Christopher W. Keenan (2017)

Imposing Lawyer Sanctions (2005) ("Standards"). 155, 159-60 (2005). The sanctionisalso in accord with the ABA Standards for See e.g.,Conner's Case 158 N.H. 299, 303 (2009); Richmond's Case, 152 N.H. appropriate.Itssanctionis inaccord with the purposes ofattorneydiscipline. The Committee alsoconcluded thata Public Censure With Conditions is

ofProfessionalConduct 1.15;5.3;8.1;8.4(a);and Sup. Ct. R. 50, as stipulated. evidence. Itfurtherfound thatChristopherW. Keenan's conduct violatedRules The Committee approved the factsas stipulatedby clearand convincing

and Mona T. Movafaghi were absent. Krans, Vice Chair;Susan R. Chollet;Richard H. Darling;Margaret R. Kerouac; Leonard; David W. McGrath; Georges J.Roy; and Martha Van Oot. Heather E. M. Rothstein,Chair; Elaine Holden, Vice Chair; PeterG. Beeson; Caroline K. DisciplinaryMatter (attachedas ExhibitB). Members presentincludedDavid ("theStipulation,"attachedas ExhibitA), and theAgreement to Pay Costs of Committee") deliberatedthe Stipulationas to Facts,Violationsand Sanction On June 20, 2017, the ProfessionalConduct Committee ("the

Keenan, Christopher W. advs. Attorney DisciplineOffice- # 16-023

Margaret R. Kerouac Barbara J.Guay, Legal Assistant 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 Richard Y. Uchida, Esquire cc: Sara S. Greene, DisciplinaryCounsel

June 20,2017

costsofinvestigationand prosecutionof thismatter. agreement thatChristopherW. Keenan shallreimburse the Committee for all Having approved the stipulatedsanction,the Committee approved the p. 3 Upon motion of Mr.Keenan, thatdefaultwas ultimatelyvacated by Order

Keenan defaultingon a Notice of Charges issuedon September 12, 2016.

5. This case has an unusual proceduralbackground which resultedin Mr.

4. Mr. Keenan does not have a previous disciplinaryhistory.

Suite 7, Portsmouth, New Hampshire 03801.

officeas Law Officesof ChristopherW. Keenan, P.C., 125 Brewery Lane,

3. At all times materialto thisproceeding, Mr. Keenan operated hislaw

1986. He iscurrentlyon Active Non-Resident statusfor the Maine Bar.

2. Mr. Keenan was also admitted to practicelaw in Maine on October 1,

Mr. Keenan was admitted to practicein 1986.

1. Mr. Keenan isan attorneylicensedto practicelaw in New Hampshire.

A. Background Facts/Summary ofInvestigation

Office (ADO) stipulateas follows:

Respondent ChristopherW. Keenan, Esq., and the Attorney Discipline

NEW HAMPSHIRE SUPREME COURT as hislegalassistant.Ms. Osborne was hissole supportstaff.

p. 4 proceeding,Mr. Keenan employed an individualnamed KristenOsborne

7. Mr. Keenan isa solepractitioner.At alltimes materialto this

sanctionand are not the gravamen ofthismatter.

theseare minor errorsthatdo not substantiallyaffectthe proposed

demonstrates a few isolatedinstancesofrecord-keepingfailures,but

review of Mr. Keenan's bank recordsand relevantfilematerials

errorforwhich the bank reversedalloverdraftcharges. The ADO's

initiationofthisdisciplinarymatter,the ODN was the resultofbank

forthfurtherbelow. Although the ODN was the event which caused the

remedial measures, resultingin Rule 5.3 and 8.1(b)violationsas set

Upon discoveringthismisconduct, Mr. Keenan failedto take appropriate

divertingthe ADO correspondence from him for atleastsix(6)months.

Charges, Mr. Keenan discovered thathislegalassistanthad been

respond to numerous lettersfrom the ADO, includingthe Notice of

notification(ODN) from TD Bank in May 2016. After Mr. Keenan failedto

6. This matterwas initiatedwhen the ADO receivedan overdraft

the partiesreached thisStipulation.

Answer on January 17, 2017. Mr. Keenan thereafterhiredcounsel and

ofthe Hearing Panel Chair dated December 13, 2016, and he filedan p. 5 November, 2016, Mr. Keenan never saw thisletter.

Keenan's IOLTA ClientTrustAccount (CTA) was overdrawn. Until

11. By letterdated May 2, 2016, TD Bank informed the ADO thatMr.

desk.

mailbox ather desk. The second key was kept by Mr. Keenan in his

thatwere time sensitive.Ms. Osborne kept one oftwo keys to the

pertinentdeadlines,and bringingto Mr. Keenan's attentionany matters

retrievingmail from a locked mailbox, opening it,calendaringany

relevantfor thisdisciplinarymatter,Ms. Osborne was responsiblefor

draftsofpleadings,and transcribingdictatedcorrespondence. Most

officeand case management, includingmaintainingfiles,writingfirst

10. Ms. Osborne was solelyresponsiblefor assistingMr. Keenan with general

performance issueswith Ms. Osborne.

disciplinarymatter,Mr. Keenan had not had any personnelorjob

approximately seven years. Priorto the eventsleadingto this

worked as a legalassistantfor the Donahue Tucker & Ciandellafirm for

October of 2013. Priorto working for Mr. Keenan, Ms. Osborne had

9. Mr. Keenan hiredMs. Osborne as a legalassistanton or around Auguot

correspondence from the ADO to Mr. Keenan returnedas undeliverable.

