Professional Conduct Rules Table of Contents
The
Rules of Professional Conduct constitute the disciplinary standard for New
Hampshire lawyers. Together with law and other regulations governing lawyers,
the Rules establish the boundaries of permissible and impermissible lawyer
conduct.
The Rules of Professional Conduct are rules
of reason. They should be
interpreted with reference to the context of legal representation and of law
itself. Some of the Rules are
imperatives, expressed by the terms "shall" or "shall not". Others, generally expressed by the term
"may", are permissive and define areas in which the lawyer may
exercise professional judgment.
The Rules are not designed to be a basis
for civil liability. The purpose of
the Rules can be subverted when the Rules are invoked by opposing parties as
procedural weapons. Violation of a
Rule should not itself give rise to a cause of action against a lawyer nor
should it create any presumption in such a case that a legal duty has been
breached. Violation of a Rule does not necessarily warrant any other
nondisciplinary remedy, such as disqualification of a lawyer from a position or
from pending litigation. Nevertheless,
as the Rules establish a standard of conduct for lawyers, a lawyer's violation
of a Rule may be evidence of breach of the applicable standard of conduct.
The Rules of Professional Conduct are
promulgated and amended by the Supreme Court of the State of New Hampshire with
due input from members of the New Hampshire Bar and interested members of the
public. Each Rule is published together with the applicable ABA Comment,
as adopted by the American Bar Association in conjunction with its Model Rules
of Professional Conduct. Preceding the ABA Comment may be found an Ethics
Committee Comment, which may describe distinctions between the Rule as adopted
in New Hampshire and the respective ABA Model Rule. The ABA and
Ethics Committee Comments are intended to be interpretive, not mandatory. The
Ethics Committee Comments are provided by the Ethics Committee of the New
Hampshire Bar Association.
Lawyers have traditionally aspired to
higher standards of professionalism than should be made mandatory in the Rules. Professionalism encompasses civility,
competence, conscience, contribution to the quality of the legal system
including equal access to the courts, and public service.
Ethics Committee Comment
The Statement of Purpose replaces the ABA Model Preamble and Scope in their entirety. The New Hampshire Supreme Court has not adopted the existing ABA Model Preamble and Scope, so that there is no base text to amend. The NHBA Ethics Committee found that, in both the existing and the proposed ABA Model Preamble and Scope, the following defects exist:
Much of the Preamble and Scope consists of imprecise restatements or summaries of the Rules, which are generally unnecessary, potentially confusing, or both.
It is inappropriate for the Statement of Purpose to attempt to codify when the Rules should or should not be used by disciplinary bodies, or how degrees of punishment for violations should be determined.
Portions of the Preamble and Scope are aspirational in nature, which runs the risk of converting goals into mandates. The Rules will succeed better if the distinction between worthy aspirations and basic mandates is kept clear.
The length and lack of clarity in the wording of the Preamble and Scope materially diminish their utility to their readers.