Petition of Sanjeev Lath & a.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Original
No. LD-2016-0005
PETITION OF SANJEEV LATH & a.
Submitted: November 17, 2016
Opinion Issued: February 3, 2017
Sanjeev Lath and Barbara Belware, self-represented parties, by brief.
Janet F. DeVito, general counsel (Brian R. Moushegian, deputy general
counsel, on the brief), for the attorney discipline office.
Devine, Millimet & Branch, Professional Association, of Concord (Mitchell
M. Simon and Joshua M. Wyatt on the brief), for John F. Bisson.
BASSETT, J. The petitioners, Sanjeev Lath and Barbara Belware, have
petitioned for a writ of certiorari, see Sup. Ct. R. 11, challenging the decisions
of the Office of General Counsel of the Attorney Discipline Office (ADO) and the
Complaint Screening Committee (CSC). The ADO had dismissed a grievance
filed by the petitioners against Attorney John F. Bisson. Upon the petitioners’
request for reconsideration, the CSC affirmed the ADO’s decision. In their
petition, the petitioners argue that the ADO and the CSC erred by declining to
docket their grievance as a complaint, and that the CSC erred by failing to
answer the questions raised in the petitioners’ request for reconsideration. The
respondents—the ADO and Attorney Bisson—challenge the merits of the
petitioners’ claims, and also assert that the petitioners lack standing to bring
this petition. Because we conclude that the petitioners lack standing, we
dismiss the petition.
We begin by providing background regarding the attorney discipline
system. Pursuant to our rule-making authority under the State Constitution,
see N.H. CONST. pt. II, art. 73-a, we have established an attorney discipline
system to discharge our inherent and statutory authority to discipline
attorneys, Petition of Brooks, 140 N.H. 813, 817 (1996); RSA 311:8 (2015); RSA
490:4 (2010); see also Sup. Ct. R. 37, 37A. “[T]he purpose of attorney
discipline is to protect the public, maintain public confidence in the bar,
preserve the integrity of the legal profession, and prevent similar [mis]conduct
in the future . . . .” Bosse’s Case, 155 N.H. 128, 131 (2007).
The attorney discipline system is governed by the Supreme Court Rules,
see Sup. Ct. R. 37, 37A, and has “disciplinary jurisdiction” over “[a]ny attorney
admitted to practice law in this State,” Sup. Ct. R. 37(1)(b). The standards of
conduct for New Hampshire attorneys are set forth in the New Hampshire
Rules of Professional Conduct. N.H. R. Prof. Conduct Statement of Purpose.
An attorney may be disciplined under the Supreme Court Rules if it is
determined by clear and convincing evidence that the attorney violated the
Rules of Professional Conduct. See Young’s Case, 154 N.H. 359, 366 (2006);
see also Sup. Ct. R. 37A(III)(d)(2)(C).
One of the responsibilities of the ADO is to conduct an initial review of a
grievance submitted by an individual. See Sup. Ct. R. 37A(II)(a)(2)(A), (3)(A). A
grievance is a written submission that “call[s] to [the ADO’s] attention conduct
that the grievant believes may constitute misconduct by an attorney.” Sup. Ct.
R. 37A(I)(c). When a grievance is filed, the ADO reviews the grievance to
determine whether the attorney in question is subject to the disciplinary
jurisdiction of the attorney discipline system and whether the grievance meets
certain other enumerated requirements. Sup. Ct. R. 37A(II)(a)(3)(A)-(B).
If the ADO concludes that a grievance satisfies those requirements, it
dockets the grievance as a complaint—otherwise, the grievance is dismissed.
Sup. Ct. R. 37A(II)(a)(3)(C), (5)(A). If the ADO declines to docket a grievance, the
grievant may file a request for reconsideration. Sup. Ct. R. 37A(II)(a)(4)(C). The
request is reviewed by the CSC, id., a nine-member panel composed of five
attorneys and four “non-attorneys,” Sup. Ct. R. 37(5)(a). The CSC must either
“affirm the decision of the [ADO] or direct that the grievance be docketed as a
complaint.” Sup. Ct. R. 37A(II)(a)(4)(C). Once a grievance is docketed as a
complaint, the respondent attorney must file an answer to the complaint, and
the ADO may conduct a further investigation “as may be appropriate.” Sup.
Ct. R. 37A(II)(a)(5)(C), (a)(6).
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Turning to the present petition, the record reflects the following facts.
On December 30, 2015, the petitioners filed a grievance with the ADO. The
petitioners’ grievance arises out of the annual meeting of the Oak Brook
Condominium Owners’ Association, which took place in November 2015. The
petitioners are unit owners at Oak Brook Condominium. Attorney Bisson
represented the condominium association at the meeting. The petitioners
allege that, during the meeting, Attorney Bisson violated the Rules of
Professional Conduct by, among other things, recording the meeting without
the petitioners’ knowledge or consent.
