Donald F. King (2005)

consisted of three volumes of materials, including, among other things, the

The Committee thoroughly reviewed the record in this matter which

participate.

and Thomas P. Connair. Nancy R. Hacking and Gretchen Rule Hamel did not

Martin, Richard B. McNamara, David N. Page, Stephen Stepanek, David Cole

Attomey Vice Chair, Toni Gray, Lay Vice Chair, Alan J. Cronheim, James M.

present included: Margaret H. Nelson, Chair and Reporter, Benette Pizzimenti,

On January 18, 2005, the Committee deliberated this mater. Members

to Sup. Ct. R. 37A (1I1)(d)(B).

issuance of the Hearing Panel Report, the parties waived oral argument pursuant

Hearing Panel at the hearing conducted on October 12-13, 2004. Following the

November 3, 2004. The parties presented evidence and argument to the

all the matters set forth in the Notice of Charges as amended by Order dated

with respect to certain facts and rules violations. The Stipulation did not address

counsel for the respondent entered into a Stipulation dated as of October 4, 2004

hearing before a Hearing Panel. Prior to the hearing, Disciplinary Counsel and

This matter comes before the Professional Conduct Committee following a

Introduction

2"Stip." refers to the parties' Stipulation, filed in this matter on October I, 2004. of each page. from depositions, the page numbers cited refer to the bates-stamp number located at the bottom-right corner previously submitted and will be made part of the record at the hearing. With the exception of excerpts I"JS Exh." refers to the"Jointly Submitted Exhibits," a notebook containing 24 exhibits, which has been

3. On August 27,1995, Mrs. Webb died. See Stip. at ~ 3; JS Exh. 10 at 050.

P.A. See Stip. at ~ 2.

046-049. At that time, Mr. King was not employed at Hubbard & Quinn,

Quinn, P.A., in Amherst, New Hampshire. See Stip.2 at ~ 2; JS Exh. 10 at

Wills, which had been drafted by Attorney Thomas S. Quinn, of Hubbard &

2. On May 31,1983, John K. Webb and Ann M. Webb signed their individual

misconduct against Donald F. King. See JS Exhs. 1-8. 1 letters thereafter, John K. Webb made allegations of professional

1. In a sworn letter of complaint dated July 2, 2001, and in supplemental

detailed below:

clear and convincing evidence. The factual findings and rulings of law are

record supports the following factual findings and rulings of the Hearing Panel by

Having reviewed the record, the Committee has determined that the

2004.

Attorney Discipline Office and the Hearing Panel Report dated November 12,

pleadings and correspondence between the respondent, his counsel and the

Proposed Findings of Fact and Rulings of Law and Request for Costs, various

Disciplinary Counsel's letter dated October 5, 2004, Disciplinary Counsel's

2004, Joint Witness List, the Jointly Submitted Exhibits, submitted under cover of

Stipulation, transcript of the hearing before the Hearing Panel on October 12-13, p. 3 . p. 2 {C0115276.1 }

with Mr. King. See Stip. at 1) 7. Ms. Michener took notes during that

8. On February 6, 1996, Mr. Webb and his daughter, Barbara Michener, met

JS Exh. 18 at 48-49.

appropriate probate pleadings with respect to the GE Mutual Funds. See

understood these documents to be necessary for Mr. King to file the

documents relevant to the GE Mutual Funds. See Stip. at 1) 6. Mr. Webb

48-49. He also brought to Mr. King his wife's Death Certificate and

including the original Wills of both himself and his wife. See JS Exh. 18 at

Webb brought Mr. King numerous personal and financial documents,

7. Near the end of 1995, Mr. Webb met with Mr. King. At that time, Mr.

1 at 006,017.

King would be handling this matter for Mr. Webb. See Stip. at 1)5; JS Exh.

the GE Mutual Funds would require a filing in probate court, and that Mr.

6. More specifically, Mr. Quinn advised Mr. Webb that the action related to

Stip. at 1) 4; JS Exh. 1 at 006.

have his Will updated. Mr. King was not present at that meeting. See

Mrs. Webb's estate to go through the probate process and for Mr. Webb to

funds were solely in Mrs. Webb's name. They also discussed the need for

gain access to Mrs. Webb's savings funds in GE Mutual Funds. These

5. At that meeting, Mr. Quinn and Mr. Webb discussed Mr. Webb's need to

Quinn law office. See Stip. at 1) 3; JS Exh. 1 at 003, 006.

