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Bar News - October 19, 2012


Supreme Court Orders

Pursuant to RSA 494:1, IX, the Chief Justice appoints Nina Gardner, to serve as a lay member of the Judicial Council, replacing Teresa Robinson, who has resigned. The appointment shall take effect on October 1, 2012, or upon Ms. Gardner’s retirement as Executive Director of the Judicial Council, whichever is later. Ms. Gardner is appointed to fill the remainder of a three-year term that expires on December 31, 2013.

September 6, 2012
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


In accordance with Rule 58.2(A), the Supreme Court hereby reappoints Attorney David Wolowitz and the Honorable Robert E.K. Morrill to the Lawyers Assistance Program (LAP) Commission to serve three-year terms expiring on March 1, 2015. The court also appoints Nancy Kane, RN, MS, AOCN, to the LAP Commission to serve the remainder of a term expiring on March 1, 2015. Ms. Kane is appointed to replace Anne Draper who did not seek reappointment due to other commitments.

September 18, 2012
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


This order is being issued to correct an error in the court’s order of September 18, 2012.

Pursuant to Rule 56(1)(B), the Supreme Court appoints Associate Justice Carol Ann Conboy and Court Information Officer Laura A. Kiernan to serve on the Judicial Performance Evaluation Advisory Committee.

Date: September 19, 2012
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


LD-2011-0002
In the Matter of Timothy A. O’Meara

The court on September 19, 2012, issued the following order:

On September 18, 2012, the court issued an opinion ordering that Attorney Timothy A. O’Meara be disbarred. Although the period for reconsideration has not expired and, therefore, the court’s decision is not final, the court has concluded that Attorney O’Meara should be immediately suspended from the practice of law. In accordance with Rule 37(16)(d) and (f), the court orders as follows:

1. Timothy A. O’Meara is immediately suspended from the practice of law in New Hampshire pending final resolution of this disciplinary matter. Attorney O’Meara may show cause on or before ten days from the date of service why the temporary suspension should be lifted. See Rule 37(16)(d).

2. Attorney O’Meara is enjoined from transferring, assigning, hypothecating, or in any manner disposing of or conveying any assets of clients, whether real, personal, beneficial or mixed.

3. Copies of this order shall be served on Attorney O’Meara by first class mail and by certified mail, return receipt requested. Copies shall also be sent by first class mail to Attorney O’Meara’s counsel and to the Attorney Discipline Office.

On or before September 26, 2012, the Attorney Discipline Office shall advise the court whether an attorney should be appointed in accordance with Rule 37(17) to take possession of Attorney O’Meara’s client files and trust accounts and to take such action as is necessary to protect the interest of his clients.

Dalianis, C.J., and Hicks, Conboy and Lynn, JJ., concurred.
DATE: September 19, 2012
ATTEST: Eileen Fox, Clerk


LD-2012-0005
In the Matter of David M. Wagner

A certified copy of the judgment of the United States District Court for the Eastern District of Missouri in United States v. David M. Wagner has been filed with this court. The judgment states the Attorney David M. Wagner pleaded guilty to one count of theft of government funds in violation of 18 U.S.C § 641. On July 25, 2012, the court issued an order immediately suspending Attorney Wagner from the practice of law based on its determination that the conviction constitutes a "serious crime," as defined by Supreme Court Rule 37(9)(b). The court’s order also required Attorney Wagner to show cause by August 24, 2012, why he should not be disbarred as a result of this conviction. In accordance with Rule 37(9)(d), the court’s order was mailed to Attorney Wagner at the last address that he provided to the New Hampshire Bar Association. No response to the court’s order has been received.

Considering the seriousness of the crime committed by Attorney Wagner and his failure to respond to this court’s order, the court concludes that disbarment is the appropriate discipline in this matter.

THEREFORE, in accordance with Rule 37(9)(d), the court orders that David M. Wagner be disbarred from the practice of law in New Hampshire. Attorney Wagner is hereby assessed all expenses incurred by the Professional Conduct Committee in the investigation and prosecution of this matter.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.
DATE: October 1, 2012
ATTEST: Eileen Fox, Clerk


LD-2011-0005
In the Matter of Rosemary A. Macero

By order dated July 13, 2011, the court suspended Attorney Rosemary A. Macero from the practice of law in New Hampshire for a period of one year. On August 15, 2012, Attorney Macero filed a motion for reinstatement in which she states that she has fully complied with the requirements of the suspension order, and has satisfactorily completed the Multistate Professional Responsibility Examination as required by Rule 37(14)(e). The Professional Conduct Committee has not objected to Attorney Macero’s motion for reinstatement. Accordingly, Attorney Macero’s motion for reinstatement to the practice of law in New Hampshire is granted.

Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.
DATE: October 1, 2012
ATTEST: Eileen Fox, Clerk


ADM-2012-0018
In the Matter of Ryan C. Trombly, Esquire

On April 10, 2012, Attorney Trombly was suspended from the practice of law in New Hampshire for failing to file his 2011 annual trust accounting certificate and failing to pay late fees assessed for late filing of his certificate. Attorney Trombly has now filed his 2011 annual trust accounting certificate and paid the late fees assessed. He has requested that he be reinstated to the practice of law in New Hampshire. He has also requested that the late fees assessed for late filing be waived because he did not receive the notices of late filing and the late fees would be a financial burden.

Attorney Trombly’s request for reinstatement is granted. Attorney Ryan C. Trombly is reinstated to the practice of law in New Hampshire effective immediately.

Attorney Trombly’s request for waiver of the late fees is granted.

Dalianis, C. J., Hicks, Conboy, Lynn, and Bassett, JJ., concurred.
DATE: September 27, 2012
ATTEST: Eileen Fox, Clerk


R-2012-0001
In re 2012 Annual Report of the Advisory Committee on Rules

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. On or before Wednesday, November 21, 2012, 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.

The proposed rule amendments are set forth below.

I. Procedural Rules of the Committee on Judicial Conduct

Supreme Court Rule 40. The proposed amendments to Supreme Court Rule 40 (Procedural Rules of the Committee on Judicial Conduct Conduct) were submitted to the Advisory Committee on Rules by the Judicial Conduct Committee in a series of separate proposals. Following a public hearing on all of the proposed amendments held in June 2012, the committee recommends amending this rule as set forth in Appendix A.

II. Admission to the Bar; Board of Bar Examiners; Character and Fitness Committee; Uniform Bar Examination

Supreme Court Rule 42. The proposed amendments to Supreme Court Rule 42 would make permanent temporary Supreme Court Rule 42 (adopted by this Court’s order dated April 27, 2012, effective September 1, 2012), creating an Office of Bar Admissions, clarifying the duties and responsibilities of the Board of Bar Examiners and the Character and Fitness Committee and setting forth an appellate process for applicants who have received a negative decision from the Board of Bar Examiners regarding their eligibility for admission, a request for testing accommodation and an accusation of misconduct during the bar examination. An additional proposed amendment to temporary Supreme Court Rule 42 would make New Hampshire a Uniform Bar Examination Jurisdiction. After public hearing held in June 2012, the Committee voted to recommend that the Supreme Court: (1) adopt, on a permanent basis, temporary Supreme Court Rule 42; (2) adopt the proposed amendments to Supreme Court Rule 42 to make New Hampshire a Uniform Bar Examination jurisdiction; and (3) strike the words "and coordinated" from the first sentence of the proposed amendment to Supreme Court Rule 42, VII(a) to make clear that the Board of Bar Examiners, and ultimately, the New Hampshire Supreme Court, are responsible for the administration of the bar examination.

The committee recommends adopting temporary Supreme Court Rule 42 on a permanent basis and further amending the rule as set forth in Appendix B.

III. Appellate Mediation

Supreme Court Rule 12-A. The proposed amendments to Supreme Court Rule 12-A would allow retired full-time marital masters to serve as appellate mediators and make other technical changes to the rule. Following a public hearing held in June 2012, the committee recommends amending this rule as set forth in Appendix C.

IV. Counsel in Guardianship, Involuntary Admission, and Termination of Parental Rights Cases

Supreme Court Rule 32-A. The proposed amendments to Supreme Court Rule 32-A would add cases filed under RSA 135-E and 171-B to the list of involuntary admission cases governed by Rule 32-A. Following a public hearing held in June 2012, the committee recommends amending this rule as set forth in Appendix D.

V. Representation By Non-Lawyers

Supreme Court Rule 33(2)(b), Superior Court Rule 14(c), Circuit Court – District Division Rule 1.3(D)(1), Circuit Court – Probate Division Rule 14, Circuit Court Family Division Rule 1.18. The proposed amendments would require non-lawyer advocates to disclose cases in 3which their appearance has been disallowed or revoked. The committee did not hold a public hearing on this proposal. The committee recommends amending the rules as set forth in Appendices E, F, G, H and I.

