FOLLOWING UP ON a new rule, effective March 1, 2003, that required New Hampshire attorneys to disclose to clients if they do not have minimal levels of professional liability insurance, the NH Supreme Court Advisory Committee on Rules is now considering a rule requiring annual reporting of such coverage to the court.

The Supreme Court Advisory Committee on Rules, at its public hearing set for 1:00 p.m. on Wednesday, June 4, 2003, will consider a new Supreme Court Rule 50-B that would require all attorneys to "disclose the status of their professional liability insurance coverage on or before August 1st of each year." The disclosure would be part of the "Certificate of Compliance" form that accompanies the New Hampshire Bar dues and court fees package sent each year.

The proposed reporting rule provides that attorneys certify that they have at least $100,000 in malpractice coverage per occurrence or $300,000 in the aggregate, or certify that they are exempt from the reporting rule because they are either government attorneys or employed as in-house counsel. The rule also does not apply to full-time judges, marital masters or court clerks.

Failure to comply with the proposed new Rule 50-B could result in fines of $100 per month for each month after Aug. 1 that the form remains incomplete or unfiled.

This fall, the Supreme Court approved a new Professional Conduct Rule 1.17, effective March 1, requiring that "a lawyer shall inform a client at the time of the client’s engagement of the lawyer or at any time subsequent to the engagement of the lawyer if the lawyer does not maintain professional liability insurance" at or above the minimal levels of coverage specified in Rule 50-B. Once the rule went into effect, lawyers also were required to notify all existing clients if they do not possess the minimal liability insurance coverage. (Consult the Rules of Professional Conduct at the judicial branch web site at www.courts.state.nh.us for a copy of the required disclosure form.)

At the June 4 public hearing, the Rules Committee also will take testimony and receive written comments on the comprehensive overhaul of the attorney disciplinary system that has been proposed by the Professional Conduct Committee.

To make the attorney discipline process more streamlined and more consistent, the PCC has made a multi-faceted proposal that would have the basic investigative work on complaints conducted by staff attorneys and create a complaint screening committee independent of the PCC. There would also be a hearings committee from which fact-finding panels would be appointed for each case. Each panel would make factual findings and recommend dispositions, which would be presented to the PCC in the form of a report. The PCC, reduced in membership to 12 members, would focus on disposition of the cases, including diversion or dismissal, and would be empowered to impose public censures or suspensions of up to six months. Currently, the PCC is burdened with the task of investigating cases, conducting hearings, and deciding on sanctions, yet is limited in its authority to impose discipline to non-public reprimands. Also, the appeal of PCC decisions would be based on the record, instead of requiring de novo appeals heard by judicial referees under the current system.

In an upcoming issue of Bar News, the PCC’s proposal will be described in more detail, or visit www.courts.state.nh.us and click on the "What’s New" link to find the announcement of the Rules Committee agenda and the supporting appendices containing the PCC proposal and other possible rules changes.

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