Lanea A. Witkus (2009)

Avenue, P.O.Box 5,Newport, New Hampshire 03773. Ms. Witkus operatedherlaw officeas Witkus & Wilson,P.C.,34 Belknap Witkus wasadmittedtopracticein1977. At all timesmaterialtothisproceeding, Ms. Witkus is an attorney licensed to practice law in New Hampshire. Ms.

clear andconvincingevidence: Upon consideration,theCommitteevotedtoaccept(heStipulationas to the Factsby

Kissinger,Jr., Esquire, represented theRespondent.LaneaA. Witkus,Esquii McCafferty,DisciplinaryCounsel, presented for the AttorneyDisciplineOffice,John C. Martin wereabsentMargaret H.Nelson recusedherselfand left the room.Landya B. JenniferL. Parent.David N. Cole,Thomas P. Connair,GretchenRule Hamel and James R. Gray,Vice Chair, SusanR. Chollet, Alan J.Cronheim,GeraldA. Daley, Richard H. Darlingand above-captionedmatter. Members presentincluded:Benette Pizzimenti, Vice Chair, Toni M. On November 17,2009,theProfessionalConductCommitteeheard OralArgumentin the

Witkus,LaneaA. advs.Hugh M. Tamoney # 06-029

requestedthe Court to appoint anindependentexecutor. filed amotion toremove Hugh and Mark Tamoney asCo-Executorsand Orderwhich grantedthe removalofherasCo-Executor.Megan Zazzaro also On September26,2005,Megan Zazzarofiled a motion to set aside the Court

Mark Tamoney retainedDavid P. Eby, Esq. torepresentthem. Esquire.In oraboutlateNovember2005,Mr. ChandlerwithdrewandHughand Originally,Hugh andMark Tamoney wererepresentedby R. WellsChandler,

began inApril2005. ProbateActionand the Tamoney Lawsuit. Ms.Witkus'representationofthem Megan Zazzaroand MarabethHamiltonwererepresentedby Ms. Witkus in the

belonging to theTamoney Estate. improperlyremovedfundsfromtheTamoney Trustand improperlyretaineditems In the TamoneyLawsuit,Hugh andMarkTamoney allegedthat the Defendants

asdefendantsintheTamoney Lawsuit ("Tamoney Lawsuit").MichaelZazzaroand LaurenHamiltonwere also named 05-C-0056, against their sisters,MarabethHamilton and Megan Zazzaro Tamoney Estate, initiated an actionin Sullivan County SuperiorCourt,Docket # Ataround that sametime,Hugh and Mark Tamoney, asCo-Executorsofthe

Megan Zazzaro was therefore removed as Co-Executor.

This petition was grantedwithoutobjection by Order datedSeptember 22,2005. and HughTamoney filed a petition to remove MeganZazzaro asCo-Executor. Tamoney's money that Megan Zazzaro did not explain to theirsatisfaction,Mark Becauseofallegedfinancialimproprietiesin the handlingoflarge sumsofMs.

Estate"). Tamoney'sdaughters,Megan Zazzaro,asCo-Executorsofher Estate ("Tamoney appointedMs.Tamoney's sons, Hughand MarkTamoney, alongwithone ofMs. By OrderdatedJuly21,2005,theProbateCourt,by agreementoftheparties,

2005-0137 ("ProbateAction"). Ms.Tamoney'sWill wasprobatedinSullivanCountyProbateCourt,Docket#

On April2,2005,Ms. Tamoneydied.

("TamoneyTrusf *). Ms. WitkusneverrepresentedMs. Tamoney. documententitledthePatriciaM. Tamoney RevocableTrustAgreement On August13,2002,PatriciaM. Tamoneyexecutedboth herWilland a trust p. 3 Page 3of11

independentexecutorwas heldbeforetheCourt(Feeney,J.). On December 8,2005,a hearingon Ms. Witkus' motion to appointan

requests. Ms. Witkusdidnotobjectto theaforementionedNovember30,2005,discovery

Question16 ofMegan Zazzaro'sInterrogatorieswas identical.

