Philip A. Brouillard (2011)

Brouillardoperated his law office, as a solepractitioner,at in1981. At all times relevant to this proceeding, Mr. New Hampshire. Mr. Brouillard wasadmittedto practice 1. Mr. Brouillardis anattorneylicensedtopracticelaw in

as set forth in the Stipulation are established by clear and convincing evidence:

in this matter, and the Committee accepts the Stipulation. Accordingly, the facts described below

The Respondent and the Attorney Discipline Office (ADO) havestipulatedas to the facts

theparties.

For FinalRuling and approved theStipulationas to the Facts and RuleViolationssubmittedby

The Committee granted the Joint Motion to Permit WaiverofFormal Proceedingsand

notpresent.Thomas P. Connair and Richard H. Darlingwere absent.

James R. Martin and Lawrence A Vogelman. BenettePizzimenti,Vice Chair was recusedand

Chair,Susan R. Choilet,David N. Cole, Alan J.Cronheim, Gerald A. Daley,JulieA. Introcaso,

captionedmatter.Members presentincluded:Margaret H. Nelson,Chair,Toni M. Gray,Vice

On February15,2011,theProfessionalConduct Committee deliberatedtheabove

Brouillard,PhilipA. advs.John J.Moynihan # 10-003

Alan J. Cronheim Holly B. Fazzino,Admin.Coordinator Thomas P.Connair * non attorneymember David N. Cole Lawrence A.Vogelman Susan R. Choilet* James R. Martin Toni M. Gray,*Vice Chair 603-224-5828 ♦ Fax 228-9511 Julie A. Introcaso BenettePizzimenti,Vice Chair Concord, New Hampshire 03301 Richard H. Darling* Margaret H. Nelson, Chair 4 Chenell Drive, Suite102 Gerald A. Daley*

8. The divorce decree incorporated theparties'Permanent

Moynihan having primary physical custody. were awardedjointlegal custodyofthechildren,withMs. 7. Pursuant to the divorce decree, Mr. and Ms.Moynihan

in Hampstead. Street residence. Mr. Moynihan lived at a nearbylocation Moynihan and thechildrencontinuedto live at theSummer Hampstead, New Hampshire. Followingthedivorce,Ms. 6. The maritalhome was locatedat9 Summer Street,

daughter. 2003. They have twominor children,a sonand a younger 5. The Moynihans were divorced by decree dated May 27,

disclosureorder issued by theBrentwood Family Court. addressthe issuewhether Mr. Brouillardviolateda non Supreme Court alsoreferredthematterto theADO to 4. By letterofFebruary19,2010,theNew Hampshire

disclosureorder issued prior to hisinvolvementin the case. alleged violationofa BrentwoodFamily Courtnon on behalfofMs. Moynihan in June2009, as wellas his pleadingpracticeafterenteringthedomestic relationscase 3. Mr. Moynihan's complaintfocuses on Mr.Brouillard's

No.618-2002-DM-00206). relationsproceedingin theBrentwood Family Court (Case Moynihan's ex- wife, Ann Marie Moynihan, in adomestic ProfessionalConduct in thecourseofrepresentingMr. BrouillardviolatedtheNew Hampshire Rules of Hampshire AttorneyDisciplineOfficeallegingthatMr. New Hampshire, filed acomplaintwith theNew 2. On January 17,2010,John J.Moynihan ofHampstead,

16 Academy Street, Laconia, NewHampshire. p. 3 Page 3 of30

was scheduled for August21,2007. shouldbeplacedinMr. Moynihan.A temporaryhearing Gilford, primary residential responsibilityfor the children Moynihan proposedthatifMs. Moynihan moved to move was not in the bestinterestsofthe children.Mr. Moynihan had made thedecisionunilaterally,and that the major decisionaffectingtheirhome andschooling,that Ms. that relocationof the children'sprimaryresidencewas a 13. Mr. Moynihan argued in his Motion to PrecludeRelocation

Relocation) in the Brentwood Family Court. Order PrecludingRelocation (Motion toPreclude Petitioner'sMotion to Bring Forward, Modify and for an mediate theirdifferences.Accordingly,Mr. Moynihan filed Moynihan planned. The parties did not undertake to 12. Mr. Moynihan disagreed with the relocation that Ms.

Hampshire. Moynihan had purchasedon Watson Road in Gilford,New children would berelocatingto acondominiumthat Ms. Moynihan that, effective September9,2007,she and the residential responsibility for the children, notified Mr. 11. On July11,2007, Ms.Moynihan,who had primary

court. any disagreementsbeforeresortingto filing pleadings in the parties agreed to make a good faith effort to mediate Modification to Permanent Stipulations/Divorce Decree, 10. Pursuant to a December30,2004,Stipulation on

represented by Jennifer Lemire, Esq. by Steven Shadallah, Esq., and Ms. Moynihan was 9. At the time of thedivorce,Mr. Moynihanwas represented

district." residenceto alocationoutsideof their presentschool transportationif she"relocate[s]thechildren'sprimary visits, except that Ms. Moynihanwould share in Moynihan would provide all transportation from and to all daysprior to thechange.The partiesalsoagreedthatMr. p. 4 Page 4 of30 to Mr.Moynihan's motion forcontempt and crossmotion 20. Ms. Moynihan, through Ms. Struffolino, filed anobjection

behalfofMs. Moynihan until June 2009. proceedingatthispointand did notenteran appearanceon Struffolino,Esq. Mr. Brouillard was notinvolvedin the 19. Ms. Moynihan was represented at this time by Michele

visiting rights to which he was entitled. that Ms. Moynihan was not allowing Mr. Moynihan the Moynihan'splan to relocate the children and complained Ms. Moynihan in contempt. Mr. Moynihan rejected Ms. 18. On January 3, 2008, Mr. Moynihanfiled a motion to hold

StrikeGAL's Report. Shadallah,filedPetitioner'sMotion to Remove GAL and to 17. On December 3,2007,Mr. Moynihan, by and through Mr.

