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Bar News - June 12, 2009


NH Supreme Court Professional Conduct Committee

Christy, Robert advs. Attorney Discipline Office # 08-017

PUBLIC CENSURE SUMMARY

The New Hampshire Supreme Court Professional Conduct Committee deliberated the above-captioned matter and issued a Public Censure on April 8, 2009.

Robert Christy and Thomas J. Tessier were principals in the same law office for over 40 years. In or about August 1987, Frederick A. Jakobiec, M.D., retained Mr. Tessier to draft a will for him. On or about May 14, 2001, Dr. Jakobiec asked Mr. Tessier to handle his motherís probate administration. From June 2002 through 2005, Mr. Tessier utilized his position as Administrator of the Estate to defraud the Court, the Estate, and the two beneficiaries of the Estate, Dr. Jakobiec and his brother, Thaddeus. Mr. Tessierís fraud included the creation of false affidavits and powers of attorney. Mr. Tessier utilized these false documents to gain unauthorized access to Estate accounts and assets belonging to Dr. Jakobiec and his brother. Mr. Christy was unaware of Mr. Tessierís intent and actions.

The Committee accepted the Stipulation as to the facts, which established those facts by clear and convincing evidence that:
  • On June 24, 2002, Mr. Christy bore false witness to the signature and state of mind of Thaddeus Jakobiec on a "Durable Power of Attorney for Health Care." This document is hereinafter referred to as "POA1." Mr. Christy did not witness Thaddeus Jakobiec sign POA1. The signature on POA1, purporting to be Thaddeus Jakobiecís signature, was a forgery undertaken by Mr. Tessier.
  • On March 18, 2003, Mr. Christy falsely notarized a document entitled "General Durable Power of Attorney (RSA 506:6)." This document is hereinafter referred to as "POA3." Before having engaged in the false notarization, Mr. Christy was persuaded by Mr. Tessier that there was urgency involved in the creation of POA3. Mr. Christy did not witness Dr. Jakobiec sign POA3.
  • On May 17, 2005, Mr. Christy falsely notarized another of Mr. Tessierís fraudulent powers of attorney. The document purported to grant Mr. Tessier authority to act for Thaddeus Jakobiec in regard to the sale real property. This document is hereinafter referred to as "POA4." Mr. Christy notarized Thaddeusís signature on POA4. Mr. Christy was unaware of the forgery, but Mr. Christy was aware at the time that he placed his signature and notary seal on POA4 that he was making a false statement: he had not witnessed Thaddeus Jakobiecís signature on POA4.
The Committee also accepted the Stipulation as to the Rules of Professional Conduct that were violated: 8.4(c); and 8.4(a), by clear and convincing evidence.
  • In each of the three instances of deceit listed above, the three written representations, as witness and/or notary, were false.
  • In each instance, Mr. Christy made a false notarial act.
  • Mr. Christyís conduct as detailed above constitutes clear and convincing evidence of misrepresentation, a violation of N.H. R. Prof. Conduct 8.4(c).
Mr. Christy was issued a public censure, and was assessed 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.

May 8, 2009


Maynard, Steven L. advs. Paul R. DeLuca #07-062

SIX MONTH SUSPENSION Ė STAYED FOR ONE YEAR SUMMARY


The New Hampshire Supreme Court Professional Conduct Committee deliberated the above-captioned matter and on March 17, 2009, issued a Six Month Suspension Ė Stayed for One Year.

Paul R. DeLuca retained Steven L. Maynard to represent him on two criminal cases pending in Rockingham and Hillsborough counties. Mr. DeLuca previously hired Mr. Maynard in other matters. At the inception of the representation on these matters, in April 2005, Mr. Maynard was retained upon Mr. Maynardís oral representation that the case would be "expensive" and would likely cost between $15,000.00 and $20,000.00. Mr. Maynard did not make clear whether he would be charging an hourly rate, or a flat fee. Rather, Mr. Maynard simply gave his client a range within which he expected the ultimate fee would fall. Mr. Maynardís intake information in his clientís file indicated that he would be charging on an hourly basis. Other than the April 13, 2005, letter, Mr. Maynard did not reduce any agreement concerning fees to writing until sending Mr. DeLuca a letter dated April 24, 2007. From April 2005, through May 2006, Mr. Maynard made periodic requests to his client to replenish his retainer; and the client complied with those requests.