HarryTamoney istheprincipal,from2000to thepresent. whethersignedorunsigned,inwhichPatriciaTamoney or Pleaseidentifyand produceallPower ofAttorneyforms,

Question17 ofMarabeth'sand MichaelZazzaro'sInterrogatoriesasked: Tamoney)forwardedtoMs. WitkusInterrogatoriesand documentrequests. On or aboutNovember30,2005,Mr. Eby (on behalfofHugh and Mark

hadasked hersecretarytoforwarda copyofthe POA to Mr.Chandler. withacopyofthePOA. Ms. Witkusbelievesthat,uponreceivingthePOA, she inherpossession.Ms. Witkusconcedesthatshedid not supplyMr.Chandler did not put his requestinwriting.Atthattime, Ms. Witkus did not havethe POA requestto Ms. Witkus thatshesupplyhimwitha copyofthe POA.Mr. Chandler WhilerepresentingHughand Mark Tamoney,Mr.Chandlermade anoral

thePOA in herpossessionand disclosed such to Mr. Chandler. under authorityofthe POA. Atthat time, Ms.Witkus did notyethave a copyof opposingcounsel that her client hadmadefinancialtransactionsin Connecticut Basedupon statements made to her byMarabeth,Ms. Witkus representedto

Tamoney pursuant to thePOA. Connecticut bank had honored the POA whenMarabethnegotiated checks for Ms. referred to as the"POA"). Marabeth furtherassured Ms.Witkus that a Connecticut,Ms. Tamoney had givenMarabetha PowerofAttorney(hereinafter Ms. Witkus'client,Marabeth, had assuredMs.Witkus that,whilein

impropriety against the brothers. money fromMs.Tamoney. The sistersalsoassertedallegationsoffinancial brothersallegedthatthesistershad,among otherthings,stolenlargesums of The disputebetweentheTamoney brothersand sisterswas highlycharged.The

limitedissueofappointingan independentexecutor. requestto setasideherremovalas Co-Executorand scheduledahearingonthe Inan OrderdatedSeptember29,2005,theCourtdeniedMegan Zazzaro's p. 4 Page 4of11 responsewritten by her clients to Question17,regardingthe identification and verbatim the interrogatory answers hand-writtenby Ms. Witkus'clients.The Priorto theeveningofFriday,January13,2006,Ms. Witkus'secretary typed

and cannotretrieve it to be copies (sic)untilthen...." send ituntilnextweek as Iam outoftheofficethisafternoon partofthe estatefile.Why would it be? I will not be able to "...As for thepoa,we sent a copy toAttyChandler. It is not a

In an e-mail to Mr. Eby datedJanuary6,2006,Ms. Witkus wrote:

secretaryindicatedthat she hadlookedforthe POA but could notlocateit. copyofthe POA. Ms. Witkusinquiredofhersecretaryaboutthe POA. Her Witkus a letter (via telefax) in which he againrequested that she forwardtohim a Having not received a copyofthe POA, onJanuary4,2006,Mr. Eby wrote Ms.

independentexecutor. In an Order datedDecember 15,2005,the Courtdeniedtherequesttoappointan

that neither she nor hernew secretaryforwardedthePOA to Mr. Eby at that time. new secretaryto forward the POA to Mr. Eby. Ms.Witkus concedes,however, that Ms.Witkus had repeatedlyreferenced at the hearing. Ms.Witkus asked her letter (viatelefax)inwhich he requested, among otherthings,a copy ofthe POA On December 9,2005,the day after thehearing,Mr. Eby sent Ms.Witkus a

as alleged in theTamoney Lawsuit. Courtraisedconcernsabout thepotentialcriminalliabilityofMs. Witkus'clients, determinedthat Hugh and Mark Tamoney shouldremain as Co-Executors; the thebenchto deny her requesttoappointan independentexecutor. The Court Ms. Witkus'argumentsprovedunavailing,asthe Court indicated its intentfrom

positionthat the brotherswere unqualifiedto serve as co-executors. theyhad againstMarabeth.Her conclusionwas thatsuchbiasjustifiedher to thedetrimentofMs.Tamoney was improper,and illustratedtheallegedbias argumentby theTamoney brothersthatMarabethhad absconded with such funds positionwas thatbecausethefundshadbeenrepaidbyMs. Tamoney,any aloan,whichwas subsequentlyrepaidbyMs. Tamoney. AttorneyWitkus' negotiateda$5000checkfromMark Tamoney made payabletoMs. Tamoney as occasions,relyingon itsexistencetosupportherpositionthatMarabethhad As partofher argumentto the Court,Ms. Witkus referencedthe POA on several

and,asaresult,an independentexecutorwas necessary. Hugh and Mark Tamoney,werebiasedagainstherclients,Marabethand Megan, Atthathearing,Ms. WitkusattemptedtopersuadetheCourtthatthebrothers, p. 5 Page5ofll asked Ms.Witkus tomake sure she had sent the rightdocument. Atthat time, she told her that Mr.Eby'sofficewas still questioningwhether the POA was sent, and At oraround10:45a.m. onFebruary17,2006,Ms. Witkus recallshersecretary

