Lynn D. Morse (2009)

decision detailed below.

Having heard from the parties and considered the record, the Committee reached the

Martin, and Marilyn Billings McNamara were present.

Thomas Connair, Alan Cronheim, Gerald Daley, Richard Darling, Gretchen Rule Hamel, James

Committee Chair, participated by telephone. Committee members Toni Gray, David Cole,

Benette Pizzimenti, Vice Chair, presided at the oral argument. Margaret Nelson,

the record, and deliberated at its meeting on October 21, 2008.

Professional Conduct Committee ("Committee"). The Committee heard argument, considered

After the Hearing Panel report was issued, the parties requested oral argument before the

costs. A Hearing Panel was convened to consider the issues of rules violations and sanctions.

Prior to a hearing, Mr. Morse and Disciplinary Counsel executed a stipulation as to facts and

relative to Mr. Morse's handling of an estate for which Ms. Mize had been named the executrix.

This matter arose from a complaint filed by Ruth Ann Mize against Lynn D. Morse

Gerald A. Daley* Holly B. Fazzino, Admin. Coordinator Alan J. Cronheirn * non attorney member Thomas P. Connair James J. Tenn, 1r. David N. Cole David N. Page* Toni M. Gray, * Vice Chair 603-224-5828 c Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 0330 I Gretchen Rule Hamel Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Richard H. Darling*

I The Hearing Panel Report erroneously identifies this as"Rule 3(1)".

in that Mr. Morse violated the Rules of Professional Conduct.

The Committee also found, by clear and convincing evidence, a violation of Rule 8.4(a),

misrepresentation when he led Ms. Mize to believe that the tax returns had been filed.

Rule 8.4(c), relative to dishonesty, in that Mr. Morse engaged in deceit and

false and which was material to the proceeding.

factual statements to the Court that the estate's tax returns had been filed, which he knew to be

Rule 3.3(a)(1), relative to candor toward the tribunal, in that Mr. Morse made false

own repeated assurances that the file would be provided.

a copy of the estate's file to new counsel for over three months, despite repeated requests and his

Rule 1.16( d), relative to termination of representation, in that Mr. Morse failed to provide

the necessary steps to finalize and close out the estate administration.

repeatedly failed to file timely estate administration docmnents for the estate and failed to take

Rule 1.1, relative to competence, and Rule 1.3,1 relative to diligence, in that Mr. Morse

Rules, as reflected in the Hearing Panel Report (attached):

The Committee found, by clear and convincing evidence, violations of the following

(attached).

Stipulation and as found by the Hearing Panel, as reflected in the Hearing Panel Report

The Committee found, by clear and convincing evidence, the facts as agreed to in the

I. FINDINGS OF FACT p. 3 Page 3 of7

cooperate promptly with subsequent counsel.

Mr. Morse misrepresented the status of his client's case to the client and the court, and did not

As to the first factor, Mr. Morse violated duties to his client, the court and his profession.

considers the effect of any aggravating or mitigating factors on the ultimate sanction.").

whether they affect the baseline sanction. See id. ("After determining the sanction, [the Court]

fourth and final step in the analysis: the existence of any aggravating or mitigating factors and

appropriate sanction"). Once the baseline sanction is determined, the Court then looks to the

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

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

The first three factors create the framework for characterizing the misconduct and

Standards § 3.0; Coffey's Case, 152 N.H. at 513.

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

152 N.H. at 513. The Standards set forth a four-part analysis for courts to consider in imposing

Imposing Lawyer Sanctions (1992) ("Standards"), it looks to them for guidance. Coffey's Case,

Although the Court has not adopted the American Bar Association's Standards for

not intended as a mode of inflicting punishment for an offense." Id. at 512-13.

"The sanction must take into account the severity of the misconduct." Id. Attorney discipline"is

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

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

III. ANALYSIS p. 4 Page 4 of7

mental state, and the injuries caused by his misconduct, the Committee determined that the

Having considered the first three factors by considering the duties Mr. Morse violated, his

potentially adverse effect on the legal proceeding. potential injury to a party to the legal proceeding, or causes an adverse or improperly being withheld, and takes no remedial action, and causes i~ury or docmnents are being submitted to the court or that material information is 6.12 Suspension is generally appropriate when a lawyer knows that false statements or

causes a signficant or potentially significant adverse effect on the legal proceeding. material information, and causes serious or potentially serious injury to a party, or court, makes a false statement, submits a false document, or improperly withholds 6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive the

or that involves dihonesty, fraud, deceit, or misrepresentation to a court: appropriate in cases involving conduct that is prejudicial to the administration of justice "Absent aggravating or mitigating circmnstances, ... the following sILl1ctions are generaily

provisions of 6.1 are as follows:

Legal System, and specifically 6.1, False Statements, Fraud, and Misrepresentation. The relevant

The relevant section of the Standards is Section 6.0, Violations of Duties Owed to the

the injury in the case did not rise to the level of"serious" injury as described in the Standards.

another attorney. While Mr. Morse's conduct was deplorable, the Committee consensus was that

that she suffered additional stress and aggravation, and monetarily, in that she needed to hire

Morse's misconduct. Here, Mr. Morse's conduct caused injury to his client, both emotionally, in

The third factor requires consideration of the potential or actual injury caused by Mr.

any intent to do harm to anyone or with any intent to benefit himself.

obligations both to his client and to the Court. However, there is no evidence that he acted with

respect to each of Mr. Morse's violations, he acted with gross negligence by ignoring his

The second factor relates to Mr. Morse's state of mind. The evidence is clear that with p. 5 Page 5 of7 including a provision for mentoring and supervision, with which Mr. Morse will

Submission of a plan that is approved by the Committee for office management,

Compietion of 12 hours of ethics training; and

Full restitution to the victims;

conditions for reinstatement:

Two (2) years suspension from the practice oflaw in New Hampshire, with the following

the following sanction:

Panel then considered the aggravating and mitigating factors it had identified, and recommended

most serious infractions and concluded that the baseline sanction was suspension. The Hearing

The Hearing Pane! found that the violations ofRu!e 3.3(a)(1) and Rule 8.4(c) were the

at 6-7.

his community); and Mr. Morse's remorse for his professional failings. Hearing Panel Report

Disciplinary Counsel's opinion, based on her investigation, that Mr. Morse is highly regarded in

factors: the absence of any selfish motive; Mr. Morse's character and reputation (based on

indifference to making restitution. The Hearing Panel also identified the following as mitigating

and legatees); Mr. Morse's substantial experience in the practice of law; and his apparent

acknowledge the wrongful nature of his conduct; the vulnerability of the victims (elderly client

representation to the Committee during the investigation of this matter; Mr. Morse's refusal to

factors: Mr. Morse's prior misconduct (public censure in 2001); his making a false and deceptive

that affect the baseline sanction. The Hearing Panel identified the following as aggravating

The final factor is to determine whether any aggravating or mitigating factors are present

appropriate baseline sanction for Mr. Morse's misconduct was a suspension. p. 6 Page 6 of7

recommended conditions for reinstatement:

Two (2) year suspension from the practice of law in New Hampshire, with the following

Based on the foregoing, the Committee voted to recommend the following sanction:

this case.

and found no basis for inconsistently imposing the harshest sentence of all, i.e., disbarment, in

Finally, the Committee considered other cases in which similar circumstances were presented,

considered Mr. Morse's reputation in his community and the length of time he has practiced.

Morse's conduct in this one case constituted a pattern of misconduct. The Committee also

or dishonest motive, and the Corrm1ittee did not agree with Disciplinaf'J Counsel that Mr.

insufficient basis for elevating the sanction to disbarment. Mr. Morse did not act with any selfish

After considering the aggravating and mitigating factors, the Committee found an

recommendation.

At Oral Argument, Mr. Morse urged the Committee to accept the Hearing Panel's

a threat to the public and the integrity of the profession that he should be disbarred.

aggravating factors moved the appropriate sanction to disbarment because Mr. Morse poses such

Disciplinary Counsel contended that even if a baseline of suspension were accepted, the

aggravating factor, namely that Mr. Morse's behavior showed a pattern ofrnisconduct.

(contrary to the Hearing Panel's findings). Disciplinary Counsel also asserted an additional

was disbarment, based on the egregiousness of Mr. Morse's conduct and his lack of remorse

At Oral Argument, Disciplinary Counsel argued that the appropriate baseline sanction

comply for one year following reinstatement. p. 7 Page 7 of7

File Lynu D. Morse, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

investigation and prosecution ofthis matter.

Mr. Morse shall pay the expenses incurred by the Professional Conduct Committee in the

Full restitution to the victims.

Committee; and

Mr. Morse will comply for one year following reinstatement with periodic reports to the

Submission of a case-management plan for approval by the Committee, with which p. 8 Page 1 of8

of proof from Discip1infu~! Coul'1sel ai1.d Mr.:rv1orse. 1-..:[0 witnesses were called by either side. September 3, 2008, hearing, which included exhibits from the parties, the Stipulation, and offers The Hearing Panel thoroughly reviewed the entire record and evidence presented at the The Hearing

Stipulation was adopted by the Panel and should be deemed incorporated into this report. The parties entered into a 131 paragraph Stipulation of Facts on August 29, 2008. That

about filing of tax returns for the estate. in a timely manner to successor counsel, and that Mr. Morse made false assertions to the Court estate administration in a timely fashion, that Mr. Morse failed to provide a copy of tIle estate file in summary form, allegations that Mr. Morse failed to take the necessary steps to close out the McInnes. Her niece, Ruth Ann Mize, was the named executrix. The notice of charges involved, Lynn D. Morse, Esq. Those charges stem from Mr. Morse's representation of the estate of Bertha On April 7, 2008, Disciplinary Counsel filed Notice of Charges alleging misconduct against Background

Elaine Holden Kimberly Mark Melissa Countway Guldbrandsen, Esquire James T. Boffetti, Esquire, Reporter Robert C. Varney, Esquire, Chair

37A(III)(b)(4) on May 15,2008. The following Panel was appointed: A complaint was referred to this Panel pursuant to New Hampshire Supreme Court Rule

Yes No If no, attach explanation in Information Schedule." time of filing this account been filed and the taxes connected therewith paid? "Have all Federal and State Income Tax Returns of the Estate which are due at the

Yes No If no, attach explanation in Infonnation Schedule." ending with hislher death been filed and the taxes connected therewith paid? "Have all Federal and State Income Tax Returns of the decedent for the period

