By: Rich Bergeron
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| Judge Lawrence A. MacLeod, Jr. |
A scheduled hour-and-a-half hearing in Grafton Superior Court on Monday, September 30th, 2024 featured two widely different perspectives of the Haverhill vs. Donahue, Tucker & Ciandella (DTC) controversy. The legal drama playing itself out on the superior court stage in New Hampshire right now could determine that it may indeed be the ultimate right of a conflicted select board to hire a conflicted attorney brought in on a conflicted referral by Woodsville's current District Administrator Kevin Shelton. The conflict trifecta might fly moving forward in this state if you could possibly believe the arguments made by Attorney Tara Lynch, representing DTC.
Judge Lawrence A. MacLeod Jr. did not seem very enthused by the literal weight of the town's case against DTC. He held up the stack of filings early in the hearing and talked about never seeing such a lengthy statement of material facts, but he did not really admonish any party for it or tip his hand to where he was leaning on the case so far.
Prior to any argument on the motion, the matter of an affidavit from Former DRA Revenue Counsel Peter Roth took center stage. Attorney Lynch, on behalf of DTC, argued the document should not be allowed in the record. At the same time, the lack of that affidavit is also one of the central themes of one of DTC's previous challenges to the town's facts. So they point at the town and say you can't prove it, you don't have testimony to back it up and then complain about a closed record when the town actually provides that testimony. It's entirely disingenuous and petty.
Lynch's fickle objection fell on deaf ears as the judge never ruled on it and decided instead to carry on with the hearing and announce he'd decide the affidavit's admissibility later. This bit of lame legal work set the stage for Lynch's entire defensive litigation strategy, which is best described as "the poor little lamb approach." This set the tone for the defendants in the case to classify themselves as the real victims in the matter who deserved relief from the court.
Not knowing his opening would be a perfect punchline for the moment, Town Counsel Derek Kline began by explaining to the judge that this was really "a simple case." The judge grumbled out loud about how simple it was and referred to the heavy record again. Kline then proceeded to kneecap DTC's case entirely with one core principle: The Public Interest.
The town's representative first outlined crucial points of law working in the town's favor that would moot the rest of the case entirely. He detailed precedent cases that prove in any public interest situation, a conflict cannot even be legally waived. Remember, Board Member Kevin Knapp specifically stated in his deposition testimony that the board that attempted to hire DTC and Hawkins never considered trying to find an attorney with no conflict.
The "appearance of impropriety" in this unique scenario can plainly be identified on both sides of an illegitimate attorney/client relationship between a conflicted Haverhill Select Board and a bitterly conflicted attorney in the lead role of duplicitous and ineffective legal representation.
The Haverhill Town Counsel's characterization of that ever so rocky relationship between DTC's Hawkins and this conflicted board hit home and landed hard on the judge, who seemed entertained and intrigued all at once. Kline compared Hawkins working for Haverhill to a Hatfield going to work for a McCoy and a lawyer from the South jumping ship to go work with the North in the Civil War days.
Letting Former Woodsville Lawyer Christopher Hawkins lead the charge for Haverhill in a case directly stemming from the Haverhill to Woodsville funding feud is just a complete fraud on the court and the community. The town made their case there and really set the tone for the rest of the hearing.
The "disinterested lawyer" standard consumed much of the town counsel's early legal arguments. Extensive case law supports the idea that engaging in a conflict of interest nullifies the work of any law firm that attempts to do so and gets caught. If a disinterested lawyer analyzing the facts of a case would clearly call this a conflict of interest, it most definitely was. That is the law of the land, plain and simple.
Kline did a masterful job of painting the big picture and reinforcing the factual framework to show beyond the shadow of any doubt that a conflict of interest waiver was never initiated properly by a valid public vote of the conflicted Haverhill Board of Selectmen. He turned the judge's concern about the length of the pleadings right around on MacLeod by continuously harping on "all the facts you held up" supporting his case and showing his good faith efforts on behalf of Haverhill.
