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Bar News - October 15, 2010


NH Supreme Court Orders

The Supreme Court of New Hampshire, pursuant to Supreme Court Rule 51B(1)(c), hereby appoints Karen Anderson to the Advisory Committee on Rules.

September 9, 2010
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire


Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51(A)(7), the Supreme Court of New Hampshire adopts the following technical amendments to court rules.

I. Law School Name Change

(These amendments update court rules that refer to Franklin Pierce Law Center so as to reflect the Law Center’s new name – the University of New Hampshire School of Law.)

1. Amend Supreme Court Rule 42(13)(a), regarding bar admissions and the Daniel Webster Scholar Honors Program, as set forth in Appendix A.

2. Amend Supreme Court Rule 58.3(C)(10), regarding the director of the Lawyers Assistance Program, as set forth in Appendix B.

II. Advisory Rules Committee – Membership

(This amendment provides that a retired judge, master or administrator may serve as a member of the Supreme Court Advisory Committee on Rules.)

1. Amend Supreme Court Rule 51B(1), regarding membership of the Advisory Committee on Rules, as set forth in Appendix C.

Effective Date

These amendments shall take effect immediately.

Date: September 10, 2010
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire

APPENDIX A
Amend Supreme Court Rule 42(13)(a) as follows (additions are in [bold and brackets]; deletions are in strike-thru format):

(a) Have, prior to admission, and within one year of the date upon which the application for admission is filed, successfully completed, to the satisfaction of the board of bar examiners, the Daniel Webster Scholar Honors Program offered at the Franklin Pierce Law Center [University of New Hampshire School of Law] in Concord, New Hampshire, and been certified by the board of bar examiners as satisfying this requirement;

APPENDIX B
Amend Supreme Court Rule 58.3(C)(10) as follows (additions are in [bold and brackets]; deletions are in strike-thru format):

(10) With the cooperation of Franklin Pierce Law School [the University of New Hampshire School of Law], to plan and deliver educational programs and materials bringing to their curriculum a substance abuse component informing students of the nature and effect of substance abuse, its risks to those in the legal profession, and the resources available through LAP;

APPENDIX C
Amend Supreme Court Rule 51B(1) as follows (additions are in [bold and brackets]; deletions are in strike-thru format):

(1) There shall be an Advisory Committee on Rules, which shall be composed of sixteen members as follows:

(a) One [active or retired] judge from each of the following courts shall be appointed by the supreme court: district court, probate court, superior court, and supreme court.

(b) Two attorneys shall be appointed by the supreme court.

(c) Three lay persons shall be appointed by the supreme court.

(d) One member shall be appointed by the Governor.

(e) One member of the senate shall be appointed by the president of the senate.

(f) One member of the house shall be appointed by the speaker of the house.

(g) One clerk of court shall be appointed by the supreme court.

(h) One member of the New Hampshire Bar Association Board of Governors and one member of the Committee on Cooperation with the Courts shall be appointed by the president of the New Hampshire Bar Association.

(i) One [active or retired] judge, master, or administrator from the family division shall be appointed by the supreme court.


LD-2010-0003
In the Matter of Brian Joseph Archambault

On June 28, 2010, the Attorney Discipline Office filed a certified copy of the June 15, 2010 order of the Massachusetts Supreme Judicial Court for Suffolk County, disbarring Attorney Brian J. Archambault. The discipline was based upon Attorney Archambault’s plea of guilty in Newburyport District Court to five counts of larceny over $250.00.

In accordance with Supreme Court Rule 37(12)(b), this court ordered that a copy of the Massachusetts disciplinary order be served on Attorney Archambault. It further ordered that Attorney Archambault and the Professional Conduct Committee (PCC) inform the court if either contended that the imposition of identical or substantially similar discipline would be unwarranted. The PCC filed a response recommending that Attorney Archambault be disbarred. Attorney Archambault filed no response.

Rule 37(12)(d) provides for the imposition of reciprocal discipline by the court unless the respondent attorney or the PCC demonstrates, or the court finds, based on the face of the record from which the discipline is predicated, that: (1) the procedure followed by the jurisdiction imposing discipline was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) the imposition of the same or substantially similar discipline by the court would result in grave injustice; or (3) the misconduct established warrants substantially different discipline in New Hampshire.

