## Facts

- The New Hampshire Supreme Court previously ordered a unified (integrated) bar, requiring all attorneys to be members of the New Hampshire Bar Association and to pay dues as a condition of practicing law in the state.
- The court justified unification as part of its inherent authority to regulate the practice of law and to supervise attorneys, including admissions, discipline, ethics, continuing legal education, and related oversight.
- In 2003, the legislature enacted RSA 311:7-g to 311:7-i, including a provision requiring the Association to conduct and be bound by a membership referendum on whether the bar should remain unified.
- The statute’s referendum requirement conflicted with the court’s standing orders mandating bar unification.
- The Association prepared and mailed ballots to its members but did not count them, and instead petitioned the supreme court to exercise original jurisdiction and declare the statute unconstitutional.
- The court accepted original jurisdiction to promptly resolve the institutional conflict and avoid uncertainty over which branch controls the bar’s structure.

## Issues

1. Whether RSA 311:7-g, requiring a binding referendum on bar unification, violates separation of powers by encroaching on the judiciary’s inherent authority to regulate the practice of law and determine the bar’s structure.
2. If RSA 311:7-g is unconstitutional, what effect that has on the validity or operation of related statutory provisions addressing unification.

## Decision

- The court exercised original jurisdiction to decide the constitutional dispute.
- The court held RSA 311:7-g unconstitutional because it encroached upon inherent judicial powers in violation of Part I, Article 37 of the New Hampshire Constitution.
- The court reaffirmed that the decision to unify the bar, and the structure through which attorneys are regulated, is for the judiciary to determine.
- The court treated the constitutional conflict as arising from the statute’s enactment itself, not from the outcome of any referendum.

## Legal Principles

- Regulation of the practice of law, including supervision of attorneys and the structure of the bar organization used to carry out that supervision, falls within the judiciary’s inherent authority.
- New Hampshire’s separation-of-powers provision bars legislative action that interferes with essential judicial functions or reallocates core judicial decision-making.
- A statute that subjects a judicially mandated unified bar to approval, rejection, or alteration via a compelled and binding membership referendum impermissibly intrudes on judicial power.
- When a statute directly conflicts with a court order issued within the judiciary’s inherent regulatory authority, the statute is unconstitutional to the extent of the conflict.

## Conclusion

The New Hampshire Supreme Court invalidated RSA 311:7-g because it attempted to shift control over bar unification from the judiciary to a statutorily compelled membership vote, thereby violating separation of powers and reaffirming the court’s exclusive authority to determine the bar’s unified status.


In re Petition of N.H. Bar Ass'n, 855 A.2d 450 (N.H. 2004)