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Bar News - November 19, 2014

Court News: Proposed Rule Change Draws National Attention


A proposed rule change that would restrict legal representation for indigent parents accused of child abuse or neglect has drawn new opposition from the American Bar Association and other organizations.

The proposed change to Rule 3.11 would conclude court-appointed legal representation for parents after an initial disposition in the case.

“The ABA respectfully opposes this proposed change because we believe that legal representation for parents after an initial disposition in abuse and neglect cases should be required as a matter of due process in view of the ongoing court intervention and monitoring of custody of children in these cases,” wrote Thomas Susman, director of ABA Governmental Affairs, in a letter to NH Supreme Court Clerk Eileen Fox. “The efficient and fair administration of justice is also best served in our view by legal representation for parents in cases in which the state has undertaken ongoing custody jurisdiction.”

Susman goes on to say that the proposed change violates the ABA’s longstanding “Juvenile Justice Standards,” which call for effective support of legal counsel in all child protective court proceedings, as well as the “Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases,” which the ABA adopted in 2006 and have since been adopted in 22 states.

In addition to the ABA and several New Hampshire attorneys, the National Coalition for a Civil Right to Counsel (NCRCC) and NH Legal Assistance also have submitted comments to the court in opposition to the change. John Pollock, coordinator of the NCRCC, wrote that in the coalition participants’ experience, “attorneys perform numerous post-dispositional services for parents, such as helping to ensure that parents understand and meet all expectations and obligations established earlier in the case by the government and the court so as to avoid a future termination of parental rights case. Although the Rules Committee meeting notes indicate the rule change was motivated by a desire to ‘set out clearly the parameters of representation,’ we believe that both courts and attorneys understand the parameters of an appointment that lasts from the beginning of child welfare proceedings against the parent to the ending of such proceedings.”

The court will continue accepting written comments on the proposed rule changes, which are detailed in the order on page 40, until and at the Dec. 12 public hearing at the NH Supreme Court building in Concord.

In rules affecting litigation, amended Supreme Court Rule 26, regarding depositions directed at an organization, would clarify the designation by the corporation or organization of one or more agents, officers or other persons to testify on its behalf. Another amendment would clarify under what circumstances a deposition transcript would be altered to correct a minor error.

A number of rule changes posted for comment at the Dec. 12 hearing concern the policies and procedures of the Attorney Discipline Office and the Professional Conduct Committee, but do not affect the substance of lawyers’ ethics rules.

Some of the rule changes resulted from a review of the state’s discipline process by an ABA committee; those recommendations were then reviewed by the Bar Association, the PCC and the staff of the ADO. Only a few of the ABA’s recommendations were considered appropriate.

Included in the rule change is a discussion of whether to have the Attorney Discipline Office continue to issue non-disciplinary “warnings” that are not considered misconduct, but which can be considered if future misconduct is found. These warnings are currently included in disciplinary actions made public by the ADO, and the public hearing may include discussion of whether to eliminate the “warning” category.

The amended rules also propose to give the ADO subpoena power.

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