THE NHBA ETHICS Committee is nearing completion of its comprehensive review and updating of the NH Rules of Professional Conduct. The draft version, with links to the existing code and the ABA’s revised Model Code of Professional Conduct, are under NH Practice Guidelines.

Once the review is complete, the Ethics Committee is expected to announce a deadline for final comments before the committee finalizes its draft and submits it to the NH Supreme Court, where it will likely be reviewed by the Advisory Committee on Rules.

Among the latest rules to be revised is Rule 7.3, currently called "Regulation of Solicitation." The Ethics Committee’s proposed rewrite, retitled, "Direct Contact With Prospective Clients," contains the following key revisions:

(Strikethrough copy represents the current version and the underlined material is the new language.)

(a) A lawyer shall not by in-person or live telephone contact or recorded telephone contactnot, by in-person, live telephone, recorded telephone, or real-time electronic contact, solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationshipclient, unless the prospective client regularly requires legal services and is not known to be in need of legal services in a particular matter, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. gain, unless the person contacted:

(b) A lawyer shall not solicit professional employment in any manner from a prospective client by written or recorded communication or by client, in-person or telephone contact even when not otherwise prohibited by paragraph (a), if: if:

(2) the prospective client has made known to the lawyer a desire not to be solicited; or

(d) A lawyer shall retain a copy of any written solicitation and mailing list for a period of two years. Every written(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client with whom the lawyer has no family or prior professional relationship shall beknown to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient clearly labeled "Advertising" in bold type on the outside envelope and on the inside text.of the communication is a person specified in paragraphs (a)(1) or (a)(2).

(e) Nevertheless, if success in asserting rights or defenses of the lawyer’s clients in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept employment from those the lawyer is permitted under applicable law to contact for the purpose of obtaining their joinder. This rule does not prohibit a lawyer or a partner or associate or any other lawyer affiliated with the lawyer or the lawyer’s firm from requesting referrals from a lawyer referral service operated, sponsored or approved by a bar association or from cooperating with any other qualified legal assistance organization.

(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. Further, the prohibition in paragraph (a) shall not apply to a solicitation by a non-profit organization.

(e) Nevertheless, if success in asserting rights or defenses of the lawyer’s clients in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept employment from those the lawyer is permitted under applicable law to contact for the purpose of obtaining their joinder. This rule does not prohibit a lawyer or a partner or associate or any other lawyer affiliated with the lawyer or the lawyer’s firm from requesting referrals from a lawyer referral service operated, sponsored or approved by a bar association or from cooperating with any other qualified legal assistance organization.

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