Mesmer's Case

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Professional Conduct Committee
No. LD-2019-0001
MESMER’S CASE
Argued: October 10, 2019
Opinion Issued: February 21, 2020
Sara S. Greene, disciplinary counsel, of Concord, on the brief and orally,
for the Attorney Discipline Office.
Upton & Hatfield, LLP, of Portsmouth (Russell F. Hilliard and Brooke
Lovett Shilo on the brief, and Mr. Hilliard orally), for the respondent.
BASSETT, J. On February 19, 2019, the New Hampshire Supreme Court
Professional Conduct Committee (PCC) filed a petition in which it found that
the respondent, Joshua N. Mesmer, violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 3.3,
8.4(a), and 8.4(c) of the New Hampshire Rules of Professional Conduct while
serving as counsel in a case litigated from December 2015 to November 2016.1
The PCC has recommended that the respondent be suspended from the
practice of law for three years, and, provided that the respondent pays for the
costs of investigating and prosecuting this matter and engages in no further
professional misconduct, that 18 months of the suspension be stayed. The
respondent challenges the recommended sanction, arguing that, because he
was suffering from severe sleep apnea during the period of representation, he
was unable to form the “knowing” state of mind necessary for a number of the
1In this case, the respondent represented a married couple. For ease of reference, we refer to the
couple as “the client,” “she,” or “her.”
ethical violations, and that his sleep apnea is a significant mitigating factor in
determining the proper sanction. The respondent argues that he should
receive a fully-stayed suspension. We adopt the PCC’s recommended sanction.
The following facts were either found by the PCC or are supported by the
record, which includes testimony from an evidentiary hearing held before a
hearing panel appointed by the chair of the hearings committee of the attorney
discipline system. See Sup. Ct. R. 37A(III)(b)(4). The respondent was admitted
to the Massachusetts Bar in 2006, and the New Hampshire Bar in 2007. He
began his legal career as an assistant county attorney in the Hillsborough
County Attorney’s Office. In 2012, he left that position to become an associate
in his father’s law firm: Mesmer & Deleault, PLLC in Manchester (the Mesmer
law firm).
The conduct code violations at issue arise from the respondent’s
representation of the client in a fraudulent conveyance action between
December 2015 and November 2016. The respondent’s relationship with the
client began in 2012, when the Mesmer law firm represented a company,
owned by the client, that had been sued by Motostar Tire and Auto Products,
Inc. (Motostar). Motostar obtained a judgment of approximately $165,000.
Motostar and the company negotiated a payment plan, but the company failed
to make the required payments. In December 2015, Motostar filed a Petition to
Set Aside Fraudulent Conveyance against the company and the client.
On January 6, 2016, the respondent agreed to accept service on the
client’s behalf. Also on January 6, the respondent e-mailed Paul DeCarolis,
counsel for Motostar, stating, “After reviewing your Petition to Set Aside
Fraudulent Conveyance, I am curious as to what money or assets you’re
referring to as having been transferred fraudulently. Perhaps we can figure
this out together.” The respondent e-mailed a copy of the fraudulent
conveyance petition to the client, and stated that he was “drafting an Objection
to the Petition and a Motion to Dismiss to boot.” The respondent also
represented that he would send the client a copy of the pleadings on January 6
or 7.
On January 8, the client e-mailed the respondent, asking if he had sent
her the motion to dismiss. The respondent replied by e-mail the same day,
stating that he and his colleagues were researching fraudulent conveyance law
“a little further” before filing. On January 22, the client again e-mailed the
respondent, asking if the motion to dismiss had been filed. On January 23, the
respondent replied, “No stress . . . . We are working on it . . . . You can expect
to see some movement on our end by Tuesday.”
Despite these repeated assurances, the respondent did not file a motion
to dismiss, or any other responsive pleading. The respondent’s billing records
2
show no entries after January 15 regarding a response to the fraudulent
conveyance petition. The superior court issued a notice of default on February
26.
On March 14, DeCarolis e-mailed the respondent, asking, “Did
defendants intend to default in the fraudulent conveyance action?” On the
same day, the respondent replied, “Not at all. Did you not receive a copy of the
response?” Just two minutes later, DeCarolis responded, “No, only the default
notice.” On March 18, DeCarolis followed up in the same e-mail thread,
stating, “I have not seen anything.” The respondent did not reply to DeCarolis’
final March 14 e-mail or his March 18 e-mail. Nor did the respondent contact
the court to determine whether it had received any pleadings from him.
On April 6, DeCarolis filed a motion for final judgment, mailing copies to
both the respondent and the client. The respondent did not object, and the
motion was granted on April 28.
On May 6, the client received a notice of final decision from the court.
This notice was her first update on the case since January. Later that day, she
called the respondent and informed him of the notice. This conversation is
memorialized in the respondent’s billing records: two entries from May 6 state,
“Call from [the client]; received Notice of Final Decision; will fax to my
attention,” and “To conduct investigation; discuss with Rebekah [a paralegal].
Will prepare appropriate response if necessary.”
