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Bar Journal - December 1, 2003

The Power of the Pro Bono Program to Make a Difference

By:
 

"Equal justice under law is not merely a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists. . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status."

U.S. Supreme Court Associate Justice
Lewis Powell, Jr. (1907-1998)

INTRODUCTION

Justice Powell's words resonate as forcefully today as when they were written more than 30 years ago. "Equal justice. . . without regard to economic status:" this simple phrase brings us to the heart of the organized Pro Bono Program's purpose and power. Together with New Hampshire's staff-model legal services programs, the Pro Bono Referral Program coordinates the efforts of its dedicated volunteer attorneys to offer families and individuals living in poverty a voice in our legal system, helping to keep the ideal of equal justice alive. For ideals without action are hollow promises.

For more than a quarter century, the New Hampshire Bar's Pro Bono Program and its network of volunteer attorneys have made a difference in the lives of thousands upon thousands of Granite State people subsisting in stunted economic and social conditions. While an unrealized dream for many, access to our justice system can transform lives and, sometimes, even save them.

Yet, its abiding strength may lie within the work of ensuring simple fairness and dignity in the fundamental matters of daily life. As renowned jurist Learned Hand stated, "It is the daily; it is the small; it is the cumulative injuries of little people that we are here to protect. If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice."

* * *

Access to justice through the Pro Bono Program gave Mr. Smith a fighting chance.

Once known as "Kid Chocolate" in the ring, his boxing days were long gone but his dignity and spirit of survival never wavered. When neighbors sued the elderly gentleman claiming they owned part of a small woodlot next to his home, the former fighter knew he needed help to get a fair shake-to protect his rights and save the bit of timber he cut to supplement his small pension check. When Pro Bono connected Mr. Smith with a law firm committed to "taking one case for justice," the elderly Granite Stater found himself on equal footing with his opponent. After a multi-day trial and the donated services of land surveyors added to volunteer attorney time and advocacy, Mr. Smith prevailed-keeping both his land and his dignity intact.

* * *

Will the Bar's Pro Bono Program still be there in another 25 years for people like Mr. Smith who need access to our justice system to protect their rights?1 Will new generations of Bar leaders, volunteers, funders and others recognize that sustaining New Hampshire's Pro Bono Program is an important investment in our justice system?

While many developments in society -from the growing complexity of legal matters to the overall erosion in voluntary activities-challenge the future of the Pro Bono Program, innovation and adaptability will enable it to survive. The traditions of Pro Bono will be carried on by new leaders, existing partnerships will be strengthened, and new modes of delivery of legal services will be used to address diverse needs. As an icon of American folk music once proclaimed, "The times, they are a changing." Embracing change may be the best way to uphold one of our most hallowed ideals-equal justice for all.

The 25-year history of the Pro Bono Program has demonstrated that in its support of legal services for the poor, New Hampshire's legal community has never shied away from challenge and change, and it has responded creatively to obstacles cast in its path. The future will call on private attorneys to revitalize this deep-rooted tradition of protecting and advancing the rights of the poorest members of our communities to keep alive the promise of "equal justice without regard to economic status."

YOU CAN'T KNOW WHERE YOU ARE GOING UNLESS YOU KNOW WHERE YOU HAVE BEEN

During its 25-year history, the program has exhibited resourcefulness and resilience in navigating the whitewaters of change. One of the most serious threats to its seaworthiness came when Pro Bono lost federal Legal Services Corporation (LSC) funding in the mid-1990s. At the same time, New Hampshire Legal Assistance declined to accept federal funding because of restrictions imposed by Congress on its activities. This crisis led to the restructuring of the New Hampshire's legal services delivery system, altering Pro Bono's role to include coordination of client intake with the federally funded Legal Advice and Referral Center created in 1996. Thanks to Bar Association and legal services leadership, the support of its funders and volunteer attorneys, the support system for private attorney involvement in civil legal services, emerged from the restructuring with its key role intact.

