CHANGES TO THE process for disciplining attorneys will be occurring quickly as the staff and volunteer members of the current Professional Conduct Committee scurry to meet a Jan. 1, 2004 effective date for a new process.

The new system is designed to be more efficient and more predictable and will offer more options for remediation of minor misconduct. It calls for a professional prosecutor (called "disciplinary counsel") who will develop cases that go to formal hearings, and separates the screening and hearing functions from the main committee. The new PCC, composed of eight lawyers and four non-lawyer members, will decide cases without participating in earlier handling of the complaints. Instead, two other volunteer groups will be created. First, there will be a screening committee of nine members (at least four will be non-lawyers) that will decide whether complaints should be dismissed or referred for a formal hearing. The screening committee also can decide that some matters are to be handled in a non-disciplinary, remediative manner (known as diversion). Also to be formed is a hearing committee from which panels of three to five members will be drawn to conduct fact-finding hearings. The hearing panels' reports would then be presented to the newly configured PCC for disposition. (See flow chart on page 20 for more detail on the processing of complaints.)

Under the new rules, the PCC would have the authority to dismiss with or without a warning, or impose discipline such as a reprimand, public censure or suspension of six months or less. For more serious sanctions, such as longer suspensions or disbarments, the PCC would submit petitions to the Supreme Court, which would hear the cases based on the record rather than holding de novo evidentiary hearings.

The current system relies heavily on 16 volunteers (there are two vacancies) serving on the PCC to screen, investigate and adjudicate complaints alleging infractions of the NH Code of Professional Conduct. Under development for more than two years, the overhaul of the attorney discipline process got the final green light on Aug. 29 when the Supreme Court approved changes to Supreme Court Rules 37 and 37-a. Two years ago, the court approved adding a third attorney to the PCC staff to allow PCC Administrator James L. DeHart more time to work on the process overhaul, and in June 2003, the PCC assessment was increased to provide more funding for an anticipated expansion of the PCC staff to implement the new process.

The overworked members of the current PCC will have to work even harder in the next few months to clear cases that have had hearings before the current PCC, and before the Jan. 1, 2004 effective date of the new attorney discipline system.

DeHart, whose title under the new system will be general counsel, said one of the PCC's more immediate tasks would be hiring an attorney to serve as disciplinary counsel (see Classifieds) and an administrative coordinator to assist with the transition. Under the new system, the staff will increase from six to 10, including support staff. Recruitment of members for the new committees (and reshuffling current members of the PCC into some of those slots) will also be a major task for the attorney discipline staffers in the next few months. The Supreme Court will be making the appointments to the various committees.

DeHart believes the added resources and the restructured process will offer several benefits to the legal system and to the public:

• Complaints will receive more prompt attention and professional follow-up, leading to more prompt dispositions, thus reducing the uncertainty and stress of cases that drag on for years through the cumbersome current system.
• The elimination of the de novo evidentiary hearing for cases petitioned to the Supreme Court eliminates a duplication of effort, and the participation of disciplinary counsel in formal hearings will help streamline those proceedings.
• Fewer cases will go to the formal hearing stage, because the PCC staff (instead of a PCC volunteer) now conducting the pre-hearing investigations can, in DeHart's words, "dig deeper" earlier to make recommendations to the screening committee on whether a matter should be dismissed, referred for a hearing, or is appropriate for diversion.
• The Bar and the public will have greater involvement in the discipline system, which should bolster confidence in its integrity and effectiveness.

DeHart acknowledges that the new system is more expensive - the annual assessment was raised by the court in June from $150 to $195 - but he believes that Bar members in the long run will appreciate the value of the reforms. As for whether future increases will be needed, DeHart said he hopes the PCC assessment can be kept at the current level for the near future.

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