K. William Clauson (2013)

them regarding the handling and transfer of their files and make available to all

Clauson shall apprise his clients of their need to obtain other legal counsel, instruct

and inability to act as an attomey after the effective date of the suspension. Mr.

and (b). He shall notify all clients and opposing counsel in writing of his suspension

b. Mr. Clauson shall comply with all the provisions of Supreme Court Rule 37(13)(a)

Court Rule 37(13)(c).

Clauson shall not take on any new matters for new or existing clients. Supreme

a. Mr. Clauson shall cease all practice of law on or before the effective date. Mr.

actions: later. ("effective date"). In connection with the suspension Mr. Clauson shall take the following Reconsideration at such time that the Supreme Court issues a ruling on the Motion, whichever is This order shall take effect on August 9, 2013, or if Mr. Clauson files a Motion for

The sanction is based on a finding of a violation of Rules 1.7(a)(2) and Rule 8.4(a).

and 37(14) on the following tetms and conditions: Committee imposes the six month suspension consistent with Supreme Court Rules 37(13)(a-e) Matter of K William Clauson, LD-2013-0005. Having reviewed the Supreme Court order, the New Hampshire Supreme Court. The Court declined the appeal on June 27, 2013. See In the suspending K. William Clauson for a period of six months. Mr. Clauson appealed the order to the On December 11, 2012, the Professional Conduct Committee (the"PCC"), issued an order

Richard H. Darling* Holly B. Fazzino, Administrator Alan J. Cronheiro * non attorney member Thomas P. C01mair Lisa Welhnan-Ally Susan R Chollet* Martha Van Oot Toni M. Gray,* Vice Chair 603-224-5828 • Fax 228-9511 Richard D. Sager Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Heather E. Krans David M. Rothstein, Chair 4 Chen ell Drive, Suite I 02 Elaine Holden*

File K. William Clauson James L. Kruse, Deputy General Counsel Distribution:

July _j__, 2013 Benette Pizzimenti

further hearing before this Committee.

months of the effective date, pursuant to Supreme Court Rule 37(14)(f) without

Responsibility Examination, Mr. Clauson may apply for reinstatement following six

requirements, and satisfactorily completed the Multistate Professional

h. Provided that Mr. Clauson has timely complied with each of the above

this matter prior to reinstatement.

g. Mr. Clauson shall pay all costs associated with the investigation and prosecution of

name during the period of suspension.

including but not limited to signage, letterhead, and website shall not include his

e. Mr. Clauson shall comply with NH Rule Prof. Conduct 7.5. Any and all advertising,

order and he shall retain all documents as required as required in Rule 37(13)(e).

d. Mr. Clauson shall keep all records of the various steps taken in compliance with this

he shall serve the PCC with a copy of the affidavit.

37(13)(d) within thirty (30) days after the effective date of the suspension order, and

c. Mr. Clauson shall file with the Court an affidavit pursuant to Supreme Court Rule

calling attention to any urgency for obtaining the files or property.

clients the original file contents and other property to which they are entitled, p. 3 Page 1 of8

in the future. six month suspension. We have focused on protecting the public and preventing similar conduct involving a conflict of interest. However, the Committee voted to impose the same sanction of a changed since its prior decision. The Supreme Court found only one substantive violation memorandum on sanction. The Committee recognizes the extent of the rules violations has considered the entire record, the decision of the New Hampshire Supreme Court and each party's Following oral argument, the Committee deliberated this matter. The Committee

164 N.H. 173 (2012). and remanded the matter for reconsideration of the appropriate sanction. See, Clauson's Case, found that Mr. Clauson violated only Rules 1.7(a)(2) and 8.4(a) by clear and convincing evidence 8.4(a). The Court affirmed in part, reversed in part, vacated in part, and remanded. The Court findings that he violated New Hampshire Rules of Professional Conduct 1.1, 1.7(a), 1.9(a), and order of the Committee suspending him from the practice of law for six months based on The matter came before the Committee on remand from Mr. Clauson's appeal of the

Office ("ADO"), and K. William Clauson, appeared prose. James L. Kruse, Assistant Disciplinary Counsel appeared for the Attorney Discipline

recused and not present were Margaret H. Nelson, Chair, and David N. Cole. Lisa Wellman-Ally. Susan R. Chollet was recused and abstained from the vote. Members Alan J. Cronheim, Richard H. Darling, Elaine Holden, James R. Martin, Richard D. Sager, and Pizzimenti, Vice Chair and Chair for this matter, Toni M. Gray, Vice Chair, Thomas P. Connair, argument on sanction in the above referenced matter. Members present included Benette On December 11,2012, the Professional Conduct Committee ("Committee") heard oral

