Lanea A. Witkus (2007)

File Richard Y. Uchida, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

December 18, 2007

part thereof. also voted to accept the Stipulation to a Reprimand and costs attached hereto and made granted the parties' Motion to Permit Waiver of Hearings Committee Process. The Committee On December 11,2007, the Professional Conduct Committee, upon consideration,

Wirkus, Lanea A. advs. Christine M Wrightington # 04-062

Gerald A. Daley* Holly B. Fazzino, Admin. Coordinator Alan 1. Cronheim * non attomey member Thomas P. Connair James J. Tenn, Jr. 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 Chenell Drive, Suite 102 Richard H. Darling*

of Mark Wrightington, Sr.

3. The Complainant in this matter is Christine M. Wrightington, the ex-wife

change the custodial arrangements for his children.

Respondent represented Mark Wrightington, Sr. in a post-divorce modification claim to

2. At all times pertinent to the facts giving rise to the Notice of Charges, the

Avenue, P.O. Box 5, Newport, New Hampshire 03773.

to practice law in New Hampshire since 1977. Her office is located at 34 Belknap

1. Lanea A. Witkus (the"Respondent") is an attorney who has been licensed

Professional Conduct Committee.

Stipulation of Facts, for review and consideration by the New Hampshire Supreme Court

Conduct, and as parties in the above-captioned matter, hereby submit the following

Disciplinary Counsel for the New Hampshire Supreme Court Committee on Professional

NOW COME Lanea A. Witkus, Esquire, and Landya McCafferty, Esquire,

MERR p. 2 IMACK, SS October, 2007

\' p. 3 2

removed the noose from his neck.

d. That one of Mark's relatives prevented Matthew from jumping, and

stairs of the house, saying he wanted to die.

rope noose around his neck and prepared to jump from the unfinished

custody, but at a time when Mark was not present, Matthew wrapped a

c. That during the afternoon of July 1 I, while the children were in Mark's

b. That his custodial rights with the children ended at 5:00 pm on July 11.

through July 11.

a. That he had physical custody of the children on the weekend of July 10

7. Mark Wrightington related the following aIIegations to the Respondent:

children.

July 1 p. 3 2,2004 to discuss modifying the custody arrangement with regards to Mark's

6. The Respondent met with Mark Wrightington at or about 4:00 p.m. on

to represent him in an action to modify custody of the minor children.

5. On or about July 1 p. 3 2,2004, Mark Wrightington contacted the Respondent

giving rise to the Notice of Charges, Matthew was age 10.

Matthew (now age 13) and Aldon (now age 11). At all times pertinent to the events

Wrightington had joint legaI custody of the parties' minor children. Mark (now age 16),

inthe original divorce. Pursuant to the terms of their divorce, the Complainant and Mr.

Sullivan County Superior Court. The Respondent did not represent either of the parties

4. Mr. and Mrs. Wrightington were divorced in p. 3 2000, by order of the p. 4 3

arrested Mark for simple assault on that same evening.

and other witnesses present. As a result of their investigation, the police

allegations. The police then went to Mark's house a1Jd spoke \'lith him

Complainant in her car on the way home and investigating Mark's

Matthew. The·poIice responded to Mark's call by stopping the

suicide, and that the Complainant had left with the children, including.

the Sunapee Police and reported that Matthew had attempted to commit

including Matthew. Mark and his fiance, Deborah Hutchins, telephoned

Complainant, during which the Complainant left With the children,

J. That a physical and verbal altercation ensued between Mark and the

to taking him anywhere else.

wanted, instead, to take him home and consult with his pediatrician prior

I. That the Complainant objected to taking Matthew to the session, and

wanted the Complainant to accompany them.

and told her he wanted to take the child to Dartmouth Hitchcock, and

h. That Mark infonned the Complainant about Matthew's suicide attempt,

pick up the children.

g. That the Complainant arrived at Mark's house at 4:00 pm on July 11 to

Medical Center.

f That an emergency consultation was set up at Dartmouth Hitchcock

arranged.

