Appeal of Hoppock

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Professional Conduct Committee
Case No. LD-2024-0005
Citation: Appeal of Hoppock, 2025 N.H. 18

APPEAL OF JOSEPH S. HOPPOCK, ESQUIRE

Argued: November 13, 2024
Opinion Issued: April 24, 2025

Elizabeth M. Murphy, assistant disciplinary counsel, of Concord, on the
brief and orally, for the Attorney Discipline Office.

Preti Flaherty Beliveau & Pachios, PLLP, of Concord (William C. Saturley
and Kat Mail on the brief, and Kat Mail orally), for the respondent.

COUNTWAY, J.

[¶1] The respondent, Joseph S. Hoppock, appeals orders of the Supreme
Court Professional Conduct Committee (PCC) ruling that: (1) Hoppock violated
Rule 4.4(a) of the New Hampshire Rules of Professional Conduct; and (2) the
appropriate sanction is “a six-month suspension from the practice of law, two
months of which are imposed and four months of which are stayed . . . for two
years on [specified] conditions.” We affirm.

[¶2] The following facts were found by the hearing panel, see Sup. Ct. R.
37(4)(c), and upheld by the PCC, or relate the contents of documents in the
record before us. Hoppock represented a party with whom the complainant
was involved in a dispute over the registration of a trade name. In June 2019,
the complainant filed a grievance with the Attorney Discipline Office (ADO)
regarding a letter, dated May 20, 2019, that she received from Hoppock. The
ADO subsequently docketed the grievance as a complaint.

[¶3] The letter stated that the complainant had defamed Hoppock’s client
on social media and warned, “As you will soon find out, legal consequences
shall befall you because of your reckless defamatory conduct.” The letter
continued, in pertinent part, to state:

[L]et me be very clear. I will not get into it with you and your
ill, immature feelings toward [Hoppock’s client] . . . which have
now landed you in a difficult legal position.

What I will do is sue you for negligently or intentionally (or very
recklessly) publishing falsely defamatory statements concerning
[the client] to third parties . . . .

....

. . . These are actionable statements for which [the client]
demands Two Hundred Fifty Thousand ($250,000.00) Dollars in
order to settle this problem, which I remind you is totally of your
own making.

....

I will file the Complaint with the Court by June 1st if [the
client] has not received your check, in good funds, by that date.
Let me be very clear about one more point: You should be very
concerned you will have “a lot to lose” by saying the things you
have said about [the client]; we will pursue you until you have
nothing left, except assets exempt from judicial execution.

....

In the event you decline [the client’s] generous settlement
proposal, you are advised and warned not to destroy or alter, in
any manner, any evidence that may be subject to or pertinent to
any related claims of [the client]. . . .

I strongly encourage you to pass this letter on to your
insurance agent and attorney, without delay.

(Citation omitted.)

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[¶4] The complainant received a second letter, dated June 6, 2019, along
with a draft release and settlement agreement. The second letter essentially
informed the complainant that if she did not settle, she would have to pay
“enormous legal fees.” (Quotation omitted.)

[¶5] Following the ADO’s issuance of the notice of charges, the hearing
panel was tasked with determining whether Hoppock’s letters violated Rule of
Professional Conduct 4.4(a), which provides: “In 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(a). The panel concluded that “the language and style
contained in” the May 20 letter “was obnoxious and rude and should not be
encouraged,” but that the ADO had not proved a violation of Rule 4.4(a).1

[¶6] On March 17, 2022, the PCC issued a notice of oral argument
regarding the hearing panel report. The PCC subsequently rejected Hoppock’s
contention that the PCC lacked authority to request the parties to appear for
oral argument when neither party requested it and stipulations had not been
filed. The PCC then reiterated its request for the parties’ appearance at oral
argument and stated that it “would like to hear from [Hoppock] and the ADO
on” six specified questions.

[¶7] Following oral argument, the PCC issued an order finding that the
hearing panel “erred in finding no professional misconduct with regard to Rule
4.4(a) of the New Hampshire Rules of Professional Conduct in this matter.”
Focusing on the rule’s use of the disjunctive “or,” the PCC concluded that it
prohibits two distinct types of action that have the consequence of burdening a
third person: (1) “any action if the lawyer knows . . . that the action has the
primary purpose to . . . burden a third person”; and (2) “any action . . . if it is
obvious that the action has the primary purpose to . . . burden a third person.”
(Emphases added and quotations omitted.) The PCC interpreted the first type,
in which the lawyer “knows” the action’s primary purpose, “as addressing the
lawyer’s subjective mental state,” and the second, “obvious” type, as involving
an objective standard.

