Lynn D. Morse (2010)

Landya B. McCafferty

No. LD-2009-006

Professional Conduct Committee

I. Facts

Lynn D. Morse ___________________________

Morse has stipulated to, and we accept, the following facts. See

that the respondent be disbarred. Lynn D. Morse, be suspended from the practice of law for two years. We order Conduct Committee (PCC) filed a petition recommending that the respondent, executrix. Mize resides in California. DUGGAN, J. On September 14, 2009, the Supreme Court Professional valued at $461,500. In her will, McInnes named her niece, Ruth Ann Mize, as guardianship action. On September 12, 1998, McInnes died. Her estate was licensed in New Hampshire since 1972, represented Bertha McInnes in a Case, 158 N.H. 299, 300 (2009); Sup. Ct. R. 37A(III)(c)(5). Morse, an attorney

professional conduct committee.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as contempt on the condition that she file the accounting no later than May 1, p. 2 failure to timely file the second accounting, but did not issue a finding of The court granted most of the petitions. The court cited Mize for her

C. The Second Accounting

had prepared the second accounting for Mize’s signature. Skinner, Inc. which is awaiting sale at auction.” Morse also claimed that he B. The First Accounting the final accounting; and (3) “[t]here is one antique item in the possession of it owns certain shares of Avaya, Inc., common stock” that must be sold before 2 to complete tax returns for the estate; (2) “[t]he Estate has recently learned that estate was “complex . . . with a number of assets” so he needed additional time petitions to extend the deadline. At various times, Morse claimed that: (1) the meet this deadline, and, over a period of more than two years, filed twelve The second accounting was due on November 24, 2000. Morse failed to

distributions to the three residuary legatees. deadline, Morse filed the first accounting and a petition to make interim petitions. Finally, on June 23, 2000, approximately seven months after the “additional time to complete” the first accounting. The court granted these property assets that have been sold or transferred” and that he needed deadline, claiming that “[t]his is a complex Estate with a number of personal to file the accounting within thirty days. Morse filed two petitions to extend the default fee, and warned Mize that the court would issue a citation if she failed February 23, 2000, the court placed the case in default, assessed a $25.00 A. The Inventory Morse also failed to file the first accounting by November 24, 1999. On

months after the first deadline, Morse filed the inventory. court granted these petitions. Finally, in September 1999, approximately seven . . . has been completed and [Mize] receives the guardianship Estate.” The the inventory “until the final account in the Guardianship of Bertha McInnes petitions to extend the deadline, alleging each time that he could not complete Morse failed to file the inventory by the court’s deadline. He filed four

for the estate. required Morse to file a yearly accounting until he completed a final accounting February 21, 1999, and an accounting by November 24, 1999. The court On November 25, 1998, the court ordered Morse to file an estate inventory by The court approved both the petition and a bond in the amount of $350,000. a petition for estate administration in the Rockingham County Probate Court. On September 22, 1998, Morse filed an appearance on behalf of Mize and part: p. 3 Mize also wrote an undated letter to Morse, which stated, in relevant

the final payments to those entitled. Please advise me what I need to do to finish this long process and make

this before you meet with [Morse]. am sending you this letter, overnight, in the hopes that you will receive It is my understanding that he is to meet with you on Friday, May 23. I rd

papers never arrived. the papers to me, to arrive at my home on Wednesday, May 21. The st anything. He said he hadn’t gotten it finished and promised to overnight Monday of this week, I called his office to see why I hadn’t received told me that he would be sending me papers that I needed to sign. On would have everything wrapped up by the deadline you have set. He also I called [Morse] as soon as I got your notice. He assured me that he

carried out. . . . 90, and 91. They have looked to me to see that my aunt’s will would be recipients of the bulk of the Estate are in the later years of their lives, 84, When I received your order . . . I was embarrassed and angry. The three

to me that 5 years is much too long for an Estate to be settled. for me to make numerous calls until he is in and available. . . . It seems settle these matters. [Morse] never returns my calls, making it necessary It has been 5 long years of numerous phone calls and letters trying to

Morse assured me that he would handle the details to settle the Estate.

