David C. Engel (2005)

including the complainant, Barbara A. Hill. 3. On June 9,2000, Mr. Engel met with seven ofMr. White's eight surviving children,

2. On June 1,2000, Mr. White died.

Mr. White appointed Mr. Engel as executor. signed his"Last Will and Testament," which Mr. Engel had drafted for him. In his Will, 1. On October 28,1997, Mr. Engel represented Roy C. White. On that date, Mr. White

factual findings ofthe hearing panel by clear and convincing evidence: The Professional Conduct Committee has determined that the Record supports the following Factnal Findings:

Conduct Committee made the following factual findings as detailed below: Oral argument was not requested. Having reviewed the Record listed above, the Professional

Hearing Panel Report 2005, Letter as Exhibit Motion to Reopen Record for Limited Purpose of Submitting Complainant's May 1, Transcript of May 3,2005 Hearing Report of Pre-hearing Conference Notice of Hearing Proposed Findings of Fact, Rulings of Law and Recommended Sanction Notice of Charges The Professional Conduct Committee thoroughly reviewed the Record in this matter, including:

David Cole and Richard McNamara did not participate. Stepanek, Reporter; Nancy Hacking; Gretchen Rule Hamel and David Page. James Martin, Members present included: Margaret H. Nelson, Chair; Benette Pizzimenti, Vice Chair; Stephen On July 19, 2005, the Professional Conduct Committee deliberated the above-referenced matter.

knowing what Mrs. Hill is referring to in paragraph 14. $15.00 monthly charge being imposed. This office is at a loss in name of the Estate with a sum of$I,444.85 on which there is a \Vit.lt reference to paragraph 14, L1.ere is no ba.t"'1k aCCOuilt hi 1.t1e allegation about the Estate Account, Mr. Engel wrote: responded to Ms. Hill's Professional Conduct Committee complaint. With respect to her

1 p. 2 2. In a letter to the Professional Conduct Committee dated April 26, 2002, Mr. Engel

approximately $1,416.91. Account was still open as of the date of her letter, and it contained a balance of II. According to the Estate Account bank statements, Ms. Hill was correct. The Estate

another type of account to avoid this fee. This account, if it's necessary to maintain, should be converted to There is a $15.00 a month charge being imposed on Ll-Jis account. of the proceeds have been distributed and this amount remains. What happens to the $1444.85 in the bank account now. Our share

10. In paragraph fourteen of Ms. Hill's letter, she wrote:

Ms. Hill asserted allegations of professional misconduct against Mr. Engel. 9. In a letter of complaint to the Professional Conduct Committee dated January p. 2 2, 2002,

disbursed all remaining funds to which the beneficiaries were entitled. 8. Within thirty days after Mr. Engel filed the Final Accounting, Mr. Engel should have

p. 2 2001, Judge Cassevechia approved the Final Accounting. 7. On July 10,2001, Mr. Engel filed the Final Accounting for the Estate. On September 10,

account number: 9 p. 2 24-0196439. Account"). The Estate Account was a checking account identified by the following "Estate of Roy 1. White" bank account at the Bank of New Hampshire ("Estate 6. According to Mr. Engel's records, on or about February 12, 2001, Mr. Engel opened the

"client" for purposes of this Notice of Charges was the Estate. the personal representative of the Estate. In a more practical sense, however, Mr. Engel's Mr. Engel's"client" for purposes of this Notice of Charges was technically, Mr. Engel, as fiduciary and counsel to the fiduciary. In Mr. Engel's capacity as counsel to the fiduciary, 5. Throughout the pendency of Mr. White's probate matter, Mr. Engel served as both

Estate. for Estate Administration, thereby appointing Mr. Engel as executor of Mr. White's 4. On June p. 2 28,2000, the Rockingham County Probate Court granted Mr. Engel's Petition p. 3 3

late father's will. White Estate Trust funds undistributed to each of you, as heirs under Mr. Engel's This office was also concerned with the whereabouts of the balance of the Roy L.

