Peter G. McGrath (2011)

Order's Findings and Rulings are asfollows:

ThisOrdersupplementstheCommittee'sPreliminaryOrderofSeptember27,2010.That

MargaretH. Nelson, Chair, was recused and notpresent.

MartinandLawrenceA. Vogelman.BenettePizzimentiandThomas P.Connairwereabsent.

Cole,AlanJ.Cronheim,GeraldA. Daley,RichardH. Darling,JulieA.Introcaso,JamesR.

presentincluded:ToniM. Gray,ViceChairand Chairofthematter,SusanR. Chollet,DavidN.

On October19,2010,theCommitteedeliberatedthe above captionedmatter.Members

CommitteegrantstheRequestforReconsiderationand herebyreissuesthedecision.

absent.MargaretH. Nelson,Chairand BenettePizzimenti,ViceChairwererecused.The

JamesR.MartinandLawrenceA. Vogelman. Thomas P.Connairand RichardH. Darlingwere

matter,SusanR.Chollet,DavidN. Cole,AlanJ.Cronheim,GeraldA.Daley,JulieA.Introcaso,

toMotiontoReconsider.Members presentincluded:ToniM. Gray,ViceChairandChairof the

captionedmatterwithregardtoRespondent'sRequestforReconsiderationand BriefSupplement

On February15,2011,theProfessionalConductCommitteedeliberatedtheabove

McGrath, PeterG. advs.Wayne C. McCutcheon # 08-058

AlanJ.Cronheim Holly B.Fazzino,Admin.Coordinator Thomas P. Connair * nonattorneymember DavidN.Cole LawrenceA.Vogelman SusanR.Chollet* James R.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*

amount of$8,500.00)against P&G, LLC on theNewport property. Notice("Petitionto Attach"), seeking anattachment(securingrecoveryin the 7. Mr. Chandler draftedon behalfofMr. McCutcheon a Petitionto Attach With

Wells Chandler,Esq., to represent him in acollectionaction. 6. Having not received a payment from P&G,LLC, Mr.McCutcheon retained R.

contained the notation: "Balance past due, please remit." McCutcheon forwarded to Mr. McGrathanothercopy ofthe invoice, which 5. Having not received payment from P&G, LLC, on or about January4,2008,Mr.

was $7,000.00. invoice for services he had performed for P&G. The balance stated on the invoice 4. On or about May 18,2007,Mr. McCutcheon forwarded to Mr. McGrath an

stop all work on the project. property. As a result, on or about that date, P&G, LLC told Mr. McCutcheon to P&G, LLC terminatedthesubdivisionplans anddecidedinsteadto sell the 3. On or about May 5, 2007, after the development project did not come to fruition,

McCutcheon was to be paid with a lot or lots inreturnfor his services. Newport. P&G, LLC intended to subdivide the property and sell lots. Mr. as a surveyor with respect to certain real property that P&G, LLC owned in McCutcheon Associates,Inc.,ofClaremont,New Hampshire,toperformservices into a verbal agreement with Wayne C. McCutcheon, the ownerofWayne manager ofPeter & Gary, LLC ("P&G, LLC"), a development company, entered 2. On or aboutJanuary24,2005, Mr. McGrath, whopersonallywas amember and

liability companyofwhich he was a member and manager. involve Mr.McGrath's law firm, butconcerneda collectioncaseagainsta limited Montgomery Street, Concord,NewHampshire03301. This matter did not proceeding, Mr. McGrath operated his law office as McGrath Law Firm, 20 McGrath was admitted to practice in1988.At all times material to this 1. Mr. McGrath is an attorney licensedto practice law in New Hampshire. Mr.

belowas set forth in theStipulationareestablishedby clear and convincingevidence:

CommitteeacceptstheStipulation,as to thefactsof thismatter.Accordingly,the factsdescribed

The Respondentand theAttorneyDisciplineOffice("ADO") havestipulated,and the

I. FINDINGS OF FACT p. 3 Page 3 of11

This is torequestthe test pit, subdivision and allothermaterialsbe provided.I July25,2008, Mr. McGrath wrote: existenceofa potentialbuyer for the property. In aletterto Mr.Chandlerdated 14. On July25,2008, Mr. McGrath notifiedMr. McCutcheon and hiscounselofthe

occur onSeptember 23, 2008. 13. By Order dated June26,2008,the Courtscheduleda hearingon themeritsto

pending Petitionto Attach. "Counsel for Peter & Gary, LLC." Mr. McGrath did not file an objection to the 12. On oraboutJune 17,2008, Mr. McGrath filed anAppearance in the case as

