Erik J. Simensen (2012)

PLLC at Hi! North State Street, Suite 301, Concord, New Hampshire 03301. 2. At all times material to this proceeding, Mr. Simensen worked for Dargon Law Finn,

Simensen was admitted to practice on May 24, 2004. 1. Erik J. Simensen is an attorney licensed to practice law in New Hampshire. Mr.

convincing evidence: The Committee accepts the Stipulation. This establishes the following facts by clear and

the PCC makes the following factual findings and rulings. ("ADO's") Stipulation as to the Facts, Violations, and Recommended Sanction ("Stipulation"), deliberation, including consideration of the Respondent's and the Attorney Discipline Office's Assented-To Motion to Permit Waiver of the Hearings Committee Process. Upon further The Professional Conduct Committee ("PCC") considered and granted the parties' Pizzimenti were not present. Darling, James R. Martin, Jaye 1. Rancourt, and Richard D. Sager. David N. Cole and Benette Chair, Susan R. Chollet, Thomas P. Connair, Alan J. Cronheim, Gerald A. Daley, Richard H. captioned matter. Members present included Margaret H. Nelson, Chair, Toni M. Gray, Vice On December 13, 2011, the Professional Conduct Committee deliberated the above

Simensen, Erik J advs. Kenny Wand Patricia L. Roberts # 10-038

Alan J. Cronheim Holly B. Fazzino, Administrator Thomas P. Cormair * non attorney member David N. Cole Richard D. Sager Susan R. Chollet' Jaye L. Rancourt 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'

in North Carolina. 16. The Client Information fmm completed by the Robertses clearly indicated their residency

aspects of the below client's (loans and debts)." representaiives authorization to discuss, negotiate, and accept or reject negotiations for all Services. The authorization"grants the Dargon Law Firm PLLC and any of its 15. The Robertses also completed a Client Authorization for Credit Report and Attorney

jurisdiction ...." states, and may retain and make use of outside affiliate attorneys licensed in Client's 14. The Agreement also stated that"Dargon Law is only licensed to practice law in certain

13. Dargon Law Firm confirmed receipt ofthe initial $500.00 installment payment.

first $500.00 was to be tendered along with the signed Agreement. 12. The fee stated in the Agreement was $2,500.00, to be paid in five equal installments. The

seeking"negotiation of a loan modification on [their] residential real property." II. On March 12, 2010, the Robertses signed the Agreement, indicating that they were

accompanied the March 11,2010, fax to the Robertses. 10. A Dargon Law Film Client Flat Fee Agreement ("Agreement") for law related services

move forward on a loan modification application. you are entitled to," and detailed what steps the client must take before Dargon could stated that"[an] attorney ... is your best hope to get the maximum amount of reductions 9. In a fax to the Robertses dated March II, 2010, Dargon Case Consultant Amber Meissner

commercial advertising Dargon's mortgage loan modification services. 8. The Robertses had called the Dargon Law Firm ("Dargon") after viewing a TV

Patricia Roberts of Newton, North Carolina. 7. On July 6, 2010, the ADO received a letter (dated June I, 20 I 0) written by Kenny and

State describes its primary business purpose as"attorney services to the public." 6. Dargon Law Firm's Certificate of Formation filed with the New Hampshire Secretary of

5. Attorney Daniel P. Dargon was the registered agent and principal of Dargon Law Firm.

primary office was located in Concord, New Hampshire. 4. Dargon Law Firm P.L.L.C. was created in New Hampshire on November 14,2008. Its

modifications, debt settlements, and traditional legal matters as needed. 3. Mr. Simensen was a salaried employee of the firm, working with clients seeking loan p. 3 Page 3 of9

look and asked Mr. Simensen to call back in approximately two weeks. another possible option for the Robertses. Mr. Tidwell agreed to give the matter a second 25. Mr. Simensen then asked Mr. Tidwell to take a closer look at the request and suggest

to a savings of approximately $30.00 per year for the Robertses. 24. This extension of the telm for repayment of the loan offered by Vanderbilt would amount

offer the Robertses an extension of the repayment period. home, and that those types of/oans were structured differently. Vanderbilt could only Tidwell informed Mr. Simensen that the mortgage loan was secured by a manufactured 23. The following day, Mr. Simensen called Vanderbilt and spoke to Mike Tidwell. Mr.

placed calls to Mr. Roberts. of times, speaking with Mr. Simensen on at least three occasions. Mr. Simensen also 22. After signing the Client Fee Agreement, Mr. Roberts called the Dargon office a number

Sirnensen, Esq., Dargon Law Firm, PLLC." to Vanderbilt. The fax was on Dargon Law Firm letterhead and was signed by"Erik J. 21. On April 15, 2010, Mr. Simensen prepared and faxed a loan modification request package

fOlm to draft a Hardship Letter. difficulty making payments on our/my mOligage loan. Attorney will use this my/our checkmarks ("--I") the one or more events that contribute to my/our I/We amlare submitting this form to my/our Attorney and indicating by

20. The Robertses also completed and returned a Hardship Affidavit Form. The form states:

Tennessee. mOligage lender, Vanderbilt Mortgage and Finance, Inc. ("Vanderbilt") of Maryville, 19. In response, the Robertses provided a Monthly Loan Statement they received from their

assemble and forward to the Dargon office. 18. Mr. Simensen's letter also included a list of documents the Robertses would need to

The letter is signed by"Erik J. Sirnensen, Esq., Dargon Law Firm, PLLC."

commence the loan modification process. Your file has been opened and assigned to Attorney Erik Simensen to This confilms that you have become a client of the Dargon Law Firm, PLLC.

