Paula Werme v. Professional Conduct Committee

00-036

SUPPLEMENTAL ANSWER

ISSUE 1 - ACCUSING JUDGE TAUBE OF LYING

In reviewing the transcript following Wednesday's hearing, I was looking for information on the conflict of interest issue, but realized instead the answer to the question that I think is troubling this committee the most is contained in the transcript. I believe it explains my "leap" to allege intentional misrepresentation on the issue of the existence of the list.

• Joe Tropiano said (as the parties were identifying themselves), "Joseph Tropiano, uh, attorney, uh, the court asked me to be here for Mrs. *." p.1.
• Neil Reardon stated, "attorney for F *. - F * , in the abuse and neglect petition. And the court asked me to be here today." Id.
• Phil Cross said, "Phil Cross, your Honor, guardian ad litem for D. *." Id.

Phil Cross then addressed the issue of conflict, and there was discussion about that. p. 2. Judge Taube himself doubted that Guardians ad litem were necessary, and asked Phil Cross if he felt there was a need for one. pp. 3 - 4. Ev Hatch then brought up that it was required by the statute. p.4.

Side Note: Judge Taube's questioning of whether or not GALs were necessary likely influenced my interpretation of his statement on p. 9 that he didn't know the "difference in the roles" to mean that he didn't understand the difference between GAL and attorney. After all, after appointing them, he questioned the need for them. I didn't remember hearing the statement that he didn't know there was a difference in roles at the hearing, which is probably why I thought Judge Taube wrote it to the JCC, but I know I was distracted at least a few moments speaking with my clients.⁽¹⁾ If he didn't think Guardians ad Litem were necessary, why had he appointed them?

4. Judge Taube then asked me what I was doing there, and at whose request. This is a very strange statement from someone who must surely have seen my appearance, denied my motion for appointment, and indicated that he was planning on handling the counsel issue, inferring that he knew I was going to be at the preliminary hearing. I told him that I was there at the request of the parents [not to mention I had filed the appearance.] p.5. I further represented that I was aware of the case and what was happening for some number of months before the petitions were filed, and that they had indicated an interest in having me represent them that long ago. p. 6.

Note, "some number of months" was a period of almost a full year.

5. I told the court that I was aware of no rule that prohibited my appointment. p.6.

I stated this because I was on absolutely no court list to be appointed, but had nevertheless been appointed in some cases I had asked for appointment despite having no idea of court appointment rules. This is verified in supplemental exhibits submitted. Judge Taube did not respond to that statement in any way to tell me that I was incorrect. Based on my own experience at being appointed in various cases, and his failure to correct me, he reinforced my presumption that not being included on "the list" was not a bar to appointment. He further verified it in his testimony to the committee when he stated that if no one was available from the list, then the court appointed someone they knew. If the "list" was as important as he said it was,⁽²⁾ he could have appointed Phil Cross, who represented her in the neglect petition below, instead of Joe Tropiano to represent the mother, who represented her in the proceeding below. His conflict problem would have been solved. Also, he knew me, so what was the bar to appointment?

• When he stated that he was not appointing me because he would not be "dictated to," I fully believed him. The reason I pressed him was not because I was "mad" but because it wasn't a legally sufficient reason to deny my request, and I had just stated that. See paragraph 5.

• Most importantly, as to my knowledge that he had not appointed attorneys after I pressed Judge Taube on the issue, there was discussion about who he would be appointing (future tense).
• Ev Hatch stated, "In terms of the logistics [of the conversation regarding conflict on the basis of mental incompetency] if - if that kind of conversation could take place today, I think that would be the best thing. Attorney Tropiano is here. He was, I guess, going to be appointed to something in this case. He could take Phil Cross's place as guardian ad litem, uh, for the mother, if Phil Cross still insists he has to withdraw." This clearly implies that Joe Tropiano was not appointed to anything yet. p.9.
• I then asked the court "May - might I ask which attorney it is that you would be considering appointing for one or the other of my clients? Because it might be best if we have the conversation with four people?" p.12. Judge Taube suggested having the conversation with Attorney Reardon and Tropiano. Further, he stated, "And then perhaps after discussion, they may even have a preference for the - which one. You know, and I don't mean to make a lottery out of this, but to have some discussion about the issues and how best to proceed. And it may be self-selecting before we're done. Okay? Attorney Reardon.?" p. 12.