21. Mr. Engel's letter dated February 21, 200 p. 3 3, contained the following explanation:

Committee. Account. Mr. Engel forwarded a copy of this letter to the Professional Conduct represented the reimbursement due each beneficiary for past service charges on the Estate Mr. Engel's trust account. The other check was written on Mr. Engel's office account and each beneficiary. One of the checks represented the amount due each beneficiary from admitting, for the first time, Mr. Engel's accounting mistakes and enclosing two checks to 20. On February 21, 200 p. 3 3, Mr. Engel wrote a letter to each beneficiary of the Estate

had decided to place the undistributed funds into Mr. Engel's trust account. Professional Conduct Committee that Mr. Engel had both located the Estate Account and 19. From May p. 3 31,2002 through February 21, 2003, Mr. Engel did not inform Ms. Hill or the

money remained in Mr. Engel's firm's client trust account. 18. For almost nine months thereafter (from May p. 3 31, 2002, through February 21,2003), that

Mr. Engel's firm's client trust account. date, Mr. Engel closed the Estate Account and directed that the money be transferred into 17. As of May p. 3 31, 2002, Mr. Engel was aware of the existence of the Estate Account. On that

firm's general trust account. that date, the Bank of New Hampshire issued a check for that amount to Mr. Engel's financial instrument ("checking closeout debit") formally closing the Estate Account. On On that date, the Estate Account had a balance of $1,185. p. 3 31, and Mr. Engel signed the 16. According to Mr. Engel's records, Mr. Engel closed the Estate Account on May 31,2002.

Estate Account. records, the Bank of New Hampshire continued to send Mr. Engel bank statements for the Committee in May 2002, the Estate Account was still open and, according to Mr. Engel's 15. However, at the time Mr. Engel wrote these two letters to the Professional Conduct

letter. reaffirmed the status of the Estate Account as stated in Mr. Engel's original April 26th 2 p. 3 3, 2002, Mr. Engel did not mention the Estate Account issue. Mr. Engel simply 14. In two subsequent letters to the Professional Conduct Committee dated May 20 and May

with a balance of$I,18 p. 4 4.99. bank statements show that the Estate Account was still open under Mr. Engel's name 1 p. 3 3. However, as of the date of Mr. Engel's Professional Conduct Committee response, the 4 regard to the Estate of Roy White. Between April 26, 2002 and May 31, 2002 the letter dated April 26, 2002 I was unaware of any bank account still existing with bank account had been misfiled in another estate file. At the time that I wrote the In the interim, the office has gone through all dead estate files to see if the estate

Ivfr. Engel's accolL.'1ting errors: 22. In a letter to the Attorney Discipline Office dated January 10, 2005, Mr. Engel explained

If you have any questions, please do not hesitate to contact me.

funds in these cases have not been disbursed yet. concerned matters still pending in this office and therefore the trust internal audit other trust funds were found. The other cases You may be interested in knowing that during the course of the

distribution of the remaining funds in the trust. This office sincerely apologizes for the confusion and delay in

charges from October 2001 through June 2002. the amount of $25.2 p. 4 4 representing one-eighth of the bank service representing one-eighth of the trust balance and an office check in checks, one from the trust account in the amount of $148 .17, those service charges. Therefore, each of you is receiving two As a result, this office is reimbursing each of you one-eighth of

expense. Needless to say, these service charges are not a proper estate $1,185.31, as is indicated on the bank statements enclosed. through June 19, 2002 were deducted leaving a balance of the account at the rate of$15.00 per month from October 20,2001 Sherman White leaving a balance of$I,38 p. 4 4.85. Service charges on attorney fees to Texas counsel for a draft of the Fiduciary Deed to $1,459.85. The sum of $75.00 was paid from this account for account according to the November 2001 bank statement is Probate Court effective October 11, 2001 the balance in the trust The Roy L. White Estate was closed by the Rockingham County

locating the sum of $1,185.31 in the office trust account. by this law firm's CPA. An internal audit was performed which resulted in we let our previous bookkeeper go and hired another bookkeeper recommended As a result, of the apparent errors, which our bookkeeper could not account for,

trust account than appeared on their billing statements from this office. In addition, several other clients complained that there was more money in our p. 5 5

existence of such an account. knowledge of an open bank account in the name of the Estate. Mr. Engel denied the 6. In Mr. Engel's original reply letter dated April 26, 2002, Mr. Engel claimed to have no

