Testimony of Judge Gerald Taube


IN RE: WERME, PAULA J. advs.           *   00-N-O56/00-O36

Hearing held on November 14, 2001 at the Administrative Office of the Courts, Noble Drive, Concord, New Hampshire 03301. The testimony of Judge Gerald Taube commencing at 4:05 p.m. and ending at 4:25 p.m.

Committee Members: Bruce A. Cardello, Esquire, Panel Chair
David N. Cole, II, Esquire, Reporter
Landya Boyer McCafferty, Esquire
Marthe F. Dyner

For the Respondent: Pro Se
Paula Werme


Werme, Paula J. advs. Professional Conduct Committee
November 14, 2001

[Testimony of Judge Gerald Taube]

having been duly sworn by Mr. Cardello
testified as follows:

(Interrogatories by Mr. Cardello)

Q State your name for the record.

A My name is Gerald Taube, I'm the presiding judge in the Durham District Court, and I also sit as a judge in the Family Division. In other courts I've sat as a Master in the Probate Court system. And I should add that I have given training to GAL's as part of the court system program for the Guardians Ad Litem. I've appointed dozens, hundreds maybe, of attorneys guardians ad litem over about a 12 year judicial experience. I've been admitted to practice in this state since 1964; believe me, I know the difference. I don't think that anybody could find a statement from me, except perhaps while in my sleep, that I had said I didn't know the difference between a guardian ad litem and an attorney. And I challenge Attorney Werme to show me where she read that. And I'm going to say this, I have documents from the Judicial Conduct Committee that I want in evidence here. She wrote to the committee requesting documents. And in it -- and this is the first time, I swear, that I ever heard anything about my being unaware of the difference. "Judge Taube's response to this committee, that he was unaware of the difference between a guardian ad litem and an attorney. " "Judge Taube's response..." Judge Taube made two responses in writing, nowhere did I make that statement. "It appears to be relevant to my defense that I did not act recklessly." Okay. "Although I am not positive at this point, I believe his response that he was unaware of the difference between a guardian ad litem and an attorney implies that he was unaware at the time he reported me for reckless conduct. "I mean, this kind of loose language, I'm not sure, it may have been -- what have you. Look, folks, she filed a Motion to Recuse me, the second motion, she also filed two letters, two separate charges, statements against me in the Judicial Conduct Committee. Never once did I hear anything about this difference between a guardian ad litem and attorney, never once did I hear anything that somehow I had appointed an attorney -- or I had misrepresented anything about appointment of attorneys. In fact, what she said to the Judicial Conduct Committee was, "This guy lied, that there is a list, and I went through all this process to find out about this list." And I responded to the committee basically as follows: There is a list; you can check with Heidi Boyack (ph), the Court Administrator. And we used the list prepared by the Judicial Council. Now, the Judicial Council produces a list of attorneys, contract attorneys, in juvenile and CHINS cases, Children in Need of Supervision cases, that's part of its contract with the State. Now, they don't appoint attorneys, or approve attorneys, for termination of parental rights, or abuse and neglect. Now, before I came to the Family Division, someone, I'm not sure who, decided, "We'll use the Judicial Council list for appointments in juvenile cases." Is that a good idea? Is it a bad idea? It's the practice. And as Judge Lyons says, when somebody needs an attorney, go see the Clerk, the Clerk appoints one, it becomes before me, and unless I find there's something inappropriate, I sign off on "it, and that's the way the system works. Manchester has its own approach, and so forth and so on. And I want to say to the committee that every time I hear from Attorney Werme, I seem to get a different view of what's bothering her about my conduct. Now, I want to say I, too, at some point -- somebody brought my attention to the -- to her website, and they downloaded it for me, and that's where she talked about the magical mystery list. And she has, as part of this package, all sorts of pleadings that she filed, alleging that I was a liar, intentionally represented -- misrepresented, nowhere did she ever put my response on there for a fair and balanced approach. I mean, you know, you can think I'm a liar, but let the liar speak for himself. Now, in this reference to the magical mystery list, "Courts refuse to appoint me," and so forth. She says, "But shouldn't the court system want to appoint attorneys