Jo-Ellen Wells (2005)

Hearing Panel Report Transcript ofJune 15, 2005 Order on Procedure Notice of Hearing Proposed Findings of Fact, Rulings of Law and Request for Sanctions in All Five Cases Motion to Consolidate Notice of Charges

included the following: The Professional Conduct Committee thoroughly reviewed the record in these matters that

David N. Page was absent. Eleanor Dahar; Nancy Hacking; Gretchen Rule Hamel; J alnes R. Martin; a..'1d Stephen Stepa..'1ek. and Reporter; Toni M. Gray, Vice Chair; David N. Cole; Thomas P. Connair; Alan J. Cronheim; matter. Members present included: Margaret H. Nelson, Chair; Benette Pizzimenti, Vice Chair On September 20, 2005, the Professional Conduct Committee considered the above-referenced

5. Throughout Ms. Wells' representation of Ms. Paris, Ms. Paris found it difficult to reach

agreement in writing.

or invoice detailing Ms. Wells' time on the cases. Ms. Wells also failed to put her fee

4. Throughout Ms. Wells' representation of Ms. Paris, Ms. Wells never sent Ms. Paris a bill

installments.

additional legal charges. Ms. Paris paid Ms. Wells a total of $ p. 2 2,000.00, in two separate

the $3,000.00 was a"flat-fee," but if the cases became"more involved" there would be

also told Ms. Paris that Ms. Wells' hourly rate was $95.00. Ms. Wells told Ms. Paris that

3. Ms. Wells quoted Ms. Paris a fee of$3,000.00 for the three cases. However, Ms. Wells

case deals only with the post-divorce matter and the civil suit.

Department, and a civil suit against her former in-laws. The Notice of Charges in this

post-divorce matter, a matter involving the return of firearms from the Pelham Police

represented Ms. Paris on three separate legal matters. Ms. Wells represented her on a

p. 2 2. Beginning in the Spring of2002, and continuing through the Summer of2003, Ms. Wells

Dina M. Paris asserted allegations of professional misconduct against Ms. Wells.

1. In a sworn complaint dated May p. 2 28, 2003, and in subsequent letters to the Committee,

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

The Professional Conduct Committee makes factual findings and rulings as detailed below.

Wells was given notice of the hearing, but she did not attend. Oral argument was not requested. Landya McCafferty, filed a Motion to Consolidate all five cases which was granted. Attorney Attorney Jo-Ellen Wells did not file an Answer to the Notice of Charges. Disciplinary Counsel, p. 3 3

. method for custody payments. Without proof that Mr. Paris had accrued a specific

11. According to Ms. Paris, the original divorce decree had mandated wage assignment as the

method to insure that [Ms, Paris] receives her payment 1....11 a timely mafLl1er."

10. As a result of the hearing, the Court stated that"a wage assignment is the most effective

Paris had paid her.

due to her, but she could not do that as she had no proof or documentation of what Mr.

9. At the hearing, the Court asked Ms. Paris to specifY what amount in child support was

had urged Ms. Wells to seek the payment records from Mr. Paris.

the child support payments that Mr. Paris had made to her. From the beginning, Ms. Paris

8. Prior to the hearing, Ms. Paris made it clear to Ms. Wells that she had not kept records of

only sporadic child support payments.

to acquire documentary evidence supporting Ms. Paris' claim that her husband had made

Motion and the date of the hearing, Ms. Wells engaged in no discovery or other attempts

7. The hearing took place on October 28,2002. Between the time Ms. Wells filed the

her ex-husband's cooperation with child support and custody issues.

had been recently diagnosed with cancer, and she was experiencing difficulty in obtaining

failure on her ex-husband's part to pay child support on a regular basis. Ms. Paris' son

Family Division at Derry ("Derry Family Court"). Ms. Paris' main concern was the

6. On April 22, 2002, Ms. Wells filed a Motion to ModifY on behalf of Ms. Paris in the

was at a Denny's Restaurant at the inception of her relationship with Ms. Paris.

Ms. Wells either in person or by telephone. The only place Ms. Wells met with Ms. Paris p. 4 4

16. Ms. Wells also handled a civil suit for Ms. Paris, in which she sought back rent and the

11 hearing.

Paris' pending Motion to ModifY as a result of Ms. Paris' failure to appear at the August

required to attend that hearing. By Order dated August 22, 2003, the Court dismissed Ms.

15. Ms. Paris did not attend the August 11 hearing. Ms. Paris did not understand that she was

Ms. Paris time to employ other legal counsel.

