THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

 

O R D E R

 

 

R-2001-004, In re March and June 2001 Reports of the Advisory Committee on Rules

The New Hampshire Supreme Court Advisory Committee on Rules, following public hearings before the committee, has reported the following rules to the New Hampshire Supreme Court with a recommendation that they be adopted:

A. SUPREME COURT RULES

1. Supreme Court Rule 33(2) re representation by non-lawyers (Appendix A).

2. Supreme Court Rule 37(2)(j) re definition of "warning" issued by professional conduct committee (Appendix B).

3. Supreme Court Rule 37(6) re issuance of subpoenas duces tecum in attorney disciplinary proceedings (Appendix C).

4. Supreme Court Rule 37(13) re referrals for remedial action in cases in which attorney's practice requires corrective action (Appendix D).

5. Supreme Court Rule 37A(1)(c) re definition of "warning with referral" issued by professional conduct committee (Appendix E).

6. Supreme Court Rule 37A(1)(e) re issuance of "warning with referral" by professional conduct committee (Appendix F).

7. Supreme Court Rule 37A(3)(c) re photographing, recording and broadcasting hearings before the professional conduct committee (Appendix G).

8. Supreme Court Rule 37A(3)(d)(4) re requests to the professional conduct committee for reconsideration (Appendix H).

9. Supreme Court Rule 37A(6) re requests to the professional conduct committee for reconsideration (Appendix I).

10. Supreme Court Rule 38, Canon 5 (C)(4)(c) re restrictions on loans from attorneys to judges (Appendix J).

11. Supreme Court Rule 40(3)(i) re procedural rules of the Committee on Judicial Conduct (Appendix K).

12. Supreme Court Rule 40(3-a)(k) re procedural rules of the Committee on Judicial Conduct (Appendix L).

13. Supreme Court Rule 41 re practice of law by limited liability entities (Appendix M).

14. Supreme Court Rule 42 (7)(b) re time within which attorneys admitted to bar may take practical skills course (Appendix N).

15. Supreme Court Rule 51 B. re expanding membership of the Advisory Rules Committee (Appendix O).

 

B. SUPERIOR COURT RULES

1. Superior Court Rule 14 re representation by non-lawyers (Appendix P).

2. Superior Court Rule 63-A re subpoenas for trial (Appendix Q).

 

C. SUPERIOR COURT ADMINISTRATIVE RULES

1. Superior Court Administrative Rule 12-9 re authority of marital masters to hear matters relating to domestic relations (Appendix R).

 

D. DISTRICT AND MUNICIPAL COURT RULES

1. District and Municipal Court Rule 1.3 D re representation by non-lawyers (Appendix S).

2. District and Municipal Court Rules 5.1 – 5.12 re landlord-tenant proceedings (Appendix T).

 

E. PROBATE COURT RULES

1. Probate Court Rule 14 re representation by non-lawyers. This proposal when submitted by the Advisory Committee on Rules proposed to amend Probate Court Rule 4, which has since been repealed effective August 1, 2001. The court has modified the proposal submitted by the rules committee in light of the repeal of Rule 4, and hereby submits the modified proposal for public comment (Appendix U).

F. RULES OF PROFESSIONAL CONDUCT

1. Rules of Professional Conduct, Rule 8.1 re failure to attend a hearing when ordered to do so by a disciplinary authority (Appendix V).

2. Rules of Professional Conduct, Rule 8.5 re application of professional conduct rules to non-lawyers (Appendix W).

G. RULES OF EVIDENCE

1. Rule of Evidence 803(6) re exception to hearsay rule for records of regularly conducted activity (Appendix X).

2. Rule of Evidence 902 re self-authentication of certified domestic and foreign records of regularly conducted activity (Appendix Y).

On or before October 1, 2001, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the above rules. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at "Rulescomment@courts.state.nh.us."

 

July 6, 2001

ATTEST: ___

Howard J. Zibel, Clerk
Supreme Court of New Hampshire

 

APPENDIX A

Amend Supreme Court Rule 33(2) by deleting it and replacing it with the following.

