Finis E. Williams III (2014)

references to the record, as follows: Hearing Panel Report were not in dispute. The Committee summarizes those facts, with The Committee determined and the parties agreed that the facts set forth at pp. 3-10 of the

Professional Conduct. publicly censured for violating Rules US(f) and 1.15(g) of the New Hampshire Rules of Report. For the reasons stated herein, the Committee determined that Mr. Williams should be ("Exh. ") submitted to the Hearing Panel, the hearing transcript ("T") and the Hearing Panel Notice of Charges ("F ANC"), the Answer of Mr. Williams ("Answ. "), the Joint Exhibits The Committee reviewed the record, including but not limited to the First Amended

and Gladys Strickhart, Legal Assistant to Ms. Greene, were also present. ADO, and James C. Wheat, Esquire, on behalf of the Respondent. Finis E. Williams, III, Esquire, Oral argument was presented by Sara S. Greene, Disciplinary Counsel, on behalf of the

Chollet were absent. Alan J. Cronheim was recused and not present. Richard D. Sager, Martha Van Oot and Mary Elizabeth Tenn. Peter G. Beeson and Susan R. Pizzimenti, Vice Chair, Elaine Holden, Vice Chair, Richard H. Darling, Heather E. Krans, arguments regarding sanctions. Members present included: David M. Rothstein, Chair, Benette Finis E. Williams, III ("Mr. Williams") to the ADO's Limited Appeal, as well as the parties' ("Limited Appeal"), filed by the Attorney Discipline Office ("ADO"), and the Objection of argwnent and deliberated the issues raised by the Limited Appeal Regarding Rule Violations On February 18,2014, the Professional Conduct Committee (the"Committee") heard oral

Williams, Finis E., III advs. Attorney Discipline Office # 12-008

Richard H. Darling* Holly B. Fazzino, Administrator Alan J. Cronheirn • 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 Pizzimenti, Vice Chair Concord, New Hampshire 03301 Richard D. Sager David M. Rothstein, Chair 4 Chen ell Drive, Suite 102 Heather E. Krans

submitting said plan." !d. p. 122. Lee was ordered to pay for"any fees and charges associated with devising and "lead" expeti"in charge of' developing a plan and petmit application to submit to DES. Exh. 6, remediation. Exh. 6, pp. 120-22. The Court ordered that OBA's expert would become the diligent, but ultimately unsuccessful, effotis to comply with the previous order regarding addressed Lee's attempts to procure a DES petmit. Exh. 6. The Court found that Lee had made 6. On January 27, 2010, the Court issued an order ("the January Order") which

Ex. 2, p. 19. directly related to remedial actions either ordered by the Court or the State..." Exh. 5, pp. 1 06-07; payment of expenses, including attomey's fees, engineering costs or other costs and expenses The Subordination Agreement allowed Lee to botTow funds against his house to"be used solely for Office on behalf ofLee in 2009 addressing DES's lien against Lee's property. Exh. 2, p. 19; Exh. 5. 2, p. 19. Mr. Williams ultimately negotiated a Subordination Agreement with the Attomey General's delinquent in legal fees owed to Mr. Williams and in other fees owed to the engineer he hired. Exh. appearance on behalf of Lee on April2, 2007. Exh. 2, pp. 17-18; Exh. 3, p. 69. Lee became 5. After the Court issued its decision in the nuisance action, Mr. Williams filed a notice of

engineers) to"implement the removal plan." !d. Lee was to also contract with the necessary technical experts and professionals (for example, to remove certain material that his actions had caused to be placed in the lake. Exh. 4, pp. 82-83. 71-83. Specifically, Lee was ordered to apply"forthwith," at his sole expense, for a DES pennit Lee's actions constituted a private nuisance and ordered Lee to pay for remediation. Exh. 4, pp Exh. 4. In an order dated September 27, 2006, the Carroll County Superior Court found that developed in the lake, so as to restore the Lovell River's"fan-shaped delta." Exh. 2, pp. 17-18; 4. OBA sought injunctive relief to remove the breakwaters and the sandbar that had

to serve as liens on Lee's property. !d. the breakwaters. !d. The DES also recorded the Administrative Orders at the Registry of Deeds Services ("DES") issued two Administrative Orders against Lee, which required him to remove detriment of OBA. Exh. 2, pp. 17-19. The New Hampshire Department of Environmental Exh. 2, pp. 17-18. Lee constructed two unauthorized breakwaters in Lake Ossipee, to the 3. Lee owns property on Lake Ossipee, near the Lovell River and the OBA development.

