THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

O R D E R

Pursuant to Part II, Article 73-a of the New Hampshire Constitution, and Supreme Court Rule 51 A(7), the Supreme Court of New Hampshire approves, on a temporary basis, effective immediately, amendments to Supreme Court Rule 12-D(5) as set forth in Appendix A, Supreme Court Rule 37 as set forth in Appendix B, and Supreme Court Rule 37A as set forth in Appendix C. These amendments to the Supreme Court Rules shall be referred to the advisory committee on rules for consideration of whether they should be adopted as permanent rules.

Pursuant to Part II, Article 73-a of the New Hampshire Constitution, and Supreme Court Rule 51 A(7), the Supreme Court of New Hampshire approves, effective immediately, amendments to Supreme Court Rule 12-C as set forth in Appendix D, Supreme Court Rule 49 as set forth in Appendix E, and Supreme Court Rule 55(5) as set forth in Appendix F.

January 15, 2002

ATTEST: ______________________

Eileen Fox, Clerk of Court
Supreme Court of New Hampshire

APPENDIX A

Amend Supreme Court Rule 12-D(5) by deleting paragraph (5) and replacing it on a temporary basis with the following:

(5) Criteria for Selection of Cases for 3JX Panel. Cases suitable for oral argument before a 3JX panel include, but are not limited to:

(a) appeals involving claims of error in the application of settled law;

(b) appeals claiming an unsustainable exercise of discretion where the law governing that discretion is settled;

(c) appeals claiming insufficient evidence or a result against the weight of the evidence.

 

APPENDIX B

Amend Supreme Court Rule 37 by deleting it and replacing it on a temporary basis with the following:

 

Rule  37.  COMMITTEE ON PROFESSIONAL CONDUCT

(1) Discipline Matters in General:

(a) Jurisdiction: Any attorney admitted to practice law in this State or any attorney specially admitted to practice by a court of this State or any nonlawyer representative permitted to represent other persons before the courts of this State pursuant to RSA 311:1 is subject to the disciplinary jurisdiction of this court and the committee on professional conduct as hereinafter defined. Nothing herein contained shall be construed to deny to any other court such powers as are necessary for that court to maintain control over proceedings conducted before it, such as the power of contempt. Suspension or disbarment of an attorney, or equivalent sanctions of a nonlawyer representative, shall not terminate jurisdiction of this court.

(b) Grounds for Discipline: The right to practice law in this State is predicated upon the assumption that the holder is fit to be entrusted with professional matters and to aid in the administration of justice as an attorney and as an officer of the court. The conduct of every recipient of that right shall be at all times in conformity with the standards imposed upon members of the bar as conditions for the right to practice law.

Acts or omissions by an attorney individually or in concert with any person or persons which violate the standards of professional responsibility that have been and any that may be from time to time hereafter approved or adopted by this court, shall constitute misconduct and shall be grounds for discipline whether or not the act or omission occurred in the course of an attorney-client relationship.

(c) Priority of Discipline Matters: Matters relating to discipline of an attorney shall take precedence over all other civil cases in this court.

(d) Professional Continuity Committee Exemption: For the purposes of Rule 8.3 of the Rules of Professional Conduct, information received by members of the New Hampshire Bar Association during the course of their work on behalf of the Professional Continuity Committee which is indicative of a violation of the Rules of Professional Conduct shall be deemed privileged to the same extent allowed by the attorney-client privilege.

(2) Definitions:

(a) Attorney: Unless otherwise indicated, "Attorney," for purposes of this rule, means any attorney admitted to practice in this State, any attorney specially admitted to practice by a court of this State or any nonlawyer representative permitted to represent other persons before the courts of this State pursuant to RSA 311:1.

(b) Complaint: "Complaint" means 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 Supreme Court Rule 37A, 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 the jurisdiction of the committee 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.

(c) Committee: "Committee" means committee on professional conduct or any successor committee designated to receive and investigate complaints against attorneys.

(d) Bar Counsel: "Bar Counsel" means the attorney or attorneys responsible for the prosecution of all the disciplinary proceedings before the court, the committee or any hearing panel. The committee shall designate one or more active members of the New Hampshire Bar Association, other than one of their number, to act as bar counsel in the investigation and presentation of evidence in the matter under consideration.

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

(f) Grievance: "Grievance" means a written submission filed with the committee to call to its attention conduct that the grievant believes may constitute 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 and shall continue to be referred to as 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.

(g) Public Censure: "Public Censure" means the publication by the court, in any appropriate New Hampshire publication, of a summary of its findings and conclusions relating to the discipline of an attorney.

(h) Referral: "Referral" means 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.

(i) Reprimand: "Reprimand" means discipline administered by the committee after notice of charges and after a hearing, or a written waiver of a hearing by an attorney which is accepted by the committee, in those cases in which misconduct in violation of the Rules of Professional Conduct is found. Reprimand is administered by letter issued by the committee chair, subject to an attorney's right to appeal such discipline to the court.

(j) Suspension: "Suspension" means the suspension of a New Hampshire licensed attorney's right to practice law in this State, for a period of time specified by the court.

"Suspension" also means the suspension of the authority of an attorney specially admitted to practice by a court of this State or any nonlawyer representative permitted to represent other persons before courts of this State pursuant to RSA 311:1. A suspended New Hampshire licensed attorney shall have the right to resume the practice of law, after the expiration of the suspension period, upon compliance with all the terms and conditions set forth in the suspension order promulgated by the court and pursuant to the procedure set forth in section (12) regarding reinstatement. In the event of the suspension or termination of an attorney specially admitted to practice by a court of this State or any nonlawyer representative permitted to represent other persons before courts of this State pursuant to RSA 311:1, at the conclusion of any period set forth in the suspension or termination order, upon compliance with all the terms and conditions set forth in the suspension or termination order promulgated by the court, the specially admitted attorney or nonlawyer representative may petition the court for reinstatement in accordance with the procedure set forth in section (12) regarding reinstatement.

(k) Warning: "Warning" means 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.

(3) Committee on Professional Conduct:

(a) The court shall appoint a committee to be known as the Committee on Professional Conduct (hereinafter referred to as the "committee") which shall consist of eighteen members, one of whom shall be designated by the court as the chair. Two members of the Committee shall be designated by the court as vice-chairs, to act in the absence or disability of the chair. One of the vice-chairs must be a New Hampshire licensed attorney, and the other must be a non-attorney. At least four of the members shall not be attorneys. There shall be one member of the committee from each county in the State or such other districts as the court may designate; and one of the members shall be designated pursuant to section (3A), and shall have both the special term of office and the additional special responsibilities set forth therein.

In the event that any member of the committee has a conflict of interest or is otherwise disqualified from acting with respect to any investigation or proceeding before the committee, the court may, upon request or upon its own motion, appoint another person to sit on such investigation or proceeding as a temporary replacement for such disqualified member; and such temporary replacement, rather than the disqualified member, shall be considered a committee member for quorum and voting purposes in connection with such investigation or proceeding. In making such appointments, the court may disregard the geographical membership distribution requirement of this section.

(b) The regular term of each member shall be three years. A member selected to fill a vacancy shall hold office for the unexpired term of his or her predecessor. A member shall not serve for more than three consecutive full terms but may be reappointed after a lapse of one year. The committee shall act only with the concurrence of a majority of its members present and voting, provided, however, that nine members shall constitute a quorum.

(c) The committee shall have the power and duty:

(1) To consider and investigate the conduct of any attorney within its jurisdiction and may initiate any such investigation on its own motion in accordance with Supreme Court Rule 37A(2)(a)(2)(B) or may undertake the same upon complaint or grievance filed by any person.

(2) To appoint a bar counsel and such assistant bar counsel as may from time to time be required to properly perform the functions hereinafter prescribed.

(3) To appoint as may be necessary and in the discretion of the committee, hearing panels consisting of at least three members and to assign to such hearing panels complaints concerning charges of misconduct.

(4) To make a determination either on its own findings or after review of findings by a hearing panel as to whether or not such conduct warrants dismissal, warning, reprimand, or formal disciplinary proceedings in this court. Upon the approval of such findings and recommendations, the committee can dismiss the grievance or complaint, issue a warning, administer a reprimand, or institute and oversee the prosecution of formal disciplinary proceedings in this court as the case may be. The administration of a reprimand or the institution of formal disciplinary proceedings in this court shall be only upon clear and convincing evidence of a violation of the Rules of Professional Conduct warranting such action.

(5) To reprimand attorneys subject to its jurisdiction for misconduct by issuing a letter of reprimand. Any attorney aggrieved by a letter of reprimand issued by the committee shall have the right to appeal such reprimand to the court. Such rights must be exercised within thirty days from the date of a letter of reprimand. In the event that an attorney aggrieved by a letter of reprimand issued by the committee has filed a timely request for reconsideration pursuant to Supreme Court Rule 37A(3)(d)(4), the right to appeal the issuance of the letter of reprimand shall be exercised within thirty days from the date of the letter notifying the attorney of the committee's decision on the request for reconsideration. The manner of appeal from a reprimand shall be determined by the court. The court may refer the appeal from a reprimand to a judge or referee in the same manner as provided in section (13). Such reprimand may be affirmed, modified or reversed.

