Richard J. Walsh (2008)

detailed below.

convincing evidence. The Committee reiterates those factual findings and rulings oflaw as

convincing evidence, and acceptance of the Stipulation as to the Rule violations by clear and

the Committee's February 19,2008 Order accepting the Stipulation as to the facts by clear and

The Professional Conduct Committee thoroughly reviewed the record in this matter, including

Gretchen Rule Hamel and James R. Martin. Toni M. Gray was recused.

Vice Chair, Thomas P. Coni lair, Alful J. Croili'eim, Gerald A. Daley, Richard H. Darling,

matters. The Professional Conduct Committee members present included Benette Pizzimenti,

Counsel for the Attorney Disciplinary Office regarding the above referenced consolidated

Hilliard, Esquire, for Richard J. Walsh, Esquire, and La!ldya B. McCafferty, Disciplinary

On April 15, 2008, the Professional Conduct Committee heard oral arguments by Russell F.

Gerald A. Daley' Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney member Thomas P. Conoair James J. TellO, Jr. David N. Cole David N. Page' 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'

6. On or about July 28, 2000, Mr. Walsh filed an Appearance for John and Ms. Lynch.

case.

Ms. Lynch to Mr. Walsh's law firm, McDowell & Osburn, P.A. Mr. Walsh accepted the

5. In the summer of2000, Mr. Richelson relocated to North Carolina and referred John and

4. On July 21, 1999, James D. Gleason, Esq., filed an appearance on behalf ofCMC.

John and Ms. Lynch.

against CMC. The Writ alleged that CMC was negligent and it sought damages for both

mother, Lana Lynch, filed a Writ of Summons in Rockingham County Superior Court

3. On or about June 28, 1999, Andrew M. Richelson, Esq., counsel for John and John's

rocks that fell from a pile on the property.

property owned by Certified Mortgage Corp. ("CMC"). John's hand was crushed by

2. On April 18, 1999, John Taylor (then a minor) was seriously injured while playing on

New Hampshire 03102.

from January 25,2005 to the present -Attorney at Law, 212 Coolidge Street, Manchester,

PA; (b) from February 7, 2001 to January 25, 2005 -McDowell & Osburn, P.A.; and (c)

following addresses: (a) from June 1997 to February 7, 2001 -Joseph F. McDowell, III,

admitted to practice in 1976. At all times material to this proceeding, Mr. Walsh used the

I. Mr. Walsh is an attorney licensed to practice law in New Hampshire. Mr. Walsh was

Walsh, Richard J. advs. Attorney Discipline Office # 05-053 (TAYLOR)

factual findings by clear and convincing evidence:

The Professional Conduct Committee has determined that the record supports the following

I. FACTUAL FINDINGS p. 3 Page 3 of22

status of this matter. Since that time, I have left at least three By letter of six months ago, I requested an update on the

14. In a letter to Mr. Walsh dated February 25, 2002, Mr. Richelson wrote:

then again until October 28, 2002.

13. Meanwhile, the trial was once again continued by agreement until September 2002, and

the case. Mr. Walsh did not respond to Mr. Richelson's September 26 letter.

of the case. Mr. Richelson indicated in the letter that Mr. Clivio had been inquiring about

12. In a letter to Mr. Walsh dated September 26, 2001, Mr. Richelson inquired as to the status

Mr. Walsh.

was happening with the lawsuit. Apparently, Ms. Lynch was having difficulty reaching

II. Mr. Clivio began telephoning Mr. Richelson in the Fall of2001, and inquiring as to what

case.

