Ben David v. Attorney Discipline Office of the NH Supreme Court

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Elena Ben David
v. Civil No. 25-cv-278-JL-AJ
Opinion No. 2026 DNH 150
Brian R. Moushegian, et al.
MEMORANDUM ORDER GRANTING MOTION TO DISMISS
Before the court is a motion to dismiss, on abstention and other grounds, a free
speech and due process challenge to a New Hampshire attorney discipline action. The
plaintiff Elena Ben David, a respondent in an ongoing state attorney discipline
proceeding, brings claims against various officials in the Attorney Discipline Office of
the New Hampshire Supreme Court, seeking declaratory and injunctive relief on the
grounds that the state proceeding violates her rights under the First and Fourteenth
Amendment of the U.S. Constitution. The state defendants move to dismiss this lawsuit
under, inter alia, the Younger abstention doctrine. The court has jurisdiction under 28
U.S.C. § 1331 (federal question).
After considering the parties’ written submissions and hearing oral argument, the
court grants the motion to dismiss. Because the plaintiff can raise the same federal
constitutional issues as defenses in the pending state proceeding, “principles of equity
and comity” under the Younger abstention doctrine behoove this court to abstain from
entertaining the lawsuit. See Sirva Relocation, LLC v. Richie, 794 F.3d 185, 191 (1st Cir.
2015) (citing Younger v. Harris, 401 U.S. 37, 43-46 (1971)).
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I. Applicable legal standard
A defendant may move to dismiss for the plaintiff’s “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6).1 On a motion to dismiss, a court
takes a plaintiff’s factual allegations in the complaint as true, and draws all reasonable
inferences from those facts in the plaintiffs’ favor. See Martino v. Forward Air, Inc., 609
F.3d 1, 2 (1st Cir. 2010). “The relevant inquiry focuses on the reasonableness of the
inference of liability that the plaintiff is asking the court to draw from the facts alleged in
the complaint.” Ocasio-Hernández v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011). “If
the factual allegations in the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture,” dismissal is appropriate.
Newman v. Lehman Bros. Holdings Inc., 901 F.3d 19, 25 (1st Cir. 2018) (internal
quotations omitted).
II. Background
For purposes of this order, the court recites the relevant facts from the plaintiffs’
operative complaint, accepts those facts as true, and draws all reasonable inferences from
those facts in the plaintiffs’ favor. See Forward Air, 609 F.3d at 2. The court omits
1 Ben David argues that Younger abstention is a question of subject matter jurisdiction under
Rule 12(b)(1) standard. Obj. Mot. Dismiss (doc. no. 30) at 8. For the purposes of this order, this
is a distinction without a difference, because both Rule 12(b)(1) and 12(b)(6) require a court to
“accept the Complaint’s well-pleaded factual allegations as true and draw all reasonable
inferences in Plaintiff’s favor,” and to refrain from resolving disputed factual issues or rejecting
plausible allegations in the complaint. Id. (citing Torres-Negrón v. J & N Records, LLC, 504
F.3d 151, 162–63 (1st Cir. 2007) and Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir.
2001)).
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several facts alleged in the complaint and discusses only the background relevant to
disposition of the motion to dismiss.
a. Factual and procedural background
The case arises out of a disciplinary proceeding under the New Hampshire
Supreme Court attorney discipline system. The plaintiff, the subject of the proceeding,
was an Assistant County Attorney in the Hillsborough County Attorney’s Office and a
member of the New Hampshire bar. The state disciplinary proceeding arose from
remarks the plaintiff made during a “dispositional conference” in a criminal case before
the Hillsborough County Superior Court. Prior to the conference, the state criminal
defense counsel, Attorney Doe, filed two motions in quick succession to compel
discovery of body-worn camera footage, both of which called for the court to sanction
Ben David for not producing the footage. These motions were entirely unnecessary: Ben
David’s office and the relevant law enforcement agency had provided Attorney Doe with
multiple links to access the footage before he filed either motion to compel, a fact which
no party disputes in any of the proceedings, and which the court accepts as true.2
At the dispositional conference, which took place in December 2022, the Superior
Court judge suggested that the parties engage in mediation to resolve the criminal case.
Ben David objected to mediation in part because she suggested that the working
2 See Notice of Charges (doc. no. 12-12) at 9 (noting that Attorney Doe admitted in an email to
Ben David and in a filing to the Superior Court that he had in fact received a link to the footage
before filing his motions to compel but had inadvertently deleted it). Plaintiff married in 2024
and changed her surname from “Brander” to “Ben David.” She is referenced in many of the
exhibits to the complaint, including the transcript of the dispositional conference and the Notice
of Charges, as Elena Brander. See Am. Compl. 2 n.1.
