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Mary Howie (2009)
the person and estate of her brother, which was granted on or about 3. Shortly thereafter, Michael's sister, Coleen Walsh, petitioned for guardianship of term memory loss. As a result, Michael suffered permanent disability, including confusion and short 2. On November 5, 2001, Michael Cunneen was in a serious motor vehicle accident. 103, Salem, New Hampshire 03079. Ms. Howie operated her law office as, Howie Law Office at 1 Stiles Road, Suite was admitted to practice on June I, 1992. At all times material to this proceeding, I. Ms. Howie is an attorney licensed to practice law in New Hampshire. Ms. Howie
I. FINDINGS OF FACT
dated December 17,2008. established those facts by clear and convincing evidence, as reflected in the Committee's Order The Conunittee previously voted to accept the parties' Stipulation of Facts which
also present. Office, William B. Parnell, Esquire, presented for the Respondent. Mary Howie, Esquire, was McCafferty, Disciplinary Counsel, presented at Oral Argument for the Attorney Discipline Chollet abstained, as she had not been present for the previous deliberations. Landya B. Billings McNamara. Richard H. Darling was absent. Alan J. Cronheim was recused. Ms. Thomas P. Connair, Gerald A. Daley, Gretchen Rule Hamel, James R. Martin and Marilyn Benette Pizzimenti, Vice Chair, Toni M. Gray, Vice Chair, Susan R. Chollet, David N. Cole, deliberated the above captioned matter. Members present included Margaret H. Nelson, Chair, On February 17,2009, the Professional Conduct Conunittee heard Oral Argument and
PUBLIC CENSURE
Howie, Maryadvs. Attorney Discipline Office # 07-034
Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole Marilyn Billings McNamara Susan R. Chollet' James R. Martin Toni M. Gray,' Vice Chair 603-224-5828. Fax 228-9511 Gretchen Rule Hamel Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Richard H. Darling' Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Gerald A. Daley'
Professional Conduct Committee New Hampshire Supreme Court Page 2 of 12 Testify in any judicial or administrative proceedings. Hold or obtain a motor vehicle operator's license. Make l! will or waive the provisions of a will. Marry or divorce. providing such at the lawful direction of the guardian of the person. or discharged from any hospital or other medical institution counseling, treatment or service, including the right to be admitted Refuse or consent to medical or other professional care, Travel or decide where to live. following rights, namely, the right to: The court finds that the ward is incapable of exercising the preservation of the ward's civil rights and liberties. form of intervention consistent with the (d) Guardianship is appropriate as the least restrictive affairs. management of the ward's property and financial safety or rehabilitation and for the prudent are suitable with respect to the ward's welfare, (c) There are no available alternative resources which the ward's property and financial affairs. rehabilitation and for the prudent management of for the ward's continuing care, supervision, and (b) Guardianship is necessary as a means of providing (a) Michael Cunneen ("ward") is incapacitated.
