Kathleen A. Earnshaw (2010)

assistants,includingLeslie-AnnSmith. owned andoperatedher lawofficeas asolepractitioner.Shealsoemployednon-lawyer Nashua,New Hampshire03060.Atalltimesmaterialto thisproceeding,Ms. Earnshaw 2. SinceJulyof2004,Ms. Earnshawhasmaintainedanofficeat 35 EastPearlStreet,

New Hampshire Bar in 1992. 1. KathleenM. Earnshaw,Esquire,is a NewHampshireattorneywho wasadmittedto the are established by clear and convincing evidence: astothefactsofthismatter.Accordingly,thefactsdescribedbelowas setforthintheStipulation The RespondentandtheADO havestipulated,andtheCommitteeacceptstheStipulation

Committee Process. The CommitteegrantsthepartiesJointMotiontoWaive NoticeofChargesand Hearings Cole was absent. Daley, Richard H.Darling,Julie A. Introcaso, James R.Martinand JenniferL. Parent.David N. ToniM. Gray,ViceChair,SusanR.Chollet,Thomas P.Connair,AlanJ.Cronheim,GeraldA. matter.Members presentincluded:MargaretH.Nelson,Chair;BenettePizzimenti,ViceChair, On April20,2010,theProfessionalConductCommitteedeliberatedtheabove-captioned

Earnshaw, KathleenA. advs.AttorneyDisciplineOffice # 09-005

AlanJ.Cronheim HollyB.Fazzino,Admin. Coordinator Thomas P.Connair *non attorneymember DavidN. Cole Jennifer L. Parent Susan R. Chollet James R. Martin Toni M.Gray,*Vice Chair 603-224-5828 ♦ Fax228-9511 Julie A. Introcaso BenettePizzimenti,ViceChair Concord,New Hampshire03301 RichardH. Darling* MargaretH. Nelson,Chair 4 ChenellDrive,Suite102 GeraldA. Daley*

office, Ms.Smith was gone and her keys were on her desk. 15. Ms. Earnshawwent to the bank and ordered statements for the past year. Returning to her

to Ms. Earnshaw were partiallywhitedout. Smithhandedher only one or twoand hadtroublefindingmore. Thestatementsshown 14. Ms. Earnshaw asked Ms. Smith for therecentstatementson Mr. Plante'saccount but Ms.

Mr. Plante's nursing home stating that Mr.Plantewas behind in his bill. 13. On February18,2009, Ms.Earnshawhearda voicemail from the billingdepartmentat

reviewthebank statementson a regular basis. 12. The checkregisterentrieswerenotatypical.Duringthis time, Ms.Earnshawdid not

Mr. Plante'sbills. Ms. Earnshawreviewed the checkregisterto be surethat there were enough funds to pay 11. Overthe lastyearofher employment, Ms. Smithfellbehind on herreconciliationsbut

reconciledthe checking account and Ms.Earnshawreviewed thereconciliation. 10. Ms. Smith maintained a checkregisteron a Quickenprogramon her computer. She

creditors. 9. No checks could be writtenwithoutthebillattached.Ms. Smith mailed thechecks to

checks. recordsand broughtchecks andbills to Ms.Earnshawwho reviewed and signedthe 8. With respecttoMr. Plante,Ms. Smithcollectedbills,arrangedforpayment,maintained

indication that Ms.Smith would ever violate the trust placed in her. 7. Overa prolongedperiodofemployment,Ms. Smith never gave Ms.Earnshawany

investmentand savingsaccounts. TD Banknorth. Funds were deposited into the checking account from Mr. Plante's 6. Ms. Earnshawhad opened apersonalchecking account for Mr.Planteat what was then

stroke. He was living in a Nashua nursinghome where he still resides. 5. In 2001,Mr. Plante was about 60 years old and had physicallimitationscaused by a

ofpayingMr.Plante'sbills from hispersonalchecking account. 4. In 2001,Ms. Earnshaw was appointed PowerofAttorneyby Paul Plante for the purpose

and trusted hercompletely. almost11 years. During that time, Ms.Earnshaw occasionally socializedwithMs. Smith 3. As ofFebruaryof2009, Ms.Smithhad been Ms. Earnshaw's legalassistant/secretaryfor p. 3 Page 3of7 2009. 28. At Ms. Earnshaw's urging, Mr.Planteretainednew counsel at the beginningofApril

audit.The auditorwas John Schiffman from Schiffman,Paul & Dottilio,P.C. 27. Ms. Earnshaw's insurancecarrierarrangedfor a certified public accountant to do an

