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Bar News - July 16, 2010


Morning Mail: ‘Delighted’ to See Criticism of Bench

I was excited and delighted to see Nancy Richards-Stower’s letter (May 14, 2010) criticizing the US Supreme Courts’ rulings. Although Nancy and I do not always agree, I agreed with her criticism. More importantly, it was exciting to see a member of the Bar openly criticize the majority decision of the highest Court of the land.

I have been a compulsory member of the NH Bar Association and forced to pay for lobbying activities and production and subscription of the NH Bar News for 19 years. In those 19 years, I can recall only two instances where any criticism was leveled against the New Hampshire judiciary. Once Vinnie Martina criticized the very notion of direct criminal contempt and 12 years ago, I wrote an article ["Judicial Independence – and Accountability," appeared in the September 16, 1998 issue of Bar News.] calling for a more open and inclusive judiciary. My article was rejected by the then-editorial board of the NH Bar Association. I tried to speak to the then-chair of the Board who told me I was engaged in ex parte communication! Obviously that person had no clue what an ex parte communication meant or thought of herself as a judge engaged in some judicial activity. Finally, and only after the intervention of the Board of Governors, my article was published and was in fact well-received by the Bar, the Bench, and the New Hampshire Legislature.

A very superficial and approximate content of the NH Bar News can be encapsulated as follows:

20 percent is dedicated to tell us how wonderful the judiciary is;

20 percent is dedicated to tell us how wonderful the Bar and its members are;

Another 20 percent is dedicated to tell us how wonderful individual members of the judicial branch are;

Eight full pages are dedicated to free advertisement of the CLE programs provided by the Bar Association.

The balance is authored by volunteers who summarize Supreme Court orders and decisions, along with summaries of Supreme Court and the US District Court orders, proposed rule changes, and housekeeping matters; and, finally, paid advertising.

A few weeks ago, I was disheartened to find what amounted to be a front-page advertisement about how wonderful the retired judges are performing the functions of arbitrators and mediators. I doubt that we will see the day that life-long volunteers like Charles Bauer, George Bruno, and Richard Uchida would ever get the same treatment from the Bar News. They simply never wore a robe, but are just as good, if not better, than any retired member of the bench. Obviously, I do not approve of this disparate treatment.

During my tenure on the NH Bar Board of Governors, I raised a simple question as to why we lawyers, who have the most contact with the judicial branch and have the opportunity to see the imperfections of the judicial branch, are always silent and never bring those imperfections to the attention of our colleagues or the judiciary itself. One of my colleagues gave the most appropriate and honest answer I have ever heard – "Sheer terror." Our judiciary has come a long way in ten years. I believe that under the leadership of Judge Broderick we have a much more open and accessible judicial branch.

Nevertheless, as human beings we are fallible and doomed to eternal imperfection. Much work has been done. Yet much work needs to be done in the best interests of justice in its true meaning.

During my eight years on the Judiciary Committee in the House of Representatives I learned one very important lesson. Just as all earthly creatures evolve through mutation, our intellectual capacity and ability only evolves through dissent, disagreement, and discussion. Without dissent and discussion, our intellectual progress will come to a halt. As lawyers, we have a responsibility to assist in the growing improvement of the judicial branch. Yet, we never seem to name names, make suggestions or criticize anything to do with our judicial branch or the Bar. There is always a better way to do things and we are responsible to make suggestions, to point out the faults and shortcomings in order to fulfill our responsibility to the people of New Hampshire and present them with as good a justice system as is humanly possible.

Thus, here is my challenge to my fellow colleagues: Write about what you observe and fear not that your dissent or criticism will be viewed negatively. Constructive criticism is a part of our responsibility. Name names. Describe processes and suggest improvements. Just as Nancy has done regarding the US Supreme Court, we can all lend a hand to the state judicial system.

I know that throughout my 19 years [as an attorney] I have acquired many judicial officers who are not exactly my fans, but I have never compromised my principles and have been willing to criticize and pay the price for it. I intend to continue in that tradition which has earned me many friends among the members of the bench and the bar. I will name names, point out the processes, cite rules and laws and make suggestions. We will see if my writings will find their way to the pages of the NH Bar News or will I have to go through another battle royal as I did 12 years ago to have a simple article published, after the Board of Governors were involved and recognized my right to free speech in a publication for which I pay and to which I am forced to subscribe.

Most sincerely yours,
Tony F. Soltani
Epsom

Editor’s note: Attorney Soltani’s 1998 letter was more than 2,400 words, well beyond the length our guidelines called for, and took up almost two Bar News pages. We have posted a PDF version of his 1998 letter. For the current version of our editorial guidelines, click here.

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