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NO WITNESS – NO CASE (Installment 3)
PART 1 - NEW HAMPSHIRE’S (OCTOBER 13, 2009 FORENSIC EVALUATION REPORT) DEFENDS ITS BAR INSTEAD OF ITS CONSTITUTION AND RULE OF LAW
NOTE: If you are a new Reader of this series "NO WITNESS-NO CASE", you may want to being with reading the two prior installments before you read this one. If you are a serial Reader then you will note that this installment picks up from the State’s REPORT testimony to the Laconia District Court in re: 09-cr-1293-4 and 09-cr-4147 (in both cases the DEFENDANT is charged with misdemeanor criminal trespass)
State’s testimony:
"Consistent with an overarching paranoid theme of a conspiracy to harm her and her family, individuals that she has encountered become imposters, frauds, schemers, or a least contaminated or compromised parties to the conspiracy. She lacks the insight, and her thinking is rigid and fixed with respect to the delusions".
The above testimony can be located on page 12 (first full paragraph of the State’s (REPORT) that was offered as its testimony in re: State v Jean Allan 09-cr- 1293-94 and 09-cr-4147 Laconia District Court (LDC) Laconia, New Hampshire).
The State continued to testify to the LDC: "As just one example, she has worked with many attorneys. She reports that virtually all were either compromised or ultimately refused to work with her, to the point that she could not retain an attorney. The idea that there might be something about her that has caused difficulties with her attorneys does not seem to have crossed her mind".
The Opening Statement Introduction has laid out Public Defender Eric Wolpin’s representation of DEFENDANT. The Readers can make their own judgments if they would have wanted Attorney Wolpin to have been assigned to defend them.
PART 1 – "HER LAWYERS" DEVINE MILLIMET STAHL & BRANCH; SHAHEEN & GORDON; MCLANE GRAF LAW OFFICES AND THE SO-CALLED 1989 JUDGMENT
With respect the State’s reference to "her attorneys" incorporated into the above REPORT statement, this installment will concentrate on the Devine Milliment Law Office with respect to its representation of DEFENDANT in the Alan Teale/First Equity Ins./Ecotech Fraud purchase agreement. (Upcoming installments will cover Devine Millimet Law Office and its association with other Law Offices that represented the DEFENDANT in related civil matters that the State also globally defends as "her attorneys".)
And, as before, in this installment, and in other upcoming installments that FEATURE "her attorneys", which have been reported within the four corners of Sources of Information 6. the Readers can determine whether the State in its statement to the LDC to wit: "The idea that there may be something about her [read ‘paranoid delusions’] that has caused difficulties…. is in fact the truth of the situation or, perhaps the Reader may conclude that the State, by and through its REPORT, and its Prosecutor Robert Libby’s testimony, was in fact making a great effort itself to ‘bamboozle’ the court and to cover up for its fellow New Hampshire Bar Members (which will be further described in this series). (The ABA Model RULES of ‘Candor to the Tribunal’ and ‘fraud upon the court’, by its officers will be reviewed in an upcoming installment)
In order to understand any relationship it is instructive to know how the parties met. In this instant relationship DEFENDANT was introduced to the Devine Millimet Stahl & Branch [DEVINE] law firm located in Manchester, NH, in 1987, by Dr. Reginald Danboise. DEFENDANT, and her affiliated companies, required corporate counsel since their previous counsel McLane Graf Law Office was no longer available to represent them.
So, with respect to the First Equity Insurance fraud, which occurred between the dates of August 1990 and Spring of 1991, DEFENDANT and her affiliated companies had been clients of DEVINE for already approximately four years. On page 5 –Sources of Information 6) DEFENDANT wrote:
- "After the Iuele financing fell through, Devine Millimet introduced me to another client, Martyn Redman. At first Mr. Redman claimed to be representing a company that had major real estate holdings in Portugal. He was also affiliated with a financing group located in Garden City, New York. That company was called Metro Funding and the principal was Benny Maniscalco. Redman also claimed to represent a company called Consolidated Funding, and another called Parthenon."
- "After several false starts Mr. Redman finally settled on a purchase and sales agreement where the purchaser would be a company called First Equity Insurance Company, and was headquartered in Dallas, Texas. Devine Millimet was in the process of doing the legal work for the insurance company’s FORM A requirements. As part of the purchase agreement First Equity pledged publicly traded stock from its capital surplus in the amount of one million dollars. Devine lawyers informed BAM [one of DEFENDANT’s affiliated companies] that Merrill Lynch had verified the pledged stock in a company called Ecotech as being valued at around one million dollars." (It is unfortunate that DEFENDANT did not include the dates of the purchase and sales agreements into the ‘case study’, but the record will show that negotiations began around August-September 1990. The first purchase agreement included a cash requirement to be held in escrow as liquidated damages in the event First Equity failed to close.)
