Mary Notaris (2009)

Notaris to complete the legal work necessary for a co-guardianship. some time in the future when they might have more funds to pay for Ms. a co-guardianship for the children, but expressed a desire to wait until event of their death. Barbara and Brenda indicated an interest in pursuing documents, and a trust document that provided for their children in the their estate planning. Ms. Notaris drafted their Wills, power of attorney 3. In January 2003, Barbara and Brenda retained Ms. Notaris to assist them in

Barbara gave birth to two children through artificial insemination. relationship between 1996 and June 2006. During the relationship, 2. Barbara Pierce (the Complainant) and Brenda Smith were in a committed

Law Office, 45 Stiles Road, Unit 104, Salem, New Hampshire 03079. material to this proceeding, Ms. Notaris operated her law office as Notaris Ms. Notaris was admitted to practice on June 19, 1992. At all times 1. Ms. Notaris is an attorney licensed to practice law in New Hampshire.

facts by clear and convincing evidence. The Committee voted to accept the Stipulation as to the Facts, which established those

were recused. Hamel, James R. Martin and Marilyn Billings McNamara. Toni M. Gray and Richard H. Darling Chollet, David N. Cole, Thomas P. Connair, Alan 1. Cronheim, Gerald A. Daley, Gretchen Rule Members present included: Margaret H. Nelson, Chair, Benette Pizzimenti, Vice Chair, Susan R. On March 17, 2009, the Professional Conduct Committee deliberated the above matter.

Notaris, Maryadvs. Attorney Discipline Office # 07-059

Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole Marilyu 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'

cooperate with the refinancing unless she was made a co-guardian of the Brenda about this possibility, Brenda informed Barbara that she would not refinancing the house to purchase Brenda's interest. When Barbara told 12. During this time-frame, Barbara began to explore the possibility of

children in the event of death or incapacity. each retained a paragraph naming the other person as the guardian of the designated power of attorney. However, in those same documents, they their designated powers of attorney; each of them removed the other as the 11. In their new estate planning documents, Barbara and Brenda both changed

new power of attorney document, which Ms. Notaris had prepared. 10. On June 9, 2005, Brenda went to Ms. Notaris's office and executed her

jointly with Brenda. that meeting, Barbara expressed her intent to parent the two minor children separation and the former couple's plans regarding the children. During time, Ms. Notaris and Barbara had a discussion about the pending new power of attorney document, which Ms. Notaris had prepared. At that 9. On June 8, 2005, Barbara went to Ms. Notaris's office and executed her

other than Brenda. that she wanted to change her power of attorney and to designate someone 8. On June 7, 2005, Barbara telephoned Ms. Notaris's office and explained

on her power of attorney. of attorney so that Barbara was no longer listed as the designated person were breaking up. Brenda explained that she wanted to change her power that she and Barbara were experiencing problems in their relationship and 7. On or about June 5, 2005, Brenda telephoned Ms. Notaris and explained

guardianship. fact to Brenda. Rather, Barbara expressed agreement with the idea of a co­ 6. Barbara did not want the co-guardianship, but Barbara did not express that

finalized, so that her ability to co-parent the children was protected. agree to move out of the house unless a co-guardianship agreement was to move out of the house. Brenda explained to Barbara that she would not relationship, as she had begun dating someone else. Barbara asked Brenda 5. In early June 2005, Barbara informed Brenda that she wanted to end their

the refinancing of their jointly owned home. retained Ms. Notaris to handle a minor transaction related to the trust and 4. In or about December 2003 through January 2004, Barbara and Brenda p. 3 Page 3 of 14

guardianship. agreement insuring that Barbara would go through with the co­ final. Brenda conditioned her signature at the closing on a written had been signed, they had not been filed and the guardianship was not guaranteeing the co-guardianship. Although the guardianship petitions closing only if Barbara would sign a separate written agreement informed Barbara that she would sign the necessary paperwork at the 19. On the morning of the closing on the house, August 4, 2005, Brenda

each child) prepared by Ms. Notaris, on August 3, 2005. 18. Barbara and Brenda signed the guardianship petitions (one petition for

