2017-0137, Town of Goshen v. Carl N. Casagrande

indictment alleges that, in May 2017, the respondent, “believing that an indictment for felony witness tampering. See RSA 641:5 (2016). The The respondent’s interim suspension stems from his August 2017

the referee’s recommendation. (Duggan, J.) recommended that the suspension remain in effect. We agree with respondent, John F. Gallant, from the practice of law. A Judicial Referee LYNN, J. This case arises out of the interim suspension of the

orally), for the respondent. Preti Flaherty, PLLP, of Concord (William C. Saturley on the brief and

counsel, on the brief and orally) for the attorney discipline office. Janet F. DeVito, general counsel (Brian R. Moushegian, deputy general

No. LD - 2017 - 0010 Original

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 p. 2 22 as well 2

respondent asked to speak with her. E.F. told the police that the respondent J une p. 2 29, 2017 police interview, E.F. said that, before the hearing began, the the protective order. Also present were the respondent and his client. In a The following day, E.F. appeared without counsel for the final hearing on

different judge. having me hear the case, just let me know and I’ll find you a work it out. If for some reason you feel t hat there’s an iss ue You can certainly sit down with Attorney Barry and see if you can’t you can do one of two things on the underlying restraining order. issue and I’ll be happy to wo rk with you. I’m here tomorrow, so THE COURT: I am sure that the two of you can resolve this

[THE RESPONDENT]: Yes.

side here; however, sit down with Attorney Barry. THE COURT: No, sir, I can’t discuss that without the other

obviously there’s nothing we can do without the other side, but -restraining order, because it was an ex parte hearing. So, yea h, quick question. I think we’re back on tomorrow on the underlying [THE RESPONDENT]: Thank you, Judge. I actually just got a

p resent, and at which the following colloquy occurred: his client, and a police officer from the Nashua Police Department were On May p. 2 23, t he court held a bail review hearing at which the respondent,

was reduced to $ p. 2 2,000. which E.F. was represented by Attorney William Henry Barry, the client’s bail bail was set at $25,000. On May 18, at a hearing on the criminal charges at order and three counts of theft by unauthorized taking. Originally, the client ’s client was arres ted and charged with four counts of violating the protective basis. Before the final hearing on E.F.’s petition took place, the respondent’s Circuit Court (Moore, J.) issued a temporary protective order on an ex parte temporary order of protection against the respondent’s client. On April 28, t he 164 N.H. 93, 96 - 97 (2012). In April 2017, E.F. applied for a domestic violence documents submitted to us, are as follows. See Lawrence v. Philip Morris USA, The relevant facts underlying the indictment, gleaned from the

this[,]’ and ‘[c]an’t you just drop it’ or words to that effe ct.” (Bolding omitted.) court by telling [her,] ‘I spoke to the judge yesterday; he doesn’t want to hear and former law partner, “to withhold testimony and/or information from the attempted to induce or otherwise cause E.F.,” the former girlfriend of his client by his client as well as a hearing on said restraining order, . . . purposely investigation was pending regarding an alleged violation of a restraining order p. 3 3

stated “The Judge wants this to go away.” wants this to go away.” I said “What?” [The respondent] then re respondent] looked at me and immediately stated “The Judge Once I closed the conference room door and sat down, [the

he asked the respondent to speak with him: Topham reported that, after speaking with the victim/witness advocate,

H earing in p. 3 3 months at which time the Order would be D ismissed.” that would be issued that day was valid for 1 year, there would be a Review [E.F.] needed to sign an Agreement that[,] even though the Restraining O rder reported that, according to E.F., the respondent had stated “because of this[,] to the Judge and he wants this to go away.” The victim/witn ess advocate also advocate reported that, according to E.F., the responde nt had said, “I’ve spoken that order, E.F. had been approached by the respondent. The victim/witness against the respondent’s client and that, before the start of t he final hearing on victim “had previously come to Court to obtain a Permanent Restraining Order” According to Topham, the victim/witness advocate further advised that the Topham that E.F. “was present and wished the charges. . . to go forward.” victim/w itness advocate. When he did so, the victim/witness advocate advised would speak with the respondent after speaking with the department’s about the matter. Topham reported that he told the respondent that Topham prosecutor for the Nashua Police Department, approached the respondent a pretrial conference in the criminal case. Donald C. Topham, police In June 2017, the respondent appeared at court on his client’s behalf for

