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Bar News - January 19, 2001 Chapman Decision Guides Bar's Role in Legislative Advocacy By: By Dan Wise JUDICIAL REFORM and other matters related to the legal system are on the legislature's front burner this session. Leaders of the New Hampshire Bar, following an authorization vote by the NHBA Board of Governors in September, are taking a more active role in discussing proposed legislation and other remedies to concerns raised about the integrity about the judicial system in the wake of last summer's impeachment of the Chief Justice of the New Hampshire Supreme Court. However, any efforts by the Bar to inform or influence the legislature are limited by its status as a unified Bar. Those limits are specifically spelled out in a 1986 New Hampshire Supreme Court decision, Petition of William L. Chapman, that elaborated on that court's original decision, in 1968, establishing a unified Bar. This article provides a brief overview of the guidelines laid down by the Chapman decision. By way of background, the Chapman petition was filed in response to a vote by the Bar Association's Board of Governors to oppose a package of tort reform bills being considered in the state legislature. Chapman, a Concord attorney, argued that the board's opposition to tort legislation was beyond the mandate of the Association's constitution to " confine the activities of the association to issues related to the 'particular interests and competence'' of lawyers (Unified New Hampshire Bar, 112 N.H. at 207, 291 A 2d at 601.) In response to the Chapman complaint, the court issued a 3-2 decision that the Bar should limit its "activities before the General Court to those matters which are related directly to the efficient administration of the judicial system; the composition and operation of the courts; and the education, ethics, competence, integrity and regulation, as a body, of the legal profession." After explaining how "tort reform" did not fall under the definition of "administration of justice," the court added: "We believe that circumspection is the watchword to be observed by the Board. Where it can reasonably be argued that an issue is outside the scope of its authority, the Board should take no position on the matter. Where substantial unanimity does not exist or is not known to exist within the Bar as a whole, particularly with regard to issues affecting members' economic self-interest, the Board should exercise caution. Positions taken by the Association and its Board should be tailored carefully and limited to issues clearly within the Association's constitutional mandate." During a typical legislative session, the Bar's standing Legislation Committee meets regularly and reviews proposed or pending legislation to provide recommendations to the NHBA Board of Governors as to whether the Bar should take positions on issues. The Legislation Committee uses the guidelines set forth in Chapman by subjecting any potential advocacy to the following three-step process: 1. Each of the following questions must be answered in the affirmative: Is the bill of significant interest to lawyers? Does the bill pertain to either: the administration of justice; composition and operation of the courts; or the practice of law and the legal profession? Should the Bar Association take a position on the bill? 2. The Legislation Committee then recommends a specific legislative approach-frequently to "provide information" rather than to advocate for or against. The Board of Governors then considers this recommendation at its next meeting. 3. If the Board of Governors decides to take a position on a particular bill, the Bar President testifies or designates someone (often the NHBA legislative representative) to provide testimony or other information to the General Court, or in the case of federal legislation, to the state's congressional delegation. Concord attorney John D. MacIntosh works on a contract basis as the Association's legislative representative, monitoring legislative activity and serving as a liaison to the Legislation Committee and to Bar leaders. This year, the flurry of bills regarding judicial term limits and other issues raised during the impeachment led the Board of Governors to direct the Bar leadership to begin researching these issues before the start of the legislative session. The Board of Governors, has concluded, as it has in the past, that Chapman does permit the NHBA to take affirmative or negative positions on measures that relate to administration of the judicial system and the composition and operation of the courts. The Chapman decision is available on the Bar's Web site (Click Here). The decision also includes a dissent written by William Batchelder joined by then-Chief Justice John King, that disagreed with the majority on the necessity to narrow the Bar's legislative activity, and a concurring opinion by Associate Justice David Souter that provided a specific rebuttal of the dissent. The majority opinion was written by then Associate Justice David A. Brock. While the Bar Association intends to represent and advocate for general principles and improvements that will preserve the integrity of the state's legal system, the Bar cannot precisely represent the views of individual members of the Bar on these important issues. Also, the influence of an official organization is substantial but it has its limits. The Bar Association encourages all of its members to communicate to their fellow citizens, either through personal contacts, letters to the editor, media appearances or speaking dates, and in contacts with their local legislators, on the principles they cherish, and how individual members believe legislative proposals will affect our state's justice system.
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