New Hampshire Supreme Court Rules

NH Supreme Court Rules

Rule 1. Official Publication and Notification of Rules.

The Supreme Court of New Hampshire, pursuant to its constitutional, statutory, and common law powers, N.H. CONST. pt. II, art. 73-a; RSA 490:4; Boody v. Watson, 64 N.H. 162 (1886), promulgates the following rules of practice and procedure.

    Publication in New Hampshire Bar News will constitute official publication and notification of any changes in rules regulating practice in the New Hampshire courts or governing membership in the New Hampshire Bar Association or standing as a member of the New Hampshire Bar, as well as of any other Supreme Court orders of general application.

    Rules of the supreme court and all other New Hampshire courts shall be available in the offices of all clerks of court and shall also be printed by a commercial publisher and made available for purchase by attorneys, law libraries and the public. Further information as to obtaining copies of the New Hampshire Bar News or binders of Court Rules may be obtained from the New Hampshire Bar Association or the Supreme Court’s Clerk’s office.

    In the interest of expediting a decision, or for other good cause shown, the supreme court or a single justice thereof may suspend the requirements or provisions of any of these rules in any instance on application of a party or on the court’s or a single justice’s motion, and may order proceedings in accordance with that direction.

    References in court rules to the district court shall be deemed to include the circuit court – district division; references to the probate court shall be deemed to include the circuit court – probate division; and references to the judicial branch family division shall be deemed to include the circuit court – family division.

Rule 1-A. Relationship to Other Rules

For cases commenced in the supreme court on or after August 6, 2018, these rules are supplemented by – and, as to certain matters such as the filing, format or service of a document, may be superseded by – the Supplemental Rules of the Supreme Court of New Hampshire for Electronic Filing. For cases commenced in this court prior to that date, the supplemental rules do not apply absent a specific court order to the contrary. For cases commenced on or after that date, the supplemental rules alter these rules in the following respects, among others.

Rule 4(a) of the supplemental rules establishes the circumstances in which the requirement of electronic filing applies.  For cases commenced in this court on or after August 6, 2018, but prior to January 1, 2020, attorneys must submit all documents through the court’s electronic filing system; self-represented parties and nonlawyer representatives must submit documents to the court conventionally (in paper or other non-electronic format).  For cases commenced in this court on or after January 1, 2020, attorneys, self-represented parties, and nonlawyer representatives must submit all documents, including notices of appeal or other case-initiating documents, through the court’s electronic filing system.

Rule 12 of the supplemental rules provides that a filer who submits a document to the court electronically or conventionally need not and shall not file any paper copies of the document with the court, unless otherwise ordered to do so.  Rule 11(b) of the supplemental rules states that the colored-cover, binding, and related requirements of these rules do not apply to a document that is filed electronically.  Rule 11(g) of the supplemental rules provides that a document that is filed conventionally must be printed only on the front side of each page, be logically organized and separate from other documents, and be submitted to the court with no tabs, durable bindings, or difficult-to-remove fasteners that would interfere with the clerk’s ability to scan or otherwise convert the document into an electronic document for entry in the court’s electronic case file.  Rule 18 of the supplemental rules modifies Rule 26 of these rules by requiring persons who have registered in the electronic filing system, and who are mandatory electronic filers in the case, to serve filed documents upon each other through the electronic filing system. 

Accordingly, self-represented parties, nonlawyer representatives, and attorneys involved in a case commenced in the supreme court on or after August 6, 2018, must review both the supplemental rules and these rules to ensure that their filings, whether electronic or conventional, comply with all applicable rules.

Rule 2. Term and Sessions.

The supreme court shall have a general term beginning in January of each year and shall hold regular sessions throughout the year.

Rule 3. Definitions.

“Administrative agency”: Includes agency, board, commission, or officer.

“Appeal”: Appellate review of rulings adverse to a party, after a final decision on the merits in a trial court.

“Appeal document”: Includes notice of mandatory appeal (Rule 7), notice of discretionary appeal (Rule 7), interlocutory appeal (Rule 8), interlocutory transfer without ruling (Rule 9), appeal from administrative agency by petition (Rule 10), and petition for original jurisdiction (Rule 11).

“Appeal from administrative agency by petition”: Appellate review of a party’s grounds for asserting that an administrative agency’s final order or decision on the merits is unlawful or unreasonable.

“Briefs”:

     “Opening brief”: The brief filed first pursuant to court order.

     “Opposing brief”: The brief filed by the opposing party after the filing of the opening brief.

     “Reply brief”: See Rule 16(7).

     “Supplemental brief”: See Rule 16(7).

“Clerk”: Where the context refers to the clerk of a trial court, “clerk” includes a clerk of a trial court, or the administrative agency official who is the equivalent of a clerk of court or who is charged with performing the duties associated with a clerk of court, and their respective assistants and deputies; where the context refers to the clerk of the supreme court, “clerk” includes his or her assistants and deputies.

“Decision on the merits”: Includes order, verdict, opinion, decree, or sentence following a hearing on the merits or trial on the merits and the decision on motions made after such order, verdict, opinion, decree or sentence. Untimely filed post-trial motions will not stay the running of the appeal period unless the trial court waives the untimeliness within the appeal period.

“Declination of acceptance order”: The supreme court does not deem it desirable to review the issues in a case, as a matter of sound judicial discretion and with no implication whatever regarding its views on the merits.

“First class mail”: First class postage prepaid, whether certified, registered, uncertified, or unregistered.

“Interlocutory appeal”: Appellate review of rulings adverse to a party, before a final decision on the merits in a trial court.

“Interlocutory transfer without ruling”: Appellate review of questions of law transferred by a trial court or administrative agency before a final decision on the merits in the trial court or administrative agency and without ruling by the trial court or administrative agency.

“Mandatory appeal”: A mandatory appeal shall be accepted by the supreme court for review on the merits. A mandatory appeal is an appeal filed by the State pursuant to RSA 606:10, or an appeal from a final decision on the merits issued by a superior court, district court, probate court, or family division court, including an appeal from an order issued pursuant to superior court rule 46(c)(1) if a final decision on the merits of the entire case would be a mandatory appeal, that is in compliance with these rules.  Provided, however, that the following appeals are NOT mandatory appeals:

     (1) an appeal from a final decision on the merits issued in a post-conviction review proceeding (including petitions for writ of habeas corpus and motions for new trial);

     (2) an appeal from a final decision on the merits issued in a collateral challenge to any conviction or sentence;

     (3) an appeal from a final decision on the merits issued in a sentence modification or suspension proceeding;

     (4) an appeal from a final decision on the merits issued in an imposition of sentence proceeding;

     (5) an appeal from a final decision on the merits issued in a parole revocation proceeding;

     (6) an appeal from a final decision on the merits issued in a probation revocation proceeding.;

     (7) an appeal from a final decision on the merits issued in a landlord/tenant action filed under RSA chapter 540 or in a possessory action filed under RSA chapter 540; and

     (8) an appeal from an order denying a motion to intervene; and

     (9) an appeal from a final decision on the merits, other than the first final order, issued in, or arising out of, a domestic relations matter filed under RSA Title XLIII (RSA chapters 457 to 461-A).

Comment

A trial court order denying a motion by a non-party to intervene in a trial court proceeding is treated as a “final decision on the merits” for purposes of appeal.  Thus, such an order is immediately appealable to the supreme court.  Pursuant to this rule, however, such an appeal is not a mandatory appeal.  Therefore, a non-party who wishes to appeal the trial court’s denial of the non-party’s motion to intervene must file an appeal pursuant to Rule 7(1)(B) within the time allowed for appeal under that rule. 

Under paragraph (9), only appeals from first final orders in domestic relations matters filed under RSA Title XLIII are mandatory appeals.  The April 4, 2014 amendment to paragraph (9) changes the language of the prior rule which provided that only appeals from final divorce decrees or decrees of legal separation were mandatory appeals. The change addresses the claim, identified in In the Matter of Miller & Todd, 161 N.H. 630 (2011), that providing for mandatory review of appeals involving married parents but discretionary review of appeals involving non-married parents raises constitutional concerns.  

“Moving party”: The plaintiff in an interlocutory transfer, the party appealing by appeal or by interlocutory appeal, or the party petitioning that the supreme court exercise its original jurisdiction.

“Notice of appeal”: The notice filed to initiate an appeal from the trial court’s final decision on the merits, in the form prescribed by these rules.

“Petition for original jurisdiction”: Request that the supreme court exercise its original jurisdiction, whether exclusive or nonexclusive and whether in aid of its appellate jurisdiction or its supervisory jurisdiction, and that the court issue an extraordinary writ or grant other suitable relief.

“Trial court reporter”: Trial court or administrative agency reporter.

Rule 4. Types of Cases.

Cases from the superior court, the probate court, and the district courts shall be entered upon the filing of an interlocutory transfer without ruling, an interlocutory appeal with ruling, or upon the filing of a notice of appeal after a decision on the merits.

Cases from administrative agencies shall be entered upon the filing of an interlocutory transfer without ruling or upon the filing of an appeal by petition.

Cases requesting the supreme court to exercise its original jurisdiction shall be entered upon the filing of a petition.

Cases heretofore entered from courts by reserved cases and bills of exceptions shall be entered by interlocutory transfers without ruling, by interlocutory appeals with ruling, or by notices of appeal, as the cases may warrant. Cases heretofore entered from courts and administrative agencies by certification of questions of law shall be entered by interlocutory transfers without ruling.

Cases entered by the Governor and Council or by either house of the legislature as requests for advisory opinions shall be entered as requests of the respective bodies.

Rule 5. Docketing the Case: Filing the Record.

(1) In an appeal from a trial court decision on the merits pursuant to Rule 7, the party appealing shall pay the entry fee prescribed by the supreme court and, unless differently provided by law, shall simultaneously file the notice of appeal, including the attachments mentioned on the applicable notice of appeal form, in the office of the clerk of this court, 1 copy with each of the parties, and 1 copy with the office of the clerk of the court from which the appeal is taken.

In an interlocutory appeal from a ruling and in an appeal from an administrative agency by petition, the party appealing, and in an interlocutory transfer without ruling and in a petition requesting the supreme court to exercise its original jurisdiction, the plaintiff shall pay the entry fee prescribed by the supreme court and shall simultaneously file the required forms in the office of the clerk of this court, 1 copy with each of the parties, and 1 copy with the office of the clerk of the court or agency from which the appeal or transfer is taken. 

In all criminal appeals and appeals from an administrative agency, the appealing party shall simultaneously file 1 copy of the notice of appeal with the attorney general.

A cross-appeal by another party shall be docketed in the same manner, accompanied by the required entry fee, subject to Rule 7(5) or Rule 10(9).

A motion to extend time to file an appeal document, when not accompanied by the appeal document, shall be docketed upon the filing of the motion, accompanied by the required entry fee. The moving party shall simultaneously file 1 copy with each of the parties, 1 copy with the office of the clerk of the court or agency from which the appeal or transfer is taken, and (in the case of a criminal appeal or an appeal from an administrative agency) 1 copy with the attorney general. A motion to extend time to file an appeal shall be granted only in exceptional circumstances. See Rule 21(6).

(2) The court may upon motion waive payment of the entry fee in exceptional circumstances. Such motion shall be filed at the same time the notice of appeal or other appeal form is filed.

In any criminal case where the defendant is indigent and wishes to be represented by appointed counsel, a petition for assignment of counsel or for continued assignment of counsel and supporting financial statement of indigency shall be filed in this court at the same time the notice of appeal is filed. It is essential that Rule 32 be complied with.

(3) A case may be docketed under the title given to it in the trial court or administrative agency from which the case is transferred, or the supreme court may process and report the case under a new name or names.

(4) If the moving party shall fail to cause timely docketing of the case, in accordance with the requirements of these rules, or transmission of the record or to pay the entry fee, if one is required, the case shall be dismissed.

(5) Any person not complying with Supreme Court procedural rules may be assessed any postage or copying costs incurred by the clerk’s office in obtaining compliance with these procedural rules.

Rule 6. Form of Cases and Appendices.

(1) Filings of cases and appendices shall be made through the court’s electronic filing system, unless the case or case-initiating document is exempt or unless the person filing the case is exempt or has filed a motion to be excused from the requirement of electronic filing in accordance with the Supplemental Rules of the Supreme Court of New Hampshire for Electronic Filing.  

(2) If the filing of the case and any appendix is not made through the court’s electronic filing system, the case-initiating document and any appendix must be submitted to the court conventionally (non-electronically) in accordance with Rule 26 and may be prepared using a printing, duplicating or copying process capable of producing a clear letter quality black image on white paper, but shall not include ordinary carbon copies. Unless submitted through the court’s electronic filing system, each filing of a case shall be upon good quality, nonclinging paper 8 ½ by 11 inches in size. If timely filings do not conform to this rule or are not clearly legible, the clerk of the court may require that new copies be substituted, but the filings shall not thereby be deemed untimely.

(3) The front cover of the filing of a case and of the appendix, if the appendix is separately produced, shall contain: (1) The name of this court; (2) The docket number, after one has been assigned; (3) The title of the case; (4) The nature of the proceeding in this court, e.g., appeal by petition; and (5) The names and addresses of counsel for the party filing the case. See form in appendix to these rules.

(4) Whenever the pertinent text of constitutions, statutes, ordinances, rules, regulations, insurance policies, contracts or other documents is to be set forth in an appendix, it need not be typewritten, but may be produced by an easily readable duplicating or dry copying process.

(5) Each request for findings of fact and rulings of law set forth in a notice of appeal or appendix shall indicate on the margin whether they have been “granted,” “denied” or “not ruled upon” by the master or the court.

Rule 7. Appeal from Trial Court Decision on the Merits.

(1)(A) Mandatory appeals.

Unless otherwise provided by law or by these rules, a mandatory appeal, other than an appeal in a parental notification case under RSA 132:34, shall be by notice of appeal in the form of notice of appeal approved by the supreme court for the filing of a mandatory appeal (“Notice of Mandatory Appeal” form). Such an appeal shall be filed by the moving party within 30 days from the date on the clerk’s written notice of the decision on the merits or, in the case of a sentence imposed in a criminal or juvenile delinquency proceeding, within 30 days of the date the sentence is pronounced.

(B) Other appeals from trial court decisions on the merits.

The supreme court may, in its discretion, decline to accept an appeal, other than a mandatory appeal, or any question raised therein, from a trial court after a decision on the merits, or may summarily dispose of such an appeal, or any question raised therein, as provided in Rule 25. Unless otherwise provided by law or by these rules, an appeal from a trial court decision on the merits other than a mandatory appeal shall be by notice of appeal in the form of notice of appeal approved by the supreme court for the filing of such an appeal (“Notice of Discretionary Appeal” form). Such an appeal shall be filed by the moving party within 30 days from the date on the clerk’s written notice of the decision on the merits or, in the case of a sentence imposed in a criminal or juvenile delinquency proceeding, within 30 days of the date the sentence is pronounced.

(C) The definition of “decision on the merits” in Rule 3 includes decisions on motions made after an order, verdict, opinion, decree or sentence. A timely filed post-decision motion stays the running of the appeal period for all parties to the case in the trial court including those not filing the motion. If the trial court’s decision on a post-decision motion creates a newly-losing party, and the newly-losing party files a timely motion for reconsideration, such motion will further stay the running of the appeal period for all parties to the case in the trial court including those not filing the motion. Untimely filed post-decision motions will not stay the running of the appeal period unless the trial court waives the untimeliness within the appeal period. In the absence of an express waiver of the untimeliness made by the trial court within the appeal period, the appeal period is not extended even if the trial court rules on the merits of an untimely filed post-decision motion. Successive post-decision motions filed by a party that is not a newly-losing party will not stay the running of the appeal period. See Petition of Ellis, 138 N.H. 159 (1993).

    In criminal appeals, the time for filing a notice of appeal shall be within 30 days from the date of sentencing or the date of the clerk’s written notice of disposition of post-decision motions, whichever is later, provided, however, that the date of the clerk’s written notice of disposition of post-decision motion shall not be used to calculate the time for filing a notice of appeal in criminal cases if the post-decision motion was filed more than 10 days after sentencing.

(2) An appeal shall be deemed filed when the notice of appeal in proper form, together with the filing fee, is received by the clerk of this court within 30 days from the date on the clerk’s written notice of the decision or, in the case of a sentence imposed in a criminal or juvenile delinquency proceeding, within 30 days of the date the sentence is pronounced.

(3) An appeal permitted by law on a different form and by a different procedure shall be deemed timely filed when it is received by the clerk of this court on the form and by the procedure prescribed by law.

(4) All parties to the proceedings in the court from whose decision on the merits the appeal is being taken shall be deemed parties in this court, unless the moving party shall notify the clerk of this court in writing of the moving party’s belief that one or more of the parties below has no interest in the outcome of the transfer. The moving party shall deliver, to each party in the proceeding below a copy of that written notice. A party thus designated as no longer interested may remain a party in this court by notifying the clerk of this court in writing, with a copy delivered to the other parties, that the designated party has an interest in the transfer. Parties supporting the position of the moving party shall meet the time schedule provided for that party.

(5) If a timely notice of appeal is filed by a party, any other party may file a notice of cross-appeal within 10 days from the date on which the first notice of appeal was filed and shall pay a filing fee therewith.

(6)(A) The appealing party in a mandatory appeal shall attach or append to the notice of appeal the decision below, the clerk’s written notice of the decision below, any order disposing of a timely-filed post-trial motion, and the clerk’s written notice of any order disposing of a timely-filed post-trial motion.

(B) The appealing party in an appeal other than a mandatory appeal shall attach or append to the notice of appeal the decision below, the clerk’s written notice of the decision below, any order disposing of a timely-filed post-trial motion, and the clerk’s written notice of any order disposing of a timely-filed post-trial motion. Any other pleadings and documents that the appealing party believes are necessary for the court to evaluate the specific questions raised on appeal and to determine whether the appeal is timely filed shall be filed as a separate appendix. The appendix shall contain a table of contents referring to numbered pages. Note: Also see Rule 26(5). If a ground for appeal is the legal sufficiency of the evidence, the question in the notice of appeal form raising that ground shall contain a succinct statement of why the evidence is alleged to be insufficient as a matter of law.

Rule 7-A. Motion for Stay or for Remand.

(1) A motion to stay an order or judgment of a lower tribunal shall not be filed in this court unless the movant has first unsuccessfully sought similar relief from the lower tribunal. This requirement may be waived by the court upon motion in extraordinary circumstances. Any motion to stay shall be accompanied by a copy of the request for similar relief filed with the lower tribunal, any objection filed thereto, and the lower tribunal’s order denying such relief. In addition, any motion to stay shall be accompanied by a copy of the order or judgment which the motion seeks to have stayed.

(2) A motion for remand or partial remand shall be accompanied by a copy of the pleading(s) that the movant intends to file with the lower tribunal if the motion is granted. Unless the court orders otherwise, the grant of a partial remand shall not stay the proceedings in this court.
Comment
Perfection of an appeal vests exclusive jurisdiction in the supreme court over those matters arising out of, and directly related to, the issues presented by the appeal. See Rautenberg v. Munnis, 107 N.H. 446, 447 (1966). The trial court is not in a position to act on such matters while an appeal is pending unless the case is remanded for that purpose. See id. at 448. Rautenberg also recognized, however, that the trial court is not prohibited from passing on collateral, subsidiary or independent matters affecting the case and the trial court has adequate authority and jurisdiction to preserve the status quo. See id.

In addition, Superior Court Rule 74 provides that a decree does not go to final judgment if a timely appeal is taken to the supreme court. See Rollins v. Rollins, 122 N.H. 6, 9 (1982). Thus, in an appeal from a divorce decree, for example, a timely appeal will prevent the trial court’s final decree from going into effect, and the temporary decree would remain in effect while the appeal is pending. See id. at 10. Rollins also recognized, however, that the trial judge has the authority to order that the final decree, at least in part, is to be in effect while the appeal was pending, and that an appellant’s only recourse in such a case was to obtain a stay of that order in the trial court or the supreme court. See id. (final decree as to level of child support held to be in effect while appeal was pending); Nicolazzi v. Nicolazzi, 131 N.H. 694, 696 (1989) (acknowledging trial court’s discretion to set levels of alimony and child support to be paid during appeal).

This rule is intended to: (1) provide a procedural mechanism for requesting a stay of the judgment of a lower tribunal that is not stayed by the filing of a timely appeal; and (2) provide a procedural mechanism for requesting a remand or partial remand to a lower tribunal when necessary to allow the lower tribunal to act upon a matter that is not a collateral, subsidiary or independent matter affecting the case.

Rule 7-B. Appeal from Superior Court Decision on Parental Notification Prior to Abortion

RSA 132:32-36, effective January 1, 2012, requires parental notification before abortions can be performed on unemancipated minors.  The statute provides that a minor may petition any superior court judge for an order authorizing an abortion without notification.  The statute also provides that if a court denies the petition, the minor may file, as provided by supreme court rule, an expedited confidential appeal to the New Hampshire Supreme Court.  The following provides the procedures for filing such an appeal:

        (1)  Notwithstanding anything in these rules to the contrary, the following procedures shall apply to an appeal filed pursuant to RSA 132:34 by a pregnant minor for whom the superior court denies an order authorizing an abortion without notification.

        (2)  An expedited confidential appeal shall be available to any pregnant minor for whom the superior court denies an order authorizing an abortion without notification.  Any such appeal shall be filed on the form of notice of appeal approved by the supreme court for the filing of an appeal under RSA 132:34 (“Rule 7-B Notice of Expedited Confidential Appeal from Lower Court Decision on Parental Notification Prior to Abortion” form).  An order authorizing an abortion without notification shall not be subject to appeal.

        All proceedings pursuant to this rule shall be confidential and shall ensure the anonymity of the minor.  All court proceedings shall be sealed.  All documents related to the appeal shall be confidential and shall not be available to the public.

        (3)  An appeal under this rule shall be filed by the minor within 30 days from the date on the clerk’s written notice of the decision on the merits.  A timely filed post-trial motion stays the running of the appeal period.  Untimely filed post-trial motions will not stay the running of the appeal period unless the lower court waives the untimeliness within the appeal period.  Successive post-trial motions will not stay the running of the appeal period.  See Petition of Ellis, 138 N.H. 159 (1993).

        (4)  No filing fee shall be required for an appeal under this rule.

        (5)  Filing of an appeal under this rule may be accomplished by any of the following methods:

            (A)  By delivery of the original notice of appeal in proper form to the office of the clerk of the supreme court during normal business hours of the court. 

            (B)  By depositing the original notice of appeal in proper form in the drop box at the supreme court, but in such circumstances, the notice of appeal shall be deemed filed when opened by the court staff, but in any case, no later than 8:30 a.m. the following business day.

            (C)  By e-mailing the notice of appeal in proper form to the following e-mail address:  7BAppeals@courts.state.nh.us.  At the time that the notice of appeal is e-mailed to the aforesaid e-mail address, the appealing party shall also call the telephone number provided on the “Notice of Expedited Confidential  Appeal from Lower Court Decision on Parental Notification Prior to Abortion” form, to inform the clerk of the supreme court through the court’s answering service that a notice of appeal under RSA 132:34 has been e-mailed to the office of the clerk of the supreme court.  The appealing party need not give any information other than that a notice of appeal under RSA 132:34 has been filed by e-mail, but must provide a confidential telephone number so that the party can be reached in the event that the court has not received the notice of appeal by e-mail.  The appealing party shall also either: (i) send the original notice of appeal, on or before the next business day, by first class mail addressed to the clerk of the supreme court; or (ii) deliver the original notice of appeal to the office of the clerk of the supreme court on the next business day.  The date and time that the notice of appeal is received by e-mail, however, shall be the date and time of filing.

            A minor who files her appeal by e-mail is urged to telephone the office of the clerk of the supreme court at (603) 271-2646 on the next business day to confirm that her notice of appeal was received.

            (D)  By sending the original notice of appeal in proper form by first class mail addressed to the clerk of the supreme court.  The date and time that the notice of appeal is received by the court shall be the date and time of filing.  A filing shall not be timely unless the papers are received by the clerk within the time fixed by rule or law.  Filings postmarked at least two days prior to the time fixed by rule or law shall be deemed timely.

        (6)  Copies of the original notice of appeal shall, at or before the time of filing in the supreme court, be served by the minor or person acting for her on the clerk of the court from which the appeal is taken.  Service may be personal or by e-mail.  Upon receiving notice that an appeal has been filed pursuant to this rule, the superior court shall immediately transmit a copy of the recording of the hearing in the superior court to the supreme court, along with all pleadings and exhibits filed and considered in the proceedings in the lower court, if it has not already done so.  For the purposes of an appeal under this rule, the recording of the hearing in the superior court will be deemed to be the record of the proceeding, and a transcript is not required.

        (7)  The appealing party shall attach to the notice of appeal the decision below, the clerk’s written notice of the decision below, any order disposing of a timely-filed post-trial motion, and the clerk’s written notice of any order disposing of a timely-filed post-trial motion.

        (8)  The appealing party shall file a memorandum of law not to exceed 15 pages in length in support of her appeal with her original notice of appeal.  The memorandum of law need not comply with the requirements of a brief set forth in Supreme Court Rule 16, including the requirements that briefs be bound in pamphlet form and have covers.  The first page of the memorandum of law, however, shall contain: (i) the name of this court; (ii) the title of the case; (iii) the nature of the proceeding in this court and the name of the court below; (iv) the title of the document; and (v) the names, addresses, and New Hampshire Bar identification numbers of counsel representing the party on whose behalf the document is filed.   The memorandum of law shall contain: (i) the questions presented for review, expressed in terms and circumstances of the case but without unnecessary detail; (ii) a concise statement of the case and a statement of facts material to the consideration of the questions presented; (iii) the argument, exhibiting clearly the points of fact and of law being presented, citing the authorities relied upon; (iv) a conclusion, specifying the relief to which the party believes herself entitled; and (v) a statement as to whether the party requests oral argument.

        The notice of appeal or memorandum of law may be accompanied by an appendix containing copies of relevant documents that were filed in the superior court. 

        (9)  Oral argument shall be held only upon order of the supreme court.  Oral argument may be scheduled on short notice.

        (10)  The supreme court shall make a ruling within two court business days from the time that the notice of appeal containing all of the materials required by subsections (7) and (8) of this rule is filed pursuant to this rule.  If the superior court decision is vacated or reversed, the mandate will be issued immediately.

Rule 8. Interlocutory Appeal From Ruling.

(1) The supreme court may, in its discretion, decline to accept an interlocutory appeal, or any question raised therein, from a trial court order or ruling. The interlocutory appeal statement shall contain (a) a list of all parties of record and their counsel, the addresses of all parties and counsel, and the New Hampshire Bar identification numbers of counsel; (b) a statement of the facts necessary to an understanding of the controlling question of law as determined by the order or ruling of the trial court, and a statement as to whether any transcript will be necessary to decide the question if the interlocutory appeal is accepted by the court; (c) a statement of the question itself; (d) a statement of the reasons why a substantial basis exists for a difference of opinion on the question and why an interlocutory appeal may materially advance the termination or clarify further proceedings of the litigation, protect a party from substantial and irreparable injury, or present the opportunity to decide, modify or clarify an issue of general importance in the administration of justice; and (e) the signature of the trial court transferring the question.  In addition, if a transcript will be necessary to decide the question if the interlocutory appeal is accepted by the court, then the interlocutory appeal statement shall also contain a Transcript Order Form.  (The Transcript Order Form appears as part of the two Notice of Appeal Forms that may be found in the appendix to these rules.)

(2) The interlocutory appeal statement shall have annexed or appended to it a copy of the order or ruling from which interlocutory appeal is sought, a copy of any findings of fact and rulings of law relating to the order or ruling, and a copy of the pertinent text of the constitutions, statutes, ordinances, rules, regulations, insurance policies, contracts, or other documents involved in the case. If any documents are annexed or appended to the interlocutory appeal statement, then the interlocutory appeal statement shall contain a table of contents. If a copy of the pertinent text of the constitutions, statutes and other documents aggregates more than 5 pages, it may instead be filed as a separate appendix, including a table of contents referring to numbered pages. Note: Also see Rule 26(5).

(3) The moving party shall file the interlocutory appeal statement, accompanied by the required filing fee, within 10 days from the date on the trial court’s written notice to the parties that the trial court has signed the interlocutory appeal statement.

(4) The supreme court’s refusal to accept an interlocutory appeal shall be without prejudice to any challenge to the trial court’s order or ruling in a subsequent appeal pursuant to Rule 7.

Rule 9. Interlocutory Transfer without Ruling.

(1) The supreme court may, in its discretion, decline to accept an interlocutory transfer of a question of law without ruling by a trial court or by an administrative agency. The interlocutory transfer statement shall contain (a) a list of all parties of record and their counsel, the addresses of all parties and counsel, and the New Hampshire Bar identification numbers of counsel; (b) a statement of the facts necessary to an understanding of the controlling question of law as determined by the transferring trial court or administrative agency, and a statement as to whether any transcript will be necessary to decide the question if the interlocutory transfer is accepted by the court; (c) a statement of the question itself; (d) a statement of the reasons why a substantial basis exists for a difference of opinion on the question and why an interlocutory transfer may materially advance the termination or clarify further proceedings of the litigation, protect a party from substantial and irreparable injury, or present the opportunity to decide, modify or clarify an issue of general importance in the administration of justice; and (e) the signature of the trial court or of the administrative agency transferring the question.   In addition, if a transcript will be necessary to decide the question if the interlocutory transfer is accepted by the court, then the interlocutory transfer statement shall also contain a Transcript Order Form.  (The Transcript Order Form appears as part of the two Notice of Appeal Forms that may be found in the appendix to these rules.)

(2) The interlocutory transfer statement shall have annexed or appended to it a copy of the pertinent text of the constitutions, statutes, ordinances, rules, regulations, insurance policies, contracts, or other documents involved in the case. If any documents are annexed or appended to the interlocutory transfer statement, then the interlocutory transfer statement shall contain a table of contents. If a copy of the pertinent text of the constitutions, statutes and other documents aggregates more than 5 pages, it may instead be filed as a separate appendix, including a table of contents referring to numbered pages.

(3) The moving party shall file the interlocutory transfer accompanied by the required entry fee within 10 days from the date on the trial court’s or administrative agency’s written notice to the parties that the trial court or administrative agency has signed the interlocutory transfer.

Rule 10. Appeal from Administrative Agency.

(1) The supreme court may, in its discretion, decline to accept an appeal, or any question raised therein, from an order of an administrative agency, or may summarily dispose of such an appeal, or any question raised therein, as provided in Rule 25. Review of an order of an administrative agency, when authorized by law, shall be obtained by filing (a) an appeal under RSA 541; (b) in the case of an appeal from the department of employment security, an appeal under RSA 282-A:67; or (c) a petition for writ of certiorari if otherwise, accompanied by the required entry fee within the time prescribed by law. No entry fee will be required for an appeal filed by an individual claiming benefits under the unemployment compensation statute in accordance with RSA 282-A:158.

NOTE: To appeal to the supreme court from an administrative agency under RSA 541, the appealing party must have timely filed for a rehearing with the administrative agency. See RSA 541:4 and Appeal of White Mountains Education Association, 125 N.H. 771 (1984). The time period for the appeal does not begin to run until the administrative agency has acted upon the motion.

The appeal or petition, including any appeal from the department of employment security filed pursuant to RSA 282-A:67, shall as far as possible and in the order listed below:

    (a) Specify the names of the parties seeking review of the order, the names of all other parties of record, the names of all counsel, the addresses of all parties and counsel, and the New Hampshire Bar identification numbers of counsel for the parties seeking review of the order.

    (b) Contain, or have annexed or appended to it, a copy of the administrative agency’s findings and rulings, a copy of the order sought to be reviewed, a copy of the motion for rehearing and all objections thereto, and a copy of the order on the motion for rehearing. The appeal or petition, and any appendix that may be filed, shall contain a table of contents.

    (c) Specify the questions presented for review, expressed in the terms and circumstances of the case, but without unnecessary detail. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Only the questions set forth in the petition or fairly comprised therein will be considered by the court.

    (d) Specify the provisions of the constitutions, statutes, ordinances, rules, or regulations involved in the case, setting them out verbatim, and giving their citation. If the provisions to be set out verbatim are lengthy, their citation alone will suffice at that point and their pertinent text shall be annexed or appended to the petition. If the provisions aggregate more than 5 pages, their text may be filed as a separate appendix, including a table of contents referring to numbered pages.

    (e) Specify the provisions of insurance policies, contracts, or other documents involved in the case, setting them out verbatim. If the provisions to be set out verbatim are lengthy, their pertinent text shall be annexed or appended to the petition. If the provisions aggregate more than 5 pages, their text may be filed as a separate appendix, including a table of contents referring to numbered pages.

    (f) Set forth a concise statement of the case containing the facts material to the consideration of the questions presented, with appropriate references to the transcript, if any.

    (g) State the jurisdictional basis for the appeal, citing the relevant statutes or cases.

    (h) A direct and concise statement of the reasons why a substantial basis exists for a difference of opinion on the question and why the acceptance of the appeal would protect a party from substantial and irreparable injury, or present the opportunity to decide, modify or clarify an issue of general importance in the administration of justice.

    (i) A statement that every issue specifically raised has been presented to the administrative agency and has been properly preserved for appellate review by a contemporaneous objection or, where appropriate, by a properly filed pleading.

(2) The order sought to be reviewed or enforced, the findings and rulings, or the report on which the order is based, and the pleadings, evidence, and proceedings before the agency shall constitute the record on appeal.

NOTE:  The moving party in any appeal brought pursuant to RSA chapter 541 is required initially to bear the full, reasonable cost of preparing a transcript for inclusion in the record.  Appeal of City of Manchester, 149 N.H. 283, 290 (1999).  To request that a transcript be prepared and included in the record on appeal, the moving party should consult the administrative agency’s regulations and/or RSA 541-A:31.  Unless the moving party requests that a transcript be prepared, in compliance with the administrative agency’s regulations and/or RSA 541-A:31, no transcript will be prepared for inclusion in the record.

Absent a transcript of the proceedings below, the supreme court generally will assume that the evidence was sufficient to support the result reached by the administrative agency.  If the appealing party fails to ensure that a transcript is prepared, the supreme court may not review issues that the appealing party has raised.  Cf. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248 (2004).

(3) The administrative agency, complying with the provisions of Rule 6(2) as to form, shall file the record with the clerk of the supreme court as early as possible within 60 days after it has received the supreme court’s order of notice. The original papers in the agency proceeding or certified copies may be filed. At the beginning of the record there shall be inserted a table of contents with references to the page of the record at which each item listed in the table of contents begins.

(4) The parties may designate by stipulation filed with the clerk of the supreme court that no part, or that only certain parts, of the record shall be filed with the court.

(5) If anything material to any party is omitted from the record by error or accident or is misstated in the record, the parties by stipulation may provide, or the supreme court on motion or on its own initiative may direct, that the omission or misstatement be corrected and, if necessary, that a supplemental record be prepared and filed.

(6) In lieu of the record as defined in section (2) of this rule, the parties may prepare and sign a statement of the case showing how the questions of law transferred arose and were decided, and setting forth only so many of the facts as are essential to a decision of the questions presented.

(7) Notice by serving, delivering or mailing a copy of the appeal or petition upon all parties or opponents below as well as the agency involved and the attorney general is the responsibility of the moving party, and a certificate of compliance stating their names and addresses must be filed with the petition.

(8) If a timely appeal or petition is filed by a party appealing from an administrative agency, any other party may file a cross-appeal or cross-petition within 10 days from the date on which the appeal or petition was docketed with this court, and shall pay a filing fee therewith, provided that the party filing the cross-appeal or cross-petition must have timely filed any required motion for rehearing with the administrative agency.

Rule 11. Petition for Original Jurisdiction.

(1) Petitions requesting this court to exercise its original jurisdiction shall be granted only when there are special and important reasons for doing so. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons that will be considered: When a trial court or administrative agency has decided a question of substance not theretofore determined by this court; or has decided it in a way probably not in accord with applicable decisions of this court; or has so far departed from the accepted or usual course of judicial or administrative agency proceedings as to call for an exercise of this court’s power of supervision.

(2) A petition shall, as far as possible, contain in the order stated:

(a) A copy of the decision sought to be reviewed, if there is such a decision. The decision shall be annexed or appended to the petition;

(b) The questions presented for review, expressed in the terms and circumstances of the case, but without unnecessary detail. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Only the questions set forth in the petition or fairly comprised therein will be considered by the court;

(c) The provisions of the constitutions, statutes, ordinances, rules, or regulations involved in the case, setting them out verbatim, and giving their citation. If the provisions to be set out verbatim are lengthy, their citation alone will suffice at that point, and their pertinent text shall be annexed or appended to the petition. If any documents are annexed or appended to the petition, then the petition shall contain a table of contents. If the provisions aggregate more than 5 pages, their text may be filed as a separate appendix, including a table of contents referring to numbered pages;

(d) The provisions of insurance policies, contracts, or other documents involved in the case, setting them out verbatim. If the provisions to be set out verbatim are lengthy, their pertinent text shall be annexed or appended to the petition. If any documents are annexed or appended to the petition, then the petition shall contain a table of contents. If the provisions aggregate more than 5 pages, their text may be filed as a separate appendix, including a table of contents referring to numbered pages;

(e) A concise statement of the case containing the facts material to the consideration of the questions presented, with appropriate references to the appendix, if any;

(f) A concise statement specifying the stage of the proceedings in the trial court or administrative agency at which the questions sought to be reviewed were raised, the manner in which they were raised, and the way in which they were passed upon by the trial court or administrative agency;

(g) A direct and concise argument amplifying the reasons relied upon for petitioning this court to exercise its original jurisdiction (see section 1 above) and setting forth why the relief sought is not available in any other court or cannot be had through other processes;

(h) The jurisdictional basis for the petition, citing the relevant statutes or cases;

(i) A statement, if applicable, that every issue specifically raised has been presented to the trial court or administrative agency and has been properly preserved for appellate review by a contemporaneous objection or, where appropriate, by a properly filed pleading;

(j) A list of all parties of record and their counsel, the addresses of all parties and counsel, and the New Hampshire Bar identification numbers of counsel for the moving party;

(k) A statement as to whether a transcript of any proceedings will be necessary if the petition is accepted for further review by the court.  If a transcript will be necessary if the petition is accepted, then the petition shall also contain a Transcript Order Form.  (The Transcript Order Form appears as part of the two Notice of Appeal Forms that may be found in the appendix to these rules.)

All argument in support of the petition shall be set forth in the body of the petition. No separate brief in support of the petition shall be filed, and the court shall not consider any supporting brief.

(3) The failure of a petition to present with accuracy, brevity and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying the petition.

(4) If several cases involve identical or closely related questions, a single petition covering all the cases shall suffice.

(5) The petition shall be filed with the clerk of this court, accompanied by the filing fee. If the action is against the State, the petition must be served on the attorney general. Notice by serving, delivering or mailing a copy of the petition upon all parties or opponents below as well as the court or agency involved is the responsibility of the moving party, and a certificate of compliance stating their names and addresses must be filed with the petition.

(6) If the supreme court is of the opinion that the petition should not be granted, it shall deny the petition. The supreme court may, in its discretion, accept and schedule for briefing, with or without oral argument, any question presented in the petition.

The supreme court may order that an answer to the petition be filed within the time fixed by the order. Two or more parties may answer jointly. Persons named as parties but having no interest in the outcome of the petition shall notify the clerk of the supreme court in writing that they have no interest in the proceedings and in the outcome.

Rule 12. REQUESTS FOR CONFIDENTIALITY OF CASE RECORDS; ACCESS TO CASE RECORDS

(1) Supreme Court Records Subject to Public Inspection.

(a) General Rule. In all cases in which relief is sought in the supreme court, all pleadings, docketed entries, and filings related thereto (hereinafter referred to as “case records”) shall be available for public inspection unless otherwise ordered by the court in accordance with this rule.

(b) Exceptions. The following categories of case records are not available for public inspection:

(1) records of juvenile cases, including cases of delinquency, abuse or neglect, children in need of services, termination of parental rights, and adoption, which by statute are confidential;

(2) records of guardianship cases filed under RSA chapter 463, but only to the extent that such records relate to the personal history or circumstances of the minor and the minor’s family, see RSA 463:9; 

(3) records of guardianship cases filed under RSA chapter 464-A, but only to the extent that such records directly relate to alleged specific functional limitations of the proposed ward, see RSA 464-A:8; 

(4) applications for a grand jury and grand jury records, which by statute and common law are confidential;

(5) records of other cases that are confidential by statute, administrative or court rule, or court order.

(c) Burden of Proof. The burden of proving that a case record or a portion of a case record should be confidential rests with the party or person seeking confidentiality.

(d) Notwithstanding anything in this rule to the contrary, the supreme court may make public any order or opinion of the supreme court dismissing, declining, summarily disposing of, or deciding any case.  Information which would compromise the court’s determination of confidentiality, e.g., the name of a juvenile, shall be omitted or replaced by a descriptive term.

(2) Procedure For Requesting Confidentiality of a Case Record or a Portion of a Case Record in a Supreme Court Case.

(a) Case Record or Portion of Case Record That Has Already Been Determined to be Confidential.  The appealing party shall indicate on the notice of appeal form or in the appeal document, e.g., appeal from administrative agency, that the case record or a portion of the case record was determined to be confidential by the trial court, administrative agency, or other tribunal, and shall cite the authority for confidentiality, e.g., the statute, administrative or court rule, or court order providing for confidentiality. Upon filing, the portion of the case record determined to be confidential by the trial court, administrative agency, or other tribunal shall remain confidential, unless and until the court determines on its own motion or the motion of a party that there is no statute, administrative or court rule, or other compelling interest that requires that the case record or portion of the case record be kept confidential.  Whenever a party files a pleading or other document that is confidential in part or in its entirety, the party shall identify, by cover letter or otherwise, in a conspicuous manner, the portion of the materials filed that is confidential.

