Michael M. Burke (2015)

2. Mr. Burke has nopreviousdisciplinaryhistory.

failuretopay bar dues. October 17,1996. He iscurrentlyon summary suspensioninMaine due to a admittedto practice in1979. Mr. Burke wasadmittedto practice law in Maine on 1. Mr. Burke is an attorney licensed to practice law in New Hampshire. He was

following factual findingsofthe Hearing Panel by clear and convincing evidence: The ProfessionalConduct Committee has determinedthattheRecord supportsthe

Rule violationsas stipulated. facts as stipulated, by clear and convincing evidence. The Committee also voted to accept the Having reviewed the Record, the Professional Conduct Committee voted to accept the thismatter. were absent from the meeting, and Mona T. Movafaghi was not present for the deliberation on and Martha Van Oot. HeatherE. Krans,Vice Chair,PeterG Beeson, and Margaret R. Kerouac Chair, Susan R. Chollet,RichardH. Darling, Georges J. Roy, David W. Ruoff,RichardD. Sager Disciplinary Matter. Members present included David M. Rothstein, Chair, Elaine Holden, Vice Stipulation as to Facts, Violations and Sanction, as well as the Agreement to Pay Costsof On January 20,2015,theProfessionalConduct Committee ("PCC") deliberatedthe

Burke, Michael M. advs.AttorneyDisciplineOffice#11-060

MargaretR. Kerouac Holly B. Fazzino, Administrator Richard H. Darling* * non attorney member Susan R. Chollet* Martha Van Oot PeterG. Beeson RichardD. Sager Elaine Holden,* ViceChair 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

handlingthe closingson dealsbrokered by FRM. In early2003, G & B entered 10. Mr. Burke and Mr. Gould met with Mr.Farah and worked out an arrangementfor

and agreedtorepresentMr. Farah and FRM. afterfurtherdiscussion,he and Mr.Gould eventuallyagreedto become partners thatvolume ofclosings.Mr. Burke had agood dealofrealestateexperienceand brokeredby FRM was quite large, and Mr.Gould was not sure hecouldmanage was retiring.Mr. Gould approachedMr. Burke because thevolume ofloans handlingallofMr. Farah'sresidentialmortgages because hispreviousattorney 9. Mr. Farah had approached Mr. Gould and asked ifhe would be interestedin

12-14%, toborrowersfor various residential andcommercial projects. couldlend money.Lenderswould then lendmoney, usuallyat aninterestrateof individuallenders.These mailingswould identifyspecificdealson which lenders 8. FRM would market to andsolicit privatelendersby sendingmass mailingsto

was itsbrokeringof"hardmoney" deals. portionofFRM's businessthat is mostrelevantto thisdisciplinaryinvestigation traditionalbrokeringservices,utilizinglargelenderssuch as Countrywide,the 7. Mr. Farah was in themortgage brokeringbusiness.Although FRM engaged in

principalofFRM. FRM was locatedinMeredith,New Hampshire. Gould had abusinessopportunityinmind aftermeeting Mr. Farah,theowner and began to havediscussionswith Mr.Gould about merging theirpractices.Mr. 6. In 2002, while Mr. Burke was a solopractitionerinLaconia,New Hampshire, he

lendersin realestateclosings. FinancialResources Management, Inc.("FRM"), as well as hisrepresentationof Burke'srepresentationofScottD. Farah and hismortgage brokeragebusiness, 5. The conduct givingrise to the ruleviolationsreferencedbelow stems from Mr.

Chapter 7 Bankruptcy Trustee. partners at G & B. Mr. Uliasz was serving as attorney for Steven M. Notinger, Burke, Esquire, with regard to theirconductwhen they werepracticingas law referral concerning the conductofMichael E. Gould, Esquire, and Michael M. 4. By letter dated June10,2011,Gregory T. Uliasz,Esquiresubmitteda letterof

