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Petition of Lath

Supreme Court of New Hampshire

February 3, 2017


          Submitted: November 17, 2016


          Sanjeev Lath and Barbara Belware, self-represented parties, by brief.

          Janet F. DeVito, general counsel (Brian R. Moushegian, deputy general counsel, on the brief), for the attorney discipline office.

          Devine, Millimet & Branch, Professional Association, of Concord (Mitchell M. Simon and Joshua M. Wyatt on the brief), for John F. Bisson.

          BASSETT, J.

         The petitioners, Sanjeev Lath and Barbara Belware, have petitioned for a writ of certiorari, see Sup. Ct. R. 11, challenging the decisions of the Office of General Counsel of the Attorney Discipline Office (ADO) and the Complaint Screening Committee (CSC). The ADO had dismissed a grievance filed by the petitioners against Attorney John F. Bisson. Upon the petitioners' request for reconsideration, the CSC affirmed the ADO's decision. In their petition, the petitioners argue that the ADO and the CSC erred by declining to docket their grievance as a complaint, and that the CSC erred by failing to answer the questions raised in the petitioners' request for reconsideration. The respondents-the ADO and Attorney Bisson-challenge the merits of the petitioners' claims, and also assert that the petitioners lack standing to bring this petition. Because we conclude that the petitioners lack standing, we dismiss the petition.

         We begin by providing background regarding the attorney discipline system. Pursuant to our rule-making authority under the State Constitution, see N.H. CONST. pt. II, art. 73-a, we have established an attorney discipline system to discharge our inherent and statutory authority to discipline attorneys, Petition of Brooks, 140 N.H. 813, 817 (1996); RSA 311:8 (2015); RSA 490:4 (2010); see also Sup. Ct. R. 37, 37A. "[T]he purpose of attorney discipline is to protect the public, maintain public confidence in the bar, preserve the integrity of the legal profession, and prevent similar [mis]conduct in the future . . . ." Bosse's Case, 155 N.H. 128, 131 (2007).

         The attorney discipline system is governed by the Supreme Court Rules, see Sup. Ct. R. 37, 37A, and has "disciplinary jurisdiction" over "[a]ny attorney admitted to practice law in this State, " Sup. Ct. R. 37(1)(b). The standards of conduct for New Hampshire attorneys are set forth in the New Hampshire Rules of Professional Conduct. N.H. R. Prof. Conduct Statement of Purpose. An attorney may be disciplined under the Supreme Court Rules if it is determined by clear and convincing evidence that the attorney violated the Rules of Professional Conduct. See Young's Case, 154 N.H. 359, 366 (2006); see also Sup. Ct. R. 37A(III)(d)(2)(C).

         One of the responsibilities of the ADO is to conduct an initial review of a grievance submitted by an individual. See Sup. Ct. R. 37A(II)(a)(2)(A), (3)(A). A grievance is a written submission that "call[s] to [the ADO's] attention conduct that the grievant believes may constitute misconduct by an attorney." Sup. Ct. R. 37A(I)(c). When a grievance is filed, the ADO reviews the grievance to determine whether the attorney in question is subject to the disciplinary jurisdiction of the attorney discipline system and whether the grievance meets certain other enumerated requirements. Sup. Ct. R. 37A(II)(a)(3)(A)-(B).

         If the ADO concludes that a grievance satisfies those requirements, it dockets the grievance as a complaint-otherwise, the grievance is dismissed. Sup. Ct. R. 37A(II)(a)(3)(C), (5)(A). If the ADO declines to docket a grievance, the grievant may file a request for reconsideration. Sup. Ct. R. 37A(II)(a)(4)(C). The request is reviewed by the CSC, id., a nine-member panel composed of five attorneys and four "non-attorneys, " Sup. Ct. R. 37(5)(a). The CSC must either "affirm the decision of the [ADO] or direct that the grievance be docketed as a complaint." Sup. Ct. R. 37A(II)(a)(4)(C). Once a grievance is docketed as a complaint, the respondent attorney must file an answer to the complaint, and the ADO may conduct a further investigation "as may be appropriate." Sup. Ct. R. 37A(II)(a)(5)(C), (a)(6).

          Turning to the present petition, the record reflects the following facts. On December 30, 2015, the petitioners filed a grievance with the ADO. The petitioners' grievance arises out of the annual meeting of the Oak Brook Condominium Owners' Association, which took place in November 2015. The petitioners are unit owners at Oak Brook Condominium. Attorney Bisson represented the condominium association at the meeting. The petitioners allege that, during the meeting, Attorney Bisson violated the Rules of Professional Conduct by, among other things, recording the meeting without the petitioners' knowledge or consent.

         The ADO reviewed the factual allegations in the petitioners' grievance, along with the exhibits that the petitioners provided. On January 15, 2016, the ADO's assistant general counsel sent a three-page letter to the petitioners, in which he reviewed the allegations, assessed the claimed violations, and explained the reasoning that led to his conclusion that "a hearing panel would not likely find clear and convincing evidence that" Attorney Bisson violated the Rules of Professional Conduct. Regarding the claim that Attorney Bisson made a recording without the petitioners' knowledge or consent, he noted that one of the petitioners' exhibits showed that, in fact, the meeting had not been recorded. Based upon the analysis of the petitioners' allegations, the ADO declined to docket the petitioners' grievance as a complaint.

         The petitioners filed a request for reconsideration, asserting that their grievance satisfied the requirements for docketing and that the ADO erred by dismissing their grievance. In their request, the petitioners listed a number of alleged errors in the ADO's decision, which they labeled "[q]uestion[s]." In a letter dated February 25, 2016, the CSC informed the petitioners that it had affirmed the ADO's decision. The petitioners then filed a "Motion for Clarification" with the CSC, asking that the CSC answer the questions that the petitioners had raised in their request for reconsideration. The CSC responded to the motion ...

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