Bar News - November 17, 2006
Rules Committee To Re-Hear Comments on New Ethics Code
By: Dan Wise
The NH Supreme Court Advisory Committee on Rules has reopened the comment period on the proposed revision of the NH Rules of Professional Conduct (RPC). The Committee will take comments on the proposal, as well as on other rule changes under consideration for recommendation to the Supreme Court, on Dec. 13 at 1:00 p.m.
The Rules Committee received a number of comments during a preliminary comment period ending Sept. 1. In announcing the Dec. 13 hearing, the rules panel said it was reposting the RPC proposal—without changes—for comment again. Those who filed comments over the summer are not required to re-file comments. The Rules Committee will then consider all of the input it receives before issuing its own version of the RPC for the Supreme Court to consider. (The Court is likely to have its own comment period before adopting a new set of rules.)
At its Dec. 13 hearing, the Rules Committee will also accept comments on several other significant rule changes, including a comprehensive rewrite of the judicial branch’s policies governing public access to court records. (See order on page 34).
The RPC proposal was drafted by the Ethics Committee at the request of Rules Advisory Committee Chair, Supreme Court Justice Linda S. Dalianis. It is intended to update New Hampshire lawyers’ rules of the road, codify case law affecting the lawyers’ conduct and obligations, and incorporate, as warranted, changes proposed by the ABA’s Model Rules of Professional Conduct based on the work of its Ethics 2000 Commission.
During the summer, the Bar News published several articles on lawyers’ comments on the rules changes. Some of the written comments received by the Rules Committee by the Sept. 1 deadline were not covered in those articles. Those comments are excerpted here:
Lawyer-officials and appointing powers
Martin Gross, of the Sulloway & Hollis law firm and a former mayor and city councilor in Concord, took issue with the proposed revision of paragraph (c) of Rule 1.11A, regulating the conduct of lawyer-officials, which he said was unique to New Hampshire. He is concerned about restrictions the new rule would impose on lawyers participating in public life. “I believe the second sentence of the proposed revision goes too far in requiring the lawyer-official to refrain from participating in the process of appointing members of a ‘related body,’ as a precondition to permitting a lawyer-official’s firm colleagues to appear before that body. In effect,” Gross wrote, “this would have meant that I, when I was mayor of Concord, would have had to disqualify myself from appointing members of any city board or agency which members of my firm might have business with on behalf of clients, or as a member of the city council, to refrain from voting to confirm members of any such body.”
“I question why there is any appearance of impropriety for members of a lawyer-officials’ firm to appear before a ‘related’ board or agency simply because the lawyer-official may have had some role in the appointment of members of a related body,” he wrote, adding: “As another example, what if a lawyer who is a member of a law firm were to be elected governor—would he or she have to refrain from appointing judges, in order to permit firm members to appear before such judges?”
A provision in the rule that allows exceptions to the rule if “all relevant parties give their informed consent” was criticized as providing only “illusory” protection from objections being raised.
Collection of ‘flat fees’
Donald P. LoCascio, of West Lebanon, a small-firm attorney who has been practicing for 25 years, urged the Rules Committee to reconsider the revision of Rule 1.15 (d) which 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.” LoCascio says he frequently relies on flat fees, paid in advance, for criminal and divorce cases and bankruptcy cases, and, at the outset, informs clients that the fee is “not refundable.” Due to his years of experience and his concern for the ability of his clients to afford his services, he feels comfortable charging flat fees. “I have used this system over the past six or so years, and no problems have arisen. If I spend a great deal more time on the case than a regular hourly fee of $150 to $200 per hour would indicate, the client is protected with my flat fee… In those cases on which I spend less than the ‘normal’ hourly rate would dictate, it is because I have reached a favorable settlement much to my client’s liking…Sometimes I spend a great deal more time on cases than the fee would cover and sometimes less. I am satisfied because I have been paid in full at the beginning of the case and my clients know I have worked very hard for them.”
The NH Criminal Defense Lawyers Association has also protested this change, saying that many criminal defense practitioners rely on fees paid in advance, and that barring them from drawing on the fees only after they are “earned” would impose unnecessary bookkeeping problems.
Interviewing witnesses of represented corporations
Both the NH Trial Lawyers Association and the National Employment Lawyers Association of New Hampshire (NELA) filed comments opposing changes to Comments on Rule 4.2 that would eliminate language in the New Hampshire version of the rule that specifically allows plaintiff’s attorneys to interview some witnesses who are employees of a corporation represented by counsel in a potential civil or criminal matter. Both organizations pleaded with the Rules Committee to not change the Comment to emulate other jurisdictions.
In its letter, NELA said New Hampshire’s current language “makes it clear that a plaintiff’s attorney can contact all employees of a represented company except the person directing the corporation’s response to the litigation and the persons in charge of the company, a/k/a “managing agents.” On behalf of NELA, attorneys Nancy Richards-Stower, founder, and Lauren Simon Irwin, NH NELA President, concluded that the rule change would lead to discovery battles as defense attorneys would seek to protect most employees of a defendant company from being interviewed.
