James P. Nadeau Jr. (2009)

Esquire, ("Justin"), and Jay Nadeau, Esquire. In or about January 2004, Justin hired included the names of three lawyers: Mr. Nadeau and two of his sons, Justin P. Nadeau, 1. At all times material to this proceeding, the letterhead of Nadeau Law Offices, P.L.L.C.

following factual findings by clear and convincing evidence: The Professional Conduct Committee has determined that the record supports the

record in this matter and makes factual findings and rulings of law as detailed below. incorporated herein by reference. The Professional Conduct Committee thoroughly reviewed the April 15, 2009, and an apology to the complainant, which Stipulation is attached to this order and sanction of a Public Censure accompanied by a resignation from the New Hampshire Bar by be imposed for ethical misconduct as set forth below. Said Stipulation contains an agreed upon Richard Y. Uchida, Esquire, and Disciplinary Counsel be approved and that the sanction therein recommended that a Stipulation dated October 10,2008, by James P. Nadeau, Jr., his counsel, Marilyn Billings McNamara. Gretchen Rule Hamel abstained. Following Oral Argument, it was David N. Cole, Alan J. Cronheim, Gerald A. Daley, Richard H. Darling, James R. Martin and (by phone), Benette Pizzimenti, Vice Chair, Toni M. Gray, Vice Chair, Thomas P. Connair, referenced matter. The Professional Conduct Committee consisted of Margaret H. Nelson, Chair On October 21, 2008, the Professional Conduct Committee deliberated the above

Nadeau, James P. Jr. advs. William F. Becksted # 04-048

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 603-224-5828. 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*

1 p. 2 2. On December 17,2004, BA stopped work on The Project.

The Project.

11. In December p. 2 2004, a dispute arose between the Becksteds and Justin regarding the cost of

Tucker's Cove lawsuit.

10. On or about August 31, p. 2 2004, Mr. Nadeau filed his Appearance on behalf ofBA in the

9. In or about August p. 2 2004, Mr. Pelech withdrew from representing the Becksteds.

Becksteds in the Tucker's Cove lawsuit.

8. In or about July p. 2 2004, Mr. Nadeau agreed to Mr. Becksted's request to represent the

7. The Becksteds were originally represented in this lawsuit by Bernard W. Pelech, Esq.

lawsuit.

6. Tucker's Cove Builders impleaded BA as a third-party defendant in the Tucker's Cove

Docket #03-C-0146.

5. The lawsuit was entitled, Tina D. Montgomery v. Tucker's Cove Builders, LLC, et al.,

construction of her house.

D. Montgomery, against Tucker's Cove Builders, LLC, for the allegedly faulty

4. The lawsuit was brought in Rockingham County Superior Court by a homeowner, Tina

defendant in an umelated lawsuit.

p. 3 3. In p. 2 2004, during the course of their work on The Project, BA was named as a third-party William F. Becksted, Jr. ("Rick, Jr."). 2. BA is a construction partnership owned by William F. Becksted ("Rick, Sr.") and Project"). unused rear and second story floor space ofthe Nadeau law office building ("The Becksted Associates ("BA") to renovate and convert into a residential apartment the 3

tolerance levels and bend over backwards to avoid confrontation. on your outstanding bill, and believe me, we both have high There is no way Justin or I feel you should be paid anything further

Dear Rick:

20. In a letter to Rick, Sr. dated January 11, 2005, Mr. Nadeau wrote:

dispute between BA and Justin regarding The Project.

19. While representing BA in the Tucker's Cove case, Mr. Nadeau became involved in the

on March p. 3 30, 2005.

lawsuit was settled at a mediation on February 16, 2005, and the paperwork was finalized

18. Mr. Nadeau continued representing BA in the Tucker's Cove case until the Tucker's Cove

have been only $4,6 p. 3 30.50.

only 22.05 hours. At an hourly rate of $210.00, the total bill (using 22.05 hours) should

17. The individual time entries on the December 29 invoice, however, added up to a total of

of$210.00.

$12,001.50. The December 29 invoice listed the total hours as 57.15, and an hourly fee

16. Mr. Nadeau's December 29 invoice to BA included an outstanding total legal bill of

legal work on the Tucker's Cove case from July 2004 through December 29,2004.

