Opinion
No. R-2004-003.
October 27, 2004
ORDER
R-2004-003 In re September 2004 Report of the Advisory Committee on Rules.
After consideration of the proposed amendments to court rules reported by the New Hampshire Supreme Court Advisory Committee on Rules in September 2004, the court hereby requests public comment on the following proposals for amendments to court rules:
A. SUPREME COURT RULES
1. Supreme Court Rule 42(5)(l) re refund of character and fitness investigation fees. (Appendix A)
2. Supreme Court Rule 51-A re forms. (Appendix B)
B. SUPERIOR COURT RULES
1. Superior Court Rule 49-A re continuances. (Appendix C)
2. Superior Court Rule 169 re records research fees. (Appendix D)
C. DISTRICT COURT RULES
1. District Court Rule 3.3 re records research fees. (Appendix E)
D. PROBATE COURT RULES
1. Probate Court Rule 49-A re continuances. (Appendix F)
E. RULES OF PROFESSIONAL CONDUCT
1. Professional Conduct Rule 5.5 re unauthorized practice of law, multijurisdictional practice of law, and limited certificates of admission to practice law. (Appendix G)
2. Professional Conduct Rule 8.5 re disciplinary authority and choice of law. (Appendix H)
On or before Friday, December 17, 2004, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the above rules. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at:
rulescomment@courts.state.nh.us
Copies of the proposed changes are available upon request to the clerk of the Supreme Court at the N.H. Supreme Court Building, 1 Noble Drive, Concord, New Hampshire 03301 (Tel. 271-2646). In addition, the proposed changes are available on the Internet at:
http://www.courts.state.nh.us/index.htm
The current rules of the New Hampshire state courts are also available on the Internet at:
http://www.courts.state.nh.us/rules/index.htm APPENDIX A
Amend Supreme Court Rule 42(5)(l) by deleting the words "one-half of" from the last sentence of said subparagraph and adopting said subparagraph, as amended, on a permanent basis as follows:
(l) The fee for the character and fitness investigation shall be in such amount as the supreme court shall from time to time determine. This sum shall be paid to the New Hampshire Supreme Court Character and Fitness Committee in addition to the fee paid to the clerk of the supreme court for the taking of the examination for admission to practice or for the filing of the motion for admission to practice without examination. Both fees shall be nonrefundable; provided, however, that if an application for admission on motion pursuant to Rule 42(10), 42(11), or 42(12) is denied by the court prior to the commencement of the character and fitness investigation by the Character and Fitness Committee, then the character and fitness investigation fee shall be refunded.
APPENDIX B
Adopt new Supreme Court Rule 51-A as follows:
RULE 51-A. APPROVAL OF FORMS
(1) The supreme court shall establish such forms for all courts as are necessary for the effective administration of justice. See RSA 490:26-d. No form shall be promulgated or put into use generally in any court prior to its approval by the supreme court. No form shall be amended without the approval of the supreme court.
(2) An administrative judge, the director of the administrative office of the courts, or a person designated by an administrative judge or the director, may submit proposed new forms or proposed amendments to approved forms to the supreme court for approval. Within thirty days after the date the proposed new form or amendment is received by the supreme court, the court shall approve, amend, or reject the proposal, or require that the person who submitted the proposal provide a written explanation of the purpose and need for the proposed form or amendment; provided, however, that the court may by order extend the thirty-day period. Failure of the court to take any action within the thirty-day period (or within any court-ordered extension thereof) after a proposal is received shall constitute approval of the proposed form or amendment; provided, however, that if the court requires the person who submitted the proposal to provide a written explanation of its purpose and need, then failure of the court to take any action within the thirty-day period (or within any court-ordered extension thereof) after the written explanation is received shall constitute approval of the proposed form or amendment.Transition Provision
All forms in use in any court upon the effective date of this rule may continue to be used for one year. Any such form that has not been approved by the supreme court by the end of said one-year period shall thereafter not be used.
APPENDIX C
Adopt new Superior Court Rule 49-A as follows:
49-A. Where a trial has been scheduled in one case prior to the scheduling of another matter in another court, or elsewhere, where an attorney or party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and date except as follows:
(a) A subsequently scheduled case involving trial by jury in a District, Superior, or Federal District Court, or argument before the Supreme Court.
