Timothy A. O'Meara (2012)

On February 14, 2011, the Supreme Court Professional ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE brief and orally), for the respondent. Law Office of Joshua L. Gordon on the

professional conduct committee. to press. Errors may be reported by E-mail at the following address: James L. Kruse, assistant disciplinary counsel, of Concord, orally, for the

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as less any advance payments. That day, O’Meara spoke with Mr. Conant who

p. 2 employee from liability in exchange for receiving the $11 million policy limits,

O’Meara told Davis that the Conants would release the paving company and its On January 13, 2006, O’Meara and Davis discussed settlement.

lacked this authority.

the insurance policy limits, and he sent the December 8 letter knowing that he proceed to trial.” However, O’Meara was not authorized to settle the case for limits case. If said limits are not paid, the Conant family has instructed me to

part: “As I have indicated on numerous occasions previously, this is a policy O’Meara sent Davis a letter dated December 8, 2005, stating, in pertinent

informed O’Meara that the insurer did not contest liability.

of the Conants in a Pennsylvania federal court. On December 1, 2005, Davis

On November 3, 2005, O’Meara filed a personal injury lawsuit on behalf

Pennsylvania, to represent the paving company and its employee. $11 million. The insurance company retained Robert S. Davis, of Philadelphia,

him, O’Meara learned that the paving company had insurance coverage totaling

On or about June 3, approximately ten days after the Conants retained

all expenses.

amount recovered” in the case, and that the Conants would be responsible for

agreement, which provided that O’Meara would be paid 33.33% of the “gross meeting, Mr. Conant retained O’Meara and signed a one-page contingent fee representing the Conants in a personal injury lawsuit. As a result of the

food restaurant near the airport to discuss the possibility of O’Meara

Before flying back to Pennsylvania on May 25, he met with O’Meara at a fast Mr. Conant flew home to New Hampshire five days after the accident.

dependent to breathe, and the installation of a feeding tube.

tracheotomy to insert a permanent tracheal ventilator upon which she is

including a cervical spinal fusion to insert steel rods into her spine, a Pennsylvania, she underwent several surgeries to stabilize her condition, where she remained for twenty-three days in critical condition. While in

failure and flown by helicopter to the hospital at the University of Pennsylvania,

Immediately after the accident, Ms. Conant was intubated for respiratory

electrical business, and Ms. Conant was the postmaster in New Castle.

lived in Hampton with their three adult children. Mr. Conant owned his own

the time of the accident, she was forty-seven years old. She and her husband severe spinal cord injury and is now a ventilator-dependent quadriplegic. At driven by an employee of its owner, Lyons & Hohl Paving, Inc. She suffered a

was stopped at a red light when her car was rear-ended by a paving truck May 19, 2005, Ms. Conant was involved in a car accident in Pennsylvania. She demanding to settle for $11 million, Mr. Conant suggested that he reduce his

p. 3 January 26, 2006, to more than $23 million. Because O’Meara had erred by the rest of her life was over $15 million. The planner revised his estimate on certified life planner had opined that the total cost to sustain Ms. Conant for

insufficient to support Ms. Conant’s future needs. On December 26, 2005, a

though he had no authority to do so and even though $11 million was O’Meara had communicated a demand to settle the case for $11 million even with the Conants to discuss settlement. Mr. Conant expressed concern that On or about January 25, 2006, O’Meara and two financial planners met

had simply misconstrued their conversations. settlement demand they had never made. O’Meara told Mr. Conant that Davis

O’Meara that he did not understand how the Conants could have withdrawn a

“withdrew” their demand to settle the case for $11 million. Mr. Conant told

had stated in his January 24 letter (dated January 20) that the Conants In a subsequent discussion, Mr. Conant expressed dismay that O’Meara

was simply the result of inadvertence.”

O’Meara a letter stating, “I trust that the date used on the [January 20] letter $11,000,000.” Upon receipt of O’Meara’s letter dated January 20, Davis wrote my clients have withdrawn their settlement demand for the policy limits of

the phone this morning, this correspondence should serve to inform you that

January 20, four days earlier, stating, in pertinent part: “As we discussed on Also on January 24, O’Meara sent a letter to Davis, which he dated

offer you stated that the plaintiffs now withdraw the offer.”