The Second Account Mr. Morse submitted contained two questions:

and left on a vacation. paid the $50 citation fee. He anticipated that with t..hese su.bmissions no hearing would be held expressing his belief that Ms. Mize would be sending the signed original to the Court. He also on Ju.lle 16, 2003, and sent a copy to the Probate Court on JWle 23, 2003, with correspondence Mr. Morse then prepared a proposed second account, sent the original to Ms. Mize in California

show cause why she should not be held in contempt. 2003, the Court ordered the executrix, Ruth Ann Mize, to appear personally on June 23,2003, to Mr. Morse failed to timely file the account by the extended Court deadlines, and on June 12, issued a number of citations for these failures. With respect to the second account for the estate, What began as procrastination eventually became culpable neglect. As a consequence, the Court

filed twelve (12) petitions to extend filing deadlines. replaced as counsel for the estate. During the period oftime of Mr. Morse's representation, he County Probate Court on or about September 22, 1998. On June 27, 2003, Mr. Morse was Mr. Morse filed his appearance in the Estate of the late Bertha McInnes in the Rockingham

narrative report accurately summarizes the history of this matter. Stipulation in its findings, detennined by clear and convincing evidence that the following After giving due consideration to this evidence, the Panel in addition to incorporating the Findings of Fact and Rulings of Law p. 10 Page 3 ofS

tax work. could expect to receive a sizeable tax refund. Mr. Morse even billed the client for this incomplete falsely informed the executrix that tax returns had been filed and even advised her that the estate subsequent attempt by Mr. Morse to correct this false representation. In addition, Mr. Morse expectation that he would make these filings in the near future. The record, however, shows no filed those returns. At the hearing, he asserted that he made those representations in the returns for the estate and for Mrs. McInnes personally were misleading because, in fact, he never lvfr. Morse admits that the assurances he caused to be made to the Court that he had filed tax

returns that Mr. Morse claims to have prepared in 2003, but never filed. Mr. Morse produced was apparently incomplete, for it did not contain the work sheets of tax for him to do so. There was no good reason for this delay. Even at that late date, the copied file delayed producing a copy until October 6, 2003, despite repeated and ever more urgent requests New counsel replaced Mr. Morse onJune 27, 2003, and asked him for the estate file. Mr. Morse

delinquencies, particularly in the area of the unfiled tax returns. caused by these delays was further compounded by his efforts to forestall revelation of his inattention, incompetence, lack of diligence and negligence in handling this matter. The hann interests of the estate. The Panel found that these were the consequence of Mr. Morse's file the inventory and annual accounting forms with the Court caused avoidable hann to the During the course of his representation, Mr. Morse's repeated Petitions for Extension of Time to

the judge, she fired Mr. Morse and retained new counsel. to New Hampshire and appeared at the contempt hearing on June 23, 2003. After meeting with However, contrary to Mr. Morse's expectations, the executrix actually did travel from California

be true. Mr. Morse checked the"yes" box with each of these questions although he knew this not to p. 11 2002

that he neglected to provide a copy of his hand-written tax forms for successor counsel. thereby further contributing to the harm to the estate. Significantly, Mr. Morse asserted compliance, Mr. Morse delayed turning over a copy of the file for over three months, interests of the estate. Despite repeated requests and his repeated assurance of on Mr. Morse to copy the file in an expeditious manner to protect the already jeopardized given the protracted procedural history of this probate filing, it was especially incumbent 2. That Mr. Morse violated Rule 1.16( d): Return of the File. Despite repeated requests, and

offered no adequate explanation for his failures in this regard. Morse caused significant and avoidable harm to the interests of the estate. Mr. Morse failure to take the necessary steps to finalize and close out the estate administration, Mr. repeatedly failing to file timely estate administration documents for the estate, and by his I. That Mr. Morse violated Rule 1.1(1): Competence and Rule 3(1): Diligence. By

The Hearing Panel finds by clear and convincing evidence the following violations of the Rules:

retained copies for my file." In fact, Mr. Morse failed to prepare anything suitable for signature. Morse asserted at that time that"[t]he [tax] returns were prepared for Mrs. Mize signature. I In his September 24, 2004, reply to the PCC complaint, [Disciplinary Counsel's Exhibit 4] Mr.

explain why he had not filed any timely tax returns during the period of his representation. not turn those forms over to successor counsel with the rest of the file in 2003, nor could he the day before the Panel hearing. Perhaps. He provided no adequate explanation for why he did failed to turn them over to successor counsel with the rest of his file, not producing them until in hand-written fonn in 2003, but that for inexplicable reasons he kept those forms in his file and Mr. Morse asserted at the hearing, that he had prepared the tax returns for tax years 1998 -

compensated the estate for these financial losses. legal fees charged by successor law firms for filing the required tax returns. Mr. Morse has never assessment of IRS penalties and interest, the loss of tax refunds due to late filing and expanded Mr. Morse's omissions and evasions resulted in significant harm to the estate, including the p. 12 PageS of8

Aggravating factors:

the following aggravating and mitigating factors. The Hearing Panel felt that suspension was the baseline sanction in this case and then considered

proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. and takes no remedial action, and causes injury or potential injury to a party to the legal are being submitted to the court or that material infoTITIation is improperly being withheld, Suspension is generally appropriate when a lawyer knows that false statements or documents

Lawyer Sanctions provides as follows: Dishonesty were the most serious infractions. Section 6.12 of the ABA Standards for Imposing The Hearing Panel felt that the violations of Rule 3.3(1); Candor to the Tribunal and Rule 8.4(c); Recommended Sanction

believe they had. this was the case and delivered communications to her which were calculated to make her neglected to infoTITI Ms. Mize that required tax returns had not been filed though he knew 4. Dishonesty, Rule 8.4(c); Throughout his representation of the estate he purposely misrepresentation. [Disciplinary Counsel Exhibit lA, page 308]. He made no effort to correct that nonetheless, unequivocally indicated that the tax forms had been filed and the taxes paid. the time he made those false representations that he had not filed the tax fOTITIs. He, knowingly, in the hope that future events would cover the omission. Mr. Morse knew at IRS.] The Hearing Panel fmds that those assertions were not done by mistake but done letter from Morse's office to the Court indicating that he was awaiting refunds from the factual assertions to the Court about the tax filings. [See Stipulation, Paragraph 85, cover 3. That Mr. Morse violated Rule 3.3(1); Candor to the Tribunal; Mr. Morse made false

Those actions caused additional hann and expense to the estate. Nor did he infoTITI counsel that those tax fOTITIS existed and that they were never filed. p. 13 Page 6 of8

inform successor counsel of tax issue, caused:further financial harm to the estate. over in sufficient time, ignoring the fact that the delay, compounded by his failure to it over to successor counsel sooner, he asserted at the hearing that the file was turned actions. And, while Mr. Morse admitted that he should have copied the file and turned explanation at the hearing was a clear attempt to minimize the wrongfulness of his return for the estate and never even prepared those forms in typed form, his was made in expectation of future events. Given that Mr. Morse never filed a tax fiied, when he knew they had not been, he asserted at the hearing that the statement estate. For example, while admitting that he indicated to the Court that tax forms were of proof, Mr. Morse sought to minimize his actions and the harm they caused to the Morse's reluctance to accept full responsibility for his actions. Even during his offer c. Refusal to acknowledge wrongful nature of conduct. The Heating Panel noted Mr.

filed any tax return for the estate during his representation. expecting a return to the estate of approximately $10,000. In truth, Mr. Morse never had not and by further implying that he had filed the appropriate forms and was that the tax returns had been prepared for the executrix's signature, when, in fact, they deceptive representation to the PCC in his September 24, 2004, letter when he asserted disciplinary process. The Hearing Panel noted that Mr. Morse made a false and b. Submission of false evidence, false statements, or other deceptive practices during the

imposed while Mr. Morse was in the midst of his representation ofthis estate. clients reasonably informed. Particularly troubling is the fact that this censure was and effective manner, to act with reasonable promptness and diligence or to keep his to provide competent representation, to take actions on behalf of his clients in a timely marked similarities to the violations in this case in that there, as here, Mr. Morse failed 1990 to 1996 [LD-99-003, In the Matter of Lynn D. Morse]. That violation bore Hampshire Supreme Court, on September 13, 2001 for misconduct that occurred from a. Prior Disciplinary Offense. Mr. Morse was publicly censured, by order of the New p. 14 Page 7 of8

the following sanction be imposed upon Lynn D. Morse for violation of the New Hampshire recommends that the New Hampshire Supreme Court Professional Conduct Committee request In accordance with New Hampshire Supreme Court Rule 37(A) (III)(d)(l) the Hearing Panel

show remorse and regret for his professional failings. c. Remorse. Although tempered by his tendency to minimize his conduct, Mr. Morse did

question that he enjoys a good reputation. matter and whose position was, in this case, adverse to his. Tne Panel has no reason to have worked for him, even to include the paralegal who did the bulk of the work on this investigation, that Mr. Morse is highly regarded in his community and by people who b. Character or reputation. Disciplinary Counsel offered her opinion, based on her own

manner, the Panel found this was not the primary motive for the misconduct. that he benefited from legal fees for work not completed or done in an unsatisfactory appear to engage in this misconduct for personal financial gain. While it can be argued a. Absence of selfish motive. The Hearing Panel found it significant that Mr. Morse did not Mitigating factors:

made any effort to compensate the estate for its financial losses due to his misconduct. £ Indifference to making restitution. There is no indication in the record that Mr. Morse

experience in the practice oflaw, including significant work in probate matters. e. Substantial experience in the practice of law. Mr. Morse has over thirty years of

California to New Hampshire to respond to the Court's order to appear. Mize, experienced significant emotional distress and was forced to travel from legatees died during the period the estate remained unresolved. The executrix, Ms. whom were elderly and/or infirm and in need of the assets from the estate. One of the d. Vulnerability of victims. The victims here were the executrix and legatees, all of p. 15 Page 8 of8

File Lynn D. Morse, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:"--~----. i, i Hearing Pan"l Chair Rob~rt C."{ fulley, Esquire September 1;1.,2008

Conduct Committee for all costs associated with the investigation and prosecution of this matter. The panel also recommends that Lynn D. Morse be ordered to reimburse the Professional

Mr. Morse must agree to comply with the terms of that plan for one year after readmission.

including a provision for mentoring and supervision. Submission of a plan that is approved by the PCC, for office management, Completion of 12 hours of ethics training Full restitution to the victims conditions imposed for reinstatement: Two [2] years suspension from the practice of law in New Hampshire with the following

Return of the File; Rule 3.3( p. 16 1): Candor to the Tribunal and Rule 8.4 (c): Dishonesty: Rules of Professional Conduct: Rule 1.1(1): Competence; Rule 3(1): Diligence; Rule 1.16(d): 1

See Answer at'j) 3 (not denied).

3. At all times relevant to this matter, Ms. Mize resided in Lodi, California.

'j) 2.

McInnes' Will named her niece, Ruth Ann Mize, as executrix. Answer at

2. On September p. 16 12, 1998, Bertha McInnes died at the age of 86 years. Ms.

03833. Answer at'j) l. p. 16 1

address is Morse Law Office, p. 16 14 Front Street, Exeter, New Hampshire

Water Street, Exeter, New Hampshire 03833. Mr. Morse's current

proceeding, Mr. Morse operated his law office as Morse Law Office, 8 p. 16 1

Morse was admitted to practice in p. 16 1972. At all times material to this

l. Mr. Morse is an attorney licensed to practice law in New Hampshire. Mr.

I. Stipulation of Facts

1"Answer" sigrrifies Attorney Lynn D. Morse's Answer to the Notice of Charges dated May 6, p. 17 2008.

Exh. 1 at 14.

property and $115,000.00 was listed as real estate. Answer at'If 8; DC

at $461,500.00. Of that amount, $346,500.00 was listed as personal

8. The Petition for Estate Administration listed the total value of the Estate

p. 17 29.

day until a final accounting is made ...." Answer at'If 7; DC Exh. 1 at

The Order instructed:"An account must be filed each year on the same

Accounting Due Date: 11/ p. 17 24/99

Inventory Due Date: 0 p. 17 2/21/99

dates for the Estate's financial documents:

7. By Order dated November p. 17 25, 1998, the Court assigned the following due

November p. 17 23, 1998. Answer at'If 6; DC Exh. 1 at 26.

6. A bond in the amount of $350,00.00 was approved by the Court on

Estate Administration. Answer at'If 5; DC Exh. 1 at 15.

5. On October 5, 1998, the Court (Hampe, J.) approved the Petition for

fee. Answer at'If 4; DC Exh. 1 at 1 p. 17 2-22.2

certain other forms ("AU-lOl" and"AU-lOIB"), as well as a $130.00 filing

Ms. McInnes' Will, Mr. Morse's Appointment as Resident Agent, and

McGinnis' original Death Certificate, a Petition for Estate Administration,

County Probate Court an Appearance on behalf of Ms. Mize, Ms.

4. On or about September p. 17 22, 1998, Mr. Morse filed in the Rockingham p. 18 3

bates-stamped numbers in the bottom-right hand corner of every page. This,"DC Exh. 1 at 12-22" signifies pages 2 *"DC Exh." signifies Volumes 1, lA, and 2 of Disciplinary Counsel's Exhibits. The page citations are to the

p. 18 36.

date for the Inventory to April 21, 1999. Answer at 11 p. 18 3; DC Exh. 1 at

1 p. 18 3. The Court (Taube, J.) granted Mr. Morse's request and extended the due

estate. Answer at'il 12; DC Exh. 1 at p. 18 36.

guardianship estate would serve as the inventory values of the probate

estate to sign a receipt of the guardianship funds. The balance of the

necessary in order for the executrix to be appointed to administer the

been finalized and closed. The closing of the guardianship action was

McInnes in a guardianship action (docket # 1998-0 12 p. 18 3) that had not yet

12. Prior to Ms. McInnes' death, Mr. Morse had been representing Ms.

Answer at 1 11; DC Exh. 1 at p. 18 36.

Executrix receives the guardianship Estate. Docket #1998-012 p. 18 3, has been completed and the account in the Guardianship of Bertha McInnes, The inventory cannot be completed until the final

extension as follows:

11. In his March 19, 1999 PET, Mr. Morse explained the need for an

1 10; DC Exh. 1 at p. 18 36.

Time (hereinafter referred to as"PET") to file a late inventory. Answer at

10. On or about March 19, 1999, Mr. Morse filed a Petition for Extension of

9; DC Exh. 1 at p. 18 36.

9. No Inventory was filed on the February 21, 1999, due date. Answer at 1

12-22 of the fIrst exhibit book.

Exh. 1 at 56.

due date for L~e Inventory to SepterDber 1, 1999. Answer at il19; DC

19. The Court (Taube, J.) granted Mr. Morse's fourth PET and extended the

DC Exh. 1 at 56, 58.

for this PET was the same as for the other three PETs. Answer at ~ 18;

extension until September 1, 1999, to file the Inventory. The rationale

18. On July 16, 1999, Mr. Morse filed a fourth PET, this time seeking an

at 52.

due date for the Inventory to July 16, 1999. Answer at ~ 17; DC Exh. 1

17. The Court (Taube, J.) granted Mr. Morse's third PET and extended the

~ 16; DC Exh. 1 at 52.

rationale for this PET was the same as for the other two PETs. Answer at

seeking an extension until July 16, 1999 to file the Inventory. The

16. On or about June 11, 1999, Mr. Morse filed a third PET, this time

granted Mr. Morse's request. Answer at ~ 15; DC Exh. 1 at p. 19 47,49.

the final account in the guardianship proceeding. The Court (O'Neill, J.)

same as for the first PET: Mr. Morse needed additional time to balance

1999, to file the Inventory. The rationale for the second PET was the

15. On May 21, 1999, Mr. Morse filed a PET seeking a deadline of June 11,

not filed by May 21, 1999. Answer at ~ 1 p. 19 4; DC Exh. 1 at 44.

Morse had not filed the Inventory and that a citation would issue if it was

1 p. 19 4. By Order dated April 21, 1999, the Court notified Ms. Mize that Mr. p. 20 5

Answer at ~ 2 p. 20 5; DC Exh. 1 at 106.

complete. The Attorney for the Estate needs additional time to property assets that have been sold or transferred. This is a complex Estate with a number of personal

2 p. 20 5. Mr. Morse described the grounds for this first PET as follows:

sought a due date of April 24, 2000. Answer at ~ 24; DC Exh. 1 at 106.

extension on the deadline for filing the Account. Mr. Morse's first PET

24. On or about February 23,2000, Mr. Morse filed a PET, seeking an

days. Answer at ~ 23; DC Exh. 1 at 104.

Mize that a citation would issue if the Account was not filed within 30

default. A $2 p. 20 5 default fee was assessed. The Court further notified Ms.

not filed an Account (due November 24, 1999) and the case was in

23. On February 23, 2000, the Court notified Ms. Mize that Mr. Morse had

consented to the sale. Answer at ~ 22; DC Exh. 1 at 103.

McInnes' real estate had been sold and all interested persons had

22. On or about February 4,2000, Mr. Morse notified the Court that Ms.

with several other forms. Answer at ~ 21; DC Exh. 1 at 6 p. 20 5, 73-94.

21. On or about September 27, 1999, Mr. Morse filed the Inventory, along

at 62.

Inventory was not filed by October 1, 1999. Answer at ~ 20; DC Exh. 1

Morse had not filed an Inventory and that a citation would issue if the

20. By Order dated September 1, 1999, the Court notified Ms. Mize that Mr. p. 21 6

2000.. A.nS""vVer at 11 31; DC EXt~. 1 at 140.

31. The First Account was allowed by the Court (Cassavechia, J.) on July 31,

Answer at'If 30; DC Exh. 1 at 124, 140-5 p. 21 6.

a petition to make interim distributions to the three residuary legatees.

30. On or about June 23, 2000, Mr. Morse filed the First Account, along with

Exh. 1 at 119.

show cause why the Account had not been filed. Answer at'If 29; DC

further required that Ms. Mize appear at a hearing on June 2 p. 21 6,2000, to

that Mr. Morse had failed to file the Account by the due date. The Order

29. In an Order dated May 22,2000, the Court (Maher, J.) notified Ms. Mize

114.

extended the due date to May 19, 2000. Answer at'If 28; DC Exh. 1 at

28. On May 8,2000, the Court (Hampe, J.) granted the second PET and

114.

sufficient time to complete the account." Answer at'If 27; DC Exh. 1 at

described the grounds for the second PET as follows:"I have not had

the Account, seeking a new due date of May 19, 2000. Mr. Morse

27. On or about April 21, 2000, Mr. Morse filed a second PET with respect to

10 p. 21 6.

extended the due date to April 24, 2000. Answer at'If 2 p. 21 6; DC Exh. 1 at

2 p. 21 6. On March 13, 2000, the Court (Taube, J.) granted the first PET and p. 22 November 1999). Answer at

shares of Avaya, Inc., common stock resulting from a The Estate has recently learned that it owns·certain

38. Mr. Morse described the grounds for the second PET as follows:

2001. .Ansvler at'If 37; ·DC Exh. 1 at 165, 167.

the Second Account, seeking an extension of the due date to June 22,

37. On or about April 27, 2001, Mr. Morse filed a second PET with respect to

at'l! 36; DC Exh. 1 at 160, 163.

extended the due date for the Second Account to April 27,2001. Answer

36. On March 7,2001, the Court (Maher, J.) granted the first PET and

Answer at'1J 35; DC Exh. 1 at 160.

account. additional time to complete the returns a.."d the be closed. The Attorney for [sic] Estate needs returns are being prepared that will allow the Estate to This is a complex Estate with a number of assets. Tax

35. Mr. Morse described the grounds for the PET as follows:

24,2000, to April 27, 2001. Answer at'l! 34; DC Exh. 1 at 160.

Second Account, seeking an extension of the due date from November

34. On or about February 23,2001, Mr. Morse filed a PET with respect to the

hour. Answer at'1J 32; DC Exh. 1 at 151.

"Prepare 1998 Fm 1040." The entry lists 1.5 hours spent, at $120.00 per

33. A time entry in Mr. Morse's legal bill dated April 15, 1999, states:

-'1J 32; DC Exh. 1 at 150-54.

the Estate covering the time period of the First Account (November 1998

32. Mr. Morse attached as an addendum to the First Account his legal bill for p. 23 8

Answer at'1/ 44; DC Exh. 1 at 177.

account can be filed. stocks. Following a receipt of these payments a final the sale of the Avaya, Inc. and Lucent Technologies The Estate is still waiting to receive final payment for

44. Mr. Morse described the grounds for the fourth PET as follows:

17,2001. Answer at'1/ 43; DC Exh. 1 at 177.

to the Second Account, seeking an extension of the due date to October

43. On or about August 17, 2001, Mr. Morse filed a fourth PET with respect

173.

extended the due date to August 17, 2001. Answer at'1/42; DC Exh. 1 at

42. On July 9,2001, the Court (Hampe, J.) granted the third PET and

Answer at'1/41; DC Exh. 1 at 173.

account can be filed. stocks. Following a receipt of these payments a final the sale of the Avaya, Inc. and Lucent Technologies The Estate is still waiting to receive final payment for

41. Mr. Morse described the grounds for the third PET as follows:

2001. Answer at'1/40; DC Exh. 1 at 173,175.

the Second Account, seeking an extension of the due date to August 17,

40. On or about June 22, 2001, Mr. Morse filed a third PET with respect to

165, 16 p. 23 8.

extended the due date to June 22, 2001. Answer at'1/ 39; DC Exh. 1 at

39. On May 7,2001, the Court (Hampe, J.) granted the second PET and

Answer at'1/ 37; DC Exh. 1 at 165.

shares must be sold before a final account can be filed. distribution from Lucent Technologies, Inc. These p. 24 9

50; DC Exh. 1 at 184.

to show cause why the Seco:nd Account had not been filed. Answer at 1f

she was required to personally appear at a hearing on January 14, 2002,

50. In its December 7,2001, Order, the Court further notified Ms. Mize that

deadline. Answer at'll 4 p. 24 9; DC Exh. 1 at 184.

