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Bar News - May 23, 2003 PCC's Fee Hike Sets Stage for New Process THE NH SUPREME Court has approved a budget of $809,224 for the Professional Conduct Committee in the fiscal year starting June 1, 2003, and increased the annual assessment on active members (excluding full-time judicial) from $150 to $195. According to PCC Administrator James L. DeHart, the new budget would allow for an increase in staffing for the PCC to implement a new attorney discipline process, if approved by the Supreme Court. The court’s Advisory Committee on Rules will be holding a public hearing on rules changes, including the attorney discipline system, at 1 p.m. on June 4, 2003. Anticipating approval of a new system that will utilize a staff disciplinary counsel to prosecute cases, and will require additional support staff, DeHart said the current funding level for the PCC needed to be increased. Barring unforeseen obstacles or objections to the proposal, and if approved by the Supreme Court, DeHart estimates that September 2003 would be the earliest the new process could be implemented, but he expects it should be under way no later than Jan. 1, 2004. In addition to an attorney serving as disciplinary counsel, the current staff of six (three attorneys, one certified public accountant for audits, and two secretaries) would be augmented by an office administrator and two additional secretaries. The following is a comparison of the current PCC process and how it would change under the new system: Current System Initial Complaints – PCC staff screen complaints to determine if a violation of the Rules of Professional Conduct is alleged. The full committee reviews those complaints that allege violations of the conduct rules, and dismisses those that lack plausible merit. Complaints that require further investigation are referred to individual committee members for investigation. Investigation –The results of committee members’ investigations are presented to the full committee, which either dismisses them or refers matters to a hearing panel, usually numbering four to six committee members, for a public hearing. Hearing – The investigating member of the committee chairs the hearing panel during the evidence-gathering portion, but is not present for deliberations and does not vote on the hearing panel’s findings. The hearings are informal (rules of evidence are not strictly adhered to), and tend to be more inquisitorial than adversarial in nature, since the complainants often are not lawyers and can be inconsistent in their presentations. PCC Deliberation – The full committee considers the hearing panel’s report. If no misconduct is found, the PCC can vote to issue a "warning" for problematic conduct. If there is a finding of misconduct, the PCC can issue a public reprimand, or recommend via petition to the Supreme Court one of three sanctions: public censure, suspension or disbarment. De Novo Hearing – A misconduct finding resulting in a petition for public censure, suspension or disbarment is automatically subject to a de novo hearing before a judicial master. The PCC, using outside counsel, prosecutes the matter and the respondent has the opportunity to present evidence in his or her case. The judicial referee makes an independent finding and recommended sanction, which is submitted to the Supreme Court along with the PCC’s recommendation. Supreme Court’s Role – The respondent or the PCC can challenge the findings of the master or judicial referee by brief and oral argument before the Supreme Court, which usually decides the case with a written opinion. Proposed Plan Initial Complaint – This function would change little, except that the staff would report not to the PCC, but to a newly formed screening committee. Screening – The screening committee, with an entirely separate membership from the PCC, would review recommendations made by staff attorneys, who would conduct the initial investigations. It is at this stage that diversions or alternative dispositions are most likely to be recommended by the screening committee for problematic conduct that is not likely to result in a misconduct finding. Where misconduct is considered plausible, complaints would be scheduled for further investigation and a formal hearing. The PCC would hear appeals of screening decisions. Investigation – The professional staff would conduct further investigation and prepare the case for presentation before a hearing panel. Hearing – The hearing panels would be drawn from a large pool of volunteers – lawyers and non-lawyers not serving on the screening committee or the PCC. The hearings would be more formal than the current PCC panel hearings, since a staff attorney would present the complaints. These hearings would likely be more elaborate and contested since, under the proposed plan, there would be "no second bite of the apple" for either side once the hearing panel makes its findings of fact. PCC Dispositions – The PCC, reduced from 18 to 12 members, would receive hearing reports and memoranda from the parties and hear oral arguments on cases before voting on whether there is "clear and convincing evidence" of violations of the Rules of Professional Conduct. If misconduct is found, the PCC could impose a reprimand, public censure or a suspension not to exceed six months. Supreme Court’s Role – Findings could be appealed to the Supreme Court only on errors of law or unsustainable exercise of discretion, and there would be no evidentiary hearings either for appeals or on petitions for longer suspensions or disbarments.
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