Nina Schumann f/k/a Bernard (2007)

File H. Nina Bernard, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

November 20, 2007

parties attached hereto and made part thereof. issue a Reprimand in the above-captioned matter on the basis of the Stipulation filed by the the Motion to Permit Waiver of the Hearings Committee Process. The Committee also voted to On November 20,2007, the Professional Conduct Committee, upon consideration, voted to grant

Gerald A. Daley* Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney member Thomas P. Connair James J. Tenn, Jr. David N. Cole David N. Page* Toni M. Gray, * Vice Chair 603-224-5828. Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Gretchen Rule Hamel Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Richard H. Darling*

recently-purchased house.

him on a claim for damages relating to a chronic paint problem on his

2. In the Fall of p. 2 1999, David West retained Arthur C. Randlett to represent

Hampshire 03833.

2000. Her current law office address is 25 Hampton Road, Exeter, New

Hampton, New Hampshire 03842 from November p. 2 1997 until February

her law office as Salomon, Randlett & Bernard, 750 Exeter Road,

Ms. Bernard was admitted to practice in p. 2 1985. Ms. Bernard operated

p. 2 1. Ms. Bernard is an attorney licensed to practice law in New Hampshire.

I. Stipulation of Facts

Bernard, hereby submit this Stipulation in the above-referenced case.

Disciplinary Counsel, Landya B. McCafferty, and Respondent, H. Nina

$ p. 3 2,500 retainer.

9. On December 15, 1999, Mr. West hired Mr. Randlett and paid him a

represent Mr. West and outlined the fee arrangement.

8. In a letter to Mr. West dated November 30, 1999, Mr. Randlett agreed to

had two partners who supported and worked alongside him.

Randlett. In hiring Mr. Randlett, Mr. West believed that Mr. Randlett

7. Mr. West did not have any prior knowledge or association with Mr.

partnership or firm.

Messrs. Randlett and Salomon and Ms. Bernard were in a law

6. Upon seeing the advertisement, Mr. West reasonably concluded that

that they were simply sharing office space.

& Bernard, Attorneys at Law." Nothing in the advertisement disclosed

photo of the three of them together with the caption,"Salomon, Randlett

Bernard ran an advertisement in the Yellow Pages that consisted of a

5. In or about the Fall of 1999, Messrs. Randlett and Salomon and Ms.

office space.

pay a pro rata share of the overhead for the operational expenses of the

Ms. Bernard. They had no partnership agreement; rather, each agreed to

Exeter Road in Hampton with two other attorneys, Craig N. Salomon and

4. In or about the Fall of 1999, Mr. Randlett shared office space at 750

advertisemen ts.

p. 4 3. Mr. West discovered Mr. Randlett through the local Yellow Pages 3

simply shared office space and expenses related thereto.

and Ms. Bernard were not, in fact, a legal partnership. Rather, they

16. During the lawsuit, Mr. West learned that Messrs. Randlett and Salomon

to his retaining Mr. Randlett.

was dismissed on the basis that Mr. West's cause of action expired prior

Randlett's alleged negligent mishandling of Mr. West's claim. The lawsuit

Salomon and Ms. Bernard, for legal malpractice associated with Mr.

turned out, Mr. West brought suit against Mr. Randlett, as well as Mr.

15. In or about May 2000, Mr. West and Mr. Randlett parted ways. As it

association with Messrs. Randlett and Salomon ended.

14. In or about February 2000, Ms. Bernard moved out of the office and her

callers as"Salomon, Randlett & Bernard."

answered the phone for the three of them and identified the office to

Salomon and Ms. Bernard shared a receptionist. Their receptionist

1 p. 4 3. From the Fall 1999 through February 2000, Messrs. Randlett and

& Bernard, Attorneys at Law."

12. Similarly, the sign outside Ms. Bernard's office read:"Salomon, Randlett

Salomon, Randlett & Bernard, Arthur C. Randlett."

11. Mr. Randlett signed his letters to Mr. West as follows:"Very truly yours,

Law."

letterhead bore the heading:"Salomon, Randlett & Bernard, Attorneys at

10. Throughout Mr. Randlett's representation of Mr. West, Mr. Randlett's p. 5 4

identified Ms. Bernard's business to the public as"Salomon, Randlett &

stationery of the same name; (c) her use of a shared receptionist who

alongside a photo of the three attorneys); (b) her business letterhead and

Pages (the name"Salomon, Randlett & Bernard, Attorneys at Law"

them in the following ways: (a) her business advertisement in the Yellow

knowingly implied that she was in such a law partnership or firm with

Messrs. Randlett and Salomon during this time-frame, Ms. Bernard

21. Although Ms. Bernard was not, in fact, in a law partnership or firm with

another.

Messrs. Randlett and Salomon; nor did they ever share profits with one

Bernard never entered into a law partnership or firm agreement with

space and overhead expenses with Messrs. Randlett and Salomon. Ms.

20. From the Fall of 1999 through February 2000, Ms. Bernard shared office

in a partnership or other organization only when that is the fact."