Clivio, Mr. Richelson was kept informed by Mr. Clivio as to what was happening in the

10. Because of Mr. Richelson's longstanding relationship with Ms. Lynch's father, Robert

the pending case, the Court again continued the trial until February 19, 2002.

allow him to file lawsuits against other defendants and to consolidate those lawsuits with

9. As a result of a subsequent request from Mr. Walsh to further extend the time for trial to

8. The Court granted that motion and trial was rescheduled for the week of April 30, 2001.

pending case.

bringing suit against additional defendants and consolidating such actions with the

indicated that his clients needed a continuance so that he could explore the possibility of

to Continue Trial Management Conference and Jury Trial." In that pleading, Mr. Walsh

7. On or about December 22,2000, Mr. Walsh filed a pleading entitled,"Plaintiffs Motion p. 4 Page 4 of22

optimistic that your sense of common courtesy will soon motivate reflect that the settlement draft has not yet been negotiated. I am messages on your answering machine. Specifically, our records Kindly permit this letter to confirm my recent telephone

18. In a letter to Mr. Walsh dated September 11,2003, Mr. Gleason wrote:

lawsuits against potentially liable defendants. Ms. Lynch agreed to do this.

17. Mr. Walsh persuaded Ms. Lynch to allow him to use the $13,000.00 to fund other

$13,000.00, made payable to Mr. Walsh.

16. On May 14,2003, Mr. Gleason forwarded to Mr. Walsh a settlement check for

case.

On or about May 8, 2003, the parties jointly filed a request with the Court to close the

15. On or about October 25, 2002, the parties negotiated a settlement of the pending lawsuit.

with my client. abreast of t.l].ese matters a..11d continue to C01!1., ... t.llU!'icate intelligently settlement prospects, etc. so that I, as referring attorney, may stay trial status, the current defendants, the insurance coverage, the on the matter, I would most appreciate your filling me in on the causing alarm. Although I am sure that you are working diligently reports to me that Lana has also heard little from you, and this is me to be able to advise them of the progress in their case. Bob John) and Bob Clivio, their father/grandfather, it is important for Given my lengthy relationship with the plaintiffs (Lana and

consolidation of the matters, or the rescheduling of the trials. the additional defendants, the status of their actions, the appraised ofthe developments, I have had no update from you as to Although as referring attorney, I believe that I should be kept 2002 to allow you time to file suit against two other defendants. dated April 19, 2001, trial was to be rescheduled until February 19, In reviewing the file, it is my understanding that by order

know, to date, I have heard nothing from you. telephone messages for you making the same request. As you p. 5 Page 5 of22 On January 20, 2004, I explained to your secretary Laurie

status of the settlement check:

21. In a letter to Mr. Walsh dated January 22, 2004, Mr. Gleason again inquired as to the

reaching Mr. Walsh.

Richelson to seek his assistance and advice with respect to his daughter's difficulties

lawsuits, all of which went unanswered. On an ongoing basis, Mr. Clivio telephoned Mr.

numerous voicemail messages for Mr. Walsh inquiring about the status of the other

20. Following the settlement, Ms. Lynch had difficulty reaching Mr. Walsh. Ms. Lynch left

!v1r. Walsh did not respond to that letter.

finds you and your family well during this holiday season. I look forward to hearing from you, and I hope this letter

me to converse knowledgeably with my client. ~~v .u_v~.""'"...,.L ................0.""", .1.......LJ VU..l .... .I..L.LJ.v ......... .l I..l.L VlI.L ....l ........ .1 VVVl,.llU« .lVVY thp npur rlp-fpnrlarnto anrl arnu nth"" ... ~n"A~at;on "''IT'h~,",'h..'t1AHlr1 "'11 ........... , settlement, which I trust will yield a small legal fee, filings against matter, including forwarding to me information regarding the prior Could you please give me an up-date as to the status of this

nuisance. Has any of that been accomplished? contractor who deposited the stones creating the attractive defendants, including the condo association, the builder, and the Certified Mortgage matter and were going to pursue the other When we last spoke, over a year ago, you had settled the

19. In a letter to Mr. Walsh dated December 23, 2003,Mr. Richelson wrote:

Mr. Walsh did not respond to that letter.

you to return my numerous phone calls with an explanation. p. 6 Page 6 of22 progress on this matter. You settled a portion of the case but have most concerned that your silence does not bode well for the awaiting information and replies to my contacts. However, I am Over the past three years I have been most patient with you

