State v. Merski

• Decision Date: 14 October 1981
• Docket Number: No. 80-341,80-341
• Citation: 121 N.H. 901,437 A.2d 710
• Parties: The STATE of New Hampshire v. Leonard J. MERSKI.
• Court: New Hampshire Supreme Court

Page 710

437 A.2d 710

121 N.H. 901

The STATE of New Hampshire v. Leonard J. MERSKI.

No. 80-341.

Supreme Court of New Hampshire.

Oct. 14, 1981.

Gregory H. Smith, Atty. Gen. (Andrew R. Grainger and Michael A. Pignatelli, Asst. Attys. Gen., on the brief), for the State.

Sheehan, Phinney, Bass & Green P.A., Manchester (W. Michael Dunn and Stephen E. Weyl, Manchester, on the brief), for defendant.

PER CURIAM.

This is an interlocutory transfer by the Superior Court of questions posed in several motions filed by the defendant.

The first motions seek to suppress evidence and testimony as being tainted by an alleged breach of our Rule 37(18), which requires that all records and proceedings involving allegations of misconduct by an attorney remain confidential. We hold that a breach of confidentiality, if any, by this court's Professional Conduct Committee (Committee) does not render the proposed evidence and testimony inadmissible in a subsequent prosecution of the defendant for theft under RSA ch. 637.

The other motions filed by the defendant seek to quash his indictment on the basis that it is insufficient and unconstitutionally vague. We hold the indictment to be sufficient.

The defendant Merski, an attorney whose affairs were being inquired into by the Committee, resigned with prejudice from the bar under our Rule 37(10). On August 1, 1978, by order of this court, the resignation was accepted, and the Committee was ordered to obtain the defendant's files and to supervise the winding up of his law practice. See Supreme Court Rule 37(14)(h), 37(15)(a).

On August 4, 1978, a hearing on a petition for an accounting of the Wells estate, which the defendant represented, was continued by the probate court because Merski had resigned from the bar and was not present in court. This action was reported to both the chairman of the Committee, Mr. Raulerson, and to its administrator, Mr. Miller. At that time, no committee member knew the specific facts regarding the Wells estate or that irregularities might have occurred in the handling of estate funds. Mr. Miller, who since the August 1 court order had attempted to contact the defendant to make arrangements to take possession of all files, was requested by Mr. Raulerson to obtain the Wells file and to deliver it to whoever would assume representation of the estate. That same day, Attorney Bruce E. Viles requested the file, and Mr. Miller told her that it would be delivered to her upon production of written authorization from the executrix of the estate.

On August 7, 1978, Mr. Merski's secretary turned over the Wells file to Mr. Miller, who requested it pursuant to this court's order. Without examining it, he placed it in the trunk of his car. On August 10, 1978, Merski wrote to Miller indicating that he had spoken to Mrs. Viles, that she would have an authorization from her client to pick up the file, and that he, Merski, had arranged to meet with her and provide her with whatever assistance she might need. On August 14, 1978, Miller delivered the file to Viles, who expressed concern about the extent of her responsibility to anyone beyond her client.

Mr. Miller, by letter to Mrs. Viles dated August 17, 1978, noted that the estate was of "continuing interest" to the Committee and that there were "concerns ... as to funds." He instructed her to bring to the Committee's attention "any indication of defalcation" and cited DR 1-103(A) and (B) of the Code of Professional Responsibility (Disclosure of Information to Authorities).

On October 20, 1978, Mrs. Viles wrote to Mr. Miller and reported an alleged misappropriation by the defendant of nearly $6,000 of estate funds. Mr. Raulerson was notified, and he, in accordance with the policy of the Committee, "took no action in a case involving a charge of commission of a crime until after the prosecutorial authority ha(d) investigated it and, if appropriate, prosecuted." However, on October 31, 1978, he wrote the attorney general stating that it had come to the Committee's attention that Mr. Merski may have committed forgery and embezzlement in handling funds of the Wells estate. He referred the attorney general to Mrs. Viles for further information.

When an investigator for the attorney general's office sought information from the Committee, Mr. Miller refused to supply any on grounds of confidentiality under our Rule 37(18), which reads in pertinent part as follows:

"(18) Confidentiality.

(a) Proceedings Alleging Misconduct. All records and proceedings involving allegations of misconduct by an attorney shall be confidential and shall not be disclosed ....

