LD-2003-011, COFFEY'S CASE

Professional Conduct 1.4(b), 1.5(a), 1.7(b), 1.8(a)(1), 1.8(b), 1.8(j), 2.1 and 8.4(a) convincing evidence that the respondent violated New Hampshire R ules of to a Judicial Referee (Manias, J.) for a hearing. The referee found by clear and John J. Coffey, from the practice of law for two years. We referred the petition Professional Conduct (committee) filed a petition to suspend the respondent, DUGGAN, J. On December 29, 2003, the Supreme Court Committee on

McEachern on the brief, and Mr. Shaines orally), for the respondent.

Shaines & McEachern, P.A., of Portsmouth (Robert A. Shaines and Paul

professional conduct.

Sherry M. Hieber on the brief, and Mr. Stark orally), for the committee on

Law Office of Rodney L. Stark, P.A., of Manchester (Rodney L. Stark and

No. LD - 2003 - 011 Original

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial 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

with real estate practices to draft a deed conveying the property to the The respondent recommended three law firms in the Portsmouth area

purchase the property. not interested in mortgaging the property, the respondent proposed t hat he the appeal could exceed that retainer. After Hopkins indicated that she was alternative means, he would require a retainer of $30,000 and that his fee for alternative means for payment” and that if she w as no longer interested in this appeal would be “very expensive.” He noted that they had discussed “an On June p. 2 2, 1998, the respondent sent Hopkins a letter stating that the

proposed to take a mortgage on the Rye property as payment for her legal fees. told the respondent that she did not want to dip into her liquid assets and he Hopkins and told her that the appeal could cost more than $30,000. Hopkins In May 1998, the respondent discussed the cost of the appeal with

on A pril p. 2 28, 1998. See generally Canty v. Hopkins, 146 N.H. 151 (2001). We accepted the appeal grounds. The trial court granted the motion and Canty appealed to this court. The respondent, on Hopkins’ behalf, moved to dismiss the suit on res judicata Hopkins in 1997, claiming to have a remainder interest in th e Rye property. Nonetheless, John Canty, Jr. continued to press his claims and sued

1996). court’s decision. See In re Estate of John F. Canty, No. 95 - 874 (N.H. May 3, ruled in Hopkins’ favor and, on a ppeal, we summarily affirmed the probate bequeathed the property to John Canty, Sr.’s grandchildren. The probate court represented Hopkins in these proceedings and drafted her will, which claims in probate court concerning his father’s estate. The respondent From 199 p. 2 2 to 1996, the Cantys’ son, John Canty, Jr., made vario us

Hopkins after Caroline Canty died in 1986 and John Canty died in 1991. property as joint tenants with the right of survivorship. The property passed to Hopkins and her friends, John an d Caroline Canty, purchased the Rye The events leading up to this conveyance began in June 1970, when

The property had been assessed at over $ p. 2 200,000. respondent’s estimated fee of $30,000 for handling an appeal to this court. was for a stated consideration of $50,000, whi ch was based in part upon the the respondent property located on Ocean Boulevard in Rye. The conveyance 9, 1998, the respondent’s client, Natalie Hopkins, signed a deed conveying to The referee found, and the record supports, the following facts. On July

we conclude that the respondent’s conduct warrants disbarment. and recommended a two - year suspension. We adopt the referee’s findings, but p. 3 3

it as a problem. her home and observed her hoarding behavior, he testified that he did not see newspapers, magazines and food. Although the respondent visited Hopkins in to get through it. Another neighbor said the house was filled with junk mail, there were so many things in the house, a person would have to make a path filled with bags, the bed was covered with things Hopkins had bought and 1997, Lannon visited Hopkins almost every day. She said that the house was September 1997. After that, Hopkins’ house was unkempt. By December formerly taught at Connecticut College, was very sharp and well - dressed until Hop kins’ neighbor, Mary Lou Lannon, testified that Hopkins, who

suffering from dementia, most likely of the Alzheimer’s type. term memory were impaired, her insight and judgment were poor and she was psychiatrist examined her and determined that her immediate recall and short hospitalized because of the leg ulcer s and confusion. On April 4, 1998, a disheveled, upset and confused. Soon after these examinations, Hopkins was Alzheimer’s disease.” She had weeping ulcers on her legs and appeared March 1998 and determined she suffered from “early dementia, probably Hopkins’ primary care physician testified that he examined her twice i n

