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Bar Journal - June 1, 2002

'Impersonating a Lawyer?'1
History of NH's Unauthorized Practice of Law Statute


By:
IMPERSONATING A LAWYER"

The New Hampshire Bar Association has been sued. One Mr. Theodore Kamasinski has asked the Superior Court for a declaratory judgment that he is not engaged in the unauthorized practice of law.3 One of his arguments, advanced in a variety of pleadings and also made before the Legislature, is historically based. He claims that the right to be a lay representative existed at common law, and that due to the 1967 repeal of New Hampshire's 1935 unauthorized practice of law amendments, his common law right either remains or was resuscitated.

Along with Joseph McDowell of Manchester, I represent the Bar Association in that suit. Because the case is of general interest to the bar, I am presenting my preliminary research here. The first question is, to what extent does the common law, whatever it says, apply in New Hampshire? Second, to what extent does the common law provide a right to practice law by a person who has not been admitted to the bar? Third, what is the history and content of New Hampshire law concerning who may practice law? And fourth, what is the effect, if any, of the 1967 repeal of a portion of New Hampshire's unauthorized practice statute?

What I found in my research is that for over 700 years admission to the bar has been required in order for a person to commonly practice law, and that this substance of the common law applies in this State. New Hampshire has a 300-year unbroken chain of statutes requiring admission to practice, beginning with colonial enactments regulating lawyers and continuing with today's RSA 311. Finally, I found that in 1935 the Legislature grafted onto New Hampshire's practice of law statute several amendments augmenting enforcement of unauthorized practice, and that their repeal in 1967 left unchanged the underlying statute. Based on this, I conclude that there never was a common law right for a non-lawyer to commonly practice, and that the 1967 repeal cannot be construed to create one.

Related issues that are not addressed in this article include the right of access to the courts,4 a party's right to have representation,5 a party's right to self-representation,6 a party's right to non-lawyer representation in criminal7 and civil cases,8 what constitutes the practice of law,9 and separation of powers issues concerning whether it is the Legislature's role or courts' prerogative to regulate attorneys.10

I. RECEPTION OF THE COMMON LAW IN NEW HAMPSHIRE

The American Revolution comprised two conflicting impulses. It was clearly anti-British; yet the colonists intended no break with the common law insofar as it fit their circumstances.11 The colonists believed the common law guaranteed them certain rights, and a major complaint about English rule was that the crown was not applying existing common law in the colonies. The second half of the Declaration of Independence, for example, contains a list of these complaints.

When the colonies won the Revolution, there was an immediate need for law. The war caused an economic depression, making enforcement of debt a serious concern. Likewise, because the war surely did not deter criminals, crime could not be addressed without a body of law.

When a dependency severs its formal connection with the mother country - irrespective of the century in which such severance occurs - the act of independence can neither eradicate the past nor solve all problems of the future. In the late eighteenth and early nineteenth centuries, the United States of America discovered that independence from Great Britain in itself did not abolish the need for rules and regulations by which men could anticipate with some degree of certainty the consequences of particular actions. Wholesale adoption of such English statues as were suited to their condition offered a solution to the need for a body of laws. At the same time it avoided the need to draft and enact a comprehensive body of legislation at the moment the newly independent jurisdictional entities were faced with a wide assortment of internal and external problems.

As colonists, the citizens of these newly independent states had clamored for the untrammeled use of the English statutes and the common law and had made much of Great Britain's refusal to concede such use. After 1776 they were free to use, adapt, or reject the statues and the common law which they had claimed as their birthright and heritage.12

All the newly-minted states went about this somewhat differently, but all eventually "received" the English common law. English statutes enacted after July 4, 1776, were universally deemed too late.13 Some of the common law simply did not fit the states' circumstances. In Cole v. Lake Company,14 for instance, the New Hampshire Supreme Court in 1874 determined that the word "heirs" in a real estate conveyance is not necessary in New Hampshire because the common law's requirement of the word was based in feudal tenures in land, which would work a "monstrous absurdity"15 if applied here. Rejecting the common law was not easy for the court; it took ten pages to demonstrate why it should not be followed.16

Despite occasional rejections, the great bulk of English judge-made and statutory law was received everywhere.17 In New Hampshire, the issue was resolved quickly by the original 1783 constitution, which provided then (and still does now):

All the laws which have heretofore been adopted, used, and approved, in the province, colony, or state of New Hampshire, and usually practiced on in the courts of law, shall remain and be in full force, until altered and repealed by the legislature; such parts thereof only excepted, as are repugnant to the rights and liberties contained in this constitution.18

The New Hampshire Supreme Court repeatedly encountered the reception issue,19 and in most cases adopted the common law rule.20 The most complete statement of New Hampshire's reception was in State v. Rollins, in 1837.

There seems to be no reason to doubt . . . that the body of the English common law, and the statutes in amendment of it, so far as they were applicable to the government instituted here, and to the condition of the people, were in force here, as a part of the law of the province, except where other provision was made by express statute, or by local usage. And this so continued until the period of the revolution. . . . The declaration of independence was read and published in the assembly in September, 1776, and the colony assumed the name and style of the State of New Hampshire; and in April 1777, a formal act passed, 'for the reestablishing the general system of laws heretofore in force in this state.' . . . In this state of things the constitution was adopted, in 1783, containing the provision . . . that 'all the laws which have heretofore been adopted used and approved, in the province, colony, or state of New Hampshire, and usually practised on in the courts of law, shall remain and be in full force until altered and repealed by the legislature. . . . That the body of the common law, so far as it existed at this time in the state, was within the meaning and intent of this provision, is evident from several considerations. . . . It seems clear to us that this provision of the constitution was intended as a substitute for the statutory provision of 1777.21

The Rollins Court thus concluded that the common law was in force in New Hampshire. The most recent case raising the issue was Bellows v. Page, in 1936, which recognized that the common law statute of uses extends to personalty as well as real property.22 In Bryant's Case,23 the Court noted that the common law duties of lawyer to client apply in New Hampshire.