4. On October 16, 1995, Mr. Webb met with Mr. Quinn at the Hubbard & p. 4 {C0115276.1 }

See Stip. at,-r 9.

letter further states:

with respect"to matters arising out of the passing of his wife ...." That

letter acknowledges that Mr. King is providing representation for Mr. Webb

Sullivan of Securities Ownership Services on behalf of Mr. Webb. That

11. Thereafter, in a letter dated March 29, 1996, Mr. King wrote to Jennifer

to as"Probate Court"). See Stip at 1]8.

Certificate to the Hillsborough County Probate Court (hereinafter referred

10. On March 8, 1996, Mr. King delivered Mrs. Webb's Will and Death

Mr. King delivers Will and Death Certificate: March 8, 1996

at,-r 7; JS Exh. 12 at 078.

planning. Mr. Webb paid that retainer by check that same date. See Stip.

retainer amount included not only the probate filing but also future estate

9. During that meeting, Mr. King asked for a retainer of $800.00. That

(copy of Ms. Michener's 9/30104 statement at 215-227).

51-52; Exh. 11 (copy of Ms. Michener's hand-written notes at 079-084)

meeting to record Mr. King's instructions and advice. See JS Exh. 18 at p. 4 p. 5 {C0115276.1 }

conversation, Mr. Webb became concerned that Mr. King did not seem to

engaged in conversation with Mr. King about the matter. From that

15. On March 10, 2001, Mr. Webb saw Mr. King at the local grocery store and

to GE. See Stip. at ~ 11; JS Exh. 1 at 007.

assemble the forms for his signature, and Mr. King would then send them " effectuate the transfer of funds. Mr. Webb understood that Mr. King would

14. On that same date, Mr. Webb provided Mr. King with the relevant forms to

that the owner's estate was"being probated." JS Exh. 13 at 214.

5, 2001, Mr. Webb had made a"recent inquiry" with GE, and informed GE

JS Exh. 13 at 214 (emphasis in original). Clearly, therefore, as of January

estate is being probated? single account upon the owner's death if the What is reguired to transfer the registration of a

Mutual Funds. inquiry regarding mutual fund account(s) with GE The following information is in response to your recent

Dear Mr. Webb,

January 5, 2001, begins as follows:

See JS Exh. 13 at 010-011, 214. Notably, one of the GE letters dated

13. By letters dated January 5, 2001, GE responded to Mr. Webb's inquiries.

37,40.

of transferring Ms. Webb's GE Funds. See JS Exh. 1 at 004; Exh. 18 at

12. Shortly thereafter, Mr. Webb made an inquiry to GE regarding the process

Mr. King says"probate complete": December 2000 p. 5 p. 6 {C0115276.1 }

Court to obtain a certified copy for use with the GE Mutual Fund at a cost

mail. See JS Exh. 1 at 004,007. Mr. Webb then went to the Probate

20. On March 27, 2001, Mr. Webb's Appointment as Executor arrived in the

on that date. See JS Exh. 1 at 004, 007.

Mrs. Webb's Estate. The filing fee was $130.00, which he paid by check

19. On March 14, 2001, Mr. Webb filed a request to be appointed Executor for

Exh. 1 at 007; Exh. 18 at 25-30.

She told him the process should take no longer than two weeks. See JS

complete the probate and effectuate the transfer of GE Funds himself.

18. The Probate Court employee further explained to Mr. Webb how to

filed." See JS Exh. 1 at 004,007; Exh. 18 at 80-81.

he remembered it containing a handwritten note in pencil stating,"To be

Probate Court file. Mr. Webb remembered seeing a copy of the Will, and

17. Mr. Webb went to the Probate Court and reviewed the contents of the

Death Certificate and Will. See JS Exh. 1 at 004, 007; Exh. 18 at 25-26.

clerk, the only documents that the Probate Court had received were the

him that there was never a probate filing in his case. According to the

to the status of his case. See Stip. at ~ 13. The clerk ("Janet") informed

16. On March 12, 2001, Mr. Webb telephoned the Probate Court to inquire as

Mr. Webb inquires with Probate Court: March 12,2001

Stip. at ~ 12; JS Exh. 1 at 007.

know that there was paperwork that needed to be forwarded to GE. See p. 7 {C011 5276.1 }

084.

Webb's probate matter as involving a"simple will." See JS Exh. 11 at

with Mr. Webb and Ms. Michener, Mr. King, himself, described Ms.

Bonenfant's deposition.). Notably, during his February 6,1996, meeting

(This pamphlet is not in the Exhibits, but it is at "Exhibit A" to Ms.

two scenarios that renders the "probate process ... much simpler...."

Webb's scenario (Le., the surviving spouse and sole beneficiary) as one of

"Administering An Estate." That pamphlet specifically describes Mr.

