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Bar News - September 20, 2017

Opinion: Government Lawyering in NH Needs Attention


Editor’s note: A version of this article first appeared in the July 21, 2017, issue of the New Hampshire Business Review.

There is evidence of a crisis in government lawyering in this state and it is happening at every level of government in the midst of an opioid epidemic, with news of shootings throughout New Hampshire becoming a daily reality, and with serious problems related to child abuse and investigative capacity at DCYF.

Consider that it has been weeks since we were branded a “drug-infested den.” The federal District of New Hampshire still has no nominated and appointed US Attorney to lead federal law enforcement efforts in our state, including with regard to opioids, addiction, and public safety.

Meanwhile, the New Hampshire Attorney General’s Office has contracted out core investigative functions involving consumer protection in the opioid crisis, outsourcing to private, out-of-state attorneys the traditional law enforcement functions of an office whose cause is and has to be the pursuit of justice under our laws.

And three elected county attorneys, who are responsible for public safety in New Hampshire, including two presiding over the largest counties in the state (Rockingham and Hillsborough) have been the subject of intense public criticism recently regarding their management and judgment.

One among them, the county attorney in Carroll County, surrendered management of his office for extensive periods of time after reports of incompetence in matters involving sexual assault.

Rockingham County saw a top prosecutor in its county attorney office removed from office for months amid a public corruption investigation. His elected replacement was then sued for taking office and, on her first day, firing another experienced prosecutor who blew the whistle on underlying misconduct.

Indeed, just this summer, the Manchester city solicitor and at least one senior attorney resigned amid reports that the office had not trained attorneys to handle the large volume of domestic violence cases in our state’s largest city. Reports regarding these events led to questions about the conduct of the Hillsborough County Attorney.

The resignation of one longtime top prosecutor, Michael Valentine, who served in the Hillsborough County Attorney’s Office for more than a decade, also sounded alarm bells. His assessment, according to his heartfelt resignation letter, was that the system asks government attorneys to enforce laws to protect us from violent crime while cutting off resources to do so effectively.

The implications of an ailing corp of public sector lawyers extends further and involves the protection of laws fundamental to the safe and healthy functioning of our democracy.

It was government lawyers who recently decided to settle with the New Hampshire chapter of the American Civil Liberties Union regarding how to balance the public’s interest in responding to a lawsuit filed by senior legislators of both parties. That suit challenged the Secretary of State’s decision to disclose voter data to a White House under investigation for colluding with Russians. It will be government lawyers who defend (or decide not to defend, as they see fit) the new, unnecessary and unjustified legal consequences for voting in this state that are the result of new statute challenged in another NHCLU lawsuit filed this month seeking to protect our voting rights.

We cannot be content, as a state, with the state of things as they now stand with government lawyers, given the importance of the issues our government lawyers must face in the course of carrying out their responsibilities.

We need a fully functioning core of government lawyers to make tough decisions in very tough circumstances, with no perfect or perfectly right answers.

Care at the very highest levels of our state’s government must be taken to monitor the qualifications, abilities, resources, and coordination of these government lawyers to ensure that they have the resources and ability to do their jobs and protect our legal rights.

Policymakers should set aside their ideological commitments and seek to understand who populates these positions of public responsibility, how they work together within our system, and whether the current configurations make sense in modern times.

Our legislature has a deep tradition of studying many subjects that are fundamental to our health, safety and welfare. It may be time for our leaders to convene a commission on the subject to report back to us regarding the performance of these public officials and to make recommendations regarding steps we can take to obtain greater returns to the public.

If our leaders fail to take a thoughtful approach and instead scapegoat, the ranks of top public sector lawyers will thin, and superficial negative publicity that fails to address systemic problems will render these jobs more and more unattractive to talented and conscientious lawyers.

We might be a state that treasures small government, but we should not be a state that tolerates or abets ineffective government, whatever the cause, when fundamental rights and legal interests surrounding our public safety, well-being, and status as voters are at stake.

Michael Lewis

Michael S. Lewis is an attorney at the law firm of Rath, Young and Pignatelli in Concord, NH.

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