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Bar News - September 21, 2001 Process Underway to Solicit Comments on Conduct Code NEW HAMPSHIRE'S RULES of Professional Conduct are more than 15 years old - an eternity at a time when the circumstances of legal practice have changed dramatically. The NHBA Ethics Committee plans to use the Bar's Web site to develop a more inclusive process for seeking comment and shaping proposals to recommend changes to the Supreme Court's ethics rules governing lawyers in New Hampshire. The review process will be coordinated with the ABA's review of proposed changes to the Model Rules of Professional Conduct. Feedback from members of the Bar and the public will be relayed to the NH Supreme Court's Advisory Committee on Rules, said Rolf Goodwin, former chair of the Ethics Committee, who will coordinate the committee's work on the project. "Our plan is to post proposed changes on the NHBA Web site, and to invite comment via all means, including e-mail," said Goodwin. The comment section of the Web site will not be an unmoderated "chat room," but the site will be open to all members of the public, not just members of the Bar. (As part of its own automation efforts, the Supreme Court will soon be posting an unannotated version of the Court Rules, including the Code of Professional Conduct, on its Web site.) Goodwin said the Ethics Committee is aware of frustration among Bar members over the inadequacy of some provisions of the current code. One of the most glaring examples is the rule governing referral fees. "There is a real debate within the Bar about referral fees. One of the issues is whether lawyers should be able to be paid a share of a collection simply for bringing the client into the system and referring the client to another lawyer, without performing substantive work on the matter - the so-called 'naked referral,'" Goodwin said. "The present rule is not particularly helpful because it is unclear. Lawyers should not need to guess what is permitted." Another area of concern is trust accounting rules: "There is a sense among New Hampshire lawyers, especially the real estate bar, that the trust accounting rules are not only unrealistic and at variance with banking law (for example, treating bank checks as 'not good funds' until actually cleared, while treating wire transfers as good upon receipt), but that the rules have actually done a disservice to the public by steering closing work toward unregulated non-lawyers," he said. "For example, residential closing companies, for the most part, are not bound by any ethics rules, and are not financially responsible to parties to closings. It may be that a level regulatory playing field for everyone performing closings would be more to the point." "Some of the existing rules are obviously unconstitutional. For example, the solicitation rule says that a lawyer may not make 'live' contact with a prospective client unless the prospective client is either a relative or an existing client." Goodwin said the rule simply conflicts with reality - plainly read, does it mean an attorney can't take a new businessperson in town out to lunch? But it also is an obvious violation of basic constitutional rights, he said. By creating this clearinghouse for comments and for review of proposed changes, Goodwin said, "The Ethics Committee hopes to enable the Supreme Court Advisory Committee on Rules to have more and better feedback than has been feasible before now." Goodwin emphasizes that "the age of the Rules, and the existence of a few problems, does not lessen the importance of the Rules. We are looking at fine-tuning the Rules, not throwing them out. They are, and will continue to be, the standard to which New Hampshire lawyers are held. They are worth rereading, and thinking about, regularly."
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