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Bar News - December 16, 2015


Supreme Court Orders

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

I. APPEALS IN CRIMINAL OR JUVENILE DELINQUENCY PROCEEDINGS

(These amendments confirm the time within which an appeal in a criminal or juvenile delinquency proceeding must be filed.)

1. Amend Supreme Court Rule 7, as set forth in Appendix A.

II. CONFIDENTIALITY OF A CASE RECORD OR A PORTION OF A CASE RECORD IN A SUPREME COURT CASE

(These amendments clarify that a ruling by a trial court, administrative agency or other tribunal 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 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, as set forth in Appendix B.

III. COPY OF OPINION; NON-PRECEDENTIAL STATUS OF ORDERS

(These amendments allow litigants to cite and discuss unpublished opinions, but also provide that they do not constitute binding precedent.)

1. Amend Supreme Court Rule 12-D, as set forth in Appendix C.

2. Amend Supreme Court Rule 16(9), as set forth in Appendix D.

3. Amend Supreme Court Rule 20, as set forth in Appendix E.

IV. PARTIES’ DESIGNATION

(These amendments make clear that in cases in which a statute or a rule of court requires that the name of a party be kept confidential, only the first letter of the forename and the first letter of the surname of that party shall be listed.)

1. Amend Supreme Court Rule 28, as set forth in Appendix F.

V. PROCEDURAL RULES OF THE COMMITTEE ON JUDICIAL CONDUCT-DISPOSITIONS FOLLOWING HEARING

(These amendments resolve an inconsistency in paragraph 12, which sets forth the procedure to be followed when the Judicial Conduct Committee determines that a judge has committed a serious violation of the Code of Judicial Conduct, and clarify two procedural issues.)

1. Amend Supreme Court Rule 40(12), as set forth in Appendix G.

2. Amend Supreme Court Rule 40(13), as set forth in Appendix H.

VI. CHARACTER AND FITNESS STANDARDS

(These amendments make technical and stylistic changes to the rule.)

1. Amend Supreme Court Rule 42B, as set forth in Appendix I.

VII. RULEMAKING PROCEDURES

(These amendments delete Supreme Court Rule 51 and replace it with a new rule. The new rule makes substantive changes to the rulemaking process.)

1. Amend Supreme Court Rule 51, as set forth in Appendix J.

VIII. DEPOSITIONS: NOTICE OR SUBPOENA DIRECTED TO AN ORGANIZATION

(This amendment would add a provision to Rule 26 of the Rules of the Superior Court of the State of New Hampshire Applicable in Civil Actions which would allow a party to name as a deponent a public or private corporation, a partnership, an association or 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.)

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 K.

IX. JUROR QUESTIONNAIRES

(These amendments update the rules to reflect the current manner in which juror questionnaires are collected and distributed.)

1. Amend Rule 61-A of the Rules of the Superior Court of the State of New Hampshire Applicable in Criminal Cases Filed in Superior Court, as set forth in Appendix L.

2. Amend Rule 38(a) of the Rules of the Superior Court of the State of New Hampshire Applicable in Civil Actions, as set forth in Appendix M.

X. FINANCIAL AFFIDAVITS IN FAMILY CASES

(This amendment clarifies that financial affidavits filed in child support cases shall be confidential to non-parties.)

1. Amend Circuit Court – Family Division Rule 2.16 as set forth in Appendix N.

XI. RULES OF PROFESSIONAL CONDUCT – ABA 20/20 INITIATIVE

(These amendments to the New Hampshire Rules of Professional Conduct were recommended by the New Hampshire Bar Association Ethics Committee. They were prompted by 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 New Hampshire Supreme Court does not adopt or amend the ABA Model Rules or ABA Comments. However, the changes to those texts that have been made by the ABA are included here to provide context to the amendments to the New Hampshire Rules. Similarly, the New Hampshire Supreme Court does not adopt or amend the Ethics Committee comments. The Ethics Committee Comments are included here to provide context to the amendments to the New Hampshire Rules.)

