Bar readies new approach to ethics cases

A lawyer hired to help a man start a business became president of the company — and fired the client who hired him. An attorney handling the legal affairs of an elderly woman wound up with the deed to her house. The cases that come before the state Supreme Court’s Professional Conduct Committee are seldom boring, and they are often time-consuming.

“Overwhelmed,” is how PCC member Toni Gray, a former Hopkinton selectman, describes her reaction to the responsibilities that come with serving on the all-volunteer committee, which deals with allegations of misconduct against members of the New Hampshire Bar. Gray, a full-time nurse, said investigating complaints, attending hearings and writing reports add up to about three hours a week, by her own “conservative estimate.”

She hopes the new Attorney Discipline System that will go into effect in January will help reduce the backlog of complaints.

“You’ve got some pretty unhappy complainants and nervous lawyers out there who are not satisfied if they have to wait a long time to have their issues investigated,” she said.

“We’ve got some (complaints) that are, like, three years old,” said James DeHart, the PCC administrator. “In recent times we’ve been working with an agenda with about 19 pages of cases.”

The numbers don’t tell the whole story, he said.

“I think in recent years, we’ve been docketing about 130 cases,” he said. “It’s been higher. It was 180 at one point.”

But the cases now are more complex, involving more phone calls, more letters, more filings. “So while the number of complaints docketed is down a bit, the amount of work is way up,” he said.

Under the Attorney Discipline System, three volunteer committees will be doing the work now handled by one. A nine-member screening committee, to include at least four non-lawyers, will forward complaints for further investigation. A hearings committee of about 20 lawyers and 10 public members will be divided into panels of three to five members each, to hear cases and make recommendations to the Professional Conduct Committee. The PCC itself will be reduced from 16 to 12 members — eight lawyers and four members of the public at-large.

Based on the report of a hearings panel, the PCC will either dismiss a case, with or without a warning, issue a reprimand or a public censure or order a suspension of up to six months. A longer suspension or disbarment would have to be imposed by the Supreme Court. Any of the sanctions imposed by the PCC also may go to the Supreme Court on appeal.

There also will be a new administrator to handle “a lot of the things that eat up my time now — payroll, retirement issues, dealing with leases, buying new furniture,” said DeHart, whose new title will be general counsel. Two secretarial positions will be added to create a full-time professional staff of 10. The annual fee charged lawyers to pay for the disciplinary system will be increased from $150 to $195.

Lapses and violations

Some cases, involving minor infractions of the Rules of Professional Conduct, may be diverted out of the disciplinary process if the offending attorney agrees to an alternative resolution. That might involve a continuing education program or a course in office management or anger management, depending on the nature of the offense, DeHart said, “the theory being that if we deal with the root problem we won’t get to see that person again.”

An attorney would be given that option only once, he said, and never on an allegation involving serious misconduct. The current system does not allow for any diversion, DeHart said.

“I’m sure more than half of the matters we receive don’t get docketed,” said DeHart. “If someone says, ‘On workdays, my lawyer refuses to make evening appointments,’ that’s not an ethics violation. That’s not anything we have any authority over.”

Not responding to a client’s inquiries, on the other hand, could reflect a lapse in ethics as well as courtesy. Someone might say, “I haven’t heard from my lawyer in four months. Nothing is happening on my case, my calls aren’t being returned and my letters aren’t answered.” That, said DeHart, raises “questions about whether the case is being diligently handled.”

Not every error or oversight by an attorney is an ethics violation, he noted.

“Somebody could go to the Registry of Deeds and do a title search and simply miss something,” said DeHart. “It’s not a matter of ethics — someone simply made a mistake.”

Bob Varney, a Wolfeboro attorney and part-time district court judge, recalls a suit he filed recently that had him involved in a conflict of interest.

“I had the case going when the lawyer representing the other fellow calls on the phone and says, ‘Varney don’t you know your partner drew up the deed on which (your client) is suing?’” His firm missed that connection in its conflict check, he said, because the earlier transaction had been filed under the name of the real estate broker, rather than the seller of the property.

“I had to withdraw immediately, with apologies all around,” said Varney who was a member of the Professional Conduct Committee from 1992 to 2002.

Even an honest mistake can contribute to popular anti-lawyer sentiment, he observed. “Someone might say, ‘I went into that office and had the deed drawn and now they’re suing me.’ Even if it’s not technically an offense, it does lead to us not being a beloved profession.”

Easing the burden

There are, however, serious allegations of willful misconduct the committee must consider, often involving complex issues and long hours of hearings.

PCC member Stephen Stepanek recently chaired a hearing involving eight days of testimony on a complaint against a Portsmouth attorney who had the deed to a elderly client’s Rye Beach home transferred to him as payment for past and future services.

“It was a complicated matter of whether there was undue influence involved,” said Stepanek, a retired businessman and state representative from Amherst. Now in his third year on the committee, Stepanek said the most interesting case he has heard involved an attorney who had helped a client incorporate an Internet firm involved in overseas trading. The attorney wound up as president of the firm and the client was fired, he said. “That one involved offshore accounts in the Cayman Islands and Zurich,” Stepanek recalled. “It was a very fascinating case.”

The committee recommended a six-month suspension of the attorney’s license. The appeal is pending before the Supreme Court.

“It’s not uncommon to have two or three days of hearings” on a single complaint, said Concord attorney Margaret Nelson, who chairs the PCC. “I just think the nature of the practice is more complex. You’re dealing with issuance of securities, probate court matters, very complex divorce issues.”

In scheduling hearings, she added, “we try to work around everyone’s calendars and schedule things as needed.”

With additional staff, more volunteers and separate committees for screenings and hearings, cases should move more quickly through the new Attorney Discipline System, Nelson said. Having a disciplinary counsel to present the complaint to the hearings panel should give all sides “a better idea of what the charges are and how to confront them,” she said. “We’re hoping to make the process fairer and more efficient for everybody.”

For more information about the Professional Conduct Committee or in applying as a volunteer in the new Attorney Discipline System, visit the New Hampshire Supreme Court Web site at www.courts.state.nh.us.