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Bar News - September 21, 2016


Supreme Court Orders

R-2016-003
In re August 3, 2016 Report of the Advisory Committee on Rules

The New Hampshire Supreme Court Advisory Committee on Rules (committee) has voted 8-7 to report a proposed rule amendment to the New Hampshire Supreme Court with a recommendation that it be adopted on a pilot basis. Supreme Court Justice Robert J. Lynn has reported an alternative proposed rule amendment. On or before September 20, 2016, members of the bench, bar, legislature, executive branch or public may file with the clerk of the supreme court comments on both proposed rule amendments. An original and one copy of all comments shall be filed. Comments may also be emailed to the court.

To see the language of each of the proposed rule changes and background regarding the proposals, please see the August 3, 2016 Advisory Committee on Rules Report, which is available online. Copies of the August 3, 2016 Advisory Committee on Rules Report are also available upon request to the clerk of the supreme court at the N.H. Supreme Court Building, 1 Charles Doe Drive, Concord, New Hampshire 03301 (Tel. 603-271-2646).

The current rules of the New Hampshire state courts are available on the Internet.

A summary of the proposals made in the August 3, 2016 Advisory Committee on Rules Report is set forth below.

Payment of Fines. New Hampshire Rule of Criminal Procedure 29(e).

The proposal to amend Circuit Court District Division Rule 2.7 (now New Hampshire Rule of Criminal Procedure 29(e)) was jointly submitted to the Advisory Committee on Rules by the American Civil Liberties Union of New Hampshire, Circuit Court Administrative Judge Edwin W. Kelly and Circuit Court Deputy Administrative Judge David D. King and is being recommended for adoption on a pilot basis by the majority of the members of the Advisory Committee on Rules. The proposal is designed to address concerns raised relating to the process for the use of incarceration as a means of enforcing the collection of fines. It aims to assure “that no person in New Hampshire is jailed for nonpayment of fines when the reason for nonpayment is an inability to pay.” An alternative proposal to amend Rule 29(e) was submitted by Supreme Court Justice Robert J. Lynn. The New Hampshire Supreme Court is requesting comment on both proposals.

The language of the rule change recommended by the Advisory Committee on Rules is set forth in Appendix B of the August 3, 2016 Advisory Committee on Rules Report. The language of the rule change recommended by Supreme Court Justice Robert J. Lynn is set forth in Appendix C of the August 3, 2016 Advisory Committee on Rules Report.

August 22, 2016
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire


In accordance with Rule 58.2(C), the Supreme Court appoints Sally Garhart, M.D., to the Lawyers Assistance Program (LAP) Commission, to serve the remainder of a three year term expiring March 1, 2018. Dr. Garhart is appointed to replace Nancy Kane, who has resigned from the commission due to other commitments.

Issued: August 23, 2016
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


LD-2015-0014
In the Matter of Jeremey A. Miller, Esquire

On December 10, 2015, the Professional Conduct Committee (PCC) filed a recommendation that Attorney Jeremey A. Miller be suspended from the practice of law for a period of one year and ordered to pay the costs associated with the investigation and enforcement of the disciplinary matter. The PCC’s recommendation approved a stipulation executed by Attorney Miller and the Attorney Discipline Office’s disciplinary counsel in which Attorney Miller agreed that that he had violated several Rules of Professional Conduct and further agreed that the appropriate sanction for these violations was a one-year suspension. In accordance with Supreme Court Rule 37(16), a copy of the PCC’s recommendation was served upon Attorney Miller, along with an order requiring him and disciplinary counsel to identify any legal or factual issues that they wished the court to review. Neither Attorney Miller nor disciplinary counsel identified any issues for review.

Thereafter, the court ordered the parties to brief the issue of the appropriate sanction for Attorney Miller’s misconduct. Disciplinary counsel filed a brief on the sanction issue. Attorney Miller failed to file a brief.

Based on the parties’ stipulation, the PCC found that Attorney Miller violated the following Rules of Professional Conduct:

(1) Rule of Professional Conduct 1.7, which prohibits a lawyer from representing a client if the representation may be materially limited by the lawyer’s responsibilities to another client, a third person, or the lawyer’s own interests, unless the lawyer reasonably believes that representation will not be adversely affected and the client consents after consultation and with knowledge of the consequences;

(2) Rule 1.5, which prohibits a lawyer from charging or collecting a clearly excessive fee;

(3) Rule 8.4(c), which makes it professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4) Rule 3.4(c), which prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; and

(5) Rule 8.4(a), which makes it professional misconduct to violate the Rules of Professional Conduct.

After reviewing the PCC’s recommendation, and the brief filed by disciplinary counsel, and considering the seriousness of Attorney Miller’s misconduct, the court accepts the PCC’s recommendation that Attorney Miller be suspended from the practice of law in New Hampshire for a period of one year. Accordingly, the court orders as follows:

(1) Attorney Jeremey A. Miller is suspended from the practice of law in New Hampshire for a period of one year. The suspension shall take effect on September 7, 2016, unless a motion for reconsideration is filed.

(2) Attorney Miller is ordered to reimburse the Attorney Discipline Office for all costs and expenses incurred by the attorney discipline system in the investigation and prosecution of this matter.

(3) Attorney Miller is ordered to comply with the provisions of Supreme Court Rule 37(13).