Court website contains a general information pamphlet entitled

spouse and sole beneficiary. Currently, the New Hampshire Probate

matter is not surprising in light of the fact that Mr. Webb was the surviving

23. The ease with which Mr. Webb handled his deceased wife's probate

fourteen (14) working days. See Stip. at,-r 16; JS Exh. 1 at 005,007.

transaction, including the probate filing, took a total of approximately

access to the second installment arrived within a day or two. Thus, the

Webb's account arrived in the mail. The paperwork granting Mr. Webb

22. On or about April 3, 2001, the first of two installments of funds from Mrs.

at 005,007.

the GE application for recovery of the funds. See Stip. at,-r 15; JS Exh. 1

21. On March 28, 2001, Mr. Webb signed, notarized, and sent by certified mail

JS Exh. 1 at 004,007.

of $5.00. See Stip. at,-r 14 (note that date in Stip for this event is 3/14/01); p. 8 {C0115276.1 }

plus interest). See Stip. at'1120; JS Exh. 13.

judgment against Hubbard & Quinn in the amount of $1250.00 (retainer

28. On June 7, 2001, Milford District Court (Drescher, J.) entered a default

documents. See JS Exh. 1 at 017.

from Mr. King"shortly," and Mr. King would forward him the requested'

at 017. Mr. Quinn indicated in his letter both that Mr. Webb would hear

plus $75 in interest, calculated by Mr. Quinn). See Stip. at '1119; JS Exh. 1

with an $875.00 check ($800 retainer, which was still in the trust account,

27. On May 17, 2001, Mr. Webb received a letter of apology from Mr. Quinn

143. See Stip. at '1118; JS Exh. 1 at 014.

interest from Mr. King. Milford District Court docketed this case as 01-SC-

26. On May 1, 2001, Mr. Webb filed an action to recover his retainer plus

on Mr. Webb's behalf. See Stip. at '1117; JS Exh. 1 at 016.

Mutual Funds; and (d) copies of all documents filed by Mr. King or his firm

(c) all paperwork related to the proposed probate filing and transfer of GE

originals of his Will and that of his wife; (b) Mrs. Webb's Death Certificate;

25. In that letter, Mr. Webb specifically requested the following: (a) the

return of his file. See Stip. at '1117; JS Exh. 1 at 016.

Mr. King received on April 24, 2001), in which Mr. Webb requested a

24. On April 19, 2001, Mr. Webb sent Mr. King a letter via certified mail (which

Mr. Webb begins effort to retrieve file: April 19, 2001 p. 8 p. 9 {C0115276.1 }

again requesting the Wills. That letter states:

33. By letter dated September 4, 2002, Mr. Webb wrote to Hubbard & Quinn

at 021; Exh. 3 at 022,023.

Wills. The packet included only a copy of Ms. Webb's Will. See JS Exh. 2

32. That August 2 packet did not include Mr. Webb's or Ms. Webb's original

file. See Stip. at 1]22; JS Exh. 10 at 045.

original request for his file), Mr. King mailed Mr. Webb documents from his

31. On or about August 2,2001, (more than three months after Mr. Webb's

Mr. King forwards portion of file: August 2. 2001

return of all documents in his file. See Stip. at 1]21; JS Exh. 10 at 051.

30. On June 17, 2001, Mr. Webb wrote a letter to Mr. King again requesting

Quinn. See Stip. at 1]20.

12 at 054. Mr. Webb returned the $875 check he had received from Mr.

29. Mr. King paid this judgment by cashier's check to Mr. Webb. See JS Exh. p. 9 p. 10 {C0115276.1 }

file anything further.

told him,"in either late 1998 or early 1999," that Mr. King did not need to

36. In that same letter, Mr. King claimed that a clerk at the probate court again

See Stip. at iJ23; JS Exh. 9 at 158 (emphasis in original).

letter, Mr. King wrote:

Committee dated August 2, 2001. See Stip. at 11 23; JS Exh. 9. In that

Professional Conduct Committee, Mr. King drafted a letter to the

35. In response to Mr. Webb's July 2, 2001, letter of complaint to the

Will.

King's inaction, Mr. Webb decided to protect himself by executing a new

receive even a copy of his own Will. See JS Exh. 3 at 022. In light of Mr.

