LD-2011-010, Clauson's Case

investigating the incident. Mr. and Mrs. Gray attended a graduation party in

James L. Kruse Nathan Hamilton stated that he learned the following in the course of

their children. In the supporting affidavit for the arrest warrant, State Trooper morning of June 14, 2009, at the home he shared with his wife Brenda and was arrested for assault arising out of an incident that occurred early in the The record supports the following facts. On June 20, 2009, Todd Gray

affirm in part, reverse in part, vacate in part, and remand.

No. LD-2011-010 Professional Conduct Committee Because we find that the respondent violated only Rules 1.7 and 8.4(a), we

Hampshire Rules of Professional Conduct (Rules) 1.1, 1.7, 1.9(a), and 8.4(a). the practice of law for six months based upon its finding that he violated New Supreme Court Professional Conduct Committee (PCC) suspending him from

orally), for the respondent. Clauson & Atwood, of Hanover (K. William Clauson on the brief and reporter@courts.state.nh.us to press. Errors may be reported by E-mail at the following address: conduct committee.

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Court (Cirone

with Mrs. Gray for a hearing on the motion on June 23 in the Lebanon District

Motion for Immediate Hearing on Bail Conditions.” The respondent appeared respondent filed a motion entitled “Brenda Gray and Todd Gray’s Emergency telephone to obtain his consent to appear in the district court on his behalf, the

agreed to represent her in the matter. After speaking with Mr. Gray by court scheduled a trial to take place in November, the State agreed to place the The respondent represented Mr. Gray in his criminal case. After the

respondent, an attorney licensed to practice in New Hampshire since 1971, condition of the bail order so that Mr. Gray could return home. The June 22, Mrs. Gray sought the respondent’s assistance in lifting the no-contact condition of the bail order.

him not to contact Mrs. Gray or Amber or go within 100 yards of them. On commissioner, who released him on $500 personal recognizance and ordered that hearing. The court issued an order the next day lifting the no-contact After his arrest on June 20, Mr. Gray appeared before a bail

one and said she did not want the investigation to proceed.

discussion with the court about the matter. Mr. Gray did not speak during not afraid of her husband and wanted him to return home, and engaged in a presented a possible conflict of interest. Mrs. Gray then testified that she was written statement from Mrs. Gray later on June 14, but she declined to provide

expressed its concern that the respondent’s joint representation of the Grays Amber called the police, left the house. Trooper Hamilton returned to obtain a threw Mrs. Gray into a refrigerator, table, and chair, slapped her, and, after approached Mr. Gray and slapped him on the back of the head; Mr. Gray then

time agreed to represent him in the criminal case. At some point, the court hearing and entered a not guilty plea through the respondent, who had by that request the no-contact condition be lifted. Mr. Gray was also arraigned at that wall and slapped her in the face. After that, according to Amber, Mrs. Gray On June 30, the respondent again appeared on behalf of the Grays to

and had “some words” with her father, and in response he backed her into a after hearing the sound of the mirror breaking, she approached the bathroom however, declined to rule on the matter because Mr. Gray was not present. Gray, Hamilton located Amber and asked her what happened. She said that

victim in the case and wanted the no-contact condition lifted. The court, scratched him on the side of the neck. Some time after speaking with Mrs., J.). He told the court that Mrs. Gray did not consider herself a

punched the mirror in response to his wife’s “bickering,” and that she had and slapped Mrs. Gray in the face. Mr. Gray later told Hamilton that he had arose during which Mr. Gray broke a bathroom mirror, threw furniture over,

Hamilton that, after returning home with their daughter Amber, a dispute Vermont on the night of June 13 and became intoxicated. Mrs. Gray told interest under paragraph (a), a lawyer may represent a client if:

p. 3 (b) Notwithstanding the existence of a concurrent conflict of Sup. Ct. R. or by a personal interest of the lawyer. responsibilities to another client, a former client or a third person more clients will be materially limited by the lawyer’s (2) there is a significant risk that the representation of one or

finding of a violation must be supported by clear and convincing evidence. We first consider whether the respondent violated the Rules. The PCC’s