Association. At no pointduring the eventsdescribedhereinwas any

mailing addressthathe kept on filewith the New Hampshire Bar

8. All correspondence from the ADO to Mr. Keenan was addressed to the p. 6 3016, and reminding him ofhisduty under Rule 8.1 tocooperatewith

requestingthathe respond inwritingregardingthe ODN by August 3,

19. On July25,2016, Disciplinary Counselsenta letter toMr. Keenan again

2016, Mr. Keenan never saw thisletter.

to DisciplinaryCounsel by letterdated July 20, 2016. UntilNovember,

18. The matterwas forwarded by the ComplaintScreeningCommittee (CSC)

17. Thus, Mr. Keenan did not respond to theJune 20 docketingletter.

ofRule 8.1(b). UntilNovember, 2016, Mr. Keenan never saw thisletter.

Keenan was "required"to respond and thatfailureto do so isa violation

2016. The lettercontainedthe standardlanguage notingthatMr.

16. Therefore,the case was docketed byletterto Mr. KeenandatedJune 20,

15. As a result,Mr. Keenan did not returnMr. Moushegian's call.

with Mr.Keenan. Mr. Keenan never receivedthismessage.

thathe was callingfrom theADO and thathe urgently needed to speak

informationabout theODN. He left amessagewithMs. Osborne,stating

14. Mr. Moushegian thereaftercalledMr. Keenan at his lawofficeseeking

letter.

13. As a result,Mr. Keenan did not respond toMr. Moushegian'sMay 12

occurred. UntilNovember, 2016, Mr. Keenan never saw thisletter.

informationand providea writtenexplanationofhow the overdraft

Moushegian requestedthatMr. Keenan providespecific banking

12. By letterdated May 12, 2016, AssistantGeneral Counsel Brian based on the bank recordsreceivedin response to the subpoena, and

p. 7 2016. The letterposed variousquestionsabout specificclientmatters

25. DisciplinaryCounsel sentanotherletterto Mr. Keenan on August 24,

24. As a result,Mr. Keenan did not returnthe August 24, 2016 phone call.

Keenan never receivedthismessage.

Osborne statingthatshe urgentlyneeded to speak with Mr. Keenan. Mr.

23. On August 24, 2016, DisciplinaryCounsel lefta message with Ms.

requirements.

evidence ofmisappropriationor significantfailuresin record-keeping

separatelybelow, infra 1ffl47-56, but in summary, the recordsshowed no

24, 2016. The resultsofthe review of theserecordsissetforth

22. The ADO receivedMr. Keenan's bank recordsfrom TD Bank on August

Keenan never saw thisletter.

the Lawyer's AssistanceProgram. Again, untilNovember, 2016, Mr.

manner. This letteralsoadvised Mr. Keenan regardingthe servicesof

filedhisTrustAccount Compliance Certification(TAC) in a timely

Keenan enclosingcopiesofthe subpoenas and notingthathe had not

21. On August 5, 2016, DisciplinaryCounsel sentanotherletterto Mr.

subpoenas to TD Bank for Mr. Keenan's CTA records.

forthby DisciplinaryCounsel. DisciplinaryCounsel thereforeprepared

20. Thus, Mr. Keenan did not respond by the August 3, 2016 deadlineset

letter.

theADO. However, untilNovember, 2016, Mr. Keenan never saw this and theADO a Notice of Hearing Panel Appointment and Notice of Pre-

p. 8 30. The clerkforthe Hearings Committee issuedand mailed to Mr. Keenan

(ifanyone) she was talking.

Osborne to the Bar Association,and Mr. Keenan isnot certainto whom

attemptsto filetheTAC. As itturnsout,therewere no callsfrom Ms.

representativesofthe New Hampshire Bar Associationabout her

time he could hear her on the phone allegedlyspeaking with

the time, he found her representationscrediblebecause from time to

2016, thatshe had filedtheTAC as he had requestedinJune 2016. At

latebecause Ms. Osborne misrepresentedto him, in the summer of

29. Mr. Keenan filedhisTAC on or around September 30, 2016. He filedit

thatMr. Keenan had defaultedpursuantto Rule37A(III)(b)(3)(A).

DisciplinaryCounsel asked thata Hearing Panel be appointed and noted

to Mr.Keenan. When Mr. Keenan did not answer by the deadline,

28. Ms. Osborne signedforthe certifiedNOC. The NOC was never passed on

the Bar Associationas requiredby Rule 37A(III).

was sentcertifiedmail to the address Mr. Keenan has kept on filewith

27. The ADO issueda Notice ofCharges (NOC) on September 12, 2016. It

1, 2015 through May 31, 2016.