brought in 2004. Exh. 4, p. 71. underlying civil matter ultimately giving rise to this disciplinary action was a nuisance action this matter to the Attomey Discipline Office (the"ADO") in December 2011. Exh. 1. The ("OBA"), in a nuisance lawsuit filed against Mr. Williams' client, Donald E. Lee, Sr., refened 2. Attomey Jed Callen, who represented the plaintiff, Ossipee Bluffs Association

admission there is no longer active. T 120, Answ. ~2. in 1985. T 120. Mr. Williams was previously admitted to practice Jaw in Illinois in 1981, but his 1. Respondent, Finis E. Williams, III, is an attorney admitted to the New Hampshire Bar p. 3 Page 3 of 14 his operating account. Exh. 34; T 145. Upon withdrawing money fi·om the escrow account, Mr. Williams deposited all payments into 1 Mr. Williams had Lee's permission to withdraw legal fees from the escrow account. T 155.

necessary patticipation in the DES approval process from submission submission of the DES permit Application, and Petitioner's [OBA's] remedial design required for the DES permit application, the production and of all Petitioner's [OBA's] costs directly associated with the creation of the Application Process: That the Respondent shall be responsible for payment B. Clarification of Respondent's [Lee's] Obligation to Pay for Permit

permit application process. It stated, in pettinent patt: use of the escrow funds. Exh. I 0. The September Order clarified Lee's obligation to pay for the 10. On September 7, 2010, the Coutt issued an order ("the September Order") regarding

from the escrow account to himself for legal fees. Exh. 7. the escrowed funds to Callen. T. 143. On August 31, 2010, Mr. Williams disbursed $2,981.14 Williams understood that the pleading filed on behalf of the OBA sought to transfer control of captioned"Supplemental Argument: Hearing of August 17, 2010. Exh. 9, pp. 131-32. Mr. benefit of OBA, aletting the Court to Mr. Williams' May payment to himself; in a pleading 9. On August 25,2010, Mr. Callen moved to transfer the escrow fund to himself for the

7. On May 11, 2010, Mr. Williams disbursed $16,641.29 to himself from the escrow account.1 placed in the escrow account to be maintained by Mr. Williams. FANC ~21; Answ. ~ 21; Exh. April2010, Lee procured a loan encumbering his Ossipee property and caused $35,000 to be responsibility to OBA, in addition to his professional responsibility as a lawyer to his client. In agent for funds in which OBA had an interest. At this time, Mr. Williams had a fiduciary 8. The January Order, in essence, appointed Mr. Williams, Lee's attorney, as escrow

the aforementioned provisions." !d. escrow account in the name of Lee's attomey, Finis E. Williams, III and managed according to "monies received from the bank loan encumbering Lee's subject property shall be placed in an "directly related to remedial actions" incurred by either party. !d. The Order further stated that the Subordination Agreement, the January Order authorized the payment of attomeys' fees Donald R. Lee, Sr.,... and State v. Donald R. Lee, Sr." Exh. 6, p. 124. By its incorporation of either ordered by the Comt or the State regarding the cases of Ossipee Bluffs Association v. attomey' s fees, engineering costs or other costs and expenses directly related to remedial actions net monies obtained from any bank loan would be used solely for payment of expenses, including Exh. 6, pp. 123-24. The Order quoted the Subordination Agreement as follows:"the amount of accordance with the Subordination Agreement between Lee and the State of New Hampshire." Lee acquires as a loan from a bank encumbering subject property must be used and managed in previously been granted at the request ofOBA. Exh. 6, p. 123. The Court ordered:"any money 7. The January Order also vacated an ex parte attachment against Lee's property that had p. 4 Page 4 of 14 September 30,2010, the Court denied Mr. Williams' Motion for Reconsideration and Williams], was proper under the tetms of this Court's January 2010 Order." Exh. 12, p. 161. On legal fees removed from escrow [in May 2010] and paid to Respondent's counsel [Mr. account. Exh. 12, pp. 159-61. OBA asked the Court to"[c]onsider whether the $16,641.29 in 12. OBA objected to an order allowing Lee to pay Mr. Williatns from the escrow

fees in connection with said case." Exh. 13, p. 175. Hampshire which permits him to use monies when necessary to pay engineering and attomey's that respondent [Lee] may still abide by the Subordination Agreement with the State ofNew reiterated this request in a reply dated September 29,2010, when he asked the court to"[o]rder Mr. Lee is barred from paying his own fees in connection with this case." Exh. 11, p. 152. He entitled to comply with the Subordination Agreement and the Court was not issuing an order that Clarification of the September Order. Exh. 11. He sought"clarification that he [Lee] is still 11. On September 16,2010, Mr. Williams filed a Motion for Reconsideration and

Exh. 10, pp. 141-42 (emphasis supplied).

of paying for implementation of any approved remediation. Respondent's counsel [Mr. Williams] for that purpose, and for the purpose Ossipee properties shall be [sic} likewise continue to be held in escrow by and any and all additional funds borrowed against Respondent's [Lee's} costs and foes incurred by OBA in producing the DES permit Application; Respondent's counsel [Mr. Williatns], to be used exclusively for payment of $8,524.65 remaining as of 6-4-10 into the escrow account held by D. That the Respondent [Lee] shall, if not already accomplished, transfer the