the first half of 1998. neighbors, police and nurses who had contact with Hopkins in late 1997 and referee relied upon medical evidence as well as the testimony of friends, property to the respondent on July 9, 1998.” In reaching this concl usion, the mental capacity to make an informed decision about conveying the Rye also found “by clear and convincing evidence that [Ms.] Hopkins lacked the at worst, suffering from dementia beca use of Alzheimer’s [disease].” The referee found “overwhelming evidence” that she was “at best, mentally impaired, and eighty - one years old and her mental condition was deteriorating. The referee At the time Hopkins deeded the Rye property to the respondent, she was

matter of the pending appeal. Pelech also was unaware that the property being conveyed was the subject work that had been done on the appeal through May 27, 1998. Attorney respon dent’s billing records indicate that Hopkins actually owed $5, p. 3 305 for the conveyance would be in consideration for past and future legal services. The was that Hopkins owed the respondent $40,000 in past legal bills and that the respondent was also present. Attorney Pelech testified that his understanding Hopkins signed the deed on July 9, 1998, in Attorney Pelech’ s office. The

respondent paid Attorney Pelech for this service. [as] a gift, and partly for fees,” subject to a life estate for Hopkins. The contacted to prepare a warranty deed conveying the property to him “largely respondent. Hopkins selected Attorney Bernard Pelech, whom the respondent p. 4 4

Case, 150 N.H. 585, 586, cert. denied, 125 S. Ct. 97 (200 p. 4 4) (quotation omitted). attorney conduct has occurred and, if so, the appropriate sanction.” Kersey’s determine whether, on the facts found, a violation of the rules governing findings if supported by the record, we retain the ultimate authority to In a lawyer discipline case, “although we defer to the referee’s factual

suspended from the practice of law for two years. character and reputation. The referee recommends that the respond ent be disciplinary record, his cooperation with the committee’s investigation and his law. As mitigating factors, the referee found the respondent’s unblemished respondent’s selfish motive and his substant ial experience in the practice of The referee found as aggravating factors Hopkins’ vulnerability, the

potential injury to [Ms.] Hopkins.” “knowingly, as opposed to negligently and that his conduct caused injury or Conduct. The referee found that the respo ndent violated these rules referee found that the respondent had violated multiple Rules of Professional contrary.” Based upon these factual findings, and others set forth below, the not find this testimony credible “[i]n light of the overwhelming evidence to the was mentally competent to deed her home to the respondent, the referee did Although the respondent and Attorney Pelech both testified that Hopkins

smelled of urine and was beginning to exhibit signs of fecal incontinence. and over what they have heard. By late June, a nurse noted that Hopkins speech, loose associations and “echolalia,” which causes people to repeat over Nonetheless, her condition deteriorated. She exhibited confused, rambling taking Aricept, a medication for pat ients with early signs of dementia. Association (VNA). Their records showed that in June 1998, Hopkins began During this time, Hopkins was also visited by the Visiting Nurses

Hopkins was “very sharp.” The officer did not remember making this call. 1998, regarding the call the previous day and that the officer told him t hat The respondent testified that the police officer called him on April 1 p. 4 4,

intruder. still there but the officer checked the bedroom and found no evidence of an When the officer arrived at her house, Hopkins insisted th at the strangers were Hopkins in which she reported that there were two intruders in her bedroom. groceries and magazines. On April 13, the officer responded to a call from in the spring of 1998. He also sai d the house was cluttered with canned goods, A Rye police officer responded to a number of calls at Hopkins’ residence

also did not bathe and became incontinent. She smelled of urine in public. so that, on some occasions, she had no lights, telephone or hot water. Hopkins By spring of 1998, Hopkins was unable to use her checkbook to pay bills p. 5 5

in future cases. We thus conclude that because we ordered further briefing decision would discourage other attorneys from accepting the referee’s findings is part of this tactical decision. To penalize the respondent for this tactical harsher sanction. The attorney’s decision to accept the substantive violations accept the report without briefing and oral argument and would not consider a respondent initially accepted the referee’s report in hopes that we would also create a procedural trap in attorney discipline cases. It may be that the and recommendations as limiting the issues he can subsequently raise would Construing t he respondent’s initial acquiescence in the referee’s findings

Conduct. referees’ findings concerning substantive violations of the Rules of Professional argued only the appropriateness of the sanction and never contested the Case, 137 N.H. 3 p. 5 51, 357 (1993). In both cases, however, the respondent committee relies upon O’Meara’s Case, 150 N.H. 157, 159 (2003), and Jo nes’ referee’s report and did not wish to be heard. In support of this argument, the Professional Conduct by initially indicating that he did not challenge the his right to challenge the referee’s finding that he violated the Rules of We first address the committee’s argument that the respondent waived

