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Bar Journal - Spring 2006

New Hampshire’s Rules of Professional Conduct Undergo a Complete Overhaul

By:


Introduction:

New Hampshire’s Rule Revision Project

In September of 2001, at the request of the New Hampshire Supreme Court, the New Hampshire Bar Association’s Ethics Committee (“Ethics Committee”) began a comprehensive review of the State’s rules of professional conduct — the first such review since the rules were adopted in January of 1986.

 

At the outset, the focus of the Ethics Committee review was the work product of the American Bar Association’s Ethics 2000 Commission (the “Ethics 2000 Report”).  Generated through the efforts of a distinguished collection of jurists, law professors, private practitioners and professional responsibility lawyers, and one lay person,1 this report was approved by the ABA’s House of Delegates in August, 2001.2

 

One month later, the Ethics Committee began its work under the careful supervision of Rolf Goodwin, then Chair of the Ethics Committee and, during the entire project, “Rules Revision Initiative Coordinator.”  The Committee’s work was carried out through lengthy monthly meetings, occasional retreats, and specialized subcommittees.  Every Committee member took on one or more rules for analysis and presentation to the group.  Assistance was also sought from other members of the Bar when necessary to understand the practical impact of proposed changes.  The Committee’s methodical decision-making visited and revisited several of the rules; and in the process overtook more than one aspirational “final deadline” before the work was complete and a product ready for the Supreme Court’s review.

 

The Committee’s report was submitted to the Supreme Court on February 8, 2006.  It will now be reviewed in the Court’s Rules Committee and through public hearings.  Whether the Court adopts the Committee’s recommendations as presented, with refinements, or only with major revisions, this process ensures that New Hampshire attorneys will soon be governed by very different professional conduct rules.

 

The ABA’s Ethics 2000 Project

Several reasons were given in 1997 for undertaking the ABA’s Ethics 2000 project (the first review of the Model Rules since they were enacted in 1983).3

   These included:

      - growing disparity in state ethics rules4

      - lack of clarity in some existing rules

      - new issues raised by a growing influence of technology in the delivery of legal services

      - continuing need to expand access to legal services for low and moderate income persons

      - changing organization and structure of modern law practice

      - the need to enhance public trust and confidence in the legal profession; increased public scrutiny of lawyers

      - special concerns of lawyers in nontraditional practice settings.5

 

At the end of its work, the Ethics 2000 Commission had created new rules regarding an attorney’s duty to a “prospective client” (Rule 1.18), the lawyer’s role as third party neutral (Rule 2.4), and non-profit or court-sponsored programs for short-term limited legal services (Rule 6.5); and had addressed certain problem areas with strengthened provisions (client-lawyer sexual relations6 and the advanced payment of fees and expenses7 are two examples).  The Commission’s work also underscored a lawyer’s duty to communicate effectively with clients on conflict issues by creating a consistent requirement for “informed consent” and by adding a writing requirement in key rules; and clarified or revised an array of rules that had generated confusion in application. 

 

Most importantly, the Ethics 2000 Project reaffirmed the basic “core values” of the profession, and has sparked similar rule review/revision projects in virtually every state.  Greater uniformity in state rules will almost certainly be the result.8

 

While the issuance of the Ethics 2000 Report triggered the start of New Hampshire’s review, however, it did not mark the end of the Model Rule revision process within the ABA.  Significant changes in the ethical obligations of corporate counsel, for example, occurred not as part of Ethics 2000, but as a result of the demise of Enron in 2002 and the creation of a separate ABA “Task Force on Corporate Responsibility.”9  Among other undertakings, this Group revised Rule 1.1310 to expand the attorney’s duty to police and report misconduct within the company; and to extend this duty even to situations in which the lawyer withdraws, or is fired, due to such misconduct.  Similarly important changes have followed the work of the ABA’s separate Multijurisdictional Practice Commission (Rules 5.5 and 8.5).11 

 

Because the Ethics 2000 Report was followed by these further major initiatives, the task of New Hampshire Ethics Committee was always something of a moving target . . . and required analysis of a set of Model Rules that were in a regular state of flux.  The Ethics Committee also responded to local initiatives that were not part of any ABA Model Rule project - - including our Court’s decision to modify New Hampshire’s rules of professional conduct (and related trial court procedural rules) to embrace “unbundled legal services,” or “limited representation,” as a means of providing improved legal representation for low and moderate income litigants.12