As new client needs have emerged, Pro Bono has risen to the occasion again and again to direct volunteer resources to address critical legal service needs. Among those initiatives:

  • The DOVE Project developed in 1993 to provide expedited legal services to victims of domestic abuse;
  • An SSI Children's Disability Project, partnering with New Hampshire Legal Assistance to represent parents of disabled children facing the loss of their federal benefits;
  • A Military Pro Bono Project launched in 2001 to provide reservists facing call-ups with basic estate planning services;
  • An uncontested divorce booklet developed by volunteers to assist people with "simple" divorces in which children and property are not involved;
  • A Special Education Project conducted in partnership with the Disabilities Rights Center to expand the pool of private attorneys available to handle special education cases for low-income children;
  • A Low-Income Taxpayer Project funded by the Internal Revenue Service to assist low-income working families with federal income tax disputes.

Meanwhile, family law, a mainstay of the Pro Bono caseload, has seen many sweeping changes that have had a major impact on the Program. Many more litigants now proceed with divorces without initially consulting an attorney, a trend that has significantly altered the caseload of the Pro Bono Program, creating one of the deepest challenges faced by the 25-year-old institution. Simple divorces, previously a significant portion of the Program's caseload, are virtually non-existent today given the proclivity of the public to proceed on their own in these matters. In fact, with the exception of a handful of cases, the vast majority of divorces and custody cases in Pro Bono's system are contested.

Many more Pro Bono cases start out as pro se matters. Often a hearing has been scheduled by the time the client seeks Pro Bono assistance, complicating the work of an attorney called in to perform a rescue.

CASES IN MOTION

Filed cases have a life of their own and require more management, whether from the LARC advocates who conduct initial screening and provide advice or from the Pro Bono staff who attempt to keep on top of case developments while trying to refer the matter. Relying on the crowded schedules of its volunteers, Pro Bono is not well suited to the demands of cases "in motion" requiring expedited attention. Yet, staff members continue to make the calls and many attorneys continue to take cases, a phenomenon not seen in pro bono programs elsewhere in the country where sticky family law cases are almost impossible to refer, and such clients' needs often go unaddressed.

While the number of cases referred annually by Pro Bono has not kept pace with the expansion of the private Bar, the attorneys who do volunteer devote much more time to individual cases, giving collectively more time now to Pro Bono than in the past. The number of Pro Bono referrals greatly understates the amount of legal work Pro Bono volunteers now donate. The average time spent on a Pro Bono family law case now easily can reach 25 to 30 hours, while the norm during the early years typically was 10 hours or less. A conservative estimate of the value of time spent by private attorneys on all Pro Bono Program cases last year approached $2 million dollars.

Broadening participation is crucial and represents one of Pro Bono's biggest challenges. Currently about 38 percent of active in-state attorneys participate in the Pro Bono Program. Many are long time members of the Pro Bono panel while others are fresh out of law school. Maintaining a steady number of attorneys on the referral panel demands a good deal of time, even merely to replace the attorneys who move, leave the practice or retire. But we have no doubt attorneys will continue to volunteer, whether for professional, religious, personal or other reasons. Equally certain is that whatever innovations or changes lie ahead, volunteer attorneys will be the mainstay of the New Hampshire Pro Bono Referral Program, and the civil legal services delivery system in New Hampshire Why? Because there is no other way.

WHERE DO WE GO FROM HERE?

As the practice of law evolves, so must Pro Bono and the other legal services programs. Alternative delivery options and innovative ways to utilize resources must be developed, especially in the use of volunteers. As society becomes more diverse and complicated and as needs shift, so must legal service programs rethink and revise their priorities.

What is the vision for how to mesh the resources of the private bar, in a changing environment, to help meet the legal needs of the disadvantaged in this state? It's likely new ways of partnering with staffed legal services programs will utilize volunteers in fresh and strategic ways to meet the demands and emerging needs for access to representation by low-income people throughout New Hampshire.

The legal needs of the poor are vastly underserved, national statistics reveal. Estimates by the American Bar Association indicate only about 20 percent of the legal needs of low-income people are being met today due to lack of resources.2 Less bleak, a new study by the Massachusetts Bar Foundation shows almost 53 per cent of the legal needs of poor families and individuals in the Commonwealth are going unmet.3 While no hard data exists for New Hampshire, the necessity of turning down assistance requests on a daily basis and ongoing lists of 100 to 150 Pro Bono clients awaiting referrals indicates a significant gap between demand and supply.

