LD- In the Matter of Justin P. Nadeau, Esquire

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. LD-2022-0009, In the Matter of Justin P.
Nadeau, Esquire, the court on April 16, 2024, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). On December 8, 2022, the Supreme Court Professional
Conduct Committee (PCC) filed a petition recommending that the respondent,
Justin P. Nadeau, be disbarred. See Sup. Ct. R. 37A(III)(d)(2)(D)(iv). We order
the respondent disbarred.

I. Procedural Background

The conduct code violations at issue arise from the respondent’s
representation of Shawn Fahey. An investigation into the respondent’s conduct
began after Attorney Christopher Hawkins, who represents Fahey in a civil
action brought against the respondent, filed a referral with the Attorney
Discipline Office (ADO) on April 30, 2019. The ADO issued a notice of charges
on December 6, 2019. The ADO subsequently uncovered evidence of trust
account malfeasance and evidence of misconduct relating to the respondent’s
role as treasurer of a charity, prompting the ADO to move to amend the notice
of charges on January 7, 2021. In addition, the respondent’s behavior
following notification of the disciplinary investigation into the Fahey matter led
to additional charges that the respondent failed to preserve evidence, falsified
evidence provided to the ADO, and failed to comply with discovery and pre-trial
orders.

Following a seven-day evidentiary hearing, a panel of the Hearings
Committee issued a 96-page report on January 4, 2022, finding that the
respondent violated nine New Hampshire Rules of Professional Conduct
(Rules). Following a two-day sanction hearing, the hearing panel issued a
report recommending disbarment. In October 2022, the PCC held oral
argument on both the findings of Rules violations and the recommended
sanction.

The PCC concluded that the record supported by clear and convincing
evidence the factual findings set forth in the hearing panel report. See Sup. Ct.
R. 37A(III)(d)(2)(c). The PCC also found, by clear and convincing evidence, that
the respondent had violated Rules 1.5, 1.7, 1.8, 1.15, 3.3, 3.4, 5.3, 8.1, and
8.4. After considering the duties violated, the respondent’s mental state, and
the actual or potential harm caused by his conduct, the PCC found that the
baseline sanction was disbarment and, after considering the aggravating and
mitigating factors, concluded that the mitigating factors did not warrant a
downward departure to a lesser sanction. The PCC filed its recommendation
with this court, as required for any recommended sanction greater than a
suspension of six months. See Sup. Ct. R. 37(16)(b). Thereafter, the PCC filed
the record of its proceedings.

II. Analysis

The respondent asserts that: (1) the PCC’s findings of Rules violations
are not supported by clear and convincing evidence; (2) the recommended
sanction is disproportionate and does not serve the purposes of attorney
discipline; and (3) the recommended sanction is not in keeping with this court’s
prior cases. 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).

A. Rules Violations

We first consider the PCC’s finding by clear and convincing evidence that
the respondent violated the Rules. See Sup. Ct. R. 37A(III)(d)(2)(c). The PCC
found that the respondent violated Rules 1.5, 1.7, 1.8, 1.15, 3.3, 3.4, 5.3, 8.1,
and 8.4. These violations were based upon clear and convincing evidence that
the respondent

engag[ed] in a business transaction with a client after establishing
an attorney-client relationship[,] fail[ed] to obtain a written,
informed waiver of conflicts of interest, . . . fail[ed] to provide a
written statement to the client of the division of fees resulting from
settlement of a contingent-fee litigation matter[,] . . . commingl[ed]
personal funds with client funds and [was] out of trust in multiple
client matters[,] . . . submitt[ed] false Trust Account Compliance
Certificates for multiple reporting periods stating he was never out
of trust in his client trust account[,] . . . fail[ed] to supervise the
conduct of his bookkeeper with respect to the transfer of funds in
and out of client trust accounts[,] . . . sign[ed] his wife’s name to a
legal instrument without her authorization, and . . . through
multiple acts of fraud, deceit, and misrepresentation[,] [and,]
[f]ollowing notice of the disciplinary investigation, . . . fail[ed] to
preserve evidence, falsif[ied] evidence provided to the ADO, and
fail[ed] to comply with discovery and pre-trial orders.

Because we agree with the PCC that the record supports — by clear and
convincing evidence — that the respondent violated Rules 3.4(b) and 8.1(a),

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and because we find that these violations warrant disbarment, we need not
address the other violations. See Budnitz’ Case, 139 N.H. 489, 490 (1995).

1. Rules 3.4(b) and 8.1(a)

Rule 3.4(b) provides that a lawyer “shall not . . . falsify evidence.” N.H. R.
Prof. Conduct 3.4(b). Rule 8.1(a) provides that a lawyer “in connection with a
disciplinary matter, shall not . . . knowingly make a false statement of material
fact.” N.H. R. Prof. Conduct 8.1(a).

After the disciplinary matter was initiated, the respondent twice agreed to
preserve electronic data relating to Fahey’s representation. The first time he
did so was in a May 8, 2019 letter to Hawkins. The second time was
approximately one year later, in an email to disciplinary counsel. During the
course of this disciplinary matter, the respondent produced paper files
including three conflict of interest letters dated October 24, November 29, and
December 13, 2018, that the respondent purportedly sent to Fahey. The
respondent later produced a letter dated January 15, 2019, enclosing a
“settlement summary,” and a March 13, 2019 letter attaching an
“Acknowled[]gment and Agreement” dated March 12, 2019 (collectively “the
disputed documents”). (Capitalization and underlining omitted.)

The ADO four times requested that the respondent produce these
documents in their native electronic formats, which is the original source
format of a document, in this case, the Microsoft Word document. Ultimately,
the ADO moved to compel production of the disputed documents in their native
format. For the first time, the respondent informed the ADO that the
documents were produced in the form of a Portable Document Format (PDF),
rather than Word format, because it was his “office practice” to delete the Word
versions of client letters after they were printed, mailed, and saved as PDFs.
The hearing panel granted the ADO’s motion to compel on January 21, 2021.

In response, in lieu of producing the native electronic files, the
respondent produced PDF files purporting to show screenshots of the metadata
associated with the disputed documents. These showed “created” and
“modified” dates for each PDF that matched the face date of the document.
They also included a screenshot of Word metadata for one document, but the
underlying PDF files and Word file from which the metadata screenshots were
taken were not produced. This prompted the ADO to move to compel the
production of the respondent’s computers so that they could be forensically
examined for evidence regarding the disputed documents. The motion was
granted.

Because the respondent had disposed of his law office computer, the
paralegal computer and the Nadeau fileserver were delivered to the offices of
James Berriman, who had been engaged as an expert by the ADO to determine

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whether the disputed documents had actually been created on or near their
“face dates” (that is, the date that appears on the letters themselves), or
whether they were created later, and then backdated. Berriman was retained
by the ADO to: (1) examine the disputed documents to assess their
authenticity; (2) conduct forensic examinations of the computers produced by
the respondent for evidence relating to the origin, history, and authenticity of
the disputed documents; and (3) provide a report summarizing his findings and
conclusions to a reasonable degree of forensic certainty.

The ADO submitted Berriman’s report into evidence, and Berriman
testified at the hearing in this matter. Berriman made a number of findings
and reached conclusions regarding the disputed documents, each of which
supports the hearing panel’s factual findings that: (1) the disputed documents
that the respondent produced to the ADO contain false face dates to suggest
that the respondent sent the documents to Fahey during the course of his
representation of her, but which, in fact, were created after the ADO
investigation was initiated; (2) in June 2019, the respondent downloaded,
installed, ran, and later deleted two applications whose specific purpose is to
alter metadata; (3) in February 2021, the respondent created multiple versions
of altered screenshots of the properties windows for the PDFs of the disputed
documents and produced to the ADO screenshots showing altered “external”
metadata with “created” dates matching the face dates for each disputed
document; (4) the PDFs themselves contained “internal” metadata later in time
than the “external” metadata; and (5) this inconsistency in internal and
external metadata “does not exist in the absence of backdating efforts.” (Italics
omitted.)

Based upon this evidence and upon the fact that there are no references
in any of the thousands of text messages exchanged between the respondent
and Fahey to any of the five disputed documents, the hearing panel found that
the respondent had repeatedly produced false documents to the ADO and
engaged in a deliberate, multi-year effort to deceive the disciplinary authority.

The PCC found that the respondent violated Rules 3.4(b) and 8.1(a) by,
inter alia, failing to preserve evidence and by falsifying evidence provided to the
ADO. The hearing panel specifically found that the respondent violated Rules
3.4(b) and 8.1(a) when he backdated documents and produced them to the
ADO in his defense, and thereafter altered metadata in an attempt to make
such documents appear authentic. These conclusions are supported by clear
and convincing evidence. The respondent’s argument that there was no
evidence that he destroyed or spoliated evidence is belied by the record, as is
the respondent’s suggestion that he was somehow unfairly denied the ability to
defend himself.

