LD-2003-010, LANE'S CASE

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Original
No. LD-2003-010
LANE'S CASE
Argued: May 10, 2005
Opinion Issued: December 28, 2005
Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and
orally), for the committee on professional conduct.
Hinckley, Allen & Snyder LLP, of Concord (Stephen E. Weyl on the brief
and orally), and Sheehan, Phinney, Bass & Green, P.A., of Manchester (Robert
H. Miller on the brief), for the respondent.
GALWAY, J. On December 15, 2003, the Supreme Court Committee on
Professional Conduct (committee) filed a petition recommending that the
respondent, Kendall W. Lane, receive a six-month suspension from the practice
of law for violating New Hampshire Professional Rules of Conduct 1.9(c)(1) and
8.4(c). We referred the petition to a Judicial Referee (Dickson, J.) for a hearing
and written report. The referee found that the committee failed to prove by
clear and convincing evidence that Lane violated any of the New Hampshire
Rules of Professional Conduct. We deny the petition.
I
The record reflects the following facts. Lane has been a member of the
bar of New Hampshire since 1975, and practiced at the firm of Lane & Bentley
from 1978 until 2001.

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On September 25, 1992, Robert Bennett, a client of Lane & Bentley, died
in an automobile accident. Robert Bennett was survived by his wife, Jane
Bennett, their three daughters, Molly Weise (now Molly Bennett Lane), Ann
Kunz Bennett and Jane B. Brown, and their son, Lafell D. Bennett (Dick
Bennett). Lane & Bentley represented the estate of Robert Bennett. Dick
Bennett served as the executor of the estate. The final accounting of the estate
was filed in November 1993, showing a total value of $5,497, but a net balance
of $0 because of expenditures. The estate was allowed by the Cheshire County
Probate Court in February 1994, and Dick Bennett was discharged as
executor.
Jane Bennett retained an attorney to prepare a will and trust agreement,
which she executed in June 1993, appointing herself and Dick Bennett as co-
trustees. She also provided Dick Bennett with a durable power of attorney. In
June 1994, Jane Bennett moved from her residence in Keene to the Woodard
Home, an assisted living facility in Keene. Around the same time, Lane became
romantically involved with Molly. In 1995, Molly and Ann Kunz Bennett
became concerned about their mother’s health and financial situation. They
requested to meet with their brother, Dick Bennett, their mother, Jane
Bennett, and her attorney, and all of them met twice in the summer of 1995.
At the second meeting, Dick Bennett produced a physician’s letter indicating
that Jane Bennett was no longer mentally capable of making her own financial
decisions. Dick Bennett also produced an analysis of funds, indicating that the
trust then had a balance of $308,762, not including Jane Bennett’s home in
Keene and a cottage in Swanzey, which were worth a combined $440,000. The
accounting stated that the trust balance would last for approximately seventy-
one months, and that the total value of the fund would support Jane Bennett
for approximately eighteen years.
Jane Bennett’s mental condition continued to deteriorate and, by the end
of 1995, it became apparent that she had to be placed in a nursing home.
Molly and Ann Kunz Bennett contended that she should be placed in a nursing
home in Keene, where she had lived her entire life. Dick Bennett wanted to
place her in a home in Manchester, citing a potential lack of funds, despite the
fact that only a few months earlier he had assured his sisters that trust assets
would provide for their mother for eighteen years. Concerned about their
mother’s placement and Dick Bennett’s conflicting statements, the sisters
retained attorney Silas Little who, in January 1996, brought a petition against
Dick Bennett in probate court seeking the appointment of a new guardian for
their mother. Dick Bennett hired attorney David Wolowitz to contest the
petition.
The guardianship proceedings were terminated when, in March 1996,
Jane Bennett became very ill and the parties agreed, out of necessity, to place

