THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

 

O R D E R

 

R-2003-0002, In re 2003 Annual Report of the Advisory Committee on Rules

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

 

A. SUPREME COURT RULES

1. Supreme Court Rule 24 re mandates (Appendix A).

2. Supreme Court Rule 32 re counsel in criminal cases (Appendix B).

3. Supreme Court Rule 33(2) re nonmember of the New Hampshire bar (Appendix C).

4. Supreme Court Rule 37 re Attorney Regulation System (Appendix D).

5. Supreme Court Rule 37(3) re committee on professional conduct (Appendix E). The Advisory Rules Committee recommends that if the court does not adopt the amendments to Rule 37 set forth in Appendix D, then, in the alternative, Rule 37(3) should be adopted as set forth in Appendix E.

6. Supreme Court Rule 37A re rules and procedures of Attorney Regulation System (Appendix F).

7. Supreme Court Rule 37A(2)(a)(6) re rules and procedures of the committee on professional conduct (Appendix G). The Advisory Rules Committee recommends that if the court does not adopt the amendments to Rule 37A set forth in Appendix F, then, in the alternative, Rule 37A(2)(a)(6) should be adopted as set forth in Appendix G.

8. Supreme Court Rule 38, Application of the Code of Judicial Conduct section A re Code of Judicial Conduct (Appendix H).

9. Supreme Court Rule 38, Application of the Code of Judicial Conduct section C re Code of Judicial Conduct (part-time judges) (Appendix I).

10. Supreme Court Rule 39(2)(a) re committee on judicial conduct (Appendix J).

11. Supreme Court Rule 39(4)(a) re committee on judicial conduct (Appendix K).

12. Supreme Court Rule 42(10)(a)(iv)(B) re admission to bar on motion (Appendix L).

 

B. SUPERIOR COURT RULES

1. Superior Court Rule 21 re filing and service of pleadings (Appendix M).

2. Superior Court Rule 64-B re jurors asking written questions at trial (Appendix N).

3. Superior Court Rule 86 re trustees (Appendix O).

4. Superior Court Rule 87(b) re taxation of costs (Appendix P).

5. Superior Court Rule 195-A re attendance of minors at depositions and hearings (Appendix Q).

 

C. SUPERIOR COURT ADMINISTRATIVE RULES

1. Superior Court Administrative Rule 1-6 re authority of clerks (Appendix R).

2. Superior Court Administrative Rules chapter 12 re the marital master program (Appendix S).

3. Superior Court Administrative Rules chapter 13 (Appendix T).

 

D. DISTRICT AND MUNICIPAL COURT RULES

1. District and Municipal Court Rule 1.3-A re filing and service of pleadings (Appendix U).

2. District and Municipal Court Rule 3.22 re trustees (Appendix V).

 

E. PROBATE COURT RULES

1. Probate Court Rules 1 through 171 and Preface (Appendix W).

 

F. FAMILY DIVISION PILOT PROGRAM RULES

1. Family Division Pilot Program Rule 8 re filing and service of pleadings (Appendix X).

2. Family Division Pilot Program Rule 21-A re attendance of minors at depositions and hearings (Appendix Y).

On or before Friday, August 1, 2003, 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

Copies of the proposed changes are available upon request to the clerk of the supreme court at the N.H. Supreme Court Building, 1 Noble Drive, Concord, New Hampshire 03301 (Tel. 271-2646). In addition, the proposed changes are available on the Internet at:

http://www.courts.state.nh.us/index.htm

 

The current rules of the New Hampshire state courts are also available on the Internet at:

http://www.courts.state.nh.us/rules/index.htm

 

June 12, 2003

 

                                                                                    ATTEST: Eileen Fox, Clerk
                                                                                                        Supreme Court of New Hampshire

APPENDIX A

Adopt Supreme Court Rule 24 on a permanent basis; Rule 24 was adopted on a temporary basis by order dated October 28, 2002:

RULE 24. MANDATE

(1) Within 7 days after the time to file a motion for rehearing or reconsideration has expired, or within 7 days after issuance of an order denying a timely motion for rehearing or reconsideration, whichever is later, the clerk of the supreme court shall forward to the clerk of the lower court or of the administrative agency a mandate. The court may shorten or extend this period of time.

(2) Unless the court directs that a formal mandate issue, the mandate shall consist of a certified copy of the court's opinion or final order.

(3) The mandate is effective when issued.

 

 

APPENDIX B

Adopt Supreme Court Rule 32 on a permanent basis; Rule 32 was adopted on a temporary basis by order dated June 19, 2002:

RULE 32. COUNSEL IN CRIMINAL CASES

 

(1) Whether retained by the defendant or appointed by a lower court, trial counsel in a criminal case shall be responsible for representing the defendant in the supreme court unless the supreme court relieves counsel from this responsibility for good cause shown.

(2) A motion to withdraw as counsel on appeal in a criminal case must state reasons that would warrant the grant of leave to withdraw. Unless prior approval has been obtained from the court for good cause shown upon exceptional circumstances, the motion must be accompanied by either:

    (a) A showing that new counsel has been appointed or retained to represent the defendant; or

    (b) The defendant's completed petition for appointment of counsel or a showing that a petition has been filed.

(3) Trial counsel shall continue to participate until and unless the motion to withdraw is approved by the supreme court.

(4) Indigent defense cases appealed to the supreme court must be accompanied by petitions for either initial assignment or continued assignment of counsel (OAS Form #204-1081) together with a current financial affidavit or a photocopy of same.

Except in exceptional circumstances, the clerk's office will process the application for assignment of counsel within 30 days of the receipt of the notice of appeal and petition for assignment of counsel, together with affidavit.

(5) Maximum counsel fee for appeals to the supreme court in assigned counsel cases shall be $1,500.00.

 

APPENDIX C

Amend Supreme Court Rule 33(2) by deleting the last sentence, so that said Rule 33, as amended, shall state as follows:

RULE 33. NONMEMBER OF THE NEW HAMPSHIRE BAR

(1) A lawyer who is not a member of the bar of this State shall not be permitted to enter an appearance in any case except on motion that may be granted if a member of the bar of this State is associated with him and is present at oral argument.

(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 or any provision of the rules of professional conduct applicable to nonlawyer representatives, 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. Any person who is not a lawyer who is permitted to represent any other person before any court of this State must comply with the Rules of Professional Conduct as set forth in Professional Conduct Rule 8.5, and shall be subject to the jurisdiction of the committee on professional conduct.

 

APPENDIX D

 

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

RULE 37. ATTORNEY REGULATION SYSTEM

(1) Attorney Regulation in General:

(a) Components: The attorney regulation system consists of the following component parts:

(1) professional conduct committee;

(2) hearings committee;

(3) complaint screening committee;

(4) attorney regulation office.

(b) 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 attorney not admitted or specially admitted in this State who provides or offers to provide legal services in this State or any non-lawyer 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 attorney regulation system.

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 individual subject to the attorney regulation system shall not terminate jurisdiction of this court.

(c) 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 other 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.

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

(e) 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) Appeal: "Appeal" means an appeal to this court by a respondent or disciplinary counsel of a decision of the professional conduct committee. An appeal shall be based on the record before the professional conduct committee and shall be limited to issues of errors of law and unsustainable exercise of discretion.

(b) 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, any attorney not admitted or specially admitted in this State who provides or offers to provide legal services in this State or any non-lawyer representative permitted to represent other persons before the courts of this State pursuant to RSA 311:1.

(c) Complaint: "Complaint" means a grievance that, after initial review, has been determined by the attorney regulation office to be within the jurisdiction of the attorney regulation system and to meet the requirements for docketing as a complaint as set forth in supreme court rule 37A, and that is docketed by the attorney regulation office, or a complaint that is drafted and docketed by the attorney regulation office after an inquiry by that office. If after docketing, the complaint screening committee determines that a complaint is not within the jurisdiction of the attorney regulation system and/or does not meet the requirements for docketing, it shall be removed from the docket and it shall thereafter be treated for all purposes as a grievance that has not been docketed as a complaint.

(d) 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 professional conduct committee and the character and fitness committee.

(e) Disciplinary Counsel "Disciplinary Counsel" means the attorney or attorneys responsible for the prosecution of disciplinary proceedings before the court, the professional conduct committee and any hearings committee panel. Disciplinary counsel shall include a full-time attorney so designated, such deputy and assistants as may from time to time be deemed necessary, such part-time attorney or attorneys as may from time to time be deemed necessary, and such other attorneys of the attorney regulation office as may from time to time be designated to assist disciplinary counsel.

(f) Grievance: "Grievance" means a written submission filed with the attorney regulation office to call to its attention conduct that the grievant believes may constitute misconduct by an attorney. A grievance that is determined, after initial screening, not to be within the jurisdiction of the attorney regulation system 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 attorney regulation system 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 complaint screening committee later determines that the docketed complaint is not within the jurisdiction of the attorney regulation system and/or does not meet the requirements for docketing, it shall be removed 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 or the professional conduct committee, in appropriate New Hampshire publications including a newspaper of general statewide circulation, and one with general circulation in the area of respondent’s primary office, as well as the New Hampshire Bar News, of a summary of its findings and conclusions relating to the discipline of an attorney, as defined in section (2)(a) of this rule.

(h) Referral: "Referral" means a grievance received by the attorney regulation office 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 professional conduct committee after notice of charges and after a hearing before a hearings committee panel and the right to request oral argument to the professional conduct committee, in those cases in which misconduct in violation of the rules of professional conduct is found. A reprimand is administered by letter issued by the chair of the professional conduct committee, subject to an attorney’s right to appeal such discipline to the court.

(j) Suspension: "Suspension" means the suspension of an attorney’s right to practice law in this State, for a period of time specified by the court or by the professional conduct committee. Suspension by the professional conduct committee may not exceed six (6) months. The suspended attorney shall have the right to resume the practice of law, after the expiration of the suspension period, upon compliance with the terms and conditions set forth in the suspension order promulgated by the court or the professional conduct committee and pursuant to the procedure set forth in section 15 regarding reinstatement.

(k) Warning: "Warning" means non-disciplinary action taken by the complaint screening committee or the professional conduct committee when it is determined that an attorney acted in a manner which involved behavior requiring attention although not constituting clear violations of the rules of professional conduct warranting disciplinary action.

(3) Professional Conduct Committee:

(a) The court shall appoint a committee to be known as the professional conduct committee which shall consist of twelve members, one of whom shall be designated by the court as the chair. Two members of the professional conduct 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 an attorney, and the other must be a non-attorney. At least four of the members of the professional conduct committee shall be non-attorneys. There shall be at least one member of the professional conduct 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 (3)(d), 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 professional conduct committee has a conflict of interest or is otherwise disqualified from acting with respect to any proceeding before the professional conduct committee, the court may, upon request or upon its own motion, appoint another person to sit on such proceeding and such temporary replacement, rather than the disqualified member, shall be considered a professional conduct 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 requirements of this section.

(b) Initial appointments shall be for staggered terms: four members for three years; four members for two years; and four members, including the member designated pursuant to section (3)(d), for one year. Thereafter the regular term of each member, except the member designated pursuant to section (3)(d), 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 six members shall constitute a quorum. The chair of the committee, or any member performing the duties of the chair, shall only vote on matters relating to specific complaints in the event of a tie among the members present and voting. No professional conduct committee member shall serve concurrently as a member of the hearings committee or the complaint screening committee.

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

(1) To appoint a disciplinary counsel and a general counsel and such deputy and assistant disciplinary counsel and general counsel as may from time to time be required to properly perform the functions hereinafter prescribed. To appoint other professional staff, including auditors, and clerical staff whether full-time or part-time. To appoint independent bar counsel if needed.

(2) To consider hearing panel reports and written memoranda of disciplinary counsel and respondents. To conduct oral arguments in which disciplinary counsel and each respondent are given ten (10) minutes to address the findings and rulings contained in the hearing panel reports. After consideration of oral arguments, hearing panel reports, transcripts of hearings before hearing panels and memoranda, to determine whether there is clear and convincing evidence of violations of the rules of professional conduct. To remand complaints to hearing panels for further evidentiary proceedings. To dismiss grievances or complaints, with or without a warning, administer a reprimand, public censure or a suspension not to exceed six (6) months.

(3) To attach such conditions as may be appropriate to any discipline it imposes.

(4) To divert attorneys out of the attorney regulation system as appropriate and on such terms and conditions as is warranted.

(5) To institute proceedings in this court in all matters which the professional conduct committee has determined warrant the imposition of disbarment or of suspension for a period in excess of six (6) months.

(6) To consider and act upon requests by disciplinary counsel or respondents to review a decision by the complaint screening committee to refer a complaint to disciplinary counsel for the scheduling of a hearing.

(7) To consider and act upon requests from disciplinary counsel to dismiss a matter prior to a hearing if disciplinary counsel concludes that the development of evidence establishes that there is no valid basis for proceeding to a hearing.

(8) To consider and act upon requests for reconsideration of its own decisions.

(9) To consider and act upon requests for protective orders.

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

(11) To be responsible for overseeing all administrative matters of the attorney regulation system.

(12) To require a person who has been subject to discipline imposed by the professional conduct committee to produce evidence of satisfactory completion of the multistate professional responsibility examination, in appropriate cases.

(13) To educate the public on the general functions and procedures of the attorney regulation system.

Any attorney aggrieved by a finding of professional misconduct or by a sanction imposed by the professional conduct committee shall have the right to appeal such finding and sanction to this court. Disciplinary counsel shall have the right to appeal a sanction. Such rights must be exercised within thirty (30) days from the date on the notice of the finding and sanction. In the event that an attorney aggrieved by a finding of professional misconduct and sanction imposed by the professional conduct committee has filed a timely request for reconsideration pursuant to supreme court rule 37A(VI), the right to appeal the finding of professional misconduct and the sanction shall be exercised within thirty (30) days from the date of the letter notifying the attorney of the professional conduct committee’s decision on the request for reconsideration. Successive requests for reconsideration shall not stay the running of the appeal period. The manner of the appeal shall be based on the record before the professional conduct committee and shall include the right to submit briefs and present oral argument. The findings of the professional conduct committee may be affirmed, modified or reversed.

(d) Board of Governor’s Representative: 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 professional conduct committee for a one-year term commencing on August 1st following the election as such vice president and he or she shall have the following additional responsibilities:

(1) To render such assistance as the professional conduct committee directs in the preparation and review of the attorney regulation system budget.

(2) To assist in monitoring the financial affairs and budgetary process of the attorney regulation system 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 attorney regulation system, to serve as liaison between the professional conduct 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 professional conduct committee, consistent with the rule of confidentiality applicable to attorney regulation system proceedings.

If the vice president of the New Hampshire Bar Association has a conflict preventing his or her appointment to the professional conduct committee, the court shall appoint another member of the board of governors in his or her stead.

(4) Hearings Committee:

(a) The court shall appoint an appropriate number of attorneys and non-attorneys to a committee known as the hearings committee of the attorney regulation system. One member of the committee shall be designated by the court as the chair and one member shall be designated as vice chair to act in the absence or disability of the chair.

(b) Initial appointments shall be for staggered terms: one third of the members for three years; one third of the members for two years and one third of the members for one year. Thereafter, 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 more than three consecutive full terms but may be reappointed after a lapse of one year. No hearings committee member shall serve concurrently as a member of the professional conduct committee or the complaint screening committee.

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

(1) To be appointed as necessary by the hearings committee chair to individual hearing panels to rule on pre-hearing motions, conduct hearings on formal charges and make findings of fact, conclusions and recommendations in written reports to the professional conduct committee for findings of misconduct and sanctions or for dismissal of the complaint with findings of no misconduct with or without a warning. The individual hearing panels shall consist of a maximum of five (5) persons and a minimum of three (3) persons. There shall be no less than one public non-attorney member on each hearing panel.

(2) To conduct hearings in conformance with standards set forth in rule 37A.

(3) To make all findings by clear and convincing evidence.

(4) To submit all written reports to the professional conduct committee no more than sixty (60) days after the close of each hearing.

(d) Appointment to each individual hearing panel shall be made by the chair of the hearings committee. Each panel shall consist of a maximum of five (5) hearings committee members and a minimum of three (3) members. Each hearing panel shall have at least one (1) non-attorney member. The chair of the hearings committee shall designate one member of each panel as the chair and a separate member of the panel as the reporter responsible for preparation of the report to the professional conduct committee.

(5) Complaint Screening Committee:

(a) The court shall appoint a committee to be known as the complaint screening committee which shall consist of nine members, one of whom shall be designated by the court as chair and one of whom shall be designated by the court as vice chair to act in the absence or disability of the chair. Five of the members shall be attorneys and four of them shall be non-attorneys. The complaint screening committee shall act only with the consensus of a majority of its members present and voting provided, however, that three attorney members and two non-attorney members shall constitute a quorum. The chair of the committee, or any member performing the duties of the chair, shall only vote on matters relating to specific complaints in the event of a tie among the members present and voting. Initial appointments shall be for staggered terms: three members for three years; three members for two years; and three members for one year. Thereafter, 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 more than three consecutive full terms but may be reappointed after a lapse of one year. No member of the complaint screening committee shall serve concurrently as a member of the professional conduct committee or the hearings committee.

(b) The complaint screening committee shall have the power and duty:

(1) To consider and act on requests for reconsideration filed by grievants following a decision by general counsel not to docket a matter.

(2) To consider and act on reports by staff members of the attorney regulation office with respect to docketed complaints.

(3) To remove complaints from the docket if it determines that a complaint is not within the jurisdiction of the attorney regulation system and/or does not meet the requirements for docketing.

(4) To dismiss complaints with a finding of no professional misconduct, with or without a warning.

(5) To dismiss complaints for any other reason, with or without a warning.

(6) To divert attorneys out of the attorney regulation system when appropriate and subject to the attorney complying with the terms of diversion. All diversion would be public unless the complaint screening committee determined that a given matter should remain non-public based on one or more of the following issues: health, finances, family considerations or highly personal matters. If a respondent declines to accept diversion or violates the terms of a written diversion agreement, the complaint in such cases shall be acted upon as if diversion did not exist.

(7) To refer complaints to disciplinary counsel for the scheduling of a hearing.

(8) To consider and act upon requests for reconsideration of its own decisions, subject to the further right of disciplinary counsel or respondents to request that the professional conduct committee review a decision to refer a complaint to disciplinary counsel for the scheduling of a hearing.

(c) Meetings of the complaint screening committee shall be in the nature of deliberations and shall not be open to the public, respondents, respondents’ counsel, disciplinary counsel or the complainant. Records and reports of recommendations made shall in all respects be treated as work product and shall not be made public or be discoverable. However, the decision of the committee shall be public.

(6) Attorney Regulation Office:

(a) The professional conduct committee shall appoint:

(1) a disciplinary counsel and such deputy and assistants as may be deemed necessary whether full-time or part-time;

(2) a general counsel and such deputy and assistants as may be deemed necessary whether full-time or part-time; and

(3) other professional staff, including auditors, and clerical staff as may be necessary whether full-time or part-time.

(b) Disciplinary counsel shall perform prosecutorial functions and shall have the power and duty:

(1) To review complaints referred by the complaint screening committee for hearings.

(2) To contact witnesses, conduct discovery and prepare the complaints for hearings before a panel of the hearings committee.

(3) To try cases before panels of the hearings committee.

(4) To present memoranda to and appear before the professional conduct committee for oral argument.

(5) To represent the attorney regulation office and, in appropriate cases, the professional conduct committee in matters filed with the supreme court.

(c) General counsel shall perform a variety of legal services and functions and shall have the power and duty:

(1) To receive, evaluate, docket and investigate professional conduct complaints.

(2) To present complaints to the complaint screening committee with recommendations for diversion, dismissal for any reason (with or without a warning) or referral to disciplinary counsel for a hearing.

(3) To assist disciplinary counsel in performing the duties of disciplinary counsel as needed.

(4) To perform legal services as required for the committees of the attorney regulation system.

(5) To oversee and/or perform administrative functions for the attorney regulation system including but not limited to maintaining permanent records of the operation of the system and preparation of the annual budget.

(7) Immunity:

Each person shall be immune from civil liability for all statements made in good faith to any committee of the attorney regulation system, the attorney regulation office, the attorney general’s office, 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 (20)(j) and (21)(g). The committees’ members, staff, counsel and all others carrying out the tasks and duties of the attorney regulation system shall be immune from civil liability for any conduct arising out of the performance of their duties.

(8) Discovery and Subpoena Power:

At any stage of proceedings before a panel of the hearings committee or in preparation for a hearing before a panel of the hearings committee, attorneys from the attorney regulation office, counsel for respondent attorneys and respondent attorneys representing themselves may conduct discovery, including interrogatories and depositions, and may issue subpoenas and subpoenas duces tecum to summon witnesses with or without documents.

(9) Attorneys Convicted of Serious Crime:

(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 the professional conduct committee, 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 a hearing until all appeals from the conviction are concluded.

(e) Upon receipt of a certificate of conviction of an attorney for a crime not constituting a "serious crime", the court shall refer the matter to the attorney regulation office for such action as it deems appropriate. Referral to the attorney regulation office 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 an attorney is convicted of any crime shall, within ten (10) 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 attorney regulation office 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 attorney regulation office 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.

(10) Proceedings Where An Attorney Is Declared To Be Incompetent Or Is Alleged To Be Incapacitated:

(a) Whenever an attorney has been judicially declared incompetent or voluntarily or involuntarily committed to a mental health facility, 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 any committee of the attorney regulation system or the attorney regulation office shall petition the court to determine whether an 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 himself or herself, 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 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 an 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 moving party. 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 attorney regulation system or the court appointed medical experts.

(11) Resignation By Attorney Under Disciplinary Investigation:

(a) An attorney who is the subject of an investigation into allegations of misconduct may file a request to resign by delivering to the professional conduct 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 professional conduct 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 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.

(12) Reciprocal Discipline:

(a) Upon being disciplined in another jurisdiction, an attorney admitted to practice in this State shall immediately notify the attorney regulation office of the discipline. Upon notification from any source that an attorney admitted to practice in this State has been disciplined in another jurisdiction, the attorney regulation office shall obtain a certified copy of the disciplinary order and shall file it with the court.

(b) Upon receipt of a certified copy of an order demonstrating that an attorney admitted to practice in this State has been disciplined in another jurisdiction, the court may enter a temporary order imposing the identical or substantially similar discipline or, in its discretion, suspending the attorney pending the imposition of final discipline. The court shall forthwith issue a notice directed to the attorney and to the professional conduct committee containing:

(1) A copy of the order from the other jurisdiction; and

(2) An order directing that the attorney or professional conduct committee inform the court within thirty (30) days from service of the notice, of any claim by the lawyer or professional conduct committee predicated upon the grounds set forth in subparagraph (d), that the imposition of the identical or substantially similar discipline in this State would be unwarranted and the reasons for that claim.

(c) In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this State shall be deferred until the stay expires.

(d) Upon the expiration of thirty (30) days from service of the notice pursuant to subparagraph (b), the court shall issue an order of final discipline imposing the identical or substantially similar discipline unless the attorney or professional conduct committee demonstrates, or the court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:

(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) The imposition of the same or substantially similar discipline by the court would result in grave injustice; or

(3) The misconduct established warrants substantially different discipline in this State.

(13) Disbarred or Suspended Attorney:

(a) A disbarred or suspended attorney may be ordered by the court, or by the professional conduct committee when an attorney is suspended by it for a period not to exceed six (6) months, 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, or by the professional conduct committee when an attorney is suspended by it for a period not to exceed six (6) months, 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 between 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, or the professional conduct committee in cases where it issued a suspension order, may order that within thirty (30) 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 professional conduct committee. Such affidavit shall also set forth the residence or other address of the disbarred or suspended attorney where communications may thereafter be directed, as well as a list of all other jurisdictions in which the disbarred or suspended attorney is a member of the bar.

(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.

(14) 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 terms and conditions set forth in the order of suspension.

(b) General Rule: A motion for reinstatement by an attorney suspended for misconduct by the court, rather than for disability, or an application for readmission by a New Hampshire licensed attorney who has been disbarred by the court or has resigned while under disciplinary investigation shall be referred to the professional conduct committee by the supreme court. An application for readmission shall also be referred to the character and fitness committee pursuant to supreme court rule 42. A motion for reinstatement by an attorney suspended by the professional conduct committee shall be filed directly with that committee. Upon receipt of a motion for reinstatement or an application for readmission, the professional conduct committee shall refer the motion or application to a panel of the hearings committee. The attorney regulation office shall then cause a notice to be published in a newspaper with statewide circulation, and one with circulation in the area of the respondent’s former primary office, 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 attorney regulation office within twenty (20) days. All comments shall be made available to the respondent attorney. Where feasible, the attorney regulation office shall give notice to the original 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 professional conduct committee. The professional conduct committee shall review the report of the hearing panel and the record, allow the filing of written memoranda by disciplinary counsel and the respondent, review the hearing transcript and hold oral argument. Thereafter, the professional conduct committee shall file its own recommendations and findings with the court, together with the record. Following the submission of briefs and oral argument to the court, 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 witnesses and the submission of evidence, if any, in opposition to the motion for reinstatement or application for readmission shall be conducted by disciplinary counsel.

