In re Clauson

164 N.H. 183

53 A.3d 621

In re CLAUSON'S CASE.

No. LD–2011–010.

Supreme Court of New Hampshire.

Argued: June 14, 2012.

Opinion Issued: Sept. 18, 2012.

James L. Kruse, of Concord, on the brief and orally, for the professional conduct committee.

Clauson & Atwood, of Hanover (K. William Clauson on the brief and orally), for the respondent.

LYNN, J.

The respondent, K. William Clauson, appeals an order of the Supreme Court Professional Conduct Committee (PCC) suspending him from the practice of law for six months based upon its finding that he violated New Hampshire Rules of Professional Conduct (Rules) 1.1, 1.7, 1.9(a), and 8.4(a). Because we find that the respondent violated only Rules 1.7 and 8.4(a), we affirm in part, reverse in part, vacate in part, and remand.

I

The record supports the following facts. On June 20, 2009, Todd Gray was arrested for assault arising out of an incident that occurred early in the morning of June 14, 2009, at the home he shared with his wife Brenda and their children. In the supporting affidavit for the arrest warrant, State Trooper Nathan Hamilton stated that he learned the following in the course of investigating the incident. Mr. and Mrs. Gray attended a graduation party in Vermont on the night of June 13 and became intoxicated. Mrs. Gray told Hamilton that, after returning home with their daughter Amber, a dispute arose during which Mr. Gray broke a bathroom mirror, threw furniture over, and slapped Mrs. Gray in the face. Mr. Gray later told Hamilton that he had punched the mirror in response to his wife's "bickering," and that she had scratched him on the side of the neck. Some time after speaking with Mrs. Gray, Hamilton located Amber and asked her what happened. She said that after hearing the sound of the mirror breaking, she approached the bathroom and had "some words" with her father, and in response he backed her into a wall and slapped her in the face. After that, according to Amber, Mrs. Gray approached Mr. Gray and slapped him on the back of the head; Mr. Gray then threw Mrs. Gray into a refrigerator, table, and chair, slapped her, and, after Amber called the police, left the house. Trooper Hamilton returned to obtain a written statement from Mrs. Gray later on June 14, but she declined to provide one and said she did not want the investigation to proceed.

After his arrest on June 20, Mr. Gray appeared before a bail commissioner, who released him on $500 personal recognizance and ordered him not to contact Mrs. Gray or Amber or go within 100 yards of them. On June 22, Mrs. Gray sought the respondent's assistance in lifting the no-contact condition of the bail order so that Mr. Gray could return home. The respondent, an attorney licensed to practice in New Hampshire since 1971, agreed to represent her in the matter. After speaking with Mr. Gray by telephone to obtain his consent to appear in the district court on his behalf, the respondent filed a motion entitled "Brenda Gray and Todd Gray's Emergency Motion for Immediate Hearing on Bail Conditions." The respondent appeared with Mrs. Gray for a hearing on the motion on June 23 in the Lebanon District Court (Cirone, J.).He told the court that Mrs. Gray did not consider herself a victim in the case and wanted the no-contact condition lifted. The court, however, declined to rule on the matter because Mr. Gray was not present.

On June 30, the respondent again appeared on behalf of the Grays to request the no-contact condition be lifted. Mr. Gray was also arraigned at that hearing and entered a not guilty plea through the respondent, who had by that time agreed to represent him in the criminal case. At some point, the court expressed its concern that the respondent's joint representation of the Grays presented a possible conflict of interest. Mrs. Gray then testified that she was not afraid of her husband and wanted him to return home, and engaged in a discussion with the court about the matter. Mr. Gray did not speak during that hearing. The court issued an order the next day lifting the no-contact condition of the bail order.

The respondent represented Mr. Gray in his criminal case. After the court scheduled a trial to take place in November, the State agreed to place the charges on file for one year without a finding, conditioned on Mr. Gray's good behavior and completion of an anger management course.

The Attorney Discipline Office issued a notice of charges against the respondent in August 2010 alleging violations of Rules 1.7(a), 1.9(a), 1.1, and 8.4(a). A hearing panel found that the respondent violated each Rule as charged and recommended: (1) a sanction of three months suspension; (2) a requirement to take the Multistate Professional Responsibility Exam (MPRE) and earn a 90% passing score; (3) attendance at twelve hours of continuing education seminars; and (4) payment of all expenses incurred in the investigation and prosecution of the matter. After hearing oral argument, the PCC found violations of each of the Rules, as charged, issued a six-month suspension, and required the respondent to complete an MPRE course and pass the examination. The respondent appealed.

II

We first consider whether the respondent violated the Rules. The PCC's finding of a violation must be supported by clear and convincing evidence. Sup.Ct. R. 37A(III)(d)(2)(C). "In attorney discipline matters, we defer to the PCC's factual findings if supported by the record, but retain ultimate authority to determine whether, on the facts found, a violation of the rules governing attorney conduct has occurred and, if so, what the sanction should be." Clark's Case, 163 N.H. 184, 187–88, 37 A.3d 327 (2012).

A. Concurrent Conflict of Interest

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

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

...

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Comment 8 to the ABA Model Rules explains further:

Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests.... The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

N.H. R. Prof. Conduct 1.7, ABA Model Code Comment 8.

Because the respondent does not contend that he obtained informed, written consent, our analysis is limited to whether his representation of Mr. and Mrs. Gray presented a significant risk that his representation of one would be materially limited by his responsibilities to the other.

The respondent advances several arguments as to why his representation of the Grays did not violate Rule 1.7 : (1) that their respective interests were aligned insofar as each wanted the no-contact order lifted; (2) that his representation of Mr. Gray in the underlying criminal case was contingent upon his review of the police file; and (3) that because both Mr. and Mrs. Gray denied that the alleged assault even occurred, his representation of each would never be materially limited by his responsibilities to the other.

The first argument is unpersuasive because it pertains to the actual alignment of the Grays' interests—not the risk that the respondent's responsibilities to one would materially limit his representation of the other. See Wyatt's Case, 159 N.H. 285, 298, 982 A.2d 396 (2009) ( Rule 1.7(b) (the former version of Rule 1.7(a)(2) ) "is broad, and focuses not upon direct adversity at the outset, but the risk that it or other material limitations may arise in the course of the dual representation" (citation omitted)); see also R. Flamm, Lawyer Disqualification § 4.1, at 61 (2003) ("In a situation where a lawyer concurrently represents two or more parties with respect to the same subject matter there is usually a chance that their interests will, at some point, diverge.").

The second argument is also unpersuasive because the PCC found that the respondent represented Mr. Gray in the general criminal case before the June 30 hearing. The record supports that finding, particularly given that the respondent entered a not guilty plea on Mr. Gray's behalf at the June 30 hearing. Moreover, the finding of a concurrent conflict may be predicated solely upon the respondent's representation of the Grays in the two hearings convened for the purpose of lifting the no-contact condition of the bail order. Whether or not we accept that the respondent's representation of Mr. Gray on the criminal assault charge was contingent upon receiving and reviewing the police file, it is undisputed that the respondent...