Bar News - February 9, 2007
New Rules Aim to Speed Attorney Discipline
By: Dan Wise
The NH Supreme Court has adopted revisions to the rules governing the attorney discipline process to clarify the burden of proof required and give the staff attorneys in the Attorney Discipline Office the discretion to dismiss cases that are meritless or unprovable.
The rules, mostly affecting Supreme Court Rule 37, take effect March 1, and are part of a larger release of rule changes approved by the Supreme Court. See page 31 for more on the other rule changes, including:
- Revised judicial conduct rules governing private mediation activities by retired or senior status judges;
- Rules establishing the Lawyers’ Assistance Program to assist impaired lawyers, judges and law students;
- Adoption of a fast-track discovery process in superior court;
- Setting fines for late reports by guardians ad litem;
- Amended rules governing the admission to the NH Bar of graduates of foreign law schools.
Members of the Court said the Rule 37 changes were adopted to further speed the process and eliminate unnecessary delays which are frustrating and painful to respondents and complainants. At the same time, the new rules will provide recourse for dismissals by allowing complainants to seek reconsideration by the Complaint Screening Committee.
“We are trying to strike the right balance between due process and expedient handling of complaints,” said Justice Richard Galway, the Supreme Court’s liaison to the Professional Conduct Committee and Attorney Discipline Office. “We believe [these changes] will help complainants and they will help lawyers who are faced with attorney discipline charges.”
“The public is entitled to prompt resolution of their complaints,” added Galway.
“Even if your complaint is going to be dismissed, it is better for it to happen right away rather than waiting a year.” Weeding out weak cases earlier will help the Screening Committee concentrate on the complaints that have a reasonable basis for moving forward, believe Galway and Justice Linda Dalianis, chair of the Advisory Committee on Rules.
Starting in 2004, the attorney discipline process was restructured and staffing increased to speed up a process that had become seriously bogged down. The old process heavily depended on the all-volunteer Professional Conduct Committee to screen, investigate and make findings on misconduct violations. The restructuring provided added staffing and a larger role for staff attorneys in investigating and prosecuting complaints; and a trio of committees—a Complaint Screening Committee, a Hearings Committee that supplies volunteers to sit as fact-finders in hearings, and a Professional Conduct Committee with its focus narrowed to deciding on sanctions. Court officials say that over the past two years, the new system and added resources have reduced the backlog in discipline cases but it became apparent that the process remained too slow. Dalianis said that, in some cases, it was taking a year for a complaint to go from the screening committee to the hearings stage.
Members of the Court began meeting last year informally with a group of attorneys who had either served on the Professional Conduct Committee or frequently represented attorneys facing disciplinary charges to explore the reasons why. “Upon looking into it, we realized that the process was bogging down at the screening committee level,” said Justice Dalianis. “And the [Attorney Discipline] Complaint Screening committee felt that it did not have a standard by which to judge that cases could be prevented from going further.” A “clear and convincing” standard of proof for misconduct violations did exist in the caselaw, but it was not included in the rules that govern the operation of the Complaint Screening Committee.
Under the current rules, once complaints were “docketed” or formally received by the office for processing, the case could only be dismissed by the Complaint Screening Committee.
James L. DeHart, general counsel to the Attorney Discipline Office, said the staff is also working harder at the initial stages when a complaint is made to determine whether the complaint belongs in the attorney discipline process at all. He said that the ADO staff attorneys—himself, and Thomas Trevethick and Janet DeVito—are investigating complaints before they are docketed and contacting the attorneys to seek a voluntary response to complaints. DeHart said these exchanges of information can sometimes result in an earlier determination that a complaint is unfounded.
DeHart said that respondents also have the option under the new rules to waive the screening stage and have their cases sent directly to the disciplinary counsel.
DeHart said progress has been made, but that the pace of processing is slower than he believes it should be. Of a total of 113 matters acted upon in 2006, he added, 41 referrals to disciplinary counsel were made.