(6) To propose rules of procedure not inconsistent with the rules promulgated by this court.

(7) To appoint such investigative and other personnel as the committee shall deem necessary.

(8) To require a New Hampshire licensed attorney who has been subject to reprimand to produce evidence of satisfactory completion of the Multistate Professional Responsibility Examination, in appropriate cases.

(9) To educate the public on the general functions and procedures of the committee.

(3A) Board of Governors' Representative:

(a) The vice-president of the New Hampshire Bar Association, upon appointment by the court, shall represent the Board of Governors of the Association as a member of the committee for a one-year term commencing on the August 1 following election as such vice-president.

(b) The board of governors' representative shall have the following additional special responsibilities:

(1) To render such assistance as the committee directs in the preparation and review of the committee's annual budget.

(2) To assist in monitoring the financial affairs and budgetary processes of the committee during the fiscal year.

(3) To coordinate the assessment and collection of expenses to be reimbursed by disciplined attorneys.

(4) Consistent with the rule of confidentiality applicable to the work of the committee, to serve as liaison between the committee and the board of governors of the New Hampshire Bar Association.

(5) To assist in the communication to members of the New Hampshire Bar Association of a general understanding of the work of the committee, consistent with the rule of confidentiality applicable to the committee's proceedings.

(4) Bar Counsel:

(a) The committee shall appoint a bar counsel and such assistant bar counsel as may be required.

(b) Counsel shall have the power and duty to prosecute all disciplinary proceedings before hearing panels, the committee, and this court, as the case may be.

(c) Counsel shall appear at hearings conducted with respect to motions for reinstatement by suspended or disbarred attorneys, cross-examine witnesses testifying in support of the motion and marshal available evidence, if any, in opposition thereto.

(d) Within the budgetary authorization approved by the committee, counsel shall appoint such investigative and other personnel as bar counsel shall deem necessary.

(5) Immunity:

Each person shall be immune from civil liability for all statements made in good faith to the committee, the office of the attorney general, or to this court given in connection with any investigation or proceedings under this rule pertaining to alleged misconduct of an attorney. The protection of this immunity does not exist as to: (a) any statements not made in good faith; or (b) any statements made to others. See sections (17)(j) and 18(g). The committee, its staff, counsel, investigators, and any members of the hearing panels, shall be immune from civil liability for any conduct arising out of the performance of their duties.

(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.

(7) Attorneys Convicted of Serious Crimes:

(a) Upon the filing with the court of a certified copy of any court record establishing that an attorney has been convicted of a serious crime as hereinafter defined, the court may enter an order suspending the attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of an appeal, pending final disposition of a disciplinary proceeding to be commenced upon such conviction.

(b) The term "serious crime" shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime."

(c) A certified copy of any court record establishing the conviction of an attorney for any "serious crime" shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the attorney based upon the conviction.

(d) Upon the receipt of a certificate of conviction of an attorney for a "serious crime", the court may, and shall if suspension has been ordered pursuant to subsection (a) above, institute a formal disciplinary proceeding and refer the matter to a referee, in which the sole issue to be determined shall be the extent of the final discipline to be imposed, provided that a disciplinary proceeding so instituted will not be brought to hearing until all appeals from the conviction are concluded.

(e) Upon receipt of a certificate of a conviction of an attorney for a crime not constituting a "serious crime", the court shall refer the matter to the committee for such action as it deems appropriate. Referral to the committee hereunder does not preclude the court from taking whatever further action it deems appropriate.

(f) An attorney suspended under the provisions of subsection (a) above may be reinstated upon the filing of a certificate demonstrating that the underlying conviction for a serious crime has been reversed but the reinstatement will not terminate any proceeding then pending against the attorney.

(g) The clerk of any court within the State in which a New Hampshire licensed attorney is convicted of any crime shall, within ten days of said conviction, transmit a certificate thereof to this court.

(h) Upon being advised that an attorney has been convicted of a crime within this State, the committee shall determine whether the clerk of the court where the conviction occurred has forwarded a certificate to this court in accordance with the provisions of subsection (g) above. If the certificate has not been forwarded by the clerk or if the conviction occurred in another jurisdiction, it shall be the responsibility of the committee to obtain a certificate of conviction and to transmit it to this court.

(i) Whenever an attorney is indicted or bound over for any felony, the court shall take such actions as it deems necessary, including but not limited to the suspension of the attorney.

(8) Proceedings Where A New Hampshire Licensed Attorney Is Declared to Be Incompetent or Is Alleged to Be Incapacitated:

(a) Whenever a New Hampshire licensed attorney has been judicially declared incompetent or voluntarily or involuntarily committed to a mental institution, the court, upon proper proof of the fact, may enter an order suspending such attorney from the practice of law until the further order of the court. A copy of such order shall be served upon such attorney, the attorney's guardian and such other persons and in such manner as the court may direct.

(b) Whenever the committee shall petition the court to determine whether a New Hampshire licensed attorney is incapacitated from continuing the practice of law by reason of mental or physical infirmity or illness or because of addiction to drugs or intoxicants, the court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical experts as the court shall designate. If, upon due consideration of the matter, the court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order suspending the attorney on the ground of such disability for an indefinite period and until the further order of the court and any pending disciplinary proceeding against the attorney may be held in abeyance.

The court shall provide for such notice to the respondent-attorney of proceedings in the matter as it deems proper and advisable and shall appoint an attorney to represent the respondent if he or she is without adequate representation.

(c) If, during the course of a disciplinary proceeding, the respondent-attorney contends that he or she is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which makes it impossible for the respondent-attorney to adequately defend, the court thereupon shall enter an order immediately suspending the respondent-attorney from continuing to practice law until a determination is made of the respondent-attorney's capacity to continue to practice law in a proceeding instituted in accordance with the provisions of subsection (b) of this section.

If, in the course of a proceeding under this section or in a disciplinary proceeding, the court shall determine that the respondent-attorney is not so incapacitated, it shall take such action as it deems proper and advisable including a direction for the resumption of the disciplinary proceeding against the respondent-attorney.

(d) Any New Hampshire licensed attorney suspended under the provisions of this section may apply for reinstatement following the expiration of one year from the date of suspension or at such other time as the court may direct in the order of suspension or any modification thereof. Such application shall be granted by the court upon a showing by clear and convincing evidence that the attorney's disability has been removed and the attorney is fit to resume the practice of law. Upon such application, the court may take or direct such action as it deems necessary or proper to a determination of whether the attorney's disability has been removed including a direction for an examination of the attorney by such qualified medical experts as the court shall designate. At its discretion, the court may direct that the expense of such an examination shall be paid by the attorney.

Whenever a New Hampshire licensed attorney has been suspended by an order in accordance with the provisions of subsection (a) of this section and, thereafter, in proceedings duly taken, the attorney has been judicially declared to be competent, the court may dispense with further evidence that the disability has been removed and may direct reinstatement upon such terms as it deems proper and advisable.

(e) In a proceeding seeking an order of suspension under this section, the burden of proof shall rest with the committee. In a proceeding seeking an order terminating a suspension under this section, the burden of proof shall rest with the suspended attorney.

(f) The filing of an application for reinstatement by an attorney suspended for disability shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment of the attorney during the period of disability. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital by whom or in which the attorney has been examined or treated since the suspension and shall furnish to the court written consent to each to divulge such information and records as requested by the committee or the court-appointed medical experts.

(9) Resignation by New Hampshire Licensed Attorney under Disciplinary Investigation:

(a) A New Hampshire licensed attorney who is the subject of an investigation into allegations of misconduct may file a request to resign by delivering to the committee an affidavit stating that he or she desires to resign and that:

(1) the resignation is freely and voluntarily rendered; he or she is not being subjected to coercion or duress; he or she is fully aware of the implications of submitting the resignation;

(2) he or she is aware that there is presently pending an investigation into allegations that he or she has been guilty of misconduct the nature of which shall be specifically set forth;

(3) he or she acknowledges that the material facts upon which the complaint is predicated are true; and

(4) he or she submits the resignation because he or she knows that if charges were predicated upon the misconduct under investigation they could not be successfully defended.

(b) Upon receipt of the required affidavit, the committee shall file it with the court, along with its recommendation, and the court may take such action as it deems necessary.

(c) The contents of an affidavit of an attorney filed in support of his or her resignation from the Bar shall not be disclosed publicly or made available for use in any other proceeding except on order of the court.