15. On or about December 29,2004, Mr. Nadeau forwarded an invoice to BA covering his

Rockingham County Superior Court.

mediation in the Tucker's Cove case had been scheduled for February 16, 2005, at

14. On or about December 22,2004, Mr. Nadeau wrote a letter to BA, informing it that a

date on The Proj ect.

1 p. 3 3. On December 20,200 p. 4 4, BA submitted to Justin its final invoice for its work completed to 4

20% to 25% kick back mark up that he would not have to pay if we never thought for a minute that you were secretly going to receive a recommended the flooring and cabinet companies to Justin, he favorable prices negotiated directly with the provider. When you whom we could buy the materials at their"cost" or at least at very fixtures and appliances through clients and Contractor friends from was made clear that we could purchase the flooring, cabinets, flooring is outrageous. I was part of the initial discussions and it Your adding a 20%-25% markup on the kitchen cabinets and

the bar with him. charged him extra for the Plumber because you did not coordinate and which caused having to put the fish tank in the bar. You also storage and in which he wanted to place a rectangular fish tank, walls that you knew Justin wanted to have access through for You allowed the Electrician to run wires through the middle of the Plumber who you offered to procure instead of us getting our own. You also had an obligation to supervise the Electrician and

care how you itemized your charges. on what we were led to believe was a contract price so we didn't keeping, understanding that we were making "progress payments" were charging $50.00 per hour, we took those as your own record anyone else, to do grunt work and as for the notations when you outset. Justin certainly did not expect to be paying Rick, Jr., Jim or project. That was our clear understanding from Rick, Jr., from the "common laborer's work" much of which was involved in this you and Rick, Jr. You had an obligation to hire laborers to do common laborer work are abuses of the trust that Justin placed in planning" the platform, along with charging $50.00 per hour for for the bar. Those charges which you said included "3 days of 'lj sided unfinished closets is absurd, as is the charge of$11,198.58 The charge of$7,306.00 for the so-called "bed platform" and two 1

reasonable at that time. you then was easily $1 p. 4 4,000.00 + over what could be considered $1 p. 5 54,000.00, which included the major "extras" and which I told made it clear you could not exceed your revised budget of understood to be above the original contract price and we also when we met with you for Justin, that any "extras" were blame is misplaced. Gail and I made it clear to you in September tried to place blame on Justin and as far as I am concerned, that $100,000.00, and turned it into $200,000.00 of billings. You have You and Rick, Jr. took a contract that you knew was not to exceed 5 resolve any difference. particularly in light of the firm's willingness to waive its bill to for a proj ect that is more than twice the original contract price, and touch up work. [sic] is not willing to incur any additional expenses clothes rods in the closet, hinging the bar top and miscellaneous consists principally of finishing the stairway flooring, installing remaining work that needs to be done is minimal, and as I see it, fixed contract with you and have little remaining work to do. The resolve any difference. The Plumber and Electrician were under a particularly in light of the firm's willingness to waive its bill to been billed at more than twice the original contract price, and not willing to incur any additional expenses for a project that has so long as there are no further charges made for that work. He is whatever reason you may want to do so, he has no objection to that Justin mentioned that you would like to "finish" the project and for

may continue with us at our usual charge. Mediation, however, you will have to obtain new counsel, or you which Justin and I feel is not owed. If your case does not settle at and Justin. This is equivalent to your being paid over $1 p. 5 5,000.00 cost and as a good faith compromise ofthe dispute between you has now been changed to February 16th at 9:00 am at no additional its bill and to represent you through the upcoming Mediation which 2004 is in the amount of$12,474.00.The office is willing to waive Your outstanding bill with Nadeau Law Office as of December 24,

and wrote his own check to pay for the floors. worked with Brett from B and C Floor Store to pick out the floors cost of his flooring notwithstanding the fact that Justin personally when you admitted to him that you had added 20% to 2 p. 5 5% to the store did not give him the information he requested and that is called the flooring store. Justin told you how upset he [sic] that the You then confronted Justin at the apartment about his having ofthe line refused to answer and IMMEDIATELY called you. paid per square foot for this flooring, the woman on the other end apartments that I was rebuilding and when he asked how much he called the flooring company to get a quote for me for the cabinets. He found out what you were doing only because he the hardwood flooring and Area Kitchen Centre for the kitchen treating him the same when you suggested B and C Floor Store for whom we intended to get the flooring. Justin thought you were You knew from the outset that we had a client and friend through

arranged the purchases. p. 6 6

with respect to the finalization of the Tucker's Cove case.

regarding Rick, Sr.'s execution of the mediation agreement and some outstanding issues

27. On February 25,2005, Mr. Nadeau sent the Becksteds (via mail and telefax) a letter

February 24 invoice) should have been $3,1 p. 6 60.00.

