Appeal, PCC case 99-072

What should happen to an attorney who advises her client that it is okay to disobey a law that is obviously unconstitutional? Several court decisions conclude it is okay to disobey unconstitutional laws (but not unconstitutional court orders). However, the NH Supreme Court's Professional Conduct Committee has reprimanded me for telling a client that.

The full story is elsewhere, this page has just my appeal of the PCC's reprimand. I've omitted most of the cover form, it says little, but is difficult to translate to HTML.


SUPREME COURT DOCKET NO. tbd

NOTICE OF APPEAL
(Rule 7)

BRIEF DESCRIPTION OF NATURE OF CASE AND RESULT:

Following an article in the Concord Monitor concerning a Child Protection Act case heard on appeal in the Merrimack Superior Court, Judge Smukler referred undersigned attorney to the professional conduct committee, sating that undersigned attorney "did not seek" court approval before speaking to the Monitor. The article itself stated that "[the mother] loaned extensive medical, psychological and court records to the Monitor so her story could be told publicly."

The original PCC request for an answer to the complaint and the NOTICE OF CHARGES both stated that undersigned attorney had violated RSA 169-C:25, and made no mention of any other statutes. It is impossible to determine if a violation of RSA 169-C is made without referring to RSA 170-G:8-a, which defines the records which are the subject to non-disclosure under the statute, however. The plain wording of the NOTICE OF CHARGES and the REPRIMAND indicated that "confidential information" that is not prohibited from disclosure under RSA 170-G:8-a were included as a basis for a finding under the Rule. The wording makes it impossible to determine if the Committee actually found a violation of the statute, because it cites the disclosure of "confidential case information" as the basis for the finding.

To the extent that any disclosures may have been made to the reporter that would have been the subject of any statute prohibiting disclosure, undersigned attorney stated in reply to the Monitor article that it was her belief that the statute was "unconstitutional" as a prior restraint on free speech. In addition, it was further argued in the hearing on the matter that the provisions of RSA 169-C:25, the confidentiality provisions of the Child Protection Act do not prohibit the disclosure by a party of "medical, psychological and court records" to anyone. They prohibit, under RSA 169-C:25, I, disclosure of court records by court personnel, in their capacity as representatives of the state.

The committee also found, following a case submitted to them by undersigned attorney after the hearing in defense of the charge, that "Rule 1.2(d) permits a lawyer to counsel a client in making a good faith effort to determine the scope, validity, meaning, and application of the law but such a good faith effort should have included a discussion of the legal consequences to the client of the proposed conduct."

Because the NOTICE OF CHARGES did not include a component that undersigned attorney had not discussed the legal consequences to the client of the proposed conduct, undersigned attorney did not offer evidence that she had actually discussed the potential consequences of the conduct with her client. She asserts now, as she did in her response to the committee, that she regularly advises clients that RSA 169-C:25 is an unconstitutional prior restraint of free speech that strikes at the heart of 1st Amendment and Article 22 rights. She further asserts, although it was not included in the complaint response, because it was not an element of the charge, that she regularly advises all clients who bring up the issue of the statute's confidentiality provisions that should they be charged with criminal conduct under the statute, that she will defend them for free. She specifically recalls reviewing that information with the client involved in this complaint at length, although so long after the events, she does not recall the exact date of that discussion, except that it was before the Monitor interviews.

The Professional Conduct Committee reprimanded undersigned attorney without making a specific finding on the constitutionality of the statute she was alleged to have violated or advised her client that it was unconstitutional in NOTICE OF CHARGES, however, they appeared to agree with the Appellant that it was unconstitutional.

