STATE OF NEW HAMPSHIRE
SUPERIOR COURT
HILLSBOROUGH, SS. No. 216-2019-CV-01068
NORTHERN DISTRICT
ABBOT MARK COOPER, O.S.B., et. al
v.
BOARD OF TRUSTEES OF SAINT ANSELM COLLEGE
RESPONDENT’S MOTION TO DISQUALIFY PETITIONERS’ COUNSEL
Respondent, Board of Trustees of Saint Anselm College (the “Board” or
“Respondent”), moves to disqualify Petitioners’ counsel, the law firm of Wadleigh,
Starr & Peters, PLLC (the “Wadleigh Firm”), from representing the interests of the
Petitioners against Respondent for the following reasons, and as stated in greater
detail in Respondent’s supporting Memorandum of Law.
1. In the above-captioned action, the Wadleigh Firm currently represents
Petitioner, Abbot Mark Cooper, O.S.B., Chair of the Members and Chancellor of
Saint Anselm College, (the “Abbot”) as well as named Petitioner, Saint Anselm
College Corporation1 against the Board. Partners of the Wadleigh Firm formerly
served as counsel of record to the Saint Anselm College Corporation (the
“College” or the “College Corporation”), in matters substantially related, if not
identical, to the matters raised in the Petition.
1 Respondent filed a companion Motion to Strike “Saint Anselm College Corporation” from
Petitioners’ Petition, where the Wadleigh Firm is not legal counsel for Saint Anselm College
Corporation.
2
2. As set forth in the Affidavits of Chair of the Board, Ann Catino, and
current President of Saint Anselm College, Dr. Joseph Favazza, attached to the
supporting Memorandum of Law, the Wadleigh Firm does not currently serve as
legal counsel to the College Corporation, and therefore the College Corporation is
a former client of the Wadleigh Firm.
3. The interests of the Abbot as alleged in the Petition are directly and
materially adverse to the interests of the College Corporation and the Board.
The College is currently seeking reaccreditation from its regional accrediting
agency, the New England Commission of Higher Education (“NECHE”). An issue
raised by NECHE is the governance authority for amending the College
Corporation’s bylaws. As set forth in greater detail in Respondent’s supporting
Memorandum of Law, the representation of the Petitioners in this matter
regarding the process for amending the bylaws adversely affects the College’s
reaccreditation efforts in this regard. In addition, allegations in the Petition
raise questions about the validity of the College’s 2009 corporate governance
structure and New Hampshire law regarding the process for amending the
bylaws of the College Corporation, matters in which the Wadleigh Firm served as
legal counsel for the College Corporation. Thus, the Wadleigh Firm must be
disqualified under New Hampshire Rules of Professional Conduct 1.9(b) and 1.10.
4. In the alternative, if this Court rules that the College is a current
client of the Wadleigh Firm, as opposed to a former client, the Wadleigh Firm is
still disqualified under New Hampshire Rule of Professional Conduct 1.7, where
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the Wadleigh Firm represents the Abbot’s position that is directly adverse to the
interests of the College and its Board of Trustees.
5. Certain members of the Wadleigh Firm, in particular, are also
disqualified under Rule 3.7 as they are likely to be necessary witnesses at trial.
6. Counsel for the Board has not contacted the Wadleigh Firm as the
Petitioners’ counsel to obtain their assent to the relief sought in this Motion as it
can be reasonably assumed that they will not assent. See N.H. Super. Ct. R.
11(C). Counsel for the Board has sought the assent of the Director of Charitable
Trusts in the relief sought by this motion, and the Director takes no position. See
id.
PRAYER FOR RELIEF
WHEREFORE, Respondent respectfully requests that this Honorable Court:
A. Disqualify the Wadleigh Firm from representing the Petitioners in this
action; and
B. Grant such other relief as may be just and proper.
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Respectfully submitted,
The Board of Trustees of Saint Anselm
College
By its attorneys,
Bernstein, Shur, Sawyer & Nelson, P.A.
Dated: December 12, 2019 /s/ Edward J. Sackman, Esq.
Ovide M. Lamontagne, Esq. (Bar No. 1419)
Edward J. Sackman, Esq. (Bar No. 19586)
Lauren M. Pritchard, Esq. (Bar No. 271587)
670 North Commercial Street, Ste. 108
P.O. Box 1120
Manchester, NH 03105-1120
603-623-8700
CERTIFICATE OF SERVICE
I hereby certify that on this date I am sending a copy of this document as
required by the rules of the court. I am electronically sending this document
through the court’s electronic filing system to all attorneys and to all other parties
who have entered electronic service contacts in this case. I am mailing or hand-
delivering copies to all other interested parties.
/s/ Edward J. Sackman, Esq.
Edward J. Sackman, Esq.
STATE OF NEW HAMPSHIRE
SUPERIOR COURT
HILLSBOROUGH, SS. No. 216-2019-CV-01068
NORTHERN DISTRICT
ABBOT MARK COOPER, O.S.B., et. al
v.
BOARD OF TRUSTEES OF SAINT ANSELM COLLEGE
MEMORANDUM OF LAW IN SUPPORT OF RESPONDENT’S MOTION TO
DISQUALIFY PETITIONERS’ COUNSEL
INTRODUCTION
Petitioners’ counsel, the law firm of Wadleigh, Starr & Peters, PLLC (the
“Wadleigh Firm”), must be disqualified because in this case the Wadleigh Firm is
advocating positions adverse to the interests of the Firm’s former client, Saint
Anselm College (the “College”), regarding the College’s 2009 Bylaws, even though
the Wadleigh Firm assisted the College in adopting those very Bylaws.
Respondent, Board of Trustees of Saint Anselm College (the “Board”), is the
duly constituted governing body of the College, which is a New Hampshire non-
profit corporation organized in its current form in 2009 with the assistance of the
Wadleigh Firm. The Board moves to disqualify the Wadleigh Firm, which currently
represents Petitioner, Abbot Mark Cooper, O.S.B., Chair of the Members and
Chancellor of Saint Anselm College (the “Abbot”), against the Board. The Wadleigh
Firm also purports to represent the College against the Board, although that is
currently the subject of a contemporaneously filed motion to strike. Partners of the
2
Wadleigh Firm formerly served as counsel to the College in matters substantially
related, if not identical, to the matters raised in the Abbot’s Petition when they
assisted the College in adopting its current corporate structure in 2009 as legal
counsel and vouched for the legitimacy of that structure in subsequent opinion
letters.
The College has not used the Wadleigh Firm as corporate counsel for several
years, instead choosing to work with undersigned counsel. As a result, the College
and its governing body, the Board, are now formers clients of the Wadleigh Firm.
New Hampshire Rule of Professional Conduct 1.9(b) precludes the Wadleigh Firm
from pursuing matters adverse to its former clients where they are substantially
related to the Wadleigh Firm’s prior representation. Further, in 2013 and 2016, the
Wadleigh Firm issued opinion letters in conjunction with bond financing for the
College providing assurances of the legitimacy of the College’s authority to act
pursuant to the same 2009 corporate governance structure the Wadleigh Firm
assisted the College in adopting. As a result, the Wadleigh Firm must be
disqualified under New Hampshire Rule of Professional Conduct 1.9(b) for taking
adverse action against its former client in not just one but three substantially
related matters.
BACKGROUND
I. The Wadleigh Firm was counsel to the College during its 2009
corporate governance reorganization.
The College has existed in some form in New Hampshire since 1889. From
its founding, the College has also had a relationship with the monks of Saint
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Anselm Abbey. Prior to 2009, the “Order of Saint Benedict of New Hampshire” (the
“College Corporation”) housed both the Saint Anselm Abbey Monastic Community
and Saint Anselm College. Aff. of J. DeFelice (“DeFelice Aff.”) ¶ 4 (attached hereto
as Exhibit A). The College Corporation relies on accreditation from a regional
accrediting agency in order to qualify for federal student aid and other important
federal benefits. Aff. of A. Catino (“Catino Aff.”) ¶ 9 (attached hereto as Exhibit B).