(10) Reciprocal Discipline:

Upon receipt of a certificate that an attorney admitted to practice in this State has been disciplined in another jurisdiction, the court may enter an order imposing the identical discipline or, in its discretion, suspending the attorney pending the imposition of final discipline. A final adjudication in another jurisdiction that an attorney has been guilty of misconduct shall be considered prima facie evidence of the misconduct for purposes of a disciplinary proceeding in this State.

(11) Disbarred or Suspended Attorney:

(a) A disbarred or suspended attorney may be ordered by the court to notify by registered or certified mail, return receipt requested, all clients being represented in pending matters, other than litigated or administrative matters or proceedings pending in any court or agency, of the disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension and shall advise said clients to seek other legal counsel.

(b) A disbarred or suspended attorney may be ordered by the court to notify, by registered or certified mail, return receipt requested, each client who is involved in litigated matters or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension. The notice to be given to the client shall advise the prompt substitution of another attorney or attorneys.

In the event the client does not obtain substitute counsel before the effective date of the disbarment or suspension, it shall be the responsibility of the disbarred or suspended attorney to move pro se in the court or agency in which the proceeding is pending, for leave to withdraw.

The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the disbarred or suspended attorney.

(c) The disbarred or suspended attorney, after entry of the disbarment or suspension order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, during the period from the entry date of the order and its effective date, the disbarred or suspended attorney may wind up and complete, on behalf of any client, all matters which were pending on the entry date.

(d) In addition, the court may order that within thirty days after the effective date of the disbarment or suspension order, the disbarred or suspended attorney shall file with the court an affidavit showing: (1) that he or she has fully complied with the provision of the order and with this section; and (2) that he or she has served a copy of such affidavit upon the committee. Such affidavit shall also set forth the residence or other address of the disbarred or suspended attorney where communications may thereafter be directed.

(e) A disbarred or suspended attorney shall keep and maintain records of the various steps taken under this section so that, upon any subsequent proceeding instituted by or against him or her, proof of compliance with this rule and with the disbarment or suspension order will be available.

(12) Reinstatement and Readmission:

(a) An attorney who has been suspended for a specific period may not move for reinstatement until the expiration of the period of suspension, and upon the completion of all the terms and conditions set forth in the order of suspension.

(b) General Rule: A motion for reinstatement by an attorney suspended for misconduct rather than disability or an application for readmission by a New Hampshire licensed attorney who has been disbarred or has resigned while under disciplinary investigation shall be referred to the committee by the supreme court. Upon receipt of a motion for reinstatement or an application for readmission, the committee shall refer the motion or application to a hearing panel appointed by the committee. The administrator shall then cause a notice to be published in a newspaper with statewide circulation as well as the New Hampshire Bar News that the respondent-attorney has moved for reinstatement or applied for readmission. The notice shall invite anyone to comment on the motion or application by submitting said comments in writing to the administrator within twenty (20) days. All comments shall be made available to the respondent-attorney. Where feasible, the administrator shall give notice to the original grievant or complainant. The hearing panel shall promptly schedule a hearing at which the respondent shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this State and that the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive to the public interest. At the conclusion of the hearing, the hearing panel shall promptly file a report containing its findings and recommendations and transmit same, together with the record, to the committee. The committee shall review the report of the hearing panel and the record and shall file its own recommendations and findings with the court, together with the record. Following the submission of briefs and oral argument, if any, the court shall enter a final order.

(c) In all proceedings upon a motion for reinstatement or application for readmission, cross-examination of the respondent-attorney's proof and the submission of evidence, if any, in opposition to the motion for reinstatement or application for readmission shall be conducted by bar counsel.

(d) The court in its discretion may direct expenses incurred by the committee in the investigation and processing of a motion for reinstatement or application for readmission be paid by the respondent-attorney.

(e) Motions for reinstatement by New Hampshire licensed attorneys suspended for misconduct shall be accompanied by evidence of the movant's satisfactory completion of the Multistate Professional Responsibility Examination. Applicants for readmission shall produce evidence of satisfactory completion of the Multistate Professional Responsibility Examination pursuant to the provisions of Supreme Court Rule 42.

(12-a) Readmission after Resignation:

(a) A New Hampshire licensed attorney who has resigned, and who was not the subject of an investigation into allegations of misconduct at or subsequent to the time of resignation, may file a motion for readmission with the supreme court accompanied by evidence of continuing competence and learning in the law, and evidence of continuing moral character and fitness. If the evidence of continuing competence and learning in the law, and evidence of continuing moral character and fitness, are satisfactory to the court, the court may order reinstatement effective upon payment by the applicant of all bar dues and other fees, including public protection fund fees, that the applicant would have been responsible for paying had the applicant remained an active member of the bar from the date of resignation until the date of reinstatement. In addition, the court may condition reinstatement upon completion of such continuing legal education as the court may order.

(b) If the evidence of continuing competence and learning in the law is not satisfactory to the court, the court shall refer the motion for reinstatement to the committee, which shall refer the motion to a hearing panel appointed by the committee. The hearing panel shall promptly schedule a hearing at which the attorney shall have the burden of demonstrating by a preponderance of the evidence that he or she has the competency and learning in law required for reinstatement. At the conclusion of the hearing, the hearing panel shall promptly file a report containing its findings and recommendations and transmit same, together with the record, to the committee. The committee shall review the report of the hearing panel and the record and shall file its own recommendations and findings, together with the record, with the court. Following the submission of briefs, if necessary, and oral argument, if any, the court shall enter a final order. No order of the court granting reinstatement shall be effective prior to payment by the applicant of all bar dues and other fees, including public protection fund fees, that the applicant would have been responsible for paying had the applicant remained an active member of the bar from the date of resignation until the date of reinstatement. In addition, the court may condition reinstatement upon completion of such continuing legal education as the court may order.

(c) If the evidence of continuing moral character and fitness is not satisfactory to the court, the court shall order the applicant to file with the committee on character and fitness and with the clerk of the supreme court the petition and questionnaire referred to in Supreme Court Rule 42(5)(e). Further proceedings shall be governed by Rule 42. No order of the court granting reinstatement shall be effective prior to payment by the applicant of all bar dues and other fees, including public protection fund fees, that the applicant would have been responsible for paying had the applicant remained an active member of the bar from the date of resignation until the date of reinstatement. In addition, the court may condition reinstatement upon completion of such continuing legal education as the court may order.

(13) Procedure:

(a) Discipline proceedings shall be initiated in this court by the committee or by the attorney general by written complaint setting forth allegations of facts giving rise to the complaint and alleging the specific provisions of the Rules of Professional Conduct which have been violated.

(b) Service shall be made on the respondent-attorney in such manner as the court may direct.

(c) Respondent-attorney shall answer each allegation specifically and shall file an answer within thirty days after service of the complaint.

(d) The court may make such temporary orders as justice may require either with or without hearing. Respondent-attorney shall be entitled to be heard after any ex-parte order.

(e) The court may refer the complaint for hearing before a judicial referee or other judge. After hearing, the referee/judge shall file a written report with the court with specific findings of fact and rulings of law as to the alleged violations and as to the recommended sanction. The court shall, after filing of briefs and oral arguments, make such order as justice may require.

(f) The court may suspend respondent-attorneys, disbar New Hampshire licensed attorneys or publicly censure respondent-attorneys upon such terms and conditions as the court deems necessary for the protection of the public and the preservation of the integrity of the legal profession.

(g) In the event of suspension or disbarment, a copy of the court's order shall be sent to the clerk of every court in the State and to each State in which the respondent-attorney is admitted to practice. The committee shall continue to be responsible to insure respondent-attorney's compliance with the court order of suspension or disbarment, in the case of a New Hampshire licensed attorney, and to notify the court as to any violations for such action as the court deems necessary.

(h) In addition to the procedure described herein, the court may take such action on its own motion as it deems necessary.

(i) Pleadings and procedure before the court and before the referee/judge shall conform insofar as practicable with the requirements of the superior court rules for trials of matters of equity.

(14) Appointment of Counsel to Protect Clients' Interests:

(a) Whenever an attorney is suspended, disbarred, dies or whose whereabouts are unknown, and no partner, executor or other responsible party capable of conducting the attorney's affairs is known to exist, the court, upon proper proof of the fact, may appoint an attorney or attorneys to make an inventory of the files of said attorney and to take such action as seems indicated to protect the interests of clients of said attorney as well as the interest of said attorney.

(b) Any attorney so appointed shall not be permitted to disclose any information contained in any files so inventoried without the consent of the client to whom such file relates except as necessary to carry out the order appointing the attorney to make such inventory.

(c) Any attorney so appointed shall be entitled to reasonable compensation and reimbursement for expenses incurred.

(15) Refusal of Grievant or Complainant to Proceed, Compromise, Etc.:

Neither unwillingness nor neglect of the grievant or complainant to sign a grievance or complaint or to prosecute a charge, nor settlement, compromise or restitution shall by itself justify abatement of an investigation into the conduct of an attorney.

