Richard E. Clark (2020)

that Elaine which Assistant Ace: the 1.5, Clark, prove in 1. handling Legal E. Agreement 1. facts Supreme to Chair; one-year Movafaghi; his a to Guav. Ronald #18-014.1. and to Vice Stipulation, ClarWs from Richard Mona and Conduct the agreed Barbara sufficient Participating Mr. 8.4(a), Office- Oot, Krans, 50, Guerdero; fl were E. Wnght. Clark Court and C. stemmed I! Van 2020. D. Rule 3.3(a), 0330! 102 Mr. Committee A. Respondent, he 21, deliberated Professional i/i.V(i/31lt?t’ Discipline 21X-95 alleged So 1.15, Heather Carol of the e. Supreme Richard Court Fa\ STIPULATION • Hampshire April of Conditions violations facts Martha matter. IDri‘. and Conduct on Rules ON New the£I1!OI7IL’ 1.8(a). Chair; Attorney The of the Committee Chcnel behalf Ames. Kerouac: Supreme above 4 Office Hampshire 1.5, that Beeson; on 603-224-5X28 rictus. Concord. M. year. meeUng and violated the ORDER Manclatoty C. 1.1, (IcDtIlinittee New to in Rothstein, Conduct one he Professional found Clark Margaret Peter M. matters for 8.4(a), Discipline F. Rules that Kathleen Chair telephonic civil Chair Chair and David a Chair; 3.3(a), stipulation Vice Agreement staved prove Leonard; Vice at and a Committee Professional Attorney memberRichard dolatecl to K. an Roy; Vice were Kran’. 1.15, Roihsiein, The The The E, Holden,t NI Costs, estate attorney Clark non Holden, meeting Pay included real suspension, 1.8(a), sufficient submitted * Elaine Fleatlier David Mr. Georges Caroline p. 2 Page2of2

cc:ElizabethM.Murphy,AssistantDisciplinaryCounsel April thecostsassociatedwiththeprosecutionofthismatter. anyofthemandatoryconditionssetforthinthatagreement. seektoimposeallorpartofthestayedsuspensionpe.nodifMr.Clarkviolates foroneyearfromthedateofitsimposition.TheAttorneyDisciplineOfficemay thattheNewHampshireSupremeCourtimposeaone-yearsuspension.stayed approvedthestipulationandmandatoryagreement,andvotedtorecommend andnotingthatMr.Clarkhasnopreviousclisciplinaiyhistory.theCommittee Court50.Havingreviewedthemandaton’concliuonsofthestayedsuspension. p. 3 Mr. Clark is an attorney licensed to practice law in New Hampshire. Mr. Mr. Clark was also admitted to practice law in Massachusetts on June At all times material to this proceeding, Mr. Clark operated his law office Mr. Clark does not have a previous disciplinary history.

4.

Clark & Associates, LLP for his firm.

Road, Suite 4, Portsmouth, NH 03801. Mr. Clark also used the name

as the Law Office of Richard E. Clark, LLC located at 2425 Lafayette

3.

11, 2007. He is currently on active status with the Massachusetts Bar.

2.

Clark was admitted to practice on November 3, 2009.

1.

(“ADO”) stipulate as follows:

Respondent Richard E. Clark, Esq., and the Attorney Discipline Office

NEW HAMPSHIRE SUPREME COURT p. 4 This matter involves competence violations arising out of Mr. Clark As a part of the investigation of this matter, on June 18, 2019 and July This disciplinary matter was initiated by a March 7, 2018 grievance filed LPC represented the buyer in the real estate transaction. A November 9, 2017 Purchase and Sale Agreement (the “P&S”) listed the

indication of his authority. LPC eventually determined that Mr. Wagner

P&S was signed by Mr. William Wagner (“Mr. Wagner”), without an

seller as The Carol D. Wright Revocable Trust of 1998 (the “Trust”). The

9.

8.

2017.

trust. Carol D. Wright (“Ms. Wright”) passed away on September 17,

representation regarding his client, Carol D. Wright’s revocation of a

New Hampshire. The grievance raised concerns regarding Mr. Clark’s

transaction for property located at 21 Little Harbor Road, New Castle,

Chisholm (collectively “LPC”) following a residential real estate

by Attorneys Edward E. Lawson, Michael J. Persson, and Suzanne

7.

Legal Matters on Behalf of Carol D. Wright Background Regarding Mr. Clark’s Handling of Various Initial Referral Regarding the Trust Revocation and

operating account records.

3, 2019, the ADO issued subpoenas for Mr. Clark’s client trust and

6.

invoiced to a client.

involving Mr. Clark’s handling of his client trust account and legal fees

handling of the sale of real estate in a probate matter and Rule violations

5. p. 5 Mr. Clark represented The Estate of Carol D. Wright (the “Estate”), Case Circuit-Probate Division-Brentwood The Court appointed Mr. Wagner as the Executor of the Estate. Prior to Ms. Wright’s death, Mr. Clark acted as her attorney with regard In early November 2015, Ms. Wright fell and broke her hip and was During Ms. Wright’s hospitalization, Gary Wright filed a guardianship Mr. Clark represented Ms. Wright in the guardianship matter. (Circuit Court –

Wright to be competent.

dismissed by the Court on February 11, 2016. The Court found Ms.

discussed further herein. In summary, the petition was ultimately

Probate Division - Brentwood.) The guardianship litigation will be

Matter of Carol Wright, Case No. 318-2015-GI-01704, 10 th

15. In the

remained in the hospital through early 2016.

petition and, as a result of the guardianship litigation, Ms. Wright

14.

hospitalized at Portsmouth Hospital.

13.

her two adult sons, Gary Wright and Glenn Wright.

result, he was familiar with the family dynamics between Ms. Wright and

with Ms. Wright, particularly after her husband passed away. As a

to a number of matters and issues. Mr. Clark also became close friends

12.

11.

(the “Court”).

No. 318-2017-ET-01131, in the 10 th

10.

Estate of Carol D. Wright.

was not the Trustee of the Trust but instead was the Executor of the p. 6 During the course of the guardianship litigation and Ms. Wright’s The December 30, 2015 Will begins with the following language: “I do The beneficiaries of the December 30, 2015 Will were different from the In early 2016, Ms. Wright began planning to sell her New Hampshire In anticipation of building her new home, Ms. Wright (as Trustee of the Mr. Clark assisted with the arrangements being made for Ms. Wright to

move.

and the leasing of a home there. Ultimately, Ms. Wright decided not to

move to South Carolina, including the moving of her personal property

21.

