Thomas R. Morgan (2017)

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

ProfessionalConduct 1.1; 1.16,and 8.4(a),as stipulated. evidence. Itfurtherfound thatThomas R. Morgan's conduct violatedRules of The Committee approved the factsas stipulatedby clearand convincing

and Caroline K. Leonard were absent. Georges J.Roy; and Martha Van Oot. Susan R. Chollet;Margaret R. Kerouac; PeterG. Beeson; Richard H. Darling;David W. McGrath; Mona T. Movafaghi; M. Rothstein,Chair; Heather E. Krans, Vice Chair;Elaine Holden, Vice Chair; DisciplinaryMatter (attachedas ExhibitB). Members presentincludedDavid ("theStipulation,"attachedas ExhibitA), and theAgreement to Pay Costs of Committee") deliberatedthe Stipulationas to Facts,Violationsand Sanction On April 18, 2017, the ProfessionalConduct Committee ("the

Morgan, Thomas R. advs. Attorney DisciplineOffice -#16-006

Margaret R. Kerouac BarbaraJ. Guay, LegalAssistant Richard H. Darling* * non attorneymember 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 Hampshire 03301 David W. McGrath David M. Rothstein,Chair 4 Chenell Drive, Suite 102 Caroline K. Leonard

File RussellF. Hilliard,Esquire cc: Sara S. Greene, DisciplinaryCounsel

investigationand prosecutionof thismatter. agreement thatMr. Morgan shallreimburse the Committee for allcostsof Having approved the stipulatedsanction,the Committee approved the p. 3 4. Mr. Morgan does not have a previous disciplinaryhistory.

Hampshire.

Law OfficesofThomas Morgan, PC, 369 Main Street,Salem, New

3. At alltimes materialto thisproceeding, Mr. Morgan practicedlaw atthe

has never been disciplinedin Massachusetts.

was licensedthereon June 7, 1079. He iscurrentlyon activestatusand

2. Mr. Morgan has also been admitted to practicelaw in Massachusetts. He

Hampshire. Mr. Morgan was admitted to practicein 1978.

1. Thomas Morgan, Jr.isan attorneylicensedto practicelaw in New

(ADO) stipulateas follows:

Respondent Thomas Morgan, Jr.,Esq., and the Attorney DisciplineOffice

withinthehome. Pursuantto theTrust,followingAnn's death,the

2010 (the"2010 Trust"),which held Ann's home and alloftheproperty

executed theAnn J.Furina Revocable Living Trustdated August 10,

Esq.,regardingthe preparationofa new estateplan. She thereafter

8. In 2009, Ann approached her estateplanninglawyer,Arthur Hoover,

propertyand assets.

and theTrust,the Furinos were theprimary beneficiariesofAnn's estate,

Ann J.FurinaTrustAgreement (the"Trust"). Pursuantto the 2000 Will

thismatter,in2000, Ann executed a new will(the"2000 Will")and the

7. Ann and her husband executed variousWills over theyears. Pertinentto

beneficiariesofher estate.

probatelitigationafterAnn executed estateplansthatremoved them as

Estate. As setforthfurtherbelow, the Furinos became involved in

niece and, between 1979 and 2010, theprimary beneficiariesofher

("Ann") Estate. Ralph, Anthony and Donna were Ann's nephews and

6. Mr. Morgan representedthe Furinos inmattersinvolvingAnn J.Furina's

"Furinos").

Furino ("Donna") and Anthony Furina ("Anthony) (collectively,the

2015 by Mr. Morgan's clients,Ralph V. Furino,Jr.,("Ralph"),1Donna M.

5. This disciplinarymatterwas initiatedby a grievancefiledon July22,

1. Background ofAnn Furino'sEstateMatter p. 5 Estatewith the Dover Probate Court (the"EstateAction"). Pursuantto

(thenamed Executor) fileda petitionforthe administrationofAnn's

the 2010 Trustand FinalWill. On November 30, 2012, David Dupont

12. Ann passed away on November 22, 2012, without making any changes to

requestingthatthe Dover Probate Court invalidatethedocuments.

with the 7thCircuit-ProbateCourt-Dover (the"Dover Probate Court"),

11. Upon receiptofthe"revocation"documents, Mr. Hoover fileda petition

demanded thatthe 2010 Trustbe terminatedimmediately.