Additionally,as ofthatdate,he had not filedhisTAC forthe periodJune

26. Thus, Mr. Keenan did not respond by the September 7, 2016 deadline.

untilNovember, 2016, Mr. Keenan never saw thisletter.

requestedthatMr. Keenan respond by September 7,2016. Once again, confirming her receiptof the NOC at11:23 a.m. on September 13, 2016.

p. 9 Osborne's signatureon the Return Receipt forcertifiedmail for the NOC,

36. Importantly,thiscorrespondence includeda scanned versionofMs.

reach him sinceMay 2016.

proceedings).As noted above, General Counsel had been attemptingto

going back to July 2016 (i.e.from the time hismatterwas in formal

Mr. Keenan allofthe correspondence from the ADO addressed to him

35. On November 10, 2016, DisciplinaryCounsel scanned and emailed to

ofa Notice ofCharges on which he had been defaulted.

DisciplinaryCounsel, Mr. Keenan was on noticethathe was the subject

34. On November 9, 2016, when he opened and read the email from

ofany kind thatMr. Keenan receivedfrom the ADO.

2016 email from DisciplinaryCounsel. This was the firstcorrespondence

33. On November 9, 2016, he did,however, open and read the November 4,

32. Mr. Keenan did not receivethe mailed documents.

Keenan.

courtesy,alsoemailed, bates-stampeddiscovery documents to Mr.

31. Thereafter,on November 4, 2016, DisciplinaryCounsel mailed, and as a

November, 2016, Mr. Keenan never saw thesenotices.

the Hearings Committee, itwas mailed to Mr. Keenan's law Office. Until

hearingConference on October 26, 2016. Like allcorrespondence from p. 10 8

responsiblefor gatheringand opening mail untilmid-February 2017.

she continued to keep ather desk and use daily. She continued to be

minimum, take away from Ms. Osborne her key to hismailbox, which

Keenan did not terminateMs. Osborne. Mr. Keenan did not,ata

document for which she signed and on which he had defaulted,Mr.

piecesofADO correspondence from him, includingthe actualcharging

39. Despite being on noticethathisassistanthad divertedapproximately 11

worry about her going forward. ofcorrespondence from us,notjusta singleletter),I would ofmishandling something likethis(and with so many pieces Osborne] seriouslyjeopardizedyour career. Ifshe iscapable supervisenon-lawyers and take correctiveaction. [Ms. I remind you ofyour dutiesunder Rule 5.3 to properly

emailed Mr. Keenan on November 14, 2016 and stated:

decided he should file aMotion to Vacate Default,DisciplinaryCounsel

3 p. 10 8. Aftera telephone conversationwith Mr. Keenan during which the parties

was ever returnedto the sender as undeliverable.

certified(large)package containingthe NOC, and (d)no correspondence

(b)the sheervolume ofcorrespondence atissue,(c)her signatureon a

factthat(a)she was solelyresponsiblefor gatheringmail and opening it,

Osborne's explanationisinsufficientand simply not credible,due to the

confronted by DisciplinaryCounsel. Mr. Keenan agrees thatMs.

ADO. Likewise, Ms. Osborne provided the same response when

has no recollectionofthatdocument, or any otherdocument, from the

agreeingshe signed for the NOC, Ms. Osborne toldMr. Keenan thatshe

37. Mr. Keenan confronted Ms. Osborne about the correspondence. While because of theirlong-term employment relationship.He was also

p. 11 employed Ms. Osborne for 3 Va years,and feltan allegianceto her

healthinsuranceand he felta friendshipwith Ms. Osborne. He had also

and certainmedical problems, and he feltbadly forher. He provided her

aware she was in the midst of personalproblems, includingmaritalstrife

againstMs. Osborne (such as firingher immediately) because he was

43. Mr. Keenan would testifythathe did not take prompt and decisiveaction

assistantin the following week) was February 17, 2017.

work (otherthan some briefad hoc trainingsessionsof Mr. Keenan's new

February 15, 2017, afterfindinga new assistant,and her lastday of

around February 6, 2017. He gave her noticeofher terminationon

42. Mr. Keenan finallytook the key to the mailbox from Ms. Osborne on or

filedan Answer fivedays late,on January 17, 2017.

timely fashion. DisciplinaryCounsel again emailed Mr. Keenan and he

it.Having not receivedthe Order, Mr. Keenan did not filehisAnswer in a

December 13, 2016 Order from Mr. Keenan, and thushe never received

resultofher continued controlover mail, Ms. Osborne divertedthe

misconduct, however, she continued to be responsiblefor mail. As a

41. Because Mr. Keenan had not adequatelyaddressed Ms. Osborne's

2017 for Mr. Keenan to Answer the NOC.

dated December 13, 2016. The Order seta new deadlineofJanuary 12,

40. Mr. Keenan fileda Motion to Vacate Default,which was grantedby Order p. 12 10

practice.

with the variousinsuranceagencieswhich issueinsurancefor hislaw

address.Ithas alsobeen updated with the Maine Bar Associationand

ofMarch 24, 2017 to includehisnew postofficebox as hismailing

physicalmailbox in hispossession. Mr. Keenan updated hiswebsite as

P.O. Box as hismailing address. Mr. Keenan keeps the keys to the

forreceivingmail. He timelyupdated the Bar Associationregardingthe

45. Mr. Keenan alsoopened a postofficebox on February 14, 2017 to use

offto Ms. Epperson.