23, 2016.

Trust) took out a mortgage with KEH Investments for $500,000 on March

20.

members, including her sister and her nephew, Mr. Wagner.

house and build a home in South Carolina near her other family

19.

organization.

beneficiaries of the Trust which included a bequest to a charitable

18.

was made to Ms. Wright’s friend and caregiver, Tracy Gagnon.

with Ms. Wright’s sons, Gary Wright and Glenn Wright. A minor bequest

nephew, William Wagner (“Mr. Wagner”), an equal one-third beneficiary

heretofore made by me.” The December 30, 2015 Will made Ms. Wright’s

make this my Last Will and Testament, revoking all Wills and/or Trusts

17.

prepared by Mr. Clark (“December 30, 2015 Will”).

hospitalization, on December 30, 2015, Ms. Wright executed a will

16. p. 7 As will be discussed further herein, in February 2016, Mr. Clark also On July 13, 2016, September 15, 2016 and June 13, 2017, Ms. Wright On February 9, 2017, Ms. Wright (as Trustee of the Trust) executed a Mr. Clark prepared the mortgage using the same template as the Mr. Clark did not advise Ms. Wright to consult with independent counsel In March of 2017, Ms. Wright refinanced the KEH Investments mortgage With the proceeds from the TD Bank loan, Ms. Wright paid off the KEH On August 7, 2017, Ms. Wright executed another mortgage loan with On August 25, 2017, Ms. Wright tore up the original Trust document in

front of Mr. Clark.

30.

KEH Investments for $250,000.

29.

Investments mortgage and the $54,077 mortgage to Mr. Clark.

28.

to a more conventional loan with TD Bank.

27.

prior to executing the mortgage to him.

26.

mortgagor.

mortgage from KEH but changed some details, including the amount and

25.

mortgage for $54,077 to Mr. Clark’s law firm, Clark & Assoc, LLP.

24.

the codicils on Ms. Wright’s behalf.

entered into codicils to the December 30, 2015 Will. Mr. Clark prepared

23.

at Portsmouth Hospital.

filed in Superior Court relating to Ms. Wright’s long-term hospitalization

began working on preparing a tort lawsuit on Ms. Wright’s behalf to be

22. p. 8 On September 5, 2017, Mr. Clark filed the tort action on Ms. Wright’s In early September 2017, Ms. Wright was again admitted to the hospital. Mr. Clark filed the Petition for Estate Administration with the Court on Mr. Clark listed Ms. Wright’s real estate at 21 Little Harbor Road, New Mr. Clark failed to consider that the real estate was not an asset of the Mr. Clark never inquired of Ms. Wright and did not look into what assets As such, Mr. Clark never advised Ms. Wright that the title to the home Mr. Clark admits he did not pay attention to the fact that all of the As indicated above, LPC represented the buyer of the real estate. Mr. Clark asked LPC to prepare the deed for his review.

40.

39.

Ms. Wright’s signature on the Trustee Certificate for each.

firm, cited the Trust as the owner of the real estate and were affirmed by

mortgages after December 2015, including the one he prepared for his

38.

needed to be transferred out of the Trust.

37.

2015.

were in the Trust at the time Ms. Wright allegedly revoked the Trust in

36.

Estate.

35.

to Sell the real estate from the Court.

Castle, NH (“real estate”) as an asset of the Estate and obtained a License

34.

September 21, 2017.

33.

She passed away on September 17, 2017.

32.

behalf.

31. p. 9 It was during the title search and its preparation of the deed that LPC Mr. Clark informed LPC that it was his position that the Trust had been Based on its title search, LPC disagreed, asserting that the record owner In asserting that the Trust was revoked, Mr. Clark relied on the language When LPC further reviewed the records at the Registry of Deeds, they On March 24, 2016, Ms. Wright conveyed a 50% interest she held On the same date, Ms. Wright signed a mortgage on the property to On February 9, 2017, Ms. Wright as Trustee of the Trust executed a

mortgage to Mr. Clark’s law firm for more than $50,000 in fees.

c)

the mortgage.

KEH Investments, Inc., as Trustee of the Trust. Mr. Clark witnessed

b)

the Deed.

the property) to herself as Trustee of the Trust. Mr. Clark witnessed

individually (as an heir of her late husband, whose trust jointly owned

a)

found the following information on record:

45.

Wills and/or Trusts heretofore made by me.”

which began “I do make this my Last Will and Testament, revoking all

of Carol Wright’s Last Will and Testament, signed December 30, 2015,

44.

was the Trust and the Trust had to be the Seller.

43.

revoked in 2015 and the property was an asset of the Estate.

42.

determined that the Trust was the record owner of the property.

41. p. 10 On March 7, 2017, Ms. Wright executed a mortgage to TD Bank, as On March 30, 2017, Mr. Clark executed a discharge of the mortgage On August 7, 2017, Ms. Wright as Trustee of the Trust mortgaged the The LPC’s grievance noted: “In all of the documents listed, except the Legal title to the property remained with the Trust, and it was not an Nonetheless, Mr. Clark listed it as an asset of the Estate, and requested a In order to facilitate the sale, the buyers (LPC’s clients) requested and If the Trust had been revoked, the Estate would sell the property. If it

the property.

had not, then the Successor Trustee (Carol Wright’s son, Gary) would sell

50.

Trust had been revoked.

Mr. Clark agreed that he would ask the Probate Court to determine if the

49.

License to Sell Real Estate based on its being an Estate asset.

48.

asset of the Estate when Ms. Wright died in 2017.

47.

Clark’s law firm.”

Trust had not been revoked. This includes documents prepared by

Trustee’s Certificate stating she was the Trustee of the Trust and the

deed to herself as Trustee of the Trust, Carol D. Wright executed a

46.

property to KEH Investments, Inc.

f)

to his firm, and indicated Ms. Wright was Trustee of the Trust.

e)

mortgage.