The Committee accepted a Stipulation of Facts, which established those facts by clear and convincing evidence. The Committee also accepted the Stipulation as to the N.H. Rules of Professional Conduct that were violated: Rule 1.4(a): Client Communication; and Rule 8.4(a): Misconduct, which established those violations by clear and convincing evidence.
  • Mr. Maynard owed his client an obligation to keep him reasonably informed about the status of his case, including the method and manner in which he accounted for his time and charged a fee.
  • Mr. Maynard should have kept contemporaneous time records of his legal work on the case in order to respond to inquiries from the client about the status of his bill.
  • Mr. Maynard did not keep contemporary time records of his work on the matters.
  • Mr. Maynard placed his clientís retainer funds into the firmís trust account, but when he removed funds from the trust account as "earned" fees, Mr. Maynard did so without written disclosure to the client about the amount withdrawn and the basis of the withdrawal.
  • Mr. Maynard removed his clientís money from the firmís trust account on an estimated basis as to how many hours he had worked on the matter during the relevant time-frame.
  • Mr. Maynardís conduct as described above constitutes a failure to keep his client reasonably informed of the status of his fees.
Mr. Maynard was issued a Six Month Suspension Ė Stayed for One Year and has stipulated to pay all costs associated with the investigation and prosecution of this matter, among other conditions. 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.

May 8, 2009



Werme, Paula J. advs. Attorney Discipline Office # 07-017

SIX MONTH SUSPENSION Ė STAYED FOR TWO YEARS SUMMARY


The New Hampshire Supreme Court Professional Conduct Committee deliberated the above-captioned matter and, On March 26, 2009, issued a suspension for a period of six (6) months, however, this suspension is stayed for a period of two (2) years.

On February 10, 2005, by order of Milford District Court (Crocker, J.), E.S., a minor, was removed from the physical care of her mother due to an emergency situation. On or about September 9, 2005, Paula Werme, Esquire, filed an Appearance on behalf of the father. On October 6, 2005, the Court held, in relevant part:

ÖThe Court hereby orders that neither [the father], members of his family, or his attorney are to have any unauthorized contact with [E.S.]Ö

The Committee accepted the Stipulation as to the facts, which established those facts by clear and convincing evidence that:
  • On or about September 14, 2005, DCYF requested a "no contact" Order between E.S. and the father.
  • Ms. Werme objected to the requested "no contact" Order.
  • While a guardianship hearing was pending, Ms. Werme wrote a letter dated January 25, 2007, to E.S.
  • Ms. Werme did not seek the approval of the Court, DCYF, or CASA prior to sending the January 25, 2007, letter to E.S.
  • At the time that E.S. received Ms. Wermeí January 25, 2007, letter, the October 6, 2005, "no contact" Order was still in effect.
The Committee also accepted the Stipulation as to the Rules of Professional Conduct that were violated: 3.4(c); and 8.4(a), by clear and convincing evidence.
  • By forwarding to E.S. the January 25, 2007 letter, Ms. Werme knowingly violated the Courtís October 6, 2005 "no contact" Order.
  • Ms. Wermeís conduct in this regard constitutes clear and convincing evidence of a violation of N.H. R. Prof. Conduct 3.4(c).
Ms. Werme was issued a suspension for a period of six (6) months, however, this suspension is stayed for a period of two (2) years, and she was assessed 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.

May 8, 2009


Kasmar, Stephen R. advs. Attorney Discipline Office #07-037

SIX MONTH SUSPENSION SUMMARY

The New Hampshire Supreme Court Professional Conduct Committee deliberated the above-captioned matter and on April 15, 2009, issued a Six Month Suspension.

