THE STATE OF NEW HAMPSHIRE SUPREME COURT

LD-2011-0010

IN THE MATTER OF K. William Clauson, Esquire

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BRIEF FOR THE NEW HAMPSHIRE SUPREME COURT PROFESSIONAL CONDUCT COMMITTEE

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New Hampshire Supreme Court Professional Conduct Committee By its counsel:

James L. Kruse, Esquire Assistant Disciplinary Counsel NH Bar ID No. 1400 4 Chenell Drive, Suite 102 Concord, New Hampshire 03301 (Oral Argument by James L. Kruse)

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TABLE OF CONTENTS

Page(s) Table of Authorities ......................................................................................... ii QUESTIONS PRESENTED ............................................................................... 1 STATEMENT OF THE CASE ......................................................................... 2-3 STATEMENT OF THE FACTS ..................................................................... 4-12 SUMMARY OF ARGUMENT ...................................................................... 13-14 ARGUMENT ............................................................................................. 15-35

I. MR. CLAUSON’S REPRESENTATION OF BOTH BRENDA AND

TODD IN THE CRIMINAL PROCEEDING INVOLVING DOMESTIC ASSAULT VIOLATED N.H. R. PROF. CONDUCT 1.7 AND 1.9 ........ 15-25

II. MR. CLAUSON REPRESENTED TODD IN A CRIMINAL PROCEEDING WITHOUT THE REQUISITE KNOWLEDGE AND SKILL, IN VIOLATION OF N.H. R. PROF. CONDUCT 1.1 ........ 25-28

III. MR. CLAUSON’S MISCONDUCT WARRANTS SUSPENSION .......... 28-35

CONCLUSION ............................................................................................... 35 APPENDIX ............................................................................................... 36-48 A. Text of Authorities...................................................................... 37-48

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TABLE OF AUTHORITIES CASES Page(s)

Bruzga’s Case, 162 N.H. 52 (2011) .....................................................31, 32, 34 Coffey’s Case, 152 N.H. 503 (2005) ................................................................ 28 Doss v. State, No. 11-0175, 2011 WL 6079247 (Iowa App.)

(Decided Dec. 7, 2011, final publication pending) ..........................18, 22, 24 Fiandaca v. Cunningham, 827 F. 2d. 825 (1st Cir. 1987)................................ 21 Shillen’s Case, 149 N.H. 132 (2003) ........................................................ 22, 29 State v. French, 146 N.H. 97 (2001) .............................................................. 23 State v. Kidder, 150 N.H. 600 (2004) ....................................................... 16, 26 State v. Ray, 325 S.W.3d 500 (Mo. App. E.D. 2010) ................ 17, 18, 22, 24, 31 Wolterbeek’s Case, 152 N.H. 710 (2005) ....................................................... 32 Wyatt’s Case, 159 N.H. 285 (2009) .......................................................... 29, 30 RULES OF PROFESSIONAL CONDUCT

Rule 1.1 ................................................................... 1, 2, 14, 25, 28, 30, 35, 37 Rule 1.6 ............................................................................................. 24, 37-38 Rule 1.7 ............................................1, 2, 13, 15, 17, 21, 22, 23, 28, 30, 35, 38 Rule 1.9 ...................................... 1, 2, 13, 15, 23, 24, 25, 28, 30, 33, 35, 38-39 Rule 8.4 ......................................................................................... 2, 33, 35, 39 NEW HAMPSHIRE STATUTES

R.S.A 597:2 ......................................................................... 8, 10, 16, 30, 40-43 R.S.A 597:7-a...................................................................... 8, 10, 16, 30, 43-44 NEW HAMPSHIRE DISTRICT COURT RULES

Rule 2.1 .................................................................................................. 23, 45 ABA STANDARDS

Section 3.0 ................................................................................... 28, 34, 35, 46 Section 4.3 ..............................................................................28, 31, 35, 46-47 Section 4.5. ........................................................................................24, 35, 47 Section 9.0 ..............................................................................28, 32, 35, 47-48

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QUESTIONS PRESENTED

I. Whether Mr. Clauson breached his duty of loyalty by contemporaneously

representing both the defendant (the husband) and the alleged victim

(the wife) in a criminal proceeding involving domestic assault, in violation

of N.H. R. Prof. Conduct 1.7.

II. Whether Mr. Clauson breached his duty of loyalty to his former client,

the alleged victim of domestic assault, by representing the defendant

charged with that assault, in violation of N.H. R. Prof. Conduct 1.9.

III. Whether Mr. Clauson breached his duty of competence under N.H. R.

Prof. Conduct 1.1 by representing the criminal defendant and the alleged

victim in a criminal proceeding without understanding the scope of his

responsibilities as counsel, and without the requisite skill and knowledge

required to handle material issues in a criminal proceeding or to evaluate

divergent interests of his clients.

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STATEMENT OF THE CASE

K. William Clauson represented Todd Gray and Brenda Gray in a

criminal case filed in Lebanon District Court (State vs. Todd Gray, Docket #

452-2009-CR-90). By letter dated August 11, 2009, Albert J. Cirone, Jr.,

Presiding Justice, made a referral under New Hampshire Supreme Court Rule

37A(II)(a)(2) to the Attorney Discipline Office (ADO) to examine whether Mr.

Clauson had breached his duty of competence and his duty of loyalty by

engaging in legal representation involving a conflict of interest. PCC 10, Ex. 1;

30, pp. 1-2.1

The Complaint Screening Committee referred the matter to Disciplinary

Counsel on December 4, 2009, and a Notice of Charges was issued on August

4, 2010. PCC 2. Charges set forth in the Notice of Charges were tried before a

Hearing Panel on November 12, 2010. PCC 21. Prior to trial, the Hearing

Panel declined to rule on Mr. Clauson’s Motion for Summary Judgment, finding

it beyond the authority of the Hearing Panel. PCC 9; 13; 16.

The Hearing Panel issued a Preliminary Report dated January 14, 2011,

in which it found clear and convincing evidence of violations of N.H. R. Prof.

Conduct 1.1, 1.7(a) and (b), 1.9(a), and 8.4(a). PCC 23 (pp. 13-17). Following a

sanction hearing convened on March 18, 2011, (PCC 27) the Hearing Panel

issued its Report of April 4, 2011, recommending that Mr. Clauson be

1 The entire PCC record consists of 36 tabbed entries in 2 Volumes. “PCC 10” would denote

Tab 10 in the PCC Record.

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suspended from the practice of law for a period of three months, stayed for two

years. PCC 28.

On May 17, 2011, the parties and counsel appeared for oral argument

before the Professional Conduct Committee (Committee). PCC 29. In its order

dated July 12, 2011, the Committee recommended that Mr. Clauson be

suspended from the practice of law for a period of six months. PCC 30 (pp. 27-

28). The Committee denied Mr. Clauson’s Request for Reconsideration. PCC

36.

Mr. Clauson appeals the Committee’s orders.

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STATEMENT OF THE FACTS

On June 20, 2009, Todd Gray was arrested by New Hampshire State

Police Trooper Nathan Hamilton on two criminal complaints, both for Class A

misdemeanor criminal assault in violation of RSA 631: 2-a. One complaint

alleged that Todd’s wife, Brenda Gray, was the victim. The other identified

Todd’s nineteen year old daughter, Amber Gray. The charges arose out of a

domestic dispute at the Grays’ residence in Orford, New Hampshire, in the

early morning hours of June 14, 2009. PCC 10 (Exs. 3, 4, 16); 30 (p. 6).

Todd was taken into custody on June 20, 2009, and brought before the

Bail Commissioner acting on behalf of the Lebanon District Court. A Criminal

Order of Protection Including Orders and Conditions was issued, providing that

“the defendant shall not have any contact with the victim[s], whether in person

or through third persons… unless specifically authorized by the court. The

defendant is prohibited from coming within 100 yards of the victim[s].” PCC 10

(Exs. 4, 17); 30 (p. 7).

In support of his application to the court for an arrest warrant, Trooper

Hamilton submitted an affidavit dated June 17, 2009, summarizing the

evidence obtained in his investigation of the incident. PCC 10 (Ex. 3); 30 (p. 7).