Portland,Maine 04116-2906. operated his law office as Law OfficeofMichael Burke, P.O. Box 2906, South 177 Waukewan Street, in Meredith, New Hampshire. Mr. Burke most recently OfficeofGould & Burke, PLLC, ("G & B" or"thefirm")which was located at 3. At all times material to this proceeding, Mr. Burke was a partner at the Law p. 3 Page 3 of18 were paralegals involved in handling a high volumeofreal estate closings. Mr. 16. By the endof2005, G & B employed approximately four staff, twoofwhom

funds were paidby theborrowersatclosing. for Old RepublicNationalTitle InsuranceCompany ("OldRepublic").These commission on thetitleinsurancefeebecauseG & B was a titleinsurance agent fee (usually in the rangeof$250 to $500). The firm would also retain the document preparation fee (usually in the rangeof$500 to $1,000) and a closing these loans, representing the lender-investors at closing. G & B was paid a his brokers to set up settlement statements. G & B served as closing agent for documents, prepare title insurance commitments, and work with Mr. Farah and 15. The firmwould researchtitle,reviewtitleabstractsand reports,draftloan

money loans. responsible for the supervisionofparalegals andstaffas it pertained to private was brokering. G & B agreed to do this work. Again, Mr. Burke was primarily and heasked ifG & B could conducttheclosingsfor theprivatemoney loans he significantly. Mr. Farah wanted to match builders with private money lenders, (or"hardmoney") lending because the subprime loan market had slowed firm did onbehalfofFRM. Mr. Farah began tofocusheavilyon "private money" 14. By the fall of2005, FRM's focusbegan tochange and so did thework that the

assignment. he no longer opened files or "actively handled" each file asifit were his primary paralegals, and review title reports and settlement statements prior to closing, but him tobecome more ofa "troubleshooter."He continuedto supervisethe summer of2005, when he feltthatthestaffhad been sufficientlywell-trainedfor closings, including maintaining thefirm's"TitleExpress"software, until late Farah as theloanbroker.Mr. Burke was activelyinvolvedin all realestate residentialloans using institutional lenders forconsumers at therequestofMr. 13. From 2003 throughthesummer of2005, G & Bcontinuedto close only

transactions. He had primary supervisory responsibility for the paralegals and for all real estate firm andassumed primaryresponsibilityfor the loanclosingsbrokeredby FRM. 12. By the endof2003, Mr. Burke was the "de facto" real estate departmentofthe

tohandlebankruptcymatters. Each attorney also handled his own case load. For example, Mr. Burke continued would supervise real estate closings and Mr. Gould would focus on litigation. 11. Eventually,Mr. Burke and Mr. Gould agreed in general terms that Mr. Burke

operatedinMeredith. into aleaseand relocatedto afloorofthesame buildingout ofwhich FRM p. 4 Page 4 of18

exist. projectwere notrecorded,and as such, the17 condominium unitsdid notlegally propertitlesearchwould have revealedthat thedeclarationand floorplansfor the condominium units. Although thesemortgageswere recordedafterclosing, a respecttotheseloans. Thelender-investorswere providedwith mortgages to 17 closings.Mr. Burke alsoissuedtitleinsuranceas anagentfor OldRepublic with Burke supervisedthework ofG & B'sparalegalswith respecttotheseloan .closingsforprivatemoney constructionloans,most ofwhich closedin2007. Mr. Hampshire ("Chichester"),inwhich G & B representedlender-investorsat 20. The other projectwas the White Birchescondominium projectinChichester,New

approvals, the units did not legally exist). (evenrecordedmortgages would have had nolegaleffect,becausewithoutAG Hampshire AttorneyGeneral'soffice("AG"), and mortgages were never recorded closing.Moreover, Good Earthloanswere closedwithoutapprovalfrom theNew interestinservingas trusteefor theborrower while representinglendersat transaction.As discussedfurtherherein,Mr. Gould had an unwaivable conflictof Earth"transaction.Mr. Burke notarizedsome ofthe loan documents forthis of2006 (the"Trust"),which was theborrowerinwhat the firmcalledthe"Good Burke'spartner,Mr. Gould, servedas trusteeoftheGood EarthRevocable Trust 19. Two real estateprojectsgive rise to thisdisciplinarymatter.In one project,Mr.

availableto ScottFarah forconsultationone hour per day todiscusssuch issues. providegeneral advice to FRM forout-of-statetransactionsand to makehimself 18. Mr. Burke was also paid $500 a week, fromapproximately2007 to 2009, to

B would representthem forpurposesofclosingtheirloans. Firm did send an introductorylettertolender-investorsinformingthem thatG & B was in thepracticeofprimarilycontactingthelendersthroughCLM, though the theloans.CLM's agency agreement allowed it toacton thelendersbehalf.G & loantransactions.CLM, as agent for thelender-investors,hiredG & B to close & B did notrepresentCLM exceptas itpertainedto theclosingofprivatemoney Farah had a decades-long relationship with Mr. Dodge, the principalofCLM. G M, Inc.("CLM"). CLM was the loanservicerfor theprivatemoney loans. Mr. thatMr. Burke and Mr. Gould had anydealingswith Donald Dodge and C, L, and 17. It was only after G & B agreed to undertake thehandlingofprivatemoney loans

mattersrepresentedabout one-halfofG & B'spractice. many as 25 loans per month. At that time,FRM's loanclosingsand related Burke estimatesthatatvariousperiodsduring2005 - 2009, G & B closedas p. 5 Page 5 of18