3
her in a Keene nursing home. Additionally, Dick Bennett agreed to provide his
sisters an accounting of the trust assets. The accounting indicated that, as of
April 30, 1996, the fund balance was merely $65,917, compared with the
almost $309,000 balance reported a half-year earlier. The sisters were
suspicious and asked Attorney Little to investigate.
Attorney Little, representing the Bennett sisters, wrote to Attorney
Wolowitz, Dick Bennett's attorney, inquiring about discrepancies in the
accounting. One discrepancy relevant to this matter concerned a page of the
accounting describing the source of Jane Bennett’s trust funds. On that page,
Dick Bennett listed a contribution from the estate of Robert Bennett in the
amount of $121,000, which appeared to conflict with the report to the probate
court that the estate had a total value of $5,497 and a net value of $0. In
response to Attorney Little’s letter, Attorney Wolowitz wrote that, although the
reported value of the estate was $0, the Jane Bennett Trust had received
approximately $121,000 in accident insurance proceeds upon Robert Bennett’s
death. Attorney Wolowitz suggested that if Attorney Little thought that Lane &
Bentley should have included the $121,000 in the estate, his client would
cooperate.
Lane became aware of this letter through Attorney Little, who inquired as
to what Attorney Wolowitz might be referring. Lane obtained, from storage, the
file concerning Robert Bennett’s estate. In the file, Lane discovered an
accounting that had been prepared by Dick Bennett, as executor of the estate,
on August 20, 1993, and submitted to Lane & Bentley. The accounting showed
insurance proceeds from two policies, “National Grange Mutual” and
“Merchants Insurance,” totaling approximately $126,000. The accounting also
showed that there was a value of $121,000 remaining. Lane, without
contacting Dick Bennett or Attorney Wolowitz, gave Attorney Little a copy of
that accounting.
The sisters were also concerned about an apparent discrepancy between
statements allegedly made by Dick Bennett shortly after their father died and
the accounting he provided in May 1996. Jane Brown remembered that after
their father died, Dick Bennett had told her that their father had possessed a
life insurance policy for $100,000, but that the final payment could be
$200,000 because his death had been accidental. The accounting prepared by
Dick Bennett on August 30, 1993, that Lane turned over to Attorney Little, did
not reference a life insurance policy. When questioned about the policy, Dick
Bennett denied its existence.
In July 1996, Lane married Molly. On or around August 1, 1996, Ann
Kunz Bennett, now Lane’s sister-in-law, discovered, in her mother’s home in
Keene, an invoice for a life insurance policy underwritten by John Hancock
Mutual Life Insurance Company (John Hancock). She also found a cancelled

4
check showing payment of the premium for the policy through the end of 1990,
less than two years before her father’s death. Because Ann Kunz Bennett was
leaving the country the next day, she turned these items over to Lane and
Molly, and asked Lane if he could obtain further information about the policy
referenced on the invoice.
Lane contacted John Hancock by telephone to discover whether there
had been a policy in effect at the time of Robert Bennett’s death. He was
advised that the policy had been in effect, that a claim had been made on the
policy and that there was no named beneficiary on the policy. He later received
a letter advising him that any further information relating to the claim would
require a written request. During his testimony, Lane expressed concern that
if the policy had a value of $200,000, it might have an impact upon the estate’s
tax reporting obligations. On August 30, 1996, Lane wrote a letter to John
Hancock, on Lane & Bentley letterhead, requesting further information,
stating, in pertinent part:
This firm represents the Estate of Robert A. Bennett . . . who
deceased September 25, 1992.
In reviewing some of his records, we learned of the existence of this
policy upon which I understand a claim was made on or about
October 19, 1992. This letter is to request that a copy of the
beneficiary claim form, together with a copy of the cancelled check,
if available, be sent to me at your earliest convenience.
John Hancock sent the requested materials to Lane, including a copy of
a cancelled check in the amount of $100,000 paid to the order of Jane Bennett.
A stamp on the back of the check indicated that it had been deposited at the
First New Hampshire Bank in Hooksett. Additionally, John Hancock sent Lane
a “facility of payment” form which provided that, in the event of Robert
Bennett’s death without a designated beneficiary, the proceeds were to be paid
to the surviving spouse. Lane took the cancelled check to the First New
Hampshire Bank branch in Keene, and asked a customer service representative
if the stamp on the back indicated where the check had been deposited. A few
days later, the customer service representative not only told Lane where the
check had been deposited, but also gave him a copy of the deposit slip
indicating that the check had been deposited in a joint account of Jane Bennett
and Dick Bennett.
Without consulting Dick Bennett or Attorney Wolowitz, Lane turned
these materials over to Attorney Little. Several months later, in 1997, Attorney
Little initiated litigation seeking to remove Dick Bennett as trustee of his
mother’s trust. That litigation was settled in 2001.

5
In September 2001, Attorney Wolowitz notified the committee of possible
ethical transgressions by Lane. On December 15, 2003, the committee found
that Lane had violated the New Hampshire Rules of Professional Conduct and
recommended that he receive a six-month suspension from the practice of law.
We scheduled an evidentiary hearing before a referee. The committee argued
that Lane violated his duty of loyalty to the estate defined by Rules 1.9(c)(1)
and 8.4(c) when he disclosed information to a third party relating to his
representation of the estate.
After reviewing the evidence and hearing testimony from Lane, two
accountants and Ann Kunz Bennett, the referee concluded that the committee
had failed to prove any professional misconduct by clear and convincing
evidence. The committee now argues that we should not accept the report of
the referee and should hold that Lane violated Rules 1.9(c)(1) and 8.4(c).
In professional conduct matters, we defer to the referee’s factual findings
if supported by the record, but retain the ultimate authority to determine
whether, on the facts found, a violation of the rules governing attorney conduct
has occurred and, if so, the appropriate sanction. Shillen’s Case, 149 N.H.
132, 136 (2003). We review the referee’s factual findings to determine whether
a reasonable person could reach the same conclusion as the referee based
upon the evidence presented. Id. However, we review de novo to determine
whether the referee committed errors of law. Feld’s Case, 149 N.H. 19, 22
(2002), cert. denied, 540 U.S. 815 (2003).
We begin by noting that, throughout these proceedings, the parties and
tribunals below have continually cited and applied the most recent, but
inapplicable, version of the Rules of Professional Conduct. That version of the
Rules of Professional Conduct contains a Rule 1.9(c) which states:
A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in a
matter shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 or Rule 3.3
would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as Rule
1.6 or Rule 3.3 would permit or require with respect to a client.
The version of the Rule of Professional Conduct that applies to this case;
i.e., the version in effect in 1996 when the alleged violations occurred, contains