 

Because the scope of its review encompassed all of these initiatives, the Ethics Committee has now made recommendations to the Supreme Court that include not only a large number of clarification/definitional changes, but also a significant number of more fundamental or far-reaching modifications.  This article focuses only on the more important recommended changes.13

 

Key Changes in Rules Relating to the Client-Lawyer Relationship Rule 1.5:  Fees, Billing and Retainer Agreements

New Hampshire’s current Rule 1.5 protects client interests by prohibiting “clearly excessive” fees; establishing the factors that should be considered in setting reasonable fees;  requiring the lawyer to communicate the basis or rate upon which the fees will be charged; and mandating written contingent fee agreements when they are used.  The Rule also limits the circumstances under which lawyers who are not in the same firm may split fees.

 

To bring New Hampshire in line with the ABA Model Rules and the vast majority of states, the Ethics Committee first recommended replacement of the existing prohibition of “clearly excessive” fees with a prohibition of “unreasonable” fees and expenses.

 

Two other issues arose under this Rule, however, on which the Committee could not reach consensus:  written retainer agreements and naked referral fees.  Accordingly, the Ethics Committee’s report asks the Supreme Court to determine whether the Rule should mandate written fee agreements, or simply state a preference for a writing14; and whether “naked” referral fees will be allowed in New Hampshire.15 There has been substantial controversy in New Hampshire as to the practice of paying a fee for little more than referring a client.16  Fortunately, these two issues were the only situations in which a clear consensus could not be reached within the Ethics Committee.

 

Rule 1.6:  Client Confidentiality

Rule 1.6 sets forth one of the basic fiduciary duties of a lawyer to a client:  protection of confidential client information.  However, the rule also strikes a balance between this client obligation and potentially conflicting public interests by identifying circumstances which give an attorney a discretionary right to disclose confidential information outside of the attorney-client relationship. 

 

The Ethics Committee report to the Supreme Court expands the grounds for permissive, or discretionary, disclosure by:

  permitting a lawyer to reveal information relating to the representation of a client to prevent reasonably certain death or substantial bodily harm without regard to whether they will result from a criminal act.17

  permitting disclosure to secure legal advice about the lawyer’s compliance with the rules.18

  permitting disclosure to comply with other law or a court order.19

 

Interestingly, however, the Ethics Committee’s report does not accept, or recommend adoption of, an additional, Enron-based ground for discretionary disclosure that had been adopted in the Model Rules on the recommendation of the ABA Task Force on Corporate Responsibility.  The exception, found in Model Rule 1.6(b)(3), allows disclosure:

to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.

“Informed Consent”

The Ethics Committee followed the recommendation of the Ethics 2000 Commission for the adoption of an “informed consent” standard for many key client decisions — and by requiring confirmation in writing in several of these situations.

 

“Informed Consent”20 is defined in the Ethics Committee report as:

the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

The requirement of “confirmation in writing” is also defined:

“Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent . . . . If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

The “informed consent” requirement is part of Rules 1.2, 1.6, 1.7, 1.8 (several subsections), 1.9, 1.11, 1.18 and 2.3 - - as forwarded to the Supreme Court for review.

 

Rules 1.7-1.10:  The Conflict of Interest Rules

Conflict of interest rules are a reflection of the lawyer’s second, core fiduciary duty:  client loyalty.  As currently structured, New Hampshire’s rules address conflicts between two current clients (Rule 1.7(a)); between a current client and the attorney’s personal interests or responsibilities to another client or third person (Rule 1.7(b)); between current clients and the attorney’s personal interests in so-called “prohibited transactions” (Rule 1.8); and between a current client and a former client (Rule 1.9).

