This page is an unofficial mirror and is not legal advice. Verify the document against the official source before relying on it.
Stephen A. S. White (2008)
stipulated to two additional facts at the discussion before the Hearing Panel on
The parties agreed upon and entered into a Stipulation of Facts. The parties also
I. Findings of Fact
reached the following decision.
Having reviewed the record and considered the Hearing Panel Report, the Committee
deliberations and Gerald A. Daley was recused from the matter.
Also participating was David N. Cole by telephone. Vice Chair Tony M. Gray was absent for
Darling; Gretchen Rule Hamel; James R. Martin; Thomas P. Connair; and James J. Tenn, Jr.
H. Nelson, Committee Chair; Benette Pizzimenti, Vice Chair; Alan J. Cronheim, Richard H.
the Hearing Panel Report dated April 25, 2008. Committee members present included Margaret
On May 20, 2008, the Professional Conduct Committee met and reviewed this matter and
the matter to a hearing panel for the development of a more complete record.
White, Esquire, appeared on his own behalf. The Committee denied that Motion and remanded
Assistant Disciplinary Counsel, appeared for the Attorney Discipline Office (ADO) and Stephen
Assented To Motion To Pennit Waiver of Hearings Committee Process. James L. Kruse,
On December 11, 2007, the Professional Conduct Committee denied the parties'
PUBLIC CENSURE WITH CONDITIONS
White, Stephen A.S. advs. Lucian Tower #06-009
Gerald A. Daley* Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney member Thomas P. Connair James J. Tenn, Jr. David N. Cole David N. Page* Toni M. Gray,* Vice Chair 603-224-5828 .Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Gretchen Rule Hamel Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Richard H. Darling*
Professional Conduct Committee New Hampshire Supreme Court 2
appointment was issued on August 16, 2004.
represent Mr. Tower in connection with the referenced criminal matter. The Order of
office and Mr. White, the Strafford County Superior Court appointed Mr. White to
6. Following a telephone conversation between the Strafford County Superior Court Clerk's
Ms. Wiberg's motion was granted on August 13, 2004.
appoint new counsel"to represent Mr. Tower for purposes of sentencing and appeal."
claimed he had had ineffective assistance of counsel. Ms. Wiberg asked the court to
Withdraw. She represented that her client had filed a motion in which Mr. Tower
5. On August 9, 2004, Mr. Tower's trial counsel, Patricia Wiberg, filed a Motion to
four Class A felonies, including felonious sexual assault of his minor daughter.
appear for a sentencing hearing on September I, 2004. Mr. Tower had been convicted of
4. On July 9, 2004, Mr. Tower was ordered by the Strafford County Superior Court to
White filed a response dated March 29, 2006.
February 16, 2006, followed by additional correspondence dated April 3, 2006. Mr.
3. Mr. Tower initiated this proceeding with his sworn letter of complaint dated
Prison.
2. The Complainant is Lucian Tower. Mr. Tower is an inmate at the New Hampshire State
4663.
operating out of his office at 44-0 Dover Point Road, Dover, New Hampshire 038 20-
Bar in 1979. At all times material to this proceeding, Mr. White was a sole practitioner
I. Respondent, Stephen A.S. White, is a New Hampshire attorney who was admitted to the
the Stipulation of Facts by clear and convincing evidence as follows:
February 27,2008, that are also set forth below. The Professional Conduct Committee accepts 3
17. Absent notice of a New Hampshire Supreme Court appeal, a sentence review hearing was
behalf ofMr. Tower.
16. Mr. White did not file a Notice of Appeal with the New Hampshire Supreme Court on
appeal filed on behalf ofMr. Tower.
next few months" unless deferred upon notice of any New Hampshire Supreme Court
acknowledged the request and indicated that the matter would be scheduled"within the
15. By letter of May 6,2005, the Superior Court Clerk (Sentence Review Division)
executed by Mr. Tower.
14. On September 30,2004, Mr. White timely filed a request for sentence review that was
sentences and advised Mr. Tower of his right to sentence review.
1 3. Following hearing, the Superior Court imposed lengthy New Hampshire State Prison
merit to Mr. Tower's claim.
ineffective assistance oftrial counsel. Mr. White advised that he did not think there was
12. Prior to the hearing, Mr. White discussed with Mr. Tower Mr. Tower's claim of
on behalf ofMr. Tower.
11. The sentencing hearing was rescheduled for September 28, 2004, and Mr. White appeared
10. Mr. White did not contact Ms. Wiberg to discuss Mr. Tower's case.
Wiberg's office to obtain Mr. Tower's file.