In 2009 the New England Association of Schools and Colleges (“NEASC”) was
the relevant accrediting agency, and it expressed concerns about the College’s
governance system during its decennial accrediting process. Id. In order to address
NEASC’s concerns about governance and to facilitate reaccreditation, Fr. Jonathan
DeFelice, then President of Saint Anselm College, and Abbot Matthew Leavy, then
leader of the Monastic Community, undertook a reorganization of the College’s
corporate governance. Id. The Wadleigh Firm represented and advised the
leadership of the College Corporation through the 2009 governance restructuring of
the College Corporation. Id. ¶ 11; see also Catino Aff. ¶ 6.
Following the Wadleigh Firm’s advice, the College Corporation undertook a
corporate reorganization that accomplished three primary goals. First, the Saint
Anselm Abbey monastic community, was transferred from the College Corporation
to a new voluntary corporation known as “Saint Anselm Abbey.” DeFelice Aff. ¶ 6.
Second, the College Corporation was renamed “Saint Anselm College.” Id. ¶ 7.
Third, Members of the Saint Anselm Abbey monastic community (the “Members”),
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who up to that point had held the governing authority for the College Corporation,
adopted Amended and Restated Bylaws (the “2009 Bylaws”). DeFelice Aff. ¶ 8.
The 2009 Bylaws established the Members as “members” of the voluntary
corporation, which is akin to being shareholders of a for-profit corporation. Id. In
addition, the 2009 Bylaws delegated governing authority to a Board of Trustees
comprised of predominantly non-Member Trustees. Id. As a result, the 2009 Bylaws
organized a voluntary corporation with “members” with certain reserved powers,
and a Board of Trustees with delegated governing authority. Id. ¶ 8.
In sum, by virtue of the 2009 corporate reorganization for which the
Wadleigh Firm was legal counsel, the Saint Anselm Abbey Monastic Community
was moved from the College Corporation to a new voluntary corporation; the monks
were made members of the College Corporation; and the College Corporation
adopted the 2009 Bylaws which granted governing authority to a Board of Trustees
comprised of primarily non-monks. Following these changes, Fr. DeFelice, with the
knowledge and consent of the Members and the Board of Trustees, informed
NEASC that as a result of the reorganization, the College Corporation now had a
governance structure with a sufficiently independent governing body, the Board of
Trustees. Id. ¶ 11.
The Wadleigh Firm, and specifically Attorney William Tucker, provided legal
advice to Fr. DeFelice and his colleagues regarding the 2009 reorganization of the
College Corporation. Id. ¶ 12. Fr. DeFelice relied on Attorney Tucker and the
Wadleigh Firm to advise him and the College Corporation about the legal
5
requirements for establishing the College Corporation as a voluntary New
Hampshire corporation with members and a Board of Trustees. DeFelice Aff. ¶ 12.
During the course of providing that advice, Attorney Tucker rendered his opinion to
Fr. DeFelice, on behalf of the College Corporation, that the corporate
reorganization, including the 2009 Bylaws, complied with New Hampshire law. Id.
It is this very reorganization that is the subject matter of the Petition in which the
Wadleigh Firm represents the Abbot’s interests against the Board and, by
extension, the College. Among the allegations asserted in the Petition, the
Wadleigh Firm asserts that if RSA 292:6 applies to the College Corporation, the
2009 Bylaws may in fact be invalid. See Petition ¶¶ 22 – 28, 51 – 52.
II. The College Corporation is a Former Client of the Wadleigh Firm.
The Wadleigh Firm no longer represents the College Corporation. The
President of the College is authorized to retain legal counsel to assist the President,
the Board of Trustees, and the College Administration in executing their respective
duties owed to the college. Aff. of J. Favazza (“Favazza Aff.”) ¶ 2 (attached hereto
as Exhibit C). This arrangement is consistent with New Hampshire Rule of
Professional Conduct 1.13(a), which provides that a “lawyer employed or retained
by an organization represents the organization acting through its duly authorized
constituents”—in this case, the Board and the President.
In 2017, Dr. Steven DiSalvo, former President of the College, retained
Attorney Ovide M. Lamontagne and the law firm of Bernstein, Shur, Sawyer, &
Nelson, P.A. (“Bernstein Shur”) to serve as the College’s outside general counsel.
6
Catino Aff. ¶ 3; Favazza Aff. ¶ 3. Dr. Joseph Favazza, current President of the
College, opted to continue the engagement of Attorney Lamontagne and Bernstein
Shur as the College’s outside counsel. Favazza Aff. ¶ 4. According to Dr. Favazza,
in the last few years, the Wadleigh Firm has not served as legal counsel to the
College except in the limited area of bond financing and refinancing. Favazza Aff. ¶
5; see also Catino Aff. ¶ 5. Following the institution of this lawsuit, and consistent
with its ongoing relationship with undersigned counsel, the Board and the College
retained Bernstein Shur to defend their interests in this litigation.
DISCUSSION
I. The Wadleigh Firm is disqualified from representing the Abbot in this
matter under Professional Rules 1.9(b) and 1.10.
New Hampshire Rule of Professional Conduct 1.9(b) provides in relevant part
that a “lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related matter in
which that person's interests are materially adverse to the interests of the former
client.” To establish a Rule 1.9(b) violation, the following four elements must be
met:
(1) there must have been a valid attorney-client relationship between
the attorney and the former client;
(2) the interests of the present and former clients must be materially
adverse; (3) the former client must not have consented, in an informed manner,
to the new representation; and (4) the current matter and the former matter must be the same or
substantially related.
7
See Sullivan Cnty. Reg’l Refuse Disposal Dist. v. Town of Acworth, 141 N.H. 479,
481 – 82 (1996) (citations omitted). Where all of these elements are present,
disqualification is mandatory because “a court must irrebuttably presume that the
attorney acquired confidential information in the former representation.” Id. at 483.
New Hampshire Rule of Professional Conduct 1.10 provides that when
lawyers are associated in a firm, “none of them shall knowingly represent a client
when any one of them practicing alone would be prohibited from doing so by Rules
1.7 or 1.9.” The imputation of conflicts to lawyers associated in a firm is grounded in
the notion that “each lawyer is vicariously bound by the obligation of loyalty owed
by each lawyer with whom the lawyer is associated.” Franklin v. Callum, 146 N.H.
779, 783 (2001) (quotation omitted). As a result, if one or more attorneys at the
Wadleigh Firm formerly represented the College Corporation, another attorney at
the Wadleigh Firm cannot now represent the Abbot in a substantially related
matter materially adverse to the College Corporation.
A. The College Corporation had a valid attorney-client relationship with the
Wadleigh Firm.
An attorney-client relationship exists when: “(1) a person seeks advice or
assistance from an attorney, (2) the advice or assistance sought pertains to matters
within the attorney’s professional competence, and (3) the attorney expressly or
impliedly agrees to give or actually gives the desired advice or assistance.” In re
Bruzga’s Case, 162 N.H. 52, 58 (2011).
8
Here, the record provides ample evidence of a valid attorney-client
relationship between the Wadleigh Firm and both the College Corporation and the
Board. Attorney Tucker and the Wadleigh Firm served as corporate counsel to the
College Corporation during the 2009 corporate governance reorganization. Catino
Aff. ¶ 6; DeFelice Aff. ¶ 12. As part of that reorganization, the Board was created as
it is presently organized. DeFelice Aff. ¶ 8. Attorney Tucker rendered his advice to
Fr. DeFelice regarding the corporate governance reorganization. Id.