(d) The court in its discretion may direct that expenses incurred by the attorney regulation system 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.

(15) 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 readmission 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 readmission. In addition, the court may condition readmission 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 readmission to the professional conduct committee for referral to a panel of the hearings 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 readmission. 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 professional conduct committee. The professional conduct committee shall review the report of the hearings committee panel, the record and the hearing transcript 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 readmission 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 readmission. In addition, the court may condition readmission 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 readmission 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 readmission. In addition, the court may condition readmission upon completion of such continuing legal education as the court may order.

(16) Procedure:

(a) Disciplinary proceedings requesting a discipline of greater than six (6) months shall be initiated in this court by the professional conduct committee by petition 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. The record of proceedings before the professional conduct committee shall be filed with the petition. There shall not be a de novo evidentiary hearing.

(b) Service shall be made to the respondent attorney in such manner as the court may direct. In all cases, however, service upon the respondent attorney at the latest address provided to the New Hampshire Bar Association shall be deemed to be sufficient.

(c) Respondent attorney shall answer each allegation specifically and shall file an answer within thirty (30) days after service of the petition. Should the respondent attorney fail to answer the petition, the allegations set forth therein shall be deemed to be admitted and no further hearing shall be required.

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

(e) The court shall, after filing of briefs and oral arguments, make such order as justice may require.

(f) The court may suspend attorneys or disbar New Hampshire licensed attorneys or publicly censure 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. The court may remand the matter to the professional conduct committee for such other discipline as the court may deem appropriate.

(g) Either a respondent attorney or disciplinary counsel may appeal findings of the professional conduct committee and the imposition of a reprimand, public censure or a suspension of six (6) months or less by filing a notice of appeal with the supreme court. The court shall, after the filing of briefs and oral argument, affirm, reverse or modify the findings of the professional conduct committee.

(h) In the event of suspension or disbarment, a copy of the court’s order or the professional conduct committee’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 professional conduct committee shall continue to be responsible to insure respondent attorney’s compliance with the 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.

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

(j) Appeals to the court shall be in the form proscribed by the court. Such appeals shall be based on the record and there shall not be a de novo evidentiary hearing.

(17) 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.

(18) 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.

(19) Expenses Relating to Discipline Enforcement:

All expenses incurred by the attorney regulation system in the investigation and enforcement of discipline may, in whole or in part, be assessed to a disciplined attorney to the extent appropriate.

(20) Confidentiality:

Applicability Note: Section 20 shall apply to records and proceedings in all matters initiated on or after April 1, 2000.

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

(1) A grievance against a person who is not subject to the rules of professional conduct shall be returned to the grievant. No file on the grievance will be maintained; however, the attorney regulation office 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.

(2) All records and materials relating to a grievance determined by the attorney regulation office or the complaint screening 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 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 attorney regulation system shall be available for public inspection (other than work product, internal memoranda, and deliberations) in accordance with supreme court rule 37A upon the earliest of the following:

(1) When the complaint screening committee or the professional conduct committee finally disposes of a complaint;

(2) When disciplinary counsel issues a notice of charges;

(3) When the professional conduct committee files a petition with the supreme court, except as provided by section (11) 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 (14), the records, with the exception of the bar application, and the proceedings before the hearing panel and the professional conduct 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 attorney regulation system, shall be available for public inspection.

(e) Proceedings Alleging Disability: All proceedings involving allegations of disability on the part of a New Hampshire licensed 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 (10), in which case said order shall be public.

(f) Protective Orders: Proceedings involving allegations of misconduct by or the disability of an attorney frequently require the disclosure of otherwise confidential or privileged information concerning the complainant, a witness, or the attorney. In order to protect the interests of the complainant, witness, or attorney, the professional conduct committee, may, upon request, or on its own initiative, issue a protective order prohibiting the disclosure of confidential, malicious, personal, privileged information or material submitted in bad faith. Any person aggrieved by a decision on a protective order may, within thirty (30) days of the decision, 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 court has acted or the period for requesting court review has expired. A motion for review of the professional conduct committee’s decision about issuance of a protective order shall be filed as a confidential matter in the court.

(g) Disclosure to Authorized Agency: The attorney regulation office 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 attorney regulation office decides to answer a request for relevant information, and if the attorney who is the subject of the request has not signed a waiver permitting the requesting agency to obtain confidential information, the attorney regulation office shall send to the attorney at his or her last known address, by certified mail, a notice that information had been requested and by whom, together with a copy of the information that the attorney regulation office proposes to release to the requesting agency. The attorney regulation office shall inform the subject attorney that the information shall be released at the end of ten (10) days from the date of mailing the notice unless the attorney obtains a supreme court order restraining such disclosure. Notice to the 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 attorney regulation office 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 professional conduct committee (upon notice from said committee), 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 (7) 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 had been filed with the attorney regulation system 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 (20) may result in action of the professional conduct 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 (20), terminating the proceedings with or without public comment, or such other action as the professional conduct committee deems appropriate in the circumstances.

(21) Confidentiality:

Applicability Note: Section 21 shall not apply to records and proceedings in matter 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 disciplinary counsel issues a notice of charges, in which case the notice, the file (other than work product and internal memoranda), the proceedings before the committees (other than deliberations), and the decision shall be public; or

(2) When the professional conduct committee files a petition with the supreme court in which case, except as provided in section (11) 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 (14), in which case the proceedings before the hearings committee panel and the professional conduct 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 attorney regulation system, 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 attorney regulation system 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 (10), in which case said order shall be public.

(c) Protective Orders: Proceedings involving allegations of misconduct by or the disability of an attorney frequently require the disclosure of otherwise confidential or privileged information concerning the complainant, a witness, or the attorney. In order to protect the interests of the complainant, witness, or attorney, the professional conduct committee, may, upon request, or on its own initiative, issue a protective order prohibiting the disclosure of confidential, malicious, personal, privileged information or material submitted in bad faith. Any person aggrieved by a decision on a protective order may, within thirty (30) days of the decision, 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 court has acted or the period for requesting court review has expired. A motion for review of the professional conduct committee’s decision about issuance of a protective order shall be filed as a confidential matter in the court.

(d) Disclosure to Authorized Agency: The attorney regulation office 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 of government employment, and to law enforcement agencies authorized to investigate and prosecute violations of the criminal law. If the attorney regulation office decides to answer a request for relevant information, and if the attorney who is the subject of the request has not signed a waiver permitting the requesting agency to obtain confidential information, the attorney regulation office shall send to the 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 attorney regulation office proposes to release to the requesting agency. The attorney regulation office shall inform the subject attorney that the information shall be released at the end of ten (10) days from the date of mailing the notice unless the attorney obtains a supreme court order restraining such disclosure. Notice to the 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 attorney regulation office 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 professional conduct committee (upon notice from said committee), 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 (7) 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 attorney regulation system pending action on the complaint or pending the complaint becoming public in accordance with the provisions of this section.

If a complaint has been dismissed or otherwise disposed of by the attorney regulation system 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 attorney regulation system. The immunity from civil liability provided in section (7) does not apply to such disclosures.

(h) Violation of Duty of Confidentiality: Any violation of the duty of confidentiality imposed by section (21) may result in action of the professional conduct 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 (21)(a), terminating the proceedings with or without public comment, or such other action as the professional conduct committee deems appropriate in the circumstances.

(22) Copy of Rule:

A copy of supreme court rules 37 and 37A shall be provided to all grievants, complainants, and respondent attorneys.

 

APPENDIX E

[NOTE: The Advisory Rules Committee recommends that if the court does not adopt the amendments to Rule 37 set forth in Appendix D, then, in the alternative, Rule 37(3) should be adopted as set forth below.]

Adopt Supreme Court Rule 37(3) on a permanent basis; Rule 37(3) was adopted on a temporary basis by order dated July 18, 2002:

(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) From time to time, the court may appoint special members of the committee to investigate complaints assigned to them by the committee chair. The term of a special member shall be for six months. The assignment of an investigation to a special member shall be within the discretion of the chair, and the authority of a special member shall be limited to the investigation of complaints as assigned by the chair. A special member shall not be considered a committee member for quorum and voting purposes in connection with the investigation or proceedings related to such complaints, and shall not serve on a hearing panel.

(d) 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.

 

APPENDIX F

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

 

RULE 37A. RULES AND PROCEDURES OF ATTORNEY REGULATION SYSTEM

(I) General Provisions

(a) Jurisdiction: The jurisdiction of the attorney regulation system shall be as set forth in supreme court rule 37(1)(b).

(b) Construction: This rule is promulgated for the purpose of assisting the grievant, complainant, respondent, counsel and the committees of the attorney regulation system to develop the facts relating to, and to reach a just and proper determination of matters brought to the attention of the attorney regulation system.

(c) Definitions: Subject to additional definitions contained in subsequent provisions of this rule which are applicable to specific questions, 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 meaning given to them in this section:

Answer: The response filed by, or on behalf of, the respondent to a complaint or a 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, any attorney not admitted or specially admitted in this State who provides or offers to provide legal services in this State or any non-lawyer representative permitted to represent other persons before the courts of this State pursuant to RSA 311:1.

Complaint: A grievance that, after initial review, has been determined by the attorney regulation office to be within the jurisdiction of the attorney regulation system and to meet the requirements for docketing as a complaint as set forth in section (II)(a)(3)(B) of this rule, and that is docketed by the attorney regulation office, or a complaint that is drafted and docketed by the attorney regulation office after an inquiry by that office. If after docketing, the complaint screening committee determines that a complaint is not within the jurisdiction of the attorney regulation system and/or does not meet the requirements for docketing, it shall be removed 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: 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 the 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 professional conduct committee and the character and fitness committee.

Disciplinary Counsel: The attorney responsible for the prosecution of disciplinary proceedings before any hearings committee panel, the professional conduct committee and the supreme court. Disciplinary counsel shall include a full-time attorney so designated, such deputy and assistants as may from time to time be deemed necessary, such part-time attorney or attorneys as may from time to time be deemed necessary, and such other attorneys of the attorney regulation office as may from time to time be designated to assist disciplinary counsel.

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 rule 37(3)(c), in those cases in which misconduct in violation of a disciplinary rule is found warranting disciplinary action.

Diversion: Either a condition attached to discipline imposed by the professional conduct committee; or a referral, voluntary in nature, when conduct does not violate the rules of professional conduct; or non-disciplinary treatment by the complaint screening committee or the professional conduct committee as an alternative to discipline for minor misconduct.

Formal Proceedings: Proceedings subject to section (III) of this rule.

General Counsel: The attorney responsible for (a) receiving, evaluating, docketing and investigating grievances filed with the attorney regulation office; (b) presenting complaints to the complaint screening committee with recommendations for diversion, dismissal for any reason with or without a warning or referral to disciplinary counsel for a hearing; (c) assisting disciplinary counsel in the performance of the duties of disciplinary counsel as needed; (d) performing general legal services as required for the committees of the attorney regulation system; and (e) overseeing and performing administrative functions for the attorney regulation system. General counsel shall include a full-time attorney so designated, such deputy and assistants as may from time to time be deemed necessary, and such part-time attorney or attorneys as may from time to time be deemed necessary.

Grievance: "Grievance" means a written submission filed with the attorney regulation office to call to its attention conduct that the grievant believes may constitute misconduct by an attorney. A grievance that is determined, after initial screening, not to be within the jurisdiction of the attorney regulation system 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 attorney regulation system 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 complaint screening committee later determines that the docketed complaint is not within the jurisdiction of the attorney regulation system and/or does not meet the requirements for docketing, it shall be removed 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 comprised of members of the hearings committee.

Inquiry: A preliminary investigation of a matter begun by the attorney regulation office on its own initiative to determine whether a complaint should be docketed.

Investigation: Fact gathering by the attorney regulation office with respect to alleged misconduct.

Minor Misconduct: Conduct, which if proved, violates the rules of professional conduct but would not warrant discipline greater than a reprimand. Minor misconduct (1) does not involve the misappropriation of client funds or property; (2) does not, nor is likely to, result in actual loss to a client or other person of money, legal rights or valuable property rights; (3) is not committed within five (5) years of a diversion, reprimand, censure, suspension or disbarment of the attorney for prior misconduct of the same nature; (4) does not involve fraud, dishonesty, deceit or misrepresentation; (5) does not constitute the commission of a serious crime as defined in rule 37(9)(b); and (6) is not part of a pattern of similar misconduct.

Notice of Charges: A formal pleading served under section (III)(b)(2) of this rule by disciplinary counsel.

Public Censure: The publication by the court or the professional conduct committee, in appropriate New Hampshire publications, including a newspaper of general statewide circulation, and one with general circulation in the area of respondent’s primary office, as well as the New Hampshire Bar News, of a summary of its findings and conclusions relating to the discipline of an attorney, as defined in this section.

Referral: A grievance received by the attorney regulation office from any New Hampshire state court 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 professional conduct committee after notice of charges and after a hearing before a hearings committee panel and the right to request oral argument to the professional conduct committee in those cases in which misconduct in violation of the rules of professional conduct is found. A reprimand is administered by letter issued by the chair of the professional conduct committee, subject to an attorney’s right to appeal such discipline to the court.

Suspension: The suspension of an attorney’s right to practice law in this State, for a period of time specified by the court or by the professional conduct committee. Suspension by the professional conduct committee may not exceed six (6) months. The suspended attorney shall have the right to resume the practice of law, after the expiration of the suspension period, upon compliance with the terms and conditions set forth in the suspension order promulgated by the court or the professional conduct committee and pursuant to the procedure set forth in section (II)(d)(2) regarding reinstatement.

Warning: Non-disciplinary action taken by the complaint screening committee or the professional conduct committee when it is believed that an attorney acted in a manner which involved behavior requiring attention although not constituting clear violations of the rules of professional conduct warranting disciplinary action.

(d) Grounds for Discipline: The various matters specified in supreme court rule 37(1)(c), the disciplinary rules or decisional law shall be grounds for discipline.

(e) Types of Discipline and Other Possible Action

(1) Misconduct under supreme court rule 37(1)(c), the disciplinary rules or decisional law shall be grounds for any of the following:

(A) Disbarment - by the court.

(B) Suspension for more than six months - by the court.

(C) Suspension for six months or less - by the professional conduct committee or the court.

(D) Public Censure - by the professional conduct committee or the court.

(E) Reprimand - by the professional conduct committee.

(2) The complaint screening committee or the professional conduct committee may issue a warning to an attorney when it is deemed to be appropriate. The issuance of a warning does not constitute discipline.

(3) The complaint screening committee or the professional conduct committee may divert a matter involving minor discipline, in lieu of discipline, subject to compliance with the terms of a written agreement. The professional conduct committee may require an attorney to participate in a diversion program as a condition of discipline. Any component of the attorney regulation system may refer to a diversion program, on a voluntary basis, an attorney who engages in conduct that does not violate the rules of professional conduct but which should be addressed as a corrective matter.

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

The fact that an attorney has been issued a warning or has been the subject of disciplinary action by the professional conduct committee, may (together with the basis thereof) be considered in determining the extent of discipline to be imposed, in the event additional charges of misconduct are subsequently brought and proven by clear and convincing evidence against the attorney.

(g) Diversion

Diversion may be either mandatory, a voluntary referral or a discretionary referral for minor misconduct.

(1) Mandatory diversion involving required participation in a diversion program may occur in some cases as part of discipline imposed by the professional conduct committee.

(2) Voluntary referral to a diversion program may occur when the conduct of an attorney may come to the attention of any of the committees or personnel involved in the attorney regulation system but the conduct does not violate the rules of professional conduct. The referral would be voluntary and may occur in situations where there is reason to believe that the attorney’s conduct may lead to violations of the rules of professional conduct if corrective action is not taken by the attorney.

(3) Discretionary diversion as an alternative to a formal sanction for minor misconduct may occur if:

(A) The misconduct appears to the complaint screening committee or the professional conduct committee to be the result of poor office management, chemical dependency, behavioral or health-related conditions, negligence or lack of training or education; and

(B) There appears to the complaint screening committee or the professional conduct committee to be a reasonable likelihood that the successful completion of a remedial program will prevent the recurrence of conduct by the attorney similar to that which gave rise to the diversion.

(C) If the complaint screening committee or the professional conduct committee offers a written diversion agreement to an attorney, the attorney shall have thirty (30) days to accept and execute the diversion agreement.

(D) An attorney may decline to accept and execute a diversion agreement in which case the pending complaint shall be processed by the attorney regulation system in the same manner as any other matter.

(4) Diversion agreements shall be in writing and shall require the attorney to participate, at his or her own expense, in a remedial program acceptable to the complaint screening committee or the professional conduct committee which will address the apparent cause of the misconduct. Remedial programs may include but are not limited to: law office assistance; chemical dependency treatment; counseling; voluntary limitation of areas of practice for the period of the diversion agreement; or a prescribed course of legal education including attendance at legal education seminars. A diversion agreement shall require the attorney to admit the facts of the complaint being diverted and to agree that, in the event the attorney fails to comply with the terms of the diversion agreement, the facts shall be deemed true in any subsequent disciplinary proceedings.

(5) The fact that a diversion has occurred shall be public in all matters. Written diversion agreements shall also be public unless the complaint screening committee or the professional conduct committee votes to make it non-public based on one or more of the following: health, personal finances, family considerations or other highly personal matters.

(6) If an attorney fails to comply with the terms of a written diversion agreement, the agreement shall be terminated and the complaint shall be processed by the attorney regulation system in the same manner as any other matter.

(7) If an attorney fulfills the terms of a written diversion agreement, the complaint shall be dismissed and written notice shall be sent to both the attorney and the complainant.

(8) The attorney regulation office shall a) prepare diversion agreements setting forth the terms determined by the complaint screening committee or the professional conduct committee; b) monitor the progress of the attorney participating in the diversion program to insure compliance; and c) notify the complaint screening committee or the professional conduct committee whenever there is a voluntary or involuntary termination of the written diversion agreement or upon successful completion of the diversion program.

(h) Public Announcements

The attorney regulation office may, from time to time, publicly announce the nature, frequency and substance of diversion (unless made non-public), warnings and sanctions imposed by the attorney regulation system. 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 attorney without the prior approval of the supreme court and prior notice to the respondent (giving said attorney an opportunity to be heard thereon) or without a written waiver from the attorney.

(i) Period of Limitation

(1) Except as provided in subsection (3), no formal disciplinary proceedings shall be commenced unless a grievance is filed with the attorney regulation office in accordance with section (II)(a) or a complaint is generated and docketed by the attorney regulation office under section (II)(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 (2) years of the time the grievant discovers, or in the exercise of reasonable diligence should have discovered, the acts and 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 attorney regulation office 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(9)(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 a 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 attorney is outside this jurisdiction with a purpose to avoid commencement of proceedings, or wherein the attorney refuses to cooperate with an investigation into alleged misconduct, or

(B) during any period in which the attorney 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 attorney regulation office.

(5) If, while proceedings of any kind are pending against the attorney in any court or tribunal and arising out of the same acts or transactions that provide the basis for the allegations of misconduct, the limitations 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.

(II) Investigations and Informal Proceedings

(a) Preliminary Provisions

(1) Responsibility of Attorney Regulation Office

The attorney regulation office, through general counsel, shall investigate all matters involving alleged misconduct of attorneys which fall within the jurisdiction of the attorney regulation system and which satisfy the requirements of this rule.

(2) Initiation of Investigation Process

(A) Grievance. Any person may file a grievance with the attorney regulation office to call to its attention the conduct of an attorney that he or she believes constitutes misconduct which should be investigated by the attorney regulation office. If necessary, the general counsel or his or her deputy or assistant 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 any 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 attorney regulation office which he or she believes may constitute misconduct by an attorney that should be investigated by the attorney regulation office. 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 attorney regulation office which he or she believes may constitute misconduct by an attorney that should be investigated by the attorney regulation office. Except as otherwise provided, a referral from a court or attorney shall be treated as a grievance. Upon receipt of a referral, the attorney regulation office shall determine that 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 attorney regulation office and meets the requirements for docketing as a complaint as set forth in section (II)(a)(3)(B), the attorney regulation office shall process the grievance as a attorney regulation office generated complaint.

(B) Attorney Regulation Office-Initiated Inquiry. The attorney regulation office may, upon any reasonable factual basis, undertake and complete an inquiry, on its own initiative, of any other matter within its jurisdiction coming to its attention by any lawful means. Unless the attorney regulation office later dockets a complaint against an attorney in accordance with section (II)(a)(5)(B), all records of such an inquiry shall be confidential.

(C) Filing. A grievance shall be deemed filed when received by the attorney regulation office.

(3) Procedure after Receipt of Grievance

(A) Initial Screening of Grievance. General counsel shall review each grievance upon receipt to determine whether the grievance is within the jurisdiction of the attorney regulation system 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 attorney regulation system and it meets the following requirements:

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

(ii) Standing. With the exception of an attorney regulation office-initiated inquiry or a referral by a judge 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 statement establishing these facts.

(iii) Oath or Affirmation. It is typed or in legible handwriting and, with the exception of an attorney regulation office-initiated inquiry or a referral by a judge or attorney, signed by the grievant under oath or affirmation, administered by a notary public or a justice of the peace. 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."

(iv) Limitation Period. It was filed with the attorney regulation office within the period of limitation set forth in section (I)(i).

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

(4) Disposition of Grievance after Initial Screening.

(A) Lack of Jurisdiction. If the attorney regulation office determines that the person who is the subject of the grievance is not a person subject to the rules of professional conduct, general counsel shall return the grievance to the grievant with a cover letter explaining the reason for the return and advising the grievant that the attorney regulation office will take no action on the grievance. The person who is the subject of the grievance shall not be notified of it. No file on the grievance will be maintained, however, the attorney regulation office shall retain a copy of the cover letter to the grievant, which shall be available for public inspection in accordance with section (IV)(a)(2)(A). The attorney regulation office 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 attorney regulation office determines that a grievance fails to meet the requirements for docketing as a complaint, it shall so advise the grievant in writing. The attorney who is the subject of the grievance shall be provided with a copy of the grievance and the response by general counsel, and shall be given an opportunity to submit a reply to the grievance within thirty (30) days from the date of the notification or such further time as may be permitted by general counsel. The attorney’s reply shall be filed in the record, which shall be available for public inspection in accordance with section (IV)(a)(2)(B).

(C) Reconsideration of Attorney Regulation Office’s Decision. A grievant may file a written request for reconsideration of the attorney regulation office’s decision that the grievance is not within the jurisdiction of the attorney regulation system or does not meet the requirements for docketing as a complaint, but said request must be filed within ten (10) days of the date of the written notification. A request for reconsideration of the attorney regulation office’s decision shall automatically stay the period in which the attorney may file a reply as provided for by section (II)(a)(4)(B). Any such request for reconsideration that is timely filed shall be presented by general counsel to the complaint screening committee which shall affirm the decision of the attorney regulation office or direct that the grievance be docketed as a complaint and processed in accordance with the following paragraph. If the decision of the attorney regulation office is affirmed, the attorney who is the subject of the grievance shall be given the opportunity to submit a reply to the grievance within thirty (30) days from the date of the complaint screening committee’s action on the request for reconsideration or such further time as may be ordered by that committee.

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

(A) Docketing of Grievance as Complaint. If general counsel determines that a grievance is within the jurisdiction of the attorney regulation office and meets the requirements for docketing as a complaint as set forth in section (II)(a)(3)(B), he or she shall docket it as a complaint.

(B) Drafting and Docketing of Attorney Regulation Office-generated Complaint. If, after undertaking and completing an inquiry on its own initiative, the attorney regulation office 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, general counsel 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 general counsel. Unless a shorter time is fixed by the general counsel and specified in such notice, the respondent shall have thirty (30) days from the date of such notice within which to file his or her answer with the attorney regulation office. The respondent shall serve a copy of his or her answer in accordance with section (VII) of this rule. If an answer is not received within the specified period, or any granted extension, absent good cause demonstrated by the respondent, general counsel may recommend to the complaint screening committee that the issue of failing to cooperate be referred to disciplinary counsel who shall prepare a notice of charges requiring the respondent to appear before a panel for the hearings committee 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 general counsel’s request for an answer to the complaint.

(6) Investigation.

Either prior to or following receipt of the respondent’s answer, general counsel and his or her deputies and assistants shall conduct such investigation as may be appropriate.

Upon completion of the investigation, general counsel shall present complaints to the complaint screening committee with recommendations for diversion as provided in section (I)(g), dismissal for any reason (with or without a warning) or referral to disciplinary counsel for a hearing.

Meetings of the complaint screening committee shall be in the nature of deliberations and shall not be open to the public, respondents, respondents’ counsel, disciplinary counsel or the complainant. Records and reports of recommendations made shall in all respects be treated as work product and shall not be made public or be discoverable. However, the decision of the complaint screening committee shall be public.

(7) Action By the Complaint Screening Committee.

(A) Diversion. In any matter in which the complaint screening committee determines that diversion is appropriate, it shall be structured consistent with the provisions of section (I)(g).

