Potential Crossover of Evidence from Discipline Process to Malpractice Claims

What you say (or don’t) may be used against you.

With increasing frequency, unhappy former clients and adverse parties commence both disciplinary proceedings and separate civil actions against attorneys.  Although the Rules of Professional Conduct “are not designed to be a basis for civil liability,” in certain circumstances courts have ruled the violation of a professional conduct rule can be evidence of an actionable breach of duty. A lawyer facing the disciplinary process must, therefore, consider the broader impact of statements made and conclusions reached on any pending or potential civil litigation. 

I.          PCC Findings May Be Preclusive

Under the doctrines of claim and issue preclusion, a litigant may be barred from contesting in one proceeding a fact established in an unrelated proceeding.  For a finding of an administrative agency’s officer or board to be preclusive, “the officer or board must have been acting in a judicial capacity.”  Cook v. Sullivan, 149 N.H. 774, 777-78 (2003).  An unresolved question in New Hampshire is whether PCC proceedings are sufficiently “judicial” so as to preclude contesting its conclusions in future actions.

The authors of the leading treatise on legal malpractice say no.  “Although it may be tempting to infer civil liability because of discipline for the same wrongful conduct, the problems created by the procedural and substantive differences between the proceedings make collateral estoppel and res judicata inappropriate.” R. Mallen & J. Smith, Legal Malpractice § 33.13 (5th ed. 2000).  Specifically, according to Mallen and Smith: (1) the professional conduct rules were written for a different purpose from that of creating standards for civil liability; (2) the conduct rules differ from the common law rules defining civil liability; and (3) parties are not required to offer expert testimony in attorney disciplinary proceedings.

At least one appellate court has ruled, however, that: “findings of fact [in an attorney disciplinary proceeding] are entitled to collateral estoppel effect no less than the quasi-judicial determination of administrative agencies.” A to Z Associates v. Cooper, 626 N.Y.S. 2d 143, 144 (App. Div. 1995).  While the New Hampshire Supreme Court may be persuaded by the policy concerns cited by Mallen and Smith, it could also conclude that relevant factual findings by the PCC ought to have preclusive effect.  For example:

• The Court has previously determined that if a particular fact was found in a prior proceeding by at least “clear and convincing” evidence (the standard which applies to PCC proceedings), that fact may be conclusively established before the PCC.  Bruzga’s Case, 142 N.H. 743 (1998).  If an attorney is bound by prior findings of fact in a PCC proceeding, therefore, the Court may also conclude an attorney should be bound in later civil actions by factual findings of the PCC.
• The Court has rejected an argument that a finding by the PCC that an attorney had not engaged in frivolous litigation should have precluded the Superior Court from later awarding attorney’s fees to his adversary.  The Court’s holding turned on the difference in the standard of proof between the proceedings.  Daigle v. City of Portsmouth, 137 N.H. 572 (1993). 

Given the uncertainty in this area, an attorney responding to a professional conduct complaint should assume any relevant findings of fact by the PCC may well be deemed to have been conclusively established in any related civil litigation.

II.            Admissibility Statements to the PCC

Statements made in the course of PCC proceedings may also be admissible in a subsequent civil action:

• Statements against interest are admissible as substantive evidence.  See N.H. R. Ev. 804(b)(3). 
• A party’s own prior statement is, by definition, not hearsay. See N.H. R. Ev. 801(d)(2). 
• A statement that is inconsistent with a party’s testimony may be used to impeach that party.  See N.H. R. Ev. 613.

In Farnsworth v. Van Cott, Bagley, Cornwall & McCarthy, 141 F.R.D. 310 (D. Colo. 1992), the court refused to preclude evidence of a grievance filed by the defendant law firm against its former partner from introduction in a legal malpractice case, because the grievance was not privileged under the discipline rules, and it contained statements directly related to the issues in the case. Similarly, in Fuschetti v. Bierman, 319 A.2d 781 (N.J. Super. Ct. Law Div. 1974), the court ruled an attorney’s disbarment was relevant to impeach the attorney’s credibility.

III.            Conclusion:  Consider the Implications When Responding to a PCC Complaint

• Carefully review the precise wording of PCC allegations, and respond specifically to the issues raised.
• Review necessary information to confirm the accuracy of your response (file materials, billing records, etc.). 
• Be mindful of the applicable deadlines and respond in a timely fashion so as not to risk having the allegations deemed to have been admitted.  See Supreme Court Rule 37A(III)(3)(A).
• To the extent a civil action is already pending, consider seeking a stay of the PCC proceeding.  Where a PCC complaint involves “material allegations which are substantially similar to the material allegations of pending criminal or civil litigation,” the PCC has discretion to defer its investigation pending a determination of the litigation.  See Supreme Court Rule 37A(II)(c)(2).

Any professional conduct proceeding should be taken very seriously, no matter how frivolous the grievance may seem.  The ramifications of the proceeding may very well go beyond immediate disciplinary concerns.

William C. Saturley and Richard C. Bell, Jr. are trial lawyers practicing in the commercial litigation and professional malpractice groups at Nelson, Kinder, Mosseau & Saturley, P.C. in Manchester. 

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer