Lanea A. Witkus (2011)

Hearings Committee Process.

did not attend Oral Argument. The Committee voted to grant the Motion to Permit Waiver of the

Mindy Maville was also in attendance. Richard Maville submitted a letter to the Committee but

(ADO), John C. Kissinger, Jr., Esquire, represented Lanea A. Witkus, Esquire, who was present.

also absent. Julie A. Introcaso, Disciplinary Counsel, represented the Attorney Discipline Office

Richard D. Sager. Margaret H. Nelson, Chair, was recused. Thomas P. Connair was recused and

J. Cronheim, Gerald A. Daley, Richard H. Darling, James R. Martin, Jaye L. Rancourt, and

Chair and Chair of this matter, Toni M. Gray, Vice Chair, Susan R. Chollet, David N. Cole, Alan

M. Tamoney dated September 7, 2011. Members present included: Benette Pizzimenti, Vice

from Richard Maville dated September 3, 2011, and October 18,2011, and a letter from Hugh

deliberated the above captioned matters. The entire record was also reviewed, including letters

On October 18,2011, the Professional Conduct Committee heard Oral Argument and

Alan J. Cronheim Holly B. Fazzino, Admin, Coordinator Thomas P. Connair • non attorney member David N. Cole llichard D. Sager Susan R. Chollet" Jaye L. Rancourt Toni M. Gray,' Vice Chair 603-224-5828' Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 llichard H. Darling' Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Gerald A. Daley'

Witkus Law Office, PLLC, 14 Ash Street, Newport, New Hampshire.

1977. At all times material to this proceeding, the Respondent operated her law office as

1. Lanea A. Witkus ("the Respondent") has been a member of the New Hampshire Bar since

the Maville case. The facts are as follows:

The pmiies have stipulated, and the Committee accepts the Stipulation as to the facts in

been filed.

hereinafter"lviaville case." Since the issuance of the Tamoney Order, no new grievances have

grievance was filed, and later docketed as Witkus, Lanea A.advs. Richard Maville # 09-049,

On September 24, 2009, prior to the imposition of the sanction in the Tamoney case, a

which have been paid in full.

until such time as the grievance was resolved. Ms. Witkus was also ordered to pay all costs,

remained umesolved during the two year period, the stay of the suspension would be extended

that there be no further violations for a period of two years. If a grievance were filed but

were not to be used as carry over credits for the following reporting year. A further condition was

credits were to be in addition to the twelve annual credits required by the N.R MCLE Board, and

on office management within the next six months, with in-person attendance. The additional

Misconduct, subject to certain conditions. Those conditions included attending six hours ofCLE

3.3(a)(1): Candor to the Tribunal; 3.4(d): Faimess to Opposing Party and Counsel, and 8.4(a):

# 06-029, hereinafter"Tamoney case," for violations of N.H. Rules of Professional Conduct

on March 1, 2010, in the matter of Witkus, Lanea A. advs. Hugh M Tamoney

Lanea A. Witkus, Esquire, was issued a six month suspension, with four months stayed,

I. PROCEDURAL BACKGROUND p. 3 Page 3 of8

motion. Her email to Mr. Mavme suggested that she could not comply with the normal

not include copies of the attachments she was submitting to the court in support of her

8. That morning, she emailed a copy of the motion to Mr. Mavme (appearing pro se) but did

21,2009, on behalf of Ms. Mavme.

7. On October 26, 2009, Ms. Witkus filed an Ex Patie Motion to Clarify Order of October

marital estate before the other party or attorney can be heard ... irreparable injury, loss, or damage shall result to the applicant, the children, or the facts shown by sworn statement or by verified petition that immediate or to the other party or attorney only if it clearly appears to the Court from specific B. Ex Parte.... an emergency order may be granted without written or oral notice

emergency and the issues to be addressed at the hearing. mediation, that party shall file a request for an immediate hearing, identifying the A. Emergency. If either party believes a hearing is needed prior to participation in

pertinent part:

6. New Hampshire Family Division Rule 2.9 Emergency and Ex Parte Relief, states, in

5. Many of the motions filed sought expedited relief and were filed in ex parte form.

filed by both sides.

parties and Court made over 400 entries in the case. Many of these entries were motions,

4. The Case Summary of the matter from the Claremont Family Division indicated that the

child support and asset division.

