IN RE: ROBERGE'S CASE. (1999)

MEMORANDUM OPINION

The Supreme Court Committee on Professional Conduct (committee) petitioned this court for a six-month suspension of the respondent, Carolyn Roberge.   This court referred the matter to a Judicial Referee (Temple, J.).  After a hearing, the referee recommended that the petition against the respondent be dismissed.   The committee objects to the referee's recommendation.   We agree with the referee and dismiss the petition.

 In professional conduct matters, although we defer to the referee's factual findings if supported by the record, see Wehringer's Case, 130 N.H. 707, 716, 547 A.2d 252, 257 (1988), we retain the ultimate authority to determine whether, on the facts found, a violation of the rules governing attorney conduct has occurred and, if so, the appropriate sanction.   See Wood's Case, 137 N.H. 698, 701, 634 A.2d 1340, 1342 (1993).

 The record in this case supports the findings of the referee that the respondent was acting in an individual capacity rather than in a lawyer-client relationship and that she did not engage in any intentional misrepresentation which would subject an attorney to discipline when acting in a personal capacity.   We uphold the referee's determination that no violation of New Hampshire Rule of Professional Conduct (Rule) 3.4 occurred in this case.

 The referee's finding, by clear and convincing evidence, that the respondent, under the unique circumstances of this case, did not violate Rule 8.4(c) by recording a telephone conversation is also supported in the record.   Therefore, we adopt the referee's findings and dismiss the petition.

Petition dismissed.

PER CURIAM.

THAYER, HORTON, and BRODERICK, JJ., did not sit;  BATCHELDER, J., retired, participated by special assignment under RSA 490:3;  all who participated concurred.