LD-2006-004, GREW'S CASE

The owner, Jonathan Labrie, was in his car at the time of the accident. Econoline Van (Econoline Van), the respondent hit the bumper of a parked car. November 26, 2004, while backing out of the Hampton Plaza in his Ford

admitted to practice law in New Hampshire on October 26, 2004. On The parties stipulated to the following facts. The respondent was

effective from the date of our original order of suspension. disbarred. We disagree and order the respondent suspended for two years Hampshire for six months. The ADO argues that the respondent should be suspend the respondent, James T. Grew, from the practice of law in New the decision of the Supreme Court Professional Conduct Committee (PCC) to DUGGAN, J. This is an appeal by the Attorney Discipline Office (ADO) of

orally), for the respondent. Upton & Hatfield, LLP, of Portsmouth (Russell F. Hilliard on the brief and to press. Errors may be reported by E-mail at the following address:

Attorney Discipline Office. Landya B. McCafferty, of Concord, on the brief and orally, for the

editorial errors in order that corrections may be made before the opinion goes No. LD-2006-004 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Attorney Discipline Office Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as involved in the accident. The next day, the respondent called Labrie yet again

p. 2 we can [

persuade him to falsely report that the Ford Windstar had been the vehicle

thank you. dark green, you may want to note that it’s a dark green van . . . explained that I was driving the Ford Windstar van, which is a Lafayette . . . and that, um, my van hit your front bumper, and I Van, but that the respondent had also been calling Labrie in an attempt to the agency . . . that I backed into you in the parking lot off of who informed him that not only had the respondent been driving the Econoline you can get your car repaired, quickly, I hope . . . . I explained to Windstar at the time of the accident. The claims adjuster then called Labrie,

stated, in pertinent part: later date. The following day, the respondent left Labrie a voicemail which

Windstar, and, um, I will give you a call back after I talk to them,

um, I just called Progressive . . . . I, uh, opened up a claim so that respondent who, once again, falsely reported that he had been driving the Ford On November 29, 2004, a Progressive claims adjuster called the

sic] the facts straight it will help out . . . . and informed the respondent that a claims adjuster would contact him at a

some damage to your car and that I was driving the green Ford and I will let them know that I backed into you, um, and there’s insurance company is Progressive . . . . I’ll call Progressive today,

Hi John, it’s James Grew again, I just want to follow up with you,

voicemail which, in relevant part, stated: A few minutes later, the respondent again phoned Labrie and left a

Windstar but not on his Econoline Van. Progressive issued a claim number, this false claim because, at the time, he was carrying insurance on his Ford driving his green Ford Windstar Van (Ford Windstar). The respondent made

backed into you the other day. I just wanted to let you know the number and a description of the Econoline Van. Hi John, it’s James Grew, the gentleman who unfortunately

Company and falsely reported that at the time of the accident he had been On November 27, 2004, the respondent contacted Progressive Insurance

identification information. Labrie, however, wrote down the license plate insured, and requested that Labrie contact him later to get the vehicle’s also told Labrie that he was unsure whether his Econoline Van was currently home address, and the information from his driver’s license. The respondent At the scene, the respondent gave Labrie his telephone number, current p. 3 3

because: (1) he had grown up poor and incurred substantial debt in obtaining time of the accident, he was under extreme financial and emotional duress

card with the respondent on December 21, 2004. “particularly significant.” In the letter, the respondent explained how, at the The PCC also found a letter submitted by the respondent to be

