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Bar Journal - June 1, 2001

Lawyer Discipline in New Hampshire

By:

INTRODUCTION

More than a century ago, Alexander Kinglake said that the following words should be inscribed over the front door of every church in England:

"Important, if true."

As with most aphorisms, the conditional irony encapsulates a kernel of truth to be remembered with a smile.

The millennium year was one of hard truths and little witticism for the New Hampshire Judiciary and Bar. New Hampshire's Supreme Court, made vulnerable by a series of far reaching and unpopular decisions, was rocked to its foundation by a series of sensational allegations of individual wrongdoing. These led to the forced resignation of Justice Stephen Thayer and threatened three other sitting justices to varying degrees. The climactic July 12, 2000 impeachment of Chief Justice David Brock by the New Hampshire House led to a long, painful Senate trial before acquittal on October 10, 2000 and this came only after weeks of television coverage of judges and court personnel testifying, sometimes in direct contradiction of one another. Reputations and careers tottered under examination by skeptical legislators, an image both startling and sad. Longstanding customs gone awry were held up to stark unflattering scrutiny. Life savings vanished with the expense of outside counsel. Uneasy apprehension of what this might portend dominated worried discussions among lawyers through the summer and fall.

Meanwhile, a vocal school of opinion already making steady progress in New Hampshire gained new adherents to the view that attorney ethics is a dubious proposition at best. Indeed, the supposed endemic amorality of lawyers was counted one of the root causes of recent judicial woes. This school has given the Supreme Court Professional Conduct Committee (hereinafter the PCC) pride of place in what has come to be known as the "old boy network" with the assigned function of lubricating the passage of a privileged minority of well-connected lawyers through a flawed system. A small number of amateur "watch dogs," with imaginations left no less fertile by being uninformed, has buoyed this sentiment in the press.

Centered on the House Judiciary Committee and its formidable chairman, Henry Mock, a substantial bloc of legislators in the New Hampshire House of Representatives has now brought forward a number of "reforms" related to judicial tenure, pay, oversight, and responsibility. One proposition is to replace the PCC with a legislative body or, more probably, to subordinate Bar discipline to statutory or direct legislative control. The founding premises of this movement are that, while attorney discipline is important, the supposition that we properly discipline ourselves is not true.

It is the contention of this article that the make-up and supervision of the PCC ought not to be made subject to legislative control and that the PCC's continued operation as an arm of the judiciary will prove a necessary ingredient in the future well-being of both bench and bar. This does not mean that this opportunity should not be used to modify PCC procedures in a fundamental way. In fact, it is now even more essential to enhance, institutionally, its capacity to ensure speedier resolution of complaints against lawyers by the public. This will mean some sacrifice, but it is important that we do this ourselves as lawyers and not merely suffer it to be done to us by others. Otherwise, the darkness through which our judges have walked will have shadows for us all.

The PCC is not a policy-making board. It does not speak for the Court or Bar nor, it should be made clear, do I speak for the PCC. What follow are the observations of an individual.

PERSONNEL

The Professional Conduct Committee as now constituted is an arm of the New Hampshire Supreme Court charged with enforcement of the Rules of Professional Conduct (the Rules).1  Its 18 members serve without compensation and are chosen by the Court, with at least one from every New Hampshire county. Presently, thirteen are members of the Bar, and there are five lay members. The PCC has a chair and two vice-chairs, and shares two staff attorneys and a small administrative staff with the Committee on Character and Fitness.

Members are appointed by the court to staggered terms of three years and most serve three terms. Each incoming vice president of the New Hampshire Bar Association serves a one-year term as a voting member pro tem, so the Bar leadership is kept well informed of PCC activities and procedures. Historically, there has been substantial representation in the judiciary and in the executive branch by former PCC members. Recent past members include District, Superior and Supreme Court Judges, the New Hampshire Attorney General and a prominent executive department head from state government. The present membership of seven women and eleven men includes a law professor, a member of the clergy, and a former state representative. If diversity of personnel assures catholicity of outlook, then the Committee's membership is well suited to its task.

In 1996 the Court increased the minimum number of lay members from two to four. There may be benefit to further expanding the proportion of lay members, but the present substantial lay presence on the PCC already makes itself felt. The myth of "well connected" lawyers dominating the PCC will not stand scrutiny. Many branches of the Bar are represented. Only three members presently come from offices with more than five attorneys, several are single practitioners, and one is a public defender.

Wholesale replacement membership with a committee made up exclusively of legislators cannot realistically be supposed to assure a more representative or disinterested mix of personnel.

