Waiting on the Professional Conduct Process

It's now August 25, 2002, and I've just been through a hearing on the oldest case I have - it was filed more than three years ago!

Waiting on case 99-072 (report from Judge Smukler)

The Committee has neither filed formal charges nor dismissed the original Professional Conduct referral of Judge Smukler from 1999. That complaint was referred to Committee Member Tom Hanna of Keene for "research." Their Rules permit referring a complaint to a single member for "investigation," but they do not mention research. I've already written Attorney Hanna two letters about his lack of diligence in the matter, to no avail. Perhaps he's waiting for Walker v. Birmingham, 388 U.S. 307 (1967) to be reversed by the U.S. Supreme Court. I could wait a very long time, if that is the case. Tom Hanna replied to my first letter on August 20, 2001, and has not bothered to reply to my second letter. I have reproduced the correspondence in its entirety below and on the report page.

I filed a grievance with the Judicial Conduct Commission on May 22, 2002 to try to enlist their assistance in hurrying Tom Hanna along. They concluded that they don't have jurisdiction over members of the PCC, even though the committee is part of the Supreme Court.

The PCC held a hearing on this case on August 21, 2002. I had a presentation prepared to discuss the history of the Right to Free Speech, but we quickly went into a rathole of whether it is legal to violate an unconstitutional statute. Apparently that is not the common knowledge I thought it was even though it is taught in both Law School's Constitutional Law courses and in the NH Bar Review. Had I known, I would have referenced cases that created the case law rather than the disent of an important related case that is more quotable. Yet another WWW page I need to write! In the meantime, I've added mail I sent to the PCC to reference the better case law below and on the report page.

Waiting on case 00-036 (report from Judge Taube)

The concept of due process is violated when the decision-making body refuses to make a decision. In this case, the Professional Conduct Committee has not made decisions on two complaints on which they held a hearing. For the record, following the November hearings, I filed a "supplemental answer" which answered some of the committee's concerns. In particular, they were troubled (and said so) that I had jumped to the conclusion with respect to Judge Taube that he had not appointed attorneys for my clients, and that there was no "list" of attorneys from which the Family Division appointed attorneys.

I also wrote to Heidi Boyack of the Administrative Office of the Courts. Despite the fact that Donald Goodnow, the head of the Administrative Office of the Courts had stated in a letter to me that there were no rules to guide judges in the exercise of their discretion on appointment of attorneys, Judge Taube repeatedly stated that Heidi Boyack would verify his statement that the criminal contract attorney list was used. It has now been four months since that letter was sent. I sent another letter this week, and I am told by Elizabeth Hodges, counsel for the Administrative Office of the Courts, confirmed today (March 12, 2002) that finally an answer is on the way.

March 19, 2002 Update: The PCC asked for a copy of the transcript of Judge Taube's testimony from the the hearing. Note he says '... 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, ...'.

March 24, 2002 Update: I finally heard from Elizabeth Hodges on the guidelines for appointing attorneys in the Family Court system. They have no formal rules, however, under RSA 169-C (the Child Protection Act), on an informal guide used by clerks, it clearly states that "any attorney" except a public defender may be appointed. This clearly would put me in the classification of attorneys who MAY be appointed. However, the case involved a termination of parental rights. There were no informal guidelines for these cases. I wrote to the PCC, cc to Judge Taube sending them the entire package I received, and asking him to provide evidence that the "list" used was the "criminal contract attorney" list.

April 3, 2002 update: I received a letter from Heidi Boyack to the PCC explaining that the list is really the "contract attorney" list. Nina Gardner had told me that "under the terms of this agreement, contractors cannot handle first and second degree murder cases and abuse and neglect cases ... Overall, the contract serves as the second tier of criminal representation provided in the statute."

I assume that appointments for DCYF cases from this list are outside of the contract and that the Judicial Council may not even know the list is being used that way. However, Gardner also said that "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."

August 27, 2002 update: I recently received a Reprimand but filed a Request for Reconsideration that the PCC accepted.

Done waiting on case 00_056 (report from Judge Lyons)

It begins to appear that if the Professional Conduct Committee cannot make a finding against me, they'll be happy to keep my reputation at stake indefinitely so as to call into question my legal judgment. I appeared at a routine preliminary divorce hearing last week (March of 2002) in the Keene Superior Court. Afterward, my client told me that her husband informed her that his attorney stated I was in a LOT of trouble with the NH Professional Conduct Committee, and probably didn't care about my reputation. I don't know if his attorney got information on my open professional conduct complaints on my web site or not, but I assure readers that they are not posted here because I wish to sully my own reputation, but because the work that I and the manner in which I've done it has been called into question by judges themselves. Judge Lyons claimed "deliberative privilege" when asked under oath in my hearing exactly what laws he believed I had broken. "Deliberative privilege" was apparently done away with in the impeachment trial of Justice Brock. Despite repeated questions from the committee members themselves during the Professional Conduct Hearing, Judge Lyons refused to name any law I had broken, despite the fact that one of his complaints alleged that I "knew or should have known" that my conduct violated "multiple provisions" of state law. His referral on that matter I consider to be nothing less than libel. The other complaint involved statements I made about the opposing attorney's conduct toward my client. In a cover letter to him, I apologized for being so harsh. I never believed that softening the blow would result in a complaint against me! My client testified that he had certainly engaged in the conduct which my motion stated. Following the complaint, I had a chance to review the file, and discovered that in a case involving medical facts, he had permitted a day of trial to go forward and a physician to be deposed without obtaining the child's medical records!


