A Voluntary Beginning Rooted in Legislative Charter
In my previous pieces for Granite Grok—”An Open Letter to the People of New Hampshire” and “The Quiet Coup That Stole New Hampshire’s Legal Profession“—I delved into the current state of affairs within our state’s legal system, highlighting concerns over how power has shifted and consolidated in ways that may undermine the principles of justice and individual liberty. To fully understand the “quiet coup” I described, it’s essential to step back and examine the origins of the New Hampshire Bar Association (NHBA). This backstory reveals a humble, voluntary organization born from legislative action in the 19th century, one that was designed to serve lawyers and the public without the mandatory grip it holds today. Let’s trace its roots and see how foundational laws and constitutional provisions shaped its early purpose.
The Birth of the Oldest Statewide Bar in America
The New Hampshire Bar Association traces its origins to the late 19th century, earning it the distinction of being the oldest statewide bar organization in the United States. Its formal establishment came on July 2, 1873, when the New Hampshire Legislature passed a special act incorporating “The Bar Association of the State of New Hampshire” as a voluntary membership organization for attorneys. This wasn’t some self-appointed club; it was grounded in Chapter 115 of the Laws of the State of New Hampshire, Passed June Session, 1873—a deliberate act of the people’s representatives to create a body that could elevate the legal profession.
At its core, the association was empowered to promote professional standards, foster legal education, and support the administration of justice among New Hampshire lawyers. Membership was optional, reflecting the Granite State’s longstanding ethos of freedom and self-determination. Attorneys could join to collaborate, share knowledge, and uphold ethical practices, but no one was compelled to do so. This voluntary nature aligned with New Hampshire’s constitutional framework, which carefully delineates the legislature’s authority over such entities.
Constitutional Bedrock: Charters, Corporations, and Antitrust Principles
To appreciate the NHBA’s creation, we must look to the New Hampshire Constitution itself. Part II, Article 5 delegates to the legislature the power to grant charters of incorporation, ensuring that organizations like the bar association derive their legitimacy from elected officials rather than unchecked private interests. This provision underscores the founders’ intent to keep corporate and associational power in check, subject to public oversight.
Further reinforcing this was the 1903 amendment to Part II, Article 83, which strengthened the legislature’s authority over corporations. Often seen as New Hampshire’s version of the federal Sherman Antitrust Act, this change aimed to prevent monopolistic practices and ensure fair competition. In the context of the legal profession, it served as a safeguard against any group—bar association included—from dominating the field in ways that could stifle innovation or access to justice. The NHBA’s charter was granted under this vigilant constitutional umbrella, positioning it as a servant of the profession, not its master.
The 1935 Ban on Corporate Law Practice: Protecting the Profession from Commercial Intrusion
Fast-forward to 1935, a pivotal year in solidifying boundaries around legal practice in New Hampshire. That year, the legislature enacted RSA 311:11 under Title XXX (Occupations and Professions), Chapter 311 (Attorneys and Counselors), in the section on Regulation of Practice of Law. Titled “Practice by Corporations Prohibited,” this statute made it crystal clear: No corporation could practice law, appear in court, draft legal documents unrelated to its own business, or hold itself out as entitled to do so.
The law’s language is unambiguous and forceful:
No corporation shall practice or appear as an attorney in any court in the state or before any judicial body or hold itself out to the public or advertise as being entitled to practice law, and no corporation shall draw agreements, or other legal documents not relating to its lawful business, or draw wills, or practice law, or give legal advice or legal information as an attorney, or hold itself out in any manner as being entitled to do any of the foregoing acts, by or through any person orally or by advertisement, letter, or circular; provided that the foregoing prohibition shall not prevent a corporation from employing an attorney in regard to its own affairs or in any litigation to which it is or may be a party.
Violations were no slap on the wrist—corporations faced felony charges, while individuals acting on their behalf could be guilty of a misdemeanor. This measure, sourced from 1935, 34:1 (and later referenced in RL 381:11, RSA 311:11, and amended in 1973, 529:66), was a direct response to emerging threats of commercialization in the legal field. It preserved the attorney-client relationship as a personal, professional bond, free from corporate profit motives that could erode trust and independence.
In essence, RSA 311:11 was a legislative firewall, ensuring that the practice of law remained in the hands of individual attorneys accountable to ethical standards—standards that the voluntary NHBA was meant to uphold.
The 1967 Name Change: A Petition Under Charter Authority
By 1967, the organization sought a minor evolution in identity. As required by Section 6 of its original legislative charter, the Bar Association of the State of New Hampshire petitioned the legislature to amend its name to the current “New Hampshire Bar Association” (NHBA). This change was procedural, maintaining the voluntary structure while updating the branding to better reflect its role in a modernizing state.
Yet, as we’ll explore in future installments, this seemingly innocuous timeline belies deeper shifts. What began as a voluntary association chartered to promote excellence in the law would, over decades, transform into something far more entrenched—a story of quiet consolidation that raises questions about accountability, mandatory membership, and the true guardians of justice in New Hampshire.
Stay tuned as we continue unraveling how these foundations were built upon, and sometimes undermined, in the pursuit of power within our legal system.
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