Orders. show that same fall(s) with the parameters of this Order and/or that of earlier not pay but timely objects to, the burden shall be on the Petitioner [OBA] to this Court's Orders. In reference to cost(s) that the Respondent [Lee] does the Court that the disputed charges are not compensable under the terms of reviewed above, the Respondent [Lee] shall have the burden of persuading invoices in full within thirty (30) days and fails to object timely to same, as Court. If the Respondent [Lee] fails to pay the Petitioner's [OBA's] charges, and file a detailed objection as to any disputed charges with the thhty (30) days, pay the Petitioner [OBA] in full or pay any undisputed for such Pennit related expenditures, the Respondent [Lee] shall, within remediation Permit. Upon receipt of Petitioner's [OBA's] monthly invoice costs necessaty to Petitioner's [OBA's] efforts to procure the DES [OBA's] necessary legal, engineering, clerical, pennit fees and any other through the issuance of a DES pennit. Such fees include Petitioner's p. 5 Page 5 of 14

Withdraw on February 2, 2012, but ordered that Mr. Williams would"continue to hold in escrow Lee, to which Callen objected. Exh. 29; Exh. 30. The Court granted Mr. Williams' Motion to 20. On November 30, 2011, Mr. Williams filed a Motion to Withdraw as counsel for

Comt stayed the matter pending a tuling in the bankruptcy case. Exh. 28. November 17, 2011, Lee filed a Suggestion ofBanktuptcy. Exh. 27. On November 23, 2011, the which the Supreme Court denied on November 9, 2011. Exh. 25; Exh. 26. Shmtly thereafter, on the Court's September Order. Exh. 23. Mr. Williams then filed a Motion for Reconsideration, 19. On September 29, 2011, the Supreme Court issued an order in Lee's appeal, affirming

escrow funds. Exh. 7. payment. Exh. 22. On September 12,2011, Mr. Williams paid himself$1,266.69 out of the Exh. 7. Mr. Callen filed a supplement to his Emergency Motion to infmm the Court of such 18. On August 12, 2011, Mr. Williams paid himself $16,181.75 out of the escrow funds.

Disgorgement, Attachment and Sanctions, to which Mr. Williams objected. Exh. 20; Exh. 21. September Order. Exh. 56. Mr. Callen subsequently filed an Emergency Motion for Contempt, Williams could"square" continuing to pay himself his legal fees out of escrow given the Court's 17. On Febmary 18, 2011, Mr. Callen wrote a letter to Mr. Williams asking how Mr.

pending motions until final disposition of the appeal. Exh. 19. Williams' failure to pay the $3,580 invoice. Exh. 18. On January 19,2011, the Court stayed all 16. Mr. Callen filed a Motion for Contempt dated December 14,2010 regarding Mr.

Williams disbursed to himself as legal fees $6,462.06 from the escrow account. Id. 2010 he deposited another $25,000 into the escrow account. Exh. 7. On January 6, 2011, Mr. 15. In November 2010, Lee deposited $10,000 into the escrow account, and in December

not acted upon by the Court or the OBA. pay"said attomeys' fees .. .in escrow to the Court pending appeal," see Exh. 42, an offer that was the"substantial benefit" rule. Exh. 17, p. 410. On November 1, 2010, Mr. Williams did offer to client should have to pay OBA's attorney's fees without a finding of bad faith or application of 1, 2010 (Case No. 2010-740). Exh. 17. Williams appealed, inter alia, the issue of whether his 14. Lee filed a Notice of Appeal with the New Hampshire Supreme Court on November

Mr. William's Motion and ordered that Mr. Williams pay that amount"forthwith." Exh. 16. this invoice in a Motion dated October 8, 2010. Exh. 15. On October 20, 2010, the Court denied fees from the escrow account in the amount of$3,580. Exh. 12, p. 163. Mr. Williams contested 13. On September 10,2010, Mr. Callen submitted an invoice for payment of his legal

order. Exh. 14. consider whether Mr. Williams' May 2010 payment to himself violated the Court's January Clarification, leaving intact the September Order and denying OBA's request that the Court p. 6 Page 6 of 14

with the Court's Order and retumed $24,535.50 to the escrow account. Exh. 34. that his inte1pretation was incmTect. Exh. 54, p. 2. In January 2013, Mr. Williams complied 2012, Mr. Williams had offered to repay the amount he had paid himself if the Court determined make payments to Mr. Williams from the escrow account. Exh. 54; T 133-39. In September Mr. Williams' May 2010 payment to himself out of escrow, as finding that Lee could continue to that he read the Court's September Order, denying Callen's request to rule on the propriety of 24. Both before the Court and in the disciplinary proceeding, Mr. Williams maintained

