David A. Horan (2017)

File David A. Horan, Esquire Sara S. Greene, Disciplinary Counsel Distribution:

July 18, 2017

Committee for all costs of investigation and prosecution of this matter. 1.1; 1.3; 1.15, 3.3, 8.4(c) and Sup. Ct. R. 50, as well as reimbursement of the "Rules") as stipulated and to recommend Disbarment for violations of Rules findings of violations of the New Hampshire Rules of Professional Conduct (the stipulated, by clear and convincing evidence. The Committee approved the Having reviewed the Record, the Committee approved the facts as

to Pay Costs of Disciplinary Matter (collectively, the "Record"). deliberated the Stipulation to Disbarment (the "Stipulation") and the Agreement On July 18, 2017, the Professional Conduct Committee (the "Committee")

Recommendation: Disbarment and Order on Costs

Horan., David A. advs. Attorney Discipline Office - #16-039

Margaret R. Kerouac Barbara J. Guay, Legal Assistant Richard H. Darling* * non attorney member Susan R. Chollet* Martha Van Oot Peter G. 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

letter dated March p. 2 15, 2017.

General Counsel, the matter was forwarded to Disciplinary Counsel•by

matter was docketed on October p. 2 18, 2016. After further investigation by

4. Mr. Horan provided a response to the ADO dated October p. 2 13, 2016. The

Horan's client trust account (CTA) was overdrawn.

3. On September 2 p. 2 1, 2016, the Bank of America notified the ADO that Mr.

Overdraft Notification/ADO Investigation

jurisdiction.

2. Mr. Horan has not been admitted to practice law in any other

Manchester, New Hampshire 03 p. 2 102.

is currently practicing law as a solo practitioner at 2 p. 2 12 Coolidge Avenue,

p. 2 1. Mr. Horan was admitted to practice law in New Hampshire in 1977. He

A. Horan, Esquire (Mr. Horan), and stipulate as follows:

Hampshire Supreme Court Attorney Discipline Office (ADO), along with David

NOW COMES Sara S. Greene, Disciplinary Counsel of the New

periods covering June 1, p. 3 2014 to May 31, 2016.

d. Filed false Trust Account Compliance Certificates for reporting

of trust;

account, including misappropriation, commingling, and being out

c. Committed myriad violations with regard to his client trust

filings;

guardianship matter, and consistently missed deadlines for such

b. Filed false accountings with the Probate Court in the MB

a. Misappropriated funds of MB, Mr. Horan's client and later ward;

7. As set forth more fully below Mr. Horan has:

Guardianship matter.

At the same time, she requested pleadings from the Probate Court for the

Account"), as well as further records for the CTA and operating account.

guardianship account that Mr. Horan created for MB (the "GDN

6. On May 30, p. 3 2017, Disciplinary Counsel subpoenaed bank records for a

p. 3 2014-G1-01892 (9th Circuit - Probate Division - Nashua).

Horan serves as guardian for MB ("the Guardianship"). Case. No. 316-

issues arose regarding Mr. Horan's handling of a matter in which Mr.

brink records, and meeting with Mr. Horan on May p. 3 26, 2017, additional

Horan's CTA as well as his operating account. After reviewing those

5. Disciplinary Counsel immediately subpoenaed bank records for Mr. p. 4 3

in his CTA and provide MB with $2,000 per month. Mr. Horan's hand-

MB agreed that Mr. Horan would hold the funds from the Prudential sale

14. Although there was no written agreement to this effect, Mr. Horan and

of David Horan." Mr. Horan also signed the back of the check.