part: Mize wrote a letter to the court, dated May 21, 2003, stating, in relevant

postponements shall issue.” finding is entered nor sanction is presently imposed. . . . No further “assurance that he will file a final account no later than May 23, 2003, no days later, the court issued an order stating that, based upon Morse’s accounting. The court later continued the hearing to April 21, 2003. Four to personally appear and explain why she had failed to file the second second accounting, and scheduled a hearing for April 7, 2003, requiring Mize February 10, 2003, the court notified Mize that Morse had failed to file the extend the deadline but prohibited any further extensions. By order dated 2002. On November 25, 2002, the court granted Morse’s eleventh petition to attorney has not reasonably responded. . . . [Morse previously] took

p. 4 court seemed reasonable. The court does not apprehend why her has prepared and forwarded to her. The questions she detailed to the would like to have clarified before she executes documentation that he has attempted to contact him to secure answers to questions that she is the result of her attorney’s failure to discharge his duties to her. She Mize reported that her non-compliance with the April 25, 2003 order . . .

stated, in relevant part: June 23 hearing. The court issued an order the day after the hearing, which on a vacation. However, contrary to Morse’s expectations, Mize appeared at the that, based upon his submissions, the court would not hold a hearing, and left signed original to the court. Morse paid a $50.00 citation fee, and anticipated court on June 23, 2003, and expressed his belief that Mize would send the Morse sent a proposed second accounting to Mize. He sent a copy to the

for the failure and neglect to comply with” the court’s order. why he/she should not be held in contempt of court and punished accordingly 2003, the court ordered Mize to personally appear at a hearing to “show cause Morse failed to file the accounting by May 23, 2003, and, on June 12,

I am expecting to hear from you immediately, upon receipt of this letter.

this Estate? . . . approved the filing? What, if anything, is preventing the final closure of haven’t. If they have been filed, when were they filed and has the State immediately. If the taxes have not been filed, please explain why they am requesting that I be completely informed of the status of this file By this letter and a copy being sent to the Rockingham Probate Court, I

age. . . . the three women remaining who benefit from this Estate, are of advanced to receive an inheritance from this Estate has already passed away and However, I have made you aware of my concern that one uncle who was process of settling this Estate, including your losing your receptionist.

I realize there have been some circumstances that have slowed down the

taxes on the McInnes Estate the following Monday. . . . When I spoke with you last, you told me that you would be filing the final

response to any of our messages.

at have answering services if we are busy or away, we have had no you return our calls and while all of the numbers that you can reach us to reach you by phone, to no avail. We have left messages asking that [B]oth my husband and I have tried repeatedly over the past four months in August 2004. p. 5 2001. Attorney Boesch finally resolved the outstanding tax issues with the IRS assessed the estate penalties and late interest for tax years 1999, 2000, and refund for McInnes’s personal tax return because it was filed too late. The IRS necessary tax returns from Attorney Boesch, the IRS declined to issue a $579 that no tax returns had been filed for McInnes or the estate. After receiving the Aeschliman, contacted the Internal Revenue Service (IRS) and was informed 2003. Attorney William S. Boesch, also of Robinson, Boesch, Sennott & Attorney Sennott filed a final accounting for the estate on October 30,

estate. However, the estate file from Morse contained no executed tax returns. accounting in which he stated that he prepared state and federal taxes for the $15,000.00.” Morse submitted a legal bill to the estate for the second from the State of New Hampshire, which he estimates may be in excess of that Morse “is still awaiting tax refunds from the Internal Revenue Service and the tax returns. In a letter to the estate’s legatees, Tucker’s paralegal wrote After Mize terminated him, Morse failed to disclose that he had not filed

1.5 hours on this return, at a rate of $120 per hour. April 15, 1999, stated “Prepare 1998 Fm 1040,” and indicated that he spent Morse attached his legal bill for the first account; a time entry in the bill, dated refunds from the Internal Revenue Service.” As an addendum to this account, refund. In a letter to the court, Morse stated that the Estate was “awaiting filed tax returns and that the estate could expect to receive a significant tax year of McInnes’s life and for her estate. Morse also informed Mize that he had indicated that he had filed all federal and state income tax returns for the last In the proposed second accounting that Morse submitted to the court, he

