N.H.’s New Rules on Disciplining Unethical Attorneys Stir Debate

June 6, 2007

Arthur Ginsberg says lies by his ex-wife’s divorce lawyer harmed his daughters, forced him into bankruptcy and damaged his reputation — yet the well-connected lawyer got off with a warning.

The lawyer, John P. Griffith, says he didn’t even merit a warning: He was simply advocating vigorously for his client based on the evidence he had.

Earlier this year, the state Supreme Court approved temporary rules aimed at speeding up disciplinary proceedings against unethical lawyers. A hearing was scheduled this week on whether to make the rules permanent.

The new rules let staff lawyers at the Attorney Discipline Office or a complaint screening committee of lawyers and non-lawyers dismiss complaints quickly if it’s unlikely they can be proved by “clear and convincing evidence.”

Supporters say that will ease a years-long backlog of unresolved complaints.

“Not only are the attorneys getting bogged down with these complaints and grievances that hang over their heads for months or years, the complainants suffer,” said Richard Uchida, who helped write state ethics rules and defends lawyers charged with misconduct.

But a national legal reform group says the new rules are out of step with other states and American Bar Association standards, and will further weaken a discipline system that too often fails to protect the public.

“The case is effectively tried at the screening stage — before a victim has the full opportunity to show evidence,” said Suzanne Blonder, general counsel for HALT, a Washington-based group that evaluates state programs with a Lawyer Discipline Report Card. “Consumer protection should never be sacrificed simply for the sake of efficiency.”

Ginsberg says his case is a prime example. The Nashua man won custody of his daughters in 2000, but his divorce and post-divorce actions cost him nearly $500,000 in legal fees, he said.

Much of that was spent defending against Griffith’s repeated claims that Ginsberg was a “stalker” with “paranoid personality disorder,” had threatened one daughter with a knife and was fraudulently hiding money from a business, he said.

The stalking, mental health and “knife threat” charges were decided in Ginsberg’s favor, but the divorce judge ruled his business had substantial value and awarded his ex-wife a hefty property settlement and alimony, court records show. The business collapsed, Ginsberg fell behind in his payments and went bankrupt.

“My ex got more money than my kids and I did, and that came by John Griffith lying and convincing the judge I had more money than I did,” Ginsberg said.

Ginsberg complained in 2002 to the state committee on lawyer discipline, the Professional Conduct Committee, and a volunteer lawyer investigated. That investigation is not in the public file; however, the committee called for a hearing in December 2003.

But the attorney discipline system changed dramatically on Jan. 1, 2004. The committee was split into three panels: a complaint screening committee; a hearings committee to evaluate facts; and the Professional Conduct Committee, which decides whether misconduct occurred and imposes or recommends sanctions. The Supreme Court has the final say.

Meanwhile, the Attorney Discipline Office hired more staff to support the committees, including a disciplinary lawyer to bring formal charges and prosecute cases.

That’s where Ginsberg’s complaint failed.

After more investigation by a part-time assistant, the new disciplinary counsel concluded she couldn’t prove misconduct by “clear and convincing evidence.” She asked the Professional Conduct Committee to dismiss the complaint, while warning Griffith to “take more care in the future to ensure the accuracy and fairness of his pleadings and statements.”

Ginsberg and one of his divorce lawyers objected. He argued the disciplinary counsel ignored or misstated key facts, improperly reinvestigated his complaint and applied the wrong legal standard in dismissing it before a hearing.

Griffith, 68, whose law practice is in Wilton, protested the warning, which can be used against him in future disciplinary proceedings. He noted that a trial judge had found no misconduct despite earlier complaints by Ginsberg’s lawyers.

He also said the warning, which questions his judgment in “responding to the demands and assertions of his client and otherwise generating unnecessary litigation,” sets a bad precedent.

“I’d hate to have a situation where they had a rule that said, ‘You can’t believe your client,”’ he said.

As for Ginsberg, “Unless you believe the facts are what he says they are, you’re a liar,” Griffith said. “That’s not the way the system works, but he will never understand it.”

In June 2006, the committee agreed with the disciplinary counsel’s recommendation and dismissed the complaint with a warning. Ginsberg asked the Supreme Court for a review last fall. One justice agreed, but the full court later dismissed his petition after Griffith objected.

Ginsberg accuses the court of bias because Griffith, whose father was a state Supreme Court justice, spent years as the Professional Conduct Committee’s prosecutor on two high-profile misconduct cases.

“Faced with overwhelming evidence against Griffith and their Professional Conduct Committee, they moved to protect them and prevent embarrassment,” Ginsberg said.

He also says his case illustrates why the “clear and convincing” standard should not be used to dismiss complaints early: Neither the hearings panel or the conduct committee got to see and weigh the evidence for themselves.

Arnold Rosenfeld, a Boston University law professor who has prosecuted and defended lawyers on misconduct charges, said other states only require a “preponderance of the evidence” — a weaker standard — to go to a hearing. The American Bar Association’s model rules only require “clear and convincing” proof at the hearing stage.

But Nancy Cohen, a Colorado lawyer and president of the National Organization of Bar Counsel, said after investigating, disciplinary counsel must decide whether they have enough evidence to proceed in good faith.

“We have to say, ‘If we were to go all the way through, could we prove this?”’ she said.

James DeHart, general counsel at New Hampshire’s Attorney Discipline Office, said neither he nor disciplinary counsel Landya McAfferty can comment on specific cases.

DeHart has spent decades screening complaints and doing preliminary investigations. Even under the new rules, he only rejects complaints that are clearly unproveable or, even if true, would not constitute a violation of ethics rules. Everything else goes to the screening committee, he said.

“In the end, we’re trying to arrive at the correct answer: Is there misconduct or not?” he said. “There are always going to be people who feel that maybe you didn’t make the right decision, but we are attempting in each case, no matter who the lawyer is, to reach the fair and correct decision.”

Uchida, who once served on the conduct committee, said the new rules are already speeding up action on complaints with no merit. He has confidence they won’t be abused, but acknowledges that complainants, unfamiliar with the complicated discipline system, might not.

“The downside is … the public could perceive that we are now short-cutting their grievances,” he said.


On the Net:

ABA model rules for lawyer discipline:

New Hampshire rules:

HALT: http://www.halt.org/

National Organization of Bar Counsel: http://www.nobc.org/

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