JD-2007-003, COFFEY'S CASE

Wiggin & Nourie, P.A.

No. JD-2007-003

Original

Code of Judicial Conduct (the Code). See C. Coffey, engaged in serious misconduct in violation of Canons 1 and 2 of the Conduct (JCC) determined that the respondent, Superior Court Judge Patricia DUGGAN, J. The New Hampshire Supreme Court Committee on Judicial

recommendation for public censure and grant its request for reimbursement, alternative, to reduce the sanction to public censure only. We adopt the JCC’s Coffey urges us to adopt the JCC’s recommended sanctions or, in the JCC for the expenses incurred in prosecuting her case. On appeal, Judge duties and responsibilities for three months; and (3) ordered to reimburse the Coffey be: (1) publicly censured; (2) suspended without pay from all judicial court-ordered debt. In light of its findings, the JCC recommended that Judge the Professional Conduct Committee (PCC) in its efforts to collect on a valid, protecting his assets from the reach of creditors and, consequently, impeded based, in part, upon Judge Coffey’s admission that she aided her husband in

orally), for the respondent.

and orally), for the Judicial Conduct Committee.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as was permitted to pay “income . . . and such parts of the principal of th[e] p. 2 Coffey was the sole trustee and beneficiary. As the sole trustee, Judge Coffey establishing the “Coffey Family Revocable Trust” (the Trust), of which Judge 2003. Four days later, Judge Coffey and Mr. Coffey executed legal documents The PCC conducted its final hearing in Mr. Coffey’s case on October 31,

she insisted that she “didn’t.” she conceded that she “should have thought of” the possibility of such debts, that such debts “w[ere]n’t anything [she] thought of at the time.” Indeed, while [Mr. Coffey] to the PCC” arising from his disciplinary proceedings, but added “knew or should have known that . . . there could well be legal fees owed by of honesty or integrity,” were not valid. Judge Coffey also testified that she but felt that all of the rest of the charges, including the ones regarding “his lack canon[] on . . . taking an interest in property that was the subject of litigation,” PCC’s charges, she thought that Mr. Coffey had “probably violated . . . the 2003. Judge Coffey later testified in this case that when she looked at the The disciplinary hearings against Mr. Coffey were commenced in June

husband, John J. Coffey. See conduct during, and subsequent to, the PCC proceeding brought against her This disciplinary matter was commenced in response to Judge Coffey’s

disbarment. Judge Coffey participated in any way in the conduct giving rise to Mr. Coffey’s and ordered that he be disbarred. Id. at 504. It has not been alleged that Professional Conduct 1.4(b), 1.5(a), 1.7(b), 1.8(a)(1), 1.8(b), 1.8(j), 2.1 and 8.4(a) 508, 510. We held that Mr. Coffey had violated New Hampshire Rules of to make an informed decision about conveying the [subject] property.” Id. at was “clearly excessive” and that the elderly client “lacked the mental capacity $150,000 less than its assessed value. Id. A referee determined that this fee that was the subject of the dispute, “largely [as] a gift, and partly for fees,” for about paying his fee in cash, Mr. Coffey convinced her to sell him the property Boulevard in Rye. Id. at 504-05. When his elderly client expressed concern fee in connection with an appeal regarding residential property on Ocean background, Mr. Coffey had charged an elderly, mentally ill client an excessive

In addition, she was a member of the JCC for several years. years and a special justice on the municipal court for approximately two years. Prior to serving on the superior court, she was a district court judge for two Hampshire Superior Court justice for approximately fifteen and a half years. The record supports the following facts. Judge Coffey has been a New

suspension must be increased to three years. but we conclude, based upon the analysis that follows, that the three-month the case. See p. 3 Coffey to reimburse it for all expenses incurred investigating and prosecuting with this court, recommending suspension and seeking an order requiring Mr. after denying Mr. Coffey’s motion for reconsideration, the PCC filed its petition with this court recommending a two-year suspension. On December 29, 2003, had committed professional misconduct and that it would be filing a petition real property into the Trust, the PCC notified Mr. Coffey of its decision that he On December 5, 2003, a few days after the Coffeys conveyed all of their

consideration. deeds indicate that at least two of these properties were transferred without Trust. As later acknowledged by Judge Coffey, the tax stamps affixed to the pending, the Coffeys executed three deeds transferring the real estate to the On December 1, 2003, while the PCC case against Mr. Coffey was still

the extent appropriate.” (emphasis added)). Judge Coffey was aware of this instance but may, in whole or in part, be assessed to a disciplined attorney to discipline shall be paid by the New Hampshire Bar Association in the first committee and by bar counsel in the investigation and enforcement of

Sup. Ct. R. 37(16) (amended 2003) (“all expenses incurred by the

Washington Road Property, as well as $500 in cash. personal property and effects” located at the Pioneer Road Property and the contents, furniture, furnishings, items of personal ornament and residual Road Property. Finally, the Coffeys transferred to the Trust “[a]ll household been the Coffeys’ permanent residence until they purchased the Washington parcel of property located on Pioneer Road in Rye (Pioneer Road Property), had parents and currently serves as their permanent residence. The second, a Road Property), had been recently acquired by the Coffeys from Judge Coffey’s first, a parcel of property located on Washington Road in Rye (Washington two pieces of real property that they jointly owned as husband and wife. The located therein. Second, Judge Coffey and Mr. Coffey transferred to the Trust practice, together with all furniture, furnishings and residual personal property interest in the condominium that had served as office space for his law following assets: First, Mr. Coffey transferred to the Trust his individual 100% As indicated in a “Schedule A,” the Coffeys funded the Trust with the

documents from a standard legal-forms text. Coffey drafted the Trust and, to the best of her recollection, obtained the Trust free from the control or claim of any spouse.” Judge Coffey asserts that Mr. creditors . . . and all payments to, or the interest of, any beneficiary shall be . . . shall not be reached by . . . or be subject to the interference or control of provided, as part of a spendthrift provision, that “the interest of any beneficiary rights if Judge Coffey died or became incapacitated. The Trust further legal rights or equitable interest in the Trust assets and would only obtain such had the express authority to revoke the Trust. Mr. Coffey, in contrast, had no [T]rust to, or for the benefit of” herself. Moreover, she was the only person who p. 4 Coffey’s Case On August 12, 2005, we issued our opinion disbarring Mr. Coffey.

notified the PCC of the sale of the Pioneer Road property at this time. these repairs. There is also nothing in the record to indicate that the Coffeys lacks further evidence, such as receipts or contracts, regarding the necessity of had contracted to put on the house. As discussed more fully below, the record construction of a two-car garage and additional office space that the Coffeys that at least a portion of the expenses for these “needed repairs” arose from that they “put them in because [they] needed them.” The record demonstrates Furthermore, she asserted that they “didn’t put the [repairs] in frivolously” and including “a new roof, new siding, new plumbing, [and a] new heating system.” expended on the Washington Road property was required for necessary repairs, contractors for new systems.” According to Judge Coffey, all of the money property. In particular, she stated that they “had obligations coming up for property, Judge Coffey stated that they “put it all into [the] Washington Road” As to the remainder of the proceeds from the sale of the Pioneer Road

property sold. Coffey an invoice for expenses of approximately $75,000, along with a financial $300,000 mortgage in her parents’ favor, and pay them $100,000 when the and prosecuting this matter.” Id. On September 7, 2005, the PCC sent Mr. committee for all of its expenses, including legal fees, incurred in investigating would take “the [Washington Road property] from [her parents] first,” execute a agreed at some point prior to the creation of the Trust, that she and Mr. Coffey Supreme Court Rule 37(16) (amended 2003), Mr. Coffey was “to reimburse the for [the Pioneer Road property] to sell.” She explained that they, therefore,, 152 N.H. at 515. In it, we ordered that, pursuant to former carrying the cost of the [Washington Road property] while [the Coffeys] waited off the market for a little while,” and that her “father didn’t want to continue testified that she and Mr. Coffey had “had [the Pioneer Road property] on and acquisition of the Washington Road property. More specifically, Judge Coffey as consideration – in conjunction with a $300,000 mortgage – for their earlier card debt. Moreover, she stated that $100,000 was transferred to her parents on the property, repayment of an equity loan, and satisfaction of some credit stated that a portion of the proceeds went towards satisfaction of a mortgage the record fails to indicate how much of that amount was profit, Judge Coffey Coffey, as trustee, sold the Pioneer Road property for over $400,000. Although Mr. Coffey and indicated that it would seek reimbursement for costs, Judge On May 24, 2004, approximately five months after the PCC ruled against

the Trust in the Rockingham County Registry of Deeds. costs, the Coffeys recorded the three deeds conveying all of their real estate into 2003, only two days after the PCC filed its petition requesting recovery of its authority to petition this court for recovery of its costs. On December 31, petition and later acknowledged that she is aware of the rules granting the PCC of proceedings under the Uniform Fraudulent Transfers Act.” See p. 5 3, 2006, Niederman contacted the Coffeys and “advis[ed them] of the possibility transferring all of the Coffeys’ real property to the Trust. Accordingly, on April investigation, Niederman uncovered, for the first time, the three deeds assistance from outside counsel, Jay Niederman. During his subsequent contact from the Coffeys. In an effort to spur recovery, the PCC obtained By December 21, 2005, the PCC still had not received any payments or

this time. indicate that either Judge Coffey or Mr. Coffey informed the PCC of this sale at with workmen for the necessary repairs to the physical plant of” the improvements to the Washington Road property. Again, the record does not documents, IRS documents, monthly bank statements, and copies of contracts payments to [her] son’s college, copies of checks and check registers, closing dated June 13, 2006. Judge Coffey complied by providing “verification of Niederman did indeed request such documentation from Judge Coffey by letter PCC would require additional documentation before considering settlement. to resolve the claim,” but was informed by Niederman that he anticipated the According to Judge Coffey, at that meeting she offered a “preliminary concept Judge Coffey met with Niederman to discuss the matter on May 1, 2006.

