Speech to N.H. Bar Mid-winter Meeting

February 18, 2005

My remarks today will be very brief because I know the principal purpose of today’s luncheon is to honor New Hampshire lawyers who are or were in military service in Iraq and Afghanistan and to recognize their families. On behalf of the Judicial Branch we extend our appreciation, admiration and thanks for their sacrifice.

I am pleased to announce today that the Supreme Court issued an order this morning establishing a Commission on the Status of the Legal Profession in New Hampshire. In that spirit I wanted to talk to all of you for a few minutes.

My colleagues and I have spent much of the past year focused on the courts and the real challenges they face in a new century to remain responsive, accessible and affordable. Much work has been done and much remains to be accomplished. Make no mistake; the status quo is not the answer.

The judicial system has begun a new discussion and is working hard to forge a new relationship with the other branches of State government. I believe we have made real progress and my colleagues and I are optimistic about the future.

But I didn’t come here today to talk about the courts or at least the courts alone; I came to speak briefly about the legal profession and the need for the profession and the courts to reflect on where we are and where we’re headed.

I have great respect and affection for the profession of law and have indelible and fond memories of my days in practice and of the many lawyers from whom I learned so much. Lawyers do great work and volunteer much time. I admire what you do and have always enjoyed your company. I respect you a great deal.

Although I have been on the bench for about a decade now, I believe I still understand the pressures you face and the changing marketplace in which you work. In many ways it is more difficult to be a lawyer today than it was thirty-two years ago when I started. I know that.

The profession of law and the manner in which it is structured and practiced are changing. Some of the change is very positive but some, quite frankly, is not. Change brings its own consequences -- some intended, some unintended.

Large law firms are "regionalizing," "nationalizing" and even "internationalizing." Some firms, some with household names, have fallen victim to change and dissolved and others have merged and grown larger. Borders are less important to the profession and this trend will continue. Law as commodity, law as business is unmistakably on the ascendancy. Law as profession, law as calling seems less well-off and more at risk.

While large law firms are reorganizing to effectively represent clients in regional, national and global marketplaces, the mainstream of the legal profession, that is, solo and small firms, are finding it increasingly difficult to be competitive and profitable. It costs more to practice law than it used to and financial expectations are very high.

At the same time, the number of pro se parties is rising. The laws of supply and demand seem ill-equipped to solve the problem. Lawyers are working harder than ever and job satisfaction in many quarters is down. Correction is needed – not at the margins but systemically. The profession and the courts need to have a dialogue and that dialogue needs to begin sooner as opposed to later.

Not that many years ago the cutting-edge decision for large firms in New Hampshire was whether they should open offices in other communities in our State. For many years during my practice, no out-of-state law firm had offices here. Today, several out-of-state firms have a real and growing presence in New Hampshire and some New Hampshire firms have opened offices in Massachusetts. Specialization is not only increasing but more and more essential. New technologies have ironically both increased efficiencies and increased costs. In many ways technology has unpleasantly increased the speed at which we live our lives – both personally and professionally. The forces tugging at the profession are different in kind and nature than it has previously experienced and we need to take an objective look at what it all means. We need to correct what we can, enhance the positive and vision the future.

I find it difficult to believe that the legal landscape here won’t undergo even more fundamental change and restructuring before this decade is out. Just as the courts need to adapt in new and thoughtful ways, so does the profession. The viability of the legal profession depends upon it.

Job satisfaction, financial reward, professional standards and the ability of a growing number of our citizens to be able to afford a lawyer and meaningfully access the justice system will depend upon how we handle the change that is certainly coming. It is our collective obligation to do all in our power to channel it. New Hampshire is small enough for a candid and thoughtful discussion and wise enough to know its necessity and value.

Last spring I had a meeting at the Court with Dean Hutson of Pierce Law. He’s an engaging and thoughtful man. We had a wide-ranging discussion about the profession and the courts – and their mutual and often intertwined challenges. I also met with Justice Batchelder, a revered and retired member of our Court, for his insight and wisdom. Over many months last year I met with randomly-selected small groups of lawyers in my chambers, during which we talked about our mutual concerns for the profession.

As a result of those meetings and our common concerns, my colleagues and I asked Dean Hutson and Justice Batchelder to co-chair a Supreme Court Commission on the Status of the Legal Profession. Today, because of their generous commitment, I have been able to announce its formation.

Dean Hutson and Justice Batchelder have selected a respected cross section of the Bar to assist them in their work. My colleagues and I defer to their judgment on how the Commission’s work should be conducted, but are confident it will be thoughtful, open and constructive. In approximately a year the Commission will report its findings and recommendations, which I am hopeful will lead to more discussion and needed change. It will present an opportunity we cannot afford to miss.

The Bar in this State has a distinguished history and I ask all of you to assist the Commission in its important mission. Done well, the Commission’s work could not only make a difference in New Hampshire but could be a model for the rest of the nation. The challenges that the Commission will address are by no means unique to New Hampshire, but New Hampshire is unique and, for my money, the quality and character of its Bar is unmatched.

The courts and the bar need to do a better job in serving the needs of our fellow citizens, communicating with one another, staying anchored to high professional expectations and ensuring that the profession of law and the administration of justice are not unwittingly airlifted away from the very people who need them most and from a generation of lawyers yet to come who are relying on us to tend the flame. I will need your help to make that happen and I feel confident that I will have it.