Republic forpremiums remain in the G & B files. ADO's review ofsuch filesshows thattheoriginalchecks writtenouttoOld Although Mr. Burke is no longer in possessionofany ofthe Good Earth files, the titlesearchwould have been futile; no"units"existedon which to run a search). 26. Title policieswere never issued and no funds wereremittedto OldRepublic(a

and totalcommissions of$6,253.70 fortitleinsurancethatwas never issued. alsoreceiveda totalof$3,399.46inrecordingfees formortgages neverrecorded, approximately $30,500 in total document preparation and closing fees. The Firm 25. From these 31 transactions,thesettlementstatementsshow that G & Bwas paid

for anyofthe 31transactions. loans were not secured by anything. Moreover, no mortgage was ever recorded Declarations or floor plans had been recorded at the timeofclosing. As such, the closing. Mr. Burke also knew or should haveknown that noCondominium Burke knew or shouldhave known that no AGapprovalexistedat thetime of loans closed eventhough no AG approvalexistedat the timeofclosing. Mr. 24. Mr. Burke notarizedsome ofthe loandocuments requiringnotarization.All31

Lender-investorsloaned a totalof$3,899,000.00 to the Good Earth Trust. representingthelender-investors,closed 31 loans for the Good Earth project. overseeingthedraftingofdocuments,draftedallofthe loandocuments for and, 23. Between December 2006 and July 2007, G & B, asclosingagent, with Mr. Gould

imminent,he would resignastrustee. had received approval from theAG's office, which Mr. Gould believed was Gould describedhis role as"merelytitular,"and statedthat assoon as theproject Mr. Burke recallsthat uponspeakingwith Mr.Gould abouthis role astrustee,Mr. borrowerswhile their law firm alsorepresentedlenders in the sametransaction. project. He was thus aware that hispartnerwas serving astrusteefor the borrower because he notarizedsome oftheloan documents forthe Good Earth Gould. Nonetheless,Mr. Burke did know thatMr. Gould was trusteeforthe 22. The paralegalsdoing work on the Good Earthprojectdealtprimarilywith Mr.

October 12,2006. the land the Trust was to develop. The Trustdocuments were executedon theborrower,Mr. Gould, as trustee,executedtheclosingdocuments topurchase borrowersin anyclosingsconductedby G & B. Actingon behalfoftheTrustas Gary Coyne (now deceased). It was the only time Mr. Gould served as trustee for 21. Mr. Gould draftedthe Good Earth Trustdocument fora clientofthefirm named

CLM. CLM, the loan servicer. Payments tolender-investorswere effectuatedsolely by forthin the settlementstatements,and therestofthe loan funds were remittedto document preparation fees, title insurance commissions, and recording fees as set made to lendersunder thetermsofthe loans.Upon closing,G & B retainedits receivedinloanpayments becauseG & B had no involvementwith payments 34. It is unknown how much thelendersin theGood Earthtransactionsultimately

servicing. control over it in makingdisbursements.Further, G & B was notinvolvedin loan closing fees, the net amountofthe loan was held solely by CLM,which exercised loans were"netfunded," meaning that once they closed, and G & Breceivedits 33. G & B had no involvement whatsoever with lender-investors'funds because the

and Donald Dodge, bothofwhom are now in federal prison. 32. Mr. Burke had no knowledge ofthe"Ponzi"scheme perpetratedby Scott Farah

ceased anyrepresentationofMr. Farah, FRM, or lenders. See infra, fl[49-50. Hampshire AG's office seized allofG & B'sfiles and hard drives and the firm theNew Hampshire Banking Department and arepresentativefrom theNew theissueregardingwhat remedialactionstotakebecame moot to theextentthat 31. A few weeks thereafter,Mr. Farah'sfraudulent"Ponzi" scheme came tolight,and

