Donald L. Wyatt Jr. (2009)

On February 10, 2009, the Supreme Court Professional

Donald L. Wyatt, Jr., on the brief and orally, pro se. to press. Errors may be reported by E-mail at the following address: and orally, for the professional conduct committee. James L. Kruse, assistant disciplinary counsel, of Concord, on the brief

page is: http://www.courts.state.nh.us/supreme. WYATT'S CASE

No. LD-2009-002 editorial errors in order that corrections may be made before the opinion goes Original Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as would have the last word.” p. 2 affairs and that in the event of disagreement between the two, Mr. Brault . . . confident that David “understood that Mr. Brault would be managing his

personal choices for David, but must choose “what to contract . . . and . . . pay petition for conservator. David. The respondent consistently advised Brault that he could not make

disagreements and discord between [David and Brault].” The respondent was

decided to sign the contract and execute related documents, including the certain expenses, and whether Brault could buy a new or second home for discharge his mother’s contractual obligations to him. David ultimately respondent cautioned David that taking back control, however, could effectively respondent had “[a] lengthy discussion . . . about the potential for

conservatorship or removed the conservator without cause. conservatorship, including whether Brault should or could expend funds for his estate, rights.” The respondent advised Brault on the operation of the he had capacity and that he wanted to take back control of his affairs.” The respondent did not, at this point, discuss conflicts of interest. At one point, the “interact directly with [David] on matters involving his personal, as opposed to would “determine if and when [the respondent] would serve as counsel.” The conservatorship estate. The respondent advised David that the conservator

terms, terminated if, among other things, David terminated the

and a personal portion, and how he could end that separation by asserting that Stacy.” To the extent authorized by Brault, the respondent continued to

informed Brault that he also wanted the respondent to serve as counsel for the

Hampshire requesting that Brault act as his conservator. The contract, by its contract required that David file a petition for voluntary conservatorship in New David’s home, and the creation and eventual funding of various trusts. The and “how it separated [David’s] affairs into two distinct parts, an estate portion Brault then retained the respondent to represent the “Estate of David E. support. The respondent also explained conservatorship, its voluntary nature, conservator in June 2001, and, as requested, appointed Brault as conservator. litigation options against his mother and his option to forego his mother’s desire that the respondent continue to serve as his personal attorney. David The Carroll County Probate Court granted David’s petition for

agreement for management of David’s healthcare, a sale and lease back of

documents at a meeting in Paris, France. The respondent discussed David’s During and shortly after their Paris discussion, David expressed his

and exchange mutual general releases. Other contract provisions included an between David and his mother in May 2001, in which they agreed to execute an effort to secure financial support. The negotiations culminated in a contract The respondent, Brault and David reviewed the contract and related

support. The respondent represented David in negotiations with his mother in In January 2001, David’s mother “dismissed” him and cut off his observed him opening two surgical wounds. p. 3 including an incident where the respondent came to David’s house and

concerned about David’s mental health in view of these and other observations,

The court granted the motion in February 2002. approval to set up a debit card account for certain miscellaneous expenses. issues. He filed a motion for instructions with the probate court seeking court violence issues and referred her to another attorney. However, he remained made clear to Svetlana that he would not represent her regarding the domestic threats of suicide, and abuse of both her and her daughter. The respondent

intermediary because the issue involved both personal rights and financial 3 behaviors, demands for unwarranted treatment, abuse of drugs and alcohol, provide administrative support at a fixed rate. respondent recommended an accounting firm and offered his paralegal to advised him that he had authority to engage such professionals. The

debtor/creditor claims against David.

and stay in Texas for an extended period of time. The respondent acted as an pain. He wanted the conservatorship to pay for his wife and daughter to travel expenses. David had been referred to a doctor in Texas for severe abdominal Brault and the respondent that David had a history of self-destructive Brault and Svetlana to consider obtaining a limited guardianship for medical doctors and threatened to check himself out of the hospital. Svetlana informed peers, and had a law clerk prepare a memorandum. He ultimately advised expressed to the respondent his dissatisfaction with the medical staff and The respondent researched ethical and guardianship issues, contacted respondent suggested that Brault get assistance with administrative tasks and

child support for a matter predating the conservatorship, and other

concerning whether to fund what he considered questionable medical

David underwent abdominal surgery on March 1. At some point, he in an apparent attempt to avoid the limitations of the Conservatorship.” The and accounts, contacting insurance agents, realtors, and various other vendors his wife Svetlana’s help, “was contacting creditors, opening new credit cards personal matters, such as preparing a will, a health care power of attorney,

During the winter of 2001, Brault sought the respondent’s advice

to some details of his duties as conservator. He also learned that David, with creditors and third parties.” He also represented David with respect to certain perfecting [David’s] rights under the contracts with [his mother] and with other The respondent continued representing the estate in “performing and respondent about any new legal matters.

The respondent learned in the fall of 2001 that Brault was not attending

fall of 2001 that he must thereafter seek permission before consulting with the for.” In an attempt to minimize David’s legal fees, Brault informed David in the effect service upon David and confer with him.

p. 4 temporary co-guardians over David’s person, and authorized the respondent to

condition. guardianship proceedings. The court then appointed Brault and Svetlana diagnosis. The respondent was prohibited from speaking with David due to his the register as soon as he obtained David’s instructions regarding the relationship with the conservatorship estate.” The respondent agreed to call

leaving him in grave condition, and that they were obtaining a psychiatric

for him to at least advise David of the proceedings given his “ongoing

reports of pain, that David had intentionally harmed himself the night before served when medically possible. them that surgery had not revealed any condition that would explain David’s domestication of the order was unnecessary and it was decided to have David offered to appoint other counsel for David, but the respondent thought it best workers and administrators the next day. Dr. Charles Brunicardi informed any orders, to advise him, and then allow him to give instructions. The court such objection would conflict him out of the case. He agreed to notify David of

the conservatorship for these legal services.