accounting of the cash proceeds the[] transfers had generated.” items to further understand the motivation for the transfers” and “an A (2007). In addition, Niederman requested that the Coffeys provide “nine proceeds from this sale were spent on living expenses and making RSA ch. 545- According to Judge Coffey, as with the sale of the Pioneer Road property, the totaling $16,371.11, Judge Coffey netted $176,689.96 from this sale. of $11,299.81, and realtor commissions, attorneys’ fees, taxes, and other costs the amount of $35,639.12, condominium association arrearages in the amount the Trust for $240,000. After paying off the mortgage on the condominium in Judge Coffey sold the office condominium that Mr. Coffey had transferred to received the PCC’s formal demand for payment and claimed an inability to pay, On October 31, 2005, approximately seven weeks after Mr. Coffey had

timeframe, the Coffeys received $10,000 from the sale of stock. not inform the PCC of the Trust at this time and that, at some point in this the couple had “no money to pay.” The record indicates that the Coffeys did with her husband that, even if they had received additional correspondence, hear something from the [PCC],” such as another bill. Moreover, she concurred she and Mr. Coffey “didn’t make any effort to pay, expecting [that they would] payment plan, but acknowledges that she was aware of the demand, and that pay.” Judge Coffey alleges that she did not see the request for a proposed was unemployed, owned no property,” and thus lacked “a present ability to Mr. Coffey completed the affidavit and responded to the PCC, claiming “that he affidavit form and a letter requesting that Mr. Coffey “propose a payment plan.” documentation that Niederman considered. Nor did the JCC make any specific p. 6 Washington Road property. At least JCC failed to incorporate, as part of the record, all of the contracts and of 2006, the Coffeys spent approximately $263,000 on improvements to the either necessary or contracted for prior to our order mandating repayment, the handwritten notes Judge Coffey provided to the JCC, from 2004 until the end Despite Judge Coffey’s assertions that all of these expenditures were uncertainty is further exacerbated by the fact that, according to the that the Coffeys had indeed spent the money as they had claimed. This Road property was for necessary repairs, or whether they were merely stating and Calaman actually concluded that the money invested in the Washington proceeds.” It is difficult to determine from this statement whether Niederman 6 “satisfied that the Coffeys had adequately explained the disposition of transactions, both he and the PCC’s staff auditor, Craig Calaman, became documentation Judge Coffey provided regarding the various real estate In his letter to the JCC, Niederman noted that, after reviewing the

master and hall bathroom. replacement “kitchen sink and faucet”; and (5) plumbing work to existing replacement “kitchen countertops”; (3) “replacement appliances”; (4) but included such expenditures as: (1) replacement “kitchen cabinetry”; (2) treated lumber for a deck. The remaining amount was spent prior to our order, replacement faucet, vanity and sink from Ethan Allen, and $5,775 in pressure our August 12, 2005 order, and included such expenditures as $2,440 for a

indicate that the Coffeys informed the PCC of the refinancing at this time. went towards satisfaction of the PCC’s claim. Moreover, the record does not contractors for work on the Washington Road property. None of the money amount of $9,752. The remaining proceeds, totaling $38,546, were used to pay paid $2,938 in property taxes, and made four mortgage payments in the their adult son with $3,300 for “housing, auto and student loan expenses,” debt owed exclusively by Mr. Coffey for Yellow Pages advertisements, provided from this refinancing. With that money, the Coffeys paid $3,155 to settle a required them to pay off prior to approving the loan, the Coffeys netted $57,134 well as $20,502 in credit card debt that Judge Coffey testified the mortgagee $280,000. After paying off an old variable-rate mortgage on the property, as refinance mortgage on the Washington Road property in the amount of On June 10, 2006, Judge Coffey, as trustee of the Trust, obtained a

IRA in partial satisfaction of the debt. that at some point Judge Coffey suggested that Mr. Coffey would liquidate his “some general discussion of a possible settlement.” In either event, it is clear Mr. Coffey first received the PCC’s demand – that Judge Coffey first engaged in subsequent meeting in early September 2006 – approximately one year after Washington Road property. But, according to Niederman, it was not until a trustee and beneficiary of the Trust, she conceded that she and Mr. Coffey: p. 7 horrific.” Moreover, when pressed on the issue of why she was named sole understood the JCC’s concerns because “the timing [of the transfers] is really canons or [her] own personal ethics.” However, Judge Coffey stated that she pending or seriously contemplated, was in any way violative of the judicial that changing the form of real estate ownership, when there were no claims [her] son the burden of probate duties.” She contended that she “did not think once again asserted that her “primary goal [in creating the Trust] was to spare 7 T. McLaughlin. During their discussion, which was under oath, Judge Coffey On May 15, 2007, Judge Coffey met with the attorney for the JCC, Philip

created only as “end of the year estate planning, plain and simple.” JCC, thus initiating the present action. See judgment entering against him.” Finally, she claimed that the Trust was The PCC accepted the settlement and referred Judge Coffey’s case to the earlier, at a time when [Mr. Coffey] was much more exposed to a larger disclose its precise terms. much more sense to do so when civil litigation was threatened, several years indicates that this was the third mortgage on the property, but it does not she and her husband had intended to shield their assets, “it would have made Road property for the remaining balance of the PCC’s claim. The record especially, not a court order for repayment of legal fees.” She argued that, if PCC with approximately $25,000, and execute a mortgage on the Washington current or prospective, when the trust was signed and later recorded, and most settlement, the Coffeys agreed to liquidate Mr. Coffey’s IRA, thus providing the 2007, asserting that she “never had ANY intention of avoiding ANY debt, PCC’s intention to contact the JCC, she agreed to a settlement. Under the Uniform Fraudulent Transfer Act.” Judge Coffey responded on January 2, “concern that property may have been conveyed improperly in violation of the Judge Coffey and, although she “was distraught when she first learned of the” to resolve the matter. Accordingly, on December 6, 2006, Niederman contacted letter, the PCC described its lengthy efforts to obtain payment and expressed The PCC ultimately agreed and authorized Niederman to make one last attempt Sup. Ct. R. 40(4). In its referral reconsider filing suit given “the merits and risks attendant to such litigation.” action regarding the conveyances. Niederman, however, suggested the PCC bring the matter to the attention of the JCC, and told Niederman to file a civil On November 21, 2006, the PCC reviewed the status of the case, voted to

part of the record, our review of these expenditures is, necessarily, limited. questioned Niederman’s findings and the contracts and documentation are not contacted the Coffeys. As a result, because the JCC does not appear to have “no attempt at repayment was made or compromise offered until” Niederman “concern” that “some considerable funds were available after [our] order” and finding concerning the necessity of these repairs, instead only expressing p. 8 JCC for its costs. See conclusion of her current administrative leave, and ordered to reimburse the be publicly censured, suspended for three months without pay following the Judge Coffey had engaged in “serious misconduct” and recommended that she On December 21, 2007, the JCC issued its report, in which it found that 8

Panel on her behalf”; (2) “the conduct in question was ‘non-judicial’”; (3) she jurist,” as evidenced “by the number and quality of the letters submitted to the the fact that: (1) Judge Coffey has a positive “record and reputation as a

property in order to pay off the remainder of the PCC’s claim. the Washington Road property back to joint tenancy, and refinanced the Coffey. See after the PCC’s initial demand – Judge Coffey revoked the Trust, transferred On August 15, 2007, the JCC instituted proceedings against Judge owed to the PCC.” At around the same time as the stipulation – over two years interest in real estate which, in turn, may have impeded the collection of a debt the Trustee [sic acknowledging that she had violated Canons 1 and 2 of the Code. See] conveyances of property which extinguished Mr. Coffey’s legal of [the T]rust of which she became the sole trustee and in receiving on behalf of On October 25, 2007, Judge Coffey entered into a stipulation of facts, impropriety and the appearance of impropriety in participating in the creation protecting his assets from the reach of creditors”; and (4) “failed to avoid both she became Trustee and primary beneficiary”; (3) “[a]ided Mr. Coffey in Coffey transferred their respective interests in valuable real estate and in which “[p]articipated in the declaration of a trust to which Mr. Coffey and Judge with legal proceedings regarding the disciplining of Mr. Coffey”; (2) against Mr. Coffey, would be seeking the recovery of fees and costs associated or should have known that the [PCC], in the event it prevailed in its action R. have that discussion, yes. 38. Through this stipulation, Judge Coffey conceded that she: (1) “[k]new hit the papers, you never know what’s going to happen, so we did Sup. Ct. anyone would come out of the woodwork about, but when things that he had committed any malpractice or had done anything that of Judicial Conduct. See reach of some creditor down the road, but we had no information Sup. Ct. R. 38. ch. 545-A, and that such conduct is a violation of Canons 1 and 2 of the Code be an effort to fraudulently convey something to put it out of the fraudulent intent as set forth” in the Uniform Fraudulent Transfer Act, see coming out of the woodwork and suing, and I suppose that would RSA other things, that “Judge Coffey’s conduct reflects certain of the indicia of [Mr. Coffey] was getting in the newspapers, about some crazy client did have some conversation about – with all the negative publicity Sup. Ct. R. 40(9). In its formal charge, the JCC asserted, among sanction. p. 9 costs. We turn now to an assessment of the propriety of the recommended additionally requests that we order Judge Coffey to reimburse the JCC for its for the JCC similarly urges us to adopt the recommended sanction and the alternative, to hold that a public censure is sufficient in this case. Counsel Judge Coffey urges us to adopt the sanction imposed by the JCC or, in

