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Rule 5 – Appearance and Appointment of Counsel in Circuit Court-District Division and Superior Court

May 14, 2021 | Criminal Procedure, New Hampshire

(a) In any case where a person is arrested for a class A misdemeanor and/or felony and appears before a bail commissioner, prior to the defendant’s release or detention, the bail commissioner shall provide the defendant with oral and written notice that, if he or she is unable to afford counsel, counsel will be appointed prior to that arraignment, if requested, subject to the state’s right of reimbursement for expenses related thereto.

In any case where a person arrested for a class A misdemeanor is released with a written summons, the summons shall provide the defendant with written notice that, if he or she is unable to afford counsel, counsel will be appointed prior to the arraignment, if requested, subject to the state’s right of reimbursement for expenses related thereto. The summons shall also provide the person with written notice of the process for obtaining court-appointed counsel.

(b) In any case in which a defendant appears before a bail commissioner pursuant to paragraph a, the defendant shall also be provided with a Request for a lawyer form (financial statement) in order to apply for counsel at arraignment. The bail commissioner shall request the defendant to complete the Request for a lawyer form prior to his or her release or detention, in which case the bail commissioner shall forward the Request for a lawyer form to the court or the defendant may return the Request for a lawyer form directly to the court in which his or her arraignment is scheduled. If the defendant is financially eligible, counsel shall be appointed within 24 hours, excluding weekends and holidays, from the date of the receipt of the request by the court but not later than the filing of the complaint. The court shall inform appointed counsel immediately of the appointment (1) by telephone, facsimile or electronically if the defendant is detained or (2) by telephone, electronically or by first-class mail if the defendant is not detained.

Nothing herein shall prevent a defendant charged with a class A misdemeanor or felony and who is unable to afford counsel from requesting counsel at any time after arrest by completing a Request for a lawyer form and submitting it to the court having jurisdiction over the matter. The court shall act on the request for counsel within 24 hours, excluding weekends and holidays, from the date the request is submitted but not later than the filing of the complaint. If the defendant is financially eligible, the court shall inform counsel immediately of the appointment (1) by telephone, facsimile or electronically if the defendant is detained or (2) by telephone, electronically or by first-class mail if the defendant is not detained.

(c) In any case where the defendant is charged with a class A misdemeanor or felony and appears at arraignment without counsel, the court shall inform the defendant, in writing or on the record, of the offense with which he is charged and the possible penalties, of his or her privilege against self-incrimination, his or her right to be represented by counsel throughout the case, and that if he or she is unable to afford counsel, counsel will be appointed, if requested, subject to the state’s right to reimbursement for expenses related thereto.

Except as provided in subsection (f) or (g) of this rule, unless the defendant waives the presence of counsel at the arraignment in writing or on the record, the court shall take no other action at the arraignment aside from (1) advising the defendant of the charges against him or her and entering a pro forma plea of not guilty (or no plea in a felony case if filed in the circuit court) on the defendant’s behalf, and (2) informing the defendant that the issue of bail and any other issue requiring an adversary hearing will not be addressed until his or her counsel is present.