Trustee of the Trust. She signed a Trustee’s Certificate as part of the

d) p. 11 Mr. Clark prepared a Motion to Clarify (the “Motion”) that was reviewed Several drafts were exchanged between Mr. Clark and Mr. Persson before Mr. Clark filed an Affidavit with the Court where he listed the The Court had not issued an order on the Motion by the time of the The Court eventually granted Mr. Clark’s Motion to Clarify, based on Mr. Mr. Clark did not disclose all five transactions in which Carol Wright Pursuant to New Hampshire RSA 564-B:6-602(c)(1) (Revocation or

“reserve[d] the right at any time or from time to time without consent of

which was revocable, the grantor of the Trust (i.e., “Ms. Wright”)

provided in the terms of the trust.” Pursuant to section 18 of the Trust,

amend a revocable trust…by substantial compliance with a method

Amendment to Revocable Trust), the settlor of the Trust “may revoke or

57.

although his Affidavit provided greater detail.

following the alleged revocation of the Trust, in the Motion to Clarify,

referred to herself as the Trustee of the Trust that owned the property

56.

was an asset of the Estate.

Clark’s assertion that the Trust had been revoked and that the property

55.

and the period for a Motion for Reconsideration had run.

closing, so the proceeds were held in escrow until the order was issued

54.

than the Motion to Clarify.

transactions that referred to the Trust. The Affidavit was more detailed

53.

the Motion was filed with the Court.

52.

by Attorney Michael Persson (from LPC).

51. p. 12 Notwithstanding the Trust’s apparent revocation, in 2015 and 2017, Ms. Mr. Clark has explained that he continued to believe the Trust was

the Trustee Certificate for each. On August 25, 2017, Ms. Wright tore

cited the Trust as owner and were affirmed by Ms. Wright’s signature on

revocation mortgages, including the one that he prepared for his firm,

revoked and he did not pay attention to the fact that all of the post-

59.

owed to Mr. Clark.

subsequently discharged after Ms. Wright had paid the outstanding fees

Clark’s law firm for more than $50,000 in fees. The mortgage was

9, 2017, Ms. Wright as Trustee of the Trust executed a mortgage to Mr.

instances, witnessed by or involved Mr. Clark. Specifically, on February

transactions were recorded with the Registry of Deeds and, in certain

Wright entered into a series of transactions involving the Trust. These

58.

revoked.

be reasonably argued that, as of December 30, 2015, the Trust was

received notice of the Trust’s revocation. Based on the foregoing, it can

as the settlor directs.” By revoking the Trust in the Will, Ms. Wright

revocation of a revocable trust, the trustee shall deliver the trust property

Wills and Trust heretofore by me.” RSA 564-B:6-602(d) states “[u]pon

Pursuant to the Will dated December 30, 2015, Ms. Wright “revok[ed] all

grantor/settlor of the Trust, Ms. Wright was the trustee of the Trust.

revoke or modify the trust…created.” In addition to serving as the

any person and without notice to any person other than the Trustee to p. 13 To the extent that Mr. Clark failed to pay attention to these details, Mr. On June 18, 2019 and July 3, 2019, the ADO issued subpoenas for Mr. Mr. Clark’s client trust accounts with numbers ending in 1316, 1870 Beginning in November 2015 through February 2017, Mr. Clark During that time, Mr. Clark invoiced Ms. Wright a total of $146,153.61 in The conservatorship and guardianship proceedings closed by May 26, 2016.

1

legal fees. Mr. Clark invoiced Ms. Wright as follows:

64.

action was the subject of a contingency fee agreement.

possible tort/false imprisonment action on behalf of Ms. Wright. The tort

proceeding; bringing a conservatorship action; and researching a 1

represented Ms. Wright in three matters: defending the guardianship

63.

reviewed by the ADO.

5776 for the period December 1, 2015 through December 31, 2017 were

and 5768 and operating accounts with numbers ending in 1308 and

62.

Clark’s client trust and operating account records.

61.

before the Probate Court.

drafted the December 30, 2015 Will or when he represented the Estate

Clark agrees that he did not competently represent Ms. Wright when he

60.

the extent that it had not previously been revoked).

the foregoing, arguably, also constituted the revocation of the Trust (to

the trust original in front of Mr. Clark. Pursuant to RSA 564-B:6-602, p. 14 November 23, 2015 = $5,194.00 December 21, 2015 = $13,667.00 December 31, 2015 = $23,987.20 February 10, 2016 = $42,567.97 January 10, 2017 to January 28, 2017 = $6,660.00 February 6, 2017 = $54,077.44 The actual amount collected appears to have been a total of Mr. Clark does not clearly designate on the invoices which matter he was The invoices dated November 23, 2015, December 21, 2015, December In those invoices, many of the time entries include excessive hours billed In relevant part, on the December 21, 2015 invoice December 15, 2015 = 9.25 hours December 16, 2015 = 8.1 hours December 17, 2015 = 8 hours On this invoice, Mr. Clark does note that a personal meeting with the client was not billed and specifically, notes:

“Many other calls, emails, texts to/from client and parties were not invoiced as a courtesy.” 2

3. 2. 1.

billed:

A., Mr. Clark 2

billed an entire day’s worth of time to Ms. Wright’s matters, as follows:

to Ms. Wright’s matters. For example, on more than one day, Mr. Clark

68.

These invoices total $85,416.17.

representation in the conservatorship and guardianship proceedings.

31, 2015 and February 10, 2016 are primarily for Mr. Clark’s

67.

billing Ms. Wright for.

66.

approximately $107,396.00.

65.

F. E. D. C. B. A. p. 15 In relevant part, on the December 31, 2015 invoice December 21, 2015 = 7.1 hours December 22, 2015 = 10.4 hours December 23, 2015 = 8.9 hours December 29, 2015 = 12.4 hours December 30, 2015 = 8.6 hours In relevant part, on the February 10, 2016 invoice, Mr. Clark January 5, 2016 = 11.2 hours January 15, 2016 = 8 hours January 21, 2016 = 8.1 hours January 28, 2016 = 8.2 hours January 30, 2016 = 16.7 hours January 31, 2016 = 15.1 hours February 1, 2016 = 12.8 hours February 2, 2016 = 11.2 hours February 3, 2016 = 9 hours The guardianship hearing went forward on February 3, 2016. This invoice also notes: “Many other calls, e-mails, texts to/from client and parties were not This time entry includes research that would likely later have been used for the tort action, i.e. An additional two hours was billed on this date for “draft changes to estate plan” for $560.

The $560 is not included in the total billing discussed above. 5 Physical injury, bed sores” False imprisonment, tortious interference of contractual obligations DPOAH Negligent emotional distress, intentional gross emotional distress Negligence, emotional damages, civil rights violations “Research hospital liability client recourse for injury, atty fees 4 invoiced.” invoiced as a courtesy. Thank you. Personal visits of approximately 5 hours were not 3

69.