“Courts interpreting the rule in other states…have injected uncertainty into [Rule 4.2’s] application by deeming certain corporate employees to be represented by the corporation’s attorney for purposes of Rule 4.2, even when there is no actual attorney-client relationship between the employee and the attorney,” wrote Heather M. Burns, president of the NH Trial Lawyers Association.
Trial publicity and responsibilities of prosecutors
Kelly Ayotte, NH Attorney General, filed comments regarding proposed changes to Rule 3.6 (Trial Publicity) and Rule 3.8(e), regarding subpoenas of attorneys in criminal matters. Ayotte’s five-page letter details why her office believes that proposed changes to those rules would put prosecutors at a disadvantage and lead to prejudicial publicity regarding criminal cases.
“Several changes to Rule 3.6 would have a direct negative effect on existing practice,” Ayotte wrote. “proposed Rule 3.6(c) has the most wide-reaching negative ramifications of any of the amendments to the rule. The proposed Rule 3.6(c) would permit attorneys to respond to perceived negative comments in the press about their case. The new rule would virtually eliminate all restrictions on public comment and would open the door to a war of words in the press. Most significantly, the proposed rule is not limited to responding to public comments made by the opposing lawyer or opposing party. The ABA comments specifically note that public comments can be made in response to public statements made by ‘third persons.’ Any time the media coverage is viewed as detrimental to a lawyer’s case, the lawyer would be free to make public comments.”
On the other hand, Ayotte said that in the criminal context, the rule change would produce an entirely “one-sided” situation since another rule specifically binds prosecutors’ ability to make comments.
Proposed changes to Rule 3.8 (e) regarding subpoenas of attorneys. Ayotte said that lawyer subpoenas are “rare” in New Hampshire and that “there is no evidence that the practice has been the subject of abuse.” Not only is a change in the rules not needed, but Ayotte said that “placing ethical restrictions on a prosecutor’s ability to subpoena a lawyer may have separation of powers implications when the prosecutor is acting as the legal counsel to the grand jury.”
Rule 6.1 – Pro Bono service
John Lassey, of the Wadleigh, Starr & Peters law firm in Manchester submitted comments critical of two options for changing the RPC pro bono rule to specify specifically to provide legal representation to indigent clients (one version proposes an aspirational goal of 40 hours per year.) Lassey defended the RPC’s current language in Rule 6.1 which, he wrote, “recognizes that legal service is legal service, whether it involves serving an indigent criminal defendant or one’s own town or civic organization,” adding that he serves as chair of his town zoning board, town moderator, and participates on a state commission and on a Bar committee, and participates as a Rule 170 mediator. “All of these pursuits draw upon my legal education and experience and, in my view, are “activities for improving the law, the legal profession, or [the provision] of professional legal services at no free or substantially reduced fee to public service or charitable groups,” – using the language of the current Rule 6.1.
“Under the proposed rule, I and others similarly situated would be expected to devote most of our community service time to representing indigent clients or organizations which serve such folks, and since many of us have little or no talent in the areas in which indigent people are likely to need representation, we will probably take far more time than would others in performing such services. “
“I agree with Chief Justice Broderick that there is a need for legal representation for people with little or no income... But isn’t this a societal problem? Why should lawyers be singled out to shoulder the burden, especially in a state like New Hampshire which depends so heavily on the contribution of time from unpaid volunteers? Lawyers can only be spread so thin.”
Lassey’s letter also expressed support for alternative 2 of a proposed Rule 1.5 (f) that would allow so-called “naked referral fees” since such a rule change would encourage lawyers to refer cases which do not fall into their areas of expertise.
Allowing corporate counsel to do pro bono
The Association of Corporate Counsel (ACC), a national group representing the interests of 20,000 in-house corporate attorneys nationwide, weighed in on the RPC proposal, supporting a Rule 5.5 recommendation to provide safe harbor for corporate attorneys from other jurisdictions providing services to their clients in New Hampshire without establishing a practice here, but also to raise an issue not addressed in the Ethics Committee proposal.
“We urge you to codify a [multi-jurisdictional practice’ system that contains explicit commentary or regulatory language certifying that corporate counsel working in New Hampshire may engage in pro bono legal services,” wrote Susan Hackett, ACC senior vice president and general counsel. “It is…worth noting that local legal services organizations especially solicit corporate legal involvement in their efforts: when corporate counsel volunteer, they often bring with them access to corporate funding of programs and the outside counsel community who will begin to understand that their increased pro bono involvement could actually be good for their business! Everyone wins.”
Hackett suggested that, to allay concerns of opening up pro bono to attorneys not licensed within the state, that pro bono services could be provided by in-house counsel “in connection with a state or locally licensed pro bono/legal services provider.”
Visit Legal Links at www.nhbar.org for copies of the RPC proposal and for additional commentary.