 

(2) Without the prior written approval of the court, no person who is not a lawyer may represent a person other than himself or be listed on the notice of appeal or other appeal document, or on the brief, or sit at counsel table in the courtroom or present oral argument. Request for such written approval shall be made in writing at the time of filing the appeal or, if it relates to briefing or oral argument, not later than 15 days before the date scheduled for filing the brief or for oral argument. The request must contain: (a) a power of attorney signed by the party, and witnessed and acknowledged before a justice of the peace or notary public, constituting another person as his or her attorney to appear in the particular action; and (b) an affidavit under oath in which said other person discloses (i) all of said other person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute), (ii) all instances in which said other person has been found by any court to have violated a court order, and (iii) all prior proceedings in which said other person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court. This rule is intended to accommodate, and not to be in derogation of, the right of a party to appear personally by a citizen of good character, as set forth in RSA 311:1.

 

APPENDIX B

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

 

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

APPENDIX C

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

 

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

 

APPENDIX D

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

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

 

APPENDIX E

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

 

(c) Definitions.

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

Administrator - The administrator of the committee, or designee.

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

Bar Counsel - Counsel engaged by the committee.

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

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

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

Court - The New Hampshire Supreme Court.

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

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

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

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

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

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

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

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

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

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

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

Parties - The committee and the respondent.

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

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

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

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

Rule - The provisions of Supreme Court Rule 37A.

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

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

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

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

APPENDIX F

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

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

APPENDIX G

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

 

(9) Photographing, Recording and Broadcasting.

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

APPENDIX H

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

 

APPENDIX I

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

(6) Request for Reconsideration.

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

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

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

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

APPENDIX J

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

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

 

APPENDIX K

 

Amend Supreme Court Rule 40(3)(i) by adding an additional sentence to the end of said subparagraph, so that said subparagraph as amended shall read as follows:

(i) Any violation of these provisions relating to the duty of confidentiality imposed by this rule 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 (3), terminating the proceedings with or without public comment, or such other action as the committee deems appropriate in the circumstances. Notwithstanding the provisions of this rule, the committee may disclose to an appropriate law enforcement authority any matter that comes before it, and shall, at the same time, inform the chief justice or the senior associate justice of the supreme court of the matter. Notwithstanding the provisions of this rule, the committee may also disclose relevant information that is otherwise confidential to agencies or commissions authorized to investigate the qualifications of judicial candidates, provided that the judge who is the subject of the request has signed a waiver permitting the requesting agency or commission to obtain confidential information, and further provided that the agency or commission shall maintain the confidentiality of the information provided to the fullest extent possible consistent with the carrying out of its official duties unless it obtains a written waiver of confidentiality from the grievant or complainant and any other person whose confidentiality is protected by this rule.

 

APPENDIX L

Amend Supreme Court Rule 40(3-a)(k) by adding an additional sentence to the end of said subparagraph, so that said subparagraph as amended shall read as follows:

 

(k) Any violation of these provisions relating to confidentiality shall constitute contempt of the supreme court. The committee may enforce these provisions by appropriate proceedings for contempt before any justice of the supreme court. Notwithstanding the provisions of this rule, the committee may disclose to an appropriate law enforcement authority any matter that comes before it. Notwithstanding the provisions of this rule, the committee may also disclose relevant information that is otherwise confidential to agencies or commissions authorized to investigate the qualifications of judicial candidates provided that the judge who is the subject of the request has signed a waiver permitting the requesting agency or commission to obtain confidential information, and further provided that the agency or commission shall maintain the confidentiality of the information provided to the fullest extent possible consistent with the carrying out of its official duties unless it obtains a written waiver of confidentiality from the complainant and any other person whose confidentiality is protected by this rule.

 

APPENDIX M

Amend Supreme Court Rule 41 by striking out said rule in its entirety and inserting in place thereof the following so that said rule as amended shall read as follows:

RULE 41. LIMITED LIABILITY ENTITIES

(1) Definitions. The following terms used in this rule shall have the meanings set forth below:

(a) "Limited liability entity" shall mean a professional corporation, a professional limited liability company, or a limited liability partnership, that engages in the practice of law in the State of New Hampshire and which is organized under the laws of any state or the District of Columbia which permits a limited liability entity to be engaged in the practice of law.

