Donald L. Wyatt Jr. (2009)

of No Misconduct; transcripts of hearings before the Hearings Committee on May I and June 26,

Law; Attorney Wyatt's Memorandum of Law in Support of Respondent's Request for a Finding

Answers; a Stipulation dated Apri14, 2008, the ADO's Proposed Findings of Fact and Rulings of

a voluminous record, including: an original and amended Notice of Charges and the respondent's

In preparation for the oral argument and subsequent deliberation the Committee reviewed

absent. No member was recused from deliberation. Susan Chollet abstained.

Pizzimenti, Vice Chair, Thomas P. Connair, Alan J. Cronheim, and Gretchen Rule Hamel were

Daley, Richard H. Darling, James R. Martin, and Marilyn Billings McNamara. Benette

Margaret H. Nelson, Chair, Toni M. Gray, Vice Chair, Susan Chollet, David N. Cole, Gerald A.

with his attorney, Roy S. McCandless. The following Committee members were present:

complainant's brother whose representation by Attorney Wyatt led to this complaint, was present

complainant, Deborah Stacy, was present with her attorney, Terrie Harman. David Stacy, the

behalf of the Attorney Discipline Office ("ADO"). The respondent appeared pro se. The

matter on December 9,2008. James L. Kruse, Assistant Disciplinary Counsel, appeared on

The Professional Conduct Committee (the"Committee") heard oral argument in this

Wyatt, Donald L., Jr. advs. Deborah Stacy # 03-053

Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole Marilyn Billings McNamara Susan R. Chollet' James R. Martin Toni M. Gray,' Vice Chair 603-224-5828 • Fax 228-9511 Gretchen Rule Hamel Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Richard H. Darling' Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Gerald A. Daley'

diametrically opposed to Mr. Stacy's interests. Attorney Wyatt steadfastly refused to recognize

relationship, Attorney Wyatt also undertook representation of other parties whose interests were

much of the period of tillle in which AttOiliey vVyatt represented him. Despite ttJs ongoing

individual who appeared to suffer from significant psychological and physical impairment during

In brief, the stipulated facts establish that Attorney Wyatt represented David Stacy, an

clear and convincing evidence.

to this Order. The facts set forth in those stipulations are deemed to have been established by

and a Supplemental Stipulation dated June 16,2008 (pCC Tab 41), both of which are appended

The Committee voted to accept a Stipulation of Facts dated April 4, 2008 (PCC Tab 27)

for the purpose of appellate review.

denied the request, but determined that the letter and the Appearance shall remain in the record

appeal that ruling. Accordingly, the renewed request is untimely. On those bases, the Committee

Hearings Committee and the request was denied, she failed to move for reconsideration or to

Committee. Rule 37(III)(c)(2). Additionally, when Ms. Stacy made a similar request to the

an appropriate tribunal to consider new evidence not considered below by a Hearings

additional evidentiary matters as part of oral argument. The Committee is an appellate body, not

Stacy. Attorney Harman's letter requested the Committee to permit Attorney Harman to address

December 5, 2008, from Attorney Terrie Harman and her Appearance on behalf of Deborah

Before hearing Oral Argument the Committee considered a letter dated

Hearing Panel Report with Correct Attachment dated April 24, 2008; and other documents.

2008; a Supplemental Stipulation and Mr. Kruse's Memorandum on Sanction; a Reissued

p. 3 in Carroll County Probate Court as to whether he was representing Mr. Stacy Texas. Mr. Wyatt was not forthcoming to the Judge in the guardianship hearing and Ms. Svetlana Stacy in the guardianship hearings in both New Hampshire and The conflict of interest was exacerbated when tvfr. Wyatt represented ~fr. Brault

was representing his interests while also representing the conservatorship. the potential for conflict. Instead he gave Mr. Stacy the comfort of believing he administrating his client's estate. At no time did Mr. Wyatt explain to Mr. Stacy arise when representing both an individual and the conservatorship charged with estate. Mr. Wyatt knew, or should have known, a potential for conflict would represented both Mr. Stacy and the Conservatorship which oversaw Mr. Stacy's Mr. Wyatt violated Rule 1.7 (a)-(b) in that he had a conflict of interest when he

Rule 1.7(a) and 1.7(b): Conflict ofInterest

violation of these rules, which follow in pertinent part:

persuasive and adopts the Hearings Committee's rulings oflaw regarding Attorney Wyatt's

Rule 1.5: Illegal or Excessive Fees; and Rule 8.4(a): General Rule. The Committee also finds

Rule 1.7(a)-(b): Conflict ofInterest, General Rule; Rule 1.9: Conflict ofInterest, Former Client;

Based on the above referenced stipulated facts, the Committee fmds by clear and

had Mr. Stacy's best interests at heart.

