Richmond's Case

872 A.2d 1023, 152 N.H. 155, 2005 N.H. LEXIS 69
CourtSupreme Court of New Hampshire
DecidedMay 6, 2005
DocketNo. LD-2003-001
StatusPublished
Cited by19 cases

This text of 872 A.2d 1023 (Richmond'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
Richmond's Case, 872 A.2d 1023, 152 N.H. 155, 2005 N.H. LEXIS 69 (N.H. 2005).

Opinion

Duggan, J.

On March 6, 2003, the Supreme Court Committee on Professional Conduct (committee) filed a petition with this court requesting that the respondent, William M. Richmond, receive a six-month suspension from the practice of law. We referred the petition to a Judicial Referee (Temple, J.) for a hearing. The referee found by clear and convincing evidence that Richmond violated New Hampshire Rules of Professional Conduct 1.1(a), 1.1(b)(1), 1.1(b)(5), 1.7(a), 1.7(b), 1.8(a), 7.1(a) and 8.4(a), and recommended suspension for six months and assessment of costs. We adopt the referee’s recommended sanction.

[156]*156The record reflects the following facts. Richmond was admitted to the practice of law in New Hampshire in May 1996. This professional conduct matter arose from Richmond’s representation of Seaton Gras and his later involvement with Gras in the formation of an Internet start-up company, Environmental Showcase, Limited (ESL). Richmond first represented Gras in 1997 in an action against Gras’ former employer to collect his judgment on a wage claim. During the prior year, Gras had been terminated from his position at Global Environmental Solutions (GES), a company he formed along with three other co-venturers in 1994. Richmond collected approximately $6,000 of the $36,000 owed to Gras.

Two years later, in April 1999, Richmond represented Gras and Graham Bunce, a co-venturer in GES, in an involuntary bankruptcy action against GES. Richmond testified that he discussed the potential conflict of interest created by his joint representation of Gras and Bunce and they orally waived the conflict. Richmond, however, did not obtain a written waiver of the conflict from either client.

While representing Gras and Bunce on their bankruptcy claim, Richmond also represented Bunce in a lawsuit brought against him by Stephen Barnes, another GES co-venturer, on an unpaid promissory note. In November 1999, Bunce, without Richmond’s assistance, agreed to settle the matter with Barnes. The settlement agreement required Bunce to withdraw from the bankruptcy petition against GES and cease assisting Gras in that litigation. Although Richmond did not aid Bunce in the settlement negotiations, he reviewed the settlement agreement and gave Bunce his approval, even though the settlement terms were adverse to Gras. Shortly thereafter, Richmond filed a motion for leave to withdraw from representing Gras in the bankruptcy action. The bankruptcy court permitted Richmond’s withdrawal over Gras’ objection.

During the same period of time in 1999, Gras and Richmond formed ESL based upon an idea that Gras developed to provide a web portal to the environmental industry. Gras was the majority shareholder and chief executive officer of ESL, while Richmond was a member of the board of directors and the Chief Operating Officer (COO). Acting as COO and corporate counsel, Richmond filed ESL’s articles of incorporation, drafted corporate by-laws and advised ESL on securities matters. Over the course of his involvement with ESL, Richmond never disclosed the potential conflict of interest stemming from his roles as COO, corporate counsel, board member and shareholder. Richmond failed to obtain the board members’ written consent to serve as corporate counsel and did not advise [157]*157the board to seek the advice of independent counsel regarding the potential conflicts.

In August 1999, on ESL’s behalf, Richmond filed a form U-7 disclosure document with the New Hampshire Bureau of Securities Regulation (Bureau) in order to conduct a sale of up to one million dollars of common stock. The web site for Richmond’s law firm suggested that he had experience in helping small businesses file direct public offerings, although Richmond had only drafted offerings that had never been filed. The Bureau completed an initial review of the form U-7 and commented on at least eighty-four items that required correction or additional disclosure. After further discussions with the Bureau, Richmond later withdrew the form U-7 on ESL’s behalf. The Bureau conducted an investigation that resulted in a consent order in which Richmond, Gras and ESL admitted violating State securities laws by selling unregistered securities and selling securities without a license. See RSA 421-B:6 (Supp. 2004); RSA 421-B:11 (Supp. 2004). ESL agreed to pay a $7,500 administrative fine and Richmond and Gras were ordered to cease and desist from further violations of the securities laws.

Based upon these facts, the referee found that Richmond violated Rules of Professional Conduct 1.7(a) and (b) in representing Gras and Bunce without adequately identifying the conflicts of interest and obtaining both clients’ consent to the representation despite the conflicts. The referee also found that Richmond violated Rules 1.7(a) and (b), 1.8(a) and 8.4(a) by forming and operating ESL while serving as corporate counsel without disclosing the potential conflict of interest and obtaining a written waiver. Finally, the referee found that Richmond violated Rules 1.1(a) and (b), 7.1(a) and 8.4(a) by issuing unregistered securities, inadequately preparing the form U-7 and misrepresenting his firm’s legal services. The referee recommended that Richmond receive a six-month suspension from the practice of law and assessment of all expenses incurred by the committee.

Richmond argues that the referee applied an improper standard in evaluating his competence in securities law and in determining that his web site advertisement was false and misleading. See N.H. R. PROF. Conduct 1.1, 7.1. Although Richmond does not dispute the referee’s findings of conflict of interest violations, he argues that we should impose a lesser sanction than the referee recommended based upon the severity of the offenses and the presence of several mitigating factors. The committee argues that we should adopt the referee’s findings and recommended sanctions.

[158]*158In professional conduct matters, we defer to the referee’s factual findings if supported by the record but retain the ultimate authority to determine whether, on the facts found, a violation of the rules governing attorney conduct has occurred and, if so, the appropriate sanction. Shillen’s Case, 149 N.H. 132, 136 (2003). We review the referee’s factual findings to determine whether a reasonable person could reach the same conclusion as the referee based upon the evidence presented. Id. However, we review de novo to determine whether the referee committed errors of law. Feld’s Case, 149 N.H. 19, 22 (2002), cert. denied, 540 U.S. 815 (2003).

We first address Richmond’s argument that the referee incorrectly applied a “specialist” or “expert” standard when evaluating his conduct under Rules 1.1(a) and (b). He argues that under the correct standard, a “general practitioner” standard, there is insufficient evidence to support a finding that he violated these rules.

Rule 1.1(a) states, “A lawyer shall provide competent representation to a client.” N.H. R. Prof. Conduct 1.1(a). Rule 1.1(b) establishes the minimum requirements for legal competence:

(1) specific knowledge about the fields of law in which the lawyer practices;
(2) performance of the techniques of practice with skill;
(3) identification of areas beyond the lawyer’s competence and bringing those areas to the client’s attention;
(4) proper preparation; and

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Bluebook (online)
872 A.2d 1023, 152 N.H. 155, 2005 N.H. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richmonds-case-nh-2005.