If being on the list was the first preference of the court, wouldn't he have chosen Attorney Reardon right then, and not considered Joe Tropiano?

Judge Taube himself verified in the hearing that he hadn't appointed the attorneys at that point. His ORDER clearly stated otherwise.

In my SECOND MOTION TO RECUSE JUDGE TAUBE, paragraph 6 (which certainly could have been more clearly written.) refreshes my memory as to my thinking at the time I made the complaint. It states:

6. Pursuant to the facts and the response of Attorney Goodnow, undersigned attorney believes that the statements of Judge Taube in Order dated January 26, 2000, in which he stated, "the Court declined the appointment because it had already appointed counsel from its approved list of counsel" constituted intentional misrepresentation, because there does not exist an "approved" list of counsel, and furthermore, there are no rules in place nor procedures to follow in order to be placed on an "approved" list of counsel."

The facts I was referring to was the FACT that he plainly had not appointed attorneys prior to hearing, so his reason that he had denied my appointment because he had already appointed attorneys for my clients was a lie, at least from my point of view. If I had left off the qualifier "of the approved counsel list" and the conclusion I came to that there was no list, the statement would have been 100% accurate. I didn't remember that portion of my reasoning during the testimony that verified it, but certainly the fact that he had not, in fact, appointed counsel, influenced my perception of his explanation for the list when Donald Goodnow replied promptly to my request for information that his office was.

In addition, Donald Goodnow verified that there were no rules to follow to be place on the list. (The rules were the rules of the NH Judicial Counsel on the appointment of criminal contract attorneys, not rules for appointment to parental termination cases in family court. There was no rule requiring the Family Division to use that list, nor was there a prohibition on my appointment as a result of not being on the list.) The committee also asked me how knew he had not appointed attorneys, and I had not remembered that part of the hearing, but the transcript verifies that I knew it.

Furthermore, my statement was based on my good-faith inquiry into the facts, following directions of the court clerk, as instructed by Judge Taube, and requesting the information from Donald Goodnow at the Administrative Office of the Court. His reply was that "the Administrative Office of the Courts is not in possession of any rules that would guide the trial court in "the exercise of their discretion" in appointing attorneys in abuse and neglect cases." Judge Taube indicated in his reply to the JCC that Heidi Boyack at the Administrative Office of the Courts could verify his statements about the policy of the family court to use the criminal contract attorney list. I never bothered to check with Heidi Boyack, because Donald Goodnow had stated that his office had no rules to guide the judges in the exercise of their discretion. Heidi Boyack worked there. Perhaps it's splitting hairs, but I made a good faith argument to the court that no rule prohibited my appointment, and I think I was entitled to a make a conclusion that (1) in the absence of a rule, and based on the representation by Donald Goodnow that there was no list, and that attorneys were appointed based on judicial discretion, that there was no list to implement a non-existent rule. In the face of the obvious fact that the transcript shows that Judge Taube indeed had not appointed attorneys AT ALL prior to the hearing, contrary to his testimony before this committee, I don't think my conclusion was an unjustified leap.

Certainly when one considers that:

• Judge Taube indicated that he hadn't appointed me because I wasn't on "the list" and then had Joe Tropiano, (who was also not on the list,) in the room and ready to be appointed indicates that Judge Taube's explanation in his ORDER was NOT the truth,
• Judge Taube explained to this committee that if no one from the list was available, then the court would appoint someone they knew. I have no idea how well Judge Taube knew Joe Tropiano, but he certainly knew me, so that reason was no bar to my appointment.
• There was no rule barring my appointment,
• The Administrative Office of the Court (which administrates the family court system through Heidi Boyack) had no rule that would govern the appointment of attorneys, which Donald Goodnow characterized that decision something that was at the discretion of the judge Was I suppose to think that Donald Goodnow lied?

I now find myself in the bizarre position of possibly being sanctioned for "recklessly" calling Judge Taube a liar, while at the same time I find enough inconsistencies between the transcript and his own testimony to warrant yet another referral letter to the Committee on Judicial Conduct for misrepresentation.

When one makes the comparison to the actions various others who have had roles in complaints to the PCC regarding my behavior, it becomes obvious that I'm being charged for drawing the exact sort of conclusion that others have done to bring me before the committee, namely jumping to a conclusion without fully investigating the facts or the law.