Brenda agreed to pursue a co-guardianship for the children. to Barbara. The draft Settlement Agreement also stated that Barbara and Brenda would sign a quitclaim deed transferring her interest in the house pay Brenda $18,000.00 for her share of the equity in the house and that 17. The draft Settlement Agreement specified, inter alia, that Barbara would

separation. Agreement" for Barbara and Brenda, which outlined the terms of their 16. At some point thereafter, Ms. Notaris prepared a draft"Settlement

agreement about drawing up a co-guardianship agreement. guardianship by Brenda. Ms. Notaris thought they were in complete mention anything about her feelings of being pressured into the co­ of being in agreement with respect to a co-guardianship. Barbara did not 15. During the meeting, Barbara and Brenda had all the outward appearances

separation. long as they were"in agreement" about how they wanted to handle their informed Barbara and Brenda that she could represent both of them so Notaris understood that they were ending their relationship. Ms. Notaris Ms. Notaris' office to discuss with her their plans for a guardianship. Ms. 14. In or about late June or early August 2005, Barbara and Brenda went to

Brenda's interest, and a closing was scheduled for August 4, 2005. 13. Barbara proceeded with arrangements to refinance the house and purchase

representation. respect to the real estate and the co-guardianship during the joint would testifY that she informed Ms. Notaris of Brenda's demand with demands with respect to the real estate and the co-guardianship. Barbara children. Ms. Notaris would testifY that she was unaware of Brenda's p. 4 Page 4 of 14

Notaris would testifY that, in advance of the November 1,2005, hearing, biological parent in this situation, Barbara had priority under the law. Ms. Notaris had not explained to either of them that, because Barbara was the guardianship rights. Both Barbara and Brenda would testifY that Ms. Brenda would have had a very high burden to overcome in order to acquire understanding or awareness that, had she objected to the guardianship, 28. Barbara would testifY that, prior to the hearing, Barbara had no

petitions, appointing Barbara and Brenda as co-guardians of the children. agreeing to the co-guardianship. Judge Cloutier granted the guardianship Barbara about the rights she was giving up, as the biological mother, in very short, lasting only 5-10 minutes. In chambers, Judge Cloutier queried 27. The hearing occurred entirely within Judge Cloutier's chambers, and was

Probate Court for the hearing on the guardianship petitions. 26. On November 1, 2005, Ms. Notaris appeared with Barbara and Brenda at

on the guardianship petitions for November 1,2005. 25. By order dated September 23,2005, the Probate Court scheduled a hearing

Agreement in front of a notary public. 24. On August 5, 2005, Barbara and Brenda signed the draft Settlement

County Probate Court. and her Appearance on behalf of Barbara and Brenda in Hillsborough 23. On or about August 4, 2005, Ms. Notaris filed the guardianship petitions

property to Barbara, and the closing went through as planned. 22. Ultimately, Brenda signed the quitclaim deed conveying her interest in the

concluded. Agreement" until some time after her representation of them had learn that Barbara and Brenda had actually executed the"Settlement draft Settlement Agreement to Barbara and Brenda. Ms. Notaris did not 21. On August 4, 2005, at 3:09 p.m., Ms. Notaris's office faxed a copy of the

closing later that day. "Settlement Agreement," see supra at ~ 15, in time for the real estate testifY that Barbara only informed her that she needed a copy of the draft of written agreement regarding the co-guardianship. Ms. Notaris would would not sign the necessary paperwork at the closing without some form 10:03 a.m. Barbara would testifY that she told Ms. Notaris that Brenda 20. After learning this, Barbara telephoned Ms. Notaris on August 4, 2005, at p. 5 Page 5 of 14

33. Rule 1.7(b), applicable at the time of Ms. Notaris's conduct states:

32. Factual findings set forth above are incorporated by reference.

those violations by clear and convincing evidence. Professional Conduct 1.7(b): Conflict ofInterest, and 8.4(a): Misconduct, which establishes The Committee voted to accept the Stipulation as to the violation of N.H. Rules of

petitions. interest at the time she advised Barbara with respect to the guardianship grounds that, inter alia, Ms. Notaris, was operating under a conflict of 31. In April of 2007, Barbara filed a motion to terminate the guardianship on

guardianship statute. superior rights as the biological parent of the children under the Hall, Esq., and later, Andrew J. Piela, Esq., that Barbara understood her 30. It was only after Barbara consulted with her new counsel, Margaret C.