Clauson, K. William advs. Attorney Discipline Office # 09-038

Alan J. Cronheim Holly B. Fazzino, Administrator Thomas P. Conn air * non attorney member David N. Cole Lisa Welhnan-Ally Susan R. Chollet* Richard D. Sager Toni M. Gray,* Vice Chair 603-224-5828 • Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 0330 I Elaine Holden* Margaret H. Nelson, Chair 4 Chen ell Drive, Suite I 02 Richard H. Darling*

with a suspension as the appropriate sanction. proceedings, we are exactly where the Committee left off before it went to the Supreme Court, that in the absence of any track record of improvement since the last round of disciplinary alter Mr. Clauson's approach, understanding and attitude toward conflicts. The ADO concludes no assurances that requiring him to retake the MPRE and imposing another public censure would Professional Responsibility Exam ("MPRE") and passed with flying colors3• However, there are Clauson's approach to the issue. The ADO noted that Mr. Clauson had taken the Multi-state sanctions did not effectively deter Mr. Clauson's repeated misconduct or serve to moderate Mr. history, including a public censure in 2007 for similar misconduct. It is his position that the prior order based on the Supreme Court's decision. He emphasizes Mr. Clauson's prior disciplinary Assistant Disciplinary Counsel recommends that the Committee not alter its sanction

stating that justice and truth were served, and that no actual harm occurred in the end? Although he finally acknowledged that he violated Rule 1. 7( a)(2), he justified his conduct by representation of one of them would be materially limited by his responsibilities to the other. recognized that his representation of Mr. and Mrs. Gray presented a significant risk that his 1.7(a)(2), it was not until the conclusion of his presentation that Mr. Clauson belatedly date."1 Despite the decision of the New Hampshire Supreme Court that he violated Rule had already suffered. He asked the Committee to reduce his sanction to"that already imposed to sanction, Mr. Clauson did not focus on the sanction but argued that his practice and reputation When the case came before the Committee for reconsideration of the appropriate

or more clients will be materially limited by the lawyer's responsibility to amther client. .." requires an attorney to consider whether there is a"significant risk that the representation of one "potential" for a conflict, as articulated by Judge Cirone, is embodied in Rule 1.7(a)(2) which the case, Mr. Clauson turned a deaf ear to the Court's concerns. He failed to recognize that a This was the first red flag that Mr. Clauson chose to ignore. Rather than withdraw from

Record Tab 16, Transcript ofBail Modification Hearing 6/30/09, p.l1, at 11-13. conflict between counsel for the defendant and counsel for the victim being the same person?" expressed his concerns as follows:"Well, does anybody else here besides me see a potential also arraigned and entered a not guilty plea through his counsel, Mr. Clauson. Judge Cirone represented both Grays on the request that a no-contact bail condition be lifted. Mr. Gray was bail hearing before Judge Albert J. Cirone, Jr., in the Lebanon District Col!rt, Mr. Clauson domestic simple assault case, and her husband, Todd Gray, the defendant, in the same case. At a interest arose when Mr. Clauson undertook to represent both Brenda Gray, the alleged victim in a summarize the facts to give the background for the sanction analysis. A concurrent conflict of The Supreme Court decision provides the underlying facts of the case. We briefly

PROCEDURAL BACKGROUND p. 5 Page 3 of8

and that there was no conflict. Mr. Clauson failed to recognize that direct adverseness is not the alleged assault on Mrs. Gray, the finding was reversed by the New Hampshire Supreme Court Mr. Clauson argued that although there was a finding of a conflict in this case, involving.

client or a third person or by a personal interest of the lawyer. (Emphasis added). will be materially limited by the lawyer's responsibilities to another client, a former

(2) there is a significant risk that the representation of one or more clients (1) the representation of one client will be directly adverse to another client; or

exists if: representation involves a concurrent conflict of interest. A concurrent conflict of interest (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

follows: concurrent conflict of interest charge under Rule 1. 7 (a), which provides in pertinent part as Although the number of charges has been reduced, the most serious charge remains a

ld existence of any aggravating or mitigating factors and whether they affect the baseline sanction. (2007)); Standards § 3.0. Once the baseline sanction is determined, the Court then looks to the existence of aggravating or mitigating factors." Jd. (quoting Douglas' Case, 155 N.H. 613,621 mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the analysis for courts to consider in imposing sanctions:"(a) the duty violated; (b) the lawyer's adopted them. Conner's Case, 158 N.H. 299, 303 (2009). The Standards set forth a four part Lawyer Sanctions (2005) ("Standards") for guidance, although the Court has not formally The Supreme Court will look to the American Bar Association's Standards for Imposing

