HB 1768-FN – AS AMENDED BY THE HOUSE

09Mar2006… 1152h

2006 SESSION

06-3049

10/01

HOUSE BILL 1768-FN

AN ACT establishing a committee to study the effects of rescinding the charter of the New Hampshire Bar Association, and relative to the regulation of attorneys by the supreme court.

SPONSORS: Rep. Mead, Hills 4; Rep. Rowe, Hills 6; Rep. O’Brien, Hills 4; Rep. Sorg, Graf 3; Rep. Elliott, Hills 19; Sen. Roberge, Dist 9; Sen. Boyce, Dist 4

COMMITTEE: Judiciary

AMENDED ANALYSIS

The bill establishes a committee to study the effects of rescinding the charter of the New Hampshire Bar Association.

The bill also establishes the authority and procedure for the regulation of attorneys by the supreme court.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

09Mar2006… 1152h

06-3049

10/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Six

AN ACT establishing a committee to study the effects of rescinding the charter of the New Hampshire Bar Association, and relative to the regulation of attorneys by the supreme court.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Study Committee Established; Purpose.

I. There is established a committee to study the effects of rescinding the charter of the New Hampshire Bar Association. The study shall consider that subsequent incorporation shall be limited to the association purposes stated in articles of incorporation by voluntary membership of attorneys admitted by the supreme court to practice in this state, and shall not be made or interpreted to require membership in the association as a condition of practicing law as a licensed attorney.

II. The members of the committee shall be as follows:

(a) Three members of the house of representatives, one of whom shall be a member of the finance committee and 2 of whom shall be members of the judiciary committee, appointed by the speaker of the house of representatives.

(b) Three members of the senate, appointed by the president of the senate.

III. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.

IV. The committee shall study:

(a) The effects of rescinding the charter of the New Hampshire Bar Association, including contractual ramifications, distribution of assets, removal and reassignment of duties of officers, and any other effects deemed worthy by the committee.

(b) Matter related to subsequent incorporation of a voluntary bar association.

(c) The collection and deposit of fees paid by attorneys to be licensed to practice law, whether in the general fund or other state fund.

(d) The payment of attorney dues and supreme court fees by state and local governments.

V. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named house member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Four members of the committee shall constitute a quorum.

VI. The committee shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, and the state library on or before July 1, 2007.

2 Attorneys and Counselors. RSA 311 is repealed and reenacted to read as follows:

CHAPTER 311

ATTORNEYS

311:1 Admission to Practice; Regulation of Attorneys.

I. The supreme court shall regulate the practice of law by attorneys and their admission to practice law in New Hampshire. It shall have continuing supervisory authority over attorneys practicing before courts and agencies in this state, and may assess fees for the purpose of regulating the practice of law and for disciplinary investigations, hearings, and enforcement.

II. Any citizen of the age of 18 years, of good moral character and suitable qualifications, on application to the supreme court and upon meeting the requirements of the supreme court shall be admitted to practice law as an attorney.

III. The supreme court shall adopt rules for the regulation of attorneys, including procedures for admission and examination, establishing all fees, disciplinary procedures, and other matters necessary for administration of this chapter.

311:2 Right to Appear.

I. A party in any cause or proceeding may appear, plead, prosecute, or defend in his or her proper person, that is, pro se, or may be represented by any citizen of good character. For the purposes of this section, a citizen shall be presumed to be of good character unless demonstrated otherwise.

II. No person shall act as attorney in any cause in which the person has acted as judge.

311:3 Oath.

I. Every attorney admitted to practice shall take and subscribe, in open court, the oaths to support the constitution of this state and of the United States, and the oath of office in the following form: You solemnly swear or affirm that you will do no falsehood, nor consent that any be done in the court, and if you know of any, that you will give knowledge thereof to the justices of the court, or some of them, that it may be reformed; that you will not wittingly or willingly promote, sue or procure to be sued any false or unlawful suit, nor consent to the same; that you will delay no person for lucre or malice, and will act in the office of an attorney within the court according to the best of your learning and discretion, and with all good fidelity as well to the court as to your client. So help you God or under the pains and penalty of perjury.

II. No person shall be permitted commonly to practice in New Hampshire as an attorney unless he or she has been admitted by the court and taken the oath prescribed in paragraph I.

311:4 Discipline; Disbarment. The supreme court shall inquire in a summary manner into any charges of fraud, malpractice, or contempt of court against an attorney, and, upon satisfactory evidence of the attorney’s guilt, shall suspend such attorney from practice, or may disallow or revoke the authority to practice law in New Hampshire.

311:5 Effect of Suspension. No person while suspended from practice pursuant to RSA 311:4, or until the person’s restoration to status in the state bar, shall be permitted to practice law in New Hampshire.

