Nancy S. Tierney (2009)

Nancy S. Tierney, 1 Court Street, Suite 360,Lebanon,New Hampshire 03766.

proceeding, Ms. Tierney has operated as a solepractitionerat the LawOfficeof

admitted to the New Hampshire Bar on June3,1986. At all times material to this

1. Respondent, Nancy S. Tierney,is a licensedNew Hampshire attorney who was

evidence(renumbered):

thefindingsoffactmadeby theHearingPanel,ashavingbeenfoundby clear andconvincing

reviewedthevoluminousrecordof thiscase.Upon deliberatingtheCommitteevotedtoaccept

In preparation for Oral Argument and for subsequent deliberations theCommittee

Chair, David N. Cole and Marilyn Billings McNamara were recused.

Martin.Richard H. Darling wasabsent.BenettePizzimenti,Vice Chair, Toni M. Gray, Vice

Susan R. Chollet, Alan J. Cronheim, GretchenRule Hamel, Gerald A. Daley and James R.

deliberatedthe above captioned matter. Members presentincluded:Margaret H. Nelson, Chair,

On February17,2009,theProfessionalConductCommitteeheard Oral Argument and

Tierney,Nancy advs.AttorneyDiscipline Office # 04-060

Alan J.Cronheim Holly B. Fazzino,Admin. Coordinator Thomas P.Connair * nonattorneymember DavidN. Cole MarilynBillingsMcNamara Susan R. Chollet* James R. Martin Toni M. Gray,* ViceChair 603-224-5828 ♦ Fax 228-9511 GretchenRule Hamel BenettePizzimenti,ViceChair Concord,New Hampshire03301 RichardH. Darling* MargaretH.Nelson,Chair 4 ChenellDrive,Suite102 GeraldA.Daley*

jurisdictional issues in theNew Hampshire andMassachusettsstate courts, she

whether his suit should be brought in state orfederalcourt. Anticipating

6. On July 14, 1998,Ms. Tierney wrote to Mr. Carbone to address the question

live in thebasement ofthe Danvers property.

and Lisa also delayed purchasinganew house, causing Mr. Carbone to have to

improvements toaccommodate Mr. Carbone.According to Mr. Carbone, Daniel

house and used themoney for purposes other thanbuyinga new house ormaking

defraudedhim. They allegedly took the proceedsofthe saleofMr. Carbone's

5. Mr. Carboneclaimed that Daniel and Lisa had breached the agreement and

apartmentfor Mr. Carbone.

respectivehomes and purchase anew one. The new house was toincludean

had given to Daniel and Lisa. The parties apparently had agreed to sell their

the proceedsofthe saleofhis house in Londonderry,New Hampshire,which he

4. Mr. Carbone sought to recover approximately $69,000, representing a portionof

thepursuitofMr. Carbone's claim onNovember 11, 1998.

3. Ms. Tierney and Mr. Carboneexecuted a contingency feeagreementrelatingto

Lisa Carbone ofDanvers, Massachusetts.

Ms. Tierney to pursue a claim againsthis son and daughter-in-law, Daniel and

2. In or about July,1998,AlfredCarboneofAllenstown, NewHampshire,retained

Street, Lebanon,New Hampshire.

Ms. Tierney'scurrentofficeaddressis Law OfficeofNancy S. Tierney, 29 School p. 3 Page 3 of25

allegation that Mr. Carbone had suffered $69,000 in damages.

exceeding$10,000,exclusiveofinterest and costs. It contained a specific

Court's diversityjurisdiction.The complaintallegedan amount incontroversy

United States DistrictCourtforthe DistrictofNew Hampshire,invoking the

11. On August 8,1998,Ms. Tierney filed a complaint against Daniel and Lisa in the

damages.

10. Mr. Carbone's claimappearedinitially toinvolveapproximately$20,000 in

case.

minimum damages required for subject matterjurisdiction in afederaldiversity

9. As a resultofthe foregoing, Ms. Tierney misapprehended the law pertaining to

experiencein federal litigation.

procedure; and she did not consult other counselwithcurrentknowledge and

law applicable todiversityjurisdiction; she did notconsultcurrent rulesoffederal

jurisdictionrequirementsin afederaldiversityaction; she did notconsultcurrent

was unaware oftheminimum levelofdamages required tosatisfysubjectmatter

8. Ms. Tierneyhad not previously represented a client in afederaldiversitycase;she

matter jurisdiction requirements in afederalcourtdiversityaction.

requirement that a certainlevelofdamages was required in orderto satisfy subject

requiredfor suit in federal court.She did notdiscusswith Mr. Carbone the

7. Ms. Tierney referredin her letterofJuly14,1998,to diversity jurisdiction

Hampshire.

recommended filing in theUnited StatesDistrictCourt for theDistrictofNew p. 4 Page 4 of25

defendantswas notaccompanied by a copyoftheunderlyingcomplaint.

under New Hampshire's Long-Arm Statute and that thesummons servedon

establish"minimum contacts"necessary topermitout-of-stateserviceofprocess

17. The defendantsdisputedpersonaljurisdictionon groundsthatplaintiffcouldnot

jurisdiction.

16. The defendants filed three motions to dismiss onSeptember 24, 1998,contesting

hiscase.

Mr. Carbone was not hearing what she was telling him about questions arising in

15. As the matter progressed,Ms.Tiemey recognizedthat, on a numberofoccasions,

Tierneytocommunicate with him in writing.

understanding Ms.Tierney'sexplanations about the case and he asked Ms.

impairmentfrom the outset. Mr.Carbonehad considerabledifficulty hearing and

attorney/client relationship with Ms. Tierney and Ms. Tierney was awareofsuch

14. Mr. Carbone was severely hearing impaired during the courseofhis

16, 1998.

