Joshua N. Mesmer (2020)

1 NOTICE: This opinion is subject to motions for rehearing under Rule 22 as Professional Conduct Committee No. LD-2019-0001 In this case, the respondent represented a married couple. For ease of reference, we refer to the Sara S. Greene, disciplinary counsel, of Concord, on the brief and orally, Upton & Hatfield, LLP, of Portsmouth (Russell F. Hilliard and Brooke BASSETT, J. On February 19, 2019, the New Hampshire Supreme Court THE SUPREME COURT OF NEW HAMPSHIRE Opinion Issued: February 21, 2020 ___________________________ Argued: October 10, 2019 MESMER’S CASE couple as “the client,” “she,” or “her.” well as formal revision before publication in the New Hampshire Reports. Professional Conduct Committee (PCC) filed a petition in which it found that for the Attorney Discipline Office. Lovett Shilo on the brief, and Mr. Hilliard orally), for the respondent. Readers are requested to notify the Reporter, Supreme Court of New the respondent, Joshua N. Mesmer, violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 3.3, Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 8.4(a), and 8.4(c) of the New Hampshire Rules of Professional Conduct while 1 editorial errors in order that corrections may be made before the opinion goes serving as counsel in a case litigated from December 2015 to November 2016. to press. Errors may be reported by e-mail at the following address: The PCC has recommended that the respondent be suspended from the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 practice of law for three years, and, provided that the respondent pays for the a.m. on the morning of their release. The direct address of the court’s home costs of investigating and prosecuting this matter and engages in no further page is: http://www.courts.state.nh.us/supreme. professional misconduct, that 18 months of the suspension be stayed. The respondent challenges the recommended sanction, arguing that, because he was suffering from severe sleep apnea during the period of representation, he was unable to form the “knowing” state of mind necessary for a number of the p. 2 2 ethical violations, and that his sleep apnea is a significant mitigating factor in The following facts were either found by the PCC or are supported by the The conduct code violations at issue arise from the respondent’s On January 6, 2016, the respondent agreed to accept service on the On January 8, the client e-mailed the respondent, asking if he had sent Despite these repeated assurances, the respondent did not file a motion record, which includes testimony from an evidentiary hearing held before a representation of the client in a fraudulent conveyance action between client’s behalf. Also on January 6, the respondent e-mailed Paul DeCarolis, her the motion to dismiss. The respondent replied by e-mail the same day, to dismiss, or any other responsive pleading. The respondent’s billing records determining the proper sanction. The respondent argues that he should hearing panel appointed by the chair of the hearings committee of the attorney December 2015 and November 2016. The respondent’s relationship with the counsel for Motostar, stating, “After reviewing your Petition to Set Aside stating that he and his colleagues were researching fraudulent conveyance law receive a fully-stayed suspension. We adopt the PCC’s recommended sanction. discipline system. See Sup. Ct. R. 37A(III)(b)(4). The respondent was admitted client began in 2012, when the Mesmer law firm represented a company, Fraudulent Conveyance, I am curious as to what money or assets you’re “a little further” before filing. On January 22, the client again e-mailed the to the Massachusetts Bar in 2006, and the New Hampshire Bar in 2007. He owned by the client, that had been sued by Motostar Tire and Auto Products, referring to as having been transferred fraudulently. Perhaps we can figure respondent, asking if the motion to dismiss had been filed. On January 23, the began his legal career as an assistant county attorney in the Hillsborough Inc. (Motostar). Motostar obtained a judgment of approximately $165,000. this out together.” The respondent e-mailed a copy of the fraudulent respondent replied, “No stress . . . . We are working on it . . . . You can expect County Attorney’s Office. In 2012, he left that position to become an associate Motostar and the company negotiated a payment plan, but the company failed conveyance petition to the client, and stated that he was “drafting an Objection to see some movement on our end by Tuesday.” in his father’s law firm: Mesmer & Deleault, PLLC in Manchester (the Mesmer to make the required payments. In December 2015, Motostar filed a Petition to to the Petition and a Motion to Dismiss to boot.” The respondent also law firm). Set Aside Fraudulent Conveyance against the company and the client. represented that he would send the client a copy of the pleadings on January 6 or 7. p. 3 3 show no entries after January 15 regarding a response to the fraudulent On March 14, DeCarolis e-mailed the respondent, asking, “Did On April 6, DeCarolis filed a motion for final judgment, mailing copies to On May 6, the client received a notice of final decision from the court. On June 6, a default judgment of over $120,000 was entered against the On July 1, Motostar obtained a writ of execution, which the Hillsborough I am writing to follow up on our meeting this morning. I put defendants intend to default in the fraudulent conveyance action?” On the both the respondent and the client. The respondent did not object, and the This notice was her first update on the case since January. Later that day, she client. On June 4, 7, 16, and 29, the client e-mailed the respondent asking County Sheriff served on the client. In execution of the writ, Motostar sought in a call to Paul DeCarolis, but he’s out of the office today because conveyance petition. The superior court issued a notice of default on February same day, the respondent replied, “Not at all. Did you not receive a copy of the motion was granted on April 28. called the respondent and informed him of the notice. This conversation is about