David A. Young (2006)

raped by [a DSSC patient]. [The patient] pinned [J.L.] to a couch, Shortly after she began her shift, at 5 p.m., [J.L.] was violently

superior court on September 28, 1998, alleging the following: assault. The respondent represented J.L. in her suit, and filed a writ in the sued DSSC and other defendants to recover for injuries resulting from the development:0111y disabled patient physically a.nd sexually assaulted her. She caregiver for DSSC's patients. While J.L. was working that evening at DSSC, a employed by Developmental Services of Sullivan County, Inc. (DSSC) as a The PCC found the following facts. On August 30, 1998, J.L. was

David A. Young, be disbarred. vVe order the respondent disbarred. Conduct Committee (PCC) filed a petition recommending that the respondent, GALWAY, J. On February 14, 2005, the Supreme Court Professional

Daschbach on the brief and orally), for the respondent. Daschbach, Cooper, Hotchkiss & Csatari, P.A., of Lebanon (Joseph F.

professional conduct committee. Landya B. McCaffertv, of Concord, on the brief and orally, for the

No. LD-2006-002 Original

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

respondent failed to supply such documentation. In a letter dated November requested documentation, such as invoices, to support the lien claim, but the pursue a lien in the amount of $45,000 against J.L. Mulligan repeatedly year later, in April p. 2 2001, the respondent informed Mulligan that he intended to counsel and filed a PCC complaint against the respondent. Approximately one respondent. She subsequently hired David Cole and James Mulligan as co­ $45,000 to J.L., she terminated her attorney-client relationship with the At approximately the same time that the respondent disbursed the

Fleet IOLTA account: one for $35,000 and another for $10,000. accounts into his Fleet IOLTA account. He then wrote J.L. two checks from the On April 13, the respondent transferred $30,800 from one of his operating expert witness fees, thus increasing the total money owed to her to $45,000. account and marked the $3,500 as a refund to J.L. for unneeded legal fees and transferred $3,500 from one of his operating accounts to his Fleet IOLTA only $100.94 from March 1 p. 2 2 through March 31. On April 3, the respondent an IOLTA account at Fleet Bank, but this account carried a total balance of $1,975.56 in the Trust Account. The respondent had one ot..h.er t..rust account, Trust Account into two of his operating accounts, leaving a balance of further disbursement to J.L. On that date, he transferred $40,000 from the .......... I.-L lA.~'".... v .... U.~. v...... .......1,\,4,..J .............l.... ~ V..I. ..I.Y.J. ..... .L.J. .1.V, I,...l. ......l. 0.L..I.'I..l ...... .l..Lt.. ..l.La.u ..I.J...I.Gl.u ......l.J.U ;r. tT"T'COT f"n:t'" T T...""" Tar~"arT"'l7 1 Q I1c- n.f1\.Jrar"1--. 1 Q +h= ~eopo"""....:1""...... +'1-. ....-1 ..............-1"" ............ an advance given to J.L. and additional fees, the respondent still held $41,500 settlement" on the check. Considering the $17,300 disbursement, as well as day, the respondent wrote a check to J.L. for $17,300 and wrote"full January 18, the Trust Account received a deposit of $78,000. On that same other clients, leaving less money in the account tha.."f1. vias o\ved to J.L. On the respondent disbursed $54,116.99 from the Trust Account to one of his Of that amount, the defendant held $70,000 in trust for J.L. On January 16, As of January 12, 2000, the Trust Account carried a balance of $70,400.

