This page is an unofficial mirror and is not legal advice. Verify the document against the official source before relying on it.
LD-2016-0005, Petition of Sanjeev Lath & a.
respondents — the ADO and Attorney Bisson — challenge the merits of the answer the questions raised in the petitioners’ request for reconsideration. The docket their grievance as a complaint, and that the CSC erred by failing to petition, the petitioners argue that the ADO and the CSC erred by declining to request for reconsideration, the CSC affirmed the ADO’s decision. In their filed by the petitioners against Attorney John F. Bisson. Upon the petitioners’ Complaint Screening Committee (CSC). The ADO had dismissed a grievance of the O ffice of General Counsel of the Attorney Discipline Office (ADO) and the petitioned for a writ of certiorari, see Sup. Ct. R. 11, challenging the decisions BASSETT, J. The petitioners, Sanjeev Lath and Barbara Belware, have
M. Simon and Joshua M. Wyatt on the brief), for John F. Bisson. Devine, Millimet & Branch, P rofessional Association, of Concord (Mitchell
counsel, on the brief), for the attorney discipline office. Janet F. DeVito, general counsel (Brian R. Moushegian, deputy general
Sanjeev Lath and Barbara Belware, self - represented parties, by brief.
Opinion Issued: February 3, 2017 Submitted: November 17, 2016
PETITION OF SANJEEV LATH & a.
No. LD - 2016 - 0005 Original
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well 2
Ct. R. 37A(II)(a) (5)(C), (a) (6). t he ADO may conduct a further investigation “as may be appropriate.” Sup. complaint, the respondent attorney must file an answer to the complaint, and complaint.” Sup. Ct. R. 37A(II)(a)(4)(C). Once a grievance is docketed as a “affirm the decision of the [ADO] or direct that the grievance be docketed as a at torneys and four “non - attorneys,” Sup. Ct. R. 37(5)(a). The CSC must either request is revi ewed by the CSC, id., a nine - member panel composed of five gr ievant may file a request for reconsideration. Sup. Ct. R. 37A(II)(a)(4)(C). The Sup. Ct. R. 37A(II)(a) (3)(C), (5)(A). If the ADO declines to docket a grievance, the docket s the grievance as a complaint — otherwise, the grievance is dismissed. If the ADO concludes that a grievance satisfies those requirements, it
certain other enumerated requirements. Sup. Ct. R. 37A(II)(a)(3)(A) - (B). jurisdiction of the attorney discipline system and whether the grievance meets determine whether the attorney in question is subject to the disciplinary R. 37A(I)(c). When a grievance is filed, the ADO reviews the grievance to that the grievant believes may constitute misconduct by an attorney.” Sup. Ct. grievance is a written submission that “call[s] to [the ADO’s] attention conduct grievance submitted by an individual. See Sup. Ct. R. 37A(II)(a)( 2)(A), (3)(A). A O ne of the responsibilities of the ADO is to conduct an i nitial review of a
see also Sup. Ct. R. 37A(III)(d)( 2)(C). Rules of Professional Conduct. See Young’s Case, 154 N.H. 359, 366 (2006); determined by clear and convinc ing e vidence that the attorney violated the An attorney may be disciplined under the Supreme Court Rules if it is Rules of Professional Conduct. N.H. R. Prof. Conduct Statement of Purpose. conduct for New Hampshire attorneys are set forth in the New Hampshire admitted to practice law in this State,” Sup. Ct. R. 37(1)(b). The standard s o f see Sup. Ct. R. 37, 37A, and has “disciplinary jurisdiction” over “[a]ny attorney The attorney discipline system is governed by the Supreme Court Rules,
in the future . . . .” Bosse’s Case, 155 N.H. 1 28, 131 (2007). preserve the integrity of the legal profession, and prevent similar [mis] conduct discipline is to protect the public, maintain public confidence in the bar, 490:4 (2010); s ee also Sup. Ct. R. 37, 37A. “[T]he purpose of attorney attorneys, Petition of Brooks, 140 N.H. 813, 817 (1996); RSA 311:8 (2015); RSA system to discharge our inherent and statutory authority to discipline see N.H. CONST. pt. II, art. 73 - a, we have established an attorney discipline system. Pursuant to our rule - making authority under the State C onstitution, We begin by providing background regarding the attorney discipline
dismiss the petition. this petition. B ecause we conclude that the petitioners lack standing, we petitioners’ claims, and also assert that the petitione rs lack standing to bring 3
petitioners’ argument to be that the CSC was required to respond to each explicitly answer question s po sed in a request for reconsideration, we read the Although the petitioners do not identify a rule that requires the CSC to the questions that the petitioners raised in their request for reconsideration. The petitioners further contend that the CSC erred by failing to answer
of Professional Conduct. find, by clear and convincing evidence, that Attorney Bisson violated the Rules docket their grievance on the basis that a hearing panel would be unlikely to investigation. They assert that the ADO and the CSC erred by declining to required the ADO to docket their grievance as a complaint and initiate an In their petition, the petitioners argue that the Supreme Court Rules