the status of the Motostar case, whether a motion to dismiss had been the client’s shares of stock in another company. That same day, the of the holiday. I’ve been working on a Motion and Supporting 26. response?” Just two minutes later, DeCarolis responded, “No, only the default memorialized in the respondent’s billing records: two entries from May 6 state, filed, and how the default had occurred. The respondent did not address any respondent met with the client, and he memorialized the meeting in an e-mail Memorandum and plan on finishing them over the weekend. They notice.” On March 18, DeCarolis followed up in the same e-mail thread, “Call from [the client]; received Notice of Final Decision; will fax to my of these inquiries; rather, in June he sent the client one e-mail, which sent to her on the night of July 1: will be filed in Nashua Superior first thing Monday morning. I will stating, “I have not seen anything.” The respondent did not reply to DeCarolis’ attention,” and “To conduct investigation; discuss with Rebekah [a paralegal]. concerned a different matter. e-mail you copies when they are done. final March 14 e-mail or his March 18 e-mail. Nor did the respondent contact Will prepare appropriate response if necessary.” the court to determine whether it had received any pleadings from him. p. 4 4. . . . Try and enjoy the weekend. And know that I am working On July 14, the Sheriff served the writ of execution on the respondent as On July 18, the respondent sent a text-message to the client, stating that In the motion to stay, the respondent represented that “Defendants filed On July 22, the client traveled with the respondent to the hearing on On July 5, the client e-mailed the respondent, expressing anxiety about hard to get this matter straightened out once and for all. registered agent of the client’s company. On July 15, Motostar filed a motion he had informed the Sheriff “that an expedited motion to stay execution of a timely response and have received no information pertaining to this matter Motostar’s motion for ex parte relief. As they traveled, the respondent admitted the case and asking the respondent if he was filing an “appeal” that day. The for ex parte relief, and the court ordered the client to produce their stock judgment has been filed and that it shouldn’t be enforced until a ruling has since that time and to date.” Motostar filed an objection to the motion on July to the client that he had not filed an answer or any other responsive pleadings respondent quickly replied, “Yes. Be in touch soon.” The respondent did not certificates by July 18. The court also scheduled a hearing on the ex parte been made.” When the client expressed anxiety about defying the court’s order 20, and e-mailed a copy of the objection to the respondent that day. In the in the case. Following the July 22 hearing, the court granted Motostar’s file anything with the court during the week of July 4. The respondent later motion for July 22. On July 15, the respondent spoke with the client, who was to surrender her stock certificates that day, the respondent stated, “They can’t objection, Motostar attached as exhibits DeCarolis’ March 14 and 18 e-mails motion for ex parte relief, and ordered the client to deliver her stock certificates admitted that he had lied in his July 1 and 5 representations to the client. very concerned about these developments. arrest you with a motion pending.” Despite the respondent’s representations with the respondent, and also represented that the respondent had been copied to the Hillsborough County Sheriff by July 25. The trial court also stated that he had filed the motion to stay on July 18, the court docket sheet reveals on the motion for final judgment filed in April. during the July 22 hearing that the respondent was free to file a motion to that the motion was not filed until July 19. vacate default on the client’s behalf at any time. p. 5 5 Between July 22 and September 13, the respondent made a series of On August 10, the respondent texted the client that he was “[w]orking on On September 2, the client asked, “were the papers filed??” The Throughout this period, the client sent the respondent near-daily Finally, on September 13, the respondent filed his first pleadings in the intentional misrepresentations to the client, in which he stated falsely that motions” to be filed “first thing in the morning.” When the client replied that respondent replied, falsely, “Yes.” On September 7, the respondent represented messages seeking updates on the case, and stating that the case was causing case since July. These filings included numerous misrepresentations. In a various pleadings would soon be, and/or had already been, filed. For example, she thought those motions had already been filed, the respondent replied, to the client that he was drafting a “supplemental motion”; the respondent her significant stress and anxiety. The respondent often did not reply to these motion to accept late filing, the respondent represented that he had intended to on July 25, the respondent told the client that he was working on an “appeal,” falsely, “Oh no, I definitely filed motions after our hearing, but clearly we need admitted during his testimony before the hearing panel that he had described messages. When he did, he never told the client the truth: that he had filed no file a limited appearance in February. In an attached affidavit, he certified that and that he was “not stopping until we have won and finished this once and for more.” On the same day, the respondent told the client, falsely, that he was the filing as “supplemental” in order to maintain the false impression that pleadings, and thus nothing was pending before the court. “[b]ecause undersigned counsel filed a Limited Appearance for the sole purpose all.” On August 5, the respondent told the client that “the pleadings have been working with his father to “clear . . . up” problems in the case. pleadings had already been filed. The respondent also represented to the client of responding to Plaintiff’s Petition, he at all times believed [the client was] filed and now we wait.” In