Proposed Rules Relating to Grievance Procedures, In re, 7111

• Decision Date: 25 June 1975
• Docket Number: No. 7111,O,7111
• Citation: 115 N.H. 310,341 A.2d 272
• Parties: In re PROPOSED RULES RELATING TO GRIEVANCE PROCEDURES. riginal.
• Court: New Hampshire Supreme Court

Page 272

341 A.2d 272

115 N.H. 310

In re PROPOSED RULES RELATING TO GRIEVANCE PROCEDURES.

No. 7111, Original.

Supreme Court of New Hampshire.

June 25, 1975.

PER CURIAM:

The committee on professional conduct pursuant to Supreme Court Rule 26 (adopted June 19, 1974, effective June 23, 1974 (113 N.H. 853 (1973)) submitted for approval proposed rules relating to grievance procedures. Written comment from members of the bar was invited by the court and interested members of the bar who desired to be heard orally argued on February 7, 1975. Paul R. Cox, Esq., and Laurence F. Gardner, Esq., of the committee and Robert H. Reno, Esq., submitted written comments and argued orally. Honorable Charles G. Douglas III, Jerome L. Silverstein, Esq., and Frederic T. Greenhalge, Esq., submitted written comments and suggestions. Edward J. Haseltine, a lay member of the committee, commented orally on the rules at the hearing. We have considered comments and suggestions relating to all of the proposed rules and with the changes noted, the proposed rules replace the present Supreme Court Rule 26 and are attached to this opinion in their corrected form.

I.

We approve affective July 25, 1975, the proposed rules and the rules of procedure subject to the following changes:

1. Rule 12 is eliminated as it is covered in rule 1, subd. A. The remaining rules 13 through 18 are renumbered to conform to this change.

2. The second sentence of rule 1, subd. B is amended to read: "It is the duty of every recipient of that right to conduct himself at all times in conformity with the standards imposed upon members of the bar as conditions for the right to practice law."

3. Rule 3, subd. C, par. 4, second sentence, shall read: "Upon the approval of such findings and recommendations, the committee can dismiss the complaint, administer private reprimand, or institute and oversee the prosecution of formal disciplinary proceedings in this Court as the case may be." The word "party" in the second sentence of Rule 3, subd. C, par. 5 is changed to "attorney". Rule 3, subd. C, par. 5, next to last sentence, "may" instead of "shall".

4. Rule 7 is amended to add after the first sentence a new sentence to read as follows: "Funds of a client, and funds in which a client has an interest shall be deposited in a trust account and shall in no way be commingled with the funds of an attorney or the funds of the firm of the attorney."

5. The last sentence of rule 7 is amended to read: "The Court may at any time order an audit of such financial records or trust accounts of an attorney and take such other action as it deems necessary to protect the public." The sentence as originally proposed permitted audit of "an attorney's financial records" and was objectionable on self-incrimination grounds under the rule laid down in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). In our opinion the limitation of the audit to records and accounts which an attorney is required by rule of court to maintain for the protection of the public avoids this constitutional objection. Andresen v. Bar Association, 269 Md. 313, 305 A.2d 845 (1973), cert. denied, 414 U.S. 1065, 94 S.Ct. 572, 38 L.Ed.2d 470 (1973); see In re Scull, 63 N.J. 108, 305 A.2d 70 (1973).

6. Rule 14, subd. E, first sentence, "may" instead of "shall".

7. It was suggested subsequent to the oral arguments that we add to rule 7 a requirement that attorneys annually certify to the clerk of this court their maintenance of trust accounts as required by rule 7. While this suggestion appears to have merit we are not disposed to adopt this addition to rule 7 without an opportunity to the bar to be heard. If the committee desires to submit such an amendment, it may be considered at a later date.

II.

The comments and suggestions from interested members of the bar have been helpful and have resulted in some of the modifications we have made in the proposed rules. In view of the nature of some suggestions which we have rejected, it appears desirable to offer some explanation of our reasons for not adopting them.

