BY A 3-1 MAJORITY, Bar members voting in the referendum on the question of mandatory membership in the Bar Association favored the continuation of the unified Bar. Russell Hilliard, NHBA president for 2003-4, announced the result of the referendum at the 2004 NHBA Annual Meeting.

The ballots were counted at the direction of the NHBA Board of Governors following the resolution of the Bar’s challenge to the constitutionality of the statute that required the Bar to hold the referendum. (The June 14 ruling struck down the statute as a violation of Part I, Article 37 of the NH Constitution.)

By a 74-26 percent margin, (1,379 to 487), Bar members voted yes on the question, "Shall membership in the New Hampshire Bar Association be required for all attorneys licensed to practice in this state?" Hilliard said: "We are gratified by the support of the Bar membership of this principle. We believe that it represents a victory for the profession and the public, as the unified Bar serves both the membership and the public."

Ballots were mailed to 4,092 members eligible to vote (those on active status).

Ballot counting took place at the 2004 Annual Meeting. Pictured are Richard Uchida,
Jeannine McCoy and Richard McNamara who helped. Ned Gordon next to Uchida also participated, along with many others.

James Gleason, a Henniker attorney who succeeded Hilliard as NHBA president for the 2004-5 year, said that the counting of the ballots cast in the referendum is the first step in efforts by the Bar to gather member input on priorities and services provided by the Bar Association. "We have already been preparing to seek members’ views about the work and value of the Association through a series of surveys," Gleason said. "We are constantly striving to improve our ability to fulfill our operating motto: ‘Supporting members and their service to the public and the justice system.’"

The Bar Association counted the ballots following the Supreme Court’s June 14 decision resolving the Bar’s challenge to RSA 494-a, a statute passed last year that required the Bar to conduct a referendum among members asking whether mandatory Association membership should be required as part of licensure. The statute required that if members voted in favor of unification, the referendum would be required to be held at least once every five years. The statute also imposed limitations on lobbying activities that were stricter than the guidelines on legislative activities laid down for the unified Bar by the Chapman decision in New Hampshire.

In a 4-1 decision written by Justice Joseph P. Nadeau, the Court wrote that it was reaffirming "an established principle; that the inherent authority to regulate the practice of law lies with the judicial branch of government and includes the power to create a unified Bar." While upholding the court’s authority to regulate the Bar, Justice James E. Duggan dissented noting that "The issue is not ripe for review." And, Justice Linda S. Dalianis, in a special concurrence, said she was not persuaded that past rulings necessarily extended to whether unifying the Bar was "part of [the] inherent power" of the court to regulate the legal profession. (See ruling excerpts on page 5.)

The Bar had challenged the statute on several grounds, and the Bar’s case was argued on March 10 before the Supreme Court by former NHBA President Frederic K. Upton, who was president in 1972, the year that the court voted to make permanent the unified Bar. Suzanne M. Gorman, senior assistant attorney general, defended the constitutionality of the statute. An amicus brief also was filed by Richard J. Lehman and Betsy Miller, counsel for the Senate and the House, respectively. (The briefs and motions in the case are archived under News Releases.)

With the Bar’s annual officers’ election deadline (ballots mailed March 15 with return date of April 15) looming, the Bar asked the Court for instructions. In response, the Court ordered the Bar to conduct the referendum and the ballots sealed while the Bar’s challenge of the statute mandating the referendum was being considered. The Supreme Court ruled June 14 that the referendum requirement interfered with a core judicial function of regulating the practice of law. At that time, the court vacated the earlier order sealing the ballots, effectively leaving the disposition of the ballots to be decided by the Bar.

At a subsequent meeting of the NHBA Board of Governors, the board voted to have the ballots opened and counted. The ballots were counted at the Annual Meeting, and the count was verified while preserving the anonymity of the voters. The result was announced at the Annual Meeting banquet on Saturday night. Bar members heartily applauded Hilliard’s announcement.

In his remarks, Hilliard said the deunification threat posed by the statute, and the ensuing referendum presented "an opportunity brilliantly disguised as an insoluble problem." The discussion of the merits of the unified Bar —as distinct from the separation of powers issue raised in the court challenge to the statute— proved healthy for the Bar, Hilliard said. "It forced us to focus our thoughts on why a unified Bar is good for the Bar and for the citizens of our state. That challenge took my entire year as president to resolve."

While pleased with the result of the members’ vote on the unification issue, Gleason said the Bar leadership did not see the referendum as the most effective means of obtaining the views of the membership on the important issues facing the Association. "The Bar leadership has always been interested in the views of the membership on how well the Bar is serving them. The referendum question dictated by the statute, however, provided little guidance because whether someone voted "yes" or "no," there was no indication as to why the member voted that way. We thank members for participating in the referendum, and we urge them to participate in the survey process as it rolls out in the next two years. We look forward to considering their views as we ask specific questions to identify priorities and needs that the Bar Association should be working to address."

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