Gabriel Nizetic (2017)

Lawyer Sanctions (2005) ("Standards"). 60 (2005). Thesanctionis also inaccordwith the ABA Standards forImposing Conner's Case 158 N.H. 299, 303 (2009); Richmond's Caset 152 N.H. 155, 159sanctionisin accord with the purposes ofattorneydiscipline. See e.g., The Committee alsoconcluded thata publiccensure isappropriate.This

ProfessionalConduct 3.1 and 8.4(a),as stipulated. evidence. Itfurtherfound thatGabriel Nizetic'sconduct violatedRules of The Committee approved the factsas stipulatedby clearand convincing

McGrath were absent. David M. Rothstein,Chair,was recused. Martha Van Oot. Richard H. Darling;Margaret R. Kerouac; and David W. Susan R. Chollet;Caroline K. Leonard; Mona T. Movafaghi; Georges J.Roy; and Heather E. Krans, Vice Chair;Elaine Holden, Vice Chair; PeterG. Beeson; DisciplinaryMatter (attachedas ExhibitB). Members presentincluded ("theStipulation,"attachedas ExhibitA), and theAgreement to Pay Costs of Committee") deliberatedthe Stipulationas to Facts,Violationsand Sanction On March 21, 2017, the ProfessionalConduct Committee ("the

Nizetic,Gabriel advs. Attorney DisciplineOffice - # 16-026

Margaret R.Kerouac Barbara J. Guay, LegalAssistant Richard H. Darling* * nonattorneymember Susan R. Chollet* Martha Van Oot PeterG. Beeson Georges J. Roy* Elaine Holden,* Vice Chair 603-224-5828 ♦ Fax 228-9511 Mona T. Movafaghi Heather E. Krans, Vice Chair Concord, New Hampshire03301 David W. McGrath David M. Rothstein,Chair 4 Chenell Drive,Suite 102 CarolineK. Leonard

File Richard Y. Uchida, Esquire cc: Sara S. Greene, DisciplinaryCounsel

investigationand prosecutionof thismatter. agreement thatMr. Nizeticshallreimburse the Committee for allcostsof Having approved the stipulatedsanction,the Committee approved the defendant,Mr. Tatro.

p. 3 New Hampshire PublicDefender's("PD")office,representedthe

Docket #469-2014-cr-02081. Rebecca McKinnon, an attorneywith the

Circuit-DistrictDivision-Plymouth(the "Court"), State vs.Daniel Tatro,

4. Mr. Nizeticrepresentedthe State in a criminal casependingin the2nd

Plymouth Law Center, 66 Highland St, Plymouth,New Hampshire.

3. At all times materialto thisproceeding,Mr. Nizeticpracticedlaw at

statusthereis"retired."

was admitted in Massachusetts on June 15, 1988, and hiscurrent

2. Mr. Nizetichas alsobeen admitted to practicelaw in Massachusetts. He

Hampshire. Mr. Nizeticwas admitted to practicein 1989.

1. Gabriel Nizetic,Esq.,isan attorneylicensedto practicelaw in New

(ADO) stipulateas follows:

Respondent Gabriel Nizetic,Esq.,and the Attorney DisciplineOffice

p. 4 from the Court indicatingthatthehearingon the motion to impose

9. On or about February 3,2016, Mr. Nizeticreceiveda schedulingnotice

mattershad infactbeen consolidated.

confusionlaterarose,includingon the Court'spart,about whether the

readyfor trial inthismatter.''As explainedfurtherherein,however,

you're ordered to appear back in this court on March25that 1 and be

the affirmative,followingwhich the Court issuedan order:"Mr.Tatro,

work for everyone?" Both Mr.Nizeticand Ms. McKinnon responded in

ultimatelyconsolidatedboth hearings,stating,"[d]oesMarch 25 at1

8. After brieflydiscussingMr. Tatro'stwo matterswith counsel,the court

willfulconcealment trialfor March 25, 2016.

time,themotion hearingwas scheduled forFebruary 10, 2016, and the

a suspended sentencein aseparatematterinvolvingMr. Tatro. At the

concealment charge),as wellas a hearingon a pending motion to impose

and the Court discussedthe trialschedule in Mr. Tatro'smatter(awillful

on January 14, 2016 (the"TMC"). At theTMC, counsel fortheparties

7. The partiesappeared for atrialmanagement conferencewith the Court

6. Mr. Nizetichas no disciplinaryhistory.

2016.