[¶8] The PCC determined that the hearing panel did not appear to have
considered or made factual findings related to the objective, “obvious” inquiry.
It concluded, however, that a remand to the hearing panel for further
factfinding was unnecessary and that it could determine whether Hoppock
violated the rule based on “the uncontested contents and context of the May
20, 2019, letter.” The PCC concluded that “it was objectively obvious that the
primary purpose of Attorney Hoppock’s May 20, 2019, letter to [the
complainant], an unrepresented party, threatening financial ruin, was to

1 The parties agree that the ADO did not request the PCC’s review of the hearing panel’s decision.

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burden [the complainant] through intimidation.” Accordingly, the PCC
remanded the matter to a new hearing panel for a hearing on sanction only.

[¶9] The second hearing panel determined the appropriate sanction was a
six-month suspension stayed, on certain conditions, for two years. Both
parties requested the PCC’s review of that decision. The PCC determined that
the appropriate sanction was a six-month suspension from the practice of law,
with two months imposed and four months stayed, on specified conditions, for
two years. This appeal followed.

[¶10] This case comes before us not on a petition for sanctions filed by
the PCC, but as an appeal from a finding of a violation and imposition of
sanctions by the PCC. In a case with the same procedural posture, we
assumed, without deciding, that our usual standard of review for PCC petitions
applied when the parties did not argue for a different standard. See Bruzga’s
Case, 162 N.H. 52, 57 (2011). Because the parties do not argue otherwise in
this case, we will do the same. “In attorney discipline matters, we defer to the
PCC’s factual findings if supported by the record, but retain ultimate authority
to determine whether, on the facts found, a violation of the rules governing
attorney conduct has occurred and, if so, the sanction.” Id. “The PCC’s
findings of violations of the Rules must be supported by clear and convincing
evidence.” Id.

I. The PCC’s Authority to Order Oral Argument

[¶11] Hoppock first argues that the PCC exceeded its authority when it
ordered oral argument in this matter. He contends that Supreme Court Rule
37A(III)(d)(2)(A) does not “empower the PCC to direct parties to appear for oral
argument on matters unrelated to stipulations, where neither party has
requested oral argument.” Rule 37A(III)(d)(2)(A) provides:

Whether memoranda are filed or not, either disciplinary counsel or
respondent may . . . [within 15 days of the date of the hearing
panel report] request oral argument before the [PCC] to address
any issues in the hearing panel reports, stipulations or record
agreed to by the parties. The [PCC] may, in its discretion, direct
the parties to appear before it to address any issues raised in
dispositive or partial stipulations, as set forth in Rule
37A(III)(aa)(C).

Sup. Ct. R. 37A(III)(d)(2)(A).

[¶12] We disagree that the PCC’s authority to order oral argument is
limited by Rule 37A(III)(d)(2)(A). That provision is found in the section of Rule
37A governing formal proceedings. See Sup. Ct. R. 37A(III). The preface to that
section states that “[a]s good cause appears and as justice may require, the

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[PCC] may waive the application of any rule under this section.” Id. Thus, the
preface confirms the interpretation evinced by the substance of the rules
themselves: the provisions in Rule 37A(III) — including Rule 37A(III)(d)(2)(A) —
are merely procedural and do not establish or delimit the PCC’s jurisdiction or
authority. Cf. Appeal of Carreau, 157 N.H. 122, 123 (2008) (distinguishing
between procedural requirements, which the court has discretion to waive, and
“[s]tatutory . . . requirements relative to the vesting of jurisdiction,” for which
the court lacks authority to create an exception (quotation omitted)). Instead,
the PCC’s authority is conferred in Rule 37(3)(c), which provides, in relevant
part:

The [PCC] shall have the power and duty:

....

(3) To consider hearing panel reports and written memoranda
of disciplinary counsel and respondents. To conduct oral
arguments in which disciplinary counsel and each respondent are
given ten (10) minutes to address the findings and rulings
contained in the hearing panel reports. After consideration of oral
arguments, hearing panel reports, transcripts of hearings before
hearing panels and memoranda, to determine whether there is
clear and convincing evidence of violations of the rules of
professional conduct. To remand complaints to hearing panels for
further evidentiary proceedings. To dismiss grievances or
complaints, administer a reprimand, public censure or a
suspension not to exceed six (6) months.

Sup. Ct. R. 37(3)(c). We conclude that the power conferred in Rule 37(3)(c)
includes the power to direct the parties to appear for oral argument whenever
the PCC determines oral argument will assist it “to determine whether there is
clear and convincing evidence of violations of the rules of professional
conduct.” Id. Moreover, we conclude that the PCC’s authority to conduct oral
argument includes the authority to direct questions to the parties. Thus, to
the extent Hoppock challenges that the PCC specified questions to be
addressed at oral argument, he has failed to persuade us that the PCC
exceeded its authority.