findings as required by RSA 464-A:9, III (a)-(d), namely: evidence proffered thereon, the court renders the following the petition for guardianship filed by Coleen Walsh and all the After a hearing held at this court, and upon due consideration of
5. In relevant part, the June 17,2004, Order stated: of Michael. granted Coleen' s petition and appointed her guardian over the person and estate By order dated June 17,2004, the Rockingham County Probate Court (O'Neill, J.) 4. In 2004, Coleen filed a similar petition for guardianship in New Hampshire. Probate Court, Docket No. 01-P-3255-G II. January 29,2002, by the Commonwealth of Massachusetts, Essex Division Page 3 of 12
prior approval of the court; and except pursuant to RSA 464-A:25 1,(a), without the Hampshire Hospital or a similar state institution, or authority to place the ward in the New a. The guardian of the person shall not have the right
counseling, treatment, or service provided however, that: consent should be given to any medical or other professional care, The right and authority to determine if refusal should be made or lives. The right and authority to determine where the ward travels or
specified herein, namely: specified herein, subject to those orders and limitations also The guardian of the person shall have the rights and powers
GUARDIANSHIP OF THE PERSON
Make decisions concerning educational matters and training .... Make contracts or grant power of attorney or other authorizations. Initiate, defend or settle lawsuits. the state duly exercised pursuant to this order. Cancel, reject, or oppose any authority or power of the guardian of Continue to act as a member of a partnership. Conveyor hold property. Manage or run a business. Payor collect debts. Lend or borrow money. Make gifts. source. Possess or manage real or personal property or income from any concerns are properly addressed and treated. ensure that the ward's mental, emotional and physical health same may be reasonably needed by the guardian of the person to release of the ward's confidential records and papers insofar as the authorization for the guardian of the person to obtain access to and Have access to, grant release of, withhold, deny, or refuse Vote. Page 4 of 12
the spouse, parent, or child of the guardian of the board, or support which the guardian of the estate or e. Shall not use funds from the ward's estate for room, d. Shall not purchase a homestead for the ward. real estate. c. Shall not purchase any undivided fractional part of any property of the ward. b. Shall not sell, mortgage, pledge, lease, or exchange the ward. a. Shall not make any gift of any property or assets of
The guardian over the estate: written court approval in each instance: following, which shall not occur or be undertaken without prior rights and powers set forth in RSA 464-A:26, I and II, except the The guardian of the estate shall have authority to exercise all of the specified herein, namely: specified herein, subject to those orders and limitations also The guardian of the estate shall have all the rights and powers
GUARDIANSHIP OF THE ESTATE
authorities set forth in RSA 464-A:25. guardian of the person shall have all of the rights, powers and To the extent not otherwise encompassed within the foregoing, the provisions ofRSA 464-A:35. each anniversary date of appointment in accordance with the circumstances, and condition ofthe ward within ninety (90) days of The duty to file an annual report of the present statues,
to time. addressing the ward's personal needs and concerns from time and papers of the ward for the limited purpose of assessing and The right and authority to gain access to all confidential records
approval of the court. or procedure of any nature without the prior or any other experimental or extraordinary treatment psychosurgery, electroshock therapies, sterilization or authority to give consent to or contract for b. The guardian of the person shall not have the right Page 5 of 12
II. Will 1 left Michael's entire estate to Coleen and named Coleen as executrix. executed by Michael (hereinafter referred to as"Will 1"). in the room where the will was signed, when, on March 24, 2005, the Will was 10. Ms. Howie prepared the Will. Coleen was present in Ms. Howie's office but not for Michael. 9. In or about March 2005, Michael and Coleen asked Ms. Howie to prepare a will guardian for Michael. 8. On or about January 5, 2005, Ms. Howie entered an Appearance for Coleen, as Michael's person and his estate. 7. Coleen retained Ms. Howie to represent her in her capacity as guardian of
below .... in effect as per the records of this court, as of the dated stated guardian accepted this responsibility, and the appointment remains restricted as expressly stated in those documents. The named recited in orders or decrees issued by the court, and are limited or Cunneen ... The rights, duties and powers of the guardian are duties of guardian over the person and estate of Michael On June 17,2004, Coleen Walsh ... was appointed to perform the
6. On June 18, 2004, the Court issued a Certificate of Appointment as follows:
(Emphasis added). accordance with RSA 464-A:40.... accordance with RSA 464-AP:36, and a final accounting in The guardian of the estate shall render annual accountings in nommee. of the guardian of the estate, and shall not be held in the name of a guardianship in the name of the ward with a notation of the name The guardian over the estate shall hold all assets of the ward's
for services or out-of-pocket expenses. personal benefit, whether or not as compensation guardianship to the guardian of the estate's own f. Shall not apply any assets of the ward's estate have furnished the ward. Page 6 of 12
24. On May 31, 2007, a hearing was held to determine the validity of Wills 1 and 2. expressly found that Michael lacked the capacity to make a will. Will 2 was legally valid because, in the Court's June 17,2004, Order, the Court 1 and 2"to be legally invalid." Mr. Tropiano reasoned that neither Will 1 nor 23. In his report, Mr. Tropiano recommended, inter alia, that the Court declare Wills "Report of Counsel." 22. On or about March 19,2007, following his investigation, Mr. Tropiano filed a investigate Michael's guardianship and report back to the Court. 21. In its November 14, 2006, Order, the Court requested that Mr. Tropiano represent Michael. 20. By Order dated November 14,2006, Joseph J. Tropiano, Esq., was appointed to "wrong," and then he told her about the content of Will 2. 19. In or about November 2006, Michael told Coleen that he had done something guardian. executrix. Will 2 named the Office of Public Guardian as Michael's chosen Coleen and Michael's other siblings as beneficiaries. Will 2 named Ms. Howie as 18. In Will 2, Michael left his estate to his nieces and nephews, and expressly omitted 17. At the time if its creation, Coleen was not aware of the content of Will 2. office on July 11, 2006. 16. Will 2 was drafted by Ms. Howie. It was executed by Michael at Ms. Howie's 15. Coleen was not aware of Michael's intention to void WillI and drafting Will 2. incapable of making a will. Court's order of June 17,2004 declaring that Michael was incapacitated and to as"Will 2"). At the time Will 2 was drafted, Ms Howie was aware of the Ms Howie's office without Coleen to execute a second will (hereinafter referred 14. Michael called Ms. Howie's office on one occasion to prepare and then went to 13. In or about July 2006, Michael wanted to change Will 1. incapable of making a will pursuant to the Court's order of June 17,2004. 12. At the time Will 1 was drafted and executed, Michael was incapacitated and Page 7 of 12
guardian, when Ms. Howie drafted and finalized the execution of Wills 1 and 2. 33. Ms. Howie breached her duty to provide competent representation to Coleen, as inconsistent with the Court's June 17 Order. 32. By drafting and finalizing the execution of Wills 1 and 2, Ms. Howie took actions incapable of, inter alia, making a will. 31. The Order creating the guardianship held that Michael was incapacitated and competent representation. 30. Ms. Howie owed Coleen, in her role as guardian, a duty to provide Coleen with over Michael's person and estate. 29. At all relevant times, Ms. Howie represented Coleen, in Coleen's role as guardian establishing a guardianship over Michael's person and estate was in effect. 28. At all relevant times, the June 17,2004, Rockingham County Probate Court Order 27. Allegations set forth above are incorporated by reference.
Rule 1.1(a): Competence
convincing evidence. Conflict of Interest and 8.4(a); Misconduct, which established those violations by clear and Stipulation to the Rule Violations of N.H. R. Prof. Conduct !.I(a); Competence, 1.7(a); Alsos reflected in the Order dated December 17, 2008, the Committee voted to accept the
II. RULINGS OF LAW
2007, on behalf ofMs Howie and was denied without explanation. 464-A:40." A Motion for Clarification and Reconsideration was filed June 15, the Court's Order of June 17,2004 and are in violation of the provisions ofRSA were legally invalid. The Court held;"Both wills were executed in violation of 26. On May 31, 2007, the Court (Hurd, 1.) issued an Order finding that Wills I and 2 representative of Michael. Ms. Howie; and Mr. Tropiano's associate appeared as the court-appointed 25. David Wolowitz, Esq., represented Coleen; William B. Parnell, Esq., represented Page 8 of 12
as guardian and executrix. 43. In Will 2, Michael disinherited Coleen and his other siblings, and removed Coleen representation to Michael. 42. In drafting and finalizing the execution of Will 2, Ms. Howie provided legal Michael was incapacitated and was not capable of making a will. 41. The June 17, 2004, Order creating the guardianship further establishes that Michael's person and his estate. court-appointed designee to make, inter alia, legal decisions in the best interest of 40. The June 17,2004, Order creating the guardianship establishes that Coleen is the person and estate. 39. At all relevant times, Ms. Howie represented Coleen as guardian over Michael's 38. Allegations set forth above are incorporated by reference.