whole matter would be dropped.” room to speak with him,” and that he “was trying to get her to leave so that the the respondent “was trying to get her to miss her hearing by going to another to a restraining order of only thirty days.” E.F. reported that she believed that just drop it” ? E.F. advised that the respondent “tried to convince her to agree violence protective order. E.F. said t hat the respondent then asked, “Can’t you referring to an April 27 incident described in her petition for a domestic client’s] record,” to which E.F. responded that “chainsaws look really bad,” the domestic violence protective order “was going to look really bad on [his doesn’ t want to hear this.” E.F. told the police that the respondent said that hearing held on the prior day and stated, “I spoke to the j udge yesterday; he to speak with her. E.F. said that the respondent referred to the bail review E.F. told the police that, shortly thereafter, the respondent agai n asked

confirmed that he had not spoken with the respondent. then claimed that he had already spoken with Barry. E.F. called Barry, who that she was uncomforta ble doing so. E.F. told the police that the respondent asked, “[C] an’t we come to an agreement out of court,” to which she responded p. 4 4

advised “that he never had a private, off - the - record conversation with [the “I can’t ever imagine saying to anyone I want this to go away.” Judge Moore E.F., Judge Moore asked, “Why would I say that?” Judge Moore further stated, When the police advised Judge Moore of the respondent’s alleged statements to court hearing, the audio record of that hearing would reflect any conversation.” respondent] had approached the bench to speak with [him] during a recorded respondent] that was not on the court record,” and “that even if [the he “had no independent recollection of having any conversation with [the and could not think of a reason why he would do so.” Judge Moore stated that advised that “he did not recall ever bringing [the respondent] into c hambers domestic violence protective order and the criminal proceedings. Judge Moore The police also interviewed Judge Moore, who presided over both the

the respondent “never called the office or left a message there.” on his cellphone from [the respondent],” and that his office staff confirmed that or the protective order. Barry advised that “he never received an email or cal l Barry stated that he never spoke to the respondent about the criminal charges

Judge Moore said [E.F.] did not need to be at court. that [the respondent] told her he had talked with Judge Moore and hearing on the temporary restraining order. [E.F.] further advised [the respond ent] that [E.F.] did not need to be present for the that he had spoken with Atty Barry and that Atty Barry had told [E.F.] advised that [the respondent] approached her and told her

telephoned him from the courthouse on May 2 p. 4 4. According to Barry: statement, the police interviewed Barry, who confirmed that E.F. had The police investigated the respondent’s statements. After taking E.F.’ s

engaged in witness tampering. command” about them and about the possibility that the respondent had respondent’s] comments. . . that [he] immediately notified [his] chain of Topham stated that he “was sufficiently concerned about the nature of [the

had been and was still in a different part of the Courthouse . . . . I informed [the respondent] that the victim was in fact present and

and she’s not here.” [The respondent] then stated “I’ve been sitting in the Courtroom

the victim was present and wished the case to go forward. I then told [the respondent] that this was not going away and that

won’t show up.” [The respondent] then added “The victim wants this to go away and p. 5 5

law. order directing the respondent’s immediate suspension from the practice of Therefore, the referee recommended that the court not lift its September 13 preserve the integrity of the legal profession and to protect the public. evidence that the respondent’s interim suspension was necessary both to court. The referee found that the ADO had proved by a preponderance of the On October 10, the referee filed his report and recommendation with the

terms of the profes sional conduct committee’s order. suspension was never imposed because the respondent complied with the suspension had been stayed for two years. The ADO stated that the had been suspended from the practice of law for six months and that the respondent’s counsel agreed that, for th o se ethical violations, the respondent his statements to others, see N.H. R. Prof. Conduct 4.1. Both the ADO and the his ethical duty of candor to the tribunal, see id., and his duty to be truthful in prior disciplinary matter, the respon dent had been found to have violated both Prof. Conduct 3.3. In its hearing memorandum, the ADO asserted that, in the disciplined for violating his ethical duty of candor to the tribunal. S ee N.H. R. the hearing, his counsel agreed that the respondent had previously been instant disciplinary matter “is the first accusation against him of this kind,” at Although the respondent stated in his hearing memorandum that the

tran scripts, and court documents. proof based upon an agreed - upon set of documents, including police reports, profession.” See i d. That hearing was held on September 26 upon offers of protection of the public and the preservation of the integrity of the legal recommendation to the court as to whether suspensi on is necessary for the suspension from the practice of law should be lifted,” and to “make a the judicial referee to hold a hearing on whether the respondent’s “interim suspension. S ee Reiner’s Case I, 1 p. 5 52 N.H. at 167. Thereafter, we appointed On September 15, the respondent requested a hearing on the interim

