THE STATE OF NEW HAMPSHIRE
SUPREME COURT OF NEW HAMPSHIRE
O R D E R
Pursuant to Part II, Article 73-a of the New Hampshire Constitution, and Supreme Court Rule 51 A, the Supreme Court of New Hampshire approves amendments to Supreme Court Rule 12-D as set forth in Appendix A, Supreme Court Rule 32-A as set forth in Appendix B, Supreme Court Rule 37(10) as set forth in Appendix C, Supreme Court Rule 50(1)A as set forth in Appendix D, Supreme Court Rule 50(2)B as set forth in Appendix E, and Superior Court Rule 36 as set forth in Appendix F. These amendments shall be effective on October 1, 2002.
To the extent, if any, that the following superior court forms, which appear in New Hampshire Court Rules Annotated (LexisNexis 2002-2003 Edition) at pages 358 to 370, have been adopted as rules pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51 A, they are hereby repealed:
Preliminary pretrial order
Entry of not guilty plea and waiver of formal arraignment
Petition to attach with notice
Petition for ex parte attachment
Application to annul record of conviction and sentence
Certificate of annulment of conviction and sentence
Petition for destruction of controlled drugs
Order relative to destruction of drugs [includes return of order].
To the extent necessary, superior court forms not inconsistent with court rules may be promulgated by the administrative judge of the superior court. See Supreme Court Rule 54(5).
August 15, 2002
Eileen Fox, Clerk of Court
Supreme Court of New Hampshire
Amend subparagraph (6)(b) of temporary Supreme Court Rule 12-D by deleting said subparagraph and replacing it as set forth below, and adopting Rule 12-D as amended on a permanent basis, so that Supreme Court Rule 12-D shall state as follows:
RULE 12-D. SUMMARY PROCEDURES ON APPEAL
(1) Selection of Cases.
(a) By order of the court, consistent with the criteria set out at paragraph (5) below, any case may be set for oral argument before a panel of three justices (3JX panel).
(b) Any party may request or consent that a case be set for oral argument before a 3JX panel. The court will consider and act upon such request, based upon criteria set out at paragraph (5) below.
(c) If all parties of record are represented by counsel, the court may direct that the matter be submitted on briefs, without oral argument. See Rule 18(5).
(d) Except as noted in this rule, the procedure for cases assigned to a 3JX panel shall be the same as otherwise provided in these rules. Any motions made in a case assigned to a 3JX panel shall be acted upon by the panel. The panel may, in its discretion, refer any such motion to the full court for resolution.
(2) Disposition after Argument Before Three Justices; Additional Briefing, etc. Any case which has been heard by a 3JX panel shall be decided by unanimous order of the three justices. If the panel cannot reach a unanimous decision, it shall direct that the case be reargued before the full court. The panel may order that a case be reargued before the full court in such other circumstances as it deems appropriate. The panel may, prior to determining that a unanimous decision cannot be reached, require additional briefing. If argument before the full court is ordered, the court may issue an additional order setting forth matters to be reargued or rebriefed.
(3) Nonprecedential Status of Orders. An order issued by a 3JX panel shall have no precedential value and shall not be cited in any pleadings or rulings in any court in this state, provided however, that such order may be cited and shall be controlling with respect to issues of claim preclusion, law of the case and similar issues involving the parties or facts of the case in which the order was issued.
(4) Opinions. With the consent of all the parties, a 3JX panel may recommend to the full court that a published opinion be issued in the case. If the court accepts the referral, the two justices not on the panel may participate in the opinion by reading the briefs and reviewing oral arguments. Without the consent of the parties, a 3JX panel which believes a published opinion should be issued in the case may order the case be reargued before the full court.
(5) Criteria for Selection of Cases for 3JX Panel. Cases suitable for oral argument before a 3JX panel include, but are not limited to:
(a) appeals involving claims of error in the application of settled law;
(b) appeals claiming an unsustainable exercise of discretion where the law governing that discretion is settled;
(c) appeals claiming insufficient evidence or a result against the weight of the evidence.
(6) Briefing, Argument, etc.
(a) In all cases selected for oral argument before a 3JX panel, briefs shall be limited to 20 pages, exclusive of the table of contents, tables of citations and any addendum containing pertinent texts of constitutions, statutes, rules, regulations and other such matters. Reply briefs shall be limited to 10 pages.