On June 6, a default judgment of over $120,000 was entered against the
client. On June 4, 7, 16, and 29, the client e-mailed the respondent asking
about the status of the Motostar case, whether a motion to dismiss had been
filed, and how the default had occurred. The respondent did not address any
of these inquiries; rather, in June he sent the client one e-mail, which
concerned a different matter.
On July 1, Motostar obtained a writ of execution, which the Hillsborough
County Sheriff served on the client. In execution of the writ, Motostar sought
the client’s shares of stock in another company. That same day, the
respondent met with the client, and he memorialized the meeting in an e-mail
sent to her on the night of July 1:
I am writing to follow up on our meeting this morning. I put
in a call to Paul DeCarolis, but he’s out of the office today because
of the holiday. I’ve been working on a Motion and Supporting
Memorandum and plan on finishing them over the weekend. They
will be filed in Nashua Superior first thing Monday morning. I will
e-mail you copies when they are done.
3
....
Try and enjoy the weekend. And know that I am working
hard to get this matter straightened out once and for all.
On July 5, the client e-mailed the respondent, expressing anxiety about
the case and asking the respondent if he was filing an “appeal” that day. The
respondent quickly replied, “Yes. Be in touch soon.” The respondent did not
file anything with the court during the week of July 4. The respondent later
admitted that he had lied in his July 1 and 5 representations to the client.
On July 14, the Sheriff served the writ of execution on the respondent as
registered agent of the client’s company. On July 15, Motostar filed a motion
for ex parte relief, and the court ordered the client to produce their stock
certificates by July 18. The court also scheduled a hearing on the ex parte
motion for July 22. On July 15, the respondent spoke with the client, who was
very concerned about these developments.
On July 18, the respondent sent a text-message to the client, stating that
he had informed the Sheriff “that an expedited motion to stay execution of
judgment has been filed and that it shouldn’t be enforced until a ruling has
been made.” When the client expressed anxiety about defying the court’s order
to surrender her stock certificates that day, the respondent stated, “They can’t
arrest you with a motion pending.” Despite the respondent’s representations
that he had filed the motion to stay on July 18, the court docket sheet reveals
that the motion was not filed until July 19.
In the motion to stay, the respondent represented that “Defendants filed
a timely response and have received no information pertaining to this matter
since that time and to date.” Motostar filed an objection to the motion on July
20, and e-mailed a copy of the objection to the respondent that day. In the
objection, Motostar attached as exhibits DeCarolis’ March 14 and 18 e-mails
with the respondent, and also represented that the respondent had been copied
on the motion for final judgment filed in April.
On July 22, the client traveled with the respondent to the hearing on
Motostar’s motion for ex parte relief. As they traveled, the respondent admitted
to the client that he had not filed an answer or any other responsive pleadings
in the case. Following the July 22 hearing, the court granted Motostar’s
motion for ex parte relief, and ordered the client to deliver her stock certificates
to the Hillsborough County Sheriff by July 25. The trial court also stated
during the July 22 hearing that the respondent was free to file a motion to
vacate default on the client’s behalf at any time.
4
Between July 22 and September 13, the respondent made a series of
intentional misrepresentations to the client, in which he stated falsely that
various pleadings would soon be, and/or had already been, filed. For example,
on July 25, the respondent told the client that he was working on an “appeal,”
and that he was “not stopping until we have won and finished this once and for
all.” On August 5, the respondent told the client that “the pleadings have been
filed and now we wait.” In fact, the respondent had not filed anything. The
respondent also billed the client for drafting client affidavits on July 28, and
filing pleadings on July 29, even though he made no filings on July 29, and
there is no evidence that he met with the client to sign affidavits during this
time period.
On August 10, the respondent texted the client that he was “[w]orking on
motions” to be filed “first thing in the morning.” When the client replied that
she thought those motions had already been filed, the respondent replied,
falsely, “Oh no, I definitely filed motions after our hearing, but clearly we need
more.” On the same day, the respondent told the client, falsely, that he was
working with his father to “clear . . . up” problems in the case.
On September 2, the client asked, “were the papers filed??” The
respondent replied, falsely, “Yes.” On September 7, the respondent represented
to the client that he was drafting a “supplemental motion”; the respondent
admitted during his testimony before the hearing panel that he had described
the filing as “supplemental” in order to maintain the false impression that
pleadings had already been filed. The respondent also represented to the client
that he had heard “[n]othing” about “last week’s filings,” even though there
were no filings from the prior week.
Throughout this period, the client sent the respondent near-daily
messages seeking updates on the case, and stating that the case was causing
her significant stress and anxiety. The respondent often did not reply to these
messages. When he did, he never told the client the truth: that he had filed no
pleadings, and thus nothing was pending before the court.
Finally, on September 13, the respondent filed his first pleadings in the
case since July. These filings included numerous misrepresentations. In a
motion to accept late filing, the respondent represented that he had intended to
file a limited appearance in February. In an attached affidavit, he certified that
“[b]ecause undersigned counsel filed a Limited Appearance for the sole purpose
of responding to Plaintiff’s Petition, he at all times believed [the client was]
receiving and handling any and all correspondence from Plaintiff and the
Court.” The respondent had not obtained the client’s informed consent to a
limited representation. Notably, although the respondent had represented the
client since 2012, he had never done so on a limited basis.