to calendarimportantdeadlinesor "to-do's,"and then handing the mail

ispersonallyretrievinghismail atthistime,opening ithimselfin order

2015 and was recentlyadmitted to the New Hampshire Bar. Mr. Keenan

of2017. Moreover, she isa member ofthe Massachusetts bar since

44. Mr. Keenan hireda new legalassistant,CarolineA. Epperson, in March

phone calls,voicemails,opening mail,etc.)endangered clientsas well.

continuingto employ Ms. Osborne and utilizeher as his"gatekeeper"(i.e.

only to have harmed Mr. Keenan himself,he likewiserecognizesthat

Osborne's misconduct was serious.Although her misconduct appears

hindsightthatdespitethesepersonal/friendshipconcerns,Ms.

relationship.These factorsclouded hisjudgment. He recognizesin

due to her personalsituationand the stressitwould place on her marital

reluctantto releaseher during and immediately afterthe holiday season p. 13 11

arisingout ofany actsor omissions by Ms. Osborne. 1To date,the ADO has not receivedany othergrievancesinvolvingMr. Keenan

or posted items of$207.20 on April28, 2016.

availableimmediately, thislefta totalavailablebalance forwithdrawals

$107.20. Because only $100.00 ofthe $13,000.00 depositedwas made

deposit,the beginning availablebalance in the IOLTA account was

made only $100 ofthe $13,000 immediately available.At the time ofthe

immediately available.Unknown to Mr.Keenan, however, TD Bank

48. Under TD Bank's policies,funds from bank checks are normally

clientnamed James Dugan.

$13,000 on April 28, 2016. These funds were settlementmonies fora

depositeda bank check from York County Federal CreditUnion for

47. The overdraftoccurred,essentially,due to bank error. Mr. Keenan

The Cause ofthe Overdraft & Mr. Keenan's Bank Records

Osborne which cannot be readilyremedied.1

performed. To date,they have not discovered any harm caused by Ms.

and obligationsforwhich Ms. Osborne had responsibilityhave been fully

to protectclientinterests;and (c) toensure any administrativematters

Osborne have prejudiceda client;to (b)undertake any follow-up actions

of Mr. Keenan's filesto (a)ensure thatno actsor omissions by Ms.

Ms. Epperson have undertaken a case-by-case/matter-by-matterreview

which he assignedto her thatwere never accomplished. Mr. Keenan and

46. Since Ms. Osborne's departure,Mr. Keenan has discovered othertasks p. 14 12

cashier'schecks.

misunderstanding theirbank'savailablefunds policyforbank or

circumstances,i.e.bank erroror an isolatedinstanceofan attorney

ODN, as ithas done in variousothermattersunder similar

to respond as setforthherein,theADO likelywould have dismissed the

Mr. Moushegian, and had he been ableto availhimselfofthe opportunity

52. Had Mr. Keenan receivedthe firstletterfrom Deputy General Counsel

representingMr. Dugan.

the operatingaccount representingthe fee earned and costsincurredin

issuedcheck number p. 14 1261 in the amount of$3,641.64 from hisCTA to

check had cleared.Thereafter,Mr. Keenan's office, on May 9,2016,

learnedof the overdraft,the York County Federal CreditUnion bank

allof the feesand charges forthe overdraft.By the time Mr. Keenan

TD Bank ofitserror. TD Bank, upon acknowledging the error,reversed

51. After receivingnoticeofthe overdraft,Mr. Keenan immediately notified

dated May 2, 2016.

generatinga negativebalance,resultingin TD Bank's ODN to the ADO

50. These checks createdan overdraftin Mr. Keenan's IOLTA TrustAccount

ChristopherW. Keenan, P.C, and returnedfor insufficientfunds.

bank forpayment out ofthe CTA. Both checks were made payable to

feesand costs,respectively,in the Dugan case,were presentedto the

check number p. 14 1259 in theamount of$308.31 representingMr. Keenan's

49. On the same date,check number p. 14 1258 in the amount of$3,333.33 and p. 15 13

57. The partiesagree thatMr. Keenan's conduct in thiscase involves

may have encountered mental healthissues.

arosein those matters.He has alsocome to believethatMs. Osborne

which she failedto address or satisfactorilycomplete when complications

thatshe similarlyconcealed or filedaway othermattersassigned to her

based on hisinvestigationof officeand clientmattersand hisfinding

and thatratherthan deal with the issue,she concealed it. His beliefis

Keenan believesthatMs. Osborne feltshe was the cause of the overdraft,

to provide Mr. Keenan with the many communications from theADO, Mr.

56. Although Ms. Osborne has offeredno credibleexplanationforher failure

Keenan.

demonstrate no evidence ofmisappropriationor self-dealingby Mr.