who will work hard for their client?" Yes, and we do every day. To draw the inference that I don't want attorneys that don't want to work for their clients, I think that's also unfair to the many attorneys who do get appointed and work hard, and challenge me every day, and thankfully they do. Now, she goes on to make a personal statement about her recollection concerning potential conflicts. And, in part, she says, "The court -- I did not have the code of professional responsibility with me in court, and rules were either read to me..." -- they were -- "or explained to me, "because I had someone pull the rules out during the hearing, that I must explain the advantages of dual representation. "This I did not believe I had undertaken. This I did not believe..." and she underscores "not, " "...that I had undertaken," and represented this to the Court. That's not what I heard today. 'Cause that's what I heard, and I tried to put an impression -- because I tried to give her the civility and dignity that I like to give attorneys who appear before me. I don't call them liars, even if I suspect they might be lying, and occasionally that does happen, or I suspect it does. So, I tried to cushion it as best I could, I didn't want to challenge her in the face of her clients, and I also didn't want to leap to a conclusion. I didn't want to do what she did to me, which after all was -- came to the worst possible interpretation of my conduct. Without coming back to me and saying, "Judge, you told me to go downstairs, I went on this odyssey, and I came up empty. Now, please, is that what you intended?" at which time I could have corrected her, or explained. Or if I didn't, you could then say, "This Judge doesn't care." But I was never given that opportunity before I was called a bald-faced liar. 'It's never happened before. And I'm perhaps not as smart as I should be, perhaps I'm careless with use of language, but I must say to you -- so, I have here this reference from her own website where she says, "I told him I did not believe I had gone over it. "This is her website, her statement, which is not consistent from what she's telling this committee today. I got -- so didn't Joe Tropiano get the impression, and Ev. Hatch, two other attorneys in the courtroom at the same time. I also believe that she did not go over that rule. I was very concerned. And I don't want to start characterizing. I believe one or both of the respondents are here. But I had -- it was very clear to me from the file that they were -- according to the study that had been done -- mentally retarded, and unable to understand abstract conceptualization. I was very worried, how are they going to understand this process. It's hard enough to explain these things to somebody more sophisticated. I was very concerned, based on what she told me now, when I got her motion, the Clerk came to me and said, "Judge, Attorney Werme wants to be appointed, she's not on our list. "I says, "Fine, that ends it." The policy of the Court is, if you're not on the list, you don't get appointed, unless we can't find someone on the list, and then they try to find someone we know who is capable of representing people for this kind of litigation. That's the bottom line. There's nothing more or less mysterious about that list than that. I'm not gonna defend the process, but that is the God's honest truth. Now, in the ordinary course, when people are when the division returns a petition, we have a pre-preliminary hearing, bring the parties in, explain the petition, talk -- I won't get into that. And one of the questions is, "Would you like an attorney?" We have these lengthy forms to read and understand what their rights are, in which case we appoint them an attorney, or say, "Fill out the affidavit, if you qualify you'll be appointed." In this case I knew I had an issue. She wanted to-be appointed and seemed quite determined. And I figured she'd be there. I wanted to have -- I was concerned when I read this that she wanted to represent both of these people, limited as they are -- and I have to say something else, I sat in Manchester for five-and-a-half years and did all the abuse and neglect cases, average caseload of, like, 275 cases, the Clerk tells me, on average, I mean, that's ongoing. I've got to think -- I tried to think did I ever have an attorney who said, "Yes, Judge, I want to represent both parents." It's dangerous. It's dangerous for the attorney, as we all know, it's also dangerous for the clients. Here you had -- and I can't get into all the details -- they had made allegations about each other, serious allegations. Later in the trial, if one of them said, "Look, I don't want to lose my kids, I'll testify against her or him," what does the attorney