And so the wait continues. . . .



Correspondence related to my PCC cases in general

June 14, 2000

Robert C. Varney, Esq.
NH Professional Conduct Committee
c/o James DeHart
4 Park Street
Suite 304
Concord, NH 03301

Re: PCC Complaints # 00-N-041, 99-072

Dear Mr. Varney,

With respect to these two professional conduct complaints pending against me, the first is related to the newspaper article appearing in the Concord Monitor on June 13, 1999 regarding one of my clients, the second has to do with the surreptitious taping of Nancy Rollins. As you may know, the Attorney General's office, using the same United States v. Katz analysis, has determined that no laws were broken.

I would request at this time, since the statute of limitations on the misdemeanor of violating confidentiality laws has expired, and since the attorney general has weighed in on the matter of the legality of my conduct, that both matters be closed at this time.

As you know, Due Process includes the concept of timely consideration of matters involving a person's liberty interest. It includes the right to have the matters decided as well. A person's interest in their law license, and their interest in their reputation are both interests protected by the Due Process clause. I would therefore also request some information from the committee at this time as to when you anticipate scheduling other complaints against me, or making decisions on them. I understand that both matter are significantly more factually complicated than the matters I am requesting to be closed, however, I would not hope that they are pending for longer than a year. Martha Watkins anticipates that I might represent her in Superior Court if the matter goes there for a trial de novo. Thank you.

Sincerely,

Paula J. Werme

Cc: File


September 25, 2000

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

Re: Professional Conduct Complaints

Dear Attorney DeHart,

I spoke with you the other week regarding the status of my professional conduct complaints. Three, I believe have now been referred to a study committee. While I understand New Hampshire's reliance on volunteer work, all of these complaints have been outstanding for some time now.

My practice, as you may know, is almost exclusively limited to constitutional issues with RSA 169-C.. I just argued In Re: Samantha L. in the New Hampshire Supreme Court on September 13. The issues it represents are important, and fundamental. Should my client lose her appeal in this state, we intend to appeal the case to the U.S. Supreme Court.

I am enclosing a copy of the Supreme Court Application for Admission to Practice. I will call your attention to question # 12(b), in which it asks if there are any pending professional conduct proceedings against me. I'm sure you can understand why any attorney would highly prefer not to answer that question in the affirmative.

I would ask for your fullest attention to disposing of open complaints in a timely manner. While my trial schedule is very busy for the next couple of months, I have not been taking any new cases for a while, and anticipate time opening up in January for hearings. Perhaps the committee could schedule hearings, or dispose of complaints before the end of January. Thank you.

Sincerely,

Paula J. Werme



Correspondence related to case 99-072

August 8, 2001

Thomas Hanna, Esq. 41 School Street Keene, NH 03431

Re: PCC Complaint

Dear Attorney Hannah,

Jim DeHart told me that my PCC Complaint on the Concord Monitor news story has been assigned to you for legal research.

I consider it extremely unprofessional for you to have failed to do the small amount of legal research it would have taken to dismiss the PCC complaint on me for the violation of RSA 169-C:25. Walker v. Birmingham, 388 U.S. 307 (1967) has not been overturned to my knowledge, and it takes only a first year legal student to shepardize the case.

This complaint is over two years old, and I wrote a letter to the PCC asking them to clear up my open PCC complaints in September of last year. My application for the US Supreme Court bar is now being held up because I have to explain my OPEN PCC complaints to them. This particular one is ridiculous, and your two year delay in resolving it is inexcusable.

I do not appreciate being told that you are "in a meeting" with clients when you haven't attended to your other responsibilities, and then not returning my phone call. Please do your job.

Sincerely,

Paula J. Werme

cc: File


Thomas R. Hanna, Attorney
41 School Street
Keene, New Hampshire 03431

August 20,2001

Paula Werme, Esquire
83 N. Main Street
Boscawen, New Hampshire 03303

Dear Ms. Werme:

This will acknowledge receipt of your August 8 letter. I feel very bad that I have not completed my investigation of the PCC complaint against you and made my report to the full committee. I will endeavor to do so soon by elevating your matter above others of equal urgency. Also, I assure you that I will be objective and do the best that I can do notwithstanding your rather extreme comments. I particularly apologize for not returning your call on August 6. This year, I sandwiched 3 days of work (August 6 through August 9) between two vacations, the latter of which ended this past weekend. Today is my first day back.

