Margaret H. Nelson, Chair Benette Pizzimenti, Vice Chair Toni M. Gray,' Vice Chair David N. Cole Thomas P. Connair Alan J. Cronheim Eleanor Wm. Dahar

New Hampshire Supreme Court

Professional Conduct Committee 4 Park Street, Suite 304

Concord, New Hampshire 0330 I 603-224-5828 • Fax 228-9511

Gretchen Rule Hamel James R. Martin David N. Page* Stephen B. Stepanek* * non attorney member

Holly B. Fazzino, Admin. Coordinator

Edwards, Anne M advs. John P. Brown, Jr., Ph.D. # 02-120

DISMISSAL WITH A WARNING

On January 17, 2006, the Professional Conduct Committee, upon consideration, voted to dismiss the above-entitled matter with a finding of no professional misconduct but with a Warning:

Ms. Edwards is warned, that she should be more careful to ensure that each representation of fact made in her pleadings is accurate and fully supported by the record.

Pursuant to Supreme Court Rule 37(A) (ll)(b)(l)(B)(i), Ms. Edwards has the right to submit a written response to the complaint which shall be maintained with the file relating to the complaint. A record of this Warning, pursuant to Supreme Court Rule 37(A) (II)(b)(l)(B)(iii)(a), may be considered by the Complaint Screening Committee to determine whether diversion may be appropriate in the event charges of minor misconduct are subsequently brought against Ms. Edwards, or, pursuant to Supreme Court Rule 37(A) (ll)(b)(l)(B)(iii)(b), by the Professional Conduct Committee in the event findings of misconduct are subsequently found against Ms. Edwards.

January 17,2006

Distribution: James L. Kruse, Assistant Disciplinary Counsel Michael Delaney, Esquire File

By: (f!;d ~"'iO*rh tJ0/--Margt H. Ne son Chair

NEW HAMPSHIRE SUPREME COURT

PROFESSIONAL CONDUCT COMMITTEE

Edwards, Anne M.

advs.

John P. Brown, Jr., Ph.D.

#02-120

REQUEST FOR DISMISSAL WITH A WARNING

NOW COMES James L. Kruse, Assistant Disciplinary Counsel, and

respectfully requests that the Professional Conduct Committee dismiss this

matter with a finding of no professional misconduct and with a warning.

In support, undersigned counsel states as follows:

1. This Request For Dismissal With a Warning is filed pursuant to

New Hampshire Supreme Court Rule 37A(III)(b)(8). Undersigned

counsel has reviewed the file and spoken with the Complainant,

John P. Brown, Jr., Ph.D., and Respondent's counsel. Having

completed development of the evidence in this matter, undersigned

counsel finds there is no valid basis for proceeding to a hearing.

2. In a sworn complaint dated October 21,2002, and in subsequent

correspondence, Dr. Brown has asserted numerous claims of

1

professional misconduct against the Respondent, Associate

Attorney General Anne Edwards. Dr. Brown has since died and

his live testimony has not been preserved.

3. Before his death, Dr. Brown advised undersigned counsel that he

was not inclined to pursue some of his original claims. There are

others which Disciplinary Counsel has determined raise no

material issue. Remaining claims pertain to conduct associated

with disciplinary proceedings brought against Dr. Brown before the

Board of Mental Health Practice. Dr. Brown claims a) that

Respondent wrongfully advised and defended the Board in

connection with the disciplinary proceedings; and b) that

Respondent made misrepresentations of material fact in briefs filed

with the New Hampshire Supreme Court on behalf of the Board.

4. What follows is a summary of the background facts, undersigned

counsel's analysis and conclusion, and a request for relief.

I. Background Facts

5. Respondent is licensed to practice law in New Hampshire. She was

admitted to the New Hampshire Bar in 1989. At all times material

to this case, Respondent has served as an attorney in the Office of

the New Hampshire Attorney General.

6. Dr. Brown was a clinical psychologist who practiced in Newport,

New Hampshire. He died in September 2005.

2

Board of Mental Health Practice Proceeding

7. In1995, a disciplinary action against Dr. Brown was brought

before the Board of Mental Health Practice ("Board") by a former

patient, Eileen Barton.