2 p. 6 6. However, at an hourly rate of $210.00, the total bill (using 15.04 hours reflected on the

as 15.40, and an hourly fee of$210.00.

December 29 invoice) totaled $3,234.00. The February 24 invoice listed the total hours

25. According to the February 24 invoice, J.P. Nadeau's legal bill (since the date of the

24. The February 24 invoice listed $12,474.00 as a carry-over amount from the December 29.

$15,708.00.

Tucker's Cove representation. This February 24 invoice listed a total balance due as

23. On or about February 24,2005, Mr. Nadeau sent a second legal bill to BA for the

dispute between BA and Justin.

the conflict of interest between himself, his law firm, and BA as a result of the ongoing

22. At no time prior to or during the mediation did Mr. Nadeau discuss with anyone from BA

defendant from the lawsuit.

mediation resulted in BA, upon the signing of mutual releases, being removed as a named

County Superior Court (Maher, J.) in the Tucker's Cove case. The settlement at

21. On February 1 p. 6 6, 2005, Mr. Nadeau represented BA at the mediation in Rockingham

J. P. Nadeau Very truly yours, others complete what remains to be done. If I do not hear from you by Friday, we will proceed with having p. 7 7

releases, thereby concluding their involvement in the Tucker's Cove case.

31. Also on March 30, 2005, the Becksteds went to Nadeau Law Offices and signed mutual

contained errors.

Committee dated March 18, 2005, was the first time he had received notice that his bills

$9,639.00. Mr. Nadeau noted in his letter that Rick, Sf.'s letter to the Dispute Resolution

conceded the errors in his bills and enclosed corrected bills with a new total bill of

30. In a letter dated March 30, 2005, to the Dispute Resolution Committee, Mr. Nadeau

Dispute Resolution Committee.

Tucker's Cove representation and sought to resolve them with the assistance of the

Resolution Committee, Rick, Sr. cited multiple errors in Mr. Nadeau's legal bills for the

29. In a letter dated March 18, 2005, to the New Hampshire Bar Association's Dispute

Justin P. Nadeau.

Very truly yours, restrain myself from suing you. me substantial damages and losses and I have all I can do to abused it while I was running for public office. You have caused of paying you one cent more. You took advantage of my trust and stated in that letter are my positions. I have absolutely no intention that he signed and sent to you on January 11, 2005. The positions ... I fully conferred with my father in the preparation of the letter

letter to BA as follows:

inter alia, BA's billing for work on The Project. Justin concluded the March 4,2005,

responded to an invoice from BA with accusations against BA and disputes regarding,

2 p. 8 8. In a letter to BA dated March 4, 2005, written on Nadeau Law Office stationary, Justin 8

11,2005, letter to BA. 2004, when BA stopped work on the Project, and certainly as of Mr. Nadeau's January respect to the ongoing dispute between Justin and BA, from and after December 17, limited by Mr. Nadeau's pursuit of his own interests (and/or those of Justin's) with 3 p. 8 8. Mr. Nadeau's representation ofBA in the Tucker's Cove case may have been materially involvement in Justin's dispute with BA. 37. Mr. Nadeau's letter to BA dated January 11, 2005, confinns Mr. Nadeau's direct construction dispute, while, at the same time, representing BA in the Tucker's Cove case. an actual or potential conflict of interest associated with pursuit of his and/or Justin's Cove case, Mr. Nadeau did not discuss with either Rick, Sr. or Rick, Jr., the existence of 36. From December 17, 2004, through the end of his representation ofBA in the Tucker's Tucker's Cove case until the conclusion ofthe case, on or about March 30,2005. 35. Despite the dispute between Justin and BA, Mr. Nadeau continued to represent BA in the Project. Justin regarding outstanding bills and payment for work already completed on The 34. On December 17, 2004, BA stopped work on The Project as a result of a dispute with 33. Allegations set forth above are incorporated by reference.