According to Trooper Hamilton, when he arrived at the scene shortly after the

incident, he found Brenda distraught and intoxicated. She reported that Todd

had “gone ballistic” and that she was concerned about the safety of her

children. PCC 10 (Exs. 3, 16). While Brenda had difficulty gathering her

thoughts, was unable or unwilling to provide details of what had happened,

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and was “fixating” on what people in town would say about this incident, she

told Trooper Hamilton that Todd had punched a mirror, thrown over some

furniture, and slapped her in the face. Brenda said she was afraid of Todd

being physically violent toward her and she did not want him in the house.

Brenda declined to provide Trooper Hamilton with a written statement or to

request an Emergency Domestic Violence Order. PCC 10 (Exs. 3, 5, 16); 21

(pp. 36-40); 30 (p. 7).

Trooper Hamilton also interviewed Todd at the scene. He knew Todd as

the former Chief of Police for the Town of Orford. PCC 21 (p. 35). Todd was

intoxicated. He claimed that Brenda was the aggressor, that she bickered with

him, grabbed and scratched him, and told him he could not stay upstairs in

their house. Todd had reached a “breaking point.” Todd signed a statement

admitting that he pushed Brenda twice to keep her away from him. PCC 10

(Exs. 3, 16); 21 (pp. 42-44); 30 (p. 7).

At approximately 3:00 am, Trooper Hamilton interviewed Amber at her

residence in Vermont. He found her cooperative, articulate, and sober. PCC

21 (pp. 45, 46); 10 (Exs. 3, 16). Amber reported finding Todd passed out in her

sister’s car and brought him home. Following a verbal exchange at the house,

Todd turned to Amber with a “psycho look in his eyes” that scared her. He

slapped Amber on the face and she hit him back. Amber saw Brenda slap

Todd, following which he grabbed Brenda and slapped her. Todd then threw

Brenda into the refrigerator, picked her up, and threw her into the table and a

chair. PCC 10 (Exs. 3, 16); 21 (45-49).

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Later in the day on June 14, 2009, Trooper Hamilton returned to the

Gray residence to obtain a written statement from Brenda. Todd had been

asked to spend the rest of the night elsewhere, but he greeted Trooper

Hamilton at the door and advised that he and Brenda had “talked it out.” PCC

21 (pp. 44-45, 49-50). Brenda declined to provide a written statement and

indicated she did not want the investigation to go any further. PCC 10 (Exs. 3,

16, 17); 23 (p. 11, Req. 11); 30 (p. 7); 21 (pp. 62-63).

Two days after the arrest, Todd called Trooper Hamilton and said that he

thought the case was brought as a vendetta and was worthless. PCC 21 (p.

56). Todd and/or Brenda also asked Trooper Hamilton about changing the no-

contact bail order. Trooper Hamilton advised that a court order was required.

PCC 30 (p. 7); 21 (pp. 56-57).

On June 22, 2009, Brenda met with Mr. Clauson. She told Mr. Clauson

about the June 14 incident and the circumstances of Todd’s arrest, and asked

Mr. Clauson for his advice and assistance in having the no-contact bail

condition removed as to Todd and Brenda. She also told Mr. Clauson that

Trooper Hamilton did not object to such a change. PCC 30 (pp. 7-8).

At their meeting of June 22, 2009, Mr. Clauson knew that Brenda was

the alleged victim in the referenced criminal proceeding and that Todd was the

alleged assailant. He agreed to represent Brenda, prepare a motion, and

accompany her to Lebanon District Court to seek an immediate hearing on the

bail condition issue. PCC 30 (p. 8). Following a telephone conference with

Todd, Mr. Clauson also agreed to represent Todd in connection with the bail

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condition issue. PCC 23 (p. 6); 30 (p. 8). Mr. Clauson advised Todd that he

need not attend the court hearing on the bail issue because Brenda was the

alleged victim for whom the protective order was issued. PCC 30 (p. 8).

On June 22, 2009, Mr. Clauson accompanied Brenda to the Lebanon

District Court and filed a general appearance as “Counsel for Defendant: Todd

Gray.” He also filed “Brenda Gray and Todd Gray’s Emergency Motion for

Immediate Hearing on Bail Conditions” (First Emergency Motion), to which

Brenda assented. The motion identified Mr. Clauson’s firm as counsel for

Todd. PCC 10 (Exs. 9, 10); 30 (p. 8). The court accepted the filings but

instructed Mr. Clauson to return on the following day for a hearing.

On June 23, 2009, Mr. Clauson and Brenda returned to the court for the

first of two hearings on the bail issue. Mr. Clauson filed a second pleading,

entitled, “Todd Gray’s Emergency Motion for Immediate Hearing on Bail

Conditions” (Second Emergency Motion). The pleading similarly identified Mr.

Clauson’s firm as Todd’s counsel. PCC 10 (Ex. 11); 30 (p. 8). Prior to the

hearing on the Second Emergency Motion, Trooper Hamilton indicated he

would not object to the requested change in the no-contact order, but he

cautioned Mr. Clauson that Todd would have to appear before the court. PCC

30 (pp. 8-9); 21 (pp. 57-60). Trooper Hamilton had decided not to object to the

motion because he perceived that “things had cooled off” and that the court

was likely to accommodate Brenda’s request for access to Todd. PCC 30 (pp. 8-

9); 21 (pp. 58, 64-65).

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Mr. Clauson did not at any time prior to the June 23, 2009, hearing or

the one that followed on June 30, 2009, confer with Trooper Hamilton about

the evidence obtained in the underlying investigation, including information

supplied to the police by Todd, Brenda, and Amber. He did not ask Trooper

Hamilton for a copy of his affidavit filed with the warrant application or review

the court files for such information. Nor did Mr. Clauson talk to Amber about

what she saw on June 14. PCC 30 (p. 8); 23 (p. 6); 21 (pp. 59-61, 162-165,

171). Mr. Clauson did not request police investigative information until July 7,

2009, and he never interviewed Amber. PCC 21 (pp. 61, 162-165); 10 (Ex. 15);

30 (pp. 8-11); 3 (p. 2).

Prior to the hearings, Mr. Clauson discussed with both Brenda and Todd

the underlying incident and the bail condition issue. PCC 30 (p. 9). However,

Mr. Clauson did not discuss with either one the issue whether their

communications through Mr. Clauson might violate the no-contact order. PCC

30 (pp. 9, 13, 15); 21 (pp.157-162). Mr. Clauson had not done much criminal

work and did not recall ever handling a bail condition issue in the past. He

believed in error that the no-contact bail condition applied only to “direct”

contact with Brenda and that it did not apply to “indirect” or “third party”

contact. Mr. Clauson did not review the applicable criminal bail statute at RSA

597. PCC 30 (pp. 8-9); 21 (pp. 146-149, 157-162).

Mr. Clauson did not discuss with Todd or Brenda the advantages,

disadvantages or risks associated with a change in the no-contact order; nor

did he discuss with either one the issue whether his involvement in pursuing a

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change in the no-contact order on behalf of both might give rise to a conflict of

interest. Mr. Clauson did not seek or obtain the written, informed consent of

Todd or Brenda to proceed with dual representation regarding the bail issue.

PCC 30 (p. 9); 21 (pp. 157-167).

When the Lebanon District Court (Cirone, J., presiding) convened the

June 23, 2009, hearing, Mr. Clauson and Brenda appeared without Todd. Mr.

Clauson advised the court that he represented Brenda, that she did not regard

herself as a victim in the underlying incident, and that she wanted the no-

contact bail condition dropped. The court noted that Brenda was not a party to

the proceeding and declined to proceed in the absence of Todd. PCC 10 (Ex.

12, pp. 94-97). Mr. Clauson viewed the judge’s ruling as “absurd.” PCC 30 (p.

9).

After the June 23, 2009, hearing, Todd and Brenda asked Mr. Clauson to

represent Todd in defending the underlying criminal complaints. Mr. Clauson

agreed. PCC 30 (pp. 9-10); 21 (p. 201); 3 (pp. 4-5); 10 (Ex. 2A, p. 4). Mr.

Clauson perceived that Todd and Brenda were on the “same wave length”

because they agreed that the assault charge was mistaken. He believed that

Todd was innocent. Brenda and Todd viewed Mr. Clauson as a “better, cheaper

alternative” to retaining additional counsel. PCC 30 (pp. 9-10); 21 (pp. 167,

170-174, 181); 3 (p. 5); 10 (Ex. 2A, p. 43).

