Bar Journal - Summer 2004
By: Attorneys James Kerouac & John-Mark Turner
This edition of the Bar Journal provides a potpourri of articles, ranging in subject matter from ethics to election law. The centerpiece is the Bar Association Ethics Committee’s proposed revisions to the New Hampshire Rules of Professional Conduct. Following the lead of the American Bar Association, which began a comprehensive review of its Model Rules of Professional Conduct several years ago, the New Hampshire Supreme Court’s Advisory Committee on Rules has asked the Bar Association to recommend changes to the New Hampshire Rules of Professional Conduct. The Bar’s Ethics Committee is in the process of assessing each rule and recommending revisions. The Bar Journal is publishing a draft of the Committee’s proposed rules to date. (Some rule drafts had not been finalized at deadline for this issue. Visit NH Practice Guidelines for the latest version. The web site version has a page for each rule with individual links to the corresponding sections in the ABA’s revised Model Rules and the current Rules of Professional Conduct for ease of comparison.) The sincere hope of the editors of the Journal is that members of the Bar will begin a dialogue on these proposed changes so that the Committee’s recommendations to the Supreme Court’s Advisory Committee will truly reflect the sentiments of the entire Bar.
The Committee’s recommended changes concern, among other things, fees and fee agreements, client trust accounts, multijurisdictional practice, requirements of up-the-chain reporting of legal violations in the context of organizational clients, and pro bono service. Not reached at press time were the rules regarding lawyer advertising, so be sure to check out the web version as well. On the issue of referral fees, the committee was firmly split and two versions are presented. Readers are encouraged to read the roundtable discussion by Committee members for a flavor of the discussions regarding particular proposed revisions.
Here’s a rundown of the other articles in this issue:
The Impact of Sarbanes-Oxley on New Hampshire Nonprofits. This issue of the Journal goes beyond a discussion of the ethical constraints governing lawyers. Attorney Michael DeLucia’s article on the impact of the Sarbanes-Oxley Act on New Hampshire nonprofits touches upon the ethical, and now legal, obligations of corporate actors. After reviewing the corporate excesses that led to the creation of Sarbanes-Oxley, DeLucia, a Senior Assistant Attorney General and Director of the Charitable Trusts unit at the Department of Justice, contrasts similar governance problems that have plagued nonprofits with positive examples of entities that have succeeded in improving transparency and accountability. DeLucia goes on to point out that the need for such "best practices" in the nonprofit sector is particularly acute because for-profit regulatory tools are not available and no shareholders exist to act as watchdogs. Concluding that existing New Hampshire statutes establish only a bare minimum of acceptable conduct by officers and directors of nonprofit entities, rather than articulating the best governance practices, DeLucia ends his piece with recommendations on how a nonprofit can improve its governance structure above and beyond that required by law.
Division of the Pre-Marital Trust or Inheritance. Attorneys Charles G. Douglas, III, and Carolyn Garvey focus outside New Hampshire’s borders with their article regarding division of sizeable pre-marital assets in divorce proceedings. Reviewing the laws of 12 other "all-property" states that, like New Hampshire, consider all property belonging to either spouse as part of the divisible marital estate, Douglas and Garvey discern two distinct approaches taken by courts when deciding whether to divide significant assets that only one party brought into the marriage.
The New Judicial Federalism. Attorney Douglas, a former New Hampshire Supreme Court justice, makes another appearance in this issue, cited in Professor Robert Williams’ article at the beginning of the Journal. Professor Williams examines the evolution of the "New Judicial Federalism" (i.e., state courts invoking state constitutions to provide more protection of individual rights than that offered by the federal constitution). This topic has become increasingly important following several high-profile state constitutional decisions by state supreme courts, of which the gay marriage decisions of the Massachusetts Supreme Judicial Court are perhaps the most notable examples. Professor Williams’ article credits the New Hampshire Supreme Court and, in particular, a 1978 article by then-Justice Douglas, with playing a key role in the development of this New Judicial Federalism. In addition, the article discusses the role of the New Hampshire Supreme Court’s recent garbage search decision, State v. Goss, in the evolution of the New Judicial Federalism.
Survey of New Hampshire Election 2004 Issues. Providing insight on another topical issue, Attorney James Merrill’s article on 2004 election law issues is a thorough and timely discussion of New Hampshire and federal election law. Merrill’s article addresses election law issues ranging from exploratory committees and fundraising to the effect of New Hampshire’s telemarketing statutes on political campaigns. The article also provides a detailed discussion of the federal Bipartisan Campaign Finance Reform Act of 2002 championed by Senator John McCain, which has changed the fundraising landscape for both federal and state campaigns.
This Bar Journal issue, concludes as always, with another crisply written, entertaining and sometimes quirky Lex Loci review of recent decisions by the New Hampshire Supreme Court, penned by Charles A. DeGrandpre, who has been at it for a remarkable 36 years. Be sure to read the decision (not by our court but brought to Charlie’s attention by a loyal reader) rendered in verse that closes this edition of Lex Loci.
James Kerouac is an associate with Gallagher, Callahan & Gartrell, Concord.
John-Mark Turner is an associate with Sheehan, Phinney, Bass + Green, P.A., Manchester.