Nina Schumann f/k/a Bernard (2009)

034

proceeding, Ms. Schumann operated her law office as Law Office ofH. Nina Ms. Schumann was admitted to practice in 1985. At all times material to this 1. Ms. Nina Schumann is an attorney licensed to practice law in New Hampshire.

following factual findi.!lgs of the Hea.'mg Panel, by clear and convincing evidence: The Professional Conduct Committee has determined that the record supports the I. FINDINGS OF FACT

below: Panel Report, the Professional Conduct Committee makes factual findings and rulings as detailed Findings, Transcript of the October 22, 2008, hearing before the Hearing Panel, and Hearing Having reviewed the record, including the Notice of Charges, Answer, Proposed

David N. Cole, James R. Martin. Susan Chollet abstained from the vote. Vice Chair, Susan R. Chollet, Marilyn B. McNamara, Gerald A. Daley, Richard H. Darling, Members ofthe Committee present included: Margaret H. Nelson, Chair, ToniM. Gray,

Discipline Office. Respondent appeared on her O"l'iTI behalf. above-referenced matter. Landya B. McCafferty, Disciplinary Counsel, appeared for the Attorney On December 9, 2008, the Professional Conduct Committee heard oral arguments in the

Bernard, Nina H advs. Diane C. Junicke-Davis # 06 -

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

home. indemnify [Ms. Davis] from all responsibility regarding the associated with the home. He shall save, hold harmless and responsible for all costs that have been and will be be awarded all proceeds from the sale. He shall be five (5) years, the property shall be sold. [Mr. Davis] shall the IRS indebtedness. If the property is refinanced within each and every year within five (5) years of the surrender of make a good faith effort to have the property refinanced parties, the marital home has no equity. [Mr. Davis] shall to any a.'1d all payments t.hereon. By agreement of the [Mr. Davis] shall be awarded the marital homestead subject

awarded the marital home to Ms. Davis's ex-husband, Mr. Davis as follows: Decree of Divorce dated December 6, 2000. Paragraph 17 of the Divorce Decree 6. Prior to retaining Ms. Bernard, Ms. Davis's divorce had been fmalized by a Final

5. Ms. Davis is the Complainant in this ~ttorney discipline case.

4. Ms. Bernard and Ms. Davis entered into a fee agreement dated June 26, 2003.

and Hugh H. Davis (docket #1997-M-0399)." Family Division at Brentwood and was entitled"In the Matter of Diane C. Davis matter from July 2003 until October 2004. The matter was then pending in the 3. Ms. Bernard represented Diane C. Junicke-Davis in a post-divorce, custodial

name at all times relevant to this attorney discipline proceeding. 2. For the purpose of this case, Ms. Schumann is referred to as Ms. Bernard, her

the name H. Nina Bernard. Bernard, 25 Hampton Road, Exeter,New Hampshire 03833, and operated under p. 3 Page 3 of 11 payment of copying fees. not release the file to Ms. Davis unless Mr. Cornell personally guaranteed the During that conversation, Ms. Bernard made it clear to Mr. Cornell that she would 14. On October 12,2004, 'tv"ll. Cornell spoke with Ms. Bernard on t.~e telephone.

of the portions ofthe file containing pleadings and correspondence. to copy the entire file, Ms. Bernard requested that Top Copy expedite the copying 13. Because Top Copy informed Ms. Bernard that it would take more than one week

took the file to Top Copy in Exeter on October 10,2004, to be copied. 12. The file was voluminous. Before turning over the file to Ms. Davis, Ms. Bernard

11. Shortly thereafter, Ms. Davis requested her file from Ms. Bernard.

hired Mark P. Cornell, Esquire, to represent her. 10. On or about October 8, 2004, Ms. Davis terminated [sic] Ms. Bernard. Ms. Davis

the Quitclaim Deed. which was scheduled in her case for November 9, 2004, to decide whether to sign advised Ms. Davis to wait until after a pending hearing on financial matters, 9. Ms. Bernard advised Ms. Davis not to sign the Quitclaim Deed. Ms. Bernard

Davis for Ms. Davis's signature. a Quitclaim Deed for the purpose of conveying the marital homestead to Mr. Marshall, Esquire" wrote a letter dated August 4, 2004, to Ms. Bernard, enclosing 8. While Ms. Bernard was representing Ms. Davis, Mr. Davis's attorney, Keri 1.