Unlike those who reported me, I DID attempt a good faith effort to investigate the facts. In fact, I only jumped to one conclusion regarding Judge Taube that was incorrect. The fact was that his ORDER did not state the truth, that he had already appointed attorneys to represent my clients were not unfounded conclusions. Consider:

• Judge Lyons made a conclusion that I intended to defraud the court based on his conclusions from the facts available to him on the acceptance of a retainer, and I think this committee can easily make a finding that in fact there is no law prohibiting such behavior. Was this a reckless allegation against me?
• Judge Lyons further reported me for not making a good faith argument, after he had canceled the hearing where he could have determined the facts. Doesn't that make Judge Lyon's other complaint reckless?
• Judge Smukler reported me for violating the wiretapping statute when the elements of the alleged "crime" were clearly not there. In addition, the constitution, ("a person is entitled to all proofs in his defense), clearly would carve out an exception for doing so in the defense of Article 15 litigation. He didn't consider the law. (I believe his statement in the hearing was "There's a law against that, isn't there?) Was his allegation reckless?
• Jim Anderson made the statement to Judge Smukler that my conduct in taping Nancy Rollins was "highly illegal." Was his allegation reckless?
• Judge Smukler further reported me for violating the confidentiality provisions of N.H. Rev. Stat. Ann. 169-C:25 for revealing "confidential information" when the statute clearly prohibits the court from disclosing documents, but makes no such broad prohibition regarding the Respondents, and if it did, it would violate the First Amendment and eviscerate Article 22. Was that allegation reckless? HE didn't consider the law or either constitution. Note: this was again based on Jim Anderson's statement, again to Judge Smukler that I had to be "stopped" from revealing confidential FACTS about children who were affected by neglect and abuse petition. How dare he presume that parents' First Amendment and Article 22 rights were non-existent?

• One of the committee's own members must recuse herself from all hearings and deliberations regarding my complaints because she lied about me to a newspaper reporter. Virginia Beecher lied to Steve Varnum of the Concord Monitor when she stated that I had not contacted her about what I wanted to do about my license plate she revoked without legal authority to do so.
• Finally I will point out that Judge Lyons' complaints were assigned to a member of the hearing panel for investigation, who actively participated in the hearing. Mr. Cardello never contacted the one witness who could have verified my version of the facts, yet the committee scheduled this complaint for a hearing. Wasn't Mr. Cardello himself reckless in his investigation, necessitating an unnecessary hearing?

I do understand the need for members of the bar to be attentive to both the fact and the law, and I certainly understand the need not to make reckless statements concerning the integrity of other members of the bar. That need includes the need of the PCC to investigate both sides of a referral before bringing charges. My conclusion about Judge Taube was based on multiple factors, and information I obtained both in and out of the courtroom. Judge Taube was, if not intentionally misrepresenting the fact of the existence of "the list" at least grossly misstated the facts by stating in the order that he had already appointed other counsel, and in stating that his reason for not appointing me was that I was not on the "list," because not being on "the list" was not a legal bar to being appointed to the case.

If, as Judge Taube stated to the committee, that confidence in the legal system is a high priority right now, a finding against me without simultaneously generating multiple complaints against Judge Smukler, Judge Lyons, Judge Taube and Jim Anderson would be disingenuous.

ISSUE 2 - THE "CONFLICT ISSUE"

Once again, I reviewed the transcript of the December 15 hearing, and found it to be extremely interesting in explaining both my action, and those of Judge Taube. First of all, you will recall that it was Ev Hatch who stated, "Mr. and Mrs. * have conflicting interests." p.8. I took offense at Ev Hatch's statement, because I was the person who had spoken with them, filed the answer alleging that the adjudicatory consent order should be set aside for not being knowing, intelligent, and voluntary. That posed a potential conflict in the form of possibly being required to testify against one another, but not an actual conflict. Had I realized that there was no adjudication against one parent at all, it would have been dead as an issue altogether. Judge Taube then stated that he "didn't know what their interests were at that point."

There was specific discussion about their interests, and I stated, "I don't see a difference in their interest at this point, your honor." p. 10.

