Wood's Case

634 A.2d 1340, 137 N.H. 698, 1993 N.H. LEXIS 147
CourtSupreme Court of New Hampshire
DecidedNovember 23, 1993
DocketNo. LD-92-009
StatusPublished
Cited by14 cases

This text of 634 A.2d 1340 (Wood'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
Wood's Case, 634 A.2d 1340, 137 N.H. 698, 1993 N.H. LEXIS 147 (N.H. 1993).

Opinions

Thayer, J.

The Supreme Court Committee on Professional Conduct (committee) filed a petition seeking public censure, alleging that the respondent, Blair C. Wood, violated various Rules of Professional Conduct (Rules).

The committee’s petition was not referred to a judicial referee because the parties stipulated to the material facts and exhibits. Wood practices law in Hanover and has lived in Lebanon for approximately twenty years. In June 1990, he met with representatives of Heritage Companies (Heritage) to discuss the possibility of developing a mall near exit 15 of Interstate 89 in Enfield. Wood had previously dealt with the Enfield site and had obtained town approvals for its commercial development. Heritage retained Wood because of his knowledge of Enfield planning issues and of the composition of the Enfield zoning and planning boards. Wood knew that Heritage had previ[700]*700ously considered other sites but did not know that other sites were still under consideration.

In June and July 1990, Wood twice conferred with Heritage representatives by telephone and responded in writing to their request for a review of Enfield’s zoning ordinance. He informed Heritage that his partner, Jay P. Cooper, would be responsible for developing a strategy to gain approvals for a mall in Enfield. Through July and August, Heritage’s requests continued to focus on the Enfield property. Unknown to either Wood or Cooper, however, Heritage secured an option to purchase property in Lebanon. In early November, Heritage asked Cooper for advice on gaining approval of a mall on the McQuade site in Lebanon at exit 16 of Interstate 89. Cooper contacted the Lebanon city engineer and the planning board chairman regarding possible commercial' and rezoning of the McQuade property, and responded to Heritage’s request with a detailed memorandum on November 21, 1990.

At some point after November 21, Cooper discovered that the Mc-Quade site for the mall in Lebanon abutted Wood’s property. Cooper informed Wood that Heritage was exploring developing the mall on the McQuade property. Wood and his family opposed rezoning the McQuade property and building a mall there. Cooper notified Heritage of Wood’s conflict and of the firm’s decision to withdraw from further representation, and recommended replacement counsel.

Over the weekend of December 8-9,1990, Heritage commissioned a survey of selected residents asking how they would react to the development of a large regional mall near exit 16 of Interstate 89, and possible rezoning of property in that area. Neither Heritage nor the McQuade site were identified in the survey. On December 10, 1990, a petition signed by thirty-two Lebanon residents was filed with the Lebanon City Council seeking to rezone a portion of the McQuade property, tax lot 55, from a rural zone to a commercial zone. The signatures were obtained by Heritage’s new attorney.

Heritage’s plans for developing a mall on the McQuade property involved rezoning 122 acres of undeveloped land to allow for general commercial use. The mall was to be located on two lots: one in En-field, which Wood had explored, and the McQuade lot in Lebanon, which Cooper had explored. On December 11, 1990, Heritage’s new attorney gave an interview to the Valley News, a Lebanon newspaper, about the proposed mall. The reporter also contacted Wood, who made statements that were published in an article on the proposed mall on December 12, 1990.

The newspaper article identified Heritage as the developer and described the size of the project. It noted that because of the scope of [701]*701the proposed zoning change, “its fate is left to Lebanon voters, who will decide in a referendum in March.” The article included favorable descriptions of the project from various residents, and then referred to Wood as an opponent of the project, stating the reasons for his opposition. On December 17, 1990, Heritage’s attorney wrote to Wood indicating Heritage’s concerns about Wood taking a public position adverse to Heritage.

Wood and his family wrote letters to the Lebanon City Council and attended public meetings to express their opposition to rezoning the McQuade site to allow commercial development, including the proposed mall. On December 22, 1990, another article on the proposed mall was published in the Valley News. This article contained references to Wood’s letter to the city council and his arguments in opposition to the mall contained in the letter.

On January 3, 1991, the Lebanon Conservation Commission gave an advisory opinion to the city council and unanimously recommended rejecting the proposed zoning change. On January 7, 1991, the Lebanon Planning Board held a public meeting for the purpose of giving an advisory opinion to the city council. The board voted to recommend that the McQuade property not be rezoned. Wood attended these meetings and spoke in opposition at the January 7 meeting. On January 9, 1991, the Lebanon Zoning Map Change Committee determined that it did not have enough time to adequately evaluate the proposed zoning change. Without having filed an application for subdivision approval or site plan review, Heritage withdrew its plans to develop the McQuade site on January 23,1991.

The committee’s petition for public censure alleged that Wood violated Rules 1.9(a), 1.9(b), 1.16(b), 1.16(d), and 8.4(a). We will not address the committee’s allegations of further violations contained in its brief as the committee’s petition did not allege them, nor was the respondent put on notice that the stipulation of facts would serve as the basis to allege additional violations.

This court retains the ultimate authority to determine what sanctions, if any, to impose on members of the New Hampshire bar whose conduct does not comport with the professional standards outlined in the Rules. “The court may suspend, disbar or publicly censure [the] respondent-attorney upon such terms and conditions as the court deems necessary for the protection of the public and preservation of the integrity of the legal profession.” SUP. Ct. R. 37(13)(f). This petition presents issues that are before this court for the first time, implicating an attorney’s duty of loyalty to a client and an attorney’s ability to pursue and express his or her personal beliefs.

[702]*702Rule 1.9(a) provides:

“A lawyer who has formerly represented a person in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of both unless the former client consents after consultation and with knowledge of the consequences; . . . .”

Here, the formerly represented “person” is Heritage. Wood represented Heritage in the matter of locating a mall in Enfield; his partner represented Heritage in the matter of locating the same mall in Lebanon. These matters were substantially related. Under Rule 1.9(a), a lawyer who has represented a person in a matter shall not thereafter “represent another person” in a substantially related matter in which that client’s interests are materially adverse. The question which then arises is whether Wood’s pursuit of his personal interests constitutes representation of “another person.”

The committee suggests a broad interpretation of “another person” to include a lawyer’s representation of his or her own interests, i.e., a lawyer ácting pro se.

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Bluebook (online)
634 A.2d 1340, 137 N.H. 698, 1993 N.H. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woods-case-nh-1993.