Clark’s Case

conflict of interest. A concurrent conflict of interest exists if: represent a client if the representation involves a concurrent

suspension, and required the respondent to complete an MPRE course and PCC found violations of each of the Rules, as charged, issued a six-month attorney conduct has occurred and, if so, what the sanction should be.” investigation and prosecution of the matter. After hearing oral argument, the

(a) Except as provided in paragraph (b), a lawyer shall not

A. Concurrent Conflict of Interest

to determine whether, on the facts found, a violation of the rules governing education seminars; and (4) payment of all expenses incurred in the

provides: The PCC first concluded that the respondent violated Rule 1.7(a), which

PCC’s factual findings if supported by the record, but retain ultimate authority and earn a 90% passing score; (3) attendance at twelve hours of continuing 37A(III)(d)(2)(C). “In attorney discipline matters, we defer to the requirement to take the Multistate Professional Responsibility Exam (MPRE) charged and recommended: (1) a sanction of three months suspension; (2) a

8.4(a). A hearing panel found that the respondent violated each Rule as respondent in August 2010 alleging violations of Rules 1.7(a), 1.9(a), 1.1, and The Attorney Discipline Office issued a notice of charges against the

behavior and completion of an anger management course. charges on file for one year without a finding, conditioned on Mr. Gray’s good p. 4 N.H. R. Prof. Conduct

behalf of the client. foreclose courses of action that reasonably should be pursued on

independent professional judgment in considering alternatives or

does, whether it will materially interfere with the lawyer’s likelihood that a difference in interests will eventuate and, if it require disclosure and consent. The critical questions are the

client. The mere possibility of subsequent harm does not itself

forecloses alternatives that would otherwise be available to the other responsibilities or interests . . . . The conflict in effect for the client will be materially limited as a result of the lawyer’s

never be materially limited by his responsibilities to the other.

consider, recommend or carry out an appropriate course of action interest exists if there is a significant risk that a lawyer’s ability to Even where there is no direct adverseness, a conflict of

Comment 8 to the ABA Model Rules explains further:

denied that the alleged assault even occurred, his representation of each would upon his review of the police file; and (3) that because both Mr. and Mrs. Gray representation of Mr. Gray in the underlying criminal case was contingent

aligned insofar as each wanted the no-contact order lifted; (2) that his of the Grays did not violate Rule 1.7: (1) that their respective interests were The respondent advances several arguments as to why his representation

and Mrs. Gray presented a significant risk that his representation of one would

written consent, our analysis is limited to whether his representation of Mr. Because the respondent does not contend that he obtained informed,

p. 5 incident that Mr. Gray had, in fact, assaulted her). But providing such advice

pronounced in light of her having told Trooper Hamilton on the night of the upon her prior statements to the court (a possibility made even more the no-contact order lest she later face exposure to cross-examination based

prudence might also dictate advising her to refrain from supporting removal of

and opt later to proceed as a willing witness for the prosecution. In that event, lawyer might have foreseen a possibility that Mrs. Gray would change her mind her to refrain from denying the assault took place. Similarly, a disinterested

notwithstanding substantial evidence to the contrary, and, accordingly, advised

to Mrs. Gray the risks of telling the court that the assault never happened bail hearing. A disinterested lawyer might have examined the facts, explained the respondent knew that Mrs. Gray had an obligation to tell the truth in the

provision and defending against the underlying assault charge. For example,

police file, it is undisputed that the respondent represented both the criminal assault charge was contingent upon receiving and reviewing the given, could have conflicted with Mr. Gray’s interest in removing the no-contact