5
In a motion to vacate default judgment, the respondent represented that
it was not until July 2016 “that Defendants . . . were first notified of this action
and its procedural posture.” The motion to accept late filing also included an
affidavit from the client, in which she similarly stated that “[f]rom [the filing of
the complaint] until July of 2016, we received nothing from Plaintiff in the way
of pleadings, nor anything from the Court in the way of Court Orders. . . . It
was not until the Sheriff arrived . . . in July 2016 that we were notified that
Plaintiff had secured a default judgment against us.” The respondent testified
that, at the time the affidavits were prepared, he did not recall DeCarolis’
March e-mails about the default, the May 6 call with the client about the notice
of final decision, or the client’s June e-mails referencing the default.
By August 10, the respondent had received notice that a sheriff’s sale of
the client’s stock certificates had been scheduled for September 15 at 10:00
a.m. On September 13, the court denied the respondent’s motion to stay the
sheriff’s sale. On September 15, the court denied the respondent’s motion to
reconsider its September 13 order. The respondent then texted the client,
describing the rulings as “the most corrupt backwards shit I’ve ever seen in my
years as an attorney,” and stating that “decarolis had the Nashua superior in
his pocket since he and his firm litigate there on a near weekly basis.”
At 10:07 a.m. on September 15, DeCarolis e-mailed the respondent
asking if he was coming to the sheriff’s sale. At 12:56 p.m., after the sale had
concluded, the respondent texted DeCarolis, asking, “where are we at with
everything auction-wise[?]” At 4:03 p.m., despite these messages, and despite
the fact that the sale had already occurred as scheduled, the respondent texted
the client that she “might want to call Matt Estey sheriff and tell him your
appealing case and it’s being filed tomorrow and he will hold off.”
Despite this representation, the respondent never filed an appeal with
this court. Around this time, the respondent also falsely represented to the
client that his father was reviewing an appeal with this court. Although no
appeal was filed, the respondent billed the client more than $600 for appeal-
related work.
On September 21, the court set a hearing for October 19 on pending
motions, including motions the respondent had filed on September 13 to vacate
default judgment and dismiss the fraudulent conveyance action. On
September 22, Motostar filed a “Motion to Extend Time to Respond to
Defendants’ Motion to Dismiss.” In the motion, Motostar noted that the client
had to obtain a favorable ruling on her motion to vacate default judgment
before the merits of the motion to dismiss could be considered. Around
September 23, the respondent informed DeCarolis that he had no objection to
Motostar’s motion to extend. The court granted the motion to extend on
September 30.
6
After the motion to extend was granted, the only issue to be considered
at the October 19 hearing was the motion to vacate default judgment. Despite
this procedural posture, between September 23 and October 18, the
respondent billed the client $4,400 for 22 hours spent preparing witnesses and
exhibits for a hearing on the motion to dismiss. On October 13, the
respondent e-mailed the client about her bill, stating, “I am catching a lot of
heat for not getting a retainer before we started litigating this matter. If it’s at
all possible to make even a partial payment toward [your] balance . . . it would
help me out a lot.” In all, the respondent billed the client more than $23,000
for his work on the July and September filings, and his preparation and
attendance at the October 19 hearing.
Following the October 19 hearing, the respondent texted the client that
he was “very sorry that the hearing didn’t play out as hoped, but I can’t say I’m
all that surprised.” Despite this acknowledgment, the respondent told the
client, “I don’t feel any less confident now than I did before the hearing.” The
respondent also informed the client that “[a]dditional motions are being filed
today or in the morning,” and that he and his father felt “confident in [their]
supplemental position.” The client testified before the hearing panel that it was
only after the October 19 hearing that she realized the extent of the
respondent’s misrepresentations to her.
On November 2, the court denied the motion to vacate default judgment,
and deemed the motion to dismiss moot. Shortly thereafter, the client
terminated her engagement with the respondent. On November 4, DeCarolis
made a referral regarding the respondent to the Attorney Discipline Office
(ADO), attaching the November 2 order from the superior court.
On September 11, 2017, the ADO issued a notice of charges alleging that
the respondent had violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c)
of the New Hampshire Rules of Professional Conduct. On June 11, 12, and 14,
2018, the hearing panel appointed by the chair of the hearings committee held
an evidentiary hearing. At that time, a number of witnesses testified: the
respondent, the respondent’s father, the client, DeCarolis, a licensed clinical
mental health counselor who had treated the respondent, and experts on sleep
apnea retained by both the respondent and the ADO.
During the hearing, the respondent conceded that he had violated Rules
1.1, 1.2, 1.3, 1.4, 1.5, and 8.4(a). Although he acknowledged that he had
violated Rule 8.4(c), he contested certain “aspects” of the charged conduct. In
addition, the respondent denied that he had violated Rule 3.3. The respondent
testified that, during 2016, he had been “unwell,” and that he “fell behind” in a
number of his cases, including the matter at issue here. He explained that,
after experiencing several years of unexplained health problems, including
fatigue, swelling, and abdominal pain, in approximately March of 2017 he was
7
diagnosed with obstructive sleep apnea. The respondent testified that, after
beginning treatment for sleep apnea in 2017, he has been less fatigued, and his
professional performance significantly improved.
