Case of Drucker

• Decision Date: 09 July 1990
• Docket Number: No. LD-89-002,LD-89-066,LD-89-002
• Citation: 133 N.H. 326,577 A.2d 1198
• Parties: DRUCKER'S CASE
• Court: New Hampshire Supreme Court

Page 1198

577 A.2d 1198

133 N.H. 326

DRUCKER'S CASE

No. LD-89-002, LD-89-066.

Supreme Court of New Hampshire.

July 9, 1990.

Patricia McKee, Exeter, Bar Counsel, by brief and orally, for the Committee on Professional Conduct in No. LD-89-002.

Allen I. Dublin, Meredith, by brief and orally, for the respondent in No. LD-89-002.

Anthony A. McManus, Dover, Bar Counsel, orally, for the Committee on Professional Conduct in No. LD-89-066.

Leonard M. Drucker, Laconia, orally, pro se, in No. LD-89-066.

JOHNSON, Justice.

The Supreme Court Committee on Professional Conduct (Committee) filed two unrelated petitions to suspend Leonard M. Drucker from the practice of law in New Hampshire. See Sup.Ct.R. 37(13)(a). The second petition alleges respondent Drucker's failure to pursue an arbitration matter referred to him by a Connecticut attorney, in violation of the Rules of Professional Conduct, and requests a three-month suspension. Because he admits all the allegations in this petition, we will not discuss the facts, and consider it only with respect to the sanction to be imposed.

The first petition alleges that the respondent violated three Rules of Professional Conduct: Rule 1.7(b), by representing a client when the representation was materially limited by his own sexual interest in the client; Rule 1.8(b), by using information about the client's fragile emotional state and mental disorder to her disadvantage by engaging in sexual relations with her, leading her to suffer emotional turmoil; and Rule 1.14(a), by failing to maintain a normal attorney-client relationship with the client knowing she was in a fragile emotional state and had a diagnosed mental disability.

After the petition was filed, Robert Upton, II, was appointed by this court as a judicial referee, and a hearing was held before him on August 15-16, 1989. See Sup.Ct.R. 37(13)(e). In his report, the referee found that the complainant's "testimony concerning her sexual relationship with the Respondent was credible" and that "the Respondent's denial of the sexual relationship was not credible." The referee then set forth the following specific findings of fact.

The complainant, Cheryl M., retained the respondent in August 1987 to represent her in a divorce proceeding. At that time, Cheryl M. was under the care of a psychiatrist and was emotionally fragile. During one of their first meetings, Cheryl M. informed the respondent of her psychiatric treatment. The respondent told Cheryl M. that his marriage was also very stressful, and that he was attracted to her.

Despite the existence of conflicting testimony concerning the events that followed, the referee found as fact Cheryl M.'s allegations that she had sexual relations with Drucker on three occasions. The referee found her version of the events credible because "she remembered with great detail the events" and "[s]he also knew a great deal about the physical condition and habits of the Respondent" that she would not have "learned in a normal conversation with him."

At the initiation of the respondent, the affair between Cheryl M. and Drucker ended shortly after it began. Although short-lived, the sexual contact between the two caused Cheryl M. to become emotionally and physically attracted to Drucker. When he terminated the affair, she felt that it was another rejection in her life, but remained hopeful that his feelings for her would change and that he would be attracted to her once again. Cheryl M. wrote love letters to the respondent, which were not delivered, and she kept a diary that set forth her feelings about him. Several pages of this diary were discovered by her husband, who later confronted Cheryl M. about the affair in the presence of their son.

After the affair ended, Drucker continued to represent Cheryl M. in the divorce proceedings, but the referee found that she "was unable to separate her confidence in him as her lawyer from her unrequited love." The referee concluded that this situation "had a deleterious [e]ffect on [Cheryl M.] and caused her to take actions in her marriage she might otherwise have avoided." In addition, he found "that the Respondent knew or should have known that [Cheryl M.] would suffer emotionally as a consequence of his actions." Based on these findings, the referee found that "[t]he conduct of the Respondent in engaging in a sexual relationship with the Complainant under the circumstances set forth herein," violated Rules 1.7(b), 1.8(b) and 1.14(a) of the Rules of Professional Conduct.

Throughout the proceedings before the Committee and the referee, the respondent denied that he engaged in sexual relations with Cheryl M. He urges us to dismiss the petition against him because (1) the Committee did not prove the allegations against him by clear and convincing evidence, (2) the referee did not specifically rule on the parties' proposed findings of fact and rulings of law, and (3) the referee refused to order production of a medical record.