30. Mr. Gould eventuallyresigned as trustee onOctober22, 2009.

possible. thedeficienciesorunwinding thetransactionand making thepartiesas whole as partiesoftheirneed to obtain their own counsel toexploremeans ofcorrecting connectionwith thetransactions.Such a disclosureshould alsohave advised the borrowersand takenremedialsteps todisclosetheconflictMr. Gould had in acteddecisivelyto disclose thedeficienciesin thetransactionsto the lenders and closed, and the AG approval was not forthcoming, headmitsthat he should have any closingstooccurin the absenceofAG approval. Further, once the loans 29. Mr. Burke furtherrecognizesthathe shouldnothave,in the firstinstance,allowed

the Good Earth Trustdue to an unwaivable conflictofinterest. Mr. Gould'spartner,he shouldhave demanded that Mr.Gould resignastrusteeof 28. Nonetheless,the AG approvalsnevermaterialized.Mr. Burke recognizesthatas

were forthcoming. Based onrepresentationsfrom Mr. Farah, Mr. Gould told Mr. Burke that they followedup with Mr. Gould regardingwhether AG approvalwas forthcoming. 27. In the months followingthe lastclosingin theGood Earthproject,Mr. Burke p. 7 Page 7 of18

not legally exist. a propertitle search, which would have revealed that thecondominium units did premiums for title insurance totaling approximately$2,813.00without completing severalcases,as lateas October 2007. G & B receivedcommissions and on March 9,2007, the titleinsurancepoliciesdid notissueuntilmonths later; in "AuthorizedOfficeror LicensedAgent." While themajorityofthe loansclosed policies in connection with the transactions. Mr. Burke signed the policies as the 41. G & B was also an agentofOld Republicauthorizedto issue titleinsurance

determinationofthedeficienciesintitle. Further,severalofthemortgages were assignedtonew lender-investorswithouta there wereseniormortgages, from prior owners,which had not beendischarged. was provided with a recorded mortgage for "Unit1." It was later determined that was not in fact a first mortgage. For example, one investor loaned $49,000 and with respect to some transactions. In at least one case, a purported first mortgage 40. A review ofG & B'sfiles on theChichesterprojectrevealsotherdeficiencies

$1,702.27inrecordingfees for thedefectivetransactions. preparation and closing costs. G & B also collected a totalofapproximately totalofapproximately$21,110.00for legal feesassociatedwithdocument 39. The settlementstatementsfor the 30transactionsreflectthatG & B was paida

for each unit despite the legal defects in title. approximately $1,149,000.00 to the Chichester project. Mortgages were recorded closing.Ultimately,approximatelysixteenlender-investorsloaned a totalof 38. G & B draftedallofthe loandocuments and representedthelender-investorsat

record. As such, the17 condominium units didnot legallyexist. Also, G & B failed torecognizethat thecondominium floor plans were not on condominium declarationhad not beenrecordedas requiredby RSA 356-B:7. 37. At the time oftheclosingsfor theChichestercondominium project,the

The majorityofthe loans closed on March 9, 2007. includingloanassignmentsand loanmodifications,for theChichesterproject. Burke overseeingthe closings, drafted thedocuments for and closed 30 loans, 36. Between March 9,2007 and May 1,2009,G & B, as closing agent, with Mr.

2007, G & B acted as the attorneys for thelender-investorson this project. CertificationofRegistration was issued the same day. Beginning in February project known as "The White BirchesofChichester, a Condominium." A 35. On October 13, 2005, the AGconditionallyapprovedregistrationof17 units for a

Gould and Mr. Burke told Mr. Farah that the firm could nolongerrepresentFRM scheme. Upon learning that FRM and CLM hadengaged incriminalactivity, Mr. FRM was "outofmoney" and that he and Mr. Dodge hadperpetrateda Ponzi 48. On November 5,2009, Mr. Farah confessed to Mr. Gould and Mr. Burke that

The Collapse ofFRM and CLM and theAftermath

participationin ascheme todefraudinvestors. for those loans, do not contain any"redflags" orirregularitiesindicativeof for the Good Earth andChichesterprojects, and the filesmaintainedby the firm 47. Although defectivefor the reasonsdiscussedherein, the loans closed by G & B

insure that hisparalegals'work was accurate. mortgagesand also prior to issuing the titleinsurance,and he did not take steps to sufficientto allow the creationofa lienable interest,priortorecordingthe known that thenecessarydocumentationwas notrecordedin theRegistry closedand recordedwith thedeficiencyoftitlepresent.Mr. Burke shouldhave mortgages,with inadequatesupervisionfrom him. As aresult,the loans were work on theChichesterproject, including closing the loans andrecordingthe 46. Mr. Burke alsoknowingly allowedhisparalegalstocompletethemajorityofthe

