Bar News - February 22, 2013
Court Responds to ABA Report
By: Dan Wise
After a year of review, the NH Supreme Court said it will pursue several of the changes to the attorney discipline process that were recommended by an ABA committee that the Court asked to study the state’s system.
While most of the proposed changes are procedural and will have little impact on attorneys not involved in the disciplinary system, one change the Court seeks will affect many attorneys: a requirement that all client trust accounts must be set up to provide automatic notification of overdrafts to the NH Attorney Discipline Office. While other states have such rules in place, overdraft reporting to disciplinary agencies is something that the New Hampshire banking community will have to implement.
The Court reported its conclusions in a letter by Associate Justice Carol Ann Conboy sent earlier this month to NH Bar President Larry Vogelman, Immediate Past President Jennifer Parent, PCC Chair David Rothstein, and Thomas Trevethick, general counsel of the Attorney Discipline Office. The Court is asking its Advisory Committee on Rules to either act on recommendations or to study the feasibility of revising or writing new rules.
The Court adopted only a few of the recommendations in the ABA report, saying the attorney discipline system is, for the most part, working well. Some changes the court said had merit were not recommended, because they would require increasing the annual assessment attorneys pay to finance the discipline system. Conboy wrote that the Court’s review reflected that "the court was sensitive to the need to avoid changes that would result in a significant increase in the PCC assessment, which currently is among the highest in the country." The Court also is interested in two procedural changes that were not in the ABA report.
The Court had asked the ABA’s Standing Committee on Professional Discipline to review the state’ disciplinary process two years ago. A small team of ABA volunteers visited the state in the summer of 2011 and issued its report several months later. Then the Court asked the Professional Conduct Committee, the staff of the Attorney Discipline Office, and the NH Bar Association to review the recommendations and provide input to the Court. Starting in January 2012, an ad hoc task force of Bar leaders and attorneys who have represented respondents before the PCC reviewed the recommendations. The Bar’s review process also included soliciting member input through several channels, including an online survey and collecting comments from members at the Midyear Meeting and on the Bar’s website. To assist Bar members, then-Vice President Jaye Rancourt, a member of the PCC, summarized the 73-page ABA report and provided an outline of the recommendations in the report, paired with current practices.
Bar leaders and Bar members, in their responses, were especially concerned by two ABA recommendations – eliminating the statute of limitations on complaints against attorneys, and allowing anyone, not just parties to a case, to file a complaint. The Court said it did not agree with those recommendations.
Recommendations for more extensive and formal training of volunteers in the attorney discipline process, the hiring of an investigator, and for upgrading office technology to improve efficiency, were among changes that the Court said it favored, but directed the Attorney Discipline Office to implement only if possible through reallocations within its current budget.
The Court also is proposing two procedural modifications in the disciplinary process that were not in the ABA’s report. The Court has asked the Rules Advisory Committee to formulate a rule that would authorize the PCC or the Court to order a respondent to forfeit legal fees or pay restitution as a misconduct sanction. Second, the Court is interested in providing a role for disciplinary counsel to participate in appellate argument for serious misconduct cases where the disciplinary counsel’s position is at odds with the recommendation of the PCC.
Conboy, writing on behalf of the entire Supreme Court, said recommendations for changes to Supreme Court Rules 37 and 37-a are being referred to the Supreme Court Advisory Committee on Rules, either for action or for consideration.
The Court has asked the Rules Committee to do the following:
The Court seeks further review by the Committee on:
- Give ADO counsel the authority to issue subpoenas during investigations.
- Clarify Rules 37 and 37-a to provide that the Professional Conduct Committee uphold hearing panel findings of fact unless they are "clearly erroneous." Currently, both hearings panels and the PCC must determine whether evidence of rule violations is clear and convincing. The Court says the rules do not detail the standard PCC uses in reviewing hearing panel decisions.
- Amend 37a to eliminate the requirement that letters to grievants who complained about individuals not subject to the Rules of Professional Conduct be retained in the ADO’s files for public inspection.
- Create overdraft notification rule.
- Amend 37 (9) to provide that any attorney convicted of a serious crime is subject to immediate summary suspension. Under current practice, suspension typically does not occur until after sentencing.
- Rules regarding confidentiality of information, the Court agreed with the ABA review team that the current rules are too complex. The Court asked the Rules Committee to create a subcommittee to address this.
- Eliminating the option for a respondent attorney to request to resign while under disciplinary investigation, and instead adopt a procedure for consent to disbarment.
- A rule to provide for interim suspension for substantial threat of serious harm. Current language provides for suspension "for protection of the public and the preservation of the integrity of the legal profession."