D. Tax Returns

Robinson, Boesch, Sennott & Aeschliman, P.A., to represent the estate. court. Shortly thereafter, Mize retained Attorney Andrea L. Sennott, of second accounting prepared by Morse; both requests were granted by the accounting and for an extension of time to finalize the estate, enclosing the estate. On July 18, Attorney Tucker filed a motion to accept interim Mize terminated Morse and hired Attorney Charles F. Tucker to represent the The court ordered Mize to submit a final account no later than July 31, 2003.

final account. would be able to readily comply with the May 23, 2003 deadline for a responsibility for the delayed administration and gave assurance that he p. 6 II. Procedural History

fees to successor counsel, in addition to fees paid to Morse. to adequately close out the estate, it incurred approximately $8,000 in legal The estate was closed in March 2004, and, as a result of Morse’s failure he violated the following New Hampshire Rules of Professional Conduct: 1.1 from the practice of law, with conditions for reinstatement. It concluded that The Hearing Panel recommended that Morse be suspended for two years

notify successor counsel of the letter. to voice his disagreement with the adjustment, Morse failed to respond or to based on its file. Although the letter stated that Morse had until November 17 had failed to send the requested documentation, it made an audit adjustment Morse. Morse received another letter from the DRA informing him that, because he hearing, disciplinary counsel argued that the Hearing Panel should disbar to process a tax return it had received for the McInnes estate. Subsequently, he would have filed the tax returns had Mize not terminated him. At the Department of Revenue Administration (DRA) asked for additional information the estate that contained handwritten entries. He explained at the hearing that 6 In a letter to Morse dated September 5, 2003, the New Hampshire before the Panel, he disclosed for the first time a set of unfiled tax returns for for Mize’s signature and that he “retained copies for [his] file,” at the hearing 15, 2008. Although Morse initially claimed that he had prepared the returns with respect to the estate’s tax returns. A Hearing Panel was appointed on May successor counsel in a timely fashion, and made false assertions to the court complete the estate administration and provide a copy of the estate file to Disciplinary counsel filed charges against Morse, alleging that he failed to Mize filed a complaint against Morse with the Attorney Discipline Office.

Three days later, Morse transferred the file.

he’s out of paper, the copier isn’t working, or one excuse after another. him to pick it up and he calls and cancels at the last minute because hasn’t gotten the file to us. I’ve tried daily. I’ve made appointments with It is with much regret that I have to inform you that . . . [Morse] still

paralegal sent an email to Mize in which she stated, in part: receiving assurances from Morse that he would transfer the file, Sennott’s Mize’s new attorney. On October 3, after making repeated requests, and After June 23, 2003, Morse agreed to transfer the file for the estate to

D. The File Transfer p. 7 “misapprehended . . . critical legal principles” and that, in light of those [Standards injuries “did not rise to the level of ‘serious’ injury as described in the caused emotional and financial injuries to his client, it determined that those with any intent to benefit himself.” Although the PCC concluded that Morse “there is no evidence that he acted with any intent to do harm to anyone or subsequent counsel.” The PCC found that while Morse was grossly negligent, client’s case to the client and the court, and did not cooperate promptly with client, the court and his profession[,] . . . misrepresented the status of his for reinstatement. The PCC determined that Morse “violated duties to his recommended a two-year suspension from the practice of law with conditions sanction, and argued that Morse should be disbarred. The PCC, however, Disciplinary counsel requested oral argument before the PCC on the Disciplinary counsel moved to reconsider, arguing that the PCC

[the PCC] found no basis for inconsistently imposing . . . disbarment.” considering “other cases in which similar circumstances were presented . . . community and has practiced law for over thirty years; and (4) after no “pattern of misconduct”; (3) Morse has a positive reputation in the disbarment” because: (1) Morse did not act with a selfish motive; (2) there was Panel, the PCC “found an insufficient basis for elevating the sanction to considering the aggravating and mitigating factors relied upon by the Hearing determined that the baseline sanction for Morse was suspension. After