55. The bank records,clientledgers,and filematerialsreviewed by theADO

isholding forthem and accuratelyreflectrunning balances.

matter. The clientledgersfortheseclientsproperlyaccount forfunds he

depositsand disbursements,with a running balance,foreach client

54. Mr. Keenan produced clientledgers,however, thataccuratelytracked

thedisbursement.

clientmattertowhich thosedisbursementspertainedor the purpose of

containno identifyinginformationon the "memo" lineindicatingthe

isthatMr. Keenan wrote four (4)checks from hisIOLTA account which

53. The only otherrecord-keepingfailurethatthe bank recordsdemonstrate p. 16 14

otherwisepermittedby law or by agreement with the client,a the clientor thirdperson. Except as statedin thisruleor thirdperson has an interest,a lawyershallpromptly notify (e)Upon receivingfunds or otherpropertyin which a clientor receivingfinancialinstitution. and (B) availabilityof such funds to the lawyer from the otherform ofdepositby such receivingfinancialinstitution, to the sum ofsuch disbursements,or (ii)clearanceofany certifiedcheck, or electronictransferoffunds atleastequal receivingfinancialinstitution,ofcash,bank cashier'scheck, (A) (i)deposit,receiptofwhich isacknowledged by the (d)Funds may be disbursedfrom lawyertrustaccounts upon incurred. withdrawn by the lawyer onlyas feesare earned or expenses and expenses thathave been paid in advance, to be (c)A lawyer shalldepositintoa clienttrustaccount legal fees purpose. on thataccount,but only inan amount appropriateforthat account forthe solepurpose ofpaying bank servicecharges (b) Alawyer may depositthe lawyer'sown funds in a clienttrust and appropriatelysafeguarded. clientand thirdpartypropertyshallbe identifiedas such distributionofsuch otherpropertyor any portionthereof.All shallbe preservedfor aperiodof sixyears afterfinal ofclientsor thirdpersons shallbe kept by the lawyerand aspectofthoseRules. Sufficientrecordsof allotherproperty Supreme Court Rules and shallcomply with everyother thirdpartyfunds as may berequiredby the New Hampshire minimum financialrecordswith respectto the clientand Supreme Court Rules. The lawyer shallmaintain the accordance with the provisionsofthe New Hampshire representationseparatefrom the lawyer's ownproperty,in isin a lawyer'spossessionin connection with a (a)A lawyer shall hold property of clients orthirdpersonsthat

59. Rule 1.15 statesas follows:

58. The factssetforth above areincorporatedby reference.

Rule 1.15 and Sup. Ct. Rule 50: Safekeeping Property

follows:

violations of theNew Hampshire Rules of Professional Conduct,as p. 17 15

Conduct ifengaged in by a lawyer if: thatwould be a violationof the Rules of Professional (c) alawyer shallbe responsiblefor conduct of such a person obligationsofthe lawyer; and the person'sconduct iscompatible with the professional nonlawyer shallmake reasonableeffortsto ensure that (b)Each lawyer having directsupervisoryauthorityover the compatible with the professionalobligationsofthe lawyer; giving reasonableassurancethatthe person'sconduct is effortsto ensure thatthe firm has in effectmeasures managerial authorityin a law firm shallmake reasonable togetherwith otherlawyers possessescomparable (a)Each partner,and each lawyer who individuallyor associatedwith a lawyer: With respectto a nonlawyer employed or retainedby or

62. Rule 5.3 statesas follows:

61. The factssetforthabove are incorporatedby reference.

Rule 5.3;ResponsibilitiesRegarding Nonlawyer Assistants

Rule violation,itlikelywould have been dismissed,as noted above.

minor, being in the natureof asimple oversight.Had thisbeen the only

violatedRule 1. p. 17 15(b)/Sup.Ct. Rule 50(2)(B).This violationisrelatively

relatedon four checks during an eightmonth period,Mr. Keenan

60. In failingto note the clientmatterto which a particulardisbursement

propertyas to which the interestsare not in dispute. The lawyer shallpromptly distributeallportionsofthe be kept separateby the lawyer untilthe disputeisresolved. whom may be the lawyer)claim interests,the propertyshall possessionof propertyin which two ormore persons (one of (f) When in the course ofrepresentationa lawyer isin such property. person,shallpromptly rendera fullaccounting regarding entitledto receiveand upon requestby the clientor third any funds or otherpropertythatthe clientor thirdperson is lawyer shallpromptly deliverto the clientor thirdperson p. 18 16

(a) knowingly make a falsestatementofmaterialfact;or disciplinarymatter,shallnot: with a bar admission applicationor in connection with a An applicantfor admission to the bar,or a lawyer in connection

67. Rule 8.1 statesas follows:

66. The factssetforthabove are incorporatedby reference.

Rule 8.1: Bar Admission and DisciplinaryMatters

Chair granted hisrequestedreliefby liftingthe default.

includinghisfailureto timelyfilean Answer afterthe Hearing Panel

65. This failureresultedin furtherproblems in hisdisciplinarymatter,

correspondence from him.

Mr. Keenan was on noticethatshe had divertednumerous piecesof ADO

supportstaff,and to continue to allowher to bein charge ofmail,once

64. It was not reasonabletocontinueto employ Ms.Osborne as hisonly

been systematicallydivertinghiscorrespondence from the ADO.

Osborne afterhe was on notice,as of November 9, 20 p. 18 16, thatshe had

professionalobligationsand failed to takeremedialactionregardingMs.

to ensure thatMs. Osborne's conduct was compatible with his

63. Mr. Keenan violatedRule 5.3 when he failedto make reasonableefforts

Prof.Conduct 8.4(a).