6
no section 1.9(c). Rather, the corresponding section for that period is Rule
1.9(b), which states:
A lawyer who has formerly represented a person in a matter
shall not thereafter:
. . . .
(b) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 would permit
with respect to a client or when the information has become
generally known.
There are two relevant differences between the old rule and the new rule:
(1) Rule 1.9(c)(1) provides an additional exception to the lawyer’s use of
information to the disadvantage of his client if that use is required by Rule 3.3;
and (2) Rule 1.9(c) prohibits an attorney from revealing information relating to
the representation of a former client, while Rule 1.9(b) only prohibits an
attorney from using such information to the disadvantage of a client. Because
the newer version was not in effect in 1996, we will apply the prior version of
the rules.
After oral arguments, we asked the parties to file supplemental briefs
addressing: (1) which party has the burden of proving the applicability or
inapplicability of Rule 1.6(b) of the Rules of Professional Conduct as an
exception to Rule 1.9(c); and (2) whether that burden must be met by clear and
convincing evidence or a preponderance of the evidence. We now turn to the
merits of the case.
II
The committee first argues that the referee erred in determining that the
committee had failed to prove, by clear and convincing evidence, that Lane
violated Professional Rule of Conduct 1.9(c)(1) when, in June 1996, he gave
Attorney Little a copy of the accounting that Dick Bennett, in his role as
executor of the estate of Robert Bennett, had prepared for the firm of Lane &
Bentley. We will consider this charge under the applicable rule, former Rule
1.9(b).
As discussed above, Attorney Little questioned Attorney Wolowitz about a
$121,000 contribution made to Jane Bennett’s trust fund purportedly from the
estate of Robert Bennett, in light of the fact that the estate had a reported net
value of $0. Attorney Wolowitz responded, stating:

7
Mrs. Bennett received the approximately $121,000.00 as a
result of the death of her husband. Her legal counsel at the time,
the firm of Lane and Bentley, prepared the probate filing and made
the determination not to include the accident insurance in Mr.
Bennett’s estate. If it is your opinion that this matter was
mishandled or should be further investigated, my client will, of
course, cooperate.
Attorney Little provided the letter to Lane who, in turn, provided a document to
Attorney Little that had been prepared by Dick Bennett.
The referee granted Lane’s requested ruling that:
[T]he information that Lane obtained from the file of the Robert
Bennett Estate did not constitute information relating to the
representation used to the disadvantage of the former client as
required by [Rule 1.9(b)]. In fact, the information that Lane
obtained from the file of the Robert Bennett Estate . . .
substantiated the claims of, and thereby worked to the advantage
of Lane’s former client, [Dick Bennett] as executor of the Estate of
Robert Bennett.
We agree with this ruling. Attorney Wolowitz’s letter indicates that Lane
& Bentley was aware of the accident insurance proceeds and that Lane &
Bentley chose not to include this insurance in the filing of the probate estate.
The document provided by Lane to Attorney Little shows that Dick Bennett, as
executor, reported two insurance policies valued at approximately $126,000,
leaving an estate potentially worth $121,000. Though it is not clear from the
document whether the two insurance policies were accident insurance policies,
it is obvious that Lane & Bentley chose not to include these insurance proceeds
in the probate filing.
The committee argues, however, that Lane’s answer to a question asked
during the hearing before the referee constituted an admission of a violation of
Rule 1.9(b). Lane was asked whether, had the accounting turned over to
Attorney Little showed that Dick Bennett had failed to account for a $200,000
life insurance policy, it could tend to prejudice Dick Bennett’s interests as
former executor of the estate. Lane replied:
It could have. I certainly had no information to indicate that there
was an additional two hundred thousand dollar life insurance
policy, but if – other than their recollection of a conversation they
had previously had with Dick Bennett. But, you know, if we had –
if, in fact, we had had evidence that there was a two hundred

