I. INTRODUCTION

The year 2002 was a busy year for the Professional Conduct Committee and its staff. During 2002, the Committee and staff completed the process, begun in 2001, of considering what structural changes to the disciplinary system would make it more efficient and responsive to the needs of the public and the Bar. In October, the proposed new structure, as set forth in proposed Supreme Court Rules 37 and 37A, was submitted to the Supreme Court for its review, and in December, it appeared on the Court's Web site for public review and comment.

Meanwhile, to allow for the senior staff time needed to work on the new structure, and to enhance staff's ability to address the growing backlog of open cases, a third staff attorney position was filled on April 1, 2002. The administrative staff now consists of three attorneys, a certified public accountant and two secretaries.

II. COMMITTEE MEMBERSHIP

Two new members were named to the Committee during 2002, namely James R. Martin, an attorney admitted in California but not New Hampshire, and Thomas P. Connair of Claremont. Patrick F. Harrigan of Portsmouth, who had served a one-year Committee term by virtue of his position on the Board of Governors of the New Hampshire Bar Association, accepted an appointment for a three-year term. James D. Gleason of Henniker was appointed in his capacity as New Hampshire Bar Association vice president for a one-year term. Ten-year member and long time Committee Chair Robert C. Varney of Wolfeboro completed his service to the Committee, with Margaret H. Nelson of Concord succeeding him as chair. Benette Pizzimenti of Laconia became the attorney vice chair, and Toni M. Gray of Hopkinton became the lay person vice chair.

III. OVERVIEW

During 2002, a total of 196 letters that were intended to be complaints were received by the Committee. The Committee staff determined that 131 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 67 percent of the letters received, an increase from the 48 percent docketed in 2002.

The total number of complaints docketed was a slight increase from the 126 matters docketed in 2001. There was a continuing 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 to 196 in 2002. This represents a 25 percent decrease from the total volume of letters received in 2001. However, the subject matter of the letters has become more complex, often including multiple attorneys, with some grievances filling more than one large manila envelope when they are submitted for review.

As in prior years, the Committee's staff spent hundreds of hours discussing potential complaints with grievants, fielding telephone calls concerning Committee procedure and sometimes meeting with grievants in person to discuss their individual complaints. In addition, the staff spoke with New Hampshire attorneys regarding procedures or general Rules questions; people from other states with inquiries about our process and our attorneys; and many members of the public who call to learn about disciplinary records of attorneys they are thinking of hiring. The administrator has spoken to Bar committees and the Legislature about the Committee's work. Staff attorneys were speakers at CLEs. The staff accountant was in the field on a regular basis conducting compliance reviews at individual attorneys' offices and, in some cases, full audits. He also answered many questions about Trust Account procedures when attorneys or their staff called the office.

During 2002, the staff attorneys handled 850 telephone calls relating to potential complaints, and 801 calls regarding ongoing docketed matters. They also participated in 382 telephone calls with Committee members. Staff attorneys attended 93 in-person meetings with members of the public, more than twice the number of the previous year. The calls, 2033 in all, represent an 18 percent increase over 2002, several times the increase from previous years.

The 131 complaints that were docketed in 2002 were docketed against 132 different attorneys. Eight of the 131 complaints named two different attorneys as respondents. Two matters were docketed against three different attorneys, and one named four separate attorneys.

Of the 132 attorneys having complaints docketed against them in 2002, nine received two complaints and two received three docketed complaints. Four of the attorneys are not admitted in New Hampshire but conducted business in New Hampshire that led to complaints being filed.

Clients were responsible for filing 64 of the 132 complaints in 2002. This is consistent with prior years and continues to represent the largest single source of docketed matters. Opposing parties were the source of 29 complaints. Ten were filed by other attorneys and 10 were referred to the Committee by court clerks, judges or hearings officers. The remaining complaints 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, beneficiaries in probate estates, co-respondents in marital matters, and family members or friends of litigants. Eleven persons filed complaints against two attorneys, and two people filed complaints against three attorneys.

IV. CASELOAD

Shown in Figure A is a breakdown of the underlying legal matters giving rise to the professional conduct complaints docketed by the Committee for the years 2000, 2001 and 2002. Historically, criminal and family law cases have been the top two categories. While criminal matters first generated the largest number of complaints in 2001, divorce and family law issues regained the top spot in 2002 in a tie with criminal case complaints. Probate and estate planning matters leaped into third place in 2002 for the first time. It is probably no coincidence that these three areas of law involve the most intense and personal human interactions, a perspective that lawyers would be prudent to keep in mind.

Figures B, C and D set forth the distribution of complaints docketed in 2002 by year of admission.

V. MEETINGS AND HEARINGS

The Committee held hearings on the merits of complaints at 10 of its 12 regularly scheduled meetings in 2002. These hearings on the merits addressed 31 different matters. The Committee held a hearing on the merits of one matter on one regular and one special hearing day. One other hearing was suspended after two hearing days, to be resumed in 2003.