3. The divorce proceedings involved heated and protracted disputes over child custody,

contested divorce proceeding lasting over three years ("the Mavme case").

cOlmection with her representation of Mindy Mavme, Mr. Mavme's ex-wife, in a highly

Ms. Witkus had violated the New Hampshire Rules of Professional Conduct in

2. On September 24,2009, Rkhard Mavme filed a grievance with the ADO, claming that p. 4 Page 40f8

some motions, exemplified by the October 26,2009, Ex Parte Motion to Clarify,

14. As a result of Ms. Witkus' undetached zealousness in representing her client, she filed

point where she did not exercise good professional judgment.

13. Ms. Witkus acknowledges becoming embroiled in the litigation of the Maville case to a

Ex Parte pleadings and attachments to the other party."

parties" and that"the Court may wait to issue a ruling until it has proof of delivery of all

12. The court also noted that"delivery of Ex Parte pleadings has been an issue for both

2.9 ... will be taken on Ex Parte requests which do not conform to Family Division Rule for its proper purpose, which is to address emergencies. In the future, no action The Court is concerned that in this case, the Ex Parte procedure has not been used

apparent," and admonished both parties stating:

October 27, 2009. In the Order, the Court observed that"[there] is no emergency

11. In response to the Motion, the Court (Luneau, MM.) issued an Order dated

E. For such other and further relief as may be just.

brother. D. Clarify whether"all tools" means the tool kit she received from her

C. Clarify that"all tools" does not include the tools he left.

B. Remove the ski boots from the order.

already received the LCD panels. A. Clarify that the 22 inch LCD panel is not Logan's TV and that Mr. Maville

10. The prayer for relief requested the following:

Maville.

9. The Motion accurately stated that the pictures and attachments were not provided to Mr.

procedures for filing motions because of the emergency nature of her requests. p. 5 Page 5 ofS

The purpose of the Court's disciplinary process is"to protect the public, maintain public

Stipulation As To Facts, Rule Violations, and Sanction pp. 4-5.

there is necessarily clear and convincing evidence of a violation of Rule S.4(a).

19. Because there is clear and convincing evidence that Ms. Witkus violated Rule 3.4( c),

of N.H. R. Prof. Conduct 3.4(c).

IS. Ms. Witkus' knowing failure to comply with a court order or rule constitutes a violation

hann or injury to her client, the children or the marital estate.

motion when there were no emergency circumstances that would result in ineparable

17. Ms. Witkus breached her duty to obey the rules of the tribunal when she filed an ex parte

45S:16 and 461-A:9.

specifically, New Hampshire Family Court Rule 2.9. See also New Hampshire R.S.A.

16. Ms. Witkus owed Mr. Maville and his counsel the duty to obey the rules of the tribunal;

of a tribunal.

15. Rule 3.4(c) states that a lawyer shall not knowingly disobey an obligation under the rules

Rule 3.4(c): Fairness to Opposing Party and Counsel

violations by clear and convincing evidence:

Rules of Professional Conduct that were violated. The Stipulation establishes the following

The parties have stipulated, and the Committee accepts the Stipulation as to the N.H.

Stipulation As To Facts, Rule Violations, and Sanction, pp. 1-4.

suggesting a more pending urgency and harm than may have been present. p. 6 Page 60f8

requests which do not conform to Fatnily Division Rule 2.9 ... emergencies. In the future, no action will be taken on Ex Parte not been used for its proper purpose, which is to address The Court is concerned that in this case, the Ex Parte procedure has

and was an abuse of the legal process. The Court admonished both patiies, stating:

Under the third prong of the analysis, Ms. Witkus's conduct caused unnecessary litigation

circumstances, finds that Ms. Witkus's mental state was one of negligence.

Under the second prong of the analysis, the Committee, in reviewing the totality of the

an officer ofthe court, Ms. Witkus must always operate within the bounds of the law.