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relationship between her and Attorney Doe would make mediation unproductive, citing,
as evidence of the negative tenor of their working relationship, the still-pending (at that
time) discovery and sanctions motions Attorney Doe filed even after receiving multiple
links to the discovery he sought.3 She proceeded to make several remarks concerning
Attorney Doe’s professional character, even after the court made clear that it would rule
in her favor on the discovery and sanctions dispute,4 and while the court repeatedly told
her to stop.5 For instance, the transcript of the hearing shows Ben David stating:
• “And I have asked Attorney [Doe] numerous times, please, when you email
the state for discovery, please email me, not my assistant…For the record,
[Attorney Doe] has made an assistant in our office cry in the past”;6
• “And something else that I think is important for the court to note is
Attorney [Doe] was recently reprimanded because his trust account was out
of compliance by $15,000”;7 and
3 Dispositional Conf. Tr. (doc. no. 12-7) at 10:14-11:1 (“Your Honor, I’d respectfully ask that it
be done in any other case. Currently, I don't know how closely the court has looked at Attorney
[Doe]’s most recent pleadings…that might change the court’s opinion as to whether any
discussion of mediation or any litigation that may not be necessary in this case is worth the
State’s and the Court’s resources.”).
4 See id. at 21:20 (“COURT: Well he has [the requested discovery] now, so.”); 22:20-23 (“[Ben
David]: And there’s something else, Your Honor. COURT: Hold on. Hold on. I just don’t know
that that’s going to be productive in this…in this dispute”); 25:2-3 (“COURT: I’m going to deny
both Motions for Sanctions.”). After the hearing the court dismissed Attorney Doe’s discovery
motions as moot and denied his motions for sanctions. Notice of Charges (doc. no. 12-12) at 9.
5 See, e.g. Dispositional Conf. Tr. (doc. no. 12-7) at 27:11-12 (COURT: Can you stop interrupting
me please); 31:19-21 (COURT: No, we’re done. We’re done on the issue. I’ve given you ample
time to lay out your position on this.”); 32:1-8 (“COURT: No. Counsel I’m not going to – we’re
not going to get back into this….No, we’re not going to get into that.”).
6 Id. at 16:17-22.
7 Id. at 24:4-7.
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• “I just wonder if the court is aware of which circumstances under which
Attorney [Doe] left the Hillsborough County Attorney’s Office.”8
The court remonstrated with both attorneys, reminding them that “[b]oth of you
are representing interests that are not yourself….and because the two of you are working
so poorly with each other…neither of your respective clients, the State on your part, or
the defendant, are being served.”9 In response, Ben David asked the court “what exactly
the State is alleged to have done wrong,”10 then, interrupting the court’s answer,
continued “[t]here’s something else, Your Honor…I do think there’s an important other
piece of this puzzle that the court needs to know…”.11 Ben David stopped remarking
about Attorney Doe’s character when the court threatened to hold her in contempt.12
After the conference Attorney Doe filed a grievance with the ADO accusing her of
violating N.H. R. Prof. Conduct 8.4. Three weeks later Ben David filed a “reply and
cross-grievance” with the ADO.13 In June 2023, the ADO informed Ben David that it
was docketing Attorney Doe’s grievance against her, but did not issue a formal complaint
or Notice of Charges against her at the time.14 Ben David requested a meeting with
Disciplinary Counsel from the ADO’s office, who told her that her conduct fell under
8 Id. at 32:3-6.
9 Id. at 25:16-26:2.
10 Id. at 26: 3-4.
11 Id. at 26:3-13.
12 Id. at 32:10-14 (“THE COURT: We’re not -- this is -- this is the mistake you keep making,
which is you keep making personal attacks. Enough. Enough. Ms. Brander, I’m going to hold
you in contempt if you don’t stop going down this path. Are we clear?”).
13 Am. Compl. at ¶ 135.
14 Id. at ¶ 141.
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Rule 4.4(a) rather than Rule 8.4.15 In 2024, Ben David renewed her grievance against
Attorney Doe.16 The ADO declined to take any action on her grievances.17 In March
2025 it sent her a formal Notice of Charges, alleging that her statements during the
hearing violated N.H. R. Prof. Conduct 4.4(a), which prohibits a lawyer from “tak[ing]
any action if the lawyer knows or it is obvious that the action has the primary purpose to
embarrass, delay or burden a third person.”18
In July 2025 Ben David brought facial and “as-applied” challenges in this court to
Rule 4.4(a) and the proceeding against her under the First and Fourteenth Amendments of
the U.S. Constitution, alleging that the rule is both vague and overbroad and the
proceedings have abridged her right to procedural due process.19 She alleges, inter alia,20
that the ADO precluded her from pursuing discovery in a timely manner: the New
Hampshire Supreme Court rules governing the attorney discipline process (N.H. Supreme
Court Rules 37 and 37A) do not allow a respondent to initiate discovery until after the
ADO files a Notice of Charges, which it failed to do for over two years. By the time she
was allowed to conduct discovery, Ben David alleges, Attorney Doe had deleted the
15 Id. at 169.
16 Id. at ¶ 143.
17 Id. at ¶ 144.
18 Notice of Charges (doc. no. 12-12) at 10. Ben David alleges that earlier in 2024, at a statewide
ethics training for the N.H. Attorney General’s office, the ADO’s General Counsel told
prosecutors that they would not “encounter” Rule 4.4(a) because the rule proscribes a lawyer’s
conduct when “representing a client.” See Am. Compl. (doc. no. 12) at ¶¶ 179-80.
