Petition of Chapman

• Decision Date: 08 May 1986
• Docket Number: No. 86-042,86-042
• Citation: 128 N.H. 24,509 A.2d 753
• Parties: , 54 USLW 2602 Petition of William L. CHAPMAN
• Court: New Hampshire Supreme Court

Page 753

509 A.2d 753

128 N.H. 24, 54 USLW 2602

Petition of William L. CHAPMAN

No. 86-042.

Supreme Court of New Hampshire.

May 8, 1986.

William L. Chapman, Concord, on brief and orally, pro se.

Upton, Sanders & Smith, Concord (Richard F. Upton on brief and orally), for the New Hampshire Bar Ass'n.

Joseph A. Millimet & a., Manchester, on brief, as intervenors in support of petitioner.

Robert J. Lynn, Concord, and Ransmeier & Spellman, Concord (Joseph S. Ransmeier & a.), as intervenors in support of petitioner.

BROCK, Justice.

The petitioner, William L. Chapman, Esq., invokes the original jurisdiction of this court, Sup.Ct.R. 11, in requesting an order directing the New Hampshire Bar Association (the Association) to comply with the terms of its constitution and with the limitations as to its legislative activities placed upon it by In re Unification of the New Hampshire Bar, 109 N.H. 260, 248 A.2d 709 (1968) and In re Unified New Hampshire Bar, 112 N.H. 204, 291 A.2d 600 (1972). The petitioner specifically requests that we enjoin the Association from continuing actively to oppose the so-called "tort reform" legislation currently pending before the General Court.

On January 9, 1986, the Board of Governors of the Association (the Board) voted to oppose several bills, collectively known as "tort reform" legislation. These bills comprise a package of provisions which is designed to change procedural and substantive tort law as it affects the rights of persons to recover for their injuries and also the attorney-client relationship generally. The petitioner requested reconsideration of that vote in a letter dated January 23, and was notified on January 30 that the Board had done so and had voted to continue opposing the legislation. He thereafter filed his petition with this court on February 5.

We consider first the Association's procedural challenges to the petition. We are of the opinion that Attorney Chapman's request for reconsideration was sufficient to exhaust his administrative remedies in that if the Board reaffirmed its position on the tort law package, it would have been unlikely to call a special meeting of the Association as a whole or to permit a referendum. A party is not required to pursue administrative remedies when to do so would likely to be useless act and result in delays that might make his or her claim moot. See R. WIEBUSCH, 5 NEW HAMPSHIRE PRACTICE, CIVIL PRACTICE AND PROCEDURE § 2083 (1984). The petitioner presented his grievance to the Board, thereby affording it an opportunity to reconsider its position, and to alter it if the Board felt compelled to do so. In addition, we find that the petitioner presented his views to the Board with sufficient specificity for us to reach the merits of his claim. See Abood v. Detroit Board of Education, 431 U.S. 209, 241, 97 S.Ct. 1782, 1802, 52 L.Ed.2d 261 (1977).

The petitioner makes two arguments in support of his position. First, he argues that the Board exceeded its authority in deciding to oppose tort revision legislation before the legislature. The Association, he asserts, is limited in its legislative activities by the provisions of its constitution and by decisions of this court. Article I of the Association's constitution states that "[t]he Association shall confine its activities before the General Court to those matters which are related directly to the administration of justice; the composition and operation of the courts; the practice of law and the legal profession." N.H. Bar Assn. Const. art. I. The petitioner claims that the Association has violated this standard in the fact of, and in the manner by which it has manifested, its opposition to the legislation at issue here.

The purposes of the Association

"are to improve the administration of justice; to foster and maintain high standards of conduct, integrity, competence and public service on the part of those engaged in the practice of law; to safeguard the proper professional interests of the members of the Bar; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform and the relations of the Bar to the public; to carry on a continuing program of legal research and education, and to encourage cordial relations among members of the Bar; all to the end that the public responsibility of the legal profession may be more effectively discharged."

