Grenville Clark III (2008)

Daley were recused from the matter; Committee members Toni M. Gray, Vice Chair, Thomas P.

Pizzimenti, Committee Vice Chair, presided; Committee members David N. Page and Gerald A.

participate in the discussion or vote. For the oral argument and final deliberations, Benette

N. Cole participated by telephone; and Committee member Gerald A Daley was absent and did not

R. Martin, Gretchen Rule Hamel, and James J. Tenn, Jr., were present; Committee member David

Chair, Toni M. Gray, Vice Chair, Thomas P. Connair, Alan 1. Cronheim, Richard H. Darling, James

member David N. Page was recused from the matter; Committee members Benette Pizzimenti, Vice

For the initial deliberations, Margaret H. Nelson, Committee Chair, presided; Committee

same meeting.

Committee scheduled (and heard) oral argument on November 20,2007, and deliberated later in the

Epaminondas Tingas # 03-062. Due to Mr. Clark's failure to respond to a written inquiry, the

whether he had met the conditions specified in a prior matter, Clark, Grenville III advs.

September 18,2007, but deferred final deliberations pending an update from Mr. Clark regarding

and sanction. The Professional Conduct Committee ("Committee") first considered this matter on

Prior to a hearing, Mr. Clark and Disciplinary Counsel executed a stipulation as to facts, rules, costs,

This matter arose from a complaint filed by Ms. Lisa M. Cassidy against Grenville Clark III.

Gerald A. Daley* Holly B. Fazzino, Admin. Coordinator Alan 1. Cronheim * non attorney member Thomas P. Connair James 1. 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*

. 6. Over time, Ms. Cassidy became dissatisfied with what she viewed as Mr. Clark's failures

to assist her in getting the student loan obligation discharged through bankruptcy .

5. At some point thereafter, Ms. Cassidy apparently came to believe that Mr. Clark was going

4. On January 13,2004, Ms. Cassidy met with Mr. Clark and paid him a retainer 0[$750.00.

discharge of the obligation in bankruptcy.

through bankruptcy. At that time, she had not decided on whether she wanted to seek a

obligation. One of the options discussed was to obtain a discharge of her loan obligation

discuss her financial situation, and in particular, her option for dealing with her student loan

student loan obligation. She first met with Mr. Clark at his office in November 2002 to

3. Ms. Cassidy first contacted Mr. Clark's office by telephone on May 15, 2002 about her

representation and advice with respect to a student loan obligation.

2. Lisa M. Cassidy, the Complainant in this matter, hired Mr. Clark to provide legal

office as Gray, Wendell & Clark, P.C., 650 Elm Street, Manchester, New Hampshire 03101.

to practice in 1971. At all times material to this proceeding, Mr. Clark operated his law

1. Mr. Clark is an attorney licensed to practice law in New Hampshire. Mr. Clark was admitted

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 participate in the discussion or vote.

J. Tenn, Jr. were present; and Committee members Margaret H. Nelson and David N. Cole were

Connair, Alan 1. Cronheim, Richard H. Darling, James R. Martin, Gretchen Rule Hamel, and James p. 3 Page 3 of8

but, instead, he returned her entire retainer.

15. Mr. Clark contended that he could have billed Ms. Cassidy for $490.00 worth oflegal work,

14. On that same date, Mr. Clark wrote a $750.00 check to Ms. Cassidy.

complaint.

13. In a letter to Mr. DeHart dated February 2, 2006, Mr. Clark responded to Ms. Cassidy's

docketing a complaint against him on the basis of Ms. Cassidy's grievance.

Attorney Discipline Office, informed Mr. Clark that the Attorney Discipline Office was

12. In a letter to Mr. Clark dated December 27,2005, James L. DeHart, General Counsel of the

return her money.

complained about Mr. Clark's failures to respond to her October 25, 2005, letter and to

11. In a letter to the Attorney Discipline Office dated December 23,2005, Ms. Cassidy

10. As of December 23,2005, Ms. Cassidy still had heard no response from Mr. Clark.

Clark had received her letter and would get in touch with her.

9. Ms. Cassidy telephoned Mr. Clark's office and Mr. Clark's secretary confirmed that Mr.

of October 25,2005.

