In accordance with New Hampshire Supreme Court Rule 37A(3)(b)(2), you are hereby notified that a hearing on the above entitled matter has been scheduled for Wednesday, November 14, 2001 at 1:00 p.m. at the Administrative Office of the Courts Building, Noble Drive, Concord, New Hampshire. Will you please inform the receptionist of your arrival.
This complaint is based on statements made by Judge Gerald Taube that he is concerned that you may have violated Rule 8.2(a) of the Rules of Professional Conduct by asserting in a Motion to Recuse that he had made an "intentional misrepresentation" of fact regarding the existence of a counsel list and a "complete fabrication" of his motives regarding his refusal to appoint you as counsel; that he is concerned that your allegations about his lack of integrity were made with reckless disregard as to their truth or falsity; that it appears that prior to the preliminary hearing on December 15, 1999, when you filed an Answer and first appeared before the Court, you had decided that no such list or rules existed and that the Court could not therefore deny your request for appointment based on good cause; that you published the content of this motion on your Web site before you had given the court an opportunity to respond and then referred to the list as "The Magical Mystery List", further impugning the integrity of the Court; that Judge Taube also expressed concern that you undertook to represent two respondents, who may have limited capacity, without addressing the stringent requirements of Rule 1.7 of the Rules of Professional Conduct; that even after the Court brought this Rule to your attention and required you to address it with your clients, your responses at the hearing and later in writing suggest a lack of understanding of the Court's Order and Rule I. 7(b); that an example of this lack of understanding was when, at the hearing, you referred to your joint representation as an "all or nothing" and in your letter to the Court you seemed to reduce the issue to testimony on "old" matters; and that you did not give the impression that you applied the detached professional judgment to identify and analyze the risks of joint representation in this case.
In your initial reply, you state that you do not intent [sic] to retract the statement that Judge Taube lied in his order and you will submit evidence to show that it was not a reckless statement; that in a subsequent reply, you said you were representing a non- offending parent who objected to having to comply with the Court's Orders to obtain custody from DCYF; that you think Judge Taube has a personal problem with you, directly related to your first day in court when he perceived that he was trying to explain to you how it was going to work in his courtroom, and you clearly indicated to him that his decision would be appealed; that you had spoken to your clients' confidant over the course of a year or so over issues involved in their abuse and neglect matter; that both before and after taking the case, you discussed at length with the confidant the fact that they were extremely unhappy with their court appointed attorneys; that according to the confidant, the court appointed attorneys had done little for them in the past, and he felt they were not working in their clients' joint interest in reuniting the family; that you watched the Division's strategy of "divide and conquer" reflected in its counsel's casual statement in the hearing that the parents have conflicting interests; that given the court's long lecture from the bench on the possible conflicts "always being resolved in favor of removing doubts, you were concerned in the hearing about what you perceived as the court's acquiescence, even encouragement in the Division's legal strategy; that the court requested another attorney to write a legal memorandum on the issue of conflict but did not request your input; that you did your own research, and spoke to the clients and determined there was no conflict significant enough to deny them the representation you promised them; that to the extent Judge Taube got the impression that you had not given the matter a great deal of thought, he was incorrect; that you had given it much thought and searched the record before you filed your appearance; that you had not discussed with the clients directly the advantages of dual representation; that the court asked you to correct that and you did; that you also indicated that you saw a larger conflict in representing one party when you had gained the confidence of both; that it was at the initial meeting with parents, when they handed you the papers they had received, that you discussed that they had no court appointed attorneys, only court appointed guardians ad litem; that prior to the hearing, the court never clearly defined the respective roles of the attorneys in attendance; that you had never received their appearances and your clients indicated they had never received phone calls indicating they were court appointed attorneys; that because of the background of your dealings with Judge Taube, you fully believed his original statement in the hearing on why he did not appoint you to represent the clients; that he stated that he would not be dictated to on the issue; that it was certainly not true that he did not appoint you because he had already appointed counsel prior to your filing of the motion, as stated in his order of January 26, 2000; that he had not appointed counsel, he had appointed guardians ad litem; that this was by far the more important of what you believe were Judge Taube's two lies; that with respect to the matter of a list of defense attorneys from the New Hampshire Judicial Counsel, you researched the issue and tried to determine how to be listed and requested a list from the various districts courts; that with the exceptions of three judges, plus Judge Kelly, you received no replies; that the issue of you calling the list of court appointed attorneys the "Magical Mystery List" is related to efforts you have made over time to research the list, not simply from events in Judge Taube's Courtroom on December 15, 1999; that Judge Taube was extremely offended you would call it that and incorrectly assumed that you were referring only to his response; that you perceived that he did lie on the fact that he had not appointed counsel for the couple prior to your filing the motion to appoint yourself as counsel; that you also felt that he lied to you about being able to obtain the list from the clerk when the clerk indicated after the hearing that she had no idea what he was talking about; that you can't see how you impugned the integrity of his court by not having the list that is inapplicable to termination hearings or abuse and neglect proceedings, when Judge Taube didn't use that list to get Attorneys Joseph J. Tropiano and Lisa Simili to the court anyway; and that you do not think that you made the statements about Judge Taube recklessly.