Panel. debt owed to the PCC[,”] thereby incurring additional costs to that admitted that her actions “may have impeded the collection of a judicial misconduct, and that by her Stipulation, Judge Coffey has there is a cost to the judiciary and judicial system by virtue of any of creditors[.”] As to the third, members of the Panel noted that that she “aided Mr. Coffey in protecting his assets from the reach property was fraudulent, Judge Coffey admitted in the Stipulation to the second, while no finding has been made that the transfer of

been made whole. The first statement appears to be accurate. As had been no fraudulent activity, and that ultimately the PCC had

Counsel further argued that no crime had been committed, there

complete cooperation was compromised. above, those voting for the motion felt that counsel’s argument of that were ultimately made in the final Stipulation. Given the statement to Attorney McLaughlin fell far short of the admissions

earlier statements in her letter of January 2, 2007 and her

members of the Panel expressed concern that Judge Coffey’s had voted to refer the matter to the JCC. Beyond that, many

passed before an agreement was reached, and that after the PCC

contact by collection counsel. Even then another 8 months

no attempt at payment was made or compromise offered until were available after the Supreme Court Order in August of 2005,

There was concern . . . that although some considerable funds

the JCC stated the following: full impact of her actions at a far earlier stage of the proceedings.” In addition, constitute misconduct under the Code and thus expected to acknowledge the number of years, Judge Coffey should have been more aware of what would However, the JCC also noted that, “as a member of the [JCC] for a

that the debt to the PCC had been paid in full.” the hearing, “the Trust had been revoked . . . and the property refinanced so writing and voluntarily submitting to a sworn statement”; and (5) by the time of the PCC by providing financial information and with the Panel by responding in time under consideration”; (4) “she had cooperated with collection counsel for had been “faced with some serious family issues during some portion of the p. 10 See amounted to a violation of Canons 1 and 2 of the Code of Judicial Conduct. In the matter before us, it was stipulated that Judge Coffey’s conduct

Code is not disputed, our inquiry is limited to “the more difficult task of Sup. Ct. R. 38. Because Judge Coffey’s breach of these provisions of the

determine if its conclusion is supported by the record.” Id found as the committee did based on the evidence before it, that is, to proper.” Sup. Ct. R. evidence anew, but to determine whether a reasonable person could have 40(13). 140 N.H. at 622, and base our decision upon what we deem to be “just and “Our role on review of the [JCC]’s factual findings is not to review the omitted). Thus, we consider the question of sanction de novo, Snow’s Case, Petition of Judicial Conduct Comm., 151 N.H. 123, 126 (2004) (citation determine when, whether and to what extent discipline should be imposed.” regulate [judicial] conduct, and therefore encompasses the discretion to supervisor of the courts “includes the authority to determine how best to proved by “clear and convincing evidence”). But our responsibility as see also Sup. Ct. R. 40(11) (explaining how a violation of the Code must be

the [JCC]’s procedural rules.” Snow’s Case, 140 N.H. at 622. establishing and describing the [JCC], and Supreme Court Rule 40, outlining inherent authority to discipline that “[w]e promulgated Supreme Court Rule 39, 544, 569 (Cal. 1995). It was pursuant to our constitutional, statutory, and 618, 621 (1996); see also Adams v. Com’n on Judicial Performance, 897 P.2d protect “the public from further acts of misconduct,” Snow’s Case, 140 N.H. confidence in the judiciary,” Petition of Thayer, 145 N.H. 177, 180 (2000), and exercise our disciplinary authority not to punish, but rather to “foster[] public judicial system,” Opinion of the Justices, 140 N.H. at 300. Accordingly, we 124 N.H. 171, 179-80 (1983), and to carry out our mandate to “preserve the . . . [is] absolutely necessary for [us] to function effectively,” State v. LaFrance, This power to discipline and control “the actions of officers of the court

140 N.H. 297, 299-300 (1995). standard of behavior. Opinion of the Justices (Judicial Salary Suspension), discipline those judges who fail to maintain this constitutionally mandated 112 N.H. 99, 101 (1972); see RSA 490:4 (1997), includes the power to (1978), as well as our superintending control over the courts, In re Mussman, authority, see N.H. CONST. pt. II, art. 73-a; Smith v. State, 118 N.H. 764, 770 behave well.” N.H. CONST., pt. I, art. 35. Our constitutional and inherent secure, our constitution permits judges to “hold their offices so long as they hold judicial office. In order to ensure that the “rights of the people” are Under the New Hampshire Constitution, it is a privilege, not a right, to

p. 11 an approach similar to the Alaska Supreme Court’s. However, while we have In their briefs, the parties appear to have presumed that we would adopt

professional conduct are not in pari materia previously observed, “[t]he rules of judicial conduct and the rules of

professional conduct above that expected of attorneys. See Snow’s Case, 140 station in our society, judges must maintain a standard of personal and beyond a limited and superficial extent”). Because they assume a heightened “dubious the notion that judicial or attorney misconduct cases are comparable also In the Matter of Del Rio, 285 N.W.2d 277, 282 (Mich. 1979) (finding

governing lawyers in mind. This poses a problem because, as we have baseline sanctions, which were crafted with the rules of professional conduct problematic. The efficacy of the Standards is largely contingent upon its 156 N.H. at 365, we believe their application in this context would be

in the American Bar Association’s Standards for Imposing Lawyer Sanctions area, the Alaska Supreme Court has decided to analogize to the four-prong test Recognizing the necessity for some form of analytical framework in this P.2d at 724. factors will have on that baseline sanction. Inquiry Concerning a Judge, 788 The court then considers the effect, if any, that mitigating and aggravating judge’s conduct. Id. at 724; see also Grew’s Case, 156 N.H. 361, 365 (2007). judge’s mental state, and the actual or potential injury occasioned by the baseline sanction by considering the ethical duty the judge has violated, the Concerning a Judge, 788 P.2d at 723. Thus, that court first fashions a (2005) (Standards) “insofar as possible when sanctioning judges.” Inquiry

disciplinary recommendations.” Id. standards “will allow this Court to more meaningfully review the [JCC]’s Brown, 626 N.W.2d 403, 405 (Mich. 2001). Furthermore, imposition of a set of ensure that equivalent cases are treated in an equivalent manner. See In re principles to govern judicial discipline matters, we can better enable the JCC to 788 P.2d 716, 723 (Alaska 1990) (quotation omitted). By articulating a set of fairness to the public and the legal system.” In re Inquiry Concerning a Judge, that a “framework is needed to ensure a level of consistency necessary for body of precedent, the Code and its own conscience as guidance. We believe Currently, the JCC is required to consider each case using only a limited

See Sup. Ct. R. 40( p. 12 12)(d). JCC, and ultimately this court, can turn for guidance in determining sanction. address a preliminary matter: to wit, the absence of standards to which the (Neb. 2001). Before engaging in that undertaking, however, we must first determining an appropriate sanction.” In re Krepela, 628 N.W.2d 262, 271 12 of the factors most commonly considered. See judicial conduct decisions reported between 1990 and 2001, and distilled a list The American Judicature Society (AJS) has conducted a study of all [the commencement of] disciplinary proceedings”; and (5) the judge’s reputation culpability”; (4) “[t]he judge’s conduct in response to the [JCC]’s inquiry and the misconduct”; (2) “[t]he extent of the misconduct”; (3) “[t]he judge’s the sanction in judicial misconduct cases, we will consider: (1) “[t]he nature of adopt the five factors provided in the AJS Study. Accordingly, in determining encapsulate the myriad of considerations relevant to the sanction inquiry, we Study). Because this study is comprehensive and the factors it articulates Society: A Study of State Judicial Discipline Sanctions 77-82 (2002) (AJS by comparing it with prior cases. See C. Gray, American Judicature with a set of principles or factors in mind, and then place the case into context analysis have typically opted to consider each instance of judicial misconduct Other courts that have attempted to provide a framework for the sanction 266 (La. 1989) (adopting the Deming factors). considered in each judicial discipline case); In re Chaisson, 549 So. 2d 259, P.2d 639, 659 (Wash. 1987) (culling a list of ten “non-exclusive” factors to be determining the sanction in a judicial misconduct case); Matter of Deming, 736 1158 (Miss. 2004) (articulating a list of six factors to be considered when misconduct); Miss. Com’n on Jud. Performance v. Gibson, 883 So. 2d 1155, (articulating a set of factors that differentiates the various gradations of judicial

the Standards Moreover, the Standards in this context would cause more confusion than clarity. impartiality of the court.” (quotation omitted)). For these reasons, adoption of standard, i.e., would a reasonable person, not the judge himself, question the (“Whether an appearance of impropriety exists is determined under an objective irrespective of the judge’s mental state. See Snow’s Case, 140 N.H. at 624 can be subject to discipline for simply creating an appearance of impropriety, Standards, supra s. II, at 6; Grew’s Case, 156 N.H. at 366. In contrast, a judge intentionally or with knowledge before discipline can be imposed. See, e.g., Standards generally require a finding that an attorney acted negligently, R. 38; see Inquiry Concerning a Judge, 788 P.2d at 725. Indeed, the here, a judge’s conduct has created “an appearance of impropriety.” Sup. Ct.

