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(7), the Supreme Court of New Hampshire approves, as technical amendments, amendments to Supreme Court Rule 16(9) as set forth in Appendix A; Supreme Court Rule 16(12) as set forth in Appendix B; Supreme Court Rule 37A as set forth in Appendix C; Superior Court Administrative Rule 3-1 as set forth in Appendix D; and Superior Court Administrative Rule 12-5 as set forth in Appendix E. These amendments shall take effect immediately.
Pursuant to Part II, Article 73-a of the New Hampshire Constitution, and Supreme Court Rule 51 A(7), the Supreme Court of New Hampshire approves, on a temporary basis, effective immediately, amendments to Supreme Court Rule 37 as set forth in Appendix F; and Supreme Court Rule 37A as set forth in Appendix G. These amendments to the Supreme Court Rules shall be referred to the advisory committee on rules for consideration of whether they should be adopted as permanent rules.
July 18, 2002
Eileen Fox, Clerk
Supreme Court of New Hampshire
Amend Supreme Court Rule 16(9) by deleting the third paragraph of said subsection and replacing it as follows, so that subsection (9) in its entirely as amended shall state as follows:
(9) All references in a brief to the appendix or to the record must be accompanied by the appropriate page number.
Citations to Supreme Court of the United States cases that cannot be made to the official United States Reports or to the Supreme Court Reporter shall include the month, day, and year of decision or a reference to United States Law Week. Citations to other federal decisions not presently reported shall identify the court, docket number, and date.
Citations to the decisions of this court may be to the New Hampshire Reports only. Citations to other State court decisions may either be: (a) to the official report and to the West Reporter system, with the year of decision; or (b) to the West Reporter only, in which case the citation should identify the State court by name or level, and should mention the year of decision.
Amend Supreme Court Rule 16(12) by deleting it and replacing it with the following:
(12) Failure of the appealing party to file a brief shall constitute a waiver of the appeal and the case shall be dismissed.
Amend Supreme Court Rule 37A(2)(a)(2)(A) by deleting it and replacing it with a new subsection; amend Rule 37A(2)(a)(5)(C) by deleting it and replacing it with a new subsection; and amend Rule 37A by adding a new subsection 37A(7), all as follows:
(2) Initiation of Investigation Process.
(1) Any person may file a grievance with the committee to call to its attention the conduct of an attorney that he or she believes constitutes misconduct which should be investigated by the committee. If necessary, the administrator of the committee will assist the grievant in reducing the grievance to writing. The grievant shall serve a copy of the grievance upon each of the attorney(s) who is the subject of the grievance in accordance with section (7) of this rule.
(2) In accordance with a judge's obligation under Canon 3 of the Code of Judicial Conduct to report unprofessional conduct of an attorney of which the judge is aware, a judge of the supreme, superior, district or probate courts of New Hampshire, may refer any matter to the committee which he or she believes may constitute misconduct by an attorney that should be investigated by the committee. In accordance with an attorney's obligation under Rule 8.3 of the Rules of Professional Conduct to report unprofessional conduct of an attorney of which he or she has knowledge, a member of the Bar of New Hampshire, may refer any matter to the committee which he or she believes may constitute misconduct by an attorney that should be investigated by the committee. Except as otherwise provided, a referral from a court or attorney shall be treated as a grievance. Upon receipt of a referral, the committee shall determine whether the referring judge or attorney wishes to be treated as a grievant. If the referring judge or attorney does not wish to be treated as a grievant, and, if it is determined after initial screening that the grievance is within the jurisdiction of the committee and meets the requirements for docketing as a complaint as set forth in section (2)(a)(3)(B), the committee shall process the grievance as a committee-generated complaint.
(C) Request for Answer to Complaint. After a complaint is docketed, the administrator shall promptly forward to the respondent a copy of the complaint and a request for an answer thereto or to any portion thereof specified by the committee. Unless a shorter time is fixed by the committee chair and specified in such notice, the respondent shall have 30 days from the date of such notice within which to file his or her answer with the committee. The respondent shall serve a copy of the answer in accordance with section (7) of this rule. If an answer is not received within the specified period, or any granted extension, absent good cause demonstrated by the respondent, the committee shall prepare a notice of charges requiring the respondent to appear before the committee or a hearing panel and to show cause why he or she should not be determined to be in violation of Rules 8.1(b) and 8.4(a) of the Rules of Professional Conduct for failing to respond to the committee's request for an answer to the complaint.
(7) Service of Copies.
(a) Copies of all pleadings filed and communications addressed to the committee by the grievant or complainant shall be furnished forthwith to each attorney 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 committee by the attorney 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) Service on a person who is represented by counsel shall be made on counsel. Service may be personal or by first class mail.
(d) In the interest of furthering any investigation, or for other good cause, the committee may waive the requirements of this section (7) on its own motion or the motion of another.
Amend Superior Court Administrative Rule 3-1(c) by inserting the word "be" in subsection (2), so that Rule 3-1(c) as amended shall state as follows:
c. Requests by Party. Requests by the parties, or other interested persons, for transcripts of cases which have been brought to a conclusion, or where there has been an interim hearing, should be made by them in writing to the Clerk. The person requesting the transcript shall state in the written request to the Clerk: (1) whether the transcript is for purposes of appeal; and (2) whether the transcript is to be used in connection with litigation pending before the New Hampshire Superior Court. If the request is for purposes other than appeal and the transcript is not for use in connection with litigation pending before the New Hampshire Superior Court, the person requesting the transcript may, but need not, state the purpose for which the transcript is requested. If the purpose is stated, it may be used in assigning priorities pursuant to Superior Court Administrative Rule 3-2.
Amend Superior Court Administrative Rule 12-5 to correct the address of the Administrative Center of the Superior Court, so that said rule as amended shall state as follows:
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.
Amend Supreme Court Rule 37(3) by redesignating subsection (c) as subsection (d), and by adding a new subsection (c), so that Rule 37(3) as amended shall state as follows:
(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.
Amend Supreme Court Rule 37A(2)(a)(6) by deleting that subsection and replacing it with the following:
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.