Under the first prong of the analysis, Ms. Witkus violated the duty to the legal system. As

sanction. Id.

the existence of any aggravating or mitigating factors and whether they affect the baseline

baseline sanction is determined, the Court then looks to the fourth and final pati of the analysis,

misconduct and determining a baseline sanction. Conner's Case, 158 N.H. at 303. Once the

The first three patis of the analysis create the fratnework for characterizing the

613,621 (2007)); Standards § 3.0.

and (d) the existence of aggravating or mitigating factors." Id. (quoting Douglas' Case, 155 N.H.

the lawyer's mental state; ( c) the potential or actual injury caused by the lawyer's misconduct,

forth a four part analysis for courts to consider in imposing sanctions:"(a) the duty violated; (b)

("Standards''), it looks to them for guidance. Conner's Case, 158 N.H. at 303. The Standards set

the Supreme Court has not adopted the ABA Standards for Imposing Lawyer Sanctions

account the severity of the misconduct. See Coffey's Case, 152 N.H. 503, 513 (2005). Although

in the future." E.g., Conner's Case, 158 N.H. 299, 303 (2009). Any sanction should take into

confidence in the bar, preserve the integrity of the legal profession, and prevent similar conduct p. 7 Page 7 of8 Permit Waiver of Hearings Committee Process inadvertently states that Standard 6.21 corresponds to a Reprimand. I The most analogous sanction in New Hampshire is a Public Censure. DiSciplinary Counsel's Assented to Motion to

as to the existence of any docketed complaint, and the Committee shall schedule a hearing for

expedited basis and Disciplinary Counsel shall be alerted. The ADO shall notify the Committee

the Respondent during the period of the stayed suspension shall be processed by the ADO on an

meetings shall continue through the entire stayed suspension. Any future grievance filed against

Hodgman or other qualified mentor approved by Disciplinary Counsel. The monthly mentorship

extended through the period stated above. The mentorship shall be provided by attorney Jessica

through December 31, 2013, with a further provision that the mentorship requirements be

In addition, the Committee extends the stayed the stayed suspension in the Tamoney case

For all the reasons stated above, the Committee hereby imposes a Public Censure.

found they did not wan-ant a departure from the baseline sanction under the circumstances.

The Committee considered all of the relevant aggravating and mitigating factors, and

Tamoney case.

acceptance of responsibility for the misconduct, and the extension of other penalties in the

disclosure to Disciplinary Counsel, a cooperative attitude toward these proceedings, remorse,

law. Mitigating factors include the absence of a dishonest or selfish motive, full and free

aggravating factors are a prior discipline history, and substantial experience in the practice of

Under the fourth prong of the analysis, the Committee agrees with the parties that the

circumstances ofthis case.

The Committee finds that ABA Standard 6.23: Reprimand l is most appropriate under the p. 8 Page 8 of8

File John C. Kissinger, Jr., Esquire Julie A. Introcaso, Disciplinary Counsel Distribution:

the investigation and prosecution of this matter.

The Committee adopts the parties Stipulation that the Respondent shall pay all costs of

Agreement to Extend not specifically modified by this Order shall remain in full force and effect.

Ms. Witkus to show cause why the suspension should not be imposed. All other portions of the by the DC, attorney, and her attorney, stated as is quoted below:

p. 9 4. In the Waiver of Hearings Committee Process the stipulation as to facts

erred in it's application of the factors in this case.

counsel believes the committee was not changing the stipulated facts but simply

under the due process clause of both state and federal constitutions. This

practices of the Attorney Discipline system in the state protects all parties' rights

to this attorney whether the interplay of stipulated facts and the process and

:l The committee's decision is unclear in light of the stipulations. It is unclear

standards and a reprimand in New Hampshire.

and in a foot note explains the difference between reprimand in the ABA

November 9, 2011, the committee finds that a censure is the appropriate remedy,

reach it's conclusion. At paragraph the top of page 7 of it's Order dated

2. The committee has used the ABA standards for Attorney Discipline to

matter.

themselves out and therefore the sanction was the baseline sanction for this

analysis stated that the mitigating and aggravating factors essentially evened

1. The committee varied it's order from the one stipulated to, and in it's

Now comes Lanea A Witkus and moves and states as follows:

factors that are set out in 6.22 of standards of the ABA which is called an

6. However, paragraph 29 from the Waiver document noted above uses the

state,

reprimand under the ABA standards which does correspond to a censure in this

5. The committee took the word reprimand in paragraph 29 to mean a

sanction of reprimand.

negligent act that causes little or no actual or potential injury, warranting a baseline

29. The Parties agree that Ms. Witkus' misconduct is most closely associated with a

proceeding.

