Bar News - April 18, 2003
Bills on Paralegals in Court, Litigation, Judicial Issues Advance
By: Dan Wise
SEVERAL BILLS OF concern to Bar members have crossed over to the other chamber of the Legislature at the midpoint of the session.
For the most part, judicial initiatives have shifted from center stage, while issues involving the practice of law have come under the spotlight. However, several matters of specific interest to the judiciary have been worked on: The House has approved a bill that would change the appointment process for marital masters, and another that would incorporate judges into the state retirement system. Also, the House has approved a bill that would provide state funding (through an increased court fee) for a Nashua office of New Hampshire Legal Assistance.
The following is a sampling of those bills, and their status as of press time in early April:
SB 83 - Court appearances of paralegals. Adds language to RSA 311.7 regarding appearances in court by attorneys to specifically allow paralegals to appear in court "under the direct supervision" of a NH attorney. If passed, the legislation would reword the statute to read as follows (new language in bold):
"311:7 Prohibition. No person shall be admitted commonly to practice as an attorney in court unless the person [replaces "he"] has been admitted by the court and taken the oath prescribed in RSA 311:6. Paralegals or legal assistants appearing under the direct supervision of an attorney admitted to practice in New Hampshire shall not be deemed to be commonly practicing as an attorney in court, provided that:
(a) An attorney responsible for the direct supervision of such paralegal or legal assistant shall comply with the rules of professional conduct adopted by the supreme court relating to paralegals and legal assistants and shall be familiar with the facts and legal issues with respect to any proceeding at which a paralegal or legal assistant may appear without the supervising attorney's presence.
(b) If a paralegal or legal assistant is appearing in court or in an administrative hearing without the presence of the supervising attorney, the attorney shall, by sworn statement, verify that the attorney is familiar with the facts of the matter and that, in the attorney's professional judgment, the paralegal or legal assistant is qualified to appear without the supervising attorney's presence. The attorney shall be liable for the acts of the paralegal or legal assistant performed in court without the supervising attorney's presence.
(c) A paralegal or legal assistant shall not be permitted to appear under the provisions of this section in a criminal matter or a civil commitment."
The Bar's Board of Governors did not vote to take a position for or against the bill, but it authorized its legislative representative, attorney John MacIntosh, to discuss with the Legislature a number of questions and concerns the bill raises, including the lack of a meaningful definition of "paralegal" or "legal assistant" and whether it is appropriate for the Legislature to make rules in this area. Following public hearings, the Senate Judiciary Committee did elaborate on the introduced version of the bill, adding language to emphasize that the supervising attorney must be familiar with the matters being handled in court by the paralegal and underlining that the attorney would be liable for the actions of the paralegal in court.
HB 175 - Referendum, legislative advocacy restraints on the unified bar. This bill, introduced by Rep. Robert Rowe, a member of the House Judiciary Committee and a retired district court judge, passed the House on a voice vote and is slated for consideration by the Senate. It requires that the Bar hold a membership referendum on the unified, or mandatory, membership requirement for the practice of law, and also imposes stricter limits on legislative activities by the Bar as long as it is unified. (See background article on this bill on page 5.)
SB 119 - Limit on medical malpractice actions. This bill prevents medical malpractice lawsuits based on a victim's "loss of opportunity" for a better life, reversing a recent NH Supreme Court decision that permitted them. After intense lobbying pitting plaintiffs' lawyers groups against those representing physicians and the healthcare industry, a compromise was struck that added language ensuring that victims would not be prevented from bringing a negligence action regardless of the person's chances of recovery from a medical procedure. The original bill had blocked lawsuits by patients if they had less than a 50 percent chance of survival. The compromise bill passed the Senate and is scheduled for a May 6 hearing before the House Judiciary Committee.
HB 134 - Martial masters' appointments. The bill, as introduced, imposed new restrictions on the work of marital masters and changed their method of appointment. The House-passed version, amended from the bill as introduced, no longer regulates the color of robes the marital masters wear. The bill still proposes to change the method of appointment. Currently, masters are hired on a contract basis by the judicial branch; the bill proposes that the Supreme Court nominate the masters with confirmation by the governor and Executive Council.
HB 122 - Jury nullification instructions. The House has passed an amended version of HB 122, which requires that a judge in a criminal case must "explicitly instruct the jury in accordance with RSA 519:23-b of its inherent right to disregard the law as well as the facts and to nullify."
HB 671 - Judicial Pensions. The House has passed legislation that will bring current judges into the state's contributory retirement system, providing compensating pay raises during a transition period. Judges currently are covered by a traditional, defined benefit retirement plan to which they do not contribute. Retired judges' benefits will remain unchanged if the bill becomes law. Proponents said the change will eventually save the state more than $1 million per year, but in the short run, judges will receive a pay raise of about 10 percent to offset the cost of making the transition.
Also, a bill unrelated to the legal profession, but of concern to many lawyers who are proprietors of small firms, will ease regulation of health insurance companies to allow insurers to more closely tailor the premiums they charge to the specific loss experience or risk potential of small coverage groups. Backers of the bill say it will encourage more insurance companies to offer health coverage in the state; opponents are concerned that chronically ill individuals or small groups with below-average health experience will find coverage even more expensive. The bill, SB 110, has passed the Senate and will be reviewed by the House.
NH LEGISLATION ON THE INTERNET
YOU CAN CHECK on the outcome of legislation in the New Hampshire General Court through the state's Web site.
The Legislature's homepage on Webster, the state government's Web site, at www.state.nh.us/gencourt/gencourt.html, contains up-to-date listings of bills, hearing schedules, and contact information on the legislative leadership and committees. The homepage also contains RSAs and links to the rest of state government.