Further, the Committee has been provided with copies of the following materials by the New Hampshire Supreme Court Judicial Conduct Committee; a) your letter of complaint against Judge Taube dated March 28, 2000 b) Judge Taube's response dated June 5, 2000 and c) Respondents' Second Motion to Recuse Judge Taube. In a letter dated October 12, 2000 you state that Judge Taube's answer "indicated essentially that he did not know the difference between a GAL and an attorney;" that his answer stunned you; that "to the extent that I said he was a liar before reading that statement, I absolutely believed it, and believed I had duties regarding his statement, which I fulfilled with respect to my clients and the Judicial Conduct Committee;" and that "as to the facts known to me at this time now stand, I would not make the same allegation, nor do I believe that I would have had a duty to report his conduct or ask for his rescusal based on misconduct had I known that he did not know the difference between the two roles in litigation."
Involved in this complaint are questions under the Rules of Professional Conduct, in particular, but not limited to Rules 1.7(b); 8.2(a) and 8.4(a). More specifically, it is charged that by making the statements that you made to the Court in pleadings and by publishing those statements on your Web site, you made statements with reckless disregard to their truth or falsity concerning the integrity of a judge and that by attempting to provide joint legal representation to you clients, you may have violated Rule I. 7(b) because your representation of each client potentially could have been materially limited by your responsibilities to the other client and that because of the aforesaid conduct you engaged in conduct in violation of the Rules of Professional Conduct.
You are instructed to bring you [sic] underlying client file with you to the hearing.
You are reminded that the Committee issued a protective order concerning this matter on April 6, 2001 that when a hearing is held, all materials that are submitted as part of the record, and those materials that will become part of the public file, will be required to have proper names redacted so as to avoid violating the intent of RSA 169-C:25. You are also reminded that the Family Division at Brentwood issued an Order in the underlying matter on May 28, 2001 in which the Court authorized the Committee access to the materials, including transcripts, in the underlying case, pursuant to its authority in RSA 169-C:25 (I), for use in a public disciplinary hearing. The access and use of that material was specified to be subjected to the following restrictions and protective orders. The minor and minor's parents last names and addresses shall be redacted before any use as well as any other information that would identify them.
You are hereby advised that any failure to attend this hearing may subject you to findings of professional misconduct and to the imposition of or request for appropriate sanctions.
Any and all further notices concerning this hearing, including any adjournment thereof, shall be given by Robert C. Varney, Chair of the Committee. There will be no continuances except for extremely good cause shown.
You are advised that you may be represented by counsel at the hearing and that you may have witnesses present and may present evidence in your own behalf.
Pursuant to Supreme Court Rule 37(17)(b)(2), this Notice of Charges and the Committee's file (other than work product and internal memoranda of the Committee) is now a public file and the proceedings before the Committee ( other than deliberations) and the decision, shall be public, subject to the above referenced protective orders.
It is important to note that in any given matter, not every member of the hearing panel is likely to have read the entire file. For this reason you should be prepared to present their positions at the hearing. To the extent that additional documentation will be presented, it is requested that at least four copies be submitted to the panel.
Professional Conduct Committee
By: /s/James L. DeHart, Administrator
cc: Robert C. Varney, Chair
Bruce A. Cardello, Hearing Panel Chair