(b) Cases in Which There Has Been No Prior Determination of Confidentiality. The following procedure shall be followed when a party or other person with standing seeks to have the case record or a portion of the case record determined to be confidential by the supreme court:

(1) Any party or other person with standing who seeks a determination that a case record or a portion of a case record is confidential shall file a motion to seal the case record or the portion of the case record in question. The motion shall state the authority for confidentiality, i.e., the statute, administrative or court rule providing for confidentiality, or the privacy interest or circumstance that requires confidentiality. Upon filing of the motion to seal, the case record or the portion of the case record which is the subject of the motion shall be kept confidential pending a ruling on the motion.

(2) Within 30 days of filing, a motion to seal will be reviewed by a single justice of the court who shall determine whether the case record or the portion of the case record that is the subject of the motion shall be confidential or who may refer the motion to the full court for a ruling.

(3) An order will be issued setting forth the ruling on the motion to seal.

(c) Court Action When Confidentiality is Required.

(1) The failure of a party or other person with standing to request that a case record or a portion of a case record be confidential shall not preclude the court from determining on its own motion that a statute, administrative or court rule, or other compelling interest requires that a case record or a portion of a case record proceeding be kept confidential.

(2) Before sealing a case record or a portion of a case record other than a case record or a portion of a case record that was determined to be confidential by the trial court, administrative agency, or other tribunal, a single justice or the court shall determine that there is a basis for keeping the case record confidential.

(3) If a single justice or the court determines that a case record or a portion of a case record should be confidential, an order will be issued setting forth the ruling.

(d) Access to Supreme Court Orders On Confidentiality.  Every order of the supreme court that a case record or a portion of a case record is confidential shall be available for public inspection. Information which would compromise the court’s determination of confidentiality, e.g., the name of a juvenile, shall be redacted.

(3) Procedure For Seeking Access To Case Records That Have Been Determined to be Confidential.

(a) A person who is neither a party nor counsel in a case and who seeks access to a case record or portion of a case record that has been determined to be confidential shall file a petition with the court requesting access to the record in question.

(b) Upon receipt of the petition, an order of notice shall be issued to all parties and other persons with standing in the case.

(c) A single justice of the supreme court or a judicial referee appointed by the court shall examine the case record in question to determine whether there is a basis for nondisclosure.

(d) An order shall be issued setting forth the justice’s or referee’s ruling on the petition, which shall be made public.  In the event that the justice or referee determines that the records are confidential, the order shall include findings of fact and rulings of law that support the decision of nondisclosure.

(e) Within 10 days of the date of the clerk’s notice of the justice’s or referee’s decision, any party or person with standing aggrieved by the decision may file a motion for review by the full court.

Rule 12-A. Mediation

(1)  Cases pending at the supreme court may be referred to the office of mediation and arbitration for mediation as set forth in this rule. All mediation will be conducted by a retired full-time judge, retired full-time marital master, or other qualified mediator as determined by the supreme court in conjunction with the office of mediation and arbitration.

(2)  With the exception of cases listed in the following paragraph, cases accepted by the court may be referred to the office of mediation and arbitration for mediation upon the agreement of all parties. 

The following cases are not eligible for mediation:  criminal cases; domestic violence cases; election cases; guardianship cases; involuntary commitment cases; juvenile cases, including abuse and neglect, CHINS, delinquency, and termination of parental rights cases; cases brought by a prisoner in the custody of a correctional institution; and stalking cases.

(3)  When an acceptance order is issued in a case that appears to be eligible for mediation under this rule, the clerk shall provide the moving party with a mediation agreement form.  If all parties agree to mediation, the moving party shall submit the completed mediation agreement form to the court within 15 days of the date of the acceptance order, and shall send a copy of the completed form to all parties.  In a case in which more than one appeal has been filed, the order shall indicate who will be considered the moving party for the purpose of submitting the mediation agreement form.

(4)  Upon receipt of a completed mediation agreement form, an order will be issued by the clerk referring the case to the OMA for mediation.

(5)  Any order referring a case to mediation shall impose a fee of $225.00 per party to be paid to the mediation and arbitration fund.  This fee will be used to pay mediator compensation, and is not refundable.   On its own motion, or upon motion of the parties, the court may order an individual $225.00 fee to apply to multiple plaintiffs or defendants, if under the circumstances of the case, the court determines that the per party fee would cause undue hardship if it were applied to individual parties, or if one fee for multiple parties on the same side is deemed equitable by the court.  Parties who are indigent may petition the court for waiver of the fee.

(6)  Unless the order referring a case for mediation provides otherwise, when a case is referred to mediation, further processing of the case by the court will be suspended for a period of 90 days.  If the ADR coordinator or the mediator believes that additional time is needed to complete the mediation, the ADR coordinator or mediator may file a notice with the court of an automatic extension of no more than 30 days.  Upon filing of the notice, further processing of the case shall be suspended for the additional time without further order of the court.  Extensions of time of more than 30 days may be requested only by motion to the court and are not favored.

(7) After a case has been referred to mediation, the office of mediation and arbitration shall be responsible for selecting a mediator and scheduling a mediation session.  The parties shall comply with the rules for appellate mediation.  All communications and filings of the parties related to the mediation session shall be sent to the office of mediation and arbitration and shall not be filed with the court, with the exception of filings relating to whether the case should be remanded to the court to resume processing of the case or requesting an extension of time to complete mediation.

(8) If the ADR coordinator determines at any time after a case has been referred that the case should not be mediated, the ADR coordinator shall notify the clerk in writing.  Thereafter, an order will be issued indicating that processing of the case will resume in accordance with Supreme Court rules.

(9) Within 15 days after the conclusion of mediation, the mediator shall file a written report with the court of the results of the mediation.  The report shall state whether a full or partial settlement was reached and describe the effect of the settlement on the pending case.  The report shall not disclose the mediator’s assessment of any aspect of the case or confidential matters discussed during the session or sessions.

(10) If the mediator reports that there has not been a full settlement of a case referred for mediation, or upon expiration of the period during which processing of the case was suspended, the court ordinarily will resume processing the case in accordance with Supreme Court rules unless circumstances would make this inappropriate.

(11)  Mediation proceedings and information relating to those proceedings shall be confidential.  Information submitted or discussed during mediation shall not be disclosed or used in any subsequent proceeding.  Statements made and documents prepared by a party, attorney, or other participant in aid of such proceeding shall be privileged and shall not be disclosed to any court or arbitrator or construed for any purpose as an admission against interest. Mediation proceedings under this rule are deemed settlement conferences consistent with the Rules of Evidence.  Parties shall not introduce into evidence, in any subsequent proceeding, the fact that there was a mediation or any other material concerning the conduct of the mediation except as required by the Rules of Professional Conduct or the Mediator Standards of Conduct.  Evidence that would otherwise be admissible in another proceeding shall not be rendered inadmissible as a result of its use in mediation.

(12)  The ADR coordinator may adopt procedural rules to govern the appellate mediation process.

Rule 12-B. Scheduling Order: Prehearing Evaluation Conference.

(1) The processing of a case shall begin upon the filing of the case with the clerk of the supreme court. The parties shall await a scheduling order, a prehearing evaluation conference order, a declination of acceptance order, or an order of summary disposition. The clerk shall issue a scheduling order as soon as practicable, unless a prehearing evaluation conference has been arranged, in which instance the scheduling order may be entered as part of the conference order.

Scheduling orders may, as appropriate to the circumstances, set forth the dates on or before which the record, the opening brief, the opposing brief, and the appendices in the briefs or a separate appendix shall be filed; set forth whether a transcript shall be prepared and the extent of any such transcript; and may set forth such other matters as shall be deemed desirable or necessary. The court may, in a scheduling order or other order, define or limit the issues which the court will consider on the appeal.

(2) The clerk may direct the lawyers to attend a prehearing evaluation conference to be held as soon as practicable before a justice of the supreme court or a retired justice designated by the chief justice or before the clerk, deputy clerk, or staff attorney to consider the possibility of settlement, the simplification of issues, and any other matters that the designated justice or the clerk, deputy clerk, or staff attorney may deem to be helpful in expediting the processing of the case. The clerk may also direct the lawyers to arrange for their clients’ attendance at the conference or for the lawyers to attend with authority in writing from their clients to settle the case.

At the conclusion of the conference, the designated justice, clerk, deputy clerk, or staff attorney shall enter a conference order that shall recite the action taken at the conference and the agreements made by the parties on any of the matters considered, and that shall limit the issues. The order shall control the subsequent course of the case, but may be modified to prevent manifest injustice.

(3) If a party or the lawyer for the party fails to comply with this rule or to comply with a conference order, the supreme court may impose sanctions or dismiss the case, or both.

(4) The clerk may direct that a prehearing evaluation conference be held at any time prior to oral argument or submission of a case on the briefs and without oral argument.

(5) The prehearing evaluation conference justice may decide not to hear or to take part in the deliberations on, and disposition of, the case on the merits.

Rule 12-C. JUDICIAL REFEREE PANELS [Repealed.]

[Repealed effective July 1, 2006.]

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)  The court may direct that the matter be submitted on briefs, without oral argument, to a 3JX panel.  See Rule 18(1). 

    (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.  

    (a)  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 decided by the full court.  The panel may order that a case be decided by 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 decision by the full court is ordered, the court may issue an additional order setting forth matters to be reargued or rebriefed.

    (b)  Unless the court orders otherwise, whenever a 3JX panel directs after oral argument that a case be decided by the full court, no further oral argument shall be held and the members of the court who were not on the 3JX panel shall listen to the recording of the 3JX oral argument before deciding the case.   

(3)   Non-precedential Status of Orders.  An order issued by a 3JX panel shall have no precedential value, but it may, nevertheless, be cited or referenced in pleadings or rulings in any court in this state, so long as it is identified as a non-precedential order and so long as it was issued in a non-confidential case; provided, however, that an 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. All citations to non-precedential orders shall identify the court, docket number and date.

(4)  [Repealed.]   

(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 9,500 words, 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 3,000 words.

    (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.

Rule 13. The Record.

(1) The papers and exhibits filed and considered in the proceedings in the trial court or administrative agency, the transcript of proceedings, if any, and the docket entries of the trial court or administrative agency shall be the record in all cases entered in the supreme court.

(2) Generally, the trial court record is not automatically transferred to the supreme court.  Unless a party takes appropriate action to ensure that the record is before the supreme court either by filing an appendix pursuant to Rule 13(3) or by filing a motion pursuant to Rule 13(4), then the record may not be before the supreme court to be considered. The moving party shall be responsible for ensuring that all or such portions of the record relevant and necessary for the court to decide the questions of law presented by the case are in fact provided to the supreme court.  The supreme court may dismiss the case or decline to address specific questions raised on appeal for failure to comply with this requirement.

(3) The supreme court will not ordinarily review any part of the record that has not been provided to it in an appendix by a party or transmitted to it by the trial court or administrative agency.  See Rules 13(2), 17(1).  Unless a party believes that providing a copy in an appendix of a paper or exhibit filed below would be impracticable or inadequate for appellate review, a party seeking to provide a paper or exhibit to the supreme court shall file a copy of the paper or exhibit in an appendix to the party’s brief, which shall be filed on or before the date established for filing the party’s brief.

(4) If a party believes that providing a copy in an appendix of any papers or exhibits filed below would be impracticable or inadequate for appellate review, the party shall file a motion with the supreme court on or before the date established for filing the party’s brief, requesting that the supreme court order the trial court or administrative agency to transmit the papers or exhibits in question to the supreme court.  The motion shall designate the papers and exhibits in question, and shall show cause why providing a copy in an appendix would be impracticable or inadequate for appellate review.  

(5) Neither the original nor a reproduction of the record nor any part of the record shall be transmitted to the supreme court by the trial court or administrative agency from which the questions of law have been transferred, unless a supreme court order, rule, or form expressly requires such a transmittal.

(6) In lieu of the record as defined in section (1) of this rule, the parties may prepare and sign an original and 8 copies of a statement of the case showing how the questions of law transferred arose and were decided, and setting forth only so many of the agreed facts as are essential to a decision of the questions presented.

Rule 14. Transmittal of the Record.

(1) The moving party shall comply with the provisions of Rule 13 and shall take any other action permitted under these rules to assemble and transmit the record of proceedings in the trial court or administrative agency.

(2) When the supreme court orders the clerk of the trial court or administrative agency to transmit the record necessary for the determination of the questions of law transferred, the clerk shall number the documents constituting the record and shall transmit with the record a list of the documents correspondingly numbered and identified with reasonable definiteness.

(3) Documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted unless the supreme court orders the clerk to do so. A party must make advance arrangements with the clerk or administrative agency from which the questions of law have been transferred for the transportation and receipt of exhibits of unusual bulk or weight.

(4) The supreme court may, on motion for cause shown, extend the time for transmitting the record or may permit the record to be transmitted and filed after the expiration of the time allowed or fixed. The court may require the record to be transmitted at any time before the time allowed or fixed.

(5) The parties may agree by written stipulation filed in the trial court or administrative agency that designated parts of the record shall be retained in the trial court or administrative agency.

Rule 15. Transcripts.

(1) The parties shall attempt to enter into stipulations, such as an agreed statement of facts, that will reduce the size of transcripts or avoid them completely. If such a stipulation is entered into, an original and 8 copies thereof must be filed with the clerk’s office if it is not included in the notice of appeal.

(2) (a) Mandatory appeals. The moving party shall have completed the notice of appeal form which includes the transcript information, including the dates of the proceedings to be transcribed, the length of the proceedings, and the deposit required.  A transcript of the parts of the proceedings necessary for appeal and not already on file in the trial court shall be prepared.  The supreme court clerk’s office shall issue a scheduling order notifying the moving party that within 15 days from the date on the written notice, the moving party must pay the deposit to the transcriber designated by the court to prepare the transcript or to the transcriber’s agent.  If payment is not received by the date specified, the appeal may be deemed waived and the case dismissed.  Upon timely receiving the required deposit, the transcriber shall proceed with the transcription.  If the required deposit is not timely received, the transcriber shall immediately so notify the clerk of the supreme court.  For the purposes of initial assessment of transcription costs pursuant to this rule, any party filing an appeal may be considered a moving party, and in cases of multiple appeals (including cross-appeals), the clerk, within the clerk’s discretion, may assess transcription costs as justice requires.

    (b) Other appeals from trial court decisions on the merits. The moving party shall have completed the notice of appeal form which includes the transcript information, including the dates of the proceedings to be transcribed, the length of the proceedings, and the deposit required.  If the appeal is accepted by the court for briefing, the supreme court clerk’s office shall issue a scheduling order notifying the moving party that within 15 days from the date on the written notice, the moving party must pay the deposit to the transcriber designated by the court to prepare the transcript or to the transcriber’s agent.  If payment is not received by the transcriber by the date specified, the appeal may be deemed waived and the case dismissed.  Upon timely receiving the required deposit, the transcriber shall proceed with the transcription.  If the required deposit is not timely received, the transcriber shall immediately so notify the clerk of the supreme court.  For the purposes of initial assessment of transcription costs pursuant to this rule, any party filing an appeal may be considered a moving party, and in cases of multiple appeals (including cross-appeals), the clerk, within the clerk’s discretion, may assess transcription costs as justice requires.

(3) If the moving party intends to argue in the supreme court that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the moving party shall include in the record a transcript of all evidence relevant to such finding or conclusion.  Unless otherwise ordered by the supreme court, the transcript shall contain all the oral proceedings except opening statements, medical testimony, arguments, and charge.

(4) Unless the parties agree, or the court otherwise orders, the transcriber shall produce an electronic version of the transcript for the court, which shall be deemed the official transcript, as well as a paper copy of the transcript.  The transcriber shall also produce an electronic copy of the transcript for each party to the case requiring a transcript.  The transcript shall be completed as early as possible within 45 days after receiving the recording of the proceedings from the trial court clerk.  Requests for extensions of time in which to prepare a transcript shall not be favored, but the transcriber may request that the supreme court grant an extension of time.  Such a request shall give the reasons for the need for an extension.

(5) The supreme court may order that the preparation of a transcript in a case be given immediate attention.

Comment

  It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial.  Absent a transcript of the proceedings below, the supreme court will generally assume that the evidence was sufficient to support the result reached by the trial court.  It is the burden of the appealing party to provide the supreme court with a record sufficient to decide the issues on appeal, as well as to demonstrate that those issues were properly raised before the trial court.  In deciding whether a transcript of the trial court’s proceedings is necessary, the appealing party should keep in mind that the appealing party is responsible for providing the supreme court with a sufficient record to decide the issues on appeal.  If the appealing party fails to provide a sufficient record, the appeal may be dismissed or the supreme court may not review an issue that the appealing party has raised.  See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248 (2004).

Rule 16. Briefs.

(1) Briefs may be prepared using a printing, duplicating or copying process capable of producing a clear letter quality black image on white paper, but shall not include ordinary carbon copies. If briefs timely filed do not conform to this rule or are not clearly legible, the clerk of the supreme court may require that new copies be substituted, but the filing shall not thereby be deemed untimely.

Each brief shall be in pamphlet form upon good quality, nonclinging paper 8 ½ by 11 inches in size, with front and back covers of durable quality. Each brief shall have a minimum margin of one and one-half (1½) inch on all sides and shall be firmly bound at the left margin. Any metal or plastic spines, fasteners or staples shall be flush with the covers and shall be covered by tape. The covers shall be flush with the pages of the case. See also Rule 26(5).

If briefs are produced by commercial printing or duplicating firms, or, if produced otherwise and the covers to be described are available, the cover of the brief of the appealing party should be blue; that of the opposing party, red; that of an intervenor or amicus curiae, green; and that of any reply brief, including the answering brief in accordance with Rule 16(8), gray. The cover of the appendix, if separately printed, should be white.

The court will not accept any other method of binding unless prior approval has been obtained from the clerk of the supreme court.

(2) The front covers of the briefs and of appendices, if the appendices are separately produced, shall contain: (a) the name of this court and the docket number of the case; (b) the title of the case; (c) the nature of the proceeding in this court, e.g., appeal by petition pursuant to RSA 541: 6, and the name of the court or agency below; (d) the title of the document, e.g., brief for plaintiff; (e) the names, addresses and New Hampshire Bar identification numbers of counsel representing the party on whose behalf the document is filed; and (f) the name of counsel who is to argue the case. See form in appendix.

(3) So far as possible, the brief of the moving party on the merits shall contain in the order here indicated:

    (a) A table of contents, with page references, and a table of cases listed alphabetically, a table of statutes and other authorities, with references to the pages of the briefs where they are cited.

    (b) The questions presented for review, expressed in terms and circumstances of the case but without unnecessary detail. While the statement of a question need not be worded exactly as it was in the appeal document, the question presented shall be the same as the question previously set forth in the appeal document. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. The moving party may argue in the brief any question of law not listed in the moving party’s appeal document, but only if the supreme court has granted a motion to add such question, and the moving party has presented a record that is sufficient for the supreme court to decide the questions presented. Motions to add a question may be filed only by a party who filed an appeal document (including a party who filed a cross-appeal), and shall be filed at least 20 days prior to the due date of the moving party’s brief.

    After each statement of a question presented, counsel shall make specific reference to the volume and page of the transcript where the issue was raised and where an objection was made, or to the pleading which raised the issue. Failure to comply with this requirement shall be cause for the court to disregard or strike the brief in whole or in part, and opposing counsel may so move within ten days of the filing of a brief not in compliance with this rule.

    (c) The constitutional provisions, statutes, ordinances, rules, or regulations involved in the case, setting them out verbatim, and giving their citation. If the provisions involved are lengthy, their citation alone will suffice at that point, and their pertinent text shall be set forth in an appendix.

    (d) A concise statement of the case and a statement of facts material to the consideration of the questions presented, with appropriate references to the appendix or to the record.

    (e) A summary of argument, suitably paragraphed, which should be a succinct, but accurate and clear, condensation of the argument made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged.

    (f) The argument, exhibiting clearly the points of fact and of law being presented, citing the authorities relied upon.

    (g) A conclusion, specifying the relief sought by the party.

    (h) A statement that the party waives oral argument or that the party requests oral argument.  A party requesting oral argument may designate whether the party requests oral argument before a 3JX panel or the full court, and may set forth reasons why the party believes oral argument is necessary or will be helpful to the court in deciding the case.  If a party requests oral argument before the full court, and if the party believes that more than 15 minutes to a side will be necessary for oral argument, the party may set forth why the party believes that good cause exists for granting additional time.  The party shall designate the lawyer to be heard if there are two or more lawyers on the party’s side.

    (i) A copy of each decision below that is being appealed or reviewed.  If one or more of the appealed decisions are in writing, a copy of each written decision shall be submitted at the time of brief filing in either one of the following two ways: (1) as the first item(s) in an addendum that is part of the brief itself, with the addendum’s table of contents clearly identifying each appealed decision as such and with the addendum’s page numbering sequentially following the last page number of the brief; or (2) in a separate appendix that contains no documents other than appealed decisions and that conforms with the page-numbering requirements of Rule 17. The appealing party shall, immediately before the signature line on the brief, certify either that each appealed decision that is in writing is being submitted at the time of brief filing, or that no appealed decision is being submitted because no appealed decision is in writing. If an appealed decision is in writing, the appealing party’s certification shall identify the specific manner in which the party has complied with this rule concerning submission of the appealed decision. Any brief not conforming with this rule, including a brief whose addendum or appendix intermixes the appealed decision(s) among other documents from the record, may be rejected.

(4)(a) The brief of the opposing party shall conform to the foregoing requirements, except that no statement of the case need be made beyond what may be deemed necessary in correcting any inaccuracy or omission in the statement of the other side, and except that subsections (b), (c), and (h) of subsection (3) need not be included unless the opposing party is dissatisfied with their presentation by the other side.

    (b) Instead of a brief, the opposing party in a mandatory appeal may file a memorandum of law not to exceed 4,000 words in length. A memorandum of law need not comply with the requirements for a brief set forth in this rule, including the requirements that briefs be bound in pamphlet form and have covers. A memorandum of law, however, shall contain: (i) the argument, exhibiting clearly the points of fact and of law being presented, citing the authorities relied upon; and (ii) a conclusion, specifying the relief sought by the party. A party who files a memorandum of law shall be deemed to have consented to the waiver of oral argument.

(5) Reply briefs shall conform to such parts of this rule as are applicable to the briefs of an opposing party, but need not contain a summary of argument, regardless of their length, if appropriately divided by topical headings.

(6) Briefs and memoranda of law must be compact, logically arranged with proper headings, concise and free from burdensome, irrelevant, and immaterial matter. Briefs and memoranda of law not complying with this section may be disregarded and stricken by the supreme court.

(7) Unless specially ordered otherwise, the original and 8 copies of the opening brief shall be filed with the clerk of the supreme court, in addition, 2 copies with counsel for each party separately represented, 2 copies with each self-represented party, and like distribution shall be made of the opposing brief, opposing memorandum of law, or any other brief, all within the times specified in the applicable scheduling order.

The party filing the opening brief may similarly file, and make like distribution of, a reply brief, which shall be filed by the earlier of 20 days following the submission of the opposing brief or opposing memorandum of law, or 10 days before the date of oral argument. A reply brief may be filed after the expiration of the applicable time period only by leave of court. Responses to a reply brief shall not ordinarily be allowed. No response to a reply brief may be filed except by permission of the court received in advance.

Whenever a party desires to present late authorities, newly enacted legislation, or other intervening matters that were not available in time to have been included in the party’s brief, the party may similarly file, and make like distribution of, such new matters up to and including the day of oral argument, or by leave of the supreme court thereafter.

The court shall not consider any brief or memorandum of law after a case has been argued or submitted, unless the court has granted to the party offering to file the brief or memorandum of law special leave to do so in advance.

(8) If a cross-appeal is filed, the clerk shall determine which party shall be deemed the moving party for the purposes of this rule, unless the parties agree and so notify the court. The brief of the opposing party shall contain the issues and argument involved in the opposing party’s appeal as well as the answer to the brief of the moving party. The moving party may file an answering brief within the time specified in the scheduling order.

(9) All references in a brief or memorandum of law to the appendix or to the record must be accompanied by the appropriate page number. See Rule 17.

(10) The party filing a brief or memorandum of law shall conclude the pleading with a certification that the party has hand-delivered or has sent by first class mail two copies of the pleading to the other counsel in the case.

The name of the party filing the brief or memorandum of law and the name of the lawyer representing the party shall appear in type at the conclusion of the pleading, and the lawyer shall sign the pleading. Names of persons not members of the bar or not parties shall not appear on the notice of appeal, the brief, the memorandum of law, or in the appendix unless they have complied with Rule 33 and received prior written approval of the court. See Rule 33(2).

If an attorney provided limited representation to an otherwise unrepresented party by drafting a brief or memorandum of law to be filed by such party in a proceeding in which the attorney is not entering any appearance or otherwise appearing in the case in the supreme court, the attorney is not required to disclose the attorney’s name on such pleading to be used by that party; any pleading drafted by such limited representation attorney, however, must conspicuously contain the statement “This pleading was prepared with the assistance of a New Hampshire attorney.”  The unrepresented party must comply with this required disclosure.

(11) Each brief and memorandum of law shall consist of standard sized typewriter characters or size 13 font produced on one side of each leaf only. The lines of text shall be spaced at a setting of 1.5. The text shall be left-aligned only. The pages of the brief shall be sequentially numbered, beginning with the cover page as page 1 and using only Arabic numerals for page numbers (e.g. 1, 2, 3), including for the table of contents and table of authorities. The page number may be suppressed and need not appear on the cover page.

Except by permission of the court received in advance, no reply brief (or response thereto) shall exceed 3,000 words, and, except in a case with a cross-appeal, no other brief shall exceed 9,500 words exclusive of pages containing the table of contents, tables of citations, and any addendum containing pertinent texts of constitutions, statutes, rules, regulations, and other such matters.  If a cross-appeal is filed, the opening brief and answering brief of the moving party shall not exceed 9,500 words, and the opposing brief of the cross-appellant shall not exceed 14,000 words, exclusive of pages containing the table of contents, tables of citations, and any addendum containing pertinent texts of constitutions, statutes, rules, regulations, and other such matters.  The cross-appellant may file a reply brief, which shall not exceed 3,000 words.

(12)  Failure of the appealing party to file a brief shall constitute a waiver of the appeal and the case shall be dismissed.

Rule 16-A. Plain Error.

A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court or the supreme court.

Rule 17. Appendix to Brief.

(1) The court will not ordinarily review any part of the record that has not been provided to it in an appendix or transmitted to it. See Rule 13(3).

If there is to be an appendix of relevant documents or pleadings, the parties are encouraged to agree on its contents as an addendum to the moving party’s brief or as a separate submission, if voluminous. If the moving party’s appendix is not deemed to be sufficient, the opposing party may prepare and file an appendix of such additional parts of the record as an addendum to the opposing party’s brief or memorandum of law or, if voluminous, as a separate submission.

(2) The original and 8 copies of an appendix meeting the requirements of Rule 6(2) shall be filed in the office of the clerk of the supreme court and its pages shall be sequentially numbered, beginning with the cover page as page 1 and using only Arabic numerals for page numbers (e.g., 1, 2, 3), including for the table of contents. The page number may be suppressed and need not appear on the cover page. The cover of the appendix should be white.

(3) The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matter to be included in the appendix unnecessarily, such as the full text of decisions of this court or irrelevant pleadings, the supreme court may impose the cost of producing such parts on that party, even though he or she may be the prevailing party.

(4) At the beginning of the appendix there shall be inserted a table of contents with references to the page of the appendix at which each item listed in the table of contents begins. When matter contained in the transcript of proceedings is set out in the appendix, the page of the transcript at which such matter may be found shall be indicated in brackets immediately before the matter that is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters, e.g., captions, subscriptions, acknowledgments, shall be omitted.

(5) To facilitate reading multi-volume appendices in electronic form:

(a) Each volume of the appendix shall be designated by a Roman numeral on the cover and shall be separately paginated, beginning with the cover page as page 1. All subsequent pages shall be numbered consecutively, including the table of contents, with Arabic numerals only. Page numbering shall not continue across mulitiple volumes. For example, a brief with a two-volume appendix would cite to both the particular appendix volume and its page number as “Apx. I at 117” and “Apx. II at 24.”

(b) The first volume of the appendix shall include a complete table of contents referencing all volumes of the appendix, and each individual volume shall include a table of contents for that volume.

Rule 18. Oral Argument.

(1) If the court determines that oral argument shall be held in a case, the parties shall be so notified.  Oral argument will probably not be held if the questions of law are not novel, and the briefs adequately cover the arguments; if the questions of law involve no more than an application of settled rules of law to a recurring fact situation; if the sole question of law is the sufficiency of the evidence, the adequacy of instructions to the jury or rulings on the admissibility of evidence, and the briefs refer to the record, which will determine the outcome.

                                            Comment

 The court will notify the parties if oral argument is going to be held, but generally will not notify the parties that oral argument is not going to be held.  Pursuant to Rule 16, the parties have the opportunity in their briefs to request oral argument and to set forth reasons why the party believes oral argument is necessary or will be helpful to the court in deciding the case.  After submission of all briefs, the court will generally either issue an order scheduling oral argument, or issue an order disposing of the appeal.
(2) A party who has not filed a brief shall not be heard orally. A party who has filed a memorandum of law in lieu of a brief shall be deemed to have waived oral argument, but shall be heard orally if oral argument is nevertheless held.

(3) Oral argument shall be limited to not more than 15 minutes to a side (including questions by the court), except that, for good cause shown in the party’s brief, the court may grant additional time.  See Rule 16(3)(h).  Without prior written approval, only one lawyer shall be heard for each side on the oral argument of a case.

If there are cross-appeals, they shall be argued together as one case and in the time of one case.

(4) Oral argument shall emphasize and clarify the written argument appearing in the briefs. The supreme court does not favor any oral argument that is read from briefs or from a prepared text.

(5) The party having the opening argument may, at the beginning of the argument, reserve a portion of the party’s time for closing argument.

(6) The supreme court may, on its own motion or for good cause shown on motion of either party, advance any case for hearing and prescribe an abbreviated briefing schedule.

(7) A party wishing to waive oral argument may file: (a) a stipulation for submission on briefs without oral argument joined in by all parties not later than ten (10) days prior to the date scheduled for such argument; or (b) a motion to waive oral argument not later than twenty (20) days prior to the date scheduled for such argument. The court may require oral argument notwithstanding the filing of such stipulation or motion.

(8) The supreme court shall make available to the parties, attorneys, and members of the public duplicate copies of the recording of oral argument. Upon receipt of a written request for a duplicate recording of oral argument, the clerk shall release a copy of the recording except that no duplicate of an oral argument made confidential by statute or case law shall be released. The fee for each copy shall be $25.

Rule 19. Media Access to Court Proceedings.

Any person may record and photograph, or broadcast by radio or television, the oral proceedings of the supreme court that are open to the public, provided that the orderly procedures of the court are not impaired or interrupted.

(1) Prior Notice.  Members of the broadcast media who wish to cover a proceeding shall notify the court information officer as far in advance as is practicable.

With prior notice to the clerk, and the consent of the court, any person may record and photograph, or broadcast by radio or television, the oral proceedings of the supreme court, provided that the orderly procedures of the court are not impaired or interrupted.   

    (a) No more than one still photographer and one videographer may be in the courtroom at one time.  Video equipment must remain stationary during the entire court session.  Rotation of still photographers will be under the direction of the court information officer who will minimize movement while court is in session.

    (b) No person or organization will have exclusive access to a proceeding in the courtroom.  The court information officer will advise media outlets if pool coverage is necessary.

(2) Equipment.  Broadcast media should arrive at least thirty (30) minutes prior to oral argument to begin setting up equipment.  All equipment must be in place and tested fifteen (15) minutes in advance of the time scheduled for the court session.  Equipment may not be adjusted or dismantled during the proceedings.

   (a) Exact locations for all video and still cameras, and audio equipment within the courtroom will be determined by the court information officer.  Movement in the courtroom is prohibited, unless specifically approved by the court information officer.

    (b) Video and photographic equipment must be of professional quality with minimal noise so as not to disrupt the proceedings; flash equipment and other supplemental lighting or sound equipment is prohibited unless specifically approved by the court. 

    (c) Handheld tape recording devices may be used but shall not be placed on the bar to the well of the courtroom.

    (d) Cellular telephones should be turned off or muted at all times.

(3) Courtroom Conduct.  Broadcast or print interviews will not be permitted inside the courtroom or anywhere in the supreme court building either before or after oral argument unless specifically approved by the court information officer.  Exceptions may be made in case of inclement weather. 

   (a) Distribution of printed material, including pamphlets and flyers of any kind, is prohibited both in the courtroom and in the supreme court building.

    (b) Photographers, videographers and technical support staff covering a proceeding shall avoid activity that might distract participants or impair the dignity of the proceedings.

    (c) All media personnel shall observe the customs of the court.

    (d) Appropriate dress is required. 

                                         Comment

Supreme Court Rule 19 provides generally that proceedings before the court may be broadcast, recorded and photographed by members of the media; but the rule requires that such activities not impair or interrupt the orderly procedures of the court.  The purpose of the amended rule is to define that conduct which the court considers appropriate to avoid disruption of proceedings.  The rule is subject to orders of the court in particular cases.

Rule 20. Copy of Opinion; Non-precedential Status of Orders; Citation Format.

 (1) In each case, the clerk of the supreme court shall distribute without charge to counsel of record for each party one copy of the opinion filed by the court and of the order made.

(2)  Non-precedential Status of Orders.  An order disposing of any case that has been briefed but in which no opinion is issued, whether or not oral argument has been held, shall have no precedential value, but it may, nevertheless, be cited or referenced in pleadings or rulings in any court in this state, so long as it is identified as a non-precedential order and so long as it was issued in a non-confidential case; provided however, that an 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.  See also Rule 12-D(3). All citations to non-precedential orders shall identify the court, docket number and date.

(3) 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, date 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, except as provided in (2) above. Citations to the 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. 

Rule 21. Motions, Brief Memoranda, and Extensions of Time.

(1) Motions relating to substance shall be entered upon the filing with the clerk of the supreme court of the original and 7 copies of the motion and a signed statement by counsel that a copy of the motion and notice of the filing have been mailed first class or delivered to opposing counsel. See Rule 26. Motions shall be upon good quality, nonclinging paper 8 ½ by 11 inches in size. They shall consist of standard size typewriter characters or size 13 font produced on one side of each leaf only. The lines of text shall be spaced at a setting of 1.5. The text shall be left-aligned only. Motions shall have sequentially numbered pages, beginning with the first or cover page as page 1 and using only Arabic numerals for page numbers (e.g., 1, 2, 3), including for any table of contents. The page number may be suppressed and need not appear on the the first page.

(2) Every motion to the court shall state with particularity the grounds on which it is based and the order or relief sought. A memorandum of law, affidavits, or other papers in support of the motion may be filed with it. 

(3) The original and 7 copies of objections to a motion relating to substance may be filed within 10 days from the date the motion has been filed in the clerk’s office. The grounds of objections shall be stated with particularity. A memorandum of law, affidavits, or other papers in support of the objections may be filed with the objections. 

(3-A) No reply to an objection may be filed without permission of the court received in advance. A motion for permission to file a reply must be filed within 10 days from the date the objection has been filed in the clerk’s office; provided, however, that the court may act upon a motion prior to the expiration of said ten-day period. Any reply to an objection filed without prior permission of the court shall not be considered by the court.

(4) Oral argument will not be heard on any motion, except at the invitation of the court. 

(5) If a motion does not relate to substance, but relates solely to scheduling or procedure, an original and one copy shall be filed with the clerk of the supreme court, with copies to opposing counsel. See Rule 26. All motions relating solely to scheduling or procedure shall state whether opposing counsel consents. 

(6) No motion to extend time to file an appeal document will be accepted unless accompanied by the required entry fee. See also Rule 5(1). No motion for late entry of an appeal document will be accepted unless accompanied by the appeal document and the required entry fee and unless the appeal document conforms to applicable rules. Motions to extend time to file an appeal document and motions for late entry of an appeal document are not favored and shall be granted only upon a showing of exceptional circumstances.   No court or agency other than the supreme court may extend the time to file an appeal document in the supreme court or permit late entry of an appeal document in the supreme court.

(6-A).  Extensions of time to file briefs.

        (a)  Unless the scheduling order states otherwise, any party may obtain an automatic extension of no more than fifteen days within which to file briefs (or memoranda of law) by filing an original and one copy of an assented-to notice of automatic extension of time.  The notice shall affirmatively state that all parties assent to the extension, and the notice MUST set forth the new dates upon which all briefs (or memoranda of law) for all parties shall be due, including the date for reply briefs.  No such date shall be extended by more than fifteen days.  Upon the filing of the notice, the new briefing schedule set forth therein shall become effective without further order of the court.

        (b)  A maximum of two assented-to notices of automatic extension of time may be filed by the parties collectively.  Thereafter, no additional extension of time will be granted by the court absent a showing of extraordinary circumstances.

        (c)  Extensions of time of more than fifteen days, or extensions when all parties do not consent, may be requested only by motion to the court.  Extensions of more than fifteen days are not favored.

(7) A single justice may rule on all non-dispositive motions and may issue any non-dispositive order.  A single justice may rule upon requests to withdraw or dismiss an appeal filed by the appellant, may dismiss an appeal pursuant to Rule 5(4), Rule 15(2) or Rule 16(12); and may dismiss an appeal without prejudice upon procedural grounds.  Any order of a single justice shall state which justice so ruled.   

(8)  The clerk of the supreme court may rule on all motions relating to scheduling except for motions for expedited consideration, motions to extend time to file an appeal document, and motions for late entry of an appeal document. The clerk may issue briefing and other scheduling orders.  The clerk may issue orders requiring parties to file necessary documents with the court or to cure technical defects in filings, including orders requiring parties to refile a notice of appeal on the proper form.  The clerk may grant or refer to the court dispositive motions to which all parties consent, and non-dispositive motions to which no objection is filed or all parties consent except for motions to extend time to file an appeal document and motions for late entry of an appeal document. With respect to other motions filed between the issuance of the scheduling order pursuant to Rule 12-B and the date of oral argument or submission of the case on the briefs, the clerk may refer such motions to the court or issue an order to the effect that no ruling will be made on the motion prior to oral argument or submission of the case on the briefs, but that the parties may address the motion during their allotted oral argument time if oral argument is held.  In mandatory appeals, the clerk may issue orders accepting the case. Any order of the clerk shall state that it is issued pursuant to this rule. 

(9)  Any motion to reconsider an order issued by a single justice or the clerk shall be filed within ten days from the date of the issuance of the order.  A motion to reconsider an order issued by a single justice shall be referred to the court for decision.  A motion to reconsider an order issued by the clerk shall be referred to a single justice or to the court for decision.

(10) Whenever the court issues an order requiring or permitting a party to file a brief memorandum, the brief memorandum shall be entered upon the filing with the clerk of the supreme court of the original and 7 copies of the brief memorandum and a signed statement by counsel that a copy of the brief memorandum and notice of the filing have been mailed first class or delivered to opposing counsel. See Rule 26.  Brief memoranda shall be upon good quality, nonclinging paper 8 ½ by 11 inches in size. They shall consist of standard size typewriter characters or size 13 font produced on one side of each leaf only. The lines of text shall be spaced at a setting of 1.5. The text shall be left-aligned only. Brief memoranda shall have sequentially numbered pages, beginning with the first or cover page as page 1 and using only Arabic numerals for page numbers (e.g.,  1, 2, 3), including for any table of contents. The page number may be suppressed and need not appear on the first page.

(11) Any order or decision by the court disposing of the case on the merits shall be deemed to be a denial of any pending non-dispositive motion. 

Rule 21A. Motions for Recusal.

A motion for recusal shall: (1) be made in writing, (2) state clearly and concisely in separately numbered paragraphs each ground relied upon as a basis for recusal together with the facts alleged in support thereof and, if applicable, citations to any pertinent provision of Supreme Court Rule 38, The Code of Judicial Conduct, (3) contain a verification by affidavit of any facts upon which the motion is grounded, unless the facts are apparent from the record or from the papers on file in the case, or are agreed to and stated in a writing signed by the parties or their attorneys, (4) except for good cause shown, be filed with the court by the appealing party with the notice of appeal or by another party within twenty (20) days of the filing of the appeal, and (5) certify the date or dates when the movant first became aware of the facts set forth in the motion.

Except for good cause shown, failure to file a timely motion for recusal shall be deemed a waiver of the movant’s right to request recusal.

The Court’s ruling on the motion shall issue promptly. If the motion is denied, the Court’s ruling shall be supported by findings of fact with respect to the allegations contained in the motion.

A motion for recusal shall be decided by the justice whose recusal is being sought.  A motion to reconsider any such order shall be referred to the court for decision. 

RULE 21B. MOTIONS TO WITHDRAW CRIMINAL APPEALS

In any direct appeal of a criminal conviction filed by a defendant, any motion to withdraw the appeal filed by the defendant’s counsel or by the defendant’s nonlawyer representative shall also be personally signed by the defendant.  The court may waive this requirement upon motion for good cause shown.

Rule 22. Motion for Rehearing or Reconsideration.

(1) A motion for rehearing or reconsideration shall be entered upon the filing with the clerk of the supreme court of the original and 7 copies of the motion and a certificate by counsel that a copy of the motion and notice of the filing have been mailed first class or delivered to opposing counsel and to the clerk of the court or agency from which the appeal or transfer was taken, and (in the case of an appeal from an administrative agency) to the attorney general.

(2) Any motion for rehearing or reconsideration shall be filed within 10 days from the date of the opinion or dismissal or summary decision in matters in which an opinion is not issued. The motion shall state with particularity the points of law or fact that in the professional judgment of the movant 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 3,000 words. Oral argument in support of the motion shall not be permitted, except at the invitation of the court.