LLC for theunpaid invoice. 11. The WritofSummons set forth Mr. McCutcheon's contract claim against P&G,

Writ ofSummons, in theClaremont DistrictCourt. 10. On or about May 30,2008,Mr. Chandler filed the Petition to Attach, along with a BY DEFAULT. UNLESS YOU ARE WILLING THAT THE PLAINTIFF HAVE JUDGMENT FILE AN APPEARANCE WITH THE CLERK OF COURT BY JULY 1,2008 EVEN IF YOU DO NOT OBJECT TO THE ATTACHMENT, YOU SHOULD BE SUBJECT TO THE PROVISIONS OF RSA 511-A:6. AND BEFORE THE ATTACHMENT, IF ALLOWED, IS MADE, YOU WILL IF YOU TRANSFER ANY PROPERTY AFTER RECEIVING THIS NOTICE, HAVE WAIVED ANY OBJECTION. IF YOU FAIL TO OBJECT BY THAT DATE, YOU WILL BE DEEMED TO 2008. HEARING, WITH THE CLERK OF COURT, NOT LATER THAN JULY 1, THE REASONS THEREFOR, TOGETHER WITH A REQUEST FOR A HEARING, YOU SHOULD FILE A WRITTEN OBJECTION, DETAILING SHOULD BE MADE. IF YOU DO WISH TO OBJECT, AND HAVE A ATTACHMENT, AND TO HAVE A HEARING AS TO WHETHER IT THIS ACTION. YOU HAVE THE RIGHT TO OBJECT TO THE SECURE ANY JUDGMENT OR DECREE THE PLAINTIFF MAY OBTAIN IN FORTH IN THE ABOVE PETITION FOR PERMISSION TO DO SO, TO THE PLAINTIFF INTENDS TO ATTACH YOUR PROPERTY, AS SET

9. The Petitionto Attach containedthefollowing"Noticeto theDefendant":

action. Agent PeterG. McGrath. Mr. McGrath,personally,was not adefendantin that 8. On May 21,2008,the Petition to Attach wasservedon P&G, LLC's Registered p. 4 Page 4 of11 ofyourrequestwithoutfurtherexplanation,communicationornegotiationwas expectationwasas representedinyourrecentcorrespondence.Also,thetardiness Your proposal to pay at the closing table is for less than what is due and what the to a payoffof$1800 from thisclosingfora releaseof hispendingattachment. Thursdayafternoon.IcontactedWayne withyourrequest,andhewillnotagree IreceivedyourproposedHUD Statementthismorningas I was out of theoffice

19. On August 29, 2008, Mr. Chandler wrote to Mr.McGrath:

thefollowingon thefaxcoversheet:"Okay for yourclient?" included a disbursement to Mr. McCutcheonof$1,800.00. Mr. McGrath included fax to Mr. Chandlera copyof anunsignedHUD Settlement Statementthat 18. At approximately4:30p.m.on thedateof theclosing,Mr. McGrathforwardedvia

17. On August28,2008,P&G, LLC soldtheNewportpropertytobuyersat aclosing.

for closing. McGrath did not apprise Mr. Chandler or Mr.McCutcheon ofthe scheduled date At some pointthereafter,a closingwas scheduledforAugust28,2008.Mr. August11,2008,letterprovidedforclosing"on orbeforeSeptember8,2008." 16. The PurchaseandSalesAgreementsuppliedbyMr. McGrathin his

on thisproperty.Enclosedis acopyof thepurchaseandsale. Notealso,we needthewetlandsdelineationdataand any othermaterialsyou have arehappytohaveyou paidattheclosingtable,butwe needthedataimmediately. perc test data. The perc test data is the workyou did and have billed mefor.We We haveanoffertobuy thelandand it isentirelyconditioneduponreceivingthe

"urgent,"Mr. McGrath wrote: toMr. Chandler,whichcontainedacaptioninboldindicatingthatthematterwas Mr. Chandlerenclosinga copyof thePurchaseandSalesAgreement.In hisletter 15. On August11,2008, Mr.McGrath,on behalfof the LLC, sent another letter to

Thank you for your cooperation. with thesale. drawings,sketchesand anythingelseyou haveon thesubdivisionthatmay assist Inanyevent,pleasesendme theentirefilewithallthetestpitinformation,maps, theclosingtable. me to bepaidby beinggivena lotofland,if wecouldsellit, Iwouldpayhim at him buy and as Iexplainedtoyou,eventhough[Mr.McCutcheon]agreedwith haveapotentialbuyerand if Icangetthispackagetohim,itwouldprobablyhelp yourclientsendmethe entirefilewithcopiesof all therequestedinformation.I understandyou areseekingpaymentforservicesrendered.Can you pleasehave p. 5 Page 5of11

Compliance. StipulationfromMr. McGrath,Mr. McCutcheonfiledan AffidavitofNon- 27. On October23,2008,havingreceivednopaymentsunderthetermsof the

did hemake thefirstmonthlyinstallmentof$1000due onOctober20,2008. 26. Mr, McGrath did nottenderthe$1,460paymentdue onSeptember30,2008.Nor

25. On September29,2008,theCourtapprovedtheStipulation.

Messrs.Chandler,McCutcheon andMcGrath,as well as awitness. toMr. McCutcheonby December20,2008.The Stipulationwas signedby 24. UnderthetermsoftheStipulation,theentireamountdue ($4,460)was to bepaid marked"Neitherparty,no costs,nofurtheractionsame cause." 5. Upon noticefrom Plaintiffthatthejudgmenthasbeenpaid,thedocketshallbe payments. 4. PeterG. McGrathagreestopersonallyguaranteetheabovedescribed permonth on the20thdayofeachmonth commencingOctober20,2008. 3.Defendanttopay thebalanceattherateofOne ThousandDollars($1,000.00) ($1,460.00)to PlaintiffbySeptember30,2008. 2.DefendanttopayOne ThousandFourHundredSixtyand00/100Dollars and 00/100 Dollars($4,460.00). 1. JudgmentforPlaintiffintheamountofFourThousandFourHundredSixty follows: NOW COME thepartiesto theaboveentitledmatterandstipulateandagreeas

containedthefollowingterms: LLC'spaymentofMr. McCutcheon'soutstandinginvoice.The Stipulation 23. On September23,2008,thepartiesenteredintoaStipulationregardingP&G,

know,notacceptable.I willholdit in myfilependingthehearingon thismatter. Ireceiveda check from Phenix TitleServices,LLC for $1,800,which is, as you 22. In a letter to Mr.McGrath datedSeptember10,2008,Mr. Chandlerwrote:

disbursementpursuantto thetermsof theAugust28,2008,closing. company for$1,800.00,writtentoWayne McCutcheonAssociates,Inc.,as a 21. On or aboutSeptember10,2008,Mr. Chandlerreceiveda checkfromthe title

the meritsofthe collection action was still scheduled for September23,2008. 20. On September4,2008,theCourtgrantedthePetitiontoAttach.The hearingon

not viewed as a good faith offer in resolutionofthis matter. p. 6 Page 6of11 8. Another defendanthas been added and he needs to benoticedofthe 7. A hearingshouldbe scheduled. The arrestwarrant should be voided. should be lifted. 6. Accordingly,thereis noneedforanarrestwarrantand thecontempt 5. Respondenthasbeenmakingpaymentsregularly. the next three months, as previouslyagreed. 4. The remainingdebt is to be paid inincrementsof$1,000per month over attached. 3. Respondentmade a paymentof $1,400on December8,2008.See 9:15 a.m. advised that he would be late due to ice on the road. Counsel appeared at 2. Ingood faith,counselforrespondentcalledtheCourtat8:25a.m.and 1. There was a contempt hearing on December9,2008. In support thereof, we provide asfollows: member, and files this Motion to Lift Default and Void Arrest Warrant. NOW COMES, Peter & Gary,LLC, pro se, by Peter G.McGrath,managing

wrote: Warrant was sentto Mr.Chandler. In theMotion toVoid Warrant,Mr. McGrath Void Arrest Warrant("Motionto VoidWarrant").A copyofthe Motionto Void 32. On or about December 16,2008,Mr. McGrath filed aMotion to LiftDefaultand

warrant forMr. McGrath's arrest. due to weather conditions.The Court entereda defaultand issueda bench the Court on the morningof thehearingto informit that he was going to be late presentin thecourtroomwhen thecasewas called.Mr. McGrath had telephoned 31. On December 9,2008,the dateofthe Show Cause Hearing, Mr. McGrath was not

the termsofthe Stipulation on September30,2008. on theNewportpropertyandapproximatedthe amountthat had been dueunder amountof $1,400.00.Thispaymentwas in additionto the$1800 paid at closing Chandler: a check written out to Wayne McCutcheon Associates, Inc., in the 30. On or aboutDecember 4,2008,Mr. McGrath forwardeda furtherpayment to Mr.

