Wallace J. Anctil (2007)

File Wallace J. Anctil, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

November 20, 2007

made part thereof. above-captioned matter on the basis of the Stipulation filed by the parties attached hereto and' the Motion to Permit Waiver of Hearings Committee Process and to issue a Reprimand in the On November 20,2007, the Professional Conduct Committee, upon consideration, voted grant

Gerald A. Daley* Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney member Thomas P. Connair James J. Tenn, Jr. David N. Cole David N. Page* Toni M. Gray, * Vice Chair 603-224-5828 .Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Gretchen Rule Hamel Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Richard H. Darling*

Jordan wrote Mr. Anctil a check on that date.

3. At one of their early meetings, Mr. Anctil requested a $500 retainer. Ms.

Anctil to represent her in her divorce.

2. In or about May 2004, Jane Jordan (the Complainant) retained Mr.

School Street, Berlin, New Hampshire 03570.

proceeding, Mr. Anctil operated his law office as Dupont & Anctil, 258

Anctil was admitted to practice in p. 2 1969. At all times material to this

p. 2 1. Mr. Anctil is an attorney licensed to practice law in New Hampshire. Mr.

I. Stipulation of Facts

Anctil, hereby submit this Stipulation in the above-referenced case.

Disciplinary Counsel, Landya B. McCafferty, and Respondent, Wallace J.

had retained other counsel.

requested a refund of her $500 retainer and informed Mr. Anctil that she

10. In a letter to Mr. Anctil dated October 19, p. 3 2004, Ms. Jordan again

requesting that Mr. Anctil refund to her the $500 retainer.

9. In or about September p. 3 2004, Ms. Jordan left a final telephone message

always promptly returned.

Mr. Anctil's office. Ms. Jordan left several message but her calls were not

8. After receiving no response to her letter, Ms. Jordan began telephoning

which she expressed her interest in proceeding with the divorce.

7. On or about August p. 3 26, 2004, Ms. Jordan wrote a letter to Mr. Anctil in

purpose; however, he was ultimately uncooperative in that regard.

attempts to persuade her husband to return to this state for that

service completed within New Hampshire and Ms. Jordan made some

some expenses for service of process could be minimized by having the

6. Some additional delay was occasioned by Mr. Anctil's suggestion that

husband time to grieve the loss of his mother.

decided to hold off on filing any divorce paperwork to allow Ms. Jordan's

5. Due to Ms. Jordan's mother-in-law's death, Ms. Jordan and Mr. Anctil

complainant, on or about November 15, p. 3 2005.

account, where it remained at all times until it was refunded in full to the

4. Mr. Anctil deposited the $500 retainer in June p. 3 2004 in his office IOLTA p. 4 3

17. Allegations set forth above are incorporated by reference.

Rules 1.15(b) and 1.16(d): Failure to Return Client Funds

II. Stipulation as to Rules Violated

to Ms. Jordon's professional conduct complaint.

16. In a letter to Mr. DeHart dated November 15, 2005, Mr. Anctil responded

of his IOLTA trust account.

15. On November 15, 2005, Mr. Anctil wrote a $500 check to Ms. Jordan out

complaint, and requested Mr. Anctil's response thereto.

informed Mr. Anctil of Ms. Jordan's complaint, enclosed a copy of her

14. In a letter to Mr. Anctil dated September 26,2005, James L. DeHart

retainer.

about Mr. Anctil's failures both to communicate and to return her

Ms. Jordan filed a letter of complaint to the Attorney Discipline Office

1 p. 4 3. Having heard nothing further from Mr. Anctil, on September 19,2005,

yet.

knew he owed her money but had not gotten around to sending it to her

that time, Mr. Anctil told Ms. Jordan something to the effect that he

passing at the municipal building in Milan where Ms. Jordon works. At

12. In or about December 2004, Ms. Jordan happened to see Mr. Anctil in

for receipt of the October 19, 2004, letter.

mail return receipt requested. On October 28, 2004, Mr. Anctil signed

11. Ms. Jordan sent the October 19, 200 p. 5 4, letter to Mr. Anctil via certified 4

of a violation of Rule 8. p. 5 4(a).

aforementioned Rules, there is necessarily clear and convincing evidence

2 p. 5 4. Because there exists clear and convincing evidence of violation of the

of both N.H. R. Prof. Conduct 1.1S(b) and 1.16(d).

Jordan's retainer constitutes clear and convincing evidence of a violation

23. Mr. Anctil's failure to promptly return the unearned portion of Ms.

funds she was entitled to receive.

22. In so doing, Mr. Anctil knowingly failed to promptly deliver to Ms. Jordan

funds.

provide any accounting or other explanation to her with respect to the

return the unearned portion of Ms. Jordan's retainer to her, nor did he

21. From September 200 p. 5 4 through November 15, 2005, Mr. Anctil did not

aware that he was holding an unearned portion of Ms. Jordan's retainer.

