Richard N. Foley (2013)

admitted to the Massachusetts Bar on December 13, 1988. 2. Mr. Foley has alsobeen admittedtopracticelaw inMassachusetts.He was

Portsmouth,New Hampshire. proceeding,Mr. Foley has maintaineda lawofficeat 55Market Street, New Hampshire Bar onOctober31,1994. At alltimesmaterialto this 1. Richard N. Foley, Esq., is a NewHampshire attorneywho was admittedto the

clearand convincing evidence:

The ProfessionalConduct Committee voted to accept theStipulationas to the Facts, by

The Committee makes factual findings and rulings asdetailedbelow:

Assented-To Motion toPermit Waiver ofFormal Proceedings.

Permit WaiverofFormal Proceedingsand for Final Ruling. TheCommittee voted to grant the

Van Oot andThomas P. Connair were absent. The partiessubmittedan Assented-To Motion to

H. Darling,ElaineHolden, Heather E. Krans,RichardD. Sager,Mary ElizabethTenn. Martha

Pizzimenti,Vice Chair,Toni M. Gray, Vice Chair,Susan R. Chollet,Alan J.Cronheim, Richard

captionedmatter.The followingmembers were present:David M. Rothstein,Chair,Benette

On August 20,2013, theProfessionalConduct Committee deliberatedtheabove-

Richard H. Darling Holly B. Fazzino,Administrator Alan J.Cronheim * non attorneymember Thomas P. Connair Mary ElizabethTenn Susan R. Chollet* Martha Van Oot Toni M. Gray,* ViceChair 603-224-5828 ♦ Fax 228-9511 RichardD. Sager BenettePizzimenti,Vice Chair Concord,New Hampshire 03301 HeatherE. Krans David M. Rothstein,Chair 4 Chenell Drive, Suite 102 Elaine Holden*

the maritalestate. any replenishmentofthe retainer would come from thereleaseofjointfunds from 10. Ms. Sawyer had very littlefunds ofher own, and otherthan the initialretainer,

such time as theCourt authorizedthereleaseofjointfunds in themaritalestate. representMs. Sawyer for $200 per hour. He alsorequesteda retainer,payableat representationin thedomesticrelationsmatter.Mr. Foley orallyagreedto 9. Mr. Foley had no written feeagreementwith Ms.Sawyer regardinghis

($2,500)fee basis. Hedepositedthat fee into hisOcean Bank account. 8. Mr. Foley representedMs. Sawyer in thecriminalassaultcase on a flat

confrontationwith Mr. Sawyer. defended Ms. Sawyer in June 2009 in anassaultchargearisingout ofa 7. Priorto hisappearancein thesubjectdomesticrelationsmatter,Mr. Foley

Supreme Court. The appealwas dismissedon August 12,2010. which Ms. Sawyer, throughMr. Foley,filed anappealwith theNew Hampshire on July6,2009. A Decree ofDivorce was issuedon May 21,2010, following relationsproceedinginPortsmouthFamily Divisionwas initiatedby Mr. Sawyer 6. Ms. Sawyer was marriedtoPatrickSawyer on December 1,2007. The domestic

he depositedfundsrelatingto Ms.Sawyer'srepresentation. least one atNortheastCreditUnion (accountnumber ending in6051),intowhich account.Mr. Foley alsomaintainedvariouspersonalbank accounts,includingat appearsto be apersonalaccountbut has beenutilizedas a law firmoperating account atTD Bank. He alsomaintained an account atOcean Bank which 5. At all timesrelevantto this matter, Mr.Foley had inplacean IOLTA clienttrust

Division(Case No. 670-2009-DM-00246). as hercounselin adomesticrelationsmatterpending inPortsmouth Family Foley violatedtheNew Hampshire Rules ofProfessionalConduct while serving correspondenceinOctober2010 and in May2011. Ms. Sawyer claimedthat Mr. Office(ADO) by letterofOctober 8,2010, followedby additional 4. The Complainant,Robin Sawyer, filed acomplaintwith theAttorneyDiscipline

flat fees. Mr.Foley was notaccustomed tobillingfor his time. was almostexclusivelydevotedtocriminaldefensemattersinwhich he accepted 3. Mr. Foley'spracticeat the timeoftheeventsgivingrise to thisdisciplinarymatter p. 3 Page 3 of18

CPA. That reportishereby incorporatedby referenceand attachedas Ex. A. containedin theAudit Report datedDecember 14,2012 and preparedby CraigCalaman, 1 The information regarding specific bank accounts and withdrawals and deposits therefrom is

distributionintendedfor Ms. Sawyer, Mr. Foleyretained$5,000 for legal fees. 20. Mr. Foley distributedMr. Sawyer's $10,000 shareto him, butout ofthe$10,000

oftheparties'funds($66,811.18),except$20,000, weredepositedtherein. 19. The escrow accountwas establishedby Mr. Foley on September 24,2009, and all

