This page is an unofficial LFoD record and is not legal advice. Verify the document against the official source before relying on it.

Appeal of Joseph S. Hoppock, Esquire

October 23, 2024 - Brief

Official source

Case records

Open case page

Docket: LD-2024-0005

Date	Record Text	Type	Party	PDF
April 24, 2025	Appeal of Hoppock	Opinion	Supreme Court	Pre-Reporter
December 31, 2024	2024 Fourth Quarterly Status Report	Supreme Court case status list	-	PDF
November 13, 2024	Appeal of Joseph S. Hoppock, Esquire	Oral argument text	Joseph S. Hoppock, Esquire; Appeal of Joseph S. Hoppock, Esquire
November 13, 2024	Nov 13 2024	Supreme Court oral argument calendar	-	PDF
October 23, 2024	Appeal of Joseph S. Hoppock Current page	Brief	Appeal of Hoppock	PDF
October 3, 2024	Appeal of Joseph S. Hoppock, Esquire	Brief	Attorney Discipline Office	PDF
September 30, 2024	2024 Third Quarterly Status Report	Supreme Court case status list	-	PDF
September 3, 2024	Appeal of Joseph S. Hoppock	Brief	Appeal of Hoppock	PDF
June 30, 2024	2024 Second Quarterly Status Report	Supreme Court case status list	-	PDF

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

CASE NO. LD-2024-0005

APPEAL OF JOSEPH S. HOPPOCK

from a decision of the Professional Conduct Committee

REPLY BRIEF OF RESPONDENT

ATTORNEY JOSEPH S. HOPPOCK

Submitted by:

William C. Saturley (Bar No. 2256)

Kat Mail, Esq. (Bar No. 274914)

Preti, Flaherty, Beliveau, & Pachios, PLLP

P.O. Box 1318

57 North Main Street

Concord, NH 03302-1318

(603) 410-1500

TABLE OF AUTHORITIES 3

CASES........................................................................... ERROR! BOOKMARK NOT DEFINED. REPLY ARGUMENT 4

I. The ADO presents and applies the incorrect standard of review 5

II. The ADO ignores the portions of Rule 37A that allow the parties to waive oral argument and that mandate specific procedures if the parties do so 6

III. The PCC’s mandate that the parties orally argue issues that neither contested was not harmless error 7

IV. The PCC rendered an improper factual finding when it determined that Respondent sent the letter with the objectively obvious and primary intention of burdening the grievant 9

V. The ADO does not contest that the PCC’s sanctions ruling was based upon Respondent’s subjective intent, despite its prior ruling that he acted only with objective intent 11

TABLE OF AUTHORITIES

Cases Appeal of Farmington Sch. Dist., 168 N.H. 726 (2016) 10

Appeal of Nguyen, 170 N.H. 238 (2017) 7

Fleet Bank-NH v. Christy's Table, Inc., 141 N.H. 285 (1996) 5

O’Meara’s Case, 164 N.H. 170 (2012) 5

Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62 (2012) 5

Welch v. Gonic Realty Trust Co., 128 N.H. 532 (1986) 7

Statutes and Rules N.H. Sup. Ct. Rule 37(2)(c)(3) 6, 7

N.H. Sup. Ct. Rule 37(4)(c) 6

N.H. Sup. Ct. Rule 37A(III)(d)(2)(C) 8

N.H. Sup. Ct. Rule 37A(III)(d)(2)(E) 6

REPLY ARGUMENT

The only body that heard first-hand testimony related to the presence of a rule violation

was the first Hearing Panel. The only body that heard first-hand testimony related to the

appropriate sanctions was the second Hearing Panel. The PCC, sitting in an appellate capacity

commensurate with that of this Court, found it fitting to substitute its judgment for that of both

bodies. The ADO fails to provide any justification for the PCC’s overstepping.

The first Hearing Panel, having heard testimony from Respondent and received evidence

including the May 20, 2019 letter (“the Letter”), unanimously found that Respondent committed

no rule violation. Neither party contested any aspect of the first Hearing Panel’s order. That should

have been the end of this case. Instead, it has dragged on for over five years because the PCC

forced the ADO to take up the helm of appellant, manufactured contested issues where none

existed prior, and refused to exercise the appropriate level of deference to the first Hearing Panel.

The ADO attempts and fails to justify the PCC’s actions by employing an incorrect version of the

standard of review.

The unfairness caused by the PCC’s lack of deference intensified when a second Hearing

Panel sanctioned the Respondent on the grounds that he wrote the Letter with a knowing

(subjective) mental state—in direct contradiction with the PCC’s Remand Order. The PCC should

have rejected the second Hearing Panel’s ruling as clearly erroneous. It did not. Instead, it imposed

an even harsher sanction than the second Hearing Panel recommended—resulting in the

Respondent losing the ability to earn an income for two months. The PCC’s inattention to the

Supreme Court Rules at every stage of this matter deprived Respondent of his right to a fair

attorney discipline process, and its violations and sanctions decisions should be vacated.