fact, the respondent had not filed anything. The that he had heard “[n]othing” about “last week’s filings,” even though there receiving and handling any and all correspondence from Plaintiff and the respondent also billed the client for drafting client affidavits on July 28, and were no filings from the prior week. Court.” The respondent had not obtained the client’s informed consent to a filing pleadings on July 29, even though he made no filings on July 29, and limited representation. Notably, although the respondent had represented the there is no evidence that he met with the client to sign affidavits during this client since 2012, he had never done so on a limited basis. time period. p. 6 6 In a motion to vacate default judgment, the respondent represented that By August 10, the respondent had received notice that a sheriff’s sale of At 10:07 a.m. on September 15, DeCarolis e-mailed the respondent Despite this representation, the respondent never filed an appeal with On September 21, the court set a hearing for October 19 on pending it was not until July 2016 “that Defendants . . . were first notified of this action the client’s stock certificates had been scheduled for September 15 at 10:00 asking if he was coming to the sheriff’s sale. At 12:56 p.m., after the sale had this court. Around this time, the respondent also falsely represented to the motions, including motions the respondent had filed on September 13 to vacate and its procedural posture.” The motion to accept late filing also included an a.m. On September 13, the court denied the respondent’s motion to stay the concluded, the respondent texted DeCarolis, asking, “where are we at with client that his father was reviewing an appeal with this court. Although no default judgment and dismiss the fraudulent conveyance action. On affidavit from the client, in which she similarly stated that “[f]rom [the filing of sheriff’s sale. On September 15, the court denied the respondent’s motion to everything auction-wise[?]” At 4:03 p.m., despite these messages, and despite appeal was filed, the respondent billed the client more than $600 for appeal- September 22, Motostar filed a “Motion to Extend Time to Respond to the complaint] until July of 2016, we received nothing from Plaintiff in the way reconsider its September 13 order. The respondent then texted the client, the fact that the sale had already occurred as scheduled, the respondent texted related work. Defendants’ Motion to Dismiss.” In the motion, Motostar noted that the client of pleadings, nor anything from the Court in the way of Court Orders. . . . It describing the rulings as “the most corrupt backwards shit I’ve ever seen in my the client that she “might want to call Matt Estey sheriff and tell him your had to obtain a favorable ruling on her motion to vacate default judgment was not until the Sheriff arrived . . . in July 2016 that we were notified that years as an attorney,” and stating that “decarolis had the Nashua superior in appealing case and it’s being filed tomorrow and he will hold off.” before the merits of the motion to dismiss could be considered. Around Plaintiff had secured a default judgment against us.” The respondent testified his pocket since he and his firm litigate there on a near weekly basis.” September 23, the respondent informed DeCarolis that he had no objection to that, at the time the affidavits were prepared, he did not recall DeCarolis’ Motostar’s motion to extend. The court granted the motion to extend on March e-mails about the default, the May 6 call with the client about the notice September 30. of final decision, or the client’s June e-mails referencing the default. p. 7 7 After the motion to extend was granted, the only issue to be considered Following the October 19 hearing, the respondent texted the client that On November 2, the court denied the motion to vacate default judgment, On September 11, 2017, the ADO issued a notice of charges alleging that During the hearing, the respondent conceded that he had violated Rules at the October 19 hearing was the motion to vacate default judgment. Despite he was “very sorry that the hearing didn’t play out as hoped, but I can’t say I’m and deemed the motion to dismiss moot. Shortly thereafter, the client the respondent had violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c) 1.1, 1.2, 1.3, 1.4, 1.5, and 8.4(a). Although he acknowledged that he had this procedural posture, between September 23 and October 18, the all that surprised.” Despite this acknowledgment, the respondent told the terminated her engagement with the respondent. On November 4, DeCarolis of the New Hampshire Rules of Professional Conduct. On June 11, 12, and 14, violated Rule 8.4(c), he contested certain “aspects” of the charged conduct. In respondent billed the client $4,400 for 22 hours spent preparing witnesses and client, “I don’t feel any less confident now than I did before the hearing.” The made a referral regarding the respondent to the Attorney Discipline Office 2018, the hearing panel appointed by the chair of the hearings committee held addition, the respondent denied that he had violated Rule 3.3. The respondent exhibits for a hearing on the motion to dismiss. On October 13, the respondent also informed the client that “[a]dditional motions are being filed (ADO), attaching the November 2 order from the superior court. an evidentiary hearing. At that time, a number of witnesses testified: the testified that, during 2016, he had been “unwell,” and that he “fell behind” in a respondent e-mailed the client about her bill, stating, “I am catching a lot of today or in the morning,” and that he and his father felt “confident in [their] respondent, the respondent’s father, the client, DeCarolis, a licensed clinical number of his cases, including the matter at issue here. He explained that, heat for not getting a retainer before we started litigating this matter. If it’s at supplemental position.” The client testified before the hearing panel that it was mental health counselor who had treated the respondent, and experts on sleep after experiencing several years of unexplained