NHBA President Richard Guerriero

By NHBA President Richard Guerriero

The New Hampshire Bar Association pays close attention to the New Hampshire Legislature. After all, we are lawyers, and the Legislature is an important source of law. We have a great interest in what laws are passed and – within our sphere – in asserting the Bar’s interests regarding specific laws.

Just as I noted the Bar’s vetting of judicial nominees last month, this month I am describing the Bar’s activities at the Legislature. As before, the idea is to keep you informed so that you can participate, provide information, object, or otherwise be involved.

First and foremost, it is important to recognize that the Bar is not free to take on just any issue at the Legislature. We cannot and do not speak for all lawyers on all issues. It would not be right for the Bar to claim to speak on all issues when membership is mandatory.  In re Chapman explained that because we are a mandatory, or “unified,” association, the Bar “should limit its activities before the General Court to those matters which are related directly to the efficient administration of the judicial system; the composition and operation of the courts; and the education, ethics, competence, integrity and regulation, as a body, of the legal profession.”

In his concurrence, Justice Souter elaborated that the Bar’s lobbying activities may address “access to the legal system and efficient vindication of substantive rights and transactional objectives,” but may not generally address “any issue of substantive law, however strongly a majority of the Association may feel about it.” Thus, the Bar interacts with the Legislature regarding the fair operation of the legal system and the role of the Bar’s attorneys in that system, but the Bar does not take positions on substantive rights.

The Bar is active at the Legislature through the Bar’s lobbyist and through the Bar’s Legislation Committee. The Bar is represented at the Legislature by the law firm of Bernstein Shur, primarily by Kathy Corey Fox. Kathy reports to me as President, to the Bar’s Executive Director, George Moore, and most importantly to the Legislation Committee chaired by Michael Iacopino.

The work that Kathy, Mike, and the Legislation Committee perform is incredibly valuable to all of us. They track every bill which might affect the practice of law. They question and provide information to individual Legislators. They attend legislative committee meetings. Then they report to the Committee which eventually reports to the Board of Governors. When appropriate, the Bar may either provide information to the Legislature on a bill or may even oppose or support a bill if it falls within the scope of Chapman as explained above. For example, a few years ago the Committee recommended support of a bill which overhauled and improved the probate process. In all of these decisions, the Chapman dictates are followed carefully and are routinely discussed before a decision is made regarding whether and how to respond to any specific bill.

In terms of keeping you informed about all of this, last year the Bar began making the summary of pending legislation available to all members online [see below]. We intend to continue that practice this year so that our members will have access to that important information. If you cannot find the information or have trouble downloading it, let us know and we will provide it to you.

There are important issues coming up at the Legislature this year. As one example, we expect legislation proposing to permit non-attorney representatives in domestic and landlord tenant cases. Just this one bill illustrates the difficult and complicated questions we often face. On the one hand, the Bar would want to ensure that all litigation is handled by qualified, licensed attorneys, for the benefit of the parties and the court system. The concern is that non-attorneys do not have the training, skill, and experience needed to represent someone in court in an important matter. On the other hand, we have a major “access to justice” problem. There are too many pro se litigants. They often have difficulty representing themselves and their struggles make the courts less effective and less efficient. So, if there are circumstances in which a non-attorney could help a litigant, without making things worse and maybe even making things better, then maybe that would be an improvement over a system with so many unrepresented parties. We don’t have an answer on this yet. It is just an example of one of the many similarly difficult issues the Bar will have to address this year.

I hope this sheds some light on what your Bar Association does at the Legislature. If you have questions or concerns about the Bar’s activities at the Legislature, please contact a member of the Legislation Committee, a member of the Board of Governors, or me.

For Legislation Program details, including NHBA’s Final Positions and Comments from March 2021, go to https://www.nhbar.org/resources/helpful-links-for-nh-attorneys/legislation-program/. For access to Legislation Watch, where you can keep an eye on legislation important to the Bar, go to http://www.ciclt.net/sn/adm/editpage.aspx?ClientCode=nhbar&Filename=login_intro.txt.