(16) Expenses Relating to Discipline Enforcement:

All expenses incurred by the committee and by bar counsel in the investigation and enforcement of discipline shall be paid by the New Hampshire Bar Association in the first instance but may, in whole or in part, be assessed to a disciplined attorney to the extent appropriate.

(17) Confidentiality:

Applicability Note: Section 17 shall apply to records and proceedings in all matters initiated on or after April 1, 2000.

(a) Grievance outside the Jurisdiction of the Committee or Not Meeting Requirements for Docketing as a Complaint:

(1) A grievance against a person(s) who is (are) not subject to the Rules of Professional Conduct shall be returned to the grievant. No file on the grievance will be maintained; however, the committee shall retain a copy of the letter to the grievant returning the grievance, which shall be available for public inspection in accordance with Supreme Court Rule 37A(4)(a)(2)(A).

(2) All records and materials relating to a grievance determined by the administrator or the committee not to meet the requirements for docketing as a complaint shall be available for public inspection (other than work product, internal memoranda, and deliberations) in accordance with Supreme Court Rule 37A(4)(a)(2)(B) after correspondence is sent to the respondent-attorney who is the subject of the grievance and the respondent-attorney has the opportunity to provide a reply to be filed in the public record.

(b) Grievance Docketed as Complaint: All records and proceedings relating to a complaint docketed by the committee shall be available for public inspection (other than work product, internal memoranda, and deliberations) in accordance with Supreme Court Rule 37A(4)(a)(2)(C) upon the earliest of the following:

(1) When the committee finally disposes of a complaint;

(2) When the committee issues a notice of charges;

(3) When the committee files a petition with the New Hampshire Supreme Court, except as provided by section 9 regarding resignations; or

(4) When the respondent-attorney, prior to dismissal of a complaint or the issuance of a notice of charges, requests that the matter be public.

(c) Proceedings for Reinstatement or Readmission: When an attorney seeks reinstatement or readmission pursuant to section 12, the records, with the exception of the bar application, and the proceedings before the committee shall be public (other than work product, internal memoranda, and deliberations).

(d) Proceedings Based upon Conviction or Public Discipline: If the investigation is predicated upon a conviction of the respondent for a crime or upon public discipline imposed upon the respondent in another jurisdiction, the entire file pertaining to the crime or the public discipline, other than the work product, internal memoranda, and deliberations of the committee, shall be available for public inspection.

(e) Proceedings Alleging Disability: All proceedings involving allegations of disability on the part of a New Hampshire licensed respondent-attorney shall be kept confidential until and unless the supreme court enters an order suspending said respondent-attorney from the practice of law pursuant to section 8, in which case said order shall be public.

(f) Protective Orders: Upon motion of any person or entity or upon the committee's own initiative, the committee may issue a protective order prohibiting the disclosure of confidential, malicious, personal, or privileged information or materials submitted in bad faith, and directing that the proceedings be so conducted as to implement the order.

(g) Disclosure to Authorized Agency: The committee may disclose relevant information that is otherwise confidential to agencies authorized to investigate the qualifications of judicial candidates, to authorized agencies investigating qualifications for admission to practice or fitness to continue practice, to law enforcement agencies investigating qualifications for government employment, and to law enforcement agencies authorized to investigate and prosecute violations of the criminal law. If the committee decides to answer a request for relevant information, and if the respondent-attorney who is the subject of the request has not signed a waiver permitting the requesting agency to obtain confidential information, the committee shall send to the respondent-attorney at his or her last known address, by certified mail, a notice that information has been requested and by whom, together with a copy of the information that the committee proposes to release to the requesting agency. The committee shall inform the subject respondent-attorney that the information shall be released at the end of ten (10) days from the date of mailing the notice unless the respondent-attorney obtains a supreme court order restraining such disclosure. Notice to the respondent-attorney, as provided in this section, shall not be required prior to disclosure of relevant information that is otherwise confidential to law enforcement agencies authorized to investigate and prosecute violations of the criminal law.

(h) Disclosure to Supreme Court for Rule 36 Review: The committee shall disclose relevant information that is otherwise confidential to the supreme court, upon its request, in connection with the court's review of applications under Supreme Court Rule 36.

(i) Disclosure to National Discipline Data Bank: The clerk of the supreme court shall transmit notice of all public discipline imposed on an attorney by the supreme court, or the suspension from law practice due to disability of an attorney, to the National Discipline Data Bank maintained by the American Bar Association.

(j) Duty of Participants: All participants in the proceedings shall conduct themselves so as to maintain the confidentiality mandated by this rule.

Nothing in this section prevents a grievant from disclosing publicly the conduct of an attorney which he or she believes violates the Rules of Professional Conduct or is otherwise inappropriate. The immunity from civil liability provided by section (5) does not apply to such disclosures. This section does prohibit a grievant, however, from disclosing publicly the fact that a grievance or complaint against the attorney about the conduct has been filed with the committee pending the grievance or complaint becoming public in accordance with the provisions of this section.

(k) Violation of Duty of Confidentiality: Any violation of the duty of confidentiality imposed by section (17) may result in action of the committee at the request of the non-violating party or on its own motion. That action may consist of opening the file and the proceedings earlier than would have been the case under section (17), terminating the proceedings with or without public comment, or such other action as the committee deems appropriate in the circumstances.

(18) Confidentiality:

Applicability Note: Section 18 shall not apply to records and proceedings in matters initiated on or after April 1, 2000.

(a) Proceedings Alleging Misconduct: All records and proceedings involving allegations of misconduct by an attorney shall be confidential and shall not be disclosed except:

(1) When the committee issues a notice of charges, in which case the notice, the committee's file (other than work product and internal memoranda of the committee), the proceedings before the committee (other than deliberations), and the decision shall be public; or

(2) When the committee files a petition with the New Hampshire Supreme Court, in which case, except as provided by section 9 regarding resignations, the pleadings, all information admitted at the proceedings, the proceedings themselves (other than deliberations of the supreme court), and the decision, shall be public; or

(3) When an attorney seeks reinstatement or readmission pursuant to section 12, in which case the proceedings before the committee and the court shall be conducted the same as prescribed in subsections (1) and (2); or

(4) When the respondent-attorney, prior to the issuance of a notice of charges as prescribed in subsection (1), requests that the matter be public, in which case the entire file, other than the work product and internal memoranda of the committee, shall be public; or

(5) If the investigation is predicated upon a conviction of the respondent for a crime or upon public discipline imposed upon the respondent in another jurisdiction, in which case the entire file pertaining to the crime or the public discipline, other than the work product and internal memoranda of the committee, shall be public.

(b) Proceedings Alleging Disability: All proceedings involving allegations of disability on the part of an attorney shall be kept confidential until and unless the supreme court enters an order suspending said attorney from the practice of law pursuant to section 8, in which case said order shall be public.

(c) Protective Orders: Proceedings involving allegations of misconduct by or the disability of a respondent-attorney frequently require the disclosure of otherwise confidential or privileged information concerning the complainant, a witness, or the respondent-attorney. In order to protect the interests of the complainant, witness, or respondent-attorney, the hearing committee to whom formal prosecution of an allegation of misconduct by or disability of a respondent-attorney is assigned, or the committee in cases considered by it directly without reference to a hearing committee, may, upon application to the supreme court and for good cause shown, obtain a protective order prohibiting the disclosure of such information and directing that the proceedings be so conducted as to implement the order.

(d) Disclosure to Authorized Agency: The committee may disclose relevant information that is otherwise confidential to agencies authorized to investigate the qualifications of judicial candidates, to authorized agencies investigating qualifications for admission to practice or fitness to continue practice, to law enforcement agencies investigating qualifications for government employment, and to law enforcement agencies authorized to investigate and prosecute violations of the criminal law. If the committee decides to answer a request for relevant information, and if the respondent-attorney who is the subject of the request has not signed a waiver permitting the requesting agency to obtain confidential information, the committee shall send to the respondent-attorney at his or her last known address, by certified mail, a notice that information has been requested and by whom, together with a copy of the information that the committee proposes to release to the requesting agency. The committee shall inform the subject respondent-attorney that the information shall be released at the end of ten (10) days from the date of mailing the notice unless the respondent-attorney obtains a supreme court order restraining such disclosure. Notice to the respondent-attorney, as provided in this section, shall not be required prior to disclosure of relevant information that is otherwise confidential to law enforcement agencies authorized to investigate and prosecute violations of the criminal law.

(e) Disclosure to Supreme Court for Rule 36 Review: The committee shall disclose relevant information that is otherwise confidential to the supreme court, upon its request, in connection with the court's review of applications under Supreme Court Rule 36.

(f) Disclosure to National Discipline Data Bank: The clerk of the supreme court shall transmit notice of all public discipline imposed on an attorney by the supreme court, or the suspension from law practice due to disability of an attorney, to the National Discipline Data Bank maintained by the American Bar Association.

(g) Duty of Participants: All participants in the proceedings shall conduct themselves so as to maintain the confidentiality mandated by this rule.

