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Bar News - January 16, 2009


Legal Lion Arthur Nighswander Dies at 100

By:

Arthur Nighswander

Arthur H. Nighswander, among the most revered attorneys of his generation and who practiced law in Laconia for six decades, passed away in his home at Kendal, a retirement community here, on the evening of Thursday, December 4, two months after celebrating his 100th birthday.

As a lawyer, Nighswander is remembered as a champion of civil liberties and social justice, a man who firmly believed that advocating on behalf of unpopular causes and vulnerable people is the duty of every attorney. Among attorneys, the adage "before there was the American Civil Liberties Union there was Arthur Nighswander" became commonplace and he considered his lifetime award from New Hampshire Civil Liberties Union his proudest moment.

Nighswander was one of the few lawyers to qualify for both the American College of Trial Lawyers and the American Academy of Estate Planning Attorneys, whose limited membership is based solely on merit. "He was an extraordinarily capable attorney with a lot of legal firepower," said retired New Hampshire Supreme Court Justice William Batchelder.

Nighswander was proud of his profession and throughout his career strove to uphold its integrity. Attorney David Nixon of Manchester was among those who recalled that as president of the New Hampshire Bar Association, Nighswander began and pursued its transformation from a social to a professional organization, committed to setting, applying and enforcing standards of legal proficiency and ethical conduct.

Batchelder credited Nighswander with introducing continuing legal education into the regimen of the Bar Association and said he was in the vanguard of those pressing for a unified bar, to which all attorneys must belong.

At the same time, Nixon stressed that Nighswander’s highest priority was always the public interest. "The profession was important," he said, "but for Arthur it was secondary to the best interests of the public."

Pat Wood, who as a young attorney lawyered with Nighswander in the1970s, described him and his wife Esther, who represented first Gilford and later Laconia in the New Hampshire House of Representatives, as "a team, both very civic-minded. They were both so deeply involved in the community."

"Arthur and Esther were our role models," said Leo Sanfacon of Gilford, who served on the Gilford School Board with Esther, and partnered with Nighswander in the restoration of 1 Mill Plaza, where Sanfacon practiced dentistry, and served under his chairmanship on the Gilford Planning Board. "Arthur showed me the way," Sanfacon remarked. "That you live your life for others."

Alida Millham recalled that Nighswander worked closely with the New Hampshire Music Festival, once rescuing it from the brink of failure. Nighswander, said Sanfacon, was also an avid outdoorsman who enjoyed climbing and hiking, as well as an intrepid skier, regularly tackling the most daunting slopes, including Tuckerman Ravine on Mount Washington, in the days of wooden skis and leather bindings.

Raised on Salt Pond Road in Gilford, Nighswander graduated from Laconia High School in 1925 and Dartmouth College in 1929. Three years later he received his law degree from Columbia University Law School and in 1936 hung his shingle in Laconia. Nighswander maintained his link with Columbia, where in 1948 he found his celebrated partner and kindred spirit, Hugh Bownes, who served a decade on the United States District Court.

Together Nighswander and Bownes challenged the political paranoia that swept the country and the state on the hot breath of Senator Joseph McCarthy by defending Willard Uphaus, who was jailed by Attorney General Louis Wyman for refusing to name alleged communists gathering at his World Fellowship Center in North Conway. Twice the case reached the United States Supreme Court, which ultimately upheld Uphaus’s conviction. "Arthur took a lot of heat," said attorney Peter Millham of Gilford, "but it was the right thing to do."

In 1955, as president of the Bar Association, Nighswander set a precedent by petitioning the court to suspend an attorney for misappropriating a client’s funds. Several years later he helped establish the Client Indemnity Fund, a voluntary program to provide restitution to clients wronged by their lawyers and since succeeded by the Public Protection Fund, to which all attorneys must contribute.

"If every lawyer was like Arthur Nighswander," Nixon declared, "there would be no need for the Professional Conduct Committee and Public Protection Fund."
When Nighswander was in his 90s, he remained concerned for his profession, which he feared was becoming excessively commercial. Hourly billing, which he had long contended was unfair and failed to reward performance, remained a particular sore point.

"Every hour you spend on a case is not equal," Nighswander told the Bar News, adding, "I used to charge the client what the work or the advice was worth. I never worried about my fees."

Nighswander’s legacy includes the Claremont case, which still haunts the Statehouse. Called "the grandfather of Claremont" by John Tobin, a lead attorney in the school funding litigation, Nighswander led a team of lawyers who challenged the state on behalf of 28 school districts in the 1970s.

After shuttling between the superior and supreme courts for years, the districts abandoned the suit in the 1980s when the Legislature adopted a plan to assist property-poor districts with "foundation aid." But the state never fully funded the program, sparking a second round of litigation that led to the Claremont decisions of 1994 and 1999. Batchelder, who sat on the Supreme Court when the case was argued in 1993, recalled that Nighswander, then 85, was seated in the camp of the plaintiff school districts.

In 1997, Nighswander, who had moved to Kendal and worked from an office in Lebanon, left the Laconia firm he had founded. David Bradley of Bradley Stebbins Harvey Miller & Brooks of Hanover said that shortly afterwards Nighswander, who was a contemporary of his father, called to explain his situation and ask if the firm could assist him with some probate cases. "I told him we’d be glad to help and invited him to come to the office," Bradley said. "I asked our managing partner to sit in. When he arrived, he said he really wasn’t looking for help as much as he needed a job," Bradley laughed. "He told my partner ‘David knows my background, but since you may not, I brought my resume.’ He’s 89 and brings in a resume," he said.

Nighswander worked another eight years before retiring at 97. "He just loved practicing law and did it well," said Bradley, "He added a great dimension to all of us here."

Meanwhile, Nighswander won over his neighbors at Kendal. "He had a marvelous sense of humor," said Sally Bradlee. "He wanted very much to live to 100 and at his birthday party he read a very funny poem he had written." Bradlee said that "everybody just loved him and people were happy to sit next to him."

"Only if you were on the other side," said Peter Millham, "were you not happy to see him."

Michael Kitch writes for The Laconia Daily Sun. This tribute appeared on Friday, Dec. 12 and is reprinted with permission.

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