B. Michael Cormier (2008)

File B. Michael Cormier, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

and prosecution of this matter. and 8.4(a) and is hereby reprimanded, and shall pay all costs associated with the investigation said Stipulation are found by clear and convincing evidence. Mr. Cormier violated Rules 3 .4( c) attached hereto and made part thereof. The facts, allegations and Rule violations contained in Process. The Committee voted to adopt the Stipulation dated May 3 and 7, 2008, in its entirety, Disciplinary Counsel's Motion to Consolidate and to Permit Waiver of Hearings Committee On May 20, 2008, the Professional Conduct Committee, upon consideration, granted

Cormier, B. Michael advs. Joseph Bailey # 05-002

Gerald A. Daley' Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney 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'

pending in Rockingham County Superior Court.

behalf of Joseph Bailey (the complainant) in a child custody case then

2. On or about January p. 2 13, 2004, Mr. Cormier filed an appearance on

6 p. 2 199.

Michael Cormier, 86 Summer Street, Haverhill, Massachusetts 0 p. 2 1830-

this proceeding, Mr. Cormier operated his law office as Law Office of B.

Mr. Cormier was admitted to practice in p. 2 1991. At all times material to

p. 2 1. Mr. Cormier is an attorney licensed to practice law in New Hampshire.

I. Stipulation of Facts

referenced case.

Respondent, B. Michael Cormier, hereby submit this Stipulation in the above­

Disciplinary Counsel, Landya B. McCafferty, Disciplinary Counsel, and

the pending motions to modify orders on custody and support, to occur

11. On or about September p. 3 21, 2004, the Court scheduled a final hearing on

year thereafter.

10. Mr. Cormier represented Mr. Bailey in the case for approximately one

case on Mr. Bailey's behalf.

9. On or about January 13, p. 3 2004, Mr. Cormier filed an appearance in the

children.

modify and bring forward, seeking primary physical custody of his

8. While Ms. DeSaulnier was representing Mr. Bailey, he filed a petition to

until January 6, p. 3 2004.

appearance on Mr. Bailey's behalf, and represented him in the matter

7. On or about August 18, p. 3 2003, Paula M. DeSaulnier, Esq., entered an

Modification" of his child support.

6. On or about June p. 3 2, 2003, Mr. Bailey filed a pro se"Motion for

children; Ms. Desharnais had primary physical custody of both children.

(DOB:). They had joint legal custody of the

Desharnais had two minor children: (DOB: and

5. At all times relevant to this attorney discipline case, Mr. Bailey and Ms.

order dated December p. 3 2, 1997.

4. By way of background, Mr. Bailey and Ms. Desharnais were divorced by

Joseph Bailey, docket #9 p. 3 2-M-0389.

p. 4 3. The case was entitled: In the matter of Susan (Bailey) Desharnais and 3

hearing date well in advance of the hearing date.

18. Mr. Cormier maintains that he made Mr. Bailey aware of the December 6

filed his motion to continue.

of his file from Mr. Cormier until November 17,2004, the same day he

forwarded to him the hearing notice, and that he had not received a copy

December 6 hearing date due to the fact that his counsel had not th

17. In that motion, Mr. Bailey argued that he only recently had learned of the

that Motion to Continue.

Continue the December 6, 2004 hearing. Mr. Cormier was not copied on

16. On or about November 17, 2004, Mr. Bailey filed a pro se Motion to

15. On or about November 4,2004, Mr. Bailey filed an appearance pro se.

14. Mr. Cormier did not file a motion to withdraw.

behalf of Joseph Bailey in the above matter."

sentence:"TO THE CLERK: Please WITHDRAW my Appearance on

"Withdrawal of Counsel." The pleading consisted of the following

1 p. 4 3. On or about November 3, 2004, Mr. Cormier filed a pleading entitled,

with Mr. Bailey on the telephone about his desire to withdraw.

a motion to withdraw. At or about that same time, Mr. Cormier spoke

explaining that he no longer wanted to represent him and would be filing

12. On or about October 11, 2004, Mr. Cormier wrote a letter to Mr. Bailey

received a copy of the Court's scheduling order/notice.