(4) Within 30 days after the effective date of the suspension, Attorney Miller shall file with the court an affidavit showing that he has fully complied with the requirements of Rule 37(13). A copy of the affidavit shall be sent to the Attorney Discipline Office.

Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.

DATE: August 25, 2016
ATTEST: Eileen Fox, Clerk


LD-2016-0014
In the Matter of Eugene A. DiMariano, Jr., Esquire

On July 19, 2016, the Professional Conduct Committee (PCC) filed a recommendation that Attorney Eugene A. DiMariano, Jr., be disbarred. The PCC’s recommendation was based on a stipulation signed by Attorney DiMariano and Disciplinary Counsel, in which Attorney DiMariano admitted that he had violated numerous Rules of Professional Conduct and conceded that disbarment was the appropriate sanction for his misconduct.

After the PCC filed its recommendation, an order was issued, in accordance with Supreme Court Rule 37(16), suspending Attorney DiMariano on an interim basis, notifying Attorney DiMariano and Disciplinary Counsel of the PCC’s recommendation, and advising them to notify the court by August 29, 2016, of any legal or factual issues relating to the PCC’s recommendation that they wished the court to review. The order stated that if neither party identified an issue to be reviewed, no further hearing on the PCC’s recommendation would be required, and the court could decide the matter based upon the record of the PCC proceedings. Although Attorney DiMariano filed a request for a hearing on the interim suspension, neither he nor Disciplinary Counsel identified any issues relating to the PCC’s recommendation that they wished the court to review. Because neither party has identified any issues related to the PCC’s recommendation to be reviewed, the court will review the recommendation based upon the record of the PCC proceedings and without further hearing.

In the “Stipulation to Disbarment” filed with the PCC, Attorney DiMariano admitted that he violated the following Rules of Professional Conduct:

1. Rule 1.1, which requires a lawyer to provide competent representation to a client;

2. Rule 1.2, which requires a lawyer to abide by a client’s decisions concerning the objectives of representation;

3. Rule 1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client;

4. Rule 1.4, which requires a lawyer to keep a client reasonably informed about the status of a matter;

5. Rule 1.15, which requires a lawyer to hold the property of clients and third persons separate from the lawyer’s property and in accordance with Supreme Court Rules 50 and 50-A;

6. Rule 3.3, which prohibits a lawyer from knowingly making false statements of fact or law to a tribunal;

7. Rule 8.1(b), which prohibits a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter;

8. Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving deceit, dishonesty, or misrepresentation; and

9. Rule 8.4(a), which prohibits a lawyer from violating the Rules of Professional Conduct.

Attorney DiMariano stipulated that an audit performed by the Attorney Discipline Office showed that he failed to maintain a client trust account from 2006 to 2010; that during this period he improperly deposited and maintained client funds in his firm’s operating account; that he commingled firm funds with client funds on numerous occasions; that he misappropriated client funds in his possession; that after opening a client trust account in 2010, he failed to comply with the requirements of Supreme Court Rules 50 and 50-A regarding trust accounts; that he issued payments from his client trust account for firm operating expenses; and that he was repeatedly out of trust during the audit period.

The court has reviewed the “Stipulation for Disbarment” and the PCC’s recommendation that Attorney DiMariano be disbarred. After considering the nature, seriousness, and extent of Attorney DiMariano’s misconduct, the court concludes that disbarment is the appropriate sanction in this case. In light of this action, Attorney DiMariano’s request for a hearing on his interim suspension is moot.

THEREFORE, the court orders that Eugene A. DiMariano, Jr., be disbarred from the practice of law in New Hampshire. He is hereby assessed all expenses incurred by the Professional Conduct Committee in the investigation and prosecution of this matter.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

DATE: August 31, 2016
ATTEST: Eileen Fox, Clerk


ADM-2015-0086
In the Matter of Michelle L. Daugherty, Esquire

On December 22, 2015, Attorney Daugherty was suspended from the practice of law in New Hampshire for failing to file her 2015 annual trust accounting certificate and failing to pay late fees assessed for late filing of her certificate. Attorney Daugherty has now filed her 2015 annual trust accounting certificate and paid the late fees assessed. She has requested that she be reinstated to the practice of law in New Hampshire.

Attorney Daugherty’s request for reinstatement is granted. Attorney Daugherty is reinstated to the practice of law in New Hampshire effective immediately.

Dalianis, C. J., Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

DATE: September 1, 2016
ATTEST: Eileen Fox, Clerk


ADM-2016-0008
In the Matter of Arthur P. Skarmeas, Esquire

On March 1, 2016, this court issued an order, in accordance with Rule 53.7(A)(2), suspending Attorney Arthur P. Skarmeas from the practice of law in New Hampshire for failing to file his certificate of compliance with the minimum continuing legal education requirements for the reporting year ending June 30, 2015, and for failing to pay the delinquency fees assessed.

The Minimum Continuing Legal Education Board has advised the court that Attorney Skarmeas has now complied with the minimum continuing legal education requirements for the reporting year ending June 30, 2015, and that he has paid the delinquency fees assessed. It has filed a motion requesting that Attorney Skarmeas be reinstated to the practice of law in New Hampshire.

The motion to reinstate Attorney Skarmeas to the practice of law is granted. Attorney Skarmeas is hereby reinstated to the practice of law in New Hampshire.

Dalianis, C. J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

ISSUED: September 1, 2016
ATTEST: Eileen Fox, Clerk

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