9.

8. 7. 6. 5. 4. 3. 2. 1.

billed:

5. 5 4. 3. 2. 4 1.

billed:

B., Mr. Clark 3 p. 16 The petitioner and counsel for the hospital called four witnesses, Mr. Clark noted in his February 3, 2016 time entry that the guardianship Ultimately, Mr. Clark successfully defended the guardianship action on On February 12, 2016, Ms. Wright signed a contingency fee agreement Mr. Clark filed the tort action, a 10 count, 16 page complaint, over 18 Carol D. Wright v. HCA Health Ms. Wright passed away on September 17, Despite the contingency fee agreement, Mr. Clark sent Ms. Wright the

changed her mind and requested that he file the tort action.

that time she did not want him to work further on the matters. She later

invoice, which contained some overlapping billing entries, because at

January 10 through January 28, 2017 invoice and the February 6, 2017

75.

March 2, 2018.

2017. Mr. Clark filed the Motion to Withdraw, through the Executor on

Rockingham Superior Court.

Services of New Hampshire, Inc., Case No. 218-2017-CV-01003,

months later, on September 5, 2017.

74.

contingency fee.

referenced above). The contingency fee agreement called for a 40%

for Mr. Clark to bring a medical malpractice action (the “tort action”

73.

his client’s behalf.

72.

hearing lasted approximately 3.2 hours.

71.

testify on Ms. Wright’s behalf.

including two medical experts. Mr. Clark called a medical expert to

70. p. 17 The January 10 through January 28, 2017 invoice is related to on-going The February 6, 2017 invoice is for work primarily related to the tort Like the earlier invoices Mr. Clark, at times, billed full days to Ms. In relevant part, among other charges, on the February 6, 2017 April 1, 2016 = 10.1 hours April 2, 2016 = 9.1 hours April 3, 2016 = 10.2 hours April 4, 2016 = 8.8 hours April 8, 2016 = 9.25 hours May 9, 2016 = 7.1 hours May 10, 2016 = 8.7 hours July 1, 2016 = 9.7 hours July 2, 2016 = 8.7 hours July 4, 2016 = 10 hours July 7, 2016 = 10.5 hours Mr. Clark notes at the end of the invoice, “As a courtesy, a more work related to The April 1-3, 2016 entries reference “Review Medical Records from all Medical Providers.” In his billing notations for July 2-4, 2016, Mr. Clark notes that the “File is approx. 17,000-

20,000 pages.” 8 7 this has not been included.” (Emphasis in original). significant 6

11. 8 10. 9. 8. 7. 6. 5. 4. 3. 7 2. 1.

invoice, Mr. Clark billed: 6

Wright’s matter.

78.

was accounted for in earlier invoices.

matter, although some of the research for this potential cause of action

77.

2016.

Wright with her affairs, although the conservatorship closed on May 26,

work regarding the conservatorship, the tort matter and assisting Ms.

76. p. 18 August 4, 2016 = 8.9 hours August 4, 2016 = 8.9 hours A review of the invoices also reflects that Mr. Clark’s lack of a staff also A review of bank records subpoenaed from TD Bank reflects that Ms. Of the $73,146.00 that Mr. Clark deposited directly into his operating The remaining balance of $19,068.56 ($73,146.00-$54,077.44) consisted

there is evidence Ms. Wright paid the November 23, 2015 and December

of three separate payments by Ms. Wright for the invoices. Specifically,

82.

for this amount (the February 6, 2017 invoice).

operating account ending with 5776 after sending Ms. Wright an invoice

agreed to by Ms. Wright. Mr. Clark deposited this check directly into his

accounts, $54,077.44 was the payoff on the mortgage for legal fees

81.

accounts ending in 1308 and 5776.

$73,146.00 in checks that Mr. Clark deposited directly into his operating

directly into CTAs ending in 1316 and 5768, then paid to himself, and

checks from Ms. Wright totaling $34,250.00 which Mr. Clark deposited

conservatorship/guardianship and tort matters. This amount consists of

Wright paid to Mr. Clark a total of $107,396.00 for legal fees on the

80.

that she did not want anyone other than him to review her records.

organizing exhibits and medical records. Ms. Wright also told Mr. Clark

Mr. Clark billed “attorney time” for administrative tasks such as

played a role in the amount of time he billed to the matter. For example,

79.

13. 12. p. 19 Mr. Clark failed to keep a separate client ledger for Ms. Wright’s matter The ADO’s review of Mr. Clark’s client trust accounts and subpoenaed Likewise, Mr. Clark made some cash deposits into his client trust The ADO’s review of Mr. Clark’s client trust account and bank records Mr. Clark filed four client trust certificates for the time period of June 1,

had performed monthly reconciliations. This was not accurate given Mr.

that he was not out of trust in the designated time period and that he

2014 through May 31, 2018. On all four certificates, Mr. Clark certified

87.

monitoring by the ADO.

as to the proper handling of his client trust account and a period of

reveals and Mr. Clark agrees that he could benefit from further education

86.

accounts ending in 5768 and 1870 without a client designation.

85.

without a client designation on the check.

made transfers from his client trust account to his operating account

records for his bank account revealed that in some instances, Mr. Clark

84.

Billing and Legal Fees; Client Trust Accounting Issues; and Client

deposit for fees that had not yet been earned into his operating account.

instance, Mr. Clark’s failure to keep proper records which resulted in a

second time for items she had already paid for. Additionally, in one

invoices revealed that in some instances Mr. Clark billed Ms. Wright a

and as such the ADO’s review of his bank records compared to his

83.

records are unclear with regard to this third invoice.

31, 2015 invoices, as well as potentially, a third invoice. Mr. Clark’s p. 20 The parties agree that Mr. Clark’s conduct in this case involves The facts set forth above are incorporated by reference. Rule 1.1 states as follows: A lawyer shall provide competent representation to a client. Legal competence requires at a minimum:

effective manner including, where appropriate, associating (4) undertake actions on the client's behalf in a timely and the legal problems of the client; and (3) develop a strategy, in consultation with the client, for solving law and identify alternative legal responses; (2) formulate the material issues raised, determine applicable client, and from other relevant sources; (1) gather sufficient facts regarding the client's problem from the minimum: (c) In the performance of client service, a lawyer shall at a to the client's interest. the matter undertaken is completed with no avoidable harm (5) attention to details and schedules necessary to assure that (4) proper preparation; and bringing those areas to the client's attention; (3) identification of areas beyond the lawyer's competence and (2) performance of the techniques of practice with skill; lawyer practices; (1) specific knowledge about the fields of law in which the (b) (a)

90.