an isolated one in [the respondent’s] personal and professional history.” disciplinary process, his sincere remorse, and the fact that the incident “was respondent’s lack of a prior disciplinary record, his cooperation with the Ct. R. p. 3 37(9)(d). The PCC imposed a six-month suspension, emphasizing the felony to a class A misdemeanor. The Superior Court (37(9)(a), and referred the matter to the PCC on the issue of sanction, see Sup April 7, 2006, the respondent entered into a plea bargain that reduced the respondent immediately suspended from the practice of law, see Sup. Ct. R. crime” under Supreme Court Rule 37(9)(b). Accordingly, we ordered the conviction for class A misdemeanor insurance fraud constituted a “serious On May 31, 2006, we issued an order ruling that the respondent’s Receiving no response, Gault followed up on his letter by leaving his business assistance. conference in order to discuss “issues which have surfaced regarding this loss.” service. Progressive claims investigator, sent the respondent a letter requesting a fine; (3) $284 in restitution to Progressive; and (4) 100 hours of community $1,802.11 for repairing Labrie’s car. On December 16, 2004, Ralph D. Gault, a behavior and compliance with the terms of the sentencing order; (2) $1,000 months in the House of Corrections, all suspended for one year on good the respondent, in accordance with the plea agreement, as follows: (1) twelve

Grand Jury for one count of insurance fraud, a class B felony. However, on The respondent was subsequently indicted by the Rockingham County

Progressive is not responsible for his claim. Thank you for your repair out of my own pocket. His damage was minimal. months. I wanted to inform you that I have paid for [Labrie’s] Company, sent the respondent a formal demand letter in an attempt to recover communicate, for December and January are always very busy Thank you for leaving your card yesterday. Email is a good way to

and sent the following email to Gault: The following day, the respondent wrote a check to Geico for $1,802.11

On December 14, 2004, Labrie’s insurance provider, Geico Indemnity

[their] facts straight.” and left a voicemail requesting a return call so that he and Labrie could “get respondent should instead be disbarred.

profession.” The ADO has appealed the PCC’s order, arguing that the personal integrity,

aggravating or mitigating factors. circumstances, disbarment is generally the sanction. Standards, supra § 5.11. potential injury caused by the lawyer’s misconduct; and ( p. 4 4) the existence of the Standards, when an attorney engages in fraud, absent mitigating level insurance fraud, which is a “serious crime” under Rule 37(9)(b). Under integrity, commitment to serving the public, and commitment to the legal see Standards, supra § 5.1, by engaging in misdemeanorfound, the respondent’s “professional life, until this incident, reflect[ed] his In this case, the respondent breached his ethical duty to maintain because he was suffering from Alzheimer’s disease. At the same time, the PCC American Bar Association’s Case, 155 N.H. at 131. aggravating or mitigating factors in arriving at the ultimate sanction. Bosse’s Case, 152 N.H. 710, 714 (2005). We then consider the effect, if any, of attorney’s misconduct and identifying a baseline sanction. See Wolterbeek’s 155 N.H. at 68. The first three factors are used as an aid in categorizing the

profession, and prevent similar conduct in the future.” duty violated by the lawyer; (2) the lawyer’s mental state; (3) the actual or maintain public confidence in the bar, preserve the integrity of the legal Standards provide four factors to consider when imposing a sanction: (1) the attorney discipline is not to inflict punishment, but rather to protect the public, (Standards) for guidance. Bosse’s Case, 155 N.H. 128, 131 (2007). The

of the gravity of the unprofessional conduct. Id. attorney’s behavior, and not just the number of rules broken, is determinative mitigating circumstances appearing in the record.” Id. Ultimately, the circumstances, taking into account the severity of the misconduct and any Accordingly, each attorney discipline case is judged upon “its own facts and

omitted). In exercising this authority, we remain “mindful that the purpose of appropriate sanction.” Coddington’s Case, 155 N.H. 66, 68 (2007) (quotation birth; (5) one of his three children had been in and out of the hospital for a violation of the rules governing attorney conduct has occurred and, if so, the also required an extended stay in the hospital due to complications during “[W]e retain ultimate authority to determine whether, on the facts found, recently been reduced because of employment restructuring; ( p. 4 4) his wife had

from his practice representing low-income clients; (3) his wife’s salary had his law degree; (2) he had not been earning enough to provide for his family p. 5 5

profession than a lie.”

