Basbanes' Case
1996 N.H. LEXIS 35, 141 N.H. 1, 676 A.2d 93 (1996)
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Rule of Law:
A lawyer has an affirmative duty of candor to the tribunal and violates the rules of professional conduct by knowingly making false statements or creating a misleading impression to a court, such as by implying a significant liability remains outstanding when it has been settled. A continuing course of such dishonest conduct warrants disbarment, even in the presence of mitigating factors like a prior clean record.
Facts:
- In 1992, George J. Basbanes began representing Nathaniel Tuttle in a divorce case where the value of Tuttle's business was a central issue.
- Tuttle's business faced a large, outstanding civil judgment from a lawsuit filed by Brian Downing, which could reduce the value of the marital property.
- Basbanes helped negotiate a settlement of the Downing judgment that would release Tuttle from any personal liability.
- On February 17, 1993, Tuttle signed a general release prepared by the opposing party's insurer to finalize the settlement, which Basbanes then mailed to Downing's lawyer.
- In a divorce hearing on February 18, 1993, Basbanes cross-examined Tuttle's wife by asking if she would be liable for the Downing judgment, implying it was still a live issue.
- During a hearing on April 1, 1993, Basbanes allowed his client, Tuttle, to testify that he could not get credit due to the lawsuit, making no effort to correct the impression that the case was still active.
- At a final hearing on June 2, 1993, after referencing the judgment again, the marital master directly asked Basbanes if the judgment had been resolved.
- Basbanes responded to the marital master's direct question by stating he hadn't 'heard anything about it. Sleeping dogs are lying.'
Procedural Posture:
- Opposing counsel in a divorce proceeding reported George J. Basbanes's conduct to the Supreme Court Committee on Professional Conduct.
- The committee held a hearing, found Basbanes had violated multiple Rules of Professional Conduct, and recommended his disbarment.
- The Supreme Court of New Hampshire appointed a Judicial Referee to conduct a de novo hearing on the committee’s petition.
- The referee also found, by clear and convincing evidence, that Basbanes had violated the rules but recommended a two-year suspension as the sanction.
- Both the committee (objecting to the suspension) and Basbanes (objecting to the findings) appealed the referee’s report to the Supreme Court of New Hampshire.
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Issue:
Does a lawyer violate the professional rules of conduct requiring candor to the tribunal and prohibiting dishonesty when he repeatedly implies in court that his client's significant civil judgment is an active liability, when he knows the judgment is nearly or fully settled, and directly misrepresents the status of the judgment when questioned by the court?
Opinions:
Majority - Thayer, J.
Yes. A lawyer's repeated implication that a significant liability is outstanding, when the lawyer knows it is nearly or fully settled, violates the professional rules of conduct requiring candor and prohibiting dishonesty. Basbanes knowingly made false statements and offered false evidence to the marital master in violation of Rules 3.3(a)(1) and 3.3(a)(3). The most egregious instance was his statement on June 2, 1993, that 'sleeping dogs are lying,' which the court found to be a direct lie intended to deceive the master about the value of the marital assets. The court rejected Basbanes's claims that he believed the settlement was incomplete, describing his explanations as 'hogwash.' By violating Rule 3.3, Basbanes also violated Rule 8.4(a), and his intentional misrepresentations designed to induce the master to act in reliance upon them constituted a violation of Rule 8.4(c). The court held that the proper sanction for this sustained course of dishonesty was disbarment, reasoning that honesty is foundational to the legal profession and that the presented mitigating factors—such as a long career without prior discipline—were insufficient to justify a lesser sanction.
Analysis:
This case establishes a stringent standard for a lawyer's duty of candor, making clear that misleading a court by implication, omission, or half-truth is as serious a violation as an explicit falsehood. The court's decision to disbar an attorney with a 28-year clean record for this conduct sends a powerful message about the gravity of dishonesty before a tribunal. The ruling diminishes the weight of mitigating factors like a clean record or good reputation when confronted with a prolonged, deliberate course of deception. This precedent reinforces that the integrity of the judicial process depends on the absolute honesty of its officers, and courts will enforce this duty with the most severe sanctions.
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