It is important to note here that Judge MacLeod is very familiar with the "appearance of impropriety" standard since he's recused himself from high profile cases in the past. (see also: Judge Recuses Himself From Ed Funding Case - NH Journal). Judge MacLeod recused himself for appearance issues only, while DTC's behavior in the current case shows a clear motivation to minimize actual conflict. The burden of proof to show an appearance of impropriety is well met here since there was actual severe impropriety going on behind the scenes between the conflicted board and DTC.
Kline repeatedly pointed to an email in which Hawkins expressed to the Woodsville Administrator that he hoped Former Town manager Codling was "burned" and Woodsville got "a lot of money" in the lawsuit he once pursued on behalf of the district. Town Counsel also tore apart the affidavit provided by Hawkins and showed it was more favorable to the town's case since it reveals that in house counsel at DTC agreed a waiver of conflict was required.
Kline showed poignantly that there was never a valid conflict waiver in place to coronate the arrangement as official and valid. Even if the public interest being triggered was not a factor the judge could consider, the Town proved that no valid quorum vote of the board ever took place to waive DTC's conflict. No valid quorum vote allowed Former Board Vice Chairman Steve Robbins to sign hiring and conflict waiving documentation for DTC on behalf of the entire board. No valid hiring vote ever took place despite DTC defending itself by insisting the board members ratified the retention of DTC at the direction of Codling, so their move had to be correct.
This is just baffling incompetence on the part of either Lynch or her co-counsel James Soucy to even argue this point in writing or out loud at a public hearing. First of all, if you're jumping up and down and pointing at Town Manager Codling having the correct advice that the board followed, you're hurting your other argument that the DTC attorneys were justified to lock her out of the rest of the discussions with the town's board of selectmen. Lynch harping on this point was simply pathetic, because it proves this iteration of the board fully relied on and trusted the Town Manager's guidance at the same time they vociferously insisted she shouldn't take part in the legal process with DTC.
However, a firm or attorney cannot be officially hired by a municipality in a conflict scenario before the waiver is produced. It just defies plain, basic logic to allow that in any scenario. DTC attorneys simply lied about the status of the conflict waiver to fool Codling into believing their representation was kosher and above board. Still, Codling and her colleague Jennifer Boucher pressured DTC attorneys for the paperwork to sign and were not dealt with responsibly and honestly by multiple DTC attorneys.
Even if it could somehow still be considered iffy to believe a disinterested lawyer would disqualify DTC's demand for payment here, Town Counsel briefed the rest of the concerns regarding the public interest very well. In some case law, the plain rule is that conflicts cannot ever be consented to at all in a matter of the public trust. The issue of this being a municipality operating under a Town Manager political design also won the day for Kline. Rules that would seem to easily apply to a private party standard could not meet the much higher standards required of a legitimate municipal attorney/client relationship.
Much of this story revolves around heinous legal behavior that even first year law students would know to avoid, especially in a case where DTC self admits to having a "potential conflict" that required a waiver in the first place. DTC attorneys who created this mess and their current counsel knew all along that the lack of a public vote to waive conflict could sink their legal battleship. They persisted anyway, hoping to take the town to deep financial waters where the big insurance firm defending DTC could drown them in costs. These attorneys used code words like "polled" to insinuate some kind of formal full board vote where no such valid vote happened to waive conflict at any public proceeding.
Lynch continued to insist that the board could act "at any time" to revoke Codling's authority over all Woodsville legal matters. However, the town's standard operating procedures do not support that statement. For the court to agree with Lynch, it would have to surrender forever to the concept that shadow governments can and will exist in the "Live Free or Die" state in perpetuity. It is hard to imagine what she means by "act" in this situation if she's not referring to a formal open meeting vote covered by NH RSA 91A.