VI. Technical Amendments

Throughout the year, the Committee voted to recommend certain proposed technical amendments to court rules without holding public hearings on the proposals.

A. Public Protection Fund. Supreme Court Rule 55. The proposed amendment to Supreme Court Rule 55 would make the Bar Association Annual Report to the Supreme Court, regarding the claims made and paid during the year and about the condition of the public protection fund in general, available to the public. The committee recommends amending this rule as set forth in Appendix J.

B. Briefs. Supreme Court Rule 16(3)(i). The proposed amendment would clarify that an appealing party must include a copy of the decision being appealed in its brief, and not in a separate appendix. The committee recommends amending this rule as set forth in Appendix K.

C. Rule-Making Procedures. Supreme Court Rule 51. The proposed amendments to Supreme Court Rule 51 would amend Supreme Court Rules 51(2)(f) and 51(3)(a) to require that the Advisory Committee on Rules submit a final draft of any proposed rules or amendments with the Clerk of Court on or before August 1, rather than on or before June 1.

The committee recommends amending this rule as set forth in Appendix L.

VII. Temporary Rules Currently In Effect

Throughout the year, the Supreme Court adopted a number of rules and rule amendments on a temporary basis and referred those 4rules and rule amendments to the committee for its recommendation as to whether they should be adopted on a permanent basis.

A. Administrative Judges and Administrative Council. Supreme Court Rule 54. The committee did not hold a public hearing on this matter. The committee recommends the adoption on a permanent basis of the temporary rule adopted by Supreme Court Order dated May 23, 2011 and amended by Supreme Court Order dated June 21, 2011 as set forth in Appendix M.

B. Minimum Continuing Legal Education. Supreme Court Rule 53.2. Temporary amendments to this rule adopted by Supreme Court Order dated July 6, 2012 add part-time judges to those exempted from the requirements of Rule 53.1, provided that the judge is not engaged in the practice of law. Those judges would remain subject to the continuing legal education requirements of Supreme Court Rule 45. After public hearing held in December 2011, the committee recommends amending this rule on a permanent basis as set forth in Appendix N.

C. Circuit Court Judicial Certification. Supreme Court Rule 61. This rule was adopted on a temporary basis by Supreme Court Order dated September 13, 2011 in response to legislation requiring that there be a certification process for Circuit Court judges to be authorized to sit and hear cases. After the public hearing held in December 2011, the Committee recommends the adoption of temporary Supreme Court Rule 61 on a permanent basis as set forth in Appendix O.

D. Parental Notification Rules. Superior Court Rules 215-222, Supreme Court Rule 7, Supreme Court Rule 7-B, Supreme Court Rule 32-B, Supreme Court Rule 48, Supreme Court Rule 48-A. These temporary rules and rule amendments were adopted by Supreme Court Order dated December 30, 2011 in response to the Parental Notification Law. The temporary rule and rule amendments relate to the filing of a petition for waiver of parental notice prior to abortion in Superior Court, and for the filing of an appeal if the petition is denied. Superior Court Rules 218 and 219 were further amended by Supreme Court Order dated July 17, 2012 to comply with the May 23, 2012 amendments to the Parental Notification Law. 5 After public hearing held in June 2012, the committee recommends adopting the temporary parental notification rules and rule amendments adopted by Supreme Court Order dated December 30, 2011 and subsequently amended by the Supreme Court Order dated July 17, 2012 on a permanent basis as set forth in Appendices P, Q, R, S, T and U.

E. Circuit Court Rules. Supreme Court Rule 1, Preface to Superior Court Rules, Superior Court Administrative Rules 12-19, Title of the Rules of the District Court, Circuit Court – District Division 1.1B, Title of Rules of Probate Court, Preface to Circuit Court – Probate Division Rules. Title of Rules of the Family Division, Circuit Court – Family Division Rule 1.1, N.H. Rules of Evidence 1101(a), System-Wide Guardian Ad Litem Application, Certification and Practice Rule 1.1. These temporary rule and rule amendments were adopted by Supreme Court Order dated June 21, 2011 to make current court rules applicable in proceedings in the new circuit court divisions.

The committee determined that because the changes are technical, no public hearing was required. The committee recommends that the Supreme Court adopt, on a permanent basis, the temporary rules and rule amendments, as set forth in Appendices V, W, X, Y, Z, AA, BB, CC, DD, EE, FF.

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 www.courts.state.nh.us/index.htm

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

October 3, 2012
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire

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