N.H. 503, 513 (2005). (201 0). The sanction must take into account the severity of the misconduct. Coffey's Case, 152 on its own facts and circumstances in deciding the sanction." Morse's Case, 160 N.H. 538 legal profession, and preventing similar conduct in the future. The Court will"consider the case on protecting the public, maintaining public confidence in the bar, preserving the integrity of the When determining the sanction, the Court will focus not on punishing the offender, but

Committee to reconsider the appropriate sanction in light of its findings. the Committee recognized the extent of the violations. The Supreme Court has asked the violations, the Supreme Court was not confident that the sanction would have been the same, had findings made on Rule 1.1 and 1.9(a). Based on the conclusion that there were only two Conflict oflnterest and 8.4(a) Misconduct, by clear and convincing evidence. There were no The Supreme Court limited its holdings to violations to Rule 1.7(a)(2) Concurrent

SANCTION ANALYSIS p. 6 Page4 of8 clients of candid advice and placed each at risk of harm due to his conflicted loyalties. For of the legal profession." Wyatt's Case, !59 N.H. 285,306 (2009). Mr. Clauson deprived his Mr. Clauson's conduct in violation of Rule 1.7 represents a breach of the"bedrock duty

domestic disputes. harm should have been palpable to Mr. Clauson in the highly charged circumstances involved in the misconduct which would probably result from the lawyer's misconduct. The potential for misconduct. Potential injury involves the same harm that is reasonably foreseeable at the time of misconduct. Injury is defined as harm to a client, the public or the profession from a lawyer's The third prong of the analysis addresses the injury or potential injury associated with the

knowing violation as contemplated under the Standards. interests and his rejection of the Comt's admonition about the apparent conflict evinced a disinclination to evaluate or even consider the risks critical to an assessment of his client's knew or should have known of the conflict. Wyatt's Case, !59 N.H. 285,306. (2009). His bail/arraigmnent hearing in the Lebanon District Court. We have concluded that Mr. Clauson alleged victim even after the Court expressed a concern about a risk of a conflict at the exhibited an indifference to the risks associated with representing both the defendant and the evident to Mr. Clauson, especially in the context of a domestic violence assault case. He As to the second prong of mental state element, the risk of a conflict should have been

elements in the lawyer's relationship to a client." Clauson's Case 164 N.H. 183, 189 (2012). lawyer's range of options in advising a client. Loyalty and independent judgment are essential from a concurrent conflict of interest under Rule 1.7(a)(2): divided loyalties that might inhibit the The Supreme Comt recognized that the circumstances of this case show"the primary risk arising candid and independent advice and placed each at risk of harm due to his conflicted loyalties. of the analysis, Mr. Clauson breached his duty ofloyalty to his clients. He deprived his clients of We now proceed to the analysis using the Standards as guidelines. Under the first prong

that reasonably should be pursued on behalf of a client. professional judgment in considering alternatives or foreclose courses of action does, whether it will materially interfere with the lawyer's independent questions are the likelihood that a difference in interests will eventuate and, if it of subsequent harm does not itself require disclosure and consent. The critical alternatives that would otherwise be available to the client. The mere possibility the lawyer's other responsibilities or interests .... The conflict in effect forecloses appropriate course of action for the client will be materially limited as a result of significant risk that a lawyer's ability to consider, recommend or carry out an Even where there is no direct adverseness, a conflict of interest exists if there is a

his clients: Comment 8 to the ABA Model Rules explains amplifies the duty Mr. Clauson owed to

required in order to violate Rule 1.7(a)(2). p. 7 Page 5 of8

whether the representation will adversely affect another client, and client may be materially affected by the lawyer's own interests, or lawyer is negligent in detetmining whether the representation of a 4.33 Reprimand [public censure] is generally appropriate when a injury to a client. possible effect of that conflict, and causes injury or potential conflict of interest and does not fully disclose to a client the 4.32 Suspension is generally appropriate when a lawyer knows of a another, and causes serious or potentially serious injury to a client. representation of a client with the intent to benefit the lawyer or adverse, and knowingly uses information relating to the which the interests of a present or former client are materially (c) represents a client in a matter substantially related to a matter in serious or potentially serious injury to a client; or interests with the intent to benefit the lawyer or another, and causes (b) simultaneously represents clients that the lawyer knows have adverse the client; or lawyer or another, and causes serious or potentially serious injury to interests are adverse to the client's with the intent to benefit the (a) engages in representation of a client knowing that the lawyer's consent of client(s): 4.31 Disbarment is generally appropriate when a lawyer, without the informed

part, as follows: Standard§ 4.3, entitled"Failure to Avoid Conflicts oflnterest," provides, in pertinent

