Brien L. Ward (2012)

Offices, P.C., on September 13, 2006, on behalf of Homecomings Financial Network represent them in connection with a Notice of Foreclosure Sale issued by Harmon Law 2. On or about September 27, 2006, Donald and Sheila Matthew retained Mr. Ward to

Hampshire 03561. his law practice at Ward Law Office, 7 4 Cottage Street, PO Box I, Littleton, New admitted to practice in 1986. At all times material to this proceeding, Mr. Ward operated I. Brien L. Ward, is an attorney licensed to practice law in New Hampshire. Mr. Ward was

This establishes the following facts by clear and convincing evidence.

The Committee accepts the Stipulation as to the facts, as found by the Hearing Panel.

Ward, Esquire, and Gladys Strickhart, Legal Assistant to Mr. Kruse were also present. Steven M. Gordon, Esquire for the Respondent. Benjamin Siracusa Hillman, Esquire, Brien L. Oral Argument was presented by James L. Kruse, Assistant Disciplinary Counsel, and Lisa Wellman-Ally. Alan J. Cronheim and Gerald A. Daley were absent. David N. Cole, Thomas P. Connair, Richard H. Darling, James R. Martin, Richard D. Sager and Nelson, Chair, Benette Pizzimenti, Vice Chair, Toni M. Gray, Vice Chair, Susan R. Chollet, deliberated the above captioned matter. The following members were present: Margaret H. On October 16, 2012, the Professional Conduct Committee heard Oral Argument and

Ward, Brien L. advs. Donald Matthew (Deceased) and Shiela M Matthew# 10-015

Alan J. Cronheirn Holly B. Fazzino, Administrator Thomas P. Connair * non attorney member David N. Cole Lisa Welirnan-Ally Susan R. Chollet* llichard D. Sager Toni M. Gray,* Vice Chair 603-224-5828 +Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 llichard H. Darling* Margaret H. Nelson, Chair 4 Chenell Drive, Suite I 02 Gerald A. Daley*

forwarded to Homecomings the Matthews' revised financial package. Auction scheduled for Tuesday, March 13,2007. On March 9, 2007, Mr. Ward again 9. A Notice of Mortgage Foreclosure Sale dated February 12, 2007, followed, with a Public

the debt. immediately, subject to the Matthews' right within thirty days to dispute the validity of Matthew that the entire balance of the note, interest, and other charges was due 8. In the meantime, by letter dated February 2, 2007, the Harmon Law Offices notified Mr.

help with the paperwork. Matthews' revised financial package on February 23, 2007, after going to their home to execute a revised financial package. Mr. Ward forwarded to Homecomings the respond to Mr. Ward until February 22, 2007, when it requested that the Matthews explanation of the balance owed on the Matthews' account. Homecomings did not 7. Mr. Ward wrote to Mr. Paul on January 23, 2007, and February 1, 2007, requesting an

would proceed. default; that the repayment agreement was cancelled; and that the foreclosure process 6. By letter dated January 22, 2007, Homecomings notified the Matthews that they were in

2006. Ward followed up on this request for the final repayment agreement on December 6, cease contacting the Matthews directly and requested a final repayment agreement. Mr. 5. On November 20, 2006, Mr. Ward wrote to David Paul and requested that Homecomings

the Matthews. directly mail all monthly mortgage payment statements and acoount payment notices to that account via UPS. The parties also agreed that Homecomings would continue to into his client trust account, and then make timely disbursements to Homecomings from make their monthly payments to Mr. Ward. Mr. Ward, in tum, would deposit the funds Homecomings's assent, Mr. Ward and the Matthews agreed that the Matthews would 4. In order to have a record of payments without having to use certified checks, and with

payments and a balloon arrearage payment to Homecomings on January 11,2007. agreement signed by the Matthews on October 26, 2006, required three installment Matthews and the foreclosure process was suspended. The temporary repayment Homecomings, agreed on the terms of a Temporary Repayment Agreement for the submission of a financial package, Mr. Ward and David Paul, Loan Counselor at 3. Mr. Ward immediately contacted Homecomings. Over the next month and following the

the Matthews' property in Bethlehem, New Hampshire. ("Homecomings"). Homecomings held a J.P. Morgan Chase Bank second mmigage on p. 3 Page 3 of15