Committee Record Rule 3.3(a)(3): Failure to Take Reasonable Remedial Measures to Correct Professional Conduct

evidence ofa violation of N.H. R. Prof. Conduct 1.1 p. 5 5(2)(b). 5. Mr. Engel's failure to promptly deliver this money constitutes clear and convincing

Will. could be distributed to the beneficiaries in accordance with the terms of Mr. White's money to his client (Mr. Engel, as personal representative of the Estate) so that the money of the Estate in Mr. Engel's trust account. Mr. Engel failed to promptly deliver this 4. From May 31, 2002, through February 21, 2003, Mr. Engel retained undistributed funds

Rule 1.1 p. 5 5(2)(b): Failure to Promptly Deliver Funds

Prof. Conduct 1.3. constitutes clear and convincing evidence of a lack of diligence in violation of N.H. R. 3. Mr. Engel's conduct with respect to the undistributed funds in the Estate Account

name; it remained open for another five months. of Ms. Hill's allegation. As of that date, the Estate Account was still open in Mr. Engel's Professional Conduct Committee complaint, Mr. Engel would have discovered the truth Mr. Engel's Estate Account bank statements) on January 2,2001, the date of Ms. Hill's 2. By way of example, had Mr. Engel simply reviewed his file (which should have included

a lack of diligence with respect to Mr. Engel's obligations to the Estate. and Mr. Engel's failure to properly account for the undistributed funds therein constitutes 1. Mr. Engel's lack of attention to details with respect to the closing of the Estate Account

Rule 1.3: Lack of Diligence

has violated the following Rules of Professional Conduct: Conduct Committee concludes that there is clear and convincing evidence that David C. Engel The above-listed facts, having been found by clear and convincing evidence, the Professional Rulings of Law:

not think that any such account existed. See copy of check attached hereto. heirs of the Estate of Roy White. At the time of my letter of April 2 p. 6 6, 2002 I did Associates, PA Client Trust Account where they remained until distributed to the missing checkbook was found and the funds were then transferred to the Engel & 6

of N.H. R. Prof Conduct 5.3(a). 1 p. 6 6. 1.1r. Engel's failure in t.~is regard constitutes clear and convincing evidence ofa violation

Professional Conduct. and to ensure that his bookkeeper was acting in compliance with the Rules of 15. Mr. Engel failed to make reasonable efforts to supervise Mr. Engel's then-bookkeeper

trust account. closed Estate Account which were subsequently transferred into Mr. Engel's fIrm's client existence of the open Estate Account, as well as (b) the undistributed frmds from the accounting and record-keeping mistakes that caused Mr. Engel to lose track of (a) the 14. According to Mr. Engel's letter dated Februarj 21,2003, his then-bookkeeper made

Rule 5.3(a): Failure to Supervise

Prof. Conduct 3.4(c). with Rule 50(2)(F), constitutes clear and convincing evidence of a violation of N.H. R. 13. Mr. Engel's failure to perform a reconciliation of Mr. Engel's trust account in accordance

abide by Rule 50(2)(F) constitutes a knowing violation of a court rule. would have discovered the undistributed Estate Account money. Mr. Engel's failure to accordance with Rule 50(2)(F), from May 31,2002 through February 21, 2003, Mr. Engel monthly basis. Had Mr. Engel performed a reconciliation of his trust account in 12. Rule 50(2)(F) requires that attorneys perform reconciliations of their trust accounts on a

Rule 50(2)(F) with respect to that money. Engel was required to comply with the obligations of New Hampshire Supreme Court II. Once Mr. Engel transferred the Estate Account money into his fIrm's trust account, Mr.