(d) If a defendant who is not detained indicates a financial inability to obtain counsel and a desire for appointed counsel, the court shall instruct the defendant to complete a Request for a lawyer form prior to leaving the courthouse and, if eligible, counsel shall be appointed no later than 24 hours from the date of the request. The court shall inform counsel of the appointment as soon as reasonably possible by telephone, facsimile or electronically. A bail hearing shall be scheduled at the request of the defendant.
(e) If a defendant who is detained indicates a financial inability to obtain counsel and a desire for appointed counsel, the court shall instruct the defendant to complete a Request for a lawyer form immediately and, if eligible, counsel shall be appointed immediately. The court shall inform counsel of the appointment immediately in person, if present, or by telephone or electronically if counsel for the detained defendant is unavailable at the court at the time of the arraignment. A bail hearing, at which the defendant’s counsel is present, shall be held within 24 hours of a written or oral request for same made by the defendant’s counsel, weekends and holidays excluded.
(f) Nothing in this rule shall prevent the court from reducing a detained or non-detained defendant’s bail or conditions of bail without his or her counsel present, but if the state opposes such reduction, it shall have the right to be heard in argument before the court makes a decision. Any such reduction shall be without prejudice to the defendant’s right to a further bail hearing, with counsel present, as specified in subsections (d) or (e) of this rule.
(g) Nothing in this rule shall prevent the court from increasing a detained or non-detained defendant’s bail or conditions of bail without the presence of counsel when the court makes a specific finding that such increase is necessary to reasonably assure the appearance of the defendant as required or that release without such increase will endanger the safety of the defendant or any other person or the community. Any such increase in bail or conditions of bail shall be without prejudice to the defendant’s right to a further bail hearing, with counsel present, as specified in subsections (d) or (e) of this rule.
(h)Withdrawal. Except as is provided in (i) below, no attorney shall be permitted to withdraw an appearance after the case has been assigned for trial or hearing, except upon motion granted by the court for good cause shown, and on such terms as the court may order. Any motion to withdraw filed by counsel shall set forth the reasons for the motion but shall be effective only upon approval of the court. A factor which may be considered by the court in determining whether good cause to withdraw has been shown is the client’s failure to pay for the attorney’s services. Whenever the court approves the withdrawal of appointed defense counsel, the court shall appoint substitute counsel forthwith and notify the defendant of said appointment.
(i)Withdrawal of Appointed Counsel. If appointed counsel in a criminal matter must withdraw due to a conflict of interest as defined by Rules 1.7(a), 1.9(a) and (b), and/or 1.10 (a), (b), and (c) of the New Hampshire Rules of Professional Conduct, counsel shall forward a Notice of Withdrawal to the court and substitute counsel shall be appointed forthwith. Court approval of a withdrawal shall not be required in this circumstance unless the Notice of Withdrawal is filed less than twenty days from the date of a trial, in which case court approval shall be required. Automatic withdrawal shall not be allowed and court approval shall be required if the basis for withdrawal is a breakdown in the relationship with the client, the failure of the client to pay legal fees, or any other conflict not specifically set forth in Rules 1.7(a), 1.9(a) and (b), and/or 1.10(a), (b), and (c) of the New Hampshire Rules of Professional Conduct.
(j)Automatic Withdrawal of Court-Appointed Counsel. In all criminal cases, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after sentence is imposed unless the sentence imposed was a deferred sentence or unless a post-sentencing motion is filed within said thirty-day period. Where a deferred sentence is imposed, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after the deferred sentence is brought forward or suspended. Where a post-sentencing motion is filed within thirty days after imposition of sentence, the appearance of counsel for the defendant shall be deemed to be withdrawn thirty days after the court rules on said motion. Provided, however, that in any criminal case in which an appeal to the supreme court is filed, trial counsel shall remain responsible for representing the defendant in the supreme court pursuant to Supreme Court Rule 32.
(k)Continuity of Counsel in Circuit and Superior Courts. Where a defendant in a criminal case has filed a financial affidavit and has been determined to be eligible for court-appointed counsel in the circuit court, the defendant shall not be required to file a new financial affidavit upon the appeal or transfer of the same case to the superior court unless facts are brought to the court’s attention indicating that there has been a substantial change in the defendant’s financial circumstances. Notwithstanding subsection (j) of this rule, when counsel appears for a defendant in a criminal case in the circuit court, said appearance shall be deemed to continue upon any appeal or transfer of the same case to the superior court and until the case is finally disposed of in the trial courts.
(l)Multiple Representation

(1) A lawyer shall not represent multiple defendants if such representation would violate the Rules of Professional Conduct.
(2) A lawyer shall not be permitted to represent more than one defendant in a criminal action unless:

(A) The lawyer investigates the possibility of a conflict of interest early in the proceedings and discusses the possibility with each client; and
(B) The lawyer determines that a conflict is highly unlikely; and
(C) The lawyer notifies the court of the multiple representation and a hearing on the record is promptly held. The court shall inquire into all relevant facts, including, but not limited to, the following:

(i) Evidence of the lawyer’s discussion of the matter with each client;
(ii) Evidence of each client’s informed consent to mulitple representation based on the client’s understanding of the entitlement to conflict-free counsel;
(iii) A written or oral waiver by each client of any potential conflict arising form the multiple repesentation; and
(D) The court finds by clear and convincing evidence that the potential for conflict is very slight.
(m) Counsel of Record; Bail. An attorney shall not post bail or assume any bail obligations in a case in which the attorney is counsel of record.

N.H. R. Crim. P. 5

Adopted effective January 1, 2016 in Strafford and Cheshire counties and July 1, 2016 in Belknap County; amended effective January 1, 2020.