John F. Gallant (2009)

violated Rule 8.4( c), Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation. Violation of the Rules of Professional Conduct. The Committee declines to find that Mr. Gallant Toward the Tribunal; Rule 4.1 (a), Truthfulness in Statements to Others; and Rule 8.4(a), following Rules of Professional Conduct by clear and convincing evidence: Rule 3.3(a), Candor Committee concludes that there is clear and convincing evidence that Mr. Gallant violated the Based on the Stipulation of Facts and the record in this case, the Professional Conduct

Order. establishes those facts by clear and convincing evidence. The Stipulation is attached to this The Committee voted to accept the Stipulation of Facts dated March 19,2008, which

Panel Report dated July 11,2008. Memorandum on Sanction; Transcript of June 4, 2008 Hearing on Sanction and the Hearing Respondent's Memorandum Regarding Proposed Sanction; Disciplinary Counsel's of Law; Transcript ofthe March 21,2008, hearing; Hearing Panel Report dated May 5, 2008; Stipulation of Facts; Respondent's Hearing Memorandum; Disciplinary Counsel's Memorandum The Committee reviewed the record, including: the Notice of Charges; Answer;

McNamara, and James R. Martin. Vice Chair, Gretchen Rule Hamel, Richard H. Darling, David N. Cole, Marilyn Billings Members present included: Alan J. Cronheim, Acting Chair in the matter, Toni M. Gray,

Gallant, Esquire, was also present. Discipline Office. Scott H. Harris, Esquire, appeared on behalf of the Respondent. John F. above-referenced matter. Landya B. McCafferty, Disciplinary Counsel, appeared for the Attorney On September 16, 2008, the Professional Conduct Committee heard oral arguments in the

Gallant, John F. advs. Attorney Discipline Office # 04-101

Gerald A. Daley* Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney member Thomas P. Connair David N. Cole Marilyn Billings McNamara Toni M. Gray, * Vice Chair 603-224-58280 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*

"We can designate one lot to the Court ... We can designate or agree between the parties

Court's questioning, Mr; Gallant stated: Mr. Gallant, on behalf of Fireside, also agreed with this approach. In response to the

Counsel for Deloury Construction agreed with this approach.

attachment be limited to one lot in the subdivision. in some way be limited so as not to impact the entire development. He suggested that the attachment and whether it should be issued against the subdivision as a whole or whether it could At the attachment hearing, Judge Hampsey questioned counsel about the scope of the

belief that Fireside owned the subdivision. sought to attach property in the subdivision based on their written contract with Fireside and their Construction claimed it was owed approximately $120,000.00 for work it had completed. It services in a subdivision being developed by Fireside in Pelham, New Hampshire. Deloury Fireside. Deloury Construction had been hired to build roads and perform certain construction Construction filed for an attachment to secure a potential arbitration award it was seeking against the case of Deloury Construction Company, Inc. v. Fireside Homesteads, LLe. Deloury On July 29,2003, Mr. Gallant acted as defense counsel in an attachment proceeding in

attempt to violate, any of the Rules of Professional Conduct. Rule 8.4(a) provides that it is a professional misconduct for a lawyer to violate, or to

( c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; It is professional misconduct for a lawyer to: Rule 8.4 provides in pertinent part:

(a) make a false statement of material fact or law to a third person .... In the course of representing a client a lawyer shall not knowingly: Rule 4.1 provides in pertinent part:

information otherwise protected by Rule 1.6. proceeding, and apply even if compliance requires disclosure of (b) The duties stated in paragraph (a) continue to the conclusion of the lawyer shall take reasonable remedial measures. offered material evidence and comes to know of its falsity, the (3) offer evidence that the lawyer knows to be false. If the lawyer has (1) make a false statement of material fact or law to a tribunal; ( a) A lawyer shall not knowingly: Rule 3.3, then in effect, provides in pertinent part: p. 3 Page 3 of7

argued: Contempt Order against Fireside for failing to inform them of the failed attachment, Mr. Gallant At a Contempt Hearing held April 15, 2004, wherein Deloury Construction sought a

order to maintain confidential information. Mr. Gallant claims that he was prevented from acting out of deference to his client and in

counsel. until after the lots in question were sold and then only in response to inquiries from opposing neither informed opposing counselor the Court. Instead, he waited to disclose the information remedial measures to inform the Court and counsel. Yet Mr. Gallant took no such steps. He Fireside had no ownership interest in the subdivision, he was obligated to take reasonable attachment proceeding and formed the basis for the Court Order. Once Mr. Gallant learned that particular lot in the subdivision so that the attachment could be perfected was material to the succeeded in obtaining an award through the arbitration process. His offer to designate a attachment in question would be valid and would protect Deloury Construction in the event it responded to questions of the Court and led the Court and opposing counsel to believe that the Under the factual circumstances of this case, Mr. Gallant had participated in a hearing,

property owner. opposing counsel that the attachment had not been perfected because it did not name the actual It was at that time, after Heather Lee Lane, LLC had sold the last of the lots, that Mr. Gallant told On or about April 5, 2004, counsel for Fireside asked Mr. Gallant about the subdivision.