18. The Matthews continued to make monthly installment payments through Mr. Ward.

for an opportunity to discuss the Matthews' account. notified Mr. Ward and, on September 20, 2007, Mr. Ward wrote to Homecomings asking they were in arrears and that they were incurring late fees and penalties. The Matthews 17. Later in 2007, the Matthews began receiving notices from Homecomings claiming that

agreement on June 5, 2007. 16. Pursuant to Mr. Ward's advice, the Matthews signed and returned the revised repayment

accrue and, without an immediate response, the plan would be cancelled. been signed and returned to Homecomings. Accordingly, foreclosure fees continued to receipt of installment payments, but noting that the revised repayment agreement had not 15. On June 1, 2007, Ms. Mcanally faxed a"Final Notice" to Mr. Ward, acknowledging

2006 to October 2008. were forwarded to Homecomings from the Ward Law Film during the period, October by Mr. Ward's paralegals, Theresa Lockwood and Tantmy Towle. A total of29 checks of the client tmst account to designated representatives of Homecomings, were handled 14. Receipt and deposit of instalhnent payments from the Matthews, and disbursements out

through Mr. Ward's client tmst account maintained at Passumpsic Savings Bank. payment, followed by additional monthly installments of $1,200 via UPS, disbursed comply with the revised final repayment agreement by making the required lump sum 13. Pending receipt of the accounting requested by Mr. Ward, the Matthews undertook to

payments. Mr. Ward requested a detailed accounting. Mr. Ward indicated that his clients did not understand how they could be behind in their Ward faxed a message to Ms. Mcanally responding to the revised repayment agreement. Apri12007. The final installment was due on March 11, 2008. On March 26, 2007, Mr. required to make an immediate lump sum payment and monthly installments beginning in $8,569.72. Under the terms of the revised repayment agreement, the Matthews were sent the Matthews a revised final repayment agreement showing a payment arrearage of 12. By letter dated March 14, 2007, Kathleen Mcanally, Loan Counselor with Homecomings,

In response to the Petition, the foreclosure sale was cancelled. Petition to Enjoin Foreclosure with exhibits to be filed in Grafton County Superior Conti. 11. On March 13,2007, Mr. Ward forwarded to Homecomings's attorney a 49 page proposed

These negotiations were unsuccessful. negotiate a final repayment agreement with Homecomings and the Harmon Law Firm. 10. Mr. Ward, during the period of February 23,2007, through March 13,2007, attempted to p. 4 Page 4 of 15

Consumer Complaint, nor was he informed initially of Mr. Sorg's representation. payments made on the loan account. Mr. Ward was not provided with a copy of the Homecomings at the New Halllpshire Banking Commission, seeking a full accounting of New Hampshire. Mr. Sorg drafted a consumer complaint for the Matthews to file against 28. In or about Janumy 2009, the Matthews retained Gregory M. Sorg, Esq., of Franconia,

and Homecomings. 27. Mr. Ward took no further action to research and resolve the issues raised by Mr. Stafford

correspondence. that charges assessed by Homecomings were excessive. Mr. Ward was not copied on this discrepancies in records maintained by Mr. Ward and Homecomings and that it appeared 26. Mr. Stafford later wrote to Mr. Matthew on January 9, 2009, indicating that there were

October 26,2006, through October 31,2008. activity) documenting client trust account activity on behalf of1he Matthews from copy of a"category rep01t" (a computer-generated snapshot of client trust account 25. Mr. Ward represents that on December 2, 2008, his office forwm·ded to Mr. Stafford a