(b) "Owner" shall mean a shareholder of a professional corporation, a member of a professional limited liability company, or a partner of a limited liability partnership.

(c) "Manager" shall mean an individual who is licensed to practice law in this state or who is duly licensed by the licensing authority of a state or territory of the United States or the District of Columbia and who is named as a manager of a professional limited liability company in or designated as a manager of a professional limited liability company pursuant to a professional limited liability company agreement or similar instrument under which the professional limited liability company is formed.

(2) Applicable Law. The provisions of the laws of this state shall be applicable to attorneys practicing law in this state, subject to the terms and conditions of this rule. Nothing in this rule is to be construed to permit a limited liability entity to practice law in New Hampshire if said practice is prohibited by New Hampshire statute.

(3) Shareholders, Members, Managers, Officers, Directors, Employees. In addition to other provisions required by law, each limited liability entity shall assure compliance with the following requirements:

(a) All owners shall be persons who are duly licensed by this court to practice law in this state, or who are duly licensed by the licensing authority of a state or territory of the United States or the District of Columbia.

(b) All owners shall be in good standing before this court or before the licensing authority of the jurisdiction(s) in which they are actively engaged in the practice of law.

(c) All owners shall own their shares or other ownership interests in their own right.

(d) All owners shall be persons who, except for temporary absence due to illness or accident, time spent in the Armed Services of the United States, vacations and leaves of absence not to exceed two years, are actively engaged in the practice of law with the limited liability entity, in this state or in another jurisdiction in which they have been admitted to practice.

(e) Any owner who ceases to be eligible to be an owner and the executor, administrator, or other legal representative of a deceased or incapacitated owner shall be required to dispose of that owner's shares or other ownership interest as soon as reasonably possible, either to the limited liability entity or to an individual duly qualified to be an owner of the limited liability entity.

(f) All owners and managers of and attorneys employed by a limited liability entity shall by being licensed to practice law in this state, be subject to and bound by the provisions of this rule, including, without limitation, paragraph (10) hereof.

(g) All directors and officers of a professional corporation and all members, managers and officers of a professional limited liability company, as the case may be, shall be owners.

(h) No owner or attorney employed by a limited liability entity shall be an owner, director, officer, member or manager of more than one limited liability entity; provided, however, that an attorney who is acting as the fiduciary representative of the estate of an attorney may hold the stock or other interest of the attorney in another limited liability entity for a reasonable time during administration of the estate.

(i) Attorneys who are partners, members, managers, or employees of the limited liability entity and who practice law in New Hampshire shall be duly licensed by this court to practice law.

(j) One or more owners of the limited liability entity shall be admitted to practice law by this court and shall be engaged in the practice of law in New Hampshire.

(4) Standards of Conduct.

(a) Nothing in this rule shall be deemed to diminish or change the obligation of each attorney who is an owner of or who is employed by the limited liability entity to conduct the practice of law in accordance with generally recognized standards of professional conduct and in accordance with the specific standards which may be promulgated by this court or the licensing authority of the jurisdiction(s) in which the attorney practices. Any attorney who, by act or omission, causes the entity to act or fail to act in a way which violates any applicable standard of professional conduct, including any provision of this rule, shall be personally responsible for such act or omission and shall be subject to discipline therefor.

(b) The final responsibility for the delivery of professional services in this state shall be vested in New Hampshire licensed attorneys.

(5) Confidentiality. Nothing in this rule shall be deemed to modify, abrogate or reduce the attorney-client privilege or any comparable privilege or relationship, whether statutory or derived from the common law.

(6) Name. The name of the limited liability entity shall contain words or abbreviations which indicate that it is a limited liability entity.

(7) Identity of Non-Resident Attorneys.

(a) Within thirty (30) days after the organization of a limited liability entity under the laws of the State of New Hampshire or the qualification to do business in New Hampshire of a foreign limited liability entity, the limited liability entity shall file with the clerk of this court a written list of the names and addresses of the owners or managers of the limited liability entity who are not licensed to practice law in the State of New Hampshire and a notarized statement certifying that such owners or managers are in good standing before the licensing authority of the jurisdiction(s) in which they are actively engaged in the practice of law. Within thirty (30) days after any change in the status of such owners or managers, a revised list setting forth the information required by the preceding sentence shall be filed with the clerk of this court. There shall also be filed with the clerk of this court such other information as this court may from time to time prescribe.

