Mark E. Wolterbeek (2005)

I. In a letter notarized on September 24, 2003, Richard J. Schneider made allegations of

evidence. The factual findings and rulings oflaw are detailed below. supports the following factual findings and rulings of the Hearing Panel by clear and convincing Having reviewed t.h.e record, the Professional Conduct Committee has determined that t.h.e record

Wolterbeek, LD 2003-0009, would run consecutively or concurrently. stipulated sanctions in this matter and in another pending matter, In the Matter of Mark E. there was no lmderstanding between Attorney McCafferty and Attorney Shklar whether the dated December 6, 2004 and January 7, 2005. In the latter letter, the Committee was advised that dated December 2, 2004, and various correspondence, including letters from Attorney McCafferty Stipulation (draft), Stipulation, the transcript of November 19, 2004 Hearing, Hearing Panel Report Motion to Dismiss, Objection to Motion to Extend, Hearing Panel Appointment, Notice of Hearing, Respondent's Motion to Dismiss, Respondent's Motion to Extend, Notice of Charges, Objection to The Professional Conduct Committee thoroughly reviewed the record in this matter which includes:

Hamel did not participate. Stephen Stepanek, David N. Cole and Thomas P. Connair. Nancy R. Hacking and Gretchen Rule Cronheirn; Toni M. Gray, Vice Chair; James R. Martin; Richard B. McNamara; David N. Page, included: Margaret H. Nelson, Chair; Benette Pizzimenti, Vice Chair and Reporter; Alan J. On January 18,2005, the Professional Conduct Committee deliberated this matter. Members present

37 A(III)(d)(2)(B). Shklar, Esquire, waived oral argument before the Committee pursuant to Sup. Ct. R. 2004, the Committee was advised that Attorney McCafferty and the Respondent's attorney, Michael R. 37 A(IIT)( d)(2). By letter from Disciplinary Counsel, Landya B. McCafferty dated December 6, The above-referenced matter comes before the Professional Conduct Committee pursuant to Sup. Ct.

Mark E. Wolterbeek advs. Richard J Scheider #03-101

Partnership on or about October 10, 1995. According to that Affidavit, the"only partners to (Vol. p. 2 2008, Page 0135), Mr. Wolterbeek and Ms. Wolterbeek formed REMY Limited 14. According to an Affidavit Mr. Wolterbeek filed in the Cheshire County Registry of Deeds

some point in the future. Mr. Wolterbeek and Ms. Wolterbeek believed that the Village Grocer could be profitable at 13. Mr. W olterbeek and Ms. W olterbeek developed an interest in purchasing the Village Grocer.

not interested in becoming a record owner of the Village Grocer. Due in large part to environmental concerns with respect to the Village Grocer, the Bank was gasoline pumps and gasoline underground storage tanks that used to exist on the property. 1 p. 2 2. Mr. Wolterbeek had communicated to the Bank his concerns with respect to the existence of

property at any time after that auction, the Bank never recorded a foreclosure deed. 11. Although Shawmut Bank could have prepared a foreclosure deed and taken title to the

bidders. 10. In or about October, 1995, Shawmut Bank held a foreclosure auction at which there were no

in the process of foreclosing on the Village Grocer. 9. At the time that Mr. Schneider's bankruptcy petition was being prepared, Shawmut Bank was

bankruptcy, and Mr. Wolterbeek agreed to represent him. 8. In late 1995, Mr. Wolterbeek advised Mr. Schneider it would be in his best interest to file for

7. Also in 1995, Mr. Schneider began experiencing serious financial difficulties.

Schneider's name remained on the deed. 6. Per the terms of the divorce decree, Mr. Schneider received the Village Grocer, but Ms.