II). (200 p. 5 5) (Reiner’s Case I); Reiner’s Case, 152 N.H. 594, 597 (2005) (Reiner’s Case Sup. Ct. R. 37(9)(i), 37(16)(d), (f); see also Reiner’s Case, 152 N.H. 163, 168 to protect the public and to preserve the integrity of the legal profession.” See [the respondent’s] immediate suspension from the practice of law is necessary September 13, we ordered that, “considering the nature of the alleged felony, office (ADO) filed a certified copy of the indictment with thi s court. On witness tampering. See RSA 641:5. In September 2017, the attorney discipline In August 2017, the respondent was indicted by a grand jury for felony

wanting to hear the matter in court.” respondent] and never said anything about wanting the case to go away or not p. 6 6

Reiner’s Case I. Rule 37(9)(a) allows the court to suspend an attorney upon the that this case is governed by Rule 37(9) and the procedure we set forth in a nd recommendation. In his hearing memorandum, the respondent conceded respondent raised them for the first time in his challenge to the referee’s report We decline to address the merits of those arguments because the

substantial harm,” as set forth in Rule 37(9 - A)(d). suspension would ad equately safeguard the public against the threat of neglecting to “consider whether measures short of continuing the interim forth in Rule 37(9 - A)(d). Similarly, he asserts that t he referee erred by evidence standard instead of the clear and convi ncing evidence standard set respondent argues that the referee erred by applying the prep onderance of that Rule 37(9 - A) governs this case. See Sup. Ct. R. 37(9 - A). Specifically, the The respondent ’s first two arguments are premised upon his contention

597. suspension is necessary under Rule 37(1 p. 6 6)(f).” Reiner’s Case II, 152 N.H. at rulings de novo and “retain the ultimate authority to determine whether Lawrence, 164 N.H. at 96 - 97 (quotation s omitted). We review the referee’s legal documents upon which he based his decision “are av ailable for our perusal.” proof, based upon an agreed - upon set of documents, and because all of the findings of the referee in this case because he decided the case on offers of However, we are permitted to “give less than ordinary deference” to the factual reached the same decision as the refe ree.” Reiner’s Case II, 152 N.H. at 597. discipline case, reviewing only “whether a reasonable person could have Ordinarily, we defer to the factual findings of a referee in a lawyer

at 5 97. Ct. R. 37(1 p. 6 6)(f); see Reiner’s Case I, 152 N.H. at 168; Reiner’s Case II, 152 N.H. public”; and (2) “the preservation of the integrity of the legal profession.” Sup. charges when doing so is deemed necessary for: (1) “the protection of the We may impose an interim suspension pending the resolution of su ch felony attorney,” whenever that attorney “is indicted or bound over for any felony.” as it deems necessary, including but not limited to the suspension of [an] Supreme Court Rule 37(9)(i) manda tes that the court “take such actions

argument to address the issues the respondent listed in his notice of challenge. report and recommendation. Subsequently, we ordered briefing and oral On October 2 p. 7 7, the respondent filed a notice of challenge to the referee’s 7

“immediate danger of irreparable harm,” has “no adequat e remedy at law,” and party seeking a preliminary injunction must show that the party is in Dep’t of Envtl. Servs. v. Mottolo, 155 N.H. 5 p. 7 7, 63 (2007) (explaining that the apply the standards used in [issuing] preliminary injunctive relief.” See N.H. The respondent next asserts that the referee erred because he “refused to

this case is governed by Rule 3 p. 7 7(9 - A) to be waived. his argument s before the re feree, we deem the respondent’s argument s that referee was required to consider whether a lesser sanction w ould suffice. Given that an interim suspension was not necessary; he never contended that the of the evidence. Moreover, in that memorandum, the respondent argued only burden was to prove both prongs of the Reiner’s Case I test by a preponderance the integrity of the legal profession.” Id. at 16 9. He also stated that the ADO’s suspension is necessary for the protection of the public and the preservation of had to establish “that, considering the allegations in the indictment, the In his hearing memorandum, the respondent acknowledged that the ADO

