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Bar News - November 16, 2016


Supreme Court Orders

Order Adopting Court Rule-Change Recommendations

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 from Decisions Designated as Final By Superior Court

(This amendment to Superior Court (Civ.) Rule 46 adopts a rule, similar to Federal Rule of Civil Procedure 54(b), which allows a court to direct that an order or portion of an order that finally resolves the case as to one or more, but fewer than all, the claims or parties be treated as a final decision on the merits if the court expressly determines that there is no just reason for delay. A related amendment to Supreme Court Rule 3 provides that an appeal from such a decision is a mandatory appeal).

1. Amend Supreme Court Rule 3 (“Mandatory Appeal”), as set forth in Appendix A.

2. Amend Superior Court (Civ.) Rule 46, as set forth in Appendix B.

II. Rulemaking Procedures

(This amendment to Supreme Court Rule 51(d)(3) changes the dates on which the Advisory Committee on Rules is to report proposed rules or rule amendments to the Court).

1. Amend Supreme Court Rule 51(d)(3), as set forth in Appendix C.

III. Administrative Judges and Administrative Council

(This amendment to Supreme Court Rule 54(3) makes the Chief Justice of the Supreme Court, or his or her designee, a member of the administrative council).

1. Amend Supreme Court Rule 54(3), as set forth in Appendix D.

IV. Circuit Court – Family Division Rules 2.29 and 2.3

(These amendments clarify when decrees become effective in family division cases).

1. Amend Circuit Court – Family Division Rule 2.29, as set forth in Appendix E.

2. Amend Circuit Court – Family Division Rule 2.3, as set forth in Appendix F.

V. Fees – Circuit Court Rules

(These amendments change the rules relating to fees to be charged to people who request copies of court documents).

1. Amend Circuit Court – District Division Rule 3.3(I)(C), as set forth in Appendix G.

2. Amend Circuit Court – Probate Division Rule 169(V), as set forth in Appendix H.*

3. Amend Circuit Court – Family Division Rule 1.3(N), as set forth in Appendix I.

*The change to Probate Division Rule 169(V) set forth in Appendix H is effective January 1, 2017. The change to Probate Division Rule 169(V), set forth in Appendix K, is effective immediately.

VI. Fees – Circuit Court – Probate Division

(These amendments: (1) delete “Petition for Involuntary Admission” and “Petition Guardian of Incompetent Veteran” from Probate Division Rule 169 so that no fee will be applicable to either filing; and (2) delete “Photocopy of Will - $1.00/page and strike the word “other” from “all other copied materials $.50/page from Probate Division Rule 169).

1. Amend Circuit Court – Probate Division 169(I)(c), as set forth in Appendix J.

2. Amend Circuit Court – Probate Division Rule 169(V), as set forth in Appendix K.

VII. Rules of Professional Conduct 5.5 Unauthorized Practice of Law

(These amendments clarify that a lawyer who is licensed in another jurisdiction but does not practice New Hampshire law does not need to obtain a license to practice law solely because the lawyer is present in New Hampshire).

1. Amend Rule 5.5 of the New Hampshire Rules of Professional Conduct, as set forth in Appendix L.

VIII. Strafford, Cheshire, Belknap and Merrimack County Rules of Criminal Procedure

(These amendments make changes to court rules to implement RSA ch. 592-B. The legislation, effective January 1, 2016 in Cheshire and Strafford Counties, and effective July 1, 2016 in Belknap County will become effective in Merrimack County on January 1, 2017 and in additional counties as of the dates set forth in the October 17, 2016 order issued by this Court. See October 17, 2016 felonies first implementation order at http://www.courts.state.nh.us/supreme/orders/10-17-16-Order.pdf. It 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 the effective date in the particular county.)

1. Amend the title of the Strafford, Cheshire and Belknap County Rules of Criminal Procedure, as set forth in Appendix M.

2. Amend the preamble to the Strafford, Cheshire and Belknap County Rules of Criminal Procedure (renamed, effective January 1, 2017, the Strafford, Cheshire, Belknap and Merrimack County Rules of Criminal Procedure), as set forth in Appendix N.

3. Amend Rule 1 of the Strafford, Cheshire and Belknap County Rules of Criminal Procedure (renamed, effective January 1, 2017, Strafford, Cheshire, Belknap and County Rules of Criminal Procedure), as set forth in Appendix O.

4. Amend Rule 2 of the Strafford, Cheshire and Belknap County Rules of Criminal Procedure (renamed, effective January 1, 2017, the Strafford, Cheshire, Belknap and Merrimack County Rules of Criminal Procedure), as set forth in Appendix P.

5. Amend the table of contents of the Rules of the Superior Court of the State of New Hampshire, as set forth in Appendix Q.

6. Amend Rule 101 of the Rules of the Superior Court of the State of New Hampshire, as set forth in Appendix R.

7. Amend the Preamble to the New Hampshire Rules of Criminal Procedure, as set forth in Appendix S.

8. Amend Rule 1 of the New Hampshire Rules of Criminal Procedure, as set forth in Appendix T.

9. Amend Rule 2 of the New Hampshire Rules of Criminal Procedure, as set forth in Appendix U.

10. Amend the note which replaced, effective March 1, 2016, the Circuit Court – District Division Criminal Rules, as set forth in Appendix V.

Effective Date

The amendments set forth in appendices J and K shall take effect immediately. All other amendments shall take effect on January 1, 2017.

October 17, 2016
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire


Amended Order re Felonies First Implementation

This order has been issued to amend the date for implementation of the “Felonies First” project in Carroll County Superior Court. The court’s order of September 19, 2016 is vacated and superseded by this order.

In accordance with RSA 592-B:2, the “Felonies First” project is currently effective in Cheshire County Superior Court, Strafford County Superior Court, and Belknap County Superior Court. RSA 592-B:2 provides that the “Felonies First” project shall become effective in the remaining superior courts upon order of the Supreme Court.

In accordance with RSA 592-B:2, the Supreme Court orders that “Felonies First” project take effect in the remaining superior courts on the following dates:

Merrimack County Superior Court January 1, 2017
Carroll County Superior Court April 1, 2017
Coos County Superior Court April 1, 2017
Grafton County Superior Court April 1, 2017
Hillsborough County Superior Court-Northern Division September 1, 2017
Hillsborough County Superior Court- Southern Division September 1, 2017
Rockingham County Superior Court October 1, 2017
Sullivan County Superior Court October 1, 2017

Issued: October 17, 2016
ATTEST: Eileen Fox, Clerk of Court
Supreme Court of New Hampshire


R-2016-003
In re August 3, 2016 Report of the Advisory Committee on Rules

Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51, the Supreme Court of New Hampshire amends Rule 29(e) of the New Hampshire Rules of Criminal Procedure, as set forth in Appendix A. The court also amends Rule 29(e) of the Strafford, Cheshire and Belknap County Rules of Criminal Procedure (renamed, effective January 1, 2017, the Strafford, Cheshire, Belknap and Merrimack County Rules of Criminal Procedure), as set forth in Appendix B. These amendments shall take effect on January 1, 2017.

The court has reviewed the August 3, 2016 Report of the Advisory Committee on Rules (Committee) recommending, on a vote of 8-7, the adoption of amendments to New Hampshire Rule of Criminal Procedure 29(e) and Strafford, Cheshire and Belknap County Rule of Criminal Procedure 29(e), the alternative proposal submitted by Supreme Court Justice Robert J. Lynn, the record of the proceedings before the Committee, and the comments received in response to the Supreme Court’s order of August 22, 2016 inviting comments on both proposals.

Upon thorough consideration of the above materials, the court hereby adopts the amendments to Rule 29(e) as set forth in Appendices A and B attached to this order. The amendments adopted by the court incorporate all of the proposed changes to Rule 29(e) as to which there was agreement among the members of the Committee. The objective of these amendments is to create procedures designed to insure that no person will be incarcerated for failure to pay a fine, penalty assessment, or restitution (hereinafter referred to as “assessments”), or failure to perform community service, unless a court has determined that the person has the ability to pay the assessment or perform the community service and has willfully failed to do so. The Supreme Court believes that the amendments will accomplish their intended objective, and expresses its thanks and appreciation to all those who participated in the formulation of these amendments.

The court declines to adopt the provision of the Committee majority’s proposal which would establish an automatic, across-the-board, right to court-appointed counsel paid for by the State for all indigent defendants facing the possibility of incarceration for failure to pay an assessment or perform community service in circumstances where the offense would not otherwise permit incarceration for the purpose of criminal punishment. Neither this court nor the United States Supreme Court has held that such a right is mandated under the New Hampshire or the United States Constitutions. That being the case, the court concludes that the creation of such a right as a matter of public policy, whether permanently or on a so-called “pilot” basis, is a matter properly left to the New Hampshire legislature. The court notes that New Hampshire law has long recognized the authority of courts to appoint a lawyer at state expense on a case-by-case basis for an indigent defendant facing incarceration for civil contempt where the circumstances of the particular case are sufficiently complex or where other special circumstances exist, see Duval v. Duval, 114 N.H. 422, 426-27 (1974), and the amendments the court approves today specifically recognize such authority.

The other differences between the amendments the court adopts today and those proposed by the Committee majority concern: (1) the information that a court may consider in determining whether a person has the ability to pay or to perform and has willfully failed to do so, and (2) the party that bears the burden of proof of demonstrating justification for failing to pay or to perform once the fact of such failure has been established. The amendments adopted by this court are consistent with existing New Hampshire law on these matters, whereas the Committee majority’s proposals would change existing law in a manner that likely would make it more difficult to collect assessments from persons who have the ability to pay but have willfully failed to do so.

DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.
CONBOY, J., concurring in part and dissenting in part. I respectfully dissent to the extent that I would adopt that part of the rule amendment proposed by the majority of the court’s rules advisory committee that would establish a one-year pilot program, with renewal subject to legislation. The proposed pilot program, endorsed by the circuit court administrative judges, would make appointment of counsel, at state expense, available to all indigent defendants for final ability-to-pay-assessment hearings at which incarceration is a possible outcome. See Aug. 3, 2016 Advisory Committee on Rules report. In all other respects, I agree with the rule adopted today.

October 17, 2016
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire


LD-2016-0015
In the Matter of Tanner Z. Nolin, Esquire

On August 9, 2016, the Professional Conduct Committee (PCC) filed a recommendation that Attorney Tanner Z. Nolin be suspended from the practice of law for a period of three years, with conditions, and ordered to pay the costs associated with the investigation and enforcement of the disciplinary matter. The PCC’s recommendation approved a stipulation executed by Attorney Nolin and the Attorney Discipline Office’s disciplinary counsel in which Attorney Nolin agreed that that he had violated several Rules of Professional Conduct and further agreed that the appropriate sanction for these violations was a three-year suspension with conditions. In accordance with Supreme Court Rule 37(16), a copy of the PCC’s recommendation was served upon Attorney Nolin, along with an order requiring him and disciplinary counsel to identify any legal or factual issues that they wished the court to review. Neither Attorney Nolin nor disciplinary counsel identified any issues for review.

Based on the parties’ stipulation, the PCC found that Attorney Nolin violated the following Rules of Professional Conduct:

1. Rule 1.1 and 1.3, requiring a lawyer to represent clients competently and with diligence;

2. Rule 1.4, requiring a lawyer to keep clients reasonably informed about the status of their matters;

3. Rule 1.15 and Supreme Court Rule 50, requiring a lawyer to safeguard client property;

4. Rule 8.4(c), making it misconduct to engage in conduct involving deceit; and

5. Rule 8.4(a), making it misconduct to violate the Rules of Professional Conduct.

After reviewing the PCC’s recommendation, and the record of the PCC proceedings, the court accepts the PCC’s recommendation that Attorney Nolin should be suspended from the practice of law in New Hampshire for a period of three years on the condition that he meet certain requirements during this period. The conditions are set forth in the parties’ stipulation and in a Monitoring Agreement that Attorney Nolin entered into with the Lawyer Assistance Program. Accordingly, the court orders as follows:

(1) Attorney Tanner Z. Nolin is suspended from the practice of law in New Hampshire for a period of three years, on the condition that he comply with the conditions set forth in the parties’ stipulation and the LAP Monitoring Agreement during the three-year period. The suspension shall take effect August 8, 2016, nunc pro tunc.

(2) Attorney Nolin is ordered to reimburse the Attorney Discipline Office for all costs and expenses incurred by the attorney discipline system in the investigation and prosecution of this matter.

(3) Attorney Nolin is ordered to comply with the provisions of Supreme Court Rule 37(13).

(4) Within 30 days of this order, Attorney Nolin shall file with the court an affidavit showing that he has fully complied with the requirements of Rule 37(13). A copy of the affidavit shall be sent to the Attorney Discipline Office.

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

DATE: October 21, 2016
ATTEST: Eileen Fox, Clerk

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