Nizetic'smatterwas referredto DisciplinaryCounsel on October 24,

justice,the Honorable Thomas A. Rappa, Jr.,on July7, 2016. Mr.

5. This disciplinarymatterwas initiatedby referralfrom thepresiding contactMs. McKinnon afterreceivingthe clerk'sresponse to hisinquiry

p. 5 12. Ms. McKinnon was not copied on eitheremail. Mr. Nizeticdid not

9:00 am."

indicatingthat"thecomputer is stillshowing itscheduled for2/10 at

correct?''Three days later,on February8,2016, the clerkresponded,

rescheduledand consolidatedwith histrialon March 25. Isshe

for ahearingon 10 FEB @ 0900. Atty. McKinnon isclaimingithas been

follows:"Jen. My schedulingnoticeindicatesthismatterisscheduled

11. On thefollowingday, Mr. Nizeticsentan email to the clerkofcourt,as

rescheduledfor the same time as hisMarch trial.''

a continuanceofthe Feb. 10 motion hearing. The courthad already

Nizeticagain,as follows:"Pleasedisregardmy previousemail regarding

and before Mr. Nizetichad the opportunityto respond, she emailed Mr.

grantedattheTMC on January 14. Lateron the same day, however,

2016 trial.Her requestmirrored the reliefthatthe Court had already

the February 10 hearingon the motion to impose with the March 25,

forhispositionon a motion to continuewhich proposed to consolidate

10. On February 4, 2016, Ms. McKinnon sentan email to Mr. Nizeticasking

2016 TMC consolidationdecision.

nor had the Court ever sentout an orderevidencingitsJanuary 14,

Court had consolidatedthathearingwith the March 25 trialattheTMC,

besidestheTatro hearingon January 14, had no recollectionthatthe

receivedthe notice,Mr. Nizetic,who had handled 23 otherhearings p. 6 17. Specifically,Mr. Nizeticstated:

March.

motion hearinghad been rescheduledforthe same day as thetrialin

a continuance;i.e.,because she was under the impression thatthe

however,disclose the reason thatMs. McKinnon withdrew her requestfor

then withdrawingtherequeston the same day. Mr. Nizetic didnot,

Ms. McKinnon's emails ofFebruary 4 requestinga possiblecontinuance

16. At the hearingon February 10,2016, Mr. Nizetictoldthe Court about

January 14,2016 consolidationorderfrom the bench.

had not been removed from the Court'sdocket,despiteJudge Rappa's

15. Likewise,through accidentor mistake on the Court'spart,the hearing

evidenced by her second email sentto him on February 4, 2016.

McKinnon believedthatthe hearingwas continued to March 25, as

resultwas understandable,given thatMr. Nizeticknew thatMs.

14. NeitherMs. McKinnon nor her clientappeared for the hearing. This

proceed.

impose hearing,believingin good faiththatthehearingwas going to

trial.In fact,Mr. Nizeticspenttime preparinga witnessforthe motion to

Court had consolidatedthe motion to impose hearingwith the March 25

February 10, 2016. At the time, Mr. Nizetichad no recollectionthatthe

13. Mr. Nizeticappeared for the hearingatthe Court at9:00 a.m. on

docket or to correcther apparentmisunderstanding.

to notifyher thatthe Court stillhad the hearingon itsFebruary 10, 2016 p. 7 [TMC] hearing." Believingthather failureto appear was a

which was alsoconsistentwith my memory ofwhat was saidatthe

sayingthatithad been moved to 3/25 at1 pm. with the othercase,

requestfor acontinuanceupon reviewof a "note [in herfile]on the notice

i.e.continued to March 25. She alsoexplainedthatshe withdrew her

Court had ordered that"both caseswould be put on forthe same date,"

wrote to Mr.Nizetic,confirming her recollectionthatattheTMC, the

gone forward withthe9:00 a.m. motionhearingthatday, Ms. McKinnon

19. Laterinthe day on February 10,2016, afterlearningthatthe Court had

consolidatedthe motion hearingwith the March 2016 trial.