8
thousand dollar life insurance policy, it certainly could have an
impact.
The committee argues that this statement is an admission that “demolishes the
respondent’s defense that he did not seek to use information to the
disadvantage of the former client.” We disagree that Lane’s statement admits
any action in violation of Rule 1.9(b).
Rule 1.9(b) requires a demonstration that the attorney used the
information to the disadvantage of his former client. At the time Lane turned
the accounting over to Attorney Little, he had no evidence, aside from other
persons’ memories of statements allegedly made by Dick Bennett, that a life
insurance policy existed. Further, the accounting itself contained no reference
to a life insurance policy.
Lane stated that if he had possessed evidence of a life insurance policy,
then turning over the document could potentially prejudice Dick Bennett’s
interests. Concrete evidence of the life insurance policy was not discovered,
however, until August 1996, when Ann Kunz Bennett delivered the invoice and
cancelled check to Lane. This occurred almost two months after Lane gave the
documents to Attorney Little. We disagree with the committee’s argument that
Lane’s statement constituted an admission of wrongful action. Thus, we
conclude that the committee failed to prove, by clear and convincing evidence,
that Lane violated Rule 1.9(b).
III
We next turn to the committee’s allegations that Lane violated Rule
8.4(c), which provides that it is professional misconduct for a lawyer to “engage
in conduct involving dishonesty, fraud, deceit or misrepresentation
. . . .” As discussed above, after Ann Kunz Bennett presented Lane with the
cancelled check and invoice from John Hancock, Lane, at her request,
contacted John Hancock seeking information about the existence of a life
insurance policy. Lane stated that, when he initially contacted John Hancock
by telephone, he was doing so as a favor to Ann Kunz Bennett. He also stated
that he did so expecting to learn that the life insurance policy had lapsed prior
to Robert Bennett’s death.
John Hancock confirmed that the policy was in effect at the time of
Robert Bennett’s death and that benefits had been paid. It required a written
request for any further information. Lane testified at the hearing that, having
learned that the policy was in effect, he was concerned about the impact these
unreported life insurance proceeds might have upon the tax reporting
obligations of the estate. On August 30, 1996, Lane wrote a letter, on Lane &
Bentley letterhead, requesting information from John Hancock stating, in

9
pertinent part: “This firm represents the Estate of Robert A. Bennett . . . who
deceased September 25, 1992.”
The committee alleged that Lane violated Rule 8.4(c) because his
statement “was false and misleading, in that it was intended to create a belief
on the part of the recipient that Lane was then authorized to act as the estate’s
attorney and was seeking information in that capacity.” Lane argued that the
estate was not closed and that Lane & Bentley still represented the estate,
pointing to the fact that the firm conducts a “twice-yearly audit of the State’s
unclaimed property lists for all of its estate clients.” The referee agreed and
granted Lane’s requested finding that he “committed no misconduct in
representing to Hancock that his firm represents the Estate of Robert Bennett.
Although the estate was closed, the law firm of Lane & Bentley continued to
maintain current, but inactive representation of the Estate at all times relevant
to this litigation.”
We need not determine whether Lane continued to represent the estate
simply by conducting these periodic audits. Even if his representation ended
when Lane completed his audit, the committee has not proven, by clear and
convincing evidence, its allegation that Lane’s statement “was false and
misleading, in that it was intended to create a belief on the part of the recipient
that Lane was then authorized to act as the estate’s attorney and was seeking
information in that capacity.” (Emphasis added.) Though intentional
misrepresentation violates Rule 8.4(c), see Douglas’ Case, 147 N.H. 538, 542
(2002), we have not had an opportunity to address whether negligent
misrepresentation constitutes a violation of Rule 8.4(c). Compare In re
Doughty, 832 A.2d 724, 735 (Del. 2003) (negligent misrepresentation can form
the basis for a charge of misconduct under the literal terms of 8.4(c)) with In re
Clark, 87 P.3d 827, 830 (Ariz. 2004) (violation of 8.4(c) requires knowing or
intentional conduct; therefore, mere finding of negligence is insufficient to
prove a violation).
Here, the committee charged Lane only with intentional
misrepresentation, nowhere mentioning the term “negligent.” Even assuming
Lane’s statement to John Hancock was false, the committee offers no other
evidence that Lane intended to mislead John Hancock. At most, the evidence
could support a finding that Lane erroneously believed that he represented the
estate. Erroneous belief does not constitute intentional misrepresentation.
Douglas’ Case, 147 N.H. at 543. Accordingly, we need not determine whether
negligent misrepresentation constitutes a violation of Rule 8.4(c) or whether
Lane’s erroneous belief was reasonable.