- "On or about February 1991, BAM, Senter, and me [DEFENDANT] as guarantor entered into superseding agreements with all the creditors, secured and unsecured, of the High Birches project. All creditors agreed upon a schedule of replacement assets in lieu of their existing mortgages. The terms of the Creditors’ Agreement were found to be satisfactory to First Equity. Devine Millimet represented First Equity, my companies, and me personally in the sale Agreement."
On page 6 – Sources of Information 6 DEFENDANT wrote:
- "By March 1991, it was clear that First Equity had defaulted. Mr. Redman had disappeared. In accordance with the purchase and sales agreement, I [DEFENDANT] took the pledged ECOTECH stock to Merrill Lynch with instructions to sell it in tranches so as not to flood the market. I had been told that the stock was lightly traded. The first tranche sold and the funds were earmarked for the creditors’ escrow account that was to have been set up at Merrill…."
- "A Mr. Miller, who had claimed to Devine Millimet that that stock had been stolen, stopped the second tranche sale of ECOTECH stock. Several conversations ensued between Devine Millimet lawyers and Mr. Miller who had also identified himself as an attorney. Merrill then informed me that the market had collapsed for the ECOTECH stock. I immediately filed a formal complaint with the Boston Office of the SEC. A Mr. Steve Cohen contacted me. He said he could not tell me what had happened, but perhaps I could guess. I guessed the stock was a fraud. I had guessed correctly. (I heard nothing further from Mr. Cohen nor anyone from the SEC with respect to my complaint until I was subpoenaed in 1996 to testify by the Organized Crime Group of USA Eastern District of Pennsylvania. Although not a defendant, Alan Teale was the trigger name for my subpoena)."
As recorded above, we know that the State of New Hampshire offered the REPORT, to include as incorporated therein Sources of Information 6) (where the above quotes in bold have been lifted) as proof to LDC, that DEFENDANT was "not competent" to stand trail, nor could she be restored to competency. As the Reader will now recall, the State, without any record of an independent investigation, unequivocally testified in the defense of the NH BAR attorneys, to wit: "As just one example, she has worked with many attorneys. She reports that virtually all were either compromised or ultimately refused to work with her, to the point that she could not retain an attorney. The idea that there might be something about her that has caused difficulties with her attorneys does not seem to have crossed her mind".
Let us examine just one of the standards that NH Bar Attorneys have sworn a duty to uphold, against the facts contained within the four corners of the State’s REPORT Sources of Information 6. Can it be possible that ABA Model of Professional Conduct: Rule 1.7 Conflict of Interest: General Rule (pre 2002 update) never crossed the State’s mind when it made the above statement re: "her attorneys"? At this time is important for the Reader to become informed with respect to Rule 1.7 as it related to the DEVINE representation of the DEFENDANT, in the First Equity Insurance/Echotech fraud matter. (Other DEVINE conflicts of interest that were laid out in State’s REPORT Source of Information 6 and, that a reasonable person would construe to be in violation of Rule 1.7 will also be laid out in upcoming installments).
Rule 1.7 Conflict of Interest: General rule
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
- The reader can decide whether DEFENDANT’s representation by DEVINE was "adversely affected" by DEVINE’s concurrent representation of First Equity Insurance with respect to the ‘purchase agreement and superseding creditor agreements’ after it reviews the excerpts of the Opinion of the Third Circuit Court of Appeals in case no. 417 F.3d 358 United States of America v Michael Lewis Miller. Argued: December 5, 2003. Decided: June 10, 2004, which were incorporated into REPORT in Sources of Information 6) section.
- The Reader will recall that DEFENDANT had been a client of DEVINE for four (4) years prior to the First Equity Insurance purchase and sale offer, and contract. DEFENDANT was never told how long DEVINE had represented First Equity Insurance, but the fact that DEVINE was the attorney of record with the TEXAS INSURANCE COMMISSION would indicate that both clients were well established with DEVINE.
- The Third Circuit Court (beginning on page 3- Sources of Information 6)) stated that in April 1997 "The jury convicted Miller of conspiracy, wire fraud, securities fraud for his role in the scheme. Renner, 374 F 3d@207": The case, in which DEFENDANT testified for the prosecution as the case transcripts should show.