"touse tomaintainthemselvespending a furtherOrder ofthisCourt." (the"escrow account").Each party was toreceivean equalshareofthe$20,000 interest-bearingescrow accountset up by Mr.Foley atNortheastCreditUnion Sawyers'jointlyheldfunds as ofJuly16,2009, less$20,000,be placedin an 18. In itsTemporary Decree ofSeptember 15,2009, the Court orderedthatallofthe

$2,500 from Ms.Sawyer'sJuly 22, 2009 check. $1,560 in fees. Therefore, $940 was unearned at the time he paidhimselfthe full 17. According to hisSummary ofActivity,Mr. Foley had, asofJuly22,2009, earned

representationofMs. Sawyer as oftheJuly22,2009 payment. 16. Mr. Foley had no contemporaneous time and billingrecordsassociatedwith his

Foley'sclienttrustaccount. 15. Though his feeswere not yetearned,neithercheck was depositedinto Mr.

account atNortheastCreditUnion. datedJuly 22,2009, which Mr. Foley successfullycashed through hispersonal 14. Ms. Sawyer replacedthe returnedcheck with anotherone inthe same amount,

accountatOcean Bank,but itwas returnedfor "notsufficientfunds."1 Foley in theamount of$2,500. Mr. Foleydepositedthecheck in hisoperating 13. On July 13,2009, Ms. Sawyer tendereda retainercheck made payableto Mr.

"Summary ofActivity"). faithreconstructionoftime spent on hermatteras a finalaccounting(hereinafter at theconclusionoftherepresentation,inJuly2010, he providedher with a good provideMs. Sawyer with any accountingofhistime spenton hermatter.Rather, matter.At no pointduringthependency ofthedivorceproceedingsdid Mr.Foley 12. Mr. Foley did not keep contemporaneous recordsoftime spenton Ms. Sawyer's

connectionwith thedomestic relationsmatter. ofretainerrequired,or how any exhaustedretainerwould be replenishedin 11. Mr. Foley had no discussionwith Ms. Sawyer about periodicbilling,theamount p. 4 Page 4 of18

hismotion. of$2,300, and thus the retainer was not"exhausted"asrepresentedto the Court in Motion forReleaseofFunds,Mr. Foley was inpossessionofan unearned balance 30. According to hisSummary ofActivity,as ofOctober 30,2009, when he filed the

Ms. Sawyer as ofOctober 30, 2009. 29. Mr. Foley had notime and billingrecordsassociatedwith hisrepresentationof

untiltheDecember 8,2009, pretrialconference. throughcounsel,objectedto themotion. The Court deferredrulingon themotion additional$7,500 from theescrow accountfor his legal fees. Mr.Sawyer, 28. In his Motion forReleaseofFunds, Mr.Foley requestedleaveto disbursean

NH Supreme Court." and furtherfunds arenecessarytoprotectherrightsboth beforethisCourt and the "[t]heinitialretainerprovidedby Robin Sawyer to theundersignedisexhausted an appealofa restrainingorderissuedearlierin the case.According to Mr.Foley, requiredtodefend Ms. Sawyer's interestsin thedomestic relationscase,including Ms. Sawyer. Mr. Foley representedto theCourt thatadditionalfunds were 27. On October 30,2009, Mr. Foley filed aMotion forReleaseofFunds on behalfof

Ms. Sawyer as ofSeptember 2009. 26. Mr. Foley had no time and billing recordsassociatedwith hisrepresentationof

from her $10,000 distributionas aretainerforfees. 25. Ms. Sawyer does not recall ever being told that Mr.Foley would remove $5,000

be splitevenly between Mr. and Mrs.Sawyer). by the Court (e.g., theCourt'sSeptember15,2009 Orderauthorizingthat $20,000 he wouldreplenishhis retainer from funds as they wereauthorizedto bereleased 24. Mr. Foley recallsthat at the time Ms.Sawyer retainedhim, heinformed her that

distributionto thepartiesfor legal fees. 23. The Court'sTemporary Decree includedno referenceto useofany portionofthe

theSawyer matteruntilDecember 8, 2009, when it was fully earned. $5,000,$4,420 was unearned,and Mr.Foley remained out oftrustwith respectto owed $580. Because he had earned only thisamount at the time he paidhimself 22. Based on Mr. Foley'ssummary ofactivity,as ofSeptember 24,2009, he was

recordofhishandlingofsuch funds. 21. Mr. Foley did notdepositthe $5,000 into hisclienttrustaccount.There is no p. 5 Page 5 of18

funds. chargeassessedby the bank for a certified copyofthe Court Orderauthorizingreleaseof 2 Mr. Foleyactuallydisbursed$4,994.00to Mr. Sawyer. Mr.Foley retaineda $6.00service

to hisclienttrustaccount atTD Bank. 39. Around July 8,2010,Mr. Foleytransferred$51,175.90from theescrow account

to Ms. Sawyer. 38. The Court orderedthat$16,860.88be disbursedto PatrickSawyer and $34,273.02