(B) Dismissal For Any Reason. In any matter in which the complaint screening committee determines that a complaint should be dismissed, either on grounds of no professional misconduct or any other reason, the committee shall dismiss the complaint and it shall notify the complainant and the respondent in writing and the attorney regulation office shall close its file on the matter.

(C) Dismissal With A Warning. If the complaint screening committee determines that the complaint should be dismissed and that a warning should issue, it shall notify complainant and the respondent of such disposition in writing and shall notify the respondent of his or her rights, if any, pursuant to section (II)(b)(1)(B) of this rule.

(D) Formal Proceedings. If the complaint screening committee determines that formal proceedings be held, it shall refer the matter to disciplinary counsel for the issuance of notice of charges and the scheduling of a hearing on the merits before a panel of the hearings committee.

(b) Final Disposition With A Warning.

(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:

(i) the respondent’s right to submit a written response, which shall be maintained with the file relating to the complaint.

(ii) the fact that the issuance of the warning does not constitute discipline; and

(iii) the fact that the record of such warning may be considered (a) by the complaint screening committee to determine whether diversion may be appropriate in the event charges of minor misconduct are subsequently brought against the respondent; or (b) by the professional conduct committee in the event findings of misconduct are subsequently found against the respondent.

(c) Abatement of Investigation.

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

Neither unwillingness nor neglect of the grievant or complainant 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 at any stage 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 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 any component part of the attorney regulation system of an affidavit from a New Hampshire licensed attorney who intends to resign pursuant to the rules of the court, it shall refer the matter to the professional conduct committee, to review the affidavit and such other matters as it deems appropriate to determine either (i) to recommend to the court that the resignation be accepted and to recommend any terms and conditions of acceptance it deems appropriate, or (ii) to recommend to the court that the resignation not be accepted with the reasons therefor. The professional conduct committee shall submit the affidavit and its recommendation to the court, and the proceedings, if any, before the court shall be conducted by disciplinary counsel.

(B) Notification of Grievant. In the event the court accepts the resignation of a respondent and removes the respondent on consent, the professional conduct 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, whether by the court or the professional conduct committee, 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 by the court 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 professional conduct committee by the supreme court. A motion for reinstatement by an attorney suspended by the professional conduct committee shall be filed directly with the professional conduct committee.

Upon receipt of a motion for reinstatement or an application for readmission, the professional conduct committee shall refer the motion or application to the hearings committee for appointment of a hearing panel. The attorney regulation office shall then cause a notice to be published in a newspaper with statewide circulation, and one with circulation in the area of respondent’s former primary office, as well as the New Hampshire Bar News that the respondent has moved for reinstatement or applied for readmission. The notice shall invite anyone to comment in writing to the attorney regulation office within twenty (20) days. All comments shall be made available to the respondent and shall be part of the public file. Where feasible, the attorney regulation office shall give notice to the original complainant. The hearing panel shall promptly scheduled 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 for justice nor subversive to the public interest. The attorney regulation system shall be represented at the hearing by disciplinary counsel. At the conclusion of the hearing, the hearing panel shall promptly file a report containing its findings of fact, conclusions and recommendations in written reports, along with the record, to the professional conduct committee. Following receipt of written memoranda by disciplinary counsel and respondent, the hearing transcript and oral argument, the professional conduct committee shall review the record in its entirety and shall file its own recommendations and findings with the court, together with the record. After the submission of briefs and oral arguments to the court, if any, the court shall enter a formal order.

(C) Readmission after Resignation. Upon receipt of a referral from the supreme court, pursuant to rule 37(15), of a motion for readmission after resignation, the professional conduct committee shall further refer the motion to the hearings committee for the appointment of a hearing panel. 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 readmission. 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 professional conduct committee. Following receipt of written memoranda of disciplinary counsel and the attorney, review of the hearing transcript, and oral argument, the professional conduct committee shall review the record in its entity, 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 to the supreme court, if any, the court shall enter a final order.

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

Upon receipt by any component part of the attorney regulation system 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, it shall determine whether the crime is a "serious crime" as defined in supreme court rule 37(7)(b). Upon a determination that the crime is a serious crime, it shall file the certificate of conviction with the Court.

(III) Formal Proceedings

Preface

As good cause appears and as justice may require, the professional conduct committee may waive the application of any rule under this section.

(a) Preliminary Provisions.

(1) Representation of Respondent.

When a respondent is represented by counsel in a formal proceeding, counsel shall file with the hearings committee and disciplinary counsel 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 proceedings. If the appearance is filed after a hearing panel has submitted its reports and recommendations to the professional conduct committee, the notice of the appearance shall be filed with the professional conduct committee rather than the hearings committee. 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. In any matter pending before the hearings committee, only the chair of the panel assigned to hear the matter may grant an extension of time, and only upon good cause shown. In any matter pending before the professional conduct committee, only the chair of the committee may grant an extension of time, and only upon good cause shown. Application for such an extension shall be made, in advance, and in writing where practicable, to the appropriate 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 disciplinary counsel 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 for 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) General.

Upon receipt of a file referred by the complaint screening committee, disciplinary counsel may engage in such additional preparation to allow counsel to formalize allegations into a notice of charges. The notice of charges shall be served on the respondent by certified mail, return receipt requested, unless some other type of service is authorized upon application to the chair of the professional conduct committee. Throughout the proceedings, disciplinary counsel shall exercise independent professional judgment. Nevertheless, disciplinary counsel shall keep the complainant apprised of developments in the matter and consider input from the complainant.

(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 shall also 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 answer the notice of charges by serving and filing an answer with disciplinary counsel within thirty (30) days after service of the notice of charges. Should the respondent fail to file an answer, the allegations set forth in the notice of charges shall be deemed to be admitted.

(B) Contents of 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) Assignment for Hearing.

Upon receiving an answer from the respondent, or the expiration for the thirty (30) day period for a respondent to file an answer, it shall be the duty of disciplinary counsel to request that the chair of the hearings committee appoint a hearing panel.

Once a hearing panel has been appointed, disciplinary counsel shall forward the panel a copy of the file, other than work product, deliberations and internal correspondence and memoranda of the component parts of the attorney regulation system. To the extent not already provided, disciplinary counsel shall also provide the respondent with the same documents provided to the hearing panel.

(5) Discovery.

(A) Discovery shall be available to the disciplinary counsel. Discovery shall also be available to the respondent, provided that an answer has been filed. All such requests shall be in writing.

(B) On written request the following information, if relevant or reasonably calculated to lead to the discovery of admissible evidence in the matter, and if within the possession, custody or control of the disciplinary counsel, the respondent or respondent’s counsel, is subject to discovery and shall be made available for inspection and copying as set forth in this rule:

(i) A writing or any other tangible object, including those obtained from or belonging to the respondent;

(ii) Signed written statements, or taped statements, if any, by any witness, including the respondent;

(iii) Results or reports of mental or physical examinations and of scientific tests or experiments made in connection with the matter;

(iv) Names, addresses and telephone numbers of all persons known to have relevant information based on personal knowledge about the matter, including a designation by the disciplinary counsel and respondent as to which of those persons will be called as witnesses;

(v) Police reports and any investigation reports generated by any agency other than the attorney regulation office;

(vi) Names and address of each person expected to be called as an expert witness, the expert’s qualifications, the subject matter on which the expert will testify, a copy of all written reports submitted by the expert or, if none, a statement of facts and opinions to which the expert will testify and a summary of the grounds for each opinion; and

(vii) If disciplinary counsel or the respondent are unable to agree on discovery issues, a request must be made for a pre-hearing conference.

(C) This rule does not require discovery of a party’s work product consisting of internal reports, memoranda or documents made by that party or that party’s attorney or agents in connection with a disciplinary proceeding. Nor does it require discovery of statements, signed or unsigned, made by respondent to respondent’s attorney or that attorney’s agents. This rule does not authorize discovery of any internal materials or documents prepared by the attorney regulation office.

(D) Depositions shall be permitted in any matter to preserve the testimony of a witness likely to be unavailable for hearing due to death, incapacity or if otherwise agreed to by the parties. If disciplinary counsel or the respondent deem it necessary to take any other depositions, a request must be made for a pre-hearing conference.

(E) Discovery shall be made available within thirty (30) days after receipt of a written request therefor. A party’s obligation to provide discovery is a continuing one. If, subsequent to compliance with a request for discovery, a party discovers additional names or statements of witnesses or other information reasonably encompassed by the initial request for discovery, the original discovery response shall be promptly supplemented accordingly. In any case in which a pre-hearing conference has been held, the case management order shall set forth the time period within which all discovery shall be completed.

(F) Any discoverable information which is not timely furnished either by original or supplemental response to a discovery request may, on application of the aggrieved party, be excluded from evidence at hearing. The failure of the disciplinary counsel or respondent to disclose the name and provide the report or summary of any expert who will be called to testify in accordance with prior agreement of the parties or as provided in the case management order at least twenty (20) days prior to the hearing date shall result in the exclusion of the witness, except on good cause shown.

(6) Pre-Hearing Conference.

(A) A pre-hearing conference shall be held at the request of any party or the trier of fact. The pre-hearing conference shall be held by the hearing panel chair. Unless for good cause shown, the request for a pre-hearing conference must be made within thirty (30) days of the date of the hearing panel appointment. At least fourteen (14) days written notice of the date of the conference shall be given. Attendance is mandatory by all parties at the conference. A pre-hearing conference may be held by telephone call where appropriate. No transcript shall be made of the pre-hearing conference.

(B) At the pre-hearing conference, the hearing panel chair shall address the following matters:

(i) The formulation and simplification of issues;

(ii) Admissions and stipulations of the parties with respect to allegations, defenses and any aggravation or mitigation;

(iii) The factual and legal contentions of the parties;

(iv) The identification and limitation of witnesses, including character and expert witnesses;

(v) Rulings on discovery disputes, deadlines for the completion of discovery, including the timely exchange of expert reports, and a ruling on any requests to take depositions;

(vi) The hearing date and its estimated length;

(vii) Deadline for the pre-marking of all exhibits to which the parties consent; and

(viii) Any other preliminary issues or matters which may aid in the disposition of the case.

(C) Within fourteen (14) days following the pre-hearing conference, the hearing panel chair shall issue a case management order, designated as such in the caption, memorializing any agreements by the parties and any determinations made respecting any matters considered at the conference. The case management order, which constitutes part of the record, shall be sent to the disciplinary counsel and the respondent.

(D) At the pre-hearing conference the hearing panel chair shall schedule a date for the hearing of the case within sixty (60) days after the date of the conference, except for good cause shown.

(7) Matters in Which a Pre-hearing Conference Has Not Been Held.

(A) In any matter in which a pre-hearing conference is not requested, both disciplinary counsel and respondent shall be responsible for compiling and pre-marking all documentary evidence, to which the parties consent, to be considered by the hearing panel;

(B) In such matters, both disciplinary counsel and respondent shall also be responsible for preparing lists of names, addresses and telephone numbers of persons who will be called as witnesses, and, in the case of expert witnesses, the experts’ qualifications, the subject matter upon which each will testify, a copy of the written reports submitted by such experts, or if none, a statement of the facts and opinions to which each expert will testify and a summary of the grounds for each such opinion.

(C) Also, in such matters, both disciplinary counsel and respondent shall be responsible for preparing requests for findings of fact and rulings of law.

(D) Copies of pre-marked exhibits, witnesses lists and expert witness disclosures, shall be filed by disciplinary counsel and respondent with the attorney regulation office at least ten (10) days prior to the date of the hearing. Five (5) copies shall be provided. Copies shall be also provided to the opposing party concurrent with the submission to the attorney regulation office. Requests for findings of fact and rulings of law shall be filed at the beginning of the hearing.

(8) Further Review.

If at any point prior to the hearing on the merits, disciplinary counsel concludes that the development of evidence establishes that there is no valid basis for proceeding to a hearing, he or she shall submit a written report to the professional conduct committee requesting that the matter be dismissed either with a finding of no professional misconduct or on some other basis.

(c) Conduct of Hearings.

(1) General Rule.

The hearing panel chair shall conduct the hearing. A record shall be required and a transcript provided to the respondent, disciplinary counsel and the professional conduct committee. A transcript may be provided to the complainant if requested. A copy of the transcript may be obtained from the stenographer by anyone else at the expense of the person requesting it, and it shall thereafter be provided within a reasonable time. The respondent may have the right to be represented by counsel, and respondent and disciplinary counsel shall 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 disciplinary counsel to file specific post-hearing documentary evidence as part of the record within such time as shall be fixed by the hearing panel chair.

(4) Oral Examination.

Witnesses shall be examined orally by disciplinary counsel or the respondent calling the witnesses as well as by the members of the hearing panel. Witnesses whose testimony is to be taken, including the complainant and the respondent, shall be sworn, or shall affirm, before their testimony shall be deemed evidence in any proceeding or any questions are put to them. Cross-examination of witnesses, including the complainant 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 facts relating to, or reaching a just and proper determination of, the matters before the hearing panel.

(5) Presentation and Effect of Stipulations.

Disciplinary counsel and the respondent 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 with respect to 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 (I)(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, as well as to opposing counsel or the other party. Legible copies shall be admissible, unless otherwise required by the hearing panel chair.

(9) Photographing, Recording and Broadcasting.

Except by order of the hearing panel 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 the proceeding. Reporters hired by the hearings 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) Report of Hearing Panel. After hearing the evidence, the hearing panel shall make a written report of its findings of fact which shall be signed by the hearing panel chair. The hearing panel shall include its recommendations whether its factual findings support a conclusion that the rules of professional conduct were violated by clear and convincing evidence and, if so, an appropriate sanction. The report shall be submitted to the professional conduct committee no more than sixty (60) days after the close of each hearing. If the hearing panel is not unanimous in any recommendations it may make, a minority report may also be submitted to the professional conduct committee. Copies of all hearing panel reports shall be sent to disciplinary counsel, the complainant and the respondent at the same time they are sent to the professional conduct committee.

(2) Professional Conduct Committee. Within fifteen (15) days of the date of the hearing panel report or reports, disciplinary counsel and respondent may file stipulations with proposed resolutions for the committee’s review and approval and may submit memoranda addressing any issues in the hearing panel reports or raised during the hearings.

(A) Whether memoranda are filed or not, either disciplinary counsel or respondent may during the same fifteen (15) day period request oral argument before the professional conduct committee.

(B) Unless waived, oral arguments will be conducted to allow disciplinary counsel and each respondent ten (10) minutes to address the findings and rulings contained in the hearing panel reports.

(C) After consideration of oral arguments, hearing panel reports and memoranda, if any, and transcripts of hearings before the hearing panel, the professional conduct committee shall determine whether there is clear and convincing evidence of violations of the rules of professional conduct. The professional conduct committee may:

(i) dismiss complaints, with or without a warning, administer a reprimand, public censure or a suspension not to exceed six (6) months;

(ii) attach such conditions as may be appropriate to any discipline it imposes;

(iii) divert attorneys out of the attorney regulation system as appropriate and on such terms and conditions as is warranted; and

(iv) initiate proceedings in the supreme court, through disciplinary counsel, on all matters in which the professional conduct committee has determined warrant the imposition of disbarment or of suspension for a period in excess for six (6) months;

(v) assess to a disciplined attorney to the extent appropriate, in whole or in part, expenses incurred by the attorney regulation system in the investigation and enforcement of discipline.

(D) If neither disciplinary counsel nor the respondent requests oral argument, the professional conduct committee shall make its decision based on the hearing panel report, the hearing transcript, and any memoranda that may be filed.

(3) Form of Sanctions.

In the event that the professional conduct committee determines that the proceeding should be concluded by reprimand, public censure or a suspension of six (6) months or less, it shall give written notice thereof to the respondent, disciplinary counsel and the complainant.

The reprimand, public censure or suspension shall state the charges that were sustained, any charges that were dismissed and the respondent’s right to appeal to the supreme court.

Any public censure or suspension issued by the professional conduct committee that becomes final and not subject to further appeal shall be sent to newspapers of general circulation, one with statewide circulation, and one with circulation in the area of respondent’s primary office, as well as to the New Hampshire Bar News for publication.

In the event the professional conduct committee finds a violation of the rules of professional conduct but determines that a petition should be filed with the supreme court for a sanction of greater than a six (6) month suspension, it shall give notice of its findings and its intent to file a petition to the respondent, disciplinary counsel and the complainant.

(4) Appeal of Sanction.

A respondent shall be entitled to appeal a finding of professional misconduct or a sanction, and disciplinary counsel shall be entitled to appeal a sanction, issued by the professional conduct committee by filing a written notice of appeal in accordance with the rules of the supreme court. The appeal shall be public.

(IV) Confidentiality and Public Access

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

(1) General Rule. The confidentiality of and public access to records, files and proceedings shall be governed by supreme court rule 37.

(2) Public Access to Files.

(A) Grievance against Person Not Subject to Rules of Professional Conduct. Correspondence to the grievant 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 against a person who is subject to the rules of professional conduct but which is not docketed as a complaint, shall be maintained at the attorney regulation office for two years from the date of original filing, and it 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 shall be maintained at the attorney regulation office 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 section (V) of this rule.

(D) Index of Complaints. The attorney regulation office 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.

(E) Protective Order. Any person or entity, at any point in the processing of a complaint, may request a protective order from the professional conduct 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 professional conduct committee. The professional conduct committee shall act upon the request within a reasonable time. Within thirty (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 supreme 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 professional conduct committee’s decision about issuance of a protective order shall be filed as a confidential matter in the supreme court.

(V) 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 professional conduct 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 professional conduct 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 supreme 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 professional conduct committee may consider any other complaints filed against the respondent and any other relevant facts.

(d) Effect of Annulment.

Upon entry of the order, the respondent shall be treated in all respects as if any 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 professional conduct committee or the supreme court 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 attorney regulation office may keep the docket or card index showing the names of each respondent and complainant, 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 component parts of the attorney regulation systems shall not thereafter disclose the record of the complaint which resulted in a finding of no misconduct, admonition, warning, or reprimand, except as permitted by section (V)(d) of this rule, 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 supreme 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 professional conduct committee’s exercise of its discretion in denying the order of annulment is unsustainable.

(VI) Request for Reconsideration

(a) Request. A request for reconsideration shall be filed with the committee that issued the decision within ten (10) days of the date on that 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 considering the matter, 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 considering the request, may reverse its decision or take other appropriate action, with or without a hearing.

(d) Effect of Request. The filing of an initial request for reconsideration of a sanction issued by the professional conduct committee shall stay the thirty (30) day period for filing an appeal pursuant to supreme court rule 37(3)(c).

(VII) Service of Copies

(a) Copies of all pleadings filed and communications addressed to the attorney regulation office or any committee of the attorney regulation system by the grievant or complainant shall be furnished forthwith to each respondent who is the subject of the grievance or complaint. All such pleadings and communications shall contain a statement of compliance herewith.

(b) Copies of all pleadings filed and communications addressed to the attorney regulation office or any committee of the attorney regulation system by the respondent who is the subject of the grievance or complaint shall be furnished forthwith to the grievant or complainant and to any other attorney who is the subject of the grievance or complaint. All such pleadings and communications shall contain a statement of compliance herewith.

(c) Copies of all pleadings filed and communications addressed to the hearings committee or any panel thereof or to the professional conduct committee by disciplinary counsel shall be furnished forthwith to the grievant or complainant and to the respondent who is the subject of the grievance or complaint. All such pleadings and communications shall contain a statement of compliance herewith. The requirements of this section shall not apply in any matter in which the disciplinary counsel is representing the professional conduct in the supreme court or elsewhere.

(d) Service on a person who is personally represented by counsel shall be made on counsel. This section does not prohibit that service also be made on the person represented by counsel. Service may be personal or by first class mail.

APPENDIX G

[NOTE: The Advisory Rules Committee recommends that if the court does not adopt the amendments to Rule 37A set forth in Appendix F, then, in the alternative, Rule 37A(2)(a)(6) should be adopted as set forth below.]

Adopt Supreme Court Rule 37A(2)(a)(6) on a permanent basis; Rule 37A(2)(a)(6) was adopted on a temporary basis by order dated July 18, 2002:

(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, including a special 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. An investigating member who is a regular member of the committee 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. An investigating member who is a special member of the committee shall not participate in any further proceedings after the committee has taken action in accordance with section (2)(a)(8).

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

 

APPENDIX H

Amend Supreme Court Rule 38, Application of the Code of Judicial Conduct section A, by inserting the phrase "marital master," so that section A as amended shall state as follows:

A. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner, marital master, special master or referee, is treated as a judge within the meaning of this Code. All judges shall comply with this Code except as provided below.

 

 

APPENDIX I

Amend Supreme Court Rule 38, Application of the Code of Judicial Conduct section C, by deleting said section and replacing it with the following:

C. Part-time Judge. A part-time judge:

(1) is not required to comply

(a) except while serving as a judge, with Section 3B(9);

(b) at any time, with Sections 4B, 4C(2), 4C(3)(a), 4D(1)(b), 4D(3), 4D(4), 4D(5), 4E, 4F, 4G, and 4H;

(c) at any time, with Section 4C(1) but only to the extent that it prohibits appearances before administrative bodies in adjudicatory proceedings; otherwise, a part-time judge shall comply with Section 4C(1). 

(2) shall not practice law in the court on which the judge serves, in any other court of the same level (e.g., a part-time district court judge shall not practice law in any other district court), or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto. 

(3) may serve as counsel to the town wherein the judge's court is located or a town within the judicial district of the judge's court, provided that: 

(a) the judge may give no advice to the police of such town and may give no advice to any other officer or employee of the town that could reasonably be expected to influence the exercise of discretion by the police in the performance of their duties; 

(b) the judge may give no advice to any officer or employee of the town on a matter that could reasonably be expected to be the subject of any action or suit before the judge's court; and 

(c) the judge shall recuse himself from sitting as judge on any case in which the judge's advice to the town is directly called into question or in which a ruling could directly affect the interests of the town.

 

Commentary:

 

When a person who has been a part-time judge is no longer a part-time judge (no longer accepts appointments), that person may act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto only with the express consent of all parties pursuant to Rule 1.12(a) of the N.H. Rules of Professional Conduct.

 

(4) Notwithstanding anything above to the contrary, a part-time marital master shall be governed by all of the canons of the Code of Judicial Conduct as provided in Superior Court Administrative Rule 12-7.

 

 

APPENDIX J

Adopt Supreme Court Rule 39(2)(a) on a permanent basis; Rule 39(2)(a) was adopted on a temporary basis by order dated May 21, 2002:

(2) Appointment of Committee

    (a) The committee on judicial conduct shall consist of eleven members appointed by the supreme court. One member shall be an active or retired justice of the superior court; one a district court judge; one a probate court judge; one a clerk of court; two New Hampshire Bar Association members; and five citizens not of the bar or bench.

   

APPENDIX K

Adopt Supreme Court Rule 39(4)(a) on a permanent basis; Rule 39(4)(a) was adopted on a temporary basis by order dated May 21, 2002:

(4) Vacancy and Disqualification

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

        (1) when a member ceases to be a member of the committee; or

        (2) when a judge who is a member of the committee ceases to hold the office which he or she held at the time of selection; or

        (3) when a lawyer ceases to be admitted to practice in the courts of this State, becomes an inactive member of the bar, or is appointed to a judicial office or as a clerk of court; or

        (4) when a citizen appointee becomes a lawyer, clerk of court, or a judge; or

        (5) when a member ceases to be domiciled in New Hampshire; or

        (6) when a clerk of court who is a member of the committee ceases to hold the office which he or she held at the time of selection.

APPENDIX L

Adopt Supreme Court Rule 42(10)(a)(iv)(B) on a permanent basis; Rule 42(10)(a)(iv)(B) was adopted on a temporary basis by order dated March 12, 2003:

(B) been primarily engaged in the active practice of law, for five of the seven years immediately preceding the date upon which the motion is filed, in states, territories, or the District of Columbia that allow admission without examination of persons admitted to practice law in New Hampshire under circumstances comparable to those set forth in this rule;

       

APPENDIX M

Amend Superior Court Rule 21 by adding a new second paragraph thereto, so that Rule 21 as amended shall state as follows:


  
  21. Copies of all pleadings filed and communications addressed to the Court shall be furnished forthwith to all other counsel or to the opposing party if appearing pro se. All such pleadings or communications shall contain a statement of compliance herewith.

A no contact order in a domestic violence, stalking, or similar matter shall not be deemed to prevent either party from filing appearances, motions, and other appropriate pleadings, through the Court. At the request of the party filing the pleading, the Court shall forward a copy of the pleading to the party or counsel on the other side of the case. Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel, when both parties are represented.

   

 

 

APPENDIX N

Amend Superior Court Rule 64-B, which was adopted on a temporary basis by order dated November 30, 2000, by amending the first sentence of the rule and by adopting the rule as amended on a permanent basis, so that the rule as amended shall state as follows:

64-B. In any civil case in which all parties consent, it is within the discretion of the trial judge to permit jurors to ask written questions. If a trial judge decides to permit jurors to ask written questions at trial, the following procedure shall be utilized:

1. At the start of the trial, the judge will announce to the jury and counsel the decision to allow jurors to ask written questions of witnesses. At this time the judge will instruct the jurors on taking notes and, as to the scope of questioning, the procedure to be followed.