Nothing in the rule of confidentiality prevents a complainant from disclosing publicly the conduct of an attorney which he or she believes violates the Rules of Professional Conduct or is otherwise inappropriate. The immunity from civil liability provided by section (5) does not apply to such disclosures. This rule does prohibit a complainant, however, from disclosing publicly the fact that a complaint against the attorney about the conduct has been filed with the committee pending action on the complaint by the committee or pending the complaint becoming public in accordance with section (18)(a).

If a complaint has been dismissed or otherwise disposed of by the committee without discipline having been imposed, a complainant may make a public disclosure concerning the filing of the complaint, including the conduct complained of and the action of the committee. The immunity from civil liability provided by section (5) does not apply to such disclosures.

(h) Violation of Duty of Confidentiality: Any violation of the duty of confidentiality imposed by section (18) may result in action of the committee at the request of the non-violating party or on its own motion. That action may consist of opening the file and the proceedings earlier than would have been the case under section (18)(a)(1), terminating the proceedings with or without public comment, or such other action as the committee deems appropriate in the circumstances.

(19) Copy of Rule:

A copy of Supreme Court Rules 37 and 37A shall be provided to all grievants, complainants, and respondent-attorneys.

APPENDIX C

Amend Supreme Court Rule 37A by deleting it and replacing it with the following:

 

Rule  37A.  RULES AND PROCEDURES OF COMMITTEE ON PROFESSIONAL CONDUCT

(1) General Provisions.

(a) Jurisdiction.

The jurisdiction of the Committee on Professional Conduct shall be as set forth in Supreme Court Rule 37(1)(a).

(b) Construction.

This rule is promulgated for the purpose of assisting the grievant, the respondent, and the committee to develop the facts relating to, and to reach a just and proper determination of, matters brought to the attention of the committee.

(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.

Attorney - Unless otherwise indicated, "Attorney," for purposes of this rule, means any attorney admitted to practice in this State, any attorney specially admitted to practice by a court of this State or any nonlawyer representative permitted to represent other persons before the courts of this State pursuant to RSA 311:1.

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 a New Hampshire licensed 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 See "Attorney."

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 a New Hampshire licensed attorney's right to practice law in this State, for a period of time specified by the court.

Suspension also means the suspension of the authority of an attorney specially admitted to practice by a court of this State or any nonlawyer representative permitted to represent other persons before courts of this State pursuant to RSA 311:1. A suspended New Hampshire licensed attorney shall have the right to resume the practice of law, after the expiration of the suspension period, upon compliance with all 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. In the event of the suspension or termination of an attorney specially admitted to practice by a court of this State or any nonlawyer representative permitted to represent other persons before courts of this State pursuant to RSA 311:1, at the conclusion of any period set forth in the suspension or termination order, upon compliance with all the terms and conditions set forth in the suspension or termination order promulgated by the court, the specially admitted attorney or nonlawyer representative may petition the court for reinstatement in accordance with 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.

(d) Grounds for Discipline.

The various matters specified in Supreme Court Rule 37(1)(b), the disciplinary rules, and decisional law shall be grounds for discipline.

(e) Types of Discipline and Other Possible Action.

(1) Misconduct under Supreme Court Rule 37(1)(b), the disciplinary rules, or decisional law shall be grounds for any of the following:

(A) Disbarment - by the court.

(B) Suspension - by the court.

(C) Public Censure - by the court.

(D) Reprimand - by the committee after notice of charges and hearing (or a written waiver thereof by the respondent which is accepted by the committee), with or without referral to the court for further action.

(2) The committee may issue a warning to a respondent when it is deemed to be appropriate. The issuance of a warning does not constitute discipline.

(f) Subsequent Consideration of Disciplinary Action or of a Warning.

The fact that an attorney has been issued a warning, has been the subject of a reprimand, or has been the subject of disciplinary action by the court, may (together with the basis thereof) be considered in determining whether to impose discipline, and the extent of discipline to be imposed, in the event additional charges of misconduct are subsequently brought against the attorney.

(g) Public Announcements.

The committee may, from time to time, publicly announce the nature, frequency, and substance of warnings, reprimands, and referrals to the court. Unless a grievance or complaint has already been made available for public inspection in accordance with Supreme Court Rule 37, such announcements shall not disclose or indicate the identity of any respondent without: (a) the prior approval of the court and prior notice to the respondent (giving the respondent an opportunity to be heard thereon); or (b) the appropriate written waiver from the respondent.

(h) Period of Limitation.

(1) Except as provided in subsection (3), no formal disciplinary proceedings shall be commenced unless a grievance is filed with the committee in accordance with section (2)(a) or a committee-generated complaint is docketed by the committee under section (2)(a)(5)(B) of this rule:

(A) within six (6) years after the commission of the alleged misconduct when the alleged misconduct was committed before April 1, 2000;

(B) within two (2) years after the commission of the alleged misconduct when the alleged misconduct was committed on or after April 1, 2000; except when the acts or omissions that are the basis of the grievance were not discovered and could not reasonably have been discovered at the time of the acts or omissions, in which case, the grievance must be filed within two years of the time the grievant discovers, or in the exercise of reasonable diligence should have discovered, the acts or omissions complained of.

(2) Misconduct will be deemed to have been committed when every element of the alleged misconduct has occurred, except, however, that where there is a continuing course of conduct, misconduct will be deemed to have been committed beginning at the termination of that course of conduct.

If the continuing course of conduct began before but terminated after April 1, 2000, continuing misconduct through March 31, 2000, will be subject to the six (6) year period of limitation while continuing misconduct for the period beginning April 1, 2000, will be subject to the two (2) year period of limitation.

(3) If a grievance is filed after the period prescribed in subsection (1) has expired, the committee may elect to commence formal proceedings in the following cases:

(A) if based on charges which include commission of a "serious crime," as defined in Supreme Court Rule 37(7)(b), or conduct which would be a material element of a "serious crime," or

(B) if based on charges which do not include conduct described in (A) but which include as a material element fraud or fraudulent misrepresentation, dishonesty, deceit, or breach of fiduciary duty, but only if commenced within one (1) year after actual discovery of the misconduct by the aggrieved party.

(4) The period of limitation does not run:

(A) during any time the respondent is outside this jurisdiction with a purpose to avoid commencement of proceedings, or wherein the respondent refuses to cooperate with an investigation into alleged misconduct, or

(B) during any period in which the respondent has engaged in active concealment of the alleged misconduct, provided that the period begins to run when the concealment is discovered by the aggrieved party or the committee.

(5) If, while proceedings of any kind are pending against the respondent in any court or tribunal and arising out of the same acts or transactions that provide the basis for the allegations of misconduct, the limitation period prescribed in subsection (1) expires, formal disciplinary proceedings may be commenced within one year after final conclusion of those proceedings notwithstanding the expiration of the period of limitation.

(2) Investigations and Informal Proceedings.

(a) Preliminary Provisions.

(1) Responsibility of Committee.

The committee shall investigate all matters involving alleged misconduct of attorneys which fall within the jurisdiction of the committee and which satisfy the requirements of this rule.

(2) Initiation of Investigation Process.

(A) Grievance. Any person may file a grievance with the committee to call to its attention the conduct of an attorney that he or she believes constitutes misconduct which should be investigated by the committee. If necessary, the administrator of the committee will assist the grievant in reducing the grievance to writing.

In accordance with a judge's obligation under Canon 3 of the Code of Judicial Conduct to report unprofessional conduct of an attorney of which the judge is aware, a judge of the supreme, superior, district or probate courts of New Hampshire, may refer any matter to the committee which he or she believes may constitute misconduct by an attorney that should be investigated by the committee. In accordance with an attorney's obligation under Rule 8.3 of the Rules of Professional Conduct to report unprofessional conduct of an attorney of which he or she has knowledge, a member of the Bar of New Hampshire, may refer any matter to the committee which he or she believes may constitute misconduct by an attorney that should be investigated by the committee. Except as otherwise provided, a referral from a court or attorney shall be treated as a grievance. Upon receipt of a referral, the committee shall determine whether the referring judge or attorney wishes to be treated as a grievant. If the referring judge or attorney does not wish to be treated as a grievant, and, if it is determined after initial screening that the grievance is within the jurisdiction of the committee and meets the requirements for docketing as a complaint as set forth in section (2)(a)(3)(B), the committee shall process the grievance as a committee-generated complaint.

(B) Committee-initiated Inquiry. The committee may, upon any reasonable factual basis, undertake and complete an inquiry, on its own initiative, of any other matter within its jurisdiction coming to the attention of the committee by any lawful means, including a grievance referred by the administrator after dismissal. Unless the committee later votes to docket a complaint against an attorney in accordance with section (2)(a)(5)(B), all records of a committee-initiated inquiry shall be confidential.

(C) Filing. A grievance shall be deemed filed when received by the committee.

(3) Committee Procedure after Receipt of Grievance.

(A) Initial Screening of Grievance. The administrator shall review each grievance upon receipt to determine whether the grievance is within the jurisdiction of the committee and whether the grievance meets the requirements for docketing as a complaint.

(B) Requirements for Docketing Grievance as a Complaint. A grievance shall be docketed as a complaint if it is within the jurisdiction of the committee and it meets the following requirements:

(1) Violation Alleged. It contains a concise statement of the facts which, if true, would establish a violation of a disciplinary rule.

(2) Standing. With the exception of a committee-initiated inquiry or a referral by a court or attorney, it was filed by a person who is directly affected by the conduct complained of or who was present when the conduct complained of occurred, and contains a concise statement establishing these facts.

(3) Oath or Affirmation. It is typed or in legible handwriting and, with the exception of a committee-initiated inquiry or a referral by a court or attorney, signed by the grievant under oath or affirmation. The following language, or language that is substantially equivalent, must appear above the grievant's signature: "I hereby swear or affirm under the pains and penalties of perjury that the information contained in this grievance is true to the best of my knowledge."

(4) Limitation Period. It was filed with the committee within the period of limitation set forth in section (1)(h).

(C) Treatment of Grievance Not Within Jurisdiction of Committee or Failing to Meet Complaint Requirements. A grievance that is not within the jurisdiction of the committee or that does not meet the requirements for docketing as a complaint as set forth in section (2)(a)(3)(B) shall not be docketed and shall be disposed of in accordance with section (2)(a)(4).

(4) Disposition of Grievance after Initial Screening.

(A) Lack of Jurisdiction. If the administrator determines that the person who is the subject of the grievance is not a person subject to the Rules of Professional Conduct, the administrator shall return the grievance to the grievant with a cover letter explaining the reason for the return and advising the grievant that the committee will take no action on the grievance. The person(s) who is (are) the subject of the grievance shall not be notified of it. No file on the grievance will be maintained; however, the committee shall retain a copy of the cover letter to the grievant, which shall be available for public inspection in accordance with section (4)(a)(2)(A). The committee may bring the matter to the attention of the authorities of the appropriate jurisdiction, or to any other duly constituted body which may provide a forum for the consideration of the grievance and shall advise the grievant of such referral.

(B) Failure to Meet Complaint Requirements. If the administrator determines that a grievance fails to meet the requirements for docketing as a complaint, the administrator shall so advise the grievant in writing. The attorney(s) who is (are) the subject of the grievance shall be provided with a copy of the grievance and the response by the administrator, and shall be given an opportunity to submit a reply to the grievance within 30 days from the date of the notification or such further time as may be ordered by the committee. The attorney's reply shall be filed in the record, which shall be available for public inspection in accordance with section (4)(a)(2)(B).

(C) Reconsideration of Administrator's Decision. A grievant may file a written request for reconsideration of the administrator's decision that the grievance is not within the jurisdiction of the committee or does not meet the requirements for docketing as a complaint, but said request must be filed within 10 days of the date of the administrator's written notification. A request for reconsideration of the administrator's decision shall automatically stay the period in which the attorney may file a reply as provided for by section (2)(a)(4)(B). Any such request for reconsideration that is timely filed shall be assigned by the chair to a member of the committee for review and recommendation. Upon receipt of the recommendation, the chair shall affirm the administrator's decision or direct that the grievance be docketed as a complaint and processed in accordance with the following paragraph. If the administrator's decision is affirmed, the attorney(s) who is (are) the subject of the grievance shall be given an opportunity to submit a reply to the grievance within 30 days from the date of the notification of the chair's action on the request for reconsideration or such further time as may be ordered by the committee.

(5) Docketing of Grievance as Complaint; Procedure Following Docketing of Complaint.

(A) Docketing of Grievance as Complaint. If the administrator or committee determines that a grievance is within the jurisdiction of the committee and meets the requirements for docketing as a complaint as set forth in section (2)(a)(3)(B), the administrator shall docket it as a complaint.

(B) Drafting and Docketing of Committee-generated Complaint. If, after undertaking and completing an inquiry on its own initiative, the committee determines that there is a reasonable basis to docket a complaint against a respondent, a written complaint shall promptly be drafted and docketed.

(C) Request for Answer to Complaint. After a complaint is docketed, the administrator shall promptly forward to the respondent a copy of the complaint and a request for an answer thereto or to any portion thereof specified by the committee. Unless a shorter time is fixed by the committee chair and specified in such notice, the respondent shall have 30 days from the date of such notice within which to file his or her answer with the committee. If an answer is not received within the specified period, or any granted extension, absent good cause demonstrated by the respondent, the committee shall prepare a notice of charges requiring the respondent to appear before the committee or a hearing panel and to show cause why he or she should not be determined to be in violation of Rules 8.1(b) and 8.4(a) of the Rules of Professional Conduct for failing to respond to the committee's request for an answer to the complaint.

(6) Investigation.

The committee chair shall, either prior to or following receipt of the respondent's answer, assign the complaint to the administrator or a reviewing member for such investigation as may be appropriate.

The participation of any member of the committee who investigates the complaint shall be limited as follows. Such investigating member may participate in the hearing as a facilitator. The facilitator shall not be a member of the hearing panel and shall not participate in the deliberations, voting, and determination of the disposition of the complaint. This limitation shall not prevent such investigating member from assisting bar counsel if the disposition of the complaint results in the committee filing a petition for public discipline with the court.

The report of the investigating member is part of the committee's work product and is not available for public inspection.

(7) Recommendation Following Investigation.

Following completion of any investigation of the complaint (including consideration of the answer filed by the respondent pursuant to section (2)(a)(5)(c)), the administrator or the committee chair shall propose to the committee one of the following dispositions:

(A) Dismissal of the matter for lack of jurisdiction.

(B) Dismissal of the matter for failure to meet the requirements for docketing as a complaint.

(C) Dismissal of the matter for any other reason.

(D) Dismissal of the matter with a warning.

(E) Reprimand without a hearing if waived in writing by the respondent and accepted by the committee.

(F) Formal proceedings before a hearing panel or the court.

(8) Action Following Proposed Disposition.

(A) Dismissal for Lack of Jurisdiction. If the committee determines that it lacks jurisdiction over the matter, the committee shall dismiss the matter, and the administrator shall notify the grievant and the respondent of the committee's disposition in writing and shall close the file on the matter. The committee may bring the matter to the attention of the authorities of the appropriate jurisdiction, or to any other duly constituted body which may be able to provide a forum for the consideration of the matter and shall advise the grievant and respondent of such referral.

(B) Dismissal for Failure to Meet Requirements for Docketing as a Complaint. If the committee determines that the requirements set forth in section (2)(a)(3)(B) for docketing as a complaint have not been met, the committee shall dismiss the matter, and the administrator shall notify the grievant and the respondent of such disposition in writing and shall close the file on the matter. The matter shall be removed from the docket and shall thereafter be treated for all purposes as a grievance that has not been docketed as a complaint.

(C) Dismissal for Another Reason. If the committee determines that the complaint should be dismissed for any other reason, the committee shall dismiss the complaint and the administrator shall notify the grievant and respondent of such disposition in writing and shall close the file on the matter.

(D) Dismissal with a Warning. If the committee determines that the complaint should be dismissed and that a warning should issue, the administrator shall notify the grievant and the respondent of such disposition in writing and shall notify the respondent of his or her rights, if any, pursuant to section (2)(b)(1)(B) of this rule.

(E) Reprimand without a Hearing. If the committee determines that the matter should be concluded by a reprimand, and the respondent agrees in writing to waive a hearing, which waiver is accepted by the committee, the committee chair shall give confirmation of such disposition to the grievant and respondent in writing, which shall bear the designation "REPRIMAND".

(F) Formal Proceedings. If the committee determines that formal proceedings should be held, it shall follow the procedure set forth in section (3) of this rule.

(b) Final Disposition without Formal Proceedings.

(1) Warning.

(A) A written record shall be made of the fact of and basis for a dismissal with a warning.

(B) In the case of a warning, the respondent shall be advised of:

(1) the respondent's rights to submit a written response, which shall be maintained with the file relating to the complaint.

(2) the fact that the issuance of the warning does not constitute discipline by the committee; and

(3) the fact that the record of such warning may be considered by the committee in the event other charges of misconduct are subsequently brought against the respondent.

(2) Notification to Grievant of Disposition of Complaint.

The committee chair, by means of written notice, shall notify the grievant of the dismissal of a complaint, with or without a warning, or of the issuance of a reprimand. The committee chair shall provide the grievant with a copy of the dismissal, warning, or reprimand, as the case may be.

(c) Abatement of Investigation.

(1) Refusal of Grievant or Respondent to Proceed, Etc.

Neither unwillingness or neglect of the grievant to prosecute a charge, nor settlement, compromise, or restitution, nor failure of the respondent to cooperate, shall, by itself, justify abatement of an investigation into the conduct of an attorney or the deferral or termination of proceedings under this rule.

