Janina Stodolski (2009)

action filed by MartheVandegriftin Hillsborough County Superior Court Ms. Stodolski wasretainedby Martin Vandegrift inconnectionwith a divorce

practitionerwith an office located inManchester,New Hampshire. At all times material to this proceeding, Ms. Stodolski hasoperatedas a solo

1975. Ms. Stodolski is an attorney who was admittedto the New Hampshire Bar in

as set forth in the Stipulation are established by clear and convincing evidence: Stipulation,("Stipulation") as to the facts of thismatter.Accordingly, the facts described below The Respondentand the ADOhavestipulated,and the Committeeacceptsthe

Formal Proceedings. Upon consideration, the Committee voted to accept the Joint Motion to Permit Waiverof

Hamel and James R. Martin were absent. Richard H. Darling, andJenniferL. Parent. David N. Cole,Thomas P. Connair,GretchenRule Vice Chair,Toni Gray, Vice Chair, Susan R. Chollet, Alan J. Cronheim, Gerald A.Daley, captionedmatter. Members present included: Margaret H. Nelson, Chair, Benette Pizzimenti, On November 17, 2009, the ProfessionalConduct Committee deliberatedtheabove

Stodolski,Janinaadvs.AttorneyDisciplineOffice # 08-051

Alan J.Cronheim Holly B. Fazzino,Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole JenniferL. Parent Susan R. Chollet* James R. Martin Toni M. Gray,* ViceChair 603-224-5828 ♦ Fax 228-9511 Gretchen Rule Hamel Benette Pizzimenti,Vice Chair Concord, New Hampshire03301 Richard H. Darling* Margaret H. Nelson,Chair 4 Chenell Drive,Suite102 Gerald A. Daley*

incorporatedlanguageoftheCourt'saforementionedTemporary Restraining included aprovisionentitled,"RestraintsAgainstProperty."The provision 2005, theVandegriftsexecuteda Proposed PartialTemporary Decree,which Inanticipationofa hearingon temporaryordersscheduledforNovember 28,

New Hampshire divorceaction. Paragraph 24 posed thefollowingquestion: requestsforproductionto beanswered by Mr.Vandegriftinconnectionwith the On October26,2005, Ms. Vandegriftpropounded a setofinterrogatoriesand

againstWieland. Ms. Vandegriftwas aware ofthe fact that Mr.Vandegriftwas pursuinga claim

claimagainstWieland. representedby Connecticutcounsel, on an hourly fee basis, inconnectionwith the inconnectionwith histerminationby Wieland in 2004. Mr.Vandegriftwas Wieland DentalSystems,Inc.("Wieland")Mr. Vandegriftsoughtmoney damages Vandegrifthad alawsuitpendinginConnecticutagainst his formeremployer, At the timeofthecommencement ofthe New Hampshire divorceaction,Mr.

or byorderofthe Court. ofliving;in theordinaryand usual courseofbusinessor investing; agreement ofboth parties;forreasonableand necessaryexpenses personal, belonging to either or bothofthem except by written any othermanner whatsoeverdisposingofany property,real or selling,transferring,encumbering,hypothecating,concealingor in Marthe A. Vandegriftand MartinL. Vandegriftarerestrainedfrom follows:

26,2005. The Order includeda Temporary RestrainingOrder,providingas Hillsborough CountySuperiorCourt issued an OrderofNotice datedSeptember Upon filing the initial petition for divorce and request for temporary orders, the

Marthe Vandegriftin the proceeding. and Martin L. Vandegrift,No. 05-M-1326.) Edrea M.Grabler,Esq.,represented (NorthernDistrict) in September 2005. (In the MatterofMarthe A. Vandegrift p. 3 Page 3 of8

payees and amounts disbursed. Ms. Stodolski'sletterto Ms. GrablerofOctober 23,2006, accuratelylistedthe Connecticutclaim or ofthe aforementioned disbursements untilOctober 2006. Ms. Stodolskidid notinform Ms. GrablerofthesettlementofMr. Vandegrift's

