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Commonwealth of Massachusetts

No. BD-2001-034

In the Matter of James W. Carpenito

THE STATE OF NEW HAMPSHIRE
SUPREME COURT

In Case No. LD-98-001, In the Matter of James W. Carpenito, the court upon May 24, 2001, made the following order:

The court adopts the report of the referee (Pappagianis, J., retired), and, accordingly, hereby suspends James W. Carpenito from the practice of law in the State of New Hampshire for a period of one year for violating the following Rules of Professional Conduct:

(1) Rules 3.3(a)(1) and 3.3(a)(3), by knowingly making a false statement of material fact to the Board of Tax and Land Appeals and by offering evidence that he knew to be false;

(2) Rule 3.3(a), by unlawfully obstructing the access of opposing counsel to evidence in a case;

(3) Rule 4. 1 (a), by knowingly making false statements of material fact to opposing counsel in a case; and

(4) Rule 8.4(a), by violating rules of professional conduct.

The suspension will commence immediately.

In order to be reinstated following the one-year suspension, Mr. Carpenito shall comply fully with Supreme Court Rule 37(12), including evidence of his satisfactory completion of the Multistate Professional Responsibility Examination.

Mr. Carpenito is hereby assessed all expenses incurred by the Committee on Professional Conduct in the investigation and prosecution of this matter. See Supreme Court Rule 37(16).

Brock, C.J., and Nadeau, Dalianis, and Duggan, JJ., concurred.

Howard J. Zibel,
Clerk


In Case No. LD-98-001, In the Matter of James W. Carpenito, the court upon May 24, 2001, made the following order:

Date of clerk's notice of decision- May 25, 2001

Distribution:
James L. DeHart, Esquire
James W. Carpenito, Esquire
Honorable George S. Pappagianis
Edgar D. McKean, III, Esquire
Stephen L. Tober, Esquire
Laura Mitchell, Supreme Court
File


THE STATE OF NEW HAMPSHIRE
SUPREME COURT

In Case No. LD-98-001, In the Matter of James W. Carpenito, Esq., the court upon August 18, 2000, made the following order:

A copy of the referee's report shall be sent to the parties. On or before September 17, 2000, the parties shall inform the court whether they accept the report of the referee, or wish to be heard thereon. If either party wishes to be heard on the referee's report, that party shall inform the court whether the hearings before the referee should be transcribed prior to briefing and oral argument.

This order is entered by a single justice (Dalianis, J.). See Rule 1.

Howard J. Zibel,
Clerk

Date of clerk's notice of decision: August 18, 2000

Distribution:

James L. DeHart, Esquire
Honorable George S. Pappagianis
Edgar D. McKean, III, Esquire
Stephen L. Tober, Esquire
File


STATE OF NEW HAMPSHIRE
SUPREME COURT

LD-98-001, In the Matter of James W. Carpenito, Esq.

Referee's Report

McKean, Mattson and Latici, .P.A. of Gilford (Edgar D. McKean, III) for the committee on professional conduct. Tober Law offices, P.A. of Portsmouth (Stephen L. Tober) for the respondent.

Report of Judicial Referee

The Supreme Court Committee on Professional Conduct (committee) petitioned the supreme court to suspend the respondent, James W. Carpenito, from the practice of law for one year based on his violation of New Hampshire Rules of Professional Conduct (Rules) 3.3(a)(1), 3.3(a)(3), 3.4(a), 4.1(a), 8.4(c), and 8.4(a). Petitioner and respondent waived a hearing. They filed an agreed statement of facts, and each filed a "Statement of Facts and of Law."

The parties appended to the agreed statement of facts a copy of an opinion of the Concord District Court (Robbins, J.) in the case of State v. James Carpenito. The State had filed four misdemeanor complaints against respondent, charging him with unsworn falsification under RSA 641:13. The district court dismissed all the complaints. Petitioner's "Statement of Facts and of Law" withdrew Rule 8.4(c) from consideration, "{b}ased on Judge Robbins' findings."