and felt divided loyalty and pressure from the situation. child, theparties'son, wanted things to remain the same ability to parent full-time." Mr. Weeks found that theolder about Mr.Moynihan's"anger control as it might affect his hiscurrentobservations,Mr. Weeks expressedconcern NarcissisticPersonalityDisorder.Based on thathistoryand been diagnosedwith AttentionDeficitDisorderand benefited from thedevelopmentofcoping skills, he had lackofco-parenting."Further, while Mr. Moynihan had poor andconfrontationaland that there was a"pronounced communicationsbetween Mr. and Ms. Moynihan had been 16. In his report, Mr. Weeks noted that thepost-divorce

currentschool semester. thatshe be allowed to move to Gilfordatthe end ofthe Moynihan remain as the primary parent for thechildrenand childrento Gilford. Mr. Weeks recommended thatMs. preliminary report regarding the proposed relocationofthe 15. On November 20,2007, the GAL, Nathan Weeks, filed a

minor children." to discuss the specificsofany relocationdispute with the furtherhearing,the Court orderedthat "the parties are not examine the proposedrelocationof the children. Pending (LaFrancois,J.) appointedaguardian ad litem (GAL)to 14. Followingthe hearing on August21,2007, the Court p. 5 Page 5 of30

to the Watson Road condominium inGilford. Summer Streethome inHampstead and moved thechildren Court'sorderofJune 5,2008,Ms. Moynihan rented out the motion forcontempton grounds that,notwithstandingthe 24. On or about July 11,2008,Mr. Moynihan filedanother

should continue as the primary residential parent. with therecommendation ofthe GAL that Ms.Moynihan seventh grader, to remain in Hampstead. The Court agreed children. The Court noted theson'sstatedpreference,as a relocationor thata move was inthebestinterestsofthe Moynihan had not shown a legitimate purpose for the motion precludingrelocationon grounds that Ms. requests and granting the motion. The Court granted the and issued an order on June5,2008,ruling on various hearings on Mr.Moynihan's Motion toPrecludeRelocation 23. The Court(LeFrancois, J.)conductedseveral daysof

behavior, and his historyofparenting. about Mr.Moynihan's personalitydisorder, hiscurrent remain with Ms. Moynihan and reiterating his concern hisrecommendation that primary careofthe childshould following his interviewoftheson'scounselor, confirming 22. On February 11,2008,Mr. Weeks filedanotherreport

remove Mr. Weeks as the GAL and to strike his report. communications. The Court alsodenied the motion to comply with the orderofAugust21,2007,prohibiting such relocating the children. The Court cautioned the parties to evidencethat both parties werecommenting on the issueof participateinco-parentcounselingand there was some Court found that neither party had made an effort to was having them temporarily stay in Gilford. Further, the that Ms. Moynihan had not yet relocated the children, but The Court denied the parties' prayers for relief. It found (LeFrancois, J.) issued an order dated January16,2008. 21. Followinga hearing on January15,2008,the Court

Moynihan discussed their "legalaffairs"with the children. with Ms. Moynihan. Ms. Moynihanclaimedthat Mr. his alleged useoftheir son as aconduittocommunicate Moynihan's conduct inviolationofthedivorcedecreeand for contempt. Ms. Moynihan complained about Mr. p. 6 Page 6 of30 mattertransferredand consolidatedwith the domestic Moynihan's counsel and successfully moved to have the date. Mr. Shadallah entered his appearance as Mr. Moynihan and scheduled the matter for hearing at a later Court issued a temporary restrainingorderagainstMr. home on a daily basis, engaging inharassingbehavior. The Mr. Moynihan had been walking by the former marital Moynihan. Ms. Moynihan, appearing pro se, claimedthat a stalkingpetition in Plaistow District Court against Mr. 28. On or about October30,2008,Ms. Moynihan had also filed

children. interest to allow Mr. Moynihan greater access to the personalitydisorder,it was not in thechildren'sbest unconstitutional;and that,consideringMr. Moynihan's childrento attenda certainschool districtwas Moynihan's stalking behavior; that an ordercompellingthe had avoided the Hampstead residence becauseofMr. defend herself against Mr. Moynihan's allegations; that she Moynihan claimed that she was denied a fair opportunity to represented at the time by Katherine Stearns, Esq. Ms. ReconsiderationoftheOctober 29, 2008, order. She was 27. On November 11,2008, Ms. Moynihan filed aMotion for

subjectto further review by the GAL. Moynihans equal residentialresponsibilityfor thechildren, provisionsofan alternativeparenting plangrantingthe legal residence in Hampstead. The Courtadopted indifferentlocationsand did not maintain an actualand Court'sorderofJune 5, 2008, because she kept thechildren 29, 2008, the Court found Ms. Moynihan incontemptofthe pending issueson October 28,2008. In itsorderofOctober 26. The Court (LeFrancois, J.) held a further hearing on

parentingplan. Court anticipatedimplementationofan alternative Moynihan did not resume residency in Hampstead, the contempt for relocating the children. In the event Ms. in abeyance the questionofMs. Moynihan'salleged continueattending the Hampstead schools, theCourtheld residency in Hampstead so as to permit thechildrento Moynihan's representationthat she intended to resume with respect to pending issues. Based in part on Ms. 25. On July 22,2008,the Court (LeFrancois, J.) held a hearing p. 7 Page 7 of30

the children. reckless,unstable,and aggressivebehaviorwas harmfulto allegationsoffact and claiming that Mr.Moynihan's to Mr.Moynihan's Motion to Modify,denying thevarious 33. On behalfofMs. Moynihan, Ms. Stearns filed anobjection

livewith Mr. Moynihan. unnerved,anxiousand confused," andexpresseda desire to Moynihan's parentingrights; and thechildrenwere "upset, inHampstead; she regularly interfered with Mr. violate theCourt'sorder regarding thechildren'sresidence custodyofthe children because Ms.Moynihan continuedto Mr. Moynihan claimed that he should beawarded primary Modify ResidentialResponsibility(Motion to Modify). 32. On February5, 2009, Mr.Moynihan filed aMotion to