19. Under Rule 7.5(d), Ms. Bernard had a duty to"imply that [she] practicers]

18. Allegations set forth above are incorporated by reference.

Rule 7.S(d): Implying a Partnership/Law Firm

II. Stipulation as to Rules Violated

partnership or firm with either Mr. Randlett or Mr. Salomon.

herself out as a partnership or law firm when she was not in a

professional misconduct against Ms. Bernard for, inter alia, having held

17. In a letter dated July 20, 200 p. 6 5, Mr. West asserted allegations of 5

four part analysis for courts to consider in imposing sanctions:"(a) the

guidance. Coffey's Case, 1 p. 6 52 N.H. at 513. The Standards set forth a

26. Although the Court has not adopted the Standards, it looks to them for

take into account the severity of the misconduct." Id.

p. 6 503, 513 (2005) (internal quotation marks omitted)."The sanction must

and prevent similar conduct in the future." g, Coffey's Case, 1 p. 6 52 N.H.

public confidence in the bar, preserve the integrity of the legal profession,

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

the conclusion that Ms. Bernard should be Reprimanded. The purpose

Standards for Imposing Lawyer Sanctions (1992) ("Standards") support

2 p. 6 5. Both case law in New Hampshire and the American Bar Association's

purposes of attorney discipline.

as the appropriate sanction in this matter. A Reprimand would serve the

24. Disciplinary Counsel and Ms. Bernard jointly recommend a Reprimand

III. Stipulation as to Sanction

evidence of a violation of N.H. R. Prof. Conduct 8.4(a).

violated the above rules, there is necessarily clear and convincing

23. Because there exists clear and convincing evidence that Ms. Bernard

evidence of a violation of N.H. R. Prof. Conduct 7. p. 6 5(d}.

22. Ms. Bernard's conduct in this regard constitutes clear and convincing

Randlett & Bernard, Attorneys at Law."

Bernard;" and (d) her business sign identifying itself as"Salomon, p. 7 6

Ms. Bernard acted without any purposeful intent to harm or deceive.

practice and association with Messrs. Randlett and Salomon. However,

negligently concering the misleading communications about her law

30. With respect to Ms. Bernard's mental state, Ms. Bernard acted

and the injury caused by her misconduct.

29. The Standards next require analysis of both Ms. Bernard's state of mind

· .'. f.: her law practice.

professional obligation to communicate accurately about the nature of

28. Under the first prong of the analysis, Ms. Bernard violated her

sanction.").

the effect of any aggravating or mitigating factors on the ultimate

sanction. See id. ("After determining the sanction, [the Court] considers

aggravating or mitigating factors and whether they affect the baseline

looks to the fourth and final step in the analysis: the existence of any

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

categorize the respondent's misconduct and identify the appropriate

152 N.H. 710, 714 (2005) ("In applying these factors, the first step is to

misconduct and determining a baseline sanction. See Wolterbeek's Case,

27. The first three steps create the framework for characterizing the

N.H. at 513.

aggravating or mitigating factors." Standards § 3.0; Coffey's Case, 152

injury caused by the lawyer's misconduct; and (d) the existence of

duty violated; (b) the lawyer's mental state; (c) the potential or actual p. 8 7

sanction.

any aggravating and/ or mitigating factors that affect the baseline

... 35. The final step in the analysis, however, is to determine whether there are

Reprimand and a Public Censure. See Standards § p. 8 7.0.

appropriate baseline sanction in this case falls somewhere between a

34. Having analyzed the facts under the first three prongs of the test, the

intervened with Mr. Randlett on behalf of Mr. West.

underlying claim as untimely), but she is certain that she would have

;;, changed the end result in this case (Le., the dismissal of Mr. West's

to him. Ms. Bernard is not clear on how her intervention might have

helped him when he was having difficulty getting Mr. Randlett to respond

wishes that Mr. West had been able to reach her so that she could have

confronted Mr. Randlett directly on behalf of Mr. West. Ms. Bernard

about his difficulties dealing with Mr. Randlett, she would have

33. Ms. Bernard would testify that, had Mr. West spoken directly with her

Randlett had he known Mr. Randlett was a solo practitioner.

partnership. Mr. West would testify that he would not have hired Mr.

communications and advertising that implied that Mr. Randlett was in a

because, in deciding to hire Mr. Randlett, Mr. West relied on the

32. Here, Mr. West suffered harm as a result of Ms. Bernard's actions

actual injury caused by Ms. Bernard's misconduct.

31. The third prong of the analysis requires consideration of the potential or p. 9 8

nonetheless hereafter bound to the facts as stipulated.

Violated and/ or the Stipulation as to Sanction, the Respondent is

Conduct Committee does not agree with the Stipulation as to Rules

bound to the facts as stipulated. In the event that the Professional

40. Respondent understands that by signing this Stipulation, she is hereby

v. Effect of Stipulation

Conduct Committee in the investigation and prosecution of this matter.

39. Ms. Bernard agrees to pay the expenses incurred by the Professional

IV. Stipulation as to Costs

Reprimand.

discipline in New Hampshire, the appropriate sanction in this matter is a

recommended by the Standards, as well as the purposes of attorney

'. 3 p. 9 8. In sum, taking into consideration both the four part analysis .: , f this matter.

Reprimand rather than a Public Censure, is the appropriate sanction in

37. In light of the underlying facts as well as the mitigating factors, a

motivated by dishonesty or deceit. See id. at § 9.32(b).

Additionally, while Ms. Bernard's misconduct was negligent, she was not

fully with the disciplinary process. See Standards § 9.32(e).

acknowledged her misconduct, accepted responsibility and cooperated

Ms. Bernard has no prior disciplinary record. Second, Ms. Bernard has

36. There are several mitigating factors and no aggravating factors. First, p. 10 9

".-­

Dated: October.::1-, 2007

Respectfully submitted