Respondent represented certain taxpayers before the Board of Tax and Land Appeals (BTLA). Counsel for the Town of Freedom moved to dismiss, saying that the taxpayers lacked standing to appeal. A hearing on the motion to dismiss was scheduled for July 30, 1997.

Respondent filed an affidavit of Marshall A. Brem in support of the taxpayers' standing to appeal. The affidavit showed-the signature of Mr. Brem as affiant, and the signature of respondent as notary public. The acknowledgement was dated July 18, 1997, and the affidavit showed a notation that respondent's office had faxed the affidavit on the same day. During the July 30 hearing, respondent showed the BTLA, but did not submit into evidence, an affidavit of Mr. Brem. The affidavit showed the signature of Mr. Brem as affiant and the signature of respondent as notary public. The acknowledgement was dated July 18, 1997, and the affidavit showed a notation that respondent's office had faxed the affidavit on July 25, 1997. The affidavit faxed on July 18 and the affidavit faxed on July 25 were identical in the numbering of the paragraphs, in the wording, and appeared to be copies of each other.

Counsel for the Town noted that the signatures of Mr. Brem and of respondent on the affidavit faxed on July 25 were not identical to their signatures on the affidavit faxed on July 18. In response to questions from the BTLA, respondent said twice that the affidavit faxed on July 25 was executed by Mr. Brem in his presence. The BTLA requested respondent to submit the affidavit faxed on July 25. Respondent refused to submit the affidavit, refused to go on record, and left the hearing.

On the next day, July 31, respondent mailed to the BTLA a motion to reopen or correct the record. Attached to the motion was a copy of the affidavit faxed on July 25. He said in his motion that the affidavit faxed on July 25 was a "file duplicate" of the affidavit faxed on July 18; that he had not submitted the affidavit faxed on July 25 into evidence at the July 30 hearing and he had not intended to do so. He said he was mailing it to the BTLA with his motion to reopen or correct the record because the BTLA had inquired about it and because he thought that the BTLA had asked him at the hearing, and he had agreed, to check his records regarding a possible "second affidavit." He said that he was confused during the July 30 hearing because he did not know at that time that a "second affidavit" existed.

He also said in his motion that he had told the BTLA that "the acknowledgement had been received in his physical presence. Counsel corrects this misstatement. The attestation and acknowledgement were not received in the physical presence, but were instead received in the telephone presence only after the witness and undersigned counsel had received, reviewed, and discussed several drafts of the affidavit. Although the circumstances of the execution and acknowledgement of the affidavit are believed to be immaterial and irrelevant, upon further review, recollection and discovery counsel for the Taxpayer {sic} gives this notice and requests a correction of the record." He said that the substantive statements in the affidavit regarding the tax appeal were accurate and truthful. The Concord District Court had found this to be so. Opinion @ 6.

Respondent says that he acted immediately to correct his misstatements to the BTLA. He says that at the hearing, he "was suffering, and continues to suffer, from various symptoms of stress, for which he is under the care of a physician and taking prescription medication"; that his medical symptoms may have caused him to be "confused, and to not fully understand and comprehend the Board's questions and concerns regarding Mr. Brem's affidavit"; and that he "takes full responsibility for his errors and misstatements, and completely regrets what transpired." Agreed Statements of Facts, paras. 14-18.

