Dear Members of the Court:

At its August 21, 2001 meeting, the Professional Conduct Committee unanimously voted to recommend substantial changes to the New Hampshire Lawyer Disciplinary System, which, if approved by the Court, could be effective for the fiscal year beginning June 1, 2002. The changes recommended by the Committee are briefly as follows:

The Committee believes that major changes need to be made to accomplish the following:

1. Increase the current staff by adding a third lawyer, another secretary and an office manager.
2. Create a new position of disciplinary counsel with his or her own secretary which will necessitate additional office space.
3. Add more volunteers to decrease the workload of individual volunteers. This would be done by having staff complete all investigations now done by PCC Members; creating a separate Supreme Court screening committee, with the power to dismiss complaints or send them on to hearing; creating a large pool of persons who would be available to occasionally sit on hearings, all of which would be prosecuted by disciplinary counsel; reducing the size of the PCC which would act on hearing panel reports and handle other administrative matters.
4. Add forms of diversion.
5. Add more formality to the hearings and eliminate the current approach of a de novo hearing before a Judicial Referee.

The aim of these changes is to speed up the process by redistributing the workload and eliminating a second hearing when the PCC petitions for disbarment, suspension or public censure. At the same time, the new system would help eliminate the blurring of lines between the investigatory, prosecutorial and adjudicative functions of the Committee.

Staff

The current staff is too small and it is constantly falling further behind. Increasingly, time is taken up by issues and paperwork regarding pension, health insurance, payroll and other such matters. The office should be on-line and have an e-mail address but there is no time for a task even this simple.

Over the last three years, the Bar Association has gradually transferred the personnel functions of the Committee (which were historically performed by the human resource person at the Bar Association) over to the PCC staff. It has become a much greater burden on the staff than it ever was in the past.

By adding an office manager/human relations person, we could help free up the staff lawyers to work on complaints. The staff strongly believes that a third lawyer (and secretary) are needed because under this model, complaints would no longer be assigned to PCC members for further review and investigation. Instead, the staff attorneys would perform that function by actively seeking to speak with witnesses, obtaining more detailed information and so forth.

Each staff lawyer would handle a caseload and would develop a report and recommendation for dismissal, diversion, or hearing to be submitted to the screening committee.

The screening committee would be entirely separate from the PCC. It would operate under the name the "New Hampshire Supreme Court Lawyer Disciplinary Screening Panel" and would consist of nine members. Five members would be lawyers and four would be public members. A quorum of five members, at least two of whom would be public members, would be needed to take action on any given complaint.

The screening committee would meet on a monthly basis. The staff attorneys would provide each panel member with a report concerning each matter that is recommended for dismissal, prior to the screening panel meeting. If the screening committee agrees to vote for dismissal, the reports will become part of the permanent disciplinary file.

If a diversion program is implemented, it is at this stage in the proceeding that respondents could be diverted out of the system for remedial help. The screening panel would be able to order diversion for both matters that would otherwise be dismissed and for matters that would normally be assigned to disciplinary counsel for hearing.

All diversion would be public unless the screening committee votes to make it non-public based on one or more of the following issues: health, finances, family considerations or highly personal matters. Respondents must sign written agreements to comply with the terms of diversion. Examples of diversion can include required attendance at CLE programs, law practice management courses or cooperation with a lawyers assistance committee.

If a respondent declines to accept diversion or violates the terms of a diversion agreement, the underlying complaint will be processed as if diversion did not exist.

Recommendations by staff attorneys that matters go to a hearing shall be oral only.

Meetings of the screening panel itself shall not be open to the public, nor will they be open to the respondent, respondent's counsel, disciplinary counsel or the complainant.

If the respondent or disciplinary counsel request that the decision to have a hearing be reviewed, said request would be made to the PCC, rather than the screening committee.

By creating a full-time position of disciplinary counsel, who will prosecute at all hearings, a uniformity of presentation will occur where none exists at present. It will allow for more formal hearings to satisfy due process concerns and eliminate the need for a second evidentiary hearing.

In cases where the screening panel determine that a hearing is necessary, the staff attorneys would prepare a copy of the file for disciplinary counsel who would then prepare the witnesses and take other necessary steps to present the case at hearing. Disciplinary counsel shall have the authority at any time to go to the PCC if he or she believes that the evidence does not support going forward to a hearing or if he or she reaches a diversion agreement with a respondent prior to a hearing.

Disciplinary counsel would also have the responsibility for representing the PCC on matters that are appealed to the Supreme Court. Such appeals would only consist of judicial review and would be based on the record of the hearing panel and PCC. No de novo evidentiary hearing rights would exist.

Should disciplinary counsel have a conflict, staff counsel would have the authority to perform the duties of disciplinary counsel as needed.

