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Bar Journal - June 1, 2002

Updating New Hampshire's Ethics Rules

By:
Updating New Hampshires Ethics Rules
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The first comprehensive revision of the Model Rules of Professional Conduct by the American Bar Association in a generation - the ABA's Ethics 2000 effort - is prompting a fresh look at the ethics rules in New Hampshire. Evolving technology provides an opportunity to make the revision process more transparent and, at the same time, more responsive to the needs of lawyers and disciplinary bodies.

Adding to the incentive to undertake the present initiative is a set of perceived problems. The present Rules of Professional Conduct were adopted by the New Hampshire Supreme Court in 1986, following input generated during a comprehensive review of the original ABA Model Rules of Professional Conduct by a special committee of the New Hampshire Bar Association (often referred to as the Tober Committee, after its last chair, Attorney Stephen Tober). The Supreme Court adopted the New Hampshire Rules; as was done in some other states, the Court did not adopt the Preamble and Scope or any comments. Nonetheless, the ABA Preamble and Scope, ABA Comments, and the New Hampshire Comments prepared by the Tober Committee appeared in most published versions of the New Hampshire Rules.

Some of the New Hampshire Rules differ significantly from the ABA Model Rules, so that the ABA Model Rules were often off point. Because the New Hampshire Rules as adopted by the Supreme Court differed in some respects from the Tober Committee product, even the New Hampshire Comments were not necessarily applicable to the Rules they accompanied. To add to the confusion, the New Hampshire Comments were not updated as various Rules were revised over the years by the Supreme Court. Over time, then, the published comments became increasingly more of a challenge than an aid to lawyers seeking guidance. Some of the published annotations have become downright archaic. The absence of the New Hampshire Rules from the Internet and the long delay in the internet posting of the opinions and articles of the Ethics Committee of the New Hampshire Bar Association (the Ethics Committee) made New Hampshire materials all but unavailable to non-members of the New Hampshire Bar until the past year. (The Supreme Court posting of the New Hampshire Rules may now be found at webster.state.nh.us/courts/rules/pcon, and the Ethics Committee materials are now available on this web site under Ethics Opinions & Practical Ethics Articles in the NH Practice Guidelines section).

Debating Issues Old and New

Meanwhile, changes in the law and changes in society required a revisitation of the Rules. In some cases the debates are old: the limits of confidentiality, the propriety of referral fees, retention of records, the problem of the incompetent client, restrictions on domestic relations law. In these and many other areas, the present Rules command less than universal respect. In other cases, changes in the economics and structure of law practice require a fresh look: not just lawyer advertising and solicitation, but such vexing topics as multidisciplinary practice and multijurisdictional practice, among others.

Faced with this situation, and recognizing the daunting workload of the Supreme Court and its Advisory Committee on Rules, the Ethics Committee offered to help. At first, discussions focused on the comments and annotations, as it was assumed that the Rules revision could be dealt with relatively easily. It was agreed that the Ethics Committee would assume responsibility for maintenance of the New Hampshire Comments, which would be posted on the Internet. The Supreme Court offered to place the Rules online on its web site. The Ethics Committee will review the format of the annotations and will maintain them to the extent appropriate.

In early 2001, the ABA's Ethics 2000 Committee delivered its proposed revisions to the ABA Model Rules and ABA Comments. The ABA Ethics 2000 report and the full text of the various versions of the Model Rules may be found on the Ethics 2000 web site (www.abanet.org/cpr/e2k). The sheer volume of material on the Ethics 2000 web site and the two-year lag between the 2000 target suggested by the title and the actual date of the report indicate that the project has turned out to be bigger than anticipated. The Rules needed more changes than had been foreseen. More important, much of the debate on the changes turned out to be more fundamental than expected. In hindsight, it seems na´ve for anyone to have expected the project to involve some light tinkering with the Rules. What has evolved instead has been a debate about the very nature of the legal profession.

When the NHBA Ethics Committee began reviewing the ABA Ethics 2000 report, it soon found itself faced with a complex situation. Our original mandate was to update the New Hampshire Comments and annotations, and to keep them updated. Along the way, we were to review the ABA Ethics 2000 Model Rules proposals and propose updates to the New Hampshire Rules in light of the ABA's work. We hoped to finish our work in a year. This schedule proved to be a little optimistic. We also hope to post our work on the New Hampshire Bar Association web site for review and comment by anyone who is interested.

Meanwhile, the debate at the ABA became heated. The first cluster of rules was debated by the ABA House of Delegates in August, 2001. The second cluster was debated in February, 2002. Left unresolved were some of the largest issues - multidisciplinary practice and multijurisdictional practice among them. The ABA hopes to tackle these topics in August, 2002. As the profession sorts out the issues being debated by the ABA, time will be needed to determine the best course for changes to the conduct rules in New Hampshire. That process will take a little longer than expected, but that will be time well-spent if it results in a set of New Hampshire Rules that is clear, coherent, and in touch with reality.

