CROSSING THE CONNECTICUT RIVER may soon become much easier for New Hampshire and Vermont lawyers serving clients in the two states.

The New Hampshire Supreme Court is considering a series of changes to its bar admission rules to allow experienced lawyers from other states to be admitted in New Hampshire without taking the state bar exam. In concert with its Vermont counterpart, the court is also proposing that special provisions would apply to lawyers licensed in Vermont seeking admission in New Hampshire, and vice versa. Both states would allow lawyers from the other state with three years or more of experience to be admitted without taking its bar exam.

New Hampshire attorneys would especially benefit, since this arrangement would bypass Vermont’s "clerkship" requirement that any new attorney in Vermont must work under the supervision of another Vermont attorney for at least three months.

"All this would do is recognize the reality that there is already a lot of cross-border practice occurring up and down the river," said NH Supreme Court Associate Justice Linda Dalianis, chair of the court’s Advisory Committee on Rules. "We are interested in getting the input of the Bar on this idea," she said.

Dalianis did not specify a timetable for action, although she hopes to see the proposal enacted in 2002.

The reciprocity agreement with Vermont is modeled on a tri-state reciprocity arrangement recently adopted by the courts in Washington, Oregon and Idaho. Several years ago, Dalianis served on a committee that unsuccessfully sought to develop a tri-state consolidated bar admissions process. She said she hopes that representatives in Maine will now consider an agreement with New Hampshire similar to the proposed reciprocity agreement with Vermont.

The admission-by-motion proposal is a modest step in the direction of addressing the issue of regulating cross-border practice.

Under the proposed new admission rules, attorneys admitted by motion, whether from Vermont or any other state, would still be required to complete the NHBA’s Practical Skills course, which provides an introduction to New Hampshire procedures and practice. Attorneys admitted by motion would be subject to the same rules, discipline and fees as attorneys admitted after passing the bar exam.

The draft revisions of Supreme Court Rule 42 would require applicants seeking admission by motion to have:

• been admitted by bar examination in another state or the District of Columbia, and passed the Multistate Professional Responsibility Examination;
• graduated from an ABA-approved law school;
• been "primarily engaged in the active practice of law" in at least one state for five of the last seven years;
• current status of membership in good standing in all jurisdictions where admitted, and not be subject to discipline or facing pending discipline in any state;
• the ability to meet the character and fitness standards of New Hampshire.

The rule also provides a lower threshold of experience (previous three years in practice, instead of five of the last seven) for applicants from Vermont.

Admission by motion is not available to attorneys who otherwise meet the requirements but failed to pass the New Hampshire bar exam in the past five years, or who resigned from the New Hampshire Bar. (Those who resigned may be eligible for readmission by completing requirements of Rule 37 (12-a)).

While adding an admission-by-motion option would make it easier for out-of-state attorneys to become admitted in NH, the proposal’s supporters say that it also opens new doors for New Hampshire lawyers. Currently, New Hampshire attorneys can’t be admitted by motion in 14 of the 33 other states that allow admission by motion because those states – including Connecticut, New York, Pennsylvania and Virginia, to name a few – limit admission by motion to candidates from jurisdictions that reciprocate. (See related article with list.)

Adopting an admission-by-motion requirement would represent a major cultural change for New Hampshire. It was only 17 years ago that the US Supreme Court, in NH Supreme Court v. Piper, struck down a residency requirement that the New Hampshire Supreme Court imposed on attorneys seeking admission to practice in New Hampshire.

The case had been brought by Kathryn A. Piper, a resident of Lower Waterford, Vermont – about 400 yards from the New Hampshire border – who had passed the New Hampshire bar exam. At the time she took the exam in February 1980, she had submitted a statement of intent to become a New Hampshire resident. She later sought a dispensation from the court from the residency requirement, which the court denied. The court, represented by special counsel Martin Gross, argued that dropping the residency requirement might result in large law firms outside the state – that were unfamiliar with local customs and needs – controlling local legal practice. The court also argued that out-of-state lawyers would be much less likely to perform pro bono work in New Hampshire.

US District Court Judge Martin J. Loughlin summarily ruled in favor of Piper, agreeing that the Bar’s residency restriction violated the "privileges and immunities" clause of the US Constitution, and ultimately, the US Supreme Court upheld the ruling.

Whether for good or ill, multistate practice has become a reality. Today, there are more than 900 active members of the New Hampshire Bar who do not have an office address in New Hampshire, comprising 31 percent of the active membership, and another 850 out-of-state NH Bar members are on inactive status.

NHBA President-Elect Martha Van Oot, who also served on the tri-state bar admissions task force with Justice Dalianis, said the admission-by-motion proposal shows that New Hampshire is recognizing the multi-jurisdictional nature of law practice today, and she applauded the court’s steps in this area.

Kathryn Piper, currently on inactive status in New Hampshire, confines her law practice to representing Vermont children in abuse and neglect cases. She said the rule change encouraging Vermont and New Hampshire attorneys to be licensed "across the river" would greatly benefit both states. Even in family law, she said, there are "so many" cross-jurisdictional cases. "This makes so much sense. There’s such a huge need for it," Piper said.

Another rule change proposed by the Supreme Court would prohibit anyone who has failed the Bar exam four times from retaking the exam.

If you have comments on these rule changes, direct them to Justice Dalianis, NH Supreme Court, Noble Drive, Concord, 03301.

These bar admission rule changes will be discussed at a forum on "Regulating the Profession" at the NHBA Mid-Year Membership Meeting, Thursday, Jan. 24, 2002, from 4:00 to 5:00 p.m. (NHMCLE Credit available). NHBA President-Elect Martha Van Oot will moderate the program, which will feature Justice Dalianis and Justice James Duggan discussing the Bar admission proposal, as well as Robert Varney and James DeHart reviewing a significant proposal to restructure the Professional Conduct Committee. (See page 10 for an article on the PCC changes.)

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