do at that point? At that point you're conflicted out, you've got confidential information. I was also under the impression that she had already represented them. Attorney Tropiano raised the issue that she had already gotten confidential information from them prior to going over the rule. Now, I was also concerned about these people, and concerned about how these people would possibly deal with all these lawyers, and talking about things that even lawyers have a difficult time understanding at times. I was very concerned, and I think I said it to them, it's in the transcript, that I was very concerned about their not having confidence in the process, losing confidence in this process. They had already been through, obviously, a difficult time, and I was trying to give her a chance to go back, sit down with your clients, and perhaps come up with what I thought made more sense. Get another lawyer, get your united strategy and move on. That was my best judgment, given my experience in these kinds of cases. Now, there weren't a cast of thousands in the courtroom, and we had a conversation, and when I said to her, "I won't be dictated to," she kept pressing the issue. And I have a long list of people in the corridors, and coming along, and I says, "Attorney Werme, it's over, I will not have you tell me, in effect, what I'm gonna do. I've made my decision, please honor it. " And that was the sense of "not be dictated to. " Again, she took that to mean that I just wouldn't even deal with her. She said she had -- she was afraid of me, or thought I was ugly or vicious in Manchester. Yeah, she had come in with a client, she told the client not to cooperate with the division, she insisted that her client, who had been absent from the life of the child for years, should have immediate custody, and would not allow us to interview him or learn anything about him. I said to her, "Attorney Werme, we have a child protection function, we don't know your client, we want to know more about him, why he has not been in the life of the child, why he's coming in, in the middle of this whole process, and not before." That's important. You can't just show up and say, "I'm the father, I'm gonna take the child," without more. In the middle of a child protection proceeding no less. And she says, "My client will not cooperate. " And I says, "Counsel, that's my advice..." -- I says, "Counsel, if that's your advice, that's fine, but you're gonna have to live with the consequences, and I cannot respond." "Well, I'm gonna appeal," and said something, and I says, "Fine, go and appeal," but I'm using my best judgment under those circumstances. And from that becomes a basis for believing I'm a monster, or whatever else she's assumed about me. Now, I did recuse myself from any further involvement in her cases. Truth is the basis for me of all virtue and values. If she thinks I'm a liar, and -- where do you go with that? I, for that matter, don't know that she's made statements here which I find credible, quite frankly, based on my experience about what happened in this process, but that's for you to decide. I've -- I hear about all this talk about attorneys and when they came in, it's the first time I've heard that. Isn't it strange that after all this time and all this process that now the real issue is not the list, but the attorneys, and when they were in and out and -- then again, I think as the question suggested, come back to me, say, "Judge, you're wrong, you're..." whatever. Because what I worry about, is that not only the judge is seen as arbitrary, let alone dishonest, is that the client be led to believe that you cannot trust this process, you've got a dishonest judge. Where do you go with that? Where does it -- how is this client ever possibly going to trust this system of process? And I just felt then, as I do now in listening to this, is that there's a recklessness, a failure to sit down -- go and look, when were these attorneys appointed, it's there. File a motion if you want. Nobody has ever asked me, to say, "When, Judge, did you appoint these people, what did you have in mind? 