Unification of New Hampshire Bar, In re

• Decision Date: 31 December 1968
• Docket Number: No. 5854,5854
• Citation: 109 N.H. 260,248 A.2d 709
• Court: New Hampshire Supreme Court
• Parties: In re UNIFICATION OF the NEW HAMPSHIRE BAR.

Page 709

248 A.2d 709

109 N.H. 260

In re UNIFICATION OF the NEW HAMPSHIRE BAR.

No. 5854.

Supreme Court of New Hampshire.

Argued Nov. 20, 1968.

Decided Dec. 31, 1968.

SYLLABUS BY THE COURT

1. A unified or integrated Bar is a Bar organization in which membership and payment of dues is required as a condition of practicing law in a state.

2. Where a Bar is unified or integrated all who have been or are thereafter admitted to practice as an attorney in such state become members of the State Bar Association subject to its constitution and by-laws, including the payment of dues, and entitled to the benefits derived from the Association.

3. The unification of the Bar is within the jurisdiction of the Supreme Court and is a matter which can best be considered and resolved by it, hence, the fact that legislation providing for unification of the Bar was introduced but indefinitely postponed was not considered of particular importance.

4. The determination of whether the administration of Justice will best be served by the compulsory enrollment of all members of the Bar into one unit to which the members must pay dues necessary to its efficient operation is an integral part of the inherent power of the Supreme Court to regulate the practice of law and to supervise those engaged therein.

5. A supreme court may constitutionally decree the creation of a unified Bar and require that the costs of improving the profession be shared by the lawyers admitted to practice in such state when it is found that the quality of professional services of lawyers and the administration of Justice is thereby enhanced.

6. The fact that a unified Bar may take a particular position and publicly express its views on pending legislation does not preclude an individual attorney from freely voicing his own views in such matters whether or not consistent therewith.

7. Where activities of a unified Bar deviate substantially from the fields dealing with the administration of Justice, the operation of the courts, the practice of law and the legal profession, judicial relief may be sought by an individual member or a group thereof.

8. A unified Bar does not constitute coercion violative of an individual member's right to associate or not to associate nor does it constitute enforced professional guildism.

Petition by the New Hampshire Bar Association, a voluntary state-wide organization of the members of the Bar of New Hampshire, praying that this court find 'that unification of the New Hampshire Bar would be in the best interests of the people of New Hampshire' and that this court, after a full hearing, 'establish a unified New Hampshire Bar, upon such terms and conditions as the Court may prescribe, subject only to approval of the Constitution and By-Laws for such organizataion by the members of the New Hampshire Bar.'

Filed with the petition were a proposed Constitution and By-Laws to be submitted for the approval of the members of the New Hampshire Bar at the 1969 Mid-Winter Meeting of the New Hampshire Association on February 1, 1969.

LAMPRON, Justice.

The petition states that the New Hampshire Bar Association now provides, and for many years heretofore has provided, for the assistance of this court, as the general superintending authority over the Bar of this State, services of a quasi-public nature. They include, among others, continuing legal education of the Bar; maintenance of the Bar's ethical standards; protection of the public against unauthorized practice of law by unqualified persons; provision of legal research, services and public discussion in matters of concern to the administration of justice.

It is further alleged that 'the increasing urbanization of this State, the increasing complexity of the practice of law, and the increasing size of the Bar all magnify the importance of rendering these quasi-public services, but diminish the ability of your Petitioner's doing so effectively as a voluntary association, and have raised the cost of doing so to a point where financial support of the entire Bar is necessary if the programs are to reach all members of the Bar.'

Allegation is also made that unification or integration of the Bar is for the purpose and has the effect, of enabling 'the unified association to more effectively serve the Court, the Bar, and the public, by reinforcing programs by more widespread participation by the Bar, and by providing financial support for the necessary activities enumerated' hereinabove.

The petition also states that after an authorized study a special committee of the New Hampshire Bar Association recommended that the Association 'become a unified, as opposed to a voluntary, bar association.' Due notice, of a meeting to be held April 6, 1968 to act on the committee's report and recommendation, was given to all persons known or believed to be attorneys practicing in this State, whether members of the New Hampshire Bar Association or not. At this meeting, non-members of the Association were eligible and entitled to vote on the question of unification of the bar along with members. The committee recommendation was adopted by a vote of 72 to 34.