(3) No answer to a motion for rehearing or reconsideration shall be required unless requested by the court, but any answer or objection must be filed within 10 days from the date the motion was filed.

(3-A)  If an answer/objection to a motion for rehearing or reconsideration is filed, no reply to the answer/objection may be filed without permission of the court received in advance. A motion for permission to file a reply must be filed within 10 days from the date the answer/objection has been filed in the clerk’s office; provided, however, that the court may act upon a motion for rehearing or reconsideration prior to the expiration of said ten-day period. Any reply to an answer/objection filed without prior permission of the court shall not be considered by the court.

(4) If a motion for rehearing or reconsideration is granted, the court may make a final disposition of the case without reargument or may restore it to the calendar for reargument or resubmission or make such other orders as are deemed appropriate in the circumstances of the case.

(5) Consecutive motions for rehearing or reconsideration shall not be considered or acted upon by the court.

Rule 23. Taxation of Costs; Waiver; Attorney’s Fees.

The clerk of the supreme court shall audit and allow bills of costs accruing in this court, and certify the costs to the trial court with the order made in the case. The following costs shall be allowed to the prevailing party: the entry fee, the actual cost of reproducing and binding the notice of appeal and any appendix, the actual cost of reproducing and binding the brief and any appendix, and cost of transcript.

Costs will be deemed waived if a request for taxation of costs with itemization is not filed within 30 days after the date on the order in the case.

In the interest of justice in extraordinary cases, but not as a matter of right, the supreme court in its sole discretion may award attorney’s fees related to an appeal to a prevailing party if the appeal is deemed by the court to have been frivolous or in bad faith.

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 trial 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.

        (4)  Pleadings filed after the mandate has issued may not be considered or acted upon by the court.

Comment

   “The mandate is the order that gives authoritative notice to the trial court that the judgment appealed from has been reversed or affirmed, as the case may be.  The general rule is that the date of the mandate, not the date of the issuance of the decision, is the effective date of an appellate court’s decision, that the mandate is the order and that the court’s opinion merely gives the reason supporting the order.”  State v. Gubitosi, 153 N.H. 79, 82 (2005)(citations and quotations omitted).

Rule 25. Summary Disposition.

(1) Except in a mandatory appeal, the supreme court may at any time, on its own motion and without notice or on such notice as it may order, dispose of a case, or any question raised therein, summarily. An order of summary affirmance under this rule may be entered when (a) no substantial question of law is presented and the supreme court does not disagree with the result below, or (b) the case includes the opinion of the trial court, which identifies and discusses the issues presented and with which the supreme court does not disagree, or (c) the case includes the decision of the administrative agency appealed from, and no substantial question of law is presented and the supreme court does not find the decision unjust or unreasonable, or (d) other just cause exists for summary affirmance, in which case the order shall contain a succinct statement of the reason for affirmance. An order of summary dismissal under this rule may be entered when the supreme court has not considered the merits, because the court clearly lacks jurisdiction, or other just cause for summary dismissal exists, in which case the order shall contain a succinct statement of the reason for dismissal. An order of summary reversal may be made by the supreme court under this rule for just cause and the order shall contain a succinct statement of the reason therefor.

(2) Except in a mandatory appeal, a party may move for summary disposition of a docketed case by filing a motion for summary reversal or affirmance within 20 days of the filing of the appeal. The party shall serve a copy of the motion on the opposing party. No motion for summary disposition of a docketed case shall be accepted after 20 days from the filing of the appeal, except if such motion is for the purpose of bringing to the court’s attention the effect that an opinion issued since the filing of the docketed case may have on the docketed case. The opposing party has 10 days from the date of filing of any motion for summary disposition within which to file a response to the motion. The supreme court may at any time, on such motion or response or both, or on its own motion, without notice or on such notice as the court may order, dispose of the case summarily.

(3) The motion for summary disposition and the response to it may each be accompanied by a memorandum of law.

(4) The filing of a motion for summary disposition and of a response shall not toll any time limitations established by law, rule, or order.

(5) Cases summarily disposed of under this rule shall not be regarded as establishing precedent or be cited as authority.

(6) In a mandatory appeal, no motions for summary affirmance or summary reversal shall be filed. No such motion shall be considered or acted upon by the court.

(7) In a mandatory appeal, any party may file a motion to dismiss the appeal based upon lack of subject matter jurisdiction, mootness, untimeliness, or other cause unrelated to the merits of the appeal. The court may, without the issuance of any order, defer ruling upon the motion until after briefs are filed and oral argument, if any, is held. Any order or decision by the court disposing of the case on the merits shall be deemed to be a denial of any pending motion to dismiss.

In a mandatory appeal, the supreme court may at any time, on its own motion and without notice or on such notice as it may order, dismiss the appeal based upon lack of subject matter jurisdiction, mootness, untimeliness, or other cause unrelated to the merits of the appeal.

(8) The supreme court may, after briefing, oral argument (if any), and consideration of the record on appeal, decide a case on the merits, or any question therein, without a statement of reasons, except that an order reversing the decision below shall contain a succinct statement of the reason therefor.

Rule 26. Filing and Service.

(1) Papers required or permitted to be filed in this court shall be filed with the clerk of this court and shall be upon good quality, nonclinging paper 8 1/2 by 11 inches in size. With the exception of documents attached to a filing, or submitted on a court form, the type used in all filings shall consist of standard size typewriter characters or size 13 font.  Filing may be accomplished by first class mail addressed to the clerk of this court, but filing shall not be timely unless the papers are received by the clerk within the time fixed by rule or law. Filings postmarked at least 2 days prior to the time fixed by rule or law shall be deemed timely.

         If the clerk’s office provides a drop box for the filing of documents, the contents of the drop box shall be removed by the clerk’s office at the start of business each day that the court is open for business.  The following rules shall determine the date of filing for documents filed via the drop box:

            (a)  Any person filing a document or documents via the drop box shall indicate the date and time of filing on the document or documents or on the envelope containing the document or documents, and the document shall be considered to have been filed on the date indicated, except if the date indicated is a Saturday, Sunday, legal holiday, or other day upon which the clerk’s office is closed, the document shall be considered to have been filed on the next day that the court is open for business.  If a document or documents deposited in the drop box does not include both a date and time of filing, the document will be deemed to have been filed on the date that the document or documents are removed from the drop box.

           (b)  The court is NOT responsible for any documents placed in the drop box which are lost, stolen, misplaced, or destroyed.  A party may contact the court during business hours to verify that a document placed in the drop box has been received by the clerk’s office.

(2) Copies of all documents filed by any party shall, at or before the time of filing, be served by a party or person acting for him or her on all other parties to the case. Service on a party represented by counsel shall be made on counsel. Copies of motions to extend time to file an appeal document, appeal documents, and motions for rehearing or reconsideration shall be filed with the clerk of the court or agency from which the appeal or transfer is taken, and (in the case of an appeal from an administrative agency) with the attorney general, as specified in rules 5, 21, or 22.

(3) (a) Service may be personal or by first class mail. Personal service includes delivery of the copy to a secretary or other responsible person at the office of counsel. Service by first class mail is complete on mailing.

(b) In any case when all parties are represented by lawyers, all parties’ counsel may agree that pleadings filed and communications addressed to the court may be furnished to all other counsel by email. An agreement may be filed with the court by stipulation. Such agreement shall list the email address(es) at which counsel agrees to be served. The email header shall include the caption of the case and its docket number. Pleadings and communications furnished in accordance with this rule shall be attached to the email in .PDF file format. Documents so furnished may have on their signature lines a copy of counsel’s signature, a facsimile thereof, “/s/ [counsel’s name]” as used in Rule 13 of the 2018 Supplemental Rules of the Supreme Court of New Hampshire for Electronic Filing, or similar notation indicating the document was signed.

(4) In the case of any notice of appeal or transfer filed in this court, counsel for the filing party shall include with the filing a statement certifying that every issue specifically raised (a) has been presented to the court below and (b) has been properly preserved for appellate review by a contemporaneous objection or, where appropriate, by a properly filed pleading. Failure of counsel to comply with this requirement will result in the assessment of costs and attorney’s fees by the court and may also result in the rejection of the notice of appeal as to that issue.

(4-A)   When an attorney provides limited representation to an otherwise unrepresented party by drafting a document to be filed by such party with the supreme court in a proceeding in which the attorney is not entering any appearance or otherwise appearing in the case in the supreme court, the attorney is not required to disclose the attorney’s name on such pleading to be used by that party; any pleading drafted by such limited representation attorney, however, must conspicuously contain the statement “This pleading was prepared with the assistance of a New Hampshire attorney.”  The unrepresented party must comply with this required disclosure.

(5) Notices of appeal and all other documents required or permitted to be filed in this court shall have sequentially numbered pages, beginning with the first or cover page as page 1 and using only Arabic numerals for page numbers (e.g., 1, 2, 3), including for any table of contents. The page number may be suppressed and need not appear on the first page.

(6) Notices of appeal and all other papers required or permitted to be filed in this court shall be duplicated on non-clinging paper. Clinging paper shall include any duplication done by a wet-process machine or any electrostatic duplicating method which creates static electricity between the pages.

(7) All documents presented for filing shall contain a statement of compliance with sections (2), (3), and (4). If a document presented for filing is subject to a word limitation, see, e.g., Rule 16(11) and Rule 22(2), the document shall contain a statement of compliance with the word limitation and a certification identifying the number of words in the document.

(8) All filings and correspondence, except the initial filing of the appeal document, shall contain the supreme court’s docket number.

(9) All changes of mail address shall be filed with the clerk. Whenever notice to a party is required, notice to the last mail address on file shall be deemed notice to, and binding on, the party.

(10)  Any pleading filed by counsel who is a member of the New Hampshire Bar shall include counsel’s New Hampshire Bar identification number.

Rule 27. Computation and Extension of Time.

(1) In computing any period of time prescribed or allowed by these rules, by order of 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, or other day upon which the clerk’s office is closed, in which event the period shall extend until the end of the next day that is not a Saturday, Sunday, legal holiday, or other day upon which the clerk’s office is closed.

(2) Motions to enlarge the time prescribed by these rules or by court order for doing any act are not favored.  See also Rule 21(6) (addressing motions to extend time to file appeal document and motions for late entry of appeal document), and Rule 21(6-A) (addressing extensions of time to file briefs).

Rule 28. Parties’ Designation.

(1) (a)  In a case entered by a petition requesting the supreme court to exercise its original jurisdiction, the party filing the petition shall be designated as the petitioner, even though the party may have filed the petition in the supreme court by reason of proceedings pending in a trial court or in an administrative agency in which the party is the defendant.   In all other types of cases entered, the parties shall retain their trial court or administrative agency designations as plaintiffs and defendants.

    (b)  When a statute or a rule of court requires that the name of a party be kept confidential, first letter of the forename and first letter of the surname of that party shall be listed only, unless another form of listing the party’s name is preferable in the circumstances of the case.

(2) Unless the supreme court expressly orders differently, cases in which the State, a State agency, or a State official is a party, the State’s name shall be listed as “The State of New Hampshire”; the name of the State agency shall be preceded by the words “New Hampshire”, e.g., “New Hampshire Department of Health and Welfare”; the name of a State division shall be preceded by the words “New Hampshire” but shall not mention the parent agency, e.g., “New Hampshire Division of Human Services”; and the title of a State official, but not the official’s name, shall be listed, e.g., “Secretary of State”. If the title of a State official is identical to that of a municipal or county official, the State official’s title shall be preceded by the words “New Hampshire”.

(3) The supreme court may process and report a case under a new name or names.

Rule 29. Substitution of Parties.

(1) If a party dies after a case has been entered in this court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the supreme court. If the deceased party has no representative, any party may mention the death on the record, and proceedings shall then be had as the supreme court may direct.

(2) When a public officer in his or her official capacity is a party to an appeal or other proceeding in the supreme court and during the pendency of the case he dies, resigns, or ceases to hold office, the officer’s successor shall be automatically substituted as a party.

Rule 30. Amicus Curiae.

(1) A brief of an amicus curiae may be filed only after leave is granted by order of the supreme court on motion or when accompanied by written consent of all parties to the case. An amicus curiae shall file a brief within the time allowed to the party whose position the amicus will support, unless the court for good cause shown shall grant leave for a later filing.

(2) When consent to the filing of an amicus curiae is refused by a party to the case, an original and 7 copies of a motion for leave to file may be presented to the court within the time allowed for the filing of the brief of the party to be supported. The motion shall concisely state the nature of the movant’s interest, the facts or questions of law that have not been, or reasons for believing that they will not adequately be, presented by the parties, and their relevancy to the disposition of the case. A brief may be conditionally filed with the motion for leave.

A party served with such motion may seasonably file an original and 7 copies of an objection concisely stating the reasons for withholding consent.

(3) Consent to the filing of a brief of an amicus curiae is unnecessary when the brief is presented for the State of New Hampshire by the attorney general (as amicus and not as a party); for any State agency authorized by law to appear on its own behalf by its appropriate legal counsel; or for any political subdivision of the State by its authorized law officer.

(4) The court may on motion, in its discretion, permit an amicus curiae to be heard orally.

Rule 31. Cases in Which the State is Not a Party, But Which Involve the State’s Interests.

A party who intends to draw in question the constitutionality of any State statute, any State administrative procedure or regulation, and any State official conduct in any proceeding in the supreme court to which the State, or any agency thereof, or any officer or employee thereof as such officer or employee, is not a party, shall, upon entry of the case in the supreme court, give immediate notice in writing to the clerk of the supreme court and the attorney general, and shall at the same time send the attorney general a copy of the party’s notice of appeal, transfer statement, or petition.

RULE 32. COUNSEL IN CRIMINAL CASES

(1) Whether retained by the defendant or appointed by a trial 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 Request for a Lawyer form (financial statement) or a showing that a Request for a Lawyer form has been filed.  

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

 (4)  Any indigent defendant who wishes to be represented in the supreme court by court-appointed counsel, including indigent defendants who were represented in the trial court by court-appointed counsel, must file a current Request for a Lawyer form with the supreme court.  If the indigent defendant is the appellant, the current Request for a Lawyer form shall accompany the appeal document.  Otherwise, the current Request for a Lawyer form shall be filed within thirty days after the date that the appeal document is filed. 

        Except in exceptional circumstances, the clerk’s office will process the Request for a Lawyer form within 30 days of the receipt of said affidavit. 

 (5) Maximum counsel fee for appeals to the supreme court in assigned counsel cases shall be $2,000.00. 

RULE 32-A. COUNSEL IN GUARDIANSHIP, INVOLUNTARY ADMISSION, AND TERMINATION OF PARENTAL RIGHTS CASES.

(1)  Whether retained by the party or appointed by a trial 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, an involuntary admission case commenced by the filing of a petition pursuant to RSA 135-C:36, a civil commitment case filed under RSA 135-E, a termination of parental rights case commenced by the filing of a petition pursuant to RSA 170-C:4, or an involuntary admission case filed under RSA 171-B, shall be responsible for representing the party in the supreme court unless the supreme court relieves counsel from this responsibility for good cause shown.  When the party 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 party not to appeal.  If, however, the party insists on appealing, counsel shall file the notice of appeal, setting forth therein all arguable issues.  If counsel is thereafter ordered to file a brief, counsel shall examine the record and again determine whether any nonfrivolous arguments exist.  If counsel concludes that the appeal is frivolous, counsel shall again advise the party to withdraw the appeal.  If the party decides not to withdraw the appeal, counsel shall file a brief that argues the party’s case as well as possible.  In such a case, the assertion of a frivolous issue before the court shall not constitute a violation of New Hampshire Rule of Professional Conduct 3.1.  However, in no case shall counsel deceive or mislead the court, or deliberately omit facts or authority that directly contradict counsel’s arguments.  Cf. State v. Cigic, 138 N.H. 313, 318 (1994) (explaining scope of exception to Professional Conduct Rule 3.1 for asserting frivolous issues in criminal appeals).  

(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, an involuntary admission case commenced by the filing of a petition pursuant to RSA 135-C:36, a civil commitment case filed under RSA 135-E, a termination of parental rights case commenced by the filing of a petition pursuant to RSA 170-C:4, or an involuntary admission case filed under RSA 171-B, must state reasons that would warrant the grant of leave to withdraw.  Absent a showing of exceptional circumstances, the motion must be accompanied by a showing that new counsel has been appointed by the trial court or retained to represent the party on appeal.  

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

(4)   Any indigent party who wishes to be represented in the supreme court by court-appointed counsel, including indigent parties who were represented in the trial court by court-appointed counsel, must file a current Request for a Lawyer form (financial statement) with the supreme court.  If the indigent party is the appellant, the current Request for a Lawyer form shall accompany the appeal document.  Otherwise, the current Request for a Lawyer form shall be filed within thirty days after the date that the appeal document is filed.

RULE 32-B. COUNSEL IN PARENTAL NOTIFICATION CASES

(1)  Whether retained by the pregnant minor or appointed by the superior court, trial counsel in a parental notification case pursuant to RSA 132:34 shall be responsible for representing the pregnant minor in the supreme court unless the superior court, prior to the filing of the appeal, permits counsel to withdraw due to exceptional circumstances.  See Superior Court Rule 221.  Counsel appointed to represent the pregnant minor in the trial court shall be deemed appointed to represent the pregnant minor in the supreme court.

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

(3)  A pregnant minor who wishes to appeal the denial of a petition for an order authorizing an abortion without notification who was not represented by counsel in the superior court but who wishes to be represented in the supreme court by court-appointed counsel must file a “Request for Court-Appointed Counsel in Expedited Confidential Appeal From Lower Court Decision on Parental Notification Prior to Abortion” form with the superior court, prior to the filing of the appeal. 

Rule 33. Nonmember of the New Hampshire Bar.

(1) (a)  An attorney, who is not a member of the Bar of this State  [(a “Nonmember Attorney”)], shall not be allowed to enter an appearance in any case, except on application to appear pro hac vice, which may be granted if a member of the Bar of this State [(the “In-State Attorney”)] is associated with him or her and present at oral argument. 

    (b)  A Nonmember Attorney seeking to appear pro hac vice shall file a verified application with the court, which shall contain the following information:

         (1)  the applicant’s residence and business address;

         (2)  the name, address and phone number of each client sought to be represented;

         (3)  the courts before which the applicant has been admitted to practice and the respective period(s) of admission;

         (4)  whether the applicant: (i) has been denied admission pro hac vice in this State; (ii) had admission pro hac vice revoked in this State; or (iii) has otherwise formally been disciplined or sanctioned by any court in this State.  If so, the applicant shall specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings;

         (5)  whether any formal, written disciplinary proceeding has ever been brought against the applicant by any disciplinary authority in any other jurisdiction within the last five years and, as to each such proceeding: the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated and finally concluded; the style of the proceedings; and the findings made and actions taken in connection with those proceedings;

         (6)  whether the applicant has been formally held in contempt or otherwise sanctioned by any court in a written order in the last five years for disobedience to its rules or orders, and, if so: the nature of the allegations; the name of the court before which such proceedings were conducted; the date of the contempt order or sanction, the caption of the proceedings, and the substance of the court’s rulings (a copy of the written order or transcript of the oral rulings shall be attached to the application);

         (7)  the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this State within the preceding two years; the date of each application; and the outcome of the application; and

         (8)  the verified application shall contain the name, address, telephone number and bar number of an active member in good standing of the Bar of this State who will be associated with the applicant and present at oral argument. 

 (c)  The court has discretion as to whether to grant applications for admission pro hac vice.  An application ordinarily should be granted unless the court finds reason to believe that:

        (1)  such admission may be detrimental to the prompt, fair and efficient administration of justice;

        (2)  such admission may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent;

        (3)  one or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk; or

        (4)  the applicant has engaged in such frequent appearances as to constitute common practice in this State.

(2)  Without the prior written approval of the court, no person who is not a lawyer may represent a person other than himself or herself 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, (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, (iv) all prior proceedings in which said other person has not been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court, and (v) all prior proceedings in which said other person’s permission to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court has been revoked.  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.

        (3) When an attorney provides limited representation to an otherwise unrepresented party by drafting a document to be filed by such party with the supreme court in a proceeding in which the attorney is not entering any appearance or otherwise appearing in the case in the supreme court, the attorney is not required to disclose the attorney’s name on such pleading to be used by that party; any pleading drafted by such limited representation attorney, however, must conspicuously contain the statement “This pleading was prepared with the assistance of a New Hampshire attorney.”  The unrepresented party must comply with this required disclosure.  

(4)  When a Nonmember Attorney appears for a client in a proceeding pending in this state, either in the role of co-counsel of record with the In-State Attorney, or in an advisory or consultative role, the In-State Attorney who is co-counsel or counsel of record for that client in the proceeding remains responsible to the client and responsible for the conduct of the proceeding before the court or agency.  It is the duty of the In-State Attorney to advise the client of the In-State Attorney’s independent judgment on contemplated actions in the proceeding if that judgment differs from that of the Nonmember Attorney.

(5)  An applicant for permission to appear pro hac vice shall pay a non-refundable fee as set forth in Supreme Court Rule 49; provided that not more than one application fee may be required per Nonmember Attorney for consolidated or related matters regardless of how many applications are made in the consolidated or related proceedings by the Nonmember Attorney; and further provided that the requirement of an application fee may be waived to permit pro bono representation of an indigent client or clients, in the discretion of the court.

Rule 34. Uniform Certification of Questions of Law.

This court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, or of the District of Columbia, or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this State which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of this court.

This rule may be invoked by an order of any of the courts referred to above upon that court’s own motion or upon the motion in that court of any party to the cause.

A certification order shall set forth

    (1) the questions of law to be answered; and

    (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.

The certification orders shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to this court by the clerk of the certifying court under its official seal. This court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of this court, the record or portion thereof may be necessary in answering the questions.

Fees and costs shall be the same as in civil appeals docketed before this court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification. All filings shall be on paper 8 1/2 by 11 inches in size.

Proceedings in this court shall be those provided in these rules or laws governing briefs and arguments.

Rule 35. Guidelines for the Utilization by Lawyers of the Services of Legal Assistants under the New Hampshire Rules of Professional Conduct.

                                    INTRODUCTION

5. Rules of Professional Conduct. At the outset it should be noted that Rule 5.3 of the New Hampshire Rules of Professional Conduct and the Comments pertaining thereto set forth in general terms the professional responsibilities of the lawyer under the Rules with respect to nonlawyer assistants. For ease of reference this Rule and the related Comments are hereinafter reproduced in their entirety:

    5.3. Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

    (a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

    (b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

    (c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

        (1) The lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

        (2) The lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

ABA Model Code Comments

Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

1. Comments to Guidelines. The Comments to these Guidelines were prepared by the New Hampshire Bar Association to illustrate the meaning and purpose of each Rule. They have not been adopted, do not constitute part of the Guidelines, and are not intended to affect the application or interpretation of the Guidelines.
2. Definition of “Legal Assistant”. As used in these Guidelines, the term “legal assistant” shall mean a person not admitted to the practice of law in New Hampshire who is an employee of or an assistant to an active member of the New Hampshire Bar, a partnership comprised of active members of the New Hampshire Bar or a Professional Association within the meaning of RSA chapter 294-A, and who, under the control and supervision of an active member of the New Hampshire Bar, renders services related to but not constituting the practice of law.

Comment

This definition is intended to cover those lay persons often designated as paralegals, legal assistants, law specialists, law clerks, law students, etc. It is intended to cover all lay persons who are employed by or associated with a member of the Bar but who are not admitted to practice law in the State of New Hampshire. For purposes of these Guidelines, the term “legal assistant” is intended to be synonymous with the terms “nonlawyer assistant” and “nonlawyer” for purposes of the New Hampshire Rules of Professional Conduct and, in particular, Rule 5.3 of the Rules and the Comments pertaining thereto.

Rule 1. It is the responsibility of the lawyer to take all steps reasonably necessary to ensure that a legal assistant for whose work the lawyer is responsible does not provide legal advice or otherwise engage in the unauthorized practice of law; provided, however, that with adequate lawyer supervision the legal assistant may provide information concerning legal matters and otherwise act as permitted under these rules.

Comment

The Bar Association of the State of New Hampshire is integrated (Article II, Sec. 1, Constitution of N.H.B.A.). (See also In re Unification of New Hampshire Bar, 109 N.H. 260.) “Except for the right reserved to litigants by statute no person other than an active member of this association shall practice law in this state or in any manner hold himself out as authorized or qualified to practice law in this state.” (Art. II, Sec. 4, Constitution of N.H.B.A.)

N.H. statutes provide for injunctive relief from activities constituting the unauthorized practice of law. (RSA 311:7-a through 7-f.)

That the New Hampshire Supreme Court retains inherent power to supervise the conduct of attorneys for the protection of the public is well settled in this state (Donovan’s Case, 108 N.H. 34; In re Mussman’s Case, 111 N.H. 402; In re Harrington’s Case, 100 N.H. 243; Supreme Court Rule 42). From the foregoing, two factors are at once apparent:

1. Protection of the public from inexperience and ignorance and maintenance of the highest ethical standards are the paramount concerns of the Legislature, the Courts, and the Bar Association.
2. That protection can best be assured by the members of the bar of this state who are subject to all of the disciplines inherent in that admission and in the attorney’s oath as an officer of the Court.

It follows that, while a layperson may have sufficient knowledge or expertise in a given area of the law to give some advice thereon, learning alone does not justify a representation to the public that such a layperson is qualified as a consultant on the law of the layperson’s particular specialty.

Accordingly, this Rule provides that lawyers shall not allow their Legal Assistants to give legal advice or otherwise to engage in the practice of law. A lawyer may, however, allow a Legal Assistant to perform services for the lawyer in connection with the lawyer’s representation of a client (including, without limitation, the provision directly to clients of information concerning legal matters); provided that adequate lawyer supervision of the assistant’s activities is provided for and the requirements of these rules are otherwise complied with.

There is no satisfactory, all-inclusive definition of what constitutes the practice of law. Ethical Consideration 3-5 (E.C. 3-5) of the former Code of Professional Responsibility provided:

“It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of a lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.”

Other than citing the Code of Professional Responsibility in various cases, the New Hampshire Supreme Court does not appear to have had occasion to define precisely what constitutes the unauthorized practice of law. Other jurisdictions have been faced with the problem, however, and the general rule seems to be that to constitute unauthorized practice or the giving of legal advice, there must be:

1. Some direct employment relationship, express or implied, resulting either from contract, designation, or assignment, between the person giving the advice and the person receiving the advice, and
2. The representation and the advising of a particular person in a particular fact situation ( Matter of N.Y. County Lawyers’ Association v. Norman F. Dacey, 28 App. Div. 2d, 161, 174, 176).

    Ethical Consideration 3-6 of the former Code also provided:

“that a lawyer may delegate tasks to a lay person provided the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product.”

Within this framework, the legal assistant can do or assist in doing any law work, such as examination of law, process preparation, affidavits, deeds, pleadings and the like, but always under the direction or supervision of an attorney, who must retain full responsibility for the work.

Similarly, Rule 5.5(b) of the New Hampshire Rules of Professional Conduct provides that a lawyer shall not “assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” The Comments pertaining to that Rule make clear that this paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer retains responsibility for the work, in accordance with Rule 5.3 of the Rules, cited in the Introduction to these Guidelines.

         Rule 2. A lawyer may not permit a legal assistant to represent a client in judicial or administrative proceedings or to perform other functions ordinarily limited to lawyers, unless authorized by statute, court rule or decision, administrative rule or regulation or customary practice.

Comment

Except as permitted by Supreme Court Rule 36, Superior Court Rule 19, Rule 5 of the Rules of the United States District Court for the District of New Hampshire, or other applicable statutes, rules or decisions, a lawyer may not permit a legal assistant to appear, plead, try cases, or argue in court or in other adversary proceedings, on behalf of anyone other than himself or herself, or do anything in a representative capacity for a client. Rules of Court in the various courts of New Hampshire generally prohibit a layperson from representing a client (other than himself or herself) before such courts. Likewise, a layperson should not be allowed to represent a client in proceedings before an administrative tribunal other than one whose regulations or practice specifically authorize lay representation. A lawyer may, of course, permit a legal assistant to represent a client in an adversary proceeding before an administrative tribunal if the legal assistant is specifically permitted by statute, rule or customary practice to participate in such proceeding. See also Rule 5.3 of the New Hampshire Rules of Professional Conduct, cited in the Introduction to these Guidelines, and Rule 5.5(b) of the Rules, cited in the Comment to Rule 1 above, which prohibits a lawyer from assisting a nonlawyer in the performance of activity constituting the unauthorized practice of law.

        Rule 3. Except as otherwise provided by statute, court rule, or decision, administrative rule or regulation, or by the Rules of Professional Conduct, a lawyer may permit a legal assistant to perform services for the lawyer in the lawyer’s representation of a client, provided:

1. The services performed by the legal assistant do not require the exercise of professional legal judgment;
2. The lawyer maintains a direct relationship with the client;
3. The lawyer supervises the legal assistant’s performance of his or her duties; and
4. The lawyer remains fully responsible for such representation, including all actions taken or not taken by the legal assistant in connection therewith.

Comment

Ethical Consideration 3-5 of the former Code of Professional Responsibility provided that only lawyers should be permitted to act in matters involving the exercise of professional legal judgment:

“. . . Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. . . . Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.”

Subsections B through D of the Rule were originally derived from Ethical Consideration 3-6 of the former Code of Professional Responsibility, which stated:

“A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal services more economically and efficiently.”

The supervising attorney shall remain directly responsible for all advice given and all actions taken or omitted to be taken by the legal assistant in the performance of his or her duties, and shall be fully accountable to the appropriate professional disciplinary bodies for the legal assistant’s work. It follows that where duties are delegated to a legal assistant, the legal assistant’s supervising attorney must be certain that the legal assistant is given adequate guidance and assistance for the carrying out of the duties delegated.

This Rule thus in large part simply restates and summarizes the principles set forth in Rule 5.3 of the New Hampshire Rules of Professional Conduct, cited in the Introduction to these Guidelines. Reference should also be made to Rule 5.5(b) of the Rules, which prohibits a lawyer from assisting a nonlawyer in the performance of activity constituting the unauthorized practice of law.

Rule 4. A lawyer should exercise care that a legal assistant for whose work the lawyer is responsible does not:

(A) Reveal information relating to representation of a client, unless the client expressly or implicitly consents, after consultation with the supervising lawyer and with knowledge of the consequences, or except as otherwise required or permitted, in the judgment of the supervising lawyer, by statute, court order or decision, or by the Rules of Professional Conduct; or

(B) Use such information to the disadvantage of the client unless the client consents after consultation with the supervising lawyer and with knowledge of the consequences.

Comment

    Ethical Consideration 4-1 of the former Code of Professional Responsibility provided:

“Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance.”

Ethical Consideration 4-2 of the former Code of Professional Responsibility recognized that the ethical obligation of preserving the confidences and secrets of a client is complicated by the necessary exposure of non-lawyers to confidential information:

“It is a matter of common knowledge that the normal operation of a law office exposes confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the files; and this obligates a lawyer to exercise care in selecting and training his employees so that the sanctity of all confidences and secrets of his clients may be preserved.”

Subsection A of the current Rule is based upon Rule 1.6 of the New Hampshire Rules of Professional Conduct, and Subsection B is based upon Rule 1.8(b) of the Rules, in each case applying the principles set forth in these Rules in the context of the lawyer’s use of the services of a legal assistant.

         Rule 5. A lawyer shall not form a partnership with a legal assistant if any of the activities of the partnership consist of the practice of law, nor practice with or in the form of a professional corporation or association authorized to practice law for a profit if a legal assistant owns an interest therein, is a corporate director or officer thereof or has the right to direct or control the professional judgment of a lawyer.

Comment

    Ethical Consideration 3-8 of the former Code of Professional Responsibility provided:

“Since a lawyer should not aid or encourage a layman to practice law, he should not practice law in association with a layman or otherwise share legal fees with a layman. This does not mean, however, that the pecuniary value of the interest of a deceased lawyer in his firm or practice may not be paid to his estate or specified persons such as his widow or heirs. In like manner, profit-sharing retirement plans of a lawyer or law firm which include non-lawyer office employees are not improper. These limited exceptions to the rule against sharing legal fees with laymen are permissible since they do not aid or encourage laymen to practice law.”

Rule 5.4(b) of the Rules of Professional Conduct provides:

“A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.”

 Also, Rule 5.4(d) of the Rules provides:

“A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit if:

(1) A non-lawyer owns any interest therein; except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) A non-lawyer is a corporate director or officer thereof; or

(3) A non-lawyer has the right to direct or control the professional judgment of a lawyer.”

The current Rule thus simply applies the principles set forth in Rules 5.4(b) and (d) of the New Hampshire Rules of Professional Conduct in the context of the lawyer’s relationship with the legal assistant.

         Rule 6. A lawyer shall not share fees with a legal assistant in any manner, except that a lawyer or law firm may include the legal assistant in a retirement plan even if the plan is based in whole or in part on a profit-sharing arrangement.

Comment

The compensation of a legal assistant may not include a percentage of profits, fees received generally, or fees received specifically from a client brought to the lawyer or the law firm by the legal assistant. (See, e.g., ABA Opin. 316 (1967): Disciplinary Rule 3-102 under the former Code of Professional Responsibility.) Ethical Consideration 3-8 of the former Code provided in pertinent part: “Since a lawyer should not aid or encourage a layman to practice law, he should not . . . share legal fees with a layman.” See also Rule 5.4(a) of the New Hampshire Rules of Professional Conduct.

A lawyer may, however, include his legal assistants in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. This exception is derived from Rule 5.4(a)(3) which provides: “A lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.” This Rule simply restates the requirements of Rule 5.4(a)(3) of the New Hampshire Rules of Professional Conduct in the context of the lawyer’s relationship with the legal assistant.

         Rule 7. A legal assistant’s name may not be included on the letterhead of a lawyer or law firm. A legal assistant’s business card may indicate the name of the lawyer or the law firm employing the assistant, provided that the assistant’s capacity is clearly indicated and that the services of the assistant are not utilized by the lawyer or firm for the purpose of solicitation of professional employment for the lawyer or firm from a prospective client in violation of the relevant statutes or the Rules of Professional Conduct.

Comment

    A legal assistant may have a business card with the firm name appearing on it provided the non-lawyer status of the legal assistant is clearly disclosed. The business card is designed to identify the legal assistant and to state by whom the legal assistant is employed. (A.B.A. Inf. Opin. 909 (1966); A.B.A. Inf. Opins. 909 (1966), 1185 (1971), and 1000 (1967).)

         Rule 8. A lawyer shall require that a legal assistant, when dealing with clients, attorneys or the public, disclose at the outset that he or she is not a lawyer.

Comment

Communication with clients, the public and attorneys outside of the law office employing the legal assistant may be in writing, face-to-face or by telephone.

Routine early disclosure when a legal assistant is dealing with a lawyer representing another party would permit the lawyer, if necessary, to call for the lawyer supervising the legal assistant’s work. Furthermore, if the legal assistant should over-step the bounds of his or her authority and make legal judgments while dealing with persons outside of the law firm, at least those persons will not have been misled into thinking that those judgments have the authority of a member of the bar.

A legal assistant may sign letters on the lawyer’s letterhead provided the signature is followed by an appropriate designation so that there can be no connotation that the person so signing is a lawyer. Therefore, a legal assistant may sign his or her name on the letterhead of the firm, provided that the legal assistant clearly identifies his status by an appropriate term, such as “legal assistant,” “legal clerk,” “law assistant,” “litigation assistant,” or “secretary” to the lawyer or to the firm employing him or her. Whenever a non-lawyer employee signs the employee’s own name, or names the non-lawyer as the individual in the firm who should be contacted, disclosure of the non-lawyer status must be made in some appropriate manner. Whether the letter is signed by the legal assistant in his or her individual name, or in the firm name by the individual (AB & C by __________), or in the firm name with a reference to the individual in the body of the letter (signature: “A B & C”; body of the letter: “Please address your reply to Mr./Ms. __________”), appropriate designation of the legal assistant’s non-lawyer status must be made.

With respect to oral communications relating to legal matters, whether face-to-face or by telephone, a legal assistant should make it clear that he or she is not a member of the Bar. Disclosure of status may be made in any way that avoids confusion or misinterpretation. Common sense suggests a routine disclosure at the outset of the conversation.

         Rule 9. A lawyer should exercise care to prevent a legal assistant from engaging in conduct which would involve the assistant’s employer in a violation of the Rules of Professional Conduct.

Comment

The Bar Association presently has no authority to enforce directly rules of conduct for non-lawyers. Therefore, it is the responsibility of the lawyer-employer to properly instruct and supervise the conduct of his or her legal assistants, so that they will not involve the lawyer in a violation of the Rules of Professional Conduct. It is strongly recommended that no New Hampshire attorney employ or otherwise associate himself or herself with a legal assistant in any way unless and until the legal assistant has been made aware of the provisions of the Rules of Professional Conduct, of these Guidelines, and of RSA 311:7 and :9, and has been duly instructed to avoid conduct which would be unethical for a lawyer or would reflect adversely on the lawyer-employer.

This Rule simply summarizes and restates the requirements of Rule 5.3 of the New Hampshire Rules of Professional Conduct set forth in the Introduction to these Guidelines, to which the lawyer and legal assistant should refer for amplification.

Rule 36. Appearances in Courts by Eligible Law Students and Graduates.

(1) Notwithstanding the provisions of any superior court rule concerning persons who are not lawyers, of any superior court rule and district court rule concerning lawyers who are not members of the bar of this State, and of any other such court rules, an eligible law student or law graduate acting under a supervising attorney may appear in any court in this State as herein provided, in behalf of any indigent person, the State of New Hampshire, a State agency, or a State subdivision.

(2) The supervising attorney shall be a member of the bar of this State and, with respect to the law student or graduate’s proposed appearances in any court, shall file with the clerk of this court the attorney’s written consent to:

    (a) supervise the student or graduate;

    (b) assume personal professional responsibility for the student’s or graduate’s work and consider purchasing professional liability insurance coverage to include such law student or graduate;

    (c) assist the student or graduate to the extent necessary;

    (d) appear with the student or graduate in courts in this State when, in the supervising attorney’s judgment, the nature of the case requires the supervising attorney’s presence; and

    (e) participate with the student or graduate in all settlement or plea negotiations and remain available at all times for consultation with opposing counsel without the participation of the student or graduate.

The supervising attorney shall waive the right to the confidentiality of proceedings resulting from complaints to the Committee on Professional Conduct, for the limited purpose of permitting disclosure of such proceedings by said committee to this court in connection with the court’s review of a filing under this rule.

The presence of the supervising attorney in the superior court shall be required in all contested civil cases and in all criminal cases, and in district courts at probable cause hearings. Practicing members in good standing of the bar of another State for at least two years may on application to this court be exempt from the provisions of this rule relating to appearances in superior court and at probable cause hearings in district courts, provided that they prepare to take and do take the next bar examination in this State for which they are eligible or, having taken that examination, they are awaiting publication of the results of, or admission to the bar after passing, that examination.  The presence of the supervising attorney shall be required in all cases in this court provided, however, that a student or graduate may appear in this court only in cases heard under Rule 12-D and with prior approval of this court.

The attorney shall file his or her written consent immediately upon his consenting to supervise a law student or graduate. Following such initial written consent, in every instance in which an attorney consents to continue supervising law students and graduates under this rule, the attorney shall annually refile his or her written consent with the clerk of the supreme court in the month of October. The attorney shall file a withdrawal of his written consent immediately upon the termination of his or her supervision of any such student or graduate.

(3) In order to be eligible to appear:

    (a) the student shall

        (1) be enrolled at least 75% of full-time in a law school approved by the American Bar Association. The student shall be deemed to continue to meet this requirement as long as, following graduation, he or she is preparing to take and does take the next State bar examination of the State of his or her choice for which he or she is eligible or, having taken that examination, the student is awaiting publication of the results of, or admission to the bar after passing, that examination;

        (2) be of good moral character and fitness and shall have completed legal studies amounting to at least four full-time semesters, or the equivalent, or have completed two full-time semesters and be enrolled in a law school clinical course with a classroom component geared to training the students for the work. Second year Daniel Webster Scholar students enrolled at the University of New Hampshire Law School who have completed the nine hour DOVE project training program shall be deemed to have met the requirement that students “be enrolled in a law school clinical course with a classroom component geared to training the students for the work.”

        (3) be certified, by either the dean or a faculty member of his or her law school designated by the dean, as qualified to provide the legal representation permitted by this rule. This certification may be withdrawn by the dean or designated faculty member by mailing a notice of withdrawal to the clerk of this court at any time without notice or hearing and without any showing of cause. The loss of certification by action of this court shall not be considered a reflection on the character or ability of the student. The dean or a faculty member designated by the dean may recertify such a student for appearances under this rule;

    (b) the law graduate shall:

        (1) have graduated from a law school approved by the American Bar Association and be of good moral character and fitness. The graduate shall be deemed to continue to meet this requirement as long as he or she is preparing to take and does take the next bar examination in this State for which he or she is eligible or, having taken that examination, he or she is awaiting publication of the results of, or admission to the bar after passing, that examination.

    (c) the law student or law graduate shall:

        (1) neither ask for nor receive any compensation or remuneration of any kind for his or her services from the party on whose behalf he or she renders services, but this shall not prevent an attorney, an approved legal aid society, federally funded legal services program, law school, public defender program, the State, a State agency, or a subdivision of the State, from paying compensation to the eligible law student or graduate nor shall it prevent any agency from making proper charges for its services;

        (2) certify in writing that he or she is familiar, and will comply, with the Rules of Professional Conduct approved by this court;

        (3) certify in writing that he or she is familiar with the rules of this court and of other courts in this State, and any other rules relevant to the cases in which he or she is appearing and that he or she will agree to be bound by the Rules of Professional Conduct, and by the Guidelines for the Utilization by Lawyers of the Services of Legal Assistants Under the New Hampshire Rules of Professional Conduct not inconsistent with this rule;

        (4) certify in writing that he or she acknowledges that his or her appearance under this rule may be suspended for cause on order of any justice of any court of this State, subject to reinstatement shown to the supreme court;

        (5) file a sworn affidavit certifying that except as otherwise stated he or she has not ever been a party to any criminal proceedings.