8. Ms. Barton's complaint against Dr. Brown included allegations

that Dr. Brown's professional relationship with her included

discussion of matters that crossed appropriate professional

boundaries.

9. Following full evidentiary hearings concluding in November 1995,

the Board found that Dr. Brown had engaged in professional

misconduct. His license was suspended for five years.

10. Dr. Brown subsequently filed a Motion for Reconsideration. In

December 1996, the Board amended the period of suspension to

three years. It also placed certain conditions on reinstatement.

Conditions included personal psychotherapy for Dr. Brown, and

graduate study in professional ethics and treatment of borderline

personality disorders.

11. Dr. Brown appealed the Board's decision to the New Hampshire

Supreme Court in 1997. The appeal was dismissed.

Second Board Proceeding

12. In June 1999, Dr. Brown asked the Board to reopen the

disciplinary case on grounds that evidence relied upon in the 1995

proceedings was unreliable. The Board agreed, struck the subject

3

testimony, and convened the parties for further hearings in

October and November 1999. The State proceeded absent the

complaining witness who had declined to honor a subpoena to

appear and testify. Dr. Brown presented four witnesses.

13. On February 22,2000, the Board issued an order finding

professional misconduct. However, it reinstated Dr. Brown's

license, subject to a one-year period of supervision.

14. In response to the Board's decision, Dr. Brown filed a Motion for

Reconsideration dated March 22, 2000. Among other things, Dr.

Brown complained that the Board had been engaged in a vendetta

against him; it did not act ethically or in compliance with its own

rules; it abused its discretion; its findings were made contrary to or

in the absence of credible evidence; it did not act upon Dr. Brown's

requests for findings and rulings; it denied Dr. Brown due process

of law by not producing witnesses at the rehearing; and its final

order was misdated and otherwise defective.

15. On April 24, 2000, the Board denied Dr. Brown's Motion for

Reconsideration. On the following day, the Board found that Dr.

Brown had failed to comply with the supervision restriction.

Accordingly, his license was suspended again, pending satisfactory

compliance with conditions of the February 22, 2000, order.

4

New Hampshire Supreme Court Appeal

16. On May 18, 2000, Dr. Brown filed a Notice of Appeal with the New

Hampshire Supreme Court, challenging the Board's orders of

February 22, April 24, and April 25, 2000.

17. In connection with these various proceedings, the Board was

represented at first by Douglas N. Jones and later by Jennifer B.

Gavilondo, both attorneys in the Civil Bureau of the New

Hampshire Attorney General's office. The complaints were

prosecuted by an attorney in a separate unit-the Attorney

General's Administrative Prosecution Unit attached to the

Consumer Protection Bureau.

18. Respondent Edwards, from the Civil Bureau, was assigned to serve

as counsel to the Board on or about March 1,2000, replacing Ms.

Gavilondo. Respondent assumed an active role as the Board's

counsel in May 2000, shortly before Dr. Brown filed his second

New Hampshire Supreme Court appeal.

19. Dr. Brown claims that "even a cursory review of my appeal with

appended documents would reveal that [Respondent] had no good

faith reason whatsoever to believe that justice would be served by

defending the Board's decision."

20. Dr. Brown filed his initial brief on August 20,2001. Over Dr.

Brown's objection, Respondent Edwards obtained an extension of

the briefing deadline, and filed her brief on behalf of the Board on

5

November 1,2001. Reply and supplemental briefs were also filed

by the parties. Karen Schlitzer, a recent law school graduate newly

hired by the Attorney General, did substantial work on these briefs

filed on behalf of the Board. She worked under Respondent's

direct supervision.