Standards for the same conduct. more severe baseline sanction than that imposed upon an attorney under the 1975). It is, thus, conceivable that in many cases a judge may be subject to a ordinary lawyers”); In re Inquiry Relating to Rome, 542 P.2d 676, 682 (Kan. analogical scope because judges are held to a higher level of scrutiny than are 788 P.2d at 723 n.11 (acknowledging that “[t]he [Standards] are limited in strictest integrity” (quotation omitted)); see also Inquiry Concerning a Judge, N.H. at 621 (explaining that “the judiciary in particular” must maintain “the p. 13 The third factor requires analysis of the judge’s level of culpability. AJS

933 P.2d 563, 569 (Ariz. 1997); Matter of King, 568 N.E.2d 588, 599 (Mass. heed such warnings, AJS Study, supra at 82; see also Matter of Fleischman, whether the judge was warned of the impropriety of her conduct and failed to behavior in question, see In re Marullo, 692 So. 2d 1019, 1023 (La. 1997), or into account, such as whether there is precedent expressly forbidding the have had, an effect upon the judge’s decision-making process must be taken Study, supra at 82. Under this factor, the circumstances that had, or should

Second, the extent of the judge’s misconduct must be assessed. AJS at 82. series of acts is also relevant. See Deming, 736 P.2d at 659; AJS Study, supra consideration). Whether the misconduct was an isolated act or an ongoing judicial system arising from a judge’s suspension should be given at least some Judge, 462 S.E.2d 728, 736 n.13 (Ga. 1995) (noting that the costs to the “indirect economic detriment to the public.” Id First, the nature of the judge’s misconduct must be determined. AJS.; see also Inquiry Concerning a litigants, . . . to the public’s perception of the fairness of the judicial system,” or judge’s conduct. This harm can take the form of “harm to the court system, to determination of the degree of actual or potential harm occasioned by the Study, supra at 82; Gibson, 883 So. 2d at 1158. Central to this inquiry is a

of a spontaneous nature. AJS Study, supra at 81; Brown, 626 N.W.2d at 405. misconduct that is the result of deliberation is generally more serious than that on Jud. Performance v. Dodds, 680 So. 2d 180, 190-200 (Miss. 1996); and (2) “motivated by compassion for others,” AJS Study, supra at 81; cf. Miss. Com’n vindictiveness, ill-will, or other dishonest” motive is more egregious than that state is salient because: (1) misconduct that is motivated by “personal profit, 624; see also Matter of Larsen, 616 A.2d 529 (Pa. 1992), the judge’s mental all degrees of intent can warrant judicial discipline, Snow’s Case, 140 N.H. at intentionally, knowingly, or negligently.” AJS Study, supra at 81. Even though factor we also consider “whether the judge acted in bad faith, good faith, the same misconduct off the bench.” Brown, 626 N.W.2d at 405. Under this P.2d at 659. In general, “misconduct on the bench is . . . more serious than the judge’s official capacity or in the judge’s private life.” Id.; see Deming, 736 violated and a determination as to whether the offensive conduct “occurred in Study, supra at 81. This requires an identification of the specific canon

considerations under each factor. judicial system”). We begin by briefly discussing some of the relevant of improper activity and the effect of the improper activity on others or on the such factors as the seriousness of the transgression, whether there is a pattern a reasonable and reasoned application of the [Code] and should depend on Preamble (dictating that the degree of discipline “should be determined through and record on the bench. AJS Study, supra at 81-82; see Sup. Ct. R. 38, p. 14 14

sanctioned, that too must be weighed. AJS Study, supra at 82. offending conduct has resulted therefrom). If the judge has been previously law is only valid as mitigation in the attorney misconduct realm where the Cf. Grew’s Case, 156 N.H. at 367 (holding that inexperience in the practice of mitigating factor if inexperience partially accounts for the offensive conduct. AJS Study, supra at 82. In certain cases, lack of experience may be a have been familiar with the high standards established for judicial behavior.” due weight. AJS Study Similarly relevant is “[w]hether the judge was experienced and[, thus,] should Finally, the judge’s reputation and record on the bench must be given its and efficiently run a court with a heavy caseload.” AJS Study, supra at 82. innovative procedural reform”; and (3) “[t]he judge’s ability to fairly, effectively, the court and the community”; (2) “[t]he judge’s commitment to fairness and by looking at, for example: (1) “[p]ositive contributions made by the judge to contrary to the” Code). Under this factor, the judge’s reputation is determined JCC’s inquiry and the commencement of disciplinary proceedings. AJS Study existence of misconduct, but rather “shows that his conduct is not universally Fourth, we consider the actions taken by the judge in response to the a judge’s “good conduct, to which others testified, does not disprove” the Elliston, 789 S.W.2d 469, 480 (Mo. 1990) (en banc) (explaining that evidence of unblemished record as sufficient mitigation to prevent removal), with In re Compare In re Krepela, 628 N.W.2d at 271 (offering a judge’s long,

will not mitigate the sanction. AJS Study, supra at 70. that he had erred). In contrast, a “[h]alf-hearted attempt[] at remedial action” offer of remorse as having arisen out of fear of sanction, and not the realization genuinely penitent mind. Cf. Snow’s Case, p. 14 140 N.H. at 628 (rejecting judge’s such an expression of remorse can justify mitigation when resulting from a acceptance of responsibility by showing remorse, AJS Study, supra at 82, as acknowledgement “that the acts occurred,” Deming, 736 P.2d at 659, and dismissed, 360 N.E.2d 964 (N.Y. 1976). We also give weight to a judge’s investigatory panel during his judicial misconduct proceedings), appeal Div. 1976) (removing a judge for, primarily, lying under oath to the giving false testimony. Id.; see Matter of Perry, 385 N.Y.S.2d 589, 589 (App. or attempted to subvert the JCC’s investigation by presenting false evidence or supra at 82. Relevant here is whether the judge was candid and forthcoming,

fitness to fulfill her responsibilities. cases where the condition persists and, thus, continues to affect the judge’s was only temporary and is no longer of consequence – or aggravation – as in judge’s faculties can operate as mitigation – as in cases where the hindrance some other addiction. AJS Study, supra at 82. Such impairments to the “suffering from physical or mental disability”; or (3) impaired by alcoholism or whether the judge was: (1) “suffering from personal or emotional problems”; (2) 1991). Application of this factor will also typically include an assessment of p. 15 Sup. Ct. R.

the creation of the Trust was fraudulent, several passages have an equivalent factor, see First, while the statement of formal charges did not explicitly state that In properly characterizing the nature of the misconduct under the first

p. 15 Sup. Ct. R. record. the meaning of” RSA chapter 545-A. We believe this claim is at odds with the any finding, that the 2003 trust and deeds were fraudulent conveyances within mitigation, that “[t]he statement of charges did not allege, nor was there ever conduct. On this issue, Judge Coffey asserts, as part of her argument for impartiality of the judiciary. particular Code provisions that were violated and characterizing the underlying whether . . . [a] violation [of the Canons] is serious”), by first looking beyond the 623 (explaining how “we review the record in its entirety . . . to determine conclusion that this was “serious misconduct,” see A Judge Should Avoid Impropriety and the Appearance of Snow’s Case, 140 N.H. at

AJS Study, supra at 81, we must assess the validity of the JCC’s and 2 of the Code. p. 15 Sup. Ct. R.

As noted above, Judge Coffey has stipulated that she violated Canons 1 these ethical mandates was “serious misconduct.”

38, Canon 2(A). The JCC determined that Judge Coffey’s breach of

manner that promotes public confidence in the integrity and respect and comply with the law and shall act at all times in a Impropriety in All of the Judge’s Activities. . . . A judge shall A Judge Should Uphold the Integrity and Independence of the

38, Canon 1. Canon 2 of the Code states, in pertinent part:

that objective . . . . provisions of this Code should be construed and applied to further integrity and independence of the judiciary will be preserved. The conduct, and shall personally observe those standards so that the in establishing, maintaining, and enforcing high standards of indispensable to justice in our society. A judge should participate Judiciary. An independent and honorable judiciary is

analytical framework to the matter before us. parties have addressed the essence of each factor. Therefore, we now apply the the JCC issued its decision or the parties filed their briefs, the JCC and the While this precise analytical framework was not the controlling law when

p. 16 Coffey’s admission that she had aided her husband in protecting his assets finding on the issue of intent to defraud was necessary in light of Judge passage merely demonstrates that the JCC did not believe that an explicit in protecting his assets from the reach of creditors.’” Reasonably read, this fraudulent, Judge Coffey admitted in the Stipulation that she ‘aided Mr. Coffey note that, “while no finding has been made that the transfer of property was “that there had been no fraudulent activity,” that the JCC found it necessary to also of little consequence. It was only in response to Judge Coffey’s assertion The JCC’s failure to explicitly state that the conveyance was fraudulent is

proceeding, that Judge Coffey was complicit in a fraudulent conveyance. Cf 16 fraudulent is not required for us to find, for purposes of this disciplinary In any event, an order stating unequivocally that the conveyance was