properlyattaching. deficienciesin title which prevented thelender-investors'securityinterestfrom 45. Mr. Burke'sconduct was negligentinthathe shouldhave known ofthe

thatdid not legallyexist. 44. Mr. Burke allowedmortgagesto berecordedin theRegistryofDeeds forunits

recordedpriortoclosingthe loans for theproject. & B did not verifythatthecondominium declarationand floorplanswere Merrimack County RegistryofDeeds. Mr. Burke was alsonegligentbecauseG failed torecognizethatthenecessarydocumentationwas not recordedin the Burke was negligentin that,althoughtitlesearcheswere performed,Mr. Burke documentationwas recordedin theMerrimack County RegistryofDeeds. Mr. that thecondominium was properlycreatedand approved and that thenecessary 43. At the time G & B closed the Chichester loans, it was Mr.Burke'sunderstanding

Payments to thelender-investorswere effectuatedby the loanservicer,CLM. over making disbursements.G & B was notinvolvedin the loanservicing. statements,the netamount ofthe loan washeldby CLM, which exercisedcontrol preparationfees, and title insurancecommission as set forth in thesettlement meaning that once the loan closed, and G & Bretainedits legal fees,document 42. Like those in the Good Earth project, theChichesterloans were"netfunded," p. 9 Page 9 of18 In May 2013,Mr. Burke, after havingattemptedtoreconcilethe G&B real estate 55. As ofMay 2014,there remained some funds inG&B's real estate trustaccount.

were made partofthebankruptcyestate in anattemptto satisfycreditorsofCLM. the Bankruptcy Court dated February17,2010. The funds, totaling $53,209.64, that to theirknowledge related toFRM/CLM, pursuantto a"turnover"orderof 54. Mr. Burke and Mr. Gould turnedover allfunds intheirrealestatetrustaccount

Mr. Burke or hisfirm. None ofthematterswent to trial. forcreditors'claims.There are nocurrentlypending malpracticeclaimsagainst mediatedsettlements.The remaining$400,000 stayedin thebankruptcyestate $1.6millionoftheir total $2 million inmalpracticecoverageto use for the counsel,negotiatedwith the attorney for theTrusteeinBankruptcyto carve out late spring or early summerof2011. Mr. Burke and Mr. Gould,throughtheir 53. Approximately 73 ofthose matters were settled in an omnibus mediation in the

negligentand fraudulentmisrepresentation. Chichestertransactions.Mr. Burke was sued for legalmalpractice,as well as Lawsuits anddeclaratoryjudgment actions were alsobroughtwithrespectto the agents. Manyofthese lawsuits were related to the Good Earth transactions. investors in approximately 75 separate matters arising outoftheir work as closing 52. Mr. Burke and Mr.Gould, and G&B, were also sued formalpracticeby lender-

and ahalfand fifteen year terms in federalprison. any crime.Donald Dodge and Scott Farah arecurrentlyserving,respectively,six conducted an investigation. Neither Mr. Gould nor Mr. Burke was charged with became the subjectsofa criminalinvestigationby the USAO. The USAO 51. Mr. Burke, along with Mr. Gould, retained criminal defense counsel, as they

theirfilesexceptthroughcounsel. G&B's files in storage. Mr. Gould and Mr. Burke were notallowed accessto Office (USAO), the AG, and the Chapter 7BankruptcyTrusteeto place allof Thereafter,Mr. Gould and Mr.Burke'scounselagreedwith the U.S.Attorney's 50. FRM and CLM went intoinvoluntarybankruptcyon November 20,2009.

officesand seizedallofthe contentsofFRM and CLM. AG's office, as well as other lawenforcementofficials,appearedat the FRM 49. On November 9, 2009,representativesfrom theBanking Department and the

Department. General'soffice andrepresentativesfrom the NewHampshire Banking Banking Commission and, working together, they madecontactwith the Attorney alsoreachedout toFRM's lawyer whorepresentedthecompany before the and thatMr. Farah needed a criminaldefenseattorney.Mr. Gould and Mr. Burke p. 10 Page 10 of18

ofthelender-investors. 60. Mr. Burke had a duty to act with reasonablepromptnessand diligenceon behalf

undertaken with no avoidableharm to hisclients. properpreparation,and attentionto detailsnecessaryto assurematterswere representation,includingperformanceofthetechniquesofpracticewith skill, 59. Mr. Burke owed a duty to thelender-investorstoprovidecompetent

clearand convincingevidence: evidencethatMichael M. Burke has violatedthefollowingRules ofProfessionalConduct by The ProfessionalConduct Committee concludesthatthereisclearand convincing

Stipulationatffl[1-58.

