Leigh D. Bosse (2007)

lots"for at least $10,000.00" to one of three builders with whom he was Hillsboro, informing them that he could"almost guarantee a quick sale" of their attorney. In February 2003, he wrote to landowners on a small lake in material times, he was self-employed as both a real estate agent and an attorney admitted to the practice of law in New Hampshire since 1975. At all The parties stipulated to the following: The respondent has been an

practice of law in New Hampshire for two years. New Hampshire for six months. We order the respondent suspended from the (PCC) to suspend the respondent, Leigh D. Bosse, from the practice of law in appealed the decision of the Supreme Court Professional Conduct Committee DALIANIS, J. On November 13, 2006, the attorney discipline office (ADO)

the brief and orally), for the respondent. Gallagher, Callahan & Gartrell, P.C., of Concord (David A. Garfunkelon

attorney discipline office. Landya B. McCafferty, of Concord, on the brief and orally, for the

No. LD-2006-009 Original

page is: http://www.courts.state.nh.us/supreme. L a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

listing agreement and purchase and sale agreement without Grimard's respondent violated this rule when he signed Grimard's name to the exclusive conduct involving dishonesty, fraud, deceit or misrepresentation. The Rule 8.4(c) makes it professional misconduct for an attorney to engage in Rule 8.4(a) makes it professional misconduct to violate the Rules.

that the respondent violated Rules 8.4(a) and (c). For the purposes of this appeal, therefore, we accept the parties' stipulation the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. professions] misconduct to commit a criminal act that reflects adversely upon (c). The ADO did not pursue its charge under Rule 8.4(b), which makes it eventually stipulated that the respondent's conduct violated Rules 8.4(a) and Hampshire Rules of Professional Conduct (Rules) 8.4(a), (b) and (c). The parties The ADO originally charged the respondent with violating New

much and I have withdrawn my agreement & listing." what's going on. Grimard now says he listed with [another realtor] for twice as realtor. When the respondent discovered this, he wrote to Boike:"I don't know property with the respondent and had listed his property with a different Unbeknownst to the respondent, Grimard had decided not to list his

agreement was"in effect." documents to Boike and falsely informed him that the purchase and sale without his consent or authorization. The respondent then forwarded the executed documents to him shortly thereafter, he signed Grimard's name and sale agreement. Although the respondent expected Grimard to forward signed Grimard's name to the exclusive listing agreement and the purchase Rather than tell Boike that he had uploaded the Grimard listing too soon, he verify the listing. The respondent attempted, unsuccessfully, to reach Grimard. James Boike, the administrator of the NNEREN, asked him for documents to Two days after the respondent uploaded the listing to the NNEREN,

multiple listing service for New Hampshire. New England Real Estate Network (NNEREN), which is the computerized computer. The respondent then uploaded this information to the Northern constructed on Grimard's property and entered the listing into his office builder's request, the respondent prepared a listing for the house to be prepared a $10,000.00 offer to purchase Grimard's property. Also, at the The next day, at the request of one of the builders, the respondent

would also send a purchase and sale agreement. packet and, if he could contact one of the builders identified in the letter, he $10,000.00. The respondent told Grimard that he would send him a listing from Raymond Grimard who expressed interest in selling his lot for working. In response to this letter, the respondent received a telephone call p. 3 3

practice." Id. § 5.11. misrepresentation that seriously adversely reflects on the lawyer's fitness to any ... intentional conduct involving dishonesty, fraud, deceit, or generally proper, absent mitigating circumstances, when"a lawyer engages in integrity. Standards, supra § 5.1. The Standards provide that disbarment is Here, the respondent's misconduct involves failure to maintain personal

ultimate sanction. Id. _. We then consider the effect of any aggravating or mitigating factors on the and then identify the appropriate sanction. Coddington's Case, 154 N.H. at In applying these factors, we first categorize the respondent's misconduct Coddington's Case, 154 N.H. at_. existence of aggravating or mitigating factors. Standards, supra § p. 3 3.0; actual or potential injury caused by the lawyer's misconduct; and (d) the imposing sanctions: (a) the duty violated; (b) the lawyer's mental state; (c) the guidance. Id. The Standards list the following factors for consideration in for Imposing Lawver Sanctions (2005) (Standards), we look to them for Although we have not adopted the American Bar Association's Standards

circumstances appearing in the record. Id. taking into account the severity of the misconduct and any mitigating judge each attorney discipline case upon its own facts and circumstances, similar conduct in the future; the purpose is not to inflict punishment. Id. We confidence in the bar, preserve the integrity of the legal profession, and prevent that the purpose of attorney discipline is to protect the public, maintain public N.H. _, _ (decided Mar. 8, 2007). In determining a sanction, we are mindful conduct has occurred and, if so, the proper sanction. Coddington's Case, 154 whether, upon the facts found, a violation of the rules governing attorney In attorney discipline matters, we retain ultimate authority to determine

