August 4, 2002

James L. DeHart, Administrator
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301

Re: 00-036 In the Matter of Paula J. Werme, Esq.
Request for Reconsideration pursuant to Rule 37 3.21

Dear Mr. DeHart,

Please consider this letter as a Request for Redetermination pursuant to Rule 37 3.21. While I do thank the committee for dismissing the complaint in regard to Rule 1.7, I still believe the committee erred in its determination on the violation of Rules 8.2(a) and 8.4(a) of the Rules. The rule specifically states that I need to cite with particular clarity, points of law or fact that the Committee has overlooked or misapprehended and shall contain such argument in support of the request as the party making such request desires to present. I cannot guess which facts the committee has overlooked in making its determination, however, I can point out to the committee which facts are not in the determination that appear not to have been used or areas of law where I believed the committee erred.

  1. Judge Taube did not appoint any other attorney to represent my clients at any time. He specifically stated in his Order of January 26, 2000 and under oath to the committee to the contrary. I could be sure of that at the time of my motion for reconsideration because I had already filed an appearance, and he was not at liberty to appoint other counsel for my clients unless I withdrew. Had he stated at the hearing that he had already appointed counsel for my clients, I assure you I would have jumped up immediately and said, "You can't do that! I filed an appearance." I am also submitting for additional consideration a copy of the court's Document index, which indicate that at no time between the commencement of the case on 8/25/99 and 2/22/2000 in which he recused himself is there an order for appointment of counsel.

  2. As for Judge Taube statement he had not appointed me because he had already appointed counsel from the approved list of counsel, I've already pointed out to the committee that he did not appoint counsel at all. This committee is apparently expecting that, knowing the first clause following the word "because" in his order was not true, that I would be expected to file a motion for reconsideration to his court to verify that there was no "list" when I had already received information from Donald Goodnow that there was no list "to guide the judges in the exercise of their discretion in appointing counsel.

  3. I would point out to the committee that the burden of proof here for a finding of misconduct is a preponderance of the evidence, not beyond a reasonable doubt. You appear to be using a beyond a reasonable doubt standard as it applied to my own knowledge of the "list" to show that since I did not have that information beyond a reasonable doubt that I was reckless. I believe this is the incorrect standard. As I pointed out to the committee, I was entitled to believe Donald Goodnow, who had, to my knowledge, no prior knowledge of me, and no reason to lie. I believe I have shown that at the time I filed the motion, I had specific, credible evidence that no list existed, at least to the level of preponderance of the evidence. I would characterize my knowledge at the time as clear and convincing based Donald Goodnow's letter to me.

  4. I believe that the wording of the Reprimand itself shows that the committee itself does not believe that the list exists. I don't think the evidence before the committee at this point is that it doesn't exist beyond a reasonable doubt, but this appears to be the standard to which you are holding me. How is it that you may make a finding that it doesn't exist, and I don't have the freedom to come to the same conclusion with a letter from Donald Goodnow that there is no list?

  5. As a matter of form I would point out to the committee that its finding was that Judge Taube stated in the hearing of December 15 that he had not appointed me because he had appointed counsel from the list at the Brentwood Family Court is incorrect. Please re-read the transcript. I brought up the subject of the "list" following Judge Taube's decision. I was expecting it to be an informal list of attorneys interested in court appointments, not a list excluding attorneys from appointment on the basis lacking certain credentials. Judge Taube's first statement that he had not appointed me because I was not on the list of court appointed counsel was in his decision of January 26, 2000, contemporaneous with his appointment of Joe Tropiano as Guardian ad Litem for the mother because his first appointment was Phil Cross, who had represented her in the underlying neglect matter.

  6. I do not understand your finding that I "attempted entry" into the case. I believe the filing of an appearance in a matter means that the attorney has entered the matter. The motion I filed for appointment was to obtain for my clients what was their right as indigent parents facing permanent loss of their parental rights, that of court payment of their legal fees. I was able to find no New Hampshire case law on the subject of "attempted entry," nor was I able to find anything in Weibusch, NH Civil Practice and Procedure on "attempted entry" or "attempted appearance." I did find a case, which I am enclosing for your review on "attempted appearance," where the court held that an appearance without the authorization of the party to the lawsuit was null and void. This was not an issue in this case. Loken v. Magrum, 364 N.W. 2d 79 (N.D. 1985). "An attempted appearance by a third person without authority from the party for whom he purports to appear is ordinarily wholly ineffective for any purpose whatsoever, . . . 6 C.J.S. Appearances." My clients had not given anyone any authority to act on their behalf except me, and the notation in the record that Neil Reardon and Joe Tropiano were called in for appointment is not the same as actually appointing them. I had filed an appearance, had filed an answer, motion to continue, and on 12/15/99 I also filed a Motion for Discovery. No judge reasonable judge at the time of the preliminary hearing would have concluded on December 15, 1999 that he was free to appoint counsel as I was continuing to do the very things expected of an attorney and my clients had not requested any court appointed counsel other than me. I will remind you of the wording paragraph #3 of Judge Taube's January 26, 2000 ORDER. Also, please cite your legal source for the proposition that filing an appearance constitutes an "attempted appearance" until the judge permits one to represent the client. (Judge Taube's ORDER of January 26, 2000, # 3)

    "The court had appointed counsel for each parent but Attorney Werme informed the Court that the parents had retained her to represent them and she wished to be appointed by the Court."

  7. At the time I had informed the court that I wished to be appointed, whether that is interpreted as of the date of my motion or in the hearing when I informed the court that the parents had retained me, the Court had not appointed counsel for each parent.

    "The Court declined the appointment because it had already appointed counsel from its approved list of counsel, which she was not on."

    It was not true that Judge Taube had already appointed counsel whether one considers the statement to refer to Judge Taube's denial of motion on 11/17/99 or the oral denial in court on December 15. It is also not a true statement whether there is a "list" or not. He had not appointed counsel at all.

    "The court did, however, allow her appearance, but raised questions about her ability to represent both clients, given their potentially competing interests involving possibly different defenses and trial strategies."

    Judge Taube had no authority to "deny" my appearance, or to characterize my role as that of anything other than that of counsel for parents. He therefore had no authority to appoint my clients counsel, which, as I have already pointed out, he did not do.

  8. The plain wording of Weibusch, Civil Practice and Procedure, 8.11 states that motions may be reconsidered prior to final judgment. It further states that a hearing may be granted when the motion "raises a new matter, or an issue not previously perceived." There is no obligation to request a motion for reconsideration when the facts stated in the order are not only not true, but the record reflects that they are untrue.

I suppose you do have the right to reprimand me for my conclusion, after checking with Donald Goodnow, and receiving his letter stating that there was no list without verifying it with Judge Taube. However, to state that what I should have done was to file a motion for reconsideration to clarify the existence or non-existence of the list when no part of Judge Taube's reason was true, whether there was a list or not, I believe requires a reversal of your Reprimand.

Sincerely,
 
Paula J. Werme

cc: File