New Hampshire Supreme Court. unsuccessful in her Rule 7 Appealofthe dismissal to the October29,2008, order. Ms. Moynihan was also denied Ms.Moynihan's Motion forReconsiderationofthe contempt issue. It dismissed thestalkingpetitionand 31. The Court made no further findings withrespectto the

sister'shouse in Boxford, Massachusetts. were being"shuffled"from Gilford to Ms.Moynihan's apartmentat the former marital home; andthatthechildren very little time staying in a smallone-bedroom in-law condominium; that Ms. Moynihan and the children spent former maritalhome and moved to the Gilford elaboratedon evidence that Ms. Moynihan had rented the 30. With respect to the issue of contempt, Mr. Moynihan

she owned in Gilford, New Hampshire. the same time spending time with the children at property marital home as the "legal and actualresidence,"while, at alsorepresentedthat shecontinuedto maintaintheformer Stearns, testified about the alleged stalking. Ms. Moynihan Moynihan, appearing at first pro se, and later with Ms. were convened on January 29, 2009.(LeFrancois,J.) Ms. 29. Hearings on the stalking petition and the issueofcontempt

relations case pending in Brentwood Family Court. p. 8 Page 8 of30 oftheGAL's motion to suspend. Mr.Brouillardfurther acknowledged that Ms.Moynihan had givenherson a copy 39. At the June 19,2009,hearing, Mr. Brouillard

oppositionto themotion. appearedfor Mr.Moynihan. Mr. Brouillardargued in Brouillardappearedwith Ms.Moynihan. Mr. Shadallah ofprooftoconsidertheGAL's motion tosuspend. Mr. 38. On June 19,2009, the Court convened a hearing on offers

filing she madeagainstMr. Moynihan. and that Ms.Moynihan had notinvolvedher son in any fact or law forchangingthe currentparentingarrangement, Moynihan's parentingtime, that there was nootherbasisin Kamman had notrecommended a change in Ms. Mr. Brouillardargued on Ms. Moynihan's behalfthatDr. filed anobjectionto Mr.Tropiano'smotion to suspend. appearanceon behalfofMs. Moynihan, Mr.Brouillard with Ms.Moynihan's children. Shortly after filing his Moynihan at the time and had frequent personalcontact 37. Mr. Brouillardwas romanticallyinvolvedwith Ms.

Mr. Brouillardremained inthecase untilMarch 2010. June 9,2009. Ms. Stearnswithdrew on June 19,2009, and Mr. Brouillardenteredan appearancefor Ms.Moynihan on hearingon herbehalfand asked Mr.Brouillardto appear. BrouillardthatMs. Stearnswould not be able to attendthe 19,2009. Priorto the hearing, Ms.Moynihan told Mr. 36. The motion tosuspend was scheduledfor ahearingon June

parentingtime with his mother be suspended. father. Mr.Tropianoalleged that the son asked that hismother'scomplaintsofparental alienation against his violencecomplaintsagainst his father and wasdistressedby that he hadwitnessedhis mother bringing domestic Ms. Moynihan's parentingtime withher son, ongrounds 35. On June 9,2009, Mr. Tropianofiled amotion tosuspend

needs tostop." child'semotionalwell-beingand insisted that the"conflict between the parents was taking a tremendous toll on the appointedGAL. Dr. Kamman indicated that theconflict Ph.D.,issueda report toJosephTropiano,Esq., the newly 34. On March 1,2009,theson'stherapist, Sheryl Kamman, p. 9 Page 9 of30 it was contrary toearlierfindings andrecommendations considerevidenceofMr. Moynihan's misconduct;and that hearingand inCourt documents ...;"thatitfailedto son inorder"to reconcile differences alleged in theCourt shouldnot beforeclosedfrom discussingmatterswith her Moynihan's constitutionalrights; that Ms.Moynihan counselingand psychotherapy;that theorderviolatedMs. to live with his father and disregarded hisongoing need for that the Court unreasonably relied on theson'sstated desire her son, in violationofvariousprovisionsofRSA 461-A; detrimentalto the relationship between Ms.Moynihan and orderwas contraryto the bestinterestsofher son and 43. Mr. Brouillardargued onbehalfofMs. Moynihan thatthe

to the children. prohibitingdisclosureofrelevant pleadings anddocuments the ordersuspendingMs. Moynihan's parentingtime and 42. On July9,2009,Mr. Brouillardfiled amotion toreconsider

documents to the minor children." thepending matterwith orprovideany pleadingsor related furtherprovidedas follows:"Neitherpartyshalldiscuss requestedparentingtime with Ms. Moynihan. TheCourt and therapistrecommended otherwise, or until her son Ms. Moynihan's parenting time with her son until the GAL 41. The Courtissued an order dated June26,2009, suspending

file and to advise his client accordingly. responsibilitytoreview and understandthecontentsofthe acknowledges that, upon entering the case, he had a communication with thechildren.However, Mr. Brouillard August 2007 order and January 2008admonitionregarding bulkofits history, including when the Court issued its 40. Mr. Brouillardhad not been involved in thecase forthe

motion. motion, but did not suggest that she show him a copyofthe advised hisclientto talkto her son about the contentsofthe statementsto the Court, his presentrecollectionis that he Brouillard does not dispute that he made the foregoing thatwere attributableto him were true."While Mr. verify that the statements made in the motion [to suspend] Moynihan gave her son a copyofthe motion in order"to representedto the Court that,on hisrecommendation, Ms. p. 10 Page 10 of30 Moynihan requiredmentalhealthtreatment.Under these behavior and his "maladaptive personality," for which Mr. productofMr. Moynihan's rigid,uncompromising that the prolonged conflict between the parties was the Dynamic that Mr. Brouillard filed on her behalf,arguing 48. Ms. Moynihan wrote most oftheMotion to Examine

Examine Dynamic). Relates to the Best InterestoftheChildren(Motion to Motion to Examine the DynamicofThis HighConflictas it 47. On September 4,2009,Mr. Brouillard filedRespondent's

30,2009, summarized below. Modify. The Court did not issue anorderuntilNovember heard testimony regarding Mr.Moynihan's Motion to 46. On July 14,17,and 21 andSeptember 1,2009,theCourt

ordersuspendingMs. Moynihan's parentingtime. Court denied Mr. Brouillard'smotion to reconsiderthe 45. At a hearing convened in July 2009, theBrentwood Family

set forth in Mr.Tropiano'spleading. Mr. Brouillard was not aware at the timeofany ofthe facts allowed to see the"motion;"and heapparentlydeclined. school and asked him to repeat his request that he be son on his cell phone while riding the bus home from "seethepaper;"two days later, Ms.Moynihan calledher Tropiano,her son did notbelievehismother and wanted to ofthe family until he was eighteen.Accordingto Mr. would prevent him from seeing Ms. Moynihan or her side him that the GAL was obtaining a restraining order that with Ms. Moynihan on June17,2009,Ms. Moynihan told also reported that, while the son was visiting grandparents contributed to alienating her son from her. Mr. Tropiano that Ms.Moynihan's actions against Mr.Moynihan subordinatinghis needs in thisconflictto herneeds" and was "placingthechildin thedivorceconflictand was warranted, in part, becauseofevidence that Ms. Moynihan time. Mr.Tropianoargued that theCourt'sorder was reconsider the order suspending Ms. Moynihan's parenting 44. Mr. Tropiano filed a response to Mr.Brouillard'smotion to