13. Filing errors were corrected and Ms.Tiemey filed returnsofservice on September

currentversionofthe federalrules.

serviceofprocessby the United States Marshall, and that sheshouldconsulta

filing fee. Ms. Tierney was also advised that she had used anoutdatedform for

acceptanceofa personal check from Mr. Carbone tendered by Ms.Tierneyfor the

signaturepage on thecomplaintwas not signed andCourt rulesprecluded

12. The United StatesDistrictCourt Clerk'sofficerejectedthe filingbecause the

Court.However,the Clerk's office promptlyreturnedthepleadingto Ms.Tiemey

24. Ms. Tiemey sent her combined responsive pleadingto the United States District

jurisdictionandno personaljurisdictionin a combinedpleading.

motionstodismiss.She undertooktochallengeclaimsofno subjectmatter

23. On or about October2,1998,Ms. Tiemey drafted objections to the defendants'

acknowledged receiptofsuchinformation.

replacinghislaboratory.By messageofOctober5,1998,Ms. Tiemey

information relatingto the amountofdamages he claimed in connection with

22. On October 1, 1998,Ms. Tiemey sent a message to Mr. Carbone asking for

jurisdiction.

defendants hadchallengedthe complaint ongroundsthere was no subject-matter

21. Ms. Tiemey did not otherwisetimelyoreffectivelyinformMr. Carbone that the

jurisdiction.

thedefendantshadalsomoved to dismissthecomplaintforlackofsubject-matter

20. In her letterofSeptember 25,1998,Ms. Tiemey did not advise Mr. Carbone that

complaintwasattachedto the summons, andthat she was takingcareofthatissue.

defendantshad fileda "Motion to Dismiss" ongroundsthatno copyofthe

19. Ms. Tiemey wrotetoMr. Carboneon September25,1998,advisinghim thatthe

in controversyof$75,000, asrequiredundercurrentfederallaw.

establish subject matter jurisdiction because he did not claim aminimum amount

18. Defendants also moved to dismiss ongroundsthat Mr.Carbonehad failedto p. 6 Page 6 of25

to each ofdefendants'aforesaidmotions to dismiss;a Motion toVacate the

32. On October 27,1998, Ms. Tiemey filed aMotion forLate Entry,with Objections

theU.S. DistrictCourt Clerkto Ms.Tiemey.

31. CopiesofthereferencedordersofOctober 22 and23,1998, were forwardedby

30. Judgment was entered in favorofthedefendantson October 23,1998.

motions to dismisswere moot.

dismissal for lackofsubject matter jurisdiction, the Courtmled that the remaining

matterjurisdictionand, on that basis, it granted thatmotion. In lightofthe

foundthat no objection had been filed to the motion to dismiss for lackofsubject

29. On October 22,1998,the Court disposedofdefendants'motionsto dismiss. It

prejudiceor to request leaveofthe Courtto amend the complaint.

todefendants'motions todismiss,undertaketo file avoluntarynon-suitwithout

28. Nor did Ms. Tiemey, at any time priorto expirationofthe deadline for objecting

Court Rules.

objections to such motions, in compliance with applicable United States District

dismisswas defectiveand was rejected, Ms.Tiemey didnotthereafter filetimely

27. NotwithstandingtheClerk'snotice that her response todefendants'motionsto

to pendingmotions ...shall not becombined in one filing."

26. Rule 7.1ofthelocalUnited StatesDistrictCourt Rules providesthat"objections

25. Ms. Tiemey's aforesaidcombined responsive pleading was not accepted for filing.

dismisswas defectiveas to form and would notbe docketed.

and advised that hercombined filing in response todefendants'motionsto p. 7 Page 7 of25

would be granted and that the casewould be back on track.Nor did Ms.Tiemey

orders ofOctober 22 and 23 because she assumed thather motions ofOctober 27

39. In her October 30 correspondence, Ms.Tiemey made no referenceto theCourt's

case had been dismissed.

38. At thetimeofher correspondenceofOctober30,1998, Ms. Tiemey knew that the

motions todismissand enteringjudgment for thedefendants.

Court'srulings and ordersofOctober 22 and23,1998,grantingdefendants'

37. In her October 30,1998,correspondence,Ms. Tiemey made no reference to the

Dismiss and we have counteredwithObjectionsto saidMotions."

damages claimed. Shealsoadvised that "the other side has filed Motions to

processof"re-serving"the complaint forthe purposeofincreasingthe amountof

advise youofthe statusofyour case." Ms.Tiemey advised that she was in the

36. On October 30,1998,Ms. Tiemey wrote to Mr. Carbone stating, "I am writing to

23, and 29,1998.

35. Ms. Tiemey did notappealthe Court's aforesaid rulings and ordersofOctober 22,

Court'sorderswere forwarded toMs. Tiemey.

denied upon the Court'sfindingthat the "case has been dismissed." Copiesofthe

34. On October 29, 1998,eachofMs. Tiemey's motions (filedOctober 27) was

aforementionedfilingsofOctober27,1998.

33. Ms. Tiemey did not send copies to orotherwiseapprise Mr. Carboneofthe

claimed.