Appeal of Tennis, 149 N.H. 91, 93 (2003) (statutory interpretation is a question determine their legal consequences. Cf. Snow’s Case, 140 N.H. at 622-23; properly characterizing the misconduct, to take the facts as found and “finding” of fraudulent conveyance. omitted)). It is well within our authority, and indeed part of our duty in its claim without resorting to suit, thus obviating the need for a specific underlying conduct giving rise to that indictment or conviction” (citation RSA 545-A:7, I(a) (2007). The creditor in this case, the PCC, was able to satisfy final disciplinary action is not the fact of conviction or indictment, but the fraudulent transfer “to the extent necessary to satisfy the creditor’s claim.” Eshleman’s Case, 126 N.H. 1, 5 (1985) (holding that “the critical fact prompting conveyance statute bestows upon creditors a right to file suit in order to void a. there has not yet been an occasion specifically requiring one. The fraudulent Second, there has been no “finding” of a fraudulent conveyance because

de novo.”). interpretation of other written documents, is a question of law, which we review 1268, 1272-73 (2008) (“The interpretation of final judgments, like the

fraudulent. assertions clearly amount to an allegation that the underlying transfers were certain of the indicia of fraudulent intent” in RSA 545-A:4. Together, these court. Thus, the formal charges conclude, “Judge Coffey’s conduct reflects Mr. Coffey to impede collection of debts including expenses as ordered by” this coincidence but, rather, support a conclusion of intentional cooperation with creation of the Trust “do not support Judge Coffey’s claim of innocent in another section the formal charges assert that the timing and effects of the which applies in considering Judge Coffey’s conduct.” Even more to the point, debtor-creditor relations which . . . constitute[] an expression of public policy charges state that “RSA 545-A establishes certain standards pertaining to effect. For instance, in a section entitled “Fraud of Creditors,” the formal fraudulent intent from the circumstances surrounding the transfer.” Max p. 17 Even assuming such admissions are insufficient, however, we can “infer

(determination that debtor had actual intent to fraudulently transfer property fraudulent intent); In re Varrasso, 37 F.3d 760, 764 (1st Cir. 1994) may rely upon objective badges of fraud to support inference of actual Corp., 403 F.3d 43, 56 (2d Cir. 2005) (in fraudulent conveyance action, pleader determining the existence of fraudulent intent. See statute is an intent to hinder, delay or defraud any, e.g, In re Sharp Intern. defraud a creditor, courts have long considered objective “badges of fraud” in alone are sufficient to find “actual intent,” as all that is required under the 984 (1st Cir. 1983). As debtors will rarely admit an intent to hinder, delay or of the reach of some creditor down the road.” Arguably, these admissions evidence of actual fraudulent intent); see could be construed as “an effort to fraudulently convey something to put it out also In re Roco Corp., 701 F.2d 978, as section 548 of the Bankruptcy Code, recognize certain “badges of fraud” as acknowledged that making these transfers with such a consideration in mind Cir. 1991) (explaining how the common law of fraudulent conveyance, as well crazy client coming out of the woodwork and suing [Mr. Coffey].” Judge Coffey Sugarman Funeral Home, Inc. v. A.D.B. Investors into her sole name because, at least in part, they were concerned about “some, 926 F.2d 1248, 1254 (1st JCC prosecutor that she and Mr. Coffey decided to transfer all of the property In resolving this issue, we note first that Judge Coffey admitted to the

one who is ultimately defrauded. RSA 545-A:4, I(a).

Transfer Act. RSA 545-A:4, I(a) (emphasis added). delay, or defraud any before or after creditor,” as those terms are used under the Fraudulent question is whether the transfers were made “[w]ith actual intent to hinder,. . . by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose Coffey in protecting his assets from the reach of creditors.” Therefore, the only Under the New Hampshire Fraudulent Transfer Act, “[a] transfer made In addition, as noted above, Judge Coffey has stipulated that she “[a]ided Mr. involuntary, of disposing of or parting with an asset or an interest in an asset”). every “mode, direct or indirect, absolute or conditional, voluntary or sole beneficiary. See RSA 545-A:1, XII (defining “transfer” broadly to include into the Trust, under which Judge Coffey was both the sole trustee and the transferred all of their interests in real property out of Mr. Coffey’s name and RSA 545-A:4, I(a) (emphases added). It is undisputed that the Coffeys [w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.”

the transfer was made . . . if the debtor made the transfer . . .

whether the underlying transfers were fraudulent conveyances. as mitigation, we must now determine, based upon the facts found by the JCC, finding on the issue of fraud, and because Judge Coffey has offered this failure of law which we review de novo). Because the JCC failed to make an explicit p. 18 Judge Coffey was complicit in a fraudulent transfer. See financial security,” we conclude that the record sufficiently demonstrates that PCC proceedings had caused her concern for her family’s “emotional and to defraud potential future creditors and her concession in her brief that the In light of these facts, as well as Judge Coffey’s admission of some intent

least two of the transfers were made for no consideration. See insolvent and unable to satisfy the claims of his creditors”). And, finally, at 18

II(h). ‘significantly clear’ evidence of a legitimate supervening purpose.” Max RSA 545-A:4, constitute conclusive evidence of an actual intent to defraud, absent transfers between spouses where the debtor spouse is thereby rendered badge of fraud may spur mere suspicion, the confluence of several can a fraudulent conveyance has occurred, “[s]pecial scrutiny [must be] applied to the asset transferred,” RSA 545-A:4, II(h). While “[t]he presence of a single N.E.2d 117, 122 (Ill. App. Ct. 1985) (explaining how, when considering whether consideration received by the debtor was reasonably equivalent to the value of Coffey’s assets. See all the debtor’s assets,” RSA 545-A:4, II(e); and (5) “The value of the RSA 545-A:4, II(e); see also Kardynalski v. Fisher, 482 affidavit submitted to the PCC, the transfer was of substantially all of Mr. threatened with suit,” RSA 545-A:4, II(d); (4) “The transfer was of substantially Judge Coffey, who are spouses and thus “insiders.” See A:4, II(d). Fourth, as evidenced by his assertion of indigence in the financial intent in this case: First, the transfers were made between Mr. Coffey and A:4, II(b); (3) “Before the transfer was made . . ., the debtor had been sued or recovery of fees and costs associated with” those proceedings. See These “badges of fraud” clearly point towards a finding of fraudulent possession or control of the property transferred after the transfer,” RSA 545- RSA 545the event it prevailed in its action against Mr. Coffey, would be seeking the “The transfer . . . was to an insider,” RSA 545-A:4, II(a); (2) “The debtor retained Coffey has stipulated that she “[k]new or should have known that the [PCC], in Under our statutory scheme, such “badges of fraud” include whether: (1) the PCC proceedings against Mr. Coffey had already commenced and Judge Trust assets. See RSA 545-A:4, II(b). Third, before the transfers were made, enjoyment of the improvements that were occasioned by the sale of the other the Washington Road property after the transfer and received the benefits and Second, the record indicates that the Coffeys retained possession and control of RSA 545-A:1, VII(a) (defining “insider” in this context to include relatives).

Sugarman Funeral Home, Inc., 926 F.2d at 1254-55 (citations omitted).

contradiction.”). may be sufficiently potent to establish fraudulent intent beyond hope of 445 F.3d 518, 522 (1st Cir. 2006) (“[I]n certain cases, circumstantial evidence can be made based upon undisputed material facts); see also In Re Marrama, p. 19 See examination of whether the conduct occurred in a judicial or personal capacity. underlying conduct, determining the nature of the misconduct also requires Beyond identifying the specific canon violated and categorizing the

execution of this court’s order granting the PCC reimbursement. Therefore, Washington Road property beyond the PCC’s reach and, thus, stalled the proceeds from the sale of the condominium and the refinancing of the court, to collect its debt. Moreover, the existence of the Trust placed the subsequent use of Trust assets thwarted the efforts of the PCC, an arm of this Here, however, Judge Coffey’s complicity in the creation of the Trust and her sanction given to” those who commit misconduct in their official capacity). private and official misconduct “is drawn for the purpose of increasing the also Grew’s Case, 156 N.H. at 368-69 (explaining how the line drawn between than conduct committed on the bench. p. 19 See Brown, 626 N.W.2d at 405; see in her official capacity and, thus, would normally be regarded as less severe The JCC is undoubtedly correct that the Trust was not created by Judge Coffey underlying conduct “occurred in the context of Judge Coffey’s personal affairs.” nature of her misconduct, the JCC considered as mitigation the fact that the AJS Study, supra at 81; Deming, 736 P.2d at 659. Despite the serious Coffeys spent on improvements to the Washington Road property, at least contact by collection counsel.” To be sure, of the approximately $263,000 the August of 2005, no attempt at payment was made or compromise offered until some considerable funds were available after the Supreme Court Order in mandating repayment of the PCC’s expenses. As the JCC observed, “although involves “serious misconduct.” troubled by Judge Coffey’s actions in apparent disregard of our order light of the foregoing, we concur with the JCC’s determination that this case But, in addition to her complicity in the creation of the Trust, we are also and more cooperative with the PCC in attempting to settle the claim earlier. In should have been both more forthright in disclosing the existence of the Trust review, we believe the JCC is correct in its implicit finding that Judge Coffey above, the sparse record as to the necessity of the expenditures limits our $110,000 was spent following our August 12, 2005 order. While, as we noted