89.

follows:

violations of the New Hampshire Rules of Professional Conduct, as

88.

noted above.

Clark’s failure to keep accurate client ledgers and the other errors as p. 21 Mr. Clark violated Rule 1.1 when he failed to provide competent Mr. Clark violated Rule 1.1 when he failed to provide competent Specifically, Mr. Clark violated Rule 1.1 when he failed to inquire of Ms. Mr. Clark also violated Rule 1.1 when he failed to pay sufficient attention Mr. Clark also failed to recognize he should have associated with another This resulted in complications for the Estate in the Probate matter and Additionally, Mr. Clark’s lack of experience and overall competence with

on Ms. Wright’s behalf led Mr. Clark to bill Ms. Wright for an

regard to defending a guardianship matter and in bringing the tort action

97.

with the sale of the property.

96.

competent representation for Ms. Wright related to the Trust.

lawyer who possesses the skill and knowledge required to assure

95.

was the Trustee.

that indicated the property was held by the Trust and that Ms. Wright

to details when he had Ms. Wright execute the post-revocation mortgages

94.

specifically the real estate, to herself individually or otherwise.

advise Ms. Wright regarding the need to transfer the Trust assets,

Wright regarding any assets that may have been held by the Trust and

93.

representation to Ms. Wright regarding the revocation of the Trust.

92.

representation with regard to the Estate matter.

91.

required to assure competent representation. with another lawyer who possesses the skill and knowledge p. 22 The parties agree that the foregoing conduct constitutes clear and The facts set forth above are incorporated by reference. Rule 1.5 states as follows:

after commencing the representation. preferably in writing, before or within a reasonable time responsible shall be communicated to the client, the fee and expenses for which the client will be the scope of the representation and the basis or rate of (b) When the lawyer has not regularly represented the client, (8) whether the fee is fixed or contingent. lawyers performing the services; and (7) the experience, reputation, and ability of the lawyer or with the client; (6) the nature and length of the professional relationship circumstances; (5) the time limitations imposed by the client or by the (4) the amount involved and the results obtained; legal services; (3) the fee customarily charged in the locality for similar other employment by the lawyer; acceptance of the particular employment will preclude (2) the likelihood, if apparent to the client, that the perform the legal service properly; of the questions involved, and the skill requisite to (1) the time and labor required, the novelty and difficulty include the following: determining the reasonableness of a fee or expenses amount for expenses. The factors to be considered in collect an illegal or unreasonable fee or an unreasonable (a) A lawyer shall not enter into an agreement for, charge, or

100.

99.

convincing evidence of a violation of Rule 1.1.

98.

to invoice her an unreasonable amount of legal fees.

unreasonable amount of hours in alleged research for the tort action and p. 23 21

105.

104.

Rule 1.8: Conflict of Interest; Current Clients; Specific Rules

convincing evidence of a violation of Rule 1.5.

103.

1.5.

guardianship and tort matters on Ms. Wright’s behalf in violation of Rule

102.

fees.

101.

(A) (i) deposit, receipt of which is acknowledged by the (d) Funds may be disbursed from lawyer trust accounts upon incurred. withdrawn by the lawyer only as fees are earned or expenses and expenses that have been paid in advance, to be (c) A lawyer shall deposit into a client trust account legal fees purpose. on that account, but only in an amount appropriate for that account for the sole purpose of paying bank service charges (b) A lawyer may deposit the lawyer's own funds in a client trust and appropriately safeguarded. client and third party property shall be identified as such distribution of such other property or any portion thereof. All shall be preserved for a period of six years after final of clients or third persons shall be kept by the lawyer and aspect of those Rules. Sufficient records of all other property Supreme Court Rules and shall comply with every other third party funds as may be required by the New Hampshire minimum financial records with respect to the client and Supreme Court Rules. The lawyer shall maintain the accordance with the provisions of the New Hampshire representation separate from the lawyer's own property, in is in a lawyer's possession in connection with a (a)

109.

108.

Rule 1.15: Safekeeping Property and Supreme Court Rule 50

convincing evidence of a violation of Rule 1.8.

107.

transaction is in violation of 1.8(a).

fees or to obtain informed consent from her regarding the mortgage

independent legal counsel regarding her signing of a mortgage to him for

seeking and giving a reasonable opportunity to seek the advice of

106. p. 26 Mr. Clark failed to properly safeguard client property and violated Rule Maintain clear billing records and invoices for Ms. Wright’s Perform monthly reconciliations of his client trust accounts to

(b) and (d); and,

reconciliation date; and (e) a detailed listing of differences between

(d) a listing of all clients’ funds in the account as of the

firm records; (c) a detailed listing of differences between (a) and (b);

records; (b) the balance of the account according to Mr. Clark’s law

disclose: (a) the balance of the account according to the bank’s

matters;

1.15 and Supreme Court Rule 50, by failing to:

110.

property as to which the interests are not in dispute. The lawyer shall promptly distribute all portions of the be kept separate by the lawyer until the dispute is resolved. whom may be the lawyer) claim interests, the property shall possession of property in which two or more persons (one of (f) When in the course of representation a lawyer is in such property. person, shall promptly render a full accounting regarding entitled to receive and upon request by the client or third any funds or other property that the client or third person is lawyer shall promptly deliver to the client or third person otherwise permitted by law or by agreement with the client, a the client or third person. Except as stated in this rule or third person has an interest, a lawyer shall promptly notify (e) Upon receiving funds or other property in which a client or receiving financial institution. and (B) availability of such funds to the lawyer from the other form of deposit by such receiving financial institution, to the sum of such disbursements, or (ii) clearance of any certified check, or electronic transfer of funds at least equal receiving financial institution, of cash, bank cashier's check, p. 27 Maintain adequate ledgers or comparable records showing, for Mr. Clark also violated Rule 1.15 by: Making all transfers from his trust accounts to his operating Making cash deposits into his operating accounts without client The parties agree that the foregoing constitutes violations of Rule 1.15 The facts as set forth above are incorporated by reference. Rule 3.3 states as follows:

opposing counsel; or adverse to the position of the client and not disclosed by controlling jurisdiction known to the lawyer to be directly (2) fail to disclose to the tribunal legal authority in the previously made to the tribunal by the lawyer; to correct a false statement of material fact or law (1) make a false statement of fact or law to a tribunal or fail (a) A lawyer shall not knowingly:

114.