Exh. 33, p. 358. from the escrow account for payment of the respondent's [Lee's] attomey's fees and expenses." of the Court's orders and believed, though inaccurately so, that he was entitled to withdraw funds "[b]ased upon Attomey Williams' representations, it appears he had a genuine misunderstanding declined to impose sanctions on Mr. Williams. Exh. 33, pp. 357-58. The Court held that September Order, for a total of $24,535.50. !d. While the Court ordered disgorgement, it 23. The Court ordered Mr. Williams to disgorge payments he made to himself after the

/d.

to pay his legal bills would undermine the pntpose of the account. satisfaction of the DES. To allow the respondent [Lee] to use the escrow account a pool of funds for the petitioner [OBA] to draw from to remediate the site to the consistent with the purpose for which the escrow account was created-to provide

language from the September Order was: any approved remediation."' Exh. 33, p. 356. The Court continued, stating that the quoted producing the DES permit Application ... and for the purpose of paying for implementation of from the escrow account 'exclusively for payment of costs and fees incurred by OBA in Superior Court found that the September Order"unambiguously limited the withdrawal of funds 22. On Mr. Callen's Motion for Contempt, Disgorgement, Attachment and Sanctions, the

escrow agent on March 29, 2013. Exh. 35. $3,580 as previously ordered, testifying that he forgot. T 152. Mr. Williams was removed as part of the bankruptcy estate. Exh. 32, p. 329. Mr. Williams did not at that time pay Mr. Callen 21. On September 18,2012, the Bankruptcy Court ruled that the escrow account was not

Exh. 31, pp. 321-22. involving pending issues relating to Mr. Williams' payments to himselffrom the escrow account. receive notices from the Court, and would be required to appear in any further proceedings funds in his trust account placed there consistent with earlier Court Order(s)," would continue to p. 7 Page 7 of 14

Based upon facts summarized above, the Committee agreed with the Hearing Panel's

issuance of a waming. Hearing Panel Report at 11, 15. violation of Rules 1.15(f) and (g) based on the non-payment to Mr. Callen, but recommended the tlu·ee payments in 2011. Hearing Panel Report at 10. The Panel found Mr. Williams not in or 3.4(c). Hearing Panel Report at 11. It found him in violation of Rule 1.15(g) based on the After a hearing, the Hearing Panel found that Mr. Williams did not violate Rules 1.7(a)(2)

failing to pay those funds to Mr. Callen. Hearing Panel Repmt at 2. Hearing Panel Report at 1-2. Finally, the ADO alleged that Mr. Williams violated Rule 3.4(c) by (g) when he failed to pay Mr. Callen $3,580.00 from the escrow funds as ordered by the Court. 2011. Hearing Panel Report at 2. The ADO alleged that Mr. Williams violated Rule 1. I 5 (f) and violated Rule 1.15(g) in making payments to himself out of the escrow account three times in his obligations to OBA and Lee. Hearing Panel Report at 1. It alleged that Mr. Williams The ADO alleged that Mr. Williams violated Rule 1.7(a)(2) due to a conflict of interest in

convincing evidence. dismissed the alleged violations of Rule 3.4(c) and Rule 1.7(a)(2) for lack of clear and E. The Committee accepted the Hearing Panel's Report to the extent that it

Mr. Williams' duty to keep the funds separate until the dispute was resolved. 31, 2010, following the filing of an objection by the OBA on August 25, 2010, which triggered Rule 1.15 (g) by making a payment of$2,981.14 to himselffrom the escrow account on August D. The Committee finds by clear and convincing evidence that Mr. Williams violated

12, 2011 and September 12, 2011 violated Rule 1.15(g). payments made by Mr. Williams to himself from the escrow account on January 6, 2011, August not violate Rule 1.15 (g), when it found, by clear and convincing evidence, that each of the the payment made by Mr. Williams to himself from the escrow account on August 31,2010 did C. The Committee concludes that the Hearing Panel erred when it failed to find that

which Mr. Callen's interest was not in dispute. to receive and did not promptly distribute to Mr. Callen that portion of the escrowed funds as to Rule 1.15(f) when he did not promptly deliver funds to Mr. Callen which Mr. Callen was entitled B. The Committee finds by clear and convincing evidence that Mr. Williams violated

$3,580.00 as ordered by the Comt. found that Mr. Williams did not violate Rules 1.15 (f) and (g) when he failed to pay Mr. Callen A. The Committee concludes that the Hearing Panel erred as a matter of law when it