p. 19 See Sup. Ct. R. 38. respect . . . the law”), and, at minimum, created an appearance of impropriety. policy is grounds for aggravation); Sup. Ct. R. 38, Canon 2 (“A judge shall 122 (N.J. 1993) (holding that a judge’s infringement of an important public public policies embodied in RSA 545-A:4, see Matter of Seaman, 627 A.2d 106, participating in the fraudulent conveyances, Judge Coffey contravened the making him insolvent), appeal granted, 731 N.W.2d 423 (Mich. 2007). By consent divorce that transferred all of his assets to his former wife, thus judgment debtor had, prior to conclusion of the underlying case, entered into a had a valid claim under the Uniform Fraudulent Transfer Act where the N.W.2d 119, 130-34 (Mich. Ct. App. 2006) (finding that a judgment creditor family issues during some p. 20 agree with the JCC’s finding “that Judge Coffey was faced with some serious With respect to the third factor – the judge’s level of culpability – we 20

ultimately, his death. Although not all of these issues persisted throughout the Alzheimer’s disease, and her father’s hospitalization for depression and, her husband, her husband’s loss of income, her mother’s diagnosis of dealing with the stress occasioned by the notoriety of the proceedings against added.) Contemporaneous with the creation of the Trust, Judge Coffey was

findings. that her conduct resulted in “no harm to any one [sic],” and accept the JCC’s system of government under law”). We therefore reject Judge Coffey’s assertion creation of the Trust was an isolated event, see diminishes public confidence in the judiciary and thereby does injury to the both the integrity and public perception of the judiciary. We agree. While the motives.” AJS Study caused the PCC to incur unnecessary costs in recovering its debt and injured whole into disrepute. See id. (explaining how a “violation of th[e] Code examine whether Judge Coffey’s conduct stemmed from “dishonest or selfish tarnished Judge Coffey’s reputation as a jurist and brought the judiciary as a caused by the misconduct – the JCC found that the conduct in question Finally, determining the nature of the conduct also requires us to With respect to the second factor – the extent of actual or potential harm Trust, and the fact that the PCC’s debt was ultimately satisfied, this conduct in RSA chapter 545-A. Despite the belated revocation of the transfers to the breaches Canons 1 and 2 of the Code and offends the public policies embodied this responsibility.” Id. As noted above, this case involves conduct that both impartiality of the judiciary is maintained by the adherence of each judge to of th[e] Code.” Sup. Ct. R. 38, Canon 1 commentary. “Public confidence in the it is axiomatic that judges “must comply with the law, including the provisions

demonstrates that Judge Coffey’s conduct stemmed from selfish motives. private residence. Accordingly, we find that the record sufficiently transactions to make improvements to, and build further equity in, the Coffeys’ from the Washington Road property. She then used the proceeds from these repaid, Judge Coffey sold the condominium and, in addition, withdrew equity creditor of her husband. After we issued our order requiring that the PCC be assets into the Trust, at least in part, to shield them from some prospective

mitigation. finding that the non-judicial nature of Judge Coffey’s conduct warranted implicates the appearance of impropriety). Consequently, the JCC erred in the administration of justice is more severe than misconduct that only Cf. Brown, 626 N.W.2d at 405 (explaining how misconduct that is prejudicial to this conduct, while technically private, affected the administration of justice. whether the judge was candid or less than forthcoming, AJS Study p. 21 in response to the JCC investigation. Under this factor, we must consider The fourth factor requires consideration of the actions Judge Coffey took

Professional Conduct Committee and the Judicial Conduct Committee.” Judge consequences of [her] misconduct” and “cooperated completely” with “both the asserts that she made “timely good faith effort[s] to . . . rectify [the] acts occurred by showing remorse, AJS Study, supra at 82. Here, Judge Coffey investigation by the [JCC]”), and whether the judge has acknowledged that the requests of the [JCC] for assistance and cooperation in the conduct of any 82; see also Sup. Ct. R. 40(8)(e) (“judges . . . shall comply with the reasonable

factor. properly considered Judge Coffey’s experience on the JCC as an aggravating discipline realm, substantial experience can “justify an increase behavior that the privilege of judicial service demands”). Accordingly, the JCC distinction is crucial because, as we have previously held in the attorney conduct” evidenced that the judge “was well familiar with the high standards of JCC, but rather because she was a member “for a number of years.” The 1998) (finding that a judge’s substantial experience “at the time of the charged not aggravate her sanction merely because she was a former member of the judges with substantial experience. Cf However, despite Judge Coffey’s assertions to the contrary, the JCC did. In re Gallagher, 951 P.2d 705, 716 (Or. sanction for attorneys with substantial experience applies with equal force to Jones’ Case, 137 N.H. 351, 360 (1993). The logic supporting an increase in representations) (quotation omitted); see also Coffey’s Case, 152 N.H. at 515; should have served to heighten his knowledge as to the appropriateness of his that an attorney’s twenty-eight years of experience appearing before courts of discipline to be imposed.” Basbanes’ Case, 141 N.H. 1, 8 (1996) (holding

whether a judge was informed of the impropriety of her actions). Fleischman, 933 P.2d at 569 (holding that consideration may be given to made her aware that her misconduct was offensive to the Code. Cf. the JCC to a heightened standard, absent some showing that her position “judges”). We agree that there is no basis for subjecting a former member of standard.” See Sup. Ct. R. 38 (applying the commands of the Code to all “is an unfair criticism, in that all judges should be held to the same high misconduct committed by a former JCC member is automatically more severe misconduct under the Code.” As noted by Judge Coffey, the suggestion that years, Judge Coffey should have been more aware of what would constitute The JCC also observed that “as a member of the [JCC] for a number of

emotional problems. Coffey’s culpability is abated to some degree by the existence of personal and time that she entered into the Trust. We, therefore, acknowledge that Judge time in question, they indisputably affected Judge Coffey’s judgment at the intention to thwart a court order or impede the collection of any just p. 22 continually maintained throughout the proceeding that “[i]t was never [her] woodwork and suing” Mr. Coffey. While we acknowledge that Judge Coffey discussions regarding the prospect of “some crazy client coming out of the JCC investigation, that she conceded that she and Mr. Coffey had some 22 not until she gave testimony to the JCC prosecutor, nearly five months into the current or prospective, when the trust was signed and later recorded.” It was broadly asserted that she “never had ANY intention of avoiding ANY debt, supports this finding. In her first correspondence with the JCC, Judge Coffey prospective debt. . . . fell far short of the admissions that were ultimately made.” The record her final acceptance that she and Mr. Coffey had considered at least some cooperat[ed]” in the investigation of this matter because her “earlier statements (emphasis added), her statements in her earlier letter do indeed conflict with with the JCC. The JCC observed that Judge Coffey had not “complete[ly] debt,” Nor can we find, on this record, that Judge Coffey completely cooperated

helpful in some respects and obstructive in others. See was sufficiently cooperative with the PCC to warrant mitigation. and entered into the settlement agreement, we cannot find that Judge Coffey Mitigation for cooperation is not warranted when a judge has been Therefore, even though she provided the documents requested by Niederman after Judge Coffey learned of the PCC’s intention to refer the matter to the JCC. estate”). Moreover, the PCC’s debt was not settled until November of 2006, may be satisfied by execution against the judgment debtor’s interests in real 486 (1984) (explaining how “a judgment creditor’s right to payment of money Wiebusch, New Hampshire Practice, Civil Practice and Procedure § 60.20, at valuable asset that could have permitted the PCC some recovery. See 5 R. informed the PCC of this transfer, even though the condominium was a proceeds to her benefit. The record does not show that either of the Coffeys the condominium, refinanced the Washington Road property, and applied the no efforts were being made at repayment, and, in spite of this knowledge, sold the fact remains that Judge Coffey was aware of the PCC debt, was aware that the existence of the [T]rust to impede the PCC’s collection efforts.” However, completely cooperative in that she assisted Niederman and “never interposed nearly eight months after our order. Judge Coffey asserts that she has been made or compromise offered until” the Coffeys received Niederman’s letter, [our order granting reimbursement to the PCC], no attempt at payment was the JCC’s concern that, “although some considerable funds were available after complete”). With respect to Judge Coffey’s cooperation with the PCC, we share 602, 608 (1998) (“cooperation is a mitigating factor only when total and

turn. demonstrated that she is remorseful. We address each of her arguments in Coffey also contends that mitigation is warranted because she has amply independent review of her credibility. Our well-settled rule is to refrain from p. 23 lied or deliberately deceived the JCC would require us to undertake an For us to look beyond the JCC’s finding and conclude that Judge Coffey

sworn statement.” she had “cooperated” by “responding in writing and voluntarily submitting to a did not find that Judge Coffey had lied and, indeed, went so far as to find that the JCC appears to have given deference to Judge Coffey’s credibility. The JCC 23 far short of the admissions that were ultimately made in the final Stipulation,” in her letter of January 2, 2007 and her statement to Attorney McLaughlin fell finding that Judge Coffey was less than forthright, see Apart from “express[ing] concern[] that Judge Coffey’s earlier statements assets, real and personal. Accordingly, we concur with the JCC’s implicit representations, the Trust was funded with a significant portion of the Coffeys’ property, and the condominium. Thus, in contrast to Judge Coffey’s essentially all the contents of the Pioneer Road property, the Washington Road the Coffeys also transferred into the Trust a nominal amount of cash and that was about it.” However, in addition to their real estate, as noted above, represented that she and her husband “put real estate into the [Trust], and Moreover, during her discussions with the JCC prosecutor, Judge Coffey