(2) Complaint Related to Pending Civil Litigation or Criminal Matter.

(A) General Rule. The processing of a complaint involving material allegations which are substantially similar to the material allegations of pending criminal or civil litigation need not but may be deferred pending determination of such litigation.

(B) Effect of Determination. The acquittal of a respondent on criminal charges or a verdict or judgment in the respondent's favor in a civil litigation involving substantially similar material allegations shall not, by itself, justify termination of a disciplinary investigation predicated upon the same material allegations.

(d) Resignation, Reinstatement, Conviction of Crime.

(1) Resignation by a New Hampshire Licensed Attorney under Disciplinary Investigation.

(A) Recommendation to the Court. Upon receipt by the committee of an affidavit from a New Hampshire licensed attorney who intends to resign pursuant to the rules of the court, the committee, or a hearing panel designated for the purpose, shall review the affidavit and such other matters as it deems appropriate to determine either (1) to recommend to the court that the resignation be accepted and to recommend any terms and conditions of acceptance it deems appropriate, or (2) to recommend to the court that the resignation not be accepted with the reasons therefor. Any hearing panel so designated may be a hearing panel previously designated to conduct a hearing with respect to the conduct of such attorney. The committee shall submit the affidavit and its recommendation or the recommendation of the hearing panel to the court, and the proceedings, if any, before the court shall be conducted by bar counsel.

(B) Notification of Grievant. In the event the court accepts the resignation of a respondent and removes the respondent on consent, the committee by means of written notice shall notify the grievant of such action.

(2) Application for Reinstatement or Readmission.

(A) Timeliness after Suspension. An attorney who has been suspended for a specific period may not move for reinstatement until the expiration of the period of suspension, and upon the completion of all the terms and conditions set forth in the order of suspension.

(B) Procedure. A motion for reinstatement by an attorney suspended for misconduct rather than disability or an application for readmission by a New Hampshire licensed attorney who has been disbarred or has resigned while under disciplinary investigation shall be referred to the committee by the supreme court. Upon receipt of a motion for reinstatement or an application for readmission, the committee shall refer the motion or application to a hearing panel appointed by the committee. The administrator shall then cause a notice to be published in a newspaper with statewide circulation as well as the New Hampshire Bar News that the attorney-respondent has moved for reinstatement or applied for readmission. The notice shall invite anyone to comment on the motion or application by submitting said comments in writing to the administrator within twenty (20) days. All comments shall be made available to the attorney-respondent. Where feasible, the administrator shall give notice to the original grievant. The hearing panel shall promptly schedule a hearing at which the respondent shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this state and that the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive to the public interest. At the conclusion of the hearing, the hearing panel shall promptly file a report containing its findings and recommendations and transmit same, together with the record, to the committee. The committee shall review the report of the hearing panel and the record and shall file its own recommendations and findings with the court, together with the record, on or before such date as the court may set. Following the submission of briefs and oral arguments, if any, the court shall enter a final order.

(3) Conviction of Crime; Determination of Serious Crime.

Upon receipt by the committee of a certificate by the clerk of any court demonstrating that an attorney has been convicted of a crime in the State of New Hampshire or in any other state, territory or district, the committee shall determine whether the crime is a "serious crime" as defined in Supreme Court Rule 37(7)(b). Upon a determination by the committee that the crime is a serious crime, the committee chair shall file the certificate of conviction with the court.

(3) Formal Proceedings.

(a) Preliminary Provisions.

(1) Representation of Respondent.

When a respondent is represented by counsel in a formal proceeding, counsel shall file with the committee a written notice of such appearance, which shall state such counsel's name, address, and telephone number, the name and address of the respondent on whose behalf counsel appears, and the caption of the subject proceeding. Any additional notice or other written communication required to be served on or furnished to a respondent may be sent to the counsel in lieu of transmission to the respondent. In any proceeding where counsel has filed a notice of appearance pursuant to this section, any notice or other written communication required to be served on or furnished to the respondent shall also be served on or furnished to the respondent's counsel (or one of such counsel if the respondent is represented by more than one counsel) in the same manner as prescribed for the respondent, notwithstanding the fact that such communication may be furnished directly to the respondent.

(2) Format of Pleadings and Documents. Pleadings or other documents filed in formal proceedings shall comply with and conform to the rules from time to time in effect for comparable documents in the court.

(3) Avoidance of Delay.

All formal proceedings under this rule shall be as expeditious as possible. Only the committee chair may grant an extension of time in a formal proceeding, and only upon good cause shown. Application for such an extension shall be made, in advance, and in writing, where practicable, to the committee chair.

(4) Additional Evidence.

Whenever, in the course of any hearing under this rule, evidence shall be presented upon which another charge or charges against the respondent might be made, it shall not be necessary to prepare or serve an additional notice of charges with respect thereto, but the hearing panel may, after reasonable notice to the respondent and an opportunity to answer and be heard, proceed to the consideration of such additional charge or charges as if they had been made and served at the time of service of the notice of charges, and may render its decision upon all such charges as may be justified by the evidence in the case.

(b) Institution of Proceedings.

(1) Commencement of Formal Proceedings.

Except in cases of an emergency, the committee may institute formal disciplinary proceedings by serving on the respondent a notice of charges under subsection (2) only after following the procedure set forth in section (2)(a)(2), (3), and (5) of this rule.

(2) Notice of Charges.

The notice of charges shall set forth the allegations of misconduct against the respondent and the disciplinary rules alleged to have been violated. The notice of charges shall indicate the date and time and the place of the hearing and shall advise the respondent that the respondent is entitled to be represented by counsel and to present evidence in respondent's own behalf.

(3) Answer.

(A) General Rule. The respondent shall have no obligation to but may answer the notice of charges by serving and filing an answer and ten copies thereof with the committee within 15 days after service of the notice of charges, unless a shorter time is fixed by the committee chair and specified in the notice of charges.

(B) Contents of Answer. If the respondent elects to answer, the answer shall be in writing, and shall respond specifically to each allegation of the notice of charges and shall assert all affirmative defenses.

(4) No Other Pleadings.

Pleadings shall be limited to a notice of charges and an answer thereto.

(5) Assignment for Hearing.

The committee chair shall designate the hearing panel to which the matter is to be assigned. The committee chair shall also appoint a hearing panel chair. The administrator shall transmit copies of the notice of charges, and of the answer thereto, if any, and when available, to the members of such hearing panel.

(c) Conduct of Hearings.

(1) General Rules.

The hearing panel chair shall conduct the hearing. No record shall be required unless the respondent, at least seven days before the hearing, files a written request for a record, or unless the committee requests a record. If there is a record, a transcription may be obtained by anyone at the expense of the person requesting it, and it shall thereafter be provided within a reasonable time. The grievant and respondent shall have the right to be represented by counsel and to present their evidence. The hearing shall be public.

(2) Limiting Number of Witnesses.

The hearing panel may limit the number of witnesses who may be heard upon any issue before it to eliminate unduly repetitious or cumulative evidence.

(3) Additional Evidence.

At the hearing the hearing panel may, if it deems it advisable, authorize either the respondent or the grievant to file specific documentary evidence as a part of the record within such time as shall be fixed by the hearing panel chair.

(4) Oral Examination.

Witnesses may be examined orally by the members of the hearing panel. Witnesses whose testimony is to be taken, including the grievant and respondent, shall be sworn, or shall affirm, before their testimony shall be deemed evidence in the proceeding or any questions are put to them. Cross-examination of witnesses, including the grievant and respondent, shall be allowed but may be limited by the hearing panel chair if such cross-examination is not assisting the hearing panel in developing the facts relating to, or reaching a just and proper determination of, the matters before the hearing panel.

(5) Presentation and Effect of Stipulations.

Any party to a hearing, including the committee, may stipulate as to any relevant matters of fact or the authenticity of any relevant documents. Such stipulations may be received in evidence at a hearing, and when so received shall be binding on such parties with respect to the matters therein stipulated.

(6) Admissibility of Evidence.

(A) General Rule. All evidence which is deemed by the hearing panel chair to be relevant, competent and not privileged shall be admissible in accordance with the principles set out in section (1)(b) of this rule. Except as provided above, the formal rules of evidence shall not apply.

(B) Pleadings. The notice of charges and answer thereto shall, without further action, be considered part of the record.

(7) Reception and Ruling on Evidence.

When objections to the admission or exclusion of evidence are made the grounds shall be stated concisely. Formal exceptions are unnecessary. The hearing panel chair shall rule on the admissibility of all evidence.

(8) Copies of Exhibits.

When exhibits of a documentary character are received in evidence, copies shall, unless impracticable, be furnished to each member of the hearing panel present at the hearing. Legible copies shall be admissible, unless otherwise required by the hearing panel chair.

(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.

(d) Concluding Procedures.

(1) Determinations.