At the same time, private attorneys constitute a resource only partially utilized in the quest to provide access to justice for the poor. National estimates show one private attorney per 275 residents.4 New Hampshire has an equivalent ratio for its citizenry as a whole. For New Hampshire residents with incomes at 125 percent of poverty, it is a very different story. Currently one legal services attorney/advocate is available for about every 3,000 poor people.5 While new and increased funding for staffed legal services programs is part of the desired vision of the future, political and financial realities call for the vision to encompass greater participation by the private bar, whose numbers reveal untapped wealth when it comes to representing the poor.

Across the country, estimates indicate about 17 percent of all attorneys provide public service, including representation of indigent clients for free; pro bono work for bar associations, educational and charitable institutions.6 In New Hampshire about one-third of in-state private attorneys participate in the organized Pro Bono Program by taking cases and dozens of others serve as mentors and help to refer cases during marathons. This of course, does not count the hundreds of hours of donated legal time provided by attorneys on their own to poor members of their communities.

Added to this are the many hours Bar members devote to service on Bar committees and boards of organizations serving low-income populations. The New Hampshire legal community's strong tradition of involvement places the state far and away above the national average. Volunteerism is one of the hallmarks of the New Hampshire Bar Association, with many attorneys giving selflessly of themselves to the cause of equal justice and improvement of the justice system for all.

Some states have debated mandatory or voluntary pro bono reporting to capture elusive public service data and foster increased involvement in pro bono activities. One of the few states with a mandatory reporting requirement, Florida has seen some increase in the level of support for public service. Opponents of reporting requirements, however, argue such mandates create negative pressure and burdensome collection requirements that outweigh the positive aspects. Those who favor voluntary reporting say it would raise consciousness about professional responsibility and lead to expanded opportunities for pro bono involvement, while those who oppose such mandates say they are difficult to enforce and generate inconclusive or confusing data.7

Proceeding on the theory pro bono activity in New Hampshire will remain aspirational, the Pro Bono Program's future vitality and relevance depends on leadership, agility, diversity, innovation and re-dedication to the fundamental principles of pro bono service as well as strengthening of its partnerships with staffed legal services programs. On a fundamental level, the strength of New Hampshire's Pro Bono Program largely depends on the leadership and participation of Bar members, either as Bar leaders, law firm managers or simply as front-line volunteers.

Since its inception-a creation of the Bar's Citizens Rights Committee-the Pro Bono Program has enjoyed unwavering support from Bar leadership. Monetary and in-kind contributions by the Bar Association have strengthened Pro Bono's infrastructure and capacity to leverage volunteer attorney involvement, providing crucial coordination of, training and support to volunteers.

In 1988, at the recommendation of the Delivery of Legal Services Committee, the Bar's Board of Governors passed a resolution urging New Hampshire attorneys to provide 30 to 50 hours of pro bono legal services to the poor.8 Given the hundreds of new members joining the Bar during the interim, dusting off this document and renewing its principles could provide a valuable reminder to all attorneys of their unique role in serving the legal needs of indigent families and individuals. In their support of a unified Bar Association, Bar leaders have stressed the importance of a mandatory association in fostering a vibrant Pro Bono Program as a key means of serving the public. A possible cloud looming on the horizon, Bar deunification would undermine the effectiveness and fiscal health of Pro Bono given the diminished resources of a voluntary association with its requisite charge of focusing on marketing and recruitment.

The Pro Bono Program's viability also heavily relies on consistent, strong financial backing from the New Hampshire Bar Foundation's IOLTA program, which has provided $2 million in grant awards to Pro Bono since 1984. Through its grant-making, the Bar Foundation's continues to recognize the Pro Bono Program's fundamental role in the state's legal services delivery system. That support is an integral part of Pro Bono's vision of the future. This recognition extends to the Foundation's support of Pro Bono via the Community Campaign for Legal Services, which must not only be strengthened but also institutionalized if Pro Bono, LARC and NHLA are to have the financial wherewithal to fulfill their coordinated missions in the future.

