New Law Could Make New Hampshire Bar Voluntary

The bill headed for Governor Craig Benson’s desk has many of the features of union-busting legislation passed by the so-called “right-to-work” states.

In union parlance, the New Hampshire bar is a “closed shop.” The head of the bar is the state Supreme Court. A lawyer who wants to practice in this state must join the bar association and pay dues of $250-dollars a year. Lawyers must pay additional fees and contribute time and money for such things as providing legal services for the poor.

Bar officials reckon that perhaps 20 per cent of its members could drop out if membership became voluntary.

The Legislature voted for final passage of the bill on Tuesday. If it’s signed, a referendum must be held among the state’s 5-thousand or so lawyers on whether to preserve mandatory membership.

That referendum would be conducted every five years.

Concord lawyer Russell Hilliard is the bar’s president-elect. In effect he says that the system isn’t broken, so why fix it?

Hilliard believes the answer lies in the tension between the Legislature and the judiciary over the independent authority of the state Supreme Court.
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This bill did not arise because there was some great clamoring or movement among lawyers to seek de-unification of the bar. I see it as precisely that, a continuation of the Legislature’s attack on the judiciary, more so than the bar, for that matter, and continuing to challenge the judicial authority and, to put it plainly, in my view, to pick a fight that’s unnecessary and unwise.

The bill’s sponsor is Representative Robert Rowe, an Amherst Republican and retired lawyer.

Rowe argues that the practice of law in New Hampshire has changed since 1968, when the state established the unified bar. For the past 10 years, Rowe says, many individual lawyers have complained:
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I’m mandated to belong to this association but I get nothing out of it. That was the reason we brought the bill. Any one, any lawyer, should have a choice as to their professional or trade association.

Lawyer Hilliard says directly that one option before the bar is considering going to court. He believes the measure would violate constitutional guarantees of free speech and assembly.
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It violates the contract clause of the Constitution to compel a private organization to change its charter, to do something in a different way. And then the final and most significant one is that for more than 30 years this bar has been unified under an order from the state Supreme Court, and under part 2, article 73-a of the state constitution, that rule has the force and effect of law.

There’s the separation of powers argument that emerges regularly in New Hampshire.

Representative Rowe says that the court system has made significant reforms already. He suggests that the court can make another one and reduce the political tug-o-war between the legislators and the judges.

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If we have crossed over the threshold by ordering the Supreme Court to accept the decision of the bar association, they can say no, it’s unconstitutional. But they can also take that decision and say yes, we believe that it’s unconstitutional but in the spirit of working with other branches of government and the attorneys in the state, we will not decide it on constitutional grounds.

This bill passed in the last legislative session but Governor Jeanne Shaheen vetoed it. Now the governor is Craig Benson, and his legal counsel, Chris Reed, once was a backer of the bill.

For NHPR News, I’m John Milne.