Establishing an Objective “Obviousness” Standard Under NHRPC 4.4(a) to Prevent Third-Person Burdening

Introduction

The Supreme Court of New Hampshire’s decision in Appeal of Hoppock, 2025 N.H. 18, addresses three core questions: (1) the scope of the Professional Conduct Committee’s (PCC) authority to direct oral argument; (2) the correct interpretation of Rule 4.4(a) of the New Hampshire Rules of Professional Conduct—particularly the meaning of its “obvious” standard; and (3) the appropriate sanction for a lawyer who sends an intimidating letter to an unrepresented third party. In this disciplinary appeal, respondent Joseph S. Hoppock had represented a client in a trade‐name dispute and sent letters threatening defamation litigation and “financial ruin” to the opposing party, who was not represented by counsel. After the Attorney Discipline Office (“ADO”) filed charges and a hearing panel initially declined to find misconduct, the PCC intervened, found a Rule 4.4(a) violation, and imposed a stayed six‐month suspension (two months active, four months stayed). Hoppock appealed.

Summary of the Judgment

The Supreme Court affirmed in full. First, it held that the PCC’s general authority under Supreme Court Rule 37(3)(c) includes the power to require parties to appear for oral argument, notwithstanding more limited procedural provisions in Rule 37A. Second, the Court construed the “obvious” disjunctive branch of Rule 4.4(a) to impose an objective “reasonable-person” standard: a lawyer violates the rule if it would be obvious to a reasonable observer that the primary purpose of the lawyer’s action was to embarrass, delay, or burden a third person. Applying that standard to the uncontested May 20, 2019 letter—threatening $250,000 in damages, “nothing left” but exempt assets, and “enormous legal fees”—sent to an unrepresented party, the Court held that it was objectively obvious the letter was designed to burden through intimidation. Finally, the Court affirmed the six-month suspension, finding it commensurate with ABA guidance and the aggravating factor of Hoppock’s prior similar violation.

Analysis

I. PCC’s Authority to Order Oral Argument

Hoppock argued that the PCC lacked authority to call for oral argument where neither party had requested it and no dispositive stipulations existed. The Court rejected this narrow reading of Rule 37A(III)(d)(2)(A), explaining that procedural rules in Part 37A can be waived “as good cause appears and as justice may require,” and that the PCC’s core jurisdiction and duties spring from Rule 37(3)(c). Under Rule 37(3)(c), the PCC “shall have the power and duty … 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.” The Court concluded that this grant inherently empowers the PCC to require appearances and to pose specific questions to clarify issues material to determining whether clear and convincing evidence of misconduct exists.

II. Interpretation and Application of Rule 4.4(a)

A. Textual Construction of the “Obvious” Standard

Rule 4.4(a) prohibits a lawyer from taking “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.” The ethics committee comment emphasizes that New Hampshire’s rule “substantially differs from the ABA model rule by using the word ‘obvious’ to set a higher objective standard.” The Court applied plain-meaning principles, refusing to graft in a subjective “lawyer’s-position” qualifier, and concluded that “obvious” demands an objective inquiry akin to what a reasonable person would perceive.

B. Objective “Reasonable-Person” Test

The Court interpreted “obvious” to mean that, given the uncontested content and context of the communication, any reasonable person would recognize that the lawyer’s primary intent was to burden the recipient. Under this test, the PCC need not probe the lawyer’s private state of mind; it must assess whether the communication crosses the line into intimidation or harassment.

C. Application to Hoppock’s May 20, 2019 Letter

The May 20 letter accused the complainant of “reckless defamatory conduct” on social media, demanded $250,000 to settle, threatened to “pursue you until you have nothing left, except assets exempt from judicial execution,” and urged her to notify her insurance agent and attorney. Because the recipient was unrepresented, the Court agreed with the PCC that “it was objectively obvious that the primary purpose” of these threats was to burden her—by inflicting emotional pressure and potential financial harm—thus violating Rule 4.4(a).

III. Sanction Analysis

The Court applies its traditional framework, guided by the ABA Standards for Imposing Lawyer Sanctions. It identifies three baseline factors—duty violated, mental state, and injury caused—and then considers aggravating and mitigating circumstances.

A. Baseline Sanction and Mental State

The PCC initially characterized Hoppock’s conduct as “knowing,” warranting suspension under Standard 6.22. Although Hoppock argued for a “negligent” characterization (which would point toward reprimand), the Court assumed without deciding that negligence applied. Even under negligence, the PCC’s reliance on the prior similar violation tipped the scales toward suspension.

B. Aggravating and Mitigating Factors

Aggravating: Hoppock had admitted to a similar Rule 4.4(a) violation less than two years earlier and received a reprimand.
Mitigating: The PCC declined to credit the pandemic-related delay or the financial hardship of suspension as mitigating—delay was neutral, and financial impact is not a recognized factor under the Standards.

C. Proportionality and Comparable Cases

The PCC compared Kalil’s Case (indefinite suspension for threatening business associates) and Robertson’s Case (suspension for abusive litigation tactics). It found Hoppock’s letter less extreme than Kalil’s but more serious than a mere rude correspondence, particularly given his disciplinary history. The selected two-month active suspension (four months stayed) was therefore deemed appropriate to protect the public and the profession’s integrity without unduly chilling advocacy.

Impact of the Judgment

This decision marks a significant development in New Hampshire legal ethics. It:

Clarifies that Rule 4.4(a) employs a dual subjective/objective test: “knows” (subjective) and “obvious” (objective).
Institutes a reasonable-person standard for assessing whether a lawyer’s communication burdens a third person.
Affirms the PCC’s broad authority under Rule 37(3)(c) to manage its proceedings, including mandatory oral argument.
Sends a clear warning that threatening letters to unrepresented parties cross the line of zealous advocacy into sanctionable misconduct.

Complex Concepts Simplified

Rule 4.4(a): Prohibits any lawyer action that either they know or a reasonable person would see is primarily intended to embarrass, delay, or burden a third party.
“Obvious” Standard: An objective test asking whether a typical observer, given the same letter and circumstances, would conclude that the lawyer intended to burden the recipient.
PCC Authority: Under Rule 37(3)(c), the Professional Conduct Committee may call parties for oral argument to clarify facts and legal issues.
Staying a Suspension: The Court can suspend part of a sanction (here four of six months) for a probationary period if the lawyer meets certain conditions, balancing deterrence and rehabilitation.

Conclusion

Appeal of Hoppock establishes a clear, objective “obviousness” standard for Rule 4.4(a) violations, reaffirms the PCC’s procedural powers, and underscores the profession’s commitment to protecting unrepresented persons from coercive tactics. The calibrated six-month suspension demonstrates the Court’s emphasis on public protection, maintaining confidence in the bar, and deterring future misconduct while preserving zealous advocacy within ethical bounds.