Mark S. Moeller (2019)

witness. Because the ADO has s ustained its burden of showi ng by a

specifically, his own testimony and that of his assistant and a character

Esq. The ADO proceeded by offer of proof. Moeller presented evidence;

present. T he ADO was represented by Mark Cornell, Esq. and Andrea Labonte,

Hilliard, Esq. of Upton & Hatfield, LLP. Moeller’s criminal counsel was also

Justice, as referee, on July p. 3 18, 2019. Moeller was represented by Russell

The hearing on the interim suspension was held befo re the undersigned

that con dition.

any new clients.” The ADO did not object to staying the interim suspension on

interim suspension, pending the hearing, with th e condition that he “not accept

Reiner’s Case, p. 3 152 N.H. 163, 167 (2005) (Reiner I). He also moved to stay the

Sup. Ct. R. 37( p. 3 16)(d); Reiner’s Case, 152 N.H. 594, 595 (2005) (Reiner II);

37(9)(i); 37( p. 3 16)(f). Moeller requested a hearing on the interim suspension. S ee

temporarily suspending Moeller from the practice of law. See Sup. Ct. R.

Rule 37(9)(i). On July 9, 20 p. 3 19, the court im posed an interim suspension,

recommended that the court institute proceedings pursuant t o Supreme Court

copy of the indictment with the New Hampshire Supreme Court and

On July 8, 20 p. 3 19, the Attorney Discipline Office (ADO) filed a certified

without the client’s authority. Moeller entered a ple a of not guilty.

execute a client’s signature on a fee agreement between the client and Moeller

RSA 638: p. 3 1 (2016). The indictment alleges that he requested his assistant to

Strafford County Grand Jury for solicitation of forgery. See RSA 629:2 (20 p. 3 16);

On June 20, 20 p. 3 19, Attorney Mark S. Moeller was indicted by the

Referee’s Recommendations

In the Matter of Mark S. Moeller, Esq.

Docket No. LD - 20 p. 3 19 - 00 09

Supreme Court

The State Of New Hampshire p. 4 2

prepared, signed, and filed a motion with the court on April 17, p. 4 2017 and then

notarized his signature. In September p. 4 2017, t he client told police that he

that, if the client had signed the replication in her presence, she would have

notary, and Moeller did not sign the certificate of service. The assi stant testified

“appease” her. His signature was not notarized, although the assistant is a

the assistant that he signed the replication on April 17 in front of her to

not sign the replication in the office. The clie nt stated in a July p. 4 2017 e - mail to

he would not file it with the trial court. She further testified that the client did

the draft replication, and announced that it was not what he wanted and that

client. The assistant testified that the client came to the office that day, read

On April 17, p. 4 2017, Moeller drafted a replication as requested by the

the contract.”

signed [the retainer contract] because he did not like or want to be bound [by]

September 18, p. 4 2017, the client told the police a different story — that “he never

not sign the representation agreement” and that this was “unintentional.” On

the client left Moeller a voicemail message stating that the client knew he “did

client would testify that he never signed the fee agreement. On June p. 4 22, 2017,

assistant testified that the file was in “disarray.” The ADO proffered that the

the fee agreemen t on March 13, when he was given the memorandum. The

“chaotic afternoon.” Moeller and the assistant testified that the client signed

Moeller’s assistant prepared a fee agreement. Moeller testified that it was a

prepared a memorandum of law for the client to submit to the trial court.

a March p. 4 27, 2017 hearing. On March 13, under a short deadline, Moeller

I n March p. 4 2017, Moeller filed a limited appearance to represent a client at

Facts

with the c onditions set forth below.

profession, I recommend that the interim suspension be imposed in accordance

for the protection of the public and the preservation of the integrity of the legal

preponderance of the evidence that a partial interim suspension is necessary p. 5 3

Moeller send him a signed copy of the replication. Both the assistant and

was entitled to the money charged. The client repeatedly demanded that

each, he submitted a copy of a signed fee agreement as part of his proof that he

Ultimately, Moeller disputed t hree separate chargebacks by the client. In

agreement in a folder in which it did not belong.

that, after “rummaging through” the entire file, she found the signed fee

a fee agreement to recover from the credit card company. The assistant testified

of which is inaudible, the recording ends. Moeller testified that he did not need

repeated, “I said, can you sign his name.” After some further discussion, much

sign his name ?” The assistant responded, “Nope, he didn’t sign it.” Moeller

prepared it. Nope. He never signed it. Awesome.” Moeller queried, “Can y ou

said, “Yep, no fee agreement. He didn’t sign i t. It’s here, I have it here, I

just took it as - -.” Moeller stated, “Yeah, it wouldn’t shock me.” The assistant

assistant responded, “We’ll f orge his name. I don’t care. I bet he didn’t. I bet he

agreement. I hope he signed one.” Moeller said, “I hope he did, too.” The

The assistant responded, “Absolutely. We have to do a written rebuttal, a fee

Moeller said to the assistant, “We want to contest it in every which way.”

subsequent conversation with the assistant was also recorded.