Subsequent to the above referenced acceptance of the plaintiffs’ settlement

of the plaintiffs’ . . . offer to settle all aspects of this case for . . . $11,000,000. telephone acceptance [today] . . . on behalf of the defendants and their insurer, understanding of the parties’ negotiations to date: “I write to confirm my 3 On January 24, Davis sent O’Meara a letter confirming his

agreed to do so. O’Meara had offered to settle for $11 million, and, on January 24, Davis had

the parties had an enforceable settlement agreement because, on January 13,

Conants would not settle for this amount. Davis responded that he believed agreed to settle the case for $11 million, but O’Meara told Davis that the On January 24, O’Meara and Davis again discussed settlement. Davis

revoked. $11 million or that, to the extent he ever had such authority, it had been O’Meara did not inform Davis that he lacked the authority to settle the case for

even if the insurer offered this amount. Between January 13 and January 24, confirmed that O’Meara was not authorized to settle the case for $11 million, shall be no more than and no less than[ ] $2,000,000.” Mr. Conant telephoned

p. 4 more tha[n] $11,000,000 then the total of all attorneys fees and costs inclusive

“to be negotiated,” the memorandum stated: “If the final settlement offer is no contingent fee agreement. However, instead of stating that O’Meara’s fee was of Understanding Regarding Fees,” purporting to confirm the modified

The next day, February 26, O’Meara faxed Mr. Conant a “Memorandum

handwritten change to the original fee agreement. fee was “to be negotiated.” Both Mr. Conant and O’Meara initialed this

be paid 33.33% of the gross recovery in the case, the agreement stated that his

contingent fee agreement. As modified, instead of stating that O’Meara would Ultimately, the Conants and O’Meara agreed to modify the original

fee and “would win.”

they terminated his services, he would sue them for his one-third contingency

O’Meara responded that litigation “gets ugly.” He also told the Conants that if fire you now?” When asked what would happen if the Conants fired him, and at one point, Ms. Conant mouthed to O’Meara: “Tell me why I should not The exchange between O’Meara and the Conant family became heated,

None of the other Conants responded to Craig’s comment. been informed that a $2 million fee was reasonable in a case such as this one.

occurred, angering Mr. Conant. Mr. Conant’s brother, Craig, said that he had

would be willing to reduce his $3.67 million potential fee by $500,000 if this event the case settled for the policy limits of $11 million. O’Meara said that he Mr. Conant asked O’Meara what he thought his fee should be in the

$12.5 million needed to be placed in an annuity.

O’Meara that the family believed that, to meet Ms. Conant’s projected needs, 25 to prepare for the mediation. At some point, Mr. Conant shared with met with Mr. Conant and the other members of the Conant family on February

scheduled for surgery that her family feared she would not survive. O’Meara

mediation in federal court on February 27, only days before Ms. Conant was The dispute between the insurer and the Conants was scheduled for

case for $11 million.

O’Meara conceded that the Conants “had not authorized [him]” to settle the Conants had rejected the insurer’s offer to settle the case for $11 million. rather a solicitation of an offer from the insurer, and that on January 24, the

December 8 demand was not an “offer” to be “accepted” by the insurer, but

24 settlement agreement. O’Meara objected to the motion, arguing that his On January 31, the insurer filed a motion to enforce the alleged January

his fee by $166,000. fee. O’Meara agreed to consider doing so and, ultimately suggested reducing p. 5 B. Disciplinary Proceedings

remaining $413,000. $837,000 of the $1,250,000 held in escrow and awarded the Conants the February 27 agreement. Ultimately, the arbitrator panel awarded O’Meara

agreed on February 25 to the essential terms of what later became the

testimony to induce the arbitrators into believing that the Conants had, in fact, testified to the contrary, and the PCC found that O’Meara presented false 25, the Conants had agreed to pay him $2 million in fees. Every other witness

counsel, O’Meara testified that, before he left the Conants’ home on February During the arbitration, at which the Conants and O’Meara each had

reasonable result in their personal injury case. Conants could not claim in the arbitration that O’Meara failed to obtain a

issue of how this amount should be divided. They also agreed that the

an undisputed fee of $750,000, place $1,250,000 in escrow, and arbitrate the The Conants and O’Meara agreed that the Conants would pay O’Meara

$11.5 million.