Fr. DeFelice relied on Attorney Tucker and the Wadleigh Firm during the
2009 reorganization to ensure the reorganization was effective and compliant with
New Hampshire law. Id. In addition, the Wadleigh Firm again served as legal
counsel for both the College Corporation and the Board as the governing entity of
the College Corporation in 2013 when it issued an opinion letter in connection with
the College Corporation’s 2013 bond offering. See Wadleigh Firm Op. Letter, July
25, 2013 (attached hereto as Exhibit D). The Wadleigh Firm again acted as counsel
for the Board when it issued an opinion letter in connection with the College
Corporation’s 2016 bond offering. See Wadleigh Firm Op. Letter, Nov. 10, 2016
(attached hereto as Exhibit E). Thus, a valid attorney-client relationship existed
between the Wadleigh Firm and the College Corporation and Board in general, and
in particular with respect to the 2009 reorganization and subsequent bond opinion
letters.
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B. The Abbot’s interests are directly and materially adverse to the interests
of the College Corporation and the Board.
The Wadleigh Firm filed the Petition on behalf of the Abbot in the midst of
the College’s reaccreditation process with the New England Higher Education
Commission (“NECHE”), formerly known as NEASC. Favazza Aff. ¶ 8. The
Abbot’s public challenge about the applicability of New Hampshire law to the
College Corporation’s current governance structure is adverse to the College’s
interests in the reaccreditation process with NECHE.
Reaccreditation is critical to the College’s viability because it is necessary in
order to be eligible to receive federal student aid for its students, among other
substantial benefits. Catino Aff. ¶ 9. The 2009 reorganization was fundamentally a
transfer of governing authority from the Members of the Saint Anselm Abbey
monastic community to the Board of Trustees. DeFelice Aff. ¶ 8. The purpose of
this transfer of governing authority was to address NEASC’s concerns about the
prior governance structure and to facilitate reaccreditation, as reflected in Fr.
DeFelice’s communications to NEASC confirming the reorganization. Id. ¶ 11.
In the Petition, the Wadleigh Firm, which advised Fr. DeFelice on that
reorganization, now claims that New Hampshire law does not apply to the College,
or in the alternative, that if New Hampshire law does apply to the College, the 2009
reorganization may not have been effective and that the Members retain governing
authority beyond their reserved powers. On behalf of the Abbot, the Wadleigh Firm
attacks the validity of the 2009 Bylaws and the 2009 corporate reorganization in
Paragraphs 22 through 28, 51, and 52 of the Petition despite the fact that the
10
Wadleigh Firm also oversaw the reorganization as corporate counsel and rendered
opinions as to the validity and effectiveness of the corporate reorganization. Catino
Aff. ¶ 6; DeFelice Aff. ¶ 12.
During the College’s current reaccreditation process, NECHE continues to
express concern over the College’s corporate governance structure. Catino Aff. ¶ 9.
In particular, NECHE criticized the Board’s lack of authority to amend the Bylaws
of the College Corporation as the governing body of the College. Id. NECHE’s
Accreditation Standard Three on Governance requires the Board of Trustees to have
“sufficient independence.” Id. The purpose of this standard is to ensure that an
institution’s governing body retains the ability to exercise their fiduciary
responsibilities. Id. RSA 292:6, which assigns the power to amend bylaws to the
Board of Trustees in the first instance, aligns the College closer to NECHE’s
reaccreditation standards than Article XX of the current Bylaws. Id. ¶ 10.
RSA 292:6 acts as a default provision when a corporation’s constituents
dispute who has the power to amend bylaws and the articles of agreement are silent
on the issue of bylaw amendments. Here, among other reasons, the College’s
Articles of Agreement are silent on the issue of amending bylaws, so RSA 292:6
should apply. Yet, on behalf of the Abbot, the Wadleigh Firm seeks to deny the
applicability of New Hampshire law and RSA 292:6 to the College. The Board has
an interest in complying with New Hampshire law and RSA 292:6, and the Abbot’s
interests, as stated through the Petition, are directly and materially adverse to
those of the Board and the College. What is worse, however, are the allegations of
11
the Wadleigh Firm asserted in the Petition that call into question the validity and
effectiveness of the College Corporation’s 2009 corporate governance reorganization
which the Wadleigh Firm oversaw and about which it provided legal advice—a
critical, systemic shift in the College’s governance intended to ensure NEASC
reaccreditation in 2009. DeFelice Aff. ¶¶ 4, 11.
As if that were not enough to establish material adversity, the Abbot’s
Petition also risks destabilizing the College’s relationships with its bondholders and
insurance carriers. First, the Abbott’s position that if New Hampshire RSA 292:6
applies to the College, then the 2009 Bylaws may never have been validly adopted
undermines the debt that the College issued in 2013 and 2016 under the authority
of the Board to act on the College’s behalf, and with the Wadleigh Firm’s legal
advice, as evidence by the Wadleigh Firm’s corresponding 2013 and 2016 opinion
letters assuring the prospective bondholders of the Board’s authority. See Ex. D;
Ex. E.
Consistent with the 2009 reorganization, and upon the Wadleigh Firm’s legal
advice, the Board approved and executed the issuance of the bonds in 2013 and
2016. See Bd. of Trustees Meeting Minutes, Sept. 12, 2016 (attached hereto as
Exhibit F); Bd. of Trustees Meeting Minutes, June 7, 2013 (attached hereto as
Exhibit G). Moreover, the Wadleigh Firm’s opinion letters—relying in part on the
Wadleigh Firm’s “actual knowledge”—stated that the bond documents were duly
executed and delivered by the College, and that the College, through its Board of
Trustees, had full authority to execute the documents. See Ex. D at 24, 25; Ex. E at
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24, 25. Through the Abbot’s Petition, the Wadleigh Firm is now taking the position
that the 2009 Bylaws may never have been properly enacted, meaning that the
Board was never granted the governing authority it exercised in authorizing and
issuing the bonds. While the Board disagrees with these arguments, on their face,
they put the Wadleigh Firm adverse not only to its former client, but also to its own
opinion letters.
Second, upon information and belief, under the College’s commercial general
liability insurance policy with United Educators Insurance, claims by one insured
against another insured are excluded from coverage. By including “Saint Anselm
College Corporation” as a Petitioner in the caption of its Petition, the Wadleigh
Firm risks excluding both the Board and the College Corporation from coverage
under the policy. Thus, the Petition also financially prejudices the College
Corporation and the Board because it could result in an exclusion from otherwise
available coverage. This point underscores the fundamental conflict regarding the
Wadleigh Firm’s position: the College Corporation has been conducting its affairs
for the last ten years as though the 2009 Bylaws were effective—many times in
consultation with the Wadleigh Firm. Thus, the Court should understand that the
Wadleigh Firm’s position is more than just adverse to its former client—it could
literally invalidate the very work the Wadleigh Firm did for the College
Corporation.
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C. The Board and the College Corporation do not consent to the conflict.
It should come as no surprise that the College and the Board do not consent
and have never consented to the Wadleigh Firm’s representation of the Abbot in
this matter, or, incidentally, that they were never asked. Catino Aff. ¶ 7; Favazza
Aff. ¶ 6. Both current President Dr. Favazza and current Chair of the Board of
Trustees, Attorney Ann M. Catino, affirmed that the College’s corporate counsel is
Bernstein Shur. Catino Aff. ¶ 8; Favazza Aff. ¶ 7. The Wadleigh Firm has not
provided legal services to the College Corporation or the Board over the last several
years, except in bond financing and refinancing. Catino Aff. ¶ 5; Favazza Aff. ¶ 5.
As detailed above, the actions of the Wadleigh Firm in pursuing the Abbot’s Petition
are adverse to the interests of the College Corporation in the context of the bond
work as well.
D. These matters are substantially related and effectively the same.
Matters are substantially related if “they involve the same transaction or
legal dispute or if there otherwise is a substantial risk that confidential factual
information . . . would materially advance the client’s position in the subsequent
matter.” Galvin v. Specialized Loan Servicing LLC, No. 15-cv-386-JL, 2015 WL
10097218, at *4 (D.N.H. 2015) (quoting N.H. R. Prof. Conduct 1.9(a), 2004 ABA
Model Code cmt. [3]). The analysis centers on “whether facts which were necessary
to the first representation are necessary to the present litigation.” Id. at *5
(quotation omitted).
