Rebecca J. Rutter (2012)

theironly copiesofthewillsfor her toreview. with and retained Ms. Rutter to update their wills. They provided Ms. Rutter with 4. On November 23,2010,Patricia Doherty and her husband, Sean Doherty, met Her mailing address is P.O. Box 343,Deny, New Hampshire 03038-0343. OfficeofRebecca J. Rutter, located at 52 Lane Road,Deny, New Hampshire. 3. At all times material to this proceeding, Ms. Rutter operated her law office as Law 2. Ms. Rutter has not been admittedto practice in any other state. Rutterwas admittedtopracticeon October29,2001. 1. Rebecca J.Rutteris anattorneylicensed to practice law inNew Hampshire. Ms. following facts byclearand convincingevidence. The Committee acceptstheStipulationas to the facts.This establishesthe I. FINDINGS OF FACT Darling. James R. Martin, Jaye L. Rancourt and Richard D.Sagerwere absent. David N. Cole,Thomas P.Connair,Alan J. Cronheim, Gerald A. Daley andRichardH. Chair,BenettePizzimenti,Vice Chair,Toni M. Gray, ViceChair,Susan R. Chollet, deliberated the abovecaptionedmatter. MemberspresentincludedMargaretH. Nelson, On June19,2012,the Professional Conduct Committee (the"Committee")

Rutter,Rebecca J. advs.PatriciaA. Doherty # 11-005

Alan J.Cronheim Holly B. Fazzino,Administrator Thomas P. Connair * non attorneymember David N. Cole Richard D. Sager Susan R. ChoUet* Jaye L.Rancourt Toni M. Gray,* Vice Chair 603-224-5828 ♦Fax 228-9511 James R. Martin BenettePizzimenti,Vice Chair Concord,New Hampshire 03301 Richard H.Darling* MargaretH. Nelson, Chair 4 Chenell Drive,Suite102 Gerald A. Daley*

I also need for you to set atime-linethat you are willing to stickto....If

you four weeksago... would like to stop by and pick up the copiesofour wills that we left with meetingthe week ofThanksgivingto get our willsupdated.At this point I I have called twice and this marksmy secondemail to youregardingour and stated: voicemailmessageand sent aconfirmingemail.Theemail was sent at 5:26p.m.

13. On Tuesday, December21,2010,Ms. Dohertycalled Ms. Rutter again. She left a 12. Ms. Rutter did not respond to or acknowledgereceiving the phone call or email. December 3,2010. she had told the Dohertys that they would have rough copiesofthe draft wills by 11. Ms. Doherty also sent an email on December9,2010,reminding Ms. Rutter that thatMs. Ruttersaidshe would send on November 23,2010. on the answering machine stating that she never receivedthe email questionnaire 10. On December9,2010,Ms. DohertycalledMs. Rutter's office and left a message theirfinancialrecordswith Ms. Rutter. 9. Along with their only copies of the wills, Mr. and Ms. Doherty left a numberof preparationofthe wills and medical powerofattorney paperwork. Doherty paid, via credit card, a $200 deposit toward the total feeof$500 for the 8. There was no writtenfee agreement, but before leaving Ms.Rutter'soffice, Ms. December 3,2010. receivea rough draftofthe updatedwills by the endofthe following week, 7. At the close ofthe meeting, Ms. Rutter told the Dohertys that they would likely promised toemail to theDohertys later that same day. Dohertys that they would need to fill out an additionalquestionnairewhich she 6. In ordertopreparethemedicalpower ofattorneydocuments, Ms. Ruttertold the go forward andpreparethosedocuments as well. medical powerofattorney for eachofthe Dohertys. They agreed and asked her to 5. During that same meeting, Ms. Rutter offered to complete a livingwilland p. 3 Page 3 of7

ProfessionalConduct. findsclearandconvincingevidencethat theRespondentviolatedthefollowingRulesof The Committeeaccepts theStipulationas to the Rules Violationsandaccordingly II. RULINGS OF LAW ("ADO"). That same day, Ms. Doherty filed her grievance with the Attorney Discipline Office filing a complaint with the New Hampshire Bar Association. 20. The Dohertysleft a note in her drop boxinformingMs. Rutter that they were thatMs. Rutterwas incourt. 19. When they arrived at Ms. Rutter'soffice,theysaw a note on the doorindicating on January4,2011,to retrieve their documents and request a refund. 18. While still awaiting a response from Ms. Rutter, the Dohertys drove to her office following day,Tuesday January4,2011. 17. Ms. Rutter delivered the package for the Dohertys to a Fed-ex drop location the materialstheyprovidedherduringtheNovember 23rdmeeting. containing a refundoftheir retainer (check#819 dated January 3, 2012), and the When she returned to theoffice,sheprepareda fed-expackage to the Dohertys December31, 2010 through theweekend,returningon Monday, January3,2011. 16. Ms. Rutter was outofthe office for the New Year's holiday from Friday full refund and for the returnofall documents by January4,2011. Ms. Rutter.Again, she left avoicemailmessageand sent an email asking for a 15. On December31,2010,Ms. Dohertymadeher third and final attempt to contact 14. Ms. Rutter did not respond to or acknowledge receiving the phonecallor email.

am asking for a complete refund of the $200.00 we have paid you to date. you are unable or unwilling to set a timeline to complete this work than I p. 4 Page 4 of7

violationofN.H. R. Prof.Conduct 8.4(a). 26. In light ofthe fact that Rule1.4(a)(4)was violated, it necessarilyconstitutesa

for basicinformationconstitutesa violationofN.H. R. Prof.Conduct 1.4(a)(4). 25. Ms. Rutter'sfailure to respond or acknowledge herclient'sreasonablerequests requiredsimpleresponsesbut were ignored. expectationscoincidedwith Ms.Rutter'sabilities andintentions.These requests Rutter provide arevisedtimelineforcompletionofthe wills so that her response oracknowledgement ofher inquiry, Ms. Doherty alsosuggestedthat Ms. immediately e-mail anecessaryform to Ms. Doherty. Whilerequestinga 24. Ms. Doherty attemptedto follow-up on Ms.Rutter'srepresentationthatshe would