The ADO reviewed the factual allegations in the petitioners’ grievance,
along with the exhibits that the petitioners provided. On January 15, 2016,
the ADO’s assistant general counsel sent a three-page letter to the petitioners,
in which he reviewed the allegations, assessed the claimed violations, and
explained the reasoning that led to his conclusion that “a hearing panel would
not likely find clear and convincing evidence that” Attorney Bisson violated the
Rules of Professional Conduct. Regarding the claim that Attorney Bisson made
a recording without the petitioners’ knowledge or consent, he noted that one of
the petitioners’ exhibits showed that, in fact, the meeting had not been
recorded. Based upon the analysis of the petitioners’ allegations, the ADO
declined to docket the petitioners’ grievance as a complaint.
The petitioners filed a request for reconsideration, asserting that their
grievance satisfied the requirements for docketing and that the ADO erred by
dismissing their grievance. In their request, the petitioners listed a number of
alleged errors in the ADO’s decision, which they labeled “[q]uestion[s].” In a
letter dated February 25, 2016, the CSC informed the petitioners that it had
affirmed the ADO’s decision. The petitioners then filed a “Motion for
Clarification” with the CSC, asking that the CSC answer the questions that the
petitioners had raised in their request for reconsideration. The CSC responded
to the motion by letter, dated March 18, 2016, acknowledging receipt of the
motion, and stating that “th[e] matter is now closed.” This petition followed.
In their petition, the petitioners argue that the Supreme Court Rules
required the ADO to docket their grievance as a complaint and initiate an
investigation. They assert that the ADO and the CSC erred by declining to
docket their grievance on the basis that a hearing panel would be unlikely to
find, by clear and convincing evidence, that Attorney Bisson violated the Rules
of Professional Conduct.
The petitioners further contend that the CSC erred by failing to answer
the questions that the petitioners raised in their request for reconsideration.
Although the petitioners do not identify a rule that requires the CSC to
explicitly answer questions posed in a request for reconsideration, we read the
petitioners’ argument to be that the CSC was required to respond to each
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specific question raised. Thus, all of the petitioners’ claims on appeal relate to
alleged violations of the Supreme Court Rules by the ADO and the CSC.
The respondents dispute the merits of the petitioners’ arguments.
However, they also argue that the petitioners lack standing to bring this
petition. We agree.
Certiorari is an extraordinary remedy that is not granted as a matter of
right, but rather at the discretion of the court. Petition of State of N.H. (State v.
MacDonald), 162 N.H. 64, 66 (2011); see Sup. Ct. R. 11(1). Our review of an
agency’s decision on a petition for a writ of certiorari entails examination of
whether the agency “acted illegally with respect to jurisdiction, authority or
observance of the law or has unsustainably exercised its discretion or acted
arbitrarily, unreasonably or capriciously.” Petition of Chase Home for
Children, 155 N.H. 528, 532 (2007). “We exercise our power to grant such
writs sparingly and only where to do otherwise would result in substantial
injustice.” Id.
Generally, “[i]n evaluating whether a party has standing to sue, we focus
on whether the party suffered a legal injury against which the law was
designed to protect.” Libertarian Party of N.H. v. Sec’y of State, 158 N.H. 194,
195 (2008) (quoting Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578,
587 (2000)). This requirement “rests upon the constitutional principle that the
judicial power ordinarily does not include the power to issue advisory
opinions.” Id. at 196; see also Duncan v. State, 166 N.H. 630, 641-43 (2014)
(discussing constitutional significance of the doctrine of standing). In the
context of a petition for a writ of certiorari, we have held that a party has
standing if his “rights may be directly affected by the decision of a lower
tribunal.” Melton v. Personnel Comm’n, 119 N.H. 272, 277 (1979) (emphasis
omitted).
In other words, a person seeking to challenge an agency’s action through
a petition for a writ of certiorari must show that his personal rights have been
or will be “impaired or prejudiced” by the agency’s decision. Duncan, 166 N.H.
at 640-45 (discussing constitutional requirements for standing). A party does
not satisfy this requirement if his only injury is a “generalized wrong allegedly
suffered by the public at large.” Id. at 646 (quotation omitted). Similarly, a
mere general interest in an administrative proceeding—for example, an interest
in ensuring the “proper administration of the laws”—is not sufficient to confer
standing. Id. at 644 (quotation omitted); see also Appeal of N.H. Right to Life,
166 N.H. 308, 314-15 (2014).
To determine whether a grievant has a personal interest in an attorney
disciplinary proceeding that is sufficient to confer standing, we examine the
nature and purposes of the attorney disciplinary system. See Appeal of
Campaign for Ratepayers Rights, 142 N.H. 629, 632 (1998) (assessing whether
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parties had standing to appeal decision of Public Utilities Commission by
reference to the nature of the commission’s determination). As noted above,
the purposes of attorney discipline include the protection of the public and the
maintenance of public confidence in the bar. See Bosse’s Case, 155 N.H. at
131. Attorney discipline is not intended to punish attorneys, id., nor does it
exist “as a means of redress for one claiming to have been personally wronged
by an attorney,” Cotton v. Steele, 587 N.W.2d 693, 699 (Neb. 1999). Instead,
“the real question at issue in a [disciplinary] proceeding is the public interest
and an attorney’s right to continue to practice a profession imbued with public
trust.” State v. Merski, 121 N.H. 901, 909 (1981) (quotation omitted); see also
Cotton, 587 N.W.2d at 699.
