LD-2003-010, LANE'S CASE

from 1978 until 2001. bar of New Hampshire since 1975, and practiced at the firm of Lane & Bentley The record reflects the following facts. Lane has been a member of the

Rules of Professional Conduct. We deny the petition. clear and convincing evidence that Lane violated any of the New Hampshire and written report. The referee found that the committee failed to prove by 8.4(c). We referred the petition to a Judicial Referee (Dickson, J.) f or a hearing of law for violating New Hampshire Professional Rules of Conduct 1.9(c)(1) and respondent, Kendall W. Lane, receive a six - month suspension from the practice Professional Conduct (committee) filed a pet ition recommending that the GALWAY, J. On December 15, 2003, the Supreme Court Committee on

H. Miller on the brief), for the respondent. and orally), and Sheehan, Phinney, Bass & Green, P.A., of Manchester (Robert Hinckley, Allen & Snyder LLP, of Concord (Stephe n E. Weyl on the brief

orally), for the committee on professional conduct. Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and

No. LD - 2003 - 010 Original

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Jane Bennett became very ill and the parties agreed, out of necessity, to pla ce The guardianship proceedings were terminated when, in March 1996,

petition. their mother. Dick Bennett hired attorney David Wolowitz to contest the Dick Bennett in probate court seeking the appointm ent of a new guardian for retained attorney Silas Little who, in January 1996, brought a petition against mother’s placement and Dick Bennett’s conflicting statements, the sisters would provide for thei r mother for eighteen years. Concerned about their fact that only a few months earlier he had assured his sisters that trust assets place her in a home in Manchester, citing a potential lack of funds, despite the home in Keene, where she had lived her entire life. Dick Bennett wanted to Molly and Ann Kunz Bennett contended that she should be placed in a nursing of 1995, it became apparent that she had to be placed in a nursing home. Jane Bennett’s mental condition continued to deteriorate and, by the end

for appr oximately eighteen years. one months, and that the total value of the fund would support Jane Bennett accounting stated that the trust balance would last for approximately seventy - Keene and a cottage in Swanzey, which were worth a combined $440,000. The trust then had a balance of $308,76 p. 2 2, not including Jane Bennett’s home in decisions. Dick Bennett also produced an analysis of funds, indicating that the that Jane Bennett was no longer mentally capable of making her own financial At the second meeting, Dick Bennett produced a physician’s letter indicating Bennett, and her attorney, and all of them met twice in the summer of 1995. requested to meet with their brother, Dick Bennett, their mother, Jane bec ame concerned about their mother’s health and financial situation. They romantically involved with Molly. In 1995, Molly and Ann Kunz Bennett Home, an assisted living facility in Keene. Around the same time, Lane became June 1994, Jane Bennett moved from her residence in Keene to the Woodard trustees. She also provided Dick Bennett with a d urable power of attorney. In which she executed in June 1993, appointing herself and Dick Bennett as co - Jane Bennett retained an attorney to prepare a will and trust agreement,

executor. Probate Court in Febru ary 1994, and Dick Bennett was discharged as of $0 because of expenditures. The estate was allowed by the Cheshire County was filed in November 199 p. 3 3, showing a total value of $5,497, but a net balance Benne tt served as the executor of the estate. The final accounting of the estate Bennett). Lane & Bentley represented the estate of Robert Bennett. Dick Kunz Bennett and Jane B. Brown, and their son, Lafell D. Bennett (Dick Bennett, their three daughters, Molly Weise (now Molly Bennett Lane), Ann in an automobile accident. Robert Bennett was survived by his wife, Jane On September p. 2 25, 1992, Robert Bennett, a client of Lane & Bentley, died 3

Mutual Life Insurance Company (John Hancock). She also found a cancelled Keene, an invoice for a life insurance policy underwr itten by John Hancock Kunz Bennett, now Lane’s sister - in - law, discovered, in her mother’s home in In July 1996, Lane married Molly. On or around August 1, 1996, Ann