311:6 Practice by Corporations Prohibited. No corporation shall practice or appear as an attorney in any court in the state or before any judicial body or hold itself out to the public or advertise as being entitled to practice law, and no corporation shall draw agreements, or other legal documents not relating to its lawful business, or draw wills, or practice law, or give legal advice or legal information as an attorney, or hold itself out in any manner as being entitled to do any of the foregoing acts, by or through any person orally or by advertisement, letter, or circular; provided that the foregoing prohibition shall not prevent a corporation from employing an attorney in regard to its own affairs or in any litigation to which it is or may be a party. Any person violating any provisions of this section shall be guilty of a felony. Any natural person, including every officer, agent or employee of any such corporation, who, on its behalf, directly or indirectly engages in any of the acts herein prohibited or assists such corporation to do such prohibited acts shall be guilty of a misdemeanor. The term “corporation” as used in this section shall not include a corporation of attorneys organized as a professional association under the provisions of RSA 294-A.

311:7 Lien on Verdict. From the commencement of an action, bill in equity or other proceeding in any court, the filing of a counterclaim or plea in set-off or recoupment, or appearance in any proceeding before any state or federal department, board, or commission, the attorney who appears for a client in such proceeding shall have a lien for reasonable fees and expenses upon the client’s cause of action, upon the judgment decree or other order in the client’s favor entered or made in such proceeding, and upon the proceeds derived therefrom. The lien cannot be affected by any settlement between the parties before or after the judgment decree or other order. Upon the request of the client or the attorney, the court in which the proceeding is pending, or, if the proceeding is not pending in a court, the superior court, may determine and enforce the lien; provided that this section shall not apply to matters arising under RSA 282-A and any case where the method of determination of attorneys’ fees is otherwise expressly provided by statute.

Unauthorized Practice of Law

311:8 Definitions. In this subdivision:

I. “Bar association” means a professional society that may be a corporation for attorneys who are licensed by the supreme court and admitted to practice law in New Hampshire.

II. “Person” means an individual, corporation, partnership, or association.

311:9 Petition for Injunction. Upon the attorney general’s own information or upon complaint of any person, including any judge or any organized bar association in this state, the attorney general may maintain an action for injunctive relief in the supreme or superior court against any person who renders, offers to render, or holds himself or herself out as rendering any service which constitutes the unauthorized practice of the law. Any organized bar association in this state may intervene in the action, at any stage of the proceeding, for good cause shown.

311:10 Investigation by Attorney General.

I. The attorney general may investigate any complaint of unauthorized practice of the law and the attorney general, or a deputy attorney general or an assistant attorney general designated by the attorney general, may subpoena witnesses, compel their attendance, examine them under oath, and require the production of any relevant documentary evidence.

II. The laws relating to the attendance of witnesses in civil actions and the payment of their fees and expenses to those witnesses shall apply to investigations made by the attorney general.

III. If a person fails or refuses to obey a subpoena or to testify as to any material matter regarding which the person may be interrogated, the superior court, upon application by the attorney general, may issue to the person an order requiring the person to appear before the attorney general, or a deputy attorney general or an assistant attorney general designated by the attorney general, to produce documentary evidence or testify. Failure to obey the order of the court may be punished by the court as a contempt of court.

IV. When requested, public officers, their assistants, clerks or employees shall furnish to the attorney general, the deputy or an assistant attorney general designated by the attorney general all information and assistance.

V. Investigations under this section shall be confidential. Any person participating in the investigation who, except as required in the discharge of the person’s official duties, discloses to any person, other than to a person under investigation, the name of any person under investigation or any witness examined, or any other information obtained in the investigation is guilty of a misdemeanor.

VI. Every person whose conduct is investigated under this section shall be furnished with a written specification of the issues which are to be considered, and shall be given an opportunity to present evidence and be heard upon the specified issues.

311:11 Remedies and Procedures Additional to Those Now Existing. The remedies and procedures provided in this subdivision are in addition to and not in substitution for other available remedies and procedures.

3 Child Support Enforcement. Amend RSA 161-B:2, X to read as follows:

X. “Licensing board” means any department, bureau, board, commission, [bar association] branch of government, state agency, or municipality, or other licensor that has authority to issue licenses authorizing a person to engage in a business, occupation, profession, or industry, to operate a motor vehicle, or to engage in hunting, fishing, or trapping.

4 Judicial Council. Amend RSA 494:1, VIII and IX to read as follows:

VIII. Eight other members appointed by the governor and council, 3 of whom shall be [members of the New Hampshire Bar Association] attorneys of wide experience who have been admitted to practice in the state for more than 5 years, and 5 of whom shall be lay persons; and

IX. Five other members appointed by the chief justice of the supreme court, 3 of whom shall be [members of the New Hampshire Bar Association] attorneys of wide experience who have been admitted to practice in the state for more than 5 years, and 2 of whom shall be lay persons.