(4) ) A law student or graduate seeking to appear pursuant to this rule shall complete the Form Designating Compliance with Student/Graduate Practice Rule, approved by the court. Upon filing this form with the clerk of this court, an eligible law student or graduate supervised in accordance with this rule may appear before any court as herein provided with respect to any case for which the student or graduate has met the requirements of this rule; provided that the requirements of this rule shall not be deemed to have been met by any person who has been a party to any criminal proceeding until the court shall have notified such person in writing that he or she has met the requirements of the rule.

(5) The clerk of the supreme court shall maintain a record of the name of each law student and law graduate and the name of the law student’s and law graduate’s supervising attorney who comply with the provisions of this rule.

(6) This rule shall not apply to any person who has taken and failed to pass the New Hampshire bar examination or the latest bar examination in any other state.

Rule 37. ATTORNEY DISCIPLINE SYSTEM

(1) Attorney Discipline in General:

The attorney discipline system has been established by the supreme court to fulfill its constitutional responsibility to supervise New Hampshire attorneys. The committees constituting the attorney discipline system act independently to investigate and evaluate grievances against attorneys. As set forth in this rule, the decisions of these committees are subject to judicial review by the supreme court. The attorney discipline office is a division within the administrative office of the courts.

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

    (1) professional conduct committee;

    (2) hearings committee;

    (3) complaint screening committee;

    (4) attorney discipline office.

(b) Jurisdiction:  Any attorney admitted to practice law in this State, and any attorney specially admitted by a court of this State for a particular proceeding, and any attorney not admitted in this State who practices law or renders or offers to render any legal services in this State, and 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 discipline 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 discipline 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 and New Hampshire Lawyers Assistance Program 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 or the New Hampshire Lawyers Assistance Program 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.

(f)  Disciplinary matters may be handled by attorneys of the attorney discipline office fulfilling functions of either general counsel or disciplinary counsel, as the general counsel may from time to time assign.

(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 imposing a reprimand, public censure or a suspension of six (6) months or less. An appeal shall not be a mandatory appeal.  See Rule 3.  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 exercises 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 discipline office to be within the jurisdiction of the attorney discipline 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 discipline office, or a complaint that is drafted and docketed by the attorney discipline office after an inquiry by that office. If after docketing, the attorney discipline office or the complaint screening committee determines that a complaint is not within the jurisdiction of the attorney discipline 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 discipline office as may from time to time be designated to assist disciplinary counsel.

(f) Grievance: “Grievance” means a written submission filed with the attorney discipline 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 discipline 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 discipline 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 attorney discipline office or the complaint screening committee later determines that the docketed complaint is not within the jurisdiction of the attorney discipline 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)(b) of this rule.

(h) Referral: “Referral” means a grievance received by the attorney discipline 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 14 regarding reinstatement.

(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.  The court shall attempt to appoint members of the professional conduct committee from as many counties in the State as is practicable; 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. 

(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 recommend, after consultation with the supreme court, to the director of the administrative office of the courts, the appointment of attorney discipline office general counsel , and to recommend to the director of the administrative office of the courts the retention of independent bar counsel if needed. 

(2) To direct the actions and performance of general counsel and other staff in the performance of its adjudicatory functions hereinafter prescribed.

(3) 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, administer a reprimand, public censure or a suspension not to exceed six (6) months.

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

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

(6) 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.

(7) 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.

(8) 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.

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

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

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

(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 discipline system.

(14)  Upon its approval of the annual report prepared by the attorney discipline office, to file a copy of the report with the chief justice of the supreme court and to make copies of the report available to the public.

(15)  To issue discretionary monetary sanctions against a disciplined attorney in the form of the assessment of costs and expenses pursuant to Rule 37(19).

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 appeals shall not be mandatory appeals.  Such rights must be exercised within thirty (30) days from the date on the notice of the finding and sanction. In the event that a timely request for reconsideration pursuant to Supreme Court Rule 37A(VI) is filed, the right to appeal the finding of professional misconduct and/or 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. 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) Consistent with the rule of confidentiality applicable to the work of the attorney discipline system, to serve as liaison between the professional conduct committee and the board of governors of the New Hampshire Bar Association.

(2) 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 discipline 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 discipline 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. 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, to divert attorneys out of the system, or to dismiss a complaint after investigation.

(2) To consider and act on reports by staff members of the attorney discipline 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 discipline system and/or does not meet the requirements for docketing.

(4) To dismiss complaints with a finding of no professional misconduct.

(5) To dismiss complaints for any other reason.  If the committee determines that there is no reasonable likelihood that a complaint can be proven by clear and convincing evidence, the complaint should be dismissed.

(6) To divert attorneys out of the attorney discipline 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 only where there is a reasonable likelihood that professional misconduct could be proven by clear and convincing evidence.

(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, 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 Discipline Office:

(a) The attorney discipline office is a division within the administrative office of the courts. The attorney discipline office is managed by general counsel of the attorney discipline office. Employees of the attorney discipline office are judicial branch employees and are subject to all rules and policies of the judicial branch.

(b) The director of the administrative office of the courts, after consultation with the chair of the professional conduct committee and the supreme court, shall appoint the attorney discipline office general counsel.

(c) The director of the administrative office of the courts shall consult with the chair of the professional conduct committee regarding the performance of attorney discipline office general counsel and may provide information to the chair related to the performance of attorney discipline office general counsel.

(d) The director of the administrative office of the courts, after consultation with the chair of the professional conduct committee, shall appoint the attorney discipline office deputy general counsel, disciplinary counsel and deputy disciplinary counsel.

(e) The director of the administrative office of the courts shall:

(1) employ assistants as may be deemed necessary whether full-time or part-time; and

(2) retain independent bar counsel if needed.

(f) 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 discipline office and, in appropriate cases, the professional conduct committee in matters filed with the supreme court.

(6) To assist general counsel in performing the duties of general counsel as needed.

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

(3) To dismiss complaints with a finding of no professional misconduct.

(4) To dismiss complaints for other good cause. If the general counsel determines that there is no reasonable likelihood that a complaint can be proven by clear and convincing evidence, the complaint should be dismissed.

(5) To divert attorneys out of the attorney discipline system when appropriate and subject to the attorney complying with the terms of diversion. All diversion would be public unless the general counsel 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 didnot exist.

(6) To present complaints to the complaint screening committee with recommendations for diversion, dismissal for any reason or referral to disciplinary counsel for a hearing.

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

(8) To perform legal services as required for the committees of the attorney discipline system.

(9) With respect to the administrative functions of the attorney discipline office, to report to the director of the administrative office of the courts and to manage the attorney discipline system including but not limited to maintaining permanent records of the operation of the system, assisting with preparation of the annual budget, and preparation of an annual report summarizing the activities of the attorney discipline system during the preceding year.

(10) After consultation with disciplinary counsel, to retain experts or other professional assistance to prosecute disciplinary matters from funds appropriated for such purposes.

(7) Immunity:

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

(8) Discovery and Subpoena Power:

(a) At any stage prior to the filing of a notice of charges, attorneys from the attorney discipline office may issue subpoenas and subpoenas duces tecum to summon witnesses with or without documents.

(b) At any stage after the filing of a notice of charges, attorneys from the attorney discipline office, counsel for respondent attorneys and respondent attorneys representing themselves may issue subpoenas and subpoenas duces tecum to summon witnesses with or without documents, and may conduct additional discovery, including, but not limited to, interrogatories and depositions.  Notice of the issuance of any such subpoena shall be served on the opposing party.

(c) Whenever a subpoena or subpoena duces tecum is sought in this state pursuant to the law of another jurisdiction for use in lawyer discipline or disability proceedings, and where the issuance of a subpoena or subpoena duces tecum has been duly approved under the law of the other jurisdiction, attorneys from the attorney discipline office may issue a subpoena or subpoena duces tecum as provided in this section to compel the attendance of witnesses and production of documents.

(d)  Access to Court Records

(1)  General Rule.  At any stage, attorneys from the attorney discipline office may submit a written request seeking access to records relevant to its investigation into a pending disciplinary matter to a clerk of court.  If the records requested by the attorney discipline office do not include any confidential documents or confidential information, the clerk shall provide prompt and complete access to the records, and if requested, copies of the relevant documents.  If the records requested by the attorney discipline office include any confidential documents or confidential information, the attorney discipline office shall follow the procedures set forth in section (2).

(2)  Access to Confidential Documents and Confidential Information.

(A)  If the attorney discipline office seeks access to confidential or sealed records, the attorney discipline office need not file a motion to intervene, but shall:

(i)  file a written request to gain access to the records explaining how the records are relevant in a pending disciplinary action; and

(ii)  file a motion to seal along with the written request.

(B)  The court shall promptly provide to all of the parties in the underlying court action notice and copies of the written request and motion to seal.

(C) The parties in the underlying court action shall have 10 days from the date of the notice to file a written objection to the disclosure of the requested materials.

(D)  If none of the parties in the underlying court action object to the disclosure of the requested materials within 10 days of the filing of the written request and if the production of records pursuant to this rule does not contravene any statutes governing the production of confidential materials, the court may disclose the materials to the attorney discipline office.  If none of the parties object but the court nevertheless is disinclined to release the records to the attorney discipline office, the court shall hold a non-public hearing, at which the attorney discipline office must demonstrate good cause for access to the records.

(E)  If one or more parties in the underlying court action object to the disclosure of the requested materials, the court shall promptly schedule a non-public hearing, at which the attorney discipline office must demonstrate good cause for access to the records. 

(F)  Protective Orders.  Whenever the court discloses records pursuant to this rule, the court shall issue a protective order governing the disclosure and use of the records.  The protective order shall provide that:

(i)  the attorney discipline office shall not disclose such records to any person except as necessary in connection with the prosecution or defense of the disciplinary matter;

(ii)  any person to whom disclosure is made shall acknowledge in writing prior to the disclosure that he or she has been made aware of and agrees to comply with the protective order;

(iii) at the conclusion of the disciplinary proceeding, each party shall return to the attorney discipline office that party’s copy of the records, whereupon the attorney discipline office shall destroy said records; and

(iv) thereafter, the attorney discipline office shall submit an affidavit to the court stating that said records have been destroyed. The Court may modify the foregoing terms of a protective order, or impose such additional terms as may be necessary in a particular case.

(G)  Any and all confidential documents and confidential information obtained by the attorney discipline office pursuant to this rule shall be subject to a protective order, as set forth in section (F) of this rule, and shall be available to the respondent in a disciplinary matter, to the adjudicatory bodies of the attorney discipline system, and to the attorney discipline office’s and respondent’s potential or actual witnesses, including those witnesses designated as experts, as part of formal and informal disciplinary proceedings.  To the extent confidential documents or confidential information obtained pursuant to this rule are utilized during a disciplinary hearing or other proceeding, such hearing or proceeding shall be closed to the public during any disclosure of, testimony or discussion involving the confidential document or confidential information.  Such confidential records shall otherwise remain sealed and shall not, absent further court order, become part of the public file maintained by the attorney discipline office.

(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. Any order of suspension entered pursuant to this provision shall be effective immediately.

(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. The certified copy shall constitute evidence sufficient to issue an order of immediate suspension under subparagraph (a) without further hearing.

(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 by issuing an order to the attorney to show cause why the attorney should not be disbarred as a result of the conviction.  If the court determines that no such good cause has been shown, the court shall issue an order of disbarment, or such other discipline as the court shall deem appropriate.  If the court determines that the attorney has shown cause why disbarment may not be appropriate, the court shall 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, however, that final discipline will not be imposed 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 discipline office for such action as it deems appropriate. Referral to the attorney discipline 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) Any attorney who has been convicted of a crime in this state or in any other state shall notify the court, in writing, within ten (10) days of sentencing on said conviction.  The notice shall inform the court of the crime, the criminal statute violated, the court of conviction, the date of conviction, and the sentence imposed. 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 discipline 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 discipline 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.

(9-A)  Proceedings When an Attorney is Alleged to have Engaged in Conduct that Poses a Substantial Threat of Serious Harm.

(a)     The attorney discipline office may file a petition for interim suspension or other relief in this court alleging that an attorney has engaged in conduct that poses a substantial threat of serious harm to the public. If the attorney discipline office’s petition alleges that an attorney’s serious misconduct poses an immediate and substantial threat of serious harm to the public or the integrity of the legal profession, the provisions of (9-B), Summary Suspension Procedure, shall apply.

(b)     The term “substantial threat of serious harm” encompasses any non-serious crime, conduct, or course of conduct that substantially impairs the attorney’s ability to continue to practice in conformity with the Rules of Professional Conduct and Rule 50, or creates a substantial risk of harm to the public if the attorney is not suspended on an interim basis.

(c)     The petition must state with particularity the conduct alleged as well as the bases upon which the interim suspension is necessary to prevent a threat of serious harm to the public.  The attorney discipline office shall serve the petition on the attorney by first-class mail, and service shall be deemed complete upon mailing.  Service upon the respondent attorney at the latest address provided to the New Hampshire Bar Association shall be deemed to be sufficient.  The attorney shall have twenty (20) days from the date of mailing to respond.  If the attorney contests the interim suspension, the court will convene a hearing before a judicial referee or a hearing panel of the professional conduct committee.  If the attorney consents to the interim suspension, the court may issue an order of interim suspension which will be effective immediately.  If the attorney fails to respond to the petition, the allegations of the petition shall be deemed to be admitted, and no hearing shall be required.

(d)     The hearing on the petition shall be recorded.  The parties shall have thirty (30) days to prepare for the hearing, but no continuance of the hearing shall be granted absent extraordinary circumstances.  The attorney discipline office shall have the burden to prove the need for interim suspension by clear and convincing evidence.  The referee or panel may consider whether measures short of interim suspension adequately safeguard the public against the threat of substantial harm.

(e)     After the hearing, the referee or panel shall issue a recommendation with regard to the need for interim suspension within ten (10) days, and shall forward that recommendation, with the record of the hearing, to the court.  The court shall review the recommendation and the record.  It may enter an order of interim suspension, dismiss the petition for interim suspension, issue an order directing the attorney to abide by specific conditions in lieu of interim suspension, or remand the matter for further proceedings.  Any order issued by the court shall be effective immediately, and shall remain in effect unless it is modified by the court, or it is superseded by an order stemming from disciplinary proceedings arising out of the same or related conduct.

(9-B) Summary Suspension Procedure.

(a)  The Summary Suspension Procedure shall apply to cases in which the attorney discipline office alleges that a lawyer has: 
(1) engaged in serious misconduct which poses an immediate and substantial threat of serious harm to the public or the integrity of the legal profession; or 
(2) failed to comply with a subpoena validly issued under Rule 37(8), or failed to respond to requests for information from the attorney discipline office made in the course of investigating a docketed matter.

(b)  “Serious misconduct,” for purposes of this Rule, is any misconduct involving (1) mishandling or misappropriation of client or third party property or funds or (2) any other misconduct which by itself could result in a suspension or disbarment.

(c)  The attorney discipline office may file a petition for summary suspension with this court, with copies to the subject attorney, which sets forth with specificity the violation of this section. The petition must state with particularity the conduct alleged as well as the bases upon which the summary suspension is necessary to prevent an immediate and substantial threat of serious harm to the public or the integrity of the legal profession. When the petition for summary suspension is based upon a lawyer’s failure to respond pursuant to Rule 37(9-B)(a)(2), the petition shall be supported by an affidavit of the attorney discipline office affirming the facts set forth in subsection (d). Upon such filing, this court may enter an order of summary suspension and may order such emergency relief as this court deems necessary to protect the public or the integrity of the legal profession.

(d)  The affidavit in support of the petition for summary suspension shall affirm:

(1)  that the lawyer was served with the subpoena or was mailed the request(s) for information at the latest address provided to the New Hampshire Bar Association;

(2)  that the lawyer was afforded a reasonable period of time to comply with the request for information or the subpoena, and has failed to comply, to answer, or to appear; and

(3)  that the subpoena or request for information was accompanied by a statement advising the attorney that failure to comply with the subpoena or request for information may result in summary suspension without further hearing.

(4) Notice of intent to seek summary suspension was both sent by certified mail and was provided in hand to the attorney or attempted in hand without success, despite reasonable efforts.

(e)  Any suspension under the provisions of this Rule shall be immediately effective upon entry of the suspension order and shall be subject to the provisions of Rule 37(16)(g).

(f)  An attorney suspended under the provisions of subsection (c) above may request a hearing by the deadline set forth in the order of suspension. The hearing shall be conducted by a judicial referee or a hearing panel, and shall occur within ten (10) days of the effective date of the suspension.  The judicial referee or hearing panel shall issue a report within ten (10) days of the hearing recommending whether the suspension should be lifted.

(g)  In the interest of justice, the court may, upon the filing of a petition for reinstatement, terminate such suspension at any time after affording the attorney discipline office an opportunity to be heard. The petition for reinstatement shall be accompanied by an affidavit of compliance stating the extent to which the lawyer has cured or abated the immediate threat of serious harm to the public or the integrity of the legal profession, or has otherwise complied with the subpoena or request for information.  A copy of the petition and affidavit shall be sent to the attorney discipline office, which may file a response to the petition and affidavit within 10 days.  The court may take such action on the petition as it deems appropriate.

(h)  If not reinstated pursuant to Rule 37(9-B)(f) or (g), the attorney shall become subject to the provisions of Rule 37(17).

(i)   A lawyer suspended in another jurisdiction pursuant to a procedure similar to that set forth herein may be suspended in this jurisdiction on a reciprocal basis as provided in Rule 37(12).

(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 discipline system or the attorney discipline 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 discipline 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 discipline 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 discipline 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 attorney discipline office containing:

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

(2) An order directing that the attorney or attorney discipline office 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 attorney discipline office 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.

(e) If the court determines that one of the factors set forth in paragraph (d) is present, the court shall refer the matter to the professional conduct committee for its recommendation regarding the discipline to be imposed.

(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)  Reinstatement Following Suspension of Six Months or Less.  An attorney who has been suspended for six months or less pursuant to disciplinary proceedings shall be reinstated by the professional conduct committee following the end of the period of suspension upon the filing of a motion for reinstatement.  The motion for reinstatement shall be filed with the professional conduct committee and served upon disciplinary counsel and shall be accompanied by:

(1)  an affidavit stating that he or she has fully complied with the requirements of the suspension order and has paid any required fees and costs; and

(2) evidence that he or she has satisfactorily completed the Multistate Professional Responsibility Examination since his or her suspension.

(b)  Reinstatement Following Suspension of More Than Six Months.

(1)  An attorney suspended by the court for misconduct, other than for disability, for more than six months shall be reinstated only upon order of the court.  No attorney may petition for reinstatement until the period of suspension has expired.

(2)  Petition.  An attorney who seeks reinstatement following suspension of more than six months shall file a petition for reinstatement with the court.  The petition shall be accompanied by a completed reinstatement form and the requisite filing fee.  The petition shall be under oath and shall:

(A)  specify with particularity the manner in which the petitioner has fully complied with the terms and conditions set forth in all prior disciplinary orders; and

(B)  certify that the petitioner has taken the Multistate Professional Responsibility Examination after entry of the order of suspension and within one year of the filing of the petition for reinstatement, and has received a passing grade as established by the board of bar examiners.

(3) Initial Review of Petition and Reinstatement Form.  The court will review the petition and reinstatement form to determine whether the certifications required by subsection (2) of this rule have been provided and whether the reinstatement form is complete.  If so, the court shall refer the petition and reinstatement form to the professional conduct committee, and shall provide a copy of the petition and reinstatement form to the attorney discipline office.

(4) Publication of Notice of Petition.  If the court refers the petition to the professional conduct committee, the professional conduct committee shall cause a notice to be published in a newspaper with statewide circulation, a newspaper with circulation in the area of the petitioner’s former primary office, and in the New Hampshire Bar News, that the petitioner has moved for reinstatement.  The notice shall also be posted on the judicial branch website.  The notice shall invite anyone to comment on the petition by submitting said comments in writing to the professional conduct committee within twenty (20) days of publication.  All comments shall be made available to the petitioner.  Where feasible, the professional conduct committee shall give notice to the original complainant.

(5)  Hearing.  Upon receipt of the petition, the professional conduct committee may either recommend reinstatement or refer the petition to the hearings committee for prompt appointment of a hearing panel.

(A) The hearing panel chair shall conduct and hold a prehearing conference within thirty (30) days of the appointment of the hearing panel. 

(B) The hearings committee shall conduct a hearing within 120 days of the appointment of the hearing panel.

(C) The petitioner shall bear the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competence, and learning in the 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.

(D)  Attorneys from the attorney discipline office may participate in the hearing to present evidence and to cross-examine the petitioner and any witnesses.

(E)  At the conclusion of the hearing, the hearing panel shall promptly file with the professional conduct committee a report containing its findings and recommendations and the record of the proceedings.

(6)  Review by the Professional Conduct Committee.  Following receipt of the report, the professional conduct committee shall:

(A) review the report of the hearing panel and the record;

(B) allow the filing of written memoranda by disciplinary counsel and the petitioner;

(C) review the hearing transcript;

(D) hold oral argument if requested by a party or ordered by the Committee; and

(E) file its own findings and recommendations with the court, together with the record, and provide a copy of the recommendations and findings to the petitioner.

(7) Final Order by the Court.  Following receipt of the recommendation and the record from the professional conduct committee:

(A)  the court shall notify the petitioner and disciplinary counsel that they must, within 30 days of the court’s order, identify any legal or factual issues the parties wish the court to review;

(B)  if neither party identifies an issue for review, the court may act upon the recommendations without further proceedings;

(C)  if either party identifies an issue for review, the court may issue a scheduling order setting forth a briefing schedule;

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

(c)  Readmission Following Disbarment or Resignation While Under Disciplinary Investigation.

(1) Timing and Other Restrictions.  The following restrictions apply to any New Hampshire licensed attorney who has been disbarred by the court or who has resigned while under disciplinary investigation and who wishes to apply for readmission:

(A)  the attorney may not apply for readmission until the expiration of seven years from the effective date of the disbarment or resignation.

(B)  If the attorney has been disbarred in New Hampshire as a result of having been disbarred in another jurisdiction, see Supreme Court Rule 37(12)(“Reciprocal Discipline”), he or she must be readmitted to practice law in the other jurisdiction prior to applying for readmission in New Hampshire. 

(C)  An attorney applying for readmission following disbarment may not apply for admission by motion pursuant to New Hampshire Supreme Court Rule 42(XI).

(2)  Petition.  An attorney who seeks readmission following disbarment or resignation while under disciplinary investigation shall file a petition for readmission with the court.  The petition shall be under oath and shall:

(A) specify with particularity the manner in which the petitioner has fully complied with all of the terms and conditions set forth in all prior disciplinary orders;

(B) certify, if the attorney was disbarred in New Hampshire as a result of having been disbarred in another jurisdiction, that he or she has been readmitted to practice law in the other jurisdiction prior to applying for readmission in New Hampshire;

(C) certify that the petitioner has taken the New Hampshire Bar Examination within one year of the filing of the petition and has received a passing grade as established by the Board of Bar Examiners; and

(D) certify that the petitioner has taken the Multistate Professional Responsibility Examination after entry of the order of disbarment, and has received a passing grade as established by the Board of Bar Examiners.

(3) Initial Review of Petition.  The court will review the petition to determine whether the certifications required by subsection (2) of this rule have been provided.  If so, the court shall refer the petition to the professional conduct committee, the office of bar admissions, and the character and fitness committee for the formation of a special committee on readmission to consider the petition and to make a recommendation to the court.  The court shall provide a copy of the petition for readmission to the attorney discipline office.

(4)  The petitioner’s application to take the bar examination, including the petition and questionnaire for admission to the New Hampshire Bar, and all non-privileged documents on file with the office of bar admissions relating to the petition and questionnaire, shall be provided to the attorney discipline office.  All documents on file with the office of bar admissions relating to the petition and questionnaire for admission to the New Hampshire Bar shall remain confidential and not available for public inspection, subject to the exceptions listed in Supreme Court Rule 42(IV)(g), until they are submitted as exhibits at the hearing before the special committee on readmission.

(5)  The Special Committee on Readmission.  Upon receipt of the petition, the chair of the professional conduct committee and the chair of the character and fitness committee shall promptly select members of each committee to serve on the special committee on readmission.  Three members of the professional conduct committee and three members of the character and fitness committee shall serve on the special committee.  One of the six members of the special committee shall be a layperson.  The special committee shall select a chair.

(6)  Publication of Notice of Petition.  The special committee on readmission shall cause a notice to be published in a newspaper with statewide circulation, a newspaper with circulation in the area of the petitioner’s former primary office, and in the New Hampshire Bar News, that the petitioner has moved for readmission.  The notice shall also be posted on the judicial branch website.  The notice shall invite anyone to comment on the petition by submitting said comments in writing to the professional conduct committee within twenty (20) days of publication.  All comments shall be made available to the petitioner.  Where feasible, the special committee on readmission shall give notice to the original complainant.

(7)  Hearing Before Special Committee on Readmission.

(A)  The special committee chair shall conduct and hold a prehearing conference within thirty (30) days of the appointment of the special committee on readmission.

(B) The special committee on readmission shall conduct a hearing within 120 days of the formation of the special committee.

(C) The petitioner shall bear the burden of demonstrating by clear and convincing evidence that he or she has the competence and learning in the 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.

(D) The petitioner shall also bear the burden of demonstrating by clear and convincing evidence that he or she has good moral character and fitness. See Supreme Court Rule 42B.

(E)  The special committee on readmission shall hold a hearing on the record and, for good cause, may order that the hearing or portions of the hearing be closed to the public, and, for good cause, may order that exhibits be sealed.

(F) Attorneys from the attorney discipline office and/or the office of bar admissions may participate in the hearing to present evidence and to cross-examine the petitioner and any witnesses.

(G)  At the conclusion of the hearing, the special committee shall provide a copy of its written findings and recommendation to the petitioner.  Unless the petitioner withdraws the petition within thirty days of the date of the written findings and recommendations, the report together with the record, shall be filed with the court.

(8)  Final Order by the Court.  Following receipt of the recommendation and the record from the special committee on readmission:

(A) the court shall notify the petitioner and disciplinary counsel that they must, within 30 days of the court’s order, identify any legal or factual issues the parties wish the court to review;

(B)  if neither party identifies issues for review, the court may act upon the recommendations without further proceedings;

(C)  if either party identifies an issue for review, the court may issue a scheduling order setting forth a briefing schedule and any other matters as shall be deemed desirable or necessary;

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

(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)  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 appeal shall not be a mandatory appeal.  If the appeal is accepted by the court, the court may affirm, reverse or modify the findings of the professional conduct committee.

The filing of an appeal by the respondent shall stay the disciplinary order being appealed unless the professional conduct committee orders otherwise.  If the professional conduct committee orders otherwise, it shall set forth in its order its reasons for doing so.  In all cases, however, the supreme court may on motion for good cause shown stay the disciplinary order.

(b) The professional conduct committee shall initiate disciplinary proceedings requesting a discipline of greater than six (6) months in this court by filing the professional conduct committee’s recommendation and the record of the proceedings with this court.

(c) Following receipt of the recommendation and the record, this court shall serve the respondent attorney with the recommendation at the latest address provided to the New Hampshire Bar Association. Simultaneously, the court shall notify the parties that the parties must, within 30 days of this court’s order thereon, identify any legal or factual issues the parties wish this court to review. Thereafter, this court may issue a scheduling order setting forth a briefing schedule and any other matters as shall be deemed desirable or necessary. There shall not be a de novo evidentiary hearing. In matters resolved by dispositive stipulation, this paragraph shall not apply, though the court retains discretion to reject any dispositive stipulation in whole or in part, or to identify legal or factual issues it wishes the parties to address.

(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 any 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) 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.

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

(i) Appeals to the court shall be in the form prescribed by Rule 10, unless otherwise ordered 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 of Attorney Discipline System; Monetary Sanctions: Expenses Relating to Discipline Enforcement:

        (a) The court shall issue an order, as may be necessary, assessing attorneys a fee to support the attorney discipline system.

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

        (c)  Following any assessment, the professional conduct committee shall send a written statement of the nature and amount of each such expense to the disciplined attorney, together with a formal demand for payment.  The assessment shall become final after 30 days unless the disciplined attorney responds in writing, listing each disputed expense and explaining the reasons for disagreement.  If the parties are unable to agree on an amount, the professional conduct committee may resolve and enforce the assessment by petition to the superior court in any county in the state.

        (d)  A final assessment shall have the force and effect of a civil judgment against the disciplined attorney.  The professional conduct committee may file a copy of the final assessment with the superior court in any county in the state, where it shall be docketed as a final judgment and shall be subject to all legally-available post-judgment enforcement remedies and procedures.

        (e)  The superior court may increase the assessment to include any taxable costs or other expenses incurred in the resolution or enforcement of any assessment.  Such expenses may include reasonable attorney’s fees payable to counsel retained by the committee to resolve or recover the assessment.

        (f)  Any monetary assessment made against a disciplined attorney shall be deemed to be monetary sanctions asserted by the professional conduct committee or the applicable court against such attorney.

(20) Confidentiality and Public Access – Matters Initiated On Or After April 1, 2000:

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 Discipline 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.

(2) All records and materials relating to a grievance determined by the attorney discipline 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) beginning 30 days 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. The records and material shall be maintained at the attorney discipline office for two (2) years from the date of the original filing. After this two-year period, the records shall be destroyed.

(3) Index of Complaints.  The attorney discipline 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.

(b) Grievance Docketed as Complaint: All records and proceedings relating to a complaint docketed by the attorney discipline system shall be available for public inspection (other than work product, internal memoranda, and deliberations) upon the earliest of the following:

(1) When the Attorney Discipline Office general counsel, 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) Records may be destroyed after:

(1) three years of the date of notice of dismissal; or

(2) three years of the date of an annulment in accordance with Rule 37A; or

(3) five years after the death of the attorney-respondent.

(d) 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).

(e) 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 discipline system, shall be available for public inspection.

(f) 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.

(g) 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, the attorney, or other persons. In order to protect the legitimate privacy interests of such persons, 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. 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. Any person aggrieved by a decision on a protective order may, within thirty (30) days of the decision, 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 court has acted or the period for requesting court review has expired.

(h) Disclosure to Authorized Agency: The attorney discipline 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 discipline 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 discipline 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 discipline office proposes to release to the requesting agency. The attorney discipline 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.

(i) Disclosure to Supreme Court for Rule 35 and Rule 36 Review: The attorney discipline 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 35 and Rule 36.

(j) 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.

(k)   Disclosure to Lawyers Assistance Program:  The Attorney Discipline Office shall have the power to disclose otherwise confidential information to the New Hampshire Lawyers Assistance Program whenever the Attorney Discipline Office determines that such disclosure would be in the public interest.

(l) 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 underlying 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 discipline system pending the grievance or complaint becoming public in accordance with the provisions of this section.

(m) 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.

(n)  With respect to records to be made available for public inspection under this Rule or Rule 37A, final disciplinary decisions of the professional conduct committee and the supreme court shall be made available for public inspection electronically via the internet; all other records shall be made available for public inspection only at the attorney discipline office.

(21) Confidentiality and Public Access -Matters Initiated Before April 1, 2000:

Applicability Note: Section 21 shall apply to records and proceedings in matters initiated before April 1, 2000.

All records and proceedings involving allegations of misconduct by an attorney shall be confidential and shall not be disclosed except:

(a) 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

(b) 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

(c) 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 (a) and (b); or

(d) When the respondent attorney, prior to the issuance of a notice of charges as prescribed in subsection (a), requests that the matter be public, in which case the entire file, other than the work product and internal memoranda, of the attorney discipline system, shall be public; or

(e) 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 discipline system shall be public.

(22) Copy of Rule:

A copy of Supreme Court Rules 37 and 37A shall be provided to all grievants, complainants, and respondent attorneys.

Rule 37A. RULES AND PROCEDURES OF ATTORNEY DISCIPLINE SYSTEM

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(I) General Provisions

(a) Jurisdiction: The jurisdiction of the attorney discipline 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 discipline system to develop the facts relating to, and to reach a just and proper determination of matters brought to the attention of the attorney discipline 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 discipline office to be within the jurisdiction of the attorney discipline system and to meet the prerequisites for docketing as a complaint as set forth in section (II)(a)(3)(B) of this rule, and that is docketed by the attorney discipline office, or a complaint that is drafted and docketed by the attorney discipline office after an inquiry by that office. If after docketing, the attorney discipline office general counsel or the complaint screening committee determines that a complaint is not within the jurisdiction of the attorney discipline system and/or does not meet the prerequisites for docketing set forth in sections II(a)(3)(B)(i)-(iv) of this rule, 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.

Conventionally:  The filing of a grievance with the attorney discipline office in paper form, delivered to the attorney discipline office in person, by United States mail, or by other means.

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 discipline 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 attorney discipline office general counsel, the complaint screening committee or the professional conduct committee as an alternative to discipline for minor misconduct.

Electronically: The filing of a grievance with the attorney discipline office in electronic form through the attorney discipline office website.

Electronic Signature:  A signature, other than an inked signature, as set forth in sections II(a)(3)(B)(iii)(1) and (2).

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 discipline office; (b) dismissing or diverting complaints on the grounds set forth in Rule 37(6)(c) or presenting complaints to the complaint screening committee with recommendations for diversion, dismissal for any reason 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 discipline system; and (e) overseeing and performing administrative functions for the attorney discipline 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, and such other attorneys of the attorney discipline office as may from time to time be designated to assist general counsel.

Grievance: “Grievance” means a submission filed conventionally or electronically with the attorney discipline office to call its attention to 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 discipline system and/or not to meet the prerequisites 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 discipline system and to meet the prerequisites 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 attorney discipline office general counsel or complaint screening committee later determines that the docketed complaint is not within the jurisdiction of the attorney discipline system and/or does not meet the prerequisites for docketing set forth in sections II(a)(3)(B)(i)-(iv) of this rule, 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 discipline office on its own initiative to determine whether a complaint should be docketed.

Investigation: Fact gathering by the attorney discipline 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 discipline 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)(c)(2) regarding reinstatement.

(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.

(F) Monetary Sanctions Pursuant to Rule 37(19) – by the professional conduct committee or the court.

    (2) The attorney discipline office general counsel, 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 discipline 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

The fact that an attorney 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 discipline 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 attorney discipline office general counsel, 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 attorney discipline office general counsel, 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 attorney discipline office general counsel, 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 discipline 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 attorney discipline office general counsel, 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 attorney discipline office general counsel, 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 discipline 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 discipline office shall a) prepare diversion agreements setting forth the terms determined by the attorney discipline office general counsel, 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 discipline office may, from time to time, publicly announce the nature, frequency and substance of diversion (unless made non-public) and sanctions imposed by the attorney discipline 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 discipline office in accordance with section (II)(a) or a complaint is generated and docketed by the attorney discipline office under section (II)(a)(5)(B) of this rule within two (2) years after the commission of the alleged misconduct; 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.

    (3) If a grievance is filed after the period prescribed in subsection (1) has expired, the attorney discipline 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 discipline 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, a grievance or referral may nonetheless be filed with the attorney discipline office so long as it is filed within one year after final conclusion of those proceedings notwithstanding the expiration of the period of limitation.

(j)  Status of Complainants.  Complainants are not parties to informal or formal disciplinary proceedings.  Complainants lack standing to file pleadings or object to motions or recommendations of disposition of disciplinary matters.

(k)  Disciplinary matters may be handled by attorneys of the Attorney Discipline Office fulfilling functions of either general counsel or disciplinary counsel, as the general counsel may from time to time assign.

(II) Investigations and Informal Proceedings

(a) Preliminary Provisions

    (1) Responsibility of Attorney Discipline Office

The attorney discipline office, through general counsel, shall investigate all matters involving alleged misconduct of attorneys which fall within the jurisdiction of the attorney discipline 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 discipline 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 discipline office, subject to section II(a)(3)(B)(ii). 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 discipline office which he or she believes may constitute misconduct by an attorney that should be investigated by the attorney discipline 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 discipline office which he or she believes may constitute misconduct by an attorney that should be investigated by the attorney discipline office. Except as otherwise provided, a referral from a court or attorney shall be treated as a grievance. Upon receipt of a referral, if the attorney discipline 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 discipline office and meets the prerequisites for docketing as a complaint as set forth in section (II)(a)(3)(B), the attorney discipline office shall process the grievance as an attorney discipline office generated complaint.

(B) Attorney Discipline Office-Initiated Inquiry. The attorney discipline 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 discipline 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 conventionally or electronically by the attorney discipline 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 discipline system and whether the grievance meets the prerequisites for docketing as a complaint.

         When necessary, general counsel may request additional information or documents from the grievant.  Except for good cause shown, failure of a grievant to provide such additional information and/or documents within twenty (20) days may result in general counsel processing the grievance based on the then existing file, or dismissing the complaint without prejudice.

        Upon receipt of the above information, general counsel may allow a respondent up to thirty (30) days to file a voluntary response if it is deemed necessary to assist in the evaluation process.

        Extensions of time are not favored.

(B) Prerequisites for Docketing Grievance as a Complaint. A grievance shall be docketed as a complaint if it is within the jurisdiction of the attorney discipline system and it meets the following prerequisites:

(i) Violation Alleged. It contains:  (a) a brief description of the legal matter that gave rise to the grievance; (b) a detailed factual description of the respondent’s conduct; (c) the relevant documents that illustrate the conduct of the respondent, or, if the grievant is unable to provide such documents, an explanation as to why the grievant is unable to do so; and (d) whatever proof is to be provided, including the name and addresses of witnesses to establish a violation of a disciplinary rule.

(ii) Standing. With the exception of an attorney discipline office-initiated inquiry or a referral by a judge or attorney, it must be filed by a person who is directly affected by the conduct complained of or who was present when the conduct complained of occurred, and contain a statement establishing these facts.

(iii) Oath or Affirmation. It is typed or in legible handwriting and, with the exception of an attorney discipline office-initiated inquiry or a referral by a judge or attorney, manually or electronically signed by the grievant under oath or affirmation. 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.”

An electronically signed Oath or Affirmation shall be considered a signed original if presented by the grievant in either one of two ways: (1) the typed symbol /s/ followed by the typed name of the registered filer submitting the document (example:  /s/ John Smith); or (2) a graphic representation of the filer’s actual signature.

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

(v) Sufficiency of Allegations. The attorney discipline office may decide not to docket a grievance as a complaint if it determines, based on its evaluation of the grievance that there is no reasonable likelihood that a hearing panel would find clear and convincing evidence that the respondent attorney violated the rules of professional conduct.

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

    (4) Disposition of Grievance after Initial Screening.

(A) Lack of Jurisdiction. If the attorney discipline 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 discipline 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. The attorney discipline 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 Prerequisites. If the attorney discipline office determines that a grievance fails to meet the prerequisites 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 Rule 37(20).

(C) Reconsideration of Attorney Discipline Office’s Decision. A grievant may file a written request for reconsideration of the attorney discipline office’s decision that the grievance is not within the jurisdiction of the attorney discipline system or does not meet the prerequisites 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 discipline 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 discipline 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 discipline 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 discipline office and meets the prerequisites 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 Discipline Office-generated Complaint. If, after undertaking and completing an inquiry on its own initiative, the attorney discipline 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 discipline 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 may (1) dismiss or divert a complaint on the grounds set forth in Rule 37(6)(c); or (2) present the complaint to the complaint screening committee with recommendations for diversion as provided in section (I)(g), dismissal for any reason or referral to disciplinary counsel for a hearing.

    At any time while general counsel is investigating a docketed complaint, the respondent may notify general counsel that the respondent waives the right to have the matter considered by the complaint screening committee and consents to the matter being referred to disciplinary counsel for a hearing.  Agreement by the respondent to referral for a hearing shall not be considered an admission of misconduct or a waiver of any defenses to the complaint.

Meetings of the complaint screening committee shall be in the nature of deliberations and shall not be open to the public, respondents, respondents’ 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 Attorney Discipline Office General Counsel or the Complaint Screening Committee.

(A) Diversion. In any matter in which the attorney discipline office general counsel or 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 Attorney Discipline Office General Counsel or the complaint screening committee determines that a complaint should be dismissed, either on grounds of no professional misconduct or any other reason, general counsel or the committee shall dismiss the complaint and it shall notify the complainant and the respondent in writing and the attorney discipline office shall close its file on the matter.

(C) Formal Proceedings. If the respondent agrees with the recommendation of the Attorney Discipline Office General Counsel to refer a complaint to disciplinary counsel, or the complaint screening committee determines that formal proceedings should be held, the complaint shall be referred 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 or, alternatively, for waiver of formal proceedings by respondent and the filing of stipulations as to facts, rule violations and/or sanction.

(b) 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.

(c) Resignation by a New Hampshire Licensed Attorney under Disciplinary Investigation.   

(1) Recommendation to the Court. Upon receipt by any component part of the attorney discipline 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 therefore. 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.

(2) 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.

(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.

(aa)  Stipulations

(1)     Dispositive Stipulations as to Facts, Rule Violations and Sanction

(A) The respondent and the attorney discipline office may enter into a stipulation to facts, rule violations, and sanction disposing of all issues at any time after a file has been referred to disciplinary counsel by the complaint screening committee.

(B) If a dispositive stipulation is reached before a hearing panel has been appointed, the stipulation shall be filed with and reviewed by the professional conduct committee. If a dispositive stipulation is reached after a hearing panel has been appointed, it shall be filed with and reviewed by the hearing panel.