Stafford would continue to review the Homecomings account on behalf of the Matthews. payments to Homecomings would be made directly by the Matthews and that Mr. 24. In October 2008, the Matthews and Mr. Ward agreed that, stmting in November 2008,

that, in his view, the balance on the loan should be less than Homecomings was rep01ting. unable to interpret Homecomings's year-to-date summary of the mortgage account and 23. On May 21,2008, Mr. Stafford provided Mr. Ward with a report indicating that he was

arrearage claimed by Homecomings. summary of the mortgage as provided by Homecomings, to determine the basis for the Stafford, EA, of White Mountain Business Services, to review the year-to-date account 22. In or about March 2008, at Mr. Ward's suggestion, the Matthews retained D. Neil

later in February and in March 2008. installment payments, Homecomings issued additional default notices to the Matthews Notwithstanding the Matthews' and Mr. Ward's efforts to continue making monthly forwarded the material to the Matthews with an invitation to call with questions. 21. On February 14,2008, Homecomings faxed an accounting to Mr. Ward. Mr. Ward

of the loan payments as soon as possible. 20. On January 30, 2008, Mr. Ward wrote to Homecomings requesting an updated accounting

19. On November 13, 2007, Homecomings issued another notice of default. p. 5 Page 5 of 15

show Homecomings a copy of its endorsement on it. access this check- through the Passumpsic Bank if necessary-so we can indeed negotiated by Homecomings, and/or (even better) if you could copy of a duly redacted monthly statement showing that this check was I would really, really appreqiate it if you could produce and send me a

these materials in Mr. Matthew's files. Mr. Sorg concluded his letter with the following: cover letter of July 6, 2007, forwarding the check to Homecomings. Mr. Sorg located check #9491 drawn on the Passumpsic Savings Bank client !lust account and Mr. Ward's "while his and your check registers keep telling him he is not." Mr. Sorg found a: copy of investigation as to the basis for Homecomings's claim that the Matthews were in arrears, 34. On March 11,2010, Mr. Sorg wrote to Mr. Ward, summarizing the results of his

and forgot to so advise Mr. Ward. was unable to obtain the information before she left for vacation on Febmary 23, 2010, research the records and provide Mr. Sorg with the information he required. Ms. Towle 33. On February 16, 2010, prior to leaving on vacation, Mr. Ward instmcted Ms. Towle to

the letter on February 15, 2010. request for assistance in accounting for the Matthews' loan payments. Mr. Ward received 32. On February 12, 2010, Mr. Sorg wrote to Mr. Ward again, reminding him of the prior

issue and respond to Mr. Sorg' s request. Mr. Ward instructed his client tmst account administrator, Ms. Towle, to research the and verify that the check was tendered to and negotiated by Homecomings. Upon receipt, findings regarding check #9491. Mr. Sorg requested that Mr. Ward research his records 31. On January 20, 2010, Mr. Sorg wrote to Mr. Ward and advised him of Mr. Stafford's

payment from Mr. Ward's office. Mr. Ward did not receive a copy of this report. Stafford also indicated that he had been unable to get any information concerning this [client] Trust Account (#9491 7/6/07 for $1,200 not shown in the bank's record)." Nfr. misunderstanding is a check showing as having been disbursed from Brien Ward's completed his review of the records and concluded that"the primary source of the 30. On January 8, 2010, Mr. Stafford reported to Mr. Matthew in writing that he had

provided a copy of this information. notified the Matthews that the July 2007 check had not been received. Mr. Ward was not payment from Mr. Ward's client trust account. This was the first time that Homecomings accounting indicated that Homecomings could not locate the July 2007 mortgage an itemized accounting which Messrs. Sorg, Matthew, and Stafford reviewed. This 29. On March 17, 2009, Homecomings responded to the consumer complaint and produced p. 6 Page 6 of 15

regular review of the escrow activity. It seems clear that this is the crux of Ward's office did not discover that the check had never cleared during a the check. However, it is also a little strange that someone in Attorney that Homecomings Financial ever notified them that they had not received was sent in the same fashion as the previous ones had and it is not clear or the bank's. It appears that, as Brien's paperwork indicated, the check made by Brien's office and whether it should have been his responsibility about the confusion. Now, the issue is whether or not the payment was not cashed happened in the fall of 2009 and that occurrence explains much Homecomings. The discovery of the check (#9491 dated 7/6/07) that was amortization. These were consistently lower amounts than were shown by reconstruct the amounts that should have been due, based upon a standard why additional charges were being posted to the account. I attempted to From the outset, it was virtually impossible to detetmine how much or Results of the review of Homecomings Paperwork-