on December 6, 200 p. 5 4. Mr. Cormier, as counsel of record for Mr. Bailey, 4

consider whether there was"good cause" for counsel to The court was never asked to conduct a hearing or

that he no longer represented Respondent. notified the clerk's office more than one month after file a motion requesting leave to withdraw but merely September 29,200 p. 5 4. Counsel for Respondent did not 2004 by Pretrial Order issued by the court on This matter was scheduled for hearing on December 6,

may order." good cause shown, and on such terms as the court to permit such withdrawal granted by the court for been assigned for trial or hearing, except upon motion withdraw his appearance in a case after the case has which states"(n)o attorney shall be permitted to having failed to observe the requirement of Rule 15, representation of Respondent on November 5, 200 p. 5 4, Counsel for Respondent filed a withdrawal of his

following decree be entered: appeared pro se, the master recommends that the Petitioner appeared with counsel and Respondent Following a hearing on December 6, 200 p. 5 4 at which

23. The Court Order dated December 16, 200 p. 5 4, states:

his counsel of record, Mr. Cormier.

22. The court continued the hearing because Mr. Bailey appeared without

2l. Ms. Marshall and her client were prepared for the final hearing.

GAL, Nathan Weeks, was present.

Desharnais was present with her counsel, Keri J. Marshall, Esq. The

Superior Court. Mr. Cormier did not appear at the hearing. Ms.

20. On December 6,200 p. 5 4, Mr. Bailey appeared at Rockingham County

Court did not copy Mr. Cormier on the December 3rd Order.

Case will proceed to hearing on December 6,200 p. 5 4 at 9:30 a.m." The

19. In an Order dated December 3,200 p. 5 4, the Court ruled:"PLEASE NOTE: p. 6 5

2004.

27. Mr. Cormier filed his"Withdrawal of Counsel" on or about November 3,

Court in an Order dated September 28,2004.

26. In this case, the December 6,2004, trial date was scheduled by the

for the attorney's services. failure to meet his or her financial obligations to pay cause for withdrawal has been shown is the client's considered by the Court in determining whether good approval by the Court. A factor which may be the reason therefor but shall be effective only upon Any motion to withdraw filed by counsel shall set forth shown, and on such terms as the Court may order. withdrawal granted by the Court for good cause for trial or hearing, except upon motion to permit such appearance in a case after the case has been assigned ... No attorney shall be permitted to withdraw his

2 p. 6 5. Superior Court Rule 15(d) provides:

24. Allegations set forth above are incorporated by reference.

Rule 3.4te): Disobeying Rule of Tribunal

II. Stipulation as to Rules Violated

days. The parties shall exchange proposed exhibits within 30

9:30 AM. This matter is rescheduled to January 12, 200 p. 6 5, at

December 6, 2004 hearing. Guardian ad Litem's fees, incurred in attending the Petitioner's reasonable attorney's fees, as well as the GRANTED, but Attorney Cormier is herewith assessed Accordingly, Respondent's Motion to Continue must be

failed to file the required motions. withdraw, much less to impose any terms, since he p. 7 6

convincing evidence of a violation of N.H. R. Prof. Conduct 3.4(c).

35. Mr. Cormier's conduct as described above constitutes clear and

to comply with Superior Court Rule 15(d).

34. Mr. Cormier's conduct as described herein constitutes a knowing failure

with their attendance at the December p. 7 6 hearing. th

to pay both Ms. Marshall's attorney's fees and the GAL's fees associated

failure to comply with Superior Court Rule 15, and ordered Mr. Cormier

33. In its Order dated December 1 p. 7 6, 2004, the Court noted Mr. Cormier's

for trial.

and over the objection of Ms. Marshall, whose client was fully prepared

32. The Court continued the trial date due to Mr. Cormier's failure to appear

he was still counsel of record for Mr. Bailey.

31. Mr. Cormier failed to attend the December p. 7 6,2004, hearing even though

record for Mr. Bailey.