5 . -In: early -1995, -Ms. -Wolterbeek represented Mr. Schneider inhisdivorce:-

to the Village Grocer. 4. In 1995, Mr. Wolterbeek and his then-wife, Susan K. Wolterbeek, had a law office next door

avoided foreclosure at that time. experiencing with his mortgage holder, Shawmut Bank. An agreement was reached which 3. In 1994, Mr. Wolterbeek assisted Mr. Schneider in resolving financial troubles he was

store referred to collectively a"Village Grocer") since 1985. Store and its premises on the Rindge Common in Rindge, New Hampshire (real estate and p. 2 2. Mr. Schneider, and his then-wife, Dolores A. Schneider, had owned the Village Grocery

professional misconduct against Mark E. W olterbeek. p. 3 ---Partnership to Shawmut-Bank as a

Chapman. To date, Mr. Schneider has never met Mr. Chapman. Quitclaim Deed. At the time he signed the Quitclaim Deed, Mr. Schneider did not know Mr. 24. Mr. Schneider and Mr. Chapman were not in one another's presence while signing the

witnesses to those signatures are Ms. Wolterbeek and Mr. Wolterbeek. described on the Quitclaim Deed as a"limited partner" of"REMY Limited Partnership." The 23. The signatories on the Quitclaim Deed are Mr. Schneider and Mr. Chapman. Mr. Chapman is

environmental and tax liability. indemnifY me from any liability of this real property, especially in regard to problems and unpaid real estate taxes and said limited partnership has agreed to Limited Partnership is taking on this property knowing of the environmental which paid Shawmut Bank $25,000 for assignment of its mortgage. REMY I understand that there is an investment group caned REMY Limited Partnership,

22. In the fifth paragraph of the Quitclaim Deed, it states:

21. Mr. Wolterbeek drafted the Quitclaim Deed.

("Quitclaim Deed"), transferring title to the Village Grocer to REMY Limited Partnership. 20. On October 31, 1995, Mr. Schneider executed a"Quitclaim In Lieu Of Foreclosure"

his then-client, Mr. Schneider, still held record title. from Shawmut Bank, Mr. Wolterbeek became the holder of mortgages on property for which 19. As of the date that Mr. Wolterbeek purchased the three mortgages on the Village Grocer

Village Grocer. Wolterbeek's involvement in REMY Limited Partnership as well as his interest in the 18. Mr. Wolterbeek also failed to inform his then-client, Mr. Schneider, of both Mr.

~~ ~~--"group of investors." involvement in REMY Limited Partnership. Mr. Wolterbeek described REMY Limited 17. In his negotiations with Shawmut Bank, Mr. Wolterbeek did not disclose his personal

Partnership paid Shawmut $25,000.00 for these three mortgages. Registry of Deeds (Vol. 1540, Page 0071). According to the Quitclaim Deed, REMY Limited mortgages the Schneiders owed to the Bank for the Village Grocer. See Cheshire County 16. On October 30, 1995, REMY Limited Partnership purchased from Shawmut Bank the three

Hampshire Secretary of State. October 10, 1995, Mr. Wolterbeek did not register the Partnership at that time with the New 15. Although the REMYLimited Partnership agreement was purportedly signed on or about

the Limited Partnership" were Mr. W olterbeek, Ms. W olterbeek, and George Chapman. p. 4 4 debtor: 35. In the section of the Petition entitled"Statement Of Financial Affairs," question 5 asks the

Wolterbeek did not, however, list REMY Limited Partnership as a secured creditor. the entity holding the mortgages on the Village Grocer was REMY Limited Partnership. Mr. a"secured creditor" of the Village Grocer. As of L1:te date Mr. W olterbeek filed the Petition, 3 p. 4 4. Notably, as of the date that Mr. Wolterbeek filed the Petition, Shawmut Bank was no longer

$1 p. 4 44,276.98. Mr. Wolterbeek listed the market value of the Village Grocer at $25,000.00. $169,276.98. Mr. Wolterbeek listed the unsecured portion of that mortgage as valued at Shawmut Bank as having a mortgage on the Village Grocer in an amount valued at 33. In"Schedule D," entitled"Creditors Holding Secured Claims," Mr. Wolterbeek listed

