Court Appointed Lawyer Process
and "The Magical Mystery List"

The US and NH Constitutions provide that citizens have the right to a court appointed attorney if they cannot afford their own. This does not necessisarily mean that you have the right to the attorney of your choice, but common sense suggests you should get an attorney who wants to further your interests. However, the courts have refused to appoint me when requested by potential clients and I'm finding that there's no way on to their lists of potential court-appointed lawyers. I'd expect that DCYF would prefer I just disappear, but shouldn't the court system want to appoint attorneys who will work hard for their clients?

This page records my efforts to encourage the courts to appoint me.

Table of contents:

This journey began at a hearing where a couple had asked me to represent them in a case. Like many people accused of abuse/neglect by DCYF, they couldn't afford a lawyer and I asked to be appointed by the court.

December 15, 1999

Donald D. Goodnow, Director
Administrative Office of the Courts
Noble Drive
Concord, NH 03301

Re: Right to Know

Dear Mr. Goodnow,

Following a request to have myself appointed in a parental termination case, Judge Taube indicated that "he would not be dictated to" and was therefore not appointing me. Apparently, Judge Taube believes that a request to be appointed amounts to dictating to the Court his decision. I asked him for a copy of the rules regarding appointment of attorneys on both Child Abuse and Neglect cases in Family Court and in Parental Termination cases. He indicated that I could pick up a copy of those rules from the clerk of Court.

Later, in the clerks office, I spoke with Lisa (last name unknown), who indicated that she never heard of rules regarding appointment of attorneys in abuse and neglect cases, and she furthermore did not have a list the judge uses to appoint attorneys in these proceedings. Please forward to me at your earliest convenience a copy of any Court policies on appointment of attorneys in abuse and neglect hearings in Family Court, as well as any policies or lists kept by the Court of attorneys that they normally appoint in those cases. I would also like to know the procedure to be placed on these lists, for both district courts and Family Courts. Thank you.

Paula J. Werme, Esq.

Cc: File
The Honorable Edwin Kelly
Ned Gordon, Chairperson
DCYF Field Practices Study Committee

Simultaneously, I sent a letter to Judge Kelly, who oversees the district courts.

December 15, 1999

The Honorable Edwin Kelly
Administrative Office of the District Courts
PO Box 389
Concord, NH 03302-0389

Re: Right to Know

Dear Judge Kelly,

With respect to the enclosed Right to Know submitted to Donald Goodnow, Director of the Administrative Office of the Courts, I would like similar information for the District Courts. Specifically:

I would like a copy of the Court rules for appointing attorneys on abuse and neglect cases, and how an attorney makes it known to the Court that they wish to be on the list of appointments.

With respect to the Concord District Court, I would also like a copy of any list kept by the Court of attorneys the Court considers for appointment, along with a list of how many cases each attorney on the list was appointed to for each of the years 1998 and 1999, along with a total of RSA 169-C cases handled by the Concord District Court, If it is possible, please indicate how often each attorney was appointed to represent a parent, child, or as a Guardian ad Litem. In the case of the Guardians ad Litem, a list of names will not be necessary, as it is accessible on the World Wide Web.

If there is no list of attorneys considered for appointment, I would like to know how each judge determines which attorneys to appoint in abuse and neglect cases.

Paula J. Werme, Esq.

Cc: Ned Gordon, Chairperson
DCYF Field Practices Study Committee

December 23, 1999

Re: Appointment of Attorneys on Child Abuse and Neglect Cases

Dear Ms. Werme,

I have your December 15 letter regarding appointment of attorneys in abuse and neglect cases. My office is not the custodian of rules or regulations which would guide trial court judges in the exercise of discretion in appointing attorneys in abuse and neglect cases. Nor am I the custodian of any court policies concerning appointment of attorneys in these cases. Finally, I have no lists of attorneys available for appointment in abuse and neglect cases.

I have sent a copy of your letter, to Judge Kelly who serves as Administrative Judge of the District Courts so he can consider these issues.

Yours very truly,
Donald D. Goodnow, Esq.

December 20, 1999

To date I have not received a reply from Judge Kelly. At this point, if someone were to ask me how to get a court-appointed lawyer to best represent a case, I would not be able to answer the question. I'd have to suggest they ask the court and wish them luck.

Time has passed and despite my mail on the above matters, I've received no additional information. Meanwhile, the case continues, as do references to this mystical list.