Mize that Mr. Morse had failed to file the Second Account by the

4 p. 24 9. By Order dated December 7,2001, the Court (Maher, J.) notified Ms.

Answer at'll 48; DC Exh. 1 at 180.

extended the due date for the Second Account to December 7,2001.

48. On October 2 p. 24 9, 2001, the Court (Hampe, J.) granted the fifth PET and

Answer at 1f 47; DC Exh. 1 at 180.

which is awaiting sale at auction. one antique item in the possession of Skinner, Inc. the sale of the Lucent Technologies stocks. There is The Estate is still waiting to receive final payment for

47. Mr. Morse described the grounds for the fifth PET as follows:

2001. Answer at 1f 46; DC Exh. 1 at 180.

the Second Account, seeking an extension of the due date to December 7,

46. On or about October 17, 2001, Mr. Morse filed a fifth PET with respect to

at 177, 17 p. 24 9.

extended the due date to October 17,2001. Answer at 1f 45; DC Exh. 1

45. On September 4,2001, the Court (O'Neill, J.) granted the fourth PET and p. 25 10

Answer at ~ 56; DC Exh. 1A at 202-03.

(Emphasis in original).

5/1/02. that the account now due is filed no later than On the submission, no finding is entered on condition

failure to account. Document 37. in response to the 2/8/02 citation order issued for her The executrix appeared through her counsel this date

56. In an Order dated April 1,2002, the Court (Cassavechia, J.) held:

Exh. lA at 193.

explain why the Second Account had not been filed. Answer at ~ 55; DC

she was required to personally appear at a hearing on April 1, 2002, to

55. In its February 8, 2002, Order, the Court further notified Ms. Mize that

2002, due date. Answer at ~ 54; DC Exh. 1A at 193.

that Mr. Morse had not filed the Second Account by the February 8,

54. By Order dated February 8,2002, the Court (Maher, J.) notified Ms. Mize

2002. Answer at ~ 53; DC Exh. 1A at 189, 192.

extended the due date for the filing of the Second Account to February 8,

53. On January 28, 2002, the Court (Hampe, J.) granted the sixth PET and

Answer at ~ 52; DC Exh. 1A at 189.

Account has been prepared for forwarding to the executrix in CA."

52. Mr. Morse described the grounds for the sixth PET as follows:"The

8,2002. Answer at ~ 51; DC Exh. 1A at 189.

to the Second Account, seeking an extension of the due date to February

51. On or about January 14,2002, Mr. Morse filed a sixth PET with respect p. 26 11

208,21l.

extended the due date to July 25, 2002. Answer at'lI 62; DC Exh. 1A at

62. On June 26, 2002, the Court (Maher, J.) granted the eighth PET and

Answer at'lI61; DC Exh. 1A at 208.

funds. and the Estate will be closed upon receipt of those Avaya stock. All other shares have been liquidated The Estate is still awaiting proceeds from the sale of

6l. Mr. Morse described the grounds for the eighth PET as follows:

2002. Answer at'lI 60; DC Exh. lA at 208.

to the Second Account, seeking an extension of the due date to July 25,

60. On or about June 14,2002, Mr. Morse filed an eighth PET with respect

2002. Answer at'lI 59; DC Exh. 1A at 204.

extended the due date for the filing of the Second Account to June 15,

59. On May 13, 2002, the Court (Hampe, J.) granted the seventh PET and

Answer at'lI 58; DC Exh. 1A at 204.

those funds. liquidated and the Estate will be closed upon receipt of of stock in Avaya, Inc. All other assets have been The Estate is still waiting receipt of funds from the sale

58. Mr. Morse described the grounds for the seventh PET as follows:

2002. Answer at'lI 57; DC Exh. 1A at 204, 206.

to the Second Account, seeking an extension of the due date to June 15,

57. On or about April 30, 2002, Mr. Morse filed a seventh PET with respect p. 27 12

lA at 216.

extended the due date to Novernber 1, 2002. Answer at if 68; DC Exh.

68. On September 17, 2002, the Court (O'Neill, J.) granted the tenth PET and

Answer at ~ 67; DC Exh. lA at 216.

upon receipt of the Avaya funds. shares have been liquidated. The Estate will be closed filed with the company on March 21, 2002. All other sale of A vaya stock even though the sale order was The Estate has yet to receive the proceeds from the

67. Mr. Morse described the grounds for the tenth PET as follows:

1,2002. Answer at ~ 66; DC Exh. lA at 216,218. • to the Second Account, seeking an extension of the due date to November

66. On or about September 6,2002, Mr. Morse filed a tenth PET with respect

lA at 2 p. 27 12.

extended the due date to September 6, 2002. Answer at ~ 65; DC Exh.

65. On August 6, 2002, the Court (O'Neill, J.) granted the ninth PET and

Answer at ~ 64; DC Exh. lA at 2 p. 27 12.

of the Avaya funds. been liquidated. The Estate will be closed upon receipt company on March 21,2002. All other shares have Avaya stock. A request to sell stock was filed with the The Estate is still awaiting proceeds from the sale of

64. Mr. Morse described the grounds for the ninth PET as follows:

6,2002. Answer at ~ 63; DC Exh. lA at 2 p. 27 12,214.

the Second Account, seeking an extension of the due date to September

63. On or about July 25, 2002, Mr. Morse filed a ninth PET with respect to p. 28 13

request to extend the deadline to March 14, 2003. However, Judge

75. By Order dated January 15, 2003, Judge O'Neill denied Mr. Morse's

Answer at'If 74; DC Exh. lA at 225.

been completed. the transfer agent. It is not known why sale has not of Avaya stock Sale requested on March 21,2002 to The Estate is awaiting receipt for funds from the sale

74. Mr. Morse described the grounds for the twelfth PET as follows:

March 14, 2003. Answer at'If 73; DC Exh. lA at 225,227.

respect to the Second Account, seeking an extension of the due date to

73. On or about December 31,2002, Mr. Morse filed a twelfth PET with

lA at 220,223.

additional language:"No further extensions." Answer at'If 72; DC Exh.

72. Judge Hampe's November 25, 2002, Order included the following

December 31,2002. Answer at'If 71; DC Exh. lA at 220,223.

and extended the due date for the filing of the Second Account to

71. On November 25,2002, the Court (Hampe, J.) granted the eleventh PET

Answer at'If 70; DC Exh. lA at 220.

been completed. the transfer agent. It is not known why sale has not of Avaya stock Sale requested on March 21,2002 to The Estate is awaiting receipt for funds from the sale

70. Mr. Morse described the grounds for the eleventh PET as follows:

December 31,2002. Answer at'If 69; DC Exh. lA at 220, 222.

respect to the Second Account, seeking an extension of the due date to

69. On or about November 1, 2002, Mr. Morse filed an eleventh PET with p. 29 14

Hampshire that she had no know [sic] relatives, nor a of her neighbors convinced the State of New In addition, when my aunt became incompetent, some

coast. This has made my job quite difficult. at her request in her v,rill. r. .. 1y residence is on the"vest I am the executrix of my aunt, Bertha McInnes' Estate,

McInnes, docket number 1998-1002. I am writing in regards to the Estate of Bertha

79. In a letter to the Court dated May 21,2003, Ms. Mize wrote:

(Emphasis in original). Answer at'If 78; DC Exh. 1A at 237.

assurance. No further postponements shall issue. ordered to file the account in accordance with his is entered nor sanction is presently imposed. He is final account no later than May 23,2003, no finding On the administrator's assurance that he will file a

citation for failure to account. the court April 21, 2003 on the March p. 29 14, 2003 issued The administrator appeared through counsel before

78. By Order dated April 25, 2003, the Court (Cassavechia, J.) held:

April 21, 2003. Answer at'If 77; DC Exh. 1A at 235.

77. By subsequent Order, the Court continued the April 7, 2003, hearing to

Accounthad not been filed. Answer at'If 76; DC Exh. 1A at 229.

ordered Ms. Mize"to personally appear" and explain why a Second

2003, deadline. The Court scheduled a hearing for April 7,2003, and

Mize that Mr. Morse had not filed a Second Account by the February 10,

76. By Order dated February 10, 2003, the Court (Maher, J.) notified Ms.

2003. Answer at'jf 75; DC Exh. 1A at 225, 228.

O'Neill permitted Mr. Morse an extension of the due date to February 10, p. 30 15

aunt's will would be carried out. At their age these 84, 90 and 91. They have looked to me to see that my bulk of the Estate are in the later years of their lives, embarrassed and angry. The three recipients of the When I received your order dated April 25, 2003, I was

Estate to be settled. It seems to me that 5 years is much too long for an that they are administered as the decedent requested. responsibility to protect people's Estates and assure understanding that [sic] probate court had the a complaint against Mr. Morse. However, it was my complaint against Mr. Morse. It is not my desire to file New Hampshire Bar Association, if I wanted to file a they could not help me and that I could contact the things up and bring closure to this Estate. I was told see if there was anything that could be done to speed Last year, in frustration, I called the probate court to

numerous calls until he is in and available. returns my calls, ml'lking it necessary for me to ma.1<e letters trying to settle these matters. Mr. Morse never It has been 5 long years of numerous phone calls and

that he would handle the details to settle the Estate. more time in New Hampshire. Mr. Morse assured me required my attention. Therefore I could not spend time I had a full time position here in Lodi that hopefully wrap up the rest of her affairs. During this very slow. I made one more trip to New Hampshire to I will spare you the details, but the process has been

Estate. arrangements and start the process of settling her went back to New Hampshire to make funeral Shortly after my visit, my aunt passed away. Again, I decided to keep him on to continue representing her. Hampshire and he was familiar with her case, I As I didn't known any other attorney in New on her well being. At that time I also met Mr. Morse. immediately made a trip to New Hampshire to check neighbors had secured an attorney to represent her. I touch with the care facility and found that her letting me know of her condition. I immediately got in home, when a member of her church wrote to me will. I became aware that she had been put in a rest p. 31 16

your filing of the taxes without four weeks. your file. You told me that the State sbould respond to payout the remaining assets in the Estate and close from the State, you would then be able to proceed to the following Monday. As soon as you heard back would be filing the final taxes on the McInnes Estate When I spoke with you last, you told me that you

have had no response to any of our messages. have answering services if we are busy or away, we and while all of the numbers that you can reach us at We have left messages asking that you return our calls past four months to reach you by phone, to no avail. both my husband and I have tried repeatedly over the I deeply regret having to write this letter. However,

80. In an undated letter to Mr. Morse, Ms. Mize wrote:

See Answer at'If 79 (not denied); DC Exh. lA at 239-40.

assure that this is brought to an end. attorney. Please intervene and do what you can to this late time in the process to secure another I'm not an attorney. It doesn't make sense to me at process and make the final payments to those entitled. Please advise me what I need to do to finish this long

you meet with Mr. Morse. overnight, in the hopes that you will receive this before Friday, May 23 I am sending you this letter, rd. It is my understanding that he is to meet with you on

papers never arrived. to arrive at my home on Wednesday, May 21 st. The finished and promised to overnight the papers to me, hadn't received anything. He said he hadn't gotten it Monday of this week, I called his office to see why I would be sending me papers that I needed to sign. On by the deadline you have set. He also told me that he assured me that he would have everything wrapped. up I called Mr. Morse as soon as I got your notice. He

haven't been more effective in bringing closure to this. delays are hard to understand. I am ashamed that I p. 32 17

Failure of the fiduciary to appear may result in his/her THE FIDUCIARY MUST APPEAR AT THIS HEARING.

comply with the court's order of April 25, 2003. punished accordingly for the failure and neglect to he/she should not be held in contempt of court and At this hearing, the fiduciary must show cause why

further stated:

Mize that she was"to personally appear" at the hearing. The Order

Cause on Failure to File Account." In that Order, the Court notified Ms.