Limited Partnership, of title to the Village Grocer. disclose his transfer to Mr. Wolterbeek and Ms. Wolterbeek, as general partners in REMY 32. Additionally, at no place in the Petition did Mr. Wolterbeek, on behalf of Mr. Schneider,

acquisition by REMY Limited Partnership ofMr. Schneider's Shawmut Bank mortgages. 31. At no place in the Petition did Mr. Wolterbeek, on behalf of Mr. Schneider, disclose the

30. In answer to question 10, the Petition states,"none."

commencement of this case .... absolutely or as security within one year immediately preceding the course of the business or financial affairs of the debtor, transferred either List all other property, other than property transferred in the ordinary

the debtor: 29. In the section of the Petition entitled"Statement of Financial Affairs," question 10 asks

record title to the Village Grocer. October 27, 1995, the date Mr. Schneider executed the Petition, Mr. Schneider still held 28. The Petition indicates that Mr. Schneider owned no real estate at the time. However, as of

Mr. Schneider ("the Petition")' Mr. Schneider executed the Petition on October 27,1995. 27. On November 3,1995, Mr. Wolterbeek filed a Chapter 7 Bankruptcy Petition on behalf of

Schneider. that Mr. Wolterbeek was involved in a business transaction adverse to his then-client, Mr. 26. Mr. Wolterbeek was aware at the time that he acquired the mortgages from Shawmut Bank

Limited Partnership. awareness that Mr. Wolterbeek and Ms. Wolterbeek were in any way involved in REMY 2 p. 5 5. At the time that Mr. Schneider signed this docmnent, Mr. Schneider had no knowledge or 5 Mr. Wolterbeek was involved in either REMY Limited Partnership or REMY Real Estate p. 4 44. At the time Mr. Schneider signed this"Corrective Quitclaim Deed," he still did not kuow

"REMY Real Estate Limited Partnership." Quitclaim Deed" to correct the name of the grantee from"REMY Limited Partnership" to 43. On October 10,2002, Mr. Sch_neider, per MJ. Wolterbeek's request, sig.'1ed a"Corrective

Village Grocer from REMY Limited Partnership. Schneider assumed that, after his departure to Florida, Mr. Wolterbeek had purchased the Wolterbeek owned the Village Grocer, but he did not ask for an explanation. Mr. located in the Village Grocer building. At that time, Mr. Schneider was aware that Mr. Hampshire, Mr. Schneider visited Mr. Wolterbeek at his law office, which was now 42. In the Fall of2002, Mr. Schneider returned to live in New Hampshire. While in New

name of the partnership as"REMY Real Estate Limited Partnership." general partners. In the"Certificate of Limited Partnership," Mr. Wolterbeek listed the Secretary of State. Mr. Wolterbeek signed on behalf of himself and Ms. Wolterbeek, as Limited Partnership" to register REMY Limited Partnership with the New Hampshire 41. The day after securing this loan, April 9, 1996, Mr. Wolterbeek filed a"Certificate of

agreement as general partners ofREMY Limited Partnership. Village Grocer from Granite Bank. Mr. Wolterbeek and Ms. Wolterbeek signed the mortgage 40. On April·8, 1996, REMY Limited Partnership obtained a $7 p. 5 5,000.00 loan secured by the

39. On February 6, 1996, Mr. Schneider received a bankruptcy discharge.

Mr. Schneider (in Florida). 199 p. 5 5, via a telephone conference call between the Chapter 7 Trustee, Mr. Wolterbeek, and Florida. The official meeting of creditors in Mr. Schneider's case took place on December 7, 38. In mid-November 1995, during the pendency of his bankruptcy, Mr. Schneider moved to

transferred the Village Grocer"through a deed in lieu offoreclosure." which Mr. Schneider had, only a few days before Mr. Wolterbeek filed the Petition, 37. In answering Question p. 5 5, Mr. Wolterbeek also failed to mention the Quitclaim Deed, by