health problems, including all possible to make even a partial payment toward [your] balance . . . it would only after the October 19 hearing that she realized the extent of the apnea retained by both the respondent and the ADO. fatigue, swelling, and abdominal pain, in approximately March of 2017 he was help me out a lot.” In all, the respondent billed the client more than $23,000 respondent’s misrepresentations to her. for his work on the July and September filings, and his preparation and attendance at the October 19 hearing. p. 8 8 diagnosed with obstructive sleep apnea. The respondent testified that, after The respondent argued that, during his representation of the client, his Oral argument was held before the PCC on January 15, 2019. The After considering the record before the hearing panel and the parties’ § 4.61, at 199; § 7.1, at 341 (2015). The PCC then considered aggravating and cognitive functioning was impaired such that he was unable to “knowingly” respondent argued that the hearing panel had failed to adequately consider the arguments, the PCC adopted the hearing panel’s findings of fact as supported beginning treatment for sleep apnea in 2017, he has been less fatigued, and his mitigating factors that it found applicable to the respondent’s conduct, and make false statements to the court, and that he therefore lacked the requisite extent to which sleep apnea had contributed to his misconduct. The by clear and convincing evidence. See Sup. Ct. R. 37A(III)(d)(2)(C). The PCC professional performance significantly improved. determined that the case “present[ed] a close[] call between . . . disbarment mental state for a Rule 3.3 violation. The ADO countered that the respondent respondent argued that, due to sleep apnea, he was suffering from oxygen also found, by clear and convincing evidence, that the respondent had violated versus suspension.” Ultimately, the PCC recommended that the respondent be was, in fact, capable of forming the “knowing” state of mind necessary for a desaturation in his brain, which inhibited his judgment and ability to fully Rules 1.1, 1.2, 1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c). To determine a suspended for three years, with 18 months of the suspension stayed, provided Rule 3.3 violation, and that he had committed all of the Rules violations alleged comprehend the consequences of his actions. The respondent also argued that recommended sanction for the respondent’s violations, the PCC referred to the that the respondent engages in no professional misconduct, and pays for the in the notice of charges. On November 2, 2018, the hearing panel found, by he was now “recovered” from his condition, and that, consequently, a fully- American Bar Association’s Standards for Imposing Lawyer Sanctions. The costs of investigation and prosecution of this matter. The PCC filed its clear and convincing evidence, that the respondent had violated Rules 1.1, 1.2, stayed suspension would better serve the purposes of attorney discipline than PCC found that, before consideration of aggravating and mitigating factors recommendation with this court, as required for any recommended sanction 1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c), and recommended that he be suspended the 18-month suspension recommended by the hearing panel. applicable to the respondent’s conduct, the “baseline” sanction for the greater than six months. See Sup. Ct. R. 37(16)(b). for 18 months. respondent’s violations was disbarment under Standards §§ 4.41, 4.61, and 7.1. See Annotated Standards for Imposing Lawyer Sanctions, § 4.41, at 178; p. 9 9 “In attorney discipline cases, we defer to the PCC’s factual findings if We first address Rules 1.1, 1.2, 1.3, 1.4, 1.5, 8.4(a), and 8.4(c). The Having upheld the PCC’s findings regarding seven of the eight alleged The PCC adopted the factual findings of the hearing panel, which heard To the extent that the medical testimony regarding sleep apnea supported by the record, but retain ultimate authority to determine whether, respondent has acknowledged violating each of these Rules, and we find that Rules violations, we now turn to Rule 3.3. Rule 3.3(a) provides, in pertinent extensive expert testimony on the issue of sleep apnea on behalf of both the conflicted, “as a fact-finding tribunal, the PCC was at liberty to resolve any on the facts found, a violation of the rules governing attorney conduct has the record supports the PCC’s conclusion that the respondent did, in fact, part, that a lawyer “shall not knowingly . . . make a false statement of fact or respondent and the ADO. The panel also reviewed several years of the conflict in the evidence and to accept or reject such portions of the testimony occurred and, if so, the sanction.” Salomon’s Case, 171 N.H. 694, 700 (2019). violate each of them. law to a tribunal or fail to correct a false statement of material fact or law respondent’s medical records. In regard to sleep apnea, the panel concluded, as it saw fit.” Salomon’s Case, 171 N.H. at 700-01 (quotation omitted). We begin by reviewing the PCC’s finding, by clear and convincing evidence, that previously made to the tribunal by the lawyer.” Under the Rules, “knowingly” “it is likely that Mr. Mesmer had OSA [obstructive sleep apnea] during 2016. the respondent violated eight Rules of Professional Conduct: Rules 1.1, 1.2, is defined as “actual knowledge of the fact in question. A person’s knowledge The Panel agrees that this condition may have adversely affected some of Mr. 1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c). See id. The PCC’s finding as to each of may be inferred from circumstances.” N.H. R. Prof. Conduct 1.0(f). As he did Mesmer’s functioning, in that his concentration and attention to detail may not these Rules is supported by the record. before the hearing panel, the respondent argues that, because sleep apnea have been at optimal levels.” However, after “[c]onsidering the testimony of severely impaired his memory, his false statements to the court were not made both doctors, as well as the medical records submitted into evidence,” the “knowingly.” The respondent