followed. ADO moved for reconsideration, which the PCC denied, and this appeal suspended from the practice of law in New Hampshire for six months. The respondent requested public censure. The PCC ordered the respondent For the above misconduct, the ADO recommended disbarment and the

knew that he lacked Grimard's consent to sign them. respondent signed the documents and forwarded them to the NNEREN, he agreement between Grimard and the builder was"in effect." When the violated this rule when he falsely informed Boike that the purchase and sale list his property with the respondent and to sell it to the builder. He also Boike would believe that the respondent had secured Grimard's agreement to knowledge or consent, and forwarded these documents to the NNEREN so that p. 4 4

and admitting his misconduct; and (3) the loss of his real estate license. See his cooperation during the proceedings, which included expressing remorse mitigating factors: (1) the respondent's lack of a prior disciplinary record; (2) respect to the sanction to be imposed. The parties agreed to the following We next consider the effect of mitigating or aggravating factors with

documents." Nor is there any evidence of injury to the NNEREN. realtor, which he did the same day that [the respondent] signed the ... Grimard was not precluded from choosing to list his property with another compelled ... Grimard to sell his properDJ based upon the documents ... arld respondent aptly points out in his brief:"[The respondent] could not have There is no evidence, however, of any injury to Grimard. As the

p. 4 467 (quotation omitted). more negatively on the legal profession than a lie." Kalil's Case, 146 N.H. at whenever an attorney engages in deceit."[N]o single transgression reflects the PCC that the injury to the integrity of the legal profession is substantial injury to the integrity of the New Hampshire Bar is substantial." We agree with quantifiable," but that"[w]henever an attorney engages in ... deceit, ... the The PCC determined that the injury was"subjective in nature and not legal system, or the profession which results from a lawyer's misconduct." rd. conduct. The Standards define"[i]njury" as"harm to a client, the public, the We next consider the actual or potential injury from the respondent's

determination that the respondent acted intentionally. property and sell it to the builder. We therefore uphold the PCC's inducing Boike to believe that he had secured Grimard's agreement to list the with a conscious objective or purpose to accomplish a particular result­ supra at 9. The parties' stipUlated facts establish that the respondent acted "conscious objective or purpose to accomplish a particular result." Standards, acted intentionally and deliberately. The Standards define"[i]ntent" as the With respect to the respondent's mental state, the PCC found that he

(quotation omitted). attorney at all times to be truthful." Kalil's Case, 1 p. 4 46 N.H. 466,467 (2001) Case, 14 p. 5 5 N.H. 62, 71 (2000). Accordingly,"it is the responsibility of every and requires an unswerving allegiance to honesty and integrity." Bruzga's 141 N.H. 1,7 (1996) (quotation omitted)."Lawyering involves a public trust concomitant responsibilities of truth, candor and honesty." Basbanes' Case, to practice."[T]he privilege of practicing law does not come without the capacity as a real estate agent, his conduct adversely reflects upon his fitness fitness to practice." rd. Even though he engaged in this conduct in his deceit [and/ or] misrepresentation that seriously adversely reflects on [his] The respondent's conduct involved"intentional... dishonesty, fraud, 5

misconduct in the past). made false statements to client, and had been privately reprimanded for relinquishing control of funds expressly given to him for safekeeping, knowingly (attorney disbarred where he knowingly violated terms of escrow agreement by government of being source of leak); Nardi's Case, 142 N.H. 602, 607-08 (1998) source of leak, and filed and signed numerous pleadings falsely accusing instructions, he leaked letter to news reporters, repeatedly lied to client about 3 p. 5 51,353-56, 360-61 (1993) (attorney disbarred where, against client's this court that he had been arrested for grand theft); Jones' Case, 137 N.H. $70 000 O, . n V', bA lJ'e.L'-' J.. ...... .... rl a> h;S L.LJ. d;s~;pl;~a~y hAa~l'~g ~~d "~;IAd'o........... .J. ....... u;.u............ ct..L LJ. CLLJ. .LeLI......... not;fy.L'h=...... .l. ...... Df"'f"'.L.............. U ~r (attorney disbarred where his trust account was out of trust by more than bar counsel's interrogatory"); Eshleman's Case, 126 N.H. 1, 2-3 (1985) ... filing [it] after [she] instructed him not to do so, and ... falsely answering done so, ... signing her nmne to the bankruptcy petition without her consent, stating to [his client] that he had filed her bankruptcy petition when he had not also Cohen's Case, 143 N.H. 169, 171 (1998) (attorney disbarred for "falsely false and misleading testimony to a judicial referee at a de novo hearing. See for lying to a marital master"over a period of several months" and for giving Additionally, we disbarred the attorney in Basbanes' Case, 141 N.H. at 6,