"Managing Member ofPeter & Gary LLC." 29. On November 11,2008,Mr. McGrath filed anAppearance in thematteras

on Mr.McCutcheon's AffidavitofNon-Compliance forDecember 9,2008. 28. In an Order datedOctober29,2008,the Courtscheduleda Show Cause Hearing p. 7 Page 7of11

over thenext threemonths,aspreviouslyagreed." that "the remaining debt is to be paid in incrementsof$1000 per month b. In paragraph 4 ofthe Motion to VoidWarrant,Mr. McGrath represented that"Respondent has beenmaking payments regularly." a. In paragraph 5 ofthe Motionto Void Warrant, Mr. McGrathrepresented

follows: Motion to Void Warrant which he knew or should have known were false,as 37. Mr. McGrath made statementsoffacttotheClaremont DistrictCourt inhis

law previously made to the tribunal by thelawyer...." offactor law to a tribunalor failtocorrecta falsestatementofmaterialfactor 36. Rule 3.3(a)(1) states that a lawyer"shall notknowingly...make a false statement

35. At all relevanttimesMr. McGrath had a dutyofcandorto the tribunal.

establishes theseviolationsby clearand convincingevidence:

Stipulation,as to the Rules ofProfessionalConductthat wereviolated.The Stipulation

The Respondent and the ADO have stipulated, and theCommittee accepts the

Stipulation and the case was closed. 34. On February 3,2009,Mr. McGrath made full payment due under the termsofthe

Show Cause Hearing forFebruary3,2009. McGrath's Motion to Void Warrant. On thatdate,theCourt alsorescheduledthe 33. On December 31,2008, no objection having been filed, theCourt grantedMr.

D. Grant such otherand furtherreliefas isjustand necessary. C. Void the arrestwarrant;and B. Schedule a hearing; A. Lift theContempt and lift the Default; WHEREFORE, Defendant Peter& Gary, LLC praysthatthisCourt: hearing. p. 8 Page 8of11

determined,the Court then looks to theexistenceof anyaggravatingor mitigatingfactorsand

Douglas'Case, 155 N.H. 613,621(2007)); Standards § 3.0.Afterthebaselinesanctionis

lawyer'smisconduct;and (d) theexistenceofaggravatingormitigatingfactors." Id. (quoting

(a)thedutyviolated;(b)thelawyer'smentalstate;(c)thepotentialoractualinjurycausedby the

(2009).The Standards setfortha fourpartanalysisforcourtstoconsiderinimposingsanctions:

hasnotadoptedthe Standards itlookstothem forguidance. Conner'sCase, 158 N.H. 299,303

Lawyer Sanctions(2Q05)("Standards") supporttheCommittee'sconclusion.AlthoughtheCourt

The Committee consideredthe American Bar Association's Standardsfor Imposing

in. ANALYSIS

Complainant.

representedtheADO. The Respondentwas present,aswas Mr. Wayne McCutcheon,the

Kissinger,Esquire,representedtheRespondent;JamesL. Kruse,AssistantDisciplinaryCounsel,

On October19,2010,Oral Argument was held on the issueofsanction. John S.

N.H. R. Prof.Conduct 8.4(a). Rule3.3(a)(1),there isnecessarilyclearandconvincingevidenceofa violationof 40. Because there exists clear and convincing evidence that Mr. McGrath violated

ofa violationofN.H. R. Prof.Conduct 3.3(a)(1). 39. Mr. McGrath's aforementionedconductconstitutesclearand convincingevidence

scheduleofpayment was not "as previouslyagreed" under the Stipulation. incrementsoverthe next three months, the timingof Mr. McGrath's proposed notwithstandinghis statedintentionto pay the remaining debt in$1000 monthly Stipulation contemplated complete payment by December20,2008,and that, termsofthe Stipulation. Mr. McGrath knew or should have known that the December 4,2008) only the $1400 that was due onSeptember 30,2008, under the Although Mr. McGrath had paid$1800 at the timeofclosing, he had paid (on had not been"making payments regularly" under the termsofthe Stipulation. 38. As ofDecember 18,2008,the dateofhisMotion to Void Warrant,Mr. McGrath p. 9 Page 9of11

includethreepriorwarnings: McGrath, PeterG. advs.VickieM. DesRoschers # 96-081(1997);

The Committee determined that the baseline sanction is a suspension. Aggravating factors

representationwas untrue.

The Committee was convinced that Mr. McGrath either knew or should have known that this

Respondentmade claimstotheClaremontDistrictCourtthatpaymentsweremade regularly.

andtheactualpaymentscheduletodate.Correctiveactionwasnottakenat anytime.The

actualharm tothejusticesystemby hismisrepresentationtothecourtaboutthestatusofhisdebt

Underthethirdprongof theanalysis,theCommitteefoundthatMr. McGrath caused

enforcetheagreement,and thetribunalwas harmedbymisinformationfiledwiththecourt.

The Committeefoundthat theComplainantwas harmedby theadditionalcourtproceedingto

effect on the legal proceeding. thelegalproceeding,orcausesanadverseorpotentiallyadverse remedial action, and causes injury or potential injury to a party to material information is improperlybeing withheld, and takes no statementsor documents are beingsubmittedto thecourtor that Suspensionisgenerallyappropriatewhena lawyerknows that false

is§6.12:

statewas one ofknowing,rather than one ofnegligence.As such, the applicableABA Standard

Underthe secondprong of theanalysis,theCommitteefound that Mr. McGrath'smental

Morse, LD-2009-006(N.H. July 20,2010); Conner'sCase, 158N.H. 299,303 (2009).

and the Court has made clear that thisfundamentalprinciple is not subject to discretion. See Inre

becompletelycandidand truthfulatalltimes.Thisrequirementhasbeenstressedtimeaftertime,

tribunal. The Committee discussed at great length the concept that at the very least a lawyer must

Underthe first prongof theanalysis,Mr. McGrath violatedhis duty of candortowardthe

whether they affect the baseline sanction. Id. p. 10 Page 10of11

Foralloftheabovereasons,theCommitteesuspendstheRespondentforsixmonths,

Respondentshallpayallcostsassociatedwiththeinvestigationand prosecutionofthismatter.

The Respondenthasstipulated,andtheCommitteeacceptstheStipulation,thatthe

resolved.

remainsunresolvedduringthestay,thestayshallbe extendeduntilsuchtimeasthegrievanceis

year,withexpeditedprocessingofany complaintfiledduringthestay.Ifagrievanceisfiledand

The Respondentissuspendedfrom thepracticeoflawforsixmonths,stayedforone

were mitigating factors.

determinedthatMr. McGrath'sexpressionofgenuineremorseand acceptanceofresponsibility

Respondent'sactingashisown attorneywas notviewedasamitigatingfactor.The Committee

clientorprose. O'Meara'sCase, 150 N.H. 157,160(2003).The Committeeconcludesthat

confidenceinthattruthfulnessmustbejustifiedwhetheran attorneyisappearingon behalfofa

The truthfulnessofan attorney'swordsformstheverybedrockofthejudicialsystem,and

capacity. Bruzga'sCase, 145 N.H.62,72(2000); Astles'Case, 134 N.H.602,605(1991).

individual'sbehaviorwhetherhe orsheisactingasaprivatecitizenorservinginaprofessional

shouldbe viewedasamitigatingfactor.The RulesofProfessionalConductapplytoan

The Respondentassertsthatbecausehe was actingashisown attorneyhisrepresentations

Hart # 05-077(2008), andsubstantialexperienceinthepracticeoflaw.

McGrath, PeterG. advs.John R. Samson # 04-034(2007); and McGrath, PeterG. advs.AllanE p. 11 Page 11 of11

File Wayne C. McCutcheon PeterG. McGrath, Esquire John S.Kissinger,Esquire James L. Kruse, Assistant Disciplinary Counsel Distribution:

37(3)(c).

appealthisdecisiontotheNew HampshireSupremeCourt. See also SupremeCourtRule

PursuanttoSupremeCourtRule37(A)(III)(d)(2)(D)(4)(A),thepartieshavetherightto

Tribunal, and 8.4(a):Misconduct.

stayedforoneyear,forviolatingN.H. RulesProf.Conduct3.3(a)(1):CandorToward the