Svetlana and Brault. Attorney Gardner ultimately concluded that traveled to Texas with Brault and Svetlana. They met with doctors, social

with David, that he presumed David would object to the proceeding, and that

Brault and Svetlana in the pursuit of a guardianship. The respondent billed engaged separate counsel, the respondent continued to provide legal services to respondent and signed by Svetlana and Brault. Even after Brault and Svetlana Sharon Gardner, a local attorney in Texas, to make service and to advise Hampshire order and representation of an impaired client, the respondent the temporary guardianship order. He then met with, and Brault engaged, was denied access to David for medical reasons and could not effect service of represented David, the respondent informed the court that he had yet to speak The respondent called the register of probate and informed her that he

Walker attached to the petition supporting affidavits prepared by the

After researching Texas law regarding domestication of the New

never discussed the guardianship with David. petition on March 26, 2002. When asked by the probate court if he

guardianship proceedings in the Carroll County Probate Court. Attorney

informed David that he was recommending an attorney for Svetlana. He also The Carroll County Probate Court held a hearing on the guardianship guardianship were narrow, he would support the action. The respondent never appear at the guardianship proceeding, would object for the record, but if the

Brault and Svetlana hired Attorney Thomas Walker to initiate

respondent advised them that, as David’s counsel, he would be required to purposes only. The respondent advised them to hire their own counsel. The there is no official record of this conference. the court because of procedural defects. p. 5 County Probate Court, however, rejected the petition without presenting it to

court of David’s opposition to the guardianship and his need for counsel, but temporary guardianship order domesticated. The clerk of court for the Harris

further recalls a chambers conference in May 2002 at which he apprised the respondent then undertook with Attorney Johnson to have the New Hampshire counsel to represent them in connection with the guardianship matter. The Rodman Johnson. Svetlana and Brault retained Attorney Johnson as local

there is no written documentation of this communication. The respondent April 9 to confirm David’s need for independent New Hampshire counsel, but 5 guardianship. The respondent claims to have written the probate court on Hampshire order. In mid-April 2002, the respondent contacted Attorney A.

represented by independent counsel.

court order. letter his status as David’s personal counsel or whether David opposed the unwilling to communicate further with them unless they obtained a Texas hospital counsel informed the respondent and Svetlana that the hospital was discussed with Brault and Svetlana the need to domesticate the New guardianship over David’s person and to bill the conservatorship. The continued to provide legal services to Svetlana and Brault in pursuit of the After Svetlana and Brault retained Attorney Johnson, the respondent

respondent did not notify David of these meetings and David was not

representing them.”

probate court on April 10. The respondent did not clarify in the accompanying retain new counsel. The respondent forwarded the return of service to the meeting with him, Svetlana and the respondent. Upon their arrival, the The respondent then became convinced that David was disabled. He represent David in the New Hampshire guardianship case and that he should

evaluated David and confirmed the suspicion of a psychiatric disorder. The respondent, that David remained in serious condition and that a psychiatrist respondent replied: “no, of course not, that [a separate Texas attorney] was Dr. Fisher met with Brault. He informed Brault, who later informed the

Subsequently, Brault contacted Dr. Robert Fisher in Texas to arrange a recalls advising David at or shortly after service that he would not be able to

David that the respondent had traveled to Texas with Brault and Svetlana. The Svetlana and Brault against him. The record suggests that a doctor informed respondent why the three had been to Texas and whether he was representing

Attorney Gardner effected service upon David on April 3. The respondent

David repeatedly contacted them from Texas. On April 2, David asked the After Brault, Svetlana and the respondent returned to New Hampshire, respondent to represent him.

p. 6 proceeding. associated with representing Brault in the New Hampshire guardianship Attorney MacIntyre that he was unhappy with and no longer wanted the MacIntyre, David’s Texas counsel, whether there could be a conflict of interest guardianship by attorneys other than the respondent; in fact, David informed appeared on David’s behalf along with Attorney Hutchison, David’s guardian April 24. From this point, David was represented in connection with the the June 12 hearing with her attorney, James Wyckoff. Attorney MacIntyre

response to an ethical duty to protect David. The respondent argued that in that other counsel knew he was lead counsel, and that he was acting in

objection thereto. The respondent never discussed with David or Attorney 6 trustees in order to secure funding. Attorney MacIntyre met with David on and David previously told him that she was estranged. Deborah appeared at

respondent, argued that the respondent had appeared on previous pleadings,

There was no reference to the guardianship proceeding in Texas or David’s unsuccessful effort to domesticate the New Hampshire guardianship order. indicated that Brault would seek assistance from David’s mother and other respondent apprised the court of David’s medical problems in Texas and the David’s person. The respondent had never before heard from or met Deborah, discussed the conservatorship and his compensation. The respondent David’s biological sister, filed an application to be appointed guardian over MacIntyre met with the respondent and Brault, obtained records, and consider the temporary and permanent guardianship issues. Deborah Stacy, Brault, citing a conflict of interest. Attorney Johnson, on behalf of the Attorney MacIntyre moved to disqualify the respondent as counsel for

respondent. litem. Brault attended and was represented by Attorney Johnson and the

appointed counsel. In a verified motion to extend the temporary orders, the

The court also appointed Robert MacIntyre as David’s attorney. Attorney The Harris County Probate Court conducted a hearing on June 12 to

respondent,

appointed guardian. The respondent indicated that David would need an incapacitated person in New Hampshire and requested that Brault be April 23 appointing Brault temporary guardian over the person until June 21. On May 24, the respondent prepared and filed a petition for guardian of

medical care. Attorney Johnson signed the application along with the temporary guardian over the person seeking a limited guardianship for David’s jointly prepared and filed on April 22 an application for appointment of