respondent’s lie was particularly egregious because it was made in support of a

stated previously, “no single transgression reflects more negatively on the legal legal profession by engaging in a deceitful course of conduct. As we have investigating the false claim. Moreover, the respondent caused injury to the respondent’s acts harmed Progressive, which expended time and money supra s. III, at 9; Bosse’s Case, 1 p. 5 55 N.H. at 132. The record indicates that the actual injuries to both the public and the legal profession. See Standards, As to the third factor, we note that the respondent’s conduct caused

supra s. II, at 6. acted with intent, which is “[t]he most culpable mental state.” substantial risk that fraud would result from his actions. Standards, subsequent attorney discipline matter). We therefore hold that the respondent convicted of a misdemeanor is estopped from re-litigating his guilt in a of City of New York, 333 N.E.2d 3 p. 5 50, 352 (N.Y. 1975) (holding that an attorney deceive.” RSA 638:20, II (2007) (emphasis added); see Levy v. Assoc. of the Bar and has thus acknowledged that he acted with “intent to injure, defraud or “constituted a crime.” Indeed, he pled guilty to the charge of insurance fraud intent.” Standards, supra § 3.0 cmt. The respondent admits that his conduct The record here shows that respondent’s mental state was “one of

supra s. II, at 6.

attendant circumstances of his conduct; or (3) a negligent failure to notice a conscious objective to defraud Progressive; (2) the knowledge of the nature or the proper inquiry is whether the respondent acted with either: (1) the that could potentially have hindered his judgment. Therefore, even if panicked, is the volitional nature of the respondent’s acts, and not the external pressures . . . .” negligence.” Standards, supra § 3.0 cmt. What is relevant to the second factor confidence in the integrity of officers of the court [in general] is undermined factors. The respondent’s “mental state may be one of intent, knowledge, or conflated factor two, the respondent’s mental state, and factor four, mitigating honesty.” defraud his insurance carrier.” In its finding, the PCC appears to have financial ramifications of the accident, than evidence of a specific intent to “mental state was more a reflection of his initial panic over the family and With respect to the second factor, the PCC found that the respondent’s

disbarment is the baseline sanction for the respondent. (quotation omitted). The first factor, standing alone, thus indicates that “every attorney at all times . . . be truthful.” Bosse’s Case, 1 p. 5 55 N.H. at 131 Standards, supra § 5.0. Accordingly, it is of the utmost importance that

attorney breaches his ethical duty to maintain personal integrity, “public

Bosse’s Case, 1 p. 5 55 N.H. at 131 (quotation omitted). Where an

law [comes with] the concomitant responsibilities of truth, candor and A severe sanction is called for in such cases because “the privilege of practicing p. 6 6

circumstance. conduct, they are at least worthy of consideration as an extenuating

inexperience as mitigation where attorney mismanaged his client’s trust therefrom. Compare Eshleman’s Case, 12 p. 6 6 N.H. at 6 (refusing to treat faced in his private life are not unique, and certainly do not excuse his a ground for leniency when the attorney’s offending conduct resulted through a period of severe “personal and financial stress.” While the issues he mitigating factor in this case. Standards, supra § 9.32(f). Inexperience is only As noted by the PCC, at the time of the accident the respondent was going Second, the respondent’s inexperience in the practice of law is not a

selfish motive as an aggravating factor). a mitigating factor. economic stressors. See Standards, supra § 9.22(b) (treating the existence of a from those motivated by desperation by considering such personal and we believe that it is important to distinguish those acts motivated by greed considered as mitigation. We address each asserted factor in turn. purported prevalence of financial stress in many acts of attorney defalcation,

See St. Pierre’s Case, 113 N.H. 198, 199 (1973). Despite the

71-72 (holding that depression is a personal problem warranting mitigation). decision to engage in a criminal course of conduct, personal or emotional problems . . . .”); see also Coddington’s Case, 155 N.H. at

First, we hold that the respondent’s personal and financial problems are the parties that these mitigating factors are applicable in this case. misconduct to truly demonstrate remorse.” (quotation omitted)). We agree with practice of law. The ADO disagrees, arguing that these factors should not be committed the crime, Massachusetts, see id. § 9.32(k); and (4) the incident was unrelated to his criminal conviction and one-year suspension from the practice of law in § 9.32(f); (3) he has suffered the imposition of other penalties; namely, his § 9.32(c); (2) he was relatively inexperienced in the practice of law, see id.

that: (1) he had personal and financial problems that contributed to his However, the respondent urges us to also consider as mitigation the fact

is disbarment.

71 p. 6 6 (“Where deceit is involved, a lawyer must admit to his professional

§ 9.32(e); and (4) sincere remorse, as demonstrated by his admission that he indicted, see id. § 9.32(d); (3) cooperation with the disciplinary process, see id. see Standards, supra § 9.32(a); (2) efforts to make restitution prior to being consider as mitigation the respondent’s: (1) lack of a prior disciplinary record, See Eshleman’s Case, 12 p. 6 6 N.H. 1, 5 (1985). Both parties agree that we should We next consider the numerous mitigating factors present in this case.

and the respondent’s culpable mental state, we hold that the baseline sanction criminal scheme. In light of these injuries, as well as the ethical duty breached p. 7 7

correct sanction. attorneys who breach the special fiduciary duties created by the attorney-client

we consider those criminal penalties as mitigation when determining the But that line is drawn for the purpose of increasing the sanction given to state’s sanction in the interests of parity, those where his actions do not. See Reiner’s Case, 152 N.H. 594, 598 (2005). attorney has been disciplined in another state, we typically consider that other those cases where an attorney’s actions “directly threaten his clients” and Case, 155 N.H. at 131. To be sure, there is a distinction to be made between citizen], his conduct adversely reflects upon his fitness to practice.” Bosse’s though [the respondent] engaged in this conduct in his capacity as a [private private citizen at the time of the incident to be a mitigating factor. “Even Finally, we do not find the fact that the respondent was acting as a

this case. suspension from the practice of law in Massachusetts, is a mitigating factor in objectives of the attorney discipline system is served by the criminal sentence, mitigation. Accordingly, the respondent’s criminal sentence, and not his engaging in that same conduct in the future. Accordingly, because one of the see Sup. Ct. R. 3 p. 7 7(12), and not for criminal penalty, therefore, that attorney will generally be deterred from suspension from the practice of law in Massachusetts. If anything, when an This logic does not apply with equal force, however, to the respondent’s

imposition of a criminal sentence). Hook, 91 P.3d at 10 p. 7 74 (mitigating an attorney’s sanction in response to the 2003) (finding the existence of criminal penalties to be a mitigating factor);

See In re Conduct of McDonough, p. 7 77 P.3d 306, 311 (Or.

That the respondent was newly admitted to the bar is therefore irrelevant.

2004). Where an attorney’s offending conduct has resulted in imposition of a unethical or criminal conduct. People v. Hook, 91 P.3d 10 p. 7 70, 1074 (Colo. shares with the criminal justice system a common goal of deterring future not exist “to inflict punishment,” Bosse’s Case, 155 N.H. at 131, it nevertheless other penalties or sanctions . . . .”). While the attorney discipline system does See Standards, supra § 9.32(k) (“Mitigating factors include . . . imposition of his conviction for insurance fraud are “other penalties” that warrant mitigation. Third, the criminal penalties suffered by the respondent in response to

understand that insurance fraud is both illegal and morally reprehensible. which is evident to any lay person. It does not take a seasoned legal intellect to arises from an act performed outside of the practice of law, the illegality of inexperience and the offending conduct. Here, the respondent’s culpability procedural rules). To be relevant, there must be a nexus between the incompetently represented a client by neglecting to follow well-established inexperience as a mitigating factor where the attorney had, inter alia, Action Against Jensen, 46 p. 8 8 N.W.2d 541, 543, 545 (Minn. 1991) (treating account and lied to a tribunal regarding the same conduct), with Disciplinary 8

