Tamblyn L. Fuller Gosling (2009)

The Committee voted to accept the Findings of Fact found by the Hearing Panel, by clear

minority opinion by James W. Squires, M.D., a lay member of the Hearing Panel.

Hearing Panel Report dated February 6, 2009. The Committee notes that the Report includes a

Findings of Fact and Rulings of Law; Transcript of Hearing held on December 16,2008 and

of Charges and Addendum; Jointly Submitted Exhibits; Disciplinary Counsel's Proposed

The Committee reviewed the Record, including: the Notice of Charges; Answer to Notice

Chollet and James R. Martin were absent.

Daley; Richard H. Darling; Gretchen Rule Hamel and Marilyn Billings McNamara. Susan R.

Toni M. Gray, Vice Chair; David N. Cole; Thomas P. Connair; Alan J. Cronheim; Gerald A.

Members present included: Margaret H. Nelson, Chair; Benette Pizzimenti, Vice Chair;

Gosling, Esquire, who was also present.

for the Attorney Discipline Office, and James W. Craig, Esquire, appeared for Tamlyn F.

deliberated the above-captioned matter. Landya B. McCafferty, Disciplinary Counsel appeared

On May 19, 2009, the Professional Conduct Committee heard Oral Argument and

Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole Marilyn Billings McNamara Susan R. Cholle!* 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*

date of December 1, 2005. Answer at ~ 8; see also Exh. 1. 8. The medical release form that Ms. Gosling forwarded had an expiration

Thurlow. Answer at if 7; see also Exh. 1.2 Ms. Simpson to sign, authorizing disclosure of records maintained by Ms. 7. In or about June 2006, Ms. Gosling forwarded a medical release form for

at ~ 6. 6. At all relevant times, Ms. Simpson's therapist was Kim Thurlow. Answer

~ 5. releases so that Ms. Gosling could obtain the medical records. Answer at 5. Ms. Gosling requested that Ms. Simpson provide her with signed medical

Answer at ~ 4. interest in obtaining records from Ms. Simpson's physician and therapist. 4. During the pendency of the divorce case, Ms. Gosling expressed an

Simpson was represented by Diane M. Puckhaber, Esq. Answer at ~ 3. 3. At all relevant times, Mr. Simpson was represented by Ms. Gosling; Ms.

husband, Scott E. Simpson. Answer at ~ 2. divorce proceeding between the complainant, Julie Simpson, and her ex­ 2. This attorney discipline matter pertains to out-of-court events relating to a

Answer at ~ 1. I North Mast Street, P.O. Box 39, Goffstown, New Hampshire 03045. material to this proceeding, Ms. Gosling operated her law office at 11 Ms. Gosling was admitted to practice on May 28, 1993. At all times 1. Ms. Gosling is an attorney licensed to practice law in New Hampshire.

numbered 16 - 19 as set forth below:

9 and 11 - 15, submitted by the Attorney Discipline Office, and made additional findings off act

and convincing evidence. The Hearing Panel granted the Proposed Findings of Fact, numbers 1 - p. 3 Page 3 of 10

to the Original Release. See Answer at'Ii 15. Ms. Simpson that Ms. Simpson had not altered or authorized any changes with Ms. Simpson on or about July 6, 2006. Ms. Thurlow learned from 15. After receiving Ms. Gosling's June 30, 2006, letter, Ms. Thurlow spoke

Thurlow. See Exh. 3. 14. Ms. Gosling did not copy Ms. Puckhaber on her June 30 letter to Ms.

Answer at'Ii 13; see also Exh. 3.

Tamblyn Gosling Best Regards, you. unnecessary court orders or fhture subpoenas/depositions. Thank any delay in sending the complete records so as to avoid your needs to do so. Please contact me immediately if there will be for Julie Simpson. I understand the enclosed release will satisfY This is a request to forward to me the complete counseling records Dear Ms. Thurlow: letter dated June 30, 2006. The cover letter stated:

13. Ms. Gosling forwarded the Altered Release to Ms. Thurlow with a cover

than that used in the Original Release. Answer at'Ii 12. 12. On the Altered Release, Ms. Gosling made her alterations in different ink

at ~ 11; see also Exh. 4. (This release is hereinafter referred to as the"Altered Release"). Answer Medication List. PsychiatriclPsychological Evaluation, Intake Summary, Lab Reports, and authorized, including: Social History, Progress Notes, Medical History, seven additional types of medical records that Ms. Simpson had not checking,"Treatment Plan." Ms. Gosling added check marks next to Ms. Simpson had authorized the release of one type of medical record by

Release in the following ways: 11. Upon receipt of the Original Release, Ms. Gosling altered the Original

to proposedjindings.) 10. NOT RULED UPON. (Included to preserve numbering to correspond

Simpson before completing it. See Answer at ~ 9 (not denied). own medical release forms. Ms. Thurlow reviewed the form with Ms. for a medical release. Ms. Thurlow provided Ms. Simpson with one of her 9. Ms. Simpson consulted with Ms. Thurlow regarding Ms. Gosling's request p. 4 Page 4 of 10 3 The Hearing Panel did not specifically rule on Attorney Discipline Office's Proposed Rulings of Law.

she had altered to Ms. Thurlow. 2. With her cover letter of June 30, 2006, Attorney Gosling forwarded a Release that

1. The Findings of Fact set forth above are incorporated by reference.

Rule 4.l(a): Truthfulness in Statements to Others

Misconduct.

Statements to Others, and Rule 4.4: Respect for Rights of Third Persons, and Rule 8.4(a):

Ms. Gosling violated the following Rules of Professional Conduct: Rule 4.1 (a): Truthfulness in

Report,3 the Professional Conduct COll1Inittee found that by clear and convincing evidence tIrat

Based on the Findings of Fact and the record in this case including the Hearing Panel

in the Original Release; a"treatment plan". Tr. at 77, Answer at 16. 19. The only records released to Attorney Gosling were the records authorized

Rules. Tr. at 40, 41, Exhibit 7. that she is a good person, and that she did not intentionally violate any apologized and acknowledged she made a mistake. She further indicates Gosling left a detailed voicemail message for Kim Thurlow in which she 18. On July 22, 2006, in response to a letter from Kim Thurlow, Attorney

37. Thurlow would accept the release, but she thought she would try. Tr. at later returned that call and left a message that she did not expect Kim message informing her that the release had been altered. Attorney Gosling 17. On July 5, 2006, Kim Thurlow contacted Attorney Gosling and left a

was kept by Kim Thurlow. Tr. at 22, 23, 35, Answer at 10, Exhibit 2. then forwarded the Original Release to Attorney Gosling. The original hereinafter referred to as the"Original Release"). Attorney Puckhaber form, a copy was faxed to Diane Puckhaber, Esquire (This release is 16. On June 7, 2006, after completing and signing Kim Thurlow's release

additionalfinding by tlte Hearing Panel. 16. ProposedFinding of Fact, NOT RULED UPON. Number 16 below is an p. 5 Page 5 of 10

legal rights of Ms. Simpson. 4. In so doing, !,-.. 1s. Gosling used a method of obtaining evidence that violated the

Ms. Simpson's complete counseling records. with a cover letter demanding that Ms. Thurlow provide Attorney Gosling with authority to do so: and by forwarding the Altered Release to Ms. Thurlow, along without the necessary release and by altering the Original Release without any privileged information regarding Ms. Simpson'spsychological care and condition 3. Attorney Gosling violated the legal rights of Ms. Simpson by attempting to obtain

divorce case on behalf of her client, Mr. Simpson. Answer at 28. Attorney Gosling was attempting to obtain evidence to use in the underlying 2.

I. The Findings of Fact set forth above are incorporated by reference.

Rule 4.4: Respect for Rights of Third Persons

June 30, 2006, letter to Ms. Thurlow. Answer at 23. allegation credible, as neither opposing counsel, nor the GAL were copied on the June 30, 2006, letter and enclosed Altered Release, the Panel did not find this 8. While Ms. Gosling alleges that she never intended to deceive anyone with the

person. Release, Attorney Gosling made a false statement of material fact to a third 7. By writing the June 30, 2006, letter to Kim Thurlow, and enclosing the Altered

therapy records. fact in Ms. Thurlow's consideration of Attorney Gosling's June 30 request for 6. The legality and validity of the Release forwarded to Ms. Thurlow was a material

valid and legal release authorized by Ms. Simpson. Gosling intended to induce Ms. Thurlow into believing the Altered Release was a 5. By writing the letter to Ms. Thurlow, and sending the Altered Release, Attorney

Release was a legal and valid release that had been authorized by Ms. Simpson. 4. Attorney Gosling's June 30, 2006, letter to Ms. Thurlow implied that the Altered

Altered Release and that, therefore, it was not a valid or legal release. 3. At all times, Ms. Gosling knew that Ms. Simpson had not consented to the p. 6 Page 6 of 10

Standards are useful as guidelines but their application is not mandatory.

aggravating or mitigating factors." Standards Sec. 3.0; Coffey'S Case, 152 N.H. at 513. The

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

Standards, the Court has considered them when imposing sanctions). The Standards set forth

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

determine the baseline sanction. Coffey's Case, 152 N.H. at 513; see also, e.g., Shillen's Case,

Association's Standards/or Imposing Lawyer Sanctions (1992) ("Standards") for guidance to

The New Hampshire Supreme Court and this Committee look to the American Bar

omitted)."The sanction must take into account the severity of the misconduct." Id

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

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

(2004). Rather, the purpose of the Court's disciplinary power"is to protect the public, maintain

sanctions are not intended as a mode of inflicting punishment. Kersey's Case, 150 N.H. 585, 585

Supreme Court. See, e.g., Feld's Case, 149 N.H. 19,28 (2002). Disciplinary action and

sanction is in accord with the purposes of attorney discipline as described by the New Hampshire

(6) month suspension with the suspension being stayed for a period of two (2) years. This

Professional Conduct Committee concludes that the appropriate discipline in this matter is a six

Having made the above findings and rulings, and for the reasons stated helow, the

In light of the above Rule violations, there is necessarily a violation of Rule 8.4(a).