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Here, the current subject matter of the above-captioned action and the
former matters are substantially related and effectively involve the same issues.
Attorney Tucker and the Wadleigh Firm served as corporate counsel to the College
Corporation through its 2009 reorganization and rendered opinions about that
reorganization to then President, Fr. DeFelice. Catino Aff. ¶ 5; Favazza Aff. ¶ 5.
The Wadleigh Firm assured Fr. DeFelice and his colleagues that the reorganization,
which delegated governing authority from the Members to the Board via the 2009
Bylaws, was effective and compliant with New Hampshire law. DeFelice Aff. ¶ 12.
Not only did Fr. DeFelice and the Board rely on the legal opinions and advice
rendered by the Wadleigh Firm, but NEASC also relied on the effectiveness of the
governance reorganization when it reaccredited the College. Id. ¶ 11.
The Abbot’s Petition, on its face, questions the validity and effectiveness of
the 2009 Bylaws and the College’s reorganization. In representing the Abbot, the
Wadleigh Firm is challenging the validity of its own work product when it served as
legal counsel to the College Corporation. But the Wadleigh Firm’s current position
on behalf of the Abbot is not just adverse to the College Corporation; it is the
antithesis of its position in 2009 when it helped the College Corporation reorganize.
Because both matters take opposite positions on the results of the 2009
reorganization, the matters are substantially related, if not the same.
Moreover, the Wadleigh Firm’s current position is also substantially related
to the bond work it did for the College in 2013 and again in 2016. Part of that work
required the Wadleigh Firm to opine, on behalf of the College, that the Board was
15
duly authorized to issue the debt and had in fact done so. The Wadleigh Firm now
alleges that the reorganization may never have happened, and the Monastic
Community retained its governing powers. As a result, this action is also
substantially related to the Wadleigh Firm’s 2013 and 2016 opinion letters, which
assured prospective bondholders of the legitimacy of the College’s corporate
structure and authority.
Where all of the requirements for disqualification under Rule 1.9(b) are met,
the Wadleigh Firm should be disqualified.
E. Disqualification is necessary to uphold the Wadleigh Firm’s duty of
loyalty.
The purpose of disqualification is to “protect a client’s secrets and confidences
by preventing even the possibility that they will subsequently be used against the
client in related litigation.” Goodrich v. Goodrich, 158 N.H. 130, 136 (2008)
(quotation omitted). Moreover, disqualification upholds the attorney’s duty of
loyalty to a client by preventing the attorney “from attacking, or interpreting, work
[the attorney] performed, or supervised for the former client.” Sullivan, 141 N.H. at
484.
For example, in Franklin, the court disqualified the Gardner & Fulton law
firm from representing the plaintiff, where the attorney could be required to
interpret an agreement drafted by another attorney at the firm. Franklin, 146 N.H.
at 783. The plaintiff, a member of New Hampshire’s solid waste management
district, filed suit to obtain access to the legal bills of the Project, a solid waste
management cooperative agreement between the New Hampshire and Vermont
16
districts. Franklin, 146 N.H. at 779 – 80. The plaintiff retained Attorney Adele
Fulton to represent him. Id. at 780. Attorney Fulton’s partner at the Gardner &
Fulton law firm previously served as counsel to the Project and drafted agreements
forming the Project. Id. at 783. Where Attorney Fulton would be required to apply
and interpret those agreements in litigation against the Project, the court held that
Attorney Fulton was disqualified pursuant to Rules 1.9 and 1.10. Id.
Here, the very law firm that was counsel during the 2009 corporate
reorganization of the College Corporation will be attacking or interpreting their own
work. The New Hampshire Rules of Professional Conduct bar precisely this sort of
conflict of interest from occurring as a violation of an attorney’s duty of loyalty. See
Id. at 783. Like the firm in Franklin, the Wadleigh Firm must be disqualified.
F. Attorney Tucker is disqualified from acting as an advocate under Rule 3.7,
where he is likely to be a necessary witness in this case.
The Wadleigh Firm’s direct involvement in the 2009 reorganization
implicates not just issues of client loyalty, but also risks compromising the firm’s
candor to the Court. New Hampshire Rule of Professional Conduct 3.7 provides
that:
A lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness unless: (1) the testimony relates to an
uncontested issue; (2) the testimony relates to the nature and value of
legal services rendered in the case; or (3) disqualification of the lawyer
would work unreasonable hardship on the client.
This rule “reflects a broad concern that the administration of justice not only
be fair, but also appear fair.” McElroy v. Gaffney, 129 N.H. 382, 389 (1987)
(quotation omitted); see also Pearson v. First NH Mortg. Corp., 200 F.3d 30,
17
36 – 37 (1st Cir. 1999) (finding the fact that firm members could have been
called as material witnesses in bankruptcy proceedings, contributed to the
“considerable evidence of serious conflicts of interest”).
Attorney Tucker’s prospective testimony does not involve an
undisputed matter or the value of legal services, so this question becomes
whether his disqualification would cause undue hardship. In evaluating that
question, the Court must balance “the interests of the client and those of the
opposing party.” McElroy, 129 N.H. at 389 (quotation omitted). The Court
will consider “whether plaintiff’s counsel’s knowledge of the facts underlying
[the] suit is extensive and unique.” Id. (citation omitted). Financial hardship
and delay, however, “do not, by themselves, constitute unreasonable
hardship.” Id.
First, there is no unreasonable hardship on the Abbot because the
College is raising the issue of disqualification within the first thirty (30) days
after receiving the Petition. There are many qualified attorneys in New
Hampshire who could potentially represent the Abbot without running afoul
of Rule 3.7. Where the College raises this issue at the outset, the Abbot has
time to retain such counsel.
Second, the College would suffer a gross injustice if the Abbot were
allowed to proceed with the Wadleigh Firm because Attorney Tucker is a
necessary witness in the case as a result of his involvement in the 2009
reorganization. Attorney Tucker rendered legal advice and opinions as to the
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College’s corporate governance reorganization and the 2009 Bylaws, and the
Abbot, represented by the Wadleigh Firm, now seeks to challenge the validity
of the reorganization and the 2009 Bylaws. Attorney Tucker will almost
certainly be called upon to testify about his prior legal services to the College
and what they were intended to accomplish. Thus, Attorney Tucker in
particular should be disqualified pursuant to Rule 3.7 in addition to the
Wadleigh Firm’s general disqualification under Rules 1.9(b) and 1.10 for the
reasons stated above.
II. Even if the court finds that the College is a current client, the
Wadleigh Firm is still disqualified under Rules 1.7 and 1.10 where its
clients would be directly adverse to each other.
New Hampshire Rule of Professional Conduct 1.7 provides that “a lawyer
shall not represent a client if the representation involves a concurrent conflict of
interest.” A concurrent conflict of interest exists if “the representation of one client
will be directly adverse to another client.” N.H. R. Prof. Conduct 1.7; see also N.H.
R. Prof. Conduct 1.10 (prohibiting lawyers associated in a firm from representing a
client when any one of them would be disqualified under Rule 1.7). Even where
matters are wholly unrelated, lawyers still cannot “act as advocate against a client
the lawyer represents in some other matter.” Franklin, 146 N.H. at 782 (quotation
omitted). The “undivided loyalty that a lawyer owes to his clients forbids him,
without the clients’ consent, from acting for client A in one action and at the same
time against client A in another.” Bryan Corp. v. Abrano, 474 Mass. 504, 511 (2016)
19
(applying Mass. R. Prof. Conduct 1.7). This principle operates “with equal force”
even where one client is a corporation. Bryan Corp., 474 Mass. at 512.