ADO's attentionviatheTrusteeinBankruptcy. submittedgrievancesto the ADO. As noted above,thismattercame to the 58. No clientofG&B, nor any party to anyoftheclosingsconductedby G&B,

cooperative. 57. Throughout theADO's investigation,Mr. Burke has been forthcomingand

17,2010. Mr. Burke agreedwith thiscourseofaction. Bankruptcy pursuantto theBankruptcy Court'sturnoverOrder datedFebruary voluntarilyturned over the entire amount,$25,470.08,to theTrusteein toloansclosedon behalfofCLM. For thatreason,on May 27,2014, Mr. Gould and lackeddocumentationto prove, that theremaining$20,999.03was unrelated Earthtransactions.Mr. Burke and Mr.Gould could not determinewith certainty, insurancepremiums forunissuedtitleinsurancepoliciesrelatingto theGood appearedthatapproximately$4,471.05in the trustaccountrepresentedtitle 56. Based on correspondencefrom Mr. Burke to the ADO,receivedin May 2014, it

nextyear. into anaccountin his name, where it remaineduntouchedand safeguardedfor the appropriatefurther actions. Mr. Goulddepositedthe totalamount of$25,470.08 hisclients,and authorizingMr. Gould towork with the ADO to determinethe balance,requestingthatMr. Gould determinehow much ofthosefunds relatedto trustaccount,closedthe account and wrote a check to Mr. Gould fortheentire p. 11 Page 11of18

65. Mr. Burke breached thatduty:

forinformation.N.H. R. Prof.Cond. 1.4(a). aboutthestatusoftheirmatters and topromptlycomply with reasonablerequests 64. Mr. Burke owed the lender-investors a duty to keep them reasonably informed

violationofRules 1.1 and 1.3. 63. Mr. Burke'sconduct,as aforesaid,constitutesclearand convincingevidenceofa

thatdid not legallyexist. C. Recording or allowing mortgages to be recorded for condominium units toassessany deficienciesin title; and B. Failingtoadequatelyconductorreviewa competent titlesearchinorder development; recordpriortoclosingconstructionloans for thecondominium A. Failingto verify that the necessarydeclarationand floor plans were on

investorsintheChichestertransactions,by: 62. Mr. Burke failed toprovidecompetentand diligentrepresentationtolender-

Gould resign as trustee to take remedial steps to avoid harm to his clients. attorneyfor the lenders atclosing,and failingthereaftertorequirethatMr. bothtrusteefor theborrowers(in anycapacity,"nominal" or not) and as his partner Mr. Gould had an unwaivable conflictofinterest in serving as F. Failing to appreciate, from the outsetofthe Good Earthtransactions,that effectivemanner; and E. Failing to undertake actions on thelender-investors'behalfin a timely and Earth transactionsavoided harm to theclients'interests; D. Failing to attend to details and schedulesnecessaryto assure that the Good even where such failure was notpurposeful; and no recorded mortgages for, in some cases,overtwo and ahalfyears, C. Allowing the Good Earthtransactionstolanguishwith no AG approval B. Failing to record any mortgages for the31 Good Earth transactions; Attorney General being recorded with the county registryofdeeds; absenceofany approvals for thecondominium developmentfrom the and floor plans being recorded with the county registryofdeeds and in the A. Allowing all 31 transactions to close in the absenceofany declarations

investorsinthe Good Earth transactions,by: 61. Mr. Burke failed to providecompetentand diligentrepresentationto the lender- p. 12 Page 12 of18

transactions. borrower inGood Earthwhile the firmrepresentedthelendersin thesame setof 69. Mr. Burke breachedthose duties when his lawpartnerservedastrusteefor the

such representationwould be directly adverse toanotherclient. 68. Mr. Burke owed a duty to thelender-investorclientstonot representthem where

limitedby Mr. Burke'sresponsibilitiestoanotherclient. significantrisk that Mr.Burke'srepresentationofthem would be materially transactions,not torepresentthem under suchcircumstancesas toproduce a 67. Mr. Burke owed a duty to hisclients,thelender-investorsin the GoodEarth

violationofRule 1.4. 66. Under the foregoingcircumstances,there is clear andconvincingevidenceofa legaldeficienciesin title. lender-investors,thatthe loanscould not be closedbecause therewere B. In the Chichestertransactions,by failing to informG&B's clients, the