causes little or no actual or potential interference with a legal

rule, and causes little or no actual or potential injury to a party, or

isolated instance of negligence in complying with a court order or

6.22 Admonition is generally appropriate when a lawyer engages in an

interference with a legal proceeding.

injury to a client or other party, or causes interference or potential

with a court order or rule, and causes injury or potential

6.21 that Reprimand' is generally appropriate when a lawyer negligently fails to comply

guidance. Section 6.2, Abuse ofthe Legal Process, suggests:

28. In determining a baseline sanction here, the Standards offer material immediately. The ABA standards refer to the vulnerability of the victim when

p. 11 13. There is no hidden action and the motion's appropriateness can be dealt with

sanctions.

hearing at a later time, or in appropriate cases the court itself can and does issue

of an ex-parte motion the judge has the ability to simply deny it, schedule it for

12. The matter here is the proper or improper use of the legal process. In the matter

motion.

addressed in the ex-parte, it would be brought up in an inevitable contempt

case as can be seen by the multitude of motions, if the matter were not

11. The judge did admonish both parties, but she also clarified the order. In this

rules violation with little or no actual injury.

10. A private reprimand is the most appropriate sanction in the case of a technical

proportion to the result.

to report a possible violation of the rules if the effect of such a report will be out of

a lack of reporting as to violations of standards. In general, people are less likely

9. It is noted in the preface to the ABA standards that there is a problem with

attorneys who review the matter.

proper sanction for a technical rules violation is particularly important for other

8. The fact that there was little or no injury is stipulated to. The matter of the

Stipulation at Paragraph 29 referred correctly to a New Hampshire reprimand.

Hampshire. That is the proper sanction given the facts in this case. The

7. As the committee noted, an admonition is designated a reprimand in New p. 12 603-863-6297 Newport, NH 03773 PO Box 5 Witku Law Office, PLLC Lane~~~7~MG5

mail postage prepaid has also been sent to Richard Maville. Counsel,4 Chenell Drive, Suite 102,Concord, New Hampshire 03301and by regular being delivered on this!yday of November 2011, to Julie A. Introcaso, Disiplinary I, Lanea A. Witkus, cen;~./Iat a copy aforesaid"Motion to Reconsider and Clarify" is

Reprimand is the appropriate remedy, not censure.

reconsider it's decision and find that under these circumstances a New Hampshire

Wherefore Attorney Witkus respectfully requests that committee clarify and or

mandatory petlreview.

in a practical manner. I am an advocate for peer review and this is essentially

best use of the attorney discipline process is to be proactive and address matters

year. This motion does not address that change as this counsel believes that the

and the Tamony suspension for an additional year in excess of the stipulated

New Hampshire Censure. It is noted that the committee extended the mentoring

14. This motion is directed only to the change of a New Hampshire Reprimand for a

the opposing party.

measuring injury. In this case the court has many weapons to protect itself, or p. 13 File Hugh M. Tamoney Richard Maville Lanea A. Witkus, Esqnire Distribution:

Reconsider is denied. overlooked or misapprehended, and due to Ms. Witkus' prior disciplinary record, the Motion to In light of the fact that Respondent's request cited no points oflaw or fact that were

recused. Pizzimenti, Vice Chair, was absent. Margaret H. Nelson, Chair and Thomas P. Connair were Daley, Richard H. Darling, James R. Martin, Jaye L. Rancourt, and Richard D. Sager. Benette matter, Susan R. Chollet, David N. Cole, Thomas P. Connair, Alan J. Cronheim, Gerald A. November 25, 2011. Members present included Toni M. Gray, Vice Chair and Chair of this Motion to Reconsider and to Clarify filed on November 18, 2011, and Mr. Maville's letter dated On December 13, 2011, the Professional Conduct Committee deliberated Respondent's

Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole Richard D. Sager Susan R Chollet> Jaye L. Rancourt Toni M. Gray, > Vice Chair 603-224-5828. Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Richard H. Darling' Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Gerald A Daley'

603-863-5287 Newport, New Hampshire 03773 Post Office Box 5 Lanea A. Witkus NUMBER COUNSEL REPRESENTING SELF, PROVIDE TELEPHONE TELEPHONE NUMBER OF APPEALING PARTY'S 3A. NAME AND ADDRESS OF APPEALING PARTY. IF 3B. NAME, FIRM NAME, ADDRESS AND