2000. Supreme Court. The Court's Order affirming the Decree was dated December 6, 7. The Decree was dated February 8, 2000, but Mr. Davis appealed the Decree to the p. 4 Page 4 of 11

Please discuss with Diane how this is to be paid. from Top Copy for this portion of the copying is $342.50. ready for Diane to pick up. I have let her know this. The fee The copies of the correspondence and pleadings files are

21. In a letter to Mr. Cornell dated October 21,2004, Ms. Bernard wrote:

Bernard permitted Ms. Davis to retrieve the file. 20. After receiving Mr. Cornell's guarantee of payment for copying costs, Ms.

of her file. specific reference to Ms. Davis's paying for expenses associated with the copying 19. The fee agreement between Ms. Bernard and Ms. Davis did not contain any

Bernard requested that Ms. Davis pay for the costs of copying Ms. Davis's file. 18. Ms. Bernard sent Ms. Davis a letter dated October 13,2004, in which Ms.

17. Ms. Bernard withdrew from Ms. Davis's case on October 13,2004.

Davis's case that was scheduled for November 9,2004. 16. Mr. Cornell needed the file as he was preparing for the financial hearing in Ms.

Mr. Cornell's letter is not dated.

memorializing his agreement and faxed it to Ms. Bernard. That letter stated: 15. While talking with Ms. Bernard on the telephone, Mr. Cornell typed a letter p. 5 Page 5 of 11

the following grounds: B. The Plaintiff asserts that such an attachment is justified on

attachment requested. in an amount equal to or greater than the amount of the Plaintiff will recover judgment, including interest and costs, $40,741.27. There is a substantial likelihood that the was $20,377. The Defendant presently owes the Plaintiff October 16, 2004. The total amount paid by the Defendant six partial payments. The last payment was received on regular payments on the balance due. The Defendant made paid some invoices in full. The Defendant agreed to make billed to the Defendant was $61,118.27. The Defendant services over the sixteen month period. The total amount provided itemized invoices to the Defendant for legal services to the Defendant over sixteen months. The Plaintiff Brentwood. The Plaintiff provided professional legal Davis and Hugh H Davis, in the Family Division at with Case No. 1 997-M-0399, In the Matter of Diane C. Plaintiff for legal services rendered to her in connection June 26, 2003 wherein the Defendant agreed to pay the The Plaintiff and Defendant entered into a fee agreement on

23. Ms. Bernard's Petition for Ex-Parte Attachment states as follows:

Parte Attachment," seeking an attachment on the Davis's marital homestead. fees. At the same time, Ms. Bernard also filed a pleading entitled"Petition for Ex­ Rockingham County Superior Court a lawsuit against Ms. Davis for unpaid legal 22. On November 8, 2004, the day before the fmancial hearing, Ms. Bernard filed in

included some lay members, gave their testimony great weight and tbat they were permitted to Ms. Bernard argues that tbe fact tbat attorneys testified before tbe Hearing Panel which

Mr. Davis' attorney in the earlier divorce action. with Ms. Bernard in attempting to get Ms. Davis' file, and the second witness was Ms. Marshall, attorneys were Mr. Cornell who replaced Ms. Bernard as Ms. Davis' counsel and corresponded accordance witb Rule 37A1II(b)(5)(iv) and (6) of the Rules of Professional Conduct. The Disciplinary Counsel, tbe subject oftbeir alleged expert testimony was not identified in argues tbat tbe lawyers gave expert testimony and that while they were identified as witnesses by discretion and tbus deprived her of due process by allowing two attorneys to testify. Respondent As a preliminary matter, Respondent alleges that tbe Hearing Panel Chair abused his III. ANALYSIS

of Client's File; Rule 3.3(d): Candor Toward the Tribunal, and Rule 8.4(a): Misconduct. evidence Respondent violated tbe following Rules of Professional Conduct: Rule 1.16(d): Return The Professional Conduct Committee concludes that tbere is clear and convincing II. RULINGS OF LAW

Attachment. , 24. On November 8, 2004, the Court granted Ms. Bernard's Petition for Ex-Parte