Rule 3.4(c): Disobey Obligations Under Supreme Court Rule 50(2)(F)

and convincing evidence of a violation of N.H. R. Prof Conduct 3.3(a)(3). 10. Mr. Engel's failure to correct the record on this issue in a timely manner constitutes clear

9. Mr. Engel waited almost nine months to correct his false, material statement.

8. Mr. Engel's denial of the existence of any open estate account was false and material.

of the existence of the Estate Account (and the undistributed funds therein) on that date. p. 7 7. On May 31, 2002, Mr. Engel closed the Estate Account. Mr. Engel was, therefore, aware 7

Hampshire Supreme Court. See, e.g. Feld's Case 149 N.H. 19,28(2002). This sanction is also in This sanction is in accord with the purposes of attorney discipline as described by the New

compliance to the Professional Conduct Committee no later than July 31, 2006. associated with the prosecution of this matter. Finally, David C. Engel shall show proof of further requires David C. Engel to reimburse the Professional Conduct Committee for all costs in the matter is a Reprimand, and further imposes six hours of live ethical CLE credits, and mitigating factors, the Professional Conduct Committee concludes that the appropriate discipline Having made the aforementioned findings and rulings and considered the above mentioned

severe on this fact alone. by the above-mentioned mitigating factors, this sanction, in all likelihood, would have been more do, when he became aware that it was not factual. If not for the overwhelming burden imposed concerned at Mr. Engel's failure to correct the Record, which was his duty and responsibility to Not withstanding these mitigating factors, the Professional Conduct Committee was very Sanction:

process. Engel has admitted every allegation in the Notice of Charges, and he has cooperated fully in this An additional factor is Mr. Engel's cooperative attitude toward the disciplinary process. Mr.

must maintain an active law practice. (which, at this point, cost Mr. Engel at least $1300 per week), Mr. Engel cannot retire and instead with this disease. Mr. Engel is currently p. 7 73 years of age. Due to his daughter's medical bills Mr. Engel intended to retire from the practice of law shortly before his daughter was diagnosed

matter at least partially to his lack of proper focus due to his daughter's disease. work. He would attribute his failures to take proper account of the financial records in the White Mr. Engel spent a great deal of time away from his office and had difficulty focusing on his the bulk of the misconduct occurred, her health deteriorated rapidly and to such an extent that because she could no longer eat food or ingest medicine on her own. In 2002, the year in which deterioration of the body. During that time frame, his daughter was placed on a feeding tube daughter was diagnosed with Ehlers Danlos syndrome, an extremely rare disease that results in a relevant time. See ABA Standards § 9.32(c). Specifically, from 2001 through 2002, Mr. Engel's First, and perhaps most significant, Mr. Engel was suffering from personal difficulties at the

above findings and rulings, certain mitigating factors that applied in this case: In considering the sanction, the Professional Conduct Committee considered, in addition to the Mitigating Factors:

rules, there is necessarily clear and convincing evidence of a violation of Rule 8.4(a). 1 p. 7 7. Because there exists clear and convincing evidence of violation of the aforementioned

Rule p. 8 8.4(a): Misconduct for violating the Rules of Professional Conduct 8

1.15(2)(b), 3.3(a)(3), 3.4(c), 5.3(a), p. 8 8.4(a). Engel, for violating the following New Hampshire Rules of Professional Conduct: 1.3, For all of the above reasons, the Professional Conduct Committee hereby Reprimands David C. Conclusion:

sanctions). Court has never formally adopted these Standards, the Court has considered them when imposing Sanctions (1991). See, e.g., Shillen's Case 149 N.H. 132, 139 (2003) (noting that although the accord with the ABA Center for Professional Responsibility, Standards for Imposing Lawyer