I. Waiver

single fact pattern. Conduct were used in an improper fashion to create multiple violations out of a appeal was clearly excessive; and fourth, whether t he Rules of Professional whether the respondent’s estimate of $30,000 for handling Hopkins’ case on conveyed an interest in the property that was the subject of the litigation; third, awareness of that condition; second, whether under Rule 1.8(j), the deed finding concerning Hopkins’ deteriorating mental condition and respondent’s issues: First, whether there was sufficient evidence to support the referee’s After we ordered briefing and oral argument the respondent raised four

the only issue before this court is the appropriate sanction. contest the referee’s finding that he violated the Rules of Professional Conduct, expenses. The committee argues that because the respondent initially did not respondent, however, objected to the commi ttee’s request for assessment of report of the referee and he does not desire to be heard thereon.” The to the referee’s report, the respondent indicated he “does not challenge the incurred in the inve stigation and prosecution of the petition. In his initial reply had failed to address its request that the respondent be assessed the expenses The committee accepted the referee’s report but noted that the referee

Id. person could reach the same conclusion based upon the evidence presented. We review the findings made by the referee to determine whether a reason able p. 6 6

had known Hopkins for twenty years and represented her for eight years, had services.” The referee found that at the time of the transaction, the respondent and that “[l]awyers are trained to perform legal services not psychological respondent argues that no one informed him of Hopkins’ mental deterioration With respect to the respondent’s knowledge of Hopkins’ condition, the

Rye property to him as a gift is not compelled by the record. property. Thus, the respondent’s claim that Hopkins intended to convey the that Hopkins told her that the respondent wanted to purchase the Rye was corroborated by an entry in her personal journal on May 12, 1998, noting Hopkins told her th e respondent wanted to buy her home. Lannon’s testimony appeal and alternative methods for payment. Second, Lannon testified that had no handwritten notes concerning their discussions of the cost of the reasons. First, unlike many other conversations with Hopkins, the respondent property to him as a gift, the referee found this testimony “not credibl e” for two Although the respondent testified that Hopkins proposed to convey the

that Hopkins understood the nature of the transaction. Department of Health and Human Services, and Attorney Pelech’s assessment Donna Williams, an elderly protection worker at the New Hampshire Hopkins had the mental capacity to make this gift based upon the testimony of Hopkins intended to convey the Rye property to him as a gift. He argues that The respondent also argues that there was “substantial e vidence” that

Case, 150 N.H. at 58 p. 6 6. respondent. We thus defer to the referee’s finding on this issue. See Kersey’s capacity to make an informed decision about conveying the Rye property to the evidence to support the referee’s conclusion that Hopkins la cked the mental evidence to support the respondent’s contention, there is also substantial execute two powers of attorney in February 1999. Although there is some respondent’s office and anot her attorney testified that Hopkins was able to that Hopkins was competent when she executed a will on July 9 in the status was recorded as alert and oriented. The respondent’s secretary testified to Aricept therapy” and that on July 9, the day she signed the deed, her mental 1998, that Hopkins’ “overall orientation to time and date improved, secondary to Aricept. The respondent relies upon, for example, a VNA notation on July 8, impairment was at an early stage and that Hopkins was responding positively Hopkins’ mental condition. He points to evidence suggest ing that any mental The respondent first challenges the referee’s findings concerning

II. Hopkins’ mental condition

the recommended sanction. findin gs concerning violations of the Rules of Professional Conduct as well as and oral argument in this case, the respondent may challenge the referee’s p. 7 7

agree. The referee ruled that Rule 1.8(j) has no exception for frivolous claims. We conclude that because Canty’s claim was frivolous, Rule 1.8(j) does not apply. judicata grounds by the superior court. The respondent apparently asks us to Canty, Jr.’s claim against the property had already b een dismissed on res because at the time Hopkins deeded the property to the respondent, John property was “not dependent on the outcome of the litigation in any way” prohibited by Rule 1. 8(j). The respondent argues that his interest in the Rye proprietary interest” in the litigation he was conducting for Hopkins as The second issue raised by the respondent is whether he acquired “a