II. Finding of Violation

[¶13] Hoppock next argues that the PCC erred in applying Rule 4.4(a)’s
objective, “obvious” standard. We first determine what the standard means.
The ethics committee comment to New Hampshire’s Rule of Professional
Conduct 4.4(a) notes that it “substantially differs from the [American Bar
Association] model rule by using the word ‘obvious’ to set a higher objective
standard.” N.H. R. Prof. Conduct 4.4, Ethics Committee Comment.

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Construing the objective standard as a reasonable person standard, we
conclude that a lawyer violates Rule 4.4(a) under this variant if it would be
obvious to a reasonable person that the lawyer’s action had “the primary
purpose to embarrass, delay or burden a third person.” N.H. R. Prof. Conduct
4.4(a).

[¶14] Relying on principles of contract interpretation, Hoppock argues
that the operative question is “how to objectively assess [his] intent” when he
wrote the letter. He therefore contends that the “PCC needed to consider the
intent of the Letter from the perspective of a reasonable person ‘in . . . [his]
position.’” Rule 4.4(a), however, does not contain the language “obvious to a
person in the position of the lawyer,” and “[w]e will not add words to the plain
language of a rule,” State v. Paul, 176 N.H. 262, 265 (2023).

[¶15] Hoppock next argues that the PCC’s finding of a Rule 4.4(a)
violation under the objectively obvious standard is contrary to factual findings
made by the hearing panel. We disagree. The PCC correctly concluded that a
determination of objective obviousness in this case required only the
application of that standard “to the uncontested contents and context of the
May 20, 2019, letter.” With respect to context, an important fact was, as the
PCC repeatedly noted, that the complainant was an unrepresented party. We
agree with the PCC’s conclusion that “[d]rafted as it was to an unrepresented
party, it is objectively obvious that the primary purpose of Attorney Hoppock’s
May 20, 2019 letter was to burden [the complainant] within the meaning of
Rule 4.4(a).” Or, stated differently, it would be obvious to a reasonable person
that the primary purpose of the letter was to burden the complainant through
intimidation. Because we agree with the PCC that a violation of Rule 4.4(a)
could be found on application of the objective standard to “the uncontested
contents and context” of the letter, we necessarily also reject Hoppock’s
argument that the PCC erred in failing to remand to the hearing panel for
further factfinding.

III. Sanction

[¶16] Hoppock next argues that even if we affirm the finding that he
violated Rule 4.4(a), we should vacate the PCC’s sanction order. Following our
practice for determining an appropriate sanction, the PCC looked to the ABA
Standards for Imposing Lawyer Sanctions (Standards) for guidance. See
Mesmer’s Case, 173 N.H. 96, 108 (2020) (noting that “[a]lthough we have not
adopted the [Standards], we look to them for guidance”). In accordance with
the Standards and our precedent, the PCC first determined the appropriate
“baseline” sanction by considering: “(1) the ethical duties violated by the
lawyer, (2) the lawyer’s mental state at the time of the violations, and (3) the
extent of the actual or potential injury caused.” Id. at 108-09.

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[¶17] The PCC determined, under the second Standards factor, that
Hoppock’s mental state was “knowingly,” and accordingly found that the
appropriate baseline sanction was suspension. See ABA Standards for
Imposing Lawyer Sanctions § 6.22 (2005). Hoppock argues that this
determination contradicts the hearing panel’s finding — which the PCC did not
reverse — “that the ADO failed to prove [he] acted knowingly when authoring
the Letter.” He contends that his conduct should instead be characterized as
negligent, leading to a baseline sanction of either reprimand or admonition.
See id. §§ 6.23, 6.24.

[¶18] For purposes of this opinion, we will assume, without deciding, that
Hoppock is correct in characterizing his conduct as negligent. Nevertheless, in
light of the aggravating factors found by the PCC — most significantly,
Hoppock’s “stipulation to a similar violation of the same rule less than two
years prior to him composing the letter to [the complainant],” for which
violation, the record reflects, he received a reprimand — we conclude that the
suspension imposed by the PCC is the appropriate sanction. See id. § 8.2
(stating that “[s]uspension is generally appropriate when a lawyer has been
reprimanded for the same or similar misconduct and engages in further acts of
misconduct that cause injury or potential injury to a client, the public, the
legal system, or the profession”); see also Bruzga’s Case, 162 N.H. at 57 (noting
this court’s ultimate authority to determine the sanction for lawyer
misconduct). The hearing panel made a specific finding, with which the PCC
agreed, that “Hoppock’s conduct caused actual and potential injury to the
complainant, the legal system, and the reputation and standing of the
profession.” Although Hoppock disagrees with this finding, he has failed to
persuade us that it is unsupported by the record. See Bruzga’s Case, 162 N.H.
at 57.