20. As of Ms. Jordan's October 200 p. 5 4 letter to Mr. Anctil, Mr. Anctil was also

substitute counsel and that she wanted her full retainer returned.

services, Mr. Anctil was on written notice that Ms. Jordan had hired

19. As of Ms. Jordan's October 200 p. 5 4 letter to Mr. Anctil terminating his

discussions and legal advice.)

any other legal actions on Ms. Jordan's behalf (excepting only

their May 200 p. 5 4 meeting, Mr. Anctil did not file a divorce petition or take

Anctil's agreement to represent Ms. Jordan in her divorce. Following

18. In May 200 p. 5 4, Ms. Jordan paid Mr. Anctil $ p. 6 500.00 in exchange for Mr. 5

categorize the respondent's misconduct and identify the appropriate

1 p. 6 52 N.H. 710, 714 (2005) ("In applying these factors, the first step is to

misconduct and determining a baseline sanction. See Wolterbeek's Case,

28. The first three steps create the framework for characterizing the

N.H. at p. 6 513.

aggravating or mitigating factors." Standards § 3.0; Coffey's Case, 1 p. 6 52

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. Coffey's Case, 1 p. 6 52 N.H. at 513. The Standards set forth a

27. Although the Court has not adopted the Standards, it looks to them for

take into account the severity of the misconduct." Id.

p. 6 503, 513 (2005) (internal quotation marks omitted). "The sanction must

and prevent similar conduct in the future." y, Coffey's Case, 1 p. 6 52 N.H.

public confidence in the bar, preserve the integrity of the legal profession,

of the Court's disciplinary power "is to protect the public, maintain

the conclusion that Mr. Anctil should receive a Reprimand. The purpose

Standards for Imposing Lawyer Sanctions (1992) ("Standards") support

26. Both case law in New Hampshire and the American Bar Association's

purposes of attorney discipline.

the appropriate sanction in this matter. A Reprimand would serve the

2 p. 6 5. Disciplinary Counsel and Mr. Anctil jointly recommend a Reprimand as

III. Stipulation as to Sanction p. 7 6

conversion. The most common involve lawyers who commingle client

engage in misconduct that does not amount to misappropriation or

4.12 (Commentary) ("Suspension should be reserved for lawyers who

constitutes "dealing improperly with client money." See Standards §

this section indicates that failing to promptly return funds to a client

or potential injury to a client." Standards § 4.12. The commentary to

know that he is dealing improperly with client property and causes injury

31. Section 4.12 recommends suspension where "a lawyer knows or should

clearly not applicable here.

injury or potential injury to a client." Standards § 4.11. This standard is

appropriate when a lawyer knowingly converts client property and causes

Property." Section 4.11 indicates that [d]isbarment is generally

client funds is Section 4.11, entitled "Failure to Preserve the Client's

30. The section of the Standards that deals with a lawyer's mishandling of

client to return promptly all funds belonging to her.

29. Under the first prong of the analysis, Mr. Anctil violated his duty to his

sanction.").

the effect of any aggravating or mitigating factors on the ultimate

sanction. See id. ("After determining the sanction, [the Court] considers

aggravating or mitigating factors and whether they affect the baseline

looks to the fourth and final step in the analysis: the existence of any

sanction"). Once the baseline sanction is determined, the Court then p. 8 7

a Reprimand. 2 Section 4.14 uses the term "Admonition." The most analogous sanction in New Hampshire is a Public Censure. 1 Section 4.13 uses the term "Reprimand." The most analogous sanction in New Hampshire is

claim he had to the funds and returned Ms. Jordan's retainer in full.

speaking with Ms. Jordan about the matter, Mr. Anctil compromised any

practice and was working without a secretary at the time. Upon

attribu tes his neglect to the fact that he was in the process of closing his

and refund the balance to her, but he neglected to do so. Mr. Anctil

intention was to discuss this issue with Ms. Jordan, finalize the fee issue

had earned a portion of it and was entitled to retain that portion. His

matter. Mr. Anctil retained Ms. Jordan's retainer because he believed he

34. Negligence properly characterizes the behavior of Mr. Anctil in this

injury to a client."

dealing with client property and causes little or no actual or potential

33. Section 4.14 recommends a Reprimand 2 "when a lawyer is negligent in

client."

in dealing with client property and causes injury or potential injury to a

32. Section 4.13 recommends a Public Censure l"when a lawyer is negligent

added).

funds with their own, or fail to remit client funds promptly."). (Emphasis p. 9 8

sanction.

any aggravating and/ or mitigating factors that affect the baseline

40. The final step in the analysis, however, is to determine whether there are

sanction in this case is a Reprimand.