9. Mr. White filed a formal, general appearance on August 27,2004. He also contacted Ms.
criminal matter. Mr. White reviewed the Court's file.
8. Mr. White had access to the Strafford County Superior Court file regarding the subject
representation in the subject criminal matter.
7. The Superior Court's Order appointing Mr. White did not limit the scope of his 4
25. Mr. White did not file a Notice of Appeal with the New Hampshire Supreme Court on
anticipated seeing Mr. Tower before the next sentence review hearing.
denied access to Mr. Tower at the prison on January 20,2006, because Mr. White
2 4. Mr. White did not communicate with Mr. Tower or arrange another visit after being
Tower because there were no visiting hours on Fridays.
proceeded to the visiting area ofthe prison as planned, but was denied access to Mr.
Tower that Mr. White would see him in a few minutes after the next hearing. Mr. White
23. At the conclusion of the January 20, 2006, sentence review hearing, Mr. White told Mr.
discuss the case, other than how the sentence review hearing would proceed.
22. On the occasion ofthe January 20,2006, hearing Mr. White and Mr. Tower did not
thereafter, Mr. White requested a continuance due to a scheduling conflict.
presented the wrong case, the matter was rescheduled for March 17, 2006. Shortly
convened at the New Hampshire State Prison. However, because Mr. White erroneously
21. Mr. White appeared with Mr. Tower at the January 20,2006, sentence review hearing
White did not respond to Mr. Tower's aforesaid letter orally or in writing.
recall receiving the letter until after the January 20,2006, sentence review hearing. Mr.
20. Mr. Tower's aforesaid letter was post-marked January 17, 2006. Mr. White does not
unable to reach Mr. White and requested a response within one week.
19. In his letter dated January 6,2006, Mr. Tower also told Mr. White that he had been
in the subj ect criminal matter.
writing why he had not filed a Notice of Appeal with the New Hampshire Supreme Court
18. Mr. Tower sent Mr. White a letter dated January 6, 2006, asking Mr. White to explain in
initially scheduled for December 16, 200 5, and then rescheduled for January 20,2006. 5 Supreme Court, requesting that replacement counsel be appointed to represent Mr. Tower
33. On May 3,2006, Mr. White filed a Request for Instructions with the New Hampshire
rescheduled sentence review hearing.
Superior Court (April 17, 2006) to replace Mr. White and to represent Mr. Tower at his
addition, Attorney Michael J. Sheehan had been appointed by the Strafford County
complaint (February 16, 2006) against Mr. White that is the subject ofthis proceeding. In
Tower's behalf. However, by that time, Mr. Tower had already filed the disciplinary
citing Supreme Court Rule 32, directed Mr. White to file a Notice of Appeal on Mr.
32. On April 20, 2006, the New Hampshire Supreme Court granted Mr. Tower's motion and,
31. Mr. White did not file a response to Mr. Tower's aforesaid motion of February 2,2006.
30. Mr. Tower forwarded a copy of his aforesaid motion of February 2,2006, to Mr. White.
discipline complaint against Mr. White.
asking for information about such filing, and that he was contemplating filing an attorney
to file a Notice of Appeal on his behalf, that Mr. White had failed to respond to his letter
29. In his aforesaid motion of February 2,2006, Mr. Tower claimed that Mr. White had failed
leave to file a late appeal and for appointment of counsel.
28. On February 2,2006, Mr. Tower, pro se, moved the New Hampshire Supreme Court for
representation ofMr. Tower.
27. Mr. White did not convey his aforesaid beliefto Mr. Tower at any time during his
Mr. Tower.
responsibility under Supreme Court Rule 32(1) to file a Notice of Appeal on behalf of
26. Having not served as trial counsel in the case, Mr. White did not believe that he had a
behalf ofMr. Tower at any time after the January 20,200 6, sentence review hearing. 6 connection with the pending criminal matter.
41. Mr. White owed Mr. Tower a duty to provide him with competent representation in
Court Rule 32.
Tower on appeal, unless relieved of such responsibilities by the Court. See Supreme
ofMr. Tower at the sentencing hearing. He was also responsible for representing Mr.
40. Mr. White's responsibilities as appointed counsel were not limited to appearing on behalf
criminal matter.
2004, when he was appointed by the Superior Court to represent Mr. Tower in the
39. Mr. White had an attorney-client relationship with Mr. Tower from and after August 1 6,
38. Allegations set forth above are incorporated by reference.
Rule 1.1(a) - ec): Competence
the following Rulings of Law by clear and convincing evidence:
The Professional Conduct Committee determined that the record in this matter supports
II. Rulings of Law
Appeal with the New Hampshire Supreme Court was October 28, 2004.