The respondent argued that, during his representation of the client, his
cognitive functioning was impaired such that he was unable to “knowingly”
make false statements to the court, and that he therefore lacked the requisite
mental state for a Rule 3.3 violation. The ADO countered that the respondent
was, in fact, capable of forming the “knowing” state of mind necessary for a
Rule 3.3 violation, and that he had committed all of the Rules violations alleged
in the notice of charges. On November 2, 2018, the hearing panel found, by
clear and convincing evidence, that the respondent had violated Rules 1.1, 1.2,
1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c), and recommended that he be suspended
for 18 months.
Oral argument was held before the PCC on January 15, 2019. The
respondent argued that the hearing panel had failed to adequately consider the
extent to which sleep apnea had contributed to his misconduct. The
respondent argued that, due to sleep apnea, he was suffering from oxygen
desaturation in his brain, which inhibited his judgment and ability to fully
comprehend the consequences of his actions. The respondent also argued that
he was now “recovered” from his condition, and that, consequently, a fully-
stayed suspension would better serve the purposes of attorney discipline than
the 18-month suspension recommended by the hearing panel.
After considering the record before the hearing panel and the parties’
arguments, the PCC adopted the hearing panel’s findings of fact as supported
by clear and convincing evidence. See Sup. Ct. R. 37A(III)(d)(2)(C). The PCC
also found, by clear and convincing evidence, that the respondent had violated
Rules 1.1, 1.2, 1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c). To determine a
recommended sanction for the respondent’s violations, the PCC referred to the
American Bar Association’s Standards for Imposing Lawyer Sanctions. The
PCC found that, before consideration of aggravating and mitigating factors
applicable to the respondent’s conduct, the “baseline” sanction for the
respondent’s violations was disbarment under Standards §§ 4.41, 4.61, and
7.1. See Annotated Standards for Imposing Lawyer Sanctions, § 4.41, at 178;
§ 4.61, at 199; § 7.1, at 341 (2015). The PCC then considered aggravating and
mitigating factors that it found applicable to the respondent’s conduct, and
determined that the case “present[ed] a close[] call between . . . disbarment
versus suspension.” Ultimately, the PCC recommended that the respondent be
suspended for three years, with 18 months of the suspension stayed, provided
that the respondent engages in no professional misconduct, and pays for the
costs of investigation and prosecution of this matter. The PCC filed its
recommendation with this court, as required for any recommended sanction
greater than six months. See Sup. Ct. R. 37(16)(b).
8
“In attorney discipline cases, we defer to the PCC’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 sanction.” Salomon’s Case, 171 N.H. 694, 700 (2019).
We begin by reviewing the PCC’s finding, by clear and convincing evidence, that
the respondent violated eight Rules of Professional Conduct: Rules 1.1, 1.2,
1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c). See id. The PCC’s finding as to each of
these Rules is supported by the record.
We first address Rules 1.1, 1.2, 1.3, 1.4, 1.5, 8.4(a), and 8.4(c). The
respondent has acknowledged violating each of these Rules, and we find that
the record supports the PCC’s conclusion that the respondent did, in fact,
violate each of them.
Having upheld the PCC’s findings regarding seven of the eight alleged
Rules violations, we now turn to Rule 3.3. Rule 3.3(a) provides, in pertinent
part, that a lawyer “shall not knowingly . . . make a false statement of fact or
law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer.” Under the Rules, “knowingly”
is defined as “actual knowledge of the fact in question. A person’s knowledge
may be inferred from circumstances.” N.H. R. Prof. Conduct 1.0(f). As he did
before the hearing panel, the respondent argues that, because sleep apnea
severely impaired his memory, his false statements to the court were not made
“knowingly.” The respondent argues that his mental faculty was impaired such
that he “believed he was providing the court with correct information.” We
find, however, that the PCC’s finding of a Rule 3.3 violation is supported by
clear and convincing evidence.
The PCC adopted the factual findings of the hearing panel, which heard
extensive expert testimony on the issue of sleep apnea on behalf of both the
respondent and the ADO. The panel also reviewed several years of the
respondent’s medical records. In regard to sleep apnea, the panel concluded,
“it is likely that Mr. Mesmer had OSA [obstructive sleep apnea] during 2016.
The Panel agrees that this condition may have adversely affected some of Mr.
Mesmer’s functioning, in that his concentration and attention to detail may not
have been at optimal levels.” However, after “[c]onsidering the testimony of
both doctors, as well as the medical records submitted into evidence,” the
hearing panel found “that sleep apnea did not impair Mr. Mesmer’s cognitive
function to such an extent that he was incapable of achieving a ‘knowing’ state
of mind for purposes of a Rule 3.3 violation.”
To the extent that the medical testimony regarding sleep apnea
conflicted, “as a fact-finding tribunal, the PCC was at liberty to resolve any
conflict in the evidence and to accept or reject such portions of the testimony
as it saw fit.” Salomon’s Case, 171 N.H. at 700-01 (quotation omitted).