Respondent says in mitigation that he cooperated fully with the committee and that he has a reputation for good character. He offers as other mitigating factors in his defense that he did not have a dishonest or selfish motive in his dealings with the BTLA, that he had personal or emotional problems at or about the time of the July 30 hearing, that he made timely and good faith efforts to rectify the consequences of his conduct, and that he was remorseful. Certain witnesses testified during the criminal case in the Concord District Court that the BTLA did not require witness statements to be acknowledged and rarely paid attention to acknowledgements. Respondent says that, because acknowledgements were immaterial to the BTLA, he had no dishonest or selfish motive in misstating twice that the affiant was in his presence when the acknowledgement was taken. But this position is undermined in two respects. First, the agreed statement of facts discloses that the BTLA wanted the affidavit faxed on July 25 submitted into evidence, and wanted the issue of affidavits and of the acknowledgement placed on the record. Second, the BTLA considered the validity of the acknowledgement to be so material to the issue before it that it filed a complaint against respondent with the committee. See also Budnitz's Case, 139 N.H. 489 (1995).

Respondent says that his medical symptoms may have caused him to be confused about the existence of a second affidavit at the July 30 hearing. The issue at the hearing was not whether there was a second affidavit. The issue was whether the affidavits faxed on July 18 and July 25 were acknowledged by the affiant in respondent's presence. See Otis' Case, 135 N.H. 612, 618-619 (1992); St. Pierre's Case, 113 N.H. 198 (1973). Neither the district court opinion nor the committee's petition mentions that respondent raised personal or emotional problems as a mitigating circumstance.

Respondent says he made timely and good faith efforts to rectify the consequences of his conduct. Although respondent wrote to the BTLA on the day after the hearing that he had misstated that the affiant was present when the acknowledgement was taken, this admission came after the BTLA had questioned his assertions at the hearing that the affiant had been in his presence. Efforts to rectify consequences of conduct are timely, in good faith, and more acceptable in mitigation when the efforts are volunteered before the misstatements are suspected or known by others. Morgan's Case, 143 N.H. 475 (1999).

Respondent says he is remorseful and has substantiated his remorse by taking "full responsibility for his errors and misstatements and completely regrets what transpired. In fact, Attorney Carpenito has sold and conveyed his law practice. Currently, he is not engaged in the practice of law . . .” Respondent's Statement of Facts and of Law @ 9.

As the district court opinion stated: Respondent had "created a false impression about the circumstances surrounding his acknowledgement of . . . affidavits", p.5, and "what he did in 3 of these cases . . . {was} . . . not consistant {sic} with the high course of conduct expected of all members of the N.H. Bar . . .”, p.3.

"The privilege of practicing law does not come without the concomitant responsibility of truth, candor, and honesty . . . {N}o single transgression reflects more negatively on the legal profession than a lie . . .” Nardi's Case, 142 N.H. 602, 606 (1998); Cohen's Case, 143 N.H. 169 (1998).

The judicial referee finds by clear and convincing evidence that respondent violated Rules 3.3 (a)(1) and 3.3 (a)(3) by knowingly making a false statement of material fact to the BTLA and by offering evidence that he knew to be false, specifically that the affiant was in his presence when he took the acknowledgement; 3.3(a) by unlawfully obstructing counsel for the town of Freedom access to evidence by refusing to submit into evidence the affidavit faxed on July 25; 4.1(a) on knowingly making false statements of material fact to counsel for the Town of Freedom by saying that the affiant had been in his presence when he took the acknowledgement; and 8.4(a) by violating rules of professional conduct. See generally Carpenito's Case, 139 N.H. 168 (1994).

The focus in making an appropriate sanction for attorney misconduct "is not punishment, but protecting the public, maintaining public confidence in the bar, preserving the integrity of the legal profession, and preventing similar misconduct in the future." Bruzga's Case, (N.H Sup. Ct. 4-12-2000).

The judicial referee recommends that respondent be suspended from the practice of law for one year and that he be assessed all expenses incurred by the committee in the investigation and prosecution of this matter.

Date: August 3, 2000

Respectfully submitted
____________________________________
Honorable George G. Pappagianis, Referee

cc. Howard J. Zibel, Clerk of Supreme Court
Edward D. McKean, III, Esquire
Stephen L. Tober, Esquire
James L. DeHart, Esquire
Administrator of the Professional Conduct Committee

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record before the Court.



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