2004 Summer, 41. A 21st Century Update to the Rules of Professional Conduct.

Author:A Roundtable Discussion

New Hampshire Bar Journal

2004.

2004 Summer, 41.

A 21st Century Update to the Rules of Professional Conduct

NH Bar JournalSummer 2004, Volume 45, Number 2A 21st Century Update to the Rules of Professional ConductA Roundtable DiscussionParticipants in Roundtable DiscussionRolf Goodwin , co-chair, McLane, Graf, Raulerson & Middleton Bryan K. Gould, Brown, Olson & Wilson, PC, Concord Honey C. Hastings, solo practitioner, Amherst Linda T. Landis, co-chair; senior counsel, Northeast Utilities Mitchell M. Simon, professor, Franklin Pierce Law Center Interviewer: Dan Wise, communications director, New Hampshire Bar Association

INTRODUCTION

ROLF GOODWIN: The ABA began a process a few years ago called Ethics 2000. The goal of the Ethics 2000 Commission was to review the existing model rules of professional conduct and then update them. While that process was ongoing, the Ethics Committee was communicating with Associate Justice Linda Dalianis of the Supreme Court, who is also chair of the Supreme Court's Advisory Committee on Rules. We agreed that it would be helpful to have the Ethics Committee conduct a review of the New Hampshire Rules of Professional Conduct that were adopted in 1984, and propose necessary revisions in light of what the ABA was doing.

Our review is simply a set of recommendations that we will be submitting to the Supreme Court Advisory Committee on Rules, which in turn makes it recommendations to the Supreme Court. We decided to review each and every rule, taking into consideration what the ABA has done but not feeling bound to adopt their language. There are number of rules that we on the Ethics Committee have known needed to be revised to take into account the realities of contemporary practice. There are some rules we thought simply needed to be made clearer. We are making use of the Internet to post our working drafts and invite comment from Bar members and the public that we will review and incorporate before sending our proposed revisions to the Advisory Committee on Rules.

MULTIJURISDICTIONAL PRACTICE

BAR JOURNAL: How have changes in the legal profession affected the Rules of Professional Conduct? Are there some rules that need to be changed to reflect situations lawyers encounter now?

GOODWIN: One example of that is the issue of multijurisdictional practice. The question is whether New Hampshire should open its doors a little wider to accommodate attorneys not licensed here who are in the state, practicing law, but not in New Hampshire courts or with New Hampshire clients other than those that are connected to their employer. This has been going on for years. The ABA has proposed a Model Rule 5.5 in the hope that states would adopt it to better reflect the realities of practice. In the spring, the Supreme Court issued a proposal to create a limited license for in-house counsel with occasional contacts in New Hampshire and who do not practice in its courts. The court's proposal would make changes to Rule 5.5 and Rule 8.5.

[On June 2, Goodwin made comments on behalf of the Ethics Committee at a public hearing held by the Supreme Court's Advisory Committee on Rules. Goodwin said that the Ethics Committee questioned the need for NH to vary from the ABA's model rule 5.5 and questioned whether the requirements for compliance under the court's proposal for a limited license were too strict.

"The Ethics Committee has voted to recommend that the Court adopt the ABA Model Rule text as proposed, reasoning that the rule, which addresses in a limited way many of the most common multijurisdictional issues, represents a good first step in enhancing client service in a changing world," wrote Goodwin in a letter submitted to the Rules Committee. Acknowledging that the Ethics Committee had concerns about some aspects of the ABA's language, Goodwin said that in this situation, " uniformity, at least initially, among the states would have some obvious benefits. ... We continue to believe that adoption of the ABA Model Rule 5.5 would best protect clients and the public in New Hampshire."]

DIFFERENT VIEWS ON REFERRAL FEES

BAR JOURNAL: I know that the Ethics Committee has wrestled with the question of whether the Rules should allow referral fees.

BRYAN GOULD: That is a question that has been thoroughly debated...

HONEY HASTINGS: ...by a diverse group of attorneys.

LINDA LANDIS: We have two versions of Rule 1.5 f that we are submitting because the Ethics Committee membership was thoroughly divided on how the rule should be structured. [The Ethics Committee also has issued alternative versions of Rule 1.5 b, concerning the need for fee agreements.]

HASTINGS: With regard to referral fees, the committee felt that this was the sort of close call that the court has to make. We are going to tell them that we discussed it and came up with the two options - maybe that will help their thinking. This appears to be an area more appropriate for the court to be making the call - it's a major policy decision. We certainly can't make it because we didn't have a consensus.

LANDIS: And in this part of the process, with this first draft, we are also looking for the input of other practitioners. We hope we get input on all of these rules. We hope we are going to...

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