8. Ms. Cassidy received the return receipt documenting that Mr. Clark had received her letter

demanded that he return her"retainer of$750 within 2 weeks."

return receipt requested, Ms. Cassidy expressed her dissatisfaction with Mr. Clark and

7. In a letter to Mr. Clark dated October 25,2005, which Ms. Cassidy sent via certified mail,

both to communicate with her, and to take action on her behalf. p. 4 Page 4 of8

8.4(a).

there is necessarily clear and convincing evidence of a violation ofN.H. R. Prof. Conduct

23. Because there exists clear and convincing evidence that Mr. Clark violated the above rules,

N.H. R. Prof. Conduct 1.ISCb).

22. Mr. Clark's conduct in this regard constitutes clear and convincing evidence of a violation of

which she was entitled to receive.

any justification constitutes a knowing failure to promptly deliver to Ms. Cassidy funds

21. Mr. Clark's conduct in holding any amount of Ms. Cassidy's funds for three months without

still holding $260.00 of Ms. Cassidy's funds without any justification.

20. Even if Mr. Clark was arguably entitled to $490.00 of Ms. Cassidy's retainer, Mr. Clark was

19. Mr. Clark held Ms. Cassidy's funds without justification for approximately three months.

complaint against him. Mr. Clark refunded her money on or about February 2, 2006.

18. Mr. Clark did not respond to Ms. Cassidy's letter until after she filed a professional conduct

requested that Mr. Clark return the funds"within 2 weeks."

Cassidy was requesting the return of her $7S0.00 retainer. In her letter, Ms. Cassidy

17. As of his receipt of Ms. Cassidy's October 2S, 200S, letter, Mr. Clark was aware that Ms.

16. Allegations set forth above are incorporated by reference.

the Stipulation, as follows:

The Committee found, by clear and convincing evidence, the Rules violations as agreed to in

II. RULINGS OF LAW p. 5 Page 5 of 8

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

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

Once the baseline sanction is determined, the Court then looks to the fourth and final step in the

the first step is to categorize the respondent's misconduct and identifY the appropriate sanction").

a baseline sanction. See Wolterbeek's Case, 152 N.H. 710, 714 (2005) ("In applying these factors,

The first three steps create the framework for characterizing the misconduct and determining

factors." Standards § 3.0; Coffey's Case, 152 N.I-I. at 513.

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

imposing sanctions:"(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual

Case, 152 N.H. at 513. The Standards set forth a four part analysis for courts to consider in

Although the Court has not adopted the Standards, it looks to them for guidance. Coffey's

omitted)."The sanction must take into account the severity of the misconduct." Id.

conduct in the future."~, Coffev's Case, 152 N.H. 503, 513 (2005) (internal quotation marks

public confidence in the bar, preserve the integrity of the legal profession, and prevent similar

publicly censured. The purpose of the Court's disciplinary power"is to protect the public, maintain

Imposing Lawyer Sanctions (1992) ("Standards") support the conclusion that Mr. Clark should be

Both case law in New Hampshire and the American Bar Association's Standards for

this condition, he would be suspended from the practice of law for six months.

same, on or before a date specified by the Committee, on condition that if Mr. Clark does not fulfill

Multi-State Professional Responsibility Exam (MPRE), and show proof to Disciplinary Counsel of

condition, as the appropriate sanction in this matter. Specifically, Mr. Clark would take and pass the

Disciplinary Counsel and Mr. Clark jointly recommended a Public Censure, with one

III. DISCUSSION OF APPROPRIATE SANCTION p. 6 Page 6 of8 injury to a client. appropriate when a lawyer is negligent in dealing with client propeliy and causes little or no actual or potential client. Section 4: 14: Admonition [construed as Reprimand under N.H. Sup. Ct. R. 37(2)(i)] is generally appropriate when a lav,yer is negligent in dealing with client property and causes injury or potential injury to a 1 Section 4.13: Reprimand [construed asPublic Censure under N.H. Sup. Ct. R. 37(2)(g)] is generally

Mr. Clark retained Ms. Cassidy's funds for a short time-period, the actual injury Ms. Cassidy

such as those presented here, fails to remit client funds within a three-month time-frame. Because

Negligence properly characterizes the behavior of an attorney who, under circumstances

little or no actual or potential injury to a client." Standards §4.14.