10
IV
We next turn to the committee’s allegation that Lane violated Rule
1.9(c)(1) when he provided Attorney Little with evidence of the existence of the
John Hancock life insurance policy. As before, we consider this charge under
former Rule 1.9(b); as discussed above, Rule 1.9(b) prohibits an attorney from
using information relating to the representation of a former client to the
disadvantage of that client, unless such use is permitted by Rule 1.6.
In response to his August 1996 letter, Lane received a “facility of
payment” form which provided that, in the event of Robert Bennett’s death, the
life insurance proceeds were to be paid to the surviving spouse. Lane also
received a copy of a cancelled check showing that $100,000 had been paid
directly to Jane Bennett. Lane testified that, once he learned that the
insurance proceeds amounted to only $100,000, and not $200,000, “there was
no further action that the Estate of Robert Bennett needed to take at that
point.” Nonetheless, he took the copy of the cancelled check to the First New
Hampshire Bank, and received a copy of a deposit slip showing that the check
had been deposited in a joint account of Dick Bennett and Jane Bennett. At
the same time, Dick Bennett was denying the existence of such a policy. Lane
then turned this information over to Attorney Little.
The committee argues that Lane turned confidential information relating
to his representation of his former client, Dick Bennett, over to the attorney
representing Lane’s wife, Molly Bennett Lane, who was engaged in an ongoing
dispute with her brother over the accounting of funds in their mother’s trust.
Such information indicated, among other things, that Dick Bennett may have
been lying about the existence of a life insurance policy. Thus, the committee
argues that Lane used information to the disadvantage of his former client. No
party argues that the information concerning the life insurance proceeds that
Lane turned over to Attorney Little did not relate to his representation of Dick
Bennett, and we agree with the committee that such information was used to
Dick Bennett’s disadvantage. We, thus, hold that that the committee proved by
clear and convincing evidence that Lane violated Rule 1.9(b) when he provided
Attorney Little with evidence of the existence of the John Hancock life
insurance policy, unless such use is permitted by Rule 1.6.
Lane argues that his actions were permitted by Rule 1.6(a), an exception
to Rule 1.9(b), which provides: “A lawyer shall not reveal information relating
to the representation of a client unless the client consents after consultation,
except for disclosures that are impliedly authorized in order to carry out the
representation . . . .” We have not heretofore been called upon to determine
which party has the burden of proving the applicability or inapplicability of
Rule 1.6 as an exception to Rule 1.9, and there is little authority concerning
this issue from other jurisdictions.

11
Maryland has, by rule, explicitly addressed the burden of proving an
affirmative defense or justification in a disciplinary proceeding. Maryland Rule
16-757(b) provides that “[a] respondent who asserts an affirmative defense or a
matter of mitigation or attenuation has the burden of proving the defense or
matter by a preponderance of the evidence.” Md. R. 16-757(b). A few other
jurisdictions have reached the same result through case law. See, e.g., Beery
v. State Bar of California, 739 P.2d 1289, 1293-94 (Cal. 1987) (attorney had
the burden to prove an exception to a professional misconduct charge for
entering into a prohibited business transaction with the client); In re
Disciplinary Proc. Against Cohen, 82 P.3d 224, 230-31 (Wash. 2004) (en banc)
(attorney had the burden to prove the applicability of an exception to a
disciplinary rule forbidding prejudicial withdrawals); Rodgers v. Commission
for Lawyer Discipline, 151 S.W.3d 602, 615-16 (Tex. App. 2004), review denied
(Mar. 11, 2005) (attorney had the burden to prove the applicability of an
exception to a disciplinary rule requiring attorneys to officially file their
advertisements).
The interest protected by Rule 1.6, the confidentiality of attorney-client
communications, serves as the foundation of the attorney-client relationship.
See N.H. R. Prof. Conduct 1.6 ABA cmt. (2005). “The client is thereby
encouraged to communicate fully and frankly with the attorney even as to
embarrassing or legally damaging subject matter.” Id. The protections
inherent in Rule 1.6 “not only facilitate[ ] the full development of facts essential
to proper representation . . . but also encourage[ ] people to seek early legal
assistance.” Id. Thus, “[t]he disclosure of client confidences is an extreme and
irrevocable act.” N.H. R. Prof. Conduct 1.6 N.H. cmt. (2005).
Given the importance of the interest at stake, it is neither unreasonable
nor unfair to place the burden of proof on Lane to show that his unauthorized
disclosure of such communications is justified by one of the exceptions to Rule
1.6. The allocation of the burden of proof expressed by Maryland Rule 16-
757(b) reflects the appropriate balance between the public’s interest in
assuring the integrity of attorneys, and the individual right of a respondent to
avoid discipline where there is justification for breaching the seal of
confidentiality. Accordingly, we hold that Lane was required to prove by a
preponderance of the evidence the applicability of Rule 1.6 as an exception to
Rule 1.9(b).
Lane argues that “[w]ere the estate’s lawyer not impliedly authorized to
disclose an executor’s fraudulent or other inappropriate conduct to the Court,
the lawyer would become the executor’s co-conspirator in perpetuating a fraud
on the estate and the Court.” (Emphasis added.) Even if we were to accept
Lane’s argument, he misses a key point. He did not disclose evidence to the
Court; rather, he turned evidence over to a party adverse to his former client.

