Astles' Case

• Decision Date: 02 August 1991
• Docket Number: No. LD-90-006,LD-90-006
• Citation: 594 A.2d 167,134 N.H. 602
• Parties: ASTLES' CASE
• Court: New Hampshire Supreme Court

Page 167

594 A.2d 167

134 N.H. 602

ASTLES' CASE

No. LD-90-006.

Supreme Court of New Hampshire.

Aug. 2, 1991.

Roussos, Hage and Hodes P.A., Manchester (Paul W. Hodes, orally and on the brief, and Judith Fox Arsenault, on the brief), Bar Counsel, for Committee on Professional Conduct.

Orr and Reno P.A., Concord (Peter W. Mosseau, on the brief and orally), for respondent, Bertram D. Astles.

BROCK, Chief Justice.

On May 2, 1990, the Committee on Professional Conduct (Committee) filed a petition with this court seeking disbarment of the respondent, Bertram D. Astles. See Sup.Ct.R. 37(13)(a). Soon thereafter, the respondent filed his answer, whereupon we referred the petition and answer to a Referee (Bean, J.) for a hearing and the filing of a written report containing findings of fact and rulings of law. See id. at (13)(e). In October, 1990, the referee submitted his report, wherein he found that the respondent had violated the following Rules of Professional Conduct: 8.4(a) (violation of professional conduct rules), 8.4(c) (engaging in acts of misrepresentation and dishonesty), and 8.1(a) (knowingly making false statements in connection with a disciplinary matter). Based upon the referee's report, the Committee requests that this court order the disbarment of the respondent.

In response to this request, the respondent challenges neither the referee's rulings that there were violations nor the findings of fact which support those rulings. His only concern is with the severity of the discipline requested by the Committee. He argues that disbarment is "overly harsh" in light of the circumstances surrounding the violations and suggests alternative sanctions which he asserts will adequately protect the public and prevent the recurrence of similar violations. Fundamental to the question of sanctions is an examination of the gravity of the respondent's unprofessional conduct, as determined by his behavior, see Flint's Case, 133 N.H. 685, 689, 582 A.2d 291, 293 (1990), and, thus, we turn to the respondent's actions that are the basis for these proceedings.

In June, 1987, after executing a note and mortgage to the Concord Savings Bank, the respondent and his wife purchased a home in Hopkinton. Less than a year later, the Astleses, who had begun to experience personal financial difficulties, sought a second mortgage on their home from The Money Store. The loan application and the mortgage were signed only by the respondent, but he signed using two different signatures, one for himself and one for his wife. Although Mrs. Astles stated that she knew about the second mortgage and that she had authorized her husband to sign for her, the respondent never informed The Money Store of this authority.

In September, 1989, the respondent sought yet a third mortgage on the couple's home from G.P. Finance Company. The loan application contained no indication of the second mortgage and, like the prior application, was signed twice by the respondent, once with his regular signature and once, in different handwriting, with his wife's signature. Unlike the application to The Money Store, however, Mrs. Astles was unaware of the proposed mortgage with G.P. Finance, and, hence, had not authorized her husband to sign for her. On receiving the application, G.P. Finance requested that Attorney J. Leonard Sweeney, Jr., process the loan and arrange for a closing. During a title search of the Astleses' property, Elaine Sweeney, Attorney Sweeney's wife and paralegal, discovered the undischarged second mortgage from The Money Store. When confronted with this discovery, however, the respondent knowingly lied to Mrs. Sweeney and told her that the second mortgage had been discharged, and that he had simply failed to record the original discharge.

This misrepresentation was the first of several made during the respondent's attempts to acquire financing from G.P. Finance. At the closing, the respondent produced a purported properly executed power-of-attorney that contained the signatures of his wife and a justice of the peace, and that authorized the respondent to sign and act on behalf of his wife. The respondent later admitted to the Committee, however, that, he had, in fact, signed his wife's name, without her knowledge, and that the justice of the peace was a fiction whom he had created. When questioned at the closing by Mrs. Sweeney about the authenticity of the power-of-attorney, the respondent reinforced the misrepresentation by telling her that the document had been properly executed. Mrs. Sweeney then contacted G.P. Finance to inquire if they would accept a power-of-attorney, and the company responded that, without Mrs. Astles's presence at the closing, the loan could not be authorized.

The matter was ultimately referred to the Professional Conduct Committee. The Committee forwarded the complaint to the respondent, who answered the allegations by letter to the Committee. In this letter, the respondent, rather than taking the opportunity to admit the error of his ways, continued his misrepresentations by stating that his wife had signed the mortgage to The Money Store as well as the power-of-attorney, that his wife's signature had changed, that his wife knew of The Money Store mortgage, and that he had asked his wife for the power-of-attorney.

Philip T. McLaughlin, Esq., as chairperson of the Committee hearing panel, then sent a letter to the respondent asking specifically about the authenticity of the power-of-attorney. The respondent, again, answered by letter and continued to maintain his earlier misrepresentations. He falsely informed the Committee that his wife had, in fact, signed the power-of-attorney in front of a justice of the peace, whose name, the respondent claimed, she could not...