Sincerely,

Thomas R. Hanna

TRH/gmv
Cc: James L. DeHart, Administrator
New Hampshire Professional Conduct Committee


February 8, 2002

Thomas R. Hanna, Esq.
41 School Street
Keene, NH 03431

Dear Attorney Hanna,

I call your attention to your letter of August 20, 2001, in which you indicated that you would attempt to "elevate[] my matter above others of equal urgency." Your letter involves the professional conduct matter filed by Judge Smukler in 1999, a matter of which the Supreme Court is well aware, since it has already been the subject of an order concerning the complaint. Docket # SMC-99-003. It would appear that your efforts at investigation have been somewhat less than substantial in this regard. I spoke with Steve Varnum some months back, and he indicated to me that he has never heard from any member of the Professional Conduct Committee concerning the matter. Neither has my client. Nor have you spoken to me concerning the complaint.

I will remind you that as a member of the Supreme Court Professional Conduct Committee, your duties are judicial in nature. Supreme Court Rule 38, Canon 3B (2) states that "A judge should require his staff and court officials subject to his direction to observe the standards of fidelity and diligence that would apply to him."

I don't consider your actions in this matter to comport with the standards of diligence required of an court official subject to the direction of the NH Supreme Court judges. I once again ask you to do your job so this matter may be concluded.

Sincerely,

Paula J. Werme

cc: NH Supreme Court Justices


August 21, 2002

James L. DeHart, Administrator
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301
Re: 99-072 Paula Werme v. Professional Conduct Committee

Dear Mr. DeHart,

At today's hearing on this professional conduct complaint, there was extensive discussion on the right to disobey an unconstitutional ordinance v. the duty to obey an unconstitutional court order. The committee mentioned that the cases cited in the dissent of Walker v. Birmingham would be made a part of the record in support of my statement that my clients have no duty to obey an unconstitutional statute.

There was an additional case discussed, pulled from my Constitutional Law Black Letter book, Shuttlesworth v. City of Birmingham, 394 U.S. 147.

Noting that Shuttlesworth involves the same people involved in the Walker case, the court came to the opposite conclusion of the Walker holding, for the reason I originally pointed out in my answer to the committee. I would at this time submit this case to the committee in support of my position, and point out to them in particular footnote # 7 on p. 9 of the computerized print out. It states, as I explained to the committee today, that the issue of violating an unconstitutional court order is a different issue than the right to disobey an unconstitutional law. It also squarely holds that one has a right to disobey an unconstitutional law infringing one's First Amendment rights.

Hopefully, this will bring this matter to a prompt resolution. Thank you.

Sincerely,

Paula J. Werme



Correspondence related to case 00-036

March 23, 2002

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

Re: PCC Complaint # 00-036
Paula J. Werme v. Professional Conduct Committee

Dear Mr. DeHart,

Enclosed you will find a letter from Elizabeth Hodges, Deputy General Counsel for the Administrative Office of the Courts. She responded to my Right to Know letters sent to Heidi Boyack in November of 2001 following my hearing before the Professional Conduct Committee. The committee is now deliberating on the matter.

In the hearing, Judge Taube testified that the Family Division uses the contract criminal attorney list as provided the courts from the NH Judicial Counsel. (Actually, I know where the list comes from, I'm not sure Judge Taube stated it.) He did state that this could be verified through Heidi Boyack, of the Administrative Office of the Courts. Although I had already attempted to verify Judge Taube's statement through Donald Goodnow, I wrote again to Heidi Boyack, who did not answer me directly but referred the letter to Elizabeth Hodges. I enclose the entire package as received by me from Attorney Hodges, but call your attention specifically to Document # 11 as noted on Attorney Hodges cover letter. Under "Miscellaneous" on the second page it states:

"1. How to choose an attorney: . . . .

Abuse and Neglect - any attorney, but cannot use public defender." (for parent)"

All documents are silent as to the existence of a list for appointment of attorney in Termination of Parental Right hearings. I believe that this documents shows that the original letter from Donald Goodnow to me concerning appointment of attorneys in the Family Division for Abuse and Neglect cases was the correct policy of the Family Division. As I pointed out to the committee, I thought I was entitled to rely on his statement. As Judge Taube testified specifically that the policy excluded the appointment of any attorney, but that there was a "list" from which the Family Division obtained appointed counsel, I am also forwarding a copy of this package directly to Judge Taube. I would respectfully request that Judge Taube respond to this committee and me directly within ten days with evidence that during the relevant time period (of my actions that formed the basis of his complaint) that the policy of the Family Division was different than clearly stated in these documents. After almost two years, I am anxious to clear up the matter.

Sincerely,

Paula J. Werme

cc: File      The Honorable Gerald Taube


A letter from Heidi Boyack would be included here, however it's important to my WWW page about court appointed lawyers, so I put it there.



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

Last updated 2002 August 25.