Modern lawyers might welcome the knowledge that although the common law's substance was received in New Hampshire, its procedure was not. As recently as 1955, in Boston, Concord & Montreal Railroad v. State, the New Hampshire Supreme Court wrote:

[W]e regard the ignorance of the first colonists of the technicalities of the common law as one of the most fortunate things in the history of the law; since, while the substance of the common law was preserved, we happily lost a great mass of antiquated and useless rubbish, and gained in its stead a course of practice of admirable simplicity.24

It is thus beyond doubt that the "substance of the common law," insofar as it is relevant, applies in New Hampshire.

II. COMMON LAW REGULATION OF THE PRACTICE OF LAW IN PRE-COLONIAL ENGLAND

The practice of law has been regulated for a long, long time. The history of lawyers, in England, in colonial times, and then in the United States, is very well (perhaps narcissistically) documented in both general histories and biographies of particular lawyers and judges.

In England, before the 13th century, a litigant was expected to plead a case in person. A person's reputation in the community was considered the best evidence, and the notion of having someone else speak for a disputant was unknown and would have been an anathema to the existing system of justice. This presented problems for the crown and other large feudal landholders, however, because they could not be in all courts at once.25 They therefore appointed counsel, by warrant or writ, to represent them. Once holding the office, it was logical for the lawyers to be hired by other disputants needing their help in navigating the strict formalities of common law pleading.26

There thus grew gradually by the 13th century, a class of men versed in legal procedure and available to represent litigants, although a party generally still had to personally appear. These lawyers were then, as now, viewed with some suspicion, and for that reason were regulated from early on. It was accepted then that these men "derive[d] their right to practise from the king either mediately or immediately."27 The power of appointment was eventually "placed under the control of the justices, and apparently a monopoly was secured for those who had been thus appointed."28

The first known regulation of attorneys was in 1292. The king sent a royal writ to the judges of the Court of Common Pleas, that they should appoint a certain number of attorneys most noted for their learning and skill, who would serve the court and the people, and that those chosen only and no others should practice.29 The king even specified the maximum number of practicing lawyers ("seven-score"), though later that was left to the discretion of the court.30 While the authority for and meaning of the writ is open to question,31 it is apparent that the requirement of being admitted to practice and the prohibition against unauthorized practice are contemporaneous with the existence of the legal profession itself.32

A hundred years later, the regulation was extended. A 1402 statute provided "that all the attornies shall be examined by the justices, and by their discretions their names put in the roll, and they that be good and virtuous, and of good fame, shall be received and sworn well and truly to serve in their offices . . . and the other attornies shall be put out."33

Apparently there were too many lawyers, and 50 years later an act of Parliament provided "that there had been used formerly six or eight attorneys only, for Suffolk, Norfolk, and Norwich together; that this number was now increased to more than eighty, most of whom being not of sufficient knowledge, came to fairs, . . . inciting the people to suits for small trespasses, . . . ; wherefore there shall be hereafter but six for Norfolk, six for Suffolk, and two for the city of Norwich."34

Nonetheless the bar grew: The practice of law, and legal education in the Inns of Court, became fully established. In 1606, Parliament provided that admission to practice as an attorney in the courts was limited to those who were members of the Inns of Court and who were "well practiced and skilled and of an honest disposition."35

Even if these statutes merely "were directed at the incompetence and abuses of attorneys,"36 and not at the practice of law generally, it nonetheless appears that at common law, admission to the bar was required, and without being admitted a person was not allowed to practice. There is no suggestion anywhere that non-attorneys had a right to commonly represent others in court.37 This then is the substance of the common law that was received in New Hampshire.

III. NEW HAMPSHIRE STATUTES REGULATING THE PRACTICE OF LAW FROM COLONIAL TIMES THROUGH THE 19thCENTURY

In 1686, a hundred years before it became a state, the provincial assembly enacted New Hampshire's first law regulating attorneys. It provided:

That such as from time to time shall be allowed and sworn Attournyes by the Council and County Courts (and they only to receive Fees and plead in any of His Majesties Courts,) and no other presume to offer Pleading, save that every man is allowed to plead his own Case.38

This is the beginnings of what is still New Hampshire's policy: continuing the English common law right of self-representation, and prohibiting any except "sworn Attournyes" from practice.

In 1714, with the Revolution still 75 years in the future, New Hampshire's provincial assembly extended its earlier legislation, this time explicitly prescribing the oath that must be taken by a lawyer "commonly" practicing, and excluding from practice any who had not been so admitted. The statute provided:

Be it Enacted by his Excellency the Governour Council and Representatives, Convened in General Assembly and by the Authority of Same, that the plaintiffe or Defendant in any Suit may plead or Defend his Cause by himself in his proper person or with the Assistance of Such other person as he shall procure.

And Be it further Enacted that all Attornyes commonly practiseing in any of the Courts of Justice within this province shall be under Oath which Oath shall be Administered to them by the Clerk in open Court before the Justices of the Same at the time of their being Admitted to Such practice in the Tenour following (that is to Say)

You shall doe noe falsehood nor consent to any to be done in the Court, and if you Know of any to be done you shall give Knowledge thereof to the Justices of the Court, or some of them, that it may be Reformed; you shall not wittingly or willingly promote, Sue, or procure to be Sued any ffalse or Unlawful Suit, nor give aid to consent to the Same. You shall delay noe man for Lucre or Malice, but you shall use your Selfe in the office of an Attorny within the Court, according to the best of your Learning and discretion and with all good ffidelity as well to the Court as your Client. Soe help you God.39

Following the Revolutionary War,40 and the adoption of both the New Hampshire and Federal constitutions, New Hampshire became a State. Shortly after, in 1791, the Legislature reenacted the 1714 statute with mostly stylistic changes.41

In New Hampshire, as in other colonies,42 the courts prescribed the qualifications for being admitted.43 As part of the Jacksonian movement, which held that everyone should be able to join the ranks,44 in 1838 the New Hampshire Legislature amended the statute45 and lifted the court's education and experience requirements.46

Never dropped, however, was the requirement that in order to practice an attorney must take an oath and be admitted to the bar.47

The statute was codified in 1842 (along with the rest of New Hampshire law) as Chapter 177.48 With the 1842 codification, the statute was put in its modern form and for that reason it is worth setting forth in full:

Section 1. Every party in any cause, prosecution or suit may appear, plead, pursue or defend in his proper person or by any citizen of good character.

