Feld's Case

815 A.2d 383, 149 N.H. 19, 2002 N.H. LEXIS 180
CourtSupreme Court of New Hampshire
DecidedDecember 31, 2002
DocketNo. LD-97-009
StatusPublished
Cited by15 cases

This text of 815 A.2d 383 (Feld'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
Feld's Case, 815 A.2d 383, 149 N.H. 19, 2002 N.H. LEXIS 180 (N.H. 2002).

Opinion

Duggan, J.

On June 19,. 1997, the Supreme Court Committee on Professional Conduct (committee) filed a petition with this court requesting that the respondent, Steven E. Feld, be disbarred from the practice of law. On September 3, 1997, we referred the petition to a Judicial Referee (Temple, J.) to conduct a hearing on the alleged violations. The referee found that the respondent violated New Hampshire Rules of Professional Conduct 3.4 and 8.4(a) and recommended a public reprimand.

The underlying litigation in this matter was the subject of our opinion in Bussiere v. Roberge, 142 N.H. 905 (1998). The relevant facts are as follows. In 1974, Emile Bussiere and several partners completed construction of a 76-unit apartment building in Manchester. In 1984, Bussiere sold the building to Stephen Bronstein, who financed the purchase with a bank loan secured by a mortgage. Under the terms of the purchase, Bussiere and an associate retained a “paid-up” leasehold in a two-story apartment in the building, in contemplation that the building would be converted into condominiums. A series of documents, including the bank’s recorded mortgage and several unrecorded letters, indicated that the bank’s mortgage was subject to the leases of Bussiere and his associate even in the event of a default on the mortgage. We eventually affirmed a ruling by the superior court that these documents gave Bussiere “the right to exclusive possession and control” of the apartment against all holders of the mortgage. Bussiere, 142 N.H. at 906.

In December of 1993, Bronstein defaulted on the bank’s loan. Some time afterwards, members of the Roberge family became interested in purchasing the mortgage. Carolyn Roberge (Ms. Roberge) retained the services of the respondent, Steven Feld, to complete title work and analyze the property interest held by Bussiere and his partner. On July 18, 1994, Ms. Roberge signed an option agreement with the bank to purchase the mortgage.

[21]*21Bussiere became aware of the Roberges’ interest in the property. On July 28, 1994, Bussiere faxed a letter (the July 28 letter) to Ms. Roberge describing his claim to the. property and enclosed the unrecorded documents relating to his lease. Ms. Roberge subsequently showed this letter to Feld. Bussiere never received a reply from either Ms. Roberge or Feld. Bussiere sent a second letter to the Roberges on September 1 in which he repeated his claims and alluded to the unrecorded documents, although he did not enclose them. Despite these letters, Ms. Roberge and her mother, by means of a newly-formed corporation (Fifty-Five Associates) of which they were the only directors, purchased the mortgage on September 7, 1994. Ms. Roberge’s father, Roland Roberge (Mr. Roberge), had no role in the corporation, but gave a “substantial” amount of money to his wife to be used for the purchase and assisted Ms. Roberge throughout the transaction.

In 1995, Feld commenced eviction proceedings against Bussiere. Bussiere responded with an equity action in superior court, naming Ms. Roberge and her father Roland Roberge, among others, as defendants. During the discovery process, Bussiere, under the authority of Superior Court Rule 35(a), directed a series of depositions, interrogatories and requests for admission to the Roberges. Bussiere’s inquiries concerned two major topics: (1) the financial involvement of each defendant, particularly Mr. Roberge, in the purchase of the real estate; and (2) the defendants’ knowledge of Bussiere’s claim prior to the purchase, particularly regarding their receipt of his July 28 letter with its attachments. Feld represented all of the defendants throughout the discovery phase, and drafted or reviewed all of their responses to interrogatories and requests for admission. The responses to these discovery requests later became the basis of the professional conduct complaint filed by Bussiere against Feld.

The committee investigated the allegations in the complaint, held an evidentiary hearing, and found that Feld “orchestrated, assisted, counseled and tolerated the formulation of inaccurate and incomplete sworn responses that he knew were inaccurate” in violation of New Hampshire Rules of Professional Conduct 3.4 and 8.4. We appointed a Judicial Referee (Temple, J.), who conducted a de novo evidentiary hearing and ruled that Feld’s conduct violated Rules 3.4 and 8.4. In Feld’s Case, 144 N.H. 131 (1999), we adopted the referee’s findings and recommended sanction.

After the publication of that decision, it was alleged that a former justice of this court who was recused from the case improperly offered his opinions regarding the sanction imposed. The respondent, citing these allegations, petitioned this court to vacate both the opinion of this court [22]*22and the referee’s report. On December 4, 2001, we issued an order that granted the respondent’s motion to vacate our opinion, denied his motion to vacate the referee’s report and requested that the parties submit new briefs for a new oral argument before a new panel of judges.

The respondent raises two issues before us. First, he argues that the allegations of judicial impropriety demand an outright dismissal of the complaint against him. Second, he argues that his. conduct during discovery did not constitute a violation of Rules 3.4 and 8.4. We address each issue in turn.

The respondent first argues that the allegations of judicial impropriety require dismissal of his case on due process grounds. He argues that “the case has been irreparably tainted” by allegations of impropriety and that a “public. perception of partiality permeates the proceeding.” This is essentially the same argument the respondent advanced in his motion to vacate our earlier decision. We have already considered this matter by means of our December 4,2001 order. Given that there is no allegation of judicial impropriety regarding the referee’s report, and that none of the Justices involved in the first decision are sitting on this case, we decline to reconsider our order.

We thus turn to the merits of this case. Rule 3.4 of the New Hampshire Rules of Professional Conduct states, in pertinent part:

Rule 34: Fairness to Opposing Party and Counsel
A lawyer shall not:
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

The judicial referee, citing three particular incidents during the discovery process, found that Feld’s actions violated Rules 3.4(b), 3.4(c) and 3.4(d). Our standard of review for the referee’s factual findings in a lawyer discipline case is whether “a reasonable person could have reached the same decision as the referee.” Cohen’s Case, 143 N.H. 169, 171 (1998) (quotation omitted). However, we review de novo to determine whether the referee committed errors of law. Cf. Lake Sunapee Protective Assoc. v. [23]*23N.H. Wetlands Bd., 133 N.H. 98, 106 (1990); 5 R. Wiebusch, New Hampshire Practice, Civil Practice and Procedure § 39.10, at 240 (2d ed. 1998).

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Bluebook (online)
815 A.2d 383, 149 N.H. 19, 2002 N.H. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felds-case-nh-2002.