THE STATE OF NEW HAMPSHIRE
SUPREME COURT OF NEW HAMPSHIRE
O R D E R
R-2002-0001, In re December 2001 and March 2002 Reports of the Advisory Committee on Rules
The New Hampshire Supreme Court Advisory Committee on Rules has reported the following rules to the New Hampshire Supreme Court with a recommendation that they be adopted:
A. SUPREME COURT RULES
1. Rule 12 re requests for confidentiality of case records and access to case records (Appendix A).
2. Rule 32-A re counsel in guardianship and involuntary admission cases (Appendix B).
3. Rule 37(10) re reciprocal discipline of attorneys (Appendix C).
4. Rule 50(1)A re trust accounts (Appendix D).
5. Rule 50(2)B re trust accounts (Appendix E).
B. SUPERIOR COURT RULES
1. Superior Court Rule 36 re interrogatories (Appendix F).
On or before Thursday, August 1, 2002, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the above rules. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at:
Copies of the proposed changes are available upon request to the clerk of the supreme court at the N.H. Supreme Court Building, One Noble Drive, Concord, New Hampshire 03301 (Tel. 271-2646). In addition, the proposed changes are available on the Internet at: http://www.state.nh.us/courts/supreme.htm
The current rules of the New Hampshire state courts are also available on the Internet at:
May 14, 2002
ATTEST: Eileen Fox, Clerk
Supreme Court of New Hampshire
Adopt Supreme Court Rule 12, which was adopted on a temporary basis on June 27, 2001, as a permanent rule as follows:
RULE 12. REQUESTS FOR CONFIDENTIALITY OF CASE RECORDS; ACCESS TO CASE RECORDS
(1) Supreme Court Records Subject to Public Inspection.
(a) General Rule. In all cases in which relief is sought in the supreme court, all pleadings, docketed entries, and filings related thereto (hereinafter referred to as "case records") shall be available for public inspection unless otherwise ordered by the court in accordance with this rule.
(b) Exceptions. The following categories of case records are not available for public inspection:
(1) records of juvenile cases, including cases of delinquency, abuse or neglect, children in need of services, termination of parental rights, and adoption, which by statute are confidential;
(2) applications for a grand jury and grand jury records, which by statute and common law are confidential;
(3) records of other cases that are confidential by statute, administrative or court rule, or court order.
(c) Burden of Proof. In the absence of a statute or an administrative or court rule making a case record or particular information or documents confidential, the burden of proving that a case record or a portion of a case record should be confidential rests with the party or person seeking confidentiality.
(2) Procedure For Requesting Confidentiality of a Case Record or a Portion of a Case Record in a Supreme Court Case.
(a) Case Record or Portion of Case Record That Has Already Been Determined to be Confidential. The following procedure shall be followed when the case record or a portion of the case record was determined to be confidential by the trial court, administrative agency, or other tribunal:
(1) The appealing party shall indicate on the notice of appeal form or in the appeal document, e.g., appeal from administrative agency, that the case record or a portion of the case record was determined to be confidential by the trial court, administrative agency, or other tribunal, and shall cite the authority for confidentiality, e.g., the statute, administrative or court rule, or court order providing for confidentiality. Upon filing, the portion of the case record determined to be confidential by the trial court, administrative agency, or other tribunal shall remain confidential pending review by the supreme court.
(2) Within 30 days of the appeal being filed with the supreme court, a single justice of the supreme court shall review the case record or the portion of the case record determined to be confidential by the trial court, administrative agency, or other tribunal, and shall decide whether the case record or portion of the record in question shall remain confidential in the supreme court. The justice may refer the question to the full court for a ruling.
(3) Based on the review of the single justice or the court, an order will be issued which indicates whether the case record or a portion of the case record is confidential.
(b) Cases in Which There Has Been No Prior Determination of Confidentiality. The following procedure shall be followed when a party or other person with standing seeks to have the case record or a portion of the case record determined to be confidential by the supreme court:
(1) Any party or other person with standing who seeks a determination that a case record or a portion of a case record is confidential shall file a motion to seal the case record or the portion of the case record in question. The motion shall state the authority for confidentiality, i.e., the statute, administrative or court rule providing for confidentiality, or the privacy interest or circumstance that requires confidentiality. Upon filing of the motion to seal, the case record or the portion of the case record which is the subject of the motion shall be kept confidential pending a ruling on the motion.
(2) Within 30 days of filing, a motion to seal will be reviewed by a single justice of the court who shall determine whether the case record or the portion of the case record that is the subject of the motion shall be confidential or who may refer the motion to the full court for a ruling.
(3) An order will be issued setting forth the ruling on the motion to seal.
(c) Court Action When Confidentiality is Required.
(1) The failure of a party or other person with standing to request that a case record or a portion of a case record be confidential shall not preclude the court from determining on its own motion that a statute, administrative or court rule, or other compelling interest requires that a case record or a portion of a case record proceeding be kept confidential.
(2) Before sealing a case record or a portion of a case record, a single justice or the court must determine that there is a basis for keeping the case record confidential.
(3) If a single justice or the court determines that a case record or a portion of a case record should be confidential, an order will be issued setting forth the ruling.
(d) Access to Supreme Court Orders On Confidentiality.
Every order of the supreme court that a case record or a portion of a case record is confidential shall be available for public inspection. Information which would compromise the court's determination of confidentiality, e.g., the name of a juvenile, shall be redacted.
(3) Procedure For Seeking Access To Case Records That Have Been Determined to be Confidential.
(a) A person who is neither a party nor counsel in a case and who seeks access to a case record or portion of a case record that has been determined by the supreme court to be confidential shall file a petition with the court requesting access to the record in question.
(b) Upon receipt of the petition, an order of notice shall be issued to all parties and other persons with standing in the case.
(c) A single justice of the supreme court or a judicial referee appointed by the court shall examine the case record in question to determine whether there is a basis for nondisclosure.
(d) An order shall be issued setting forth the justice's or referee's ruling on the petition, which shall be made public. In the event that the justice or referee determines that the records are confidential, the order shall include findings of fact and rulings of law that support the decision of nondisclosure.
(e) Within 10 days of the date of the clerk's notice of the justice's or referee's decision, any party or person with standing aggrieved by the decision may file a motion for review by the full court.
Adopt new Supreme Court Rule 32-A as follows:
RULE 32-A. COUNSEL IN GUARDIANSHIP AND INVOLUNTARY ADMISSION CASES.
(1) Whether retained by the defendant or appointed by a lower court, trial counsel in a guardianship case commenced by the filing of a petition pursuant to RSA 464-A:4 or RSA 464-A:12 or in an involuntary admission case commenced by the filing of a petition pursuant to RSA 135-C:36 shall be responsible for representing the defendant in the supreme court unless the supreme court relieves counsel from this responsibility for good cause shown. When the defendant clearly indicates to counsel a desire to appeal, counsel shall be responsible for the filing of a notice of appeal. Provided, however, that if counsel concludes that the appeal is frivolous, counsel must first attempt to persuade the defendant not to appeal. If, however, the defendant insists on appealing, counsel shall file the notice of appeal. To avoid violating Professional Conduct Rule 3.1, the notice of appeal should be accompanied by a motion to withdraw indicating that counsel has forwarded a copy of the notice of appeal to the client and has advised the client of the right to file a supplement to the notice of appeal raising any additional issues. See In re Richard A., 146 N.H. 295 (2001).
(2) A motion to withdraw as counsel on appeal in a guardianship case commenced by the filing of a petition pursuant to RSA 464-A:4 or RSA 464-A:12 or in an involuntary admission case commenced by the filing of a petition pursuant to RSA 135-C:36 must state reasons that would warrant the grant of leave to withdraw.
(3) Trial counsel shall continue to participate until and unless the motion to withdraw is approved by the supreme court.
(4) Indigent cases appealed to the supreme court must be accompanied by petitions for either initial assignment or continued assignment of counsel together with a current financial affidavit or a photocopy of same.
(5) Maximum counsel fee for appeals to the supreme court in assigned counsel cases shall be $1,500.00.
Amend Supreme Court Rule 37(10) by deleting it and replacing it with the following:
(10) Reciprocal Discipline:
(a) Upon being disciplined in another jurisdiction, an attorney admitted to practice in this State shall immediately notify the committee of the discipline. Upon notification from any source that an attorney admitted to practice in this State has been disciplined in another jurisdiction, the committee shall obtain a certified copy of the disciplinary order and shall file it with the court.
(b) Upon receipt of a certified copy of an order demonstrating that an attorney admitted to practice in this State has been disciplined in another jurisdiction, the court may enter a temporary order imposing the identical discipline or, in its discretion, suspending the attorney pending the imposition of final discipline. The court shall forthwith issue a notice directed to the attorney and to the committee containing:
(1) A copy of the order from the other jurisdiction; and
(2) An order directing that the attorney or committee inform the court, within thirty days from service of the notice, of any claim by the lawyer or committee predicated upon the grounds set forth in subparagraph (d), that the imposition of the identical discipline in this State would be unwarranted and the reasons for that claim.
(c) In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this state shall be deferred until the stay expires.
(d) Upon the expiration of thirty days from service of the notice pursuant to subparagraph (b), the court shall issue an order of final discipline imposing the identical discipline unless the attorney or committee demonstrates, or the court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) The imposition of the same discipline by the court would result in grave injustice; or
(3) The misconduct established warrants substantially different discipline in this State.
If the court determines that any of those elements exists, it shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this State to demonstrate that the imposition of identical discipline is not appropriate.
(e) In all other aspects, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this State.
Amend Supreme Court Rule 50(1)A by adding the parenthetical, ("financial institution"), to the end of the first sentence of said subsection, so that said subsection as amended shall read as follows:
A. An interest-bearing trust account shall be established with any bank or savings and loan association authorized by federal or State law to do business in New Hampshire and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation ("financial institution"). Funds in each interest-bearing trust account shall be subject to withdrawal upon demand.
Amend Supreme Court Rule 50(2)B by deleting it and replacing it with the following:
B. All cash property of clients received by attorneys shall be deposited in one or more clearly designated trust accounts (separate from the attorney's own funds) in financial institutions. Any attorney depositing client funds into an out-of-state financial institution shall file a written authorization with the Clerk of the Supreme Court authorizing the Court or its agents to examine and copy such out-of-state account records. Under no circumstances may any attorney use out-of-state banks other than those located in Maine, Vermont, Massachusetts, or the state in which the attorney's office is situated, without obtaining prior written approval from the Supreme Court.
Amend Superior Court Rule 36 by amending the third paragraph of said rule, which begins with the words "The party serving the interrogatories," so that said paragraph as amended would state as follows:
The party serving the interrogatories shall furnish the answering party with an original and two copies of the interrogatories. The interrogatories shall be so arranged that after each separate question shall appear a blank space reasonably calculated to enable the answering party to have his answer typed in. The parties may agree to transmit interrogatories electronically or by computer disk, enabling the answering party to provide answers directly after each separate question using the party's available word processing technology. In the event of such an agreement, the requirement of providing space between each question sufficient to manually insert answers is obviated.