A. In the Good Earthtransactions,by: p. 13 Page 13 of18

B. In the Chichestertransactions,by:

A. In the Good Earthtransactions,by:

75. Mr. Burke breached hisdutiesunder Rule 5.3:

superviseallnon-lawyersat his firm. professional obligationsofMr. Burke. In short, he had a duty to adequately effortstoensurethatthesenon-lawyers'conduct was compatiblewith the authorityover theparalegalsand legalassistantsin the firm, to makereasonable 74. Mr. Burke had aduty under Rule 5.3, as alawyer with directsupervisory

non-lawyerstaffwas compatiblewith Mr.Burke'sprofessionalobligations. firm had in effectmeasuresgiving reasonableassurancethat theconductofits 73. Mr. Burke had a duty under Rule 5.3 to makereasonableeffortsto ensure that his

72. Mr. Burke was thesupervisorofthefirm'srealestatedepartment.

Rule 5.3:ResponsibilitiesRegarding Nonlawver Assistants

a violationofRule ofProfessionalConduct 1.7. 71. Mr. Burke'saforementionedconductconstitutesclearand convincingevidenceof

Trust,and CLM. an adverserelationshipdeveloped between andamong G&B, the Good Earth 70. Mr. Burke breachedthese dutiesbecauseonce mortgages remained unrecorded, p. 14 Page 14 of18

confidencein the bar,preservetheintegrityofthe legalprofession,and preventsimilarconduct The purposeoftheCourt'sdisciplinarypower "is toprotectthe public,maintainpublic

Mr. Burke'sconduct violatedRule ofProfessionalConduct 8.4(a). 80. Having found the foregoing violations, there is clear andconvincingevidence that

ofRule ofProfessionalConduct 8.4(c). 79. Under thesecircumstances,thereisclearand convincingevidenceofa violation

serviceto theborrowers. insurancenever issued,and failing toreturnthe feesassociatedwith this recordingofmortgages,thatmortgageswere not in factrecordedand title C. Failingtodisclosetoborrowers,who had paidfees for titleinsuranceand B. Failingtocorrectthismisrepresentationin theyearsthatfollowed;and in theabsenceofany communication from Mr. Burke statingotherwise; as alllendersreasonablyassumed theirloans weresecuredby something loanswere unsecured.Such failureconstituteda misrepresentationinsofar received, the mortgages could not attach to any interest, and thustheir transactionstoclose,thematerialfactthatno AG approvalshad been loans, failing todisclosetolender-investors,beforeallowingthe A. Although he kept thelenders'agent, CLM,informedas to the statusofthe

78. Mr. Burke violatedRule 8.4(c), as to the GoodEarthtransactions,by:

misrepresentation. (c) engage in conduct involving dishonesty, fraud, deceit or It isprofessionalmisconduct for alawyerto:

77. Rule 8.4(c)statesas follows:

ofRule ofProfessionalConduct 5.3. 76. Under thesecircumstances,there is clear andconvincingevidenceofa violation

insurancewithoutreceivingthebenefitoftheir bargain. Mr.Burke stipulatedand theCommittee between $734.66 -$1,404.66for closingcosts,document preparation,recordingfees and title unsecured and who closed on those loans without accurateinformation,and who each paid clients, who likely would not have invested in the Good Earth project, whose loans were Mr. Burke stipulated, and the Committee concluded that he caused actual injury to

Prong III:Injuryor PotentialInjury

transaction. knowing with respect to the Good Earth transaction and negligent with respect to the Chichester Mr. Burke stipulated, and the Committee concluded that Mr.Burke'smental state was

Prong II:Mental State:Intent/Knowing or Negligent

misrepresentation. See Standards §§ 4.3, 4.4, 4.6 and 7.0. properly supervise the non-lawyer assistants in his firm; and engaged in conduct involving competence, diligence and avoidanceofconflictsofinterest owed to his clients; failed to Mr. Burkestipulated,and theCommittee concluded that heviolatedthe dutiesof