VI. FINDINGS OF PROFESSIONAL MISCONDUCT

The Committee made findings of professional misconduct on the merits of 15 different matters in 2002. One attorney had findings of misconduct entered against him in three different complaints. In addition to the findings of professional misconduct on the merits of those complaints, the Committee made a finding of professional misconduct against the same attorney for his failure to respond to yet a different complaint. As a result of these findings, the Committee filed a petition to suspend the lawyer for two years. The Committee made findings of misconduct against another lawyer in two different matters. One led to the issuance of a reprimand and the other to a petition to suspend for six months. There were findings in nine other cases against nine separate attorneys.

The 15 findings of professional misconduct resulted in one petition for disbarment, one petition for public censure, one petition for a six-month suspension (in addition to those noted above), and five reprimands. In one matter, although the Committee made a finding of professional misconduct, it did not issue or recommend a sanction.

Shown in Figures E and F is the distribution of misconduct findings by years of practice for the past three years.

VII. 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 matter in which the Committee found misconduct on the basis of the 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 G and H contain a listing of the individual Rule violations and a graph showing the distribution of findings by major Rule category.

FIGURE G
2002 Misconduct Findings by Rules Violated

VIII. CASES DISMISSED

A grand total of 151 matters were concluded during 2002, which includes the 15 matters on which the Committee found misconduct on the merits of the complaints and 131 matters that were dismissed with findings of no professional misconduct on the part of the responding attorneys. Of the 131 matters that were dismissed, 25 were dismissed with warnings indicating that the Committee found conduct on the part of the subject attorney that required attention, but that did not constitute professional misconduct. In addition, three matters were dismissed when two attorneys were disbarred on separate matters, and two were dismissed due to the death of the attorney involved.

Five of the concluded matters resulted in petitions being filed with the New Hampshire Supreme Court, including one petition for disbarment, one petition for public censure, one petition for a two-year suspension of one lawyer in three matters, and two petitions for six-months suspensions for two different attorneys.

Of the 151 matters concluded in 2002, three had initially been docketed in 1996, two had been docketed in 1997, three in 1998 and 14 in 1999. A total of 33 matters had been first docketed in 2000, 50 had been initiated in 2001, and 46 had been filed in 2002.

Complaints can be dismissed at a number of points in the disciplinary process. After a complaint is docketed, the attorney has 30 days to respond. The complainant can then comment on the response, the attorney can respond further, and so forth until they are both finished providing input. Once the Committee receives the last of the answers and comments, 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 131 matters that were dismissed with findings of no professional misconduct in 2002, 71 were dismissed at this stage (including nine 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 reasonable likelihood 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 131 matters dismissed in 2002, 44 were dismissed at this stage, 12 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 recom mending that the matter be placed on the list of matters waiting for a hearing. Sixteen of the matters dismissed by the Committee in 2002 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 amounted to 47 percent of all matters concluded in 2002, which is consistent with a rate of 46 percent in 2001 and 47 percent in 2000. A total of 115 of the 151 concluded matters in 2002, or 76 percent, were concluded without the need for hearings. Of the 31 matters that were concluded following hearings, 15, or 48 percent, resulted in findings of professional misconduct.

Many of the matters concluded in 2002 were matters that were originally docketed in previous years (otherwise known as "holdover complaints"). Figure I shows a breakdown in the number of complaints that were concluded, by categories of new and holdover complaints, for the years 2000 through 2002. Figure J demonstrates the manner of disposition of all categories of complaints for that same period of time.

IX. DISPOSAL OF MATTERS BY THE SUPREME COURT

During 2002, the New Hampshire Supreme Court issued 10 final orders of discipline in 12 different matters. These orders included one public censure, four disbarments and four suspensions, as well as affirming an appeal of a reprimand. One of the disbarments was the result of three separate petitions filed by the Committee. One of the suspensions that were ordered by the Court was for a duration of six months and two were for a period of one year. The fourth was an indefinite suspension for failure to cooperate with the Committee.

X. CONCLUSION

During 2002, the Committee saw some things change and many stay the same. A new staff attorney was added and a new system was proposed. The complaints filed became ever more complex, the public demanded more of the staff's time, and the Committee continued to devote hundreds of hours to its work investigating, hearing matters, and considering what the outcomes should be. The issues that were the subjects of the complaints were in large part familiar from past years: telephone calls not returned or case updates not provided; representations to courts; discovery abuses; and bills that were more expensive than expected.

The Committee strove to address its backlog in 2002. The Supreme Court granted a request to appoint former Committee members to assist with processing older matters. In January 2002, the meeting agenda indicated 94 matters had been assigned to Committee members, which included several from 1996. There were 67 matters on the administrative list, which were not yet ready for the Committee to consider. In June, there were 105 assignments pending and 80 on the administrative list. By December, the 1996 and 1997 matters had been cleared up, the matters assigned list had dropped to 89 pending cases, and the administrative list was down to 55 pending matters. Although this is still too many, from the perspective of both attorneys and complainants, it is the aim of the proposed new structure to make the process more efficient.

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