30. As of the December p. 7 6, 2004, trial date, Mr. Cormier was still counsel of

otherwise ruled on, Mr. Cormier's November 3"Withdrawal of Counsel." rd

29. Prior to the December p. 7 6, 2004, trial, the Court had not granted, or

withdrawal, as required under Superior Court Rule 15(d).

of the Court or articulate any basis for finding"good cause" for

intention to withdraw on the eve of trial. However, it did not seek leave

28. Mr. Cormier's"Withdrawal of Counsel" reflected Mr. Cormier's apparent p. 8 7

N.H. at 513.

aggravating or mitigating factors." Standards § 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

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

into account the severity of the misconduct." Id.

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

prevent similar conduct in the future." g, Coffey's Case, 152 N.H. 503,

confidence in the bar, preserve the integrity of the legal profession, and

the Court's disciplinary power"is to protect the public, maintain public

the conclusion that Mr. Cormier should be reprimanded. The purpose of

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

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

purposes of attorney discipline.

the appropriate sanction in this matter. A reprimand would serve the

3 p. 8 7. Disciplinary Counsel and Mr. Cormier jointly recommend a reprimand as

III. Stipulation as to Sanction

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

violated the above rules, there is necessarily clear and convincing

36. Because there exists clear and convincing evidence that Mr. Cormier

potential injury caused by Mr. Cormier's misconduct.

43. The third prong of the analysis requires consideration of the actual or

client or in any way to undermine the judicial process.

case, but Mr. Cormier did not do so with any intent to cause harm to his

Mr. Cormier failed to follow the proper procedure to withdraw from the

alternative counsel to represent Mr. Bailey at the December 6 hearing.

Cormier understood that Mr. Bailey was in the process of hiring

Cormier's state of mind was negligent rather than purposeful. Mr.

42. The Standards next require analysis of Mr. Cormier's state of mind. Mr.

client and to the profession to follow all rules of the court.

41. Under the first prong of the analysis, Mr. Cormier violated a duty to his

sanction.").

the effect of any aggravating or mitigating factors on the ultimate

sanction. See id. ("After 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 identify the appropriate

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

misconduct and determining a baseline sanction. See Wolterbeek's Case,

40. The first three steps create the framework for characterizing the p. 10 9

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

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

his clean disciplinary record, a reprimand is the appropriate sanction.

50. Weighing the aggravating factor alongside Mr. Cormier's mental state and

prior disciplinary history. ABA Standards p. 10 9.32(a}.

4 p. 10 9. There is also a significant mitigating factor here. Mr. Cormier has no

case.

withdraw from a case in the manner he attempted to do so in Mr. Bailey's

the practice of law and should have known that he could not properly

been a lawyer for over 15 years. Thus, he has substantial experience in

48. There is one aggravating factor present in this case. Mr. Cormier has

sanction.

any aggravating and/ or mitigating factors that affect the baseline

47. The final step in the analysis, however, is to determine whether there are

513.

attorney discipline in New Hampshire. See Coffey's Case, 152 N.H. at

in this case is a reprimand. A reprimand would address all four goals of

46. Having characterized the misconduct, the appropriate baseline sanction

mental state weighs in favor of a minimum sanction.

45. Although the potential harm to Mr. Bailey was significant, Mr. Cormier's

Fortunately for both Mr. Bailey and Mr. Cormier, the Court did not do so.

forced Mr. Bailey to go forward at the hearing without a lawyer.

44. The potential harm to Mr. Bailey was significant. The Court could have p. 11 10

Dated:"Hfil _, 2008 #c<.-.(/-

Dated: ApriI.3, 2008 /~./~ fr'~!

nonetheless hereafter bound to the facts as stipulated.

Violated and! or the Stipulation as to Sanction, Mr. Cormier is

Conduct Committee does not agree with the Stipulation as to Rules

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

53. Mr. Cormier understands that by signing this Stipulation, he is hereby

V. Effect of Stipulation

Conduct Committee in the investigation and prosecution of this matter.

52. Mr. Cormier 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