mortgages to REMY Limited Partnership. Bank foreclosed in October 199 p. 5 5 but does not mention the fact that Shawmut assigned the Grocer by Shawmut Bank. Mr. Wolterbeek's answer to this question implies that Shawmut 36. In answer to"Question 5," Mr. Wolterbeek included the fact of the foreclosure on the Village

commencement of this case .... returned to the seller, within one year immediately preceding the foreclosure sale, transferred through a deed in lieu of foreclosure or List all property that has been repossessed by a creditor, sold at a p. 6 6

Conduct: and convincing evidence that Mark Wolterbeek has violated the following Rules of Professional Based on the above listed facts, the Professional Conduct Committee concludes that there is clear

Wolterbeek. 52. Thereafter, on September 24, 2003, Mr. Schneider filed this complaint against Mr.

REMY Real Estate Limited Partnership. for the first time of Mr. Wolterbeek's involvement in REMY Limited Partnership, a.k.a. 51. As a result of his discussions with Mr. Tierney and Ms. Karonis, Mr. Schneider learned

Ms. Karonis at Ms. Karonis' office in Manchester, New Hampshire. over the telephone. On August 13,2003, Mr. Schneider met at length with Mr. Tierney and Bankruptcy Analyst at the Office of the United States Trustee, interviewed Mr. Schneider previous ownership of the Village Grocer. On August 7, 2003, Brian F. Tierney, CPA, 50. Ms. Karonis began an investigation into the circumstances surrounding Mr. Schneider's

Karonis was concerned that a fraud had been perpetrated on the Bankruptcy Court. Grocer which neither Mr. Schneider nor Mr. Wolterbeek had disclosed in the Petition. Ms. grounds of information contained in the Cheshire Register of Deeds regarding the Village 49. In that pleading, Ms. Karonis sought a re-opening of Mr. Schneider's bankruptcy on the

and to Authorize Appointment of Chapter 7 Trustee." pleading entitled"Ex Parte Motion of United States Trustee for Order Reopening Case 48. On or about August 4,2003, Geraldine B. Karonis, the United States Trustee, filed a

47. On that same date, Mr. W olterbeek filed the"Corrective Quitclaim Deed."

Wolterbeek (general partner), and George A. Chapman (limited partner)." that Ms. Wolterbeek had withdrawn as a partner, and"the remaining partners are Mark E. Limited Partnership" referred to the same entity. In that affidavit, Mr. Wolterbeek stated of Deeds clarifYing that the names"REMY Limited Partnership" and"REMY Real Estate 4 p. 6 6. On May 14,2003, Mr. Wolterbeek filed an Affidavit with the Cheshire County Registry

2008, Pages 0138-0145). by the Village Grocer from Granite Bank. See Cheshire County Registry of Deeds (Vol. refinancing, REMY Real Estate Limited Partnership obtained a $125,000.00 loan secured Mr. Wolterbeek refinanced the mortgage on the Village Grocer. Per the terms of the 45. On May 13,2003, acting as general partner for"REMY Real Estate Limited Partnership,"

Limited Partnership. p. 7 7

convincing evidence ofa violation ofN.H. R. Prof. Conduct 3.3(a)(I). 60. Mr. Wolterbeek's conduct in filing the false and misleading Petition constitutes clear and

rendered the Petition false and misleading in material respects. 59. By failing to provide complete answers to the questions in the Petition, Mr. WOlterbeek

to REMY Limited Partnership in lieu of foreclosure. before Mr. Wolterbeek filed the Petition, Mr. Schneider transferred title to the Village Grocer mortgages from Shawmut Bank for $25,000; and (c) that on October 31, 1995, three days Wolterbeek filed the Petition, REMY Limited Partnership acquired the Village Grocer 1995, the date he signed the Petition; (b) that, on October 30, 1995, four days before Mr. material facts: (a) that Mr. Schneider still held title to the Village Grocer as of October 2 p. 7 7, 58. Mr. Wolterbeek failed to disclose to the Bankruptcy Court in the Petition the following

