Differences from ABA Model Rules
| Rule 1.2(c) Limited Scope | Significant Changes |
| Rule 5.4(a) Fee-Sharing | Same as Model Rule |
| Rules 5.4(b)-(d) Non-Lawyer Ownership | Same as Model Rule |
| Rule 5.5. Unauthorized Practice of Law | Significant Changes |
| Rule 5.7 Law Related Services | Same as Model Rule |
| Rule 6.5 Limited Scope | Significant Changes |
| Rule 7.2(b) Lawyer Referral | Significant Changes |
| Cloud Computing Advisory | Yes |
| Technology Competency Rules | Yes |
ABA Rule 1.2(c) (Limited Scope)
Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer
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(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent In providing limited representation, the lawyer’s responsibilities to the client, the court and third parties remain as defined by these Rules as viewed in the context of the limited scope of the representation itself; and court rules when applicable.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, except as stated in paragraph (e), 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) A lawyer may counsel or assist a client regarding conduct expressly permitted by state or local law that conflicts with federal law, provided that the lawyer counsels the client about the potential legal consequence of the client’s proposed course of conduct under applicable federal law.
(f) 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.
(g) In addition to requirements set forth in Rule 1.2(c),
(1) a lawyer may provide limited representation to a client who is or may become involved in a proceeding before a tribunal (hereafter referred to as litigation), provided that the limitations are fully disclosed and explained, and the client gives informed consent to the limited representation. The form set forth in section (g) of this Rule has been created to facilitate disclosure and explanation of the limited nature of representation in litigation. Although not prohibited, the provision of limited representation to a client who is involved in litigation and who is entitled as a matter of law to the appointment of counsel is discouraged.
(2) a lawyer who has not entered an applicable limited appearance, and who provides assistance in drafting pleadings, shall advise the client to comply with any rules of the tribunal regarding participation of the lawyer in support of a pro se litigant.
Relevant Comments:
3. The second sentence of Rule 1.2(c) confirms that lawyers providing limited representation are bound by all professional responsibility rules. The Rule also recognizes that these ethical obligations will need to be interpreted, or analyzed, within the context of the limited representation. One example of such an obligation could be the duty, under Rule 1.1(c)(3), to “develop a strategy, in collaboration with the client, for solving the legal problems of the client.” A client who retains an attorney for limited purposes may simply want the lawyer to research and provide the applicable law in a specific area, thereby making Rule 1.1(c)(3) inapplicable. Conversely, the lawyer’s duty pursuant to Rule 4.1(a) not to make false statements to third persons is the type of fundamental obligation that would remain applicable regardless of the limits placed on the scope of representation.
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6. A new section (g) is added to apply specific rules for the limited representation of a client in a litigation setting, which would require full disclosure and informed consent. A recommended written Consent to Limited Representation form for compliance with this provision, while not mandated, is provided in section (h). Subsection (g)(2) requires the lawyer to advise the client to comply with whatever applicable court rules may apply, with respect to any “ghost written” pleadings prepared by that lawyer who is not actually involved, by appearance, in the particular litigation.
ABA Rule 5.4(a) (Fee-sharing)
Same as Model Rule.
Relevant Comments:
[1] The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment. Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer’s professional judgment.
ABA Rule 5.4(b – d) Non-lawyer ownership
Same as Model Rule.
Relevant Comments:
[2] This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).
ABA Rule 5.5 (UPL)
Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law
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(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of the law of this jurisdiction; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice the law of this jurisdiction.
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(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice;
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction; or
(3) relate solely to the law of a jurisdiction in which the lawyer is admitted.
(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.
Relevant Comments:
1. New Hampshire has adopted ABA Model Rule 5.5.
2. Lawyers desiring to provide pro bono legal services on a temporary basis in a jurisdiction that has been affected by a major disaster, but in which they are not otherwise authorized to practice law, as well as lawyers from the affected jurisdiction who seek to practice law temporarily in another jurisdiction, but in which they are not otherwise authorized to practice law, should consult Supreme Court Rule 60, which governs the provision of legal services following determination of major disaster.
3. Prior versions of Rule 5.5 and prior interpretations of the Rule assumed that attorneys practice in fixed physical offices and only deal with legal issues related to the States in which their offices are located. The increased mobility of attorneys, and, in particular, the ability of attorneys to continue to communicate with and represent their clients from anywhere in the world, are circumstances that were never contemplated by the Rule. The adoption of Rules 5.5(b) and (c) in 2008 reflected the State’s growing recognition that multi-jurisdictional practice is a modern reality that must be accommodated by the Rules.
The assumption that a lawyer must be licensed in New Hampshire simply because he or she happens to be present in New Hampshire no longer makes sense in all instances. Rather than focusing on where a lawyer is physically located, New Hampshire’s modifications of Rule 5.5(b)(1) and (2) and adoption of new Rule 5.5(d)(3) clarify that a lawyer who is licensed in another jurisdiction but does not practice New Hampshire law need not obtain a New Hampshire license to practice law solely because the lawyer is present in New Hampshire.
Notwithstanding the New Hampshire amendments to Rule 5.5(b)(1) and (2) and the adoption of new Rule 5.5(d)(3), Rule 8.5(a) still provides that a lawyer who is admitted in another jurisdiction, but not in New Hampshire, “is also subject to the disciplinary authority of … [New Hampshire] if the lawyer provides or offers to provide any legal services in” New Hampshire. In particular, such a lawyer will be subject to the provisions of Rules 7.1 through 7.5 regarding the disclosure of the jurisdictional limitations of the lawyer’s practice. In addition, Rule 5.5(b)(2) continues to prohibit such a lawyer from holding out to the public or otherwise representing that the lawyer is admitted to practice New Hampshire law.