Savings Bank (Trust Account). and deposited the $70,000 disbursement into a trust account at Claremont $15,000 disbursement into his law office operating account as"fees earned" and a payment of $70,000 on January 11, p. 2 2000. The respondent deposited the respondent in two installments: a payment of $15,000 on December 23, 1999, compensation daim for $85,000. DSSC disbursed the settlement to the whistleblower's daims. In December 1999, DSSC settled the workers' The respondent also represented J.L. in related workers' compensation and

behind her, then by forcing his weight upon her. intercourse with her by twisting her wrist and pinning her arms punched, hit and bit [J.L.], and attempted to have sexual inside [J.L.'s] shorts. He digitally fondled her. [The patient] breast and arms. He pulled his pants down and put his hand and assaulted her by biting, licking and touching her on her face, p. 3 3

it raises is not supported by the evidence. either intentionally or accidentally misleading, but the suggest [sic] I believe that Attorney Young's representation in paragraph 5 is

14 objection were misleading: the trial court found that the respondent's allegations of fraud in the December told her boyfriend or other people about the details of the assault. Accordingly, Gordon. The trial court also found that it was reasonable for J.L. to have not of the assault well before the September 1998 meeting between J.L. and aware of Dow's deposition, he knew that J.L. told Dow about the sexual nature penetrated her vagina. The trial court found that, because the respondent was assault on August p. 3 30, 1998, J.L. told Dow that the patient had digitally assault soon after it occurred, and that, within three days from the time of the litigation against DSSC in which she stated that J.L. generally described the its decision, the court relied in part upon a deposition given by Dow during the (Morrill, J.) allowed for discovery and subsequently denied DSSC's motion. In in superior court to rescind its settlement with J.L. The Superior Court As a result of the respondent's allegations of fraud, DSSC fIled a motion

L.r1..lt..lJ.fL1I. which stated, in part, that the respondent never found that J.L. was not litigation. As part of this settlement, the respondent signed a sworn affidavit, physical abuse." The respondent and J.L. later settled the attorney's lien Gordon), about any instance of sexual abuse by a resident of DSSC, only fiance, Deborah DOVl, a..l1d her therapist (until after her conversation vlith good friend, Heather Bressette, Chris Hohn, her boyfriend and soon to be sexual nature of the assault:"Prior to that meeting, [J.1.] had not told her come to light." Paragraph six implied that Gordon and J.L. fabricated the meeting attended only by [J.L.] and Gordon did the instance of sexual abuse November 21 letter. Paragraph five of the objection stated,"It was only after a on December 14, in which he included allegations similar to those in his determine the nature of the attorney's lien. The respondent fIled an objection In early December 2001, Mulligan fIled a motion in superior court to

working at DSSC. fIled the writ in superior court alleging that J.L. suffered a sexual assault while had met privately in late September 1998, a few days before the respondent with the respondent's former co-counsel, Kenneth Gordon. Gordon and J.L. close to her about"any sexual overtones of the [patient's] attack" until she met supervisor, Deborah Dow, her boyfriend, Chris Hohn, or multiple other people assault that occurred at DSSC. The letter stated that J.L. did not tell her in a fraud." The letter alleged that J.L. had fabricated the sexual nature of the to fIle a lawsuit against J.L. based upon"her knowing and willful participation 21, 2001, addressed to Mulligan, the respondent stated that he also intended p. 4 4

maintain"a ledger or system showing all receipts and disbursements from the required by Conduct Rule 1.15(a)(2), and also requires that the attorney or firm Supreme Court Rule 50(2)(A) requires handling of client funds similar to that

Hampshire Supreme Court Rules .... maintain the minimum financial records specified in the New receipt to the time of final distribution .... The lawyer shall client at any time in the lawyer's possession from the time of maintenance and disposition of all funds and other property of the Records shall be maintained by the lawyer of the handling,

50(2)(F). Conduct Rule 1. 15(a)(2) states, in pertinent part: violation of Conduct Rule 1.15(a)(2) and Supreme Court Rules 50(2)(A) and The second stipulated charge was failure to maintain proper records in

prior to earning those funds and without proper authorization. client. Also, the respondent stipulated to transferring J.L.'s funds to himself J.L. and used that money for his own benefit aIld for the benefit of arlOther stipulated that he withdrew money from the Trust Account that belonged to J.L.'s proceeds from the workers' compensation settlement. He further ...... ~.L""""""..L.J. ........I. .........::>.L............L.L... ,,;;t1,..J.pu.J.Cl. ......... u .LaL.L.L\", VY >:I \,..-.J.';::)..1 L.L.J..l.y uu,L. V L.loU.;::) ... YV w ~81r'MJ:I.rl"'Ph&::>...,..c>c-ponrl.o.""+ c\+~""",,'..... .f..o...-1 th....,+ 1-.0........ a~ ~on~:s.e-tl...'T...... ".f...... f+~'''''+"!"'!:l'l·'h not be withdrawn from the account of the attorney or firm organization until client, shall be deposited in the trust account(s) described above. These shall refundable if not earned, and as to which the attorney has so informed the Supreme Court Rule 50(2)(C) states:"Only those retainer fees, that are