On top of these audacious claims and dangerous attempts to set unsupported precedent, Lynch never produced actual evidence or any abundance of support cases to bolster her approach. There are no concrete records of the allegedly valuable legal consultations DTC claims they provided the corrupted board members. Just a bunch of billing entries. Crucial "action" was allegedly taken to waive DTC's conflict at a non-meeting where no public vote occurred, not even a non-public session vote. It was a private meeting that was not recorded. No minutes of this meeting exist.
This condition violates RSA 91A and nullifies any purported "action" taken by any governing body of any NH municipality at such an informal meeting. Much has been made about the DTC firm and their crooked attorneys working for "the town," and yet, Lynch certainly made the case at this hearing that DTC was working for the board. Only one partisan wing of the town's administration directed them in their alleged "work" for the entire town.
The Town of Haverhill had a town manager and her assistant in place as a check and balance to any situation where the board went "rogue." That was sidestepped by way of DTC's purposeful misconduct and inherent trust in the guidance and direction of such a conflicted board. Attorney Hawkins willingly and repeatedly let his own personal feelings toward the situation drive his decision-making process. Attorney Lynch insists he was being "overly cautious" to even seek a waiver in this scenario. The evidence shows the conflict drove Hawkins to actually petition for "origination" credit on the case. This case was only brought to him because of the history he had with Woodsville. Current Board Member Kevin Knapp admitted in sworn open testimony at his deposition that he never considered looking for an attorney without a conflict. Hawkins always had a financial motivation to minimize the conflict and get it signed off as just an appearance of one.
Attorney Lynch and her colleague Jim Soucy at the same time didn't bother to spend the 30 to 40 minutes of their time it would have taken to review official meeting minutes from the town of Haverhill that would have shown them no actual waiver vote occurred at a public hearing. Soucy and his colleague Lynch cannot escape from under the storm of legal controversy coming their way. The fact that both of these liability attorneys allowed Hawkins' clearly opinionated statements of alleged fact into a sworn affidavit is absolutely mind boggling.
Hawkins never met Attorney Roth, never spoke to Roth, and never really had extensive communications in writing with Roth. Hawkins just clung to one single email to justify that his firm--and his firm only--was the catalyst to getting the tax rate set in town. It was a fairly generic email informing DTC attorneys that the rates would be set. It did not assign credit to anyone for the resolution of the controversy at the time.
A subsequent letter sent by Roth also played a starring role at the hearing. Kline insisted the real significance of the Roth letter (which Roth's own new affidavit verifies), is that Roth outlines the behavior of DTC on the tax rate issue was the worst he's witnessed in his whole three-decade history of practicing law. That's not just calling out minor misconduct. That's red flagging some very concerning patterns of legal abuse.
Hawkins also uses his own ridiculously self-serving affidavit to insist that Executive Councilor Cinde Warmington could not have had any material impact on the DRA setting the tax rate issue because she didn't face as much risk as DTC did. Way to fire a shotgun at both your feet, Hawkins. This is a guy who told the board members in writing that Warmington "moved Heaven and Earth" to resolve the tax rate issue and encouraged them to thank her.
The Hawkins conflict is so severe that his sworn statement is chock full of delusional thoughts he hopes to confirm as undeniable facts. This kind of legal circus should not be allowed to play out much longer with DTC's current counsel putting their wholehearted stamp of approval on facts not in evidence and unproven allegations. Lynch even tried to score points with the judge by pointing out Hawkins had a post on a state ethics board and held government positions of his own in Newmarket, New Hampshire.
These facts all actually shed a seriously bad light on DTC's case, and there's no other way to honestly describe them. Those skills and qualifications only show Hawkins should have known better than to let a supposedly legitimate municipal client operate under such secretive conditions, making key decisions away from the public eye and the Town Manager in un-noticed, unrecorded non-meetings.
It is hard to pick a point of law or fact from Lynch's argument and conclude that her sales pitch proves we need a trial here. She actually encouraged the judge to only look at certain exhibits and elements of her own client's statement of material facts to decide the case. She literally told him to "cut the fat." Her theory is that we didn't need all these facts and exhibits and sworn statements to decide the case. It follows a pattern of the firm's current counsel continually wanting to put the entire case out of context, on purpose, by design. "We're the poor little lamb here, your honor" was the gist of Lynch's whole case to get the judge to absolve DTC of all of the town's claims alleged against them.