2006. On March 6, the parties settled the underlying personal injury action for O’Meara’s conduct, the Conants terminated his services effective March 5, million (the policy limits of $11 million plus $500,000). Unhappy with

mediation, the final offer from the paving company and its insurer was $11.5

its insurance policy limits, it would likely declare bankruptcy. At the end of the

Professional Conduct 1.2(a) (Scope of Representation), 1.7 (Conflict of Interest),

verified that if the paving company were forced to pay more than $500,000 over The mediation took place as scheduled. At the mediation, the mediator

of charges to O’Meara, alleging that he had violated New Hampshire Rules of On April 1, 2009, the Attorney Disciplinary Office (ADO) issued a notice

the family in the imminent mediation.

O’Meara said that he would not proceed with the mediation unless

because he feared that if he did not do so, O’Meara would refuse to represent Mr. Conant believed that he had no choice but to sign the memorandum

m[illion] then 20% for all amounts recovered over 14,500,00[0].”

members of his family met O’Meara at the federal courthouse in Pennsylvania. On February 27, the day of the mediation, Mr. Conant and other

no more than and no less than[ ] $2,000,000.00 for all settlements up to 14.5 sign, which stated: “The total of all attorneys fees and costs inclusive shall be at least a $2 million fee. O’Meara gave Mr. Conant a new memorandum to

because it did not reflect the parties’ February 25 agreement. O’Meara that day and explained that he would not sign the memorandum demand to settle when, in fact, it was a “Dumas p. 6 O’Meara first argues that the PCC mischaracterized the demand as a

with the client as to the means by which they are to be pursued.” N.H. R. Prof. against the insured. Dumas disbarment as set forth in Standard 5.11(b) of the ABA Standards for Imposing decisions concerning the objectives of representation, and . . . shall consult

O’Meara violated the Rules. See amount. million even though the Conants had not authorized him to settle for this Davis, he communicated a demand to settle the personal injury case for $11

occurred and, if so, the sanction. Bruzga’s Case, 111 N.H. at 44. Under Dumas, an insured may action against a liability insurer for negligent failure to settle tort claims finding that the correct baseline sanction for O’Meara’s dishonest conduct was Rule 1.2(a) states, in pertinent part: “[A] lawyer shall abide by a client’s Farm Mut. Auto. Ins. Co., 111 N.H. 43 (1971). Dumas concerned an insured’s

that O’Meara be suspended from the practice of law for three years. We first consider the PCC’s finding by clear and convincing evidence that terminated in the context of a fee dispute.” The PCC, therefore, recommended his December 8, 2005 letter to, and January 13, 2006 conversation with, Conduct 1.2(a). The PCC found that O’Meara violated Rule 1.2(a) because in

on the facts found, a violation of the rules governing attorney conduct has supported by the record, but retain ultimate authority to determine whether, reconsideration, arguing for disbarment. The PCC granted the motion in part, In attorney discipline cases, we defer to the PCC’s factual findings if the practice of law for two years. However, disciplinary counsel moved for 1. Rule 1.2(a) violations. The PCC originally recommended that O’Meara be suspended from In August 2010, the PCC agreed with the Hearing Panel about the rule Sup. Ct. R. 37A (III)(d)(2)(C).

[arose] from conduct that occurred after representation of the client was A. Rules Violations

charged violations, and recommended disbarment. found by clear and convincing evidence that O’Meara had committed the disbarment was not the proper sanction because “the most serious charge Lawyer Sanctions (2005) (Standards). However, the PCC found that

heard by the PCC’s Hearing Panel in October and November 2009. The Panel 8.4(c) (Deceit and Dishonesty), and 8.4(a) (General Rule). The charges were p. 7 “Dumas conclusion, we need not address whether O’Meara had the authority to issue a communicated a settlement demand, we uphold that finding. In light of our

that there is evidence in the record to support the PCC’s finding that O’Meara

original contingent fee agreement by crossing out the reference to 33.33% and contents of his letter when he testified before the PCC. Because we conclude defendant and its employee would be fully released.” Davis confirmed the payments and the property damage payment already made, . . . the corporate

terminated his services; (2) although the parties had agreed to revise the

exchange for payment of the policy limits of the [insurance] policies, less partial