Bennett denied its existence. not reference a life insurance policy. When questione d about the policy, Dick Dick Bennett on August p. 3 30, 1993, that Lane turned over to Attorney Little, did $200,000 because his death had been accidental. The accounting prepared by life insurance policy for $100,000, but that the final payment could be their father died, Dick Bennett had told her that their father had possessed a the accounting he provided in May 1996. Jane Brown remembered that after statements allegedly made by Dick Bennett shortly after their father died and The sisters were also concerned about an apparent discrepancy between

that accounting. contacting Dick Bennett or Attorney Wolowitz, gave Attorney Little a copy of showed that there was a value of $121,000 remaining. Lane, without “Merchants Insurance,” totaling approximately $126,000. The accounting also insurance proceeds from two policies, “National Grange Mutual” and on August 20, 199 p. 3 3, and submitted to Lane & Bentley. The accounting showed accounting that had be en prepared by Dick Bennett, as executor of the estate, file concerning Robert Bennett’s estate. In the file, Lane discovered an to what Attorney Wolowitz might be referring. Lane obtained, from storage, the Lane became aware of this letter through Attorney Little, who inquired as

coopera te. Bentley should have included the $121,000 in the estate, his client would death. Attorney Wolowitz suggested that if Attorney Little thought that Lane & approximately $121,000 in accident insurance proceeds upon Robert Bennett’s reported value of the estate was $0, the Jane Bennett Trust had received response to Attorney Little’s letter, Attorney Wolowitz wrote that, although the court that the estate had a total value of $5,497 and a net value of $0. In amount of $121,000, which appeared to conflict with the report to the probate Dick Bennett listed a contribution from the estate of Robert Bennett in the accounting describing the source of Jane Bennett’s trust funds. On that page, accounting. One discrepancy relevant to this matter concerned a page of the Wolowitz, Dick Bennett's attorney, inquiring about discrepancies in the Attorney Little, representing the Bennett sisters, wrote to Attorney

suspicious and asked Attorney Little to investigate. almost $ p. 3 309,000 balanc e reported a half - year earlier. The sisters were April 30, 1996, the fund balance was merely $65,917, compared with the sisters an accounting of the trust assets. The accounting indicated that, as of her in a Keene nursing home. Additionally, Dick Bennett agreed to provide his p. 4 4

mother’s trust. That litigation was settled in 2001. Little initiated litigation seeking to remove Dick Bennett as trustee of his these materials over to Attorney Little. Several months later, in 1997, Attorney Without consulting Dick Bennett or Attorney Wolowitz, Lane tur ned

and Dick Bennett. indicating that the check had been deposited in a joint account of Jane Bennett check had been deposited, but also gave him a copy of the deposit slip days later, the customer service representative not only told Lane where the if the stamp on the back indicated where the check had been deposited. A few Hampshire Bank branch in Keene, and asked a customer service representative to the surviving spouse. L ane took the cancelled check to the First New Bennett’s death without a designated beneficiary, the proceeds were to be paid a “facility of payment” form which provided that, in the event of Robert First New Hampshire Bank in Hooksett. Additionally, John Hancock sent Lane A stamp on the back of the check indicated that it had been deposited at the a cancelled check in the amount of $100,000 paid to the order of Jane Bennett. John Hancock sent the requested materials to Lane, including a copy of

if available, be sent to me at your earliest convenience. beneficiary claim form, together with a copy of the cancelled check, October 19, 1992. This letter is to request that a copy of the policy upon which I understand a claim was made on or about In reviewing some of his records, we l earned of the existence of this

deceased September 25, 1992. This firm represents the Estate of Robert A. Bennett . . . who