2003, hearing. Nor did Ms. Wells file a motion to continue that hearing in order to allow

2003. Ms. Wells gave Ms. Paris no instructions with respect to the upcoming August 11,

in Derry Family Court. Ms. Paris received a copy of Ms. Wells' withdrawal on August p. 4 4,

1 p. 4 4. On July 23, 2003, Ms. Wells filed her withdrawal from the post-divorce matter pending

decision not to return any of Ms. Paris' telephone calls.

office if you have any questions." At some point shortly thereafter, Ms. Wells made a

to present your reasons as to why the contempt ihas [sic] ocurred [sic]. Please contact my

hearing date. In that letter, Ms. Wells also wrote,"As I have stated, you must be prepared

13. In a letter dated May 20,2003, Ms. Wells informed Ms. Paris of the August 11,2003,

second Motion to ModifY was scheduled for August 11,2003.

filed a subsequent Motion to ModifY in or around the Spring of 2003. A hearing on that

12. As a result of Ms. Paris' dissatisfaction with the results at the first hearing, Ms. Wells

arrearage.

regular current payments in the future, but not provide any payments toward the

arrearage in child support payments, a wage assignment would only provide her with p. 5 5

( p. 5 5); 1.1 (c)( 4).

in violation ofN.H. R. Prof Conduct l.l(a). See also N.H. R. Prof. Conduct 1.1(b)(2) &

former in-laws was dismissed constitutes clear ~1}d convincing evidence of incompetence

22. Ms. Wells' failure to file any corrective pleading after Ms. Paris' civil case against her

N.H. R. Prof. Conduct 1.1 (a). See also N.H. R. Prof. Conduct 1.1 (b)(2) & ( p. 5 5); 1.l(c)(4).

former in-laws constitutes clear and convincing evidence of incompetence in violation of

21. Ms. Wells' failure to endorse the Writ of Summons in Ms. Paris' civil case against her

has violated the following Rules of Professional Conduct: Conduct Committee concludes that there is clear and convincing evidence that Jo-Ellen Wells The above-listed facts having been found by clear and convincing evidence, the Professional

the case.

20. Ms. Paris found out that the case had been dismissed when she went to Court to check on

failed to notify Ms. Paris ofthe dismissal.

Ms. Paris' behalf to reinstate her lawsuit or otherwise fix the problem. Ms. Wells also

19. On April 23, 2003, the Court granted that Motion to Dismiss. Ms. Wells filed nothing on

grounds that it was not endorsed as is statutorily required.

18. On April 4, 2003, the defendants filed a Motion to Dismiss the Writ of Summons on the

Court. Ms. Wells failed to date or endorse either Writ of Summons.

defendants. Ms. Wells also filed a copy of that Writ of Summons with the Salem District

17. On March 17, 2003, Ms. Wells had the Writ of Summons in that matter served on the

costs of repairing damages to an apartment from her former in-laws. p. 6 6

on a"flat fee." Ms. Wells' failure to send Ms. Paris a bill or invoice only increased Ms.

confusion on Ms. Paris' part about whether Ms. Wells was working on an hourly basis or

27. Ms. Weils' failure to explain to !vis. Paris the tenns oftvfs. Vlells' fee st:'"llcture caused

Rule 1.5(b): Failure to Explain Fee Structure

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

against her fonner in-laws also constitutes clear and convincing evidence of a violation of

2 p. 6 6. Ms. Wells' failure to communicate with Ms. Paris about the dismissal of her civil suit

clear and convincing evidence ofa violation ofN.H. R. Prof. Conduct 1.4(b) & (c).

confusion. Ms. Wells' failure to explain Ms. Wells' fee structure to Ms. Paris constitutes

fee." Ms. Wells' failure to send Ms. Paris a bill or invoice only increased Ms. Paris'

on Ms. Paris' part about whether Ms. Wells was working on an hourly basis or on a"flat

25. Ms. Wells' failure to explain to Ms. Paris the tenns of her fee structure caused confusion

convincing evidence ofa violation ofN.H. R. Prof. Conduct 1.4(a)-(c).

Prof. Conduct 1.4(a)-(c). Ms. Wells' failures in this regard constitute clear and

in a timely manner, Ms. Wells failed to communicate with her in accordance with N.H. R.