37. In order to timely appeal Mr. Tower's conviction, the deadline for filing a Notice of
3 6. Mr. Tower was convicted in his criminal matter by jury verdict on June 17, 2004.
convictions below.
Court appeal. The Court issued an order dated August 28, 2007, affirming the
35. Mr. Sheehan represented Mr. Tower in connection with his New Hampshire Supreme
Request for Instructions.
34. By Order of May 24,200 6, the New Hampshire Supreme Court granted Mr. White's
on appeal. of N.H. R. Prof. Conduct 1.4. 7
51. The above conduct by Mr. White constitutes clear and convincing evidence of a violation
of time with Mr. Tower about the status of his case.
50. Mr. White breached the foregoing duty by neglecting to respond over an extended period
requests for information about the case.
status of the criminal matter and to comply promptly with Mr. Tower's reasonable
49. Mr. White owed Mr. Tower a duty to keep Mr. Tower reasonably informed regarding the
48. Allegations set forth above are incorporated by reference.
Rule 1.4: Client Communicatious
of N.H. R. Prof. Conduct 1.3 (a).
47. The above conduct by Mr. White constitutes clear and convincing evidence of a violation
Supreme Court appeal on behalf of Mr. Tower.
46. Mr. White breached the foregoing duty by failing to file a timely New Hampshire
representing Mr. Tower.
45. Mr. White owed Mr. Tower a duty to act with reasonable promptness and diligence in
44. Allegations set forth above are incorporated by reference.
Rule 1.3(a): Diligence
of N.H. R. Prof. Conduct l.1(a)-(c).
43. The above conduct ofMr. White constitutes clear and convincing evidence of a violation
assure protection and pursuit of Mr. Tower's right of appeal.
defense counsel for Mr. Tower and Mr. White failed to attend to details necessary to
knowledge ofthe law insofar as it related to the scope of his responsibility as appointed
42. Mr. White breached said duty owed to Mr. Tower in that Mr. White did not have specific 8
ultimate sanction. Grew's Case at 365. As set forth above, Mr. White violated his duty to
baseline sanction. The fourth factor, aggravators or mitigators, is then addressed to arrive at the
The first three factors are used to categorize the attorney's misconduct and to identify a
Standards, supra § 3.0; Coddington's Case, 155 N.H. at 6 8.
(4) The existence of aggravating or mitigating factors.
(3) The actual or potential injury caused by the lawyer's misconduct; and
(2) The lawyer's mental state;
(1) The duty violated by the lawyer;
for guidance. rd. The Standards set forth four factors to consider when imposing sanctions:
Association's Standards For Imposing Lawyer Sanctions (2005)(Standards), they are looked to
Although the New Hampshire Supreme Court has not adopted the American Bar
quoting Coddington's Case 155 N.H. 66, 6 8 (2007).
profession, and prevent similar conduct in the future." Grew's Case 156 N.H. 361, 365 (2007),
is"to protect the public, maintain public confidence in the bar, preserve the integrity of the legal
the following analysis. The purpose of attorney discipline is not to inflict punishment, but rather
referenced Findings of Fact and Rulings of Law, the Professional Conduct Committee sets forth
disagreed upon whether the Facts constitute a violation of the Rules. In light of the above
While the parties stipulated to the applicable Facts, as set forth above, the parties
III. Analysis of the Appropriate Sanctions
Conduct 8.4(a).
rules, there is necessarily clear and convincing evidence of a violation of N.H. R. Prof.
52. Because there exists clear and convincing evidence that Mr. White violated the above
Rule 8.4(a): Miscouduct 9
I Section 4.43: Reprimand [construed as public censure under N.H. Sup. Ct. R. 37(2)(g)].
file an appeal. It is clear that Mr. White was aware that an appeal should have been filed thirty
communicated with his client about the issue of an appeal and more specifically the deadline to
The Professional Conduct Committee maintains that Mr. White should have
issue of an appeal was required to be addressed.
counsel regarding this matter and should have determined from his review ofthe file that the
file an appeal on behalf of this criminal client. Further, Mr. White could have spoken to trial
from this matter due to a conflict with the client and that there was no other attorney involved to
explanation is difficult to understand as Attorney White knew that trial counsel had withdrawn
32 relating to the filing of an appeal, did not apply to him as he was not trial counsel. This
Mr. White offered in support of his position, his interpretation that Supreme Court Rule
sentencing and appeal;" (emphasis added).