Regarding the Rule 8.1(a) violation, we note that the respondent devotes
a considerable number of pages in his brief, without citation to the record, to

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arguing that the PCC relied on a flawed expert report that should not have
been admitted. On May 11, 2023, we granted the ADO’s motion to strike pages
24-27 of the respondent’s brief, and, accordingly, do not address the
arguments presented there. We also conclude that the respondent’s argument
that modifying evidence does not violate Rule 8.1(a)’s proscription against
making “a false statement of material fact” is without merit, and warrants no
further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

B. Sanction

We retain authority to determine the sanction for a violation of the rules
governing attorney conduct. See O’Meara’s Case, 164 N.H. 170, 176 (2012). In
determining a sanction, we focus not on punishing the offender, but rather on
protecting the public, maintaining public confidence in the bar, preserving the
integrity of the legal profession, and preventing similar conduct in the future.
See Salomon’s Case, 171 N.H. at 706. We judge each attorney discipline case
upon its own facts and circumstances, taking into account the severity of the
misconduct and any mitigating circumstances appearing in the record. Id.
“The gravity of unprofessional conduct is not determined solely by the number
of rules broken or by the particular rules violated, but is determined largely
with reference to the attorney’s behavior.” Morgan’s Case, 143 N.H. 475, 477
(1999) (quotation omitted).

The factors we consider when imposing sanctions after a finding of
lawyer misconduct are: (1) the duty violated; (2) the lawyer’s mental state; (3)
the potential or actual injury caused by the lawyer’s misconduct; and (4) the
existence of aggravating or mitigating factors. See Salomon’s Case, 171 N.H. at
706. When applying these factors, we first categorize the respondent’s
misconduct and identify the baseline sanction. See Conner’s Case, 158 N.H.
299, 303 (2009). Once the baseline sanction is determined, we then consider
the effect of any aggravating or mitigating factors on the ultimate sanction.
Salomon’s Case, 171 N.H. at 706.

Regarding the first prong, we agree with the PCC that the respondent
violated his duties to the public and the legal profession. He failed to maintain
the integrity of the profession when he failed to act with honesty and integrity
and, as the hearing panel found, engaged in “a deliberate, multi-year effort to
deceive the disciplinary authority.” This conduct included failing to preserve
evidence and falsifying evidence provided to the ADO.

Regarding the second prong, we likewise agree with the PCC that the
respondent’s mental state was “knowing and intentional.” The respondent took
many actions in the course of his “deliberate, multi-year effort to deceive the
disciplinary authority” with the objective of covering up the fact that he had
violated the conflict of interest rules during his representation of Fahey. He
fabricated, back-dated, and produced to the ADO three letters to Fahey during

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the ADO’s investigation into the conflict of interest matter. Later, he altered
metadata to conceal his original fabrication by changing the “created dates” on
these letters. He downloaded special software to change metadata and
researched how to alter metadata. These actions demonstrate intentional,
deliberate, and calculated conduct.

Turning to the third prong, we consider the actual or potential injury
caused by the respondent’s misconduct and agree with the PCC that the
respondent’s conduct in obstructing the disciplinary process could undermine
the public’s trust in the legal profession. As a member of the PCC observed at
oral argument before the PCC, “the Berriman Report and the spoliation of
evidence, in my mind . . . is one of the most significant violations I have seen in
decades of practice before the ADO before joining this committee. To create
evidence and submit it to the disciplinary authority, it’s difficult for me to
imagine something worse for a lawyer to do.” We conclude that the
respondent’s multi-year effort to deceive the disciplinary authority is itself
sufficient to warrant disbarment. See Budnitz’ Case, 139 N.H. at 493
(explaining that “[l]ying to or attempting to mislead the committee in an
attempt to cover up misdeeds evidences serious disregard for the institutions
the respondent as an attorney has sworn to protect and uphold” (quotation and
brackets omitted)). Before deciding on the ultimate sanction, however, we
must review any aggravating and mitigating factors. Salomon’s Case, 171 N.H.
at 706.

The PCC found that the aggravating factors include, among other things,
the respondent’s: (1) dishonest or selfish motive; (2) pattern of misconduct; (3)
multiple violations of the Rules; (4) bad faith obstruction of the disciplinary
proceeding; (5) submission of false evidence, false statements, or other
deceptive practices during the disciplinary process; and (6) refusal to
acknowledge the wrongful nature of his conduct. The PCC also found the
following mitigating factors: (1) no prior disciplinary violations; (2) evidence of
the respondent’s positive reputation in the community and character; (3) the
respondent has contributed to the legal profession as a whole and provided
evidence of selfless assistance to many clients; and (4) the respondent suffered
from personal and/or emotional problems during the relevant time period that
may have contributed to his misconduct.

We agree that these aggravating and mitigating factors apply, and we
conclude, as did the PCC, that the proper sanction is disbarment. Although
there are some mitigating factors present, we conclude that the aggravating
factors far outweigh the mitigating factors, and that the mitigating factors do
not warrant a downward departure to a sanction other than disbarment.

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 For the foregoing reasons, we order the respondent disbarred, and we
order him to pay all costs associated with the investigation and prosecution of
this matter. See Sup. Ct. R. 37(19).

So ordered.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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