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Bar News - October 19, 2016

Supreme Court Commission Studies NH Bar Association

Gordon MacDonald

The NH Supreme Court in July issued an order that established the Commission on the New Hampshire Bar in the 21st Century “to evaluate current structure, services, initiatives and challenges” of the NH Bar Association and to report on its findings by Jan. 17, 2017. Gordon MacDonald, a partner at Nixon Peabody and chair of the NH Board of Bar Examiners, was appointed chair of the commission.

Bar News posed some questions about the purpose and process of the commission’s work, and here are the answers MacDonald submitted by email. Bar News invites additional comment and questions from readers, which can be sent to

BN: Why do you think the court set up this commission at this point in time? Are there any particular benefits to undertaking this work this year?

GM: In my experience, this Court has been very proactive and forward-looking. The establishment of this Commission simply continues that pattern. Our world is rapidly changing, and our profession is changing with it. The Commission is an opportunity to consider how the Bar Association can best serve the public and the profession in a dynamic environment.

BN: Did you have a conversation with the justices about the commission? Are there any areas in particular that they are interested in knowing more about?

GM: Justice Broderick [a member of the commission] and I had a conversation with Chief Justice Dalianis shortly before the Supreme Court issued its order establishing the Commission. We discussed the objectives of the Commission as set forth in the order and, in particular, that the Commission’s work was to be a collaborative undertaking with the Bar Association. We also discussed that a core premise of the Commission’s work was that New Hampshire’s long tradition of a unified bar was to continue.

BN: In evaluating whether the association is efficiently serving its members, the public and the administration of justice, what metrics will the commission be using?

GM: An important part of our process is to determine appropriate, useful and fair benchmarks. We have not identified those yet. As with the other issues facing the Commission, we certainly welcome feedback on this.

BN: To what degree is this an exploration of the mission of the NH Bar Association versus how it is accomplishing the mission that it has?

GM: In establishing the commission, the Supreme Court stated it “is interested in ensuring efficient delivery of services to the members of the association and in making certain that the Bar Association is assisting and serving the public and the administration of justice.” The Supreme Court’s order suggests that it wants our bar to be the best unified bar in the country.

BN: Can you explain the process the commission plans to use to conduct its work?

GM: The commission’s process will be informed by two important principles. First, the Supreme Court made clear in its order that the commission is “to work in collaboration with the Bar Association.” Second, the commission is committed to receiving as much information from as many perspectives as possible.

The commission has received excellent support from the Bar Association. [NHBA Executive Director] Jeannine McCoy immediately reached out to me and has timely responded to our requests for information. Justice Broderick and I met with the Board of Governors in August. The full commission has met with both Jeannine and Paula Lewis, the association’s director of finance and IT. We have all benefited from less formal conversations with Bar leadership.

BN: Are there particular sub-groups being formed to explore particular aspects? Will you be soliciting input from members of the bar in general? If so, how?

GM: The commission has divided into four committees: Budget, chaired by Justice Broderick; Governance and Services, chaired by Heather Krans; Comparable Organizations, chaired by John Curran, and the Profession in the 21st Century, chaired by Dan Will. For the next several weeks, these committees will be at work. We will then come back together as a full group to begin to synthesize the committees’ work and to seek further input from the Bar, its members and the public.

We will be looking for opportunities to solicit information and perspectives from Bar members, including public forums. I encourage any Bar member who has information to offer to reach out directly to me or any of the committee chairs. In addition, the commission has established an email address for comments, We encourage any comments.

The commission has a deadline of Jan. 17, 2017, to submit our report to the Supreme Court.

BN: Will the commission meetings be open to the public? Why or why not?

GM: The commission is a unique and important opportunity for any interested New Hampshire citizen – lawyers, judges and members of the public – to come forward and express their opinions on the Bar Association’s structure, its initiatives, its delivery of services and how it can best serve the profession and the public in the 21st Century. The Commission is open for business, and welcomes all views.

I anticipate the commission as a whole, and perhaps through its committees, will seek to hold public forums to gather information, seek input and perspectives. However, the commission has discussed that as it considers what it has learned and deliberates on its findings and conclusions, it may do so in a non-public setting.

BN: What role do you envision the NHBA staff and Board of Governors will play in this effort?

GM: The bar association staff and Board of Governors have already been very helpful to the commission. I expect that we will continue this collaboration in the months ahead.

BN: Have you learned anything about the NH Bar Association in the early stages of this work that has surprised you?

GM: I have learned that, even as a longtime member, there is much I did not know about the Bar Association and its activities.

BN: What do you personally view as the most important function of the NHBA?

GM: Our profession serves a vital role in our democracy and free enterprise system, both of which are founded on the rule of law. The Bar Association’s highest function is to do what it best and realistically can do to serve our profession and the public we all serve.

BN: As chair of the Board of Bar Examiners, do you have particular concerns about trends in the legal profession that will inform your work?

GM: There are important trends in legal education and bar admissions that will inevitably impact the Bar Association. The number of law school applicants has dropped significantly over the last several years and, while the downward trend appears to have stabilized, there is no immediate sign that this it will reverse and head up in any material way. The profile of law students, at least as measured by LSAT scores, has also changed. It may be that a career in our profession is not as attractive to the best and brightest as it used to be.

The July 2016 New Hampshire Bar Exam was administered to 25 percent fewer applicants, year over year. It is too early to say whether that is a trend or not. The advent of the Uniform Bar Examination, now administered in New Hampshire and about 20 other jurisdictions, adds an additional dynamic. UBE scores are fully portable. These developments may portend a drop in Bar Association membership and/or an increase in out-of-state members. What is certain is that this a very dynamic environment requiring creative and flexible forward thinking and planning.

BN: Why isn’t the commission considering whether or not the NH Bar Association should be a unified (mandatory) bar association?

GM: The Supreme Court was clear that the Commission was to consider how New Hampshire can be “a model of how a unified bar can best serve the profession and the public in the twenty-first century.”

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