The Harris County Probate Court issued an initial emergency order on

pro hac vice, on behalf of Brault as conservator and co-guardian.

pleadings to file in the Harris County Probate Court on behalf of Brault. They respondent met with Attorney Johnson on April 21 and drafted documents and hearing for July 10.

p. 7 respondent participated in drafting this pleading. The court scheduled a

on June 13 to reconsider the decision appointing Deborah as guardian. The witnesses, and the preparation of legal documents. Attorney Johnson moved certain “‘legal assistant’” services such as legal research, preparation of have David move to Massachusetts to live with Deborah. a further meeting could be held with Brault and Deborah regarding a plan to Hutchison all attended the meeting. They agreed to continue the hearing until

that she would attend to David’s needs in Massachusetts and pursue motion to reconsider in abeyance, in consideration of Deborah’s assurances

sibling and until the anticipated final hearing.

to the respondent on June 12 expressing an interest in retaining him to provide 7 The respondent, Brault, and Attorneys Johnson, MacIntyre, Wyckoff and

expenses would be covered by the conservatorship. Brault agreed to hold the

preference under Texas law, subject to confirmation of her legal status as a court thereafter appointed Deborah as temporary guardian, in accordance with that Deborah be his guardian if such an appointment was necessary. The have the respondent’s continued counsel in the case. Attorney Johnson wrote Deborah as temporary guardian. Brault and Svetlana expressed their desire to Brault thereafter authorized Attorney Johnson to file a motion to remove hearing, to attempt to resolve the dispute over the proper temporary guardian.

guardianship proceeding would be required in Massachusetts and what Wyckoff and Hutchison met. The respondent addressed whether a new to appear Subsequently, Deborah, Brault, the respondent and Attorneys MacIntyre, a proposed order was presented, but denied the motion to allow the respondent

testified to establish her biological relationship. David expressed his preference

current position favoring his sister as guardian was the product of his illness.” Attorney MacIntyre organized a meeting on July 10, the day of the

his medical care.” The court declined to sign an order of disqualification until

of a temporary guardian to make David’s health care decisions. Deborah

conspired to steal from him. Brault further expressed “concern that [David’s] Johnson, Brault indicated that David alleged in the past that Deborah At a later meeting between the respondent, Brault, Svetlana and Attorney

represented David with respect to “any matter involving his personal liberty or confidential information, but assured the court he had not previously acknowledged that he had access to a large amount of privileged and

Dr. Scarano testified at the June 12 hearing, recommending appointment

continued to serve as counsel to Brault and the conservatorship. request to permit the respondent to remain at counsel table. The respondent

pro hac vice in the case. The court granted Attorney Johnson’s

only by the conservator to represent the conservatorship estate. He May 2001 he discontinued representing David personally and was now engaged amended the notice in November 2007, alleging a violation of Conduct Rule 1.5 p. 8 1.9 (amended 2007) and 8.4(a) based upon the stipulated facts. The ADO

Hampshire Rules of Professional Conduct (Conduct Rules) 1.7 (amended 2007),

issued a notice of charges in October 2007 alleging violations of New office (ADO) in developing a stipulated set of facts and exhibits. The ADO complaint. Thereafter, the respondent cooperated with the attorney discipline

misconduct. David subsequently adopted the accusations as his own

a sworn complaint in May 2003 against the respondent alleging professional Deborah, who was now the court-appointed conservator of David’s estate, filed appointment of Deborah as the new conservator, and interim financial issues.

regarding Brault’s resignation, a transition period to a new conservator, the

scheduled a hearing on the matter for January 2003.

withdraw as counsel for the estate. The court ultimately approved a stipulation Brault had tendered his resignation and had authorized the respondent to conservator. The respondent informed the court at the March 18 hearing that

annual accountings and to provide representation in his divorce. The court

respondent’s office and informed him that Brault had decided to resign as

and asserting that David had no need for independent counsel except to review

respondent from representing the conservatorship estate, among other issues. scheduling order directing the parties to address the disqualification of the agreed. On January 28, the Carroll County Probate Court issued a

probate court, Brault and his attorney, David Azarian, appeared at the

noting that the New Hampshire guardianship proceeding had been withdrawn instruction, filed an objection on behalf of Brault and the conservatorship, the guardianship matter, and his marital case. The respondent, at Brault’s

pursuant to motions filed by Attorneys Wyckoff and Hutchison, to which Brault

notice of withdrawal. Attorney McCandless assented to and the court approved the respondent’s propriety of his fees. On March 18, just prior to a scheduled hearing in the Hampshire guardianship was no longer necessary and should be withdrawn. pleadings filed with the probate court, the conflict of interest issue and the The respondent and Attorney McCandless continued to dispute, through

entitled to independent counsel in regard to any aspect of the conservatorship,

The Texas guardianship proceedings were dismissed January 21

moved to Massachusetts and Deborah intended that he remain there, the New

July 11 on behalf of David in the Carroll County Probate Court matters. as counsel for Brault due to a conflict of interest and arguing that David was Probate Court confirming that David objected to the respondent’s involvement Attorney McCandless filed a motion for instructions in the Carroll County

