e..,,~~+eA........... -4+1 ..... ~.... _+ a~'.......... ~.... -+..la+-...l T:'_1... _______ 1 n'"'0"-.1 -"'-epL1"-g-

the settlement of any potential dispute over the lien claimed or fees charged.. 25. Neither Ms.. Merchant nor anyone from MetLife notified Mr. Vanacore prior to closing on

and Ms.. Merchant. Ms. Merchant did not respond. separate check to Mr.. Vanacore or to issue a single check payable to both Mr. Vanacore attomey lien and asked Ms. Merchant to choose whether she wanted the carlier to issue a ofNH R, Prof. C I 4" p. 6 42, There is clear' and convincing evidence that the foregoing conduct constitutes a violation

41, Mr" Vanacore neglected to contact Ms Merchant or otherwise to respond to her inquiry,

about fees charged in connection with her children's claims" claimed by Mr" Vanacore, Ms, Merchant contacted Mr, Vanacore's office to complain 40" Following disbursement of settlement proceeds by the insurance carrier, net of fees

under which fees would be calculated and paid fOl services rendered to date 39 At the time of termination, Mr. Vanacore did not discuss with Ms" Merchant the terms

38" Prior to settling the personal injury claims, Mr, Vanacore was terminated by Ms, Merchant

and her children, t.he absence of a settlement or verdict obtained by Me Vanacore in favor of Ms, Merchant 37 Mr" Vanacore did not have an agreement with Ms" Merchant for the payment of fees in

the question of fees" the matter, including the effect his tennination prior to settlement or trial would have on 36, Mr" Vanacore had a duty to keep his client reasonably informed regarding the status of

violation ofNH R Prof. C. U(a) and (b)(l)(2), 35, There is clear and convincing evidence of the foregoing aiiegations which constitute a

relative to the aforesaid proceeds of settlement 34, Ms, Merchant did not assent to any charging or retaining liens asserted by Mr.. Vanacore

31, Mr, Vanacore undertook to claim such attomey's liens contrary to applicable law,

!vfercnant's claillI or the claims of her children" attomey's fees on proceeds of the settlements obtained in connection with Ms" 32, Pursuant to RSA 311 :13, Mr, Vanacore was not entitled to assert charging liens for

client's settlement proceeds, New Hampshire law and court rules to perfect and pursue an attorney's lien on his 31, Mr, Vanacore failed to apply or to obtain specific knowledge as to the proper way under considers the effect of any aggravating 01 mitigating factors on the ultimate sanction.") p. 7 whet-her they affect the baseline sanction. Id. ("After determining the sanction, [the COUlt] fOUith and [mal step in the analysis: the existence of any aggravating or mitigating factors and appropriate sanction"). Once the baseline sanction is determined, the COUIt then looks to the applying these factors, the first step is to categOlize the respondent's misconduct and identify the determining a baseline sanction See Wolterbeek's Case, 152 NH 710,714 (2005) ("In The first three steps create the frarnewOIk for characterizing the misconduct and

existence of aggravating or mitigating factors.. " Standards § 3.0; Coffey's Case, 152 N H. at 513.. mental state; (c) the potential or actual injUly caused by the lawyer's misconduct; and (d) the part analysis for COUIts to consider in imposing sanctions:"(a) the duty violated; (b) the lawyer's it looks to them for guidance. Coffey's Case, 152 N.H. at 513.. The Standards set fOith a fom­ account the severity of the misconduct" Id.. Although the COUIt has not adopted the Standards, 152 NH 503,513 (2005) (intemal quotation marks omitted)."The sanction must take into integrity of the legal profession, and prevent similar conduct in the futUIe" Kg., Coffey's Case, disciplinary power"is to protect the public, maintain public confidence in the bar, preserve the Reprimand in connection with the misconduct found in this matter. The pUipose ofthe COUIt'S Sanctions (1992) ("Standards") SUppOit the conclusion that Mr. Vanacore should receive a New HalnpspJre law a.lld the kmelican Bar Association's Standards for Imposing Lawyer

the appropIiate sanction is a reprimand. The above facts and violations having been established, the Committee determined that

Conduct 84(a) mles, there is necessarily clear and convincing evidence that he has violated NH. R Prof. 43 Because there is clear and convincing evidence that Mr.. Vanacore violated the above