Jr. has violated the Rules of Professional Conduct as follows: Conduct Committee concludes that there is clear and convincing evidence that James P. Nadeau, The above-listed facts having been found by clear and convincing evidence, the Professional

The Project. finn seeking, inter alia, payment on their outstanding bill (approximately $40,000.00) for 32. Also on March 30, 2005, BA filed a lawsuit against Mr. Nadeau, Justin, and their law p. 9 9

between Justin and BA became clear. 47. Mr. Nadeau represented BA in the Tucker's Cove case after the dispute and conflict none of the lawyers in Mr. Nadeau's law firm could knowingly represent BA in that case. 46. Because Justin would be prohibited from representing BA in the Tucker's Cove case, "fundamental conflicts" cannot be waived by the client). except in limited circumstances. See Kelly's Case, 137 N.H. at 31 p. 9 9 (explaining that where the representation"may be materially limited by the lawyer's ... own interests" in the Tucker's Cove case. Rule 1.7 (b) prohibits a lawyer from representing a client 45. Due to the ongoing dispute between Justin and BA, Justin could not have represented BA

prohibited from doing so by Rule 1.7, 1.8(c), 1. p. 9 9 or 2.2. represent a client when anyone of them practicing alone would be (a) While lawyers are associated in a firm, none ofthem shall knowingly

44. Rule 1.10(a) states: 43. At all relevant times, Justin was associated with Mr. Nadeau in the Nadeau Law Offices. 42. Allegations set forth above are incorporated by reference.

Rule 1.7(b). BA, and following Mr. Nadeau's January 11, 2005, letter to BA, constitutes a violation of 41. Mr. Nadeau's continued representation ofBA after the dispute arose between Justin and 1.7(b), that cannot be waived. See Kelly's Case, 137 N.H. 314, 31 p. 9 9 (1993). ineffectual, as the conflict was in the nature of a"fundamental conflict" under Rule 40. Even if Mr. Nadeau had secured a waiver of the conflict, any such waiver would be BA in the Tucker Cove matter. under the circumstances described herein, would not adversely affect his representation of 39. Mr. Nadeau could not reasonably believe that his decision to continue representing BA, p. 10 10 by Apri115, 2009. Mr. Nadeau is directed to write an apology to the complainant as provided in Public Censure with the understanding that Mr. Nadeau will resign from the New Hampshire Bar For all of the above reasons, the Professional Conduct Committee imposes a sanction of a

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 in accord with the ABA Center for Professional Responsibility, Standards for Imposing Lawyer Hampshire Supreme Court. See, e.g., Feld's Case, 149 N.H. 19,28 (2002). This sanction is also costs. This sanction is in accord with the purposes of attorney discipline as described by the New Hampshire Bar by April 15, 2009, and an apology to the complainant, and reimbursement of agreed upon sanction of a Public Censure accompanied by a resignation from the New therein is appropriate for the Rule violations as set forth above. Said Stipulation contains an concludes that the Stipulation dated October p. 10 10, 2008, shall be approved and that the sanction aforementioned findings and rulings, the Professional Conduct Committee, by majority vote, lengthy debate regarding the appropriate sanction to be imposed. Having made the Following a careful review of the record by the PCC panel members sitting, there was

a violation of N.H. R. Prof. Conduct 8.4(a). 49. In light of the above referenced violations of Rule 1.7 (b) and 1.1 O(a), there necessarily is

constitutes a violation of Rule 1. p. 10 10(a). (after Mr. Nadeau became aware of the nature of the dispute between Justin and BA) 48. Mr. Nadeau's continued and knowing representation ofBA in the Tucker's Cove case p. 11 11

File Richard Y. Uchida, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

January I~ 2009

Committee for the investigation and prosecution of this matter. Order, Mr. Nadeau is assessed all expenses and costs incurred by the Professional Conduct Disciplinary Counsel to monitor compliance with, and confirm said resignation. As part of this violation N.H. Rules of Professional Conduct: 1.7 (b); 1.lO(a); and 8.4(a). The PCC directs the Stipulation dated October 10, 2008. These sanctions are imposed based on Mr. Nadeau's proven by clear and convincing evidence and that he engaged in

p. 12 4. Thus, Mr. Nadeau agrees that the charges in the Notice of Charges are

issued on April 3, 2008.