February 2, 2000


NOW COME F. and D. W., of [], NH, by and through their attorney, Paula J. Werme, Esq., and hereby move this honorable Court to recuse Judge Gerald Taube from the proceedings. In support of said Motion, Respondent's state the following:

  1. Respondent's filed a Motion to Appoint Paula Werme as Counsel for Parents on November 15, 1999. At the time of the Motion, the W.s had NO appointed counsel pursuant to RSA 170-C:10, but had appointed Guardians ad Litem pursuant to RSA 170-C:10.

  2. At the hearing on the Motion, Judge Taube represented that Attorney Werme was not on the Brentwood Family Division's list of attorneys to appoint, at which point Attorney Werme asked the judge for both a copy of the list, and a copy of any Court rules pertaining to ways to listed on the list of attorneys considered for appointment.

  3. Judge Taube indicated that the list could be viewed downstairs after the hearing.

  4. Following the hearing, undersigned attorney did present herself at the clerk's office, and asked for both the list of attorneys from which the judge chooses attorneys to appoint, and a copy of any rules pertaining to that list. The Court clerk, Lisa, indicated that she had no copy of rules pertaining to the appointment of attorneys in abuse and neglect matters and in parental termination cases, and that she was unaware that there was any list used by the judges to appoint attorneys. She referred undersigned attorney to the Administrative Office of the Courts.

  5. Undersigned attorney then proceeded to submit Right to Know Requests to both Donald Goodnow, Director of the Administrative Office of the Courts, and to Judge Edwin Kelly, the Administrative Judge of the District Courts. To date, Judge Kelly has not responded to the letter dated December 15, 1999. The response of Donald Goodnow is enclosed, and made a part of this pleading, along with copies of the letter sent to him. It indicates that the Administrative Office of the Courts is not in possession of any rules that would guide the trial Court in the "exercise of their discretion" in appointing attorneys in abuse and neglect cases, nor any policies concerning the appointment of attorneys in these cases, nor any lists of attorneys available for appointment in abuse and neglect cases.

  6. Pursuant to the facts and the response of Attorney Goodnow, undersigned attorney believes that the statements of Judge Taube in his Order dated January 26, 2000, in which he stated, "The Court declined the appointment because it had already appointed counsel from its approved list of counsel" constitute intentional misrepresentation, because there does not exist an "approved" list of counsel, and furthermore, there are no rules in place nor procedures to follow in order to be placed on an "approved" list of counsel.

  7. Because this Court went so far as to memorialize a complete fabrication in explaining its rationalization for its order, undersigned attorney believes that this Court declined to appoint her for reasons unrelated to the real reasons for non-appointment. More importantly, the misrepresentations of the Court must be reported to the judicial conduct committee by undersigned attorney, pursuant to the Professional Rules of Conduct.

  8. The misrepresentations of the Court leads undersigned attorney to believe that her clients will have no chance at a fair adjudication on the merits of the petition.

WHEREFORE, Respondent's respectfully request the following relief:

  1. Recusal of Judge Taube from the matter.

  2. For other and such relief as may be just.

Respectfully submitted by and through their attorney,

Paula J. Werme, Esq.

DCYF's attorney was not impressed with my arguments:

February 2, 2000


NOW COMES DCYF, by and through counsel Everard E. Hatch, and respectfully objects to the motion for recusal filed by Atty Werme. In support thereof the Division states the following:

  1. At preliminary hearing on December 15, 1999, Atty Werme appeared and demanded to be appointed as counsel for Mr. & Mrs. W. [FN1] The Court declined to appoint Atty. Werme because it had already selected five attorneys from the Court's list of court-appointed attorneys, four of whom were present at the preliminary hearing.[FN 2]

  2. Attorney Werme now accuses the court of "intentional misrepresentation" and "complete fabrication" because, in her belief, there is no list of court-appointed attorneys and therefore the Court could not have appointed attorneys from that list to appear in the case.

  3. Attorney Werme's accusation is groundless. There is a list of qualified court-appointed attorneys, and the Court did select five attorneys from that list to be present at the preliminary hearing. [FN3]

WHEREFORE, the Division respectfully requests that this Honorable Court:

  1. Deny Attorney Werme's Second Motion for Recusal;
  2. Order such other relief that the court deems just and proper.

Respectfully submitted,
Everard Hatch, Esq. for DCYF

FN. 1. Attorney Werme was not on the list of court-appointed attorneys at Brentwood Family Court at the time she demanded to be appointed.

FN 2. Prior to the preliminary hearing, the following attorneys were selected from the list of court appointed attorneys to appear at the preliminary hearing: Atty Patricia Frim as GAL for children; Atty Phil Cross as GAL for Mrs. W, Atty Phil Desfosses as GAL for Mr. W.; Atty Neil Reardon as counsel for Mr. W. Atty Joseph Tropiano as counsel for Mrs. W. Attys Frim, Cross, Reardon, and Tropiano were actually present at the preliminary hearing; Atty Desfosses was elsewhere in bldg.

