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Bar Journal - June 1, 2001

The Role of the Bar Association in the 2001-02 Legislative Session

By:

SETTING THE STAGE

The New Hampshire Bar Association has played an active and constructive role during the past legislative session. As expected, this past session witnessed some of the most comprehensive and far reaching legislative initiatives ever relating to the administration of justice, composition and operation of the courts, and the practice of law in New Hampshire.

The proposals have ranged from constitutional amendments challenging and limiting the rule-making authority of the Supreme Court to term limits, judicial selection, retention of judges, judicial pensions and significant reform of the Judicial Conduct Committee. Legislation which dramatically changes the composition of the Professional Conduct Committee was proposed, as was legislation to de-unify this Association. Under the able and tireless leadership of Bar President Greg Robbins, this Association, through its officers, Board of Governors, lobbyist John MacIntosh, Legislation Committee and legislative task force, was perhaps more active in the legislative arena than in any year in recent memory. The task, however, is far from complete.

While some legislation on matters of judicial reform has perhaps been passed by the time of the printing of this edition of Bar Journal, some of the most significant "reforms" have either been retained for study over the course of the summer to emerge as bills this coming fall, or will take the form of constitutional amendments requiring voter approval, at the earliest, in the fall of 2002. Others bills heard this past year may be revised or amended over the coming months to be presented to the House and Senate for final approval next winter. As a result, it will be imperative that this Association continue to play an active and constructive role in the upcoming year as these initiatives move from the stage of concepts and drafts to final bills and potentially law. The leadership of this Association remains committed to play that role.

THE ISSUES

We anticipate that bills and/or constitutional amendments will be finalized and presented to the House and the Senate for passage this year on the following issues: (1) establishment of a permanent judicial selection commission; (2) term limits for judges; (3) judicial evaluation; (4) judicial conduct and discipline; (5) judicial retention; (6) judicial pension reform; (7) deunification of the Bar Association; (8) reform of the Professional Conduct Committee; (9) rule-making authority of the Supreme Court; and (10) reform of the administration of the courts.

Even a glancing review of this list reveals that these proposed reforms encompass perhaps the most fundamental and important elements of our judicial system and the legal profession in New Hampshire. These reforms will impact not only judges and lawyers, but more importantly the citizens of New Hampshire who not only comprise the client base for New Hampshire lawyers, but the true users or "consumers" of our courts. As a result, while reform and improvement of the judicial system must be considered and debated, it is critical that we get it right. Reform for the sake of reform could cause irreparable and long lasting damage to the very branch of government charged with protecting the constitutional and civil rights of our citizens. Reform for the sake of true improvement could likewise enhance the ability of judges, lawyers and the system to better and more effectively serve the public. Ensuring that this "reform" represents true "improvement" must be our mission in the months ahead.

INPUT FROM NEW HAMPSHIRE LAWYERS

In the upcoming months, the Board of Governors of the Association will be seeking the input of the membership on these important issues. We have undertaken significant measures in this regard already; however, it is critical to our task that these efforts continue. The Board and officers of the Association are planning to continue our statewide member outreach program this fall. While last yearís program focused on issues surrounding the future of the profession of law, we anticipate that this yearís program will center on the issues of legislative judicial reform, proposed constitutional amendments, and the future of the unified bar in New Hampshire.

We ask that when you receive notice from your local bar associations that our outreach program is on the agenda for a local bar meeting, you make every effort to attend, and also come prepared to participate in meaningful discussion and debate on these issues. It is the desire of Bar leadership to incorporate and represent the views of our membership in our legislative efforts, and without your direct input this goal cannot be realized. We also invite you to contact any of the Barís officers in writing, by telephone, by e-mail or in person to express your views and concerns.

LOCAL PUBLIC OUTREACH EFFORTS

We also believe that it will be critical for members of our profession to take the time to discuss these important issues with non-lawyer members of the public across the state.

Some of these legislative reform initiatives may take the form of Constitutional amendments, requiring voter approval. In order for the voters to make informed decisions on issues which may dramatically impact the ability of the judicial branch to effectively serve the citizens of this state, it is critical that they be exposed to an objective and unbiased discussion of the issues.

Accordingly, we anticipate that the bar will pursue formal programs aimed at public outreach and education. Again, however, this effort will be fruitless without the help of the lawyer members of the Association. You will be hearing more about this outreach in the months ahead, both through Bar News and our Web site.

