AT A PUBLIC HEARING held June 2 by the Supreme Court’s Advisory Committee on Rules, the NHBA Ethics Committee commented on a proposal to create a limited license for in-house counsel who live or occasionally work in New Hampshire but do not practice in its courts (see page 1, May 7, 2004 Bar News).

Rolf Goodwin, co-chair of the Ethics Committee, relayed comments from the committee on proposed changes to Rules 5.5 and 8.5 of the Rules of Professional Conduct. In a letter to the Advisory Committee, Goodwin said that the Ethics Committee questioned the need for NH to vary from the ABA’s model rule 5.5 and whether the requirements for compliance were too strict.

The Ethics Committee is currently conducting a top-to-bottom review of the NH Rules of Professional Conduct and it had already drafted changes to Rule 5.5 that more closely follow the ABA’s approach. (Comments on the Ethics Committee’s draft of changes to the RPC are invited. The text is under NH Practice Guidelines.)

The following is the text of Goodwin’s letter, submitted on behalf of the Ethics Committee:

Prior to receiving the [Rules Committee proposal], the Ethics Committee discussed the ABA’s version of Rule 5.5 at our April retreat. We voted to recommend that the Court adopt the ABA Model Rule text as proposed, reasoning that the rule, which addresses in a limited way many of the most common multijurisdictional issues, represents a good first step in enhancing client service in a changing world.

During our April retreat, the Ethics Committee identified some potentially troubling issues in the ABA text, such as the meaning of the term ‘temporary’ in Section (c). However, we felt that rather than attempt to define this term now, experience under the rule would help us see how the rule works in our state, allowing for further revision later. Also, while we see no reason for New Hampshire to move in lockstep with the ABA as to Rules where we think the New Hampshire way is better, the Ethics Committee believes that in this area uniformity, at least initially, among the states would have some obvious benefits. Following our May review, we continue to believe that adoption of the ABA Model Rule 5.5 would best protect clients and the public in New Hampshire. In light of this, the Ethics Committee supports that portion of the draft rule that is consistent with the ABA’s Model Rule version

Sections (e) and (f) of the present New Hampshire proposal raise several problems. First, we are concerned about the scope of the limited admission system created in section (f). For example, as we read the text, a corporate counsel who is not admitted here and does not maintain an office in New Hampshire, but who comes here (perhaps as one of many states) on a somewhat regular basis to perform work for a New Hampshire subsidiary of her or his employer, would be required to seek limited admission in New Hampshire. This conclusion arises because the counsel would likely not qualify as doing ‘temporary’ work here and, under the proposed rule, his or her New Hampshire work would cause a violation of the rule unless he or she goes through the process of obtaining and keeping limited admission. We expect that a unique New Hampshire rule may cause many in-house counsel in other states to trip over this problem while not viewing themselves as practicing law in New Hampshire.

The New Hampshire proposal exacerbates the problem with the ABA Model Rule that we noted earlier, in that the line between ‘temporary’ service under section (c) and ‘systematic and continuous’ presence under section (b) is anything but clear. Under the ABA Model Rule version, however, this distinction does not present problems for a corporate employee in the above example since she or he can come to New Hampshire, even if regularly, under the exemption for corporate practice.

A middle route, should the Court wish to keep the requirement for the limited admission of in-house counsel, is to narrow the coverage by applying it only to those who live or have a primary office in New Hampshire. See e.g., California Supreme Court Rule 965 (http://www.courtinfo.ca.gov/reference/documents/mjpfinalrept.pdf), Idaho Rules Governing Admission, Rule 220 (http://www2.state.id.us/isb/rules/ibcr.htm) Second, while we are totally in support of the goals of section (e), we think inclusion of subsection (1) may cause some confusion. Rule 5.5(e)(1) seeks to subject those practicing under Rule 5.5, on temporary or permanent basis, to the New Hampshire Rules and disciplinary mechanism. However, proposed Rule 8.5(a) does the same thing. Some members of the Ethics Committee were concerned that the differences in the text, if both were adopted, could complicate prosecution of cases. We suggest that if 8.5 is adopted, proposed Rule 5.5(e) (1) be deleted.

The Ethics Committee voted to support Rule 8.5, subject to the following changes: In (A), second sentence, change the beginning to read "A lawyer, admitted in another jurisdiction but not admitted in this jurisdiction..." to make it clear that the term "lawyer" in this context is not intended to include a person not subject to any disciplinary jurisdiction. In (C), change "attorneys at law" to "lawyers", and "State" to "jurisdiction", for consistency with the text in (A) and (B).

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