THE STATE OF NEW HAMPSHIRE
SUPREME COURT OF NEW HAMPSHIRE
O R D E R
R-2002-0002, In re June and July 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. Supreme Court Rule 3 re definition of "Clerk." (Appendix A)
2. Supreme Court Rule 21 re authority of clerks and single justices to rule upon motions. (Appendix B)
3. Supreme Court Rule 42 re admission to the State bar. (Appendix C)
4. Supreme Court Rule 48 re maximum fees for appointed counsel in non-criminal cases. (Appendix D)
5. Supreme Court Rule 49 re fees in supreme court [Note: The advisory rules committee made no recommendation as to the amount of the fee for "Entry of Motion for Admission to Bar Without Examination" – the amount set forth in the proposal to amend Rule 49 set out in appendix E is proposed by the supreme court]. (Appendix E)
6. Supreme Court Rule 50-A(1) re filing of trust account certificates by inactive attorneys. (Appendix F)
7. Supreme Court Rule 56 re performance evaluation of judges. (Appendix G)
B. SUPERIOR COURT RULES
1. Superior Court Rule 100 re notice of alibi. (Appendix H)
2. Superior Court Rule 101 re notice of criminal defense. (Appendix I)
3. Superior Court Rule 169 re fees. (Appendix J)
C. SUPERIOR COURT ADMINISTRATIVE RULES
1. Superior Court Administrative Rule 3-1(d) re transcripts. (Appendix K)
D. RULES OF PROFESSIONAL CONDUCT
1. Professional Conduct Rule 7.4(c) re communications of fields of practice. (Appendix L)
E. RULES OF EVIDENCE
1. Rule of Evidence 512 re comments upon or inferences from claims of privilege. (Appendix M)
On or before Monday, September 30, 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:
The current rules of the New Hampshire state courts are also available on the Internet.
July 25, 2002
Eileen Fox, Clerk of Court
Supreme Court of New Hampshire
Amend Supreme Court Rule 3, by adopting on a permanent basis the following definition of "Clerk," which was adopted on a temporary basis by order dated December 5, 2001:
"Clerk": Where the context refers to the clerk of a lower court, "clerk" includes a clerk of a lower court, a register of probate, or the administrative agency official who is the equivalent of a clerk of court or who is charged with performing the duties associated with a clerk of court, and their respective assistants and deputies; where the context refers to the clerk of the supreme court, "clerk" includes his or her assistants and deputies.
Amend Supreme Court Rule 21, by adopting on a permanent basis the following paragraphs 7, 8 and 9, which were adopted on a temporary basis by order dated December 5, 2001:
(7) A single justice may rule on all non-dispositive motions and may issue any non-dispositive order. A single justice may rule upon requests to withdraw or dismiss an appeal filed by the appellant, may dismiss an appeal pursuant to Rule 5(4), and may dismiss an appeal without prejudice upon procedural grounds. Any order of a single justice shall state which justice so ruled.
(8) The clerk of the supreme court may rule on all motions relating to scheduling except for motions for expedited consideration, and may issue briefing and other scheduling orders. The clerk may grant or refer to the court dispositive motions to which all parties consent and non-dispositive motions to which no objection is filed or all parties consent. With respect to other motions filed between the issuance of the scheduling order pursuant to Rule 12-B and the date of oral argument, the clerk may refer such motions to the court or issue an order to the effect that no ruling will be made on the motion prior to oral argument but that the parties may address the motion during their allotted oral argument time. Any order of the clerk shall state that it is issued pursuant to this rule.
(9) Any motion to reconsider an order issued by a single justice or the clerk shall be filed within ten days from the date of the issuance of the order. A motion to reconsider an order issued by the clerk shall be decided by a single justice or by the court.
Amend Supreme Court Rule 42 by deleting said rule in its entirety, and adopting in its place the following:
Rule 42. ADMISSION TO THE BAR; COMMITTEE ON CHARACTER AND FITNESS
(1) Unless otherwise provided in these rules, all admissions to the bar shall be by examination only. A board of bar examiners consisting of thirteen (13) or more members of the bar of the State will be appointed to examine persons desiring to be admitted to the bar. Appointments to the Board of Bar Examiners shall be for terms of three (3) years.
(2) There shall be two (2) complete examinations annually to be given at the Supreme Court Building in Concord or such other place as may be determined by the court. The examinations shall be in such form and length, and shall cover such subjects as the board of bar examiners may determine. One examination shall be held on the last Wednesday of February and the day following; and the second examination shall be held on the last Wednesday of July and the day following.
(3) (a) Any person domiciled in the United States of the age of 18 years shall be eligible to apply for examination provided he or she is possessed of the qualifications hereinafter provided.
