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Bar News - May 19, 2006


New Hampshire Supreme Court Attorney Discipline System: 2005 Annual Report

I.          Introduction

           

On January 1, 2005, the caseload for the Attorney Discipline Office (ADO) included 52 matters determined to warrant a hearing and 199 docketed matters pending investigation, for a total of 251 matters. Almost half of the cases pending investigation had been docketed prior to January 1, 2004. During the year, ADO staff attorneys evaluated 235 grievances, and determined that 124 of them did not meet the criteria for docketing. As of December 31, 2005, there were then 173 matters pending in the investigative stage, only one of which was docketed before January 1, 2004, and 40 awaiting prosecution, for a total of 213 matters.

 

II.         Office Operations

           

During 2005, the ADO staff continued to field hundreds of hours of telephone calls from members of the public. A total of 1,995 calls were taken by General Counsel James L. DeHart, Deputy General Counsel Thomas V. Trevethick and Assistant General Counsel Janet F. DeVito. There were 217 meetings with the public. More than 690 packets of information were mailed to the public about how to file a complaint.

           

The ADO received 235 grievance letters in 2005. The staff determined that 111 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. The percentage of matters docketed in 2005 as complaints was 47%, a decrease from 74% in 2004. The marked decrease in docketed complaints was due in large part to the staff requesting more information from grievants and voluntary responses from attorneys prior to determining whether to docket each matter.

           

On August 1, 2005, James L. Kruse was hired as Assistant Disciplinary Counsel, on a part time basis, to assist Disciplinary Counsel Landya B. McCafferty in the prosecution of matters referred for a hearing. The office now consists of a total of five attorneys, four secretaries, one administrative coordinator and one certified public accountant. The office also utilized two interns from Franklin Pierce Law Center, who assisted in research, writing, trial preparation and examination of witnesses at hearings.

           

Craig A. Calaman, CPA, completed three audits during 2005 pursuant to orders of the Supreme Court and worked on several others. He also conducted six client trust account compliance reviews. In addition, he responded to numerous requests for information about completing trust account compliance certificates.

           

The ADO attorneys served on various New Hampshire Bar Association committees, including the Ethics Committee, Delivery of Legal Services Committee, and the Diversion Task Force. Additional committees include the Supreme Court Committee on Bar Admissions, and the New Hampshire Committee on Lawyer Assistance Programs.

           

Staff attorneys also served as faculty in a variety of educational programs, including: New Hampshire Bar Association (NHBA) Annual and Mid-winter meetings; two Practical Skills sessions; CLEs on Ethics and Domestic Violence; NHBA Statewide Professionalism Day; and The Nuts and Bolts of Criminal Defense Practice in New Hampshire. In addition, they gave presentations at the Guardian Ad Litem Training; Inns of Court, Hanover; and Franklin Pierce Law Center.

 

III.        Committee Composition Update and Outcomes

           

The Complaint Screening Committee is comprised of nine members: five attorneys and four lay members. Because a lay member (Stephen A. Bartlett of Concord) temporarily became unavailable to serve, Virginia C. Beecher was temporarily appointed during his absence. This Committee met once each month, except in July and August.

           

The Complaint Screening Committee processed the following matters in 2005:


 

2005

2004

Requests to Reconsider Matters Not Docketed (denied)

23

  7

Matters Docketed upon Reconsideration of Non-docket

  3

  0

Matters Referred For A Hearing

27

32

Requests to Reconsider Dismissals or Referrals for a Hearing

  0

  9

Dismissals With No Professional Misconduct

46

24

Dismissals With No Professional Misconduct with a Warning

12

11

Matters Closed Without Prejudice

10

  3

Total

121

86


           

The Hearings Committee is comprised of 22 attorney members and 13 lay members. Although they generally only meet as hearing panels, the entire Committee met as a group on November 16, 2005, to participate in a session focused on writing uniform Hearing Panel reports.

           

The Hearings Committee Chair appointed hearing panels that were each comprised of three attorney members and two lay members in 14 matters, consistent with 2004. There were two pre-hearing conferences in one matter and one pre-hearing conference in one matter, 14 one-day hearings, one two-day hearing, and one four-day hearing. Hearing panels convened at various locations around the State, including: the Administrative Office of the Courts, Concord; Concord District Court; Rockingham County Superior Court, Brentwood, and the Attorney Discipline Office, Concord.

           

Hearing panels were convened for twice as many matters in 2005 than in 2004, because Disciplinary Counsel settled the matters by stipulation. There were two matters pending at the Hearings Committee stage that were referred to the Professional Conduct Committee by stipulation in 2005.

           

The Professional Conduct Committee (PCC) is comprised of eight attorney members and four lay members. Richard B. McNamara of Manchester completed his one-year term on the Committee, while serving as New Hampshire Bar Association Vice President. Eleanor Wm. Dahar of Manchester began her term as the New Hampshire Bar Association Vice President and was appointed to the Committee on August 1, 2005. One lay member resigned before the end of her term.

           

The PCC convened a meeting on July 8, 2005, to discuss how the new system was working thus far, from each Committee’s perspective. The chairs and vice chairs of each committee, as well as ADO staff, attended the session. Feedback was brought to each Committee, either at their monthly meeting or, in the case of the Hearings Committee, at the session held on November 16, 2005. One immediate change, implemented as a result of the meeting, was that stronger communication channels between committees have been opened. The PCC met monthly except in August, 2005.

