Timothy A. O'Meara (2011)

Committee voted torecommend a three year suspension rather than a two yearsuspension.

record, including the transcriptsofthe oral argument and hearings, exhibits and memoranda, the

voted to grant theMotion toReconsider.Afterreconsiderationand reviewoftheextensive

Upon a motion made and duly seconded, and following further discussion the Committee

were recused. David N. Cole was absent.

R. Martin were present. Members Susan R. Chollet, Alan J. Cronheim, and Margaret H. Nelson

Chair,Thomas P.Connair,Gerald A. Daley,RichardH. Darling,JulieA. Introcaso,and James

Esquire. Members Benette Pizzimenti, Vice Chair and Chairofthis matter, Toni M. Gray, Vice

by Disciplinary Counsel and the Objection filed byRespondent'scounsel Michael R. Callahan,

On November 16,2010,theProfessionalConduct Committee deliberatedthemotion filed

the two yearsuspensionachievesthe goalsofattorney discipline.

Disciplinary CounselJenniferB. Sargent. Mr.O'Meara objectedto themotion and argued that

recommending a two yearsuspensionin this matter. AMotion forReconsiderationwas filed by

On August20,2010,the Professional Conduct Committee issued a decision

O'Meara, Timothy A. advs.James and Anita Conant # 07-004

AlanJ.Cronheim Holly B.Fazzino,Admin.Coordinator Thomas P. Connair * nonattorneymember David N. Cole JenniferL. Parent Susan R.Chollet* James R. Martin Toni M. Gray,* Vice Chair 603-224-5828 ♦ Fax 228-9511 Julie A. Introcaso BenettePizzimenti,ViceChair Concord,New Hampshire03301 RichardH. Darling* MargaretH. Nelson,Chair 4 ChenellDrive,Suite102 GeraldA.Daley*

DisciplinaryCounselstatedto theHearingPanelinheropeningstatementon October20,2009,

arbitrationofa fee dispute after the Conant'spersonalinjurycase had been settled. As

the othertwoallegations.The allegationsof deceitarise from Mr.O'Meara'sconductduring

HearingPanelfoundmisconducton Paragraph116,buttherewas nofindingofmisconductas to

The NoticeofCharges included three deceitchargesin Paragraphs116-118.The

seriousmisconduct among a numberofviolations. Wyatt 'sCase, 159 N.H. 285, 306 (2009).

513 (2005).If there are multiplecharges,thesanctionisgenerallyconsistentwith the most

circumstancestaking into account theseverityof themisconduct. Coffey'sCase, 152N.H. 503,

Conner'sCase, 158 N.H. 299 (2009). Each case must bejudgedon its own facts and

the facts found, aviolationofthe rule has occurred andifso, toimpose thepropersanction.

The New Hampshire Supreme Court has the ultimateauthoritytodeterminewhether,on

Standards for guidance as they have not been formally adopted by the Court.

arbitration panelabouthis feeof2 milliondollars. NoticeofCharges ^J116. We look to the

Rule Prof.Conduct 8.4(c)inconnectionwith Mr. O'Meara's falsetestimonybeforethe

Standard5.11(b)is theappropriatestandardfor the violationofNew Hampshire Supreme Court

under Section 5.1 is disbarment. The Committee agrees withDisciplinaryCounsel that ABA

Counsel andconcludesthat the generally appropriate baselinesanctionpursuantto the Standards

IngrantingreconsiderationtheCommitteereviewedthe argumentsmade byDisciplinary

August 24,2010.

The Committee reaffirmsthefactsas found,and violationsstatedin itsdecisionof

concludedthatimposingathreeyearsuspensionbetterservesthegoalsofattorneydiscipline.

AlthoughDisciplinaryCounsel made a strongargumentfordisbarment,theCommittee p. 3 Page 3of8

In all likelihood, theoutcome would have been delayed for months or yearswiththe trial and the

what course the casewould have takenifthemediationfailed and thepartiesproceededto trial.

impedimentto collection above the insurance policy's limits, the Committee can only speculate

be ignored. Although Disciplinary Counsel suggests bankruptcy might not have been an

insurancecoverage. Bankruptcyofthe defendant company was also a possibility that could not

of$11,500,000,which would have constituted$500,000 over andabove the policy limitsofthe

As reflected inJudge Strawbridge'sorder, the Conants wereunlikelytorecoverin excess

Tr.10/20/09,at24: 14-22.

walk away withtheminimum we need for Anita. million. So you need to get us a totalof14.5. Thesettlementneeds to be 14.5 so we can million is his number. He says to Tim, listen, get us 12.5millionand you can have 2 number the family can live with for an annuity,structured-typesettlement.So 12.5 how it goes. In his mind, inJim'smind, 12.5 million is the number, the minimum "Now, Jim makes itclearto Tim the way in which 2millionwould be okay, andhere's

This wasexplainedby DisciplinaryCounsel as follows:

at least$14,500,000iftheattorneyfee was $2,000,000 See Exhibit36, Doc. Nos. 1368 and 1369.

Mr. Conant'sperspective, he made it clear to Mr.O'Meara that thesettlementamount had to be

not satisfythe Conants' financial plan based on their estimateoffamily monthly expenses. From

$3,829,500.Althougha fee of$2,000,000was discussedby the parties, this numbersimplydid

calculations alone, based on thesettlementof$11,500,000,Mr. O'Meara's feecouldhave been

withaprovisionfor 33.3% contingentfeebasedon the grossaward.From themathematical

When theyretainedMr. O'Meara,theConants'signeda standardfeeagreementletter

the fee, okay." Transcript,10/20/09,at 29: 10-12.

"Allofthesedeceitcharges,by theway,stemfromMr. O'Meara'stestimonyatthearbitrationof p. 4 Page 4of8 under Model Rules" 1As restatedinTheGeorgetownJournalofLegalEthics,Summer 2003,"Lawyers,ethicsand fees:Gettingpaid

theprocedurewhen it ismandatory,and,evenwhen it isvoluntary,thelawyershould arbitrationor mediationprocedureestablishedby the bar, the lawyer must complywith [9] If aprocedurehasbeenestablishedforresolutionoffeedisputes,suchas an

state:

In connection with fee disputes, the 2004 ABA Model Code Comments to Rule1.5(a)

(Attributed to Abraham Lincoln).

haveatendencytooverlookethicalconsiderationswhen theyget in the wayofprofits."

takecareofthefamily'sneedsand monthlyexpenses'."[L]awyers,likemosthuman beings,

opportunityfor asubstantialprofit, and that theConantshadenvisioneda life plandesignedto

unreasonable to a client. Mr.O'Meara recognized that AnitaConant'scase offered the

Contingencyfees, especially when they cannot bejustified by well kept time records, may seem

existing standardofprohibitinga "clearly excessive" fee with one that is"unreasonable."

Proposed 2004 ABA Model Code ofProfessional Responsibility.That change replacedthe

New Hampshire adoptedlanguage in Rule 1.5(a) that issubstantiallythe same as the

agreement for, charge, orcollectan illegal or"unreasonable"fee.

violationofRule 1.5(Fees). Under this Rule, a lawyer is prohibited fromenteringinto an

that Mr.O'Meara'sfee was excessive. In other words, the NoticeofCharges does not include a

Althoughthe Rule 8.4(c) violationarises in the contextofa fee dispute, there is nocharge

pending thearbitration.

$750,000(theundisputedamount) with thedisputedbalanceof$1,250,000held in escrow

feedisputebeforeapanelofexperiencedlitigators.Mr. O'Mearareceivedaninitialpaymentof

prospectofappeals.The agreementthatwasreachedincludeda provisionforarbitrationof the p. 5 Page 5of8

had filed certain tax returns when in fact no returns had been filed. Other attorneys have been

causedseriousinjurytotheclientand liedtohisclientandtothetribunal.Morse claimedthathe

was ordered.In Morse'sCase, (decided7/20/2010)disbarmentwas orderedbecauseMr. Morse

The Committeerecognizesa distinctionbetweenthiscaseandothersinwhichdisbarment

Id. at160.

betweenthis case and those in whichsuspensionwas orderedfor violations of the samerules..."

at thecircumstancessurroundingMr. O'Meara'smisconductandfound"importantdifferences

O'Meara'sCase, 150N.H. 157(2003),theCourtimposeda PublicCensure.The Courtlooked

aggravatingfactor,as apriorfindingofmisconductbearasimilaritytotheinstantcase.In

proceedings.Thatfactorwas givenlittleweight.Mr. O'Meara'spriordisciplinaryhistoryis an

recommendationfor a two yearsuspension,the onlypossiblemitigatingfactor was delay in the

The Committee has considered aggravatingand mitigating factors. As stated in the initial

O'Meara toachievea reasonableresult.Exhibit52 and 53.

anyand alldefensesbut they would make no claim in thearbitrationof anyfailureof Mr.

arbitrators andconductedpursuantto RSA 542. It wasunderstoodthat theConants could assert

between Mr.O'Meara and theConants. The case would besubmittedto apanelofthree

for thepurchaseofa structured settlementannuitytofulfillthe periodic payment obligations

$1,250,000 wasdepositedinescrow,with any amount later released to Mr.O'Meara to be used

agreement and releasewhich definedthe scopeofarbitration. Thedisputedamount of

Mr. O'Meara agreed to participate in arbitration in conjunction with a settlement

conscientiouslyconsidersubmittingto it. p. 6 Page 6of8 Historically,theCommitteehasrecommendedsuspensionsof amaximum oftwo years.

not determine when he could apply forreadmission.

satisfyotherrequirementsofRule37(14).InarecentcaseinvolvingMr. Morse,theCourtdid

HampshireBarExaminationand theMultistateProfessionalResponsibilityExaminationand

thebar notearlierthan threeyearsfrom the dateof theorder.She isrequiredto pass the New

recentorderdisbarringMs. Notaris,theCourt'sorderprovidesthatshemay seekreadmissionto

In itsearlierreporttheCommitteenotedthat"disbarment"is notpermanent.In the

Committee.

is unclear how this award was calculated as the full decisionofthe panel was not provided to the

awardedMr. O'Meara a total feeof$1,587,000 ($750,000 with $837,000ofthe disputed fee). It

arbitrationpanelwas in the bestpositiontojudgethecredibilityof thetestimonyand in theend

stake. Nevertheless, Mr.O'Meara'sprofit motive does not justify false testimony. The

was fullyexpectedthat each partywouldvigorouslyadvocateits positionwith somany dollarsat

beforeanexperiencedpanel selectedwith inputfrom theparties.Havingdefined thedispute,it

were defined in thesettlementagreement.The arbitrationoccurredovera periodoffive days

client was terminated in the contextofa fee dispute. The parametersofthe disputed amount

Here, themost seriouschargearises fromconductthatoccurredafterrepresentationofthe

records. See In the MatterofMary Notaris LD-2010-0008 (decidedNovember 10,2010).

ordereddisbarmentofMs. Notarisformisconductinvolvingalteringpleadingsand computer

during the courseofrepresentation. See, Bosse's Case, 155 N.H. 128 (2007). The Court recently

stating to a client that he had filed a bankruptcy petition when he had not; and otherwise lying

disbarredfor lyingto a marital master over a periodofseveral months in a pending case;falsely p. 7 Page 7of8

words,will reflect on hisqualifications.

hasthemoralqualificationstopracticelaw. Inthiscase,Mr. O'Meara'sactions,ratherthan

practicelaw.The Rulesdo notspecifywhatevidencesupportsaconclusionthattheapplicant

preparedtodemonstrateby clearand convincingevidencehisrehabilitationand fitnessto

remainunchanged.IntheeventMr. O'Mearaintendstoapplyforreinstatementhe mustbe

HampshireSupremeCourtforathreeyearsuspension.The otherprovisionsoftheearlierorder

The CommitteeherebydirectsDisciplinaryCounseltofilea PetitionwiththeNew

reportfromtheCommitteeonCharacterandFitness.

