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Bar News - September 5, 2003

Morning Mail: Mandating Membership, Budget Cutbacks

Editor’s note: The following letter was written to NHBA President Russell Hilliard.

I read with great interest your comments in the July issue of New Hampshire Bar News in which you consider HB 175 as "the most significant challenge facing the Bar."

Certainly there are far more important matters before the Bar than the issue of giving the members of the Association the choice as to having a unified or deunified bar. Remember, the unified bar was instituted as a result of a vote of the members in 1968, so what is the fear in having members again express their views? In New Hampshire we believe in free choice and the free enterprise system. We know that monopolies are inefficient, and a mandatory bar is a monopoly. If a voluntary professional association were required to sell the benefits of membership to practicing attorneys, I suspect the services offered would be more attuned to the needs of attorneys. A deunified bar will not be the death of the association. After all, over 20 states have deunified bars. These include Vermont, Maine, Massachusetts and New York. All have vibrant professional associations.

Yes, a deunified bar would require a greater effort and sensitivity on the part of the Bar Association to provide meaningful and beneficial services that meet the needs of the profession in order to attract members. It seems to me that this result would be in the best interests of all.

I consider the offer to conduct a referendum and certify the results to the Supreme Court two years late. Had a referendum been conducted two years ago, after the exact same bill passed the Legislature, I would not have introduced the bill, but the offer was not made and HB 175 passed the Legislature a second time.

In your comments you state that the Board of Governors will consider an appropriate response as to the constitutionality of the law. I suspect your basis for this view is the separation of powers doctrine, Article 37 of the New Hampshire Constitution. Some states may have a narrow separation of powers doctrine – New Hampshire does not. Ours is not absolute, and presents more of a challenge to the three branches to work together in harmony. I would hope that if the membership chooses deunification, the Board of Governors would take a neutral position. For the Association to challenge the vote would be a slap in the face to the members voting against unification and would be rather divisive.

Will I vote for deunification? I don’t know. Had membership been voluntary when I was admitted in 1971, I would have joined – the reason being, as an attorney with a general civil practice, the Association provided me with valued services. But what about those specialized attorneys who receive little or no benefits from membership? Is mandating membership fair and right? I think not.

Robert H. Rowe

Robert Rowe, a member of the NH House of Representatives and the House Judiciary Committee, was a sponsor of HB 175.

NHBA President Russell Hilliard responded:

Dear Bob:

  Thank you for your letter of Aug. 1, 2003, commenting on House Bill 175; we are happy to publish it in Bar News, as we welcome all points of view. Unfortunately, the Legislature does not have the same attitude, as reflected in its effort to silence the voice of the New Hampshire Bar Association in matters of interest to lawyers.

  House Bill 175, which mandates deunification of the Bar if the dictated referendum vote so chooses, is, in fact, "the most significant challenge facing the Bar," not because it seeks deunification, but because the bill represents improper legislative encroachment into another branch of government. The bill invalidates the original decision of the Supreme Court to unify the Bar, and violates the separation of powers provision in the New Hampshire Constitution, Part 1, Article 37, as well as the specific authority of the Court in Part II, Article 73-a.

The bill imposes restrictions on the Bar’s legislative activities that run afoul of the first amendment protections of the United States Constitution, as well as those found in the New Hampshire Constitution (Part I, Article 22). Moreover, requiring the Bar to conduct a referendum and dictating certain actions as a result of a particular vote represents unconstitutional meddling in the internal affairs of a private organization – an issue decided, and never overturned, by the United States Supreme Court a long time ago in the 1819 Dartmouth College case.

  If the Legislature can mandate deunification, it takes little imagination to foresee the next subject areas of intrusion: lawyer disciplinary proceedings and bar admission standards and procedure. Just as it is crucial to our democracy that the bench be independent of political influence, so too is it crucial that attorneys’ ability to zealously represent their clients not be undermined by the control or influence of the executive or legislative branches. Would an attorney who successfully challenges a legislative enactment, such as one related to education funding, feel comfortable being called before a disciplinary body composed of or chosen by legislators? The question answers itself.

  As you have probably seen from the petition posted on the Bar’s Web site, we have challenged the constitutionality of House Bill 175 on numerous grounds, and look forward to success for the good of lawyers and the public. Then, as Governor Jeanne Shaheen said in her veto message of similar legislation last year, the bench and the Bar can consider the question of unification in an independent and responsible way.

I hope the day will come soon when we can "work together in harmony" as you have suggested.

Very truly yours, 
Russell F. Hilliard

Budget Cutbacks Hurting Clients, Staff and Attorneys

Editor’s note: The following was received via e-mail from attorney Gosling in response to a request in the NHBA E-Bulletin for comments on the impact of the court budget cuts on lawyers’ practices.

Virtually all areas of my practice have been affected by the cutbacks. Delays in processing everything from motions for periodic payments to bankruptcy discharges to divorce degrees cause me to spend an inordinate amount of time on the phone apologizing to clients. Although I explain the situation with the courts to clients in my intake meeting, I find that I have to have the same conversation with each client at least twice per month or more. This glut of my time prevents me from getting client’s work done and it wears me down morally. I find I am working harder than ever to be patient, understanding and upbeat with clients. I have nothing but respect for the court personnel with whom I have worked for the past ten years and I know that the situation is not caused by the lack of effort. I find that court personnel is becoming increasingly demoralized.

If there is one area of law that, for my own practice, is most significantly impacted by the court cutbacks it is the area of marital law. In my own mind I use the word "crippled" to describe the situation in the marital courts. A few years ago I apologized to my clients that  it took eight weeks to get back the orders of notice for a new divorce filing. This week I find myself trying to justify a 16-20 week wait. Hostile cases have become more hostile. Parents with children not receiving their child support are becoming more desperate for enforcement orders. Custody disputes are routinely taking more than a year to be made stable. The children of divorcing families are most certainly paying the emotional price of dragged-out divorces. I suggest clients contact their legislative representatives when they express anger at the ineffectiveness of the marital court. Few clients take that advice, however, taking the more obvious route of expressing frustration with the legal representation they are being given. Each client believes that there must be something the lawyer can do because his or her situation must be more desperate than others’.

The court cutbacks are making it harder than ever to gain and keep the confidence of the clients. It is harder than ever to justify charging what the public believes to be fees that make lawyers rich (and we all know that they don’t). It is embarrassing to be connected as an integral part of a system that is breaking down. The courts are the primary tool of a lawyer’s work. The tool is broken. The work, which I always refer to as one of the hardest ways to make a living I could imagine, takes longer, becomes less profitable and is respected less.

Tamblyn Fuller Gosling

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.


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