Whether or not we accept that the respondent’s representation of Mr. Gray on Gray included an obligation to offer candid and independent advice which, if his representation of Mr. Gray. First, the respondent’s responsibilities to Mrs. risks that the respondent’s responsibilities to Mrs. Gray would materially limit We conclude that the joint representation presented several significant

conditions. 30 hearing, we limit our analysis of Rule 1.7 to the two hearings on the bail

convened for the purpose of lifting the no-contact condition of the bail order.

the respondent represented Mr. Gray in the general criminal case before respondent provided Mrs. Gray with any additional legal services after the June The second argument is also unpersuasive because the PCC found that Gray at the bail hearings. Because there is no evidence in the record that the usually a chance that their interests will, at some point, diverge.”). Mr. and Mrs.

dual representation” (citation omitted)); see solely upon the respondent’s representation of the Grays in the two hearings hearing. Moreover, the finding of a concurrent conflict may be predicated respondent entered a not guilty plea on Mr. Gray’s behalf at the June 30 June 30 hearing. The record supports that finding, particularly given that the

represents two or more parties with respect to the same subject matter there is Disqualification § 4.1, at 61 (2003) (“In a situation where a lawyer concurrently

but the risk that it or other material limitations may arise in the course of the Rule 1.7(a)(2)) “is broad, and focuses not upon direct adversity at the outset, See Wyatt’s Case, 159 N.H. 285, 298 (2009) (Rule 1.7(b) (the former version of responsibilities to one would materially limit his representation of the other. alignment of the Grays’ interests – not the risk that the respondent’s The first argument is unpersuasive because it pertains to the actual independent and disinterested advice to Mrs. Gray. See p. 6 against the charged crime could have compromised his ability to provide loyalties to Mr. Gray in seeking to lift the no-contact order and defend him

or not the respondent was in fact satisfied that there was no assault, his

‘materially limited’ by his responsibilities to each” – also lacks merit. Whether could be no occasion when . . . [the respondent’s] representation would be argument – that because the Grays denied the assault took place meant “there The foregoing discussion makes clear that the respondent’s third

likely be forced to withdraw. the respondent could not effectively advocate on behalf of Mr. Gray and would he presumably obtained when he initially interviewed her about the matter –

the respondent to use information “relating to the representation” – information

foregone conclusion. In the event that Mrs. Gray withheld her consent to allow order on June 30 did not make her continued support of her husband a Mrs. Gray’s informed consent, the fact that she supported lifting the no-contact

Rule 1.6 would allow the respondent to reveal such information if he obtained Amber told Hamilton that Mr. Gray had not only hit Mrs. Gray, but also

its reference to a lawyer’s “responsibilities to . . . a former client.” Although that Mrs. Gray told Trooper Hamilton that Mr. Gray had hit her and that representation.” Rule 1.7(a)(2) expressly applies to such a situation by virtue of represented a client in a matter” from revealing information “relating to the

palpable by the evidence the police had collected against Mr. Gray, including risk that the respondent’s loyalties would be divided was made even more limited by Rule 1.9(c)(2), which prohibits a lawyer who has “formerly upon the lawyer’s subjective belief about his ability to remain impartial.”). The

examine Mrs. Gray – an inevitable witness for the prosecution – would be 203, 209 (Del. 2011) (“Rule 1.7(a) is an objective standard and does not rely

witnesses against him as vigorously as possible. Yet his ability to crosstrial, the respondent’s obligation to Mr. Gray would be to cross-examine his representation of Mr. Gray were the case against him to proceed to trial. At The respondent’s responsibilities to Mrs. Gray could also materially limit

obvious clash with those of another.” (quotations omitted)). pedal’ his zeal in furthering the interests of one client in order to avoid an

in advising a client. See Rule 1.7(a)(2): divided loyalties that might inhibit the lawyer’s range of options

himself in a position where, even unconsciously, he will be tempted to ‘soft S.E.2d 256, 269 (W. Va. 2004) (“An attorney should not be permitted to put compelled to refrain from doing.”); Barefield v. DPIC Companies, Inc., 600 (In a conflict situation, “the evil . . . is in what the advocate finds himself relationship to a client.”); cf. Holloway v. Arkansas, 435 U.S. 475, 490 (1978) 1 (“Loyalty and independent judgment are essential elements in the lawyer’s

presented the primary risk arising from a concurrent conflict of interest under contact condition and defending against the criminal case. This situation loyalty.” Wyatt’s Case p. 7 owes to a former client: [t]he duty to preserve confidences and the duty of