Ms. Vandegrift'sconsentor leaveofthe Court. divorceaction was still pending. Thedisbursementswere made without obtaimng Alloftheaforementioneddisbursementswere made by Ms.Stodolskiwhile the

maintainedfor Mr.Vandegrift. disbursements,approximately$41,500remained in the clienttrustaccount certainpersonal expenses incurredby Mr.Vandegrift,totaling $8000. After the $6000paid to Ms. Stodolski for herfees.Disbursementswere also made for 2006. Thesedisbursementsfrom Mr.Vandegrift'ssettlementfundsincluded approximately$41,500 on June9,2006,and anadditional$2000 on August 31, Pursuant to Mr.Vandegrift'sinstructions, Ms.Stodolskidisbursed

settlementfunds. need to provide the Court in the divorce action with a full accountingofthe and made thedisbursements.Mr. Vandegrift and Ms.Stodolskianticipatedthe Hampshiredivorce action, but she compliedwith Mr. Vandegrift's instructions about the non-hypothecationprovision of thetemporarydecree issued in the New litigation,and to pay certain other bills. Ms. Stodolskireminded Mr. Vandegrift by his Connecticut counsel, to pay back loans used to fund the Connecticut make certaindisbursementsfrom thesettlementfunds tocover legalfeescharged funds in herclienttrustaccount. Mr. VandegriftinstructedMs. Stodolskito Mr. Vandegrift gave Ms. Stodolski the settlement check and she deposited the

Vandegriftdated May 22, 2006, in the amountof$85,000. was settled. Pursuant to a settlement agreement, Weiland issued a check to Mr. anticipatedcosts associated withresolvingtheclaim.Shortlythereafter, the case Mr. Vandegrift and Ms. Stodolski of the statusofthe case against Weiland and the By letter dated April 24, 2006, Mr. Vandegrift's Connecticut counsel notified

b. None." questionatparagraph24, Mr.Vandegriftrepresentedasfollows:"a. NoAction; responsestoMs. Vandegrift'scounselwithoutcarefulreview.Withrespectto the interrogatoriesand gave them to Ms.Stodolski.Ms. Stodolskisupplied the On January 6, 2006, Mr. Vandegrift prepared responses to the aforementioned

included theparties'Proposed Partial Temporary Decree. Order. OnNovember 29, 2005, the Court issuedTemporary Orderswhich p. 4 Page 4 of8

Ms. Stodolskibreachedsaidduty as follows:

applicablelaw. issues inconnectionwithdomesticrelationslitigation and toperform in amanner consistentwith Ms. Stodolski was bound to have specific knowledge about material substantive and procedural Ms. Stodolski owed Mr. Vandegrift a duty to provide competent representation. In this regard,

There is clear and convincing evidence that Ms. Stodolski breached said duty, asfollows:

violationsby clearand convincingevidence: as to the RulesofProfessionalConduct that were violated. TheStipulationestablishes these The Respondent and the ADO have stipulated, and the Committee accepts the Stipulation

Stipulationfl1-16,at 1 to 5.

2005." clear violationofthe restraining order that has been in effect since September disbursalofsaid fundswithoutagreementofthe parties ororderoftheCourtis a is a clearviolationofcounsel'sobligation under Shafmaster. Mr.Vandegrift's not inform opposing counselofthesettlementand thedisbursalofthefunds. That counsel." The Court found thatthe Connecticutcase was settledand "counseldid the Court "was greatlydisturbedby the actionsofMr. Vandegriftand his Vandegriftreceived after giving him a creditofpaying for legal fees." However, settlement."The Court found that figure "to be a fairreflectionofthe net Mr. following:"$41,957ofthe netofMr. Vandegrift's[Connecticut] court assets, the Courtincludedin the marital estate to bedividedby theparties,the A finalDecree ofDivorcewas issued onDecember 28, 2006.Among other

money obtainedfrom thesettlement. settledtheConnecticutclaimand hisobligationtorefrainfrom disposingofthe confirmedMr. Vandegrift'sobligationto notify theopposingpartywhen he Court'sdecisioninShafmasterv.Shafmaster.138 N.H. 460(1994),theCourt settlementmoney at the timeofsuch order. Citing theNew Hampshire Supreme The Court rejectedMs. Stodolski'sargument that Mr.Vandegriftdid not have the Court'sinitialrestrainingorderprecludingthehypothecationofa party'sassets. 13,2006, theCourt addressedthe issuewhetherMr. Vandegrifthad violatedthe At ahearingon themeritsofthe divorceactionconvened on December 12 and p. 5 Page 5of8 The Committee agreed,consistentwith thestipulatedrecommendation,that the

