THE NH HOUSE, by a voice vote, has passed HB 175, which seeks to require the New Hampshire Bar Association to hold a referendum on whether a majority of the members favor a unified Bar. The bill also proposes tighter limits on the Bar’s legislative advocacy efforts as long as it remains a mandatory membership organization.

The bill, sponsored by Rep. Robert Rowe, a member of the House Judiciary Committee, sets forth the specific wording of the question that the Bar would be required to ask: "Shall membership in the New Hampshire Bar Association be required for all attorneys licensed to practice in this state?" If a majority of Bar members voted affirmatively to remain mandatory, future referenda would be required every five years.

The bill also contains provisions that would severely limit the Bar’s legislative activities, allowing the unified Bar to speak only on "those matters which are directly related to the regulation of the legal profession and improving the quality of legal services available to the people of the state," and where it "has determined that substantial unanimity exists within the Bar as a whole in agreement with the position taken on a matter."

The Bar’s unified status dates back to a NH Supreme Court decision in 1972 that made the Bar’s mandatory status permanent following a three-year trial. Currently the Bar’s limited legislative activities are governed by guidelines set forth in two decisions: a 1990 US Supreme Court decision, Keller v. State Bar of California, that found a legitimate public policy purpose in a state requiring attorneys to belong to a bar association and that set forth general restrictions on political or legislative activities, and the 1986 Chapman decision by the NH Supreme Court that set specific limits on the NH Bar’s legislative activities. In addition to limiting the Bar’s advocacy to areas of 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," the Chapman decision notes that "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 [of Governors] shall exercise caution."

After careful consideration, the NHBA Board of Governors this year has voted to oppose HB 175. Bar leaders believe that the bill is an unwarranted intrusion on the workings of a private association and may infringe upon the judicial branch’s role of regulating the legal profession.

Last year, an almost identical deunification referendum bill passed both chambers of the Legislature and was vetoed by Governor Jeanne Shaheen. In a strongly worded veto message, Shaheen said she believed the bill "was motivated by a desire for revenge" due to legislators who are "unhappy with positions taken and statements made by some in the Bar Association leadership during the last few years." Shaheen called the bill "unnecessary, inappropriate and frivolous" and said that she believed "lawyers are quite capable of protecting their own rights." (The veto message was published in the June 7, 2002 issue of Bar News.)

The Senate Judiciary Committee will next consider the bill.

For more information: In upcoming issues of Bar News, the Bar will publish commentaries on various aspects of the bill, including an article bythe sponsor of the bill, Rep. Rowe. The Bar Association’s leadership will also comment, describing some of the economic or practical implications for attorneys if the administration and licensing of Bar members were to be handled differently. The bill, as amended and passed by the House, can be viewed at http://www.gencourt.state.nh.us/legislation/2003/hb0175.html.

The Chapman decision and a chart listing the positions the Bar has taken on a handful of carefully selected bills is posted under "Publications/Legislative Information." In many cases, instead of taking a "support" or "oppose" position, the Bar authorizes its legislative representative, attorney John MacIntosh, to provide information regarding the potential implications of proposals.

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