For example, counsel for the defendant in Franklin was also disqualified
pursuant to Rule 1.7. Franklin, 146 N.H. at 782. The court found that defendant’s
counsel represented both the Project and the New Hampshire district. Id. Although
the New Hampshire district was not a party in the case, it opposed the Project’s
position that access to legal documents by the members of the New Hampshire
district should be restricted. Id. 782. Thus, the court held that counsel’s current
clients, the Project and the district, were directly adverse and counsel should be
disqualified. Id.
Here, to the extent the Wadleigh Firm purports to still represent the College,
which apparently it does insofar as it initiated this litigation on behalf of the
College as Petitioner, it should be disqualified because the Abbot’s interests are
directly adverse to those of the College and the Board. Again, Attorney Tucker and
the Wadleigh Firm represented the College during the 2009 corporate governance
reorganization. Catino Aff. ¶ 5; Favazza Aff. ¶ 5. As set forth in the Abbot’s Petition,
the Wadleigh Firm now represents a client challenging the reorganization that it
oversaw. The Abbot is thus directly adverse to the College and the Board, and the
Wadleigh Firm should be disqualified pursuant to Rules 1.7 and 1.10. Under any
scenario, the Wadleigh Firm cannot represent the Abbot in this litigation consistent
with its obligations under the New Hampshire Rules of Professional Conduct.
20
CONCLUSION
The College Corporation and its governing body, the Board of Trustees, are
now former clients of the Wadleigh Firm. Under Rule 1.9(b), the Wadleigh Firm
must be disqualified because it now takes positions, on behalf of the Abbot, that are
contrary to the College Corporation’s interests regarding NECHE reaccreditation
and the 2009 corporate reorganization that the Wadleigh Firm helped to create as
corporate counsel. Even if the Court finds that the College is a current client, the
Wadleigh Firm is still disqualified under Rule 1.7 where the Abbot’s interests are
directly adverse to the College.
Respectfully submitted,
The Board of Trustees of Saint Anselm
College
By its attorneys,
Bernstein, Shur, Sawyer & Nelson, P.A.
Dated: December 12, 2019 /s/ Edward J. Sackman, Esq.
Ovide M. Lamontagne, Esq. (Bar No. 1419)
Edward J. Sackman, Esq. (Bar No. 19586)
Lauren M. Pritchard, Esq. (Bar No. 271587)
670 North Commercial Street, Ste. 108
P.O. Box 1120
Manchester, NH 03105-1120
603-623-8700
21
CERTIFICATE OF SERVICE
I hereby certify that on this date I am sending a copy of this document as
required by the rules of the court. I am electronically sending this document
through the court’s electronic filing system to all attorneys and to all other parties
who have entered electronic service contacts in this case. I am mailing or hand-
delivering copies to all other interested parties.
/s/ Edward J. Sackman, Esq.
Edward J. Sackman, Esq.
23.
SCHEDULE IVTO THE
CONTRACT OF PURCHASE
Form of Opinion of Wadleigh, Starr & Peters, P.L.L.C.,Counsel to the Institution
July 25, 2013
New Hampshire Health and Education Facilities Authority54 South State StreetConcord, New Hampshire 03301
U.S. Bank National AssociationOne Federal Street, 3rd FloorBoston, Massachusetts 02110
Piper Jaffray & Co.as Underwriter
71 South Wacker Drive, Suite 2400Chicago, Illinois 60606
Saint Anseim College100 Saint Anselm DriveManchester, New Hampshire 03102
Ladies and Gentlemen:
This opinion is provided to you pursuant to the requirements of the Contract of Purchase datedJuly 11, 2013, by and between Piper Jaifray & Co. (the "Underwriter") and the New Hampshire Health andEducation Facilities Authority (the "Authority") and accepted by Saint Anselm College (the "Institution") relating tothe purchase of the $12,000,000 Revenue Bonds, Saint Anselm College Issue, Series 2013 (the "Bonds") of theAuthority.
We serve as counsel to the Institution in connection with the sale of the Bonds.
All references in this opinion to instruments and other defined terms shall mean the instrumentsand other terms as defined in the Contract of Purchase. We have reviewed and relied upon the instruments referredto in this opinion and in the Record of Proceedings and the proceedings of the Institution in connection with thistransaction. We have also examined and relied upon such public records and other documents and materials as wehave deemed necessary under the circumstances in connection with this opinion.
In rendering the opinions herein qualified by our knowledge, we have made due inquiry as to suchmatters and are not aware of any information which would lead us to form a different legal opinion. As to matters offact, and in making the investigations referred to in our opinion, we have relied upon: (i) our actual knowledge; (ii)the information obtained from public officials and public records that is referred to herein; and (iii) representationscontained in the Agreement, the representations of the officers of the Institution contained in the Certificate(s) of theInstitution on behalf of the Institution delivered at closing included in the Record of Proceedings and discussionswith representatives of the Institution. We are not aware of any factual information which would lead us to form alegal opinion that the documents and certificates we have examined contain any untrue statement of a material fact.
We have assumed that the following facts are true in rendering this opmi.... (i) with the exceptionof the signatures of representatives of the Institution, the genuineness of all signatures on all documents; (ii) theauthenticity of all documents (other than those executed or delivered by the Institution) submitted to us as originals;(iii) the conformity to the originals of all documents submitted to us as copies; (iv) the correctness and accuracy ofall facts set forth in all certificates and reports identified in this opinion; (v) the due authorization, execution and
1259145.3 037492 cop
24.
delivery of, and the validity and binding effect of the Agreement, the Tax Regulatory Agreement, the DisclosureAgreement, the Note and the Letter of Representation (collectively the "Bond Documents") with regard to theparties to those agreements other than the Institution; (vi) the delivery to or for the benefit of the Institution at theclosing of the funds to be loaned pursuant to the Bond Documents; and (vii) the Institution has title to the propertydescribed in the Financing Statements. We are not aware of any factual information which would lead us toconclude that the foregoing assumptions are incorrect in any material respect.
The opinions expressed below are qualified to the extent that the enforceability of any of theprovisions of any of the Bond Documents, or of any rights granted to any party thereunder may be subject to oraffected by: (i) applicable banlcruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, equitablesubordination or similar laws affecting the rights of creditors generally; (ii) statutory or decisional law concerningrecourse by creditors to security in the absence of notice or hearing; (iii) general principles of equity and limitationson the availability of the remedy of specific performance, injunctive or other relief in equity which is subject to thediscretion of the court before which any proceeding for such remedy may be brought (regardless of whetherenforceability is considered in a proceeding in equity or at law); (iv) compliance with, and limitations imposed by,procedural requirements of state law, including the Uniform Commercial Code, relating to the exercise of remediesby a lender; (v) limitations based on statutes or on public policy limiting a person's right to waive the benefits ofstatutory provisions or common law rights; (vi) limitations on the right of a lender or creditor to exercise rights andremedies or impose penalties for late payments or other defaults by a borrower or debtor if it is determined that (a)the defaults are not material, the penalties bear no reasonable relation to the damage suffered by the lender orcreditor as a result of the delinquencies or defaults, or it cannot be demonstrated that the enforcement of therestrictions or burdens is reasonably necessary for the protection of the lender or creditor, or (b) the lender's orcreditor's enforcement of the covenants or provisions under the circumstances would violate the lender's or creditor'simplied covenants of good faith and fair dealing; (vii) the unenforceability under certain circumstances of provisionsto the effect that failure to exercise or delay in exercising rights or remedies will not operate as a waiver of the rightor remedy; and (viii) the unenforceabiity under certain circumstances, under New Hampshire or federal statutes, orcourt decisions, of provisions indemnifying or prospectively releasing a party against liability for its own wrongfulor negligent acts or where the release or indemnification is contrary to public policy. Subject to paragraphs (i) and(iii) above, the application of the above limitations will not render the Bond Documents invalid as a whole orsubstantially interfere with realization of the principal benefits or security provided by the Bond Documents.
In rendering the opinions set forth herein, we call your attention to the fact that we are not opiningwith respect to environmental, real estate, zoning or land use matters except as specifically set forth in a separateland use opinion of even date issued by [our firm}[ I.