CONFIDENTIALITY

In response to widespread criticism of the handling of some cases in the early 1990s, particularly matters related to the late John Fairbanks, the Supreme Court amended Supreme Court Rule 37(17) on March 9, 1996 to accelerate public revelation of charges and disciplinary dispositions against lawyers. Complaints, which previously became public only when the PCC elected to pursue the imposition of a public censure, suspension, or disbarment were thereafter made public as soon as the PCC issued Notices of Charges. This process was further accelerated for complaints received on or after April 1, 2000 when the Rule was further amended to provide that all docketed complaints ultimately become a matter of public record.2 

The practical effect of these changes has been to permit earlier press scrutiny and inquiry and to throw open Hearing Panel proceedings, where evidence is collected and disputed serious complaints are weighed. Almost no one except the parties actually attends these hearings, but their public nature has proved to be a source of reassurance to many. Internal memoranda and the PCC's deliberative proceedings still remain confidential.3 

New Hampshire's proceedings are already more open and open earlier than in most states. Two neighboring states with comparably sized bars are exemplary of this. In Maine a matter becomes public only upon the issuance of petition for a hearing, after the Grievance Committee review panel refers the case to a disciplinary hearing before a Grievance Committee hearing panel which is open to the public. Matters that are dismissed without a hearing and matters that are not processed are not open to public scrutiny.4 

In Rhode Island, the Disciplinary Board can still issue private discipline on its own, preserving at least that level of confidentiality in their system. More generally, all allegations of misconduct (except those charging actual crimes) are kept confidential until a determination of probable cause has been made.

The need for publicity must continue to be weighed against the impact of the broadcast of irresponsible charges on innocent members of the Bar. Only a handful of states have opened their proceedings wider than New Hampshire, and it is difficult to say that New Hampshire will achieve any particular benefit by opening them further than it already has.

PROCEDURE

The PCC procedural routine, while slowed, has remained largely unchanged for 15 years. Complaints continue to be received in the first instance by the PCC staff, and are then screened and vetted by staff for presentation to the full Committee. Complaints found to have plausible merit by the full Committee are then referred to individual members for investigation. Some are dismissed by the full Committee after the member's investigation and report. The remaining complaints - those believed to raise legitimate factual issues - are referred to panels of between four and six members for public hearing.6  These panels hear evidence in public session and report their recommendations to the full PCC which then discusses and votes on the panel recommendation. One 1996 change in procedure requires the investigating member - who generally serves as chair of the panel - to remove himself or herself from further participation in that case once the Hearing Panel has completed its hearing.7 

SANCTIONS

Any finding of misconduct in violation of the Rules must be based on clear and convincing evidence, and a simple majority vote of the PCC is sufficient for such a finding.8  If misconduct is found, the PCC has four options for sanctions:

  1. Reprimand
  2. Public censure
  3. Suspension
  4. Disbarment

A public reprimand is the only discipline that can be imposed directly by the PCC. For the latter three sanctions, the PCC must petition to the Supreme Court. A fifth option, a "warning," can be voted by the PCC where actual misconduct is not found but where patterns of borderline behavior are evident.

In all cases, respondent attorneys who disagree with a PCC finding of misconduct have the right to a de novo hearing before a judicial master and the right to challenge findings of the master by brief and oral argument to the Supreme Court. In these proceedings the PCC is represented by specially retained outside counsel at the adversary hearing.10 

At present many complaints are presented haphazardly at the Hearing Panel level, particularly those brought by lay complainants, and are often poorly substantiated. The procedural rules soften the impact of this by relaxing the rules of evidence. Panel hearings are often more inquisitorial than adversarial, leaving them wider ranging than most proceedings with which attorneys are familiar. One consequence of this is the recognition even among PCC members of the value of more formal adversarial proceedings at the de novo proceedings before judicial masters.

The biggest effect of Rules changes in the area of sanctions has been to stretch out proceedings and increase requests for de novo hearings. Prior to March of 1996, the lowest level of discipline, a reprimand, was never made a matter of public record unless the attorney requested it. As a result, many attorneys found in violation of the Rules were content to accept such confidential findings rather than persist in their protestations. This option is now unavailable.

While the evidence is only anecdotal, it appears the increasingly public nature of misconduct proceedings has led to more vigorous defense, longer panel hearings and more frequent requests for reconsideration. There is less inclination to concede responsibility for venial violations, and greater resistance to even routine requests for information from PCC investigating members. The removal of investigating members from deliberation and further participation has made the job of transferring cases to outside counsel substantially more burdensome, particularly for the PCC staff. All have contributed to a backlog more than twice as large as a decade ago.

CASE LOAD

In 1999, the last year for which full figures are available, the PCC docketed 139 complaints against 128 lawyers. It made 20 findings of professional misconduct against 16 lawyers. This compares to 138 complaints against 121 lawyers with findings of professional misconduct against 25 lawyers in 1990.