Having reviewed the order of the Massachusetts Supreme Judicial Court for Suffolk County, the court does not find that any of these conditions have been met. It appears from the material filed that Attorney Archambault had an opportunity to be heard in the Massachusetts disciplinary proceedings. In light of the seriousness of Attorney Archambault’s misconduct, the court does not find that disbarment would result in grave injustice or that his misconduct would warrant substantially different discipline in New Hampshire.

Therefore, the court orders that Brian J. Archambault be disbarred from the practice of law in New Hampshire. Attorney Archambault is hereby assessed all expenses incurred by the Professional Conduct Committee in the investigation and prosecution of this matter. See Rule 37(19).

Broderick, C.J., and Dalianis, Duggan, Hicks and Conboy, JJ., concurred.
DATE: September 16, 2010
ATTEST: Eileen Fox, Clerk


LD-2010-0007
In the Matter of Lenora E. Boehm

The court on September 17, 2010, issued the following order:

Lenora E. Boehm’s expedited motion for reinstatement is granted. Lenora E. Boehm is reinstated to the practice of law in New Hampshire, effective immediately.

Dalianis, Duggan, Hicks and Conboy, JJ., concurred.
Eileen Fox, Clerk


R-2010-0001
In re 2010 Annual Report of the Advisory Committee on Rules
(Part I) – Proposed Adoption of New Superior Court Rules; Proposed Adoption of New Rules of Criminal Procedure; and Proposed Adoption of New Code of Judicial Conduct

The New Hampshire Supreme Court Advisory Committee on Rules (committee) has reported a number of proposed rule amendments to the New Hampshire Supreme Court with a recommendation that they be adopted. The court has opened two dockets to solicit public comment on the proposed rules. In this docket, the court is considering the committee’s recommendations that the court adopt new superior court rules to completely replace the existing superior court rules, that the court adopt a new unified set of rules of criminal procedure that would govern the handling of criminal cases in the superior and district courts, and that the court replace the existing Code of Judicial Conduct (Supreme Court Rule 38) with a new version which is based on the 2007 ABA Model Code of Judicial Conduct.

To review and comment on the other proposals for amending court rules, please see docket no. R-2010-0002, In re 2010 Annual Report of the Advisory Committee on Rules (Part II)– Miscellaneous Rule Amendments.

The proposed rule amendments being considered in this docket are set forth below.

I. NEW SUPERIOR COURT RULES

After public hearing held in June 2010, the committee recommends adopting new Superior Court Rules as set forth in Appendix A. (See pages 4-96 below.) If adopted these rules would replace the existing Superior Court Rules.

II. NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

After public hearing held in June 2010, the committee recommends adopting new Rules of Criminal Procedure as set forth in Appendix B. (See pages 97-163 below.) The rules would govern the procedure in criminal cases pending in the superior and district courts. The committee notes that if these rules are adopted, it may be necessary to repeal certain District Court Rules governing criminal proceedings. In addition, if the proposed Superior Court Rules are not adopted, then it may also be necessary to repeal certain Superior Court Rules governing criminal proceedings.

III. CODE OF JUDICIAL CONDUCT

After public hearing held in March 2010, the committee recommends that the existing version of Supreme Court Rule 38, regarding the Code of Judicial Conduct, be replaced by the version as set forth in Appendix C. (See pages 164-200 below.)

The supreme court is soliciting public comment on the proposed rule amendments. Copies of the proposed changes are available upon request to the clerk of the supreme court at the N.H. Supreme Court Building, 1 Charles Doe Drive, Concord, New Hampshire 03301 (Tel. 603-271-2646). In addition, the proposed changes are available on the Internet at: http://www.courts.state.nh.us/index.htm.

The current rules of the New Hampshire state courts are also available on the Internet at: http://www.courts.state.nh.us/rules/index.htm.

On or before November 30, 2010, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the proposed rule amendments. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at: rulescomment@courts.state.nh.us.