2006, Ms. Notaris filed a withdrawal. Barbara and Brenda sought separate legal counsel. On November 16, 29. As a result of a subsequent dispute regarding custody of the children,

and Brenda. she adequately explained Barbara's superior legal rights to both Barbara p. 6 Page 6 of 14

Coffey'S Case, 152 N.H. at 513. The Standards set forth a four part analysis for courts to Although the Court has not adopted the Standards, it looks to them for guidance. marks omitted)."The sanction must take into account the severity of the misconduct." Id. similar conduct in the future." E.g., Coffey's Case, 152 N.H. 503, 513 (2005) (internal quotation maintain public confidence in the bar, preserve the integrity of the legal profession, and prevent be publically censured. The purpose of the Court's disciplinary power"is to protect the public, Imposing Lawyer Sanctions (2005) ("Standards") support the conclusion that Ms. Notaris should Both case law in New Hampshire and the American Bar Association's Standards/or

violation of N.H. R. Prof. Conduct 8.4(a). the above rule, there is necessarily clear and convincing evidence of a 40. Because there is clear and convincing evidence that Ms. Notaris violated

violation ofN. H. R. Prof. Conduct 1. 7(b). 39. Ms. Notaris's conduct constitutes clear and convincing evidence of a

circumstances constitutes an unwaiveable conflict of interest. 38. Ms. Notaris's representation of both Barbara and Brenda under these

conflicts carmot be waived). N.H. 314, 319 (1993) (holding that even with client consent, certain agree to the representation under the circumstances. See Kelly's Case, 137 disinterested lawyer would conclude that Barbara and Brenda should not 37. Even if Ms. Notaris had secured her clients' knowing consent, a

Notaris did not obtain the knowing consent of Barbara and Brenda. materially limited by her representation of the other. Moreover, Ms. reasonably have believed that her representation of one client would not be in their rights under the guardianship statute, Ms. Notaris could not negative consequences of the joint representation and, given the difference 36. Ms. Notaris did not advise Barbara and/or Brenda about the potential

35. In this case, Ms. Notaris violated that obligation.

free legal advice to her clients. 34. Pursuant to Rule 1.7(b), Ms. Notaris has an obligation to provide conflict­ p. 7 Page 7 of 14

apparent lack of outward conflict between them, Ms. Notaris acted negligently. She should have By ignoring the inherent conflict in her clients' relationship, and placing her trust in the being of the children. heterosexual couples) were uniquely able to place their self-interest aside and focus on the well­ of practicing family law, that lesbian couples who were"divorcing" one another (unlike were still together as a couple. Further, Ms. Notaris held a subjective belief, based on her years consistent with the position that they had expressed to Ms. Notaris at an earlier time, while they did not involve a conflict. In Ms. Notaris's view, their position on co-guardianship was about the co-guardianship, and that, as such, representing both of them in regard to guardianship Ms. Notaris genuinely believed that Barbara and Brenda were in complete agreement Conduct. Barbara and Brenda involved a conflict of interest, as defined by the Rules of Professional Notaris's mental state was negligent in that she failed to recognize that her representation of matter of law, Barbara held a superior position with respect to the co-guardianship petition. Ms. relationship between them brought on by the break-up. Ms. Notaris was also aware that, as a knowing in that, while representing Barbara and Brenda, Ms. Notaris was aware of the adverse state is best characterized as both knowing and negligent. Ms. Notaris's state of mind was The second prong requires analysis of Ms. Notaris's state of mind. Ms. Notaris's mental them with conflict-free representation. This is a fundamental duty. Under the first prong of the analysis, Ms. Notaris violated a duty to her clients to provide considers the effect of any aggravating or mitigating factors on the ultimate sanction."). whether they affect the baseline sanction. See id ("After determining the sanction, [the Court] 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 Wolterbeek's Case, 152 N.H. 710, 714 (2005) ("In The first three steps create the framework for characterizing the misconduct and or mitigating factors." Standard 3.0; Coffiy's Case, 152 N.H. at 513. potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating consider in imposing sanctions:"(a) the duty violated; (b) the lawyer's mental state; (c) the p. 8 Page 8 of 14

