Bar News - May 23, 2003
Opinions - HB 175 Seeks to Cripple the Bar - Parts 1 & 2
By: Frederic K. Upton
Editorís note: Because of its length, Attorney Uptonís article was published in two parts in the Bar News. Here it is posted in its entirety including the text of both Parts 1 & 2.
IS THE LEGISLATURE engaged in a jihad against the unified Bar? Such an assumption would not be unreasonable in the light of pending legislation that would cripple the very concept of unification. The House of Representatives recently passed HB 175 in amended form and the bill has already gone over to the Senate. It would amend RSA 3:11 by inserting a new subdivision titled "State Bar Association," the principal features of which are as follows:
- It directs the Board of Governors of the New Hampshire Bar Association to hold a referendum of its members on the question: "Shall membership in the New Hampshire Bar Association be required for all attorneys licensed to practice in this state?"
- If (and only if) the membership votes in the affirmative, the Supreme Court is thereupon authorized to order (it "may" order) unification of the New Hampshire Bar.
- Approval of unification by affirmative vote of the membership is valid only for a five-year period. Presumably unification may be renewed for additional five-year lives by periodic referenda resulting in favorable votes followed by Supreme Court orders.
- While unification is in force the Association and its officers are strictly prohibited from lobbying or otherwise attempting to influence the General Court on any matters other than (a) those "which are directly related to regulation of the legal profession and improving the quality of legal services available to the people," the scope of such permissible matters to be "narrowly defined," and (b) even then may not engage in such permissible lobbying unless it has been determined that "substantial unanimity exists within the bar as a whole in agreement with the position taken on a matter."
- During unification, any member of the Bar Association "may refuse to pay" his or her portion of the Bar Association dues that are used for lobbying or influencing the Legislature even though the Associationís lobbying is lawful.
In sum, HB 175 would gut and emasculate unification as a form of organization, largely depriving it of real utility, and, of course, that is the undisguised goal of its proponents. The bill appears to be a restatement of HB 465 of the 2002 Session that passed both House and Senate but was vetoed by Governor Jeanne Shaheen as a petty and vindictive measure, motivated by a "desire for revenge." In her veto message, Gov. Shaheen also observed that HB 465 was an "unnecessary" piece of legislation, noting:
"The Bar Associationís constitution and bylaws provide a democratic process for member-directed reform, and I trust that lawyers are quite capable of protecting their own rights."
An organization required to poll its membership every five years on the quintessence of its existence would be in a constant state of turmoil, hobbled and unable to make long-range plans. The legislative activities of the unified Bar under the bill would be severely curtailed, as it could no longer take a position before the General Court on matters that are related directly to the efficient administration of the judicial system and the composition and operation of the courts. These are now permissible lobbying areas, provided the Association acts cautiously and with circumspection. (Petition of William L Chapman, 128 N. H. 24, 32 (1986)). So narrowly drawn are the permissible legislative activities of a unified bar association under the bill that it is questionable whether the Association could even provide technical assistance to legislative committees engaged in drafting legislation. The billís unkindest cut would allow any member to refuse financial support of the lobbying activities of the Association, even though such activities were lawfully conducted. Although not financially disabling to the Association, this provision further undermines the concept of unification.
Doubtful Constitutionality of House Bill
Amended HB 175 raises serious constitutional issues, and would seem to put the Legislature on a collision course with the Supreme Court. The unified New Hampshire Bar Association is a creature of the Court. The Court acted pursuant to its inherent power to regulate the practice of law.
"We hold that the determination of whether the administration of justice in New Hampshire will best be served by the compulsory enrollment of all members of the Bar of this state into one unit to which the members must pay dues necessary to its efficient operation is an integral part of the inherent power of this court to regulate the practice of law and to supervise those engaged therein in New Hampshire." In re Unification of the New Hampshire Bar, 109 N. H. 260, 64(1968).
Unification, the Court said, was not only within its essential jurisdiction, but also was a matter "which can best be considered and resolved by it." (109 N. H. at 253).
In its first (1968) decision on unification, the Court ordered the establishment of a unified bar for a trial period of three years (Justices Duncan and Grimes dissented). Three and one-half years later, satisfied that unification was serving the profession and the public interest, the Court made its unification order permanent, and this time Justice Duncan wrote the opinion for the Court. In re Unified New Hampshire Bar, 112 N. H. 204 (1972).
When unification came under attack in 1993 in Petition of Tocci, 137 N. H. 131, 135 as a claimed usurpation of legislative power, the Court referred to Part 11, Article 73-a of the New Hampshire Constitution, added by amendment in 1978, as simply confining the inherent power it already had to regulate the Bar in order to ensure that it was qualified and ethical. Unifying the state bar, the Court declared, was a reasonable method of achieving the goal of a qualified and ethical Bar.
Historically the power to regulate attorneys in this state has been shared by the Legislature and the judiciary. Such overlapping is contemplated by our remarkable separation of powers clause (Part 1, Article 37). In that situation, a functional approach for re solving conflict between the departments has been applied: they are to move in concert without improper encroachment by one branch on the function of the other. Opinion of the Justices, 113 N. H.287, 290 (1973). In his NH Bar Journal article published last year, "The Separation of Powers Principle and the Role of the Courts in New Hampshire," 42 New Hampshire Bar Journal, Number 2 (June 2001) 66, 77, NHBA Secretary Richard B. McNamara thoroughly explores these issues. (As an aside, some also see HB 175ís intrusion into the affairs of a private organization with a view to changing its basic form of government as resembling the Legislatureís attempt to change the charter of Dartmouth College, an issue dealt with in a famous US Supreme Court case Ė cf. Dartmouth College v. Woodward, 4 Wheaton 518 (1819).)
