Comments on Draft Solicited

THE NHBA ETHICS Committee has begun releasing the first drafts of a rule-by-rule update of the NH Rules of Professional Conduct (RPC). The committee is seeking comments from the Bar and the public before sending the proposal to the NH Supreme Court Advisory Committee on Rules later this year.

The RPC were last revised, in a wholesale manner, in 1986. This revision, which began in late 2001, was spurred by shortcomings identified over the years and considers recent changes to the ABA’s Model Rules of Professional Conduct. Ethics Committee co-chair Rolf Goodwin said the committee has devoted itself almost exclusively to the RPC update since then, and the process is nearing completion. The preliminary draft of most of the Rules 1.1 through 3.5 (with some important rules still to come, such as Rule 1.5 governing fees) have been completed by the committee and are being posted at the Bar’s web site. The committee plans a full-day meeting later this month to finish a number of other rules that are in the drafting stage. Goodwin said he anticipates that the committee will be able to finish its review and re-drafting by the beginning of the summer.

Posted on this Web site under NH Practice Guidelines heading will be strike-through versions of the rules, with links to corresponding rules in the ABA’s Model Rules and to the existing NH Rules. Bar members and the public are encouraged to comment on the proposed language and to send them to Goodwin at rolf.goodwin@mclane.com, who will present them to the committee for consideration as it finalizes the proposal. The Ethics Committee’s work would only be a proposal, since the court’s rules process would dictate that changes would have to be officially proposed and considered after public hearing by the Court’s Rules Advisory Committee. The Supreme Court itself would then promulgate any rule changes.

Goodwin said the Ethics Committee is examining every rule in the NH code, and proposing new rules when necessary. The committee is also seeking to strike a balance between consistency with the ABA’s Model Rules and the need for clarity and practicality in the New Hampshire setting. In considering its revisions, the committee works with two sets of rules that often diverge.

The NH Supreme Court did not adopt the language of the ABA Model Rules nor did it adopt the ABA’s explanatory comments. Also, the NH Rules include a Rule 1.11A - Conduct of Lawyer-Officials, which addresses the potential for conflicts inherent in lawyers holding public office, a common occurrence in New Hampshire, especially at the local government level.

As an example of its approach to updating the rules, the draft includes additional wording that expands the definition of a "prospective client" in Rule 1.18 to include those inquirers who unilaterally provide information to an attorney for possible representation. That is an expansion from the current language that extends the protections for a prospective client to those who have been in "discussion" or "consultation" with a lawyer. "This change recognizes that per sons frequently initiate contact with an attorney in writing, by e-mail, or in other unilateral forms, and in the process disclose confidential information that warrants protection," states the Committee in its "Comments" to the draft Rule 1.18. The committee does note that the protection will not apply to all persons who communicate information to an attorney — such as those who simultaneously contact a number of attorneys, or those persons who might be sending information to an attorney for the purpose of "disqualifying an attorney from participation in a matter."

The Committee is also considering other issues such as allowing attorneys to limit the s scope of representation, an attorney’s pro bono obligation, and whether to update the current language on referral fees in Rule 1.5.

Click on "NH Practice Guidelines" in the column of green buttons on the left side of the home page to review the revised Rules. Questions or comments on the Ethics Rules review procedure are welcome and may be e-mailed to rolf.goodwin@mclane.com, or to the Ethics Committee Chair, Linda Landis, at landilt@nu.com

2003-2004 Ethics Committee Members

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