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Bar News - August 11, 2006


Rewriting the Rules: Paying Attention? New Ethics Code Could Have Broad Impacts

By:

Have you looked at the proposed New Hampshire Rules of Professional Conduct (RPC)? This proposal, now before a court committee, could change the way law is practiced in New Hampshire—in the courtroom, in the interactions between lawyers and their clients and between lawyers and lawyers, and in the way the business of law is managed.

 

The new RPC, a rule-by-rule rewriting of the NH lawyers’ rules of
ethics, is pending before the NH Supreme Court Advisory Committee on Rules. The Rules Committee has set a Sept. 1 deadline for “preliminary public comment” on the proposal from the Ethics Committee, as well as a separate proposal from the Pro Bono Referral Program to revise Rule 6.1 regarding attorneys’ Pro Bono obligations. (See separate article on page 16.)

 

The new rules will be discussed in a live, one-hour Web cast on Aug. 16. The non-credit program, aimed at raising awareness of the proposal and stimulating comment on it, is being offered FREE to NHBA members through the Online CLE portal at www.nhbar.org. The program, starting at noon, will also be recorded and available for later viewing.

 

See Rewriting the Rules at www.nhbar.org for previous Bar News and Bar Journal articles on the proposal, and for more commentary. Many of the rules in the proposed RPC have “NH Comments” which provide examples or illumination of the intent of the rules. The current RPC does not have “Comments.”

 

The following is a brief listing of potentially significant issues or changes in the rules. (Thanks to Ethics Committee member Mitchell Simon and Peter Beeson for the use of their overview presented to the NHBA Board of Governors on May 18.)

 

Greater attorney accountability for misstatements in court. New language for Rule 3.3 (Candor to the Court) heightens attorneys’ duties to prevent or correct all misstatements (not just those that are “material), and clarifies remedial measures required when previously submitted evidence is discovered to be false.

 

Sale of law practice allowed. The proposal creates a new Rule 1.17, following the guidance of the ABA’s Model Rules, governing the sale of a law practice, not currently allowed under the NH RPC.

 

Allows conflict “screening” of lawyers in private practice.  Allows law firms greater liberty to take on clients with interests adverse to those of “prospective” clients who are not represented by the firm but have spoken with an attorney in the firm; as long as the attorney who was consulted is insulated from those working on the case. Also, the new rules would allow law firms the ability—with appropriate “firewall” safeguards—to represent clients even if a member of the firm had previously (at another firm) represented someone with interests adverse to that client.

 

Multijurisdictional practice. A new Rule 5.5 (c ) allows lawyers admitted in other states (and in good standing there) to provide limited services in NH, using the “safe harbor” language provided in the ABA Model Rules, which would provide reciprocity for NH attorneys providing limited services in other jurisdictions.

 

Ancillary services. Clarifies under what circumstances lawyers’ ethics rules would apply when attorneys are providing non-legal services.

 

The following Rules were previously discussed in Bar News “Rewriting the Rules” articles: 

 

Written fee agreements required? Two versions of a Rule 1.5 (b) were submitted by the Ethics Committee: one version requires a written fee agreement in advance of most engagements; an alternative requires a confirmation letter (“a writing”) sent by the attorney to the client.

 

Contingency fees allowed in some family law cases. For example, in such cases regarding “enforcing a property division order or an accrued obligation for child support or alimony; or other financial orders [or]… obtaining a property division of assets hidden during the divorce.”

 

Allowing “pure” referral fees? Two variations of Rule 1.5 (f) were forwarded to the Rules Committee. One version maintains the status quo, requiring an attorney who shares in a fee with a referring attorney to maintain an involvement in the case; an alternative explicitly allows the referring attorney to collect a fee without requiring further participation in the case.

 

Fixed fees paid only for work when “earned.”  In a change to Rule 1.15.d, the proposal calls for attorneys to withdraw fees from client accounts only when “earned”; this change would affect those who charge flat or fixed fees and do not maintain sophisticated bookkeeping systems to correspond the withdrawal from client accounts with work as performed.

 

Discretionary disclosure expanded. In the wake of several corporate scandals nationwide, the ABA has greatly expanded the discretion for attorneys to violate client confidentiality to prevent harm to others. The NH proposal expands discretion over the current rules, although not to the extent advocated by the ABA.

 

Client consent standard changed. Adopting the ABA Model Rules standard, attorneys would have to meet a more stringent “informed consent” standard, instead of the “consent after consultation” standard in the current NH RPC. 

 

The effort to update NH lawyers’ rules of the road was undertaken by the NHBA Ethics Committee in 2001 in the wake of the ABA’s adoption of revised Model Rules of Professional Conduct (a project known as Ethics 2000) and is the first overhaul of NH’s ethics code since 1986.

 

David Peck, secretary to the Advisory Committee on Rules, said that the Committee is seeking guidance from the Bar and the public on what areas of the proposed Rules merit the most attention during its review.

NHLAP: A confidential Independent Resource

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