Judgment; and aMotion toAmend Complaint,to increase theamount ofdamages

exceeded $75,000, exclusiveofinterestand costs,with a revisedtotalclaim of

jurisdictiononce again, but, this time, alleged that theamount incontroversy

in theUnited StatesDistrictCourt in NewHampshire. She invokeddiversity

44. On December 9,1998,Ms. Tiemey undertook to refile Mr.Carbone'scomplaint

priorordersdismissingthe existing case.

claim would be served. Ms. LaBarre'slettermakes no referenceto theCourt's

server was appointed, Mr. Carbone's amended complaint with revised damages

to Mr.Carbone to"update"him on his case. Sheindicatedthat once a process

43. On November 25,1998,Ms. Tiemey'sparalegal assistant, Kristin LaBarre, wrote

apprise Mr. Carboneofthe dismissalofhis case.

she or her paralegal assistant, Kristin LaBarreotherwise timely or effectively

42. Ms. Tiemey did not send a copyofthe October29 order to Mr.Carbone.Nor did

Court'sorderand she understood thatMr. Carbone's case no longerexisted.

from theUnitedStates District Court (N.H.) docket. Ms.Tiemey received the

41. The Court'sorderofOctober29,1998,effectivelyeliminatedMr. Carbone'scase

motions.

October27, 1998, or(ifunaware ofsaid order) to theprospectsofsuccessofsuch

referenceto theCourt'sorderofOctober29, 1998,denying hermotions filed on

40. Ms. Tiemey's aforementionedcorrespondenceofOctober 30, 1998, made no

pretrialconferencescheduledat thebeginningofNovember.

apprise Mr. Carboneofthe extentofher most recent filings or to thepreliminary

along withher billforout-of-pocketexpenses.

pleadings addressing the questionofdismissal to Mr. Carbone on March31,1999,

50. Ms. Tiemey forwarded copiesofthe new, revised,complaintand the recent

Court ruledagainsther andfoundno personaljurisdiction in NewHampshire.

the case be transferredto theUnited StatesDistrictCourt inMassachusetts ifthis

49. Ms. Tiemey'sobjection to defendants' Motion to Dismiss contained a request that

applicable statuteoflimitations.

dismissalwas withoutprejudiceand thatthe newactionwas broughtwithin the

acknowledged that the casehad previouslybeen dismissed, butarguedthat the

"minimum contacts" under New Hampshire's LongArm Statute. Ms.Tiemey

48. In Ms. Tiemey'saforesaidmemorandum oflaw, sheaddressedthe issueof

Dismiss, along with a supporting memorandumoflaw.

47. Ms. Tiemey fileda timelyobjectiontodefendants'January20,1999,Motion to

no personaljurisdiction over the twoMassachusettsdefendants.

complaintin the U.S.DistrictCourtin NewHampshireon groundsthattherewas

46. On January20,1999,defendantsfileda Motion to Dismiss the new, revised,

Tiemey would schedule a meeting topreparefor thehearing.

defendants, that the Courtwould be issuing a noticeofhearing, and that Ms.

the case. She advised that the complaint had been successfully served on the

45. On January12,1999,Ms. LaBarrewroteagainto Mr.Carboneto "update" him on

process server.

$77,000. Ms.Tiemey alsomoved successfully forthe appointmentofa special

"indicating they believe the lawsuit should be brought in the United States District

received"notice"from theUnited StatesDistrictCourt inNew Hampshire

56. On April 9,1999,Ms. Tiemey wrote to Mr. Carbone. She told him that she had

officeon orbeforeApril13,1999.

8,1999. The April 8,1999,orderofjudgment was received by Ms.Tiemey's

55. Copiesof the April 5 and 7orderswerereceivedby Ms. Tiemey's officeon April

sent to Ms.Tiemey.

54. Copiesof the Court'saforesaidmling andordersofApril 5, 7, and8,1999,were

was enteredon April8,1999.

53. JudgmentforthedefendantsinUnitedStatesDistrictCourtin NewHampshire

statecourtofcompetentjurisdiction."

dismissedthe case "withoutprejudicetoplaintiffsright to reinstate his claim in a

jurisdictional issue decided by this court [citations omitted]." The Court

adjudicationof the merits[citationomitted],itconclusivelyresolvesthe

"although a dismissal for lackofsubject matterjurisdictiondoes not operate as an

the effectofthat mling simply by filing a new action." The Court made clear that

not to appeal the District Court's adversemlingin that action. He cannot avoid

fair opportunity to litigate the jurisdictional issue in the former action. He chose

52. The Court issued an order on April7,1999,as follows:"plaintiffhad a full and

plaintiffsclaim."

in lightofmy determination that the court lacks subject matterjurisdictionover

51. On April5,1999,the Court ruled that defendants' Motion to Dismiss was "moot

DistrictofNew Hampshire was dispositive.Counsel attachedto hismotion

jurisdictionand assertingthat the orderoftheUnited StatesDistrictCourt for the

DistrictCourt inMassachusetts,raising again theissueofsubjectmatter

60. On May 25,1999,the defendants filed a Motion to Dismiss in the United States

as an"originalproceeding."

such a motion. At the timeoffiling the complaint, Ms.Tiemey identified the case

from theUnited States District Court in NewHampshire. Ms. Tiemey did not file

moving the Court to waive the filing fee and to treat the matter as a transfer case

followed by a returnofservice dated May10,1999. Ms. Tiemey contemplated

1999)in the United States District Court for theDistrictofMassachusetts,

59. On April 30,1999,Ms. Tiemey filed Mr. Carbone's complaint (dated April 28,

Court'sordersofApril 5, 7, and8,1999,and Mr. Carbone denies receiving them.

