83.5 Disciplinary Rules

DR-1 Standards for Professional Conduct

The Standards for Professional Conduct adopted by this court are the Rules of Professional Conduct as adopted by the New Hampshire Supreme Court, as the same may from time to time be amended by that court, and any standards of conduct set forth in these rules. Attorneys who are admitted or permitted to practice before this court shall comply with the Standards for Professional Conduct, and the court expects attorneys to be thoroughly familiar with such standards before appearing in any matter.  Attorneys prosecuting criminal cases are also held to the standards of conduct established by law for prosecutors.

DR-2 Attorneys Convicted of Crimes or Arrested for Crimes Involving a DeadlyWeapon.

(a) Any attorney permitted to practice before this court who is convicted of a felony or misdemeanor in any court of the United States, the District of Columbia, or any state, territory, commonwealth or possession of the United States, shall inform the clerk of such conviction by filing a certified copy of the judgment of conviction within twenty-one (21) days from the date of conviction.  Any attorney permitted to practice before this court who is arrested for any offense involving the use of a firearm or other deadly weapon shall inform the clerk of such arrest by filing a copy of the complaint(s), indictment(s) or other charging document(s) related to the arrest within twenty-one (21) days of the date of the arrest.

(b) If a reported conviction involves a "serious crime" as hereafter defined, the court shall enter an order immediately suspending that attorney, whether the conviction resulted from a plea of guilty or nolo contendere, or from a verdict after trial or otherwise, and regardless of the pendency of any appeal, until final disposition of any disciplinary proceeding that may be commenced upon such conviction.  A copy of the suspension order shall immediately be served upon the attorney as provided in DR-9 of these rules.  Upon good cause shown, the court may set aside such order when it appears in the interest of justice to do so.

(c) The term "serious crime" shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves a firearm or other deadly weapon, criminal threatening, false swearing, misrepresentation, fraud, willful failure to file or filing false income tax returns, deceit, bribery, extortion, misappropriation, theft or an attempt or a conspiracy or solicitation of another to commit a "serious crime."

(d) A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based upon the conviction.

(e) Upon the filing of a copy of the complaint(s), indictment(s) or other charging document(s) related to an arrest involving the use of a firearm or other deadly weapon, the Court shall inform the office of the United States Marshal and the Marshal’s Office  may immediately suspend or revoke any “Bar card” permitting the attorney to access the Courthouse without inspection.

(f)  Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious crime, the court may, in addition to suspending that attorney in accordance with the provisions of this rule, (i) refer the matter to special counsel for the institution of a disciplinary proceeding before one or more judges of the court in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be brought to final hearing until all appeals from the conviction are concluded; or (ii) stay the imposition of final discipline pending the outcome of a disciplinary proceeding in another court and pending the issuance of an order to show cause pursuant to DR-3(b)(2).

(g) Upon the filing of a certified copy of a judgment of conviction of an attorney for a crime not constituting a "serious crime," the court may refer the matter to special counsel for whatever action counsel may deem warranted, including the institution of a disciplinary proceeding before the court provided, however, that the court may in its discretion make no reference with respect to convictions for minor offenses.

(h) An attorney suspended under the provisions of this rule will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction of a serious crime has been reversed but the reinstatement will not terminate any disciplinary proceeding then pending against the attorney, the disposition of which shall be determined by the court on the basis of all available evidence pertaining to both guilt and the extent of discipline to be imposed.

(§ (d) amended 1/1/99; § (a) added, former §§ (a)-(f) relettered accordingly, and new §§ (b), (c) and (e) amended 12/1/11; title and §§ (a) and (b) amended, new § (e) added, former § (e) amended and relettered, former §§ (g) and (h) relettered 12/1/13)

DR-3 Discipline Imposed By Other Courts

(a) Any attorney admitted to practice before this court shall, upon being subjected to public discipline by any other court of the United States or the District of Columbia, or by a court of any state, territory, commonwealth or possession of the United States, promptly inform the clerk of this court of such action.

(b) Upon the filing of a certified or exemplified copy of a judgment or order demonstrating that any attorney admitted to practice before this court has been disciplined by another court, this court may forthwith issue a notice directed to the attorney containing:

  (1) a copy of the judgment or order from the other court; and

  (2) an order to show cause directing that the attorney inform this court within thirty (30) days after service of that order upon the attorney, personally or by mail, of any claim by the attorney predicated upon the grounds set forth in subsection (d) hereof that the imposition of the identical discipline by the court would be unwarranted and the reasons therefor.

(c) In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this court shall be deferred until such stay expires.

(d) Upon the expiration of thirty (30) days from service of the notice issued pursuant to the provisions of DR-3(b)(2) above, this court shall impose the identical discipline unless the respondent-attorney demonstrates, or this court finds, that upon the face of the record upon which the discipline in another jurisdiction is predicated it clearly appears:

  (1) that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

  (2) that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this court could not, consistent with its duty, accept as final the conclusion on that subject; or

  (3) that the imposition of the same discipline by this court would result in grave injustice; or 

  (4) that the misconduct established is deemed by this court to warrant substantially different discipline. Where this court determines that any of said elements exist, it shall enter such other order as it deems appropriate.