Court. accruedinterestthat Mr.Foley neglectedtoincludein hissubmissionto the but in factthe totalbalancewas $51,175.90,an amount which included$42 of account. The orderliststhe finalbalance intheescrow account as $51,133.90, 37. In a final orderissuedJuly 6,2010,theCourt releasedthebalanceofthe escrow

During thistime theremainingbalanceofMs. Sawyer's retainerwas exhausted. That decreewas amended on May 26,2010, toserveas aDecree ofDivorce. disposingofthefinancialissuesthat hadbeen thefocusoftheparties'litigation. which theCourt issueditsDecree ofLegal Separation,datedMay 18,2010, 36. Mr. Foley representedMs. Sawyer duringthedomestic relationstrial,following

account forMs. Sawyer. Activity)was owed $3,380,leavinga retainerbalanceof$1,620 in hisclienttrust accountin hisclienttrustaccount,Mr. Foley (accordingto hisSummary of 35. As ofJanuary27, 2010, when heretained$5,000 distributedfrom theescrow

2010 and he did not seek Ms.Sawyer'sauthorizationtoretainthe $5,000. 34. Mr. Foley had no time and billing recordsofhishours and fees asofJanuary27,

$5,000 earmarked for Ms.Sawyer in hisclienttrustaccountas a fee. 33. Mr. Foley did not distributeany money to hisclient.Mr. Foley retainedthe

disbursingMr. Sawyer'sshareonJanuary27,2010.2 and depositedthe entireamount into his client trust(IOLTA) accountbefore 32. On January19,2010, Mr. Foley withdrew the$10,000 from theescrow account

additionaldisbursementfrom theescrow accountof$5,000 toeach party. stipulationfiledby theparties,theCourt authorized,on January 11,2010, an 31. Following a pretrialconferenceconvened on December 8,2009, and pursuantto a p. 6 Page 6 of18

Foley inDecember 2010. Mr. Foley did not inform Ms.Sawyer ofthisrefund. costswas $900 to the CPA firm ofDinowitz & Bove, ofwhich $519 was refunded to Mr. This amount does not includevariousfiling fees andcoststhattotaled$1,330.40.One ofthe amount representspartor allofa bank fee. This amount is$2.50 lessthan what theCourt had ordered.Upon informationand belief,this

forreturnto the client. notearned at theconclusionoftherepresentationand should have been available Summary ofActivity).Therefore,there was abalanceof$7,749.00which was $17,720.00were representedto theclientas earned(perMr. Foley'sJuly2010 representationwas $25,469.00.4Ofthatamount,legalfeesintheamountof 47. The totalamount oftheretainersreceivedby Mr. Foley over thecourse of

representationofMs. Sawyer. contemporaneously-createdtime andbillingrecordspertainingto his 46. At thetime ofthisfinaldisbursementfrom theescrow account,Mr. Foley had no

irrespectiveoffunds that Mr.Foley may have been holdingforotherclients. $12,020.39.This amount is lessthanwhat shouldhave been heldfor Ms.Sawyer, 45. Deducting$20,442.12from the ending balance results in a net balanceof

had not yetcleared). 31,2010, was $32,461.51(this wasbecausethe$20,442.12 check to Ms.Sawyer statementshows thatMr. Foley'sclienttrustaccount'sending balance,as ofJuly Sawyer afterthisdisbursementshould have been $13,875.40. However, thebank 44. The balance on hand intheclienttrustaccount from the escrow account forMs.

matter,as a finalaccountingofsorts. "activity,"inwhich he (forthe first time)re-createdestimatedtime spenton her 43. When Mr. Foley mailed Ms. Sawyer thecheck,he alsoincludedthesummary of

thedivorcedecree.Ms. Sawyer expresseda desiretoappeal. and work duringtrial. He recalls that he and Ms.Sawyer spoke aboutappealing 42. When he retainedthisamount, Mr. Foley wasowed fees for his trialpreparation

his legal fees. trustaccountfor$20,442.12,retaining the$13,830.90balanceofher award for Instead,on July29,2010, Mr. Foley wrote a check to Ms.Sawyer from hisclient 41. Mr. Foley did notdisbursetheamount orderedby theCourt to Ms.Sawyer.