stating, in pertinent part: Hancock, on Lane & Bentley letterhead, requesting further information, tax reporting obligations. On August 30, 1996, Lane wrote a letter to John if the policy had a value of $200,000, it might have an impact upon the estate’s require a written request. During his testimony, Lane expressed concern that a letter advising him that any fur ther information relating to the claim would policy and that there was no named beneficiary on the policy. He later received advised that the policy had been in effect, that a claim had been made on the had been a p olicy in effect at the time of Robert Bennett’s death. He was Lane contacted John Hancock by telephone to discover whether there

referenced on the invoice. Molly, and asked Lane if he could obtain further information about the policy leavin g the country the next day, she turned these items over to Lane and less than two years before her father’s death. Because Ann Kunz Bennett was check showing payment of the premium for the policy through the end of 1990, p. 5 5

i.e., the version in effect in 1996 when the alleged violations occurred, contains The version of the Rule of Professional Conduct that applies to this case;

1.6 or Rule 3.3 would permit or require with respect to a client. (2) reveal information relating to the representation except as Rule

information has become generally known; or would permit or require with respect to a client, or when the disadvantage of the former client except as Rule 1.6 or Rule 3.3 (1) use information relating to the repres entation to the

matter shall not thereafter: whose present or former firm has formerly represented a client in a A lawyer who has formerly represented a client in a matter or

Rules of Profes sional Conduct contains a Rule 1.9(c) which states: inapplicable, version of the Rules of Professional Conduct. That version of the tribunals below have continually cited and applied the most recent, but We begin by noting that, throughout these proceedings, the parties and

(2002), cert. denied, p. 5 540 U. S. 815 (2003). whether the referee committed errors of law. Feld’s Case, 149 N.H. 19, 22 upon the evidence presented. Id. However, we review de novo to determine a reasonable person could reach the same conclusion as the referee based 132, 136 (2003). We review the referee’s factual findings to determine whe ther has occurred and, if so, the appropriate sanction. Shillen’s Case, 149 N.H. whether, on the facts found, a violation of the rules governing attorney conduct if supported by the record, but retain the ultimate authority to determine In professional conduct matters, we defer to the referee’s factual findings

the referee and should hold that Lane violated Rules 1.9(c)(1) and 8.4(c). evidence. The committee now argues that we should not accept the report of had failed to prove any professional misconduct by clear and convincing accountants and Ann Kunz Bennett, the referee concluded that the committee After reviewing the evidence and hearing testimony from Lane, two

representation of the estate. and 8.4(c) when he disclosed information to a third party relating to his that Lane violated his duty of loyalty to the estate defined by Rules 1.9(c)(1) We scheduled an evidentiary hearing before a referee. The committee argued recommended that he receive a six - month suspension from the practice of law. that Lane had violated the New Hampshire Rules of Professional Conduct and ethical transgressions by Lane. On December 1 p. 5 5, 2003, the committee found In September 2001, Attorney Wolowit z notified the committee of possible p. 6 6

value of $0. Attorney Wolowitz responded, stating: estate of Robert Bennett, in light of the fact that the estate had a reported net $121,000 contribution made to Jane Bennett’s trust fund purportedly from the As discussed above, Attorney Little questioned Attorney Wolowitz about a

1.9(b). Bentley. We will consider this charge under the applicable rule, former Rul e executor of the estate of Robert Bennett, had prepared for the firm of Lane & Attorney Little a copy of the accounting that Dick Bennett, in his role as violated Professional Rule of Conduct 1.9(c)(1) w hen, in June 199 p. 6 6, he gave committee had failed to prove, by clear and convincing evidence, that Lane The committee first argues that the referee erred in determining that the

merits of the case. convincing evidence or a preponderance of the ev idence. We now turn to the exception to Rule 1.9(c); and (2) whether that burden must be met by clear and inapplicability of Rule 1. p. 6 6(b) of the Rules of Professional Conduct as an addressing: (1) whic h party has the burden of proving the applicability or After oral arguments, we asked the parties to file supplemental briefs