21. In his appeal, Dr. Brown addressed issues raised in his Motion for

Reconsideration before the Board. In Respondent's brief, she

included a series of representations of fact, for which she cited

supporting references to the transcript below. Among those

representations were the following:

Dr. Brown admitted that during his sessions with Ms. B., he discussed his own personal matters including his marital discord, his divorce (Tr. 11/6/95, p. 113), his need for sex, and other patients (Tr. 11/6/95, p. 105). Following his divorce, he stated on the record that he requested to date various friends of Ms. B.'s and asked her to give his name to her single friends. Tr. 11/27/95, pp. 34-35; Tr. 11/6/95, p. Ill. Dr. Brown acknowledged giving Ms. B. flowers. Tr. 11/6/95, p. 215. Ms. B. gave Dr. Brown numerous gifts. Tr. 11/6/95, pp. 92-93. In addition, Ms. B. performed personal services for Dr. Brown, such as laundry, ironing, bringing him meals (Tr. 11/6/95, pp. 89-90), and driving him and his son to various places. Tr. 11/6/95, pp. 91-92. On one occasion, Ms. B. hemmed Dr. Brown's pants. Tr. 11/6/95, p. 90.

Brief for the State of New Hampshire, In re: Appeal of

John P. Brown, Jr., Ph.D., No. 2000-322, November 1,

2001, p. 5-6.

6

22. In his Reply Brief of November 14, 2001, Dr. Brown claimed that

Respondent's brief misrepresented facts in the record. For

example, he asserted that the 1995 transcript contained no

admissions regarding his alleged comment about needing sex and

no evidence Dr. Brown accepted ironing and laundry services from

his client. See Reply Brief of the Appellant, November 14, 2001, p.

2-3.

23. Respondent reviewed Dr. Brown's Reply Brief and assigned Ms.

Schlitzer the task of double-checking the record and the citations

in the brief. Respondent, indeed, had failed to include a specific

citation in support of the statement that Dr. Brown had admitted

telling his client he needed sex. However, based upon the state of

the record, Respondent determined that she had not made a

misrepresentation of material fact to the Court.

24. The record on appeal contained Ms. Barton's original letter of

complaint filed with the Board in March 1994, in which she alleged

that Dr. Brown told his client he needed sex, and that he accepted

her help with some laundry and ironing. In his letter of response

to the complaint to the Board (also part of the record), Dr. Brown

specifically denied various allegations, including that he had asked

his client to do any laundry or ironing. He did not respond

specifically to the allegation regarding the reference to needing sex,

but issued a general denial as follows: "At no time did I cross or

7

even hint of crossing sexual boundaries, use her for financial gain,

or demonstrate psychopathological behavior."

25. The hearing transcript revealed that Dr. Brown had not taken

advantage of other opportunities to contest Ms. Barton's testimony

regarding his alleged inappropriate comment about "needing sex."

26. Another exhibit marked in the disciplinary proceeding was a

Report of Investigation. The investigator reported on Ms Barton's

allegations and Dr. Brown's response. According to the

investigator, Ms. Barton claimed that Dr. Brown "shared personal

information about himself concerning his unhappy marriage, the

fact he needed sex and the fact he needed to 'fuck his brains' out."

(See Report of Investigation, attached as Exhibit A).

27. According to the investigator, "[t]he Certificate Holder [(Dr. Brown)]

admitted he committed boundary violations in the classical sense,

however, he did not do so in bad faith." The investigator further

wrote that, "[a]fter responding to the complaints, Dr. Brown stated

he does not feel the Board should discipline him, as there is a

conspiracy against him and the boundary violations are only in a

classical sense and not done in bad faith." It is not clear from the

report whether the investigator was summarizing an in-person

interview of Dr. Brown or merely summarizing Dr. Brown's written

responses available elsewhere in the record.

8

28. Confirmation of the foregoing record evidence apparently satisfied

Respondent that there was no need to seek leave to file a correction

with the Supreme Court.

29. In addition to the apparent, albeit general, admission contained in

the Report of Investigation, Respondent determined that Dr.

Brown's failure to more specifically deny the key allegation served

as an admission of that allegation. Indeed, in defense of her

alleged misconduct in this attorney discipline matter, Respondent

maintains essentially that Dr. Brown's denial (i.e., "At no time did I

cross or even hint at crossing sexual boundaries .... ") was not

"specific" enough and therefore constituted an "admission."

Board Order Vacated and Remanded for Findings and Rulings

30. On February 5, 2002, the Supreme Court vacated the order below

and remanded the case to the Board. The Board was instructed to

articulate the standards that it applied in its decision and to rule

upon each of the parties' proposed findings of fact. Dr. Brown had

succeeded in convincing the Court that the Board was obliged to

make such rulings, yet he then complained in a Motion for

Clarification that it was too late for the Board to supplement its

order. He further suggested that the Board might willfully have

delayed issuing rulings so as to further harm Dr. Brown.