$16,858.38.3 accountpursuantto theCourt'sorder. Theamount disbursedto Mr.Sawyer was 40. On July10,2010, Mr. Foley disbursedfunds to Mr.Sawyer from theescrow p. 7 Page 7 of18 reconciliationsforeach clientwho had funds in aNew Hampshire trustaccount periods(coveringJune 1, 2007 to May31,2012),he performedmonthly Certificates (Certificates)certifyingthat, in eachoftheapplicablereporting 2012, Mr. Foley signed(and later filed)Annual TrustAccounting Compliance 57. In September 2008,September 2009, August2010,November 2011,and July

(d). See Sup. Ct. R. 50. ofthereconciliationdate; and (e) a detailed listingofdifferencesbetween (b) and differencesbetween (a) and (b); (d) alistingofallclients'funds in theaccountas theaccountaccordingto Mr.Foley'slaw firmrecords;(c) adetailedlistingof (a) thebalanceoftheaccountaccordingto thebank'srecords;(b) thebalanceof notperform monthly reconciliationsofany ofhisclienttrustaccountstodisclose: 56. For the reportingperiodsofJune 1, 2007throughMay 31,2012, Mr. Foley did

to Ms.Sawyer inJune of2011. contemporaneously trackhis timespenton hermatter,Mr. Foley refunded$5,000 55. Recognizingthat Ms.Sawyer was due arefund,and regrettinghis failure to

was $1,514.15. 54. The ending balancein hisclienttrustaccountas ofDecember 31,2010 account

shouldhave had abalanceofat least$3,268.00on hand for Ms.Sawyer. 53. Deducting the$5,000 flat fee for theappeal,Mr. Foley'sclienttrustaccount

theappeal. thePortsmouth Family Division'sdispositionofthemaritalcaseand dismissing 52. The New Hampshire Supreme Court issuedan orderon May 25, 2011, affirming

Court. 51. Ms. Sawyer hirednew counsel,who filed theReply BriefbeforetheSupreme

December 31, 2010. 50. Mr. Foley filed the NoticeofAppeal in July2010 and hisbriefon

communicated to Ms.Sawyer the actualamount ofthe flat fee. fees for theappealwould be a flat fee and nothours-based,he never $5,000 tocoverhis work on the appeal.Although Mr. Foley told Ms.Sawyer his 49. According to Mr.Foley'ssummary ofactivity,he anticipatedadditionalfeesof

Sawyer agreedto go forward with an appeal. 48. Mr. Foley and Ms. Sawyer discussedappealingthe familycourt'sdecision. Ms. p. 8 Page 8 of18

ofsuch funds to her; belongedto Ms.Sawyer without promptlynotifyingMs. Sawyer and tenderingall b. receivingfunds from Court-authorizeddistributionsfrom the escrow account that

payments and maintaininga retaineraccount; which he agreedto serve as hercounsel,includingrequirementsformaking a. failingtodiscusswith Ms. Sawyer insufficientdetailthefinancialterms under

63. Mr. Foley breachedthatduty by:

requirementsforpayment. atvarioustimes,theaccumulatedand anticipatedcostsofrepresentation,and the manner inwhich Mr. Foley was representingher interests,thestatusofthematter 62. Mr. Foley owed Ms. Sawyer a duty to keepher reasonablyinformed about the

followingviolationsoftheRules ofProfessionalConduct, by clearand convincingevidence:

The ProfessionalConduct Committee voted to acceptthe Stipulationas tothe

clienttrustaccounts inaccordance with Rule 50 and Rule 1.15. reportingperiodsfalselycertifiedthatMr. Foley had maintainedand recordedhis 61. The Certificatesfiledby Mr. Foley inregardtoeach oftheaforementioned

and closedon July 8,2010. May 31,2011. The NECU escrow accountwas opened on September 24, 2009 covering(1)June 1,2009 throughMay 31, 2010 and (2)June 1,2010 through account"in hisAnnual TrustAccounting Compliance Certificatesfor theperiods 60. Mr. Foley failedto listtheNECU escrow account as a"New Hampshire trust

with Rule 50 duringany oftheaforementionedreportingperiods. 59. Mr. Foley didnot maintainand recordhisclienttrustaccount(s)inaccordance

2010-2011 reportingperiod. was not"outoftrust."Mr. Foley leftblankthecertificationinthatregardfor the 58. Mr. Foley alsocertifiedthat in all but oneoftheapplicablereportingperiods,he

with Rule 50 and Rule 1.15. Rule 50(2)F,and thatallclientfunds wereheldinaccountsin fullcompliance maintainedby Mr. Foley,inaccordancewith New Hampshire Supreme Court p. 9 Page 9 of18

Court Rule 50. violationofRulesofProfessionalConduct 1.15(a),(b), (d), and (f) andSupreme 66. Under theforegoingcircumstances,there isclearand convincingevidenceofa

ofsuch funds to her. belonged to Ms. Sawyer without promptly notifying Ms. Sawyer andtenderingall d. receivingfunds from Court-authorizeddistributionsfrom theescrow accountthat

earnedthe fees orincurredtheexpenses;and c. withdrawing fees andexpensespaid inadvance by Ms. Sawyer beforeMr. Foley

reconciliationsrelativeto funds for Ms.Sawyer; accountfor fundsbelongingto Ms.Sawyer and toperform monthly Ms. Sawyer's funds inaccordancewith Supreme Court Rules,includingfailingto b. failing tomaintainrecordsofthe handling,maintenance,and dispositionofallof

a. co-minglingfunds belongingto Ms.Sawyer with Mr. Foley'sproperty;