He pressed me on that point, and when he said, "I cannot, um, I - I do not think that you know the - even if you did, but you've really just gotten to know these people - see how you could represent that their interests are so inseparable that there's no possibility of a conflict anywhere along the line."

I said, "I haven't said that, you Honor. I've said that there's no conflict I can see at this point." pp. 10 - 11. I represented correctly both the law and the facts on the case to the court.

I was not required to disclose the confidences of my clients to the court to justify my actions or my statement.

This was based on my opinion that 1) I had just challenged the validity of the consent decree, and 2) mental incompetence did not pose a conflict issue.

Judge Taube's response revealed his thinking, and his own misunderstanding of Rule 1.7:

"Yeah. So what if we're in the middle of a trial and we have to appoint counsel and get somebody in at that point? Um, no. I - I can't accept that representation, and I - it doesn't make sense, and it's contrary to every kind of case I've ever done. I-um, if you wish to represent one of the parties and they want you to represent them, be my guest. I will appoint counsel for the other party."

Who doesn't understand Rule 1.7 here? Judge Taube is expounding his view that a potential conflict prohibits joint representation when the rule actually states that even with an actual conflict, the parties can be jointly represented if they consent after knowledge of the consequences. He's also expressing the mistaken view that once I've had the confidences of both parties, that I can now represent one and drop the other client. Keep in mind that I'm being charged with giving the impression that I didn't understand the rule. A finding against me for giving an impression would certainly imply that Judge Taube should be reported for the same conduct.

Most importantly, Judge Taube indicated that "the court might need to make different findings on each party. And, um, it poses a very real and, um, potential conflict.

Later in the hearing, I stated, "I can't find any rule against it as long as there is a knowing consent after they understand what the potential conflicts are." p.14. (Note: the memorandum of Joe Tropiano concluded that there were potential conflicts, but no actual conflict.)

After Joe Tropiano stated that the clients understood that they might have to give evidence against one another, Judge Taube stated: "Well, it's not only that, but the court may find one is competent, the other isn't. There might be an award of custody to one as opposed to the other. Um may eventually move to terminate, uh, and - in probate court,⁽³⁾ that one parent might lose their - his or her rights. Uh, and all the way down the line, there's all sorts of , uh, where they might disagree or they might, uh, where one might want to enter into an agreement with the state and the other doesn't." pp. 16 - 16. Judge Taube is presuming:

• a conflict based on incompetence here, and he's incorrect on the law.
• A conflict between the parties if the court found that termination was necessary for one parent but not the other.

Judge Taube was WRONG.

It was at that point in the proceedings that Judge Taube wanted to have me read Rule 1.7 to make sure I understood it. In the very same breath of accusing me of not understanding the conflict of interest rule himself, he failed to comprehend that the issue of mental incompetence created no conflict for my clients. Judge Maher correctly ruled that there was no conflict based on incompetence. The reason follows:

N.H. Rev. Stat. Ann. 170-C, the Termination of Parental Rights Statute, proscribes a two-step process to terminate parental rights. First. any one of the alleged grounds for termination of rights must be proven beyond a reasonable doubt. In Re: Kristopher B., 125 N.H. 678 (1984). So, the state in this case would have grounds for terminating rights with respect to each parent by proving one of either of two grounds alleged. They could not, however, terminate at all on a parent for whom it found NO grounds to terminate, even if it made a finding against the other parent.

The second part of adjudicating a Termination of Parental Rights, however, is the issue of the "best interest" of the child. The court, if it finds grounds against one parent and not the other, it must still consider the best interests of the child before it terminates the parent on whom it found grounds. N.H. Rev. Stat. Ann. 170-C:11, III. In Re: Taryn D., 141 N.H. 376 (1996) A finding against one parent, in particular on the issue of mental incompetence, would help the other parent's chances of winning the petition. The court might find that even though grounds were proven, then it still wasn't in the best interest of the child to terminate because even though grounds were proven, it wouldn't make the child available for adoption. The "conflict" Judge Taube saw was his own conflict on deciding whether or not to terminate based on a finding of grounds to terminate and on the best interests of the child, not a conflict of interest.