Rule 8.4(a): General Rule p. 7 . Page 7 of 10

Reprimand. 5 Section 5.14 uses the term"Admonition." The most analogous sanction in New Hampshire is a Censure. 4 Section 5.13 uses the tenn"Reprimand." The most analogous sa.'1ction in New Hampshire is a Public

practice of law are critical to public confidence in the profession and central to public protection.

gravamen ofthe violations involve truthfulness and candor. Truthfulness and candor in the

Panel considered sanctions within the same parameters. The Committee recognized that the

public censure but ultimately recommended a suspension. Both the Committee and the Hearing

Disciplin&J' Counsel suggested that tr~s case falls in the range of eit.~er a suspension or a

that reflects adversely on the lawyer's fitness to practice law. 5.14 AdmonitionS is generally appropriate when a lawyer engages in any other conduct

adversely reflects on the lawyer's fitness to practice law. other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that 5.13 Reprimand 4 is generally appropriate when a lawyer knowingly engages in any

seriously adversely reflects on the lawyer's fitness to practice. conduct which does not contain the elements listed in Standard 5.11 and that 5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal

lawyer's fitness to practice. fraud, deceit, or misrepresentation that seriously adversely reflects on the (b) a lawyer engages in any other intentional conduct involving dishonesty,

another to commit any of these offenses; or intentional killing of another; or an attempt or conspiracy or solicitation of or the sale, distribution or importation of controlled substances; or the swearing, misrepresentation, fraud, extortion, misappropriation, or theft; includes intentional interference with the administration of justice, false (a) a lawyer engages in serious criminal conduct a necessary element of which

5.11 Disbarment is generally appropriate when:

to Maintain Personal Integrity," Section 5.1 provides:

The relevant ABA Standard for Ms. Gosling's violation is 5.1 which is entitled"Failure p. 8 Page 8 of 10

from appropriate professionals including a counselor and her pastor. The Committee also notes

Ms. Gosling's mental health issues. The Committee recognizes that Ms. Gosling sought help

The Committee also gave consideration to the minority report and its assessment of the impact of

was not adultery. Attorney Puckhaber described the case as unusual and very hard. Tr. at 58.

unclear from the record as to the specific grounds. Attorney Puckhaber testified that the grOlmds

acrimonious. The divorce was brought on"fault" grounds and was granted on that basis. It is

It is undisputed that the divorce litigation in this case was highly contentious and

outcome.

in this case and given the other mitigating factors, the issue of remorse would not affect the

of aggravating factors, it is included as a possible mitigating factor. In detennining the sanction

proceedings. See, Standards, Sec. 9.32 (a), (b), (c) and (e). Although remorse is not on the list

dishonest or selfish motive; personal or emotional problems, and cooperative attitude toward the

There are several mitigating factors: absence of a prior disciplinary record; absence of a

Panel Tr. at 76.)

Puckhaber and revoked any request for information related to the altered release. (See, Hearing

conduct." While the underlying litigation was pending, Ms. Gosling apologized to Attorney

"remorse," although Sec. 9.22 (g) involves a"refusal to acknowledge wrongful nature of

not fall neatly into any of the aggravating factors - there is no aggravating factor listed for lack of

aggravating factors, and there was competing evidence on the issue of remorse. This case does

for her actions as aggravating factors. The Hearing Panel does not specifically identifY the

Sec. 9.0. Disciplinary Counsel suggested that lack of remorse and refusal to accept responsibility

The Committee assessed the aggravating and mitigation factors as set forth in Standards, p. 9 Page 9 of 10

matter.

Ms. Gosling shall pay all costs associated with the investigation and prosecution of this

suspension shall be extended until SlICh time as the grievance is resolved.

If a grievance is filed but remains unresolved during this two year period, the stay of the

further hearing to determine whether a portion or all of the 6 month suspension shall be imposed.

imposed. If Ms. Gosling violates the Rules during thjs time, the Committee shall schedule a

the Rules of Professional Conduct during this two year period, the suspension shall not be

stayed for a period of two (2) years from the date of this Order. If Ms. Gosling does not violate

Ms. Gosling is suspended for a period of six (6) months, however, this suspension is

Professional Conduct, and this Committee's discretion.

is consistent with the purpose of the Court's disciplinary power, the goals of the Rules of

The Committee hereby issues a six month suspension stayed for two years. This decision

release was a one time act that is unlikely to be repeated.

her professional career to work as a mediator and as a guardian ad litem. The alteration of the

and the stress of divorce litigation, Ms. Gosling is no longer taking divorce cases but has limited

Program since September 2007. (See, Addendum to Answer). Given her mental health issues

with approval that she has also actively participated in the New Hampshire Lawyers Assistance p. 10 Page 10 of 10

File James W. Craig, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

37(3)(c).

appeal this decision to the New Hampshire Supreme Court. See also Supreme Court Rule

Pursuant to Supreme Court Rule 37(A)(III)(d)(2)(D)(4)(A), the parties have the right to