65. Mr. Foley breachedthesedutiesby:

such funds to her. d. promptlynotify Ms. Sawyer upon receiptoffundsbelongingto her and todeliver

incurred;and Ms. Sawyer, to bewithdrawn by Mr.Foley only as feeswere earnedor expenses c. depositinto theclienttrustaccountlegal fees andexpenses paid inadvance by

Sawyer's funds inaccordancewith Supreme Court Rules; b. maintainrecordsofthe handling,maintenance,and dispositionofallofMs.

Foley's propertyand maintainedinaccordance with Supreme Court Rules; a. depositand hold Ms. Sawyer's funds in aclienttrustaccountseparatefrom Mr.

64. Mr. Foley owed Ms. Sawyer a duty to:

appeal. d. failingto communicate a specificamount for the flat fee hecharged forthe

from theescrow account for legal fees;and c. failingtoobtainMs. Sawyer's authorityto take all orportionsofdistributions p. 10 Page 10 of18

ultimatesanction").In the caseofmultiple chargesofmisconduct,the ABA recommends that

thesanction,[the Court]considers]the effectofany aggravatingor mitigatingfactorson the

factors and whether they affect the baseline sanction. See id. (stating that"[a]fterdetermining

looks to the fourth and final partofthe analysis: theexistenceofany aggravatingor mitigating

identifytheappropriatesanction").Once thebaselinesanctionisdetermined,theCourt then

that"[i]napplying these factors, the first step is tocategorizetherespondent'smisconductand

misconductand determininga baselinesanction. See Conner's Case, 158 N.H. at 303(stating

The first three partsofthe analysis create theframework forcharacterizingthe

mitigatingfactors." Id. (quoting Douglas' Case, 156 N.H. 613, 621(2007)); Standards § 3.0.

actual injury caused by thelawyer'smisconduct; and (d) theexistenceofaggravatingor

imposing sanctions:"(a)the dutyviolated;(b) thelawyer'smental state;(c) thepotentialor

Case, 158 N.H. at 303.The Standards set forth a fourpartanalysisforcourtsto considerin

Imposing Lawyer Sanctions (2005) ("Standards"), it looks tothem forguidance. Conner's

(2005).Althoughthe Court has not adopted the American Bar Association'sStandardsfor

must take intoaccounttheseverityofthemisconduct." Coffey'sCase, 152 N.H. 503,513

similarconductin thefuture." Conner's Case, 158 N.H. 299, 303(2009). "The sanction...

publicconfidencein the bar,preservingtheintegrityofthelegalprofession,and preventing

The purposeoftheCourt'sdisciplinarypower is"protectingthepublic,maintaining

Foley'sconductviolatedRule ofProfessionalConduct 8.4(a).

Having found theforegoingviolations, there is clear andconvincingevidencethat Mr.

thefailureofa lawyer to heed a substantialriskthatcircumstancesexistor thata resultwill

shouldhave known thathisconductviolatedRule 1.15and Rule 50. A negligentmental stateis

(paragraph30, supra). Under thesecircumstancesthepartiesagreethatMr. Foley knew or

contemporaneous billingrecordsthatcouldsubstantiatetime spenton Ms. Sawyer's matter

representedto the court that fees were"exhausted,"when he hasadmittedhe kept no

supra), failed toaccountin any form for another $5,000retainer(paragraph21, supra), and

an unearnedretainerinto hisoperatingaccountratherthan hisclienttrustaccount(paragraph13,

understandingofeven thebasicsoflaw officeaccountingprocedures.For example, he deposited

was violatingRule 1.15and Rule 50. Mr.Foley'sbreaches werefundamental,evincinga lackof

Under thesecond prong ofthe analysis, Mr. Foley knew orshouldhave known that he

compliance with Rule 1.15and Rule 50.

He filedAnnual TrustAccounting Compliance Certificateswhich falselystatedthat he was in

hours spent on her matter so that she could understand how that retainer was being exhausted.

communicate with her regardingtheamount ofretainerhe kept from theescrow accountand the

account for and report on themaintenanceand handlingofhis client trustaccounts.He failed to

well as to the Court. He failed to properly safeguard Ms.Sawyer'sfunds and toproperly

Under the firstprong ofthe analysis, Mr. Foley violated dutiesowed to Ms.Sawyer as

greater than thesanctionfor the most seriousmisconduct." Id. (citing Richmond's Case, 152

instanceofmisconduct among a numberofviolations; it might well be and generally should be

the sanction imposed"shouldat least be consistent with the sanction for the most serious p. 12 Page 12 of18