'I There's ways of addressing this with civility and dignity that leaves the process intact, so we can come back another day for these people. The -- she said she went down and talked to a clerk. She said, "Jill" today, Jill works there. But in her statement to the court to the Judicial Conduct Committee, rather, she said "Lisa" or somebody else. I went down, "Is there a Lisa here?" "No." So, at the time she wasn't -- didn't remember the name correctly, perhaps got it right over time. Now, if I may, I just want to finish this up. As far as the conflict issue is concerned, I tried so hard in that proceeding to get this right. I even asked Attorney Tropiano to read the rule during the hearing, I asked him to file some to do some research to aid me and the parties on this issue of joint representation here, he filed a document, nobody responded to it. There was never any sense of saying, "Attorney Tropiano, you got this all wrong, you don't understand, let me cite some other rules, "no, it speaks for itself, and I thought it was a quite reasonable and, basically, accurate representation of what I understand the rule to be. But as I say to you, the issue is not "Did you review part of the rule? Did you review some of the rule? Did you review -- did you kind of brush over it?" It's the whole rule and nothing but the rule. And when I said, "Did you discuss the advantages of joint representation?" the point of that question -- I perhaps should have said advantages and disadvantages, so in that sense I -- but advantages of joint representation, separate representation, means the pitfalls you can avoid, the things that you can do. And I -- that was the spirit of my inquiry. And I even gave her a chance to file with me an affidavit stating that she has, in fact, gone over this, otherwise there'd be no point in it. If she said, "I went over it," why would I ask for an affidavit, and why did she file -- and then when she filed the statement -- and I must state to you, it was done with a sort of flippancy, "Ah, this is old stuff, It doesn't apply, you know, I sat down and went over it." And most of the representation she's made since then speak to after my order, they don't speak to what she did before December 15th. She eventually, apparently, sat down with her clients, but that didn't happen until much later, from what I'm gathering. Now, she filed another letter for the committee after the first one, and she went on and cited that there were various people who I had appointed in Manchester, and saying, "Attorney Tropiano is not on this list, "and she didn't get -- and that the Judicial Council is not to be considered as a list. I'm getting a feeling I'm discussing all of this with the Judicial Conduct Committee as an intermediary. I wrote a response; I'd like the committee to see my response. And I explained all of this about contracts and how we use the list to screen the -- when I appointed Attorney Kiley; how I appointed Joseph Tropiano. And then at the end of her letter she says, "Suggesting that when judges have full discretion to appoint counsel of their choice -- all letter caps -- the more serious problems with the statute are avoiding judicial review. "And I said, "If by this assertion she means that I appoint attorneys who I know will not effectively represent their clients, I strenuously object, because it's not true. In this way she unfairly attacks not only my integrity, but that of the New Hampshire Judicial Council which recommends these attorneys, and the attorneys are regularly challenging DCYF policies in my court." I mean, we've got agenda operating here. I know she was angry at me for not appointing her, and perhaps I should have -- I mean, one could argue that this was a case that warranted that, and perhaps I was wrong. I mean, I'm not her~ to- defend my decisions, all I'm talking now is about reasonableness, the distinction between what's reckless and what's reasonable. An attorney finding something -- I didn't say anything about lists -- get -- except in my order, and I said, she wasn't on the list, and we appointed attorneys, that's why I had them there at that hearing, so we'd have somebody available to step in if she said, "I won't appear for these people unless you pay me." That was the whole point. So, I must say to you that I sit here and just -- and just trying to understand how she could have interpreted my behavior the way she did, why she adopted this policy of coming at me with this "intentional misrepresentations." I would think that as a lawyer you'd get your facts straight first, or at, least make sure you got them straight, and then say what you want to say. But I don't think that this kind of process is good for the judicial system, for attorneys, to make it possible for people to have confidence in the process. If a judge lies, he should be punished, that's not acceptable, but a difference -- even a dog knows the difference between being kicked, and stepped on, there is a difference. "Judge Taube is stupid, he doesn't understand. He made a mistake. "I'm sure I make them every day, uh, but I think this went way over the top, and without a reasonable basis for saying it. So, thank you for giving me this opportunity to speak. I'd ask the record to have -- I have copies of the letter she sent to the committee on May 3rd concerning this -- as I said, the first time she mentioned...