Stipulationffi[27, at 8.

found the foregoing violations. There isclearand convincingevidence that Ms.Stodolskibreachedsaid duty, having

StipulationKf 22-26,at 7.

timely informationrelative to the status and settlementof the Connecticut proceeding. Ms. Stodolski alsobreachedher duty by failing to provide heropponent with accurateand

requisite authority. settlement proceeds obtained by Mr. Vandegrift in the Connecticut proceeding without the parties'stipulatedtemporarydecreerelativetohypothecationofher client's assets bydisbursing Ms. Stodolski breached her duty by knowingly disobeying theCourt'sstanding order and the

informationrelatingto Mr.Vandegrift'sassets. divorce action. She also owed a duty to her opponent to provide timely and accurate discovery the Court relating to the hypothecationofher client's assets pending dispositionoftheunderlying Ms. Stodolski owed a duty to her opponent and to the Court to comply with the law and rulesof

There is clear and convincing evidence that Ms. Stodolski breached said duty as follows:

Rule 3.4: Fairness to Opposing Party and Counsel

StipulationIffl18-21,at 6-7.

necessaryauthority. counselofthe Connecticut settlement and by disbursingsettlementfunds without the manner consistent withapplicablelaw by failing to provide timely notice to opposing c) Ms. Stodolskifailedto act or torefrainfrom acting on behalf of Mr.Vandegriftin a and proceedingwhile the subjectNewHampshiredivorce proceedingwas stillpending; settlementfunds received by Mr. Vandegrift inconnectionwith a Connecticut b) Ms. Stodolskifailed toproperlyadviseMr.Vandegriftas to the handlingof resolutionofan underlyingdivorceaction. standingcourt ordersrestrainingthehypothecationof a client's assets pending a) Ms. Stodolskilackedspecificknowledgeorunderstandingofthe law as itrelatesto p. 6 Page 6 of8

assertion that Ms.Stodolski'sfailures, for the most part, were merely theproductofnegligence. standing order. It is worth noting that the Committee gave less weight than the parties to the knowing misconductinconnectionwith Ms. Stodolski'sdisregardoftheCourt'saforesaid With respectto thesecond and thirdprongs oftheanalysis,thereissome element of and relative todiscovery. Court by failing to comply with rulesofthe Court relative tonon-hypothecationofclient assets the Connecticut proceeding. Ms. Stodolski breached duties owed to her opponent and to the provide competentrepresentationrelative to the handlingofthesettlementproceedsobtained in her opponent, and to the Court. Ms. Stodolski breached duties owed to her client by failing to Under the firstprong ofthe analysis, Ms.Stodolskiviolateddutiesowed toherclient, to whethertheyaffectthebaselinesanction. See id. fourth and final partofthe analysis: the existenceofany aggravating or mitigating factors and appropriatesanction.")Once thebaselinesanction isdetermined,theCourt thenlooks to the applyingthese factors, the first step is tocategorizethe respondent's misconduct and identifythe misconduct and determining a baseline sanction. See Conner'sCase, 158 N.H. at 303. ("In The first three partsofthe analysis create the framework forcharacterizingthe or mitigatingfactors." Id. (quoting Douglas' Case, 155 N.H. 613, 621 (2007)); Standards § 3.0. potential or actual injury caused by the lawyer's misconduct; and (d) the existenceofaggravating consider inimposingsanctions:"(a) the duty violated; (b) thelawyer'smentalstate; (c) the Conner's Case, 158 N.H. at303. The Standards set forth afourpartanalysisforcourtsto Although theCourt has notadoptedthe Standards, itlookstothem forguidance. account theseverityofthemisconduct." Coffey'sCase, 152 N.H. 503, 513 (2005). in the future." E.g.,Conner's Case, 158 N.H. 299, 303 (2009)."The sanctionmust take into confidence in the bar,preservethe integrityofthe legalprofession,and preventsimilarconduct The purposeoftheCourt'sdisciplinarypower "is toprotectthepublic,maintainpublic Stodolskishould receivea publiccensure. Imposing LawyerSanctions (2005) ^Standards") supporttheCommittee's conclusionthatMs. Both case law inNew Hampshire and the American BarAssociation's Standardsfor ofattorneydiscipline. appropriatesanctionin thismatteris a public censure and that thissanctionserves thepurposes p. 7 Page 7 of8