the rules. the newer version was not in effect in 199 p. 6 6, we will apply the prior version of attorne y from using such information to the disadvantage of a client. Because the representation of a former client, while Rule 1.9(b) only prohibits an and (2) Rule 1.9(c) prohibits an attorney from revealing information relating to information to the disadvantage of his client if that use is required by Rule 3.3; (1) Rule 1.9(c)(1) provides an additional exception to the lawyer ’s use of There are two relevant differences between the old rule and the new rule:

generally known. with respect to a client or when the information has become disadvantage of the former cl ient except as Rule 1. p. 6 6 would permit (b) use information relating to the representation to the

. . . .

shall not thereafter: A lawyer who has formerly represented a person in a matter

1.9(b), which states: no section 1.9(c). Rather, the corresponding section for that period is Rule p. 7 7

if, in fact, we had had evidence that there was a two hundred had previously had with Dick Bennett. But, you know, if we had – policy, but if – other than their recollection of a conversation they was an additional two hundred thousand dollar life insurance It could have. I certainly had no information to indicate that there

former executor of the estate. Lane replied: life insurance policy, it could tend to prejudice Dick Bennett’s interests as Attorney Little showed that Dick Bennett had failed to account for a $200,000 Rule 1.9(b). Lane was asked whether, had the accounting turned over to during the hearing before the referee constituted an admission of a violation of The committee argues, however, that Lane’s a nswer to a question asked

in the probate filing. it is obvious that Lane & Bentley chose not to include these insurance proceeds document whether the two insurance policies were accident insurance policies, leaving an estate potentially worth $121,000. Thoug h it is not clear from the executor, reported two insurance policies valued at approximately $126,000, The document provided by Lane to Attorney Little shows that Dick Bennett, as Bentley chose not to include th is insurance in the filing of the probate estate. & Bentley was aware of the accident insurance proceeds and that Lane & We agree with this ruling. Attorney Wolowitz’s letter indicates that Lane

Robert Bennett. of Lane’s former client, [Dick Bennett] as executor of the Estate of substantiated the claims of, and thereby worked to the advantage obtained from the file of the Robert Bennett Estate . . . required by [Rule 1.9(b)]. In fact, the information that Lane rep resentation used to the disadvantage of the former client as Bennett Estate did not constitute information relating to the [T]he information that Lane obtained from the file of the Robert

The referee granted Lane’s requested ruling that:

Attorney Little that had been prepared by Dick Bennett. Attorney Little provided the letter to Lane who, in turn, provided a document to

course, cooperate. mishandled or should be further investigated, my client will, of Bennett’s estate. If it is your opinion that this matter was the determination no t to include the accident insurance in Mr. the firm of Lane and Bentley, prepared the probate filing and made result of the death of her husband. Her legal counsel at the time, Mrs. Bennett received the approximately $121,000.00 as a p. 8 8

Bentley letterhead, requesting information from Joh n Hancock stating, in obligations of the estate. On August 30, 1996, Lane wrote a letter, on Lane & unreported life insurance proceeds might have upon the tax reporting learned that the polic y was in effect, he was concerned about the impact these request for any further information. Lane testified at the hearing that, having Robert Bennett’s death and that benefits had been paid. It required a written John Hancock confirmed that the policy was in effect at the time of

to Robert Bennett’s death. that he did so expecting to learn that the life insurance policy had lapsed prior by telephone, he was doing so as a favor to Ann Kunz Bennett. He also stated insurance policy. Lane stated that, when he initially contacted John Hancock contacted John Hancock seeking information about the existence of a life cancelled check and invoice from John Hancock, Lane, at her request, . . . .” As discussed above, after Ann Kunz Bennett presented Lane with the in conduct involving dishonesty, fraud, deceit or misrepresentation p. 8 8.4(c), which provides that it is professional misconduct for a lawyer to “engage We next turn to the committee’s allegations that Lane violated Rule