113.

Rule 3.3: Candor Toward the Tribunal

and Supreme Court Rule 50.

112.

designations from client trust accounts 5768 and 1870.

account without client designations on the check.

111.

funds were disbursed.

withdrawals, and the name of all persons or entities to whom such

such funds, the description and amounts of charges or

of all persons for whom the funds are or were held, the amount of

deposited in a client trust account for or on their behalf, the names

each separate trust client or beneficiary, the source of all funds

C. p. 28 Mr. Clark had a duty under Rule 3.3(a) not to knowingly make false Mr. Clark breached that duty when he signed four Certificates for the The parties agree that the foregoing conduct constitutes clear and Having found the foregoing violations, there is clear and convincing The Attorney Discipline Office and Mr. Clark jointly agree that a Both case law and the American Bar Association’s (2005) (“

Imposing Lawyer Sanctions Standards”) support this sanction.

120. Standards for

purposes of attorney discipline.

appropriate sanction in this matter. This sanction would serve the

suspension, stayed for one year, with mandatory conditions is the

119.

Prof. Conduct 8.4(a).

evidence that Mr. Clark’s conduct, as described herein, violated N.H. R.

118.

convincing evidence of a violation of Rule 3.3.

117.

with Supreme Court Rule 50.

failed to disclose that his records were not maintained in compliance

reporting periods beginning June 1, 2014 and ending May 31, 2018 and

116.

statements of fact to a tribunal.

115.

that the lawyer reasonably believes is false. than the testimony of a defendant in a criminal matter, tribunal. A lawyer may refuse to offer evidence, other measures, including, if necessary, disclosure to the if its falsity, the lawyer shall take reasonable remedial lawyer, has offered material evidence and comes to know lawyer, the lawyer’s client, or a witness called by the (3) offer evidence that the lawyer knows to be false. If a p. 29 The purpose of the Court’s disciplinary power is “protecting the public, Although the Court has not adopted the Standards Conner’s Case Standards set forth a (quoting Douglas’ Case Standards § 3.0. The first three parts of the analysis create the framework for See See id. (stating that “[a]fter determining the

mitigating factors on the ultimate sanction”).

sanction, [the Court] consider[s] the effect of any aggravating or

affect the baseline sanction.

existence of any aggravating or mitigating factors, and whether they

the Court then looks to the fourth and final part of the analysis: the

the appropriate sanction”). Once the baseline sanction is determined,

the first step is to categorize the respondent’s misconduct and identify

Conner’s Case, 158 N.H. at 303 (stating that “[i]n applying these factors,

characterizing the misconduct and determining a baseline sanction.

123.

613, 621 (2007));

aggravating or mitigating factors.” Id., 156 N.H.

injury caused by the lawyer’s misconduct; and (d) the existence of

duty violated; (b) the lawyer’s mental state; (c) the potential or actual

four part analysis for courts to consider in imposing sanctions: “(a) the

guidance., 158 N.H. at 303. The

122., it looks to them for

513 (2005).

account the severity of the misconduct.” Coffey’s Case, 152 N.H. 503,

Case, 158 N.H. 299, 303 (2009). “The sanction . . . must take into

legal profession, and preventing similar conduct in the future.” Conner’s

maintaining public confidence in the bar, preserving the integrity of the

121. p. 30 In the case of multiple charges of misconduct, the Standards recommend Richmond’s Case Under the first prong of the analysis, Mr. Clark violated duties owed to See §§ 4.1, 4.3, 4.5, 4.6, 6.1 and 7.2. With respect to Mr. Clark’s mental state under the second prong of the

behalf in the guardianship matter.

guardianship and tort matters. He did ultimately prevail on Ms. Wright’s

transaction. Mr. Clark knew how much he was billing Ms. Wright in the

revocation and in handling the subsequent probate and real estate

with Rule 50. Mr. Clark was negligent in properly addressing the trust

he was not properly maintaining his client trust accounts in accordance

handling the guardianship matter. Mr. Clark knew or should have known

in certain areas of practice such as the real estate transaction and in

both knowing and negligent. Mr. Clark knew that he lacked experience

sanction analysis, the parties agree that Mr. Clark’s mental state was

126.

Standards

violated his duties owed to the legal profession and legal system.

avoid conflicts of interest and the duty of competence. Mr. Clark also

his clients, including the duty of loyalty to preserve property of clients; to

125.

sanction for the most serious misconduct.” Id. (citing,

violations; it might well be and generally should be greater than the

sanction for the most serious instance of misconduct among a number of

that the sanction imposed “should at least be consistent with the

124. p. 31 The third prong of the sanction analysis requires an assessment of the With respect to his competence violations, Mr. Clark caused actual and Mr. Clark caused potential injury to Ms. Wright when she signed the Mr. Clark also risked potential injury to his clients by failing to keep Mr. Clark’s Rule 1.15 violation implicates Section 4.1 of the Disbarment is generally appropriate when a lawyer

potential injury to a client. knowingly converts client property and causes injury or 4.11 property: appropriate in cases involving the failure to preserve client of the factors set out in 3.0, the following sanctions are generally Absent aggravating or mitigating circumstances, upon application

That Section provides:

131. Standards.

requirements of Rule 50.

public in doubt as to the viability of trust accounting and certification

also caused harm to the legal profession by leaving the Court and the

accurate, contemporaneous records as required by the Rules. Mr. Clark

130.

consult with independent counsel.

mortgage to his firm for legal fees without offering her the opportunity to

129.

led Mr. Clark to overbill Ms. Wright for her matters.

Clark’s lack of experience in handling the guardianship and tort matters

real property. It further actual caused injury to Ms. Wright in that Mr.

probating the Estate and a delay with respect to the sale of the Estate

potential injury because his lack of competence led to problems with

128.

actual or potential injury caused by Mr. Clark’s misconduct.