Professional Conduct Committee 2. COURT APPEALED FROM AND NAME OF JUDGE(S) WHO ISSUED DECISION(S)

Witkus, lanea A. advs. Hugh Tamoney case# 06-029 Witkus, I.onea A. advs. Richard Moville case# 09-049 1. COMPLETE CASE TITLE AND CASE NUMBERS IN TRIAL COURT

or from a decree of legal separation should be filed on a Rule 7 Notice of Mandatory Appeal form. (9) a domestic relations matter filed under RSA chapters 457 to 461-A, except that an appeal from a final divorce decree landlordltenant action or a possessory action filed under RSA chapter 540; (8) an order denying a motion to intervene; or of sentence proceeding; (5) a parole revocation proceeding; (6) a probation revocation proceeding; or (7) a collateral challenge to a conviction or sentence; (3) a sentence modification or suspension proceeding; (4) an imposition court, probate court or family division court in (1) a post-conviction review proceeding; (2) a proceeding involving the This form should be used only for an appeal from a final decision on the merits issued by a superior court, district

THE STATE OF NEW HAMPSHIRE p. 15 NHJ8-2297-SUPREME (09/01/2008) Page 2 of 5

January 4,2012 TRIAl. MOTION, IF ANY. DATE OF CLERK'S NOTICE OF DECI<;'ON ON POST­ November 9, 2011 SENTENCING. AND BAIL STATUS 6. DATE OF CLERK'S NOTICE OF DECISION OR 7. CRIMINAL CASES: DEFENDANT'S SENTENCE

Ju~iter, Florida 33458 603-224-5828 18598 Lakeside Garden Dr. Concord, New Ham~shire 03301 Hugh Tamoney 4 Chenell Drive Suite #102

Richard Mavile

RULE 7 NOTICE OF DISCRETIONARY APPEAL CaseName: ________________________________________________________________ __ p. 16 NHJB-2297-SUPREME (09101/2008) Page 3 of 5

RULE 7 NOTICE OF DISCRETIONARY APPEAL CaseName: ________________________________________________________________ ___ p. 17 NHJB·2297 ·SUPREME (09/0112008) Page 4 of5

Date':<A"'ppl-e-a:'-lin-g--:p:;-a-'rt:'-'yLo'--r :;:coLu'O'n-s--:ffJ:-IL-------------------acco&-3, ~~/2e 26(2). dJ.t~~ e parties to the case and were filed with the clerk of the court from which the appeal is taken in I hereby certify that on or before the date below, copies of this notice of appeal were served on all

by a properly filed pleading. 0 f2. C~ ~ 14;1\..e.~)" c p...vW', (JJ.;,4 been properly preserved for appellate review by a contemporaneous objection or, where appropriate, I hereby certify that every issue specifically raised has been presented to the cOUli below and has

cover and consecutively numbered pages. submit must be included in a separately bound Appendix, which must have a table of contents on the Do not attach any other documents to this notice of appeal. Any other documents you wish to

post-trial motion. court order deciding a timely post-trial motion; and (4) the clerk's notice of any order deciding a timely decision or order from which you are appealing; (2) the clerk's notice of the decision below; (3) any Attach to this notice of appeal the following documents in order: (1) a copy of the trial court

to be insufficient as a matter of law. '. for appeal is legal sufficiency of evidence include a succinct statement of why the evidence is alleged explain why the acceptance criteria listed above support acceptance of that issue; and (c) if a ground Separately number each issue you are appealing and for each issue: (a) state the issue; (b)

discretion. 3. The decision below is erroneous, illegal, unreasonable or was an unsustainable exercise of 2. The decision below conflicts with a statute or with prior decisions of this court. conflicting decisions in New Hampshire courts. interest, an important state or federal constitutional matter, or an issue on which there are 1. The case raises a question of first impression, a novel question of law, an issue of broad public

character of the reasons that will be considered. acceptance criteria, while neither controlling nor fully describing the court's discretion, indicate the whether to accept the case, or some issues in the case, for appellate review. The following The New Hampshire Supreme Court reviews each discretionary notice of appeal and decides