1 p. 4 3. MB endorsed the Prudential check and signed the back "pay to the order

check over to Mr. Horan.

unwisely, and thus Mr. Horan convinced MB to sign the Prudential

that concerned Mr. Horan. MB was spending money erratically and

12. As of January 2014, MB was beginning to exhibit cognitive impairments

buy-back of Prudential shares of stock.

check for $ p. 4 32,299.90 made out to "[MB], MJB, Inc." to consummate the

11. The sale went forward, and on January 6, 2014, Prudential wrote a

new business and authorize the sale of shares.

conducting a Meeting of the Board of Directors of MJB, Inc., to conduct

an interest in buying back the shares. Mr. Horan assisted MB in

10. MJB, Inc. owned 489 shares of Prudential stock. Prudential expressed

9. Mr. Horan and MB never executed fee agreements of any kind.

asset."

allowing the corporation to collect and dispose of a newly discovered

corporation in good standing for over a decade, "for the purpose of

75, in reviving his corporation, MJB, Inc., which had not been a

8. As of December 201 p. 4 3, Mr. Horan was representing a client, MB, then age

Representation of MB Pre-Guardianship: 201 p. 5 4 Misappropriation 4

19. For all of 201 p. 5 4, the total amount that Mr. Horan paid MB was $6,550.

his agreement to pay MB a $2,000 monthly allowance out of the CTA.

this January payment, Mr. Horan at no point thereafter complied with

included a check for $2000 to MB dated January 21, 201 p. 5 4. Other than

MB a total of $3,800 for incidentals and personal expenses. This $3,800

18. During the same January to March 201 p. 5 4 time period, Mr. Horan paid

Sox season tickets.

c. Check for $2,080 to John Hession towards the purchase of Red

MB matter; and

b. Checks totaling $1,000 to himself, for fees allegedly earned in the

in the memo line;

a. Checks totaling $13,000 to himself, with no client matter identified

of the CTA without authorization of MB, as follows:

checks to himself (or for his personal expenses) disbursing $16,080 out

17. From January 1, 201 p. 5 4 through March 31, 2014, Mr. Horan wrote

CTA at any point from January 1, 201 p. 5 4 through March 31, 2014.

16. Other than the Prudential check, there were no deposits into Mr. Horan's

CTA on January 17, 201 p. 5 4.

$1.00. Mr. Horan deposited the Prudential check for $32,299.90 into his

15. The beginning balance of Mr. Horan's CTA as of January 1, 201 p. 5 4, was

stating "client agrees to $2K monthly allowance from my trust account"

written notes from a portion of his client file confirm this agreement, p. 6 5

with no client matter noted, for a total of $28,900. out of his CTA. In 2014, Mr. Horan wrote checks out of his CTA to himself, figure which Mr. Horan attributed to the matter on checks he wrote 1 This amount does not represent actual earned fees but rather represents a

201 p. 6 5 that he performed monthly reconciliations, was never out of trust,

Compliance Certificates for the period covering June 1, 2013 - May 31,

the MB matter, Mr. Horan certified on his two Trust Accounting

23. Despite these deficiencies in his record-keeping, and being out of trust in

of trust in the MB matter by at least $8,42 p. 6 5.50.

2014, however, Mr. Horan's CTA held only $1,924.40. He was thus out

CTA for the MB matter alone at the close of 2014. As of December 31,

minimum $10,349.90 that Mr. Horan should have been holding in his

($6, p. 6 550 to MB, plus $15,400 in alleged legal fees). This left at a

22. The total disbursements related to MB for all of 2014 were $21,9 p. 6 50

underlying file materials which could justify such a payment.

2014. He has never produced to the ADO work product or other

21. Mr. Horan had not earned $1 p. 6 5,400 in fees for representing MB during

the MB matter, but his time records note .8 hours spent on the case.

earned fees). Similarly, in May 2014, he paid himself $ p. 6 5,700 in fees for

2014 in the MB matter note .8 hours spent on the case (i.e. $140 in

$7,200 for work allegedly performed for MB. His time records for April

earned. For example, in April 2014 alone, Mr. Horan paid himself

matter in the memo line) was $1 p. 6 5,400.1 Many of these fees were not

for work for MB (i.e. where checks out of the CTA identified the MB

20. For all of 2014, the total amount Mr. Horan paid himself, in alleged fees p. 7 6

$50,000. The Order granting the Motion stated "Attorney Horan shall

27. The Court granted the Motion and accepted the personal surety bond for

$50,000.

court to allow him to post a personal surety bond in the amount of

the bond from two agencies, but was denied coverage. He asked the

Bond, in which Mr. Horan represented that he had attempted to obtain

2 p. 7 6. On January 8, 2015, Mr. Horan filed a Motion to Accept Personal Surety

misappropriated significant money from the proposed ward.

