Michael D. Hatem (2011)

admitted. Supreme Court Rule 37A(III)(b)(3)(A).

responsive pleadings and/or an Answer, the allegations in the Notice of Charges were deemed

Objection was filed by Mr. Hatem. Due to the fact that the Respondent failed to file any

December 7,2010, by in-hand service from the Sheriff on December 16, 2010. No Answer or

Mr. Hatem was served with Disciplinary Counsel's Notice of Charges, dated

evidence:

The Committee finds the following facts were established by clear and convincing

follows:

Counsel's Memorandum on Sanction and the Hearing Panel Report, the Committee finds as

Having reviewed the entire record, including the Notice of Charges, Disciplinary

was not present.

Lawrence A. Vogelman. Toni M. Gray, Vice Chair was absent, Benette Pizzimenti, Vice Chair

Connair, Alan J. Cronheim, Gerald A. Daley, Richard H. Darling, James R. Martin and

Members present were Margaret H. Nelson, Chair, Susan R. Chollet, David N. Cole, Thomas P.

The Professional Conduct Committee deliberated the above matter on May 17, 2011.

Hatem, Michael D. advs. Hampshire First Bank # 09-022

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

answers to interrogatories and an original signature page. Mr. Hatem made no mention of the

enclosing the answers to interrogatories. Mr. Hatem sent a letter to the Bank with a copy of the

On January 22, 2009, Mr. Hatem's assistant sent the Defendant's counsel a letter

not inform the Bank of the Conditional Default.

The Court sent the Notice of Conditional Default on January 20, 2009. Mr. Hatem did

Defendant's counsel filed a Motion for Conditional Default.

November 12, 2008, and again on December 15,2008. Thereafter, on January 9, 2009, the

Defendant's counsel on a least two occasions seeking the answers to interrogatories including,

After the October 13, 2008 deadline had passed, Mr. Hatem was contacted by

was October 13, 2008, and so notified the Bank.

with a deadline to answer within thirty days. Mr. Hatem was aware that the deadline to answer

On or about September 12, 2008, the Defendant propounded Interrogatories to the Bank

conversIOn.

filed an. P:u.~s"ver and Counterclaim alleging breach of contract, breach of fiduciary duty and

unjust enrichment, and fraud against Xtreme Limousine, LLC ("Xtreme"). Defendant Xtreme

Mr. Hatem filed a Writ ofSurmnons on behalf of the Bank alleging breach of contract,

engaged Mr. Hatem's services to assist with the collection of a delinquent loan.

("Bank") with an office located at 80 Canal Street, Manchester, New Hampshire. The Bank

During the course of his law practice, Mr. Hatem represented Hampshire First Bank

New Hampshire.

Hampshire Bar in 1989. Mr. Hatem operated a law office at 215 Main Street, Suite 1, Salem,

Michael D. Hatem, Esquire, is a New Hampshire attorney who was admitted to the New p. 3 Page 3 ofS

violated N.H. Rule Prof Conduct S.4(a): Misconduct.

The Committee finds by clear and convincing evidence that Mr. Hatem necessarily

3. His failure to take prompt remedial action to remedy the default.

2. Allowing the case to be conditionally defaulted without the Bank's knowledge,

required thirty days, the date originally specified by Mr. Hatem);

(notwithstanding the fact that the Bank returned the answers to Mr. Hatem within the

Bank's answers to interrogatories to Defendant's counsel for over four months,

I. Breaching his duty to act diligently on behalf of his client by his failure to deliver the

Rule of Professional Conduct 1.3. by:

The Committee finds by clear and convincing evidence that Mr. Hatem violated N.H.

conditional default.

default, did not take action to strike the conditional default and did not notify the Bank of the

It is undisputed that Mr. Hatem did not take reasonable action to prevent the conditional

default stricken.

conditionally defaulted. The Bank's new counsel was successful in having the conditional

counsel to review the file at the Court and learned from successor counsel that the case had been

