Nardi's Case

705 A.2d 1199, 142 N.H. 602, 1998 N.H. LEXIS 7
CourtSupreme Court of New Hampshire
DecidedFebruary 24, 1998
DocketNo. LD-96-011
StatusPublished
Cited by10 cases

This text of 705 A.2d 1199 (Nardi'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
Nardi's Case, 705 A.2d 1199, 142 N.H. 602, 1998 N.H. LEXIS 7 (N.H. 1998).

Opinion

BRODERICK, J.

The Supreme Court Committee on Professional Conduct (committee) filed a petition seeking disbarment of the respondent, Vincent J. Nardi, II. See SUP. CT. R. 37(13)(a:)V The Judicial Referee (Temple, J.) found by clear and convincing evidence that the respondent violated Rules of Professional Conduct (Rules) 1.15(a)(1), 1.15(c), 4.1(a), 8.4(a), and 8.4(c), and recommended suspénsion as a sanction. The respondent does not challenge either [605]*605the referee’s rulings that he committed numerous ethical violations or the findings of fact which support those rulings, but urges a brief period of suspension. The committee recommends disbarment. We order the respondent disbarred.

The ethical violations at issue arose from two separate transactions. In the first transaction, the respondent represented Alternate Development Group, Inc. (ADG), a real estate development company. In July 1993, ADG executed a purchase and sale agreement with John and Sharlene Turlis for the sale of a residence at Mammoth Hallow Condominiums in Manchester. The agreement required the respondent, as seller’s attorney, to hold the Turlises’ $1,750 deposit in escrow. Sharlene Turlis, in fulfillment of her obligation, executed two checks payable to the respondent. Upon receipt and without permission, the respondent endorsed the checks and promptly gave them to Robert Stewart, an incorporator and director of ADG, for payment of unspecified project costs. Ultimately, the Turlis sale was not completed and they sought the return of their deposit. When neither the respondent nor Stewart returned the deposit, Pattu Kesavan, the president and director of ADG, satisfied the obligation from personal funds. While the respondent asserted that ADG routinely used escrow deposit monies on prior occasions for project costs, the referee found no evidence of this practice, nor any evidence of the purchasers’ consent or knowledge. Because the purchase and sale agreement and the Rules required the respondent to hold and safeguard the deposit, the referee found that the respondent violated Rules 1.15(a)(1) and 1.15(c).

In the second transaction, the respondent introduced his client, Kesavan, to another client, Bernard McLaughlin, a convicted felon, and the two engaged in joint business activities. Specifically, Kesavan twice loaned money to McLaughlin under promissory notes prepared and witnessed by the respondent to allow McLaughlin to purchase automobiles. When McLaughlin resold the vehicles at a profit, he discharged the loans and also paid Kesavan a portion of his gain. Without the respondent’s involvement, a third loan was made for a similar purpose in which McLaughlin borrowed $21,500 from Kesavan with the understanding that he pay back $24,500. McLaughlin paid as promised, but his check was dishonored for insufficient funds.

Subsequently, McLaughlin arranged to meet Kesavan at the respondent’s office to discuss repayment. Prior to the meeting, McLaughlin requested the respondent’s help in holding off Kesavan and represented that he would have money for repayment in a few days. The referee found that when Kesavan arrived, the respondent [606]*606“misrepresented to Kesavan where his money was and misled him as to when it would be available.” In fact, in a January 10, 1994, letter to Kesavan, the respondent expressly “apologize[d] for misleading [Kesavan] when [McLaughlin] asked that [the respondent] fabricate a story in order to buy him time with which to repay [Kesavan].” In addition, in a letter to the committee, the respondent admitted that he told Kesavan that “these funds were available” and were “in [his] possession,” believing that he would receive the funds from McLaughlin in a few days.

The referee found that the respondent’s misrepresentations to Kesavan violated Rules 4.1(a) and 8.4(c). The referee also found that the respondent violated Rule 8.4(a) by violating provisions of the Rules of Professional Conduct. The referee recommended suspension rather than disbarment “in view of the fact that there has been no showing of a prior disciplinary record.”

When determining whether to impose the ultimate sanction of disbarment, we focus 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. See Basbanes’ Case, 141 N.H. 1, 6, 676 A.2d 93, 96 (1996) (quotation omitted); Jones’ Case, 137 N.H. 351, 360, 628 A.2d 254, 259 (1993) (quotation omitted). We consider both the severity of the misconduct and the mitigating circumstances established by the record. See Henderson’s Case, 141 N.H. 805, 810-11, 694 A.2d 973, 976-77 (1997).

“[T]he privilege of practicing law does not come without the concomitant responsibility of truth, candor and honesty.” Basbanes’ Case, 141 N.H. at 7, 676 A.2d at 96 (quotation omitted). An attorney’s misuse of funds entrusted to him “demonstrates such lack of common honesty as to clearly justify an attorney’s disbarment.” Woiccak’s Case, 131 N.H. 735, 740, 561 A.2d 1049, 1052 (1989) (quotation omitted); see Connolly’s Case, 127 N.H. 786, 790, 508 A.2d 1054, 1057 (1986). In addition, because “[n]o single transgression reflects more negatively on the legal profession than a lie,” attorney misconduct involving dishonesty also justifies disbarment. Budnitz’s Case, 139 N.H. 489, 492, 658 A.2d 1197, 1199 (1995) (quotation omitted); see Astles’ Case, 134 N.H. 602, 606, 594 A.2d 167, 170 (1991).

With regard to the first transaction, the respondent’s transfer of the escrow funds to Stewart, a director of the respondent’s client corporation, not only contravened the Rules but also violated [607]*607the express escrow agreement. The respondent’s alleged prior practice of routinely giving escrow funds to ADG to offset its costs would not demonstrate his good faith in the Turlis transaction considering that, in the present case, the respondent did so without the consent or knowledge of the buyers. Admittedly, the respondent did not appropriate the escrow funds for his personal use. He did, however, knowingly violate the express terms of an escrow agreement by relinquishing control of funds expressly given to him for safekeeping. He did so without the knowledge or consent of the buyers. He possessed no right to transfer the funds as he did and in so doing violated his duties as a fiduciary.

Although the respondent explained his conduct, he could not justify it. The escrow transaction in which the respondent was involved was not complex, subtle, or uncertain. He took money belonging to a third person, entrusted to him, to which he had no legal right or interest, and gave it to another for purposes unauthorized and undefined. Ethical lawyering demands much more prudence and integrity.

With regard to the McLaughlin transaction, the respondent asserts that his statements to Kesavan concerning the location and availability of the $24,500 were not lies.

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Cite This Page — Counsel Stack

Bluebook (online)
705 A.2d 1199, 142 N.H. 602, 1998 N.H. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nardis-case-nh-1998.