UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Carlos Vosburgh,

Plaintiff

v. Civil No. 07-cv-101-SM

FNU Bourassa; and James O’Mara, Jr.,

Superintendent of the Hillsborough

County Department of Corrections,

Defendants

O R D E R

On December 2, 2008, plaintiff’s counsel failed to appear at

the scheduled time for jury selection in this case. That

morning, he indirectly communicated with this court about his

absence by asking defense counsel to advise the Deputy Clerk that

he was attending an “emergency” hearing in the New Hampshire

Superior Court for Merrimack County (less than one mile from the

federal court).

The Deputy Clerk and Chief Deputy Clerk made calls to the

Superior Court Clerk in an effort to determine what the facts

were and when counsel might appear to participate in jury

selection. The Superior Court Clerk advised that there was no

“emergency” of which he was aware; that counsel was participating

in a fairly routine bail revocation hearing that had been

scheduled for months; and that had counsel informed the Superior

Court that he had a jury panel waiting in federal court, the

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Superior Court would have delayed the bail revocation hearing

while counsel drew the jury as a matter of course.

But, counsel apparently never advised the Superior Court

that some fifty potential jurors, defense counsel, courtroom

staff, and court reporter were all sitting idly awaiting his

appearance. Counsel did not directly call this court’s Deputy

Clerk to explain his ostensible difficulty; did not provide an

estimate of his likely arrival time; and made no effort in

advance, or on the morning of jury draw, to alert either this

court or the state court to a potential scheduling problem. 

Counsel did not appear in this court until over ninety minutes

after the scheduled proceeding was to begin, which meant that

jury panel members who should have been released by mid-morning

were held until the afternoon. Not only were those citizens all

delayed, but they undoubtedly did not appreciate the lack of

respect shown for their time and the apparent inefficiency of the

court system, all due to counsel’s indifference.

Counsel was directed to show cause, in writing, why he

should not be sanctioned for failing to appear on time, causing a

substantial delay of court proceedings, and imposing significant

inconvenience on the entire jury panel and court staff. He has

done so, but his explanation consists of little more than an

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appeal to sympathy for his client in the probation revocation

proceeding, coupled with a contention that he deemed it more

pressing to proceed with that hearing, and made a “mistake” in

misjudging the time required to complete the state hearing. (The

state hearing was scheduled for 9:00 a.m.; jury selection for

9:30 a.m.).

These circumstances warrant a sanction. First counsel knew,

well in advance of December 2, that he faced a potential

scheduling conflict, yet he did nothing about it. Even when

counsel knew, or reasonably should have known, that he could not

possibly complete the state court matter and be present for jury

selection, still, he did not contact this court, or inform the

Superior Court. He simply proceeded with the state matter,

leaving the chips to fall where they may. That conduct was not

only rude and unprofessional, it bordered on contempt.

This court and the state courts routinely and consistently

cooperate to ensure that conflicts such as this, which are bound

to occur, are worked out expeditiously and efficiently, without

imposing upon either court, and certainly not upon jurors,

witnesses, or other citizen participants in the legal process. 

But that requires a minimal degree of civil behavior by counsel —

a word, some hint of a potential problem. It is plainly not

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acceptable for legal counsel to simply make a silent choice to

proceed in one forum while leaving the other to sit and wait,

uninformed of the circumstances then prevailing, until counsel

manages to show up. The mistakes counsel made go well beyond his

own assessment of a mere misguided “hope” that the state hearing

would have been brief. His mistakes also included a demonstrated

disregard for opposing counsel, the litigants, the jurors, and

this court; a failure to recognize and address the potential

scheduling conflict when it first arose; a failure to communicate

with this court; a failure to communicate with the Superior

Court; and a presumption that his personal preferences and

priorities with respect to which proceeding should go forward

should be dispositive.

Counsel has placed this court in an uncomfortable position. 

On the one hand, his conduct is properly subject to sanction. On

the other, that conduct is both surprising and out of character. 

This attorney is unquestionably capable, generally produces high

quality work, is a talented trial advocate, and without question

voluntarily sacrifices a great deal in terms of material success

by taking on prisoner cases such as this one — cases that few

attorneys are competent to handle, and even fewer are willing to

take. A good reputation is something of great value when earned

over time, and it can be a strong mitigating factor, but it can

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be quickly squandered. But for the mitigating factors mentioned

above, the sanction in this case would have been a fine of $1,000

for each hour or part of an hour that the jury panel was delayed,

or $2,000.

Counsel is hereby sanctioned as follows. He shall pay a

fine of $500.00 to the Clerk or, in the alternative, he may

instead choose to perform three hours of service assisting the

jury administrator of this court in managing the jury pool (i.e.,

roughly twice the time he delayed the jurors).

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

December 19, 2008

cc: Michael J. Sheehan, Esq.

John A. Curran, Esq.

Elizabeth L. Hurley, Esq.

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