9
Moreover, even the respondent’s own expert witness, Dr. Neal, acknowledged
that he did not review the notice of charges against the respondent, and that,
in his report, he did not opine as to whether any action taken by the
respondent was likely caused by sleep apnea. When asked whether sleep
apnea could have caused the respondent to present something to the court as
true that was actually false, Dr. Neal responded only that “it could be” that
sleep apnea caused the respondent to make misrepresentations. (Emphasis
added.) Given that Dr. Neal was unwilling or unable to state with greater
certainty that sleep apnea caused the respondent to make misrepresentations
to the court, the PCC found that “Dr. Neal’s opinions as to the causal link
between sleep apnea and [the respondent’s] conduct were tenuous. The
Committee . . . cannot give more weight to [the respondent’s] condition than did
his own expert.”
There is also extensive circumstantial evidence to support the PCC’s
finding that the respondent “knowingly” made misrepresentations to the court.
Despite the respondent’s July 19 representation to the court that the client had
filed a response and had not received any subsequent information about the
case, several acts by the respondent suggest that he knew this assertion was
untrue: the respondent (1) replied to DeCarolis’ March e-mail asking if the
client had intended to default, (2) memorialized his May phone call with the
client about her receipt of the notice of final decision, (3) received four e-mails
from the client in June in which she inquired about whether the case had been
dismissed and how the default had occurred, (4) acknowledged that he was
aware that mandatory discovery would have been triggered had an answer
been filed, yet he did not follow up with DeCarolis to initiate discovery, and (5)
while en route to the July 22 hearing, admitted to the client that he had not
filed an answer. These facts also support the PCC’s finding that the
respondent knowingly made false statements to the court on September 13,
when he claimed that neither he nor the client received any updates on the
case between January and July.
Other evidence suggests that the respondent knew that additional
representations made on September 13 were untrue: that he had intended to
file a limited appearance, and therefore thought that the client was handling
correspondences from the court and Motostar. The respondent admitted that
he had never obtained the client’s informed consent to a limited representation.
The respondent had also previously received multiple correspondences about
the case from DeCarolis. In addition, the respondent had represented the
client without a limited representation agreement for years, and the client had
sent the respondent numerous messages in which she desperately inquired
about the status of the case.
Finally, the respondent had the ability to confirm the truth or falsity of
many of the representations that he made, in writing, to the court. For
10
example, a simple review of the docket or a call to the court would have
revealed that no answer or limited appearance had been filed. As the hearing
panel found, “It is not credible that an attorney, truly baffled by the dire
messages he was receiving from opposing counsel and his client, would not
make that call [to the court].” Although the respondent testified that he forgot
major events, and therefore that his false statements to the court were not
made knowingly, the hearing panel and the PCC were at liberty not to credit
this testimony. See Salomon’s Case, 171 N.H. at 700-01; O’Meara’s Case, 164
N.H. 170, 178 (2012). Therefore, we uphold the PCC’s finding, by clear and
convincing evidence, that the respondent’s July 19 and September 13
misrepresentations to the court were made “knowingly,” and that the
respondent therefore violated Rule 3.3.
Having upheld the PCC’s finding that the respondent violated Rules 1.1,
1.2, 1.3, 1.4, 1.5, 3.3, 8.4(a), and 8.4(c), we next turn to determining the
appropriate sanction. Salomon’s Case, 171 N.H. at 706. The PCC
recommended a three-year suspension, with 18 months stayed, provided that
the respondent pays the costs of investigating and prosecuting this matter, and
engages in no further professional misconduct. The respondent, while
acknowledging that he violated numerous Rules, argues that he should receive
a fully-stayed suspension. For the following reasons, we uphold the PCC’s
recommended sanction.
In determining the proper sanction, “we remain mindful that the purpose
of attorney discipline is not to inflict punishment, but rather to protect the
public, maintain public confidence in the bar, preserve the integrity of the legal
profession, and prevent similar conduct in the future.” Grew’s Case, 156 N.H.
361, 365 (2007) (quotation omitted). We judge each case on its own facts and
circumstances, taking into account the severity of the attorney’s misconduct
and any mitigating circumstances appearing in the record. Young’s Case, 154
N.H. 359, 368 (2006). Although we have not adopted the American Bar
Association’s Standards for Imposing Lawyer Sanctions, we look to them for
guidance. Salomon’s Case, 171 N.H. at 706. In accordance with the
Standards, we first determine the appropriate “baseline” sanction by
considering (1) the ethical duties violated by the lawyer, (2) the lawyer’s mental
state at the time of the violations, and (3) the extent of the actual or potential
injury caused. See id.; Standards, supra § 3.0, cmt. at 113-128. We then
consider the effect of applicable aggravating and mitigating factors to arrive at
the ultimate sanction. Salomon’s Case, 171 N.H. at 706.