           

The PCC acted on the following matters in 2005:


 

2005

2004

Closed without Prejudice

  4

   0

Dismissal without a Hearing

12

  5

Dismissal w/ Warning without a Hearing

  9

  3

Referred for a Hearing (not closed)

  1

  0

No Misconduct after Hearing

  1

  0

Stipulation to Misconduct and Public Censure

  3

  0

Misconduct on the Merits after Hearing

                Reprimand- 3

                Public Censure- 2

                6 mo. Suspension- 2

                Recommend 1 yr Suspension- 1

                Recommend 2 yr Suspension- 2

                Recommend Disbarment- 6

16

  7

Recommendation to Deny Motion for Reinstatement

  1

  0

Approve Payment Plan (not closed)

  1

  0

Recommendation to Accept Resignation

  1

  0

Grant Protective Order (not closed)

  1

  0

Deny Protective Order (not closed)

  1

  0

Filing of notice of discipline by other jurisdictions

  0

  1

Total Closed

51

16


 

­IV.        Statistics

Figure A illustrates the types of underlying legal matters giving rise to docketed complaints in the past two years.               

FIGURE A

Underlying Legal Matters

2005

Percentage

In 2005

2004

Family Law/ Adoption

46

42%

27

Criminal

26

23%

23

Real Estate

7

6%

17

Probate/ Estate Planning

6

5%

10

Personal Injury

8

7%

9

Bankruptcy

2

2%

4

Other

4

4%

4

Employment Law

0

0%

2

Professional Malpractice

1

1%

2

Workers Compensation

1

1%

2

Business Law/ Contracts/ Corporate

8

7%

1

Collection/ Consumer Protection

2

2%

1

Municipal/ Zoning, Eminent Domain

0

0%

1

Total Legal Matters

111

100%

103

 

Figure B shows the number of years the attorney was admitted to practice in New Hampshire at the time the complaint was filed. *Six matters identified two attorneys.

FIGURE B

 

2005

Percentage in 2005

2004

1 – 5 years in practice

15

13%

8

6 – 10 years in practice

21

18%

19

11 – 15 years in practice

17

14%

22

16 – 20 years in practice

29

25%

21

21 – 25 years in practice

9

8%

18

26 – 30 years in practice

12

10%

12

31 – 35 years in practice

5

4%

1

36+ years in practice

9

8%

1

Total Attorneys

117*

100%

102

 

Shown in Figure C is the distribution of misconduct findings for the past two years, sorted by the number of years the attorney was in practice at the time of the filing. 2004 findings were significantly lower, due to the changes in the attorney discipline system that year.

FIGURE C

 

2005

2004

1 – 5 years in practice

1

0

6 – 10 years in practice

7

0

11 – 15 years in practice

4

3

16 – 20 years in practice

2

2

21 – 25 years in practice

2

1

26 – 30 years in practice

1

1

31 – 35 years in practice

2

0

36 + years in practice

1

0

Total Findings

20

7

 

Figure D is a description of the Rules that were found to have been violated in 2005 and 2004.

FIGURE D

Rule 1 Violations: Client-Lawyer Relationship

2005

2004

          Competence

10

7

          Diligence

4

4

          Communication

12

13

          Fees

2

0

          Conflict

2

2

          Other Conflict

1

0

          Former Client

0

1

          Safeguarding Client Funds

10

3

          Terminate Relationship with Client

5

4

 

 

 

Rule 3 Violations: Advocate

 

 

          Meritorious Litigation

1

0

          Candor to Court

6

2

 

 

 

Rule 4 Violations: Persons Other Than Clients

3

2

 

 

 

Rule 5 Violations: Responsibility Re:

Non-lawyer Assistants

3

1

 

 

 

Rule 7 Violations: Info about Legal Services

0

1

 

 

 

Rule 8 Violations: Integrity of Profession

6

3

 

 

 

Rule 50 Violations: Trust Accounts

8

4

Total Violations

73

47

 

Figure E illustrates violations of Rules as a percentage of total violations. All matters also include a violation of Rule 8.4(a), which is not calculated into the percentage.

FIGURE E

 

2005

2004

Rule 1

63%

72 %

Rule 3

11%

4 %

Rule 4

4%

4 %

Rule 5

4%

2 %

Rule 7

0 %

2 %

Rule 8

8 %

7 %

Rule 50

10%

9 %

Total

100 %

100 %


Figure F shows a breakdown of the number of complaints that were concluded by the Attorney Discipline System, arranged by the year the complaint was docketed, for the years 2004 and 2005.

FIGURE F

Year of Complaint

Concluded

2005

Concluded 2004

2004- and earlier

84

63

2005

4

X

 

88

63

 

V.         Disposal of Matters by the Supreme Court

            Disciplinary Counsel filed one petition for a one-year suspension, two petitions for a two-year suspension, and five petitions for disbarment in 2005. The Supreme Court concluded ten matters (one dismissal, one reprimand, two six-month suspensions, one one-year suspension, three disbarments), and had ten matters pending. Some matters concluded had been filed in previous years.

 

VI.        Conclusion

            The attorney discipline system’s work in 2005 focused on addressing the backlog of outstanding cases from 2003 and earlier. It is anticipated that the length of time matters are open will continue to decrease in the next year as the functioning of the system becomes more efficient.

Your New Hampshire resource for professional investigative services since 2005.

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