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Bar News - July 17, 2009

NH Supreme Court Professional Conduct Committee

Howie, Mary advs. Attorney Discipline Office # 07-034

PUBLIC CENSURE SUMMARY

The New Hampshire Supreme Court Professional Conduct Committee deliberated the above-captioned matter and on April 27, 2009, issued a Public Censure.

On June 17, 2004, Coleen Walsh was appointed to perform the duties of guardian over the person and estate of Michael Cunneen. Ms. Walsh retained Ms. Howie to represent her in her capacity as guardian of Mr. Cunneen’s person and his estate. In or about March 2005, Mr. Cunneen and Ms. Walsh asked Ms. Howie to prepare a will for Mr. Cunneen. Ms. Howie prepared the Will. The will was signed on March 24, 2005, by Mr. Cunneen (hereinafter referred to as "Will 1"). Will 1 left Mr. Cunneen’s entire estate to Ms. Walsh and named her as executrix. At the time Will 1 was drafted and executed, Mr. Cunneen was incapacitated and incapable of making a will pursuant to the Court’s order of June 17, 2004. In or about July 2006, Mr. Cunneen wanted to change Will 1. At the time Will 2 was drafted, Ms Howie was aware of the Court’s order of June 17, 2004 declaring that Mr. Cunneen was incapacitated and incapable of making a will. Ms. Walsh was not aware of Mr. Cunneen’s intention to void Will 1 and drafting Will 2. Will 2 omitted Ms. Walsh as a beneficiary and named Ms. Howie as executrix. On May 31, 2007, a hearing was held to determine the validity of Wills 1 and 2. The Court (Hurd, J.) issued an Order finding that Wills 1 and 2 were legally invalid. The Court held: "Both wills were executed in violation of the Court’s Order of June 17, 2004 and are in violation of the provisions of RSA 464-A:40." A Motion for Clarification and Reconsideration was filed June 15, 2007, on behalf of Ms. Walsh and was denied without explanation.

The Committee accepted a Stipulation of Facts and Rule Violations that Ms. Howie violated: N.H. Rules of Professional Conduct Rule 1.1(a): Competence; Rule 1.7(a): Conflict of Interest; and Rule 8.4(a): Misconduct, by clear and convincing evidence.

Ms. Howie breached her duty to provide competent representation to Ms. Walsh, as guardian, when she drafted and finalized the execution of Wills 1 and 2. Ms. Howie’s failures to properly advise her client with respect to Mr. Cunneen’s legal capacity to make a will, and Ms. Howie’s decision to draft and finalize the execution of Wills 1 and 2, constitute clear and convincing evidence of a violation of N.H. R. Prof. Conduct 1.1(a).
Ms. Howie could not have reasonably believed her representation of Mr. Cunneen in preparing Will 2 would not adversely affect her relationship with Ms. Walsh in Ms. Walsh’s capacity as guardian. At no time was there an informed consent by Ms. Walsh to Ms. Howie during the preparation and execution of Will 2. At no time did Mr. Cunneen have the capacity to consent to Ms. Howie’s dual representation. Ms. Howie’s representation of Mr. Cunneen in the drafting and execution of Will 2 constitutes clear and convincing evidence of a violation of N.H. R. Prof. Conduct 1.7(a).

Ms. Howie stipulated to, and the Committee issued a Public Censure, and ordered payment of all costs associated with the investigation and prosecution of this matter. This matter is public record, and available for inspection at the New Hampshire Supreme Court Attorney Discipline Office, 4 Chenell Drive, Suite 102, Concord, New Hampshire 03301.

June 12, 2009

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