Rule 1.9 protects former clients by recognizing “the twin duties an attorney

have opposed

former client gives informed consent, confirmed in writing. materially adverse to the interests of the former client unless the substantially related matter in which that person’s interests are

the same as or substantially related to the bail hearing, Mrs. Gray appeared to

the Rules of Professional Conduct . . . .” See

client. Id substantially related matter; and a lack of consent on the part of the former not thereafter represent another person in the same or a present client; representation of the present client in the same or a

respondent’s brief representation of Mr. Gray. Cf. Wyatt’s Case, 159 N.H. at

the criminal case against her husband throughout the

evidence in the record. Even accepting that the criminal case was a “matter” The PCC’s finding of a Rule 1.9(a) violation lacks clear and convincing which provides: “It is professional misconduct for a lawyer to . . . violate . . . Because the respondent violated Rule 1.7(a), he also violated Rule 8.4(a),. at 304-05.

A lawyer who has formerly represented a client in a matter shall the former client; materially adverse interests between the former client and a four elements: a valid attorney-client relationship between the attorney and conflict. See, 159 N.H. at 304. A violation of Rule 1.9(a) consists of he could provide effective and diligent representation notwithstanding the

address it.

provides: The PCC also found that the respondent violated Rule 1.9(a). That rule

unwaivable because the respondent could not have “reasonably believed” that B. Successive Conflict of Interest The PCC also determined, without elaboration, that this conflict was

was impaired by his obligation to advocate effectively for Mr. Gray. See for her husband given that the State was pursuing the charges against him did not obtain informed consent under Rule 1.7(b)(4). Thus, we need not to the disposition of the matter because it is undisputed that the respondent

N.H. R. Prof. Conduct 1.7(b)(1). This conclusion was unnecessary

violated Rule 1.7(a)(2) when he represented both Mr. and Mrs. Gray. that clear and convincing evidence supports a finding that the respondent Prof. Conduct 1.7, ABA Model Code Comment 8. Thus, we agree with the PCC

Mrs. Gray either to stay silent at the bail hearing or to reconsider her support pushed her into a table and a refrigerator. The respondent’s ability to counsel p. 8 Id

undertaken is completed with no avoidable harm to the client’s interest.

(5) attention to details and schedules necessary to assure that the matter

(4) proper preparation; and

C. Competence

those areas to the client’s attention;

conflict. assault, the undisputed facts do not support the PCC’s finding of a successive

(3) identification of areas beyond the lawyer’s competence and bringing

(2) performance of the techniques of practice with skill;

find a Rule 1.9 violation had Mrs. Gray changed her position about the alleged

. 1.1(b).

but to actual adverse interests. Accordingly, although we might be inclined to

practices; based upon a risk (1) specific knowledge about the fields of law in which the lawyer Moreover, to the extent that the PCC found a violation of Rule 1.9(a) the representation of one or more clients. Rule 1.9 refers not to possibilities legal competence: in which a lawyer’s responsibilities to “a former client” might materially limit Prof. Conduct 1.1(a). Rule 1.1(b) establishes the minimum requirements for Rule 1.7(a)(2) expressly contemplates such risks by its reference to situations 1.1: “A lawyer shall provide competent representation to a client.” N.H. R. Finally, the PCC found that the respondent was incompetent under Rule

matter are in responsibilities, but at those attorneys whose client’s interests in a current

