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Bar News - July 19, 2013


Professional Conduct Committee

Barrett, Timothy J.A. advs. Attorney Discipline Office #12-028

PUBLIC CENSURE SUMMARY

On May 1, 2013, the Professional Conduct Committee (“the Committee”) issued a Public Censure to Timothy J.A. Barrett, for violations of New Hampshire Rules of Professional Conduct 1.3, 1.4, 1.16(d) and 8.1, by clear and convincing evidence.

Mr. Barrett accepted a retainer to represent the Respondent in Conway Family Court. They were scheduled to meet on June 12, 2012 in preparation for a court hearing on June 18, 2012. Mr. Barrett did not appear for the meeting,did not attend the hearing, and did notinform his client that he was unable to do so at any time. The Respondent requested her retainer be returned within seven days, and did not hear from Mr. Barrett until June 26, 2012, at which time he informed her that he was closing his practice and enclosed the full amount of her retainer. Although Mr. Barrett stated that he had turned the file over to “your paralegal at Legal Eagles,” that was not the case.

After many unsuccessful attempts to correspond with Mr. Barrett, Disciplinary Counsel determined that he is living in Georgia, an independent state which was part of the former Soviet Union in the Caucasus Mountains. Although Mr. Barrett was apprised of the proceedings, he did not participate in the process. Pursuant to Sup. Ct. R. 37A(III)(b)(3)(A), the allegations alleged in the Notice of Charges were deemed to be admitted.

Mr. Barrett was found to have violated N.H. R. Prof. Conduct 1.3 by failing to undertake any work on Ms. Martin’s matter, by failing to appear at his scheduled June 12, 2012, failing to meet with her, and by failing to appear at the heating in family court scheduled for June 18, 2012.Rule 1.4 was violated because Mr. Barrett failed to respond to Ms. Martin’s email and many phone calls following the June 18 hearing. Rule 1.16(d) was violated by failing to give Ms. Martin any notice of his intent to withdraw in advance of the June 18, 2012, hearing, thus leaving her without representation at that hearing. Rule 1.16(d) was also breached by failing to return the Respondent’s file. Mr. Barrett violated Rule 8.1 by breaching his duty to cooperate with the Attorney Discipline Office by failing to respond to its lawful requests for information.

The Committee issued a Public Censure, and reimbursement of all costs associated with the investigation and prosecution of this matter. A complete Order is available at www.nhattyreg.org and at the Attorney Discipline Office at 4 Chenell Drive, Suite 102, Concord, NH 03301.

June 11, 2013


Clauson, K. William advs. Attorney Discipline Office #09-038

SIX MONTH SUSPENSION ON REMAND SUMMARY

On July 2, 2011, the Professional Conduct Committee (“the Committee”) issued an order suspending K. William Clauson from the practice of law for six months based on findings that he violated New Hampshire Rules of Professional Conduct (“Rules”) 1.1(Competence); 1.7(a)(2) (Concurrent Conflict of Interest); 1.9(a) (Duties to a Former Client); and 8.4(a) (General Rule). Mr. Clauson appealed to the New Hampshire Supreme Court. The Court affirmed in part, reversed in part, vacated in part, and remanded. The Court found that Mr. Clauson violated only Rules 1.7(a)(2) and 8.4(a) by clear and convincing evidence. Based on the conclusion that there were only two violations, the Supreme Court was not confident that the sanction would have been the same, had the Committee recognized the extent of the violations. The Supreme Court asked the Committee to reconsider the appropriate sanction in light of its findings. See, In re Clauson’s Case, 164 NH 173 (2012).

The Committee issued an order on February 14, 2013, and voted to impose the same sanction of a six month suspension. The sanction is in compliance with the findings and decision of the Supreme Court. Mr. Clauson appealed and on June 27, 2013,the Supreme Court declined to accept the appeal In the Matter of K. William Clauson LD-2013-0005. The Committee issued an order of suspension effective August 9, 2013.

Although the number of violations were reduced, the most serious violation remains a conflict of interest. A concurrent conflict of interest arose when Mr. Clauson undertook to represent both the alleged victim (the wife) in a domestic simple assault case, and her husband, the defendant, in the same case. At a bail hearing and arraignment in the Lebanon District Court, Mr. Clauson represented both husband and wife. Although the Presiding Justice expressed his concerns as to a potential conflict, Mr. Clauson continued his representation of the two and failed to recognize that a “potential” for a conflict is embodied in Rule 1.7(a)(2) which requires an attorney to consider whether “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client...”

When determining the sanction, the focus is not on punishing the offender, but on protecting the public, maintaining public confidence in the bar, preserving the integrity of the legal profession, and preventing similar conduct in the future. Each case is considered on its own facts and circumstances in deciding the sanction.

In this case, Mr. Clauson breached his duty of loyalty to his clients. He deprived his clients of candid and independent advice and placed each at risk of harm due to his conflicted loyalties. The Supreme Court recognized that the circumstances of this case show the primary risk arising from a concurrent conflict of interest under Rule 1.7(a)(2)is divided loyalties that might inhibit the lawyer’s range of options in advising a client.

The risk of a conflict should have been evident to Mr. Clauson, especially in the context of a domestic violence assault case. He exhibited an indifference to the risks associated with representing both the defendant and the alleged victim even after the Court expressed a concern about a risk of a conflict at the bail/arraignment hearing in the Lebanon District Court.

The Committee also considered the injury or potential injury associated with the misconduct. Injury is defined as harm to a client, the public or the profession from a lawyer’s misconduct. Potential injury involves the same harm that is reasonably foreseeable at the time of the misconduct, which would probably result from the lawyer’s misconduct. The potential for harm should have been apparent to Mr. Clauson in the highly charged circumstances involved in domestic disputes.

The Committee considered both mitigating and aggravating factors to determine the appropriate sanction.No mitigating factors existed, but the Committee found several aggravating factors including Mr. Clauson’s discipline record spanning three decades, including his prior public censure for a conflict violation in 2007, three reprimands (1981, 1987 and 1996), his substantial legal experience, and his repeated refusal to acknowledge the wrongful nature of his misconduct. Upon an examination of the various factors, the Committee concluded that the appropriate sanction is a suspension even though the number of violations have been reduced.

The Committee issued a sixmonth suspension, effective August 9, 2013, andreimbursement of all costs associated with the investigation and prosecution of this matter. A complete Order is available at www.nhattyreg.org and at the Attorney Discipline Office at 4 Chenell Drive, Suite 102, Concord, NH 03301. In accordance with Rule 37(14)(f), Mr. Clauson may file a Motion for Reinstatement with the Court after February 9, 2014, if he is in compliance with the applicable orders and Rules.

July 9, 2013

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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