"revocation"documents, Ralph forwarded them to Mr. Hoover and

essence,revoke the 2010 Trustand FinalWill. AfterAnn signed the

with him estateplanningdocuments thathe draftedwhich would, in

October 6, 2012, Ralph met with Ann atthe Hospital. Ralph brought

10. On October 5, 2012, Ann was diagnosed with pancreaticcancer. On

beneficiaries.

Will (the"2012 Will"),pursuantto which the Furinoswere not

9. Ann thereafterbecame illand on October 4, 2012, she executed a final

would be beneficiaries.

the 2010 Trustand the 2011 Will no longerprovided thatthe Furinos

variouscharities,her personalcaretakerand two family friends.Thus,

(the"2011 Will")which devised theremainder ofAnn's propertyto

distributedto St.Jude's.On January 7, 2011, Ann executed a new will

propertyin theTrustwould be soldand the proceeds ofthe sale sustainedby the party(with supportingdocumentary evidence). p. 6 intendedto relyon in supportofthe party'sclaims,and (3)alldamages witnessesmay testifyto,(2)copiesofallofthe documents thatthe party of: (1)thenames ofpotentialwitnessesand theinformationthatsuch were requiredto make "automaticdisclosures,"which includedthe disclosure the FederalRules ofCivilProcedure. Pursuantto the PAD Rules, the parties adopted inorderto make New Hampshire's courtproceduresmore inlinewith CarrollCounty and StraffordCounty SuperiorCourts. The PAD Rules were Discovery/Automatic DisclosurePilotRules) were made applicableinthe 2 Beginning on October 1, 2010, the PAD Rules (i.e., Proportional

inprobatecourt.2 Mr. Morgan toldthe Furinos thatthesedisclosures

("PAD" Rules),applicablein certainSuperiorCourts,were alsoapplicable

(incorrectly)thattheproportionaldiscovery/automaticdisclosurerules

produced a significantnumber ofdocuments to Mr. Hoover, believing

primarilywith Ralph. In December of2013, Mr. Morgan voluntarily

14. Throughout hisrepresentationofthe Furinos,Mr. Morgan dealt

Furinoswere theprimary beneficiaries)be revived.

revoked and the 2000 Will and 2000 Trust (pursuantto which the

Dupont. The Furinos requestedthatthe 2010 Trustand 2012 Will be

undue influence,duress,and fraudulentconduct by Mr. Hoover and Mr.

"EquityAction"),allegingtestamentaryincapacityon Ann's partand

the Dover Probate Court challengingthe 2010 Trustand 2012 Will (the

13. In February 2013, the Furinos retainedMr. Morgan to file apetitionwith

Dupont was appointed as the executor/administratorofthe Estate.

an orderdated February 19, 2013, the 2012 Will was allowed and Mr. p. 7 18, 2014. The Motions were withdrawn in May 2014.

Paul B. Kleinmann, Esq.,appeared as counsel forthe Furinos on April

18. Ralph filed pro se a Motion to Stay Deadlines on March 25, 2014, and

contemporaneously with a Motion to Withdraw.

thatthey certainlywould not have wanted Mr. Morgan to filethem

Given theinherentlycontentiousnatureofthe Motions, the Furinos state

allegethatthey instructedMr. Morgan to filethe Motions months earlier.

and Mr. Morgan feltobligatedto complete thistask,butthe Furinos

The Furinos had previouslyrequestedthatMr. Morgan seek thisrelief,

Motion for Sanctionsand a Motion to Compel Discovery ("theMotions").

17. On the same day as filinghisMotion to Withdraw, Mr. Morgan fileda

seek othercounsel.

point,and Ralph had informed Mr. Morgan thathe and hisfamily would

forthe Furinos. The attorney-clientrelationshiphad deterioratedby this

16. On March 24, 2014, Mr. Morgan fileda Motion to Withdraw as counsel

undertake the effortand costsofpropounding discoveryrequests.

informationwould have otherwisebeen received,withouthaving to

importantinformationand documents from the Furinos earlierthan the

As a resultofMr. Morgan's disclosures,the opposing partiesreceived

he realizedthatthe PAD Rules did not apply to Probate Court actions.