Mr. Clauson knew at the time of his agreement to represent Todd in

defense of the criminal complaints that Brenda was a material witness to the

assault against her, but he had not yet obtained any information from the

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police regarding its investigation. PCC 30 (pp. 9-10); 21 (pp. 162-165); 3 (pp.

2-4). Mr. Clauson did not discuss with the Grays the issue whether his

representation of Todd in defense of the two criminal complaints, while still

representing Brenda, could give rise to a conflict of interest. Mr. Clauson did

not seek or obtain knowing, written consents from Todd and Brenda to

undertake such representation. PCC 30 (p. 10); 21 (pp. 18, 172-174).

The Lebanon District Court (Cirone, J., presiding) convened a second

hearing on June 30, 2009, to address the bail issue. Mr. Clauson represented

at the outset that “my client pleads not guilty to the two counts.” PCC 10 (Ex.

13, p. 101); 30 (p. 10).

The court expressed a number of concerns before addressing the no-

contact bail order issue: a) Mr. Clauson had not seen Trooper Hamilton’s

affidavit; b) in view of provisions in the bail statute (RSA 597) regarding no-

contact orders, Mr. Clauson appeared to be in a “dangerous place” while

representing both Brenda and Todd; c) Brenda could be an “enabling” victim, of

the sort frequently encountered by the court, inclined to minimize the

underlying domestic violence; and d) there is a “potential conflict between

counsel for the defendant and counsel for the victim being the same person.”

PCC 10 (Ex. 13, pp. 105-106, 109-111).

Brenda testified at the June 30, 2009, hearing in support of a change in

the no-contact bail condition. She claimed that she instigated the altercation

with her husband, she was not afraid of him, and needed him at home.

Brenda also testified that she had had too much to drink and her memory of

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the events was “clouded a lot,” but she did not dispute the accuracy of Trooper

Hamilton’s affidavit summarizing the evidence of Todd’s violent behavior. (PCC

30 (p. 10); 10 (Ex. 13, pp. 112-116).

On July 1, 2009, the court issued an order modifying the bail conditions

which allowed Brenda and Todd to resume contact and cohabitation. PCC 10

(Ex. 14).

Mr. Clauson proceeded with his representation of Todd in defense of the

two criminal complaints. PCC 30 (p. 10). By letter to the State dated July 7,

2009, Mr. Clauson requested access to the investigative file. PCC 30 (p. 10); 10

(Ex. 15). Later in the month, the State provided Mr. Clauson with statements

and information obtained by the police from Todd, Brenda, and Amber, and

identified Brenda and Amber as witnesses for the prosecution. PCC 10 (Exs.

16 and 17).

After reviewing the State’s file, Mr. Clauson wrote to Todd on July 27,

2009. He offered an assessment of the evidence, concluding that “Brenda’s

charges are mistaken.” PCC 10 (Ex. 20); 30 (p. 11).

On July 28, 2009, Mr. Clauson filed Defendant’s Motion to Recuse Judge

Cirone on grounds of bias, citing Judge Cirone’s past dealings with Mr.

Clauson and with Todd. PCC 10 (Ex. 23). By order dated August 12, 2009,

Judge Cirone recused himself, citing Mr. Clauson’s conflict of interest and

possible violation of the no-contact bail order. PCC 10 (Ex. 24).

The court scheduled trial of the criminal complaints for November 17,

2009. PCC 10 (Ex. 25). In advance of trial, Mr. Clauson agreed to allow the

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prosecutor to meet privately with Brenda. PCC 30 (p. 11). In anticipation of

that meeting, Mr. Clauson wrote a letter on October 8, 2009, addressed to both

Todd and Brenda. Mr. Clauson advised that “the State still has time to change

or amend its complaint against Todd,” and warned Brenda that “[a]nything you

say to [the prosecutor] can be used against Todd at trial.” PCC 30 (p. 11); 10

(Ex. 27).

On November 17, 2009, the court approved an agreement between the

parties to place both criminal matters on file without a finding for one year,

conditioned upon Todd’s good behavior and successful participation in an

anger management program, following which the cases could be dismissed.

PCC 10 (Exs. 28, 29); 30 (pp. 11-12).

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SUMMARY OF ARGUMENT

The Professional Conduct Committee reasonably determined based on

the record in this case that Mr. Clauson represented both the defendant and

the alleged victim in a criminal proceeding involving domestic assault, in

violation of N.H. R. Prof. Conduct 1.7 and 1.9.

Mr. Clauson failed to evaluate or discuss with his clients whether there

was an actual or potential conflict of interest associated with his

representation. The conflict associated with a) protecting the defendant’s

liberty interests pending trial and his right to a defense to the criminal charges,

while, at the same time, b) protecting the victim from further violence, from

being discredited and charged with providing the police with false information,

and from disclosure of privileged information, was obvious and non-waivable.

Mr. Clauson’s belief that he could competently and diligently represent both

clients, while honoring his duty of loyalty to each, was patently unreasonable.

Mr. Clauson ignored the court’s early warning of a conflict associated

with his dual representation and, to this day, persists in his refusal to

acknowledge the conflict.

Mr. Clauson lacked the requisite knowledge and skill to represent his

clients in the underlying criminal matter. His disinclination to acknowledge

such limitations contributed to Mr. Clauson’s failure to understand how to

proceed in pursuit of a change in the no-contact bail order and to appreciate

risks associated with such effort, as well as his failure to conduct an initial

investigation required to assess the divergent interests of his clients. Mr.

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Clauson breached his duty of competence, in violation of N.H. R. Prof. Conduct

1.1.

Mr. Clauson’s misconduct deprived his clients of the competent, loyal

and wholly independent representation to which they were each entitled and

undermined the integrity of, and public confidence in, the judicial system.

In view of Mr. Clauson’s prior disciplinary record, his knowing pursuit of

dual representation under a non-waivable conflict of interest warrants a

suspension from the practice of law.

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ARGUMENT

I. MR. CLAUSON’S REPRESENTATION OF BOTH BRENDA AND TODD IN THE CRIMINAL PROCEEDING INVOLVING DOMESTIC ASSAULT VIOLATED N.H. R. PROF. CONDUCT 1.7 AND 1.9.

A. Rule 1.7.

The Committee correctly found that Mr. Clauson breached his duty of

loyalty by representing both Todd and Brenda in a criminal proceeding in

which Todd was charged with assaulting Brenda. PCC 30 (p. 13). During the

course of his early representation of Brenda and Todd regarding the bail issue,

and when Mr. Clauson undertook shortly thereafter to represent Todd in

defense of the criminal complaints, there was a substantial risk that the

interests of either client would be directly adverse to the other and that the

representation of one client would be materially limited by Mr. Clauson’s

representation of the other. PCC 23 (p. 16); 30 (p.13). The Committee found

clear and convincing evidence that Mr. Clauson’s conduct in this regard

violated N.H. R. Prof. Conduct 1.7(a) and (b). PCC 30 (p. 13).

Mr. Clauson Represented Brenda and Todd regarding the no-contact bail condition

Mr. Clauson undertook initially to represent Brenda and Todd because

they both told him they wanted the no-contact order vacated. Brenda

complained that she had not asked for the no-contact order in the first place

and said she needed Todd at home. PCC 21 (pp. 166-167). However, Mr.

Clauson did not afford either client the benefit of his loyal and independent

judgment. Mr. Clauson did not engage either client in a discussion of the

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advantages, disadvantages, or risks associated with a change in the no-contact

order (PCC 21 (pp. 165-167); 23 (p. 7); 30 (p. 9)) or the possibility that Todd

might be found in violation of the no-contact bail order as a result of Mr.

Clauson’s involvement in facilitating communications between Todd and

Brenda. PCC 30 (p. 9). Nor did Mr. Clauson discuss whether his involvement

as counsel might give rise to a conflict of interest. Id.

Mr. Clauson takes the position that there was no need to address the

issue of conflict because he was “never put on notice that Todd and Brenda’s

interests were not aligned (sic).” Appellant’s Brief, pp. 14-15.

If, indeed, Mr. Clauson did not perceive the conflict issue, it was due, at

least in part, to his failure to read the criminal bail statute and to pay attention

to the express terms of the no-contact order prohibiting Todd from engaging in

indirect (“through third persons”), as well as direct, contact with Brenda. PCC

10 (Ex. 4). While the bail statute would accommodate communications

between counsel for the victim and counsel for the defendant (RSA 597: 2, III-b

(a)), Mr. Clauson’s role as counsel for both Brenda and Todd raised an obvious

question whether the statutory accommodation applied. See State v. Kidder,

150 N.H. 600, 601-603 (2004). Todd faced possible revocation of his release

and detention if he was found to have violated the no-contact order. RSA 597:

7-a, II, III.