ISSUE 3 - THE ISSUE OF DISCUSSING "ADVANTAGES OF JOINT REPRESENTATION" AS REQUIRED BY THE RULE

Judge Taube mentioned in the PCC hearing that the issue was "the whole rule" and not "part of the rule," and that I had clearly stated in court and on the web page I had not complied with that portion of the rule. In the PCC hearing, however, he also stated that he himself could have worded it better, and that in discussing the advantages of joint representation, it really meant discussing the pitfalls of dual representation.

In court, he stated: "[H]ave you discussed with them the advantages of having - of - of having two different lawyers?"

I HAD listened VERY carefully to that rule as it was read to me in the court room, and interpreted it as requiring discussion of ALL ADVANTAGES, not just those related to conflict. I did not feel comfortable answering "yes" to that question. Although I may not have "given the impression that I understood the rule," I believed that the plain wording of the rule meant to discuss advantages as they related to the pitfalls of dual representation and the advantages of joint representation whether or not they were related to conflict issues.

In the split second I had to think about it, I intuitively knew that I could NOT represent to the court that I had discussed ALL advantages involved in joint representation, because I likely could not have thought of them all. That was the reason I hesitated, and "gave the impression" I didn't understand the rule. I thought the plain wording required discussing the advantages and disadvantages as they related to the issue of conflict. When the wording was read to me, I interpreted it to require discussing ALL OF THE ADVANTAGES AND DISADVANTAGES instead of those related simply to conflict. (Don't forget the wording that the clients must consent with knowledge of the consequences, which would require discussing the disadvantages of joint representation.) This was reflected in my answer:

Werme "I guess - honestly, your Honor, I don't know if we have had the advantage of two different lawyers. Certainly, when I'm not appointed on a case, in particular with respect to getting other court appointed services. And, um, we will be arguing that line about selection of mental-health (note, here I'm discussing one of the most important disadvantages of MY representation, as opposed to court appointed representation, which is the distinct possibility that the court will also not provide a mental health care expert(s) to testify for the defense. It's a huge disadvantage of my representation that has nothing to do with conflict.).

The Court: But counsel.

Werme: care providers and things like that.

The Court - why - you're getting - you're getting - you're now getting into the other - something else.

That's right. I was trying to point out that I had at least done my best to comply with the rule as I interpreted it, which was to discuss both advantages and disadvantages so that my clients made the choice with full knowledge of the consequences. In the very next sentence, I discussed Judge Taube's apparent interpretation of the rule:

Werme: Well, we have discussed at length the disadvantages of having two lawyers, I will tell you that much, because I've had a lot of conversations with both of them and their confidante about, uh, the problems they've had with two lawyers and, uh, lack of united front sort of thing. And they're more concerned, at this point, about putting on a united defense to protect their family interests. pp. 18 - 19.

If, as Judge Taube represented to this committee that what was really required by the rule was to discuss the disadvantages of dual representation, why wasn't he satisfied with this answer?

In short, with respect to whether or not I had discussed the advantages of joint representation, Judge Taube took the first answer, and despite his own interpretation that advantages of joint representation are really one and the same as the disadvantages of joint representation, he ignored my follow-up representation to him that I had actually done exactly what he interpreted the rule to require.

When I finally sent in verification to the court that I had discussed the advantages of joint representation, what I had really discussed was only a few more reasons unrelated to conflict that joint representation would be advantageous.

The rules of professional conduct don't require perfect lawyering, so the rule can't reasonably be required to discuss with clients every reason in the world. It has to require only discussing the reasonably foreseeable advantages.

As Judge Taube interpreted the rule for this committee, I had totally complied with the rule by December 15.

As I interpreted the rule to discuss with the clients the reasonably foreseeable advantages (and frankly, all the advantages I could think of), I complied with the rule after December 15.

One thing I was NOT required to do to comply with Rule 1.7 was to buy Judge Taube's incorrect interpretation that mental incompetence caused a conflict in my clients. It did NOT. When Judge Taube said to this committee that every attorney in the room thought I didn't know what I was talking about, first of all, Judge Taube didn't ask every attorney in the room if they thought I knew what I was talking about, and second, no attorneys were considering that perhaps the adjudications of neglect were invalid except me, and no other attorney had the information I was required to consider on the wishes of the clients.⁽⁴⁾

Joe Tropiano, in his memo to the court, (Exhibit 16), also didn't even mention mental incompetence as a possible conflict in his brief. He did correctly state that once I had the confidences of both parents, that it would not be proper for me to represent one. Exhibit 16, p. 3. I stated that to the court when I said that it was an "all or nothing" proposition. Transcript, p. 19. "Where a lawyer is prohibited from representing multiple parties, however, the conflict may not be eliminated by dropping one client in favor of another." Picker International v. Varian Associates, 869 F.2d 578 (CA FC 1989), Harte Biltmore Ltd. v. First Pennsylvania Bank, 655 F.Supp 419 (DC S.Fl. 1987). It was an all or nothing proposition.