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

71. Having found the foregoingviolation,thereisclearand convincing

reasonableremedial action."

when itsconsequences can be avoided or mitigatedbutfailsto take

authorityover the non-lawyer and "knows ofthe misconduct ata time

forthe conduct ofa non-lawyer where the lawyer has directsupervisory

to him under Rule 5.3(c)(2),which provides thata lawyer isresponsible

requestsforinformationfrom the disciplinaryauthority)can be imputed

70. Mr. Keenan agrees thatMs. Osborne's actsof divertingmail (i.e.ignoring

divertingADO correspondence from him.

circumstancesofthismatter)thathisemployee Ms. Osborne had been

he was on notice(and thus,could inferfrom such noticeand the

demands for informationfrom the ADO afterNovember 9, 2016, the date

69. Mr. Keenan violatedRule 8.1(b)by knowingly failingto respond to

inferredfrom the circumstances. See Rule 1.0(f).

68. The term "knowingly" not only includesactualknowledge, but knowledge

disciplinaryauthority. (c) failto attenda hearingwhen ordered to do so by a informationotherwise protectedby Rule 1.6;or except thatthisRule does not requiredisclosureof informationfrom an admissions or disciplinaryauthority, matter,or knowingly failto respond to a lawful demand for misapprehension known by the person to have arisenin the (b) failto disclosea factnecessaryto correcta p. 20 18

censure with conditionsisthe appropriatesanctionin thismatter. This

75. The Attorney DisciplineOfficeand Mr. Keenan jointlyagree thata public

going forward.

the filing.Mr. Keenan willbe personallyseeingto hison-lineTAC filing

requiringthatshe printout a confirmationfrom the StateBar website of

confirmationfrom Ms. Osborne thattheTAC had been filed,i.e.by

74. That said,Mr. Keenan acknowledges thathe should have required

was lying.

presentedwith circumstancesunder which he "should have known" she

been engaging in misconduct or dishonesty,nor ata time when he was

the earlyfall,ata time when he was not actuallyon noticethatshe had

concealment ofher misconduct throughout the summer of2016 and into

ofmind question,she was lyingto him and engaging in active

filedtheTAC in a timely fashion. Importantly,for purposes ofthe state

fileit. As describedabove, Ms. Osborne liedto Mr. Keenan thatshe had

Mr. Keenan's failureto filehisTAC because he did not "knowingly" fail to

73. The ADO has agreed to dismiss the Rule 3.4(c)violationarisingout of

"knowingly."

stateofmind as an essentialelement, i.e.itmay only be violated

obligationunder the rulesofa tribunal. . . ."The Rule thusincludes

72. Rule 3.4(c)providesthata lawyer shallnot "knowingly disobey an

C. Dismissed Rule Violations; Overdraft Issueand Rule 3.4(c) p. 21 19

existenceofany aggravatingor mitigatingfactors,and whether they

the Court then looks to the fourthand finalpartofthe analysis:the

the appropriatesanction").Once the baselinesanctionisdetermined,

thefirststepis tocategorizethe respondent'smisconduct and identify

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

characterizingthe misconduct and determining a baselinesanction. See

79. The firstthreepartsof the analysiscreatethe framework for

613, 621 (2007)); Standards § 3.0.

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

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

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

fourpartanalysisforcourtstoconsiderinimposing sanctions:"(a)the

guidance. Conner's Case, 158 N.H. at303. The Standards setfortha

78. Although the Court has not adopted the Standards, itlooks to them for

(2005).

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

Case, 158 N.H. 299, 303 (2009). "The sanction...musttake intoaccount

legalprofession,and preventingsimilarconduct in the future." Conner's

maintainingpublic confidence in the bar,preservingthe integrity of the

77. The purposeof theCourt'sdisciplinary power is "protecting the public,

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

76. Both case lawand the American Bar Association's Standardsfor

sanctionwould servethe purposes ofattorneydiscipline. p. 22 20

had alreadycaused him seriousharm.

he knew to be (atleastof November 9, p. 22 2016) a dishonestemployee that

because allmail (includingcourtorders)went through Ms. Osborne, who

Keenan's misconduct alsocaused potentiallysignificantharm to clients,

case thatbased on the ODN alone would likelyhave been diverted.Mr.

records,drafta Notice ofCharges, and empanel a Hearing Panel ~ for a

resourcesoftheADO, which was forced to subpoena and review bank

injuredthe legalsystem and the professionin thatitdivertedthe

superviseMs. Osborne resultedin seriousinjuryto himself,but italso

83. Mr. Keenan's conduct resultedin actualinjury.His failureto adequately

actualor potentialinjurycaused by Mr. Keenan's misconduct.

82. The thirdprong ofthe sanctionanalysisrequiresan assessment of the

from theADO.

knowledge thatMs. Osborne was divertingmail or telephone messages

Keenan's mental statewas knowing. Before thatdate he had no

sanctionanalysis,the partiesagree that,as of November 9, p. 22 2016, Mr.