Sec. 2. Any citizen of the age of twenty-one years, of good moral character, on application to the superior court, shall be admitted to practice as an attorney.

Sec. 3. Any person who shall have been admitted an attorney or counselor of the highest judicial court of any other State of which he was an inhabitant, shall be admitted to practice as an attorney, upon satisfactory evidence of his good character.49

Sec. 4. Every attorney admitted as aforesaid, shall be qualified to practice as an attorney in any court of this State, upon filing a copy of the record of his admission with the clerk.

Sec. 5. Every attorney admitted as aforesaid, shall take and subscribe in open court the oaths to support the constitution of the United States and of this State, and the oath of office in the following form:

"You solemnly swear 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 shall delay no man for lucre or malice, but shall 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 your client. So help you God."

Sec. 6. No person shall be permitted commonly to practice as an attorney in court, unless he has been admitted by the court and taken the oath aforesaid.

Sec. 7. If an attorney shall be charged with any fraud or malpractice, or any contempt of court, the court shall inquire into such offence in a summary manner, and if found guilty, he shall be suspended or removed from office.

Sec. 8. No person shall be admitted to prosecute or de fend, as an attorney, any cause in which he has acted as judge.50

In 1853 the statute was re-codified (along with the rest of New Hampshire law) in identical form, as Chapter 187.51 In 1867, the law was again recodified, with some minor changes in language and punctuation, and was renumbered Chapter 199.52

In 1872 the Legislature reinserted what it had deleted a half-century before, requiring that one need "suitable qualifications" to be admitted to the bar.53 The statute was recodified in 1878 and again in 1891, and renumbered Chapter 21854 and then Chapter 213.55

Finally, in 1926, the statute was again re-codified as Chapter 325, though this time the section numbers were switched around, and a new section was added concerning the effect of suspension and disbarment.56

The important point here is that the resulting 1926 statute was not substantially different from the law as it had existed for several hundred years: New Hampshire law has, from its inception, provided that parties can appear pro se or with an attorney, that to practice "commonly" a person must be admitted, and to be admitted the person has to have taken the attorney's oath which is prescribed and which "has remained without substantial change since the time of Lord Holt."57

IV. ANALYSIS OF NEW HAMPSHIRE'S PRACTICE OF LAW STATUTE BEFORE THE 1935 AMENDMENTS

In 1935, the Legislature added three new sections. Because the three are of interest here, it is worth stopping and analyzing the statute as it existed in 1926, before the 1935 amendments.

The 1926 codification, PL 325, contained nine sections.

Section 1: Right to Appear

Section 1 of the 1926 statute, "right to appear," provided that a party may appear in "his proper person." This is an extension of the ancient common law rule, which demanded that a party must appear personally. The statute also allows a party to appear by a "citizen of good character." This is a continuation of colonial practice, which allowed a party to be represented provided that the representative was of good character.

Section 2: Admission to Practice

Section 2 of the statute, "admission to practice," allowed a citizen of "good moral character and suitable qualifications"58 to apply to the Supreme Court to practice as an attorney. This is a restatement of the common law rule, in which a lawyer had to be admitted by the courts in which he practiced.

Section 3: Admission to Practice, Without Examination

Section 3 of the statute allowed a lawyer from another state to practice in New Hampshire without taking an examination. This section was added during the 1843 codification, and was repealed in 1981.

Section 4: Powers

Section 4 allowed an admitted attorney to practice in any court upon filing with the clerk a copy of the lawyer's record of admission.59 The common law rule, continued in New Hampshire, was that each court had the authority to regulate the attorneys who practiced in that court, and that a lawyer had to be admitted in each court in which he practiced. With the general centralization over the years of attorney regulation by the Supreme Court, this section was an anachronism when it was repealed in 1981.60

Section 5: Limitation

Section 5 prohibited a person from acting as an attorney in any case in which he has acted as a judge, in accord with the common law.

Section 6: Oath

Section 6 contained the oath, which "[e]very attorney admitted to practice shall take." The oath is substantially identical to that first specified in 1714.

Section 7: Oath, When Required

Section 7 provided that "[n]o person shall be permitted commonly to practice as an attorney in court unless he had been admitted by the court and taken the oath aforesaid."

That this is a continuation of the common law rule there can be no doubt. In Ricker's Petition, Chief Justice Doe commented that "no one should commonly practice as an attorney without the mental and moral qualifications adequate for a business in which the administration of justice is deeply concerned, and in which his unfitness would naturally bring serious disaster upon his employers and himself. These rules of our common law of procedure have been affirmed by the legislature."61

As noted, section 1 of the statute allowed a party to be represented by any person. The subject-pronoun in section 1 is "a party" and set forth the representational rights of parties. Section 7, however, was directed toward attorneys commonly practicing. This distinction eliminates the possibility that there is a loophole in the statutory scheme which allows any person, not a lawyer, to commonly practice.

The word "commonly" first appeared in New Hampshire's 1714 statute, under which "all Attornyes commonly practiseing . . . shall be under Oath . . . at the time of their being Admitted." Section 7 continues this: Commonly practicing without having been admitted is not "permitted."

Section 8: Disbarment

Section 8 required that a court inquire into any allegations of "fraud, malpractice or contempt" against an attorney practicing before it. This is a continuation of the common law rule that an attorney must be of good character, and that courts have the power to regulate attorneys who appear before them.