Public Censure. 5 Section 4.13 uses the term"Reprimand." The most analogous sanction in NewHampshire is a

dealingwith clientpropertyand causesinjuryor potentialinjuryto a 4.13 Reprimand5isgenerallyappropriatewhen alawyerisnegligentin injuryor potentialinjuryto aclient. know thathe isdealingimproperlywith clientpropertyand causes 4.12 Suspensionisgenerallyappropriatewhen a lawyer knows or should

clients.Section4.1ofthe Standards provides,inpertinentpart, as follows:

trustaccountinvolvedbreachesofMr. Foley'sduty toprotecttheinterestsand propertyofhis

guidancefordetermininga baselinesanction.Mr. Foley'sfailureto properlymaintaintheclient

and certificationrequirementscontemplatedunder Rule 50. The Standards providematerial

properlyand by leavingtheCourt and thepublicindoubt as to theviabilityoftrustaccounting

raisethequestionwhether lawyers can be trustedtomanage and account fortheirclients'funds

Mr. Foley caused harm to the legalprofessionby operatinghisofficeinsuch a way as to

possibleclaimsagainstMr. Foley or his firm. See Commentary, Standards, § 4.12. d. co-minglingclientfunds with his own,therebysubjectinghisclients'propertyto

c. being out oftrustas to Ms.Sawyer's matter;and

work inher divorce; b. failing toobtainherapprovalforretainingspecificamounts as retainersforongoing

earned as fees,as well as the balance ofsuch retainer; a. leavingMs. Sawyer uninformed concerningtheamount ofretainerthatwas being

by:

conductisassessed.Mr. Foley caused harm orpotentialharm to Ms.Sawyer and otherclients

Under thethirdprong oftheanalysis,the actual andpotentialinjuryofMr. Foley's

exerciseinthe situation.

follow,which failure is adeviationfrom thestandardofcarethata reasonablelawyer would p. 13 Page 13 of18

breachinghisdutiesunder Rule 50. a. The partiesthusagreethatMr. Foley knew or shouldhave known thathe was

certifiedhiscompliance with therule.

was incompliance with Rule 50, butthathe did not sodetermine,and thathe nevertheless

acknowledges thathe had theknowledge, information,and opportunityto determinewhether he

Court in filing hisannualtrustaccountingcompliance certificates.However, Mr. Foley

trustaccountreconciliationrequirementsofRule 50; b) to be"outoftrust";or c) todeceive the

The partiesagreethatMr. Foley did not have aspecificintenta) todisregardtheclient

on the legalproceeding. legalproceeding,or causesan adverseor potentiallyadverseeffect being withheld,and causes injuryor potentialinjuryto apartyto the are false or intakingremedialactionwhen materialinformationis isnegligenteitherindeterminingwhether statementsor documents 6.13 Reprimand [public censure] isgenerallyappropriatewhen a lawyer on thelegalproceeding. legalproceeding,or causesan adverseor potentiallyadverseeffect remedialaction,and causesinjuryor potentialinjuryto apartytothe materialinformationisimproperlybeing withheld,and takesno statementsor documents arebeingsubmittedto thecourtor that 6.12 Suspension isgenerallyappropriatewhen a lawyer knows thatfalse

Misrepresentation)provides,inpertinentpart, as follows:

duty owed to the legalsystem and to the Court. Standards § 6.1 (FalseStatements,Fraud and

50,regardingthe filingofaccuratetrustaccountingcompliance certificates,involveda breach of

properaccountingproceduresshouldbe suspended").Mr. Foley'sfailuretocomply with Rule

Standards, § 4.12;Commentary ("lawyerswho are grosslynegligentinfailingtoestablish

suspensionunder a "shouldhave known" standard,which isessentiallya negligencestandard.

Standard4.12 isunique among the Standards because it isallowsfor abaseline

client. p. 14 Page 14 of18

conditionsdesignedtoensureimplementationofeffectiveremedialmeasures,is anappropriate

sanctionanalysis,indicatethat asix-monthsuspensionstayedfor one year,combined with

The aggravatingand mitigatingfactorsevidentin thiscase,combined with thebaseline

The ADO has reviewed thesedocuments and approvesoftheircontent.

monthly statementstoclientsto keepthem apprisedoftheirrunningbalances.

reconciliations.He contemporaneouslytrackstime spenton each clientmatterand now sends

usesQuickBooks tokeep separateclientledgersand conduct Mr. Foley'smonthly

practices. He now uses written feeagreementsin all matters. Heemploys a bookkeeperwho

Mr. Foley refunded$5,000 to Ms.Sawyer and hastakenstepsto improve hisoffice

d. Absence ofa dishonestor selfishmotive. See Standards § 9.22 and 9.32.

c. Expressionofremorse and hisacceptanceofresponsibility;and

b. Full disclosureto the ADO and his cooperativeattitudein theproceedings;

a. Good faith effortto make restitutionand rectifyconsequencesofmisconduct;