Moynihan. that primary residential custody should remain with Ms. p. 11 Page 11 of30 had alreadybeen tried oradjudicated,and assertedthatthe identifiedand argued many issuesoffact,some ofwhich 2008, finding Ms. Moynihan in contempt. Mr.Brouillard 5],precludingrelocationofthechildren,and October 29, challengetheCourt'sordersof"June 9,2008" [datedJune 54. Mr. Brouillardalsoundertookon Ms. Moynihan's behalfto

parental rights. under RSA 461-A:6 in supportofthemodificationof argued that Mr. Moynihan had not met his burdenofproof 53. In the Motion for Summary Judgment, Mr.Brouillard

issuesofrelocationand contempt. Moynihan and several pagesofexhibits relating to the accompanied by acomprehensiveaffidavitofMs. (Motion forSummary Judgment). The Motion was Motion forSummary Judgment on Burden ofProof 52. On September 23, 2009, Mr. Brouillard filedRespondent's

dismiss,arguing in part that it was frivolous. 51. Mr. Moynihan objectedto Mr.Brouillard'smotion to

precludingrelocationofthechildren. been found incontempt oftheCourt'sJune 2008order children.Accordingly,Ms. Moynihan should not have Moynihan had not actuallymoved toGilfordwith the thetestimonyrevealedthat Mr.Moynihan knew thatMs. theJulyand September 2009, hearings),but heargued that underlyingmotion had alreadybeen heardby the Court (at Motion to Modify. Mr.Brouillardacknowledged that the motion todismissMr. Moynihan's February8,2009, 50. On September 18,2009, Mr. Brouillardfiledanother

ofan affidavit),repletewithhearsay,and frivolous. on grounds that it was untimely,defective(in theabsence 49. Mr. Moynihan objectedto the Motion toExamine Dynamic

NOT WANT THE CHILDREN." testimonyon therelocationissuerevealsthat he"DOES containedthe additional allegation that Mr.Moynihan's the truth and setting the recordstraight."The motion Petitioner[Mr. Moynihan] from further harm byexposing required "to act much more aggressively instoppingthe circumstances,Ms. Moynihan indicated that she was p. 12 Page 12 of30 and thatthe son wasdrawn deeper intotheconflict father with whom he has a very goodrelationship; feels that he will be used in thelitigationagainsthis [theson's]mother against his father";thatthe son that that [theson's]mother'sboyfriendrepresents attorneyis alsoher live inboyfriendwhich means battletherelocationdecision;thather"current The Court found that Ms.Moynihan continuesto in theenvironment affordedhim by Ms. Moynihan. and emotionalharm to theparties'son byremaining 1. There is clear andconvincingevidenceofmental

followingfindings: 59. In its November 30,2009, Order,the Court made the

issuedon December 15,2009. orderofcontemptagainst Ms. Moynihan. TheOrder was Mr. Moynihan's Motion to Modify and denied afurther 58. In its Order datedNovember 30,2009,the Court granted

regardingtheparentingissues. Moynihan had met hisburden ofproofunder RSA 461-A:6 judgment under RSA 491:8-aon thequestionwhether Mr. Summary Judgment,Mr. Brouillardsoughtdeclaratory Moynihan's objection, arguing that, with theMotion for 57. On September 28,2009,Mr. Brouillardrespondedto Mr.

Moynihan requestedan awardofcostsand attorney'sfees. Mr. Moynihan and increasingthe costoflitigation.Mr. Moynihan's boyfriend) for the expresspurposeofharassing Judgment was preparedby Mr. Brouillard(who was Ms. Shadallahalsoarguedthat theMotion forSummary event, itcouldnot be filed in anycourtaftera trial. Mr. rules made no provision for such amotion and that, in any fees and sanctions. Mr. Shadallah argued that theCourt's theMotion for SummaryJudgment and a crossmotion for 56. Mr. Moynihan, through Mr. Shadallah, filed an objection to

judgment as amatteroflaw. SeeRSA 491:8-a,III. or basis for finding that Ms. Moynihan wasentitledto 55. The Motion for Summary Judgment contained no allegation

ofknowledge and half-truths he presented to thisCourt...." Court'sprior findings were based on Mr.Moynihan's "lack p. 13 Page 13 of30

November 30,2009,Order. same dateaddressingseparate issues raised in the 63. Mr. Brouillardfiledadditionalmotions to reconsideron the

RSA 461-A. a matteroflaw in evaluating the issues as required under shouldnot have relied on Mr.Tropiano,and that iterredas misconstruedand disregardedsome oftheevidence,that it December 21,2009. Mr. Brouillardclaimed thattheCourt on December 15,2009, and received by Mr.Brouillardon reconsidertheCourt'sOrder ofNovember 30,2009, issued 62. On December 28,2009, Mr. Brouillardfiled amotion to

theMotion forSummary Judgment. awarded costs and feesassociatedwith having to respond to issues and that it was filed in bad faith. Mr. Moynihan was basis to file it after a four-day trial with manycontested Summary Judgment. The Court found that there was no 61. The Courtalso denied Ms.Moynihan's Motion for

requested. Motion to Modify because itofferedno basisfor therelief The Courtdenied Ms.Moynihan's motion todismissthe withoutany basis, and it requestedreliefalready denied. it was anattempttosupplementevidencealreadypresented denied the Motion to Examine the Dynamic ongroundsthat since theconclusionofthe evidentiary hearings, the Court 60. With respectto various pleadings filed by Mr.Brouillard

narcissistwilldominatechildren and stunttheirgrowth." same timevalidatesthisCourt'sfindingoffact that the responsibilityto Mr.Moynihan "conflictswith and at the Moynihan's constitutionalrights; andgrantingprimary GAL's investigationwas incomplete; theorderviolated Ms. that the evidence favored Ms. Moynihan's position; the that Mr. Moynihan did not meet his burdenofproofand Court'sorder regarding parenting. Mr.Brouillardargued 67. Mr. Brouillard'sfifthmotion to reconsideraddressed the

bringing the motion "regarding the burdenofproof." arguing that there was a legitimate andproperbasis for Court'sorder denying the Motion for SummaryJudgment, 66. Mr. Brouillard'sfourth motion to reconsider challenged the

reconsideration,Mr. Brouillard stated only as follows: Dismiss. However, in supportofthemotion for directed at theCourt'sorder denying theMotion to 65. Mr. Brouillard'sthird motion to reconsider was apparently