Lynch repeatedly attempted to hang her hopes on the "ratification" vote by the board attempting to legally hire DTC, which the Town Manager advised them to carry out. However, that vote is meaningless without a corresponding or prior vote of a quorum of the board at a public meeting that never happened. Codling had been lied to about DTC's conflict already being waived. The supposed conflict discussion and supposedly valid decision to waive conflict allegedly took place at an un-noticed, un-recorded, non-public non-meeting. There was not even a non-public session vote at a public meeting here. It is the very definition of a shadow government if that "legal consultation" session with a town board could be allowed to include a formal decision and action by the entire town to waive the conflict or "potential conflict" here.
This is deception 101 bullshit by Lynch. If you want the judge to be distracted away from the facts, you re-frame the facts to sway in your direction. You say one thing happened that makes you look good but forget to mention another thing happened 24 hours later that contradicted the first thing that happened. It would be comical if it wasn't creating such a tsunami of costs just to get here on the brink of potential accountability for a rogue select board working with a severely conflicted attorney.
The nerve of DTC's current counsel to ask for attorneys fees under the circumstances is another dog and pony show being played on the court. Each new document DTC's counsel produces for this case creates a new current of evidence proving that these attorneys have not adequately researched the facts of this case or the presiding legal background regarding conflicts on both sides of a municipal attorney/client relationship. The latest attorneys have simply done what their own clients did so dutifully for the conflicted Haverhill board: listened to each explanation and direction their clients gave them and took it as gospel.
All attorneys involved in trying to defend such piss-poor behavior by purportedly experienced and ethical municipal litigants put their own public stamp of approval on the kind of outlandish and obvious misconduct that occurred in this case. It's a systemic issue illustrated here where some lawyers seem all too intent to protect the entire greater community of attorneys by trying to make the worst rotten apples appear ripe and delicious.
As the saying goes, one rotten apple can spoil the whole barrel. The spoilage of the entire class of attorneys here is self-inflicted by these overprotective and misguided practitioners who seem to think the profession is better off with all the bad apples staying put. Therefore, these bad actors in the legal system get a free pass to spread the pestilence of severe misconduct throughout the ranks of their colleagues. Misconduct then becomes normalized and sometimes even encouraged. This is why society as a whole tends to harbor an incredible lack of trust in the average attorney working within such a poisoned system.
DTC's defense is meritless, and it is wholly obvious the firm is clinging to lies to further their arguments. Worse, they are willfully embarking on this legal circus of a strategy before a court of law that is supposed to frown upon such perjurious behavior. Had DTC's current counsel researched the facts and background adequately, they could have detected the lies their clients told them. They never did. Lawyers are simply not supposed to believe everything their clients tell them and not bound to follow every instruction their clients give with no concern for ethics or efficacy.
If on occasion a client tells a lawyer to do something outside the scope of responsible representation under the rules and the law, an objective lawyer should be willing to provide expert guidance and advice from a legal perspective so the client can avoid any impropriety. Here, DTC attorneys willfully pursued impropriety as a legal strategy: up to and including trying to threaten a public agency (the DRA) with a wide variety of plainly frivolous lawsuits it never even had the authority to pursue or any hopes to get the town to pay for if the DRA ever called their bluff. It's pretty irresponsibly bold behavior under the circumstances. DTC plainly admits they were going out of their way to hide much of their supposed "work" for the town from both the town manager and her assistant. This was at the direction of their clients. Yet, rather than showing beyond the shadow of any doubt that those directions were legally defensible, Lynch harped on the fact that her clients followed those directions.
Lynch preached her case for the judge, as if this was some kind of exemplary legal conduct to believe the bullshit any client tells you and not independently investigate any claims made to you by said client. She even referred to Kline at one point as "my brother." Her sermon even made the bailiffs bored. Her words were hollow and her tone was desperate, almost asking for mercy instead of demanding justice. She twisted the facts like a clown at a child's birthday party making balloon animals.