Copy for this portion of the copying is $342.50. Please discuss with [Ms. Davis] how this is to be pleadings files are ready for [Ms. Davis] to pick up. I have let her know this. The fee from Top later, Ms. Bernard wrote a letter to Mr. Cornell stating:"The copies of the correspondence and letter requesting that Ms. Davis pay the costs for copying the file. Finding 18, supra. A week supra. PCC 8, Exh. 7. On the day Ms. Bernard withdrew from the case, she sent Ms. Davis a this as my personal guarantee to pay for the copying costs of"Ms. Davis' file." Finding IS, telephone Mr. Cornell typed a letter and faxed it to Ms. Bernard stating in part:"please accept personally guaranteed payment of copying costs. Finding 14 supra. While talking on the the file, but Ms. Bernard made it clear that she would not release the file unless Mr. Cornell 10 iii! 10-11, supra. Ms. Davis' replacement counsel, Mr. Cornell, telephoned Ms. Bernard about representation was terminated by her client, Ms. Davis requested her file from Ms. Bernard. PCC failing to surrender papers to which the client was entitled. Shortly after Ms. Bernard's Here the Respondent's conduct involves, inter alia, her violation of Rule 1.16( d) by

factors on the ultimate sanction. ld. Coddington's Case. ISS N.H. at 71. We then consider the effect of any aggravating or mitigating first categorize the respondent's misconduct and then identifY the appropriate sanction. factors. Standards, supra §3.0; Coddington's Case, ISS N.H. at 71. In applying these factors, we injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating imposing sanctions: (a) the duty violated; (b) the lawyer's mental state; (c) the actual or potential Case, ISS N.H. 66 at 68 (2007). The Standards list the following factors to be considered in Imposing Lawver Sanctions (2005) (Standards), we look to them for guidance. Coddington's Although New Hampshire has not adopted the American Bar Association's Standards for

process rights were not violated. harmless. Ms. Bernard had a full opportunity to be heard and to present her'case and her due that the witnesses' testimony was primarily, if not entirely fact testimony, and that nay error was evidence applicable in judicial proceedings do not apply in hearings before the Hearing Panel, concluded that the Hearing Panel Chair did not abuse his discretion, that the strict rules of give expert opinion evidence. The Connnittee has carefully reviewed the record and has p. 8 Page 8 of 11 The above facts demonstrate by clear and convincing evidence that Ms. Bernard withheld

that there was no equity in the property. Finding 6, supra. husband, M..r. Davis; and (2) that Mr. and Mrs. Davis had stipulated in the divorce proceeding Order of December 6, 2000, awarding the entire homestead property to Ms. Davis' former material facts: (1) Ms. Davis' interest in the property, if any, was the subject of another Court's obtained the ex-parte attachment, she knew, but did not disclose to the Court, the following the Court granted the ex-parte attachment. Finding 24. At the time Ms. Bernard filed and sought an ex-parte attachment of the Davis' marital homestead. Finding 22. On that same date, November 8, 2004, Ms. Bernard filed a lawsuit against Ms. Davis for unpaid legal fees and Respondent also violated Rule 3.3(d) by not being candid with the Court. On

for copying the file. 1.16( d) by failing and refusing to provide Ms. Davis with her file without demanding payment It is demonstrated by clear and convincing evidence that Ms. Bernard violated Rule

to make that guaranty." PCC 8, Exh. 16. before you would release it. If [Ms. Davis] had been free to take her file, I would not have needed of her file. I had to guaranty that I would pay for the copies of the file if [Ms. Davis] did not disagree with your statement that you never told [Ms. Davis] that she could not have possession p. 67, II. 2-5. By letter dated January 31, 2005, Mr. Cornell repeated to Ms. Bernard:"I must wouldn't get the file? Answer: Absolutely." PCC 11, Hearing Panel transcript, October 22, 2008, after that [phone] conversation [with Ms. Bernard] that if you hadn't guaranteed payment, you however, Mr. Cornell testified in response to the following question:"Did you get the impression position that she had not demanded payment of the copying costs before releasing the file; by Top Copy...." PCC 9, Exh. 21. At the hearing before the Hearing Panel, Ms. Bernard took the Davis' file. This office relied upon your personal guarantee and requested that the file be copied 2004, wherein you issued your personal guarantee for payment of the copying fees of Diane stating in part:"Enclosed please find a copy of your letter, faxed to this office on October 12, paid." Finding 21, supra. On November 29,2004, Ms. Bernard faxed a letter to Mr. Cornell p. 9 Page 9 of 11

