John A. James Jr. (2011)

was admitted to practice in 1977. At all times material to this proceeding, Mr. James operated

I. John A. James, Jr. is an attorney licensed to practice law in New Hampshire. Mr. James

and convincing evidence establishing the following:

exception to the Finding of Fact made in that report, so the Committee finds that there is clear

including but not limited to the Hearing Panel Report. Both parties stated that they take no

In preparation for the hearing, the Committee members reviewed the record in this case,

Lawrence A. Vogelman. Thomas P. Connair and Richard H. Darling were absent.

David N. Cole, Alan J. Cronheim, Gerald A. Daley, Julie A. Introcaso, James R. Martin and

Nelson, Chair, Benette Pizzimenti, Vice Chair, Toni M. Gray, Vice Chair, Susan R. Chollet,

and deliberated the above captioned matter. The following members were present: Margaret H.

On February 15,2011, the Professional Conduct Committee (PCC) heard Oral Argument

Contingent on Compliance with Terms and Conditions of this Order SIX MONTH SUSPENSION STAYED FOR TWO YEARS

James, John A., Jr. advs. Karen Bachler #2009-006

Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole Lawrence A. Vogehnan Susan R. Chollet' James R. Martin Toni M. Gray,' Vice Chair 603-224-5828. Fax 228-9511 Julie A. Introcaso Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Richard H. Darling' Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Gerald A. Daley'

the Trust excluded her and her family.

approximately 6 months prior to her father's death. At that same time, Mrs. Bachler learned that

house into the Ferris Family Trust, a fact Mrs. Bachler learned upon her mother's death,

the payments on the mortgage. At some point after that, Mrs. Bachler's parents conveyed the

financially able, Mrs. Bachler deeded the house back to her parents who then resumed making

payments so that her parents could remain in their house. Later, when her parents became

5. Mrs. Bachler took a deed to the property and took over the mortgage, making the

Hwupshire, based on a history of conveYfu1.CeS of the property during that time.

Mrs. Bachler told Mr. James of her claim to property located at 1-3 Kenyon Road, Salem, New

Several years prior to her father's death, Mrs. Bachler's parents had fallen onto hard times, and

4. Mrs. Bachler told Mr. James about her involvement in her parents' lives and finances.

no provision for Karen Bachler or her children.

the trust was to be divided between Karen Bachler's brother and sister. The Trust expressly made

unfettered discretion in disbursing trust assets for the education ofthe grandchildren, after which

Bachler's brother, was listed as trustee on the Trust. The Trust granted the trustee virtually

3. Warren Ferris, Sr., Karen Bachler's father, created the Trust. Warren Ferris, Jr., Karen

trust matter regarding The Ferris Family Trust - 2006 (hereinafter"the Trust").

with Mr. James at his office. Karen Bachler sought to retain legal counsel to represent her in a

2. On June 15,2007, Karen Bachler, her husband, Craig Bachler, and their two children met

also admitted to the Massachusetts and Florida Bars.

his law office as James & James, 23 Main Street #2, Andover, Massachusetts 01810-3730. He is p. 3 Page 3 of22

James:

13. On Friday, August 17,2007 at 9: II p.m., Mr. Bachler sent the following email to Mr.

conversations and correspondence with Craig Bachler, with permission from Mrs. Bachler.

12. From the date Mrs. Bachler retained Mr. James, Mr. James had nearly all of his

with the Bachlers by email and they traded drafts of the proposed agreement back and forth.

Karen Bachler and her siblings that would satisfY Mr. and Mrs. Bachler. Mr. James kept in touch

II. Over the next month to six weeks, Mr. James worked to draft an agreement between

contact him to discuss the Ferris Estate matter.

Attorney Stein that day, stating that he represented Mrs. Bachler and asking Attorney Stein to

James required $3,000 up front, which Mrs. Bachler paid in full. Mr. James wrote a letter to

10. Mr. James and Mrs. Bachler did not enter into a written fee agreement. However, Mr.

pursuit of her claims.

9. Mr. James agreed to represent Mrs. Bachler in connection with any process required in

believed that he was interested in sharing some of her father's estate with her.

communicated to Mr. James that she desired to negotiate a settlement with her brother and

8. Mr. James and Mrs. Bachler discussed the prospects of settlement. Mrs. Bachler

Jr., regarding the Trust and Mr. Ferris, Sr.'s estate.

7. Mrs. Bachler informed Mr. James that Attorney Ralph Stein represented Warren Ferris,

children, one in private college and one about to go.

money in the trust within the next couple of years. She explained that her brother had two

6. Mrs. Bachler also told Mr. James that she was worried that her brother would spend the p. 4 Page 4 of22

made mention of a Ferris Family Realty Trust) in order to have it declared null and void. Mrs.

Bachler believed to be separate from Ferris Family Trust - 2006, because real estate documents

She also indicated she was going to have Mr. James challenge a second trust (a trust Mrs.

copied Mr. James on it. In it, she claimed to be a"debtor of the family trust," entitled to payment.

17. On January 27,2008, Mrs. Bachler sent an email to her sister-in-law, Betty Ferris, and

James sent copies of this correspondence to Mr. and Mrs. Bachler.

intend to probate the estate and had filed a will with the Rockingham County Probate Court. Mr.

16. On September 18, Attorney Stein confirmed to Mr. James that Mr. Ferris, Jr., did not

letter rejecting the settlement offer.

Bachler decided not to accept the offer. On September 13, Mr. James wrote Attorney Stein a

some items in settlement. Mr. James discussed this offer with Mr. and Mrs. Bachler. Mrs.

15. Sometime between August 21 and September 13, Warren Ferris, Jr. offered $45,000 plus

alter or amend the Trust. Mr. James forwarded that letter to the Bachlers on August 23.

letter indicating that there were significant legal limitations that restricted Mr. Ferris' ability to

14. On or about August 21, Attorney Stein, on behalf ofMr. Ferris, Jr., wrote Mr. James a

Monday?"

13. The next day, August 18, Mr. James emailed Mr. Bachler and asked,"Can we talk

go over details including how much money we need to put into escrow. trust. NotifY the trustee (Warren) we are suing for everything. We need to set up a call to [sic 1 influence. We want to go forward with a suit for everything including the second Prepare a strategy. Kathleen has changed her mind because of an aunt and uncles John, p. 5 Page 5 of22

mentioned above were still outstanding.

him that that he had improperly filed the legatees and devisees form, and that the other forms

23. On or about June 18, 2008, the Probate Court contacted Mr. James again and informed

pursuant to RSA 564-B:I0-1013.

the declination of Warren Ferris, Jr., named executor in the will; and 3) the certification of trust

him that he had failed to submit certain required documents: I) the legatees and devisees form; 2)

22. About two weeks after the Court notified Mr. James ofthe filing fee problem; it notified

failed to pay the correct filing fee witt'! the Petition.

filing problems to Mr. James' attention. On April 24, the Court notified Mr. James that he had

21. After Mr. James filed the Petition, the Rockingham County Probate Court brought several

certificate.

20. In his Petition, Mr. James stated the wrong date of death, even though he had the death

Trust created by Deceased which if subject to probate results in financial loss."

named executor 1 because of a potential conflict of interest. His children are beneficiaries of a

2008. He stated in the Petition, "Warren Ferris, Jr. of Salem cannot serve or continue to serve [as

19. Mr. James filed a Petition for Estate Administration ("Petition") on or about April 23,

previously contemplated bringing suit on their behalf, or that his representation had been limited.

Mr. James indicate to the Bachlers that they had to reengage him to bring suit, that he had not

18. At no time during the period from August 17, 2007 until January 27, 2008, or beyond did

Bachler stated that she told her attorney to wait until after the holidays and then file suit.