(e) In all other respects, a final adjudication in another court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this court.

(f) This court may at any stage appoint special counsel to prosecute the disciplinary proceedings.

(§ (b) amended 1/1/03)

DR-4 Disbarment on Consent or Resignation in Other Courts.

(a) Any attorney admitted to practice before this court who shall be disbarred on consent or resign from the bar of any other court of the United States or the District of Columbia or from the bar of any state, territory, commonwealth or possession of the United States while an investigation into allegations of misconduct is pending, shall, upon the filing with this court of a certified or exemplified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this court and be stricken from the roll of attorneys admitted to practice before this court.

(b) Any attorney admitted to practice before this court shall, upon being disbarred on consent or resigning from the bar of any other court of the United States or the District of Columbia or from the bar of any state, territory, commonwealth or possession of the United States while an investigation into allegations of misconduct is pending, promptly inform the clerk of this court of such disbarment on consent or resignation.

DR-5 Misconduct

(a) For misconduct defined in these rules, and for good cause shown, and after notice and opportunity to be heard, any lawyer admitted or permitted to practice before this court may be disbarred, suspended from practice before this court, or subjected to such other public or private disciplinary action as the circumstances may warrant.

(b) Acts or omissions by a lawyer admitted or permitted to practice before this court, individually or in concert with any other person or persons, which violate the Standards for Professional Conduct adopted by this court shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.

DR-6 Disciplinary Proceedings

(a) When misconduct or allegations of misconduct which, if substantiated, would warrant discipline of an attorney admitted or permitted to practice before this court shall come to the attention of this court, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these rules, the judge may follow either or both of the following procedures:

  (1) refer the matter to any appropriate disciplinary agency with jurisdiction over said attorney with a request that the agency report its actions to the court provided, however, that in addressing any misconduct matter the court may consider such agency's actions but shall not be bound thereby;

  (2) appoint one or more members of the bar of this court to act as special counsel to investigate the matter, to prosecute the matter in a formal disciplinary proceeding under these rules, to make such other recommendation as may be appropriate, or to perform any other functions required by the court in its order of appointment.

(b) Should special counsel conclude after investigation and review that a formal disciplinary proceeding should not be initiated against the respondent-attorney because sufficient evidence is not present, or because there is another proceeding pending against the respondent-attorney, the disposition of which in the judgment of the counsel should be awaited before further action by this court is considered, or for any other valid reason, counsel shall file with the court a recommendation for disposition of the matter, setting forth the reasons therefore.

(c) To initiate formal disciplinary proceedings, special counsel shall, upon a showing of probable cause, obtain leave of this court to institute a disciplinary proceeding by filing a complaint against the respondent-attorney setting forth the allegations of misconduct. If leave of the court is obtained, the complaint and summons shall be promptly served as provided in DR-9.

(d) The respondent-attorney shall file an answer to the complaint within thirty (30) days after service. If any issue of fact is raised in the answer or if the respondent- attorney wishes to be heard in mitigation, this court shall set the matter for prompt hearing before one or more judges of this court provided, however, that if the disciplinary proceeding is predicated upon the complaint of a judge of this court, the hearing shall be conducted before a panel of three judges of this court appointed by the Chief Judge or, if there are less than three judges of this court eligible to serve or if the Chief Judge is the complainant, by the Chief Judge of the Court of Appeals.

DR-7 Disbarment on Consent While Under Disciplinary Investigation or Prosecution

(a) Any attorney admitted to practice before this court who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may consent to disbarment but only by delivering to this court an affidavit stating that the attorney desires to consent to disbarment and that:

  (1) the attorney's consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting;

  (2) the attorney is aware that there is a presently pending investigation or proceeding involving allegations that there exist grounds for the attorney's discipline, the nature of which the attorney shall specifically set forth;

  (3) the attorney acknowledges that the material facts so alleged are true; and

  (4) the attorney so consents because the attorney knows that if charges were predicated upon the matters under investigation or if the proceedings were prosecuted, the attorney could not successfully defend himself.

(b) Upon receipt of the required affidavit, this court shall enter an order disbarring the attorney.

(c) The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of this rule shall not be publicly disclosed or made available for use in any other proceeding except upon order of this court.

DR-8 Reinstatement

(a) After disbarment or suspension. An attorney suspended for three (3) months or less shall be automatically reinstated at the end of the period of suspension upon the filing with the court of an affidavit of compliance with the provisions of the order of suspension. An attorney suspended for more than three (3) months or disbarred may not resume practice until reinstated by order of this court.

(b) Time of application following disbarment. A person who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least five (5) years from the effective date of the disbarment. A lawyer who has been suspended for more than six (6) months may not apply for reinstatement until six (6) months before the period of suspension has expired.