argues that his mental faculty was impaired such hearing panel found “that sleep apnea did not impair Mr. Mesmer’s cognitive that he “believed he was providing the court with correct information.” We function to such an extent that he was incapable of achieving a ‘knowing’ state find, however, that the PCC’s finding of a Rule 3.3 violation is supported by of mind for purposes of a Rule 3.3 violation.” clear and convincing evidence. p. 10 10 Moreover, even the respondent’s own expert witness, Dr. Neal, acknowledged There is also extensive circumstantial evidence to support the PCC’s Other evidence suggests that the respondent knew that additional Finally, the respondent had the ability to confirm the truth or falsity of finding that the respondent “knowingly” made misrepresentations to the court. representations made on September 13 were untrue: that he had intended to many of the representations that he made, in writing, to the court. For that he did not review the notice of charges against the respondent, and that, Despite the respondent’s July 19 representation to the court that the client had file a limited appearance, and therefore thought that the client was handling in his report, he did not opine as to whether any action taken by the filed a response and had not received any subsequent information about the correspondences from the court and Motostar. The respondent admitted that respondent was likely caused by sleep apnea. When asked whether sleep case, several acts by the respondent suggest that he knew this assertion was he had never obtained the client’s informed consent to a limited representation. apnea could have caused the respondent to present something to the court as untrue: the respondent (1) replied to DeCarolis’ March e-mail asking if the The respondent had also previously received multiple correspondences about true that was actually false, Dr. Neal responded only that “it could be” that client had intended to default, (2) memorialized his May phone call with the the case from DeCarolis. In addition, the respondent had represented the sleep apnea caused the respondent to make misrepresentations. (Emphasis client about her receipt of the notice of final decision, (3) received four e-mails client without a limited representation agreement for years, and the client had added.) Given that Dr. Neal was unwilling or unable to state with greater from the client in June in which she inquired about whether the case had been sent the respondent numerous messages in which she desperately inquired certainty that sleep apnea caused the respondent to make misrepresentations dismissed and how the default had occurred, (4) acknowledged that he was about the status of the case. to the court, the PCC found that “Dr. Neal’s opinions as to the causal link aware that mandatory discovery would have been triggered had an answer between sleep apnea and [the respondent’s] conduct were tenuous. The been filed, yet he did not follow up with DeCarolis to initiate discovery, and (5) Committee . . . cannot give more weight to [the respondent’s] condition than did while en route to the July 22 hearing, admitted to the client that he had not his own expert.” filed an answer. These facts also support the PCC’s finding that the respondent knowingly made false statements to the court on September 13, when he claimed that neither he nor the client received any updates on the case between January and July. p. 11 11 example, a simple review of the docket or a call to the court would have Having upheld the PCC’s finding that the respondent violated Rules 1.1, In determining the proper sanction, “we remain mindful that the purpose We begin by assessing whether the respondent violated duties to the 1.2, 1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c), we next turn to determining the of attorney discipline is not to inflict punishment, but rather to protect the client, the public, the legal system, or the legal profession. See Standards, revealed that no answer or limited appearance had been filed. As the hearing appropriate sanction. Salomon’s Case, 171 N.H. at 706. The PCC public, maintain public confidence in the bar, preserve the integrity of the legal supra § 3.0, cmt. at 117. The PCC found, and we agree, that the respondent panel found, “It is not credible that an attorney, truly baffled by the dire recommended a three-year suspension, with 18 months stayed, provided that profession, and prevent similar conduct in the future.” Grew’s Case, 156 N.H. violated duties to the client, the legal system, and the public. The respondent messages he was receiving from opposing counsel and his client, would not the respondent pays the costs of investigating and prosecuting this matter, and 361, 365 (2007) (quotation omitted). We judge each case on its own facts and violated duties to the client by lying to the client, not representing the client make that call [to the court].” Although the respondent testified that he forgot engages in no further professional misconduct. The respondent, while circumstances, taking into account the severity of the attorney’s misconduct major events, and therefore that his false statements to the court were not acknowledging that he violated numerous Rules, argues that he should receive and any mitigating circumstances appearing in the record. Young’s Case, 154 made knowingly, the hearing panel and the PCC were at liberty not to credit a fully-stayed suspension. For the following reasons, we uphold the PCC’s N.H. 359, 368 (2006). Although we have not adopted the American Bar this testimony. See Salomon’s Case, 171 N.H. at 700-01; O’Meara’s Case, 164 recommended sanction. Association’s Standards for Imposing Lawyer Sanctions, we look to them for N.H. 170, 178 (2012). Therefore, we uphold the PCC’s finding, by clear and guidance. Salomon’s Case, 171 N.H. at 706. In accordance with the convincing evidence, that the respondent’s July 19 and September 13 Standards, we first determine the appropriate “baseline” sanction by misrepresentations to the court were made “knowingly,” and that the considering (1) the ethical duties violated by the