14. ISSUES ON APPEAL (Limit eight pages double-spaced; please attach.)

13. NATURE OF CASE AND RESULT (Limit two pages double-spaced; please attach.)

RULE 7 NOTICE OF DISCRETIONARY APPEAL Case Name: __________________________________________________________________ _ p. 18 NHJB-2297-SUPREME (0910112008) Page 5 of5

be refunded. The transcript will not be released to the parties until the final cost of the transcript is paid in full. additional amount if the final cost of the transcript exceeds the deposit. Any amount paid as a deposit in excess of the final cost will NOTE: The deposit is an estimate of the transcript cost. After the transcript has been completed, you may be required to pay an

Hearing or trial of more than 16 day $ gOO/day Hearing or trial up to 16 day $450 Hearing or trial of one hour or less $175 !-ength of Proceeding Deposit Amount

2011 $175 October 18, Oral argument Less than 1 hr n/a PCC None

Parties will be provided with an electronic copy of the transcript in PDF format. the official record of the transcribed proceedings. A paper copy of the transcript will be prepared for the court. 4. The transcriber will produce a digitally-signed electronic version of the transcript for the Supreme Court, which will be deadline may result in the dismissal of your appeal. notifying you of the deadline for paying the deposit amount to the court transcriber. Failure to pay the deposit by the portions listed. Do not send the deposit to the Supreme Court. You will receive an order from the Supreme Court 3. Determine the amount of deposit required for each portion of the proceedings and the total deposit required for all motion to suppress hearing, jury charge, etc., and provide information requested. 2. List each portion of the proceedings that must be transcribed for appeal, e.g., entire trial (see Supreme Court 15(3», 1. If a transcript is necessary for your appeal, you must complete this form. INSTRUCTIONS: TRANSCRIPT ORDER FORM

RULE 7 NOTICE OF DISCRETIONARY APPEAL Case Name: ________________________________________________________________________ __ p. 19 Rule 37 16 (g) provides for a discretionary appeal.

believes a Public Censure is harmful to the bar and the public in this situatio~. open, and disagrees with the change of a Private Reprimand to a Public Censure. She case. Appellant disagrees with the extension of time for the Tamoney case to remain sanction, either as a part of the action, or as an amendment to the existing Tamoney to continue with it pending this appeal if it is granted, and has no objection to that The appellant has begun the mentoring component of the decision, and intendr .

and Mr. Maville. . (J(!.)J i lOa" the reconsideration and stated it considered a letter from both Mr. Tamoney upon facts, and providing further facts as to the issue of harm. The Committee Imposing Lawyer Sanctions, which the Committee had misapplied given the agreed a motion to reconsider based on the misinterpretation of the ABA Standards for Tamoney and changing the private reprimand to a Public Censure. The appellant filed that deviated from the agreed upon sanction, extending the probationary period in requested an oral argument. That occurred on October 18, 2011. They made an order the Maville case. The documents in the appendix were filed with the PCC which in effect for one year beyond the current probationary period, and a private reprimand in technical rules violation with a mentoring component in the prior Tamoney case, to be months, in part due to changes in staff, and then filed and the appellant agreed to a found the complaint to be unsubstantiated. The DC had the case under review for Maville. The complaint was forwarded to the Disciplinary Counsel, who investigated and This matter arises as a result of a Professional Conduct Complaint filed by Mr.

Nature of the case type of discipline is publicized it does not increase the public's faith in the system and it

p. 20 conflict; he just wanted to delay the hearing. He received no consequences. When this

appellant rarely does. He told the Superior Court he didn't really think there was a

raised the issue of conflict that was so egregious that the appellant objected, as the

is the case. After the Tamoney case was reported publicly an opposing pro se party

a ex-parte motion was not granted will feel they have been wronged, whether or not that

reported publicly it will result in more complaints to the PCC since anyone against whom

Censure if they request an ex-parte order and that order is denied. If this discipline is

canceled each other out. That means that any lawyer is susceptible to a Public

arrived at that conclusion without looking at mitigating and aggravating factors which

appellant can ascertain, and an issue of broad public interest. The PCC stated that it