Bachler indicated that the matter should"go to Probate" and be"divided three ways." Mrs. p. 6 Page 6 of22

for Instructions. Mrs. Bachler contacted Mr. James and told him that she would attend the

30. The Probate Court sent the Bachlers notices of the original hearing date for the Motion

29. Mr. James sent a copy of the answer and objection to the Bachlers.

confusion surrounding whether there were two trusts or just one.

effort to straighten the matter out. Mr. James did not contact Attorney Stein to discuss the

the source ofthe confusion. Attorney Stein invited Mr. James to sit down and talk with him in an

trust actually existed, and that some amendments Mr. Ferris, Sr. made to the Family Trust were

answer and objection to the Petition, along with a letter expressing his opinion that no second

28. On or about August 8, 2008, Attorney Stein sent Mr. Jfulles a copy of Mr. Ferris, Jr,'s

September 15, 2008.

planned to be out ofthe country on that date. The Court rescheduled the hearing for

27. Also on August 6, 2008, Mr. James moved to continue the August 25 hearing because he

or that he provide a certification pursuant to NHRSA 564-B:IO-I013."

stated that Mr. Ferris, Jr. denied "receiving a request that he decline the appointment as executor

26. On August 6, 2008, Attorney Stein objected on behalf of his client, Mr. Ferris, Jr., and

hearing on the Motion for August 25, 2008.

Declination by the Executor or a Certificate of said trust by the Trustee." The Court scheduled a

Motion for Instructions seeking the Court's guidance"as to how to proceed in the absence of a

25. On or about July 23, 2008, Mr. James filed the documents as requested, along with a

correct documents had to be submitted by the date certain of July 20, 2008.

other deficiencies with the Petition and legatees and devisees form. The Court indicated that the

24. On or about June 27, 2008, the Probate Court again contacted Mr. James and explained p. 7 Page 7 of22 house to the trustee and his attorney. I want to see a draft by September 26, 2008. it, she is a creditor of the estate. Go forward with this. Send a notice of demand for the Start proceedings to sue for the house. Karen has proof that she has a financial interest in left repeated calls and emails in the past. I maintain a log and record of all e-mails. you, [sic 1 it took over a year before you scheduled any type of action in probate. I have I want an outline this week as to where we go from here. It is 15 months since we retained there, she could of (sic) possibly pleaded the case. was ready to fly up to NH this week to attend this hearing that"is a formality". If she was you are busy, but we are too. We retained you to represent Karen's best interest. Karen message earlier this week on what happened and you failed-to return my call. We realize not being granted. On the 15th, what transacted? Were you in court? I called and left a I left several messages for you. We received the court notice indicating that our action is

John,

35. On September 19, 2008, Mr. Bachler sent an email to Mr. James that stated as follows:

error."

missed the hearing scheduled hearing [sic 1 of September 15, 2008 as a result of a scheduling

response to Disciplinary Counsel, Mr. James says only,"My Mother died in late August, 2008. I

or the Court that he would be absent or unavailable around this time. In his December 17, 2009,

34. Mr. James' mother had died on August 24, 2008. Mr. James did not inform the Bachlers

the publication fee, since no appointment was made in the matter.

33. On September 18, the Court sent Mr. James a check for $35.00 representing a refund of

for Instructions. The Court denied Mr. James' Motion.

32. On September 15, 2008, Mr. James did not show up for the court hearing on his Motion

that she could attend the hearing. Mr. James never responded to the message and emails.

Motion for Instructions, Mrs. Bachler again told Mr. James in two emails and a phone message

31. After Mr. James continued the matter and the Court rescheduled the hearing on the

was a"formality."

hearing if necessary. Mr. James told Mrs. Bachler that she need not attend the hearing because it p. 8 Page 8 of22

the email a demand for the refund of the $3,000.00 retainer.

continued to ignore the Bachlers' emailsandphonecalls.Mr. Bachler told Mr. James to consider

41. On December 8, 2008, Craig Bachler sent Mr. James an email stating that Mr. James had

not heard from him. She demanded action.

40. On November 6, 2008, Karen Bachler sent Mr. James an email telling Mr. James she had

had not heard from Mr. James for a month.

39. On Thursday, October 23, Craig Bachler sent tvfr. Janles allother email, indicating that he

and messages left with Mr. James' support person.

38. Mr.,Bachler attempted numerous times to contact Mr. James over the month via email

and subsequent meetings.

Road house in Salem, New Hampshire that Mrs. Bachler discussed with Mr. James at their first

37. The house that Mr. Bachler referenced to in his September 19 email was the 1-3 Kenyon

concerning the execution of the deed. Is this what you are talking about? the house, what do you mean? I know that you have discussed in the past irregularities every morning but available in the afternoons. When you say that you wanted to sue for Just opened [the September 19] email. Called you and left a voice mail. I am in Court

36. On September 23,2008, Mr. James emailed Mr. Bachler and said:

I look forward to hearing from you. p. 9 Page 9 of22

cooperate would result in a referral to Disciplinary Counsel for a Rule 8.1 (b) violation. The letter

from him, enclosing a copy of the March 18 letter, and reminding him that his failure to

47. On May 4,2009, the ADO sent Mr. James another letter indicating that it had not heard

46. Mr. James did not respond to Mrs. Bachler's docketed complaint.

(Emphasis in the original) RULES OF PROFESSIONAL CONDUCT HAVE BEEN VIOLATED. RULE 8.1 (b). RESULT IN THE SCHEDULING OF A PUBLIC HEARING AND IN A FINDING THAT THE OFFICE. THE F AlLURE TO COOPERATE WITH A DISCIPLINARY AGENCY COULD IT IS EXPECTED THAT YOU WILL PROMPTLY RESPOND TO THE REQUESTS OF THIS Chenell Drive, Suite 102, Concord, NH 03301. See Supreme Court Rule 37 A(II)(a)(5)(C). days of the date 0 this letter to James L. DeHart, General Counsel, Attorney Discipline Office, 4 You are required to submit an original and two copies of your reply [to the complaint] within 30

The letter included the following language:

complaint. Mr. DeHart enclosed a copy of Mrs. Bachler's grievance with his letter to Mr. James.

ADO, notified Mr. James in writing that he had docketed Mrs. Bachler's grievance as a formal

45. In a letter to Mr. James dated March 18,2009, James L. DeHart, General Counsel to the

accordance with all rules and the ADO docketed her complaint.

rules for filing. On March 9, 2009, Mrs. Bachler filed her complaint again, this time in

(ADO). The ADO could not docket it because Mrs. Bachler did not file it in accordance with the

44. On February 1,2009, Mrs. Bachler filed a complaint with the Attorney Discipline Office

spent the trust money by that point.

43. Mrs. Bachler did not pursue any further legal action. She believed that her brother had

refund, they would file fraud charges.

had ignored Mr. Bachler's email of two weeks ago, and that if Mr. James did not send the file and

42. On December 19, 2008, Mr. Bachler sent Mr. James an email telling Mr. James that he p. 10 Page 10 of22

fact, meet to discuss the complaint and the file on April 2, 2010.

discussion, Ms. McCafferty and Mr. James scheduled a meeting for April 2, 2010. They did, in

vacation, which is why he did not respond to Ms. McCafferty's letter sooner. After some

52. Mr. James finally contacted the ADO on March 22,2010. Mr. James said he had been on

but had not heard from him.

to speak with him. Ms. McCafferty mentioned that she had left a voice mail on March 15,2010,

meeting with her. On March 17,2010, Ms. McCafferty wrote a letter to Mr. James, again asking

51. By mid-March, Mr. James still had not followed up with Ms. McCafferty to schedule a

on or about December 17, 2009.

time to speak with Ms. McCafferty. Mr. James filed a three-page written response and exhibits

in speaking with him. Shortly thereafter, Mr. James contacted the ADO in an effort to set up a

James a letter explaining that she was reviewing the file in the Bachler matter and was interested

50. On December 2,2009, former Disciplinary Counsel Landya B. McCafferty sent Mr.

grievance on February 4,2009.