].” Accordingly, relying upon section 6.12 of the Standards, the PCC

“remorse and regret for his professional failings.” community and by people who have worked for him;” and (3) that he showed Morse lacked a selfish motive; (2) that he had a good reputation “in his Hearing Panel determined that the following were mitigating factors: (1) that practice of law; and (6) that he was indifferent to making restitution. The assets from the estate”; (5) that Morse had substantial experience in the were vulnerable because they were “elderly and/or infirm and in need of the acknowledge the wrongful nature of his conduct; (4) that Mize and the legatees other deceptive practices during the disciplinary process; (3) that he refused to case; (2) that Morse submitted false evidence and statements, and committed case,” and for which Morse was disciplined while representing the estate in this disciplinary offense, which “bore marked similarities to the violations in this The Hearing Panel found the following aggravating factors: (1) a prior

(hereafter Standards). upon Section 6.12 of the ABA Standards for Imposing Lawyer Sanctions (1992) concluded that “suspension was the baseline sanction in this case,” relying violations of Rules 3.3(1) and 8.4(c) were the most serious. The Hearing Panel Tribunal); and 8.4(c) (Dishonesty). The Hearing Panel determined that the (Competence); 1.3 (Diligence);1.16(d) (Return of the File); 3.3 (1) (Candor to the which may be one of intent, knowledge, or negligence. Grew’s Case p. 8 Next, we consider Morse’s mental state at the time of his violations,

The Standards

were the most serious violations. We agree. misrepresentations to the court and to Mize with respect to the tax returns We first review the duties that Morse violated. According to the PCC, the

exercise in the situation.” Standards, supra at 9. By contrast, “[i]ntent is the failure is a deviation from the standard of care that a reasonable lawyer would substantial risk that circumstances exist or that a result will follow, which

gross negligence. We disagree. Wyatt’s Case, 159 N.H. at 307. The PCC concluded that Morse acted with pressures that could potentially have hindered his judgment, is relevant. We look to the Standards 361, 366 (2007). The volitional nature of the acts, and not the external

(quotation omitted). for the most serious misconduct.” Wyatt’s Case, 159 N.H. 285, 306 (2009) violations; it might well be and generally should be greater than the sanction III. Analysis the sanction for the most serious instance of misconduct among a number of misconduct charges, “the sanction imposed should at least be consistent with mitigating factors on the ultimate sanction. Id. Where there are multiple determining the sanction, we then consider the effect of any aggravating or identify the baseline sanction. Conner’s Case, 158 N.H. at 303. After Standards, supra § 3.0. We first categorize the respondent’s misconduct and existence of aggravating or mitigating factors. Conner’s Case, 158 N.H. at 303; potential or actual injury caused by the lawyer’s misconduct; and (d) the imposing sanctions: (a) the duty violated; (b) the lawyer’s mental state; (c) the of the rules governing attorney conduct. Conner’s Case We retain the ultimate authority to determine the sanction for a violation 613, 621 (2007). Under the Standards, we consider the following factors when for guidance. See Douglas’ Case, 156 N.H.

152 N.H. 503, 513 (2005). impose must take into account the severity of the misconduct. Coffey’s Case, own facts and circumstances in deciding the sanction. Id. The sanction we and preventing similar conduct in the future. Id. We consider the case on its public confidence in the bar, preserving the integrity of the legal profession, focus not on punishing the offender, but on protecting the public, maintaining When determining whether to impose the ultimate sanction of disbarment, we

motion, but voted to reaffirm its previous decision. principles, disbarment was the appropriate sanction. The PCC granted that material information is improperly being withheld, and takes no remedial

p. 9 statements or documents are being submitted to the court or that Suspension is generally appropriate when a lawyer knows that false

Sections 6.11 and 6.12 of the Standards

significant adverse effect on the legal proceeding. potentially serious injury to a party, or causes a significant or potentially improperly withholds material information, and causes serious or deceive the court, makes a false statement, submits a false document, or Disbarment is generally appropriate when a lawyer, with the intent to

