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Bar News - September 23, 2005 NH Supreme Court At-a-Glance - August 2005 By: Holly Haines
Coffey’s Case, No. LD-2003-011 August 12, 2005: Referee’s Findings Adopted; Attorney Disbarred. Whether the judicial referee’s findings that the attorney violated rules of professional conduct 1.4(b), 1.5(a), 1.7(b), 1.8(a)(1), 1.8(b), 1.8(j), 2.1, and 8.4(a) were supported by the evidence and warranted a two-year suspension of the attorney’s license to practice law when the findings were that the attorney accepted conveyance of a client’s property, which had been the subject of the attorney’s past legal services, as payment for past and future legal services, while the client was 81 years old and suffering from the early stages of dementia. The judicial referee’s findings are supported by the record, but they warrant disbarment rather than a two year suspension from the practice of law in order to protect the public and preserve the integrity of the legal profession. The record shows that the client did not have the mental capacity to convey her home to the attorney, that the attorney should have know of the client’s diminished mental capacity, that the property conveyed was the subject matter of the litigation under the attorney’s prior representation and that the attorney charged an excessive fee for his appellate legal services. A lawyer who takes advantage of a vulnerable client by advancing his or her own self-interest and then charges an exorbitant fee and defends that conduct through less than forthright testimony must be disbarred. In the Matter of Bar Applicant ADM-2004-176 (Standing Committee on Character and Fitness), No. ADM-2004-176 August 18, 2005: Application for Admission Denied. Whether applicant for admission to the New Hampshire Bar has shown cause for why he should not be denied admission to the bar for lacking the character and fitness to practice law, by rebutting the findings of the Standing Committee on Character and Fitness that the applicant: (1) engaged in improper and contemptuous conduct in his personal legal matters before the Windham Vermont Family Court; (2) had a propensity to abuse the judicial process; and (3) lacked sufficient positive characteristics of the character and fitness to practice law. The applicant’s bar admission application must be denied because the findings reported by the Standing Committee on Character and Fitness are supported by substantial evidence that the applicant violated a family court order in contempt of that court, abused the judicial process through frivolous filings based on his own misperception of misconduct, and failed to demonstrate sufficient positive characteristics of the fitness to practice law. Abuse of the legal process and violation of court orders are two relevant factors for denying admission under the ABA Recommended Standards for Bar Examiners and NH Courts may properly look to ABA standards for guidance when reviewing applications for bar admission. The applicant presented evidence, was granted a hearing and opportunity to be heard, and was not otherwise deprived of procedural due process, yet he failed to show cause for his character and fitness to practice law in New Hampshire. Civil Actions Broughton v. Proulx, No. 2004-449 August 18, 2005: Affirmed. Whether the trial court erred by: (1) failing to strike or ask the jury to disregard a prejudicial financial comment in the plaintiff’s opening statement in a slip and fall case against the plaintiff’s landlord; (2) taking judicial notice of and instructing the jury on a municipal ordinance governing a landlord’s duty to maintain sidewalks when the defendant had no notice that the ordinance would be relied upon; and (3) instructing the jury on an misleading description of the law of comparative fault. Because the defendant failed to request that the trial court strike prejudicial comment in the plaintiff’s opening statement at trial after making his objection to it, the defendant has not preserved the first issue for appeal. The trial court properly took judicial notice of a municipal ordinance under N.H.R.Ev. 201 and the defendant never objected to the court’s jury instruction on the ordinance. Therefore the defendant did not preserve his challenge to the jury instruction on appeal. Furthermore, the defendant presented defenses to the municipal ordinance at trial and, therefore, was not prejudiced by any lack of notice that the plaintiff would rely on that ordinance at trial. Finally, the trail court gave detailed instructions on the law of comparative fault and the instruction in its entirety adequately explains the law of comparative fault. The defendant challenged only one sentence of the jury instruction, which does not change the effect of the jury charge in its entirety that is unchallenged and provides a detailed explanation of the law of comparative fault. Constitutional Law Winnisquam Regional School District v. Levine, et. al., No. 2004-079 August 18, 2005: Reversed. Whether the Superior Court erred by ruling that the statute of repose found in RSA 508:4-b (1997) was an unconstitutional violation of the equal protection provisions of Part I, Articles 1 and 14 of the New Hampshire Constitution. RSA 508:4-b does not violate the equal protection provisions of the New Hampshire Constitution. The statute creates a classification for the building construction industry that is reasonable and that bears a fair and substantial relationship to the legislative purpose of protecting people engaged in the building construction trade from being subjected to an almost infinite period of liability for their work. The statute reasonably allows differing treatment for builders from owners or occupiers of land, because builders lack the ability to control, protect and restrict the property on which they work, unlike owners or occupiers who build or construct on their own property. Thus, owners and occupiers are not similarly situated with builders and it is constitutionally permissible not to afford them the same statutory protection. Criminal Law Petition of the State of New Hampshire (State v. Campbell), No. 2004-898 August 12, 2005: Petition Granted; Sentence Vacated; Remanded. Whether the Superior Court erred by sentencing a convicted habitual offender to a period of home confinement pursuant to RSA 651:2, when the Cheshire County Correctional Facility to which the defendant was sentenced did not have a home confinement program as required by RSA 651:19. The Superior Court erred by sentencing the defendant to a period of home confinement. When the correctional facility to which a defendant is sentenced does not have a home confinement program, the trial court lacks the authority to order home confinement as part of the defendant’s sentence and must sentence the defendant to the minimum mandatory sentence for habitual offenders, which is one year in a county correctional facility. State v. Lavoie, No. 2004-095 August 18, 2005: Affirmed. Whether the Superior Court erred by: (1) allowing the State Toxicologist to testify about the defendants BAC at the time the defendant drove her van into her companion when the subject matter of the testimony was unreliable and never disclosed to the defendant; (2) striking the defendant’s notice of affirmative defenses when she did not file the notice within the thirty days required by statute; (3) failing to instruct the jury on the defendant’s competing harms defense to negligent homicide; and (4) failing to set aside the verdicts or suppress all blood test results when the State negligently failed to preserve the blood samples. The State Toxicologist testimony was properly disclosed under former Superior Court Rule 98(A) because the defendant had notice that the toxicologist would be called to testify at trial and the defendant received copies of all blood test results reported by the toxicologist. The testimony of the State Toxicologist was reliable because it estimated the defendant’s BAC at the time the crime was committed by mathematically extrapolating backwards from the time that the later blood tests were taken, which is a generally accepted formula under New Hampshire law. The trial court properly struck the defendant’s notice of affirmative defenses as being untimely because it was filed after the thirty day period granted by court rules and the defendant failed to show good cause for the untimely disclosure of her affirmative defenses where they were based upon a factual basis already known and available to the defendant. The competing harms defense is not available as a matter of law when the alleged competing harms of unwanted sexual advances and manslaughter bear no temporal relationship to one another. The blood test results were properly admitted because the State acted in good faith and without culpable negligence in complying with statutory notice, preservation, and destruction of sample requirements by sending four attempted notices to the defendant as to the sample destruction date. |
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