Mr. Clauson also failed to consider the facts found by the police in their

investigation of the June 14, 2009, incident. Trooper Hamilton’s affidavit, filed

with the arrest warrant application, was readily available to Mr. Clauson. Had

17

he consulted the affidavit, Mr. Clauson would have learned that the violent acts

reported by Brenda, Todd, and Amber at the scene, as well as the level of

Brenda’s fear for her own and her children’s safety due to Todd’s conduct,

differed from what his clients were telling him. PCC 30 (pp. 10, 26). This

insight, along with some recognition of the risk that victims of domestic

violence will dilute or retreat from their account of the trauma they suffer at

the hand of their spouse, should have put Mr. Clauson on notice of the conflict

issue. PCC 21 (pp. 32-33, 87-88); 10 (Ex. 13, p. 110); 23 (pp. 14-15). See

State v. Ray, 325 S.W.3d 500, 508 (Mo. App. E.D. 2010).2

Under these circumstances, the Committee correctly found by clear and

convincing evidence that Mr. Clauson did not evaluate the likelihood that a

conflict would emerge or discuss with either client whether his involvement in

pursuing a change in the bail order would give rise to a conflict of interest. Mr.

Clauson failed to seek or obtain the written, informed consent of either client to

engage in dual representation on the bail issue, and he proceeded with such

representation in violation of N.H. R. Prof. Conduct 1.7(a) and (b). PCC 30 (pp.

9-10, 12-13).

Mr. Clauson represented Todd in defense of the criminal complaints while still representing Brenda Mr. Clauson’s agreement on June 23, 2009, to represent Todd in defense

of the criminal complaints, while continuing to represent Brenda, also ran

afoul of N.H. R. Prof. Conduct 1.7. Mr. Clauson made the commitment to

2 In the course of this disciplinary proceeding, Brenda has even disputed Todd’s written admission to

Trooper Hamilton that he pushed her. PCC 22 (p. 24).

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defend Todd without discussing with either client how their respective interests

might be adverse or the substantial risk that representation of one might

materially limit Mr. Clauson’s representation of the other. PCC 23 (p. 16); 30

(pp. 9-10, 12-13). Mr. Clauson could not reasonably have believed that he

could represent both clients without breaching his duties of loyalty,

competence, and diligence. The conflict was obvious and non-waivable. State

v. Ray, 325 S.W.3d. at 503, 506-508 [representation of the defendant charged

with domestic violence would be “inescapably adverse” to the victim, whom

counsel also represented, despite clients’ consent and victim’s reluctance to

testify.] Doss v. State, No. 11-0175, 2011 WL 6079247 (Iowa App.) (Decided

Dec. 7, 2011, final publication pending) [public defender’s office could not

represent both the criminal defendant and the police informant, despite

defendant’s waiver].

Mr. Clauson claims that there was no conflict associated with his

concurrent representation of Brenda and Todd because he did not agree to

represent Todd in defense of the criminal complaints until after he reviewed the

State’s file in July 2009. Appellant’s Brief, pp. 15-17. However, Mr. Clauson

confirmed in his response to the ADO’s inquiry that, after the June 23, 2009,

hearing, “Todd and Brenda separately asked me to represent Todd in the

criminal case. From my conversations with them both, I believed Todd to be

innocent of the charges, and I agreed.” PCC 10 (Ex. 2A, p. 43); 3 (pp. 4-5).

Consistent with his general appearance and pleadings filed in Lebanon District

Court on behalf of Todd, Mr. Clauson then described his appearance at

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“defense table with Todd” at the bail hearing on June 30, 2009, where he

entered Todd’s formal plea to both of the criminal complaints. PCC 10 (Ex. 2A,

p. 43); 10 (Ex. 13, p. 101); 3 (pp. 4-5).

Having clearly undertaken to represent Todd in defense of the criminal

complaints as of June 23, 2009, Mr. Clauson placed both clients at risk at the

June 30, 2009, hearing and thereafter.

At the June 30, 2009, hearing, the Court was likely to inquire as to facts

relating to the underlying incident as well as current conditions bearing on

whether Todd should be able to resume contact with Brenda. Mr. Clauson had

not seen or requested Trooper Hamilton’s affidavit prior to the hearing. Mr.

Clauson had not alerted either Brenda or Todd to the possibility that Brenda

could be called upon to testify, and he had not discussed with his clients how

their respective interests might be adverse or prejudiced during the course of

the hearing. If Brenda’s account of the June 14 altercation differed from what

she told the police at the scene, she could be charged with providing the police

with false information. By the same token, Brenda’s testimony at the hearing

could jeopardize Todd’s defense. PCC 30 (p. 10); 21 (pp. 164-165); 10 (Ex. 13,

p. 111); 22 (p. 26).

If not obvious to Mr. Clauson before the hearing, Judge Cirone made

clear his observation: “Well, does anybody else here besides me see a potential

conflict between counsel for the defendant and counsel for the victim being the

same person?” PCC 10 (Ex. 13, p. 109).

20

The Committee correctly found that Mr. Clauson “turned a deaf ear to

the Court’s concerns.” PCC 30 (p. 4). Mr. Clauson argued, instead, that he

had met separately with Todd and Brenda and they both wanted the no-contact

provision changed; there was considerable confusion on June 14 regarding

information supplied to the police by Brenda and Amber; Amber was a hostile

witness; and Brenda assured Mr. Clauson there had been “no assault.” PCC

10 (Ex. 13, pp. 106-108). Mr. Clauson proceeded to put Brenda on the stand,

in spite of the conflict and the risk to both Brenda and Todd.

Mr. Clauson continued to defend Todd after the court warned of a conflict The State’s disclosures in July 2009 confirmed that Brenda was a key

prosecution witness and that there was more to the State’s complaints against

Todd than his clients had revealed. Nevertheless, Mr. Clauson continued to

represent Todd in defense of the criminal complaints without undertaking any

reasonable evaluation of the conflict issue.

Mr. Clauson still insists there was no conflict associated with his defense

of Todd because both Todd and Brenda asked him to represent Todd (with

Clauson to serve as the “better, cheaper alternative to other counsel”), both told

him the assault against Brenda did not occur (at least in the form of a push

into a table), Amber’s testimony about the incident was “doubtful,” and Mr.

Clauson was convinced of Todd’s innocence. PCC 30 (pp. 9-10); 3 (pp. 4-5).

According to Mr. Clauson, the Grays had a “possible initial conflict, but upon

careful review, they had no actual conflict.” Appellant’s Brief, pp. 9, 15-17, 21-

22.

21

Mr. Clauson’s desire to accommodate his clients’ request and save them

money may have been sincere and Brenda and Todd undoubtedly appreciated

it. However, even if Mr. Clauson thought there was no direct adverseness

between Brenda and Todd, “a conflict of interests exists if there is a significant

risk that a lawyer’s ability to consider, recommend or carry out an appropriate

course of action for the client will be materially limited as a result of the

lawyer’s other responsibilities or interests.” N.H. R. Prof. Conduct 1.7(a), 2004

ABA Model Code Comment [8].

Mr. Clauson’s belief that he could win the case based on a selected

reading of the evidence apparently led to his determination to disregard the

substantial risk that the interests of one or both of his clients would be

compromised by his dual representation in the criminal proceeding. Even if

the Committee found under the circumstances that the presence of separate

counsel for Brenda and Todd might not have brought about a change in the

outcome of the case, the combination of clients and circumstances placed Mr.

Clauson in the “untenable position” of being simultaneously obligated to

represent vigorously two clients with divergent interests. Fiandaca v.

Cunningham, 827 F.2d 825, 829-830 (1st Cir. 1987).

Mr. Clauson could not have cured his ethical dilemma under N.H. R.

Prof. Conduct 1.7 by obtaining written consents from Brenda and Todd. Mr.

Clauson owed both of his clients a duty of undivided loyalty, zealous advocacy,

and independent judgment which was impossible to honor.

Pursuant to the “harsh reality test,” a disinterested lawyer looking back

22

at the circumstances under which Mr. Clauson undertook to represent Todd in

defense of the criminal complaints, while still representing Brenda, would

seriously question the wisdom of seeking client consents. N.H. R. Prof.