Section 9: Effect of Disbarment

Section 9 provided that the consequence of being disbarred or suspended is that a person may not practice law, thus restating the 1402 common law rule that attorneys not sufficiently "good and virtuous . . . shall be put out." Under the statue, any pleading filed by a suspended attorney is void.62

V. 1935 AMENDMENTS AND THE UNAUTHORIZED PRACTICE OF LAW

In 1935 the entire statute was re-codified as Chapter 381,63 and as noted above, three new sections were added. The three, collectively, may be termed New Hampshire's unauthorized practice of law amendments. Together the amendments criminalize practice by non-attorneys and corporations, and provide mechanisms for enforcement.

Section 10: Unauthorized Practice Prohibited

The section 10 amendment, in a single endless sentence, made it a crime for a non-attorney to practice law (punishable by imprisonment), and also attempted a definition of the unauthorized practice of law. (This is the sentence that, because it was repealed in 1967, forms the basis for Mr. Kamasinski's argument.) It provided:

Whoever has been so removed and continues thereafter to practice law, or to receive any fee for his services as an attorney or counselor at law, or whoever, not having been lawfully admitted to practice, represents himself to be an attorney or counselor at law, or to be lawfully qualified to practice in the courts of the state, or holds himself out or represents or advertises himself as having authority or power in behalf of others to procure the settlement of claims for damages to person or property, or whoever, not being admitted to practice, solicits or procures for himself or another, the management or control of any such claim, or authority to adjust or bring suit to recover for the same, or solicits for himself or another from a person accused of a crime or his representative the right to defend the accused person, shall for a first offense be fined not more than one hundred dollars or imprisoned for not more than six months and for a subsequent offense shall be fined not more than five hundred dollars or imprisoned for not more than one year.64

Section 11: Practice by Corporations Prohibited

The section 11 amendment, set forth in full in the endnotes,65 was substantially similar to the current RSA 311:11, and made it a crime for corporations to practice law.66

Section 12: Enforcement

The section 12 amendment, also set forth in the endnotes,67 gave courts equity jurisdiction to enjoin the violations of unauthorized practice by individuals and corporations which were banned by the other two new sections. It provided that enforcement proceedings could be brought by a bar association, the attorney general, or by any three New Hampshire attorneys. In 1967 the Legislature repealed section 12 and enacted the current enforcement provisions now contained in the "Model Act Providing Remedies for the Unauthorized Practice of Law," codified in RSA 311:7-a through 7-f, which are set forth in the endnotes.68

VI. MOTIVATIONS FOR THE 1935 UNAUTHORIZED PRACTICE OF LAW AMENDMENTS

The three 1935 amendments (sections 10, 11, and 12), reflect a nation-wide trend during the 1930s.69 There is an enormous body of literature from about the 1880s to the 1930s advocating regulation of unauthorized practice of law,70 and a variety of reasons were given for its wisdom.

In the 1930s, the 50-year-old American Bar Association, which had been up to then largely a social organization, began advocating for unauthorized practice statutes, an idea popular among established members of the bar.71 In 1931 the New Hampshire Bar Association set up its Unauthorized Practice of Law Committee to watch-dog unauthorized practice.72 Laws like New Hampshire's 1935 unauthorized practice amendments were enacted in most jurisdictions around the same time, but as it was during the depression, these efforts were roundly criticized as being a selfishly motivated veiled quota system.73 Although New Hampshire's unauthorized practice amendments were probably never effectively enforced,74 in other jurisdictions actions against non-lawyers increased dramatically.75

There was, at the time, a significant amount of lay encroachment on portions of lawyers' business in New Hampshire and elsewhere.76 It is important to note, however, that the encroachment generally did not involve the traditional activity of attorneys - appearance before courts and judges. Most of the non-lawyers' work, while extensive in scope, was limited to the newer transactional practice.77 Thus, the crack-down on the unauthorized practice of law appears to have been aimed at non-lawyers performing the "unlitigated type of service."78

The most visible encroachment was practice by corporations established for the purpose of practicing law; as with any other business corporation, they were organized with stockholders and directors.79 They employed lawyers and non-lawyers, who practiced in many areas. This arrangement gave rise to concerns about whose interests - clients' or shareholders' - were being given priority. A writer in the Yale Law Journal commented that the law corporations "have neither soul nor conscience, and owe allegiance to no code of ethics or morals, and . . . have no other cause for existence than the accumulation of wealth for directors and stockholders."80

These encroachments no doubt provided an economic motivation for the nation-wide unauthorized practice movement; but because the standards for admission to the bar at the time were so low, it is hard to conclude that the depression-era statutes were for that reason alone.81 It was a time when many trades, not before regulated, required licenses for the first time.82 There was, moreover, a general and legitimate push to raise lawyer standards, both educational83 and ethical.84 There was also a legitimate professional idealism motivating regulation: 85 even "[a]t the lowest ebb in standards of education and admission, lawyers in the United States never wholly lost the tradition . . . that the practice of the law involved at least formal concession to standards of conduct which specially bound the bar."86

VII. 1967 REPEAL OF THE UNAUTHORIZED PRACTICE OF LAW AMENDMENTS

Whatever the motivations for their existence, New Hampshire's unauthorized practice amendments were on the books for 32 years. In 1967 the New Hampshire Legislature adjusted the law regulating unauthorized practice in several ways.

The prohibition against corporate practice was retained, though the penalties for violation were updated87 and allowance was made for practice in professional associations owned and controlled by lawyers.88

Of more interest here, however, is that the Legislature repealed Section 10 quoted above. This was the 1935 amendment defining and criminalizing unauthorized practice. Section 12, the enforcement provision, was also repealed.

Both were replaced by the current sections 7-a through 7-f.89 Thus, rather than unauthorized practice being a crime, the Attorney General has the authority to "subpoena witnesses, compel their attendance, examine them under oath, and require the production of any relevant documentary evidence."90 Either the Attorney General or the Bar Association may seek an injunction.