appropriatelysetat apubliccensure. The Committee agreed under thecircumstances,thatthebaselinesanctionin this case is

no actual or potentialinterferencewith a legal proceeding. and causes little or no actual or potential injury to a party, or causes little or an isolated instanceofnegligence in complying with a court order or rule, 6.24 Admonition[Reprimand]isgenerallyappropriatewhen alawyerengagesin

interference with a legalproceeding. potential injuryto a clientor otherparty,or causesinterferenceorpotential negligently fails tocomplywith a courtorder or rule, and causes injuryor 6.23 Reprimand [PublicCensure]isgenerallyappropriate when a lawyer

proceeding. client or a party, or causesinterferenceor potential interference with a legal violating a court order or rule, and causes injury or potential injury to a 6.22 Suspensionis generally appropriate when a lawyer knows that he or she is

Section 6.2 of the Standards (Abuseofthe Legal Process)provides, in pertinent part, asfollows:

injuryto aclient. competentto handle a legal matter, and causes little or no actual or potential an isolatedinstanceofnegligence indeterminingwhether he or she is 4.54 Admonition [Reprimand] is generallyappropriate when a lawyer engages in

matterand causesinjury or potential injury to aclient. (b) isnegligentin determining whether he or she is competent to handle a legal

causesinjuryor potentialinjury to aclient;or (a)demonstratesfailure to understand relevant legaldoctrinesorproceduresand

4.53 Reprimand [Public Censure] is generallyappropriatewhen a lawyer:

injuryor potentialinjury to a client. practiceinwhich the lawyer knows he or she is notcompetent,and causes 4.52 Suspension isgenerallyappropriate when alawyerengages in an areaof

Section 4.5ofthe Standards (Lack ofCompetence) provides, inpertinentpart, as follows: For adeterminationofa baseline sanction, the Standards offerappropriateguidance. marital asset to thedetrimentofboth partiesto the divorceproceeding. There was alsopotentialharm caused by Ms. Stodolski'sconduct: thedissipationofa significant p. 8 Page 8 of8

File JaninaStodolski,Esquire James L. Kruse, Assistant Disciplinary Counsel Distribution:

investigation and prosecutionofthis matter, as stipulated. Stodolskibe assessedthe expensesincurredby theProfessionalConduct Committee in the to thesanction,and herebyissues a PublicCensure.Finally,the Committee voted that Ms. Upon considerationof theabovefactors,theCommitteevotedtoaccepttheStipulationas IV. CONCLUSION

willingnesstoacknowledgeand acceptresponsibilityfor hermisconduct. was Ms. Stodolski's genuine remorse, combinedwith her fully cooperative attitude and from a litigationopponent.The Committeerecognizedthat asignificantmitigatorin this case care in her accounting and in her representations to the court and partiesregardinglegal fees due in October 2005, a complaint against Ms. Stodolski was dismissed with awarning to use more impropernotarizationof a client'ssignature)weretooremoteto beconsidered.More recently, cases of misconduct (1989: failure to keep her client informed and lackofdiligence; 1983: litigation.Ms. Stodolskihas a priordisciplinaryrecord,but theCommitteeagreedthat thetwo extensiveexperience in the practice of law, with particular focus in the areaofdomestic relations anyaggravatingand mitigatingfactors.In this case, anaggravatingfactor was Ms. Stodolski's Under the fourth prongofthe analysis, this baseline sanction must be viewed in lightof