For these reasons, we conclude that Morse’s actions caused serious injury. on the legal profession than a lie.” Young’s Case, 154 N.H. 359, 369 (2006). profession; as we have stated, “no single transgression reflects more negatively the tribunal and to Mize caused great harm to the court, his client, and to the time it took to close the estate was particularly harmful. Finally, Morse’s lies to misconduct. Because both Mize and the legatees were elderly, the length of matter” and stated that she suffered emotional stress as a result of Morse’s time. In fact, Mize made “several trips to the east coast[ ] specifically for this on June 23, 2003, because of Morse’s failure to file the second accounting on 1999, 2000, and 2001. The estate paid $1,849.68 for Mize to appear in person conduct. The Standards more than three years late, and assessed penalties and interest for tax years We next consider the actual or potential injury flowing from Morse’s $579 refund because the tax return for the last year of McInnes’s life was filed incomplete work with respect to the tax returns. The IRS declined to issue a legal fees to successor counsel, in addition to fees paid to Morse for his Mize, the estate, and its legatees. The estate paid approximately $8,000 in disagree. At a minimum, Morse’s misconduct caused substantial harm to “did not rise to the level of ‘serious’ injury as described in the Standards.” We emotional and financial injuries to his client, it determined that those injuries accomplish a particular result.” Standards supra at 9. Although the PCC acknowledged that Morse’s actions caused circumstances of the conduct but without the conscious objective or purpose to level of injury can range from ‘serious’ injury to ‘little or no’ injury.” Standards, system, or the profession which results from a lawyer’s misconduct.” Id. “The

these false statements. See Conner’s Case, 158 N.H. at 304. or to benefit himself, we conclude that he acted intentionally when he made the PCC concluded, Morse may not have acted with an intent to harm anyone court and to Mize, he knew that he had not filed the tax returns. Although, as Here, Morse admitted that, when he submitted the second accounting to the

“[k]nowledge is the conscious awareness of the nature or attendant conscious objective or purpose to accomplish a particular result,” and p. 10 BRODERICK, C.J., and DALIANIS, HICKS and CONBOY, J J., concurred.

So ordered

this case. Sup. Ct. R. for all expenses incurred in the investigation and enforcement of discipline in sanction, and order the respondent to reimburse the attorney discipline system Based upon the above, we find that disbarment is the appropriate sanction than disbarment. See 10

restitution. See 37 (19). (5) Morse’s substantial legal experience; and (6) his indifference to making wrongful nature of his conduct; (4) the vulnerability of Mize and the legatees; practices during the disciplinary process; (3) his refusal to acknowledge the offense; (2) his submission of false evidence and statements and deceptive found the following aggravating factors: (1) Morse’s prior, similar disciplinary Case However, we conclude that Morse’s deliberate lies require no less a, 141 N.H. 1, 8 (1996). Finally, we consider the aggravating and mitigating factors. The PCC disbarment has been imposed for similar misconduct. See, e.g., Basbanes’ integrity of the legal profession.” Wyatt’s Case, 159 N.H. at 309. Moreover, suspension would be “insufficient to protect the public and preserve the both the aggravating and mitigating factors, we conclude that the sanction of 155 N.H. 128, 131 (2007) (citation and quotation omitted). Having considered and requires an unswerving allegiance to honesty and integrity.” Bosse’s Case, responsibilities of truth, candor and honesty. Lawyering involves a public trust privilege of practicing law does not come without the concomitant “attorney misconduct involving dishonesty justifies disbarment”). “The

§ 9.32 (b), (g), (l). We also agree that these mitigating factors apply. his employees; and (3) showed remorse and regret. See Standards, supra lacked a selfish motive; (2) had a good reputation in the community and among aggravating factors apply. As mitigating factors, the PCC found that Morse: (1)

Standards, supra § 9.22 (a), (e)-(j). We agree that these

Morse caused serious injury to Mize, the estate, and its legatees. See

omitted). We conclude that the baseline sanction is disbarment. of our judicial system.” Kalil’s Case, 146 N.H. 466, 467 (2001) (quotation judges to rely with certainty upon the word of attorneys forms the very bedrock fact to a tribunal. See N.H. R. Prof. Conduct 3.3(a)(1). “The confidence of the court, attorneys are prohibited from making false statements of material Case, 158 N.H. at 304. He lied to his client and to the tribunal. As officers of

proceeding. proceeding, or causes an adverse or potentially adverse effect on the legal action, and causes injury or potential injury to a party to the legal