15. When Mr. Morgan did not receivethe opposing parties'PAD disclosures,

documents.

were requiredby ruleand charged them forthe costofproducing the p. 8 6

bringingthose areasto the client'sattention; (3)identificationofareasbeyond thelawyer'scompetence and (2)performance ofthe techniquesofpracticewith skill; lawyer practices; (1)specificknowledge about thefieldsoflaw inwhich the (b)Legal competence requiresata minimum: (a) Alawyer shallprovide competent representationto a client.

24. Rule 1.1 statesinpertinentpartas follows:

23. The factssetforthatIfU 1 -22 above areincorporatedby reference.

follows:

violationsofthe New Hampshire Rules ofProfessionalConduct, as

22. The partiesagree thatMr. Morgan's conduct inthiscase involves

21. Mr. Morgan wrote off$1 p. 8 6,537.75 inlegalfees.

Probate Court'sdecision.

Hampshire Supreme Court, which, on May 2 p. 8 6, 2016, affirmed the

Action. The Furinos appealed the Probate Court'sdecisionto the New

enteredan orderdenying the Furinos'requestsforreliefinthe Equity

on July 1 p. 8 6, 2014, and completed on March 26, 2015. The Probate Court

20. The trialin the Equity Action was conducted over 10 days commencing

Actions forpurposes ofdiscovery,but not fortrial.

Brentwood (the"Probate Court") and consolidatedthe Estateand Equity

transferredthe Equity Action to the 10th Circuit-ProbateDivision-

19. Pursuantto an Order dated October 1 p. 8 6, 2013, the Dover Probate Court p. 9 29. Having found theforegoingviolation,thereisclearand convincing

manner thatreasonablyprotectedthe Furino'sinterests.

affectedthe Furinos. As such, Mr. Morgan failedto withdraw in a

responsesto the Motions and possiblereplies)thatcould have adversely

Discovery. These filingssetfairlytightdeadlinesin motion (i.e.for

Motion to Withdraw, a Motion for Sanctionsand a Motion to Compel

28. Mr. Morgan violatedRule 1.16(d)when he filed,simultaneouswith his

extentpermittedby law. lawyer may retainpapers relatingto theclientto the fee or expense thathas not been earned or incurred.The clientisentitledand refundingany advance payment of counsel,surrenderingpapers and propertyto which the noticeoftheclient,allowing time for employment ofother protecta client'sinterests,such as givingreasonable shalltake stepsto the extentreasonablypracticableto (d)As a conditionto terminationofrepresentation,a lawyer

27. Rule 1.16 statesin pertinentpartas follows:

26. The factssetforthat^[ 1-25 above areincorporatedby reference.

Rule 1.16: Declining or Terminating Representation

partieswithout opposing counsel'sneed to propound discoveryrequests.

and disclosedmaterialinformationand documents to the opposing

researchintothe issue,thatthe PAD Rules appliedto the Probate Court,

25. Mr. Morgan violatedRule 1.1 when he concluded, without sufficient

to the client'sinterest. thematterundertaken iscompleted with no avoidableharm (5)attentionto detailsand schedulesnecessaryto assurethat (4)proper preparation;and p. 10 8

characterizingthemisconduct and determining a baselinesanction. See

34. The firstthreepartsofthe analysiscreatethe framework for

613, 621 (2007)); Standards § 3.0.

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

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

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

four partanalysisforcourtsto considerinimposing sanctions: "(a)the

guidance. Conner's Case, 15 p. 10 8 N.H. at303. The Standards setfortha

33. Although the Court has not adopted the Standards, itlooksto them for

(2005).

the severityofthe misconduct." Coffey'sCase, 152 N.H. 503, 513

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

legalprofession,and preventingsimilarconduct inthe future." Conner's

maintainingpublicconfidencein thebar, preservingthe integrityofthe

32. The purpose ofthe Court'sdisciplinarypower is"protectingthe public,

Imposing Lawyer Sanctions (2005) ("Standards'*) support thissanction.