Involvement by the judiciary has been central to the success of the Pro Bono Program, and its support is crucial for the future. Members of the NH Supreme Court routinely include in their remarks at swearing-in ceremonies an exhortation for new attorneys to recognize their Rule 6.1 obligations by taking a Pro Bono case. The Superior Court has implemented directives to provide priority scheduling to attorneys with Pro Bono cases. Judges frequently serve as faculty of Pro Bono-sponsored continuing legal education seminars and as presenters of annual volunteer attorney awards, showing their support of and encouraging involvement in Pro Bono. But more could be done to encourage and recognize volunteer representation of the indigent-from heightening awareness of this work's importance to the justice system to expressions of appreciation for the attorneys who sacrifice their time to assist the needy.

PASSING ON THE TRADITION

Senior attorneys must find ways to pass down the tradition of providing free representation to low-income people. This could be their finest legacy to the future of the legal profession because, without this leadership, the Pro Bono Program may falter from a lack of new voices to take up the call of service to the poor. Some firms consider pro bono efforts a plus when reviewing candidates for partnerships. Others give credit toward billable hours for time spent on Pro Bono Program cases. More encouragement and incentives could bolster a pro bono ethic from internal firm awards programs to support and information and active management of the work at all levels.

Sole practitioners, who comprise 68 per cent percent of the Bar, form the backbone of the Pro Bono Program. From individual cases to staffing referral marathons to serving on the Pro Bono Program Board, individual attorneys still do a significant portion of casework through Pro Bono.

Expanding the pool of available Pro Bono attorneys demands creativity. In June 2003 Bar members approved a new membership category, "Pro Bono Active Status," which blossomed from Pro Bono Governing Policy Board discussions regarding retired attorney involvement. Originally presented with a proposal to create an emeritus status to allow retired attorneys to practice for the sole purpose of providing free legal services to the indigent, the Board of Governors grew the concept. The yield: a special membership status, without age restrictions, permitting inactive attorneys to resume active status for the purpose of representing low-income clients qualified through the Pro Bono Program.

Many trends, however, impinge on Pro Bono's ability to retain and attract new attorneys, whether solos or associates in large, urban firms. In the past decade, Pro Bono has felt the impact of attorneys developing narrow practice niches. As fewer attorneys step forward to accept divorces and custody disputes, citing reasons from lack of expertise to fear of malpractice claims, Pro Bono is challenged in its ability to meet client needs.9 And the cases are tougher, almost exclusively contested matters, giving further pause to attorneys questioning whether they should sacrifice time to get involved with what they fear may become difficult and long-lasting battles.

In this era of greater attorney specialization, the Pro Bono Program must adapt and find new ways to encourage and support attorneys in representing low-income family law clients, especially those for whom these matters are not a primary practice area. This effort calls for expansion of training programs like "Divorce Camp" in which LARC and Pro Bono collaborated in 2002 to provide supervision and NHMCLE-approved training for new attorneys. "Divorce Camp" enabled them to learn the mechanics and client counseling aspects of divorce practice by working on an actual Pro Bono case. Pro Bono must keep the creative juices flowing to explore and implement other positive ways to equip attorneys to feel comfortable saying "yes" to Pro Bono family law cases.

Reduced-cost continuing legal education programs also go a long way in recruiting attorneys to handle new areas, such as special education, tax disputes and evictions, and also serve to reward attorneys who participate in Pro Bono.10 We need to go further. Paring back the tuition even more may be considered. There is another alternative embraced by several states, including Wyoming, Tennessee and New York, in which hours devoted to Pro Bono casework count toward required credits. The argument for offering ethics/professionalism credits to private attorneys for Pro Bono Program casework seems a logical step in promoting and rewarding representation of the indigent.