31. In her response to Dr. Brown's Motion for Clarification,

Respondent represented that the Board's rulings, in fact, were

9

made at a meeting of the Board on February 15, 2002. The

quorum present comprised four current members of the Board who

were present for the evidence in the 1999 hearings. The Board's

order with findings and rulings was dated March 15,2002, and

filed with the Supreme Court shortly thereafter.

Supreme Court's Final Decision

32. On August 22,2002, the Supreme Court issued its final decision

in this matter. The Court was satisfied that the Board had, as

directed, properly responded to and acted upon the parties'

requests for findings and rulings. However, the Court also found

that, for most part, the Board could not reasonably have based its

findings on competent evidence. Certain findings relating to

alleged failure to establish and maintain professional boundaries,

for example, occurred after Dr. Brown discontinued treating the

client. The Board had based its decision, in part, on irrelevant and

nonexistent evidence. Accordingly, the Court reversed the Board's

decision.

33. While clearly unimpressed with the quality of the Board's

adjudication, the Supreme Court did not find or suggest that the

Board or its counsel had, at any time, acted unethically in issuing

the order dated March 15, 2002, or otherwise in connection with

this proceeding.

10

34. The Supreme Court decided not to remand the case for any further

proceedings before the Board. According to the Court, itwould

serve no purpose to have the Board consider this matter for a third

time. By the time of its order, Dr. Brown had satisfied all

sanctions and his certificate to practice had been restored.

Dr. Brown's Right-To-Know Requests; Superior Court Proceedings; Supreme Court Appeal

35. Prior to the Supreme Court's August 22,2002, decision, Dr. Brown

demanded that the Board disclose certain information under the

provisions of RSA 91-A.

36. Among numerous other requests, Dr. Brown sought to confirm

Respondent's representations regarding the Board's process in

rendering its findings and rulings in the disciplinary proceeding.

By letter dated February 28, 2002, he asked for all documentation

relative to each member's decision and vote in his case. Dr.

Brown's request was denied upon advice of Board Counsel.

37. Subsequently, Dr. Brown filed a petition for declaratory relief in

Merrimack County Superior Court, seeking a broad range of

Board-related information to which Dr. Brown thought he was

entitled under RSA 91-A. Respondent opposed the action on

behalf of the Board. The petition was denied on May 21, 2002.

38. On November 19, 2002, Dr. Brown made another request for

records. He reiterated his request of February 28, 2002, adding

the minutes of the non-public portions of the Board's February 15

11

and March 15, 2002, meetings, with particular reference to this

disciplinary case. Dr. Brown also asked for records pertaining to

the handling of a complaint against another practitioner and

pertaining to the Board's response to this particular request.

39. In October 2003, Dr. Brown filed a declaratory judgment action in

Sullivan County Superior Court, again seeking access to records

under RSA 91-A. He reiterated his various complaints about the

Board's disciplinary proceedings against him. Among many other

requests, he wanted records listed in his February 28 and

November 19, 2002, letters to the Board. Respondent opposed the

action on behalf of the Board.

40. The Sullivan County Superior Court was persuaded that the issues

before it were the same or similar to those raised in the earlier

Merrimack County Superior Court proceeding brought by Dr.

Brown, which was dismissed. Accordingly, by order of January 16,

2004, the Sullivan County Superior Court action was dismissed.

41. Dr. Brown appealed the Sullivan County Superior Court ruling,

arguing, among other things, that his demand for the Board's non­

public meeting minutes of February 15 and March 15, 2002,

pertaining to the disciplinary case was not included in the

Merrimack County action and that dismissal of that case was not

dispositive. He also challenged the legal and factual basis for the

Board's position that these records were subject to the attorney-

12

client privilege and claimed that Respondent falsely represented

that counsel was present.

42. The New Hampshire Supreme Court dismissed the appeal.

Moreover, Board minutes confirm that, in fact, the Board's findings

and rulings were made at the February 15, 2002, meeting and in

the presence of counsel. Accordingly, there was no

misrepresentation.