According to the legislative history, the reason for the replacement of sections 10 and 12 with sections 7-a through 7-f was that enforcement by injunction is more direct than criminalization.

The advantages of petition for injunction is that it involves no criminal penalty. It deals directly with the wrongdoer who may, if found to be practicing law without a license, be dealt with summarily by the usual methods available to the court. The difficulty with the present statute is that it is not enforceable. I don't recall a single procedure under that statute, and violations are constantly going on.91

Moreover, enforcement by injunction constitutes a return to the common law, in which attorneys who were not admitted were to be "put out."92

It was noted by the members of the Senate that repeal of Section 10 meant deleting the statutory definition of the unauthorized practice of law. Senators apparently felt that the endless sentence in Section 10 was either not clear or was no definition at all, and that defining what is the practice of law was a task better left to the courts.93

VIII. THE LAW OF UNAUTHORIZED PRACTICE TODAY

A review of early legal history shows that the common law rule, apparently received in New Hampshire, was that one had to be admitted in order to practice as an attorney. New Hampshire's statutory policy is the same as the 700-year-old common law, and its language is similar.

The 1935 unauthorized practice of law amendments were merely an attempt to criminalize the enforcement of unauthorized practice, an idea the Legislature thought better of 32 years later. Moreover, because they address primarily transactional practice, the 1935 amendments and their 1967 repeal do not shed much light on the question of whether a non-lawyer has a right to commonly appear in court on behalf of others.

Regardless of why the unauthorized practice amendments were added and then deleted, and aside from the portion of the law addressing practice by corporations, the statute we have today is virtually identical to its 1926 version and to its 300-year-old predecessor. Neither the 1935 amendments, nor their 1967 repeal, worked any fundamental change on the underlying statutory scheme.94

It is thus difficult to conclude, as Mr. Theodore Kamasinski has argued, that the 1967 repeal somehow resurrected or created a non-lawyer's right to practice law.

ENDNOTES

1. State v. Marino, 929 P.2d 173 (Kan. App. 1996) (non-attorney convicted of "impersonating a lawyer" after he appeared on a television show in the hopes of promoting his screenplay by claiming he was a practicing lawyer in Kansas City).
2. I wish to express my appreciation to two professors at the Franklin Peirce Law School: Marcus Hurn for his knowledgeable review of my recitation of the common law and legal history; and Cindy Landau for her careful and comprehensive check of New Hampshire's early practice of law statutes.
3. Theodore Kamasinski v. Honorable Philip McLaughlin, in his official capacity as Attorney General of the State of New Hampshire and Peter E. Hutchins, in his official capacity as President of the New Hampshire Bar Association, No. # 01-E-386 (Merrimack County Superior Court filed Oct. 23, 2001).
4. See Chambers v. Baltimore & O.R.R., 207 U.S. 142, 148 (1907) (the right to "sue and defend . . . [i]n an organized society . . . is the right conservative all other rights, and lies at the foundation of orderly government"); United Transp. Union v. State Bar, 401 U.S. 576 , 585 (1971).
5. See Ricker's Petition, 66 N.H. 207, 225 (1890) ("No prerogative or statute was ever necessary in this state to enable litigants to appear by their agents.").
6. See Faretta v. California, 422 U.S. 806 (1975); State v. Settle, 129 N.H. 171 (1987).
7. See Johnson v. Avery, 393 U.S. 483 (1969).
8. Compare Ortwein v. Schwab, 410 U.S. 656 (1973) (upholding access fees for indigents in welfare cases), and United States v. Kraw, 409 U.S. 434 (1973) (upholding access fees for indigents in bankruptcy proceedings), with Boddie v. Connecticut, 401 U.S. 371, 383 (1971) (access fees for indigent divorce litigants unconstitutional barrier to the "adjustment of a fundamental human relationship."). See also, Bilodeau v. Antal, 123 N.H. 39 (1983) (party does not have right to have a non-lawyer represent her); Stevens v. Fuller, 55 N.H. 443 (1875) (case filed by non-lawyer representative cannot be dismissed on that ground).
9. "It would be difficult to give an all-inclusive definition of the practice of law"; its "determination must be made on a case-by-case basis." Appeal of CRR, 137 N.H. 707 (1993). Clearly constituting the practice of law, however, is appearing or filing documents on behalf of another in a court or before an administrative agency. Id.; State v. Settle, 124 N.H. 832, 837 (1984); Bilodeau v. Antal, 123 N.H. 39 (1983). It also includes transactional practice, such as drafting letters on behalf of clients, Tocci's Case, 140 N.H. 68, 70-71 (1995), and holding oneself out as an attorney. Id.
10. See e.g., Ricker's Petition, 66 N.H. 207 (1890); Opinion of the Justices, 140 N.H. 297 (1995).
11. Roscoe Pound, The Spirit of the Common Law 116-17 (1921).
12. Elizabeth Gaspar Brown, British Statutes in American Law, 1776-1836, at ix (1964).
13. An 1808 Kentucky law provides a good example: "Be it enacted by the general assembly, That all reports and books containing adjudged cases in the kingdom of Great Britain, which decisions have taken place since the 4th day of July 1776, shall not be read nor considered as authority in any of the courts of this commonwealth, any usage or custom to the contrary notwithstanding." An Act Prohibiting the Reading of Certain Reports in this Commonwealth, reprinted in 3 The Statute Law of Kentucky 457 (Littell ed.) (1811).
14. Cole v. Lake Company, 54 N.H. 242 (1874).
15. Id. at 289.
16. Id. at 279-289.
17. Brown, supra note 12, at 60-62.
18. N.H. Const., pt. II, art. 90.
19. New-Parish in Exeter v. Odiorne, 1 N.H. 233, 237 (1818) ("The law respecting uses and trusts as modified by the statute of the 7th of Henry 8th, was received and has been in practice as the law of this State, from the first organization of its government, so far as the nature and powers of our judiciary establishments could carry it into effect."); Eustis v. Parker, 1 N.H. 273, 278 (1818) ("It is undoubtedly true, that the great body of the common law is in force here; but it is equally true that many of its principles have been rejected, as not adapted to the situation of the country."); Houghton v. Page, 2 N.H. 42 (1819); French v. French, 3 N.H. 234 (1825); Pritchard v. Brown, 4 N.H. 397 (1828); Pettingill v. Rideout, 6 N.H. 454 (1833); State v. Rollins, 8 N.H. 550 (1837); Peirce v. State, 13 N.H. 536, 542-543 (1843); State v. Moore, 14 N.H. 451, 455 (1843); Lord v. State, 16 N.H. 325, 330 (1844); Bryant's Case, 24 N.H. 149, 153 (1851) (lower court can remove attorney from office); Currier v. Perley, 24 N.H. 219 (1851); Dennett v. Dennett, 43 N.H. 499, 503 (1862); Wright v. Bartlett, 45 N.H. 289 (1864); Lisbon v. Lyman, 49 N.H. 553, 582 (1870); Heath v. Heath, 85 N.H. 419 (1932); Bellows v. Page, 88 N.H. 283, 285 (1936). See also, II Hening, New Hampshire Digest 1473-74 (1926) (and cases cited therein).
20. New Hampshire has rejected the common law on several occasions. See e.g., Cole v. Lake Company, 54 N.H. at 242; Pettingill v. Rideout, 6 N.H. 454 (1833) (discarding common-law rule deferring enforcement of civil liability for criminal act until public justice satisfied); Houghton v. Page, 2 N.H. 42 (1819) (discarding common law rule of interest).
21. State v. Rollins, 8 N.H. 550, 561-563 (1837).
22. Bellows v. Page, 88 N.H. 283 (1936).
23. Bryant's Case, 24 N.H. 149, 153-55 (1851).
24. Boston, Concord & Montreal R.R. v. State, 32 N.H. 215, 231 (1955); see also In re Proposed Rules of Civil Procedure, 139 N.H. 512 (1995).
25. In England at this time there were numerous courts owned or administered by a variety of sometimes competing entities with sometimes overlapping jurisdictions whose rules and customs varied considerably. Theodore F. T. Plucknett, A Concise History of the Common Law 79 et seq. (5th ed.) (1956). Because American courts are successors to the royal courts, however, they are of primary concern here.
26. See Ricker's Petition, 66 N.H. 207, 213-224 (1890); 1 Frederick Pollock & Frederic Maitland, History of English Law Before the Time of Edward I, at 211 (2nd ed.) (1959); Plucknett, supra note 25, at 216-217. See also In re Proposed Rules of Civil Procedure, 139 N.H. 512 (1995); Henry Sumner Maine, Early Law and Custom 389 (1883) ("So great is the ascendency of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms.").