Lana's phone calls either. when you left your former position, you have failed to return any of the phone call asking for permission to take this case with you with my client's father, I am informed that with the exception of of communication makes that impossible. Further, in speaking obligation to my client to be informed as to the case, and your lack continue to ignore my inquiries. As referring attorney, I feel an have called you, left messages, and written, all to no avail. You It has now been over a year since we last spoke. Again, I

23. In a letter to Mr. Walsh dated March 15,2005, Mr. Richelson wrote:

Mr. Walsh did not answer this letter.

soon as possible. Would you please update me on the progress of this case as

recouullended you to th.em. to explain your lack of communication when I was the person who them updates on the progress of this matter and when I have to try relationship with the client, it is embarrassing that I carmot give counsel who has a significant interest in this matter, and given my six months ago, but have yet to receive a reply. As referring Enclosed please find a copy of a letter that I wrote to you

22. In a letter to Mr. Walsh dated June 5, 2004, Mr. Richelson requested an update:

Mr. Walsh did not respond to this letter.

me of your fmdings. check your records to determine the status of that check and advise being returned. Again, I would greatly appreciate it if you could that our records do not yet show our May 31, 2003, check to you as p. 7 Please see that this matter is resolved immediately. Further

settlement funds. quite reasonable, and clearly, she and her son are entitled to the request that you cease being attorney for her and her son seems action on your part on this matter over the past three years, her the entire amount of the settlement. Given the obvious lack of requested that you return the entire file directly to her along with PCC be notified of your actions, please be advised that she has the same lack of communication, and given her request that the requests for updates on this file. However, as Lana has received and disappointed that you have refused to respond to any of my Please let me say that I am extremely surprised, saddened,

25. In a letter to Mr. Walsh dated April 29, 2005, Mr. Richelson wrote:

the matter to the Attorney Discipline Office.

24. Having received no response from Mr. Walsh, on April 15, 2005, Mr. Richelson referred

update on the status of the matter.

Mr. Walsh did not respond to this letter, nor did he contact Ms. Lynch to give her an

of the Due Diligence requirements also. with reasonable requests for information", and may be in violation informed about the status of the matter" and "promptly comply the CPR which call for an attorney to"keep the client reasonably Conduct Committee as you have grossly violated the mandates of over the last three years, my next letter will be to the Professional does not show that satisfactory progress has been made in the case if this information is not received by the end ofthis month, and progress you are making. As patience has run out, be advised that Lana and me the opportunity to be reasonably informed of the the new defendants, and any other information which would allow settlement, which I trust will yield a small legal fee, filings against matter, including forwarding to me information regarding the prior client a lengthy and comprehensive up-date as to the status of this At this juncture, I must demand that you give me and your

litigation purposes. indicated whether or how the retained funds have been used for pursuant to our agreement. However, you have also never never distributed any of the funds, either to the client or to me p. 8 Page 8 of22

I wish you and Jon the very best for the future.

respect to any aspect of this matter, I am ready and willing to do so. Ifthere is anything I can do to help your new counsel with

Limitations, RSA 508:8. birthday), or they will be barred by the applicable Statute of September 29,2007 (i.e., within two (2) years of Jon's eighteenth should note that any such action(s) must be commenced before on Jon's behalf in connection vlith this matter. In this regard, you other counsel with respect to any additional suits that may be filed I assume that you will be contacting Atty. Richelson andlor

Mr. Walsh wrote:

account which Mr. V/alsh had never negotiated. At t.'e close of his letter to ~v1s. Lynch,

Ms. Lynch enclosing the file, as well as the $13,000.00 check from Mr. Gleason's trust

With that letter, Mr. Walsh attached a copy of correspondence dated June 27, 2005, to

requires fLlrther itlformation or action on my Pfu-t. I trust this will be satisfactory. Please advise if your office

andlor new counsel will attend to this aspect. deposited. I assume that either Mrs. Lynch, Atty. Richelson, Gleason's office can verifY that this item was never negotiated or with a copy of the Trust Account Check referenced in same. Atty. date to Mrs. Lana Lynch, which I believe is self-explanatory, along I respectfully enclose a copy of my conespondence of even

27. In a letter to Mr. DeHart dated June 27, 2005, Mr. Walsh wrote:

docketed a fonnal complaint against him on the basis of Mr. Richelson's referral.

