In re Reiner

Decision Date06 May 2005
Docket NumberNo. LD–2005–001.,LD–2005–001.
Citation872 A.2d 1038,152 N.H. 163
CourtNew Hampshire Supreme Court
Parties In re REINER's Case.

Landya B. McCafferty, of Concord, by brief and orally, for the attorney discipline office.

Shaheen & Gordon, P.A., of Concord (Steven M. Gordon on the brief and orally), for the defendant.

DUGGAN, J.

This case arises out of the interim suspension of the respondent, Gary H. Reiner, from the practice of law. A Judicial Referee (Gray , J.) recommended that the suspension should not remain in effect. We remand to the referee for a new hearing.

The respondent, a member of both the New Hampshire and Maine bars, was indicted by a federal grand jury on several felony charges arising out of his alleged connection with prostitution and money laundering activities allegedly occurring at a health club in Kittery, Maine. On January 26, 2005, we received a copy of the indictment from the Attorney Discipline Office (ADO). On February 4, 2005, we suspended the respondent from the practice of law in New Hampshire pending further order of the court. Sup.Ct. R. 37(9)(i). In the same order, we stated that the respondent may show cause why the suspension should be lifted and why he should not be assessed all expenses that may be incurred in the investigation and prosecution of this matter.

On February 22, 2005, the respondent filed a response to the court's suspension order, challenging the suspension on three grounds: (1) the interim suspension without notice and a pre-suspension hearing violated due process; (2) Supreme Court Rule 37(9)(i) is unconstitutionally vague; and (3) the interim suspension constituted public condemnation in violation of his due process rights. We issued an order scheduling a hearing for March 9, 2005, on the matter. At the same time, we ordered the ADO to file a memorandum addressing the issues raised by the respondent and advising the court whether it believed that the respondent should remain suspended pending resolution of the criminal charges against him.

On March 9, 2005, oral argument was held before the court. Following argument, the matter was referred to the judicial referee to hold a hearing on the issue of whether the respondent's suspension should remain in effect pending resolution of the criminal charges. That hearing was held on March 21, 2005, and, on March 22, 2005, the referee recommended that the suspension should not remain in effect because the suspension was not necessary for the protection of the public or the preservation of the integrity of the legal profession.

After reviewing the report and recommendations of the referee as well as the transcript of the hearing, we concluded that briefing and further argument of this case was necessary. On April 20, 2005, oral argument was held on the issue of whether we should adopt the referee's recommendation.

We address each issue in turn.

I. Post-suspension hearing

First, the respondent argues that his suspension violated due process under the State and Federal Constitutions because he was not first afforded notice and a pre-suspension hearing. We first address the respondent's claim under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal opinions only for guidance. Id. at 232–33, 471 A.2d 347. We determine whether challenged procedures satisfied due process under a two-part test. Petition of Preisendorfer, 143 N.H. 50, 52, 719 A.2d 590 (1998). First, we must determine whether the challenged procedures concern a legally protected interest. Id. Second, we must determine whether the procedures afford the appropriate procedural safeguards. Id. Because there is no dispute that an attorney has a constitutionally protected interest in his license to practice law, see Appeal of Plantier, 126 N.H. 500, 507, 494 A.2d 270 (1985), we turn to the question of the appropriate procedural safeguards.

In this context, we address the respondent's challenge to the use of a post-suspension hearing for an interim suspension based solely upon an indictment. In analyzing what procedures are due in a particular case, we consider the following factors:

(1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Preisendorfer, 143 N.H. at 53, 719 A.2d 590 (quotation omitted).

The United States Supreme Court addressed a similar situation in FDIC v. Mallen, 486 U.S. 230, 240–41, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988). In Mallen , the FDIC temporarily suspended a bank official on the basis of a federal indictment without providing the bank official with a pre-suspension hearing. Id. The Court noted that "[a]n important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation." Id. at 240, 108 S.Ct. 1780. The Court concluded that "the postponement of the hearing [was] supported by such an interest" because prompt suspension of indicted bank officers is "necessary to protect the interests of depositors and to maintain public confidence in our banking institutions." Id. at 240–41, 108 S.Ct. 1780. The Court further concluded that because a grand jury had determined that there was probable cause to believe that the bank official had committed a felony, the "suspension was supported by findings that assure that the suspension was not baseless." Id. at 241, 108 S.Ct. 1780. Thus, a post-suspension hearing comported with due process in these circumstances. Id.

Here, the respondent's interest in his license to practice law is "without doubt an important interest that ought not be interrupted without substantial justification." Id. at 243, 108 S.Ct. 1780. Like Mallen , however, a post-suspension hearing is justified because prompt suspension of indicted attorneys is necessary in some instances to protect the public and preserve the integrity of the legal profession. See Sup.Ct. R. 37(9)(i), 37(16)(f). In addition, the suspension is supported by a grand jury indictment, thereby assuring that the suspension is not baseless. See Mallen, 486 U.S. at 241, 108 S.Ct. 1780. Accordingly, an immediate interim suspension followed by a post-suspension hearing for an attorney who has been indicted comports with due process.

The next question is whether the post-suspension procedures satisfied due process. In that context, the Court in Mallen considered the time delay of the hearing and decision because "there is a point at which an unjustified delay in completing a post-deprivation proceeding would become a constitutional violation." Id. at 242, 108 S.Ct. 1780 (quotation omitted).

In determining how long a delay is justified in affording a post-suspension hearing and decision, it is appropriate to examine the importance of the private interest and the harm to this interest occasioned by the delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken.

Id.

In Mallen , the statute required the FDIC to hold a hearing "within 30 days of a written request for an opportunity to appear before the agency to contest a suspension." Id. The statute further provided that a decision be issued within sixty days of the hearing. Id. "Thus, at maximum, the suspended officer receives a decision within 90 days of his or her request for a hearing." Id. In evaluating this time frame, the Court noted that Mallen had an important interest in his continued employment. Id. at 243, 108 S.Ct. 1780. Nonetheless, the Court balanced this interest against a suspended bank officer's interest in seeing that a decision is not made with excessive haste, the agency's ability to give greater weight to the public interest and the fact that, given the indictment, the suspension would not likely augment the injury to the officer's reputation. Id. at 243–44, 108 S.Ct. 1780. The Court concluded that a thirty-day delay of the hearing and a potential ninety-day delay of a decision did not violate due process. Id. at 245, 108 S.Ct. 1780.

Rule 37(9)(i) does not provide a procedural framework for a post-suspension hearing. We take this opportunity to interpret the rule to require a post-suspension hearing to occur promptly so as to comply with due process. See Matter of Kenney, 399 Mass. 431, 504 N.E.2d 652, 656 (1987) ; State v. Winslow, 134 N.H. 398, 400, 593 A.2d 238 (1991). Following an interim suspension order based upon an indictment, the suspended attorney may request a hearing. The hearing will be scheduled within thirty days and held before the court or before a referee, at the court's discretion. At the hearing, the ADO bears the burden of persuading the court that, by a preponderance of the evidence, suspension is necessary for the protection of the public and the preservation of the integrity of the legal profession. See Sup.Ct. R. 37(16)(f). The court will issue a decision regarding the suspension as soon as practicable after the hearing.

These procedures satisfy the due process requirements as stated in Mallen, 486 U.S. at 245, 108 S.Ct. 1780.

The Federal Constitution offers the respondent no greater due process rights than does the State Constitution under these circumstances. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ; Preisendorfer, 143 N.H. at 52, 719 A.2d 590. Therefore, we reach the same result under the Federal Constitution as we do under the State Constitution.

II. Standard

Second, the respondent argues that the standard for suspension under ...

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