MEDIA EFFORTS

In the past year, we have attempted to cooperate with the public media in an effort to constructively participate in the public debate on issues involving the judiciary and the various legislative initiatives. The Associationís officers and legislative liaison met last fall with various editorial boards of the stateís major newspapers both to offer our assistance and input, and to explain substantive issues and the Barís position on some of these issues. We provided these editors with historical and factual information for future discussion of these issues in their news and editorial pages. Officers of the Association have been interviewed by newspapers, radio stations and television throughout the year. We have appeared on radio talk shows, television news reports, and have written op-ed pieces for newspapers when we felt that the judiciary and the system had been unfairly criticized. With the hard work and journalistic expertise of our communications director, Dan Wise, we have been able to coordinate these efforts in an attempt to bring a consistent and appropriate message to the general public and members of state government. Through Bar News and our web site, we have communicated with and sought input from our members. We developed and published this issue of Bar Journal in an effort to compile informational and scholarly articles which we anticipate will not only be of interest to our members, but can be used in the future to provide helpful information to members of the media, the press and the legislature.

These efforts will likely increase in the upcoming year. Again, it is critical that we hear and understand the views of our membership on these issues so that positions taken by the Association reflect, as much as possible, the views of New Hampshire lawyers. Many of the questions asked by media outlets center around how New Hampshire lawyers feel about the particular topic being discussed. Unless we hear from our members, these questions are difficult, if not impossible, to answer. While we believe that our Board and its officers represent a cross-section of New Hampshire attorneys, there is no substitute for continuous input and comment from our members. I encourage New Hampshire lawyers to feel free to contact me personally at any time to share their views and concerns on these matters. I can be reached at 669-8080, or by e-mail at phutchins@80nhlaw.com.

WORK WITH THE BRANCHES OF GOVERNMENT

Part of our efforts over the past year have included reaching out to members of all three branches of state government. We have testified at numerous house and senate hearings and have provided information to the judiciary committees of both the House and the Senate. We have been invited to participate in the House subcommittee study process which will continue this summer and into the fall. We have met with a number of legislators to discuss specific bills, and have sponsored legislation and drafted amendments to existing legislation. While the officers and the Board of Governors of the Association hold certain views on some of the legislation proposed, we have also taken the time to listen to the opinions and concerns of state legislators and senators to more fully understand why certain bills are being proposed, and whether other legislative options exist which address the lawmakersí concerns while preserving judicial decisional independence.

We have sought and received direct input from members of all levels of the New Hampshire judiciary on many of the legislative initiatives directly impacting the judicial branch. This input was sought not to obtain their prior approval of positions the Association may decide to take, but rather to avail ourselves of the experience, knowledge and insight of individuals who serve within the very branch of government which is the subject of these legislative initiatives. It is likely that members of the judiciary have not agreed with all of the positions we have taken this year on some of these issues. The reality is that most of these issues are difficult, and many are controversial. Throughout the process, we have done out best both to represent what we perceive to be the views of our membership and to take positions consistent with the preservation of judicial independence and the ability of our stateís fine judiciary to dispassionately and objectively decide each case on the merits, regardless of the identity of the parties or any potential controversy caused by their decisions.

While individuals within government may differ as to the ultimate resolution of these issues, and while they may hold beliefs contrary to ours, we feel is it critically important, whenever possible, to work with these individuals toward a common goal of improving, not damaging, our stateís judicial branch.

CONCLUSION

When I was elected Vice-President of this Association in1999 and began the two- year progression toward becoming Bar President, I could not possibly have anticipated the developments of the past 18 months. Events have forced all of us to consider and perhaps question fundamental professional and personal issues. Some of these events, and the reaction and criticism they have generated, have not been pleasant. Personal friendships and loyalties as well as institutional relationships have been tested. We have seen people we know and respect hurt, and their reputations damaged. Criticism in some of the media of our judiciary and our profession has been harsh. We have each confronted questions for which we have no ready or easy answers.

I am confident that I can speak for my friend Greg Robbins in saying that while no one ever promised that the job of Bar President would be easy, no one likewise warned us that it would be quite this difficult. In the past year we have done our level best to represent the interests of the members of this Association during difficult times. I anticipate in the upcoming year the job will not get easier. We face initiatives which could fundamentally change the relationship among our branches of government, the structure of the judicial branch, the tenure of judges, our systems of judicial and attorney discipline, and the status of this Association as one of 37 unified bar associations. The numerous legislative and constitutional proposals to be considered could permanently change how the judicial branch operates, and how we as New Hampshire lawyers will practice our profession and serve our clients long into the future. Our efforts will be subjected to additional scrutiny, doubt and criticism. We will face more difficult questions with no easy answers.

Therefore, on behalf of myself and my fellow officers of the Association, Greg Robbins, Marty Van Oot, Russ Hilliard, Richard Uchida, Rob Howard and the entire Board of Governors whom you have elected to lead this organization, I ask for your help and input in the coming year. Only with the combined efforts of the leadership and members of the New Hampshire Bar Association can we hope to play a significant role in ensuring that the end result of any judicial "reform" is true improvement.

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