81. On June 12, 2003, the Court (Maher, J.) issued an"Order to Show

Answer at 11 80; DC Exh. 1A at 241.

receipt of this letter. I am expecting to hear from you immediately, upon

manner. not been able to see this matter concluded in a timely matter and find myself quite embarrassed that I have several trips to the east coast, specifically for this However, I have been available at all times, have made It has been difficult for me, in that I am so far away.

anything, is preventing the final closure of this Estate? and has the State approved the filing? What, if haven't. If they have been filed, when were they filed taxes have not been filed, please explain why they informed of the status of this file immediately. If the Probate Court, I am requesting that I be completely By this letter and a copy being sent to the Rockingham

they can enjoy it [sic] their lifetime. am anxious to see them receive their inheritance, so who benefit from this Estate, are of advanced age. I already passed away and the three women remaining who was to receive an inheritance from this Estate has have made you aware of my concern that one uncle including your losing your receptionist. However, I have slowed down the process of settling this Estate, I realize there have been some circumstances that p. 33 18

as follows: information on the Avaya stock. The documents are Hampshire return. I am also enclosing some further Probate Court and an amended State of New that need to be filed with the Rockingham County With this letter you will find a number of documents

82. In a letter to Ms. Mize dated June 17, 2003, Mr. Morse wrote:

(Emphasis in original). Answer at'If 81; DC Exh. 1A at 246.

parties of this case may appear at this hearing. removal as fiduciary and/or arrest. All interested p. 34 19

at ~ 84 (not denied); DC Exh. 2 at 791.

to New Hampshire for the June 23 hearing was $1,849.68. See Answer rd

Mr. Morse was not present. The cost to the Estate for Ms. Mize to travel

84. A hearing was held on June 23, 2003. Ms. Mize appeared at the hearing;

Answer at ~ 83; DC Exh. lA at 249.

and it will be filed on that date. executed account will be returned to me by June 20 to the Executrix for her signature. I anticipate the Executrix. The account has been prepared and mailed referenced Estate. The invoice was forwarded to the $50 representing the fine regarding the above Enclosed herewith please find my check in the sum of

83. By letter to the Court dated June 18, 2003, Mr. Morse wrote:

Answer at ~ 82; DC Exh. 2 at 728-29.

be able to close the Estate in the near future. 30. I hope that once this account is approved we will court wants to see the account filed by Monday, June me should you have any questions. As you know the ask that you review the enclosed documents and call I am enclosing a return envelope for your use. I would

Answer at'1I 85; DC Exh. 1A at 259-79.

copied documents on file. forward these to the Court for replacement of the account documents from the Executrix we will then '-' ....... """-"' ....... ..I..1-U V.. LI... n ......... .1.":>.1...1..1. .1. ..... '-''-' pt. V.1.1.1 e -.1.1ctl.;:j !:,.1.LC nnr-Po t-h10 .......ff.iro"'" 1~.;............. 0 ..... =1· ...... + ..... -f't'h.............:gl·~""1'""l'=-d information. labels and the UPS website delivery tracking received no reply. Enclosed are copies of the shipping been mailed back to this office but as of this date have return call to confirm the accounting documents had answering machine of Friday, June 20 requesting a th, A phone message was also left on the Executrix's information available for the return shipping envelope. at lO: 13 am, but as of this date there is no tracking delivered to the Executrix's home address on June 18 th the UPS website, that the overnight package was returned. This office was able to confirm by utilizing unclear as to why the documents have not yet been included with the mailing to the Executrix. It is completed return UPS overnight delivery envelope was home address in California to obtain her signature. A June 17 via UPS overnight delivery to the Executrix's th, The original second account was mailed on Tuesday,

withheld at the time of the sale of certain securities. Internal Revenue Service for monies that were schedule indicates, we are awaiting refunds from the obligations have been paid in full. As the information are still ample funds remaining in the Estate and all to confirm distributions made to the legatees. There I am also enclosing a Motion For Order Of Distribution

with my statement for legal fees. confirming the balance in the Estate account along are all the appropriate schedules and bank statements sum [of] $55 representing the filing fee. Also enclosed together with a check from the Estate account in the Second Accounting in the above referenced Estate, Enclosed herewith please find a copy of the Executrix's

cover letter:

office) filed an unsigned copy of the Second Account with the following

85. On June 23,2003, prior to the hearing, Mr. Morse (or someone from his p. 36 21

requesting that the accounting be an interim account executrix may have leave to submit a motion than July 31, 2003; provided, however, that the to a resolution. A final account shall be filed no later must make an even greater effort to bring this Estate contempt or imposing sanction. That said, Ms. Mize On this occasion the court forbears from issuing a

administer the Estate. yet cannot serve to excuse her legal duty to diligently disciplinary proceedings is in some respect laudable, it Conduct. If her voiced wish to spare Attorney Morse state Supreme Court Committee on Professional and/ or register an appropriate complaint with the is to discharge the attorney and secure another, her attorney is providing deficient services, her option responsible for the completion of administration. If The court explained to Ms. Mize that she is the party

from and enjoy it. with distribution while they still are able to benefit elderly relatives, and she would like to provide them Ms. Mize voiced exasperation. The legatees are all

with the May 23, 2003 deadline for a final account. assurance that he would be able to readily comply responsibility for the delayed administration and gave Morse on the executrix' behalf in which he took followed an April p. 36 21, 2003 appearance by Attorney reasonably responded. The April 25, 2003 order does not apprehend why her attorney has not detailed to the court seemed reasonable. The court has prepared and forwarded to her. The questions she clarified before she executes documentation that he answers to questions that she would like to have to her. She has attempted to contact him to secure result of her attorney's failure to discharge his duties April 25, 2003 order (underlying the show cause) is the Ms. Mize reported that her non-compliance with the

cause. Her attorney did not accompany her. 2003, on the June 12,2003 issued order to show Ruth Ann Mize, the executrix, appeared June 23,

86. On June 24, 2003, the Court (Cassavechia, J.) issued the following order: p. 37 22

at 991.

would get her the file"soon." See Answer at"if 91 (not denied); DC Exh. 2

the same date. In his email toMs. Brown, Mr. Morse assured her that he

91. Mr. Morse responded to Ms. Brown's July 14, 2003, email by an email of

(not denied); DC Exh. 2 at 990.

meet so that they could discuss the file "this week." See Answer at ~ 90

Ms. Brown wrote a follow-up email to Mr. Morse requesting that they

90. As of July 14, 2003, Ms. Brown had not received the file. On that date,

that time. DC Exh. 2 at 989.

the Estate file. Mr. Morse agreed to supply her with a copy of the file at

but now a paralegal for Mr. Tucker) contacted Mr. Morse about obtaining

89. In early July 2003, Ramona L. Brown (formerly Mr. Morse's paralegal,

Ms. Mize. Answer at ~ 88; DC Exh. 1A at 283.

88. On or about june 27, 2003, Mr. Tucker filed his appearance on behalf of

her. Answer at ~ 87; DC Exh. 1A at 283; DC Exh. 2 at 730-31.

Morse's representation and hired Charles F. Tucker, Esq., to represent

87. Following the hearing on June 23, 2003, Ms. Mize terminated Mr.

34.

(Emphasis in original). Answer at ~ 86; DC Exh. 2 at 732-

avoid through common diligence. unrelated to that which the executrix can reasonably complete what needs to be done. Any cause must be the cause and projecting the time necessary to rather than a final account on allegations explaining p. 38 23

taxes in the affirmative:

following two questions regarding Federal and State income and Estate

95. On the second page of the Second Account, Mr. Morse answered the

finalize the Estate. Answer at 1f 94; DC Exh. lA at 286.

Account and granted Mr. Tucker's request for an extension of time to

94. By Order dated July 18,2003, the Court allowed the filing of the Second

See Answer at 1f 93 (not denied); DC Exh. 2 at 743.

be kept advised as to the status of the Estate .... McInnes. I am sure, between Ruth Ann and I, you will Ms. Juke, Ms. Phyllis McInnes and Ms. Dorothy what remaining distribution amounts will be made to received, we will be in a better position to estimate be in excess of $15,000.00. Once the refunds are the State of New Hampshire, which he estimates may refunds from the Internal Revenue Service and from for the sale of the Avaya stock. He is still awaiting tax ... Since May, Attorney Morse has received $119.00

the Avaya stock and the Estate taxes as follows:

on the status of the case. Ms. Brown explained in the letter the status of

Brown wrote to the four residual legatees of the Estate and updated them

93. Contemporaneous with the filing of Mr. Tucker's July 18 pleading, Ms. th

Answer at 1f 92; DC Exh. lA at 286,288,307-26.

ending May 21,2003), which document had been prepared by Mr. Morse.

