Henderson's Case

694 A.2d 973, 141 N.H. 805, 1997 N.H. LEXIS 46
CourtSupreme Court of New Hampshire
DecidedMay 6, 1997
DocketNos. LD-94-001; LD-95-003; LD-95-005
StatusPublished
Cited by2 cases

This text of 694 A.2d 973 (Henderson's Case) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson's Case, 694 A.2d 973, 141 N.H. 805, 1997 N.H. LEXIS 46 (N.H. 1997).

Opinion

Horton, J.

The Supreme Court Committee on Professional Conduct (committee) petitioned this court for the disbarment of the [806]*806respondent, Lloyd N. Henderson. The Judicial Referee (Contas, J.) assigned to conduct a hearing on the petition found by clear and convincing evidence that the respondent had violated Rules of Professional Conduct (Rules) 8.4(a) and 8.4(c). The referee made no recommendation on the committee’s request for the respondent’s disbarment. We affirm the referee’s findings and order disbarment.

The respondent was admitted to the New Hampshire bar in 1973. Between January 1985 and May 1993, the committee issued six private letters of reprimand to the respondent. Specifically, the committee reprimanded the respondent on the merits of matters, for failure to cooperate with the committee, for failure to respond to the requests of the committee, and for knowing failure to promptly respond to lawful demands from a disciplinary authority. This court suspended him from the practice of law for three months in March 1988 for neglect of a client’s interests. See Henderson’s Case, 130 N.H. 313, 316, 538 A.2d 1222, 1224 (1988).

Following the committee’s initiation of a petition for public censure against the respondent in September 1993, this court by order concluded that the respondent’s answer admitted sufficient facts to find violations of Rules 8.1(b) and 8.4(a). In response the respondent entered into a stipulation in which he acknowledged his misconduct and agreed to submit to censure if this court adopted the stipulation.

In December 1993, a panel of the committee held a hearing on a complaint that the respondent had failed to record a deed in a timely and effective manner. The hearing panel found, by clear and convincing evidence, that the respondent had violated numerous provisions of the Rules of Professional Conduct; consequently, in early 1994, the committee initiated a petition against respondent for a one-year suspension from the practice of law. A referee heard the evidence and rendered a decision on the merits recommending the suspension.

In February 1995, the committee filed a separate petition for the respondent’s disbarment. By order dated June 12, 1995, this court suspended the respondent for an indefinite period of time and deferred consideration of discipline in the public censure and one-year suspension petitions pending resolution of the present disbarment petition.

Following hearing on the disbarment petition, the referee found, by clear and convincing evidence, the following facts. On August 3, 1992, at approximately 5:45 a.m., the respondent telephoned the home of Robert J. Bagloe and his wife, Pamela, with whom he was acquainted. The respondent told Robert Bagloe he was seeking to [807]*807borrow $3,000 immediately and he needed to be somewhere in a hurry or he would be jailed. The respondent needed the money due to a court order that he make payment pursuant to a settlement agreement or serve thirty days in the Hillsborough County House of Correction for contempt. The Bagloes told the respondent they would lend him the money and to come to their home. When he appeared at the Bagloe home at approximately 7:30 a.m., the respondent presented a prepared promissory note secured by an assignment of an account receivable due to his law office in the amount of $3,200 from John S. Deming, administrator of the estate of Edith B. Deming and executor under the will of Spencer F. Deming. The note, dated August 3, 1992, stated a maturity of September 15, 1992, and provided that “failure to make said payment within 15 days after it becomes due shall result in the imposition of a late charge of 5% per month on the unpaid balance.”

Thereafter Mr. Bagloe attempted to contact the respondent regarding payment of the promissory note but received no response. Mr. Bagloe retained an attorney to make inquiries regarding the note and the Deming estates. A letter was mailed to John S. Deming, who had no knowledge of the note. In April 1993, Mr. Bagloe sent the respondent a letter requesting payment in the amount of $4,387.50, and stating he would file suit to recover the money if necessary. Mr. Bagloe eventually commenced an action against the respondent and prevailed, but the respondent filed a petition in bankruptcy prior to satisfaction of the judgment. On December 14, 1994, Mr. Bagloe sent a letter of complaint to the committee.

The referee found, based on John Deming’s testimony, that Deming knew the respondent had been hired by his father, Spencer Deming, to handle his mother’s estate. When John Deming became executor of his father’s estate, he assumed the respondent would do the necessary probate work on both estates. Deming tried for several years to contact the respondent so that the final accounts of the estates could be filed. When problems arose with the Internal Revenue Service over back taxes owed by the estates and Deming was unable to reach the respondent, he secured the services of an accountant in Massachusetts to prepare the first and final accounts.

The referee further found that the respondent failed to appear in probate court for scheduled hearings concerning the estates until threatened with contempt. The respondent never attempted to contact John Deming during the approximately four years Deming was the executor of his father’s estate. He never discussed fees with Deming, except to present him with a bill in the amount of $570 for [808]*808out-of-pocket expenses incurred for both estates on the date the final accounts were filed. The respondent never billed Deming, nor attempted to collect any money from him. The respondent was not listed as a creditor in either of the final accounts and did not list his legal fees as an expense of administration of the estates as required by RSA chapter 554.

The respondent testified that he was not acting in his capacity as an attorney when he received the money from the Bagloes and denied making any misrepresentations in connection with the loan. He alleged that he was entitled to fees from the Deming estates exceeding $3,200. He admitted assigning all accounts receivable to a lending institution prior to obtaining the loan from the Bagloes, but he testified that his records were destroyed in a fire at his home and he. never pledged the Deming account to the bank. The respondent acknowledged that he never sent a bill to Deming and did not list his fees in the first and final accounts. Although the respondent testified that he did not ask Deming for fees when the final accounts were filed because he did not want Deming to have to liquidate stocks, the referee found that the final account showed more than $14,000 in national banks.

Finally, the referee relied on the testimony of John E. Laboe, a New Hampshire attorney, who had reviewed the final accounts of the Deming estates. Laboe testified that no attorney’s fees or expenses were listed for administration of the estates, as required by RSA chapter 554.

In his report issued on September 22, 1995, the referee stated he could not

accept the claims as related by the [respondent], nor is there a distinction between misconduct of a personal nature and misconduct occurring in the course of an attorney-client relationship. Attorneys are required to conduct themselves at all times in conformity with standards imposed upon members of the bar for the right to practice law. . . .

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Bluebook (online)
694 A.2d 973, 141 N.H. 805, 1997 N.H. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendersons-case-nh-1997.