81. With respectto Mr. Keenan's mental stateunder the second prong ofthe

the legalprofession.

80. Under the firstprong ofthe analysis,Mr. Keenan violateddutiesowed to

mitigatingfactorson the ultimatesanction").

sanction,[theCourt] considers]the effect ofany aggravatingor

affectthe baselinesanction. See id. (statingthat"[ajfterdetermining the p. 23 21

(emphasis added).

potentialinjuryto a client,the public,or the legalsystem. owed as a professional,and causes littleor no actualor determiningwhether the lawyer'sconduct violatesa duty engages in an isolatedinstanceofnegligencein 7.4 Admonition isgenerallyappropriatewhen a lawyer

injuryto a client,the public,or the legalsystem. owed as a professionaland causes injuryor potential negligentlyengages in conduct thatisa violationof aduty 7.3 Reprimand isgenerallyappropriatewhen a lawyer

injuryto a client,the public,or the legalsystem. duty as a professionaland causes injuryor potential knowingly engages inconduct thatisa violationofa 7.2 Suspension isgenerallyappropriatewhen a lawyer

legalsystem. potentiallyseriousinjuryto aclient,the public,or the for the lawyer or another,and causes seriousor owed as a professionalwith the intentto obtaina benefit knowingly engages in conduct thatis aviolationof aduty 7.1 Disbarment isgenerallyappropriatewhen a lawyer

the following sanctionsare recommended:

inconduct which is a violation oftheattorney'sdutiesas a professional,

under which to analyzesanctionsin thismatter. Ifan attorneyengages

assistants,the partiesagreethatSection7.2 isthe appropriatesection

Section 7.0 donot specifically include theethicalsupervisionofnon-legal

Professional."Although the examples ofmisconduct enumerated in

Standards. That Section isentitled"Violationsof Duties Owed as a

85. Mr. Keenan's 5.3 and 8.1 ruleviolationsimplicateSection7.0 of the

suspension. See Standards § 7.2.

84. The partiesagree thatthe baselinesanctionin thismatterisa p. 24 22

Committee acceptsthe Stipulation,and subsequent reports

within 60 days ofthe date thatthe ProfessionalConduct

reports,with thefirstreportto be provided to DisciplinaryCounsel

a. Respondent shallsupply DisciplinaryCounsel with quarterly

acceptsthisStipulation:

which shallbegin on the date the ProfessionalConduct Committee

90. Mr. Keenan agrees to comply with the following conditionsfor one year,

For AllegedViolationofConditions

E. Conditions ofImposed Disciplineand Procedures

sanctionin thiscase.

misconduct, willserve the purposes of disciplineand isan appropriate

censure,with conditionsaimed to preventa recurrenceof similar

Mr. Keenan's 30+ yearsof practicewith no disciplinaryhistory),a public

aggravatingand mitigatingcircumstancespresentin thiscase (including

89. The partiesagree thatgiven the baselinesanction,as well as the

Counsel, and remorse. See Standards § 9.32.

dishonestor selfishmotive, fulland freedisclosuretoDisciplinary

88. Mitigatingfactorsincludethe absence ofpriordiscipline,absence of a

substantialexperiencein the practiceof law.See Standards § 9. p. 24 22.

87. In thiscase thereisone aggravatingfactorpresent: Mr. Keenan's

Standard % 7.2.

aggravatingand mitigatingfactors. E.g.,Conner'sCase, 158 N.H.at303;

86. The baselinesanctionof suspensionmust be considered in light of any p. 25 23

determines thata conditionhas been violated,the Committee shall

enumerated atParagraph 90(a)-(b)have been violated. Ifit

Committee may determine whether any ofthe conditions

a. Upon motion by DisciplinaryCounsel, the ProfessionalConduct

atParagraphs 90(a)-(b) above, thefollowingshallapply:

91. If it is allegedthatMr. Keenan violatedany ofthe conditionsenumerated

one year period.

c. Respondent will engage in noprofessionalmisconduct duringthe

invoicefrom the PCC.

form of payment plan with thePCC within 60 days ofreceivingan

prosecution,and ifunable to pay inlump sum, shallagree to some

Conduct Committee in connection withthisinvestigationand

b. Respondent shallpay theexpensesincurredby the Professional

Counsel by Mr. Keenan.

quarterlyreportsshall besubmitteddirectly to Disciplinary

alternatively shall certify to theabsenceofsuch problems). The

and shall report any incidents or problems with the mail (or

The reports shallconfirmthatthe mailpolicyremainsineffect,

implicate the rules of professionalconductthatmay have arisen.

personnel,job performance or supervisionproblems which

employmentofMs. Eppersonisprogressingand shall describe any

theADO. The reportsshallsetforthin detailhow Mr. Keenan's

thereafter at quarterly intervals/deadlines thereafter as set forth by p. 26 24

ofthe stay("thesubsequent proceeding"),and the alleged

a. So long as a grievance or referralisfiledwithin the one-year period

thefollowing shallapply:

year periodofthe stay,thusimplicatingthe conditionatParagraph 90(c),

92. If anew grievance or referralisfiledagainstMr. Keenan during the one-

Hearing Panel.