(b) Unusual circumstances causing the respective courts to agree that an order of precedence other than the above shall take place.APPENDIX D
Amend Superior Court Rule 169 by deleting said rule and replacing it with the following:
169. FEES.
(I) The appropriate fee must accompany all filings. All fees shall be consolidated into a single payment, when possible.
(II) 32.8% of the entry fee paid in each libel and petition in marital cases ($41.00) shall be deposited into the special fund established by RSA 458:17-b. Said fund is for the compensation of mediators, appointed pursuant to RSA 458:15-a, and guardians ad litem, appointed pursuant to RSA 458:17-a, when the parents are indigent.
(III) (A) Original Entries:
(1) Original Entry of any Action at Law or Equity except a petition for writ of habeas corpus; Original Entry of all Marital Matters, including Order of Notice and Guardian ad Litem Fee; Transfer; the filing of a foreign judgment pursuant to RSA 524-A; or any Special Writ $ 125.00
(2) Original Entry of a petition for writ of habeas corpus $ 0 (no fee)
(B) Small Claim Transfer Fee $ 90.00
(C) Motion to Bring Forward (post judgment) $ 50.00
(D) Petition to Annul Criminal Record $ 50.00
(E) Wage Claim Decision $ 25.00
(F) Marriage Waiver $ 25.00
(G) Motion for Periodic Payments $ 15.00
(H) Original Writ (form) $ 1.00
(I) Divorce Certificate (VSR) only $ 5.00
(J) Divorce Certificate, Certified Copy of Decree and if applicable, Stipulation, QDRO, USO, and other Decree-related Documents $ 15.00
(K) Certificates and Certified Copies $ 5.00
(L) All Copied Material $ .50/page
(IV) On the commencement of any custody or support proceeding for which a fee is required, including libels for divorce with minor children, an additional fee of $2.00 shall be paid by the petitioner.
(V) Pursuant to RSA 490:24, II, the sum of $20.00 shall be added to the fees set forth in paragraphs (III)(A)(1) and (III)(C) above.
(VI) Records Research Fees:
(A) Record information must be requested in writing and include the individual's full name and, if available, the individual's date of birth.
(B) A fee of $10.00 per request will be assessed for electronic (computer) searches of less than ten names.
(C) A fee of $25.00 per request will be assessed for electronic (computer) searches of ten or more names.
(D) Extensive electronic (computer) searches requiring more than one hour will be assessed $25.00 per additional hour or portion thereof.
(E) A fee of $25.00 per hour or portion thereof will be assessed for manual searches. The fee is based on this hourly rate and not the number of names per request.
(F) Charges for requests requiring a combination of manual and electronic searches on the same party will be assessed according to the fee schedule for both categories.
EXAMPLE: One request for electronic search with seven names = $10.00. Additional requirement that one or more of those seven names be manually researched as well = $25.00 per hour or portion thereof. Assuming the manual research is completed in less than one hour, then the total fee = $35.00.
APPENDIX E
Amend District and Municipal Court Rule 3.3 by deleting said rule and replacing it with the following:
Rule 3.3. Court fees
(I) Fees
(A) Original Entries:
Civil writ of summons Replevin $ 75.00 $ 75.00 Landlord/Tenant $ 50.00 entry $ 100.00 Registration of foreign $ 35.00 judgment Small claims entry
(B) General and Miscellaneous
Motion for Periodic Payments $ 15.00 Petition to annul criminal $ 50.00 record $ 1.00 each Original writ
(C) Certificates Copies
Certificate of Judgment Exemplication of $ 10.00 Judgment $ 25.00 Certified $ 5.00 copies $ .50/page All copied material (except $ .50/page transcripts) Computer screen printout
(II) Surcharge
Pursuant to RSA 490:24, II, the sum of $20.00 shall be added to the fees set forth in paragraph (I)(A) above.
(III) Records Research Fees
(A) Record information must be requested in writing and include the individual's full name and, if available, the individual's date of birth.
(B) A fee of $10.00 per request will be assessed for electronic (computer) searches of less than ten names.
(C) A fee of $25.00 per request will be assessed for electronic (computer) searches of ten or more names.
(D) Extensive electronic (computer) searches requiring more than one hour will be assessed $25.00 per additional hour or portion thereof.