127. p. 32 Suspension is generally appropriate when a lawyer Reprimand [public censure] is generally appropriate when Admonition [reprimand] is generally appropriate when a Mr. Clark’s conduct in this matter, when considered under Mr. Clark’s Rule 1.8 violation implicates Section 4.3 of the Standard 4.12 is unique among the Standards because it allows for a baseline suspension The term “admonition,” as used in the

censure in New Hampshire. Hampshire. The term “reprimand,” as used in the ABA Standards, is analogous to a public ABA Standards, is analogous to a reprimand in New 10 proper accounting procedures should be suspended”). Standards, § 4.12; Commentary (“lawyers who are grossly negligent in failing to establish under a “should have known” standard, which is essentially a negligence standard. 9

matter in which the interests of a present or former (c) represents a client in a matter substantially related to a serious injury to a client; or lawyer or another, and causes serious or potentially have adverse interests with the intent to benefit the (b) simultaneously represents clients that the lawyer knows serious or potentially serious injury to the client; or intent to benefit the lawyer or another, and causes lawyer’s interests are adverse to the client’s with the (a) engages in representation of a client knowing that the the informed consent of client(s):

4.31 Disbarment is generally appropriate when a lawyer, without

generally appropriate in cases involving conflicts of interest: of the factors set out in Standard 3.0, the following sanctions are Absent aggravating or mitigating circumstances, upon application

That Section provides:

133. Standards.

4.12, would call for a baseline sanction of suspension.

132. Standard

(Emphasis added). little or no actual or potential injury to a client. lawyer is negligent in dealing with client property and causes 4.14 causes injury or potential injury to a client. a lawyer is negligent in dealing with client property and 4.13 10 client. client property and causes injury or potential injury to a knows or should know that he is dealing improperly with 4.12 9 p. 32 p. 33 Suspension is generally appropriate when a lawyer knows Mr. Clark’s conduct in this matter, when considered under Mr. Clark’s Rule 1.1. violation implicates Section 4.5 of the Disbarment is generally appropriate when a lawyer’s course Suspension is generally appropriate when a lawyer

engages in an area of practice in which the lawyer knows 4.52

potential injury to a client. procedures, and the lawyer’s conduct causes injury or understand the most fundamental legal doctrines or of conduct demonstrates that the lawyer does not 4.51

competent representation to a client: generally appropriate in cases involving failure to provide of the factors set out in Standard 3.0, the following sanctions are Absent aggravating or mitigating circumstances, upon application

That Section provides:

135. Standards.

4.32, would call for a baseline sanction of a suspension.

134. Standard

(emphasis added). or potential injury to a client. adversely affect another client, and causes little or no actual the lawyer’s own interests, or whether the representation will the representation of a client may be materially affected by in an isolated instance of negligence in determining whether 4.34 [Reprimand] is generally appropriate when a lawyer engages client. another client, and causes injury or potential injury to a interests, or whether the representation will adversely affect client may be materially affected by the lawyer’s own negligent in determining whether the representation of a 4.33 [Public censure] is generally appropriate when a lawyer is injury or potential injury to a client. client the possible effect of that conflict, and causes of a conflict of interest and does not fully disclose to a 4.32

causes serious or potentially serious injury to a client. with the intent to benefit the lawyer or another, and information relating to the representation of a client client are materially adverse, and knowingly uses p. 34 [Public censure] is generally appropriate when a lawyer: demonstrates failure to understand relevant legal is negligent in determining whether he or she is [Reprimand] is generally appropriate when a lawyer engages Mr. Clark’s conduct in this matter, when considered under Ms. Clark’s Rule 1.5 violation implicates Section 7.0 of the

injury to a client, the public, or the legal system. duty as a professional and causes injury or potential knowingly engages in conduct that is a violation of a 7.2 Suspension is generally appropriate when a lawyer serious injury to a client, the public, or the legal system. the lawyer or another, and causes serious or potentially owed as a professional with the intent to obtain a benefit for knowingly engages in conduct that is a violation of a duty 7.1 Disbarment is generally appropriate when a lawyer from representation, or failure to report professional misconduct. improper fees, unauthorized practice of law, improper withdrawal professional employment from a prospective client, unreasonable or communication of fields of practice, improper solicitation of communication about the lawyer or the lawyer’s services, improper generally appropriate in cases involving false or misleading of the factors set out in Standard 3.0, the following sanctions are Absent aggravating or mitigating circumstances, upon application

That Section provides:

137. Standards.

4.52, would call for a baseline sanction of a suspension.

136. Standard

(emphasis added).

little or no actual or potential injury to a client. he or she is competent to handle a legal matter, and causes in an isolated instance of negligence in determining whether 4.54

potential injury to a client. competent to handle a legal matter and causes injury or (b) injury to a client; or doctrines or procedures and causes injury or potential (a)

4.53

potential injury to a client. he or she is not competent, and causes injury or p. 35 Mr. Clark’s conduct in this matter, when considered under 7.2, Mr. Clark’s violation of Rule 3.3 implicates Section 6.1 of the

causes little or no actual or potential injury to a party, or disclose material information upon learning of its falsity, and submitted statements or documents are false or in failing to in an isolated instance of neglect in determining whether 6.14 [Reprimand] is generally appropriate when a lawyer engages proceeding. an adverse or potentially adverse effect on the legal potential injury to a party to the legal proceeding, or causes material information is being withheld, and causes injury or documents are false or in taking remedial action when negligent either in determining whether statements or 6.13 [Public censure] is generally appropriate when a lawyer is effect on the legal proceeding. proceeding, or causes an adverse or potentially adverse injury or potential injury to a party to the legal being withheld, and takes no remedial action, and causes to the court or that material information is improperly that false statements or documents are being submitted 6.12 Suspension is generally appropriate when a lawyer knows adverse effect on the legal proceeding. to a party, or causes a significant or potentially significant information, and causes serious or potentially serious injury a false document, or improperly withholds material intent to deceive the court, makes a false statement, submits 6.11 Disbarment is generally appropriate when a lawyer, with the

which provides, in pertinent part:

139. Standards,

would call for a baseline sanction of a suspension.

138. Standard

(Emphasis added.) the public, or the legal system. and causes little or no actual or potential injury to a client, the lawyer’s conduct violates a duty owed as a professional, in an isolated instance of negligence in determining whether 7.4 [Reprimand] is generally appropriate when a lawyer engages to a client, the public or the legal system. owed as a professional and causes injury or potential injury negligently engages in conduct that is a violation of a duty 7.3 [Public censure] is generally appropriate when a lawyer p. 35 p. 36 Mr. Clark’s conduct in this matter, when considered under The parties agree that the combined baseline sanction for Mr. Clark’s See Standard §§ 4.12, 4.32, 4.52, 6.12 and The baseline sanction must be considered in light of any aggravating and E.g. Conner’s Case In this case, there are no aggravating factors present. See Standards § There are two mitigating factors, including: 1) an absence of prior See Standards § 9.32. Moreover, although the ADO reviewed Mr. Clark client trust accounting The parties agree that given the baseline sanction, and consideration of

aggravating and mitigating circumstances, a stayed suspension with

146.