at all times were appropriate and that no conflict of interest ever existed because at all times he

as a direct result of Attorney Wyatt's actions. Attorney Wyatt continues to assert that his actions

approximately $140,000 over a period of eighteen months. Mr. Stacy suffered significant harm

financial benefit through his representation of parties whose interests were adverse to Mr. Stacy:

opposing counsel and at least one court on several occasions. Attorney Wyatt gained substantial

even a potential conflict of interest, despite the issue having been brought to his attention by complicated when Mr. Wyatt represented himself and Mr. Brault when Mr. Stacy p. 4 These breaches of Mr. Wyatt's duty to Mr. Stacy's interests were further

Stacy's stated preference for Deborah Stacy as his guardian. County, Texas Probate Court of Deborah Stacy, notwithstanding NIT. 3. Representing Mr. Brault in contesting the appointment by the Harris which Mr. Stacy was not afforded access to his own counsel. proceedings in Texas, proceedings to which Mr. Stacy objected and during the conservatorship (Mr. Stacy's estate) to finance guardianship 2. Representing the conservatorship by negotiating a loan to be secured by Stacy's assets and expenditure of conservancy funds. disputes with Mr. Stacy over the disposition and management of Mr. 1. Representing the conservatorship and/or Mr. Brault in connection with the being Mr. Stacy's attorney including, but not limited to: Mr. Wyatt breached the aforesaid duty on several occasions after he ceased

approval. interests materially adverse to Mr. Stacy without properly obtaining Mr. Stacy's point on Mr. Wyatt had a duty to refrain from representing any other client with Stacy's Texas attorney ad litem that he no longer represented Mr. Stacy. At this latest, representation ended in April, 2002, when Mr. Wyatt was instructed by Mr. representation of Mr. Stacy by Mr. Wyatt actually ended, it is evident that, at the representing Mr. Stacy. Although the record is unclear as to when the matters. At some point after the creation of the conservatorship Mr. Wyatt ceased r the implementation and creation of the conservatorship and other personal .. as various matters relating to his financial and personal well-being and support; L Mr. Wyatt represented Mr. Stacy in connection with the Master Contract as well

Rule 1.9: Conflict ofInterest, Former Client

Rule 1.7 (a) and Rule 1.7(b): Conflict ofInterest. Based on clear and convincing evidence, the Panel finds Mr. Wyatt violated

legal rights are"absolute and unconditional" (RSA 464-A:6). Mr. Wyatt was to deny Mr. Stacy counsel in a guardianship hearing where his The effect of Mr. Wyatt's conflict and the authority offered and exercised by

Stacy and Mr. Brault. Stacy when he led Mr. Stacy to believe that he was not representing Svetlana petition for guardianship. Further, Attorney Wyatt breached a duty owed to Mr. that he was providing legal counsel to Mr. Brault and Svetlana Stacy in the Mr. Stacy in connection with the guardianship proceedings. The record is clear Stacy that Mr. Wyatt was not representing Svetlana Stacy and Mr. Brault against Further, Mr. Wyatt breached his duty to Mr. Stacy by misrepresenting to Mr. p. 5 -5-

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

December 9,2008, that the Committee enter a"unanimous finding of no misconduct."

Attorney Wyatt requests, supported by a Memorandum of Law and his oral argument on

recommends that the appropriate sanction in this matter should be a"lengthy suspension."

Based on the above referenced stipulated facts and record, Assistant Disciplinary Counsel

Reissued Hearing Panel Report at 2-5.

Panel finds Misconduct under Rule 8.4(a). Given the finding of violations of Rule 1.7(a) and Rule 1.7(b), and Rule 1.9, the

Rule 8.4 (a): Misconduct

violated Rule 1.5: Fees. Based on clear and convincing evidence, the Panel finds Attorney Wyatt

legal. Mr. Wyatt was acting in violation of Rule 1.7 (a) and (b) and Rule 1.9, were not The Panel determined that those fees generated during the period of time when

issue of the legality of those legal fees. conservatorship and Mr. Brault. Both Mr. Kruse and Mr. Wyatt addressed the and payments from the conservatorship for representation of Mr. Stacy and the A stipulation was submitted by Mr. Wyatt and Mr. Kruse as to the billings to

Rule 1.5: Fees

Rule 1.9: Conflict ofInterest, Former Client. Based on clear and convincing evidence, the Panel finds Mr. Wyatt violated

claims and demands. Stacy's access to independent counsel to pursue the aforementioned allegations, Wyatt, Mr. Brault and the conservatorship. In fact, Mr. Wyatt resisted Mr. Brault's interests when Mr. Stacy demanded refunds, reimbursement from Mr. of interest, and financial impropriety. Mr. Wyatt represented his own and Mr. objected to the accounting for the conservatorship included allegations of conflict solely in her interest, Mrs. Stacy was involved in numerous family law disputes with Mr. Stacy

p. 6 undertook representation of Svetlana Stacy or at least attempted to accomplish goals that were

manner in which Mr. Stacy dealt with his assets. During the period oftime Attorney Wyatt

represented Mr. Stacy's conservatorship, the conservatorship's main goal was to curtail the

obvious and brought to Attorney Wyatt's attention on several occasions. While Attorney Wyatt

failing to avoid numerous conflicts of interest while representing Mr. Stacy that were open and

