Bar News - January 5, 2007
NH Supreme Court Professional Conduct Committee
Six Month Suspension, Stayed for Two Years
Contingent on Compliance with Terms and Conditions of Stipulated Agreement
The New Hampshire Supreme Court Professional Conduct Committee deliberated the matter of Maynard, Steven L. advs. James A. Pierce # 03-096, and on October 30, 2006, issued a six month suspension, stayed for two years, contingent on compliance with the terms and conditions of a stipulated agreement.
Steven L. Maynard was hired by James A. Pierce to handle a claim of medical negligence that Mr. Pierce had filed pro se in federal district court. On August 20, 2002, Mr. Maynard received a set of interrogatories propounded of Mr. Pierce by one or more of the defendants, which were completed and returned to Mr. Maynard in September, 2002. Mr. Maynard reviewed Mr. Pierce’s medical records, and became concerned about the credibility of Mr. Pierce’s version of events. Mr. Maynard did not prepare final answers to the August 20, 2002, interrogatories for Mr. Pierce’s review, or tender any discovery materials to defendants’ counsel. In the Fall of 2002, the defendants propounded numerous additional discovery requests, additional interrogatories and requests for medical records. With the exception of providing medical releases to one defense attorney, Mr. Maynard did not respond to any requests nor did he forward copies of these requests to Mr. Pierce.
During the Fall of 2002, Mr. Maynard explained to Mr. Pierce that he was disinclined to take further action on Mr. Pierce’s behalf. Mr. Maynard stated that he informed Mr. Pierce that the case would likely be dismissed for failure to respond to discovery requests, or on the grounds that Mr. Pierce had failed to exhaust his administrative remedies before filing his lawsuit. Mr. Maynard advised Mr. Pierce to seek a new lawyer, and that he would file a withdrawal from the case only after he had secured a new lawyer. Mr. Maynard said he would not take any actions to harm or to help his case.
Mr. Maynard did not explain to Mr. Pierce that an option was for Mr. Maynard to withdraw from the case, allowing Mr. Pierce to represent himself pro se until he secured new counsel. The practical effect of a withdrawal and pro se appearance by Mr. Pierce would have been the defendants and the federal district court would have forwarded pleadings and other mail directly to Mr. Pierce.
On December 5, 2002, several defendants filed a motion to dismiss Mr. Pierce’s lawsuit on grounds that Mr. Pierce had failed to exhaust his administrative remedies. Mr. Maynard did not respond to these motions, nor did he forward copies of the motions to dismiss to Mr. Pierce or otherwise communicate with Mr. Pierce about them. Additional pleadings were filed that were not forwarded to Mr. Pierce, nor answered. On May 14, 2003, Honorable Steven J. McAuliffe dismissed the lawsuit, without prejudice, for failure to exhaust administrative remedies. A copy of Judge McAuliffe’s May 14, 2003, orders were not forwarded to Mr. Pierce, and he was not informed about them.
Mr. Pierce learned from Mr. Maynard that his case had been dismissed on July 2, 2003. Mr. Pierce filed a pro se request to reopen his federal lawsuit on the grounds that he never received any notice or other communication from his attorney about the discovery deadlines or motions to dismiss. By Order dated October 7, 2003, Judge McAuliffe denied Mr. Pierce’s request, but noted that the plaintiff remains free to exhaust available remedies before pursuing claims in this court. Mr. Pierce filed a pro se notice of appeal, but neglected to take any further action, and the First Circuit Court of Appeals dismissed the appeal for lack of prosecution.
The Committee determined that the record supports factual findings by clear and convincing evidence that:
Mr. Maynard failed to communicate in that he did not timely communicate with Mr. Pierce about the existence of various discovery requests and motions to dismiss; he did not timely communicate with Mr. Pierce about the dismissal of his case; and he did not inform Mr. Pierce that he could withdraw from the case. In so doing, Mr. Maynard failed to keep Mr. Pierce reasonably informed about the status of his case and also failed to explain to Mr. Pierce the legal and practical aspects of Mr. Pierce’s case to the extent that such explanation was reasonably necessary to permit Mr. Pierce to make informed decisions about his case.
As of the date of the Fall, 2002, meeting, Mr. Maynard states that he did not believe Mr. Pierce’s version of events and was not comfortable forwarding to the defendants Mr. Pierce’s answers to interrogatories and other discovery (including Mr. Pierce’s medical records) out of concern that, if he assisted Mr. Pierce in this manner, Mr. Maynard would be committing a fraud on the Court.
Further, as of the date of the Fall, 2002, meeting, Mr. Maynard states that he explained to Mr. Pierce that he would not take further action on Mr. Pierce’s case and the case would likely be dismissed on that basis or on grounds of Mr. Pierce’s failure to exhaust administrative remedies. As of that date, Mr. Maynard was also aware that he had not yet responded to legally proper defense requests for discovery, including requests for Mr. Pierce’s answers to interrogatories.
Because at the time of the Fall, 2002, meeting, Mr. Maynard’s continued representation of Mr. Pierce would result in a violation of the rules of professional conduct (i.e., Rule 3.4(d)), Mr. Maynard was required to withdraw from representation at that time.
The Committee upon consideration and review of the Stipulation, determined that the record supports the following rulings of law by clear and convincing evidence: NH Rules of Professional Conduct 1.4(a), 1.4(b), 1.4(c), 1.16(a)(1) and 8.4(a).
Mr. Maynard was issued a six month suspension, stayed for two years, contingent on compliance with the terms and conditions of the stipulated agreement, including payment of all costs incurred in the investigation and prosecution of this matter. The matter is public record, and available for inspection at the New Hampshire Supreme Court Attorney Discipline Office, 4 Park Street, Suite 304, Concord, New Hampshire, 03301.
December 19, 2006
Notice of Michael J. Keily’s Application for Reinstatement to the New Hampshire Bar
The New Hampshire Supreme Court Professional Conduct Committee is considering MICHAEL J. KIELY’s application for reinstatement to the New Hampshire Bar. Mr. Kiely was suspended October 5, 2004 (retroactive to March 5, 2002). Anyone who wishes to comment on his application may do so in writing within twenty (20) days of the publication of this notice by sending said comments to:
Landya B. McCafferty, Disciplinary Counsel
New Hampshire Supreme Court
Attorney Discipline Office
4 Park Street, Suite 304
Concord, New Hampshire 03301