Reprimand is recommended"when a lawyer is negligent in dealing with client property and causes

dealing with client property and causes injury or potential injury to a client." Standards §4.13. A

to remit client funds promptly." A Public Censure! is recommended a"when a lawyer is negligent in

conversion. The most common involve lawyers who commingle client funds with their own, or fail

reserved for lawyers who engage in misconduct that does not amount to misappropriation or

"dealing improperly with client money." See Standards §4.12 (Commentary)"Suspension should be

The commentary to this section indicates that failing to promptly return funds to a client constitutes

improperly with client property and causes i njUly or potential injury to a client." Standards §4.12.

A suspension is recommended where"a lawyer knows or should know that he is dealing

clearly not applicable here.

client property and causes injury or potential injury to a client." Standards § 4.11. This standard is

section indicates that"[d]isbarment is generally appropriate when a lawyer knowingly converts

mishandling of client funds is §4.11, entitled"Failure to Preserve the Client's Property." That

promptly all funds belonging to her. The section of the Standards that deals with a lawyer's

Under the first prong of the analysis, Mr. Clark violated his duty to his client to return

aggravating or mitigating factors on the ultimate sanction."). p. 7 Page 7 of8

proceedings. Standards §§9.32(e).

§9.32(b), and a full and free disclosure to the disciplinary board and cooperative attitude toward

The mitigating factors in this case are the absence of a dishonest or selfish motive, Standards

considered in considering an increase in the baseline sanction. See Standards §9.22(i).

Mr. Clark has significant experience in the law (36 years), another aggravating factor to be

violated Rule 1.15, he does have a history of failing to communicate and act diligently. In addition,

Clark's prior history is over 12 years old. While Mr. Clark does not have a record of having ever

two Public Censures on his record. With the exception of a 2003 Public Censure, however, Mr.

Clark's prior disciplinary history. See Standards §9.22(a). Mr. Clark has three prior Reprimands and

There are two aggravating factors in this case. The more significant aggravating factor is Mr.

mitigating factors that affect the baseline sanction.

The final step in the analysis is to determine whether there are any aggravating and/or

whenever an attorney is not fastidious in his or her ethical obligations toward client funds.

months of access to money that was rightfully hers. There also is harm to the reputation of the bar

by Mr. Clark's misconduct. Here, Ms. Cassidy was injured because Mr. Clark deprived her for three

The third prong of the analysis requires consideration of the potential or actual injury caused

belonging to Ms. Cassidy.

is clear that as of Ms. Cassidy's October 25,2005, letter, Mr. Clark knowingly retained funds

The Standards next require analysis of Mr. Clark's state of mind. In this regard, the evidence

baseline sanction falls between a Reprimand and a Public Censure.

suffered was minimized. It appears, therefore, that under the first prong of the test, Mr. Clark's p. 8 Page 8 of8

File Grenville Clark III, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

January 31,2008 ~g I\-e fie:- fJj ~ IU n h

the investigation and prosecution of this matter.

(3) Mr. Clark shall pay the expenses incurred by the Professional Conduct Committee in

ADO on a quarterly basis for one year from the date of the recommendations, and

recommended improvements are to be implemented; and (c) to report on Mr. Clark's progress to the

this order, for improvements to Mr. Clark's office practices, with a schedule on which the

Clark's law office practices, including calendaring; (b) make recommendations, within 90 days of

days of this order and at his own expense, a consultant in law office management to (a) evaluate Mr.

(2) Subject to the approval and oversight of the ADO, Mr. Clark shall hire, within 45

the matter shall be referred back to the Committee for further proceedings;

the results to the Attorney Discipline Office (ADO). If Mr. Clark is unable to pass the examination,

(1) Mr. Clark shall take the MPRE within one year of the date ofthis decision and report

The Committee thus hereby issues a Public Censure, with the following conditions:

management, with an emphasis on communications.

Multi-state Professional Responsibility Exam (MPRE), Mr. Clark should obtain assistance in office

expended on this matter. As a result, the Committee has concluded that in addition to taking the

obligations under the 2003 Public Censure, which directly caused additional resources to be

is troubled by his failure to respond to the Committee's written inquiry regarding the status of his

The Committee appreciates Mr. Clark's cooperation in this matter. However, the Committee