pediatrician for advice, and was told an immediate consultation should be

e. That another family member present at the home cal1ed a local p. 5 4

District COlLrt."

answered:"Yes. Assault case pending hearing on August 17,200 p. 5 48:30 am at Newport

court cases concerning you and your spouse or the other parent," the Respondent

violence, divorce, legal separation, separate maintenance, domestic relations, or other

the Ex Parte Petition. Under the section asking,"Are there any other pending domestic

10. The Respondent also filed a Personal Data Sheet contemporaneously with '

9. The Ex Parte Petition made no mention of Mark's arrest for assault.

(hereinafter"Ex Parte Petition") in the Sullivan County Superior Court.

Bring Forward and ModifY with Request for Ex Parte Orders and Motion for Contempt,"

with Mark, the Respondent file,d a pleading on an ex parte basis, entitled"Petition to

8., The next afternoon, July 13, less than 2 p. 5 4 hours after the initial consultation

medical needs.

m. That historically, the Complainant had failed to ful1y address Matthew's

attempt.

appear Matthew was going to receive any treatment for his suicide

no referral had been made by the pediatrician's office, and that it did not

had suggested several counselors to the Complainant for Matthew, but that

1. That Mark also learned on July 13, that onJuly 12, Matthew's pediatrician

day before.

had failed to apprise the camp counselors that he had attempted suicide the

k. That the Complainant had taken Matthew to a day camp on July 12, and p. 6 5

provided that"... a trial court may modify a permanent custody order if it 'finds by clear

18. Under then-applicable New Hampshire law, RSA 4 p. 6 58: 17(V)(a)(3)

approximately two weeks after the filing of the Ex Parte Petition.

17. Mark did not formally retain the Respondent on the assault charge until

modification could occur.

records as grounds for the necessity of conducting a hearing before any custody

July 13 order. The order cited to the Complainant's pleadings and attached medical

16. The Court granted the Motion for Reversal on July 14, and reversed the

pertaining to the Complainant's active pursuit of medical treatment for Matthew.

police investigation and arrest of Mark for simple assault, and included medical records

1 p. 6 5. The Motion for Reversal described the July 1 I incident, including the

Immediate Reversal of7/13/04 ex-parte orders" (hereinafter"Motion for Reversal").

14. On July 14, the Complainant filed a pleading entitled"Motion for

when the police removed the children from her custody.

13. The Complainant learned of the order on the evening of July 13, 2004,

nine days later.

decisions for the children. The Court also set a hearing on the matter for July 22, 2004,

Mark physical custody of the minor children and the exclusive right to make medical

P.J.) granted the Ex Parte Petition, which included, among other things, an order granting

12. In an order dated July 13,2004, the Court (per Hon. Arthur D. Brennan,

decisions on behalf of the children.

custody of the three children and, for six months, the exclusive right to make medical

11. The Ex Parte Petition requested, inter alia, that Mark be granted physical p. 7 6

the Ex Parte Petition.

influenced Judge Brennan's decision on the need for the emergency relief requested in

material to ·t.ie issue of immediate care and protection of the children and could have

22. The police investigation and Mark's subsequent arrest for assault were

criminal defendant in the assault case.

the contemporaneously filed Personal Data Sheet, but did not identifY her client as the

, Ex Parte Petition. However, she did disclose the existence of a pending assault action in

incident and the decision to arrest Mark for his alleged assault of the Complainant in the

SpecificalIy, she failed to inform the court about the police investigation of the July 11

Respondent failed to include adverse material facts known to her in that Petition.