legal profession.” Reiner’s Case I, 152 N.H. at 1 p. 7 70. suspension necessary for the protection of the public and the integrity of the “show that the respondent’s alleged c onduct in the alleged crimes makes not to prove that the respondent committed the crimes alleged,” but rather to Acco rdingly, we have explained that the ADO’s burden at the hearing “is

profession.” Id.; see Sup. Ct. R. 3 p. 7 7(16)(f). protection of the public and the preservation of the inte grity of the legal charges pursuant to Rule 37(9)(i) when it is deemed necessary for the may impose an interim suspension pending the resolution of [felony] criminal provides the requisite standar d. Id. at 168. Thus, we have held that “the court the rule in the context of related rules and have concluded that Rule 37(16)(f) the court may exercise its discretion in suspending an attorney,” we have read Similar ly, although Rule 37(9)(i) “does not set forth a standard by which

suspension is necessary by a preponderance of the evidence. Id. At the hearing, the ADO bears the burden of proving that an interim and be held before the court or before a referee, at the court’s discretion. Id. 152 N.H. at 16 p. 7 7. Such a hearing must take place within 30 days of its request hearing to occur promptly so as to comply with due process.” Reiner’s Case I, post - suspension hearing,” we have interpreted it “to require a post - suspension Although Rule 37(9)(i) “does not provide a procedural framework for a

including suspension, upon an attorney’s indictment for a felony. R. 3 p. 7 7(9)(a), (b). Rule 37(9)(i) authorizes the court to impose discipline, attorney’s conviction for a f elony or certain enumerated lesser crimes. Sup. Ct. p. 8 8

N.H. at 16 p. 8 8 - 6 9. protect the public and the integrity of the legal profession. Reiner’s Case I, 152 additional evidence submitted, the respondent’s suspension is necessary to are true, but rather to show that, considering the allegations and any mindful that the ADO’s burden is not to prove that the indictment allegations Reiner’s Case I, 152 N.H. at 168; Reiner’s Case II, 152 N.H. at 597. We are preservation of the integrity of the legal profession.” Sup. Ct. R. 37(16)(f); see suspension is necessary for: (1) “the protection of the publi c”; and (2) “the conclude that the ADO has proved by a preponderance of the evidence that the To retain in effect the respondent’s interim suspension, we must

37(16)(f). Reiner’s Case II, 152 N.H. at 597. ultimate authority to determine whether suspension is necessary under Ru le make the same factual determinations that he made, and we retain the same paper record and offers of proof as were before the referee lead us to we give no deference to the referee’s f indings, our independent review of the suspension. We do not specifically address those challenges because, even if findings and recommendation that we not lift the respondent’s interim The respondent’s remaining arguments challenge the referee’s factual

mandated by the plain language of Rule 37(9)(i). based upon a felony indictment is proper, we hold that their application is not considerations relevant to a determination as to whether an interim suspension Although the standards for issuing preliminary injunctions may include suspension upon an attorney based upon the filing of an indictment). as one of the jurisdic tions with a specific rule regarding imposing an interim Akron L. Rev. 65, 9 p. 8 8 & n.146, 112 & n. 232 (2014) (identifying New Ham pshire Suspensions in the Lawyer Regulatory Process — A Preliminary Inquiry, 47 Sup. Ct. R. 37(9)(i); see Arthur F. Greenbaum, Administrative and Interim the suspension” of an attorney who is “i ndicted or bound over for any felony.” court to “take such actions as it deems necessary, including bu t not limited to Trujillo nor Varallo involved rules similar to Rule 37(9)(i), which requires the 979, and People v. Varallo, 913 P.2d 1, 6 (Colo. 1996). However, n either In making this argument, the respondent relies upon Trujillo, 24 P.3d at

