Introduction

The year 2001 was the first full year that the Committee operated under the major changes that took place in the New Hampshire lawyer disciplinary process beginning on April 1, 2000 for grievances received by the Committee on or after that date. The Committee was, and still is, gaining valuable experience in processing complaints under the new rules, and remained extremely busy in completing the processing of complaints pending from prior years. At the same time, the Committee did experience a decrease during 2001 in the number of grievances received and docketed, as well as a decrease in the number of matters in which it found professional misconduct.

Also during 2001, the Committee and its staff began an introspective process to determine what structural changes are needed to the disciplinary system to make it more efficient and responsive to the needs of the public and the bar. At year's end, the Committee had arrived at a basic model for the structural format that it believes would best suit the needs of New Hampshire. It is currently in the process of preparing proposed rule changes for presentation to the Supreme Court Rules Advisory Committee to implement such a system.

Committee Membership

Several new members were named to the Committee during 2001, including three lay members - Marthe F. Dyner, Stephen B. Stepanek and John E. Cooperider. In addition, Patrick F. Harrigan of Portsmouth was appointed for a one-year Committee term by virtue of his position on the Board of Governors of the New Hampshire Bar Association.

Overview

During 2001, a total of 261 letters that were intended to be complaints were received by the Committee. The Committee staff determined that 126 of these met the requirements for docketing as they alleged conduct that violated the Rules of Professional Conduct and appeared to otherwise satisfy the criteria for docketing as set forth in the Supreme Court Rules. Therefore, the percentage docketed as complaints was 48 percent of the letters received, which is a decrease from the 56 percent docketed in 2000, but still higher than the 38 percent docketed in 1999 and the 40 percent docketed in 1998.

The total number of complaints docketed was a decrease from the 170 matters docketed in 2000. One explanation for this significant decrease could be the new rules, effective for complaints received on or after April 1, 2000 which require complaints to be signed under oath and which require grievants to have standing. However, it is still too early to tell if this represents a long-term trend and, if so, what the reason is for the decrease. Worth noting, however, is that there was a significant decrease in the number of letters received as grievances by the Committee (both docketed and non-docketed) from 302 in 2000 to 261 in 2001. This represents a 13 percent decrease from the total volume of letters received in 2000, which continues a trend that began in 1999, when 366 letters were received.

As in prior years, the Committee's staff spent many hours discussing potential complaints with grievants, fielding telephone calls concerning Committee procedure, and occasionally meeting with grievants in person to discuss their individual complaints. During 2001, the staff received 1,714 telephone calls relating to potential or ongoing complaints and also attended 38 in-person meetings with potential grievants. While the number of telephone calls was in line with previous years (up from 1,681 received in 2000), the number of in-person meetings was down from 56 in 1999 and 70 in 1998.

The 126 complaints that were docketed in 2001 were docketed against 120 different attorneys. Thirteen of the 126 complaints each named two different attorneys as respondents. One matter was docketed against three different attorneys.

Of the 120 attorneys having complaints docketed against them in 2001, 15 received two complaints, one received three complaints and one attorney was the subject of four docketed complaints.

Figure A is a graph displaying the correlation between the number of complaints docketed and the number of attorneys receiving complaints for the years 1997 through 2001.

Clients were responsible for filing 64 of the 126 complaints in 2001. This is consistent with prior years and represents the largest single source of docketed matters. Opposing parties were the source of 33 complaints. Ten were filed by opposing counsel and 10 were referred to the Committee by court clerks, judges or hearings officers. The remaining nine were submitted to the Committee by a number of sources, including parties to matters in which the subject attorneys were acting as guardians ad Litem, successor counsel, co-workers and witnesses. In two other matters, the complaints were filed containing allegations against both the grievant's own attorneys and opposing counsel.

Caseload

Shown in Figure B is a breakdown of the underlying legal matters giving rise to the professional conduct complaints docketed by the Committee for the years 1999, 2000 and 2001. In all three years for which these statistics have been developed, criminal and divorce/family law/adoption have been the top two categories. While criminal matters were the genesis of the largest number of complaints in 2001 for the first time, that category edged out divorce and family law matters only by a slight margin.

While individual categories may vary slightly from year to year, it is clear from a review of these statistics which particular types of practice give rise to the most complaints. Whether these statistics indicate only that there are so many more divorce and criminal matters in the court system, or represent an increased likelihood that complaints will result from providing legal representation in those particular areas of the law, can only be surmised.

Figure C sets forth the distribution of complaints docketed in 2001 by year of admission.

Meetings And Hearings

The Committee held hearings on the merits of complaints at 11 of its 12 regularly scheduled meetings in 2001. These included hearings on the merits of 31 different matters. In addition, the Committee held a hearing on the merits of one other matter on four special hearing days. One additional special hearing day was devoted to two hearings on two petitions for reinstatement filed by attorneys who had been suspended from the practice of law in prior years.