Account (covering the account period beginning November 24, 1999 and

Estate." Mr. Tucker enclosed with that pleading, inter alia, the Second

to Accept Interim Accounting and for Extension of Time to Finalize

92. On or about July 18, 2003, Mr. Tucker filed a pleading entitled,"Motion p. 39 24

04/10 / 00 Prepare NH Interest

04/10 /00 Prepare Form 1041

12/31/99 Prepare Form 1041

separate entries relative to state and federal taxes as follows:

97. Mr. Morse's legal bills for the period ofthe Second Account contain 10

15, (Emphasis in original). Answer at ~ 96; DC Exh. 1A at 314-

TOTAL TAXES $9,905.16 [sic]

Tax 1999-2003 NH Interest and Dividends $ 971.41

and real estate gains on sales of securities 1999-2003, including capital Form 1041, Income Tax $9,933.75

96. Schedule 4 in the Second Account states:

Answer at ~ 95; DC Exh. 1A at 308.

been filed and the taxes connected therewith paid? Estate which are due at the time of filing this account Have all Federal and State Income Tax Returns of the

been filed and the taxes connected therewith paid? decedent for the period ending with his/her death Have all Federal and State Income Tax Returns of the p. 40 25

receipt of those funds there can be a final the sale of some of the Estate's securities. Upon sum represents prepaid taxes withheld at the time of 1041 income tax returns in excess of $15,000. This from the sale of the Avaya stock and refunds on FM The Estate is still awaiting receipt of funds resulting

obligations of the Estate have been paid. each of the three legatees. All taxes, debts and other Distribution to confirm the distribution of $60,000 to Filed with this account is a Motion For Order Of

Mr. Morse wrote:

99. In an addendum to the Second Account entitled"Information Schedule,"

$352.47. Answer at'If 98; DC Exh.. 1A at 313.

mUltiple PETs related to the Second Account, is listed in Schedule F as

98. The total value of the Avaya stock (22 shares) which was the subject of

Answer at'If 97; DC Exh. 1A at 317-2l.

soon." See Answer at ~ 104 (not denied); DC Exh. 2 at 1007.

telephone. He assured her that he would get her the Estate file"very

104. On September 5,2003, Ms. Sennott spoke with Mr. Morse on the

'1r 103; DC Exh. 2 at 1360;

Mr. Morse submit the documentation by September 25, 2003. Answer at

listed the documentation she needed from Mr. Morse and requested that

review indicated that additional information is required." Ms. Laporte

Succession Tax Return for tIle Estate. Ms. Laporte wrote that a"routine

Administration ("DRA"), acknowledged receipt of a Legacy and

Tax Auditor for the New Hampshire Department of Revenue

103. In a letter to Mr. Morse dated September 5, 2003, Denise F. Laporte, a

of Ms. Mize. See Answer at ~ 102 (not denied); DC Exh. lA at 302.

102. On or about August 29,2003, Ms. Sennott filed an Appearance on behalf

(not denied); DC Exh. 2 at 763,767-68.

Andrea L. Sennott, Esq., to close out the Estate. See Answer at ~ 101

to have Ms. Brown remain on her case. As a result, Ms. Mize retained

work at Robinson, Boesch, Sennott & Aeschliman, PA. Ms. Mize desired

101. In or about mid-August of 2003, Ms. Brown left Mr. Tucker's law firm to

days. See Answer at ~ 100 (not denied); DC Exh. 2 at 1000.

that he would be hand-delivering the Estate file to her in the coming

100. In an email toMs. BrowndatedJuly25,2003,Mr. Morse assured her

Answer at ~ 99; DC Exh. 1A at 323.

closed. disbursement to the legatees and the Estate will be p. 42 27

but this is really weighing heavy on my mind. Have you gotten the file yet? I'm sorry to be a pest,

Hi Ramona!

108. On October 2, 2003, Ms. Mize wrote the following email to Ms. Brown:

See Answer at ~ 107 (not denied); DC Exh. 2 at 779.

a final account within the next couple of weeks. once I receive the file, that we cannot prepare and file I certainly will keep you posted. There is no reason,

enough bad publicity. will not have to file the motion, as I think he has had the Estate file from Lynn. I am very hopeful that we Court, advising the Court that we are unable to obtain were going to file a motion for instruction with the some reason he still was not ready to part with it, we Thursday to pick up the file. I also told her that, if for and told her that I would be at his office at 12:00 p.m. instruction. I called Laurie, at Lynn's office, yesterday should do and the Clerk suggested we file a motion for much success. I called the Court and asked what we two different occasions requesting the file, without ... Attorney Sennott has spoken with Lynn on at least

Morse:

the difficulties her office was having getting a copy of the file from Mr.

107. In a letter to Ms. Mize dated September 24,2003, Ms. Brown explained

Exh. 1A at 293.

Final Account must be filed by October 31,2003. Answer at ~ 106; DC

106. Also on September 8, 2003, the Court (Cassavechia, J.) held that the

Answer at ~ 105; DC Exh. lA at 3 p. 42 27; DC Exh. 2 at 777.

Mr. Tucker's Motion to Withdraw and approved the Second Account.

105. By Order dated September 8, 2003, the Court (Cassavechia, J.) granted p. 43 28

mind too. we are running out of time. It weighs heavy on my longer. The final account is to be filed October 30 and will look real good for Lynn. We just can't wait any judge at the time we file the motion, I am not sure it wait any longer. If Judge Cassevechia is the sitting Monday if we do not get the file from him. We cannot motion for instruction with the court and will file it Andrea about it yesterday and we will be preparing a this. It's just Lynn being Lynn again. I talked to friends, he would be a little more cooperative than excuse after another. I really thought, where we were he's out of paper, the copier isn't working, or one and he calls and cancels at the last minute because daily. I've made appointments with him to pick it up no, Lynn still hasn't gotten the file to us. I've tried It is with much regret that I have to inform you that,

feel like: at the same time. I can't imagine what that's going to yesterday that was going to have both knees replaced Good to hear you are improving. I met with a woman

Hi Ruth Ann:

109. Ms. Brown responded to her email on October 3,2003, as follows:

See Answer at ~ 108 (not denied); DC Exh. 2 at 1009-10.

RuthAnn

Look forward to hearing from you soon. difference. started driving again yesterday. That makes a big is going well for you. I'm progressing quite well. I I hope you are happy with your new job and everything status of the filing? check to us. Is there any way to check with IRS on the worry about how long he will take to forward the tax The delay in handing over the file is annoying, but I help us clear everything up. situation, but I'm also very confident in your ability to I'm so sorry you are caught in the middle of this p. 44 29

Account, Ms. Brown was unaware that Mr. Morse had filed no tax

date of her October p. 44 29, 2003, letter, and the preparation of the Final

Mize (and the legatees) on the status of the Estate tax issues. As of the

113. In a letter to Ms. Mize dated October p. 44 29, 2003, Ms. Brown updated Ms.

letter to Ms. Sennott. See DC Exh. 2 at 1361.

adjustment. Mr. Morse did not forward Ms. Laporte's October 28, 2003,

Morse until November 17, 2003, to voice any disagreement with her

documentation in the file. Ms. Laporte indicated that she would give Mr.

making an audit adjustment ($12,034.00) on the basis of the

documentation requested in her letter dated September 5, 2003, she was

Auditor from DRA) indicated that, because she had not received the

112. In a letter to Mr. Morse dated October 28, 2003, Ms. Laporte (the Tax

returns. See Answer at'If 111 (not denied); DC Exh. 2 at 1384.

(which she had recently retrieved from Mr. Morse) of executed tax

some concerns regarding the lack of any evidence in the Estate file

111. In a letter to Ms. Mize dated October 15, 2003, Ms. Brown expressed

Account. See Answer at'If 110 (not denied); DC Exh. 2 at 792.

Morse. This was less than one month before the due date of the Final

110. On or about October 6, 2003, Ms. Brown received the Estate file from Mr.

See Answer at'If 109 (not denied); DC Exh. 2 at 1009.

going on. I'll talk to you next week. Be well. Mona being as bad as Lynn not letting you know what's I'm sorry I haven't called to let you know earlier. I am p. 45 30

return it to me with the signed Receipt. When I receive name on the enclosed form where I have indicated and with the enclosed account, please date and sign your and enclosed an assent form. If you are in agreement To expedite closing the Estate, I have also prepared

account. file receipts for the balance of the Estate listed on the probate Estate, however, we are required by statute to the anticipated tax refunds. In order to close the enclosed account, as well as the possible income from costs which have not been accounted for on the the Estate is closed. There will be additional fees and likely not be the dollar amount you will receive when dollar fu-nount listed on the enclosed Receipt will most All three of you must be aware, however, that the

that you will not be offended. the only one I had met personally and I am hoping apologize, Mrs. Juke, but, ofthe three of you, you are Juke one cent less than I did Phyllis and Dorothy. I does not equally divide into three shares, I gave Mrs. three of you. You will note that, because $15,028.08 Estate account ($15,028.08), divided between the amount on each Receipt is the current balance of the self-addressed, stamped envelope enclosed. The dollar for each of you to date, sign and return to me in the Accordingly, I have prepared and enclosed a Receipt need to file Receipts from the three of you. order for the Court to approve the account, we will that Ruth Ann currently has in the Estate account. In Estate with the Probate Court, based upon the funds Rather than wait any longer, I recommend closing the

with the IRS and the state with regard to the refunds. authority from Ruth Ann for this office to deal directly back. In the meantime, I have obtained written Revenue Administration. He has yet to ever call me Service and the New Hampshire Department of for the tax returns he filed with the Internal Revenue Morse's office with regard to the status of the refunds I have also left numerous messages with Attorney

29 letter, Ms. Brown wrote:

returns for either the Estate or Ms. McInnes, personally. In her October p. 46 31

See Answer at 1f 115 (not denied); DC Exh. 2 at 1396.

Thank you for your assistance in this matter.

Code. file any returns required by the Internal Revenue Estate and informing us so that we can prepare and Estate income tax status for the decedent and her We would appreciate your checking the individual and

since the decedent's death. but have found no signed copies for any of the years copy for calendar year 2002 for the Estate in the file, 1041) have been filed for the Estate. We found a draft whether any fiduciary income tax returns (Forms decedent's final 1040 (1998) and we need to know Accordingly, we need information concerning the sure L.~at all tax matters have been attended to. have assumed that role. We are attempting to make The attorney for the Estate has withdrawn and we

Ann Mize, of Lodi, California. duly signed by the Court appointed Executrix, Ruth I am faxing herewith Form 2848 for the subject Estate,

Estate:

Robinson, Boesch, Sennott & Aeschliman, PA, wrote on behalf of the

115. In a letter to the IRS dated October p. 46 31, 2003, William S. Boesch, Esq., of

Answer at 1f 114; DC Exh. 1A at 328, 339-50.

114. On or about October 30, 2003, Ms. Sennott filed the Final Account.

See Answer at 1f 113 (not denied); DC Exh. 2 at 792.

signature, please do not hesitate to call me. Account or the forms that I have enclosed for your If you have any questions at all regarding the Third

residue of the Estate. forward to each of you your one third share of the matters, Ruth Ann can close the Estate account and approves the account and we have finalized all tax them with the Probate Court. Once the Court all of the executed documents back from you, I will file p. 47 32

See Answer at'If 119 (not denied); DC Exh. 1A at 352-53.

before the end of the extension period. account in order to reflect these changes in the taxes on these matters. The executrix will amend the final Service and the Department of Revenue Administration process of communicating with the Internal Revenue prepared and filed. Counsel for the fiduciary is in the Prior to finalizing the Estate, the tax returns must be

(calendar years 1999 through 2002). and filed no income tax returns for the Estate decedent's final federal and state income tax returns fiduciary that prior counsel for the Estate failed to file It has recently come to the attention of counsel for tIle

requested extension was explained in the lYlotion as follows:

Extension of Time to file the tax certification letter. The reason for the

119. On or about January 8,2004, Ms. Sennott filed a Motion for an

denied); DC Exh. 1A at 351.

