THE FOLLOWING IS the text of a letter from NH Supreme Court Clerk Eileen Fox:

The Supreme Court Committee on Professional Conduct has submitted a proposal to restructure the current system of lawyer discipline. The committee has proposed that a new "Attorney Regulation System" be established in which the investigative, prosecutorial, and adjudicative functions of the disciplinary process are divided and performed by different persons or entities.

The committee's proposal includes a number of other significant changes to the current process. It is the committee's belief that the proposal would reduce the workload on individual volunteers, allowing more lawyers and citizens to be involved in the process, and would increase the efficiency and fairness of the disciplinary process. The proposed structure is described in detail in a memo prepared by the committee entitled "Proposal for Structural Changes to the New Hampshire Lawyer Disciplinary System." (See excerpts below.)

The committee has also drafted recommendations for amendments to Supreme Court Rules 37 and 37A to implement the proposal.

The Supreme Court is interested in your comments on the committee's proposal. Please send your comments to me at the New Hampshire Supreme Court, 1 Noble Drive, Concord, New Hampshire 03301, or e-mail them to supreme@courts.state.nh.us. Comments should be submitted by January 31, 2003.

Opening Statement

For some time, the Professional Conduct Committee has recognized the need to change the lawyer discipline system in New Hampshire. Even though the number of docketed complaints is down, the complexity and the volume of materials being submitted in those matters that are being docketed have exceeded the Committee's ability to process matters efficiently.

The problems are systemic, not transactional. It is apparent that the old ways will no longer do. They will not serve the profession nor find acceptance from the public. We cannot let the memories of a more pleasant past obscure either our future obligations or the declining capacity of the existing structure to meet them. At any given meeting, the Committee has had a 20 page agenda. As of January 1, 2002, there were 94 complaints that had been or were about to be assigned to volunteer members for review. More than 100 other matters were at various stages of processing. On August 16, 2002, the Supreme Court appointed 15 former members to the Committee for a term of six months to assist the current Committee in reducing some of the backlog of its oldest cases. By December of 2002, the agenda has been slightly reduced to 19 pages. There were 89 complaints that had been or were about to be assigned to Committee members for review and 96 other matters were at various stages of processing.

The Committee began its review of the system by appointing a long-range structure subcommittee in August 2000. The staff obtained materials from a large number of sister disciplinary systems. Over the months, the subcommittee discussed and debated the components of a system to address the weaknesses of the current system while continuing (and increasing) the involvement of volunteers at different levels of the process.

After a presentation by the subcommittee, the Professional Conduct Committee unanimously voted at its August 21, 2001 meeting to recommend to the Court that substantial changes to the system be made.

Since that time, the basic proposal has been submitted to the Justices of the New Hampshire Supreme Court, the Board of Governors of the New Hampshire Bar Association and, through the New Hampshire Bar News and the 2002 Mid-Winter meeting, the Membership of the Bar Association.

Major Proposed Changes

The Committee believes that major changes are needed to accomplish the following:

1. Increase the current staff. In addition to the third staff lawyer, an office administrator/human resources per son is needed as well as another secretary.
2. Create a new separate position of disciplinary counsel with his or her own secretary.
   *These two items require additional office space that has already been rented.
3. Increase and diversify the duties of non-compensated personnel to decrease the workload of individual volunteers. This would be done by (a) having staff complete all investigations now done by PCC members; (b) creating a new entity to be known as the Complaint Screening Committee, with the power to dismiss complaints or send them on to hearing; (c) creating of a large pool of persons who would be make themselves available to occasionally sit on hearings, which would be prosecuted by disciplinary counsel; (d) reducing the size of the PCC whose duties would be focused on reviewing hearing panel reports, holding oral arguments, dismissing complaints or imposing or recommending sanctions; and handling administrative matters.
4. Add forms of diversion.
5. Add procedural guarantees to panel hearings and PCC actions and eliminate provision for de novo hearings before a Judicial Referee.

The aim of these changes is to speed up the process by redistributing the workload and eliminating a second hearing when the PCC petitions for disbarment, suspension or public censure. At the same time, the new system would help delineate the boundaries between the investigatory, prosecutorial and adjudicative functions of the dis ciplinary system.

The changes are made in recognition of the fact that when plausible charges are made, the public will not be content with secret proceedings from which one member of the profession emerges bearing bland assurances of the propriety of another. Private discipline is now impossible. Proceedings now have to be public and seen to be dispassionate.

Components of the System

The new system is called the Attorney Regulation System and it consists of the following components: Professional Conduct Committee, Hearings Committee, Complaint Screening Committee and the Attorney Regulation Office (disciplinary counsel, general counsel including a deputy and an assistant general counsel, auditor, administrator/human resources and four secretaries).

The Committee believes that due process rights of respondents are adequately protected even without the right to a de novo evidentiary hearing. While the Committee has not conducted an exhaustive search of case law concerning due process issues involved in lawyer disciplinary proceedings, the limited review that it has conducted has disclosed no cases where courts have held that a right to a de novo evidentiary hearing is among the due process rights that need to be guaranteed to a respondent in lawyer disciplinary proceedings. A detailed discussion of due process rights afforded in lawyer disciplinary proceedings is set forth in ABA/BNA Lawyer's Manual on Professional Responsibility 101:2101-2117 "Misconduct and Discipline - Disciplinary Process - Procedure" 1994. (The full text of the report quotes extensively from this ABA document.)

Budgetary Considerations

The Professional Conduct Committee budget for the fiscal year June 1, 2002 through May 31, 2003 is $605,105.09. The current assessment is $150.00 for active members of the Bar (except full time judicial members) and $10.00 for inactive status members (except inactive retired, inactive military and inactive honorary).

While it is still a little early to calculate some of the expenses for the 2003-2004 fiscal year, the overall budget is likely to be in the general neighborhood of $850,000.00. This is a projection only and the actual figure could be a bit higher or lower.

As an offset, the Character and Fitness Committee pays $32,500.00 as its pro-rata share of certain line items.

The amount of future disciplinary expenses is affected by the number of members of the Bar in any given fiscal year and whether or not the lawyer discipline system has a large enough reserve that can be used to offset a portion of the assessment. A reserve, when one exist, is generally the result of unexpended funds from a previous year coupled with the collection of costs assessed by the Supreme Court against disciplined attorneys.

Prior to the current fiscal year, the Supreme Court kept the assessments down by directing the Committee to draw from the reserve. As a result, the amount in the reserve has been substantially depleted.

Closing Statement

The purpose of this proposal is to address weaknesses in the present system. The goal is to achieve efficiency and fairness to the benefit of both respondents and complainants.

From the attorney's perspective, these procedures, while expensive, embrace institutionally the guarantees of fair inquiry - experienced disciplinary counsel, a record, the right to review and tribunals which are neither predisposed to swift exoneration nor to popular persecution. They provide the option for diversion in appropriate cases. Less reliance on volunteers will increase efficiency. Increased costs for each member of the Bar are undeniable. However, the fact that the current disciplinary system in New Hampshire is crashing under its own weight is also undeniable.

The Professional Conduct Committee is, and will continue to be, mindful of the need to be financially responsible in bringing about necessary changes.

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