In re Coffey
| Decision Date | 18 April 2008 |
| Docket Number | No. JD-2007-003.,JD-2007-003. |
| Court | New Hampshire Supreme Court |
| Parties | In re COFFEY'S CASE. |
Wiggin & Nourie, P.A., of Manchester (Richard B. McNamara on the brief and orally), for the Judicial Conduct Committee.
Upton & Hatfield, LLP, of Portsmouth (Russell F. Hilliard on the brief and orally), for the respondent.
The New Hampshire Supreme Court Committee on Judicial Conduct (JCC) determined that the respondent, Superior Court Judge Patricia C. Coffey, engaged in serious misconduct in violation of Canons 1 and 2 of the Code of Judicial Conduct (the Code). See Sup.Ct. R. 38. This conclusion was based, in part, upon Judge Coffey's admission that she aided her husband in protecting his assets from the reach of creditors and, consequently, impeded the Professional Conduct Committee (PCC) in its efforts to collect on a valid, court-ordered debt. In light of its findings, the JCC recommended that Judge Coffey be: (1) publicly censured; (2) suspended without pay from all judicial duties and responsibilities for three months; and (3) ordered to reimburse the JCC for the expenses incurred in prosecuting her case. On appeal, Judge Coffey urges us to adopt the JCC's recommended sanctions or, in the alternative, to reduce the sanction to public censure only. We adopt the JCC's recommendation for public censure and grant its request for reimbursement, but we conclude, based upon the analysis that follows, that the three-month suspension must be increased to three years.
The record supports the following facts. Judge Coffey has been a New Hampshire Superior Court justice for approximately fifteen and a half years. Prior to serving on the superior court, she was a district court judge for two years, a special justice on the municipal court for approximately two years, and a member of the JCC for several years.
This disciplinary matter was commenced in response to Judge Coffey's conduct during, and subsequent to, the PCC proceeding brought against her husband, John J. Coffey. See Coffey's Case, 152 N.H. 503, 880 A.2d 403 (2005). By way of background, Mr. Coffey had charged an elderly, mentally ill client an excessive fee in connection with an appeal regarding residential property on Ocean Boulevard in Rye. Id. at 504-05, 880 A.2d 403. When his elderly client expressed concern about paying his fee in cash, Mr. Coffey convinced her to sell him the property that was the subject of the dispute, " largely [as] a gift, and partly for fees," for $150,000 less than its assessed value. Id. A referee determined that this fee was "clearly excessive" and that the elderly client "lacked the mental capacity to make an informed decision about conveying the [subject] property." Id. at 508, 510, 880 A.2d 403. We held that Mr. Coffey had violated New Hampshire Rules of Professional Conduct 1.4(b), 1.5(a), 1.7(b), 1. 8(a)(1), 1.8(b), 1.8(j), 2.1 and 8.4(a) and ordered that he be disbarred. Id. at 504, 880 A.2d 403. It has not been alleged that Judge Coffey participated in any way in the conduct giving rise to Mr. Coffey's disbarment.
The disciplinary hearings against Mr. Coffey were commenced in June 2003. Judge Coffey later testified in this case that when she looked at the PCC's charges, she thought that Mr. Coffey had "probably violated ... the canon [ ] on ... taking an interest in property that was the subject of litigation," but felt that all of the rest of the charges, including the ones regarding "his lack of honesty or integrity," were not valid. Judge Coffey also testified that she "knew or should have known that ... there could well be legal fees owed by [Mr. Coffey] to the PCC" arising from his disciplinary proceedings, but added that such debts "w[ere]n't anything [she] thought of at the time." Indeed, while she conceded that she "should have thought of" the possibility of such debts, she insisted that she "didn't."
The PCC conducted its final hearing in Mr. Coffey's case on October 31, 2003. Four days later, Judge Coffey and Mr. Coffey executed legal documents establishing the "Coffey Family Revocable Trust" (the Trust), of which Judge Coffey was the sole trustee and beneficiary. As the sole trustee, Judge Coffey was permitted to pay "income ... and such parts of the principal of th[e] [T]rust to, or for the benefit of" herself. Moreover, she was the only person who had the express authority to revoke the Trust. Mr. Coffey, in contrast, had no legal rights or equitable interest in the Trust assets and would only obtain such rights if Judge Coffey died or became incapacitated. The Trust further provided, as part of a spendthrift provision, that "the interest of any beneficiary ... shall not be reached by ... or be subject to the interference or control of creditors ... and all payments to, or the interest of, any beneficiary shall be free from the control or claim of any spouse." Judge Coffey asserts that Mr. Coffey drafted the Trust and, to the best of her recollection, obtained the Trust documents from a standard legal-forms text.
