Bar News - October 15, 2010
Morning Mail: Active to ďFull Time Judicial StatusĒ
The July 16th edition of the Bar News listed the names of several part-time judges whose membership status changed from active to full time judicial. While several of those named are friends of mine and fellow part-time judges, I am opposed to their change in status.
Article 11, Section 3 of the NH Bar Association Constitution provides for two classes of membership: active and inactive. "Justices, who are wholly prohibited by statute from engaging in the practice of law, shall be considered Full Time Judicial members unless they elect to become inactive members." Article VII of the Associationís Constitution provides that amendments may be made pursuant to a vote of two-thirds of the active members of the Association present and voting at any meeting. That vote is subject to the approval of the Supreme Court. These provisions appear to me to be fairly straightforward.
The only Judges who are "wholly prohibited by statute from engaging in the practice of law" are those Judges who are nominated by the Governor and confirmed by the Executive Council. While RSA 491-A: 3 & 4 provide that the [Supreme] Court "may request the Governor and Council to designate a sitting [part-time district or probate] Judge as full-time" it is clear that the Supreme Court cannot decree a full- time judicial designation. That full-time appointment and confirmation process is what prohibits a judge from wholly practicing law, not a voluntary election by a part-time judge to choose not to practice or the unilateral designation by the Court.
The genesis of the membership status change noted in the July 16 edition of the Bar News came about because the Supreme Court felt that it would be appropriate for those part-time judges who are sitting at least four days per week, and who voluntarily agree not to practice, be deemed full-time for purposes of bar membership and the reduced fees accorded full-time judges. I, like other practitioners, pay $530.00 for my bar dues and bar fees. It is my understanding that the Court formerly paid the bar dues of the full-time judges and then discontinued that practice because of the budgetary issues. Many full-time judges then elected inactive bar membership status in order to pay reduced annual dues. While I disagree with this collateral issue that full-time judges should be allowed to elect inactive status, I object to the unilateral designation by the Supreme Court in by-passing the definition of full-time judges which is set forth in the Bar Associationís Constitution and the amendment process, which requires a vote of the membership, to change any provisions in that Constitution.
When I asked the Executive Director of the Bar Association why the Association acquiesced in this change, I was informed that the Administrative Office of the Court (AOC) provides a list of the full-time judges to the Bar Association and the Bar Association accepts that list without question. That process may have worked when the list contained only the names of nominated and confirmed full-time judges. Now, the Bar Association is accepting, apparently without question, the names of part-time judges who are working four days a week in the judicial system and who have agreed to give up their law practices.
Neither the Supreme Court nor the Bar Association can unilaterally change the Bar Associationís Constitution. There is a process to amend the constitution, including the definition of full-time judges, which has not been followed. I believe that it is poor practice on the part of the Court and the Bar Association to designate part-time judges as full-time merely because they elect to voluntarily give up their practice and to concentrate on judging. I believe that the plain meaning of our Bar Constitutionís definition of full-time judges and its amendment process involving the vote of the bar membership should be followed literally.
Don Goodnow, the AOC Executive Director, wrote to many of the part-time judges on August 3, 2009. The Court had discontinued paying the bar dues of full-time judges. Those part-time judges who were essentially working full-time in the Court and who discontinued their law practices were paying more than the full-time judges. The Court was concerned with this perceived inequity. Some of the part-timers choose inactive status.
Whether one agrees or disagrees that full-time judges should be permitted to elect inactive status (I believe that they should not be allowed to elect inactive status) the more significant issue is the failure to follow the process outlined in the Barís Constitution to amend the definition of full-time judges to include part-timers who work four days a week judging and who have voluntarily elected to discontinue their practices.
This should not be a unilateral decision of the Court or of the Bar Association. Both are at fault in allowing the "hybrid" classification of part-time judges who work 4 days a week and who give up their practice to be designated as full-time judges for their membership status.
My request is that both the Board of Governors and the Court address these issues. I would also like to see a constitutional change which provided that all full-time judges, part-time judges who are practicing law and judging (such as myself) and those part-timers who are working 4-5 days per week judging and who have effectively discontinued their practices, be considered active members and pay full bar dues. All of those lawyers benefit from their bar membership and all earn their livings from the law in New Hampshire, whether one is practicing the law or whether one is a judge. The judiciary has long enjoyed a cooperative relationship with the Bar Association and benefits from its advocacy of many issues which assists the judicial branch in the myriad of issues faced by it Ė witness the current Court crisis and Bar Associationís supportive role in opposing the significant budgetary cuts and the resulting curtailment of services to citizens.
I advocate reserving the inactive membership classification solely for those who are retired from practicing or judging or those who may have a long term military commitment, medical issue or other reason which prevents them practicing or judging for a significant period of time. Full-time judges who are confirmed by the Executive Council, part-time judges who are sitting 4-5 days a week and those who are practitioners and part-time judges are probably at the higher end of the salary spectrum in the State. There is no financial reason for those people to receive a break on their bar dues; and we have an unambiguously worded Bar Constitution which should be followed.
Albert J. Cirone
NHBA Responds: Attorney Cirone is correct in pointing out that the Association misapplied "Full Time Judicial" NHBA membership status to several judges who, although serving essentially full-time on the bench and no longer practicing law, did not meet the "wholly prohibited by statute from engaging in the practice of law" standard in the NHBA Constitution. The Supreme Court has indicated to the Association leadership that it will work with the NHBA on an equitable solution to the issues raised and suggestions offered in Attorney Cironeís letter.