Joe Tropiano concluded his brief that "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." The conflict issue continued well past the recusal of Judge Taube, and Judge Maher finally asked another attorney to view the file to make just that determination. He withdrew the order when the petitions were dismissed and the Division decided to proceed on the issue of mental incompetence. Exhibit 32 in materials on complaint.

ISSUE #4 - IMPUGNING THE INTEGRITY OF THE COURT

Please see affidavit of Eric Werme. I did not write the statements that most offended Judge Taube.

Judge Taube also was extremely upset that I had not presented his side of the story on the web page. I was prohibited by the rules of the JCC from disclosing his communication, as the complaint was filed under the old rules of confidentiality. His reply will certainly be posted now that it is part of the record in this case, and I now know he wants it there.

BACKUP DOCUMENTS SUBMITTED WITH THIS SUPPLEMENTAL ANSWER

See page following for documents that relate to:

1) my belief based on experience in cases I had handled that being on any "lists" was not a bar to court appointment.

• My experience that Judge Taube's orders and courtroom discussion, from my point of view, show that his thinking on the law was frequently incorrect, and that he proceeded to make orders against parties not before the court as though they were before the court.
• The fact that Judge Taube stated to this committee that in the case in Manchester District Court that the father had not been involved in the life of the child. That was incorrect, and my experience was that he frequently ignored facts in favor of my clients in making his decisions. See Document V, ¶ 6. He made the same incorrect assumption in the other case where I represented the non-offending father.
• Joint representation is codified in Georgia and Missouri. I have case law that relates to other states' practices of joint appointment as well.
• Evidence based on my own experience, that being on "he list,"or in the alternative, being known to the judge, is not necessarily a requirement for appointment in family court. Document Q, and affidavit of Paula Werme, ¶ 9.

CONCLUSION

The committee has enough information at its disposal to dismiss the complaint. If it does not dismiss the complaint, there is a serious probability that a finding that "giving the impression" of not understanding a rule of professional conduct, or drawing incorrect conclusions about another attorney's behavior based on an incomplete set of facts will result in an avalanche of professional conduct complaints from attorneys based on the perception by attorneys who do not have 100% of the information the attorney who's job it is to comply with the rule had. Certainly in the hearing, I was unwilling to compromise my client confidences to correct Judge Taube's mistaken impressions about my client's wishes. My experience with Judge Taube was him getting both facts and law incorrect. He bases his decisions on his own opinion of what the law should be, instead of what it is. (e.g. his statement to the committee that he couldn't just give a child to a parent who walked into the court and asked for it. . . that is precisely what he must do with a fit parent.) My experience with many judges in this state is that they're unwilling to think through the arguments I give them on jurisdiction, or accord my clients the strong protections the constitution gives them as parents.

My experience is also quite different than most lawyers in the state. I see judges operating almost exclusively in closed courtrooms, where the power of public opinion to keep the quality of their decisions based on law and fact instead of emotion and personal opinion is absent. I can't let it get me down, or I won't do the best job for my clients.

Respectfully submitted,

November 19, 2001 Paula J. Werme

1. Not remembering the source of one's knowledge is actually a normal memory deficit phenomenon called "source monitoring error." A person remembers the relevant fact, but does not remember the source of knowledge. I learned about it from reading books about interviewing children in child abuse cases, and from hearing an expert on the subject, (Debra Poole, from Central Michigan University) speak at two different child abuse defense CLE's. Discussing events that did not happen as if they did can cause young children to have those events planted in their memories as if they really happened.

2. I believe his statement to the committee was to the effect of "she wasn't on that list, so it ended it right there."

3. This is also a strange statement. We were in court on a petition to terminate rights.

4. See footnotes on Rule 1.7 in the Rules. It required me to consider the wishes of my clients.