The following are excerpts from comments filed with the NH Supreme Court in advance of the June 1 deadline for public comment on the version of the NH Rules of Professional Conduct recommended by the NH Supreme Court Advisory Committee on Rules.

 

 

 

 

 

 

 

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Proposed Revision to Rule 1.18 – Duties to a prospective client
From John Lassey at jlassey@tds.net

 

“While I agree that it is necessary to craft a rule which provides protection to a prospective client in some instances, the way the proposed rule is crafted could, I believe, be problematic for most law firms.

Proposed Rule 1.18 (a), as currently written, unambiguously says that "[a] person who provides information to a lawyer regarding the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." The rule goes on to specify what protection should be afforded to information so provided. What this means for a law firm is that most conversations with, or telephone calls and/or correspondence (including e-mail) from, "somebody who wants to talk to a lawyer," whether solicited by the firm or not, will have to be memorialized and entered in some fashion into the firm’s conflict-checking system. Since such contacts could range from a formal letter of inquiry to a quick conversation in an elevator, one can see that consistent application of the rule, if interpreted literally, will be quite difficult.

NH Comment 2 declares that "a person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship . . .; or for the purpose of disqualifying an attorney from participation in a matter; or through contemporaneous contact with numerous attorneys; is not a ‘prospective client’ within the meaning of paragraph (a)."

If 1.18 (a) were to always be interpreted in light of NH Comment 2, dealing with some of the more problematic of such contacts would not be of great concern. The "Statement of Purpose," however, indicates that the comments are "intended to be interpretive, not mandatory." If the Courts follow their usual practice of refusing to look beyond the plain meaning of an unambiguous provision, law firms may well find themselves faced with an enormous, perhaps impossible, task.

The problem described above could be minimized, however, with some minor revision to 1.18 (a). I suggest that the paragraph be amended to read as follows:

1.18 (a). A person who, in good faith, provides information to a lawyer regarding the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client; provided that such person has a reasonable belief that the lawyer is willing to discuss the possibility of forming such a relationship.

 

Regretfully, I must object to the Bar Association Ethics Committee's proposal to revise Paragraph (c) of Rule 1.11A, which now has been passed along to the Court by the Advisory Committee on Rules.  The Rule regulates conduct of lawyer-officials, and is unique to New Hampshire.  Although the Ethics Committee's draft Comment to the Rule (as apparently approved by the Advisory Committee) professes the intent that the Rule "facilitate rather than limit the opportunities of attorneys to serve on state and local governmental bodies," I am concerned that the proposed revision would do just the opposite: By imposing a new, additional restriction in Paragraph (c), the change would actually chill lawyers' opportunities to participate in effective performance of public service.

By way of background, I was one of several lawyer-officials who participated in drafting the original rule 1.11A and sought its adoption by the Court, after NHBA's Ethics Committee had handed down what we thought was a very unfortunate opinion imposing "Firm disqualification" on colleagues of lawyer-officials.  We believed Firm disqualification would effectively prohibit members of multi-lawyer firms from participating in (say) City Councils or Planning Boards, because of the limitations that would be imposed on their firm colleagues in representing clients before such bodies, even if the lawyer-official personally recused himself or herself from the matter at hand.  Paragraph (c) was (and is) the heart of Rule 1.11A's address to the Firm disqualification issue.  By adopting it, the Court overruled the Ethics Committee's opinion, essentially by allowing the lawyer-official's personal recusal to suffice.  As the Court's comment to the present Rule 1.11A states:  "Service by members of the NH Bar to state and local government should be encouraged."  

                The proposed revised Paragraph (c) would read:
        "(c) Other lawyers in the firm with which the lawyer-official is associated may appear on behalf of clients before the governmental body of which the lawyer-official is a member, if the lawyer-official publicly disqualifies himself or herself and refrains from participation in the matter in accordance with paragraph (b)(1) of this Rule. Other lawyers in the firm with which the lawyer-official is associated may appear on behalf of clients before a related body, if either (i) the lawyer-official has refrained from and continues to refrain from participation in any action regarding the appointment of members of the related body, or (ii) all relevant parties give their informed consent. At all times, however, the lawyer-official shall conduct himself or herself with respect to the matter in question in accordance with paragraph (b) of this Rule." (Ethics Committee's proposed new language in bold).

I believe the second sentence of the proposed revision goes too far in requiring the lawyer official to refrain from participating in the process of appointing members of a ”related body," as a precondition to permitting a lawyer-official's firm colleagues to appear before that body.  In effect this would have meant that I, when I was mayor of Concord, would have had to disqualify myself from appointing members of any City board or agency which members of my firm might have business with on behalf of clients, or as a member of the City Council, to refrain from voting to confirm members of any such body.  This would impose too much of a limiting impact on a lawyer-official's performance of those duties of the office, which include may include important duties of appointment or confirmation. I question why there is any appearance of impropriety for members of a lawyer-official's firm to appear before a "related" board or agency, simply because the lawyer-official may have had some role in the appointment or confirmation of members of the related body.  As another example, what if a lawyer who is a member of a law firm were to be elected Governor--would he or she have to refrain from appointing judges, in order to permit firm members to appear before such judges?