(2) Partial Stipulations

(A) A partial stipulation to resolve some but not all issues of fact, rule violation and sanction may be entered into by the parties at any time after a file has been referred to disciplinary counsel by the complaint screening committee.

(B) A partial stipulation shall be filed with a hearing panel. If a hearing panel has not been appointed, one shall be appointed prior to the filing of the partial stipulation.

(C) The hearing panel shall review the partial stipulation and approve, conditionally approve or reject the partial stipulation in accordance with Rule 37A(III)(aa)(3). A partial stipulation approved by the hearing panel shall be deemed binding on all matters stipulated therein.

(D) Upon the hearing panel’s review of a partial stipulation, any remaining contested issues of facts, rule violations and sanction shall be heard by the hearing panel pursuant to Rule37A(III)(b) and (c).

(3) Review of Stipulation to Facts, Rule Violations and/or Sanction

(A) The professional conduct committee or the hearing panel (the “reviewing body”) shall review a stipulation based solely on the record agreed to by the respondent and disciplinary counsel. Either party may request to appear before the reviewing body to address the stipulation, or the reviewing body may, in its discretion, direct the parties to appear before it to address the stipulation. The oral proceedings on stipulations shall not be recorded or transcribed and shall not become part of the record.

(B) The reviewing body may accept, reject, or conditionally accept the stipulation and shall issue a written order or report, as appropriate, with supporting grounds.

(C) If the reviewing body accepts the stipulation in its entirety, the reviewing body shall adopt all findings of fact and conclusions of law in the stipulation.

(D) If the reviewing body rejects the stipulation in its entirety, the rejected stipulation has no force or effect and neither it nor the fact of its execution is admissible into evidence in any disciplinary, civil or criminal proceeding.

(E) The reviewing body may conditionally approve a stipulation upon agreement by the respondent and disciplinary counsel to a different sanction, probation, or other term the reviewing body deems necessary to accomplish the purposes of lawyer discipline.

(i) The conditionally approved stipulation is deemed approved by the reviewing body, if within 21 days of service of the reviewing body’s order or report, or within additional time granted by the reviewing body, both parties consent in writing to the conditional terms of the order.

(ii) Absent such consent, the parties may amend and resubmit the stipulation to the reviewing body or, alternatively, disciplinary counsel may file a notice of charges or otherwise proceed.

(iii) Absent consent or amendment and resubmission of the stipulation, the stipulation has no force or effect and neither it nor the fact of its execution is admissible into evidence in any disciplinary, civil or criminal proceeding.

(b) Institution of Proceedings.

    (1) General.

    Upon receipt of a file referred by the attorney discipline office general counsel or 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; Initial Disclosure

    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. At the time of filing the notice of charges or as soon thereafter as is practicable, disciplinary counsel shall provide respondent with bates-stamped copies of all relevant documents (excluding work product and internal memoranda of the attorney discipline office).

    (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.

    (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 discipline 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 discipline 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 in all matters. The pre-hearing conference shall be held by the hearing panel chair no earlier than sixty (60) days after an Answer has been filed. 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 exchanging of proposed exhibits; deadline for objections to exhibits; exhibits not objected to shall be deemed stipulated exhibits; 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 ninety (90) days after the date of the conference, except for good cause shown.

      (7) 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) 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.

    (6) 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.

    (7) 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.

    (8) Photographing, Recording and Broadcasting.

        (A) The hearing panel should permit the media to photograph, record and broadcast all proceedings that are open to the public.  The hearing panel may limit electronic media coverage if there is a substantial likelihood of harm to any person or other harmful consequence.  Except as specifically provided in this rule, or by order of the hearing panel, no person shall within the hearing room take any photograph, make any recording, or make any broadcast by radio, television or other means in the course of any proceeding.

        (B) 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.

        (C)   Proposed Limitations on Coverage by the Electronic Media.  Any party to a formal proceeding – or any other interested person – shall notify the hearings committee at the inception of a matter, or as soon as practicable, if that person intends to ask the hearing panel to limit electronic media coverage of any proceeding that is open to the public.  Failure to notify the hearings committee in a timely fashion may be sufficient grounds for the denial of such a request.  In the event of such a request, the hearings committee or hearing panel shall either deny the request or issue an order notifying the parties to the proceeding and all other interested persons that such a limitation has been requested, establish deadlines for the filing of written objections by parties and interested persons, and order an evidentiary hearing during which all interested persons will be heard.  The same procedure for notice and hearing shall be utilized in the event that the hearing panel sua sponte proposes a limitation on coverage by the electronic media.  A copy of the order shall, in addition to being incorporated in the case docket, be sent to the Associated Press, which will disseminate the order to its members and inform them of upcoming deadlines/hearing.

        (D) Advance Notice of Requests for Coverage.   Any requests to bring cameras, broadcasting equipment and recording devices into a hearing room for coverage of any proceedings shall be made as far in advance as practicable.  If no objection to the requested electronic coverage is received by the hearings committee or hearing panel, coverage shall be permitted in compliance with this rule.  If an objection is made, the media will be so advised and the panel will conduct an evidentiary hearing during which all interested parties will be heard to determine whether, and to what extent, coverage by the electronic media or still photography will be limited.

        (E) Pool Coverage.  The hearing panel retains discretion to limit the number of still cameras and the amount of video equipment in the hearing room at one time and may require the media to arrange for pool coverage.  The panel will allow reasonable time prior to a proceeding for the media to set up pool coverage for television, radio and still photographers providing broadcast quality sound and video.

            (1) It is the responsibility of the news media to contact the attorney discipline office in advance of a proceeding to determine if pool coverage will be required.  If the hearing panel has determined that pool coverage will be required, it is the sole responsibility of the media, with assistance as needed from the attorney discipline office, to determine which news outlet will serve as the “pool.”  Disputes about pool coverage will not be resolved by the hearing panel.   Access may be curtailed if pool agreements cannot be reached.

            (2) In the event of multiple requests for media coverage, because scheduling renders a pool agreement impractical, the attorney discipline office retains the discretion to rotate media representatives into and out of the courtroom.

        (F) Live Feed. Except for good cause shown, requests for live coverage should be made at least five (5) days in advance of a proceeding.

        (G) Exhibits. For purposes of this rule, access to exhibits will be at the discretion of the hearing panel.  The panel retains the discretion to make one “media” copy of each exhibit available in the attorney discipline office.

        (H) Equipment. Exact locations for all video and still cameras, and audio equipment within the hearing room will be determined by the hearing panel.  Movement in the hearing room is prohibited, unless specifically approved by the panel.

            (1) Placement of microphones in the hearing room will be determined by the hearing panel.  An effort should be made to facilitate broadcast quality sound.  All microphones placed in the hearing room will be wireless.

            (2) Video and photographic equipment must be of professional quality with minimal noise so as not to disrupt the proceedings; flash equipment and other supplemental lighting or sound equipment is prohibited unless otherwise approved by the hearing panel.

        (I) Restrictions. Unless otherwise ordered by the hearing panel, the following standing orders shall govern.

            (1) No flash or other lighting devices will be used.

            (2) Set up and dismantling of equipment is prohibited when the proceedings are in session.

            (3) No camera movement during the proceedings.

            (4) No cameras permitted behind the respondent’s table.

            (5) Broadcast equipment will be positioned so that there will be no audio recording of conferences between attorney and client or among counsel and the hearing panel at the bench.  Any such recording is prohibited.

            (6) Photographers and videographers must remain a reasonable distance from parties, counsel tables, alleged victims, witnesses and families unless the hearing participant voluntarily approaches the camera position.

            (7) All reporters and photographers will abide by the directions of the hearing room officers at all times.

            (8) Broadcast or print interviews will not be permitted inside the hearing room before or after a proceeding.

            (9) Photographers, videographers and technical support staff covering a proceeding shall avoid activity that might distract participants or impair the dignity of the proceedings.

            (10) Appropriate dress is required.

(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. At any time during the hearing panel proceedings, respondent and disciplinary counsel may request approval of a partial or dispositive stipulation. The hearing panel shall forward to the committee any stipulations approved by the hearing panel. Such approved stipulations shall accompany the hearing panel’s written report on contested issues of fact, rule violation and sanction.

    (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, stipulations, 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 to address any issues in the hearing panel reports, stipulations or record agreed to by the parties. The committee may, in its discretion, direct the parties to appear before it to address any issues raised in dispositive or partial stipulations, as set forth in Rule37A(III)(aa)(C).

(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 dispositive or partial stipulations, 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. In making such determination, the committee shall:

(i) Review the hearing panel’s report addressing any contested matters of fact and law. The committee shall uphold the hearing panel’s findings of fact unless clearly erroneous or manifestly in error. The committee shall review the hearing panel’s conclusions of law and recommendation of sanction de novo.

(ii) Review all stipulations in accordance with Rule 37A(III)(aa)(C) and issue orders thereon. The committee shall state in its order the basis for rejection of any stipulation and shall remand remaining contested issues.

(D) After such determination, the professional conduct committee may:

(i) dismiss complaints, 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 discipline system as appropriate and on such terms and conditions as is warranted; and

(iv) recommend the imposition of disbarment or of suspension for a period in excess of six (6) months by filing such recommendation with this court as provided in Rule37(16);

(v) assess to a disciplined attorney to the extent appropriate, in whole or in part, expenses incurred by the attorney discipline system in the investigation and enforcement of discipline.  An assessment made under this section shall have the same force, effect and characterization and shall be subject to the same procedures for finalization, resolution and enforcement as an assessment under Rule 37(19).

(E) If neither disciplinary counsel nor the respondent requests oral argument, the professional conduct committee may direct the parties to appear before it on stipulations and shall make its decision in all matters based on the hearing panel report, the hearing transcript, and any memoranda that may be filed or, for stipulations, on the record agreed to by the parties and any oral statements presented by the parties.

    (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 recommendation 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 recommendation on sanction to the respondent, disciplinary counsel and the complainant, and it shall file such recommendation with the Supreme Court.

    (4) Appeal of Sanction of Reprimand, Censure or Suspension of (6) Months or Less.

(A) 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 in accordance with Rule 10, unless otherwise ordered by the court.  The appeal shall not be a mandatory appeal.  The appeal shall be public.

(B) The filing of an appeal by the respondent shall stay the disciplinary order being appealed unless the professional conduct committee orders otherwise.  If the professional conduct committee orders otherwise, it shall set forth in its order its reasons for doing so.  In all cases, however, the supreme court may on motion for good cause shown stay the disciplinary order. 

(IV) Confidentiality and Public Access

The duties of confidentiality in and rights of public access to disciplinary proceedings are detailed in Supreme Court Rule 37(20) and (21).

(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, 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. A person who has been issued a public censure may at any time after ten (10) years from the date of the public censure apply to the professional conduct committee for an order to annul the public censure.

(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 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, 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 discipline 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 discipline systems shall not thereafter disclose the record of the complaint which resulted in a finding of no misconduct, admonition, 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 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. The appeal shall not be a mandatory appeal.  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; provided, however, that a request for reconsideration of a decision of the attorney discipline office general counsel shall be filed with the complaint screening committee within ten (10) days of the date on the decision. The request shall state, with particular clarity, points of law or fact that have been 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 the 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 discipline office or any committee of the attorney discipline 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 discipline office or any committee of the attorney discipline 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.

Rule 38. Code of Judicial Conduct

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Rule 38. Code of Judicial Conduct

PREAMBLE

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[1] An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.

 [2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.

 [3] The Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.

SCOPE

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[1] The Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments that generally follow and explain each Rule. Scope and Terminology sections provide additional guidance in interpreting and applying the Code. An Application section establishes when the various Rules apply to a judge or judicial candidate.

[2] The Canons state overarching principles of judicial ethics that all judges must observe.  Although a judge may be disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules. Where a Rule contains a permissive term, such as “may” or “should,” the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion. 

[3] The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning, and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct. Comments neither add to nor subtract from the binding obligations set forth in the Rules. Therefore, when a Comment contains the term “must,” it does not mean that the Comment itself is binding or enforceable; it signifies that the Rule in question, properly understood, is obligatory as to the conduct at issue.

[4] Second, the Comments identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office.

[5] The Rules of the Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making judicial decisions.

[6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that every transgression will result in the imposition of discipline. Whether discipline should be imposed should be determined through a reasonable and reasoned application of the Rules, and should depend upon factors such as the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.

[7] The Code is not designed or intended as a basis for civil or criminal liability. Neither is it intended to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a court.

TERMINOLOGY

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“Appropriate authority” means the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported.

“Compensation” denotes remuneration for personal services.

“Contribution” means both financial and in-kind contributions, such as goods, professional or volunteer services, advertising, and other types of assistance, which, if obtained by the recipient otherwise, would require a financial expenditure.

“Court personnel” does not include the lawyers in a proceeding before a judge.

“De minimis,” in the context of interests pertaining to disqualification of a judge, means an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality.

“Domestic partner” means a person with whom another person maintains a household and an intimate relationship, other than a person to whom he or she is legally married, but including parties who have entered into a civil union.

“Economic interest” means ownership of more than a de minimis legal or equitable interest. Except for situations in which the judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include:

(1) an interest in the individual holdings within a mutual or common investment fund;

(2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge’s spouse, domestic partner, parent, or child serves as a director, an officer, an advisor, or other participant;

(3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar proprietary interests; or

(4) an interest in the issuer of government securities held by the judge.

“Fiduciary” includes relationships such as executor, administrator, trustee, or guardian.

“Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.

“Impending matter” is a matter that is imminent or expected to occur in the near future.

“Impropriety” includes conduct that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge’s independence, integrity, or impartiality.

“Independence” means a judge’s freedom from influence or controls other than those established by law.

“Integrity” means probity, fairness, honesty, uprightness, and soundness of character.

“Judge” includes the following members of the State of New Hampshire Judicial Branch:  (1) a full-time or part-time judge of any court or division; (2) a full-time or part-time marital master; (3) a referee or other master; and (4) when performing an adjudicatory function, a clerk of court or deputy clerk, including a register of probate or deputy register, and any person performing the duties of a clerk or register on an interim basis.  Not everyone who is a “judge” as defined herein is bound by every canon of the Code of Judicial Conduct- the Code of Judicial Conduct applies to a judge to the extent provided in Supreme Court Rule 38.

“Judicial candidate” means any person, who has been nominated for judicial office.

“Knowingly,” “knowledge,” “known,” and “knows” mean actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

“Law” encompasses court rules as well as statutes, constitutional provisions, and decisional law.

“Member of the candidate’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the candidate maintains a close familial relationship.

“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.

“Member of a judge’s family residing in the judge’s household” means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household.

“Nonpublic information” means information that is not available to the public. Nonpublic information may include, but is not limited to, information that is sealed by statute or court order or impounded or communicated in camera, and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric reports.

“Part time judge” is a judge who serves on a continuing or periodic basis but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full time judge.

“Pending matter” is a matter that has commenced. A matter continues to be pending through any appellate process until final disposition.

“Political organization” means a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office.

“Require.”  The rules prescribing that a judge “require” certain conduct of others are, like all of the rules in this Code, rules of reason.  The use of the term “require” in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge’s direction and control.

“Third degree of relationship” includes the following persons: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece.

CANON 2

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A judge shall perform the duties of judicial office impartially, competently, and diligently.

Rule 2.1 Giving Precedence to the Duties of Judicial Office

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The duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal and extrajudicial activities.

Comment

[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.

[2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system.

Rule 2.2 Impartiality and Fairness

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(A) A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

(B) A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.

Comment
[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.

[3] When applying and interpreting the law, a judge sometimes may make good-faith errors of fact or law. Errors of this kind do not violate this Rule.

[4] The growth in litigation involving self-represented litigants and the responsibility of courts to promote access to justice warrant reasonable flexibility by judges, consistent with the law and court rules, to ensure that all litigants are fairly heard.

Rule 2.3 Bias, Prejudice, and Harassment

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(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Comment

[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.

[2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.

[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.

[4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.

Rule 2.4 External Influences on Judicial Conduct

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(A) A judge shall not be swayed by public clamor or fear of criticism.

(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.

(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.

Comment

[1] An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge’s friends or family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.

(A) A judge shall perform judicial and administrative duties, competently and diligently.

(B) A judge shall cooperate with other judges and court officials in the administration of court business.

Comment

[1] Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge’s responsibilities of judicial office.

[2] Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court officials, litigants, and their lawyers cooperate with the judge to that end.

[3] In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.

Rule 2.6 Ensuring the Right to Be Heard

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(A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.

(B) A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.

Comment

[1] The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed.

[2] The judge plays an important role in overseeing the settlement of disputes, but should be careful that efforts to further settlement do not undermine any party’s right to be heard according to law. The judge should keep in mind the effect that the judge’s participation in settlement discussions may have, not only on the judge’s own views of the case, but also on the perceptions of the lawyers and the parties if the case remains with the judge after settlement efforts are unsuccessful. Among the factors that a judge should consider when deciding upon an appropriate settlement practice for a case are (1) whether the parties have requested or voluntarily consented to a certain level of participation by the judge in settlement discussions, (2) whether the parties and their counsel are relatively sophisticated in legal matters, (3) whether the case will be tried by the judge or a jury, (4) whether the parties participate with their counsel in settlement discussions, (5) whether any parties are unrepresented by counsel, and (6) whether the matter is civil or criminal.

[3] Judges must be mindful of the effect settlement discussions can have, not only on their objectivity and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge’s best efforts, there may be instances when information obtained during settlement discussions could influence a judge’s decision making during trial, and, in such instances, the judge should consider whether disqualification may be appropriate. See Rule 2.11(A)(1).

[4] Court-ordered mediation is not considered coercion.

Rule 2.7 Responsibility to Decide

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A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.

Comment

[1] Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.

Rule 2.8 Decorum, Demeanor, and Communication with Jurors

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(A) A judge shall require order and decorum in proceedings before the court.

(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.

(C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.

Comment

[1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.

[2] Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case.

[3] A judge who is not otherwise prohibited by law from doing so may meet with jurors who choose to remain after trial but should be careful not to discuss the merits of the case.

Rule 2.9 Ex Parte Communications

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(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows:

         (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

    (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

    (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

                            (2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received.

(3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

(4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.

(5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so.

(B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control.

Comment

[1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.

[2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party’s lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given.

[3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule.

[4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

[5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter.

[6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

[7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge’s compliance with this Code. Such consultations are not subject to the restrictions of paragraph (A)(2).

Rule 2.10 Judicial Statements on Pending and Impending Cases

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(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.

(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

(C) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B).

(D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity.

(E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.

Comment

[1] This Rule’s restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary.

[2] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity. In cases in which the judge is a litigant in an official capacity, such as a writ of mandamus, the judge must not comment publicly.

[3] Depending upon the circumstances, the judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the judge’s conduct in a matter.

Rule 2.11 Disqualification

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(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;

(b) acting as a lawyer in the proceeding;

                                      (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

        (d) likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.

(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

(5) The judge:

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;

(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; or

(c) was a material witness concerning the matter.

(B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse or domestic partner and minor children residing in the judge’s household.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

Comment

[1] Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply. In many jurisdictions, the term “recusal” is used interchangeably with the term “disqualification.”

[2] A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.

[3] The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.

[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge’s impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c), the judge’s disqualification is required.

[5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

[6] “Economic interest,” as set forth in the Terminology section, means ownership of more than a de minimis legal or equitable interest. Except for situations in which a judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include:

(1) an interest in the individual holdings within a mutual or common investment fund;

(2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge’s spouse, domestic partner, parent, or child serves as a director, officer, advisor, or other participant;

(3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar proprietary interests; or

(4) an interest in the issuer of government securities held by the judge.

Rule 2.12 Supervisory Duties

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(A) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.

(B) A judge with supervisory authority for the performance of other judges shall take reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them.

Comment

[1] A judge is responsible for his or her own conduct and for the conduct of others, such as staff, when those persons are acting at the judge’s direction or control. A judge may not direct court personnel to engage in conduct on the judge’s behalf or as the judge’s representative when such conduct would violate the Code if undertaken by the judge.

[2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly.

Rule 2.13 Administrative Appointments

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(A) In making administrative appointments, a judge:

(1) shall exercise the power of appointment impartially and on the basis of merit; and

(2) shall avoid nepotism, favoritism, and unnecessary appointments.

(B) A judge shall not approve compensation of appointees beyond the fair value of services rendered.

Comment

[1] Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers, and guardians, and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by paragraph (A).

[2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge’s spouse or domestic partner, or the spouse or domestic partner of such relative.

Rule 2.14 Disability and Impairment

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A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.

Comment

[1] “Appropriate action” means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system. Depending upon the circumstances, appropriate action may include but is not limited to speaking directly to the impaired person, notifying an individual with supervisory responsibility over the impaired person, or making a referral to an assistance program.

[2] Taking or initiating corrective action by way of referral to an assistance program may satisfy a judge’s responsibility under this Rule. Assistance programs have many approaches for offering help to impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care professionals. Depending upon the gravity of the conduct that has come to the judge’s attention, however, the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body. See Rule 2.15.

Rule 2.15 Responding to Judicial and Lawyer Misconduct

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(A) A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.

(B) A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.

(C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.

(D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action.

Comment

[1] Taking action to address known misconduct is a judge’s obligation. Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate disciplinary authority the known misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct among one’s judicial colleagues or members of the legal profession undermines a judge’s responsibility to participate in efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to those offenses that an independent judiciary must vigorously endeavor to prevent.

[2] A judge who does not have actual knowledge that another judge or a lawyer may have committed misconduct, but receives information indicating a substantial likelihood of such misconduct, is required to take appropriate action under paragraphs (C) and (D). Appropriate action may include, but is not limited to, communicating directly with the judge who may have violated this Code, communicating with a supervising judge, or reporting the suspected violation to the appropriate authority or other agency or body. Similarly, actions to be taken in response to information indicating that a lawyer has committed a violation of the Rules of Professional Conduct may include but are not limited to communicating directly with the lawyer who may have committed the violation, or reporting the suspected violation to the appropriate authority or other agency or body.

Rule 2.16 Cooperation with Disciplinary Authorities

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(A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies.

(B) A judge shall not retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a judge or a lawyer.

Comment

[1] Cooperation with investigations and proceedings of judicial and lawyer discipline agencies, as required in paragraph (A), instills confidence in judges’ commitment to the integrity of the judicial system and the protection of the public.

CANON 3

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A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

Rule 3.1 Extrajudicial Activities in General

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(A) A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not:

    (1) participate in activities that will interfere with the proper performance of the judge’s judicial duties;

    (2) participate in activities that will lead to frequent disqualification of the judge;

    (3) participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality;

    (4) engage in conduct that would appear to a reasonable person to be coercive; or

    (5) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice.

Comment

[1] To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7.

[2] Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.

[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status. For the same reason, a judge’s extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6.

[4] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, depending upon the circumstances, a judge’s solicitation of contributions or memberships for an organization, even as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge.

(B) Avocational Activities.  A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code.

    (1) A judge who intends to enter into a teaching contract shall obtain written approval, in advance, from the chief justice of the supreme court.

    (2) A judge who is otherwise in compliance with the provisions of Canon 2 relating to the precedence of his or her judicial duties and the timely and competent disposition of the business of the court may, in any calendar year derive income from all such avocational activities not to exceed 15% of the judge’s salary.  For good cause shown and in extraordinary circumstances, exceptions to this limitation may be approved, by formal vote of the supreme court. Such approval shall be in writing and shall state the reasons for and terms of the exception.

Comment

[1] As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice.  To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law.  Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities.

[2] The 15% income limitation is consistent with Title VI of the Ethics Reform Act of 1989, 5 U.S.C. app. 4, sections 501-505, which limits the income that federal judges may receive from quasi-judicial activities.

[3] In this and other sections of Canon 3, the phrase “subject to the requirements of this Code” is used, notably in connection with a judge’s governmental, civic or charitable activities.  This phrase is included to remind judges that the use of permissive language in various sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.

Rule 3.2 Appearances before Governmental Bodies and Consultation with Government Officials

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A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except:

(A) in connection with matters concerning the law, the legal system, or the administration of justice;

(B) in connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties; or

(C) when the judge is acting pro se in a matter involving the judge’s legal or economic interests, or when the judge is acting in a fiduciary capacity.

Comment

[1] Judges possess special expertise in matters of law, the legal system, and the administration of justice, and may properly share that expertise with governmental bodies and executive or legislative branch officials.

[2] In appearing before governmental bodies or consulting with government officials, judges must be mindful that they remain subject to other provisions of this Code, such as Rule 1.3, prohibiting judges from using the prestige of office to advance their own or others’ interests, Rule 2.10, governing public comment on pending and impending matters, and Rule 3.1(C), prohibiting judges from engaging in extrajudicial activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.

[3] In general, it would be an unnecessary and unfair burden to prohibit judges from appearing before governmental bodies or consulting with government officials on matters that are likely to affect them as private citizens, such as zoning proposals affecting their real property. In engaging in such activities, however, judges must not refer to their judicial positions, and must otherwise exercise caution to avoid using the prestige of judicial office.

Rule 3.3 Testifying as a Character Witness

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A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.

Comment

[1] A judge who, without being subpoenaed, testifies as a character witness abuses the prestige of judicial office to advance the interests of another. See Rule 1.3. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.

[2] Testifying as to the qualifications of a judicial nominee at a confirmation hearing is not to be construed as a violation of this rule.

Rule 3.4 Appointments to Governmental Positions

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A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities.

Comment

[1] Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a  judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge’s time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.

[2] A judge may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a government position.

Rule 3.5 Use of Nonpublic Information

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A judge shall not intentionally disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s judicial duties.

Comment

[1] In the course of performing judicial duties, a judge may acquire information of commercial or other value that is unavailable to the public. The judge must not reveal or use such information for personal gain or for any purpose unrelated to his or her judicial duties.

[2] This rule is not intended, however, to affect a judge’s ability to act on information as necessary to protect the health or safety of the judge or a member of a judge’s family, court personnel, or other judicial officers if consistent with other provisions of this Code.

Rule 3.6 Affiliation with Discriminatory Organizations

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(A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.

(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.

Comment

[1] A judge’s public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge’s membership in an organization that practices invidious discrimination creates the perception that the judge’s impartiality is impaired.

[2] An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.

[3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.

[4] A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.

[5] This Rule does not apply to national or state military service.

Rule 3.7 Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities

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(A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities:

    (1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization’s or entity’s funds;

    (2) soliciting contributions for such an organization or entity, but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority;

    (3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice;

    (4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice;

    (5) making recommendations to such a public or private fund-granting organization or entity in connection with its programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and

    (6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity:

        (a) will be engaged in proceedings that would ordinarily come before the judge; or

        (b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

(B) A judge may encourage lawyers to provide pro bono publico legal services.

Comment

[1] The activities permitted by paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related, charitable, and other organizations.

[2] Even for law-related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely upon a judge’s independence, integrity, and impartiality.

[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph 4(A). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office.

[4] Identification of a judge’s position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge’s title or judicial office if comparable designations are used for other persons.

[5] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office. Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.

Rule 3.8 Appointments to Fiduciary Positions

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(A) A judge shall not accept appointment to serve in a fiduciary position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties.

(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction.

(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally.

(D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable, but in no event later than one year after becoming a judge.

Comment

[1] A judge should recognize that other restrictions imposed by this Code may conflict with a judge’s obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis.

Rule 3.9 Service as Arbitrator or Mediator

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(A)  Except as provided in subsection B below, a judge shall not provide services as a private arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.

(B) A judge who is in senior active service pursuant to RSA 493-A:1 or who has reached age 70 but continues to sit as a judicial referee pursuant to RSA 493-A:1-a may serve as a private mediator or arbitrator, and may be privately compensated for such services in accordance with this subsection. To the extent the senior judge or judicial referee provides mediation or arbitration services pursuant to Superior Court Rules 30, 32, 33, or 34, he or she shall comply with the certification requirements of those rules.

    (1)  A senior judge or judicial referee may be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law.  However, such senior judge or judicial referee shall not associate with a law firm, or advertise or solicit business in a manner that identifies his or her position as a senior active judge or judicial referee or prior service as a judge, but he or she may include the fact of prior service as a judge, along with other background and experience, in a resume or curriculum vitae.

    (2)  A senior judge or judicial referee who serves as a mediator or arbitrator shall disclose to the parties to the mediation or arbitration whether he or she has presided over a case involving any party to the mediation or arbitration within the past three years. A senior judge or judicial referee shall not solicit service as a mediator or arbitrator is any case in which he or she is or has presided or in which he or she has ruled upon any issues other than routine scheduling matters, but he or she may serve as a mediator or arbitrator in such a case if requested to do so by all parties to the case; provided, however, that once a senior judge or judicial referee serves as a mediator or arbitrator in such a case, he or she shall not thereafter preside over any aspect of the case or rule upon any issue in the case in a judicial capacity.

    (3)  A senior judge or judicial referee shall disclose if he or she is being utilized or has been utilized as a mediator or arbitrator by any party, attorney or law firm involved in the case pending before the senior judge or judicial referee.  Absent express consent from all parties, a senior judge or judicial referee is prohibited from presiding over any case involving any party, attorney or law firm that is utilizing or has utilized the senior judge or judicial referee as a mediator within the previous three years.  A senior judge or judicial referee also shall disclose any negotiations or agreements for the provision of mediation or arbitration services between the senior judge of judicial referee and any of the parties or counsel to the case.

(C) The provisions of subsections (B)(2) and (B)(3) above do not apply when a judge, senior judge or judicial referee is performing mediation or arbitration services for the judicial branch and without private compensation pursuant to Superior Court Rules 30, 32, 33, or 34.

Comment

[1] This rule does not prohibit a judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties.

Rule 3.10 Practice of Law

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A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family, but is prohibited from serving as the family member’s lawyer in any forum.

Comment

[1] A judge may act pro se in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with governmental bodies. A judge must not use the prestige of office to advance the judge’s personal or family interests. See Rule 1.3.

Rule 3.11 Financial, Business, or Remunerative Activities

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(A) A judge may hold and manage investments of the judge and members of the judge’s family.

(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in:

    (1) a business closely held by the judge or members of the judge’s family; or

    (2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family.

(C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will:

    (1)  interfere with the proper performance of judicial duties;

    (2) lead to frequent disqualification of the judge;

    (3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or

    (4) result in violation of other provisions of this Code.

Comment

[1] Judges are generally permitted to engage in financial activities, including managing real estate and other investments for themselves or for members of their families. Participation in these activities, like participation in other extrajudicial activities, is subject to the requirements of this Code. For example, it would be improper for a judge to spend so much time on business activities that it interferes with the performance of judicial duties. See Rule 2.1. Similarly, it would be improper for a judge to use his or her official title or appear in judicial robes in business advertising, or to conduct his or her business or financial affairs in such a way that disqualification is frequently required. See Rules 1.3 and 2.11.

[2] As soon as practicable without serious financial detriment, the judge must divest himself or herself of investments and other financial interests that might require frequent disqualification or otherwise violate this Rule.

Rule 3.12 Compensation for Extrajudicial Activities

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Subject to Rule 3.1(B), a judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law unless such acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.

Comment

[1] Subject to Rule 3.1(B), a judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided the compensation is reasonable and commensurate with the task performed. The judge should be mindful, however, that judicial duties must take precedence over other activities. See Rule 2.1.

[2] Compensation derived from extrajudicial activities may be subject to public reporting. See Rule 3.15.

Rule 3.13 Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value

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(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.

(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance:

    (1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards;

    (2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons, including lawyers, whose appearance or interest in a proceeding pending or impending before the judge would in any event require disqualification of the judge under Rule 2.11;

    (3) ordinary social hospitality;

    (4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges;

    (5) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges;

    (6) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated persons who are not judges, based upon the same terms and criteria;

    (7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or

    (8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner, or other family member of a judge residing in the judge’s household, but that incidentally benefit the judge.

(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15:

   (1) gifts incident to a public testimonial;

   (2) invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge:

        (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or

        (b) an event associated with any of the judge’s educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge; and

   (3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge.

Comment

[1] Whenever a judge accepts a gift or other thing of value without paying fair market value, there is a risk that the benefit might be viewed as intended to influence the judge’s decision in a case. Rule 3.13 imposes restrictions upon the acceptance of such benefits, according to the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the acceptance would appear to undermine the judge’s independence, integrity, or impartiality is low, and explicitly provides that such items need not be publicly reported. As the value of the benefit or the likelihood that the source of the benefit will appear before the judge increases, the judge is either prohibited under paragraph (A) from accepting the gift, or required under paragraph (C) to publicly report it.

[2] Gift-giving between friends and relatives is a common occurrence, and ordinarily does not create an appearance of impropriety or cause reasonable persons to believe that the judge’s independence, integrity, or impartiality has been compromised. In addition, when the appearance of friends or relatives in a case would require the judge’s disqualification under Rule 2.11, there would be no opportunity for a gift to influence the judge’s decision making. Paragraph (B)(2) places no restrictions upon the ability of a judge to accept gifts or other things of value from friends or relatives under these circumstances, and does not require public reporting.

[3] Businesses and financial institutions frequently make available special pricing, discounts, and other benefits, either in connection with a temporary promotion or for preferred customers, based upon longevity of the relationship, volume of business transacted, and other factors. A judge may freely accept such benefits if they are available to the general public, or if the judge qualifies for the special price or discount according to the same criteria as are applied to persons who are not judges. As an example, loans provided at generally prevailing interest rates are not gifts, but a judge could not accept a loan from a financial institution at below-market interest rates unless the same rate was being made available to the general public for a certain period of time or only to borrowers with specified qualifications that the judge also possesses.

[4] Rule 3.13 applies only to acceptance of gifts or other things of value by a judge. Nonetheless, if a gift or other benefit is given to the judge’s spouse, domestic partner, or member of the judge’s family residing in the judge’s household, it may be viewed as an attempt to evade Rule 3.13 and influence the judge indirectly. Where the gift or benefit is being made primarily to such other persons, and the judge is merely an incidental beneficiary, this concern is reduced.  A judge should, however, remind family and household members of the restrictions imposed upon judges, and urge them to take these restrictions into account when making decisions about accepting such gifts or benefits.

Rule 3.14 Reimbursement of Expenses and Waivers of Fees or Charges

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(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law, a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the judge’s employing entity, if the expenses or charges are associated with the judge’s participation in extrajudicial activities permitted by this Code.

(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the judge’s spouse, domestic partner, or guest.

(C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or charges on behalf of the judge or the judge’s spouse, domestic partner, or guest shall publicly report such acceptance as required by Rule 3.15.

Comment

[1] Educational, civic, religious, fraternal, and charitable organizations often sponsor meetings, seminars, symposia, dinners, awards ceremonies, and similar events. Judges are encouraged to attend educational programs, as both teachers and participants, in law-related and academic disciplines, in furtherance of their duty to remain competent in the law. Participation in a variety of other extrajudicial activity is also permitted and encouraged by this Code.

[2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for necessary travel, food, lodging, or other incidental expenses. A judge’s decision whether to accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection with these or other extrajudicial activities must be based upon an assessment of all the circumstances. The judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment about whether acceptance would be consistent with the requirements of this Code.

[3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. The factors that a judge should consider when deciding whether to accept reimbursement or a fee waiver for attendance at a particular activity include:

(a) whether the sponsor is an accredited educational institution or bar association rather than a trade association or a for-profit entity;

(b) whether the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content;

(c) whether the content is related or unrelated to the subject matter of litigation pending or impending before the judge, or to matters that are likely to come before the judge;

(d) whether the activity is primarily educational rather than recreational, and whether the costs of the event are reasonable and comparable to those associated with similar events sponsored by the judiciary, bar associations, or similar groups;

(e) whether information concerning the activity and its funding sources is available upon inquiry;

(f) whether the sponsor or source of funding is generally associated with particular parties or interests currently appearing or likely to appear in the judge’s court, thus possibly requiring disqualification of the judge under Rule 2.11;

(g) whether differing viewpoints are presented; and

(h) whether a broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited, and whether the program is designed specifically for judges.

Rule 3.15 Reporting Requirements

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(A)  For each calendar year up to and including calendar year 2006, a judge shall report on or before April 15 of each year, with respect to the preceding calendar year, whether or not the judge has received any compensation other than judicial salary, and, if so, the nature of the activity for which the compensation was received, the name of the payor and the amount of the compensation so received.  The report shall be filed as a public document in the office of the clerk of the New Hampshire Supreme Court.

(B)  For calendar year 2007, and each calendar year thereafter, a judge shall file a fully-completed New Hampshire Judicial Branch Financial Disclosure Statement on or before April 15 of each year, with respect to the preceding calendar year. The New Hampshire Judicial Branch Financial Disclosure Statement shall be filed as a public document in the office of the clerk of the New Hampshire Supreme Court.  The form of the New Hampshire Judicial Branch Financial Disclosure Statement shall be approved, by order, by the New Hampshire Supreme Court, and shall require at a minimum that a judge report whether or not the judge has received any compensation other than judicial salary, and, if so, the nature of the activity for which the compensation was received.  Blank forms may be obtained by request from the clerk of the New Hampshire Supreme Court, and shall also be available on the New Hampshire Judicial Branch website.

Comment

[1]  Disclosure of a judge’s income, debts, investments or other assets is required only to the extent provided in this Canon and in Rule 2.11, or as otherwise required by law.

CANON 4

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A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY.

Rule 4.1 Political Conduct in General

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(A) A judge shall not:

(1)  act as a leader or hold any office in a political organization;

(2)  make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(3) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions.

(B)  A judge shall resign from judicial office upon becoming a candidate either in a party primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention or a moderator of any governmental unit, if the judge is otherwise permitted by law to do so.

(C)  A judge shall not engage in any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.

Rule 4.2 Judicial Candidates

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(A)  A candidate for judicial office:

(1)  shall maintain the dignity appropriate for judicial office and act in a  manner consistent with the impartiality, integrity and independence of the judiciary, and shall encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to candidate; and

(2)  shall not:

(a)  with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office; or

(b)  knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or any other candidate or potential candidate.

Comment

[1] Section 4.2(A) prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court.  As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views.  See also Section 2.10, the general rule on public comment by judges.  Section 4.2(A)(2) does not prohibit a candidate from making pledges or promises respecting improvements in court administration.  Nor does this Section prohibit an incumbent judge from making private statements to other judges or court personnel in  the performance of judicial duties.  This Section applies to any statement made in the process of securing judicial office, such as statements to commissions charged with recommending judicial selection and executive officials and bodies charged with nominating or confirming appointment.  See also Rule 8.2 of the NH Rules of Professional Conduct.

[2] This section is not intended to prohibit a judge from attending a candidates’ night to which all candidates for a particular office have been invited.

Rule 38-A. ADVISORY COMMITTEE ON JUDICIAL ETHICS.

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(1) Authority and purpose. Pursuant to the supreme court’s constitutional and statutory authority, there is hereby established an advisory committee on judicial ethics. The purpose of the committee is to provide guidance to judges about compliance with rules of court and statutes relating to the ethical and professional conduct of judges.

(2) Membership of Committee; Terms; Chair; Quorum. The committee shall consist of five persons, appointed by the supreme court, who are qualified to render advice on judicial ethics, including at least three judges or retired judges. No justice currently serving on the supreme court shall be a member of the committee. The members of the committee shall serve without compensation but shall be reimbursed for necessary expenses incurred in the performance of their official duties.

When the committee is first appointed, two members shall be appointed to three-year terms, two members shall be appointed to two-year terms, and one member shall be appointed to a one-year term. On the expiration of the term of office of a member, a successor shall be appointed to a term of three years. Members may be reappointed to the committee, but no member shall be appointed to more than two successive full terms.

The committee shall select one of its members to serve as chair of the committee, and another to serve as vice-chair. A quorum shall consist of three members. The court shall designate a person to serve as the secretary and administrative support to the committee.

(3) Duties and Jurisdiction.

    (a) The committee shall render advisory opinions with respect to the interpretation of rules of court and statutes relating to the ethical and professional conduct of judges. Any person whose conduct is subject to the Code of Judicial Conduct may request an advisory opinion about the propriety of his or her proposed conduct.

    (b) The committee shall not render opinions regarding the proposed conduct of someone other than the person submitting the request, except that the committee may respond to a request from a judge about a person subject to the judge’s direction and control or over whom the judge has supervisory responsibilities, or from a judge about the judge’s relatives.

    (c) The committee shall only issue opinions that address contemplated or proposed future conduct and shall not issue opinions addressing past or current conduct unless the past or current conduct relates to future conduct or is continuing. The committee shall not issue an opinion in response to a request when the facts are known to be the subject of past or pending litigation or disciplinary investigation or proceedings.

    (d) The committee may, in its discretion, decline to respond to a request for opinion if it determines that a response would be inappropriate or would not aid the judge, benefit the judiciary as a whole, or serve the public interest.

    (e) The committee shall not issue an advisory opinion that interprets any statute, rule or regulation that does not relate to judicial ethics.

(4) Procedure and Opinions.

    (a) By the concurrence of a majority of its members and subject to the approval of the court, the committee may adopt rules of procedure relating to requests for advisory opinions and the issuance of opinions.

    (b) The committee may render written opinions only by an affirmative vote of at least three members.

    (c) All opinions shall be advisory only, and no opinion shall be binding on the judicial conduct committee in the exercise of its judicial discipline responsibilities. However, the judicial conduct committee and the supreme court, may, in their discretion, consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Code of Judicial Conduct, provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same.

    (d) The committee may publish its opinions but the name of the judge requesting the opinion and any other identifying information shall not be included in a published opinion unless the judge consents to such inclusion.

(5) Report. In January of each year, the committee shall submit to the court a report of its activities together with any recommendations.

Rule 39. Committee on Judicial Conduct.

