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Paula J. Werme (2009)
Page 1 of 12
establishes those facts by clear and convincing evidence. The Stipulation provides as follows:
The Committee voted to accept the Stipulation of Facts dated June 16, 2008, which
I. FACTUAL FINDINGS
October 2, 2008.
Hearing September 23, 2008 and Hearing Panel Report and Recommendation dated
Record - Exhibit A, Email submission from Respondent-Exhibit 1, Transcript of Sanction
Facts and Rules, Protective Order, Motion for Protective Order, Paula J. Werme's Disciplinary
The Committee reviewed the Record, including: the Notice of Charges; Stipulation of
and Gretchen Rule Hamel were absent.
Daley, Richard H. Darling, James R. Martin, and Marilyn Billings McNamara. Susan R. Chollet
Toni M. Gray, Vice Chair, David N. Cole, Thomas P. Connair, Alan J. Cronheim, Gerald A.
Members present included: Margaret H. Nelson, Chair, Benette Pizzimenti, Vice Chair,
Discipline Office. Paula J. Werme, Esquire, appeared pro se.
above-referenced matter. Landya B. McCafferty, Disciplinary Counsel, appeared for the Attorney
On January 29,2009, the Professional Conduct Committee heard Oral Argument in the
SIX MONTH SUSPENSION - STAYED FOR TWO YEARS
Werme, Paula J. advs. Attorney Discipline Office # 07-017
Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole Marilyn Billings McNamara Susan R. Chollet* James R. Martin Toni M. Gray, * Vice Chair 603-224-5828. Fax 228-9511 Gretchen Rule Hamel Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Richard H. Darling* Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Gerald A. Daley*
Professional Conduct Committee New Hampshire Supreme Court Page 2 of 12 duties. regarding their ability to obtain custody and whether the uncharged parent is unfit to perfonn his or her parenting Supreme Court held that parents not charged with abuse and neglect are entitled to a full hearing in the court 3 The cited case was an appeal by the father of Bill F. The father was not charged with abuse or neglect. The neglect petitions. 2"DCYF" refers to the New Hampshire Division of Child, Youth and Family Services which initiates abuse and Child Protection Act. factual fmdings. The order of the Milford District Court was involved a proceeding pursuant to RSA I 69-C, the 1 This footnote and subsequent footnotes are provided by way of explanation and clarification of the Connnittee's
11. DCYF included the following in its motion for a"no contact" order:
between E.S. and the father. 10. On or about September 14,2005, DCYF requested a"no contact" order
behalf ofthe father. 9. On or about September 9,2005, Ms. Werme filed an Appearance on
8. E.S. continued living in placement.
7. The father was represented at that time by Linda J. Argenti, Esquire.
and by order dated August 24, 2005, found the father was not a fit parent. 3 6. The Court held a hearing pursuant to In re: Bill F., 145 N.H. 267 (2000),
Hampshire from Pennsylvania. Pennsylvania. After approximately one month, E.S. was returned to New the State of New Hampshire, without authorization, to reside with him in 5. In May 2005, the father appeared to have orchestrated E.S.'s removal from
placing E.S. with him? conduct a home study on E.S.'s father to determine the appropriateness of 4. In March 2005, the DCYF requested that its Pennsylvania counterpart
physical needs ofE.S. as a result of the mother's chronic alcohol abuse. neglected child due to the mother's inability to meet the emotional and 3. Following a hearing, on March 10,2005, the Court found E.S. to be a
to an emergency situation created the mother's extreme abuse of alcoho1. l E.S. (d.o.b.5/2/90) was removed from the physical care of her mother due 2. On February 10, 2005, by order of Milford District Court (Crocker, J.),
North Main Street, Boscawen, New Hampshire 03303. material to this proceeding, Ms. Werme operated her law office at 83 Ms. Werme was admitted to practice on October 28, 1996. At all times 1. Ms. Werme is an attorney licensed to practice law in New Hampshire. Page 3 of 12 represent the interests of children who are involved in abuse and neglect proceedings. 4"CASA", refers to Court Appointed Special Advocates, and"GAL" is Guardian Ad Litem. CASA volunteers
between [the father] and [E.S.]. A. Prohibit any direct or indirect unsupervised contact
WHEREFORE the Division requests this Court:
to this Motion.4 10. Laurie Bruno, CASAIGAL, has been contacted and assents
9. This phone call also caused enormous stress for [E.S.].
for [E. S. 's] best interest but that the caller would. an attorney, and was told that DCYF was not looking out on her cell phone from a woman identifying herself only as 8. On the evening of September 7,2005 [B.S.] received a call
placement and does not want it disturbed. live with her father, she is now quite content with her 7. Although in the past [B.S.] has stated that she wanted to
the stress, caused by these phone calls. caused by the stress, but are definitely being exacerbated by 6. [B.S.] is currently having medical problems that may be
stated that she"wants the harassment to stop." 5. After the last phone conversation with [the father], [B.S.]