Under the first prong of the analysis, Attorney Wyatt violated his duty to David Stacy by

aggravating or mitigating factors. Id.

identified this Committee looks to the fourth and final step in the analysis: the application of any

misconduct and identify the appropriate sanction."). After an appropriate baseline sanction is

N.H. 710-714 (2005) ("in applying these factors, the first step is to categorize the respondent's

characterizing the misconduct and determining a baseline sanction. Wolterbeek's Case, 152

Id (citing Standard 3.0). Consideration of the first three elements creates the framework for

caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors."

sanctions:"(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury

The Standards set forth four elements the Committee must consider when imposing

"Standards") for guidance, id. at 513.

to the American Bar Association's Standards/or Imposing Lawyer Sanctions (1992) (the

analysis that"must take into account the severity of the misconduct," id., the Committee looks

In determining what constitutes an appropriate sanction for a particular rules violation, an

in the future." E.g., Coffey's Case, 152 N.H. 503, 513 (2005) (internal quotation marks omitted).

confidence in the bar, preserve the integrity of the legal profession, and prevent similar conduct interest and does not fully disclose to a client the possible effect ofthat p. 7 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 the 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) engages in representation of a client lr.nowing that the lawyer's

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

involving conflict of interest:"

As set forth in the Standards,"the following sanctions are generally appropriate in cases

substantially likely to be relevant to resolution of the new issues.

even say identical), and facts Attorney Wyatt learned during his representation ofMr. Stacy were

impermissible conflict of interest, because the matters were substantially similar (and one might

representation of individuals or entities with interests adverse to Mr. Stacy's still constituted an

Mr. Stacy's interests. Even after Attorney Wyatt terminated his representation ofMr. Stacy, his

simultaneously represented Mr. Stacy and individuals or entities with interests in conflict with

In short, Attorney Wyatt violated his ethical obligation to David Stacy when he

and the conservatorship's interests in minimizing legal expenses.

himself in attempting to justifY his legal fees, his own interests were adverse to both Mr. Stacy's

and attempting to gain control over Mr. Stacy's assets. When Attorney Wyatt was representing p. 8 -8-

was representing Mr. Stacy's interests. Attorney Wyatt knew or should have known when he

needed independent counsel. Nevertheless, Attorney Wyatt told Mr. Stacy that Attorney Wyatt

proceedings in New Hampshire on behalf of the conservator and Mrs. Stacy that Mr. Stacy

Attorney Wyatt knew or should have known when he initiated temporary guardianship

parties.

Attorney Wyatt presented a conflict for Attorney Wyatt in continuing to represent any of these

Stacy and the conservator and Mr. Stacy's expressions of distrust of the conservator and

Mr. Stacy and the conservatorship following the emergence of material disputes between Mr.

by early 2002 Attorney Wyatt knew or should have known that his continued representation of

to recognize potential conflicts of interest given his various clients' clearly competing interests,

representing David Stacy in 1998. Even disregarding Attorney Wyatt's lack of vision in failing

his own interests with respect to questions raised about his fees. Attorney Wyatt began

difficulties and who was attempting to gain greater access to Mr. Stacy's funds and assets, and

assets, the conservator, Mr. Stacy's wife with whom Mr. Stacy was experiencing marital

David Stacy, the conservatorship established to govern the disposition ofMr. Stacy's funds and

parameters described in ~ 4.31 (b) or ~ 4.31 (c). Attorney Wyatt simultaneously represented

The Committee found that Attorney Wyatt's representation of Mr. Stacy matches the

Standards § 4.3, Failure to Avoid Conflicts ofInterest.

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. p. 9 -9-

directly opposed to Mr. Stacy (although at the same time, continuing to let Mr. Stacy believe that

abandoned his representation of Mr. Stacy and began representing clients who had interests

During the period from July 2001 to February 2003 in which Attorney Wyatt effectively

against the asserted interests of his former client, Mr. Stacy.

have lCflOWll t.l}at he was representing the conservatorship, the conservator, and his own interests

conflict during the period from August 2002 to March 2003, Attorney Wyatt knew or should

against objections raised by Mr. Stacy's new counsel and defended himself against claims of

former client. Similarly, when Attorney Wyatt defended the conservatorship's accounting

conflict of interest existed under Rule 1.9 relating to representation of adverse parties against a

representation of Mr. Stacy (which he had not), Attorney Wyatt should have recognized that a

proceedings. Therefore, even ifby this time Attorney Wyatt had unequivocally terminated his

Brault as Mr. Stacy's guardian, Attorney Wyatt knew that Mr. Stacy objected to these

Hampshire seeking an extension oftemporary orders and the indefinite appointment of Mr.