that Lane violated Rule 1.9(b). conclude that the committee failed to prove, by clea r and convincing evidence, Lane’s statement constituted an admission of wrongful action. Thus, we documents to Attorney Little. We disagree with the committee’s argument that cancelled check to Lane. This occurred almost two months after Lane gave the however, until August 1996, when Ann Kunz Bennett delivered the invoice and interests. Concrete evidence of the life insurance policy was not discovered, then turning over the document could potentially prejudice Dick Bennett’s Lane stated that if he had possessed evidence of a life insurance polic y,

to a life insurance policy. insurance policy existed. Further, the accounting itself contained no reference pers ons’ memories of statements allegedly made by Dick Bennett, that a life the accounting over to Attorney Little, he had no evidence, aside from other information to the disadvantage of his former client. At the time Lane turned Rule 1.9(b) requires a demonstration that the attorney used the

any action in violation of Rule 1.9(b). disadvantage of the former client.” We disagree that Lane’s statement admits respondent’s defense that he did not seek to use information to the The committee argues that this statement is an admission that “demolishes the

impact. thousand dollar life insurance policy, it certainly cou ld have an p. 9 9

Lane’s erroneous belief was reasonable. negligent misrepresentation constitutes a violation of Rule 8.4(c) or whether Douglas’ Case, 147 N.H. a t 543. Accordingly, we need not determine whether estate. Erroneous belief does not constitute intentional misrepresentation. could support a finding that Lane erroneously believed that he represented the ev idence that Lane intended to mislead John Hancock. At most, the evidence Lane’s statement to John Hancock was false, the committee offers no other misrepresentation, nowhere mentioning the term “negligent.” Even assuming Here, the committee charged Lane only with intentional

prove a violation). intentional conduct; therefore, mere finding of negl igence is insufficient to Clark, 87 P.3d 827, 830 (Ariz. 2004) (violation of 8.4(c) requires knowing or the basis for a charge of misconduct under the literal terms of 8.4(c)) with In re Doughty, 832 A.2d 724, 735 (Del. 2 003) (negligent misrepresentation can form misrepresentation constitutes a violation of Rule 8.4(c). Compare In re (2002), we have not had an opportunity to address whether negligent misrepresentation violates Rule 8.4(c), see Douglas’ Case, 147 N.H. 538, 542 information in that capacity.” (Emphasis added.) Though intentio nal that Lane was then authorized to act as the estate’s attorney and was seeking misleading, in that it was intended to create a belief on the part of the recipient convincing evidence, its allegation that Lane ’s statement “was false and when Lane completed his audit, the committee has not proven, by clear and simply by conducting these periodic audits. Even if his representation ended We need no t determine whether Lane continued to represent the estate

to this litigation.” maintain current, but inactive representation of the Estate at all times relevant Although the estate was closed, the law firm of Lane & Bentley continued to representing to H ancock that his firm represents the Estate of Robert Bennett. granted Lane’s requested finding that he “committed no misconduct in unclaimed property lists for all of its estate clients.” The referee agreed and pointing to the fact that the firm conducts a “twice - yearly audit of the State’s estate was not closed and that Lane & Bentley still represented the estate, attorney and was seeking information in that capacity.” Lane argued that the on the part of the recipient that Lane was then authorized to act as the estate’s statement “was false and misleading, in that it was intended to create a belief The committee alleged that Lane violated Rule 8.4(c) because his

deceased September 25, 1 p. 9 992.” pertinent part: “This firm represents the Estate of Robert A. Bennett . . . who p. 10 10

this issue from other jurisdictions. Rule 1.6 as an exce ption to Rule 1.9, and there is little authority concerning which party has the burden of proving the applicability or inapplicability of representation . . . .” We have not heretofore been called upon to determine except for disclosures that are impliedly authorized in order to carry out the to the representation of a client unless the client consents after consultation, to Rule 1.9(b), which provides: “A lawyer shall not reveal information relating Lane argues that his actions were permitted by Rule 1.6(a), an exception

