THE FALLOUT FROM the impeachment of Supreme Court Chief Justice David A. Brock and the corresponding resentment and suspicion of the Supreme Court generated among legislators has led to a searching examination of the court's disciplinary functions.

A proposal (HB 280) that would put all disciplinary functions regarding lawyers and judges under the control of a committee consisting solely of legislators was the subject of a House Judiciary Committee hearing earlier this month. Testifying at the hearing were representatives from both disciplinary committees, Bar leaders, other attorneys and legislators and legal system critics. The discussion touched on some legislators' interest in reining in the authority of the Supreme Court to police the bench and Bar, as well as the practical problems faced by both committees, which rely on volunteers to investigate and deliberate discipline complaints against judges and lawyers.

Testifying as a sponsor of HB 280 was Rep. Paul Mirski (R-Enfield) who contended that the purpose of the bill was to "restore the rightful oversight role [of the Legislature] over the functionaries of the court system." Mirski contends that the NH Constitution provides for independence of individual judges, but did not establish the judiciary as a co-equal third branch of government. Last year's vice chair of the House Judiciary Committee, Andrew Peterson, testified in opposition to the bill. "Although it became clear to me from my work on this committee last year of the need for judicial reform, I'd hate to see us reform our judiciary in such a way as to decrease its independence and make it more politicized. The courts are the ultimate protectorate of our individual rights," Peterson said. He also expressed opposition to term limits and instead suggested that the judicial discipline committee be given the power to oust judges for cause. Committee member Jack Pratt countered that rather than empowering an independent committee with the ability to remove judges, the Legislature should retain that authority with the "bill of address" process.

Among those who testified was Wilfred L. "Jack" Sanders, a Hampton attorney who co-chaired a group that earlier this year drafted a proposal for a Judicial Conduct Commission independent of the Supreme Court. Sanders acknowledged that a key piece of the proposal-who would administer the ultimate discipline actions against judges-has not yet been addressed by his group, although he suggested that any discipline system would have to include a right of appeal to the Supreme Court to preserve the due process rights of judges.

Several committee members questioned Sanders, former PCC member George Hamilton (a non-lawyer) and current PCC chair Robert Varney about the confidentiality rules that previously governed both committees. In recent years, both committees have made their actions public, starting from the "probable cause" stage when complaints are determined by the committees to be worthy of formal hearings. The PCC process, in particular, is considered one of the most open in the country, according to a recent article in Lawyers Weekly USA. But committee members suggested that the previous cloak of secrecy implicated the court in creating, as Rep. Alf Jacobson put it, "a shield to protect lawyers."

Much of the discussion focused on the workings of the Professional Conduct Committee. NHBA president-elect Peter E. Hutchins, representing the Bar Association in opposing the concept of bringing the PCC under legislative control, said such a move would not meet the needs of reform. Hutchins said that it is desirable that attorneys participate in the disciplinary process as committee members, not only because of their technical knowledge, but because as professionals they should retain "a sense of ownership" in the process. "If we do not police ourselves, if discipline is imposed solely from the outside, it will simply become another adversarial situation. Under the current system, a culture develops where we expect professionalism of each other," Hutchins said.

PCC Chair Robert Varney made the distinction that attorneys, unlike judges, are not public figures and should not be subject to discipline imposed outside of the judicial branch. He also questioned the feasibility of a legislative committee dealing with the mountain of work facing the committee. Varney said that while the volume of complaints against attorneys hasn't increased substantially, the amount of work involved in investigating and processing them has increased. In the past 10 years, Varney said, the number of complaints that are pending longer than one year has grown from 15 percent to 38 percent.

"The most immediate improvement to the existing process can be obtained by augmenting this agency with an adequate professional staff of attorneys and investigators devoted to investigating and prosecuting complaints backed up with sufficient support and accounting staff adequate to bring matters to prompt resolution," said Varney. He added that the committee should continue to report its findings to the Supreme Court and he advocated abandoning the de novo process that currently requires findings of substantive discipline be heard by a judicial referee before sanctions are decided upon by the Supreme Court. "We are the only state with such a lengthy procedure," Varney said.

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