atthe time ofthe February 10 hearingthatithad previously

the bench warrant). Unfortunately,the Court, too,had no recollection

arrestwarrantforthe Defendant Mr. Tatro (Mr. Nizeticdid not request

Mr. Nizetic'srequest. In addition,the Court, sua sponte,issuedan

why she should not be found in contempt. The Court (J.Rappa) granted

18. Mr. NizeticrequestedthatMs. McKinnon be summoned to show cause

hearingthatwas duly scheduled. gettingpaid overtime by thepolicedepartment to attendthis thepolicedepartment. OfficerCody's here on hisday off, knew, the matterwas stillon for trial.Accordingly, (I)notified been received,nothing had been rescheduled. As faras they day beforeyesterday,the Court indicatedthatno motion had At thattime,I double checked with the Court and as ofthe

disregardthepreviousemail regardingthe continuance (sic). atthelastminute, withinjusta few hours afterward,said requestinga continuanceofthisparticularhearing. And then an email and before I had a chance to respond to it, Your Honor, as recentlyas February 4th,hiscounsel sentme p. 8 10,despiteMs. McKinnon's understandingtothe contrary.He has

learningthatthe Court had themotion hearingscheduled on February

"probablyshould have double-checkedwith her (Ms. McKinnon)" after

also acknowledged inthe March 25 hearingbeforeJudge Rappa thathe

22. Mr. Nizeticregretsdeeplyhisconduct atthe February 10 hearing. He

impose anysanctionotherthan to make ajudicialreferraltotheADO.

her obvious confusion over theissue.The Court decided itcould not

continued to March 25, 2016 and he should have alertedthe Court to

under theimpression thatthe February 10,2016 hearinghad been

2016, the Court found thatMr. Nizeticknew thatMs. McKinnon was

the Court issuedan orderon June 21, 2016. In itsorderofJune 21,

on February 19, 2016. Her motion was heard on March 25, 2016, and

21. Ms. McKinnon thereafterfileda motion for sanctionsagainstMr. Nizetic

Court.

assentto the motion to vacatebecause ithad alreadybeen filedwith the

assentto the motion to vacate. In part,he has noted thathe did not

responded to her requestregardinghisposition,however, and did not

filedthe motion. Itwas grantedthe same day. Mr. Nizeticnonetheless

receiving,Mr. Nizetic'spositionon the motion to vacate,Ms. McKinnon

20. Within halfan hour ofsending her email askingfor,but notyet

Mr. Nizeticforhispositionon a motion to vacate the bench warrant.

misunderstanding butfailedto so inform the Court, Ms. McKinnon asked

misunderstanding,and knowing thatMr. Nizeticwas aware ofher every element ofthecase be established. p. 9 neverthelessso defend theproceeding as to requirethat could resultin incarcerationor institutionalization,may criminalproceeding,or the respondentin a proceeding that reversalofexistinglaw. A lawyer forthe defendant in a good faithargument foran extension,modificationor and factfordoing so thatisnot frivolous,which includesa controvertan issuetherein,unlessthereisa basisinlaw A lawyer shallnot bringor defend a proceeding,or assertor

25. Rule 3.1 statesas follows:

24. The factssetforthat1H 1-22 above are incorporatedby reference.

Rule 3.1:MeritoriousClaims and Contentions

follows:

violationsofthe New Hampshire Rules of ProfessionalConduct, as

23. The partiesagree thatMr. Nizetic'sconduct in thiscase involves

about the consolidationto affecthisrequestfor reliefbefore a Court.

unprofessionaland improper to allow thisdistrustand any confusion

consolidated,combined to cloud hisjudgment. He acknowledges itwas

hislackofany recollectionthatthe hearingand the March trialhad been

scheduled to be heard and confirmationofthe same by the Court, and

beliefon February 10, 2016 thatthemotion to impose hearingwas still

dealingswith the PD's office.This distrust,along with hisgood faith

Office, adistrustbased on what he describesas severalunpleasantpast

believeshe actedhastilyand in a spiritof suspiciontowards the PD's

acknowledged hismisconduct to theADO. In hindsight,Mr. Nizetic p. 10 8

guidance. Conner'sCase, 15 p. 10 8 N.H. at 303. The Standards setforth a

31. Although the Courthas not adopted the Standards, it looks tothem for

(2005).

the severity ofthemisconduct." Coffey'sCase, 152 N.H. 503, 513

Case, 15 p. 10 8 N.H. 299, 303 (2009). "Thesanction...musttakeintoaccount

legalprofession,and preventingsimilarconduct in thefuture." Conner's

maintainingpublic confidence in the bar, preserving the integrity of the

30. The purposeof the Court's disciplinary power is "protecting the public,

ImposingLawyer Sanctions (2005) ("Standards") supportthissanction.