37A(II)(d)(2).An applicantforreadmissionmustalsotaketheBarExam and receiveafavorable

administrationofjusticenorsubversivetothepublicinterest. See also requirementsinRule

thepracticeoflawwillbe neitherdetrimentaltotheintegrityandstandingofthebarorthe

hasthemoralqualificationstopracticelaw.The applicantmustalsoshow thattheresumptionof

cases,therespondenthastheburdenofprovingbyclearand convincingevidencethatheorshe

readmissionofdisbarredattorneysandreinstatementin the case of a suspendedattorney.In both

and fitnesstopracticelaw."SupremeCourtRule37(14)addressestherequirementsfor

more thanthreeyears."A criteriaforreinstatementisdescribedas"demonstratingrehabilitation

than six months but "in no event should the time period prior toapplicationfor reinstatement be

ABA Standard12.3 provides that suspension should be for a periodoftime equal to or greater p. 8 Paee8of8

File Mr. and Mrs. Conant JenniferEber,Esquire James P. Bassett,Esquire Maria Matthews. Esquire Michael R. Callahan,Esquire JenniferB. Sargent DisciplinaryCounsel Distribution:

January3,2011 4jgA>L-{4-C- \fi^-^flNU'VlP p. 9 Page 1of40

decisionwas taintedastheReportersentan exparte e-mailtoDisciplinaryCounselwhilethe

Matthews,Esquire,filedaMotionforMistrial.The RespondentclaimedthattheHearingPanel's

Respondent'sCounsel,MichaelR. Callahan,Esquire,and hisassociate,MariaB.

Esquire.

Office.MichaelR. Callahan,Esquire,appearedfortheRespondent,TimothyA. O'Meara,

LandyaB. McCafferty,DisciplinaryCounsel,appearedfortheAttorneyDiscipline

yearsago.The partieshadno objectiontoMr. Cole'sparticipation.

absent.Mr. Coledisclosedthathe was involvedinan actionagainstMr. O'Mearafourorfive

Nelson,Chair,and AlanJ.Cronheimwererecusedand didnotparticipate.SusanR. Cholletwas

RichardH. Darling,JulieA. Introcaso,JamesR. Martinand JenniferL. Parent.MargaretH.

thematter,ToniM. Gray,ViceChair,DavidN. Cole,Thomas P.Connair,GeraldA. Daley,

37A(III)(b)(2).Members presentincluded:BenettePizzimenti,ViceChairandActingChairin

argumentintheabove-captionedmatterpursuanttoNew HampshireSupremeCourtRule

On May 18,2010,theProfessionalConductCommittee("Committee")heardoral

O'Meara, Timothy A. advs.James and AnitaConant # 07-004

AlanJ.Cronheim HollyB.Fazzino,Admin. Coordinator Thomas P.Connair * non attorneymember DavidN.Cole JenniferL.Parent SusanR. Chollet JamesR. Martin ToniM. Gray,*ViceChair 603-224-5828 ♦ Fax 228-9511 JulieA. Introcaso BenettePizzimenti,ViceChair Concord,New Hampshire03301 RichardH. Darling* MargaretH. Nelson,Chair 4ChenellDrive,Suite102 GeraldA. Daley*

hearings,exhibitsand memoranda.

Record, including the NoticeofCharges, Answer, Hearing Panel Reports, transcriptsofthe

Following oral argument, the Committee deliberated this matter and considered the entire

requested by the Conants.

participatedinarbitrationof thefeedisputeand thattheRulesdo notprovidefor the relief

requestfordisgorgementof legalfees.Herpositionis basedon anunderstandingthat theparties

advocated fordisbarment,which she noted is not"permanent,"she alsodecidednot to pursue a

legalfeesthathereceivedinconnectionwiththeConants'case.AlthoughDisciplinaryCounsel

Conantsrequestthat the sanctionbedisbarment,andthat Mr. O'Meara berequiredtoforfeithis

29 a letter from Mr.Bassettto the Hearing Panel Chairaddressingthe issueofsanction.The

appendedto the MotionasAttachmentA. (Recordat Tab 35.) The Record alsoincludesat Tab

the Committee agreed to accept the memorandum regarding sanctionof"forfeitureoffees,"

("Jim") and Anita Conant, filed a Motion toIntervene,which the Committee denied. However,

James P. Bassett, Esquire, and Jennifer A. Eber, Esquire,co-counselfor James E. Conant

303 (2009).

has the ultimateauthoritytodeterminean appropriate sanction. Conner's Case, 158 N.H. 299,

Panel only has the power to make recommendations as to sanction and that the Supreme Court

Hearing Panel in making recommendations on sanction. The Committee notes that the Hearing

Objectionas Mr.O'Meara failed to establish a legal orfactualbasis for a findingofbias by the

her job. The Committee denied the Motion for the reasons stated in DisciplinaryCounsel's

congratulated Disciplinary Counsel on her appointment to the Federal Court and inquired about

case was pending andimmediatelyprior to the issuanceofthereporton sanction.The e-mail p. 11 Page 3 of40

February 8,2010. Although there was no stipulation as to facts, the Hearing Panel made findings

on December 2, 2009. After a hearing on sanction, a final Hearing Panel Report was issued on

The Hearing Panel held five daysoftestimony and issued a Preliminary Summary Report

Rule.

testimony at anarbitrationproceedingofthe underlying fee dispute, and Rule 8.4 (a): General

his fee above theinterestofhis clients; Rule 8.4(c): Deceit andDishonesty,regardingfalse

authority; Rule 1.7(b): ConflictofInterest, by placing his own financial interest in maximizing

Conduct Rule 1.2(a):Scope ofRepresentation,by offering to settle the casewithouthisclient's

The NoticeofCharges allegesrulesviolationsarisingfrom N.H. Rules ofProfessional

resolve a feedispute.

clients had deteriorated andproceedswere held in escrow pending theoutcome ofarbitration to

the time the case settled for$11,500,000.00,the relationship between Mr.O'Meara and his

O'Meara was advised that the paving company's insurance coverage was$11,000,000.00.By

quicklyunfolded as the insurance company for thedefendantsacknowledged liability and Mr.

the Conants on a contingency fee basis at 33.3%ofthe gross amount recovered. The case

facesstaggeringmedicalbills for theforeseeablefuture.Mr. O'Meara wasretainedtorepresent

sufferedcatastrophic injuries and iscompletelyparalyzed.She was 47 years old at the time and

Pennsylvania.Shewas stoppedat a redlightwhen shewas rear-endedby apavingtruck.She

personalinjury case from May 25, 2005 throughFebruary2006. Anita was in a car accident in

This case stems from Mr.O'Meara'srepresentationofAnita and James Conant in a p. 12 Page 4 of40

employee,PaulThimm. The forceoftheimpactwas so severethatitpropelledAnita

4. The pavingtruckwas owned by Lyons & Hohl Paving,Inc.,and was drivenby its

approximately55 mph at thetime.Answer at \ 3.

sittinginhercarataredlightand was rear-endedby apavingtruck,travelingat

occurredinWillistown,PennsylvaniaonMay 19,2005. On thatdate,AnitaConantwas

3. The personalinjurycasearoseasaresultofacaraccidentinvolvingAnitaConantthat

from May 25,2005,throughtheend ofFebruary2006. Answer atf2.

providedtoAnitaM. and JamesE. Conantforatimeperiodlastinglessthanone year,

2. Thiscasestemsfrom thelegalrepresentationinapersonalinjurycasethatMr. O'Meara

New Hampshire03431.Answer atK 1.

O'MearaoperatedhislawofficeasO'MearaLaw, P.L.L.C,45 Summer Street,Keene,

admittedtopracticeon May 29,1993. At alltimesmaterialtothisproceeding,Mr.

1. Mr. O'Mearaisan attorneylicensedtopracticelawinNew Hampshire.Mr. O'Mearawas

followingfindingsoffact:

The Committeefindsthatthereisclearand convincingevidencetoestablishthe

facts.

paragraphsintheNoticeofCharges.The "admittedfacts"arethesame asthegrantedproposed

Report,Page22,ParagraphE.) Many oftheProposedFindingsduplicatesimilarlynumbered

on DisciplinaryCounsel'sProposedFindingsofFactand RulingsofLaw. {See HearingPanel

basedon "admittedfacts"takenfrom Mr. O'Meara'sAnswer totheNoticeofCharges,and ruled p. 13 Page 5of40

friendly with Mr.O'Meara and his wife, DorrieO'Meara. Answer at ^ 9.

9. Jim Conant learnedabout Mr. O'Meara throughhisbrother,Craig Conant, who was

testimonyabouthismeeting withJim Conant on May 25,2005).

legalrepresentationregarding the accident. Answer atU 8; Day 4, p. 29 (Mr.O'Meara's

the next day, on May 25,2005, Jim Conant and hismother met with Mr. O'Meara about

Hampshire with hismother,MargaretConant. Beforetheirreturnflight toPennsylvania

8. On May 24,2005, five days after AnitaConant'saccident,Jim Conant flew back to New

May 25,2005; Jim Conant RetainsMr. O'Meara

Answer at % 7.

AnitaConant was thePostmasteroftheNew Castle,New Hampshire, PostOffice.