Attorney Discipline Office, infonned Mr. Walsh that the Attorney Discipline Office had

26. In a letter to Mr. Walsh dated May 26, 2005, James L. DeHart, General Counsel of the

already unpleasant situation. delay or obfuscation on your part will only serve to exacerbate an p. 9 Page 9 of22

message for Mr. Walsh, but Mr. Walsh answered the call.

summer of 200S, after business hours. Mr. Kossuth expected to leave another voicemail

36. Having received no return call, Mr. Kossuth telephoned Mr. Walsh sometime in the late

messages seeking a return call from Mr. Walsh.

3S. In the late summer of200S, Mr. Kossuth called Mr. Walsh's office and left several

about the case from Mr. Walsh.

34. The spring and summer of200S passed without Mr. Kossuth hearing anything further

summer of200S.

33. Mr. Walsh had informed Mr. Kossuth that the case would likely be settled in the spring or

GEICO's attorney, Richard E. Mills, Esq., took the deposition.

32. On November 29,2004, Mr. Kossuth gave a deposition in the case at Mr. Walsh's office.

arbitration" letter, which Mr. Walsh sent to GEICO on or about December 11,2003.

Walsh began negotiations with GEICO. These negotiations culminated in a"demand for

31. After obtaining the necessary documentary and other evidence regarding the claim, Mr.

from Mr. Kossuth and enclosed a copy of the contingent fee agreement.

30. In a letter to Mr. Kossuth dated May 20, 2000, Mr. Walsh requested certain information

motorist claim against GEICO, Mr. Kossuth's carrier.

29. On May 9, 2000, Mr. Kossuth engaged Mr. Walsh to represent him on an uninsured

accident with an uninsured motorist.

28. On or about February 13, 1999, David Kossuth (the Complainant), was involved in a car

Walsh, Richard J. advs. David Kossuth # 07-022 p. 10 $15,000

hearing and be done with same once and for all. of dates that we can work with to get this matter scheduled for be true for the month of June, so I think there are certainly plenty entire month of May is pretty wide open as well. The same would time, the last week of April looks good for me and virtually the arbitration once and for all. In this regard, at least at the present convenient to your calendar for the scheduling of this matter for matter and provide me with dates and times that would be supply me with the identity of your choice as arbitrator in this any party-selected arbitrator has been named by your side so please and to call the arbitration panel, but my file does not indicate that undertake the necessary steps to schedule this matter for arbitration so before the summer months. In this regard, I am quite willing to necessary to schedule this matter for arbitration and to hopefully do been forthcoming. Accordingly, I want to take whatever steps are formulate a meaningful settlement offer in this matter, but none has you are certainly in receipt of all information necessary in order to my client to answer interrogatories and to take his deposition, and At this point, your company has had the benefit of requiring

close. rectifY this situation and bring this uninsured motorist (UM) to a responsibility, and I want to take all steps necessary at this time to This matter has been dormant for too long for which I take

Mr. Walsh wrote:

Mr. Walsh, Mr. Walsh forwarded a letter dated February 21,2006, to Mr. Mills, in which

39. Mr. Walsh did return one of these messages. Following Mr. Kossuth's conversation with

over a three-month time period, requesting a call back.

case. Mr. Kossuth began leaving voicemail messages on Mr. Walsh's answering machine

38. Near the end of2005, Mr. Kossuth had heard nothing further from Mr. Walsh about the

would move forward on scheduling a date for the arbitration.

he could get $14,000 - in arbitration. Mr. Walsh informed Mr. Kossuth that he

expenses. Mr. Walsh wanted to take the case to arbitration because Mr. Walsh believed

37. Mr. Walsh informed Mr. Kossuth that GEICO was only offering to pay for medical p. 11 Page 11 of22

I need to settle this case.

there's been no movement towards getting there. October of 2006 and we still have not gone to arbitration and arbitration, by the spring, or summer the latest, of 2005. This is Geico's lawyer. At that time you said the case would be settled, by and we had a deposition hearing on November 29, 2004 with arbitration. All the necessary documentation has been obtained Right from our first conversation you said you wanted to go to

When are we going bring my case to settlement?