The suggestion that the committee should only act upon written complaint and provide all the due process safeguards of a trial appears to misconstrue the functions of the committee. The rules permit the committee to conduct an investigation upon a complaint or upon its own motion. When the investigation is completed, the committee may dismiss the matter, bring a formal complaint to the court, or issue a private reprimand to the attorney. In the event of a reprimand, the attorney may appeal to the court and obtain a hearing. No publicity is attendant upon the committee investigation, and if the complaint is unjustified, the action of the committee has protected the attorney from unwarranted publicity and damage to the attorney's reputation. In the event of an appeal from a reprimand or in the event of a formal complaint to this court, rule 15 (New rule 14) provides the respondent-attorney with complete due process protection. The proposed rule as adopted (effective June 23, 1974) is in accord with the recommendations contained in the report of the American Bar Association Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement, 71, 92 (Final Draft, June 1970) [hereinafter cited as Clark Report].

We have rejected the suggestion that rule 8, providing for suspension of an attorney convicted of a serious crime as therein defined, should be eliminated. "No single facet of disciplinary enforcement is more to blame for any lack of public confidence in the integrity of the bar than the policy that permits a convicted attorney to practice while apparently enjoying immunity from discipline." Clark Report 124. The integrity of the bar and the protection of the public dictate the summary suspension permitted by this rule during the period of any appeal from conviction of a serious crime.

We have also rejected objections to rule 5 which extends the absolute privilege given to statements in court (W. Prosser, Torts § 114 (4th ed. 1971) ) to statements made in disciplinary proceedings providing they are made in good faith. It denies the privilege to statements made other than to the court, committee or attorney general. This is in accord with what we believe to be the better rule. (See Annot., 77 A.L.R.2d 493 (1961); Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594 (1959) ) and is recommended by the Clark Report at page 74.

So ordered.

APPENDIX

RULES RELATING TO GRIEVANCE PROCEDURES

CONTENTS

1. Discipline Matters in General

A. Jurisdiction

B. Grounds for Discipline

C. Priority of Discipline Matters

2. Definitions

A. Committee

B. Bar Counsel

3. Committee on Professional Conduct

A. Membership

B. Terms

C. Powers and Duties

1. Investigation

2. Appointment of Bar Counsel

3. Hearing Panels

4. Determinations

5. Reprimand

6. Committee Rules

7. Appoint Other Personnel

4. Bar Counsel

A. Appointment

B. Powers and Duties

C. Reinstatement Hearings

D. Appointment of Other Personnel

5. Immunity

6. Subpoena Power for the Committee

7. Attorney's Financial Records

8. Attorneys Convicted of Serious Crimes

A. Suspension

B. Definition of "Serious Crime"

C. Conclusive Evidence of "Serious Crime"

D. Institute Disciplinary Proceedings

E. Reference to Committee

F. Reinstatement of Attorney

G. Duty to File Certificate of Conviction

H. Duty of Committee to File Certificate of Conviction

I. Attorneys Indicted or Bound Over

9. Proceedings Where an Attorney is Declared to be Incompetent or is Alleged to be Incapacitated

A. Mentally Incompetent

B. Determination of Incapacity

C. Suspension Due to Incapacity

D. Reinstatement

E. Burden of Proof

F. Waiver of Doctor-Patient Privvilege

10. Resignation by Attorneys Under Disciplinary Investigation

A. Attorney's Affidavit

B. Disposition of Affidavit

C. Contents of Affidavit

11. Reciprocal Discipline

12. Disbarred or Suspended Attorneys

A. Notification of Clients

B. Litigated Matters and Notification of Clients

C. Winding Up Affairs

D. Filing Affidavit as to Compliance

E. Retention of Records

13. Reinstatement

A. Time to Move for Reinstatement

B. Hearings Before Committee Re Reinstatement

C. Role of Bar Counsel

D. Expenses

14. Procedure

A. Instituting Disciplinary Proceedings

B. Service

C. Answer

D. Temporary Orders

E. Reference to Judicial Referee or Other Judge

F. Investigation

G. Distribution of Court Order

H. Other Action

I. Conform to Requirements of Superior Court Rules

15. Appointment of Counsel to Protect Clients' Interests

A. Appointment of Attorneys

B. Non-disclosure

C. Expenses

16. Refusal of Complaint to Proceed, Compromise, etc.

17. Expenses Relating to Discipline Enforcement

1. Discipline Matters In General:

A. Jurisdiction: Any attorney admitted to practice law in this State or any attorney specially admitted to practice by a court of this State is subject to the disciplinary jurisdiction of this Court and the Committee as hereinafter defined. 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 attorney shall not terminate jurisdiction of this Court.

B. 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. It is the duty of every recipient of that right to conduct himself 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...