Q Well, I would ask -- do you have the entire contents of the correspondence that was filed with the Judicial Conduct Committee?

A The only correspondence we have is her first letter, my response -- I believe you have that -- and then she filed a second letter...

Q Do you have all of the -- each of the letters that both you and she filed with the Judicial Conduct Committee?

A I think I do have them, yes. And as I say, I also want...

Q Because we have sought those, and I know you both authorized the release of that to us, and it's not clear that we've got them.

MS. WERME: I'm sorry, my recollection was that they...

MR. CARDELLO: So, I'm just gonna ask that they be filed today. Do you have those as an exhibit? And if you also, Judge Taube, wish to file with us as an additional exhibit the web page information that you referred to during your testimony, I'll permit that.

A What does the committee have on the correspondence? I have a...

MS. McCAFFERTY: I don't think we have anything from the...

A You don't have anything yet at all?

MS. WERME: I didn't submit anything to you until the Judicial Conduct Committee okayed it, and then they indicated that they sent the correspondence. I really do recall that they -- not Notice of Charges, I'm thinking about that right now -- the complaint. I thought I recalled that they had filed and requested a reply from him under the similar order and the similar rules, and that he made a formal reply besides those letters. I can't imagine -- I could -- I've seen the two letters of his replies, but thought there was a third document.

A You thought there was a third document? I represent to the committee, as far as I know, her letter, my response, her letter, my response and the committee's decision to dismiss the complaint. And that was the...

MR. CARDELLO: And you have those with you today?

A I have most of them. I wasn't prepared to give -- I assumed the committee had -- and I just had the first letters, but I'll be happy to put a package together and submit it to the committee tomorrow.

MR. CARDELLO: Thanks, Judge, that would be the best way to approach it.

A I would like to leave this web page reference which was downloaded on March 16, 2000.

MR. CARDELLO: Do any of the panel members have any questions they wish to ask Judge Taube? Marthe?



MR. COLE: Just one, Judge. You said you went down and talked with the court staff about who Attorney Werme might have talked with about the list, and you came up with a name that she might have talked a bit. Was there any explanation for why somebody didn't give her the list when she asked for it, and why she ended up on this odyssey?

A This is the problem, by the tact she took. She -- in the committee she said, "I spoke to someone named Lisa who told me to go to the AOC. "And I don't question that she did, I give her the benefit of the doubt that she spoke to somebody. I went downstairs and I said, "Is there anybody down here named Lisa?" 'Cause I thought, you know, when I saw this, what -- nobody -- and I'm not aware that anyone has ever there worked [sic] by the name of Lisa, or on the Probate Court side. So...

MR. COLE: But, I mean, did you talk with whoever talked with her?

A I don't know who talked to her to this date. She's now saying "Jill, "and I've -- you know, this is the first time I've heard that's the person. You see, so much of this could have been clarified. File a motion, "Judge, I spoke to Jill and this is what I did, now, please what's going on here?" And I could have either satisfied her, or then she would have had something to go with. But by not doing that, and then coming back with this "intentional misrepresentations," you now have made the issue one of duress. I mean, I can't think of anything worse you can say about a judge or lawyer, where do you go from there, it's the foundation of everything. And so -- but, in fact, in my response to the Court, to the Judicial Conduct Committee on June 5, 2000, "I followed established Family Division policy, you may confirm this statement with Heidi Boyack (ph), Administrator of the Family Division. I said, "Go and talk to them, tell them -- ask them what the policy is. Find it out." So, yeah, so that's why I'm finding out a lot of things today that I was hearing for the first time and that weren't in play earlier in this case.

R. CARDELLO: Do you have any questions you wish to ask this witness? .

MS. WERME: Uh, no.

R. CARDELLO: Okay, thank you very much.

A And I'll send that packet to you. Thank you.

MR. CARDELLO: Thank you. And we'll provide -- send that to the committee offices, and then they will...

A Care of?

MR. CARDELLO: Professional Conduct Committee offices in care of the Administrator, and then copies will be circulated to...

A And who's...

MR. CARDELLO: James DeHart.

A James DeHart. Okay.

MR. CARDELLO: And staff will circulate copies to Attorney Werme and each of the panel members for their consideration.

(End of testimony)

Professional Conduct Committee

In Re: Werme, Paula J. advs. PCC
November 14, 2001

I, Laurie L. Landry, do hereby certify that I transcribed from a tape recording the foregoing twenty-two (22) pages and that the same is a true, full and correct transcript of all the testimony of the witnesses to the best of my knowledge and belief.. I further certify that I am neither attorney nor counsel for, nor related to or employed by any of the parties to the action in which this hearing was held, and further that I am not a relative or employee of any attorney or counsel employed in this case, nor am I financially interested in this action.

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of March, 2002.

Laurie L. Landry
Notary Public

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Last updated 2002 March 29.