"cc client",there is no other recordofsupplying Mr. Carbone with copiesofthe

58. While Ms. Tiemey'sfile copy of the orderofApril 5, 1999, contains the notation,

aforementionedrecentcourt orders or to theenclosureofany copiesthereof.

57. Ms. Tiemey's letterofApril 9, 1999, makes no reference to anyofthe

United StatesDistrictCourt to another "

Massachusetts.She described the process as"inessencea transferfrom one

court."Ms. Tiemey sought Mr.Carbone'sauthorityto file thecomplaintin

timecollectingfrom your sonifthe Order issued from aMassachusettsbased

"theCourt believesifwe are successful in thelitigation,you would have aneasier

Court for theDistrictofMassachusetts " She alsostatedherpresumptionthat p. 12 Page 12 of25

jurisdictional limits, but argued that the complaint and Mr.Carbone'smotion to

complaint filed in New Hampshirehad not alleged damages sufficient to satisfy

65. In her supporting memorandum of law, Ms.Tiemey,acknowledged that the initial

Carbone'scasedoes not fallwithinthediversityjurisdictionofany federalcourt.

jurisdictionalissuedecidedby thecourt[citationsomitted]."In otherwords,Mr.

adjudicationofthemerits,[citationsomitted],itconclusivelyresolvesthe

dismissalfor lackofsubject matterjurisdiction"doesnotoperateas an

to the court inMassachusetts.Rather, the Courtmade clearthatwhileits

April5 and 7,1999,thatitintended,ineffect,forjurisdictionalreasons,todefer

64. Therewas no suggestionby theUnitedStatesDistrictCourt (NH) in its ordersof

issue.

intentionoftheUnitedStates DistrictCourt's(NH) orders on thejurisdictional

63. In her Objection,asaforesaid,Ms. Tiemeymischaracterizedthe import or

Massachusetts."

adjudicatedby theHonorableUnitedStatesDistrictCourt for the District of

Hampshirehasdeclinedjurisdictionbelievingthatthe mattershould,instead,be

adjudicatedbut,rather,theHonorableUnitedStatesCourt for the Districtof New

62. In her Objection, Ms. Tiemey represented that "thismatterhas not been

memorandum oflaw on June 7,1999.

61. Ms. Tiemey filed anObjectionto plaintiffs' Motion to Dismiss and a supporting

dismiss, and theCourt'smling and ordersofApril 5, 7, and 8,1999.

copiesofthe complaints filed in NewHampshire,the defendants' motions to p. 13 Page 13 of25

schedulingconflicts,and that the Courtmight soon issue amling based on the

expeditiouslyas possible, that the hearing wasbeingrescheduled due to

31, 2000. Ms.Tiemey assured Mr. Carbone that the matter wasbeen handledas

inquire as to the statusofhis case, Ms.Tiemey wrote to Mr. Carbone on January

69. Followingnoticefrom the Court that Mr. Carbone had appearedpersonallyto

matterfor hearing on February2,2000.

Court in Massachusetts issued a scheduling order on January27, 2000, setting the

bankruptcyand related proceedings describedbelow,theUnited States District

68. Following a temporary stayofproceedingsdue toLisaCarbone's filingin

soundlybased on the record or the lawofthe case.

Court inMassachusettsin her aforesaidObjectionand memorandum were not

67. Ms. Tiemey's various arguments andrepresentationsto theUnited StatesDistrict

Tiemey had not takenan appeal.

adversemling (albeitwithoutprejudiceto a filing in state court), towhich Ms.

judgment and amend thecomplaintto cure thejurisdictionaldefect."Itissuedan

prejudice."In fact, the Court had"rejectedPlaintiffsattempttovacatethe

filed in federal court inNew Hampshire had not been"withdrawn without

66. Contrary to Ms.Tiemey's assertion, the initialcomplaintand motion to vacate

damages assessed.

that a second "action" had been filed inNew Hampshire correctly delineating the

vacate thecourt'sorderofdismissal had beenWithdrawn withoutprejudice,"and p. 14 Page 14 of25

had been "forwarded"to the EssexCounty SuperiorCourt. She made no

74. On July 14,1999,Ms. LaBarrewrotetoMr. Carbone,advisingthathiscomplaint

competentjurisdiction."

"withoutprejudicetoplaintiffsrighttoreinstatehis claimin astatecourtof

orderoftheUnited States District Court inNew Hampshire dismissingthe case

arguing,inpart,thatherclientwas proceedinginstatecourtinresponseto an

73. On July12,1999,Ms. Tiemeyfiledan objectionto theMotiontoDismiss,

Hampshire.

StatesDistrictCourt inMassachusettsthathad earlierbeen dismissedin New

caseandsoughtsanctions,citingthependencyofthe samematterin the United

72. Defendantspromptlyfileda MotiontoDismissthe EssexCountySuperiorCourt

July1,1999.

Daniel and Lisa Carbone in the EssexCounty,MassachusettsSuperior Court, on

stillpending,Ms. Tiemeyfiledacomplainton behalfofMr. Carboneagainst

71. While theproceedingsin theUnitedStatesDistrictCourtinMassachusettswere

was "dismissed withoutprejudiceto itsprosecutionin state court."

DistrictCourt in NewHampshire.Further,the Court ruled thatPlaintiffsclaim

jurisdictionalgrounds,citingtheearlieradversemling in theUnitedStates

Massachusetts issued an ordergrantingthe defendants' Motion to Dismiss on

70. On February9, 2000, the United States District Court for the Districtof

Carbone so directed.

documentsalreadyon file.Ms. Tiemey alsooffered to withdraw ascounselifMr. p. 15 Page 15 of25

Carbone in thebankruptcyproceeding.

