Kevin P. Chisholm (2008)

Stipulation as to the Rules Violated, including Rule 1.3(a), 104 and 804(a).

convincing evidence, attached hereto and made part hereof. The Committee voted to accept the

Committee Process. The Committee voted to accept the Stipulation as to the Facts, by clear and

The Committee granted Disciplinary Counsel's Motion to Permit Waiver of Hearings

sanction, letter of apology from Mr. Chisholm, and letter of response from Ms. Thibault.

Committee Process, Notice of Charges, Stipulation of facts, rules violated, and proposed

The Committee reviewed the record, including a Motion to Permit Waiver of Hearings

Billings McNamara abstained from the votes. Gretchen Rule Hamel was absent.

Richard H. Darling, James R. Martin (via telephone conference), and David N. Page. Marilyn

Vice Chair, Toni M. Gray, Vice Chair, David N. Cole, Alan J. Cronheim, Gerald A. Daley,

captioned matter. Members present included Margaret H. Nelson, Chair, Benette Pizzimenti,

On August 19, 2008, the Professional Conduct Committee deliberated the above-

Gerald A. Daley' Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney member Thomas P. Connair David N. Page' David N. Cole Marilyn Billings McNamara 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'

Kevin P. Chisholm, Esquire Landya B. McCafferty, Disciplinary Counsel Dist.ribution:

all expenses associated with the investigation and prosecution of this matter.

Diligence, § 4.43. Mr. Chisholm is ordered to reimburse the Professional Conduct Committee for

Public Censure, consistent with American Bar Association Standards Section 4.4: Lack of

mitigating factors outweighed the aggravating factors. Therefore, the Committee voted to issue a

granddaughter. There was actual injury to the Complainant. The Committee did not find that the

emotionally-charged nature of Ms. Thibault's legal claim, and her desire to have contact with her

The Committee considered the Stipulation as to sanction. Ms. Chisholm was aware of the p. 3 1

M-843). granting primary physical custody of Mikaela to her mother. Ms.

Court in the matter of Jessica Harasko and Jonathan Leach (docket #03-

(d.o.b. 9/6/02) received an Order from Merrimack County Superior

2. On or about January 27. 2004. the parents of Mikaela Marie Harasko

Hampshire 0330 p. 3 1.

Office. P.C. and Family Legal Services. p. 3 141 Airport Road. Concord. New

material to this proceeding. Mr. Chisholm worked for the Runge Law

Mr. Chisholm was admitted to practice on October 30, p. 3 1995. At all times

p. 3 1. Mr. Chisholm is an attorney licensed to practice law in New Hampshire.

I. Stipulation of Facts

Chisholm. hereby submit this Stipulation in the above-referenced case.

Disciplinary Counsel. Landya B. McCafferty and Respondent, Kevin P.

and would notifY her upon receipt of the orders of notice.

informed Ms. Rock that he was filing a petition for grandparent's rights

10. In a letter to Ms. Rock dated September p. 4 20, 2006, Mr. Chisholm

with a data sheet and a $7 p. 4 2.00 filing fee.

"Petition to Bring Forward and Modity for Grandparent's Rights," along

9. On or about September p. 4 20, 2006, Mr. Chisholm filed a pleading entitled,

represent her in an action to establish grandparent visitation rights.

8. In or about September p. 4 2006, Ms. Thibault retained Mr. Chisholm to

having any contact with Mikaela.

7. In or about August p. 4 2006, Ms. Harasko prohibited Ms. Thibault from

Suzanne L. Rock. Esq. represented Ms. Harasko.

visitation agreement, Mr: Chisholm represented Ms. Thibault and

6. During the informal negotiations thatled to the one-day per month

one Saturday of eve!'] month.

with Ms. Harasko, Ms. Thibault was given physical custody of Mikaela on

5. Following issuance of the custodial Order and by informal agreement

Mikaela's paternal grandmother.

4. Lori A. Thibault, the Complainant in this attorney discipline matter, is

Ms. Harasko.

purposes of this Notice of Charges, however, she will be referred to as

3. At some point. Ms. Harasko changed her name to Ms. Knowlton. For

Harasko.

Harasko, and joint legal custody to both the father, Mr. Leach, and Ms. p. 5 3

Ms. Thibault's numerous inquiries and attempts to speak with him.

attempt to speak with him in person. Mr. Chisholm did not respond to

numerous voicemail messages for him, and visited his office in an

Ms. Thibault telephoned Mr. Chisholm's office at least once per week, left

16. Having heard nothing further from Mr. Chisholm, in May and June 2007,

move things along.