29. Both case law and theAmerican Bar Association's Standards for

serve the purposes ofattorneydiscipline.

censure isthe appropriatesanctionin thismatter. This sanctionwould

2 p. 10 8. The AttorneyDisciplineOfficeand Mr. Nizeticjointlyagree thata public

Prof.Conduct p. 10 8.4(a).

evidence thatMr. Nizetic'sconduct, as describedherein,violatedN.H. R.

27. Having found theforegoingviolation,thereisclearand convincing

25 willfulconcealment trial.

beliefthatthe motion to impose had been consolidatedwith the March

no basisin law or fact,given hisknowledge of Ms. McKinnon's stated

Ms. McKinnon regardingher failureto appear on February 10 which had

26. Mr. NizeticviolatedRule 3.1 when he requesteda show cause hearingfor impressionwhen explaininghow he had confirmedhisown

p. 11 with the March trial,but did not elaborateupon hisknowledge of that

under theimpressionthatthemotion hearinghad been consolidated

knowing. That is, Mr.Nizeticknew thatMs. McKinnon was laboring

sanctionanalysis,the partiesagreethatMr. Nizetic'smental statewas

34. With respectto Mr.Nizetic'smental stateunder thesecond prong ofthe

which had no basisin law or fact.

legal system when hesoughtrelieffrom the Court - a showcauseorder -

33. Under thefirstprong ofthe analysis,Mr. Nizeticviolateddutiesowed to

affectthe baselinesanction. See id.

existenceofany aggravatingor mitigatingfactors,and whether they

the Court then looks to the fourthand finalpartofthe analysis:the

the appropriatesanction").Once the baselinesanctionisdetermined,

the firststepis tocategorizethe respondent'smisconduct and identify

Conner's Case, 158 N.H. at303 (statingthat"[i]napplying thesefactors,

characterizingthe misconduct and determininga baselinesanction. See

32. The firstthreepartsoftheanalysiscreatetheframework for

613, 621 (2007)); Standards § 3.0.

aggravatingor mitigatingfactors." Id. (quoting Douglas' Case, 156 N.H.

injurycaused by thelawyer'smisconduct; and (d)the existenceof

duty violated;(b)thelawyer'smental state;(c)thepotentialor actual

four partanalysisforcourtsto considerin imposing sanctions:"(a)the p. 12 10

interferencewith a legalproceeding. otherparty,or causes interferenceor potential and causes injuryor potentialinjuryto aclientor negligentlyfails to complywith a courtorderor rule, 6.23 Reprimand isgenerallyappropriatewhen a lawyer

potentialinterferencewith a legalproceeding. clientor a party,or causes interferenceor rule,and causes injuryor potentialinjurytoa knows thathe or she isviolatinga courtorder or 6.22 Suspension isgenerallyappropriatewhen a lawyer

interferencewith a legalproceeding. partyor causes seriousor potentiallyserious causes seriousinjuryor potentiallyseriousinjuryto a to obtaina benefitforthe lawyer or another,and knowingly violatesa courtorderor rulewith the intent 6.21 Disbarment isgenerallyappropriatewhen a lawyer

thatno validobligationexists: tribunalexceptforan open refusalbased on an assertion claim,or failureto obey any obligationunder the rulesof a involvingfailureto expeditelitigationor bringa meritorious followingsanctionsare generallyappropriatein cases applicationofthefactorssetout in Standard 3.0,the Absent aggravatingor mitigatingcircumstances,upon

That Sectionprovides:

36. Mr. Nizetic'sRule 3.1 violationimplicatesSection 6.2 ofthe Standards.

expended for the sanctionhearing.

cause. Italsoprejudicedthelegalsystem in thatjudicialresourceswere

to move to vacatethe bench warrantand respond to theorderto show

Nizetic'sconduct caused actualinjuryto Ms. McKinnon, who was forced

actualor potentialinjurycaused by Mr. Nizetic'smisconduct. Mr.