 

The Ethics Committee report:

    adopts the ABA’s new terminology for Rule 1.7 conflicts (they would be “concurrent conflicts”);21

    would make adverse litigation between current clients a per se, unwaivable “concurrent conflict”;22

    would require that any waiver of a “concurrent conflict” be based on the “informed consent” of each client, and be confirmed in writing;23

    would change the title of Rule 1.8 from “Conflict of Interest:  Prohibited Transactions” to “Conflict of Interest:  Current Clients:  Specific Rules”;24

    would strengthen the rule governing business transactions with clients with increased disclosure requirements, writing requirements, and a duty to advise the client of the “desirability of seeking . . . independent legal counsel”;25

    would prohibit the settling of a potential malpractice claim with a current or former client without advising the client, in writing, of the desirability of seeking independent counsel;26

    would add a provision that prohibits the initiation of sexual relations with a current client (if sexual relations exist before the attorney-client relationship, the prohibition does not apply);27

     would add a provision that imputes to every lawyer in a firm prohibitions in Rule 1.8 that apply to any lawyer in the firm;28

     would require that former client conflict waivers be based on “informed consent” and “confirmed in writing.”29

 

Finally, the Ethics Committee report recommends an exception to the general rule for imputation of conflicts (Rule 1.10) for “personal interest” conflicts.  Under this recommendation, the conflict created for an attorney due to his or her strong personal support for the cause of the opposing party would not be imputed to other attorneys in the firm if there is no “significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”30

 

Rule 1.13:  Expanded Responsibilities and Liability for Attorneys Representing Organizations

Rule 1.13 emphasizes that an attorney representing an organization owes his or her professional loyalty to the entity, rather than the organization’s constituents (managers, employees, directors, etc.).  Accordingly, corporate lawyers have always been required to act in the best interests of the organization when confronted with misconduct by individual employees or managers that is likely to injure the organization.  However, substantial revisions have been made to the ABA model rule (and in New Hampshire’s recommended revised rule) due to heightened concerns about corporate misconduct that have emerged in the wake of recent corporate scandals.  These changes also clarify and underscore the attorney’s responsibility to act when confronted with misconduct of a corporate employee — and increase the lawyer’s exposure when he or she fails to act.

 

The Ethics Committee report, which recommends changes identical to those already made in the ABA Model Rules:

     would clarify that the single, all-encompassing duty of corporate counsel confronted with corporate misconduct31 is to “proceed as is reasonably necessary in the best interest of the organization.”32

     would require the organization’s lawyer to refer organizational misconduct “up the ladder,” including, if warranted by the circumstances, to the entity’s highest authority, unless the lawyer reasonably believes that it is not necessary in the best interest of the organization.33

     would reaffirm the attorney’s discretionary right to disclose confidential client information outside of the organization under carefully-circumscribed circumstances (including a “reasonable certainty” of “substantial injury to the organization”).34

     would exempt from this discretionary disclosure right attorneys retained to investigate or defend corporate misconduct.35

     would require lawyers who reasonably believe they have been discharged, or who withdraw from representation, due to their efforts to deal with corporate misconduct or to comply with their duty to the organization, to take steps to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.36

 

One practical result of these changes — and particularly the increased emphasis on “up-the-ladder reporting” to remedy misconduct — is to increase the attorney’s exposure to negligence or breach of fiduciary duty claims by the entity when misconduct is not disclosed to higher authorities and causes injury to the organization.  When the attorney continues to work with the company, he or she also runs the risk that regulators or prosecutors who learn of the attorney’s proximity to misconduct will consider the possibility of “aiding and abetting” claims.

 

Rule 1.18:  A New Rule Governing Relationships with Prospective Clients

Rule 1.18, which does not exist under the current New Hampshire Rules of Professional Conduct, would define a lawyer’s duties to prospective clients, thereby underscoring that certain professional duties can arise even when no lawyer-client relationship ensues.  Under the rule, values such as protection of confidential client information and loyalty to the client through avoidance of conflicts would now be applied as a matter of rule to interactions with prospective clients.

 

The Ethics Committee recommends adoption of new Model Rule 1.18 with minor revisions.  The new rule:

     would define a “prospective client” as one who “provides information to a lawyer regarding the possibility of forming a client-lawyer relationship with respect to a matter.”37

     would prohibit use or disclosure of information received from prospective clients and reviewed by the lawyer, except as permitted by Rule 1.9 with respect to former clients.38

     would prohibit subsequent representation adverse to a prospective client in the same or a substantially related matter by an attorney if that attorney “received and reviewed information from the prospective client that could be significantly harmful to that person.”39 

     would impute such disqualification to the lawyer’s firm unless:

     both the affected (current) client and the prospective client give “informed consent, confirmed in writing”;40 or

     the “disqualified” lawyer took reasonable measures to avoid acquiring more disqualifying information than reasonably necessary; the disqualified lawyer is screened from participation and fee sharing; and written notice is promptly given to the prospective client.41 

 

Rule 1.18, as recommended, represents the only situation in which New Hampshire’s rules would accept “screening” of a conflicted or disqualified lawyer as a means of avoiding imputed disqualification of an entire law firm.  Because a meaningful distinction exists between “prospective clients” and clients who enter into contractual, ongoing and sometimes permanent relationships with firms, the Ethics Committee considered screening appropriate in this situation.

