PENDING LEGISLATION PROPOSES major changes in the regulation of lawyers. At press time, the governor had not signed the bills and it is possible that some could be challenged as infringements on the judicial branch's authority to regulate those who practice in the state's courts.

Relating to the courts, the Legislature has passed a proposed constitutional amendment, CACR 5, which would give the Legislature ultimate authority over court-enacted rules. The constitutional question will appear on the general election ballot in November. Another measure, also awaiting the governor's signature, creates a one-county pilot program in which parties would be allowed a single pre-emptory challenge of a judge.

"These bills appear to have been passed in an anti-lawyer, anti-court climate in the Legislature," said NHBA President Peter E. Hutchins. Regarding the legislation directed at lawyers, he said, "It is certainly a fair question to ask whether the Legislature has the authority to make some of these changes, since the legal profession is principally regulated by the Supreme Court. The organized bar is going to carefully consider its position before further responding."

The most significant measures passed by both chambers of the Legislature include:

Consumer Protection Act extended to lawyers (HB 1429). This bill repeals language in the Consumer Protection Act that excluded members of regulated professions, including lawyers, accountants and physicians, from its provisions. The new bill, however, continues the exemption for banks and securities, insurance and other financial service providers. The Consumer Protection Act provides for treble damages and punitive damages if transactions are proven fraudulent.

Bar Association mandated to poll membership on unification (HB 465). This bill requires that by Oct. 1 of this year, the Bar "shall conduct a poll asking its members whether...membership in the New Hampshire Bar Association be mandatory in order to practice as an attorney in this state." The legislation directs that the "counting of ballots shall be entirely open to the public" and that all ballots be made available to a legislative study committee reviewing the status of the unified bar. The bill also requires that the Bar create a mechanism to allow Bar members to "opt out" of paying that portion of their dues used for lobbying activities. (Currently, members who believe the Bar is lobbying on a bill that falls outside the guidelines established by court rulings may ask for a refund of the portion of dues used to address that specific legislative initiative.)

Legislative task force to define the practice of law (HB 1420). This bill, which originally called for allowing any non-lawyer to represent up to six clients a year in NH courts, was amended by the Senate to create an 18-member committee with the mandate of defining the practice of law. The bill, which limits the number of lawyer-members, specifies the committee's composition as:

• three legislators appointed by the leader of each chamber, "only one of whom [from each chamber] may be an attorney;"
• two non-lawyers "who have represented clients before New Hampshire courts" and two persons "who were represented in proceedings by persons who are not members of the New Hampshire Bar," appointed by legislative leaders;
• One representative each from the New Hampshire Bar Association, Franklin Pierce Law Center, and the New Hampshire Bankers' Association, and a licensed real estate broker, appointed by the NH Real Estate Commission. The judiciary would be asked to appoint a retired judge and a court clerk. The governor would be asked to appoint a victim advocate, and the attorney general would appoint an attorney from the Consumer Protection and Antitrust Bureau.

In sum, as few as one-third of the positions on the task force could be lawyers or Bar members.

The Bar had taken official positions on some of these bills, but hasn't taken a stance on the final forms the legislation has taken. As a unified Bar, the NH Bar Association follows a procedure for considering legislation that adheres to U.S. and NH Supreme Court decisions that uphold the ability of unified bar associations to lobby in areas relating to the administration of the judicial system, operation of the courts and to the qualifications and regulation of the legal profession. The Bar had only provided information on the deunification, Consumer Protection Act and non-lawyer practice bills in their original forms, and had opposed an earlier version of CACR 5.

Judicial Rules Amendment Destined for Ballot

Voters this November will be asked to approve a constitutional amendment (CACR 5) that gives the Legislature the ability to override court rules.

If passed by a two-thirds majority of those voting in the November general election, the constitution would give the Legislature the authority to supercede court rules unless the legislation would "abridge the necessary adjudicatory functions for which the courts were created" or was "contrary to the provisions of the constitution." House Judiciary Committee Chair Henry W. Mock has called CACR 5 "the linchpin" of judicial reform efforts. The proposed amendment underwent significant revision in the Senate, including the deletion of a controversial passage that specifically negated the separation of powers clause in the consideration of conflicts between statutes and court rules.

Supporters said meaningful judicial reform won't be possible without the clarity they believe CACR 5 will provide; opponents fear the new language will generate additional friction between the courts and Legislature as the definition of "necessary adjudicatory functions" is worked out.

Also passed this session and awaiting the governor's signature is HB 134, which will permit parties in civil cases "one challenge to the justice assigned to the case in the superior and district courts in one county." The measure passed by the House allowed pre-emptive challenges of judges statewide; in the compromise worked out in the Senate, the option will be allowed in one county on a pilot basis, and a legislative study committee will oversee the experiment.

The judicial branch opposed HB 134 in its original form, believing it would promote "judge-shopping," unnecessary delays in litigation, and would cause scheduling problems, particularly in smaller counties and communities. The Bar's Board of Governors also opposed the House version of the bill.

NH Legislation on the Internet

YOU CAN CHECK on the status of legislation in the New Hampshire General Court through the state's Web site. The Legislature's homepage on Webster, the state government's Web site, can be found at http://www.state.nh.us/gencourt/gencourt.html. The General Court portion of the state site contains up-to-date listings of bills, hearing schedules, and contact information for legislative leaders and committees. The homepage also contains RSAs and links to the rest of state government.

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