In re Burling

651 A.2d 940, 139 N.H. 266, 1994 N.H. LEXIS 143
CourtSupreme Court of New Hampshire
DecidedDecember 29, 1994
DocketNo. SMC-94-014
StatusPublished
Cited by10 cases

This text of 651 A.2d 940 (In re Burling) 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
In re Burling, 651 A.2d 940, 139 N.H. 266, 1994 N.H. LEXIS 143 (N.H. 1994).

Opinion

BATCHELDER, J.

The petitioner, Peter Hoe Burling, is a member of the New Hampshire Bar and, at the time the petition was filed, was a member of the New Hampshire House of Representatives. He petitions this court to release for public inspection “any and all professional conduct files as may be in existence regarding the late John Fairbanks, whether held by the Court or by the Professional Conduct Committee.” [268]*268The petitioner argues that Supreme Court Rule 37(17), which provides that records and proceedings relating to allegations of attorney-misconduct are confidential, should be interpreted to permit release of files relating to complaints against Fairbanks. In addition, he contends that release of the files is required by three provisions of the New Hampshire Constitution: part I, article 8 (open government); part I, article 22 (free speech); and part I, article 37 (separation of powers). We deny the petition.

In his brief, in addition to arguments specifically addressed to proceedings involving Fairbanks, the petitioner argues generally that we should amend Rule 37(17) to provide that all records of and proceedings before the professional conduct committee (committee) be made public upon a finding of probable cause that attorney misconduct has occurred, or upon the dismissal of a complaint. We decline, for two reasons, to address the petitioner’s arguments regarding the general need to amend Rule 37(17). First, questions relating to the validity of Rule 37(17) were not included in the petition and the petitioner did not move for permission to add such questions. See Sup. Ct. R. 16(3)(b). Second, the concerns raised by the petitioner are appropriately considered under the established rule-making process provided by Supreme Court Rule 51. The Supreme Court Advisory Committee on Rules is currently reviewing Rule 37 and issues raised by its confidentiality provision. We focus, therefore, on the specific question whether the circumstances of this case warrant waiver of the provisions of Rule 37(17).

“[T]he task of supervising and disciplining attorneys within this State falls squarely upon the shoulders of this court.” Astles’ Case, 134 N.H. 602, 605, 594 A.2d 167, 170 (1991). We have always had the inherent power “to take reasonable and expeditious action in the suspension or removal of members of the bar for the protection of the community.” Barnard’s Case, 101 N.H. 33, 34, 131 A.2d 630, 630 (1957); see Delano’s Case, 58 N.H. 5, 5 (1876). Pursuant to part II, article 73-a of the State Constitution, RSA 490:4 (1983), and RSA chapter 311 (1984 & Supp. 1993), “this court . . . has established a professional conduct committee which has responsibility for regulating attorney conduct.” Rousseau v. Eshleman, 128 N.H. 564, 567, 519 A.2d 243, 245 (1986). The committee is authorized, pursuant to rules established by this court, to consider, investigate, and determine the propriety of attorney conduct. See Sup. Ct. R. 37(3)(c); In re Grievance Procedures, 115 N.H. 310, 312, 341 A.2d 272, 273 (1975). Attorney disciplinary proceedings are “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 [269]*269apply.” State v. Merski, 121 N.H. 901, 909, 437 A.2d 710, 714 (1981) (emphasis omitted), cert. denied, 455 U.S. 943 (1982).

Supreme Court Rule 37(17)(a) provides that “[a]ll records and proceedings involving allegations of misconduct by an attorney shall be confidential and shall not be disclosed . . . .” The rule establishes four exceptions to the confidentiality requirement: (1) “[w]hen the prosecution of formal charges is initiated [by the professional conduct committee] by the filing of a petition with the New Hampshire Supreme Court”; (2) “[w]hen an attorney seeks reinstatement”; (3) “[w]hen the attomey/respondent, prior to the filing of formal charges, requests that the matter be public”; and (4) “[i]f the investigation is predicated upon a conviction of the respondent for a crime or upon public discipline imposed upon the respondent in another jurisdiction . . . .” Thus, participants in committee investigations of a noncriminal nature, including attorneys, hold the expectation that unless one of the narrow exceptions delineated above applies, the proceedings will remain confidential.

Notwithstanding the provisions of Rule 37(17), this court possesses the inherent authority to compel the committee to disclose disciplinary records.

Courts have an inherent power to make and follow rules governing such matters or to formulate new rules as the case demands so long as no right of the member charged is invaded. But the rules thus established do not restrict the general power of the courts; the power which establishes such rules in the first instance also enables the courts to disregard such rules and adopt the methods most suitable to the occasion.

State v. Merski, 121 N.H. at 908, 437 A.2d at 714 (quotation and emphasis omitted). The party requesting relief, however, must first establish that a sufficient basis exists for overriding the implicit concerns of Rule 37(17). Cf. Petition of Keene Sentinel, 136 N.H. 121, 129-30, 612 A.2d 911, 916 (1992); State v. Gagne, 136 N.H. 101, 104-05, 612 A.2d 899, 901 (1992).

This court has recognized that Rule 37(17) serves several purposes.

The primary purpose underlying the imposition of confidentiality is to protect the reputation of an attorney. A second purpose is to protect the anonymity of complainants. A third purpose is to maintain the integrity of pending grievance committee investigations. It has been held that the privilege is not of the attorney alone but of the State bar. The attorney waives it when he places his reputation as an [270]*270attorney in issue. But his waiver does not affect the privilege of the State bar acting for itself and the public. There is an equally weighty state interest, namely, that of preventing public disclosure that would endanger the interests of those from whom . the State has. obtained information on a confidential basis.

State v. Merski, 121 N.H. at 910, 437 A.2d at 715 (citations, quotations, ellipses, and brackéts omitted).

Petitioner argues that in the particular circumstances of. this case “where the . attorney accused of misconduct had. been subject to criminal indictment, had fled the jurisdiction, had taken on a false identity, and, finally, had died under an assumed name in Las Vegás — there are no individual interests to protect, and absolutely nothing to be gained by perpetuating the secrecy of the process.” This argument, however, “seems to be grounded in the false premise that confidentiality is the defendant’s right alone.” Id. (quotatioh omitted).

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Bluebook (online)
651 A.2d 940, 139 N.H. 266, 1994 N.H. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-burling-nh-1994.