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(1) Authority

Pursuant to the supreme court’s constitutional and statutory authority, and to provide for the orderly and efficient administration of the Code of Judicial Conduct, Rule 38 of the Rules of the Supreme Court, there is hereby established a committee on judicial conduct.

(2) Appointment of Committee

     (a) The committee on judicial conduct shall consist of eleven members and eleven alternate members.  Alternate members may participate in committee proceedings only as specifically provided in this rule.

          (1) One member and one alternate member who shall each be an active or retired justice of the superior court; and two members and two alternate members who shall be active or retired circuit court judges, all of whom shall be appointed by the supreme court.

          (2) One member and one alternate member who shall each be an active or retired clerk of court and who shall be appointed by the supreme court.

          (3) One member and one alternate member who shall each be a New Hampshire Bar Association member and who shall be appointed by the president of the New Hampshire Bar Association.

          (4) One public member and one alternate public member, who shall not be a judge, attorney, clerk of court, or elected or appointed public official, shall be appointed by the president of the New Hampshire Bar Association.

          (5)  One public member and one alternate public member, who shall not be a judge, attorney, clerk of court, or elected or appointed public official, shall be appointed by the supreme court.

          (6)  Two public members and two alternate public members, who shall not be judges, attorneys, clerks of court, or elected or appointed public officials, shall be appointed by the Governor.

          (7)  One public member and one alternate public member, who shall not be a judge, clerk of court, or attorney, shall be appointed by the president of the Senate.

          (8)  One public member and one alternate public member, who shall not be a judge, clerk of court, or attorney, shall be appointed by the speaker of the House.

   (b) Committee Address

    The committee address shall be determined by the committee. 

(3) Terms of Office

    (a) Each member serving on July 1, 2005, shall continue to serve as a member until his or her successor is appointed.  The initial term of members appointed after July 1, 2005, which may include appointments of members who were serving on July 1, 2005, shall be for a three-year term.

       The initial term of all alternate members appointed shall be for three years.

    (b) All terms after the initial appointments shall be for three years.

    (c) A member may serve a maximum of three successive terms, all of which commenced after July 1, 2005.  After the expiration of the member’s third successive term, the member may not again be appointed to the committee, either as a member or as an alternate member, until three years after the date of the member’s last day as a member of the committee.  An alternate member may serve an unlimited number of terms as an alternate.

    (d)  If any appointing authority other than the supreme court fails to appoint a member or an alternate member to fill a vacancy for a period of three months following the date upon which notice is sent to the appointing authority informing the appointing authority of the vacancy, the supreme court may appoint a member or alternate member to fill the vacancy.  The person appointed shall have the same qualifications as would have been required had the appointing authority filled the vacancy. 

(4) Vacancy and Disqualification

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

         (1) when the term of a member or alternate member expires; provided, however, that such member or alternate member shall continue to serve until his or her successor is appointed; or

         (2) when a judge who is a member or alternate 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 in good standing in all jurisdictions where admitted to practice law, or is appointed to a judicial office or as a clerk of court; or

        (4) when a public member or alternate public member becomes a lawyer, clerk of court, or a judge; or

        (5)  when a public member or alternate public member appointed by the Governor or the President of the New Hampshire Bar Association becomes an elected or appointed public official; or

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

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

        (8)  when a member or alternate member is removed from office by the committee as provided in paragraph 10; or

        (9)  when a member or alternate member ceases to hold office by submitting his or her resignation to the committee or otherwise.

    (b) A vacancy shall be filled by selection of a successor with the same qualifications as those required for the selection of his or her predecessor in office. A member or alternate member selected to fill a vacancy shall hold office for the unexpired term of his or her predecessor.

    (c) No member shall participate in any proceedings before the committee involving his or her own conduct or the conduct of any other member.  No alternate member shall participate in any proceedings before the committee involving his or her own conduct.

    (d) No member or alternate member shall participate in any proceeding in which his or her impartiality might reasonably be questioned.

    (e) Whenever a member is disqualified from participating in a particular proceeding, or is unable to participate by reason of prolonged absence or physical or mental incapacity, an alternate member may be assigned by the chair to participate in any such proceeding or for the period of any such disability, provided that said alternate member shall have been appointed by the same appointing authority as the member who is being replaced, and shall have the same qualifications as those required for the selection of the member who is being replaced.  If, however, due to disqualification or incapacity, there is no alternate member who was appointed by the same appointing authority with the same qualifications who is able to participate, then the chair may assign any other alternate member to participate in the proceeding or for the period of the member’s disability.

(5) Expenses of the Committee and Staff

    (a) The committee’s budget shall be a separate PAU within the judicial branch budget.  The committee shall prepare its own budget request. The budget request and such additional information as may be requested shall be submitted to the director of the administrative office of the courts for inclusion in the judicial branch budget request in the amounts requested.  Expenses approved for payment by the committee shall be paid by the administrative office of the courts from funds appropriated for the judicial conduct committee.

    (b) Members and alternate members shall serve without compensation for their services, but shall be reimbursed for necessary expenses incurred in the performance of their duties, subject to the availability of funds.

    (c) The committee shall appoint an executive secretary and such other persons as may be necessary to assist the committee in its work. The executive secretary shall perform the duties and responsibilities prescribed by this rule and Supreme Court Rule 40, and such other duties and responsibilities as the committee may determine from time to time. He or she shall notify the appropriate appointing authority whenever a member’s or alternate member’s term expires or a vacancy in the office of the committee otherwise occurs.  He or she shall receive all grievances, information, and inquiries, and process the same under the direction and supervision of the committee. The executive secretary shall maintain the committee’s records, maintain statistics concerning the operation of the committee, and prepare an annual report of the committee’s activities for presentation to the committee. He or she shall coordinate investigations ordered by the committee, and ensure that they are conducted discreetly and with dispatch. Subject to the direction and control of the committee, and subject to the availability of appropriated funds, the executive secretary shall have charge of the disbursement of expense funds. Generally, the executive secretary shall supervise the work of other personnel employed by the committee, direct the activities of the committee’s office, and endeavor to keep members of the committee properly informed about its business.

    (d) The committee may employ counsel. The duties of counsel shall be determined by the committee.

    (e) The committee may employ such private investigators, experts and other personnel as the committee in its discretion deems necessary for the efficient discharge of its duties.

    (f) The committee shall select its own office space, which should not be in the facilities of any branch of government.

      (6) Quorum and Chairperson

    (a) A quorum for the transaction of business by the committee shall be six members; provided, however, that no formal charges shall be instituted or unfavorable action taken against a judge except upon the affirmative vote of at least seven members. Except as otherwise provided in this rule or in Supreme Court Rule 40, no act of the committee shall be valid unless concurred in by six of its members.

    Members of the committee may participate in a meeting of the committee by means of a conference telephone or similar communications equipment, provided all persons participating in the meeting can hear each other. Participation by these means shall constitute presence in person at a meeting. These procedures shall not be used for hearings.

    (b) If a quorum of the committee cannot be obtained by reason of the disqualification or absence of members thereof, the chair or the executive secretary may request that one or more alternate members act as a temporary replacement or replacements. Any such temporary replacement shall have been appointed by the same appointing authority and have the same qualifications as the member replaced.

    (c) The committee shall designate the chair and vice-chair of the committee. The vice-chair shall act as chair in the absence of the chair. In the absence of both the chair and the vice-chair, the members present may select one among them to act as temporary chair.

(7) Meetings of the Committee

    (a) Meetings of the committee shall be held at the call of the chair, the vice-chair, or the executive secretary or at the written request of three members of the committee.

    (b) The committee may, by vote, establish regular or stated meeting dates.

    (c) The business of the committee may be transacted by telephone, exchange of correspondence, or other informal poll of members, unless one or more members object; provided, however, that no formal charges shall be instituted or unfavorable action taken against a judge except upon deliberation and the affirmative vote of at least seven members who are physically present at a meeting of the committee.

(8) Annual Report

   On or before March 1 of each year, the committee shall prepare a report summarizing its activities during the preceding calendar year. Upon approval of the report by the committee, a copy of the report shall be filed with the Governor, the president of the Senate, the speaker of the House, the chief justice of the supreme court, the chairpersons of the House and Senate Judiciary Committees, and shall be made available to the public.

(9) Powers and Duties of the Committee

The committee shall have the power and the duty:

    (a) to consider and investigate the conduct of any judge, as that term is defined in Rule 40(2), within the jurisdiction of this court and may initiate an inquiry on its own motion in accordance with Rule 40(6) or undertake an investigation upon grievance or complaint filed by any person;

    (b) to retain counsel as may from time to time be required to properly perform the functions prescribed by the committee, subject to the availability of appropriated funds;

    (c) to retain such investigative and other personnel as the committee shall deem necessary, and to select its own office space, which should not be in the facilities of any branch of government, both subject to the availability of appropriated funds;

    (d) to dismiss a grievance or complaint when the grievant lacks standing, the committee lacks jurisdiction over the grievance or complaint, the grievance or complaint is insufficient or there is insufficient cause to proceed, or the period of limitations set forth in Rule 40(4)(c) has expired;

    (e) to dispose of a grievance or complaint by informal resolution or adjustment prior to the filing of formal charges or after a hearing on formal charges;

    (f) to prepare and file a statement of formal charges when appropriate;

    (g) to hold a public hearing on a statement of formal charges, during which hearing counsel shall have the burden of establishing by clear and convincing evidence a violation of the Code of Judicial Conduct;

    (h) to institute disciplinary proceedings in the supreme court when appropriate;

    (i) to educate the public on the general functions and procedures of the Committee.

(10) Attendance at Meetings; Removal of Members

   (a) Committee members shall be expected to attend all meetings of the committee. The chair shall be authorized to excuse the attendance of committee members from any meeting for good cause. The chair is authorized to discuss with members whether continued service on the committee is justified when meetings are frequently missed.

   (b) The chair, with the concurrence of a majority of the committee, shall be authorized to remove a member or alternate member for cause, including unexcused or frequent absences or serious violations of the rules governing the committee. Prior to any vote by the committee on removal, the chair shall provide the member or alternate member with a written statement of the reasons for which his or her removal is sought. The member or alternate member shall have the right to file a written response within ten days, copies of which shall be provided to all other members of the committee by the executive secretary. The member or alternate member shall have the right to attend the meeting at which removal is sought, and to speak prior to the committee’s vote. The committee may hold such further proceedings as it deems necessary in its sole discretion prior to voting on removal.

Rule 39-A. Commission on Judicial Conduct. [Repealed.]

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[Repealed] .

Rule 40. Procedural Rules of Committee on Judicial Conduct.

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  (1) Applicability.

All proceedings of the committee on judicial conduct, created by Supreme Court Rule 39, shall be governed by these rules.

(2) Definitions.

As used herein, the following terms shall have the following meanings:

Answer – The response filed by a judge to a complaint or statement of formal charges.

Caution – Non-disciplinary action taken by the committee when it is believed that the judge acted in a manner which involved behavior requiring attention although not constituting clear violation of the Code of Judicial Conduct warranting disciplinary action.  A caution may include recommendations concerning prudent future conduct, and may be issued at any stage of the proceedings with or without the consent of the judge.  After a caution is issued, the judge shall have the opportunity to submit a reply within 30 days from the date of notification.  Any caution or reply shall be available for public inspection consistent with Rule (16).

Code of Judicial Conduct – The Code of Judicial Conduct, as adopted by the New Hampshire Supreme Court in Rule 38, as the same may from time to time be amended.

Committee Counsel – Counsel engaged by the committee to assist it prior to the filing of formal charges.

Committee – The New Hampshire Supreme Court Committee on Judicial Conduct.

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

Complaint – A report of alleged misconduct that is docketed by the committee after being reviewed and determined to be against a judge and to satisfy the requirements for docketing as a complaint as set forth in section (5)(c), or a complaint which is drafted and docketed by the committee in accordance with section (7)(b) after a committee-initiated inquiry.

Court – The New Hampshire Supreme Court.

Discipline – Any disciplinary action authorized by this rule in a matter in which misconduct in violation of the Code of Judicial Conduct is found to warrant disciplinary action.

Formal Discipline – Discipline imposed pursuant to a Statement of Formal Charges and after a hearing and a finding of misconduct, where the committee determines that the violation is of a serious nature warranting formal disciplinary action by the Court, including a suspension.

Hearing – The proceedings which follow a statement of formal charges.

Hearing counsel – Counsel engaged by the committee to prosecute formal charges before the committee or disciplinary proceedings in this court. A lawyer who has served as committee counsel in connection with a matter may, in appropriate circumstances and in the committee’s discretion, be engaged to serve as hearing counsel. Hearing counsel, after being appointed as such, shall have no ex parte communications with the committee.

Inquiry – A preliminary investigation begun by the committee on its own initiative to determine whether its findings should be docketed as a complaint.

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

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

Judge – This term includes the following members of the State of New Hampshire Judicial Branch: (1) a full-time or part-time judge of any court or division; (2) a full-time or part-time marital master; (3) a referee or other master; and (4), when performing an adjudicatory function, a clerk of court or deputy clerk, including a register of probate or deputy register, and any person performing the duties of a clerk or register on an interim basis.  Not everyone who is a “judge” as defined herein is bound by every canon of the Code of Judicial Conduct — the Code of Judicial Conduct applies to a judge to the extent provided in Supreme Court Rule 38.

Misconduct – Conduct on the part of a judge that is contrary to the Code of Judicial Conduct.

Proceeding – Each step taken or which may be taken under these rules with respect to a report of alleged misconduct filed with the committee alleging misconduct of a judge, or with respect to an inquiry concerning the conduct of a judge which the committee has initiated on its own motion.

Report of Alleged Misconduct – A written allegation of misconduct against a judge, which is filed with the committee.

Reporter – A person who communicates a report of alleged misconduct to the committee.

Reprimand – An official written warning or admonition imposed after a finding of misconduct.

Resolution without formal discipline – Discipline imposed by the committee when it determines that the judge has violated the Code of Judicial Conduct but that the violation is not of a sufficiently serious nature to warrant the imposition of formal discipline by the court.  Sanctions may include issuance of a reprimand, requiring corrective action, directing professional counseling or assistance, imposing conditions on the judge’s conduct, or other similar action.  It is issued with the consent of the judge or without consent after a hearing.  The consent of the judge to resolution without formal discipline shall constitute a waiver of the judge’s right to a hearing.

Rule – The provisions of Supreme Court Rule 40.

Statement of Formal Charges – A formal pleading served under section (9) of this rule by the committee.

Suspension – The temporary prohibition of a judge from exercising judicial authority for the period of time specified by the court. A suspended judge shall have the right to resume the exercise of judicial authority, after the expiration of the suspension period, upon compliance with all of the terms and conditions set forth in the suspension order promulgated by the court. As a term of suspension, the court may order that the judge’s salary be suspended.

(3) Confidentiality of Proceedings.

            (a) As provided in this section, all proceedings and all information, communications, materials, papers, files, and transcripts, written or oral, received or developed by the committee in the course of its work, shall be confidential. No member of the committee or its staff and no employee of the committee shall disclose such proceedings, information, communications, materials, papers, files, or transcripts, except in the course of official duty and as otherwise authorized in this section.

    (b)  The Reporter and Judge shall keep confidential the fact that a report of alleged judicial misconduct has been filed with the committee, including any action taken by the committee, until either the report is dismissed, a statement of formal charges is prepared and filed as described in section 9(a) of this rule, or the committee has disposed of the report by taking appropriate remedial action.  Nothing in these rules, however, shall prohibit the Reporter and Judge from disclosing, in an underlying court case, such information about these proceedings as justice requires or to comply with the Code of Judicial Conduct, or prohibit a Judge from disclosing to third parties, such information as is necessary in the preparation of any required responses to the committee during these proceedings.

    (c) Report of Alleged Misconduct not against a Judge or not Satisfying Requirements for a Complaint.

        (1) In accordance with section (5)(d), a report involving a person who is not subject to the Code of Judicial Conduct shall be dismissed and returned to the reporter with a letter explaining the reason for the dismissal. The person who is the subject of the report shall not be notified of it. No file on the report will be maintained; however, the committee shall retain a copy of the letter to the reporter returning the report, which shall be available for public inspection in accordance with section (16)(a).

        (2) In accordance with section (5)(d), a report that fails to comply with the requirements for docketing as a complaint shall be dismissed. All records and materials relating to such a report shall be available for public inspection (other than work product, internal memoranda, and deliberations) in accordance with section (16)(b) after correspondence is sent to the judge who is the subject of the report and that judge has the opportunity to provide a reply to be filed in the public record in accordance with section (5)(d)(2). The judge’s reply shall be filed in the public record.

    (d) Report of Alleged Misconduct Docketed As A Complaint. All records and proceedings relating to a report of alleged misconduct which is docketed by the committee as a complaint after it has been determined by the committee that the report is against a judge and satisfies the requirements for docketing as a complaint shall be available for public inspection (other than work product, internal memoranda, and deliberations) upon the earliest of the following:

        (1) Upon preparation and filing of a statement of formal charges, the committee’s file (other than work product, internal memoranda, and deliberations), the hearing, and the committee’s disposition shall be public. The committee’s deliberations shall be confidential.

        (2) If a matter against a judge is resolved without formal discipline, the committee shall inform the reporter of such disposition, and the committee’s file (other than work product, internal memoranda, and deliberations), including the committee’s disposition, shall be public. If the judge shall thereby have received three or more dispositions that are resolved without formal discipline during the preceding five years, the following also shall be, after notice to the judge, available to the public: the prior complaints or notices of inquiry, the judge’s responses, and the committee’s findings and dispositions in all of the prior proceedings.

        (3) If the committee, at any stage of a proceeding, dismisses a complaint after it has been docketed or dismisses formal charges, the committee shall inform the reporter of such disposition, and the committee’s file (other than work product, internal memoranda, and deliberations) including the committee’s disposition, shall be public. If the judge has not previously been notified of the complaint, the committee’s file shall be made available for public inspection after correspondence is sent to the judge who is the subject of the complaint and that judge has the opportunity to provide a reply to be filed in the public record. In addition, the committee may, at the request or with the consent of the judge concerned, issue a short explanatory statement to the public.

    (e) If a judge is publicly charged, through independent sources, with involvement in a proceeding before the committee, or publicly charged with conduct likely to become the subject of such a proceeding, the committee may, at the request or with the consent of the judge involved, issue brief public statements as it deems appropriate in order to confirm or deny the pendency of the proceeding, to clarify the procedural aspects thereof, to explain the right of the judge to a fair hearing without prejudgment, and to state that the judge denies the allegations.

    (f) If the pendency of a proceeding before the committee is generally known to the public, through independent sources, and the subject matter thereof is of broad public interest or speculation, and public confidence in the administration of justice may be threatened because of lack of information concerning the status of the proceeding and the requirements of due process, the committee may, after consultation with the chief justice or the senior associate justice of the supreme court, issue brief statements as it may deem appropriate in order to confirm the existence of the investigation, to clarify the procedural aspects of the proceeding, to explain that the judge is entitled to due process, and to state that the judge denies the allegations.

    (g) Protective order. Any person or entity may request from the committee, or the committee may issue on its own initiative, a protective order prohibiting the disclosure of confidential, malicious, personal, or privileged information or materials 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 committee. The committee shall act upon the request within a reasonable time. Within 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.

    (h) This section shall not be construed to prohibit the committee from preparing and releasing to the public materials which are not related to any particular proceeding or situation. Such materials may include explanations of:

        (1) The jurisdiction of the committee and the limitations upon its powers and authority;

        (2) The procedure for filing reports of alleged misconduct; and

        (3) The internal procedures of the committee.

    In addition, the committee may release periodic statistical reports of its work.

    (i) Nothing herein shall prevent the committee from responding to unjustified public criticism of a judge who is not the subject of a proceeding, and the committee may so respond in appropriate cases.

    (j) Any violation of these provisions relating to the duty of confidentiality imposed by this rule may result in remedial action taken by the committee. Such action may consist of opening the file and the proceedings earlier than would have been the case under section (3); forfeiture of the provisions afforded to a Reporter under these rules with respect to notification and/or access to certain non-public information prior to the matter being made public; or such other remedial action as the committee may determine to be appropriate under the circumstances. Notwithstanding the provisions of this rule, the committee may disclose to an appropriate law enforcement authority any matter that comes before it, and shall, at the same time, inform the chief justice or the senior associate justice of the supreme court of the matter.  Notwithstanding the provisions of this rule, the committee may also disclose relevant information that is otherwise confidential to agencies or commissions authorized to investigate the qualifications of judicial candidates, provided that the judge who is the subject of the request has signed a waiver permitting the requesting agency or commission to obtain confidential information, and further provided that the agency or commission shall maintain the confidentiality of the information provided to the fullest extent possible consistent with the carrying out of its official duties unless it obtains a written waiver of confidentiality from the reporter or complainant and any other person whose confidentiality is protected by this rule.

Supreme Court Comment – 2000 amendment.

    One of the protections of the confidentiality provision is that a reporter is not liable for good faith statements contained in a report of alleged misconduct or made in the course of proceedings.
    Nothing in the rule of confidentiality prevents a reporter from disclosing publicly the conduct of a judge which he or she believes violates the Code of Judicial Conduct or is otherwise inappropriate. The immunity from civil liability does not apply to such disclosures. The rule does prohibit a reporter, however, from disclosing publicly the fact that a report of alleged misconduct against the judge about the conduct has been filed with the committee until a statement of formal charges is prepared and filed as described in section 9(a) of this rule, a report of alleged misconduct that had been docketed as a complaint is disposed of by resolution without formal discipline or is dismissed, or a report of alleged misconduct that has not been docketed as a complaint is disposed of by the committee.
    Once a report of alleged misconduct or complaint has been disposed of by the committee, a reporter may make a public disclosure concerning the filing of a report of alleged misconduct including the conduct complained of and the action of the committee, and the committee’s file, with the exception of work product, internal memoranda, and deliberations, shall be public.

(4) Report of Alleged Misconduct, Filing, Period of Limitation.

    (a) Any person may file a report of alleged misconduct with the committee to call to the attention of the committee conduct that the reporter believes constitutes misconduct by a judge that should be investigated by the committee.

    (b) A report of alleged misconduct shall be filed with the committee on judicial conduct by sending or delivering it to the committee.  A report of alleged misconduct shall be deemed filed when received by the committee.

Comment

    The committee’s address and telephone number are available on the Internet at the committee’s website, which can be found at:

   http://www.courts.state.nh.us/committees/judconductcomm/index.htm
    (c) Period of Limitation. No disciplinary proceedings shall be commenced unless a report of alleged misconduct is filed with the committee or a committee-generated complaint is docketed by the committee under section (7)(b) of this rule within two (2) years after the commission of the alleged misconduct, except when the acts or omissions that are the basis of the report were not discovered and could not reasonably have been discovered at the time of the acts or omissions, in which case, the report must be filed within two years of the time the reporter discovers, or in the exercise of reasonable diligence should have discovered, the acts or omissions complained of.

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. 

(5) Committee Procedure After Receipt of Report of alleged misconduct.

    (a) The executive secretary of the committee shall acknowledge receipt of a report of alleged misconduct in a timely fashion.

    (b) A copy of the report shall be sent to each member of the committee. The committee shall review each report of alleged misconduct at a meeting of the committee to determine whether the report is against a judge and whether the report meets the requirements for docketing as a complaint.

    (c) Subject to subsection (5)(c)(5) below, a report of alleged misconduct shall be docketed as a complaint if it is against a judge and it satisfies the following requirements:

        (1) It contains a concise statement of the facts which, if true, would establish a violation of the Code of Judicial Conduct.

            (a) A report of alleged misconduct that relates to a judge’s findings, rulings or decision, which, in effect, is a substitute for an appeal, will not be considered by the committee.

            (b) A report of alleged misconduct which is repetitive of a prior report or complaint, whether from the same or a different source, shall not be docketed as a complaint.

        (2) It was filed by a person who is or was directly affected by the conduct complained of or who was present when the conduct complained of occurred, and it contains a concise statement establishing these facts.

        (3) It is typed or in legible handwriting and signed by the reporter under oath or affirmation. The following language, or language that is substantially equivalent, must appear above the reporter’s signature: “I hereby swear or affirm under the pains and penalties of perjury that the information contained in this report of alleged misconduct is true to the best of my knowledge.”

        (4) It was filed with the committee within the period of limitation set forth in section (4)(c).

       (5)  Provided, however, that upon the vote of seven or more of its members, the committee may authorize a review of the court record to include the file and any recordings of proceedings to determine whether the court record supports the allegations in the report.  After review, the committee may dismiss the report of alleged misconduct if it finds that in light of the court record, there is no reasonable likelihood of a finding of judicial misconduct.  If the report of alleged misconduct is not dismissed, the committee shall direct that it be docketed as a complaint.

        (6)  At any stage of the proceedings, the committee may, for good cause, vote to hold in abeyance any matter pending before it for such period of time as it deems appropriate.

Under this provision, “good cause” may include as the committee deems appropriate providing an opportunity for the judge to undergo confidential evaluation under the supervision of the New Hampshire Lawyers Assistance Program (LAP) and to participate in professional treatment, counseling, after-care, and/or other assistance program recommended in the evaluation, subject to supervision by LAP and any other conditions established by the committee.

        The committee shall provide the Judge and Reporter timely notice of a decision to stay the proceedings, provided that, for good cause, the committee may vote to defer notification to the Judge or Reporter for such a period of time as it deems necessary.

    (d) A report of alleged misconduct that is filed against a person who is not a judge or that fails to satisfy the requirements for docketing as a complaint as set forth in section (5)(c) shall be dismissed. The committee shall notify the reporter in writing of the reason for the committee’s action. In addition, the committee shall take the following action:

        (1) If the committee determines that the person who is the subject of the report of alleged misconduct is not subject to the Code of Judicial Conduct, it shall return the report to the reporter with a letter explaining the reason for the dismissal. No file on the report of alleged misconduct will be maintained; however, the committee shall retain a copy of the letter to the reporter returning the report of alleged misconduct, which shall be available for public inspection in accordance with section (16)(a). The committee may bring such 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 report and shall advise the reporter of such referral.

        (2) If the committee determines that the report of alleged misconduct does not allege conduct that violates the Code of Judicial Conduct, that the reporter lacks standing, that the report was not filed within the period of limitation, or that in light of the court record there is no reasonable likelihood of a finding of judicial misconduct, the judge who is the subject of the report of alleged misconduct shall be provided with a copy of the report and the decision of the committee and will be given an opportunity to submit a reply within 30 days from the date of the notification or such further time as may be ordered by the committee. The reply shall be available for public inspection in accordance with section (16)(b).

    (e)  Provided, however, that upon the vote of seven or more of its members, when a report of alleged misconduct is dismissed, either where the alleged conduct, if true, does not constitute a violation of the Code of Judicial Conduct, or where after a review of the court record pursuant to section 5(c)(5) the committee determines that there is no reasonable likelihood of a finding of judicial misconduct, the committee may issue a caution if it believes that the judge acted in a manner which involved conduct requiring attention.  Consent of the judge shall not be required.  Prior to the issuance of any caution, a copy of the report of alleged misconduct shall be forwarded to the judge who shall be afforded the opportunity to provide a written response or to appear before the committee; whichever the judge elects.  Upon receipt of a written request from the reporter, a copy of any response shall be provided to the reporter.

    (f) Notification to Administrative Judge. Whenever the executive secretary provides a judge with a copy of a report of alleged misconduct against such judge which has been dismissed, the executive secretary shall at the same time send a copy of the report to the chief justice or administrative judge of the court in which such person serves. In such instances, the chief justice or administrative judge shall send a copy of the report to the presiding justice of the particular court in which such person serves.

(6) Inquiries Initiated by Committee.

The committee may initiate an inquiry concerning the conduct of any judge on its own motion, without a signed written report of alleged misconduct, upon any reasonable factual basis. No such inquiry shall be initiated by the committee except upon the affirmative vote of six or more members of the committee taken at a meeting thereof. Notice of the initiation of an inquiry by the committee on its own motion shall be given to the judge by the committee at such time as it deems appropriate. The committee may delay giving such notice to the judge to avoid possible compromise of the inquiry and any resulting investigation or for other good reason. Unless the committee votes to docket a complaint against a judge in accordance with section (7)(b), all records of a committee-initiated inquiry shall be confidential.

Provided, however, that upon the vote of seven or more of its members, where the inquiry does not disclose conduct in violation of the Code of Judicial Conduct, or there is no reasonable likelihood of a finding of judicial misconduct, but the committee determines that the judge acted in a manner which involved conduct requiring attention, the committee may issue a caution.  Consent of the judge shall not be required.  Prior to the issuance of any caution, the judge shall be apprised of the conduct requiring attention and shall be afforded the opportunity to provide a written response or to appear before the committee, whichever the judge elects.  Notwithstanding the above paragraph, any written caution issued herein, or response provided by the judge shall be public and subject to the same access as if issued after a report of alleged misconduct pursuant to paragraph 16(a).

(7) Docketing the Report of Alleged Misconduct As Complaint; Procedure Following Docketing of Complaint.

    (a) Docketing of Report of Alleged Misconduct as Complaint. If the committee determines that a report is against a judge and satisfies the requirements for docketing as a complaint as set forth in section (5)(c), it shall be docketed as a complaint.

    (b) Drafting and Docketing of Committee-generated Complaint. If, after undertaking and completing an inquiry on its own initiative in accordance with section (6), the committee determines that there is a reasonable basis to docket a complaint against a judge, a written complaint shall promptly be drafted and docketed.

    (c) Request for Answer to Complaint. After a complaint is docketed, the executive secretary shall promptly forward to the judge 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 and specified in such notice, the judge shall have 30 days from the date of such notice within which to file his or her answer with the committee. Such answer shall be filed with the executive secretary, who shall, upon receipt of a written request from the reporter, provide to the reporter a copy of the judge’s response. In addition to the required answer, the judge may submit to the committee such other matters as the judge may choose.

Whenever the executive secretary provides a judge with a copy of a complaint against such judge, the executive secretary shall at the same time send a copy of the complaint to the chief justice or administrative judge of the court system in which such person serves. In such instances, the chief justice or administrative judge shall send a copy of the complaint to the presiding justice of the particular court in which such person serves.

    (d) For good cause shown, the chair may extend the time within which the judge is required to file his or her answer.

(8) Preliminary Investigation.

    (a) The committee may undertake an investigation of any complaint properly before it upon the affirmative vote of seven or more members of the committee taken at a meeting thereof. Such investigation shall be conducted under the direction of the chair and in such manner as he or she may determine.

    (b) The judge shall be notified of the investigation and afforded a reasonable opportunity to present such relevant matters as he or she may choose.

    (c) In conducting an investigation, the chair may require that any statement or written information furnished to the committee or its employees be given under oath or affirmation subject to the penalties for perjury or false swearing in official proceedings pursuant to RSA chapter 641.

    (d) Persons contacted for information shall be informed of their obligation to maintain confidentiality as set forth in section (3).

    (e) Judges, clerks of court, court employees, members of the bar, and other officers of the court shall comply with the reasonable requests of the committee for assistance and cooperation in the conduct of any investigation by the committee.

    (f) During the course or upon completion of an investigation, or if the committee determines that no investigation is necessary, the committee may take the following actions:

         (1)  If the alleged conduct does not constitute a violation of the Code of Judicial Conduct, the complaint shall be dismissed.  If the committee believes that the judge acted in a manner which involved behavior requiring attention a caution may also be issued, with or without the consent of the judge.

         (2)  The matter may be resolved without formal discipline with the consent of the judge.  Such resolution may take the form of a written reprimand, the requirement of remedial action, or the imposition of conditions, or any combination thereof.  The committee may provide for monitoring or review by an administrative judge or other suitable person of any remedial action it may require or conditions it may impose in connection with a resolution without formal discipline.

         (3)  If the matter has not been dismissed or resolved without formal discipline, the committee shall determine whether there is probable cause to warrant formal proceedings.  If the committee does not determine that the investigation has disclosed probable cause to warrant formal proceedings, the committee shall dismiss the complaint or terminate the inquiry.  If the committee believes that the judge acted in a manner which involved behavior requiring attention a caution may also be issued, with or without the consent of the judge.

        (4)  The judge and reporter (if any) shall be notified of any action taken.  Prior to the issuance of any caution, the judge shall be afforded the opportunity to appear before the committee or file a supplemental response, whichever the judge elects.  Upon receipt of a written request from a reporter, a copy of any supplemental response shall be provided to the reporter.

        (5) (A) If the matter has not been dismissed or resolved without formal discipline and the committee determines that (1) there is probable cause to believe that misconduct, as specified in the complaint, occurred; and (2) that any misconduct was the result of substance misuse or mental health disorder; and (3) that the conduct is not so serious in nature as to warrant formal discipline by the supreme court, the committee and the judge may agree that the judge undergo confidential evaluation under the supervision of LAP. Should the evaluation reveal the existence of a condition for which treatment is appropriate, the committee may thereafter defer resolution of the complaint. A deferred resolution would require the judge to participate in professional treatment, counseling, after-care, and/or other assistance program recommended in the evaluation and subject to supervision by LAP and any other conditions established by the committee.

        A deferral agreement must include the contemplated resolution of the complaint if the judge successfully complies with the terms of the agreement. At the end of the deferral period the judge would bear the burden to demonstrate that he or she has successfully complied with the terms of the deferral. Upon successful completion of the deferral agreement, the complaint would be resolved upon the terms set forth in the deferral agreement. If the judge does not successfully complete the terms of the deferral, the committee may proceed upon the complaint. Additionally, the committee may bring forward the complaint at any time prior to successful completion of the terms of deferral upon determining that the judge is not participating in professional treatment, counseling, after-care, and/or other assistance program recommended in the evaluation or failing to comply with other conditions established by the committee. Prior to the complaint being brought forward, however, the judge shall be afforded an opportunity to appear before the committee to demonstrate that he or she has successfully complied with the terms of the deferral. The committee may also initiate an inquiry or complaint based on any new rule violations which may have occurred during the deferral period.

        Every deferral agreement shall be reduced to writing, shall provide for periodic reporting by LAP to the committee regarding the judge’s compliance or noncompliance, and shall be signed by the judge and the chair of the committee. A copy of the agreement will be given to the judge; the original shall be maintained in the committee’s file. 

        (B) All statements made by or for a judge in the course of discussions or negotiations with the committee regarding referral to LAP or in the course of his or her involvement in or assessment supervised by LAP, including statements made in connection with any evaluation, treatment, counseling, or after-care, shall be privileged and inadmissible as either substantive evidence or impeachment evidence against the judge.

        (C) The committee may vote to defer notification to the Reporter of deferred resolution for such period of time as it deems necessary. 
Notwithstanding any other provisions of Rule 40(3) to the contrary, if the committee resolves a report or complaint by way of a deferral agreement, the committee may enter a protective order pursuant to Rule 40(3)(g) sealing any parts of the record that would otherwise be public.

(9) Statement of Formal Charges, Notice of Hearing and Answer.

    (a) If, after investigation the committee concludes, by the affirmative vote of seven or more members taken at a meeting, that probable cause to warrant formal proceedings exists, it shall prepare and file a formal statement of charges and shall set a time and place of hearing before itself. The committee shall promptly serve the judge, in hand or by registered or certified mail, postage prepaid, with a copy of the formal statement of charges together with a notice of hearing.

    (b) The formal statement of charges shall (i) state whether the committee is proceeding on the basis of a complaint based upon a written report of alleged misconduct or upon a committee-generated complaint, (ii) contain a clear summary of the allegations against the judge and of the alleged facts forming the basis of such allegations (including facts developed by the investigation), (iii) identify and cite the specific provisions of the Code of Judicial Conduct alleged to have been violated, and (iv) advise the judge of his or her duty to answer as provided in subsection (f) of this section.

    (c) The formal statement of charges together with the notice of hearing shall be served on the judge at least thirty days prior to the hearing date assigned.

    (d) The notice of hearing shall include the following:

        (1) the date, time, and place of the hearing;

        (2) the fact that both the committee and the judge may be represented by counsel at the hearing, may secure the attendance of witnesses and the production of documents by subpoena, and may examine and cross-examine witnesses;

        (3) the identity of any committee or hearing counsel; and

        (4) the fact that all further notices concerning the hearing, including any adjournments thereof, shall be given by the chair or pursuant to his or her direction.

    (e) The committee shall give notice to the reporter, if any, of the date, time, and place of the hearing. The reporter shall be entitled to attend the hearing as an observer, and may be required to attend and participate therein as a witness, but shall have no other function or right with respect to the hearing.

    (f) Within thirty days after receipt of the formal statement of charges, the judge shall file an answer with the executive secretary, setting forth all denials, affirmative defenses, mitigating circumstances, and other matters which the judge intends to raise at the hearing.

    (g) At any time prior to final decision, the committee may allow or require an amendment of the formal statement of charges, and may allow an amendment of the answer. When an amendment is made to the formal statement of charges, whether before or after commencement of the hearing, the judge shall be afforded a reasonable time and opportunity, as determined by the chair, to answer and prepare a defense against the matters newly charged.

    (h) For good cause shown, the chair may extend the time within which the judge is required to file his or her answer, and may grant a continuance of the scheduled hearing, but no such extension or continuance shall be for a period longer than thirty days without the concurrence of the committee.

    (i) Following the answer by the judge, or at any time thereafter, the committee may terminate the proceeding and dismiss the complaint and formal statement of charges, with or without a caution, or with the consent of the judge resolve the matter without formal discipline, and shall give notice to the judge and the reporter.

    (j) The judge and reporter (if any) shall be notified of any action taken.  Prior to the issuance of any caution, the judge shall be afforded the opportunity to appear before the committee or file a supplemental response, whichever the judge elects.  Upon receipt of a written request from a reporter, a copy of any supplemental response shall be provided to the reporter.

(10) Discovery and Subpoena Powers.

    (a) At any time after the filing of a formal statement of charges, the judge or his or her counsel shall, upon written request, be entitled, as a matter of course:

        (1) to obtain the names and addresses of all persons known to the committee to have relevant information;

        (2) to examine and copy any of the following:

            (A) statements of the reporter;

            (B) statements of persons claiming to have knowledge of the acts, omissions, or events underlying the formal proceeding;

            (C) investigative reports made by or for the committee in connection with the proceeding; and

            (D) any other writing or item which is relevant to the proceeding, or which appears likely to lead to relevant information.

        (3) to discovery to the extent permitted in civil proceedings.

Anything in this section to the contrary notwithstanding, the committee shall not be required to disclose to the judge the identity of any informant who will not be called as a witness in support of the charges, and who has declined to sign a written report of alleged misconduct, unless the alleged misconduct was directed at the informant.

    (b) The judge shall make available to the committee, as a matter of course, upon the written request of the chair, executive secretary, or hearing counsel, any specified material which would be discoverable in civil proceedings in this State. The committee shall be entitled to discovery to the extent permitted in civil proceedings.

    (c) Nothing in this section shall authorize access to any information, writing, or other item which is privileged by law, or which is protected as an attorney’s work product.

    (d) If disclosure is not forthcoming as provided in subsection (a) or (b) of this section, the judge or the committee may move to compel discovery before a justice of the supreme court.

    (e)  Witnesses may be summoned by subpoena issued by an attorney member or judicial member of the committee upon request of the committee or the judge whose conduct is being investigated. An attorney member or judicial member of the committee shall have the power to subpoena witnesses, compel their attendance and testimony, and require the production of books, records, documents, or other evidence or material deemed relevant to the investigation or hearing.

    (f) The subpoena power shall be exercised in behalf of the judge, upon the judge’s written request or the written request of the judge’s counsel.

    (g) If any witness disobeys a subpoena, either as to his or her appearance or as to the production of things specified in the subpoena, or refuses to testify or answer questions, the committee may apply to a justice of the supreme court for an order compelling compliance with the subpoena or compelling the witness to testify.

    (h) Witnesses summoned to appear shall be entitled to the same fees and mileage expenses provided by law for witnesses in regular judicial proceedings. The expenses of witnesses shall be borne in the first instance by the party calling them.

(11) Conduct of Hearing.

    (a) The hearing shall be open to the public.

    (b) The committee may proceed with the hearing at the time and place fixed, whether or not the judge has filed an answer or appears for the hearing. The committee may draw an unfavorable inference from the failure of the judge to answer or appear; but no such failure, standing alone, shall be sufficient to meet the standard of proof.

    (c) Every witness in any hearing before the committee shall be sworn to tell the truth.

    (d) Hearing counsel shall have the burden of establishing by clear and convincing evidence a violation of the Code of Judicial Conduct.

    (e) The judge shall be entitled to counsel of his or her choice, and shall have the right to adduce evidence, produce and cross-examine witnesses, and present all relevant arguments. The judge shall be given an opportunity to explain and be heard before the committee in advance of any unfavorable action.

    (f) The committee shall not be bound by the technical rules of evidence, and may admit evidence which it considers to be reliable, material, and relevant. The chair shall rule on objections to the receipt of evidence, subject to being overruled by a majority of the committee present at the hearing.

    (g) The hearing shall be recorded verbatim by stenographic, electronic, or other means approved by the committee. A transcript of the hearing shall be provided to the judge without cost.

    (h) The decision of the committee shall be based solely on the record evidence presented to the committee at the hearing, but shall not be based solely on hearsay evidence. The committee shall exclude from its consideration any information reviewed in earlier stages of the proceeding, unless such information is received in evidence at the hearing so as to become a part of the record.

    (i) At any time after the hearing is closed but prior to final decision, the committee may reopen the hearing for the taking of additional evidence. The judge and the reporter shall be given such notice of any such supplemental session as the circumstances may reasonably require.

