Bar News - January 5, 2007
Panel Considers Ethics Rules, Limits on Retired Judges
By: Dan Wise
At its twice-yearly public hearing on Dec. 13, 2006, the NH Supreme Court Advisory Committee on Rules heard testimony on a handful of proposals it may recommend to the NH Supreme Court for adoption.
Among the proposals was the comprehensive rewrite of the NH Rules of Professional Conduct which was submitted to the Rules Committee last February by the NHBA Ethics Committee.
Also drawing attention were proposed restrictions on the post-retirement activities of state judges providing private mediation services.
While only two persons—NH Attorney General Kelly Ayotte and Keene attorney John Norton, chair of the NHBA Pro Bono Referral Governing Board—testified on proposals regarding revisions to the Rules of Professional Conduct, the lawyers’ ethics code overhaul was the subject of a number of written comments.
Supreme Court Justice Linda Dalianis, chair of the Rules Committee, said that due to the volume of comments, a subcommittee would look more closely at elements of the RPC proposal that might merit revision and report back to the Rules Committee at its next meeting in March. “This has been pending long enough that three months more shouldn’t make that much difference,” said Dalianis.
Ayotte urged the committee not to adopt a new rule that would impose additional restrictions on public comment by prosecutors or a proposal that would give defense attorneys greater latitude to respond to comments made by “third parties” that were detrimental to defendants.
Norton urged the committee to adopt the Pro Bono Board’s proposed language for Rule 6.1 that would set a specific “aspirational” standard of “at least 50 hours of pro bono publico services per year.” The Pro Bono Board’s language is the same as that of the ABA Model Rule 6.1, but the Ethics Committee’s submission to the Court did not have a specific numerical goal, calling instead for: “an appropriate number of hours, consistent with the lawyer’s circumstances…”
Norton said the legal community should be justifiably proud that New Hampshire is considered a leader nationally in the quality of and participation in its pro bono programs, and that using the less-specific language proposed by the Ethics Committee would represent a retreat from that standard of excellence.
The Ethics Committee embarked on a review and updating of the ethics code for NH lawyers starting in the fall of 2001. The Court’s Rules Committee sought the Ethics Committee’s help in revising the code in light of the ABA’s Ethics 2000 Commission, which had undertaken a similar updating of the ABA’s Model Rules of Professional Conduct.
A proposed amendment to the Code of Judicial Conduct concerning the activities of retired judges drew the most testimony at the public hearing. Under consideration were options for amending Supreme Court Rule 38 to ban or restrict the participation of retired judges in private mediation. One proposal, criticized by all three witnesses, would impose an outright ban on a retired judge conducting private mediation for a fee if that judge was on “senior” status and was still hearing cases as a substitute judge. Two other proposals would impose different levels of restrictions to, as Superior Court Chief Justice Robert Lynn put it, “prohibit trading on a [judge’s] reputation” in advertising mediation services. (This topic will be covered in a future issue of Bar News.)
No oral testimony was made on the report of the NH Supreme Court Task Force on Public Access to Court Records, which, in large part, followed a national model in proposing ground rules for providing access to court records. However, these proposed rules cannot be implemented until the court system completes its conversion to an electronic case-management system, a multi-year process that is already underway.
There were no comments made at the hearing, either on provisions relating to monetary sanctions in attorney discipline proceedings or the adoption of new standards for joinder and severance of criminal cases in the district and superior courts.