Defendant's counsel with an executed signature page. The Bank subsequently retained other

Mr. Hatem never filed a Motion to Strike Conditional Default nor did he provide

to Strike Conditional Default.

conditional default, a time limit for the return of the signature page, or a deadline to file a Motion p. 4 Page 4 of8

Conner's Case, 158 N.H. at 303. Once the baseline sanction is determined, the Court then looks

create the framework for characterizing the misconduct and determining a baseline sanction. See

Douglas' Case, 155 N.H. 613, 621 (2007)); Standards §3.0. The first three parts of the analysis

the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors." Id. (quoting

"(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by

at 303. The Standards set forth a four part analysis for courts to consider in imposing sanctions:

the Court has not adopted the Standards, it looks to them for guidance. Conner's Case, 158 N.H.

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

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 of the legal profession, and prevent similar conduct

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

allowing the case to reach the final default deadline, all without the Bank's knowledge.

originally specified by Mr, Hatem; 2) allowing the case to be conditionally defaulted; an.d 3)

fact that the Blli"1k returned tt'1e answers to Mr. Hatem within the required 30 days, the date

Interrogatories and Requests to Defendant's counsel for over four months, notwithstanding the

Mr. Hatem breached said duty by: 1) failing to deliver the Bank's answers to

avoid exposing the Bank to conditional default and final default.

Defendant propounding them, or to move for an extension if the Bank needed one, in order to

answers to Interrogatories and Requests to Defendant's counsel within thirty days of the

Lawyer Sanctions (1992) (the"Standards"). Mr. Hatem had a duty to deliver the Bank's

The Committee considered the American Bar Association's Standard/or Imposing

III. ANALYSIS p. 5 Page 5 of8

Lack of Diligence:

determining a baseline sanction. Relevant provisions set forth below appear at Standards § 4.4,

In conjunction with the foregoing assessment, the Standards offer material guidance in

with or prejudice the end result.

promptly and diligently ultimately harmed the attorney-client relationship, but did not interfere

Mr. Hatem did not make the Bank aware of the case's status. Mr. Hatem's failure to act

conditional default and one day away from potential final default. Mr. Conaton was upset that

proceed with the case. Mr. Conaton was alarmed when Mr. Merra told him that the case was in

was minimal and, as a practical matter, Mr. Hatem's conduct did not impede Plaintiff s ability to

However, given opposing counsel's apparent willingness to accommodate Mr. Hatem, the risk

Hampshire Bank. Mr. Hatem's dilatory conduct exposed the client to the risk of default.

As to the third prong of the analysis, Mr. Hatem's failure caused injury to his client, First

any finding of fact with respect to whether Mr. Hatem's conduct was done knowingly or

With respect to the second prong of the sanction analysis, the Hearing Panel did not make

default, what caused it, and whether and how he was going to cure the default.

case from being conditionally defaulted, and did not promptly inform his client of the conditional

diligently deliver the Bank's answers to Interrogatories and Requests, did not act to prevent the

promptly with respect to his client, First Hampshire Banle Mr. Hatem did not promptly and

Under the first prong of the analysis, Mr. Hatem violated his duty to act diligently and

and whether they affect the baseline sanction. Id.

to the fourth and final part of the analysis: the existence of any aggravating or mitigating factors p. 6 Page 6 of8

2 Section 4.44 uses the term"Admonition." The most analogous sanction in New Hampshire is a Reprimand. 1 Section 4.43 uses the term"Reprimand." The most analogous sanction in New Hampshire is a Public Censure.

aggravating or mitigating circumstances that might affect the ultimate sanction. Aggravating

Having determined a baseline sanction, the remaining question is whether there are

and eleventh-hour discovery ofMr. Merra.

van Zanten could have obtained a default judgment in favor of his client, but for the fortuitous

one day of the final default window at the time Mr. Merra discovered the conditional default, Mr.

conditional default might have remained unknown to Mr. Conaton. Since the case was within

Had Mr. Merra not looked at the file and seen that the case had been conditionally defaulted, the

Mr. Hatem engaged in a pattern of neglect that caused injury or potential injury to his client.