preparing to sue the relatives she is currently placed with. 4. [E.S.] reported that [the father] has told her that he is
shouting matches between [the father] and [E.S.]. for her, and these calls have quickly deteriorated to 3. [The father] has called [E.S.], on the cell phone he provides
have greatly upset her. 2005 [B.S.] has received phone calls from her father that 2. On August 24, 2005, September 1,2005 and September 7,
relatives. 1. [E.S.] is in the legal custody ofDCYF and placed with Page 4 of 12
determined it unlikely that E.S. would be returned to the father's care. that the Court determined the father had placed on E.S., the Court 17. Due to the prior removal ofE.S. out-of-state and the emotional pressure
returned to her mother's care. consume alcohol, and the Court determined it unlikely that E.S. would be 16. Following that Order, the Court determined that E.S.' mother continued to
force and effect. All prior orders, not inconsistent with the above, remain in full
from [E.S.]. condition has stabilized and the court can get some direct input The court will revisit this order when [E.S.'s] medical
authorized by DCYF in conjunction with CAS A. Absent a further order of the court, contact may be
his attorney are to have any unauthorized contact with [E.S.]. hereby orders that neither [the father], members of his family, or Until her medical condition is under control, the court
her. as those conservations of late have been heated and stressful for stress. At this time she wishes to have no contact with her father, currently has a medical condition which may be exacerbated by protective orders. The court, upon offers of proof, finds that [E.S.] The court grants, on a temporary basis, DCYF's request for
15. In that Order, the Court held, in relevant part, as follows:
Motions," which Order was dated October 6,2005. 14. On October 7,2005, the Court issued an order entitled,"Hearing on
Court (Crocker, J.) on DCYF's motion, as well as several other issues. 13. On September 19 and 28,2005, hearings were held in Milford District
12. Ms. Werme objected to the requested"no contact" order.
C. Grant such other relief as is deemed just.
approved by DCYF; and B. Define"supervised" as observed by a professional Page 5 of 12 pursuant to RSA 463:4. 5 Jurisdiction over the guardianship of a minor would have been in the Probate Court for Hillsborough County
October 6,2005, "no contact" Order was still in effect. 1. At the time that E.S. received Ms. Werme' January 25,2007, letter, the
representative. 21. E.S. received Ms. Werme's January 25 letter and showed it to a CASA
to sending the January 25,2007, letter to E.S. 20. Ms. Werme did not seek the approval of the Court, DCYF, or CASA prior
the mother cc. the father
Paula J. Werme
Sincerely,
I have to say is correct there. that it be dismissed if you do not attend. You will hear everything You must attend the guardianship hearing as per statute. I will ask
have been told otherwise by DCYF or anyone else. think you know has always been there. I feel very badly that you due child support. All he [sic] to offer you is his love, which I any of it unless there was money left over after payment of his past to pay every nickel of past due child support, you would not see state of New Hampshire. Ifhe were to win Megabucks and be able Unfortunately this is not true. Your father owes the money to the
[sic] to go to college." his past due child support, there would be plenty of money for your [E.S.'s relatives] have told you that"if only your father would pay It appears to me from information I now have that apparently
Dear [E.S.]:
dated January 25,2007, to E.S. In the letter, Ms. Werme wrote: 19. While a guardianship hearing was pending, Ms. Werme wrote a letter
guardianship for E.S.5 18. Due to the unlikelihood of parental reunification, DCYF began to pursue a Page 6 of 12
(2004). Rather, the purpose of the Court's disciplinary power"is to protect the public, maintain
sanctions are not intended as a mode of inflicting punishment. Kersey's Case, 150 N.H. 585, 585
Supreme Court. See, e.g., Feld's Case, 149 N.H. 19,28 (2002). Disciplinary action and
sanction is in accord with the purposes of attorney discipline as described by the New Hampshire
(6) month suspension with the suspension being stayed for a period of two (2) years. This
Professional Conduct Committee concludes that the appropriate discipline in this matter is a six
Having made the above findings and rulings, and for the reasons stated below, the
III. SANCTION
violation ofN.H. R. Prof. Conduct 3.4(c). 5. Ms. Wenne's conduct in this regard constitutes clear and convincing evidence ofa
the Court's October 6,2005 "no contact" Order. 4. By forwarding to E.S. the January 25, 2007 letter, Ms. Wenne knowingly violated
3. Ms. Wenne was aware ofthe October 6, 2005 Court Order.
that prohibited Ms. Wenne from having unauthorized contact with E.S. January 25, 2007 letter to B.S., there was an October 6, 2005 Court Order in effect 2. At the time that Ms. Wenne made contact with B.S. via Ms. Wenne's
authorization from the Court, DCYF, or CAS A. 1. Prior to sending the January 25, 2007 letter to B.S., Ms. Wenne did not seek
The Stipulation provides as follows:
Disobey Court Order, and Rule 8.4(a): General Rule.