insurance policy, unless such use is pe rmitted by Rule 1.6. Attorney Little with evidence of the existence of the John Hancock life clear and convincing evidence that Lane violated Rule 1.9(b) when he provided Dick Bennett ’s disadvantage. We, thus, hold that that the committee proved by Bennett, and we agree with the committee that such information was used to Lane turned over to Attorney Little did not relate to his representation of Dick party argues that the information concerning the life insurance proceeds that argues that Lane used information to the disadvantage of his former cl ient. No been lying about the existence of a life insurance policy. Thus, the committee Such information indicated, among other things, that Dick Bennett may have dispute with her brother over the accounting of f unds in their mother’s trust. representing Lane’s wife, Molly Bennett Lane, who was engaged in an ongoing to his representation of his former client, Dick Bennett, over to the attorney The committee argues that Lane turned confidential information relating

then turned this information over to Attorney Little. the same time, Dick Bennett was denying the existence of such a policy. Lane had been deposited in a joint account of Dick Bennett and Jane Bennett. At Hampshire Bank, and received a copy of a deposit sl ip showing that the check point.” Nonetheless, he took the copy of the cancelled check to the First New no further action that the Estate of Robert Bennett needed to take at that insurance proceeds amoun ted to only $ p. 10 100,000, and not $200,000, “there was directly to Jane Bennett. Lane testified that, once he learned that the received a copy of a cancelled check showing that $100,000 had been paid life insurance proceeds were to be paid to the surviving spouse. Lane also payment” form which provided that, in the event of Robert Bennett’s d eath, the In response to his August 1996 letter, Lane received a “facility of

disadvantage of that client, unless such use is permitted by Rule 1.6. using information relating to the representation of a former client to the former Rule 1.9(b); as discussed above, Rule 1.9(b) prohibits an attorney from John Hancock life insurance policy. As before, we consider this charge under 1.9(c)(1) w hen he provided Attorney Little with evidence of the existence of the We next turn to the committee’s allegation that Lane violated Rule

Court; rather, he turned evidence over to a party adverse to his former client. Lane’s argument, he misses a key point. He did not disclose evidence to the on the estate and the Court.” (Emphasis added.) Even if we were to accept the lawyer wou ld become the executor’s co - conspirator in perpetuating a fraud disclose an executor’s fraudulent or other inappropriate conduct to the Court, Lane argues that “[w]ere the estate’s lawyer not impliedly authorized to

Rule 1.9(b). prepo nderance of the evidence the applicability of Rule 1.6 as an exception to confidentiality. Accordingly, we hold that Lane was required to prove by a avoid discipline where there is justification for breaching the seal of assuring the integrity of attorneys, and the individual right of a respondent to 757(b) reflects the appropriate balance between the public’s interest in 1.6. The allocation of the burden of proof expressed by Maryland Rule 16 disclosure of such communications is justified by one of the exceptions to Rule nor unfair to place the bur den of proof on Lane to show that his unauthorized Given the importance of the interest at stake, it is neither unreasonable

irrevocable act.” N.H. R. Prof. Conduct 1.6 N.H. cmt. (2005). assistance.” Id. Thus, “[t]he disclosure of client confidences is an extreme and to proper representation . . . but also encourage[ ] people to seek early l egal inherent in Rule 1.6 “not only facilitate[ ] the full development of facts essential embarrassing or legally damaging subject matter.” Id. The protections encouraged to communicate fully and frankly with the attorney even as to See N.H. R. Prof. Conduct 1.6 ABA cmt. (2005). “The client is thereby communications, serves as the foundation of the attorney - client relationship. The interest prote cted by Rule 1.6, the confidentiality of attorney - client