Court Rules. accordance with the provisions of the New Hampshire Supreme deposited in one or more clearly designated trust accounts in held separate from the lawyer's own property. Funds shall be lawyer's possession in connection with a representation shall be Property of clients or third persons which a lawyer is holding in the

Court Rule 50(2)(C). Conduct Rule 1. 15(a)(1) states, in pertinent part: safeguard client property in violation of Conduct Rule 1. 15(a)( 1) and Supreme evidence to support a fourth. The first stipulated charge was failure to three charges, and disciplinary counsel conceded that there was insufficient (Conduct Rules) and the Supreme Court Rules. The respondent stipulated to alleging violations of the New Hampshire Rules of Professional Conduct Discipline Office brought eight disciplinary charges against the respondent, On March 10, 2005, the New Hampshire Supreme Court Attorney

actually believed and knew to be the truth. objection with respect to Deborah Dow misrepresents what he ·.. Attorney Young's representation in paragraph 6 of his p. 5 5

deposition testimony adduced in the DSSC litigation stating that conduct that trial court, the respondent argued, because both were aware of documents and hand up her shorts. This distinction should not have escaped Mulligan or the as the patient pulling his pants down, touching J.L.'s breasts, or putting his not t~ the general sexual nature of the assault as evidenced by conduct such terms in a specific manner. Those phrases referred only to digital penetration, and the objection were not intentionally misleading because he used those that the terms"sexual overtones" and"sexual abuse" that he used in the letter merits of the alleged violations. One of the respondent's main arguments was motion to determine attorney's lien. A hearing panel held a hearing on the J.L, in his November 21 letter and his December 14 objection to Mulligan's 3.3(a)(l) and 3.3(a)(3) based upon the respondent's allegations offraud against The remaining four charges alleged violations of Conduct Rules 8.4(c),

other Conduct Rules, he also violated Rule 8.4(a). violate the Conduct Rules. Because the respondent stipulated to violating 8.4(a) states, in pertinent part, that it is professional misconduct for a lawyer to The third stipulated charge was a violation of Conduct Rule 8.4(a). Rule

campalgn. office during the fall and winter of 1999 to 2000 due to his work on a political amount of money in the Trust Account; and (2) because he was often out of his bookkeeper, Stacia Yonce, presented him with a false statement regarding the mishandling of J.L.'s money occurred for two reasons: (1) because his respondent's argument on appeal, include the respondent's assertion that his proPerly maintain his trust accounting systeTI1. The stipulation, and the account bank statements with his ledger on a monthly basis and failed to The respondent thus stipulated that he failed to properly reconcile his trust thought that he had more money in the Trust Account than he actually did. because he relied upon what he called a"false surplus," meaning that he $40,000 from the Trust Account into two of his operating accounts, he did so The respondent stipulated that, on March 13,2000, when he transferred

all differences between items (b) and (d). accounts as of the reconciliation date; and (e) a detailed listing of between items (al and (b); (d) a listing of all clients' funds in the lawyer or law firm's records; (c) a detailed listing of all differences bank's records; (b) the balance of the account according to the shall disclose (a) the balance of the account according to the the lawyer or law firm on a monthly basis. Such reconciliation Each bank account required by Rule p. 5 50... shall be reconciled by

p. 5 50(2)(F) states, in pertinent part: receipts and the nature of the disbursement ...." Supreme Court Rule trust account or accounts with appropriate entries identifYing the source of the p. 6 6