We have determined that the applicable Standard is § 4.3 as set forth below:

issue. profession when a lawyer ignores a conflict issue even after a judge draws his attention to the 16. Thus he overlooks not only the potential injury to his clients' but injury to the legal did something wrong, but nobody was hmt by that, and I was honest about it." Tr. p. 30, 1. 12entire situation from the beginning through its conclusion, justice and truth were served."Yes, I Mr. Clauson argues that the ends justify the means. He claims that when you review the

to the police. using privileged information and exposing Mrs. Gray to charges relating to her prior statements examining Mrs. Gray as a witness for the State. In doing so, Mr. Clauson would run the risk of interests, Mr. Clauson's futther efforts on behalf of Mr. Gray were likely to involve cross­ trial." Unless he was inclined to compromise Mr. Gray's defense in order to protect Mrs. Gray's advance of meeting with the prosecutor that"anything you say ... can be used against Todd at Court proceeding and that his"primary loyalty in the case" was to her, warned Mrs. Gray in example, Mr. Clauson, who claimed that Mrs. Gray was his client"throughout" the District p. 8 Page 6 of8 I. 15-18. 4 Tr. 12/11/12, p. 22,

an issue.4 Court's decision five or six times before he understood that"the risk" of a potential conflict was insisted there was no conflict because he acted in good faith and claimed he had to read the of a conflict and attributed Judge Cirone's concern in this regard to alleged personal bias. He conflicts existed at all stages of Mr. Clauson's involvement. Mr. Clauson persisted in his denial of Mr. Clauson's representation or ethical responsibilities. Moreover, the actual or potential conespondence to the State, and response to the referral support no such limitations in the scope charges until after obtaining the discovery. Mr. Clauson's actions, pleadings, court appearances, discovery, and that he did not undettake to represent Mr. Gray in defending the pending criminal was limited to resolving the bail condition issue, that he was then engaged only to conduct minimize his involvement as counsel. Mr. Clauson asserts that his initial involvement in the case Mr. Clauson's refusal to acknowledge enors in this case is reflected in his efforts to

wrongful nature of his conduct. See Standard § 9 .22. misconduct, substantial experience in the practice of law and his refusal to acknowledge the Aggravating factors include Mr. Clauson's prior disciplinary record, a pattern of

or selfish motive. See Standard§ 9.32. alternative to other counsel" for either Mr. or Mrs. Gray as reflecting the absence of a dishonest unless the Committee considered Mr. Clauson's misguided agreement to serve as the"cheaper factors. E.g., Conner's Case, 158 N.H. at 303. There are no mitigating factors in this case, The baseline sanction must be considered. in light of any aggravating and mitigating

we consider the aggravating factors, especially Mr. Clauson's prior record. is no difference in the outcome in this case whether 4.32 or 4.33 is applied as the baseline when contemplated under Standard,§ 4.32. Wyatt's Case, !59 N.H. 285,306 (2009). However, there rejection of the Court's admonition about the apparent conflict, evinced a knowing violation, as respective interests and potential risks associated with concurrent representation as well as his of public censure. Mr. Clauson's disinclination to make a critical assessment of his clients' negligent throughout his involvement, Standards § 4.33 would contemplate a baseline sanction representing both Mr. and Mrs. Gray may have been the product of negligence. If merely Mr. Clauson's initial failure to recognize the potential conflict of interest associated with

potential iJ1iury to a client. adversely affect another client, and causes little or no actual or by the lawyer's own interests, or whether the representation will whether the representation of a client may be materially affected engages in an isolated instance of negligence in determining 4:34 Admonition [reprimand] is generally appropriate when a lawyer causes iJ1iury or potential injury to a client. p. 9 Page 7 of8

significant prior disciplinary record spanning three decades, and has exhibited a persistent pattern in the record of his good character and reputation." Unlike Mr. Shillen, Mr. Clauson has a dishonest or selfish motive, he has no prior disciplinary record, and there is substantial evidence interest and potential consequences to his client, there is no evidence that he acted with a respondent's years ofexperience practicing law, he should have recognized the conflict of the aggravating and mitigating factors. The Court found that it was clear"that given the Shill en's Case, 149 N.H. 132, 140 (2003). After finding the rules violation, the Court reviewed that an attorney's misconduct involving a violation of Rule I. 7( a) warranted a Public Censure. Mr. Clauson's case is substantially different from Shill en's Case where the Court found