2. Trial will proceed in the normal fashion until questioning of the first witness has been completed by both counsel.

3. When questioning of the first witness is completed, the court will allow jurors to formulate any questions they may have, in writing. Jurors will be asked to put their seat number on the back of the question. The judge is the only person who will see the number.

4. The bailiff will collect the anonymous questions and deliver them to the judge.

5. At the bench, the judge and counsel will read the proposed questions. Counsel will be given the opportunity to make objections on the record to any proposed question after which the judge will decide if they are appropriate, based on the rules of evidence, and whether, under the circumstances of the case, the judge will exercise discretion to permit the questions.

6. Questions may be rephrased by the judge, or the judge may ask the question in a way mutually agreeable to the parties. The question should, however, attempt to obtain the information sought by the juror's original question.

7. After all the chosen questions are answered, each counsel will have an opportunity to re-examine the witness. The party who called the witness will proceed first. The judge should allow only questions which directly pertain to questions posed by the jurors. The judge may also impose a time limit. If the judge does plan to impose a time limit, counsel should be notified and given an opportunity to object to the length outside the hearing of the jury.

8. The judge shall instruct the jury substantially as follows:

A. INSTRUCTIONS TO THE JURY AT BEGINNING OF TRIAL

Ladies and gentlemen of the jury, I have decided to allow you to take a more active role in your mission as finders of fact. I will permit you to submit written questions to witnesses under the following arrangements.

After each witness has been examined by counsel, you will be allowed to formulate any questions you may have of the witness. Please remember that you are under no obligation to ask questions, and questions are to be directed only to the witness. The purpose of these questions is to clarify the evidence, not to explore your own legal theories or curiosities.

If you do have any questions, please write them down on a pad of paper. Do not put your name on the question, and do not discuss your questions with fellow jurors. The bailiff will collect the questions, and I will then consider whether they are permitted under our rules of evidence and are relevant to the subject matter of the witness' testimony. If I determine that the question or questions may be properly asked of the witness pursuant to the law, I will ask the question of the witness myself.

It is extremely important that you understand that the rejection of a question because it is not within the rules of evidence, or because it is not relevant to the witness' testimony, is no reflection upon you. Also, if a particular question cannot be asked, you must not speculate about what the answer might have been.

B. INSTRUCTIONS TO THE JURY WHEN DECISION WHETHER TO ASK QUESTIONS IS MADE

Ladies and gentlemen of the jury, I remind you of my earlier remarks regarding juror questions. Some questions cannot be asked in a court of law because of certain legal principles. For this reason there is the possibility that a question you have submitted has been deemed inappropriate by me and will not be asked. I alone have made this determination, and you should not be offended, or in any way prejudiced by my determination.

C. IN ITS DISCRETION, THE COURT MAY ADD ADDITIONAL INSTRUCTIONS.

APPENDIX O

Repeal Superior Court Rule 86 on a permanent basis; said rule was repealed on a temporary basis by order dated January 9, 2003.

APPENDIX P

Amend Superior Court Rule 87(b) by deleting section (b) and replacing it with the following, so that Rule 87(b) as amended shall state as follows:

(b) Taxation of Costs. Upon written request, the clerk shall tax costs in any case, which shall include the fees of the clerk and fees for service of process which are documented in the court file.

Any party claiming other allowable costs shall file a motion to allow costs together with an itemized, verified bill of all costs requested, to be ruled upon by the Court. Any party aggrieved by the Court's order concerning costs may appeal therefrom within 30 days from the date of notice of such order, regardless of whether an appeal concerning the underlying judgment is sought.

APPENDIX Q

Adopt a new Superior Court Rule 195-A, which shall state as follows:

ATTENDANCE OF MINORS

195-A. DEPOSITIONS AND HEARINGS. In any proceedings brought pursuant to RSA chapters 168-A, 458, 458-A, or 460, no minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing without prior order of the court based upon good cause shown unless in an emergency situation.

 

APPENDIX R

Amend Superior Court Administrative Rule 1-6 by deleting it and replacing it with the following:

1-6 Authority of Clerks.

In addition to the inherent authority of the clerk of superior court, and all deputy clerks appointed pursuant to RSA 499:13, to perform such duties and acts as may be necessary to effectuate and provide for the orderly and efficient operation of the court and clerk’s offices, and to exercise such other powers and responsibilities conferred upon them by statute, court rule or administrative rule, the clerk of superior court for each county and deputy clerks of court who are attorneys licensed to practice in the State of New Hampshire shall have the following authority:

I. To perform administrative acts including but not limited to:

(a) Scheduling of all hearings and issuing notices to appear and transport orders.

(b) Issuing orders of notice or orders setting or amending return days.

(c) Issuing orders relative to service of process.

(d) Effectuating all court orders including the issuance of commitment orders, arrest orders, or summons to appear for contempt proceedings.

(e) Disbursing funds held by the court upon appropriate order by a justice.

(f) Selecting counsel when appointment of counsel is ordered by the court and appointing and selecting counsel to serve as guardian ad litem in domestic and equity matters.

(g) Performing such duties relative to jurors as may be performed by a clerk under RSA 500-A.

The additional authority of deputy clerks who are not attorneys licensed to practice law in the State of New Hampshire shall be limited to Sections I(a), (b), (d), (e) and (g).

II. To be available for appointment by a presiding justice of the superior court as a master pursuant to RSA 519:9 to hear uncontested divorces, applications for temporary orders or ex parte restraining orders in marital cases, petitions for ex parte attachments, and to conduct pretrial conferences in all non-criminal matters, and to make recommendations to the court relative thereto, when a justice or marital master is not present or is otherwise unavailable. Said appointment shall be made by a presiding justice of the superior court and shall not extend for more than 90 days, provided that said appointment can be renewed for additional 90-day periods.

III. After personal review, with the consent of a presiding justice of the superior court

(a) to act on non-criminal motions (including petitions to attach with notice) to which no objection has been filed or to which opposing counsel has indicated there is no objection, provided that the authority is limited to non-dispositive motions in cases where all parties are represented by counsel;

(b) to approve stipulations where all parties have indicated in writing that they agree with the relief requested and are represented by counsel; and

(c) to approve preliminary pretrial stipulations in cases where all parties are represented by counsel.

The signature of the clerk or the attorney deputy clerk taking such action shall appear on the appropriate document involved along with the statement "Acting pursuant to Superior Court Administrative Rule 1-6." In the event that a motion to reconsider or an objection is filed concerning the action taken, the matter shall be scheduled for a hearing before a justice.

IV. To perform the following acts and issue such orders as provided for in the superior court rules, in addition to those rules where the clerk’s authority is already specifically delineated:

(a) To enter default and continue for judgment pursuant to Rule 14.

(b) Upon withdrawal of counsel to set a date for the filing of a new appearance pursuant to Rule 20.

(c) To discontinue cases pursuant to Rule 52.

(d) To allow the withdrawal of court documents pursuant to Rule 56.

(e) To enter final judgment pursuant to Rule 74.

(f) In conjunction with the presiding justice, to enter scheduling orders pursuant to Rule 96-A.

(g) To enter orders regarding service by publication pursuant to Rule 128 and Rule 180.

(h) To enter default pursuant to Rule 131 and Rule 139.

(i) To dismiss marital cases which have been pending for two years pursuant to Rule 210.

(j) To waive the waiting period in marital cases pursuant to Rule 207.

(k) To non-suit or dismiss non-jury cases which have been pending for three years pursuant to Rule 168.

The signature of the clerk or the attorney deputy clerk taking any action enumerated in paragraph IV shall appear on the appropriate document involved along with the statement "Acting pursuant to Superior Court Administrative Rule 1-6." In the event that a motion to reconsider or an objection is filed concerning the action taken, the matter shall be scheduled for a hearing before a justice.

APPENDIX S

Amend Superior Court Administrative Rules chapter 12 by deleting the entire chapter (sections 12-1 through 12-18) and replacing it with the following:

The Marital Master Program

12-1. The Marital Master Program is in effect in all Superior Court and Family Division court locations. The number of Marital Masters to be assigned to each court location shall be determined by the Chairman of the Masters Committee acting through the Administrative Center of the Superior Court, after consultation with the Clerk.

12-2. The Marital Master Program shall be administered by the Masters Committee consisting of five Justices, one of whom shall be designated Chairman, all appointed by the Chief Justice. The Masters Committee shall be assisted in the carrying out of its duties by the Administrative Center of the Superior Court.

12-3. All applicants for appointment as a Marital Master must meet the following qualifications:


        (a) Five years or more in the general practice of law;


        (b) Experience in the handling of domestic relations cases, including contested matters.

12-4. As a condition of appointment, Marital Masters are prohibited from the practice of law.

12-5. Applications to serve as a Marital Master shall be on forms supplied by the Masters Committee and shall be filed with the Administrative Center of the Superior Court, 17 Chenell Drive, Suite 1, Concord, New Hampshire 03301. All applications shall be referred to the New Hampshire Bar Association Board of Governors for recommendations as to whether the applicant is qualified or not qualified to serve as a Marital Master. Upon receipt of the Board of Governors' recommendations, each applicant shall be interviewed and evaluated by the Masters Committee, which shall make its recommendations to the full Court.

12-6. All Marital Masters shall be appointed for a five-year period, and must file a request with the Masters Committee no later than 90 days prior to the expiration date of their appointment, if they wish to be reappointed. Such requests shall then be referred to the New Hampshire Bar Association Board of Governors for review and comment; upon receipt of same, the Masters Committee shall act on such requests and make its recommendations to the full Court.

12-7. The Masters Committee may at any time consider and act on any grievance or complaint concerning a Marital Master and take whatever action is appropriate, including recommendation to the full Court that the Marital Master's appointment be terminated. All Marital Masters shall be governed by all of the canons of the Code of Judicial Conduct. Notwithstanding any appointment, Marital Masters serve at the pleasure of the Court.

12-8. Marital Masters shall participate annually in such continuing legal education program as may be designated and approved by the Masters Committee.

12-9. Authority of Marital Masters.

(a) Marital Masters serving in the Superior Court are authorized to hear domestic relations cases, except matters involving incarceration, as follows: divorce, child custody and visitation between unwed parties, child support, legal separation, paternity, interstate custody and child support under UIFSA, domestic violence between wed and unwed parties, and grandparent visitation.

If possible, a Marital Master presiding at the first hearing in a case will thereafter be assigned to hear all matters pertaining to that case.

(b) Marital Masters serving in the Family Division are authorized to hear family cases, except matters involving incarceration, as follows: guardianship over minors, abuse and neglect of children, divorce, child custody and visitation between unwed parties, child support, legal separation, paternity, interstate custody and child support under UIFSA, domestic violence between wed and unwed parties, and grandparent visitation.

If possible, a Marital Master presiding at the first hearing in a case will thereafter be assigned to hear all matters pertaining to that case.

12-10. The assignment of marital cases shall be made by the Clerk who shall designate a specific day, or days, each week for hearing of marital cases by a Marital Master. A limited number of cases shall be assigned for a particular day and shall be scheduled so as to prevent crowding.

12-11. [Repealed.]

12-12. [Repealed.]

12-13. All marital cases shall be heard in dignified surroundings, either in chambers or in open court. All Marital Masters shall wear a robe except where an informal conference may be desirable (children, etc.).

12-14. In addition to Administrative Rules 7-1 through 7-5, the Court has adopted the following policies and rules:

        A. DECREES

            1. All decrees, findings, rulings, etc., are to be typed before submission to Clerks for issuance except in exceptional circumstances.

            2. Each decree should read: DIVORCE DECREED, not granted and where the divorce is decreed for the cause of irreconcilable differences, the entire cause is to be set forth (statutory language).

            3. Property settlements are not subject to retroactive modification, absent claim of fraud, deceit, perjury, concealment, etc.

            4. On all orders for support, a date certain should be made in the order for the beginning of support.

            5. The captions on any decree should distinguish the character of the decree (temporary-permanent; rulings and/or orders of motions for discovery, visitation, custody, etc.), and should include, when possible, filing date or dates of pleadings resulting in the opinion, decree, or ruling, preferably in parentheses after the overriding caption.

        Cross-referencing is to be utilized and pleadings being ruled upon should reflect, "See decree, ruling, etc., of even date", signed by the Presiding Justice.

        B. RULE 197 AFFIDAVITS

            1. Superior Court Rule No. 197 Affidavits are not to be accepted for filing by the Clerks of Court, the Presiding Justice, or Marital Master, unless the same are typewritten.

            The foregoing provision of Rule 197 is to be strictly enforced and may be waived by the Presiding Justice, Clerk, or Marital Master only in cases where a party appears pro se and in cases where there is a showing of exceptional circumstances.

            2. Rule 197 Affidavits are to be exchanged by counsel/parties prior to hearing.

            3. The Court requires that the parties include current fairmarket value of any real estate in the affidavits as well as the lump sum value of any pension plans, whether or not they are vested, and any other relevant information regarding value of such plans.

        C. AID FOR DEPENDENT CHILDREN 

        Rule 197 Affidavits are to reflect whether the party is currently receiving assistance and also whether such assistance has ever been received in the past (by period of time and amount). In addition, inquiries should be made as to the likelihood of a party being a recipient in the future. In all divorce cases where a party is awarded custody of the children and support, which is to be paid directly to the party, there is to be a provision in the decree that if the party procures AFDC or TANF in the future, then payments will automatically become payable through the division of human services.

        D. DIVISION OF HUMAN SERVICES REFERRALS

        No referrals for New Hampshire Division of Human Services investigations are to be automatically approved, even when the parties agree. A show cause hearing is to be required except in extraordinary circumstances, and when referrals are approved, inquiry is to be made to determine if the party or parties are to bear the costs of reference.

        When an order is made for the Probation Department to investigate the question of custody, the parties, if financially able, are to be required to help defray the cost; ordinarily a payment of $200.00 will be sufficient.

        If the Division of Human Services is ordered to investigate the question of support, the parties are to be ordered to report to the Division of Human Services and to file copies of their last income tax returns.

12-15. Marital Masters not on circuit shall not be entitled to reimbursement for any mileage or meals not associated with an overnight stay on court business. Under this policy meals are reimbursed only if connected with an overnight stay; Marital Masters who have to travel to various courthouses are entitled to have mileage expense reimbursed. The mileage allowance shall be at such rate as the Superior Court shall determine from time to time.

12-16. Marital Masters shall be paid salaries and expenses at such rate as the Judicial Branch shall determine from time to time.

APPENDIX T

Repeal Superior Court Administrative Rules chapter 13 (sections 13-1 through 13-14) in its entirety.

APPENDIX U

Adopt a new District and Municipal Court Rule 1.3-A as follows:

Rule 1.3-A. Pleadings – copies to all parties

Copies of all pleadings filed and communications addressed to the Court shall be furnished forthwith to all other counsel or to the opposing party if appearing pro se. All such pleadings or communications shall contain a statement of compliance herewith.

A no contact order in a domestic violence, stalking, or similiar matter shall not be deemed to prevent either party from filing appearances, motions, and other appropriate pleadings, through the Court. At the request of the party filing the pleading, the Court shall forward a copy of the pleading to the party or counsel on the other side of the case. Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel, when both parties are represented.

APPENDIX V

Repeal District and Municipal Court Rule 3.22 on a permanent basis; said rule was repealed on a temporary basis by order dated January 9, 2003.

APPENDIX W

Adopt the Preface to the Rules of Practice and Procedure in the Probate Courts and the following Probate Court Rules 1 through 171, as amended, on a permanent basis:

PROBATE COURT RULES

NOTE: The rules as published herein are subject to revisions promulgated from time to time by the New Hampshire Supreme Court and published in the New Hampshire Bar News. See Supreme Court Rules 1 and 51.

PREFACE:

As good cause appears and as justice may require, the Court may waive the application of any rule.

Upon the violation of any rule of Court, the Court may take such action as justice may require. Such action may include, without limitation, the imposition of monetary sanctions against either counsel or a Party, which may include fines to be paid to the Court, and reasonable attorney's fees and costs to be paid to the opposing party.

 

RULE 1. DEFINITIONS

The following defined terms were developed to ensure clarity and consistency and are capitalized when used in a rule.

Administrator: The word Administrator includes every Person to whom an administration of an estate has been granted, including administrators and executors.

Answer: A written response to a Petition. However, an Answer is not the only acceptable written response to a Petition, other examples would be a Motion to dismiss or an objection.

Appearance (General): A written document filed by, or on behalf of a Party, pursuant to Rule 14, submitting to the jurisdiction of the Court.

Appearance (Special): An Appearance filed with the Court for the sole purpose of determining jurisdiction.

Attorney: Any person (a) admitted to practice law in New Hampshire, (b) allowed to appear in New Hampshire courts under pro hac vice (Rule 19) status, or (c) authorized by another under a power of attorney, usually referred to as an attorney-in-fact.

Beneficially Interested: As defined in RSA 550:12.

Cause: Any matter filed with the Court which requires the filing of an Appearance.

Court: Probate Court

Fiduciary: The word fiduciary includes every Person appointed to act as an administrator, executor, guardian, conservator, or trustee.

Motion: A written Pleading or oral request to the Court requesting the Court to take particular action.

Party: Any Person whose name is designated on the record to a proceeding as a Petitioner, Respondent, guardian ad litem or any other person or legal entity who has filed an Appearance, also referred to as a Party appearing of record.

Person: A natural person or any legal entity.

Petition: A written Pleading that initiates a proceeding.

Petitioner: A Party who initiates a proceeding.

Pleading: A Petition, Motion, objection, Answer, account or inventory filed with the Court requesting action by the Court.

Power of Attorney: An instrument signed by a Party, witnessed and acknowledged before a Justice of the Peace or Notary Public, authorizing an individual to act on behalf of the Party to do a particular act, appear in a particular matter, or for the general transaction of business.

Proof of Assets: Documentation that demonstrates that a ward has sole ownership of the assets. An example of documentation for savings, checking, certificates of deposit, and/or any other accounts, may be a photocopy of the current statement that shows the balance and the complete account title and ownership information.

Pro Se Party: A Party who does not retain an Attorney but appears personally.

Register: Register of Probate

Respondent: A Party who responds to a Petition.

Return Day: The date upon which Petitions are returnable to the Court. It is usually the first Tuesday of any month unless otherwise ordered by the Court. The Return Day is selected to create the time limits people are given in which to respond.

Tangible Personal Property: Property of material substance such as, goods, wares and merchandise.

 

RULE 2. PETITIONS, APPEARANCES - Addresses

Petitions shall not be accepted for entry unless the mailing address and actual street address of the party filing the Petition appears thereon, and no Appearance shall be filed unless it contains the mailing address and actual street address of each Party included in said Appearance. For good cause shown, any Petition or Appearance rejected for non-compliance with this rule may, upon Motion and compliance, be admitted for filing.

All changes of either mailing address or actual street address shall be filed with the Register. The change of address shall include certification that a copy of it has been forwarded to all Attorneys, Pro Se Parties appearing of record, and to all Persons Beneficially Interested. Whenever notice to a Party is required, notice to the last mailing address on file shall be deemed notice to, and binding on, the Party.

 

RULE 3. PETITIONS - Entry

No Petition shall be presented to, or heard by, the Court until filed with the Register’s office, the applicable entry fee paid, and the petition is entered upon the docket.

For the purpose of compliance with any time deadlines or statutes of limitation, the terms "filing" and "entry" shall have the same meaning and shall be used interchangeably. Whenever any document is received by the Court and time-stamped as received, or the document is entered in the Court's case management system, the earlier of the two shall be accepted as filing or entry date.

 

RULE 4. PETITIONS, MOTIONS, OR PLEADINGS – Approved Forms, Form Reproduction

No Petition, Motion, objection, or other Pleading, which is contained in a letter shall be accepted by the Register, as such, or acted on by the Court. Approved forms shall be furnished by the Register and must be used in all proceedings to which they are applicable. In all inventories and accounts where there is not sufficient space in the original form, additions or riders may be attached on paper of the same size. If no approved form is specifically applicable, the Party shall then file a Petition or Motion in such form as complies with the Rules of this Court.

Practitioners may produce form reproductions for use in the Courts that are either computer generated replicas or photocopies of forms furnished by the Registers. Form reproductions are documents containing the identical wording, in the identical format, and pagination as in the original, but font size or style may be different from the font size or style of the original court furnished form. Computer generated replicas or photocopies of multi-paged probate forms may be single-sided.

All Courts shall accept form reproductions of approved forms. All Courts shall consider that the Party who signs and/or files the form reproduction has agreed that the document is a reproduction of the form of the same import furnished by the Register. The Party who signs and/or files the form reproduction shall be held accountable for its form and content. Discrepancies between a form reproduction and a court-furnished original may subject the Party who signs/or files the reproduction to court-imposed sanctions or penalties, including removal as Fiduciary.

 

RULE 5. PETITIONS, MOTIONS, OR PLEADINGS - Failure to Comply with Rules or Statutes

The Register may refuse to accept any Petition, Motion or Pleading that the Register determines does not comply with these rules or statutory procedure. In the event an objection is made to such determination, a written Motion may be made to the Court to rule on such determination.

 

RULE 6. PETITIONS, MOTIONS, OR PLEADINGS - Addressing the Court

No Attorney or Party shall directly address himself or herself by Petition, Motion or Pleading, to any Judge of Probate, but shall file such Petition, Motion or Pleading with the appropriate Register.

 

RULES 7-9. [Reserved for Future Use]

 

RULE 10. DOCKETS

The Register shall enter upon the docket, at the time of filing the Petition, the names and addresses of all Parties involved in such Petition.

 

RULE 11. DOCKETS - Order of Presentation

Petitions, Motions and other Pleadings shall be presented to the Court in the order in which they are filed, unless otherwise determined by the Court.

 

RULE 12. COMPUTATION AND EXTENSION OF TIME

In computing any period of time prescribed or allowed by these rules, by order of the Court, or by applicable law, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, legal holiday as specified in RSA 288, as amended, or other day the Court is not open, in which event the period shall extend until the end of the next day that is not a Saturday, Sunday, legal holiday as specified in RSA 288, as amended, or other day the Court is not open.

Motions to enlarge the time prescribed by these rules or by Court order for doing any act are not favored.

 

RULE 13. TRIAL ASSIGNMENT CALENDAR

A Party, Petitioner or Respondent, anytime subsequent to, or contemporaneous with, the filing of an Answer to a Petition, may by Motion request that the Court place the contested matter on the trial calendar. Such Motion shall be a representation to the Court by the Party or the Attorney for the Party that the Party is ready for trial, that there is no known reason why the opposing Party is not ready for trial, that settlement negotiations have been exhausted and that a trial is probably certain. Rule 59 shall be strictly enforced as to all such Motions.

 

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 or any provision of the rules of professional conduct applicable to nonlawyer representatives, 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 person who is not a lawyer who is permitted to represent any other person before any court of this State must comply with the Rules of Professional Conduct as set forth in Professional Conduct Rule 8.5, and shall be subject to the jurisdiction of the committee on professional conduct.

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.

 

RULE 15. EXECUTION OF PLEADINGS

All Petitions shall be signed by the Petitioner, except that Petitions requesting equitable relief may be signed by the Petitioner or the Petitioner's Attorney. All bonds, inventories and accounts shall be signed by the Fiduciary. Motions and other Pleadings may be signed by the Party, the Party's Attorney or the attorney's associate. Names shall be typed, stamped or printed beneath all signatures on papers to be filed or served.

The signature of any Person to a Petition, Motion, or other Pleading constitutes a certification that he or she has read the Pleading; that to the best of his or her knowledge, information and belief there is a good ground to support the Pleading; and that it is not interposed for delay.

If a Petition, Motion, or other Pleading is not signed, it may be stricken and the action may proceed as though it had not been filed.

 

RULE 16. ADDRESSING THE COURT

Anyone addressing the Court or examining a witness shall stand. No-one shall approach the bench to address the Court except by permission of the Court.

 

RULE 17. [Reserved for Future Use]

 

RULE 18. ATTORNEYS - Testifying

No Attorney shall be compelled to testify in any Cause in which the Attorney is retained, unless the Attorney has been notified in writing, not less than thirty (30) days prior to the hearing that the Attorney will be summoned as a witness therein.

 

RULE 19. ATTORNEYS - Appearing Pro Hac Vice

An Attorney who is not a member of the Bar of this State shall not be allowed to enter an Appearance or engage in any proceeding before the Probate Court, except on Motion, which shall not ordinarily be granted unless a member of the Bar of this State is associated with the Attorney and present before the Court.

 

RULE 20. WITHDRAWALS

A. Parties may withdraw an Appearance in the following manner:

1. A Pro Se Party, including Pro Se Creditor shall file a withdrawal with the Register and certify that a copy of the withdrawal has been forwarded to all other Parties.

2. An Attorney for a Creditor shall file a withdrawal with the Register and certify that a copy of the withdrawal has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties.

3. An Attorney for any other party and Guardian ad Litem shall file a motion to withdraw with the Register and certify that a copy of the motion has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties. In cases scheduled for a hearing, no motion to withdraw shall be granted except for good cause shown. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the Attorney's services. A Withdrawal is not effective until the motion to withdraw is granted by the Court.