5 Public Defenders. Amend RSA 604-B:4 to read as follows:

604-B:4 Contract. The state of New Hampshire, by the judicial council and with the approval of governor and council, shall contract with any organization or groups of lawyers [approved by the board of governors of the New Hampshire Bar Association] to operate the public defender program and provide public defender representation as provided in RSA 604-B:2 and 3. The contract shall fix the number of defender attorneys providing representation in each county and shall permit the public defender program to subcontract for attorney services, including appellate services, as may be necessary to provide such representation. No such contract shall be effective for longer than 2 years. The compensation for operation of the public defender program shall be such sums as may be fixed by the contract, subject to the appropriations made therefor.

6 Reference Change. Amend RSA 161-C:3-f to read as follows:

161-C:3-f Child Support Insurance Settlement Intercept. The department may provide certain information to public agencies or its contracted agents in order to intercept insurance settlement payments or judgments claimed by individuals who are subject to a child support lien pursuant to RSA 161-C and who owe past-due support. The department may identify such individuals by name, last 4 digits of the individual’s social security number or other taxpayer identification number, date of birth, last known address, employer, or any combination thereof. Any information provided by the department in accordance with this section shall remain the property of the state of New Hampshire and shall be purged by any public agency or contracted agent receiving said information upon completion of the data match exchange. The department may perform an audit to insure that any public agency or contracted agent has purged said information. The specific penalty for failure to purge the information shall be set forth in any contract or agreement between the department and any public agency or contracted agent made pursuant to this section. Any transaction cost incurred by the department related to the data match exchange shall be directly recovered by the department from any insurance settlement or judgment proceeds. Insurance settlement payments for casualty loss to personal or real property, past or future medical treatment, and a pro-rated amount equal to 185 percent of the self-support reserve defined in RSA 458-C:2, X for the period of lost work for which the settlement or judgment constitutes recovery shall be exempt from this section. Reasonable attorney fees and expenses related to obtaining the insurance settlement or judgment shall be exempt from this section pursuant to RSA [311:13] 311:7. Any settlement, payment, or judgment received under the provision of this section shall be held by the department for 60 days prior to its release or distribution unless otherwise agreed to by the parties.

7 Reference Change. Amend RSA 161-C:11, I to read as follows:

I. Except as provided in paragraph II of this section, any property otherwise exempt from trustee process, attachment and execution shall be exempt from an order to withhold and deliver, administrative seizure and disposition, and lien and foreclosure. Insurance settlement payments for casualty loss to personal or real property and past or future medical treatment shall be exempt from this section. Reasonable attorney fees and expenses related to obtaining the insurance settlement or judgment shall be exempt from this section pursuant to RSA [311:13] 311:7.

8 Reference Change. Amend RSA 292:1-a to read as follows:

292:1-a Legal Services. Five or more persons of lawful age may associate together by articles of agreement to form a corporation, without a capital stock, for the purpose of providing professional legal services to the poor; provided, however, that no such corporation shall commence business until its articles of agreement and by-laws, and such other information as may be required, have been submitted to the supreme court for approval and such court has authorized it to commence business upon finding that it is a responsible organization. Such authorization may, after hearing, be revoked or suspended by the court for just cause. The actual practice of law by such corporation shall be conducted solely by members of the New Hampshire bar in good standing, and the fact of incorporation shall not in any way be deemed to immunize any attorney employed by the corporation from personal responsibility and liability to the clients whom he serves. The provisions of RSA [311:11] 311:6 shall not apply to corporations organized under this section.

9 Reference Change. Amend RSA 503:11, I to read as follows:

I. Notwithstanding RSA [311:11] 311:6, and to the extent not inconsistent with court rules, an officer, employee, partner, owner or trustee, as applicable, of a corporation, partnership, limited liability company, or trust who presents written authorization and who is not an attorney but is appearing for the organization, may represent the organization in an action cognizable as a small claim under this chapter before a district or municipal court for the purposes of entering a plea or answer on behalf of the organization, or otherwise representing the organization during the course of the small claim proceeding.

10 Severability. If any provision of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications hereof which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

11 Effective Date. This act shall take effect July 1, 2006.

LBAO

06-3049

Amended 3/21/06

HB 1768 FISCAL NOTE

AN ACT establishing a committee to study the effects of rescinding the charter of the New Hampshire Bar Association, and relative to the regulation of attorneys by the supreme court.

FISCAL IMPACT: