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Bar News - July 7, 2006


Lawyers Assistance Program: Concept Lauded, Funding Undecided

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A proposed Court rule to create a professionally staffed Lawyers Assistance Program (LAP) was discussed by the NHBA Board of Governors and also at a public hearing of the NH Supreme Court’s Advisory Committee on Rules last month.

           

In general, there was strong support expressed for the concept of creating a stable, professional program to provide assistance to impaired members of the legal profession, but there were differing ideas of how it should be funded.

           

Currently, the only support provided to attorneys and judges who are struggling with addiction or emotional issues in New Hampshire is through two all-volunteer groups, the NHBA Lawyers’ Assistance Committee and the independent Lawyers Concerned for Lawyers. Leaders of both groups say that having a paid professional director—with training and the time to devote to it —is necessary for the LAP because volunteers are approaching “burnout.” They also note that a staff director would have the resources and capability to conduct the necessary outreach required to maximize use of the program by those who need it.

           

Proposed Supreme Court Rule 57 creates a LAP to “provide immediate and continuing help to members of the legal profession,” including lawyers, judges, and law students who “are affected by any physical or mental health condition that affects their ability to practice their profession, quality of life, or study of law.” The original rules proposal called for the LAP to be funded by the Public Protection Fund (PPF) for an initial amount of $125,000 annually.

           

However, members of the BOG, David L. Jordan, chair of the Public Protection Fund Committee, and James L. DeHart, general counsel to the Attorney Discipline Office, have expressed concerns about the method of funding. Jordan, in testimony before the Rules Committee, said the PPF Committee “is vigorously opposed” to using the PPF as a funding mechanism for the LAP, and DeHart, also speaking on behalf of the Character & Fitness Committee, also opposed the use of the PPF for this purpose, and said he favored a separate assessment. Jordan said Supreme Court Rule 55, creating the PPF, is explicit in setting forth the purpose to which the PPF is to be used—the compensation of victims who have lost money or property due to theft or other misconduct by a New Hampshire attorney.

           

Members of the Board of Governors, after much discussion, voted at their June 15 meeting, to endorse the LAP concept but to make no comment on the method of funding, given their concerns about tapping the PPF fund or the disciplinary assessment for a worthy but not directly related purpose.

           

At the BOG meeting, no consensus was reached; members made several suggestions—including funding through the disciplinary assessment and fundraising, as well as the original concept of using the PPF as an initial source of funding. Although Board members expressed concerns about the PPF as the source of funding, it was noted that statistics show this type of program would provide proactive public protection as attorney impairment is frequently seen as a predecessor to misconduct.

           

After a public hearing on June 21, at which several speakers discussed how LAP programs operate in neighboring Maine and Massachusetts, the Rules Advisory Committee voted to approve a revised version of Rule 57, but not to recommend a funding vehicle, according to David Peck, the secretary for the committee.

           

The LAP proposal resulted from a year’s study by a committee led by Probate Court Administrative Justice John Maher, and followed an examination of efforts to assist impaired members of the profession in NH by an audit team from the ABA’s Commission on Lawyers’ Assistance Programs. The audit team noted that New Hampshire is one of only a handful of states that do not support a professional lawyer assistance effort.

           

Several witnesses at the Rules Committee public hearing spoke about the successful, recent rollout of a professional lawyers’ assistance program in Maine. Maine Supreme Court Justice Robert Clifford, judicial liaison to the program, said there has been a decrease in attorney discipline complaints and malpractice complaints since Maine hired a full-time executive director for its program two years ago.

           

Peck said that the Rules Committee’s action on Rule 57 is contained in its Annual Report, which has been sent to the Court. Typically, Peck said, the Court reviews the report and by late summer begins putting out proposed rules for public comment.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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