As a consequence, disciplinary proceedings are not treated as “lawsuits
between parties litigant but rather are in the nature of an inquest or inquiry as
to the conduct of the respondent [attorney].” Merski, 121 N.H. at 909
(quotation omitted). The grievant participates in the proceedings not to enforce
his or her own rights, but to “supply evidence of the alleged attorney
malfeasance.” Akinaka v. Disciplinary Board, 979 P.2d 1077, 1085 (Haw.
1999). This principle is reflected in the rules governing the attorney discipline
system, which make clear that a grievant may not control the prosecution of a
charge, see Sup. Ct. R. 37(18), and that the complainant is not a party to the
disciplinary proceeding, Sup. Ct. R. 37A(I)(j).
Because attorney disciplinary proceedings are structured in this manner,
no personal rights or remedies of the grievant are adjudicated in, or directly
affected by, a disciplinary proceeding. The grievant neither receives a legally
cognizable benefit when an attorney is disciplined, nor sustains a legally
cognizable injury when the attorney is not disciplined. Rather, the benefit of
attorney discipline is bestowed upon the public at large, Merski, 121 N.H. at
909, and “the only one who stands to suffer direct injury in a disciplinary
proceeding is the lawyer involved,” Doyle v. Oklahoma Bar Assn., 998 F.2d
1559, 1567 (10th Cir. 1993). Nor does the grievant have a personal stake in
the proceedings by virtue of his participation in the disciplinary process. As we
have observed, an agency may “permit third parties to participate in
proceedings before it . . . without creating a right in those parties to review a
negative decision that the [agency] may ultimately make.” Ruel v. N.H. Real
Estate Appraiser Bd., 163 N.H. 34, 41 (2011) (quotation omitted). Simply put,
regardless of how the ADO or the CSC ultimately addresses a grievance, no
legally cognizable interest of the grievant is implicated in an attorney
disciplinary proceeding. See In re Attorney Disciplinary Appeal, 650 F.3d 202,
204 (2d Cir. 2011) (stating that a complainant lacks standing because his
interest “results only from [his] status as a member of the public at large”).
Our reasoning is similar to that employed when courts consider whether,
and to what extent, a victim may participate in a criminal prosecution. As a
general proposition, “a private citizen lacks a judicially cognizable interest in
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the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973). It is for this reason that, generally, a victim has no right
to intervene in the criminal case of the accused, see Rullo v. Rullo, 121 N.H.
299, 300 (1981), to appeal the substantive rulings of the trial court, see, e.g.,
Cooper v. District Court, 133 P.3d 692, 703-05 (Alaska Ct. App. 2006)
(collecting cases), or to contest the prosecutor’s decision to dismiss criminal
charges, Gansz v. People, 888 P.2d 256, 258-59 (Colo. 1995) (en banc). These
cases reflect the underlying principle that “[a] crime is a public wrong, raising
an issue between the state and the accused,” rather than between the accused
and the accuser. 1 R. McNamara, New Hampshire Practice: Criminal Practice
and Procedure § 1.01, at 1 (2010). This logic—that, given the purpose and
design of the criminal justice system, a victim does not have standing to seek
judicial review of a criminal disposition—applies with equal force to the
attorney discipline system.
Therefore, in light of the nature and purposes of the attorney discipline
system, we conclude that a grievant does not have a personal interest in the
outcome of an attorney disciplinary proceeding that is sufficient to confer
standing. In reaching this conclusion, we join the many courts that have
likewise held that a grievant does not have standing to challenge the
disciplinary authority’s disposition of a grievance. See, e.g., In re Request for
Investigation of an Atty., 867 N.E.2d 323, 324-25 (Mass. 2007); Rousseau v.
Statewide Grievance Committee, 133 A.3d 947, 951 (Conn. App. Ct. 2016) (per
curiam); see also In re Attorney Disciplinary Appeal, 650 F.3d at 203 (collecting
cases); Akinaka, 979 P.2d at 1084-86. We agree with those courts that have
reasoned that to confer standing upon a private individual in these
circumstances would shift the focus of the disciplinary process from the public
interest to the private interests of the grievant. See, e.g., Akinaka, 979 P.2d at
1085. To do so would contravene the essential purpose of the attorney
discipline system—to protect the public.
Accordingly, because the petitioners lack standing to appeal the
disposition of their grievance, we dismiss their petition for a writ of certiorari.
See Libertarian Party of N.H., 158 N.H. at 196.
Dismissed.
DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.
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