Rule 1. 7(a): Conflict of Interest
of N.H. R. Prof. Conduct 1.l(a). execution of Wills 1 and 2, constitute clear and convincing evidence of a violation capacity to make a will, and Ms. Howie's decision to draft and finalize the 37. Ms. Howie's failures to properly advise Coleen with respect to Michael's legal 464-A, constitute legal incompetence. expressly prohibited Michael from making a will; and (b) the provisions of RSA 36. Ms. Howie's failures to advise her client of (a) the June 17,2004, Order, which planning by a guardian. Ms. Howie did not so advise Coleen. RSA 464-A:26-a provides a detailed statutory procedure governing estate provisions ofRSA 464-A, governing guardians and conservators. For example, 35. As lawyer for the guardian, Ms. Howie also had a duty to advise Coleen of the a will. Ms. Howie did not so advise Coleen. creating her guardianship over Michael expressly precluded Michael from making 34. At a minimum, Ms. Howie had an obligation to advise Coleen that the Order Page 9 of 12
Standard 3.0; Grew's Case, 156 N.H. at 365. caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. sanctions: (a) the duty violated; (b) the lawyer'S mental state; (c) the potential or actual injury Id. The Standards set forth a four part analysis for the Committee to consider in imposing the American Bar Association's Standards/or Imposing Lawyer Sanctions (2005) ("Standards"). In assessing the propriety of a particular sanction, the Committee looks for guidance to
the severity of the misconduct and any mitigating circumstances appearing in the record." Id. Each attorney discipline case is judged on"its own facts and circumstances, taking into account profession, and prevent similar conduct in the future." Grew's Case, 156 N.H. 361, 365 (2007). protect the public, maintain public confidence in the bar, preserve the integrity of the legal remain"mindful that the purpose of attorney discipline is not to inflict punishment, but rather to In assessing the appropriate sanction in attorney discipline cases, the Committee must
III. ANALYSIS
Prof. Conduct 3.4(c): Knowingly Disobeying the Rules ofa Tribunal. The Committee voted to accept the Stipulation to the removal of a violation ofN.H. Rule
N.H. R. Prof. Conduct 8.4(a). above rules, there is necessarily clear and convincing evidence of a violation of 49. Because there exists clear and convincing evidence that Ms. Howie violated the
Rule 8.4(a): General Rule
l.7(a). constitutes clear and convincing evidence of a violation of N.H. R. Prof. Conduct 48. Ms. Howie's representation of Michael in the drafting and execution of Will 2 and therefore directly adverse to the interests of Coleen, as guardian. 47. For the reasons stated above, see supra at'\['s 30-40, Will 2 was legally invalid representation. 46. At no time did Michael have the capacity to consent to Ms. Howie's dual preparation and execution of Will 2. 45. At no time was there an informed consent by Coleen to Ms. Howie during the Coleen's capacity as guardian. preparing Will 2 would not adversely affect her relationship with Coleen in 44. Ms. Howie could not have reasonably believed her representation of Michael in Page 10 of12
provides: has failed to provide competent representation. Standard 4.5 entitled"Lack of Competence," Standard 4.5 outlines the factors to consider in determining a baseline sanction when an attorney Before determining a baseline sanction, it is helpful to look to the Standards for guidance.
Howie's client and the legal profession as a result of Ms. Howie's misconduct. Any sanction in this case should account for the actual and potential harm to both Ms.
of the legal profession as a whole suffers. time a client loses trust in her lawyer as a result of the lawyer's ethical misconduct, the reputation confidence in Ms. Howie as a result of her incompetence and conflicted representations. Any Howie's misconduct caused an unnecessary use of judicial resources. In addition, Coleen lost representation, the hearings on the validity of Wills 1 and 2 would have been unnecessary. Ms. Howie's misconduct. Ultimately, had Ms. Howie provided the guardianship with competent the guardianship was also burdened with a legal proceeding made necessary only because of Ms. guardianship was minimized by the Court's ruling and by Ms. Howie's repayment oflegal fees, connection with her work related to Wills 1 and 2. Although some of the harm to the the guardianship. Further, Ms. Howie reimbursed the guardianship for legal fees billed in the Court simply vacated Wills i and 2 as invalid, and Ms. Howie was removed as attorney for The guardianship was exposed to potential significant harm. Fortunately for the guardianship, suffered as a result of her misconduct. Ms. Howie's client in this matter was the guardianship. The third prong requires analysis of the injury, or potential injury, Ms. Howie's client
constitutes gross negligence. Under the circumstances, Ms. Howie's failure to consult the governing document and statutes reviewed both the Court's June 17,2004, Guardianship Order, and the relevant probate statutes. Howie acted with gross negligence. Before drafting both Wills I and 2, Ms. Howie should have led Ms. Howie to engage in the conflict of interest. With respect to her incompetence, Ms. The most serious misconduct in this case is the Rule 1.1 (a) violation, which, in many ways, also The second prong of the three-part test requires analysis of Ms. Howie's mental state.