In August 2002, the respondent advised Brault that because David

Attorney Roy McCandless of Concord, New Hampshire, entered an appearance domestication of the Texas order on temporary guardianship in Massachusetts. p. 9 9

interests, unless: to another client or to a third person, or by the lawyer’s own

appropriate sanction.

knowledge of the consequences. When representation of multiple (2) the client consents after consultation and with not be adversely affected; and (1) the lawyer reasonably believes the representation will all times relevant to this proceeding, Conduct Rule 1.7 provided: disability may voluntarily apply for the appointment of a conservator. 8.4(a). The respondent disputes each asserted violation. that client may be materially limited by the lawyer’s responsibilities (b) A lawyer shall not represent a client if the representation of knowledge of the consequences. (2) each client consents after consultation and with a violation of the rules governing attorney conduct has occurred and, if so, the not adversely affect the relationship with the other client; and (1) the lawyer reasonably believes the representation will that client will be directly adverse to another client, unless: clear and convincing evidence. (a) A lawyer shall not represent a client if the representation of

The PCC alleges the respondent violated Conduct Rule 1.7(a) and (b). At himself unfit to prudently manage his affairs because of mental or physical disbarment, the PCC asserts violations of Conduct Rules 1.7, 1. p. 9 9, 1.5 and I. Concurrent Conflicts of Interest

mentally incompetent . . . .” Filip v. Gagne, 104 N.H. 14, 16 (1 p. 9 962). limited to the estate of the ward, and it is not necessary that the ward be record, but retain ultimate authority to determine whether, on the facts found, differs from a guardianship in that it is voluntary rather than involuntary, is (1961) (quotation omitted); see RSA 464-A:15 (2004). “A conservatorship they relate to the property of the ward.” Yeaton v. Skillings, 103 N.H. 352, 354 conservator has the same powers and obligations as a guardian in so far as The PCC’s findings of violations of the Conduct Rules must be supported by 464-A:13 (2004). “Conservators were originally called guardians and . . . a

We begin with a brief review of conservatorships. A person who deems directed disciplinary counsel to petition for disbarment. In its petition for 200 p. 9 9, accepted the stipulated facts, adopted the hearing panel’s rulings, but Young’s Case, 154 N.H. 359, 366 (2006). sanction. The PCC heard oral argument in December 2008 and, in January

discipline matters, we defer to the PCC’s factual findings if supported by the

We first consider whether the respondent violated the Conduct Rules.

Conduct Rule charged and recommended public censure as the appropriate (amended 2007). A hearing panel found that the respondent violated each challenge the reasonableness of Brault’s discretionary decisions,

p. 10 before agreeing to represent Brault, should have foreseen that David might

as a condition of future support from his mother. Therefore, the respondent, Furthermore, David was contractually compelled to enter the conservatorship respondent assisted David in the past with his “relations with trustees.”

ability to “deal with the complexities of managing [David’s] affairs.” The

David and Brault significant. The respondent had recently doubted Brault’s Certain facts known to the respondent made the risk of adversity between particularly when non-family members are appointed as . . . conservators.”).

represented David and Brault. We agree. of the conservatorship. The PCC contends that the respondent impermissibly the client. The respondent thereafter advised Brault concerning the operation

of primary and derivative clients. See G. Hazard, Jr. & W. Hodes, supra § 2.7, The respondent argues that no conflict could exist in view of the doctrine

and can jeopardize the health and safety of the ward or conservatee,:39, III (2004), or assert violations of Brault’s fiduciary duties. Trentini, 100 N.H. 153, 156 (1956), seek a new conservator, see RSA 464-A:15,

respondent’s services and signed his name, as conservator, on the contract as

broad, “may be materially limited” by duties owed to another client. This language is improperly conducted . . . conservatorship can result in fraud and thievery, M. Jasper, Guardianship, Conservatorship and the Law 1 (2008) (“An existed at least some risk of adversity developing between him and David. See Atlantic Restaurant Mgt. Corp. v. Munro, 130 N.H. 460, 464 (1988), there While Brault was charged with making certain decisions for the ward, see

Lawyering § 10.4, at 10-12 (3d ed. 2007). trust represents the executors or trustees . . . .”). Brault contracted for the ABA Model Code Comments; 1 G. Hazard, Jr. & W. Hodes, The Law of arise in the course of the dual representation. See N.H. R. Prof. Conduct 1.7 adversity at the outset, but the risk that it or other material limitations may respondent concurrently represented Brault as conservator. Boyle’s Case, 136 N.H. 21, 23 (1992), and focuses not upon direct

A conflict exists under Conduct Rule 1.7(b) when the representation

representation and the advantages and risks involved.

hired by the executors or trustees to advise them in administering the estate or Elkins v. Moran, 946 S.W.2d 381, 402 (Tex. App. 1997) (“Generally, an attorney

In addition to representing David with respect to the conservatorship, the

A. Conduct Rule 1.7(b)

N.H. R. Prof. Conduct 1.7.

include explanation of the implications of the common clients in a single matter is undertaken, the consultation shall and the effect of such limitations upon the attorney-client relationships,

lawyer’s responsibilities under the Model Rules of Professional Conduct.”). representation of Brault and David would not adversely affect either client, evidence that he considered and reasonably concluded that the concurrent

from discussing with both clients future, material limitations that might occur of loyalty,

represents beneficiary of an estate);

