Bar News - December 14, 2007
Top Ten Changes to NH’s Ethics Rules
By: Dan Wise
This version contains a revised description of Rule 1.10, correcting the language in the printed edition of the Bar News.
Starting Jan. 1, 2008, New Hampshire lawyers’ conduct will be measured by a new yardstick.
The Supreme Court order containing the rewritten New Hampshire Rules of Professional Conduct runs to 162 pages and includes extensive Comments that provide aids to interpretation. It is a top-to-bottom revision: nearly every rule has been touched to some extent. Some rule changes incorporate caselaw and better reflect the reality of law practice as it has evolved since the last comprehensive revision in 1986; some rule changes are intended to clear up confusing wording; and some new rules set a new ethical standard.
The new Rules are largely the work of the NHBA Ethics Committee, which at the behest of the Supreme Court’s Advisory Committee on Rules, embarked on the major task of looking at all of the rules in light of the ABA’s Ethics 2000 Commission, which did a similar top-to-bottom revision of the ABA Model Rules of Professional Conduct. The NHBA Rules, as it has in the past, uses the same numbering system and adopts the ABA Model Rules’ language as appropriate, but departs in a number of instances as necessary to conform to NH practice and jurisprudence.
The following is a capsule review of what Ethics Committee members and professional liability practitioners see as the more significant rule changes.
1. Rule 1.2 Scope of representation. New language makes clear that limited representation even in litigation is allowed, and provides a consent form for clients to sign. See also Rule 1.16 (e), which provides an exit for attorneys from the case once the conditions of the limited representation have been met. The Comments say that providing a secure route out of the case is unique to New Hampshire.
2. Rule 1.5 Fees. Substituting one word for two changes the standard for misconduct in overcharging clients from “clearly excessive” to “unreasonable” for fees and expenses. The Comments explaining these language changes are a mini-treatise that runs to more than 1,500 words.
3. Rule 1.5 (f) Fees [division]. The new ethics rules explicitly allow an attorney referring a case to another attorney to share fees with the lawyer to whom the case is referred, regardless of the work performed or responsibility assumed, provided that the client consents, that the fees paid are reasonable, and that the total of fees is not increased for purposes of division. This rule was the subject of much debate within the Ethics Committee, which in the end forwarded two versions of the rule regarding division of fees to the Court, which ultimately favored what some refer to as “naked referrals.”
4. Rule 1.10 Imputation of Conflicts of Interest: General Rule. Following the ABA's lead, the NH RPC creates an exception to the general conflicts rule that would allow lawyers in a firm to represent a client even though one of the lawyers may have a "personal" conflict, such as strong political beliefs. However, as noted by  of the ABA Model Rules Commaents, the exception to the conflicts rule would not apply if neither "questions of client loyalty nor protection of confidential information are presented." [This language corrects an incorrect description of the intent of this Rule that appeared in the printed edition.]
5. Rule 1.14 Client with diminished capacity. This Rule is not so much changed as it has been amplified. NH’s rule differs with its ABA Model Rule counterpart in several areas, but both the NH and ABA Comments provide helpful, practical advice on working with such clients.
6. Rule 1.15 Safekeeping Property Section (d) may be the most controversial change in this version of the RPC. It requires that “A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred [our emphasis].” This provision was opposed in particular by members of the criminal defense bar, many of whose members rely on fees paid in advance. The Comments have been expanded to provide guidance regarding the implementation of this strict standard, including the clarification of the rule as it pertains to retainers, and offers suggestions for attorneys to set up mileposts to guide their drawing from the trust account of flat or pre-paid fees, and discussion of a court ruling that nonrefundable advance fees are inherently unreasonable.
NH Comments to this Rule also provide guidance on opinions regarding the disposition of clients’ files after the conclusion of a case.
7. Rule 1.17. Sale of a law practice. A new rule governs sale of a law practice (or a portion of a practice) by a lawyer leaving legal practice or leaving the state. Again, practical information that is worth reading by any attorney contemplating an exit strategy from law practice or an area of practice.
8. Rule 1.18 Duties to prospective clients. This new rule is aimed at protecting lawyers from disqualification due to an incidental or accidental consultation with a potentially adverse party.
9. Rule 2.2 Intermediary [Repealed] and Rule 2.4 Lawyer Serving as Third-Party Neutral. Rule 2.2, which provided rules for lawyers serving multiple clients as an “intermediary” in “common representation” is repealed. Rule 2.4 sets forth how an attorney may “assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them” while clarifying that the attorney does not have an “attorney-client” relationship with either party.
10. Rule 6.1 Voluntary Pro Bono Publico Service. The new rule expands on the obligations of all attorneys to provide public service by mandating that all attorneys “should aspire” to provide at least 30 hours annually of service, with a “substantial majority” of pro bono provided as free legal services to disadvantaged or low-income persons, or to organizations serving these people.
Find Out More…
The Bar’s Web site has a “Rewriting the Rules” section (in Legal Links – Ethics Materials) with a collection of articles regarding the new rules, including specific articles on Rule 3.6 Trial Publicity, and Rule 3.8 Special Responsibilities of a Prosecutor, and other key rule changes not covered in this article.
The Web site has a rule-by-rule section with links to both the previous RPC and the ABA Model Rules. (The rule-by-rule guide on the NHBA Web site is easier to navigate than the official version of the Court’s July 25 order (which also contains other rules), a 162-page PDF.
Also, a two-hour Web cast, “Doing Good, Doing Pro Bono: The New Rule 6.1” will provide information on Rule 6.1’s new aspirational standard, including options for attorneys who, due to the nature of their practice area or place of employment, may be unable to provide direct representation.