II: Analysis

(AI Wrongful advice to and defense of the Board in disciplinary proceeding

43. There is no basis for finding that Respondent's representation of

the Board in the disciplinary appeal violated the New Hampshire

Rules of Professional Conduct.

44. Dr. Brown made clear in his Motion for Reconsideration of March

22, 2000, and in his Supreme Court appeal, the fun extent to

which he thought his rights were violated by the Board in this

disciplinary proceeding. Understandably, he was concerned that

his practice and reputation were at risk; as a pro se litigant, he

probably felt he was at a disadvantage. However, while the

Supreme Court agreed that the Board made errors in the course of

the proceeding, Dr. Brown has supplied no basis for finding that

such errors were the product of professional misconduct on the

part of Board Counsel. Significantly, Dr. Brown has asserted no

13

claim against Respondent's predecessor counsel in connection with

any aspect of the challenged adjudicative proceedings.

45. Dr. Brown cannot articulate any reason to find that, once

Respondent was assigned as Board counsel, her efforts to·

represent the Board in the appeal were in any way improper. The

Attorney General's office is charged by statute with the

responsibility of representing state agencies and boards in all such

proceedings. Once assigned to serve as Board coullsel,

Respondent had a responsibility to represent the Board diligently,

competently, and in compliance with the New Hampshire Rules of

Professional Conduct. This responsibility would attach even if

Respondent believed that the Board's rulings would not be

sustained on appeal. See Rule 3.1, ABA Model Code Comments.

While Dr. Brown insists that the Board's order, on its face, was

legally flawed, none of Respondent's arguments or positions in

defense of the Board appears frivolous or made in bad faith.

46. Dr. Brown complains about the succession of lawyers from the

Attorney General's office that he has had to confront in connection

with this proceeding. However, he has not shown any

commingling of investigative, accusatory, or adjudicative functions

affecting Respondent's performance or involving any other

personnel assigned to this case. Appeal of Trotzer, 143 N.H. 64

(1998).

14

47. There is no basis for finding that Respondent's representation of

the Board in connection with Dr. Brown's various RSA 91-A

requests violated Rule 3.1 or any other provision of the New

Hampshire Rules of Professional Conduct.

48. All issues raised by Dr. Brown under RSA 91-A have been fully

pled, litigated, and disposed of in the referenced Merrimack County

and Sullivan County equity actions. There is no indication in

either case that Respondent did anything but properly represent

the Board. Dr. Brown establishes no cognizable basis for finding

misconduct.

(B) Misrepresentations of Fact by Respondent in Supreme Court Brief

49. Respondent asserted in her New Hampshire Supreme Court brief

that Dr. Brown admitted discussing with a client his need for sex.

She included the assertion in a litany of other alleged admissions

for which there were specific citations to the transcript.

50. The underlying administrative proceeding involved a complaint

against Dr. Brown for breach of appropriate personal boundaries

with his client. Accordingly, the alleged admission about telling

his client he needed sex was highly material, if not inflammatory.

51. Respondent acknowledges she is responsible for the work of her

associate and for the brief filed with the Supreme Court. She also

acknowledges her failure to include any citation in support of this

particular alleged admission.

15

52. With respect to the substance of her statement, Respondent points

to record evidence that (a) Dr. Brown's client alleged on more than

one occasion in the proceeding that Dr. Brown had discussed his

need for sex, and that (b) Dr. Brown failed to answer the allegation

with a direct and specific denial.

53. Respondent's apparent reliance on the distinction between a

specific and a general denial is misplaced. Ms. Barton's allegations

of Dr. Brown's inappropriate discussion of a "need for sex" was

central to her complaint of breach of professional boundaries

involving sex. In this context, Respondent's interpretation of Dr.

Brown's response as an admission rather than a denial is, at best,

strained.

54. In spite of the foregoing and the consequent failure to file a

correction, the New Hampshire Supreme Court apparently was not

misled by Respondent's brief. In its order and decision of August

22, 2002, the Court found that, "contrary to the State's contention,

the record does not contain any evidence that the respondent ever

discussed 'his need for sex' with the complainant." Order, p. 6.