We render no opinion with respect to the enforceability of any provision in the Bond Documentsassigning or granting a security interest in any account or claim subject to the Assignment of Claims Act, 41U.S.C.A. §15 and 31 U.S.C.A. §3727 or comparable state statutes
We have reviewed the instniments referred to in this opinion and the proceedings of the Institutionin connection with this transaction. We have also examined such public records and other documents and materialsas we have deemed necessary under the circumstances in connection with this opinion. On the basis of suchexamination, we are of the opinion that:
(1) The Institution has been duly created and is validly existing as a not -for-profitcorporation in good standing under the laws of the State of New Hampshire.
(2) The Bond Documents have been duly authorized, executed and delivered by theInstitution and constitute legal, valid and binding agreements of the Institution, enforceable inaccordance with their terms.
(3) To the best of our knowledge, after due inquiry, there is no action, suit,proceeding or investigation at law or in equity before or by any court, public board or body, or anyother legal or governmental proceeding, pending or threatened against or affecting the Institutionor the Project, wherein an unfavorable decision, ruling or fmding would materially adverselyaffect the Institution, the Project, the Facility, the Property or the transactions contemplated by the
1259145.3 037492 COP
25.
Official Statement, the Bond Resolution, the Bond Documents or the Contract of Purchase or thevalidity of the Bonds.
(4) The execution and delivery of the Bond Documents by the Institution, and theapproval of the Official Statement and the Contract of Purchase, and compliance with theprovisions thereof, under the circumstances contemplated thereby, do not and will not in anymaterial respect conflict with or constitute on the part of the Institution a breach of or defaultunder: (1) any existing law, regulation, court order or consent decree to which the Institution issubject ; or (2) to the best of our knowledge, foUowing due inquiry, any other material agreementor instrument to which the Institution is a party.
(5) The Institution has duly approved the Contract of Purchase and the Institutionhas approved the inclusion in the Official Statement of the information relating to the Institution.
(6) On the basis of the information which was developed in the course ofperformance of our services in connection with the preparation of the Official Statement, nothinghas come to our attention which would lead us to believe that the Official Statement (except forany financial statements and other financial and statistical data therein, as to which we express noopinion), as of its date and as of the date hereof, contains an untrue statement of a material fact, asit relates to the Institution, the Project, the Facility or the Property, or omits to state a material fact,as it relates to the Institution, the Project, the Facility or the Property, required to be stated thereinor necessary to make the statements therein, in the light of the circumstances under which theywere made, not misleading.
(7) The Institution has full legal power and authority to enter into the BondDocuments, and has full legal power and authority, and all necessary material licenses, approvalsand permits, to own and operate its educational facilities, including the Project.
(8) The Institution is an organization described in Section 50l(c)(3) of the InternalRevenue Code of 1986, as amended (the "Code"), is exempt from federal income tax underSection 501(a) of the Code, and is not a "private foundation" as defined in Section 509(a) of theCode. The Project will be used in furtherance of the "exempt purpose" of the Institution asdefined in Section 501 (c)(3) of the Code.
(9) We have caused to be filed financing statements in conformity with the UniformCommercial Code of the State of New Hampshire ("UCC") in the office of the Secretary of Stateof the State of New Hampshire (the "Filing Office"): (a) naming the Institution as debtor and theAuthority as secured party with respect to the Gross Receipts of the Institution; and (b) naming theAuthority as debtor and the Bond Trustee as secured party with respect to the Authority's rightsassigned to the Trustee under the Bond Indenture. No flu-ther or subsequent recording or filing orrerecording or refiling of such instruments, other than continuation statements, is necessary inorder to preserve, perfect (to the extent the same may be perfected by filing) or maintain theinterests of the Authority in the Gross Receipts created by the Agreement and the interests of theBond Trustee assigned to it by the Authority under the Bond Indenture.
(10) We have caused to be searched the applicable Uniform Commercial Codefinancing statement filings in the Filing Office naming the Institution as debtor. In reliance on thissearch, and assuming the vesting of title to the Gross Receipts in the Institution, the filing of thefinancing statements identified in the preceding paragraph perfects a valid security interest ofrecord in the Gross Receipts, to the extent perfection may be obtainedby filing and subject to thePermitted Encumbrances identified in Schedule C to the Agreement.
This opinion is rendered as of the date set forth above and we express no opinion as tocircumstances or events which may occur subsequent to such date. This opinion may be reliedupon by the addressees, their successors and assigns and by no other person or entity, except that
1259145.3 037492 COP
26.
Counsel to all of the parties to the above -referenced transaction, including Bond Counsel, may relyon this opinion as if it were specifically addressed to them.
Very truly yours,
1259145.3 037492 cop
23.
SCHEDULE. IV TO THE
CONTRACT OF PURCHASE
Form of Opinion of Wadleigh, Starr & Peters, P.L.L.C., Counsel to the Institution
November 10, 2016
New Hampshire Health and Education Facilities Authority 54 South State Street Concord, New Hampshire 03301
U.S. Bank National Association One Federal Street, 3rd Floor Boston, Massachusetts 02110
Piper Jaffray & Co., as Underwriter
71 South Wacker Drive, Suite 2400 Chicago, Illinois 60606
Saint Anselm College 100 Saint Anselm Drive Manchester, New Hampshire 03102
Ladies and Gentlemen:
This opinion is provided to you pursuant to the requirements of the Contract of Purchase dated October 25, 2016, by and between Piper Jaffray & Co. (the "Underwriter") and the New Hampshire Health and Education Facilities Authority (the "Authority") and accepted by Saint Anselm College (the "Institution") relating to the purchase of the $17,445,000 Revenue Bonds, Saint Anselm College Issue, Series 2016 (the "Bonds") of the Authority.
We serve as counsel to the Institution in connection with the sale of the Bonds.
All references in this opinion to instruments and other defined terms shall mean the instruments and other terms as defined in the Contract of Purchase or in the Agreement. We have reviewed and relied upon the instruments referred to in this opinion and in the Record of Proceedings and the proceedings of the Institution in
connection with this transaction. We have also examined and relied upon such public records and other documents and materials as we have deemed necessary under the circumstances in connection with this opinion.
In rendering the opinions herein qualified by our knowledge, we have made due inquiry as to such matters and are not aware of any information which would lead us to form a different legal opinion. As to matters of fact, and in making the investigations referred to in our opinion, we have relied upon: (i) our actual knowledge; (ii) the information obtained from public officials and public records that is referred to herein; and (iii) representations contained in the Agreement, the representations of the officers of the Institution contained in the Certificate(s) of the Institution on behalf of the Institution delivered at closing included in the Record of Proceedings and discussions with representatives of the Institution. We are not aware of any factual information which would lead us to form a legal opinion that the documents and certificates we have examined contain any untrue statement of a material fact.
We have assumed that the following facts are true in rendering this opinion: (i) with the exception of the signatures of representatives of the Institution, the genuineness of all signatures on all documents; (ii) the authenticity of all documents (other than those executed or delivered by the Institution) submitted to us as originals; (iii) the conformity to the originals of all documents submitted to us as copies; (iv) the correctness and accuracy of
2711890.3 040722 AGMT
24.
all facts set forth in all certificates and reports identified in this opinion; (v) the due authorization, execution and delivery of, and the validity and binding effect of the Agreement, the Tax Regulatory Agreement, the Disclosure Agreement, the Note and the Letter of Representation (collectively the "Bond Documents") with regard to the parties to those agreements other than the Institution; (vi) the delivery to or for the benefit of the Institution at the closing of the funds to be loaned pursuant to the Bond Documents; and (vii) the Institution has title to the property described in the Financing Statements (defined below). We are not aware of any factual information which would lead us to conclude that the foregoing assumptions are incorrect in any material respect.