Massachusetts Office of the Bar Counsel. The Massachusetts Office of Bar Counsel received the

49. Mrs. Bachler filed the identical grievance (dated February I, 2009) with the

to a disciplinary authority and on the merits of the complaint."

voted to refer the matter to Disciplinary Counsel for further action on both the failure to respond

Mr. James on a letter informing Disciplinary Counsel that"the Complaint Screening Committee

48. On June 11,2009, Martha Van Oot, Chair of the Complaint Screening Committee, copied

original) Mr. James did not respond.

asked Mr. James to"[p]lease give this matter your immediate attention." (Emphasis in the p. 11 Page 11 of22

breached his duty to pay attention to details and schedules necessary to assure that he completed

four months after Mrs. Bachler directed him to seek legal recourse beyond settlement. Mr. James

promptness when he delayed filing any action, and ultimately filed an ineffective action, almost

while representing her. Mr. James breached his duty to act with reasonable diligence and

Mr. James owed a duty to Mrs. Bachler to act with reasonable diligence and promptness

conduct in these respects violates ofN.H. R. Prof. Conduct 1.l(b)(3), 1.1(b)(4) and 1.1(b)(5).

The facts above having been proven by clear and convincing evidence, Mr. James'

accordance with the rules and procedures of the Probate COlli'i.

file the Petition for Estate Administration, including failing to file fees and documents in

ineffective legal action in Mrs. Bachler's case, and then made repeated errors while attempting to

with no avoidable harm to Mrs. Bachler's interest. Mr. James breached this duty. He took

attention to details and schedules necessary to assure that he completed the matter he undertook

Bachler a duty to properly prepare it along with all accompanying documents, and to pay

result she sought. Once Mr. James filed the Petition for Estate Administration, he owed Mrs.

cognizable basis for bringing an action that allowed Mrs. Bachler to gain the legal relief and

bring those areas to Mrs. Bachler's attention. Mr. James had the duty to formulate a real and

Mr. James owed Mrs. Bachler a duty to identifY areas beyond Mr. James' competence and

establishes that Mr. James violated the following Rules of Professional Conduct:

The Committee finds, by clear and convincing evidence, that the record in this matter

II. RULINGS OF LAW p. 12 Page 12 of22

2009 letter, referring the matter to Disciplinary Counsel. By letter dated December 2, 2009,

attention to the matter. The Complaint Screening Committee copied Mr. James on its June II,

Mr. James on May 4,2009, reminding him of the complaint and asking for his immediate

R. 37 A(II)(a)(5)(C), Mr. James was required to respond within 30 days. The ADO also wrote to

complaint was enclosed. The March 18 letter informed Mr. James that, pursuant to N.H. Sup. Ct.

that it had docketed a complaint against him based upon Mrs. Bachler's allegations. A copy of the

In its March 18, 2009 letter, the Attorney Discipline Office (ADO) informed Mr. James

conduci in ihese respects violates N.H. R. Prof. Conduct 1.4(a)(3) and 1.4(a)(4).

The facts above having been proven by clear and convincing evidence, Mr. James'

the status of Mrs. Bachler's case.

via email and telephone from September 2008 through February 2009, seeking information about

case. Mr. James breached his duty by neglecting to respond to Mr. and Mrs. Bachler's inquiries

owed Mrs. Bachler a duty to promptly respond to reasonable requests for information about the

the status of legal steps he had taken, was taking, and planned to take on her behalf. Mr. James

Mr. James owed Mrs. Bachler a duty to keep Mrs. Bachler reasonably informed regarding

conduct in these respects violates of N.H. R. Prof. Conduct N.H. R. Prof. Conduct 1.3.

The facts above having been proven by clear and convincing evidence, Mr. James'

the matter.

appear at the September 15, 2008 Motion for Instructions hearing, causing the Court to dismiss

the matter he undertook with no avoidable harm to Mrs. Bachler's interest when he failed to p. 13 Page 13 of22 The evidence shows that Mr. James's conduct violated certain duties to his client, and

(2007)); Standards §3.0.

existence of aggravating or mitigating factors." Id. (quoting Douglas' Case, 155 N.H. 613, 621

mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the

analysis for courts to consider in imposing sanctions:"(a) the duty violated; (b) the lawyer's

to them for guidance. Conner's Case, 158 N.H. at 303. The Standards set forth a four part

Court has not adopted the ABA Standards for Imposing Lawyer Sanctions ("Standards"), it looks

account the severity of the misconduct." Coffey's Case, 152 N.H. 503, 513 (2005). Although the

in the future." E.g., Conner's Case, 158 N.H. 299, 303 (2009). "The sanction must take into

confidence in the bar, preserve the integrity ofthe legal profession, and prevent similar conduct

The purpose of the Court's disciplinary power is"to protect the public, maintain public III. ANALYSIS

would necessarily constitute a violation of N.H. R. Prof. Conduct 8.4(a).