September 16, 2010
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire


R-2010-0002
In re 2010 Annual Report of the Advisory Committee on Rules (Part II) – Miscellaneous Rule Amendments

The New Hampshire Supreme Court Advisory Committee on Rules (committee) has reported a number of proposed rule amendments to the New Hampshire Supreme Court with a recommendation that they be adopted. In addition, the court is considering proposed rule amendments related to the licensing of foreign legal consultants. The court has opened two dockets to solicit public comment on the proposed rules. This docket includes the miscellaneous proposed rule amendments listed below. It does not include proposals for new Superior Court Rules, for new Rules of Criminal Procedure, and for an amended Code of Judicial Conduct. To review and comment on those proposals, please see docket no. R-2010-0001, In re 2010 Annual Report of the Advisory Committee on Rules (Part I) – Proposed Adoption of New Superior Court Rules; Proposed Adoption of New Rules of Criminal Procedure; and Proposed Adoption of New Code of Judicial Conduct.

The miscellaneous proposed rule amendments being considered in this docket are set forth below.

I. MANDATORY IOLTA RULES

1. Supreme Court Rule 50, regarding trust accounts. After public hearing held in June 2010, the committee recommends amending this rule as set forth in Appendix A. (See pages 7-10 below.)

2. Supreme Court Rule 50-A, regarding certification requirement. After public hearing held in June 2010, the committee recommends amending this rule as set forth in Appendix B. (See pages 11-14 below.)

II. MEDICAL MALPRACTICE SCREENING PANEL RULES

1. Superior Court Medical Malpractice Screening Panel Rules. After public hearing held in June 2010, the committee recommends adopting new Superior Court Medical Malpractice Screening Panel Rules 1 to 13 as set forth in Appendix C. (See pages 15-17 below.)

III. WITHDRAWAL OF COUNSEL IN CRIMINAL CASES

1. Superior Court Rule ____, regarding withdrawal of counsel in criminal cases. After public hearing held in June 2010, the committee recommends adopting this new rule as set forth in Appendix D. (See page 18 below.)

2. District Court Rule 1.3 I(3), regarding withdrawal of court-appointed counsel in criminal cases. The committee recommends adopting this new subsection, which is based upon the superior court rule proposal set forth in Appendix D, as set forth in Appendix E. (See page 19 below.)

3. District Court Rule 1.3 I(4), regarding withdrawal of court-appointed counsel in delinquency and children in need of services cases. The committee recommends adopting this new subsection, which is based upon the superior court rule proposal set forth in Appendix D, as set forth in Appendix F. (See page 20 below.)

4. Family Division Rule 3.11, regarding withdrawal of court-appointed counsel. The committee recommends adopting this new rule, which is based upon the superior court rule proposal set forth in Appendix D, as set forth in Appendix G. (See page 21 below.)

IV. NOTICE OF DEPOSITIONS

1. Superior Court Rule 40, regarding notice of the taking of depositions. After public hearing held in March 2010, the committee recommends amending this rule as set forth in Appendix H. (See page 22 below.) (Note that if new Superior Court Rules being considered for adoption in docket no. R-2010-0001 are adopted, this amendment would be to new Superior Court Rule 24(c).)

2. District Court Rule 1.9 D, regarding notice of the taking of depositions.

After public hearing held in March 2010, the committee recommends amending this rule as set forth in Appendix I. (See page 23 below.)

3. Probate Court Rule 40, regarding notice of the taking of depositions. After public hearing held in March 2010, the committee recommends amending this rule as set forth in Appendix J. (See page 24 below.)

4. Family Division Rule 1.25 G, regarding notice of the taking of depositions. After public hearing held in March 2010, the committee recommends amending this rule as set forth in Appendix K. (See pages 25-26 below.)

V. FAMILY DIVISION MANDATORY DISCOVERY RULE

1. Family Division Rule 1.25-A, regarding mandatory initial self-disclosure. After public hearing held in June 2010, the committee recommends adopting this new rule as set forth in Appendix L. (See pages 27-30 below.)

VI. PLEAS BY MAIL IN DISTRICT COURT

1. District Court Rule 2.5A, regarding pleas by mail. After public hearing held in March 2010, the committee recommends amending this rule as set forth in Appendix M. (See page 31 below.)

