Thus, in contrast to Judge Coffey's representations, the Trust was funded with a significant portion of the Coffeys' assets, real and personal. Accordingly, we concur with the JCC's implicit finding that Judge Coffey was less than forthright, see AJS Study, supra at 82 (explaining how consideration should be given to whether a judge has offered an unlikely defense), and find that she made evasive and misleading statements to the JCC. SeeFitzpatrick's Case, 132 N.H. 211, 218 (1989) (finding that an attorney who attempts to mislead the PCC cannot be found to have fully cooperated); see alsoBasbanes' Case, 141 N.H. at 7 (“We cannot give the respondent credit for cooperating with the disciplinary process when he misle[d] the referee about the extent of his misconduct.”). We therefore reject Judge Coffey's argument that she “completely cooperated” with the JCC.

O'Meara's false testimony demonstrated a "serious disregard" for the very institutions that he has sworn to protect and uphold. Fitzpatrick's Case, 132 N.H. 211, 217, 566 A.2d 157 (1989). We have previously disbarred attorneys for engaging in similar misconduct.

[1, 2] In reviewing the referee's findings in an attorney discipline case, we must determine whether a reasonable person could reach the same conclusion as the referee based upon the evidence presented at the hearing. Bourdon's Case, 132 N.H. 365, 370, 565 A.2d 1052, 1055 (1989); Fitzpatrick's Case, 132 N.H. 211, 214, 566 A.2d 157, 159 (1989). If we determine that the record supports the referee's findings and rulings, we then decide on an appropriate sanction to impose against the respondent. Wehringer's Case, 130 N.H. 707, 710, 547 A.2d 252, 253 (1988), cert. denied, 109 S. Ct. 1103 (1989).

[1, 2] In reviewing the referee's findings, "our only function is to determine whether a reasonable [person] could have reached the same decision as the [referee] on the basis of the evidence before him." Sargent Lake Ass'n v. Dane, 118 N.H. 720, 722, 393 A.2d 559, 561 (1978); see also Fitzpatrick's Case, 132 N.H. 211, 214, 566 A.2d 157, 159 (1989). This review standard requires that any "conflicts as might be found in the testimony, questions about the credibility of witnesses, and the weight to be given to testimony are for the [referee] to resolve."

We cannot give the respondent credit for cooperating with the disciplinary process when he misleads the referee about the extent of his misconduct. See Fitzpatrick's Case, 132 N.H. 211, 215, 566 A.2d 157, 161 (1989). In cases where cooperation has been treated as a mitigating factor, the respondent's cooperation has been total and complete.

Lying 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, and disbarment is the only sanction that will truly protect the public and maintain public confidence in the bar under these circumstances.Fitzpatrick's Case, 132 N.H. 211, 217, 566 A.2d 157, 161 (1989). Arron E. Budnitz is hereby disbarred forthwith.

We think it inappropriate to require an attorney to maintain a "passive" or "nominal" representation of a client, especially in light of the mandate contained in Rule 1.3 requiring lawyers to diligently represent their clients. Cf. Flint's Case, 133 N.H. 685, 687, 690, 582 A.2d 291, 292-93 (1990) (lawyer neglectfully represented clients and did not act as an advocate); Fitzpatrick's Case, 132 N.H. 211, 213, 566 A.2d 157, 158-59 (1989) (lawyer neglected legal matter and failed to diligently pursue matter). During oral argument, the committee took the position that in regard to Rule 1.16(d), Wood did everything that was required, except that he should have told Heritage that he would publicly oppose rezoning the McQuade site. While this may have been a more prudent course of conduct for Wood to follow, we cannot say that it is clearly required under Rule 1.16(d).

Bourdon's Case, 132 N.H. at 370, 565 A.2d at 1055 (quotation omitted). The referee, who is in the best position to weigh the testimony of the witnesses, Fitzpatrick's Case, 132 N.H. 211, 215-16, 566 A.2d 157, 160 (1989), found the testimony of Sara B. to be compelling, and that of the respondent to be not credible. He also credited the expert testimony of Dr. Nordgren over that of Dr. Astarjian. As a result, the referee found, by clear and convincing evidence, that the respondent had engaged in professional misconduct when he sexually harassed and sexually assaulted Sara B. The record clearly supports that finding. The respondent next contends that his inappropriate conduct should be mitigated because his actions flowed from an earlier head injury, and not from any "considered intention to take advantage of vulnerable persons."

Accordingly, in general, neither the usual mitigating factors, see note 4, supra, nor subsequent proper bookkeeping practices or client satisfaction can overcome the presumption that for "[t]his offense against common honesty," Wilson, supra, 81 N.J. at 460, 409 A.2d at 1157, disbarment will be the appropriate sanction. See, e.g., Attorney Grievance Commission v. Cockrell, 304 Md. 379, 389-93, 499 A.2d 928, 933-34 (1985) (rejecting economic instability of attorney's personal and professional life as a defense to change of use of escrow accounts for personal purposes); Fitzpatrick's Case, 132 N.H. 211, 216-18, 566 A.2d 157, 161 (1989) (citing Eshleman's Case, 126 N.H. 1, 6, 489 A.2d 571, 574 (1985) (mitigating factors do not necessarily preclude disbarment)); Connolly's Case, supra, 508 A.2d at 1057-58 (factors such as attorney's cooperation in audit of trust accounts, ill health and pressures of work and illness and death among friends and relations more appropriate for consideration upon attorney's application for readmission to the bar). While we recognize that the sanction for intentional misappropriation of client funds will be harsh in comparison to sanctions for other disciplinary violations involving conduct some may view as roughly equivalent misconduct, see, e.g., Reback, supra, 513 A.2d at 226 (imposing six months suspension for filing falsely signed court documents and lying to client); In re Hutchinson, 534 A.2d 919 (D.C. 1987) (en banc) (one-year suspension for lying to a federal law enforcement agency), our concern is that there not be an erosion of public confidence in the integrity of the bar.