The opinions expressed below are qualified to the extent that the enforceability of any of the provisions of any of the Bond Documents, or of any rights granted to any party thereunder may be subject to or affected by: (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, equitable subordination or similar laws affecting the rights of creditors generally; (ii) statutory or decisional law concerning recourse by creditors to security in the absence of notice or hearing; (iii) general principles of equity and limitations on the availability of the remedy of specific performance, injunctive or other relief in equity which is subject to the discretion of the court before which any proceeding for such remedy may be brought (regardless of whether enforceability is considered in a proceeding in equity or at law); (iv) compliance with, and limitations imposed by, procedural requirements of state law, including the Uniform Commercial Code, relating to the exercise of remedies by a lender; (v) limitations based on statutes or on public policy limiting a person's right to waive the benefits of statutory provisions or common law rights; (vi) limitations on the right of a lender or creditor to exercise rights and remedies or impose penalties for late payments or other defaults by a borrower or debtor if it is determined that (a) the defaults are not material, the penalties bear no reasonable relation to the damage suffered by the lender or creditor as a result of the delinquencies or defaults, or it cannot be demonstrated that the enforcement of the restrictions or burdens is reasonably necessary for the protection of the lender or creditor, or (b) the lender's or creditor's enforcement of the covenants or provisions under the circumstances would violate the lender's or creditor's implied covenants of good faith and fair dealing; (vii) the unenforceability under certain circumstances of provisions to the effect that failure to exercise or delay in exercising rights or remedies will not operate as a waiver of the right or remedy; and (viii) the unenforceability under certain circumstances, under New Hampshire or federal statutes, or court decisions, of provisions indemnifying or prospectively releasing a party against liability for its own wrongful or negligent acts or where the release or indemnification is contrary to public policy. Subject to paragraphs (i) and (iii) above, the application of the above limitations will not render the Bond Documents invalid as a whole or substantially interfere with realization of the principal benefits or security provided by the Bond Documents.
In rendering the opinions set forth herein, we call your attention to the fact that we are not opining with respect to environmental, real estate, zoning or land use matters except as specifically set forth herein.
We render no opinion with respect to the enforceability of any provision in the Bond Documents assigning or granting a security interest in any account or claim subject to the Assignment of Claims Act, 41 U.S.C.A. §15 and 31 U.S.C.A. §3727 or comparable state statutes
We have reviewed the instruments referred to in this opinion and the proceedings of the Institution in connection with this transaction. We have also examined such public records and other documents and materials as we have deemed necessary under the circumstances in connection with this opinion. On the basis of such examination, we are of the opinion that:
(1) The Institution has been duly created and is validly existing as a not -for-profit corporation in good standing under the laws of the State of New Hampshire.
(2) The Bond Documents have been duly authorized, executed and delivered by the Institution and constitute legal, valid and binding agreements of the Institution, enforceable in accordance with their terms.
(3) To the best of our knowledge, after due inquiry, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body, or any other legal or governmental proceeding, pending or threatened against or affecting the Institution or the Project, wherein an unfavorable decision, ruling or finding would materially adversely affect the Institution, the Project, the Facility, the Property or the transactions contemplated by the
2711890.3 040722 AG MT
25.
Official Statement, the Bond Resolution, the Bond Documents or the Contract of Purchase or the validity of the Bonds.
(4) The execution and delivery of the Bond Documents by the Institution, and the approval of the Official Statement and the Contract of Purchase, and compliance with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Institution a breach of or default under: (1) any existing law, regulation, court order or consent decree to which the Institution is subject ; or (2) to the best of our knowledge, following due inquiry, any other material agreement or instrument to which the Institution is a party.
(5) The Institution has duly approved the Contract of Purchase and the Institution has approved the inclusion in the Official Statement of the information relating to the Institution.
(6) On the basis of the information which was developed in the course of performance of our services in connection with the preparation of the Preliminary Official Statement and the Official Statement, nothing has come to our attention which would lead us to believe that the Preliminary Official Statement, as of its date and as of the date of execution of the Contract of Purchase, or the Official Statement, as of its date and as of the date hereof (except for any financial statements and other financial and statistical data therein, as to which we express no opinion), contains an untrue statement of a material fact, as it relates to the Institution, the Project, the Facility or the Property, or omits to state a material fact, as it relates to the Institution, the Project, the Facility or the Property or the use of proceeds of the Bonds, required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(7) The Institution has full legal power and authority to enter into the Bond Documents, and has full legal power and authority, and all necessary material licenses, approvals and permits, to own and operate its educational facilities, including the Project. To the extent any such licenses, approvals and permits relating to the Project are not available as of the date hereof, we do not know of any reason why these would not be granted as the Project progresses.
(8) The Institution is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), is exempt from federal income tax under Section 501(a) of the Code, and is not a "private foundation" as defined in Section 509(a) of the Code. The Project will be used in furtherance of the "exempt purpose" of the Institution as defined in Section 501(c)(3) of the Code.
(9) We have caused to be filed financing statements (the "Financing Statements") in conformity with the Uniform Commercial Code of the State of New Hampshire ("UCC") in the office of the Secretary of State of the State of New Hampshire (the "Filing Office"): (a) naming the Institution as debtor and the Authority as secured party with respect to the Gross Receipts of the Institution; and (b) naming the Authority as debtor and the Bond Trustee as secured party with respect to the Authority's rights assigned to the Trustee under the Bond Indenture. No further or subsequent recording or filing or rerecording or refiling of such instruments, other than continuation statements, is necessary in order to preserve, perfect (to the extent the same may be perfected by filing) or maintain the interests of the Authority in the Gross Receipts created by the Agreement and the interests of the Bond Trustee assigned to it by the Authority under the Bond Indenture.
(10) We have caused to be searched the applicable Uniform Commercial Code financing statement filings in the Filing Office naming the Institution as debtor. In reliance on this search, and assuming the vesting of title to the. Gross Receipts in the Institution, the filing of the Financing Statements identified in the preceding paragraph perfects a valid security interest of record in the Gross Receipts, to the extent perfection may be obtained by filing and subject to the Permitted Encumbrances identified in Schedule C to the Agreement.
2711890.3 040722 AGMT
26.
This opinion is rendered as of the date set forth above and we express no opinion as to circumstances or events which may occur subsequent to such date. This opinion may be relied upon by the addressees, their successors and assigns and by no other person or entity, except that Counsel to all of the parties to the above -referenced transaction, including Bond Counsel, may rely on this opinion as if it were specifically addressed to them.
Very truly yours,
2711890.3 040722 AGMT
Board of Trustees Conference Call
Monday, 12 September 2016- President’s Office
3:30 p.m.
Disicplines will have the most growth and
AGENDA ITEM PRESENTER KEY POINTS, DISCUSSION ACTION
FOLLOW-UP
Bond Resolution Harry Dumay
Joanne called the meeting to order.
Fr. Benet offered a prayer.
Harry Dumay updated the Board on steps taken since the last Board meeting. He then
presented the final project budget and timeline including the financing plan.
Motion: The administration is requesting that the Board of Trustees approves the Student
Center project budget and timeline and votes to approve the attached bond resolution.
Moved by Ann Catino. Seconded by Kevin Gould
Joanne Pietrini Smith called for a voice vote. All voted in favor, none against, no abstentions
Ann Catino congratulated Harry Dumay, Bill Furlong, Steve DiSalvo and their team.