(b) Oral argument will be limited to five minutes per side. In the event of multiple parties on the same side, the court may determine, either upon its own motion or upon motion of a party, an appropriate amount of time for oral argument.
(7) Motion for Rehearing or Reconsideration. Motions for rehearing or reconsideration of any order assigning a case to a three-justice panel or of any order issued by a three-justice panel shall be governed by Rule 22.
Adopt new Supreme Court Rule 32-A as follows:
RULE 32-A. COUNSEL IN GUARDIANSHIP AND INVOLUNTARY ADMISSION CASES.
(1) Whether retained by the defendant or appointed by a lower court, trial counsel in a guardianship case commenced by the filing of a petition pursuant to RSA 464-A:4 or RSA 464-A:12 or in an involuntary admission case commenced by the filing of a petition pursuant to RSA 135-C:36 shall be responsible for representing the defendant in the supreme court unless the supreme court relieves counsel from this responsibility for good cause shown. When the defendant clearly indicates to counsel a desire to appeal, counsel shall be responsible for the filing of a notice of appeal. Provided, however, that if counsel concludes that the appeal is frivolous, counsel must first attempt to persuade the defendant not to appeal. If, however, the defendant insists on appealing, counsel shall file the notice of appeal. To avoid violating Professional Conduct Rule 3.1, the notice of appeal should be accompanied by a motion to withdraw indicating that counsel has forwarded a copy of the notice of appeal to the client and has advised the client of the right to file a supplement to the notice of appeal raising any additional issues. See In re Richard A., 146 N.H. 295 (2001).
(2) A motion to withdraw as counsel on appeal in a guardianship case commenced by the filing of a petition pursuant to RSA 464-A:4 or RSA 464-A:12 or in an involuntary admission case commenced by the filing of a petition pursuant to RSA 135-C:36 must state reasons that would warrant the grant of leave to withdraw.
(3) Trial counsel shall continue to participate until and unless the motion to withdraw is approved by the supreme court.
(4) Indigent cases appealed to the supreme court must be accompanied by petitions for either initial assignment or continued assignment of counsel together with a current financial affidavit or a photocopy of same.
Amend Supreme Court Rule 37(10) by deleting it and replacing it with the following:
(10) Reciprocal Discipline:
(a) Upon being disciplined in another jurisdiction, an attorney admitted to practice in this State shall immediately notify the committee of the discipline. Upon notification from any source that an attorney admitted to practice in this State has been disciplined in another jurisdiction, the committee 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 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 committee containing:
(1) A copy of the order from the other jurisdiction; and
(2) An order directing that the attorney or committee inform the court, within thirty days from service of the notice, of any claim by the lawyer or committee predicated upon the grounds set forth in subparagraph (d), that the imposition of the identical 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 days from service of the notice pursuant to subparagraph (b), the court shall issue an order of final discipline imposing the identical discipline unless the attorney or 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 discipline by the court would result in grave injustice; or
(3) The misconduct established warrants substantially different discipline in this State.
If the court determines that any of those elements exists, it shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this State to demonstrate that the imposition of identical discipline is not appropriate.
(e) In all other aspects, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this State.
Amend Supreme Court Rule 50(1)A by adding the parenthetical, ("financial institution"), to the end of the first sentence of said subsection, so that said subsection as amended shall read as follows:
A. An interest-bearing trust account shall be established with any bank or savings and loan association authorized by federal or State law to do business in New Hampshire and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation ("financial institution"). Funds in each interest-bearing trust account shall be subject to withdrawal upon demand.
Amend Supreme Court Rule 50(2)B by deleting it and replacing it with the following:
B. All cash property of clients received by attorneys shall be deposited in one or more clearly designated trust accounts (separate from the attorney's own funds) in financial institutions. Any attorney depositing client funds into an out-of-state financial institution shall file a written authorization with the Clerk of the Supreme Court authorizing the Court or its agents to examine and copy such out-of-state account records. Under no circumstances may any attorney use out-of-state banks other than those located in Maine, Vermont, Massachusetts, or the state in which the attorney's office is situated, without obtaining prior written approval from the Supreme Court.
Amend Superior Court Rule 36 by amending the third paragraph of said rule, which begins with the words "The party serving the interrogatories," so that said paragraph as amended shall state as follows:
The party serving the interrogatories shall furnish the answering party with an original and two copies of the interrogatories. The interrogatories shall be so arranged that after each separate question shall appear a blank space reasonably calculated to enable the answering party to have his 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.