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Bar News - November 19, 2014


NH Supreme Court Advisory Committee on Rules Public Hearing Notice

The New Hampshire Supreme Court Advisory Committee on Rules will hold a PUBLIC HEARING at 12:30 p.m. on Friday, December 12, 2014, at the Supreme Court Building on Charles Doe Drive in Concord, to receive the views of any member of the public, the bench, or the bar on court rules changes which the Committee is considering for possible recommendation to the Supreme Court.

Comments on any of the court rules proposals which the Committee is considering for possible recommendation to the Supreme Court may be submitted in writing to the secretary of the Committee at any time on or before December 12, 2014 or may be submitted at the hearing on December 12, 2014. Comments may be e-mailed to the Committee on or before December 12, 2014, at rulescomment@courts.state.nh.us.

Comments may also be mailed or delivered to the Committee at the following address:

N.H. Supreme Court
Advisory Committee on Rules
1 Charles Doe Drive
Concord, NH 03301

Any suggestions for rules changes other than those set forth below may be submitted in writing to the secretary of the Committee for consideration by the Committee in the future.

Copies of the specific changes being considered by the Committee are available on request to the secretary of the Committee at:

N.H. Supreme Court
1 Charles Doe Drive
Concord, NH 03301
Telephone 271-2646

In addition, the changes being considered are available on the Internet (in the Appendix to the Public Hearing Notice).

The changes being considered concern the following rules:

I. Rules of Professional Conduct: ABA 20/20 Initiative

(The proposed amendments to the New Hampshire Rules of Professional Conduct are recommended by the New Hampshire Bar Association Ethics Committee (“Ethics Committee”). The proposed amendments were prompted by the Ethics Committee’s review of recent changes made to the American Bar Association (“ABA”) Model Rules of Professional Conduct and accompanying comments in light of advances in technology and global legal practice development. The ABA reports and background materials may be found online. Although not all of the ABA updates have prompted a recommendation to amend the applicable New Hampshire rule, each New Hampshire rule potentially impacted by the ABA Model Rules of Professional Conduct updates is set forth here, along with the accompanying Ethics Committee comments and the ABA comments to the model rules. The Advisory Committee on Rules will accept comment on the proposed amendments to the New Hampshire Rules as well as the recommendation not to adopt certain amendments to the New Hampshire rules that have been made to the ABA Model Rules of Professional Conduct. The Advisory Committee on Rules does not recommend for adoption or amendment, and the Supreme Court does not adopt or amend the ABA Model Rules, ABA Comments or Ethics Committee Comments. Therefore, the Advisory Committee on Rules will not accept comment on any of these texts, which are provided below solely to help provide context to the proposed amendments. Input on the Ethics Committee Comments should be directed to the Ethics Committee.)

1. The Ethics Committee recommends amending Rule 1.0 (“Definitions”) and the ABA has amended its comment to the model rule, as set forth in Appendix A.

2. The ABA has not amended Model Rule 1.1 (“Competence”), and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 1.1(“Competence”), but both have amended the accompanying comments, as set forth in Appendix B.

3. The ABA has not amended Model Rule 1.4 (“Communications”) and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 1.4 (“Client Communications”), but the ABA has amended its comment to the model rule, as set forth in Appendix C.

4. The ABA has amended Model Rule 1.6 (“Confidentiality of Information”) and the accompanying comment and the Ethics Committee recommends amendments to Rule 1.6 (“Confidentiality of Information”) and the accompanying comment, as set forth in Appendix D.

5. The ABA has not amended Model Rule 1.17 (“Sale of Law Practice”), and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 1.17 (“Sale of Law Practice”), but the ABA has amended its comment to the model rule, as set forth in Appendix E.

6. The ABA has not amended Model Rule 1.18 (“Duties to Prospective Client”), and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 1.18 (“Duties to Prospective Client”), but the ABA has amended its comment to the model rule, as set forth in Appendix F.

7. The ABA has not amended Model Rule 4.4 (“Respect for Rights of Third Persons”), and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 4.4 (“Respect for Rights of Third Persons”), but the ABA has amended its comment to the model rule and the Ethics Committee has amended its comment to the New Hampshire Rule, as set forth in Appendix G.

8. The ABA has not amended Model Rule 5.3 (“Responsibilities Regarding Nonlawyer Assistance), and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 5.3 (“Responsibilities Regarding Nonlawyer Assistance”), but the ABA has amended its comment to the model rule, as set forth in Appendix H.

9. The ABA has amended Model Rule 5.5 (“Unauthorized Practice of Law; Multijurisdictional Practice of Law”) and its comment to the model rule, and the Ethics Committee recommends amendments to Rule 5.5 (“Unauthorized Practice of Law; Multijurisdictional Practice of Law”), as set forth in Appendix I.

10. The ABA has not amended Model Rule 7.1 (“Communications Concerning a Lawyer’s Services”), and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 7.1 (“Communications Regarding a Lawyer’s Services”), but the ABA has amended its comment to the model rule, as set forth in Appendix J.

11. The ABA has not amended Model Rule 7.2 (“Advertising”), and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 7.2 (“Advertising”), but the ABA has amended its comment to the model rule, as set forth in Appendix K.

12. The ABA has amended Model Rule 7.3 (“Direct Contact With Prospective Clients”) and its comment to the model rule, but the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 7.3 (“Direct Contact with Prospective Clients”), as set forth in Appendix L.

13. The ABA has not amended Model Rule 8.5 (“Disciplinary Authority; Choice of Law”), and the Ethics Committee does not recommend an amendment to New Hampshire Rule of Professional Conduct 8.5 (“Disciplinary Authority; Choice of Law; Application of Rules to Nonlawyer Representatives”), but the ABA has amended its comment to the model rule, as set forth in Appendix M.

II. Supreme Court Rule 7. References to “the clerk’s written notice of the decision on the merits.”

(This proposed amendment to Supreme Court Rule 7 would clarify the time within which an appeal in a criminal or juvenile delinquency proceeding must be filed.)

1. Amend Supreme Court Rule 7, regarding appeals from trial court decisions on the merits, as set forth in Appendix N.

III. Supreme Court Rules 37 and 37A. Attorney Discipline – Warnings

(These proposed amendments would eliminate the authority of the attorney discipline office general counsel, the complaint screening committee and the professional conduct committee to issue warnings when it is determined that an attorney acted in a manner which did not constitute a clear violation of the rules of professional conduct but which involved behavior requiring attention).

1. Amend Supreme Court Rule 37, regarding the attorney discipline system, as set forth in Appendix O.

2. Amend Supreme Court Rule 37A, regarding the rules and procedures of the attorney discipline system, as set forth in Appendix P.

IV. Superior Court (Civ.) Rule 26 Depositions: Notice or Subpoena Directed to an Organization

(This proposed amendment would amend Rule 26 of the Rules of the Superior Court of the State of New Hampshire Applicable in Civil Actions to add a provision as subsection (m) which would allow a party to name as a deponent a public or private corporation, a partnership, an association, a governmental agency, and require the named organization to designate one or more officers, directors, managing agents or other persons who consent to testify on its behalf. An additional proposed amendment would amend Rule 26(f) to change the rule regarding altering a deposition transcript with respect to Rule 26(m) depositions).

1. Amend Rule 26 of the Rules of the Superior Court of the State of New Hampshire Applicable in Civil Actions, as set forth in Appendix Q.

V. Supreme Court Rule 47. Counsel Fees and Expenses-Indigent Criminal Cases

(This proposed amendment would raise the hourly rate for assigned counsel working on major crimes cases to $100 per hour).

1. Amend Supreme Court Rule 47, as set forth in Appendix R.

VI. Supreme Court Rule 12. Confidentiality of a Case Record or Portion of a Case Record in a Supreme Court Case.

(These amendments would clarify that a trial court’s ruling on confidentiality will presumptively apply on appeal, but that the supreme court may determine on its own motion, or upon motion of the party that that there is no statute, administrative or court rule, or other compelling interest that requires that the case record or portion of the case record be kept confidential).

1. Amend Supreme Court Rule 12(2) regarding the procedure for requesting confidentiality of a case record or a portion of a case record in a supreme court case, and 12(3), regarding the procedure for seeking access to case records that have been determined to be confidential, as set forth in Appendix S.

New Hampshire Supreme Court Advisory Committee on Rules
By Robert J. Lynn, Chairperson and Carolyn A. Koegler, Secretary
October 24, 2014

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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