The Bond Resolution was
approved by the Board of
Trustees
Present: Chair, Joanne Pietrini-Smith; Steven DiSalvo, President; Nancy Blattner; Ann Catino; Marie Chabot-Fletcher; Joel Cohen;
Charles Crowley; Rev. Jerome Day; Geraldine DeLuca; Rev. Bernard Disco; Christine Douville; Stephen Ellis; Msgr. William Fay; Daniel
Flatley; Rev. John Fortin; Kenneth Goodchild; Kevin Gould; James Hauser; Roger Jean; Elizabeth Kelly; John Lavelle; Rev. Mark Massa;
Richard Meelia; Bro. Isaac Murphy; Dorothy Musho; Joseph Pepe; Frank Pfeffer; Rev. Benet Phillips; Lisa Kennedy Sheldon; Bro. Andrew
Thornton; Recorder: Janet Poirier
Not Present: Denise Askin; Richard Bready; Robert Connor; Abbot Mark Cooper; Thomas Melucci, Sr.; Barry Smith; Michael Rockett;
Joseph Sweeney; John Vaccaro
Remainder Redacted
G:\D53500\53569\Resolution-Trustee $35.docx
SAINT ANSELM COLLEGE
BOARD OF TRUSTEE RESOLUTIONS
RESOLVED, that this Corporation hereby authorizes and approves the incurrence of indebtedness and the participation in all transactions on behalf of this Corporation relating to the issuance, sale, and delivery by the New Hampshire Health and Education Facilities Authority of its Revenue Bonds, Saint Anselm College Issue, Series 2016 Bonds in a principal amount not to exceed Thirty Five Million Dollars ($35,000,000), with not in excess of $19,000,000 being used for the purpose of financing capital improvements including the renovation and expansion of the student activity center and not in excess of $16,000,000 being used for the purpose of advance refunding of said Authority’s Revenue Bonds, Saint Anselm College Issue, Series 2013; Bond proceeds may also be used to pay the costs of issuing the Series 2016 Bonds; and further RESOLVED, that the President, the Senior Vice President for Finance/CFO, and the Associate Vice President of Treasury and Auxiliary Services are each, acting singly, hereby authorized on behalf of this Corporation, to execute and deliver on behalf of Saint Anselm College, a Loan Agreement, a Note in an amount not to exceed Thirty Five Million Dollars ($35,000,000) to the Bond Trustee, as assignee of the New Hampshire Health and Education Facilities Authority, a Tax Regulatory Agreement, a Continuing Disclosure Agreement, and a Contract of Purchase, including a Letter of Representation, said documents to contain such terms and provisions as the signing officer shall approve, the execution thereof to be conclusive evidence of such approval; and further RESOLVED, that the form, terms, and provisions of the Preliminary Official Statement and the Final Official Statement, distributed by Piper Jaffray & Co. as purchaser and underwriter, to prospective purchasers of the aforementioned obligations, is hereby consented to, authorized, and approved; and further RESOLVED, that the President, the Senior Vice President for Finance/CFO, and the Associate Vice President of Treasury and Auxiliary Services are each, acting singly, hereby authorized to execute and deliver on behalf of Saint Anselm College all certificates and other documents and instruments which may be required by any party in connection with the sale and delivery of the aforementioned obligations; and further RESOLVED, that the President, the Senior Vice President for Finance/CFO, and the Associate Vice President of Treasury and Auxiliary Services, Secretary, or any Assistant Secretary of Saint Anselm College, are hereby authorized to affix, and attest to, the seal of Saint Anselm College to a Loan Agreement, a Tax Regulatory Agreement, a Note, a Continuing Disclosure Agreement, a Contract of Purchase and a Letter of Representation and any other instrument required in connection with the sale and delivery of the aforementioned obligations.
Board of Trustees Meeting
Saint Anselm College
8:30 a.m. and 1:00 p.m.
7 June 2013
1
Agenda Item
Presenter
Key Points / Discussion
Action
Follow-up
Session I
I. Call to order
Welcome
Prayer & Mission
Reflection
Overview of Agenda
Charles Pollard
Abbot Mark
Cooper, O.S.B.
Charles Pollard
Chairman C. Pollard welcomed all Board members.
The chair gave special thanks to J. Flanagan, the College Advancement staff, and dining staff
of the dinner last night honoring Fr. Jonathan.
Abbot Mark gave a reflection on Catholic identity.
Explore what it means to
be a Catholic college, as an
on-going educational
effort.
Present: Denise T. Askin; Timothy R. Austin; Ann M. Catino; Marie Chabot-Fletcher; Robert Connor; Abbot Mark Cooper, O.S.B.; Fr. Jerome Day, O.S.B.; Fr. Jonathan
DeFelice, O.S.B.; Geraldine H. DeLuca; Christine D. Douville; Stephen J. Ellis; Msgr. William P. Fay; Daniel T. Flatley; Fr. John Fortin, O.S.B.; Kenneth Goodchild; Kevin J.
Gould; Fr. Peter Guerin, O.S.B.; James Hauser; Roger L. Jean; Richard Meelia; Br. Isaac Murphy, O.S.B.; Dorothy R. Musho; Joseph Pepe; Joanne Pietrini-Smith; Lawrence
Pascal; Charles W. Pollard; Charles F. Rolecek; Barry F.X. Smith; Joseph E. Sweeney Br. Andrew Thornton, O.S.B. Unable to attend; Richard Bready; Charles A. Crowley;
Edward Hjerpe; Elizabeth Kelly; Thomas Melucci; Frank Pfeffer; Thomas C. Prendergast; Fr. William Sullivan, O.S.B. Also present: President-elect Steven DiSalvo; Suzanne
Mellon, EVP; Vice Presidents: Harry Dumay; James Flanagan; Joseph Horton; Fr. Augustine Kelly, O.S.B.; Brad Poznanski; Patricia Shuster. Recorder: Janet Poirier
Guests: Kelly Higgins, Athletic Director; Professor Eric Berry, Director of the Core
Redacted
Board of Trustees Meeting
Saint Anselm College
8:30 a.m. and 1:00 p.m.
7 June 2013
2
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Board of Trustees Meeting
Saint Anselm College
8:30 a.m. and 1:00 p.m.
7 June 2013
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Board of Trustees Meeting
Saint Anselm College
8:30 a.m. and 1:00 p.m.
7 June 2013
4
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Board of Trustees Meeting
Saint Anselm College
8:30 a.m. and 1:00 p.m.
7 June 2013
5
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Bond Issue Resolutions Harry Dumay The bond resolution related to the new residence hall was circulated to Trustees for approval.
Key Resolutions include:
• Authorization by the corporation to allow issuance, sale and delivery by the NH
Health and Education Facilities Authority of its Revenue Bonds, Saint Anselm
College Issue, Series 2013 Bonds in the principal amount not to exceed $12M.
• Authorization by the corporation to allow the Vice President for Finance/CFO,
Executive Vice President and the Associate Vice President/Finance, each, to act on
behalf of the Corporation to execute and deliver on behalf of Saint Anselm College,
a Loan Agreement, a Note in an amount not to exceed $12M to the Bond Trustee, as
assignee of the NH Health and Education Facilities Authority, a Tax Regulatory
Agreement, a Continuing Disclosure Agreement, and a Contract of Purchase,
including a Letter of Representation, said documents to contain such terms and
provisions as the signing officer approves.
• Authorize, consent and approve that the form, terms, and provisions of the
Preliminary Official Statement and the Final Official Statement, distributed by Piper
Jaffray & Co., as purchaser and underwriter, to prospective purchasers of the
aforementioned obligations.
• Authorize that the Vice President for Finance/CFO, Executive Vice President, and
the Associate Vice President/Finance are each, acting singly, authorized to execute
and deliver on behalf of the College all certificates and other documents and
instruments which may be required by any party in connection with the sale and
delivery of the aforementioned obligations.
R. Jean moved to approve
the $12M Bond
(Indenture) Resolutions.
K. Gould seconded, and
the motion was approved.
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Board of Trustees Meeting
Saint Anselm College
8:30 a.m. and 1:00 p.m.
7 June 2013
6
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• Authorize the Vice President for Finance/CFO, Executive Vice President, the
Associate Vice President/Finance or any Assistant Secretary of Saint Anselm
College, are allowed to affix, and attest to, the seal of Saint Anselm College to a
Loan Agreement, a Tax Regulatory Agreement, a Note, a Continuing Disclosure
Agreement, a Contract of Purchase and a Letter of Representation and any other
instrument required in connection with the sale and deliver of aforementioned
obligations.
College’s strengths for the bond rating:
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Remainder Redacted