Additional commentary by Timothy Horrigan
(member of the House Petitions & Redress Committee)
Dan Shepard got a no-fault divorce on grounds of irreconcilable differences back in 2006. He has moved on with his life and remarried. But, he still has some unsettled grievances. He submitted voluminous documentation, all nicely arranged on a CD. I was tempted to put it all on my website because it tells an interesting story with a colorful cast of characters, but for various reasons, I don't think it belongs here. The biggest of these reasons is that 98% of it is about his exwife, who (technically) is not a party to this petition (and who herself has moved on with her life.) Mr. Shepard's basic complaints are that the settlement was overly favorable to the exwife, and that her lawyers cheated him. Her divorce lawyer Keri J. Marshall faces public censure as a result of a complaint which Mr. Shepard filed in 2009.
This petition was introduced twice under two different numbers. Petition 29 was pulled after Mr. Shepard's exwife belatedly realized that her name was mentioned in it. Petition 34 is the same petition, only with no mention of his wife. It, like Petition 29, does mention one very familiar name: Marital Master Philip Cross.
PETITION 34 – AS INTRODUCED
PETITION FOR REDRESS OF GRIEVANCE
TO: The Honorable House of
FROM: Petitioner Representative Patrick Abrami, Rock. 13
DATE: March 16, 2012
SUBJECT: Grievance of Daniel Shepard
Your Petitioner, Representative Abrami, on behalf of Daniel Shepard of North Hampton, hereinafter presents the following summary of his grievance against the State of New Hampshire, Marital Master Philip Cross, Judge Sharon N. DeVries, and Attorney Keri J. Marshall and invokes the constitutional authority and duty of the Honorable House of Representatives pursuant to Articles 31 and 32 of the New Hampshire Constitution to bring about redress:
Grievance involving repeated violations of Daniel Shepard's due process rights, violations of the standards of evidence, violations of the New Hampshire support RSAs and precedents (e.g., contradiction of the New Hampshire supreme court ruling in Noddin v. Noddin, 123 N.H. 73 (1983)), abuses of discretion and power, and an unsustainable exercise of discretion regarding evidence.
Wherefore, your Petitioner prays that the House of Representatives consider this proposed remedy:
Introduce legislation to:
Amend family court RSAs on modifications of alimony to eliminate increases in and extensions of alimony awarded pursuant to a final decree, particularly when the receiving party has provided testimony or evidence containing material falsehoods or when there has been a finding of adultery or any other of the causes for divorce against the receiving party; and
Amend family court RSAs to allow appeals to the superior court on questions of admissibility of evidence.
Require the supreme court to establish rules of evidence for the family court which are in conformance with the superior court rules of evidence.
Continue the investigation for impeachment of Marital Master Philip Cross and Judge Sharon N. DeVries pursuant to HR 7.
Respectfully submitted by Petitioner Representative Abrami on behalf of Daniel Shepard.
In July 17, 2012, the committee took a vote and Mr. Shepard won 9-3, on (if I recall correctly) party lines. We few, we proud Democrats had a very hard time getting a report approved by the Speaker. Mr. Shepard was denied the unanimous verdict he was hoping for, and he was incensed even by the bland final draft of the minority report:
This page gets a fair number of search-engine hits on the name "Keri Marshall." Mr. Shepard claims, correctly, that Attorney Keri J. Marshall is being investigated by the Attorney Discipline System. He was the person who filed the charges against her in March 2009. His initial complaint letter contained (to use a phrase from the final report on the charges) "myriad claims": it contained eight pages of assorted accusations.
The hearings focussed on the simplest and least dramatic of Mr. Shepard's myriad claims. This claim stemmed from a dispute (one of many) over the scheduling of a hearing (one of many.) This hearing was initially scheduled for August 20, 2008, and ended up being postponed till September 8, 2008. One of Attorney Marshall's paralegals initially claimed she telephoned Mr. Shepard and obtained his consent to a postponement (or "continuance" to use the exact legal term) on or around July 24, 2008, which would have been a month in advance of the originally scheduled date. However, more likely than not, the necessary phone call never happened. Neither Mr. Shepard nor Attorney Marshall have a record of this call, even though they both kept detailed records. (Attorney Marshall's records turned out to be somewhat disorganized, however.)
Mr. Shepard filed his own continuance motion and he and one or more lawyers showed up on September 8, 2008 as scheduled— but that wouldn't excuse any wrongdoing on Attorney Marshall's part.
The Professional Conduct Committee's final report summarized the basic charge as follows:
In July 2008, Marshall filed an
"Assented to Motion to Continue" in the Portsmouth Family
Division, seeking to continue a hearing scheduled for August
20,2008.. The motion's title, as well as the cover letter to
the court, reflected the motion as having Daniel Shepard's
assent, though, dissonant with [Marshall's] standard
office practice, nothing in the body of the motion stated that
he had been contacted and did indeed assent. At the beginning
of the hearing in this proceeding, the parties stipulated that
no call to Shepard was ever made.