(j) Photographing, Recording and Broadcasting

(1) Except as otherwise provided by this rule or by other provisions of law, any person, whether or not a member of an established media organization, shall be permitted to photograph, record and broadcast all proceedings that are open to the public, provided that such person provides advance notice to the committee in accordance with section (3) of this rule that he or she intends to do so. No person shall photograph, record or broadcast any proceeding without providing advance notice to the committee that he or she intends to do so. In addition to giving any parties in interest an opportunity to object, the purpose of the notice requirement is to allow the committee to ensure that the photographing, recording or broadcasting will not be disruptive to the proceedings and will not be conducted in such a manner or using such equipment as to violate the provisions of this rule.

(2) Official court reporters, court monitors and other persons employed or engaged by the committee to make the official record of any proceeding may record such proceeding by video and/or audio means without compliance with the notice provisions of section (1) of this rule.

(3) Any person desiring to photograph, record or broadcast any proceeding, or to bring equipment intended to be used for these purposes into a hearing room, shall submit a written request to the committee before commencement of the proceeding, or, if the proceeding has already commenced, at the first reasonable opportunity during the proceeding, so the committee before commencement of the proceeding, or at an appropriate time during the proceeding, may give all interested parties a reasonable opportunity to be heard on the request.

(4) Any party to a proceeding or other interested person who has reason to believe that a request to photograph, record or broadcast a proceeding will be made and who desires to place limitations beyond that specified by this rule upon these activities may file a written request seeking such relief. The request shall be filed as far in advance of the proceeding as is practicable. Upon the filing of such a request, the committee may schedule a hearing as expeditiously as possible before the commencement of the proceeding and, if a hearing is scheduled, the committee shall provide as much notice of the hearing as is reasonably possible to all interested parties and to the Associated Press, which shall disseminate the notice to its members.

(5) The committee shall not establish notice rules, requirements or procedures that are different than those established by this rule.

(6) At any hearing conducted pursuant to subsections (3) or (4) of this rule, the party or person seeking to prohibit or impose restrictions beyond the terms of this rule on the photographing, recording or broadcasting of a proceeding that is open to the public shall bear the burden of demonstrating: (1) that the relief sought advances an overriding public interest that is likely to be prejudiced if the relief is not granted; (2) that the relief sought is no broader than necessary to protect that interest; and (3) that no reasonable less restrictive alternatives are available to protect the interest. Any order prohibiting or imposing restrictions beyond the terms of this rule upon the photographing, recording or broadcasting of a proceeding that is open to the public shall be supported by particularized findings of fact that demonstrate the necessity of the committee’s action.

(7) The committee retains discretion to limit the number of cameras, recording devices and related equipment allowed in the hearing room at one time. In imposing such limitations, the committee may give preference to requests to photograph, record or broadcast made by a representative of an established media organization that disseminates information concerning court proceedings to the public. The committee also may require representatives of the media to arrange pool coverage.

(8) It is the responsibility of representatives of media organizations desiring to photograph, record or broadcast a proceeding to contact the executive secretary in advance of a proceeding to ascertain if pool coverage will be required. If the committee has determined that pool coverage will be required, it is the sole responsibility of such media representatives, with assistance as needed from executive secretary, to determine which media organization will provide the coverage feed. Disputes about pool coverage will not ordinarily be resolved by the committee, and the committee may deny media organizations’ requests to photograph, record or broadcast a proceeding if pool agreements cannot be reached. It also is the responsibility of said person to make arrangements with the executive secretary sufficiently in advance of the proceeding so that the set up of any needed equipment in the hearing room, including equipment for pool coverage, can be completed without delaying the proceeding. The court shall allow reasonable time prior to a proceeding for the set up of such equipment.

(9) The committee shall make all documents and exhibits filed with the commitee, and not sealed, available for inspection by members of the public in a reasonably timely fashion, it being recognized that the committee’s need to make use of documents and exhibits for official purposes must take precedence over their availability for public inspection. The committee may elect to make one “public” copy of an exhibit available.

(10) The exact location of all recording, photographing and broadcasting equipment within the hearing room shall be determined by the committee. Once established, movement of such equipment within the hearing room is prohibited without the express prior approval of the committee. The committee may prohibit the use of any equipment which requires the laying of cords or wires that pose a safety hazard or impair easy ingress and egress from the hearing room. All equipment used must operate with minimal noise so as not to disrupt the proceedings.

(11) Unless otherwise ordered by the committee, the following standing orders shall apply to all recording, photographing or broadcasting of proceedings within any hearing room:

(a) No flash or other artificial lighting devices shall be used.

(b) Set up and dismantling of equipment in a disruptive manner while committee is in session is prohibited.

(c) No recording, photographing or broadcasting equipment may be moved into, out of, or within the hearing room while the hearing is in session.

(d) Recording, photographing or broadcasting equipment must remain a reasonable distance from the parties, counsel tables, alleged victims and their families and witnesses, unless such person(s) voluntarily approach the position where such equipment is located. No such equipment shall be used or set up in a location that creates a risk of picking up confidential communications between lawyer and client or conferences held at the bench among committee members and counsel or the parties.

(e) All persons using recording, photographing or broadcasting equipment must abide by the directions of the committee at all times.

(f) Interviews within the hearing room are not permitted before or after a proceeding.

(g) A person who has been granted permission to record, photograph or broadcast a hearing shall not engage in any activity that distracts the participants or impairs the dignity of the proceedings.

Comments

With respect to subsection (3) of this rule, it is contemplated that such requests will be deemed timely if they are filed enough in advance of the proceeding that the committee has an opportunity to read and consider the request, to orally notify all interested parties of its existence, and to conduct a brief hearing in the event that any interested party objects to the request. Given the strong presumption under New Hampshire law that photographing, recording and/or broadcasting judicial conduct committee proceedings that are open to the public is allowable, this subsection is not intended to impose lengthy or onerous advance notice requirements; instead, it recognizes that frequently such requests will be filed only shortly before the proceeding in question is to begin.  

(12) Dispositions Following Hearing.

    (a) The committee shall render its decision promptly after the hearing.

    (b) If the committee decides that a violation of the Code of Judicial Conduct has not been established, the proceeding shall be dismissed, with or without a caution, and the judge, hearing counsel and the reporter shall be so notified.

    (c) Violation Not Warranting Formal Discipline. If the committee determines, by the affirmative vote of at least seven of its members, that there has been a violation of the Code of Judicial Conduct, but that the violation is not of a sufficiently serious nature to warrant the imposition of formal discipline by the supreme court, it shall dispose of the matter by resolution without formal discipline, with or without consent of the judge. Such disposition may take the form of issuing a reprimand, requiring corrective action, directing professional counseling or assistance, imposing conditions on the judge’s conduct, or other similar remedial action, or any combination of the foregoing. The committee may provide for monitoring or review by an administrative judge or other suitable person of any remedial action it may require or conditions it may impose in connection with a resolution without formal discipline. If a proceeding is disposed of by resolution without formal discipline, the committee shall prepare a report of its findings and disposition, which shall be filed in the public docket of the committee. Any member who dissents from the determination of the committee may prepare a minority report which shall be appended to the report of the committee. A copy of the decision shall be sent to the judge and committee hearing counsel. Disclosure to the reporter shall be as provided in subsection (3)(d)(2) of this rule.

(1)  If the judge disagrees with the findings or recommendations reached by the committee, the judge may, within 15 days of the notice of the decision of the committee, file a request with the supreme court for a de novo hearing.  If such a request is filed, only the certified statement of formal charges and the judge’s answer shall be filed with the court by the committee, and the supreme court shall appoint a judicial referee to conduct the hearing.  The hearing shall be public.  After hearing, the judicial referee shall issue a decision including any findings and recommendations for sanctions.  The decision of the judicial referee together with any other pleadings and exhibits introduced at the hearing, shall be filed by the judicial referee with the supreme court which shall issue a notice of decision to the judge, committee hearing counsel and the committee.  The supreme court shall order a transcript of the hearing before the judicial referee to be prepared and filed with the court.

(2)  If the judge does not file a request for a de novo hearing within 15 days of the notice of decision of the committee, the findings and disposition of the committee shall be final.  The committee shall file the report of its findings and disposition with the supreme court for informational purposes only.

    (d) Violation Warranting Formal Discipline. If the committee determines, by the affirmative vote of at least seven of its members, that the judge complained against has violated the Code of Judicial Conduct and that the violation is of a serious nature so as to warrant formal disciplinary action by the supreme court, the committee shall prepare a summary report of the proceeding and of its findings which shall be filed in the public docket of the committee. Such report shall include the recommendations of the committee (if any) concerning the sanctions to be imposed. Any member who dissents from the determination of the committee may prepare a minority opinion which shall be appended to the report of the committee. A copy of the decision shall be sent to the judge and committee hearing counsel, and the committee shall also notify the supreme court that a decision finding serious judicial misconduct has been docketed. Disclosure to the reporter shall be as provided in subsection (3)(d)(2) of this rule.

(1)  If the judge disagrees with the findings or recommendations reached by the committee, the judge may, within 15 days of the notice of the decision of the committee, file a request with the supreme court for a de novo hearing.  If such a request is filed, only the certified statement of formal charges and the judge’s answer shall be filed with the court by the committee, and the supreme court shall appoint a judicial referee to conduct the hearing.  The hearing shall be public.  After hearing, the judicial referee shall issue a decision including any findings and recommendations for sanctions.  The decision of the judicial referee together with any other pleadings and exhibits introduced at the hearing, shall be filed by the judicial referee with the supreme court which shall issue a notice of decision to the judge, committee hearing counsel and the committee.  The supreme court shall order a transcript of the hearing before the judicial referee to be prepared and filed with the court.

(2)  If the judge does not file a request for a de novo hearing within 15 days of the notice of decision of the committee, the committee shall immediately file its certified decision together with the statement of formal charges, the judge’s answer and any other pleadings and exhibits with the supreme court. The supreme court shall order a transcript of the hearing before the committee to be prepared and filed with the court. The decision and record of the committee and all further proceedings before the court shall be public.  

(13) Review by Supreme Court.

Upon receipt of a report of the findings and record of the proceedings before the committee under section 12(d)(2), or after a de novo hearing before a judicial referee under subsections 12(c)(1) and 12(d)(1), the supreme court shall set the matter down for briefing and oral argument which shall be open to the public. Any findings or discipline imposed under these three subsections shall not be final or in effect pending review by the court. At such oral argument the committee and the judge complained against shall have the opportunity to appear in person and/or by counsel. The supreme court shall file a written opinion and judgment determining whether the findings of fact are supported by the record, and directing such disciplinary action as it finds just and proper, or exonerating the judge complained against.

(13-A) Expenses Relating to Discipline Enforcement.

In all cases in which discipline is imposed, including cases resolved without formal discipline, all expenses incurred by the committee on judicial conduct in the investigation and enforcement of discipline may, in whole or in part, be assessed to a disciplined judge to the extent appropriate.

(14) Counsel Fees.

Upon application from a judge against whom formal charges have been brought, the committee may, in its discretion and subject to the availability of funds, pay such portion as it deems equitable of the fee and expenses of the judge’s counsel. Within 30 days of the committee’s decision on such an application, the judge may request that the court review the matter.

(15) Immunity.

All persons shall be immune from civil liability for all of their statements made in good faith to the committee or to the supreme court or given in any investigation or proceedings pertaining to a report of alleged misconduct or complaint against a judge. The protection of this immunity does not exist as to: (a) any statements not made in good faith; and (b) any statements made to others. The committee, its staff, counsel, and investigators shall be immune from civil liability for any conduct arising out of the performance of their duties.

(16) Public Access to Committee Proceedings and Records.

    (a) Correspondence relating to a report of alleged misconduct against a person who is not subject to the Code of Judicial Conduct shall be available for public inspection for a period of two years. After this two-year period, the correspondence shall be sealed.

    (b) All records (other than work product, internal memoranda, and deliberations) relating to a report of alleged misconduct against a judge that is not docketed as a complaint shall be maintained by the committee for two years from the date of filing, and shall be available for public inspection during this period. After this two-year period, the records shall be sealed.

    (c) All records (other than work product, internal memoranda, and deliberations) relating to a report of alleged misconduct filed with the committee that is docketed as a complaint shall be retained by the committee and shall be available for public inspection in accordance with the provisions of this rule.

    (d) The committee shall maintain an index of complaints docketed against each judge, which shall contain pertinent information, including the outcome of the complaint. No index of reports of alleged misconduct that are not docketed as complaints shall be maintained.

(17) Use of Closed Files.

A closed file may be referred to by the committee in subsequent proceedings in the following circumstances:

    (a) Where a complaint or formal charges have been dismissed for any reason or there has been a finding of insufficient cause to proceed, and the subsequent proceeding raises similar allegations against the judge or is based upon a similar occurrence or factual situation, the closed file may be used to exonerate the judge or may be made a part of the investigation of the new complaint; or

    (b) Where, after the disposition of a prior proceeding without formal discipline, the judge fails to refrain from acting in the manner that caused the prior report of alleged misconduct or complaint to be filed and a subsequent report of alleged misconduct is filed alleging similar conduct which is established or proven, the closed file may be used as evidence tending to show that the problem is a continuing one; or

    (c) Where, following the hearing of subsequent related or unrelated charges, the committee determines that a violation of the Code of Judicial Conduct has occurred, the closed file may be referred to in connection with the decision as to the nature of the informal resolution to be imposed by the committee or as to the sanction to be recommended to the supreme court for imposition by the court. 

RULE 41. LIMITED LIABILITY ENTITIES

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[Repealed].

Rule 42. Admission To The Bar; Board of Bar Examiners; Character And Fitness Committee

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Introduction

The office of bar admissions is responsible for administering the bar admission process and supporting the functions of the board of bar examiners and character and fitness committee as set forth below. The office of bar admissions is a division within the administrative office of the courts.

1. Board of Bar Examiners

(a)  Board of Bar Examiners Established.  A board of bar examiners (board) will be appointed by the court to examine persons desiring to be admitted to the bar of New Hampshire.  The board shall consist of no fewer than thirteen members of the New Hampshire bar.  Appointments to the board shall be for terms of three years, and members shall be eligible for reappointment. The court shall designate one member of the board to serve as chair and one member to serve as vice-chair.

(b)  Duties of Board.  The board is charged with the duty and vested with the power and authority:

(1)  to determine eligibility of applicants for admission to the bar of New Hampshire;

(2)  to determine reciprocal jurisdictions for purposes of admission by motion without examination under Rule 42(XI)(a);

(3)  to provide for and administer the bar examination, and to provide for the conduct and security of the bar examination;

(4)  with the approval of the court, to set the scores that will be considered passing on the bar examination and the Multistate Professional Responsibility Examination;

(5)  to establish a fee schedule, with the approval of the court, for applications for admission to the New Hampshire bar, and for other services;

(6)  to establish subcommittees, as appropriate, to perform its duties;

(7)  to delegate to any of its members, subcommittees or office of bar admissions general counsel, all or any part of its duties and responsibilities under this section; 

(8)  to direct the actions of the office of bar admission general counsel and other staff in the performance of the non-administrative functions prescribed in this rule;

(9)  to promulgate, amend and revise regulations relevant to the above duties to implement this rule.  The regulations of the board shall be consistent with the provisions of this rule and shall not be effective until approved by the court, but once approved, shall have the same force and effect as this rule.

1.  Character and Fitness Committee

      (a)  Committee on Character and Fitness Established.   A Supreme Court committee on character and fitness (committee) is established to examine the character and fitness of applicants desiring to be admitted to the bar of New Hampshire.  The committee shall consist of two non-attorney members and seven members of the New Hampshire Bar Association as follows: (i) one member of the board of bar examiners; (ii) one member who is a member of the committee on professional conduct; (iii) the attorney general of New Hampshire or his or her designee; (iv) the clerk of the supreme court or his or her designee; and (v) three other members of the New Hampshire Bar Association, one of whom shall be designated chair of the committee.  The terms of the attorney general and of the clerk of the supreme court as members of the committee shall be coterminous with their terms of office; and, in the absence of either the attorney general or the clerk of the supreme court, his or her designee is authorized to act as an alternate, exercising all the powers of an appointed member of the committee. Each other member of the committee shall be appointed for a term of three years and shall be eligible for reappointment.

(b)  Expenses of Committee. Members of the committee shall receive no compensation for their services, shall be reimbursed for their reasonable expenses incurred in the performance of their duties under this rule.  

(c)  Duties of Committee.  The committee is charged with the duty and vested with the power and authority:

(1)  to investigate the character and fitness of applicants to the New Hampshire bar;

(2)  to conduct interviews and evidentiary hearings with regard to an applicant’s character and fitness;

(3)  to make recommendations to the New Hampshire Supreme Court regarding an applicant’s good moral character and fitness to practice law in New Hampshire;

(4)  to establish subcommittees, as appropriate, to perform its duties;

(5)  to delegate to any of its members, subcommittees or office of bar admissions general counsel, all or any part of its duties and responsibilities under this section; 

(6)  to promulgate, amend and revise regulations relevant to the above duties to implement this rule.  The regulations of the committee shall be consistent with the provisions of this rule and shall not be effective until approved by the court, but once approved, shall have the same force and effect as this rule.

III.  Office of Bar Admissions  

(a)  An Office of Bar Admissions shall be established to administer and support the functions of the board and the committee. The office of bar admissions is a division within the administrative office of the courts. The office of bar admissions is managed by office of bar admissions general counsel. Employees of the office of bar admissions are judicial branch employees and are subject to all rules and policies of the judicial branch.

(b) The director of the administrative office of the courts, after consultation with the supreme court, and the chairs of the board of bar examiners and the committee on character and fitness, shall appoint an office of bar admissions general counsel. The director of the administrative office of the courts shall consult with the chairs of the 40 board of bar examiners and the committee on character and fitness regarding the performance of office of bar admissions general counsel and may provide information to the chairs related to the performance of office of bar admissions general counsel.

(c) The office of bar admissions general counsel may exercise authority delegated to him or her by the director of the administrative office of the courts, the board, the committee, or their chairs. 

(d) With respect to administrative functions of the office of bar admissions, the office of bar admissions general counsel shall report to the director of the administrative office of the courts and shall manage the office of bar admissions as a division within the judicial branch, including but not limited to maintaining permanent records of the 
operation of the office, and assisting with the preparation of the annual budget. 

(e) The office of bar admissions general counsel shall have the authority to retain the assistance of experts and other professionals when deemed necessary for the efficient discharge of its duties or the duties of the board of bar examiners or the committee on character and fitness from funds appropriated for this purpose. 

(f) The director of the administrative office of the courts shall:

(1) employ assistants as may be deemed necessary whether full-time or part-time; and

(2) retain independent counsel if needed.

1.  General Requirements for Admission to Bar  

(a)  Eligibility.  Every applicant for admission to the New Hampshire bar shall be required:

(1)  to comply with all provisions of this rule;

(2)  to file all application forms prescribed by the board, respond to all requests of the board, the committee, their designees, and the staff of the Office of Bar Admissions, for information deemed relevant to the application for admission, and to pay all prescribed fees related to the application for admission;

(3)  to meet one of the following requirements:

    (A) to pass the bar examination; or

    (B) to satisfy the requirements for admission by transferred UBE score set forth in paragraph X; or

    (C) to satisfy the requirements for admission without examination set forth in Rule 42(XI); or

    (D) to satisfy the requirements for admission after successful completion of the Daniel Webster Scholar Honors Program set forth in Rule 42(XII);

(4)  to pass the Multistate Professional Responsibility Examination;

(5)  to be at least 18 years of age;

(6)  to satisfy the educational requirements set forth in Rule 42(V); and

(7)  to establish his or her character and fitness to practice law to the committee and to the court.

(b)  Determination of eligibility.  An applicant’s eligibility to take the bar examination, to be admitted by transferred UBE score, or to be admitted by motion without examination, shall be determined in the first instance by the office of bar admissions general counsel or a member of the board.  If the office of bar admissions general counsel or board member determines that the applicant is ineligible for admission, the applicant may seek reconsideration from the board or a subcommittee thereof, in accordance with procedures established by the board.

 (c)  Petition for Review. 

(1)  If the board or subcommittee determines that an applicant is ineligible for admission, the applicant may seek review by the supreme court of the board or subcommittee’s final decision by filing a petition with the supreme court for review within twenty days of the date of the notice of final decision. If no such petition is filed within the twenty-day period, the board or subcommittee’s determination shall not be subject to review.  The petition for review shall:

(A)  specify the name and address of the person seeking review of the final decision and of counsel, including counsel’s bar identification number;

(B)  contain a copy of the final decision sought to be reviewed, a copy of a motion for reconsideration, if any, and a copy of any order on the motion for reconsideration;

(C)  specify the questions presented for review;

(D)  specify the provisions of the constitutions, statutes, rules, regulations or other law involved in the matter, setting them out verbatim, and giving their citation.  If the provisions to be set out verbatim are lengthy, their pertinent text shall be annexed to the petition for review;

(E)  set forth a concise statement of the case containing the facts material to the consideration of the questions presented, with appropriate references to the transcript, if any;

(F)  set forth all claims of error and reasons for challenging the board or subcommittee’s determination;

(G)  include a statement that every issue raised has been presented to the board or subcommittee below; and

(H)  contain a certification that a copy of the complete petition for review has been delivered, mailed, or served on the Office of Bar Admissions.

          (2)  Upon notification that a petition for review has been filed, the board shall transmit to the supreme court the complete record in the case, including a transcript of any hearing before the board or subcommittee of the board.  The petitioner, and not the board, is responsible for paying the cost of preparing the transcript.

          (3)  Unless the court orders otherwise, no response to the petition for review will be required and the petition shall be deemed submitted for the court’s review based upon the record.  The court shall review the petition for review in the normal course and, after consideration of the petition for review and the record, the court shall make such order as justice may require.

      (d)  Time Limitation. If an applicant does not satisfy the requirements for admission to the bar set forth in Rule 42 (IV)(a) above and take the oath of admission within two years of the date of the notice of successfully passing the bar examination, or within two years of the date of the notice that his or her motion for admission without examination, or motion for admission by transferred UBE score has been granted, the applicant’s application or motion for admission to the bar shall be denied, and he or she shall be required to retake and pass the bar examination, or file a new motion for admission without examination, or a new motion for admission by transferred UBE score, unless the board grants a request for an extension of the deadline for good cause shown.  Any such applicant shall be required to once again establish his or her good moral character and fitness to the satisfaction of the committee and the supreme court.  

      (e)  Readmission to the bar.  The application process for a person seeking readmission to the bar is governed by Rule 37.    

 (f)  Applicant’s duty to cooperate.  An applicant for admission to the New Hampshire bar has a duty to cooperate with the board, the committee, their designees, and the staff of the Office of Bar Admissions.  Any person who seeks admission to the New Hampshire bar agrees to waive all rights of privacy with reference to any and all documentary material filed or secured in connection with his or her application or motion for admission. The applicant also agrees that any documentation submitted by the applicant may be offered into evidence, without objection, by the board or committee, in any proceeding relating to the applicant’s admission to the practice of law.  

 (g)  Confidentiality.  All documents submitted by an applicant for admission to the New Hampshire bar, all information relating to an applicant gathered by the board, committee, or staff of the Office of Bar Admissions, and all minutes and records circulated to members of the board or committee, shall be confidential and shall not be disclosed or open to the public for inspection except for the following permitted disclosures. The board, committee and staff of the Office of Bar Admissions are authorized to:  

1. disclose the names and addresses of applicants to the New Hampshire bar;
2. publish the names of applicants who have passed the bar examination;
3. publish statistical information about bar examination results;
4. provide name-specific pass-fail results to any law school regarding graduates of that law school, which may include an applicant’s prior names, date of birth, the date that the applicant’s law degree was conferred, and whether the applicant was a first-time or repeat taker. The information will be released to the law schools on condition that no information other than the names of those who passed the exam will be further disseminated.
5. upon receipt of a request and duly executed release from an applicant, provide copies of material in an applicant’s file to admissions authorities from other jurisdictions;
6. investigate the character and fitness of an applicant, and disclose any information necessary to the investigation, pursuant to an authorization and release signed by the applicant as part of the petition and questionnaire for admission;
7. disclose relevant information that is otherwise confidential to agencies authorized to investigate complaints of attorney misconduct, or to law enforcement agencies authorized to investigate and prosecute violations of the criminal law;
8. release information regarding an applicant pursuant to a court order;
9. release name and score information to the National Conference of Bar Examiners;
10. release a copy of an applicant’s bar admission application upon a written request executed by the applicant and submission of the appropriate fee;
11. publish an applicant’s answer to a question on the bar examination as a representative sample of an answer, provided that the identity of the applicant is not disclosed.
12.  Educational Requirements for Admission  

(a) Undergraduate Education.  Every applicant for admission to the bar must furnish satisfactory proof that the applicant successfully completed at least three (3) years of work required for a bachelor’s degree in an accredited college before beginning the study of law, or that the applicant received an equivalent education.  An applicant who has not successfully completed at least three (3) years of work required for a bachelor’s degree in an accredited college shall have the burden of proving educational equivalency.  In addition to filing the petition and questionnaire for admission, any such applicant must submit information sufficient for the board to determine that the requirements of this paragraph have been met.  

(b) Law School Education.  Except as provided in Rule 42(XI)(b), every applicant must have graduated from a law school approved by the American Bar Association having a three year course and requiring students to devote substantially all their working time to study, called a full-time law school, or from a law school approved by the American Bar Association having a course of not less than four school years equivalent in the number of working hours to a three year course in a full-time law school and in which students devote only part of their working time to their studies, called a part-time law school.  A combination of study in full-time and part-time law schools will be accepted only if such law schools meet the above requirements, and the applicant has graduated from one of the law schools.  Study in any law school which does not require attendance of its students at its lectures or classes or which conducts its courses by distance education (i.e. by technological transmission, including the internet; open broadcast; closed circuit, cable, microwave, or satellite transmission; audio or computer conferencing; video cassettes or discs; or correspondence) shall not constitute compliance with the rule, except that distance education in an ABA-approved law school, in compliance with Standard 306 of the ABA Standards and Rules of Procedure for Approval of Law Schools, shall constitute compliance.

   (c) Foreign Law School Graduate. Notwithstanding the foregoing paragraph, an applicant who has graduated from a law school in a foreign country and who is a member in good standing of the bar of that country or a member of the bar of one of the States of the United States who was admitted after examination and is in good standing, may qualify to sit for the New Hampshire Bar Examination or may apply for admission upon motion by providing to the board satisfactory proof of his or her educational sufficiency. Any person who seeks admission to practice law in the State of New Hampshire who is a graduate of a law school in a foreign country shall have the burden of proving that the requirements of this section have been met. In addition to filing the petition and questionnaire for admission, any foreign law school graduate seeking admission must file an affidavit, signed under oath, attesting that the requirements of this section have been met, and submitting information sufficient for the board to determine that the requirements have been met. To prove educational sufficiency, an applicant must prove:

(1) that he or she successfully completed a period of law study in a law school or law schools each of which, throughout the period of the applicant’s study therein, was recognized by the competent accrediting agency of the government of such other country, or a political subdivision thereof, as qualified and approved (distance study, correspondence study and on-line programs are not acceptable); and

(2) that such other country is one whose jurisprudence is based upon the principles of English Common law; and

(3) that the program and course of law study successfully completed by the applicant were substantially equivalent in substance to the legal education provided by a law school accredited by the American Bar Association. An applicant will be deemed to have a legal education equivalent in substance to that provided by law schools accredited by the American Bar Association if the applicant successfully completed, at a law school accredited by the American Bar Association, at least 24 semester credit hours of coursework dealing with either the law of the United States or the law of one of the States of the United States, including a course in basic constitutional law and professional responsibility. Distance study, correspondence study and on-line programs are not acceptable. At least sixteen (16) of the semester credit hours must have been from among at least five of the following categories:

(A) Evidence

(B) Taxation

(C) Civil or Criminal Procedure

(D) Contracts

(E) Decedents’ Estates

(F) Real Property

(G) Corporations or business organizations

(H) Torts

(I) Criminal Law

(4) If the applicant has met the requirements of paragraphs (1) and (2), but the applicant’s program and course of law study do not meet the requirements of paragraph (3), the board may nevertheless determine that the applicant has proved educational sufficiency based upon the board’s consideration of the following factors:

(A) The course of study that was completed as compared to that offered in a law school approved by the American Bar Association;

(B) The attorney’s pre-legal education as compared to that offered in a U.S. high school and college or university;

(C) The length and nature of prior legal practice or teaching, if any;

(D) The applicant’s familiarity with the American constitutional, common-law and statutory legal systems;

(E) The applicant’s successful completion of additional legal studies.

1.  Proof of Character and Fitness  

(a) Any person who applies for admission to the bar shall be required to establish his or her moral character and fitness to the satisfaction of the committee and the court before admission to the bar.  In determining the moral character and fitness of applicants, the committee shall consider the Character and Fitness Standards set forth in New Hampshire Supreme Court Rule 42B. 

(b) Any person who seeks admission to the bar shall at all times have the burden of proving his or her good moral character to the committee and the court. The failure of an applicant to answer any question on the petition and questionnaire for admission, or any question propounded by any member of the committee, a designee of the committee, or by the staff of the Office of Bar Admissions, or to supply any documentary material requested by any of them, shall justify a finding that the applicant has not met the burden of proving good moral character.  

(c) Any person who seeks admission to the practice of law shall file with the committee the prescribed petition and questionnaire for admission, which shall contain a certificate signed by two persons certifying the applicant’s good moral character.  The petition and questionnaire for admission shall be executed by the applicant under oath.  

(d) Upon receiving the petition and questionnaire for admission, the committee shall promptly: (1) review the facts stated in the petition, communicate with the references, and make such further investigation as it may deem desirable or necessary; (2) if it deems necessary, arrange for a personal interview with the applicant; (3) consider the character and fitness of the applicant to be admitted to the practice of law; and (4) transmit to the supreme court a report of its investigation and its recommendation in regard to the character and fitness of the applicant for admission to the practice of law.  

(e) If the recommendation of the committee is in favor of admission, the court may accept the recommendation and grant the application for admission or decline to accept the recommendation.  If the court determines that the recommendation of the committee should not be accepted, it shall either remand the matter to the committee for further investigation and consideration or refer the matter to a referee for an evidentiary hearing during which the applicant shall have the burden of proving his or her good moral character and fitness.  If the recommendation of the committee is against admission, the report of the committee shall set forth the facts upon which the adverse recommendation is based and its reasons for rendering an adverse recommendation. The committee shall promptly notify the applicant about the adverse recommendation and shall give the applicant an opportunity to appear at a hearing before it and to be fully informed of the matters reported to the court by the committee, and to answer or explain such matters.  Testimony at such hearings shall be given under oath and shall be recorded.  Counsel for the committee, counsel for the applicant, and the office of bar admissions general counsel, may issue subpoenas and subpoenas duces tecum to summon witnesses with or without documents for attendance at hearings.  Upon the request of an applicant who is not represented by counsel, counsel for the committee, or the office of bar admissions general counsel, may issue such subpoenas to summon witnesses.

     (f) If, following an applicant’s appearance before it, the committee is still of the opinion that an adverse report should be made on the application, it shall first give the applicant the privilege of withdrawing the application. If the applicant elects not to withdraw the application, and the second report and recommendation of the committee to the court is against approval of the application, the court, upon receipt of the report with the adverse recommendation by the committee, may grant the application or shall require the applicant to show cause why the application should not be denied.

VII.  Bar Examination  

(a)  The New Hampshire bar examination shall be the Uniform Bar Examination prepared by the National Conference of Bar Examiners.  It shall be administered at a time and place determined by the board on the last Wednesday of February and the preceding day, and the last Wednesday of July and the preceding day.  

(b)  The board’s determination of an applicant’s score on the bar examination is final and is not subject to review.   

(c)  If an applicant is aggrieved by a final decision of the board, or a subcommittee thereof, with respect to an issue arising from the applicant’s conduct during, or related to, the bar examination, the applicant may seek review of the board or subcommittee’s final decision by the supreme court by filing with the supreme court a petition for review within 20 days of the mailing of the notice of final decision.  The applicant shall follow the procedures set forth in Supreme Court Rule 42 (IV)(c).

VIII.  Application to take Bar Examination  

(a)  A person seeking to take the bar examination shall file with the board an application to take the New Hampshire bar examination and a completed petition and questionnaire for admission by the deadlines established by the board.  The application and petition and questionnaire for admission must be accompanied by the bar examination application fee which shall be paid to the State of New Hampshire.  The fee shall be nonrefundable.  

(b)  If an applicant to take the bar examination notifies the board at least thirty days before the date of the bar examination that he or she will not take the bar examination for which he or she applied, and wishes to take the immediately subsequent administration of the bar examination, the applicant shall be required to pay an administrative fee in an amount set by the board, but shall not be required to pay an additional bar examination application fee or submit a new application. The applicant is also required to notify the board in writing on or before the application deadline for the subsequent examination of any changes to the applicant’s petition and questionnaire for admission.

(c)  A person who has failed the New Hampshire bar examination four times will not be permitted to retake the examination.  For purposes of Rule 42, attempts to pass the examination shall count toward the limit of four regardless of whether the examination was taken in New Hampshire or taken in another jurisdiction administering the Uniform Bar Examination prepared and coordinated by the National Conference of Bar Examiners.

1.  Bar Examination Testing Accommodation  

(a)  In accordance with the testing accommodation policy most recently approved by the court, an applicant whose disability requires testing accommodations shall submit a written request to the board at the time that the applicant files the application and petition and questionnaire for admission.  No request for testing accommodations shall be accepted if received after the application deadline for the July or February examination as established by the board.  The written request shall describe:

(1) the type of accommodation requested; and

(2) the reasons for the requested accommodation, including medical documentation in a format set forth in the testing accommodation policy.  

(b)  The request for accommodation shall be ruled on in the first instance by the chair of the board or his or her designee, and the applicant shall be notified of the decision. A denial or modification of a request for testing accommodations by the chair or his or her designee may be appealed to the board of bar examiners, or a subcommittee thereof, in accordance with procedures established by the board.  The board or subcommittee’s decision on appeal constitutes a final decision of the board.  The applicant may seek review of the board or subcommittee’s final decision by the supreme court by filing with the supreme court a petition for review within 20 days of the mailing of the notice of final decision.  The applicant shall follow the procedures set forth in Supreme Court Rule 42(IV)(c). 

1.  Admission by Transferred Uniform Bar Examination Score

    (a)  An applicant who meets the Eligibility Requirements set forth in paragraphs 42 (IV)(a), (V), and (VI), and the following additional requirements may, upon motion to the board, be admitted by transferred UBE score.  The applicant shall:

     (1)  Have earned a UBE score that meets or exceeds the minimum score required by the board on the date that the motion is filed; and

     (2)  Have either:

            (A) earned the UBE score in an administration of the UBE which occurred within three years immediately preceding the date on which the motion for admission by transferred UBE score was filed; or 

            (B)  earned the UBE score more than three years but less than five years prior to the date of filing of the motion for admission by transferred UBE score, and establish that he or she has been primarily engaged in the active practice of law, as defined by Rule 42 (XI)(d), for at least two years in another state, territory, or the District of Columbia in which the applicant was a member in good standing and authorized to practice law throughout the entire two-year period.

    (b)  To qualify for admission under this Rule 42 (X), the applicant must have earned the minimum score required by the board within no more than four attempts on the UBE. For purposes of this rule, attempts to earn the minimum score are counted regardless of whether the applicant tested in New Hampshire or in another jurisdiction administering the UBE. 

    (c)  A person seeking admission by transferred UBE score shall file with the board the required motion form, a completed petition, and supporting documents, in accordance with procedures established by the board, accompanied by the motion fee, which shall be paid to the board.  The fee shall be nonrefundable, provided, however, that if a motion for admission by transferred UBE score is denied prior to the commencement of the character and fitness investigation by the committee, then one-half of the character and fitness investigation fee shall be refunded.  

1.  Admission by Motion Without Examination  

(a)  Applicant from Reciprocal Jurisdiction. 

(1)  An applicant who meets the Eligibility Requirements set forth in Rule 42(IV)(a), (V), and (VI), and the following additional requirements may, upon motion to the board, be admitted to the bar without examination.  The applicant shall:

(A)  have been admitted by bar examination to practice law in another state, territory, or the District of Columbia; and

(B)  have been primarily engaged in the active practice of law in one or more states, territories, or the District of Columbia for five of the seven years immediately preceding the date upon which the motion is filed; and

(C)  have either:

1.  taken and passed the bar examination in a reciprocal jurisdiction, provided that the applicant is currently a member in good standing of said jurisdiction and authorized to practice law therein; or
2. 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 reciprocal jurisdictions, provided that the applicant was a member in good standing of said jurisdictions and authorized to practice law therein throughout the aforesaid five-year period and is currently a member in good standing of said jurisdictions and authorized to practice law therein; and

(D) establish that the applicant is currently a member in good standing in all jurisdictions where admitted; and

(E)  establish that the applicant is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any jurisdiction; and

(F)  designate the clerk of the New Hampshire Supreme Court as agent for service of process; and

(G)  file with the board the required motion form, a completed petition and questionnaire for admission, and supporting documents, accompanied by the motion fee. 

(2)  For purposes of this rule, “reciprocal jurisdiction” is defined as another state, territory, or the District of Columbia that allows admission without examination of persons admitted to practice law in New Hampshire under circumstances comparable to those set forth in this rule.  

(b) Vermont Applicant.  An applicant who is licensed to practice law in Vermont may, upon motion, be admitted to the bar without examination, provided that the State of Vermont allows admission without examination of persons admitted to practice law in New Hampshire under circumstances comparable to those set forth in this rule.  Such an applicant shall meet the Eligibility Requirements set forth in Rule 42(IV)(a), (V)(a), and (VI), and the following additional requirements.  The applicant shall:

(1)  be licensed to practice law in the State of Vermont and be an active member of the Vermont bar; and

(2) have been primarily engaged in the active practice of law in Vermont for no less than three years immediately preceding the date upon which the motion is filed; and

(3) establish that the applicant is currently a member in good standing in all jurisdictions where admitted; and

(4) establish that the applicant is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any jurisdiction; and

(5) have completed at least 900 minutes of continuing legal education on New Hampshire practice and procedure within one year immediately preceding the date upon which the motion is filed and be certified by the NHMCLE Board as satisfying this requirement; and

(6) designate the clerk of the New Hampshire Supreme Court as agent for service of process; and

(7)  file with the board the required motion form, a completed petition and questionnaire for admission, and supporting documents, accompanied by the motion fee.

     (c)  Maine Applicant.  An applicant who is licensed to practice law in Maine may, upon motion, be admitted to the bar without examination, provided that the State of Maine allows admission without examination of persons admitted to practice law in New Hampshire under circumstances comparable to those set forth in this rule.  Such an applicant shall meet the Eligibility Requirements set forth in Rule 42(IV)(a), (V), and (VI), and the following additional requirements.  The applicant shall:

(1) be licensed to practice law in the State of Maine and be an active member of the Maine bar;

(2) have been primarily engaged in the active practice of law in Maine for no less than three years immediately preceding the date upon which the motion is filed;

(3) establish that the applicant is currently a member in good standing in all jurisdictions where admitted;

(4) establish that the applicant is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any jurisdiction;

(5) have completed at least 900 minutes of continuing legal education on New Hampshire practice and procedure within one year immediately preceding the date upon which the motion is filed and be certified by the NHMCLE Board as satisfying this requirement; and

(6)  designate the clerk of the New Hampshire Supreme Court as agent for service of process; and

(7)  file with the board the required motion form, a completed petition and questionnaire for admission, and supporting documents, accompanied by the motion fee. 

(8)  Nothing in Rule 42(X)(c) shall preclude an attorney who is licensed to practice law in the State of Maine from applying under Rule 42(XI)(a) if the applicant meets the requirements of that section.  

 (d)  For the purposes of this rule, the “active practice of law” shall include the following activities:

(1) Representation of one or more clients in the private practice of law;

(2) Service as a lawyer with a local, state, or federal agency, including military service;

(3) Teaching law at a law school approved by the American Bar Association;

(4) Service as a judge in a federal, state, or local court of record;

(5) Service as a judicial law clerk; or

(6) Service as corporate counsel.  

 (e)  For the purposes of this rule, the “active practice of law” shall not include work that, as undertaken, constituted the unauthorized practice of law in the jurisdiction in which it was performed or in the jurisdiction in which the clients receiving the unauthorized services were located.  For the purposes of this rule, an applicant’s service as corporate counsel shall not constitute the unauthorized practice of law in New Hampshire provided that the applicant submits an affidavit certifying that:

(1)  while serving as counsel, the applicant performed legal services solely for a corporation, association or other business entity, including its subsidiaries and affiliates; and

(2)  while serving as counsel, the applicant received his or her entire compensation from said corporation, association or business entity; and

(3)  said corporation, association or business entity is not engaged in the practice of law or provision of legal services.  

(f)  An applicant who has failed the New Hampshire bar examination within five years of the date of filing a motion for admission without examination shall not be eligible for admission by motion.  An applicant who is not permitted to retake the New Hampshire bar examination pursuant to Rule 42(VIII)(c) shall not be eligible for admission by motion. An applicant who has resigned from the New Hampshire bar shall not be eligible for admission by motion, but may be eligible for readmission upon compliance with the requirements of Rule 37(15).   

(g)  The motion fee paid by an applicant under Rule 42(XI) shall be nonrefundable, provided, however, that if a motion for admission pursuant to Rule 42(XI) is denied prior to the commencement of the character and fitness investigation by the committee, then a portion of the fee may be refunded to the applicant, in the discretion of the board.

XII. Daniel Webster Scholar Honors Program

     (a) An applicant who has met the Eligibility Requirements set forth in Rule 42(IV)(a), (V), and (VI) who successfully completed the Daniel Webster Scholar Honors Program offered at the University of New Hampshire School of Law in Concord, New Hampshire, and who meets the following requirements may be admitted to the bar. The applicant shall:

(1) prior to admission, and within one year of the date upon which the application for admission is filed, have successfully completed, to the satisfaction of the board, the Daniel Webster Scholar Honors Program, after successfully completing taking and passing a variant of the New Hampshire bar examination to consist of rigorous, repeated and comprehensive evaluation of legal skills and abilities, the criteria for which will be established by this court, and which will amount to more than the twelve hours of testing required for the conventional bar examination.

