2004 Summer, 20. New Hampshire Bar Association Ethics Committee Proposed Revisions to N.H. Rules of Professional Conduct.

New Hampshire Bar Journal


2004 Summer, 20.

New Hampshire Bar Association Ethics Committee Proposed Revisions to N.H. Rules of Professional Conduct

NH Bar JournalSummer 2004, Volume 45, Number 2New Hampshire Bar Association Ethics Committee Proposed Revisions to N.H. Rules of Professional ConductEditor's Note: The following is the Ethics Committee's work-in-progress draft of a proposed revision and updating of the New Hampshire Rules of Professional Conduct. The Committee's work makes reference to the ABA's Ethics 2000 Project which recently revised the ABA's Model Rules of Professional Conduct. The Ethics Committee version contains a number of new sections and in only a handful of instances copies the ABA's new language. The Ethics Committee's version also includes revised New Hampshire Comments.

One of the committee's first changes was to replace the "Scope" of the current Rules and replace it with a more concise "Statement of Purpose."

The version published here also does not contain drafts of several rules the committee had not finalized before Bar Journal deadline. Updated versions of the Committee's draft are available NH Practice Guidelines, with links to the current NH Rules of Professional Conduct, as well as to the ABA's Model Rules.


The Rules of Professional Conduct constitute the disciplinary standard for New Hampshire lawyers. Together with law and other regulations governing lawyers, the Rules establish the boundaries of permissible and impermissible lawyer conduct.

The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the context of legal representation and of law itself. Some of the Rules are imperatives, expressed by the terms "shall" or "shall not". Others, generally expressed by the term "may", are permissive and define areas in which the lawyer may exercise professional judgment.

The Rules are not designed to be a basis for civil liability. The purpose of the Rules can be subverted when the Rules are invoked by opposing parties as procedural weapons. Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. Violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer from a position or from pending litigation. Nevertheless, as the Rules establish a standard of conduct for lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.

The Rules of Professional Conduct are promulgated and amended by the Supreme Court of the State of New Hampshire with due input from members of the New Hampshire Bar and interested members of the public. Each Rule is published together with the applicable ABA Comment, as adopted by the American Bar Association in conjunction with its Model Rules of Professional Conduct. Following the ABA Comments may be found a New Hampshire Comment, which may describe distinctions between the Rule as adopted in New Hampshire and the respective ABA Model Rule. The ABA and New Hampshire Comments are intended to be interpretive, not mandatory. The New Hampshire Comments are provided by the Ethics Committee of the New Hampshire Bar Association.

Lawyers have traditionally aspired to higher standards of professionalism than should be made mandatory in the Rules. Professionalism encompasses civility, competence, conscience, contribution to the quality of the legal system including equal access to the courts, and public service.

New Hampshire Comments

The Statement of Purpose replaces the ABA Model Preamble and Scope in their entirety. The New Hampshire Supreme Court has not adopted the existing ABA Model Preamble and Scope, so that there is no base text to amend. The NHBA Ethics Committee found that, in both the existing and the proposed ABA Model Preamble and Scope, the following defects exist:

Much of the Preamble and Scope consists of imprecise restatements or summaries of the Rules, which are generally unnecessary, potentially confusing, or both.

The Committee does not believe it appropriate for the Statement of Purpose to attempt to codify when the Rules should or should not be used by disciplinary bodies, or how degrees of punishment for violations should be determined.

Portions of the Preamble and Scope are aspirational in nature, which runs the risk of converting goals into mandates. The Committee believes that the Rules will succeed better if the distinction between worthy aspirations and basic mandates is kept clear.

The length and lack of clarity in the wording of the Preamble and Scope materially diminish their utility to their readers.

Rule 1.0 Definitions [not yet adopted]

Rule 1.1. Competence

(a) A lawyer shall provide competent representation to a client.

(b) Legal competence requires at a minimum:

(1) specific knowledge about the fields of law in which the lawyer practices;

(2) performance of the techniques of practice with skill;

(3) identification of areas beyond the lawyer's competence and bringing those areas to the client's attention;

(4) proper preparation; and

(5) attention to details and schedules necessary to assure that the matter undertaken is completed with no avoidable harm to the client's interest.

(c) In the performance of client service, a lawyer shall at a minimum:

(1) gather sufficient facts regarding the client's problem from the client, and from other relevant sources;

(2) formulate the material issues raised, determine applicable law and identify alternative legal responses;

(3) develop a strategy, in consultation with the client, for solving the legal problems of the client; and

(4) undertake actions on the client's behalf in a timely and effective manner including, where appropriate, associating with another lawyer who possesses the skill and knowledge required to assure competent representation.

Rule 1.2: Scope Of Representation And Allocation Of Authority Between Client And Lawyer

(a) Subject to paragraphs (c), (d), and (e), a lawyer shall abide by a client's decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

(e) It is not inconsistent with the lawyer's duty to seek the lawful objectives of a client through reasonably available means, for the lawyer to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client, avoid the use of offensive or dilatory tactics, or treat opposing counsel or an opposing party with civility.

New Hampshire Comments

  1. This rule differs from the ABA Model Rule by:

    Deleting the last two sentences of ABA Model Rule 1.2 (a).

    Adding a new 1.2(e).

  2. The deleted sentences of ABA Model Rule 1.2 (a) provide as follows:

    "A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify."

    The Committee believes that the particular binding client decisions articulated in the third sentence of Rule 1.2(a) are by no means exclusive. There will obviously be other important client decisions that will be binding upon the lawyer depending upon the fact specific circumstances of any representation. The Committee certainly agrees that the Model Rule sentences correctly state those particular client decisions that are binding upon the lawyer. The Committee also believes, however, that specifically including these in the Rule may be wrongly construed by a lawyer to be the only binding decisions that can be made by a client. A lawyer must always carefully consider all client requests or decisions, in light of all relevant factors, including but not limited to, the particular fact pattern, type of representation, a client's social and economic considerations, and the scope of representation and earlier decisions reached during the representation. See, e.g., Restatement Third, The Law Governing Lawyers, 21 ("Allocating the Authority to Decide Between a Client and a Lawyer"), 22 ("Authority Reserved to a Client"), and 23 ("Authority Reserved to a Lawyer") (2000).

  3. The added provision in Rule 1.2 (e), restates a rule revision that has been adopted (in various forms) in several other states. The Committee believes, especially in light of a growing concern by NH practicing lawyers in the professionalism of lawyers, that it is appropriate to make a distinction between following client objectives during representation, and the general civility and...

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