Wolterbeek's Case

886 A.2d 990, 152 N.H. 710, 2005 N.H. LEXIS 162
CourtSupreme Court of New Hampshire
DecidedOctober 31, 2005
DocketNo. LD-2005-002
StatusPublished
Cited by14 cases

This text of 886 A.2d 990 (Wolterbeek'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
Wolterbeek's Case, 886 A.2d 990, 152 N.H. 710, 2005 N.H. LEXIS 162 (N.H. 2005).

Opinion

Duggan, J.

On February 14, 2005, the Supreme Court Professional Conduct Committee (committee) filed a petition with this court recommending that the respondent, Mark E. Wolterbeek, be suspended from the practice of law for two years. We order the respondent disbarred.

[712]*712The committee found the following facts. In 1995, the respondent represented Richard Schneider in his divorce. Schneider and his then-wife had owned the Village Grocery Store in Rindge since 1985, which was in the same building as the respondent’s law office. In the divorce decree, Schneider was awarded the Village Grocery Store and its premises (collectively referred to as the ‘Village Grocer”). In late 1995, aware of Schneider’s financial difficulties, the respondent advised Schneider to file for bankruptcy.

At the same time, Shawmut Bank was in the process of foreclosing on the Village Grocer and, in October 1995, held a foreclosure sale at which there were no bidders. The respondent informed Shawmut Bank of his concerns about gasoline pumps and underground storage tanks that were once located on the property. Largely due to this, Shawmut Bank became uninterested in holding record title to the property.

On October 10, 1995, the respondent, his wife and George Chapman signed a partnership agreement forming the REMY Limited Partnership (REMY). The partnership was not registered with the Secretary of State at that time. On October 30,1995, REMY paid Shawmut Bank $25,000 for the three mortgages it held on the Village Grocer. During the negotiations with Shawmut Bank, the respondent did not reveal to Shawmut Bank that he was one of REMY’s partners and instead described REMY as a “group of investors.”

The respondent then drafted a quitclaim deed that Schneider signed on October 31, 1995, transferring title to the Village Grocer to REMY. Schneider and Chapman signed the deed and the respondent and his wife witnessed the signatures. Schneider was unaware that the respondent and his wife were involved in REMY.

On November 3, 1995, the respondent filed a petition with the bankruptcy court on behalf of Schneider. The petition stated that Schneider owned no real estate at the time. However, Schneider had executed the bankruptcy petition on October 27, 1995, at which time Schneider still held record title to the Village Grocer. In another section of the bankruptcy petition asking the debtor to list “all other property ... transferred either absolutely or as security within one year immediately preceding the commencement of this case,” the petition stated “none.” In a section of the petition concerning secured claims, the petition listed Shawmut Bank as having a mortgage on the Village Grocer in the amount of $169,276.98 and estimated the market value of the Village Grocer to be $25,000. In response to a question concerning foreclosure sales within one year preceding filing of the petition, the petition stated that Shawmut Bank had foreclosed on the Village Grocer but did not mention the quitclaim deed or that REMY had acquired the mortgages from Shawmut [713]*713Bank. In mid-November 1995, Schneider moved to Florida. On February 6,1996, Schneider received a discharge in bankruptcy.

On April 8,1996, REMY obtained a $75,000 loan secured by the Village Grocer from Granite Bank. The next day, REMY filed a certificate of Limited Partnership with the Secretary of State listing the respondent and his wife as general partners and Chapman as limited partner.

In the fall of 2002, Schneider moved back to New Hampshire. On October 10, 2002, he met with the respondent and signed a “Corrective Quitclaim Deed” amending the name of the grantee from “REMY Limited Partnership” to “REMY Real Estate Limited Partnership.” Schneider was still unaware of the respondent’s interest in REMY.

On May 13, 2003, REMY refinanced the mortgage held by Granite Bank. By the terms of the refinancing agreement, REMY received an additional loan of $125,000 secured by the Village Grocer. The following day, the respondent filed an affidavit with the Cheshire County Registry of Deeds clarifying that “REMY Limited Partnership” was the same entity as “REMY Real Estate Limited Partnership.” The affidavit listed the respondent as a general partner and Chapman as a limited partner. The respondent’s wife had withdrawn from the partnership. The respondent also filed the “Corrective Quitclaim Deed” with the registry of deeds.

On August 4, 2003, United States Trustee Geraldine B. Karonis filed an ex parte motion to reopen Schneider’s bankruptcy case based upon the discovery of information not previously disclosed. Schneider first learned of the respondent’s interest in REMY during subsequent discussions at Karonis’ office.

On September 24, 2003, Schneider filed a complaint with the committee alleging professional misconduct by the respondent based upon the events that occurred between 1994 and 1996. On October 20, 2004, the Attorney Discipline Office (ADO) issued a notice of charges. The respondent then filed a motion to dismiss the charges, arguing they were barred by the statute of limitations. See Sup. Ct. R. 37A(I)(i). A hearing on the motion to dismiss was scheduled for November 19, 2004. Immediately before the hearing, the respondent and the ADO entered into a stipulation that there was clear and convincing evidence that the respondent had violated Rules of Professional Conduct 1.7(b), 1.8(a), 3.3(a)(1), 8.4(c) and 8.4(a), and that the respondent should be suspended from the practice of law for two years. A hearing panel of the committee recommended a two-year suspension in a December 2, 2004 written decision. After reviewing the record, the committee adopted the panel’s recommendation. The committee then filed a petition requesting that this court suspend the respondent from practicing law for two years. The sole issue before us is whether to adopt the recommended sanction.

[714]*714In attorney discipline matters, we defer to the committee’s factual findings if supported by the record, but retain “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.” Richmond’s Case, 152 N.H. 155, 158 (2005). In deciding the appropriate sanction, we consider the case on its own facts and circumstances. Flint’s Case, 133 N.H. 685, 689 (1990).

;We look to the ABA Standards For Imposing Lawyer Sanctions (1992) (STANDARDS) for guidance. Feld’s Case, 149 N.H. 19, 28 (2002), cert. denied, 540 U.S. 815 (2003). The STANDARDS list the following factors for consideration in imposing sanctions: “(a) the duty violated; (b) the lawyer’s mental state; (c) the.potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.” Standards, supra § 3.0; see Kersey’s Case, 150 N.H. 585, 587, cert. denied, 125 S. Ct. 97 (2004).

In applying these'factors, the first step is to categorize the respondent’s misconduct and identify the appropriate sanction. After determining the sanction, we consider the effect of any aggravating or mitigating factors on the ultimate sanction. Standards, supra, Methodology. Here, the respondent’s misconduct falls into three categories.

First, the parties stipulated that acquiring the three mortgages from Shawmut Bank and becoming a holder of notes on which Schneider was an obligor was a conflict of interest in violation of Rule 1.7(b).

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Bluebook (online)
886 A.2d 990, 152 N.H. 710, 2005 N.H. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolterbeeks-case-nh-2005.