4. An Attorney for Respondent shall file a motion to withdraw with the Register and certify that a copy of the motion has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties.

(a) In cases scheduled for a hearing, no motion to withdraw shall be granted except for good cause shown. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the Attorney's services. A Withdrawal is not effective until the motion to withdraw is granted by the Court.

(b) Whenever an Attorney is allowed to withdraw an Appearance, and no other Appearance is contemporaneously entered, the Register shall notify the Party by mail of such withdrawal, and, unless the Party appears pro se or by an Attorney by a date fixed by the Court, any contested matter shall proceed as though that Party has defaulted and does not wish to be heard.

B. The Court upon Motion, or on its own Motion, may strike a Party from the record, if the Party no longer has an interest in the matter.

 

 

RULE 21. PLEADINGS - Copies to all Parties

Any Person filing a Pleading or correspondence with the Court shall forthwith furnish copies to all Attorneys, Pro Se Parties appearing of record, and to all Persons Beneficially Interested, unless excused by the Court for good cause shown. All such Pleadings shall contain a statement of compliance. This rule shall not apply to any Pleading for which orders of notice are issued and served upon the parties.

 

RULE 22. ATTORNEYS - Surety

No Attorney shall be surety in any case pending before the Court.

 

RULE 23. SPECIFICATIONS

In all contested matters, the Court or any Party may file a Motion for a filing of specifications which set forth the particulars for any claim or objection. Specifications shall be filed within such time as the Court may order. In those cases in which specifications have been filed, the hearing shall be limited to the grounds specified. Specifications may be amended by filing a Motion with the Court, which may be granted or denied upon such terms as the Court may deem reasonable.

 

RULES 24-26. [Reserved for Future Use]

 

RULE 27. THIRD PARTY PRACTICE

Whenever a third Party is, or may be, liable to a Respondent in any pending action for all or part of the Petitioner's claim against said Respondent or if said Respondent may have a claim against a third Party, depending upon the determination of an issue or issues in the pending action, the Respondent may bring an action against the third Party and, unless otherwise ordered on Motion of any Party, such action shall be consolidated for hearing with the pending action or, if justice requires, on such Motion said third Party may be made a Party to the pending action, for the purpose of being bound by the determination of any common issues; provided, however, that, except for good cause shown to prevent injustice and upon such terms as the Court may order, no such action shall be consolidated with or said third Party joined in said pending action, unless suit is brought against said third Party within sixty (60) days following the Return Day of said pending action.

A third Party against whom an action is brought in accordance with this Rule and a Petitioner against whom a counterclaim has been filed may, under the same circumstances prescribed by this Rule, use the same procedure with respect to another Person and the same time limitation shall apply, except that as to a Petitioner the sixty (60) days shall begin to run on the date the counterclaim is filed.

All existing rules and practices shall apply to actions commenced under this Rule.

This Rule shall not be construed to limit or abridge in any way the existing common law practice of joining Parties in pending actions whenever justice and convenience require, or the giving of notice to third Parties to come in and defend any pending action or be bound by the outcome thereof.

 

RULES 27-A to 28. [Reserved for Future Use]

 

RULE 29. ORDERS TO PLEAD

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.

 

RULES 30-32. [Reserved for Future Use]

 

RULE 33. COUNTERCLAIMS

No counterclaim shall be filed after thirty (30) days from the Return Day, except by leave of the Court and upon payment of costs; and when a counterclaim is filed, a copy shall be given to all Parties of record.

 

RULE 34. [Reserved for Future Use]

 

RULE 35. DISCOVERY

a. Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical or mental examinations; and requests for admission. Unless the Court orders otherwise, or unless otherwise provided in these Rules, the frequency of use of these methods is not limited.

b. Scope of Discovery. Unless otherwise limited by order of the Court in accordance with these Rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the Party seeking discovery or to the claim or defense of any other Party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought shall be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(2) Trial Preparation: Materials. Subject to the provisions of subdivision b(3) of this Rule, a Party may obtain discovery of documents and tangible things otherwise discoverable under subdivision b(1) of this Rule and prepared in anticipation of litigation or for trial by or for another Party or by or for that other Party's representative (including his or her Attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the Party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, or legal theories of an Attorney or other representative of a Party concerning the litigation.

A Party may obtain without the required showing a statement concerning the action or its subject matter previously made by that Party. Upon request, a Person not a Party may obtain without the required showing a statement concerning the action or its subject matter previously made by that Person. If the request is refused, the Person may move for a court order. The provisions of Rule 59 apply to the award of expenses incurred in relation to the Motion. For purposes of this paragraph, a statement previously made is (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the Person making it and contemporaneously recorded.

(3) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision b(1) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(a)(i) A Party may through interrogatories require any other Party to identify each Person, whom the other Party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the Court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision b(3)(c) of this Rule, concerning fees and expenses as the Court may deem appropriate.

(b) A Party may discover facts known or opinions held by an expert, who has been retained or specially employed by another Party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impracticable for the Party seeking discovery to obtain facts or opinions on the same subject by other means.

(c) Unless manifest injustice would result, (i) the Court shall require that the Party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions b(3)(a) and b(3)(b) of this rule, and (ii) with respect to discovery obtained under subdivision b(3)(a)(ii) of this Rule, the Court may require, and with respect to discovery obtained under subdivision b(3)(b), the Court shall require the Party seeking discovery to pay the other Party a fair portion of the fees and expenses reasonably incurred by the latter Party in obtaining facts and opinions from the expert.

c. Protective Orders. Upon Motion by a Party or by the Person from whom discovery is sought, and for good cause shown, the Court may make any order which justice requires to protect a Party or Person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the Party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the Court; (6) that a deposition after being sealed be opened only by order of the Court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the Parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court.

If the Motion for a protective order is denied in whole or in part, the Court may, on such terms and conditions as are just, order that any Party or Person provide or permit discovery. The provisions of Rule 59 apply to the award of expenses incurred in relation to the Motion.

d. Sequence and Timing of Discovery. Unless the Court upon Motion, for the convenience of Parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a Party is conducting discovery, whether by deposition or otherwise, shall

not operate to delay any other Party's discovery.

e. Supplementation of Responses. A Party, who has responded to a request for discovery with a response that was complete when made, is under no duty to supplement his or her response to include information thereafter acquired, except as follows:

1) A Party is under a duty seasonably to supplement his or her response with respect to any question directly addressed to (a) the identity and location of Persons having knowledge of discoverable matters, and (b) the identity of each Person expected to be called as an expert witness at trial, the subject matter on which he or she is expected to testify, and the substance of his or her testimony.

(2) A Party is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which (a) he or she knows that the response was incorrect when made, or (b) he or she knows that the response, though correct when made, is no longer true.

(3) A duty to supplement responses may be imposed by order of the Court, agreement of the Parties, or at any time prior to trial through new requests for supplementation of prior responses.

f. Disclosure of Expert Witnesses. Within thirty (30) days of a request by the opposing Party, or in accordance with an order of the Court following a discovery conference, a Party shall be required to supply a Disclosure of Expert Witness(es) as defined under Rule 702 of the Rules of Evidence, which document shall

(1) identify each Person, including any Party, whom the Party expects to call as an expert witness at trial,

(2) provide a brief summary of the expert's education and experience relevant to his area of expertise,

(3) state the subject matter on which the expert is expected to testify, and

(4) state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The Party shall attach to the disclosure a copy of any expert report relating to such expert.

 

RULE 36. WRITTEN INTERROGATORIES

Any Party may serve, by mail or delivery by hand, upon any other Party written interrogatories relating to any matters which may be inquired into under Rule 44.

Any Party propounding interrogatories shall provide the opponent with notice, substantially as set forth in the following form, of the obligation to answer said interrogatories within thirty days. The notice shall be at the top of the first page and printed in capital, typewritten letters or in ten-point, bold-face print. The form of the notice in substance shall be as follows:

These interrogatories are propounded in accordance with Probate Court Rule 36. You must answer each question separately and fully in writing and under oath. You must return the original and one copy of your answers within thirty (30) days of the date you received them to the Party or Attorney who served them upon you. If you object to any question, you must note your objection and state the reason therefor. If you fail to return your answers within thirty (30) days, the party who served them upon you may inform the Court, and the Court shall make such orders as justice requires, including the entry of a conditional default against you.

Interrogatories may be served at any time after service of the action.

  The Party serving the interrogatories shall furnish the answering Party with an original and two copies of the interrogatories. The interrogatories will be so arranged that after each separate question shall appear a blank space reasonably calculated to enable the answering Party to have his or her answer typed in. The parties may agree to transmit interrogatories electronically or by computer disk, enabling the answering party to provide answers directly after each separate question using the party's available word processing technology. In the event of such an agreement, the requirement of providing space between each question sufficient to manually insert answers is obviated.

Interrogatories shall be answered in writing under oath by the Party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, by an officer or agent who shall furnish all information available to the Party.

Each question shall be answered separately, fully and responsively in the space following the question, or, if insufficient, on additional pages or retyped pages repeating each interrogatory in full following by the answer, in such manner that the final document shall have each interrogatory immediately succeeded by the separate answer.

If, in any interrogatory, a copy of a paper or document is requested, the copy shall be annexed to the answer. If the copy is a report of an expert witness or a treating physician, it shall be the exact copy of the entire report or reports rendered by him or her, and the answering Party shall certify that the existence of other reports of that expert, either written or oral, are unknown to him or her and, if such become later known or available, he or she shall serve them promptly on the propounding Party but in any case not later than ten (10) days prior to pre-trial settlement conference.

The Party, who is served with interrogatories, shall serve his or her answers thereto, by mail or delivery in hand, upon the Party propounding them within thirty (30) days after service of such interrogatories, or within thirty (30) days after the return day, whichever date is later. The Parties may extend such time by written agreement.

The answers shall be served, together with the original and one (1) copy of the interrogatories upon the propounding Party. If copies of papers are annexed to answers, they need be annexed to only one set.

If a Party, upon whom interrogatories are served, objects to any questions propounded therein, he or she may either answer the question by stating it is improper, or he or she may, within twenty (20) days after the service of interrogatories upon him or her, move to strike any question, setting out the specific grounds of objection. He or she shall make timely answer, however, to all questions to which he or she does not object. Interrogatories, which are not stricken, shall be answered within such unexpired period of the thirty (30) days above provided as remained when the Motion was filed or within such time as the Court directs. The propounder of a question answered by a statement that it is improper may, within twenty (20) days after service of the answers upon him or her, move to compel an answer to the question, and, if the Motion is granted, the question shall be answered within such time as the Court directs.

If a Party, who is served with interrogatories requesting copies of papers, objects to the furnishing thereof, he or she shall, in lieu of complying with the request, either state with specificity the reasons for his or her noncompliance or invite the propounder to inspect and copy the papers at a designated time and place. The propounder of a request for a copy of a paper, which is not complied with, may, within twenty (20) days after the service of the answers upon him or her, file a Motion seeking compliance with the request or for other appropriate relief.

Motions to strike interrogatories or to compel more specific answers thereto shall include a statement summarizing the nature of the action and shall have annexed thereto the text of the questions and answers, if any, objected to.

If the Court finds that a Motion, which is made pursuant to this Rule, was made frivolously or for the purpose of delay or was necessitated by action of the adverse Party that was frivolous or taken for the purpose of delay, the Court may order the offending Party to pay the amount of reasonable expenses, including Attorney's fees, incurred by the other Party in making or resisting the Motion.

A Party may file more than one (1) set of interrogatories to an adverse Party, but the total number of interrogatories shall not exceed fifty (50), unless the Court otherwise orders for good cause shown after the proposed additional interrogatories have been filed. In determining what constitutes an interrogatory for the purpose of applying this limitation in number, it is intended that each question be counted separately, whether or not it is subsidiary or incidental to or dependent upon or included in another question, and however the questions may be grouped, combined or arranged.

The adverse Party shall have the same privileges in answering written interrogatories as the deponent in the taking of a deposition.

If a Party, who has furnished answers to interrogatories, thereafter obtains information which renders such answers incomplete or inaccurate, amended answers shall be served in accordance with Rule 35E.

Interrogatories and answers may be used at the trial to the same extent as depositions. If less than all of the interrogatories and answers thereto are marked or read into evidence by a Party, an adverse Party may read into evidence any other of the interrogatories and answers or parts thereof necessary for a fair understanding of the parts read into evidence.

Neither the interrogatories nor the answers need be filed with the Register unless the Court so directs at the pretrial settlement conference or at trial.

If the Party, upon whom interrogatories have been served, shall fail to answer said interrogatories within thirty (30) days, or any enlarged period, unless written objection to the answering of said interrogatories is filed within that period, said failure shall result in a conditional default being entered by the Register upon Motion being filed indicating such failure to answer. The Party failing to answer shall receive notice of the conditional default. The conditional default shall be vacated if the defaulted Party answers the interrogatories within ten (10) days of receiving notice thereof and moves to strike the conditional default. If the defaulted Party fails to move to strike the conditional default within ten (10) days of receiving notice thereof, the adverse Party may move to have a default judgment entered and damages assessed in connection therewith. Unless the claim is fully liquidated and not subject to dispute as to amount or remedy, the Court shall have a hearing on damages.

 

RULE 36-A. WRITTEN INTERROGATORIES - Objections

When objections are made to interrogatories or requests for admissions, before there is any court hearing regarding said objections, counsel for the Parties shall attempt in good faith to settle the objections by agreement. It shall be the responsibility of counsel for the objecting Party to initiate such attempt and to notify the Register if the objections are settled by agreement.

If, following such conference, counsel are unable to settle objections, counsel for the objecting Party shall notify the Register and request a hearing on such objections as remain unsettled.

Where an objection to an interrogatory has been withdrawn by agreement of counsel or has been overruled by the Court, the answer to such interrogatory will be served within ten (10) days thereafter.

 

RULE 37. [Reserved for Future Use]

 

RULE 38. DEPOSITIONS - Notice

No notice to the adverse Party of the taking of depositions shall be deemed reasonable unless served at least three (3) days, exclusive of the day of service and the day of the deposition, before the day on which they are to be taken. Provided, however, that twenty (20) days' notice shall be deemed reasonable in all cases, unless otherwise ordered by the Court. No deposition shall be taken within twenty (20) days after service of the Petition, or other Pleading, except by agreement or by permission of the Court for good cause shown.

 

RULE 39. DEPOSITIONS - Stenographer

Every notice of a deposition to be taken within the State shall contain the name of the stenographer or the stenographer’s firm proposed to record the testimony.

 

RULE 40. DEPOSITIONS - Delivery of Notice

When a statute requires notice of the taking of depositions to be given to the adverse Party, it may be given to such Party or to the Party's Attorney of record. In cases where the action is in the name of a nominal Party and the Petition, Motion, Pleading, or docket discloses the real Party in interest, notice shall be given either to the real Party in interest or to the Attorney of record. Notices given pursuant to this Rule may be given by mail or by service in hand.

 

RULE 41. DEPOSITIONS - Procedure

The interrogatories shall be asked by the Pro Se Parties or Attorneys, and the interrogatories and answers shall be taken in shorthand or other form of verbatim reporting approved by the Court and transcribed by a competent stenographer agreed upon by the Pro Se Parties or Attorneys present at the deposition. In the absence of such agreement, the stenographer shall be designated by the Court. Failure to object in writing to a stenographer in advance of the taking of a deposition shall be deemed agreement to the stenographer recording the testimony.

No deposition, as transcribed, shall be changed or altered, but any alleged errors may be set forth in a separate document attached to the original and copies.

The magistrate shall cause to be noted any objection to any interrogatory or answer without deciding its competency. If complaint is made of interference with any witness, the magistrate shall cause such complaint to be noted and shall certify the correctness or incorrectness thereof in the caption.

Upon Motion, the Court may order the filing of depositions, and, upon failure to comply with such order, the Court may take such action as justice may require.

 

RULE 42. DEPOSITIONS - Out of State

The signature of a Person outside the State, acting as an officer legally empowered to take depositions or affidavits, with his or her seal affixed, where one is required, to the certificate of an oath administered by him or her in the taking of affidavits or depositions, shall be prima facie evidence of his or her authority so to act.

 

RULE 43. [Reserved for Future Use]

 

RULE 44. DEPOSITIONS AND INTERROGATORIES - Refusal to Answer

The deponent, on deposition or on written interrogatory, shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.

If any deponent refuses to answer any question propounded on deposition, or any Party fails or refuses to answer any written interrogatory authorized by these Rules, or fails to comply within twenty (20) days after written request to, the Party propounding the question may, upon notice to all Persons affected thereby, apply by Motion to the Court for an order compelling an answer. If the Motion is granted, and if the Court finds that the refusal was without substantial justification or was frivolous or unreasonable, the Court may, and ordinarily will, require the deponent and the Party or Attorney advising the refusal, or any of them, to pay the examining or requesting Party the reasonable expenses incurred in obtaining the order, including reasonable counsel fees.

If the Motion is denied and if the Court finds that the Motion was made without substantial justification or was frivolous or unreasonable, the Court may, and ordinarily will, require the examining Party or the Attorney advising the Motion, or both of them, to pay to the opposing Party or witness the reasonable expenses incurred in opposing the Motion, including reasonable counsel fees.

 

RULE 45. USE OF VIDEOTAPE DEPOSITIONS - Procedure

The Court, within its discretion, may allow the use of videotape depositions that have been taken by agreement. If the Parties cannot reach such an agreement, the Court may, in its discretion, order the taking and/or use of such depositions. At the commencement of the videotape deposition, the Pro Se Party or Attorney representing the Party taking the deposition shall state whose deposition it is, for what case it is being taken, where it is being taken, who will be asking the questions, and the date and the time of the deposition. Care shall be taken to have the witnesses speak slowly and distinctly and that papers be readily available for reference without undue delay and unnecessary noise. All persons attending the deposition shall comport themselves at all times as if they were actually in the courtroom.

If any problem arising as to the admissibility or inadmissibility of evidence, this should be handled in the same manner as written depositions.

 

RULE 45-A. USE OF VIDEOTAPE DEPOSITIONS - Procedure for Objections

A Party objecting to a question asked of, or an answer given by, a witness whose testimony is being taken by videotape shall provide the Court, either at the pretrial conference or if no pretrial conference ten (10) days before trial, with a transcript of the videotape proceedings that is sufficient to enable the Court to act upon the objection, or the objection shall be deemed waived.

The provisions of Rule 41 with respect to objections to testimony or evidence shall also apply to a videotape deposition.

 

RULE 46. CONTINUANCES - Unavailability of a Material Witness

No Motion for a continuance based on the unavailability of material testimony shall be granted, unless supported by an affidavit stating the name of the witness, if known, whose testimony is unavailable, the particular facts the witness is expected to prove with the grounds of such expectation, and what has been done to procure his or her attendance or deposition, so that the Court may determine whether due diligence has been exercised for that purpose. No action shall be continued on such Motion if the adverse Party will agree that the affidavit shall be received and considered as evidence in like manner as if the witness were present and had testified to the facts therein stated, and such agreement shall be in writing at the foot of the affidavit and signed by the Pro Se Party or Attorney.

 

RULE 47. CONTINUANCES - Unavailability of Material Evidence

Rule 46 shall apply, with necessary changes, when the Motion is grounded on the unavailability of any material document, paper, or other evidence of like nature.

 

RULE 48. CONTINUANCES

Continuances may be granted upon such terms as the Court may order.

 

RULE 49. CONTINUANCES - Motions

All Motions for continuance shall be made in writing setting forth the grounds relied on and shall be signed and dated by the Pro Se Party or Attorney. Other Parties wishing to join in any such Motion shall also do so in writing.

Motions filed by Attorneys shall contain a statement that the client has been notified of the reasons for the continuance, has assented thereto either orally or in writing, and has been forwarded a copy of the Motion.

All such Motions shall be filed within ten (10) days from the date of the mailing of the notice of a hearing or trial. Any such Motion that is filed after the (10) days from the date of the mailing of such notice shall not be considered by the Court, except for good cause shown.

 

RULE 49-A. CONTINUANCES - Scheduling Conflict

Where a trial has been scheduled in one case prior to the scheduling of another matter in another Court, or elsewhere, where an Attorney or Party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and dated except as follows:

(a) A subsequently scheduled case involving trial by jury in a District, Superior, or Federal District Court, or argument before the Supreme Court.

(b) Unusual circumstances causing the respective Courts to agree that an order of precedence other than the above shall take place.

 

RULE 50. CONTINUANCES - Court Approval Necessary

All actions shall be in order for hearing or trial as scheduled and, notwithstanding agreements of Parties, shall not be continued except for good cause shown and upon such terms as the Court may order.

 

RULE 50-A. RECUSAL

All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written Motion for recusal and filed promptly with the Court. Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the Court. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the trial judge shall make a record of the request, the Court's findings, and its order.

 

RULE 51. SETTLEMENTS - Docket Markings

Whenever a Pro Se Party or Attorney informs the Register that a particular matter has been settled and that agreements will be filed, the Register shall forthwith notify by mail the parties of record or their Attorneys of such notice of settlement. If the settlement agreements are not filed within thirty (30) days after the mailing of such notice, the Register shall summon the Parties to a hearing to determine what court action shall be taken.

 

RULE 52. CONTINUANCES - Extension of Return Day

If service of process cannot be completed within the time set forth in the orders of notice, upon written Motion, the Court may extend the Return Day and the date for completion of service upon such terms as justice may require.

 

RULE 53. [Reserved for Future Use]

 

RULE 54. ADMISSION OF RELEVANT FACTS, GENUINENESS OF DOCUMENTS AND SIGNATURES - Procedure

Any Party desiring to obtain admission of the signature on or the genuineness of any relevant document or of any relevant facts which he or she believes not to be in dispute, may file a request therefor with the Register, accompanied by any original documents involved, and deliver a copy of such request and documents to the adverse Pro Se Party or Attorney. Each of the matters, of which an admission is requested, shall be deemed admitted, unless within thirty (30) days after such delivery the adverse Party files with the Register and delivers a copy thereof to the Pro Se Party or Attorney requesting such admission, either a sworn denial thereof or a written objection on the ground of privilege or that it is otherwise improper.

If objection is made to part of a request, the remainder shall be answered within the time limit, and when good faith requires that a Party qualify his or her answer or deny only part of a matter, he or she shall specify so much of it as is true and qualify or deny the remainder.

Any Party who without good reason or in bad faith denies under this rule any signature or fact which has been requested and which is thereafter proved, or who without good reason or in bad faith requests such admission under this rule and thereafter fails to prove it, may, on Motion of the other Party, be ordered to pay the reasonable expenses, including counsel fees, incurred by such other Party in proving the signature or fact or in denying the request, as the case may be.

 

RULE 55. [Reserved for Future Use]

 

RULE 56. WITHDRAWING PAPERS

Papers shall not be withdrawn from the files except by permission of the Court and upon a receipt therefor being filed.

 

RULE 57. MOTIONS - Requirements

The Court will not hear any Motion grounded upon facts, unless they are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the Parties or their Attorneys; and the same rule shall be applied as to all facts relied on in opposing any Motion.

 

RULE 57-A. MOTIONS - Certification of Attempt to Obtain Concurrence

Any Pro Se Party or Attorney filing a Motion shall certify to the Court that such Pro Se Party or Attorney has made a good faith attempt to obtain concurrence in the relief sought, except in the case of dispositive Motions, Motions for contempt or sanctions, or comparable Motions where it can be reasonably assumed that the Pro Se Party or Attorney will be unable to obtain concurrence.

 

RULE 58. MOTIONS - Objections and Oral Argument

The Court shall hold any Motion for ten (10) days before acting thereon, unless assented to by all Parties. The Court may act on a Motion on the basis of the Pleadings and record before it. Any objection to a Motion shall be filed within ten (10) days of the filing of such Motion. Failure to object to the Motion shall not, in and of itself, be grounds for granting the Motion.

No oral argument or evidentiary hearing shall be scheduled unless requested in writing by the Pro Se Party or Attorney within ten (10) days after the filing of the Motion or objection thereto. The request for oral argument or evidentiary hearing shall contain the reasons why the oral argument or evidentiary hearing will further assist the Court in determining the pending issue(s).

Upon request of a Pro Se Party or Attorney, Motions to dismiss shall be heard as soon as practicable, and no later than thirty (30) days prior to the date scheduled for trial on the merits, unless the Court shall otherwise order. All necessary evidence shall be presented at such hearing.

 

RULE 58-A. MOTIONS FOR SUMMARY JUDGMENT

In accordance with RSA 547:11-f, as amended, the following procedures shall govern Motions for summary judgment in the Probate Court. Motions for summary judgment shall be filed, defended and disposed of in accordance with the provisions of RSA 491:8-a, as amended, which is incorporated herein. Such Motions and responses thereto shall provide specific page, paragraph, and line references to any pleadings, exhibits, answers to interrogatories, depositions, admissions, and affidavits filed with the Court in support or opposition to the Motion for summary judgment. Only such materials as are essential and specifically cited and referenced in the Motion for summary judgment, responses, and supporting memoranda shall be filed with the Court. In addition, except by permission of the Court received in advance, no such Motion, response, or supporting memorandum of law shall exceed twenty (20) double-spaced pages. The purpose of this rule is to avoid unnecessary and duplicative filing of materials with the Court. Excerpts of documents and discovery materials shall be used whenever possible.

