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Bar News - February 19, 2010


NH Supreme Court Professional Conduct Committee

Stodolski, Janina advs. Attorney Discipline Office # 08-051

SUMMARY OF PUBLIC CENSURE

On November 23, 2009, the Professional Conduct Committee issued a Public Censure to Janina Stodolski, Esquire, for violations of NH Rules Prof. Conduct 1.1(a)-(c): Competence, 3.4: Fairness to Opposing Party and Counsel and 8.4(a): Misconduct. Ms. Stodolski stipulated to the facts, violations of the Rules of Professional Conduct, sanction and the payment of costs in this matter.

The following facts were found by clear and convincing evidence: Ms. Stodolski represented [Mr. V.] in connection with a divorce action filed in Hillsborough County Superior Court, Southern District, in September 2005. The Court issued an Order of Notice dated September 26, 2005, which restrained the parties from selling, transferring, encumbering, hypothecating, concealing or disposing of any property, personal or real, except by written agreement of the parties. Mr. V. also filed suit against a former employer in connection with his termination. Mrs. V. was aware that Mr. V. was pursuing a claim.

As part of the divorce litigation, Ms. Stodolskiís client answered interrogatories propounded by his wife, and without careful review, forwarded them to opposing counsel, which included the following question:

24. With respect to any proposed or pending litigation in which you are or may be a party other than the litigation for which these interrogatories are being answered, including but not limited to [the action against his former employer], please state: a. the procedural status of the litigation; and b. the dates and descriptions of all future matters scheduled before the Court.

Ms. Stodolskiís client answered: "a. No Action"; "b. None." Three months later, the action against the former employer was settled, and a settlement check in the amount of $85,000 was deposited into Ms. Stodolskiís client trust account. She was instructed by her client to make certain disbursements from the settlement funds to cover associated legal fees, a loan to cover the former employer action, and certain other disbursements. Ms. Stodolski reminded her client about the non-hypothecation provision of the temporary decree, but complied with her clientís instructions. The disbursements also included $6,000 paid to Ms. Stodolski for her fees and certain personal expenses incurred by her client totaling $8,000. The disbursements were made without the opposing partyís consent or leave of the Court.

A final Decree of Divorce was issued on December 28, 2006. The Court "was greatly disturbed by the actions of Mr. [V.] and his counsel." The Court found that "counsel did not inform opposing counsel of the settlement and the disbursal of the funds. That is a clear violation of counselís obligation under Shafmaster. Mr. [V.]ís disbursal of said funds without agreement of the parties or order of the Court is a clear violation of the restraining order that has been in effect since September 2005."

The following rule violations were found by clear and convincing evidence:

NH Rule Prof. Conduct 1.1(a)-(c): Competence. Ms. Stodolski lacked specific knowledge or understanding of the law as it relates to standing orders restraining the hypothecation of a clientís assets pending resolution of an underlying divorce action, failed to properly advise her client and failed to act or refrain from acting on behalf of her client in a manner consistent with applicable law by failing to provide timely notice to opposing counsel; and by disbursing settlement funds without the necessary authority.

NH Rule Prof. Conduct 3.4: Fairness to Opposing Party and Counsel. Ms. Stodolski owed a duty to her opponent to comply with the law and rules of the Court relating to the hypothecation of her clientís assets and to provide timely and accurate discovery information relating to her clientís assets. She also breached her duty by knowingly disobeying the Courtís standing order by disbursing settlement proceeds without the requisite authority. She also failed to provide her opponent with accurate and timely information relative to the status and settlement of the matter against the former employer.

NH Rule Prof. Conduct 8.4(a): Misconduct: Having found the foregoing violations, Ms. Stodolski violated this Rule.

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.

January 6, 2010



Witkus, Lanea A. advs. Hugh M. Tamoney #06-029

SUMMARY OF SIX MONTH SUSPENSION WITH
FOUR MONTHS STAYED FOR TWO YEARS PLUS CONDITIONS

(Effective March 1, 2010)

On December 15, 2009, the Professional Conduct Committee issued a Six Month Suspension With Four Months Suspended Plus Conditions to Lanea A. Witkus, Esquire, for violations of NH Rules Prof. Conduct 3.3(a)(1): Candor to Tribunal; 3.4(d): Fairness to Opposing Party and Counsel and 8.4(a): Misconduct. Ms. Witkus stipulated to the facts and violations of the Rules of Professional Conduct.

The following summary of facts were found by clear and convincing evidence:

Ms Witkus represented two sisters in a probate action against two brothers. Opposing Counsel (O.C.) #1 initially represented the brothers. O.C. #1 made an oral request to Ms. Witkus for a copy of a Power of Attorney (POA) signed by Mrs. Patricia Tamoney. Ms. Witkus did not provide the POA to him. The brothers then hired O.C. #2 to represent them. O.C. #2 subsequently requested the POA. On December 8, 2005, Ms. Witkus referenced the POA in a Court hearing. O.C. #2 again requested the POA. In the latter part of the afternoon of February 16, 2006, and prior to Ms. Witkusís receipt of a final settlement agreement, Ms. Witkus instructed her secretary to fax the POA.

Ms. Witkus failed to adequately review the POA before the December 8, 2005, hearing, or following a request from O.C. #1 and numerous requests from O.C. #2 that it be forwarded to him. Ms. Witkus stated that only when she reviewed the POA on February 17, 2006, she realized that the document was defective. This was easily determined because Ms. Tamoney never signed the POA as is required for it to be valid.

The following rule violations were found by clear and convincing evidence:

NH Rule Prof. Conduct 3.3(a)(1): Candor to the Tribunal. Ms. Witkus, on five separate occasions, represented to a Court by way of offers of proof on December 8, 2005, that the POA existed.

NH Rule Prof. Conduct 3.4: Fairness to Opposing Party and Counsel. Ms. Witkus failed to timely comply with a reasonable discovery request on at least seven occasions with respect to a document which was clearly relevant and material to the case.

NH Rule Prof. Conduct 8.4(a): Misconduct: Having found the foregoing violations, Ms. Witkus violated this Rule.

The Committee issued a six month suspension with four months stayed, to begin on March 1, 2010. The stay is conditional upon no further violations for a period of two years. Ms. Witkus shall attend six hours of additional CLE credits and pay all costs associated with 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.

January 29, 2010

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