Succession Tax be filed by January 9,2004. See Answer at'If 118 (not

Hampshire Department of Revenue Administration for the Legacy &

Final Account on condition that the tax certification letter from the New

118. By Order dated December 1, 2003, the Court (Maher, J.) granted the

Morse's representation of the Estate.

return had been filed for either the decedent or the Estate during Mr.

records on file at the IRS office in Portsmouth and confirmed that no tax

117. Subsequent to learning this information, Mr. Boesch reviewed the

personal tax return was filed for the decedent. See DC Exh. 2 at 1406.

records revealed that no tax returns had been filed for the Estate and no

116. On or about November 3, 2003, Mr. Boesch learned from the IRS that its p. 48 ·33

issued a Certificate of Compliance for the Estate's Legacy and Succession

125. On or about March 16,2004, the DRA's Estate and Legacy Bureau

Answer at ~ 124 (not denied); DC Exh. 2 at 1130, 1203, 1267,

payment and filing penalties, and owed late interest payments. See

124. With respect to taxable years 1999, 2000, and 2001, the Estate owed late

refund. See Answer at'l!123 (not denied); DC Exh. 2 at 1552-54.

of the 1040, Mr. Boesch did not anticipate that the IRS would allow the

amount of $579.00. Because three years had passed since the due date

123. With respect to the decedent's 1040, Mr. Boesch sought a refund in the

2 at 1140, 1273, 1327.

Administration for the Estate during the years 1999-2002. See DC Exh.

DP-10's with the State of New Hampshire Department of Revenue

72 (for year 2001); 1314-25 (for year 2002). Mr. Boesch also filed Form

1131-39 (for year 1999); 1203, 1204-1211 (for year 2000); 1263, 1267-

122 (not denied); DC Exh. 2 at 1530-32, 1536-47 (for year 1998); 1130,

the Estate for the years 1999,2000,2001, and 2002. See Answer at'l!

of the decedent for the taxable year 1998, and a Form 1041 on behalf of

122. On or about February 24,2004, Mr. Boesch filed a Form 1040 on behalf

refunds. See Answer at ~ 121 (not denied).

the necessary tax returns and negotiating the applicable penalties and

121. Thereafter, Mr. Boesch began the process on behalf of the Estate of filing

the extension. See Answer at ~ 120 (not denied); DC Exh. 1A at 355.

120. In an O];der dated January 23, 2004, the Court (Cassavechia, J.) granted p. 49 34

this matter.

Professional Conduct Committee in the investigation and prosecution of

130. Lynn D. Morse, Esq. agrees to pay the expenses incurred by the

II. Stipulation as to Costs

Exh. 2 at 1559-64.

totaled approximately $8,000.00. See Answer at ~ 129 (not denied); DC

unfinished matters left open by Mr. Morse's representation of the Estate

129. The legal bill to the Estate for Ms. Sennott's firm to complete the

Exh. 2 at 1241-43.

Estate's outstanding IRS issues. See Answer at ~ 128 (not denied); DC

128. Sometime in or about August 2004, Mr. Boesch was able to resolve the

year time limit. See Answer at ~ 127 (not denied); DC Exh. 2 at 1552-54.

denying the decedent's tax refund because it was filed outside the three­

127. On or about April 8, 2004, the IRS notified Mr. Boesch that it was

surety bond. Answer at ~ 126; DC Exh. 1A at 358.

requirements of filing for the Estate and no longer needed to hold a

Discharge for the Estate, and certified that the fiduciary had met the

126. On or about March 22,2004, the Court issued a Certificate of Bond

DC Exh. 2 at 1375-77.

with the Court. See Answer at ~ 125 (not denied); DC Exh. 1A at 356-57;

Tax. Shortly thereafter, Ms. Sennott filed the Certificate of Compliance p. 50 ::35

Dated: ~ -'2. '7. 200H," ~.f

is nonetheless hereafter bound to the [ads "" stipulat.ed.

Condue!. Commii.!.ee does not agree wiih t he stipulation, the Hespoflden I.

bound to the facts as slipuhlt<:cL In the event that the Professional

131. Respondent understands that by signing thi" Stipulation, he is hen:by

m. Effect of Stipulation

Aug 28 08 03:30p LoJnn D. Morse (603) 778-1469 the appropriate sanction for Mr. Morse's misconduct.

p. 51 its decision in light of these fundarnentallegal principles. Disbarment is

Disciplinary counsel respectfully requests that the Committee reconsider

that a two-year suspension is appropriate for Mr. Morse's misconduct.

Committee misapprehended five critical legal principles in determining

1. In its Order dated January 28, 2009, the Professional Conduct

In support, Disciplinary Counsel states as follows:

28,2009.

Two Year Suspension with Conditions for Reinstatement" Order dated January

reconsideration of the Professional Conduct Committee's"Recommendation for

Hampshire Supreme Court Attorney Discipline Office, and seeks

NOW COMES Landya B. McCafferty, Disciplinary Counsel of the New

would need to alter its analysis of rules violations to find: (a) that Mr.

"gross negligence," as the Committee has suggested, the Committee

7. If, for purposes of determining sanction, Mr. Morse's intent was merely

paragraphs 163-64.

believe the tax returns had been filed. See Notice of Charges at

and did so with the intent to induce the Court and interested persons to

informed the Complainant and the Court that tax returns had been filed

6. The Notice of Charges in this case charged that Mr. Morse falsely

reliance upon it.") (guoting Carpenito's Case, 139 N.H. 168, 174 (1994)).

for the purpose of inducing another to act or to refrain from action in

(1996) ("An intentional misrepresentation requires a misstatement of fact

sustained without such a finding. See Basbanes Case, 141 N.H. 1,6

5. Indeed, a Rule 8.4(c) misrepresentation or deceit charge cannot be

8.4(c). Both rules involve misconduct constituting deceit.

clear and convincing evidence that Mr. Morse violated Rules 3.3(a)(l) and

4. In addition to violations of Rules 1.1, 1.3, and 1.16, the Committee found

evidence and is incorrect as a matter of law.

Mr. Morse's conduct as"gross negligence" is not supported by the

considered Mr. Morse's mental state. However, its characterization of

3. Under the second prong of the sanction analysis, the Committee properly

one of"gross negligence" rather than intentional deceit. A. The Committee erred in finding that Mr. Morse's mental state was

p. 52 2009, Order follows.

p. 52 2. A summary of the five errors of law in the Committee's January 28, p. 53 3

"one of intent." Standards, supra § p. 53 3.0 cmt. The respondent The record here shows that respondent's mental state was

supra s. II, at 6. that fraud would result from his actions. See Standards, conduct; or ( p. 53 3) a negligent failure to notice a substantial risk knowledge of the nature or attendant circumstances of his (1) the conscious objective to defraud Progressive; (2) the proper inquiry is whether the respondent acted with either: hindered his judgment. Therefore, even if panicked, the not the external pressures that could potentially have factor is the volitional nature of the respondent's acts, and Standards, supra § 3.0 cmt. What is relevant to the second state may be one of intent, knowledge, or negligence." factor four, mitigating factors. The respondent's"mental conflated factor two, the respondent's mental state, and finding, the Professional Conduct Committee appears to have specific intent to defraud his insurance carrier." In its financial ramifications of the accident, than evidence of a more a reflection of his initial panic over the family and Committee found that the respondent's"mental state was With respect to the second factor, the Professional Conduct

explained and corrected the error:

error in Grew's Case, 156 N.H. p. 53 361, 366 (2007). In that case, the Court

9. Respectfully, the Professional Conduct Committee made a similar legal

with the analysis of mitigating factors.

8. It appears that the Committee has conflated the mental state analysis

misrepresentation is cognizable under Rule 8.4(c). See Lane's Case, 15 p. 53 3

case. Moreover, it is an open question whether negligent

Committee's finding of deceit, an intentional act. This is not a negligence

analysis is not warranted. The evidence clearly supports the

misrepresentation is cognizable under Rule 8.4(c). Such a change in the

Morse committed only negligent misrepresentation, and (b) that negligent p. 54 4

"serious injury." A finding of "serious injury" is not required for

required under Standard 6.11, and that the injury to Ms. Mize was not

13. The Committee erred in that it held that a finding of "serious injury" was

6.11, applied.

Committee erred in two ways in finding that Standard 6.12, rather than

12. Third, the Committee erred in applying the Standards. Specifically, the

C. The Committee erred in applying Standard 6.12, rather than 6.11.

undertook to deceive the Court and his client in violation of Rule SA(c).

material fact" to the Court in violation of Rule 3.3(a)(1), and when he

dishonest, as a matter of law, when he made a "false statement of

Morse acted without any dishonest motive is clear error. Mr. Morse was

Mr. Morse violated Rules 3.3(a)(1) and SA(c), its further finding that Mr.

11. Second, in light of the Professional Conduct Committee's findings that

dishonest motive. B. The Committee erred in finding Mr. Morse acted without any

mental states.

to the Rule SA(c) charge was an intent to deceive, the"most culpable" of

under prong four of the analysis. Mr. Morse's mental state with respect

state under prong two of the analysis with the mitigating circumstances

10. Likewise, in this case, the Committee has confused Mr. Morse's mental

Grew's Case, 156 N.H. at 366.

with intent, which is "[tJhe most culpable mental state ...." deceive."... We therefore hold that the respondent acted acknowledged that he acted with "intent to injure, defraud or pled guilty to the charge of insurance fraud and has thus admits that his conduct"constituted a crime." Indeed, he p. 55 5

were false. He intended to deceive the Court thereby.

to the Probate Court about the tax returns. He knew his statements

16. Here, there is no question but that Mr. Morse submitted false statements

false statement, submits a false document ...."

appropriate when a lawyer"with the intent to deceive the court, makes a

question of Mr. Morse's intent. Standard 6.11 states that disbarment is

was 6.12 rather than 6.11 because of the Committee's error on the

1 p. 55 5. The Committee further erred in determining that the applicable Standard

to terminate the respondent and hire new counsel.

respondent's repeated late filings and, as advised by the Probate Court,

the Probate Court in New Hampshire solely in order to address the

denied, and (d) the complainant traveling from her home in California to

returns being filed late such that penalties were incurred and a tax credit

were left waiting for years for the full extent of their inheritance; (c) tax

the elderly legatees, each of whom was in need of financial assistance,

which time the estate incurred additional taxable years as a result; (b)

was necessary, during which time one of the legatees died, and during

harm, including: (a) an estate being opened for many years longer than

incompetence and deceit lasted in excess of four years, and led to serious

injury," (or"potentially serious injury"), where a respondent's

14. It is unclear how the Committee could determine there was not"serious

serious injury" to a party or to the legal proceeding is required.

