The US and NH Constitutions provide that citizens have the right to a court appointed attorney if they cannot afford their own. This does not necessisarily mean that you have the right to the attorney of your choice, but common sense suggests you should get an attorney who wants to further your interests. However, the courts have refused to appoint me when requested by potential clients and I'm finding that there's no way on to their lists of potential court-appointed lawyers. I'd expect that DCYF would prefer I just disappear, but shouldn't the court system want to appoint attorneys who will work hard for their clients?
This page records my efforts to encourage the courts to appoint me.
Table of contents:
This journey began at a hearing where a couple had asked me to represent
them in a case. Like many people accused of abuse/neglect by DCYF, they
couldn't afford a lawyer and I asked to be appointed by the court.
Donald D. Goodnow, Director Re: Right to Know
Dear Mr. Goodnow,
Following a request to have myself appointed in a parental termination
case, Judge Taube indicated that "he would not be dictated to" and was
therefore not appointing me. Apparently, Judge Taube believes that a
request to be appointed amounts to dictating to the Court his decision. I
asked him for a copy of the rules regarding appointment of attorneys on
both Child Abuse and Neglect cases in Family Court and in Parental
Termination cases. He indicated that I could pick up a copy of those rules
from the clerk of Court.
Later, in the clerks office, I spoke with Lisa (last name unknown), who
indicated that she never heard of rules regarding appointment of attorneys
in abuse and neglect cases, and she furthermore did not have a list the
judge uses to appoint attorneys in these proceedings. Please forward to me
at your earliest convenience a copy of any Court policies on appointment of
attorneys in abuse and neglect hearings in Family Court, as well as any
policies or lists kept by the Court of attorneys that they normally appoint
in those cases. I would also like to know the procedure to be placed on
these lists, for both district courts and Family Courts. Thank you.
Cc: File
Simultaneously, I sent a letter to Judge Kelly, who oversees the
district courts.
December 15, 1999
The Honorable Edwin Kelly Re: Right to Know
Dear Judge Kelly,
With respect to the enclosed Right to Know submitted to Donald Goodnow,
Director of the Administrative Office of the Courts, I would like similar
information for the District Courts. Specifically:
I would like a copy of the Court rules for appointing attorneys on abuse
and neglect cases, and how an attorney makes it known to the Court that
they wish to be on the list of appointments.
With respect to the Concord District Court, I would also like a copy of
any list kept by the Court of attorneys the Court considers for
appointment, along with a list of how many cases each attorney on the list
was appointed to for each of the years 1998 and 1999, along with a total of
RSA 169-C
cases handled by the Concord District Court, If it is possible,
please indicate how often each attorney was appointed to represent a
parent, child, or as a Guardian ad Litem. In the case of the Guardians ad
Litem, a list of names will not be necessary, as it is accessible on the
World Wide Web.
If there is no list of attorneys considered for appointment, I would like
to know how each judge determines which attorneys to appoint in abuse and
neglect cases.
Cc: Ned Gordon, Chairperson
December 23, 1999
Re: Appointment of Attorneys on Child Abuse and Neglect Cases
Dear Ms. Werme,
I have your December 15 letter regarding appointment of attorneys in abuse
and neglect cases. My office is not the custodian of rules or regulations
which would guide trial court judges in the exercise of discretion in
appointing attorneys in abuse and neglect cases. Nor am I the custodian of
any court policies concerning appointment of attorneys in these cases.
Finally, I have no lists of attorneys available for appointment in abuse
and neglect cases.
I have sent a copy of your letter, to Judge Kelly who serves as
Administrative Judge of the District Courts so he can consider these
issues.
December 20, 1999
To date I have not received a reply from Judge Kelly. At this point, if
someone were to ask me how to get a court-appointed lawyer to best represent a
case, I would not be able to answer the question. I'd have to suggest they
ask the court and wish them luck.
Time has passed and despite my mail on the above matters, I've received
no additional information. Meanwhile, the case continues, as do references
to this mystical list.
February 2, 2000
NOW COME F. and D. W., of [], NH, by and through their attorney,
Paula J. Werme, Esq., and hereby move this honorable Court to recuse
Judge Gerald Taube from the proceedings. In support of said Motion,
Respondent's state the following:
WHEREFORE, Respondent's respectfully request the following relief:
Respectfully submitted by and through their attorney,
DCYF's attorney was not impressed with my arguments:
February 2, 2000
OBJECTION TO SECOND MOTION FOR RECUSAL
NOW COMES DCYF, by and through counsel Everard E. Hatch, and respectfully
objects to the motion for recusal filed by Atty Werme. In support thereof
the Division states the following:
WHEREFORE, the Division respectfully requests that this Honorable Court:
FN. 1. Attorney Werme was not on the list of court-appointed attorneys at
Brentwood Family Court at the time she demanded to be appointed.
FN 2. Prior to the preliminary hearing, the following attorneys were
selected from the list of court appointed attorneys to appear at the
preliminary hearing: Atty Patricia Frim as GAL for children; Atty Phil
Cross as GAL for Mrs. W, Atty Phil Desfosses as GAL for Mr. W.; Atty Neil
Reardon as counsel for Mr. W. Atty Joseph Tropiano as counsel for Mrs. W.