Ashley (age18).Jim Conant was anelectricianand owned his ownelectricalbusiness.

Hampton, New Hampshire,with their three children, Todd (age 25), Sean (age 23), and

7. At thetime ofthe accident,Anita Conant was 47 yearsold. She and Jim Conant livedin

atH 6.

that hospital for 23 days in critical condition and was in and outofa coma. Answer

flown byhelicopterto thehospitalat the UniversityofPennsylvania.She remainedat

6. Immediatelyaftertheaccident,AnitaConant was intubatedforrespiratoryfailure and

paralyzed.Answer at^ 5.

5. As a result oftheaccident,AnitaConant sufferedcatastrophicinjuriesand iscompletely

highway. Answer atK 4.

Conant'scar 130 feetforward;hercarlandedupside-down in aditchalong the sideofthe p. 14 Page 6of40

2. In additionto theattorneysfees set forth inparagraphC(l),theClients

will besatisfiedby 33.33% ofthe grossamount recovered. amount ofmoney on behalfoftheclientsinthismatter,the legalfees O'Meara Law P.L.L.C.recover,obtain,or secureagreement for any feebasis.This means thatshouldany member or employee of 1. O'Meara Law, P.L.L.C.agrees torepresenttheclienton acontingency

15. ParagraphC ofthe FeeAgreement, entitled"LegalFees andExpenses,"states:

expensesin the case.Answer at \ 14.

"grossamount recovered"in the case, andthattheConants would be responsiblefor all

14. The Fee Agreement, Exh. 2,providedthat Mr.O'Meara would be paid33.33% ofthe

until such time as hebecame licensed there.Answer at \ 13.

that without the assistanceoflocal counsel, no lawsuit could be filed in Pennsylvania

13. Mr. O'Meara did not inform Jim Conant that he was not licensed in Pennsylvania, and

counsel toassisthim withthe case. Answer at \ 12.

12. Mr. O'Meara did not discuss with Jim Conant thepossibilityofhiring local Pennsylvania

that Mr.O'Meara brought with him to the meeting.Answer at \ 11.

O'Meara signedtheone-pagecontingency feeagreement("FeeAgreement"), see Exh. 2,

11. As a resultofthemeeting,Jim Conant decided to retain Mr.O'Meara. He and Mr.

lastedapproximatelyone hour. Day 1, pp. 61-65.

K 10. Jim Conant'smother sat nearby but was not partofthe conversation. The meeting

Airport..Jim Conant and Mr. O'Meara sat at atableand discussedmatters. Answer at

10. The meeting with Mr. O'Meara occurredat aMcDonald's restaurantneartheManchester p. 15 Page 7 of40

32, p.1111 (Mr.O'Meara'sdescriptionof Anita Conant's surgical procedures).

and theinstallationofa tube for feeding. See Answer at ^ 19 (generallyadmitted);Exh.

inserta permanenttracheal ventilatoruponwhich Anita Conant is dependenttobreathe,

her, including a cervical spinal fusion to insert steel rods into her spine, a tracheotomy to

19. WhileinPennsylvania,Anita Conantunderwentseveralsurgeriesto repair and stabilize

Companiesto represent Lyons& HohlPaving,Inc., and PaulThimm. Answer atTJ18.

Davis, Esq.,ofPhiladelphia, Pennsylvania, was retained by Cincinnati Insurance

18. The insurance policy was issued by The CincinnatiInsurance Companies. Robert S.

million.Answer at^ 17.

2005, Mr.O'Meara learned that Lyons&Hohl,Inc., had insurance coverage totaling$11

17. Approximatelyten daysafter hisinitialmeetingwithJimConant,on or aboutJune 3,

Answer at^( 16.

hour for services rendered by anystaffmember, plusexpensesincurred. the representation. The lien will be calculated at the rateof$275.00 per verdictamount for fees and costs (expenses) incurred during the courseof LAW, P.L.L.C. shall have a lien againstClient'ssettlement, award or must be in writing. If the Client terminates representation,O'MEARA requiredunder the RulesofProfessionalConduct.Notificationeither way P.L.L.C. may terminaterepresentationfor anyjust reason as permitted or The client may terminate representationat any time.O'MEARA LAW,

16. ParagraphD of the FeeAgreement,entitled"TerminationofRepresentation,"states:

Answer at115.

expenses regardlessofa recovery. representationof theclients.The clientsare responsible for any such advanced or incurred byO'Meara Law, P.L.L.C. related to the shall also be responsible for the reimbursementofany expenses p. 16 Page 8 of40

toproceed totrial.... limits case.Ifsaid limits are not paid, theConant family hasinstructedme ...As I have indicated on numerous occasions previously, this is a policy

25. In a letterto Mr.Davis dated December 8,2005, Mr. O'Meara wrote:

informed Mr.O'Meara that Cincinnati would not be contesting liability. Answer at^ 24.

Insurance,visitedAnita Conant at her home inHampton. On thatdate, Mr.Davis

24. On December 1,2005,Mr. Davis, along with a ClaimsManager from Cincinnati

court inPhiladelphia,Pennsylvania.Answer at^ 23.

Bar, he filed thepersonalinjurylawsuiton behalfofAnita and Jim Conant in federal

23. On November 3, 2005, the same date that Mr.O'Meara was sworn into the Pennsylvania

November 3,2005: Mr. O'Meara FilesSuitin Philadelphia

home to live and be cared for by nurses and her family. Answer at^ 22.

22. On August 31,2005, afterthe family home wasrenovatedforAnita Conant, she returned

Hampton so that Anita Conant would be able to live at home. Answer atf 21.

in Exeter for a short time, while her family completedrenovationson their home in

Exeter Skilled Nursing Care, a nursing home in Exeter, New Hampshire. She remained

21. Followingher stay at theShepherd CenterinAtlanta,Anita Conantwas transferredto

necessary for her care. Answer at^ 20.

time, the entire family attended classes and received direct training on the procedures

Atlanta,where Anita Conant stayed from June 22 through August10,2005. During this

decided to attempt an aggressive spinal cord rehabilitation program at Shepherd Center in

General")so that she could be closertohome. After13 days at MassGeneral,thefamily

20. On June 9,2005,Anita Conant was transferredto Massachusetts General Hospital ("Mass p. 17 Page 9 of40

Jim Conant made clear to Mr. O'Meara during that conversation that Mr. O'Meara was

30. On January13,Mr. O'Mearaalsohad adiscussionwithJim Conantoverthetelephone.

same).

conversationwithMr. O'Meara);Day 3,pp.23-24(Mr.Davis'stestimonyconfirming

Davis'sFebruary3,2006,letter,inwhichhesummarizeshisJanuary13,2006,

reflects"portionsoftheconversationofJanuary13,2006");Exh.27,p.1049 (Mr.

itsemployee,wouldbefullyreleased.Answer atf29 (admittingthatthisparagraph

thatinexchangeforthepolicylimits,lessadvancepayments,Lyons& Hohl alongwith

settlement,andexpressedan interestinstructuringhisfee.Mr. O'Meara toldMr. Davis

potentialsettlementofthecase.Mr. O'Mearadiscussedthepossibilityofastructured

29. On January 13, 2006, Mr.O'Meara had an extendeddiscussionwith Mr. Davis about

"lifetimecost"neededtosustainAnitaConantat$15,342,083.00.Answer at128.

Life Care Plan for Anita Conant dated December26, 2005. This Plan listed a total

28. Mr. O'Meararetainedacertifiedlifecareplanner,Dr.DavidB. Stein,who prepareda

settlethecaseforthepolicylimitsatthattime.Answer at % 27.

27. Mr. O'Mearamade thisDecember8demand,knowingthathe didnothaveauthorityto

O'Mearato offersettlementforthepolicylimits.Answer atU 26.

26. As ofDecember 8, 2005,neitherAnita Conant nor JimConant had authorizedMr.

Answer at1(25. p. 18 Page 10 of40

stated that the offer had been made and was accepted, and the contract was enforceable.

policy limits, Mr.O'Meara stated that the offer was no longer on the table. Mr. Davis

Davis communicated hisclients'acceptanceofMr. O'Meara's offerto settle for the

accept Mr.O'Meara'sterms. During this telephoneconversation, but only after Mr.

Mr. O'Meara'soffer to settle for the policylimits,and that he was calling toformally

whichMr. DavisinformedMr. O'Meara that he was able to persuadehis client toaccept

32. On January24, 2006, Mr. Davis andMr. O'Meara had a telephone conversationduring

January 24,2006: Mr. Davis Accepts Offerto SettleforPolicyLimits

communication).

settle for the policy limits because it was an attorney-client"confidential"

13conversationwith his clients, he did not revealhis clients' withdrawal ofauthorityto

(Mr.O'Meara'spleading datedFebruary17,2006, in which he argues that, after January

Mr. Davis that he lackedauthorityto maketheDecember 8 demand); Exh. 32, pp.114-16

testimony about the time between January13-24,and his not having communicated to

lacked authority to make December 8 demand); Day 4, pp.133-36(Mr.O'Meara's

Davis'stestimonythat,priorto January24,2006,Mr. O'Meara had neverindicatedhe

othersubsequentoffers to settle for thepolicylimitswerewithdrawn.Day 3, p. 49(Mr.

Davisthat hisDecember 8 demand to settlefor the policy limits wasrevoked,or that any

conversationwith Mr. Davis on January 24, Mr.O'Meara did notcommunicate with Mr.

31. FollowinghistelephoneconversationwithJimConanton January13,and prior to his

offered.Answer at % 31.

not authorized to settle the case for the policy limits, evenifthe policy limits were p. 19 Page 11 of40

which you informedme that your clients havewithdrawn theirsettlement 2006 inwhich you refer to ourtelephoneconversationearliertodayduring Iacknowledge receiptofyour letterwhich you have datedJanuary20,

36. On January 24, 2006, Mr. Davis wrote the following in a letter, to Mr.O'Meara:

35. Messrs.O'Meara and Davis had not had any contact onJanuary20. Answer at^ 36.

Answer at^ 35.

thissituation.Thank you. Pleaselet meknow ifyou can see anyreasonablealternativesto trial in

medicalcoststhatare far in excessofthoseoriginallyanticipated. medicalneeds. Further,it does notsufficientlyprovidefor thecurrent and suffering,hereconomic losses, her past medical bills and her future amount simply does not adequately compensate Anita for allofher pain demand for the policy limitsof$11,000,000.Theirconcernsare that said serve toinformyou that my clients havewithdrawn theirsettlement As we discussedon the phone this morning, thiscorrespondenceshould

O'Meara datedJanuary20, 2006. Exh. 16. In that letter, Mr.O'Meara wrote:

34. In response, Mr.O'Meara drafted a letter to Mr. Davis on January 24, which Mr.

conversation);Exh. 15 (Mr. Davis'sJanuary 24, 2006,letterto Mr.O'Meara).