I. The ADO presents and applies the incorrect standard of review. Citing to O’Meara’s Case, 164 N.H. 170 (2012) 1

II. The ADO ignores the portions of Rule 37A that allow the parties to waive oral argument and that mandate specific procedures if the parties do so. Rule 37A provides that parties may “waive” oral argument. Rule 37A(III)(d)(2)(B). And the rule sets forth in a separate section what is to happen if the parties do so: (E) If neither disciplinary counsel nor the respondent requests oral argument, the professional conduct committee may direct the parties to appear before it on stipulations and shall make its decision in all matters based on the hearing panel report, the hearing transcript, and any memoranda that may be filed or, for stipulations, on the record agreed to by the parties and any oral statements presented by the parties. Rule 37A(III)(d)(2)(E). The ADO has no cogent explanation for why this Court should disregard the plain language of this rule and the canons of construction set forth in Respondent’s brief. The best the ADO musters is that Rule 37A(III)(d)(2)(E) must be read in conjunction with Supreme Court Rule 37(3)(c)(3).2 See Pet. Brief at 19-21. But Rule 37(3)(c)(3) is just a enabling provision that creates the PCC and gives it the “power and duty” to, among other things, “consider hearing panel reports and written memoranda of disciplinary counsel and respondents, ” “conduct oral arguments” and “determine whether there is clear and convincing evidence of violations of the rules of professional conduct.” Rule 37(3)(c)(3). There is no inconsistency between this general provision and the more specific directive contained in Rule 37A(III)(d)(2)(E). Rule 37 creates the PCC and enables it to govern certain proceedings; Rule 37A provides specifics about how those proceedings must be governed. III. The PCC’s mandate that the parties orally argue issues that neither contested was not harmless error. The ADO asserts that the PCC’s decision to mandate oral argument despite the parties waiving it was harmless. Pet. Br. 17, 23. The ADO reasons that, even if there had been no oral argument in this case, the PCC “could have” reached the same result. Id. The ADO misapplies the doctrine of harmless error. “An error is considered harmless if it is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party asserting it.” Appeal of Nguyen, 170 N.H. 238, 245- 46 (2017) 20, 2019

letter to Brandy Wells was obnoxious and rude and should not be encouraged, but the ADO has not established by clear and convincing evidence that said letter … has its PRIMARY purpose to embarrass, delay or burden Roof. Accordingly, the Committee concludes there has not been a violation of Rule 4.4(a), nor of Rule 8 4

concerning professional misconduct.

Appx. Vol. I at 9. Without justification, the PCC interpreted this ruling as pertaining only to the

knowing (subjective) variant of Rule 4.4(a), not the “objectively obvious” variant. Appx. II at 52-

53. But neither the PCC nor the ADO can identify anything about the above indicating that the

Hearing Panel failed to consider the “objectively obvious” variant and factor it into its order. Even

if the Hearing Panel had neglected to do so, the PCC should have remanded.

On its crusade to reverse the Hearing Panel rather than remand, the PCC determined that

remanding would be useless because the objectively obvious variant of Rule 4.4(a) “is not an issue

that depends on an assessment of witness credibility, ” but rather depends only on the language of

the Letter itself. Appx. Vol. II at 53. The PCC’s determination is problematic on two fronts: First,

determining that the Letter is the only evidence pertinent to Respondent’s “objectively obvious”

intent is, itself, a factual determination outside the purview of the PCC. Second, as set forth in

Respondent’s brief, the notion that an objective assessment is dependent only on the Letter’s plain

language, without regard for the circumstances under which it was drafted, is fundamentally

flawed.

Page 31 of the ADO’s objection is a microcosm of what is wrong with the ADO’s position

on appeal:

Mr. Hoppock testified at length regarding his purpose and goal in sending the May

20, 2019 letter. The PCC reviewed the entire record, and was unpersuaded that Mr.

Hoppock’s ‘primary purpose’ was simply to educate Ms. Roof about her exposure

or set forth an appropriate demand letter.... The PCC reviewed exhibits that

reflected that Mr. Hoppock’s first demand of Ms. Roof … was not made in good

faith and had an obvious primary purpose to burden Ms. Roof.

Pet. Brief at 31 (emphases added). Perhaps recognizing the PCC’s error in considering only the

Letter in its “objectively obvious” analysis, the ADO has contradicted its former position and

posits that the PCC did consider the whole record when assessing Respondent’s objective intent.