These are serious violations. Howie also violated her duty to provide representation that is free from conflicts of interest. obligations of the legal profession: to provide competent representation to her clients. Ms. Under the first prong of the analysis, Ms. Howie violated one of the fundamental
Court] considers the effect of any aggravating or mitigating factors on the ultimate sanction."). whether they affect the baseline sanction. See, e.g., id. ("After determining the sanction, [the fourth and final step in the analysis: the existence of any aggravating or mitigating factors and appropriate sanction."). Once the baseline sanction is determined, the Court then looks to the applying these factors, the first step is to categorize the respondent's misconduct and identifY the determining a baseline sanction. See, e.g., Wolterbeek's Case, 152 N.H. 710, 714 (2005) ("In The first three steps create the framework for characterizing the misconduct and Page 11 of 12 2 Section 4.54 uses the tenn"Admonition." The most analogous sanction in New Hampshire is a Reprimand. I Section 4.53 uses the tenn"Reprimand." The most analogous sanction in New Hampshire is a Public Censure.
Hampshire case law, and the purposes of attorney discipline in New Hampshire, a public censure Taking into consideration the four-part analysis recommended by the Standards, New
misconduct is deserving of a public censure. case. The incompetence was egregious and was compounded by the conflict of interest; the disciplinary history, they do not provide a sufficient basis to reduce the baseline sanction in this § 9.32(e). Although these mitigating factors are significant, particularly Ms. Howie's lack ofa Howie has maintained a cooperative attitude toward the disciplinary proceedings. See Standards Second, Ms. Howie lacked a dishonest or selfish motive. See Standards § 9.32(b). Third, Ms. there are three. First, Ms. Howie does not have a disciplinary history. See Standards § 9.32(a). There are no aggravating factors in this matter. With respect to the mitigating factors,
appropriate once the aggravating and mitigating factors are considered. Ms. Howie's misconduct warrants a baseline sanction of public censure. A public censure is also Having considered the three-prong test, alongside the language of Standards § 4.53(a),
principles and procedures and her misconduct caused injury to the guardianship. 4.53(a). In this matter, Ms. Howie demonstrated a"failure to understand" the relevant probate Of the above-listed sections of Standard 4.5, the most applicable appears to be section
legal matter, and causes little or no actual or potential injury to a client. instance of negligence in determining whether he or she is competent to handle a 4.54 Admonition2 is generally appropriate when a lawyer engages in an isolated legal matter and causes injury or potential injury to a client. (b) is negligent in determining whether he or she is competent to handle a
and causes injury or potential injury to a client; or (a) demonstrates failure to understand relevant legal doctrines or procedures
4.53 Reprimand l is generally appropriate when a lawyer:
potential injury to a client. in which the lawyer knows he or she is not competent, and causes injury or 4.52 Suspension is generally appropriate when a lawyer engages in an area of practice
to a client. doctrines or procedures, and the lawyer's conduct causes injury or potential injury demonstrates that the lawyer does not understand the most fundamental legal 4.51 Disbarment is generally appropriate when a lawyer's course of conduct Page 12 of 12
File William B. Parnell, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:
Chair M~~~~ April(ll, 2009
expenses associated with the investigation and prosecution of this matter. The Committee voted to accept the Stipulation to Respondent's reimbursement of all
V. CONCLUSION
The Committee voted to accept the Stipulation to a Public Censure.
IV. SANCTION
all of the goals of attorney discipline in New Hampshire. into account the severity of the misconduct in Ms. Howie's case. A public censure would serve is appropriate. A public censure accords significant weight to the mitigating factors and takes