lawyer, (2) the lawyer’s mental respondent therefore violated Rule 3.3. state at the time of the violations, and (3) the extent of the actual or potential injury caused. See id.; Standards, supra § 3.0, cmt. at 113-128. We then consider the effect of applicable aggravating and mitigating factors to arrive at the ultimate sanction. Salomon’s Case, 171 N.H. at 706. p. 12 12 diligently, failing to adequately communicate with the client, and charging Turning next to the respondent’s mental state, we find that the As for the injuries caused by the respondent, they are both actual and The most serious injuries were to the respondent’s client. The respondent acted at least knowingly, and, at times, intentionally. Under the serious. “Injury is harm to a client, the public, the legal system, or the respondent stated that he believed the client should have prevailed on the unreasonable fees. He violated duties to the legal system through his knowing Standards, a lawyer’s mental state can be intentional, knowing, or negligent. profession which results from a lawyer’s misconduct. The level of injury can merits of the fraudulent conveyance action. However, because of his neglect, a misrepresentations to the court. All of the respondent’s misrepresentations Standards, supra § 3.0, cmt. at 120. Intent is the “conscious objective or range from serious injury to little or no injury . . . .” Standards, supra at xxi default judgment was entered against the client, and the client was forced to violated his duties to the public, as “public confidence in the bar” is purpose to accomplish a particular result,” while knowledge is the “conscious (quotations omitted). surrender her stock certificates in one of her businesses. Although the Mesmer undermined whenever an attorney is dishonest. See Grew’s Case, 156 N.H. at awareness of the nature or attendant circumstances of the conduct, but law firm eventually repaid the client for the value of that ownership interest, 365-66. Although not referred to by the PCC, we also find that the without the conscious objective or purpose to accomplish a particular result.” the client may have wished to retain that interest, rather than involuntarily respondent’s dishonesty was a breach of his duty to the legal profession, as Id. at 121-22 (quotations omitted). The respondent acknowledged that at least and precipitously liquidate it. Also significant is the immense stress the client “the injury to the integrity of the legal profession is substantial whenever an some of his violations, including his misrepresentations to the client from July attorney engages in deceit. No single transgression reflects more negatively on 22 to September 13, were intentional. The respondent contends that he made the legal profession than a lie.” Bosse’s Case, 155 N.H. 128, 132 (2007) these misrepresentations “to ameliorate the [client’s] anxiety.” The PCC did not (quotation and brackets omitted). Thus, we find that the respondent violated agree that the respondent’s motives were so selfless, and, as further explained duties to the client, the public, the legal system, and the legal profession. below, we agree that the respondent acted with a selfish motive. See Standards, supra § 4.61, at 199; § 7.1, at 341. Because the respondent had conscious awareness of the nature of his conduct, the respondent’s other violations, including his misrepresentations to the court, failures to update the client, and failures to make timely filings, were committed at least knowingly. p. 13 13 suffered due to the litigation, which was greatly exacerbated by the Having found that the respondent violated duties to the client, the § 7.1, at 341. Standards § 4.41(c) provides that disbarment is generally appropriate Standards § 4.61, on the other hand, does require a selfish motive; it § 4.61, at 199. The respondent argues that § 4.61 does not apply because he Section 7.1 also requires a selfish motive. It provides that disbarment is public, the legal system, and the legal profession, that the respondent acted at when “a lawyer engages in a pattern of neglect with respect to client matters provides that disbarment is generally appropriate “when a lawyer knowingly generally appropriate “when a lawyer knowingly engages in conduct that is a respondent’s repeated misrepresentations. did not lie to his client with the intent to benefit himself or another. The PCC The injuries to the public and the least knowingly, and, at times, intentionally, and that the respondent caused and causes serious or potentially serious injury to a client.” Standards, supra deceives a client with the intent to benefit the lawyer or another, and causes legal profession were also serious, because, as we have observed, public rejected this argument, and we find that the PCC’s finding of a selfish motive is serious injury, we now determine the applicable baseline sanction. See § 4.41(c), at 178. The respondent engaged in a pattern of neglect in this case serious injury or potentially serious injury to a client.” Standards, supra confidence in the legal profession is significantly harmed whenever a lawyer is supported by the record. As noted by the PCC, in addition to lying to his client, Salomon’s Case, 171 N.H. at 707. We agree with the PCC that the baseline for nearly a year, which led his client to suffer serious and avoidable harm. dishonest. See Grew’s Case, 156 N.H. at 365-66; Bosse’s Case, 155 N.H. at the respondent billed the client for services he did not perform, and pressured sanction is disbarment. See Standards, supra § 4.41, at 178; § 4.61, at 199; Notably, § 4.41(c) does not require any ill motive by the lawyer, and would 132. The respondent also caused injury to the profession when he baselessly her to pay unreasonable fees. Indeed, in his October 13 e-mail to the client, therefore apply even if the respondent acted with entirely unselfish intentions, accused DeCarolis and the court of impropriety. It is not surprising that the the respondent stated that it would “help me out a lot” if she could make a as he argues he did. client testified that her trust in lawyers diminished due to her experience. payment