Averill v. Cox10/31/2000
rules of professional ethics that attorneys are duty-bound to "observe most scrupu ously are diametrically opposed to the code by which businessmen must live if they are to survive." State Bar of Arizona v. Arizona Land Title & Trust Co., 366 P.2d 1, 9 (Ariz. 1961). The Rules of Professional Conduct ensure that " he practice of law is not simply an occupation; it is a profession," Daigle v. City of Portsmouth, 137 N.H. 572, 576, 630 A.2d 776, 778 (1993), whose members seek "to avoid even the appearance of impropriety and, thus, strive to live by a higher standard of conduct than a layperson," Wehringer's Case, 130 N.H. 707, 719, 547 A.2d 252, 259 (1988) (quotations omitted).
Attorneys in this State are officers of the judicial branch of government who must secure and maintain membership in the bar association as a condition of the practice of law. See Petition of Tocci, 137 N.H. 131, 134, 624 A.2d 548, 549 (1993); Sup. Ct. R. 42A. The bar association was founded "to improve the administration of justice; to foster and maintain high standards of conduct, integrity, competence and public service on the part of those engaged in the practice of law; . . . to carry on a continuing program of legal research and education." In re Unification of the New Hampshire Bar, 109 N.H. at 264, 248 A.2d at 712. To foster these high standards, we require all lawyers admitted to practice law in this State to complete at least twelve hours of continuing legal education each year, including at least two hours in ethics. See Sup. Ct. R. 53.
We recognize that the disciplinary actions taken by this court against members of the bar, however effective they may be to deter unprofessional conduct, are not designed to compensate clients harmed by attorney misconduct. See Rousseau I, 128 N.H. at 572, 519 A.2d at 249 (Johnson, J., dissenting). Accordingly, if plaintiffs could bring claims under the Act, they might receive greater damages than they would otherwise receive. See RSA 358-A:10 (1995) (providing for award of either two or three times amount of damages in case of knowing or willful violation of RSA chapter 358-A). The statutory exemption to the Act, however, does not require that remedies available to aggrieved consumers under qualifying regulatory schemes be identical to those provided in the Act. See 358-A:3, I; Gilmore, 135 N.H. at 241-42, 604 A.2d at 559 (Horton, J., concurring). Rather, it is sufficient that the regulatory scheme protects consumers from fraud and deception in the marketplace "in a manner calculated to avoid the same ills as RSA chapter 358-A." Gilmore, 135 N.H. at 241-42, 604 A.2d at 559 (Horton, J., concurring) (emphasis added). We conclude that the disciplinary measures exercised by this court protect the public as effectively from deceptive or unfair actions in the marketplace as would double or treble damages under the Act. See RSA 358-A:10; RSA 311:8. In some cases, the penalty of license suspension or revocation may be more severe than double or treble damages, and thus constitute a superior deterrent to deceptive or unfair actions. For instance, an attorney found guilty of embezzling $1,000 from a client would be subject to a possible recovery of $3,000 under the Act; the same attorney may be subject to disbarment under the rules. See, e.g., Harrington's Case, 100 N.H. 243, 123 A.2d 396 (1956). Indeed, since 1990, we have exercised our disciplinary power to suspend twenty-eight members of the bar and to disbar twenty-seven others. See RSA 311:8 (Supp. 1999).
Furthermore, since we last addressed the issue of attorneys' liability under the Act in Rousseau I, we have enacted several rules to protect the public and promote confidence in the bar, see In re Proposed Public Prote
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