24. By failing throughout Ms. Wells' representation of Ms. Paris to return her telephone calls

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

and diligence on Ms. Paris' behalf. Ms. Wells' failure in this regard constitutes clear and

civil suit against her fonner in-laws, Ms. Wells failed to act with reasonable promptness

23. By failing to file the necessary paperwork to reinstate (or attempt to reinstate) Ms. Paris'

32. In a sworn letter of complaint dated September 16, 2003, and in a subsequent letter dated

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

Rules, there is necessarily clear and convincing evidence of a violation of Rule 8.4(a).

31. Because there exists clear and convincing evidence of a violation of the aforementioned

evidence ofa violation ofN.H. R. Prof. Conduct 1.l6(d).

interests or explain basic procedures to Ms. Paris constitutes clear and convincing

30. Ms. Wells' failures prior to her withdrawal to take any steps to protect Ms. Paris'

could obtain new counsel in advance of the hearing.

Ms. Wells' Withdrawal, a Motion to Continue the August 11 hearing so that Ms. Paris

29. By way of example, Ms. Wells could have filed on July 23, 2003, simultaneously with

required to attend the August 11, 2003, hearing.

the pending hearing on her Motion to ModifY. Ms. Paris did not understand that she was

to ensure that Ms. Paris understood what actions Ms. Paris needed to take with respect to

28. Prior to Ms. Wells' withdrawal from the post-divorce case, Ms. Wells failed to take steps

Rule 1.16(d): Failure to protect client's interests after withdrawal

and convincing evidence of a violation of N.H. R. Prof. Conduct 1.5(b).

past. Ms. Wells' failure to explain Ms. Wells' fee structure to Ms. Paris constitutes clear

Paris' confusion. Ms. Paris was not a client Ms. Wells had regularly represented in the p. 8 8

37. In advance of the September 9th heariug, Ms. Wells did not return any of Mr. Schneider's

Ms. Wells had had notice of this hearing since May 2,2002.

was a [mal pre-trial conference scheduled on Septerllber 9, 2002, at Derry Fanuly COlli-t.

date and time of an upcoming hearing in the Derry Family Court. As it turned out, there

36. On one such occasion, Mr. Schneider was calling Ms. Wells in an effort to determine the

called her.

If Ms. Wells returned his telephone calls, she did so several days or several weeks after he

He was never able to reach Ms. Wells directly by telephone; he always left her messages.

35. Throughout Ms. Wells' representation ofMr. Schneider, he had difficulty reaching her.

Schneider ever met Ms. Wells was the office of opposing counsel, M. Kathryn McCarroll.

Barnes and Noble bookstore in Salem, New Hampshire. The only office in which Mr.

either of her offices. Ms. Wells' initial meeting with Mr. Schneider took place at the

(from February 2002 through part of2003), Ms. Wells never met with Mr. Schneider in

other in Derry, New Hampshire. During the time Mr. Schneider was Ms. Wells' client

34. Ms. Wells informed Mr. Schneider that she had two offices, one located in Salem and the

paid that amount on February 19, 2002.

the divorce reached a settlement in a timely and uncomplicated manuer. Mr. Schneider

filing fees). Ms. Wells told him that this fee would cover everything only in the event that

represent him in his divorce. Ms. Wells initially quoted him a fee of$1,627.00 (including

33. On or about the second week of February 2002, Mr. Schneider retained Ms. Wells to

against Ms. Wells.

November 17, 2003, Robert C. Schneider asserted allegations of professional misconduct p. 9 9

assist him. In an undated letter to the Bar Association, Ms. Wells conceded that she was

43. In March of2003, Mr. Schneider telephoned the New Hampshire Bar Association to

2002. Thereafter, Mr. Schneider telephoned Ms. Wells repeatedly to find out about the

divorce was final. The Derry Family Court granted the decree of divorce on December 2,

42. Ms. Wells informed Mr. Schneider that the QDRO would be settled shortly after the

significant portion of his retainer.

the necessary legal work for the QDRO, and that he would receive a refund of a

prepared for him. At that time, Ms. Wells advised Mr. Schneider that she would handle

the necessary paperwork to have a Qualified Domestic Relations Order ("QDRO")

41. After the settlement of the divorce case, Mr. Schneider spoke to Ms. Wells about filing

he was entitled to a refund of a portion of his retainer as a result of the timely settlement.

case without the anticipated litigation. Ms. Wells informed Mr. Schneider at that time that

40. In or around mid-October of that year, Mr. Schneider was able to reach a settlement of the

involve litigation.

Wells requested this additional retainer because, at that point, she expected the case to

3 p. 9 9. On September 17,2002, Mr. Schneider paid Ms. Wells an additional $1,500.00. Ms.

