At a June 1 public hearing, members of the Board of Governors, the Ethics, Professionalism and CLE committees spoke against several revisions to Supreme Court Rule 53 proposed by the NH Minimum Continuing Legal Education Board.

Of particular concern were two changes that would delete the existing requirements that the NHMCLE annual requirement include at least two hours devoted to "legal ethics, professionalism or the prevention of malpractice, substance abuse or attorney-client disputes" and that at least half of an individual attorney’s annual credits be earned in a "live" setting allowing for some form of interaction.

NHMCLE Board Chair Douglas Chamberlain, defending the changes, said deleting the specific ethics requirement would be replaced by a requirement that all programs incorporate aspects of ethics and professionalism "as an integral part" of the course or seminar. In reviewing course content to determine whether a program or portion of one qualifies for ethics credit, Chamberlain said, NHMCLE Board members have found that too often the content of the ethics portion of the programs were of "dubious quality" that "were grafted on as an afterthought."

Regarding the "live" hours requirement, Chamberlain said expanding options for program delivery through video, audio, and now through interactive online programs have blurred the distinctions between live and non-live, and that for some attorneys, learning by using an interactive program is more effective than attending a seminar-style lecture. "This change will provide equitable treatment for lawyers who attend nontraditional programs," he said.

However, these changes were opposed by the New Hampshire Bar Association Board of Governors, as represented by Russell Hilliard, Immediate Past President. In his testimony, Hilliard, who is also chair of the NHBA CLE Committee and a member of the Professionalism Committee, expressed the Board of Governors’ view that the value of both the Ethics/professionalism requirement and the live requirement outweighed any administrative complications they entail. Eliminating the "live" requirement overlooks the "professional value of the interaction" between colleagues and between attendees and faculty members at seminars, he added.

Hilliard also endorsed views expressed in a letter sent to the Advisory Committee on Rules by Ethics Committee Co-Chair Rolf N. Goodwin. "We maintain that the requirement of annual continuing education on ethics matters is an important assurance to the people of New Hampshire that the self-regulation of the legal profession provides meaningful protection to the public," Goodwin wrote, on behalf of the entire committee.

"We are concerned that the Rules of Professional Conduct, and their impact on daily practice, are not sufficiently fresh in the minds of many practitioners," Goodwin’s letter said. "In the absence of a refresher requirement, many practitioners will not have had specific cause to review the current Rules of Professional Conduct since passing the bar, and their study of the Rules (or Code) applicable at their time of admission is relatively unlikely to have focused on the relationship of the Rules to their current area of practice."

Only two of the 40 states with an MCLE rule do not have an ethics requirement.

The Ethics Committee also expressed concern that programs specifically devoted to ethics, such as the Bar’s widely successful Statewide Professionalism Day, may not draw as many participants without the incentive of obtaining necessary ethics credit hours.

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