THE PROFESSIONAL CONDUCT Committee has asked the NH Supreme Court to consider a series of far-reaching changes to improve a lawyer discipline process now bogged down by delays and fraught with inconsistencies. The plan would eliminate the second de novo hearing available to lawyers facing serious sanctions, and reduce New Hampshire’s near-total reliance on volunteers to screen and investigate alleged conduct violations.

"The aim of these changes is to speed up the process by redistributing the workload [of volunteers] and eliminating a second hearing [before a judicial referee] when the PCC petitions for disbarment, suspension or public censure," a PCC subcommittee wrote in a draft report prepared this summer. "At the same time the new system would help eliminate the blurring of lines between the investigatory, prosecutorial and adjudicative functions of the committee."

Although costs for the new system have been only roughly estimated, PCC Chair Robert C. Varney and PCC Administrator James L. DeHart said the recommended changes would likely double the PCC assessment attorneys pay annually – today, most attorneys pay $80.

The changes were presented last month to the Supreme Court, but the court gave no indication of when or how it would consider them. Informally, members of the court have encouraged PCC members to gather input from Bar members and the public on the disciplinary overhaul.

Martha Van Oot, NHBA president-elect, who served on the PCC last year as the Bar’s representative, helped write the new plan. She believes that the public and the Bar, once they understand the details, will support the changes because the current system serves no one well. The reliance on volunteers leads to inconsistencies and the de novo second hearing unduly prolongs the process, she said.

Varney has warned that change is needed now because volunteers are unable to keep up with the work, and it is taking longer and longer to process complaints. Although the volume of cases has not dramatically risen, their complexity and sophistication has, further taxing the 18 volunteer members of the PCC. At the same time, the Legislature is taking a close look at the structure of the judiciary and the legal profession in New Hampshire. If the flaws of the PCC aren’t addressed by the system itself, Varney warned, it would only heighten the political pressure on the justice system.

Van Oot said the new plan calls for professionals to handle more of the work of the committee, bringing unifor mity and getting the work done more quickly.

"I think lawyers would rather have a professional system," said Van Oot, who has defended some attorneys before the PCC. "The delays that exist now can be agonizing: There can be a three-year wait for an outcome."

The following are major components of the plan:

• PCC staff expansion. The current staff, consisting of two attorneys (Administrator DeHart and Deputy Administrator Thomas Trevethick), an accountant/auditor (who conducts audits and compliance reviews) and two secretaries, would be doubled with the addition of an office administrator, two lawyers (another staff lawyer and an attorney to serve as disciplinary counsel) and two secretaries. The professional staff would handle investigations, preparation of cases and recommendations to a screening committee.
• Screening committee. A new entity, a nine-member Lawyer Disciplinary Screening Panel, would meet monthly to review matters investigated by the staff attorneys. The committee, composed of both lawyer and non-lawyer members, could vote to dismiss a matter, send it on to the formal hearing stage or recommend "diversion" or alternative remedies (e.g., required attendance at CLE programs, law practice management training or working with the Lawyers Assistance Committee on personal issues). Its decisions could be appealed to the PCC.
• Professional prosecution. Staff attorneys would prosecute matters that proceed to hearings. The PCC report said this would allow for "a uniformity of presentation...where none exists at present." Currently, complainants present their own cases against attorneys and Varney said that the success of a complaint often depends on the articulateness of the complainant. A more formal, judicial-like hearing also would satisfy due process concerns and eliminate the need for a second evidentiary hearing before a judicial referee.
• Hearing panels. Sitting as fact-finders at those hearings would be five-person panels drawn from a pool of 50 volunteers, both lawyers and non-lawyers. "The purpose of a large pool is to assure that a panel could be found for any given date, as well as to lessen the chances of anyone being asked to serve too often," the PCC subcommittee wrote. "It is anticipated that hearings will be longer since respondents will know there will be no second evidentiary hearings." Like juries, the hearing panels’ written findings of fact would be binding on the PCC, and its reports would be made public.
• Narrower role for a smaller PCC. The PCC, reduced in membership to eight lawyer members and four public members, would consider the reports of the hearing panels, memoranda submitted by the disciplinary counsel and the respondent in response to those reports, and hear oral arguments before coming up with a disposition on the case. If misconduct is found, the PCC could issue a reprimand, a public censure or suspend an attorney for six months or less. The PCC’s actions would be public; only its deliberations would be private.

If greater sanctions were believed warranted by the PCC, it would direct the staff attorneys to file a petition with the Supreme Court for a suspension of more than six months or for disbarment. Appeal to the Supreme Court of a sanction ordered by the PCC or of a PCC petition for more severe sanctions would be limited to errors of law or abuse of discretion, and would be based on the record. There would be no second evidentiary hearing.

NHBA President Peter Hutchins, who two years ago served a one-year term on the PCC as the Bar’s representative on the panel, said that "improvements are sorely needed," and he encouraged members of the Bar to consider the PCC’s ideas for reform carefully. He said that the current system, despite the hard work of its volunteers and staff, too often does not provide timely or completely consistent dispositions. Hutchins is also mindful of the mood of the Legislature. In its last session, a bill (HB 280) introduced by a member of the House Judiciary Committee called for a new lawyer disciplinary committee composed solely of legislators, further granting those legislators the ability to impose discipline, including suspensions and disbarment.

See Robert Varney’s article, "Lawyer Discipline in New Hampshire," which more fully lays out the rationale for PCC change, in the June 2001 issue of NH Bar Journal.

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