In reviewing the referee's findings in an attorney discipline case, we must determine whether a reasonable person could reach the same conclusion as the referee based upon the evidence presented at the hearing. Bourdon's Case, 132 N.H. 365, 370, 565 A.2d 1052, 1055 (1989); Fitzpatrick's Case, 132 N.H. 211, 214, 566 A.2d 157, 159 (1989). If we determine that the record supports the referee's findings and rulings, we then decide on an appropriate sanction to impose against the respondent. Wehringer's Case, 130 N.H. 707, 710, 547 A.2d 252, 253 (1988), cert. denied, 489 U.S. 1001, 109 S.Ct. 1103, 103 L.Ed.2d 169 (1989).

In his first argument, Drucker contends that the Committee failed to prove the alleged violations by clear and convincing evidence. See Edes' Case, 118 N.H. 815, 817, 395 A.2d 498, 499 (1978). He bases his contention on the referee's failure to state explicitly that the Committee met its burden of proof by clear and convincing evidence. He also argues that more than a finding relative to the credibility of witnesses is needed to meet the clear and convincing standard, and that certain inconsistencies in Cheryl M.'s testimony raise serious doubts about her veracity. We disagree, and hold that the record, reviewed in light of the totality of the referee's findings, illustrates that the evidence of Drucker's misconduct was clear and convincing. See id.

Cheryl M. testified that she first contacted the respondent to represent her in her divorce on August 17, 1987, and four days later she went to his office for an initial consultation. She was very nervous because they discussed her impending divorce, her marriage, her sexual relations with her husband and her emotional problems. She told him she had agoraphobia, which is an anxiety disorder, and that she was seeing Dr. Joseph Sack, a psychiatrist, for treatment of this condition. The evidence also suggests that she mentioned she was being treated with medications.

On August 24, 1987, Cheryl M. returned to the respondent's office to deliver a financial affidavit. She testified that she was, again, very nervous and kept tossing her keys in the air. He sat down next to her, held her hand, and said he was also in a stressful marriage. He then asked her to stand up, embraced her and kissed her. He apologized and said he would refer her to another lawyer. She declined the offer because she did not want to go through the process of telling another lawyer all the personal information she had just told Drucker. Later that day, he called her at home and asked her if she was all right. During the conversation he told her he was very attracted to her. She testified that the thought that he cared for her was especially comforting to her because she was so distraught about her home life.

Cheryl M. then recounted three subsequent visits during which she engaged in sexual activity with the respondent. She could not remember the exact times of the events except that they all occurred between 9:00 a.m. and 2:00 p.m. The first was on August 25, 1987. The second event occurred two days later, on August 27, 1987, the same day Drucker's wife took their daughter to the hospital for treatment of some bruises. The third encounter, which was either before or after August 27, 1987, occurred on a day when a particular client was in the respondent's office reception area.

Drucker argues that inconsistencies in Cheryl M.'s story cast doubt on her credibility. Our review of the record reveals that the referee acted reasonably when he determined that all conflicts in the testimony were resolved in favor of Cheryl M., and accordingly we hold that the Committee met its burden of proving the alleged violations by clear and convincing evidence. The referee's failure to state the applicable burden of proof is not error in this case because he found that Cheryl M.'s testimony was "credible" and that Drucker's testimony was "not credible." Therefore, he not only found that it was highly probable that the two parties engaged in sexual activity, see McCormick On Evidence § 340, at 959-60 (E. Cleary 3d ed. 1984), but that the sexual encounters did, in fact, take place. This clear finding of fact is more than sufficient to meet the clear and convincing standard. Furthermore, we can presume the referee knew and applied the proper standard of proof because it was set out in the respondent's proposed findings and rulings, which the referee reported he had reviewed. Cf. State v. Radziewicz, 122 N.H. 205, 212, 443 A.2d 142, 147 (1982).

We also find that the referee did not err in relying on Cheryl M.'s testimony as support for his conclusion that Drucker violated the professional conduct rules. A referee as the trier of fact, "may accept or reject in whole or in part any testimony of any witness or party." Gordon v. Gordon, 117 N.H. 862, 865, 379 A.2d 810, 813 (1977). It is well settled that "[c]redibility as well as weight given to testimony is a question of fact for the court and if the...