Bar News - December 15, 2006
Opinions: The Proposed Lawyers’ Assistance Program: Bad Law, Bad Policy
By: Gregory M. Sorg
Any attorney who has not yet fully succumbed to the view that it is no longer of any use to dissent from resolves of the Board of Governors (of the oligarchical state-within-a-state that the New Hampshire Bar Association is fast becoming) should register the latest proposed expansion of the Association’s mission: the establishment of a so-called Lawyers’ Assistance Program.
The most urgent objection to the Lawyers’ Assistance Program is that, to the extent it is to be supported, which of course it is, by mandatory exactions ordered by the Supreme Court, it will be unconstitutional. Article 28 of Part I of the New Hampshire Constitution states that no tax “shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature, or authority derived from that body.” [Emphasis added.] Membership in the New Hampshire Bar Association being compulsory by law in the form of Supreme Court rule, the charges imposed to support it and its programs are enforced under penalty of law, that penalty being the loss of one’s ability to make a living. Can there be any better description of a tax than that?
In In re The Proposed Public Protection Fund Rule, 142 NH 588 (1998), the Supreme Court justified mandatory assessments to support the Bar Association’s then most recent expansion of its mission by stating that “[i]n ordering the assessment from attorneys for the support of the client security fund, the Court was not imposing a tax, which is a legislative function[; r]ather, it was an act, found necessary by the Court, in aid of its own responsibility to see to the proper administration of justice.” The Supreme Court would never accept so lame a justification were it the Legislature using it to justify the exercise of a power as plainly entrusted by the Constitution to the judiciary as the power to tax is entrusted to the Legislature. Quite to the contrary, in ruling on alleged legislative forays into the its alleged core functions, the Supreme Court, in such cases as Petition of Mone, 143 NH 128 (1998), has basically used a “camel’s-nose-in-the-tent” or “slippery-slope” approach to justify invalidating them.
The Court, however, uniformly fails to apply such rigorous standards in analyzing its own forays into the core functions of the Legislature. It instead hides behind legal quibbles. One would hope there would come a time when the Court would become introspective enough to realize it had reached the point where a further such quibble would expose as a sham its pose as the impartial arbiter of the separation of powers. This point is surely reached with this effort of the Board of Governors to set up the beginnings of a system of social welfare paralleling that of the State of New Hampshire. If the assessments to be imposed to support the Lawyers’ Assistance Program were not to be adjudged to be taxes and beyond the constitutional authority of the Court to order, how far would this precedent extend? May the New Hampshire Bar Association, through Court rule, institute a parallel system of aid to families with dependent children, unemployment insurance and health insurance, and for-lawyers-only abuse and neglect and marriage and divorce codes, among who knows what else? Where does it end? At what point does representative government re-acquire importance to and deserve the notice, if not the respect, of the legal profession and the Supreme Court?
A second objection to the Lawyers’ Assistance Program is that the tax—excuse me, the “act, found necessary by the Court, in aid of its own responsibility to see to the proper administration of justice,”—to support it is about as regressive as it could possibly be. It goes beyond merely assessing all lawyers at the same rate; it assesses them the same amount. Thus, the lowest-paid lawyers in the lowest-paid specialties in the lowest-income areas of the state will pay the same amount as the highest-paid lawyers in the highest-paid specialties in the highest-income areas of the state. It is curious that a court that, through the Claremont series of decisions, has justified a massive invasion by the judiciary into the legislative realm of education policy and funding on the pretext of tax fairness is now called upon to sanction a program that would result in some of the highest-paid lawyers in this state being subsidized by some of the lowest-paid. Or, should we anticipate the generation by the Board of Governors or by the Court of a table of graduated and marginal rates of attorney income taxation—excuse me, “act[s], found necessary by the Court, in aid of its own responsibility to see to the proper administration of justice?”
Third, and finally, the Lawyers Assistance Program is premised upon an assumption that it is the responsibility of some lawyers to indemnify other lawyers from the consequences of the career and lifestyle choices they freely made. Possession of a law degree opens up a myriad of career choices. Some select careers as general practitioners in small towns, while others select careers as specialists in large towns or cities. The former often sacrifice income and financial security in preference to variety, satisfaction, free time for family and leisure and involvement in the community, and a balanced life. The latter often sacrifice these values, and with it a part of their emotional or physical health, in preference to the prospect of high incomes, a prestigious firm name, challenging cases, and important clients. The former pursue work that they love, and thereby maintain their equilibrium; some of the latter pursue work they come to hate, and they burn out.
The premise of the Lawyers’ Assistance Program—perhaps not surprisingly since the Bar Association is dominated by members of larger firms in the more urbanized southern part of the state—is that the consequences to health of the career choices of the latter should be subsidized, while the consequences to income of the career choices of the former should not be. Such a revealingly myopic, parochial view of the practice of law in this state and, in consequence, of the mission of the compulsory bar, adds to the general sense of those practitioners to the north of Plymouth that the New Hampshire Bar Association is irrelevant to them and so clearly exists for the private amusement and benefit of those practitioners to the south. They should not be compelled by those other South-of-the-Notch insiders—the members of the Supreme Court—to support it.
In closing, as a not wholly irrelevant aside, it is curious that the Supreme Court takes a highly imaginative view of the word “cherish” found in Article 83 of Part II in order to justify limiting the discretion of the legislative branch in the areas of education policy and funding, but that, in order to justify not limiting its own discretion in the area of regulation of the legal profession through the compulsory New Hampshire Bar Association, it suppresses that same imagination when it comes to the much more explicit aspirational provision of that same Article 83 that: “[f]ree and fair competition in the trades and industries is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it.” As an additional not wholly irrelevant aside, the probable—indeed the only possible—penalty for refusing to pay the annual $250 levy to support the social engineering aspirations of the Board of Governors—forfeiture of a lawyer’s ability to make a living—would seem rather to strain the proportionality of penalties requirement of Article 18 of Part I. But since the legal profession knows that the more powerful the Court is, the more powerful it is; it is unlikely that the Brethren of the Bar will allow little contradictions such as these to cause them to lose much sleep.
Attorney Gregory M. Sorg serves on the state House Judiciary Committee. Representing Grafton District 3, he lives and practices in Easton.
Editor’s Note: Frequent references in attorney Sorg’s letter to the New Hampshire Bar Association may lead to the misleading impression that the creation of Lawyers Assistance Program by Supreme Court Rule was an initiative of the NHBA. The NHBA Board of Governors has expressed support for the concept, but credit for the development of the proposal for a professionally-led LAP resides with the Court.