"Don't worry about the truth, your honor, here's a giraffe I made you," could have been Attorney Lynch's closing line at the hearing.
Tellingly, the only true fan of the Lynch Legal Circus in attendance on Monday was Paul Kidder. He happens to be a Woodsville commissioner. Notably absent were Attorney Christopher Hawkins, Attorney Eric Maher and Attorney Christopher Boldt. There was actually no representative of DTC on site for the hearing other than Lynch. Lynch's own colleague Attorney James L. Soucy didn't even accompany her to the courtroom. The facts didn't show up for her either.
Attorney Lynch also insisted that the vote to give Codling authority over all legal matters regarding Woodsville did not cover the DRA tax rate issue. She neglected to confront the fact that Haverhill Select Board Member Kevin Knapp attempted to modify or revoke the town manager's authority and failed. She insisted the town was arguing that such given authority cannot be revoked. On the contrary, Kline argued effectively that state law requires a vote to give and take away authority assigned to a town manager in such scenarios. While Lynch keeps insisting the board could act "at any time" to revoke authority, Kline demonstrated beyond the shadow of any doubt that any revocation or modification of that authority conferred by vote would have to be revoked by vote. Also key here is that there is no evidence produced by DTC's current counsel to show that the board ever informed Codling her authority had been revoked. There is no public record of any communications sent to Codling by anyone telling her she was no longer handling all legal matters related to Woodsville.
The other side of the courtroom at the summary judgment hearing featured a full assortment of concerned Haverhill citizens, including multiple current town select board members.
DTC attorneys were so intent to take credit for the resolution of the tax rate issue, they invented their own alternative facts to prove they somehow actually deserved it. Former US Secretary of State George C. Marshall once said, "There's no limit to the good you can do if you don't care who gets the credit." The Roth affidavit closes the book on who deserved credit, the firm that never jumped up and down to demand it.
The judge only asked one ominous question toward the end of the hearing and addressed it to Lynch: "Are you agreeing that there was no public session proving the contract with your client?"
Lynch danced around the question, trying to get the judge to focus on a supposed "ratification" vote that did not ever suggest any conflict waiver vote carried at the same public hearing.
Lynch made her only effective points when discussing arbitration, which she insisted DTC was not eligible for under the circumstances. She also proposed the judge could potentially send the parties to arbitration if he decided that would be appropriate.
One remark stood out from Lynch's disjointed argument where she described attorneys having to "jump through a series of unknown, hidden hoops" to be hired. Those hoops are called laws and rules, dear. It is your job as an attorney to know them, follow them, and encourage your clients to follow them. Instead, DTC let the board tell them what to do and how to do it, and they still vociferously argue that this was proper execution of their legal duties. The attorneys are supposed to advise their clients. Here the client advised the attorneys in the original situation and the one unfolding now in court. It's as if the misconduct here is contagious and passed directly from DTC to Lynch's liability law outfit. Lynch went out of her way to prove undoubtedly that the Board of Selectmen was the true client, basically admitting the client was never the entire town. The case of DTC continuously and brazenly continues to contradict itself. Their own evidence and testimony is fatal to their case.
Kline correctly focused on "the integrity of the people's government" in his compelling argument. Do we want open, transparent and citizen-run government in New Hampshire? Or, do we want all boards of selectmen in this state to be able to operate shadow governments as DTC attorneys seem to be lobbying for here? Do we want to repeal and rescind RSA 91A in this state or continue to follow it closely and carefully?