The Committee concludes that the baseline sanction is suspension under Section 4.42(b).

potential injury to a client. with reasonable diligence in representing a client, and causes little or no actual or 4.44 Admonition2 is generally appropriate when a lawyer is negligent and does not act

injury to a client. with reasonable diligence in representing a client, and causes injury or potential 4.43 Reprimand! is generally appropriate \vhen a la\vyer is negligent lli'1d does not act

to a client. (b) a lawyer engages in a pattern of neglect and causes injury or potential injury

potential injury to a client; or (a) a lawyer knowingly fails to perform services for a client and causes injury or

4.42 Suspension is generally appropriate when:

causes serious or potentially serious injury to a client. (c) a lawyer engages in a pattern of neglect with respect to client matters and

or potentially serious injury to a client; or (b) a lawyer knowingly fails to perform services for a client and causes serious

injury to a client; or (a) a lawyer abandons the practice and causes serious or potentially serious

4.41 Disbarment is generally appropriate when: p. 7 Page 7 of8

cooperation Mr. Hatem did evidence at the beginning of the process should not be considered as

Given Mr. Hatem's lack of cooperation after the Committee rejected his stipulation, any

Michael D. Hatem Sincerely, longer practicing law and why most lawyers hate the practice. that will cover my argument. This case is a microcosm of why I am no school day to discuss this matter further. I will file a written response I waive any hearing. I am currently teaching and I do not want to miss a Dear Counsel,

sanction hearing, Mr. Hatem sent the following email to Disciplinary Counsel:

Hearings Committee Administrative Coordinator assembled a panel and sent notice of the

appointed for the purpose of determining sanction. On January 28,2011, three days after the

answered the Notice of Charges. Disciplinary Counsel then requested that a hearing panel be

hand service of the Notice of Charges by the Hillsborough County Sheriff. Mr. Hatem never

she was sending them to him. Disciplinary Counsel then extended Mr. Hatem the courtesy of in-

Disciplinary Counsel sent to him by certified mail, even though Disciplinary Counsel told him

Counsel he wanted a hearing. Subsequently, ML Hatem refused to claim the Notice of Charges

joint stipulation. Once 1t~e Committee rejected the joint stipulation, !vIr. Hatem told Disciplinary

cooperation with the disciplinary proceeding was positive up through the parties submitting a

# 06-041. A mitigating factor in this case is the absence of a dishonest motive. Mr. Hatem's

firm. See Hatem, Michael D. and Donovan, Patrick E. advs. Attorney Discipline Office

Hatem received a Warning that he must more carefully attend to the details of operating a law

Docket No. 05-037 (Professional Conduct Committee, June 21,2007). In October 2008, Mr.

a client file, in violation of Rule 1.I6(d). See Hatem, Michael D. advs. Joyce M LaFrance,

prior disciplinary record. In June 2007, Mr. Hatem received a Reprimand for failure to turn over

factors in this case include Mr. Hatem's substantial experience in the practice oflaw and his p. 8 Page 8 of8

File James Dunphy, President and CEO, Hampshire First Bank Michael D. Hatem, Esquire Jennifer B. Sargent, Disciplinary Counsel Distribution:

May~,2011

37(3)(c).

appeal this decision to the New Hampshire Supreme Court. See also Supreme Court Ru1e

with the investigation and prosecution ofthis matter. See N.H. Sup. Ct. R. 37(19).

The Professional Conduct Committee hereby assesses Mr. Hatem all costs associated

knowingly, the Committee hereby imposes a Public Censure.

selfish or dishonest motive and the Hearing Panel's failure to fmd that the violations were done

a mitigating factor. However, given the lack of any substantial harm to his client, his lack of a