September p. 9 9th hearing. The Court fined Ms. Wells for her failure to appear.

38. Mr. Schneider also learned from his ex-wife that Ms. Wells had failed to appear for the

his ex-wife.

not attend the September p. 9 9th hearing. He found out about that hearing after-the-fact from

phone calls or answer his questions. As a result, Mr. Schneider was not aware of and did p. 10 10

of N.H. R. Prof. Conduct l.3(a).

Ms. Wells' failure in this regard constitutes clear and convincing evidence of a violation

Wells failed to act with reasonable promptness and diligence on Mr. Schneider's behalf.

46. By failing to file the necessary paperwork to have Mr. Schneider's QDRO approved, Ms.

has violated the following Rules of Professional Conduct: Conduct Committee concludes that there is clear and convincing evidence that J 0- Ellen Wells The above-listed facts having been found by clear and convincing evidence, the Professional

his unused retainer. made no such refund to Mr. Schneider, nor has Ms. Wells communicated further with him about Wells agreed that Mr. Schneider was entitled to a refund 0[$1,000.00. To date, Ms. Wells has As of Ms. Wells' letter to the Professional Conduct Committee dated November 2, 2003, Ms.

McKay charged Mr. Schneider $600.00 to file the QDRO.

necessary QDRO paperwork. The Court approved the QDRO on January 7,2004. Ms.

who filed an appearance in Derry Family Court on November 19, 2003, along with the

the necessary paperwork for the QDRO. Mr. Schneider retained Catherine P. McKay,

45. Having not heard from Ms. Wells, Mr. Schneider decided to hire a new attorney to file

communication from Ms. Wells, despite repeated telephone calls to her office.

regarding his QDRO. Mr. Schneider waited approximately six weeks without any

would return $1,000.00 to him (as a refund) and file all the necessary paperwork

able to speak with Ms. Wells. At that time, Ms. Wells assured Mr. Schneider that she

44. With some assistance from the Bar Association, on June 13,2003, Mr. Schneider was

in possession of an unused portion of Mr. Schneider's retainer (approximately $900.00). p. 11 11

51. Ms. Wells' failure to deliver promptly to Mr. Schneider the funds to which he was

communication or justification.

has retained iVir. Schneider's unused retainer, and Ms. Wells has done so without any

Schneider the money to which he was entitled immediately thereafter. Instead, Ms. Wells

hired new counsel to file the QDRO paperwork. Ms. Wells should have refunded to Mr.

Committee dated November 17, 2003, Ms. Wells has been aware that Mr. Schneider

excessive amount of time. Since Mr. Schneider's letter to the Professional Conduct

50. Ms. Wells' has retained control over funds to which Mr. Schneider was entitled for an

Rule 1.IS(b) & 1.16(d): Failure to Promptly Deliver Funds to Client

Conduct 1.4(a)-(c).

this regard constitutes clear and convincing evidence of a violation of N.H. R. Prof.

paperwork for the QDRO constitutes a further violation of Rule 1.4. Ms. Wells' failure in

49. Ms. Wells' failure to communicate with Mr. Schneider about the filing of the necessary

clear and convincing evidence ofa violation ofN.H. R. Prof. Conduct 1.4(a)-(c).

most basic nature. Ms. Wells' failure to inform Mr. Schneider of this hearing constitutes

having had notice of it for four months, constitutes a failure of communication of the

48. Ms. Wells' failure to tell Mr. Schneider about the September 9, 2002, hearing, despite

(c).

constitute clear and convincing evidence of a violation ofN.H. R. Prof. Conduct 1.4(a)-

accordance with N.H. R. Prof. Conduct 1.4(a)-(c). Ms. Wells' failures in this regard

Wells' representation of Mr. Schneider, Ms. Wells failed to communicate with him in

47. By failing to return Mr. Schneider's telephone calls in a timely manner throughout Ms. p. 12 12 57. During that first meeting, Ms. Wells told Mr. Whitney that he could call Ms. Wells

Attorney Ray Raimo.

56. Prior to retaining Ms. Wells, Mr. Whitney had been represented on these matters by

Mr. Whitney paid Ms. Wells that amount in full during their first meeting.

55. Ms. Wells requested $1,500.00 as a retainer to represent Mr. Whitney on these matters.

present at that meeting was Mr. Whitney's mother, Patricia A. Whitney.

Starbucks coffee shop in the Barnes & Noble Store in Salem, New Hampshire. Also

54. Ms. Wells first a.'1d only meeting with Mr. Whitney took place on that date at the

petition (docket #03-DV-347) in Nashua District Court.

criminal charges, (docket #'s 03-Cr-7492 & 7493) and a related domestic violence

53. On September 18,2003, Mr. Whitney retained Ms. Wells to represent him on pending

Wells.

2003, Matthew A. Whitney asserted allegations of professional misconduct against Ms.

52. In a letter of complaint dated November 6, 2003, which was sworn to on November 11,

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

there is necessarily clear and convincing evidence of a violation of Rule 8.4(a). Because there exists clear and convincing evidence of a violation of the aforementioned Rules,

1.l5(b) and 1.l6(d).

entitled constitntes clear and convincing evidence of a violation ofN.H. R. Prof. Conduct p. 13 13

did not send Mr. Whitney a copy of either her Appearance or the Notice of Hearing in

Ms. Wells told Ms. Whitney that the new court date was November 20, 2003. Ms. Wells

filed her Appearance and continuance on October 9, the date of the scheduled hearing.

continuance of the October 9 hearing. Ms. Wells did not inform Ms. Whitney that she had

Ms. Wells informed Ms. Whitney that Ms. Wells had filed an Appearance and obtained a.

reach Ms. Wells. Shortly before the hearing, Ms. Whitney was able to reach Ms. Wells.

60. Because Mr. Whitney was unable to reach Ms. Wells, he asked his mother to attempt to

Whitney that Mr. Whitney would have to appear for the October 9 hearing.

Appearance and, as a result, Mr. Raimo would not file a Withdrawal. Mr. Raimo told Mr.

with Mr. Raimo. Mr. Raimo told Mr. Whitney that Ms. Wells had not yet filed an

Wel1s did not return his calls. During that time-frame, Mr. Whitney spoke several times

not hear from Ms. Wel1s. Mr. Whitney telephoned Ms. Wells and left messages, but Ms.

59. Between the September 18 meeting, and the October 9, 2003, court date, Mr. Whitney did

appearance in both cases and communicating regularly with him.

she would take care of everything that needed to be done on his cases, including filing an

charges was scheduled to occur on October 9, 2003. Ms. Wel1s assured Mr. Whitney that

58. At the time of Ms. Wells' first meeting with Mr. Whitney, a hearing on the criminal

Court, and forward to him a receipt for his retainer.

necessary paperwork and discovery, copy Mr. Whitney on all information received by the

Ms. Wells assured Mr. Whitney that she would contact Mr. Raimo, gather all of the

Wells where her office was located, and Ms. Wells told him"behind the Salem Mall."

anytime. Ms. Wells gave him her office and cell phone numbers. Mr. Whitney asked Ms. p. 14 14

On October 23, Ms. Whitney went to Ms. Wells' home. Ms. Whitney brought a friend,

Ms. Wells in the phone book. Ms. Whitney was able to locate Ms. Wells' home address.

Ms. Wells' office and speak with Ms. Wens. Ms. Whitney could find no office listing for

66. On October 23, 2004, the day before the hearing, Mr. Whitney asked his mother to go to

did not return his calls.

65. Mr. Whitney telephoned Ms. Wells again on October 21 and October 22, and Ms. Wells

returned his calls.

Notice as well as the discovery. Mr. Raimo told Mr. Whitney that Ms. Wells had not

hearing on the 24th. Mr. Raimo indicated that he had sent Ms. Wells copies of the Hearing

64. On Monday, October 20, 2004, Mr. Raimo again telephoned Mr. Whitney about the

reach Ms. Wells; he left a message. Ms. Wells did not retnrn his call.

63. Mr. Whitney telephoned Ms. Wells that evening, as she had instructed. He was unable to

that evening so she could explain the details.

court on October 24. Ms. Wells told Ms. Whitney to have Mr. Whitney call Ms. Wells

that Ms. Wells had taken care of everything, and that Mr. Whitney did not have to attend

day. Ms. Whitney spoke with Ms. Wells on the telephone. Ms. Wells told Ms. Whitney

62. Mr. Whitney asked his mother to attempt to reach Ms. Wells during working hours that

date. Ms. Wells did not retnrn his call.

immediately called Ms. Wells and left a message requesting a retnrn call about that court

hearing on the restraining order was scheduled for October 24,2003. Mr. Whitney

61. The week of October 13 Mr. Raimo telephoned Mr. Whitney to inform him that the final

that matter. p. 15 15

Ms. Wells from attending Court with him the next day. Ms. Wells told Mr. Whitney that

morning. Ms. Wells spoke with Mr. Whitney and explained the conflict that prevented

vVhitney on the cell phone lliid explain what to expect iti Nashua District Court the next

70. Before leaving Ms. Wells' house, Ms. Whitney asked if Ms. Wells would speak to Mr.

District Court before the trial.

Wells could not do that because she had to meet with her"other client" at 9 a.m. in Derry

morning before going to Derry District Court. Ms. Wells told Ms. Whitney that Ms.

Ms. Wells could possibly meet Mr. Whitney at Nashua Distri~t Court at 8:30 a.m. that

Wells had a court date at 10:00 a.m. in Derry District Court. Ms. Whitney then asked if

attend the October 24 hearing for Mr. Whitney in Nashua District Court because Ms.

69. At this point, Ms. Wells told Ms. Whitney and Ms. Langone that Ms. Wells could not

Ms. Whitney noticed Mr. Whitney's telephone number in the file.

Wells returned with Mr. Whitney's file. The file had paperwork from Mr. Raimo, and

68. After Ms. Wells finished speaking with Mr. Raimo, Ms. Wells went inside her house. Ms.

spoke with Mr. Raimo.

paperwork to Ms. Wells. Ms. Langone handed her cell phone to Ms. Wells and Ms. Wells

telephoned Mr. Raimo on her cell phone. Mr. Raimo indicated that he had sent all of the

Wells had received no paperwork from Mr. Raimo. Upon hearing that, Ms. Langone

Whitney, but she had misplaced his phone number. Ms. Wells told Ms. Whitney that Ms.

Wells immediately told Ms. Whitney that Ms. Wells had been trying to reach Mr.

67. Ms. Wells answered the door and spoke with Ms. Whitney and Ms. Langone outside. Ms.

Nanette Langone, with her to Ms. Wells' house. p. 16 16

case.

Wells would deduct two hours of work for the time she claimed she had spent on his

Wells answered the phone. Mr. Whitney asked for his retainer. Ms. Wens told him Ms.

76. On October 27,2003, Mr. Whitney telephoned Ms. Wells' cell phone number, and Ms.

Ms. Wells to telephone him that evening. Ms. Wells did not call him.

Wells to retnrn his retainer and asking Ms. Wells to file a Withdrawal. He also asked for

75. The next day, October 25, Mr. Whitney wrote Ms. Wells a letter asking again for Ms.

his call.

message asking for Ms. Wells to return his $1,500.00 retainer. Ms. Wells did not return

74. Upon returning to his home that day, Mr. Whitney telephoned Ms. Wells and left a

trials were ever scheduled on Fridays.

Whitney that there was no trial scheduled at 10:00 a.m. that day, and that no criminal

to see ifhe could find Ms. Wells. The clerk of Derry District Court informed Mr.

73. After he was finished in Nashua District Court, Mr. Whitney went to Derry District Court

District Court continued Mr. Whitney's hearing.

Ms. Wells gave his mother. Mr. Raimo was in Court and assisted Mr. Whitney. Nashua

72. The next morning, Mr. Whitney went to Nashua District Court and filed the paperwork

number crossed out and replaced with Mr. Whitney's information.

Wells gave Ms. Whitney paperwork from a former client, with his name, court and docket

Appearance and a Motion to Continue for Mr. Whitney to take to Court the next day. Ms.

71. Before Ms. Whitney left Ms. Wells' house that day, Ms. Wells agreed to draft an

she would call him that night. Ms. Wells did not call him that night. p. 17 17

Rule 8.4(c): Misconduct involving Dishonestv, Fraud, Deceit or Misrepresentation

1.lS(b) and 1.l6( d).

above, constitutes clear and convincing evidence of a violation of N .R. R. Prof. Conduct

80. Ms. Wells' failure to return Mr. Whitney's unused retainer upon his request, as discussed

any communication or justification.

Wells has retained Mr. Whitney's unused retainer, and Ms. Wells has done so without

79. To date, Ms. Wells has not refunded Mr. Whitney any of his unused retainer. Instead, Ms.

payment for two hours of legal work.

requested a refund of his retainer. Ms. Wells agreed to refund his retainer after deducting

excessive amount of time. As of October 27,2003, Ms. Wells knew that Mr. Whitney

78. Ms. Wells has retained control over funds to which Mr. Whitney was entitled for an

Rule 1.15(b) & 1.16(d): Failure to Promptly Deliver Funds to Client

(c).