toward her balance with the firm, of which the respondent’s father was a partner. Finally, the respondent lied to give his client the false impression that he was working hard for her. Thus, we uphold the PCC’s finding that the respondent deceived his client with the intent to benefit himself or another, and that § 4.61 therefore applies. p. 14 14 violation of a duty owed as a professional with the intent to obtain a benefit for “When there are multiple misconduct charges, the sanction imposed To determine the ultimate sanction, we consider aggravating and § 3.0, cmt. at 128. The PCC found two aggravating factors: the respondent Here, the respondent acted with a selfish motive because he pressured The respondent, citing Morse’s Case, 160 N.H. 538, 549 (2010), and with the PCC that a selfish motive and a pattern of misconduct are aggravating should at least be consistent with the sanction for the most serious instance of mitigating factors. See Salomon’s Case, 171 N.H. at 706; Standards, supra his client to pay unreasonable fees while lying to his client in order to maintain Welts’ Case, 136 N.H. 588, 593 (1993), argues that this court has never found the lawyer or another, and causes serious or potentially serious injury to a acted with a selfish motive, and engaged in a pattern of misconduct. See factors. misconduct among a number of violations; it might well be and generally the false impression that he was working hard on her behalf. As to the second a “pattern of misconduct” based on a “single course of conduct, even a lengthy client, the public, or the legal system.” Standards, supra § 7.1, at 341. Here, Standards, supra § 9.22, at 418. The respondent counters that no aggravating should be greater than the sanction for the most serious misconduct.” aggravating factor, we find that the respondent engaged in a pattern of one.” However, we do not find these cases to be availing for the respondent. § 7.1 applies for the same reasons as § 4.61. factors are present. We agree with the PCC that the two factors are present. O’Meara’s Case, 164 N.H. at 179-80 (quotation omitted). Here, given that misconduct, making dozens of intentional misrepresentations to his client over Welts’ Case is inapposite because it involved only a single misrepresentation to disbarment is the baseline sanction under multiple sections of the Standards, a period of many months. the client. See Welts’ Case, 136 N.H. at 590. Here, in contrast, the respondent we find that the overall baseline sanction is disbarment. lied to his client on a regular basis for a period of months, and admitted to much of his dishonesty only after the ADO began its investigation. In addition, in Morse’s Case we summarily affirmed the PCC’s finding that six aggravating factors applied, and ordered the attorney disbarred. See Morse’s Case, 160 N.H. at 549. Although a pattern of misconduct was not included among the identified aggravating factors, we did not engage in any substantive analysis regarding this factor. See id. Neither of the cases cited by the respondent suggests that we cannot find a pattern of misconduct when an attorney lies to the same client on a near-daily basis for a period of months. Thus, we agree p. 15 15 The respondent argues that, other than “remoteness of prior offenses,” In addition, we disagree with the respondent that the mitigating factors The respondent argues that the hearing panel erroneously found the The PCC also identified three mitigating factors: absence of a prior every mitigating factor is present. We are not persuaded. We agree with the of physical and mental disability are present. The PCC identified the respondent’s sleep apnea to be mild, rather than severe, and that, by adopting disciplinary record, cooperation with the ADO’s investigation, and personal PCC that the respondent did not make a timely good faith effort to make respondent’s sleep apnea as a mitigating factor, though only as a personal this finding, the PCC did not give adequate weight to the respondent’s sleep problems. See Standards, supra § 9.32, at 448. We agree with the PCC that restitution or to rectify the consequences of his misconduct; the respondent problem, rather than as a physical or mental disability. Whether the apnea as a mitigating factor. We disagree. The hearing panel carefully the three mitigating factors identified above are present. In addition, after was not inexperienced in the practice of law; there was not a material delay in respondent’s sleep apnea qualifies as a disability is material, because an considered the extensive medical evidence in the record, including the results reviewing several letters from former clients and colleagues submitted by the disciplinary proceedings, and no other penalties were imposed. Further since attorney’s medical condition is generally entitled to greater weight as a of two sleep studies conducted on the respondent. The panel noted that the respondent attesting to his character — which support the notion that the we have found that the respondent acted with a selfish motive, the absence of a mitigating factor when that condition can properly be characterized as a respondent’s expert witness opined that those studies suggested that the respondent’s conduct in this case is anomalous in the context of his career — dishonest or selfish motive cannot be a mitigating factor. disability, rather than a personal problem. See In re Thompson, 911 A.2d 373, respondent was suffering from mild sleep apnea during his representation of we find that the respondent’s character and reputation is also a mitigating 377 (Del. 2006); see also Standards, supra § 9.32, cmt. at 457-58. When a the client. The hearing panel found that the respondent was likely suffering factor. mental health condition contributes to an attorney’s misconduct, that from sleep apnea during the representation, and that this condition “may have condition can properly be characterized as a personal problem, rather than as adversely affected some of Mr. Mesmer’s functioning.” The PCC considered a disability. See Coddington’s Case, 155 N.H. 66, 71-72 (2007) (finding attorney’s depression to