An entirely separate group of persons, not members of either the New Hampshire Supreme Court Lawyer Disciplinary Screening Panel or the Professional Conduct Committee, would make up a pool from which hearing panels would be drawn.

The members of the pool would be appointed by the Supreme Court. The Subcommittee believes that there should be 50 persons in the pool, both lawyers and public members. It is recommended that there be five persons on each panel, but at least a minimum of three. There should be one or more public members on each panel. Specific panels would be chosen by the two Vice Chairs of the PCC.

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. It is anticipated that hearings will be longer since respondents will know there will be no second evidentiary hearings. It is not necessary for the rules of evidence to apply to satisfy due process requirements. Rules under the Administrative Procedures Act could be adopted.

Both disciplinary counsel and respondents should have the right to subpoena witnesses to the hearings.

Each hearing panel would be required to make written and specific findings of fact based on the evidence. Presumably, disciplinary counsel and respondents/respondents' counsel would commonly make this easier by submitting requests for findings.

Findings of fact would be binding on the PCC. Hearing panels may also make recommendations that the facts do or do not constitute clear and convincing evidence of specific rule violations. This type of recommendation, if made, would not be binding on the PCC.

The hearing and the detailed hearing panel report would be public. The report would be submitted to the PCC.

At the time the hearing panel report is sent to the PCC, it will also be sent to disciplinary counsel and respondent/respondent's counsel. They would each be given 10 days to submit, if they wish, a memorandum addressing the hearing panel report. The respondent and disciplinary counsel would also be provided with an opportunity to address the PCC for a period of ten minutes each at the meeting at which the report is considered. The Committee would consider the oral arguments, the hearing panel report and memoranda and then vote, based on the record, whether there is clear and convincing evidence of a violation(s) of the Rules of Professional Conduct. Oral arguments would be public but deliberations would not be public.

The PCC, which is no longer investigating complaints or hearing cases, can be reduced in size to eight lawyer members and four public members.

When misconduct is found, the PCC would have the authority to impose: reprimand, public censure or suspension not to exceed six months. The PCC would also have the ability to attach whatever conditions it feels appropriate to the discipline it imposes, given the particular circumstances of the misconduct.

The PCC would also have the right to divert individuals out of the system in appropriate cases, although in most cases it is envisioned that diversion will occur at the screening level.

A respondent would have a right to appeal to the New Hampshire Supreme Court only on issues of errors of law or abuse of discretion. Such appeals would be based on the record and respondents would not be afforded a right to an evidentiary hearing de novo. There would be briefing and oral argument.

If the PCC believes that misconduct warrants a sanction greater than six months, it would direct staff counsel or disciplinary counsel to file a petition with the Supreme Court. Again, the matter would go up based on the record with no de novo evidentiary hearing but there would be briefing and oral argument.

Disciplinary counsel would handle all matters in front of the New Hampshire Supreme Court.

With only one hearing, discovery should be part of the process. Before a matter reaches the screening level, respondent/respondent's counsel should be provided a copy of all documentation obtained by the staff attorneys. This should not include staff notes or reports to the screening panel because this could lead to PCC employees being called as witnesses.

Once a matter was designated for hearing, disciplinary counsel and respondent/respondent's counsel would be able to take depositions, subpoena witnesses and so forth.

This model calls for a number of additional volunteers coming into a new system. As a result, there would be a need for perhaps as much as a full day of training for new members at each level. Effective indoctrination programs need to be developed.

Interested lawyers and members of the public could be solicited through a widely disseminated press release.

Once a new structure is adopted, major changes would need to be made to New Hampshire Supreme Court Rule 37 and 37A.

Due process does not require that respondents be afforded a de novo evidentiary hearing. In fact, the Committee has only been able to identify three other states that appeal to hold de novo evidentiary hearings.

The Committee's administrative staff has written to and requested copies of the procedural rules from all 49 other states as well as the District of Columbia. It has received responses from 39 jurisdictions (38 States and the District of Columbia) and has reviewed the procedures from 38 of those jurisdictions (the response form North Dakota referred staff to their website). No responses were received from Arizona, California, Connecticut Kentucky, Mississippi, Montana, Ohio, South Dakota, Utah and West Virginia. It appears from the review that the vast majority of states do not provide for de novo evidentiary hearings. While some states such as Nevada, have rules providing for what is referred to as "...a de novo review of the record from below" that de novo review does not afford respondents with a right to an evidentiary hearing de novo. Most of those states that do not provide for de novo evidentiary hearings fall into one of two categories including those, like Nevada, which provide for automatic review of the record from below when "serious" discipline is recommended. Other states provide a similar review, by an aggrieved respondent who has the right to appeal the results of the disciplinary committee hearing and to proceed to briefing and oral argument, with the record from the hearing below being transferred along with the notice of appeal.