....

(d) Disclosure to Authorized Agency. The committee may disclose relevant information that is otherwise confidential to agencies authorized to investigate the qualifications of judicial candidates, to agencies investigating qualifications for admission to practice, and to law enforcement agencies investigating qualifications for government employment. If the committee decides to answer a request for relevant information, and if the attorney/respondent who is the subject of the request has not signed a waiver permitting the requesting agency to obtain confidential information, the committee shall send to the attorney/respondent at his last known address, by certified mail, a notice that information has been requested and by whom, together with a copy of the information that the committee proposes to release to the requesting agency. The committee shall inform the subject attorney/respondent that the information shall be released at the end of ten (10) days from the date of mailing the notice unless the attorney/respondent obtains a court order restraining such disclosure.

....

(f) Duty of Participants. All participants in the proceedings shall conduct themselves so as to maintain the confidentiality mandated by this rule. Violation of this duty shall constitute an act of contempt of the supreme court."

On January 2, 1979, a grand jury indicted the defendant for theft. RSA ch. 637. The defendant filed several motions to quash the indictment and to suppress evidence and testimony. A hearing on the motions was held on April 14 and 15, 1980, and the trial court transferred to this court the following:

"Questions raised by the Motion to Suppress.

I. Did the letter from Mr. Raulerson to the Attorney General dated October 31, 1978 contain a disclosure of information about a record or proceeding forbidden by Supreme Court Rule 37(18)?

II. If the answer to question I. is yes, is the evidence obtained by the State as a result of that disclosure subject to a motion to suppress and does the defendant have standing to make such a motion?

Questions raised by the Motion to Quash.

I. Is the indictment charging theft by obtaining unauthorized control with a purpose to deprive defective for omitting a reference to one of the alternative definitions of "purpose to deprive" contained in RSA 637:2, III?

II. If the answer to question I. is yes, may the defect be cured by the State's electing to rely on a given definition from among the statutory alternatives, as it has done in this case?"

On November 6, 1980, the State reindicted Merski, asserting that the new indictment was identical to the original one except that it cured an alleged defect of lack of specificity. Presumably because the case was on appeal before us, the State on November 7, 1980, filed a "motion to substitute" with this court. It recited that the granting of this motion would remove the issue of specificity from our consideration. On November 10, 1980, the defendant objected to the "motion to substitute" on the ground that he might be "prejudiced by never having an opportunity to object to the second indictment in the superior court."

On December 8, 1980, we denied, without prejudice, the State's "motion to substitute." We remanded the case for the limited purpose of consideration by the superior court of any similar motion the State might elect to file. On December 11, 1980, the State filed a "motion to substitute" in the superior court. No objections having been filed, Souter, J., on January 12, 1981, granted the State's motion. On January 23, 1981, the defendant filed with us a motion for limited remand for the purpose of allowing him to object to the State's "motion to substitute." We granted the defendant's motion on January 30, 1981, and remanded for a prompt consideration and ruling on the merits of the motion.

On February 5, 1981, the defendant filed in the superior court a motion to quash the indictment of November 6, 1980, and in opposition to the substitution of that indictment for the indictment dated January 2, 1979. The defendant claimed that the second indictment was insufficient, vague, and violative of his rights guaranteed under the United States and New Hampshire Constitutions.

On February 25, 1981, Souter, J., entered an order which in pertinent part reads as follows:

"Oral motion by defendant for reconsideration of order of January 12, 1981, granting State's motion to substitute is granted. Motion to quash is denied; order of January 12, 1981 granting State's motion to substitute is affirmed, each subject to exception. I find second indictment is in effect an amendment of the first.

THE CASE SHALL BE TRANSFERRED AGAIN TO THE SUPREME COURT."

We interpret this order to include resubmission to us of the questions originally posed.

We discuss first the defendant's claim that a breach of confidentiality by the Professional Conduct Committee renders the proposed evidence and testimony inadmissible in his prosecution. Technically, the disclosure by Mr. Raulerson may be interpreted to have been impermissible because it did not fall within the exceptions contained in Rule 37(18). We hold, however, that such a disclosure did not require the drastic remedy of suppression or exclusion.

We have long held that an attorney is "an officer of the court, and subject to the control of the court,...