19 She simultaneously urged the New Hampshire Supreme Court to exercise original jurisdiction
to hear similar claims, which it declined to do.
20 As noted supra, the court does not discuss Ben David’s allegations as to the full merits of her
claims; instead, it discusses only those allegations relevant to the motion to dismiss.
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email showing when he had received the link to the BWC footage, despite having
received a “Notice to Preserve Evidence.”21
Ben David also alleges that the ADO seeks to prevent her from presenting
evidence in the disciplinary proceeding regarding her rights and defenses, namely,
evidence regarding the context of Ben David’s remarks, relevant under Gentile v. State
Bar of Nevada, 501 U.S. 1030, 1039 (1991) to her First Amendment defense.
In November 2025, the ADO moved to dismiss Ben David’s claims in this court.22
Ben David then filed an Amended Complaint, adding as defendants to this lawsuit
members of the Hearings and Professional Conduct Committees sitting on her case.23 At
oral argument, counsel for the state defendants represented that, in response to being
named as defendants in this lawsuit, the Hearings Committee stayed the disciplinary
proceedings against Ben David.24 The state defendants then filed a new motion to
dismiss.25
The court held oral argument on the motion on August 7, 2026, a Friday. On the
following Tuesday, August 11, Ben David filed a notice of changed facts, informing the
court that August 7 had been her last day as an Assistant County Attorney in the
21 Am. Compl. (doc. no. 12) at ¶¶ 117-122. Ben David characterizes this as a failure both by
Attorney Doe and by the ADO to “preserve or obtain the November 28, 2022 e-mail at the center
of the discovery dispute [] despite a preservation request.” Obj. Mot. Dismiss (doc. no. 30) at 6.
22 Mot. Dismiss (doc. no. 8).
23 Am. Compl. (doc. no. 12).
24 See also Obj. Mot. Dismiss (doc. no. 30) at 19 (“the disciplinary proceeding is stayed only
because of this federal action and [] the Hearings Committee remains ready to resume the
matter.”).
25 Mot. Dismiss (doc. no. 28).
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Hillsborough County Attorney’s Office.26 Instead, as of August 10, 2026, she is an
attorney in the United States Department of Justice Civil Rights Division.
b. New Hampshire’s attorney discipline process
The New Hampshire Supreme Court and its Attorney Discipline System exercise
disciplinary jurisdiction over attorneys admitted to practice law in New Hampshire,
applying the New Hampshire Supreme Court’s Rules of Professional Conduct. See N.H.
Supreme Court Rule 37(1)(b).
The ADO, led by its General Counsel, is a division of the Supreme Court’s
administrative office. See Rule 37(1). The General Counsel’s office receives and
investigates professional conduct complaints, after which it has the discretion to
terminate or dismiss a complaint, refer it to the disciplinary counsel for a hearing, or
divert an attorney out of the Attorney Discipline System. See Rule 37(6). The Complaint
Screening Committee, a separate body from the ADO, consists of ten members and has
similar powers to dismiss or refer complaints, or to divert attorneys out of the discipline
system. Rule 37(5).
The disciplinary counsel, an officer within the ADO, “perform[s] prosecutorial
functions” and has the power to review complaints, contact witnesses and conduct
discovery, prepare complaints for hearings, try cases before the Hearings Committee,
appear before the Professional Conduct Committee, and represent the ADO and the PCC
before the New Hampshire Supreme Court. Rule 37(6)(f). If the General Counsel or
26 Notice Changed Facts (doc. no. 38).
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Complaint Screening Committee refer a complaint to the disciplinary counsel, she begins
the formal disciplinary process by filing a Notice of Charges setting forth “the allegations
of misconduct against the respondent and the disciplinary rules alleged to have been
violated.” Rule 37A(III)(b)(2). Once the disciplinary counsel files a Notice of Charges,
the respondent may file an answer and conduct discovery. Rule 37A(III)(b)(3) & (5).
The respondent’s answer should respond to each allegation and assert all affirmative
defenses. See Rule 37A(III)(b)(3)(B).
The Hearings Committee, made up of lawyers and non-lawyers, initially hears
cases. Rule 37(4). Hearings may include evidence, witnesses, and expert witnesses.