Rule when: (1) he threatened to sue the Conants for his contingency fee if they personal interest of the lawyer.” The PCC found that O’Meara violated this representation of one or more clients will be materially limited . . . by a letter, Davis stated: “On January 13, 2006, . . . [y]ou stated . . . that in

concurrent conflict of interest exists if . . . there is a significant risk that the supports a finding that O’Meara made a settlement demand. In his February limits of $11,000,000.” Moreover, Davis’s February 3, 2006 letter to O’Meara stated that his clients “have withdrawn their settlement demand for the policy 2. Rule 1.7

of the offer. Black’s Law Dictionary

a client if the representation involves a concurrent conflict of interest. A Rule 1.7(a)(2) provides, in pertinent part: “[A] lawyer shall not represent

December 8 letter to Davis as a “settlement demand.” The letter specifically

price ($11 million). the defendants from liability) upon the promise of the insurer to pay the offer demand was an offer: it was a promise by his clients to do something (release

provided that the offeree accepts the offer and pays or promises to pay the price offer to settle. An “offer” is a promise to do or refrain from doing something We reject O’Meara’s assertion that his settlement demand was not an

” demand.

so. In his January 24 letter (dated January 20), O’Meara referred to his insurer’s attorney, even though, as he concedes, he lacked the authority to do convincing evidence that O’Meara communicated a settlement demand to the There is evidence in the record to support the PCC’s finding by clear and

he asserts that he had the authority to issue a so-called Dumas one.” Although O’Meara concedes that he had no authority to settle the case,

demand . . . to invite an offer and set up the [insurer] for a failure to make victim. See id. at 45. O’Meara contends that “all he did was make a Dumas insured tortfeasor may assign his Dumas claim against the insurer to the have been settled within the policy limits. See id. at 44-45. In such a case, an against him for an amount in excess of the policy limits, and the case could maintain such an action when the insured has an outstanding judgment the PCC’s finding by clear and convincing evidence, we uphold it. p. 8 the record on appeal. Because there is evidence in the record that supports

because the panel’s decision was not part of the PCC record and is not part of

his testimony to be credible, we lack a sufficient record to decide this issue To the extent that O’Meara contends that the arbitration panel, in fact, found dispute that the arbitration panel did not award him his entire $2 million fee.

parties agreed to his $2 million fee at the February 25 meeting. Nor does he

O’Meara does not dispute that he was the only witness to testify that the

to which he claimed he was entitled.

because it awarded him a total fee of $1,587,000, instead of the $2 million fee

likely concluded that O’Meara testified falsely about the February 25 meeting

February 25 meeting. The PCC speculated, as well, that the arbitration panel its finding that every other witness contradicted O’Meara’s account of the fee at the February 25 meeting. The PCC reached this conclusion based upon

portions of the testimony as it saw fit.” Appeal of Alexander at liberty to resolve any conflict in the evidence and to accept or reject such conflicted with that of the Conants, “[a]s a fact-finding tribunal, the [PCC] was 3. Rule 8.4(c)(1)

over his primary obligation to further the Conants’ interests.

testifying at the arbitration hearing that the Conants agreed to his $2 million

findings by clear and convincing evidence. Although O’Meara’s testimony The testimony and written statements of the Conants support these O’Meara allowed his interest in securing a $2 million fee to take precedence duty of loyalty to, the Conants.

misrepresentation.” The PCC found that O’Meara violated this rule by falsely a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or Rule 8.4(c)(1) states, in pertinent part: “It is professional misconduct for

aligned. However, there is ample evidence to support the PCC’s finding that interest in collecting a $2 million fee materially limit his representation of, and

O’Meara asserts that, in fact, his interests and those of the Conants were determined that by engaging in this conduct, O’Meara let his own personal Budnitz’ Case morning of the mediation so as to secure the $2 million fee. The PCC, 139 N.H. 489, 491 (1995). to a $2 million fee; and (3) O’Meara threatened to withdraw as counsel on the 403-04 (2012) (quotation omitted) (referring to personnel appeals board); see

without the Conants’ knowledge or consent so that, as revised, it entitled him inserting “to be negotiated” in its place, O’Meara further revised the agreement p. 9 Conner’s Case

violated his duties to be truthful and to act in his clients’ best interests.