Also, I think the provision for "informed consent" in the proposed new language raises more questions than it answers.  Just who are "all relevant parties" who must give consent?  Commonly, if there is opposition to an application pending before a planning board or zoning board, there may very frequently be many more than 2 parties involved and their identities may not be determinable in advance of the hearing because no prior entry of appearance is required.  The Ethics Committee itself seems to recognize such problems in its comment:  "…Lawyers should not overlook the complexities inherent in obtaining consents pursuant to Section (c) of this Rule."  In short, the "consent" provision is illusory; as a practical matter the proposed revision would disable the lawyer-official from participating in the process of appointing or confirming members of "related bodies," in order to avoid disqualifying colleagues in his or her firm from appearing before any such related body.

The reality is that once the appointment is made and confirmed for a stated term, the appointing or confirming lawyer-official has no legal authority to influence the actions of members of the related body.  It should be sufficient to prohibit the appointing lawyer-official from communicating with or otherwise attempting to influence members of the related body in matters in which the lawyer-official, or the lawyer-official's firm, has an interest. Under the present Rule 1.11A, Paragraphs (b) (1) and (5) of the rule effectively do that, and would continue to do so under the Ethics Committee's proposed revision.

Accordingly, I respectfully suggest that the Ethics Committee's proposed Paragraph (c) be revised to read as follows (deleted language [bracketed and lined through], new language in bold):

        "(c) Other lawyers in the firm with which the lawyer-official is associated may appear on behalf of clients before the governmental body of which the lawyer-official is a member, if the lawyer-official publicly disqualifies himself or herself and refrains from participation in the matter in accordance with paragraph (b) (1) of this Rule and otherwise conducts himself or herself with respect to the matter in question in accordance with paragraph (b) of this Rule.  Other lawyers in the firm with which the lawyer-official is associated may appear on behalf of clients before a related body, if [either (i) the lawyer-official has refrained from and continues to refrain from participation in any action regarding the appointment of members of the related body, or (ii) all relevant parties give their informed consent. At all times, however,] the lawyer-official [shall] conducts himself or herself with respect to the matter in question in accordance with paragraph (b) of this Rule."

Essentially this would clarify the present Rule 1.11A, but wouldn't expand the scope of prohibitions or impair the ability of a lawyer-official to perform the full scope of his or her official duties.  I believe it is more consistent with the Court's stated objective for the Rule, i.e., to encourage participation by lawyers in public life. 

This comment was previously submitted to the Ethics Committee and to the Advisory Committee.  The Ethics Committee took no action in response. I am informed that the Advisory Committee met with two members of the Ethics Committee, considered my comment but concluded informally that the disqualification scenario I have described was "unlikely to happen in actual practice." 

I know of no factual basis for such a conclusion.  I was privileged to serve as a member of Concord's City Council from 1970 to 1982 and as Mayor of Concord from 1976-1982. From my own personal experience, I can attest that multi-member law firms hesitate to permit members to run for municipal office if the firm's ability to represent clients before local regulatory bodies will be put at risk.  This was the problem with the "Firm Disqualification" rule that the original Rule 1.11A overrode.  The revision to paragraph (c) now proposed by the Advisory Committee would reintroduce that risk; to avoid it, a lawyer-official would be obliged either to recuse from exercising important functions of the office on a continuing basis or, in the alternative, obtain consents that the Committees themselves recognize would be problematic.  In actual practice, a multi-member firm would discourage its members from incurring such a risk at all by discouraging the member from running for the office.

Accordingly, if the Court wishes to continue to encourage lawyers to participate in public life, it should reject the change to Rule 1.11A (c) proposed by the Advisory Committee.   

- Martin Gross                                                 
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“As the Court reviews rules pertaining to multi-jurisdictional practice, I urge it to consider allowing lawyers admitted in other jurisdictions to sign documents and represent clients in the area of immigration law. Lawyers from other jurisdictions already represent NH clients in filing applications before the USCIS District Office in Manchester. Likewise, NH lawyers represent immigration clients in forums throughout the US.

 

Similar to copyright and patent law, immigration law is strictly federal law. There is nothing unique to NH law dealing with the practice of immigration law before the USCIS, US Department of Homeland Security, or the US Department of State.

 

My immigration practice is worldwide. I may file pleadings in any USCIS Service Center any place in the United States and US embassies abroad. I file immigration petitions, motions and appeals with regularity in MA, VT, MO, IL and other places as do other immigration lawyers nationwide. The USCIS G-28 appearance form is national, and may be signed by any attorney from any jurisdiction. It may also be signed by a non-lawyer representative. See immigration FORMS link at http://www.uscis.gov. Also I make appearance before the regional immigration court in MA as do lawyers from all over the US. Appearance in that Court is granted to all lawyers or non-lawyer representatives from all jurisdictions. The US government does not consider this the unauthorized practice of law.