Arkansas, Maine and Minnesota are the states that appear to provide for de novo evidentiary hearings, at least in certain circumstances.

The Committee believes that due process rights of respondents are adequately protected even without the right to a de novo evidentiary hearing. While the Committee has not conducted an exhaustive search of case law concerning due process issues involved in lawyer disciplinary proceedings, the limited review that it has conducted has disclosed no cases where courts have held that a right to a de novo evidentiary hearing is among the due process rights that need to be guaranteed to a respondent in lawyer disciplinary proceedings. A detailed discussion of due process rights afforded in lawyer disciplinary proceedings is set forth in ABA/BNA Lawyer's Manual on Professional Responsibility 101:2101-2117 "Misconduct and Discipline - Disciplinary Process - Procedure" 1994 and states, in part, the following:

Lawyer discipline cases are described by various states as sui generis, neither criminal nor civil, or as "quasi criminal' or hybrid, with the principal aim of protecting the public from individuals who are unfit to practice law. Because of this, and because the interests at stake in lawyer disciplinary proceedings are deemed not as essential as those at stake in criminal proceedings, the procedural protections available in a criminal matter do not necessarily apply. See Razatos v. Colorado Supreme Court, 756 F2d 1429, 1435 (CA10 1984), cert. denied, 471 U.S. 1016 (1985) (since lawyer disciplinary cases are not criminal cases, a respondent lawyer's due process rights "do not extend so far as to guarantee the full panoply of rights afforded to an accused in a criminal case"); see also Fitzsimmons v. California State Bar, 667 P2d 700 (Calif SupCt 1983) (lawyers subject to disciplinary proceedings are not afforded all of the procedural safeguards extended to criminal defendants, as disciplinary proceedings are sui generis as opposed to purely civil or criminal); In re Jaques, 258 Nw2d 443 (Mich SupCt 1977) (due process does not require the application of criminal protections "at every turn"); Mississippi State Bar v. Young, 509 So2d 2 10 (Miss SupCt 1987) ("[t]here are among the procedural trappings normally attendant upon a criminal trial numerous 'rights' which have no place in bar disciplinary proceedings"; right to jury and to proof beyond a reasonable doubt are two such rights).

However, the applicability to disciplinary proceedings of certain constitutional concepts, such as due process and the protection against self-incrimination, has been established by the U.S. Supreme Court. In re Ruffalo, 390 U. S. 544 (1968) (due process); Spevak v. Klein, 385 U. S. 511 (1967) (protection against self-incrimination).

The cornerstone of any analysis of due process in modem lawyer disciplinary proceedings is In re Ruffalo, 3 90 U.S. 544 (1968), which established that a respondent in a lawyer disciplinary hearing has a due process right to fair notice of the charges against him or her.

Building upon Ruffalo, subsequent case law has established that a lawyer is entitled to fair notice of the charges and the facts on which they are based, and a meaningful opportunity for explanation and defense, with many jurisdictions allowing some form of substituted service upon an address required to be maintained for the purpose. In re Ruffalo; In re Cordova-Gonzalez, 996 F2d 1334 (CA 1), cert. denied, 114 SCt 549 (1993); Statewide Grievance Committee v. Presnick, 575 A2d 210 (Conn SupCt 1990) (respondent is entitled to notice, fair hearing, and fair determination, in exercise of sound judicial discretion, of questions at issue, and to appeal to state's highest court for determination of whether or not he has in some substantial manner been deprived of such rights); In re Schwenke, 849 P2d 573 (Utah SupCt 1993) (rejecting special master's recommendation of disbarment and ordering reinstatement instead where order to show cause had been mailed to post office box, order of discipline had been served at restaurant employing respondent's namesake son, and respondent had not attended hearing; court announced that "[w]e think that suspension and disbarment proceedings call for adherence to minimum requirement of procedural due process, including notice of a hearing and notice that the attorney's license has been restricted or withdrawn). See generally Brewer, Due Process in Lawyer Disciplinary Cases: From the Cradle to the Grave, 42 S.C.L. Rev. 92 Summer 1991).

At this point, any budget analysis must be based on a series of assumptions. For example, the cost of health insurance, costs of computers and a new phone system and even salaries are somewhat speculative at the moment.

Nonetheless, it can be reasonably concluded that the current budget would be doubled. Salaries and benefits are a large part of any budget and the staff would increase from five to ten.

Under the current budget, $411,621.67 is attributable to members of the Bar. It appears that at least an additional $382,7l 7.46 would be needed on a speculative budget analysis. This is the basis for concluding that it is reasonable to assume a final budget would be approximately double the current amount.

The amount of any assessment would, as always, depend on the amount of reserve the Committee has as it approaches the next fiscal year, as well as the number of members of the Bar at that time.

Sincerely,
Robert C. Varney
Chair

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