Anyone of the above alleged rule violations, proven by clear and convincing evidence,

these respects violates of N.H. R. Prof. Conduct 8.1(b).

The facts having been proven by clear and convincing evidence, Mr. James' conduct in

demand for information from a disciplinary authority.

Mr. James she was actively reviewing the file represents a knowing failure to respond to a lawful

Mr. James' failure to respond to the ADO's correspondence until the prosecutor informed

April 2010 to meet with Disciplinary Counsel face-to-face.

like to speak with him. Only then did Mr. James respond to the ADO, and again waited until

Disciplinary Counsel wrote to Mr. James explaining that she was reviewing the file and would p. 14 Page 14 of 22

4. Substantial experience in the practice of law. comply with Rules or Orders of the disciplinary agency, and 3. Bad faith obstruction of the disciplinary proceeding by intentionally failing to 2. Multiple offenses; 1. Prior disciplinary offenses;

found the following factors exist:

However, there are aggravating factors to be considered as well. The Hearing Panel

by Mr. James' remorse at the time of his oral argument.

remorse when he appeared before the Hearing Panel and the Committee was similarly impressed

conununications with his client and the court. Finally, Mr. James appeared to be sincere in his

Bachler likely caused Mr. James' distress, leading to his failure to act with respect to

Additionally, the fact that Mr. James' mother passed away during his representation of Mrs.

The Committee agrees that no dishonest or selfish motive for Mr. James' misconduct is apparent. 3. Remorse. 2. Personal or emotional problems, and 1. Absence of a dishonest or selfish motive,

following be considered as mitigating factors:

case as those were the focus of the parties' arguments. The Hearing Panel suggested that the

The Conunittee discussed the mitigating and aggravating factors to be considered in this

disciplinary process.

profession as a result of the violations found, including the lack of cooperation with the

·articulable financial harm as a result Mr. James' conduct, but there was serious injury to the

of his violations. Regarding any actual or potential injury, Mrs. Bachler did not suffer any

also a duty to the profession. It is also clear that Mr. James acted knowingly with respect to each p. 15 Page 15 of22

fundamental error. Again, there does not appear to be a selfish or dishonest motive behind this

here, Mr. James failure to seek assistance from or consultation with others was another

additional expertise or assistance in this case, but whatever the specific cause of his misconduct

practitioner. He admitted that he never reached out to other attorneys when he could have used

Mr. James indicated that he has always practiced law in a small firm or as a sole

probate matter, is also a significant concern.

Obviously, his lack of competence in the area of probate law, at the time he agreed to handle a

representation, if left unaddressed, will likely result in further incidents of misconduct.

assure adequate and timely communication with clients. This dilatory approach to

fee agreement in this case, few time records and a lack of reliable office practices in place to

during that time. It is of particular concern to the Committee that there appears to have been no

thirty years, and the nature of the legal practice and law office practice management has evolved

The Committee recognizes that Mr. James has been a practicing attorney for more than

lack of cooperation with the disciplinary process is troubling.

with Disciplinary Counsel suggested an element of bad faith, and the Committee agrees that his

the Hearing Panel found that the delays and non-responsiveness ofMr. James in his interactions

be considered as an aggravating factor. The reason for his lack of cooperation is unknown, but

offenses." Finally, Mr. James' unusual reluctance to cooperate with Disciplinary Counsel must

number of rules by engaging in various separate and distinct acts giving rise to"multiple

received a sanction of public reprimand on in March, 2002. In this matter, Mr. James violated a

Mr. James has been found to have previously violated the rules, specifically Mr. James p. 16 Page 16 of22

showed a persistent lack of cooperation on the part of the Respondent in addressing complaints

Massachusetts finding of misconduct. Disciplinary Counsel expressed a belief that this evidence

Mr. James did not participate in a hearing regarding reciprocal discipline based on the

Disciplinary Counsel also presented information regarding a Florida proceeding where

admonition on record for Mr. James in Massachusetts.