Attorneys for both parties (the ADO and the accused respondent) may examine and cross-
examine witnesses. Rule 37A(III)(c)(4). Although formal rules of evidence do not apply,
the Hearings Committee may make rulings on the admissibility of evidence. After
hearing the evidence the Hearings Committee writes a report with its findings of fact and
law,27 a recommendation of whether its findings “support a conclusion that the rules of
professional conduct were violated by clear and convincing evidence,” and an appropriate
sanction. Rule 37A(III)(d)(1). The Professional Conduct Committee, also made up of
lawyers and non-lawyers, hears oral argument and reviews the report, hearing transcript
and any memoranda filed by the parties before determining “whether there is clear and
convincing evidence of violations of the rules of professional conduct.” Rule
27 See Rule 37A(III)(d)(2)(C)(i) (The PCC shall “[r]eview the hearing panel’s report addressing
any contested matters of fact and law. The committee shall uphold the hearing panel’s findings of
fact unless clearly erroneous or manifestly in error. The committee shall review the hearing
panel’s conclusions of law and recommendation of sanction de novo.”).
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37A(III)(d)(2)(C). If the PCC finds a violation, it issues a sanction. If the PCC
recommends a sanction involving a suspension of longer than six months, it must give
notice of its findings and recommendation to the New Hampshire Supreme Court, which
must make the ultimate finding in imposing such a sanction. A respondent or the
disciplinary counsel may appeal any finding or sanction imposed by the PCC to the New
Hampshire Supreme Court, but appeals of lesser sanctions, including reprimands or
suspensions of less than six months, are not mandatory and the Supreme Court may
decline to hear them. Rule 37A(III)(d)(4)(A).
III. Analysis
The ADO argues that Ben David’s claims are barred by the Younger abstention
doctrine, the Eleventh Amendment, and prosecutorial immunity. Because the court
dismisses the case, without prejudice, based on Younger abstention, it does not address
the other potential grounds for dismissal, on which Ben David advances more meritorious
arguments.
“[P]rinciples of equity and comity demand that a federal court abstain from
entertaining a suit that seeks to enjoin a state [proceeding] as violative of federal law so
long as the state proceeding affords an adequate opportunity to raise the federal defense
and abstention will not cause irreparable harm.” Sirva Relocation, LLC v. Richie, 794
F.3d 185, 191-92 (1st Cir. 2015) (citing Younger v. Harris, 401 U.S. 37, 43-46 (1971));
see also Netflix, Inc. v. Babin, 88 F.4th 1080, 1090 (5th Cir. 2023) (“Fidelity to
[principles of federalism], as articulated in the canonical case of Younger v. Harris, often
requires us to abstain from interfering with a pending state criminal proceeding, even
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when it implicates a defendant’s federal constitutional rights . . . by asking a federal court
to exercise its extraordinary equitable powers amidst an ongoing state proceeding, the
plaintiff must come with equally extraordinary allegations.”). Besides state criminal
prosecutions, the abstention doctrine extends to “civil proceedings that are akin to
criminal prosecutions,” and proceedings “that implicate a State’s interest in enforcing the
orders and judgments of its courts.” Sirva Relocation, 794 F.3d at 192.
Invoking Younger abstention requires a three-step approach. Id. at 192. First, a
federal court must find that the state proceeding “falls within the Younger taxonomy,”
namely, that it is the type of state proceeding to which Younger may attach. Id. at 192-93.
Next it must consider whether the “ongoing state judicial proceeding, instituted prior to
the federal proceeding…implicates an important state interest, and [] provides an
adequate opportunity for the plaintiff to raise the claims advanced in his federal lawsuit.”
Id. at 193; Brooks v. New Hampshire Supreme Ct., 80 F.3d 633, 638 (1st Cir. 1996) (citing
Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982)).
Having found that Younger abstention may lie, a court should nevertheless decline to
invoke it where “a state proceeding is brought in bad faith,” “the state forum provides
inadequate protection of federal rights,” or a state statute at issue is “flagrantly and
patently violative of express constitutional prohibitions.” Sirva Relocation, 794 F.3d at
192.
a. Younger abstention
The Supreme Court and the First Circuit Court of Appeals have both applied
Younger abstention to state attorney discipline hearings. See Brooks v. New Hampshire
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Supreme Ct., 80 F.3d at 638; Middlesex County Ethics Comm., 457 U.S. 423 at 435.
These cases create strong precedent rather than a categorical rule, but even without this
precedent the court would find that the disciplinary proceedings against Ben David fall
within a category of cases to which Younger abstention may attach. The attorney
discipline process in New Hampshire resembles a “criminal prosecution in important
respects.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 79 (2013) (internal quotation
marks omitted). It is an enforcement of the New Hampshire Supreme Court’s Rules of
Professional Conduct against an attorney alleged to have violated them. The enforcement
action against Ben David was “initiated to sanction [her], i.e., the party challenging the
state action, for some wrongful act.” See id. The state defendants in the case are parties
to the state proceeding and initiated it. See id. The state actors initiated an investigation
and that investigation culminated in the filing of a formal charge against Ben David. See
id. at 79-80.
b. Middlesex factors
Ben David contests two aspects of the Middlesex factors: first, that the posture of
the state proceeding is material, and second, that the state proceeding provides an
adequate opportunity for the plaintiff to raise the claims advanced in the federal lawsuit.