Mr. Horan was petitioning to be MB's guardian, he had already

condition that he obtain a $50,000 corporate surety bond. By the time

over the person and estate of MB, an incapacitated person, on the

hearing on.the same day, the Court appointed Mr. Horan as Guardian

25. Mr. Horan filed an appearance on October 31, 2014, and following a

being a possible danger to himself or others.

admission to Elliot Hospital due to his "presentation" as disoriented and

regarding MB. This Petition followed MB's involuntary emergency

Guardianship of an Incapacitated Person in Nashua Probate Court

24. On October 14, 2014, Earl S. Carrel, Esq. filed a Petition for

Misappropriation, False Accountings; Repeated Defaults on Guardianship of MB (October 2014 - Present': Further

Sup. Ct. R. 50.

and maintained all client funds "in full compliance" with Rule 1.15 and p. 8 7

him with this move and the necessary paperwork and application. 2 MB moved to Evergreen Place around February . 2015. Mr. Horan assisted

Representative Payee. Mr. Horan directed Mr. Luszey to use MB's Social

time, Gateways was receiving MB's monthly Social Security checks as

Community Sri -vice (Gateways) in Nashua, New Hampshire. At that

32. On July 2, 2015, Mr. Horan wrote to Diane Luszey at Gateways

cost over $5,500 per month.

was his residence at Evergreen Place,2 an assisted living facility, which

but was vacant and produced no income. MB's primary ongoing expense

Manchester, which was appraised in July 2016 with a value of $93,600,

month. He also owned outright a property on Spruce Street in

only income was social security income of approximately $2,144 per

31. Other than a few life insurance policies (addressed further herein), MB's

2015, and fining him an additional $50.

requiring Mr. Horan to personally appear before the Court on July 28,

2015. The Court therefore issued a Citation,on Failure to File Inventory,

30. Mr. Horan did not file the Inventory by the new deadline of June 2 p. 8 7,

2 p. 8 7, 2015 deadline for Mr. Horan to file the Inventory.

$25 late fee citation on May 28, 2015. The Notice of Default set a June

file the Inventory by that date. The Court issued a Notice of Default and

29. The Guardian's Inventory was due April 20, 2015. Mr. Horan failed to

28. Mr. Horan never filed the Affidavit regarding his malpractice coverage.

liability insurance coverage."

file an affidavit within 30 days stating the status of his professional p. 9 8

(addressed infra) that he opened in late July 2015. social security benefit via direct deposit into a guardianship account effectuate this change until April 2016, at which time he began receiving MB's [Gateways] . . then closing the account [MB] has with you," Mr. Horan did not Security Administration to redirect future checks to me as opposed to was now MB's guardian and would "be filing an application with the Social 3 Although Mr. Horan had informed Ms. Luszey on January 26, 2015 that he

resided.

Nursing and Rehabilitation Services LLC, where MB had`previously

form of a check for $257.75, a reimbursement check from Bedford

and David A. Horan, GDN." It was opened with an initial deposit in the

funds of MB at TD Bank, Acct. No. XXX-XXX0 p. 9 823, in the name of "[MB]

36. On July 31, 2015, Mr. Horan opened a guardianship account to hold

$2,400.03.

had a balance of $1,900.63. As of January 21, 2015 the balance was

35. This representation was false. As of January 16, 2015, Mr. Horan's CTA

Horan in his IOLTA account at Bank of America, balance as of 1/20/15.*

Court that he held in trust for MB $17,140.90 as "money held by David

34. On the Inventory filed on July 27, 2015, Mr. Horan represented to the

cancelled the July 2 p. 9 8, 2015 hearing.

33. Mr. Horan filed the overdue Inventory on July 27, 2015. The Court

misappropriation.3

date, MB had no funds in Mr. Horan's CTA due to Mr. Horan's

Payment to Evergreen directly by Gateways was required because by this

Security funds to pay Evergreen Place for an invoice totaling $5,520.19. physician, for a total of $12,5 p. 9 88.51. On November 16, 2015, he also

p. 10 Evergreen for a large past-due balance owed, as well as to a treating

43. From this amount, Mr. Horan immediately made disbursements to

$20,000 into the GDN account, bringing the balance to $20,080.43.

42. On November 9, 2015, Mr. Horan deposited a check from Prudential for

Horan to "cash in" the life insurance policy.

41. The court granted the motion on October 20, 2015, authorizing Mr.

policies owned by MB) and the October 2015 motion.

inventory (which failed to mention this and two other life insurance

Horan claimed to have discovered sometime between the filing of his

Prudential life insurance policy owned by MB, the existence of which Mr.

2015 requesting an order authorizing him to borrow $20,000 from a

40. Mr. Horan therefore filed a motion with the probate court on October 9,

with essentially no cash on hand for his ward.

the sale of Prudential stock (supra vg 15-22), Mr. Horan found himself

misappropriated from the CTA a significant portion of MB's funds from

39. As of October 7, 2015, the GDN account balance was $90.43. Having

August 28, 2015 for $157.33.

disbursement for the benefit of MB, a check to Evergreen Place dated

withdrawals for routine bank service charges, Mr. Horan made one

38. For the next approximately four months, other than $10 monthly

there were no funds of MB left in the CTA.

37. No funds from the CTA were transferred to the GDN account because p. 11 10

$8,589.13 into the GDN account.

On April 15, 2016, Mr. Horan deposited two Prudential checks totaling

48. The Motion to Sell Personal Property was granted on March 15, 2016.

purchased from Prudential.

The Motion addressed two additional whole life policies that MB had

Probate Court, on March 4, 2016, a Motion to Sell Personal Property.

ward, Mr. Horan's ward was "illiquid." Mr. Horan had filed with the

47. Having again misappropriated a significant portion of the funds of his

2016.

deposited $2,500 of his own funds into the GDN account on April 8,

to immediately "fund" the low-balance GDN account, Mr. Horan

46. By April 8, 2016, the balance in the GDN account was $30.68. In order

the benefit MB.

disbursements. In the same period, he paid out a total of $13, p. 11 101.79 for

of $7,750. He had no approval from the Probate Court to make these

7, 2016, Mr. Horan disbursed from the GDN account, to himself, a total

45. From November 9, 2015, the date of the $20,000 deposit, through April

2016. Mr. Horan did not file them in a timely manner.

44. The Annual Report and (First) Accounting were due on January 20,

Probate Court to make this disbursement.

memo noting "reimbursement." Mr. Horan had no approval from the

disbursed $1,500 from the GDN account to himself, in a check with a p. 12 11

from his CTA (total of $2,630 from January to August 2015).

November to December 2015); four of the checks were disbursed

were disbursed from the GDN account (total of $2,700 from

"MB" in the memo line, was actually $5,330. Two of these checks

Mr. Horan paid himself during 2015, in six separate checks noting

fees of $1200 and attorney's fees of $90. The total amount that

b. That during the reporting period, Mr. Horan had taken guardian

31, 2015. The actual balance as of that date was $4,603.51.

a. That the GDN account had a balance of $6,103.51 as of December

contained the following misrepresentations:

January 20, 2015 through December 31, 2015. The (First) Accounting

Report and paid $150 in fines. The Accounting covered reporting period

51. On July 6, 2016, Mr. Horan filed the (First) Accounting and Annual

appear and explain why the documents had not been filed.

Citations set a July 7, 2016 hearing at which Mr. Horan would have to

to File Annual Report (and a separate Citation for the Accounting). The

deadline, and on June 14, 2016, the Court issued a Citation on Failure

50. Mr. Horan did not file the Accounting and Annual Report by that .

fined Mr. Horan, and set a deadline of May 28, 2016 for filing them.

Report and (First) Accounting which were due on January 20, 2015,

guardian fees, was left blank. The clear inference from this is that

a. Schedule 4 in the Disbursements section, addressing attorney and

57. The Second Accounting contained the following misrepresentations:

2016.

the Second Accounting was January 1, 2016 through December 31,

subpoenaed bank records for the GDN account. The reporting period for

he was under investigation by the ADO and was aware that the ADO had

56. Mr. Horan filed the Second Accounting on June p. 13 12, 2017. By this time,

May 11, 2017.

Report and Second Accounting. The Court issued Default Notices on

55. Mr. Horan again defaulted in 2017, when he failed to file a timely Annual

transfer from Mr. Horan's operating account, and $1,720 was cash.

$15,570 of his own funds into the GDN: $13,850 was via electronic

Thus, in order to pay the $22,000 to Evergreen, Mr. Horan deposited

balance in the GDN account as of October 7, 2015 was $4,605.01.

because Mr. Horan had not paid Evergreen on a monthly basis. The

of MB via a bank check. This was a large past-due balance owed

54. On October 26, 2016, Mr. Horan paid Evergreen Place $22,000 on behalf

Accounting.

53. On August 8, 2016, the Court allowed both the Annual Report and First

Fees.

were disbursed, nor had Mr. Horan ever filed any Motion for Interim

52. The Probate Court had not approved any of these fees at the time they p. 14 13

has made unauthorized disbursements from the guardian's estate, then

actual income to the ward, not "net" amounts received after a guardian

"reporting" payments to himself in Schedule G (which contemplates

58. By leaving Schedule 4, which calls for disclosure of fees, blank, and

the GDN account were to himself.

own funds), and without disclosing that the disbursements from

the source of the two contributions to the GDN account (i.e. his

made in to Guardianship Account," without separately disclosing

Accounting, he characterized this amount as a "Net Contributions

$ p. 14 13,320. In an explanatory addendum attached to the Second

in the Second Accounting, Mr. Horan disclosed an amount of

the funds and the amount received." In the Schedule G line item

estate with a description including the date received, the source of

form, "all other contributions and income received by the ward's

from other sources." Schedule G should include, per the Court's

b. Mr. Horan "buried" these payments in Schedule G, "Cash received

memo line, for a total of $7,850.

various checks he wrote out to himself with no memo noted in the

had also disbursed to himself an additional $6,150 through

$1,700 in "atty fees" (i.e. checks noted fees in the memo line), and

fact, Mr. Horan had, in 2016, paid himself out of the GDN account

Mr. Horan took no fees of any kind in the MB guardianship. In p. 15 14

time entries produced by Mr. Horan.

61. The ADO requested, but never received, the entire MB file to back up the

order to make these payments, many of which were consistently late.

funds, he had to reimburse the GDN account on multiple occasions in

Horan, although as noted herein, having misappropriated some of MB's

Mr. Horan paid medical providers and nursing homes on behalf of Mr.

corporation for purposes of selling the Prudential stock it owned in. 20 p. 15 14.

work on behalf of MB. For example, he assisted MB in reviving his

The ADO's review of a portion of the MB file does evidence some legal

to demonstrate work performed for MB, mostly for the guardianship.

from 20 p. 15 14 through 2016. He produced time slips to the ADO purporting

60. Mr. Horan maintains that he did a substantial amount of work for MB

Compliance Certificates June 1, 2015 through May 31, 2016.

59. Mr. Horan never listed the GDN Account on any of his Trust Account

misrepresentation.

replenished some of them), Mr. Horan engaged in dishonesty and p. 16 15

account. review of all client files for which retainers were placed in the operating accounting before they were earned, nor has the ADO conducted an exhaustive fact, however, that he improperly deposited entire retainers into his operating Mr. Horan ultimately earned the retainers at issue. This does not alter the immediately into his operating account. That review generally confirmed that of the cases for which Mr. Horan received retainers and deposited them 5 The ADO reviewed a sampling of client files and related time slips for several ADO, however, were not documented in this Receipt Book. evidenced by the bank records, and which were the subjects of inquiry by the cash received by his firm from clients. Many of the cash transactions 4 Mr. Horan produced a hand-written Receipt Book purporting to document

only a handful of retainers into the CTA.

the same October 20 p. 16 15 - October 2016 time period, Mr. Horan deposited

account into which he routinely placed client retainers.5 By contrast, in

64. Mr. Horan treated the operating account as a de facto client trust

identified a client matter to which they pertained.4

operating account were cash deposits totaling $17,750, none of which

amounts ranging from $1,000 to $5,000. Sixteen deposits into the

operating account rather than into his CTA, in over 50 transactions in

$100,000 of client retainers (i.e. monies not yet earned) into his

63. Froth October 20 p. 16 15 through October 2016, Mr. Horan deposited over

operating account, and by depositing his personal funds into his CTA.

with those of his clients, both by depositing unearned retainers. into his

October 31, 2016, Mr. Horan routinely commingled his personal funds

62. Bank records demonstrate that for the time period October p. 16 15, 2015 to

Client Trust Account Generally 120 p. 16 15-20 p. 17 16): Commingling 16

satisfy the obligation. Specifically:

hand in the CTA to cover the amount, thereby utilizing clients' funds to

earned fees that Mr. Horan failed to timely transfer out of the CTA) on

insufficient personal funds (i.e. whether friends' personal funds or

further below, he wrote this check at a point in time when there were

$12,500 to the Boston Red Sox for 20 p. 17 16 season tickets. As set forth

68. On December 17, 2015, Mr. Horan wrote a check out of the CTA for

game days.

and thereafter he and his friends would divide up tickets for particular

the purchase price of Red Sox tickets, he would purchase the tickets,

67. Mr. Horan had an arrangement whereby his friends would contribute to

a personal expense, i.e. Red Sox season tickets.

friends (i.e. non-client monies), into the CTA for the purpose of paying for

and 20 p. 17 16 he deposited his own funds, as well as the funds of various

issued payment for a personal expense out of the CTA, when in 2015

66. In addition, Mr. Horan deposited personal funds into the CTA, and

deposited it into his CTA on September 2, 20 p. 17 16.

b. He wrote a check for $3,000 from his operating account and

deposited it into his CTA on July 20, 20 p. 17 16;

a. He wrote a check for $1,000 from his operating account and

his own funds into the CTA as follows:

65. Mr. Horan further commingled client and personal funds by depositing p. 18 17

friends totaling $7,336 for the purpose of buying Red Sox tickets;

g. On December p. 18 17, 2015, Mr. Horan deposited four checks from

clients) to whom these funds pertained;

not for purposes of this disciplinary matter, identify the client (or

totaling $3,600 into the CTA. He did not at that time, and could

f. On December 16 and p. 18 17, 2015, Mr. Horan made two cash deposits

The balance is the CTA was now $623.69;

client matter (or matters) to which this disbursement pertained.

the CTA to himself for $1,500. This check did not identify the

e. The same day, December 7, 2015, Mr. Horan wrote a check out of

deposited in Mr. Horan's operating account as earned fees);

back balance owed by client TF (and thus should have been

dollars ($200) of these funds was actually a payment towards a

CTA for three client matters, for a total of $1,700. Two hundred

d. On December 7, 2015, Mr. Horan deposited three checks into the

December 7, December 16 and December p. 18 17;

c. Mr. Horan deposited funds into the CTA on three dates thereafter:

now $423.69;

to which this disbursement pertained. The balance in the CTA was

$1,000. This check did not identify the client matter (or matters)

b. On December 2, 2015, he wrote a check out of CTA to himself for

was $1,423.69;

a. the beginning balance in Mr. Horan's CTA as of December 1, 2015 p. 19 18

deposited three checks totaling $1,000 into the CTA. The funds

c. Between September 13 and September 14, 2016, Mr. Horan

due on September 15, 2016, would clear;

purpose of this deposit was to ensure that a check to the Red Sox,

funds into the client trust account. He stated to the ADO the

b. On September 2, 2016, Mr. Horan deposited $3,000 of his personal

$109.69;

a. The beginning balance in the CTA on September 1, 2016 was

commingled personal funds with client funds in so doing.

the CTA to cover the entire check to the Red Sox, but nonetheless

tickets. In this instance, Mr. Horan placed enough of his own funds into

CTA, this time to hold funds for the purpose of buying Red Sox playoff

69. In 2016, Mr. Horan again deposited his and his friends' funds into the

client money as an "advance."