Thus, the respondent violated Conduct Rule 1.7(b) because there is no

e.g., Restatement (Third) of the Law Governing Lawyers § 122 comment c(i).

relieve a lawyer undertaking dual representation of fiduciary and beneficiary duties owed by the lawyer to the fiduciary-client, including some limited form Lawyers § 135 comment c (2000) (same). The doctrine, therefore, does not

426 (2002) (discussing conflicts where lawyer serving as fiduciary concurrently conservator.”); cf. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. coincide, if they diverge, the conservator’s attorney owes a duty only to the that the fiduciary client has obligations toward the beneficiaries does not (2009) (“Although in many respects the interests of the ward and conservator beneficiary. See 3 R. Mallen & J. Smith, Legal Malpractice § 28:10, at 1267 liability,” address competing loyalties where a lawyer represents both fiduciary and Estate of Gory, 570 So. 2d 1381, 1383 (Fla. Dist. Ct. App. 1990), and does not create a direct attorney-client relationship with the beneficiary, cf., e.g., In re

see G. Hazard, Jr. & W. Hodes, supra § 2.7, at 2- p. 11 11, this does not

Furthermore, although the doctrine extends to beneficiaries some of the

misconduct”). Comm. on Ethics and Prof’l Responsibility, Formal Op. 380 (1994) (“The fact

N.H. R. Prof. Conduct Scope Commentary (repealed 2008). See ABA

conduct through disciplinary agencies . . .[,] not . . . [as] a basis for civil “designed to provide guidance to lawyers and . . . a structure for regulating Hodes, supra § 2.7, at 2- p. 11 11 to 2–16. The Conduct Rules, however, were duties upon a lawyer as a basis for civil liability. See G. Hazard, Jr. & W. along to the client by the fiduciary; and must “further note that the doctrine appears to rest largely upon cases imposing legal beneficiary; must ensure that truthful and complete information is passed However, we have not adopted the primary-derivative client doctrine. We

substantive rights on behalf of third parties”). Conduct Rules “are aimed at policing the conduct of attorneys, not at creating

But see State v. Decker, 138 N.H. 432, 438 (1994) (noting that

ward’s interest “may have an obligation to prevent or rectify the guardian’s that lawyer representing guardian and aware that guardian acting adversely to Conduct 1.14 ABA Model Code Comments (2007) (amended 2007) (providing our Conduct Rules for the doctrine’s underlying principle. See N.H. R. Prof. wrongfully harm the beneficiary.” Id. at 2- p. 11 11, 2-12. There is some support in

deemed employed to further” the fiduciary’s legally required service to the at 2- p. 11 11. Pursuant to that doctrine, a lawyer representing a fiduciary “must be the conservatorship for each of these services.

p. 12 also drafted affidavits accompanying the petition for guardianship and billed hired Attorney Walker to initiate guardianship proceedings. The respondent advice in his capacity as a lawyer both before and after Brault and Svetlana

agrees to give or actually gives the desired advice or assistance.” attorney’s professional competence, and (3) the attorney expressly or impliedly

fundamental basis of the attorney-client relationship.

counsel and continued assistance. The respondent thereafter communicated

Hampshire order to retain new counsel.

an attorney, (2) the advice or assistance sought pertains to matters within the

guardianship. Consultation with the intent of seeking legal advice is the

problems and concerns about David. She too later accepted the respondent’s around the time of David’s March 1 surgery by relating to the respondent her continued assistance. Svetlana implicitly sought the respondent’s assistance attorney-client relationships by advising David after service of the New representative capacity). Indeed, the respondent confirmed the existence of the ratification of the attorney’s actions. 39, 45 (1983) (stating that compensation may be evidence of practicing law in client relationship is created when (1) a person seeks advice or assistance from See Bilodeau v. Antal, 123 N.H.

client relationships with Brault and Svetlana in pursuit of the New Hampshire 1.7(a). We agree. finding that, by clear and convincing evidence, the respondent formed attorney-

2001 about guardianships and later accepted the respondent’s counsel and Governing Lawyers § 14 comment c. Brault consulted the respondent in late

manifestation of intent may be implied by surrounding circumstances or and Brault in the New Hampshire guardianship proceeding. “An attorney- See id. The

and Texas guardianship proceedings constituted a violation of Conduct Rule The stipulated facts and exhibits directly and inferentially support the

will be directly adverse to another client . . . .” Arcidy, 138 N.H. 20, 25 (1993) (quotation omitted).

attorney-client relationship. The respondent first disputes the finding that he represented Svetlana

The PCC asserts that representing Brault and Svetlana in the New Hampshire

“A lawyer shall not represent a client if the representation of that client

B. Conduct Rule 1.7(a)

not expressly discuss conflicts of interest or their potential impact upon the potential for disagreements and discord between the two,” the respondent did Although at one point the respondent had “[a] lengthy discussion . . . about the and with knowledge of the consequences,” N.H. R. Prof. Conduct 1.7(b)(2). N.H. R. Prof. Conduct 1.7(b)(1), or that the clients consented “after consultation circumstances.” p. 13 the action that is reasonably viewed as the least restrictive action under the respecting the client’s autonomy dictates that the action taken . . . should be

Ethics and Prof’l Responsibility, Formal Op. 404 (1996). “[T]he principle of taking such action.” nothing in the rule suggests that the lawyer may represent a third party in

action consistent with the client’s directions and decisions.” ABA Comm. on the client’s own interest. protect the client and there are no less restrictive alternatives available[,] . . .