31. Both case law and the American Bar Association's Standards for

would serve the purposes ofattorneydiscipline.

Reprimand isthe appropriate sanctioninthismatter. This sanction

30. The AttorneyDisciplineOfficeand Mr. Morgan jointlyagree thata

Prof.Conduct p. 10 8.4(a).

evidence thatMr. Morgan's conduct,as describedherein,violatedN.H. R. withdrawn.

p. 11 to work with counsel for Ann to ensure the motions were ultimately

withoutrepresentationregarding theseMotions. Successor counsel had

them atthe same time he sought to withdraw, leavingthe Furinos

Morgan's filingofthe Motions created potentialinjuryin thathe filed

automatic disclosurestheywere not in factrequiredto make. Mr.

38. Mr. Morgan's conduct injuredthe Furinos in thattheywere charged for

actualor potentialinjurycaused by Mr. Morgan's misconduct.

37. The thirdprong ofthe sanctionanalysisrequiresan assessment ofthe

negligent.

sanctionanalysis,the partiesagree thatMr. Morgan's mental statewas

36. With respectto Mr. Morgan's mental stateunder the second prong ofthe

hisclients.

35. Under the firstprong ofthe analysis,Mr. Morgan violateddutiesowed to

mitigatingfactorson the ultimatesanction").

sanction,[theCourt] considers]the effectofany aggravating or

affectthe baselinesanction. See id. (statingthat"[a]fterdetermining the

existenceofany aggravating or mitigatingfactors,and whether they

the Court then looks to the fourthand finalpartofthe analysis:the

the appropriate sanction").Once the baselinesanctionisdetermined,

the firststepis tocategorizetherespondent'smisconduct and identify

Conner's Case, 158 N.H. at 303 (statingthat"[i]napplyingthesefactors, p. 12 10

Standards, isanalogous to a publiccensurein New Hampshire. reprimand in New Hampshire. The term "reprimand,"as used inthe ABA 3 The term "admonition,"as used inthe ABA Standards, isanalogous to a

(emphasis added).

littleor no actualor potentialinjuryto a client. he or she iscompetent to handle a legalmatter,and causes inan isolatedinstanceofnegligencein determiningwhether 4.54 Admonition3 isgenerallyappropriatewhen a lawyer engages

injuryor potentialinjuryto a client. competent to handle a legalmatter and causes (b) isnegligentindetermining whether he or she is potentialinjurytoa client;or doctrinesor procedures and causes injuryor (a) demonstrates failuretounderstand relevantlegal

4.53 Reprimand isgenerallyappropriatewhen a lawyer:

client. not competent, and causes injuryor potentialinjuryto a inan areaofpracticein which the lawyer knows he or she is 4.52 Suspension isgenerallyappropriatewhen a lawyer engages

potentialinjuryto a client. procedures,and the lawyer'sconduct causes injuryor understand themost fundamental legaldoctrinesor ofconduct demonstratesthatthelawyer does not 4.51 Disbarment isgenerallyappropriatewhen a lawyer'scourse

competent representationto a client: generallyappropriatein casesinvolvingfailureto provide ofthefactorssetout inStandard 3.0,thefollowing sanctionsare Absent aggravatingor mitigatingcircumstances,upon application

Standards. That Sectionprovides:

40. Mr. Morgan's violationofRule 1.1 implicatesSection4.5 ofthe

Censure. See Standards §§ 4.53,7.3.

39. The partiesagree thatthe baselinesanctionin thismatterisa Public p. 13 11

substantialexperienceon the practiceoflaw. See Standards § 9.22.

44. In thiscase thereisone aggravatingfactorpresent: Mr. Morgan's

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

43. The baselinesanctionmust be consideredinlightofany aggravatingand

4.53 and 7.3,would callfora baselinesanctionofPublicCensure.

