FOLLOWING ORDERS BY two Superior Court judges disqualifying him from representing others in court, non-lawyer Theodore Kamasinski has filed suit seeking a declaration from the trial court that he is not engaged in the unauthorized practice of law.

Peter Hutchins, president of the New Hampshire Bar Association, along with Philip McLaughlin, the NH attorney general, are named as defendants because they have the statutory authority to enforce the unauthorized practice of law statute. Hutchins said the Bar will "vigorously defend" its position and also will act to temporarily and permanently enjoin Kamasinski from again appearing in the courts of New Hampshire on behalf of any person or entity other than himself. The Attorney General’s Office has not commented on what position it will take.

Kamasinski, a persistent critic of the judicial system and some lawyers, has appeared in court on behalf of litigants in an unknown number of cases over the past few years. He has filed numerous complaints against lawyers and judges with disciplinary authorities, and frequently testifies at legislative hearings on judicial reform and judicial confirmation hearings. He also researches and writes legal briefs, and acknowledged in court that he earns his living principally through his legal work.

(The incidence of legal work performed by unlicensed persons is even more prevalent outside of the courtroom. Contrasting perspectives on this issue appear on pages 4 and 5.)

On Oct. 15, 2001, Superior Court Associate Justice Robert J. Lynn issued a detailed order disqualifying Kamasinski from representing a party in a divorce, citing RSA 311:7, which provides that "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 prescribed in RSA 311.6." The judge contended that Kamasinski’s activities – including his admission that he represents clients in court up to five times a year – "appear to fit squarely within the definition of something done ‘commonly.’" The following week, Superior Court Senior Associate Justice Douglas Gray, in another case, disqualified Kamasinski from continued representation of another party, citing Lynn’s order.

Kamasinski’s petition, filed October 23 in Merrimack County Superior Court, contends that Lynn’s order is "fundamentally flawed due to Justice Lynn’s on-the-record acknowledgment that he is disqualified from adjudicating any matter involving" Kamasinski. Furthermore, Kamasinski asks the court to accept his reasoning that the prohibition on non-lawyers should include a broad definition of "commonly" practicing law. Kamasinski said that the statute should be considered in the wider context of allowing citizens to have "effective access to the courts."

Kamasinski’s petition also relies on the NH Supreme Court’s recently adopted Rule 8.5 that extends the disciplinary authority of the Professional Conduct Committee to include non-lawyers. Kamasinski said that the new rule "suggests that the Supreme Court construed the RSA 311:7 ‘commonly’ prohibition in the broadest sense." If the court were defining "commonly" in a more narrow sense, "so as to restrict a non-lawyer representative to one or two clients or one or two occasional appearances before the court, there would be no genuine purpose in enacting a disciplinary scheme," Kamasinski wrote.

In the case before Lynn, Lisa A. Holmes had retained Kamasinski after contending she was dissatisfied with her attorney. Immediately after filing an appearance in the divorce case, according to Lynn’s decision, Kamasinski said that the case would have to be assigned to another judge because Kamasinski appeared on Judge Lynn’s "recusal list." (Lynn said he did not include Kamasinski on his recusal list because Kamasinski is not a lawyer.) Lynn held that Kamasinski’s appearance was "a deliberate effort at ‘judge shopping.’"

Lynn acknowledges in his order that, for several reasons, he would have recused himself from any case in which Kamasinski was a party or was serving as an attorney in fact. If Kamasinski had entered an appearance as the plaintiff’s attorney in the beginning of the case, Lynn said, he "unquestionably" would have recused himself. However, Lynn determined that the recusal question was more complex since the divorce case was at a more advanced stage. Lynn said justice required that he balance the plaintiff’s right to be represented by Kamasinski against the inevitable delays that would result from Lynn’s recusal. In addition, he questioned the timing of Kamasinski’s entry into the case, writing that it suggested "that it was a tactical move to force my recusal."

"Plaintiff has made no secret of the fact that she strongly disagrees with certain of the rulings I have made in the case thus far," Lynn wrote.

Appealing the disqualification orders of Judges Lynn and Gray was not an option for Kamasinski since he is not a party in either case.

Click here to read the Kamasinski Petition and NHBA Response.

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