Mr. Plante,and a previously assessed late fee was eliminated. 26. Ms. Earnshawpaid Mr. Plante'snursinghome bill, explainedthe delay was nofaultof

account upon receipt. sent her two checks totaling $75,000 which Ms.Earnshaw deposited in Mr. Plante's beentaken.At that point, Ms.Earnshawsaidshe knewof$75,000.Ms. Smith's mother 25. Beforethe totalamount had been determined,Ms. Smith'smother asked how much had

24. The amount stolen appearedto be about$134,000,all from Mr. Plante's account.

discovered. relatingto Mr. Plante'saccount.In thatprocess,more and moreforgedchecks were 23. Ms. Earnshaw notifiedher malpracticecarrierand began gathering allfinancialrecords

Departmentdetective on thatdate. Officein a letterofthat same date. She also reportedmeetingwith a Nashua Police 22. Also on February24, 2009, Ms.Earnshawreportedthe matter to the Attorney Discipline

present,and explained the theft. 21. On February24, 2009 Ms.Earnshawmet withMr. Plante,with oneofhisrelatives

forgedchecks. same bank. Ms. Earnshaw ordered checks back through Januaryof2007 and found more 20. At thatpoint,Ms. EarnshawclosedMr. Plante'saccountand opened a newaccountatthe

Earnshaw's name. checks for the pastyear.There wereseveralchecks on which Ms. Smith hadforgedMs. 19. The following Monday, Ms.Earnshawwent back to the bank and reviewed cancelled

$5,000. had signed Ms. Earnshaw's name to Mr. Plante's checks. She said she had taken about 18. Duringa telephone call onSaturday,February21,2009,Ms. Smith confessed that she

on Mr.Plante'saccountback to Januaryof2008. 17. On the same date, Ms. Earnshawwent back to thebank and orderedcopiesofallchecks

saywhy she was sorry. 16. On Friday,February20, 2009, Ms. Smith left a voicemail that she was sorry but did not p. 4 Page 4of7 requiredto makereasonableeffortstoensurethatherfirmhad in effectmeasuresgiving 36. Ms. Earnshaw,as a solepractitioner,manager,and ownerofher lawpractice,was

Rule 5.3(a)and (b) ResponsibilitiesRegarding Non-Lawyer Assistants

establishesthese violations by clear and convincing evidence: Stipulation,asto the RulesofProfessionalConductthatwereviolated.The Stipulation The Respondentandthe ADO havestipulated,and the Committeeacceptsthe

otheraccounts. accountsand did not implementsafeguardssimilarto those which were inplaceforher 35. Ms. Earnshawdelegatedthe tasksregardingthemaintenanceandhandlingofMr. Plante's

34. Deficiencieshave been found to be isolatedto the Paul Plante accounts.

attached. internalcontrolsover heroperatingaccounts."A copyofMr. Calaman'sauditreportis with NewHampshireSupremeCourtRule50;and she"has implementedreasonable 33. Mr. Calaman found that Ms.Earnshaw maintainsher clienttrustaccountsincompliance

agreeduponauditofMs. Earnshaw'sclienttrustaccountsand fiduciaryaccount. 32. Thereafter,CraigA. Calaman,auditorforthe AttorneyDisciplineOffice,performedan

financialactivityin the PlanteAgency account. situationbecauseEarnshaw will be directlyresponsiblefor all on my inquiriesadequatesteps have been taken to remedy the and Plante arevictimsofSmith'salleged criminalactivity.Based performed,it is believedthatfuturethefts cannotoccur.Both she performingall thefunctionsthat LeslieSmithpreviously maintainingthePaulPlanteagencyaccount.Since she iscurrently assumed allofthe clerical and controlresponsibilitiesinvolvedin In order to achieve this goal, Kate Earnshawhas personally 31. In his report, Mr.Schiffmannoted:

discussescorrectionofexistingprocedures. taken was$134,071.35.The report detailswhy it was possible for thetheftsto occur and 30. Mr. Schiffman'saudit report is dated May18,2009.In the auditor's opinion, the amount

