Mark E. Wolterbeek (2005)

http://www.nh.govjjudiciary/supreme/opinions/2005/woltel18.htm10/31/2005

On October 1Q, 1995, the respondent, his wife and George Chapman signed a

this, Shawmut Bank became disinterested in holding record title to the property. underground storage tanks that were once located on the property. Largely due to The respondent informed Shawmut Bank of his concerns .about gasoline pumps and Grocer and, in October 1995, held a foreclosure sale at which there were no bidders. At the same time, Shawmut Bank was in the process of foreclosing on the Village

file for bankruptcy. 1995, aware of Schneider's financial difficulties, the respondent advised Schneider to Grocery Store and its premises (collectively referred to as the"Village Grocer"). In late respondent's law office. In the divorce decree, Schneider was awarded the Village Grocery Store in Rindge since 1985, which was in the same building as the Richard Schneider in his divorce. Schneider and his then-wife had owned the Village The committee found the following facts. In 1995, the respondent represented

We order the respondent disbarred. respondent, Mark E. Wolterbeek, be suspended from the practice of law for two years. Committee (committee) filed a petition with this court recommending that the DUGGAN, J. On February 14,2005, the Supreme Court Professional Conduct

brief and orally), for the respondent. Elliott, Jasper, Auten, Shklar & Anderson, LLP, of Newport (Michael C. Shklar on the

conduct committee. Landya B. McCafferty, of Concord, on the brief and orally, for the professional

No. LD-2005-002

Original

page is: http://www.courts.state.nh.us/supreme. by 9:00 a.m. on the morning of their release. The direct address of the court's home following address: reporter@courts.state.nh.us. Opinions are available on the Internet be made before the opinion goes to press. Errors may be reported by E-mail at the Concord, New Hampshire 03301, of any editorial errors in order that corrections may requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as

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p. 2 information not previously disclosed. Schneider first learned of the respondent's motion to reopen Schneider's bankruptcy case based upon the discovery of On August 4, 2003, United States Trustee Geraldine B. Karonis filed an ex ~

also filed the"Corrective Quitclaim Deed" with the registry of deeds. partner. The respondent's wife had withdrawn from the partnership. The respondent affidavit listed the respondent as a general partner and Chapman as a limited Partnership""vas L~e Sai'TIe entiry as trREMY Real Estate Limited Partnership. II The with the Cheshire County Registry of Deeds clarifying that"REMY Limited secured by the Village Grocer. The following day, the respondent filed an affidavit terms ofthe refinancing agreement, REMY received an additional loan of $125,000 On May 13, 2003, REMY refinanced the mortgage held by Granite Bank. By the

Partnership." Schneider was still unaware of the respondent's interest in REMY. name of the grantee from"REMY Limited Partnership" to"REMY Real Estate Limited he met with the respondent and signed a"Corrective Quitclaim Deed" amending the In the fall of 2002, Schneider moved back to New Hampshire. On October 10, 2002,

Chapman as limited partner. Secretary of State listing the respondent and his wife as general partners and Granite Bank. The next day, REMY filed a certificate of Limited Partnership with the On April 8, 1996, REMY obtained a $75,000 loan secured by the Village Grocer from

received a discharge in bankruptcy. mid-November 1995, Schneider moved to Florida. On February 6, 1996, Schneider quitclaim deed or that REMY had acquired the mortgages from Shawmut Bank. In Shawmut Bank had foreclosed on the Village Grocer but did not mention the sales within one year preceding filing of the petition, the petition stated that of the Village Grocer to be $25,000. In response to a question concerning foreclosure on the Village Grocer in the amount of $169,276.98 and estimated the market value concerning secured claims, the petition listed Shawmut Bank as having a mortgage commencement of this case," the petition stated"none." In a section of the petition either absolutely or as security within one year immediately preceding the of the bankruptcy petition asking the debtor to list"all other property ... transferred at which time Schneider still held record title to the Village Grocer. In another section time. However, Schneider had executed the bankruptcy petition on October 27, 1995, behalf of Schneider. The petition stated that Schneider owned no real estate at the On November 3, 1995, the respondent filed a petition with the bankruptcy court on

was unaware that the respondent and his wife were involved in REMY. signed the deed and the respondent and his wife witnessed the signatures. Schneider 1995, transferring title to the Village Grocer to REMY. Schneider and Chapman The respondent then drafted a quitclaim deed that Schneider signed on October 31,

REMY as a"group of investors." reveal to Shawmut Bank that he was one of REMY's partners and instead described Village Grocer. During the negotiations with Shawmut Bank, the respondent did not 30, 1995, REMY paid Shawmut Bank $25,000 for the three mortgages it held on the partnership was not registered with the Secretary of State at that time. On October partnership agreement forming the REMY Limited Partnership (REMY). The

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p. 3 representation of a client knowing that the lawyer's interests are adverse to the warranted"when a lawyer, without the informed consent of client(s) ... engages in injury or potential injury to a client." Standards, supra § 4.32. Disbarment is and does not fully disclose to a client the possible effect of that conflict, and causes Standards, suspension is warranted"when a lawyer knows of a conflict of interest knowledge of the consequences." N.H. R. Prof. Conduct 1.7(b)(2). According to the Schneider, making it impossible for him to consent"after consultation and with waived the conflict of interest, the respondent did not disclose its existence to interest in violation of Rule 1.7(b). They stipulate that even if Schneider could have and becoming a holder of notes on which Schneider was an obligor was a conflict of First, the parties stipulated that acquiring the three mortgages from Shawmut Bank

categories. Standards, supra, Methodology. Here, the respondent's misconduct falls into three the effect of any aggravating or mitigating factors on the ultimate sanction. and identify the appropriate sanction. After determining the sanction, we consider In applying these factors, the first step is to categorize the respondent's misconduct

125 S. Ct. 97 (2004). factors." Standards, supra § 3.0; see Kersey's Case, 150 N.H. 585, 587, cert. denied, by the lawyer's misconduct; and (d) the existence of aggravating or mitigating duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused Standards list the following factors for consideration in imposing sanctions:"(a) the guidance. Feld's Case, 149 N.H. 19,28 (2002), kITt. denied, 540 U.S. 815 (2003). The We look to the ABA Standards for Imposing Lawyer Sanctions (1992) (Standards) for

circumstances. Flint's Case, 133 N.H. 685, 689 (1990). deciding the appropriate sanction, we consider the case on its own facts and so, the appropriate sanction." Richmond's Case, 152 N.H. 155, 158 (2005). In facts found, a violation of the rules governing attorney conduct has occurred and, if supported by the record, but retain"ultimate authority to determine whether, on the In attorney discipline matters, we defer to the committee's factual findings if

us is whether to adopt the recommended sanction. court suspend the respondent from practicing law for two years. The sole issue before panel's recommendation. The committee then filed a petition requesting that this 2, 2004 written decision. After reviewing the record, the committee adopted the hearing panel of the committee recommended a two-year suspension in a December that the respondent should be suspended from the practice of law for two years. A violated Rules of Professional Conduct 1.7(b), 1.8(a), 3.3(a)(I), 8.4(c) and 8.4(a), and stipulation that there was clear and convincing evidence that the respondent had Immediately before the hearing, the respondent and the ADO entered into a (i). A hearing on the motion to dismiss was scheduled for November 19, 2004. charges, arguing they were barred by the statute of limitations. See Sup. Ct. R. 37 A(I) issued a notice of charges. The respondent then filed a motion to dismiss the between 1994 and 1996. On October 20,2004, the Attorney Discipline Office (ADO) professional misconduct by the respondent based upon the events that occurred On September 24, 2003, Schneider filed a complaint with the committee alleging

interest in REMY during subsequent discussions at Karonis' office.