In determining the appropriate sanction we look to the Standards. The Standards provide:

Bernard violated rule 3.3(d). interest in the marital property which could be attached to satisfY her legal bill. As a result, Ms. property. Nevertheless, Ms. Bernard believed that her former client, Ms. Davis had an equitable another court to Mr. Davis and that the parties had stipulated that there was no equity in the property which was the subject of her ex-parte attachment had previously been awarded by Ms. Bernard also violated Rule 3.3( d) by failing to disclose to the Court that the marital

pay for it. As a result, Ms. Bernard violated Rule 1.16( d). remains that Ms. Davis was entitled to have her file returned to her promptly without having to Ms. Davis owed her approximately forty thousand dollars in attorney's fees. However, the fact understandable that Ms. Bernard felt entitled to recover the copying costs since she also felt that payment of the copying costs, the evidence is overwhelming that she did just that. It is Although Ms. Bernard maintains that she did not condition return of Ms. Davis' file upon

sanctions). never formally adopted these Standards, the Court has considered them when imposing (1991). See, e.g., Shillen's Case, 149 N.H. 132, 139 (2003) (noting that, although the Court has with the ABA Center for Professional Responsibility, Standards for Imposing Lawyer Sanctions Supreme Court See, e.g., Feld's Case, 149 N.H. 19,28 (2002). This sanction is also in accord is in accord with the purposes of attorney discipline as described by the New Hampshire Committee concludes that the appropriate discipline in this matter is a Reprimand. This sanction Having made the aforementioned findings and rulings, the Professional Conduct IV. SANCTION

As a result of violating Rules 1.l6(d) and 3.3(d), Ms. Bernard violated Rule 8.4{a).

material facts from the Court and thus violated Rule 3.3 (d). p. 10 Page 10 of 11

Based on all of the foregoing, the Committee determines that a Reprimand is the

..... ""0,.1..... ot ha"o v ..... .l-V.l-V d;s~lnserl...... tho ~........ l-' ... v ... nn"{'\1" ~jI'r':;l'nT~1"d........... oftthp propPrtv -'-..............."J t{) ~~.~.~_ Mr n~v-il::;! ~~'-'\.A.a.l.l.......... that Ms. Davis had an equitable interest in the marital property which she attached and therefore whereas, in reality, she was a sole practitioner. In mitigation, Ms. Bernard apparently had a belief received a Reprimand in 2007 as a result of her holding herself out as a member of a firm We next turn to aggravating and mitigating factors. As an aggravating factor, Ms. Bernard

believed that she was entitled to recover those costs before returning the file. denying that she conditioned the return of the file upon payment of the copying costs, apparently negligently with a client's property and causes little or no harm to the client. Ms. Bernard, while Section 4.14 provides that a Reprimand is generally appropriate where a lawyer deals

to the Court is very troublesome, there was little resulting harm to the judicial proceeding. the ex -parte attachment after it was issued. While Ms. Bernard's failure to disclose material facts Here there was little if any injury to the adverse party; indeed Ms. Davis did not object to

court and causes little or no actual or potential injury to a party or the legal proceeding. engages in an isolated instance of neglect in failing to disclose material information to the • Section 6.14 provides that a reprimand is generally appropriate when a lawyer

potential injury to a party or the legal proceeding. is negligent when failing to disclose material information to the court and causes injury or • Section 6.13 provides that a public censure is generally appropriate when a lawyer

proceeding. potential injury to an adverse party or causes a potentially adverse effect on the legal material information is improperly being withheld from the court and causes injury or • Section 6.12 that suspension is generally appropriate when a lawyer knows that p. 11 Page 11 of II

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

37(3)(c). appeal this decision to the New Hampshire Supreme Court. See also Supreme Court Rule Pursuant to Supreme Court Rule 37(A)(III)(d)(2)(D)(4)(A), the parties have the right to VII. RIGHT TO APPEAL

Respondent for violating N.H. R. Prof. Conduct, Rules 1.16(d); 3.3(d) and 8.4(a). For all of the above reasons, the Professional Conduct Committee issues a Reprimand to VI. CONCLUSION

this matter. Respondent is assessed all costs associated with the investigation and prosecution of V. COSTS

appropriate sanction for these violations.