Allegation
Judge Cassavechia’s review of the matter was exhaustive, as were those of the trial judges in each of the underlying cases which are the subject of this disciplinary process. I will not repeat the details of the findings except as necessary to support my decision as to the sanctions to be imposed. Reference should be made to those orders and the Disciplinary Recommendation for more detail. Judge Cassavechia based his recommendation for sanctions on an analysis of the standard utilized in attorney discipline matters.”
Response
(Click on Attachment for supporting document)
Judge Kelly’s assertion the matter was reviewed exhaustively by the Special Administrator is directly contradicted by the Special Administrator’s own statements contained in the Disciplinary Recommendation:
“. . . given precious judicial time and resources that would otherwise need to be expended, my review of other records was abbreviated and limited. As such, Judge Kelly and a review court should not view the discussion today as suggesting or reflecting that an exhaustive or even comprehensive inquiry was undertaken.” (Attachment 1);
“While in the interest of fairness these exhibits and testimony were allowed, counsel and Ms. Marino arguably strayed close to, if not into, the realm of re-litigating the findings of the Probate Division and Supreme Court. To the extent that any such evidence contradicted those findings, as opposed to properly addressing matters concerning sanctions, the undersigned gave that evidence little, if any, weight.” (Attachment 2); and
“As already mentioned, although only a rather cursory and limited review was conducted, and as such, the notes below should not be considered conclusive or exhaustive in scope.” (Attachment 3)
Judge Kelly’s further assertion these matters were exhaustively reviewed by the trial courts is refuted by a mere cursory review of the court summaries which reflect multiple instances of denials for court hearings, failure of notices to be provided to either me or counsel, hearings held without a petition, motion or objection before the court, allowance of hearsay testimony, violations of the basic rules of evidence and the repeated practice of fact finding and rulings without a hearing, testimony or evidence before the court.
With regard to the Special Administrator’s use of the attorney discipline process, until the recommendation was issued neither counsel nor I were made aware the standards for attorney discipline would be applied in this matter. (Attachment 4). Nor were we advised the possible sanctions would go far beyond Judge Kelly’s authority as administrative judge, to do more than remove my name from the list of professional guardians (Attachment 5).
Judge Kelly’s assertion review of these matters were analyzed by the Special Administrator using the standard in attorney discipline matters is directly contradicted by Supreme Court Rules establishing the standard in attorney discipline matters as “clear and convincing”. Sup. Ct. Admin. Rule 37:3(c)(2) pertaining to the standard of analysis in attorney discipline matters, states:
“After consideration of oral arguments, hearing panel reports, transcripts of hearings before hearing panels and memoranda, to determine whether there is clear and convincing evidence of violations of the rules of professional conduct.” (Attachment 6)
Judge Kelly’s directive contained in, Administrative Order 2015-14, establishing the disciplinary process (Attachment 7) specifically barred examination of any of the findings made by the trial courts, a limitation the NH Supreme Court specifically disallowed during the attorney discipline process, due to the significant liberties of a person’s livelihood and reputation being at stake. (Attachment 8)
As noted in the Disciplinary Recommendation, the Special Administrator, reiterated the limitations Judge Kelly’s directive imposed on the process (Attachments 9, 10 & 11), a limitation again reflected in the hearing transcript, when he interrupted my testimony to caution counsel his line of questioning seemed an attempt to relitigate the underlying matters (Attachment 2 footnote & 12)
Court documents and transcripts in the underlying matters, as well as the disciplinary proceedings, reflect barely a preponderance of the evidence standard was applied, and not the clear and convincing standard necessary to claim adhering to the standard or analysis used attorney disciplinary matters. Had either counsel or I been aware of the standards to be applied or the sanctions to be considered, we would have asked for the entire scope of the attorney discipline process, including the ability to refute prior findings by the trial court made with barely a preponderance of the evidence.
In addition to Judge Kelly’s erroneous assertions the Special Administrator and trial court reviews were exhaustive and comprehensive, it should also be noted there is no indication Judge Kelly himself reviewed any of these matters and at no point did he meet with me or counsel to discuss any matter. He declined a proposed Consent Decree to address his concerns (Attachment 13), as well as declined an opportunity to engage in mediation offered by the Supreme Court. (Attachment 14) Judge Kelly’s actions seems more an attempt to avoid either an exhaustive or comprehensive review of any matter.