Bar News - August 16, 2017
Court News: Ethics Committee Rule Proposals Draw Mixed Reactions
By: Kristen Senz
Two rule amendments proposed by the NH Bar Association Ethics Committee – one that would allow lawyers to advise clients involved in the medical marijuana business, and one that would forbid lawyers from engaging in harassment or discrimination in the course of law practice – were met with mixed reactions from the NH Supreme Court Advisory Committee on Rules during a June 16 meeting.
Given that marijuana remains a controlled substance under federal law, can attorneys represent clients who work in the medical marijuana business, either in cultivation or dispensaries, without running afoul of the Rules of Professional Conduct?
That’s what the NH Bar Association Ethics Committee has been working to clarify for the better part of the past two years. The committee submitted a 54-page memo to the NH Supreme Court last August, explaining that “a plurality” of the committee recommends a change to Rule 1.2(d) “specifying that a New Hampshire lawyer may ethically provide legal advice and assistance in connection with RSA 126-X” (the medical marijuana statute). The memo provided the Court with background information and courses of action taken to address the issue in other states.
“It’s my personal view that this is actually a matter of public safety and interest as well,” said criminal defense attorney and Ethics Committee member Richard Samdperil, who appeared at the June 16 meeting of the rules committee with Ethics Committee members Judith Bomster and Peter Beeson. “It’s in the public’s interest to have lawyers actively involved here.”
The NH Supreme Court Advisory Committee on Rules seemed to agree. After some discussion that distinguished the marijuana issue from some other situations in which federal law contradicts state law – because, in this case, federal law criminalizes the behavior – the committee scheduled the proposed amendment for a public hearing on Friday, Sept. 15.
NH Superior Court Judge Will Delker, a member of the rules committee, said “allowing lawyers to advise clients in that context seems to me to be a legitimate thing to do.”
The proposed rule amendment that would bar lawyers from engaging in harassment or discrimination outside the courtroom was not met with the same level of general acceptance by the committee.
NHBA Ethics Committee member Peter Imse, who spoke to the rules committee about the proposed provision, along with Rolf Goodwin and Maureen Smith, said the legal profession should join other professions in specifically forbidding harassment and discrimination. About 20 states have adopted some version of ABA model Rule 8.4g, which prohibits such behavior and was first proposed in 1988, Imse said.
NH Supreme Court Justice Robert Lynn, who chairs the rules committee, worried that the change could accelerate the rising number of complaints against lawyers by all manner of aggrieved clients. “Unlike other professions, lawyers are inherently involved in conflicts,” Lynn said.
Imse said he was confident that the staff at the NH Attorney Discipline Office would be able to sort through the complaints to determine which ones warranted further investigation.
“I’m coming from, as someone who has three daughters, a place where I’d rather inconvenience the lawyer for a little while than not have a place where a person who’s being discriminated against can come forward and make a complaint,” Imse said, adding that he and others who worked on the proposal were open to working with the rules committee to adjust the wording of the proposed rule.
Josh Gordon, an appeals lawyer who serves on the rules committee, shared Imse’s concerns. “You could ask any of the women lawyers in the state whether they’ve experienced discrimination in their professional lives and every one of them would say yes, but it’s never going to see the light of day, because there’s no venue for them to come forward about it,” he said.
Smith also argued that harassment and discrimination among New Hampshire lawyers goes unreported. “Right now, there’s no ability for the partners to go to another partner who’s harassing an associate and say, ‘Hey, you’re putting all of our licenses at risk here, you’ve got to stop,’” she said. “Lawyers need to regulate lawyers, and that’s what we would like to achieve here.”
Rules committee members Gordon and Jeanne Herrick volunteered to work with the Ethics Committee to refine the proposal and bring back new language at the next rules committee meeting in September.