Wherefore clause, that the Court:"Appoint new counsel to represent [client] for the purposes of
In fact, the Motion To Withdraw filed by trial counsel, requested in Paragraph D of the
with his client, in addition to sentencing issues, the issue of a criminal appeal.
the Court did not limit the scope of representation. As such, Mr. White should have addressed
trial, Mr. White was appointed to represent this client for sentencing. In appointing Mr. White,
representation of his client. While Mr. White did not represent the individual at issue during
case, Mr. White was negligent in failing to adequately review and understand the scope of his
representing a client, and causes injury or potential injury to a client." Standards § 4.43. In this
generally appropriate"when a lawyer is negligent and does not act with reasonable diligence in
communicate properly with his client. The Standards § 4.43, state that a public censure I is
provide competent representation, to act diligently in representing his client, and failed to 10 management practices by a professional consultant skilled in office management. Mr.
shall arrange for and undergo, at his own expense, a formal audit of his office
1. Mr. White shall complete mandatory diversion under Rule 37 A (I)(g)( 4)-(8). Mr. White
conditions:
The Professional Conduct Committee hereby issues a Public Censure with the following
IV. Sanctions
could face difficulty with future clients should his conduct continue.
admonition, a public censure, and two warnings. The Committee is concerned that Mr. White
disciplinary history. See Standards § 9.22 (a). Mr. White has had three reprimands, an
However, there is also a significant aggravating factor involving Mr. White's prior
Standards § 9.32 (b); (e); and (j). The Committee applies these mitigators.
address his office and practice policies, and his full cooperation regarding this matter. See
Committee acknowledges Mr. White's absence of a dishonest motive, his good faith effort to
The final factor to consider involves aggravating or mitigating circumstances. The
did accept the client's appeal.
In this case, there was no actual injury because the New Hampshire Supreme Court ultimately
The third factor addresses actual or potential injury caused by the lawyer's misconduct.
file an appeal was not intentional but negligent.
As to the factor involving mental state, the Committee finds that Mr. White's failure to
challenges, but those challenges can be met through appropriate efforts.
The Committee is aware that communicating with incarcerated clients poses additional
sentence review, which also carries a thirty day deadline, but did not address the issue of appeal.
days after the sentencing hearing. After the sentencing hearing, Mr. White did timely file for II
show cause why he should not be held in contempt and subject to further orders of
Mr. White shall be brought before the Professional Conduct Committee on a petition to
mandatory diversion, andlor fails to allow the ADO to oversee his compliance therewith,
5. In the event that Mr. White is unable or unwilling to comply with the terms of the
ADO.
documenting the results of the subsequent audit, which report shall be filed with the
the cost and expense for such audit. The consultant shall prepare a written report,
months, but not before fifteen months, after the date ofthis Order. Mr. White shall bear
be performed by the same consultant, or one approved by the ADO, no later than eighteen
4. A subsequent audit, with the same focus as identified in paragraph two (2) herein, shall
ADO, in the form of a written report, within six months of the order issued in this matter.
shall fully implement the consultant's recommendations and show proof of same to the
what extent Mr. White has implemented the consultant's recommendations. Mr. White
determine whether and to what extent the audit has been completed and whether and to
in this proceeding. The ADO shall have the authority to contact the consultant to
3. Mr. White shall undergo the audit within three months ofthe date of the final order issued
procedure; and 1) availability and training of support staff.
calendaring and acting upon deadlines and commitments; e) researching issues oflaw and
materials; b) client communications; c) planning and tracking case development; d)
relating to: a) receipt and filing of, and timely response to, all communications and
2. The focus of such audit shall be on Mr. White's office practices, systems, and resources
must be approved by the ADO before the audit is undertaken.
White shall implement any and all recommendations ofthe consultant. The consultant 12
File Stephen A.S. White, Esquire James L. Kruse, Assistant Disciplinary Counsel Distribution:
June JJL, 2008
investigation and prosecution of this matter.
White agrees to pay the expenses incurred by the Professional Conduct Committee in the
The Professional Conduct Committee accepts the Stipulation As To Costs, in that Mr.
v. Stipulation As To Costs
credits for future annual CLE requirements.
completion of those credits. These additional credits shall not be used as carry-over
and (3) risk management, and Mr. White shall provide confirmation to the ADO of his
focusing on the following: (1) law office management; (2) criminal appellate procedure;
shall be required to complete six (6) additional continuing legal education credits
within one (l) year ofthe date ofthe Final Order issued in this proceeding, Mr. White
6. In addition to the standard requirement for completing annual continuing legal education,
the Committee.