We begin by assessing whether the respondent violated duties to the
client, the public, the legal system, or the legal profession. See Standards,
supra § 3.0, cmt. at 117. The PCC found, and we agree, that the respondent
violated duties to the client, the legal system, and the public. The respondent
violated duties to the client by lying to the client, not representing the client
11
diligently, failing to adequately communicate with the client, and charging
unreasonable fees. He violated duties to the legal system through his knowing
misrepresentations to the court. All of the respondent’s misrepresentations
violated his duties to the public, as “public confidence in the bar” is
undermined whenever an attorney is dishonest. See Grew’s Case, 156 N.H. at
365-66. Although not referred to by the PCC, we also find that the
respondent’s dishonesty was a breach of his duty to the legal profession, as
“the injury to the integrity of the legal profession is substantial whenever an
attorney engages in deceit. No single transgression reflects more negatively on
the legal profession than a lie.” Bosse’s Case, 155 N.H. 128, 132 (2007)
(quotation and brackets omitted). Thus, we find that the respondent violated
duties to the client, the public, the legal system, and the legal profession.
Turning next to the respondent’s mental state, we find that the
respondent acted at least knowingly, and, at times, intentionally. Under the
Standards, a lawyer’s mental state can be intentional, knowing, or negligent.
Standards, supra § 3.0, cmt. at 120. Intent is the “conscious objective or
purpose to accomplish a particular result,” while knowledge is the “conscious
awareness of the nature or attendant circumstances of the conduct, but
without the conscious objective or purpose to accomplish a particular result.”
Id. at 121-22 (quotations omitted). The respondent acknowledged that at least
some of his violations, including his misrepresentations to the client from July
22 to September 13, were intentional. The respondent contends that he made
these misrepresentations “to ameliorate the [client’s] anxiety.” The PCC did not
agree that the respondent’s motives were so selfless, and, as further explained
below, we agree that the respondent acted with a selfish motive. See
Standards, supra § 4.61, at 199; § 7.1, at 341. Because the respondent had
conscious awareness of the nature of his conduct, the respondent’s other
violations, including his misrepresentations to the court, failures to update the
client, and failures to make timely filings, were committed at least knowingly.
As for the injuries caused by the respondent, they are both actual and
serious. “Injury is harm to a client, the public, the legal system, or the
profession which results from a lawyer’s misconduct. The level of injury can
range from serious injury to little or no injury . . . .” Standards, supra at xxi
(quotations omitted).
The most serious injuries were to the respondent’s client. The
respondent stated that he believed the client should have prevailed on the
merits of the fraudulent conveyance action. However, because of his neglect, a
default judgment was entered against the client, and the client was forced to
surrender her stock certificates in one of her businesses. Although the Mesmer
law firm eventually repaid the client for the value of that ownership interest,
the client may have wished to retain that interest, rather than involuntarily
and precipitously liquidate it. Also significant is the immense stress the client
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suffered due to the litigation, which was greatly exacerbated by the
respondent’s repeated misrepresentations. The injuries to the public and the
legal profession were also serious, because, as we have observed, public
confidence in the legal profession is significantly harmed whenever a lawyer is
dishonest. See Grew’s Case, 156 N.H. at 365-66; Bosse’s Case, 155 N.H. at
132. The respondent also caused injury to the profession when he baselessly
accused DeCarolis and the court of impropriety. It is not surprising that the
client testified that her trust in lawyers diminished due to her experience.
Having found that the respondent violated duties to the client, the
public, the legal system, and the legal profession, that the respondent acted at
least knowingly, and, at times, intentionally, and that the respondent caused
serious injury, we now determine the applicable baseline sanction. See
Salomon’s Case, 171 N.H. at 707. We agree with the PCC that the baseline
sanction is disbarment. See Standards, supra § 4.41, at 178; § 4.61, at 199;
§ 7.1, at 341.
Standards § 4.41(c) provides that disbarment is generally appropriate
when “a lawyer engages in a pattern of neglect with respect to client matters
and causes serious or potentially serious injury to a client.” Standards, supra
§ 4.41(c), at 178. The respondent engaged in a pattern of neglect in this case
for nearly a year, which led his client to suffer serious and avoidable harm.
Notably, § 4.41(c) does not require any ill motive by the lawyer, and would
therefore apply even if the respondent acted with entirely unselfish intentions,
as he argues he did.
Standards § 4.61, on the other hand, does require a selfish motive; it
provides that disbarment is generally appropriate “when a lawyer knowingly
deceives a client with the intent to benefit the lawyer or another, and causes
serious injury or potentially serious injury to a client.” Standards, supra
§ 4.61, at 199. The respondent argues that § 4.61 does not apply because he
did not lie to his client with the intent to benefit himself or another. The PCC
rejected this argument, and we find that the PCC’s finding of a selfish motive is
supported by the record. As noted by the PCC, in addition to lying to his client,
the respondent billed the client for services he did not perform, and pressured
her to pay unreasonable fees. Indeed, in his October 13 e-mail to the client,
the respondent stated that it would “help me out a lot” if she could make a
payment toward her balance with the firm, of which the respondent’s father
was a partner. Finally, the respondent lied to give his client the false
impression that he was working hard for her. Thus, we uphold the PCC’s
finding that the respondent deceived his client with the intent to benefit himself
or another, and that § 4.61 therefore applies.
