Bar News - July 13, 2012
Morning Mail: A Response to Rep. Sorg
In the June 15, 2012, issue of NH Bar News, Rep. Gregory Sorg discusses the hearing on HB1395 that took place on May 3, 2012, in the Senate Judiciary Committee. Rep. Sorg was the prime sponsor of that bill which purported to revoke amendments to Supreme Court Rules 50 and 50A making participation in IOLTA mandatory. In his column, Rep. Sorg states that the Supreme Court asserted "a claim of limitless undefined judicial discretion to regulate lawyers under the court-invented power of ‘inherent judicial authority.’" I attended that hearing and testified on behalf of the Supreme Court for informational purposes. The Court did not take a position on the bill. In my testimony, I never mentioned "inherent judicial authority." In fact, the only person testifying on that bill who used the term "inherent judicial authority" was Rep. Sorg.
While my principal purpose in testifying was to point out to the Senators that the policy choice in question that they needed to make was whether IOLTA funds should be retained by banks or spent to meet the legal needs of New Hampshire’s low-income citizens, my testimony at the hearing on HB1395 did look historically at the court’s role in the regulation of lawyers. I did say that the Supreme Court has stated it governs the practice of law as a matter of the separation of powers in Part I, Article 37 of the NH Constitution. While I did not cite case law, this proposition is clearly stated in Petition of NH Bar Assoc., 151 NH 112, 116 (2004). To be fair to Rep. Sorg that decision does refer to the Court’s "inherent authority to regulate the practice of law." Id. Nowhere, however, in any Court opinion of which I am aware nor in any testimony I have given before a legislative committee has there been "a claim of limitless undefined judicial discretion to regulate lawyers under the court-invented power of ‘inherent judicial authority.’"
Thankfully, free speech is alive and well within the New Hampshire Bar. Rep. Sorg has every right to disagree with decisions of the Supreme Court or with what I say on behalf of the Court at the Legislature. In doing so, however, he should not mischaracterize the Court’s position. By inserting his own invective and characterizing it as an assertion of the court, he does not help the cause of civil debate of issues.
Howie Zibel, General Counsel
NH Supreme Court