While there has been no dramatic increase in docketed complaints over this period, a disturbing trend in pending cases can be seen from the following table:

January 2001:

Cases pending 1 year or less

118

(62%)

Cases pending 1-2 years

36

(19%)

Cases pending 2-3 years

17

(9%)

Cases pending more than 3 years

18

(10%)

Total Cases Pending:

189

 

January 1996:

Cases pending 1 year or less

103

(72%)

Cases pending 1-2 years

22

(15%)

Cases pending 2-3 years

14

(10%)

Cases pending more than 3 years

3

(2%)

Total Cases Pending:

142

 

 

January 1991:

Cases pending 1 year or less

85

(85%)

Cases pending 1-2 years

11

(11%)

Cases pending 2-3 years

3

(3%)

Cases pending more than 3 years

1

(1%)

Total Cases Pending:

100

 

Most troublesome is the more than 100% increase in the number of cases pending for more than a year. These are, in large part, the difficult cases - cases with considerable smoke, and all too often, fire. A resolution period of two to three years, even for vigorously contested cases, is simply too long. While unique circumstances contributed to the growth of the PCC backlog during 2000, the trend line points to a mounting backlog of indefensible size.

Long-time PCC members have observed that the time devoted to committee work by individual members has lengthened appreciably over the past decade and, with the bulk of investigation and preliminary adjudication being done by volunteers, the work-load of individual members has mounted steadily to the point where the prospect of nine years of PCC service is simply not possible for most lawyers.

FUTURE CHANGES

In 1981 there were 1,741 lawyers in New Hampshire. Now there are 3,951. The informalities once common are no longer possible. The growth of the Bar, the imperatives of earlier and wider disclosure and increased contentiousness have now almost overwhelmed the volunteer-based system. Other states have adopted far more formal structures to better meet their obligations. In California, there is actually a specialized judiciary for attorney misconduct. This is not practicable here, but neighboring states like Maine and Rhode Island with comparably sized bars have substantial full-time professional staffs which do the investigatory work that New Hampshire still tries to do largely through its volunteer members. Volunteers there play a more limited role, sometimes limited to no more than an advisory one.

In Maine, with 4,856 licensed lawyers, the lawyer disciplinary process is carried out by a staff of three attorneys, a contract investigator, one administrative director and three clerical staff members. The three attorneys on staff review complaints as they are received and act as Bar Counsel presenting complaints both to Review Panels and Hearing Panels of the Maine Grievance Commission.

In Rhode Island, with approximately 4,500 lawyers, the staff for the Rhode Island Supreme Court Disciplinary Board consists of four full time attorneys who serve as disciplinary counsel (one Chief Disciplinary Counsel, one Deputy Disciplinary Counsel and two Assistant Disciplinary Counsels), one full-time investigator and a secretarial staff of five. Disciplinary Counsel present matters at informal hearings of a Screening Panel when the board's recommendation is for letters of reprimand and to the board in formal hearings where the board believes that more serious discipline may be warranted.

Our system has, characteristically for New Hampshire, evolved bit by bit over the years. It is now at the point where the inefficiencies of multiple hearings and staffing by volunteers will no longer suffice. At a minimum, the prosecution of all complaints that survive initial screening should be investigated by specialists and prosecuted by Bar counsel, pursuant to a prescribed and predictable calendar, as is now done only after PCC proceedings are completed. Where factual issues are material and disputed there should be a single fact-finding hearing - not two - with right to a single appeal.

Any such change will necessitate retaining a larger staff, a minimum of four attorneys and one accountant backed by greater administrative resources. This will likely double the current budget of $447,174 a year, a cost almost certain to be assessed to members of the Bar.11 

In addition to expense there will be other subtler consequences of an enlarged staff of full-time investigators and attorneys. The process of professionalization will dilute the benefit of regular changes in responsible personnel and some advantages of local knowledge. A more prosecutorial predisposition is another predictable outcome of such a change. These are costs that ought to be borne, however, because change made by us is essential or change made by others will become inevitable.

JUDICIAL v. LEGISLATIVE SUPERVISION

Since the PCC now acts as a Supreme Court committee exercising specifically delegated powers as an arm of the Court, judicial supervision of Bar behavior remains a top-to-bottom affair and, as stated earlier, should remain so.

The issues raised by most conduct complaints are usually bound up in interpretation of customary law or abuse of or violation of technical rules. They require an informed understanding of the practicalities of practice. There are few "simple" cases of merit. Charges, like theft, perjury or sexual misbehavior, while outrageous, lend themselves to prompt dispositions which are not often controversial. It is the subtler transgressions that are more insidious - misrepresentation, discovery abuse, neglect, fiduciary misbehavior, and the like - which, while still rare, consume the most time.

Any effective system of discipline must continue, therefore, to be substantially staffed with lawyers. Lay members make an invaluable contribution to the present procedures. They are vigorous in pointing out our tendency to descend into procedural nuance. However, the wide spectrum of behavior governed by the Rules necessitates the presence of fact-finders with a basic familiarity with legal norms and obligations if anything like justice is to be expected from PCC proceedings.