The decision comes down to who brings the preponderance of evidence to the table to support their position. The law and the facts weigh most in favor with the Town's position here. DTC is defending bad behavior and tries to make the argument that DTC attorneys committing misconduct was actually a great example of decent legal work. Lynch even referred to the DRA and Attorney Roth as "an opponent" and an "adversary" at the September 30th hearing. The correct tone to take with the DRA was not aggressive, adversarial and obnoxious. It was ultimately cool and calculated cooperation that fixed the tax rate issue. The DRA is a state agency with a wide scope of authority. It should not be any municipality's "opponent" or "adversary" under ideal circumstances. DTC attorneys created a heightened level of tension between the town of Haverhill and the DRA and leveled baseless threats at a state agency's representatives, allegedly with the blessing of the town as a whole. There's no better way for an attorney to sow seeds of distrust between the town and the DRA.
DTC was out of bounds at all times in allowing Attorney Hawkins to take such a central role in this case. The most prudent thing for him to do would have been to let the other attorneys at his firm handle the issue if he wanted to keep it in house. Rather than have no involvement, Hawkins billed heavily for his "work." He lobbied his colleagues for "origination credit" on the overall billing. The firm had the invoices sent to the personal home of Steve Robbins, a heavily conflicted select board member. The dominoes are all lined up to fall against DTC, and their current attorneys aren't looking like the sharpest tools in the legal shed. It is a constant cycle of defending lies and misinterpretations of the facts and the law to try to desperately support a broken case. This pattern runs through both DTC's allegedly legitimate attorney/client relationship with the conflicted board and Soucy and Lynch's defense of DTC's worst transgressions.
Former Haverhill Select Board Member Howard Hatch was in attendance for the hearing, a man who spent decades on the town's budget committee and watched the Haverhill vs. Woodsville funding feud develop over the last 40 years. He felt the town did "pretty well" at the hearing. He also recalled the constant struggle to get answers and accounting from Woodsville when he served in town leadership. "There was no transparency," he said. "We'd ask about costs and it was always, 'None of your business.'"
Now the latest episode of a legal soap opera and escalating funding feud between these two municipalities is the court's business. A bloodless coup is either deemed cool or no bueno by the state's powers that be. Judge MacLeod may have a lot of facts to review, but they all align with the true context of what happened in this case. It is secrecy and deception versus open meeting honesty and transparency here. What kind of design do we want our governments observing?
It is not so overly complicated when you look at it. Going against attorneys is always tough to do in a court of law. The town is coming in with facts upon facts, the timeline of events all lined up properly, and the law squarely in their corner. It takes a heavy burden to put a scarlet letter on a lawyer in today's legal system and make it stick. The country club mentality of the profession often encourages protecting and insulating the bad actors among bar card carrying members instead of exacting accountability from them. Many lawyers would not even entertain such a case due to the "friendly fire" implications. If the judge cares as much about integrity as the town counsel does, there's hope for New Hampshire's future.
Meanwhile, DTC's defense is continuing bad behavior to attempt to convince the court to somehow see DTC's interaction with the board as a legitimate process by which a town's select board can legally hire attorneys and law firms for the entire town in a town manager form of government. It's a comedy of errors and a tragedy of misunderstanding all around.
There is a new culture of lawyers who seem to believe that the client's story is sacred and should not be questioned, double-checked or verified through any earnest effort. In other words, they want law firms to be able to assume they are hired from a phone call or an email about a supposedly valid open meeting vote by a town board to hire them. The record of such a vote not existing shouldn't matter if the communication is there, essentially. DTC's defensive approach contends the law protects them from failing to complete their own due diligence fact checking because they dutifully took their client's word for everything.
DTC's counsel stubbornly continues to stand by wholly indefensible "legal" concepts and fact patterns that only make their clients' conduct look more suspect rather than less so. It is hard to believe any judge would continue this terrible cycle and consider DTC's case arguments as gospel. Justice is served only if open meeting rules really matter and are taken seriously by New Hampshire's state courts. New Hampshire's whole political and legal landscape could change depending on the outcome of this case.
Please take some time to listen to the hearing and let us know your thoughts in the comment section.
PLEASE READ AND SHARE ALL THE ARTICLES IN THE HAVERHILL/WOODSVILLE SERIES:
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