Richard J. Walsh (2006)

of a serious car accident in Milton, New Hampshire. defendants for personal injuries suffered by Mr. Swanson on October 24, 1998, as a result 2. Mr. Walsh represented Mark C. and Lori S. Swanson in a lawsuit against vfu-iouS 03102. own law office as Attorney at Law, 212 Coolidge Street, Manchester, New Hampshire. P.O. Box 3360, Manchester, New Hampshire 03105. Mr. Walsh currently practices at his 2005, Mr. Walsh practiced at the firm of McDowell and Osburn, PA, 282 River Road, admitted to practice in 1976. At all times material to this proceeding, through January 1. NIT. Walsh is illl attorney licensed to practice lavl in 1'-Jew HampspJre. M..J. Walsh was Stipulation of Facts

the Stipulation of the parties. Stipulation in the matter. The Committee, upon review, hereby grants the Motion, and accepts Respondent, Richard J. Walsh, represented by Russell F. Hilliard, Esquire, submitted a Reporter. TO.ill Gray, Vice Chair was recused. Disciplinary Counsel, Landya B. McCafferty and Daley, Gretchen Ru1e Hamel, James R. Martin, David N. Page and Stephen B. Stepanek, Chair, Eleanor Wm. Dahar, David N. Cole, Thomas P. Connair, Alan J. Cronheim, Gerald A. Counsel. Members present were as follows: Margaret H. Nelson, Chair, Benette Pizzimenti, Vice Hearings Committee Process. The motion was made by Landya B. McCafferty, Disciplinary On February 21, 2006, the Professional Conduct Committee heard a Motion to Permit Waiver of

Walsh, Richard S. advs. Lori S. Swanson # 04-007

Eleanor Wm. Dahar Holly B. Fazzino, Admin. Coordinator 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 03301 Gretchen Rule Hamel Margaret H. Nelson, Chair 4 Park Street, Suite 304 Gerald A. Daley'

fact that Judge Moh! had granted the defendants' motions for summary judgment. 16. Mr. Walsh waited approximately nine months before communicating to the Swansons the 15. By Order dated April 4, p. 2 200 p. 3 3, Judge Moh! granted both motions for summary judgment. the motions for summary judgment before Honorable Bruce E. Moh!. 14. On March 17, 2003, Mr. Walsh appeared on behalf of the Swansons for oral argument on 13. On October 15 and November 21,2002, Mr. Walsh fIled objections to both motions. summary judgment on July 18 and October 9,2002. 12. Largely based on Mr. Swanson's deposition testimony, the defendants filed motions for took place thereafter at Mr. Spinale's residence. while at the restaurant, and that he had brought alcohol and cocaine to the"party" which 11. In his deposition, Mr. Swanson admitted that he had consumed only"one beer plus" 10. On April 10, 2002, the defendants took Mr. and Ms. Swanson's depositions. represented by Kevin C. Devine, Esq. 9. Mr. Spinale was represented by William A. Mulvey, Jr., Esq. The restaurant was alleged"reckless service." alleged a"social host" theory of liability. With respect to the restaurant, the lawsuit Seven, Inc. d/b/a Spinale's Italian Restaurant. With respect to Mr. Spinale, the lawsuit 8. The central defendants in the lawsuit were Frank Spinale, Jr. and the restaurant, Lucky County Superior Court (docket #01-C-295). 7. On October 18, 2001, Mr. Walsh fIled a lawsuit on behalf of the Swansons in Strafford ofMr. Natola. 6. On November 12, 1999, Mr. Walsh met with the Swansons for the fIrst time at the home brother. Mr. Natola is licensed in Massachusetts. 5. The Swansons were referred to Mr. Walsh by Michael F. Natola, Esq., Ms. Swanson's brain injury. 4. As a result of the accident, Mr. Swanson suffered severe injuries including traumatic charged, and convicted for felony-level Aggravated DWr. being driven by a friend, Kevin Clancy. Following the accident, Mr. Clancy was arrested, 3. At the time of the accident, Mr. Swanson was a passenger in his own vehicle, which was 3

and wish that things could have turned out differently. I certainly wish Mark, Lori, and you the best for the future,

and/or Lucky Seven, Inc. d/b/a Spinale's Italian Restaurant. necessary requirement of recklessness on the part of Mr. Spinale which were presented in the case in terms of establishing the Ultimately, we could not overcome the facts and circumstances going to be extremely difficult, and by no means a sure thing. Mark Swanson's injuries on parties other than Kevin Clancy was asked to be involved in these cases that establishing liability for a period of several years. I know we both realized when I was had put in a great deal of time and effort with respect to same over I am sorry that these cases turned out this way, because I