participate in the Massachusetts Office ofthe Bar Counsel investigation. There is a prior

mortgage discharge on behalf of a client. That order also states that Mr. James failed to

that the prior misconduct in Massachusetts relates to the Respondent's failure to record a

the Hearing Panel, were presented to the Committee. Specifically, counsel provided evidence

this recommendation, additional details regarding Mr. James's prior misconduct, not provided to

rehabilitation, public protection and continuing education, including the MPRE. In support of

would more accurately reflect the severity of the offenses, and allow for a greater period of

from the practice of law for one year. It was argued that this lengthier period of suspension

Disciplinary Counsel suggested to the Committee that Mr. James should be suspended

adversely impact the cases of current clients.

and public protection. Rather, such a sanction serves only to punish the respondent and could

a limited amount of time fails to further the goals of attorney discipline, primarily rehabilitation

in part, with the argument put forth by Disciplinary Counsel that a period of suspension for such

matter was a suspension from the practice of law for a period of 45 days. The Committee agrees,

The Hearing Panel recommended to this Committee that an appropriate sanction in this

mismanagement of his practice.

misconduct, rather the violations here are the results of ineptitude, oversight, avoidance, or p. 17 Page 17 of22

improve his practice. He feels that an admonition would be adequate incentive to improve his

profession and his willingness to accept a sanction that could help him to move forward and

Finally, he spoke about his good fortune in being a member of the bar, his pride in his

procrastination and poor communication.

represented that he has taken various steps to address his personal issues leading to

knows he needs additional education ifhe is to practice in the area of probate law, and he

of particular legal issues and court procedures. Mr. James made it clear to the Committee that he

bar when facing personal or practice management issues, as well as questions about the substaIice

counsel. Mr. James also expressed regret for not having consulted with fellow members of the

He claimed to have learned the importance of being forthcoming and cooperative with bar

law practice, ultimately resulting in allegations and findings of misconduct.

mother and a contentious divorce, which he suggests contributed to his lack of diligence in his

Mr. James briefly described two events in his personal life, namely the death of his

disciplinary matters.

own handling of the complaint, noting that inaction was not an effective way to resolve

lack of cooperation throughout the disciplinary process. He acknowledged bewilderment at his

expressing remorse for his conduct in the handling of the Bachler matter and for his inaction and

Mr. James argued for a less severe sanction of admonition. He began his presentation by

those cases, was another aggravating fact to consider in imposing a sanction in this case.

about the existence of these prior proceedings, and his lack of cooperation with bar counsel in

before discipline boards. It was also suggested that his failure to enlighten the Hearing Panel p. 18 Page 18 of22

confidence in the Bar would be maintained, and similar, future misconduct by Mr. James could

Therefore, as the Committee believes that the public would be protected, public

conditions set forth below, the period of suspension would be warranted and could be imposed.

professional standards. Obviously, should the Respondent fail to comply with any of the

law practice management techniques and personal work habits that will consistently meet

opportunity to improve his professional competence and effectiveness as a lawyer by instituting

improve Mr. James' law practice. A two year stay affords the Respondent an adequate

stayed for two years under a series of terms and conditions designed to closely monitor and

As a result, the Committee imposes a six month suspension from the practice of law,

James has been practicing law.

to establish an ongoing pattern of misconduct, particularly considering the length of time Mr.

personal or illegal motive. Similarly, there doesn't appear to be sufficient evidence on the record

for one year seems unduly harsh for violations that do not involve dishonesty, deception or a

resolution of this and other disciplinary matters. However, a suspension from the practice of law

response to the violations and the Respondent's persistent refusal to cooperate in the timely

can be avoided. Accepting the aggravating factors presented, a suspension seems appropriate in

through the institution of useful modifications to his business practices so that future misconduct

protection by allowing Mr. James an adequate opportunity for reflection and rehabilitation

It is the desire of this Committee to impose a sanction that will provide meaningful public

family.