It turned out that the existing New Hampshire Rules contained some local values which seem preferable to those adopted by the ABA. Some of the ABA Ethics 2000 revisions may, in turn, be preferable to existing New Hampshire Rules. The quality of drafting in the ABA Model Rules is variable; in places, clarity and coherence demand that we make improvements for the New Hampshire version. (For example, the ABA's Model Preamble and Scope are so wordy and sloppy as to be almost unreadable. Sample sentence: "The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role." Say what?) In short, there is much work to be done.

Some of the debate on the ABA Ethics 2000 report has generated considerable heat. As the Ethics Committee continues to review the New Hampshire Rules, your input into the discussion will be appreciated. Your thoughts on NH's Rules - what they are now, how they compare to what the ABA has proposed, what is best for New Hampshire - can provide valuable perspective for the Ethics Committee. In turn, these perspectives can help inform the Supreme Court Advisory Committee on Rules and the Supreme Court itself, as these bodies review the Ethics Committee's recommendations.

Your input will be most helpful when emailed to the author (rolf.goodwin@mclane.com) referring to specific language in specific rules. Whether specific or not, all input will be reviewed, and, as appropriate, passed along to the Ethics Committee.

Areas of Inquiry

At this early date, any commentary in this article about the substance of the Ethics Committee proposals is little more a summary of this writer's editorial viewpoint - which is subject to change as this writer is exposed to argument in the Ethics Committee's meetings. However, it seems appropriate to raise a few sample questions from the early stages of the Ethics Committee's deliberations, and to solicit your responses:

  • The ABA draft of Rule 1.1 reduces the lawyer's obligation of competence to a two-sentence Rule. The present New Hampshire Rule is quite a bit longer, attempting to provide more guidance. Which approach is better?
  • Neither the ABA draft Rule 1.2 nor the present New Hampshire Rule 1.2 address the issue of "unbundled legal services." This issue is of special relevance to solo or small practitioners who often, of necessity, pick up each other's clients for discrete bits of representation when scheduling issues arise. But the practice can go much farther - for example, a lawyer may be hired to write a client's brief while the client is otherwise represented pro se. The Bar is considering the concept of advocating unbundled legal services as a mechanism for helping those who cannot otherwise afford legal representation. The ethical ramifications, however, are complex, and only beginning to be addressed.
  • None of the incarnations of Rule 1.5 explicitly addresses the issue of whether one may charge two clients for the same time - for example, time spent in court waiting for two hearings, or time spent working on a brief on an airplane while en route to a meeting for a second client. Is "double-billing" ethical?
  • The ABA has struggled with the question of whether written communications about fees and scope of representation should be required at the initiation of the attorney-client relationship, or again as fees and circumstances change. Should this practice be required?
  • Also regarding Rule 1.5, one of the livelier discussions among New Hampshire practitioners concerns so-called "naked referrals" which occur when a lawyer becomes eligible for a referral simply by having referred a matter to another lawyer. In the real world, naked referrals are a common practice. The present New Hampshire Rule, which is unclear, arguably for bids naked referrals, and the ABA Ethics 2000 draft clearly forbids them. Should the New Hampshire Rule change? And should referral fees be permitted outside the realm of contingent fee cases?
  • Contingent fees are not, at present, permitted in domestic relations cases. There is no demand for opening up divorce decrees or support orders or stipulations to contingent fees - but is there any reason why enforcement of the same should require the plaintiff to pay an hourly fee?
  • The present New Hampshire Rule 1.6 says, in effect, that while a lawyer may break client confidences to prevent an act which may result in death, severe injury, or severe financial harm, the lawyer takes an enormous risk in doing so, and will never get in trouble for not doing so. The ABA Model Rule provides that the lawyer may break client confidences even if the act has already occurred, the risk of harm is far in the future, the conduct does not constitute a crime, or someone other than the client might cause the damage. A few jurisdictions have gone further and require disclosure to prevent harm. As client confidentiality is one of the bedrock principles of the legal system - these are explosive issues. What should be the rule in New Hampshire?

These are merely a few of the questions raised by the first few of the Rules. It is hoped that you will feel encouraged to take a look at the present New Hampshire Rules, and the ABA Ethics 2000 product, and that you will tell us what you think.

The Author

Attorney Rolf Goodwin, who practices with the law firm of McLane, Graf, Raulerson & Middleton, is a member and past chair of the NHBA Ethics Committee. He is overseeing the Ethics Committee's Rule Revision Project. Contact him at rolf.goodwin@mclane.com.

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