27. 1 Pollock & Maitland, supra note 26, at 217.
28. Id. at 216.
29. 1292 Writ of Edward I, reprinted in Plucknett, supra note 25, at 217-218.
30. Trowbridge vom Baur, An Historical Sketch of the Unauthorized Practice of Law, 24 Unauth. Prac. News 1, 3 (Fall 1958).
31. Plucknett, supra note 25, at 218; Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 Stan. L.Rev. 1, 6, n. 16 (1981).
32. Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors - or Even Good Sense?, 1980 Am. B. Found. Research J. 159, 161, 165 ("the development of unauthorized practice restrictions has generally coincided with the development of the profession itself").
33. The writ said: "Item, for sundry damages and mischiefs that have ensued before this time to divers persons of the realm by a great number of attornies, ignorant and not learned in the law, as they were wont to be before this time; it is ordained and stablished, That all the attornies shall be examined by the justices, and by their discretions their names put in the roll, and they that be good and virtuous, and of good fame, shall be received and sworn well and truly to serve in their offices, and especially that they make no suit in a foreign county; and the other attornies shall be put out by the discretion of the said justices." 4 Henry IV, c. 18 (1402), reprinted in Spencer L. Kimball, Historical Introduction to the Legal System 525 (1966). See also, Ricker's Petition, 66 N.H. at 220 (noting that the 1402 statute is a "model act upon this subject, and from which all subsequent legislation has derived an impress"); Plucknett, supra note 25, at 218 n. 1 (1402 statute contains "substantially the same provisions" as the 1292 writ).
34. vom Baur, supra note 30, at 3-4; Plucknett, supra note 25, at 218 n. 1.
35. An Act to reform the multitudes and misdemeanors of attornies and solicitors at law, and to avoid unnecessary suits and charges at law, 3 James I, chap. 7 (1605), quoted in vom Baur, supra note 30, at 4; see also, Roscoe Pound, The Lawyer From Antiquity to Modern Times 100 (1953). The regulations were probably ineffective. Id. at 106.
36. Rhode, supra note 31, at 6 n. 16.
37. See Standish v. Moldawan, 93 N.H. 204 (1944) (rule at issue was not part of common law, and thus not received).
38. Enactment By the President and Council of His Majesties Territory and Dominion of New England in America, May 27, 1686, Chapter 1, Section 3, quoted in Albert Stillman Batchellor, ed., Laws of New Hampshire, Volume I, Province Period, 1679-1702, at105 (1904).
39. Enactment during the administration of Joseph Dudley, May 15, 1714, Chapter 15, quoted in Albert Stillman Batchellor, ed., Laws of New Hampshire, Volume II, Province Period, 1702-1745, at 138 (1913).

The text of the statute went on to say:

"And the ffee to be Allowed for an Attorny in the Superiour Court of Judicature shall be twelve shillings, and in the Inferiour Court of Common pleas Ten Shillings and noe more; And but one Attorny to be paid ffor in any Case, And none but such as are Allowed and Sworn Attornyes as aforesaid shall have any ffee taxed to them in Bills of Costs.