(b) An applicant whose disability requires testing accommodations shall submit a written request to the clerk of the supreme court at the time that the applicant files the petition and questionnaire as provided in Rule 42(5)(e). A copy of the request shall be submitted at the same time to the chair of the board of bar examiners. The written request shall be submitted pursuant to the testing accommodations policy approved by the supreme court and shall describe:
(i) The type of accommodation requested; and
(ii) The reasons for the requested accommodation, including medical documentation in a format set forth in the policy referenced above.
(c) The request shall be ruled upon in the first instance by the chair of the board of bar examiners, and the applicant shall be notified of the decision. A denial or modification of a request for testing accommodations by the chair may be appealed to the board of bar examiners in accordance with the procedures set forth in the testing accommodations policy. The decision on appeal constitutes a final decision of the board. Review of the board's decision may be requested from the supreme court.
(4)(a) Every such applicant must furnish satisfactory proof that before beginning the study of law he successfully completed at least three (3) years of work required for a bachelor's degree in an accredited college.
(b) Every such applicant must have graduated from a law school approved by the American Bar Association having a three (3) year course and requiring students to devote substantially all their working time to study, called a full-time law school, or from a law school approved by the American Bar Association having a course of not less than four (4) school years equivalent in the number of working hours to a three (3) year course in a full-time law school and in which students devote only part of their working time to their studies, called a part-time law school. Notwithstanding the foregoing sentence, a person who has graduated from a law school in an English-speaking, common law country and who has pursued a course of study substantially equivalent to that of a law school approved by the American Bar Association shall be eligible to apply for examination provided that such person is (a) a member in good standing of the bar of that country, or (b) the holder of a master's degree from a law school approved by the American Bar Association or (c) a member of the bar of one of the States of the United States who was admitted after examination and is in good standing. A combination of study in full-time and part-time law schools will be accepted only if such law schools meet the above requirements, and the applicant shall have graduated from one or the other. Study in any law school which conducts its courses by correspondence or does not require attendance of its students at its lectures or classes shall not constitute compliance with the rule.
(5)(a) All persons who desire to be admitted to practice law shall be required to establish their moral character and fitness to the satisfaction of the Standing Committee on Character and Fitness of the Supreme Court of New Hampshire in advance of such admission.
(b) The standing committee on character and fitness shall be appointed by the Supreme Court of New Hampshire. Its members shall be seven (7) in number and shall include (i) six (6) members of the New Hampshire Bar Association as follows: (a) one (1) member of the board of bar examiners; (b) one (1) member of the committee on professional conduct; (c) the attorney general of New Hampshire or his deputy; (d) the clerk of the supreme court or his deputy; and (e) two (2) other members of the New Hampshire Bar Association, one of whom shall be designated chairman of the committee; and (ii) one (1) layperson.
(c) The terms of the attorney general and of the clerk of the supreme court as members of the standing committee on character and fitness shall be coterminous with their terms of office; and, in the absence of either the attorney general or the clerk of the supreme court, his deputy is authorized to act as an alternate, exercising all the powers of an appointed member of the committee. Each other member of the standing committee shall be appointed for a term of three (3) years and shall be eligible for reappointment. Members of the committee shall receive no compensation for their services, but their reasonable expenses shall be funded from the fee (hereinafter outlined) paid by those persons seeking admission to practice law in the State of New Hampshire.
(d) Each person shall be immune from civil liability for all of his statements made in good faith to the committee, the office of the attorney general or to this court or given in any investigation or proceedings pertaining to the application. The protection of this immunity does not exist as to statements made to others. The committee, its staff, counsel, investigators and any members of any hearing panels, shall be immune from civil liability for any conduct arising out of the performance of their duties.
(e) Persons seeking admission to the practice of law: (i) by examination shall, not later than May 1 of the year in which they intend to take a July examination and not later than December 1 next preceding the year in which they intend to take a February examination, and (ii) by motion shall, not later than the date upon which the motion for admission is filed with the supreme court, file with the committee on character and fitness and with the clerk of the supreme court the petition and questionnaire on a form to be furnished by the clerk. The questionnaire shall also contain a certificate signed by two (2) persons certifying the applicant's good moral character. The questionnaire shall be executed by the applicant under oath. The foregoing requirements as to the time of filing may be waived by the committee for good cause shown. If the applicant is applying for readmission, the administrator shall cause a notice to be published in a newspaper with general circulation, as well as in the New Hampshire Bar News, that the applicant has applied for readmission. The notice shall invite anyone to comment on the application by submitting said comments in writing to the administrator within twenty (20) days. All comments shall be made available to the applicant. Where feasible, the administrator shall give notice to the original complainant.
(f) Any person who seeks admission to practice law in the State of New Hampshire shall at all times have the burden of proving his good moral character before the committee on character and fitness, and the Supreme Court of New Hampshire. The failure of an applicant to answer any question on the petition and questionnaire or any question propounded by any member of the committee on character and fitness of the supreme court, or to supply any documentary material requested by them or any of them, shall justify a finding that the applicant has not met the burden of proving his good moral character.
(g) Any person who seeks admission to practice law in the State of New Hampshire shall agree to waive all rights of privacy with reference to any and all documentary material filed or secured in connection with his application. The applicant shall also agree that any such documentary material, including the character questionnaire, may be offered into evidence, without objection, by the committee on character and fitness in any proceeding in regard to the applicant's admission to the practice of law.
(h) All matters referred to the committee for investigation shall be confidential. No member of the committee at any time, either while a member of the committee or thereafter, shall disclose any matter in any file, except at the request of the committee, or the supreme court or unless legally required to do so. All minutes or records circulated to members of the committee shall be kept confidential. All records relating to matters referred to the committee shall be retained in the committee's permanent files.
(i) Upon receiving the petition and questionnaire, the committee on character and fitness shall promptly (a) verify such facts stated in the questionnaire, communicate with such references given therein, and make such further investigation as it may deem desirable or necessary; (b) if it deems necessary, arrange for a personal interview with the applicant; (c) consider the character and fitness of the applicant to be admitted to the practice of law; and (d) transmit to the supreme court a report of its investigation and its recommendation in regard to the character and fitness of the applicant for admission to the practice of law.
(j) If the recommendation of the committee on character and fitness is against admission, the report of the committee shall set forth the facts upon which the adverse recommendation is based and its reasons for rendering an adverse recommendation. The committee shall promptly notify the applicant about the adverse recommendation and shall give the applicant an opportunity to appear before it and to be fully informed of the matters reported to the court by the committee, and to answer or explain such matters.
(k) If, following such appearance, the committee is still of the opinion that an adverse report should be made on the application, it shall first give the applicant the privilege of withdrawing the application. If the applicant elects not to withdraw the application, and the second report and recommendation of the committee to the court is against approval of the application, the court, upon receipt of the report with the adverse recommendation by the committee, may grant the application or shall require the applicant to show cause why his application should not be denied.
(l) The fee for the character and fitness investigation shall be in such amount as the supreme court shall from time to time determine. This sum shall be paid to the treasurer of the New Hampshire Bar Association in addition to the fee paid to the clerk of the supreme court for the taking of the examination for admission to practice or for the filing of the motion for admission to practice without examination. Both fees shall be nonrefundable.
(6) A person who fails twice in an examination for admission to the bar will not be permitted to take another examination until the court, upon special consideration of the case, shall make an order to that effect. Upon filing a motion requesting such permission and representing that a recognized bar review course will be taken prior to the next examination, a person who has failed the examination twice or three times will be granted permission to take it a third or fourth time, as the case may be. Such permission shall be conditional on the applicant's filing with the court, prior to sitting for the examination, an affidavit that the course has been successfully completed. A person who has failed four times will not be permitted to retake the examination. Provided, however, that any person who has failed four times prior to [insert effective date of this amendment] may be permitted to retake the examination one time after said date upon compliance with the requirements set forth above for a person who has failed twice. A person who has failed four times prior to said date and failed once after said date will not be permitted to retake the examination.
(7)(a) Each person seeking to practice law in New Hampshire is required to attend a practical skills course to be presented annually by the New Hampshire Bar Association. The course will assist new admittees in developing basic lawyering skills and in gaining practical knowledge of New Hampshire practice and procedures. Attendance is required and each new admittee will be required to execute an affidavit stating that he or she has attended each session of the course unless otherwise excused by the supreme court. A special committee of the New Hampshire Bar Association Continuing Legal Education Committee will administer the practical skills course but no test will be required. Each new admittee will be licensed to practice law subject to the condition that he or she complete the practical skills course within two years of the date of admission to the bar (unless the admittee satisfies the requirements of paragraph (b) or, in exceptional instances, a longer period is approved in writing by the court) or his or her license to practice shall be revoked.
(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.
(c) Attendance at the practical skills course means, for all new admittees, personal attendance at all sessions of the course.
(d) Exemptions from the practical skills course requirements, or any portion thereof, shall be granted only upon written application filed with the court, setting forth the exceptional circumstances believed to justify the requested exemption.
(e) The practical skills course requirement shall apply to all persons admitted to practice after March 5, 1980, and the provisions of paragraphs (b), (c) and (d) here of are expressly made applicable to all persons subject to such requirement.
(f) In addition to the other requirements of this rule, all persons who desire to be admitted to practice law shall produce evidence of satisfactory completion of the Multistate Professional Responsibility Examination. The Board of Bar Examiners shall determine the minimum score level which will establish satisfactory completion of the Multistate Professional Responsibility Examination, wherever such satisfactory completion may be required by these rules.
(8) Except upon approval of the supreme court for good cause shown, the oath of admission required by RSA 311:6 must be administered within two years from the time the applicant has been notified of the successful passing of the bar examination or within two years of the date upon which the motion for admission without examination has been granted. If the oath of admission is not so administered, the examination must be taken again and passed or the applicant must file a new motion for admission without examination.
(9) All persons admitted to practice law shall notify the New Hampshire Bar Association immediately in writing of all changes of residence address and address of principal office.
(10) (a) An applicant who is domiciled in the United States, is of the age of 18 years, and meets the following requirements may, upon motion, be admitted to the practice of law without taking and passing the New Hampshire bar examination. The applicant shall:
(i) Have been admitted by bar examination to practice law in another state, territory, or the District of Columbia;
(ii) Have graduated from a law school approved by the American Bar Association having a three (3) year course and requiring students to devote substantially all their working time to study, called a full-time law school; from a law school approved by the American Bar Association having a course of not less than four (4) school years equivalent in the number of working hours to a three (3) year course in a full-time law school and in which students devote only part of their working time to their studies, called a part-time law school; or from a law school in an English-speaking, common law country having pursued a course of study substantially equivalent to that of a law school approved by the American Bar Association. A combination of study in full-time and part-time law schools will be accepted only if such law schools meet the above requirements, and the applicant shall have graduated from one or the other. Study in any law school which conducts its courses by correspondence or does not require attendance of its students at its lectures or classes shall not constitute compliance with the rule;
(iii) Have been primarily engaged in the active practice of law in one or more states, territories, or the District of Columbia for five of the seven years immediately preceding the date upon which the motion is filed;
(iv) Have either:
(A) taken and passed the bar examination in another state, territory, or the District of Columbia that allows admission without examination of persons admitted to practice law in New Hampshire under circumstances comparable to those set forth in this rule; or
(B) been primarily engaged in the active practice of law in a state, territory, or the District of Columbia for five of the seven years immediately preceding the date upon which the motion is filed that allows admission without examination of persons admitted to practice law in New Hampshire under circumstances comparable to those set forth in this rule;
(v) Produce evidence of satisfactory completion of the Multistate Professional Responsibility Examination;
(vi) Establish that the applicant is currently a member in good standing in all jurisdictions where admitted;
(vii) Establish that the applicant is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any jurisdiction;
(viii) Establish that the applicant possesses the character and fitness to practice law in New Hampshire; and
(ix) Designate the clerk of the supreme court for service of process.
(b) For the purposes of Rule 42, the "active practice of law" shall include the following activities:
(i) Representation of one or more clients in the private practice of law;
(ii) Service as a lawyer with a local, state, or federal agency, including military service;
(iii) Teaching law at a law school approved by the American Bar Association;
(iv) Service as a judge in a federal, state, or local court of record;
(v) Service as a judicial law clerk; or
(vi) Service as corporate counsel.
(c) For the purposes of Rule 42, the "active practice of law" shall not include work that, as undertaken, constituted the unauthorized practice of law in the jurisdiction in which it was performed or in the jurisdiction in which the clients receiving the unauthorized services were located.
(11) An applicant who is domiciled in the United States, is of the age of 18 years, and meets the following requirements may, upon motion, be admitted to the practice of law without taking and passing the New Hampshire bar examination, provided that the State of Vermont allows admission without examination of persons admitted to practice law in New Hampshire under circumstances comparable to those set forth in this rule. The applicant shall:
(a) Be licensed to practice law in the State of Vermont and be an active member of the Vermont bar;
(b) Have been actively engaged in the practice of law in Vermont for no less than three years immediately preceding the date upon which the motion is filed;
(c) Establish that the applicant is currently a member in good standing in all jurisdictions where admitted;
(d) Establish that the applicant is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any jurisdiction;
(e) Establish that the applicant possesses the character and fitness to practice law in New Hampshire; and
(f) Have completed at least fifteen hours of continuing legal education on New Hampshire practice and procedure in courses approved by the NHMCLE Board within one year immediately preceding the date upon which the motion is filed and be certified by the NHMCLE Board as satisfying this requirement.
(12) An applicant who has failed the New Hampshire bar examination within five years of the date of filing a motion for admission without examination shall not be eligible for admission on motion. An applicant who is not permitted to retake the New Hampshire bar examination pursuant to Rule 42(6) shall not be eligible for admission on motion. An applicant who has resigned from the New Hampshire bar shall not be eligible for admission on motion, but may be eligible for readmission upon compliance with the requirements of Rule 37(12-a).
(13) In addition to anything required above, the supreme court may require any applicant under this rule to complete such applications or submit such information as it deems relevant.
Amend Supreme Court Rule 48(2)(e), 48(2)(h), and 48(2)(i) by deleting said subparagraphs and replacing them with the following, so that Rule 48(2) as amended shall state as follows:
(2) Fees. Maximum compensation is limited as follows:
(a) Time properly chargeable to case: $60 per hour. The paralegal hourly rate shall not exceed $35.00 and shall be included with fees of counsel for the purposes of determining the maximum fee on any case. Travel time is not a compensable event unless expressly authorized by the court in advance for exceptional circumstances.
(b) Maximum fee per day (for all cases): $400.
(c) Maximum fee for all juvenile cases pursuant to RSA chapters 169-B, C, and D: $1,200.
(d) De novo appeal of juvenile cases pursuant to RSA chapters 169-B, C, and D: $1,000.
(e) Maximum fee for guardianships under RSA chapter 464-A prior to preparation of any notice of appeal: $600. Maximum fee for guardianships under RSA chapter 464-A for preparation and filing of notice of appeal: $150.
(f) Maximum fee for annual review hearings for guardianships: $200.
(g) Maximum fee for TPR cases pursuant to RSA chapter 170-C: $1,200.
(h) Maximum fee for involuntary admissions under RSA chapter 135-C prior to preparation of any notice of appeal: $400. Maximum fee for involuntary admissions under RSA chapter 135-C for preparation and filing of notice of appeal: $150.
(i) Appeals to the supreme court in guardianships under RSA chapter 464-A and involuntary admissions under RSA chapter 135-C: $1,350. Appeals to the supreme court in all juvenile cases and any matters within the subject matter jurisdiction of the probate court other than guardianships under RSA chapter 464-A and involuntary admissions under RSA chapter 135-C: $1,500.
(j) Maximum fee for court review hearings of juvenile cases pursuant to RSA 169-B and D: $180.
Only upon express, written finding for good cause and exceptional circumstances by the court will the maximum fees be exceeded or will additional fees be authorized. All petitions to exceed the maximum fee guidelines must be approved prior to the guidelines being exceeded.
When counsel represents more than one client on any particular day, the hours spent shall be allocated accordingly. Representation of more than one client on the same day and in the same court shall be noted on the bills submitted. All bills shall be reviewed by the judge who presided over the case, if practicable.
The adequacy of the rates prescribed by this rule may, upon request of the supreme court, be reviewed periodically by the advisory committee on rules.
Amend Supreme Court Rule 49 by deleting said rule and replacing it with the following:
Rule 49. FEES IN SUPREME COURT
A. Entry of Appeal $125.00 B. Petition for Original Jurisdiction
(1) Original petition for writ of habeas corpus
$ 0 (No fee)
(2) All other petitions for original jurisdiction
$125.00 C. Certification of Record to Federal Courts $75.00 D. Bar Examination Fee $140.00 E. Character and Fitness Investigation Fee $140.00 F. Certificate of Admission $ 5.00 G. Entry of Motion for Admission to Bar Without Examination $ 140.00
Amend Supreme Court Rule 50-A(1) by deleting the first paragraph of Rule 50-A(1) and replacing it with the following, so that Rule 50-A in its entirety as amended shall state as follows::
Rule 50-A. CERTIFICATION REQUIREMENT.
(1) In order to assure compliance with the requirements of Rule 50 and in order to ascertain that the records and accounts described in Rule 50 are properly maintained, all attorneys licensed to practice in the State of New Hampshire, whether in private practice or not, who were in the active practice of law at any time during the twelve (12) months immediately preceding August 1st, shall individually or through their firm organizations file an annual Certificate of Compliance and, unless they have filed a Notice of Declination under Rule 50(1)F, Authorization to Financial Institutions on or before August 1st of each year. The Certificate of Compliance shall certify to one of three things:
A. That the attorney does not maintain a trust account and does not have in his possession any assets or funds of clients;
B. That client funds maintained by the attorney are held in accounts in full compliance with the requirements of Rule 50; or
C. That the attorney is willing to submit to a spot compliance audit to his trust accounts at his own expense.
A prescribed Certificate of Compliance form will be sent to the attorney annually by the New Hampshire Bar Association with the attorney's annual dues assessment. The self-certification may be completed by the attorney or by a private accountant employed for this purpose by the attorney. The completed Certificate of Compliance forms shall be filed with the New Hampshire Supreme Court by delivery to the New Hampshire Bar Association by August 1st of each year. The self-certification procedure shall be supplemented by annual compliance checks by an accountant selected by the Supreme Court. The accountant's purpose in conducting a compliance check will be to determine whether the minimum standards set forth in Rule 50 are being maintained. All information obtained by the accountant shall remain confidential except for purposes of transmitting notice of violations to the Professional Conduct Committee or the Supreme Court. The information derived from such compliance checks shall not be disclosed by anyone in such a way as to violate the attorney-client privilege except by express order from the Supreme Court. The certification and authorization or declination requirements of this rule shall not apply to any full-time judge, full-time marital master, or full-time supreme, superior, and district court clerk or deputy clerk, except that the certification requirement shall apply where such judge, marital master, clerk, or deputy clerk was in the active practice of law at any time during the twelve (12) months immediately preceding August 1st of any year.
The Authorization to Financial Institutions shall be signed by an authorized signer for the accounts listed. The completed authorization shall be returned to the New Hampshire Bar Foundation by August 1 of each year.
(2) An attorney who fails to comply with the requirements of Rule 50 with respect to the maintenance, availability, and preservation of accounts and records, who fails to file the required annual Certificate of Compliance, or the annual Authorization to Financial Institutions or a Notice of Declination, or who fails to produce trust account records as required shall be deemed to be in violation of Rule 1.15 of the Rules of Professional Conduct and the applicable Supreme Court Rule. Unless upon petition to the Supreme Court an extension has been granted, failure to file the required annual Certificate of Compliance by August 1st shall, in addition, subject the attorney to one or more of the following penalties and procedures:
A. A fine of $100 for each month or fraction thereof after August 1st in which the Certificate of Compliance remains unfiled;
B. Audit of the attorney's trust accounts and other financial records at the expense of the attorney, if the certificate remains unfiled on December 1st; and
C. Based upon results of the audit, initiation of proceedings for further sanctions, including suspension.
(3) Except for requirements of Rule 50, subparagraph (2)A, requiring the inclusion of probate accounts in the index of trust accounts, the provisions of Rule 50, paragraph (2), and of this Rule 50-A shall not apply to probate accounts (including estate, testamentary trusts, guardian, and conservator accounts).
(4) The Supreme Court may at any time order an audit of such financial records or trust accounts of an attorney, and take such other action as it deems necessary to protect the public.
Amend Supreme Court Rule 56, adopted on a temporary basis on March 27, 2001, by amending subsection IV(B)(4), and adopting the rule, as amended, as a permanent rule as follows:
RULE 56. PERFORMANCE EVALUATION OF JUDGES
(I) Administration and Implementation of a Performance Evaluation Program
(A) The supreme court shall be responsible for the overall administration of a judicial performance evaluation program. On or before June 30 of each year, it shall prepare an annual report on the implementation and operation of the judicial performance evaluation program for public distribution and filing with the governor, the speaker of the house, the president of the senate and the chairpersons of the house and senate judiciary committees. The report shall include a summary of the number of evaluations performed by each court, the number of questionnaires distributed and returned, and, without identifying individual judges who were evaluated, a summary of the results of the evaluations.
(B) The administrative judges of the superior, district and probate courts shall be responsible for implementing the judicial performance evaluation program in those courts. They shall have the authority and the duty to:
(1) consult with the supreme court about the design of the questionnaires to be distributed to a representative selection of attorneys, parties, witnesses, jurors, court personnel and others who have appeared before the judge being evaluated, to assess whether the judge has met the applicable judicial performance standards during the evaluation period;
(2) consult with the supreme court about the adoption of written protocol setting forth the procedure for distributing the questionnaires described in subsection (1), including the number of questionnaires to be distributed, the process for selecting the persons who will be sent the questionnaires, the manner for distribution and return of the questionnaires and the process for compiling the results of the questionnaires;
(3) consult with the supreme court about the design of a self-evaluation form to be completed by each judge being evaluated, which attempts to assess whether the judge has met the applicable judicial performance standards during the evaluation period;
(4) consult with the supreme court about the judicial performance standards applicable to the judges of each court;
(5) consult with the supreme court about the development or identification of suitable programs to assist judges who have not met the applicable judicial performance standards to do so; and
(6) consult with the supreme court about the advisability of other administrative action to address the performance problems of any judge that are identified through the evaluation process or otherwise.
(II) Evaluation of Trial Court Judges
(A) Persons Performing Evaluations; Frequency of Evaluations
The administrative judge of the superior court, or the administrative judge’s designee, shall evaluate each justice of the superior court a minimum of once every three years.
The administrative judge of the district court, or the administrative judge’s designee, shall evaluate each full-time and part-time district court judge a minimum of once every three years.
The administrative judge of the probate court, or the administrative judge’s designee, shall evaluate each full-time and part-time probate court judge a minimum of once every three years.
A panel consisting of the chief justice of the supreme court and two associate justices of the supreme court shall evaluate the administrative judges of the superior, district and probate courts a minimum of once every three years.
(B) Components of Evaluation
The judicial evaluation process is intended to evaluate a judge’s performance in relation to the applicable judicial performance standards. The person performing the evaluation shall attempt to obtain balanced information from multiple sources to accurately assess the judge's performance during the evaluation period. The evaluation process of an individual judge shall include, but not be limited to, the following steps:
(1) review of complaints about the judge that have been docketed by the supreme court's committee on judicial conduct and that are public records under Rule 40;
(2) review of the results of the completed questionnaires sent to a representative sample of persons who appeared before the judge during the evaluation period;
(3) review of the self-evaluation form completed by the judge; and
(4) review of any complaints or inquiries about the judge received by the administrative judge or chief justice.
(C) Results of Evaluation and Meeting with Judge Who Has Been Evaluated
(1) The person performing the evaluation shall prepare a summary of the results of the evaluation, which describes the judge's performance in relation to the judicial performance standards, and which identifies any judicial performance standard that has not been met and sets forth the steps the judge must take to improve his or her performance.
(2) The person performing the evaluation shall meet with the judge who has been evaluated to discuss the results of the evaluation, to advise the judge whether the judge has met the applicable judicial performance standards, and, if not, to identify the steps that the judge must take to improve his or her performance.
(3) At the conclusion of the meeting, the judge who has been evaluated shall sign the evaluation summary, indicating that he or she has been informed of the results of the evaluation and has been given a copy of the evaluation summary.
(4) Within 30 days of the meeting, the judge who has been evaluated may submit a written response to the evaluation. The response shall be kept with the evaluation summary.
(D) Failure to Meet Judicial Performance Standards
(1) If the person performing the evaluation concludes that a judge has failed to meet a judicial performance standard, he or she shall prepare a written summary identifying the performance standard that has not been met and specifying the steps that the judge must take to improve his or her performance and the time in which the steps must be taken.
(2) If a judge has been determined not to have met a judicial performance standard, then the chief justice or the administrative judge of the court on which the evaluated judge serves shall, to the extent possible, assist the judge to comply with the steps set forth in the evaluation summary for improving the judge's performance.
(3) If a judge has failed to take the steps to improve his or her performance specified in the evaluation summary, the chief justice or the administrative judge of the court on which the judge serves may take steps to correct the non-compliance, including administrative discipline, and may take whatever other steps are necessary to ensure compliance and/or may report the failure to the committee on judicial conduct.
(III) Evaluation of Supreme Court Justices
The supreme court shall design a questionnaire to be distributed annually to a representative selection of attorneys and parties who appeared before the court to assess the performance of the court during the year.
The court will adopt relevant objective appellate court performance standards and regularly evaluate its performance according to such standards.
Each justice shall complete a self-evaluation form designed to assess whether the justice has met the applicable judicial performance standards during the evaluation period.
The justices shall meet annually to discuss the results of the questionnaires and to evaluate each other’s performance.
(A) General Rule. Except as otherwise provided in this section, all records and information obtained and maintained during the judicial performance evaluation process shall be confidential and shall not be disclosed. The identity of persons who furnished information concerning judges under the program shall be confidential and shall not be disclosed.
(B) Exceptions to Confidentiality Requirement.
(1) Disclosure to Judge Being Evaluated. Information about the results of the questionnaires or other components of the evaluation process of an individual judge may be disclosed to the judge for the purpose of improving his or her judicial performance, except that the identity of persons furnishing information about the judge shall not be disclosed.
(2) Disclosure to Other Judges Assisting in Evaluation Process. The person performing the evaluation may share the results of the evaluation with other judges for the purpose of assisting in the evaluation process.
(3) If A Judge Fails to Meet Judicial Evaluation Standards or Purposely Fails to Complete Improvement Programs. If a judge fails to meet judicial performance standards for two consecutive performance evaluations, or if a judge purposely fails to complete the steps for improving his or her performance specified in the evaluation summary, the judge shall be deemed to have waived any right to confidentiality provided for by this rule, and the results of the judge's evaluations shall become public, with the exception of the identity of persons furnishing information about the judge.
(4) If A Judge Is Being Considered or Is Nominated for Another Judicial Position. If a judge is being considered for another judicial position, the judge may authorize the release of the results of his or her judicial performance evaluations to the governor and to any agency or commission authorized to investigate the qualifications of judicial candidates, provided that they shall be required to keep the contents of the evaluations in strict confidence. Upon nomination of a judge, the results of his or her judicial performance evaluations shall be made available to the governor and executive council upon request. The contents of such evaluations shall be kept in strict confidence by the governor and executive council.
(V) Retention of Records of Judicial Performance Evaluations
The judicial performance evaluation summaries of a judge shall be retained while the judge remains in state judicial service.
Amend Superior Court Rule 100 by deleting "within 10 days after the entry of a not guilty plea" and replacing it with "in accordance with the time limitations in Rule 98" so that said rule as amended shall state as follows:
100. If a defendant intends to rely upon the defense of alibi, he shall in accordance with the time limitations in Rule 98 notify the prosecution in writing of such intention and file a copy of such notice with the Clerk. The notice of alibi shall be signed by the defendant and shall state the specific place at which he claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.
Within 10 days after the receipt of such notice of alibi from the defendant, the prosecution shall furnish the defendant, or his counsel, in writing with a list of the names and addresses of the witnesses upon whom the prosecution intends to rely to establish the defendant's presence at the scene of the alleged offense.
If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information required by this rule, the party shall forthwith notify the other party, or his counsel, of the existence and identity and address of such additional witness.
Upon the failure of either party to comply with the requirements of this rule, the Court may exclude the testimony of any undisclosed witness offered by such party as the defendant's absence from, or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf concerning the alibi notwithstanding he has not filed notice.
The Court may waive the requirements of this rule for good cause shown.
Amend Superior Court Rule 101 by deleting "within 10 days after the entry of a not guilty plea" and replacing it with "in accordance with the time limitations in Rule 98" so that said rule as amended shall state as follows:
101. If a defendant intends to claim any defense specified by the Criminal Code, a notice of such intention setting forth the grounds therefor shall be filed with the Court, with a copy of same going to the prosecution, in accordance with the time limitations in Rule 98 or within such further time as the Court may order for good cause shown. If the defendant fails to comply with this rule, the Court may exclude any testimony relating to such defense or make such other order as the interest of justice requires.
Amend Superior Court Rule 169 by deleting section A and replacing it with the following section A, so that Rule 169 A as amended shall state as follows:
A. Original Entries:
(1) Original Entry of any Action at Law or Equity except
a petition for writ of habeas corpus; Original Entry of all
Marital Matters, including Order of Notice and Guardian
ad Litem Fee; Transfer; the filing of a foreign judgment
pursuant to RSA 524-A; or any Special Writ $125.00
(2) Original Entry of a petition for writ of habeas corpus $ 0 (no fee)
Amend Superior Court Administrative Rule 3-1(d) by deleting the last sentence of said paragraph and replacing it with the following, so that Rule 3-1(d) as amended shall state as follows:
d. Requests by Non-Party. In the case of a non-party, the Clerk will request from the stenographer an estimate of the number of pages in the requested transcript, determine the cost of preparing an original and such copies as ordered, plus any additional costs which may be necessary, and notify the person requesting the transcript that a deposit is required in an amount sufficient to cover the cost thereof. Upon receipt of the deposit, the Clerk shall notify the stenographer to prepare the transcript, and shall notify counsel of record to that proceeding that a copy of the transcript was requested by a non-party, that a deposit has been received, and the name and address of the non-party requesting the transcript.
Adopt on a permanent basis Rule 7.4(c) of the Rules of Professional Conduct, which was adopted on a temporary basis by order dated December 18, 2001, so that Rule 7.4 shall state as follows:
Rule 7.4. Communications of Fields of Practice
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist except as follows:
(a) a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "patent attorney" or a substantially similar designation;
(b) a lawyer engaged in admiralty practice may use the designation "admiralty," "proctor in admiralty" or a substantially similar designation; and
(c) a lawyer who is certified as a specialist in a particular field of law by an organization that has been accredited by the American Bar Association may hold himself or herself out as a specialist certified by such organization.
Amend Rule 512 of the Rules of Evidence by adding a new section (d) so that said rule, as amended, shall state as follows:
Rule 512. Comment Upon or Inference From Claim of
(a) Comment or Inference Not Permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Jury Instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
(d) Application -- Self-Incrimination. Subsections (a) to (c) do not apply in a non-criminal case with respect to the privilege against self-incrimination.