Eby receivedthis particular fax. POA, stating in a cover sheet that she hadpreviouslyfaxed the document. Mr. Ator about9:15a.m. onFebruary17,2006,Ms. Witkus'secretary faxed the

had yet toreceivethePOA. on February17,2006,Mr. Eby's officecontactedMs.Witkus'office, statingthey the POA. The secretaryconfirmed to Ms. Witkus that she had done so. However, receiptofa finalsettlementagreement,Ms. Witkusinstructedhersecretaryto fax In the latterpartoftheafternoonofFebruary16,2006,and priorto Ms.Witkus'

based onAttorneyWitkus'representations, that a validPOA existed. As partofthesettlementnegotiations,Hughand Mark Tamoney presumed,

February17,2006. A settlementagreementhad beensignedbyeachofMs. Witkus'clients by

negotiations to resolve theTamoney Lawsuit In or aboutmid-January2006, thepartiesbeganfocusing onsettlement

documents inwhich thePOA was placed, also were not attached. Interrogatories.Severalotherdocuments,whichwerepartofthesame pileof No power ofattorney form was attachedto Marabeth'sAnswers to the

paragraphwere notrevised. Ms. Witkus'clientsand typedbyhersecretary,asdescribedin thepreceding The InterrogatoryanswerspertainingtotheproductionofthePOA, asdraftedby Zazzaro's Answers to theInterrogatoriespropoundedon her inNovember 2005. On or about January19,2006,Ms. Witkus forwardedMarabeth'sand Michael

copiedand attachedto theinterrogatories. containingthe POA wasseparatedfromthe restofthe documents that were followingbusinessday. Sometimeaftertheweekend,thedocumentpile pilesofdocumentstobe attachedtotheinterrogatoryanswerstobe copiedthe andsignedtheinterrogatoryanswers.The POA was in oneofthreesubstantial Ms. Witkusand herclientssetasidethedocumentsinsupportoftheiranswers, accordingly,whichshefailedtodo. On theeveningofFriday,January13,2006, documents.Ms. Witkus'clientsintendedtohaveMs. Witkusrevisetheanswer Interrogatories,and tootherinterrogatoryanswersthatrequestedtheproductionof Witkus."The same answerwas providedtoQuestion16 ofMegan Zazzaro's productionofallpowerofattorneyforms,was asfollows:"Answer:LaneaA. p. 6 Page6of 11 2 The Committee notes the typographicalerrorin theHearingPanelReportofFebruary17,2008. 1The Committee notes the typographical errorin theHearingPanelReportofOctober, 2007.

See Hearing PanelReport at 4.

On February17,20062,Ms. WitkusdeterminedthatthePower ofAttorneywas invalid.

She furtheracknowledged looking at it briefly but did notcarefullyreviewit Ms. WitkusacknowledgedreceivingthePower ofAttorneysometimeinOctober,20051.

HearingPanel Report: Additional factsbelow areestablishedby clearand convincingevidence,as found by the

See Stipulationas toFacts,Rules and Sanctionfflj1-40,at 1 to 9.

tothePOA. DisciplineOffice,complaining interalia,about Ms.Witkus'conductwithrespect On or about May11,2006,Hugh Tamoney filed a grievancewiththeAttorney

signed andlegallyinvalid. Tamoney learnedthat Ms. Witkus haddisclosedthe POA, which was improperly At some point after they signed the settlement agreement, Hugh and Mark

"valid" or words to thateffectin herofferofproof to the Court. December 8,2005,hearingtranscripttoensurethat she had not used the term Priorto sending the above messagetoMr. Eby, Ms.Witkusreviewed the

"Inever saidvalid.There isa POA. FYI"

cover letter to Mr. Eby: AlongwiththeinvalidPOA, Ms. Witkusincludedthefollowingmessagein her

agreement. telefax).By thattime,Hugh and Mark Tamoney had signedthesettlement On thatsame date,Ms. WitkusforwardedacopyofthePOA toMr. Eby (via

invalid,asithad neverbeensignedbythepurportedprincipal,Ms. Tamoney. carefullyreviewedthe POA anddiscoveredthat it was clear on its face that it was p. 7 Page 7of11 offersofproofon December8,2005,thatthePower ofAttorneyexisted.Her representation Ms. Witkusrepeatedly,on five(5)separateoccasions,representedto aCourtby wayof

thatthePOA was valid. diligentinquiryasto itsvalidity.Ms. Witkusthereforedidnothaveareasonablebasistobelieve thatthePOA was valid.Further,havingfailedtoreviewthe POA, she did not make areasonably HavingfailedtoreviewthePOA, Ms. Witkuscouldnothaveknown nordidsheknow