Gray’s interests at all, much less “materially” so. client’s wishes). Thus, her interests cannot be said to have been adverse to Mr. attempting to establish permanent guardianship over client, against former Rule 1.9(a) violation was predicated on a risk of divergent interests arising, substantially related matter. Indeed, to the extent that the PCC’s finding of a

fact materially adverse to those of a former client in the same or a

that the representation of one client could be infringed by a lawyer’s other with the rule’s text. Rule 1.9 is directed not at attorneys facing a possibility

of a conflict arising, such an interpretation is inconsistent

guardianship proceedings and subsequently represented conservator 305 (material adversity present where attorney formerly represented client in required was more than that of a “general practitioner.” See

p. 9 N.H. R. Prof. Conduct

point lacks clear and convincing evidence that the basic level of proficiency which resulted in Mr. Gray avoiding trial. The PCC’s determination on this contact order a week later at the June 30 hearing and in negotiating a plea

lawyer of established competence in the field in question. respondent lacked significant general

Gray was required to be present for that hearing. The PCC cites Rule 3.4(c),

whether it is feasible to refer the matter to, or associate or consult with, a relatively simple objective of removing the no-contact order. Although the the preparation and study the lawyer is able to give the matter and experience, the lawyer’s training and experience in the field in question,

accomplish Mrs. Gray’s stated desire to be reunited with her husband as soon representation as a bail modification hearing, nor does it explain why his though unsuccessful, appears to have been reasonably calculated to competency under Rule 1.1.”). Indeed, the respondent’s June 23 appearance, the court on behalf of Mrs. Gray violated “the rules of the tribunal” because Mr. Second, the PCC concluded that the respondent’s first appearance before

upon Mr. Gray – did not require highly specialized knowledge or skill. See Conduct 1.1, ABA Model Code Comment 1.

motion to dismiss). The scope of that representation was limited to the complexity and specialized nature of the matter, the lawyer’s general

since 1971, was unqualified to assist the Grays in such a limited law generally is not required in order to meet the minimum standards for Richmond’s Case, 152 N.H. 155, 158 (2005) (“[E]xpertise in a specific area of

objective for which the Grays hired him – to remove the no-contact order placed

A.2d 331, 351-52 (Md. 2009) (attorney incompetent for failing to respond to and skill in a particular matter, relevant factors include the relative. Attorney Grievance v. Gisriel, 974

In determining whether a lawyer employs the requisite knowledge

hearing. not explain why the respondent, an attorney practicing law in New Hampshire

“requisite knowledge and expertise” to represent Mr. Gray in the bail condition address in turn. First, the PCC concluded that the respondent lacked the violation of Rule 1.1. The PCC’s decision rested on four grounds, which we We conclude that there was not clear and convincing evidence of a

criminal case against him constituted a Rule 1.1 violation. conclude that the respondent’s representation of Mr. Gray in the subsequent clients in the matter of removing the no-contact order. The PCC did not The PCC determined that the respondent violated Rule 1.1 as to both the circumstances. p. 10 appearance was on behalf of both Gray did not have standing to make such a request, the respondent’s June 23

are determined in part by what is at stake conclusion that the respondent conducted an insufficient investigation under objective of reuniting Mrs. Gray with her husband, we reject the PCC’s person seeks to lift a no-contact order. Moreover, even assuming that Mrs. representation and the short period of time the respondent had to achieve the

hearing for that purpose. Moreover, “[t]he required attention and preparation

was his practice to grant requests to waive the defendant’s presence when a more extensive investigation into the facts. Given the limited nature of the

condition and accompanied the respondent and Mrs. Gray to the June 23

acknowledged as much in his testimony before the PCC when he stated that it seek immediate removal of the no-contact order did not lend themselves to a notwithstanding that she is not a named party to the case. Judge Cirone would remain in effect. The circumstances surrounding Mrs. Gray’s request to opportunity to be heard with respect to an aspect of the order that affects her, representation was whether the no-contact condition of Mr. Gray’s bail order