"Any Law Usage or Custom to the Contrary in any wise Notwithstanding."

40. Based on notions that democracy would need no lawyers, in some colonies the practice of law was curtailed before the Revolution, harkening back to the early common law in effect if not in motive. James Hurst, The Growth of American Law 277 (1950). But in the beginning of the 1800s, merchants, land speculators, and others, demanded full-time lawyers and a unified system of commercial and property law. Morton Horwitz, The Transformation of American Law, 1780-1860, at 140-159 (1977); Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw (1957).

41. 1792 N.H. Laws at 102-03, provided:

"Be it Enacted by the Senate and House of Representatives in General Court convened, That the plaintiff or defendant in any cause, prosecution or suit, being a citizen of this State, may appear, plead, pursue or defend, in his proper person, or by such other citizen of this State, being of good and reputable character, and behavior, as he may engage and employ, whether the person so employed be admitted as an attorney at law, or not.

"And be it further enacted, That all attornies commonly practising in any of the courts of justice within this State, shall be under oath, which oath shall be ad ministered to them by the clerk, in open court, before the justices of the same, at the time of their being admitted to such practice, in the tenor following - That is to say,

"You solemnly swear, that you will do no falshood, nor consent that be done in the court, and if you know of any, that 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; you shall delay no man for lucre or malice, but shall 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 your client. So help you God

"And but one attorney to be taxed in any bill of cost, any law, usage or custom to the contrary notwithstanding."

42. Hurst, supra note 40, at 277.
43. To be admitted, a person had to have a specified combination of education, practice experience, consent of the county bar, and good moral character. Regulae Generales, 6 N.H. 577, 580-81, rules 25-29 (1833).
44. Maxwell Bloomfield, American Lawyers in a Changing Society, 1776-1876, at 32-58 (1976).
45. "[A]ny citizen of this State, of the age of twenty one years, and of good moral character, may on the recommendation of any attorney within this State, petition the Superior Court to be examined for admission as an Attorney in the said Superior Court, whereupon the Court shall assign some time and place for the examination, and if they shall thereupon be satisfied with his acquirements and qualifications, he shall be admitted to practice as an attorney in said Superior Court and every other Court of this State, upon taking and subscribing in open Court, the oaths to support the constitution of the United States, of this State, and the oath of office by law prescribed." 1838 N.H. Laws at 340.
46. Early in New Hampshire's colonial history, few lawyers and judges had formal education. For instance, "Richard Evans, who was born at Portsmouth, May 13, 1777, . . . became a notable figure in the history of the New Hampshire bench because he was the last of those elevated to such place of authority without education in the law." Herbert Parker, Courts and Lawyers of New England 555 (1931). This was at a time when respect among judges for legal education was very low. Charles Warren, A History of the American Bar 135 (1911).

But by the time of the Revolution, educational standards for lawyers in New Hampshire had become "uncommonly strict." Lawrence M. Friedman, A History of American Law (1973). New Hampshire courts required five years of preparation for admission to the lower courts for applicants who were qualified to enter Dartmouth (although they did not have to know Greek); and for college graduates, three years of preparation plus two years of practice. Richard F. Upton, Centennial History of the New Hampshire Bar Association, 15 N.H. B. J. 35, 42-44 (1973).

In the early 19th century, however, the anti-elitist Jacksonian idea of democracy took hold, and the Legislature eliminated educational standards. The New Hampshire Supreme Court later lamented:

This brings us to the question whether, in the present state of the law, mere ignorance of the law, however gross, can authorize the court to remove an attorney from practice. But how can the court possess this power, when the statute declares that any citizen, twenty-one years of age, and of good moral character, shall, on application, be admitted to practice as an attorney? The statute requires no knowledge of the law, no acquaintance with the practice, and no education whatever. The applicant may be destitute of even the rudiments of an education. He may be unable to read or write. He may subscribe the oaths to the constitution and of office, by making his mark. But if he come within the statute, he must be admitted. It has been sometimes thought that attorneys, who take such an important part in the administration of justice, should be reasonably familiar with those great principles which for some hundreds of years have formed the foundation of government, have settled domestic relations, have fixed the construction of contracts, and have secured the rights of persons and of property to all who speak the English language. If these could be dispensed with, some knowledge of the ordinary rules of practice, or, at least, of the distinction between the forms of action, has been supposed to be necessary. But the statute dispenses with all this. It does not require so much education in an attorney, to whom such momentous interests are entrusted, as it requires in the teacher of a district school.

Bryant's Case, 24 N.H. 149, 157 (1851).

Among the lessons of the Civil War, however, was that inexpertise could cause enormous damage. Thus, in 1872, the Legislature reintroduced the requirement that an applicant to the bar demonstrate some legal knowledge, 1872 N.H. Laws ch. 36:1, and in 1876 the Supreme Court centralized the examination process. Rules of Court, 56 N.H. 579, rules 40-41 (1876). The requirement, as every law school student knows, remains.

47. Upton, supra note 46, at 45-47. Even Indiana, whose constitution in 1851 permissively allowed that "Every person of good moral character, being a voter, shall be entitled to admission to practice la, w in all courts of justice," Ind. Const. Art. 7, 21 (in effect from 1851-1933), reprinted in Spencer L. Kimball, Historical Introduction to the Legal System 543 (1966), nonetheless required at a minimum, "admission to practice." In the mid-19th century period, even when regulation was at its most lax, "the states did not treat the practice of law as an activity that was an inherent, private right of any person who chose to follow it." Hurst, supra note 40, at 277.

The right to practice law is in the nature of a franchise from the State, conferred only for merit. It cannot be assigned or inherited, but must be earned by hard study and good conduct. . . . No one can practice law unless he has taken an oath of office and has become an officer of the court, subject to its discipline, liable to punishment for contempt in violating his duties as such, and to suspension or removal.

Matter of Co-operative Law Co., 198 N.Y. 479, 92 N.E. 15, 16 (1910).