21. In filing the Ex Parte Petition on Mark's behalf in this case, the

decision, whether or not the facts are adverse."

material facts known to the lawyer which will enable the tribunal to make an infOlmed

requires that"(i)n an ex parte proceeding, a lawyer shall infonn the tribunal of all

20. New Hampshire Rule of Professional Conduct ("NHRPC") Rule 3.3(d)

19. The allegations set forth above are incorporated by reference.

Rule 3.3(d): Failure to Inform Tribunal of Adverse Material Facts

n. STIPULATION AS TO RULES VIOLATED

707 (2007).

environment'." See RSA 458:17 (V)(a)(3). See also In the Matter ojChoy, 154 N.H.

pennanent custody order outweighs the harm likely to be caused by the change in

physical, mental, or emotional health and that the advantage to the child of modifying a

and convincing evidence that the child's present environment is detrimental to the child's p. 8 7

N.H. at 513:

-the existence of aggravating or mitigating factors." Standards § 3.0; Coffey's Case, 152

mental state; ( c) t.~e potential or actual injury caused by the lawyer's misconduct; mid (d)

for courts to consider in imposing sanctions: "(a) the duty violated; (b) the lawyer's

guidance. Coffey's Case, 152 N.H. at 513. The Standards set forth a four part analysis

2 p. 8 7. Although the Court has not adopted the Standards, it looks to them for

sanction must take into account the severity ofthe misconduct." ld

Eg., Coffey's Case, 152 N.H. 503, 513 (2005) (internal quotation marks omitted)."The

preserve the integrity of the legal profession, and prevent similar conduct in the future."

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

conclusion that the Respondent should be Reprimanded. The purpose of the Court's

Standards for Imposing Lawyer Sanctions (1992) (the"Standards") support the

26. Both case law in New Hampshire and the American Bar Association's

purposes of attorney discipline.

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

25. Disciplinary Counsel and the Respondent jointly recommend a

convincing evidence of a violation ofNHRPC 8.4(a).

24. In light of the Rule 3.3(d) violation, there is necessarily clear and

Rule 8.4(a): General Rule

NHRPC Rule 3.3(d).

facts concerning the Respondent's arrest for simple assault constitutes a violation of

23. The Respondent's failure to adequately inform the tribunal of the material

,\ p. 9 8

investigation and arrest for assault was not purposeful or deliberate. The conclusion from such testimony is that the omission of the police Respondent's focus should have been on the immediate welfare of the child. child, coupled with an apparent failure to obtain treatment for the child, the demonstrating that in cases following a serious suicide attempt by a young I The Respondent intended to offer expert testimony in the disciplinary hearing

Nonetheless, the Respondent was neglectful in not making cleat to the Court in either her

an arrest would have appeared in any of the pleadings, including the Personal Data Sheet.

Court. Had she intended to deliberately conceal the arrest, it is likely that no mention of

purposefully omitted and/or deliberately concealed material from the purview of the

that can best be characterized as neglectful. I This is not a case where a lawyer

did not act with a purposeful or knowing mental state. Rather, her mental state was one

31. With respect to her mental state, the evidence is clear that the Respondent

mind and the injury caused by her misconduct.

30. The Standards next require analysis of both the Respondent's state of

arrest in the Ex Parte Petition and accompanying pleadings.

candor to the Court through her failure to adequately disclose the existence of her client's

29.. Under the first prong of the analysis, the Respondent violated her duty of

aggravating or mitigating factors on the ultimate sanction.").

sanction. Id ("After determining the sanction, [the Court] considers the effect of any

existence of any aggravating or mitigating factors and whether they affect the baseline

determined, the Court then looks to the fourth and fmal step in the analysis: The

misconduct and identify the appropriate sanction"). Once the baseline sanction is

714 (2005) ("In applying these factors, the first step is to categorize the respondent's

misconduct and determining a baseline sanction. See Wolterbeek's Case, 152 N.H. 710,

2 p. 9 8. The fIrst three steps create the framework for characterizing the p. 10 9

influencing the judge, and were therefore material under Rule 3.3(d). underlying legal question is different than what facts were capable of acknowledges, however, that the question of what facts were dispositive on the However, the Court never responds to that statement. The Respondent Complainant had, in fact, sought and obtained medical advice for Matthew. surmises, at one point, that the judge was influenced by the evidence that the Brennan explain why he reversed the Order. Counsel for the Complainant Wrightington's Ex Parte Petition. Nowhere in the transcript does Judge which occurred following Judge Brennan's decision to reverse his Order on Mr. 2 The parties went to the length of obtaining a full transcript of the hearing

sanction that falls between a Public Censure and Reprimand.