this court to disbar the respondent. The PCC found that the respondent knew also disagreed with the hearing panel's recommended sanction and petitioned testimony was inadmissible under the deliberative process privilege. The PCC panel's admission of Judge Morrill's testimony, however, concluding that the and agreed with the findings of violations. The PCC disagreed with the hearing In its petition to this court, the PCC reviewed the hearing panel's reporis

respondent still can make positive contributions to the Bar. recommendation of disbarment; however, the hearing panel stated that the hearing panel stated that it would normally agree with disciplinary counsel's panel recommended that the respondent be suspended for two years. The level of something I would report." After the sanctions hearing, the hearing "probably an exaggeration, probably careless, but I didn't find it [to] rise to the misrepresentations made by the respondent in his December 14 objection were the respondent. Judge Morrill subsequently testified that the alleged specific issue of why he did not file a professional conduct complaint against that Judge Morrill could both testify as a character witness and testify to the testifYing as a character witness for the respondent. The hearing panel ruled misled the court, but stated that there was no objection to Judge Morrill objected to Judge Morrill testifYing to the merits of whether the respondent that he intended to call Judge Morrill as a witness. Disciplinary counsel sanctions hearing. At that hearing, the respondent notified the hearing panel After determining the respondent's violations, the hearing panel held a

lawyer shall take reasonable remedial measures." lawyer has offered 11laterial evidence and COllleS to kn.ow of its falsit-y, the that a lawyer shall not"offer evidence that the lawyer knows to be false. If a false statement of material fact or law to a tribunal." Rule 3.3(a)(3) provides 3.3(a)(1) and 3.3(a)(3). Rule 3.3(a)(1) provides that a lawyer shall not"make a material fact in his December 14 objection in violation of Conduct Rules 8.4(c), convincing evidence that the respondent intentionally made false statements of deceit or misrepresentation." The hearing panel also found by clear and misconduct for a lawyer to"engage in conduct involving dishonesty, fraud, violation of Conduct Rule 8.4(c), which provides that it is professional involving misrepresentation and dishonesty in his November 21 letter in clear and convincing evidence that the respondent engaged in conduct Not persuaded by the respondent's argument, the hearing panel found by

have recognized this distinction. aspect of her claim, and the recipients of the letter and the objection should the objection questioned only whether J.L. fabricated the digital penetration respondent argued. Accordingly, the respondent asserted that the letter and mentally handicapped person requires an overt act, such as penetration, the committed by a mentally handicapped person. Intentional sexual conduct by a appears sexual to the average person might not be intentionally sexual if p. 7 7

statements in both the letter and objection were false when he wrote them. after speaking with Gordon. The PCC found that the respondent knew that his J.L. and Gordon; and (2) that J.L. did not tell Dow about the sexual abuse until instance of sexual abuse came to light only after a meeting attended only by the respondent's December 14 objection were false, including: (1) that the after speakit,g with Gordon. The PCC also found that multiple statements in stated that J.L. did not inform Dow of the sexual overtones ofthe attack until The PCC found that in the November 21 letter, the respondent falsely

omitted). appropriate sanction." Wolterbeek's Case, 152 N.H. p. 7 710, 714 (2005) (quotation a violation of the rules governing attorney conduct has occurred and, if so, the record, but retain"ultimate authority to determine whether, on the facts found, discipline matters, we defer to the PCC's factual findings if supported by the by clear and convincing evidence. Sup. Ct. R. 37 A, III(d)(2)(C). In attorney The PCC's findings of violations of the Conduct Rules must be supported

that these statements were misleading. penetration. Accordingly, the respondent argues that the PCC erred in finding meeting with Gordon, he referred only to the overtly sexual act of digital about the"sexual overtones" and"sexual abuse" in the assault until after the that when he stated that J.L. never informed anyone, including Deborah Dow, sexual assault committed by a mentally handicapped person. He contends distinction between a sexual assault committed by an average person and a Neither the letter nor the objection were dishonest, he argues, due to the material fact in violation of Conduct Rules 3.3(a)(1), 3.3(a)(2), and 8.4(c). his December 14 objection did not contain intentionally false statements of misrepresentations or dishonesty in violation of Conduct Rule B.4(c), and that The respondent argues that his November 21 letter did not contain