Court. Details will follow in a letter sent under separate cover. the part of the several defendants in the Strafford County Superior been the subject of successful Motions for Summary Judgment on I arn sorry to advise that the Swanson case is over, having

subject as above. This letter is in response to your recent telephone message, January 6, 2004: Walsh. On or about January 6, 2004, Mr. Walsh telefaxed a letter to Mr. Natola dated

18. The Swansons ultimately learned of Judge Mohl's Order from Mr. Natola, not Mr. to appeal Judge Mohl's Order. 17. In the meantime, Mr. Walsh took no independent action to preserve the Swanson's right p. 4 4 marks omitted). profession, and prevent similar conduct in the future." Id. at 412-1 p. 3 3 (internal quotation public, maintain public confidence in the bar, preserve the integrity of the legal 412 (N.H. 2005). Rather, the purpose of the Court's disciplinary power"is to protect the 27. Lawyer discipline is not intended to be punishment. See Coffey's Case, 880 A.2d 403, sanction in this matter. A Reprimand would serve the purposes of attorney discipline. 26. Disciplinary Counsel and Mr. Walsh jointly recommend a Reprimand as the appropriate Stipulation as to Sanction

Conduct 8. p. 4 4(a). rules, there is necessarily clear and convincing evidence of a violation ofN.H. R. Prof. 25. Because there exists clear and convincing evidence that Mr. Walsh violated the above constitute a violation ofN.H. R. Prof. Conduct 1.4(a), (b) and (c). 24. Mr. Walsh's failures in these regards, if proven by clear and convincing evidence, would after the Swansons received notice of Mr. Walsh's January 6,2004, letter. critical time frames: between the date of the Order and the January 6, 2004, letter; and 23. Mr. Walsh also failed to respond to Ms. Swanson's repeated telephone calls during two period, Mr. Walsh caused the Swansons to lose their right to appeal the Order. 22. By failing to notifY the Swansons of the Order until after the expiration of the appeal an appeal ofthe Order had expired. the Order until oil or about January 6, 2004. This was well after the time-limit for filing 21. Following Judge Mohl's April 4, 2003, Order, Mr. Walsh failed to notifY the Swa.tlSons of Stipulation as to Rules Violated

