By Tom Jarvis
On August 10, 2022, the New Hampshire Supreme Court issued an order designed to help alleviate the backlog of indigent criminal defense cases in the Granite State. The order waives mandatory continuing legal education requirements and the filing of a Trust Account Compliance form for Inactive Status attorneys who elect Limited Active Status with the New Hampshire Bar Association, making it less cumbersome to accept these cases.
Currently, there are over 900 low-income New Hampshire citizens that are entitled to court-appointed counsel but have been waiting for months for a lawyer to take their case. Due to a variety of factors such as the pandemic and its subsequent “great resignation,” the New Hampshire Public Defender’s Office has lost a lot of lawyers, causing the remaining lawyers’ already-high caseloads to increase further. As a result, several of them are unable to accept new cases without compromising their ability to provide competent and diligent representation.
The order is intended to entice inactive attorneys to accept indigent criminal defense cases without the burden of fulfilling active member requirements. The only caveat is that an attorney must take at least three such cases per year.
“Our goal is to clear the backlog and resume opening every case we are appointed to,” says Sarah Rothman, Executive Director of New Hampshire Public Defender. “But we need to be able to provide zealous advocacy to every client. We cannot allow the quality of our representation to suffer due to unmanageable caseloads, and we cannot continue to overburden our attorneys, investigators, and support staff. We have faced staggering staff attrition. And as staff leave, remaining staff is strained even further, leading to further attrition. It’s a vicious cycle that leaves indigent defendants without an attorney.”
Prior to the order, if an inactive attorney wished to accept an indigent criminal defense case or a civil pro bono case, they would not only need to switch to Limited Active Status with the NHBA, but pay higher Court fees and NHBA dues, file a Trust Account Compliance form, and take at least 720 minutes of minimum continuing legal education. The Court has now removed those barriers under this order.
Now, inactive attorneys who would like to help only need to change their membership to Limited Active Status with the Bar Association.
The words active and inactive take on a different meaning with respect to membership of a unified bar. Because membership is mandatory, the terms do not refer to a lawyer’s membership standing. Instead, they refer to the status of a member’s law practice.
An active attorney is one who is currently engaged in the practice of law in New Hampshire within the membership year. Conversely, an inactive member is one who is not, for whatever reason, practicing law in the Granite State. This could be an attorney who is retired, working in some other capacity such as a teacher or writer, or only practicing law in a different state.
Active lawyers pay higher Court fees and NHBA dues and must fulfill the aforementioned requirements each year. Inactive lawyers pay lower fees and dues and have no filing requirements. There are several different types of statuses within the active and inactive designations at the NHBA, such as Judicial Active Status (for judges), Inactive Retired, and Honorary Active/Inactive, to name a few.
Limited Active Status has historically been only for lawyers who exclusively take cases assigned from 603 Legal Aid, NH Legal Assistance, and Disability Rights Center-NH, wherein they receive no compensation (pro bono). The status was formerly called Pro Bono Active Status but was renamed a few years ago to reduce confusion with the Pro Bono Referral Program, then housed at the NHBA.
“The New Hampshire Judicial Council is aware of somewhere between 15 and 20 attorneys that have retired or are on Inactive Status, that are interested in helping out with the unrepresented indigent criminal defense cases,” NHSC Justice Patrick Donovan says. “So, we tried to fashion a method to entice attorneys who are no longer practicing to help address this severe problem we have with not having enough attorneys available to represent people who are charged with class A misdemeanors and above, and who are indigent.”
Justice Donovan continues, “We are at the point right now where in the Circuit Courts, people are being told that they need to come back and be arraigned in four months because we can’t find an attorney for them. Many attorneys in the Public Defender’s office are no longer taking cases, so this is an effort to bring those 15 to 20 – or maybe more – attorneys into the system to represent these citizens.”
Sarah Blodgett, the executive director of the New Hampshire Judicial Council, says she has had some inactive attorneys reach out to her over the past several months to say they would be willing to help, but it was too burdensome to go through the process of becoming active just to take a few cases.
“I think the order is going to be a big help,” Blodgett says. “It is a piece of a really comprehensive approach stakeholders have taken to try to address our attorney shortage. It is hopefully going to result in retired attorneys, former public defenders and prosecutors, and former defense attorneys being willing to take some cases to help us out of this crisis. Certainly, [the order] won’t resolve the crisis on its own, but it’s an important piece of our effort to get through it.”
Blodgett also mentions that another piece of their approach to get through the crisis is a recent New Hampshire Supreme Court order seeking comments on a proposal to increase the Public Defender reimbursement rate from $60 to $90 per hour, or $100 to $125 per hour for more serious felonies. She indicated that the rates have not increased since 1993.
“Private attorneys have stepped up to help during this crisis and this is an opportunity for inactive lawyers to take some cases and get back in the courtroom,” Blodgett says. “We are really hopeful that people will take advantage of this opportunity and we will be grateful for any help.”
The order also waives the requirements for Limited Active Status attorneys who volunteer for pro bono civil legal services through organizations such as 603 Legal Aid, New Hampshire Legal Assistance, and Disability Rights Center-NH. According to the order, “[t]hose attorneys are strongly encouraged to volunteer for approved civil legal services…for a minimum of 40 hours annually.”
“Anecdotal evidence indicates that a barrier to utilizing the Limited Active Status option is the requirement to maintain CLE credits,” 603 Legal Aid’s Pro Bono Program Manager Emma Sisti says. “It is probable that this rule change to remove the CLE requirements for this group of individuals will encourage lawyers who aren’t quite ready to fully stop practicing to volunteer…even one or two more volunteers using this status is important, as that is one or two more who can provide services to people in need.”
Those interested in helping by taking indigent criminal defense cases can contact Sarah Blodgett at 603-271-3592 or email@example.com. For more information about Limited Active Status, contact the NHBA’s Member Records Coordinator at firstname.lastname@example.org.