Mr. Stafford also infotmed Mr. Matthew of the following:

provided to this office. told the same thing. The information concerning the check was never would be fotthcoming. On the 3rd occasion I spoke with Brien and was first 2 times I spoke with a secretary and was assured that the infotmation on the check which was never shown as received by Homecomings. The I called Brian Ward's office on 3 different occasions to get information Calls to Attorney Ward's Office-

Stafford's work through March 8, 2010, Mr. Stafford noted the following: 38. In an additional report from Mr. Stafford to Mr. Matthew, detailing charges for Mr.

check had not cleared and had not been returned. sent and delivered to Homecomings via UPS. Ms. Lockwood also confirmed that the Lockwood reviewed Mr. Ward's office records and confirmed that the check had been the records of the client trust account to determine whether check #9491 had cleared. Ms. Mr. Ward contacted the Passumpsic Savings Bank and requested that the bank research 37. Following receipt of the ADO's correspondence and a copy of the Matthews' grievance,

36. On March25, 2010, the ADO wrote to Mr. Ward infotming him of the grievance.

requested on the Matthews' behalf. repeatedly to address the problem with Homecomings and to produce accounting records Ward had violated the New Hampshire Rules ofprofessional Conduct by failing 35. On March 23,2010, Mr. Matthew filed a grievance with the ADO, alleging that Mr. p. 7 Page 7 of 15 submit a claim for the Matthews' losses which Mr. Ward would present to his insurance 43. On July 2, 2010, Mr. Sorg responded to a message from Mr. Ward inviting Mr. Sorg to

whether that was the cause of the default claimed by Homecomings. time prior to March or April 2010 to determine whether Check #9491 had cleared and 42. Neither Mr. Ward nor his staff undertook a careful review of the foregoing records at any

not cleared. Matthews after each transaction, would have consistently revealed that Check #9491 had lacking a complete histoty of transactions or a tunning balance of funds on hand for the category reports available through Mr. Ward's accounting software program, while 2007, payable to Homecomings on behalf of the Matthews, had not cleared. Similarly, the Passumpsic Savings Bank client tmst account reflects that Check #9491, dated July 6, 41. Each month from and after July 2007, Mr. Ward's record of uncleared checks drawn on

July 7, 2007, was the only mortgage payment check that did not clear. performed monthly reconciliations of the client trust account and that check #9491, dated as supplying records in response to requests fi·om Mr. Stafford. Ms. Towle stated that she the multiple times they supplied records to Mr. Matthew per his frequent requests) as well respective roles in managing Mr. Matthew's loan payments to Homecomings (including 40. On April23, 2010, Ms. Lockwood and Ms. Towle executed affidavits attesting to their

receive the July, 2007 payment. We were never notified by Homecoming [sic] Financial that they did not UPS charged our account for the delivery. overnighted [sic] to Homecoming [sic] Financial on July 7, 2007 and that I have also enclosed documentation showing the original check #9491 was original check never cleared through the bank. Passumpsic Bank after review of their bank records determined that the matter. 2007, which has not cleared from our tmst account regarding the above for replacement of check #9491 drawn on Passumpsic Bank, dated July 6, find a check in the amount of$1,200.00, After an extensive review of our file and bank records, enclosed please

replacement for check #9491. Mr. Ward wrote: 39. On April2, 2010, Mr. Ward sent Mr. Sorg a check in the amount of$1,200.00 as a

Mr. Ward did not receive a copy of this report. inadvertent error made by either the bank or Mr. Ward's office. the matter at hand and that the Matthews have been unfairly charged for an p. 8 Page 8 of 15

accounts, including 1,041 deposits for a total of $58,987,875, and disbursement of 5, 797 the period 2006-2009, his office successfully administered the various IOLTA trust 50. Mr. Ward's practice is primarily residential real estate. According to Mr. Ward, dming

in compliance with Rule 50. prepared by his staff and presented for his signature with the assurance that the office was of accounting records pertaining to the client trust account. The Certificates were 49. Mr. Ward's aforesaid Certificates of Compliance were not based on his personal review