Section 7.1 also requires a selfish motive. It provides that disbarment is
generally appropriate “when a lawyer knowingly engages in conduct that is a
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violation of a duty owed as a professional with the intent to obtain a benefit for
the lawyer or another, and causes serious or potentially serious injury to a
client, the public, or the legal system.” Standards, supra § 7.1, at 341. Here,
§ 7.1 applies for the same reasons as § 4.61.
“When there are multiple misconduct charges, the sanction imposed
should at least be consistent with the sanction for the most serious instance of
misconduct among a number of violations; it might well be and generally
should be greater than the sanction for the most serious misconduct.”
O’Meara’s Case, 164 N.H. at 179-80 (quotation omitted). Here, given that
disbarment is the baseline sanction under multiple sections of the Standards,
we find that the overall baseline sanction is disbarment.
To determine the ultimate sanction, we consider aggravating and
mitigating factors. See Salomon’s Case, 171 N.H. at 706; Standards, supra
§ 3.0, cmt. at 128. The PCC found two aggravating factors: the respondent
acted with a selfish motive, and engaged in a pattern of misconduct. See
Standards, supra § 9.22, at 418. The respondent counters that no aggravating
factors are present. We agree with the PCC that the two factors are present.
Here, the respondent acted with a selfish motive because he pressured
his client to pay unreasonable fees while lying to his client in order to maintain
the false impression that he was working hard on her behalf. As to the second
aggravating factor, we find that the respondent engaged in a pattern of
misconduct, making dozens of intentional misrepresentations to his client over
a period of many months.
The respondent, citing Morse’s Case, 160 N.H. 538, 549 (2010), and
Welts’ Case, 136 N.H. 588, 593 (1993), argues that this court has never found
a “pattern of misconduct” based on a “single course of conduct, even a lengthy
one.” However, we do not find these cases to be availing for the respondent.
Welts’ Case is inapposite because it involved only a single misrepresentation to
the client. See Welts’ Case, 136 N.H. at 590. Here, in contrast, the respondent
lied to his client on a regular basis for a period of months, and admitted to
much of his dishonesty only after the ADO began its investigation. In addition,
in Morse’s Case we summarily affirmed the PCC’s finding that six aggravating
factors applied, and ordered the attorney disbarred. See Morse’s Case, 160
N.H. at 549. Although a pattern of misconduct was not included among the
identified aggravating factors, we did not engage in any substantive analysis
regarding this factor. See id. Neither of the cases cited by the respondent
suggests that we cannot find a pattern of misconduct when an attorney lies to
the same client on a near-daily basis for a period of months. Thus, we agree
with the PCC that a selfish motive and a pattern of misconduct are aggravating
factors.
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The PCC also identified three mitigating factors: absence of a prior
disciplinary record, cooperation with the ADO’s investigation, and personal
problems. See Standards, supra § 9.32, at 448. We agree with the PCC that
the three mitigating factors identified above are present. In addition, after
reviewing several letters from former clients and colleagues submitted by the
respondent attesting to his character — which support the notion that the
respondent’s conduct in this case is anomalous in the context of his career —
we find that the respondent’s character and reputation is also a mitigating
factor.
The respondent argues that, other than “remoteness of prior offenses,”
every mitigating factor is present. We are not persuaded. We agree with the
PCC that the respondent did not make a timely good faith effort to make
restitution or to rectify the consequences of his misconduct; the respondent
was not inexperienced in the practice of law; there was not a material delay in
disciplinary proceedings, and no other penalties were imposed. Further since
we have found that the respondent acted with a selfish motive, the absence of a
dishonest or selfish motive cannot be a mitigating factor.
In addition, we disagree with the respondent that the mitigating factors
of physical and mental disability are present. The PCC identified the
respondent’s sleep apnea as a mitigating factor, though only as a personal
problem, rather than as a physical or mental disability. Whether the
respondent’s sleep apnea qualifies as a disability is material, because an
attorney’s medical condition is generally entitled to greater weight as a
mitigating factor when that condition can properly be characterized as a
disability, rather than a personal problem. See In re Thompson, 911 A.2d 373,
377 (Del. 2006); see also Standards, supra § 9.32, cmt. at 457-58. When a
mental health condition contributes to an attorney’s misconduct, that
condition can properly be characterized as a personal problem, rather than as
a disability. See Coddington’s Case, 155 N.H. 66, 71-72 (2007) (finding
attorney’s depression to be a personal or emotional problem, rather than a
disability).
The respondent argues that the hearing panel erroneously found the
respondent’s sleep apnea to be mild, rather than severe, and that, by adopting
this finding, the PCC did not give adequate weight to the respondent’s sleep
apnea as a mitigating factor. We disagree. The hearing panel carefully
considered the extensive medical evidence in the record, including the results
of two sleep studies conducted on the respondent. The panel noted that the
respondent’s expert witness opined that those studies suggested that the
respondent was suffering from mild sleep apnea during his representation of
the client. The hearing panel found that the respondent was likely suffering
from sleep apnea during the representation, and that this condition “may have
adversely affected some of Mr. Mesmer’s functioning.” The PCC considered
15
these findings, and determined that, although the respondent’s sleep apnea is
mitigating as a personal problem, his sleep apnea did not rise to the level of a
disability.