Undersigned attorney objects to the wording of the REPRIMAND in that it repeatedly states that "you testified that you will continue to advise your clients to violate this statute, until such time as the statute is upheld by the United States Supreme Court." In fact, undersigned attorney's wording to the Committee and to the Supreme Court was at all times was not that she would advise her clients to violate any statute, but that the statute itself is "void ab initio" and that the 1st Amendment and Article 22 of the NH Constitution represented their inviolable rights of free speech. The dissent in Walker v. Birmingham, 88 U.S. 307 (1967) most eloquently states the rule of law concerning laws imposing prior restraints of free speech:

The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it is invalid on its face. Lovell v. Griffin, 303 U.S. 444, 452-453; Thornhill v. Alabama, 310 U.S. 88, 97; Jones v. Opelika, 316 U.S. 584, 602, adopted per curiam on rehearing, 319 U.S. 103, 104; Cantwell v. Connecticut, 310 U.S. 296, 305-306; Thomas v. Collins, 323 U.S. 516; Staub v. City of Baxley, 355 U.S. 313, 319.

If the statute is void ab initio or need not be honored as being invalid on its face as a prior restraint on free speech, there can be no finding on the basis of counseling a client to "violate the law, " because the Constitution states the ultimate law on the issue.

STATUTE, ORDINANCE, REGULATION, RULE OR OTHER LEGAL AUTHORITY UPON WHICH THE CLAIM OF CIVIL OR CRIMINAL LIABILITY WAS BASED:

NH Rule of Professional Conduct 1.2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

RSA 169-C:25, 169-C:25. Confidentiality. [version effective at time of complaint.]

I. The court records of proceedings under this chapter shall be kept in books and files separate from all other court records. Such records shall be withheld from public inspection but shall be open to inspection by the parties, child, parent, guardian, custodian, attorney or other authorized representative of the child.

II. It shall be unlawful for any party present during a child abuse or neglect hearing to disclose any information concerning the hearing without the prior permission of the court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.

III. All case records, as defined in RSA 170-G:8-a, relative to abuse and neglect, shall be confidential, and access shall be provided pursuant to RSA 170-G:8-a. History Source. 1979, 361:2. 1983, 331:3. 1990, 19:2. 1993, 266:3, eff. Aug. 14, 1993; 355:4, eff. Sept. 1, 1993.

SPECIFIC QUESTIONS TO BE RAISED ON APPEAL, EXPRESSED IN TERMS AND CIRCUMSTANCES OF THE CASE, BUT WITHOUT UNNECESSARY DETAIL. SEE RULE 7(7). STATE EACH QUESTION IN A SEPARATELY NUMBERED PARAGRAPH. SEE RULE 16(3)(b).

1. IF AN ATTORNEY IS REQUIRED BY SOLEMN OATH TO SUPPORT THE CONSTITUTION OF THE UNITED STATES AND OF NEW HAMPSHIRE, AND UPHOLDS THAT SOLEMN OATH BY ADVISING A CLIENT THAT ARTICLE 22 OF THE NH CONSTITUTION GIVES HER AN INVIOLABLE RIGHT OF FREE SPEECH (MEANING SPEECH THAT IS WITHIN THE DEFINITION OF SPEECH PROTECTED BY THE FIRST AMENDMENT AND ARTICLE 22), IS IT A VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT RULE 1.2 (d) TO TELL THE CLIENT, BASED ON U.S. SUPREME COURT CASE LAW, THAT A LAW INFRINGING THAT RIGHT IS UNCONSTITUTIONAL, VOID ON ITS FACE, AND NEED NOT BE FOLLOWED?

2. GIVEN THAT THE ORIGINAL NOTICE OF CHARGES DID NOT REFER TO FACTS ALLEGING THAT SHE DID NOT ADVISE HER CLIENT AS TO THE POSSIBLE CONSEQUENCES OF PROPOSED CONDUCT, CAN AN ATTORNEY BE REPRIMANDED ON THAT BASIS WHEN SHE WAS NOT ON NOTICE THAT SHE HAD TO SUBMIT EVIDENCE AS TO HER COMPLIANCE WITH THE REQUIREMENT?

