James P. Ball (2015)

proceduralrule. disciplineimposedherein is the result of threeviolationsof NewHampshire'ssubstantiveRulesand not the 1The Committeedeterminedthat Mr. BallviolatedSupremeCourtRule 50, aproceduralrule.However,the

trustaccount);and Rule 8.4(a)(violationofthe Rules). accountingoffees); Supreme Court Rule 50 (failureto properly maintain and reconcile client 1.15(failuretomaintainpropertrustaccountingproceduresandfailureto timelydelivera full reasonablyinformedand topromptlycomplywithreasonablerequestsforinformation);Rule This case involves allegationsthat Mr. Ball violated Rule1.4(failure to keep a client

thismatter. 50'as well asreimbursementoftheCommittee for all costsofinvestigationand prosecutionof and to recommenda reprimand for violationofRules 1.4,1.15,8.4(a) and Supreme Court Rule the violations of the New Hampshire Rules ofProfessionalConduct (the "Rules") as stipulated stipulated,by clearandconvincingevidence.The Committeealsounanimouslyvotedtoaccept Having reviewed the Record, the Committee unanimously voted to accept the facts as

Van Oot. Mona T. Movafaghi was absent. Darling,Margaret R. Kerouac, Georges J. Roy, David W. Ruoff, Richard D. Sager and Martha E. Krans, Vice Chair, Elaine Holden, Vice Chair, Peter G. Beeson, Susan R.Chollet,RichardH. CPA (collectively the "Record"). Members present included David M. Rothstein, Chair, Heather of Disciplinary Matter and supporting materials, including the audit reportofCraig A. Calaman, Stipulationas to Facts, Violations and Sanction (the "Stipulation"), the Agreement to Pay Costs On July 21,2015,theProfessionalConduct Committee (the"Committee") deliberatedthe

BallyJames P. advs.AttorneyDisciplineOffice- #13-008

Margaret R. Kerouac BarbaraJ. Guay, LegalAssistant RichardH. Darling* * non attorneymember Susan R. Chollet* Martha Van Oot PeterG. Beeson Richard D. 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

had been paid, he refunded $2,000.00 to Ms. Dennehy through her new attorney. Ms. Dennehy'sdivorce case. Although he had earned fees in excessofthe retainer that Dennehy's new counsel with a detailedexplanationofthe time he hadspentworking on 10. On January 28,2013,prior to receiving the docketing letter, Mr. Ball provided Ms.

9. The ADO docketedthecomplainton January 28,2013.

she hiredanotherattorney torepresenther in the divorce. 8. Ms. Denneheyfiled a grievance with the ADO on January 20,2013. On or near that date,

transferredfrom theclienttrustaccountto theoperatingaccount. receivedcontemporaneousbills showing the work performed or the earned fees accountingof the funds she hadprovidedto Mr. Ball to handle the matter. She had not 7. Ms. Denneheywas concernedabout the lack ofcommunicationand the lack of an

communication with Mr. Ball wasjustbeforeChristmas2012. was not promptlyrespondingto Ms.Dennehy'sinquiriesregarding her case. Her last 6. Initially,the matter proceededsmoothly.However,by mid-November2012,Mr. Ball

paid in two installments, to represent her in the matter. proceedingagainstMichaelDennehy. She providedMr. Ball with a$7,500.00retainer, 5. Mr. Ball was hired by Sarra Dennehy on August7,2012,to represent her in a divorce

2993. from his home, andutilizeda mailing addressofP.O. Box 2993,Concord,NH 03302- 4. At all times material to his representationofthe complainant, Mr. Ball was practicing