(A) Report of Hearing Panel. After hearing the evidence, the hearing panel shall make a written report to the committee, signed by the panel member preparing the report, setting forth the facts found by the hearing panel and the recommendation of the hearing panel. If the hearing panel is not unanimous in its recommendation, a minority report shall also be submitted to the committee. Both a hearing panel report and a minority report are part of the committee's deliberative process and shall not be available for public inspection.

(B) Committee Action. The committee shall consider the hearing panel report, and the minority report, if any, and shall determine if the charges against the respondent are sustained by clear and convincing evidence. If the committee determines that none of the charges are sustained, the committee chair shall so notify the grievant and the respondent. If the committee determines that any charge is sustained, the committee shall then determine the type of discipline to be imposed as follows: The committee shall have the power to issue a reprimand or, in the alternative, may seek disbarment (in the case of a New Hampshire licensed attorney), suspension, or public censure by filing a petition with the court. In the event the committee issues a reprimand, the committee chair shall so notify the grievant and respondent and shall further notify the respondent of his or her rights to appeal pursuant to section (3)(d)(3) of this rule.

(2) Form of Reprimand.

In the event that the committee determines that the proceeding should be concluded by reprimand, the committee chair shall give written confirmation thereof (which shall bear the designation "REPRIMAND") to the respondent, which notice shall also advise the respondent of:

(A) the charges which were sustained;

(B) any charges which were dismissed;

(C) the respondent's right under section (3)(d)(3) of this rule to appeal to the court; and

(D) the determination, if made, to refer the matter to the court.

(3) Appeal of Reprimand.

A respondent shall be entitled to appeal a reprimand by filing a written notice of appeal in accordance with the rules of the court. The appeal shall be public.

(4) Confidentiality and Public Access.

(a) Confidentiality of and Public Access to Committee Proceedings and Records.

(1) General Rule. The confidentiality of and public access to the records, files, and proceedings of the committee shall be governed by Supreme Court Rule 37.

(2) Public Access to Committee's Files.

(A) Grievance against Person Not Subject to Rules of Professional Conduct. Correspondence relating to a grievance against a person who is not subject to the Rules of Professional Conduct shall be available for public inspection for a period of two years. After this two-year period, the correspondence shall be sealed.

(B) Grievance Not Docketed as a Complaint. All records (other than work product, internal memoranda, and deliberations) relating to a grievance filed with the committee, which is against a person who is subject to the Rules of Professional Conduct but which is not docketed as a complaint, shall be maintained by the committee for two years from the date of filing, and shall be available for public inspection during this period. After this two-year period, the records shall be sealed.

(C) Complaints. All records (other than work product, internal memoranda, and deliberations) relating to a complaint that is docketed by the committee shall be retained by the committee and shall be available for public inspection in accordance with the provisions of Supreme Court Rule 37, unless the complaint has been annulled in accordance with the provisions of section (5) of this rule.

(D) Index of Complaints. The committee shall maintain an index of complaints docketed against each attorney, which shall contain pertinent information, including the outcome of the complaint. No index of grievances that are not docketed as complaints shall be maintained.

(b) Protective Order.

Any person or entity may request a protective order from the committee, or the committee may issue on its own initiative, a protective order prohibiting the disclosure of confidential, malicious, personal, or privileged information or material submitted in bad faith, and directing that the proceedings be so conducted as to implement the order. Upon the filing of a request for a protective order, the information or material that is the subject of the request shall be sealed pending a decision by the committee. The committee shall act upon the request within a reasonable time. Within 30 days of the committee's decision on a request for protective order, or of the committee's issuance of one on its own initiative, an aggrieved person or entity may request that the court review the matter. The material in question shall remain confidential after the committee has acted upon the request for protective order until such time as the supreme court has acted, or the period for seeking supreme court review has expired. A motion for review of the committee's decision about issuance of a protective order shall be filed as a confidential matter in the supreme court.

(5) Annulment.

(a) When Annulment May Be Requested.

A person who has been issued an admonition (under prior rules), or reprimand may at any time after five (5) years from the date of the admonition or reprimand apply to the committee for an order to annul the admonition or reprimand. A person against whom a complaint has been filed which has resulted in a finding of no misconduct, with or without a warning, may also apply to the committee for an order to annul the record at any time after five (5) years from the date of the finding of no misconduct.

(b) Matters Which May Not Be Annulled.

Notwithstanding the foregoing, an order of annulment will not be granted except upon order of the court if respondent's misconduct included conduct which constitutes an element of a felony or which included as a material element fraud, fraudulent misrepresentation, dishonesty, deceit, or breach of fiduciary duty.

(c) Consideration of Other Complaints.

When application has been made under subsection (a), the committee may consider any other complaints filed against the respondent and any other relevant factors.

(d) Effect of Annulment.

Upon entry of the order the respondent shall be treated in all respects as if an admonition, warning, or reprimand had not been rendered, except that, upon conviction of any other violation of the Rules of Professional Conduct after the order of annulment has been entered, the previous admonition, warning, or reprimand may be considered by the committee in determining the discipline to be imposed.

(e) Sealing of Records of Annulment.

Upon issuance of an order of annulment, all records or other evidence of the existence of the complaint shall be sealed, except that the committee may keep the docket or card index showing the names of each respondent and grievant, the final disposition, and the date that the records relating to the matter were sealed.

(f) Disclosure of Annulled Matter.

Upon issuance of an order of annulment, the committee shall not thereafter disclose the record of a complaint which resulted in a finding of no misconduct, admonition, warning, or reprimand and the respondent shall be under no obligation thereafter to disclose the admonition, warning, or reprimand.

(g) Denial of Request for Annulment.

Upon denial of an order of annulment, the respondent may appeal to the court within thirty (30) days of the date of receipt of the denial. Upon such appeal, the burden shall be upon the respondent to show that the committee's exercise of its discretion in denying the order of annulment is unsustainable.

(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 D

Amend Supreme Court Rule 12-C by deleting it and replacing it with the following:

Rule 12-C. JUDICIAL REFEREE PANELS

The court may, either on consideration of the notice of appeal or after briefing, refer a case to a judicial referee panel consisting of three retired supreme, superior, full-time district, or full-time probate court justices acting as judicial referees pursuant to RSA 493-A:1. Cases referred shall involve claims of error in the application of settled law, of an unsustainable exercise of discretion where the law governing that discretion is settled, or of insufficient evidence or a result against the weight of the evidence. The parties will be notified of this referral, and a scheduling order will be issued. The parties may file a joint motion requesting that a case be referred to a judicial referee panel. The procedure for hearings before a judicial referee panel shall be the same as provided in these rules with respect to hearings before the full court. Any motions made in a case referred to a judicial referee panel shall be determined by the panel.

The decision of a judicial referee panel shall be by written memorandum decision, which shall be submitted to the court for its review and approval. If the court approves the decision of a judicial referee panel, any party aggrieved by the decision may move for rehearing or reconsideration as provided in Rule 22. If a motion for rehearing or reconsideration is granted or if the court does not approve the decision of a judicial referee panel, the court may make a final disposition of the cases based on the record and pleadings before the judicial referee panel, including the oral argument, or it may order new briefing and/or oral argument.

Cases decided under this rule shall be published in the New Hampshire Bar News and shall not be regarded as establishing precedent or be cited as authority in unrelated cases unless the court also orders the decision to be published in the New Hampshire Reports.

APPENDIX E

Amend Supreme Court Rule 49 by deleting it and replacing it with the following:

Rule  49.  FEES IN SUPREME COURT

A. Entry of Appeal $125.00

B. Certification of Record to Federal Courts $75.00

C. Bar Examination Fee $140.00

D. Character and Fitness Investigation Fee $125.00

E. Certificate of Admission $5.00

APPENDIX F

Amend Supreme Court Rule 55(5) by deleting it and replacing it with the following:

(5) Administration of the Fund. The Public Protection Fund shall be administered by a nine member committee, appointed by the President of the New Hampshire Bar Association with the approval of the association's Board of Governors, which committee shall include at least two public members. Five members shall constitute a quorum. All decisions of the committee shall be made by a majority of the members present and voting. The committee shall have the power to propose regulations to clarify the intent of this rule, which regulations shall become effective after review and approval by the court. Decisions of the committee as to whether or not to pay claims and the amount of payments shall be within the committee's discretion, subject to the annual limits stated above, and will be reviewable only for unsustainable exercise of discretion. Review of decisions of the committee shall be by a panel of three retired judges, appointed by the New Hampshire Supreme Court, whose decisions shall be final. Within 120 days after the end of each fund year, the New Hampshire Bar Association shall report to the court about the claims made, approved and paid, assessments received, income earned, and expenses incurred in the preceding fund year. Reasonable expenses incurred by the New Hampshire Bar Association in administering the fund, including overhead, staff time, and professional fees, shall be reimbursed by the fund as a cost of operation, subject to the review and approval of the court.