(b) In the event that any disciplinary proceeding shall be instituted against any attorney not licensed in New Hampshire who is an owner, manager, or employee of a limited liability entity, notice of such proceeding shall be given to the clerk of this court forthwith.

(c) All applications, reports, and other documents required to be filed with this court by this rule shall be signed and verified by an owner of the limited liability entity who is an attorney licensed to practice law by this court.

(8) Trust Accounts. Each limited liability entity which maintains an office in a state other than the State of New Hampshire shall comply with the provisions of Rules 50 and 50-A, subject, however, to any requirements which may be imposed by the comparable rules adopted by the highest court of that state with respect to trust funds being maintained in that state. To the extent that the rule of such other state may apply to trust funds maintained in that state, the limited liability entity shall comply with such rule and shall so certify to the clerk of this court annually on or before August 1.

(9) Letterhead. A limited liability entity which practices law in a jurisdiction other than New Hampshire and which lists its employees on its letterhead and in other permissible listings shall do so in a manner which makes clear the jurisdictional limitations on those employees of the limited liability entity not licensed to practice in all listed jurisdictions.

(10) Liability. The liability of individuals and limited liability entities for performance of professional services in this state shall be determined under the common law and statutory law of this state.

 

APPENDIX N

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

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

 

APPENDIX O

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

B. Appointment of Advisory Committee on Rules

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

APPENDIX P

 

Amend Superior Court Rule 14 by deleting the last paragraph of the rule and replacing it with the following:

No person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, unless of good character and until there is on file with the Clerk: (1) a power of attorney signed by the party for whom he or she seeks to appear and witnessed and acknowledged before a Justice of the Peace or Notary Public, constituting said person his or her attorney to appear in the particular action; and (2) an affidavit under oath in which said person discloses (a) all of said person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute), (b) all instances in which said person has been found by any court to have violated a court order, and (c) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court.

 

APPENDIX Q

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

 

SUBPOENAS FOR TRIAL

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

 

APPENDIX R

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

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

APPENDIX S

Amend District and Municipal Court Rule 1.3 by deleting section D. and replacing it with the following:

D. No person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, unless of good character and until there is on file with the Clerk: (1) a power of attorney signed by the party for whom he or she seeks to appear and witnessed and acknowledged before a Justice of the Peace or Notary Public, constituting said person his or her attorney to appear in the particular action; and (2) an affidavit under oath in which said person discloses (a) all of said person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute), (b) all instances in which said person has been found by any court to have violated a court order, and (c) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court.

 

APPENDIX T

Amend District and Municipal Court Rules 5.1 through 5.12, previously adopted as temporary rules, as follows, and adopt them, as amended, as permanent rules:

 

LANDLORD AND TENANT ACTIONS

 

5.1 Landlord and Tenant Writ

The Clerk shall deliver blank writs for landlord and tenant actions to no one except attorneys who have been admitted to the Supreme Court or to individuals who shall elect to prosecute their own suit or to have a citizen of good character who is not an attorney of the Court prosecute their suit for them. Blank writs delivered to individuals not attorneys of the Court shall be entitled by the Clerk.

No attorney who has been admitted by the New Hampshire Supreme Court shall cause any blank writ to be used by any other person than himself or some attorney of the Court.

5.2 Return Day

Return day for writs brought pursuant to RSA 540 shall be only on such days that the Court is open for business. There shall be no trial on the return day.

5.3 Entry of Actions

A. Landlord and Tenant Writs shall be entered with the Court prior to service of process on the defendant. At the time of entry, the entry fee is payable to the Clerk of Court and the case shall be docketed. At the time of entry, the writ shall be accompanied by proof of service of the notice to quit. Proof of service must be shown by a true and attested copy of the notice accompanied by an affidavit of service, but the affidavit need not be sworn under oath. See RSA 540:5.

B. Writs may be accepted by the Court where a mailing address has been listed by the landlord, provided that the landlord also signs a statement on the writ attesting that the Court has jurisdiction over the action.

C. The return of service of process upon the defendant shall be filed by the plaintiff with the Court on or before the earlier of the following: (1) the day following the return day named in the writ; or (2) the time at which the hearing scheduled pursuant to RSA 540:13, V is scheduled to begin.

D. The Clerk may refuse to accept any pleading or motion that the Clerk determines does not comply with these rules. In the event an objection is made to such determination, a written motion may be made to the Court to rule on such determination.

 

5.4 Failure to Answer

If the defendant does not file an appearance on or before the return day, a notice of default shall be issued that the plaintiff may recover possession of the demanded premises and costs; and, if the writ includes a claim for unpaid rent the notice of default may include the amount of unpaid rent claimed, not to exceed fifteen hundred dollars ($1,500.00) in addition to the costs. A writ of possession and notice of judgment shall also issue, but not until the expiration of at least three days after the Clerk's notice of default and upon the filing of a military affidavit and, if the writ includes a claim for unpaid rent, an affidavit of damages.

 

5.5 Appearance, Setoff and Counterclaims

A. If the defendant files an appearance in an action which has been docketed prior to service of process in accordance with Rule 5.3(A), the matter will be set for trial to occur within ten days following the date of the filing of the appearance. If (1) service of process occurs prior to the action being docketed, (2) the Court waives the violation of Rule 5.3(A) and allows the action to be docketed, and (3) the defendant files an appearance prior to the action being docketed, then trial will be scheduled to occur within ten days following the date of the docketing of the action.

B. If the plaintiff claims unpaid rent, and if the defendant files any claim or counterclaim which offsets or reduces the amount owed to the plaintiff, then any such claim or counterclaim must be filed on or before the RETURN DAY set forth in the Landlord and Tenant Writ and a copy thereof shall be mailed or delivered to the plaintiff or plaintiff's attorney. No such claim or counterclaim shall be afterwards received except upon leave of Court for good cause shown and upon such terms as justice may require.

C. The Court may in all cases order either party to plead and also to file a statement in sufficient detail to give to the adverse party and to the Court, reasonable knowledge of the nature and grounds of the action or defense. Upon failure to comply with such order, the Court may take such action as justice may require.

 

5.6 Discovery and Continuances

A. Both parties to a landlord and tenant action shall have a right to engage in discovery prior to the hearing on the merits, subject to the time frames set forth below:

1. All requests for discovery shall be made within five (5) days of the RETURN DAY.

2. Responses to interrogatories, requests for admissions and production of documents shall be made within fourteen (14) days after receipt of said requests.

3. Depositions shall be taken no less than three (3) days from the date of the notice of deposition and within no less than seven (7) days of the scheduled trial date.

B. Upon the request of any party, the Court may grant a continuance of the scheduled trial date to allow time to complete discovery. Landlord and tenant actions shall be given priority on the Court's docket and, whenever possible, rescheduled within thirty (30) days.

 

5.7 Writ of Possession and Judgment

A. If the defendant fails to appear for trial, or if upon trial it is considered by the Court that the plaintiff has sustained the complaint, judgment shall be rendered that the plaintiff recover possession of the demanded premises and costs, and a writ of possession shall issue.

1. If the defendant failed to appear for trial, then the writ of possession and notice of judgment shall not issue until the expiration of at least three days after the Clerk's notice of default and, if the writ includes a claim for unpaid rent, upon the filing of an affidavit of damages.

2. If upon trial the plaintiff sustained the complaint, then the writ of possession shall not issue until the expiration of the seven day period for filing a Notice of Intent to Appeal set forth in RSA 540:20. If the defendant files a timely Notice of Intent to Appeal, then the writ of possession shall not issue until the expiration of the appeal period set forth in Supreme Court Rule 7, except as otherwise provided in RSA 540:25, I, or following an order from the Supreme Court dismissing the defendant's possessory appeal or deeming the defendant's possessory appeal waived for failure to comply with RSA 540:25, II.

B. In all cases in which a judgment for plaintiff is rendered where the action is based upon nonpayment of rent, the Court shall determine and set forth in its order the amount which must be paid into Court on a weekly basis in the event defendant appeals. This amount is equal to the actual weekly rent or the periodic rent converted into a weekly sum.

C. In all cases which include a claim for unpaid rent the Court's judgment shall include a money judgment on the plaintiff's claim and any setoff or counterclaim by defendant.

 

5.8 Damages

A. The Landlord and Tenant Writ shall contain a space for the plaintiff to claim damages for nonpayment of rent and require a statement of the amount thereof.

B. In rendering judgment the Court is limited to a judgment of not more than fifteen hundred dollars ($1,500.00).

 

5.9 Notice Form

The Landlord and Tenant Writ shall incorporate or have attached to it the following notice:

If you desire to be heard on the matters raised in these papers, you must notify the Court by filing an appearance form with the Clerk of Court on or before the date specified on this writ next to the words "RETURN DAY". (These forms are available at the Clerk's Office.) Once you have filed your appearance, a date for a hearing will be set by the court and you will be notified by mail. You do not have to physically appear in court on the RETURN DAY since there will be no hearing on that day. If the landlord claims unpaid rent and if you file a claim or counterclaim which offsets or reduces the amount owed to the landlord, you must file the claim or counterclaim on or before the RETURN DAY shown on this Landlord and Tenant Writ. Space is provided on the appearance form for making the claim or counterclaim. IF YOU DO NOT FILE AN APPEARANCE FORM, IT WILL BE ASSUMED YOU DO NOT WISH TO CONTEST THE ACTION, A DEFAULT JUDGMENT WILL BE ENTERED AGAINST YOU, WHICH MAY INCLUDE ANY UNPAID RENT CLAIMED BY THE LANDLORD, AND A WRIT OF POSSESSION MAY ISSUE.

5.10 Post Trial Motions and Appeals

A. Post trial motions in all cases shall be filed within seven days after the date of the Clerk's Notice of Judgment.

B. Appeals are initiated by filing a Notice of Intent to Appeal with the Clerk within seven days after the date of the Clerk's Notice of Judgment. If the possessory action was based on nonpayment of rent and the defendant files a Notice of Intent to Appeal, the defendant must, at the time the defendant files the Notice of Intent to Appeal, pay into Court one week's rent as determined by the Court. The appeal shall otherwise be filed in accordance with Supreme Court rules.

C. Prior to the final decision on appeal, if the duty to pay rent or a portion thereof is not in dispute, the District Court shall have the authority to pay to the landlord any rent collected by the clerk in excess of eight weeks' rent upon motion and a showing of need.

D. The filing of a post trial motion does not stay the running of the seven day period for filing a Notice of Intent to Appeal.

5.11 Dismissal of Appeals

A. Possessory Action Instituted for Nonpayment of Rent

If the possessory action was instituted on the basis of nonpayment of rent, during pendency of the appeal, rent is payable to the Court on a weekly basis and is due on the same day of the week on which the Notice of Intent to Appeal was filed. If rent is not paid by the due date, the Court shall immediately mail a notice of default to the tenant and issue a writ of possession to the landlord. If, however, the tenant pays the Clerk the entire amount of rent due since the filing of the Notice of Intent to Appeal prior to the service of the writ by the sheriff, the writ of possession shall be recalled and the appeal shall be reinstated. Unless the appeal is reinstated, the District Court shall vacate the appeal and award the plaintiff the rent money that has been paid into Court. The District Court shall notify the Supreme Court of any such action.

B. Possessory Action Instituted for Reason Other than Nonpayment of Rent

If the possessory action was instituted for a reason other than nonpayment of rent, the defendant shall pay into the Court or to the plaintiff, as the Court directs, all rents or portions thereof becoming due from the date the Notice of Intent to Appeal is filed with the District Court. In any case in which the duty to pay rent or a portion thereof is in dispute, the defendant shall be required to pay such portions of the rents becoming due after the notice of intent is filed into Court, as the Court may direct, which amounts shall be held in escrow until a final decision is rendered. If the defendant fails to make a rental payment as it comes due, the plaintiff shall file an affidavit setting forth the defendant's failure to make timely payment along with a motion to dismiss defendant's appeal. A copy of the motion and affidavit shall be filed with the Supreme Court. The District Court shall file a written recommendation to the Supreme Court that the motion be granted unless, within five (5) days of the filing of plaintiff's motion, defendant files an affidavit setting forth that timely tender of payment was made or that defendant had a lawful reason for failing to tender payment. If defendant files such an affidavit in a timely manner, a hearing shall be scheduled on the motion within ten (10) days of the filing of defendant's affidavit. Following hearing, the District Court shall recommend in writing to the Supreme Court what action should be taken on the motion.