POA wasnot valid onFebruary17,2006when she morecarefullyreviewed it. Power ofAttorneysometimeinOctober,2005.AccordingtoMs. Witkus, shedeterminedthatthe The Committeefoundby clearand convincingevidencethat Ms. Witkusreceivedthe

reasonablydiligentinquiry. thelawyerknows theassertionistrueorbelievesit to be trueon the basisofa by the lawyeror in a statementin opencourt,may properlybe made only when An assertionpurportingto be on thelawyer'sown knowledge,as in an affidavit

Representationsby aLawyer[3]statesinpertinentpart: The 2004 ABA Model Code Comment ofRule 3.3Candor Toward The Tribunal,

Misconduct. 3.3(a)(1):Candorto the Tribunal,3.4(d):Fairnessto OpposingPartyand Counsel and8.4(a): The Committee thus finds, by clear and convincing evidence, that theRespondent violated Rules The Respondentacknowledgesviolationofthe Rules, and as foundby the HearingPanel.

POA as is required for it to be valid. documentwas defective.This was easilydeterminedbecauseMs. Tamoney never signedthe Witkus statedthatonly when she reviewedthe POA onFebruary17,2006,she realizedthat the 2005,hearing,or following the numerousrequestsfromMr. Eby that it beforwardedto him. Ms. Ms. WitkusfailedtoadequatelyreviewthePower ofAttorney before the December8, p. 8 Page 8of11

Standards,theCourt has consideredthem when imposingsanctions). 149N.H. 132,139 (2003) (noting that, although the Court has never formally adopted these causedby the misconduct; and (d) aggravatingand mitigatingfactors. See,e.g., Shillen's Case, considered:(a) the dutyviolated;(b) theattorney'smentalstate; (c) the potentialoractualinjury ("Standards"), when imposinga sanctionforattorneymisconductthefollowingfactorsare Under theAmerican Bar Association's Standardsfor ImposingLawyerSanctions (1992)

"The sanctionmust take intoaccountthe severityofthemisconduct." Id. inthefuture." Kg.,Coffey'sCase, 152N.H.503,513(2005)(internalquotationmarksomitted). confidencein the bar, preserve the integrityofthe legal profession, and prevent similar conduct Thepurposeofthe Court'sdisciplinarypower"is to protect the public, maintainpublic

in. ANALYSIS

a violationofRule 8.4(a). In lightofthe above rule violations, there is necessarily clear andconvincingevidenceof

respect to a document which wasclearlyrelevant and material tothecase. onJanuary25,2006.Ms. Witkusfailedtotimelycomplywithareasonablediscoveryrequestwith Bylettersent viaU.S.mailand fax onJanuary9,2006;and(7) Bylettersent via U.S. mailandfax (4)By lettersentviaU.S.mailandfaxonJanuary4,2006;(5)ByemaildatedJanuary6,2006;(6) aftertheDecember8,2005hearing;(3)By lettersentviaU.S.mailandfaxonDecember9,2005; follows:(1)ViaInterrogatories/DocumentRequestson oraboutNovember 30,2005;(2)Orally he actuallyreceivedit.The CommitteefindsthatMr. Eby requestedthePower ofAttorneyas AttorneyEby hadrequestedacopyofthePowerofAttorneyatleastseven(7)timesbefore

Rule 3.4(d):Fairnessto Opposing Partyand Counsel

thatshehadthePOA constituteaviolationofRule3.3(a)(1). clearlyimpliedthatthePowerofAttorneywas valid.Herrepresentationsincludingherstatement p. 9 Page 9 of11

legitimatediscoveryrequest for adocument that the Respondent had in herpossession. shouldhave guided her toward being moreforthcomingwith opposing counselwithregardto a on it, priortomaking reference to it in Court.Furthermore,Respondent'syears in practice also shouldhave taken thetimeto carefully review the PowerofAttorneygivenher repeated reliance The Respondenthas been practicing foroverthirty years.The Committee found that she

counselratherthan dealwithit in aforthrightmannerand offeran explanation or an apology. determiningthat the PowerofAttorney was invalid,Ms. Witkus sent a terse fax to opposing trueremorse,despite entering into aStipulation.The Committee was troubled that upon Upon cross-examination, Ms.Witkus was reticentto admit wrongdoing and failed toshow any Ms. Witkus'defensiveand unapologetic demeanor during thetwo hearings in this matter.