constitute clear and convincing evidence of a violation ofN.H. R. Prof. Conduct l.4(a)-

accordance with N.H. R. Prof. Conduct 1.4(a)-(c). Ms. Wells' failures in this regard

Wells' representation ofMr. Whitney, Ms. Wells failed to communicate with him in

77. By failing to return Mr. Whitney's telephone calls in a timely manner throughout Ms.

has violated the following Rules of Professional Conduct: Conduct Committee concludes that there is clear and convincing evidence that lo-Ellen Wells The above-listed facts having been found by clear and convincing evidence, the Professional

To date, Ms. Wells has not returned any portion of his retainer. p. 18 18 I. FACTUAL FINDINGS

Ellen Wells violated any Rule of Professional Conduct, in this case. Disciplinary Counsel did not meet her burden of proof by clear and convincing evidence that J 0- The Professional Conduct Committee adopted the finding of the Hearings Panel that

Rules, there is necessarily clear and convincing evidence of a violation of Rule 8.4(a).

84. Because there exists clear and convincing evidence of a violation of the aforementioned

a violation ofN.H. R. Prof. Conduct 8.4(c).

83. Ms. Wells' misrepresentations in this regard constitutes clear and convincing evidence of

Wells' help. Ms. Wells knew at the time she made these statements that they were false.

unavailable for Mr. Whitney on October 24 and to induce them to cease insisting on Ms.

the facts to Mr. Whitney and his mother in an effort to persuade them that Ms. Wells was

82. Ms. Wells had no such conflict, court date or"other client." Ms. Wells misrepresented

appointment with the"other client."

earlier in the morning on October 24 because Ms. Wells already had an early morning

District Court that morning. Ms. Wells also stated that she could not meet Mr. Whitney

told them both that Ms. Wells had a conflicting court date with another client in Derry

Wells could not attend the October 24,2003, hearing in Nashua District Court, Ms. Wells

81. When asked separately by Mr. Whitney and his mother, Ms. Whitney, about why Ms. p. 19 19

form to Ms. Wells on July 16,2004.

her divorce. The clerk informed Ms. Caisse that the Court had mailed the Vital Statistics

92. On August 10, 2004, Ms. Caisse called the Salem Family Court to check on the status of

91. On June 25, 2004, Ms. Caisse's check to the Salem Family Court cleared her account.

documents by June 11,2004.

90. Mr. and Mrs. Caisse completed, signed and delivered to Ms. Wells all the necessary

was a joint petition involving no children or property issues.

89. Ms. Wells informed Mr. and Mrs. Caisse that the case would be finalized quickly as it

2004.

that date. The check to Ms. Wells for legal fees cleared Ms. Caisse's account on May 21,

amount on May 17,2004. Ms. Caisse also wrote Ms. Wells a check for the filing fees on

88. Ms. Wells requested a fee of$700.00. Ms. Caisse wrote Ms. Wells a check for that

petition for divorce.

discuss the possibility of handling their divorce. Ms. Wells agreed to draft their joint

87. On May 17, 2004, Ms. Caisse and her then-husband, Ray Caisse, met with Ms. Wells to

uncontested divorce.

New Hampshire, to discuss the possibility of Ms. Wells representing her in an

86. On April 27, 2004, Ms. Caisse met with Ms. Wells at the Howie Law Office in Salem,

Kathlene H. Caisse asserted allegations of professional misconduct against Ms. Wells.

85. In a letter of complaint dated October 18,2004, and sworn to on November 9, 2004,

factual findings of the Hearing Panel by clear and convincing evidence: The Professional Conduct Committee has determined that the record supports the following p. 20 20 The above-listed facts having been found by clear and convincing evidence, the Professional

communication from Ms. Wells on this issue. To date, Ms. Weils has not filed the Vital Statistics form, and Ms. Caisse has had no

still had not received anything from Ms. Wells.

98. On September 21, p. 20 2004, Ms. Caisse again telephoned the Salem Family Court. The Court

Court would issue her Divorce Decree.

wanted Ms. Wells to take immediate action to file the Vital Statistics form so that the

longer in service. Ms. Caisse then left a message at Ms. Wells' home number. Ms. Caisse

97. On that date, Ms. Caisse telephoned Ms. Wells. Ms. Wells' cell phone number was no

clerk that the Court had granted her Petition for Divorce.

received nothing from Ms. Wells. It was on that date that Ms. Caisse learned from the

96. On September 16, p. 20 2004, Ms. Caisse again telephoned the Court. The Court still had

had received nothing from Ms. Wells.