Judge Coffey’s argument that she “completely cooperated” with the JCC. misle[d] the referee about the extent of his misconduct.”). We therefore reject the respondent credit for cooperating with the disciplinary process when he have fully cooperated); see also Basbanes’ Case, 141 N.H. at 7 (“We cannot give (finding that an attorney who attempts to mislead the PCC cannot be found to statements to the JCC. See Fitzpatrick’s Case, 132 N.H. 211, 218 (1989) an unlikely defense), and find that she made evasive and misleading (explaining how consideration should be given to whether a judge has offered Washington Road property. approximately $38,546 was spent paying contractors for work on the AJS Study, supra at 82 that only $20,502 was used to pay off the credit card debt, and that Attorney Niederman had all th[e] records.” In fact, the record demonstrates there was any cash realized from the refinancing, but that “if there was, down.” She then went on to tell the JCC members that she did not “think” the bank wouldn’t [lend the money] unless the credit card debts were paid priority than the PCC obligation,” Judge Coffey testified that it was “[b]ecause a JCC panel member to explain why the other debts “were deemed more [of a] that it was because they paid other “more imminent” debts. When pressed by refinancing the Washington Road property was offered to the PCC. She replied Judge Coffey was questioned as to why none of the $77,635.96 she received in statements bordered on misleading. For example, during the JCC hearing, In addition, we also note that there were instances when Judge Coffey’s with societies engaged in the advancement of the legal profession, including the p. 24 Association’s “Lawyer in Every School” program and has been heavily involved Coffey has spent several years working with the New Hampshire Bar efficient and professional judge. In addition, the record indicates that Judge unanimous sentiment in these letters is that Judge Coffey is a conscientious, declined to comment on the conduct at issue here, the overwhelming and attorneys, and current and former judges. While many of these supporters Coffey has submitted twenty-five letters written by family friends, practicing 24 on the bench its due weight. As evidence of her positive reputation, Judge Under the last factor, we must give Judge Coffey’s reputation and record

JCC made no finding of remorse. Cf after reviewing all of the evidence and listening to Judge Coffey’s testimony, the Coffey asserted that she was “deeply and most sincerely apologetic.” However, memorandum. Similarly, in her final written statement to the JCC, Judge Coffey’s counsel put forward the same argument to the JCC in the hearing to mitigation because she has demonstrated that she is remorseful. Judge Finally, Judge Coffey also contends under this factor that she is entitled this record and our foregoing analysis, to deviate from the JCC on this matter. realization of” the seriousness of his conduct). We see no reason, based upon primarily from the prospect of being sanctioned, and “not from any recent mitigate the judge’s sanction where his late expression of remorse stemmed

the PCC has already determined the lawyer lied. See is to use an attorney’s deliberate deception as an aggravating factor only when similar reasons, we decline to do so here. That is why, for example, our settled practice in attorney discipline cases lied, and then considered that fact in determining an appropriate sanction. For instance, engaged in an independent review of the record, found that a lawyer correspondence to the PCC). In none of our cases have we, in the first respondent admitted, and the referee found, that the respondent had lied in ill-suited to determine deliberate deception in the first instance. See N.H. 602, 605 (1991) (holding that aggravation was warranted where motivations. Without an opportunity to observe the witness’ demeanor, we are other things, falsely answering bar counsel’s interrogatory); Astles’ Case, 134 the attorney had repeatedly engaged in dishonest conduct, including, among N.H. 169, 171-72 (1998) (disbarring attorney based upon referee’s finding that

witness’ veracity for truth must be permitted to stand). (explaining how the reasonably made findings of the trial court as to the

essence committed perjury requires a probing of the witness’ subjective has made apparently inconsistent statements, to conclude that the witness in Rancourt v. Town of Barnstead, 129 N.H. 45, 50 (1986). Even when a witness to be given to a witness’ testimony is a question of fact for the trial court.” engaging in such an inquiry out of recognition that “[t]he credibility and weight relies upon Snow’s Case p. 25 In arguing for us to affirm the three-month suspension, Judge Coffey

Snow’s Case 25 three-month suspension is required “to protect the integrity of the judiciary.” cooperation, we hold that a sanction far more severe than the recommended man he had ticketed was likely to be Judge Snow’s brother and spoke to an valid court order, and because it gave undue weight to Judge Coffey’s call. Id conveyances were fraudulent and that Judge Coffey acted with disregard for a. Immediately upon receiving the message, the officer realized that the officer, called and left a message at the police department requesting a return Because the JCC gave insufficient weight to the fact that the underlying learning of the citation, Judge Snow, who was acquainted with the police Judge Snow’s brother and issued him a citation for speeding. Id. at 620. Upon

impeded the execution of a supreme court order, a severe sanction is required. in a fraudulent conveyance, was less than forthright with the JCC, and presented in each case). Nevertheless, where, as here, a judge has participated sanctioning is ultimately more of an art than a science and turns on the facts Com’n Judicial Performance, 743 P.2d 919, 930 (Cal. 1987) (explaining how unique facts and affect the system of justice in a unique way. See Furey v. task. No matter how formulaic the analysis, each case will continue to present mitigation based upon her admirable reputation and record on the bench. Determining what constitutes an appropriate sanction is not an easy forthright. Finally, we agree with the JCC that Judge Coffey is entitled to record and indeed conflicts with the JCC’s finding that she was not completely V entitled to mitigation for cooperation. That finding is unsupported by the question. The JCC also erred to the extent that it held Judge Coffey was, 140 N.H. at 621. Coffey was suffering from emotional stress during some portion of the time in integrity and public perception of the judiciary, and acknowledge that Judge JCC’s finding that Judge Coffey’s conduct caused actual damage to the underlying conduct affected the administration of justice. We concur with the the JCC nevertheless erred in considering this fact as mitigation because the the commands of a court order. While these acts occurred in her private life, in serious misconduct by participating in a fraudulent conveyance and ignoring In sum, we conclude under the first factor that Judge Coffey has engaged

sanctioned. AJS Study

factor is favorable to Judge Coffey.

charges were ultimately dismissed as baseless and Judge Coffey was not JCC with regard to allegations that she had fallen asleep on the bench, those American Inns of Court. While Judge Coffey was previously brought before the authority to indefinitely suspend judges from judicial office. However, in In re p. 26 Indeed, we have never decided whether we have the constitutional time judge who had been suspended from the practice of law. In re Mussman Our only other relevant case presented the unique situation of a part-

authority to sanction a judge. We explained that “the judiciary has no power of Mussman, 112 N.H. 99, 100 (1972), we discussed the parameters of our

the disbarment order”), could petition to end his suspension and be reinstated. to the court, after having complied with the terms and conditions set forth in attorney may only apply for readmission to the bar of this State upon petition readmission of a suspended attorney); Sup. Ct. R. 37A (noting that a “disbarred attorney, see Sup. Ct. R. 37(14) (setting forth procedure for reinstatement and suspended from judicial office since he, like any suspended or disbarred sitting as a justice.” Id. at 57. Mussman, however, was not indefinitely the anomalous situation of an “attorney suspended from the practice of law . . . for “so long as he is . . . suspen[ded] from the practice of law” in order to cure 113 N.H. 54 (1973). There, we suspended the judge from sitting on the bench

evidence of Judge Coffey’s intent. Unlike Snow’s Case, here, as our analysis indicates, there is considerable or thing”), and would have presumably imposed a more severe sanction. commence, to induce a person to withhold “testimony, information, document less severe sanction than that in Snow’s Case to attempt, believing that an official proceeding or investigation is about to We disagree with Judge Coffey’s contention that her conduct merits a tampered with a witness, see RSA 641:5, I(b) (2007) (making it a class B felony public official from discharging the duties of his or her office), or that he had see RSA 642:1, I (2007) (making it a misdemeanor to hinder or obstruct a been present, we could have found that Judge Snow had obstructed justice, evidence refuting Judge Snow’s alleged innocent motive. If such evidence had impropriety” had been created, id. at 624, the record did not contain any Judge Snow’s intent as irrelevant to the issue of whether an “appearance of to the police officer. Id. at 624-25. Although we rejected the significance of argued that he had innocent motives at the time that he placed the phone call