that Mr. Gallant or his law firm also represented Heather Lee Lane, LLC. no value, Heather Lee Lane, LLC completed selling all lots in the subdivision. It should be noted Following the time that Mr. Gallant obtained the information that the attachment was of

to inform opposing counselor the Court of this information. Construction in regard to securing its potential arbitration award. Mr. Gallant, however, declined As a result, Mr. Gallant knew that the Attachment Order was of no value to Deloury

owner of the real estate. and could not be properly perfected because it named Fireside, an entity that was not the actual Following the Attachment Hearing, Mr. Gallant learned that the attachment had not been

Heather Lee Lane, LLC. the case. In fact, Fireside was not the record owner of the subdivision. Instead, it was owned by Judge Hampsey issued the Attachment Order against Fireside as the named defendant in

July 29,2003, pages 403-404.) (Exhibit 12-H, Appendix to Stipulation of Facts, Attachment Hearing dated that whatever the security that the Court may determine is attachable only to that lot. p. 4 Page 4 of7 Committee concludes that the appropriate discipline in this matter is a six month suspension with Having made the aforementioned findings and rulings, the Professional Conduct

Committee declines to make such a finding in this case. require a finding of a violation of Rule 8.4(c), see Carpenito's Case, id at 173-174, and the statements to others. A finding of a violation of Rule 3.3(a) or 4.1(a) does not automatically believes it is appropriate to focus on violation of the Rules related to candor to the tribunal and Court, nor did he disclose the information to opposing counsel. As a result, the Committee Mr. Gallant, once he knew of the flawed attachment, neither corrected the record in

misconduct pursuant to Rule 3.3(a) and 4.1 (a) better describe the circumstances of this case. that the Panel's interpretation of Rule 8.4(c) is too broad and that in this instance, a finding of 'conduct involving dishonesty, fraud, deceit or misrepresentation.'" It is the Committee's view that"any conduct by [Mr. Gallant] which derogated the agreement reached on July 29,2003 was this case. The Committee notes that the Hearing Panel found by clear and convincing evidence Committee's view that Rules 3.3(a) and 4.1(a) more accurately describe Mr. Gallant's conduct in The Committee declines to find that Mr. Gallant violated Rule 8.4( c). It is the

material and was a statement on which opposing counsel relied. NH 168 (1994). As noted earlier, Mr. Gallant's offer to designate a lot for attachment was untrue, he then had an affirmative duty to correct his misstatements. See, Carpenito's Case, 139 representations to be true. Yet at a point when he learned that the statements were inaccurate and statements made to opposing counsel at the hearing because Mr. Gallant believed his ownership interest in the property. As a result, there could be no violation of Rule 4.1(a) for a single lot for attachment, that he made those representations with the belief that Fireside had an Gallant made representations at the Attachment Hearing concerning his willingness to designate Mr. Gallant's conduct also violated Rule 4.1 (a). The Committee believes that when Mr.

available information. result, he obtained the information not in a confidential setting, but through a search of publicly conversation with his client, but rather by reviewing records at the Registry of Deeds. As a addition, Mr. Gallant learned that the attachment was not perfected, not as a consequence of a "even if compliance requires disclosure of information otherwise protected by Rule 1.6." In take reasonable remedial measures once a lawyer learns that he has offered false evidence applies addresses the issue of confidential client information under Rule 1.6 and provides that the duty to Mr. Gallant's position is specifically and clearly rejected by Rule 3.3(b). The Rule

of Facts, Contempt Hearing dated April 15, 2004, page 439) the Court and trump the duty to the third parties ... (Exhibit 12-K, Appendix to Stipulation disclose confidences and to give up a client and its assets to a lawsuit trump the duty to Rules of Professional Conduct, it provides that the duty ofloyalty to a client not to ... under the case law and under the law in the State of New Hampshire, as well as the p. 5 Page 5 of7

potentially adverse effect on the legal proceeding. potential injury to a party to the legal proceeding, or causes an adverse or improperly being withheld, and takes no remedial action, and causes injury or documents are being submitted to the court or that material information is Suspension is generally appropriate when a lawyer knows that false statements or Section 6.12 of the Standards provides:

impeded its effort to enforce a potential arbitration award. Gallant further knew that Deloury Construction's reliance on his representation could have relied on his offer to designate a single lot to provide security for Deloury Construction. Mr. attachment had not been and could not be properly perfected and knew that opposing counsel had opposing counsel that the Court's Order of Attachment had no legal effect. Mr. Gallant knew the this conclusion based on our view that Mr. Gallant had a duty to disclose to the Court and The Committee believes that the baseline sanction in this case is a suspension. We make

system. Court and to plaintiff. His actions serve only to cause the public to lose confidence in the judicial could have provided security were sold, Mr. Gallant violated his obligations of candor to the presented at the attachment hearing and the resulting Court Order, as the subdivision lots which of attorneys forms the very bedrock of our judicial system." By failing to timely correct the facts Case, 146 N.H. 466,467 (2001). "The confidence of judges to rely with certainty upon the word One of the main tenants of our judicial system is candor to the tribunal. See, e.g., Kalil's

or mitigating factors." Standards Section 3.0; Coffey's Case, 152 N.H. at 513. potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating factors to consider in imposing sanctions:"(a) duty violated; (b) the lawyer's mental state; (c) the determine the baseline sanction. Coffey's Case, 152 N.H. at 513. The Standards set forth four Association's Standards for Imposing Lawyer Sanctions (1992) ("Standards'') for guidance to The New Hampshire Supreme Court and this Committee look to the American Bar

the misconduct." Id. (2005) (internal quotation marks omitted)."The sanction must take into account the severity of profession, and prevent similar conduct in the future." E.g. Coffey's Case, 152 N.H. 503, 513 "is to protect the public, maintain public confidence in the bar, preserve the integrity of the legal Kersey's Case, 150 N.H. 585, 585 (2004). Rather, the purpose of the Court's disciplinary power Disciplinary action and sanctions are not intended as a mode of inflicting punishment.

adopted these Standards, the Court has considered them when imposing sanctions. Shillen's Case, 149 N.H. 132, 139 (2003) (noting that, although the Court has never formally Professional Responsibility, Standards/or Imposing Lawyer Sanctions (1991). See, e.g., Feld's Case, 149 N.H. 19,28 (2002). This sanction is also in accord with the ABA Center for purposes of attorney discipline as described by the New Hampshire Supreme Court. See, e.g., the suspension being stayed for a period of two years. This sanction is in accord with the p. 6 Page 6 of7

matter. Mr. Gallant is assessed all costs associated with the investigation and prosecution of this

extended until such time as the grievance is resolved. filed but remains unresolved during this two year period, the stay of the suspension shall be determine whether a portion or all of the 6 month suspension shall be imposed. If a grievance is Gallant violates the Rules during this time, the Committee shall schedule a further hearing to Professional Conduct during this two year period, the suspension shall not be imposed. If Mr. a period of two years from the date ofthis Order. If Mr. Gallant does not violate the Rules of Mr. Gallant is suspended for a period of 6 months, however, this suspension is stayed for

8.4(a). The Committee declines to find a violation of Rule 8.4(c). convincing evidence that Mr. Gallant violated N.H. R. Prof. Conduct Rules 3.3(a), 4.1(a) and Based on the record presented, the Professional Conduct Committee finds by clear and

v. CONCLUSION

months, however, the suspension should be stayed for a period of two years. charges, the Committee concludes that Mr. Gallant should be suspended for a period of 6 In weighing the Rules violated along with Mr. Gallant's history and response to these

(a), (e), (g), G) and (1). obligations under the Rules, an awareness that clearly did not exist in 2003. See, Standards 9.32 disciplinary counsel in the investigation of the case and has demonstrated an awareness of his infractions in the more than 5 years that has passed since these events. He has cooperated with and competence in his work. He has no prior infractions before these events and has no introduced evidence at the Sanction Hearing of his good character and of his reputation for care differently by making necessary disclosures to opposing counsel and the Court. Further, he regarding his choices in this case and has indicated he would now handle a similar situation more critical to the Committee's judgment in this case, Mr. Gallant has expressed remorse noted, he has substantial experience in the practice oflaw. See, Standards, 9.22 (b) and (i). But order to maintain his client relationship for as long as possible. Further, as disciplinary counsel outweigh aggravating factors. It appears that Mr. Gallant did not correct the record in the case in weigh aggravating and mitigating factors in the case. Here, the mitigating factors strongly Having found that the baseline sanction in this case is a suspension, the Committee must p. 7 Page 7 of7

File Scott H. Harris, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

January 27, 2009 <::::\~.\

37(3)(c). appeal this decision to the New Hampshire Supreme Court. See also Supreme Court Rule Pursuant to Supreme Court Rule 37(A)(III)(d)(2)(D)( 4)(A), the parties have the right to