unless they acceded to his demand for a $2 million fee. O’Meara’s conduct threatening to withdraw from representation on the morning of the mediation representation of the Conants under the circumstances, and, ultimately, by 9

which may be one of intent, knowledge, or negligence. Id Next, we consider O’Meara’s mental state at the time of his violations,

Rule 1.7(a)(2) by allowing his own interests to interfere with effective existence of aggravating or mitigating factors. Id

for the most serious misconduct.” Id of the legal profession.” Id. B. Sanction, 158 N.H. 299, 303 (2009). “We regard these as bedrock duties

preventing similar conduct in the future. Morse’s Case mitigating factors on the ultimate sanction. Id confidence in the bar, preserving the integrity of the legal profession, and

violation of Rule 8.4(c). Equally serious, in our view, is O’Meara’s violation of potential or actual injury caused by the lawyer’s misconduct; and (d) the PCC, O’Meara’s most serious violation was lying to the arbitration panel, in violation of the Rules. Bruzga’s Case sanction. We retain the ultimate authority to determine the sanction for a id. According to the

violations; it might well be and generally should be greater than the sanction the sanction. Id the sanction for the most serious instance of misconduct among a number of necessarily also uphold its conclusion that he violated Rule 8.4(a). misconduct charges, “the sanction imposed should at least be consistent with

determining the sanction, we then consider the effect of any aggravating or punishing the offender, but on protecting the public, maintaining public respondent’s misconduct and identify the baseline sanction. Id. After

we consider: (a) the duty violated; (b) the lawyer’s mental state; (c) the Having concluded that O’Meara violated the Rules, we turn next to the We look to the Standards for guidance. Id. at 547. Under the Standards,

of the misconduct. Id.

. The sanction we impose must take into account the severity

(2010). We consider the case on its own facts and circumstances in deciding have upheld the PCC’s determination that O’Meara violated several Rules, we, 160 N.H. 538, 546 violate or attempt to violate the Rules of Professional Conduct.” Because we Rule 8.4(a) provides that it is “professional misconduct for a lawyer to whether to impose the ultimate sanction of disbarment, we focus not on

4. Rule 8.4(a) are no substantial mitigating factors in this case. The PCC found that the only p. 10 We next consider the effect of aggravating and mitigating factors. There

injury to the client.” Standards the intent to benefit the lawyer . . . , and causes serious or potentially serious the arbitration, vigorous advocacy cannot include lying to a tribunal. Although O’Meara cannot be faulted for vigorously advocating his position in

Cohen’s Case attorney misconduct involving dishonesty usually justifies disbarment. 10

that seriously adversely reflects on the lawyer’s fitness to practice.” Standards

of a client knowing that the lawyer’s interests are adverse to the client’s with that the Conants agreed to his $2 million fee at the February 25 meeting.

in the mediation. This egregious conduct was improper. See Conants an ultimatum: either agree to a $2 million fee or represent themselves transgression reflects more negatively on the legal profession than a lie,” days before Ms. Conant was scheduled for life-threatening surgery, he gave the

intentional conduct involving dishonesty, fraud, deceit, or misrepresentation Disbarment is also generally proper “when . . . a lawyer engages in . . .

lawyer, without the informed consent of client(s) . . . engages in representation omitted). Here, O’Meara lied under oath when he testified at the arbitration

, 143 N.H. 169, 172 (1998) (quotations, brackets, and ellipsis

concomitant responsibility of truth, candor and honesty. Because no single supra interest in obtaining a lucrative fee. On the morning of the mediation, just at § 5.11(b). “The privilege of practicing law” comes with “the

interests of the client”). baseline sanction is disbarment. “Disbarment is generally appropriate when a “withdrawal can be accomplished without material adverse effect on the and potential harm caused, we conclude, as did the PCC, that the proper Conduct 1.16(b) (attorney may withdraw from representation only when Considering the duties violated, O’Meara’s mental state, and the harm N.H. R. Prof.

profession is substantial whenever an attorney engages in deceit.” Bosse’s allowed his representation of the Conants to be materially limited by his own injury here is injury to the profession. “[I]njury to the integrity of the legal

misconduct. “The Standards Next, we consider the actual or potential injury caused by O’Meara’s

Case, 155 N.H. 128, 132 (2007).

incurred by the Conants for the lengthy fee dispute arbitration, the paramount Conner’s Case, 158 N.H. at 304 (quotation omitted). Aside from the costs legal system, or the profession which results from a lawyer’s misconduct.”