Thibault that he would write a letter to the Court and ask the Court to

2007, Ms. Thibault telephoned him. Mr. Chisholm informed Ms.

15. Having heard nothing further from Mr. Chisholm, in or about March

Ms. Thibault that he had not yet heard anything from the Court but

telephoned Mr. Chisholm to ask for a status update. Mr. Chisholm told

notl:ling further from Mr. Chisholm about the case, Ms. Thibault

14. Mter the passage of approximately two months, and having heard

re-filed, nor did he re-file the pleading.

1 p. 5 3. Mr. Chisholm did not inform Ms. Thibault that the pleading needed to be

intervene" for grandparent's rights.

needed to correct the caption and re-file the pleading as a "petition to

returned the petition to Mr. Chisholm and informed Mr. Chisholm he

12. In a letter to Mr. Chisholm dated September 22, 2006, the clerk's office

four to six weeks before scheduling a hearing.

11. Mr. Chisholm informed Ms. Thibault that it would likely take the Court p. 6 '4

informed regarding the status of her petition to establish grandparent

24. Mr. Chisholm owed Ms. Thibault a duty to keep Ms. Thibault reasonably

evidence of a violation of N.H. R. Prof. Conduct l.3(a).

23. Mr. Chisholm's conduct in this regard constitutes clear and convincing

visitation rights.

appropriate pleadings and pursue litigation to establish her grandparent

22. Mr. Chisholm breached said duty owed to Ms. Thibault by failing to file

pursuit of her case with reasonable promptness and diligence.

Mr. Chisholm owed Ms. Thibault a duty to proceed with the filing and

21. Upon agreeing to pursue Ms. Thibault's grandparent visitation rights,

with Ms. Thibault.

20. At all relevant times, Mr. Chisholm had an attorney-client relationship

Hampshire Rules of Professional Conduct 1.3(a); 1.4; and 8.4(a).

19. Mr. Chisholm's conduct in this case raises questions under the New

II. Stipulation as to Rules Violated

further action with respectto the matter.

18. Because Mr. Chisholm did not re-file the petition, the Court took no

communicate with her.

Attorney DisCipline Office complaining about Mr. Chisholm's failures to

17. On or about July 2, 2007, Ms. Thibault filed a grievance with the p. 7 5

the conclusion that Mr. Chisholm should be reprimanded. The purpose

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

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

purposes of attorney discipline.

as the appropriate sanction in this matter. A reprimand would seNe the

29. Disciplinary Counsel and Mr. Chisholm jointly recommend a reprimand

III. Stipulation as to Sanction

evidence of a violation of N.H. R. Prof. Conduct 8.4(a).

violated t..lJ.e above rules, LlJ.ere is necessarily clear and convincing

28. Because there exists clear and convincing evidence that Mr. Chisholm

evidence of a violation of N.H. R. Prof. Conduct 1.4(a)-(c).

27.

status of her case.

during which time Ms. Thibault was seeking information about the

respond to Ms. Thibault's numerous inquiries in May and June 2007,

26. Mr. Chisholm further breached the foregoing duty by neglecting to

by the clerk of court;

Ms. Thibault of the procedural status of her petition when it was rejected

2 p. 7 5. Mr. Chisholm breached the foregoing duty by failing accurately to inform

requests for information about her case.

visitation rights and to comply promptly with Ms. Thibault's reasonable p. 8 6

sanction.").

the effect of any aggravating or mitigating factors on the ultimate

sanction. See id. ("Mter determining the sanction, [the Court] considers

aggravating or mitigating factors and whether they affect the baseline

looks to the fourth and final step in the analysis: the existence of any

sanction"). Once the baseline sanction is determined, the Court then

categorize the respondent's misconduct and identity the appropriate

152 N.H. 710, 714 (2005) ("In applying these factors, the first step is to

misconduct and deteJ:TI1Jning a baseline sanction. See WoIterbeek's Case,

32. The first three steps create the framework for characterizing the

N.H. at 513.

aggravating or mitigating factors." St"T1d"rrls § 3.0; Coffey's Case, 152

injury caused by the lawyer's misconduct; and (d) the existence of

duty violated; (b) the lawyer's mental state; (c) the potential or actual

four part analysis for courts to consider in imposing sanctions:"(a) the

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

3l. Although the Court has not adopted the Standards, it looks to them for

take into account the severity of the misconduct." Id.