 

Key Changes in Ruling Relating to the Litigator

The most significant recent change to the ethical rules governing litigators was the Court’s adoption of a package of rule changes to accommodate “unbundled” or limited, legal representation in litigation matters.42 

 

In addition to this new initiative, which was adopted by the Court in an effort to reduce economic barriers to capable representation for low and moderate income litigants, the Ethics Committee report recommends a number of important changes to existing litigation-related rules, including:

     elimination of the “materiality” element in the prohibition of false statements of law or fact to a court (Rule 3.3).

     a new provision requiring an attorney to correct subsequently-discovered false statements of material fact or law to a tribunal (Rule 3.3).

     a new provision requiring a lawyer representing client in an adjudicative proceeding, who knows that any person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceedings, to take reasonable remedial measures including, if necessary, disclosure to the tribunal (Rule 3.3).

     a new, limited right of rebuttal in the media for the litigator encountering publicity that threatens “substantial undue prejudicial effect” for the lawyer’s client (Rule 3.6).

     the elimination of existing Rule 3.6(b).43

 

Defining the Unauthorized Practice of Law in the Context of Cross-Border and Multijurisdictional Practice

Based on the work of the ABA’s Multijurisdictional Practice Commission and the resulting Model Rule changes, the Ethics Committee report has recommended a wholesale revision to Rule 5.5.  The recommended revisions expand upon a simple prohibition of the unauthorized practice of law (“UPL”)44 and establish a variety of exceptions to the UPL prohibition in situations that are increasingly commonplace with the rapid expansion of regional practices.

 

More specifically, the recommended revisions to Rule 5.5:

     add a new provision barring lawyers not admitted in New Hampshire from establishing an office in this jurisdiction for the practice of law, or holding out to the public that the lawyer is admitted to practice in this jurisdiction.45

     add new provisions allowing out-of-state lawyers to

     practice in association with a New Hampshire licensed attorney;46

     practice with court authorization;47

     practice in ADR proceedings reasonably related to that attorney’s practice in jurisdiction(s) where he or she is licensed;48 or

     practice in matters “reasonably related” to, or arising from, an attorney’s practice in jurisdiction(s) where he or she is licensed.49

     add a new provision allowing out-of-state, licensed attorneys to

     “provide services” in New Hampshire to the lawyer’s employer that do not require pro hac vice admission.50

 

When addressing UPL concerns, New Hampshire practitioners need to keep in mind that the recommended rule would apply only to outside lawyers conducting business in this state; and that New Hampshire attorneys practicing in other states must comply with the UPL rules of those foreign jurisdictions.  Until uniform rules are adopted on a national basis, this requires a state-by-state analysis.

 

An Ethical Context for Work in “Law-Related Businesses”

Proposed Rule 5.7 (“Responsibilities Regarding Law-Related Services”) would be another new rule for New Hampshire lawyers and reflects the growing acceptance of lawyers in ancillary or law-related businesses.  This rule is an outgrowth of the legal profession’s expansion into areas that are not the exclusive province of the bar (investment management, environmental consulting, human resources counseling, lobbying, mediation, etc.).  Among the array of revisions recommended by the Ethics Committee, this proposed new rule is the clearest “sign of the times,” if not the most significant adjustment of professional responsibilities.

 

The proposed rule clarifies that lawyers working in law-related fields will continue to be governed by the rules of professional responsibility (including most significantly rules relating to client confidentiality, conflicts of interest, marketing and advertising, and fee splitting with non-lawyers) unless protective measures are used that ensure that the “customers” of the law-related business know, and accept, that the protections and duties inherent in the lawyer-client relationship do not exist.