(2)  establish that the applicant is currently a member in good standing in all jurisdictions where admitted, if any;

(3) establish that the applicant is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any jurisdiction; and

(4) designate the clerk of the supreme court for service of process.  

(b) An applicant seeking admission to the bar in accordance with this provision shall, by the deadline established by the board, file with the board an application for admission pursuant to New Hampshire Supreme Court Rule 42(XII), and the petition and questionnaire for admission, which shall contain a certificate signed by two persons certifying the applicant’s good moral character, and shall be executed under oath.  The board may waive the filing deadline requirement for good cause shown.  The application shall be accompanied by the application fee.  The fee shall be nonrefundable.

XIII.  Practical Skills Course Requirement  

(a)  Within two years of admission, each person admitted to practice law in New Hampshire must attend a practical skills course presented by the New Hampshire Bar Association, unless the admittee satisfies the requirements of paragraph (b) or, in exceptional instances, a longer period is approved in writing by the court.  A failure to comply with the requirements of this rule will result in the suspension of the attorney’s license.  The course will assist new admittees in developing basic lawyering skills and in gaining practical knowledge of New Hampshire practice and procedures. Attendance is required and each new admittee will be required to execute an affidavit stating that he or she has attended each session of the course unless otherwise excused by the supreme court, but no test will be required.  

(b)  If a new admittee leaves New Hampshire on military or other government service assignment for more than a brief period within two years after being admitted to the bar and before completing the practical skills course, the new admittee’s license shall not be suspended if he or she promptly so notifies the court in writing of his or her departure from the state and his or her intention to complete the course at a later date.  Such a new admittee shall be required to attend a practical skills course given within three years of the date of departure, and further provided that, if he or she shall have completed the assignment and returned to New Hampshire within the three-year period, the course taken shall be the first available course given after his or her return. The admittee shall notify the court promptly of his or her return within the three-year period. Upon written request in exceptional instances, the court may extend the three-year period following the date of departure within which the admittee must attend a practical skills course.  

(c)  Attendance at the practical skills course means, for all new admittees, personal attendance at all sessions of the course.  

(d) Exemptions from the practical skills course requirements, or any portion thereof, shall be granted only upon written application filed with the court, setting forth the exceptional circumstances believed to justify the requested exemption.  

(e) Reinstatement of a license suspended under this paragraph shall be only by order, upon petition to the court following completion of the practical skills course, and upon such conditions as the court deems appropriate.  If the petition to this court is filed more than one year after the date of the order suspending the person from the practice of law in this State, then the petition shall be 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 reinstatement upon such conditions as it deems appropriate. 

If the evidence of continuing competence and learning in the law is not satisfactory to the court, the court shall refer the motion for reinstatement to the board.  A subcommittee of the board 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 competence and learning in law required for reinstatement. At the conclusion of the hearing, the subcommittee shall promptly file with the court the record and a report containing its findings and recommendations.  The court shall consider the matter in the normal course and following the submission of briefs, if found necessary by the court, and any oral argument ordered by the court, shall enter a final order.

   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 board and with the clerk of the supreme court the petition and questionnaire for admission referred to in Supreme Court Rule 42(VI)(c). Further proceedings shall be governed by Rule 42(VI).

XIV.  Duty to Update Information  

An applicant for admission to the New Hampshire bar has a continuing obligation to update any information submitted as a part of the application process by providing the new information in writing to the Office of Bar Admissions. The duty to update information exists during the entire pendency of the application or motion for admission.  All persons admitted to the bar have a continuing obligation to notify the New Hampshire Bar Association immediately and in writing of all changes of residence address and address of principal office.

1.   Immunity  

(a) The board members, committee members, the administrator of the office of bar admissions, and their staff, counsel, investigators, proctors, agents, and members of any hearing panels, in performing their duties under this rule, are regarded as acting as officers of the court and shall be immune from civil liability for any conduct arising out of the performance of their duties. 

(b)  A person shall be immune from civil liability for all of his or her statements made in good faith to the board, committee, office of bar admissions, office of the attorney general, or the court, given in any investigation or proceedings pertaining to an application for admission. The protection of this immunity does not apply to statements made to others. 

Rule 42A. Non-payment Of Court Fees and Bar Dues by an Attorney or Foreign Legal Consultant.

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(I)  Bar Dues.

        (A) On or before September 15, following the renewal date of June 1, the New Hampshire Bar Association shall report to the court the names of attorneys admitted to the bar of this State who have not yet paid annual fees assessed by the court or the annual bar dues provided for in the Constitution and By-Laws of the New Hampshire Bar Association. The court shall require the attorneys reported to show cause why they should not be suspended from the practice of law in this State for non-payment of the court fees or bar dues. If the court determines that an attorney has not shown good cause for non-payment of court fees or bar dues, an order shall be issued suspending that attorney from the practice of law in this State.

(B) (1)  An attorney seeking reinstatement shall file a petition for reinstatement with the court following payment of all court fees and bar dues owed in accordance with the provisions of said Constitution and By-Laws. The petition for reinstatement shall be accompanied by the required filing fee. If the petition to this court is filed more than one year after the date of the order suspending the attorney from the practice of law in this State, the petition shall be 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 reinstatement upon such conditions as it deems appropriate. 

     (2) If the evidence of continuing competence and learning in the law is not satisfactory to the court, the court shall refer the petition for reinstatement to the professional conduct committee for review. The professional conduct committee shall review the petition and conduct such proceedings as it deems necessary to make a recommendation to the court as to whether the petition should be granted. The professional conduct committee shall file its 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.

     (3) If the evidence of continuing moral character and fitness is not satisfactory to the court, the court shall order the attorney 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(VI)(c). Further proceedings shall be governed by Rule 42.

(II) Foreign Legal Consultant Annual Fees.   

(A) On or before September 15, following the renewal date of June 1, the New Hampshire Bar Association shall report to the court the names of foreign legal consultants licensed to practice in New Hampshire who have not yet paid the annual fee required by Rule 42D(7). The court shall require the foreign legal consultants reported to show cause why their licenses to practice as foreign legal consultants should not be suspended. If the court determines that a foreign legal consultant has not shown good cause for non-payment of the annual fee, an order shall be issued suspending the license of the foreign legal consultant.

(B)(1) A foreign legal consultant seeking reinstatement shall file a petition for reinstatement with the court following payment of all court fees owed. The petition for reinstatement shall be accompanied by the required filing fee.

If the petition to this court is filed more than one year after the date of the order suspending the foreign legal consultant, the petition shall be accompanied by evidence that the foreign legal consultant continues to meet the eligibility requirements for licensure set forth in Rule 42D(1). If the evidence that the foreign legal consultant continues to meet the eligibility requirements for licensure is satisfactory to the court, the court may order reinstatement upon such conditions as it deems appropriate.

(2) If the evidence that the suspended foreign legal consultant continues to meet the eligibility requirements of Rule 42D(1)(a), (b) or (d) is not satisfactory to the court, the court shall refer the petition for reinstatement to the professional conduct committee for review. The professional conduct committee shall review the petition and conduct such proceedings as it deems necessary to make a recommendation to the court as to whether the petition should be granted. The professional conduct committee shall file its recommendation 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.

(3) If the evidence that the suspended foreign legal consultant continues to meet the requirements of Rule 42D(1)(c) is not satisfactory to the court, the court shall order the foreign legal consultant 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(VI)(c). Further proceedings shall be governed by Rule 42.

Rule 42B. Character and Fitness Standards.

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(I)  Admission a privilege, not a right.

The right to practice law is not one of the inherent rights of every citizen, as is the right to carry on an ordinary trade or business.  It is a privilege granted only to those who demonstrate good moral character and fitness to pratice law.

(II)  Requirement to establish character and fitness.

All persons who desire to be admitted to practice law shall be required to establish their moral character and fitness to the satisfaction of the Standing Committee on Character and Fitness of the Supreme Court of New Hampshire in advance of such admission.

(III)  Burden of proof on the applicant.

       Any person who seeks admission to practice law in the State of New Hampshire shall at all times have the burden of proving his or her good moral character and fitness before the Committee on Character and Fitness and the Supreme Court of New Hampshire. This burden requires both the production of evidence and the persuasion of the Committee and Court as to the applicant’s good moral character and fitness.

(IV)  Proof by clear and convincing evidence.

       The applicant must prove his or her good moral character and fitness by clear and convincing evidence.

(V)  Doubts resolved in favor of protecting the public.

     Any doubt concerning an applicant’s character and fitness shall be resolved in favor of protecting the public by denying admission to the applicant.

(VI)  Positive Characteristics To Be Considered.

     The Committee will consider the following positive characteristics in evaluating an applicant’s character and fitness to practice law:

          (1)  The ability to reason, recall complex factual information and integrate that information with complex legal theories;

        (2)  The ability to communicate with clients, attorneys, courts, and others with a high degree of organization and clarity;

        (3)  The ability to use good judgment on behalf of clients and in conducting one’s professional business;

        (4)  The ability to avoid acts which exhibit disregard for the rights or welfare of others;

        (5)  The ability to act diligently and reliably in fulfilling one’s obligations to clients, attorneys, courts, and others;

        (6)  The ability to use good judgment in financial dealings on behalf of oneself, clients, and others; and

        (7)  The ability to comply with deadlines and time constraints.

(VII)  Grounds to deny admission.

       Any of the following may be grounds for the Committee to recommend denial of admission for lack of character or fitness:

        (1) Failure to possess sufficient positive characteristics set forth in section (VI) above.

        (2) Acts Involving Dishonesty, Fraud, Deceit or Misrepresentation.

Character and Fitness Committee Comment

“In order to maintain public confidence in the bar and trust among members of the bar, attorneys must be honest in their dealings.”  Application of T.J.S., 141 N.H. 697, 702 (1997).  An applicant’s record of conduct should demonstrate the honesty which future clients, adversaries, courts and others have a right to expect of a lawyer.

      The committee may consider such acts regardless of whether the applicant has been charged with and/or convicted of a crime as result of such an act and regardless of whether the act was committed in the applicant’s personal life or in the course of an occupation or employment.

(3) False or Misleading Statements or Omissions in the Application Process.

Character and Fitness Committee Comment

    Much of the information that the Committee uses in assessing an applicant’s character and fitness is contained in the Petition and Questionnaire for Admission to the Bar of New Hampshire.  The information in the Petition and Questionnaire is also one of the sources of information used for requesting further information from the applicant and in conducting further investigation.  As such, it is crucial that applicants be absolutely candid, honest and complete in disclosing the information requested in the form or in response to further inquiries by the Committee.

(4)  Lack of Candor in Dealing with the Committee or Staff.

Character and Fitness Committee Comment

 As with false and misleading statements or omissions during the application process, the failure of an applicant to deal with the Committee or its staff in a candid and forthright manner may result in recommendation of denial of admission.

(5)  Failure to Cooperate with or to Provide Information to the Committee or its Staff.

Character and Fitness Committee Comment

 Because the burden of proving good moral character and fitness is on the applicant, the Committee and its staff often require applicants to provide further information and/or documentation concerning matters of concern to them.  Failure to provide such information and/or to cooperate with the Committee and its staff in their efforts to fully investigate matters may make it impossible for the Committee to complete its task of assessing the applicant’s character and fitness and may thereby result in a recommendation to deny admission.

(6)  Criminal Acts.

Character and Fitness Committee Comment

Conduct which is criminal in nature which the Committee finds to have occurred may be grounds for recommending denial of admission whether or not the conduct results in a prosecution and conviction and even though the arrest and/or conviction for the conduct have been annulled.

(7)  Other Unlawful Conduct which Demonstrates a Disrespect for or Unwillingness to Obey the Law.

Character and Fitness Committee Comment

The New Hampshire Supreme Court in Application of Appell, 116 N.H. 400 (1976), denied admission to an applicant and upheld the findings of a single justice who had determined that the applicant’s “violations of various statutes and regulations indicate at best a careless failure to determine the legality of his actions and at worst an arrogant disregard of the law.”  Thus, when the Committee finds that an applicant has committed acts, that are not criminal, but that are unlawful and demonstrate disrespect for the law, the Committee may determine that the applicant does not possess the necessary moral character for admission to the bar. 

(8)  Violation of a Court Order.

Character and Fitness Committee Comment

Respect for judicial authority and obedience of court orders and directives are crucial to the operation of the judicial system.  Violations of court orders and/or directives, either in the applicant’s professional or personal life, may be grounds for a recommendation of the denial of admission.

(9)  Abuse of the Judicial Process.

Character and Fitness Committee Comment

Applicants are asked to disclose on their applications all judicial and administrative proceedings to which they have been a party.  The Committee quite often requests applicants to provide detailed information concerning those proceedings.  Applicants who abuse the judicial process in either their personal affairs or in professional matters may be deemed to put the public at risk of continuing such behavior if they are admitted. The Committee may consider abuse of the judicial process regardless of whether a court has made a judicial determination that abuse has occurred, and regardless of whether a court has imposed sanctions for the abuse.

(10)  Academic Misconduct – Plagiarism and Cheating.

Character and Fitness Committee Comment

As part of the approval process, the Committee requests law school deans to complete a questionnaire concerning each applicant.  The Committee also requires applicants to disclose whether they have been dropped, suspended, placed on probation, expelled or requested to resign from any school, college, university or law school, or requested or advised by any such school or institution to discontinue their studies therein.  If plagiarism and/or cheating are disclosed, the Committee conducts a further inquiry to determine the seriousness of the matter.

(11)  Financial Irresponsibility.

Character and Fitness Committee Comment

An applicant must demonstrate that he/she is acting responsibly with respect to his or her financial obligations.  Being in debt or unable to stay current with debts is not in itself disqualifying.  However, the Committee expects an applicant with debt to keep each creditor informed of a current address, to make payment when the applicant is able to, and when unable to pay debts, to make reasonable efforts to work out settlements and/or repayment plans.

        A declaration of bankruptcy is not a ground for recommending denial of admission.  However, bankruptcy petitions are generally scrutinized by the Committee.  Any false statements, admissions or acts involving dishonesty, fraud, deceit or misrepresentation in connection with the filing of bankruptcy may be grounds for a recommendation of denial of admission.  Further, the facts and circumstances surrounding a bankruptcy may also bear on the issue of whether the applicant is able to handle his or her affairs.

(12)  Mental Disorders which Impair the Ability to Practice Law.

Character and Fitness Committee Comment

An existing or recent mental disorder that impairs an applicant’s current ability to practice law may be disqualifying.  Should the Committee become aware of an existing or recent mental disorder which has the potential to impair an applicant’s current ability to practice law, it will ask for details of any treatment, and may ask treating or independent professionals for reports as to whether the disorder will impair the applicant’s ability to practice law in a competent and professional manner.

(13)  Alcohol or Drug Addiction or Abuse.

Character and Fitness Committee Comment

An applicant who has become addicted to alcohol or other drugs or is using illegal drugs, will not be approved by the Committee if he/she is still currently using the substance or if the Committee believes that there is an undue risk that the applicant will begin using the substance after admission to the bar.  Applicants who have been addicted to alcohol or other drugs are expected to demonstrate a meaningful period of non-use and to have developed support and/or coping mechanisms, either external or internal, which make it unlikely that the applicant will again use the addictive substance.

          Applicants who have been addicted to or abused alcohol or drugs are generally expected to be free of alcohol use or drug abuse for at least 1 year in order to be approved.

(14)  Inability to Handle One’s Own Affairs.

Character and Fitness Committee Comment

The practice of law often involves being entrusted with the affairs of clients.  The inability of an applicant to handle his/her own affairs in a responsible manner may be grounds for finding that such an applicant does not possess the requisite fitness to engage in the practice of law.

(VIII)  Causes for further inquiry.

       In addition to any of the above, any of the following are cause for further inquiry (but not in themselves disqualifying) before the Character and Fitness Committee decides whether the applicant possesses the character and fitness to practice law:

          (1)  Denial of admission to the bar in another jurisdiction on character and fitness grounds;

          (2)  Disciplinary action by a lawyer disciplinary agency or other professional disciplinary agencies of any jurisdiction;

          (3)  Employment termination due to alleged misconduct;

          (4)  Receipt of negative references;

          (5)  Complaints of domestic violence against the applicant;

          (6)  Other than honorable military discharge;

          (7)  Bankruptcy;

          (8)  Debt obligations in default.

(IX)  Determination of disqualification.

     The Character and Fitness Committee must first determine whether any conduct or condition of the applicant is disqualifying.

(X)  When misconduct or condition is disqualifying.

     The misconduct or condition is disqualifying when it is so serious or significant that denying admission is necessary to protect the public and maintain public confidence in the bar.

Character and Fitness Committee Comment

In the character and fitness review process, the need to protect the public and maintain public confidence in the bar always overrides any concern that denying admission to an applicant who has successfully completed law school and passed the bar examination may seem unfair.

(XI)  Cumulative effect of events of misconduct.

     The Committee may find the cumulative effect of two or more events of misconduct disqualifying even though no one of the events alone would be disqualifying.

(XII)  Determination of current character and fitness.

     If the Character and Fitness Committee finds any conduct or condition to be disqualifying, it must then determine whether the current character and fitness of the applicant qualifies the applicant for admission.  It is the Committee’s task to determine whether the applicant is sufficiently rehabilitated to remove the serious taint of the applicant’s prior unfitness.

(XIII)  Factors considered in assessing adequacy of rehabilitation.

     The following factors, although not inclusive, may be considered when determining whether an applicant has demonstrated sufficient rehabilitation:

        (1)  The nature of the act of misconduct, including whether it involved moral turpitude, whether there were aggravating or mitigating circumstances, and whether the activity was an isolated event or part of a pattern.

        (2)  The age and education of the applicant at the time of the act of misconduct and the age and education of the applicant at the present time.

(3)  The length of time that has passed between the act of misconduct and the present, absent any involvement in further acts of misconduct.  The amount of time and the extent of rehabilitation will be dependent upon the nature and seriousness of the act of misconduct under consideration.

(4)  Restitution to any person who has suffered monetary losses through related acts or omissions of the applicant.

(5)  Expungement of a conviction.

(6)  Successful completion or early discharge from probation or parole.

(7)  Abstinence from the use of controlled substances or alcohol if the specific act of misconduct was attributable in part to the use of a controlled substance or alcohol.  Proof of abstinence may include, but is not necessarily limited to, enrollment in and compliance with a self-help or professional treatment program.

(8)  Evidence of remission if the specific act of misconduct was attributable in part to a medically recognized mental disease, disorder or illness.  Evidence of remission may include, but is not limited to, seeking professional assistance and complying with the treatment program prescribed by the professional and submission of letters from the psychiatrist/psychologist verifying that the medically recognized mental disease, disorder or illness is in remission.

(9)  Payment of the fine imposed in connection with any criminal conviction.

(10)  Correction of behavior responsible in some degree for the act of misconduct.

(11)  Completion of, or sustained enrollment in, formal education or vocational training courses for economic self-improvement.

(12)  Significant and conscientious involvement in community, church or privately-sponsored programs designed to provide social benefits or to ameliorate social problems.

(13)  Change in attitude from that which existed at the time of the act of misconduct in question as evidenced by any or all of the following:

     (a) Statements of the applicant.

     (b)  Statements from family members, friends, or other persons familiar with the applicant’s previous conduct and with subsequent attitudes and behavioral patterns.

     (c)  Statements from probation or parole officers or law enforcement officials as to the applicant’s social adjustments.

     (d)  Statements from persons competent to testify with regard to neuropsychiatric or emotional disturbances.

(XIV)  Degree of rehabilitation.

    The more serious the misconduct, the greater the showing of rehabilitation that will be required.

Character and Fitness Committee Comment

For applicants who have committed a criminal offense that would disqualify them from holding a license or certificate to practice another profession in this state, the burden of proving sufficient rehabilitation is extraordinarily difficult.

(XV)  Period of time of rehabilitation.

    An applicant who has engaged in disqualifying misconduct in the past must demonstrate to the committee that the applicant has made relevant and significant personal change for a meaningful period of time.

(XVI)  Recognition of disqualifying conduct.

     Establishing sufficient rehabilitation will usually require the applicant to recognize, appreciate, show insight into, and have genuine remorse for the seriousness of his or her disqualifying conduct.  Attempts to deny, rationalize, minimize or explain away disqualifying past behavior will usually result in the Committee finding insufficient rehabilitation.

(XVII)  When is rehabilitation sufficient.

    Rehabilitation is sufficient when the applicant has established from all the facts that the public interest will not be jeopardized by his or her admission.

Rule 42C. Temporary Practice by Foreign Lawyers.

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(a) A lawyer who is admitted only in a non-United States jurisdiction shall not, except as authorized by this Rule or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law, or hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. Such a lawyer does not engage in the unauthorized practice of law in this jurisdiction when on a temporary basis the lawyer performs services in this jurisdiction that:

        (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

        (2) are in or reasonably related to a pending or potential proceeding before a tribunal held or to be held in a jurisdiction outside the United States if the lawyer, or a person the lawyer is assisting, is authorized by law or by order of the tribunal to appear in such proceeding or reasonably expects to be so authorized;

        (3) are in or reasonably related to a pending or potential arbitration, mediation or other alternative dispute resolution proceeding held or to be held in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice;

        (4) are not within paragraphs (2) or (3) and

             (i) are performed for a client who resides or has an office in a jurisdiction in which the lawyer is authorized to practice to the extent of that authorization; or

             (ii) arise out of or are reasonably related to a matter that has a substantial connection to a jurisdiction in which the lawyer is authorized to practice to the extent of that authorization; or

        (5) are governed primarily by international law or the law of a non-United States jurisdiction.

  (b) For purposes of this grant of authority, the lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent and subject to effective regulation and discipline by a duly constituted professional body or a public authority.

Rule 42D. Licensing and Practice of Foreign Legal Consultants.

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(1) General Regulation as to Licensing

In its discretion, the supreme court may license to practice in this United States jurisdiction as a foreign legal consultant, without examination, an applicant who:

    (a) is, and for at least five years has been, a member in good standing of a recognized legal profession in a foreign country, the members of which are admitted to practice as lawyers or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a public authority;

    (b) for at least five of the seven years immediately preceding his or her application, has been a member in good standing of such legal profession and has been lawfully engaged in the practice of law in the foreign country or elsewhere substantially involving or relating to the rendering of advice or the provision of legal services concerning the law of the foreign country;

    (c) possesses the good moral character and general fitness requisite for a member of the bar of this State, as required by Rule 42(VI); and

    (d) intends to practice as a foreign legal consultant in this jurisdiction and to maintain an office in this jurisdiction for that purpose.

(2) Application

An applicant under this Rule shall file an application for a foreign legal consultant license, which shall include all of the following:

   (a) a certificate from the professional body or public authority having final jurisdiction over professional discipline in the foreign country in which the applicant is admitted, certifying the applicant’s admission to practice, date of admission, and good standing as a lawyer or counselor at law or the equivalent;

   (b) a letter of recommendation from one of the members of the executive body of such professional body or public authority or from one of the judges of the highest law court or court of original jurisdiction in the foreign country in which the applicant is admitted;

   (c) duly authenticated English translations of the certificate required by Section 2(a) of this Rule and the letter required by Section 2(b) of this Rule if they are not in English;

   (d) other evidence as the supreme court may require regarding the applicant’s educational and professional qualifications, good moral character and general fitness, and compliance with the requirements of Section 1 of this Rule;

   (e) an application fee, which shall be equal to the fee established by the New Hampshire Board of Bar Examiners for motions for admission without examination.

(3) Scope of Practice

A person licensed to practice as a foreign legal consultant under this Rule may render legal services in this jurisdiction but shall not be considered admitted to practice law in this jurisdiction, or in any way hold himself or herself out as a member of the bar of this jurisdiction, or do any of the following:

   (a) appear as a lawyer on behalf of another person in any court, or before any magistrate or other judicial officer, in this jurisdiction (except when admitted pro hac vice pursuant to applicable court rule);

   (b) prepare any instrument effecting the transfer or registration of title to real estate located in the United States of America;

   (c) prepare:

        (i) any will or trust instrument effecting the disposition on death of any property located in and owned by a resident of the United States of America, or

        (ii) any instrument relating to the administration of a decedent’s estate in the United States of America;

   (d) prepare any instrument in respect of the marital or parental relations, rights or duties of a resident of the United States of America, or the custody or care of the children of such a resident;

   (e) render professional legal advice on the law of this State or of the United States of America (whether rendered incident to the preparation of legal instruments or otherwise) except on the basis of advice from a person duly qualified and entitled (other than by virtue of having been licensed under this Rule) to render professional legal advice in this jurisdiction;

   (f) carry on a practice under, or utilize in connection with such practice, any name, title, or designation other than one or more of the following:

        (i) the foreign legal consultant’s own name;

        (ii) the name of the law firm with which the foreign legal consultant is affiliated;

        (iii) the foreign legal consultant’s authorized title in the foreign country of his or her admission to practice, which may be used in conjunction with the name of that country; and

        (iv) the title “foreign legal consultant,” which may be used in conjunction with the words “admitted to the practice of law in [name of the foreign country of his or her admission to practice]”.

  (g) render legal services in this State pursuant to Supreme Court Rule 42C (Temporary Practice by Foreign Lawyers).

(4) Practice by a Foreign Legal Consultant Licensed in Another United States Jurisdiction

A person licensed as a foreign legal consultant in another United States jurisdiction may provide legal services in this State on a temporary basis pursuant to Supreme Court Rule 42C (Temporary Practice by Foreign Lawyers).  A person licensed as a foreign legal consultant in another United States jurisdiction shall not establish an office or otherwise engage in a systematic and continuous practice in this jurisdiction or hold out to the public or otherwise represent that the foreign legal consultant is licensed as a foreign legal consultant in this jurisdiction.

(5) Rights and Obligations

Subject to the limitations listed in Section 3 of this Rule, a person licensed under this Rule shall be considered a foreign legal consultant affiliated with the bar of this State and shall be entitled and subject to:

   (a) the rights and obligations set forth in the New Hampshire Rules of Professional Conduct or arising from the other conditions and requirements that apply to a member of the bar of this jurisdiction under the supreme court rules governing members of the bar, including the obligation to comply with the requirements of an active member of the New Hampshire Bar Association to file an annual trust accounting certificate as set forth in Supreme Court Rule 50-A; provided, however, that a person licensed as a legal consultant under this Rule shall not be required to comply with the minimum continuing legal education requirements of an active member of the New Hampshire Bar Association as specified in Supreme Court Rule 53.1; and

   (b) the rights and obligations of a member of the bar of this jurisdiction with respect to:

        (i) affiliation in the same law firm with one or more members of the bar of this jurisdiction, including by:     

            (A) employing one or more members of the bar of this jurisdiction;

            (B) being employed by one or more members of the bar of this jurisdiction or by any partnership or professional corporation that includes members of the bar of this jurisdiction or that maintains an office in this jurisdiction; and

            (C) being a partner in any partnership or shareholder in any professional corporation that includes members of the bar of this jurisdiction or that maintains an office in this jurisdiction; and

        (ii) attorney-client privilege, work-product privilege, and similar professional privileges.

   (c) All persons licensed as foreign legal consultants shall notify the New Hampshire Bar Association immediately in writing of all changes of residence address and of all changes of address of office in this State.

(6) Discipline

A person licensed to practice as a foreign legal consultant under this Rule shall be subject to professional discipline in the same manner and to the same extent as members of the bar of this jurisdiction.  To this end:

   (a) Every person licensed to practice as a legal consultant under this Rule: 

        (i) shall be subject to the jurisdiction of the supreme court and to censure, suspension, removal, or revocation of his or her license to practice by the supreme court and/or the attorney discipline system, and shall otherwise be governed by Supreme Court Rules 37 and 37A; and

        (ii) shall execute and file with the supreme court, in the form and manner as the court may prescribe:

            (A) a commitment to observe the New Hampshire Rules of Professional Conduct and the supreme court rules governing members of the bar to the extent applicable to the legal services authorized under Section 3 of this Rule;

            (B) a written undertaking to notify the supreme court of any change in the foreign legal consultant’s good standing as a member of the foreign legal profession referred to in Section 1(a) of this Rule and of any final action of the professional body or public authority referred to in Section 2(a) of this Rule imposing any disciplinary censure, suspension, or other sanction upon the foreign legal consultant; and

            (C) a duly acknowledged instrument in writing, providing the foreign legal consultant’s address in this State and designating the clerk of the supreme court as his or her agent for service of process. The foreign legal consultant shall keep the New Hampshire Bar Association advised in writing of any changes of address in this State.  In any action or proceeding brought against the foreign legal consultant and arising out of or based upon any legal services rendered or offered to be rendered by the foreign legal consultant within or to residents of this State, service shall first be attempted upon the foreign legal consultant at the most recent address filed with the New Hampshire Bar Association.  Whenever after due diligence service cannot be made upon the foreign legal consultant at that address, service may be made upon the clerk.  Service made upon the clerk in accordance with this provision is effective as if service had been made personally upon the foreign legal consultant.

   (b) Service of process on the clerk under Section 6(a)(ii)(C) of this Rule shall be made by personally delivering to the clerk’s office, and leaving with the clerk or with a deputy or assistant authorized by the clerk to receive service, duplicate copies of the process together with a fee of $10.00.  The clerk shall promptly send one copy of the process to the foreign legal consultant to whom the process is directed, by certified mail, return receipt requested, addressed to the foreign legal consultant at the most recent address provided to the New Hampshire Bar Association in accordance with Section 6(a)(ii)(C).

(7) Annual Fee

A person licensed as a foreign legal consultant shall pay an annual fee equal to the fees, bar dues, and assessments, including assessments for the public protection fund, as are required of an active member of the New Hampshire Bar Association by the Constitution and By-Laws of the New Hampshire Bar Association or Supreme Court Rule, other than any fees related to Rule 53 (continuing legal education requirements).

(8) Revocation of License

If the supreme court determines that a person licensed as a foreign legal consultant under this Rule no longer meets the requirements for licensure set forth in Section 1(a) or Section 1(b) of this Rule, it shall revoke the foreign legal consultant’s license.

(9) Admission to Bar

If a person licensed as a foreign legal consultant under this Rule is subsequently admitted as a member of the bar of this jurisdiction under the Rules governing admission, that person’s foreign legal consultant license shall be deemed superseded by the license to practice law as a member of the bar of this jurisdiction.

(10) Application for Waiver of Provisions

The supreme court, upon written application, may waive any provision or vary the application of this Rule where strict compliance will cause undue hardship to the applicant.  An application for waiver shall be in the form of a verified petition setting forth the applicant’s name, age, and residence address; the facts relied upon; and a prayer for relief.

Rule 42E. Attorney’s Oaths; Duty to Update Information

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(a)  Administration of Attorney’s Oath.

Every attorney admitted to practice in New Hampshire shall take and subscribe an oath to support the constitutions of New Hampshire and of the United States, and the oath of office set forth in RSA 311:6. The oaths shall be taken and subscribed in the following manner:

(1)  A person being admitted to the bar after having taken and passed the New Hampshire bar examination pursuant to Rule 42 (VII), or having successfully completed the Daniel Webster Scholar Honors Program pursuant to Rule 42 (XII), shall take and subscribe the oaths in a court proceeding presided over by the Supreme Court.

(2)  A person being admitted upon motion without examination pursuant to Rule 42 (XI) or upon motion by transferred UBE score pursuant to Rule 42 (X), shall take and subscribe the oaths in a court proceeding presided over by the Supreme Court, a single justice of the court, or the clerk or deputy clerk of the court.

(b)  Time Limitation.

  Unless the Board of Bar Examiners (board) grants a request for an extension for good cause, a person who has applied for admission to the bar and who has been notified by the board that he or she has satisfied the requirements for admission set forth in Rule 42 (IV)(a), must take the oaths of admission within two years of being so notified. A person who fails to take the oath of admission within two years of being notified by the board that he or she has satisfied the requirements for admission, shall be required to reapply for admission, and shall be required to retake and pass the bar examination, submit a motion for admission without examination, or submit a motion for admission by transferred UBE score, whichever is appropriate in the circumstances. In addition, any such person shall be required to establish his or her current good moral character and fitness to the satisfaction of the Character and Fitness Committee and the Supreme Court.

(c)  Duty to Provide Updated Information.

  Every attorney admitted to practice in New Hampshire shall have a continuing obligation to promptly notify the New Hampshire Bar Association in writing of any changes in his or her office address, residential address, office telephone number, and email address used for the practice of law. Notices sent by the court to an address provided by an attorney to the New Hampshire Bar Association shall be deemed to be sufficient notice to the attorney of court action.

Rule 43. State-Federal Judicial Council.

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In the interest of improving the administration of justice, the Supreme Court of New Hampshire, RSA 490:4 (Supp. 1977), through its chief justice, shall participate in the State-Federal Judicial Council for New Hampshire, consisting of the chief justice of the supreme court; the chief justice of the superior court or an associate justice designated by the chief justice of the superior court; a judge of the United States Court of Appeals for the First Circuit, and a judge of the United States District Court for the District of New Hampshire, both designated by the chief judge of said United States Court of Appeals.

In accordance with the recommendation of the Chief Justice of the United States, Burger, The State of the Judiciary – 1970, 56 A.B.A.J. 929, 933 (1970), the council shall seek to analyze, improve, and harmonize the relations of the several courts represented in the council, and investigate and consider their joint problems; and in its discretion shall encourage and propose appropriate action with respect thereto, to the end that the judicial process may be expedited, simplified and improved and that the integrity of the judicial system may be maintained.

Rule 44. Prior Or Inconsistent Rules.

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Rules of other courts inconsistent with these rules are suspended.

The prior rules of the supreme court are hereby repealed.

Rule 45. Continuing Judicial Education.

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(1) Continuing judicial training and education is essential to maintain public confidence in the judiciary and the highest level of professional standards.

     Accordingly, at a minimum, the judges, masters and clerks of our respective courts and the Director of the Administrative Office of the Courts shall be required to attend continuing judicial education programs, subject to the availability of funds, as follows:

         (a) Justices of the Supreme Court shall attend at least one Appellate Judges Seminar or similar program at least once a year.

         (b) Justice(s) of the Superior Court shall attend a judicial orientation and training program as determined by the Chief Justice of the Superior Court within two years of their appointment and shall attend at least one in-state, regional, or national educational program approved by the Chief Justice of the Superior Court every year thereafter. All superior court clerks shall attend at least one in-state, regional, or national court-related educational program approved by the Chief Justice of the Superior Court each year.  The Chief Justice of the Superior Court shall coordinate all educational activities within the Superior Court with the New Hampshire Judicial Branch Educational Committee.  

        (c) All circuit court judges and marital masters shall attend a judicial orientation and training program as determined by the Administrative Judge of the Circuit Court within two years of their appointment and shall attend at least one in-state, regional, or national educational program approved by the Administrative Judge of the Circuit Court every year thereafter. All circuit court clerks shall attend at least one in-state, regional, or national court-related educational program approved by the Administrative Judge of the Circuit Court each year. The Administrative Judge of the Circuit Court shall coordinate all educational activities within the Circuit Court with the New Hampshire Judicial Branch Educational Committee.

        (d)  The Director of the Administrative Office of the Courts shall attend at least one in-state, regional, or national educational program approved by the Chief Justice of the Supreme Court each year.

        (e) Exceptions to this rule for good cause shown may be approved by the Supreme Court.

Rule 46. Law Clerk Code Of Conduct.

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Rule 46. Law Clerk Code Of Conduct.

Canon 1. A law clerk should uphold the integrity and independence of the judiciary

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An independent and honorable judiciary is indispensable to justice in our society. A law clerk should participate in establishing, maintaining and enforcing, and should observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2. A law clerk should avoid impropriety and the appearance of impropriety in all of the law clerk’s activities

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1. A law clerk should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
2. A law clerk should not allow family, social, or other relationships to influence the law clerk’s judicially related conduct or judgment. A law clerk should not lend the prestige of the office to advance the private interest of others; nor should a law clerk convey or permit others to convey the impression that they are in a special position to influence the law clerk.
3. Law clerks must avoid talking with attorneys about cases before the court. A law clerk must never communicate to the attorneys on a pending case the law clerk’s opinion or attitude toward the issues pending before the judge. Moreover, once the decision is announced or opinion issued, the law clerk must avoid comment on it or disclosure of the extent of his or her involvement with it. However, this rule does not prevent a law clerk from providing as a writing sample to prospective employers copies of an opinion or order issued by the court in which the law clerk serves or had served, provided the law clerk performed substantial drafting and researching work in connection with the opinion or order, and provided further that the authoring judge gives his or her permission for such use.  This rule also does not prevent a law clerk from providing as a writing sample to prospective employers memoranda of law addressing legal issues prepared for the judge for whom the law clerk is employed, provided the judge gives his or her permission for such use. If engaged in conversation by an attorney about a pending matter, the law clerk should strive to terminate the conversation as quickly as politely possible. The law clerk should avoid even informal contact with attorneys with respect to a matter pending before the Court.

A law clerk must not give advice to attorneys on matters of substantive or procedural law, and must not do minor research tasks for attorneys.

Law clerks should be particularly careful to see that all attorneys are treated equally and not be tempted to provide a special favor for a law school colleague or an old friend.

Canon 3. A law clerk should perform the duties of the office impartially and diligently

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The duties of a law clerk take precedence over all of the law clerk’s other activities. In the performance of these duties, the following standards apply:

1. Adjudicative Responsibilities.

    (1) A law clerk should be faithful to the law and maintain professional competence in it. A law clerk should be unswayed by partisan interests, public clamor, or fear of criticism.

    (2) A law clerk should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others with whom the law clerk deals in the law clerk’s official capacity.

    (3) All persons who are legally interested in a proceeding, or their lawyers have, full right to be heard according to law; but, except as authorized by law, a law clerk should neither initiate nor consider ex parte or other communications with such persons concerning a pending or impending proceeding.

1. Administrative Responsibilities.

    (1) A law clerk should diligently discharge the law clerk’s administrative responsibilities and maintain professional competence in judicial administration. Each law clerk must read and be familiar with both the N.H. Rules of Professional Conduct and the N.H. Code of Judicial Conduct.

    (2) Two important duties owed by the law clerk to the judge are loyalty and confidentiality. The law clerk enjoys a unique relationship with a judge that combines the best of employer-employee, teacher-student and lawyer-lawyer. While the law clerk must be aware of the proper respect due a judge, the law clerk should not fear expressing a contrary opinion when personal opinions are asked. The law clerk is always an assistant to the judge, who has the ultimate authority and responsibility in deciding a case. Without sacrificing intellectual honesty, the law clerk must accept the decision of the judge as if it were the law clerk’s own.

    The law clerk owes the judge the duty of confidentiality concerning everything that occurs in the process of decision-making and all statements or events that do not occur in open court or in open conference with attorneys present. This duty extends beyond the term of clerkship; and, after leaving the service of a court, the law clerk must use extreme caution in public or private comments about a judge or the court so as not to cause a loss of confidence in the judicial process or system. The law clerk should not reveal the process that the court employed in arriving at a particular decision or court policy that is not readily apparent from the decision or policy itself.

1. Disqualification.

    (1) A law clerk should disclose the basis of any possible disqualification in a proceeding in which the law clerk’s impartiality might reasonably be questioned to the judge the law clerk serves. If, based on such disclosure, the judge agrees that the law clerk’s impartiality cannot reasonably be questioned, the law clerk may participate in the case. Without limiting the obligation to these instances, the law clerk should make this disclosure in any instance where, with respect to a proceeding:

        (a) the law clerk has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

        (b) the law clerk served as lawyer in the matter in controversy, or a lawyer with whom the law clerk previously practiced law served during that association as a lawyer concerning the matter, or the law clerk or that lawyer has been a material witness concerning it;

        (c) the law clerk knows that he or she, individually or as a fiduciary, or the law clerk’s spouse or minor child residing in the law clerk’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

        (d) the law clerk or the law clerk’s spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person:

            (i) is a party to the proceeding or an officer, director or trustee of a party;

            (ii) is acting as a lawyer in the proceeding;

            (iii) is known by the law clerk to have an interest that could be substantially affected by the outcome of the proceeding;

            (iv) is to the law clerk’s knowledge likely to be a material witness in the proceeding.

    (2) A law clerk should keep informed about the law clerk’s personal and fiduciary financial interests, and should make a reasonable effort to keep informed about the personal financial interests of the law clerk’s spouse and minor children residing in the law clerk’s household.

    (3) For the purposes of this section:

        (a) the degree of relationship is calculated according to the civil law system;

        (b) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;

        (c) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:

            (i) ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the law clerk participates in the management of the fund;

            (ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;

            (iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

            (iv) ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

    (4) During the course of a clerkship, each law clerk will no doubt be looking for employment to follow the year with the court. To avoid embarrassment to interested parties, as well as potential conflicts of interest, the following guidelines apply:

        (a) When interviewing, the law clerk must carefully avoid even the most indirect discussion of cases pending before the court.

        (b) The law clerk need not be recused from participation in a case involving a law firm to which an inquiry for employment is pending. If serious or active negotiations are underway, however, the law clerk should so inform the judge, and volunteer to withdraw from the case.

        (c) After the termination of the clerkship, the law clerk must maintain the confidentiality of the court. Discussions of a particular judge or case should be avoided. The former law clerk must also avoid conflicts of interest by not working on cases that the law clerk participated in during the clerkship. 

Canon 4. A law clerk may engage in activities to improve the law, the legal system, and the administration of justice

A law clerk may engage in law-related activities if in doing so the law clerk does not cast doubt on the law clerk’s capacity to participate fully and impartially in performing the law clerk’s assigned duties.

https://www.courts.nh.gov/rules-supreme-court-state-new-hampshire – From NH Supreme Court January 2023