Where a plaintiff successfully moves for summary judgment on the issue of liability or a defendant concedes liability, the Parties must provide the Court with a statement of agreed facts sufficient to explain the case and place it in a proper context so that the Court might more readily understand what it will be hearing in the remaining portion of the trial. Absent such an agreement on facts, the matters of liability and damages cannot be severed.

If it appears to the Court at any time that any Motion for summary judgment or affidavit has not been presented in good faith or has been presented solely for the purpose of delay, the Court shall forthwith order the Party and/or the Attorney presenting it to pay to the other Party the amount of the reasonable expenses which the filing of the Motion or affidavit caused the Party to incur, including reasonable attorney's fees. Such additional sanctions may be imposed as justice may require.

 

RULE 59. PLEADINGS - Frivolous Conduct

The Court may assess reasonable costs, including reasonable counsel fees, against any Party or Attorney whose frivolous or unreasonable conduct makes necessary the filing of any Pleading or hearing thereon.

 

RULE 59-A. MOTIONS FOR RECONSIDERATION

(1) A Motion for reconsideration or other post-decision relief shall be filed within ten (10) days of the date on the Register's written notice of the order or decision, which shall be mailed by the Register on the date of the notice. The Motion shall state, with particularity, points of law or fact that the Court has overlooked or misapprehended and shall contain such argument in support of the Motion as the movant desires to present; but the Motion shall not exceed ten (10) pages. A hearing on the Motion shall not be permitted except by order of the Court.

(2) No answer to a Motion for reconsideration or other post-decision relief shall be required unless ordered by the Court, but any answer or objection must be filed within ten (10) days after the filing of the Motion.

(3) If a Motion for reconsideration or other post-decision relief is granted, the Court may revise its order or take other appropriate action without rehearing or may schedule a further hearing.

(4) The filing of a Motion for reconsideration or other post-decision relief shall not stay any order of the Court unless, upon specific written request, the Court has ordered such a stay.

 

RULE 60. HEARINGS - Contested Matters

In any contested matter, the Register shall give at least ten (10) days notice of any hearing or other proceeding before the Court to the Parties, Persons Beneficially Interested, or to their Attorneys, unless it appears that justice or a specific statute requires otherwise. Such notice, however, may be waived in writing by any responding Party, Persons Beneficially Interested, or Attorney. An appearance in person or through an Attorney and participation in the hearing shall be deemed a waiver of notice.

 

RULE 61. NOTICE OF DECISIONS - Uncontested Matters

Upon the entry of a decision on any uncontested Motion or other Pleading, the Register shall forthwith send a notice of decision to the Attorney for the moving Party or the moving Party, if not represented by counsel, and to the Attorney for the Fiduciary or the Fiduciary, if not represented by counsel.

Upon the entry of a decision on any uncontested account or inventory, the Register shall forthwith send a notice of decision to the Attorney for the Fiduciary or the Fiduciary, if not represented by counsel.

RULE 61-A. NOTICE OF DECISIONS - Contested Matters

Upon the entry of a decision on any contested Petition, Motion, account, inventory, or other Pleading, the Register shall forthwith send a notice of the decision to all Attorneys appearing of record, Pro Se Parties, and Persons Beneficially Interested. A copy of the notice of decision shall be made a part of the records by the Register.

 

RULE 62. STRUCTURING CONFERENCES AND PRETRIAL PROCEDURES

The Court shall schedule a structuring conference for each contested case entered on the docket. The structuring conference shall occur between sixty (60) and one hundred twenty (120) days after the Return Day or at such other time as the Court may order.

The Pro Se Party or Attorney shall attend the structuring conference and shall be prepared and authorized to discuss the issues and set schedules for discovery and other case preparation, including additional conferences with the Court, Alternative Dispute Resolution, settlement or trial.

Ten (10) days prior to the structuring conference all Pro Se Parties or Attorneys shall file summary statements necessary to support their respective claims, defenses or counterclaims. This summary statement shall be comprehensive and made in good faith, but shall not be admissible at trial. The purpose of this summary statement is to apprise the court of the nature of the claims, defenses, and legal issues likely to arise.

At or immediately after the structuring conference, the Court shall issue a structuring conference order which may include discovery deadlines and dates for an additional conference with the Court, filing of pretrial statements, filing of Motions, filing of requests for findings of fact, rulings of law and memoranda of law, trial management conference, and trial.

If a pretrial statement is ordered it shall include, by numbered paragraphs, a detailed, comprehensive, and good faith statement, setting forth, if applicable:

1. Uncontested issues of fact.

2. Contested issues of fact.

3. Applicable law.

4. Disputed issues of law.

5. Specific claims, objections or position of the contestant.

6. Specific defenses.

7. A list of all exhibits to be offered in the case of each Party. The Pro Se Parties or Attorneys shall bring all exhibits or exact copies to the pretrial conference.

8. A list of all depositions to be read into evidence.

9. A waiver of claims, denials or objections.

10. A list of the names and addresses of all witnesses who may be called.

11. Whether there will be a request for a view and, if so, who shall pay the cost in the first instance.

12. The names and addresses of the trial Attorneys.

Except for good cause shown, only witnesses listed in the pretrial statement will be allowed to testify and only exhibits, so listed, will be received in evidence.

In every case scheduled for trial, the Court may schedule such pretrial conferences as it deems necessary, at which counsel shall have their clients present or available for contact by telephone and shall be prepared to discuss and effectuate settlement and, if necessary, conduct of the trial.

Failure to comply with this Rule shall constitute grounds for sanctions, in the discretion of the Court.

 

RULE 63. STANDING PRETRIAL ORDERS

(a) Copies of all medical reports relating to the litigation, in the possession of the Parties, shall be furnished to opposing counsel on receipt of the same.

(b) X-rays and hospital records (which are certified as being complete records) if otherwise admissible and competent may be introduced without calling the custodian or technician. Any Party shall have the right to procure from opposing counsel an authorization to examine and obtain copies of hospital records and X-rays involved in litigation.

(c) All experts, including doctors and law enforcement personnel, who are to testify at trial, shall be advised by counsel to bring their original records and notes to court with them.

(d) All Fiduciaries shall be prepared to present the originals of all documents or other papers at issue in any hearing.

(e) The written reports of the New Hampshire Division for Children, Youth and Families or of any guardian ad litem shall be submitted not later than at the commencement of the hearing for which it is submitted.

 

RULE 63-A. PROCEDURE DURING TRIAL - Offers of Proof

A probate judge or probate master may receive evidence by an Offer of Proof, whenever appropriate and within the discretion of the Court. Whenever a Court exercises discretion to receive evidence by an Offer of Proof, the Court shall inform all Parties that by making an Offer of Proof, the proffering Party represents to the Court that a witness is present in the courtroom and can testify under oath in accordance with the Offer of Proof. Before receiving evidence by an Offer of Proof, the Court shall inform all Parties of the following procedures:

An Offer of Proof as to the testimony of a witness shall be received only if that witness is present in the courtroom at the time of the Offer.

Any witness whose testimony is presented by an Offer of Proof may be cross-examined by the opposing party, subject to the usual authority of the Court.

If a witness' credibility is challenged, or for any other reason within the discretion of the Court, the Court may question the witness or require that the witness' proof be presented from the witness stand.

An Attorney or Pro Se Party making an Offer of Proof represents to the Court that the Attorney or Pro Se Party has examined the witness or document that is the subject of the Offer. Through that examination, the Attorney reasonably believes, taking into account all that the Attorney or Pro Se Party knows about the case, that the evidence is not false; the evidence is admissible through a witness who can testify under oath to establish the purpose for which it is offered; and the evidence is not offered for a frivolous purpose.

In an ex parte proceeding, an Attorney making an Offer of Proof also represents to the Court that the Offer of Proof is accompanied by a statement under oath of all material facts known to the Attorney to enable the Court to make an informed decision as to the issues presented.

In proceedings where the Rules of Evidence either do not apply or are relaxed within the discretion of the Court, evidence may be received by an Offer of Proof without the presence of the witness in Court if that same evidence could be received by the Court without the necessity of a witness' testimony under oath to introduce the evidence.

 

RULE 64. PROCEDURE DURING TRIAL - Copies to Court

The Attorney or Pro Se Party shall seasonably furnish for the convenience of the Court copies of all exhibits offered in evidence.

 

RULE 64-A. [Reserved for Future Use]

 

RULE 65. PROCEDURE DURING TRIAL - Examination of Witness

Only one Attorney for each Party, or if Pro Se, only the Pro Se Party shall be permitted to examine a witness.

 

RULE 66. PROCEDURE DURING TRIAL - Objections

When stating an objection, the objecting Party shall state only the basis of the objection (e.g., "leading," "non-responsive," or "hearsay"), provided that upon request, counsel shall be permitted a reasonable opportunity to present additional argument or grounds for the objection.

 

RULE 67. PROCEDURE DURING TRIAL - Witness Re-examination

Unless permitted by the Court, after cross-examination, a witness may not be re-examined by the Party calling the witness, except as may be necessary to explain answers on cross-examination, and except as to new matters elicited by cross-examination regarding which the witness has not previously been examined.

 

RULE 68. PROCEDURE DURING TRIAL - Criminal Record

If a Party plans to use or refer to any criminal record, for the purpose of attacking or affecting the credibility of a witness, the Pro Se Party or Attorney shall first furnish a copy of same to the opposing Party or Attorney, and then obtain a ruling from the Court as to whether the witness may be questioned with regard to any conviction for credibility purposes.

Evidence of a conviction under this rule shall not be admissible unless there is introduced a certified record of the judgment of conviction indicating that the witness was represented by counsel at the time of the conviction unless counsel was waived.

 

RULE 69. PROCEDURE DURING TRIAL - Recall of Witness

After a witness has been dismissed from the stand, the witness shall not be recalled by the same Party, without permission of the Court.

 

RULE 70. PROCEDURE DURING TRIAL - Presentation of Case

In all trials, the Petitioner shall put in the whole case before resting and shall not thereafter, except by permission of the Court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the Respondent shall, before resting, put in the whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.

 

RULE 71. PROCEDURE DURING TRIAL - Opening and Closing Statements

Opening and closing statements may be allowed within the discretion of the Court. Opening statements shall not be argumentative and shall be no longer than fifteen (15) minutes each, and closing statements shall be limited to thirty (30) minutes each, unless otherwise permitted by the Court.

 

RULE 72. PROCEDURE DURING TRIAL - Requests and Memoranda

All requests for findings of fact and rulings of law and written memoranda of law shall be submitted no later than a time directed by the Court at the structuring conference. If there is no time set forth in the order at the structuring conference, then all requests for findings of fact and rulings of law and memoranda of law must be submitted to the Court no later than the close of the evidence. Nevertheless, it is within the Court's discretion to allow requests and memoranda to be submitted to the Court at a later time.

RULE 72-A. PROCEDURE AFTER TRIAL - Decisions

In the absence of other express court order, rule, or statutory provision, justices and masters of the Probate Court shall file with their respective Registers decisions in all pending matters within sixty (60) days of the final date of their submission to them for determinations. The Registers shall keep a list of all decisions pending longer than sixty (60) days. Justices, masters and Registers shall report to the Administrative Justice all decisions pending for more than sixty (60) days. Upon written request of a justice or master, the Administrative Justice may extend the deadline.

 

RULE 73. [Reserved for Future Use]

 

RULE 74. PROCEDURE AFTER TRIAL - Final Judgment

In all actions in which an order or decree is entered or in which an action is dismissed, or in which any Motion is acted upon after order or decree, all appeals shall be deemed waived and judgment shall become final as follows in subparagraphs (a) or (b), unless the Court has otherwise ordered, unless a notice of an appeal has been filed with the Superior Court pursuant to RSA 547:11-d, or unless a notice of appeal has been filed with the Supreme Court pursuant to its Rule 7:

(a) where no Motion, or an untimely filed Motion, has been filed after order or decree, on the thirty-first day from the date on the Register's written notice that the Court has made such order, decree or dismissal; or

(b) where a timely filed Motion has been filed after order, decree or dismissal, on the thirty-first day from the date on the Register's written notice of the Court's action on the Motion.

The Court shall not grant any requests for extensions of time to file an appeal document in the Supreme Court or requests for late entry of an appeal document in the Supreme Court; such requests shall be filed with the Supreme Court. See Supreme Court Rule 21(6).

 

RULE 75. PROCEDURE AFTER DEFAULT

In all defaulted cases, judgment may be entered at such time and after any hearing that the Court may order.

 

RULE 76. APPEALS TO SUPERIOR COURT

Appeals to Superior Court shall be in accordance with RSA 547:11-d.

 

RULE 77. [Reserved for Future Use]

 

RULE 77-A. EXCEPTIONS UNNECESSARY

Formal exceptions to non-evidentiary rulings or orders of the Court are unnecessary, and for all purposes for which an exception has heretofore been necessary it is sufficient that a Party, at or before the time the ruling or order of the Court is made or sought, makes known to the Court by Pleading or orally on the record the action which the Party desires the Court to take or the Party’s objection to the action requested by a Party opponent, provided that in each instance the Party has informed the Court of the specific factual or legal basis for the Party's position. Objections to evidentiary rulings are governed by N. H. R. Ev. 103.

 

RULE 77-B. [Reserved for Future Use]

 

RULE 78. PHOTOGRAPHING, RECORDING AND BROADCASTING

(a) Except by order of the Court, no Person shall take any photograph, make any recording, or make any broadcast by radio, television or other means in the course of any proceeding in the courtroom.

(b) Official court reporters and authorized recorders are not prohibited by section (a) of this rule from making voice recordings for the sole purpose of discharging their official duties.

(c) A Party may request that any probate proceedings be recorded. Such request shall be made in writing to the Court no later than ten (10) days prior to the proceeding. Any denial of a request for recording shall include the reason(s) supporting the denial. A request for recording, not timely filed, may be granted within the discretion of the Court.

(d) For all purposes, including Supreme Court Rules 13-15, the official record of a recorded probate court proceeding shall be the printed transcript of the proceeding as prepared by an approved transcriber or stenographer at the request of the Register.

 

RULE 78-A. TRANSCRIPTS

(a) Transcripts for Appeal. The Party(ies) shall advance the estimated cost of the transcript as ordered by the Court. Upon receipt of the required advance payment, the Register shall direct the transcriber or stenographer to proceed with the transcription.

(b) Request for Excerpts. During the course of a trial, either party may request to have parts of the evidence transcribed for use during the trial. The furnishing of a transcript or excerpts from the evidence is to be done under the direction of the probate judge or probate master.

(c) Transcripts Required for Other Than Appeal. In the event there is a Motion for a transcript of a proceeding, either partial or complete, by a Party to the proceeding or other interested Persons, for purposes other than appeal, that purpose shall be stated in the Motion.

When a Motion for transcript is granted, any other Party desiring a copy shall notify the Court within ten (10) days of the Register's notice. After the ten-day period has elapsed, the Register shall proceed in the usual manner to compute the estimated cost of the transcript and require the Party or Parties to advance this amount. Upon receipt of the required advance payment, the Register shall direct the transcriber or stenographer to proceed with the transcription.

When completed, if the transcriber or stenographer's bill exceeds the estimated payment, the Register shall collect the additional cost before releasing the transcript(s). The original shall be retained by the Register.

(d) Transcript Order by Court, Master or Referee. If a complete or partial transcript of any proceeding is ordered by a probate judge or probate master, the transcriber or stenographer shall prepare an original and such copies as ordered. The Register's office shall provide the probate judge or probate master with a copy and retain the original and any other copies. Neither, the original or any copy shall be defaced in any way so that they may be used in the event of subsequent appeal.

(e) Special Circumstances. Any and all of the outlined procedures for preparation of transcripts may be amended at the discretion of the Court in special circumstances; e.g., when there is a limited time available for processing an appeal, etc.

 

RULE 78-B. DUPLICATION OF AUDIO TAPES

(a) Upon receipt of a Motion to the Court for a duplicate audio tape of a recorded probate court proceeding, the probate judge or probate master who presided over the proceeding shall either (1) direct the Register to release a copy of the audio tape to the Person, or (2) deny the Motion. Any denial of a Motion for a duplicate audio tape shall include a statement of reason(s) supporting the denial.

(b) In the case of any probate court proceeding made CONFIDENTIAL by New Hampshire statute, case law, or court order, no duplicate audio tape shall be released, except to a Party to the proceeding or to an Attorney for a Party to the proceeding. In such cases, the Party or Attorney shall sign a "Receipt for Duplicate Audio Tape of Confidential Probate Proceeding."

STATE OF NEW HAMPSHIRE

__________________ COUNTY PROBATE COURT

IN RE: __________________________

DOCKET NUMBER:_____________

RECEIPT for DUPLICATE AUDIO TAPE of

CONFIDENTIAL PROBATE PROCEEDING

I acknowledge receipt of a duplicate audio tape of a CONFIDENTIAL probate proceeding in this case.

As a condition of the receipt of this duplicate audio tape, I shall take all reasonable actions to ensure that the CONFIDENTIALITY of the proceeding, including the CONFIDENTIALITY of this audio tape, is preserved. Those actions shall include the following:

I shall not reproduce this audio tape in any form.

I shall not release this audio tape, or a copy of this audio tape, to anyone.

I shall not allow anyone to listen to this audio tape, except for a Party to this proceeding, Attorney for a Party to this proceeding, or a Person with a court order authorization to listen to this audio tape.

DATE:_________________ SIGNATURE________________________

 

(c) The fee for each duplicate audio tape shall be $25.00, payable to the Register.

 

RULE 79. INTERLOCUTORY TRANSFERS AND APPEALS TO THE SUPREME COURT - Procedure

Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, the moving Party shall file with the Register the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 or Supreme Court Rule 9, and after the Court has signed the statement, the moving Party shall file the number of copies required by the rules of the Supreme Court with the clerk thereof.

After a decision on the merits, all appeals shall be deemed waived and judgment shall become final on the thirty-first day from the date on the Register’s written notice of the decision, unless the party aggrieved enters a notice of appeal in the Supreme Court within thirty (30) days from the date on the Register’s notice, pursuant to Supreme Court Rule 7, and files the number of copies required by the rules of the Supreme Court with the clerk thereof. The definition of "decision on the merits" includes decisions on Motions made after an order, opinion, or decree. Timely filed post-trial Motions stay the running of the appeal period.

Whenever any notice of appeal is filed pursuant to the provisions of RSA 567-A, the appealing Party shall give notice thereof forthwith to all Parties or to their Attorneys in accordance with rules of the Supreme Court.

 

RULE 80. INTERLOCUTORY TRANSFERS AND APPEALS TO THE SUPREME COURT - Transcripts

When the Supreme Court orders that a transcript be prepared, if a question of law is transferred by appeal, the appealing Party shall advance the estimated cost of the transfer, and the expense of such transfer shall be taxed in the appealing Party's bill of costs if the appealing Party shall prevail; but if transferred by virtue of an agreement signed by the Parties or otherwise without ruling, such expense shall be advanced as the Court, within its discretion, may rule that justice requires.

The transcriber or stenographer shall transcribe the original and two copies of all the oral proceedings except opening statements and arguments, unless otherwise ordered by the Supreme Court.

After determination of what is to be transcribed as provided by these rules and the Supreme Court rules, the Clerk of the Supreme Court shall notify the Party liable therefor of the estimated cost to that Party at the prevailing per page rate for the original and each copy thereof, and shall notify that Party to pay the estimated cost to the Register within fifteen (15) days from the date of the notice; otherwise, that Party’s appeal shall be deemed waived; or if it is an agreed case or if otherwise transferred without ruling, the action shall be dismissed unless the other Party will advance such expense within fifteen (15) days after notice, in which event the other Party may tax it as costs if the other Party prevails. Upon receipt of the required advance payment, the Register shall notify the transcriber or stenographer to proceed with the transcription.

The oral proceedings of the trial shall not be transcribed by the transcriber or stenographer in advance of decree unless the Court rules that justice so requires. In the event that such prior transcription is ordered, the transcriber or stenographer shall prepare not less than the typewritten original and two copies thereof and the Court shall determine the apportionment of the cost thereof.

 

RULE 81. MATTERS BEFORE MASTERS AND REFEREES

Retired Judges sitting as referees shall have the powers set forth in RSA 547:19-c and masters shall have the powers set forth in RSA 547:37.

 

RULE 82. MATTERS BEFORE MASTERS AND REFEREES - Non-compliance

If either Party neglects or refuses to appear or to render an account, or produce any books and papers or answer on oath proper interrogatories, the master or referee shall certify the fact to the Court, and the Court shall take such action as justice may require.

 

RULE 83. MATTERS BEFORE MASTERS AND REFEREES - Amendments and Assessment of Costs

In actions sent to a master or referee, the hearing shall proceed according to the rules of law or equity, as the case may be, and the practice in Court. The master or referee may allow amendments in the same manner and to the same extent as if the action were tried in Court; and, when amendments are so allowed, the master or referee shall report such facts to the Court. The master or referee shall certify the costs of each Party in the hearing.

 

RULE 84. MATTERS BEFORE MASTERS AND REFEREES - Approval by Probate Judge

The report of a master or referee to whom a matter has been referred will be presented to the probate judge for approval and order. The decision thereafter shall be sent in accordance with Rule 61 and the Parties shall preserve their rights as though the case were originally heard before a probate judge.

 

RULE 85. MATTERS BEFORE MASTERS AND REFEREES - Questions of Law Reported

If any question of law shall arise at the hearing before the master or referee, that question shall, at the request of either Party, appear in the master or referee's report, together with a ruling thereon.

 

RULE 85-A. [Reserved for Future Use]

 

RULE 86. [Reserved for Future Use]

 

RULE 87. TAXATION OF COSTS

(a) Costs. Costs shall be allowed as of course to the prevailing Party as provided by these rules, unless otherwise provided by statute or the Court otherwise directs.

(b) Taxation of Costs. The Party claiming costs shall file with the Register an itemized, verified bill of costs. The Register shall revise the verified bill of costs to conform to these rules. Allowable costs are set forth in subparagraph (c). If a Party objects to any costs allowed or not allowed by the Register, such Party may by Motion request that the Court review the action of the Register. Any Party aggrieved by the Court's order concerning costs may appeal therefrom within thirty (30) days from the date of notice of such order, regardless of whether an appeal concerning the underlying judgment is sought.

(c) Allowable Costs. The following costs shall be allowed to the prevailing Party: Court fees, fees for service of process, witness fees, expense of view, cost of transcripts, and such other costs as may be provided by law. The Court, in its discretion, may allow the stenographic cost of an original transcript of a deposition, plus one copy, including the cost of videotaping, and may allow other costs including, but not limited to, actual costs of expert witnesses, if the costs were reasonably necessary to the litigation.

 

RULE 88. FEES AND EXPENSES - Fiduciary and Attorney

Fees and expenses of Fiduciaries and Attorneys shall be subject to the approval of the Court. In all cases, fees and expenses shall be reasonable for the work, responsibility, and risk. Factors used to determine the reasonableness of a fee may include the time and labor required, the size of the estate, the requisite skill, the customary fee, a fee agreement, the results obtained, time limitations, and the length of the professional relationship.

 

RULE 89. FORMAL PROOF OF HIGHWAY WAIVED UNLESS DEMANDED

In any case in which a road or a "way" as defined in RSA 259:125 or a public highway, a Party shall notify the opposing Party or that Party's Attorney at least ten (10) days prior to trial if said "way" or public highway must be formally proved; otherwise, the need to formally prove said "way" or public highway will be deemed to be waived.

 

RULE 90. ADOPTION - Personal Attendance

The Petitioner(s) and the individual to be adopted shall appear at the hearing on the adoption, unless the presence of either is excused by the Court for good cause shown.

 

RULE 91. ADOPTION OF FOREIGN-BORN CHILD

A. Unless the Court orders otherwise, for purposes of RSA 170-B:6, VI, any one of the following documents, which indicate that the child is a foreign adoptee (IR-3 status) or the subject of a foreign guardianship awarded for the purpose of the child's adoption in the United States (IR-4 status), will be accepted by the Court as evidencing that the parental rights of the parents of the proposed adoptee have been voluntarily or involuntarily terminated by the proper authorities in a foreign country:

1. An attested or certified copy of the child's actual Visa (Form OF-230), indicating either IR-3 or IR-4 status, issued by the U.S. Consulate in the proposed adoptee's country of birth.

2. An attested or certified copy of the proposed adoptee's alien registration card indicating either IR-3 or IR-4 status.

3. A certified copy of the proposed adoptee's passport issued in his/her country of birth, with the U.S. Visa stamp affixed indicating either IR-3 or IR-4 status.

B. Unless the Court orders otherwise, for purposes of RSA 170-B:22, II, any of the documents specified in section A above, except those bearing an IR-4 status, are acceptable documentation and satisfactory evidence to establish the validity of a foreign adoption.

