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 ...