complexity and consequence.” N.H. R. Prof. Conduct

Trooper Hamilton, who supported the Grays’ attempt to lift the no-contact grounds to believe that their interests were aligned. He also spoke with respondent spoke with both Mr. and Mrs. Gray and had objectively reasonable

contact order in a domestic violence case cannot, at the very least, request an Comment 5 (emphasis added). Here, the only thing at stake in the initial

transactions ordinarily require more extensive treatment than matters of lesser

The record does not support this conclusion. Rather, it indicates that the therefore, did not understand the “respective interests of Mr. and Mrs. Gray.” Third, the PCC ruled that the respondent “failed to investigate” and, authority for the proposition that the purported victim protected by a nocontact order lifted amounted to incompetent representation. have standing” to challenge the no-contact order, we have found no legal PCC’s determination that the respondent’s June 23 attempt to have the no- understand that Mrs. Gray was not a party to the criminal case and did not Contrary to the PCC’s conclusion that the respondent “failed to Mr. and Mrs. Gray. Thus, we reject the

knowingly violate District Division Rule 2.3. the trial” because trial had not yet begun. Thus, the respondent did not

trial, and at the imposition of the sentence.” Dist. Div. R. requires the defendant’s presence at the “arraignment, at every stage of the

arraignment nor sentencing, and cannot reasonably be construed as a “stage of hearing on the motion to lift the no-contact provision was neither an

under the rules of a tribunal.” The relevant rule of the district court, however, which provides that a lawyer “shall not . . . knowingly disobey an obligation p. 11 Affirmed in part; reversed in Mrs. Gray on Mr. Gray’s behalf. Cf sanction.

that the respondent placed Mr. Gray at risk of violating the order by contacting vacate the sanction and remand to the PCC to reconsider the appropriate correctly recognized the extent of his violations of the Rules. Accordingly, we cannot be confident that the PCC’s sanction would have been the same had it

at the bail condition hearings, the record lacks competent evidence to establish put Mr. Gray at risk of violating that condition through his joint representation or otherwise.” Notwithstanding the PCC’s determination that the respondent 11 clear and convincing evidence that he violated only Rules 1.7(a) and 8.4(a). We of Rules 1.1, 1.7(a), 1.9(a), and 8.4(a). We have found, however, that there was The PCC based the respondent’s six-month suspension on his violation

convincing evidence that the respondent violated Rule 1.1. In light of the foregoing, we conclude that the PCC lacked clear and

any facts indicating that Mr. Gray so directed him or that he so obliged.

the defendant “shall have no contact with Brenda Gray . . . by mail, telephone

behalf in reaching out to Mrs. Gray, neither the PCC’s order nor its brief cites

communications” between Mr. Gray and Mrs. Gray. The bail order states that (establishing parameters for permissible contact post-Kidder

was not “significant.” See counsel to mistakenly believe that any risk of a conflict arising under Rule 1.7 seeking to lift the no-contact provision – might have led even competent

treaded close to the line of impermissible contact had he acted on Mr. Gray’s rule from Kidder might support an inference that the respondent would have of being in violation of the no contact order” because he “facilitated). Although the contacts the victim through an attorney”); RSA 173-B:5-a (Supp. 2011) Finally, the PCC determined that the respondent “placed Mr. Gray at risk properly be found guilty of violating a protective order when he knowingly (in related context of RSA 173-B:4 (2002), holding that a defendant “may

Here, however, the limited nature and scope of the initial representation –

of interest constitutes incompetent representation in violation of Rule 1.1. circumstances, a gross and inexcusable failure to evaluate a potential conflict independent basis for a Rule 1.1 violation, it may be true that, in some potential conflicts of interest.” To the extent that this finding served as an The PCC also stated that the respondent “failed to evaluate the actual or p. 12 12

DALIANIS, C.J.