Findings Of Professional Misconduct

The Committee made findings of professional misconduct on the merits of 12 different matters in 2001. One attorney had findings of misconduct entered against him in three different complaints. A second attorney had findings of professional misconduct made against her in two different matters. The 12 findings of professional misconduct resulted in one petition for disbarment (filed with regard to findings of professional misconduct in three different matters), two petitions for public censure and six reprimands. In addition to the findings of professional misconduct on the merits of complaints, the Committee made two findings of professional misconduct against an attorney for his failure to respond to two different complaints and issued two reprimands to that lawyer. It also made a single finding of professional misconduct against a second lawyer for his failure to respond to the Committee in another matter, which also resulted in the issuance of a public reprimand.

Shown in Figure F is the distribution of misconduct findings by years of admission.

Rules Found To Have Been Violated

A total of 56 rule violations were found in the 15 matters in which the Committee found misconduct, including the three matters in which the Committee found misconduct on the basis of attorney's failure to respond to the Committee concerning complaints that had been docketed. As has historically been the case, the vast majority of the rule violations involved rules relating to a lawyer's duties to the client. Figures H and I contain a listing of the individual rule violations and a graph showing the distribution of findings by major rule category.

Cases Dismissed

A grand total of 116 matters were concluded during 2001, which includes the 12 matters on which the Committee found misconduct on the merits of the complaints and 104 matters that were dismissed with findings of no professional misconduct on the part of the responding attorneys. Of the 104 matters that were dismissed, 15 were dismissed with warnings indicating that the Committee found conduct on the part of the subject attorney that required attention, but that it did not constitute professional misconduct.

Six of the concluded matters resulted in petitions being filed with the New Hampshire Supreme Court, including one petition for disbarment, two petitions for public censure and one petition for a one-year suspension.

Of the 116 matters concluded in 2001, three had initially been docketed in 1996, four had been docketed in 1997, three in 1998 and 13 in 1999. A total of 60 matters had been first docketed in 2000 and 33 had been initiated in 2001.

Complaints can be dismissed at a number of points in the disciplinary process. Once the Committee receives answers and responses back and forth, an analysis is made of the complaint to determine if there is still a potential for a finding of professional misconduct to be made by clear and convincing evidence. If there is, the matter is assigned to a Committee member for further review and evaluation. If not, the matter is dismissed with a finding of no professional misconduct. Of the 104 matters that were dismissed with findings of no professional misconduct in 2001, 54 were dismissed at this stage (including one with a warning).

The remaining docketed complaints are assigned to Committee members who complete their further review and evaluation (including whatever investigation is deemed to be appropriate by the assigned member). Should the assigned member determine that there is no possibility that a hearing would result in a finding of professional misconduct by clear and convincing evidence, the assigned Committee member prepares a report for distribution to the full Committee, which provides details concerning the evaluation. If the Committee agrees, the matter is dismissed with a finding of no professional misconduct, which often includes a warning. Of the 104 matters dismissed in 2001, 39 were dismissed at this stage, 10 of which included warnings.

If the assigned Committee member believes that there is a potential for a finding of professional misconduct, the Committee member will present an oral report to the Committee recommending that the matter be placed on the list of matters waiting for a hearing. Eleven of the matters dismissed by the Committee in 2001 with findings of no professional misconduct were dismissed based upon the recommendations of hearing panels, after hearings were held. Four of these dismissed matters included warnings.

Matters concluded at the end of the administrative process accounted for 46 percent of all matters concluded in 2001, as compared to 47 percent in 2000 and 43 percent in 1999. A total of 93 of the 116 concluded matters in 2001, or 80 percent, were concluded without the need for hearings. Of the 23 matters that were concluded following hearings, 52 percent resulted in findings of professional misconduct.

Many of the matters concluded in 2001 were matters that were originally docketed in previous years (otherwise known as holdover complaints ). Figure J shows a breakdown in the number of complaints that were concluded, by categories of new and holdover complaints, for the years 1997 through 2001. Figure K demonstrates the manner of disposition of all categories of complaints for that same period of time.

Disposal Of Matters By The Supreme Court

During 2001, the New Hampshire Supreme Court issued 14 final orders of discipline in 15 different matters. These orders included eight public censures, two disbarments and three suspensions. One of the disbarments was the result of two separate petitions filed by the Committee. Two of the suspensions that were ordered by the Court were for a duration of three months each and one was for a period of one year.

Conclusion

During 2001, the Committee continued to gain experience processing complaints under the changes to the Supreme Court Rules, which became effective for complaints received on or after April 1, 2000. While the number of matters received and docketed as complaints was lower in 2001 than in the previous year, the Committee remained very busy processing complaints in a much more open environment. In addition, complaints received in recent years have become increasingly complex and voluminous. Whether the decrease in the number of complaints received and docketed is a result of the new requirement for complaints to be submitted under oath, the requirement that complainants have standing to file complaints, or some other factor is a matter of speculation.

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