if Mr. Horan ultimately earned the $4,964, lawyers cannot use

misappropriated to satisfy the $12,500 check to the Red Sox. Even

j. This leaves $4,964 of client funds in the CTA that were

TF matter;

from friends for Red Sox tickets plus the $200 of earned fees in the

17, 2015 was $7,536. This figure is the sum of the four checks

i. The total amount of "non-client" funds in the CTA as of December

GDN account into the CTA with a memo line reading "attys fees;"

h. On December 17, 2015, Mr. Horan deposited $1,200 from the MB p. 20 19

$1,500;

b. On December 7, 2015, Mr. Horan wrote a check to himself for

$1,000;

a. On December 2, 2015, Mr. Horan wrote a check to himself for

follows:

identifying a client matter to which the disbursement pertained, as

73. Mr. Horan repeatedly wrote checks to himself out of the CTA without

without identifying any client matter pertaining to this disbursement.

72. Mr. Horan withdrew $700 in cash from his CTA on September 13, 2016

2016.

the funds of other clients to satisfy the $1,000 payment on September 6,

71. Mr. Horan was thus "out of trust" as to the Rumph matter, and utilized

paid by Mr. Rumph into his operating account on April 6, 2016.

Rumph's funds into his CTA. Rather, he deposited a $2,000 retainer

Rumph was a client, but Mr. Horan had never deposited any of Mr.

CTA for $1,000. The memo line on the check read "Rumph." Mr.

70. On September 6, 2016, Mr. Horan wrote a check to himself out of the

Withdrawals and Deposits, Out of Trust in Client Matters, and Client Trust Account Generally (2015-2016): Unidentified Cash

out of the CTA for $2,852.50 for playoff tickets.

d. On September 14, 2016, Mr. Horan wrote a check to the Red Sox

Sox playoff tickets;

were from friends who were contributing towards the cost of Red p. 21 20

the CTA; and

h. On September 15, p. 21 2016, Mr. Horan deposited $300.00 in cash into

the CTA;

g. On September 14, p. 21 2016, Mr, Horan deposited $100.00 in cash into

1. On July p. 21 20, 2016, Mr. Horan deposited $2,000.00 in cash into the

e. On April p. 21 20, 2016, Mr. Horan deposited $2,000.00 in cash into the

into the CTA;

d. On December 17, p. 21 2015, Mr. Horan deposited $1,600.00 in cash

into the CTA;

c. On December 16, p. 21 2015, Mr. Horan deposited $2,000.00 in cash

the CTA;

b. On October 13, p. 21 2015, Mr. Horan deposited $5,000.00 in cash into

a. On October 1, p. 21 2015, Mr. Horan deposited $500.00 in cash into the

any client matter as follows:

total of $13,600 cash into his CTA without attributing these deposits to

74. From October 1, p. 21 2015 through October 31, 2016, Mr. Horan deposited a

e. On August 2, p. 21 2016, Mr. Horan wrote a check to himself for $750.

and

d. On July 29, p. 21 2016, Mr. Horan wrote a check to himself for $750;

c. On July 28, p. 21 2016, Mr. Horan wrote a check to himself for $1,500; p. 22 21

times due to his filing the following pleadings in an untimely

timely and effective manner when Mr. Horan defaulted multiple

schedules of the matter or undertake action on MB's behalf in a

and promptness, and by failing to attend to the details and

a. by failing in the MB guardianship to act with reasonable diligence

78. Rule 1.1 (competence) and Rule 1.3 (diligence):

clear and convincing evidence based on the facts stipulated to herein:

77 Mr. Horan agrees that the following Rule violations could be proven by

Sup. Ct. R. 50.

and maintained all client funds "in full compliance" with Rule 1.15 and

2016 that he performed monthly reconciliations, was never out of trust,

Compliance Certificate for the period covering June 1, 2015 — May 31,

on client matters, Mr. Horan certified on his Trust Accounting

76. Despite these deficiencies in his record-keeping, and being out of trust

required by Sup. Ct. Rule 50(2)(B).

point. Mr. Horan has abdicated all of his duties of record-keeping

and failed to perform monthly reconciliations of his firm's CTA at any

recorded deposits to and withdrawals from each client trust account,

75. Mr. Horan did not keep individual client ledgers of any kind which

the CTA.

i. On September 26, 2016, Mr. Horan deposited $100.00 in cash into p. 23 22

misrepresentation):

