Bar News - November 15, 2013
Professional Conduct Committee
Foley, Richard N. advs.
Robin Sawyer # 11-011
SIX MONTH SUSPENSION STAYED FOR ONE YEAR WITH CONDITIONS
On August 20, 2013, the Professional Conduct Committee (the “Committee”) deliberated the matter of Foley, Richard N. advs. Robin Sawyer # 11-011 and issued a six month suspension stayed for one year with conditions on September 20, 2013.
The Committee voted to grant an Assented-To Motion to Permit Waiver of Formal Proceedings. The Committee accepted the Stipulation as to the Facts by clear and convincing evidence as summarized below:
Mr. Foley was hired to represent the complainant in a domestic relations matter in July, 2009 that concluded on August 12, 2010. There was no written fee agreement with the complainant regarding his representation in the matter; only an oral agreement to represent her at $200 per hour. At no time during the pendency of the divorce proceedings did Mr. Foley provide the complainant with an accounting of his time spent on her matter. The initial retainer check was not deposited into Mr. Foley’s client trust account.
On several occasions, the Court ordered the disbursement of funds from the escrow account to the parties. Mr. Foley did not issue the designated funds to his client. The funds for his client were placed in Mr. Foley’s client trust account for legal fees. Mr. Foley did not seek his client’s authorization to retain the funds.
Mr. Foley told his client that his fees for an appeal would be a flat fee and not hours-based. He never communicated to his client the actual amount of the flat fee.
For the period of June 1, 2007 through May 31, 2012, Mr. Foley did not perform monthly reconciliations of any of his client trust accounts in accordance with Sup. Ct. R. 50. The Annual Trust Accounting Compliance Certificates filed for June 1, 2009throughMay 31, 2011 falsely certified that the client trust accounts were maintained and recorded in accordance with Rule 50 and Rule 1.15.
The Committee voted to accept the Stipulation as to the following violations of the Rules of Professional Conduct, by clear and convincing evidence: Rule 1.4: Client Communication; Rule 1.15(a), (b), (d), and (f): Safekeeping Property and Sup. Ct. R. 50.
Mr. Foley breached his duty of client communication by:
Mr. Foley breached his duty of safekeeping property by:
- Failing to discuss with his client in sufficient detail the financial terms under which he agreed to serve as her counsel, including requirements for making payments and maintaining a retainer account;
- Receiving funds from Court-authorized distributions from the escrow account that belonged to his client without promptly notifying his client and tendering all of such funds to her;
- Failing to obtain his client’s authority to take all or portions of distributions from the escrow account for legal fees; and
- Failing to communicate the fee that he charged for the appeal.
Mr. Foley was issued a six month suspension stayed for one year with conditions, and assessed all costs associated with the investigation and prosecution of this matter. The matter is public record, and available at www.nhattyreg.org or at the NH Supreme Court Attorney Discipline Office, 4 Chenell Drive, Suite 102, Concord, NH 03301.
- Co-mingling funds belonging to his client with Mr. Foley’s property;
- Failing to maintain records of the handling, maintenance, and disposition of all of his client’s funds in accordance with Supreme Court Rules, including failing to account for funds belonging to Ms. Sawyer and to perform monthly reconciliations relative to funds for his client;
- Withdrawing fees and expenses paid in advance by his client before Mr. Foley earned the fees or incurred the expenses; and
- Receiving funds from Court-authorized distributions from the escrow account that belonged to his client without properly notifying her and tendering all of such funds to her.
October 21, 2013
In the Matter of Scott A. Wanner
PUBLIC CENSURE SUMMARY
In accordance with Supreme Court Rule 37(12), on September 27, 2013, the New Hampshire Supreme Court ruled that the above captioned reciprocal discipline matter from the State of Maine Grievance Commission, Board of Overseers warrants the issuance of a public censure. The Court remanded the matter to the Professional Conduct Committee (the “Committee”) for the issuance of a public censure.
Scott A. Wanner, Esquire, of Portsmouth, New Hampshire was admitted to the Maine Bar in 2002. He was admitted to the New Hampshire Bar in 2006. Mr. Wanner was hired as an associate in January 2007 by Nadeau Legal, PLLC. One month later, he had an encounter with a woman who was Attorney Nadeau’s on-again-off-again fiancé and who was also an on-again-off-again employee of the firm. Mr. Wanner left the firm in October 2007 without disclosing his encounter to Mr. Nadeau.
The Grievance Commission panel (the “panel”) found that after Mr. Wanner had the encounter, he established an attorney-client relationship with Mr. Nadeau when he was asked to gather evidence in connection with Mr. Nadeau’s defense of a protection from abuse complaint filed against him by the woman. Mr. Wanner also assisted as a witness at the hearing. The case settled after only brief testimony from him.
The panel found that Mr. Wanner had an obligation to disclose to Mr. Nadeau that he had a personal relationship with the Petitioner which might give rise to a conflict of interest; or, in the alternative, Mr. Wanner should have refused to become involved in the case if he chose not to disclose this information to Mr. Nadeau. Mr. Wanner’s failure to do either violated Maine Bar Rule 3.4(a)(1), 3.4(b)(1) and 3.4(f)(1).
Maine Bar Rules require that the client be informed of any and all conflicts, whenever they arise. The duty is on the lawyer to exercise punctilious care when complying with rules regarding disclosure. The panel does not believe that Mr. Wanner acted with malice, but in attempting to prevent personal embarrassment or awkwardness, he deprived his client of information he was duty-bound to reveal. The panel issued a Public Reprimand on June 14, 2013.
The Committee recommended to the Court that for purposes of reciprocal discipline, a sanction of public censure is equivalent to the discipline imposed by the State of Maine Grievance Commission, Board of Overseers. The Court concluded that a public censure is warranted. The Committee hereby issues a Public Censure.
Mr. Wanner shall be responsible for the expenses incurred by the Committee in the investigation and enforcement of this matter. See Sup. Ct. R. 37(19)(b).
The full order is available for public inspection at our website, www.nhattyreg.org, or at the Attorney Discipline Office, 4 Chenell Drive, Suite 102, Concord, NH.
November 7, 2013