35. Pursuant to Standard 6.1, the Respondent's misconduct warrants a

the Court is Standard 6.1.

34. The section of the Standards that deals with a lawyer's duty of candor to

the injury to the integrity of the bar is substantial.

33. However, whenever a lawyer engages in a violation of her duty of candor,

harm to the Complainant.

former. As such, it is difficult to assess whether the Respondent's misconduct caused

controlling legal standard, it is likely that Judge Brennan was more influenced by the

charged with assault as a result of the incident on July 11,2004.2 Based on the

(contrary to Mr. Wrightington's allegations); or (b) Mr. Wrightington stood criminally

(a) the Complainant had sought and obtained medical advice with respect to Matthew

Brennan's decision to reverse the July 13,2004 Ex Parte Order was based on the fact that

actual injury caused by the Respondent's misconduct. Here, it is not clear whether Judge

32. The third prong of the analysis requires consideration of the potential or

her client was actually the subject of the referenced assault case.

Ex Parte Petition or the Personal Data Sheet that accompanied the Ex Parte Petition that p. 11 10

in New Hampshire is a Reprimand. 5 Section 6.14 uses the tenn"Admonition." The most analogous sanction

in New Hampshire is a Public Censure. 4 Section 6.13 uses the tenn"Reprimand." The most analogous sanction

Footnote 1, above. 3 See

a subpoena); Shillen's Case, 149 N.H. 132 (2003) (negligently failing to notice a conflict

O'Meara's Case, 150 N.H. 157 (2003) (actively lying to the Court concerning the date of

Leggett, No. 04-041 (2007) (actively lying to client concerning the status of the case);

higher level of misconduct than negligence alone. See e.g. Daly, John V. advs. John

39. Under New Hampshire case law, public censure has generally followed a

potentially adverse effect on the legal proceeding. actual or potential injury to a party, or causes little or no adverse or infonnation upon learning of its falsity, and ca'!lses little or no statements or documents are false or in failing to disclose material isolated iI.1stance of neglect in determining whether submitted Admonition5 is generally appropriate when a lawyer engages in an

38. Pursuant to Standard 6.14,

on the legal proceeding. legal proceeding, or causes an adverse or potentially adverse effect withheld, and causes injury or potential injury to a party to the in taking remedial action when material infonnation is being either in determining whether statements or documents are false or Reprimand 4 is generally appropriate when a lawyer is negligent

37. Pursuant to Standard 6.13,

or knowing.3 Standards 6.13 and 6.14 are thus more applicable to the Respondent's case..

Respondent's mental state can best be characterized as neglectful, rather than purposeful

and/or knowing intent to deceive is subject to disbarment andlor suspension. Here, the

36. Under Standards 6. II and 6.12, a respondent who acts with a purposeful p. 12 11

the Professional Conduct Committee (resulting in a warning in 2000) - and the facts

9.32(e); and a substantial period of time between,the Respondent's last involvement with

the disciplinary board and displayed a cooperative attitude throughout, see Standard

selfish motive, see Standard 9.32(b); the Respondent made a full and free disclosure to

44. There are four mitigating factors in this case: The Respondent lacked a'

any aggravating and/or mitigating factors that affect the baseline sanction.

43. The fmaI step in the analysis, however, is to determine whether there are

three prongs of the test, the appropriate baseline sanction in this case is a Reprimand.

42. Having characterized the misconduct and analyzed the facts under the first

and the Personal Data Sheet to obtain the emergency order.

she rapidly assembled the necessary pleadings and affidavits, as well as a proposed order

careful as she should have been in clearly disclosing the arrest of her client for assault, as

treatment following not only the threat of suicide, but an actual attempt; and was not as

deeply concerned over the safety and well-being of Matthew, and the apparent lack of

had this matter been fully litigated, the evidence tends to show that the Respondent was

41. Based on the evidence that would have been presented to a hearing panel

harm to a party or to the legal proceeding.

engaged in an isolated act of misrepresentation by omission that caused little discernable

A Reprimand is the more appropriate baseline sanction where the Respondent has

that the Respondent's baseline sanction falls between a Reprimand and Public Censure.