1. Misrepresentations

appropriate sanction. this court sustains all factual findings made by the PCC, disbarment is not the wrongfully excluded Judge Morrill's testimony. Finally, he argues that, even if opportunity to be heard on that charge. Third, he argues that the PCC rights by adding a charge against him without first giving him notice and an 14 objection. Next, he argues that the hearing panel violated his due process engaged in misrepresentation in his November 21 letter and in his December PCC erred when it found that there was clear and convincing evidence that he . In response to the PCC's petition, the respondent fIrst argues that the

were false when he wrote them. that the facts asserted in his November 21 letter and December 14 objection by clear and convincing evidence that Respondent did

far more serious by the Panel." These statements make clear that the hearing violations for dishonesty, misrepresentation and false statement are viewed as the mismanagement of J.L.'s money, the hearing panel stated,"His other objection. In its sanctions report, after stating the recommended sanctions for p. 8 8A(c)." The hearing panel made a similar fmding regarding the December 14 Jfulles Mulligan, Esquire of November 21,2001.... This is a violation of Rule engage in conduct involving misrepresentation and dishonesty in his letter to "We specifically find - misrepresentations and dishonesty. In its findings, the hearing panel stated, sanctions report that demonstrate its focus upon the respondent's also fails to consider other language in the hearing panel's findings and in its material misrepresentations, most notably in paragraph 3." The respondent remainder of that sentence, which continues by stating,"and it did contain threatening nature of the letter. The respondent fails to quote, however, the support for his argument that the hearing panel improperly focused upon the letter ''was intended by the Respondent to threaten [J.L.]," and cites this as respondent quotes in part the hearing panel's statement that the November 21 consistently focused upon the respondent's misrepresentations. The decision. Our reading of the decision reveals that the hearing panel We disagree with the respondent's interpretation of the hearing panel's

he was denied due process. given no notice that the hearing panel would consider such conduct, and, thus, charge him with threatening a former client, the respondent argues that he was and what sanctions he should receive. Because the notice of charges did not gave improper weight to that finding when determining what rules he violated concern was its finding that he threatened J.L., and that the hearing panel misrepresentation and dishonesty, the respondent argues that the panel's true Although the hearing panel found violations based upon his

II. Due Process

3.3(a)(1), 3.3(a)(3) and p. 8 8.4(c) by clear and convincing evidence. supports the PCC's findings that the respondent violated Conduct Rules statements were false when he wrote them. We conclude that the record objection, which supports the finding that the respondent knew that his the respondent was aware of Dow's testimony when he wrote the letter and the about the digital penetration shortly after the incident. The record is clear that order on DSSC's motion to rescind, Judge Morrill also found that J.L. told Dow early September 1 p. 9 998 that the patient had digitally penetrated J.L. In his digital penetration, the record contains Dow's testimony that J.L. told her in intended terms like"sexual overtones" and"sexual abuse" to refer only to The record supports the PCC's findings. Even if the respondent truly 9

Case, 152 N.H. at 714. The Standards list the following factors for Sanctions (1 p. 9 992) (Standards), we look to them for guidance. Wolterbeek's Although we have not adopted the ABA's Standards for Imposing Lawver

475,477 (1 p. 9 999). largely with reference to the attorney's behavior." Morgan's Case, 143 N.H. number of rules broken or by the particular rules violated, but is determined 160. "The gravity of unprofessional conduct is not determined solely by the misconduct and any mitigating circumstances appearing in the record. Id. at its own facts and circumstances, taking into account the severity of the Case, 152 N.H. 155, 159-60 (2005). We judge each attorney discipline case on of the legal profession, and prevent similar conduct in the future." Richmond's protect the public, maintain public confidence in the bar, preserve the integrity purpose of attorney discipline is not to inflict punishment, but rather"to 714 (quotation omitted). In determining a sanction, we are mindful that the occurred and, if so, the appropriate sanction." Wolterbeek's Case, 152 N.H. at on the facts found, a violation of the rules governing attorney conduct has As stated above, we retain"the ultimate authority to determine whether,

his violations. He suggests that an admonition or reprimand is the appropriate sal1.ction for The respondent argues that disbarment is not the appropriate sanction.