Clark’s handling of client trust accounting practices.

Likewise, no other client has complained to the ADO regarding Mr.

Wright (before her death) nor her Estate filed a complaint with the ADO.

concerns with respect to Mr. Clark’s billing practices and neither Ms.

practices for a lengthy time period, the original complaint did not raise

145.

and cooperative attitude toward proceedings.

disciplinary record; and 2) full and free disclosure to disciplinary board

144.

9.22.

143.

mitigating factors.,, 158 N.H. at 303.

142.

7.2.

conduct is a suspension.

141.

6.12, would call for a baseline sanction of suspension.

140. Standard

(Emphasis added) legal proceeding. causes little or no adverse or potentially adverse effect on the p. 37 Mr. Clark agrees to comply with the following conditions for one year, Mr. Clark shall provide written fee agreements to clients for all Mr. Clark shall contemporaneously track time spent on client Mr. Clark shall perform monthly reconciliations of his client trust

account in full compliance with Supreme Court Rule 50.

balance of such retainer.

such bill shall set forth deposits to, disbursements from, and the

accounting of time spent on the matter. Where he holds a retainer,

matters. He shall bill clients monthly and send with such bill an

Court approves this Stipulation.

a proposed written fee agreement within 30 days of the date the

for replenishing such retainer. Mr. Clark will provide the ADO with

clients, and, in cases in which he accepts a retainer, the method

scope of representation, hourly rate, his procedure for billing

matters that he undertakes. Those agreements shall set forth:

separate agreement and are summarized as follows:

(“Court”) accepts this Stipulation. The conditions are the subject of a

which shall begin on the date the New Hampshire Supreme Court

147.

For Alleged Violation of Conditions

D. Conditions of Imposed Discipline and Procedures

remedial measures, is an appropriate sanction.

mandatory conditions, designed to ensure implementation of effective p. 38 Mr. Clark will report to the ADO on a quarterly basis describing his Mr. Clark agrees to attend a three credit CLE regarding client trust Mr. Clark shall pay the expenses incurred by the Professional For a period of one year, beginning on the date the Court approves If it is alleged that Mr. Clark violated any of the conditions enumerated at Upon motion by Disciplinary Counsel, the Court may determine

the Court determines that no condition of this Stipulation has been

the Court may lift the stay and impose a one-year suspension. If

been violated. If it determines that a condition has been violated,

whether any of the conditions enumerated at Paragraph 148 have

Paragraph 148 above, the following shall apply:

148.

professional misconduct.

the Agreement, Mr. Clark shall not engage in any further

prosecution of this matter.

Conduct Committee in connection with this investigation and

Court approves this Stipulation.

attendance to Disciplinary Counsel within 90 days of the date the

accounting in New Hampshire and will submit a certificate for his

ledgers along with the corresponding bank statements.

monthly reconciliations, account ledgers and individual client

agreements; three client invoices and complete copies of his

procedures and will attach to the report copies of three written fee

progress in further improving his client trust accounting

D. p. 39 Respondent may request that the Court through the Professional If a Hearing Panel determines that a condition has been violated, If a new grievance or referral is filed against Mr. Clark during the one- So long as a grievance or referral is filed within the one-year period

the stay can be lifted and the suspension imposed at such time as

misconduct occurred, at least in part, during the one-year period,

of the stay (“the subsequent proceeding”), and the alleged

148(g), the following shall apply:

year period of the stay, thus implicating the condition at Paragraph

149.

Hearing Panel and make a recommendation to the Court.

pursuant to its terms. The PCC shall review the decision of the

has been violated, the Stipulation shall continue in force and effect

the Hearing Panel determines that no condition of the Stipulation

the Panel may recommend imposition of a one-year suspension. If

violated.

evidence that a condition listed in Paragraph 148 has been

Disciplinary Counsel to demonstrate by a preponderance of

been violated. During such hearing, it shall be the burden of

of whether a condition under Paragraph 148 of this Stipulation has

so that a Hearing Panel may be appointed to decide the sole issue

Conduct Committee remand the matter to the Hearings Committee

to its terms.

violated, the Stipulation shall continue in force and effect pursuant p. 40 Pending the final resolution of the subsequent proceeding, the If the conditions of Paragraph 148 have been met, Mr. Clark will The Respondent shall bear all costs associated with compliance Nothing herein shall be construed to limit prosecution of any new If a grievance or referral is filed within the one-year period of the time being of the essence, along with supporting Subject to the Court’s approval of Mr. Clark’s Stipulation, Mr. Clark See Supreme Court Rule 37(19).

separate agreement signed by Mr. Clark.

His agreement to pay the costs incurred by the ADO is the subject of a

enforcement of this disciplinary matter.

agrees to pay the costs incurred by the ADO in the investigation and

150.

information or documentation.

referral,

within thirty (30) days of receipt of notice of the grievance or

stay, Mr. Clark shall provide written notice to Disciplinary Counsel

during the one year period of stay.

grievance or referral involving conduct of Respondent occurring

and enforcement of the terms and conditions of this Stipulation.

subsequent proceeding is pending.

not have to continue to comply with those provisions while the

matter underlying this Stipulation shall not be closed.

even if such finding occurs beyond the one-year period of the stay.

there is a finding of misconduct in the subsequent proceeding, p. 41 39

154. Mr. Clark knowingly and inteiligently waives his right to a hearing.

Stipulation.

this Stipuiation and, that he is fully aware of the consequences of the

153. Mr. Clark understands that he has a right to obtain counsel regarding

inducements not set forth in the Stipulation

result of any threats, coercion, or duress, or of any promises or

and voluntarily submitted; that he is not entering this Stipulation as a

proposed disposition contained in this Stipulation are freely, knowingly,

L52. Mr. Clark acknowledges that the admissions of misconduct and the

accept the Stipulation pursuant to Rule 37A(III)(aa)(1).

disposition, and tl:rat the Court may accept, reject, or conditionally

151. Mr. Clark understands that this Stipulation represents a recommended