practice and that suspension would be unnecessarily punitive, adversely affecting himself and his p. 19 Page 19 of 22

determination, Disciplinary Counsel may conduct such further investigation, if reported event is a material violation of the terms of this Order. In making that I (e), Disciplinary Counsel shall review that report and determine whether the 2. Ifthe consultant/ mentor reports issues or concerns in accordance with Paragraph

law practice, as described herein. 1. Mr. James shall agree to, and pay any costs associated with, the monitoring of his

be prevented ifhe complies with the conditions of the stay, as follows: p. 20 Page 20 of 22 Committee.

request, Mr. James shall be entitled to an evidentiary hearing and review by the the stayed six month suspension in this case. If Disciplinary Counsel makes such a provide a basis for a request by Disciplinary Counsel that the Committee impose ofthe Rules of Professional Conduct that may result from that complaint may processed by the ADO on an expedited basis. Any final adjudication of a violation Committee, and is within the period of the two year stay, that complaint will be year stay that arises out of events that postdate adoption of this Order of the 4. Ifthe ADO receives a complaint against lv'1I. James during the period of the two imposition of the six month suspension in this case. Professional Conduct that may result from that complaint will not be a basis for in the ordinary course of business. Any finding of a violation of the Rules of events that predate this Order of the Committee, that complaint will be processed 3. If the ADO receives a misconduct complaint against Mr. James that arises out of imposition of the stayed suspension is warranted. have the burden of proof by a preponderance of the evidence to establish that suspension. The Committee's decision shall be final. Disciplinary Counsel shall and Mr. James ten (l0) minutes to address the issue of imposition of the stayed Unless waived, oral arguments will be conducted to allow Disciplinary Counsel requesting imposition of the six month suspension should be granted or denied. request for such hearing, the Committee shall determine whether the motion argument. Following an evidentiary hearing (if requested), or the denial of a The Committee shall rule upon any request for an evidentiary hearing and for oral evidentiary hearing thereon, and to request oral argument before the Committee. right to respond in writing to Disciplinary Counsel's motion, to request an Committee impose the stayed six month suspension. Mr. James shall have the violation, a motion may be filed with the Committee requesting that the event. If Disciplinary Counsel believes that the reported event is a material Disciplinary Counsel with any additional information regarding the reported any, that he or she deems appropriate. Mr. James shall have the right to provide p. 21 Page 21 of22

prosecution, and publication of this matter.

Mr. James shall reimburse the Committee for all cost associated with the investigation,

VI. COSTS Communication, 8.1 (b) - Lack of Cooperation and 8A(a) - Misconduct, General Rule. Conduct: l.l(b)(3), 1.1(b)(4), 1.1(b)(5) -Competence:, 1.3 -Diligence, 1.4(a)(3), 1.4(a)(4)­ terms and conditions indicated above, for violating New Hampshire Rules of Professional suspended for six months, stayed for two years contingent on Mr. James' compliance with the For all ofthe above reasons, the Committee hereby orders that John A. James Jr. be V. CONCLUSION

shall be communicated to the Committee for its consideration. period, he shall notifY Disciplinary Counsel immediately, aild such infonnation 7. IfMr. James should, for any reason, cease to practice law during the two year lesser suspension is appropriate under the facts presented. discretion to impose a suspension of less than six months if it finds that such accordance with the applicable provisions of this Order, it shall have the finds that a basis for imposition of the stayed suspension has been proven in 6. In any proceeding to impose the six month stayed suspension, if the Committee disposition of that complaint. complaint under paragraph 4 hereof must be initiated within 30 days of final the stay. Any request for imposition of the stayed suspension that is based upon a complaints or motions are concluded after the expiration of the two year period of imposition of the stayed six month suspension even if the proceedings on such motions are filed during the two year period, they can provide a basis for seeking motions pending pursuant to paragraphs 2 or 4 of this Order. If such complaints or suspension shall be permanently stayed provided that there are no complaints or 5. At the conclusion of the two year period described herein, the six month p. 22 Page 22 of22

File John A. James, Jr., Esquire cc: Jennifer B. Sargent, Disciplinary Counsel

37(3)(c).

appeal this decision to the New Hampshire Supreme Court. See also Supreme Court Rule

Pursuant to Supreme Court Rule 37(A)(IJI)(d)(2)(D)(4)(A), the parties have the right to