IV. Sanctions

making our final determination of the appropriate sanction. have the entire record before us, we will consider Judge Morrill's testimony in deciding that the PCC improperly excluded Judge Morrill's testimony. As we For the purposes of our sanctions review, we will assume without

evidentiary rulings. and the PCC does not have the authority to reverse the hearing panel's That authority belongs instead to the hearing panel, the respondent argues, is not among the powers granted to the PCC under the Supreme Court Rules. process privilege because the authority to rule on the admissibility of evidence testimony from the sanctions hearing was inadmissible under the deliberative The respondent argues that the PCC erred in ruling that Judge Morrill's

III. Exclusion of Judge Morrill's Testimony

the respondent's due process argument. uncharged conduct of threatening a former client. Thus, we find no basis for panel based neither its findings of violations nor its sanctions upon the p. 10 10

Supreme Court Rules 50(2)(A), 50(2)(C) and 50(2)(F). In the case of multiple Conduct Rules 1.15(a)(l), 1.15(a)(2), 3.3(a)(I), 3.3(a)(3), 8.4(a) and 8.4(c), and aggravating factor. Id. at 717. In the instant case, the respondent has violated received three prior reprimands from the PCC. Multiple offenses are another aggravating factor. Wolterbeek's Case, 152 N.H. at 716. The respondent has sanction. As for ag~avating factors, prior disciplinary offenses constitute an respect to this sanction. The PCC found no mitigating factors related to this We next consider the effect of mitigating or aggravating factors with

case). intentionally misleading a marital master regarding the settlement in a related· See,~, Basbane's Case, 141 N.H. 1,6-7 (1996) (disbarring a lawyer for the sanction of disbarment in this case is in accord with our prior decisions. Case, 143 N.H. 169, 172 (1998) (ellipses and brackets omitted). We note that lie, attorney misconduct involving dishonesty justifies disbarment." Cohen's no single transgression reflects more negatively on the legal profession than a without the concomitant responsibility of truth, candor and honesty. Because have had to state too often,"The privilege of practicing law does not come the type of conduct for which the Standards recommend disbarment. As we statements thus placed J.L.'s $85,000 settlement award at risk, and fall within objection sparked a motion to rescind settlement by the DSSC. The false also caused significant potential injury to his client, as his statements in the not appropriate under the Standards. The respondent's misleading statements the respondent intended to deceive the court in this case; thus, suspension is deceive the court ...." Id. § 6.12. The record supports the PCC's findings that that"[S]uspension is appropriate when a lawyer has not acted with intent to serious injury to a party ...." Standards, supra § 6.11. The Standards state the court, makes a false statement ... and causes serious or potentially "[d]isbarment is generally appropriate when a lawyer, with the intent to deceive Conduct Rules 3.3(a)(1), 3.3(a)(3) and 8.4(c). The Standards state that above, the record supports the PCC's finding that the respondent violated made in the November 21 letter and the December 14 objection. As stated misrepresentations and false statements of material fact that the respondent his intentional misrepresentations. We begin by considering the intentional to safeguard his client's property and maintain proper financial records, and The respondent's misconduct falls into two main categories: his failure

sanction. Richmond's Case, 152 N.H. at 160-61. consider the effect of any aggravating or mitigating factors on the ultimate the appropriate sanction. Wolterbeek's Case, 152 N.H. at 714. We then factors, the first step is to categorize the respondent's misconduct and identify Standards, supra § 3.0; Wolterbeek's Case, 152 N.H. at 714. In applying these misconduct; and (d) the existence of aggravating or mitigating factors. mental state; (c) the actual or potential injury caused by the lawyer's consideration in imposing sanctions: (a) the duty violated; (b) the lawyer's

" p. 11 11

BRODERICK, C.J.