3. CAN AN ATTORNEY BE REPRIMANDED FOR FAILING TO SEEK "PERMISSION OF THE COURT" TO DISCLOSE OR ADVISING HER CLIENT THAT IT IS LEGAL TO DISCLOSE "CONFIDENTIAL RECORDS," INCLUDING COURT RECORDS, PSYCHOLOGICAL RECORDS OR MEDICAL RECORDS IN THE ABSENCE OF A STATUTE PROHIBITING SUCH BEHAVIOR OR REQUIRING PERMISSION OF THE COURT OR REQUIRING PERMISSION OF THE COURT TO DO SO?

4. IS A REPRIMAND ADMONISHING AN ATTORNEY FOR TELLING ONLY A CLIENT, AS OPPOSED TO THE WORLD AT LARGE, THAT A STATUTE CONSTITUTES AN UNCONSTITUTIONAL PROHIBITION ON FREE SPEECH SIMPLY A MEANS OF IMPOSING AN UNCONSTITUTIONAL TIME, PLACE AND MANNER RESTRICTION ON THAT SPEECH, AND PUNISHING OTHERWISE PROTECTED FIRST AMENDMENT AND ARTICLE 22 SPEECH AS WELL AS THE RIGHT OF THE CLIENT TO RECEIVE THE INFORMATION?

WITH REFERENCE TO EACH SPECIFIC QUESTION RAISED ON APPEAL, IDENTIFYING THE QUESTION BY ITS NUMBER, SPECIFY:

(A) The proper standard of review to be applied by the court to the question, citing relevant authority;

Because the REPRIMAND involves chilling the expression of core political speech at the heart of the protections of the 1st Amendment and Article 22,, on both the part of the attorney and the client, and the statute is presumptively unconstitutional, strict scrutiny is appropriate. Virginia State Board of Pharmacy v. Virginia Citizens Consumer County Council, Inc., 425 U.S. 748 (1976).

(B) the parts of the proceeding you would designate the court reporter to transcribe, or whether an adequate written substitute could be provided in place of a transcript; and

There is a video of the hearing in the hands of undersigned attorney. If the court does not wish to view the video tape, a transcript could be made from the official record.

(C) the case(s) most relied upon to support the moving party's position:

ABA Formal Opinion 85-352, July 7, 1985

Bantam Books v. Sullivan, 372 U.S. 58 (1963)

Care and Protection of Edith, 421 Mass. 703, 659 N.E.2d 1174 (1996)

Lovell v. Griffin, 303 U.S. 444

Near v. Minnesota, 283 U.S. 697 (1931)

New York Times v. Sullivan, 376 U.S. 254 (1964)

Thornhill v. Alabama, 310 U.S. 88

Walker v. Birmingham, 388 U.S. 307 (1967)

If the most extensive transcript designated above were ordered by the court, what is the court reporter's estimate (obtain directly from the trial court clerk) of the number of pages and the cost thereof:

Pages: 90 Cost: $350
Note: This was an audio transcript. The estimate may be less accurate than a court reporter's.

A DIRECT AND CONCISE STATEMENT OF THE REASONS WHY A SUBSTANTIAL BASIS EXISTS FOR A DIFFERENCE OF OPINION ON THE QUESTIONS AND WHY THE ACCEPTANCE OF THE APPEAL WOULD PROTECT A PARTY FROM SUBSTANTIAL AND IRREPARABLE INJURY, OR PRESENT THE OPPORTUNITY TO DECIDE, MODIFY, OR CLARIFY AN ISSUE OF GENERAL IMPORTANCE IN THE ADMINISTRATION OF JUSTICE:

The First Amendment, applied to the states through the 14th Amendment, and Article 22 of the New Hampshire Constitution provide strong protection to the right of free speech. This Reprimand involves a matter of first impression in whether or not an attorney can be reprimanded for telling her client about those constitutional protections.

"The freedom of speech and of the press guaranteed by the constitution embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment." Thornhill v. Alabama, 310 U.S. 88 (1940).