12
Lane next argues that his actions were permitted by Rule 1.6(b), another
exception to Rule 1.9(b), which provides:
A lawyer may reveal [information relating to the representation of a
client] to the extent the lawyer reasonably believes necessary . . . to
prevent the client from committing a criminal act that the lawyer
believes is likely to result in death or bodily harm or substantial
injury to the financial interest or property of another . . . .
Lane contends that, at the time he turned the documents over to Attorney
Little, he was doing so to prevent Dick Bennett from committing the criminal
acts of general theft and of dealing with “property that has been entrusted to
him as a fiduciary . . . in a manner which he knows is a violation of his duty
and which involves substantial risk of loss to the owner or to a person for
whose benefit the property was entrusted,” RSA 638:11 (1996). The referee
found that Lane reasonably believed that his disclosure was necessary to
prevent future criminal activity by Dick Bennett which would cause substantial
injury to Jane Bennett. We conclude that the record reasonably supports this
finding. See Shillen’s Case, 149 N.H. at 136.
The Rules of Professional Conduct define “reasonably believes” to mean
that “the lawyer believes the matter in question and that the circumstances are
such that the belief is reasonable.” N.H. R. Prof. Conduct Terminology (2005).
The evidence indicates that Lane knew that Dick Bennett, along with Jane
Bennett, was a co-trustee of the trust created after Robert Bennett’s death.
Lane knew that in August 1995, Dick Bennett provided an accounting showing
that the trust had over $300,000 exclusive of certain real estate. However, in
March 1996, Lane learned from Ann Kunz Bennett that Dick Bennett was
concerned about the trust finances. In May 1996, Lane learned of another
accounting showing a balance of $65,917. In August 1996, Lane learned that
Ann Kunz Bennett had discovered an invoice and a cancelled check indicating
the existence of a John Hancock policy. Lane corroborated the existence of the
policy by contacting John Hancock. Lane also learned that the $100,000
proceeds from the policy had been paid into a joint account in the names of
Jane and Dick Bennett. Neither the existence of the policy nor the deposit into
the account had been disclosed by Dick Bennett in any of the accountings for
the estate or the trust. In addition, Lane knew that Dick Bennett had denied
the existence of the insurance policy.
At the time of the disclosure, Lane knew that there had been a large,
sudden and mysterious diminution of the trust assets between August 1995
and May 1996. Lane knew that there was a life insurance policy payable to
Jane Bennett, that Dick Bennett knew about the policy, that Dick Bennett had
not disclosed the existence of the policy, that the proceeds had been deposited

13
into a joint account to which Dick Bennett had access and that, in fact, Dick
Bennett had denied that there was any insurance policy. In light of the above
facts, we conclude that Lane proved by a preponderance of the evidence the
applicability of Rule 1.6(b) as an exception to Rule 1.9. Accordingly, the
evidence supports the referee’s finding that Lane reasonably believed that his
disclosure was necessary to prevent future criminal activity by Dick Bennett,
see RSA 638:11, I.
In concluding that Lane could not have had a subjective belief that his
disclosure was required to prevent the commission of a crime because he was
aware of a possible innocent explanation for Bennett's conduct, the dissent
places the bar too high. Lane's reasonable belief need not have been beyond a
reasonable doubt. Lane's belief could well have been founded upon a
conclusion that Dick Bennett was likely committing a crime, that of taking
money from his mother or the estate, and would continue to do so.
Similarly, the dissent's conclusion that Lane could not have formed a
subjective belief that Dick Bennett was currently or would in the future engage
in criminal activity because all the evidence of suspected wrongdoing was
circumstantial is without merit. Crimes can be established beyond a
reasonable doubt with circumstantial evidence alone. Therefore, a mere
reasonable belief based upon the preponderance of the evidence that a crime is
now or will likely be committed could certainly serve as the basis for a
subjective belief.
Finally, the dissent’s reliance upon the statute of limitations to argue
that Lane's actions did not help uncover a crime is misplaced. While the
limitations period here was only one year, RSA 625:8, III(a) specifically allows
prosecution of a crime, even when the time period has run, where “a material
element of [the crime] is either fraud or a breach of fiduciary duty.” Because
RSA 638:11, I, applies only in cases where a person “deals with property that
has been entrusted to him as a fiduciary . . . in a manner which he knows is a
violation of his duty and which involves substantial risk of loss to the owner or
to a person for whose benefit the property was entrusted,” the exception in RSA
625:8, III(a) would apply.
V
Lane lastly argues that his actions did not violate Rule 1.9(b) because his
disclosure was required by Rule 3.3(a)(3) and expressly authorized by RSA
311:6 (2005). With respect to the first argument, we have already stated that
the version of Rule 1.9 at issue here does not list Rule 3.3 as an exception.
Therefore, Rule 3.3 does not apply to this case and the committee erred by
considering it.

