Bar News - June 21, 2017
More Changes Coming to NH Attorney Discipline Process
By: Kristen Senz
Docketed 2016 Grievances: Top 5 Trouble Areas
ADO Statistics Show Shifts in Complaint Patterns
By Kristen Senz
Mid-career attorneys are more likely to encounter problems at the NH Attorney Discipline Office than new or senior lawyers, according to ADO statistical reports.
Of the 53 docketed complaints (those found to warrant investigation) at the ADO last year, 29 were against attorneys who had been in practice for 11 to 25 years; 14 targeted attorneys in practice between 21 and 25 years. Janet DeVito, general counsel at the ADO, believes this trend reflects the time period when attorneys are busiest in their careers.
“The big bell curve is usually between 16 and 25 years in practice,” she said. “I think you just have a larger critical mass of clients and cases. The more things you’re doing, the more likely someone is going to file a complaint about it, but that’s my own speculation.”
The NH Supreme Court in 2015 adopted a rule that requires banks to report any overdraft in an attorney’s trust account directly to the ADO, which has contributed to an overall increase in the number of grievances filed. Last year, overdraft notices accounted for 21 percent of all docketed complaints, up from 14.5 percent in 2015.
The law practice areas that generate the most complaints fluctuate from year to year, but generally the areas in which emotions tend to flare and the personal stakes are high, such as family law, civil and criminal practice, top the list. Two years ago, 21 complaints against family law attorneys made up 47 percent of all docketed grievances. In 2015, that number fell to just 12.9 percent, and last year, it inched back up to 17 percent.
Criminal law likewise bounced from 9 percent of total complaints in 2014 to 22.6 percent in 2015. Last year, complaints against criminal defense attorneys accounted for 13.25 percent of all docketed complaints.
Nine attorneys were disbarred in 2016, and three have been disbarred so far in 2017, according to the ADO website.
The most frequently violated rule, according to ADO statistics, is by far Rule 1 of the Rules of Professional Conduct (Client-Lawyer Relationship). The most frequently cited subsection in 2015 was Rule 1.3 (Diligence), followed closely by Rule 1.4 (Communication).
Traditionally, an attorney’s client has been the source of a complaint, but in recent years, that has begun to change. In 2015, 17 docketed grievances were filed by the attorney’s client, 11 were court referrals and 11 came from the opposing party. Nine were from banks, and seven came from other attorneys. The remaining seven were a mix of self-reports, ADO internal reports and “other.”
The ADO expects to finalize and post its 2016 Annual Report this summer on its website
Over the past two years, the total number of ethics complaints filed annually against New Hampshire attorneys has risen by more than 30 percent, while the number of those grievances found to merit investigation has declined from 25 percent in 2014 to 21 percent last year.
During the same period, the NH Supreme Court has made several changes to Supreme Court Rules 37 and 37A, which govern the Attorney Discipline System (ADS). Those changes include the elimination of warnings, the introduction of summary suspension, requiring automatic disclosure of all trust account overdrafts from attorneys’ banks directly to the Attorney Discipline Office (ADO) and, most recently, permitting vertical prosecution at the ADO.
Combined with shifting attitudes among legal consumers and intensifying scrutiny surrounding legal ethics, these changes can lead to anxiety and increased pressure on New Hampshire lawyers. To help NH Bar Association members stay current on these changes and trends, Bar News examined the rule-changes and interviewed some key players in the ADS. (It is important to note that the ADS is separate from the association, unlike in some other states, where the state bar association oversees attorney discipline. The ADS in New Hampshire is an independent arm of the NH Supreme Court.)
The most recent rule-changes, which take effect July 1, enable “vertical prosecution” – increased collaboration and flexibility for staff attorneys at the ADO who serve as general counsel (initial screening) and disciplinary counsel (prosecutors).
“If there’s something that’s obviously going to be prosecuted, I can assign it directly to disciplinary counsel, but it doesn’t mean it’s automatically going to happen,” explains ADO General Counsel Janet DeVito. “To us, it’s not a huge change, because we work as a team anyway, but it also allows us to use whatever is going to be the most efficient process.”
Under the current process, general counsel conducts an independent investigation and presents it to the Complaint Screening Committee (CSC), which determines whether the case should proceed to disciplinary counsel for prosecution. Despite comparisons to the criminal justice system, where the CSC is likened to a grand jury, the ADS process is not secret in the same way grand juries are. General counsel and disciplinary counsel work in the same office and can discuss cases that have gone to the CSC; however, the new rules will permit disciplinary counsel to attend CSC meetings for the first time.
A proposal to adopt vertical prosecution at the ADO was among a set of recommendations the American Bar Association outlined in a December 2011 report – the product of a review by the ABA Standing Committee on Professional Discipline that found “some unnecessary barriers to efficiency that cause delay in the process.” Following a careful analysis that included seeking comments from the bar, the NH Supreme Court rejected the idea of incorporating vertical prosecution into the ADO process at the time.
But since then the ADO has seen some cases that have taken several years to reach resolution, prompting the Court to revisit discussions about ways to streamline ADO operations, said NH Supreme Court Justice Robert Lynn, who chairs the Court’s Advisory Committee on Rules. Lynn explains that the vertical prosecution proposal was the result of discussions with current and past participants in the four-part Attorney Discipline System, which includes the ADO, the CSC, the Hearings Committee (HC), and the Professional Conduct Committee (PCC). (See accompanying flow chart.)
