Piper v. Supreme Court of New Hampshire, C82-135-L.

Decision Date17 May 1982
Docket NumberNo. C82-135-L.,C82-135-L.
Citation539 F. Supp. 1064
PartiesKathryn PIPER v. SUPREME COURT OF NEW HAMPSHIRE.
CourtU.S. District Court — District of New Hampshire

H. Jon Meyer, Manchester, N. H., for plaintiff.

Martha V. Gordon, Asst. Atty. Gen., Concord, N. H., for defendant.

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

LOUGHLIN, District Judge.

The court has the following motions before it. Defendant's motion to dismiss, Supreme Court's motion to dismiss, plaintiff's motion for summary judgment and the plaintiff's motion for preliminary injunction which at the time of the hearing on May 6, 1982 is unfortunately moot. It has been agreed that the court can rule on one motion which is dispositive of all, that will be plaintiff's motion for summary judgment.

Plaintiff Kathryn A. Piper is a resident of Lower Waterford, Vermont, less than 400 yards from the New Hampshire border, and is admitted to practice before the State Bar of Vermont and the United States District Court for the District of Vermont. Upon application to the New Hampshire Board of Bar Examiners for permission to sit for the February, 1980 New Hampshire Bar Examination, the Board found her to be of good moral character and to possess suitable qualifications, and accordingly granted her permission. She took the February 27-28, 1980 Bar Examination and on April 18, 1980 was advised that she had received a passing score and would be recommended by the Board of Bar Examiners for admission to the New Hampshire Bar. At the time of taking the examination, she filed a good faith statement of intent to reside in New Hampshire. She was informed by the Board of Bar Examiners that she must establish a home residence in New Hampshire in order to be admitted to the bar. She filed a request for an exception to the residency requirement which was denied by the supreme court. She then filed a formal petition to the supreme court to grant her an exception which was also denied. In consequence of defendants' action, plaintiff has been unable to practice law in New Hampshire and now faces the threat that she will be required to retake the bar exam pursuant to Supreme Court Rule 42(8) requiring that applicants be admitted within two years of being notified of successful passage of the exam.

On July 25, 1979 plaintiff wrote to George Pappagianis, then Clerk of the New Hampshire Supreme Court, now a justice of the New Hampshire Superior Court. Part of the contents of the letter are as follows:

Due to the innumerable conflict of interest problems that would arise should I enter the private practice of law in the same town as my husband, I have decided that I would like to seek employment in New Hampshire upon termination of my clerkship with the Second Circuit this fall.
My main concern, of course, is satisfaction of the residency requirement. Moving to New Hampshire between now and February would present a considerable hardship for my husband and myself due to the tight mortgage market and due to the fact that we are expecting a child in the middle of March.

Succinctly, the issue in the case is whether the plaintiff who has successfully passed the New Hampshire Bar examination can be excluded from practicing in New Hampshire because she is a non-resident.

Rule 42 of the New Hampshire Supreme Court is entitled Admission to the Bar; Committee on Character and Fitness.

The court has culled from Rule 42 those sections which are apposite to the facts of this case.

42(3)

Any person domiciled in the United States and who either is a resident of the State of New Hampshire or filed a statement of intention to reside in the State of New Hampshire shall be eligible to apply for examination provided he is possessed of the qualifications hereinafter provided. 42(7)(a), (b)
Each person seeking to practice law in New Hampshire, who has taken and passed the bar examination is required to attend a practical skills course to be presented annually by the New Hampshire Bar Association. The course will assist new lawyers in developing basic lawyering skills and practical knowledge. Attendance is required and each new admittee will be required to execute an affidavit stating that he or she has attended each session of the course unless otherwise excused by the supreme court. A special committee of the New Hampshire Bar Association Continuing Legal Education Committee will administer the practical skills course but no test will be required. Each new admittee will be licensed to practice law subject to the condition that he or she completes the practical skills course within one year of the date of admission to the bar (unless in exceptional instances a longer period is approved in writing by the New Hampshire Supreme Court) or his or her license to practice shall be revoked.
(b) A new admittee's license to practice shall not be so revoked if, within one year after being admitted to the bar and before completing the practical skills course, he or she leaves New Hampshire intending later to return to practice in this state and promptly so notifies the Court in writing; provided however he or she returns to New Hampshire to practice law within three years of admission, notifies the Court immediately of his or her return and attends the first available practical skills course. Failure to comply with the foregoing conditions will result in automatic revocation of the license to practice. Readmission will require reexamination.

In plaintiff's motion for preliminary injunction, she raised the issue that under Rule 42 she would be required to retake and pass for the second time the New Hampshire Bar Examination if not admitted by April 18, 1982.

The court has for its edification various affidavits filed by the parties.

Ralph H. Wood, Clerk of the New Hampshire Supreme Court, filed an affidavit stating that in order for a successful applicant to be admitted to the New Hampshire Bar she or he must establish residency in New Hampshire. The applicant by written oath must state his or her New Hampshire address. When plaintiff signed the Petition and Questionnaire for Admission to the New Hampshire Bar she stated under oath that she intended to become a resident of Littleton, New Hampshire.

Chief Justice John W. King of the New Hampshire Supreme Court filed an affidavit stating.

As consistently interpreted by the New Hampshire Supreme Court, RSA Ch. 311 and Supreme Court Rule 42 require that an applicant for admission to the New Hampshire Bar be a bona fide resident of the State of New Hampshire at the time that the oath of office set forth in RSA 311:6 is administered. The oath of office includes the fact that the attorney will be an officer of the court and must support the Constitution of this State. RSA 311:6. Nonresidents could hardly be expected to carry out these solemn duties. As interpreted by the New Hampshire Supreme Court, the residency requirement involves more than mere physical presence in the State of New Hampshire at the time of admission. "Residency," for purposes of admission to the Bar, contemplates that an applicant intends that the State of New Hampshire will be his or her "principal place of physical presence for the indefinite future to the exclusion of all others." Cf. RSA 21:6 The requirement of actual residency at the time of admission to the New Hampshire Bar promotes the State of New Hampshire's interest in ensuring that attorneys admitted to practice will become, and remain, familiar with local rules and practices. Attorneys who have indicated, under oath, that they intend to reside in New Hampshire for the indefinite future are clearly more likely to become familiar with the laws and rules of the State of New Hampshire. That the State of New Hampshire demands such familiarity with local practice and procedure, above and beyond the knowledge of substantive law required for the bar examination, from attorneys admitted to the New Hampshire Bar is reflected in the New Hampshire Supreme Court's rule requiring all new admittees to complete a practical skills course within one year of admission. See Supreme Court Rule 42(7).
The residency requirement also ensures, to the extent possible, that attorneys admitted to practice in the State of New Hampshire maintain high standards of ethics, as well as competency, as residency within the State reinforces a practicing attorney's interest in his or her reputation as a lawyer in the legal community.
The residency requirement facilitates the State's interest in ensuring that all attorneys are readily available for court proceedings and easily subject to disciplinary action by the New Hampshire Supreme Court.
The residency requirement promotes the continued vitality of a competent, stable and well informed State Bar. The New Hampshire Bar is an integrated bar which depends heavily on the active participation of all of its members in its efforts to improve the quality and extent of legal services offered within the State of New Hampshire. In the absence of a residency requirement, the burden of providing those voluntary services currently provided by members of the New Hampshire Bar in such areas as participation in bar association committees; presentation of continuing legal education programs; participation in significant pro bono cases on a volunteer basis; and participation in community programs designed to afford information to the public about the services offered by the New Hampshire Bar; would fall disproportionately on those members of the Bar who happen to reside within the State. Similarly, the burden of handling court-appointed cases, such as those required under the indigent defense program, would, as a practical matter, fall on resident members of the New Hampshire Bar.
Apart from the residency requirement itself, applicable to all applicants for admission, the New Hampshire Supreme Court imposes no other requirements upon residents of other states who seek admission to the New Hampshire Bar. The qualifications required
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