clear and convincing evidence of a violation of N.H. R. Prof. Conduct 1.8(a). while unaware ofMr. Wolterbeek's involvement in REMY Limited Partnership, constitutes client, Mr. Schneider, transferred title in the Village Grocer to REMY Limited Partnership 5 p. 7 7. Mr. Wolterbeek's conduct in drafting the subsequent Quitclaim Deed, whereby his then­

convincing evidence of a violation ofN.H. R. Prof. Conduct 1.8(a). involvement in that purchase to his then-client, Mr. Schneider, constitutes clear and Bank on behalf of REMY Limited Partnership without disclosing Mr. Wolterbeek's 56. Mr. Wolterbeek's conduct in acquiring the three Village Grocer mortgages from Shawmut

with knowledge of the consequences." existence of the conflict to Mr. Schneider so that he could consent"after consultation and 55. Even ifthis were a waivable conflict of interest, Mr. Wolterbeek never disclosed the

Mr. Schneider is indicative of Mr. Wolterbeek's awareness of the conflict of interest. 54. Mr. Wolterbeek's failure to disclose his involvement in REMY Limited Partnership to

N.H. R. Prof. Conduct 1. p. 7 7(b). Schneider, was the obligor constitutes clear and convincing evidence of a violation of Shawmut Bank and thereby becoming the holder of notes on which his then-client, Mr. 53. Mr. Wolterbeek's conduct in acquiring the three Village Grocer mortgages from

significant time-period is the only way in which public confidence in this Bar can be a harsh sanction. Depriving Mr. Wolterbeek of his license to practice his profession for a the integrity of the legal profession. Mr. Wolterbeek's misconduct is severe and deserving of 4. Second, a two-year suspension will promote both public confidence in the Bar and preserve

37(14)(b). time in the future that Mr. Wolterbeek seeks reinstatement to the Bar. N.H. Sup. Ct. R. of time. Additionally, the public will be notified and have an opportunity to respond at such protected by the removal ofMr. Wolterbeek from the practice oflaw for a significant period 3. A two-year suspension addresses the purposes of attorney discipline. First, the public is

2 p. 8 8 (2002). "Lawyer discipline is not intended to be plmishment." Id. profession; and (4) prevent similar conduct in the future. See,~, Feld's Case, 149N.H. 19, public; (2) maintain the public confidence in the bar; (3) preserve the integrity of the legal 2. Under New Hampshire case law, the goals of attorney discipline are four-fold: (1) protect the

discipline. 1. A two-year suspension is consistent with New Hampshire case law and the goals of attorney

Wolterbeek. The Committee adopts the terms of the stipulation as follows: with the recommendation of the Hearing Panel and the stipulation of Disciplinary COlllsel and Mark Standards, the Court has"considered them when imposing sal1ctions"). The sanction is consistent Case, 149 N.H. 132, 139 (2003) (noting that, although the Court has never formally adopted these for Professional Responsibility, Standardsfor Imposing Lawyer Sanctions (1991). See, e.g., Shillen's See, e.g., Feld's Case, 149 N.H. 19, 2 p. 8 8 (2002). This sanction is also in accord with the ABA Center accord with the purposes of attorney discipline as described by the New Hampshire Supreme Court concludes that the appropriate discipline in this matter is a two year suspension. This sanction is in Having made the aforementioned fmdings and rulings, the Professional Conduct Committee

Prof. Conduct p. 8 8.4(a). above rules, there is necessarily clear and convincing evidence of a violation ofN.H. R. 62. Because there exists clear and convincing evidence that Mr. Wolterbeek violated the

Conduct p. 8 8.4( c). involving dishonesty, fraud, deceit and misrepresentation in violation of N.H. R. Prof. REMY Limited Partnership constitutes clear and convincing evidence of conduct 61. Mr. Wolterbeek's conduct in failing to disclose to Mr. Schneider his involvement in