Clientphone calls should be promptly returned oracknowledged. oftherequestand advisetheclientwhen a responsecan be expected. ifa prompt responseis not feasible, that thelawyer...acknowledge receipt [p]aragraph(a)(4)requiresprompt compliancewith (aclient's)request,or providesguidanceto theapplicationofthis rule. It states:

23. American Bar Association(ABA) Model Code Comment to Rule 1.4states

information... (4) promptlycomply with reasonable requests for

(a) Alawyershall:

22. Rule 1.4states,in part: 31,2010. respond to Ms.Doherty'sinquiries via email andtelephonefrom December 9 - 21. Ms. Rutterbreachedherduty to her clientunder Rule 1.4(a)(4)by neglectingto

neglectofherclient'sinquiries.

Rutter. Her failure tomeet theexpectationsshe had created wascompounded by her

understandablyconcernedand made a number ofattemptsto getinformationfrom Ms.

deadlines sheestablishedby agreementwith her client. Ms. Dohertybecame

taken Ms.Doherty'sinitialpayment,Ms. Rutter failed, withoutexplanation,to meet

analysis, Ms. Rutter violated her dutyofdiligence in this case. Id. at (b). After having

owes to clients. Standards, Part II - Theoretical Framework. Under the first prongofthe

361, 365 (2007). The most important ethical duties are those obligations which a lawyer

mitigating factors andwhetherthey affect the baseline sanction. Grew's Case, 156 N.H.

looks to the fourth and final step in the analysis: the existenceofany aggravating or

determining a baselinesanction.Once the baseline sanction isdetermined,the Court then

The first three steps create the framework for characterizing themisconductand

613,621 (2007)); Standards § 3.0.

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

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

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

guidance. Conner'sCase, 158 N.H. at 303. The Standards set forth a four-part analysis

503,513 (2005).Although theCourthas not adopted the Standards, it looks to them for

sanction must take into account the severityofthe misconduct." Coffey'sCase, 152 N.H.

similar conduct in the future." E.g.,Conner'sCase, 158 N.H. 299, 303 (2009). "The

publicconfidencein the bar,preservetheintegrityof the legalprofession,and prevent

The purposeof the Court'sdisciplinarypower"is to protectthe public, maintain III. ANALYSIS p. 6 Page 6 of7 2ReprimandinNew Hampshire. 1PublicCensureinNew Hampshire.

planningclientstoensurethatall of thenecessaryestateplanninginformationisobtained

February18,2010,whereshewas warnedofthenecessityforfollowingup withestate

Warningissuedin Rutter,RebeccaJ.advs.RobertLefavour # 09-040 on

factors.Underthe Standards, theaggravatingfactorinthiscaseisMs. Rutter'sprior

sanctionshouldbe consideredand/oradjustedinlightofaggravatingand mitigating

Reprimand.Underthesanctionanalysisrecommendedby the Standards, thebaseline

The Committeeagrees with thepartiesthat thebaselinesanction in this case is a

andcauseslittle or noactualorpotentialinjuryto a client. anddoesnot actwithreasonablediligenceinrepresentinga client, 4.11 Admonition2isgenerallyappropriatewhen alawyerisnegligent

or potentialinjuryto aclient. notactwithreasonablediligenceinrepresentingaclient,and causesinjury 4.41 Reprimand isgenerallyappropriatewhen a lawyerisnegligentand does

Standards §4.4,relatestoclientcommunications,andprovidesinpart:

Indeterminingabaselinesanction,the Standards provideadditionalguidance.

andprofessionalismcausednominalinjury.

Dohertys'inconvenience,frustration,and lossofconfidenceinMs. Rutter'sreliability

and importantdocuments.They sufferedno monetarylossoractualinjury.However,the

Rutter'smisconduct.The Dohertysentrustedwith Ms. Rutterwith their retainer funds

The thirdprongrequiresan analysisofactualorpotentialinjurycausedby Ms.

mentalstate.In this case,there isnegligence.

The secondprongof thethree-parttestrequiresanassessmentofMs. Rutter's p. 7 Page 7 of7 File Rebecca J.Rutter,Esquire JulieA. Introcaso,DisciplinaryCounsel Distribution: Chair Margaret H.Nelson August^2012 f^.^Kf^ ^K3aAr-^

matter. Respondent shall pay all costs associated with the investigation and prosecutionofthis The parties have stipulated, and the Committee accepts theStipulationthat the V. COSTS Rutter for violationofNH. R. Prof. Conduct 1.4(a)(4)and 8.4(a). For allofthe above reasons, the Committee issues a Reprimand to Rebecca J. IV. SANCTION

priordisciplinaryrecord. See Supreme CourtRule 37A(I)(fJ.

The Committee did not accept the Stipulatedmitigatingfactoroftheabsenceofa

e) Remorse (§ 9.32(m)).

d) Personalor emotional problems (§9.32(1)),and

(§ 9.32(e));

proceeding,and acceptanceofresponsibilityforthemisconduct

c) Full and free disclosure to the ADO, a cooperativeattitude toward the

b) Willingnessto make restitution {see §9.31);

a) Absence ofa dishonest or selfish motive (§ 9.32(c));

The Committee determinedthat the mitigating factorsincludethe following:

Court Rule 37A(I)(e)(3)(f). (§ 9.22(d)).

so that shecan completethedraftingofdocuments in a timely manner. See N.H. Supreme