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Supreme Court of New Hampshire

December 29, 2017

GALLANT'S CASE

          Argued: December 6, 2017

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

          Preti Flaherty, PLLP, of Concord (William C. Saturley on the brief and orally), for the respondent.

          LYNN, J.

         This case arises out of the interim suspension of the respondent, John F. Gallant, from the practice of law. A Judicial Referee (Duggan, J.) recommended that the suspension remain in effect. We agree with the referee's recommendation.

         I

         The respondent's interim suspension stems from his August 2017 indictment for felony witness tampering. See RSA 641:5 (2016). The indictment alleges that, in May 2017, the respondent, "believing that an investigation was pending regarding an alleged violation of a restraining order by his client as well as a hearing on said restraining order, . . . purposely attempted to induce or otherwise cause E.F., " the former girlfriend of his client and former law partner, "to withhold testimony and/or information from the court by telling [her, ] 'I spoke to the judge yesterday; he doesn't want to hear this[, ]' and '[c]an't you just drop it' or words to that effect." (Bolding omitted.)

         The relevant facts underlying the indictment, gleaned from the documents submitted to us, are as follows. See Lawrence v. Philip Morris USA, 164 N.H. 93, 96-97 (2012). In April 2017, E.F. applied for a domestic violence temporary order of protection against the respondent's client. On April 28, the Circuit Court (Moore, J.) issued a temporary protective order on an ex parte basis. Before the final hearing on E.F.'s petition took place, the respondent's client was arrested and charged with four counts of violating the protective order and three counts of theft by unauthorized taking. Originally, the client's bail was set at $25, 000. On May 18, at a hearing on the criminal charges at which E.F. was represented by Attorney William Henry Barry, the client's bail was reduced to $2, 000.

         On May 23, the court held a bail review hearing at which the respondent, his client, and a police officer from the Nashua Police Department were present, and at which the following colloquy occurred:

[THE RESPONDENT]: Thank you, Judge. I actually just got a quick question. I think we're back on tomorrow on the underlying restraining order, because it was an ex parte hearing. So, yeah, obviously there's nothing we can do without the other side, but --
THE COURT: No, sir, I can't discuss that without the other side here; however, sit down with Attorney Barry.
[THE RESPONDENT]: Yes.
THE COURT: I am sure that the two of you can resolve this issue and I'll be happy to work with you. I'm here tomorrow, so you can do one of two things on the underlying restraining order. You can certainly sit down with Attorney Barry and see if you can't work it out. If for some reason you feel that there's an issue having me hear the case, just let me know and I'll find you a different judge.

         The following day, E.F. appeared without counsel for the final hearing on the protective order. Also present were the respondent and his client. In a June 29, 2017 police interview, E.F. said that, before the hearing began, the respondent asked to speak with her. E.F. told the police that the respondent asked, "[C]an't we come to an agreement out of court, " to which she responded that she was uncomfortable doing so. E.F. told the police that the respondent then claimed that he had already spoken with Barry. E.F. called Barry, who confirmed that he had not spoken with the respondent.

         E.F. told the police that, shortly thereafter, the respondent again asked to speak with her. E.F. said that the respondent referred to the bail review hearing held on the prior day and stated, "I spoke to the judge yesterday; he doesn't want to hear this." E.F. told the police that the respondent said that the domestic violence protective order "was going to look really bad on [his client's] record, " to which E.F. responded that "chainsaws look really bad, " referring to an April 27 incident described in her petition for a domestic violence protective order. E.F. said that the respondent then asked, "Can't you just drop it"? E.F. advised that the respondent "tried to convince her to agree to a restraining order of only thirty days." E.F. reported that she believed that the respondent "was trying to get her to miss her hearing by going to another room to speak with him, " and that he "was trying to get her to leave so that the whole matter would be dropped."

         In June 2017, the respondent appeared at court on his client's behalf for a pretrial conference in the criminal case. Donald C. Topham, police prosecutor for the Nashua Police Department, approached the respondent about the matter. Topham reported that he told the respondent that Topham would speak with the respondent after speaking with the department's victim/witness advocate. When he did so, the victim/witness advocate advised Topham that E.F. "was present and wished the charges . . . to go forward." According to Topham, the victim/witness advocate further advised that the victim "had previously come to Court to obtain a Permanent Restraining Order" against the respondent's client and that, before the start of the final hearing on that order, E.F. had been approached by the respondent. The victim/witness advocate reported that, according to E.F., the respondent had said, "I've spoken to the Judge and he wants this to go away." The victim/witness advocate also reported that, according to E.F., the respondent had stated ...


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