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lawyer-client relationship between BS Kids LLC , the author of the information and any other legal publisher. Customers of BS Kids should not act
upon this information without seeking professional counsel. The opinions expressed in the material presented to BS Kids clientele is based on
information found in legal publications. BS Kids LLC, 78 Canterberry Court, Hudson, NH 03051 781-756-1214.
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Monday, June 4, 2007
New rules on disciplining unethical lawyers in N.H.
By KATHARINE WEBSTER
Associated Press Writer
New rules on disciplining unethical lawyers in N.H.
CONCORD, N.H. (AP) _ Arthur Ginsberg says lies by his ex-wife's divorce lawyer harmed his daughters,
forced him into bankruptcy and damaged his reputation _ yet the well-connected lawyer got off with a
warning.
The lawyer, John P. Griffith, says he didn't even merit a warning: He was simply advocating vigorously
for his client based on the evidence he had.
Earlier this year, the state Supreme Court approved temporary rules aimed at speeding up disciplinary
proceedings against unethical lawyers. A hearing is scheduled Wednesday on whether to make the
rules permanent.
The new rules let staff lawyers at the Attorney Discipline Office or a complaint screening committee of
lawyers and non-lawyers dismiss complaints quickly if it's unlikely they can be proved by "clear and
convincing evidence." Supporters say that will ease a years-long backlog of unresolved complaints.
"Not only are the attorneys getting bogged down with these complaints and grievances that hang over
their heads for months or years, the complainants suffer," said Richard Uchida, who helped write state
ethics rules and defends lawyers charged with misconduct.
But a national legal reform group says the new rules are out of step with other states and American Bar
Association standards, and will further weaken a discipline system that too often fails to protect the
public.
"The case is effectively tried at the screening stage _ before a victim has the full opportunity to show
evidence," said Suzanne Blonder, general counsel for HALT, a Washington-based group that evaluates
state programs with a Lawyer Discipline Report Card. "Consumer protection should never be sacrificed
simply for the sake of efficiency."
Ginsberg says his case is a prime example. The Nashua man won custody of his daughters in 2000, but
his divorce and post-divorce actions cost him nearly $500,000 in legal fees, he said.
Much of that was spent defending against Griffith's repeated claims that Ginsberg was a "stalker" with
"paranoid personality disorder," had threatened one daughter with a knife and was fraudulently hiding
money from a business, he said.
The stalking, mental health and "knife threat" charges were decided in Ginsberg's favor, but the divorce
judge ruled his business had substantial value and awarded his ex-wife a hefty property settlement and
alimony, court records show. The business collapsed, Ginsberg fell behind in his payments and went
bankrupt.
"My ex got more money than my kids and I did, and that came by John Griffith lying and convincing the
judge I had more money than I did," Ginsberg said.
Ginsberg complained in 2002 to the state committee on lawyer discipline, the Professional Conduct
Committee, and a volunteer lawyer investigated. That investigation is not in the public file; however, the
committee called for a hearing in December 2003.
But the attorney discipline system changed dramatically on Jan. 1, 2004. The committee was split into
three panels: a complaint screening committee; a hearings committee to evaluate facts; and the
Professional Conduct Committee, which decides whether misconduct occurred and imposes or
recommends sanctions. The Supreme Court has the final say.
Meanwhile, the Attorney Discipline Office hired more staff to support the committees, including a
disciplinary lawyer to bring formal charges and prosecute cases.
That's where Ginsberg's complaint failed.
After more investigation by a part-time assistant, the new disciplinary counsel concluded she couldn't
prove misconduct by "clear and convincing evidence." She asked the Professional Conduct Committee
to dismiss the complaint, while warning Griffith to "take more care in the future to ensure the accuracy
and fairness of his pleadings and statements."
Ginsberg and one of his divorce lawyers objected. He argued the disciplinary counsel ignored or
misstated key facts, improperly reinvestigated his complaint and applied the wrong legal standard in
dismissing it before a hearing.
Griffith, 68, whose law practice is in Wilton, protested the warning, which can be used against him in
future disciplinary proceedings. He noted that a trial judge had found no misconduct despite earlier
complaints by Ginsberg's lawyers.
He also said the warning, which questions his judgment in "responding to the demands and assertions of
his client and otherwise generating unnecessary litigation," sets a bad precedent.
"I'd hate to have a situation where they had a rule that said, 'You can't believe your client,'" he said.
