August 4, 2002
James L. DeHart, Administrator
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301
Re: 00-036 In the Matter of Paula J. Werme, Esq.
Request for Reconsideration pursuant to Rule 37 § 3.21
Dear Mr. DeHart,
Please consider this letter as a Request for Redetermination
pursuant to Rule 37 § 3.21. While I do thank the committee for
dismissing the complaint in regard to Rule 1.7, I still believe the
committee erred in its determination on the violation of Rules 8.2(a)
and 8.4(a) of the Rules. The rule specifically states that I need to
cite with particular clarity, points of law or fact that the Committee
has overlooked or misapprehended and shall contain such argument in
support of the request as the party making such request desires to
present. I cannot guess which facts the committee has overlooked in
making its determination, however, I can point out to the committee
which facts are not in the determination that appear not to have been
used or areas of law where I believed the committee erred.
- Judge Taube did not appoint any other attorney to represent my
clients at any time. He specifically stated in his Order of January
26, 2000 and under oath to the committee to the contrary. I could be
sure of that at the time of my motion for reconsideration because I
had already filed an appearance, and he was not at liberty to appoint
other counsel for my clients unless I withdrew. Had he stated at the
hearing that he had already appointed counsel for my clients, I assure
you I would have jumped up immediately and said, "You can't do that!
I filed an appearance." I am also submitting for additional
consideration a copy of the court's Document index, which indicate
that at no time between the commencement of the case on 8/25/99 and
2/22/2000 in which he recused himself is there an order for
appointment of counsel.
- As for Judge Taube statement he had not appointed me because he had
already appointed counsel from the approved list of counsel, I've
already pointed out to the committee that he did not appoint counsel
at all. This
committee is apparently expecting that, knowing the first clause
following the word "because" in his order was not true, that I would
be expected to file a motion for reconsideration to his court to
verify that there was no "list" when I had already received
information from Donald Goodnow that there was no list "to guide the
judges in the exercise of their discretion in appointing counsel.
- I would point out to the committee that the burden of proof here
for a finding of misconduct is a preponderance of the evidence, not
beyond a reasonable doubt. You appear to be using a beyond a
reasonable doubt standard as it applied to my own knowledge of the
"list" to show that since I did not have that information beyond a
reasonable doubt that I was reckless. I believe this is the incorrect
standard. As I pointed out to the committee, I was entitled to
believe Donald Goodnow, who had, to my knowledge, no prior knowledge
of me, and no reason to lie. I believe I have shown that at the time
I filed the motion, I had specific, credible evidence that no list
existed, at least to the level of preponderance of the evidence. I
would characterize my knowledge at the time as clear and convincing
based Donald Goodnow's letter to me.
- I believe that the wording of the Reprimand itself shows that the
committee itself does not believe that the list exists. I don't think
the evidence before the committee at this point is that it doesn't
exist beyond a reasonable doubt, but this appears to be the standard
to which you are holding me. How is it that you may make a finding
that it doesn't exist, and I don't have the freedom to come to the
same conclusion with a letter from Donald Goodnow that there is no
list?
- As a matter of form I would point out to the committee that its
finding was that Judge Taube stated in the hearing of December 15 that
he had not appointed me because he had appointed counsel from the list
at the Brentwood Family Court is incorrect. Please re-read the
transcript. I brought up the subject of the "list" following Judge
Taube's decision. I was expecting it to be an informal list of
attorneys interested in court appointments, not a list excluding
attorneys from appointment on the basis lacking certain credentials.
Judge Taube's first statement that he had not appointed me because I
was not on the list of court appointed counsel was in his decision of
January 26, 2000, contemporaneous with his appointment of Joe Tropiano
as Guardian ad Litem for the mother because his first appointment was
Phil Cross, who had represented her in the underlying neglect matter.
- I do not understand your finding that I "attempted entry" into the
case. I believe the filing of an appearance in a matter means that the
attorney has entered the matter. The motion I filed for appointment
was to obtain for my clients what was their right as indigent parents
facing permanent loss of their parental rights, that of court payment
of their legal fees. I was able to find no New Hampshire case law on
the subject of "attempted entry," nor was I able to find anything in
Weibusch, NH Civil Practice and Procedure on "attempted entry" or
"attempted appearance." I did find a case, which I am enclosing for
your review on "attempted appearance," where the court held that an
appearance without the authorization of the party to the lawsuit was
null and void. This was not an issue in this case. Loken v. Magrum,
364 N.W. 2d 79 (N.D. 1985). "An attempted appearance by a third
person without authority from the party for whom he purports to appear
is ordinarily wholly ineffective for any purpose whatsoever, . . . 6
C.J.S. Appearances." My clients had not given anyone any authority to
act on their behalf except me, and the notation in the record that
Neil Reardon and Joe Tropiano were called in for appointment is not
the same as actually appointing them. I had filed an appearance, had
filed an answer, motion to continue, and on 12/15/99 I also filed a
Motion for Discovery. No judge reasonable judge at the time of the
preliminary hearing would have concluded on December 15, 1999 that he
was free to appoint counsel as I was continuing to do the very things
expected of an attorney and my clients had not requested any court
appointed counsel other than me. I will remind you of the wording
paragraph #3 of Judge Taube's January 26, 2000 ORDER. Also, please
cite your legal source for the proposition that filing an appearance
constitutes an "attempted appearance" until the judge permits one to
represent the client. (Judge Taube's ORDER of January 26, 2000, # 3)
"The court had appointed counsel for each parent but Attorney Werme
informed the Court that the parents had retained her to represent them
and she wished to be appointed by the Court."
- At the time I had informed the court that I wished to be appointed,
whether that is interpreted as of the date of my motion or in the
hearing when I informed the court that the parents had retained me,
the Court had not appointed counsel for each parent.
"The Court declined the appointment because it had already appointed
counsel from its approved list of counsel, which she was not on."
It was not true that Judge Taube had already appointed counsel whether
one considers the statement to refer to Judge Taube's denial of motion
on 11/17/99 or the oral denial in court on December 15. It is also
not a true statement whether there is a "list" or not. He had not
appointed counsel at all.
"The court did, however, allow her appearance, but raised questions
about her ability to represent both clients, given their potentially
competing interests involving possibly different defenses and trial
strategies."
Judge Taube had no authority to "deny" my appearance, or to
characterize my role as that of anything other than that of counsel
for parents. He therefore had no authority to appoint my clients
counsel, which, as I have already pointed out, he did not do.
- The plain wording of Weibusch, Civil Practice and Procedure, §
8.11 states that motions may be reconsidered prior to final judgment.
It further states that a hearing may be granted when the motion
"raises a new matter, or an issue not previously perceived." There is
no obligation to request a motion for reconsideration when the facts
stated in the order are not only not true, but the record reflects
that they are untrue.
I suppose you do have the right to reprimand me for my
conclusion, after checking with Donald Goodnow, and receiving his
letter stating that there was no list without verifying it with Judge
Taube. However, to state that what I should have done was to file a
motion for reconsideration to clarify the existence or non-existence
of the list when no part of Judge Taube's reason was true, whether
there was a list or not, I believe requires a reversal of your
Reprimand.
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Sincerely, |
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Paula J. Werme
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