2011, throughApril23, 2012. Pleasant Street, Concord, New Hampshire, which wasmaintainedfrom December 29, 3. Mr. Ball opened his own law practice after leaving the Hinckleyfirm,with an office at 58

throughOctober 19,2011. LLP (the"Hinckley firm"),from his dateofadmissiontopracticelaw inNew Hampshire 2. Mr. Ball was employed as anassociatewith the lawfirmofHinckley,Allen and Snyder,

fee in2012, 2013, 2014, and 2015. administrativelysuspendedin thatjurisdictionfor failure to pay theClientSecurityFund on April 14, 2009. He is also licensed as an attorney inConnecticut.He iscurrently 1. James P. Ball is anattorneylicensedtopracticelaw inNew Hampshire. He was admitted

fact by clear andconvincingevidence. Specifically, theCommittee finds: The Committee unanimously voted that the Record supports thestipulatedfindingsof p. 3 Page 3 of8 22. Mr. Ballbreached thatduty when he didnot reliablycommunicate with Ms. Dennehy

statusofher matterand topromptly comply with reasonablerequestsforinformation. 21. Pursuantto Rule 1.4,Mr. Ballhad a duty to keep hisclient reasonablyinformed about the

(4)promptlycomply with reasonable requests forinformation (3) keep theclientreasonablyinformedaboutthestatusofthematter.

(a) A lawyer shall:

20. In pertinentpart,Rule 1.4states:

reference. 19. The findingsoffact set forth inparagraphs1-18above areincorporatedhereinby

Mr. BallviolatedthefollowingRules by clearand convincingevidence,including: The Committee unanimously concludesthat there isclearand convincingevidencethat

complaint. 18. No grievanceshave been filedagainstMr. Ball since Ms.Dennehy filed theinstant

LAP) sinceJanuaryof2013 and has beencomplying with theconditionsoftheirprogram. 17. Mr. Ball hasbeen working with theNew Hampshire Lawyer AssistanceProgram (NH

Francke,PC sinceJanuary2014. 16. Mr. Ball has been an associateattorneywith thefirmofLawson, Persson& Weldon-

manner requiredby Supreme Court Rule 50. 15. Mr. Ball also did notperform monthly reconciliationsofhisclienttrustaccountin the

properly account for the fundsofthree other clients, as set forth in Mr.Calaman'sreport. 14. In additionto his failure toaccountto Ms. Dennehy for her funds, Mr. Ball failed to

13. Mr. Calaman'sreport, with client names redacted, wasincorporatedinto the Stipulation.

12. Craig A. Calaman, CPA, conductedthe audit. HisreportisdatedOctober 29,2013.

response, Mr. Ball agreed to an auditofhis client trustaccountingrecordsby the ADO. 11. Mr. Ballfileda timelyresponseto thecomplainton February28,2013. As partofhis p. 4 Page 4 of8 31. Paragraphs 1-18 above areincorporatedhereinby reference.

violationofRule 1.15. 30. Mr. Ball'saforementionedconduct constitutesclearand convincingevidenceofa

50. failingtocomply with thefinancialrequirementsofNew Hampshire Supreme Court Rule 29. Mr. Ball did not perform monthly reconciliationsofhisclienttrustaccount,thereby

trustaccountingproceduresforthreeotherclients,as setforthin theauditreport. 28. In additionto hisfailuretoaccountto Ms.Dennehy, Mr. Ball didnot maintainproper

contemporaneouslywith earninghis fees. 27. Mr. Ball did not promptlydeliverto Ms.Dennehy a fullaccountingofherclientfunds

regardingsuch property. requestby theclientor thirdperson,shallpromptly rendera fullaccounting otherpropertythattheclientor thirdpersonisentitledtoreceiveand upon client,a lawyer shallpromptly deliverto theclientor thirdperson any funds or statedin this rule orotherwisepermittedby law or byagreement with the interest,a lawyer shallpromptly notifytheclientor thirdperson. Except as (e) Upon receiving funds or other property in which aclientor thirdpersonhas an

Supreme Court Rules and shallcomply with everyotheraspectofthoseRules. client and third party funds as may be required by theNew Hampshire (a) The lawyer shallmaintaintheminimum financial recordswithrespectto the