advertisements). exception to a disciplinary rule requiring attorneys to officially file their (Mar. p. 11 11, 2005) (attorney had the burden to prove the applicability of an for Lawyer Discipline, 151 S.W.3d 602, 615 - 16 (Tex. App. 2004), review denied disciplinary rule forbidding prejudicial withdrawals); Rodgers v. Commission (attorney had the burden to prove the applicability of an exception to a Disciplinary Proc. Against Cohen, 82 P.3d 224, 230 - 31 (Wash. 2004) (en banc) entering into a prohibited business transaction with t he client); In re the burden to prove an exception to a professional misconduct charge for v. State Bar of California, 739 P.2d p. 12 1289, 1293 - 94 (Cal. 1987) (attorney had jurisdictions have reached the same result through case law. See, e.g., Beery matter by a preponderance of the evidence.” Md. R. 16 - 757(b). A few other matter of mitigation or attenuation has the burden of proving the defense or 16 - 7 57(b) provides that “[a] respondent who asserts an affirmative defense or a affirmative defense or justification in a disciplinary proceeding. Maryland Rule Maryland has, by rule, explicitly addressed the burden of proving an 12

not disclosed the existence of the policy, that the proceeds had been deposited Jane Bennett, that Dick Bennett knew about the policy, that Dick Bennett had and May 1996. Lane knew that there was a life insurance policy payable to sudden and mysterious diminution of the trust assets between August 1995 At the time of the disclosure, Lane knew that there had been a large,

the existence of the in surance policy. the estate or the trust. In addition, Lane knew that Dick Bennett had denied the account had been disclosed by Dick Bennett in any of the accountings for Jan e and Dick Bennett. Neither the existence of the policy nor the deposit into proceeds from the policy had been paid into a joint account in the names of policy by contacting John Hancock. Lane also learned that the $100,000 the existence of a John Hancock policy. Lane corroborated the existence of the Ann Kunz Bennett had discovered an invoice and a ca ncelled check indicating accounting showing a balance of $65,917. In August 1996, Lane learned that concerned about the trust finances. In May 1996, Lane learned of another March 1996, La ne learned from Ann Kunz Bennett that Dick Bennett was that the trust had over $300,000 exclusive of certain real estate. However, in Lane knew that in August 1995, Dick Bennett provided an accounting showing Bennett, was a co - trustee of the trust created after Robert Bennett’s death. The evidence indicates that Lane knew that Dick Bennett, along w ith Jane such that the belief is reasonable.” N.H. R. Prof. Conduct Terminology (2005). that “the lawyer believes the matter in question and that the circumstances are The Rules of Professional Conduct define “reasonably believes” to mean

finding. See Shillen’s Case, 149 N.H. at 136. injury to Jane Bennett. We conclude that the record reasonably supports this prevent future criminal activity by Dick Bennett which would cause substantial found that Lane reasonably believed that his disclosure was neces sary to whose benefit the property was entrusted,” RSA 638:11 (1996). The referee and which involves substantial risk of loss to the owner or to a person for him as a fiduciary . . . in a manner wh ich he knows is a violation of his duty acts of general theft and of dealing with “property that has been entrusted to Little, he was doing so to prevent Dick Bennett from committing the criminal Lane contend s that, at the time he turned the documents over to Attorney

injury to the financial interest or property of another . . . . believes is likely to result in death or bodily harm or substantial prevent the client from committing a criminal act that the lawyer client] to the extent the l awyer reasonably believes necessary . . . to A lawyer may reveal [information relating to the representation of a

exception to Rule 1.9(b), which provides: Lane next argues that his actions were permitted by Rule 1.6(b), another p. 13 13

considering it. Therefore, Rule 3.3 does not apply to this case and the committee erred by the version of Rule 1.9 at issue here does not list Rule 3.3 as an exception. 311:6 (2005). With respect to the first argument, we have already stated that disclosure was required by Rule 3.3(a)(3) and expressly authorized b y RSA Lane lastly argues that his actions did not violate Rule 1.9(b) because his