LOOKING AT NEW MODELS OF SERVICE

Will the future find Pro Bono delivering justice one referral at a time? Innovative delivery models must also be part of Pro Bono's vision of the future. That vision could include "unbundled" or discrete task representation in which attorneys handle parts of a case rather than provide "soup to nuts" representation, which can become very expensive in terms of the hours required, a major consideration especially when that time is donated by volunteers. For example, in a family law case an attorney might agree only to review stipulations and make suggested changes rather than file an appearance and represent the client through the entire process, including scheduled hearings.

While some attorneys currently offer this type of limited work for clients, others are uncomfortable with this approach given malpractice concerns and lack of express approval in New Hampshire's Rules of Professional Conduct. Rules changes in other states, including Maine and Wyoming, specifically address and allow unbundled legal services. Other states have adopted a combination of changes to both ethical and court procedural rules to permit unbundling of legal services.11

Unbundling, while an appropriate option in some situations, is not a delivery system panacea. "The provision of 'unbundled' legal services needs to be tailored to each situation or client. Those who lack the ability to proceed on their own behalf should have access to full service representation to adequately protect their rights."12

Alternative dispute resolution is another arena that Pro Bono has only started to explore. Roles for attorneys might include reviewing mediated agreements to assure clients understand their rights and the implications of such agreements as well as providing initial pre-mediation counseling to apprise clients of their rights under the law. With the planned implementation of court-ordered mediation in family law matters, this prospect for Pro Bono attorney involvement is close on the horizon.

"Outside the box" delivery models can be as innovative as crossing borders and using paved and electronic highways to deliver legal services to the poor in rural locations. NHBA Executive Director Jeannine McCoy has postulated the creation of a Northern New England Rural Delivery Project in which Maine, New Hampshire and Vermont would jointly develop a delivery model to redistribute volunteer efforts. The plan would call for volunteer law students and paralegals equipped with laptop computers logged on to the Internet to travel by converted coach bus to remote areas, accessing a supervising attorney live online when meeting with clients.13

DIVERSE CLIENTS, DIVERSE NEEDS

It is not only how services are delivered but also the subject matter of those services that will undergo change as we move into the future. Low-income people have diverse legal needs extending beyond subject matters traditionally handled through the Pro Bono Program. This is where Pro Bono must use attorney specialization as a means to create win-win situations for both clients and lawyers. In collaboration with its legal services partners, the courts and the Bar, the Pro Bono Program must work to assure access for low-income families and individuals with significant legal needs falling outside historical case types.

As well as serving clients, diversification of legal issues gives attorneys new opportunities to make a difference for those living in poverty. Recently, Pro Bono added special education and federal income tax disputes to its priorities. Tomorrow? Tomorrow's priorities will depend on the needs of low-income people as the 21st century advances.

Demographics offer a window into future directions and needs. US Census data indicates a more ethnically diverse New Hampshire population in the not-too-distant future. Although the state remains overwhelmingly white and of Western European descent, newcomers from South and Central American, Eastern Europe, Asia and Africa live and work in our communities. Laconia and Manchester are resettlement sites for refugee populations from Bosnia and the Sudan. The growth of the Hispanic population in the southern tier is evidenced by Latin radio stations, churches, businesses and non-profit organizations.

As with other segments of the population, from time to time newcomers require legal help to protect their rights or resolve legal issues. While once an occasional demand, today, Pro Bono staff spend increasing amounts of time locating translators for clients for whom English is a second language (ESL), although the numbers are less than 10 percent of total clients. Volunteer attorneys now handle several immigration cases per year. What a different picture 2028 will bring. The US Census Bureau predicts minorities will comprise 17.5 percent of New Hampshire's population.

A large immigrant population influences the needs for legal services in both immediate and long-terms ways. Immigrants need services related to their immigration status and influxes in particular populations influence residential, workplace and health care settings, which have associated legal issues."14 The Pro Bono Program must be prepared to meet the needs of newcomers and minorities through education and training for its staff and volunteer attorneys. The Program must plan with its legal services partners to assure the delivery system does not leave out those whose needs are complicated by cultural and language differences.

