APPENDIX A

[Note: This proposal was suggested by the Professional Conduct Committee.]

Amend Supreme Court Rule 37(2)(j) by striking out subsection (j) and replacing it with the following new subsection (j), so that said subsection as amended shall read as follows:

 

(j) Warning: "Warning" means non-disciplinary action taken by the committee, including referral to the court for appropriate remedial action, when it is believed that an attorney acted in a manner which involved behavior requiring attention although not constituting clear violation of the Rules of Professional Conduct warranting disciplinary action.

APPENDIX B

[Note: This proposal was suggested by the Professional Conduct Committee.]

Amend Supreme Court Rule 37 by striking out paragraph (6) and replacing it with the following new paragraph (6), so that said paragraph as amended shall read as follows:

 

(6) Subpoena Power for the Committee: At any stage of the proceedings before the committee, witnesses with or without documents may be summoned by subpoena or subpoena duces tecum issued by a single justice of the court upon request of the committee or a respondent-attorney. Witnesses before the committee shall be examined under oath or affirmation.

 

APPENDIX C

[Note: This proposal was suggested by the Professional Conduct Committee.]

Amend Supreme Court Rule 37(13) by adding a new subparagraph (a-1), which shall read as follows:

(a-1) Referrals for appropriate remedial action shall be initiated in this court by the committee by written petition setting forth the aspects of the attorney's practice that require corrective action and the recommendation of the committee as to steps that the attorney should undertake to address those needs.

 

APPENDIX D

[Note: This proposal was suggested by the Professional Conduct Committee.]

Amend Supreme Court Rule 37A(1)(c) by adding a new paragraph to the end of subsection (1)(c), so that said subsection as amended shall read as follows:

 

(c) Definitions.

Subject to additional definitions contained in subsequent provisions of this rule which are applicable to specific sections, subsections, or other provisions of this rule, the following words and phrases, when used in this rule, shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

Administrator - The administrator of the committee, or designee.

Answer - The response filed by the respondent to a complaint or notice of charges.

Bar Counsel - Counsel engaged by the committee.

Committee - The New Hampshire Supreme Court Committee on Professional Conduct.

Committee Chair - The chair of the committee, or, in the absence of the chair, a vice-chair of the committee.

Complaint - A grievance that, after initial screening, has been determined to be within the jurisdiction of the committee and to meet the requirements for docketing as a complaint as set forth in section (2)(a)(3)(B) and that is docketed by the committee, or a complaint that is drafted and docketed by the committee after a committee-initiated inquiry. If, after docketing, the committee determines that a complaint is not within its jurisdiction and/or does not meet the requirements for docketing, the committee shall remove it from the docket and it shall thereafter be treated for all purposes as a grievance that has not been docketed as a complaint.

Court - The New Hampshire Supreme Court.

Disbarment - Disbarment shall be the termination of an attorney's right to practice law in the State of New Hampshire and automatic expulsion from membership in the Bar of the State of New Hampshire. A disbarred attorney may only apply for readmission to the Bar of the State of New Hampshire upon petition to the court, having complied with the terms and conditions set forth in the disbarment order promulgated by the court which shall include all requirements applicable to the application for admission to the bar, including the passing of the bar examination and a favorable report by the committee on character and fitness.

Disciplinary Rule - Any provision of the rules of the court governing the conduct of attorneys or any Rule of Professional Conduct.

Discipline - Any disciplinary action authorized by this rule, in those cases in which misconduct in violation of a disciplinary rule is found warranting disciplinary action.

Formal Proceedings - Proceedings subject to section (3) of this rule.

Grievance - A written submission filed with the committee to call to its attention conduct that the grievant believes constitutes misconduct by an attorney-respondent. A grievance that is determined after initial screening not to be within the jurisdiction of the committee and/or not to meet the requirements for docketing as a complaint shall not be docketed as a complaint and shall continue to be considered a grievance. A grievance that is determined after initial screening to be within the jurisdiction of the committee and to meet the requirements for docketing as a complaint shall be docketed as a complaint and shall be referred to thereafter as a complaint; provided, however, that if the committee later determines that the docketed complaint is not within its jurisdiction and/or does not meet the requirements for docketing, the committee shall remove it from the docket and it shall thereafter be treated for all purposes as a grievance that has not been docketed as a complaint.

Hearing Panel - A hearing panel established under section (3) of this rule.

Hearing Panel Chair - The member of the committee designated as chair of a hearing panel by the committee chair or vice-chair pursuant to this rule.

Inquiry - A preliminary investigation of a matter begun by the committee on it own initiative to determine whether a complaint should be docketed.

Investigation - Fact gathering by or under the direction of the committee with respect to alleged misconduct.

Investigator - Any person designated by the committee to assist it in the investigation of alleged misconduct.

Notice of Charges - A formal pleading served under section (3)(b) of this rule by the committee.

Parties - The committee and the respondent.

Public Censure - The publication by the court, in any appropriate New Hampshire publication, of a summary of its findings and conclusions relating to the discipline of a respondent.

Referral - A grievance received by the committee from any judge or from any member of the Bar of New Hampshire, in which the judge or attorney indicates that he or she does not wish to be treated as a grievant.