that Ms. Wenne violated the following Rules of Professional Conduct: Rule 3.4(c): Knowingly
this case, the Professional Conduct Committee voted to find by clear and convincing evidence
Based on the Stipulation of Facts, the Stipulation As To Rules Violated, and the record in
II. RULINGS OF LAW Page 7 of 12
with a court order or rule, and causes injury or potential injury to a client or other 6.23 Reprimand is generally appropriate when a lawyer negligently fails to comply
or potential interference with a legal proceeding. or rule, and there is injury or potential injury to a client or a party, or interference 6.22 Suspension is appropriate when a lawyer knows that he is violating a court order
potentially serious interference with a legal proceeding. causes serious injury or potentially serious injury to a party, or causes serious or order or rule with the intent to obtain a benefit for the lawyer or another, and 6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court
Standards, Sec. 6.2 provides:
Tribunal except for an open refusal based on an assertion that no valid obligation exists."
Legal Process". This Standard includes the"failure to obey any obligation under the Rules of the
The relevant ABA Standard for Ms. Werme's violation is 6.2 which is entitled"Abuse of
Standards are useful as guidelines but their application is not mandatory.
aggravating or mitigating factors." Standards Sec. 3.0; Coffey's Case, 152 N.H. at 513. The
(c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of
four factors to consider in imposing sanctions:"(a) duty violated; (b) the lawyer's mental state;
Standards, the Court has considered them when imposing sanctions). The Standards set forth
149 N.H. 132, 139 (2003) (noting that, although the Court has never formally adopted these
determine the baseline sanction. Coffey's Case, 152 N.H. at 513; see also, e.g., Shillen's Case,
Association's Standards/or Imposing Lawyer Sanctions (1992) ("Standards"} for guidance to
The New Hampshire Supreme Court and this Committee look to the American Bar
omitted)."The sanction must take into account the severity of the misconduct." Id.
conduct in the future." E.g., Coffey's Case, 152 N.H. 503, 513 (2005) (internal quotation marks
public confidence in the bar, preserve the integrity of the legal profession, and prevent similar Page 8 of 12 7 Section 6.24 uses the term"admonition". The most analogous sanction in New Hampshire is a reprimand. 6 Section 6.23 uses the term"reprimand". The most analogous sanction in New Hampshire is a public censure.
counseled her client to provide confidential court records to a newspaper in violation of statute,
received a reprimand. In Werme's Case, 150 N.H. 351 (2003), the Court found that Ms. Werme
conduct in this case differs from the intentional acts in the prior matter for which Ms. Werme
reckless conduct." The Committee is well aware of Ms. Werme's prior disciplinary record. The
stipulation did not support the Hearing Panel's conclusion of"intentional and at least grossly
conduct was intentional and/or knowing. Disciplinary Counsel contends that the parties'
The Committee recognizes that there is disagreement regarding whether Ms. Werme's
the child and could have caused potential injury to the legal proceedings.
cause of injury or potential injury to the child and could have caused potential injury to
child involved in an abuse and neglect proceeding and a guardianship proceeding, was the
3. The violation of Rule 3.4( c), an expressly prohibited direct communication with a minor
violation of the Court's unambiguous Order.
2. Ms. Werme knew or should have known that by communicating with [E.S.] she was in
3.4(c) of the Rules of Professional Conduct.
1. The duty violated was one owed to the court and the judicial process, embodied in Rule
Applying the factors in the Standards, the Committee concludes as follows:
The Committee identified the baseline sanction as a suspension using Standard 6.22.
interference with a legal proceeding. 7 no actual or potential injury to a party, or causes little or no actual or potential instance of negligence in complying with a court order or rule, and cause little or 6.24 Admonition is generally appropriate when a lawyer engages in an isolated
party, or causes interference or potential interference with a legal proceeding. 6 Page 9 of12
practice oflaw. The Panel's decision was based in part on a finding and conclusion that Ms.
children in abuse and neglect and guardianship cases before she is pennitted to resume the
at the practice and ethics of dealing with parties, counsel and third parties, including minor
Education ("CLE") satisfactory to and approved by the Professional Conduct Committee aimed
for a period of three (3) months and that she be ordered to complete a course of Continuing Legal
The Hearing Panel recommended that Ms. Wenne be suspended from the practice of law
and (1).