307 (2009). that O’Meara acted knowingly, and we agree. See Wyatt’s Case, 159 N.H. 285, potentially have hindered his judgment, is relevant. Id. The PCC determined volitional nature of the acts, and not the external pressures that could this case, an attorney not only selfishly allows his own personal interests to

p. 11 protect the public and preserve the integrity of the legal profession when, as in

conclude that disbarment is the proper sanction. Disbarment is necessary to mitigating factors, and the presence of numerous aggravating factors, we In light of the egregiousness of O’Meara’s misconduct, the absence of

away.” million fee because, as the PCC found, he “did not want a significant fee to slip so. Most significantly, he pressured his clients into agreeing to pay him a $2

panel, his conduct adversely reflects upon his fitness to practice law. See O’Meara no longer represented the Conants when he lied to the arbitration 11 demanded to settle his clients’ case for $11 million without any authority to do

in the context of a fee dispute. We disagree with this reasoning. Even though Moreover, O’Meara did more than just lie to the arbitration panel. He interests. If anything, this is an aggravating, not a mitigating, factor. purpose of his lie was to further his own interest, at the expense of his clients’ That O’Meara lied in the context of a fee dispute illustrates that the

lied to the arbitration panel, he was no longer the Conants’ attorney and he lied that he has sworn to protect and uphold. Fitzpatrick’s Case baseline sanction, the PCC recommended suspension because, when O’Meara mitigating factors, and even though it recognized that disbarment was the Despite the presence of numerous aggravating factors and the lack of truthful.” Id home). dishonest and fraudulent means to obtain commercial financing for his own cf. Astles’ Case, 134 N.H. 602, 605-07 (1991) (disbarring attorney for using Case, 139 N.H. at 492-93 (disbarring attorney for lying to grand jury and PCC); misconduct. See id. at 218 (disbarring attorney for lying to PCC); Budnitz’ 217 (1989). We have previously disbarred attorneys for engaging in similar

false testimony demonstrated a “serious disregard” for the very institutions Morse’s Case, 160 N.H. at 548; see N.H. R. Prof. Conduct 3.3(a)(1). O’Meara’s prohibited from making false statements of material fact to a tribunal.”

. (quotation omitted). “As officers of the court, attorneys are

violations. “Accordingly, it is the responsibility of every attorney at all times to be his substantial experience in the practice of law; and (5) his multiple Rule an unswerving allegiance to honesty and integrity.” Id. (quotation omitted). Bosse’s Case, 155 N.H. at 131. “Lawyering involves a public trust and requires

(2003); (2) his selfish motive; (3) his failure to acknowledge any wrongdoing; (4) similar misconduct – lying to a tribunal, see O’Meara’s Case, 150 N.H. 157, 159 aggravating factors: (1) O’Meara’s prior disciplinary offense for engaging in generally not considered a mitigating factor). By contrast, there are numerous this factor little weight. See Douglas’ Case, 156 N.H. 613, 621-22 (2007) (delay possible mitigating factor was the delay in proceedings. Like the PCC, we give p. 12 12

date of this opinion. See

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

S o o r d e r e d

satisfies the other requirements of Supreme Court Rule 37(14).

to be readmitted to the bar, he may not do so earlier than three years from the

Examination and the Multistate Professional Responsibility Examination and he be readmitted to the bar unless he passes the New Hampshire Bar

investigation and prosecution of this matter. In the event that O’Meara applies O’Meara is hereby assessed all expenses incurred by the PCC in the

tribunal. No lesser sanction will suffice. take precedence over his duty of loyalty to his clients, but also lies to a