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p. 4 oversight, but did so with knowledge of the bankruptcy petition's misleading nature the respondent did not make misleading statements and omissions through mere petition and failing to subsequently correct it. The facts in the record support that The respondent violated his duty to the legal system by submitting a misleading

the legal proceeding." Standards, supra § 6.11. injury to a party, or causes a significant or potentially significant adverse effect on improperly withholds material information, and causes serious or potentially serious intent to deceive the court, makes a false statement, submits a false document, or 6.12. The Standards advise that disbarment is appropriate"when a lawyer, with the adverse or potentially adverse effect on the legal proceeding." Standards, supra § causes injury or potential injury to a party to the legal proceeding, or causes an material information is improperly being withheld, and takes no remedial action, and knows that false statements or documents are being submitted to the court or that Rule 3.3(a)(1). According to the Standards, suspension is appropriate"when a lawyer and provide complete answers to questions in the bankruptcy petition in violation of Finally, the parties stipulated that the respondent failed to disclose material facts

the Standards. intention of benefiting himself. The respondent's actions warrant disbarment under the respondent violated his duty to his client and deceived Schneider with the client, the public, or the legal system." Standards, supra § 7.1. The facts show that benefit for the lawyer or another, and causes serious or potentially serious injury to a conduct that is a violation of a duty owed as a professional with the intent to obtain a supra § 4.61. Disbarment may also result"when a lawyer knowingly engages in or another, and causes serious or potentially serious injury to a client." Standards, disbarred"when [he] knowingly deceives a client with the intent to benefit the lawyer client, the public or the legal system." Standards, supra § 7.2. A lawyer may be a violation of a duty owed as a professional and causes injury or potential injury to a Suspension is also appropriate"when a lawyer knowingly engages in conduct that is client, and causes injury or potential injury to the client." Standards, supra § 4.62. to the Standards, suspension is appropriate when a lawyer"knowingly deceives a dishonesty, fraud, deceit and misrepresentation in violation of Rule 8.4(c). According respondent's failure to disclose his interest in REMY to Schneider constituted respondent's involvement in REMY. Further, the parties stipulated that the transferred title in the Village Grocer to REMY while Schneider was unaware of the the respondent violated this rule by drafting the quitclaim deed whereby Schneider purchase to Schneider, the respondent violated Rule 1.8(a). They also stipulated that from Shawmut Bank on behalf of REMY without disclosing his involvement in that Second, the parties stipulated that by acquiring the three Village Grocer mortgages

disbarment is the appropriate sanction. benefit himself at Schneider's expense. Based upon the respondent's misconduct, Schneider in pursuit of personal financial gain strongly suggest that he intended to not stipulate to the respondent's mental state, but the respondent's acts of deceiving benefit himself. Here, the respondent violated his duty to his client. The parties do between the lawyer and the client and whether the lawyer acts with the intention to distinction between suspension and disbarment is whether the conflict of interest is potentially serious injury to the client." Standards, supra § 4.31(a). The critical client's with the intent to benefit the lawyer or another, and causes serious or

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p. 5 the respondent violated Rule 8.4(c) by deceiving his client and the bankruptcy court in submitting materially misleading responses to questions in the petition. Finally, his client. He violated Rule 3.3(a)(l) by intentionally deceiving the bankruptcy court Rule 1.8(a) by acquiring the three mortgages and becoming a holder of notes owed by conflicts of interest and failing to obtain his client's informed consent. He violated violated New Hampshire Rule of Professional Conduct 1.7(b) by failing to avoid Standards, supra § 9.22(d); Richmond's Case, 152 N.H. at 161. The respondent The respondent's multiple offenses in this case are another aggravating factor. See

constitutes an aggravating circumstance. Nonetheless, the fact that the respondent has had other disciplinary actions the respondent had been warned and sanctioned for the other incidents. note that the misconduct involved in the representation of Schneider occurred before case with due diligence. N.H. R. Prof. Conduct 1.1(a), 1.1(b), 1.4(a), 1.3(a), 8.4(a). We to keep his clients informed of the status of their case and failure to manage their case based upon his failure to competently represent clients, failure to appear, failure March 15,2005, he received a six-month suspension associated with an unrelated 1997 and a reprimand in December 2003 for misconduct unrelated to this case. On Richmond's Case, 152 N.H. at 161. The respondent received a warning in October We have found that prior disciplinary offenses constitute an aggravating factor. See

aggravating. . multiple offenses and dishonest or selfish motive. We agree that these factors are The parties stipulate to the following aggravating factors: prior disciplinary offenses,

to be a mitigating factor. the lack of authority, and on the facts of this case, we do not find the passage of time passage of time as "one mitigating fact not addressed by the ABA Standards." Given mitigating factor. The respondent cites no authority for this position and describes The respondent urges us to recognize the passage of time since his misconduct as a

