Bar News - December 21, 2016
Court News: Rules Committee Votes Down Vertical Prosecution at ADO
By: Kristen Senz
After a public hearing Dec. 9, the NH Supreme Court Advisory Committee on Rules voted 9-5 to defeat a proposal that would have enabled vertical prosecution at the Attorney Discipline Office.
Under the current system, a grievance is investigated by one of three general counsel attorneys at the Attorney Discipline Office (ADO), before the case is reviewed by the Complaint Screening Committee. If that committee finds that a case should be docketed and that the ADO should move forward with prosecution, then one of two disciplinary counsel attorneys takes it over and effectively starts from scratch with the investigation. Only about 10 percent of grievances are ever docketed, said ADO Chief Counsel Sara Greene, meaning general counsel handle substantially more allegations than disciplinary counsel does.
Greene and disciplinary counsel proposed doing away with that separation in the process, allowing disciplinary counsel to assist general counsel in the initial investigation and in the presentation to the Complaint Screening Committee. David Rothstein, chair of the Professional Conduct Committee, supported the proposal at the Dec. 9 public hearing before the rules committee, saying that it would streamline operations and workflow in the office.
“There are some situations where it might be more efficient or it might make more sense for one lawyer to take a case all the way through the process… or for disciplinary counsel to take a case early on and take it to the screening committee,” Rothstein said.
But at least one attorney and some members of the rules committee took issue with potentially removing – or even the perception of removing – a layer of due process protection at the ADO. Seacoast attorney Tracy Pearson submitted comments in opposition to the proposed change in advance of the public hearing.
“Because the Respondent cannot participate in the Screening Committee process, what is proposed gives Disciplinary Counsel an advantage over the Respondent,” Pearson wrote.
She further questioned the proposed incremental changes in the ADO process, recommending instead a full assessment of its operations. Her three-page memo is available on the rules committee page of the Court’s website.
Some members of the rules committee compared the ADO process to the criminal justice system, with the complaint screening committee acting as a sort of grand jury. But others pointed out that, unlike the grand jury process, ADO attorneys can already talk to each other about what goes on in meetings of the screening committee, arguing that the proposed change wouldn’t give the ADO a new advantage.
Several members of the Supreme Court Advisory Committee on Rules said they failed to find a compelling reason for the change.
NH Supreme Court Justice Robert Lynn, who chairs the rules committee, explained that the proposal was the result of concerns the Supreme Court expressed to the ADO about its operational efficiency.
“There is another level of due process in the way it works now, but I don’t think there’s any legal basis for that,” Lynn said. “I don’t think the level of process that is provided here is in any sense provided for by law... Are we giving lawyers a kind of extra measure of due process that they really don’t need?”
Rules committee member Josh Gordon said weighing proposed changes to the ADO process “may be one of the more delicate things that this body does.”
“In criminal justice, all three branches of government are involved, and that’s a set of due process that’s hard to quantify, but lawyers are a self-regulated profession, so there’s pressure from the public to regulate lawyers and then pressure from colleagues, so I don’t think the analogy really works here,” Gordon said. “I guess I have to be persuaded that something is more broke before I’m willing to vote to fix it.”
After the 9-5 vote against the proposed rule change, some committee members said that if ADO representatives came back with a more detailed presentation about why the change was needed, they would be willing to reconsider it.
Also at the Dec. 9 meeting, the rules committee voted in favor of a proposed summary suspension rule, which the ADO could use when attorneys accused of “serious misconduct” are nonresponsive to ADO communications. The rule, which the committee will recommend to the Supreme Court for adoption, would require ADO counsel to file a petition for summary suspension with the court, along with a supporting affidavit, only after the ADO has attempted to serve the attorney via mail and in-hand at the address on file with the NH Bar Association, and the attorney has been given reasonable time to respond.
In other action, the Advisory Committee on Rules briefly discussed a letter from the NHBA Ethics Committee about potential changes to the rules of professional conduct that relate to attorneys’ ability to counsel clients involved in the business of growing and selling marijuana for medical purposes in New Hampshire. The committee tabled a comprehensive discussion until a future meeting.