VII. CUSTODY OF MATERIALS FILED IN CAMERA

1. Supreme Court Rule 57-A, regarding custody and return of materials filed in camera in trial courts. After public hearing held in June 2010, the committee recommends adopting this new rule as set forth in Appendix N. (See page 32 below.)

VIII. DUPLICATION OF AUDIO TAPES

1. Superior Court Rule 78-B, regarding duplication of audio tapes. After public hearing held in March 2010, the committee recommends adopting this rule, and reserving Superior Court Rule 78-A for future use, as set forth in Appendix O. (See pages 33-34 below.) (Note that if new Superior Court Rules being considered for adoption in docket no. R-2010-0001 are adopted, this rule would become new Superior Court Rule 206.)

2. Probate Court Rule 78-B, regarding duplication of audio tapes. After public hearing held in March 2010, the committee recommends amending this rule as set forth in Appendix P. (See page 35-36 below.)

IX. ADVISORY RULES COMMITTEE – MEMBERSHIP

1. Supreme Court Rule 51(B), regarding membership of the Advisory Rules Committee. After public hearing held in March 2010, the committee recommends, by a vote of 5-2 (with 2 members abstaining), adopting this rule on a permanent basis as set forth in Appendix Q. (See pages 37-38 below.)

X. TEMPORARY RULES CURRENTLY IN EFFECT

(The following rules, which have been in effect as temporary rules, are recommended for adoption on a permanent basis without any changes.)

1. Supreme Court Rule 12-A, regarding appellate mediation. After public hearing held in March 2009, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated April 30, 2009, as set forth in Appendix R. (See pages 39-41 below.)

2. Superior Court Rule 170-A(G), regarding arbitration. After public hearing held in March 2009, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated April 30, 2009, as set forth in Appendix S. (See page 42 below.)

3. District Court Rule 3.3, regarding court fees. After public hearing held in June 2010, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated December 10, 2009, as set forth in Appendix T. (See pages 43-44 below.)

4. District Court Rule 3.28, regarding district court civil writ mediation. After public hearing held in June 2010, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated December 10, 2009, as set forth in Appendix U. (See pages 45-50 below.)

5. District Court Rule 4.8, regarding service of small claims upon defendants. After public hearing held in March 2010, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated April 30, 2009, as set forth in Appendix V. (See page 51 below.)

6. District Court Rule 4.8-A, regarding prejudgment attachment procedures in small claims. After public hearing held in March 2010, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated April 30, 2009, as set forth in Appendix W. (See page 52 below.)

7. District Court Rule 4.8-B, regarding post-judgment attachment procedures in small claims. After public hearing held in March 2010, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated April 30, 2009, as set forth in Appendix X. (See page 53 below.)

8. District Court Rule 4.8-C, regarding discharge of attachments in small claims. After public hearing held in March 2010, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated April 30, 2009, as set forth in Appendix Y. (See page 54 below.)

9. District Court Rule 4.29, regarding small claims mediation. After public hearing held in June 2010, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated December 10, 2009, as set forth in Appendix Z. (See pages 55-60 below.)

10. Probate Court Rule 169, regarding court fees. After public hearing held in June 2010, the committee recommends adopting, on a permanent basis, the temporary amendments adopted by supreme court order dated December 10, 2009, as set forth in Appendix AA. (See pages 61-64 below.)

XI. FOREIGN LEGAL CONSULTANT RULES

1. Supreme Court Rule 42D, regarding licensing and practice of foreign legal consultants. After public hearing held in December 2004, the committee recommended amending an earlier version of this rule. By order dated October 13, 2005, the court solicited public comment on that proposal. That proposal was notadopted. Instead, it was amended, and the court now solicits public comment on the amended proposal as set forth in Appendix BB. (See pages 65-70 below.)

2. Supreme Court Rule 42A, regarding non-payment of bar dues. If Supreme Court Rule 42D were to be adopted, this proposed amendment would address failure to pay foreign legal consultant annual fees as set forth in Appendix CC. (See pages 71-72 below.)

3. Supreme Court Rule 50-A, regarding certification requirement. If Supreme Court Rule 42D were to be adopted, this proposed amendment would address the certification requirements for foreign legal consultants as set forth in Appendix DD. (See pages 73-76 below.)