503, 513 (2005) (internal quotation marks omitted)."The sanction must

and prevent similar conduct in the future." M, Coffey's Case, 152 N.H.

public confidence in the bar, preserve the integrity of the legal profession, p. 9 7

communicate effectively is Section 4.4:

the Standards that deals with a lawyer's failure to act diligently and to

the language of the applicable section of the Standards. The section of

3 p. 9 7. Further guidance in determining the baseline sanction can be found in

Chisholm's mlsconduct.

profession has thereby suffered harm to its reputation from Mr.

Chisholm, Ms. Thibault has lost faith in the legal system. The legal

recompensed. Not surprisingly, as a result of her experience with Mr.

with her granddaughter, a harm that is not quantifiable and cannot be

failure to pursue her case, Ms. Thibault has lost valuable custodial time

extreme importance to Ms. Thibault. As a result of Mr. Chisholm's

Chisholm to help her gain custody of her granddaughter, a matter of

with Ms. Thibault caused her real harm. Ms. Thibault relied upon Mr.

concedes that his failure to act diligently and to communicate effectively

36. With respect to the injury caused by his misconduct, Mr. Chisholm

acted knowingly in failing to comply with his duties to Ms. Thibault.

35. With respect to Mr. Chisholm's mental state, the evidence is clear that he

misconduct.

of both Mr. Chisholm's state of mind and the injury caused by his/her

34. To determine the baseline sanction, the Standards next require analysis

with his client.

fundamental obligations to act diligently and communicate effectively

33. Under the first prong of the analysis, Mr. Chisholm violated his p. 10 8

Hrulipshire is a Repru'TIfuJ.d. 2 Section 4.43 uses the term"Admonition." The most analogous sanction in New Hampshire is a Public Censure. 1 Section 4.43 uses the term"Reprimand.' The most analogous sanction in New

amount of injury caused by the misconduct.

between a reprimand and a public censure under Standard 4.4 is the

case appears to be public censure. One of the central differences

first three prongs of the test, the appropriate baseline sanction in this

3 p. 10 8. Having characterized the misconduct and analyzed the facts under the

potential injury to a client. representing a client, and causes little or no actual or negligent and does not act with reasonable diligence in 4.44 Admonition 2 is generally appropriate when a lawyer is

a client. representing a client, and causes injury or potential injury to negligent and does not act with reasonable diligence in 4.43 Reprimand] is generaily appropriate when a lawyer is

injury or potential injury to a client. (b) a lawyer engages in a pattern of neglect and causes

and causes injury or potential injury to a client; or (a) a lawyer knowingly fails to perform services for a client

4.42 Suspension is generally appropriate when:

4.41 Disbarment is generally appropriate when:

Section 4.4: Lack of Diligence. p. 11 9

recommended by the Standards, as well as the purposes of attorney

43. In sum, taking into consideration both the four part analysis

American Bar Association Standards.

goals of attorney discipline in New Hampshire and is consistent with the

properly be reduced to a reprimand. A reprimand would address the

42. As a result of the mitigating factors, the baseline sanction should

from Mr. Chisholm to Ms. Thibault).

p. 11 9.4(1). See Exhibit 1 (a copy of a letter of apology dated July 21,2008

misconduct and for the harm he has caused Ms. Thibault. See Standard

most important, Mr. Chisholm has experienced genuine remorse for his

a dishonest and selfish motive. See Standard p. 11 9.3(b). Third, and perhaps

disciplinary history. See Standards p. 11 9.3(a). Second, Mr. Chisholm lacked

compelling mitigatLl1g factors. First. Mr. Chisholm has no prior

41. There are no aggravating factors in this case. There are, however, several

sanction.

any aggravating and/or mitigating factors that affect the baseline

40. The fmal step in the analysis, however, is to determine whether there are

a more appropriate baseline sanction.

to have contact with her granddaughter. As a result, a public censure is

emotionally-charged nature of Ms. Thibault's legal claim, and her desire

foreseeable to Mr. Chisholm. That is, Mr. Chisholm was aware of the

3 p. 11 9. In this case, the injury to Ms. Thibault was substantial and it was p. 12 10

nonetheless hereafter bound to the facts as stipulated.

Violated andior the Stipulation as to Sanction, the Respondent is

Conduct Committee does not agree with the Stipulation as to Rules

bound to the facts as stipulated. In the event that the Professional

45. Respondent understands that by signing this Stipulation, he is hereby

V. Effect of Stipulation

Conduct Committee in the investigation and prosecution of this matter.

44. Mr. Chisholm agrees to pay the expenses incurred by the Professional

IV. Stipulation as to Costs

reprimand.

discipline in New Hampshire, the appropriate sanction in this matter is a