 

The new rule reads:

 

Proposed Rule 5.7: Responsibilities Regarding Law-Related Services

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or

(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

(b) The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

 

The proposed New Hampshire Comments to the new Rule note that even if all protective measures are in place so as to provide adequate separation from the law practice and disclosure to “customers,” certain “overarching” conduct rules will continue to apply:

 

      New Hampshire Comment

Rule 5.7 identifies the circumstances in which all of the Rules of Professional Conduct continue to apply to lawyers even when the lawyer is not providing legal services to the person, or customer, for whom the law-related services are performed.  Even when those circumstances do not exist, however, the lawyer will remain subject to those overarching rules that apply generally to lawyers regardless of the context.  This would include — by way of example only — Rule 8.4(c)’s prohibition of “conduct involving dishonesty, fraud, deceit or misrepresentation” (Astles’ Case, 134 N.H. 602 (1991)); and Rule 1.9’s prohibition on the use against a former client of confidential information gained in the representation of the client.  Wood’s Case, 137 N.H. 698 (1993).

      Many believe that with increasing competition among lawyers for a small pool of clients able to afford regular legal representation, economics will drive lawyers in greater numbers into “law-related” businesses.  Unless this process is managed carefully, this transition will create new areas of potential exposure to “customers” that may not fall within a law firm’s traditional insurance for errors and omissions.

 

Rule 7.3:  A Modest Relaxation of Client Solicitation Rules

Rule 7.3 regulates the circumstances under which in-person and written or electronic client solicitation is allowed.  As currently drafted, the rule prohibits in-person or telephonic solicitation of professional employment unless the party approached is a family member or former client.

 

The underlying rationale for this strict restriction on face-to-face or telephonic solicitation is the “potential for abuse inherent in direct in-person . . . contact between a lawyer and a prospective client known to need legal services.”51  As further explained in Comments to ABA Model Rule 7.3:

The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately.  The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.52

The Ethics Committee felt that “entities, or individuals in a commercial context,” will — at least when not known to be in need of representation on a specific matter — “hold a more favorable balance of sophistication and leverage relative to the lawyer,” and not require the protections of Rule 7.3’s broad prohibition of face-to-face solicitation.53  Accordingly, the recommended rule would carve out exceptions to that prohibition for:

(1)  . . . a lawyer;54 

(2) . . . a (party with a) family, close personal, or prior professional relationship with the lawyer;55

(3) . . . an employee, agent, or representative of a business, non-profit or governmental  organization not known to be in need of legal services in a particular matter, and the lawyer seeks to provide services on behalf of the organization.56 and

(4)  . . . an individual who regularly requires legal services in a commercial context and is not known to be in need of legal services in a particular matter.57


CONCLUSION

The changes to the Professional Rules of Conduct as recommended by the Ethics Committee reflect a balance between professionalism and ethics and the changing nature of the profession.  The changes briefly summarized above are only a fraction of those contained in the entire Ethics Committee report.  New Hampshire practitioners are urged to review the proposed amendments and participate in the Supreme Court’s public hearings, and to remain educated on any changes the Court adopts. 

 

Endnotes

1.   The Ethics 2000 Commission had thirteen members and was appointed in mid-1997.  The membership included:

“. . . a state supreme court chief justice, a federal circuit court judge, a state court trial judge, a retired judge who is also a former dean and law professor, two professors of legal ethics, one of whom was the principal drafter of the Model Rules, a lawyer formerly with the Department of Justice, several private practitioners, a former in-house counsel, and a nonlawyer member, who is a former college president and member of numerous corporate boards.”  See Overview of Ethics 2000 Commission and Report,” Charlotte (Becky) Stretch, Center for Professional Responsibility website (www.abanet.org/cpr/ethics2k.html) (hereinafter “Overview”) at 1.

2.   Ibid. at 2.

3.   Ibid. at 1.

4.   Forty-four states use the Model Rules format.  Id.  However, even among these states, there are wide variations in the Rules.  See Stephen Gillers, Regulation of Lawyers 6 (7th Ed. Aspen 2005.

5.   Overview at 1.

6.   A new Model Rule 1.8(j) bars client-lawyer sexual relations unless such relationship existed when the client-lawyer relationship commenced.  Based on our current conflict of interest rules, the New Hampshire Supreme Court suspended an attorney for having sexual relations with a divorce client.  However, it did not establish a per se rule.  See Drucker’s Case, 133 N.H. 326, 577 A.2d 1198 (1990).

