Petition 21: the Ginsberg Petition

PETITION #21:  grievance of Arthur Ginsberg

MAJORITY

Grievance Unfounded.

Committee Majority Findings:

The Petitioner alleged being aggrieved by both the Attorney Discipline System (ADS) and the New Hampshire Supreme Court in the handling and disposition of his professional conduct complaint against his former wife's divorce counsel, the result of which was dismissal of his complaint with a warning.

In order for a petition for redress of grievance to be determined by this Committee to be "founded," it is not enough for a petitioner merely to show wrongful conduct or unjust acts of a governmental entity or official. He must also show the existence of a lawful legislative remedy. Further, by reason that— unlike the judicial branch and executive branch administrative agencies against which allegations of grievance are typically brought— this Committee is not designed and lacks the resources to conduct fundamentally fair adversary proceedings, a petitioner must be prepared to show that any such allegation admits of no reasonable alternative explanation other than corruption, incompetence, or willful disregard of law. The Committee concludes that the Petitioner in this case has failed to meet his burden of persuasion in either regard.

The alleged wrongs that were the basis of the Petitioner's professional conduct complaint occurred in the course of his and his then-wife's divorce. Those wrongs, even accepting them to have occurred exactly as articulated and with all the consequences asserted by the Petitioner, were part of that judicial proceeding, and if left unraised, unaddressed or unremedied at the time of and within the context of that proceeding, their effects cannot be remedied by legislative action, as the legislative branch has no authority to interfere with or disturb the results of judicial proceedings. Similarly, the dismissal with a warning resulting from wrongs allegedly perpetrated by personnel or agents of the ADS, again accepting those wrongs to have occurred exactly as articulated by the Petitioner, and accepting as well his conviction of the inadequacy of the punishment imposed, also cannot be changed by legislative action. In summary, the Committee is satisfied that there is no set of facts the Petitioner alleged or could allege which, even if accepted by the Committee as true and incontrovertible, would support any legislative remedy directed to the specific judicial or ADS proceedings in question.

The only other basis for a determination of "founded" by the Committee would be if the Petitioner demonstrated systemic unfairness of the ADS, of which that alleged to have occurred in his case was symptomatic. The Petitioner focused in particular on amendments made in 2007 to Subdivisions (5)(b)(5) and (5)(b)(7) of Supreme Court Rule 37, which allegedly changed the standard of review in the initial screening of professional conduct complaints, retrospectively in his case, from "preponderance of the evidence" to "reasonable likelihood that a complaint can be proven by clear and convincing evidence." The Committee notes that "clear and convincing evidence" has always been the standard of proof in ADS cases once they have reached the hearing level before the Professional Conduct Committee (Supreme Court Rule 37(3)(c)(2); Young's Case, 154 NH 359 (2006); Edes' Case, 118 NH 815(1978); Decato's Case, 117 NH 885 (1977)). Accordingly, in opposition to the Petitioner's allegation of corrupt motivation in making the amendments is the alternative explanation that they were made merely to harmonize the complaint screening process with the "clear and convincing evidence" standard, and thereby relieve an unnecessary burden on ADS staff and avoid unrealistic expectations of complainants by reducing the number of complaints entering the system that plainly cannot be resolved other than by their eventual dismissal. The Committee is aware of no groundswell of public discontent or pattern of injustice that has emerged over the five years since the Supreme Court's amendments were implemented, and the Petitioner has not, among the numerous documents with which he has favored the Committee, offered one containing proof to the contrary. The objection offered to the changes that they make it more difficult for lay people to file, pursue and prevail in the attorney disciplinary process is countered by the observation that, the ultimate subject of a professional conduct complaint being a person's livelihood, the process should not be easy but should be rigorous and exacting.

Finally, the Petitioner complains against the Supreme Court for vacating an earlier order accepting for review his Supreme Court Rule 11 petition from the ADS dismissal of his complaint. The Committee notes that, by its terms, petitions filed under Supreme Court Rule 11 are granted "only when there are special and important reasons for doing so," such as when a judicial or administrative agency proceeding "has so far departed from the accepted or usual course…as to call for an exercise of [the] court's power of supervision." In opposition to the Petitioner's allegation of corrupt motivation in vacating its acceptance of his petition is the reasonable alternative explanation that, once the Court had clarified the matter of the proper standard to apply in the screening of professional conduct complaints, the Petitioner's Rule 11 petition no longer met the Rule's threshold requirements, and the Court's prior acceptance of that petition was therefore properly vacated. Vote 10-1.

Rep. Gregory M. Sorg for the Majority of the Committee.

MINORITY

Grievance Founded.

Minority Committee Findings:

The Minority believes Mr. Ginsberg conclusively documented that until 2007 the rules of New Hampshire's Attorney Disciplinary System only allowed "clear and convincing" evidence to be used at the hearing stage of a complaint. "Preponderance of evidence" was the standard used for screening, and investigating complaints. In January of 2007, on a "temporary basis," the rules were changed to "clear and convincing" at all stages of a complaint.  The new rules actually violate the 1st and 14th constitutional amendments, and deny citizens access to the courts.  These rules further provide immunity to unethical and dishonest attorneys in New Hampshire.

It is recommended that the Professional Conduct Committee adopt the American Bar Association recommendations of "preponderance of evidence,"  but if "clear and convincing" evidence is used it is to be only at the hearing level.  The PCC must adhere to their rules and truly discipline attorneys that are violating these rules (Code of Ethics and Laws of NH).

When the state legislature passes a law (RSA) that may be unconstitutional, it is the Supreme Court which rules.  When the Supreme Court acts as a legislature and publishes written laws (Supreme Court Rules), then the General Court (NH State Legislature) has the responsibility of reviewing those laws.  73a does not prevent the General Court from overruling the Supreme Court when they institute rules that violate citizens' rights… it is our duty to take action.  No one is above the law.

Rep. Stella Tremblay for the Minority of the Committee.

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