Mitigatingfactorsincludethefollowing:

September 27, 2002, and#10-057 on April 25,2011. experiencein thepracticeoflaw; and twopriorWarnings: #00-N-l 18 on d. In this case, two aggravatingfactorsarepresent:Mr. Foley'ssubstantial

mitigatingfactors. E.g., Conner's Case, 158 N.H. at303. c. The baselinesanctionmust be consideredinlightofany aggravatingand

sanctionfor Mr.Foley'sconductissuspension. b. Under theforegoingcircumstances,thepartiesagreethatthecombined baseline p. 15 Page 15 of18 trustaccount). an overdraw,a failure to keepadequaterecords,and thegeneralmismanagement ofhisclient theattorney's"neglect,oversight,and ignorance"ofpropertrustaccountingproceduresled to (imposinga six-monthsuspension,all stayed,subjectto atwo-yearprobationaryperiodwhere failedtocommunicate sufficientlywith hisclients); In re Small, 818 N.E.2d 466 (Ind.2004) failed to keepproperrecordsofhisclienttrustaccount,overdrew hisclienttrustaccount,and one-yearsuspension,all stayed, subject to conditions, where theattorneycommingled funds, account); Mahoning Cnty. Bar Ass'n v. Palombaro, 904 N.E.2d 529 (Ohio 2009) (imposinga maintainproperrecordsofhisclienttrustaccount,and failed toproperlyreconcilethat subjectto aone-yearprobationaryperiod, where theattorneycommingled funds, failed to Counsel v. Dockery, 979 N.E.2d 313 (Ohio 2012) (imposinga one-yearsuspension,allstayed, adequaterecords,and thegeneralmismanagement ofhisclienttrustaccount); Disciplinary

ignorance"ofpropertrustaccountingproceduresled to anoverdraw,a failuretokeep stayed, subject to atwo-yearprobationaryperiod where theattorney's"neglect,oversight,and Commission); In re Small, 818 N.E.2d 466 (Ind.2004) (imposinga six-month suspension,all adequatelyrespondtorequestsforinformationfrom Indiana'sSupreme Court Disciplinary failed to obtainproperauthorizationforwithdrawalsfrom thataccount,and failed to attorneyoverdrew hisclienttrust account, failed tomaintainproperrecordsofthataccount, a thirty-daysuspension,allstayed,subjectto atwo-yearprobationaryperiod,where the maintain proper trust account records); In re Aguilar, 984 N.E.2d 1235 (Ind.2013) (imposing hisclienttrustaccount,commingled funds, madeunauthorizedwithdrawals,and failed to suspension, all stayed,subjectto a two-yearprobationaryperiod,where theattorneyoverdrew accounts. See, e.g., In re Suarez, 984 N.E.2d 1233 (Ind.2013) (imposing a sixty-day with conditions,where Respondents have breachedtheirobligationsregardingclienttrust matter, andself-reportedhis conduct). Otherjurisdictionshave imposed stayedsuspensions, shortagein hisclienttrustaccount,supplementedit with his own funds,investigatedthe N.H. 475(1999)(imposingtwo-yearsuspensionstayed wherelawyerdiscoveredsubstantial 6 New Hampshire case lawregardingstayedsuspensionsis sparse. See Morgan's Case, 143

billingpractices,and scopeofrepresentation;and c) hecompletessixhoursofCLE, inaddition

fullcompliancewith Rule 50; b) hiswrittenfeeagreementsclearlyset forth hishourlyrate,

monthly clienttrustaccountreconciliationsshall beconsistentlyapplied,and areperformed in

ensurethata)bookkeeping,accounting,and reportingpracticesarewell-definedand that

Foley'scommitment to takeremedialactionas set forth inParagraph99 oftheStipulation,to

The ADO and Respondent have joinedin thisrecommendation, in part,because ofMr.

Rule 1.15.6

sanction.This sanctionisproportionaltodisciplineimposed inothercasesinvolvingbreachesof p. 16 Page 16 of18

shallbe submittedtotheADO by the15thday ofeachmonth. accountreconciliationsfor aperiodoftwelveconsecutivemonths. Such reconciliations describedinParagraph 94(e),Mr. Foley shall filewith theADO hismonthly clienttrust f. Beginningon the15thday ofthemonth followingsubmissionoftheCPA'sreport

satisfactorycompliance therewithwithin30 daysoftheissuanceofsuch report. Foley agreestoimplement such additionalmeasures and toreportto theADO on his CPA's reportshallalsoincludeany recommendations forfurtherremedialaction.Mr. 50, andreportingon currentmonthly reconciliationsoftheclienttrustaccount. The practicesand proceduresin Mr.Foley'sofficedesignedto ensurecompliance with Rule file areportfrom theCPA confirmingimplementationofsatisfactoryaccounting e. Upon approvalby theADO, Mr. Foley shall,within45 days ofsaidapproval,obtainand

withRule 50. The ADO shall have14 days toapprovethesuggestedCPA. accounting practicesand proceduresin Mr.Foley'sofficedesignedto ensurecompliance CertifiedPublicAccountantwhom he will pay toidentifyand implement satisfactory d. Within 14 daysoftheapprovalofthisStipulationby the PCC, Mr.Foley shallidentifya