628. we adopted the six-month suspension recommended by the JCC. Id. at 619, violation of Canons 1, 2(A) and 2(B) of the Code, id. at. 619, 624. As a result, innocently made, was sufficient to create an appearance of impropriety in id. at 624, we held that Judge Snow’s act of calling the officer, even if protestations that he had not called the officer with the intent to fix the ticket, summons was subsequently destroyed. Id. Despite Judge Snow’s the summons; Judge Snow informed his brother of the same; and the officer then called Judge Snow and informed him that he could “take care of” individual in his department about the procedure for “fixing” a ticket. Id. The p. 27 27

position, see Matter of Pekarski, 639 A.2d 759, 761-63 (Pa. 1994) (removing a conduct on the bench that is a gross abuse of the power attendant to the is more than one transgression in an otherwise long, unblemished career. See condom”), cert. denied, 519 U.S. 10 p. 27 27 (1996); (3) engaged in a pattern of sending “vulgar unsigned letters, one of which was accompanied by a used when courts exercise their authority to remove a judge, the judge’s misconduct harassed a female court employee by making anonymous phone calls and Moreover, our survey of cases from other jurisdictions indicates that McClain, 662 N.E.2d 935, 937, 944 (Ind. 1996) (removing a judge who sexually and drug paraphernalia); (2) sexually harassed court personnel, see Matter of 1991) (removing a judge who pled guilty to possession of marijuana, cocaine, convicted of soliciting prostitution); In re Sherrill, 403 S.E.2d 255, 256-57 (N.C. Koch, 890 P.2d 1137, 1137, 1139 (Ariz. 1995) (removing a judge who was judiciary, such as where a judge has: (1) committed a crime, see Matter of conduct that demonstrates an extreme disregard for the institution of the AJS Study, supra at 7-23 (collecting cases). Instead, courts remove judges for

“so long as he is under suspension from the practice of law,” Mussman by unconditionally suspending her for an indefinite period of time. power, it is unclear whether we have the authority to effectively remove a judge In contrast to Mussman, who was suspended from sitting as a judge for that neither the constitution nor the common law explicitly grants us this the executive and legislative branches have an explicit power to remove and action on her part would justify reinstatement. Because Mussman states that reinstatement, the suspended judge remains unaware of what, if any, further suspended judge could have the suspension lifted. Without any conditions for Mussman, 112 N.H. at 100. It is unclear whether or when the indefinitely is not explicitly granted to us by either the constitution or the common law. to removal, an option that we have never found to be within our authority and N.H. at 57, an unconditional indefinite suspension appears to be tantamount

barrier to its exercise.” Id. at 103 (citations omitted). when there was an established need for it and there was no constitutional tradition of the jurisprudence of this court to refuse to exercise judicial power Id. at 101 (citations omitted). We explained that “[i]t has never been the we have the authority “to take disciplinary action short of removal from office.” of the courts in this State,” and our “common-law powers,” we concluded that However, based upon our statutory power “to exercise general superintendence constitution or the common law,” id. (emphasis added; citation omitted). judiciary has not been granted the removal power by this method, either by the legislative proceeding,” id. (quoting N.H. CONST. pt. II, art. 73); and that “[t]he cause upon the address of both houses of the legislature’ is an executive and power of the Governor and Council to remove a state officer ‘for reasonable N.H. at 100 (citing N.H. CONST. pt. II, arts. 38, 39). We also noted that “[t]he impeachment” as that “is exclusively a legislative prerogative.” Mussman, 112 p. 28 28 Goldman In determining the length of suspension required beyond that imposed in

abusive towards an attorney at trial), to two years, see Disciplinary Proceedings Hocking, 546 N.W.2d 234, 245-46 (Mich. 1996) (judge was intemperate and filing attorney to certify that notice had been given to opposing party); Matter of entered temporary restraining order without following procedure requiring three days, see In re Jacobi, 715 N.E.2d 873, 874, 875 (Ind. 1999) (judge AJS Study attorney misconduct cases are only comparable to a limited extent, see, supra at 30, the suspensions imposed nationwide have ranged from this where “it is decided that censure is too lenient and removal too harsh,” attorney misconduct cases can provide some insight. While judicial and before us. Faced with this lack of helpful authority, examination of the other courts. As noted in the AJS Study, from 1990 to 2001, in cases such as other jurisdictions that addresses judicial misconduct similar to that currently, we are guided by the severity of suspensions applied to judges by We have not found, and neither party has provided, any case law from

of misdemeanor-level insurance fraud). the face of several mitigating circumstances, for an attorney who was convicted Case A factually similar case is In re Goldman, 156 N.H. at 370 (holding that a two-year suspension was appropriate, in “[e]ngag[ing] in semantical gamesmanship” to justify his actions), with Grew’s neglect petition, submitting said petition in an effort to harass, and one year for making misrepresentations about his ex-wife in an abuse and Compare Bruzga’s Case, 145 N.H. 62, 71-72 (2000) (suspending an attorney for imposed a sanction at least as severe as the one imposed in that case. with an attorney who engaged in the same conduct as Goldman, we would have from the practice of law for one year. Goldman, 795 N.Y.S.2d at 212. If faced orders. A disciplinary proceeding resulted in the attorney being suspended avoid a judgment, testified falsely at a deposition, and flouted certain court (App. Div. 2005), where an attorney made fraudulent transfers to his wife to

145 N.H. at 183, that is not to say that they are completely valueless.

appear more efficient under judicial performance metrics). similar conduct, ordered her clerk to back-date over forty cases in order to 73 (Fla. 1997) (removing a judge who, despite being previously warned about sixteen different occasions); Inquiry Concerning Johnson, 692 So. 2d 168, 172things, engaging in conduct prejudicial to the administration of justice on 968 P.2d 958, 991 (Cal. 1998) (removing a judge from office for, among other persistent course of misconduct, see Fletcher v. Com’n on Jud. Performance, after the defendant had paid his daughter $500); or (4) engaged in a knowing, an arrest warrant at the behest of his daughter and dropping the charges only of McKinney, 478 S.E.2d 51, 52, 54 (S.C. 1996) (removing a judge for issuing involving family friends and, in addition, accepting money from a party); Matter judge for failing to recuse herself from approximately thirty-three matters acts of misconduct.” Id p. 29 misconduct is not to punish the judge, but “to protect the public from further Finally, it is worth repeating that the purpose of the sanction for judicial

Indeed, the record shows a broad spectrum of respect for her as a judge. In beyond that of regular attorneys. See judicial responsibilities, or any parties, lawyers or cases that came before her. whole, judges must maintain standards of personal and professional care to be repeated, or that her misconduct has affected either the discharge of her the public’s perception of both the legal profession and the judiciary as a public. Nothing in the record suggests that Judge Coffey’s misconduct is likely positions in society. Because their misconduct is undeniably more harmful to her misconduct, our task is not to punish her personally, but to protect the However, as noted above, judges hold elevated and highly public . While Judge Coffey can and should be chastised for

than two years is necessary in this case. recognition of this heightened standard, we conclude that a suspension longer

whether we can “disbar” a judge. dishonesty when addressing the PCC); but, as discussed above, it is unclear several opportunities to acknowledge misconduct, and persisting in his obtain commercial financing for his home, continuing his deceit when given (disbarring attorney for repeatedly using dishonest and fraudulent means to answering bar counsel’s interrogatory); Astles’ Case, 134 N.H. at 604-06 filing bankruptcy petition after client instructed him not to do so, and falsely had filed bankruptcy petition, forging clients’ names to a bankruptcy petition, for his repeatedly dishonest conduct, including falsely informing client that he disbarment, see, e.g., Cohen’s Case, 143 N.H. at 171-72 (disbarring attorney suspension for false statement to a tribunal), other cases have involved client to give false answers); Bruzga’s Case, 145 N.H. at 63, 64-65 (one-year 149 N.H. 19, 21, 30 (2002) (one-year suspension for intentionally assisting While some cases have involved sanctions of less than two years, Feld’s Case, 71-72 (2007) (two and one-half year suspension for trust account violations). (two-year suspension for deceitful conduct); Coddington’s Case, 155 N.H. 66, suspension for insurance fraud); Bosse’s Case, 155 N.H. 128, 129-130 (2007) involving attorneys. See, e.g., Grew’s Case, 156 N.H at 362 (two-year Two years is also a frequently imposed suspension in recent cases

Concerning a Judge, 462 S.E.2d at 736 n.13. administration of justice occasioned by a judge’s lengthy absence. See Inquiry imposed because, at least in part, of the countervailing harm to the supra at 30 (collecting cases). Suspensions beyond two years are rarely generally abusive towards parties and court personnel). See also AJS Study, the same in a wastebasket by mistake on more than one occasion and been other things, brought a concealed weapon into court on multiple occasions, left Against Breitenbach, 482 N.W.2d 52, 52-53 (Wis. 1992) (judge had, among forthright with and made evasive and misleading statements to the JCC. I p. 30 and the JCC. I also agree with the majority that Judge Coffey was less than agree with the majority that Judge Coffey did not fully cooperate with the PCC “actual damage to the integrity and public perception of the judiciary.” I also caused the PCC to incur unnecessary costs in recovering its debt and inflicted residence. Additionally, I agree with the majority that Judge Coffey’s conduct monies to make improvements and to build equity in Judge Coffey’s private court’s order “stemmed from selfish motives,” which allowed use of the shielded the purpose of the intentionally fraudulent transfer and disregard of this So ordered affecting the administration of justice. I further agree with the majority that interfered with the commands of a valid supreme court order, thereby adversely creditors, including the PCC, an arm of this court, and that she ignored and she took valuable property and aided her husband in shielding it from that Judge Coffey was complicit in an intentionally fraudulent transfer because Judge Coffey engaged in serious misconduct. I also agree with the majority GALWAY, J., dissenting. I agree with the majority’s conclusion that

that she has engaged in no other conduct that violates the Code. (5) As a condition for her reinstatement, Judge Coffey must demonstrate JCC for its costs associated with this matter; and (4) As a condition of her reinstatement, Judge Coffey must reimburse the own expense; approved in advance by this court and completed at Judge Coffey’s

complete a comprehensive course in judicial ethics, which must be

DALIANIS, J.