42. Mr. Morgan's conduct inthismatter,when consideredunder Standards

(emphasis added).

the public,or thelegalsystem. and causeslittleor no actualor potentialinjuryto a client, the lawyer'sconduct violatesa duty owed as a professional, inan isolatedinstanceofnegligencein determiningwhether 7.4 Admonition isgenerallyappropriatewhen a lawyer engages

system. potentialinjurytoa client,the public,or thelegal duty owed as a professionaland causes injuryor negligentlyengages inconduct thatisa violationofa 7.3 Reprimand isgenerallyappropriatewhen a lawyer

client,the public,or the legalsystem. a professionaland causes injuryor potentialinjuryto a knowingly engages in conduct thatisa violationofa duty as 7.2 Suspension isgenerallyappropriatewhen a lawyer

seriousinjuryto a client,the public,or thelegalsystem. the lawyer or another,and causes seriousor potentially owed as a professionalwith theintentto obtaina benefitfor knowingly engages in conduct thatisa violationof aduty 7.1 Disbarment isgenerallyappropriatewhen a lawyer

from representation,or failureto reportprofessionalmisconduct. generallyappropriatein casesinvolving. . .improper withdrawal ofthefactorssetout in Standard 3.0,thefollowingsanctionsare Absent aggravatingor mitigatingcircumstances,upon application

Standards. That Sectionprovides:

41. Mr. Morgan's violationofRule 1.16 implicatesSection7.0 ofthe p. 14 12

inducements not setforthin theStipulation;thathe understandsthat

resultofany threats,coercion,or duress,or ofany promises or

and voluntarilysubmitted;thathe isnot enteringthisStipulationas a

proposed dispositioncontainedinthisStipulationarefreely,knowingly,

49. Mr. Morgan acknowledges thatthe admissions ofmisconduct and the

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

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

48. Mr. Morgan understandsthatthisStipulationrepresentsa recommended

separateagreement signed by Mr. Morgan.

His agreement to pay the costsincurredby theADO isthe subjectofa

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

agreesto pay the costsincurredby theADO in theinvestigationand

47. Subjectto the PCC's approval ofMr. Morgan's Stipulation,Mr. Morgan

purposes ofdisciplineand isan appropriatesanctionin thiscase.

aggravatingand mitigatingcircumstances,a Reprimand servesthe

46. The partiesagree thatgiven the baselinesanction,and considerationof

remorse. See Standards § 9.32.

motive, a cooperativeattitudeduring the disciplinaryprocess,and

nearly40 yearsofpracticinglaw),absence ofa dishonestor selfish

45. Mitigatingfactorsincludethe absence ofa priordisciplinaryrecord (in p. 15 13

: 3-31Dated 2017

50. Mr. Morgan knowingly and intelligentlywaives hisrightto ahearing.

fullyaware ofthe consequences of the Stipulation.

he has a rightto obtaincounsel regardingthisStipulationand, thathe is formal demand for payment.

p. 16 furtherdetailof the natureand amount of each expense, and I alsowaive

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

afterreceiptof a bill.

approximately $172.50. I agree to pay thissum within ninety(90)days

2. As ofMarch 7, 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 pay the expenses incurredby the Committee in the investigation

Stipulationas to Facts,Violations,and Sanction in the above matter,I

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

ziL.Dated: U () \. 2017

oftheAttorney DisciplineOffice'sco\le\tionefforts.

I alsoagree to be responsibleforallreasonablecostsincurredas a result

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

The Committee may file acopy ofthe finalassessment with the superior

willbe due upon itsreceipt.

writing. If Ido not notifythe committee thatI disputethebill,payment

committee willconsiderthe disputeditem and issuea writtendecisionin

disputeinwritingwithin thirtydays ofmy receiptofthe bill.The

disputethe bill,I shallnotifythe committee ofthe specificnatureofthe

dispositionofthismatter,the committee willbillme for thesecosts. IfI

I agree to pay thesecosts,and should furthercostsaccrue in this

be enforced in any SuperiorCourt in New Hampshire.

shallhave the full forceand effect of a civiljudgment. As a result,itmay

Iunderstand and agree thatthe assessment ofcostsis deemed finaland