However, the adopting resolution provided that it was to 'take effect if a majority of those balloting in a referendum of the members of the New Hampshire Bar as far as is known shall vote in favor of unification of the New Hampshire Bar.' Such a referendum, taken by written ballot requiring the signature of each voter, resulted in a vote of 231 for and 188 against unification. The present petition was thereafter filed with this court which issued the following order on September 27, 1968: 'Petitioner's brief to be filed by October 19, 1968. Any member of the New Hampshire Bar, whether or not a member of the Bar Association may file a written memorandum by November 9, 1968; hearing November 20, 1968 at 10 A.M.'

The Association itself established a procedure to be followed in connection with the presentation of the petition for unification. It included (1) mailing copies of the petition and copies of the proposed constitution and by-laws to all members of the New Hampshire Bar and Bar Association concurrently with its filing in this court, and (2) making copies of its brief available without cost to all members of the New Hampshire Bar on request.

Many members of the Bar of this State presented briefs, written memoranda, and oral arguments for and against the granting of the petition and some were also directed at certain provisions of the proposed Constitution and By-Laws.

A unified bar, also called an integrated bar, is a bar organization in which membership and payment of dues is required as a condition of practicing law in a State. Lathrop v. Donohue, 10 Wis.2d 230, 237, 102 N.W.2d 404; Id., 367 U.S. 820, 827, 828, 81 S.Ct. 1826, 6 L.Ed.2d 1191; 50 Mass.L.Q. 247. When such a bar is established all persons who have been or are thereafter admitted to practice as an attorney in that State become members of the state bar association subject to its constitution and by-laws, including the requirement to pay dues, and entitled to all the benefits to be derived from such an organization. The 'Proposed 1969 Revision Of The Constitution of The New Hampshire Bar Association' filed with the petition so provides.

In the 29 States and 2 territories now having such bars, unification was accomplished either entirely by the legislature (N.D.Laws 1921, C. 25; Ala.Laws 1923, No. 133); or entirely by court order (Petition of Florida State Bar Ass'n, 40 So.2d 902 (Fla.1949); In re State Bar of Georgia, 219 Ga. 873 (1964); or by a combination of legislative and judicial action. Wis.Rev.Stat. s. 256.31; In Re Integration of the Bar, 273 Wis. 281, 77 N.W.2d 602 (1955); Id., 5 Wis.2d 618, 93 N.W.2d 601 (1958).

House Bill No. 458 providing for the unification of the Bar of this State was introduced in our Legislature in 1961. It received a first and second reading (1961 House Journal 592) but was indefinitely postponed in accordance with a resolution that all bills pending at the close of the session would be so disposed of. Id., 1189. However, this court being of the opinion, as will hereinafter appear, that unification of the bar of this State is a matter which is within its jurisdiction and which can best be considered and resolved by it, the above negative and inconclusive action in the Legislature should not be regarded as of particular significance. See Dean v. Smith, 106 N.H. 314, 317, 211 A.2d 410; Briere v. Briere, 107 N.H. 432, 434, 224 A.2d 588.

The Legislature by specific legislation has granted to this court authority over the admission of a person to practice law as an attorney as well as the power to supervise, control and discipline those so admitted. RSA Ch. 311. However, this court held in Ricker's Petition, 66 N.H. 207, 211, 29 A. 559, 561, 24 L.R.A. 740, that the 'authority to make reasonable rules for the admission and removal of members of the bar 'is necessarily inherent in every court, in order to enable it to discharge its duties,-as much so as the power to preserve order'.' It was also stated in that opinion by Doe, C.J.: 'The constitution * * * vests in the courts all the judicial power of the state. The constitutional establishment of such courts appears to carry with it the power to establish a bar to practice in them.' Id., p. 210, 29 A. p. 560. This would be the prerogative of this Court as RSA 490:4 vests in it the general superintendence of all our courts. To the same effect are Bryant's Case, 24 N.H. 149, 158; Harrington's Case, 100 N.H. 243, 123 A.2d 396; Broderick's Case, 106 N.H. 562, 215 A.2d 705; Donovan's Case, 108 N.H. 34, 243 A.2d 308.

The purposes of the unified Bar sought to be decreed by this court in the present petition are contained in the proposed constitution filed therewith. They are, among others, to improve the administration of justice; to foster and maintain high standards of conduct, integrity,...