CHILDREN." atleastthreeoccasionsthathe DOES NOT WANT THE parentingissues, Mr.Moynihan acknowledged inCourt "on furtherallegedthat,inconnectionwith therelocationand 'backwards.'"Ms. Moynihan, through Mr.Brouillard, to the dynamicofthis conflict, the Court got it exposingthe truth and setting the record straight; that due aggressivelyinstoppingthePetitionerfrom furtherharm by now requires the Respondent to act much more Motion to Examine Dynamic, that"thePetitioner'svictory motion containedthesame warning appearingin the Moynihan" which, in turn, isharmfulto thechildren.The resulting"attackingand blamingbehavioragainstMs. "maladaptiveNarcissisticPersonalityDisorder"and the by Ms. Moynihan, focused on Mr.Moynihan's alleged motion to reconsider, apparently written for the most part orderdenyingtheMotion toExamine theDynamic. This 64. In hissecond motion,Mr. Brouillardchallengedthecourt's p. 15 Page 15 of30 Mr. Brouillard argued that the Brentwood Family Court had Moynihan's Motion to Modify residential responsibility. 30,2009 order(issuedDecember 15,2009) grantingMr. Brouillard'smotion forreconsideration),and itsNovember time with her son (and theCourt'sdenialofMr. June 2009 ordersuspendingMs. Moynihan's parenting Supreme Court, challenging the Brentwood FamilyCourt's NoticeofDiscretionaryAppeal with the New Hampshire 72. On or about January13,2010,Mr. Brouillardfileda Rule 7

Motion for Summary Judgment that was filed in bad faith. Moynihan in connection with having to respond to the Court approved the costs and fees incurred by Mr. required by theCourt'sorderofNovember 30,2009. The demonstrated any effort to seek gainful employment, as childsupportand found that Ms.Moynihan had not motion. The Court alsoordereda review ofthelevelof attorney'sfees incurred inconnectionwith filing the Moynihan in contempt and ordering her to pay costs and Courtissued an order on April16,2010,finding Ms. againstMs. Moynihan for failure to pay childsupport.The Moynihan's February19,2010,motion forcontempt filed hearingto address pending motions, including Mr. 71. On April6,2010,theBrentwood Family Courtconvened a

Supreme Court declinedtoacceptany oftheappeals. ordersissuedby theBrentwood Family Court.The Supreme Court, as described below, regardingvarious multipleRule 7NoticesofAppeal with theNew Hampshire 70. In Januaryand February,2010, Mr.Brouillardfiled

remain suspended. that Ms.Moynihan's parenting time with her sonwould between her son and Ms. Moynihan had been made, and her son, that no progress in restoring therelationship that Ms.Moynihan had declined to attendcounselingwith theCourt issuedan orderon February22,2010. Itfound resuming parentaltime between Ms. Moynihan and her son, 69. Following furtherhearingtoreview theprospectsof

Ms. Moynihan's post-hearingmotions. 68. By orderdatedJanuary19,2010,theCourt denied allof p. 16 Page 16 of30 represented that she had been encouraged to pursue such Moynihan denied that her appeals were frivolous and matter,and thatshe has now asked him to withdraw. Ms. her "friend/boyfriendoffour years," to represent her in this acknowledged that in June 2009, she asked Mr.Brouillard, objection to Mr. Shadallah's motion. Ms. Moynihan 76. On or aboutMarch 2,2010,Ms. Moynihanfileda pro se

requestedan award ofcostsand fees. wereintendedto bevexatious,harassingandannoying,and noticesofappeal. He claimed they were without merit and Hampshire Supreme Court seeking to dismiss the multiple 75. On February23,2010, Mr. Shadallahfiled amotion inNew

461-A. assessmentofthe facts and in its rulingsoflaw under RSA thecourtfailed to apply the correct standards in its violated Ms. Moynihan's constitutional rights and whether identifiedincludedwhether thelower court'sorders ofhis Narcissistic Personality Disorder. Other issues children and that Mr. Moynihan's conduct was the product efforts to blame Ms. Moynihanfor causing trauma to the theCourt'saction was taken in response to Mr. Moynihan's the alternative parenting plan. Mr. Brouillard claimed that parenting, including the October29,2008,order adopting Brentwood FamilyCourt'svarious rulings bearing on February10,2010,Mr. Brouillard challenged the 74. In his second Rule 7 NoticeofDiscretionary Appealof

parentingissues. discretion" in considering the evidence and ruling on the whether the Court undertook an "unsustainableexerciseof modify parentingrights. Mr.Brouillardraisedthe issue parentingtime and granting Mr.Moynihan's motion to Family Court'sorderssuspendingMs. Moynihan's firstreiteratedMs. Moynihan's appealoftheBrentwood additionalRule 7 NoticesofDiscretionaryAppeal. The 73. On orabout February 10,2010,Mr. Brouillardfiled

RSA 461-A. supportedby requisite findings under variousprovisionsof constitutionalright to parent herchildand were not Further,thelower court'sordersviolatedMs. Moynihan's erred in someofits findingsoffact and rulingsoflaw. p. 17 Page 17of30 Moynihan, he could not reasonably havebelievedunder the wrong at thetime he firstenteredthecase on behalfofMs. 80. While Mr. Brouillard did not think he was doing anything

Moynihan's children. thathe hadfrequent,closepersonalcontactwith Ms. in the case, the effectofwhich was aggravated by the fact Brouillard was unduly personally and emotionally involved was romantically involved with Ms. Moynihan. Mr. same time, Mr. Brouillard had a personal interest in and rights and visitationoftheparties'childrenwhile, at the domestic relations matter involving disputes over parenting representMs. Moynihan in acomplex, highlycontentious 79. Mr. Brouillardbreached that duty byundertakingto

interest. would be materiallylimited by Mr.Brouillard'spersonal risk that Mr.Brouillard'srepresentationofMs. Moynihan her under such circumstances as to produce asignificant 78. Mr. Brouillard owed Ms. Moynihan a duty not torepresent

establishes the following violations by clear and convincing evidence:

Stipulation, as to the RulesofProfessional Conduct that were violated. TheStipulation

The Respondentand the ADO have stipulated, and theCommittee accepts the

StipulationattH 1-77.