She does not contest the State’s “extremely important interest in maintaining and assuring
the professional conduct of the attorneys it licenses,” especially those “involved in the
administration of criminal justice.” Middlesex County Ethics Comm., 457 U.S. 423 at
434.
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Ongoing proceeding and state interest. The state proceeding against Ben David
is stayed pending resolution of this lawsuit,28 which, she argues, distinguishes her case
from Brooks and Middlesex, where the state proceedings were, in theory, ongoing or in
more advanced stages.29 But Ben David cites no authority for the proposition that a stay
in the state court proceedings precludes or should preclude abstention. Moreover, Ben
David’s state proceeding was active—parties had filed motions in limine in preparation
for a scheduled hearing—before Ben David amended her complaint in this case to add the
Hearings Committee as defendants to this suit.30 Only then did the Hearings Committee
stay the discipline proceedings.31
Younger abstention is not merely a doctrine of efficiency. “The underlying reason
for restraining [federal] courts” is the “vital consideration…of comity,” which entails “a
proper respect for state functions, a recognition of the fact that the entire country is made
up of a Union of separate state governments,” and a “belief that the National Government
will fare best if the States and their institutions are left free to perform their separate
functions in their separate ways.” Younger, 401 U.S. at 44. The stay in no way
diminishes these considerations, particularly as the Hearings Committee only issued it
upon being named as defendants in this lawsuit. Any value the stay might have in
promoting efficiency by obtaining federal adjudication of an “antecedent” constitutional
28 Notice of Stay (doc. no. 21).
29 Obj. Mot. Dismiss (doc. no. 30) at 11.
30 Based on representations made by counsel at oral argument.
31 See id. at 19 (“the disciplinary proceeding is stayed only because of this federal action and []
the Hearings Committee remains ready to resume the matter.”)
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question is outweighed by the state’s “extremely important interest in maintaining and
assuring the professional conduct of the attorneys it licenses,” particularly those
“involved in the administration of criminal justice.” See Middlesex County Ethics
Comm., 457 U.S. 423 at 434. As in Middlesex, considerations of comity and the
importance of the state’s interests favor “afford[ing] [the state] the opportunity to
interpret its rules in the face of a constitutional challenge.” Id. at 429.32
Adequacy of the state proceeding. “Except in the most extraordinary cases, a
federal court must presume that state courts…are fully competent to adjudicate federal
constitutional and statutory claims properly presented by the parties.” Casa Marie, Inc.
v.Super. Ct. of P.R., 988 F.2d 252, 262 (1st Cir.1993). Ben David argues that the attorney
discipline proceedings are inadequate because (i) before receiving the Notice of Charges
she had no mechanism to compel discovery, move to dismiss, or challenge the
constitutionality of Rule 4.4(a); and (ii) the Hearing Panel, as an administrative arm of
the Supreme Court, lacks the power to declare Rule 4.4(a) unconstitutional, and review
by the New Hampshire Supreme Court is only guaranteed for certain disciplinary
outcomes and not others, so the “disciplinary process can proceed without any judicial
officer ever resolving the facial constitutional issue.”33
32 Ben David’s reliance on New Orleans Pub. Serv., Inc. v. Council of City of New Orleans for
the proposition that “there is no doctrine that the availability or even the pendency of state
judicial proceedings excludes the federal courts” is misplaced. See 491 U.S. 350, 373
(1989) (“NOPSI”). Younger does not function as a categorical bar, requiring abstention any time
there is a pending state proceeding. Instead it is a rule that prevents federal courts from unduly
interfering in state proceedings in certain specific circumstances. The suit at issue in NOPSI was
“no more than a state-court challenge to completed legislative action,” so the pendency of the
state proceeding did not affect the Court’s decision not to abstain. Id.
33 Obj. Mot. Dismiss (doc. no. 30) at 10, 12.
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Discovery. The disciplinary process against Ben David is not rendered inadequate
because she was unable to begin litigating her case before the ADO filed a formal Notice
of Charges against her. Even as a defendant in a federal case, she would have had to wait
for a formal complaint or charges were filed against her before she could engage in
discovery, move to dismiss, or raise federal constitutional defenses. Ben David does not
allege that there are no mechanisms by which she can obtain discovery and defend her
case, including by raising her constitutional claims, only that she was not able to access
those mechanisms until the rules allowed her to do so, with the filing of the formal
Notice. Ben David emphasizes the importance of discovery to allow defendants in state
proceedings to contextualize their regulated speech under Gentile v. State Bar of Nevada,
501 U.S. 1030, 1038 (1991).34 Without discounting that importance, nor the potential
ramifications that the ADO’s alleged delay in bringing charges against her may have for
her ability to contextualize her statements, Ben David does not allege, nor is there reason
to believe, that the Hearings Committee, PCC, or New Hampshire Supreme Court would
refuse to hear her arguments on the allegedly inadequate discovery, including that the
ADO’s discovery practice fatally hindered her ability to mount a defense.