Attys Frim, Cross, Reardon, and Tropiano were actually present at the
preliminary hearing; Atty Desfosses was elsewhere in bldg.
FN 3. Atty Werme's false accusation can only be seen as an effort to draw
attention away from her own misconduct in this case. Just prior to the
preliminary hearing, Atty Werme filed several substantive pleadings
indicating that she had already undertake joint representation of Mr. and
Mrs. W. However, at the preliminary hearing, Atty Werme Acknowledged that
she had not consulted with Mr. and Mrs. W regarding potential conflicts and
disadvantages of joint representation, as required by Rule 1.7(b) of the NH
Rules of Professional Conduct. See Letter from Atty Joseph Tropiano to the
Court dated December 21, 1999 regarding joint representation of Mr. and
Mrs. W by Atty Werme.
There are some pretty harsh wording about me in that motion. Here are some
detailed comments.
Notes: Re: FN 1. I did not "appear" and "demand to be
appointed" on December 15, 1999. I filed enclosed motion to be
appointed on October 15, 1999, at which time there were Guardians ad
Litem appointed for the clients, and NO attorneys. The court,
apparently because they did not wish to appoint me as attorney for the
parents, chose to have five counsel present at preliminary hearings,
one issue which should have been taken up at the time was the issue of
my motion for appointment.
Re: I submitted ample evidence with my Motion for Recusal that
there was no "List," and following the receipt of this Objection, I
contacted Everard Hatch, and said that he certainly must have access
to the "approved list" if he was so certain that it existed to accuse
me of making "false accusations."
He indicated that he had never actually seen such a list,
but there was a process by which an attorney gets on the "Provider
list" for DCYF, and that it involved submitting an application to
them. I indicated to him that I was already on that list,
having been paid in several court appointments for cases last year.
He then indicated to me that he wasn't sure, but he thought that each
court kept their own list of "approved" attorneys. My point exactly,
that was the list I was attempting to obtain from Brentwood Family
Court. I was told by the clerk that she had no idea what I was
talking about.
Note on FN3. My recollection was that I represented to the
court that to the extent that Professional Rule 1.7(b) requires me to
explain the potential conflicts and disadvantages of joint
representation, that this representation and explanation had been
made. The rule also requires that the attorney explain the
"advantages and risks" involved in joint representation. I did not
have the Code of Professional Responsibility with me in court, and the
rules was either read to me or explained to me that I must explain the
advantages of dual representation to the clients (having
two attorneys). This I did not believe I had undertaken, and
represented this to the court, and indicated that I would rectify it
as soon as possible. Upon re-reading the Rule, I do not believe I was
specifically required to word the discussion in terms of the
advantages of dual representation, but could place in the
context of the disadvantages of joint representation.
I received a pointer to someone at the NH Judicial Counsel which handles
"contract attorneys" which sounded pretty much like what I want to see.
I requested information about getting on the list and how often the
list is forwarded to the Family Court system.
However, the response explained their role involved criminal
cases. It says that they do not cover abuse/neglect cases and that those
are handled by "the so-called assigned counsel list in the District and
Municipal Courts."
March 30, 2000
Paula J. Werme, Esq. Dear Attorney Werme,
I am writing in response to your request for information received
yesterday.
You request information with respect to contract attorney appointments in
Family Courts. I need to explain that the Contract Attorney Program run by
the Judicial Counsel relates to criminal appointment in Family Division
courts, District and Municipal Courts and Superior Courts. Cases on
appeal to the Supreme Court are handled by either the Appellate Defender or
a Contract Appellate Attorney. An attorney who is awarded a contract
agrees to handle representation in specific geographic regions/courts. We
do not have a separate contract for Family Division courts.
I have enclosed a copy of the Agreement for Contract Attorney Services
Pursuant to RSA 604-A:2-b. This document serves as the universal agreement
and is then modified to make the agreement specific to the attorney's
geographic area. You will note that under the terms of this agreement,
contractors cannot handle first and second degree murder cases and abuse
and neglect cases. In the cases of abuse and neglect, appointment is
handled through the so-called assigned counsel list in the District and
Municipal Courts. Since 1995 the statute calls for the legal
representative of the child to be a GAL. Overall, the contract serves as
the second tier of criminal representation provided in the statute. In the
first instance, the Court is required to appoint the Public Defenders, who
likewise, are not assigned in abuse and neglect cases.
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. Attorneys must complete the questionnaire and be selected
based on experience for an interview with the Judicial Counsel, through its
Indigent Defense Committee. The availability of contracts is directly
related to a Court's caseload and whether the Public Defender Program has
adequate resources available to handle that caseload. Since the Contract
does not provide a "guarantee", it is important that we write contracts
that can be met by the attorneys based upon the analysis of available
caseload.
All courts in the state receive a copy of the enclosed Listing of Current
Contract Attorneys. I do not forward a copy of the List to the
Administrative Office of the Courts as they play no direct role in the
assignment of these cases. As I am sure you know, the actually assignment
of cases is made at the local Court level. I merely provide a List of
available contract attorneys and they make case assignments based upon need
and availability of the attorney to make a scheduled Court date. Sometimes
conflicts arise which preclude an attorney from accepting certain cases.