consent of client( s): 4.31 Disbarment is generally appropriate when a lawyer, without the informed

Avoid Conflicts ofInterest." That Standard provides: The applicable ABA Standard for a Rule 1.7 violation is Standard 4.3, entitled"Failure to the harm caused by her misconduct was serious. in the guardianship case, she engaged in a conflict of interest. Ms. Notaris further concedes that Ms. Notaris now understands and concedes that, by representing both Barbara and Brenda Brenda. who had no conflict of interest and whose loyalties were not divided between Barbara and respect to the co-guardianship, and that Barbara would have been better served by an attorney Ms. Notaris concedes that Barbara apparently did not properly understand her legal rights with guardianship issue, and that she did not oppose Ms. Notaris's joint representation. Nonetheless, Ms. Notaris claims that Barbara was aware of her superior legal status with respect to the emotionally draining for both Barbara and Brenda. for the co-guardianship Order. That litigation ended with a settlement, but it was costly and under an impermissible conflict of interest at the time she advised Barbara to petition the Court declared null and void due to the fact that Barbara's former attorney, Ms. Notaris, was operating Barbara's legal contentions in that legal proceeding was that the co-guardianship should be P.A., to represent her in an action to petition the Court to vacate the co-guardianship. One of Ultimately, Barbara had to retain a new attorney, Mr. Piela, of Hamblett & Kerrigan, never have agreed to grant Brenda co-equal status as guardian. been advised of the superior nature of her legal rights with respect to the guardianship, she would Notaris's misconduct. The harm in this case was serious. Barbara would testifY that, had she The third prong of the analysis requires an examination of the harm caused by Ms. harm to Barbara's legal status with respect to the guardianship of her children. however, as she did not intend to favor one client at the expense of the other or otherwise cause While clearly negligent, Ms. Notaris's mental state was not purposeful or intentional, one which neither client could waive. known that the demise of her clients' relationship caused an impermissible conflict of interest, p. 9 Page 9 of 14 2 Section 4.34 uses the term"Admonition." The most analogous sanction in New Hampshire is a Reprimand. 1 Section 4.33 uses the term"Reprimand." The most analogous sanction in New Hampshire is a Public Censure.

that section. Section 4.31 does not apply because Ms. Notaris had no intent to benefit herself, a key element of of conflict, but was negligent in not recognizing it and caused serious injury thereby). Case, 149 N.H. 132, 139-40 (2003) (applying section 4.33, where respondent should have known adversely affected Barbara, and her negligence caused serious injury to Barbara. See Shillen's Notaris was negligent in determining whether her representation of both Barbara and Brenda Considering the facts in this case, section 4.33 appears to be the most applicable. Ms.

no actual or potential injury to a client. the representation will adversely affect another client, and causes little or client may be materially affected by the lawyer's own interests, or whether instance of negligence in determining whether the representation of a 4:34 Admonition2 is generally appropriate when a lawyer engages in an isolated client. adversely affect another client, and causes injury or potential injury to a affected by the lawyer's own interests, or whether the representation will determining whether the representation of a client may be materially 4.33 Reprimand! is generally appropriate when a lawyer is negligent in conflict, and causes injury or potential injury to a client. interest and does not fully disclose to a client the possible effect of that 4.32 Suspension is generally appropriate when a lawyer knows of a conflict of another, and causes serious or potentially serious injury to a client. representation of a client with the intent to benefit the lawyer or adverse, and knowingly uses information relating to the which the interests of a present or former client are materially (c) represents a client in a matter substantially related to a matter in and causes serious or potentially serious injury to a client; or adverse interests with the intent to benefit the lawyer or another, (b) simultaneously represents clients that the lawyer knows have to the client; or lawyer or another, and causes serious or potentially serious injury interests are adverse to the client's with the intent to benefit the (a) engaged in representation of a client knowing that the lawyer's p. 10 Page 10 of 14