The suspicion that the PCC, or that lawyers in general, are too gentle with errant members of the Bar persists. That it is unjust is easier stated than proved. But, whatever the shortcomings of lawyers, there is no evidence to suggest that the Judiciary has been too forgiving. The PCC's experience has been that it is at least as common to see sanctions enhanced after appeal to the full Court as to see them reduced. Judges themselves advise the PCC of a substantial percentage of the complaints against attorneys whom they observe serving their clients poorly in the courtroom.12 

There is a seductive symmetry to the creation of an "independent" analogue to what is likely to be a reconstituted Judicial Conduct Committee. However, many of the policy judgments which point to reconstitution of existing mechanisms for judicial discipline are not applicable to Bar discipline. For one thing, lawyers are not public officials, and the level of public accountability is and should be different. Judicial behavior, is by definition, "public" while the vast majority of legal services are rendered outside the public arena. It is also fair to say that the anomalies of judges judging themselves are not present in judicial supervision of Bar discipline.

My view is that the Court should continue to have direct and ultimate authority over the men and women who practice before it. Attorney behavior is an essential element to the administration of the common law. Rules of practice cannot be enforced separately from rules for practitioners. The dilution of judicial supervisory authority through the interposition of a legislatively constituted or "independent" board of discipline can only lead to contradictory results. It will result in less effective supervision of attorney conduct, not more.

CONCLUSIONS

From the 1960s through the early 1990s we lawyers warmed ourselves by the prospect of rising incomes and prestige. In New Hampshire we were content to practice under an unusually stable and revered judiciary and to deal with public institutions remarkably free of corruption. In our complacency we presumed our particular circumstances provided sufficient guaranty that unsuitable persons would neither endure long in the profession nor rise to positions of responsibility. Unhappily, the record of this faith in unexamined premises has not recently been good.

Professions, as the word suggests, declare a shared devotion to the expansion and dissemination of a body of informed knowledge in which its adherents believe. Credentialed and exclusive, they survive only at the sufferance of the laity they serve. Ours is devoted to a system of rules, rights and duties - evolved and given - which are communicable by language and premised on shared assumptions and common understanding. The law is a hard calling which each of us has spent his youth, health, and life to pursue. Amidst the drudgery and tension of typical workdays, we nevertheless experience occasional moments when we expound, interpret, and define some small corner of this common law. In part, at least, the sacrifices made were for the pride those moments bring.

The system we profess is strewn both with doctrines about to be discarded and experiments still in the making. Untidy and inefficient, it is easily ridiculed. But, as common law lawyers, we believe that this is the surest route to individual freedom and security from arbitrary power over our persons and property by others - whether of the state or the lowest miscreant. An independent Bar is an essential part of this system. Unpunished misbehavior erodes the foundation of this system which is based on public consent.

In fact, the worth of our profession is uniquely proportionate to the public's confidence in its reliability. The professional behavior of lawyers and judges, the most persuasive way to manifest our belief in the system we profess, and the submission of one to the authority of the other are all seminal elements to the preservation of this confidence.

Few hold a sentimental view of lawyers. We have never been much loved as a profession. Our hold on public tolerance has never been more than conditional, and seldom more conditional than now. The balance of confidence is fragile, and the events of 2000 show how quickly the dominoes of confidence can fall.

Therefore, it is important, not just that we regulate ourselves within the boundaries of the system we expound, but that we be seen as doing so. The quality of PCC performance is still a cause for pride among its members but, as backlogs lengthen, the wish for paradigmatic performance increasingly will have to stand for the deed. We as a Bar must do more than point out the defects of provisions others would make for us. We must provide a working alternative which demonstrates we are willing to adopt efficient procedures to insure effective enforcement. In this way we can show that, for lawyers, obedience to our own rules, and submission to our own profession is both important and true.

ENDNOTES

  1. The current rules were adopted by the Supreme Court on January 16, 1986; effective February 1, 1986.
  2. Even non-docketed complaints become public after a 30-day response period. Supreme Court Rule 37-A(4)(a)(2)(B).
  3. Supreme Court Rule 37(17)(b),(c),(d)
  4. Maine Bar Rules, Sec. 7.3(k).
  5. Rhode Island Supreme Court Rules Art. III, Rule 21. See also Rules of Procedure of the Disciplinary Board, Supreme Court of Rhode Island.
  6. Supreme Court Rule 37 (3), (c) (3)
  7. Supreme Court Rule 37 A(2)(a)(6)
  8. Supreme Court Rule 37 (3)(c)(4); 37 (3)(b)
  9. Prior to 1996 the PCC could issue a "private reprimand."
  10. Rule 37 (2) (c)
  11. This would translate to approximately $100 per year per member.
  12. These referrals are ordinarily docketed as "Committee Generated Complaints."

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