II. RULINGS OF LAW p. 8 Page 8 of 14 deliberations, considered first the arguments advanced by the ADO for additional Rule payment, which the Hearing Panel's Report does not explicitly address. The Committee, in its could rule on all issues without remand to the Hearing Panel, including the August 31, 2010 in their written memoranda and during oral argument. The parties agreed that the Committee The respective arguments of Disciplinary Counsel and the ADO were presented forcefully

record. by the Hearing Panel in his favor were based upon factual determinations, supported by the the ADO's chamcterization of the issues on appeal as legal issues, contending that both rulings funds were to be used exclusively for the benefit of the OBA. Id at 6-7. Mr. Williams disputed did not have notice of the dispute until the September Order which made clear that the escrowed pleading as objecting to his payment offees under the January 2010 Order; and (3) Mr. Williams put Mr. Williams on notice of a dispute; (2) Mr. Williams did not construe the August 25, 2010 did not violate Rule 1.15 (g) because: (I) the August 25, 2010 pleading filed by the OBA did not not err in ruling that the payment of fees made by Mr. Williams to himself on August 31, 20 I 0 See Objection to Limited Appeal at 6. Mr. Williams further argued that the Hearing Panel did delay resulting from an appeal to the New Hampshire Supreme Court and his client's bankruptcy. credited Mr. Williams' testimony that he forgot about the obligation after nearly two years of the court-ordered fees to Mr. Callen did not violate Rule 1.15(f) and (g) because it properly Mr. Williams argued that the Hearing Panel did not err in finding that his failure to pay

escrow account and the requirement that [the funds] be spent for OBA's benefit." /d. at 11-12. September Order, which the Hearing Panel found"'unambiguously' conveyed the purpose of the challenging Mr. Williams' right to make such payments, but before the Court issued its payment was made by Williams after the OBA had filed a its August 25,2010 pleading himself from the escrowed funds on August 31, 2010 violated Rule 1.15(g). Id at II. This that the Hearing Panel erred when it failed to find that Mr. Williams' payment of his fees to have characterized Rule 1.15 as a"strict liability" scheme. /d. at 7-10. The ADO further argued keeping of property, contains no scienter requirement, and pointed out that other jurisdictions about the Order. See Limited Appeal at 6. The ADO argued that Rule 1.15, governing the safe­ Court on October 10, 2010, because the Panel credited Mr. Williams' testimony that he forgot (g) as a result of Mr. Williams' failure to pay Mr. Callen's fees of$3,580.00 as ordered by the The ADO argued that the Hearing Panel erred in finding no violation of Rules 1.15(f) and

determination. violations, as well as the arguments made by Mr. Williams in support of the Hearing Panel's made by Disciplinary Counsel in support of its request that the Committee find additional Rule Comt. In reaching its conclusion, the Committee considered the written and oral arguments he violated Rules 1.5(f) and (g) when he failed to pay $3,580.00 to Mr. Callen as ordered by the Rule 1.15(g) when he made a payment to himself out of the escrow fund in August of20 10, and in 2011. However, the Committee found two additional rule violations: Mr. Williams violated also agreed with the Panel that Mr. Williams violated Rule 1.15(g) based on the three payments conclusions with regard to the alleged violations of Rules 1.7(a)(2) and 3.4(c). The Committee p. 9 Page 9 of 14 determination that the payment of$6,462.06 on Januaty 6, 2011 violated Rule 1.15 (g) on the of the Subordination Agreement was issued. Mr. Williams does not contest the Hearing Panel's Williams paid himselffrom the escrowed funds after the January Order incorporating the tenns Again, there was no dispute as to the timing or amount of the four payments Mr.

B. Payment of Attorneys' Fees From The Escrow Account On August 31, 2010

Limited Appeal at 7; Objection to Limited Appeal at 5. the ADO had failed to raise its argument on strict liability before the Hearing Panel See, e.g., argument that Rule 1.15"is a strict liability scheme," or Mr. Williams' procedural argument that without regard to his mental state, the Committee did not find it necessary to address the ADO's a finding of liability on the pat1 of Mr. Williams when he failed to discharge his fiduciary duties, exists under Rules 1.15(f) and (g). Because the plain language of Rule 1.15(f) and (g) compelled tribunal); Rule 3.4(c) (disobedience of obligation under tules of tribunal). No such requirement that a respondent acted"knowingly" to establish a rule violation. See, e.g., Rule 3.3(a) (candor to 1.15. The plain language of several Rules of Professional Conduct requires the ADO to prove significant delay in resolving the dispute does not absolve Mr. Williams of liability under Rule -and even Mr. Callen and the Court-forgot about the payment due to Mr. Callen following a resolution of any dispute violated the clear language of Rules 1.15 (f) and (g). That Mr. Williams 2012. Mr. Williams' failure to promptly distribute the claimed amount to Mr. Callen upon in the payment of his fees from the escrowed funds was resolved no later than September 18, property as to which the interests are not in dispute." Any dispute over the interest ofMr. Callen until the dispute is resolved," and that the lawyer must"promptly distribute all pot1ions of the persons (one of whom may be the lawyer) claim interests, the property shall be kept separate Rule l.S(g) requires that when a lawyer is"in possession of property in which one or more or third person any funds or other property that the client or third person is entitled to receive." Rule 1.5 (f) provides, in pertinent part, that"a lawyer shall promptly deliver to the client