2006. In that letter, Mr. Kossuth wrote:

sent Mr. Walsh a letter via Federal Express, which Mr. Walsh received on October 13,

43. On October 12,2006, having heard nothing in response from Mr. Walsh, Mr. Kossuth

a voicemail messageonMJ.Walsh.smlswering machine requesting a return call.

42. On August 18, 2006, having heard nothing in response from Mr. Walsh, Mr. Kossuth left

When are we going to move forward? Dave."

Mills with the following handwritten notations:"Rick, I'd really like to resolve this.

telefaxed to Mr. Walsh's office a copy ofMr. Walsh's February 21, 2006, letter to Mr.

41. On August 10, 2006, having heard nothing further from Mr. Walsh, Mr. Kossuth

something further about the case from Mr. Walsh.

40. Following the February 21, 2006, letter to Mr. Mills, Mr. Kossuth again waited to hear

selection of the arbitration panel and get this matter behind us. glad to hear from them or you. Otherwise, let's complete the wishes to contact me to indicate an offer on this file, I would be terms of an offer, so if either you or their claims representative 2003), to which no formal response was ever made by GEICO in matter dating back quite some time (see letter dated October 27, My file indicates that we have a settlement demand in this p. 12 Page 12 of22

Writ filed by Mr. Richelson.

c1aim(s) against potentially liable defendants other than CMC, the defendant named in the

take substantive legal action on behalf of his clients, John and Ms. Lynch, to pursue their

47. As explained above, from July 28, 2000, through June 27,2005, Mr. Walsh neglected to

46. The facts set forth above are incorporated by reference.

Walsh, Richard J. advs. Attorney Discipline Office # 05-053 (TAYLOR)

violated the Rules of Professional Conduct as follows:

Conduct Committee concludes that there is clear and convincing evidence that Richard J. Walsh

The above-listed facts having been found by clear and convincing evidence, the Professional

Kossuth of $20,000.

arbitration. On or about June 5, 2007, Mr. Walsh secured an arbitration award for Mr.

communications with him, trained his focus on the case, and moved the case toward

45. Beginning with a letter to Mr. Kossuth dated December 15,2006, Mr. Walsh resumed

failures to communicate with him about his case.

asserted allegations of professional misconduct against Mr. Walsh for Mr. Walsh's

Kossuth filed a grievance with the Attorney Discipline Office in which Ms. Kossuth

44. On or about December 9, 2006, having heard nothing in response from Mr. Walsh, Mr. p. 13 Page 13 of22

for information on Ms. Lynch's behalf.

Walsh. Mr. Walsh failed to respond to Mr. Richelson's repeated and reasonable requests

55. Ms. Lynch sought the assistance ofMr. Richelson in her communications with Mr.

repeated requests for an update on the status of her case.

relationship in April 2005, Mr. Walsh failed to respond to Ms. Lynch's reasonable and

communication from Mr. Walsh. From the Fall of2001 through the termination of their

54. Beginning in the Fall of2001, Ms. Lynch had difficulties receiving any form of

53. The facts set forth above are incorporated by reference.

violation of N.H. R. Prof. Conduct 1.3(a).

52. Mr. Walsh's failures in these regards constitute clear and convincing evidence of a

caused avoidable harm to their lawyer-client relationship.

51. Mr. Walsh's failure to act with reasonable promptness and diligence on his clients' behalf

promptuess and diligence on behalf of his clients.

50. Mr. Walsh's conduct as described above constitutes a failure to act with reasonable

interest-bearing account for the benefit of his clients.

14,2003. Mr. Walsh never negotiated the check, nor did he place the check into an

Walsh treated the $13,000.00 settlement check. Mr. Walsh received the check on May

49. Mr. Walsh further neglected John and Ms. Lynch's case in the manner in which Mr.

former counsel, Mr. Richelson.

communicate both with opposing counsel, Mr. Gleason, and with John and Ms. Lynch's

48. Mr. Walsh's neglect of John and Ms. Lynch's case carried over into his failure to p. 14 Page 14 of22

violation of a violation of N.H. R. Prof. Conduct l.4(a).