Reprimand - Discipline administered by the committee after notice of charges and after a hearing, or a written waiver of a hearing by the respondent which is accepted by the committee, in those cases in which misconduct in violation of a disciplinary rule is found. Reprimand is administered by letter issued by the committee chair, subject to a respondent's right to appeal such discipline to the court.

Respondent - An attorney (or attorneys) admitted to practice law in the State of New Hampshire or an attorney (or attorneys) specially admitted by a court of the State of New Hampshire for a particular proceeding, who in either case is (or are) (1) alleged to have been guilty of misconduct in a grievance, complaint, or notice of charges, and (2) subject to the disciplinary rules.

Rule - The provisions of Supreme Court Rule 37A.

Rules of Professional Conduct - The Rules of Professional Conduct as adopted by the New Hampshire Supreme Court, as the same may from time to time be amended.

Suspension - The suspension of an attorney's right to practice law in New Hampshire, for a period of time specified by the court. The suspended attorney shall have the right to resume the practice of law, after the expiration of the suspension period, upon compliance with all of the terms and conditions set forth in the suspension order promulgated by the court and pursuant to the procedure set forth in Supreme Court Rule 37(12) regarding reinstatement.

Warning - Non-disciplinary action taken by the committee when it is believed that an attorney acted in a manner which involved behavior requiring attention although not constituting clear violation of the Rules of Professional Conduct warranting disciplinary action.

Warning with Referral - Non-disciplinary action taken by the committee when it is determined that an attorney has exhibited persistent conduct or behavior which requires remedial attention, although not constituting clear violation of the Rules of Professional Conduct warranting disciplinary action.

APPENDIX E

[Note: This proposal was suggested by the Professional Conduct Committee.]

Amend Supreme Court Rule 37A(1)(e) by adding a new subsection (3) to the end of section (1)(e), so that new subsection (1)(e)(3) shall read as follows:

(3) The committee may issue a warning with a referral for appropriate remedial action whenever a respondent has been found to come close to, but not actually violated the Rules of Professional Conduct and the committee believes that the respondent has exhibited a pattern of persistent conduct or behavior that it believes may be addressed with appropriate remedial action.

APPENDIX F

[Note: This proposal was suggested by the Professional Conduct Committee.]

Amend Supreme Court Rule 37A(3)(c) by adding a new subsection (9) to the end of subsection (3)(c), so that new subsection (3)(c)(9) shall read as follows:

 

(9) Photographing, Recording and Broadcasting.

Except by order of the committee chair or the supreme court, no person shall within the hearing room take any photograph, make any recording, or make any broadcast by radio, television or other means in the course of any proceeding. Reporters hired by the committee to record hearings pursuant to this rule and authorized recorders are not prohibited by this rule from making voice recordings for the sole purpose of discharging their official duties.

APPENDIX G

[Note: This proposal was suggested by the Professional Conduct Committee.]

Repeal Supreme Court Rule 37A(3)(d)(4).

 

APPENDIX H

[Note: This proposal was suggested by the Professional Conduct Committee.]

Amend Supreme Court Rule 37A by adding a new section (6) to the end of the rule, so that new section 37A(6) shall read as follows:

(6) Request for Reconsideration.

(a) Request. A request for reconsideration shall be filed with the committee within (10) days of the date on the committee chair's written confirmation of any decision of the committee. The request shall state, with particular clarity, points of law or fact that the committee has overlooked or misapprehended and shall contain such argument in support of the request as the party making such request desires to present.

(b) Answer. No answer to a request for reconsideration shall be required unless specifically ordered by the committee, but any answer or response must be filed within ten (10) days of the date on the notification of the request.

(c) Committee Action. If a request for reconsideration is granted, the committee may reverse its decision or take other appropriate action without rehearing or may schedule a further hearing.

(d) Effect of Request. The filing of a request for reconsideration of a reprimand shall stay the thirty day period for filing an appeal pursuant to Supreme Court Rule 37(3)(c)(5).

APPENDIX I

[Note: This proposal arises out of a suggestion submitted by Executive Councilor Peter J. Spaulding.]

Amend Supreme Court Rule 38, Canon 5 (C)(4)(c) by deleting it and replacing it with the following:

(c) a judge or a member of his family residing in his household may accept any other gift, bequest, favor, or loan only if the donor or lender is not a party or other person whose interests have come or are likely to come before him; provided, however, that if the value of said gift, bequest, favor, or loan exceeds $100, then it may be accepted only if the donor or lender is not a party or other person whose interests have come or are likely to come before him and the donor or lender is not an attorney licensed to practice law in New Hampshire. In addition, if the value of said gift, bequest, favor, or loan exceeds $100, then the judge shall report it in the same manner as he reports compensation in Canon 6C.

 

 

APPENDIX J

[Note: This proposal arises out of a suggestion submitted by the supreme court.]

Amend Supreme Court Rule 42(7)(b) by striking out subparagraph (7)(b) and replacing it with the following new subparagraph (7)(b), so that said subparagraph as amended shall read as follows:

(b) A new admittee's license to practice shall not be so revoked if, within two years after being admitted to the bar and before completing the practical skills course, he or she leaves New Hampshire on a military or other government service assignment for more than a brief period, intending later to satisfy the requirements of the rule, and promptly so notifies the Court in writing; provided, however, he or she attends a practical skills course given within three years of the date of departure, and further provided that, if he or she shall have completed the assignment and returned to New Hampshire within the three-year period, the course taken shall be the first available course given after his or her return. The admittee shall notify the Court promptly of his or her return within the three-year period. Upon written request in exceptional instances, the Court may extend the three-year period following the date of departure within which the admittee must attend a practical skills course.

 

APPENDIX K

[Note: This is an advisory rules committee-generated proposal.]

Amend Supreme Court Rule 51 B. by striking out section B. and replacing it with the following new section B., so that section B. as amended shall read as follows:

B. Appointment of Advisory Committee on Rules

(1) There shall be an Advisory Committee on Rules, which shall be composed of thirteen members as follows:

(a) One judge from each of the following courts shall be appointed by the supreme court: district court, probate court, superior court, and supreme court.

(b) Two attorneys shall be appointed by the supreme court.

(c) Three lay persons shall be appointed by the supreme court.

(d) One member shall be appointed by the Governor.

(e) One member of the senate shall be appointed by the president of the senate.

(f) One member of the house shall be appointed by the speaker of the house.

(2) Appointments by the supreme court shall, where possible, be made from the Committee on Judicial Conduct, the Committee on Professional Conduct, the New Hampshire Bar Association's Committees on Civil Procedure, Evidence and Ethics, and such other committees as may be either studying or enforcing rules for the administration of justice. All such committees shall channel recommended changes through the Advisory Committee on Rules and shall serve as its sub-committees for specific areas of rule-making.

(3) A vacancy in the office of the committee shall occur

(a) when a member ceases to be a member by resignation or otherwise;

(b) when a judge ceases to hold the office which he or she held at the time of selection;

(c) when a lawyer ceases to be admitted to practice in the courts of this State or is appointed to a judicial office;

(d) when a lay person becomes a lawyer or a judge;

(e) when a legislative member ceases to be a member of the general court.

(4) Members appointed by Governor, the president of the senate, and the speaker of the house shall serve at the pleasure of the appointing authority.

(5) The secretary of the committee shall be the clerk of the supreme court or any other person designated by the supreme court.

 

 

APPENDIX L

[Note: This proposal arises out of a suggestion submitted by Attorney Kathleen Sullivan.]

Adopt a new Superior Court Rule 63-A, which read as follows:

 

SUBPOENAS FOR TRIAL

63-A. Absent an order of the court obtained in advance for good cause shown, a summons or subpoena for a witness to appear for trial shall not be effective unless served on or before the third day prior to the date upon which the witness is required to appear. A copy of any court order permitting service of the summons or subpoena less than three days prior to the date upon which the witness is required to appear shall be served upon the witness with the summons or subpoena.

 

APPENDIX M

[Note: This proposal was referred to the advisory rules committee by order of the supreme court dated February 5, 2001.]

Amend Superior Court Administrative Rule 12-9 by adopting on a permanent basis the amendment approved by the supreme court on a temporary basis on February 5, 2001, so that said rule shall read as follows:

12-9. Marital Masters are authorized to hear all marital matters and all matters relating to domestic relations over which the superior court or family division has equitable jurisdiction, including permanent custody and UIFSA cases, except violations. If possible, a Marital Master sitting on the first hearing in a case will thereafter be assigned to take care of all matters pertaining to that case.

APPENDIX N

[Note: This proposal was suggested by the Professional Conduct Committee.]

Amend Rules of Professional Conduct, Rule 8.1 by amending said rule to add a new subparagraph (c), so that said rule as amended shall read as follows:

Rule 8.1. Bar Admission and Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6; or

(c) fail to attend a hearing when ordered to do so by a disciplinary authority.

APPENDIX O

[Note: This proposal was suggested by Senior Assistant Attorney General N. William Delker.]

Amend Rule of Evidence 803(6) by deleting said subsection and replacing it with the following new subsection (6):

(6) Records of Regularly Conducted Activity

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph, includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

APPENDIX P

[Note: This proposal was suggested by Senior Assistant Attorney General N. William Delker.]

Amend Rule of Evidence 902 by adding new paragraphs (11) and (12), so that said paragraphs (11) and (12) shall read as follows:

 

(11) Certified domestic records of regularly conducted activity. – The original or a duplicate of a domestic record of regularly conducted activity, which would be admissible under Rule 803(6), and which the custodian thereof or another qualified person certifies under oath –

(A) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record in evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record available for inspection sufficiently in advance of its offer in evidence to provide an adverse party with a fair opportunity to challenge it.

 

(12) Certified foreign records of regularly conducted activity. – In a civil case, the original or a duplicate of a foreign record of regularly conducted activity, which would be admissible under Rule 803(6), and which is accompanied by a written declaration by the custodian thereof or another qualified person that the record –

(A) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner which, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record in evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record available for inspection sufficiently in advance of its offer in evidence to provide an adverse party with a fair opportunity to challenge it.