Mandatory review. Ben David argues that the Hearing Panel and the PCC lack the
authority to declare Rule 4.4(a) unconstitutional.35 Counsel for the Hearings Committee
and PCC confirmed at oral argument that the committees would not make specific rulings
on Ben David’s constitutional defenses, but that the issues, if raised, would be preserved
34 Id. at 16-17.
35 Id. at 10.
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for review by the New Hampshire Supreme Court. Should the Hearing Panel and the
PCC find a violation and recommend a sanction less than a six-month suspension,
however, Ben David’s appeal to the New Hampshire Supreme Court would not be
mandatory.
Ben David cites no authority suggesting that adequacy requires a mandatory
appeal to a state Supreme Court. In Middlesex Ctny. Ethics Comm., for example, review
by the state’s Supreme Court demonstrated the “abundant” adequacy of a state’s
adjudicatory proceedings, see 457 U.S. at 436, but no court has made mandatory review a
requirement for adequacy. The court declines to take such a position here. The New
Hampshire Supreme Court retains the ultimate ability to review any findings and
sanctions imposed by the Hearings Committee and PCC, even if the committees refuse to
make specific findings on Ben David’s constitutional defenses. See N.H. Supreme Court
Rule 37A(III)(d)(1) and (2). The New Hampshire Supreme Court declined to take the
extraordinary measure of exercising its original jurisdiction to hear her constitutional
claims before they were adjudicated through the disciplinary proceedings, but has taken
up federal constitutional challenges in other New Hampshire attorney discipline cases.
See, e.g. In re Reiner's Case, 152 N.H. 163, 872 A.2d 1038 (2005). There is no reason to
believe it would not do so here.
Nothing inherent in New Hampshire’s attorney discipline process raises the
suspicion that it could not adequately resolve Ben David’s federal constitutional
challenges. Further, it is inconceivable to this court that the New Hampshire Supreme
Court, faced with constitutional challenges rejected or unaddressed by the Hearings
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Committee or the PCC, would simply decline to exercise its jurisdiction to consider these
arguments. And Ben David is free to contest the imposition of a sanction against her in
federal court if the New Hampshire Supreme Court refuses to hear her appeal.
c. Exceptions
“Abstention is inappropriate…when a state proceeding is brought in bad faith,
that is for the purpose of harassment,” or a state statute at issue is “flagrantly and patently
violative of express constitutional prohibitions.” Sirva Relocation, 794 F.3d at 192. Ben
David argues that, even if disciplinary proceeding against her otherwise fell within
Younger’s domain, abstention is inappropriate here because she alleges that the state
prosecution was brought in bad faith, and because her case involves a facial challenge
under the First Amendment in which she alleges that “the disciplinary proceeding has
sharply curtailed and adversely affected her professional speech.”36
Bad Faith. “[T]he ‘bad faith’ exception [to Younger abstention] is narrow and
should be granted parsimoniously.” Netflix, Inc. v. Babin, 88 F.4th 1080, 1091 (5th Cir.
2023) (quoting Hefner v. Alexander, 779 F.2d 277, 280 (5th Cir. 1985)).37 “The Supreme
Court has recognized the ‘longstanding presumption of regularity accorded to
prosecutorial decisionmaking,’ and has similarly observed that ‘the Government retains
broad discretion as to whom to prosecute.’” Id. (citing Hartman v. Moore, 547 U.S. 250,
263 (2006) and Wayte v. United States, 470 U.S. 598, 607 (1985)). “Thus, a plaintiff
36 Id. at. 13; Am. Compl. (doc. no. 12) at ¶ 210.
37 Without adopting a standard on bad faith where the First Circuit Court of Appeals has not, the
court is guided by the Fifth Circuit based on the plaintiff’s suggestion at oral argument.
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seeking to short-circuit the usual prosecutorial process by invoking the protection of a
federal court ‘may overcome the presumption of abstention’ by showing ‘proven
harassment’ or that the ‘prosecutions [were] undertaken by state officials in bad faith
without hope of obtaining a valid conviction.’” Id. (quoting Nobby Lobby, Inc. v. City of
Dallas, 970 F.2d 82, 87 (5th Cir. 1992) (quoting Perez v. Ledesma, 401 U.S. 82, 85
(1971))).
At oral argument, Ben David pointed to Nextflix to support her allegation that the
ADO brought the disciplinary charges against her in bad faith. The Netflix court found
that several aspects of the prosecution in that case, taken together, created a “mosaic” of
bad faith on the part of Babin, the state prosecutor. See id. at 1096. First, Babin brought
initial charges against Netflix, then failed to move the case along for over a year,
becoming suddenly active again only after Netflix filed a motion for habeas relief. Id. at
1092. Second, when Netflix moved for habeas relief, over a year after the initial charges
were filed, Babin brought four more separate indictments charging more serious offenses,
a “hallmark of bad faith.” Id. at 1093. Third, the newly charged indictments involved
activity (a nude scene with an actress who was over the age of 18 at the time of filming)
that the prosecutor had previously stated was not part of the “gravamen” of the
indictment; he brought charges based on the scene over a year after Netflix offered to
provide proof that the actress was of age, which he declined. Id. at 1093-94. The district
and appellate courts both concluded that he had “no hope of obtaining a valid conviction”
on charges based on the scene. Id. at 1094-95.
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Ben David’s allegations of bad faith do not come close to the “mosaic” of conduct
constituting bad faith in Netflix. She points first to the ADO’s failure to obtain or
preserve emails showing that Attorney Doe had received the discovery he sought in his
discovery motions before he filed them. She argues that this failure constitutes a
violation of the ADO’s prosecutorial obligations under Brady v. Maryland, 373 U.S. 83,
87 (1963) and Giglio v. United States, 405 U.S. 150, 154–55 (1972) to provide her with
impeachment evidence on “the complaining witness on whom the prosecution depends”
and “central to the only factual dispute that gave rise to the charge.”38 The emails may
very well constitute impeachment evidence on Attorney Doe. But the ADO does not
deny that he received the emails, and the discovery, before he filed his second discovery
motion.39 Thus the emails have virtually no impeachment value: the parties could easily
agree to the facts in a stipulation, which Attorney Doe would have no choice but to
acknowledge if confronted as a witness,40 obviating the need for the emails. And as the
ADO rightly points out, there is no “factual dispute” giving rise to the charges against
Ben David; the charges are based on whether her statements during the dispositional
conference were appropriate, not whether they were truthful.41
38 Obj. Mot. Dismiss (doc. no. 30) at 14-15.
39 Mem. Mot. Dismiss (doc. no. 28-1) at 2 (“While there was some dispute as to when Attorney
Doe had received and/or opened the subject discovery, Attorney Doe acknowledged, during the
Conference, that he had received same prior to the Conference, and prior to filing his second
motion to compel, though he claimed he was not aware that the discovery had been provided
when he filed the second motion.”) (emphasis in original).
40 The need for any such impeachment is highly unlikely. Both Attorney Doe and the ADO
concede that Doe filed his motion after having received the discovery.
41 Reply (doc. no. 34) at 2.
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Ben David next points to the fact that (i) the ADO’s General Counsel had
previously advised state prosecutors that they would not “encounter” Rule 4.4(a); (ii) the
ADO charged her under a different rule—4.4 rather than 8.4—than Attorney Doe filed his
grievance under; (iii) the ADO dismissed her cross-grievance against Attorney Doe; and
(iv) the Notice of Charges “cherry picked three statements [while] ignor[ing] the context
in which they were made [and] adopt[ing] Attorney Doe’s position that his misconduct
was irrelevant,” as evidence of “arbitrary, selective, and retaliatory enforcement.”42 The
court disagrees. That the Notice of Charges did not sufficiently contextualize her
statements does not merit a finding that the ADO acted in bad faith, even if Gentile v.
State Bar of Nevada, 501 U.S. 1030, 1038 (1991) requires an adjudicator to evaluate the
context of a challenged statement. Neither does the ADO’s choice to charge Ben David
under Rule 4.4(a) rather than Rule 8.4. Even though the ADO told prosecutors they
would not encounter Rule 4.4(a) because it involves “representing a client,”43 the
decision to charge under Rule 4.4(a) falls well within the scope of prosecutorial
discretion. See Netflix, Inc. v. Babin, 88 F.4th at 1091 (“The Supreme Court has
recognized the ‘longstanding presumption of regularity accorded to prosecutorial
decisionmaking,’ and has similarly observed that ‘the Government retains broad
discretion as to whom to prosecute.’”). Other than to point to the fact that the ADO
42 Obj. Mot. Dismiss (doc. no. 30) at 16.
43 Am. Compl. (doc. no. 12) at ¶ 180. The Hillsborough County Superior Court noted that Ben
David’s “client” was the state: “COURT: because the two of you are working so poorly with each
other…neither of your respective clients, the State on your part, or the defendant, are being
served.” Dispositional Conf. Tr. (doc. no. 12-7) at 25:16-26:2.
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brought charges against her and not Attorney Doe, Ben David “fail[s] to suggest any
reason why the defendants would want to persecute [her] or why they bore any malice
towards [her].” See Hefner v. Alexander, 779 F.2d 277, 279–80 (5th Cir. 1985).
Instead, the ADO’s actions appear to be a good faith, if delayed, attempt to hold
Ben David accountable for making statements in court that, in its view, even if truthful,
went beyond the bounds of acceptable advocacy. Rather than the “selective pursuit of
one side of a mutually dependent credibility dispute” that Ben David makes it out to be,44
the disciplinary action appears to accept as a given Ben David’s credibility but questions
her motivation and judgment. The bad faith exception “is narrow and should be granted
parsimoniously.” Netflix, Inc., 88 F.4th at 1091. The court does not find bad faith here.