Rule 1.15 and Rule 50. requirements,regardinghow toproperlyhandle hisclienttrustaccountand comply with c. Mr. Foley shallcomplete sixhoursofCLE, inadditionto theminimum yearlyCLE

he holds a retainer,such billshallsetforththe balance ofsuch retainer. clientsmonthly and sendwith such bill anaccountingoftime spenton thematter.Where b. Mr. Foley shallcontemporaneouslytracktime spenton clientmatters.He shallbill

replenishingsuch retainer. procedureforbillingclients,and, in cases inwhich he acceptsa retainer,themethod for undertakes.Those agreementsshall set forth: scopeofrepresentation,hourlyrate, his a. Mr. Foley shallprovidewrittenfeeagreementstoclientsfor allmattersthathe

suspension:

Mr. Foley agreestocomply with thefollowingconditionsduringtheyearofstayed

accountand comply with Rule 1.15and Rule 50.

to theminimum yearlyCLE requirements,regardinghow toproperlyhandle hisclienttrust p. 17 Page 17 of18

legally-availablepost-judgmentenforcement remedies and procedures. See Sup. Ct. R.37(19)(c).

county in thestate,where itshallbe docketed as a finaljudgment and shallbe subjectto all

The Committee may file acopy ofthe finalassessmentwith thesuperiorcourtin any

assessmentby petitionto thesuperiorcourt in anycountyin the state. Sup. Ct. R.37(19)(b).

disagreement.Sup. Ct. R.37(19)(b).The Committee may resolvethematter,or enforcethe

statementofexpenses,listingeach disputedexpense and explainingthereasonsfor

final unless Mr. Foleyrespondsin writing, within thirty (30) daysofreceiptoftheCommittee's

stenographers,transcripts,copying,inventoryand auditexpenses.The assessmentshallbecome

matter. See Sup. Ct. R.37(19)(b).Costs can include,but are notlimitedto:mileage,

theexpensesincurredby theCommittee in theinvestigationand enforcementofthisdisciplinary

The ProfessionalConduct Committee acceptstheStipulationthatMr. Foley agreestopay

suspensionstayedfor oneyearwith conditions.

with theStipulationas tosanction.The appropriatedisciplineinthismatteris a sixmonth

Having acceptedtheStipulationas to the Facts and Ruleviolations,theCommittee agrees

effective.

hearing,Mr. Foley isfound incontempt;his sixmonth suspensionshallbecome immediately

orderedto show cause,Mr. Foley shall beentitledto anevidentiaryhearing.Ifaftersuch

subjectto anordertoshow causewhy he should not be found incontempt. In theeventhe is

In theeventMr. Foley fails tocomply with anyoftheforegoingconditions,he will be p. 18 Page 18 of18

File Stephen L.Tober, Esquire Sara S. Greene, DisciplinaryCounsel Distribution:

Rule 50.

SafekeepingProperty,Rule ofProfessionalConduct 8.4(a):General Rule; andSupreme Court

ProfessionalConduct 1.4:ClientCommunication, Rule ofProfessionalConduct 1.15:

suspension,stayed for one year withconditions,to Richard N.Foley,forviolatingRule of

For allofthe above reasons,the ProfessionalConduct Committee issuesa sixmonth

Office'scollectionefforts.

The Respondent shall beresponsiblefor all costsincurredas aresultoftheAttorney Discipline p. 21 File Stephen L. Tober,Esquire Sara S.Greene,DisciplinaryCounsel Distribution:

March 18, 2015

Upon consideration,theCommittee votedto close thematter.

and Martha Van Oot. Richard H. Darling was absent. Margaret R. Kerouac, Mona T. Movafaghi, Georges J. Roy, David W. Ruoff, Richard D. Sager Chair, Elaine Holden, Vice Chair, Peter G. Beeson (viateleconference),Susan R. Chollet, captionedmatter.Members presentincludedDavid M. Rothstein,Chair,Heather E. Krans,Vice On March 17,2015, the ProfessionalConduct Committee deliberatedtheabove

Margaret R. Kerouac Barbara J. Guay, Legal Assistant Richard H. Darling* * non attorneymember Susan R. Chollet* Martha Van Oot PeterG. Beeson RichardD. Sager ElaineHolden,* Vice Chair 603-224-5828 ♦ Fax 228-9511 David W. Ruoff Heather E. Krans, Vice Chair Concord,New Hampshire 03301 Georges J. Roy* David M. Rothstein,Chair 4 Chenell Drive,Suite 102 Mona T. Movafaghi