Eshleman's Case
Original No. 83-322
SUPREME COURT OF NEW HAMPSHIRE
126 N.H. 1;
489 A.2d 571;
1985 N.H. LEXIS 282
January 2, 1985
PRIOR HISTORY:
[***1]
Original
DISPOSITION:
Maris Eshleman is hereby disbarred. So ordered.
HEADNOTES: 1. Attorney and Client--Reprimand,
Suspension and
Disbarment--Generally
The supreme court is empowered to impose either
disbarment or indefinite
suspension as sanctions against attorneys to protect the public and the integrity of the
legal profession. RSA 311:8; Supreme Ct. R. 37(13)(f).
2. Words and Phrases--Disbarment
Disbarment means the termination of an attorney's
right to practice law in the State and an automatic expulsion from
membership in the State's bar.
3. Words and Phrases--Suspension
Suspension means an interruption of an attorney's
right to practice law in the State, and carries no implication concerning bar association
membership.
4. Attorney and Client--Reprimand,
Suspension and
Disbarment--Grounds for
Disbarment
The
misappropriation or embezzlement of clients' funds by an attorney demonstrates such lack of
common honesty as to clearly justify
disbarment.
5. Attorney and Client--Disciplinary Proceedings--Institution
The supreme court
may take
disciplinary action against an attorney in response to the attorney's
indictment, binding over or conviction involving a
serious crime; however, the critical fact prompting final
disciplinary action is not the conviction or
indictment, but the underlying conduct
giving rise to it. Supreme Ct. R. 37(7).
6. Attorney and Client--Disciplinary Proceedings--Institution
Attorney who was under
suspension, and was contesting his
suspension, had a
duty to keep the Committee on Professional Conduct informed of all
facts relevant to his fitness as a lawyer, and his
failure to disclose a
grand theft
arrest was a sufficient ground for
disciplinary action, even though no
indictment or information followed the
arrest.
7. Attorney and Client--Reprimand,
Suspension and
Disbarment--Grounds for
Disbarment
Mitigating factors must be considered in determining the
discipline to be imposed on an attorney in a given case,
but such factors, including youth and
inexperience, do not necessarily preclude
disbarment for the protection of the public.
8. Attorney and Client--Reprimand,
Suspension and
Disbarment--Grounds for
Disbarment
Where attorney misappropriated clients' funds and made
misrepresentations concerning his actions, and where he committed other serious violations of
Code of Professional Responsibility, the assertion that the attorney was a
young, solo practitioner who was
"in over his head" was not cause for
mitigating the sanction of
disbarment which was imposed.
COUNSEL:
Harold W. Perkins, of Concord, as Chairman of the Committee on Professional Conduct, by brief
and orally, for the committee.
Peter F. Kearns, of Exeter, orally for the respondent, waiving brief.
JUDGES: Batchelder, J. Brock, J., did not sit; the others concurred.
OPINIONBY: BATCHELDER
OPINION:
[*2]
[**571] On July 28, 1983, the Committee on Professional Conduct, by its Chairman,
Harold W. Perkins, filed a petition with this court seeking the
suspension of Maris H. Eshleman from the
practice of law in this State. Upon recommendation of the Committee on Professional Conduct,
we
suspended Eshleman on August 29, 1983, from the
practice of law, pursuant to Supreme Court Rule 37(13)(d), and ordered him to show cause by
September 30, 1983, why the
suspension should not be made permanent. Eshleman responded to the allegations in the
petition on September 30, 1983. On October 6, 1983, Eshleman offered his
resignation, which we rejected on October 19, 1983. After a prehearing
conference in April 1984, the parties, in May 1984, stipulated to
[**572] the facts of this case. The question before the court
[***2] is what
discipline should be imposed upon the respondent.
