THE STATE OF NEW HAMPSHIRE
SUPREME COURT OF NEW HAMPSHIRE
O R D E R
R-01-003, In re Further Comments on 1997 and January 1998 Reports of the Advisory Committee on Rules
After receipt of public comments on R-97-002 and R-98-001, which are respectively the 1997 and January 1998 Reports of the Advisory Committee on Rules, the court requested that the New Hampshire Supreme Court Advisory Committee on Rules undertake further review of certain proposals it had recommended. The committee has reported to the court. The court now invites further public comment with respect to the proposed adoption of the following rules:
A. SUPERIOR COURT ADMINISTRATIVE RULES
1. Rule 1-6 re authority of clerks (Appendix A).
B. PROFESSIONAL CONDUCT RULES
1. Rule 1.17 re transfer and assumption of law practice (Appendix B).
2. Rule 5.4(a)(2) re transfer and assumption of law practice (Appendix C).
3. Rule 7.2 re lawyer advertising (Appendix D).
4. Rule 7.3 re lawyer solicitation (Appendix E).
On or before Monday, April 30, 2001, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the above rules. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at:
Copies of the proposed changes are available upon request to the clerk of the supreme court at the N.H. Supreme Court Building, One Noble Drive, Concord, New Hampshire 03301 (Tel. 271-2646). In addition, the proposed changes are available on the Internet at: http://www.state.nh.us/courts/supreme.htm.
February 6, 2001
ATTEST: Howard J. Zibel, Clerk
Supreme Court of New Hampshire
Amend Superior Court Administrative Rule 1-6 by striking out said rule and inserting in place thereof the following new rule, so that said rule as amended shall read as follows:
1-6 Authority of Clerks.
In addition to the inherent authority of the clerk of superior court 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.
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 set all cases for trial pursuant to Rule 11.
(b) To enter default and continue for judgment pursuant to Rule 14.
(c) Upon withdrawal of counsel to set a date for the filing of a new appearance and issue such order as may be necessary upon non-compliance pursuant to Rule 20.
(d) To enter default pursuant to Rule 51 for failure to file docket markings.
(e) To discontinue cases pursuant to Rule 52.
(f) To allow the withdrawal of court documents pursuant to Rule 56.
(g) To enter final judgment pursuant to Rule 74.
(h) To return violation appeals to district court where the entry fee has not been paid pursuant to Rule 92.
(i) In conjunction with the presiding justice, to enter scheduling orders pursuant to Rule 96-A.
(j) To enter orders regarding service by publication pursuant to Rule 128 and Rule 146.
(k) To enter default pursuant to Rule 131 and Rule 139.
(l) To dismiss marital cases which have been pending for two years pursuant to Rule 151.
(m) To waive the waiting period in marital cases pursuant to Rule 152.
(n) 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.
Amend the Professional Conduct Rules by adding the following new Rule 1.17:
Rule 1.17 Transfer and Assumption of Law Practice
A lawyer, a law firm, or the estate or legal representative of a lawyer or law firm, may transfer a law practice, including goodwill, to another lawyer or law firm through the sale of the same, if the following conditions are satisfied:
(a) the transferring lawyer ceases to engage in the private practice of law within the State of New Hampshire;
(b) the practice is transferred as an entirety and the successor lawyer assumes all professional responsibility for the clients of that practice commencing as of the date of transfer;
(c) prior actual written notice is given to each of the transferring lawyer's clients regarding (1) the proposed transfer and assumption of the practice, (2) the name of the specific attorney who will be responsible for the client's files, (3) the client's right to retain other counsel or to take possession of the client's files, (4) the fact that the successor lawyer is paying the transferring lawyer for the goodwill associated with the practice, and (5) the fact that the client's consent to the sale will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of the receipt of the notice. If a client cannot be given notice, the representation of that client may be transferred to the successor lawyer for the limited purpose of protecting the interests of that client, and the successor lawyer shall have a continuing obligation to attempt to provide the client with the actual written notice as herein specified;
(d) the fees charged to transferred clients by the successor lawyer shall be in accordance with the fee agreement in effect between the client and the transferring lawyer prior to the transfer; and
(e) the successor lawyer shall take possession of all inactive or archival files previously retained by the transferring lawyer to be stored, handled, or destroyed in accordance with the normal operating procedures of the successor lawyer with notice of the transfer of those inactive files being published in an appropriate newspaper of local circulation and with that notice also being given to the New Hampshire Bar Association.
Amend Professional Conduct Rule 5.4(a)(2) so it reads as follows:
(2) a lawyer who assumes the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate, or other representative of that lawyer, the agreed upon transfer price;
Amend Professional Conduct Rule 7.2 by striking out said rule and inserting in place thereof the following new rule:
Rule 7.2. Advertising
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written communication.
(b) A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this rule;
(2) pay the fee charged by a not-for-profit lawyer referral service or organization, provided that such service or organization may only use the revenues generated by referrals to defray its expenses or to provide delivery of civil legal services to the poor; and
(3) pay for the transfer and assumption of a law practice in accordance with Rule 1.17.
(d) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.
Rule 7.3. Regulation of Solicitation
(a) In soliciting professional employment, a lawyer shall not coerce or harass a prospective client and shall not make a false or deceptive statement or claim.
(b) A lawyer shall not solicit professional employment if:
(1) the lawyer knows or reasonably should know that the physical, mental, or emotional state of the prospective client is such that there is a substantial potential that the person cannot exercise reasonable judgment in employing a lawyer; or
(2) the prospective client has made known to the lawyer a desire not to be solicited.
(c) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or by telephone (including recorded telephone solicitation) or any other form of contact by which the lawyer or other person making contact can seek immediate response, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The terms "solicit" and "solicitation" include contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but do not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.
The prohibition in paragraph (c) shall not apply to a solicitation by a non-profit organization actually engaged in litigation as a form of political expression or association and only in connection with such litigation. A lawyer shall retain a copy of any written solicitation and mailing list for a period of two years. All mailings will be clearly labelled "Advertising" in bold type on the outside envelope and on the inside text.
(d) Nevertheless, if success in asserting rights or defenses of the lawyer's clients in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept employment from those the lawyer is permitted under applicable law to contact for the purpose of obtaining their joinder. This rule does not prohibit a lawyer or a partner or associate or any other lawyer affiliated with the lawyer or the lawyer's firm from requesting referrals from a lawyer referral service operated, sponsored or approved by a bar association or from cooperating with any other qualified legal assistance organization.