attitude toward the proceeding and Disciplinary Counsel and remorse. See, Standards § 9.32 (b), ( e),
There are several mitigating factors: absence of a dishonest or selfish motive, cooperative
issued by the Milford District Court.
position in life and in the legal system, and for whose protection the"no contact" Order was
Warning. See, Standards § 9.22(a) and (c). The case involved a minor child, in a vulnerable
disciplinary history involving similar circumstances. The record includes a Reprimand and a
§ 9.0. Focusing first on the aggravating factors, there are three. Ms. Wenne has a prior
In assessing the aggravating and mitigating factors, the Committee reviewed Standard
remorseful.
justified, she acknowledges her mistake, and as Disciplinary Counsel characterizes it, is
Ms. Wenne set out to violate the Court Order. Further, rather than arguing that her conduct was
that case, her actions were clearly intentional. However, in this matter there is no evidence that
unconstitutional which empowered her to advise her client to disobey it. The Court disagreed. In
upon counseling her client to violate the statute. Ms. Wenne argued that that the statute was
RSA 169-C:25. According to the plain language of Rule 1.2(d), Ms. Wenne violated Rule 1.2(d) Page 10 of 12
due to the lack of availability of such programs or courses. Without information that such CLEs
Ms. Werme expressed concern that it is unlikely that she could complete the requirement
remorsefulness.
Disciplinary Counsel was clearly impressed by Ms. Werme's acceptance of responsibility and her
She accepts that the line cannot be"crossed" and that she cannot even come close to the line.
Rules. She admits that she did cross the line by violating the Court Order and was very sorry.
has some difficulty balancing her vigorous advocacy for her clients and the application of the
proceedings may cloud her judgment. Ms. Werme acknowledged at the oral argument that she
However, her commitment to defending non-charged parents caught up in abuse and neglect
20:22-21 :2). Ms. Werme is a zealous advocate for her clients and committed to their causes.
than time for which she receives payment. (Hearing Panel Transcript, September 23,2008, at
These cases are not money makers; rather Ms. Werme winds up putting in more pro bono hours
clients involved in factually complicated or medically complicated cases of a similar nature.
proceeding in this matter involved representation of a non-charged father. She also represents
abuse and neglect cases involving the Child Protection Act, RSA 169-C. The underlying
Hampshire. She has focused her practice on defending both charged and uncharged parents in
Ms. Werme is a sole practitioner who operates out of an office in Boscawen, New
intentional and at least grossly reckless violation of Rule 3.4(c).
District Court in October 2005. She takes issue with the Panel's factual finding regarding an
in the record that Ms. Werme intentionally violated the"no contact" Order issued by the Milford
Disciplinary Counsel recommends a public censure and contends that there is no evidence
Werme's mental state was"intentional" and at least"grossly reckless" under the circumstances. Page 11 of 12
the investigation and prosecution of this matter.
Committee accepts the Stipulation as to Ms. Wenne's agreement to pay all costs associated with
Ms. Wenne and Disciplinary Counsel stipulated to the payment of all costs, and the
Rules of Professional Conduct.
mentoring relationship shall focus on the effective advocacy of clients within the confines of the
acceptable to Disciplinary Counsel, for a period of two (2) years at her own expense. The
Ms. Wenne shall enter into a mentoring relationship within sixty (60) days of this Order,
suspension shall be extended until such time as the grievance is resolved.
If a grievance is filed but remains unresolved during this two year period, the stay of the
further hearing to detennine whether a portion or all of the 6 month suspension shall be imposed.
imposed. If Ms. Wenne violates the Rules during this time, the Committee shall schedule a
the Rules of Professional Conduct during this two year period, the suspension shall not be
stayed for a period of two (2) years from the date of this Order. If Ms. Wenne does not violate
Ms. Wenne is suspended for a period of six (6) months, however, this suspension is
IV. CONCLUSION
Professional Conduct Rules in conjunction with a suspension stayed for two (2) years.
assist her in focusing on the balance between effective advocacy and application of the
Committee has detennined that Ms. Wenne would benefit from consultation with a mentor to
declines to impose this aspect of the Hearing Panel's recommended sanction. However, the
would be available to Ms. Wenne within a reasonable period of time, if at all, the Committee Page 12 of 12
File Paula Werme, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:
March 2", 2009
37(3)(c).
appeal this decision to the New Hampshire Supreme Court. See also Supreme Court Rule
Pursuant to Supreme Court Rule 37(A)(III)(d)(2)(D)(4)(A), the parties have the right to
IV. RIGHT TO APPEAL