Day 3, pp. 25-29 (Mr.Davis'stestimony about the January 24, 2006, telephone

settlementoffer you stated that the plaintiffs nowwithdraw the offer. Subsequent to the above referenced acceptanceoftheplaintiffs'

all aspectsofthis case for the policy limitsof$11,000,000. defendantsand theirinsurer,oftheplaintiffs'policylimitsofferto settle I write to confirm my telephone acceptanceofthis date, onbehalfofthe

January 24, 2006, stating:

33. To confirm the conversation,Mr. Davis drafteda letterto Mr.O'Meara dated

conversation); Exh. 15 (Mr.Davis'sJanuary 24, 2006, letter to Mr.O'Meara).

Day 3, pp. 25-29 (Mr.Davis'stestimony about the January 24, 2006, telephone p. 20 Page 12 of40

detailingMr. O'Meara's responsesto theConants'concerns).

$11 millionand theyhad not");Exh. 35, p.1387 (Jim Conant'swrittenstatement

Davis wastwistingthe words to make it look like they hadofferedto settle the case for

offers anddemands tosettle.Answer at \ 40 (admittingthat"he toldMr. Conant that Mr.

a matterofMr. Davis having misconstruedconversationsabout settlementas formal

39. In response to JimConant'sconcern, Mr.O'Meara assuredJim Conant that it was simply

same).

describingtheseconversations);Day 1, pp.112-19(Jim Conant'stestimonyregarding

subject matteroftheconversations");Exh. 35, p. 1387 (JimConant'swrittenstatement

settlementdemand thatthey had never made. See Answer atK 39 ("generallyadmits the

toldMr. O'Meara thathe did not understand how he and Anita could "have withdrawn" a

clientshave withdrawn theirsettlementdemand for thepolicylimits...." Jim Conant

were concerned by thestatementin hisJanuary24 letter(datedJanuary20) that"my

policy limitswithoutany authority to do so. Jim Conant said that he and Anita Conant

Jim Conant expressedhisdismay that Mr.O'Meara had made an offerto settlefor the

38. In conversationswith Mr. O'Meara followingreceiptoftheJanuary24 correspondence,

O'Meara. Answer at^|38.

O'Meara and Mr.Davis,Jim Conant had severaltelephoneconversationswith Mr.

37. Followinghisreceiptofcopiesofthe January 24, 2006,correspondencebetween Mr.

Exh. 17;Answer at137.

on theletterwas simplytheresultofinadvertence. demand for the policy limitsof$11,000,000.00.Itrustthat the date used p. 21 Page 13 of40

explained toO'Meara how the family viewed the situation and asked him to consider

granted, then O'Meara should bear major responsibility for allowing this to happen. Jim

end thedefendantsmotion touphold thesettlementagreement for thepolicylimitswas

O'Meara and starta dialoguewith him aboutreducinghis fee.The familyfeltthatifin the

35, p.1388-89(JimConant'swritten statement: "It was agreed that Jim would approach

thought that he should be held responsibleifthis was the way it was going to be"); Exh.

shouldconsiderreducinghis fee. Day 1, p.115 (Jim Conant'stestimony:"we just

lightofMr. O'Meara's error in offering to settle for the policy limits, Mr.O'Meara

43. During this January 26, 2006 conversation, Jim Conant suggested to Mr.O'Meara that, in

histermination).

letters datedJanuary26, 2006, reflecting"candid"discussionregardingfees and issueof

Conant'stestimonyregardingtheseconversations);Exh. 35, p. 1389 (Mr.O'Meara's

concernsregardinghis offer to settle for the policy limits. Day 1, pp.112-19 (Jim

concerns the family had about Mr.O'Meara's representationofthem, specificallytheir

Conant'sneeds for herfuture.Answer at^ 43. Jim Conant alsocommunicated serious

about thefamily'sconcernthat the policy limits were notsufficientto support Anita

42. On or about thatsame date,Jim Conant had furtherconversationswith Mr. O'Meara

presented to the family. Answer at142.

41. At thatmeeting,a structuredsettlementplan datedJanuary25,2006, Exh. 20, was

for astructuredsettlement.Answer at141.

financial planners, Richard Neville and Ronald Sullivan, to assist the family with plans

40. On or about January25, 2006, Mr.O'Meara met with theConant family and two p. 22 Page 14 of40

Answer at \ 47.

limits. plaintiffsoffer andtenderedthebalanceof the$11,000,000.00policy O'Meara and Davis,counselfor thedefendantsunqualifiedlyacceptedthe On January 24, 2006, during a telephoneconversationbetween Attorneys

December 2005. timeofthe accident) which includes partial payments to the plaintiffs in propertydamage to theautomobilebeingoperatedby Anita Conant at the (reduced only by a payment made in the amountof$16,409.00 for The CincinnatiInsurance Companyofthe$11,000,000.00policylimit resulting in a full releaseofboth defendants, in exchange for payment by severaloccasions,communicated an offertosettleallaspectsofthe case, During the courseofthosenegotiationscounsel for the plaintiff, on Settlement negotiations have involved attorneysO'Meara and Davis.

Settlement Agreement." In that Motion, Mr. Davis wrote:

45. On or about January31,2006, Mr. Davis filed"Defendants'Motion to Enforce

January 31,2006: Davis'sMotion to Enforce SettlementAgreement

$23,011,845.72.Answer atK 45.

21, p.1008.This Plan listed a total "lifetime cost" needed to sustain Anita Conant at

44. Dr. Steindrafteda second Life CarePlan forAnitaConant datedJanuary26, 2006. Exh.

decidedtoterminatemy servicestoday").

discussions regarding his legal fee as well as what would happen"if[the Conants]

added); Exh. 22 (Mr.O'Meara'sletter dated January 26, 2006, reflecting"candid"

to whatthefamily consideredto befairfor thispossibleblunderon hispart") (emphasis

fee by$166,000.00.Although we appreciated any gesture on his part, this was not close

reducing his fee, he said he would consider that. He came back with an offer to reduce his p. 23 Page 15 of40

millionpolicylimits. See,e.g., Day 1,pp.98-104;129-32(Jim Conant'stestimony

began to focus on their financial situation, assuming that the settlement would be the$11

andhisJanuary31 MotiontoEnforce,Jimand AnitaConantand theConantfamily

50. InlateJanuaryandearlyFebruary2006,and as aresultofMr. Davis'sJanuary24 letter

was made, was simply not enough." Answer at151.

conversationofJanuary13,2006 as we had made it very clear that this offer, even if it

settlethis case for$11,000,000.Allsettlementauthoritywas revokedafter our

affidavit,Jim Conantstated:"Atno timehadwe givenourattorneyexpressauthorityto

affidavitdatedFebruary6,2006. Exh.29,pp.59-60.In thefinalparagraphof that

49. Mr. O'Meara attachedseveralexhibitsto thememorandum, includingJim Conant's

29, p. 41.

[sic]December8thletterisclearlyademand forthepaymentof thepolicylimits."Exh.

Objection. Exh. 29, pp. 39-62. In hismemorandum, Mr. O'Meara conceded:"Plaintiffs

48. Onor aboutthat samedate,Mr. O'Mearafileda memorandum in supportof his

Answer at1) 49.

accept,norhas heaccepted,theDefendants'offerin this casefor thepolicylimits."

by theplaintiffs.Mr. O'Meara also wrote:"Plaintiffshad not authorizedtheircounselto

thedefendantsashavingofferedtosettleforthepolicylimits,whichofferwas rejected

Enforce Settlement Agreement. Exh. 29. In the Objection, Mr.O'Meara characterized

47. On or about February 7, 2006, Mr. O'Meara filed an Objection to Defendants' Motion to

been formallyacceptedwas ineffectiveas amatterofcontractlaw. See Exh. 25.

46. Mr. Davis argued in hisMotion thatMr. O'Meara's retractionoftheofferafterit had p. 24 Page 16 of40

testimonyregardinghiscontactwith Jim Conant inNovember 2006).

he reached out to help JimConant as a personal friend. Day 3, pp.177-78 (Mr. Ganz's

had taken a personal interest in Anita Conant as soon as he learnedoftheir situation, and

Seabrook,forwhom Jim Conant'scompany had done some electricalwork. Mr. Ganz

54. Prior to theFebruary25 meeting,Jim Conant spoke with Alan Ganz, Esq., an attorney in

Answer at \ 59.

53. Mr. O'Meara and CraigConant rode together in the drive fromKeene toHampton.

Philadelphiaon thatfollowingMonday, February27, 2006.Answer at^[55.

them inordertopreparefor amediationthatwas scheduledto occur infederalcourtin

52. On Saturday,February25, 2006, Mr.O'Meara came to theConant'shome tomeet with

testimonyregarding$12.5 million).

$12,500,000.00to meet theirprojectedneeds");Day 3, p. 76, 100(CraigConant's

O'Meara and hecould clearlysee that the familywould need to have a base figureof

(Jim Conant'swrittenstatement:"thefamily wentovertheirprojectedbudget with Mr.

e.g., Day 1, p.154 (JimConant'stestimony regarding $12.5 million); Exh. 35, p.1389

Conant needed $12.5 million to place into an annuityto support her for her lifetime. See,

O'Meara and the family, JimConant and his family reached theconclusionthat Anita

51. As a resultofthe life plans for Anita Conant prepared by financial planners hired by Mr.

same.)

regarding this issue); Exh. 35, pp.1388-99(JimConant'swritten statement regarding the p. 25 Page 17 of40

(CraigConant'sdescription).

Conant's description); Day 2, pp. 78-80 (SarahSullivan'sdescription); Day 3, pp. 75-76

(Jim Conant's description of beginningofFebruary25 meeting); Day 2, pp.30-31(Sean

amount the family anticipated that Anita Conant would need. See, e.g., Day 1, pp.129-33

there. Not long thereafter, Jim Conant began discussing the financial numbers and the

58. Mr. O'Meara began by discussing the mediationand what they could expect to happen

Ashley, and a friendofthe Conantfamily,Sarah Sullivan. Answer at \ 60.