the Superior Court. pmsuit of the doctor's claims against his former client for several months until disqualified by took the position that he did not recall ever representing the practice. Mr. Clauson continued in Significantly, when the issue of conflict was raised by the practice's new counsel, Mr. Clauson Mr. Clauson did not research his records to determine if there was a conflict of interest. approximately 15 years. When he agreed to represent the doctor in his dispute with the practice, doctor. Mr. Clauson and his firm remained involved as counsel to the medical practice for Clauson formerly represented the practice in establishing the contractual relationship with the represented a doctor in a contractual dispute with a medical practice in Lebanon, N.H. Mr. Committee's Reissued Public Censure with Conditions, dated October 29, 2007. Mr. Clauson analysis in this matter. A detailed outline of the evidence is included in the Professional Conduct Mr. Clauson's approach to the conflict issue in the 2007 case are relevant to the sanction

condition he promptly satisfied. take and pass the Multi-state Professional Responsibility Exam ("MPRE"), a William advs. Attorney Discipline Office #03-099. Mr. Clauson was required to o Public Censure with conditions in 2007 for violating Rule 1.9(a). Clauson, K.

of his position. Clauson, K. William advs. PCC and Richard Balagur #02-092. o Warning in 2005 to exercise care in accurately characterizing evidence in support

of Rule 1.9(a). Clauson, K. William advs. Ronald Sears #94-010. o Reprimand in 1996 for representing parties under a conflict of interest in violation

violation of Rule 8.4( c). Clauson, K. William advs. Robert Summer #863641. o Reprimand in 1987 for deceit, misrepresentation, and threatening a complainant in

advs. Joseph Cicotte #793198. (illegal conduct or conduct contrary to disciplinary rule). Clauson, K. William were unauthorized or contrary to law, in violation of Canon 7 and DR 7-102 o Reprimand in 1981 for use of persons to perform duties on behalf of a client that

The record is srnnmarized as follows: p. 10 Page 8 of8 File K. William Clauson, Esquire James L. Kruse, Assistant Disciplinary Counsel Distribution:

matter. Mr. Clauson is assessed all costs associated with the investigation and prosecution of this

applicable rule. Motion for Reinstatement with the Court after November 1, 2013 if he is in compliance with the Supreme Court Rule 37(13)(a-e). In accordance with Rule 37(14)(t), Mr. Clauson may file a effective May I, 2013. Mr. Clauson shall comply will the provisions of the provision of N.H. 8.4 (a) the Committee imposes a six month suspension. Mr. Clauson's suspension shall be Upon reconsideration of the sanction based on the finding of a 1.7(a)(2) violation and

sides of the same issue. MR. CLAUSON: No. There's two things. One, I wasn't representing two

issue. was concemed about the fact that you were representing two sides of the same MR. DARLING: That's not my question. My question is, the judge obviously

Cirone indicated that he would like to ask questions himself ... MR. CLAUSON: No. I mean, when the judge raised his eyebrows, J\1dge

question whether you were really doing the right thing or not? up the question of the conflict not cause your heart to beat a little faster and MR. DARLING: Did the fact that the judge raised his eyebrows and brought

at Oral Argument and exemplifies our concems: Committee members, both lawyers and non-lawyer members. TI1e following exchange OCCUlTed Our decision on remand is based on an analysis as set forth above with input from

protecting the public and maintaining public confidence in the bar. suspension is the appropriate sanction. Our focus has not been on punishing Mr. Clauson, but on These aggravating factors, combined with the baseline sanction, make clear that

protected the public. of misconduct. Prior sanctions have not effectively deterred his repeated misconduct and p. 11 J!

File James L. Kruse, Esq. Elizabeth M. Murphy, Esq. K. William Clauson, Esq. Professional Conduct Committee, 09-038 Distribution:

Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.

The motion for summary affirmance is, therefore, moot.

accepted, this case would have been accepted and scheduled for briefing. any justice who reviewed this case believed the appeal should have been This matter was considered by each justice whose name appears below. If

court with at least three justices participating. committee. No appeal, however, is declined except by unanimous vote of the discretion to decline an appeal from a decision of the professional conduct Under Supreme Court Rules 10 and 37(16), the supreme court has

See Rule 10(1). Appeal from a decision of the professional conduct committee is declined.

Clauson, the court on June 27, 2013, issued the following order: In Case No. LD-2013-0005, In the Matter of K. William