the future, even in a situation where the couple seems in agreement and expressly requests joint misconduct caused Barbara. Ms. Notaris has stated that she will not accept a case such as this in Third, and finally, Ms. Notaris has expressed genuine remorse for the harm that her and has maintained a cooperative attitude toward these proceedings. See Standards §9.32(e). Second, Ms. N otaris has made a full and free disclosure to the Attorney Discipline Office Nonetheless, her overall motivation was neither self-interested nor dishonest. failed to provide her clients with the equally laudable goal of conflict-free representation. continue jointly parenting the children) was protected by the law. Unfortunately, Ms. N otaris exception. Ms. Notaris's goal was to ensure that Barbara's and Brenda's stated objective (i.e., to providing legal services to gays and lesbians and protecting their civil rights. This case was no dishonest or selfish motive. To the contrary, Ms. Notaris's legal career has been devoted to There are several mitigating factors in this case. First, Ms. Notaris acted without a (failure to turn over client file). issued a Reprimand to Ms. Notaris for violations of Rules I.S(a) (excessive fee) and 1.16(d) history. See Standards §9.22(a). Specifically, in an Order dated June 11,2001, the Committee With respect to aggravating factors, there is only one. Ms. Notaris has a prior disciplinary A discussion of the aggravators and mitigators follows. N.H. at 139-40 (public censure appropriate baseline sanction for 1.7(a) violation). 4.33, a public censure appears to be the appropriate baseliue sanction. See Shillen's Case, 149 Based upon the first three prongs of the test, as well as the guidance provided by section instance of misconduct, that misconduct caused serious injury to Barbara. Notaris's representation of Barbara and Brenda in the guardianship may be considered one where the respondent's misconduct caused"little or no actual injury ...." Here, although Ms. Finally, section 4.34 does not appear applicable because that section is reserved for cases requires a showing of"serious" injury to the client, although serious i~ury is present in this case. appropriate as section 4.33 in providing a baseline sanction. Neither section 4.32 nor 4.33 should have been aware of the conflict but she was not. As such, section 4.32 is not as the conflict. Here Ms. Notaris did not believe she was engaged in a conflict of interest; she aware of the conflict of interest but have failed to advise the client of the possible side effects of Section 4.32 is, however, a closer call. Section 4.32 requires the respondent to have been p. 11 Page 11 of 14 File Russell F. Hilliard, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

Censure to the respondent. and 8.4(a) by clear and convincing evidence, the Professional Conduct Committee issues a Public Based on the above reasons, having found violations of N.H. R. Prof. Conduct 1.3; 1.4

associated with the investigation and prosecution of this matter. The Committee voted to accept the Stipulation as to Costs. Respondent shall pay all costs

discipline in New Hampshire. well as the mitigating factors in Ms. Notaris's case, and serves all of the goals of attorney Censure. This sanction gives significant weight to the seriousness of Ms. Notaris's misconduct as maintained, and the integrity of the legal profession can be preserved by imposing a Public Committee's view that the public can be protected, public confidence in the Bar can be Hampshire case law, and the purposes of attorney discipline in New Hampshire, it is the Taking into consideration the four-part analysis recommended by the Standards, New

e.g., id. A public censure in this case would serve the goals of attorney discipline. of attorney discipline are primarily to restore public confidence and to protect the public. See, of attorney discipline. See, e.g., Grew's Case, 156 N.H. 361,365 (2007). Rather, the purposes The New Hampshire Supreme Court has repeatedly stated that punishment is not a goal coupled with her desire not to repeat her misconduct are compelling mitigators. representation. Ms. Notaris has clearly learned from this experience. Her expression of remorse