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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Original
No. LD-95-009
BRUZGA'S CASE
May 11, 1998
Paul A. Maggiotto, of Concord, by brief and orally, for the committee on professional conduct.
McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Jack B. Middleton and Scott H. Harris on the brief, and Mr. Middleton orally), for the respondent.
BRODERICK, J. We have accepted several questions transferred without ruling by a Judicial Referee (Dunn, J.), requiring us to determine whether and to what extent the doctrine of offensive collateral estoppel applies to attorney discipline proceedings. We conclude that it may apply when the burden of proof in a prior proceeding equals or exceeds the clear and convincing burden governing the disciplinary proceeding. For the reasons recited below, however, we hold that collateral estoppel does not apply in the present case, and remand.
The Superior Court (McHugh and McGuire, JJ.), approving the Marital Master's (Martha W. Copithorne, Esq.) recommendations, twice found the respondent, Paul W. Bruzga, in civil contempt during post-divorce proceedings involving the custody of his children, and the Superior Court (Smukler, J.) imposed sanctions. On the basis of the conduct underlying the contempt and sanctions orders, the Supreme Court Committee on Professional Conduct (committee) petitioned for the respondent's disbarment. See Sup. Ct. R. 37(13)(a). We referred the matter to a judicial referee for a hearing. See Sup. Ct. R. 37(13)(e). The committee moved to preclude relitigation of the facts found in the underlying proceedings pursuant to the doctrine of offensive collateral estoppel. The referee transferred the issue to us without ruling.
It is well established that the doctrine of collateral estoppel serves the dual purpose of "promoting judicial economy and preventing inconsistent judgments." State v. Grimshaw, 128 N.H. 431, 436, 515 A.2d 1201, 1205 (1986). For it to apply in a particular proceeding,
the issue subject to estoppel must be identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared in the first action, or have been in privity with someone who did so. Further, the party to be estopped must have had a full and fair opportunity to litigate the issue, and the finding must have been essential to the first judgment.
Simpson v. Calivas, 139 N.H. 1, 7, 650 A.2d 318, 323 (1994) (quotation and citations omitted). If applied, collateral estoppel may "bar a party to a prior final judgment from relitigating any fact actually determined in the prior litigation." Petition of Breau, 132 N.H. 351, 359, 565 A.2d 1044, 1049 (1989).
"Offensive" application of collateral estoppel, such as the committee seeks, "results in determining an issue of fact over the actual or potential objection of a present respondent, by applying the determination reached in a prior proceeding in which the respondent was also a party." Id. Collateral estoppel should not be mechanically applied. See State v. Johnson, 134 N.H. 498, 502, 594 A.2d 1288, 1291 (1991). Rather, it should be employed with reason, equity, and fundamental fairness as ultimate goals. See id.; see also In re Owens, 532 N.E.2d 248, 251-52 (Ill. 1988); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979).
The purposes of collateral estoppel are reflected, to some degree, in our rules governing professional conduct proceedings. For example, after an attorney is convicted of a "serious crime," defined as any felony and certain lesser crimes, see Sup. Ct. R. 37(7)(b), we may immediately suspend the attorney, pending the final disposition of the formal disciplinary proceeding. Sup. Ct. R. 37(7)(a). The disciplinary proceeding, however, is limited to determining an appropriate sanction. Sup. Ct. R. 37(7)(d). Similarly, a final adjudication of attorney misconduct in another jurisdiction is prima facie evidence of misconduct in our disciplinary proceedings, and we may impose immediate discipline once notified of foreign discipline. Sup. Ct. R. 37(10). These procedures, which effectively preclude relitigation of underlying essential facts, are fully consistent with our obligation to protect the public and the integrity of the profession, to maintain public confidence in the bar, and to prevent future misconduct. See Basbanes' Case, 141 N.H. 1, 6, 676 A.2d 93, 96 (1996).
We hold that the doctrine of offensive collateral estoppel may be applied in attorney discipline proceedings when a prior proceeding was subject to a burden of proof equaling or exceeding the clear and convincing burden governing disciplinary proceedings. See Henderson's Case, 141 N.H. 805, 806, 694 A.2d 973, 974 (1997) (clear and convincing standard applied in discipline matter); Aubert v. Aubert, 129 N.H. 422, 427-28, 529 A.2d 909, 912-13 (1987) (successful criminal prosecution can bar defendant from relitigating liability and causation in subsequent civil action because of higher burden of proof in prior action); see also Bar Counsel v. Board of Bar Overseers, 647 N.E.2d 1182, 1184-85 (Mass. 1995). Properly applied, having due regard for the equitable considerations set forth in the Restatement (Second) of Judgments