The facts as agreed by the parties are, in significant part, as
follows:
1) That Eshleman maintained inadequate client trust account records during
1981, 1982, and 1983 in violation of Disciplinary Rule (DR) 9-102(B)(3) of the
Code of Professional Responsibility;
2) That since at least March 1982 Eshleman has been out of trust in violation
of DR 9-102(A) and has been financially unable to complete an audit such that
the full extent of shortages is unknown, but in all probability may exceed $
70,000;
[*3] 3) That Eshleman's 1982 Annual Trust Accounting Compliance Certificate failed
to disclose that he was out of trust; and that he had executed the Lawyer
Certificate certifying that he had read DR 9-102 and Supreme Court Rule 37(7)
and that he was in compliance with them;
4) That Eshleman has not filed an Annual Trust Account Certificate which was
due on June 1, 1983;
5) That on May 31, 1983, Eshleman
falsely represented under
oath to a hearing panel of the Committee on Professional Conduct that he had
raised personal funds and corrected trust fund shortages;
6) That Eshleman had failed to inform the Committee on
[***3] Professional Conduct or the Supreme Court or his attorneys that he had been
arrested on September 28, 1983 on a
grand theft charge in Florida in connection with a check he drew against
insufficient funds;
7) That on September 30, 1983, Eshleman
falsely represented to the Supreme Court, the Committee on Professional Conduct and his attorneys
that certain property in Florida was about to be sold and that the proceeds
would be sufficient to meet his obligations to a client, the Summit at Four
Seasons;
8) That the
misrepresentations and falsities in 5, 6, and 7 above were retracted or corrected in the course
of the official proceedings before it became manifest that any such
falsification was or would be exposed and before it substantially affected the
proceedings.
The parties' stipulation also included respondent's agreement that any final
order of this
court shall include a requirement that, as a condition of consideration for
readmission to the bar, at any time, Eshleman shall be required: a) to provide
satisfactory proof that all sums which are due clients from his trust funds
have been paid in full; and b) to reimburse the Committee on Professional
Conduct in full for all sums
[***4] expended by the committee in the investigation and prosecution of this matter,
said sum as of May 10, 1984, having been $ 1,920.
The Committee on Professional Conduct seeks
disbarment of the respondent. In connection with that request, the committee urges that
this court clearly distinguish between disciplinary measures of
disbarment and indefinite
suspension. The distinction between
disbarment and
suspension sought by the committee is a meaningful and useful one. Clearly, this court
is empowered to
[*4] impose either sanction as necessary to protect the public and the integrity of
the
legal profession. RSA 311:8; Sup. Ct. R. 37(13)(f);
see, e.g.,
Delano's Case, 58 N.H. 5 (1876);
Nardi's Case, 122 N.H. 277, 278, 444 A.2d 512, 512-14 (1982) (attorney removed from office or
disbarred);
Wholey's Case, 110 N.H. 449, 270 A.2d 609 (1970) (attorney
suspended for six months);
Mussman's Case, 111 N.H. 402, 412, 286 A.2d 614, 620 (1971) (attorney
suspended until further order of this court, provided further that no such request for
reinstatement be made for three years from the date of
suspension).
The term
"disbarment" means the termination of an attorney's
right
[***5] to practice law in the State and an automatic expulsion from
membership in the State's bar.
See
In re Unification of the New Hampshire Bar, 109 N.H. 260, 248 A.2d 709 (1968).
"Suspension"
means an interruption
[**573] of an attorney's
right to practice law in the State. A
suspended attorney is subject to compliance with all terms and conditions set forth in
the
suspension order and applicable Supreme Court Rules.
Suspensions carry no implication concerning bar association
membership.
The law of this State regarding misuse of clients' funds and
misrepresentation is well established.
"The
misappropriation or embezzlement of clients' funds by an attorney demonstrates such lack of
common honesty as to clearly justify an attorney's
disbarment."
Harrington's Case, 100 N.H. 243, 244, 123 A.2d 396, 396 (1956) (citing
Delano's Case, 58 N.H. 5 (1876)).
"It has long been established that 'any use of the client's money by the
attorney for his own advantage is a breach of trust which cannot be tolerated .
. . .'"
Wholey's Case, 110 N.H. 449, 450, 270 A.2d 609, 610 (1970) (quoting
Allen's Case, 75 N.H. 301, 73 A. 804 (1909)).
Inattention and negligence in handling matters
[***6] entrusted to an attorney by clients, and the resort to misleading statements
to cover up these deficiencies to the detriment of clients, do not measure up
to the standards demanded of members of the bar of this State.