17. On March IS, 20 I 0, Dargon Law Firm sent a letter to the Robertses stating: p. 4 Page 4 of9 the Respondent violated the following Rules of Professional Conduct. The PCC accepts the Stipulation and accordingly finds clear and convincing evidence that

Stipulation ~~ 1-36 at 1-6.

his vacation. without any advance notice he was laid off and did not return to Dargon Law Film after 36. Mr. Simensen planned to follow up with Vanderbilt when he returned to the office, but

Robertses' loan was not likely to be meaningfully modified. requesting that Mr. Tidwell reconsider the initial assessment by Vanderbilt that the 35. Mr. Simensen acknowledged having contacted Vanderbilt on the Robertses' behalf and

package to Vanderbilt the day he had received all of the documentation he needed. 34. Regarding the Robertses' file, Mr. Simensen confirmed that he sent the loan modification

any cases assigned to him. other lawyers that what he was doing was permissible conduct and that he could handle 33. Regarding out-of-state loan modification clients, Mr. Simensen relied on assurances of

Fee Agreement with the firm was executed. clients, and the lawyers handled the loan modification applications after the Client Flat determined by"the office." The firm employed sales associates to screen and engage the 32. According to Mr. Simensen, case assignments to attorneys at Dargon Law Firm were

31. On November 15, 2010, Mr. Simensen came to the ADO for an interview.

Interview with the Attorney Discipline Office

30. The Dargon Law Firm ceased operations on or about September 1,2010.

completed. their mortgage loan would yield, at best, minimal savings. No loan modification was ever 29. The Robertses had paid $1,500.00 to Dargon before being told that a"modification" of

28. Mr. Roberts only spoke with Mr. Russell on one occasion.

27. The Robertses' file was taken over by Attorney Joseph Russell.

furlough. There was no guarantee that he would be recalled to work. While vacationing, he received word from Dargon that he was being placed on temporary 26. On April 17, 2010, Mr. Simensen left for what he thought would be a brief vacation. p. 5 Page 5 of9 profession, and prevent similar conduct in the future." e.g., Conner's Case, 158 maintain public confidence in the bar, preserve the integrity of the legal The purpose of the Court's disciplinary power"is to protect the public,

Stipulation ~~ 38-45 at 6-7.

a violation ofN.H. R. Prof. Conduct 8.4(a). Because the above rule violation is proven by clear and convincing evidence, this constitutes

represents clear and convincing evidence of a violation of N.H. R. Prof. Conduct 5.5 (a). parties, and his negotiation of the terms of the Robertses' residential mortgage loan, 43. Mr. Simensen's conduct with respect to his communications with the Robertses and third

Robertses with respect to their application. modification package to the bank, and actively represented the legal interests of the documents were needed to apply for the loan modification, prepared and submitted a loan As the attorney assigned to the Robertses' case, Mr. Simensen determined what who lived in North Carolina, in loan modification negotiations with a Tennessee bank. 42. Mr. Simensen engaged in the unauthorized practice of law by representing the Robertses,

New Hampshire. 41. Mr. Simensen is not admitted to practice law in North Carolina nor any state other than

mortgage loan. and then took the initial steps necessary to negotiate a modification of the clients' 40. In this case, Mr. Simensen held himself out as an attorney to the clients and their lender,

Chapter 218:1, Laws of 2002, Task Force on the Definition of the Practice of Law). responsibilities on behalf of another entity or person(s)." Id (citing N.H. HB 1420, the practice of law included but was not limited to"negotiation of legal rights or New Hampshire Superior Court (Fitzgerald, J.) stated that, for the purposes of that case, 39. In Kamasinski v. McLaughlin, N.H. Super. Merr. Co. 2001-E-0386, (Jan. 30,2003) the

client in matters connected with the law." 7 C.J.S. § 26. 38. Under the broadest of definitions"[The] practice oflaw includes all actions taken for a

violation of the regulation of the legal profession of that jurisdiction. 37. Under N.H.R. Prof. Conduct 5.5 (a), a lawyer shall not practice law in a jurisdiction in