79. Ms. Tiemey agreedtorepresentMr. Carbonein pursuitofhis claimagainstLisa

throughDefendant Daniel Carbone.

favorabletoLisa;and that Mr.Carbone'scase infederalcourt could proceed

requesta depositionofLisa;thattherewould be achancetoappeala courtfinding

Bankruptcy;that she would becontactingLisa'sattorney;that Ms.Tiemey would

She also reassured Mr. Carbone that Ms.Tiemey was intouchwiththeTmstee in

proceeding.She commented on Lisa Carbone's legal position in thatprocess.

78. On June 3,1999,Ms. LaBarrewrote to Mr.Carbone about the bankruptcy

copy ofwhich was sent to Ms.Tiemey.

Court,LisaCarbone filed a Motion to Dismiss and SuggestionofBankruptcy, a

77. In May 1999,whileMr. Carbone's case was still pending in United States District

Mr. Carbone to callwith questions.

Essex County Superior Court's mling on the Motion to Dismiss. Sheencouraged

Mr. Carbone a letter datedAugust 12,1999,attaching acopy ofthe aforesaid

76. In response to a call from Mr.Carboneto Ms.Tiemey'soffice,Ms. LaBarre faxed

jurisdictionalissue pending in theUnited States District Court inMassachusetts.

Motion to Dismiss, but stayed the proceeding pending resolutionofthe

75. On August 4,1999,the Essex County Superior Court denied thedefendants'

Court or to Ms.Tiemey's objection thereto.

referenceto theaforementionedMotionto Dismissin Essex CountySuperior p. 16 Page 16 of25

85. LisaCarbone was dischargedinbankmptcy on August 18,1999.

determination,ifany, not to file such pleadings.

proceeding,nor did she communicate with Mr. Carboneconcerningher

84. Ms. Tiemey did not file theaforementionedpleadings in the bankmptcy

1999.

due 30 days after the conclusionofthe meetingofcreditors scheduled for June 8,

August 9,1999. An Objectionto any exemptionsclaimed by Ms. Carbone was

Complaint ObjectiontoDischargeof the Debtor(Lisa Carbone) on or before

Deadlines issued May14,1999,Ms. Tiemey was required to file Mr. Carbone's

83. Pursuant to the NoticeofChapter 7 Bankmptcy, MeetingofCreditors &

County SuperiorCourt.

United StatesDistrictCourt case and went forward with thenew case inEssex

statutorystay, Ms.Tiemey delayeddroppingLisa Carbone as a defendantin the

82. Knowing that Lisa Carbone had filed for bankmptcy and, in spiteofthe automatic

courts.

2000. It also barredinitiationofnew claims against LisaCarbone in anyother

inUnited StatesDistrictCourt inMassachusetts,as amatteroflaw,untilJanuary

81. The bankmptcy filing and relatedproceedingstemporarilystayedtheproceedings

meetingofcreditorsand later filed anappearanceon behalfofMr. Carbone.

Carbone;she communicated with theTmstee inBankmptcy regardingthe first

use ofthehomestead exemptionand to opposedischargeofLisa'sdebt to Mr.

80. In connectionwith bankmptcy proceeding, Ms.Tiemey plannedtocontestLisa's p. 17 Page 17 of25

Court,advisingit as to the statusofthe variousproceedingsand askingthat the

91. By letterofFebruary 23, 2000, Ms.Tiemey wrote to theEssex County Superior

Motion toDismiss and granted the Motion forSanctionsagainst Ms.Tiemey.

90. On November 9,1999,the U.S.Bankmptcy Court deniedMs. Tiemey's aforesaid

United StatesDistrictCourt matter.

had filed thenecessarydocuments to release Lisa Carbone as adefendantin the

PetitioninBankmptcy. In that same pleading, Ms.Tiemey representedthat she

toDismiss,"requesting that the U.S.Bankmptcy Court dismissLisaCarbone's

violationofthe automatic stay, On October12,1999,Ms. Tiemey filed a"Motion

89. As an objectionto Mr. Carbone'smotion for sanctions related toRespondent's

Defendantin thependingUnited States District Court matter.

United StatesDistrictCourt to delete anyreferenceto Lisa Carbone as a

88. On September 22, 1999, Ms.Tiemey filed a Motion toAmend Pleadings in the

oftheautomaticstay.

havingproceededwitha new action inEssex County Superior Court inviolation

actionintheUnited StatesDistrictCourt forthe DistrictofMassachusetts and for

Bankmptcy Court against Mr. Carbone and Ms.Tiemey forhaving maintainedan

counsel filed aMotion forSanctionson August 23,1999, inUnited States

87. Followinga formal noticeby letterofAugust 9,1999, LisaCarbone'sbankmptcy

judgment and possiblyto avoid a discharge inbankmptcy.

connectionwith any oftheaforementionedcivilproceedings,so as to secure

86. Ms. Tiemey didnot pursueprejudgmentattachmentofLisa'srealpropertyin

any basisforthe Court'saction.

findingorexplanationofthe basis fordismissal,nor was Ms.Tiemey aware of

95. The aforementioned Essex County SuperiorCourt order contained no specific

copy oftheorder.

ADJUDGED that the action be and hereby isdismissed."Ms. Tiemey received a

2000, providingthat,upon considerationoftheaction,"itisORDERED AND

94. The Essex County Superior Court issued an "OrderofDismissal"dated April 26,

Tiemey's letterby theEssex County SuperiorCourt on March 17,2000.

Hampshire and in Massachusetts. Federal Express recordsconfirmreceiptofMs.

ofthe ordersofdismissalissuedby theUnited StatesDistrictCourts inNew

NoticeofStatusReview form, anothercopy ofher February 23 letter, andcopies

County SuperiorCourt via Federal Express. Ms.Tiemey includedthecompleted

93. Ms. Tiemey followed-upwith a letter dated March16,2000, sentto theEssex

had notreceivedher priorcorrespondence.

informationabout thestatusofthematter.Ms. Tiemey was advisedthat theCourt

Court to inquirewhetherit hadreceivedher letterofFebruary 23providing

92. Upon receipt ofthe March 14, 2000, Notice, Ms.Tiemey contacted the Superior

20 days, "a dismissal will enter and thedocketclosedout."

the parties.Accordingto the Notice, absent a response from theplaintiffwithin

StatusReview oftheDocket,"dated March 14,2000, requiringa responsefrom

case be broughtforward.The Essex County Superior Court issued a"Noticeof p. 19 Page 19 of25

pursuitofa claimin state court) couldproperlyhave servedas thebasisfor

whether the federal court ordersofdismissal (issued"withoutprejudice"to

"jurisdictionalissue" addressed by the federal courts, including the question

Court, such action would be costly and fruitless. She offered no analysisofthe

could appeal the SuperiorCourt'sorder to the Massachusetts Supreme Judicial

101. Inher letterofMay 4,2000,Ms. Tiemey advisedMr. Carbone that,while he

SuperiorCourt had followed suit.

DistrictCourt inMassachusettshad dismissedthe case, and that the EssexCounty

Court inNew Hampshire had "declinedjurisdiction,"that theUnited States

theproceduralhistoryofMr. Carbone'scase,notingthat theUnited StatesDistrict

Tiemey sentMr. Carbone a letterdatedMay 4,2000. Ms. Tiemey summarized

100. Upon receiptoftheorderofdismissalfrom theEssex County SuperiorCourt,Ms.

Tiemey. NeitherMs. Tiemey, nor Ms.LaBarre undertooksuch an inspection.

Mr. Carbone's case, wereopen to thepublicand availableforinspectionby Ms.

99. The Essex County Superior Court records,includinga docketsheetpertainingto

follows:"No response."

March 14,2000, NoticeofStatusReview form issuedin theCarbone case,as

98. Essex County SuperiorCourt records at the timecontaineda notationon the

for theEssex County SuperiorCourt order.

97. Ms. Tiemey did not file any additional pleadings to question or challenge the basis

orderrepresenteda finalmling on the merits.

96. Ms. Tiemey determined that the aforementioned Essex County SuperiorCourt's

many ofher written communications wereincompleteor inaccurate.

106. Ms. Tiemey did not consistentlycommunicatewith Mr.Carbonein writing and

communicate withhim in writing.

and understanding Ms.Tiemey'sexplanations and asked Ms.Tiemey to

105. Throughout therepresentation,Mr. Carbonehad considerabledifficultyhearing

and regarding thetime it was taking to recover on hisclaims.

tellinghim regardingtheir inability to proceed in any court against Lisa Carbone

was upset and unable to understand what Ms.Tiemey and Ms. LaBarre were

meeting withMr. Carbone at a diner inConcord to discussthecase. Mr.Carbone

104. On or about September 17,1999,Ms. Tiemey and Ms. LaBarre had a scheduled

and insistedon seeing her.

occurredwithout appointmentwhen Mr.Carboneappearedat Ms.Tiemey'soffice

the delays encountered in disposingofthe matter. Manyofthese meetings

seekingexplanationsasto whatwashappeningin his case andcomplainingabout

103. Duringthecourseoftherepresentation,Mr. Carboneoften met with Ms. Tiemey,

102. The attorney/client relationship ended in May 2000.

Mr. Carbone so desired.

caseto beheard."Ms. Tiemeyofferedtotransferthe file toanotherattorneyif

"everycourtwhichcouldhaveheardthematterhasquashedallattemptsforthe

dismissalofMr. Carbone'sclaiminstatecourt.Ms. Tiemeyconcludedonlythat p. 21 Page 21 of25

misled by Respondent'smischaracterizationsofthe facts on thestatusofhiscase.

Carbone was not keptproperlyinformed aboutthestatusoftheunderlyingmatter,and was also

deprivedofany reasonableopportunitytopursuehis claim andrecoverhis financial losses. Mr.

The Committee agreedwith AssistantDisciplinaryCounsel that Mr.Carbone was

was ofteninaccurateor incomplete.

recordingofdates and timesoftransmissionofinformation,and informationthat wasprovided

in writing, despite his request due to his severe hearing impairment. There was little or no

to forward copiesofimportant documents to Mr. Carbone, or otherwise communicate with him

Respondent was also grossly negligent in her communicationswith her client. She failed

that her lackofexperiencein certain areas could bring to her client.

she understood thecurrentlaw. Nor did she demonstrate an awareness ofthe substantialharm

courtpractice,and failedto seek thecounselofanothermore experiencedattorneyto ensurethat

CivilProcedure, lacked familiarity with the procedure and documents associated with the federal

negligentin herrepresentationofMr. Carbone.She failedto refer to the current FederalRulesof

The Committee found that the Respondent's misconduct was severe. She was grossly

Rule Prof. Conduct 8.4(c): Deceit, based on a failure to prove by clear and convincing evidence.

Misconduct. The Committee accepted the parties' recommended dismissalofa violationofN.H.

Competence;Rule1.3(a-b):Diligence;Rule1.4(a-c):Communication,andRule8.4(a):

evidence,thatRespondentviolatedthefollowingRules ofProfessionalConduct:Rule 1.1(a-c):

The Committee voted to make the following rulingsoflaw, by clear and convincing

II. RULINGS OF LAW p. 22 Page 22 of25

AlthoughNew Hampshirehasnotadoptedthe American Bar Association'sStandardsfor

recognizingalso that "(t)hesanctionmusttake intoaccountthe severityofthemisconduct." Id.

The Committeeendeavoredtoarriveat asanctionwhichwould accomplishthese ends,

in thefuture." E.g.,Coffey'sCase, 152 N.H. 503,513 (2005)[internalquotationmarksomitted].

confidencein the bar,preservetheintegrityof thelegalprofession,and prevent similarconduct

The purposeof the Court'sdisciplinarypower"is toprotectthepublic,maintainpublic

accept fullresponsibilityfor her actions.

1986.Finally,the Committeefoundespeciallytroublingthe Respondent'sunwillingnessto

aggravatingfactorwas theextentof theRespondent'sexperienceas apracticingattorneysince

clientsandtoattendtoroutinedetailsin herpracticedemonstratedadisturbingpattem.Another

historyconsiderable.The manyconcernsaboutherabilitytocommunicateeffectivelywith her

Withrespecttoaggravatingfactors,theCommitteefoundRespondent'spriordisciplinary

at the time deservingofmitigating consideration.

would have onthem. The CommitteefoundtheRespondent'spersonal andemotionalchallenges

was also mindfulofthe Respondent'scurrentclient base andofthe impact certain sanctions

support for the respondent and for the servicesprovided by her to other clients. The Committee

InconsideringmitigatingfactorstheCommitteetook into accountthe manylettersof

client.

and by failing to pursue otherappropriateremedies in civil proceedings to the detrimentofher

anddiligenceby failingto file timelyobjectionsandpleadingsincompliancewithfederalmles

The Committee further found that the Respondent was seriously lacking in promptness p. 23 Page 23 of25

Respondent's apparent need, as a solepractitioner,for assistance in certain aspectsofpractice.

time are taken into account,alternativesemerge. In addition, theCommittee recognizesthe

when the mitigating factorsoftheRespondent'sclient support and emotional stateofmind at the

protectthe publicand preservetheintegrityof the legalprofessionappearsreasonable.However,

unwillingnessto acknowledgeher misconduct are considered, a suspensionofat least a year to

When theaggravatingfactorsofthe Respondent's patternofbehavior and inabilityor

reasonable opportunity to pursue his claim or recover his financial losses.

client,failedto protect her client'sinterests,andsubsequentlydeprived her clientofany

attorneywiththeappropriateexpertise,failedtocommunicateeffectivelyoraccuratelywithher

recognizea lack of competenceinfederalcourtmatters,failed to seek assistancefrom an

this case issuspension.Respondenthad considerableexperienceas an attorneyyet failed to

The Committee agrees with Assistant DisciplinaryCounsel that the baseline sanction in

aggravatingor mitigating factors on the ultimate sanction. Id.

Coddington'sCase, 155 N.H. 66, 71 (2007). The Committee then considers the effectofany

Committee first categorizes therespondent'smisconduct, then identifies the appropriate sanction.

N.H. 503, 513 (2005)(internalquotationmarks omitted). Inapplyingthese factors the

(d) the existenceofaggravating or mitigating factors. Standards,supra § 3.0; Coffey'sCase, 152

lawyer'smental state; (c) the actual or potential injury caused by thelawyer'smisconduct; and

list the following factors to beconsideredin imposing sanctions: (a) the dutyviolated;(b) the

adopted the Standards the Court has considered them when imposing sanctions). The Standards

e.g.,Shillen'sCase, 149 N.H. 132, 139 (2003) (noting that although the Court has never formally

ImposingLawyerSanctions (2005) (Standards), the Committee looks to them for guidance. See, p. 24 Page 24 of25 RussellF. Hilliard,Esquire James L. Kruse, AssistantDisciplinaryCounsel Distribution:

suspensionofNancy S.Tiemey in the NewHampshireSupremeCourtasprovidedin thisOrder.

Therefore, the Committee directs Assistant Disciplinary Counsel to file a Petition for the

above.

b):Diligence;1.4(a-c):Communication,and 8.4(a):Misconduct,and otherconditionsnoted

year,suspendedfortwo years,forviolatingN.H. R. Prof.Conduct1.1(a-c):Competence;1.3(a-

HampshireSupremeCourtthatNancy S.Tiemeybesuspendedfrom thepracticeof lawfor one

For theabove reasonstheProfessionalConduct Committee recommends to theNew

prosecutionofthis matter.

with clients. Respondent shall be assessed all costs associated with the investigation and

assist respondentwith office practices and theeffective,prompt and accurate communication

own expense, to be approved by AssistantDisciplinaryCounsel. The roleofthe mentor will be to

for two years.The Committee furtherrecommends thatRespondent arrangefor amentor,ather

appropriate discipline in thismatteris a recommendation for a one yearsuspension,suspended

Having made theabove findingsand rulings, theCommittee concludesthat the

similarconductin the futurewhilepreservingthe integrityoftheprofession.

lengthyperiodofmentoringmay betterprotectthepublic,includingcurrentclients,and prevent

Consideringall these factors, theCommittee believes asuspendedsuspensioninvolvinga

File order. p. 26 confirmingthementor'sagreementtoperformtheservicesdescribedinthementoring DisciplineOffice(ADO). Ms. Tiemey'smentorshallexecuteamentoringagreement, years.The choiceofmentorshallbesubjecttotheapprovalof theAttorney member oftheNew HampshireBarserveasalawpracticementorforaperiodoftwo 1. Ms. Tierneyshallarrange,at herown expense,tohaveanattorneywho isan active

conditionsinclude: fora one yearsuspension,suspendedfor twoyearswithconditions.The recommended Upon consideration,theCommitteevotedtoaffirmtheMarch 12,2009,recommendation

Hamel was absent. Gray,DavidN. Cole,Thomas P.Connair,andMarilynBillingsMcNamara. GretchenRule RichardH.Darlingand JamesR. Martin.Members recusedwere:BenettePizzimenti,ToniM. presentincluded:MargaretH. Nelson,SusanR. Chollet,AlanJ.Cronheim,GeraldA. Daley, ConditionsforMentoring,andRespondent'sProposedConditionsforMentoring.Members MotionforClarificationandReconsideration,AssistantDisciplinaryCounsel'sProposed DisciplinaryCounsel'sMotionforclarificationand Reconsideration,Respondent'sResponseto On June 16,2009, theProfessionalConduct Committee deliberatedAssistant

Tierney,Nancy advs.AttorneyDisciplineOffice # 04-060

Alan J.Cronheim Holly B. Fazzino,Admin. Coordinator Thomas P. Connair * nonattorneymember David N. Cole Marilyn BillingsMcNamara Susan R. Chollet* James R. Martin Toni M. Gray,* Vice Chan- 603-224-5828 ♦ Fax 228-9511 Gretchen Rule Hamel Benette Pizzimenti,Vice Chair Concord, New Hampshire03301 RichardH. Darling* Margaret H. Nelson, Chair 4 Chenell Drive,Suite102 Gerald A. Daley*

p. 27 7. Ms. Tiemey shall provide her clients with timely updates which accurately describe as allcorrespondence,noticesand ordersissuedby the Court. pleadings,discoveryrequestsand materialssentand receivedby Ms. Tiemey, as well 6. Ms. Tiemey shallpromptlysupply herclientswith copiesofallcorrespondence, herfitnesstocontinueherpractice. assessmentofMs. Tiemey's performanceunderthe termsofthementoringorderand expectedto file a finalreportat the endoftheperiodofthismentoring orderwith an Tiemey's personalwell-beingand fitness topracticelaw. The mentor willalsobe may have aboutthecourseand conditionofMs. Tiemey's practice,includingMs. responseto anyclientcomplaintsor claims; and c) any issues orconcernsthementor compliance with theconditionsset forthherein;b) theexistenceofand Ms. Tiemey's 5. The mentor shall filequarterlyreports with the ADOaddressinga) Ms.Tiemey's timelyfilingofpleadingsand appropriatenessofacceptingcases. with Ms. Tiemey allmattersin the office toassurecompliance with courtrules, names in the firstinstancetopreserveclientconfidentiality.The mentor shallreview practiceand herfitness topracticelaw. The mentor'sreportshallnot identifyclient permittingthementor to discuss with the ADO any matterrelatingto Ms.Tiemey's performance under thismentoring order. Ms.Tiemey shallexecutea release availableatany reasonabletime todiscusswith theADO Ms. Tiemey's practiceand 4. The mentor willhave accessto Ms.Tiemey's clientfiles, andwillbe expectedtobe mentor in this regard. Ms. Tiemey shall promptly implement any reasonablerecommendationsmade by the management ofMs. Tiemey's practice,particularlyas it relates tolitigationmatters. 3. The mentor will be expected to make recommendationsdirected at improving the shall occur quarterly in the second year. Ms. Tiemey'sresponseto anyclientcomplaintsorclaimsagainsther. Themeetings on hercompliance with theconditionsset forth herein, as well as theexistenceofand first year to discuss matters relating to Ms.Tiemey'spractice, with particular focus 2. Ms. Tiemey shall meetwith the mentorin personat leastonce eachmonth duringthe p. 28 File RussellF. Hilliard,Esquire James L. Kruse,AssistantDisciplinaryCounsel Distribution:

September^ ,2009

implementationand enforcementofthementoringorder. 11. Ms. Tiemey shall be solely responsible for all costsincurredinconnectionwith the deems necessaryunder Rules 37 and 37A. 10. Nothingin this agreement limits theADO's ability to take any action that itotherwise regardingsanction. refer thematterto theNew Hampshire Supreme Court withrecommendations evidencewhy she should not be suspended. TheCommittee shall have thepower to hearing, Ms.Tiemey shall have the burdenofshowing by apreponderanceofthe request a show cause hearing on the alleged violation. At any such show cause shall alsoconstitutegrounds for the ADO to file areportto theCommittee and to 9. Ms. Tiemey's failure to comply with anyofthe provisionsofthementoringorder and review by theCommittee. In theeventofsuch a request,Ms. Tiemey shallbe entitledto anevidentiaryhearing has been stayedon conditionofMs. Tiemey's compliance with thementoring order. providethe basis for arequestby the ADO toimpose any periodofsuspensionthat violationofthe RulesofProfessional Conduct arising outofsuch complaint shall dispositionofany charge associatedwith such complaint. Any final adjudicationofa case, the termofthe mentoring order shall be extended pending the investigation and order, thecomplaintshall be processed by the ADO on an expedited basis. In such the mentoring order that arises outofevents that occurred following the dateofthe 8. In the event the ADO receives acomplaintagainst Ms.Tiemey during the periodof