4. Supreme Court Rule 55(1), regarding public protection fund. If Supreme Court Rule 42D were to be adopted, this proposed amendment would address application of the public protection fund to foreign legal consultants as set forth in Appendix EE. (See page 77 below.)

XII. MISCELLANEOUS RECOMMENDATIONS

The committee further voted to recommend that all court rules be made gender neutral, and that the term "pro se" be replaced in court rules by a term such as "selfrepresented" or "self-represented litigant."

The supreme court is soliciting public comment on these proposed rule amendments. Copies of the proposed changes are available upon request to the clerk of the supreme court at the N.H. Supreme Court Building, 1 Charles Doe Drive, Concord, New Hampshire 03301 (Tel. 603-271-2646). In addition, the proposed changes are available on the Internet at: http://www.courts.state.nh.us/index.htm.

The current rules of the New Hampshire state courts are also available on the Internet at: http://www.courts.state.nh.us/rules/index.htm.

On or before November 30, 2010, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the proposed rule amendments. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at: rulescomment@courts.state.nh.us.

September 16, 2010
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire


By order dated July 25, 2007, the New Hampshire Supreme Court adopted the New Hampshire Rules of Professional Conduct. The order specifically provided that only the text of the rules was being adopted – the New Hampshire Comments and ABA Comments set forth in the order were not adopted as part of the rules. By order dated June 6, 2008, the New Hampshire Comments were renamed as Ethics Committee Comments.

The court hereby gives notice that the Ethics Committee Comments to Rules 1.8 and Rule 3.3 of the New Hampshire Rules of Professional Conduct have been amended as set forth in Appendices A and B. The court reiterates that the Ethics Committee Comments have not been adopted as part of the rules.

Date: September 24, 2010
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire

APPENDIX A
Amend the Ethics Committee Comment to Professional Conduct Rule 1.8 by deleting the existing comment and substituting the following:

Ethics Committee Comment

ABA Comment 8 raises concerns, by implying that Rule 1.8(a) would be inapplicable in the situation whereby the drafting attorney is named as a fiduciary for a client in a fiduciary role that could become potentially lucrative for the attorney. New Hampshire Bar Association Ethics Committee opinion 1987-88/9 stated as follows:

When the attorney-fiduciary contracts to perform legal services, it could well be argued that the attorney-fiduciary is entering into a business transaction, or acquiring some type of pecuniary interest potentially adverse to a client thereby invoking Rule 1.8(a).

In its later Opinion 2008-09/1, "Drafting Lawyer Acting as Fiduciary for Client," applying recent Rule changes that went into effect January 1, 2008, the Committee concluded that there may well be certain circumstances, such as the drafting attorney having actively solicited the client to utilize the fiduciary services of that attorney or affiliated law firm, that wouldconstitute a "business transaction with the client" thereby triggering the necessity of that attorney having to comply with Rule 1.8(a).

APPENDIX B
Amend the Ethics Committee Comment to Professional Conduct Rule 3.3 by adding a new subsection 3, so that said comment, as amended, shall state as follows:

Ethics Committee Comment

1. New Hampshire’s Rule reverses the order of ABA Model Rules (c) and (d). This clarifies that a lawyer’s disclosure obligation during an ex parte proceeding applies even if the information provided to the tribunal would otherwise be protected by Rule 1.6.

2. See Rule 3.9 regarding nonadjudicative proceedings.

3. Rule 3.3 as revised supersedes N.H. Ethics Opinion 1995-96/5, "Presentation of False Evidence to a Tribunal by a Third Party Non-client"; see http://nhbar.org/pdfs/FO95-96-5.pdf. Revised Rule 3.3 requires disclosure of falsity in circumstances where it was not required under the prior version of the rule. See N.H. Ethics Opinion 2008-09/3, "RemedialMeasures Under Rule 3.3"; http://nhbar.org/uploads/pdf/EthicsOpinion2008-9-3.pdf.


The Supreme Court of New Hampshire, pursuant to Supreme Court Rule 51B(1)(a), hereby appoints Honorable R. Laurence Cullen, retired district court judge, to the Advisory Committee on Rules.

October 5, 2010
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire

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