7.   Model Rule 1.15 now has a requirement that lawyers place advanced fees and expenses in client trust accounts, and only withdraw such funds when “fees are earned or expenses incurred.”  Model Rules 1.15(d).  A number of criminal defense attorneys have expressed concern to the Committee that this will require them to alter current practice and could eliminate flat fees.

8.   Measured against the goals identified in 1997 at the outset of the project, the Ethics 2000 Report does not contain significant changes relating to the “influence of technology“ or the “access to legal services” problem.  It also deferred to a separate commission on the significant new questions arising from multijurisdictional or cross-border practice.

9.   The Task Force on Corporate Responsibility was formed on March 28, 2002 by ABA President Robert Hirshon with the following charge: 

The Task Force on Corporate Responsibility shall examine systemic issues relating to corporate responsibility arising out of the unexpected and traumatic bankruptcy of Enron and other Enron-like situations which have shaken confidence in the effectiveness of the governance and disclosure systems applicable to public companies in the United States.  The Task Force will examine the framework of laws and regulations and ethical principles governing the roles of lawyers, executive officers, directors, and other key participants.  The issues will be studied in the context of the system of checks and balances designed to enhance the public trust in corporate integrity and responsibility.  The Task Force will allow the ABA to contribute its perspectives to the dialogue now occurring among regulators, legislators, major financial markets and other organizations focusing on legislative and regulatory reform to improve corporate responsibility.

10. Rule 1.13 sets forth the attorney’s duties in representing “organizations.”  The key concept in the rule in that “even though the only way to communicate with the organization is through the people who are constituent parts, the lawyer owes his or her obligations to the organization itself, not only particular individuals.”  Annotated Model Rules of Professional Conduct, 5th Ed., p. 218 (ABA 2003).  See also, Cole v. Ruidoso Mun. Sch., 43 F. 3d 1373 (10th Cir. 1994). 

11. The Multijurisdictional Practice Commission completed its work in August of 2002.  The Commission’s work included questions raised in multijurisdictional practices relating to the unauthorized practice of law; disciplinary authority jurisdiction; reciprocal jurisdiction; pro hac vice admission; and admission on motion.    New Hampshire’s adoption of this package of rule changes goes far beyond the relatively insignificant changes made by the ABA to address a well-recognized and expanding “access to justice” problem. 

12. Unbundled legal services refers to the provision of limited, or “discrete task,” representation.  Revisions to the rules confirm that an attorney and client can agree — in the context of litigation — that the scope of legal services will be limited to certain defined tasks, which may include advice and consultation, pleading preparation, participation in mediation, or limited appearances in court proceedings.  In other words, the lawyer provides some, but not all, of the services typically involved in the litigation matter.  Unbundled, limited-scope legal assistance is a growing trend to meet the needs of the ever-increasing number of pro se litigants.  In addition, allowing a client to retain counsel for discrete tasks provides increased access to the courts to those who are unable to afford full-scope representation.  The New Hampshire Supreme Court adopted rule revisions on unbundled legal services by inserting language in several New Hampshire Rules, and thereby clarifying an attorney’s ability ethically to provide unbundled legal services.  See New Hampshire Supreme Court Order (March 21, 2006) (amending, inter alia, Rules 1.2, 1.16, and 4.2).  Related procedural rules for the district, probate and superior courts have been drafted to implement the process.  See id.  The amendments take effect July 1, 2006.  Id. 

13. The entire package of recommended changes can be found on the New Hampshire Bar’s website at http://www.nhbar.org/uploads/pdf/EthicsCommittee
SubmissionToAdvisory CommitteeonRules.pdf.

14. See alternatives for Rule 1.5(b) as recommended by Ethics Committee.

15. See alternatives for Rule 1.5(f) as recommended by Ethics Committee.

16. In 1996, the Ethics Committee issued a controversial opinion that bars naked referral fees and requires involvement of the referring attorney.  New Hampshire Ethics Op. 1995/96-12 (May 16, 1996).

17. Under the current rule, a criminal act is required before disclosure is authorized.  See Rule 1.6(b)(1) as recommended by Ethics Committee.