pursuantto itsterms. The PCC shallreview the decisionofthe

has been violated,the Stipulationshallcontinuein force and effect

the Hearing Panel determines thatno conditionof the Stipulation

the Panel shallliftthe stayand impose a six-month suspension. If

c. Ifa Hearing Panel determines thata conditionhas been violated,

violated.

evidence thata conditionlistedin Paragraphs 90(a)-(b)has been

DisciplinaryCounsel to demonstrate by a preponderance of

violated.During such hearing,itshallbe the burden of

conditionunder Paragraphs 90(a)-(b)ofthisStipulationhas been

Panel may be appointed to decide the soleissueofwhether a

remand the matterto the Hearings Committee so thata Hearing

b. Respondent may requestthatthe ProfessionalConduct Committee

pursuantto itsterms.

been violated,the Stipulationshallcontinue in force and effect

Committee determines thatno conditionof thisStipulationhas

liftthe stayand impose the six-month suspension. Ifthe p. 27 25

Osborne, and such actswere undertaken ata time when Mr.

grievance or referralarose out of the actsor omissions by Ms.

supportinginformationor documentation. If,in fact,such

of the grievance or referral, time being ofthe essence, along with

to DisciplinaryCounsel within thirty(30) days ofreceiptofnotice

omissions by Ms. Osborne, Mr. Keenan shallprovide writtennotice

stay,and such grievanceor referralarose out ofthe actsor

f. If agrievance or referralisfiledwithin the one-year period ofthe

during the one year period of stay.

grievance or referralinvolvingconduct of Respondent occurring

e. Nothing hereinshallbe construedto limitprosecutionofany new

and enforcement ofthe terms and conditionsofthisStipulation.

d. The Respondent shallbear allcostsassociatedwith compliance

while the subsequent proceeding ispending.

Keenan willnot have tocontinue to comply with those provisions

c. Ifthe conditionsof Paragraphs 90(a)-(b)have been met, Mr.

matterunderlyingthisStipulationshallnot be closed.

b. Pending the finalresolutionofthe subsequent proceeding,the

of the stay.

proceeding,even ifsuch findingoccursbeyond theone-yearperiod

such time asthereis a finding ofmisconduct inthe subsequent

the staycan be lifted and thesix-monthsuspensionimposed at

misconductoccurred, at least in part,duringthe one-year period, p. 28 26

fullyaware ofthe consequences of the Stipulation.

he has a rightto obtaincounsel regardingthisStipulationand, thathe is

inducements not setforthin the Stipulation;thathe understandsthat

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

and voluntarilysubmitted;thathe isnot enteringthisStipulationas a

proposed dispositioncontainedin thisStipulationare freely,knowingly,

95. Mr. Keenan acknowledges thatthe admissions ofmisconduct and the

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

Conduct Committee) may accept,reject,or conditionallyacceptthe

disposition,and thatthe Hearing Panel (and thereafter,the Professional

94. Mr. Keenan understandsthatthisStipulationrepresentsa recommended

separateagreement signed by Mr. Keenan.

His agreement to pay the costsincurredby the ADO is the subjectof a

enforcementofthisdisciplinarymatter. See Supreme Court Rule 37(19).

agrees to pay the costsincurredby the ADO in theinvestigationand

93. Subjectto the PCC's approvalof Mr.Keenan's Stipulation,Mr. Keenan

any discipline.

course ofa hearing,such grievance or referralshallnot resultin

Osborne, whether as determinedby DisciplinaryCounsel or inthe

Keenan was not on notice of any personnelissuesregardingMs. p. 29 27

Dated iun 2017

Dated: jwl]>2fl/7<20l7

UsJULL H 2017Dated:

96. Mr. Keenan knowinglyandintelligentlywaiveshisrighttoa hearing. payment willbe due upon itsreceipt.

p. 30 a writtendecision.If I do not notify thecommittee thatIdisputethe bill,

understand thatthe Committee willconsiderthe disputeditem and issue

of thedisputein writingwithinthirtydays of my receiptof the bill. I

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

thismatter,I understand thatthe Committee willbillme for these

approximately$187.00. Should further costs accrue in this disposition of

As of March 20, 2017, I have been informed thatthe costsare

transcripts,copying,inventory,auditexpenses and publication.

Costs caninclude,but are not limited to: mileage,stenographers,

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

agree to pay the expenses incurred by the Committee in the investigation

Stipulation of Facts, RuleViolations,and Sanction in the above matter, I

Subject to the Professional Conduct Committee's approval of the

Attorney DisciplineOffice'scollectionefforts.

Ialsoagree to be responsiblefor allcostsincurredas a resultofthe

enforcementremediesand procedures. See Sup.Ct.R. 37(19)(c).

judgment and shall besubjectto alllegally-availablepost-judgment

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

The Committeemay filea copyofthefinalassessmentwiththesuperior

be enforced in any Superior Court inNew Hampshire.

shallhavethefullforceand effectofa civiljudgment.As a result,itmay

Iunderstand and agreethattheassessmentofcostsis deemed finaland

formal demand forpayment.

further detail of the nature and amount ofeachexpense,and I alsowaive

IwaivetheprovisionsofSupremeCourtRule37(19)(b)regardingany