May judges on the Judicial Conduct Committee report an attorney's false complaint and disclose confidential investigation records to attorney discipline officials?

Plain-English summary

The Judicial Conduct Committee investigated a lawyer's complaint against a judge and concluded that the complaint's factual predicate had not occurred. Judges on that committee believed the lawyer had knowingly supplied false information. They asked whether they could give their investigative report and work product to the Attorney Discipline Office despite the confidentiality rule for their proceedings.

The Advisory Committee read Code of Judicial Conduct Rule 2.15(B), requiring a judge to report known serious lawyer misconduct, and Rule 2.15(D), requiring appropriate action when misconduct is substantially likely, alongside Supreme Court Rule 40(3)'s confidentiality provisions. It concluded that Rule 40(3) did not bar a full report to the Attorney Discipline Office in these circumstances. The opinion reasoned that shielding dishonesty would not serve the stated purposes of confidentiality and cited State v. Merski on countervailing interests in discipline records.

The Committee did not treat all allegations as sufficient for disclosure. Its footnote says the Judicial Conduct Committee must carefully consider the strength of the attorney-misconduct information before releasing otherwise confidential material, to avoid discouraging legitimate judicial complaints. It found that the requesting committee had considered both the confidentiality rules and the evidence's strength.

In practice

For the investigated false complaint described, the opinion permits a full report to the Attorney Discipline Office despite the confidentiality rule. Its conclusion is tied to the evidence of misconduct and the Code's reporting obligation; the opinion expressly cautions against disclosure that would chill legitimate complainants.

Common questions

Q: Did confidentiality under Supreme Court Rule 40(3) bar the report in this case?

A: The Advisory Committee concluded that it did not prevent the Judicial Conduct Committee from fully reporting the attorney's misconduct to the Attorney Discipline Office.

Q: May the Judicial Conduct Committee disclose work product whenever an attorney complaint is dismissed?

A: The opinion does not say that. It stresses that the committee must consider the strength of evidence of attorney misconduct before disclosing confidential investigation material.

Q: Which judicial reporting duties did the Committee consider?

A: It discussed Code Rule 2.15(B) on known attorney misconduct and Rule 2.15(D) on information indicating a substantial likelihood of misconduct.

Background and rules framework

The opinion examines New Hampshire Code of Judicial Conduct Rule 2.15(B) and (D) and Supreme Court Rule 40(3), especially its confidentiality provisions for Judicial Conduct Committee files and work product. It also discusses the Attorney Discipline Office's confidentiality rule in Supreme Court Rule 37(h) and the state's disciplinary cases concerning attorney dishonesty.

Citations and references

New Hampshire Code of Judicial Conduct:

• Rule 2.15(B) and (D), reporting known misconduct and taking action on substantially likely misconduct.

Supreme Court Rules:

• Rule 40(3)(a), (d) and (j), Judicial Conduct Committee confidentiality and exceptions.
• Rule 37(h), Attorney Discipline Office confidentiality and disclosure.

Cases cited:

• State v. Merski, 121 N.H. 901 (1981), confidentiality and countervailing interests in disciplinary evidence.
• Astles' Case, 134 N.H. 602 (1991), attorney dishonesty.

See also

• NH Judicial Ethics Op. 2022-ACJE-01: Helping a parent with insurance

Source

• Landing page: New Hampshire Advisory Committee on Judicial Ethics opinions
• Original PDF: Opinion 2023-ACJE-01

Original opinion text

Best-effort extraction from the official published PDF. The linked PDF is authoritative.

STATE OF NEW HAMPSHIRE

SUPREME COURT

ADVISORY COMMITTEE ON JUDICIAL ETHICS

DOCKET NUMBER: 2023-ACJE-01

DATE ISSUED: August 28, 2023

QUESTION PRESENTED:

Whether the New Hampshire Judicial Conduct Committee (“JCC”) may disclose its investigation report, including its work product, to the Attorney Discipline Office (“ADO”) when it discovers that the complainant, an attorney, has knowingly provided false information to the JCC, despite New Hampshire Supreme Court Rule 40(3) governing confidentiality of JCC investigations, but consistent with a judge’s obligation to report attorney misconduct to the ADO pursuant to Judicial Code of Conduct Rule 2.15(B)?

FACTS PRESENTED:

The JCC received a report of judicial misconduct submitted by a lawyer who had appeared as a litigant, as opposed to an advocate, before the trial judge at issue. After docketing the complaint and receiving the judge’s response, the JCC conducted a preliminary investigation. The result of the JCC’s investigation revealed information which led to the committee’s determination that the factual predicate for the complaint did not occur, and thus the JCC dismissed the complaint.

The JCC members involved in the investigation believed that it was appropriate to report the lawyer’s false claim to the ADO. However, the JCC members determined that they could not make a meaningful report without referencing or providing the ADO with the internal memoranda and work product created as part of the JCC’s investigation. Pursuant to Rule 40(3), these JCC investigatory materials remain confidential even after a complaint is dismissed. The judges that serve on the JCC recognized that failing to report misconduct of a member of the bar would run afoul of the judges’ duty to report misconduct under Judicial Code of Conduct Rule 2.15(B). Therefore, the judges serving on the JCC requested an advisory opinion from this committee addressing the perceived conflict between the duty to report misconduct under Judicial Code of Conduct Rule 2.15(B) and the JCC’s duty of confidentiality set forth in Rule 40(3).

APPLICABLE PROVISIONS OF THE CODE OF JUDICIAL CONDUCT:

New Hampshire Code of Judicial Conduct Rule 2.15(B) governs a judge’s duty to report known attorney misconduct and provides that:

A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the

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lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.
Sup. Ct. Rule 38, Code of Judicial Conduct Rule 2.15(B) (emphasis added).

Comment [1] to Rule 2.15(B) provides that:

Taking action to address known misconduct is a judge’s obligation.
Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate disciplinary authority the known misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct among one’s judicial colleagues or members of the legal profession undermines a judge’s responsibility to participate in efforts to ensure public respect for the justice system.

Sup. Ct. Rule 38, Code of Judicial Conduct Rule 2.15(B), Comment [1] (emphases added).

New Hampshire Code of Judicial Conduct Rule 2.15(D) governs a judge’s duty to report substantially likely attorney misconduct and provides that:

(D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action.

Sup. Ct. Rule 38, Code of Judicial Conduct Rule 2.15(D).

Comment [2] to Code of Judicial Conduct Rule 2.15 provides, in relevant part, that:

[A]ctions to be taken in response to information indicating that a lawyer has committed a violation of the Rules of Professional Conduct may include but are not limited to communicating directly with the lawyer who may have committed the violation, or reporting the suspected violation to the appropriate authority or other agency or body.

Sup. Ct. Rule 38, Code of Judicial Conduct Rule 2.15, Comment [2].

APPLICABLE PROVISIONS OF THE NEW HAMPSHIRE SUPREME COURT RULES:

Rule 40(3) governs the confidentiality of proceedings before the JCC, including the JCC’s obligation to maintain confidentiality. It provides that:

(a) As provided in this section, all proceedings and all information, communications, materials, papers, files, and transcripts, written or oral, received or developed by the committee in the course of its work, shall be confidential. No member of the committee or its staff and no employee of the committee shall disclose such proceedings, information, communications, materials, papers, files, or transcripts, except in the course of official duty and as otherwise authorized in this section.

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Sup. Ct. Rule 40(3)(a) (emphases added).

Rule 40(3)(d) governs the timing and extent of disclosure of JCC records when the JCC dockets a complaint, and provides in relevant part that:

(d) Report of Alleged Misconduct Docketed As A Complaint. All records and proceedings relating to a report of alleged misconduct which is docketed by the committee as a complaint after it has been determined by the committee that the report is against a judge and satisfies the requirements for docketing as a complaint shall be available for public inspection (other than work product, internal memoranda, and deliberations) upon the earliest of the following:

(1) Upon preparation and filing of a statement of formal charges, the committee’s file (other than work product, internal memoranda, and deliberations), the hearing, and the committee’s disposition shall be public. The committee’s deliberations shall be confidential.

Sup. Ct. Rule 40(3)(d); Rule 40(3)(d)(1) (emphases added).

Rule 40(3)(j) creates a law enforcement exception to confidentiality, providing:

(j) . . . Notwithstanding the provisions of this rule, the committee may disclose to an appropriate law enforcement authority any matter that comes before it, and shall, at the same time, inform the chief justice or the senior associate justice of the supreme court of the matter.

Sup. Ct. Rule 40(3)(j).

New Hampshire Supreme Court Rule 37 governs the attorney discipline system. Rule 37(h) delineates the ADO’s ability to disclose otherwise confidential information, and provides in relevant part that:

(h) . . . The attorney discipline office may disclose relevant information that is otherwise confidential to agencies authorized to investigate the qualifications of judicial candidates, to authorized agencies investigating qualifications for admission to practice or fitness to continue practice, to law enforcement agencies investigating qualifications for government employment, and to law enforcement agencies authorized to investigate and prosecute violations of the criminal law. . . .

Sup. Ct. Rule 37(h).

The Purpose of Confidentiality in Judicial Discipline Proceedings

The purposes behind providing confidentiality for judicial disciplinary proceedings are to: “1) encourage participation in the disciplinary process by protecting complainants and witnesses from retribution or harassment, and to reduce the possibility of subornation of perjury; 2) protect the reputation of innocent judges wrongfully accused of misconduct; 3) maintain confidence in the judiciary by avoiding premature disclosure of alleged misconduct; 4) encourage retirement as an alternative to costly lengthy formal hearings;
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and 5) protect commission members from outside pressures.” Geyh, Alfini, Lubert and Shaman, Judicial Conduct and Ethics § 11.12(1) (5th Ed. 2013). “The real purpose of any privilege [of confidentiality] is not to exclude relevant evidence, but simply to facilitate activities which require confidence.” See State v. Merski, 121 N.H. 901, 911 (1981).

Attorney and Judicial Discipline Proceedings are not Subject to Ordinary Procedural Safeguards

In State v. Merski, an attorney sought to suppress evidence from an investigation conducted by the Professional Conduct Committee (PCC) in a subsequent criminal proceeding. The court held that the PCC’s duty of confidentiality did not render evidence from the PCC’s investigation inadmissible. Id. at 911 (“Even assuming, arguendo, a violation of the confidentiality rule, we are not disposed to impose the exclusionary rule as a means of enforcement.”). The Merski court held that any privilege “is not fixed and unbending and must yield to countervailing considerations.” See id. (citations omitted).

The Merski court also explained that:
an attorney is an officer of the court, and subject to the control of the court, which has summary powers of investigation . . . The public is entitled to ample protection against the danger of any abuse of the great powers of the office which the public . . . has conferred upon him.

See id. at 908 (citations omitted). The Merski court further described the nature of disciplinary proceedings as follows:

Disciplinary proceedings . . . are not for the purpose of punishment, but rather seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministration of persons unfit to practice . . . [Disciplinary proceedings] are sui generis, not civil, or criminal or administrative in nature, but special in character, resulting from the inherent power of courts and to which not all of the ordinary procedural safeguards apply.”

See id. at 909 (internal citations and quotations omitted) (emphasis added).

The Underlying Purposes of Confidentiality do not Support Maintaining Confidentiality Regarding Attorney Dishonesty

As addressed above, one purpose behind providing confidentiality is to “encourage participation in the disciplinary process . . . and to reduce the possibility of subornation of perjury.” See Geyh, Judicial Conduct and Ethics § 11.12(1). However, the attorney here may have engaged in perjurious conduct, meaning that this purpose of confidentiality would effectively be defeated by shielding the attorney’s misconduct via confidentiality. No other underlying purpose of confidentiality appears to be implicated by the facts presented.

Where attorney misconduct is concerned, “the real question at issue . . . is the public interest and an attorney’s right to continue to practice a profession imbued with public trust.” See Merski, supra, at 909 (internal citations and quotations omitted). The New Hampshire Supreme Court has consistently held that attorney dishonesty is the most 4

damaging form of misconduct with respect to that trust: “no single transgression reflects more negatively on the legal profession than a lie.” Astles’ Case, 134 N.H. 602, 606 (1991); see also Mesmer’s Case, 173 N.H. 96, 109 (2020); Bosse’s Case, 155 N.H. 128, 132 (2007); Kalil’s Case, 146 N.H. 466, 467 (2001); Nardi’s Case, 142 N.H. 602, 606 (1998).

ADVISORY OPINION ON THE QUESTION PRESENTED:

Despite the lack of an explicit exemption, the Advisory Committee on Judicial Ethics finds that it is unlikely that the requesting judges would be found to be in violation of Rule 40(3) by referring the matter to the ADO along with disclosure of the record of investigation. The Committee finds it is reasonable to conclude that Rule 40(3) confidentiality may be abridged in the interests of justice and preservation of the public trust as well as to ensure broad compliance with Rule 2.15(B) and (D). The New Hampshire Supreme Court’s interest in preserving the public trust and its intolerance for attorney dishonesty are clear and uniform. The Committee believes that no underlying purpose of confidentiality would be served by applying the privilege in a rigid fashion to shield instances of attorney misconduct which reflect negatively upon the attorney’s honesty and/or trustworthiness. 1 Further, the Committee can conceive of no compelling reason to apply a higher confidentiality standard to inculpatory information regarding an attorney when possessed by the JCC than when possessed by the ADO, the PCC, or by a judge that is unaffiliated with the JCC. In any such situation, protection and preservation of the public trust are the prevailing considerations.

“Taking action to address known misconduct is a judge’s obligation.” See Rule 38-A, Judicial Code of Conduct Rule 2.15(B), comment [1]. The Committee believes that the New Hampshire Supreme Court’s interest in protecting and preserving the public trust, and its prior holding in State v. Merski, supra—indicating that confidentiality regarding records of attorney misconduct may be waived in the interests of justice—strongly support a conclusion that Rule 40(3) does not prevent the JCC from making a full report of the attorney’s misconduct to the ADO. Further, the Committee cannot conclude that Rule 40(3) confidentiality creates a safe harbor for misconduct that reflects adversely on an attorney’s honesty or trustworthiness.

THIS ADVISORY OPINION IS ISSUED BY UNANIMOUS CONCURRENCE OF ALL PARTICIPATING COMMITTEE MEMBERS.

August 28, 2023
Date
Amy B. Messer, Member

1The Advisory Committee is mindful that one purpose of maintaining the confidentiality of JCC investigations is to encourage participation in the disciplinary process and protect participants and witnesses from harassment or retribution. It is important that actions not be taken by the JCC that would chill individuals from coming forward if they believe judicial misconduct has occurred. Therefore, the JCC must carefully consider the strength of the information regarding attorney misconduct before deciding to move forward with disclosure of otherwise confidential information. Here, the JCC appears to have met that obligation. The JCC carefully considered the confidentiality rules as well as the strength of the evidence of misconduct by the attorney before making the recommendation to disclose the information to the ADO.
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CAUTIONARY STATEMENT

The Committee’s role is advisory in nature. This opinion is not binding upon the Committee on Judicial Conduct. See Supreme Court Rule 38-A(3)(a).

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