And even if the PCC did consider testimony and exhibits beyond the Letter itself, it does not matter

that the PCC is “unpersuaded” by the Hearing Panel’s findings. All that matters is whether the

Hearing Pane’s findings were clearly erroneous—the PCC is required to uphold factual findings

of the Hearing Panel, even if it disagrees with them, and may not reweigh evidence. Appeal of

Farmington Sch. Dist., 168 N.H. 726, 730 (2016) (in a case applying the “clearly erroneous”

standard, asserting that “our task is not to determine whether we would have found differently or

to reweigh the evidence”). The ADO cannot and does not posit a credible justification for the

PCC’s failure to remand this matter.

Turning to the character of an objective analysis, the ADO attempts to distinguish the

contract interpretation analogy provided by Respondent. Pet. Brief at 32-33. The ADO is right that

interpretation of a letter is not the same as interpretation of a contract. In contract law, two parties

have endeavored to express their joint intentions in writing, with the expectation that they will be

bound by the language agreed upon. In that context, it makes sense to bind parties to the contract’s

plain and unambiguous language, which is a negotiated expression of the parties’ intent, and

consider context only when necessary. When interpreting a letter composed by one author without

the benefit of negotiation, and when the analysis intersects the tricky issue of style, it behooves the

reader to look beyond the words to ascertain the author’s intentions. Where, as here, the author of

the letter has testified, it is absurd to disregard his testimony as irrelevant. In attempting to rebut

Respondent’s contract law analogy, the ADO underscores Respondent’s point and disregards the

true relevance of the contracts caselaw cited by Respondent: it undermines the PCC’s cramped

understanding of what an “objective” analysis entails.

V. The ADO does not contest that the PCC’s sanctions ruling was based upon

Respondent’s subjective intent, despite its prior ruling that he acted only with

objective intent.

It is undisputed that the Hearing Panel unanimously found that Respondent did not

knowingly (subjectively) send the Letter with the primary purpose of burdening the grievant. This

factual finding was never challenged or reversed. Nonetheless, the Hearing Panel and PCC selected

sanctions for Respondent on the basis that he had a knowing (subjective) mental state when he

wrote the Letter. As the ADO observes, Respondent was sanctioned on the basis that he “hoped, ”

“wanted, ” and “desired” to burden the grievant.3 Pet Brief at 36. These are findings of subjective

intent that contradict the factual findings rendered at the violation stage of the proceeding.

The ADO does not deny the discrepancy, but justifies it on the basis that “the issue of

mental state for purposes of the sanction analysis focuses on a different analysis, that is the ABA

Standards analysis.” Pet. Brief at 36. But the Attorney Discipline system surely aims base its

sanctions upon the rule violations found. To that end, the Attorney Discipline system surely does

not permit the ADO to relitigate the rule violation at the sanctions stage of the proceeding. After

the violations stage of the proceedings concluded, Respondent reasonably believed he was to be

sanctioned for sending a letter with an obvious (objective) intention to burden the grievant, but not

a knowing (subjective) intention. He presented his case to the second Hearing Panel accordingly.

He could not have expected the second Hearing Panel would render new findings related to his

mental state, when that issue was already fulsomely explored and settled at the violations stage.

For the foregoing reasons, the orders of the PCC should be vacated.

Respectfully submitted, JOSEPH S. HOPPOCK By his attorneys, PRETI FLAHERTY BELIVEAU & PACHIOS, PLLP William C. Saturley Date: October 23, 2024 __________________________________ William C. Saturley, Esq. (NHBA #2256) 410-1500

CERTIFICATE OF SERVICE

I, Kat Mail, Esquire, hereby certify that on this 23rd day of October 2024 a copy of the foregoing has been timely provided through the Court’s electronic service filing system to all counsel of record.

William C. Saturley William C. Saturley, Esq. (NH Bar #2256)

WORD COUNT CERTIFICATION

I hereby certify that the foregoing brief complies with Supreme Court Rules 16(11) and 26(7) and contains 2, 991 words, excluding the cover page, Table of Contents, and Table of Authorities.

Footnotes

The PCC has the limited ability to make factual findings when it acts as a factfinder and receives evidence directly. This circumstance is not at play here or in O’Meara’s Case. 2 The ADO erroneously cites Rule 37(3)(c)(2), but quotes Rule 37(3)(c)(3).
The ADO falsely asserts that the Respondent “testified regarding his intention to frighten” the grievant. But the cite provided by the ADO leads to irrelevant testimony on another topic. Regarding his intentions, Respondent gave the following testimony: I was trying to offer a carrot and a stick. … I specifically quoted the language [the grievant] used, "hurt an elderly woman and took her for $80, 000, and she lost her home, " closed quote. I wanted to be sure she was aware of what specific language I was concerned about on behalf of my client. … And I wanted to make a point that we had a problem here, and if she chose not to solve it, it’s going to be a bigger problem. Appx. Vol. II at 109:13-110:3.