Thursday, July 21, 2011

No Split Personality

THe New Hampshire Supreme Court has held that a $100 fine of an attorney for failing to appear was an "unsustainable exercise of [the trial court's] discretion."

The attorney could not be in two places at once and had made efforts to deal with the scheduling conflict:

In this case, [the attorney] was scheduled to appear for a pretrial conference in another court at the same time, and the outcome of that conference bore directly on the scheduling of the Wolfe case. [He] filed a motion to continue, informing the court of the conflict, conferred with opposing counsel, and indicated that he would be available to appear in court to discuss the Wolfe case on June 11. Opposing counsel promised to inform the judge of the situation. [The attorney] made timely and diligent efforts to ascertain the status of his motion to continue, and nothing in the record suggests any negligence on his part. Further, as noted by the amicus brief in this case, while scheduling conflicts are an inherent part of criminal defense practice, the filing of “motions based on contingent scheduling conflicts filed far in advance of hearing[s] [is] discouraged by most trial courts, as the burden of processing these motions would otherwise be unwieldy and conflicts oftentimes dissipate before the time of hearing.”

Reversed. (Mike Frisch)

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