impairment shall also be considered in determining the adequacy

party, however well-intentioned.” Id. it must be on his own authority under Rule 1.14 and not on behalf of a third

to file a petition for guardianship upon concluding that it is necessary to Rule 1.14. Although Conduct Rule 1.14(b) “clearly permits the lawyer himself maintain a normal client-lawyer relationship with the client.’” The respondent’s actions fell well outside the safe harbor of Conduct lawyer acting under Conduct Rule 1.14 “‘shall, as far as reasonably possible, guardianship proceedings, RSA 464-A:6, I (2004), we have stressed that a normal client-lawyer relationship with the client. The client’s Id. reason, the lawyer shall, as far as reasonably possible, maintain a whether because of minority, mental disability or for some other

treat the client with attention and respect, attempt to communicate and Conduct other protective action with respect to a client, only when the 1.14(a)). “This obligation implies that the lawyer should continue to Guardianship of Henderson, 150 N.H. 349, 350 (2003) (quoting N.H. R. Prof.

In light of the “absolute and unconditional” right to counsel in

N.H. R. Prof. Conduct decisions in connection with the representation is impaired, 1.14.

guardianship proceedings violated Conduct Rule 1.7(a). (b) A lawyer may seek the appointment of a guardian or take unless permitted by these rules, representing Brault and Svetlana in the Rule of Professional Conduct 1.02(g). He conceded at oral argument that,

(a) When a client’s ability to make adequately considered

At all times relevant to this action, Conduct Rule 1.14 provided:

ethically permissible in light of Conduct Rule 1.14 (amended 2007) and Texas The respondent next argues that pursuing the guardianship was taken to protect the client. p. 14 that the client lacks legal competence and that such action should be

orders with respect to, a client whenever the lawyer reasonably believes shall be as follows:

question the efficacy of the

of a guardian or other legal representative for, or seek other protective of this jurisdiction, the rules of professional conduct to be applied (B) Choice of Law. In any exercise of the disciplinary authority

the Texas court proceedings, Conduct Rule 8.5(B) provided, in relevant part: rule is inapplicable to the respondent’s actions because at all times relevant to Carroll County Probate Court in fact made a specific finding of incapacity, we Tex. Gov’t Code Ann. tit. 2, subt. G, app. A, art. 10, § 9 (Vernon 2005). This

incompetent if inadequately represented by counsel in the proceeding); the assumption that the court will make such a determination.”). contested); (g) A lawyer shall take reasonable action to secure the appointment guardianship in New Hampshire — by the end result. Texas Rule of Professional Conduct 1.02, which provides, in relevant part: Next, the respondent mistakenly cites as justification for his actions

appointed to act for” him or her). prohibited adversity. effect of an adjudication of incapacity.” RSA 464-A:12, V (2004). Although the be avoided by person adjudicated incompetent if “no representative was Restatement (Second) of Judgments § 68(4) (stating that default judgment may

judgment in a contested action may be avoided by person adjudicated the representation was prohibited by Rule 1.7(a), the lawyer cannot proceed on Restatement (Second) of Judgments § 72 (1982) (stating that requirements for appointment of temporary guardian when matter is counsel, see RSA 464-A:6, I. See RSA 464-A:12, IV (2004) (providing additional cannot justify the means chosen — representing others in seeking a ward, through the respondent’s actions, was denied his statutory right to legal furthermore because it was entered after a hearing at which the proposed

support for the contention that a finding of incapacity moots otherwise Furthermore, appointment of a temporary guardian does not “have the limited guardianship over David’s person. We acknowledge that there is some Probate Court made a finding of incapacity before granting the temporary,

court’s eventual determination of incompetence would moot the argument that

incompetence”). Nevertheless, the respondent’s argument fails because he 1.7(a) “unless and until the court makes the necessary determination of seeking guardianship over client is adverse and prohibited by Conduct Rule

any direct adversity between clients became moot after the Carroll County The respondent argues that he complied with Conduct Rule 1.14 because consequences. p. 15 former client consents after consultation and with knowledge of the materially adverse to the interests of the former client unless the

substantially related matter in which that person’s interests are

shall not thereafter represent another person in the same or a to that conduct. licensed to practice, the rules of that jurisdiction shall be applied

Conduct Rule 1.9 after he concluded representing David by continuing to loyalty.” N.H. R. Prof. Conduct 1.9(a). The PCC argues that the respondent breached owes to a former client: The duty to preserve confidences and the duty of

(a) A lawyer who has formerly represented a client in a matter

Rule 1.9 provided, in part: respondent was admitted to practice only in New Hampshire, predominant effect in another jurisdiction in which the lawyer is 483 (1996) (quotation and brackets omitted). At all relevant times, Conduct Rule 8.5(B)(2) because the record indicates that, at the relevant times, the

Sullivan Cnty. Reg. Refuse Dist. v. Town of Acworth, 141 N.H. 479,

denied admission Rule 1.9 protects former clients by recognizing “the twin duties an attorney no evidence that the respondent was “admitted to practice” in Texas. He was The PCC alleges the respondent violated Conduct Rule 1.9. Conduct

New Hampshire, see N.H. R. Prof. Conduct 8.5(B)(2)(ii). Conduct 8.5(B)(2)(i), and further suggests that his principal practice was in

the relevant time period. Texas law similarly would not apply under Conduct the admitting jurisdiction in which the lawyer principally practices; another jurisdiction, the rules to be applied shall be the rules of pro hac vice and was not a member of the Texas bar during

Texas law does not apply under Conduct Rule 8.5(B)(1) because there is

N.H. R. Prof. Conduct 8.5 (amended 2005, 2007).