facts under the first three prongs of the test, an appropriate baseline

39. In light of section 4.11 of the Standards, as well as the analysis of the

money.

the case does not involve defalcation of client funds or commingling of

thereby reducing the quantifiable injury. Further, and most importantly,

3 p. 9 8. In the end, however, Mr. Anctil returned Ms. Jordan's money in full,

not fastidious in his ethical obligations toward client funds.

but there is harm to the reputation of the bar whenever an attorney is

access to money that was rightfully hers. Not only was the client injured,

injured because Mr. Anctil deprived her for approximately one year of

actual injury caused by Mr. Anctil's misconduct. Here, Ms. Jordan was

37. The third prong of the analysis requires consideration of the potential or

not purposeful.

funds belonging to Ms. Jordan. However, Mr. Anctil's mental state was

Ms. Jordan's October 19, 2004 letter, Mr. Anctil knowingly retained

36. With respect to Mr. Anctil's mental state, the evidence is clear that, as of

both Mr. Anctil's state of mind and the injury caused by his misconduct.

35. To determine the baseline sanction, the Standards require analysis of p. 10 9

Conduct Committee in the investigation and prosecution of this matter.

47. Mr. Anctil agrees to pay the expenses incurred by the Professional

IV. Stipulation as to Costs

Reprimand.

discipline in New Hampshire, the appropriate sanction in this matter is a

recommended by the Standards, as well as the purposes of attorney

46. In sum, taking into consideration both the four part analysis

appropriate sanction in this case.

as well as Mr. Anctil's recent retirement from the Bar, a Reprimand is an

45. In light of the age of the prior discipline, the mitigating factors involved,

District Court Justice.

"inactive retired." However, Mr. Anctil continues to serve as a part-time

44. As of June 1,2007, Mr. Anctil's bar status changed from active to

occurred in 1 p. 10 988-89, approximately 18 years ago.

committed in this case, the underlying events in the prior matter

43. Although the prior Reprimand involves similar misconduct to that

6, 1 p. 10 990 (a copy is attached as Exhibit 1).

disciplinary history, see id. § p. 10 9.22(a): a Private Reprimand dated March

42. There is only one aggravating factor in this case. Mr. Anctil has a

expressed genuine remorse for his misconduct, id. § p. 10 9.32(1).

cooperated with the disciplinary process, id. § p. 10 9.32(e); and Mr. Anctil has

dishonest or selfish motive, see Standards § p. 10 9.32(b); Mr. Anctil has

41. There are several mitigating factors in this case: Mr. Anctil lacked a p. 11 10

Dated: ~ct 2L, 2007

Dated: U c . A" 2007 /7t')'(

nonetheless hereafter bound to the facts as stipulated.

Violated and/ or the Stipulation as to Sanction, the Respondent is

Conduct Committee does not agree with the Stipulation as to Rules

bound to the facts as stipulated. In the event that the Professional

48. Respondent understands that by signing this Stipulation, he is hereby

v. Effect of Stipulation file over to your client when requested. p. 12 and effective manner; and that you failed to promptly turn the failed to undertake action on behalf of your client in a timely that you failed to keep your client reasonably informed; that you to promptly and diligently represent your client's interests; promptly and timely respond to client inquiries; that you failed of the $200 retainer in April of 1989; that you failed to retain new counsel, who secured her file from you and the return happening with the casei that Mrs. Buda was finally forced to calls and failed to advise her in any fashion as to what was the status of the casei that you failed to return her telephone repeatedly called you and attempted to contact you to find out at that timei that for the next eight to ten months she matter on behalf of her mother and she paid you a $200 retainer finds that in May of 1988, Diane Buda retained you to handle a After giving due consideration to this record the Committee

record of the above entitled matter. the Professional Conduct Committee thoroughly reviewed the entire At its regular meeting held on Wednesday, February 21, 1990, Dear Mr. Anctil:

Re: Anctil, Wallace J. advs. Diane Buda - #893975

Berlin, New Hampshire 03570 258 School Street Dupon't & Anctil Wallace J. Anctil, Esquire

Rules and Procedures. confidentiality requirements noticed in § 4.1 of the Committee's decision, would remain private and would be subject to the all information admitted at the proceeding itself, and the Hampshire Supreme Court. The appeal, including the pleadings, notice of appeal in accordance with the Rules of the New You are entitled to appeal a Reprimand by filing a written

severity of discipline imposed for any further violation. findings in this matter may be considered in determining the misconduct and a copy will be placed in your permanent file. The This letter of Reprimand is issued because of this

Professional Conduct. 1.1(c)(4), 1.3(a) 1.4(a), 1.16(d) and 8.4(a) of the Rules of are guilty of professional misconduct and in violation of Rules The Committee finds that because of the above conduct you

Re: #893975 Wallace J. Anctil, Esquire Page Two