discrepancies. Reconciliations, properly undertaken each month, would have revealed such necessarily reflect the actual ending balance for the client at the end of that month. client after every transaction. As a result, the ending balance shown on the report did not provide a complete history of transactions or a running balance of funds on hand for the The category reports, which Mr. Ward represents were generated monthly, did not period 2007 to 2010, did not satisfY the requirements ofN.H. Supreme Court Rule 50. reports pertaining to activity on behalf of the Matthews and other clients during the checks drawn on the client trust account at Passumpsic Savings Bank, as well as category 48. Mr. Ward acknowledges that efforts of his staff to generate monthly lists of uncleared

with N.H. R. Prof. Conduct 1.15 and N.H. Supreme Court Rule 50. own"personal knowledge," client funds had been held in accounts in full compliance for each year during the period 2007 to 2010, attesting to the fact that, based upon his 47. Mr. Ward filed Certificates of Compliance with New Hampshire Supreme Court Rule 50

$3,201:91. to Mr. Matthew on February 11, 2011, enclosing a check for restitution in the amount of 46. Pursuant to an agreement with the ADO and Mr. Ward's counsel, Mr. Ward sent a letter

fees. provided additional services pro bono and incurred non-reimbursed costs, including UPS 45. Mr. Ward stopped billing the Matthews for legal services rendered after March 2007. He

credited. The lender agreed, however, to waive related penalties and fees. (June 2011) confirming that the subject $1,200 check was never cashed and would not be Department, Mr. Matthew received letters from Homecomings (July 20 I 0) and GMAC 44. After filing another consumer complaint against Homecomings with the Banking

approximately $6,800. consulting accountant fees, and fees paid to Mr. Ward ($3,000) amounted to fees. Out of the total loss claimed, late fees and other charges assessed by Homecomings, carrier. Mr. Sorg outlined the losses totaling $12,587, which did not include Mr. Sorg's p. 9 Page 9 of 15

56. lvfr. Ward's conduct, constitutes clear and convincing evidence of a violation of Rule 1.1.

with N.H. Supreme Court Rule 50. review and reconciliation of such account as it pertained to each client, in compliance implement a system of accounting and recordkeeping for the account, including monthly client activity in that account, Mr. Ward breached his duty by failing to understand and uncleared checks drawn on the client trust account and"category reports" pertaining to Mr. Ward at Passumpsic Savings Bank. While Mr. Ward's staff generated lists of 55. The Matthews' money was properly held in an IOL TA client trust account maintained by

compliance with N.H. Supreme Court Rule 50. including the use of a system for holding, accounting and recordkeeping of client funds in 54. Mr. Ward owed a duty to Mr. and Mrs. Matthew to provide competent representation,

53. The foregoing paragraphs are incorporated herein by reference.

New Hampshire Rules of Professional Conduct 1.1, 1.3, 1.15(b), 5.3 and 8.4(a). 52. Mr. Ward's conduct in this case constitutes clear and convincing evidence of violations of

evidence. violations of the Rules of Professional Conduct that have been violated, by clear and convincing The Committee accepts the Stipulation and the Hearing Panel Report with regard to the

Stipulation~~ 1-51 at 1-14.

render him in compliance with N.H. Supreme Court Rule 50. First American Title access to all bank records, he relied in error on these reviews to under the First American Title reviews. While Mr. Ward represents that his staff afforded real estate trust accounts. According to Mr. Ward, these accounts consistently reconciled which Mr. Ward understood would include a tlu-ee-month account reconciliation of all controls and procedures in place to protect fiduciary funds held for real estate clients," of Mr. Ward's real estate trust accounts to determine whether Mr. Ward has"adequate 51. First American Title Insurance Company has conducted annual two-day financial reviews

checks. p. 10 Page 10 of 15 the client trust account and competently performed monthly reconciliations of b. implemented and understood a proper accounting and recordkeeping system for

raised by Homecomings; a. maintained and consulted records necessary to address the accounting issues

train and supervise his staff to ensure that they: 64. Mr. Ward breached that duty by failing to make reasonable and timely efforts to properly

obligations as a lawyer. conduct of his non-lawyer employees was compatible with Mr. Ward's professional 63. Mr. Ward owed a duty to Mr. and Mrs. Matthew to make reasonable efforts to ensure that