Given the facial uncertainty about the constitutionality of HB 175, the situation fairly cries out for a legislative request to the justices for an advisory opinion. However, recent erratic behavior of the House of Representatives may have foreclosed the opportunity for that branch to seek an advisory opinion. Although it has long been settled that interpretation of our constitution is a function of the judiciary and is not within the competence of the Legislature, nevertheless on March 26, 2003, the House of Representatives passed by vote of 213 to 142 HCR 14 declaring constitutionally mandated directives of the Supreme Court in the Claremont school-funding cases to be "not binding" and a nullity. A body so scornful of the Court could hardly be expected to seek its opinion.
The Senate is not similarly burdened, and is respectfully urged to apply to the Court for advice.
Unification of the New Hampshire Bar Has Been an Unqualified Success
If it Ain't Broke, Don't Fix It!
In 1986 the Supreme Court wrote that "....the history of the unified bar since its creation is one of impressive accomplishment and service to the public and lawyers of our state... ", adding the following praise:
"The Association has played a crucial role in maintaining and upgrading the quality of the bar in New Hampshire. The lawyer referral network has increased the availability of, and access to, lawyers in this State. Its public education and information efforts have been exemplary, and its continuing education program is among the best. The various committees of the Association provide substantive and procedural assistance both to the bar and to the courts. Unification of the bar may not be the sole reason for these successes, but we are confident that it has played a significant role in contributing to these accomplishments." Petition of William L. Chapman, '28 N. H. 24, 29.
The Court repeated this accolade in 1993. Petition of Tocci, 137 N. H. at 135-136.
As for the plethora and quality of services currently being offered by the unified New Hampshire Bar Association, reference should be made to the December, 2002 issue of the Bar Journal (Volume 43, Number 4), with its Member Resources and Services Guide, including the announcement of the availability of free online legal research for members. Some of the programs of the Association have received national awards.
Especially impressive have been the efforts of the Association in the areas of continuing legal education and in providing legal services to the poor. For the period from June, 2002 to May, 2003 the Association sponsored some 60 CLE programs involving about 4,600 registrations. Under the Association's Pro Bono Referral System, between November 1, 2001 and October 31, 2002, participating lawyers accepted 908 cases, ranging from domestic violence protective orders to the preservation of shelter. These are accomplishments of which the Association, its staff and members should take pride.
A voluntary Bar means a considerably smaller financial base. Lawyers will be free not to join the Bar Association, or, having joined, to withdraw from it. Experience here and elsewhere shows there would be a membership contraction, and that failure to pay dues would not be uncommon. In 1968 (the last year of the voluntary New Hampshire Bar Association) when the dues were $50, 145 members (about 20 percent of the membership) had not paid their dues by November 1968), a matter noted by the Supreme Court. In re Unification of the New Hampshire Bar, 109 N. H. 260. 264 It seems likely that under a de-unified bar the range of services and programs would be substantially contracted, especially services for the poor. The alternative would be substantially higher dues.
"There is no serious question that the wide range of 'bundled' services and resources for New Hampshire lawyers under the funding available with mandatory membership will not be afforded in a voluntary bar model with limited participation by New Hampshire lawyers". Felmly, "The Case For and Against the Unified Bar in New Hampshire", 42 New Hampshire Bar Journal, Number 2 (June 2001), 35,37.
Such dissatisfaction with the integrated New Hampshire Bar Association as exists within the profession stems primarily from its coercive nature. For some lawyers mandatory membership violates their right of association, or rather their right not to associate. They also object mightily to the payment of dues to support legislative positions of the Association with which they disagree. These views are strongly and sincerely held. Such lawyers perceive themselves as working in a "closed shop." The fact remains that every member is free to voice his or her views on any subject and in any manner, and to vigorously fight legislative positions of the Association. He or she is even welcome to use, as some have done, the pages of publications of the unified Bar Association to advocate a return to a voluntary organization.
Moreover, the unified Bar is prohibited from taking partisan positions, and its lobbying activities are closely circumscribed and subject to the exercise of circumspection and caution. Given these protections, the concerns and fears of lawyers opposing continued unification seem somewhat fanciful and overdrawn. With due deference, one is tempted to give the retort made by the late Mr. Justice Frankfurter in response to similar fears:, namely that they "...border on the chimerical". (Frankfurter concurring in Lathrop v. Donahue, 367 U. S. 820, 851 (1961)).
A more serious objection to unification of the Bar is that it weakens the Bar's independence. It is a legitimate concern that a unified Bar, controlled as it is by the Court, will tend to become subservient to the Court. That has not occurred in New Hampshire. However, lawyers need to be ever vigilant against diminution of the profession's freedom, including its freedom to make principled opposition to the Court
Vigilant lawyers will oppose HB 175.
More on Deunification
Visit Publications/Archives for: December 2002 issue of Bar Journal:
- "Member Resources Guide" describing member and public services available through the unified Bar;
- Attorney Vincent Wennersí deunification argument in: "Where We Have Been - The Case for a Voluntary and Independent Bar."
Opinions in Bar News
Unless otherwise indicated, opinions expressed in letters or commentaries published in Bar News are solely those of the authors, and do not necessarily reflect the policies of the New Hampshire Bar Association Board of Governors, the Bar News Editorial Advisory Board or the Bar Association staff.