As for Ginsberg, "Unless you believe the facts are what he says they are, you're a liar," Griffith said.
"That's not the way the system works, but he will never understand it."
In June 2006, the committee agreed with the disciplinary counsel's recommendation and dismissed the
complaint with a warning. Ginsberg asked the Supreme Court for a review last fall. One justice agreed,
but the full court later dismissed his petition after Griffith objected.
Ginsberg accuses the court of bias because Griffith, whose father was a state Supreme Court justice,
spent years as the Professional Conduct Committee's prosecutor on two high-profile misconduct cases.
"Faced with overwhelming evidence against Griffith and their Professional Conduct Committee, they
moved to protect them and prevent embarrassment," Ginsberg said.
He also says his case illustrates why the "clear and convincing" standard should not be used to dismiss
complaints early: Neither the hearings panel or the conduct committee got to see and weigh the
evidence for themselves.
Arnold Rosenfeld, a Boston University law professor who has prosecuted and defended lawyers on
misconduct charges, said other states only require a "preponderance of the evidence" _ a weaker
standard _ to go to a hearing. The American Bar Association's model rules only require "clear and
convincing" proof at the hearing stage.
But Nancy Cohen, a Colorado lawyer and president of the National Organization of Bar Counsel, said
after investigating, disciplinary counsel must decide whether they have enough evidence to proceed in
good faith.
"We have to say, 'If we were to go all the way through, could we prove this?'" she said.
James DeHart, general counsel at New Hampshire's Attorney Discipline Office, said neither he nor
disciplinary counsel Landya McAfferty can comment on specific cases.
DeHart has spent decades screening complaints and doing preliminary investigations. Even under the
new rules, he only rejects complaints that are clearly unproveable or, even if true, would not constitute a
violation of ethics rules. Everything else goes to the screening committee, he said.
"In the end, we're trying to arrive at the correct answer: Is there misconduct or not?" he said. "There are
always going to be people who feel that maybe you didn't make the right decision, but we are attempting
in each case, no matter who the lawyer is, to reach the fair and correct decision."
Uchida, who once served on the conduct committee, said the new rules are already speeding up action
on complaints with no merit. He has confidence they won't be abused, but acknowledges that
complainants, unfamiliar with the complicated discipline system, might not.
"The downside is ... the public could perceive that we are now short-cutting their grievances," he said.<
New rules on disciplining unethical lawyers in N.H.
By KATHARINE WEBSTER
Associated Press Writer
New rules on disciplining unethical lawyers in N.H.
CONCORD, N.H. (AP) _ Arthur Ginsberg says lies by his ex-wife's divorce lawyer harmed his daughters,
forced him into bankruptcy and damaged his reputation _ yet the well-connected lawyer got off with a
warning.
The lawyer, John P. Griffith, says he didn't even merit a warning: He was simply advocating vigorously
for his client based on the evidence he had.
Earlier this year, the state Supreme Court approved temporary rules aimed at speeding up disciplinary
proceedings against unethical lawyers. A hearing is scheduled Wednesday on whether to make the
rules permanent.
The new rules let staff lawyers at the Attorney Discipline Office or a complaint screening committee of
lawyers and non-lawyers dismiss complaints quickly if it's unlikely they can be proved by "clear and
convincing evidence." Supporters say that will ease a years-long backlog of unresolved complaints.
"Not only are the attorneys getting bogged down with these complaints and grievances that hang over
their heads for months or years, the complainants suffer," said Richard Uchida, who helped write state
ethics rules and defends lawyers charged with misconduct.
But a national legal reform group says the new rules are out of step with other states and American Bar
Association standards, and will further weaken a discipline system that too often fails to protect the
public.
"The case is effectively tried at the screening stage _ before a victim has the full opportunity to show
evidence," said Suzanne Blonder, general counsel for HALT, a Washington-based group that evaluates
state programs with a Lawyer Discipline Report Card. "Consumer protection should never be sacrificed
simply for the sake of efficiency."
Ginsberg says his case is a prime example. The Nashua man won custody of his daughters in 2000, but
his divorce and post-divorce actions cost him nearly $500,000 in legal fees, he said.
Much of that was spent defending against Griffith's repeated claims that Ginsberg was a "stalker" with
"paranoid personality disorder," had threatened one daughter with a knife and was fraudulently hiding
money from a business, he said.
