Drucker's Case

577 A.2d 1198, 133 N.H. 326, 1990 N.H. LEXIS 70
CourtSupreme Court of New Hampshire
DecidedJuly 9, 1990
DocketNo. LD-89-002; No. LD-89-066
StatusPublished
Cited by21 cases

This text of 577 A.2d 1198 (Drucker's Case) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drucker's Case, 577 A.2d 1198, 133 N.H. 326, 1990 N.H. LEXIS 70 (N.H. 1990).

Opinion

JOHNSON, J.

The Supreme Court Committee on Professional Conduct (Committee) filed two unrelated petitions to suspend Leonard M. Drucker from the practice of law in New Hampshire. See Sup. Ct. R. 37(13)(a). The second petition alleges respondent Drucker’s failure to pursue an arbitration matter referred to him by a Connecticut attorney, in violation of the Rules of Professional Conduct, and requests a three-month suspension. Because he admits all the allegations in this petition, we will not discuss the facts, and consider it only with respect to the sanction to be imposed.

The first petition alleges that the respondent violated three Rules of Professional Conduct: Rule 1.7(b), by representing a client when the representation was materially limited by his own sexual interest in the client; Rule 1.8(b), by using information about the client’s fragile emotional state and mental disorder to her disadvantage by engaging in sexual relations with her, leading her to suffer emotional turmoil; and Rule 1.14(a), by failing to maintain a normal attorney-client relationship with the client, knowing she was in a fragile emotional state and had a diagnosed mental disability.

After the petition was filed, Robert Upton, II, was appointed by this court as a judicial referee, and a hearing was held before him on August 15-16,1989; See SUP. Ct. R. 37(13)(e). In his report, the referee found that the complainant’s “testimony concerning her sexual relationship with the Respondent was credible” and that “the Respondent’s denial of the sexual relationship was not credible.” The referee then set forth the following specific findings of fact.

The complainant, Cheryl M., retained the respondent in August 1987 to represent her in a divorce proceeding. At that time, Cheryl M. was under the care of a psychiatrist and was emotionally fragile. During one of their first meetings, Cheryl M. informed the respondent of her psychiatric treatment. The respondent told Cheryl M. that his marriage was also very stressful, and that he was attracted to her.

Despite the existence of conflicting testimony concerning the events that followed, the referee found as fact Cheryl M.’s allegations that she had sexual relations with Drucker on three occasions. The referee found her version of the events credible because “she remembered with great detail the events” and “[s]he also knew a great deal about the physical condition and habits of the Respondent” that she would not have “learned in a normal conversation with him.”

[329]*329At the initiation of the respondent, the affair between Cheryl M. and Drucker ended shortly after it began. Although short-lived, the sexual contact between the two caused Cheryl M. to become emotionally and physically attracted to Drucker. When he terminated the affair, she felt that it was another rejection in her life, but remained hopeful that his feelings for her would change and that he would be attracted to her once again. Cheryl M. wrote love letters to the respondent, which were not delivered, and she kept a diary that set forth her feelings about him. Several pages of this diary were discovered by her husband, who later confronted Cheryl M. about the affair in the presence of their son.

After the affair ended, Drucker continued to represent Cheryl M. in the divorce proceedings, but the referee found that she “was unable to separate her confidence in him as her lawyer from her unrequited love.” The referee concluded that this situation “had a deleterious [e]ffect on [Cheryl M.] and caused her to take actions in her marriage she might otherwise have avoided.” In addition, he found “that the Respondent knew or should have known that [Cheryl M.] would suffer emotionally as a consequence of his actions.” Based on these findings, the referee found that “[tjhe conduct of the Respondent in engaging in a sexual relationship with the Complainant under the circumstances set forth herein,” violated Rules 1.7(b), 1.8(b) and 1.14(a) of the Rules of Professional Conduct.

Throughout the proceedings before the Committee and the referee, the respondent denied that he engaged in sexual relations with Cheryl M. He urges us to dismiss the petition against him because (1) the Committee did not prove the allegations against him by clear and convincing evidence, (2) the referee did not specifically rule on the parties’ proposed findings of fact and rulings of law, and (3) the referee refused to order production of a medical record.

In reviewing the referee’s findings in an attorney discipline case, we must determine whether a reasonable person could reach the same conclusion as the referee based upon the evidence presented at the hearing. Bourdon’s Case, 132 N.H. 365, 370, 565 A.2d 1052, 1055 (1989); Fitzpatrick’s Case, 132 N.H. 211, 214, 566 A.2d 157, 159 (1989). If we determine that the record supports the referee’s findings and rulings, we then decide on an appropriate sanction to impose against the respondent. Wehringer’s Case, 130 N.H. 707, 710, 547 A.2d 252, 253 (1988), cert. denied, 109 S. Ct. 1103 (1989).

In his first argument, Drucker contends that the Committee failed to prove the alleged violations by clear and convincing evidence. See [330]*330Edes’ Case, 118 N.H. 815, 817, 395 A.2d 498, 499 (1978). He bases his contention on the referee’s failure to state explicitly that the Committee met its burden of proof by clear and convincing evidence. He also argues that more than a finding relative to the credibility of witnesses is needed to meet the clear and convincing standard, and that certain inconsistencies in Cheryl M.’s testimony raise serious doubts about her veracity. We disagree, and hold that the record, reviewed in light of the totality of the referee’s findings, illustrates that the evidence of Drucker’s misconduct was clear and convincing. See id.

Cheryl M. testified that she first contacted the respondent to represent her in her divorce on August 17,1987, and four days later she went to his office for an initial consultation. She was very nervous because they discussed her impending divorce, her marriage, her sexual relations with her husband and her emotional problems. She told him she had agoraphobia, which is an anxiety disorder, and that she was seeing Dr. Joseph Sack, a psychiatrist, for treatment of this condition. The evidence also suggests that she mentioned she was being treated with medications.

On August 24,1987, Cheryl M. returned to the respondent’s office to deliver a financial affidavit. She testified that she was, again, very nervous and kept tossing her keys in the air. He sat down next to her, held her hand, and said he was also in a stressful marriage. He then asked her to stand up, embraced her and kissed her. He apologized and said he would refer her to another lawyer. She declined the offer because she did not want to go through the process of telling another lawyer all the personal information she had just told Drucker. Later that day, he called her at home and asked her if she was all right. During the conversation he told her he was very attracted to her. She testified that the thought that he cared for her was especially comforting to her because she was so distraught about her home life.

Cheryl M.

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Cite This Page — Counsel Stack

Bluebook (online)
577 A.2d 1198, 133 N.H. 326, 1990 N.H. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/druckers-case-nh-1990.