III. Rule 1.8(j)

evidence detailed above supports the referee’s finding on this issue. mental state, the issue of the respondent’s knowledge is a factual one. The Hopkins and that he was Hopkins’ only support. Like the issue of Hopkins’ worker from the VNA, he told her that he saw no need for a case conference for decisions. For example, when the respondent spoke wi th Ms. Weibold, a social no effort to ascertain whether she had the mental capacity to make informed know it.” Although he had many opportunities to do so, the respondent made there was something wron g with Natalie Hopkins, there was no way for me to respondent testified, “[U]nless someone took it upon themselves to tell me that turned a “blind eye” towards Hopkins’ mental condition. Indeed, the and convincing evidence that this was by choice and that the respondent unaware” of Hopkins’ deteriorating mental condition, the referee foun d by clear To the extent that the respondent asserts that he was “absolutely

that she smelled of urine when she signed the deed in Attorney Pelech’s office. 1998, that Lannon was concerned that Hopkins was not paying her bills and to the hospital in April of 1998, that she was in a car accident on June 29, evidence establishes that, at a minimum, he knew that Hopkins was admitted respondent was informed specifically that Hopkins suffered from dementia, the Moreover, although there is no documentation showing that the

were turned off because she failed to pay her bills. respondent that Hopkins could not manage her checkbook and her utilities signed anything at that meeting. Lannon also testified that she informed the respondent took her to meet Attorney Pelech in July 199 p. 8 8 or whether she had disheveled and dirty, Lannon testified that Hopkins could not recall why the mentally deteriorated to a significant degree. In addition to appearing Hopkins for this long did not notice that, by the spring of 1998, s he had we agree, that it is not credible that someone who had known and represented bright, strong - willed and meticulous in her appearance. The referee found, and drafted her will and had a power of attorney for her. He knew Hopkins to be 8

actual fee of $64,242. p. 8 89 charged for the appeal were clearly excessive. Attorney Cazden conclude d that both the estimated fee of $30,000 and the secretary’s time and that all of the time was billed at the rate of $175 per hour. his billing records reflect a combination of his hours and his paralegal’s and out of town without access to research facilities. The respondent admitted that hours reviewing twenty - four cases cited in the appellant’s brief while he was During his two - week vacation in July 1998, the respondent billed forty - nine to eighteen hours,” and eighty - five hours to prepare for the oral argument. hours to write the brief, including “day after day after day of anywh ere from ten Review of the respondent’s billing records showed that he billed 225

and seventy - five hours of work by the attorney. testified that a typical State supreme court appeal would require between thirty only had to respond to the appellant’s arguments. Attorney Cazden also already familiar with the case and, because he represented the appellee, he transcript to review because the issue was purely legal, the respondent was the respondent’s fee at the superior court level was under $3, 000, there was no as much as $12,000. She based this opinion on several factors including that Canty appeal would be in the “five to ten thousand dollar range” but could be reported decisions. Attorney Cazden te stified that a reasonable fee for the Elizabeth Cazden, who has handled numerous appeals, including fifty - four The referee relied upon the testimony of the committee’s expert, Attorney

whether the fee was clearly excessive. whether the fee charged violated Rule 1.5(a).” Id. We thus review de novo measure the allegedly excessive fee against the reasonable fee to determine referee, and this court upon review of the referee’s findings, will be able to 137 N.H. 314, 320 (19 93). “Once a reasonable fee has been determined, the generally accepted, reasonable fee for the services in question.” Kelley’s Case, violation of Rule 1.5(a), the committee “must present evidence establishing a handling the appeal was “clearly excessive” under Rule 1.5(a). To prove a evidence to support the referee’s finding that his estimated and actual fee for The third issue raised by the respondent is whether there was sufficient

IV. Rule 1.5(a)

therefore reject his argument. such an exception would cre ate uncertainty as to the scope of Rule 1. p. 8 8(j). We cause of action is frivolous, Rule 1.8(j) has no applicability. Moreover, to adopt respondent. The respondent cites no authority for his argument that if the was the Rye property and Hopkins deeded an interest in that property to the lawyer is conducting for a client . . . .” Here, the subject matter of the litigation proprietary interest in the cause of action or subject matter of litigation the Rule 1.8(j) provides, in pertinent part: “A lawyer shall not acquire a p. 9 9

(2) Rule 1.5(a) by charging his client a clearl y excessive fee;

practical aspects of a matter and alternative courses of action; (1) Rule 1.4(b) by failing to explain to his client the legal and