625:8, III(a) would apply. to a person for whose benefit the property was entrusted,” the exception in RSA violation of his duty and which involves substantial risk of loss to the owner or has been entrusted to him as a fiduciary . . . in a manner which he knows is a RSA 638:11, I, applies only in cases where a person “deals with property that element of [the crime] is either fraud or a breach of fiduciary duty.” Because prosecution of a crime, even when the time period has run, where “a material limitations period here was only one year, RSA 625:8, III(a) specifically allows that Lane's actions did not help uncover a crime is misplaced. While the Finally, the dissent’s reliance upon the statute of limitations to argue

subjective belief. now or will likely be committed could certainly serve as the basis for a reasonable belief based upon th e preponderance of the evidence that a crime is reasonable doubt with circumstantial evidence alone. Therefore, a mere circumstantial is without merit. Crimes can be established beyond a in criminal activity because all the evidence of suspected wrongdoing was subjective belief that Dick Bennett was currently or would in the futu re engage Similarly, the dissent's conclusion that Lane could not have formed a

money from his mother or the estate, and would continue to do so. conclusion that Dick Bennet t was likely committing a crime, that of taking reasonable doubt. Lane's belief could well have been founded upon a places the bar too high. Lane's reasonable belief need not have been beyond a aware of a possible innocent explanation for Bennett's conduct, the dissent disclosure was required to prevent the commission of a crime because he was In concluding that Lane could not have had a subjective belief that his

see RSA 638:11, I. disclosure was necessary to prevent future criminal activity by Dick Bennett, evidence supports the referee’s finding that Lane reasonably beli eved that his applicability of Rule 1.6(b) as an exception to Rule 1.9. Accordingly, the facts, we conclude that Lane proved by a preponderance of the evidence the Bennett had denied that there was any i nsurance policy. In light of the above into a joint account to which Dick Bennett had access and that, in fact, Dick p. 14 14

N.H. R. Prof. Conduct Terminology. be true” and the circumstances must be such that the belief is reasonable. Conduct 1.6(b). The lawyer must “actually suppose [the matter in question] to thus contains both sub jective and objective components. See id.; N.H. R. Prof. involved actually supposed the fact in question to be true.” Id. Rule 1.6(b) added). The Rules further define “believes” as denoting “that the person belief is reasonable.” N.H. R. Prof. Conduct Terminology (2005) (emphasis believes the matter in question and that the circumstances are such tha t the Professional Conduct define “reasonably believes” to mean that “the lawyer in the context of Rule 1.6(b). As the majority recognizes, the Rules of We have yet to consider the contours of the phrase “reasonably believes”

conclusion as the referee based upon the evidence presented). findings to determine whether a reasonable person could reach the same Shillen’s Case, p. 14 149 N.H. 132, 136 (2003) (we review the referee’s factual Bennett. The record, however, does not reasonably support this findin g. See criminal activity by Dick Bennett which would cause substantial injury to Jane Lane reasonably believed that his disclosure was necessary to prevent future N.H. R. Prof. Conduct 1.6 (2005) (emphasis ad ded). The referee found that

property of another. bodily harm or substantial injury to the financial interest or criminal act that the lawyer believes is likely to result in death or believes necessary . . . to prevent the client from committing a representation of a client] to the extent the lawyer reasonably A lawyer may reveal [information relating to the

evidence that his actions were permitted by Rule 1.6(b), which provides: with the maj ority, however, that Lane proved by a preponderance of the to Dick Bennett’s disadvantage in violation of former Rule 1.9(b). I disagree majority that Lane used the information concerning the life insurance proceeds the Robert Bennett estate, and did not violate Rule 8.4. I also agree with the (Rule) 1.9 concerning the disclosure of the information obtained from the fi le of majority that Lane did not violate New Hampshire Rule of Professional Conduct DALIANIS, J., concurring in part and dissenting in part. I agree with the

DALIANIS, J.