O'Meara, CraigConant,Jim Conant, Anita Conant,theirthreechildren,Sean, Todd, and

57. During the meeting on February 25, 2005, the following people were present: Mr.

(AnitaConant'stestimonythatshe "wanted to fireTim").

e.g., Day 1, pp.115,129-31 (Jim Conant'stestimonyabouttheseissues);Day 2, p. 10

about his fee and seeiftheycouldget him torenegotiatetheone-thirdcontingency. See,

O'Meara. The familydeterminedinadvance thattheyneeded to confrontMr. O'Meara

toterminateMr. O'Meara's services.Jim Conant was not ready to terminateMr.

were disappointed in Mr.O'Meara'srepresentation.Anita Conant had expressed a desire

56. In advance ofthe February 25 meeting, the Conant family haddiscussedthe fact that they

O'Meara).

147 (Mr.Ganz'stestimonyabouthisadviceto JimConantregardingterminationofMr.

O'Meara withoutcause and be obligated to pay Mr.O'Meara at hishourlyrate. Day 3, p.

Agreement.Mr. Ganzexplainedthat, in hisview,Jim Conant couldterminateMr.

meeting,Mr. Conantasked him abouthis righttoterminateMr. O'Meara underthe Fee

55. JimConantsoughtMr. Ganz'sadviceon aninformalbasis, and, prior to theFebruary25 p. 26 Page 18 of40

statedlitigation"getsugly"and is"an unhappy resultforeveryone."Answer at \ 67.

64. Sean Conant asked Mr. O'Meara: "What would happen ifwe fireyou?" Mr. O'Meara

why Ishouldn'tfire younow").

(Mr. O'Meara's testimonythat, atFebruary25 meeting,Anita Conant asked,"Tellme

which Sean was able totranslate:"Tellme why I shouldnot fire younow?" Day 4, p. 82

63. During theheatedexchange,AnitaConant mouthed thefollowingwords to Mr.O'Meara,

as well havethrown itagainsta brick wall").

83 (CraigConant'sdescriptionofthe reaction to his $2millionproposal: "well, I might

See, e.g., Day 2, pp.79-80 (SarahSullivan'sdescriptionofthisincident);Day 3, pp. 82-

case.NeitherJim Conant,nor anyofthe other Conants,respondedtoCraig'scomment.

effect that he had spoken with people who thought a $2millionfee was reasonable for the

62. At some point duringthediscussionofMr. O'Meara's fee,Craigstated somethingto the

at164.

$500,000.00.Jim Conant became very angry andstormedoutofthe room.Answer

61. At one point Mr.O'Meara responded that he would be willing to reduce his fee by

thesettlementwas only for the policy limits.Answer atf 63.

60. Jim Conant broughtup thequestionofwhat Mr. O'Meara's feewould be in theeventthat

Lyons & Hohl offer an amount to settle in excessofthe policy limits.Answer at^|62.

their side. Mr.O'Meara also stated that he felt they were in a goodpositionto have

to Enforce SettlementAgreement. Mr. O'Meara assuredthem thatthe case law was on

59. Jim Conant discussedthefamily'sconcerns with respect to Mr.Davis'spending Motion p. 27 Page 19 of40

mediation.Answer atK 73. After the video, Mr.O'Meara said a few more words about

Conantentitled,"A DayIn TheLife,"that waspreparedby Mr. O'Meara to showat the

70. AftertheFebruary25 Amendment was finalized,theywatcheda videoaboutAnita

at1|72.

AgreementatExh.37,ishereinafterreferredto as"February25 Amendment").Answer

downstairstohaveMr. O'Mearaplacethedatenexttohisinitials.(Theamended Fee

69. Afternoticingthatthechangeswerenotdated,Ms. Sullivanbroughtthedocumentback

Sullivancarriedthedocumentupstairstomake copiesofthedocument.Answer atU71.

initials next to the changes, and Jim Conant also initialed the document. Exh. 37. Ms.

contingentfee, and wrote in its place, "to benegotiated."Mr. O'Meara wrote his

68. Mr. O'MearacrossedoutParagraphC(l),theparagraphcontainingtheone-third

Answer at^ 70.

everyone.Mr. O'Meara hadpreviouslyremovedthe FeeAgreementfrom hisbriefcase.

67. Therewas aconsensusintheroom thatthephrase"tobe negotiated"was acceptableto

suggestedthattheywriteinthephrase,"tobenegotiated."Answer at1) 69.

one-thirdcontingentfee andrenegotiatethepercentageof the fee. Mr. O'Meara

66. Ms. SullivanthenproposedtoMr. O'Mearathattheystriketheparagraphcontainingthe

(Sarah Sullivan's testimony regardingsame).

acceptSarahSullivan'sproposaltorenegotiatetheentireFee Agreement);Day 2,p.82

Agreementin thatmanner.Day 4, p.83 (Mr.O'Meara'stestimonythat herefusedto

scratchand renegotiatetheFee Agreement.Mr. O'MeararefusedtorenegotiatetheFee

65. Duringtheheatedexchange,Ms. SullivansuggestedthatMr. O'Mearaagreetostartfrom p. 28 Page 20 of40

2005 shallapply. then the terms andconditionsof ouroriginalagreement,dated May25, the case goes go (sic) to a trial or is settled during a trial in this matter, purposeoffacilitating settlement only. If, for some unforeseen reason, This modification and compromiseofattorneys fees is intended for the

$2,000,000.00. attorneysfeesand costsinclusiveshall be nomore than and no less than: settlementoffer is no more that (sic)$11,000,000then the totalofall subsequent settlement resulting therefrom are as follows: If the final purposeofresolvingthismatteratsettlementconferenceon 2/27/06or Lyons & Hohl Paving. Inc.and Paul Thimm Docket # 05-5807.) forthe connectionwith thiscase (AnitaM. Conant and James E. Conant v. acknowledge that the attorneys fees for legal services rendered in Conanton behalf of Anita M.Conant,herebyagree,accept and I,Timothy A. O'Meara on behalfofO'Meara Law, PLLC and James E.

representationsand commitments made on 2/25/06: The following memorandum is simply a codificationofthe verbal

72. The February26 Memorandum states:

February 26, 2006.Answer atf 74.

ofFebruary27, 2006. It was signed by Mr. O'Meara and had a handwrittendate of

Memorandum"). Exh.40. The February26Memorandum containedat thetopthedate

"Memorandum ofUnderstandingRegardingFees"(hereinafter"February26

Philadelphia.Beforeleaving,he telefaxedto Jim Conant a document entitled,

71. The next day, Sunday, February26,2006,Mr. O'Meara drove from Keene to

testimonyregardingsame).

Conant'stestimonyaboutwhatoccurredafterthevideo);Day 2, p. 85(SarahSullivan's

theway" and thenheand CraigleftandreturnedtoKeene together.Day 1,p.141 (Jim

themediation,and tookAnitaConant'shandand toldherhe"wouldnotlethisfeegetin p. 29 Page 21 of40

forFebruary27 at1:30p.m.).

regardinghis trip toPhiladelphiaon February27;Exh.26 (Orderschedulingmediation

was scheduledfor1:30p.m. thatday. Day 1, pp.144-45(Jim Conant's testimony

Ashley,andMr. Neville,andtheymetCraigat thefederalcourthouse.The mediation

75. On Monday, February27,2006,JimConantflewtoPhiladelphiawith hisdaughter,

O'Meara).

Jim Conant after Jim received a copyofthe February 26 Memorandum via fax from Mr.

signthis.");Day 3, pp.93-94.(CraigConant'stestimonyregardinghisconversationwith

agreementthatyou'vedecidedyouwantus tolookat, and Iadamantlytoldhim,Iwillnot

with what you talked aboutyesterday,'to be negotiated.' This is a whole different

back, and I said, Tim, I don't know what you're doing here. I said, this has nothing to do

February26 Memorandum); Day 1,p.143 (JimConant'stestimony:"Yeah, I calledhim

Memorandum. Answer at177 (admittingthat Jim Conant "said he would not sign" the

legalfee was "to benegotiated."JimConantsaid he would not sign theFebruary26

February26 Memorandum did notreflecttheiragreementfrom the day beforethat his

telephonedhim. Answer atK 77. JimConantmade clearto Mr. O'Meara that the

74. While Mr. O'Meara was in his cartravelingtoPhiladelphiaon thatdate,Jim Conant

Memorandum to Craig Conant, Exh. 39, via email.Answer atK 76.

73. On February26, 2006, Mr. O'Meara sent a similarversion of the February26

Answer at^[75. p. 30 Page 22 of40

at thatpointthere todiscussthis. Q. Okay. Did Mr.O'Meara say anythingelse about

into thehearinghere in a fewminutes.So Jimmy and I got up andwalked outofthe room

negotiated" later on. Why we (sic) are doing this now at the11thhour? We've got to walk

he pushed it across the table to Jimmy, and Jimmy was, like, Ithoughtwe had a "to be

Jim, I can't go forward with this case unless I have an agreement for this $2 million. And

him ofthenew feeagreement thathe wished tohave Jimmy sign.And he basicallysaid,

98 (CraigConant'stestimony: "In a nutshell, Tim O'Meara had the paperwork in frontof

at least $2millionas a fee or he would not go forwardwiththemediation.Day 3, pp. 97-

issueofhis fee wasresolved.Answer at181. Mr. O'Meara statedthathe wanted to get

78. Mr. O'Meara statedthathe was not prepared to go forwardwith themediationuntil the

Neville'stestimony:"I was specifically told Iwasn'tneeded.").

themselves"from hismeeting with Jim andCraigConant);Day 2, p.103 (Richard

Day 4, p. 93 (Mr.O'Meara'stestimony that he asked Mr. Neville and Ashley to "excuse

O'Meara askedAshley and Mr. Neville to"excusethemselves"and they left the room.

O'Meara'stestimonythat he told them he had "somehousekeepingto take careof).Mr.

Jim and CraigConant separatelyto discuss"housekeeping"matters.Day 4, p. 93 (Mr.

77. When they met with Mr. O'Meara at the courthouse, Mr.O'Meara asked to meet with

at179.

oftheseriousnatureofAnita Conant'ssurgeryscheduledforlaterthatweek. Answer

worriedthatAnita Conant might notsurvivethissurgery.Mr. O'Meara was also aware

have surgery on that Friday, March 3, 2006. Jim Conant and the family were deeply

76. On theforefrontofJim Conant'smind was thefactthatAnita Conant was scheduled to p. 31 Page 23 of40

Conant felt that he was under great pressure to negotiate anagreementwith Mr.O'Meara,

80. After telephoning his family, Jim Conant returned to the meeting with Mr.O'Meara. Jim

going to have to talk to - - talk to Sean and Anita.").