Each July 1 the contract period begins, based upon the state's fiscal
year. Usually by mid-July to early August, this Office sends out an
individual letter to each Court indicating who their contract attorneys for
the year are. Since this list may be added to during the year,
periodically we send out new contract lists. We send multiple copies of
the List to each Court, although I sometimes find that it is hard to get
the list into the hands of the person who actually assigns cases in a
specific Court.
A copy of the Contract Attorney Questionnaire is enclosed for your
reference. From the information submitted in response to the questions,
the Judicial Council is able to form some initial assessment as to the
general qualifications of the applicant. The interview itself helps
clarify those qualifications. The number of contracts written is based
upon caseload need and available appropriation.
You first question asks whether this is the correct office to request
contract attorney status. I did place a call to your office, as I am not
certain what you mean by "status"? Please give me a call or provide more
specific details as to the information you are seeking.
The Judicial Council does maintain a separate contract with CASA of New
Hampshire subject to Governor and Council Approval. This Contract provided
direct financial support for the training and recruitment of CASA
volunteers. As you know, CASA provides GAL representation in many abuse
and neglect cases, the local Court make the determination whether to
appoint a lawyer GAL, a non-lawyer GAL or a CASA volunteer in these cases.
The statute does not mandate priority of appointment of counsel, the
attorney is named from Assigned Counsel and is paid for by DCYF. As in all
cases, the Court makes the actual appointment of counsel and selects who
that individual is.
I hope you will find this information helpful. Please let me know if I
can be of further assistance to you in this matter.
Now we have two year interlude. Judge Taube
reported me to the Professional Conduct Committee about the above matters
and referring to the list as the "Magical Mystery List" on this page. PCC
wheels turn slowly, but a hearing into the complaint got things moving again.
Most of that is documented on the PCC pages, as it is not pertinent here.
However, the following letter shines new light on the matter:
RE: Complaint #00-036, Dear Mr. DeHart:
I am writing to address Attorney Werme's questions concerning the Family
Division documentation regarding the appointment of counsel recently sent to
her by Attorney Elizabeth Hodges at my request.
In some cases, the court is required to appointment certain classification
of counsel due to reimbursement constraints for the delivery of indigent
services. For instance, in juvenile delinquency cases, the court must appoint
an attorney from the public defenders office, unless the public defenders
office has a conflict, in which case the court must appoint an attorney from
the "contract attorney" list. If there is no contract attorney available, then
the court may appoint an attorney based on criteria completely within the
discretion of the court.
The statement quoted in Paula Werme's letter regarding - "Abuse and
Neglect - any attorney, but cannot use public defender" - was
taken from an informal abbreviated guideline created primarily to alert
the clerk's office about system restrictions on the appointment of
counsel. The statement indicates that any attorney, other than a public
defender, can be appointed counsel for a parent in an abuse and neglect
case. In these cases (as well as termination of parental rights cases) in
which any attorney may be appointed, the court is free from any system
constraint, but has the discretion to develop its own criteria for appointment
of counsel. To this end, the Family Division, since its inception, has chosen
routinely to utilize the "Contract Attorneys" list for abuse and neglect and
termination of parental rights cases.
There are good reasons for relying on the "Contract Attorney" list when
appointing counsel. The attorneys on the contract list are screened and
monitored by the Judicial Council. Therefore, selecting an attorney from the
"Contract Attorney" list provides some quality assurance that the attorney has
the requisite legal competence, experience, and temperament to appropriately
represent persons entitled to legal counsel. This has been the policy and
practice, but there has never been a need to reduce it to writing. Please
contact me if you and/or the Professional Conduct Committee have any further
questions regarding this matter.
cc: Honorable Gerald Taube
Contact Paula Werme, Esq. or
return to Law Practice home page.
Last updated 2002 April 3.
December 15, 1999
Administrative Office of the Courts
Noble Drive
Concord, NH 03301
Sincerely,
Paula J. Werme, Esq.
The Honorable Edwin Kelly
Ned Gordon, Chairperson
DCYF Field Practices Study Committee
Administrative Office of the District Courts
PO Box 389
Concord, NH 03302-0389
Sincerely,
Paula J. Werme, Esq.
DCYF Field Practices Study Committee
Yours very truly,
Donald D. Goodnow, Esq.
Director
Paula J. Werme, Esq.
Respectfully submitted,
Everard Hatch, Esq. for DCYF
83 North Main Street
Boscawen, NH 03303
Sincerely yours,
Nina C. Gardner
Executive Director - NH Judicial Counsel
JUDICIAL BRANCH
FAMILY DIVISION
March 29, 2002
Heidi Boyack
Administrator
Two Noble Drive
Concord, NH 03301
(603)271-2521
FAX: (603) 271-3977
TTY/TDD Relay: (603) 225-4033
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301
Paula J. Werme v. Professional Conduct Committee
Sincerely
Heidi Boyack
Attorney Paula Werme