Professional Conduct: adopt the referee’s findings that the respondent violated the following Rules of that her mental condition had deteriorated at the time of the conveyance. We capacity to deed the Rye property to him as a gift and that he did not know We thus reject the respondent’s contention that Hopkins had the mental

attorney’s behavior.” Flint’s Case, 133 N.H. 685, 68 p. 9 9 (1990). particular rules violated, but is determined largely with reference to the conduct is not determined solely by the number of rules broken or by the not address this argument, howev er, because “[t]he gravity of unprofessional duplicitous and “destroys professional livelihoods and reputations.” We need professional misconduct for a lawyer to violate any of the other Rules, is of a single fact pattern,” and that Rule 8.4(a), which states that it is should not be used in a prosecutorial fashion to create multiple violations out Finally, the respondent argues that “[t]he rules of [professional] conduct

V. Rule 8.4(a)

his finding that the respondent’s fee was clearly excessive. referee that Attorney Cazden’s testimony was more persu asive and we adopt charged by another firm was of little probative value. We thus agree with the retainer in this case. Pelech’s comparison of his fee in one case to the fee McGee testified about a $30,00 0 fee, which was only the estimated fee and Neither of the respondent’s witnesses squarely addressed the actual fee.

into evidence the compromise of a claim to prove its amount). value on the reasonableness of a fee. See N.H. R. Ev. 408 (making inadmissible as well. More fundamentally, the amount of a settlement is of little p robative Thus, the settlement included not only the fee for the appeal but other services settlement was for “the value of services to the decedent during her lifetime.” With respect to the probative value of the settle ment, we note that the

settlement of the fees Hopkins’ estate owed to him. The respondent also relies upon the fact that he received $33,000 in 2001 as a for an appeal when another firm had quoted the same client a fee of $35,000. for appeals vary considerably and that in one case, he charged a client $12,000 the estimated fee of $30,000 was not unreasonable. Pelech testified that fees respondent’s expert, Attorney John McGee. McGee testified that in his opinion, The respondent instead relies upon the testimony of Attorney P elech and the The respondent’s brief completely ignores Attorney Cazden’s testimony. p. 10 10

avoid conflicts of interest. According to the Standards, the litigation. These actions resulted in a breach of the respondent’s duty to her disadvantage and acquiring a proprietary interest in the subject matter of with his client, using information related to the representation of Hopkins to a n interest adverse to his client, entering into an unreasonable transaction of Hopkins to be materially limited by his own interests, knowingly acquiring The respondent violated Rules 1.7 and 1.8 by allowing his representation

factors.” Standards, supra § 3.0; see Kersey’s Case, 150 N.H. at 587. by the lawyer’s misconduct; and (d) the existenc e of aggravating or mitigating violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused the following factors for courts to consider in imposing sanctions: “(a) the duty N.H. 19, 28 (2002), cert. denied, 540 U.S. 815 (2003). The Standards set forth Sanctions (1992) (Standards), we look to them for guidance. Feld’s Case, 149 Although we have not adopted the ABA Standards for Imposing Lawyer

account the severity of the misconduct. Id. future.” Id. (quotation omitted). The sanction we imp ose must take into preserve the integrity of the legal profession, and prevent similar conduct in the its purpose “is to protect the public, maintain public confidence in the bar, inflicting punishment for an offense. O’ Meara’s Case, 150 N.H. at 159. Rather, our authority, we are mindful that discipline is not intended as a mode of Conduct noted above, we next consider the appropriate sanction. In exercising Having found that the respondent violated the Rules of Professional

VI. Sanction

(8) Rule 8.4(a) by violating the Rules of Professional Conduct.

judgment in rendering advice to his client; and (7) Rule 2.1 by failing to exercise independent professional

matter of litigation in which he was representing his client; (6) Rule 1.8(j) by acquiring a proprietary interest in the subject

of his client to her disadvantage and without her informed consent; (5) Rule 1.8(b) by using information related to the representation

which were unreasonable to her; client and entering into a transaction with his client, th e terms of (4) Rule 1.8(a)(1) by knowingly acquiring an interest adverse to his

materially limited by his own interests; (3) Rule 1.7(b) by allowing his representation of his client to be p. 11 11

referee also found the following aggravating factors: “(1) [Ms.] Hopkins’ with the [c]ommittee’s investigation; and (3) his character and reputation.” The “(1) the respondent’s prior unblemished disciplinary record; (2) his cooperation aggrav ating and mitigating factors. As mitigating factors, the referee found: Before we determine the appropriate sanction, we must also consider

protracted series of lawsuits in order to recover the property. for the legal services provided. Hopkins and her estate then engaged in a was worth over $200,000 in consideratio n for a fee that was clearly excessive Hopkins. As a result of the conveyance, the respondent received property that We also find that the respondent’s actions caused serious injury to

his duties as a professional with the intent to benefit himself. Thus, we find that the respondent knowingly engaged in conduct that violat ed services was worth substantially more than the amount that Hopkins owed. clearly excessive and the real estate he received in exchange for his legal the respondent’s actual and estimated fee s for representing Hopkins were serious injury to a client . . . .” Standards, supra § 7.1. As discussed above, obtain a benefit for the lawyer or another, and causes serious or potentially conduct that is a violati on of a duty owed as a professional with the intent to “Disbarment is generally appropriate when a lawyer knowingly engages in imposed when a lawyer charges a client unreasonable or improper fees. Section 7.0 of the Standards addresses the appropriate sanction to be