adversematerialfacts) and Rule 8.4(a)(generalrule), were taken into consideration. (2)a reprimandissued December18,2007,a violationofRule 3.3(d)(failureto informtribunalof 2000,withregardto Rule1.9(dismissingthematterand findingno professionalmisconduct);and Ms. Witkus'priordisciplinaryrecord,whichincludes:(1) awarningissuedon August28,

convincingevidence by theHearingPanel: d. The Committeealsonotedthefollowingaggravatingfactors,as foundbyclearand

agreementmighthaveresultedhad theyknown thePower ofAttorneywas invalid. reachedbasedontheirbeliefthatavalidPower ofAttorneyexisted.A different c. Potentialinjurywas causedtotheTamoney brotherswhen asettlementagreementwas

ofher misconduct. b. Ms. Witkusdidnotengageinanyobviousself-dealingorintentionaldeceitinthecourse

integrityoftheadjudicativeprocess.Ms. Witkusbreachedbothoftheseduties. a. Candortoatribunaland fairnesstoan opposingpartyand counselisessentialtothe p. 10 PagelOofll this matter. Saidcostsshallbe paidin full in the first instance,orarrangementsmade for a The Respondent shall pay all costsassociatedwith the investigation and prosecutionof

suspension,with four months suspended for two yearswith conditions. 3.4(d)and 8.4(a) by clear and convincing evidence,the Committee issues a six month Based on theabove reasons,havingfound violationsofN.H. R. Prof.Conduct 3.3(a)(1);

the following reporting year. annual credits required by the NH MCLE Board, and shall not be used as carry over credits for months,with in-personattendance. Theseadditionalcreditsshall be in addition to the twelve Ms. Witkus shallattendsixhoursofCLE on officemanagement withinthenextsix

time as the grievance isresolved. unresolved during this two yearperiod,the stayofthesuspensionshall beextendeduntil such portionor allofthe 6 (six) month suspension shall be imposed.Ifa grievance is filed but remains the Rules during this time, theCommittee shall schedule a furtherhearingtodeterminewhethera shall beconditionalupon no furtherviolationsfor a periodoftwo years.IfMs. Witkus violates months suspended, to beimposed on March 1,2010.The suspendedportionofthe suspension ethicalinfractions.Accordingly, the Committeevotedto issue a six month suspension with four integrityofthe legalprofession,the gravityofthe Rules violated and theneed to deter future The Committee consideredtheabove factorsand discussedtheneed tomaintainthe

providesa needed service to her community. extensivehoursto Pro-Bono and reduced feeclients.The Committee ismindful thatMs. Witkus convincingevidenceby theHearingPanel:Ms. Witkus*credibletestimonythat she hasdevoted The Committeenoted thefollowingmitigatingfactors,also found by clear and p. 11 Page 11 of11

File JohnC.Kissinger,Jr.,Esquire LandyaB.McCafferty,DisciplinaryCounsel Distribution:

December fh, 2009

request forreinstatement. Committee-approvedpaymentplanfollowingthereviewofafinancialaffidavit,priortoany p. 12 File NH Bar Association Lanea A. Witkus, Esquire John C. KissingerJr.,Esquire Landya B. McCafferty, Esquire ProfessionalConduct Committee Distribution:

Broderick,C.J.,and Dalianis,Duggan, Hicks and Conboy, JJ.,concurred.

oflaw in New Hampshire, effectiveimmediately. reinstatementisgranted. Attorney Lanea Witkus isreinstatedto the practice accordance with the provisionsofRule 37(14)(f),Attorney Witkus* motion for orderand requestingthatshe be reinstatedto the practiceoflaw. In affidavitstatingthatshe has fullycomplied with the terms of the suspension March 1, 2010. Attorney Witkus has fileda motion forreinstatementand an Hampshire fora periodofsixmonths, with four months stayed,commencing Attorney Lanea Witkus was suspended from thepracticeoflaw inNew

Witkus,thecourton May 13, 2010, issuedthe followingorder: In Case No. LD-2010-0006, Tn the Matter nfLattea A.