April 4, 2007.

is therefore analogous to

suspended since September 19, 2006, the date of the PCC’s original order for a

Id. at 132, 134-35. However, because Bosse had already been

imposed a two-year suspension to run prospectively from the date of the order, had a selfish motive and substantial experience in the practice of law, we weighing the existence of three mitigating factors against the fact that Bosse separate acts were technically only one “instance of misconduct” and, after effect.’” Bosse’s Case, 155 N.H. at 129-30. In that case, we noted that the two misinformed the listing agent that “the purchase and sale agreement was ‘in forged a third party’s signature to a real estate listing document and

isolated one in [the respondent]’s personal and professional history.” This case Moreover, as noted by the PCC, the incident underlying this case is “an

profession and preventing similar conduct in the future.” harass, and “[e]ngaging in semantical gamesmanship” to justify his actions). maintain[ing] public confidence in the bar, preserv[ing] the integrity of the legal ex-wife in an abuse and neglect petition, submitting said petition in an effort to (suspending an attorney for one year for making misrepresentations about his inaccurate” (quotation omitted)); Bruzga’s Case, 145 N.H. 62, 71-72 (2000) motive. inaccurate and incomplete sworn [discovery] responses that he knew were where he “orchestrated, assisted, counseled and tolerated the formulation of Feld’s Case, 149 N.H. 19, 21, 30 (2002) (suspending an attorney for one year This sanction accords with those in prior attorney discipline cases. See

See Bosse’s Case, 155 N.H. at 135. 152 N.H. at 717. We conclude instead that a two-year suspension is required. pecuniary gain, which is decidedly selfish in nature.

further “the goals of the attorney discipline system [of] protect[ing] the public, that the six-month suspension recommended by the PCC is sufficient to suspension is the appropriate sanction in this case. We do not agree, however, aggravating factor the fact that the respondent had a selfish and dishonest factors, we agree with the PCC that, despite a baseline sanction of disbarment, Based upon our consideration of the foregoing mitigating and aggravating

pay out of pocket for Labrie’s losses. His motive was therefore about personal respondent’s intent was to defraud Progressive so that he would not have to was suffering, we agree that this aggravating factor is applicable. At root, the conceivably acting under duress from the personal and financial problems he

See Standards, supra § 9.22(b). Although the respondent was

In support of its argument for disbarment, the ADO offers as an

attorney who was acting as a private citizen. relationship, and not for the purpose of lessening the sanction affixed to an p. 9 9

enforcement of discipline in this case. attorney discipline system for all expenses incurred in the investigation and parties in their stipulation, the respondent is also ordered to reimburse the

requirements articulated in Supreme Court Rule 37(14). As agreed by the

temporary suspension. BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

Prior to reinstatement, the respondent must comply with all

year suspension will run from May 31, 2006, the date of our original order of less of a sanction than that in Bosse’s Case, we hold that the respondent’s twoapplicable. Id. at 132. Therefore, because the respondent’s conduct warrants aggravating factor of “substantial experience in the practice of law” is not contributed to his misconduct”). In addition, unlike in Bosse’s Case, the prior cases because there were no “personal and emotional problems that 155 N.H. at 134 (explaining how Bosse’s conduct was more egregious than result, at least in part, of personal and financial problems. See Bosse’s Case, Unlike in Bosse’s Case, however, the respondent’s conduct was the

effectively suspended for over two years and six months. to “administer a . . . suspension not to exceed six (6) months”), Bosse was six-month suspension, see Sup. Ct. R. 37(3)(c)(2) (granting the PCC authority