NH Rule of Professional Conduct and the Model Rules of Professional Conduct 1.2(d) prohibits a lawyer from counseling or assisting a client in engaging in behavior that the lawyer knows is criminal or fraudulent. When a statute plainly violates the constitutions of the United States and New Hampshire, a lawyer should, never-the-less, be free to counsel a client in the law, which includes using her knowledge of US Supreme Court case law to determine the scope, validity, and applicability of a statute without fear of professional repercussions.

In this matter, it is public knowledge in New Hampshire that the lawyer's position on the confidentiality provisions of RSA 169-C are well known to the public through her web site, to the legislature through her testimony, to this court via her prior contest of the NH Professional Conduct Committee's attempt at sealing the complaint itself. This court's ORDER in SMC 99-0003, In the Matter of Paula J. Werme, this court declined to order parties not to disclose information in the complaint itself, citing Keene Publishing Corp. v. Cheshire County Super.Ct., 119 N.H. 710 (1979), citing the strong legal presumption against use of prior restraints on speech and publication. Undersigned attorney has stated numerous times and on numerous occasions her opinion that the statute is an unconstitutional infringement of the right of free speech. Her own free speech, the right of her clients to receive truthful information, as well as her oath to support the constitutions of New Hampshire and the United States are seriously undermined by a professional conduct Reprimand on the matter.

This Reprimand serves as a means of chilling the free speech of herself and her clients concerning criticism of government action against them, and impliedly requires her to do the one thing that any ethical lawyer would never do, for any reason: lie to a client if asked about her rights. It is vital in a free society not only that the people have the rights of free speech, but that the exercise of that right not be impeded by restrictions or punishment to either the attorney or the client on attorney's right to advise them of their rights. In addition, no attorney should be required to choose between the lesser of two professional misconduct charges in counseling a client.

TITLE OF CASES WITH SIMILAR OR IDENTICAL ISSUES PENDING, OR EXPECTED TO BE ENTERED, IN THE SUPREME COURT (TO EXTENT KNOWN):

None Known

ATTACH TO THIS FORM THE DECISION BELOW , THE CLERK'S WRITTEN NOTICE OF THE DECISION BELOW, ANY ORDER DISPOSING OF A TIMELY-FILED POST-TRIAL MOTION, AND SUCH OTHER PLEADINGS AND DOCUMENTS AS THE COURT NEEDS TO EVALUATE THE SPECIFIC QUESTIONS RAISED ON APPEAL AND TO DETERMINE WHETHER THE APPEAL IS TIMELY FILED. LEGAL MEMORANDA, INCLUDING LEGAL MEMORANDA FILED WITH THE TRIAL COURT, SHALL NOT BE SUBMITTED WITHOUT THE PRIOR APPROVAL OF THE CLERK. INCLUDE A TABLE OF CONTENTS LISTING EACH ATTACHMENT AND REFERRING TO SEQUENTIALLY NUMBERED PAGES. IF THE PARTIES' REQUESTS FOR FINDINGS AND RULINGS ARE ATTACHED, NOT ON THE RIGHT SIDE OF PAGE WHETHER EACH REQUEST WAS GRANTED, DENIED, OR NOT RULED UPON [RULE 6(5). REGARDING THE TEXT OF RELEVANT CONSTITUTIONAL, STATUTORY, AND OTHER DOCUMENTS, SEE RULE 7(6).

CERTIFICATIONS

1. I hereby certify that every issue, except for the factual issue regarding the finding that undersigned attorney had not discussed the ramifications of challenging the statute not included in the "NOTICE OF CHARGES," was specifically raised or has been presented to the court below and has been properly preserved for appellate review by a contemporaneous objection or, where appropriate, by a properly filed pleading. The legal issue concerning discussing the ramifications of the proposed course of conduct was extensively discussed at the hearing, and case law concerning it was submitted to the Committee.

2. I hereby certify that copies of this notice of appeal have been served on all parties to the case and have been filed with the clerk of the court from which the appeal is taken in accordance with Rule 26(2).

November 17, 2002


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Last updated 2002 November 16.