FN 3. Atty Werme's false accusation can only be seen as an effort to draw attention away from her own misconduct in this case. Just prior to the preliminary hearing, Atty Werme filed several substantive pleadings indicating that she had already undertake joint representation of Mr. and Mrs. W. However, at the preliminary hearing, Atty Werme Acknowledged that she had not consulted with Mr. and Mrs. W regarding potential conflicts and disadvantages of joint representation, as required by Rule 1.7(b) of the NH Rules of Professional Conduct. See Letter from Atty Joseph Tropiano to the Court dated December 21, 1999 regarding joint representation of Mr. and Mrs. W by Atty Werme.

There are some pretty harsh wording about me in that motion. Here are some detailed comments.

Notes: Re: FN 1. I did not "appear" and "demand to be appointed" on December 15, 1999. I filed enclosed motion to be appointed on October 15, 1999, at which time there were Guardians ad Litem appointed for the clients, and NO attorneys. The court, apparently because they did not wish to appoint me as attorney for the parents, chose to have five counsel present at preliminary hearings, one issue which should have been taken up at the time was the issue of my motion for appointment.

Re: I submitted ample evidence with my Motion for Recusal that there was no "List," and following the receipt of this Objection, I contacted Everard Hatch, and said that he certainly must have access to the "approved list" if he was so certain that it existed to accuse me of making "false accusations."

He indicated that he had never actually seen such a list, but there was a process by which an attorney gets on the "Provider list" for DCYF, and that it involved submitting an application to them. I indicated to him that I was already on that list, having been paid in several court appointments for cases last year. He then indicated to me that he wasn't sure, but he thought that each court kept their own list of "approved" attorneys. My point exactly, that was the list I was attempting to obtain from Brentwood Family Court. I was told by the clerk that she had no idea what I was talking about.

Note on FN3. My recollection was that I represented to the court that to the extent that Professional Rule 1.7(b) requires me to explain the potential conflicts and disadvantages of joint representation, that this representation and explanation had been made. The rule also requires that the attorney explain the "advantages and risks" involved in joint representation. I did not have the Code of Professional Responsibility with me in court, and the rules was either read to me or explained to me that I must explain the advantages of dual representation to the clients (having two attorneys). This I did not believe I had undertaken, and represented this to the court, and indicated that I would rectify it as soon as possible. Upon re-reading the Rule, I do not believe I was specifically required to word the discussion in terms of the advantages of dual representation, but could place in the context of the disadvantages of joint representation.

I received a pointer to someone at the NH Judicial Counsel which handles "contract attorneys" which sounded pretty much like what I want to see. I requested information about getting on the list and how often the list is forwarded to the Family Court system. However, the response explained their role involved criminal cases. It says that they do not cover abuse/neglect cases and that those are handled by "the so-called assigned counsel list in the District and Municipal Courts."

March 30, 2000

Paula J. Werme, Esq.
83 North Main Street
Boscawen, NH 03303

Dear Attorney Werme,

I am writing in response to your request for information received yesterday.

You request information with respect to contract attorney appointments in Family Courts. I need to explain that the Contract Attorney Program run by the Judicial Counsel relates to criminal appointment in Family Division courts, District and Municipal Courts and Superior Courts. Cases on appeal to the Supreme Court are handled by either the Appellate Defender or a Contract Appellate Attorney. An attorney who is awarded a contract agrees to handle representation in specific geographic regions/courts. We do not have a separate contract for Family Division courts.

I have enclosed a copy of the Agreement for Contract Attorney Services Pursuant to RSA 604-A:2-b. This document serves as the universal agreement and is then modified to make the agreement specific to the attorney's geographic area. You will note that under the terms of this agreement, contractors cannot handle first and second degree murder cases and abuse and neglect cases. In the cases of abuse and neglect, appointment is handled through the so-called assigned counsel list in the District and Municipal Courts. Since 1995 the statute calls for the legal representative of the child to be a GAL. Overall, the contract serves as the second tier of criminal representation provided in the statute. In the first instance, the Court is required to appoint the Public Defenders, who likewise, are not assigned in abuse and neglect cases.

Applicants for a Contract fill out an application which is reviewed by the Executive Director as to relevant experience. Generally, the Council attempts to select attorneys who have had prior criminal defense representation. Attorneys must complete the questionnaire and be selected based on experience for an interview with the Judicial Counsel, through its Indigent Defense Committee. The availability of contracts is directly related to a Court's caseload and whether the Public Defender Program has adequate resources available to handle that caseload. Since the Contract does not provide a "guarantee", it is important that we write contracts that can be met by the attorneys based upon the analysis of available caseload.