14
In light of our conclusion that Lane’s actions were permitted by Rule
1.6(b), we need not address whether RSA 311:6 authorized his conduct.
Petition denied.
BRODERICK, C.J., and NADEAU and DUGGAN, JJ., concurred;
DALIANIS, J., concurred in part and dissented in part.
DALIANIS, J., concurring in part and dissenting in part. I agree with the
majority that Lane did not violate New Hampshire Rule of Professional Conduct
(Rule) 1.9 concerning the disclosure of the information obtained from the file of
the Robert Bennett estate, and did not violate Rule 8.4. I also agree with the
majority that Lane used the information concerning the life insurance proceeds
to Dick Bennett’s disadvantage in violation of former Rule 1.9(b). I disagree
with the majority, however, that Lane proved by a preponderance of the
evidence that his actions were permitted by Rule 1.6(b), which provides:
A lawyer may reveal [information relating to the
representation of a client] to the extent the lawyer reasonably
believes necessary . . . to prevent the client from committing a
criminal act that the lawyer believes is likely to result in death or
bodily harm or substantial injury to the financial interest or
property of another.
N.H. R. Prof. Conduct 1.6 (2005) (emphasis added). The referee found that
Lane reasonably believed that his disclosure was necessary to prevent future
criminal activity by Dick Bennett which would cause substantial injury to Jane
Bennett. The record, however, does not reasonably support this finding. See
Shillen’s Case, 149 N.H. 132, 136 (2003) (we review the referee’s factual
findings to determine whether a reasonable person could reach the same
conclusion as the referee based upon the evidence presented).
We have yet to consider the contours of the phrase “reasonably believes”
in the context of Rule 1.6(b). As the majority recognizes, the Rules of
Professional Conduct define “reasonably believes” to mean that “the lawyer
believes the matter in question and that the circumstances are such that the
belief is reasonable.” N.H. R. Prof. Conduct Terminology (2005) (emphasis
added). The Rules further define “believes” as denoting “that the person
involved actually supposed the fact in question to be true.” Id. Rule 1.6(b)
thus contains both subjective and objective components. See id.; N.H. R. Prof.
Conduct 1.6(b). The lawyer must “actually suppose [the matter in question] to
be true” and the circumstances must be such that the belief is reasonable.
N.H. R. Prof. Conduct Terminology.

15
The facts cannot reasonably support an objective “reasonable belief” that
the disclosure was necessary to prevent a future criminal act by Dick Bennett.
First, the “facility of payment” provision contained in the life insurance policy
in question stated: “Any amount due for loss of life will be paid as follows: At
your death, it will be paid to your surviving spouse . . . .” (Emphasis added.)
The copy of the cancelled check that Lane received from John Hancock
demonstrated that the insurance proceeds were, indeed, paid directly to Jane
Bennett on October 19, 1992, in accordance with the beneficiary designation
incorporated within the John Hancock life insurance policy. The deposit slip
that Lane received from the First New Hampshire Bank demonstrated that the
funds were deposited by Jane Bennett on October 22, 1992, in a joint account
held by herself and Dick Bennett, three years before Jane Bennett was declared
legally incompetent. Nothing in this set of facts implicates theft of property or
the mishandling of property that had been entrusted to Dick Bennett as a
fiduciary. While Dick Bennett’s denials of the existence of the life insurance
policy might demonstrate a lack of good character, they do not demonstrate the
commission of a criminal act and no reasonable person could believe so.
Furthermore, the majority did not acknowledge significant pieces of
testimony in evaluating whether Lane subjectively “believed” that his disclosure
was necessary to prevent the commission of a crime. At the hearing before the
Supreme Court Committee on Professional Conduct (committee), Lane agreed
that even after he obtained the information concerning the life insurance
proceeds, he had “no way of knowing what had happened to that money . . .
whether Jane Bennett had given it away to charity, or spent it, or whether Dick
Bennett had spent it.” Lane was thus aware of an ostensibly innocent
explanation for the disposition of the life insurance proceeds, which were not
trust assets, at the time of his disclosure. Furthermore, at the hearing, Lane
characterized the evidence of criminal activity, at the time of his disclosure, as
“circumstantial.” Lane’s testimony suggests that he did not subjectively believe
that his disclosure was necessary to prevent the commission of a crime, as he
did not actually suppose the matter in question to be true. See id.
Accordingly, the record cannot reasonably support the referee’s finding that
Lane “reasonably believed” such disclosures were necessary to prevent Dick
Bennett from committing a crime.
Lane, however, asserts that his conduct did help uncover a crime,
pointing to evidence discovered long after the events in question that suggests
Dick Bennett may indeed have been mishandling funds. I am not persuaded
by this argument. Rule 1.6 looks to the evidence available at the time Lane
made the disclosure, not evidence that is later discovered. Even so, Lane
suggested only that he made the disclosure to prevent Dick Bennett from
committing a misdemeanor violation of RSA 638:11 (1996). Any possible
violation of RSA 638:11, however, occurred approximately three years before
the disclosure, and could not have been prosecuted at the time of disclosure