When Attorney Wyatt filed new pleadings in the Carroll County Probate Court in New

adverse to Mr. Stacy without filing an appearance and continued to bill for these services.

attempt to circumvent that Order, Attorney Wyatt continued to represent and advise parties

basis of the conflict. Then, despite the Court's Order, in what can only be deemed a deliberate

when he was disqualified from pro hac vice admission by the Harris County Probate Court on the

County Probate Court in June 2002, yet Attorney Wyatt continued to deny the conflict, even

Mr. Stacy continued to object to the guardianship when Attorney Wyatt appeared in the Harris

expressed interests that the dual representation constituted an impermissible conflict of interest.

participated in guardianship proceedings in Texas that were directly opposed to Mr. Stacy's p. 10 - 10 -

and determine whether they affect the baseline sanction. As to aggravating factors, the

The final step of the sanction analysis is to identify any aggravating or mitigating factors

return to the parties wrongfully charged.

Wyatt was operating under a conflict of interest, money Attorney Wyatt has made no attempt to

kl10wingly charging and collecting fees and expenses for legal services rendered while Attorney

Hearings Committee's and this Committee's finding that Attorney Wyatt violated Rule 1.5 by

sanction in this matter is disbarment, not suspension. This conclusion is further buttressed by the

suspension is appropriate. Standards § 4.32. Accordingly, the Committee finds that the baseline

disclosing to his client the possible effect ofthat conflict - the standard of behavior when

Wyatt's behavior goes far beyond knowing about a conflict of interest and merely not fully

Based on the stipulated facts and reasonable inferences to be drawn there from, Attorney

proper provision for and oversight of his medical care, and the cost oflegal services.

and loyal representation was a statutory necessity, lost access to his estate, detriment to the

to Mr. Stacy included his being effectively unrepresented in circumstances in which effective

to David Stacy, a client laboring under severe mental and physical handicaps. The risk of harm

individuals with interests adverse to Mr. Stacy without regard to the tangible and intangible costs

circumstances that Attorney Wyatt stopped representing Mr. Stacy and began representing

these substantial legal fees. It is also a reasonable inference to be drawn under these

under these circumstances that Attorney Wyatt intended to benefit himself through his receipt of

draw additional conclusions as to facts not stipulated. It is a reasonable inference to be drawn

$140,000. The Committee is entitled to apply reasonable inferences from stipulated facts to

Attorney Wyatt was representing him), Attorney Wyatt billed his new clients approximately p. 11 -11 -

were brought to his attention, it is the Committee's view that the public can be protected, public

despite its obviousness and despite several court hearings in which these conflicts of interest

Committee, and his steadfast refusal or inability to understand the nature of his misconduct

it took place, his self interest in pursuing the course of action that brought him before the

In view of the seriousness of Attorney Wyatt's misconduct, the length of time over which

case.

only the appropriate baseline sanction, it remains the appropriate sailction to be imposed in this

aggravating and mitigating factors leads the Committee to the conclusion that disbarment is not

has previously indicated it does not consider a mitigating factor). Consideration of these

considered as a mitigator under the Standards, but which the New Hampshire Supreme Court

among practicing attorneys, and that these disciplinary proceedings have been delayed (a factor

found that Attorney Wyatt has no prior disciplinary record, that he has an excellent reputation

regard manifests an indifference to making restitution. As to mitigating factors, the Committee

escrow if Attorney Wyatt feels that claims against him are unfounded, his lack of action in this

fees Attorney Wyatt was found to have wrongfully charged or even to putting those amounts in

has substantial experience in the practice oflaw, and, having made no effort to return any of the

physical incapacity and Attorney Wyatt took advantage ofthis vulnerability, that Attorney Wyatt

wrongful nature of his conduct, that Mr. Stacy was vulnerable as a result of his mental and

pattern of misconduct with multiple offenses, that he has steadfastly refused to acknowledge the

adverse interests to Mr. Stacy's constitutes a selfish motive, that Attorney Wyatt engaged in a

Committee found that the large amount of legal fees garnered by representing clients with p. 12 - 12 -

File Donald L. Wyatt Jr., Esquire James L. Kruse, Assistant Disciplinary Counsel Distribution:

January 20, 2009

prosecuting this matter. N.H. Sup. Ct. R. 37(19).

disbarment and assess Attorney Wyatt the Committee's expenses of investigating and

Disciplinary Counsel to petition the Supreme Court for Attorney Wyatt's unconditional

preserved only through Attorney Wyatt's disbarment. Accordingly, the Committee directs

confidence in the bar can be maintained, and the integrity of the legal profession can be