O'Meara'stestimonythat Jim Conant said: "Geez, Ican'tbelieve this is happening.I'm

are we going to do? And it was — you know, it was a bomb."); Day 4, p.192-93(Mr.

"Jimmy and I — he's — Jimmy's extremely upset at this point here and he's going, what

to be able tocommunicate with her forme.");Day 3, p. 98(CraigConant'stestimony:

the hall and I called back up to New Hampshire to speak to Anita and whoever was there

leave. I was so mad, I had to leave. And I went — I gotout ofthatroom, and Iwent down

inmediation,why is itthatwe have to havesomething likethis?And I said, I've got to

the wayofwhat Anita needed. If you're so confident in what we're going to be able to do

be doing this. This can't be real. You know, Tim, you said you'd never let your fee get in

another11thhour thingabout fees on us was, like, you've got to bekiddingme. You can't

going into surgery, and it was, you know, a lot things going on. And for him to pull yet

being in a federal courthouse to begin with, the ideaofthis mediation, the ideaofAnita

"Well, I was pretty upset, to say the least, because you know, I was a little nervous just

very upset and left themeetingto call his family. Day 1, p.148 (Jim Conant'stestimony:

79. Mr. O'Meara presented the February 26 Memorandum. Answer at % 82. Jim Conant was

ifTim wasn'tpresent.").

was no way Jimmy would be able to get — get this taken careoftoday, meaning the 27th,

forward. Hecouldn'tmove forwardand representJimmy thatday ifhe couldn't,and there

signing the document? You said he said I've got to get $2 million? A. Or I can't move p. 32 Page 24 of40

Conant on behalfofAnita M. Conant, hereby agree,acceptand I,Timothy A. O'Meara on behalfofO'Meara Law, PLLC and James B.

representationsand commitments made on 2/25/06: The followingmemorandum issimplya codificationoftheverbal

document:

the boldtextrepresentingthehandwrittennotationsthatMr. O'Meara added to the

representingthehandwrittenstrike-throughthat Mr.O'Meara made on thedocument,and

84. What follows is the textoftheFebruary27 Agreement,Exh. 40, with a strike-through

thatdate.Answer at1 89.

83. Mr. O'Meara did not make a photo copyofthe February 27 Agreement for Jim Conant on

wrote the date, 2/26/06, next to his signature by mistake. Answer at1 88.

February 27 Agreement. Exh. 40. Jim Conant did not initial the changes. Jim Conant

82. Mr. O'Meara initialed the handwrittenchanges,and Jim Conant signed and dated the

a February26 date.Answer at1 86.

Agreement"). Mr.O'Meara's signature was already on the February 27 Agreement, with

Memorandum with handwrittenchangesthat he had made to it (hereinafter"February27

81. Mr. O'Meara placed in front of Jim Conantfor his signaturea versionoftheFebruary26

Conant'stestimonyregardingthe same).

pp.149-53(JimConant'stestimony about this incident); Day 3, pp. 98-99 (Craig

this: "He said, 'I feel like I don't have any choicebut to sign the agreement.' "); Day 1,

and he told that to Mr. O'Meara. Day4, p.193 (Mr.O'Meara'stestimonyconceding

agreement.Jim Conant concluded that he had no other choice but to sign anagreement,

as he feared that Mr.O'Meara would refuse torepresenthim at themediationwithoutan p. 33 Page 25 of40

at!93.

agreed to keep theofferon the table until Thursday,March 2,2006, at noon.Answer

which equaled the policy limits, plus $500,000 from Lyons & Hohl. The defendants

87. At the end ofthe mediation,thesettlementofferfrom thedefendantswas $11.5 million,

declarebankruptcy.Answer atfl92.

thedefendantswere forced to pay more than $500,000, Lyons &Hohl would likely

ofthe policy limits that it could put on the table was $500,000. The Judge verified that,if

Lyons & Hohl, and verified the defendants' assertion that themaximum amount in excess

acted as the mediator,informed Mr. O'Meara thathe had reviewed the financialsof

86. The mediationoccurredas scheduled.During themediation,Judge Strawbridge,who

meetingregardingtheFebruary27 Agreement.Answer at f 91.

85. The mediationtook place after Jim Conant, Craig and Mr.O'Meara concludedtheir

Answer at1) 90.

shallapply. theterms and conditionsofour originalagreement,dated May 25, 2005 case goes go (sic) to a trial or is settled during a trial in thismatter,then purposeoffacilitating settlement only. If, for someunforeseenreason, the This modificationand compromise ofattorneysfees isintendedfor the « 14,500,00 (sic). allsettlementsup to 14.5 m then 20% forallamounts recovered over costsinclusiveshallbe no more than and no lessthan:$2,000,000.00 for no more that(sic)$11,000,00thentThe totalofallattorneysfeesand settlementresultingtherefromare as follows:Ifthe finalsettlementofferis ofresolvingthismatteratsettlementconferenceon 2/27/06or subsequent & Hohl Paving.Inc. and PaulThimm Docket # 05-5807.)for thepurpose connectionwith thiscase (AnitaM. Conant and James B. Conant v. Lyons acknowledge thattheattorneysfees for legalservicesrenderedin p. 34 Page 26 of40

Hospital to makepreparationsfor her surgery on Friday.Answer at^ 97.

91. On Wednesday, March 1,2006, Anita Conant wastakentoMassachusettsGeneral

who hisattorneywas and he told me DavidGarfunkel.").

And I asked himhow that waspossible,and he said,speak to my attorney.Iasked him

$275 an hour, or in quantum meruit, and that he responded, no, I'm getting $2 million.

terminatehiscontract,thatbased on hiscontract,it was myopinionthathe would be paid

Ganz's testimony: "I told him that the Conants were verydissatisfied,that theywanted to

referredMr. Ganz to hisattorney,David A.Garfunkel,Esq. Day 3, p.186-87 (Alan

terminatinghisservicesand that theyintendedto pay him hishourlyrate. Mr.O'Meara

90. On thatdate, Mr.Ganz telephonedMr. O'Meara and informed him thattheConants were

theywanted toterminatehiscontract....").

tell usaboutthatconversation.A. I told himthattheConants were very dissatisfied,that

terminated. Day 3, p.186 (AlanGanz's testimony: "IcalledMr. O'Meara. Q. Okay. And

behalfwith Mr. O'Meara, and inform Mr. O'Meara thathisserviceswere being

occurredat themediation.Jim Conant asked Mr.Ganz tocommunicate on thefamily's

89. On Tuesday, February28, 2006, Jim ConanttelephonedMr. Ganz todiscusswhat

February 28,2006: Decision to Terminate Mr. O'Meara

testimonyaboutdecisionto fire Mr.O'Meara after themediation).

decidedthatJim Conant shouldterminatehim. Day 1, pp.163-64 (Jim Conant's

O'Meara had handled themediation,includingthemeeting beforehand,and theyall

88. Upon his return home, Jim Conant discussed with the family themanner in which Mr. p. 35 Page 27 of40

courthouseinPhiladelphia.On that date, Mr.O'Meara fileda withdrawalas counselfor

98. On March 6,2006,Judge Strawbridgeresumed thesettlementconferencein thefederal

hourly bill for hisservices.Answer at^ 104.

services andrequested,pursuantto Paragraph Dofthe FeeAgreement, an itemized

97. By letter to Mr.O'Meara dated March5,2006,Exh. 45, JimConant terminatedhis

170-71 (Jim Conant'stestimonyaboutretainingMr. Busby over theweekend).

Conant,and retainedLeonard A. Busby, Esq., from aPhiladelphialaw firm. Day 1, pp.

96. Jim Conant spenttheweekend searching for an attorney torepresenthim and Anita

Answer at1) 102.

2006, theJudge scheduleda furthersettlementconferenceforMonday, March 6, 2006.

95. Followinga conferencecallbetween allpartieswith Judge Strawbridgeon March 3,

to settlethecase).

March 3,2006,deadline.Day 1, p. 165 (JimConant'stestimonyregardingthedecision

would take theadditional$500,000 offthe tableifthesettlementwas notacceptedby the

interests toacceptthe$11.5millionsettlementoffer, as they fearedthatLyons & Hohl

94. On or aboutFriday,March 3, 2006, JimConant and thefamilydecidedit was intheirbest

foracceptanceofthesettlementoffer. Answer at1) 100.

93. The defendantsagreed toextenduntil Friday,March 3,2006, at4:00 p.m.,thedeadline

negotiations by Mr. Garfunkel. These negotiations were not successful. Answer atH 98.

settlementoftheirfeedisputewith Mr. O'Meara, who was representedinthose

92. During thatweek, Mr. Ganz attemptedon behalfofJim andAnita Conant tonegotiatea p. 36 Page 28 of40

O'Meara proposed to thefamilythat, in theeventthatthetotalsettlementwas for no

discussions with the family about his fee. Mr.O'Meara testified that, after the video, Mr.

finalized,and theywatched the"Day in the Life" video, Mr.O'Meara had further

105. Mr. O'Meara testified that, on February 25, after the February 25 Amendment was

meeting ended. See NoticeofCharges atU 171.

104. First, Mr. O'Meara testifiedfalselyaboutthe mannerin which the February25,2006,

and the Conants received$413,000.Answer atIf110.

Thus,the$1,250,000in escrowwasdividedsuch that Mr. O'Mearareceived$837,000,

103. The majoritydecision held that Mr. O'Meara shouldreceive a total feeof$1,587,000.

Arbitration.Answer at1109.

102. James P. Bassett, Esq., and Jennifer A. Eber, Esq., represented the Conants at the

at the lawfirmofDevine,Millimet& BranchinManchester.Answer atH 108.

101. The arbitrationoccurredoverfivedays,November 27, 28, 29, 30, andDecember 1,2006,

and itsdistributiondeterminedthrougharbitration.Answerat^ 107.

wouldreceive$750,000as anundisputedfee,and $1,250,000wouldbeplacedinescrow

100. The ConantsandMr. O'Mearaagreedtohandlethe feedisputeasfollows:Mr. O'Meara

at1|106.

99. The parties settled the underlyingpersonalinjury action for$11.5million. Answer

Mr. Busby appearedfor Jim and AnitaConant.Answer at1f 105.