34. Mr. King never returned the original Wills to Mr. Webb. Mr. Webb did not

See JS Exh. 3 at 023. p. 10 p. 11 {C0115276.1 }

employee named "Janice Morand." See JS Exh. 21 at 18, 20. Bonenfant knows the initials to be that of a former Probate Court acronym. Those initials were"JWM." See JS Exh. 21 at 18. Ms. h. The clerk also placed her own initials under the"ADM TBF"

pencil at the time that the Will was filed. g. That acronym would most likely have been placed on the Will in

were to be filed regarding this will." See JS Exh. 21 at 36. f. "Administration To Be Filed" means"that administration documents

21 at 19. e."ADM TBF" stands for "Administration To Be Filed." See JS Exh.

not complete to be processed." See JS Exh. 21 at 35. d. An "Uncompleted Will" means that"When this will was filed, it was

JS Exh. 21 at 19. JS Exh. 21 at 36."UNC WILL" stands for "Uncompleted Will." See c. Those initials are official acronyms within the Probate Court. See

"ADM TBF." See JS Exh. 21 at 18-19; Exh. 24 at 200. b. The clerk initialed Ms. Webb's Will as follows:"UNC WILL" and

a. On May 8,1996, Ms. Webb's Will and Death Certificate were filed.

knowledge, that the following events transpired:

Ms. Bonenfant reviewed the file and concluded, to the best of her

personal knowledge of Ms. Webb's file. See JS Exh. 21 at 14. However,

38. Kimberly Bonenfant, the Deputy Register of Probate Court, had no

Testimony of Kimberly Bonenfant: Deputy Register

letter is located in JS Exh. 10 at 058-063.

37. The unfiled draft of the Petition to which Mr. King referred in his August 2

See Stip. at ~ 24; JS Exh. 9 at 159.

in"late 1998 or early 1999" on the telephone. See JS Exh. 9.

needed to be filed at the time he filed in the Will in March 1996, and again,

Probate Court. Mr. King claims that a clerk told him"nothing further"

he was told "nothing more needed to be filed" not once, but twice, by the

42. Mr. King's claims are even more doubtful in light of Mr. King's claim that

21 at 45-46.

attorney under circumstances such as Mr. King describes. See JS Exh.

Probate Court policy for a clerk to give legal advice, particularly to an

According to Ms. Bonenfant, it would be a serious violation of internal

41. There is a further reason that Mr. King's version of events is doubtful.

expected that further paperwork would be filed. See JS Exh. 21 at 36; 40.

40. According to Ms. Bonenfant, the markings in the file indicate that the cle~

receipt for Ms. Webb's Will on that date. See JS Exh. 10 at 069.

further corroborated by the fact that Ms. Morand also signed Mr. King's

39. The fact that Janice Morand interacted with Mr. King on March 8,1996, is

at 47. Probate Court closed the file on March 17, 1997. See JS Exh. 21 on the file for one year, the judge"accepted" the Will and the documents. See JS Exh. 21 at 37. Because there was no action nothing further was filed until 2001, when Mr. Webb filed his own k. After the March 8, 1996 filing of the Will and Death Certificate,

JS Exh. 21 at 43. the individual who indisputably filed the Will on March 8, 1996. See j. It is most likely that the clerk leamed this information from Mr. King,

paperwork would be filed. See JS Exh. 21 at 36; 40. Webb's Will, the clerk would have understood that administration i. The acronym"ADM TBF" indicates that, upon receipt of Ms. p. 12 p. 13 {C0115276.1 }

relying on clerks at the Probate Court for information), Mr. Webb could

(e.g., that he was unfamiliar with the probate process and was purportedly

46. Had Mr. King given Mr. Webb more specific information about the matter,

obtain an update from Mr. King.

status of his matter despite his repeated attempts from 1996-2001 to

regarding the matter. Mr. King failed to properly update Mr. Webb on the

Mutual Funds, Mr. King failed to keep Mr. Webb reasonably informed

45. By failing to explain to Mr. Webb the status of the transfer of his wife's GE

Rule 1.4: Failure to Properly Communicate

violation of N.H. R. Prof. Conduct 1.3(a). See Stip at ~ 25.

convincing evidence that Mr. King's failure in this regard constitutes a

Based upon all of the aforementioned facts, there exists clear and

promptness and diligence in representing Mr. Webb. See Stip at ~ 25.

Mutual Funds, as discussed above, Mr. King failed to act with reasonable

Mrs. Webb's estate and to effectuate the transfer of Mrs. Webb's GE

44. By failing both to file the appropriate paperwork in Probate Court related to

Rule 1.1: Failing to Provide Competent Representation

been filed.

would have told Mr. King that the case was closed, as no petition had ever

the court closed Ms. Webb's file, as Mr. King claims, the court employee

43. Had Mr. King spoken to a Probate Court employee in 1998 or 1999, after p. 13 p. 14 {C0115276.1 }

file.").

client, and upon request, an attorney must provide the client with the

Averill v. Cox, 145 N.H. 328, 339 (2000) ('TAl client's file belongs to the

promptly constitutes a violation of N.H. R. Prof. Conduct 1.16(d). See

convincing evidence that Mr. King's failure to retum Mr. Webb's file

50. Based upon all of the aforementioned facts, there exists clear and

substantive legal matter in a timely fashion.

particularly troublesome in light of Mr. King's failure to handle Mr. Webb's

file. Mr. King's delay of over three months in returning Mr. Webb's file is

more than three months to respond to Mr. Webb's original request for his

Webb's Will) on or about August 2, 2001. Mr. King, therefore, waited

49. Mr. King sent Mr. Webb a copy of his file (which did not include Mr.

2001 request.