- (On page 16-Sources of Information 6) end of 1st full paragraph) The Third Circuit Court found "Teale and Rennert first met and discussed this fraudulent scheme in August 1990 and executed the first of their surplus contribution agreements on September 1, 1990". (If the State had done a modicum of its own due diligence it would have found that First Equity Insurance had to have been one of the first companies to deal with Teale. If not the first: Considering the timing of First Equity’s purchase and sales proposal to DEFENDANT via their DEVINE attorneys, Stahl and McGinley. Also the State would have found that Prosecutors found that the insurance companies that used the bogus stock for its capital surplus did not have entirely ‘clean hands’.)
- (On page 17-Sources of Information 6) 2nd and 3rd paragraphs) The Third Circuit Court found: "In particular, Forum Rothmore entered into surplus contribution agreements with Ecotech Corporation ("Ecotech"). Jensen was at various times in control and president of Ecotech. On December 15, 1990, Jensen manipulated Ecotech stock price and then leased one million dollars worth of Ecotech’s stock to Teale. Although Ecotech’s shares were virtually worthless, Appellants fraudulently over-valued Ecotech’s shares on the company’s financial statements." (If the State had done a modicum of its own due diligence, it would have found that First Equity Insurance had to have been one of the first companies to deal with Forum Rothmore and Teale; and, if not the first, considering the timing of First Equity’s purchase and sales proposal to DEFENDANT via their DEVINE attorneys, Stahl and McGinley. And, the State would have found that DEVINE’s advise to DEFENDANT to exchange the terms that required cash as liquidated damages collateral for Jensen’s one million shares of Echtech stock, which clearly had an "adverse affect" on DEFENDANT.
- The Third Circuit Court continued to opine that "Members of the conspiracy manipulated the market for Ecotech and other corporations’ stock in order to maintain the inflated trading prices. Miller, a lawyer, was corporate counsel for Forum Rothmore and a share holder in Ecotech. The Ecotech stock at issue was not tradable and carried a restrictive legend to that effect. Miller issued opinion letters stating that Forum Rothmore could remove the legend from stock certificates so that it falsely appeared that the stock could be freely traded and leased to Teale."
(2) each client consents after consultation. ("Consult" or "consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.)
- Considering the facts within its own REPORT the State could have inquired of DEVINE attorneys, Stahl and McGinley, as to whether they consulted with the DEFENDANT and communicated information in which the DEFENDANT could have appreciated the exchange of cash for Ecotech stock that DEVINE advised. And, whether DEVINE did its own due diligence into its client’s surplus capital. By now the Reader must be suspicious of DEVINE’s client allegiance to DEFENDANT, since DEVINE was filing the FORM A application paperwork to TEXAS INSURANCE COMMISSION (TIC); which later was denied by TIC due to fraud.
- And, the State could have asked DEFENDANT whether she had been "consulted". The DEFENDANT’s answer would have been ‘NEVER’.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) each client consents after consultation. ("Consult" or "consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.)
- Even if the State had been willing to give DEVINE the benefit of the doubt that DEVINE did not know, in Winter of 1990, that the Ecotech stock that it’s client, First Equity Insurance, was holding as capital surplus was a fraud; the State must have wondered why DEVINE did not come clean with DEFENDANT once Teale, Miller, et al had been busted in Spring of 1991, and their client’s representative Redman disappeared. If the State asked any questions of DEVINE prior to its affirmative defense of DEVINE, there is no evidence in the REPORT.
- And, the Reader will recall that it was around this time that Attorney Norman Stahl was nominated for appointment to the Federal Bench by President George Bush 41.
- A reasonable Reader may wonder how DEVINE could ‘reasonably believe’ that DEFENDANT would not be "adversely affected" by their other client’s Alan Teale/First Equity Ins/Ecotech fraud.
At this point, the Reader must wonder how the State, in its REPORT testimony, could argue (without any independent investigation) that DEFENDANT’s "thinking is rigid and fixed with respect to the delusions", and that "The idea that there might be something about her that has caused difficulties with her attorneys does not seem to have crossed her mind".
The UPCOMING INSTALLMENT will continue with the issue of Rule 1.7, and add the Rule 3.3 "officer’s Candor to the Tribunal" and "Fraud upon the court", which has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final." (emphasis supplied)
The State used the phrase "her attorneys" in its global defense of the NH Bar attorneys, which included according to the REPORT "her attorneys" law firms: Broderick & Merrill; McLane Graf; Shaheen & Gordon; Orr & Reno; Upton, Sanders & Smith (now Upton Hatfield).
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