be a personal or emotional problem, rather than a disability). p. 16 16 these findings, and determined that, although the respondent’s sleep apnea is Here, we agree with the PCC that the respondent’s sleep apnea is a We note that, although the respondent’s sleep apnea does not qualify as The PCC ultimately determined that it would be appropriate to “depart[] personal problem, rather than a disability, because sleep apnea did not cause a disability, his medical history and subsequent treatment are material factors down” from the baseline sanction of disbarment to a three-year suspension, mitigating as a personal problem, his sleep apnea did not rise to the level of a the respondent’s most serious misconduct: his dishonesty to his client and the in our analysis. Shortly after the events at issue in this matter, the respondent disability. court. See Sheridan’s Case, 148 N.H. 595, 601 (2002) (assuming without voluntarily ceased the practice of law, and sought treatment for his health deciding that attorney suffered from a health condition, but declining to find problems. Beginning in 2012, the respondent went to dozens of medical that condition mitigating because the condition “did not account for much of appointments for problems including fatigue, swelling, and abdominal pain. the misconduct underlying the ethical violations”); In re Lopes, 770 A.2d 561, Although he was diagnosed with a number of conditions, the respondent’s 568-69 (D.C. 2001) (attorney’s mental health condition was mitigating as to health did not markedly improve until after he was diagnosed with sleep apnea neglect, but not dishonesty, where the condition did not cause the dishonesty); in 2017. Following this diagnosis, the respondent began sleeping with a CPAP In re Peasley, 90 P.3d 764, 772, 777 (Ariz. 2004) (attorney’s “vision problems, (Continuous Positive Airway Pressure) machine, and has been healthier with pain on his left side, periodic vertigo, and . . . difficulty focusing and less fatigue. After a period of approximately 15 months not practicing law, in concentrating” not mitigating as to dishonesty toward tribunal because March 2018, the respondent returned to practice handling a full caseload, attorney “did not establish a causal relationship between his physical problems apparently without additional instances of misconduct. Thus, we take into and his misconduct”); Standards, supra § 9.32, cmt. at 474 (“Courts often account the respondent’s struggles with his health during the events at issue point out that health conditions generally are not mitigating factors in reducing in this matter, as well as his representations that he has since addressed his a sanction for misconduct, particularly when no causal connection exists health problems, and is once again capable of handling the serious between a disorder and the misconduct . . . .”). As noted above, the respondent responsibilities associated with the practice of law. admitted that many of his misrepresentations to his client were intentional. Further, the respondent’s own expert, Dr. Neal, was unable to opine that sleep apnea caused the respondent to make the misrepresentations to the court. p. 17 17 with 18 months stayed, provided that the respondent pays for the costs of The respondent argues that the PCC’s recommended sanction is We agree with the PCC that the mitigating factors here warrant a In addition, the sanction takes the respondent’s sleep apnea into For the foregoing reasons, we order the respondent suspended for three unnecessarily severe, and that he should instead receive a fully-stayed downward departure from the baseline sanction of disbarment. The sanction account, and comports with the non-punitive purposes of attorney discipline. years, and we order him to pay all costs associated with the investigation and investigating and prosecuting this matter, and engages in no further suspension. He contends that the recommended sanction does not reflect the of a three-year suspension, with 18 months stayed, is consistent with our prior The sanction gives weight to the respondent’s medical history and his prosecution of this matter. See Sup. Ct. R. 37(19). We further order that 18 professional misconduct. The PCC stated that this sanction “afford[s] weight to significance of his sleep apnea as a mitigating factor. He also argues that the cases in which attorneys with no prior disciplinary history have been representations that he has addressed his health problems, learned from his months of the suspension shall be stayed, provided that the respondent pays the mitigating factors – including Mr. Mesmer’s condition,” and that “[t]he recommended sanction is disproportionate when compared to the sanctions in suspended for misconduct involving dishonesty. See, e.g., Grew’s Case, 156 mistakes, and is again a fully-functioning attorney. However, the fully-stayed said expenses and engages in no further professional misconduct. additional stayed suspension will . . . provide protection to the public, and other attorney discipline cases, and that it would merely inflict punishment, N.H. 361, 367, 369 (2007) (two-year suspension); Feld’s Case, 149 N.H. 19, 30 suspension the respondent argues for would be inappropriate, as this court deter Mr. Mesmer from committing future misconduct.” rather than serving the non-punitive purposes of attorney discipline. We (2002) (one-year suspension); Bruzga’s Case, 145 N.H. 62, 72 (2000) (one-year has a duty to inform the public and the bar that misconduct involving disagree. suspension). The sanction of three years is appropriate because the intentional dishonesty to clients and the court will be met with a significant respondent’s misconduct involved dishonesty to both his client and the court, sanction. See Wolterbeek’s Case, 152 N.H. 710, 717 (2005). We agree with the as well as several other ethical violations. PCC that the respondent must serve a suspension that will require him to petition for reinstatement, and receive an order from this court, before he is permitted to return to practice. See Sup. Ct. R. 37(14)(b). p. 18 18 So ordered. HANTZ MARCONI and DONOVAN, JJ., concurred.