2001). restraining orders. See In re Discipline of Trujillo, 24 P.3d p. 9 972, 979 (Utah they should be issued based upon the same standards that apply to such Am. Bar Ass’n, Annotated Standards for Imposing Lawyer Sanctions 66 (2015), “[i]nterim suspensions function similarly to civil temporary restraining orders,” is “li kely [to] succeed on the merits”). The respondent argues that, because 9

it is undisputed that the respondent was previously disciplined for dishonesty. forward, when, in fact, she wanted the criminal case to be pursued. Moreover, respondent told Topham that the victim did not want the criminal case to go him the same thing. Addi tionally, the ADO presented evidence that the that the respondent made this statement, and Barry confirmed that E.F. told that he had spoken to Barry, when, in fact, he had not done so. E.F. reported the respondent. The ADO presented evidence that the respondent told E.F. Additionally, the ADO presented evidence of other misrepresentations b y

“go away.” that he did not want to hear the domestic violence case or that he wanted it to domestic violence case. There was no evidence that Judge Moore indicated respondent “sit down with” Barry, E.F.’s attorney, to “wor k. . . out” the communication. At most, Judge Moore suggested on the record that the the ADO presented evidence that, in fact, there had been no such Moore had indi cated that he did not want to hear the domestic violence case, constituted misrepresentations. Although the respondent told E.F. that Judge the ADO presented evidence that the respondent’s alleged statements to E.F. The ADO also supplemented the indictment’s allegations. For instance,

criminal case to “go away.” Topham, the respondent said that Judge Moore and the victim wante d the that Topham attributes to the respondent in the criminal case. According to doesn’t want to hear this.” It is also substantially similar to the statement s statement E.F. attributes to the respondent, “I spoke to the j udge yesterday; he Judge and he wants this to go away.” This is substantially similar to the victim/witness advocate, E.F. was told by the respondent, “I’ve spoken to the respondent’s statement alleged i n the indictment. According to the 37(16)(f)”). The ADO presented evidence that corroborates E.F.’s account of the the public,” the allegations alone were insufficient to “meet both prongs of Rule supplement the al legations or to show that the respondent pose[d] a threat to where the ADO did not offer “any additional evidence . . . to corroborate or allegations in the indictment); Reiner’s Case I I, 152 N.H. at 5 p. 9 98 (deciding that, at 168 (in meeting its burden of proof, the ADO need not rely solely upon the We also consider the additional evidence presented by the ADO. See id.

special relationship that the respondent could exploit. and the judge had an ex parte communication and that the two shared a had met privately with the judge. This statement implies that the respondent not relying upon what Judge Moore said in the courtroom, but instead that he statement, “I spoke to the judge yesterday,” suggests that the respondent was who s aid that he did not want to hear the domestic violence matter. The information from the court by telling her that he had spoken with Judge Moore, self - represented victim in a domestic violence matter, to withhold testimony or The indictment alleges that the respondent sought to induce E.F., the p. 10 10

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

suspension. Reiner’s Case I test are met, we decline to lift the respondent’s interim threat to clients or to the public”). Accordingly, because both prongs of the made false statements or engaged in other conduct which poses an immediate because there was no allegation that the attorney had “misused client[] funds, 598 (holding that interim suspension was not required to protect the public preserve the integrity of the legal profession. See Reiner ’s Case II, 152 N.H. at respondent’s interim suspension is necessary to protect the public and sufficient to establish, by a preponderance of the evidence, that the evidence presented b y the ADO, we hold that the evidence in this case is Considering the allegations in the indictment as well as the additional

all times to be truthful.” Id. (quotation omitted). Id. (quotation omitted). “Accordingly, it is the responsibility of every attorney at public trust and requires an unswerving allegiance to hones ty and integrity.” Bosse’s Case, 155 N.H. at 131 (quotation omitted). “Lawyering involves a law includes “the concomitant responsibilities of truth, candor and honesty.” officers of the court is undermined”). This is because t he privilege of practicing lawyers engage in dishonest conduct, “public confidence in the integrity of 209 (stating that, because “[t]he public expects lawyers to be honest,” when “than a lie.” Id. (quotations and brackets omitted); see Am. Bar Ass’n, supra at the legal profession” and erodes public confidence in the bar more completely 155 N.H. 128, 132 (2007). “No single transgression reflects more negatively on p rofession is substantial whenever an attorney is dishonest. See Bosse’s Case, are part of a pattern of dishonesty. The injury to the public and to the statements to E.F. about Judge Moore are not isolated, but instead, if proved, The evidence in this case demonstrates that the respondent’s alleged