Moeller failed to hang up his phone and, as a result, a portion of his

and that he intended to “fight this to the bitter end.” At the end of his message,

“beyond offended” that the client was attempting to renege on his fee payment

client and left a strongly worded voice message. Moeller said that he was

pr oof of services rendered.” (Bolding omitted.) Moeller promptly telephoned the

“written rebuttal, signed fee agreement, s igned authorization form/receipt, and

the chargeback, the credit card company requested that Moeller provide a

that payment and that the “Reason Code” was “Services Not Provided.” To rebut

portion of Moeller’s services notified Moeller that it was going to “chargeback”

On April 28, 2017, a credit card that the client had used to pay for a

17, 2017, the client filed a motion for contempt.

supplie d Moeller with a copy of it. The trial court’s docket reflects that on April p. 6 4

F.3d 992, 100 p. 6 4 (2d Cir. 1994).

the balanc ing of evidence from both sides. ’” Id., quoting Valmonte v. Bane, 18

So.2d 576, 581 - 82 (La.Ct.App. 1992). “[T]he ‘ preponderance s tandard allows for

Preisendorfer, 1 p. 6 43 N.H. 50, 54 (1998), quoting State v. 77,014.00 Dollars, 607

that [the] fact … to be pro ven is more probable than not.’” Petition of

“[P]roof by preponderance ‘ means that evidence, taken as a whole, shows

error between the litigants. ’” Id.

Texas, p. 6 441 U.S. 418, 423 (1979). “‘ The standard serves to allocate the risk of

adjudication. ’” State v. Ploof, 162 N.H. 609, 623 (2011), quoting Addi ngton v.

he should have in the correctness of factual conclusions for a particular type of

instruct the factfinder concerning the degree of confidence our society thinks

additional evidence. Id. at 170. “‘ The function of a s tandard of proof … is to

burden, the ADO may supplement the allegations in the indictment with

allegations in the indictment are true. Reiner I, 152 N.H. at 169. To meet this

N.H. 528, 535 (2017); Sup. C t. R. 37(16)(f). It does not need to prove that the

the preservation of the integrity of the legal profession. Gallant’s Case, 170

that the interim suspension is necessary for the protection of the public and

The ADO has the burden of showing, by a preponderance of the evidence,

Analysis

of the signatures was taken from one document and placed on the other.

every aspect of the two signatures is identical. This supports a finding that one

client. Placing the transparent sheets one on top of the other demonstrates that

purportedly from the replication, which had been supplied to the police by t he

the fee agreement submitted to a credit card company. The other was

the client’s signature on transparent acetate. One of the signatures was from

At the interim suspension hearing, the ADO submitted enlarged copies of

copy of the replication.

signature. On July 17, 2017, the assistant e - mailed the client an unsigned

Moeller told the client that they did not have a copy of the replication with his p. 7 5

assertion.

the fee agreement] … is understandable.” The record does not support this

to avoid payment, a less than immediate recollection [that the client had signed

a sserts that “[i]n the upset … upon learning of [the client’s] fraudulent attempt

agreement, neither of them could recall whether the clien t had done so. Moeller

demonstrates that, just a few weeks after they claim the client signed the fee

agreement on March 13. Yet the recording of their dialog on A pril 28

testified that they clearly and specifically recalled the client signing the fee

A t the interim suspension hearing, both Moeller and the assistant

agreement and thereby to avoid paying Moeller.

agreement to the replication to support his claim that he never signed the fee

Instead, he posits that the client transferred his own signature from the fee

asked his assistant to forge the client’s signature on the fee agreement.

First, Moeller contends that the evidence does not support a finding that he

The issue of whether Moeller ’s conduct threaten s the public is closer.

as a whole.” Reiner II, 1 p. 7 52 N.H. at 596.

untrusting eyes and that perception cannot help but be reflective upon the bar

with such offenses … cannot help but be looked upon by the p ublic with

alleged conduct damage s the integrity of the legal system. “A lawyer charged

In this case, the ADO has sustained its burden of showing that Moeller ’s

all ti mes to be truthful.” Id. (quotation omitted).