48. Mr. King failed to return Mr. Webb's file promptly after Mr. Webb's April 19,

violation of N.H. R. Prof. Conduct 1.4(a)-(c).

convincing evidence that Mr. King's failure in this regard constitutes a

47. Based upon all of the aforementioned facts, there exists clear and

wife's probate matter and recovered the funds much sooner than he did.

in Mr. King's representation, he likely would have completed his deceased

representation. Had Mr. Webb inquired with the Probate Court earlier on

have inquired with the Probate Court earlier on in Mr. King's p. 14 p. 15 {C0115276.1 }

of a violation of Rule 8.4(a). See Stip at,-r 5.

aforementioned Rules, there is necessarily clear and convincing evidence

54. Because there exists clear and convincing evidence of violation of the

not found.

Webb about them. Accordingly, Violations of Rule 8.1 (a) and 8.4(c) are

Attorney King fabricated these conversations or knowingly deceived Mr.

staff is implausible, there is not clear and convincing evidence that

53. While Mr. King's account of his communication with the Probate Court

file "nothing" more than Mrs. Webb's Will and Death Certificate.

Probate Court told Mr. King on two separate occasions that he needed to

Administration on behalf of Mrs. Webb but for the fact that a clerk of

Committee, Mr. King claimed that he would have filed a Petition for Estate

52. In Mr. King's August 2, 2001, letter to the Professional Conduct

King.

1.15(d). To date, Mr. Webb still has not received his original Will from Mr.'

Will to Mr. Webb constitutes a further violation of N.H. R. Prof. Conduct

convincing evidence that Mr. King's failure to return Mr. Webb's original

51. Based upon all of the aforementioned facts, there exist clear and p. 15 p. 16 {C0115276.1 }

is not intended to be punishment." /d.

in the future. See, e.g., Fe/d's Case, 149 N.H. 19, 28 (2002). "Lawyer discipline

(3) preserve the integrity of the legal profession; and (4) prevent similar conduct

are four-fold: (1) protect the public; (2) maintain the public confidence in the bar;

2. Under New Hampshire case law, the goals of attorney discipline

and the goals of attorney discipline.

1. A one-year suspension is consistent with New Hampshire case law

of the stipulation as follows:

with the recommendation of the Hearing Panel. The Committee finds the terms

has"considered them when imposing sanctions.") The sanction is consistent

that, although the Court has never formally adopted these Standards, the Court

Sanctions (1991). See, e.g., Shi/len's Case, 149 N.H. 132, 139 (2003) (noting

the ABA Center for Professional Responsibility, Standards for Imposing Lawyer

e.g., Fe/d's Case, 149 N.H. 19,28 (2002). This sanction is also in accord with

attorney discipline as described by the New Hampshire Supreme Court. See,

be a one year suspension. This sanction is in accord with the purposes of

Conduct Committee concludes that the appropriate discipline in this matter would

Having made the aforementioned findings and rulings, the Professional

N.H. Sup. Ct. R. 37(19).

Discipline Office in the investigation and prosecution of this matter. See

55. Mr. King is ordered to pay the expenses incurred by the Attorney

attorney discipline as well as other New Hampshire cases.

6. In sum, a one-year suspension is consistent with the purposes of

Mr. King, that a harsh sanction is meted out for misconduct of this magnitude.

misconduct in the future by sending a strong message to attorneys, in addition to

5. Finally, a one-year suspension will help to prevent similar

was"persistent and repetitive." This conduct deserves a significant sanction.

Panel found, Mr. King's neglect of his elderly client who had recently lost his wife

in the Bar and preserve the integrity of the legal profession. As the Hearing

4. Second, a one-year suspension will promote both public confidence

King seeks reinstatement to the Bar. N.H. Sup. Ct. R. 37(14)(b).

notified and have an opportunity to respond at such time in the future that Mr.

practice of law for a significant period of time. Additionally, the public will be

discipline. First, the public is protected by the removal of Mr. King from the

3. A one-year suspension addresses the purposes of attorney