motion, and stating that “th[e] matter is now closed.” This petition followed. to the motion by letter, dated March 18, 2016, acknowledging receipt of the petitioners had raised in their request for reconsideration. The CSC responded Clarification” with the CSC, asking that the CSC answer the questions that the affirm ed the ADO’ s decision. T he petitioner s then filed a “Motion for letter dated February 25, 2016, t he CSC informed the petitioners that it had alleged errors in the ADO’s decision, which they labeled “[q]uestion[s].” In a dismissing their grievance. In their request, the petitioners listed a number of grievance satisfied the requirements for docketing and that the ADO erred by The petitioners filed a request fo r reconsideration, asserting that their
declined to docket the petitioners’ grievance as a complaint. recorded. Based upon the analysis of the petitioners’ allegations, the ADO the petitioners’ exhibits showed that, in fact, the meeting had not been a recording without the petitioners’ knowledge or consent, he noted that one of Rules of Professional Conduct. Regarding the claim that Attorney Bisson made not likely find clear and convincing evidence that” Attorney Bisson violated the explained the reasoning that led to his conclusion that “a hearing panel would in which he reviewed the allegations, assessed the claimed violations, and the ADO’s assistant general counsel sent a three - page letter to the petitioners, along with the exhibits that the petitioners provided. On January 15, 2016, The ADO reviewed the factual al legations in the petitioners’ grievance,
the petitioners’ knowledge or consent. Professional Conduct by, among other things, recording the meeting with out allege that, during the meeting, Attorney Bisson violated the Rules of represented the condominium associa tion at the meeting. T he pet itioners petitioners are unit own ers at Oak Brook Condominium. Attorney Bisson Condominium Owners’ Association, which took place in November 2015. The petitioners’ grievance arises out of the annual meeting of the Oak Brook On December 30, 2015, the petitioners filed a grievance with the ADO. The Turning to the present petition, t he record reflects the following facts. 4
Campai g n for Ratepayers Rights, 1 42 N.H. 629, 632 (1998) (assessing whether nature and purpose s of the attorney disciplinary system. See Appeal of disciplinary proceeding that is sufficient to confer standing, we examine the T o determine whether a grievant has a personal interest in an attorney
166 N.H. 308, 31 4 - 15 (2014). standing. Id. at 6 44 (quotation omitted); see also Appeal of N.H. Right to Life, in ensuring the “proper administration of the laws” — is not sufficient to confer mere general interest in an administrative proceeding — for example, an interest suffered by the public at large.” I d. at 646 (quotation omitted). Similarly, a not satisfy this requirement if his only injury is a “generalized wrong allegedly at 640 - 45 (discussing constitutional requirements for standing). A party does or will be “impaired or prejudiced” by the agency ’s decision. Duncan, 16 6 N.H. a petition for a writ of certiorari must show that his personal rights have been In other words, a person seeking to challenge an agency’s action through
omitted). tribunal.” Melton v. Personnel Comm’n, 119 N.H. 272, 277 (1979) (emphasis standing if his “rights may be directly affected by the decision of a lower context of a petition for a writ of certiorari, we have held that a party has (discussing constitutional signifi cance of the doctrine of standing). In the opinions.” Id. at 196; see also Duncan v. State, 166 N.H. 630, 6 41 - 43 (2014) judicial power ordinarily does not include the power to issue advisory 587 (200 0)). This requirement “rests upon the constitutional principle that the 195 (2008) (quoting Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, designed to protect.” Libertarian Party of N.H. v. Sec’y of State, 158 N.H. 194, on whether the party suffered a legal injury against which the law was Generally, “[i]n evaluating whether a party has standin g to sue, we focus
injustice.” Id. writ s sparingly and only where to do otherwise would result in substantial Children, 155 N.H. 528, 532 (2007). “We exercise our power to grant such arbitrarily, unreasonably or capricious ly.” Petition of Chase Home for observance of the law or has unsustainably exercised its discretion or acted whether the agency “acted illegally with respect to jurisdiction, authority or agency’s decision o n a petition for a writ of certiorari entails examination of MacDonald), 162 N.H. 6 4, 66 (2011); see Sup. Ct. R. 11 (1). Our review of an right, but rather at the discretion of the court. Petition of State of N.H. (State v. Certiorari is an extraordinary remedy that is not granted as a matter of
petition. We agree. However, they also argue that the petitioners lack standing to bring this T he respondents dispute the merits of the petitio ners’ arguments.