40. It appears, therefore, under the Standards, and New Hampshire case law,

(actively lying to client concerning the status of a case that had not been filed).

of interest and causing injury to the client); and Welts' Case, 136 N~H. 588 (1993) p. 13 12

StipUlation, above.

in behavior far more egregious than is present here. See cases cited in Section 39 of this

fit to issue a Public Censure for misconduct involving deceit, the respondent has engaged

47. Moreover, in cases in which either the Court or this Committee has seen

disciplinary rules implicated in this matter.

years, and in that time, has incurred only a Warning involving conduct unrelated to the

Case, 145 N.H. 62,72(2000). The Respondent has practiced in New Hampshire for 30

aggravating factor. See e.g. In Re Kalil's Case, 146 N.H. 466,467 (2001); and Bruzga's

career prior to the misconduct is considered when taking into account the weight of the

professional conduct violation for the first time in a lengthy career, the length of the legal

46. Furthermore, under New Hampshire case law, where an attorney faces a

Reprimand to a ~ublic Censure.

of such a nature that it should increase the baseline sanction in this matter from a

issue of candor. Because the Warning in that case involved dissimilar conduct, it is not

that matter dealt with an issue under NHRPC Rule 1.9 (Former Clients), rather than an

a Warning dated August 28,2000 (a copy is attached hereto). However, the Warning in

45. There is one aggravating factor. As noted above, the Respondent received

many years of practice.

instance of misconduct. She has not engaged in a pattern of repeated misconduct in her

Welt's Case, 136 N.H. at 592. In this case, the Respondent engaged in an isolated

rather than a repeated pattern of misconduct has been considered a mitigating factor. See

case law, historically the court has found an isolated incidence of unprofessional conduct

giving rise to this complaint. See Standard 9.32 (m). Further, under New Hampshire p. 14 13

stipulated.

the Respondent is nonetheless hereafter bound to the facts and rule violations as

Conduct Committee issues a sanction in this matter with which the Respondent disagrees,

bound to the facts and rule violations as stipulated. In the event that the Professional

50. The Respondent understands that by signing this Stipulation, she is hereby

Conduct Committee in the investigation and prosecution of this matter.

49. The Respondent agrees to pay the expenses incurred by the Professional

the appropriate sanction in this matter is a Reprimand.

appropriate sanctions, as well as the purposes of attorney discipline in New Hampshire,

by the Standards, the case law developed by the New Hampshire Supreme Court on

48. In sum, taking into consideration both the four part analysis recommended p. 15 14

RCVlbg Chair Robert C. Varney

the event iliat additional cliarges of misconduct are brought against you. determining whether to impose discipline and the extent of discipline to be imposed, in issued this. warning may, together with the basis of this warning. be considered in. file relative to this matter. Pursuant to provisions of §1.8 the fact that you have been submit a written response to this letter and such response would be maintained WIth the Professional Conduct Cormmttee (in effect at the time this matter was received), you may Committee. Pursuant to the provisions of § 2.8 of the Rules and Procedures of the The warning contained in this letter does.not constitute discipline by this

Sullivan County Regional Refuse Disposal v. Town of Acworth, 141 N.H. 479 (1996). warns you to be sensItive to the limitations imposed on an attorney by Rule 1.9 and with a finding of no 1?rofessional misconduct on your part. However, the Committee After discussion,. deliberation and due consideration it has dismissed this matter

of the infonnation it has received as to the above entitled matter.. The professional Conduct Committee has recently made a thorough review of all

Dear Ms. Witkus:

Re: Witkus, Lanea A. advs. Professional Conduct Committee - #00-046

Newport, New Hampshire 03773 P.O. Box 5 34 Belknap Avenue I Witkus & Wilson, P.C. Lanea A. Witkus, Esquire

The State of New Hal1!pshire Supreme Court