Moynihan. Rule 7 DiscretionaryAppeals filed onbehalfofMs. Supreme Court issued ordersdecliningtoaccepteach ofthe 77. On April 14,15,and 16,2010,the New Hampshire

him." all children,thePetitionerthinkstheappealsareabout appeals are aboutjusticefor theMoynihan childrenand for her to defend herself. Ms.Moynihan arguedthat"the Moynihan's multiple attacks andharassmenthave required reliefby "A SafePlace."Moreover, she allegedthatMr. p. 18 Page 18 of30 Court'sorderofNovember 30,2009, filedon the record; multiple motions toreconsiderthe formally adjudicated and undertaking to supplement Judgment, addressingissuesalreadytriedor September 23,2009, Motion forSummary addressingissues alreadyadjudicated;the 2009, motion to dismiss the Motion to Modify, behavior, replete with hyperbole; the September18, allegationsand theories about Mr.Moynihan's the most part by Ms.Moynihan toadvance her Motion to Examine Dynamic,apparentlywrittenfor Such pleadings included theSeptember 4,2009, redundant,meritless,and sometimes vexatious. his client which wereprocedurallydefective, c) Mr. Brouillardagreed to filepleadingson behalfof

following: 82. Consequences oftheaforesaidbreachincludethe

disinterestedlawyer. reasonablyhave been requested orobtainedby a circumstances,and, in any event, suchconsentcouldnot writtenconsentto represent her under the foregoing 81. Mr. Brouillarddid not obtain Ms.Moynihan's informed,

domestic relationsmatter. custody, andchildrelocation issues in theunderlying representationto Ms. Moynihan indealingwithparenting, circumstancesthat he could provide competent and diligent p. 19 Page 19 of30 materialfactratherthan toestablishtheabsence of purported to identify a numberofgenuineissuesof a) The aforesaid Motion for Summary Judgment which

filingcertainpleadings,as follows: 89. Mr. Brouillard breached his duty to performcompetentlyby

the domestic relations issues confronting Ms. Moynihan. to perform with the skills required to competently litigate 88. Mr. Brouillard lacked the knowledge and skilland/orfailed

competent representation. 87. Mr. Brouillard owed Ms. Moynihana duty to provide

Stipulationatffi[87-89.

Conduct 2.1. and convincingevidenceofa violationofN.H. R. Prof. 86. Mr. Brouillard'saforementioned conduct constitutesclear

set forth at paragraphs 80 to 83 above. 85. Mr. Brouillardbreachedthat duty under thecircumstances

advice. independentprofessionaljudgment and rendercandid 84. Mr. Brouillard owed Ms. Moynihan a duty toexercise

StipulationatIf80-85.

Conduct 1.7(b). and convincingevidenceofa violationofN.H. R.Prof. 83. Mr. Brouillard'saforementioned conduct constitutesclear

confidencein the bar, preserve the integrityofthe legalprofession,and preventsimilarconduct

The purposeoftheCourt'sdisciplinarypower is"toprotectthepublic,maintainpublic

StipulationatU 95.

Prof.Conduct 8.4(a). clearand convincingevidenceofa violationofN.H. R. Brouillardviolatedtheabove rules,thereisnecessarily 91. Because thereexistsclearand convincingevidencethatMr.

Stipulationatfflf91-94.

Conduct 1.1. convincingevidenceofa violationofN.H. R. Prof. 90. Mr. Brouillard'saforesaidconduct constitutesclearand

natureoftherespondent'sacts, and not theexternalpressuresthatcould potentiallyhave

may be oneofintent,knowledge, or negligence,and that"what isrelevant...is thevolitional

mental state. TheNew Hampshire Supreme Court has held that therespondent'smental state

The second prong ofthethree-partanalysisrequiresan assessmentofMr. Brouillard's

and hotlycontesteddomesticrelationsmatterinvolvingparentingrights and visitation.

arose outofMr. Brouillard'sill-adviseddeterminationtorepresenthisgirlfriendin acomplex

advice, and toprovideMs. Moynihan withcompetentrepresentation.Each ofthesebreaches

under aconflictofinterest, to exercise independentprofessionaljudgment and providecandid

Under the firstprong ofthe analysis, Mr.Brouillardbreachedhisduty toavoid operating

sanction. Id.

the existenceofany aggravatingor mitigating factors andwhethertheyaffectthebaseline

baselinesanctionisdetermined,the Court then looks to the fourth and final partofthe analysis:

misconductand determininga baselinesanction. See Conner'sCase, 158 N.H. at 303. Once the

The first three partsofthe analysis create theframework forcharacterizingthe

(2007)); Standards §3.0.

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

mental state; (c) the potential or actual injury caused by thelawyer'smisconduct; and (d) the

analysis for courts toconsiderin imposing sanctions: "(a) the duty violated; (b) thelawyer's

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

Court has not adopted the ABA StandardsforImposingLawyer Sanctions("Standards"), it looks

accountthe severityofthe misconduct." Coffey'sCase, 152N.H. 503,513 (2005). Althoughthe

in the future." E.g.,Conner'sCase, 158N.H. 299, 303 (2009). "The sanction must take into p. 22 Page 22 of30

(c) representsa clientin amattersubstantiallyrelatedto a client;or another, and causes serious orpotentiallyseriousinjury to a adverseinterestswiththeintenttobenefitthe lawyer or (b) simultaneouslyrepresentsclientsthatthelawyer knows have potentiallyserious injury to the client; or to benefitthelawyeroranother,and causesseriousor lawyer'sinterests are adverse to theclient'swiththe intent (a) engages in representationofa clientknowing that the informed consentofclient(s): 4.31 Disbarment is generally appropriate when a lawyer, without the

respectto the issueofconflict,the Standards provide as follows:

Indetermininga baseline sanction, the Standards providematerialguidance.With

rulings by the court against his client.

independentjudgment and provide candid advice to Ms.Moynihan increasedthe riskofadverse

and the process with multiple,ineffectivepleadings. Mr.Brouillard'sapparentfailure toexercise

Mr. Brouillard'sconduct had an adverse effect on the legal proceeding byconfoundingthe record

The third prongofthe analysis requires analysisofthe injurycausedby Mr.Brouillard.

neglected to follow acceptedstandardsofprofessional advocacy.

likelydriven by his client's demands, as aconsequenceofwhich Mr. Brouillard lost sightofand

Brouillard's conduct thereafter in litigating theunderlyingmatter reflects a singular focus most

to recognize the conflict associated with hisdeterminationto represent his girlfriend. Mr.

that he could serve Ms.Moynihan in aresponsibleandprofessionalmanner, henegligentlyfailed

apparently entered the proceeding in June 2009 on the eveofa hearing with the good faithbelief

Mr. Brouillard's conduct involved a pattern ofnegligence.While Mr. Brouillard

hinderedhisjudgment." [Citing Grew's Case, 156 N.H.361,366(2007)]. Wyatt'sCase, 159 p. 23 Page 23 of30 Reprimand. 2Section4.34usestheterm"Admonition."The mostanalogoussanctioninNew Hampshireisa

Censure. 1Section4.33usestheterm"Reprimand."The mostanalogoussanctioninNew HampshireisaPublic

4.42 Suspensionis generallyappropriatewhen:

4.41 Disbarment isgenerally appropriatewhen:

With respect to the issueofcompetence,the Standards provide as follows:

potentialinjury to a client. adverselyaffectanotherclient,and causeslittle or noactualor lawyer'sown interests, or whether therepresentationwill representationofa client may be materially affected by the isolatedinstanceofnegligence indeterminingwhetherthe 4:34 Admonition isgenerallyappropriatewhen a lawyerengages in an injuryor potential injury to a client. representationwill adversely affectanotherclient, andcauses materiallyaffected by thelawyer'sown interests, orwhetherthe determiningwhethertherepresentationofa clientmay be 4.33 Reprimand1isgenerallyappropriatewhen alawyerisnegligentin injuryto a client. possibleeffectofthat conflict, andcausesinjury orpotential conflictofinterest and does not fully disclose to aclientthe 4.32 Suspension is generally appropriate when a lawyer knowsofa injury to a client. lawyer or another, and causes serious orpotentiallyserious to therepresentationofa clientwith theintentto benefitthe materially adverse, and knowingly usesinformationrelating matterinwhich the interestsofa presentor formerclientare p. 24 Page 24 of30

Reprimand. 4Section4.44usestheterm"Admonition."The mostanalogoussanctioninNew Hampshireisa Censure. 3 Section4.43usestheterm"Reprimand."The mostanalogoussanctioninNew HampshireisaPublic

sanctioninthiscase.

with the aggravatingand mitigating factors, indicate that a public censure is the appropriate

The partiesand themajorityoftheCommittee agreethatthebaselinesanction,combined

in thealternativedispute resolution program. the Bar and to the Court by doing pro bono work andservingas amediator for his misconduct. Mr. Brouillard has madesignificantcontributionsto ADO, exhibitinga cooperative attitude andacceptanceofresponsibility thecase as he did. Mr. Brouillardhas made fulland freedisclosureto the case, he did notexhibita dishonestorselfishpecuniarymotive inhandling compromised by hisexcessivepersonaland emotionalinvolvementin the b) Mitigatingfactors: While Mr.Brouillard'sprofessionaljudgment was

law. matter. Mr.Brouillardalso has substantialexperiencein thepracticeof violationsofRules 1.3,1.4,and 8.4(a)inconnectionwith a realestate a) Aggravatingfactors: Mr. Brouillard received areprimandin 2004 for

partiesagreethatthere areaggravatingand mitigatingfactors,as follows:

As to the fourth prong in the sanction analysiscontemplatedunderthe Standards, the

appropriatebaselinesanctionis public censure.

Considering the facts in this case in lightofthe Standards, the parties agree that the

and causes little or no actual or potential injury to a client. and does not act with reasonablediligenceinrepresentinga client, 4.44 Admonition4isgenerallyappropriatewhen alawyerisnegligent causes injury or potential injury to a client. does not act with reasonable diligence inrepresentinga client, and 4.43 Reprimand3isgenerallyappropriatewhen alawyerisnegligentand potentialinjuryto aclient. (b) a lawyer engages in a patternofneglect andcausesinjury or p. 25 Page 25 of30

hisviolationofan Orderofthe Brentwood FamilyCourt prohibitingdisclosureofmatters

Mr. Moynihan alleged rule violations relating to Mr.Brouillard'spleadingpracticeand

Hampshire Supreme Court.

complaintfiledwith the ADO by Mr. Moynihan, theformerhusband and a referralfrom theNew

children. This is an egregious case which comes to us onstipulatedfactsresultingfrom a

practicerepresentsthe woman with whom he is living in acontentiousdivorceinvolvingminor

Divorce is difficult at best, much worse when a lawyer lackingcompetence in the areaof

prosecution, andpublicationofthis matter.

Brouillard shall reimburse the Committee for all cost associated with the investigation,

The partieshave stipulated, and theCommittee accepts theStipulation,that Mr.

8.4(a):General Rule.

violating N.H. Prof. Conduct 1.7(b): ConflictofInterest,2.1:Advisor, 1.1: Competence, and

For allofthe above reasons the Committee issues a Public Censure to the Respondent for

ofa publiccensure. ADissentingOpinion is set forth inSectionVII.

recognitionofthe purposeofattorney discipline as noted above, accepted the stipulated sanction

conduct in engagingin such an egregiousconflictofinterest. Ultimatelythe Committee, in

engaged in considerable discussion about the stipulation especially in lightofMr. Brouillard's

The parties stipulated to therespondent'sreceiving a public censure. The Committee

IV. SANCTION p. 26 Page 26 of30

Thus Mr. Brouillardknew, or should have known, that his advice to Ms.Moynihan to

file.140.

previous orders, however, heacknowledged that, as counsel, he had anobligationto review the

attributableto him weretrue.'"U 39. Mr. Brouillard claimed to beunaware ofthecourt's

the motion in order'toverify that the statements made in the motion [to suspend] that were

represented to theCourtthat, on hisrecommendation,Ms. Moynihan had given her son a copyof

given her son a copyoftheGAL's motion to suspend [parenting rights]. Mr. Brouillard further

"At the hearing on June19,2009, Mr. Brouillard acknowledged that Ms. Moynihan had

boyfriend.U 59.