disagreed that the fact absolved him of liability under these rules. Panel Report at 11. The Committee accepted that Mr. Williams forgot about his obligation, but Williams not in violation because he forgot about the Order to pay Mr. Callen. See Hearing were not established by clear and convincing evidence; specifically, the Panel found Mr. dismissed the alleged violations of Rules 1.5 (f) and (g) because it found that these violations came due and that no payment was made by Mr. Williams at that time. The Hearing Panel dispute that Mr. Williams was still the escrow agent at the time the obligation to pay Mr. Callen appeal to the New Hampshire Supreme Court and the bankruptcy filed by his client. There is no his obligation to pay those funds was delayed until September 18, 2012 by stays issued in the attorneys' fees ordered to be paid by the Court on October 20, 2010. There was no dispute that There was no dispute that Mr. Williams failed to pay Attorney Callen $3,580.00 in

A. Failure to Pay Court-Ordered Attorneys' Fees

violations, and then addressed the patties' respective arguments on sanctions. p. 10 Page 10 of14

the Committee finds that the Hearing Panel eJTed when it failed to find that a foutth violation of escrow, the portion in dispute must be kept separate until the dispute is resolved.") Ac_cordingly, Douglas' Case, 147 N.H. at 543-544 ("[W]henever there is a dispute pertaining to funds in to bar any unilateral distributions by the fiduciary pending resolution of the claim See, e.g., Hearing Panel,"unambiguous," Rule 1. 15 (g) requires only a colorable"claim" by a third party OBA in its August 25,2010 pleading. Although the September Order was, as found by the of the January Order or the validity of the May payment of his fees that was challenged by the himself from the escrow account without first seeking clarification from the Coutt as to the scope "separate" until the OBA's claim to the funds was resolved. Significantly, Mr. Williams paid remaining escrowed funds and thus triggered his obligation to keep the escrowed account as a matter oflaw, to put Mr. Williams on notice that the OBA claimed an interest in the The Committee concluded that the August 25, 2010 pleading by the OBA was sufficient,

violation of Rule 1.15(g). Id. violated Rule 1.15 (g), but did not address the fourth payment alleged by the ADO to be in payment, as well as the two subsequent payments in 2011 to which Mr. Williams stipulated, manner." Hearing Panel Report at 10-11. Thus the Panel concluded that the January 2011 "the Court order [of September 10, 2010] unambiguously prohibited the funds to be used in that the January 6, 2011 payment, concluding that the January payment violated Rule 1.15(g) because from the escrow account to himself for legal fees on August 31, 2010, its analysis addressed only Williams's payment to himself in May, and found that Mr. Williams in fact disbursed $2,981.14 Although the Hearing Panel found that the August 25, 2010 pleading alerted the Court to Mr. depleted the escrow account, to which his client had deposited $35,000.00 in April of2010. payment of fees in the amount of $16,641 .29 to himself in May of 2010 had significantly exclusively for the benefit of OBA, a pleading filed, at least in part, because Mr. Williams's as of August 25,2010, when the OBA filed a pleading requesting that the escrowed funds be held dispute is resolved." (Emphasis added). Mr. Williams was in possession of the escrowed funds in which two or more persons claim an interest" shall keep the property separate"until the The plain language of Rule 1.5 (g) mandates that a lawyer in possession of any"property

dispute was violated when he paid himself legal fees on August 31, 2010. the dispute was resolved and to promptly distribute any portion of the escrowed funds not in that Mr. Williams's obligation under Rule 1.15(g) to keep the escrowed funds"separate" until remain inviolate until any dispute was resolved. Id. at 12. The Committee agreed with the ADO that the OBA claimed an interest in the escrowed funds, triggering the requirement that the funds whether the pleading filed by the OBA on August 25, 2010 constituted notice to Mr. Williams violated Rule 1. 15(g). See Limited Appeal at 9-11, The ADO's Limited Appeal raised the issue address whether Mr. Williams' payment of$2,981.14 to himself on August 31, 2010 also Panel Repmt at 5. The ADO, however, contended that the Hearing Panel erred when it failed to on August 12,2011 and $1,266.69 on September 12,2011 violated Rule 1.15(g). See Hearing account to payments for the benefit of OBA, and he stipulated that the payments of $16,181.75 ground that the Court's September Order "unambiguously" restricted payments from the escrow p. 11 Page 11 of 14 Hearing Panel to a baseline sanction of a public censure would reduce the sanction to a Mr. Williams's counsel reiterated that application of the mitigating factors recognized by the misrepresentation, lack of authority from the client and/or lack of remorse. At oral argument, censure was deemed to be the appropriate sanction because the conduct involved dishonesty, O'Meara's Case, 150 N.H. 157 (2003), and Welts' Case, 136 N.H. 588 (1993), where public based upon a "genuine misunderstanding" of the Order. He distinguished his case from Williams' payments to himself after the September Order were found by the Superior Court to be adjustment based upon mitigating or aggravating factors, Mr. Williams emphasized that Mr. sanction should be Public Censure, and that Public Censure should be the"starting point" for any client property and causes injury or potential injury to a client.") In arguing that the baseline Standard 4.13 ("Reprimand is generally appropriate when a lawyer is negligent in dealing with Mr. Williams contended that the baseline sanction should be Public Censure under ABA

the sanction analysis. See Limited Appeal at 13. acknowledged that the additional Rule violations it sought on appeal would not materially change see also Disciplinary Counsel's memorandum on Sanctions at 9-15, Disciplinary Counsel with New Hampshire law, specifically, Douglas' Case, 147 N.H. at 544 (six months suspension), justify deviation from the baseline sanction of suspension, and that a suspension was consistent argued before the Hearing Panel that the balancing of mitigating and aggravating factors did not potential injury to a client."). See Limited Appeal at 12-13. Although Disciplinaty Counsel had knows or should know that he is dealing improperly with client property and causes injury or suspension under ABA Standard 4.12 ("Suspension is generally appropriate when a lawyer baseline sanction for a knowing violation of the fiduciary duty to safeguard property is The ADO did not disagree with the Hearing Panel's determination that the presumptive

1.15(f)." issued a warning that"[i]n the future he must comply strictly with all requirements stated in Rule concem about his failure to promptly deliver property to which a third party was entitled and Williams's failure to pay Attomey Callen's fee violated Rule 1.15 (f) and (g), it expressed reputation, remorse and other circumstances). Although the Panel did not find that Mr. cooperation with disciplinary authorities, timely efforts at restitution, good character and violations, and Mr. Williams's experience) and mitigating factors (absence of dishonest motive, censure by consideration of both aggravating factors (selfish but not dishonest motive, multiple breach of the duty to safeguard property was suspension, which the Panel reduced to public based upon its determination that the presumptive baseline sanction under ABA Standard 4.1 for the September Order was a public censure. The Panel's recommendation of public censure was of Rule 1.15 (g) resulting from the three payments to himself from the escrow account following The Hearing Panel concluded that the appropliate sanction for Mr. Williams's violations

the OBA disputed Mr. Williams' right to payment of his fees from the escrow account. Rule 1.15(g) resulted from Mr. Williams' payment of fees to himself on August 31, 2010, after p. 12 Page 12 of 14 known" standard incorporated in ABA Standard 4.13 suppmts the baseline sanction of forgotten about his obligation to pay Mr. Callen due to the passage of time, the"should have 285, 307 (2009). The Committee further found that although Mr. Williams may have honestly which the Committee found to be in violation of Rule 1.15(g). In Re Wyatt's Case, 159 N.H. suspension to the August 31, 2010 and January 6, 2011 payments from the escrow accounts, knowledge was sufficient under ABA Standard 4.13 to apply the presumptive sanction of following the filing of the August 25, 2010 pleading by the OBA, and that such constructive should have known that there was a dispute as to OBA's entitlement to the escrowed funds knowledge or negligence.") The Committee found, based upon the record, that Mr. Williams 4.13. See, e.g. Bruzga's Case, 162 N.H. 52, 59 (2011) ("The mental state may be one of intent, escrow account, justifYing the presumptive baseline sanction of suspension under ABA Standard Williams had a knowing state of mind with respect to two of the four payments he made from the Under the second prong, the Committee affhmed the Hearing Panel's finding that Mr.

OBA asserted an interest separate. September Order absolved him of the responsibility to keep the escrowed funds in which the to make the Court ordered payment, any more than his misunderstanding of the Court's admission that he forgot to pay Mr. Callen did not absolve him of his professional responsibility $3,580.00 in attorney's fees as ordered by the Coutt on October 20, 2010. Mr. Williams's Mr. Williams also violated Rule l.lS(f) and 1.15(g) by failing to pay Mr. Callen

duties owed to OBA, the legal system, and the public. fees and charges. In failing to properly discharge his fiduciary obligations, Mr. Williams violated its filing on August 25, 2010 to restrict the use of funds exclusively for the payment ofOBA's hold the escrow money separate was triggered when OBA claimed an"interest" in those funds in 31,2010,January6,2011,August 12,2011 andSeptemberl2,2011. Mr. Williams's duty to attorney when he paid himself attorney's fees from the escrow account on four occasions, August violated Rule 1.15(g) by failing to safeguard property in violation of his fiduciary duties as an Under the first prong of the analysis, the Committee concluded that Mr. Williams

existence of aggravating or mitigating factors." Standards, supra §3.0. mental state; (c) the potential or actual injury caused by the lawyer's misconduct; (d) the Following the Standards, the Committee considered"(a) the duty violated; (b) the lawyer's Lawyers Sanctions (2005) (Standards) for guidance. Coffey's Case, 152 N.H. 503, 513 (2005). The Committee relied on the American Bar Association's Standards/or Imposing