Modified By:
Appeal of New Hampshire Dep’t of Transp., 724 A.2d 1284 (N.H. 1999) (state employees’ union’s provision of legal services to its members falls within constitutional exception to state law prohibiting corporations from engaging in practice of law)
In re Campaign for Ratepayers’ Rights, 634 A.2d 1345 (N.H. 1993).
Other Definition:
Sup.Ct.Rules, Rule 35, Rule 1
There is no satisfactory, all-inclusive definition of what constitutes the practice of law. Ethical Consideration 3-5 (E.C. 3-5) of the former Code of Professional Responsibility provided:
“It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of a lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment.”
HB 1420 – CHAPTER 218:1, LAWS OF 2002 AN ACT establishing a task force to define the practice of law in New Hampshire.
Final Report
The above-named Task Force appointed to define the practice of law in New Hampshire, having duly met offers the following final report:
· That we are unable to reach a consensus of opinion in order to offer specific findings and recommendations on the practice of law in New Hampshire.
ABA Rule 5.7 (Law Related Services)
Same as Model Rule.
Relevant Comments:
Rule 5.7 identifies the circumstances in which all of the Rules of Professional Conduct continue to apply to lawyers even when the lawyer is not providing legal services to the person, or customer, for whom the law-related services are performed. Even when those circumstances do not exist, however, the lawyer will remain subject to those overarching rules that apply generally to lawyers regardless of the context. This would include — by way of example only — Rule 8.4(c)’s prohibition of “conduct involving dishonesty, fraud, deceit or misrepresentation,” Astles’ Case, 134 N.H. 602 (1991), and Rule 1.9’s prohibition on the use against a former client of confidential information gained in the representation of the client, Wood’s Case, 137 N.H. 698 (1993).
Modified By:
In re Unnamed Att’y, 645 A.2d 69 (N.H. 1994) (disciplinary authorities had authority under New Hampshire rule on random audits of lawyer trust accounts to audit financial records of title insurance company of which lawyer was majority shareholder; lawyer controlled company and shared office space and employees with it)
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Rule 6.5. Nonprofit and Court-Annexed Limited Legal Service Programs
(a) A lawyer who, under the auspices of a program sponsored by the New Hampshire Bar Association, a nonprofit organization or court, provides one-time consultation with a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.
(c) Rules 1.6 and 1.9(c) are applicable to a representation governed by this Rule.
Relevant Comments:
1. New Hampshire’s version differs from the Model Rule as follows:
a. Application of this Rule in (a) is limited to a “one time consultation with a client” instead of the ABA’s version “short-term limited legal services to a client”.
b. Section (c) is added.
2. The change in (a) is intended to give the attorney some clarity as to the scope of this Rule. This Rule relaxes certain of the normal conflicts limitations to allow this important pro bono service; this Rule applies only under circumstances where it is not reasonably possible for the attorney to otherwise comply with normal conflict of interest records checks procedures. Therefore, the situation where an attorney provides repeated services for the same client, and not a “one time consultation”, would not permit any deviation from the normal conflicts rules.
3. The addition of Section (c) is intended simply to emphasize the attorney’s continuing responsibility to maintain confidences under Rule 1.6, and the attorney’s duties to a former client under Rule 1.9(c). This inclusion raises this language, already contained in ABA Comment [2], to Rule status.
4. The value of the services rendered to the public in this pro bono context is important enough to justify carving out a special exception to the normal conflicts rules applicable in general client representation. In this special context, not even the protective “screening” rules, such as those adopted in 1.11(b), were employed.
5. Should a lawyer participating in a one-time consultation under this Rule later discover that the lawyer’s firm was representing or later undertook the representation of an adverse client, the prior participation of the attorney will not preclude the lawyer’s firm from continuing or undertaking representation of such adverse client. But the participating lawyer will be disqualified and must be screened from any involvement with the firm’s adverse client. See ABA Comment [4].
ABA Rule 7.2(b) (Lawyer referral)
Rule 7.2. Advertising
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(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay a fee charged by an organization that is recognized by the Internal Revenue Service as exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code; and
(3) purchase a law practice in accordance with Rule 1.17.
Relevant Comments:
The New Hampshire Rule differs from both the prior New Hampshire Rule and the Model Rule. Section (b)(2) limits the class of nonprofit entities to which referral fees may be paid to those that have obtained tax recognition of exemption. Model Rule (b)(4) is deleted.
Cloud Computing
Ethics Committee Advisory Opinion #2012-13/04 https://www.nhbar.org/ethics/opinion-2012-13-04
Reasonable Care Standard
Recommendations
- Have a basic understanding of technology and stay abreast of changes, including privacy laws and regulations.
- Consider obtaining client’s informed consent when storing highly confidential information.
- Delete data from the cloud and return it to the client at the conclusion of representation or when the file must no longer be preserved.
- Make a reasonable effort to ensure cloud providers understand and act in a manner compatible with a lawyer’s professional responsibilities.
Technology Competency
Ethics Committee Comment
The New Hampshire Rule continues the prior New Hampshire Rule, expanding on the Model Rule to serve both as a guide and objective standard. The Model Rule standards of legal knowledge, skill, thoroughness, and preparation reasonably necessary are rejected as being too general.
[ABA comment [8] (formerly Comment [6]) requires that a lawyer should keep abreast of . . . the benefits and risks associated with relevant technology.” This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using.]