 

5.12 Dismissal of Writs After Sixty Days

Whenever a Landlord and Tenant Writ has been entered with the Court, and neither an appearance nor the return of service of process has been filed with the Court within sixty days following the date of said entry, such action may upon motion or upon the Court's own motion be dismissed. The order of dismissal may be vacated upon motion after notice for cause shown upon such terms and conditions as the Court may impose. Any motion to vacate shall be filed within seven days after the date of the Clerk's Notice of the order of dismissal.

 

 

APPENDIX U

Amend Probate Court Rule 14 (adopted as a temporary rule by order dated May 16, 2001) by deleting said rule and replacing it with the following:

RULE 14. APPEARANCES – General and Special

Any party may appear before the court in person, or by any citizen of good character, or by an attorney authorized to practice in the courts of this state; provided, however, that no person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself until there is on file with the Register: (1) a power of attorney signed by the party for whom he or she seeks to appear and witnessed and acknowledged before a Justice of the Peace or Notary Public, constituting said person his or her attorney to appear in the particular action; and (2) an affidavit under oath in which said person discloses (a) all of said person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute), (b) all instances in which said person has been found by any court to have violated a court order, and (c) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court. The person so appearing shall file with the Register a written appearance notice giving his name, his residence, the matter in which he appears, the name of the person or persons for whom he appears and their respective mailing addresses, and the Register shall enter the appearance on the docket. In contested matters, the notice of appearance shall be forwarded to the adverse party by the party so appearing and certification of such shall be made to the court.

Any Party may appear Pro Se, or be represented by an Attorney. Attorneys and Pro Se Parties shall enter an Appearance Form before filing Pleadings or personally appearing before the Court. An attorney-in-fact shall attach a copy of the Power of Attorney and affidavit to the Appearance Form. No Appearance Form shall be required to be filed by the Petitioner, or if represented, by the Petitioner's Attorney or by a guardian ad litem, except as required by the previous paragraph of this rule.

The Appearance Form shall identify the Attorney, or Pro Se Party's name, address, the matter in which the Person appears and the name and address of the Party or Parties for whom the Person appears.

Copies of the Appearance Form shall be forwarded to all Parties, or if represented, to their Attorneys by the Party so appearing. A statement of compliance shall accompany all Appearance Forms.

The filing of an Appearance shall not constitute a general objection or denial. Any objections or denials must be raised in a separate Pleading. A Special Appearance shall be deemed a General Appearance thirty (30) days after the Return Day of the action, unless a motion to dismiss on jurisdictional grounds is filed within that time.

 

 

APPENDIX V

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

Rule 8.1. Bar Admission and Disciplinary Matters

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

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

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

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

APPENDIX W

Amend Rule 8.5 of the Rules of Professional Conduct by amending the caption and adding a new section (C), so that the caption as amended and Rule 8.5(C) shall provide as follows:

Rule 8.5. Disciplinary Authority; Choice of Law; Application of Rules to Nonlawyer Representatives

. . . .

(C) Application of Rules to Nonlawyer Representatives. Rules 1.2, 1.3, 1.4, 1.14, 1.15, 3.1, 3.2, 3.3, 3.4, 3.5, 4.1, 4.2, 4.3, 4.4, 8.2(a), and 8.4 of the Rules of Professional Conduct shall apply to persons who, while not attorneys at law, are permitted to represent other persons before the courts of this State pursuant to RSA 311:1. For violations of said Rules, the Presiding Judge or Justice may revoke such representation.

 

 

APPENDIX X

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

(6) Records of Regularly Conducted Activity

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

APPENDIX Y

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

 

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

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

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

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

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

 

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

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

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

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

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