C. The attestation or certification of the copies deemed acceptable under the preceding section shall be by a notary public commissioned under the laws of the jurisdiction where the act occurs and shall be substantially in the following form:

"A true copy attest

________________________________

Notary Public

My Commission Expires:__________

Affix Notarial Seal Here"

or, alternatively,

"I hereby certify that I have personally examined and compared this copy against the original instrument and find this copy to be a true copy of the original in every respect save this certification.

_____________________________

Notary Public

My Commission Expires:_________

Affix Notarial Seal Here"

 

 

RULE 91-A. [Reserved for Future Use]

 

RULE 92. ADOPTIONS - Proof of Birth, Guardianship Pending

Upon filing a Petition for adoption, the Petitioner shall file, or cause to be filed, the original or a certified copy of the proposed adoptee's birth certificate. If, at the time of filing, a birth certificate has not been issued, the Petitioner may file a certificate or record of live birth, or a similar document verifying the proposed adoptee's birth.

Once the Petition for adoption, the required proof or verification of the proposed adoptee's birth, and any required consent to the adoption has been filed, the Register may, upon the Petitioner's written request, issue a written confirmation of filing which shall be in the following form:

STATE OF NEW HAMPSHIRE

COUNTY OF __________________ PROBATE COURT

CONFIRMATION OF FILING

"This will serve to officially confirm that there is on file with the Registry of Probate a petition for the adoption of ________________ by _____________ _____________, as well as a certified copy of the birth certificate or other verification of the live birth of _________________ and a consent to the adoption, approved by the court, and has been filed by _____________________."

Where anonymity is required or the parties in interest prefer anonymity, the Petitioners may file a petition for guardianship in order to acquire, and be able to present proof of, proper authority for care, custody, and control of the child preliminary to adoption. The appointment may be qualified by such conditions as the Court deems proper and consistent with the child's best interests.

 

RULE 93. PROCESSING AND DISPOSITION OF TERMINATION OF PARENTAL RIGHTS CASES

A. Purpose. The purpose of this rule is to assure the speedy processing of Petitions for the termination of parental rights and to achieve permanent family plans for the children within the scope of RSA Chapter 170-C. This rule should in no way be considered as superseding constitutional or statutory rights of Parties to these proceedings.

B. Contents of Petition. A Petition for termination of parental rights shall include the following:

1. The name and place of residence of the Petitioner.

2. The name, sex, date and place of birth, and residence of the child.

3. The basis for the Court's jurisdiction.

4. The relationship of the Petitioner to the child, or the fact that no relationship exists.

5. The names, addresses, and dates of birth of the parents.

6. When the child's parent is a minor, the names and addresses of said minor's parents or guardian of the person.

7. The names and addresses of the following Persons:

(a) the Person having legal custody;

(b) the guardian of the person:

(i) of the parent, or

(ii) of the child;

(c) any individual acting in loco parentis to the child; or

(d) the organization or authorized agency having legal custody or providing care for the child.

8. The grounds on which termination of the parent-child relationship is sought.

9. The names of the authorized agency to whom or to which legal custody or guardianship of the person of the child may be transferred.

10. If the Petition for termination is filed subsequent to an abuse/neglect proceeding, the names and addresses of the attorneys representing the parents and the names and addresses of any guardian ad litems appointed in the underlying abuse/neglect case.

11. If the Petition is filed by an authorized agency, the name and address of the Attorney representing the agency and the name and address of the social worker assigned to the case.

C. Contents of Notice. The order of notice provided for in RSA 170-C:7 shall be attached to a copy of the Petition and shall include the following:

1. The statement that termination of parental rights means the loss of all rights to custody, visitation, and communication with the  child and that if termination is granted, the parent will receive no notice of future legal proceedings concerning the child.

2. An explanation of the need to respond immediately to the notice, both to prepare for trial and because important hearings will take place prior to trial.

3. An explanation of how to find out the time and place of future hearings in the case.

4. Notice of right to counsel, of the procedure to follow to obtain appointed counsel, and of the role that counsel can play in Court proceedings.

5. The date, time, and place of the hearing on the Petition for termination of parental rights. The statement that a written Appearance must be filed with the Court on or before the date of the hearing, or the Respondent/parent may personally appear on the date of the hearing, or be defaulted.

6. The statement that the failure to appear personally or in writing will waive all rights to a hearing and that the Person's parental rights may be terminated at the hearing.

D. Notice. After a Petition has been filed, the Court shall set the time and place for hearing and shall give notice thereof to the Petitioner.

1. The Petitioner shall cause notice to be given to:

(a) the Respondent/parent;

(b) the guardian ad litem and/or guardian of the person of the child;

(c) the guardian ad litem and/or guardian of the person of any other Party;

(d) the Person having legal custody of the child; and

(e) any individual standing in loco parentis to the child.

2. Where the child's parent is a minor, notice shall also be given to the minor's parents or guardian of the person unless the Court is satisfied, in its discretion, that such notice is not in the best interest of the minor and that it would serve no useful purpose.

3. The Petitioner shall provide notice to the Respondent(s)/parent(s) by personal service. Where it shall appear impractical to personally serve the Respondent/parent, however, the Court shall, upon Motion of the Petitioner, order service, either by certified mail, return receipt requested (restricted delivery to addressee only), to the Respondent's/parent's last known address, or by publication once a week for two (2) successive weeks in a newspaper of general circulation in the area where that Person was last domiciled, or both.

4. The Petitioner shall include with a Motion for notice by publication an affidavit describing the Petitioners efforts to locate and serve the absent parent.

5. All other Parties shall be given notice by regular mail at their last known address.

6. Pursuant to RSA 170-C:13, costs of giving notice and advertising shall be paid by the Petitioner.

E. Initial Hearing. Should the Respondent/parent enter an Appearance or appear personally, the hearing described in (C)(5) of this rule shall be considered an initial hearing. At this hearing, the Court shall:

1. Determine that the Court has jurisdiction.

2. Assure that all parents have been identified and located, and if there is a unnamed or absent parent, inquire about what efforts have been made to locate that Person.

3. Appoint counsel for the Respondent(s)/parent(s), if necessary.

4. Address the issue of notice, if necessary.

5. Order evaluations, if appropriate.

6. Establish the time and date for a structuring conference.

7. Address any other matters necessary to expedite the case and to make orders for that purpose.

F. Structuring Conference. When an initial hearing is held as a result of an Appearance by the Respondent/parent, a structuring conference shall be scheduled to be held within thirty (30) days after the initial hearing. At the structuring conference, the Court shall:

1. Resolve any outstanding discovery disputes.

2. Identify issues of law and fact for trial.

3. Assure that all relevant evaluations will be completed prior to the final hearing on the merits.

4. Resolve any other matters which will simplify or aid the conduct of the final hearing on the merits.

5. Determine if a pretrial conference will be necessary and if so, set the time and date.

6. Set the time and date of the final hearing on the merits and estimate its length.

G. Pretrial Conference. A pretrial conference is not mandatory. However, if a pretrial conference is held, it shall be held at a time, within the discretion of the Court, after the structuring conference and before the final hearing on the merits. At the pretrial conference, the Court shall:

1. Resolve any remaining issues which would simplify or aid the conduct of the final hearing on the merits, e.g. memoranda of law, admission of documents, admission of reports, etc.

2. Review the final witness list.

3. Confirm the date, time, and estimated length of the final hearing on the merits.

H. Final Hearing On the Merits. If the Respondent/parent neither enters an Appearance nor appears personally, the final hearing on the merits shall be conducted in place of the scheduled initial hearing. If the Respondent/parent enters an Appearance, the final hearing on the merits shall be commenced within one hundred twenty (120) days after the structuring conference. The Court shall set aside sufficient time to avoid interruptions of the final hearing on the merits. In the event a final hearing on the merits cannot be completed within the allotted time, it may be adjourned. Except for good cause shown, the adjournment shall not exceed fourteen (14) days.

I. Issuance of Court Order. The Court shall issue a decision which shall include a disposition no later than thirty (30) days after the date of the final hearing on the merits, or when applicable, the filing of an Affidavit as to Military Service.

Upon the granting or denial of a Petition for termination of parental rights brought by the Division of Children, Youth and Families subsequent to a district court proceeding, the Court shall send notice of the decision to the district court.

Upon the granting or denial of a Petition for termination of parental rights brought by the Division of Children, Youth and Families, the Court shall send notice of the decision to the adoption unit. If the petition for termination is granted, the Court shall require the Division for Children, Youth and Families social worker to transfer the termination of parental rights case to the adoption unit within ten (10) days of the expiration of the appeal period and send a letter to the Court confirming such transfer. The Adoption Unit Social Worker shall file an Appearance for purposes of receiving notice for subsequent hearings.

If, after the final hearing on the merits, the Court does not order a termination of parental rights but finds that the best interest of the child requires substitution or supplementation of parental care and supervision, and orders a guardianship over the child by the Division for Children, Youth and Families or an authorized agency, a review hearing shall be scheduled to be held within one (1) year after any Court order granting guardianship is issued, and annually thereafter.

J. Post-Termination Case Review Hearings. The guardian ad litem for the child shall continue as such until the child is adopted or the Court discharges the guardian ad litem from further involvement in the case.

If the Court orders termination of parental rights and grants custody of the child to the Division for Children, Youth and Families for the purpose of placing the child for adoption, a post-termination case review hearing shall be scheduled to be held within ninety (90) days of the Court's order, and every six (6) months thereafter, unless excused by the Court for good cause shown. If an adoption petition is filed prior to any scheduled post-termination case review hearing, the hearing may be cancelled.

Within five (5) days prior to the post-termination case review hearing, the Division for Children, Youth and Families shall submit a written status report to the Court. The Division for Children, Youth and Families shall forward a copy of the status report to the child's guardian ad litem and/or attorney. The report shall be dated and signed and shall be written by the Division for Children, Youth and Families to include four (4) separate categories, as outlined below:

1. A description of the agency's progress toward arranging an adoptive placement for the child.

2. If adopted parents have not already been selected, a schedule and description of the steps taken to place the child for adoption.

3. A discussion of any special barriers preventing placement of the child for adoption and how they should be overcome.

4. The projected date for filing a Petition for adoption.

The Court shall make any orders which may be appropriate to achieve permanency.

K. Change of Venue. When the Division for Children, Youth and Families wishes to proceed with adoption proceedings in a county or state other than where the termination occurred, the division may seek a change of venue pursuant to Rule 115.

 

RULES 93-A to 94. [Reserved for Future Use]

 

RULE 95. CRIMINAL CONTEMPT

(a) Summary Disposition. A direct criminal contempt may be punished summarily if the judge certifies that he or she saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court. Oral notice of the conduct observed must be given by the judge and the contemnor given an opportunity to speak in his or her defense. The order of contempt shall recite the adjudication and sentence and shall be signed by the judge and entered of record. The disposition, when imposed, shall also be entered on a separately numbered State v. (The Contemnor) file.

(b) Disposition Upon Notice and Hearing. An indirect criminal contempt shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the Judge in open court in the presence of the defendant or, on application of an Attorney for the State or of an Attorney appointed by the Court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to admission to bail as provided by statute. In a proceeding under this subdivision, if the contempt charged involves disrespect to or criticism of a Judge, that Judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt, the Court shall enter an order fixing the punishment.

 

RULE 96. WILLS - Filed without Administration

In the case of testacy, if there is no estate to be administered, a will may be filed and recorded without taking out administration, provided that a certified copy of a death certificate is filed with the Register. No other documents will be required when a will is filed without administration.

 

RULE 96-A. [Reserved for Future Use]

 

RULE 97. WILLS - Proof by Codicil

If the Court finds that a codicil is executed with the same formality as a will, and that the codicil specifically refers to the will, ratifying and confirming those provisions not amended by the codicil, the Court shall allow the will to be proved by proving the codicil.

 

RULE 98. WILLS - Nuncupative or Lost

In cases of nuncupative wills or lost wills, the Register shall follow the general procedures relating to the probate of estates.

 

RULE 99. WILLS - With Charitable Trust, Charitable Remainder Trust or Charitable Bequest

Whenever a will containing a charitable trust, charitable remainder trust, or charitable bequest is presented for probate, the Register shall send a copy of said will to the Director of Charitable Trusts within fourteen (14) days after the will is allowed.

 

RULE 99-A. [Reserved for Future Use]

 

RULE 100. VOLUNTARY ADMINISTRATIONS – Contribution of Non-estate Funds

Financial contributions, from either trust or personal funds which are not a part of the estate, may be made for the purpose of paying estate bills. Such contributions are not taken into account when determining the overall size of an estate relative to the jurisdictional limits found in RSA 553.

 

RULE 100-A. [Reserved for Future Use]

 

RULE 101. STATUS REPORTS - Estates Opened Solely to Pursue a Cause of Action

In estates opened solely to pursue a cause of action, a Fiduciary may file a motion to postpone the filing of annual accounts while the underlying legal action is pending. In lieu of an account, the Fiduciary shall file status reports as ordered by the Court. In no event, however, shall a Fiduciary be excused from filing an account for more than three (3) consecutive years.

 

RULE 102. PRIVATE CLAIM BY OR AGAINST FIDUCIARY

For purposes of this rule, a private claim is defined as a claim against the estate by the Fiduciary or a claim against the Fiduciary by the estate. The Fiduciary shall give notice of a private claim either by:

1. Including the words "and private claim of" within the heading of the account and in the notice of such account.

2. Setting out the claim in a separate Motion to the Court.

RULE 102-A. CREDITOR'S CLAIM

Pursuant to RSA 556:2 creditors have no obligation to file with the Court a copy of the notice of claim sent to the fiduciary. If, however, a creditor chooses to file its notice of claim, the Register shall accept the copy and enter it upon the docket without requiring an Appearance Form. A creditor who has not filed an Appearance Form is not a Party of record, entitled to notice and copies of the pleadings. Any creditor wishing to become a Party of record, shall enter an Appearance.

 

RULE 103. BONDS - Corporate

When a surety company is offered as surety on a probate bond, no such bond shall be approved unless the name of the Person executing the bond for the surety company has been certified to the Register by the insurance commissioner, or such surety company shall have filed with the Register a Power of Attorney or a certified copy thereof authorizing the execution of such bond. The Court may require proof, in the form of an affidavit or otherwise, that the Person purporting to be an officer of any surety company and executing on behalf of the company any bond, letter, or Power of Attorney, is in fact such an officer. The attorney-in-fact's name shall be printed or typed under his or her signature on the bond.

 

RULE 103-A. BONDS - Personal

Personal bonds shall be used only when ordered by the Court, and no such bond shall be accepted unless the principal duly subscribes:

I, THE PRINCIPAL NAMED ABOVE, AGREE TO PAY THE JUDGE OF PROBATE THE AMOUNT OF THIS BOND IF I DO NOT FAITHFULLY PERFORM THE DUTIES OF MY OFFICE AS FIDUCIARY AS REQUIRED BY NEW HAMPSHIRE LAW. THIS OBLIGATION SHALL CONTINUE UNTIL I FULFILL ALL OF MY DUTIES AND SHALL BE BINDING ON MY ESTATE.

 

RULE 103-B. BONDS - Change of Sureties or Penal Sum of Bond

No change of sureties or of the penal sum (amount) of any probate bond shall be made except upon order of the Court.

 

RULE 104. SURETY OR BENEFICIARY AS APPRAISER OR COMMISSIONER

No surety on the bonds of Administrators, trustees, guardians, or conservators, nor any Person Beneficially Interested in an estate, shall be appointed appraiser or commissioner of the same estate.

 

RULE 105. [Reserved for Future Use.]

 

RULE 105-A. INVENTORIES - Failure to Object

When a copy of an inventory is sent to a Party or a Beneficially Interested Person, failure to object within ten (10) days after the date the inventory is filed in the Court, shall act as a waiver of the right to object to the inventory and the right to any further notice concerning any hearing on the inventory.

 

RULE 106. MOTIONS FOR LICENSE TO SELL, MORTGAGE, OR LEASE

When a license is required by statute, all Motions for a license to sell, mortgage, or lease real estate, or to sell personal property shall not be acted upon until the inventory in that estate has been filed and accepted by the Court. No real or personal property shall be sold for less than inventory value, unless otherwise ordered by the Court.

All Motions for a license to sell, mortgage, or lease real estate, or to sell personal property shall include the inventory value and, if different, the current market value of the property. All Motions for a license to mortgage real estate shall include the amount of the note, interest rate, and the terms of the mortgage. All Motions for a license to lease real estate shall include the amount of rent, length of the lease, and the terms of the lease.

All Motions for a license to sell, mortgage, or lease real estate, shall contain a description of the real estate sufficiently accurate to make a conveyance thereof, and shall likewise contain a reference to the book and page number of the decedent's or ward's deed or title, as recorded in the Registry of Deeds.

 

RULE 106-A. MOTIONS FOR LICENSE TO SELL REAL ESTATE TO PAY DEBTS OR LEGACIES

Motions for a license to sell real estate for the payment of debts or legacies must include a statement, under oath, showing the assets of the estate, the debts (and legacies, if any) due from the estate, and the estimated amount of the expenses of administration.

The Motion shall also contain a description of the real estate sufficiently accurate to make conveyance thereof, and shall likewise contain a reference to the book and page number of the deed or title of the decedent, as recorded in the registry of deeds.

 

RULE 106-B. LICENSE TO SELL, MORTGAGE, OR LEASE - Notification of Proceeds

In a sale, mortgage, or lease under license, the Fiduciary shall notify the Court of the net proceeds of the sale, mortgage, or lease within thirty (30) days following receipt of such proceeds.

 

RULE 106-C. LICENSE TO SELL, MORTGAGE, OR LEASE - Return

Whenever a Fiduciary has been granted a license to sell, mortgage, or lease real estate, the estate shall not be closed until the Fiduciary has filed the return of sale with the Court. The return of sale shall indicate, under oath, the Fiduciary's actions pursuant to such license, whether or not any sale, mortgage, or lease, has been made thereunder.

 

RULE 107. SALES WITHOUT LICENSE

No license is required in the sale of real estate when all heirs consent or when the sale is directed by the will. After any such sale, the Fiduciary shall notify the Court of the net proceeds of the sale within thirty (30) days following receipt of such proceeds.

The notification shall also contain a description of the real estate sufficiently accurate to make a conveyance thereof, and shall likewise contain a reference to the book and page number of the deed or title of the decedent or ward, as recorded in the Registry of Deeds.

Notification shall not be required from a fiduciary to whom waiver of administration has been granted.

 

RULE 108. FIDUCIARY ACCOUNTING STANDARDS

The following standards shall be applicable to all interim and final accountings of Administrators, trustees, guardians and conservators, required or permitted to be filed with the Court.

A. Accounts shall be stated in a manner that is understandable by Persons who are not familiar with practices and terminology peculiar to the administration of estates, trusts, guardianships and conservatorships.

1. All accounts shall be rendered on a cash basis, except in extraordinary circumstances upon specific written order of the Court.

2. All accounts shall be rendered for a specified period, with an indicated opening and closing date. Such period shall be for not more than twelve months ending on the last day of a calendar month, unless otherwise ordered by the Court. A first accounting shall begin on the date of appointment and end on the last day of the calendar month next preceding the anniversary month of appointment, unless a shorter period is specified in such accounting, or unless otherwise modified upon appropriate Motion to the Court. Accounts subsequent to the first account shall be for periods of twelve (12) months. An accounting other than a first account may be for a shorter period if it is appropriate because a specified event (such as death of a beneficiary or ward; closing the estate; or date specified in the applicable Court order or will) occurs, resulting in a change in the responsibilities or duties of the Fiduciary.

3. For Administrators, accounts shall list all receipts by source (other than the principal value of real estate, unless the real estate has been actually sold by the Fiduciary) and all disbursements by payee. Gains and losses on disposition of property shall be netted and reported with receipts.

4. For trustees, accounts shall list separately all receipts and disbursements of principal by source and by payee; and all receipts and disbursements of income by source and by payee. Gains and losses on disposition of property shall be netted and reported with receipts of principal.

5. For guardians and conservators, accounts shall list separately all receipts by source and all disbursements by payee. Gains and losses on disposition of property shall be netted and reported with receipts. For each asset comprising the reported "Balance in Hands of Fiduciary," excluding all Tangible Personal Property, the Fiduciary shall provide Proof of Assets.

6. All accountings shall be capable of being understood by a Person of average intelligence, literate in English, and familiar with basic financial terms, and who has read the accounting with care and attention.

7. The use of terms of special meaning, such as "debit" or "credit" or abbreviations, should be avoided or explained.

B. A Fiduciary account shall begin with a concise summary of its purpose and content. The account shall begin with a brief statement identifying the Fiduciary, the subject matter, the relationship of Parties interested in the account to the account, and, if applicable, appropriate notice of any limitations on or requirements for action by Parties interested in the account. The following information shall be provided.

1. The sequence of the account (first, second, etc.) and identification of a final account as such.

2. The period covered by the account, with an indicated opening and closing date (i.e., the accounting period).

3. Identification of the Fiduciary by name; title (executor, administrator, etc.); mailing address; and telephone number through which Fiduciary may be contacted.

4. At the Fiduciary’s option, a statement of the purposes of filing the account.

5. Identification of the Attorney, if any, representing the Fiduciary by name; business address; and telephone number.

6. Identification of the Parties interested in the account as of the date of filing, by name; capacity in which interested in the account (remainderman, income beneficiary, ward, heir-at-law, etc.); and last known residence or business address.

7. A summary of the total receipts, total disbursements and total balance on hand at the end of the account, all expressed in dollar values, supported by schedules in the account.

C. A Fiduciary account shall contain sufficient information to put parties interested in the account on notice as to all significant transactions affecting administration during the accounting period.

1. The first account of a Fiduciary shall detail the items received by the Fiduciary and for which the Fiduciary is responsible. The account shall not simply refer to the total amount of an inventory filed separately or assets described in documents other than the account itself. Tangible Personal Property may be referred to in summary form; provided, however, that such summary designates where detailed lists of the applicable Tangible Personal Property may be located.

2. In second and subsequent accounts, the opening balance shall not simply refer to the total value of assets on hand as shown in detail in the prior account, but shall list each item separately. Tangible Personal Property may be referred to in summary form, as in the manner prescribed for first accounts.

3. Transactions shall be described in sufficient detail to give Parties interested in the account notice of their purpose and effect.

4. All balances on hand shall be itemized, on a separate schedule.

5. When filing the final account in the administration of an intestate estate, if the balance passes to more than one heir, the Fiduciary shall file a separate schedule listing in detail the computation and satisfaction of disbursements provided under the laws of intestacy, in order to reconcile the aggregate of such disbursements.

6. Compensation of Attorneys, professionals, and Fiduciaries shall be shown separately in summary form, unless otherwise ordered by the Court. Extraordinary administrative costs (such as appraisals, ancillary administration expenses, etc.) shall be shown separately and explained. Administrative costs of Court and other fees, postage, copying, telephone toll charges, and similar routine out-of-pocket expenses may be shown in summary form.

7. With regard to disposition of real estate by a Fiduciary, the Fiduciary shall show the date of disposition, the gross sales price or disposition value, plus all adjustments to such price or value incident to the disposition, including costs of sale and applicable real estate and transfer taxes, to permit ready determination, by Parties interested in the account, of how the net sale proceeds received by the Fiduciary were calculated.

8. With regard to gains and losses on disposition of property, the Fiduciary shall provide with regard to each disposition the date of disposition, proceeds of disposition and book value or cost of the disposed property.

9. Interest and penalties paid in connection with late filing of tax returns, late payment of tax liabilities, of any nature, probate citations for late filing or failure to file reports or accountings, shall be shown separately and explained.

10. An extraordinary allocation between principal and income shall be separately stated and explained.

11. If the Fiduciary makes an allocation, such as the computation of a formula marital deduction gift, involving non-probate assets, it shall be explained in detail; provided, however, that the non-probate assets involved in such computation may be stated in summary form.

12. No disbursements for administrative expenses shall be listed as "estimated" or "reserved" without explanation.

D. A Fiduciary account shall include both book value or cost of assets and current values of such assets at the beginning and end of the accounting period.

1. "Book value" (a) for Administrators, shall be the value of the property at the date of death; (b) for trustees, shall be the book value of the prior Fiduciary from whom the property was received; and (c) for guardians and conservators, shall be the value of the property at the date of appointment.

2. "Cost" shall be the consideration given or paid by a Fiduciary with regard to property initially acquired by the Fiduciary.

3. If book values at initial valuation cannot be readily determined, the values used shall reflect a thoughtful decision by the appraiser; and the explanation of the principal factors determining such decision shall be set forth in the account in which such values are first reported.

4. If current values for interim or final accountings cannot be readily determined, the values used shall reflect a good faith judgment by the Fiduciary; and the explanation of the principal factors determining such decision shall be set forth in the account. Such valuation shall be subject to approval of the Court.

5. Book value or cost shall not normally be adjusted for depreciation except upon specific written order of the Court.

6. Book value based on date of death may be adjusted to reflect federal valuation elections or changes on audit of the estate or inheritance tax returns, upon appropriate Motion to the Court.