18. See Rule 1.6(b)(2) as recommended by Ethics Committee.

19. See Rule 1.6(b)(4) as recommended by Ethics Committee.

20. In the Model Rules, “informed consent” typically replaced language requiring only “consent after consultation.”  In New Hampshire, our current rules frequently require “consent after consultation and with knowledge of the consequences.”  (See current Rules 1.7(a)(2), 1.7(b)(2), 1.8(b), 1.9(a), 1.9(b)(2)).  The new phrase “informed consent” will bring added clarity due to its more precise definition.  Consistency with other Model Rules jurisdictions is another important objective.  It is not clear, however, that the new standard strengthens the existing standard.

21. See Rule 1.7(a) as recommended by Ethics Committee.

22. See Rule 1.7(b)(3) as recommended by Ethics Committee.

23. See Rule 1.7(b)(4) as recommended by Ethics Committee.

24. See Rule 1.8 as recommended by Ethics Committee.

25. See Rule 1.9(a) as recommended by Ethics Committee.

26. See Rule 1.8(h) as recommended by Ethics Committee.

27. See Rule 1. 8(j) as recommended by Ethics Committee.

28. The sole exception to this imputation rule is the new prohibition on initiating sexual relations with a client.  See Rule 1.8(k) as recommended by Ethics Committee.

29. See Rule 1.9(a), (b) as recommended by Ethics Committee.

30. Rule 1.10(a) as recommended by Ethics Committee.

31. While we use the terms “corporate counsel” and “corporate misconduct, “ Rule 1.13 applies broadly to a wide range of organizations, including partnerships, LLCs, unincorporated associations, government agencies or units, joint ventures, etc.

32. See Rule 1.13(b) as recommended by Ethics Committee.

33. See id.

34. See Rule 1.13(c) as recommended by Ethics Committee.

35. See Rule 1.13(d) as recommended by Ethics Committee.

36. See Rule 1.13(e) as recommended by Ethics Committee.

37. See Rule 1.18(a) as recommended by Ethics Committee.

38. See Rule 1.18(b) as recommended by Ethics Committee.

39. See Rule 1.18(c) as recommended by Ethics Committee.

40. See Rule 1.18(d)(1) as recommended by Ethics Committee.

41. See Rule 1.18(d)(2) as recommended by Ethics Committee.

42. See n. 12 supra.

43. Rule 3.6(b) lists a variety of public statements considered “substantially likely” to have a “material prejudicial” effect on litigation.

44. Rule 5.5 currently reads: 

      Rule 5.5 – Unauthorized Practice of Law

      A lawyer shall not:

(a) practice law in a United States jurisdiction where doing so violates the regulation of the legal profession in that United States jurisdiction; or

(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

45. See Rule 5.5(b), (c) as recommended by Ethics Committee.

46. See Rule 5.5 (c)(1) as recommended by Ethics Committee.

47. See Rule 5.5 (c)(2) as recommended by Ethics Committee.

48. See Rule 5.5 (c)(3) as recommended by Ethics Committee.

49. See Rule 5.5 (c)(4) as recommended by Ethics Committee.

50. See Rule 5.5 (d)(1) as recommended by Ethics Committee.

51. Comment [i] to ABA Model Rule 7.3.

52. Id.

53. Comment 4 to Rule 7.3 as recommended by Ethics Committee.

54. See Rule 7.3(a)(1) as recommended by Ethics Committee.

55. See Rule 7.3(a)(2) as recommended by Ethics Committee.

56. See Rule 7.3(a)(3) as recommended by Ethics Committee. 

57. See Rule 7.3(a)(4) as recommended by Ethics Committee.

 

Peter BeesonAuthor

Attorney Peter G. Beeson, chair of the Attorney Conduct & Liability Practice Group, and a shareholder of the Devine, Millimet & Branch law firm in Manchester, and he also is a member of the Ethics Committee and the New Hampshire Bar Association Continuing Legal Education Committee.

Mitchell Simon

Author

Attorney Mitchell M. Simon is professor of law at Franklin Pierce Law Center and a member of the Attorney Conduct & Liability Practice Group of the Devine, Millimet & Branch law firm in Manchester. He has been a member of the New Hampshire Bar Association Ethics Committee for 19 years.

Betsy BakerAuthor

Attorney Elizabeth J. Baker, an associate of the Devine, Millimet & Branch law firm, is a member of the Attorney Conduct & Litigation Practice Group. Prior to joining Devine Millimet, Betsy served as a Judicial Law Clerk for the Honorable John T. Broderick, Jr., Chief Justice of the New Hampshire Supreme Court.


 

 

 

 

 

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