1. Amend the Statement of Purpose of the New Hampshire Rules of Professional Conduct, as set forth in Appendix O.

2. Amend Rule 1.0 of the New Hampshire Rules of Professional Conduct (“Definitions”) and update the ABA Model Rule Comment to reflect changes that have been made to the Model Rule Comment by the ABA, as set forth in Appendix P.

3. Update the Ethics Committee Comment and the ABA Model Rule Comment following Rule 1.1 of the New Hampshire Rules of Professional Conduct (“Competence”) to reflect changes that have been made to each, as set forth in Appendix Q.

4. Update the ABA Model Rule Comment following Rule 1.4 of the New Hampshire Rules of Professional Conduct (“Client Communications”) to reflect changes that have been made to the model rule comment by the ABA, as set forth in Appendix R.

5. Amend Rule 1.6 of the New Hampshire Rules of Professional Conduct (“Confidentiality of Information”) and update the Ethics Committee Comment and the ABA Model Rule Comment following Rule 1.6 to reflect changes that have been made to each, as set forth in Appendix S.

6. Update the ABA Model Rule comment following Rule 1.17 of the New Hampshire Rules of Professional Conduct (“Sale of Law Practice”) to reflect changes that have been made to the model rule comment by the ABA, as set forth in Appendix T.

7. Update the Ethics Committee Comment and the ABA Model Rule Comment following Rule 1.18 of the New Hampshire Rules of Professional Conduct (“Duties to Prospective Client”), as set forth in Appendix U.

8. Update the Ethics Committee Comment and the ABA Model Rule Comment following Rule 4.4 of the New Hampshire Rules of Professional Conduct (“Respect for Rights of Third Persons”), as set forth in Appendix V.

9. Update the ABA Model Rule Comment following Rule 5.3 of the New Hampshire Rules of Professional Conduct (“Responsibilities Regarding Non-Lawyer Assistance”), as set forth in Appendix W.

10. Amend Rule 5.5 of the New Hampshire Rules of Professional Conduct (“Unauthorized Practice of Law; Multijurisdictional Practice of Law”) and update the ABA Model Rule Comment following Rule 5.5 to reflect changes that have been made to the model rule comment by the ABA, as set forth in Appendix X.

11. Update the ABA Model Rule Comment following Rule 7.1 of the New Hampshire Rules of Professional Conduct (“Client Communications”) to reflect changes that have been made to the model rule comment by the ABA, as set forth in Appendix Y.

12. Update the ABA Model Rule Comment following Rule 7.2 of the New Hampshire Rules of Professional Conduct (“Advertising”) to reflect changes that have been made to the model rule comment by the ABA, as set forth in Appendix Z.

13. Update the ABA Model Rule Comment following Rule 7.3 of the New Hampshire Rules of Professional Conduct (“Direct Contact with Prospective Clients”) to reflect changes that have been made to the model rule comment by the ABA, as set forth in Appendix AA.

14. Update the ABA Model Rule Comment following Rule 8.5 of the New Hampshire Rules of Professional Conduct (“Disciplinary Authority; Choice of Law; Application of Rules to Nonlawyer Representatives”) to reflect changes that have been made to the model rule comment by the ABA, as set forth in Appendix BB.

XII. TECHNICAL AMENDMENTS

(The following amendments make technical changes to the rules).

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

2. Amend Supreme Court Rule 3, as set forth in Appendix DD.

3. Amend Circuit Court – Family Division Rule 2.29, as set forth in Appendix EE.

XIII. TEMPORARY RULES CURRENTLY IN EFFECT

(The following rule amendments, which have been in effect on a temporary basis, are adopted on a permanent basis.)

1. Adopt on a permanent basis Supreme Court Rule 42(IV), which was amended on a temporary basis by order dated December 29, 2014, as set forth in Appendix FF.

2. Adopt on a permanent basis Supreme Court Rule 40(11)(j), which was amended on a temporary basis by order dated April 4, 2014, as set forth in Appendix GG.

3. Adopt on a permanent basis Rule 98 of the Rules of the Superior Court of the State of New Hampshire Applicable in Criminal Cases Filed in Superior Court, which was amended on a temporary basis by order dated February 20, 2014, as set forth in Appendix HH.

4. Adopt on a permanent basis Circuit Court – Probate Division Rule 96-A, which was adopted on a temporary basis by order dated December 29, 2014, as set forth in Appendix II.

5. Adopt on a permanent basis Circuit Court – Probate Division Rule 94, which was adopted on a temporary basis by order dated December 29, 2014, as set forth in Appendix JJ.

Effective Date

These amendments shall take effect on January 1, 2016.

November 10, 2015
ATTEST:Eileen Fox, Clerk
Supreme Court of New Hampshire


This court’s order dated May 28, 2014, instituting a freeze on the filling of vacant positions, out-of-state travel, equipment purchases, and other expenditures of $1,000 or more, is hereby rescinded.

Issued: November 12, 2015
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


LD-2015-0005
In the Matter of Alexander R. Cain, Esquire

On April 13, 2015, the Attorney Discipline Office (ADO) filed a certified copy of the March 12, 2015 order of the Supreme Judicial Court for Suffolk County (Massachusetts), which suspended Attorney Alexander R. Cain from the practice of law in Massachusetts for three years.

After receiving this notification, this court issued an order, in accordance -with Rule 37(12)(d), giving Attorney Cain and the Professional Conduct Committee (PCC) an opportunity to advise the court if they believed that the imposition of identical or substantially similar discipline would be unwarranted. The PCC advised the court that it believed substantially different discipline was warranted. Attorney Cain filed no response. After reviewing the PCC’s response and the record of the Supreme Judicial Court, the court concluded that Attorney Cain’s misconduct warranted substantially different discipline in New Hampshire and remanded the matter to the PCC for a recommendation as to the appropriate sanction.

After the matter was remanded to the PCC, the ADO and Attorney Cain reached an agreement that disbarment was the appropriate sanction. Attorney Cain also agreed to pay the ADO’s costs of investigating and prosecuting the matter. The PCC approved the agreement and recommended to the court that Attorney Cain be disbarred. A copy of the PCC’s recommendation was served upon ADO’s Disciplinary Counsel and Attorney Cain, and they were advised that they must identify any legal or factual issues relating to the PCC’s recommendation that they wished the court to review, and that if neither party requested review, no further hearing would be required. No response to the order was filed.

Having reviewed the PCC record and the record of the Supreme Judicial Court proceedings, the court concludes that disbarment is warranted. The record indicates that Attorney Cain was found to have committed misconduct in his handling of four separate legal matters. The Supreme Judicial Court found that Attorney Cain violated Massachusetts Rules of Professional Conduct 1.1, 1.2(a), 1.3, 1.4, 1.16(e), 8.4(c), (d), and (h). It found that Attorney Cain repeatedly and intentionally misrepresented to clients the status of their cases and fabricated court documents to support his misrepresentations.

Accordingly, the court orders as follows:

(1) Attorney Alexander R. Cain is disbarred from the practice of law in New Hampshire.

(2) Attorney Cain shall reimburse the Attorney Discipline Office for all costs and expenses incurred in the investigation and prosecution of this matter.

(3) If Attorney Cain seeks readmission to the New Hampshire bar in the future, he shall be required to take the New Hampshire Bar Examination and the Multistate Professional Responsibility Examination and meet the other requirements of Rule 37(14).

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

DATE: November 20, 2015
ATTEST: Eileen Fox, Clerk


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

I. Strafford and Cheshire County Rules of Criminal Procedure

(This amendment adopts rules of criminal procedure for Strafford and Cheshire counties. The rules codify current rules and practices relating to criminal procedure, and include additional amendments necessary to implement RSA ch. 592-B. The legislation, effective January 1, 2016 in Strafford and Cheshire counties, changes the procedure for felony complaints and misdemeanors and violation-level charges directly related to those felonies for offenses alleged to have occurred on or after January 1, 2016.)

1. Adopt the Strafford and Cheshire County Rules of Criminal Procedure, as set forth in Appendix A.

II. Initial Appearance Pilot Project Rules

(These rule amendments delete the Superior Court Initial Appearance Pilot Project Rules currently in effect in Strafford and Cheshire Counties.)

1. Delete the Superior Court Initial Appearance Pilot Project Rules of the Rules of the Superior Court of the State of New Hampshire Applicable in Criminal Cases Filed in Superior Court, as set forth in Appendix B.

III. Circuit Court-District Division Criminal Rules

(This rule amendment adds a note after the title of the Circuit Court-District Division Criminal Rules to make clear that the rules do not apply to criminal cases filed in Strafford and Cheshire counties on or after January 1, 2016.)

1. Add a note after the title of the Circuit Court-District Division Criminal Rules, as set forth in Appendix C.

Effective Date

These amendments shall take effect on January 1, 2016.

November 23, 2015
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire


Pursuant to Supreme Court Rule 37(4), the Supreme Court reappoints the following persons to the Hearings Committee of the Attorney Discipline System, to serve three-year terms commencing January 1, 2016, and expiring on December 31, 2018:

Rudy Bazelmans
Micheline Dufort
Attorney Judith Fairclough
Attorney Richard C. Gagliuso
Everett S. Grass
Attorney Stephanie Hausman
Attorney Michael Lewis
Attorney Karyl Martin
Attorney Barry Scotch
Patricia Sherman
Attorney Philip H. Utter
Attorney Utter shall continue to serve as chair of the committee.

Issued: December 1, 2015
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


The Supreme Court of New Hampshire hereby reappoints Attorney Matthew J. Fossum, Attorney Willard G. Martin, Jr., and Attorney Evan J. Mulholland, to the Board of Bar Examiners, to serve three-year terms commencing November 1, 2015, and expiring November 1, 2018.

The court appoints Attorney Edward Sackman to the Board of Bar Examiners, replacing Attorney Hugh Lee, who has retired from the board after many years of dedicated service. Attorney Sackman is appointed to serve the remainder of a three-year term expiring on November 1, 2018.

Issued: December 2, 2015
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


Pursuant to Supreme Court Rule 38-A, the Supreme Court appoints Superior Court Associate Justice Andrew R. Schulman to the Advisory Committee on Judicial Ethics, to serve the remainder of a term expiring on September 1, 2018. Justice Schulman is appointed to replace Circuit Court Judge David D. King, whose term has expired and who is not eligible for reappointment.

Issued: December 2, 2015
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


The Supreme Court of New Hampshire, pursuant to RSA 490:4, directs that proceedings in every State court in New Hampshire be suspended on Friday, March 4, 2016, to facilitate continuing judicial and legal education and to accommodate judges’ meetings being held in conjunction with the mid-year meeting of the New Hampshire Bar Association. A judge or master may decide not to suspend proceedings if the judge or master and the lawyers on a case do not plan to attend the mid year meeting, or if the judge or master, in his or her discretion, decides that the efficient administration of the court or ensuring justice in a particular case compels that a case be scheduled for a hearing or trial, or that a hearing or trial continue to be litigated, on that day.

Issued: December 2, 2015
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


ADM-2014-0083
In the Matter of Natalie Rose

On November 13, 2014, Attorney Natalie Rose was suspended from the practice of law in New Hampshire for failure to pay her 2013/14 bar dues. Attorney Rose has now paid her outstanding bar dues and requests that she be reinstated to the practice of law. Attorney Rose’s request for reinstatement is granted. Attorney Rose is reinstated to the practice of law effective immediately.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

DATE: December 3, 2015
ATTEST: Eileen Fox, Clerk

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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