Jim and AnitaConant.Mr. Garfunkelfiledanappearanceon behalf of Mr. O'Meara, and p. 37 Page 29 of40

timeyou handedoutcopiesofExhibit37 and thetimethatTim leftthehouse,didTim

No, notabouthisfee;Day 2,p.86 (SarahSullivan'stestimony:"Q.Okay.Betweenthe

O'Mearaleft,did TimO'Meara— werethereanyfurtherdiscussionsaboutTim'sfee?A.

of the SarahSullivannegotiations,if youwill,betweenthe time of that and the time Tim

fee?A. No.");Day 2, p.45 (SeanConant'stestimony:"Q.Okay.And betweenthetime

SarahSullivan,was thereanyfurthernegotiationoragreementregardingTim O'Meara's

A. No. Q. Aftertheamended feeagreementwas initialedand copiedand handedoutby

thatnight,orthatday,didTim O'Mearaevertrytorenegotiatehisfeewiththefamily?

amended feeagreement,betweenthattimeand Tim O'Meara'sdeparturefrom yourhouse

testimony:"Q. Anita,betweenthe"tobe negotiated"agreementthatwas signed,the

furtherdiscussionofTim'sfee?A. No, therewas not.");Day 2,p.13 (AnitaConant's

aroundand Tim O'Meara'sdeparturefromyourhouseon February25,was thereany

testimony:"Q.BetweenthetimethatExhibit37 was initialedand copiedand passed

theFebruary25 Amendment was initialedand copied);Day 1,p.141 (JimConant's

witnessexceptMr. O'MearatestifiedthatMr. O'Mearadidnotrenegotiatehisfeeafter

feedemanded by Mr. O'MearaattheFebruary27 mediation. See Days 1-4(every

would form theimpressionthatonFebruary25,thefamilyhad agreedto the$2million

theFebruary25 meetingwas false.Mr. O'Mearatestifiedfalselyso thatthearbitrators

106. Mr. O'Meara'stestimonyaboutthis$2 millionagreementwiththefamilyattheendof

at1)115.

that,beforehedeparted,thefamilyagreedto hisproposalandthankedhim. Answer

more than the policy limits, he would reduce his fee to $2 million. Mr.O'Meara testified p. 38 Page 30 of40 settlement.On that samedate,January13,2006, Mr.O'Meara alsohad a conversation

109. On or about January13,2006, Mr.O'Meara had furtherdiscussionswith Mr. Davis about

performance." Answer atffl|119,120.

Conant and Sean Conant saidto Mrs.Conant:"You should have won an Emmy forthat

108. Mr. O'Meara statedthat,afterMr. Davis and theinsuranceadjustorleft thehome, Mr.

O'Meara'sArbitrationHearing testimony about theDecember 1, 2005, meeting).

shed atearwhen Anita Conant mouthed thewords "helpme" tohim. Day 4, p. 203 (Mr.

positive one for the Conants, as Mr. Davis had great sympathy for Anita Conant and even

insuranceadjustor.Answer at^ 119. Mr. O'Meara accuratelydescribedthatvisitas a

107. Mr. O'Meara describedtheDecember 1,2005,visit toHampton by Mr.Davis and an

to benegotiable.").

read itmyself because thisis the first time I'mseeingit, so —yeah,that'scorrect.It was

was to benegotiable,and that's how it was left." Did I readthatcorrectly?A. I'd have to

had signed— they had initialed— dad and him hadinitialedthedocument that said it

millionwas theagreedupon number?" And you answered,"Not reasonably,becausehe

your memory ofthatmeeting,is it possible Tim could have leftthatmeetingthinking2

"Q. Let me read this and tell meifI'mreadingitcorrectly,Todd. Question,"Based on

number or the fee? A. No, that was put to rest."); Day 4, p. 14(Todd Conant'stestimony:

agreement was to benegotiated,was there anyfurtherdiscussionabout the 2million

A. No.");Day 3, p. 88(CraigConant'stestimony:"Q. Justto beclear,afterthe fee

Exhibit37 andTim leavingthe house, did Tim ever bring up the 2millionnumber again?

ever try to renegotiate his fee? A. No. Q. Between the time you handed out copiesof p. 39 Page 31 of40

who representsCincinnati Insurance, that theConantshad agreed to settle for the policy limits.

O'Meara failed to abide by his clients' directives, he also ignored them by stating to Mr. Davis,

One ofthe objectives was whether and on what terms the case would be settled. Mr.

pursued. consultwith theclientas to the means bywhich theyare to be objectivesofrepresentation, and, as required by Rule 1.4, shall A lawyer shall abide by aclient'sdecisions concerning the

N.H. Rule Prof.Conduct 1.2(a)statesinpertinentpart:

evidence. The rulings are as follows:

HearingPanel Report and Hearing PanelReport,areestablishedby clear and convincing

The Committee finds that the following ruleviolations,ascitedin thePreliminary

II. Rulings ofLaw

Answer atH 149.

111. At all times, Mr.O'Meara was aware that he had not kepttime recordson the case.

limits.Answer atK 135.

authorityfromhis clientsto settlethecase,or to offerto settle the case,for thepolicy

110. As ofthe dateofhisDecember 8,2005,letter to Mr. Davis, Mr.O'Meara did not have

Answer atUK 128, 131.

that,if the policylimits wereoffered,neitherhe norMrs.Conantwouldacceptthatoffer.

was not authorized to settle the case for the policy limits. Mr. Conant told Mr.O'Meara

with his client, Mr. Conant. Mr. Conant made clear to Mr.O'Meara that Mr.O'Meara p. 40 Page 32 of40

representationby furtheramendingtheagreementon or aboutFebruary26, 2006, and, absent

Mr. O'Meara continuedhisattemptsto secure a twomilliondollarfee for his

negotiated"in order for the Conants toachievea result closer to Mrs. Conant's life careneeds.

SarahSullivan,inwhich thecontingencyfeeagreementwas ultimatelyamended to read"tobe

A meeting was held with Mr. O'Meara, the Conant family, as well as Craig Conant and

fee and "would win."

terminatinghis services. Mr.O'Meara told the Conantsthat he would sue for his 1/3contingency

O'Meara'srelationship with his clients had deteriorated such that the Conants discussed

materiallylimitedby his own personalinterests.FromJanuary2006 through February2006, Mr.

Mr. O'Meara had a duty to represent the Conants undercircumstancesthat would not be

third person or by a personal interestofthe lawyer. thelawyer'sresponsibilities to another client, a former client or a representationofone or more clients will be materially limited by toanotherclient; or (2) there is asignificantriskthatthe existsif(1) the representationofone client will be directly adverse concurrentconflictofinterest.A concurrentconflictofinterest A lawyer shall not represent a clientifthe representation involves a

N.H. Rule Prof.Conduct 1.7(b)providesinpertinentpart:

communications between thatdateand January24,2006.

settlefor the policylimits in his letterdatedDecember8,2005,and insubsequent

Mr. O'Meara violated his Rule1.2(a)obligations to his clients bycommunicatingan offer to

Conants would settle the case and provide each defendant with a full release.

Mr. O'Meara also told opposing counsel that in exchangefor paymentofthe policy limits, the p. 41 Page 33 of40

a violationofRule 8.4(a).

In lightofthe above ruleviolations,there is necessarilyclearand convincingevidenceof

violatetheRules ofProfessionalConduct. ItiSprofessionalmisconductfor a lawyer toviolateor attemptto

N.H. Rule Prof.Conduct 8.4(a)readsinpertinentpart:

theFebruary27 Agreement.

believethattheConants had agreed on February25 to theessentialterms ofwhat laterbecame

in this respect was false. Mr.O'Meara testified falsely in order to induce the arbitrators to

settlementfor thepolicylimits.Mr. O'Meara knew at thetime thathe testifiedthathistestimony

as having agreed to Mr.O'Meara's suggestionthat his feewould be $2millionin theeventofa

underlying fee dispute. He falsely portrayed the Conants (at the endoftheFebruary25 meeting)

Mr. O'Meara violatedRule 8.4(c)(1) when hetestifiedat thearbitrationhearingofthe

involvingdishonesty,fraud, deceit ormisrepresentation. It isprofessionalmisconductfor a lawyer toengage inconduct

N.H. Rule Prof.Conduct 8.4(c)(1)statesinpertinentpart:

Conant'slifecareneeds.

demands forcompensation and hisclients'need toachievea settlementinlinewith Mrs.

Mr. O'Meara's representationwas materiallylimited by theconflictofinterestbetween his

agreement by Mr. Conant, he threatened to withdraw as counsel on themorning ofmediation. p. 42 Page 34 of40

aggravating ormitigatingfactors." Id.{quotingDouglas'Case, 155 N.H. 613,621 (2007));

the potential or actual injury caused by thelawyer'smisconduct; and (d) theexistenceof

courtstoconsiderinimposing sanctions:"(a)the dutyviolated;(b)the lawyer'smental state; (c)

Conner's Case, 158 N.H. 299, 303 (2009). TheStandardssetfortha fourpartanalysisfor

Sanctions (2005) {^Standards") for guidance, although theCourthas not formallyadoptedthem.

The Committee looksto the American Bar Association'sStandardsfor Imposing Lawyer

503,513(2005).

The sanctionmust takeintoaccounttheseverityofthemisconduct. Coffey's Case, 152 N.H.

circumstancesindecidingthesanction." Morse's Case, N.H. (decidedJuly 20,2010).

preventingsimilar conduct in thefuture.The Court will "consider the case on its own facts and

maintaining publicconfidencein the bar, preserving the integrityofthe legalprofession,and

disbarment,theCourt willfocusnot on punishingtheoffender,but on protectingthepublic,

When determiningwhat sanctionto impose,includingtheultimatesanctionof

application for readmission could be made in less than two years.

Rules do not specify a time at which an attorney may apply forreadmission.In theory, such an

practice after a two year absence. We also note that disbarment is not "permanent," and the

We have consideredthat as a solepractitionerit will bedifficultfor Mr.O'Meara to restart his

reviewed the HearingPanelReportwith itsconclusionthat Mr.O'Meara shouldbe disbarred.