In a pleading dated August 18,2008, Shepard filed his own motion to continue a hearing scheduled for that September. Exhibit 20. In that motion, Shepard contended that he "was neither consulted nor contacted prior to Petitioner's filing of her ASSENTED TO MOTION TO CONTINUE and, as such, Petitioner's motion was not "assented to."
About three weeks into the lengthy hearing process, Shepard's exwife filed an March 2009 affidavit where she stated (point #24 out of 29) that her exhusband had given his assent over the telephone:
Regarding the Assented to Motion to Continue, a staff member of Marshall Law Office, Kathy Parlatore indicates that she telephoned Mr. Shepard and secured his assent. There is nothing further to add regarding that matter. Clearly there is no reason to misrepresent his assent. If Mr. Shepard did not assent, it was incumbent upon him to notify the Court. Regardless, the staff member indicates that he did assent.
This affidavit was not preceded with one or more pages of gassy Whereases and Wherefores, but it was still an affidavit of truth. Bullet point #24 was eventually deemed to be unfounded by the Professional Conduct Committee, but at the time the exwife believed everything in her affidavit to be true— and her 29 bullet points were never rebutted to her satisfaction. Theoretically, everything in her affidavit, including point #24, could have been been established as "Truth in Commerce." This shows the problem with relying too much on "Affidavits of Truth" like those filed by petitioners David Johnson. Josh Youssef and Gus Breton. But I digress...
Hearings were held in March 2012, a report was written in April 2012, and more hearings were held in May 2012.. During an August 2012 interview with Rep. Kevin Avard, Mr. Shepard says something about how the committee had been considering censuring Attorney Marshall, which he evidently considered an insufficient punishment. (We now know that the Professional Conduct Committee's assistant counsel wanted to suspend her law license, but the committee opted for a lesser punishment.)
On October 16, 2012, another hearing was held, and on November 27, 2012, a ""Public Censure with Conditions" order was issued. It was not posted on the official Attorney Discipline website NHAttyReg.org until January 2, 2013. In between November 16 & January 2, I ran into Mr. Shepard at a New Hampshire House Rules Committee meeting and actually had a fairly amicable conversation with him. He said he was pleased with the outcome, especially the fact that Attorney Marshall was going to take a massive financial hit. According to the official report, she "has voluntarily agreed to pay all costs associated with the investigation and prosecution of this matter." She got in trouble more for managing her law practice badly than for any malpractice per se— which is actually true for many lawyers who fall afoul of the attorney discipline system.
The sanctions were as follows:
Public Censure pursuant to Sup. Ct. R. 37A,1(E)(1)(d).
Marshall shall engage, at her expense and within 30 days of the date of this public censure, a noffice management consultant approved by Assistant Disciplinary Counsel. Marshall has voluntarily agreed to this remedial measure, and the Committee concurs the need for such a measure is indicated. TheCommittee specifically finds Marshall's office management oversight— specifically with regard to communications with opposing counsel and the court system, and later with the ADO — to be lacking. Therefore, the office management consultant shall be engaged for a period of not less than six months, and shall concentrate on the development of office management techniques to ensure Marshall— especially being a sole practitioner— is proficient in operation of her office billing program, and achieve a level of competency in the operation of all software upon which her office and staff rely for day-to-day operations. The office management consultant shall provide a report to the ADO at the conclusion of the 6 month period indicating Marshall's compliance with this paragraph. If the ADO is not satisfied Marshall has achieved the proficiency or competency required, the ADO may require up to another sixth month engagement of the office management consultant on the same terms and conditions. The ADO shall report to this Committee at the end of the initial or extended term of the office management consultant's engagement to indicate whether Marshall has achieved satisfactory results, or whether further involvement of this Committee, and possibly further remedial measures and/or sanctions, are indicated.
Marshall shall file, within 30 days of the date of this public censure, an affidavit of explanation to the 10th Circuit Court, Portsmouth Family Division In the Matter of [Ex-wife's name redacted] and Daniel Shepard [Case number redacted]. The affidavit shall be written with candor and shall correct the record as to Mr. Shepard's lack of assent to the relevant motion to continue. A copy of the affidavit shall be transmitted to the ADO andMr. Shepard concurrent with its filing with the court.
This sanction is in accord with the purpose of attorney discipline as described by the New Hampshire Supreme Court and with the Standards. See, e.g., Shillen 's Case, 149 N.H. 132,139 (2003) (noting that although the Court has never formally adopted these Standards, the Court has considered them when imposing sanctions.)
Attorney Marshall's name also turns up in Petition #14, the Jeannette Dionne petition: in that case, she was one of multiple attorneys who represented the petitioner over the years. The petitioner did indicate that she had fired Ms. Marshall, but we never found out why.
Other 2012 Petitions:
2011 Petition #5: the Johnson Petition. (David W. Johnson is an ardent foe of Master Cross)
2011 Petition #14: the Dionne Petition. (Keri Marshall was Dionne's lawyer for a while)
Official Petitions & Redress committee page (not much to see here)
Rep. Kevin Avard's "Speak Up!" videos