Donovan's Case, 108 N.H. 34, 39, 226 A.2d 779, 783 (1967). A lawyer shall not engage in conduct that involves
dishonesty, fraud,
deceit or
misrepresentation, that prejudices the administration of justice, or that
adversely reflects on his
fitness to practice law. DR 1-102(A)(4), (5), (6).
The respondent's failure to notify this court or the Committee on Professional
Conduct of his
arrest for
grand theft for a check in Florida drawn against
insufficient funds is also of disciplinary consequence in this case. The question is whether the
respondent was under a duty to disclose this fact, even though it was only an
arrest
[*5] and even though, upon request of the victim, no
indictment or information followed from the incident in Florida.
Supreme Court Rule 37(7) authorizes this court to take
disciplinary action in response to an
indictment, binding over or conviction involving a
serious crime.
See, e.g.,
Nardi's Case, 122 N.H. 277, 444 A.2d 512 (1982).
[***7] However, the critical fact prompting final
disciplinary action is not the fact of conviction or
indictment, but the underlying conduct
giving rise to that
indictment or conviction.
See Sup. Ct. R. 37(7)(f) (reinstatement of attorney
suspended on basis of conviction for a
serious crime, upon reversal of conviction, does not terminate any
disciplinary proceeding against the attorney);
In re Browning, 23 Ill. 2d 483, 179 N.E.2d 14 (1961) (disciplinary proceeding based on same conduct as that
giving rise to criminal charge not barred by acquittal of criminal charges);
cf.
In re Crane, 23 Ill. 2d 398, 400-01, 178 N.E.2d 349, 350 (1961) (underlying facts leading to conviction may mitigate
discipline). An
arrest by itself can also indicate underlying conduct of consequence to a
disciplinary proceeding.
While the duty of a lawyer to disclose facts regarding
his own conduct to an investigating tribunal is not entirely clear in the Code of Professional
Responsibility (see American Bar Association Model Rules of Professional Conduct
§ 8.1 and comment thereto), an attorney in this State is subject to
discipline for failing to report to the Committee on Professional Conduct
[***8] unprivileged knowledge of a lawyer's
conduct involving
dishonesty, fraud,
deceit or
misrepresentation or conduct prejudicial to the administration of justice or conduct reflecting
adversely on a lawyer's
fitness to practice law. DR 1-103; 1-102(4), (5), (6). An attorney is also subject to
discipline for deliberately failing to disclose a material fact requested in connection
with his application for admission to the bar. DR 1-101(A).
Insofar as Eshleman was under
suspension at the time of his
arrest and was contesting his
suspension, his
duty to keep this court and the conduct committee informed
[**574] of all
facts relevant to his fitness as a lawyer is at least as great as that of a new applicant.
See
Delano's Case, 58 N.H. 5, 5-6 (1876) (misconduct sufficient to prevent admission to the bar is sufficient to
warrant removal from the bar). Hence, Eshleman's
failure to disclose a
grand theft
arrest for a check in
Florida drawn against
insufficient funds is a further ground for
discipline in this case.
The agreed upon facts of this case reveal a pattern of far-reaching disregard
for the rights of clients and disrespect for the legal processes created by
this court to
[***9] protect those rights from abuses by members of the bar of this State.
Misappropriation of clients' funds
[*6] is a serious error which in and of itself justifies
disbarment. Falsely representing that state of affairs under oath is reprehensible, even
if the record was set straight before any harm resulted from that
misrepresentation.
See
Olquin v. State Bar of California, 616 P.2d 858, 861, 167 Cal. Rptr. 876, 879 (1980).
In determining the
discipline to be imposed in a given case, this court must consider
mitigating factors,
Mussman's Case, 111 N.H. 402, 412, 286 A.2d 614, 620 (1971), but such factors, including youth and
inexperience, do not necessarily preclude
disbarment for the protection of the public.
Harrington's Case, 100 N.H. at 244-45, 123 A.2d at 397;
Nardi's Case, supra at 279, 444 A.2d at 514. We are not convinced that the assertion that Eshleman was a young, solo
practitioner who was
"in over his head" is any excuse for his conduct, or any cause for
mitigating the sanction in this case.
It is the opinion of this court that Maris Eshleman should be
disbarred.
Maris Eshleman is hereby
disbarred. So ordered.