SecretServiceinvestigator. turned over to the Secret Service and afederalprosecutor. Ms.Smith confessedto the 29. Because some ofthechecks were mailed out ofstate,thecriminalinvestigationwas p. 5 Page 5 of7 The Committee found, consistent with the Stipulation, that theRespondentviolated Id existenceof anyaggravatingormitigatingfactorsandwhetherthey affectthebaselinesanction. (2007)); Standards § 3.0.Once thebaselinesanctionisdetermined,theCourtthenlooksto the existenceofaggravatingormitigatingfactors." Id.(quotingDouglas'Case, 155 N.H. 613,621 mentalstate;(c) thepotentialoractualinjurycausedbythe lawyer'smisconduct;and (d) the partanalysisforcourtstoconsiderinimposingsanctions:"(a)thedutyviolated;(b)thelawyer's tothemforguidance. Conner'sCase, 158 N.H. 299,303 (2009).The Standardssetfortha four supporttheCommittee'sconclusion.AlthoughtheCourthasnotadoptedthe Standards, itlooks American BarAssociation'sStandardsforImposingLawyer Sanctions(2005)("Standards") appropriatesanctionin thismatteris aReprimand.Bothcaselawin NewHampshireand the The Committee agreed, consistent with the stipulated recommendation, that the

Earnshaw's conduct,as describedherein,violatedN.H. R. Prof.Conduct 8.4(a). 39. Having found the foregoing violations, there is clear and convincing evidence that Ms.

register which wasmaintainedby Ms. Smith. reconciliations,Ms. Earnshaw occasionallyreviewed thecheck Ms. Smith. When Ms. Smith fellbehind on preparingthe d) Ms. Earnshaw would review a reconciliationstatementpreparedby signatorypower on the accounts, and c) Ms. Earnshaw feltthatit was adequate that she was theonlyone with sourcedocuments relatingto theaccounts; b) Ms. Earnshaw did notreviewthe actual bankstatementsor other thePaul Planteaccounts; a) Ms. Earnshaw did not properlysuperviseMs. Smith'shandlingsof

38. Ms. Earnshaw failedto comply with theaforementionedrequirements,as follows:

assistantwas compatiblewith Ms.Earnshaw'sprofessionalobligationsas a lawyer. required to makereasonableefforts to ensure that theconductofsuch non-lawyer 37. Having directsupervisoryauthorityover hernon-lawyerassistant,Ms. Earnshaw was also

Ms. Earnshaw's professionalobligationsas a lawyer. reasonableassurancethattheconductofhernon-lawyerassistantwas compatiblewith p. 6 Page 6 of7

the Standards is a reprimand under New Hampshire law. 1 The New Hampshireequivalentofa reprimand under the Standards is a public censure, and an admonition under

costs associated with theinvestigationand prosecutionofthis matter.

The partieshavestipulated,and theCommitteeapproves,that theRespondentwill pay all V. COSTS

Earnshaw,for violationsofN.H. Rules Prof. Conduct 5.3(a), 5.3(b) and 8.4(a). For allofthe above reasons, theCommitteeherebyissues a Reprimand to Kathleen A. IV. SANCTION

justify a reduction in the sanction from a Public Censure to a Reprimand. The Committee concurs with the parties that the weightofthe many mitigating factors ofher assistance and theconsequencesthere from. new counsel;her client was fullyreimbursed,and exhibitedremorse for her lack ofsupervision reportthe matterto her client, the Nashua Policeand the ADO; assisted her client in securing Ms. Earnshawhas: no prior record; no dishonest or selfish motive; took immediate steps to self- The Respondent has significantexperiencein the practiceoflaw, an aggravatingfactor.

client.1 dealing with client propertyand causes injury or potential injury to a 4:13 Reprimand is generally appropriate when a lawyer is negligent in

Section 4.1ofthe Standards provides, in pertinent part, as follows: accounts. The actual harm caused to Mr. Plante was the misappropriationof$134,071.75 from his The Respondent'sbreacheswere negligent. obligationsas anattorney. ensure that the conductofher non-lawyerassistantwas compatible with her professional owed to Paul Plante as well as to the legal profession, by failing to make reasonable efforts to dutiesowedto her client, the legalprofession,and the Court. The Respondent violated duties p. 7 Page 7 of7

File Stephen L. Tober, Esquire James L. DeHart, General Counsel Distribution:

Junegi,2010 <tff*t^*cflrfcti^giL^-

last paragraph.

therighttoappealtotheNew HampshireSupremeCourt.SeealsoSupremeCourtRule37(3)(c),

PursuanttoSupremeCourtRule37(A)(III)(dX2)(D)(4)(A),theRespondenthas