48. RS 177 (1843).
49. This provision was added in 1838. 1838 N.H. Laws at 340, , . , See supra note 46.
50. RS 177 (1843).
51. CS 187 (1853).
52. GS 199 (1867).
53. 1872 N.H. Laws ch. 36:1.
54. GL 218 (1878).
55. PS 213 (1891).
56. PL 325 (1926).
57. Ricker's Petition, 66 N.H. 207, 208 (1890). Lord Holt lived from 1642 to 1710.
58. A person had to be twenty-one years old to be admitted; the age was changed to eighteen in 1973. 1973 N.H. Laws ch. 72:63.
59. See e.g., Manchester Bank v. Fellows, 28 N.H. 302 (1854) ("Formerly, attorneys were required to be appointed by warrant, and to file their powers in court; but that practice has long since been disused, and a mere parol retainer is sufficient.").
60. 1981 N.H. Laws ch. 328:3, II.
61. Ricker's Petition, 66 N.H. at 226.
62. The statute provides a loophole for a non-lawyer, otherwise in violation of the statute, who commonly practices; it voids filings by disbarred lawyers, but not those by non-lawyers. See Stevens v. Fuller, 55 N.H. 443 (1875) (case filed by non-lawyer representative cannot be dismissed on that ground).
63. RL 381 (1942).
64. RL 381:10.
65. "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 corporation violating any provisions of this section shall be fined not more than one thousand dollars; and 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 fined not more than five hundred dollars." RL 381:11.
66. See State v. Settle, 129 N.H. 171 (1987); In re New Hampshire Disabilities Rights Center, Inc., 130 N.H. 328 (1988); Knox Leasing v. Turner, 132 N.H. 68 (1989); New England Capital Corp. v. Finlay Co., 137 N.H. 226 (1993); Morriss v. Towle Hill Assocs., 138 N.H. 452 (1994).
67. "The supreme and superior courts shall have concurrent jurisdiction in equity to restrain violations of section 10 or 11 on proceedings brought by any bar association within the state, by the attorney-general, or by three or more attorneys admitted to practice in the state." RL 381:12.
68. The Model Act Providing Remedies for the Unauthorized Practice of Law is provided here in its current version, including some 1996 amendments:

311:7-a Petition for Injunction. -

I. 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.

II. The action may also be maintained by the bar association of the state of New Hampshire.

311:7-b 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.

311:7-c 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.

311:7-d Definition. -

The word "person" as used in this subdivision means an individual, corporation, partnership or association.

311:7-e Short Title. -

This subdivision may be cited as the Model Act Providing Remedies for the Unauthorized Practice of Law.

311:7-f Severability. -

If any provision of this subdivision 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 subdivision are severable.

69. Hurst, supra note 40, at 249-366; Christensen, supra note 32, at 189-197.
70. See Rhode, supra note 31, at 8 n. 27.
71. Hurst, supra note 40, at 323; Rhode, supra note 31, at 6-8.
72. J.M. Barton, Report of Committee, Unauthorized Practice of the Law, Vol. 6, No. 4 Proceedings of the Bar Association of the State of New Hampshire 159, 164 (1932-1933). The Committee appeared as amicus curiae in Bilodeau v. Antal, 123 N.H. 39 (1983). It disbanded around 1998.
73. Hurst, supra note 40, at 322, 327-28; Rhode, supra note 31, at 6-10; George W. Bristol, The Passing of the Legal Profession, 22 Yale L.J. 590, 590 (1913).
74. To Prevent the Unauthorized Practice of Law, 1967: Hearing on SB 144 Before the Senate Judiciary Committee, notes of committee (1977) (statement of Senator Robert Upton).
75. G. Brand, Unauthorized Practice Decisions (1937).
76. Hurst, supra note 40, at 319-322; Statement of Senator Robert Upton, supra note 74 (noting a bank in Keene, New Hampshire, which was writing wills).
77. J. Fischer & D. Lachmann, Unauthorized Practice Handbook (1972); J.M. Barton, Report of Committee, Unauthorized Practice of the Law, Vol. 6, No. 4 Proceedings of the Bar Association of the State of New Hampshire 159 (1932-1933) (see cases cited therein); Christensen, supra note 32, at 204-212; Melvin F. Adler, Are Real Estate Agents Entitled to Practice a Little Law, 4 Ariz. L. Rev. 188 (1962-1963).
78. Quintin Johnstone, The Unauthorized Practice Controversy, A Struggle Among Power Groups, 4 U. Kan. L. Rev. 1, 11, 52-53 (1955).
79. Matter of Co-operative Law Co., 198 N.Y. 479, 92 N.E. 15 (1910) (corporation formed for express purpose of practicing law).
80. Bristol, supra note 73, at 590.
81. Hurst, supra note 40, at 277-83; Christensen, supra note 32, at 186-89.
82. Hurst, supra note 40, at 277-78.
83. See, e.g., Upton, supra note 46.
84. Hurst, supra note 40, at 322-33.
85. Id.
86. Id. at 329.
87. RSA 311:11.
88. 1970 N.H. Laws ch. 2 (codified as RSA 311:11-a); see also N.H. Sup. Ct. R. 41.
89. RSA 311:7-a through 7-f, supra note 68.
90. RSA 311:7-b. See also State v. O'Connell, 131 N.H. 92 (1988); State v. Settle, 124 N.H. 832 (1984).
91. Statement of Senator Robert Upton, supra note 74 (noting during legislative testimony that it was he, who "[b]ack in the 30s, was instrumental in getting two of these sections").
92. 4 Henry IV, c. 18 (1402), supra note 33.
93. Statements of Senators English and Soden, supra note 74.
94. Eyers Woolen Co. v. Gilsum, 84 N.H. 1, 4 (1929) (operation of underlying statute not affected by later void amendment).

The Author

Attorney Joshua L. Gordon is an appellate lawyer in Concord, New Hampshire, www.AppealsLawyer.net.

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