Rule 5.3: Responsibilities Regarding Nonlawyer Assistants

violation of Rule 1.3. 62. Mr. Ward's conduct in this regard constitutes clear and convincing evidence of a

waived), notices of default and foreclosure, and consulting costs. These breaches resulted in the unnecessary accrual offees and penalties (which were of a loan payment to be properly accounted for and credited to the Matthews' account. 61. The foregoing breaches caused a substantial delay in discovering and rectifying the failure

to retain to address such issues. Homecomings and to produce information to others whom the Matthews were compelled 2007 to 2010 in order to respond in a timely fashion to the accounting issues raised by Further, Mr. Ward failed to carefully scrutinize client tlust account records for the period accounting and recordkeeping system in compliance with N.H. Supreme Court Rule 50. 60. Mr. Ward breached these duties by failing to implement, maintain, and use a client trust

recordkeeping system in compliance with N.H. Supreme Court Rule 50. 59. Mr. Ward also had a duty to implement, maintain, and use a client tlust accounting and

such issues. infonnation by others in their attempt to assist the Matthews in analyzing and resolving accounting issues raised by Homecomings, as well as to respond to requests for 58. Mr. Ward had a duty to undettake timely and effective action to research and address

credited to the Matthews' loan account. record of the loan payments made by the Matthews, received by Homecomings, and 57. Mr. Ward owed a duty to Mr. and Mrs. Matthew to diligently maintain a competent

8.4(a). Stipulation~~ 52-67 at 14-17. 1.15(b) and 5.3, there is necessarily clear and convincing evidence that he violated Rule 68. Because there exists clear and convincing evidence that Mr. Ward violated Rules 1.1, 1.3,

convincing evidence. Based upon the facts above, the Committee finds a violation of this mle by clear and

with every other aspect of those Rules." records specified in the New Hampshire Supreme Court Rules and shall comply property or any portion thereof. The lawyer shall maintain the minimum financial preserved for a period of six years after final distribution of such funds or other possession from the time of receipt to the time of final distribution and shall be disposition of all funds and other property of the client at any time in the lawyer's "Records shall be maintained by the lawyer of the handling, maintenance and

Rule of Prof. Conduct 1.15(b): Safekeeping Property, which rule reads as follows: 67. The Committee also accepts the finding of the Hearing Panel that Mr. Ward violated N.H.

5.3(a)-( c). 66. The foregoing conduct constitutes clear and convincing evidence of a violation of Rule

201 0 were inaccurate. Compliance with Supreme Court Rule 50 filed by Mr. Ward during the period of2007 to maintained in compliance with N.H. Supreme Court Rule 50; and Certificates of address the accounting issues raised by Homecomings; the client tlust account was not 65. As a result of such breaches, timely and effective review of records was not undertaken to

upon which Mr. Ward could reasonably rely. Compliance under N.H. Supreme Court Rule 50 with assurances of compliance c. reliably prepared and presented for Mr. Ward's signature Certificates of

such account, as required under N.H. Supreme Court Rule 50; and p. 12 Page 12 of 15

that the Respondent signed the New Hampshire Supreme Court Annual Trust Account such a simple accounting problem took three years to uncover. Equally as disturbing was the fact would have identified the source of the problem. The Panel found it difficult to comprehend how should have undertaken to immediately reconcile his client trust account for the Matthews, which payment for which the Respondent had assumed responsibility. The Respondent could and Homecomings placed the Matthews in default for failure to make a monthly payment- a on his client trust account. He could and should have known that something was amiss when immediately ascertain that the root cause of the Matthew's foreclosure woes was a check written The Panel determined the Respondent acted knowingly and negligently when he failed to

b. The lawyer's mental state:

maintain a proper client trust accounting system and to research the aforesaid accounting issues. Mr. Ward also violated his duty to properly train and supervise staff upon which he relied to system of client trust accounting in compliance with New Hampshire Supreme Court Rule 50. accounting issues raised by Homecomings. Mr. Ward violated his duty to implement and use a accounting of motigage payments, as well as timely research, analysis, and response to with competent and diligent representation with regard to the effective disbursement and Under the first prong of the analysis, Mr. Ward violated his duty to provide the Matthews

a. Ethical duties violated:

addressed each step of the analysis and such analysis is incorporated in part herein: of the analysis are considered in determining whether they affect the baseline sanction. The Panel aggravating or mitigating circumstances. Once the baseline has been determined, the other parts the extent of actual or potential injuty caused by the lawyer's misconduct; and d) the existence of determine the appropriate sanction: a) the ethical duty violated; b) the lawyer's mental state; c) N.H. 299, 303 (2009). In accordance with the Standards, there is a four-step analysis to them for guidance in their analysis of an appropriate sanction in this case. Conner's Case, 158 Imposing Lawyer Sanctions (1992) (Standards), the Hearing Panel ("Panel") properly looked to Although the Court has not adopted the American Bar Association's Standards for

III. ANALYSIS p. 13 Page 13 of 15 mitigating factors in Cox's Case were virtually identical to the matter before the Panel:"As easily resolved had the Respondent maintained appropriate trust accounting." Id, at 564. The money is absolute." Cox's Case, 148. As in Cox's Case, the problem at hand"could have been Reprimand, because"the duty to provide a full, detailed and accurate accounting of a client's degree of financial hmm weighted towm·d a lesser sanction, the acts complained of warrant a Panel's conclusion that while the Respondent's position in his community and the minimal Reprimand based upon Cox's Case, 148 N.H. 565 (2002). The Committee concurs with the Here, the Professional Conduct Committee concludes that the baseline sanction is a

of client funds in compliance with the Rules. Accountant to advise on measures to ensure proper and effective handling v. Voluntary determination to retain the services of a Certified Public iv. Acceptance of responsibility for misconduct; and, iii. Full disclosure and full cooperation with the Attorney Discipline Office; ii. There are no allegations of deceit or dishonesty; i. The Respondent is a well-respected attorney with an unblemished record;

sole aggravating factor. The mitigating factors are as follows: The Panel found the Respondent's substantial experience in the practice of law to be the

d. Aggravating or mitigating circumstances:

harm to the Matthew's credit rating, as well as potential harm to the legal profession. included harm to the client-attorney relationship, loan defaults with threat of disclosure, potential negate the seriousness of the misconduct. The Panel found that actual or potential injury also home. The· fact that the dollar amount in this case might be considered deminimus does not financial harm was significant, i.e., foreclosure of the second mortgage held on the Matthew's as a result of the Respondent's inadequate client trust accounting practices, the potential for While the parties agreed that there was little to no actual financial injury to the Matthews

c. The extent of the actual or potential injury caused by the lawyer's misconduct:

on a monthly basis as required by Rule 50. had not reconciled his IOLTA client trust account (Interest on Lawyers Trust Accounts program) Compliance Certificate annually, knowing he was not in compliance by virtue of the fact that he p. 14 Page 14 of15

access to the financial consultant and his/her files pertaining to Mr. Ward's shall have complete access to Mr. Ward's accounting records, as well as complete • For purposes of monitoring and ensuring compliance with these conditions, the ADO month for a period of 6 months. • Mr. Ward shall file with the ADO such monthly reconciliations by the 151h of each Court Rule 50. accounts, under the guidance of the consultant and in compliance with N.H. Supreme shall perform monthly reconciliations in connection with all of Mr. Ward's client trust • Commencing in the month following the Committee's order, Mr. Ward and his staff confirming satisfactory implementation of all of the consultant's recommendations. and issued by the financial consultant, identifying relevant recommendations and conditions, Mr. Ward shall obtain and file with the ADO a detailed report prepared • Within 60 days of the date of the Committee's order adopting these or similar • Mr. Ward shall comply with the financial consultant's recommendations. N.H. Supreme Court Rule 50, including acquisition and training of staff. satisfactory accounting practices and procedures designed to ensure compliance with of client funds and to make detailed recommendations for the implementation of approved by the ADO) to review Mr. Ward's office practices relating to the handling • Mr. Ward shall retain at his own expense an independent financial consultant (a CPA

appropriate discipline in this matter is a Reprimand with the following conditions: oral argument before the Professional Conduct Committee, the Committee concludes that the Having made the aforementioned findings and rulings, and based upon the record and

keeping." Id, at 565. In Cox's Case, a letter of reprimand was ordered. Id. satisfy [the client's] requests but was unable to do so apparently because of inadequate record unblemished record ... we ascribe no selfish or dishonest motive ... the respondent attempted to mitigating factors, we recognize the Respondent is a well-respected attorney with an p. 15 Page 15 of15