While the faces of New Hampshire people gradually become more diverse, sadly the faces of poverty remain the same-largely women and children. The "feminization of poverty" is a development first recognized in the 1970s, which continues to be true today, although the sex-ratio gap is narrowing somewhat in the United States. Pro Bono expects the vast majority of its future clients to be mothers and their sons and daughters. Stunningly, 41 percent of female-headed New Hampshire houses with children under the age of five live in poverty, according to 2001 US Census data. Overall, women are 50 percent more likely to live in poverty than men.15

Unless family law is completely removed from the courts and legal system, the Pro Bono Program at the half-century mark is certain to have some domestic cases on its priorities list. It appears Pro Bono's vision of the future may have circled around to the past, but family law referrals as described above are only part of the picture. The complete portrait is much more detailed and complex-diverse legal cases for an increasing diverse population using a mix of the traditional and what may seem to some as unconventional delivery options-unbundled representation, clinics and delivery systems fueled by technological changes not yet imagined.

Yet the seminal vision of Pro Bono shines as brightly as it did 25 years ago when a group of young attorneys launched the program. "We were just the most recent wave of lawyers who came into the practice of law understanding that part of being a lawyer was representing people who couldn't afford to pay," commented founding attorney Mike Hall. Recently, when a relatively new attorney accepted an eviction case through Pro Bono he said, "What's a few hours of my time if I can save someone from homelessness?"

Whatever the legal matter or method of providing service, "concepts of justice must have hands and feet. . ." (Warren E. Burger, former U.S. Supreme Court Justice.) And hearts and minds. Today and tomorrow.

ENDNOTES

  1. The Pro Bono Program recognizes and applauds the many attorneys who provide free legal services to the indigent outside the Bar's organized program as well as serving the public in additional ways. These contributions are highlighted in the Bar's new annual report on attorney volunteerism, "Giving Back," first published in June 2003, and available at www.nhbar.org under the Publications heading.

  2. American Bar Association, Civil Justice: An Agenda for the 1990s - Report of the American Bar Association National Conference on Access to Justice in the 1990s, 1991, p. 11.

  3. Legal Needs Study Advisory Committee, Policy Implications of the Massachusetts Legal Needs Study, May 2003, p. 3.

  4. Judith Maute, Changing Conceptions of Lawyers' Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations, 77 Tul. L. Rev. 91.

  5. This number includes both attorneys and paralegals, whether full or part-time, employed by New Hampshire Legal Assistance and the Legal Advice and Referral Center as the only statewide staff-model civil legal services programs devoted to general legal needs of the poor.

  6. Maute, p. 1.

  7. Arguments for and Against Pro Bono Reporting, 5 Apr. 2002, American Bar Association, 19 Nov. 2003 http://www.abanet.org/legalservices/probono/reportingarguments.html.

  8. NHBA Board of Governors Resolution, 1988.

  9. Mary Ann Sarosi, The Impact of Family Law on Pro Bono Programs, Dec. 2002, American Bar Association, 16 Oct. 2003, http://abanet.org/legalservices/probono.

  10. Financing of Pro Bono's poverty law continuing legal education seminars are made possible in significant part by funding from the Justice Grants Program of the NH Bar Foundation.

  11. John Norton, "Re: Unbundling Subcommittee of Pro Se Task Force Preliminary Recommendations Regarding Changes to NH's Ethical Rules", 11 Mar. 2002. Norton notes several rules requiring clarification including, Rules 1.2 ("Scope of Representation") and 1.4 ("Client Communications"), Conflicts Rules 1.7 and 1.9a as well as Rule 4.2 ("Communications with Persons Represented by Counsel").

  12. Ayn H. Crawley and Susan M. Erlichman, The Changing Face of Legal Practice: A National Conference on "Unbundled" Legal Services, Dialogue, American Bar Association, 9 Winter 2001.

  13. Jeannine McCoy, ABA Rural Pro Bono Delivery Initiative Application, 31 Aug. 2001.

  14. American Bar Association, "Deliberations of the Committee on Research About the Future of the Profession on the Current Status of the Legal Profession," 31 Aug. 2001, http://www.abanet.org/lawfutures/report2001, 13 Nov. 2003.

  15. Sara L. McLanahan, "The Feminization of Poverty: Past and Future," 23 Nov. 2003, http://www.onlin.wustl.edu/macarthur/

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