As indicated in a "Schedule A," the Coffeys funded the Trust with the following assets: First, Mr. Coffey transferred to the Trust his individual 100% interest in the condominium that had served as office space for his law practice, together with all furniture, furnishings and residual personal property located therein. Second, Judge Coffey and Mr. Coffey transferred to the Trust two pieces of real property that they jointly owned as husband and wife. The first, a parcel of property located on Washington Road in Rye (Washington Road Property), had been recently acquired by the Coffeys from Judge Coffey's parents and currently serves as their permanent residence. The second, a parcel of property located on Pioneer Road in Rye (Pioneer Road Property), had been the Coffeys' permanent residence until they purchased the Washington Road Property. Finally, the Coffeys transferred to the Trust "[a]ll household contents, furniture, furnishings, items of personal ornament and residual personal property and effects" located at the Pioneer Road Property and the Washington Road Property, as well as $500 in cash.
On December 1, 2003, while the PCC case against Mr. Coffey was still pending, the Coffeys executed three deeds transferring the real estate to the Trust. As later acknowledged by Judge Coffey, the tax stamps affixed to the deeds indicate that at least two of these properties were transferred without consideration.
On December 5, 2003, a few days after the Coffeys conveyed all of their real property into the Trust, the PCC notified Mr. Coffey of its decision that he had committed professional misconduct and that it would be filing a petition with this court recommending a two-year suspension. On December 29, 2003, after denying Mr. Coffey's motion for reconsideration, the PCC filed its petition with this court, recommending suspension and seeking an order requiring Mr. Coffey to reimburse it for all expenses incurred investigating and prosecuting the case. See Sup.Ct. R. 37(16) (amended 2003) . Judge Coffey was aware of this petition and later acknowledged that she is aware of the rules granting the PCC authority to petition this court for recovery of its costs. On December 31, 2003, only two days after the PCC filed its petition requesting recovery of its costs, the Coffeys recorded the three deeds conveying all of their real estate into the Trust in the Rockingham County Registry of Deeds.
On May 24, 2004, approximately five months after the PCC ruled against Mr. Coffey and indicated that it would seek reimbursement for costs, Judge Coffey, as trustee, sold the Pioneer Road property for over $400,000. Although the record fails to indicate how much of that amount was profit, Judge Coffey stated that a portion of the proceeds went towards satisfaction of a mortgage on the property, repayment of an equity loan, and satisfaction of some credit card debt. Moreover, she stated that $100,000 was transferred to her parents as consideration-in conjunction with a $300,000 mortgage-for their earlier acquisition of the Washington Road property. More specifically, Judge Coffey testified that she and Mr. Coffey had "had [the Pioneer Road property] on and off the market for a little while," and that her "father didn't want to continue carrying the cost of the [Washington Road property] while [the Coffeys] waited for [the Pioneer Road property] to sell." She explained that they, therefore, agreed at some point prior to the creation of the Trust, that she and Mr. Coffey would take "the [Washington Road property] from [her parents] first," execute a $300,000 mortgage in her parents' favor, and pay them $100,000 when the property sold.
As to the remainder of the proceeds from the sale of the Pioneer Road property, Judge Coffey stated that they "put it all into [the] Washington Road" property. In particular, she stated that they "had obligations coming up for contractors for new systems." According to Judge Coffey, all of the money expended on the Washington Road property was required for necessary repairs, including "a new roof, new siding, new plumbing, [and a] new heating system." Furthermore, she asserted that they "didn't put the [repairs] in frivolously" and that they "put them in because [they] needed them." The record demonstrates that at least a portion of the expenses for these "needed repairs" arose from construction of a two-car garage and additional office space that the Coffeys had contracted to put on the house. As discussed more fully below, the record lacks further evidence, such as receipts or contracts, regarding the necessity of these repairs....
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