By allowing vertical prosecution at the ADO, the Court is not removing any due process controls for attorneys that have any constitutional or other legal basis, says Lynn. “I don’t think there’s any legal authority that supports the idea that a lawyer has a right to have two people review it, as opposed to one,” he said. “There’s lots of due process in the system already.”
Following a public hearing on the vertical prosecution proposal before the Advisory Committee on Rules late last year, the committee voted 9-5 not to recommend that the Court adopt vertical prosecution at the ADO. During a lengthy debate, some committee members expressed concerns that it could be perceived by members of the bar that the committee was removing a layer of due process, while others said they failed to see the necessity for the changes.
Lynn said the Court ultimately decided to adopt the rules because its members felt strongly that it was important to add flexibility into the system to increase efficiency. Cases that last for years can negatively affect an attorney’s malpractice insurance rates and are stressful for attorneys and complainants. Duplication of work at the ADO also costs more, but Lynn said the budget was not a driving factor in the decision. The ADO’s budget for fiscal year 2018 is $1.15 million, up about $10,000 from last year.
DeVito is quick to explain that although the majority of complaints filed with the ADO never progress to formal charges, the office takes all complaints seriously. Out of 246 grievances filed in 2016 (up from 187 in 2014), the ADO docketed 53 (see sidebar).
“We read every single one and we take every one seriously,” says DeVito. “We don’t just think that because a lawyer is from a prestigious firm or has a spotless record or is active in their community that the lawyer couldn’t possibly have done anything wrong.”
Attorneys fund the operation of the system – for the past four years, the Court has assessed active members at $205 per year for this purpose; inactive members pay $10. If misconduct is found, attorneys must repay the cost of certain aspects of the investigation, such as audits and compliance reviews. Some money from fines also supports the system.
Oftentimes, the ADS process begins after a civil malpractice lawsuit has been filed in Superior Court. Under state law, the Superior Court must notify the ADO of all such claims. In some cases, complaints brought after the two-year ADS statute of limitations are only heard in court, where the limit is three years.
Preti Flaherty attorney Bill Saturley represents an increasing number of New Hampshire attorneys each year in ADS and civil malpractice cases. He attributes the increase in his ADS caseload partly to a trend over the past 20 years of legal malpractice insurance policies including a disciplinary rider, a provision that is now commonplace. He also notes that insurance companies are increasingly handling such claims internally.
Vertical prosecution, as Saturley sees it, is not likely to have a substantial effect on the outcome of ADS cases, but it will change the process. Cases that previously would take months to land on disciplinary counsel’s desk could now wind up there immediately. Saturley notes that current ADS staff members operate with a high degree of professionalism and evenhandedness. If that were to change, he cautions, not having a two-level process could have a greater effect on outcomes.
Once a case is referred to disciplinary counsel, an investigation ensues that can result in a formal “notice of charges” and a trial before a hearings committee. The PCC then considers sanctions and makes a recommendation to the Court, and either disciplinary counsel or the respondent can appeal. Saturley focuses on making sure cases never progress to a notice of charges. “If you have a notice of charges, you’re probably going to have a hearing, and nobody wants to cross that line,” he said.
Ethical issues can emerge in gray areas, but there are some real “nuclear areas” that almost always trigger an investigation by the ADO, says Saturley. The most common of these is trust accounting irregularities. When a bank notifies the ADO of an overdraft in a lawyer’s trust account, the ADO conducts a compliance review and in some cases hires an auditor. DeVito said many of these cases involve clerical error or attorney mistakes and are resolved through education by the ADO, without the cases being docketed.
Another disciplinary danger zone, although less common nowadays, still happens on occasion – attorneys sleeping with their clients. “It’s kind of mind-blowing that people still do it, but they do,” says Saturley. “I guess it’s revealing about how powerful the human sex drive is, because you just can’t believe it, but there it is, and they still do it.”
Asked about this, DeVito notes that in the old days, when a client could not pay her legal fees, a kind of quid pro quo “arrangement” was not all that uncommon, “and we didn’t have the rule against it, by the way; you had to use the conflict of interest rules.” (That changed in the early 1990s.)
DeVito advises attorneys to respond to any request for information from the ADO. “We often ask the lawyer for a voluntary response before we decide whether to docket a case,” she explains. “If we ask a lawyer for a voluntary response, we encourage them to send one, because if they don’t provide that, we have to rely on the grievance.”
Other ADS-related rule amendments in recent years have included summary suspension, which only applies to attorneys who do not respond to the ADO at all, despite numerous attempts at contact. Warnings, which did not constitute attorney misconduct but were posted to the ADO’s website where they were searchable by the public, were eliminated. DeVito said the ADO has multiple methods for educating attorneys about ethics mistakes through diversion programs and the dismissal of complaints after the attorney has met certain conditions.
The increasing number of grievances filed annually against New Hampshire attorneys reflects an increased awareness among members of the public about the existence of the ADS as a place to file complaints against and potentially embarrass attorneys, says Saturley.
“The environment has changed,” he adds. “There’s a lot more attention given to ethics and ethical behavior than there was when I was a young lawyer.”
To protect themselves, New Hampshire attorneys can review the Rules of Professional Conduct and Supreme Court Rules 37 and 37A, which govern ADS process and operations. ADS annual reports are available for review on the ADO website. NH Bar members who encounter an ethical quandary can ask the NH Bar Association Ethics Committee for advice by contacting Robin E. Knippers, the NHBA staff liaison to the committee.