baseline sanction in the instant case: following sections of the Standards are relevant to determining the appropriate of the legal profession by engaging in the unauthorized practice of law. The misconduct. Clearly, Mr. Simensen caused injury to the reputation and integrity The third prong requires analysis of the injury caused by Mr. Simensen's constituted the unauthorized practice of law. lender. However, he was negligent in failing to determine that what he was doing doing, and he knew he presented himself as an attorney to the Robertses and their Simensen acted knowingly with respect to the loan modification work that he was Simensen's mental state. The facts of this case suppOli the conclusion that Mr. The se,cond prong of the three-part test requires analysis of Mr. Standards, II - Theoretical Framework. his duty as a professional when he engaged in the unauthorized practice of law. Under the first prong of the analysis, Mr. Simensen's misconduct violated appropriate sanction.") factors, the first step is to categorize the respondent's misconduct and identify the determining a baseline sanction. See Conner's Case at 303. ("In applying these three steps create the framework for characterizing the misconduct and (quoting Douglas's Case, 155 N.H. 613,621 (2007)); Standards §3.0. The first misconduct; and (d) the existence of aggravating or mitigating factors." Id. lawyer's mental state; (c) the potential or actual injury caused by the lawyer's sanctions for any act of attorney misconduct:"(a) the duty violated; (b) the Standards set forth a four part analysis for cOUlis to consider in imposing has not adopted the Standards, it looks to them for guidance. !d. at 303. The appropriate sanction for the Unauthorized Practice of Law. Although the Court Lawyer Sanctions (1992) ("Standards") provide guidance when establishing an N.H. 299, 303 (2009). The American Bar Association's Standards for Imposing p. 7 Page 7 of9 his employment. Mr. Simensen attempted to obtain a loan modification for the followed the practices and procedures established by Dargon Law Finn prior to the firm after experiencing a prolonged period of unemployment. Mr. Simensen employed by the Dargon Law Finn for a short period of time, and initially joined was fOlmed by an attorney other than Mr. Simensen. Mr. Simensen was articulated under the Standards, the parties agree that the business enterprise here accepted responsibility for his misconduct. In addition to the mitigating factors of this matter, Mr. Simensen has been cooperative and forthcoming, and he has the practice of law. Standards §9.3. Throughout the investigation and resolution disciplinary record, absence of a selfish or dishonest motive, and inexperience in of mitigating factors in this case, namely Mr. Simensen's absence of a prior sanction." Wolterbeek's Case, 152 N.H. 710 at 714 (2005». There are a number considers the effect of any aggravating or mitigating factors on the ultimate affect the baseline sanction. ld. ("After detennining the sanction, [the Court] analysis: the existence of any aggravating or mitigating factors and whether they sanction is determined, the Court then looks to the fourth and final step in the misconduct here warrant a baseline sanction of Public Censure. Once the baseline The duty violated, the accompanying mental state, and hann caused by the

legal system. and causes little or no actual or potential injury to a client, the public or the instance of negligence that is a violation of a duty owed as professional 7.4 [Reprimand] is generally appropriate when a lawyer engages in an isolated causes injury or potential injury to a client, the public or the legal system. engages in conduct that is a violation of a duty owed as a professional and 7.3 [Public Censure] is generally appropriate when a lawyer negligently injUly or potential injUly to a client, the public or the legal system. conduct that is a violation of a duty owed as a professional and causes 7.2 Suspension is generally appropriate when a lawyer knowingly engages in potentially serious injury to a client, the public or the legal system. to obtain benefit for the lawyer or another, and causes serious or conduct that is a violation of a duty owed as a professional with the intent 7.1 Disbannent is generally appropriate when a lawyer knowingly engages in

7.0: Violations of Other duties Owed as a Professional p. 8 Page 8 of9

Simensen shall pay all costs associated with the investigation and prosecution of this matter. The patties have stipulated and the Committee accepts the Stipulation in that Mr.

For all of the above reasons, the Committee hereby issues a Reprimand.

sanction meet the purposes of attorney discipline in New Hampshire. balancing of aggravating and mitigating factors, warrant a sanction of Reprimand, and that such a employment. The Committee believes, therefore, that the facts in this case, combined with a at the time of his hire, and was following the law firm's practices established prior to his Law Firm for only a short period of time, had experienced a prolonged period of unemployment law. Furthermore, the Committee notes that Mr. Simensen had been employed by the Dargon absence of a selfish or dishonest motive; and Mr. Simensen's inexperience in the practices of cognizant of the mitigating factors involved: the absence of a prior disciplinary record; the Although the baseline sanction here was Public Censure, the Committee was particularly

Stipulation ~~ 46·60 at 8· II.

was permissible conduct. Standards §9.2. Simensen relied on assurances of other lawyers in the film that what he was doing lack of initiative in detennining the ethical implications of his actions. Mr. Simensen's lack of awareness of the impropriety of his conduct, coupled with his Aggravating factors include the vulnerability of the victims and Mr. Robertses is not solely the responsibility of Mr. Simensen. The parties agree that this missed opportunity to provide restitution to the therefore, he had no ability to request that the finn refund the fees they had paid. Robelises' case was made, Mr. Simensen was no longer employed by Dargon and, requested the lender look at more options. Before the final determination on the Robertses. When he was told that the modification would not be substantial, he p. 9 Page 9 of9

File Erik J. Simensen, Esquire Julie A. Introcaso, Disciplinary Counsel Distribution:

violating N.H. R. Prof. Conduct 5.5(a): Unauthorized Practice of Law, and 8.4(a): Misconduct. For the above reasons, the Committee issues a Reprimand to Erik J. Simensen for VI. CONCLUSION