George E. Kersey (2004)

2001, the respondent was ordered to turn over his client files and trust period of three months. On September 20,2001, and again on December 19, . we suspended the respondent from the practice of law in New Hampshire for a the contempt. On September 20, 2001, on a petition for reciprocal discipline, Massachusetts was suspended for three months and until he purged himself of Vermont contempt order, the respondent's license to practice law in for willful violations of court orders. In September 1999, based upon the In 1991, the respondent was found to be in contempt of court in Vermont

Professional Conduct 3.4(c) and 5.5(a). The referee recommended disbarment. in contempt of this court and had violated New Hampshire Rules of hearing and found, by clear and convincing evidence, that the respondent was Kersey. We referred the petition to a Judicial Referee (Gray, J.) who held a Conduct (committee) petitioned this court to disbar the respondent, George E. DUGGAN, J. In September 2002, the Committee on Professional

George E. Kersey, by brief and orally, pro se.

professional conduct. . James L. DeHart, of Concord, by brief and orally, for the committee on

No. LD-2002-006 Original

page is: http://www.courts.state.nh:us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 Errors may be reported by E-mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notifY the Reporter, Supreme Court of New well as formal revision before pUblication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

violated Rule 5.5(a). he filed two pleadings with this court in an unrelated matter. This conduct 66 p. 2 2, the respondent continued to practice law, despite his suspension, when in that United States jurisdiction." As we found in Kersey's Case, 147 N.H. at States jurisdiction where doing so violates the regulation of the legal profession Rule 5.5(a) provides that:"A lawyer shall not practice law in a United

his client files. This conduct violated Rule 3.4(c). the respondent"willful[ly] and blatant[ly]" disregarded our orders to turn over that no valid obligation exists." As we found in Kersey's Case, 147 N.H. at 66 p. 2 2, under the rules of a tribunal except for an open refusal based on an assertion Rule 3.4(c) provides that:"A lawyer shall not knowingly disobey an obligation also violated New Hampshire Rules of Professional Conduct 3.4(c) and 5.5(a). Second, the referee found, and we agree, that the respondent's conduct

respondent violated this court's orders and was held in contempt of court. First, as we previously determined in Kersey's Case, 147 N.H. at 663, the

and for violating the New Hampshire Rules of Professional Conduct. recommended that the respondent be disbarred for being in contempt of court based upon the evidence presented." Id. (quotation omitted). Here, the referee whether a reasonable person could reach the same conclusion as the referee (quotation omitted)."We review the findings made by the referee to determine attorney conduct has occurred and, if so, the appropriate sanction." Id. at 136 determine whether, on the facts found, a violation of the rules governing factual findings if supported by the record, we retain the ultimate authority to "In professional conduct matters, although we defer to the referee's

rules governing attorney conduct." Id. (quotation omitted). ultimate authority to determine the appropriate sanction for a violation of the conduct in the future." Id. (quotation and ellipsis omitted)."We retain the bar, and preserve the integrity of the legal profession, and to prevent similar disciplinary power is to protect the public, maintain public confidence in the N.H. 13 p. 2 2, 139 (2003) (quotation omitted). Rather,"[t]he purpose of the court's taken as a mode of inflicting punishment for an offense." Shillen's Case, 149 discipline. Sup. Ct. R. 37 (l)(b) (amended 2003). "Disciplinary action is not conduct that violates the Rules of Professional Conduct is grounds for discipline attorneys." Wehringer's Case, 130 N.H. 707, 718 (1988). Attorney "This court has inherent authority as well as statutory authority to

the appropriate sanction. Kersey's Case, 147 N.H. 659 ( p. 2 2002). contempt and referred the matter to the committee for proceedings concerning to comply with the court orders to turn over his files, we held the respondent in accounts. On May 6,2002, because he continued to practice law and refused p. 3 3

lawyer who has been found in contempt of court. the legislature has also identified disbarment as an appropriate sanction for a such attorney from practice, or may remove the attorney from office." Thus, attorney, and, upon satisfactory evidence of the attorney's guilt, shall suspend shall inquire ... into any charges of ... contempt of court against an We note that RSA p. 3 311:8 (Supp. 2003) provides that:"The supreme court

lawyer has been suspended but, nevertheless, practices law." Id. involving disbarment and violations of prior discipline orders"is one where a Id. § 8.1, at 47. The commentary further notes that the most common case

public, the legal system, or the profession. misconduct that cause injury or potential injury to a client, the intentionally or knowingly engages in further acts of (b) has been suspended for the same or similar misconduct, and

or injury to a client, the public, the legal system, or the profession; disciplinary order and such violation causes injury or potential (a) intentionally or knowingly violates the terms of a prior

Disbarment is generally appropriate when a lawyer:

8.1: the terms of prior disciplinary orders. Id. § 8.0, at 47. According to Section imposed, based upon the application of these factors, when a lawyer violates Section 8.0 of the Standards addresses the appropriate sanction to be

factors." Standards, supra § p. 3 3.0, at 25. by the lawyer's misconduct; and (d) the existence of aggravating or mitigating violated; (b) the lawyer's mental state; (c) the actual or potential injury caused following factors a court should consider in imposing sanctions:"(a) the duty Ct. 67 (2003); Shillen's Case, 149 N.H. at 139. The Standards set forth the guidance. See,~, Feld's Case, 149 N.H. 19,28 (2002), cert. denied, 124 S. ABA Standards for Imposing Lawver Sanctions (1991) (Standards), for In determining the appropriate sanction, we have often relied upon the

that disbarment is the appropriate sanction to be imposed. We agree. before us is the appropriate sanction to be imposed. The committee argues findings are final and not the issue before us. Thus, the only remaining issue Kersey's Case, 1 p. 4 47 N.H. at 662, and will not revisit them now. The contempt are intended to challenge our prior contempt findings, we addressed them in and the validity of this court's contempt orders. To the extent these arguments his Massachusetts suspension, his justification for not turning over the files The respondent makes numerous arguments concerning the validity of 4

NADEAU and DALIANIS, JJ., concurred.

Sup. Ct. R. 37 (16) (amended 2003). including legal fees, incurred in investigating and prosecuting this matter. See disbarred and is ordered to reimburse the committee for all of its expenses, disbarment from the practice of law." Accordingly, the respondent is hereby conduct cannot be overlooked or treated in any manner other than ... [by] issuing such orders but for the entire judicial system as a whole. Such respondent's conduct"is reflective not only of his contempt for the court based on contempt findings. The referee found, and we agree, that the respondent was in contempt of court in his disciplinary case, which itself was client files and for practicing law after being suspended. Id. In sum, the contempt of this court for twice violating orders requiring him to turn over was held in contempt of court in Vermont. He was later found to be in The respondent was originally subject to disciplinary action because he

Accordingly, we conclude that there are no mitigating factors in this case. required to surrender his client files." Kersey's Case, 1 p. 4 47 N.H. at 662-63. belies the respondent's contention that he reasonably believed he was not because, as we previously stated,"[t]he specific language of the December order not required to surrender the files. We find that this is not a mitigating factor belief that the court did not have jurisdiction over the files, and thus he was mitigating). The respondent asserts that another mitigating factor was his 51 (listing forced or compelled restitution as a factor that is not aggravating or protest was a mitigating factor. We disagree. Cf. Standards, supra § 9.4(a), at respondent asserts that the fact that he surrendered the client files under consider mitigating factors. See Wehringer's Case, 130 N.H. at 721. The Before we determine what disciplinary action we will take, we must also