 

It turns logic upside down for a representative in NH to be allowed to advise immigration clients, when lawyers admitted in other jurisdictions are barred in NH. Such practice could only encourage persons in need of immigration services to consult representatives instead of qualified lawyers.

 

Allowing non-lawyers to practice law restricted to federal immigration and to be affiliated with a NH lawyer would provide expanded legal services to a vulnerable immigrant population in need of legal services.”

-George Bruno

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“Differences from the ABA Model Rule.  As proposed in its Order, Rule 6.1 adopts substantively the latest ABA Model Rules version of Rule 6.1.  There is, however, a major distinction in that the proposed rule abandons the ABA’s clearly identifiable goal that each lawyer “aspire to render at least (50) hours” of pro bono service, and instead inserts “an appropriate number of hours, consistent with the lawyer’s circumstances….”  Pro Bono urges this Court to adopt the ABA Model Rule version.

 

Pro Bono’s Role in Implementation of Rule 6.1.  New Hampshire’s Pro Bono Program will be celebrating its thirtieth anniversary next year and has been long-recognized throughout the nation as a leader in its pro bono initiatives.  In fact, the New Hampshire Bar Association and its Pro Bono Program were this year’s recipients of a prominent award presented by the ABA’s Standing Committee for the Delivery of Legal Services, the Louis M. Brown Award for Legal Access, as a result of its combined efforts pertaining to the new “Unbundling Rules.”  The lifeblood for the success of Pro Bono has been the unselfish, continued dedication and commitment of New Hampshire Bar members.  And, this Court has in recent years committed itself in an on-going and exuberant encouragement for increased pro bono participation by all lawyers, no matter what their individual practice areas or experience. We believe that Rule 6.1, and how it is interpreted and embraced by the lawyers throughout this State, is critical to the continued success of Pro Bono and its role within the State’s legal services delivery system.

 

            Why Does Rule 6.1 Need Quantification?  In its Comment, the Ethics Committee defended its position in abandoning the “admirable goal” of 50 hours, by stating: “given the great diversity of circumstances among the practicing lawyers in this State, the ‘appropriate number-‘of hours that each lawyer should provide will vary depending upon each lawyer’s situation.”  But what is so unusual about New Hampshire that would justify setting it apart from all the other States, when it comes to providing an aspirational goal for pro bono involvement?  To the contrary, in fact, New Hampshire has and should continue to be a leader in the pro bono movement, and should assist its lawyers by providing some clarity as to what is expected—which is certainly accomplished in the ABA’s model rule. 

 

            Pro Bono believes that the ABA Model Rule properly focuses upon our profession’s unique responsibility to the citizens of this State, as is now clarified in the first sentence:  “Every lawyer has a professional responsibility to provide legal services to those unable to pay.”  A unique feature of this Rule, apart from the other RPC, is that it is not mandatory, but instead is aspirational only.  Accordingly, this Rule cannot form the basis of any disciplinary action (see, e.g., ABA Comment 12).  Nevertheless, Pro Bono believes that it is important to clearly state this goal and also to provide a specific number of hours that a lawyer should aspire to provide to assist those of limited means or the legal services or related organizations having a similar goal.  The ABA’s Model Rule sends the correct message, not only to New Hampshire’s lawyers (who for the most part already readily embrace this concept), but as importantly, to the citizens of New Hampshire.  Establishing a concrete number of volunteer hours further assists the lawyer in quantifying the lawyer’s expectations.  Consequently, if a lawyer, because of the lawyer’s employment, limited practice area and competence or other personal circumstances or beliefs, is unable to render direct services as provided in either Rule 6.1. (a) or (b), at least by stating a number of specific hours, the attorney may be able to gauge and make a comparative financial contribution to legal services organizations, as is also anticipated in the last sentence of Rule 6.1.  See also ABA Comment [9] which states, in part, as follows:

 

Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services. At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided.

 

            ABA’s Table of Comparison.  Attached to this letter is a Table entitled “State Pro Bono Services Rules” prepared by its Standing Committee on Pro Bono and Public Service.  This illustrates how other States have dealt with the issue of quantifying a pro bono expectation.

 

            Proposed Change.  Pro Bono respectfully suggests that this Court adopt Rule 6.1, as proposed, but with the following two changes:

 

1.      Replace the first full paragraph of Rule 6.1 with the following:

“Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services each year. In fulfilling this responsibility, the lawyer should:”

2.      Replace 6.1(a) with the following:

“(a) provide a substantial majority of the 50 hours of legal services without fee or expectation of fee to:”

            Thank you for your consideration of our input on this important matter.

 

- Virginia Martin, Director of Pro Bono; John C. Norton, Chair, Pro Bono Referral Program Governing Board.