File Benjamin Siracusa Hillman, Esquire Steven M. Gordon, Esquire James L. Kruse, Assistant Disciplinary Counsel Distribution:

December Jb.., 20 12

Ward for violating N.H. R. Prof. Conduct 1.1, 1.3, 1.15(b), 5.3 and 8.4(a). For all of the above reasons, the Professional Conduct Committee Reprimands Brien L.

matter. The Committee assesses all costs associated with the investigation and prosecution of this

further disciplinary action. In the event Mr. Ward falls to comply with any of the foregoing conditions, he will be subject to

with measures required to enforce the foregoing conditions. work as described herein, as well as expenses incurred by the Committee in connection • Mr. Ward shall be responsible for paying all expenses associated with the consultant's than one year following the Committee's final order. with the consultant's recommendations and N.H. Supreme Court Rule 50 for no less p. 16 #10-015

costs associated with the matter. December 11, 2013. It is also my understanding that Mr. Ward has paid all Ward has also allowed the ADO access to his accounting records until including filing monthly reconciliations for six months with the ADO. Mr. Mr. Ward and his staff have filed appropriate reports with the ADO

provide assistance with the process for complying with Rule 50. also retained Dennis R. Stone of Davidson & Stone, PLLC for a brief period to procedures that would comply with N.H. Supreme Court Rule 50. Mr. Ward recommendations for the implementation of accounting practices and Mr. Ward's office practices relating to the handling of client fund and to make New Business Directions, PO Box 2173, North Conway, NH 03860 to review In compliance with that order Mr. Ward retained Rhonda Rosand, CPA of

Professional Conduct Committee on December 11, 2012. completed the monitoring requirements listed in the order issued by the I am writing to inform the Committee that Brien L. Ward, Esq. has . Dear Ms. Fazzino:

Re: Ward, Brien L. advs. Donald Matthew-

Concord, New Hampshire 03301 4 Chenell Drive, Suite 102 Professional Conduct Committee New Hampshire Supreme Court Holly B. Fazzino, Administrator

Hand Delivered

Deputy General Counsel Assistant Disciplinary Counsel James L. Kruse www.nhattyreg.org Elizabeth M. Murphy 603-224-5828 + Fax 603-228-9511 General Counsel Concord, New Hampshire 03301 Disciplinary Counsel Janet F. DeVito 4 Chene II Drive, Suite 102 Sara S. Greene

Benjamin Siracusa Hillman, Esquire Rhonda Rosand, CPA cc: Brien L. Ward, Esquire

EMM/ges

file to now be closed. I am asking that the Committee give its approval for the above referenced

Page 2 December 19, 2013 Holly B. Fazzino, Administrator p. 18 File p. 17 Steven M. Gordon, Esquire Benjamin Siracusa Hillman, Esquire Rhonda Rosand, CPA Brien L. Ward, Esquire Elizabeth M. Murphy, Assistant Disciplinary Counsel Distribution:

February 18,2014

Upon consideration, the Committee voted to close the matter.

Chollet were absent. Richard D. Sager, Martha Van Oot and Mary Elizabeth Tenn. Peter G. Beeson and Susan R. Vice Chair, Elaine Holden, Vice Chair, Alan J. Cronheim, Richard H. Darling, Heather E. Krans, captioned matter. Members present included: David M. Rothstein, Chair, Benette Pizzimenti, On February 18,2014, the Professional Conduct Committee deliberated the above

Richard H. Darling* Holly B. Fazzino, Administrator Alan J. Cronhehn * non attorney member Susan R. Chollet* Peter G. Beeson Mary Elizabeth Tenn Elaine Holden,* Vice Chair 603-224-5828 • Fax 228-9511 Martha Van Oot Benette Pizzhnenti, Vice Chair Concord, New Hampshire 03301 Richard D. Sager David M. Rothstein, Chair 4 Chenell Drive, Suite I 02 Heather E. Krans