Rules of Professional Conduct as charged in the Notice of Charges

in violations of Rules 1.7(b), 1.10(a) and 8.4(a) of the New Hampshire

Nadeau engaged in conduct constituting a conflict of interest, resulting

3. The Hearing Panel found clear and convincing evidence that Mr.

Report issued on July 14, 2008.

2. Mr. Nadeau accepts the findings of the Preliminary Hearing Panel

1. A hearing on the merits in this matter was held on July 3,2008.

captioned case.

Landya McCafferty, Esq., hereby submit this Stipulation in the above

Respondent, James P. Nadeau, Jr., Esq., and Disciplinary Counsel,

assistance and advice of counsel.

10. In entering into this Stipulation, Mr. Nadeau has received the

voluntarily, and he understands the consequences of this Stipulation.

9. Mr. Nadeau enters into this Stipulation freely, intelligently and

terms of this Stipulation.

8. Disciplinary Counsel shall monitor Mr. Nadeau's compliance with the

proof of the same on or before April 15, p. 13 2009.

William F. ("Rick, Sr.") Becksted, and to provide Disciplinary Counsel

7. Mr. Nadeau agrees to make a public and meaningful apology to

before April 15, p. 13 2009.

Nadeau's Affidavit in which he agrees to file his resignation on or

from the New Hampshire Bar. Attached to this Stipulation is Mr.

6. In addition to the Public Censure, Mr. Nadeau has agreed to resign

Professional Conduct.

the violation of Rules 1.7(b), 1.10(a) and 8.4(a) of the N.H. Rules of

for engaging in conduct constituting a conflict of interest, resulting in

5. The parties jointly propose that Mr. Nadeau shall be publicly censured

I. Stipulation as to Sanction

Conduct.

Rules 1. 7(b), 1.10(a) and 8.4(a) of the N.H. Rules of Professional

conduct constituting a conflict of interest, resulting in violations of p. 14 3

Dated: October IJl, 2008

Dated: October(a,2008

stipulated.

nonetheless hereafter bound to the facts and rule violations as

Stipulation as to Rule Violations and Sanction, Mr. Nadeau is

the Professional Conduct Committee does not agree with the

bound to the facts and rule violations as stipulated. In the event that

12. Mr. Nadeau understands that by signing this Stipulation, he is hereby

III. Effect of Stipulation

implement and enforce the conditions of this Stipulation.

matter, as well as in connection with any process required to

Conduct Committee in the investigation and prosecution of this

11. Mr. Nadeau agrees to pay the expenses incurred by the Professional

II. Stipulation as to Costs p. 15 4

of Rules 1.7(b), 1.10(a) and 8. p. 15 4(a) of the N.H. Rules of Professional Conduct.

result of a conflict of interest, I shall be publicly censured for the violations

near-even date (the"Stipulation"). In the Stipulation, I have agreed that as a

stipulation executed by my counsel, disciplinary counsel, and me at even or

3. I have freely, intelligently and voluntarily entered into a

Bar.

2. I am currently an attorney and member of the New Hampshire

captioned professional conduct complaint.

1. I am James P. Nadeau, Jr., the Respondent in the above-

entitled matter, and being duly sworn, deposes and says as follows:

NOW COMES James P. Nadeau, Jr., the Respondent in the above­

My Commission Expires June 27, 2012 RICHARD V. UCHIDA, ESQUIRE, Notary Public

My Commission Expires:

2008. / undersigned justice of the peace/notary public on this ~ day of October, Subscribed and sworn to by James P. Nadeau, Jr., before me, the

COUNTY OF -----L-.;Mf.m............,'-'-'m-""c\.'-"'G~=- ___ _ THE STATE OF NEW HAMPSHIRE

Dated: October It< 2008 B

intend to retire from the practice of law.

effective on April 1 p. 16 5, 2009, and I will not seek reinstatement to the Bar, as I

Hampshire Bar on or before April 1 p. 16 5, 2009. The resignation shall become

addition to the Public Censure, I shall submit my resignation from the New

4. I also understand that pursuant to the Stipulation, and in