On June 8, 2007, a final pre-trial conference was scheduled to be held before the Hillsborough County Superior Court North (Abramson, J.). At approximately 10:00 a.m. on June 8, 2007, Mr. Kasmar learned that the Court had granted the Stateís Motion to Continue the final pre-trial conference. Mr. Kasmar was unaware whether his client had been present in the courthouse earlier that day. As Judge Abramson was taking the bench, a colloquy began as follows:

THE CLERK: Your Honor, this is the matter of the State versus Mildred Stanley. Appearing for the State is Nicole Fortune and for the defense is Stephen Kasmar and Pamela Phelan. Is Ms. Stanley here?

MR. KASMAR: I released her upon the announcement that the case was continued.

THE CLERK: Well, then why Ė

THE COURT: Well, you asked me for a hearing on it, so thatís why Iím setting it up for a hearing.

MR. KASMAR: Well, your Honor, these are actually matters that can be handled by the attorneys at this point.

THE COURT: All right. If you waive her presence, thatís fine.

MR. KASMAR: Absolutely, your Honor.

At all times relevant to this proceeding, Mr. Kasmar was aware that his client was subject to bail conditions, which conditions were designed, inter alia, to help assure his clientís presence at her criminal trial.

The Committee accepted a Stipulation of Facts, which established those facts by clear and convincing evidence. The Committee found that the following N.H. Rules of Professional Conduct were violated: Rule 3.3(a)(1): False Statements to a Tribunal; Rule 4.1(a): Truthfulness in Statements to Others; Rule 8.4(c): Deceit and Dishonesty; and Rule 8.4(a): Misconduct, by clear and convincing evidence.
  • Mr. Kasmar made a misrepresentation to the court and opposing counsel.
  • Mr. Kasmar failed to correct the misrepresentation.
  • Mr. Kasmar acted intentionally and knowingly in making this statement to the court and opposing counsel.
Mr. Kasmar was issued a Six Month Suspension, retroactive to March 1, 2009, and ordered to pay 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.

May 18, 2009


Notaris, Mary advs. Attorney Discipline Office #07-059

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.

Mary Notaris, Esquire, represented an unmarried couple from January 2003 through November 2006. Services included preparing power of attorney and estate planning documents, which named each other as guardian of the children. The coupleís relationship ended in June, 2005. In August 2005, Ms. Notaris filed guardianship petitions and her appearance on the coupleís behalf. On August 5, 2005, the couple signed a draft settlement agreement. A hearing was held on November 1, 2005 on the guardianship petitions. The first party had no understanding or awareness that, had she objected to the guardianship, the second party would have had a very high burden to overcome in order to acquire guardianship rights. Both parties would testify that Ms. Notaris had not explained to either of them that, because the first party was the biological parent and had priority under the law. As a result of a subsequent dispute regarding custody of the children, the couple sought separate legal counsel. On November 16, 2006, Ms. Notaris filed a withdrawal. It was only after the first party consulted with her new counsel, and later, a second attorney, that she understood her superior rights as the biological parent of the children under the guardianship statute. In April of 2007, the first party filed a motion to terminate the guardianship on grounds that, inter alia, Ms. Notaris, was operating under a conflict of interest at the time she advised her with respect to the guardianship petitions.

The Committee accepted a Stipulation of Facts, which established those facts by clear and convincing evidence. The Committee also accepted a Stipulation to the Rules of Professional Conduct that were violated: Rule 1.7(b): Conflict of Interest; and Rule 8.4(a): Misconduct, by clear and convincing evidence.
  • Pursuant to Rule 1.7(b), Ms. Notaris has an obligation to provide conflict-free legal advice to her clients. In this case, Ms. Notaris violated that obligation.
  • Ms. Notaris did not advise either party about the potential negative consequences of the joint representation and, given the difference in their rights under the guardianship statute, Ms. Notaris could not reasonably have believed that her representation of one client would not be materially limited by her representation of the other. Moreover, Ms. Notaris did not obtain the knowing consent of either party.
  • Ms. Notarisís representation of both parties under these circumstances constitutes an unwaiveable conflict of interest.
Ms. Notaris was issued a Public Censure, by agreement, and ordered to pay 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 4, 2009


Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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