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Bar News - January 23, 2004 Tough, But Fair By: Lisa Segal New disciplinary counsel Landya McCafferty looks forward to making process work for attorneys, public.
James L. DeHart, previously administrator of the Professional Conduct Committee, will oversee the Attorney Discipline Office as general counsel, and will be assisted by Deputy General Counsel Thomas V. Trevethick and Assistant General Counsel Janet F. Devito. The newest key player in this system is a full-time disciplinary counsel who will develop and present the case for discipline before the hearing panels. Newly named to the job is Landya B. McCafferty, a former attorney with New Hampshire Public Defender. McCafferty is responsible for reviewing case files, drafting notices of charges, presenting appropriate cases to hearing committee panels, and representing the Attorney Discipline System before the Supreme Court when necessary. McCafferty, who served on the Professional Conduct Committee for about four years before being appointed disciplinary counsel, is settling into her new role and said she looks forward to being able to serve the Bar and the public in a different kind of way. "I was interested in this job because it offers the opportunity to work with lawyers from all over the state by doing a different kind of work. Being able to specialize in ethics was also appealing to me," she said. Under the new attorney discipline system, McCafferty will receive complaints after they have been investigated by PCC staff attorneys Jim DeHart, Tom Trevethick and Janet Devito and screened by the Complaint Screening Committee. When a complaint comes to McCafferty, she drafts the notice of charges and the Hearings Committee is convened to hear the case. After the hearing, the committee makes a recommendation to the PCC as to appropriate sanctions. If an attorney wishes to appeal the PCC's final ruling to the Supreme Court, McCafferty will represent the PCC before the court. If McCafferty disagrees with the Screening Committee and feels that a case is not worthy of a hearing, she must file a request to dismiss the complaint. McCafferty said that the biggest change attorneys should be aware of with the new discipline system is that it no longer allows for a de novo hearing. "There is only one bite at the apple," she said. Because of this, the system allows for more pre-trial discovery and more traditional litigation - though the rules of evidence still don't apply. "We will still use the same procedural rules during the hearing process - hearings will still be flexible and somewhat informal. The Hearings Committee will still be composed of both attorneys and lay people. But the pre-trial discovery process will be more formalized," McCafferty said. Although there have been significant changes to the process, McCafferty doesn't think they impact the way attorneys should respond to complaints against them. Her best advice to those who find themselves responding to disciplinary complaints: "Be honest from the get-go." "Don't minimize or hide anything," she said. McCafferty said there are many challenges to her new job - among them addressing the backlog of 35 PCC cases that she inherited. She is in the process of reviewing those cases to determine if they are worthy of hearing or should be recommended for dismissal. Something that may help her address the backlog is McCafferty's ability to negotiate cases - an option that didn't exist under the old system. Although it is not clear at what stage such discussions would take place, McCafferty believes it can be a useful tool for resolving some cases. "I can work with attorneys to develop a stipulation that we'd then present to the Hearing Committee for approval. I welcome calls from attorneys to try to negotiate," she said. Diversion is another option that may help address the backlog and keep less serious complaints from going to the hearings stage. "All kinds of creative things can be done to try to resolve these complaints," McCafferty said. Another challenge of her job is making a completely new system work. "Perhaps the biggest challenge will be mastering the process and making it work for everybody involved," she said. McCafferty said that although she is described as the Attorney Discipline System prosecutor, she doesn't want to be seen as the "enemy." She hopes to work with attorneys in a just way that will serve both lawyers and the public. "I want to work with members of the Bar to make them understand that I'm fair, open and easy to talk to," she said. "I want them to say the system was fairer because I was involved." McCafferty spent the last nine years as an attorney for NH Public Defender, including the last year and a half at Appellate Defender. She said she loved working for Public Defender and found it difficult to leave, but looks forward to the less stressful job of representing a system rather than battling for clients in the courtroom every day. "My role is no longer to constantly object, to fight at every turn. Now I represent a process. This is a whole different form of litigation," she said. Prior to joining Public Defender, McCafferty graduated from Harvard, taught at St. Paul's School for four years and graduated from Northeastern Law. During law school, she interned with Judge Shane Devine in federal court. She also clerked for Judge Norman Stahl in federal court after law school and worked for the McLane law firm in Manchester. McCafferty said that as disciplinary counsel, her goals for the new Attorney Discipline System include striving for uniformity and quality. "I hope that I will be able to provide stability and consistency at this critical stage," she said. "I hope to provide high-quality representation before the PCC and the Supreme Court. And I hope to be creative enough in the process to make the new process what it was meant to be - a better process," she added. "I want this process to be something that the Bar and state can be proud of." Attorney Discipline Topic of MYM CLE DISCIPLINARY COUNSEL Landya McCafferty will be among the faculty members discussing the state's new Attorney Discipline System at an NHBA Midyear Meeting CLE on Friday, Feb. 13, 2004, from 8:45-10 a.m. The program will provide an overview of the discipline system and insight on how attorneys can navigate the new attorney discipline process. See Meetings & Events for more details on the program and/or a registration form.
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