THE NH BAR ASSOCIATION has filed an answer to a petition for a declaratory judgment filed by Theodore Kamasinski and cross-petitioned to temporarily and permanently enjoin the non-lawyer from appearing in New Hampshire courts on behalf of others.

Attorney Peter E. Hutchins, named as a defendant in Kamasinski’s lawsuit because of his position as president of the New Hampshire Bar Association, is represented by Joseph F. McDowell, of McDowell and Osborn in Manchester, and Joshua L. Gordon, a Concord appellate attorney, who have agreed to represent the NHBA in this matter on a pro bono basis. Also named in the suit is Attorney General Philip McLaughlin. Both the attorney general and the Bar Association are specifically authorized to bring petitions alleging violations of RSA 311:7 regarding the unauthorized practice of law. (See accompanying selection of relevant statutes.)

The Bar’s answer and cross-petition, as well as Kamasinski’s petition, are posted on this Web site under "News Releases."

The Bar’s petition responds, point-by-point, to the 15 "statement[s] of facts and observations of law" made in Kamasinski’s petition. On a number of points, the Bar asserts that it lacks the information to contest the specific allegations Kamasinski makes, but asserts that the "facts" or law cited are "irrelevant to the issue to be decided in this matter, i.e. whether the Petitioner [Kamasinski] should be permanently and temporarily enjoined from appearing on behalf of litigants in the courts of the State of New Hampshire due to a violation of RSA 311:7."

However, the Bar does argue that any interpretation of RSA 311.7 should be based on its "plain meaning," rather than assertions of legislative intent as gleaned from sources outside the statute. (The petition cites two recent NH Supreme Court decisions on this point, Franklin Lodge of Elks v. Sally Marcoux, 99-813 decided Oct. 12, 2001 and Phetteplace v. Town of Lyme, 144 NH 621, 624, decided last year.)

In his petition, Kamasinski contends that Superior Court Associate Justice Robert Lynn wrongly disqualified him from representing a litigant in a divorce action. 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.

In his petition for declaratory judgment, Kamasinski asks Merrimack County Superior 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."

In its petition, the Bar asserts that the prohibition against the practice of law by non-attorneys contained in RSA 311:7 "represents a significant and comprehensive policy of important consumer protection on behalf of the citizens of New Hampshire." The Bar cites a number of provisions ensuring competence and good character that licensed members of the Bar must meet in order to practice law, including: obtaining a law degree from an accredited law school; passing the nationally administered ethics exam and two-day bar exam; demonstrating "good moral character" as determined by a background investigation by the Supreme Court’s Committee on Character and Fitness; participating in at least 12 hours of continuing legal education each year; contributing assessments annually for the operation of the Professional Conduct Committee and the Public Protection Fund; adhering to regulation of client trust accounts; providing information for court review and approval of fees and expenses in cases involving minors and other cases, including contingent fee cases; and following the rules of the Code of Professional Conduct as regulated by the Professional Conduct Committee, whose authority includes recommending suspension and disbarment.

Kamasinski’s petition also alleges that Judge Lynn’s order is "fundamentally flawed" because the judge was biased against Kamasinski and the woman he sought to represent. In his order disqualifying Kamasinski, Lynn acknowledged that he would have recused himself from adjudicating any matter involving Kamasinski, but that he would not step aside from the matter at that stage of the case. Kamasinski entered an appearance as attorney-in-fact in the divorce to replace an attorney whom the client, Lisa Holmes, had asked to withdraw. The divorce case was first filed in late May 2000 and was randomly assigned to Judge Lynn, who had already ruled on a number of pre-trial motions and had scheduled the start of the trial for the beginning of November.

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