(c) Hearing on application. Petitions for reinstatement by a disbarred or suspended attorney under this rule shall be filed with the Chief Judge of the court. Upon receipt of the petition, the Chief Judge may (i) reinstate the petitioner on the basis of the petition itself, (ii) refer the petition to special counsel, and/or (iii) assign the matter for hearing before one or more judges of this court provided, however, that if the disciplinary proceeding was predicated upon the complaint of a judge of this court, the hearing shall be conducted before one or more other judges of this court or, if there are not judges of this court eligible to serve, before a district judge of this Circuit appointed by the Chief Judge of the Court of Appeals. If the assigned judge orders a hearing, the hearing shall be scheduled within thirty (3) days of the filing of the petition for reinstatement.

(d) Standard for reinstatement. An attorney petitioning for reinstatement must demonstrate by clear and convincing evidence that he or she has the moral qualifications, competency, and learning in the law required for admission to practice law before this court and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice or subversive of the public interest.

(e) Duty of special counsel. In all proceedings upon a petition for reinstatement, cross-examination of the witnesses of the respondent-attorney and the submission of evidence, if any, in opposition to the petition shall be conducted by counsel.

(f) Deposit for costs of proceeding. Petitions for reinstatement under this rule shall be accompanied by an advance cost deposit in an amount to be set from time to time by the court to cover anticipated costs of the reinstatement proceeding.

(g) Conditions of reinstatement. If the petitioner is found unfit to resume the practice of law, the petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the judgment shall reinstate him or her, provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings and upon the making of partial or complete restitution to parties harmed by the petitioner whose conduct led to the suspension or disbarment. Provided further, that if the petitioner has been suspended or disbarred for five (5) years or more, reinstatement may be conditioned, in the discretion of the judge or judges before whom the matter is heard, upon the furnishing of proof of competency and learning in the law, which proof may include certification by the bar examiners of a state or other jurisdiction of the attorney's successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment.

(h) Successive petitions. No petition for reinstatement under this rule shall be filed within one (1) year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.

(§ (a) amended 1/1/03; § (c) amended; § (d) added, former §§ (d)-(g) relettered 12/1/13)

DR-9 Service of Complaint, Papers and Other Notices

Upon the filing of a complaint instituting a disciplinary proceeding, the clerk shall forthwith issue a summons and deliver the summons and a copy of the complaint to the United States Marshal for service in the manner provided in Fed. R. Civ. P. 4(e)(2) or, if such service cannot be made, by registered or certified mail addressed to the respondent-attorney at the attorney's last known address. The summons shall direct the respondent-attorney to serve an answer within thirty (30) days after service. An order of suspension shall be served in the same manner as a summons and complaint instituting a disciplinary proceeding. Service of any other papers or notices required by these rules shall be deemed to have been made if such paper or notice is addressed to the respondent-attorney at the attorney's last known address or to counsel or the respondent's attorney at the address indicated in the most recent pleading or other document filed by them in the course of any proceeding.

DR-10 Duties of the Clerk

(a) Upon being informed that an attorney admitted to practice before this court has been convicted of any crime, the clerk of this court shall determine whether the clerk of the court in which such conviction occurred has forwarded a certificate of such conviction to this court. If a certificate has not been so forwarded, the clerk of this court shall promptly obtain a certificate and file it with this court.

(b) Upon being informed that an attorney admitted to practice before this court has been subjected to discipline by another court, the clerk of this court shall determine whether a certified or exemplified copy of the disciplinary judgment or order has been filed with this court, and, if not, the clerk shall promptly obtain a certified or exemplified copy of the disciplinary judgment or order and file it with this court.

(c) Whenever it appears that any person convicted of any crime or disbarred or suspended or censured or disbarred on consent by this court is admitted to practice law in any other jurisdiction or before any other court, the clerk of this court shall, within fourteen (14) days of that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the other court a certificate of the conviction or a certified exemplified copy of the judgment or order of disbarment suspension, censure, or disbarment on consent, as well as the last known office and residence addresses of the defendant or respondent.

(d) The clerk of this court shall, likewise, promptly notify the National Lawyer Regulatory Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before this court.

(§ (d) amended 1/1/97; § (c) amended 12/1/09)

DR-11 Public Access and Confidentiality

(a) Publicly Available Records

All filings, orders, and proceedings involving allegations of misconduct by an attorney shall be public, except:

(1) When the court, on its own initiative or in response to a motion for protective order, orders that such matters shall not be made public. While a motion for protective order is pending, the motion and any objection to the motion will be filed under seal at Level I in accordance with LR 83.12, and

(2) Any filing, proceeding, or order issued pursuant to DR–6 prior to the initiation of formal disciplinary proceedings under DR-6(c).

(b) Respondent’s Request

The respondent attorney may request that the court make any matter public that would not otherwise be public under this rule.

History

(Retitled, text of rule stricken and replaced with §§ (a) and (b) 1/1/01; § (a) amended 12/1/13)

DR-12 Jurisdiction

Nothing contained in these rules shall be construed to deny to this court such powers as are necessary for the court to maintain control over proceedings conducted before it, such as proceedings for contempt under Title 18, United States Code or under Rule 42 of the Federal Rules of Criminal Procedure.