55. Respondent also suggests through counsel that, having filed his

answer to the complaint under RSA 330-A:28, VII, Dr. Brown's

failure clearly to deny the allegation necessarily constituted an

admission. However, the statute does not support Respondent's

position. With respect to complaints brought by third parties, the

16

statute provides in pertinent part that "the board may dismiss

complaints when the undisputed allegations do not warrant

disciplinary actions .... " See RSA 330-A: 28, VIII. Further

guidance appears in the preceding section which requires that a

licensee subject to a complaint brought on motion of the Board

shall "provide a detailed and good faith written response to the

allegations identified by the board." See RSA 330-A:28, VII.

56. Perhaps the more important inquiry is whether Respondent and

her associate were careful enough in reviewing the brief and record

in response to Dr. Brown's challenge. Did they distinguish

evidence in the record that supported an allegation that Dr. Brown

engaged in the claimed misconduct, from record evidence that Dr.

Brown admitted he engaged in such transgression? The answer

appears to be, "no."

57. Respondent's position is better understood with reference to the

Report of Investigation that counsel represents was part of the

appellate record. There, Dr. Brown reportedly admitted "boundary

violations," albeit "only in the classical sense and not done in bad

faith." The admission is significant if, as it appears from the text of

the report, that Dr. Brown may have been confronted in a personal

interview with Ms. Barton's inflammatory allegations and

acknowledged crossing the line.

17

58. Undersigned counsel has concluded that a hearing panel would

likely consider thereport exculpatory on the Rule 3.3 question.

This is particularly true considering the voluminous record in Dr.

Brown's case and Respondent's necessary reliance on an associate

to comb the record for purposes of filing a responsive brief.

59. Respondent should have taken a closer and more discerning look

at the record evidence and determined that the Supreme Court

brief contained an inaccuracy.

60. Assuming leave of the Court, Respondent might easily have

submitted a correction, thereby avoiding any risk of misleading the

Court and assuring strict compliance with her obligation to "take

reasonable remedial measures" with regard to any false

statements, once alerted to the error. N.H. R. Prof. Conduct

3.3(a)(3).

61. It appears that Respondent failed to take such action, not because

she knowingly undertook to misrepresent material facts, but rather

because she and her associate simply did not recognize the

material significance of their mistake. Respondent's neglect under

the circumstances does not rise to the level of a "knowing"

misrepresentation. It is unlikely that a hearing panel would find

clear and convincing evidence that Respondent committed

professional misconduct under N.H. R. Prof. Conduct 3.3.

18

62. For all of these reasons, undersigned counsel has concluded that a

hearing panel would not find clear and convincing evidence that

Anne M. Edwards committed professional misconduct.

III: Request for Relief

63. Supreme Court Rule 37A(III)(b)(8) states, in pertinent part, that

when Disciplinary Counsel "concludes that the development of

evidence establishes that there is no valid basis for proceeding to a

hearing, he shall submit a written report to the professional

conduct committee requesting that the matter be dismissed either

with a finding of no professional misconduct or on some other

basis."

64. After reviewing this matter, undersigned counsel has concluded

that the Professional Conduct Committee most likely would not

make a finding by clear and convincing evidence that Ms. Edwards

committed professional misconduct in this case. As such,

undersigned counsel has concluded that there is no valid basis for

proceeding to a hearing.

65. Accordingly, and for the reasons stated above, undersigned

counsel requests that this matter be dismissed with a finding of no

professional misconduct. However, undersigned counsel has

concluded that a warning under Rule 3.3(a) is in order.

66. Undersigned counsel proposes that such a warning could contain

the following language:

19

Respondent should be more careful to ensure that each representation of fact made in her pleadings is accurate and fully supported by the record.

67. Undersigned counsel understands that Respondent may wish to

file a response to this Request. Undersigned counsel has no

objection to her doing so within 20 days.

WHEREFORE, undersigned counsel requests that the Professional

Conduct Committee:

(A) Dismiss this matter with a finding of no professional misconduct

with a warning; and

(B) Grant such other relief as is fair and in the public interest.

Dated: December 8, 2005

New Hampshire Supreme Court Attorney Discipline Office 4 Park Street, Suite 304 Concord, New Hampshire 03301 (603) 224-5828

B~~~ L,~ J es L. Kruse :stant Disciplinary Counsel

CERTIFICATION

I, James L. Kruse, Assistant Disciplinary Counsel of the New Hampshire Supreme Court Attorney Discipline Office, certifY that this "Request for Dismissal With a Warning" is being sent on this 8 th day of December 2005, to Michael A. Delaney, Esquire, Attorney General's Office, 33 Capitol Street, Concord, New Hampshire 03301-6397 by regular mail postage prepaid.

~~~-~ ~- ~. ~~ . ~ames L. Kruse

Assistant Disciplinary Counsel

20

PRIVILEGED AND CONFIDENTIAL

certificate Holder: John P. Brown, Jr. certificate Number: 378 APU File No.: U-94-00l7 DOR: 11/3/94

REPORT OF INVESTIGATION

I. SUMMARY OF COMPLAINTS:

EXHIBIT

A

Th'ere were five complaints received by the New Hampshire Board of Examiners and Mental Health Practice. Kimberly Howe, Eileen Barton, Dorothy Eckert, Terry Hathaway and Marcia Bewley are ("the Complainants"). The Complainants alleged various boundary violations by Dr. John Brown (lithe Certificate Holder")~ These complaints included but were not limited to violation of the doctor/patient privilege, improper conduct on the part of the Certificate Holder, accepting of gifts, trading his services for cleaning services of his client and other violations of ethics.

II. SUMMARY OF INVESTIGATION:

As a result of the above complaints, an investigation was conducted and the following is a summary of the Complainants' statements.

Kimberly Howe, now known as Kimberly Small, was an intern in the office ,of Dr. Jo~m Brown from January 1990 until August 1991 when she graduated from Antioch College. - Ms. Howe maintained a friendship with the Certificate Holder until June 1, 1993. June 1, 1993 was the date she discovered that the Certificate Holder had disclosed personal information about her, which she had shared with the Certificate Holder in confidence, with Eileen Barton who was one of his patients. The personal information he shared included traumatic ,issues of her past, the fact she was in a personal crisis, the fact she was in therapy with Sue Hagerman and the fact she was unable to 'work with clients due to her personal problems.

Eileen Barton indicated that she was a patient of Dr. Brown from December 1988 until July 3, 1991. After therapy, a friendly relationship continued. During the above relationship, the Certificate Holder would share information with her concerning clients, ask her about. the background of various individuals and would call her on the phone and talk with her approximately 15 hours a week. The Certificate Holder shared personal information about himself concerning his unhappy marriage, the fact he needed sex and the fact he needed to "fuck his brains out". The Complainant provided n~mes of individuals he could dat~ upon his request. The Certificate Holder accepted gifts and visited her home on numerous occasions, as well as provide her with gifts of flowers for her garden on one occasion.

- 3 -

Tne following is a summary of the statement of the certificate Holder:

The certificate Holder admitted he committed boundary violations in the classical sense, however, did not do so in ba-d faith. He indicated the model for therapy is changing and he is on the leading edge of these changes. Dr. Brown alleged there ws a conspiracy against him by the Newport Counseling Center, Eileen Barton and others.

After responding to the complaints, Dr. BroWn stated he does not feel the Board- should discipline him, as there is a conspiracy against him and the boundary violations are only in a classical sense and not,done in bad-faith. In addition to reiterating this information~the licensee feels his method of treating patients is the direct approach and he is progressive in the treatment of his patients.

-III. ALLEGED VIOLATIONS OF THE PRACTICE ACT

Based on the above investigation, it is reasonable to commence a disciplinary hearing pursuant to RSA 330-A:l5-b, to determine whet-her the Certificate Holder has engaged in unprofessional conduct within the meaning of RSA 330-A:l4, II, for which disciplinary sanctions should be imposed.

IV. RECOMMENDATION OF THE REVIEWER

It is the opinion of the reviewer that. a notice of hearing be issued pursuant to RSA 330-A:14, RSA 330-A:15-b, RSA 541-A:31, and Psy 501.04 for the purpose of resolving the issues.