16
due to the statute of limitations. See RSA 625:8, I (Supp. 2005). Lane has
failed to present with particularity any future crime that could have been
prevented by the disclosure.
I am also concerned about Lane’s failure to act within the spirit of Rule
1.6. One comment to Rule 1.6(b) states that “[w]here practical, the lawyer
should seek to persuade the client to take suitable action” before disclosure.
N.H. R. Prof. Conduct 1.6 ABA cmt. (2005); cf. Carpenito's Case, 139 N.H. 168,
173 (1994) (although the text of each rule is authoritative, the comments are
intended as guides to interpretation). Implicit in this comment is the
aspiration that, where practical, members of the New Hampshire Bar will
proceed in the manner least damaging to the attorney-client relationship. In
this respect, Lane should have at least attempted to persuade Dick Bennett to
take “suitable action” before he disclosed the information concerning life
insurance proceeds to Attorney Little. Instead, the referee found that Lane
never made any attempt to contact Dick Bennett with the information
concerning life insurance proceeds before disclosing that information to
Attorney Little. Moreover, Lane did not make any argument and there is no
evidence that suggests that it was impractical to attempt to persuade Dick
Bennett to take suitable action prior to disclosure.
Given my view that the Rule 1.6(b) exception does not apply, I will
address Lane’s argument that his actions did not violate former Rule 1.9(b)
because his disclosure was required by Rule 3.3. As the majority noted, former
Rule 1.9(b) does not contain an exception for Rule 3.3. However, as the
committee has proceeded in this case as if an exception for conduct required by
Rule 3.3 does apply, I will address Rule 3.3. Rule 3.3(a)(3) provides that a
lawyer shall not knowingly “offer evidence that the lawyer knows to be false. If
a lawyer has offered material evidence and comes to know of its falsity, the
lawyer shall take reasonable remedial measures.” Lane argues that turning
over evidence to Attorney Little constituted a reasonable remedial measure. I
disagree.
Lane’s law firm represented Robert Bennett’s estate, with Dick Bennett
as executor, before the probate court. Lane stated that, once he learned that
the life insurance proceeds were only $100,000, he had no further concern for
the estate of Robert Bennett. Thus, the evidence of the life insurance proceeds
would not have been material to the representation before the probate court.
Moreover, even if such evidence had been material, it is not a reasonable
remedial measure to turn that evidence over to an attorney who is involved in
an ongoing dispute with the former client. Rule 3.3 deals with “Candor Toward
the Tribunal.” As the committee points out, if Lane were truly concerned with
taking remedial measures he would have contacted the probate court.

17
Finally, Lane argues that his actions were expressly authorized by RSA
311:6 (2005), which provides that every attorney permitted to practice in the
State of New Hampshire “swear or affirm that you will do no falsehood, nor
consent that any be done in the court, and if you know of any, that you will
give knowledge thereof to the justices of the court, or some of them, that it may
be reformed.” Lane did not, however, turn evidence over to the justices of the
court; rather, he turned the evidence over to an attorney adverse to his former
client.
Having respectfully disagreed with the majority by concluding that Lane
violated a provision of the Rules of Professional Conduct, I now address the
committee’s request for a six-month suspension. The committee accurately
describes the circumstances of this case: Lane “found himself caught up in an
intra-familial dispute involving a former client of his firm and the woman who
would become [his] wife. He went beyond the bounds of professional conduct
. . . .” I disagree, however, with the committee’s requested sanction.
In my view, the committee has proven one of its three allegations by clear
and convincing evidence. Lane, prior to this event, however, had practiced law
for twenty-one years without any claims against him of professional
misconduct. The committee does not allege that Lane failed to fully cooperate
with the committee’s inquiry. In Wood’s Case, we concluded that public
censure was the appropriate remedy for an attorney who violated Rule 1.9(b),
and who, by default also violated Rule 8.4(a), which simply states that it is
professional misconduct to violate the Rules. Wood’s Case, 137 N.H. 698, 707
(1994). I would, thus, submit that public censure would satisfy the stated
purposes of protecting the public confidence in the bar, preserving the integrity
of the legal profession, and deterring future misconduct. See Welts’ Case, 136
N.H. 588, 593 (1993).