Here, we agree with the PCC that the respondent’s sleep apnea is a
personal problem, rather than a disability, because sleep apnea did not cause
the respondent’s most serious misconduct: his dishonesty to his client and the
court. See Sheridan’s Case, 148 N.H. 595, 601 (2002) (assuming without
deciding that attorney suffered from a health condition, but declining to find
that condition mitigating because the condition “did not account for much of
the misconduct underlying the ethical violations”); In re Lopes, 770 A.2d 561,
568-69 (D.C. 2001) (attorney’s mental health condition was mitigating as to
neglect, but not dishonesty, where the condition did not cause the dishonesty);
In re Peasley, 90 P.3d 764, 772, 777 (Ariz. 2004) (attorney’s “vision problems,
pain on his left side, periodic vertigo, and . . . difficulty focusing and
concentrating” not mitigating as to dishonesty toward tribunal because
attorney “did not establish a causal relationship between his physical problems
and his misconduct”); Standards, supra § 9.32, cmt. at 474 (“Courts often
point out that health conditions generally are not mitigating factors in reducing
a sanction for misconduct, particularly when no causal connection exists
between a disorder and the misconduct . . . .”). As noted above, the respondent
admitted that many of his misrepresentations to his client were intentional.
Further, the respondent’s own expert, Dr. Neal, was unable to opine that sleep
apnea caused the respondent to make the misrepresentations to the court.
We note that, although the respondent’s sleep apnea does not qualify as
a disability, his medical history and subsequent treatment are material factors
in our analysis. Shortly after the events at issue in this matter, the respondent
voluntarily ceased the practice of law, and sought treatment for his health
problems. Beginning in 2012, the respondent went to dozens of medical
appointments for problems including fatigue, swelling, and abdominal pain.
Although he was diagnosed with a number of conditions, the respondent’s
health did not markedly improve until after he was diagnosed with sleep apnea
in 2017. Following this diagnosis, the respondent began sleeping with a CPAP
(Continuous Positive Airway Pressure) machine, and has been healthier with
less fatigue. After a period of approximately 15 months not practicing law, in
March 2018, the respondent returned to practice handling a full caseload,
apparently without additional instances of misconduct. Thus, we take into
account the respondent’s struggles with his health during the events at issue
in this matter, as well as his representations that he has since addressed his
health problems, and is once again capable of handling the serious
responsibilities associated with the practice of law.
The PCC ultimately determined that it would be appropriate to “depart[]
down” from the baseline sanction of disbarment to a three-year suspension,
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with 18 months stayed, provided that the respondent pays for the costs of
investigating and prosecuting this matter, and engages in no further
professional misconduct. The PCC stated that this sanction “afford[s] weight to
the mitigating factors – including Mr. Mesmer’s condition,” and that “[t]he
additional stayed suspension will . . . provide protection to the public, and
deter Mr. Mesmer from committing future misconduct.”
The respondent argues that the PCC’s recommended sanction is
unnecessarily severe, and that he should instead receive a fully-stayed
suspension. He contends that the recommended sanction does not reflect the
significance of his sleep apnea as a mitigating factor. He also argues that the
recommended sanction is disproportionate when compared to the sanctions in
other attorney discipline cases, and that it would merely inflict punishment,
rather than serving the non-punitive purposes of attorney discipline. We
disagree.
We agree with the PCC that the mitigating factors here warrant a
downward departure from the baseline sanction of disbarment. The sanction
of a three-year suspension, with 18 months stayed, is consistent with our prior
cases in which attorneys with no prior disciplinary history have been
suspended for misconduct involving dishonesty. See, e.g., Grew’s Case, 156
N.H. 361, 367, 369 (2007) (two-year suspension); Feld’s Case, 149 N.H. 19, 30
(2002) (one-year suspension); Bruzga’s Case, 145 N.H. 62, 72 (2000) (one-year
suspension). The sanction of three years is appropriate because the
respondent’s misconduct involved dishonesty to both his client and the court,
as well as several other ethical violations.
In addition, the sanction takes the respondent’s sleep apnea into
account, and comports with the non-punitive purposes of attorney discipline.
The sanction gives weight to the respondent’s medical history and his
representations that he has addressed his health problems, learned from his
mistakes, and is again a fully-functioning attorney. However, the fully-stayed
suspension the respondent argues for would be inappropriate, as this court
has a duty to inform the public and the bar that misconduct involving
intentional dishonesty to clients and the court will be met with a significant
sanction. See Wolterbeek’s Case, 152 N.H. 710, 717 (2005). We agree with the
PCC that the respondent must serve a suspension that will require him to
petition for reinstatement, and receive an order from this court, before he is
permitted to return to practice. See Sup. Ct. R. 37(14)(b).
For the foregoing reasons, we order the respondent suspended for three
years, and we order him to pay all costs associated with the investigation and
prosecution of this matter. See Sup. Ct. R. 37(19). We further order that 18
months of the suspension shall be stayed, provided that the respondent pays
said expenses and engages in no further professional misconduct.
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So ordered.
HANTZ MARCONI and DONOVAN, JJ., concurred.
18