Id. (quotation omitted). “Accordingly, it is the responsibility of every attorney at

public trust and requires an unswerving allegiance to honesty and integ rity.”

truth, candor and honesty.” Id. (quotation omitted). “Lawyering involves a

the privil ege of practicing law includes the concomitant responsi bilities of

the bar more completely than a lie.” Id. (quotations omitted). “This is because

reflects more negatively on the legal profession and erodes public confide nce in

an attorney is dishonest.” Gallant, 170 N.H. at p. 7 538. “No single transgression

“The injury to the public and to the profession is substantial whe never p. 8 6

for which he accepted full responsibility at the time.

against h im was a reprimand in 1999 for knowingly disobeying a court order,

practicing for more than 40 years; and (4) the only other disciplinary action

two years ago, with nothing remotely similar in the interim; (3) he has been

(1) the alleged incident is isolated; (2) it is alleged to have occurred more than

Second, Moeller argues that he poses no danger to the public because:

143 N.H. at 54.

inconsistencies in Mo e ller’s and the assistant’s testimony. See Preisendorfer,

the preponderance standard, I must balance th e client’s credibility against the

the underlying criminal charge, it does not affect the instant analysi s. Under

and to the police. While this strong ly support s a reasonable doubt argument on

inconsistent, and nonsensical information” that the client provided under oath

Mo e ller points accurately to many instan ces of “demonstrably false,

whether the client signed the replication.

that the client did not file the replication. T hat note, however, does not indicate

handwritten note on the top of the transmittal letter for the replication stating

which to transfer the client’s signature. Moeller points to the assis tant’s

merely chosen from many documents signed by the client as the one from

the replication for any number of reasons, and that document could have been

well before the client contested his bill. I disagree. T he client could have signed

upon the premise that he planned the forgery when the replication was drafted,

Moeller contends that the proposition that he solicited forgery depends

that they were ide ntical; he testified only that they were “similar.”

signatures on the transparent acetate sheets, Moeller refused to acknowledge

finally, to anger. Furthermore, w hen presented with the copies of the two

response to the chargeback as moving from “extreme hurt” to “disbelief,” and,

with humor. This is consistent with Moeller’s own description of his e motional

recording reflects that he and the assistant were angry, not speaking lightly or

conversation with t he assistant as “flip” and “non serious.” On the contrary, the

A t the interim hearing, Moeller characterize d his April 28 recorded p. 9 7

significant expense to the client.

attorney may not be able to step into th ese kind s of matter s quickly or without

effective substitute representation on short notice. Furthermore, a substitute

attorneys will not take. His existing clients would have difficulty finding

contentious family law matters. He testified that he takes cases that other

than 40 years. He specializes in representing clients in complex and

the interim. Finally, M oeller is a solo practitioner who has practiced for more

solicitation occurred more than two years ago, with nothing remotely similar in

reasonable doubt in the underlying criminal proceeding. Second, the alleged

facts are contested. I recognize the strength of Moeller’s ultimate claim of

I make this recommendation for several reasons. First, as indicated, the

continue.

representing clients who, after notice, wish to have that representation

stayed to the extent that it appl ies to matters in which Moeller is currently

any new clients. I recommend that the interim susp ension continue to be

suspension pending hearing, subject to the condition that Moeller not accept

As indicated above, the ADO did not object to a stay of the interim

suspension for the protection of the public. See Preisendorfer, 143 N.H. at 54.

probable than not that the allegations against Moeller necessitate his interim

to clients or to the public”). Accordingly, I find and conclude that it is more

false statem ents or engaged in other conduct which poses an immediate threat

in part, because attorney was not alleged to have “misused clients’ funds, made

future clients. Cf. Reiner II, 152 N.H. at 598 (no interim suspension necessary,

dishonesty”). Furthermore, Moeller’s alleged acts directly threaten present and

statements to client and others in single matter were “part of a pattern of

sworn testimony at the interim hearing. See Gallant, 1 p. 9 70 N.H. at 538 (repeated

credit card companies, and to the ADO. Additionally, he repeated these facts in

he is also alleged to have repeatedly misrepresented fact s to his client, to the

A lthough Moeller is charged with only one count of solicitation of forgery, p. 10 8

Larry M. Smukler, Referee

/s/______________________ August __, 2019

Respectfully submitted,

court if additional parties are indicted in connection with this matter.

criminal proceedings against him and shall notify the ADO and the

(5) Moeller shall keep the ADO and the court advised of the status of the

the court’s order; and

has fully complied with this requirement within 30 days of the date of

him with specificity and provide the court with an affidavit that he

(4) Moeller shall notify all his current clients of the indictment against

existing clients unless and until the interim suspension is lifted; and

(3) Moeller shall not accept any new clients or new matters involving

currently represents clients, see Sup. Ct. R. 37(9)(i); and

(2) the interim suspension does not apply to matters in which Moeller

see Sup. Ct. R. 37(16)(f); and

public and the preservation of the int egrity of the legal profession,

(1) Moeller’s interim suspension is necessary for the protection of the

suspension hearing before me, I recommend that the court find and rule that:

Based upon the ADO’s proffer and the evidence presented at the interim

Conclusion