Merchant at some risk of potential loss However, Ms.. Merchant did not make cleoo to Mr. assertion of a lien and his failme to communicate adequately with Ms.. Merchant, placed Ms. To the extent Ms.. Merchant may have had a valid dispute regooding fees, Mr. Vanacore's

without service of a valid lien determination to issue separate checks to Mr. VanacOJe, over Ms.. Merchant's objection, and Mr.. Vanacore's eHOJ in the manner of pm suing a lien was compounded by the coorier's 311:13 because the ui1derlying personal injury claim was not the su~iect of a fOImal proceeding. Decisions, Rule LIS.. Mr. Vanacore was not otherwise entitled to perfect a lien under RSA judgment attachment process under RSA 51 I-A, he neglected to do so. See Committee Notes to relative to pmsuit of a lien to secme his claim. While he might have availed himself of the pre­ In pmsuing payment of such fees, Mr Vanacore failed to recognize limitations in the law

fees and expenses associated with services rendered to date.. earn his contingent fee, there is no dispute that Mr.. Vanacore was entitled to recover reasonable Merchant lost confidence in Mr.. Vanacore and terminated him before he could settle the case and at maximizing her recovery for personal injUIY sustained in an automobile accident While Ms.. Prior to termination, Mr. Vanacore had provided appropriate legal services to his client directed urlderstand the law and he failed to effectively supervise his staffin pUIsuing recovery of his fee process for secUIing recovery of his fees. Rather, he negligently failed to reseoo·ch and evidence that MI .. Vanacore undertook deliberately to avoid 01 circumvent the appropriate Vanacore eIIed by asserting a lien in his cOHespondence with the insmance coorier, there is no Vanacore's state of mind and the injUIy or potential injUIy caused by his conduct. While Mr To determine the baseline sanction, the Standoods next require analysis of both Mr.

contemplate an"admonition" or"reprimand" fOJ such conduct.! Standoods, § §.. 453 and 454. as an"isolated instance of negligence," or failme to understand a legal procedme. The Standoods Under the first prong of the analysis, Mr.. Vanacore's conduct may be fairly chooacterized the Standards is a Public Censure under New Hampshir'e law

p. 9 the investigation and prosecution of this matter. Mr Vanacore shall pay the expenses incurred by the Professional Conduct Committee in

appropIiate sanction in this matter is a Reprimand. by the Standards, as well as the purposes of attomey discipline in New Hampshire, the recommended baseline sanction Taking into consideration the multi-part analysis recommended The aggravating and mitigating factors do not appear to warrant a change in the

their files in a timely marnrer" dismissed in 2000 with a warning that he should"respond to client requests for information from related to the conduct in the present case, a prior complaint filed against Mr. Vanacore was factor is Mr.. Vanacore's substantial experience in the practice oflaw. Furmer, while not directly He has been fully candid and cooperative in the investigation of this complaint An aggravating has acknowledged his mistake with regard to the lien and with regard to client communications.. factors that affect the baseline sanction. Mitigating factors include the following: Mr. Vanacore The final step in the analysis is to determine if there are any aggravating and/or mitigating

the underlying cases irregularities or excesses in the statements of charges issued by Mr. Vanacore in comrection with to be supported by the evidence, as summarized herein. There do not appear to be any agreed not to char·ge for their recovery. Neither of Ms.. Merchant's claims in this regard appears Merchant would also contest fees charged in the children's cases on grounds that Mr. Vanacore judgment obtained by Franklin Hospital for which she believes Mr.. Vanacore is responsible Ms. without merit Ms. Merchant would claim an offset to Mr .. Vanacore's fees based on the default deposited. Moreover, she has articulated two basic complaints relative to fees that appear to be Vanacore that she disputed his fee until after the insurance checks had been disbursed and p. 10 File Jessica Merchant Russell F. Hillimd, Esquire James L KIUse, Assistant Discipiinmy Counsel Distribution:

May 1...,2007 ~~. ~\iflli~---

G.. Vanacore for the violations ofthe Rules of Professional Conduct cited above Based on the above, the Professional Conduct Committee issues this Reprimand to John

v. CONCLUSION