unless the rules of the court provide otherwise; and applied shall be the rules of the jurisdiction in which the court sits, generally or for purposes of that proceeding), the rules to be

(ii) if the lawyer is licensed to practice in this and jurisdiction, and jurisdiction, the rules to be applied shall be the rules of this (i) if the lawyer is licensed to practice only in this (2) for any other conduct,

before which a lawyer has been admitted to practice (either (1) for conduct in connection with a proceeding in a court p. 16 Because there is no evidence that David consented to the conflict,

expenses by the conservatorship and the respondent’s conflict of interest. McCandless detailed concerns about payment of certain legal and medical should have detected the adversity as early as August 2002, when Attorney

over his person. materially adverse to David’s interests because David opposed a guardianship

adversity until March 18, 2003 (the date Brault resigned as conservator), he

to make decisions. Representing Brault in each of these proceedings was

conservator’s part. While the respondent argues that there was no true were materially adverse to Brault’s because he was alleging misconduct on the substantially related to the earlier conservatorship matters. David’s interests

conservatorship itself because each concerned David’s capacity and autonomy were substantially related to the New Hampshire guardianship matters and the between the two actions. Similarly, the guardianship proceedings in Texas

and payment of certain expenses. This matter was the same and/or

person in New Hampshire was substantially related given the factual overlap

Brault against David’s challenges to the management of the conservatorship respondent violated Conduct Rule 1.9(a).

matter; and a lack of consent on the part of the former client. representation of the present client in the same or a substantially related The simultaneous effort to establish a permanent guardianship over David’s

The respondent further violated Conduct Rule 1.9(a) by representing

B. Management of the Conservatorship

guardianship proceedings after April 24, 2002. Conduct Rule 1.9(a) by representing Brault in the New Hampshire and Texas materially adverse interests between the former client and a present client; as the temporary guardianship ordered by the Carroll County Probate Court. consultation and with knowledge of the consequences, the respondent violated 2002 effort to extend the temporary guardianship order was the same matter p. 16 Because there is no evidence that David consented to the conflict after respect to the Texas and New Hampshire guardianship proceedings. The May

See N.H. R. Prof. Conduct 1.9(a).

attorney-client relationship between the attorney and the former client;

24, 2002. The respondent thereafter continued representing Brault with We will assume that the respondent ceased representing David on April

A. The Guardianship Proceedings

Cnty. Reg. Refuse Dist.,141 N.H. at 481-82.

A violation of Conduct Rule 1.9 consists of four elements: a valid

connection with the disputed management of the conservatorship. We agree. represent Brault in the Texas and New Hampshire guardianship matters and in p. 17 17

similar conduct in the future. bar, preserving the integrity of the legal profession, and preventing for the most serious misconduct.” but on protecting the public, maintaining public confidence in the violations; it might well be and generally should be greater than the sanction the sanction for the most serious instance of misconduct among a number of

facts and circumstances.” 1.9, the respondent continuously violated his duties of loyalty to multiple We first consider the duty violated. By violating Conduct Rules 1.7 and

existence of aggravating or mitigating factors. Id. (quotation omitted). the potential or actual injury caused by the lawyer’s misconduct; and (d) the Standards, we consider: (a) the duty violated; (b) the lawyer’s mental state; (c) Imposing Lawyer Sanctions (1992) (Standards) for guidance. Id. Under the

misconduct charges, “the sanction imposed should at least be consistent with

“In deciding the appropriate sanction, we consider the case on its own turn to the sanction. Conner’s Case, 158 N.H. at 303 (citation omitted).

Conduct Rule 8.4(a).

violate the Rules of Professional Conduct.” conduct. When determining whether to impose the ultimate appropriate sanction for a violation of the rules governing attorney We retain the ultimate authority to determine the

Having concluded that the respondent violated the Conduct Rules, we

mentioned this violation at oral argument, citing violating Conduct Rules 1.7(a), 1.7(b), and 1.9(a), the respondent also violated

Conduct Rule 8.4(a) prohibits lawyers from “violat[ing] or attempt[ing] to

IV. Conduct Rule 8.4(a)

409 (1986). We therefore consider it waived. See In re Estate of Leonard, 128 N.H. 407, the alleged violation of Conduct Rule 1.5 without any analysis or argument. N.H. 340 (1988). However, in its brief the PCC makes only passing reference to

time when [he] was acting in violation of Rules 1.7 and 1.9.” The PCC briefly charging “illegal fees” because his fees were “generated during the period of The PCC alleges the respondent violated Conduct Rule 1.5(a), by

III. Illegal Fees potentially serious injury to a client; or

p. 18 information relating to the representation of a client client are materially adverse, and knowingly uses

possible.” J. Hyman, respected, and that he or she retains as much dignity and autonomy as the lawyer or another, and causes serious or hears his or her wishes and preferences, that his or her due process rights are

guardianship proceedings. a matter in which the interests of a present or former effect of denying David legal representation in the New Hampshire distress, the respondent’s misconduct, coupled with his denial thereof, had the

knows have adverse interests with the intent to benefit RSA 464-A:6, I. The proposed ward “needs an advocate to make sure the court

disbarment where a lawyer:

(c) represents a client in a matter substantially related to

mother, and the funding of David’s trusts. In addition to causing David

(b) simultaneously represents clients that the lawyer proposed wards have an “absolute and unconditional” right to legal counsel. injury in such a denial is reflected within the statutory mandate that all undertake representation of his or her legal interests.”). The potential for appropriate baseline sanction is disbarment. The Standards provide for harm and potential harm caused, we conclude, as did the PCC, that the Considering the duty violated, the respondent’s mental state, and the

