The court, having received a proposed amendment to Supreme Court Rule 3 from the New Hampshire Supreme Court Advisory Committee on Rules and having considered a proposal from the New Hampshire Bar Association that would require an amendment of Supreme Court Rule 51, hereby requests public comment on the following proposals for amendments to court rules:

1. Supreme Court Rule 3 re definition of mandatory appeals. (Appendix A)

2. Supreme Court Rule 51B re membership of the Advisory Committee on Rules. (Appendix B)

On or before July 29, 2005, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the above rules. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at:

Copies of the proposed changes are available upon request to the clerk of the Supreme Court at the N.H. Supreme Court Building, 1 Noble Drive, Concord, New Hampshire 03301 (Tel. 271-2646). In addition, the proposed changes are available on the Internet at: http://www.courts.state.nh.us/index.htm

The current rules of the New Hampshire state courts are also available on the Internet at: http://www.courts.state.nh.us/rules/index.htm

June 14, 2005
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire

Amend Supreme Court Rule 3 by amending the definition of "mandatory appeal" to add a new subsection (7), so that said definition shall state as follows:

"Mandatory appeal": A mandatory appeal shall be accepted by the supreme court for review on the merits. A mandatory appeal is an appeal filed by the State pursuant to RSA 606:10, or an appeal from a final decision on the merits issued by a superior court, district court, probate court, or family division court, that is in compliance with these rules, other than the following:

(1) an appeal from a final decision on the merits issued in a post-conviction review proceeding (including petitions for writ of habeas corpus and motions for new trial);

(2) an appeal from a final decision on the merits issued in a collateral challenge to any conviction or sentence;

(3) an appeal from a final decision on the merits issued in a sentence modification or suspension proceeding;

(4) an appeal from a final decision on the merits issued in an imposition of sentence proceeding;

(5) an appeal from a final decision on the merits issued in a parole revocation proceeding;

(6) an appeal from a final decision on the merits issued in a probation revocation proceeding; and

(7) an appeal from a final decision on the merits issued in a landlord/tenant action filed under RSA chapter 540 or a possessory action filed under RSA chapter 540.

Amend Supreme Court Rule 51B by deleting said section B and replacing it with the following:

(1)  There shall be an Advisory Committee on Rules, which shall be composed of fourteen members as follows:

(a)  One judge from each of the following courts shall be appointed by the supreme court: district court, probate court, superior court, and supreme court.

(b)  Two attorneys shall be appointed by the supreme court.

(c)  Three lay persons shall be appointed by the supreme court.

(d)  One member shall be appointed by the Governor.

(e)  One member of the senate shall be appointed by the president of the senate.

(f)  One member of the house shall be appointed by the speaker of the house.

(g)  One clerk of court shall be appointed by the supreme court.

(h) One member of the New Hampshire Bar Association Board of Governors shall be appointed by the president of the New Hampshire Bar Association.

(2)  Appointments by the supreme court shall, where possible, be made from the Committee on Judicial Conduct, the Committee on Professional Conduct, the New Hampshire Bar Association’s Committees on Civil Procedure, Evidence and Ethics, and such other committees as may be either studying or enforcing rules for the administration of justice.  All such committees shall channel recommended changes through the Advisory Committee on Rules and shall serve as its sub-committees for specific areas of rule-making.

(3)  A vacancy in the office of the committee shall occur

(a)  when a member ceases to be a member by resignation or otherwise;

(b)  when a judge ceases to hold the office which he or she held at the time of selection;

(c)  when a lawyer ceases to be admitted to practice in the courts of this State or is appointed to a judicial office;

(d)  when a lay person becomes a lawyer or a judge;

(e)  when a legislative member ceases to be a member of the general court;

(f) when a New Hampshire Bar Association Board of Governors member ceases to be a member of the Board of Governors.

(4)  Members appointed by the Governor, the president of the senate, the speaker of the house, and the president of the New Hampshire Bar Association shall serve at the pleasure of the appointing authority.

 (5)   The secretary of the committee shall be the clerk of the supreme  court or any other person designated by the supreme court.

Gary H. Reiner of Kittery, Maine, was indicted by a federal grand jury on several felony charges arising out of his alleged connection with prostitution and money laundering activities allegedly occurring at a health club in Kittery, Maine. By letter dated January 26, 2005, the court learned of the indictment, and on February 4, 2005, the court issued an order immediately suspending Attorney Reiner from the practice of law in this State until further order of this court. The court permitted Attorney Reiner to show cause within 10 days why the suspension should be lifted.

Attorney Reiner filed a response to the court’s suspension order. The Attorney Discipline Office (ADO) was ordered to file a memorandum addressing the issues raised in Attorney Reiner’s response. A hearing on Attorney Reiner’s response was held on March 9, 2005. After the hearing, the court referred the matter to a Judicial Referee (Gray, J.) to hold a hearing on the issue of whether Attorney Reiner’s suspension should remain in effect pending resolution of the criminal charges. After a hearing, the judicial referee submitted a report in which he recommended that the suspension not remain in effect. On April 20, 2005, the court heard oral argument on the issue of whether to adopt the referee’s recommendation. On May 6, 2005, the court issued an opinion describing the effect of the presumption of innocence in the proceeding and the burden on the ADO to show that suspension was necessary for the protection of the public and the integrity of the legal profession. The court remanded the matter to the judicial referee for a further hearing.

After the further hearing, the judicial referee recommended that the interim suspension remain in place pending resolution of the criminal charges. The court heard oral argument on the issue of whether the referee’s recommendation should be adopted on June 22, 2005.

After considering the referee’s report and recommendation, and the parties’ briefs and oral arguments, the court concludes that the suspension imposed on February 4, 2005, should be lifted on the following terms. Attorney Reiner is hereby reinstated to the practice of law in New Hampshire with the following conditions:

1. On or before July 11, 2005, Attorney Reiner shall notify all current New Hampshire clients of the pending criminal indictments. Attorney Reiner shall certify to the court that he has complied with this condition on or before July 18, 2005. Until the criminal charges are resolved, Attorney Reiner shall notify all new or prospective New Hampshire clients of the pending criminal charges.

2. Attorney Reiner shall keep the ADO and the Supreme Court advised of

the status of the criminal proceedings and shall immediately notify the

ADO and the court if any other charges are brought against him.

3. Attorney Reiner shall immediately notify the ADO and the Supreme Court if the authority charged with the discipline of attorneys in any other jurisdiction takes action against him.

Failure to comply with any of these conditions shall result in the reimposition of the suspension.

An explanatory opinion of the court will follow.

Broderick, C.J., and Dalianis and Duggan, JJ., concurred; Galway, J., dissented.

DATE: June 24, 2005
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire

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