Constitutional violation. The “facial invalidity of a statute is not itself an
exceptional circumstance justifying federal interference with a state criminal
proceeding.” Huffman v. Pursue, Ltd., 420 U.S. 592, 602 (1975); see also Younger, 401
U.S. at 54 (“the possible unconstitutionality of a statute ‘on its face’ does not in itself
justify an injunction against good-faith attempts to enforce it.”). But “where a state
statute is ‘flagrantly and patently violative of express constitutional prohibitions in every
clause, sentence and paragraph, and in whatever manner and against whomever an effort
might be made to apply it,’” Younger abstention may not lie. Trainor v. Hernandez, 431
U.S. 434, 446-47 (1977) (quoting Younger, 401 U.S. at 53-54).
44 Obj. Mot. Dismiss (doc. no. 30) at 17.
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N.H. R. Prof. Conduct 4.4(a), under which Ben David faces potential discipline,
does not meet this standard. The rule provides that “[i]n representing a client, a lawyer
shall not take any action if the lawyer knows or it is obvious that the action has the
primary purpose to embarrass, delay or burden a third person.” N.H. R. Prof. Conduct 4.4
(emphasis added). It differs from the ABA Model Rule 4.4(a), which prohibits lawyers
from using “means that have no substantial purpose other than to embarrass, delay, or
burden a third person.” (Emphasis added). Thus, as Ben David argues, New Hampshire
lawyers are held to a higher standard than are lawyers whose states have adopted the
Model Rule. Under the Model Rule, lawyers may use means that have a substantial
purpose to embarrass, harass, or delay a third person so long as the action also has
another substantial purpose. But in New Hampshire, lawyers may not take an action with
the primary purpose of embarrassing, delaying, or burdening a third person, even if that
action also has another substantial purpose. This may be so. But New Hampshire’s
departure from the Model Rule is not so “flagrantly and patently violative” that its
application would be clearly unconstitutional “in whatever manner and against whomever
an effort might be made to apply it.” See Trainor, 431 U.S. at 446-47. Rather, because of
the proximity between the conduct falling under the New Hampshire rule and the Model
Rule, it is possible that in practice, the two rules would have substantial overlap.45
Ben David argues that instead of this general standard for exceptions under
Younger, the court should apply a seemingly lower standard for constitutional challenges
45 Ben David does not contest the constitutionality of the Model Rule.
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brought under the First Amendment, namely, that abstention is inappropriate where
“statutes are justifiably attacked on their face as abridging free expression.” City of
Houston v. Hill, 482 U.S. 451, 467 (1987) (declining to abstain under Railroad Comm’n
v. Pullman Co., 312 U.S. 496 (1941)).
The court declines to adopt this standard. First, the Court in Hill would have
found Pullman abstention inappropriate “even if [the] case did not involve a facial
challenge under the First Amendment” because the statute at issue there was not
“susceptible to a limiting construction” that would render the constitutional issue
“unnecessary” to decide. Id. at 468.46 That is not the case here. As discussed, the
contested Rule 4.4(a) follows in part the ABA Model Rule, which Ben David does not
contest. It is possible, therefore, that the New Hampshire Supreme Court may give Rule
4.4(a) a limiting construction consistent with the uncontested Model Rule, and with
federal constitutional requirements.
Second, Younger itself discusses “criminal prosecution under a statute regulating
expression,” noting that it “usually involves imponderables and contingencies that
themselves may inhibit the full exercise of First Amendment freedoms,” but that “this
sort of ‘chilling effect,’ … should not by itself justify federal intervention.”47 Younger,
46 The Court in Hill also notes that “the adequacy of state procedures is examined much more
strictly in cases seeking Pullman abstention than in cases seeking Younger abstention.” Hill, 482
U.S. at 477 n.5.
47 Given her move out of the jurisdiction to the United States Department of Justice Civil Rights
Division, a development which strongly undermines the suggestion of any stigma attached to the
disciplinary action, the ongoing chill Ben David alleges to have experienced in her role as a
Hillsborough County Assistant District Attorney is not a strong consideration for the court.
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401 U.S. at 50. The Court notes that “procedures for testing the constitutionality of a
statute ‘on its face’…and for then enjoining all action to enforce the statute until the State
can obtain court approval for a modified version, are fundamentally at odds with the
function of the federal courts in our constitutional plan,” and held that the federal courts’
“vital responsibility” to “declare laws unconstitutional…does not amount to an unlimited
power to survey the statute books and pass judgment on laws before the courts are called
upon to enforce them.” Id. at 52. Because Younger itself contemplates abstention in the
face of a challenge regarding free expression, the court sees no reason to adopt a different
standard here.
IV. Conclusion
For the reasons stated above, the court GRANTS the defendants’ motion to
dismiss.48 The case is dismissed without prejudice to the plaintiff’s ability to reassert her
claims in this court should the New Hampshire Supreme Court decline to consider her
constitutional defenses. The clerk is ordered to close the case and enter judgment.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: October 16, 2026
Cc: Counsel of record
48 Doc. no. 28.
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