7. A successor Fiduciary or co-Fiduciary may adjust the book value or cost of assets to reflect values at the start of the administration of, or subsequent receipt of assets by, the successor Fiduciary or co-Fiduciary, upon appropriate Motion to the Court.

8. Assets received in kind by a Fiduciary in satisfaction of a pecuniary legacy shall be carried at the value used for the purposes of such disbursement.

9. Current values for the beginning and closing dates of the accounting period shall be determined by the same methods used to determine book value, or by reference to readily determinable fair market valuing techniques (for example, market values for readily traded securities; principal balance for certificates of deposit, etc.); provided, however, that any variations in valuing method shall be explained.

10. Accounts of the administration of any decedent’s estate need not reflect current values of assets at the end of the accounting period.

11. When an asset is held by a trustee, guardian or conservator, under circumstances that make it clear that it is not likely to be disposed of (for example, a residence held for the use of a beneficiary), the Fiduciary may report an estimate of current value; provided, however, that the Fiduciary discloses the use of an estimate and the Fiduciary’s basis for the estimate used.

E. The account shall show significant transactions that do not affect the amount for which the Fiduciary is accountable.

1. The schedule listing such transactions shall consist of an information schedule, which shall be set forth at the end of the other schedules required in an account, setting forth each transaction by a separate number.

2. All changes in investments not reflected as gains or losses reported on other schedules of receipts shall be listed. These would include, but not be limited to, stock dividends; stock splits; changes in name; exchanges; or reorganizations.

3. All new investments made within the accounting period, and in hand at the close thereof, shall be noted on the schedules of assets on hand at the close of the accounting period. Totally new investments, and increased or additional investments in the same investment as shown on the schedules of assets on hand at the beginning of the accounting period of the account, shall be separately designated or annotated.

4. With regard to book accounts, notes or installment obligations (whether secured or not), detail regarding collections or payments shall be provided to permit reconciliation of the balances shown on schedules of assets on hand at the beginning and the close of the accounting period.

5. The Fiduciary shall also report on the information schedule the details of any events causing or resulting in a change in the manner, method or course of the Fiduciary’s administration. Such events would include, but not be limited to, death of an interim income beneficiary; shifting enjoyment of the income to another beneficiary; death of a remainderman during the course of administering an estate; or a beneficiary reaching a designated age, after which time the beneficiary has a right to mandate partial withdrawals of principal.

 

RULE 108-A. ACCOUNTS - Failure to Object

When a copy of an account is sent to a Party or a Beneficially Interested Person, failure to object within thirty (30) days after the date the account is filed in the Court, shall act as a waiver of the right to object to the account and the right to any further notice concerning any hearing on the account.

 

RULE 108-B. ACCOUNTS - Personal Attendance

All Fiduciaries shall appear at any hearing upon their accounts, unless excused by the Court.

 

RULE 109. INTERPRETERS

No Person who has assisted in the preparation of a case, shall act as an interpreter at the trial thereof, if objection is made, except in the discretion of the Court.

 

RULE 110. MOTIONS FOR COMMISSIONER OF INSOLVENCY

All motions for a commissioner of insolvency shall include a statement of the debts due from the estate so far as can be ascertained, and the value of the real and personal property.

 

RULE 111. GUARDIANSHIP OF MINORS NECESSITATED BY RSA 464-A:42

A guardianship necessitated by the provisions of RSA 464-A:42 may be filed any time after suit has been commenced in the Superior Court or District Court, and before settlement is approved by the Superior Court or District Court. A copy of the proposed Petition to the Superior Court or District Court seeking approval of the settlement, as well as all supplemental documentation required under Superior Court or District Court rule, shall be appended to the Petition for guardian.

If the settlement contemplated at the time of the filing of the Petition for guardian, as reflected in the appended Superior or District Court Petition, proposed Petition and supplemental documentation, shall be in any manner changed prior to approval by the Superior or District Court, even if at the direction of that Court, the guardian shall immediately file a written notification with the Probate Court, with copies of the revised documentation appended.

Upon its consideration of the Petition for guardian and any subsequently filed notice of revision, the Probate Court shall consider the form or sufficiency of bond. Any alteration of bond requirements shall be at the Court’s discretion.

In establishing the form and sufficiency of bond, the Probate Court shall consider the nature and amount of the asset(s), its (their) form of investment, the guardian's experience and reputation in managing property of the same or similar type as that of the guardianship, the attendant risks or volatility of the form of investment(s), any restrictions or limitations imposed upon the guardian by the Court in mitigation of waste, misfeasance or malfeasance and similar concerns related to the safety and security of the guardianship estate and its proper administration and management. After giving the consideration required, the Court, in its discretion, shall impose such bond requirements as attendant circumstances warrant.

No letter of appointment shall issue until the bond has been posted by the guardian and approved by the Probate Court. The Probate Court may require supplemental, substitute or an alteration in the bond requirements from time to time to accommodate changing circumstances of the guardianship. Upon establishment of the guardianship, a letter of guardianship shall issue which shall have appended to it a decree referencing the Probate Court’s consideration of the proposed settlement in relation to the Fiduciary bond or in lieu thereof, the Probate Court shall issue a certification or provide other documentation which the guardian shall file with the Superior Court or District Court, as required under Superior or District Court rule, confirming that in setting the fiduciary bond of the guardianship, the settlement was considered.

Unless specific written Probate Court authorization is granted for alternate investment, the guardian may invest the settlement asset(s) only in accordance with RSA 463:20,:22 and :23-a.

To minimize the expense of bond requirements, the Probate Court may, in its discretion, restrict, restrain or enjoin the guardian from expending, withdrawing, encumbering or otherwise disposing of the settlement proceeds without prior written approval of the Probate Court or upon such other limitations or conditions as it may impose.

To further minimize the expenses and any attendant inconvenience the Court may, in its discretion, waive annual accounting and order accounting on such other basis as the circumstances of the guardianship may reasonably require from time to time. In the absence of a contrary order, an accounting shall be filed annually by the guardian.

All costs, expenses and fees related to the guardianship shall be paid from the guardianship estate assets subject to the approval of the Probate Court.

 

RULE 111-A. GUARDIANSHIP OF MINORS - Procedure on Receipt of Additional Assets

In the event that a guardian of the estate of a minor shall receive additional assets not identified in the guardian's inventory, the guardian shall file within ten (10) days after receipt, written notice with the Court containing a description of the assets received and the market value of the assets.

The Court shall review the amount of the guardian's bond in light of the additional assets received by the guardian. The Court shall order an increase in the amount of the guardian's bond if the Court determines such an increase is necessary in light of the receipt of the additional assets. Upon receipt of the Court's order the guardian shall arrange for the increase of the bond.

 

RULE 112. CONFIDENTIAL INFORMATION

Any Pleading, report, record, or evidence submitted to the Court containing confidential information, as defined by law, shall be maintained in a file marked "CONFIDENTIAL" by the Register.

The Register shall remove the confidential file from the public file before making it available to anyone not a Party to the action requesting access to the file. Anyone not a Party to the action requesting access to confidential information in the file shall be advised to follow the procedures outlined in the "Guidelines for Public Access to Court Records."

 

RULE 113. CONSOLIDATION OF ACTIONS

Whenever a Motion is filed in any county requesting the transfer of an action there pending to another county for trial with an action there pending, arising out of the same transaction or event or involving common issues of law, and/or fact, after notice to all Parties in all related actions pending in the state, the Court may make such order for consolidation in any one of such counties in which such actions are pending. The Court, on its own Motion, may initiate consolidation.

 

RULE 114. [Reserved for Future Use]

 

RULE 115. CHANGE OF VENUE, INCONVENIENT FORUM

Venue of any Probate administration or other proceeding may be changed from the Probate Court of one county, hereafter called "transferring Court," to the Probate Court of any other county, hereafter called "receiving Court." Upon Petition or Motion to both Courts and sufficient proof of inconvenience, change of residence of a principal Party to the proceeding, or other good cause shown, in the discretion of the transferring Court, venue may be changed subject to acceptance by the receiving Court.

Once the transferring Court has granted and the receiving Court has accepted the change of venue, the transferring Court shall forward the original file of the Probate records to the receiving Court and retain a copy, unless, as a part of the order of transfer or acceptance, only a specified part of the original file is transferred or ordered reproduced and authenticated. Upon the change of venue, the transferring Court shall give notice to all interested Parties of the change of venue and notice that all future Pleadings shall be filed with the receiving Court.

Whenever transfer is made of the administration of a decedent’s estate, a guardianship, a conservatorship, or other proceeding where a bond is pending in the transferring Court, the bond shall remain in effect unless or until specifically discharged by the receiving Court. In those cases where a new bond is required by the receiving Court, the transferring Court may discharge the original bond.

To effect a change of venue, the following must occur:

1. A Motion shall be filed in the transferring Court.

2. The Motion must be granted by the transferring Court.

3. A Petition to accept the transfer must be filed in the receiving Court.

4. A Petition to accept the transfer must be granted by the receiving Court.

5. The Petitioner shall notify the bonding company of the proposed transfer.

6. The Petitioner shall file with both Courts the written assent from the bonding company to the transfer, or file a new bond with the receiving Court.

Jurisdiction of a Probate matter may be transferred out of state by following the procedure outlined above, except that the transferring Court shall forward certified copies of the file to the receiving Court and shall retain the original file.

 

RULE 116. [Reserved for Future Use]

 

RULE 117. FORM OF PLEADING

The name of the county in which a Pleading is filed shall be written in the upper left margin of each Pleading; and the words "in said county" shall refer to the county in the margin, unless the contrary appears.

 

RULE 118. FORM OF EQUITY PETITIONS - Structure

Every Equity Petition shall contain the county, title of the Court, names, places of abode, and proper description of all Parties to the proceeding. The Petition shall include the complete mailing and service addresses for the petitioner(s) and all respondents. The form in substance shall be as follows:

PROBATE COURT

County of ____________, Month, Year

A.B.

v.

C.D.

NAME OF PETITION

A.B. of etc., complains against C.D. of etc., and says, etc. and requests, etc...

The Petition may conclude "and thereupon the Petitioner prays," setting forth the special relief sought, "and for such other relief as may be just". If an injunction or other special order pending the suit is desired, it shall be specifically requested.

 

RULE 119. [Reserved for Future Use]

 

RULE 120. FORM OF PETITION AND ANSWER - Obligation to be concise

Every Petition and Answer should be expressed concisely; and no deed, will, agreement or other writing shall be set forth at length or annexed to any Petition or Answer, but only so much as may be material.

 

RULE 121. FORM OF PETITION AND ANSWER – Numbered Paragraphs

Each allegation of distinct and separate facts should be placed in a paragraph by itself which should be numbered; and, when so numbered, the order observed in the Petition should be followed in the Answer.

 

RULE 122. PETITION TO QUIET TITLE

All Petitions to remove clouds from title shall contain a separate paragraph setting forth specifically the clouds sought to be removed and the legal basis relied upon for their removal.

 

RULE 123. [Reserved for Future Use]

 

RULE 124. PETITION - Entry and Orders

Petitions may be filed at any time. An order of notice shall be issued, returnable, at the election of the Party who takes out the same, subject to the requirements of service, at any Return Day within three (3) months from the date thereof. An order of notice returnable at any date other than a regular Return Day may issue if the Court finds that justice so requires.

 

RULE 125. PETITION - Service

Service of an attested copy of the Petition and order of notice may be shown by affidavit of the Person serving the same, or by the return of the officer.

If service as specified in the orders of notice can not be accomplished, the Court may order one of the following methods of service of process, in the following priority, subject to the discretion of the Court:

1. In hand.

2. Abode.

3. Certified or registered mail, return receipt requested (restricted delivery to addressee only).

4. Certified or registered mail, return receipt requested.

5. Publication, in accordance with Rule 128.

RULE 126. PETITION - Attested copies

In all cases where attested copies are required, copies attested by the Attorney for the Party shall be sufficient.

 

RULE 127. PETITION - Time limits for Answer

Every order of notice shall contain an order to the Respondent to file an Answer within thirty (30) days after the Return Day and to deliver a copy thereof to the Petitioner’s Attorney, or to the Petitioner if pro se; otherwise the Petition will be taken pro confesso.

 

RULE 128. PETITION - Notice by Publication

Except where otherwise required by statute or ordered by the Court, in cases of notice by publication where the time may be fixed by the Court, the order shall be for publication in a newspaper having general circulation in the area where the Party was last known to have resided, once a week for two successive weeks, the last publication to be not less than seven (7) days before hearing or not less than fourteen (14) days before the Return Day.

When ordered by the Court, in addition to publication the Petitioner shall:

1. File with the Court a statement under oath of the name, residence address and/or post office address of some near relative, if any is known, and otherwise the name, residence address and/or post office address of some friend; and

2. Send by registered or certified mail, with request for return receipt, a copy of the Petition, Motion or other Pleading attested by the Register with citation or order of notice appended, the same to be mailed to such relative or friend.

 

RULE 129. PETITION - Writs of Attachment

All writs of attachment in aid of a Petition must be served upon the Respondent. Rule 86 relating to trustees' disclosure shall apply to this rule. Any such writ shall be entered without charge and filed with and as part of the action which it aids.

 

RULE 130. [Reserved for Future Use]

 

RULE 131. APPEARANCES AND ANSWERS - Time to file

In the absence of other express court order, rule, or statutory provision, if the Respondent, having been duly notified, shall neglect to enter an Appearance within seven (7) days after the Return Day or shall neglect to file and deliver to the Petitioner’s Attorney an Answer within the time prescribed in the order of notice, the Petition shall be taken as pro confesso, and a decree entered accordingly. No such decree pro confesso shall be set aside, except by agreement, or by order of the Court upon such terms as justice may require.

 

RULE 132. EQUITY ANSWERS - Form

Every equity Answer shall contain the county, the title of the Court, case, and docket number. The form in substance shall be as follows:

PROBATE COURT

County of ___________, Month, Year

A.B.

v.

C.D.

Docket No. ____

ANSWER OF RESPONDENT

C.D. of etc., answers as follows, etc...

 

RULE 133. ANSWERS

The Respondent, in answering the allegations in the Petition, shall not do so evasively but shall answer fully and specifically every material allegation in the Petition and set out Respondent’s defense to each claim asserted by the Petition. If the Respondent is without knowledge of any particular facts, Respondent shall so state and this will be treated as a denial. The Answer of the Respondent may state as many defenses as the Respondent deems essential. The Respondent may allege any new or special matter in the Answer with a prayer for relief. An Answer, to the effect that an allegation is neither admitted nor denied, will be deemed an admission.

All facts well alleged in the Petition, and not denied or explained in the Answer, will be held to be admitted.

 

RULE 134. [Reserved for Future Use]

 

RULE 135. AMENDMENTS TO PLEADINGS

With the exception of accounts and inventories, all amendments to Petitions, Motions, or Pleadings must be proposed by Motion, which may be granted or denied by the Court. For amendments to accounts and inventories, no Motion is required; but the entire court approved form shall be re-submitted.

 

RULE 136. AMENDMENTS - Response

A response to an amended Pleading must be filed within ten (10) days after the amended Pleading has been filed or the facts set forth in the amendment shall be taken as admitted.

 

RULE 137. REPLICATIONS - Equity

Every replication shall be filed within ten (10) days after the filing of the Answer and shall contain the county, the title of the Court, case, and docket number. The form in substance shall be as follows:

PROBATE COURT

County of ___________, Month, Year

A.B.

v.

C.D.

Docket No. ____

REPLICATION OF RESPONDENT

C.D. of etc., replication as follows, etc...

 

RULE 138. [Reserved for Future Use]

 

RULE 139. NEW PARTIES

Any Person shown to have an interest may become a Party to any proceeding on Motion briefly setting forth that Person’s relation to the Cause; or upon Motion of any Party, such Person may be made a Party by order of Court notifying that Person to appear therein. If the Person so notified shall neglect to appear and respond, the Petition shall be taken pro confesso as against that Person. No such decree pro confesso shall be set aside, except by agreement, or by order of the Court upon such terms as justice may require.

 

RULE 140. SECURITY FOR COSTS

When the Petitioner is a non-resident, the Petitioner shall furnish security for costs in such amount and within such time as the Court may order.

 

RULE 141. PRELIMINARY ORDERS

The Court may, on its own motion or upon Motion of a Party, make orders for the appointment of guardians ad litem, preliminary orders, and other orders relative to proceedings preparatory to a hearing upon the merits. Motions for dissolving injunctions or for the extension or rescission of any order may be heard by the Court upon notice.

 

RULE 142. CONTEMPT AND ARREST

Orders for contempt may be issued by the Court at any time upon evidence of the violation of any injunction or other order, or for failure of witnesses to give evidence upon subpoena, and commitment may be made thereon.

Parties may be arrested upon an order of the Court and required to give bonds for appearance and to abide the order of the Court in any case where it shall be deemed necessary.

Due process requirements of notice and hearing shall be as provided by New Hampshire law.

 

RULE 143. CONTEMPT AND ARREST - Bail

Sheriffs and deputy sheriffs are authorized to take bail in contempt proceedings and shall immediately forward such bail to the Register of the Court issuing the capias.

 

RULES 144-149. [Reserved for Future Use]

 

RULE 150. STIPULATIONS OR AGREEMENTS

All stipulations or agreements shall be typewritten and signed by the Parties and, if represented, by their Attorneys as well. The Court, in its discretion, may accept fully executed handwritten stipulations or agreements and may require a fully executed typewritten substitute to be filed with the Court within ten (10) days.

 

RULE 151-160. [Reserved for Future Use]

 

RULE 161. TEMPORARY RESTRAINING ORDERS; PRELIMINARY INJUNCTIONS

(a) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted only by a judge of the Probate Court. It may be granted without written or oral notice to the adverse Pro Se Party or Attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified Petition that immediate and irreparable injury, loss or damage will result to the applicant before the adverse Pro Se Party or Attorney can be heard in opposition; and (2) the applicant or the applicant's Attorney certifies to the Court in writing the efforts which have been made to give the notice or the reasons supporting his or her claim that notice should not be required. Any hearing held without the presence of the adverse Pro Se Party or Attorney shall be recorded, unless waived by the Court. Every temporary restraining order, which is granted without notice, shall be endorsed with the date and hour of issuance, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall expire by its terms within such time after issuance, not to exceed ten (10) days, as the Court fixes, unless, within the time so fixed, the order, for good cause shown, is extended for a like period, or unless the Party, against whom the order is directed, consents that it may be extended for a longer period. In case a temporary restraining order is granted without notice, the application for a preliminary injunction shall be set down for hearing at the earliest possible time, and in any event within ten (10) days, and, when the matter comes on for hearing, the Party, who obtained the temporary restraining order, shall proceed with the application for a preliminary injunction, and if he or she does not do so, the Court shall dissolve the temporary restraining order. On two (2) days' notice to the Party who obtained the temporary restraining order without notice, or on such shorter notice to that Party as the Court may prescribe, the adverse Party may appear and move its dissolution or modification, and, in that event, the Court shall proceed to hear and determine such Motion as expeditiously as the ends of justice require.

(b) Preliminary Injunction.

(1) Notice. No preliminary injunction shall be issued without notice to the adverse Party and they shall only be issued by a judge of the Probate Court.

(2) Consolidation of Hearing With Trial on Merits. Before, or after, the commencement of the hearing of an application for a preliminary injunction, the Court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.

(c) Security. Unless the Court, for good cause shown, shall otherwise order, no restraining order or preliminary injunction shall issue except upon the giving of an injunction bond by the applicant, in such sums as the Court deems proper, for the payment of such costs and damages as may be incurred or suffered by any Party who is found to have been wrongfully enjoined or restrained. No such bond shall ordinarily be required of the United States or of the State of New Hampshire.

The provisions of Rule 163 apply to a surety upon a bond or undertaking under this Rule.

(d) Form and Scope of Injunction or Restraining Order. Unless the Court, for good cause shown, otherwise orders, an injunction or restraining order shall be specific in terms; shall describe in reasonable detail, the act or acts sought to be restrained; and is binding only upon the Parties to the action, their officers, agents, servants, employees, and Attorneys, and upon those Persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

 

RULE 162. INJUNCTIONS - Filing of Pleading

Before injunctions are granted, it must appear that some Pleading has been filed; but, when the object of the injunction would be defeated by the delay necessary to file such Pleading, an injunction may issue to expire on a day specified therein, unless such Pleading be filed by such a day.

 

RULE 163. INJUNCTIONS - Bond

Whenever an injunction is issued without notice to, or appearance by, the adverse Party, the Party at whose request it is issued, may, and ordinarily shall, be required to give bond with sufficient sureties, conditioned to pay and satisfy all such damages as may be occasioned to the adverse Party by reason of the injunction, in case it shall that the injunction was unwarranted.

Whenever these rules require or permit the giving of security by a Party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the Court and irrevocably appoints the Register as that Person’s agent upon whom any papers affecting liability on the bond or undertaking may be served. Liability may be enforced on Motion without the necessity of an independent action. The Motion and such notice of the Motion as the Court prescribes may be served on the Register, who shall immediately mail copies to the sureties if their addresses are known.

 

RULE 164. PREPARATION OF EX PARTE DECREES

A Party requesting an ex parte decree shall prepare a proposed order for the Court to consider.

 

RULES 165-168. [Reserved for Future Use]

 

RULE 169. FEES

ENTRY FEES:

 

Original Entry of any Equity Action

$130.00

Petition File and Record Authenticated Copy of Will, Foreign Wills; Petition Estate Administration; Petition Administration of Person Not Heard From; Petition Guardian, Foreign Guardian or Conservator (RSA 464-A); Motion Prove Will in Common and/or Solemn Form (administration required); Motion to Re-examine Will $105.00

Petition Termination of Parental Rights; Petition Appoint Trustee; Petition Involuntary Admission; Petition Guardian Minor Estate and Person and Estate (RSA 463); Petition Guardian of Incompetent Veteran (RSA 465)

$80.00

Petition Adoption, includes one certificate (no entry fee when accompanied by a Petition for termination); Motion successor Trustee, Administrator, Executor, or Guardian of Estate and Person and Estate (RSA 463)(RSA 464-A); All Fiduciary Accounts; Motion to Reopen (estate administration); Motion to Bring Forward; Motion for Summary Administration

$55.00

Administration of Small Estates (Voluntary Administration); Petition Change of Name (includes one certificate); Petition Guardian Minor Person (RSA 463); Marriage Waiver (includes certificate/attested copy); Petition Change of Venue (includes authenticated copy fee); Motion Successor Guardian of Person (RSA 463)(RSA 464-A); Motion Sue on Bond; Motion Remove Fiduciary; Motion Fiduciary to Settle Account

$30.00

ENTRY FEES INCLUDE:

Preparation and issuance of Orders of Notice, Notice, Copies of Decrees, mailing costs, certificate to discharge surety.

ENTRY FEES DO NOT INCLUDE:

Notice by publication: This fee shall be paid by the Party or the Attorney for the Party from whom the notice is required. The cost of publication shall be determined by the Register of each county. The request may require that payment be made directly to the publisher of the notice.

In-hand service: If service by a law enforcement officer is required, the Party or the Attorney for the Party from whom the notice is required shall pay the cost of service appropriate county sheriff's department.

Additional copies: If additional copies of any document, or additional certificates are requested beyond those included in normal processing as indicated above, the Party or the Attorney for the Party requesting the additional copies shall pay the costs in advance as indicated under "Certificates & Copies."

OTHER:

Defaults (RSA 548:5-a) $25.00/each occurrence
Citations/show cause (RSA 548:5-a and 550:2) $50.00/each occurrence
Duplicate Audio Tape $25.00/each tape

CERTIFICATES & COPIES:

Certificates $5.00
Certification $5.00 plus copy fee
Photocopy of Will $1.00/page
All other copied material $ .50/page
Authenticated Copy of Probate $25.00/each

"Certificates & Copies" shall apply to individual requests for the above services, requests for additional certificates beyond those provided with the original entries and requests for additional copies beyond those provided with the original entry fees.

 

RULES 170-171. (Reserved for Future Use)

 

 

APPENDIX X

Amend Rule 8 of the Rules of the Family Division Pilot Program by adding a new second paragraph, so that Rule 8 as amended shall state as follows:

8. Motions: Parties may not address written communications directly to the judge/master. All requests shall be by properly filed motion with certification of delivery of a copy of the motion to the other party, unless jointly filed. No exhibits shall be attached to motions unless necessary to support an affidavit.

A no contact order in a domestic violence, stalking, or similar matter shall not be deemed to prevent either party from filing appearances, motions, and other appropriate pleadings, through the Court. At the request of the party filing the pleading, the Court shall forward a copy of the pleading to the party or counsel on the other side of the case. Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel, when both parties are represented.

 

APPENDIX Y

Adopt new Rule 21-A of the Rules of the Family Division Pilot Program as follows:

21-A. Attendance of Minors:

In any proceedings brought pursuant to RSA chapters 168-A, 458, 458-A, or 460, no minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing without prior order of the court based upon good cause shown unless in an emergency situation.