26. In pertinentpart,Rule 1.15states:

reference. 25. The findings offact set forth in paragraphs1-18above areincorporatedhereinby

violationofRule 1.4. 24. Mr. Ball'saforementionedconductconstitutesclear andconvincingevidenceofa

performed,as requestedby hisclient,untilaftershe hirednew counsel. 23. Mr. Ball breached that duty when he did not provide an itemizedstatementofwork

from mid-November2012 to mid-January2013,when she terminated his representation. p. 5 Page 5 of8

downward departurefrom thebaselinesanctioniswarranted. baselinesanction.Aggravating and mitigatingfactorsthen determine whether an upward or N.H. 613,621 (2007)).The analysisofthe first threefactorsresultsin theestablishmentofa and (d)theexistenceofaggravatingor mitigatingfactors." Id.(quotingDouglas' Case, 156 thelawyer'smental state;(c)thepotentialor actualinjurycaused by thelawyer'smisconduct; four-partanalysisas aframework fordeterminingthepropersanction:"(a)theduty violated;(b) appropriatesanctions. Conner's Case, 158 N.H. 299, 303 (2009). TheStandardsset forth a Association's Standardsfor Imposing Lawyer Sanctions (2005) ("Standards") indetermining Although notformallyadoptedinNew Hampshire,theCourt looksto theAmerican Bar

Richmond's Case, 152 N.H. 155, 159-60(2005). professionand preventsimilarconduct in thefuture.'" Grew's Case, 156 N.H. 361, 365 (2007); 'protectthe public,maintainpublic confidence in the bar,preservetheintegrityofthe legal instructedthat thepurposeofattorneydisciplineis"nottoinflictpunishment,but ratherto Indeterminingtheappropriatesanction, the NewHampshire Supreme Court has

investigationand prosecution. with and accepts therecommended sanctionsofa reprimandand anorderto pay costsof violationsofRules 1.4,1.15and 8.4(a). For thereasonsset forthbelow, theCommittee agrees The Stipulationincludedan agreement on recommended sanctionsbased on the

convincingevidencethat Mr.Ball'sconduct, asdescribedherein,violatedRule 8.4(a). 36. Having found theforegoingviolationsofRules 1.4and 1.15,thereisclearand

violateor attempttoviolatethe RulesofProfessionalConduct." 35. In pertinentpart, Rule 8.4(a) provides: "It isprofessionalmisconductfor a lawyer to: (a)

34. Paragraphs 1-33 above are incorporated herein by reference

violationofNew Hampshire Supreme Court Rule 50. 33. Mr. Ball'saforementionedconductconstitutesclearand convincingevidenceofa

monthly reconciliations to ascertain when it was appropriate to disburse earned fees. 50 in the maintenanceofhis client trust account. For example, he did not perform 32. Mr. Ball did not follow the procedures set forth in New Hampshire Supreme Court Rule p. 6 Page 6 of8

These mitigating factors include: absenceofa prior disciplinary record; lackofa dishonestor Severalmitigatingfactors aredelineatedin theStipulationand acceptedby theCommittee.

Factor IV: Aggravating and MitigatingFactors

for harm tothosethreeclientswas negligible. Stipulation ^ 44. procedures did not harm the other three clients, as described in the audit report, and the potential retainer to the client after she terminated his services. Id. Mr. Ball'snegligent trustaccounting the entire amountofthe retainer that the client paid, yet he refunded a substantialportionofthe informationand anaccountingofher trust account. Stipulation\ 43. Notably,Mr. Ball earned retained new counsel. Id. Similarly, Mr. Ball did not respond promptly to theclient'srequest for divorce case while he was not communicating with her. Stipulation U 42. The client ultimately client because, for arelativelybriefperiodoftime, the client wasunabletoproceedwith her The Committee accepts thischaracterization.Mr. Ball'sconductcausedpotentialinjury to his The StipulationcharacterizesMr. Ball'sconductascausingpotentialinjury or no injury.

lawyer'smisconduct. and which, but forsome interveningfactoror event,would probablyhave resulted fromthe system or theprofessionthatisreasonablyforeseeableat thetime ofthelawyer'smisconduct, minimal or no injury."Potentialinjury"isdefinedas the harm to aclient,thepublic,the legal which results from alawyer'smisconduct.The levelofinjury can range fromseriousinjury to "Injury"isdefinedas the harm to a client, thepublic,the legalsystem,or theprofession