Id. Article V, section 4 states:

"Between meetings of the Association the Board of Governors shall be the governing body of the Association, and shall have the power and authority to do and perform all acts and functions which the Association might itself do or perform, not inconsistent with the Rules of the Supreme Court, this Constitution and the By-laws or with any action taken by the Association."

Id. at art. V, sec. 4. The issue with which we are confronted, then, is whether the Board's decision to oppose tort reform is "inconsistent" with the powers and authority conferred upon the Association.

In In re Unification of the New Hampshire Bar, 109 N.H. at 260, 248 A.2d at 709, a divided court recognized the constitutionality of an integrated bar and ordered a trial unification period of three years. In its opinion, the majority recognized the concerns of opponents to unification that an integrated bar could take positions on legislation pending before the General Court. In response to those concerns, the court stated that "[t]he Association's brief recognizes that because of this prerogative of the unified Bar 'officers and other leaders have an obligation to be more circumspect in respect to "political" issues that are not clearly within the realm of the administration of justice.' ... [W]e are of the opinion that a unified Bar ... should confine its activities in this sphere to legislation dealing with administration of justice, the operation of the courts, the practice of law, and the legal profession....

The views expressed in those domains being those of the organization, an individual attorney is still free to voice his own views on any subject in any manner he wishes.... In addition thereto, if the activities of the unified Bar deviate substantially from the fields previously mentioned, an individual member, or a group thereof, can always seek judicial relief."

Id. at 266, 248 A.2d at 713 (citations omitted).

In this court's later decision to continue unification of the bar, over qualms expressed in the dissent of Grimes, J., a majority of the court, clearly intending to set limits on the permissible legislative activities of the Association, emphasized that, "there is no purpose to engage in purely partisan matters before the legislature, but rather to confine the activities of the association to issues related to the 'particular interests and competence' of lawyers." In re Unified New Hampshire Bar, 112 N.H. at 207, 291 A.2d at 601 (citation omitted).

In resolving the issue before us, we begin our analysis by delineating a spectrum along which the legislative activities of the Association could conceivably fall. At one end are purely partisan issues, upon which the Association qua Association may not take a position before the legislature. For example, the Association could not take an official position on a bill to repeal the so-called "anti-CWIP" law. At the other end are matters which clearly affect access of the public to the courts through the legal profession, such as proposed limitations on contingent fees, see HB 329-FN, and upon which the Association may therefore quite legitimately take a collective position. The ends of the spectrum are more easily defined than the point within it marking the limit of legitimate lobbying activity. No magic word or phrase or even discussion will fully resolve the problem presented. Words and principles are not self-limiting by their very nature. They require interpretation and application for their meaning to become clear. But an exercise of judgment will always be necessary when an individual case comes close to the more generally defined limitation.

Moreover, we note that it must be understood by the Association that a unified or integrated bar is qualitatively different from a voluntary bar. Quite obviously, the distinction between the two is that membership in the former is compulsory, whereas membership in the latter is voluntary. In effect, one is not at liberty to resign from a unified bar; by doing so, one loses the privilege to practice law.

As a result, other than resorting to whatever opportunities are available for internal dissent, the only avenue effectively open to the attorney who wishes to disassociate himself or herself from a position taken by the unified bar is to publicly express his or her personal opposition to that position. By contrast, a dissenting member of a voluntary bar association may either resign from the association or express openly his or her opposition to its position, or both, as circumstances may warrant. Thus,

"the leadership of the bar would be wise to remember that the bar is a 'unified' bar, not a voluntary bar, and that a unified bar has more limited functions and different responsibilities than a voluntary bar. Before voting for any expenditure or any project, the leaders of the bar should ask themselves whether they can justify that expenditure or project as a professional obligation of all lawyers. An expenditure or project appropriate for a voluntary association of lawyers is not necessarily appropriate for a 'unified' bar."

Report of the Committee to Review the State Bar, 112 Wis. xix, xxxix, 334 N.W.2d 544, 555 (1983) (Abrahamson, J., concurring).

It is here that the petitioner's second argument, a federal constitutional claim, becomes relevant. He asserts that, by taking a position on the tort package, the Association has violated his right to freedom of speech and what he terms his "rights of conscience" under the Federal and State...