about it. Astles' Case, 134 N.H. at 606. home by committing fraud, compounded his misconduct by repeatedly lying we observed that the attorney, having sought commercial financing for his attorney; and repeatedly lied to the PCC during its investigation. In that case, applications; forged a document that purported to give him his'~life's pO,Xler of mortgage applications; lied to a paralegal, who was investigating one of the 604-0 p. 5 5 (1991), we disbarred an attorney who forged his wife's signature on two with the intent to benefit himself." Similarly, in Astles' Case, 134 N.H. 602, deceitful conduct toward a client and a tribunal over a span of several years the holder of a note owed by his client, the attorney engaged"in a course of 710,717 (2005), where, in addition to acquiring three mortgages and becoming For instance, we disbarred the attorney in Wolterbeek's Case, 152 N.H.

omitted). committee." O'Meara's Case, 1 p. 5 50 N.H. 157, 159 (2003) (quotation and citation including the respondents' failure to cooperate with the professional conduct observed ... that those cases involved additional and repeated misconduct, ordered disbarment for attorney misconduct involving dishonesty[,] [w]e have respondent engaged in an isolated instance of misconduct. Although"we have factors, the lack of injury to Grimard or the NNEREN, and the fact that the The ADO urges disbarment, despite the presence of four mitigating

practice of law were aggravating factors. Id. § 9.22(b), (i). respondent's selfish or dishonest motive and his substantial experience in the Standards, supra § 9.32(a), (e), (k), (I). The parties also agreed that the p. 6 6

141 N.H. at p. 6 6; nor did it involve a continuing course of dishonest conduct, Wolterbeek's Case, 152 N.H. at 717, or even"several months," Basbanes' Case, isolated instance of misconduct. His conduct did not span"several years," Rule violations, unlike those of the attorneys in disbarment cases, involved an the attorneys in cases in which we have ordered disbarment. The respondent's The respondent's conduct was significantly less egregious than that of

occurred in a single event. Bruzga's Case, 145 N.H. at 72. faced discipline for the first time in his career and because the violations it. We explained that disbarment \XlaS not proper, in part, because the attorney remorse for his misconduct, engaged in "semantical gamesmanship" to justify submitted the petition to harass and injure her, and instead of expressing misrepresentations about his ex-wife in an abuse and neglect petition, in Bruzga's Case, 145 N.H. at 71-72, for one year where he knowingly made knew were inaccurate." (Quotation omitted.) We also suspended the attorney formulation of inaccurate and incomplete sworn [discovery] responses that he for one year where he "orchestrated, assisted, counseled and tolerated the Feld's Case, 149 N.H. 19,21 (2002), for instance, we suspended the attorney In other cases involving dishonesty, we have suspended the attorney. In

his clients about filing a lawsuit on their behalf. Welts' Case, 13 p. 6 6 N.H. at 590. calculated to mitigate prejudice to his clients." In that case, the attorney lied to isolated course of conduct, which he voluntarily disclosed in a manner the attorney where his violations of the Rules"flow[ed] essentially from an Similarly, in Welts' Case, 136 N.H. at 593, we ordered public censure of

1 p. 6 60. presence of mitigating factors, public censure was the proper sanction. Id. at incidents occurring over an extended period of time," and because of the "engag[ing] in a concerted course of unethical conduct that involved multiple that in the absence of factors that justified imposing suspension, such as isolated incidents of misconduct." O'Meara's Case, 150 N.H. at 159. We ruled (Quotation omitted.) We observed that the attorney's dishonesty involved"two "gross embellishments on the truth lacking sound factual predicates." subpoena issued and made allegations about his wife in a motion that were N.H. at 158, the attorney lied to the court about the date on which he had a these cases engaged in an isolated instance of deceit. In O'Meara's Case, 150 159-60, and Welts' Case, 136 N.H. 588, 592 (1993), where the attorneys in For instance, we ordered public censure in O'Meara's Case, 150 N.H. at

engaging in a single episode of deceitful conduct. for the ADO conceded that we have never before disbarred an attorney for have not heretofore ordered the attorney disbarred. At oral argument, counsel In cases in which there has not been repeated deceit or dishonesty, we p. 7 7

BRODERICK, C.J.