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Bar Journal - Fall 2004



I am very pleased to continue the long tradition of Franklin Pierce Law Center students writing for the "Annual Survey of New Hampshire Law" issue of the New Hampshire Bar Journal. As New Hampshire’s only law school and the alma mater of more than one-third of New Hampshire’s lawyers, we feel a very strong responsibility to the state. This is one way to fulfill that duty to the state and the Bar.

You will see that the array of articles covers a wide range of topics important to practitioners. This is as it should be and is completely natural because our students have a wide range of interests.

I sincerely thank the New Hampshire Bar Association for giving Pierce Law this opportunity to meet our professional responsibility and for giving our students a forum in which to publish their thoughts.

I hope that you will find some articles that are of particular interest to you and that they will be informative and helpful in your practice. That’s the goal.


Our survey this year is again an assortment of short, pointed articles about recent cases covering a variety of practice areas: the problem of the mentally impaired client; application of discrimination law to membership associations; criminal immunity and cooperation agreements; difficulties in preserving at-will status of employees; business successor liability; calculation of child support when income fluctuates; and the nature of a workers’ compensation appeal proceeding.

Some of the most difficult and controversial matters of professional ethics involve relations with clients who appear mentally impaired. An appeal from a guardianship proceeding last year gave the New Hampshire Supreme Court a very limited opportunity to address this tricky issue. Starting from that decision, Ambre Brandis shows the inherent tension and ambiguity in both the New Hampshire Rules of Professional Conduct and the more elaborate provisions of the current A.B.A. Model Rules.

The significance of at-will employment and the best methods of preserving that status in the context of employee handbooks are not news, but the employment relationship is dynamic, not static. Standardized disclaimers are useful, but, as our court had occasion to remind us last year in a case involving New Hampshire College, they cannot prevent subsequent communications from forming a new contract. Jon Strasburger shows the connection and consistency between the new decision and prior case law and offers some suggestions for managing the inherent hazards of employee communications.

The "public accommodation" portions of New Hampshire’s discrimination law can apply to membership opportunities in many voluntary associations, as decided last year in a case involving the Franklin Elks. Alison Bethel analyzes that case, suggests the applicability of the law to other organizations, and briefly explains how it is consistent with the U.S. Supreme Court’s decisions regarding freedom of expressive association.

While New Hampshire has considerable settled law regarding plea bargains, until this year it had not specifically addressed the related problems involved in immunity and cooperation agreements. Our Supreme Court has now confirmed that such agreements need no express statutory authority and can be analyzed, at least to some extent, according to principles of contract law. Kate Morneau writes about the new case, the questions it appears to settle, and some of the open issues it does not address.

Statutory formulas have brought a great deal of stability and predictability to child support orders. However, as David Cox shows in his analysis of two recent decisions, the system that has evolved in New Hampshire doesn’t deal well with fluctuating or extraordinary income, or with the use of savings during unemployment. While there has been some piecemeal legislation effective since the article was completed, the overall problems remain.

Successor liability, whether in torts or contracts, is an important subject for lawyers in a variety of fields. As Michael Zaino observes in his article, it is also a subject where the same general legal terms are applied to implement very different policies, sometimes in contradictory ways. He writes about an apparently simple case (involving a futile attempt to impose contract liability on the purchaser of the original obligor’s assets) used by the New Hampshire Supreme Court to emphatically reject a general theory of successor liability used in other jurisdictions. One reason for this seems to be a persistent misunderstanding of N.H. law by the federal courts in personal-injury diversity cases. While the underlying dispute was about a commercial contract, the principal application of the decision will likely be in tort cases.

Last year the Supreme Court extended a series of decisions about how the Workers Compensation Appeals Board handles appeals from hearings officers. Beth Deragon’s article shows how the Court’s view of such appeals and its interpretation of "de novo" in the relevant statute is at odds with the history of the reform of the appeal process and the intentions of the drafters of the governing statute.

The students and I thank the Bar Journal staff and the volunteer attorneys who critiqued and edited articles. We also thank Professors Dickinson, Johnson, Orcutt, and Simon for their generous help with expertise on particular issues.

This issue also includes an explanation of the school’s Public Interest Fellowship program, including the experiences of three of the Fellows. As always, the issue concludes with Charles DeGrandpre’s unique and popular quarterly survey, Lex Loci.


Dean John Hutson, Franklin Pierce Law Center, Concord, New Hampshire.


Marcus Hurn, Professor, Franklin Pierce Law Center, Concord, New Hampshire.



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