(quoting Coddington's Case, 155 N.H. 66, 68 (2007)). profession and prevent similar conduct in the future." Grew's Case, 156 N.H. 361, 365 (2007) protect the public, maintain public confidence in the bar, preserve the integrity of the legal recognized that"the purpose of attorney discipline is not to inflict punishment but rather to The Committee, in reaching its decision that Mr. Williams should be publicly censured,

reprimand. See Oral Argument Transcript at 30. p. 13 Page 13 of 14

protect the public, maintain public confidence in the bar, preserve the integrity of the legal (2005). The pmpose of the Court's disciplinary power is"not to inflict punishment but rather to (2005). This sanction is also in accord with the ABA Standards for Imposing Lawyer Sanctions discipline. See, e.g., Conner's Case, 158 N.H. at 303-305; Richmond's Case, 152 N.H. at 159-60 The Committee's reconnnended sanction is in accord with the purposes of attorney

given a Public Censure for his violations of Rule 1.15(f) and (g). suspension was wananted. Accordingly, the Connnittee recommended that Mr. Williams be aggravating factors to the extent that a downward depatture fi·om the presumptive sanction of suspension, and it agreed with the Hearing Panel that the mitigating factors outweighed the agreed with the ADO the two additional Rule violations should not alter the baseline sanction of be supported by the record. Although the Connnittee did find two additional Rule violations, it authorities, factual findings which the ADO did not challenge and which the Connnittee f01md to rectifY the consequences of his misconduct, and that he cooperated with the disciplinary a good character and reputation, that he made good faith efforts to make restitution or otherwise motive. See, e.g. Welts' Case, 136 N.H. at 593. The Hearing Panel found that Mr. Williams had and were significant: (1) no relevant prior disciplinary history and (2) absence of a dishonest Case, 147 N.H. at 544. The Committee found that the following mitigating factors were present, These aggravating factors would support imposition of the sanction of suspension. See Douglas' 1.15 arising from his appointment as an escrow agent in litigation in which he was involved. Connnittee also found that Mr. Williams also had five instances of misconduct involving Rule ofRule 1.15(g) and (2) Mr. Williams's substantial experience in the practice of law. The dishonest motive because Mr. Williams paid himself over $23,000.00 in legal fees, in violation N.H. at 303. The Connnittee identified the following aggravating factors: (I) a selfish but not factors and whether such factors should affect the sanction reconnnended. Conner's Case, 158 is suspension, the Connnittee considered the existence of the any aggravating or mitigating Once the Connnittee determined that the baseline sanction for Mr. Williams's misconduct

of suspension as the baseline sanction. their property ...."). Again, the existence of actual injury to the OBA and the public justified use Standards, Sec. II("[m ]embers of the public are entitled to be able to trust lawyers to protect fiduciary obligation to protect the property in which others have a claimed interest. See ABA Williams's actions caused injury to the public, which is entitled to have confidence in a lawyer's the funds from Mr. Williams. The Connnittee also accepted the Hearing Panel's finding that Mr. to the OBA, a finding supported by evidence that the OBA incurred litigation expenses to recoup Connnittee accepted the Hearing Panel's finding that Mr. Williams's actions caused actual injury profession which results from a lawyer's misconduct." Conner's Case, 158 N.H. at 304. The as defined by the ABA Standards, includes"harm to a client, the public, the legal system, or the The third prong speaks to potential or actual injury caused by the misconduct"Injury,"

mental state justified the use of suspension as the baseline sanction. suspension. Accordingly, the Connnittee agreed with the Hearing Panel that Mr. Williams' p. 14 Page 14 of 14

File James C. Wheat, Esquire Sara S. Greene, Disciplinary Counsel Distribution:

to Finis E. Williams, III for violating N.H. Rules of Professional Conduct 1.15(t) and 1.15(g). For all of the above reasons, the Professional Conduct Committee issues a Public Censure

Discipline Office's collection efforts. 37(19)(c). Mr. Williams shall be responsible for any costs incurred as a result of the Attorney legally available post-judgment enforcement remedies and procedures. See Sup. Ct. R. any county in the state, where it shall be docketed as a final judgment and shall be subject to all The Committee may file a copy of the final assessment of costs with the superior court in

37(19)(b). the assessment of costs by petition to the superior court in any county in the state. Sup. Ct. R. disagreement. Sup. Ct. R. 37(19)(b). The Committee may resolve the disagreement, or enforce statement of expenses, listing each disputed expense and explaining the reasons for unless Mr. Williams responds in writing, within thirty (30) days of receipt of the Committee's transcripts, conference calls and outside copying. The assessment of costs shall become final include, but are not limited to: copying and costs associated with the publication of the censure, investigation and enforcement of this disciplinary matter. See Sup. Ct. R. 37(19)(b). Costs can Mr. Williams shall be responsible for the expenses incurred by the Committee in the

(quoting Coddington's Case, 155 N.H. at 68)). profession, and prevent similar conduct in the future." Grew's Case, 156 N.H. at 366 (2007)