Factor III:Injuryor PotentialInjury

evidencethatMr. Ball'sconduct in thepresentcasewas negligent. Stipulation f 40. The Committee agreesthat theRecord establishesby clearand convincing stipulatedthatMr. Ball'smental statewas negligentwithrespectto allRule violations. lawyerwould exercisein thesituation.In thepresentcase,GeneralCounsel and Mr. Ball thata resultwillfollow,which failureis adeviationfrom the standardofcarethata reasonable conductisdefinedas thefailureofa lawyerto heed asubstantialriskthatcircumstancesexistor negligent,knowing, or intentionalconduct inconnectionwith proven violations."Negligent" Sanctionsvaryunder the Standards dependingon whether theRecord establishes

Factor II:Mental State

funds and fees earned. See Rules 1.4,1.15and 8.4(a);Standards§§ 4.1and 4.4. records and procedures, and (4) his duty to his client to timely deliver a full accountingofclient reasonable requests for information, (3) his duty to his client to maintain proper trust accounting to keep the client reasonably informed, (2) his duty to his client to promptly comply with Mr. Ball violated various duties imposed by the Rules, including: (1) his duty to his client

Factor I: Duties Violated p. 7 Page 7 of8 1.15;8.4(a)and New Hampshire Supreme Court Rule 50. For alloftheabove reasons,theCommittee Reprimands Mr. Ball forviolatingRules 1.4, VI CONCLUSION

responsiblefor allcostsassociatedwith theinvestigationand prosecutionofthismatter. disciplinarymatter. TheCommittee unanimouslyapproves thisagreement. Mr. Ball shall be Mr. Ball has signed an agreement to pay costsoftheinvestigationand prosecutionofthis V. COSTS

consistentwiththe ABA Standardsfor Imposing Lawyer Sanctions. Grew's Case, 156 N.H. 361, 365 (2007)(quotationand citationomitted).The sanctionis also bar, preserve the integrityofthe legal profession, and prevent similarconductin the future." "is not to inflict punishment but rather to protect the public, maintain publicconfidencein the Richmond's Case, 152 N.H. 155, 159-60 (2005). Thepurpose oftheCourt'sdisciplinarypower with thepurposesofattorneydiscipline. See e.g., Conner's Case 158 N.H. 303(2009); costsofinvestigationand prosecution.The Committee's recommended sanctionis inaccord concludesthattheappropriatedisciplinein thismatteris asanctionas well as anorderto pay Having made theaforementionedfindings and rulings, theCommittee unanimously

property and causes injury or potential injury to a client. Reprimand is generally appropriate when a lawyer is negligent in dealing with client

pertinentpart, section 4.1oftheStandardsprovides: theretoimplicatesSection 4.1ofthe Standards relative to thehandlingofclientproperty. In Mr. Ball'sfailure to properlymaintainhis trustaccountand provideinformationrelating

client. reasonable diligence in representing a client and causes injury or potential injury to a Reprimand is generally appropriate when a lawyer is negligent and does not act with

Inpertinentpart,section4.4ofthe Standards provides: section 4.4ofthe Standards, which addresses lackofdiligenceincommunications with a client. Mr. Ball'sfailure to properly and promptly communicate with his client implicates

Rules." Stipulation ^ 40. There were no aggravating factors. during the time period material to this complaint, and did not knowingly fail to comply with the Assistance Program. The Stipulation also revealed that "Mr. Ball was experiencing health issues disclosure to the Attorney Discipline Office; and cooperation with New HampshireLawyer's selfish motive; remorse; a cooperative attitude during disciplinary proceedings and full and free p. 8 Page 8 of8

File James P. Ball.Esquire cc: James F. DeVito, General Counsel

to the NewHampshire Supreme Court. See alsoSupreme Court Rule 37(3)(c). Pursuant to Supreme Court Rule 37A(III)(d)(2)(D)(4)(A),Mr. Ball has the right to appeal VII. RIGHT TO APPEAL