SUPERIOR COURT JUDGE Edward Fitzgerald last month heard a request for a temporary injunction barring non-lawyer and judicial activist Theodore Kamasinski from practicing law. The injunction is sought by the New Hampshire Bar Association and the NH Attorney General's Office, which are authorized to enforce RSA 311:7 regarding the unauthorized practice of law.

The injunction request came after NHBA President Peter Hutchins and Attorney General Philip McLaughlin were named as defendants in a declaratory judgment action filed by Kamasinski, who is seeking a court decision affirming that his activities in and out of court on behalf of others do not constitute the unauthorized practice of law (UPL).

Less than a minute into the Jan. 14 hearing at Merrimack County Superior Court, Kamasinski, who is representing himself, interrupted Joseph McDowell, the Manchester attorney representing the Bar (on a pro bono basis, assisted by Concord attorney Joshua Gordon) to assert that the discussion should focus not on Kamasinski's activities, but on how to define the term "commonly" for the purpose of determining violations of RSA 311:7. He said the Bar and the attorney general were seeking to define it as "anything Kamasinski does."

McDowell cited Kamasinski's continuing involvement in the Hay case, where he assisted the litigant with briefs despite an order last fall by Superior Court Associate Justice Douglas Gray (retired but sitting by special assignment) ordering Kamasinski to withdraw from any involvement in the case. Gray's ruling disqualifying Kamasinski found that the non-lawyer was commonly practicing law in violation of the UPL statute, and relied on the same reasoning used only a few days earlier by Superior Court Associate Justice Robert Lynn, who had disqualified Kamasinski from representing a party in a divorce case.

McDowell and Daniel Mullen, chief of staff for the NH Attorney General's Office, both contended that Kamasinski's continued involvement in the Hay case constituted disregard of a court order. McDowell also cited correspondence from Kamasinski during a court case arising from a dispute between Kamasinski and a business that he had represented in contract negotiations and other matters. In the documents, Kamasinski said he writes 250 to 350 legal briefs a year and specifically described legal tasks such as negotiating and drafting contracts performed on behalf of the client.

At the hearing, Kamasinski acknowledged that his principal source of income is legal research and brief writing, and fees from a legal database he has developed. He said many of his clients are attorneys in New Hampshire and other states, and defended his right to do such work. Kamasinski said he limits his court appearances to no more than "five or six" cases in a year. He briefly traced the history of the concept of UPL, observing that it was concern over assuring competence that led to lawyer licensure and, later, UPL statutes. Kamasinski said no one has asserted that he lacks competence to legally represent others.

Kamasinski also attacked the validity of Judge Lynn's ruling because the judge acknowledged that normally he would recuse himself from hearing a matter in which Kamasinski was involved. (For details on this matter, go to For the Public/News Releases to read the parties' filings and relevant excerpts from Judge Lynn's order disqualifying Kamasinski.)

Mullen argued that some of the New Hampshire cases that have allowed repeated representation in court by non-lawyers have differed in nature from Kamasinski's involvement in legal matters. "The exceptions for people of good character to make occasional appearances in court does not allow for a blanket exception to file appearances as a matter of course," Mullen said. In a NH Supreme Court case involving non-lawyer John Settle, Mullen noted, the court said there was "no single factor" used to determine what constitutes "commonly practicing" law.

Mullen also argued that the attorney general is not required to demonstrate "irreparable harm" to obtain an injunction. By the nature of the attorney general's position as chief law enforcement officer for the state, it is sufficient for the attorney general to prove only that Kamasinski has been defying court orders, Mullen said.

"He's practicing as frequently as he can - and that's commonly," McDowell told the court in his summation. To bolster his case, McDowell is asking attorneys who may have information or documentation of Kamasinski's legal activities in New Hampshire to contact him.

Judge Fitzgerald advised Kamasinski that he would not give Judge Lynn's conclusions about Kamasinski's practices "a preclusive effect," nor would he necessarily accept Lynn's definition of the term "commonly" in ruling on the matter. By press time in late January, Fitzgerald had not ruled on the injunction request.

Editor's Note: In a related matter, the House at press time held a hearing on HB 1420, which would create exceptions to the prohibition on non-attorneys practicing law. According to analysis of the amended bill, it would allow "persons who are not licensed by the Supreme Court to practice as attorneys to be the personal representatives in court for no more than six citizens a year." Bar News will follow up on any developments on this measure.

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