63. Mr. Walsh's conduct in this regard constitutes clear and convincing evidence of a

addressed the communication problems, and brought Mr. Kossuth's case to closure.

Attorney Discipline Office that Mr. Walsh trained his focus on Mr. Kossuth's case,

62. It was only after Mr. Kossuth filed a fonnal complaint against Mr. Walsh with the

described more fully above).

pendency ofMr. Kossuth's case (from the Spring of2005 through December 9,2006, as

inquiries and otherwise to communicate with Mr. Kossuth at various intervals during the

61. Mr. Walsh violated these obligations by failing timely to respond to Mr. Kossuth's

his case and to promptly comply with reasonable requests for infonnation.

60. Mr. Walsh had a duty to keep Mr. Kossuth reasonably infonned regarding the status of

59. The facts set forth above are incorporated by reference.

Walsh, Richard J. advs. David Kossuth # 07-022

violation of N.H. R. Prof. Conduct 1.4(a)-(c).

58. Mr. Walsh's conduct in this regard constitutes clear and convincing evidence of a

reasonable requests for infonnation.

on Ms. Lynch's behalf, Mr. Walsh failed to promptly comply with Ms. Lynch's

57. By failing to respond to respond to Mr. Richelson's letters and requests for infonnation

infonned regarding the status of her legal matters.

56. By failing to communicate with Ms. Lynch, Mr. Walsh failed to keep her reasonably p. 15 Page 15 of22

and comply with all recommendations of the auditor.

component of the sanction will require Mr. Walsh to undergo an office management audit

diversion will serve the purposes of attorney discipline. The mandatory diversion

mandatory diversion under Rule 37A(I)(g)(I). A public censure with mandatory

65. A public censure is the appropriate sanction in these matters, accompanied by a

these Standards, the Court has"considered them when imposing sanctions").

Case, 149 N.H. 132, 139 (2003) (noting that, although the Court has never formally adopted

Professional Responsibility, Standards for Imposing Lawyer Sanctions (1991). See,~, Shillen's

",F",el",d",'s,-C""",as",e, 149 NH 19, 28 (2002). This sanction is also in accord with the A AA Center for

purposes of attorney discipline as described by the New Hampshire Supreme Court. See, ~,

censure with mandatory diversion as set forth below. This sanction is in accord with the

Stipulation as to sanction and concludes that the appropriate discipline in this matter is a public

findings and rulings, the Professional Conduct Committee, by majority vote, accepted the

debate regarding the appropriate sanction to be imposed. Having made the aforementioned

Following a careful review of the record by the PCC panel members sitting, there was a lengthy

Conduct 8.4(a).

rules, there is necessarily clear and convincing evidence of a violation ofN.H. R. Prof.

64. Because there exists clear and convincing evidence that Mr. Walsh violated the above

factors on the ultimate sanction").

determining the sanction, [the Court] considers the effect of any aggravating or mitigating

mitigating factors and whether they affect the baseline sanction. See id. ("After

then looks to the fourth and final step in the analysis: the existence of any aggravating or

identifY the appropriate sanction"). Once the baseline sanction is determined, the Court

applying these factors, the first step is to categorize the respondent's misconduct and

determining a baseline sanction. See Wolterbeek's Case, 152 N.H. 710, 714 (2005) ("In

69. The first three steps create the framework for characterizing the misconduct and

aggravating or mitigating factors." Standards § 3.0; Coffev's Case, 152 N.H. at 513.

the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of

consider in imposing sanctions:"(a) the duty violated; (b) the lawyer's mental state; (c)

Coffey's Case, 152 N.H. at 513. The Standards set forth a four part analysis for courts to

68. 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.

conduct in the future." ~, Coffey's Case, 152 N.H. 503, 513 (2005) (internal quotation

confidence in the bar, preserve the integrity of the legal profession, and prevent similar

67. The purpose of the Court's disciplinary power"is to protect the public, maintain public

should be publicly censured and required to undergo an office management audit.