Prong I:Duty Violated determining the baseline sanction. See Conner'sCase, 158 N.H. at 303. The first three steps create a framework for characterizing the misconduct and Standards, §3.0. aggravating or mitigating factors. " Id. (quoting Douglas'Case, 155 N.H. 613,621 (2007); (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existenceof imposingsanctionsfor lawyermisconduct:"(a) the dutyviolated;(b) the lawyer's mental state; Conner'sCase, 158 N.H. at 303. The Standards set forth a four part analysis to be considered in circumstances." The Court has not adopted the Standards, but it does look to them for guidance. the purposeof lawyer discipline, and may take into account aggravating or mitigating case"shoulddependupon thefactsandcircumstancesof the case, shouldbefashionedin light of StandardsforImposingLawyer Sanctions statethat thedisciplineto beimposedin aparticular in thefuture." Conner's Case, 158 N.H. 299, 303 (2009). TheAmerican Bar Association's p. 16 Page 16 of18

many malpracticeactionsbroughtagainsthim. and 2014. Inaddition,he hasincurredotherpenaltiesand sanctionsthrough the defenseofthe by turningover substantialmonies relatedto FRM/CRM to theTrusteein Bankruptcy in 2010 In addition,Mr. Burke has made a good faithefforttorectifytheconsequences ofhismisconduct a cooperativeattitudeduring disciplinaryproceedingsand fulland freedisclosureto theADO. severalmitigatingfactors,includingan absenceofa priordisciplinaryrecord, remorse, as well as practiceoflaw, hismultipleoffenses,and aselfishmotive. See Standards §9.22. There are also In this case, there are threeaggravatingfactors: Mr.Burke'ssubstantialexperiencein the

Prong IV: Aggravating and MitigatingFactors

baselinesanctionfor Mr.Burke'sconduct issuspension. Mr. Burke stipulatedand theCommittee concludedthatunder thesecircumstances,the knowingly deceivesa client,and causesactualor potentialinjuryto theclient. which providesinpertinentpartthatsuspensionisgenerallyappropriatewhen a lawyer Finally,Mr. Burke'sviolationofRule 8.4(c)implicatesSection4.62 ofthe Standards, potentialinjury to aclient,thepublic,or the legalsystem. engages inconductthat is aviolationofa duty owed as aprofessionaland causesinjury or the Standards providesthatsuspensionis generallyappropriatewhen a lawyerknowingly Mr. Burke'sviolationofRule 5.3 implicates Section 7.0ofthe Standards. Section7.2of injury to aclient. not fullydiscloseto aclientthepossibleeffectofthatconflict,and causesinjuryor potential thatsuspensionisgenerallyappropriatewhen a lawyer knowsofa conflictofinterestand does His violationofRule 1.7 implicates Section 4.3ofthe Standards. Section4.32provides (b) a lawyer engages in a patternofneglect and causes injury or potential injury to a client. knowingly fails to perform services for a client and causes injury or potential injury to a client, or Section4.42providesinpertinentpart thatsuspensionisgenerallyappropriatewhen (a) alawyer Mr. Burke'sviolationsofRules 1.1,1.3and 1.4implicateSection4.4ofthe Standards. insurancewithoutreceivingthebenefitoftheirbargain. between $1,231.50-$1,782.41forclosingcosts,document preparation,recordingfeesand title concluded that he caused actual injury to his clients in theChichestermatter, who each paid p. 17 Page 17 of18

1.4; 1.7; 5.3;8.4(a)and 8.4(c). month Suspension from thePracticeofLaw for violatingRules ofProfessionalConduct 1.1; 1.3; For allofthe above reasons,the ProfessionalConduct Committee Recommends an 18

investigationand prosecutionofthismatter. The Committee acceptsMr. Burke'sAgreement to PayCosts with regardto the

(2007)(quotationand citationomitted). legalprofession,and preventsimilarconduct in thefuture." Grew's Case, 156 N.H. 361, 365 rather toprotectthe public,maintainpublicconfidencein the bar,preservetheintegrityofthe ^'Standards'"). The purpose oftheCourt'sdisciplinarypower "isnot toinflictpunishment but sanctionis also inaccord with the ABA Standardsfor Imposing Lawyer Sanctions (2005) See e.g., Conner's Case 158 N.H. at 303; Richmond's Case, 152 N.H. 155, 159-60 (2005). This The Committee's recommended sanctionis inaccordwith thepurposes ofattorneydiscipline. Committee concludesthat theappropriatedisciplinein thismatteris an18-month suspension. Having made theaforementionedfindings and rulings, theProfessionalConduct

sanction. Committee concluded that an18 month suspensionfrom thepracticeoflaw is anappropriate departurefrom thebaselinesanctionofsuspensionwarranted. Mr. Burkestipulated,and the mitigatingfactors,combined with thebaselinesanctionanalysis,no upward or downward Mr. Burkestipulated,and theCommittee concludedthat given theaggravatingand p. 18 Page 18 of18

File Michael M. Burke,Esquire Elizabeth M. Murphy, Assistant Disciplinary Counsel cc: Sara S. Greene, DisciplinaryCounsel