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Bar News - February 20, 2004 Challenge of Legislation on Unified Bar to be Argued Next Month By: Russell F. Hilliard To All Members of the Bar: I am writing to update you on the status of the legislation seeking to deunify the New Hampshire Bar Association, and also severely restrict its legislative activities. While you have probably been reading about this in previous issues, it is now time for an update. By way of background, the New Hampshire Bar Association has been unified, i.e., membership is a condition to practice in this state (as opposed to attorney registration being handled by the state or court directly), since a Supreme Court ruling in 1968. New Hampshire is one of more than 30 jurisdictions having a unified state bar. Our unified status has been challenged a number of times over the years, both by individuals and through unsuccessful legislative efforts. In 2002, the Legislature did pass a measure addressing these issues, but it was vetoed by then-Governor Jeanne Shaheen. Very similar legislation passed in 2003, House Bill 175, and it was signed into law by Governor Craig Benson. The bill requires the New Hampshire Bar Association to conduct a referendum, in conjunction with the election of officers, asking: "Shall membership in the New Hampshire Bar Association be required for all attorneys licensed to practice in this state?" If the vote is in the affirmative, the Bar would remain unified, but the referendum would have to be repeated every five years. If the vote is in the negative, the Bar would then be deunified. The other significant portion of the bill would impose severe restrictions, beyond the guidelines established by the Supreme Court in Petition of Chapman, on any legislative activities so long as the Bar remains unified. House Bill 175 became effective July 1, 2003, and the New Hampshire Bar Association immediately challenged its constitutionality by a Petition for Original Jurisdiction with the New Hampshire Supreme Court. Following acceptance of the Petition, briefs were filed by the Bar and the Attorney General. The Speaker of the House and the Senate President also filed an amicus brief supporting the legislation. Oral argument in this case has now been scheduled for March, 10, 2004. Although the subject matter of the statute is the unified status of the Bar, the central issue in this case is separation of powers: which branch of our government determines whether the Bar should be unified – the judiciary or the legislature. The Bar has argued that it is a matter to be determined by the judicial branch, while supporters of the legislation argue that there is sufficient legislative authority for the measure. I strongly believe that the profession and the public are both better served by a unified organization; more discussion about this will appear in future issues of Bar News. But while the merits of a unified organization have been, and will continue to be, discussed within the Association, I believe that it is necessary to support the Court’s authority to regulate the profession. Documents filed in the Supreme Court by all parties in this matter are posted on the Bar’s Web site for your easy access. If you have any questions or comments on this important issue, please feel free to contact me at my office at 224-7791 or rhilliard@upton-hatfield.com.
Russell F. Hilliard is 2003-2004 NHBA President and practices with the law firm of Upton & Hatfield, with offices in Concord, Hillsborough and North Conway.
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