Imposing Lawyer Sanctions (1992) ("Standards") support the conclusion that Mr. Walsh

66. Both case law in New Hampshire and the American Bar Association's Standards for p. 17 Page 17 of22

Censure.] the most analogous sanction in New Hampshire is a Public a client. [Note: Section 4.43 uses the term"Reprimand"; representing a client, and causes injury or potential injury to negligent and does not act with reasonable diligence in 4.43 Reprimand is generally appropriate when a lawyer is

4.42 Suspension is generally appropriate when:

4.41 Disbarment is generally appropriate when:

reasonable diligence and promptness in representing a client: generally appropriate in cases involving a failure to act with of the factors set out in Standard 3.0, the following sanctions are Absent aggravating or mitigating circumstances, upon application

obligations is Standard 4.4. That Standard provides:

71. The section of the Standards that deals with a lawyer's diligence and communication

obligations to communicate properly with his clients.

and his mother, Ms. Lynch. In both the Taylor and Kossuth cases, Mr. Walsh violated his

70. In the Taylor case, Mr. Walsh violated his obligations to represent diligently John Taylor p. 18 Page 18 of22

Walsh was utilizing their funds (as Mr. Walsh had explained to them when he persuaded

over their settlement funds totaling $13,000.00. Mr. Walsh's clients believed that Mr.

75. Although not communicating with his clients during this time, Mr. Walsh had control

was filed.

Walsh did finally respond, he did so only after the Attorney Discipline Office complaint

inquiries about the case from December 2003 through the end of June 2005. When Mr.

of I liz years. Mr. Walsh failed to respond to any of his clients' and/or Mr. Richelson's

neglect," as that term is used in Standard 4.42(b). The neglect took place over the course

74. Mr. Walsh's misconduct in the Taylor case could be characterized as a"pattern of

between a suspension and public censure for the reasons discussed below.

using this Standard as a guide, Mr. Walsh's baseline sanction more appropriately falls

ofMr. Walsh's misconduct does not wammt disbarment as a baseline sanction. Rather,

73. While the language of Standards 4.41 (b) and (c) are arguably applicable here, the nature

under this Standard.

three prongs of the four-part test under the Standards can be collapsed into an analysis

requires an analysis of both the attorney's mental state and the injury to the client, the first

attorney's mental state to measure the appropriate sanction. Because Standard 4.4

72. This Standard utilizes the nature of the injury (or potential injury) coupled with the

able to obtain a favorable arbitration result for his client.

Mr. Kossuth, after the Attorney Discipline Office complaint was filed, Mr. Walsh was

years remaining under the statute of limitations to take further action. And, in the case of

unnegotiated settlement check. At that point, Mr. Walsh's clients had approximately two

Office, Mr. Walsh responded to his clients by forwarding to them their file and the

78. In the end, however, after Mr. Richelson referred the matter to the Attorney Discipline

forward.

depositing the check into a trust account) and failed to take action to move their case

their money. Rather, Mr. Walsh neglected to do anything with the funds (including

77. Fortunately for his clients, Mr. Walsh was not engaged in any acts of self-dealing with

suffer needless anxiety, a significant although unquantifiable injury.

serious harm to his clients' case. Further, Mr. Walsh's misconduct caused his clients to

Walsh's lack of diligence and communication in the Taylor case caused potentially

case, Mr. Walsh could have put them on notice of the need to hire new counsel. Mr.

communicated with his clients (and the referring attorney, Mr. Richelson) in the Taylor

uncover the names of other potential defendants. Alternatively, had Mr. Walsh properly

case proper attention through investigation and discovery, he may have been able to

the case as he did, Mr. Walsh allowed valuable time to pass. Had Mr. Walsh given the

harm to the client's ability to pursue other potentially liable defendants. By neglecting

76. With specific reference to the Taylor matter, Mr. Walsh's misconduct may have caused

existence of other potentially liable defendants.

them to allow him to retain the funds) to conduct research and investigation into the p. 20 Page 20 of22

mandatory diversion, the terms of which are described in more detail below.

would be adequately addressed if the Committee issued a public censure coupled with

84. Disciplinary Counsel believes that the public protection goals served by a suspension

discipline is not to inflict punishment, but rather to protect the public ...." Grew's Case,

appropriate sanction, however, one must be"mindful that the purpose of attorney

a serious nature that a sanction of suspension could be warranted. In determining an

83. The aggravating factor (Mr. Walsh's prior disciplinary history) in these matters is of such

attitude toward the disciplinary proceedings, id. at 9.32(e).

dishonest or selfish motive, Standard 9.32(b); and (2) Mr. Walsh has had a cooperative

82. There are two mitigating factors present in these matters: (1) Mr. Walsh lacked a

disciplinary record is attached hereto).

N.H. R. Prof. Conduct 1.4(a), (b) and (c). See Exhibit A (a copy ofMr. Walsh's

with his clients. On April 20, 2006, Mr. Walsh received a Reprimand for having violated

On October 12,2004, Mr. Walsh received a Warning for failing to properly communicate

underlying conduct in both cases is similar in nature to that present in these two cases.

81. There is one significant aggravating factor. Mr. Walsh has a disciplinary history and his

andlor mitigating factors that affect the baseline sanction.

80. The final step in the analysis, however, is to determine whether there are any aggravating

a suspension and public censure.

79. For these reasons, the baseline sanction falls more appropriately on the spectrum between p. 21 Page 21 of22

by the consultant one year following the date of the original audit to insure ongoing

from the date of the Connnittee's order in this matter. A second audit shall be conducted

reconnnendations and show proof of same to Disciplinary Counsel within six months

the consultant's recommendations. Mr. Walsh shall fully implement the consultant's

the consultant to determine whether Mr. Walsh has completed the audit and implemented

Connnittee's order in this matter. Disciplinary Counsel shall have the ability to contact

87. Mr. Walsh shall be required to undergo the audit within three months from the date ofthe

Counsel before the audit is undertaken.

reconnnendations of the consultant. The consultant must be approved by Disciplinary

by a professional consultant skilled in office management, and to implement any and all

diversion require Mr. Walsh to undergo, at his expense, a formal audit of his law practice

diversion pursuant to Rule 37 A(I)(g)(l). The parties reconnnend that the mandatory

respectfully reconnnend that the Connnittee impose a public censure with mandatory

Standards, as well as the purposes of attorney discipline in New Hampshire, the parties

86. Accordingly, taking into consideration both the four part analysis reconnnended by the

audit and issues recommendations.

will conduct the audit with an eye toward this particular issue when s/he performs the

of willful neglect in the future. Disciplinary Counsel expects that the consultant/auditor

assist Mr. Walsh in developing practices and procedures that will guard against this type

Richelson and Mr. Gleason), Disciplinary Counsel expects that an audit of this nature will

in the Taylor case (i.e. refusing repeatedly to respond to inquiries from both Mr.

85. While an office management audit does not directly address Mr. Walsh's willful neglect p. 22 Page 22 of22 File David Kossuth Landya B. McCafferty, Disciplinary Counsel Russell F. Hilliard, Esquire Distribution:

investigation and prosecution of this matter.

Walsh to reimburse the Professional Conduct Committee for all expenses associated with the

violating N.H. Rules of Professional Conduct: l.3(a); 1.4(a)-(c), and 8.4(a), and orders Mr.

Censure With Mandatory Diversion as delineated above to Richard J. Walsh, Esquire, for

For all of the above reasons, the Professional Conduct Committee hereby issues a Public

will more effectively address public protection than a mere suspension.

all of the goals of attorney discipline. Ultimately, if successful, this remedial sanction

89. A public censure accompanied by the aforementioned mandatory diversion, will address

subject to further orders of the Committee.

Committee on a petition to show cause why he should not be held in contempt and

compliance with the terms of the mandatory diversion, he shall be brought before the

mandatory diversion, and/or fails to allow Disciplinary Counsel to oversee his

88. In the event that Mr. Walsh is unable or unwilling to comply with the terms of the

the consultant to Disciplinary Counsel.

compliance with the recommendations made. Copies of both audits shall be provided by