stipulation, and recognize this to be a mitigating factor. respondent displayed genuine remorse by admitting his misconduct in the acceptance of responsibility for his misconduct." We acknowledge that the cooperation was coupled with an expression of 'genuine remorse' ... and complete deserves credit for his cooperation with the disciplinary process because his the bankruptcy court. The committee states in its brief that, "[the respondent] In the stipulation, the respondent admits to his misconduct toward Schneider and must admit to his professional misconduct to truly demonstrate remorse." Id. at 30. mitigating factor. Feld's Case, 149 N.H. at 29-30. Where deceit is involved,"a lawyer showing of genuine remorse, cooperation with the disciplinary process alone is not a professional duty to cooperate with the committee's investigation and that absent a misconduct should be a mitigating factor. We have held that a lawyer has a coupled with genuine remorse and complete acceptance of responsibility for his parties stipulate that the respondent's cooperation with the disciplinary process We next consider the effect of mitigating or aggravating factors on the sanction. The

bankruptcy court, suspension is appropriate. Schneider's bankruptcy case. Based upon the respondent's misconduct toward the and that his actions caused the office of the United States Trustee to decide to reopen

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p. 6 bound by the terms of agreements. Although we have accorded considerable weight or Criminal in Nature?, 19 J. Legal Prof. 257,263-65 (1994). Accordingly, we are not Merski, 121 N.H. 901, 909 (1981); Strength, Attorney Disciplinary Proceedings: Civil Attorney discipline proceedings, however, are not civil or criminal in nature. State v.

result in more timely disposition of cases. cases may reduce burdens on the attorney discipline system and complainants and Wood sum, 137 N.H. 198, 199-200 (1993). Likewise, agreements in attorney discipline burdens of a trial and may result in a more timely disposition of [the case]." State v. omitted). In criminal cases, plea bargains "[save] the State and any witnesses the administration of justice." Hayes v. State, 109 N.H. 353, 355 (1969) (quotation in civil cases are "scrupulously kept ... and of inestimable value in the in criminal proceedings. We have recognized that agreements made between counsel have a value similar to negotiated agreements in civil proceedings and plea bargains committee. We recognize that stipulations in attorney discipline proceedings may negotiated by the respondent and the ADO and approved by a hearing panel and the In ordering disbarment, we have taken into account that the disposition was

divorce proceeding). (1996) (attorney disbarred for presenting false testimony to marital master in client's home and failing to subsequently disclose misconduct); Basbanes' Case, 141 N.H. 1 (1991) (attorney disbarred for using fraudulent means to secure financing on own $200,000 as payment for clearly excessive legal fees); Astles' Case, 134 N.H. 602 client experiencing mental deterioration to convey to him property worth over Coffey's Case, 152 N.H. _,880 A.2d 403 (attorney disbarred for convincing an elderly This sanction is commensurate with sanctions imposed in our prior cases. See, ~,

benefit himself will receive the harshest sanction. conduct toward a client and a tribunal over a span of several years with the intent to informs the public and the bar that a lawyer who engages in a course of deceitful future. Feld's Case, 149 N.H. at 28. Disbarment is the only sanction that properly bar, preserve the integrity of the legal profession and prevent similar conduct in the attorney discipline system to protect the public, maintain public confidence in the misconduct, we find that disbarment is the only sanction that attains the goals of the displayed genuine remorse by admitting to and taking responsibility for past find that disbarment is appropriate. While we recognize that the respondent disciplinary sanctions, multiple rule violations and dishonest and selfish motive and We have considered the respondent's misconduct and the aggravating factors of prior

client, the bankruptcy court and the legal profession. bankruptcy court for his own financial gain resulted in misconduct injurious to his motivated by his self-interest. His willingness to deceive his client and the and as recently as 2003, the respondent engaged in a course of misconduct aggravating factor in this case. Over the course of his representation of Schneider, Coffey's Case, 152 N.H. _, _,880 A.2d 403,414 (2005). This is the most serious We have held that dishonest or selfish motive is an aggravating factor. See,~,

acquire the property. premeditated scheme to deceive his client and the bankruptcy court in order to for his own personal gain. In sum, the multiple offenses here constituted a

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BRODERICK, C.J.