(E) A fee of $25.00 per hour or portion thereof will be assessed for manual searches. The fee is based on this hourly rate and not the number of names per request.
(F) Charges for requests requiring a combination of manual and electronic searches on the same party will be assessed according to the fee schedule for both categories.
EXAMPLE: One request for electronic search with seven names = $10.00. Additional requirement that one or more of those seven names be manually researched as well = $25.00 per hour or portion thereof. Assuming the manual research is completed in less than one hour, then the total fee = $35.00.
APPENDIX F
Amend Probate Court Rule 49-A by substituting the word "date" for "dated" in the first sentence, and adopting said rule, as amended, on a permanent basis as follows:
Rule 49-A. CONTINUANCES — Scheduling Conflict
Where a trial has been scheduled in one case prior to the scheduling of another matter in another Court, or elsewhere, where an Attorney or Party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and date except as follows:
(a) A subsequently scheduled case involving trial by jury in a District, Superior, or Federal District Court, or argument before the Supreme Court.
(b) Unusual circumstances causing the respective Courts to agree that an order of precedence other than the above shall take place.
APPENDIX G
Amend Professional Conduct Rule 5.5 by deleting said rule and replacing it with the following:
Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law; Limited Certificate of Admission to Practice Law
(a) A lawyer shall not practice law in a United States jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this State shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this State for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this State.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this State that:
(1) are undertaken in association with a lawyer who is admitted to practice in this State and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this State or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order 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 in this State 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 and are not services for which the forum requires prohacvice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this State that:
(1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission, provided that if the lawyer intends to provide such services other than on a temporary basis, then the lawyer must obtain a certificate for limited admission to practice law in this State; or
(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.
(e) A lawyer admitted in another United States jurisdiction who acts in this State pursuant to subparagraphs (c) or (d) shall:
(1) be subject to the New Hampshire Rules of Professional Conduct and the disciplinary authority of the supreme court; and
(2) not hold himself or herself out as being admitted to practice in this State and shall not solicit clients in New Hampshire.
(f) A lawyer admitted in another United States jurisdiction who intends to act in this State pursuant to subparagraph (d)(1) shall before providing legal services in this State other than on a temporary basis:
(1) file with the clerk of the supreme court on a form provided an application for limited certificate of admission to practice law in this State;
(2) submit with the attorney's application for limited certificate of admission to practice law in this State an application fee and a signed sworn statement certifying that: (a) he or she is licensed and in good standing in a jurisdiction of the United States and has not been disbarred or suspended in any jurisdiction; (b) he or she provides services in this State only to his or her employer or its organizational affiliates; (c) these services are not those for which the forum requires pro hac vice admission; and (d) his or her employer is not engaged in the practice of law or provision of legal services.
(3) An attorney having a limited certificate of admission to practice law granted pursuant to this subparagraph shall:
(a) 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;
(b) 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; and
(c) pay such 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.
(4) Any limited certificate for admission to practice law granted pursuant to this subparagraph shall expire on July 31. It may be renewed annually by filing a new application for limited certificate of admission to practice law in this State pursuant to subparagraphs (f)(1) and (f)(2).
(5) A lawyer shall not provide legal services in this State pursuant to subparagraph (d)(1):
(a) following denial of the lawyer's application for limited certificate of admission to practice law in this State;
(b) while the lawyer's application for limited certificate of admission to practice law in this State is suspended; or
(c) between the date that the lawyer's application for limited certificate of admission to practice law in this State expires and the date upon which the lawyer files an application to renew the limited certificate of admission to practice law in this State.
APPENDIX H
Amend Professional Conduct Rule 8.5 by deleting said rule and replacing it with the following:
Rule 8.5. Disciplinary Authority; Choice of Law; Application of Rules to Nonlawyer Representatives
(A) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
(B) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.
(C) Application of Rules to Nonlawyer Representatives. Rules 1.2, 1.3, 1.4, 1.14, 1.15, 3.1, 3.2, 3.3, 3.4, 3.5, 4.1, 4.2, 4.3, 4.4, 8.2(a), and 8.4 of the Rules of Professional Conduct shall apply to persons who, while not lawyers, are permitted to represent other persons before the courts of this jurisdiction pursuant to RSA 311:1. The attorney discipline system shall have jurisdiction to consider grievances alleging violations of these Rules of Professional Conduct by nonlawyer representatives.