Criteria for Discretionary Appeal: This case is one of first impression, as best this

terms with their New Hampshire meanings)

to have canceled each other out, the Standards direct a Private Reprimand (using the

no harm actual or potential harm and 4. aggravating and mitigating factors were found

was filed the situation was not sufficiently urgent. 2. a negligent mental state, 3. little or

technical violation of a court procedural rule of failing to use good judgment an ex-parte

mitigating factors, when applied to the following stipulated facts in this case: 1. was a

violation, 2. mental state, 3. the potential or actual injury and 4.aggravating and

Public Censure; as the Standards set out the following analysis: 1.the nature of the

ABA Standards for Imposing Lawyer Sanctions, hereafter Standards, when it ordered a

Question one: Whether the PCC made an error of law and incorrectly interpreted the

Appeal questions even the most outrageous behavior of pro se litigants.

p. 21 the current court system to protect the rights of the opposing litigants and attorneys from

sides. This was noted in the Motion to Reconsider. There is no analogous process in

left out the fact listed in the Stipulation that the Master directed the admonition to both

Criteria for Discretionary Appeal: The language quoted by the pee in it's order

the same or more abusive manner is not subject to such consequences.

may advise against potentially meritorious claims, when a pro se litigant, who acted in

unacceptable disadvantage to clients of attorneys who, with an abundance of caution,

attorneys are subjected to a separate and additional sanction thereby creating an

B) it violates the equal protection clause of the state and federal constitutions if

which is in the best position to decide how to address the matter if there is a problem.

judicial system and constitutes an unwarranted intrusion in to the ability of trial court

A) to have the pee second guess the Court undermines the public's confidence in the

handled by the court as:

case was the filing of an ex-parte motion, because this type of rule violation should be

misconduct when the action complained of is fully known to the court, which in this

Question three Whether as a matter of public policy pee erred in finding professional

makes the entire judicial system in New Hampshire look foolish.

lack of consequences for a false pleading by the complainant, the disparate treatment

see the severe sanction the appellant received from the pee for negligence and the

court system. The public does not distinguish between the various entities. When they

these cases (for various reasons there are many such people), have lost respect for the

or the other participants in the court system. People who are knowledgeable about considered in their decision. There are serious credibility questions relating to both

p. 22 The PCC refers to Mr. Mavilles's letter and Mr. Tamoney's letter as being

operated LLC with undisclosed bank accounts for two years.

against hypothecating, (final decree) and recently in contempt for hiding the fact he

has been found in contempt for cashing in stocks and a 401-K in violation of the orders

occurred. he made a face at me during the final hearing (noted in the final decree), he

letting hirn speak to the children when the phone records showed the phone calls

issued orders as follows: He was not credible when he testified that Ms. Maville was not

Mr. Maville that the PCC was not informed of. The Court in the Maville matter has

The Disciplinary Counsel, hereafter DC, had information about the credibility of

the system. So are attorneys.

unrepresented are outraged by the extent that the court allows pro se litigants to abuse

well as our calling. The public who come in contact with the system, represented and

also is attuned to the needs of the public, who we represent as they are our living as

Supreme Court has to consider the public's interest; that is right and proper. The bar

public in a way has helped to create the disconnect." I hope that is not so. The

judges have turned their countenances away from lawyers and towards the general

have forgotten that their natural constituency is the Bar -we lawyers; and I believe that

punitive rather than rehabilitative. The report stated"I believe that Judges in general

between the bar and the court. One of the reasons cited was that the PCC system is

web site. The"Minority report status of the bar 2007" pointed out the disconnect

appellant read the"Report on the Status of the Bar 2007" because it was on this court's

Much of the policy considerations noted in the previous question apply here. The defend herself at a hearing, they found she was too defensive and increased the

p. 23 DC and the appellant agreed to were correct. However, after forcing the appellant to

stipulated findings in the Tamoney case, a hearings panel then found that the facts the

errors. The procedural rules make it impossible to settle a case. The PCC rejected the

that the mentoring arrangement is the way the PCC should be reacting to attorney

Maville case for a variety of reasons, one being to"buy peace," another being a belief

mentoring arrangement under the Tamoney case and a Private Reprimand under the

Criteria for Discretionary Appeal: In the present action, the appellant agreed to a

negative light.

but for the prior cases and the predisposition of the PCC to view the appellant in a

leading to this technical rules violation which it is unlikely would ever had been brought

could not exercise their good independent judgment but had to find some violation,

complainants' allegations, yet the several DC's did not then dismiss the case as they

the several Disciplinary counsel's investigations did not substantiate any of the

bring a case: and Appellant has been personally affected by the bias of this process as

role of the DC's client in making the ultimate client controlled decision: whether or not to

DC cannot act as an independent prosecutor and this process places the PCC in the

dismissal of a complaint when such dismissal is recommended by the DC, such that the

evidence to go on, has the ability, and in practice has often, refused to accept a

and federal constitutional protections to the extent that the PCC, which has no factual

Question four Do the procedural rules under which the PCC operates, violate the state

next question.

gentlemen. There is no place in the process to bring the credibility to the PCC. See not frivolous as the Attorney is an advocate and it is improper for the Attorney to

p. 24 Criteria for Discretionary Appeal: The attorney has a duty to bring a motion if it is

as such is under the control of the client under PCC rule 1, 2 (A).

present" whereas the urgency and harm are questions of substance not procedure and

Ex-Parte Motion to Clarify, suggesting more pending urgency than may have been

factor, specifically"the attorney filed some motions exemplified by the October 26, 2009

as they are not clearly frivolous, In this instance the PCC decision was based on a

substitute their judgment for that of a court, and are obligated to file pleadings as long

Attorney with that of the client in that an Attorney under rule 1.2 (a) is not allowed to

Question six Did the PCC commit a plain error of law by confusing the role of the

'Criteria for Discretionary Appeal See Supreme Court Rule 16 A.

based on an assertion that no valid obligation exists";

. knowingly disobey an obligation under the rules of a tribunal except for an open refusal

3.4C with a negligent mental state when the 3.4 c says"A lawyer shall not: (c)

Question five Whether the PCC erred as a matter of law by findings a violation of Rule

case, a technical rules violation.

transitional period so there were several parties reviewing it), the DC came up with a

oral argument. So having no case before it the DC, (and this case was open during a

appellant. Mr. Maville's allegations were not substantiated. That was made clear at the

functions separate require that there be a specific finding of bias which affected the

The cases that discuss the need to keep the prosecutorial and adjudicatory

factual determinations when it has no trustworthy evidence to go on.

sanction. This appellant never wanted to fight with the PCC. The PCC seems to make p. 25 Criteria for Discretionary Appeal: Same as question n"Bfil. f", 1/ e ,

misconduct.

professional judgment", as an error in judgment is not grounds for professional

misconduct where the finding was that the appellant"failed to exercise good

Question seven Whether the PCC made a plain error of law by finding professional

difference.

does have problems differentiating attorneys from clients, but the PCC should know the

It is the party and not the attorney who is sanctioned if a violation occurs. The public

additional motions, and having the court address these issues saved court time overall.

addressed by the court. In this unusual case, any lack of clarity in court orders caused

the Master admonished both sides about ex-parte orders, the relief sought was

comment. The reconsideration informed the PCC, correctly, that in the same order that

pleadings brought by both sides. Prior orders had been granted or denied without

The facts noted in the stipulation showed that there had been prior ex-parte

decisions reached during the representation."

social and economic considerations, and the scope of representation and earlier

including but not limited to, the particular fact pattern, type of representation, a client's

always carefully consider all client requests or decisions, in light of all relevant factors,

affected." The Ethic's committee's comments to that section state."A lawyer must

expense to be incurred, and the concern for third persons who might be adversely

"Conversely, lawyers usually defer to the client regarding such questions as to the

substitute their opinion for that of the Court. The ABA comments specifically state that i"

p. 26 File Julie A. Introcaso, Esq. Lanea A. Witkus, Esq. Professional Conduct Committee, 06-029, 09-049 Distribution:.

Dalianis, C.J., and Hicks, Conboy and Lynn, JJ., concurred.

accepted, this case would have been accepted and scheduled for briefing. any justice who reviewed this case believed the appeal should have been This matter was considered by each justice whose name appears below. If

three justices participating. appeal, however, is declined except by unanimous vote of the court with at least discretion to decline an appeal from the Professional Conduct Committee. No Under Supreme Court Rules 10 and 37(16), the supreme court has

10(1). Appeal from the Professional Conduct Committee is declined. See Rule

court on March 7, 2012, issued the following order: In Case No. LD-2012-0003, Appeal of Lanea A. Witkus, the