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Bar News - March 19, 2004 Attorney Contacts Restricted For Litigants With Protective Orders By: Deborah A. Fauver WHEN YOU REPRESENT a person subject to a 173-B protective order, can you make any contact with the pro se person protected by that order? Probably not, without explicit court approval, the Supreme Court ruled late last month in State v. Kidder. The court said that a person subject to a protective order may violate that order if his lawyer contacts a pro se protected person on his behalf. At oral argument, it was conceded that such liability for the client could also leave the attorney open to accomplice liability, though the court's written opinion makes no reference to attorney liability. The domestic violence community lauds the decision as one that strengthens the safety net around victims of abuse; but lawyers are left wondering how to move cases forward if they are not allowed to contact pro se litigants. The conservative approach would be to obtain court approval before calling, before mailing or serving pleadings, and even before approaching the protected person in the courthouse to hand over a financial affidavit, according to chief appellate defendant Christopher M. Johnson, who argued on Steven Kidder's behalf before the Supreme Court. Senior Assistant Attorney General Stephen D. Fuller, who argued the case for the state, adds that it really doesn't matter what the communication is about. Fuller points to language in the Kidder opinion stating that "any contact with a victim of domestic violence, whether legitimate or not, may be perceived by the victim as harassment, intimidation or abuse." "There may be some cases where as a matter of fairness and due process the defendant has to contract the victim before trial, and in those instances, the attorney can seek court approval," Fuller said. In cases involving domestic violence allegations and pro se litigants, minimizing phone contact and putting all communication in writing is in everyone's best interest, according to Bedford family law practitioner Sharon L. Demmerle. "Before continuing with any pleadings I ask the court to modify the order to allow me to send things by mail to the alleged victim, and I specifically do not ask for telephone contact." "We really don't think this will add increased difficulty, and it will protect people," said Linda Griebsch, a policy advocate for the NH Coalition Against Domestic and Sexual Violence. "We had a case where the defense attorney went to see a victim in the hospital and convinced her to drop her order - this decision protects against that kind of contact." "If a defense attorney really needs to make contact, this decision says that the attorney can go to court and get an exception or modification of the order," Griebsch said, adding that the legislature has repeatedly refused to create a blanket exception for attorney contact in domestic violence cases. Rep. David Bickford sponsored the last such bill in the legislature, and has been asked to consider resubmitting the bill, according to attorney John D. Cameron of Laconia, who also expects the issue to come up before a Family Law Task Force created by the legislature last year. "I don't believe that we have a problem in New Hampshire with attorneys trying to force women to drop cases," said Cameron, who has many clients who are victims of domestic violence; he says most of them are women. "If attorneys are using unfair or bullying tactics, that's an issue that ought to be dealt with in the ethical code," continued Cameron. Meanwhile, the Kidder decision means more expense for clients, he said, in that it requires more motions per case. Case Background Kidder was charged in district court with violating a 173-B protective order obtained by Dawn Cassidy; the order prohibited contact either in person or through a third party. Kidder hired Concord attorney Gregory Swope and asked him to contact Cassidy to set up a meeting with Kidder, Swope, and Cassidy. Swope made the contact, and Cassidy, who was unrepresented and feared pressure to drop her domestic violence action, called the police. The state filed a Class A misdemeanor complaint against Kidder, and, prior to trial, the district court certified the following question: "Does the defendant in this case, who is subject to a protective order issued by the District Court which prohibits third party contact with the victim by telephone, violate the order when the defendant's attorney, a member of the New Hampshire Bar in good standing, contacts the unrepresented protected person on behalf of the defendant?" A three-judge panel of the Supreme Court answered the question in the affirmative and remanded the case without specific directions, and without finding that Kidder had in fact violated the protective order. The parties agree that the facts relied on by the Supreme Court were simply drawn from the complaint, and have not been resolved by the district court. The panel opinion, authored by Associate Justice Joseph P. Nadeau, joined by Associate Justices Linda S. Dalianis and James E. Duggan, begins by noting the clear legislative intent in RSA 173-B to protect victims of domestic violence. "We find that holding the defendant criminally responsible for knowingly contacting the holder of a protective order through his attorney effectuates this intent," Nadeau wrote. "Nothing in the plain language of the statute or the legislative history indicates a legislative intent to except 'legitimate contact' by certain third parties." More specifically, the court concluded: "a trier of fact can find that the defendant violated the protective order if the trier of fact finds that the defendant knowingly contacted the unrepresented protected person through his attorney." The court did suggest an exception for "innocent contact" - leaving definition of that phrase to prosecutors: "We caution ... that while the defendant may properly be found guilty of violating a protective order when he knowingly contacts the victim through an attorney, teacher, doctor or other party, prosecutorial discretion should be exercised to distinguish between cases when a third party makes innocent contact with the protected party and those where the defendant use a third party as a conduit," Nadeau wrote. Further, with two sentences, Nadeau outlined the defendant's remedy in the face of the contact ban: "If the defendant has a legitimate reason to contact the victim, he is not without remedy. He can petition the court for an exception to or modification of the restraining order." The opinion, dated Feb. 27, 2004, can be found at the court's web site at http://www.courts.state.nh.us/supreme/opinions/2004/index.htm Deborah A. Fauver, an active member of the Bar in Freedom, NH, and a writer for several legal publications, is a contributing editor for Bar News.
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