Rule p. 8 8.4(c): Conduct involving Dishonesty, Fraud, Deceit and Misrepresentation p. 9 9

other New Hampshire cases. 13. In sum, a two-year suspension is consistent with the purposes of attorney discipline as well as

conflict of interest, and the prohibited transaction. present false testimony). A rwo-year suspension addresses Mr. Wolterbeek's deceit, the 28-30 (holding one-year suspension appropriate in case where respondent counseled client to made false statements and offered false affidavits to district court); Feld's Case, 14 p. 9 9 N.H. at N.H. 62, 69-72 (2000) (holding one-year suspension appropriate in case where respondent 12. Mr. Wolterbeek's case is deserving of a two-year term of suspension. See Bruzga's Case, 145

acceptance of responsibility for his misconduct. See ABA Standards § p. 9 9.32(c). proceedings. This Stipulation illustrates Mr. Wolterbeek's full cooperation, and his "cooperative attitude toward, and has made full disclosure in," these attorney discipline 11. Mr. Wolterbeek's case does not fall into the disbarment category because he has exhibited a

professional conduct committee." Id. additional and repeated misconduct, including the respondent's failure to cooperate with the O'Meara's Case, 834 A.2d at 237, the Court has observed that"those cases involved 10. While the Court has"ordered disbarment for attorney misconduct involving dishonesty,"

and took advantage of his own client in that process. public censure. Mr. Wolterbeek acted with a selfish motive, see ABA Standards § p. 9 9.22(b), 9. There is one additional aggravating fact that takes Mr. Wolterbeek's case out of the realm of

as strong an aggravating factor. Wolterbeek's disciplinary history post-dates his misconduct in this case and is, therefore, not history (see attached Warning in 1 p. 9 997, and Reprimand in 2003). Notably, however, Mr. spectrum, with public censure. Unlike Mr. 0'Meara, Mr. Wolterbeek has a prior disciplinary 8. However, it is clear that Mr. Wolterbeek's misconduct does not fall on the low end of the

appropriate sanction in a particular case from prior case law. circumstances," Flint's Case, 133 N.H. 685, 68 p. 9 9 (1990), it can be difficult to discern the 7. Because the Court has held that"[e ]very case is to be judged on its own facts and

disbarment on the high end. See Basbanes' Case, 141 N.H. 1,8 (1 p. 9 996). sanctions, from public censure on the low end, see O'Meara's Case, 150 N.H. 157 (2003), to 6. In cases involving deceit, the New Hampshire Supreme Court has issued a spectrum of

for misconduct of this magnitude. strong message to attorneys, in addition to Mr. Wolterbeek, that a harsh sanction is meted out 5. Finally, a two-year suspension will prevent similar misconduct in the future by sending a

maintained and the integrity of this profession preserved. p. 10 10

File Michael Shklar, Esquire cc: Landya B. McCafferty, Disciplinary Counsel

LD 2003-0009. this suspension be made consecutive to the sanction imposed in In the Matter ofMarkE. Wolterbeek, Rule 8.4(a): Catch-all rule. The Petition should also set forth the Committee's recommendation that TribUnal; Rule 8.4 (c): Conduct involving Dishonesty, Fraud, Deceit and Misrepresentation, and 1.7(b): Conflict of Interest; Rule 1.8(a): Prohibited Transactions; Rule 3.3(a)(l): Candor to the from the practice of law for two years for violating the following N.H. R. Prof. Conduct Rules: a Petition with the New Hampshire Supreme Court, requesting that Mark Wolterbeek be suspended For all of the above reasons, the Professional Conduct Committee directs Disciplinary Counsel to file

for all costs and expenses incurred in the investigation and prosecution of this matter. 14. Mr. Wolterbeek shall be responsible to reimburse the Professional Conduct Committee