81. Rule 8.4(c) (conduct involving dishonesty, deceit, fraud, or

Accountings with the Probate Court in the MB matter;

b. By filing a knowingly false inventory and two knowingly false

covering periods June 1, 2013 - May 31, 2016;

a. By filing three (3) knowingly false Trust Accounting Certificates

80. Rule 3.3 (Candor to the Tribunal):

the CTA, and by commingling his personal funds with those of MB;

b. by misappropriating the funds of MB from the GDN account and

perform monthly reconciliations;

deposits pertained, and failing to maintain client ledgers or

identifying the client matter to which such withdrawals and

engaging in many cash withdrawals and deposits without

misappropriating client funds to purchase Red Sox tickets,

with client funds, being out of trust on a client matter,

taking fees before they were earned, commingling his own funds

a. by engaging in the following conduct with regard to his CTA:

requirements):

79. Rule 1.15 (safekeeping property) and Sup. Ct. Rule 50 (record-keeping

and the Annual Report and (Second) Accounting;

fashion: the Inventory, the Annual Report and (First) Accounting, p. 24 23

86. In deciding both to sign this Stipulation to Disbarment, and to waive

Sup. Ct. R. 37 and 37A, including specifically Rule 37(16).

85. Mr. Horan further waives any and all of his procedural rights under N.H.

him,

both the state and federal constitutions on the matters pending against

84. In so doing, Mr. Horan waives any and all of his due process rights under

pay costs is the subject of a separate agreement with the ADO.

investigation and pursuit of this disciplinary matter. His agreement to

83. Mr. Horan agrees to pay the costs incurred by the ADO in the

Fitness.

case this matter may be presented to the Committee on Character and

disciplinary matter, including any application for readmission, in which

admissions as contained in this Stipulation for purposes of any

82. Mr. Horan understands that he will be bound by his representations and

operating account retainers not yrt earned.

d. By misappropriating client funds by depositing directly into his

or matter;

from the client trust account that were not attributable to a client

c. By misappropriating client funds by issuing payments to himself

b. By filing false pleadings with the Probate Court as set forth herein;

2017;

from the GDN account, from January 2014 through at least March

a, By misappropriating the funds of MB, first from the CTA and then p. 25 24

discipline' matter:

Supreme Court impose an Order of Disbar merit in this attorney

Committee to recommend to the New Hampshire Supreme Court that the

appropriate sanction for his intentional misconduct, and asks the

87 Mr. Horan consents to, disbarment, concedes that disbarment is the

without coercion or inducement of any kind.

of counsel. He signs this Stipulation knowingly and intelligently.

these rights, Mr. Horan has been informed that he may seek-the .advice payment will be due upon its receipt.

p. 26 a written decision. If I do not notify the committee that I dispute the bill,

understand that the Committee will consider the disputed item and issue

of the dispute in writing within thirty days of my receipt of the bill. I

costs. If I dispute the bill, I will notify the Committee of the specific nature

this matter, I understand that the Committee will bill me for these

approximately $766.56. Should further costs accrue in this disposition of

2. As of June 23, 2017, I have been informed that the costs are

audit expenses and publication.

not limited to: mileage, stenographers, transcripts, copying, inventory,

disciplinary matter. See Sup. Ct. R. 37(19)(b). Costs can include, but are

incurred by the Committee in the investigation and enforcement of this

Stipulation to Disbarment in the above matter, I agree to pay the expenses

1. Subject to the Professional Conduct Committee's approval of the

NEW HAMPSHIRE SUPREME COURT p. 27 Respondent David A. Horan, Esquire Dated: 1.'4-1.-22'320.17

Attorney Discipline Office's collection efforts.

6. I also agree to be responsible for all costs incurred as a result of the

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

judgment and shall be subject to all legally-available post-judgment

court in any county in the state, where it shall be docketed as a final

5. The Committee may file a copy of the final assessment with the superior

be enforced in any Superior Court in New Hampshire.

shall have the full force arid effect of a civil judgment. As a result, it may

4. I understand and agree that the assessment of costs is deemed final and

formal demand for payment.

further detail of the nature and amount of each expense, and I also waive

3. I waive the provisions of Supreme Court Rule 37(19)(b) regarding any