Public Hearing Set for June 2

THE SUPREME Court's Advisory Committee on Rules will consider amendments to the Rules of Professional Conduct and other court rules to permit in-house counsel not admitted in New Hampshire to receive a limited license to practice. The amendments, part of an imposing stack of proposed rules to be considered at the Rules Committee's June 2 public hearing, also set out a more elaborate procedure for pro hac vice admission in the various state courts.

The Rules Committee notice contains 41 appendices of rules changes affecting every level of the court. (See on sidebar on page 24 for other proposals of interest, and the text of the order setting forth the subject matter of each appendix.)

The limited admission license, in many respects, is modeled on recently revised language in Rule 5.5 of the ABA's Model Rules of Professional Conduct, although it goes further by proposing a detailed "limited admission" procedure and requirements. The Rules Committee also has forwarded its proposal to the NHBA Ethics Committee that is in last stages of a systematic review and updating of the entire NH RPC (see information in box on page 24).

The Rules Committee's language for 5.5 proposes that attorneys seeking the limited license:

• perform legal services only to a (non-law firm) employer or its organizational affiliates;
• not solicit clients in New Hampshire;
• be subject to the NH Rules of Professional Conduct, and pay all fees and Bar dues, including the court-imposed Public Protection Fund assessment.

The Rules Committee's proposals in this area come in the wake of the judicial branch becoming aware that there were at least several attorneys, not admitted in New Hampshire, who, for several years, have been performing legal services on behalf of their employers while based in New Hampshire. Last fall, an attorney sought to apply for admission on motion to New Hampshire and informed the court that he had been working from a New Hampshire office for a corporation on legal matters not related to New Hampshire. After receiving a memo from the "unnamed applicant," detailing his activities, and receiving input from the Bar offering support for admission of the applicant by referring to the ABA's endorsement of a new Rule 5.5 regarding multijurisdictional practice, the Court issued an order allowing the attorney to be admitted.

Martin Honigberg, a member of the Rules Committee who participated on a subcommittee that drafted this section, said the intent of the new Rule 5.5 is to ensure that the judicial branch "knows who is practicing law in New Hampshire, even if they are not practicing New Hampshire law. We want to know that you are here."

The pro hac vice appearance process has also become more complicated, with the apparent goal of preventing abuse of the pro hac vice process. As before, to apply for this privilege, an attorney not admitted in New Hampshire will have to be associated with an active New Hampshire Bar member who will be present at any trial or hearing. The applicant also must supply a detailed sworn statement providing such information as: all courts to which he or she is admitted; whether the applicant has been previously denied a pro hac vice appearance or had that admission revoked in New Hampshire; specifics on all applications for pro hac vice within NH in the preceding two years; and whether there have been formal discipline or sanctions imposed on the applicant. Also, the pro hac vice applicant must provide information on any disciplinary or contempt proceeding of which he or she was the subject in the previous five years in any jurisdiction, and the outcome of each.

The rule also sets forth grounds for denial of applications, including court's determination that pro hac vice representation "may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent;" or the clients "may be at risk of receiving inadequate representation and cannot adequately appreciate that risk;" or "the applicant has engaged in such frequent appearances as to constitute common practice in this State."

A proposed change to RPC Rule 8.5 (a) also affirms that the disciplinary authority of NH's attorney discipline system extends to "A lawyer not admitted in this jurisdiction... if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct."

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