35. The thirdprong ofthe sanctionanalysisrequiresan assessment ofthe

p. 12 10, 2016 docket.

understandingthatthe motion hearingwas stillon the Court'sFebruary p. 13 11

enforcement ofthisdisciplinarymatter. See Supreme Court Rule 37(19).

agrees to pay the costs incurred by theADO in the investigation and

40. Subject to thePCC'sapproval ofMr. Nizetic'sStipulation,Mr. Nizetic

sanctionunder the circumstancesofthiscase.

publiccensureservesthe purposes ofdisciplineand is anappropriate

merita downward departurefrom suspension topubliccensure. A

39. The parties agreethattheaggravatingand mitigating factors in this case

freedisclosureto theADO, and (c)remorse. See Standards § 9.32.

Mitigatingfactors include(a)the absence of priordiscipline,(b)fulland

substantialexperienceinthe practiceof law. See Standards § 9.22.

38. In thiscase the only aggravatingfactorpresentis Mr.Nizetic's

factors. E.g.,Conner's Case, 158 N.H. at303.

sanctionmust be consideredin lightofany aggravatingand mitigating

6.22,would callfor abaselinesanctionof suspension. The baseline

motion hearingwith the March 25 trial,when consideredunder Standard

McKinnon's impression about theconsolidationofthe February 10

37. Mr. Nizetic'sconduct in thismatter- thatis,failureto discloseMs.

(emphasis added).

proceeding. littleor no actualor potentialinterferencewith a legal or no actualor potentialinjuryto a party,or causes complying with a courtorderor rule,and causes little engages in an isolatedinstanceofnegligencein 6.24 Admonition isgenerallyappropriatewhen a lawyer p. 14 12

43. Mr. Nizetic knowingly and intelligentlywaives hisrightto ahearing.

fullyaware of the consequences of the Stipulation.

he has a rightto obtaincounsel regardingthisStipulationand, thathe is

inducements not setforthin the Stipulation;thathe understands that

resultof any threats,coercion,or duress,or ofany promises or

and voluntarilysubmitted;thathe isnot enteringthisStipulationas a

proposed dispositioncontainedin thisStipulationare freely,knowingly,

42. Mr. Nizeticacknowledges thatthe admissions of misconduct and the

the Stipulationpursuantto Rule 37A(III)(aa)(l).

disposition,and thatthe PCC may accept,reject,or conditionallyaccept

41. Mr. NizeticunderstandsthatthisStipulationrepresentsa recommended

separateagreement signed by Mr. Nizetic.

His agreement to pay the costsincurredby the ADO isthe subjectof a payment willbe due upon itsreceipt.

p. 15 a writtendecision. If I donot notifythe committee thatI disputethe bill,

understand thatthe Committee willconsiderthe disputeditem and issue

ofthe disputein writingwithinthirtydays of my receiptofthe bill. I

costs. If Idisputethe bill, I will notifythe Committee ofthe specificnature

thismatter,I understand thatthe Committee will billme forthese

approximately $55.75. Shouldfurthercostsaccrueinthisdispositionof

2. As of February 6, 2017, I have been informed thatthe costsare

transcripts,copying,inventory,auditexpenses and publication.

Costs can include,but are not limitedto:mileage, stenographers,

and enforcement of thisdisciplinarymatter. See Sup. Ct. R.37(19)(b).

agree to paythe expenses incurredby the Committee in the investigation

Stipulationof Facts,Rule Violations,and Sanction in the above matter,I

1. Subject to the ProfessionalConduct Committee's approval of the

Attorney DisciplineOffice'scollectionefforts.

6. I alsoagree to be responsiblefor allcostsincurredas a resultof the

enforcement remedies and procedures. See Sup. Ct. R. 37(19)(c).

judgment and shallbe subjectto alllegally-availablepost-judgment

courtin any county in the state,where itshallbe docketed as a final

5. The Committee may filea copy of the finalassessment with the superior

be enforced in any SuperiorCourt in New Hampshire.

shallhave the fullforce and effectofa civiljudgment. As a result,itmay

4. I understand and agree thatthe assessment of costsisdeemed finaland

formal demand for payment.

furtherdetailof the natureand amount of each expense, and I alsowaive

3. I waive the provisionsof Supreme Court Rule 37(19)(b) regardingany