alleged violations of the Supreme Court R ules by the ADO and the CSC. specific question raised. Thus, all of the petitioners ’ claims on appeal relate to 5
general proposition, “a private citizen lacks a judicially cognizable interest in and to what extent, a victim may part icipate in a criminal prosecution. As a Our reasoning is similar to that employed when courts consider whether,
interest “results only from [his] status as a member of the public at large”). 204 (2d Cir. 2011) (stating that a complainant lacks standing because his disciplinary proceeding. See In re Attorney Disciplinary Appeal, 6 50 F.3d 202, legally cognizable interest of the grievant is implicated in an attorney regardless of how the ADO or the C S C ultimately address es a grievance, no Estate Appraiser Bd., 163 N.H. 34, 41 (2011) (quotation omitt ed). Simply put, negative decision that the [agency] may ultimately make.” Ruel v. N.H. Real proceedings before it . . . without creating a right in those parties to review a have observed, an agency may “per mit third parties to participate in the proceedings by virtue of his participation in the disciplinary process. As we 1559, 1567 (10th Cir. 1993). Nor does the grievant have a personal stake in pr oceeding is the lawyer involved,” Doyle v. Oklahoma Bar Ass n., 998 F.2 d 909, and “the only one who stands to suffer direct injury in a disciplinary attorney discipline is bestowed upon the public at large, Merski, 121 N.H. at cognizable injury when the attorney is not disciplined. Rather, the benefit of cognizable benefit when an attorney is disciplined, nor sustains a legally affected by, a disciplinary proceeding. T he grievant neither receives a legally n o personal right s or re medies of the grievant are adjudicated in, or directly Because attorney disciplinary proceedings are structured in this manner,
disciplinary proceeding, Sup. Ct. R. 37A(I)(j). charge, see Sup. Ct. R. 37(18), and that the complainant is not a party to the system, which make clear that a grievant may not control the prosecution of a 1999). This principle is reflected in the rules governing the attorney discipline malfeasance.” Akinak a v. Disciplinary Board, 9 79 P.2d 1077, 108 5 (Haw. his or her own rig hts, but to “supply evidence of the alleged attorney (quotation omitted). The grievant participates in the proceedings not to enforce to the conduct of the respondent [attorney].” Merski, 121 N.H. at 909 between parties litigant but rather are in the nature of an inquest or inquiry as As a consequence, disciplinary proceedings are not treated as “lawsui ts
Cotton, 587 N.W.2d at 699. trust.” State v. Merski, 121 N.H. 901, 909 (1981) (quotation omitted); see also and an attorney ’ s right to continue to practice a profession imbued with public “the real question at issue in a [disciplinary] proceeding is the public interest by an attorney,” Cotton v. Steele, 587 N.W.2d 693, 699 (Neb. 1999). Instead, exist “as a means of redress for one claiming to have been personally wronged 131. Attorney discipline is not intended to punish attorneys, id., nor does it maintenance of public confidence in the bar. See Bosse’s Case, 155 N.H. at the purposes of attorney discipline include the prote ction of the public and the reference to the nature of the c ommission’s d etermination). As noted above, parties had standing to appeal decision of Public Utilities Commission by 6
DALIANIS, C.J.
, and CONBOY and LYNN, JJ., concurred.
Dismissed.
See Libertarian Party of N.H., 158 N.H. at 19 6. disposition of their grievance, we dismiss the ir petition for a writ of certiorari. Accordingly, because the petitioners lack standing to appeal the
discipline system — to protect the public. 1085. To do so would contravene the essential purpose of the attorney interest to the private interests of the grievant. See, e.g., Akinaka, 979 P.2d at circumstances would shift the focus of the disciplinary process from the public reasoned that t o confer standing upon a private individual in these cases); Akinaka, 979 P.2d at 1084 - 8 6. We agree with those courts that have curiam); see also In re Attorney Disciplinary Appeal, 650 F.3d at 203 (collecting Statewide Grievance Committee, 133 A.3d 947, 9 51 (Conn. App. Ct. 2016) (per Investigation of an Att y., 867 N.E.2d 323, 324 - 25 (Mass. 2007); Rousseau v. disciplinary authority’s disposition of a grievance. See, e.g., In re Request for likewise held that a grievant does not have standing to challenge the standing. In reaching this conclusion, we join the many courts that have outcome of an attorney disciplinary proceeding that is sufficient to confer system, we conclude that a grievant does not have a personal interest in the Therefore, in light of the nature and purposes of the attorney discipline
attorney discipline system. judicial review of a criminal disposition — applies with equal force to the design of the criminal justice system, a victim does not have standing to seek and Procedure § 1.01, at 1 (2010). This logic — that, given the purpose and and the accuser. 1 R. McNamara, New Hampshire Practice: Criminal Practice an issue between the state and the accused,” rather than between the accused cases reflect the underlying principle that “[a] crime is a public wrong, raising charges, Gansz v. People, 888 P.2d 25 6, 25 8 - 5 9 (Colo. 1995) (en banc). These (collecting cases), or to contest the prosecutor’s decision to dismiss criminal Cooper v. District Court, 133 P.3d 692, 703 - 05 (Alaska Ct. App. 2006) 299, 300 (1981), to appeal the substantive rulings of the trial court, see, e.g., to intervene in the criminal case of the accused, see Rullo v. Rullo, 121 N.H. U.S. 614, 619 (1973). It is for this reason that, generally, a victim has no right the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410