R. Prof. Conduct 1.8 ABA Model Co de Comments. circumstances and could independently assess her mental condition. See N.H. obtained detached advice from a lawyer who was fully informed of the t ransfer the property as a gift, the respondent failed to ensure that Hopkins evidence to support the respondent’s contention that Hopkins intended to substantially less than the fair market value of the property. Even if there was that resulted in his acquisition of an interest in Hopkins’ real property for Here, the respondent knowingly entered into a transa ction with his client

potential injury to a client.” Id. § 4.32. disclose to a client the possible effect of that conflict, and causes injury or a ppropriate when a lawyer knows of a conflict of interest and does not fully Standards, supra § 4.31(a). Suspension, on the other hand, “is generally

or potentially serious injury to the client. with the intent to benefit the lawyer or another, and causes serious client knowing that the lawyer’s interests are adverse to the client’s informed consent of [the client] . . . engages in representation of a Disbarment is generally appropriate when a lawyer, without the p. 12 12

the respondent is hereby disbarred and is ordered to reimburse the committee forthrigh t testimony to defend his conduct requires disbarment. Accordingly, mentally ill client by charging an exorbitant fee and then relies upon less than 2003). The conduct of a lawyer who selfishly takes advantage of an elderly, the integrity of the legal profession. See Sup. Ct. R. 37(13)(f) (2003; amended disbarment is necessary for the protection of the public and the preserva tion of two - year suspension is an adequate sanction. Rather, we conclude that aggravating factors present in this case, we disagree with the referee that a In light of the serious injury suffer ed by Hopkins and the significant

justify an increase in the level of sanction recommended. Standards, supra § 9.22(g). We find that these important aggravating factors arranging for Hopkins to deed the Rye property to him as a gift. See violations, but has instead maintained that he followed the proper pr ocedure in Furthermore, the respondent has not accepted responsibility for his ethical 9.22(i); see also Richmond’s Case, 152 N.H. at ___, 872 A.2d at 1030. practice of law is an additional aggravatin g factor. Standards, supra §§ 9.22(d), mental health. We agree with the referee that s ubstantial experience in the was particularly egregious in light of Hopkins’ vulnerability due to her declining client, the terms of which were unreasonable to her. The respondent’s conduct selfishly by charging excessive fees and entering into a transaction with his With regard to aggravating factors, we agree that the respondent acted

146 N.H. 466, 467 (2001). mitigating in other cases. Cf. O’Meara’s Case, 150 N.H. at 159; Kalil’s Case, his actions and has not shown the level of remorse that we have found to be credible. Third, the respondent has failed to acknowledge the wrongfulness of mental condition and his knowledge of her deteriorating health was not found, and we agree, that the respondent’s testimony concerning Hopki ns’ Case, 152 N.H. ___, ___, 872 A.2d 1023, 1030 (2005). Second, the referee professional duty to cooperate with the committee’s investigation.” Richmond’s level of cooperation is a mitigating factor in th is case. First, “a lawyer has a We disagree, however, with the referee’s finding that the respondent’s

disciplinary action.” Jones’ Case, 137 N.H. at 360. acknowledged mitigator, but it does not dispense with the necessity for supra § 9.32(g). In addition, “[a] bsence of a prior disciplinary record is an that good character and reputation are mitigating factors. See Standards, this case; however, we do not ascribe them significant weight. We acknowledge We agree with the referee that there are two m itigating factors present in

experience in the practice of law.” See Standards, supra §§ 9.22, 9.32. vulnerability; (2) the respondent’s selfish motive; and (3) his substantial p. 13 13

specially assigned under RSA 490:3, concurred. BRODERICK, C.J., and GALWAY, J., concurred; HORTON, J., retired,

prosecuting this matter. See Sup. Ct. R. 37(16) (2003; amended 2003). for all of its expenses, including legal fees, incurred in investigating and