All courts in the state receive a copy of the enclosed Listing of Current Contract Attorneys. I do not forward a copy of the List to the Administrative Office of the Courts as they play no direct role in the assignment of these cases. As I am sure you know, the actually assignment of cases is made at the local Court level. I merely provide a List of available contract attorneys and they make case assignments based upon need and availability of the attorney to make a scheduled Court date. Sometimes conflicts arise which preclude an attorney from accepting certain cases.

Each July 1 the contract period begins, based upon the state's fiscal year. Usually by mid-July to early August, this Office sends out an individual letter to each Court indicating who their contract attorneys for the year are. Since this list may be added to during the year, periodically we send out new contract lists. We send multiple copies of the List to each Court, although I sometimes find that it is hard to get the list into the hands of the person who actually assigns cases in a specific Court.

A copy of the Contract Attorney Questionnaire is enclosed for your reference. From the information submitted in response to the questions, the Judicial Council is able to form some initial assessment as to the general qualifications of the applicant. The interview itself helps clarify those qualifications. The number of contracts written is based upon caseload need and available appropriation.

You first question asks whether this is the correct office to request contract attorney status. I did place a call to your office, as I am not certain what you mean by "status"? Please give me a call or provide more specific details as to the information you are seeking.

The Judicial Council does maintain a separate contract with CASA of New Hampshire subject to Governor and Council Approval. This Contract provided direct financial support for the training and recruitment of CASA volunteers. As you know, CASA provides GAL representation in many abuse and neglect cases, the local Court make the determination whether to appoint a lawyer GAL, a non-lawyer GAL or a CASA volunteer in these cases. The statute does not mandate priority of appointment of counsel, the attorney is named from Assigned Counsel and is paid for by DCYF. As in all cases, the Court makes the actual appointment of counsel and selects who that individual is.

I hope you will find this information helpful. Please let me know if I can be of further assistance to you in this matter.

Sincerely yours,
Nina C. Gardner
Executive Director - NH Judicial Counsel

Now we have two year interlude. Judge Taube reported me to the Professional Conduct Committee about the above matters and referring to the list as the "Magical Mystery List" on this page. PCC wheels turn slowly, but a hearing into the complaint got things moving again. Most of that is documented on the PCC pages, as it is not pertinent here. However, the following letter shines new light on the matter:

The State of New Hampshire
Heidi Boyack
Two Noble Drive
Concord, NH 03301
FAX: (603) 271-3977
TTY/TDD Relay: (603) 225-4033
March 29, 2002
James L. DeHart, Administrator
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301

RE: Complaint #00-036,
Paula J. Werme v. Professional Conduct Committee

Dear Mr. DeHart:

I am writing to address Attorney Werme's questions concerning the Family Division documentation regarding the appointment of counsel recently sent to her by Attorney Elizabeth Hodges at my request.

In some cases, the court is required to appointment certain classification of counsel due to reimbursement constraints for the delivery of indigent services. For instance, in juvenile delinquency cases, the court must appoint an attorney from the public defenders office, unless the public defenders office has a conflict, in which case the court must appoint an attorney from the "contract attorney" list. If there is no contract attorney available, then the court may appoint an attorney based on criteria completely within the discretion of the court.

The statement quoted in Paula Werme's letter regarding - "Abuse and Neglect - any attorney, but cannot use public defender" - was taken from an informal abbreviated guideline created primarily to alert the clerk's office about system restrictions on the appointment of counsel. The statement indicates that any attorney, other than a public defender, can be appointed counsel for a parent in an abuse and neglect case. In these cases (as well as termination of parental rights cases) in which any attorney may be appointed, the court is free from any system constraint, but has the discretion to develop its own criteria for appointment of counsel. To this end, the Family Division, since its inception, has chosen routinely to utilize the "Contract Attorneys" list for abuse and neglect and termination of parental rights cases.

There are good reasons for relying on the "Contract Attorney" list when appointing counsel. The attorneys on the contract list are screened and monitored by the Judicial Council. Therefore, selecting an attorney from the "Contract Attorney" list provides some quality assurance that the attorney has the requisite legal competence, experience, and temperament to appropriately represent persons entitled to legal counsel. This has been the policy and practice, but there has never been a need to reduce it to writing. Please contact me if you and/or the Professional Conduct Committee have any further questions regarding this matter.

Heidi Boyack

cc: Honorable Gerald Taube
     Attorney Paula Werme

Contact Paula Werme, Esq. or return to Law Practice home page.

Last updated 2002 April 3.