Conduct 1.7, Ethics Committee Comment; N.H. Ethics Opinion, 1988-89/24

(August 10, 1989); Shillen’s Case, 149 N.H. 132, 137-138 (2003). Under this

objective test, the Committee reasonably concluded that no such consents

should have been signed because the conflict was non-waivable. PCC 30 (pp.

4, 13, 29); N.H. R. Prof. Conduct 1.7(b).

Mr. Clauson admits that he believed he “owed a primary loyalty to [his]

original client, Mrs. Gray” (PCC 3 (p. 5)), and that he continued to represent

her “throughout” the district court proceeding. PCC 3 (p. 6); 30 (p. 12). Yet,

Mr. Clauson anticipated having to cross examine Brenda at the criminal trial, if

necessary on behalf of Todd, to elicit what she had told Mr. Clauson about the

assault. PCC 30 (p. 12). If, as Mr. Clauson pledged, he “was not going to do

anything contrary to her interests,” (PCC 21 (p. 203); 3 (pp. 5-6); 30 (p. 12)), he

could not possibly undertake an effective cross examination without placing

Brenda in jeopardy for providing the police with false information (or lying to

the court). In order to protect Brenda, Mr. Clauson would have had to

compromise his efforts on behalf of Todd. PCC 30 (p. 12). Under these

circumstances, Mr. Clauson’s apparent belief that he could represent both

clients without compromising the interests of either was “patently

unreasonable.” State v. Ray, 325 S.W.3d at 507-508; Doss v. State, 2011 WL

6079247, at 3.

23

At no time was the conflict more starkly apparent than in October 2009

when Mr. Clauson agreed to have Brenda meet privately with the prosecutor

and then issued instructions as to how she should conduct herself at that

meeting. In his letter of October 8, 2009, Mr. Clauson cautioned Todd and

Brenda that the State could still change or amend its complaint against Todd,

and then warned Brenda that “[a]nything you say to her can be used against

Todd at trial.” PCC 10 (Ex. 27). A reasonable inference drawn from Mr.

Clauson’s admonition is that Brenda should change her story from what she

reported to Trooper Hamilton at the scene (at Brenda’s peril), lest Todd be

subject to amended or additional charges. PCC 30 (p. 14).3

The Committee correctly found clear and convincing evidence that Mr.

Clauson did not evaluate the conflict issue or discuss it with his clients at any

time during the course of his representation of Todd in defense of the criminal

complaints. Mr. Clauson could not reasonably have obtained knowing

consents to the non-waivable conflict, and his conduct violated N.H. R. Prof.

Conduct 1.7(a) and (b). PCC 30 (pp. 10, 13).

B. Rule 1.9

To the extent Brenda is viewed as a former client when Mr. Clauson

3 Mr. Clauson may or may not have known that, under District Court Rule 2.1, the State could amend the criminal complaint in a timely fashion to define more accurately the methods employed by Todd in his assault. PCC 30 (p. 16). This, of course, would dispose of Mr. Clauson’s defense strategy and his argument that, because Brenda and Todd told Mr. Clauson that Todd did not push her “into a table,” as alleged in the criminal complaint, there was no assault or conflict of interest. Appellant’s Brief, pp. 8, 16-17. The material element of the pending charge against Todd, about which Mr. Clauson apparently lost sight, was that he “knowingly caused unprivileged physical contact to Brenda Gray.” PCC 10 (Ex. 3); 30 (pp. 4-5). All relevant evidence of Todd’s assault of Brenda at the time in question was the subject of the criminal proceeding in which Mr. Clauson undertook to represent both the victim and the assailant. PCC 30 (p. 14); See State v. French, 146 N.H. 97, 100-102 (2001).

24

undertook to investigate and prepare Todd’s defense, the Committee correctly

found that Mr. Clauson’s conduct also violated N.H. R. Prof. Conduct 1.9(a).

PCC 30 (pp. 13-14).

In the course of representing Brenda on the bail issue, Mr. Clauson

obtained significant confidential information from Brenda that was protected

by N.H. R. Prof. Conduct 1.6. PCC 30 (p. 14); 10 (Ex. 30). Mr. Clauson’s

subsequent representation of Todd in defense of the criminal complaints

involved representation in the same matter in which Brenda’s and Todd’s

interests were materially adverse, as described above. In the event Mr.

Clauson needed to cross examine Brenda in zealous pursuit of Todd’s defense,

privileged information previously obtained from Brenda would likely be used

and disclosed. PCC 30 (pp. 13-14). See Doss v. State, 2011 WL 6079247, at 3;

State v. Ray, 325 S.W.3d at 510.

Even after the case was resolved, there remained a substantial risk that

a similar conflict would emerge if the State later charged Todd with failing to

comply with conditions of dismissal. PCC 23 (p. 17); 30 (p. 14). When asked at

trial whom he would represent in the event of such a charge, Mr. Clauson said,

“I don’t know that I would have represented anybody.” PCC 21 (p. 188).

However, Mr. Clauson left open the possibility of his further involvement in the

event of more domestic violence or other alleged violation. PCC 21 (pp. 188-

189).

The Committee correctly found by clear and convincing evidence that Mr.

Clauson did not evaluate the likelihood that, having formerly represented

25

Brenda, a conflict of interest would emerge in connection with his

representation of Todd in defense of the criminal complaints, in violation of

N.H. R. Prof. Conduct Rule 1.9(a). He did not discuss the issue with either

Brenda or Todd, and he did not seek or obtain a written, knowing consent from

Brenda authorizing his representation of Todd and his use and disclosure of

privileged information in Todd’s defense. PCC 30 (pp. 13-14).

II. MR. CLAUSON REPRESENTED TODD IN A CRIMINAL PROCEEDING WITHOUT THE REQUISITE KNOWLEDGE AND SKILL, IN VIOLATION OF N.H. R. PROF. CONDUCT 1.1.

The Committee correctly found that Mr. Clauson violated his duty to

provide competent representation to Todd in Lebanon District Court by

proceeding without the requisite knowledge and expertise in criminal practice

and without associating with another attorney with the skill and knowledge

required to assure competent representation. PCC 30 (p. 15).

Mr. Clauson lacked competence to handle the no-contact bail issue

Mr. Clauson was ill-prepared to represent Brenda and Todd in pursuit of

a change in the no-contact bail order. Mr. Clauson did not practice much

criminal law and had no recollection of ever handling a bail hearing prior to

this matter. PCC 30 (pp. 9, 15); 21 (p. 148). Mr. Clauson did not understand

that the no-contact bail provision was part of a court “order.” PCC 10 (Ex. 2A,

p. 47). He did not understand the terms of the no-contact order, the

significance of the bail statute in assessing Todd’s position and risks, or the

need to have Todd present at a hearing at which Todd’s liberty interests were at

stake. PCC 30 (p. 15).

26

Mr. Clauson apparently failed to understand the difference between a

civil domestic violence restraining order and a criminal order of protection as a

condition of bail. PCC 30 (p. 17). Mr. Clauson has argued, for example, that

“Brenda did not press charges against Todd” and Brenda “did not request

protective assistance.” Appellant’s Brief, pp. 2-3. Further evidence of his

confusion appears on the record of the June 23, 2009, hearing. When the

court asked where Todd was, Mr. Clauson replied, “I don’t know. I represent

Mrs. Gray.” PCC 10 (Ex. 12, p. 94).

As Judge Cirone properly ruled, Brenda was not a party to the criminal

proceeding and did not have standing to independently request a change in

Todd’s bail conditions. PCC 10 (Ex. 12, pp. 94-97); See State v. Kidder, 150

N.H. at 605.

While Mr. Clauson may not have appreciated the precise nature of the

proceeding, he chose to ignore Trooper Hamilton’s advice to make sure Todd

was present. Mr. Clauson’s subsequent assessment that Judge Cirone’s

refusal to proceed in Todd’s absence was “absurd,” along with his suggestion

that Judge Cirone’s rulings were tainted by personal bias and his dislike for

Mr. Clauson and Todd (PCC 10 (Ex. 2A); 3 (p. 5); 30 (p. 24)), reflect Mr.

Clauson’s reluctance to acknowledge the limitations to his knowledge and skill

in criminal practice.

Mr. Clauson did not investigate the facts

Mr. Clauson failed to obtain police investigative information in a timely

fashion. He also declined to talk to Amber who, presumably, would have

27

confirmed what she told the police about the June 14 incident: Todd struck

Brenda in the face, threw her into the refrigerator, and picked her up and

threw her into a table and chair. PCC 10 (Exs. 3, 16). Mr. Clauson needed this

information, along with statements attributed to Brenda and Todd at the scene,

in order to understand the respective interests of Brenda and Todd and to

evaluate the possible conflicts of interest associated with his representation.

PCC 30 (pp. 15, 26).

Mr. Clauson excuses his failure in this regard on grounds that because

Trooper Hamilton had no objection to removing the no-contact bail provision,

the court revised the bail order after the June 30, 2009, hearing, and the

prosecutor ultimately agreed to place the matter on file with conditions, the

interests of Brenda and Todd must have been “aligned.” Appellant’s Brief, p.

12.

Mr. Clauson misses the point. A determination by the police and court

that conditions had cooled off between Todd and Brenda and that, pending trial

on the criminal complaints, Brenda was no longer in danger of further assault

by Todd, did not excuse Mr. Clauson from his duty to exercise the care

required of a competent attorney to protect the interests of his client and to

ensure that his duty of loyalty to such client is not compromised. Similarly,

the prosecutor’s ultimate decision to place the matter on file with conditions

does nothing to absolve Mr. Clauson of his duty as counsel to perform

competently in pursuing the results obtained.

The Committee correctly found that, notwithstanding the clients’ support

28

of Mr. Clauson’s conduct and the results obtained, Mr. Clauson breached his

duty of competence in violation of N.H. R. Prof. Conduct 1.1.

III. MR. CLAUSON’S MISCONDUCT WARRANTS SUSPENSION.

The Committee undertook a sanction analysis, employing as its guide the

American Bar Association’s Standards for Imposing Lawyer Sanctions (1992)

(“Standards”). The Committee’s recommendation is entirely consistent with the

accepted purposes of attorney discipline: to protect the public, maintain public

confidence in the bar, preserve the integrity of the legal profession, and prevent

similar conduct in the future. Coffey’s Case, 152 N.H. 503, 513 (2005).

Under the first prong of the sanction analysis contemplated by the

Standards, the Committee found that Mr. Clauson violated his duty of loyalty

by representing Brenda and Todd in a criminal matter involving Todd’s alleged

assault of Brenda. Mr. Clauson failed to evaluate or discuss the issue of

conflict with his clients at any time and he proceeded in the face of a non-

waivable conflict in violation of N.H. R. Prof. Conduct 1.7 and 1.9.

The Committee also found that Mr. Clauson breached his duty to provide

competent representation by pursuing a change in the no-contact bail

condition and handling Todd’s defense to the criminal complaints without the

requisite knowledge and expertise in criminal practice and without associating

with a more skilled and knowledgeable lawyer. Mr. Clauson demonstrated no

real comprehension of the scope of representation and responsibilities as a

criminal defense lawyer. PCC 30 (pp. 17-18). Mr. Clauson also breached his

duty by failing, in a timely fashion, to obtain discovery required to evaluate the

29

actual or potential conflicts of interest associated with his representation of

both Brenda and Todd. PCC 30 (p. 18)

Pursuant to the second prong of the sanction analysis, the Respondent’s

mental state, the Committee considered whether Mr. Clauson acted with

intent, knowledge, or negligence. Wyatt’s Case, 159 N.H. 285, 307 (2009).

With respect to his breach of loyalty, the Committee correctly found that

Mr. Clauson acted, or failed to act, knowingly. Mr. Clauson knew at the outset

that he was representing both the criminal defendant and the alleged victim in

the Lebanon District Court proceeding. He should have known that,

notwithstanding their common plea to remove the no-contact order and their

protestations of Todd’s innocence, a review of the police report was required in

order to assess the clients’ respective interests. Mr. Clauson’s disinclination to

obtain such readily available information evinced a knowing violation. PCC 30

(pp. 19, 23).

Even if the conflict was not entirely clear to Mr. Clauson prior to the

June 30, 2009, hearing, he was alerted to the presence of a conflict by Judge

Cirone at that hearing. Rather than take corrective action, Mr. Clauson

persevered with his representation, depriving his clients of candid and

independent counsel, placing them both at risk of harm, and “cavalierly

ignoring the [conflict] issue.” PCC 30 (pp. 4, 18-20). Contrast Shillen’s Case,

149 N.H. at 139-140 (2003) [Respondent negligently failed to recognize a non-

waivable conflict while representing husband and wife in an auto accident

case, but withdrew when alerted to the issue by other counsel]. At least as of

30

June 30, 2009, the Committee could properly find that Mr. Clauson knew or

should have known of the conflict. PCC 30 (p. 20); Wyatt’s Case, 159 N.H. at

307-308.

With respect to his duty of competence, the Committee found that Mr.

Clauson was, at the very least, grossly negligent. PCC 30 (p. 19). Mr. Clauson

should have acknowledged his lack of sufficient knowledge and expertise in

criminal practice after the court declined to hear the bail issue in Todd’s

absence. Instead, he dismissed the ruling as “absurd.” Mr. Clauson should

have understood the difference between a domestic violence restraining order

and a criminal order of protection as a condition of bail; he should have known

what the no-contact order meant; and he should have read and understood the

governing statute at RSA 597. PCC 30 (pp. 17, 19).

Under the third prong of the sanction analysis, there is no doubt that Mr.

Clauson’s misconduct caused significant harm. Mr. Clauson’s violation of

Rules 1.7 and 1.9 represented a breach of the “bedrock duty of the legal

profession.” PCC 30 (p. 20) [citing Wyatt’s Case, 159 N.H. at 306 (2009)]. Mr.

Clauson’s violation of Rule 1.1 served to compound the damage.

Notwithstanding his clients’ support throughout this disciplinary

process, Mr. Clauson’s effort to navigate the criminal process under a conflict

of interest and without sufficient knowledge and skill resulted in the following:

a. Mr. Clauson deprived both clients of candid, loyal, and independent

advice. PCC 30 (p. 20).

b. Mr. Clauson placed Todd’s liberty at risk and caused delay in

31

obtaining relief when he pursued the no-contact bail issue on behalf

of Brenda and Todd. Id.

c. Mr. Clauson jeopardized Todd’s defense to the criminal charges, while

exposing Brenda to charges of providing false information to the police

(or lying in Court) and to disclosure of privileged information. Id.

d. By undertaking dual representation of the assailant and victim in the

underlying criminal proceeding, Mr. Clauson threatened the integrity

of, and public confidence in, the judicial system, and undermined the

reputation of the legal profession. State v. Ray, 325 S.W.3d at 503,

505, 511.

Upon review of the entire record, the Committee reasonably found that

“the Standards support a baseline sanction for Mr. Clauson’s misconduct of no

less than a public censure or, more appropriately a suspension from the

practice of law.” PCC 30, (p. 23) [citing Bruzga’s Case, 162 N.H. 52 (2011)].

Under the fourth prong of the analysis, the Committee considered

mitigating and aggravating factors relevant to sanction. It found no mitigating

factors. The Committee was not anxious to credit Mr. Clauson for the absence

of a dishonest or selfish motive based on his misguided agreement to serve as

the “cheaper alternative to other counsel.” PCC 30 (p. 23). Further, the

Committee properly declined to accept the Hearing Panel’s finding in mitigation

that Mr. Clauson was cooperative in the disciplinary process. PCC 28 (p. 1).

Mr. Clauson had a duty to cooperate and he showed no remorse or willingness

32

to accept responsibility for his conduct. Wolterbeek’s Case, 152 N.H. 710, 716

(2005).

Aggravating factors include Mr. Clauson’s substantial experience in the

practice of law, his refusal to acknowledge the wrongful nature of his conduct,

and his prior disciplinary record. See Standards § 9.22. PCC 30 (p. 23).

Mr. Clauson’s refusal to acknowledge any error in this case is reflected in

his efforts to minimize his involvement as counsel. PCC 30 (p. 23); See

Bruzga’s Case, 162 N.H. at 59, 63 (2011). Mr. Clauson is also inclined to

blame his troubles in this disciplinary matter on the judge who he claims

dislikes him. PCC 30 (pp. 23-24); 3 (p. 5). The Committee correctly found that

Mr. Clauson’s actions, pleadings, court appearances, correspondence, and

testimony establish that he engaged in dual representation with actual and

potential conflicts of interest at all stages of his involvement. PCC 30 (p. 24).

Similarly, Mr. Clauson rejects any suggestion that he was not competent,

in spite of his undisputed lack of experience in criminal practice and the

obvious flaws in his understanding of procedural and substantive aspects of

the no-contact bail issue. Mr. Clauson would also argue that, having

eventually convinced the court to remove the no-contact provision of the bail

order, having obtained a resolution of the case equivalent to “dropping the

charge” (PCC 3 (p. 5); 21 (pp. 186-187); 30 (p. 24)), and having made his clients

happy, his competency is beyond question and, in any event, no harm was

done. Appellant’s Brief, pp. 7, 11-13. Mr. Clauson’s rationale was properly

rejected below. PCC 28 (pp. 1-2); 30 (pp. 20, 24).

33

Mr. Clauson’s disciplinary record is significant. Mr. Clauson received a

reprimand in 1981 for use of persons to perform duties on behalf of a client

that were unauthorized or contrary to law, in violation of Canon 7 and DR 7-

102(A)(8) (illegal conduct or conduct contrary to disciplinary rule). Clauson, K.

William advs. Joseph Cicotte - #793198. A second reprimand was issued in

1987 for deceit, misrepresentation, and threatening a complainant in violation

of Rule 8.4(c). Clauson, K. William advs. Robert Summer - #863641. Mr.

Clauson received a third reprimand in 1996 for representing parties under a

conflict of interest in violation of Rule 1.9(a). Clauson, K. William advs. Ronald

Sears - #94-010. Mr. Clauson received a warning in 2005 to exercise care in

accurately characterizing evidence in support of his position. Clauson, K.

William advs. PCC and Richard Balagur - #02-092. Finally, in 2007, Mr.

Clauson was sanctioned with a public censure with conditions for violating

Rule 1.9(a). Clauson, K. William advs. Attorney Discipline Office - #03-099.

Mr. Clauson was required to take and pass the Multi-state Professional

Responsibility Exam (MPRE), a condition he promptly satisfied. PCC 30, pp.

24-25.

Mr. Clauson’s approach to the conflict issue in the 2007 case (#03-099)

is relevant to the sanction analysis in this matter. Mr. Clauson represented Dr.

Knowles in a contractual dispute with the Family Health Center, P.A., in

Lebanon, N.H. (FHC). Mr. Clauson formerly represented FHC at the inception

of its contractual relationship with Dr. Knowles, and Mr. Clauson and his firm

remained involved as counsel to the medical practice for approximately 15

34

years. When he agreed to represent Dr. Knowles in his dispute with FHC, Mr.

Clauson did not research his records to determine if there was a conflict of

interest. Significantly, when the issue of conflict was raised by FHC’s new

counsel, Mr. Clauson took the position that he did not recall ever representing

FHC. Mr. Clauson continued in pursuit of Dr. Knowles’s claims against FHC

for several months until disqualified by the Superior Court. PCC 30 (p. 25).

Given Mr. Clauson’s history of misconduct involving conflicts of interest,

and evidence in this case that he “turned a deaf ear to the Court’s concerns”

and “cavalierly” ignored the conflict issue, the Committee had cause for

concern that Mr. Clauson continues to exhibit a troubling pattern of behavior

and may not be inclined to modify his approach to conflicts of interest. See

Bruzga’s Case, 162 N.H. at 63. While the Committee’s vote to suspend Mr.

Clauson for six months rather than a longer period was not unanimous, there

is ample support in the record for consensus that, as the dissenters observed,

“Mr. Clauson has not given any indication that he will abide by the Rules of

Professional Conduct that all lawyers must adhere to. His actions and attitude

reflect a firm belief that he knows better than anyone else.” PCC 30 (p. 30); 28

(p. 2).

Considering the clear and convincing evidence of the aforesaid violations,

the baseline sanction, and the aggravating factors, the Committee correctly

found that Mr. Clauson should be suspended from the practice of law for six

months, and that, as conditions of reinstatement, he should be required to

retake and successfully complete an MPRE course and examination, and

provide the ADO with a written plan as to how he will evaluate conflicts of

interest when he resumes practice. PCC 30 (pp. 27-28).

CONCLUSION

In light of the foregoing, the Committee has properly found clear and

convincing evidence of violations of N.H. R. Prof. Conduct 1.7(a) and (b); 1.9(a);

1.1; and 8.4(a). The Committee's sanction of a six-month suspension with

conditions is amply supported by the record; it is in accord with both the

Standards and the purposes of attorney discipline as described by this Court.

Dated: May 3, 2012

Respectfully submitted, New Hampshire Supreme Court Attorney Discipline Office

James L. Kruse, Esquire NH Bar ID No. 1400 4 Chenell Drive, Suite 102 Concord, New Hampshire 03301 (603)224-5828

CERTIFICATION

I, James L. Kruse, as counsel for the New Hampshire Supreme Court Professional Conduct Committee, certify that two copies of the aforesaid Brief of the Professional Conduct Committee is being mailed on this 3rct day of May 2012, to K. William Clauson, Esquire, at Clauson & Atwood, 10 Buck Road, Hanover, New Hampshire 03755-2700, by first class mail postage prepaid.

J ~ es L. Kruse .Assistant Disciplinary Counsel

35

36

______________________________________________________________________________

APPENDIX TO BRIEF FOR

THE NEW HAMPSHIRE SUPREME COURT PROFESSIONAL CONDUCT COMMITTEE

______________________________________________________________________________

TABLE OF CONTENTS

Page(s) I. Text of Authorities .......................................................................... 37-49

A. New Hampshire Rules of Professional Conduct ...................... 37-39

B. New Hampshire Revised Statutes .......................................... 40-44

C. District Court Rules ................................................................... 45

D. American Bar Association’s Standards for Imposing Lawyer Sanctions ................................................... 46-48

37

New Hampshire Rules of Professional Conduct

Rule 1.1. Competence

(a) A lawyer shall provide competent representation to a client.

(b) Legal competence requires at a minimum:

(1) specific knowledge about the fields of law in which the lawyer practices;

(2) performance of the techniques of practice with skill;

(3) identification of areas beyond the lawyer's competence and bringing those areas to the client's attention;

(4) proper preparation; and

(5) attention to details and schedules necessary to assure that the matter undertaken is completed with no avoidable harm to the client's interest.

(c) In the performance of client service, a lawyer shall at a minimum:

(1) gather sufficient facts regarding the client's problem from the client, and from other relevant sources;

(2) formulate the material issues raised, determine applicable law and identify alternative legal responses;

(3) develop a strategy, in collaboration with the client, for solving the legal problems of the client; and

(4) undertake actions on the client's behalf in a timely and effective manner including, where appropriate, associating with another lawyer who possesses the skill and knowledge required to assure competent representation.

Rule 1.6. Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation

of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm or to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another; or

(2) to secure legal advice about the lawyer's compliance with these Rules; or

38

(3) to establish a claim or defense on behalf of the lawyer in controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(4) to comply with other law or a court order.

Rule 1.7. Conflicts of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation and with knowledge of the consequences.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation and with knowledge of the consequences. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Rule 1.9. Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

39

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Rule 8.4. Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) state or imply an ability to influence improperly a government agency or official; or

(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

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New Hampshire Statutes

597:2 Release of a Defendant Pending Trial.

I. Upon the appearance before the court or justice of a person charged with an offense, the court or justice shall issue an order that, pending arraignment or trial, the person be:

(a) Released on his personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph II;

(b) Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or

(c) Temporarily detained to permit revocation of conditional release pursuant to the provisions of paragraph V.

I-a. Except as provided in RSA 597:1-d, a person charged with a probation violation shall be entitled to a bail hearing. The court shall issue an order that, pending a probation violation hearing, the person be:

(a) Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph II;

(b) Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or

(c) Detained.

II. The court or justice shall order the prearraignment or pretrial release of the person on his or her personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that the court may require, unless the court determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of the person or of any other person or the community. The court may also consider as a factor in its determination under this paragraph or paragraph III that a person who is detained as a result of his or her inability to meet the required conditions or post the required bond is the parent and sole caretaker of a child and whether, as a result, such child would become the responsibility of the division of children, youth, and families.

III. If the court or justice determines that the release described in paragraph II will not reasonably assure the appearance of the

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person as required or, as described in paragraph II or VI, will endanger the safety of the person or of any other person or the community, he shall issue an order that includes the following conditions:

(a) The condition that the person not commit a crime during the period of release; and

(b) Such further condition or combination of conditions that he determines will reasonably assure the appearance of the person as required and the safety of the person or of any other person or the community, which may include the condition that the person:

(1) Execute an agreement to forfeit, upon failing to appear within 45 days of the date required, such designated property, including money, as is reasonably necessary to assure the appearance of the person as required, and post with the court such indicia of ownership of the property or such percentage of the money as the court or justice may specify;

(2) Furnish bail for his appearance by recognizance with sufficient sureties or by deposit of moneys equal to the amount of the bail required as the court or justice may direct; and

(3) Satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of the person or of any other person or the community.

In considering the conditions of release described in subparagraph III(b)(1) or III(b)(2), the court may upon its own motion, or shall upon the motion of the state, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that because of its source will not reasonably assure the appearance of the person as required.

III-a. If a person is charged with any of the offenses listed in RSA 173-B:1, I or with violation of a protective order issued under RSA 458:16, III or RSA 173-B, the court or justice may order preventive detention without bail, or, in the alternative, restrictive conditions including but not limited to electronic monitoring and supervision, if there is clear and convincing evidence that the person poses a danger to another. The court or justice may consider, but shall not be limited to considering, any of the following conduct as evidence of posing a danger:

(a) Threats of suicide.

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(b) Acute depression.

(c) History of violating protective orders.

(d) Possessing or attempting to possess a deadly weapon in violation of an order.

(e) Death threats or threats of possessiveness toward another.

(f) Stalking, as defined in RSA 633:3-a.

(g) Cruelty to or violence directed toward pets.

III-b. A no-contact provision contained in any bail order shall not be construed to:

(a) Prevent counsel for the defendant to have contact with counsel for any of the individuals protected by such provision; or

(b) Prevent the parties, if the defendant and one of the protected individuals are parties in a domestic violence or marital matter, from attending court hearings scheduled in such matters or exchanging copies of legal pleadings filed in court in such matters.

IV. In a release order issued pursuant to the provisions of this section, the court or justice shall include a written statement that sets forth:

(a) All of the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person's conduct; and

(b) The provisions of RSA 641:5, relative to intimidation of witnesses and informants.

V. A person charged with an offense who is, and was at the time the offense was committed, on

(a) Release pending trial for a felony or misdemeanor under federal or state law;

(b) Release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under federal or state law; or

(c) Probation or parole for any offense under federal or state law, except as provided in RSA 597:1-d, III may be detained for a period of not more than 72 hours from the time of his arrest, excluding Saturdays, Sundays and holidays. The law enforcement agency making the arrest shall notify the appropriate court, probation or parole official, or federal, state or local law enforcement official. Upon such notice the court shall also direct the clerk to notify by telephone the division of field services, department of corrections, of the pending bail hearing. If

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the official fails or declines to take the person into custody during that period, the person shall be treated in accordance with the provisions of law governing release pending trial. Probationers and parolees who are arrested and fail to advise their supervisory probation officer or parole officer in accordance with the conditions of probations and parole may be subject to arrest and detention as probation and parole violators.

VI. Notwithstanding any law to the contrary, upon the appearance of a person charged with a class B misdemeanor, the court or justice shall issue an order that, pending arraignment, the person be released on his personal recognizance, unless the court determines that such release will endanger the safety of the person or of any other person or the community. The court shall appoint an attorney to represent any indigent person charged with a class B misdemeanor denied release for the purpose of representing such person at any detention hearing.

597:7-a Detention and Sanctions for Default or Breach of Conditions.

I. A peace officer may detain an accused until he can be brought before a justice if he has a warrant issued by a justice for default of recognizance or for breach of conditions of release or if he witnesses a breach of conditions of release. The accused shall be brought before a justice for a bail revocation hearing within 48 hours, Saturdays, Sundays and holidays excepted.

I-a. If a person violates a restraining order issued under RSA 458:16, III, or a protective order issued under RSA 633:3-a, or a temporary or permanent protective order issued under RSA 173-B by committing assault, criminal trespass, criminal mischief, or another criminal act, a peace officer shall arrest the accused, detain the accused pursuant to RSA 594:19-a, bring the accused before a justice pursuant to RSA 594:20-a, and refer the accused for prosecution. Such arrest may be made within 12 hours after a violation without a warrant upon probable cause whether or not the violation is committed in the presence of the peace officer.

II. A person who has been released pursuant to the provisions of this chapter and who has violated a condition of his release is subject to a revocation of release, an order of detention, and a prosecution for contempt of court.

III. The state may initiate a proceeding for revocation of an order of release by filing a motion with the court which ordered the release and the order of which is alleged to have been violated. The court may issue a warrant for the arrest of a person charged with violating a condition of release, and the person shall be brought before the

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court for a proceeding in accordance with this section. The court shall enter an order of revocation and detention if, after a hearing, the court:

(a) Finds that there is:

(1) Probable cause to believe that the person has committed a federal, state, or local crime while on release; or

(2) Clear and convincing evidence that the person has violated any other condition of release or has violated a temporary or permanent protective order by conduct indicating a potential danger to another; and

(b) Finds that:

(1) There is no condition or combination of conditions of release that will assure that the person will not flee or that the person will not pose a danger to the safety of himself or any other person or the community; or

(2) The person is unlikely to abide by any condition or combination of conditions of release.

If there is probable cause to believe that, while on release, the person committed a federal or state felony, a rebuttable presumption arises that no condition or combination of conditions will assure that the person shall not pose a danger to the safety of any other person or the community. If the court finds that there are conditions of release that shall assure that the person will not flee or pose a danger to the safety of himself or any other person or the community, and that the person will abide by such conditions, he shall treat that person in accordance with the provisions of RSA 597:2 and may amend the conditions of release accordingly.

IV. The state may commence a prosecution for contempt if the person has violated a condition of his release.

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Rules of the Circuit Court of the State of New Hampshire - - District Division

Criminal Rules

Rule 2.1. The Complaint

A. The complaint shall be drafted in accordance with the Statute.

B. Unless otherwise permitted by law, the Court may permit a complaint to be amended at any time before finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

C. Every defendant shall be entitled to a copy of the complaint upon request and without cost to the defendant. In courts without photocopying facilities, the defendant shall be entitled to copy the complaint.

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American Bar Association’s

Standards for Imposing Lawyer Sanctions

Section 3.0: Generally

In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:

(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.

Section 4.3: Failure to Avoid Conflicts of Interest

4.31 Disbarment is generally appropriate when a lawyer, without the informed consent of client(s):

(a) engages in representation of a client knowing that the lawyer’s interests are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client; or

(b) simultaneously represents clients that the lawyer knows have adverse interests with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client; or

(c) represents a client in a matter substantially related to a matter in which the interests of a present or former client are materially adverse, and knowingly uses information relating to the representation of a client with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client.

4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.

4.33 Reprimand4 is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.

4 Section 4.33 uses the term “Reprimand.” The most analogous sanction in New

Hampshire is a Public Censure.

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4:34 Admonition5 is generally appropriate when a lawyer engages in an isolated instance of negligence in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes little or no actual or potential injury to a client.

Section 4.5: Lack of Competence

4.51 Disbarment is generally appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.

4.52 Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client.

4.53 Reprimand is generally appropriate when a lawyer:

(a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or

(b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client.

4.54 Admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in determining whether he or she is competent to handle a legal matter, and causes little or no actual or potential injury to a client.

Section 9.0: Aggravation and Mitigation

9.1 Generally

After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose.

9.2 Aggravation

9.21 Definition. Aggravation or aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed.

9.22 Factors which may be considered in aggravation.

Aggravating factors include:

(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct;

5 Section 4.34 uses the term “Admonition.” The most analogous sanction in New

Hampshire is a Reprimand.

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(d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by

intentionally failing to comply with rules or orders of the disciplinary agency;

(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;

(g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; (k) illegal conduct, including that involving the use of controlled

substances.

9.3 Mitigation

9.31 Definition. Mitigation or mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.

9.32 Factors which may be considered in mitigation.

Mitigating factors include:

(a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify

consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative

attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism

or drug abuse when: (1) there is medical evidence that the respondent is affected by

a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the

misconduct; (3) the respondent’s recovery from the chemical dependency or

mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and

(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely;

(j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; (m) remoteness of prior offenses.