Committee is mindfulofDisciplinaryCounsel'srequest fordisbarment,and we have carefully

the appropriate sanction is a two year suspension. In making this recommendation, the

Having made theabove-referencedfindingsoffact and rulingsoflaw, we conclude that

HI. ANALYSIS p. 43 Page 35 of40

Conantswould not beadverselyaffectedbyhisconductindefenseof andpursuantto hisown

concludesthatMr. O'Mearacouldnothavereasonablybelievedthat hisrepresentationof the

argumentas "the heartofthe case." Tr. P. 7, Line19.Based on the facts, the Committee

The conflictissueunderRule1.7(b)was describedbyDisciplinaryCounselatoral

believe that the Conants had agreed to a two million dollar fee.

arbitrationthathistestimonywas false.Mr. O'Mearatestifiedfalselytoinducethearbitratorsto

Mr. Davis. We haveconcluded thatMr. O'Meara knew at thetime thathe testifiedat the

December 8, 2005, and that his clients had not authorizedsettlementas reflectedin the letter to

$15,000,000,anamountin excessof thepolicylimits,when he sent thedemand letteron

representationissueunderRule 1.2,Mr. O'Mearaknew thatthelifeplanspecifiedmore than

mentalstate.Hismentalstatemay beone ofintent,knowledge,ornegligence.Asto the

The secondprongof thefour-partanalysisrequiresanassessmentof Mr. O'Meara's

Panel.

conductinvolvingdishonestyinhistestimonyatthearbitrationhearingand beforetheHearing

settlementdiscussionsand adisputeoverthelegalfees.Finally,Mr. O'Mearaengagedin

conflictbetweenMr. O'Mearaand theConantsemergedinJanuary2006 inconjunctionwith

limits.Mr. O'Mearaalsoviolatedhisdutytoavoidoperatingundera conflictofinterest.A

Davis,representingCincinnatiInsurance,thattheConantshad agreedtosettleforthepolicy

violatedhisdutiestohisclientsashe didnotabideby hisclients'directivesby statingtoMr.

The firstprong of theanalysisrequiresus toidentifythe dutiesviolated.Mr. O'Meara

of anyaggravatingormitigatingfactorsandwhethertheyaffectthebaselinesanction. Id.

Standards § 3.0. Once the baseline sanction isdetermined,the Court then looks to the existence p. 44 Page 36 of40

whether the representation will adverselyaffect another client, and causes of a client may bemateriallyaffectedby the lawyer's own interests, or anisolatedinstanceofnegligenceindeterminingwhethertherepresentation 4:34 Admonition[reprimand]isgenerallyappropriatewhen a lawyerengagesin potentialinjuryto aclient. representationwilladverselyaffectanotherclient,and causesinjuryor materiallyaffectedby thelawyer'sown interests, orwhether the negligentindeterminingwhethertherepresentationof a clientmay be 4.33 Reprimand[publiccensure]isgenerallyappropriatewhen alawyeris conflict, and causes injury or potential injury to a client. interestand does not fullydiscloseto a clientthe possible effectofthat 4.32 Suspensionis generallyappropriatewhena lawyerknowsofa conflictof and causes serious orpotentiallyseriousinjuryto the client; or ... areadverseto the client'swiththeintenttobenefitthelawyeroranother, (a)engagedinrepresentationof aclientknowingthatthelawyer'sinterests consentofclient(s): 4.31 Disbarmentisgenerallyappropriatewhen a lawyer,withouttheinformed

isapplicable: conflictof interest with his clients, Section 4.3: Failure toAvoid ConflictsofInterest

Turningto the Standards, as toMr. O'Meara'sbreachofdutytoavoida

Strawbridge, April 25, 2006).

topayanyjudgmentinexcessoftheavailableinsurancelimits. See Exh.50 (OrderofJudge

theorderofJudgeStrawbridge,who conductedan "incamera"reviewofthedefendant'sability

$500,000.However,itwas unlikelythattheConantswouldrecoveragreateramountbasedon

was fortuitousforMr. O'MearathattheConantsrecoveredthepolicylimitsandan additional

clientrelationshipwiththeConantsand tothereputationand integrityofthelegalprofession.It

causedby Mr. O'Meara'smisconduct.Mr. O'Meara'sconductcausedharm totheattorney-

The thirdprongoftheanalysisrequiresconsiderationoftheactualorpotentialinjury

thiscase. See,Wyatt'sCase, 159 N.H. 285 (2009).

interests.Accordingly,Mr. O'Mearaknew orshouldhaveknown oftheconflictthatarosein p. 45 Page 37 of40 O'Meara's counselcontestedthedeceitcharge and took thepositionat thesanctionhearing and

The deceit charge arises initially from Mr.O'Meara'sparticipationin the arbitration. Mr.

law. any other conduct that reflectsadverselyon the lawyer's fitness to practice 5.14 Admonition [reprimand] is generally appropriate when a lawyer engages in fitnessto practicelaw. deceit, ormisrepresentationand that adversely reflects on thelawyer's knowingly engages in any other conduct that involves dishonesty, fraud, 5.13 Reprimand [public censure] isgenerallyappropriate when a lawyer and that seriously adversely reflects on thelawyer'sfitness to practice. criminalconduct which does not containtheelements listedin Standard 5.11 5.12 Suspension is generallyappropriatewhen a lawyer knowingly engages in fitnessto practice. deceit, ormisrepresentationthat seriouslyadverselyreflectson thelawyer's (b) a lawyer engages in any intentional conduct involving dishonesty, fraud, 5.11 Disbarmentisgenerallyappropriatewhen:

with regard to the deceit charge:

The following Section5.1, entitled Failureto Maintain Personal Integrity isapplicable

the Standards is asuspension.

consideration, theCommittee finds that the generallyappropriatebaselinesanctionpursuantto

unforeseen created a conflict in the midstofrepresentation stemming from a fee dispute. Upon

Conants was undertaken shortly after the accident in 2005. Rather,developmentsthat were

represent his client. Theconflictin this case was not evident when therepresentationofthe

conflict constituted either a knowing or, at best, a grossly negligent failure to competently

respect to eachofthe Rules violations. Mr.O'Meara'sfailure to acknowledge the self-evident

The Hearing Panel found that Mr. O'Meara acted intentionally and knowingly with

little or no actual orpotentialinjury to a client. p. 46 Page 38 of40 Personal injury cases handled on a contingentfees basis can be unpredictable with risks

ofhisconduct,and hisselfishmotive.

O'Meara's substantial experience in the practice of law, refusal to acknowledge wrongful nature

the circumstanceswere not likely to repeat themselves. Other aggravating factors include Mr.

violations arose from divorce and "custody" proceedings with Mr.O'Meara's former wife, and

fact to the tribunal. See O 'Meara'sCase, 142N.H. 602 (2003). The Court noted that the ethics

O'Meara's two minor children,and theCourt found thathe made falsestatementsofmaterial

SupremeCourtimposeda publiccensureforpursuingamodificationofcustodyofMr.

Mr. O'Meara's priordisciplinaryrecordisnoteworthy.In 2003,the NewHampshire

conduct,and hissubstantialexperiencein thepracticeoflaw. Standards § 9.22.

O'Meara'spriordisciplinaryrecord,hisrefusaltoacknowledgethewrongfulnatureof his

complexityof thiscase,thedelayisgivenlittleweight.AggravatingfactorsincludeMr.

number(#07-004),itappearsthatthismatterwas commenced inearly2007. Giventhe

One mitigatingfactorin thiscaseisdelayindisciplinaryproceeding.Basedon thedocket

The finalstepofthesanctionanalysisistoconsideraggravatingand mitigatingfactors.

Committee'sanalysisthattheappropriatesanctionisatwo yearsuspension.

decisionswithrespecttosettlementofacase.Applicationofthissectiondoesnotchangethe

ofDutiesOwed as aProfessional. Rule 1.2(a)requireslawyerstoabideby theirclients'

As totheviolationofRule1.2(a),themostrelevant Standard is Section7.0,Violations

an agreement. (Tr. P. 40, L. 5 - 9).

therewas amisunderstanding.Mr. O'MearaleftthemeetingwiththeConants,thinkinghe had

atoralargumentthattherewas no intenttodeceivethearbitrationpanel.Rather,he arguedthat p. 47 Page 39 of40

underlyingdisputewas resolvedthroughalternativedisputeresolution(ADR) with a Court

and Mr. O'Meararapidlydeterioratedanda conflictofinterestemerged.Ultimately,the

doesindicatethat Jim Conant was sent acopy.Thereafter,therelationshipbetweentheConants

O'Mearadidnothavehis client'sauthorizationforsuchasettlementproposalalthoughhisletter

toMr. Davis,representingtheinsurancecompany,anddemanded the policylimits.Mr.

The attorney-client relationship was derailed when Mr.O'Meara wrote in December 2005

kept fewtimekeepingrecords.

becauseif hewereterminatedtherewasthepossibilityofbeingpaid on anhourlybasisandhe

presentand futurecare.Forhispart,Mr. O'Mearadidnotwanta significantfeeto slipaway

thirdofthesettlementwithrelativelylittleeffortinvested,theywouldbecompromisingAnita's

costs were well in excessofthe insuranceavailable.They realized thatifMr. O'Meara took one-

giventheseriousnatureofAnita'sinjuriesand thelifetimecareneeded,theprojectedassociated

was not contested and that there was insuranceof$11,000,000.The Conants also learned that

Mr. O'Mearaforfeesof33.3% ofthegrossaward.He learnedalmostimmediatelythatliability

liability,and a"deeppocket"withinsurance.The Conantssignedastandardfeeagreementwith

career,ifatall.Therewas aconfluenceofthreefactors:significantdamages,undisputed

extremelyprofitableforMr. O'Mearaundercircumstancesthathappenrarelyinalawyer's

describedatoralargument.The Conants'caseevolvedquicklyand heldtheopportunitytobe

availabilityofinsurance.AnitaConantsuffereddevastatinginjurieswhichDisciplinaryCounsel

The abilityofadefendanttopayon aclaimmay be unknown and depends,forinstance,upon the

representation.Althoughaclientmay sufferseriousinjuries,theremay be issuesofliability.

toboththeattorneyand theclient.Oftenitisdifficulttoassesstheserisksatthebeginningofthe p. 48 Page 40 of40

File Mr. and Mrs. Conant JenniferEber,Esquire James P.Bassett,Esquire Maria Matthews, Esquire Michael R. Callahan,Esquire JenniferB. Sargent,DisciplinaryCounsel Distribution:

August23,2010 TJ^K^fJ^, n^^C iKl/nJf

reinstatement.

associatedwith theinvestigationand prosecutionofthismatter,with payment in fullpriorto

Hampshire Supreme Courtfor a two year suspension. TheCommittee votedtoassessallcosts

The Committee herebydirectsDisciplinaryCounsel to file aPetitionwith theNew

suspendedfrom thepracticeoflaw for two years.

For alltheabove reasons,theCommittee voted to recommend thatMr. O'Meara be

8.4(c)involvesa falsestatementto anarbitrationpanelregardingthe feedispute.

Pennsylvania. {See Order on settlement, Trial exhibit 50). Mr.O'Meara's violationofRule

supervised settlement conference facilitated by Judge Strawbridge in the U.S.DistrictCourt in