95. On September 10, p. 20 2004, Ms. Caisse again telephoned the Salem Family Court. The Court

Wells on September 1, p. 20 2004.

Ms. Wells. The clerk told Ms. Caisse that the Court would forward the paperwork to Ms.

Court would again send the Vital Statistics form with a copy of the Divorce Decree to

received no further paperwork from Ms. Wells. The clerk informed Ms. Caisse that the

94. On August 31, p. 20 2004, Ms. Caisse telephoned the Salem Family Court. The Court had

matter would be fmalized within 7-10 days.

Wells informed Ms. Caisse that Ms. Wells would file the Vital Statistics form and the

93. On August 10, p. 20 2004, after speaking with the clerk, Ms. Caisse telephoned Ms. Wells. Ms. p. 21 21 Standard §4.4 (Lack of Diligence), Standard §4.5 (Lack of Competence), Standard §4.6 (Lack of clients. See generally, Standards § 4.0 and Standard §4.1 (Failure to Preserve Client's Property), The record demonstrates a pervasive and consistent pattern of violations of duties owed to misconduct; and d) the existence of aggravating or mitigating factors. Standards §3.0. violated; b) the lawyer's mental state; c) the potential or actual injury caused by the lawyer's The Standards set forth the folloWlilg factors pertinent to the imposition of sa..l1ctions: a) the duty

adopted these Standards, the Court has "considered them when imposing sanctions"). Shillen's Case, 149 N.H. 132, 139 (2003) (noting that, although the Court has nev:er formally for Professional Responsibility, Standards for Imposing Lawyer Sanctions (1991). See, e.g., e.g., Fe/d's Case, 149 N.H. 19,28 (2002). This sanction is also in accord with the ABA Center with the purposes of attorney discipline as described by the New Hampshire Supreme Court See, concludes that the appropriate discipline in this matter is disbannent. This sanction is in accord Having made the aforementioned findings and rulings, the Professional Conduct Committee

there is necessarily clear and convincing evidence of a violation of Rule 8.4(a). Because there exists clear and convincing evidence of a violation of the aforementioned Rules,

ofN.H. R. Prof. Conduct 1.4(a)-(c).

101. Ms. Wells' failures in this regard constitutes clear and convincing evidence of a violation

forms, nor has Ms. Wells explained to Ms. Caisse how to file the forms herself.

Wens has not explained to Ms. Caisse why Ms. Wells has failed to file the necessary

Wens assured Ms. Caisse that the matter would be taken care of within 7-10 days. Ms.

100. Ms. Wells has not communicated with Ms. Caisse since August 10,2004, the date Ms.

and convincing evidence of a violation ofN.H. R. Prof. Conduct 1.3(a).

99. Ms. Wells' failure to file the Vital Statistics form on Ms. Caisse's behalf constitutes clear

has violated the following Rules of Professional Conduct: Conduct Committee concludes that there is clear and convincing evidence that J 0- Ellen Wells p. 22 22

File Jo-Ellen Wells c.c. Landya B. McCafferty, Disciplinary Counsel

the disbarment of Attorney Jo-Ellen Wells. directs Disciplinary Counsel to file a Petition with the New Hampshire Supreme Court seeking After consideration of the appropriate sanction, the Professional Conduct Committee hereby

Rule 8.4 (c) (one violation) Rule 8.4 (a) (four violations) Rule 1.16 (d) (two violations) Rule 1.15 (b) (two violations) Rule 1.5 (b) Rule 1.4 (four violations) Rule 1.3 (three violations) Rule 1.1 Based on its findings of violations ofthe following Rules of Professional Conduct: IV. CONCLUSION

Sup. Ct. R. 37 (19). Professional Conduct Committee in the investigation and prosecution of these matters. See, N. H. It is further recommended that Attorney Wells be ordered to pay the expenses incurred by the

disbarment is the appropriate sanction. these cases. Due to the serious, harmful and repetitive nature of Attorney Wells' conduct, restitution by failing to return the balance of retainers. All these aggravating facts are present in offenses; (g) refusal to acknowledge wrongful nature of conduct; and G) indifference to making process. Under §9. p. 22 22, aggravating factors include: (c) a pattern of misconduct; (d) multiple factors that should be considered, due primarily to Attorney Wells' lack of participation in this the strongest sanction. The Professional Conduct Committee is not aware of any mitigating have been the appropriate sanction in just one of these matters, the pattern of conduct warrants be considered in deciding what sanction to impose." Standards §9.1. While disbarment may not Candor)."After misconduct has been established, aggravating or mitigating circumstances may