did not return any of these telephone calls. Swanson made numerous telephone calls to Mr. Walsh seeking explanation. Mr. Walsh 20. After Ms. Swanson learned of Mr. Walsh's January p. 6 6,200 p. 4 4, letter to her brother, Ms. the case. Mr. Walsh did not return any of Ms. Swanson's telephone calls. letter, Ms. Swanson telephoned Mr. Walsh on numerous occasions seeking an update on 19. Between the date of Judge Mohl's April 4, 2003, Order and Mr. Walsh's January 6, 2004, p. 5 5 know whether Mr. Walsh's clients would have elected an appeal and, if so, whether Mr. 33. The actual injury to the clients is difficult to assess in this case, as it is impossible to potential injury to a client." Standards § 4.44. reasonable diligence in representing a client, and causes little or no actual injury or Reprimand"is generally appropriate when a lawyer is negligent and does not act with potential injury to a client." Standards § 4.43. According to section 4.44, however, a does not act with reasonable diligence in representing a client, and causes injury or section 4.43, Public Censure"is generally appropriate when a lawyer is negligent and when a lawyer violates his duty to act with due diligence for his clients. According to 32. Section 4.4 of the Standards generally addresses appropriate sanctions to be imposed Wolterbeek's Case, No. LD-2005-002, slip op. at 2. the effect of any aggravating or mitigating factors on the ultimate sanction." See identify the appropriate sanction. After determining the sanction, [the Court] considers 31."In applying these factors, the fIrst step is to categorize the respondent's misconduct and Wolterbeek's Case, No. LD-2005-002, slip op. at 2 (quoting Standards § 3.0). lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.'" duty violated; (b) the lawyer's mental state; ( c) the potential or actual injury caused by the 30. The Standards"list the following facts for consideration in imposing sanctions: '(a) the Case, No. LD"2005-002, slip op. at 2. attorney discipline matters, the Court looks to the Standards"for guidance." Wolterbeek's misconduct and to any aggravating or mitigating factors ...."). In imposing sanctions in consideration must necessarily be given to the facts pertaining to the professional case involves unique facts and circumstances. In striving for fair disciplinary sanctions, Imposing Lawyer Sanctions § 9.1 (1992) (hereinafter"Standards") ("Each disciplinary 685,689 (1990)). See also ABA Center for Professional Responsibility, Standards for No. LD-2005-002, slip op. at 2 (N.H., October 31, 2005) (citing Flint's Case, 133 N.H. 29. Every case is to be judged"on its own facts and circumstances." See Wolterbeek's Case, record." Basbanes' Case, 141 N.H. 1,6 (1996) (internal quotations and citations omitted). both the severity of the misconduct and the mitigating circumstances disclosed by the 28."The sanction ... must be sufficient to satisfy those goals .... It must take into account 6 The Committee discussed the Stipulation agreement on case # 04-007. Upon a motion made and Conclusion

the investigation and prosecution of this matter. 42. Mr. Walsh agrees to pay the expenses incurred by the Professional Conduct Committee in Stipulation as to Costs

as the appropriate sanction for misconduct in this matter. 41. For these reasons, Disciplinary Counsel and Mr. Walsh jointly recommend a Reprimand here. received the Warning more than one year after he committed the misconduct at issue increasing the baseline sanction to Public Censure in light of the fact that Mr. Walsh 40. While the prior Warning is a proper aggravating factor to consider, it does not warrant misconduct here. (A copy of Mr. Walsh's prior Warning is attached hereto as Exhibit 1.) applicable here. Mr. Walsh has a prior Warning for conduct that is similar in nature to his 39. Section 9.22 contains a non-exhaustive list of potentia! aggravating factors. Only one is misconduct. Standards § 9.32(1). disciplinary system. Standards § 9.32(e). Third, Mr. Walsh has expressed remorse for his Second, Mr. Walsh has accepted full responsibility and been fully cooperative with the here. First, Mr. Walsh acted without selfish or dishonest motive. Standards § 9.32(b). 38. Section 9.32 contains a non-exhaustive list of potential mitigating factors. Three apply Reprimand appears to be the more appropriate saiiction. 3 p. 7 7. In light ofthe mitigating and aggravating factors present in this case, however, a Public Censure and a Reprimand. 3 p. 6 6. The appropriate baseline sanction in this matter appears to fall somewhere between a needless anxiety and stress, and to lose faith in the legal system. 35. Further, there can be no doubt that Mr. Walsh's misconduct caused his clients to suffer 34. The difficulty in assessing injury in this matter is due entirely to Mr. Walsh's misconduct. made, however, that the likelihood of success on appeal in the underlying matter was low. Walsh's legal arguments would have succeeded on appeal. A strong argument can be 7

File Russell F. Hilliard, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

April 20, 2006

the New Hampshire Supreme Court. See also Supreme COUi-t Rule 3 p. 7 7(A)(III)(d)(4). Pursuant to Supreme Court Rule 37(3)(c) last paragraph, Richard Walsh has the right to appeal to Right to Appeal

costs associated with the investigation and prosecution of this matter. Reprimand. Mr. Walsh is hereby ordered to pay the Professional Conduct Committee for the of Professional Conduct: 1.4(a), 1.4(b), 1.4(c) and 8.4(a). The Committee hereby orders this Waiver of Hearings Committee Process and Stipulation. Mr. Walsh violated the following Rilles duly seconded, and following further discussion it was then voted to Grant the Motion to Permit