The stalking, mental health and "knife threat" charges were decided in Ginsberg's favor, but the divorce
judge ruled his business had substantial value and awarded his ex-wife a hefty property settlement and
alimony, court records show. The business collapsed, Ginsberg fell behind in his payments and went
bankrupt.
"My ex got more money than my kids and I did, and that came by John Griffith lying and convincing the
judge I had more money than I did," Ginsberg said.
Ginsberg complained in 2002 to the state committee on lawyer discipline, the Professional Conduct
Committee, and a volunteer lawyer investigated. That investigation is not in the public file; however, the
committee called for a hearing in December 2003.
But the attorney discipline system changed dramatically on Jan. 1, 2004. The committee was split into
three panels: a complaint screening committee; a hearings committee to evaluate facts; and the
Professional Conduct Committee, which decides whether misconduct occurred and imposes or
recommends sanctions. The Supreme Court has the final say.
Meanwhile, the Attorney Discipline Office hired more staff to support the committees, including a
disciplinary lawyer to bring formal charges and prosecute cases.
That's where Ginsberg's complaint failed.
After more investigation by a part-time assistant, the new disciplinary counsel concluded she couldn't
prove misconduct by "clear and convincing evidence." She asked the Professional Conduct Committee
to dismiss the complaint, while warning Griffith to "take more care in the future to ensure the accuracy
and fairness of his pleadings and statements."
Ginsberg and one of his divorce lawyers objected. He argued the disciplinary counsel ignored or
misstated key facts, improperly reinvestigated his complaint and applied the wrong legal standard in
dismissing it before a hearing.
Griffith, 68, whose law practice is in Wilton, protested the warning, which can be used against him in
future disciplinary proceedings. He noted that a trial judge had found no misconduct despite earlier
complaints by Ginsberg's lawyers.
He also said the warning, which questions his judgment in "responding to the demands and assertions of
his client and otherwise generating unnecessary litigation," sets a bad precedent.
"I'd hate to have a situation where they had a rule that said, 'You can't believe your client,'" he said.
As for Ginsberg, "Unless you believe the facts are what he says they are, you're a liar," Griffith said.
"That's not the way the system works, but he will never understand it."
In June 2006, the committee agreed with the disciplinary counsel's recommendation and dismissed the
complaint with a warning. Ginsberg asked the Supreme Court for a review last fall. One justice agreed,
but the full court later dismissed his petition after Griffith objected.
Ginsberg accuses the court of bias because Griffith, whose father was a state Supreme Court justice,
spent years as the Professional Conduct Committee's prosecutor on two high-profile misconduct cases.
"Faced with overwhelming evidence against Griffith and their Professional Conduct Committee, they
moved to protect them and prevent embarrassment," Ginsberg said.
He also says his case illustrates why the "clear and convincing" standard should not be used to dismiss
complaints early: Neither the hearings panel or the conduct committee got to see and weigh the
evidence for themselves.
Arnold Rosenfeld, a Boston University law professor who has prosecuted and defended lawyers on
misconduct charges, said other states only require a "preponderance of the evidence" _ a weaker
standard _ to go to a hearing. The American Bar Association's model rules only require "clear and
convincing" proof at the hearing stage.
But Nancy Cohen, a Colorado lawyer and president of the National Organization of Bar Counsel, said
after investigating, disciplinary counsel must decide whether they have enough evidence to proceed in
good faith.
"We have to say, 'If we were to go all the way through, could we prove this?'" she said.
James DeHart, general counsel at New Hampshire's Attorney Discipline Office, said neither he nor
disciplinary counsel Landya McAfferty can comment on specific cases.
DeHart has spent decades screening complaints and doing preliminary investigations. Even under the
new rules, he only rejects complaints that are clearly unproveable or, even if true, would not constitute a
violation of ethics rules. Everything else goes to the screening committee, he said.
"In the end, we're trying to arrive at the correct answer: Is there misconduct or not?" he said. "There are
always going to be people who feel that maybe you didn't make the right decision, but we are attempting
in each case, no matter who the lawyer is, to reach the fair and correct decision."
Uchida, who once served on the conduct committee, said the new rules are already speeding up action
on complaints with no merit. He has confidence they won't be abused, but acknowledges that
complainants, unfamiliar with the complicated discipline system, might not.
"The downside is ... the public could perceive that we are now short-cutting their grievances," he said.<