Life § 8.02[5], at 8-23 (2009).

behavior was, at a minimum, knowing. motions for disqualification, we agree with the PCC that the respondent’s guardianship proceeding, the proposed ward is entitled to counsel who will interests, and the fact that at least twice these ethical concerns were raised in See Henderson, 150 N.H. at 351 (“In a

hindered his judgment.”

violations. The respondent’s mental state may be one of intent, knowledge, or inception of the conservatorship, the respondent exposed the estate to potential respondent’s misconduct. By operating under a conflict of interest at the We next consider the actual and/or potential injury visited by the

length of time during which the respondent operated under various conflicting

respondent’s acts, and not the external pressures that could potentially have

Id. at 304. “What is relevant . . . is the volitional nature of the

Next, we review the respondent’s mental state at the time of the

were, as the PCC characterized them, “open and obvious.” as a “bedrock dut[y] of the legal profession.” Id. These conflicts of interest clients over a period of almost two years. We have described the duty of loyalty and causes injury or potential injury to a client,” p. 19 case, David’s vulnerability to overreaching. acknowledge the wrongful nature of his conduct, and, most importantly in this

we have previously rejected delay as a mitigating factor,

interest and does not fully disclose to a client the possible effect of that conflict,

experience, his pattern of misconduct and multiple violations, his refusal to 19

explained at oral argument that the delay was due, in part, to a backlog. While

suspension, a sanction appropriate “when a lawyer knows of a conflict of connection with the conflicts of interest rises above that warranting merely return fees; and David’s vulnerability. We acknowledge his substantial Accordingly, we agree with the PCC that the respondent’s misconduct in conduct; his substantial experience; his lack of restitution or any effort to process evidenced some fundamental failure on his part. if anything, was minimized by his cooperative attitude. pattern of misconduct; refusal to acknowledge the wrongful nature of his See generally N.H. 613, 621-22 (2007), the delay here was not caused by the respondent and,

significant mitigating weight to the delay in these proceedings. The PCC cooperative attitude toward [the] proceedings.” Id. § 9.32(e). We also attach respondent’s “full and free disclosure to [the] disciplinary board . . . [and his] Richmond’s Case, 152 N.H. 155, 161 (2005), we accord mitigating weight to the a professional duty to cooperate with the committee’s investigation,” (identifying remorse as mitigating factor). Additionally, although “a lawyer has a time when the respondent suspected that she harbored ulterior motives. See id. § 9.32(l) of misconduct, he recognized that reaching this point in the disciplinary aggravating factors: selfish motive due to the large amount of fees garnered; a the court, David, the PCC and the bar and, although he disputed the findings his misconduct. Furthermore, at oral argument the respondent apologized to and his excellent reputation among judges and practicing attorneys mitigate admission We agree with the PCC that the respondent’s lack of disciplinary record advice during the Texas proceeding despite a court order denying his conflicts of interest. Furthermore, the respondent persisted in rendering legal See id. § 9.22.

benefit Svetlana by advancing her attempt to gain greater control over David at the legal fees and the June 2002 accounting. The respondent also intended to the baseline sanction of disbarment. The PCC identified the following Brault by steadfastly defending Brault’s conduct against David’s challenges to We next consider the effect of aggravating and mitigating factors upon

should have known were improper. Other attorneys twice pointed out the

serious and/or potentially serious. Finally, the respondent intended to benefit

pro hac vice. The injuries caused can only be characterized as

respondent undertook and persisted in representations which he knew or Standards, supra § 4.31. In violating Conduct Rules 1.7(a) and 1.9, the

causes serious or potentially serious injury to a client. with the intent to benefit the lawyer or another, and legal profession.

p. 20 respondent, is insufficient to protect the public and preserve the integrity of the

committee for its expenses in investigating and prosecuting this matter. 20

censure, the sanction recommended by the hearing panel and urged by the appropriate action pursuant to Conduct Rule 1.14. On the other hand, public order becomes final. We further order the respondent to reimburse the sanction of disbarment under these circumstances might discourage the sanctity of client autonomy. The suspension begins upon the date this communicating to the bar and the public the primacy of the duty of loyalty and

and mitigates much, though not all, of his misconduct. Imposing the ultimate

years is the maximum period of suspension under the Standards, thus

BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

Sup. Ct. R. 37(19)(a).

respondent’s fear for David’s welfare was never questioned in these proceedings improperly favored Brault’s and Svetlana’s interests, the reasonableness of the sanction. Therefore, we order the respondent suspended for two years. Three continuous and knowing violations of his duties of loyalty warrant a greater censure where conflicted attorney acted negligently). The respondent’s selfish or improper motive. See Shillen’s Case, 149 N.H. 132, 140 (2003) (ordering public pursuant to the Standards where conflicted attorneys act pursuant to some

acquisition of property for less than market value). While the respondent gain); Coffey’s Case, 152 N.H. 503, 513-14 (2005) (excessive fees and malpractice claim); Wolterbeek’s Case, 152 N.H. 710, 717 (2005) (financial

suspension is the appropriate sanction. We typically impose disbarment Taking into consideration all of these circumstances, we conclude that

2009) (collecting cases where delay considered mitigating). as Defense or Mitigating Circumstance, 93 A.L.R.3d 1057 § 18 (1979 & Supp. Annotation, Attorneys at Law: Delay in Prosecution of Disciplinary Proceeding