Moynihan. f 37. The Courtsubsequentlyfound that Mr.Brouillardwas Ms. Moynihan's live in

39. Mr. Moynihan acknowledged that he was, at that time, romantically involved with Ms.

Moynihan had not involved her son in any filing she made against Mr. Moynihan."fflf36, 37,

same date, Mr.Brouillardfiled a noticeofappearance and shortlythereafterrepresented:"Ms.

Litem, filed a motion to suspend Ms.Moynihan'sparenting time with her son.f 35. On the

Mr. Brouillard acknowledged that on June9,2009,Mr. Tropiano, the Guardian Ad

admonished the parties to comply with the August21,2007,order,f 21.

ofany relocation dispute with the minor children."f 14. Again on January16,2008,the court

On August21,2007,the family court stated: the "parties are not to discuss the specifics

herein are to instant decisionofthe Committee and to the numbered paragraphs therein.)

Court referred the latter issue to this Committee. Decision paragraphs1,2and 4. (All references

relatingto the divorce to the minorchildren.By letterdatedFebruary19,2010,the Supreme p. 27 Page 27 of30

Supreme Court. % 70. The court declined to accept eachofthem.H 77.

In January and February2010,Mr. Brouillard then filed multiple Rule 7 notices in the

fflf62,63,65,66. All themotions were denied.

violationsofthe constitutionand makingfrivolousand, in some cases, unintelligible arguments.

Nevertheless, Mr. Brouillard filed four motions to reconsider, alleging, interalia,

CHILDREN." f 64. The court denied Mr. Brouillard's Motion to Examine theDynamic,f 60.

Moynihan acknowledged in Court "on at least threeoccasionsthat he DOESNOT WANT THE

Brouillard,furtheralleged that, inconnectionwiththerelocationand parentingissues, Mr.

totallyabrogatinghis role aslawyer,counselorandadvocate.1J 48. Ms.Moynihan,through Mr.

Moynihan had written mostofthe motion and Mr. Brouillard simply signed his name, thus

On September4,2009,Mr. Brouillardfiled a Motionto Examine theDynamic,f 47. Ms.

55. The court held that it was filed in badfaith,f 61.

allegationsor basis forfindingthat Ms.Moynihanwas entitledto judgment as a matteroflaw."f

Motion forSummary Judgment,f 52. "The MotionforSummary Judgment contained no

On September23, 2009, after four days ofevidentiaryhearings, Mr. Brouillard filed a

matters to the minorchildren,f 41.

Following the hearing, the court issued yet another order prohibiting disclosureofsuch

court'sprevious orders.

giveher son acopyof the GAL'smotiontosuspendherparentingrightswas aviolationof the p. 28 Page 28 of30

Moynihandid not receive the independent legal advice,judgment and counseling to which she

suffered. She was twice held in contempt and lost her parenting rights for her son. Ms.

Moynihan and his son suffered, thejudicialsystem suffered and even his client, Ms. Moynihan

thejudicialsystem suffered serious injury as a direct resultofMr. Brouillard'sactions. Mr.

numerous frivolous andredundantmotions.Ifso,justicewas delayed for those litigants. Thus

likely that many litigants in those courts had meritorious matters delayed by Mr. Brouillard's

All courts in New Hampshire are busy and the Family Courts are extremely busy. It is

the civilityexpectedofthe legalprofession.

His behaviorwas whollyinappropriateand in violationofthe RulesofProfessionalConduct and

Court. The courtshad to read,considerand ruleon each ofthosemotions and Rule 7 notices.

his son. They also placed a tremendous burden on the Brentwood Family Court and the Supreme

necessarily placed a financial andemotionalburden on the formerhusband,Mr. Moynihan and

valid basis. Mr. Brouillard ignored that precept. His repetitious and groundless motions

legal support. A responsible lawyer does not assert constitutional issues without thought and a

multiplied the proceedings by filing multiple, redundant and frivolousmotionswithout factual or

Conflict, Rule2.1Advisor and Rule 8.4(a), the General Rule. Mr. Brouillard unnecessarily

Mr. Brouillard has stipulated to multiple violationsofRule1.1Competence, Rule 1.7

in favorofa non-lawyerclient with whom he was living.

advocacyfalls into the lattercategory.Mr. Brouillardabdicatedhisindependenceandjudgment

frivolous allegations filed in bad faith is to be condemned. Unfortunately, Mr. Brouillard's

Vigorousadvocacyis to beapplauded;vicious,vituperativeadvocacyrepletewith

argument on theissueofsanctions.

oflaw for a periodofone year and request that the matter be reconsidered and set down for oral

The dissentingopinionrecommends that Mr. Brouillard be suspended from the practice

1.7,2.1,and 8.4(a),over an extendedperiodoftime.

Mr. Brouillarddid noneofthose things. He alsocommitted repeatedviolationsofRules

manner...." (4)undertakeactions on theclient'sbehalfin a timely andeffective clientor from otherrelevantsources;.... (1) gather sufficient facts regarding theclient'sproblem from the minimum: "(c)In theperformanceofclient service, the lawyer shall at a

known ofthe prior court orders. Rule1.1Competence provides in pertinent part:

Brouillardstipulated. Mr.Brouillardviolated a courtorderbecause he kneworshouldhave

Under the Standards, suspensionis called for eachofthe ruleviolationsto which Mr.

thejudicialprocess.

a proper work ethic, to protect the public, and to protect the integrityofthe legal profession and

and clear. A serious suspension is necessary to give Mr. Brouillard a time to reflect and establish

This is an egregious case. The message to Mr. Brouillard, the bar and the public should be strong

The decisionofthe committee imposed a public censure. This is wholly inadequate.

was entitled. p. 30 Page 30 of30

File John J.Moynihan Philip A. Brouillard,Esquire James L.ICruse,Assistant Disciplinary Counsel Distribution:

March 1^,2011