[¶19] Hoppock next argues that the PCC erred in ignoring two mitigating
factors that the hearing panel found persuasive, and that both the PCC and the
hearing panel ignored two other mitigating factors. The hearing panel found
significant “the burden imposed on Hoppock by the length of the disciplinary
process.” The PCC, however, found the delay in processing this case neither
aggravating nor mitigating. Although Hoppock argues that “[d]elay should be
rejected as a mitigating factor only when” it is the lawyer’s fault, the case he
cites in support — Douglas’ Case, 156 N.H. 613 (2007) — does not so hold.
The PCC found the delay in this case attributable to relatively neutral causes —
“scheduling preferences, seeking appellate review, and the preference for an in-
person hearing during the Covid pandemic.” “Under these circumstances, we
decline to find that the delay in disciplinary proceedings presents a mitigating
factor.” Id. at 622.

[¶20] The hearing panel also noted that it was “cognizant of the impact
on Hoppock’s livelihood a suspension would carry and wishes to avoid that
impact if possible.” Hoppock argues that the PCC ignored this “key mitigating

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factor[] considered important by the [h]earing [p]anel.” The hearing panel,
however, did not identify its concern as a mitigating factor and the ADO
correctly points out that the impact of a suspension is not listed in the
Standards as a mitigating factor that courts have recognized. See Standards,
supra § 9.32 & cmt. We conclude that the PCC did not err in failing to
consider the financial impact of a suspension as a mitigating factor.

[¶21] Hoppock further argues that two other mitigating factors should
have been considered: “absence of a dishonest or selfish motive and character
or reputation.” Having reviewed the record, we conclude that the evidence
presented did not compel a determination that Hoppock did not act selfishly or
that his character and reputation constituted a mitigating factor in this matter.
In particular, we are not persuaded by Hoppock’s argument that “it is difficult
to conceive of how writing the Letter could have been motivated by selfishness.”
In its report at the violation stage of the proceedings, the hearing panel noted
that Hoppock testified “that many of his clients want to hire him because he is
aggressive and knows the law. His aggressive style usually doesn’t stop until
the case ends.” Writing the letter at issue maintained the “aggressive style” for
which some clients choose to hire him. Thus, it is not difficult to conceive how
he might have benefitted from that action.

[¶22] Finally, Hoppock argues that the sanction imposed on him “is out
of proportion with the alleged misconduct—and with sanctions imposed in
comparable cases.” We disagree. “In deciding the appropriate sanction,” each
case is considered “on its own facts and circumstances.” Douglas’ Case, 156
N.H. at 621 (quotation omitted). The PCC considered, as comparable cases,
Kalil’s Case, 146 N.H. 466 (2001), and Robertson’s Case, 137 N.H. 113 (1993).
In comparing those cases to this matter, the PCC found it significant that
“Hoppock violated Rule 4.4(a) with a single, considered communication to an
unrepresented party, with less aggressive language than in Kalil but after
having recently admitted violating the same Rule.” We conclude that the PCC
carefully considered and distinguished the comparable cases, and we find no
error in its analysis.

[¶23] “We retain the ultimate authority to determine the sanction for a
violation of the rules governing attorney conduct.” Bruzga’s Case, 162 N.H. at
60. “In determining the proper sanction, we remain mindful that the purpose
of attorney discipline is not to inflict punishment, but rather to protect the
public, maintain public confidence in the bar, preserve the integrity of the legal
profession, and prevent similar conduct in the future.” Mesmer’s Case, 173
N.H. at 108 (quotation omitted). Because the sanction imposed by the PCC
serves these purposes, we affirm it in all respects. We emphasize that this
sanction is not intended to chill zealous advocacy; rather, it addresses conduct
that exceeded the bounds of zealous advocacy and entered the territory of
attorney misconduct. See Robertson’s Case, 137 N.H. at 118 (sanction
warranted where “[t]actics undertaken by [the attorney] in pursuing a

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resolution of the litigation were . . . beyond the bounds of acceptable
professional conduct”).

[¶24] For the foregoing reasons, we affirm the finding that Hoppock
violated Rule 4.4(a) and the sanction imposed. Because we have neither
referred to, nor relied upon, those portions of Hoppock’s brief and appendix
that the ADO has moved to strike, the ADO’s motion to strike is moot.

Affirmed.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

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