Standard p. 56 6.11 to apply. Rather, a finding of"serious or potentially 6

charges of misconduct, the ABA recommends that the sanction imposed

violations, the Court has made clear that"[i]n the case of mUltiple

20. In cases such as this one, where a respondent commits multiple

sanction for his multiple offenses. E. The Committee erred in not increasing Mr. Morse's baseline

contrary is in error.

a matter of law. The Professional Conduct Committee's finding to the

accept responsibility. Thus, he is not entitled to a finding of remorse, as

before the Committee, he did not admit the misconduct, nor did he

both when he appeared at his sanction hearing and at oral argument

19. Here, while Mr. Morse may have seemed remorseful for his misconduct

violations.") (citation omitted).

find no evidence that Feld has accepted responsibility for his ethical

to his professional misconduct to truly demonstrate remorse .... We can

N.H. 19, 30 (2002) ("In cases involving dishonesty, a lawyer must admit

culpability to be entitled to remorse as a mitigator. See Feld's Case, 149

has made clear that, in deceit cases, a respondent must admit his

entitled to a finding of legal remorse under the Standards. The Court

in a generalized way, is distinct from the question of whether he is

18. The question of whether a particular respondent presents as remorseful,

finding of legal remorse. D. The Committee erred in concluding that Mr. Morse is entitled to a

the appropriate baseline sanction in this case is disbarment.

1 p. 57 7. For these reasons, Standard p. 56 6.11 applies to Mr. Morse's misconduct, and 7

(C) Grant such other relief as is fair and in the public interest.

Morse from the practice of law; and

(B) Issue a decision recommending that the Supreme Court disbar Mr.

(A) The Committee reconsider its decision dated January 28, 2009;

WHEREFORE, Disciplinary Counsel respectfully requests that:

Disciplinary Counsel to petition the Supreme Court for his disbarment.

to recommend that Mr. Morse be suspended, and instead order

22. For all of the above reasons, the Committee should reconsider its decision

21. The Committee erred in failing to account for the multiple offenses.

are also an aggravating factor. See Standards § 9.22(d).

(2005) (same). Further, the respondent's multiple offenses in this case

2009) (emphasis added). See also Richmond's Case, 152 N.H. 155, 160

misconduct. Conner's Case, 2009 WL 196564, at *3 (N.H., January 29,

and generally should be greater than the sanction for the most serious

instance of misconduct among a number of violations; it might well be

should at least be consistent with the sanction for the most serious p. 58 8

sent to Ms. Ruth Ann Mize, 26 Pinewood Court, i, Califor ia 95242. New Hampshire 03 p. 58 833, by regular mail postage pre· copy has also been 2009, to Lynn D. Morse, Esquire, Morse Law Office, 14 ront Street, Exeter, aforesaid"Motion to Reconsider" is being sent on this day of February Supreme Court Attorney Discipline Office, certifY that ti::t:iginal of the I, Landya B. McCafferty, Disciplinary Counsel of the New Hampshire

question of rules violations and the issue of appropriate sanction. In the hearing, Disciplinary regarding the facts of the case. The hearing before the Hearing Panel thus was limited to the In this matter, Disciplinary Counsel and the Respondent filed a lengthy Stipulation I. Background After thorough consideration, the Committee voted to affirm the Decision. and Marilyn Billings McNamara. Susan R. Chollet was absent. Thomas P. Connair, Alan J. Cronheim, Gerald A. Daley, Richard H. Darling, James R. Martin H. Nelson, Chair, Benette Pizzimenti, Vice Chair, Toni M. Gray, Vice Chair, David N. Cole, case, including the cases cited in the Motion, and deliberated. Members present were Margaret On May 19, 2009, the Professional Conduct Committee considered the full record of the Reconsider. Ms. Chollet abstained. Marilyn Billings McNamara. After discussion, the Committee voted to grant the Motion to Cronheim, Gerald A. Daley, Richard H. Darling, Gretchen Rule Hamel, James R. Martin and Toni M. Gray, Vice Chair, Susan R. Chollet, David N. Cole, Thomas P. Connair, Alan J. objection. Members present were Margaret H. Nelson, Chair, Benette Pizzimenti, Vice Chair, On March 17, 2009, the Committee considered the Motion and the Respondent's February 9, 2009. Reconsider ("Motion"). Mr. Morse ("Respondent") objected to the Motion by email on present case. By Motion dated February 4, 2009, Disciplinary Counsel filed a Motion to issued a Recommendation for Two-Year Suspension with Conditions for Reinstatement in the By decision dated January 28, 2009 ("Decision"), the Professional Conduct Committee

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 Tom 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>

suspension but can only recommend a longer suspension or disbarment. 3 Per N.H. Supreme Court Rule 37 A(IlI)( d)(2)(C), the Committee can directly impose a sanction up to a six-month the Rules of Professional Conduct, and adjusted the conditions of reinstatement. 2 The Committee also found, by clear and convincing evidence, a violation of Rule 8.4(a), in that Mr. Morse violated I The Hearing Panel Report erroneously identifies this as"Rule 3(1)".

lt is beyond dispute that the purposes of attorney discipline are to protect the public, maintain circumstances of the particular case before it. believes is appropriate, considering both the purposes of attorney discipline and the specific have not. The Committee thus retains the discretion to impose or recommend 3 a sanction that it compelling if the Standards had been adopted as binding in New Hampshire. However, they Disciplinary Counsel's arguments relative to the sanction would, perhaps, be more H. Discussion sanction based on aggravating factors. Standards for Imposing Lawyer Sanctions (1992) ("Standards") and did not increase the baseline the Committee applied Standard 6.12 rather than 6.11 of the American Bar Association's Counsel asserted that the Committee had made five errors of law in the Decision, including that Disciplinary Counsel then filed the Motion to Reconsider. In the Motion, Disciplinary Committee found an insufficient basis for elevating the sanction to disbarment. Decision, p. 6. Committee largely agreed with the conclusions of the Hearing Panel. 2 Specifically, the After hearing from Disciplinary Counsel and Mr. Morse and carefully considering the record, the additional aggravating factor, namely that Mr. Morse's behavior showed a pattern of misconduct. forcefully that the appropriate sanction was disbannent. Disciplinary Counsel also asserted an Disciplinary Counsel requested oral argument before the Committee and again argued reinstatement. mitigating factors, the Hearing Panel recommended a two-year suspension with conditions for 8.4(c), relative to dishonesty. Based on its findings, including findings on aggravating and to tennination of representation, Rule 3.3(a)(1), relative to candor toward the tribunal, and Rule Conduct Rule 1.1, relative to competence, Rule 1.3/ relative to diligence, Rule 1.16(d), relative found, by clear and convincing evidence, that Mr. Morse had violated N.H. Rules of Professional aggravating factors. After careful consideration of the entire record before it, the Hearing Panel Counsel argued that the appropriate baseline sanction was disbarment and asserted several p. 61 Page 3 of4 4 LD 2009-0002 In the Matter of Donald L. Wyatt is currently pending before the New Hampshire Supreme Court.

Standards, including the Respondent's prior disciplinary record, the appropriate sanction was a so. The Committee determined that based on the four-part analysis recommended by the behalf from a jury's verdict of guilty on various criminal charges, despite her requests that he do In White, the Respondent violated his duty to his client by failing to file an appeal on her public confidence in the bar, and preserve the integrity of the legal profession. attention, the Committee determined that disbarment was required to protect the public, maintain and despite several court hearings in which these conflicts of interest were brought to his refusal or inability to understand the outrageous nature of his misconduct despite its obviousness interest in pursuing the course of action that brought him before the Committee, and his steadfast Respondent's misconduct, the length of time over which it took place, the Respondent's self­ charging and collecting excessive fees. In view of the flagrant and egregious nature ofthe gain greater access to the funds and assets, and the Respondent's own interests with respect to wife with whom the individual was experiencing marital difficulties and who was attempting to to govern the disposition of the individual's funds and assets, the conservator, the individual's individual laboring under severe mental and physical handicaps, the conservatorship established In Wyatt, the Respondent simultaneously represented five different"clients" --an the Committee imposed a Reprimand. conditionally stayed it for two years, and Engel, David C. advs. Barbara Hill #02-039, in which A.S. advs. Elaina Roberts #07-044, in which the Committee imposed a six-month suspension but Deborah Stacy #03-0534, in which the Committee recommended disbarment, White, Stephen considered the circumstances ofthis case as compared with those of Wyatt, Donald L., Jr. advs. expense of carefully considering the specific facts of each case. Specifically, the Committee consistency is important, but also is cautious of maintaining an appearance of consistency at the the Decision is inconsistent with the results in other cases. The Committee believes that Disciplinary Counsel cited several cases in the Motion as support for the proposition that is not intended as punishment. See e.g., Coffey's Case, 152 N.H. 503 (2005). conduct in the future. While the sanction must account for the severity of the misconduct, discipline public confidence in the bar, preserve the integrity of the legal profession, and prevent similar p. 62 Page 4 of4 File Ruth Ann Mize Lynn D. Morse, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

August t>,2009 /'

two-year suspension with conditions for reinstatement, as detailed in the Decision. his misconduct in this case. The Conunittee thus affirms its original decision to reconunend a Morse is well-respected in the conununity. Further, there was no selfish or dishonest motive in future. The record, including evidence provided by Disciplinary Counsel herself, shows that Mr. disbarred in order to maintain public confidence in the bar or to prevent similar conduct in the disbarment is necessary. The Conunittee also remains unconvinced that Mr. Morse must be that Mr. Morse poses such a threat to the public and the integrity ofthe legal profession that The Committee remains unconvinced, based on the totality of the information before it, III. Decision his complete cooperation with the disciplinary process. Respondent's daughter being diagnosed with a serious disease shortly he intended to retire, and reprimand based on the Respondent's advanced age,"the overwhelming burden imposed" by the Despite the seriousness of the viclations, the Committee exercised its discretion and imposed a disciplinary proceed for almost 10 months after discovering that he did, in fact, have the funds. the Respondent initially denied the existence of the funds and did not correct the record in the were entitled for almost 18 months after the probate court's acceptance of the final accounting; In Engel, the Respondent failed to disburse all remaining funds to which beneficiaries specific conditions. to stay imposition of the six -month suspension for two years provided the Respondent meets the Professional Conduct, as well as the Conunittee's discretion to fashion an appropriate sanction, it was consistent with the purpose of the Court's disciplinary power and the goals of the Rules of deficits in his practice under the terms of a prior disciplinary decision, the Conunittee found that suspension. However, based on the Respondent's having taken steps toward rectifYing the