Over the last few years, the NH court system, the legislature, and the NH Bar Association have been struggling with exactly whom should be allowed to represent someone in a courtroom. The spark plug for all this has been the actions of Theodore Kamasinski, who is a not a lawyer, and is best known for representing several ex-wives of judges and lawyers in divorce cases. As a result of some of his legal representation and his attempts to open case files of prominent members of the legal community, he's aroused the ire of many members of the NH Bar.

A NH legislative committee, which included Kamasinski, tried to come up with a definition, but failed. A recent NH Supreme Court decsion upholds a lower court ruling that barred Kamasinski from representing a couple and even barred him from sitting at the defense table in a paralegal role.

The decision upholds RSA 311:7, which provides: "No person shall be permitted commonly to practice as an attorney in court unless he has been admitted by the court and taken the oath prescribed in RSA 311:6."

I think this ruling will impact how NH governmental officials do business and ultimately may lead to a greater respect of individual's rights. Of course, nothing happens without people pushing for change, and well, let me be the first to push.

I enjoyed my bicycle tour, and I'm sure my chief opponent at DCYF enjoyed me enjoying my bicycle tour. Sorry, Byry, the tour is over, it's time again for jousting.

Byry Kennedy, Esq.
DCYF - 129 Pleasant Street
Brown Building
Concord, NH 03301

Re: Social Workers Filing Petitions and Pleadings in Court Social Workers Advising Parents on Their Rights

Dear Attorney Kennedy,

As you know I've just returned from a four month leave of absence to bicycle across much of the country. It has come to my attention that during that leave of absence that the NH Supreme Court decided the case of In the Matter of Lisa A. Holmes and Ralph F. Holmes on October 2, 2003.

In the decision, the Supreme Court implicitly accepted the definition of "practice of law" rendered by the trial court. For your review, I shall outline the definition that was accepted:

1. Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration.

2. Selection, drafting, or completion of legal documents or agreements which affect the legal rights of an entity or person(s).

3. Representation of another entity or person(s) in a court, or in a formal administrative adjudicative proceeding or other formal dispute resolution process or in an administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review.

4. Negotiation of legal rights or responsibilities on behalf of another entity or person(s).

As you know, it is the regular practice of social workers to regularly file petitions for ex parte relief and submit them to a court without the signature of an attorney, and to similarly submit petitions for abuse and neglect without the signature of an attorney. Those practices, as well as telling parents incorrectly what their rights and responsibilities are in the matter of a DCYF investigation, would appear to squarely place them in the position of regularly "practicing law." While the statute explicitly states that a petition for neglect may be filed by "anyone," (RSA 169-C:7, I), I maintain that as a minimum, it violates the holding of Holmes decision for social workers to appear in court filing requests for ex parte relief without the signature of a DCYF attorney. Please be advised that in the future, all such pleadings that I become aware of will promptly be brought to the attention of the Attorney General and the Professional Conduct Committee.

While the New Hampshire Supreme Court might eventually hold that it is permissible under RSA 169-C:6-a for social workers to file petitions or requests for emergency relief without the assistance of the DCYF attorney, doing so after the Holmes decision and without direction of the NH Supreme Court places the Department in a very awkward position.

Since the very beginning of my practice in child protection matters, I have consistently discovered that relevant facts in parents' favor are omitted in requests for ex parte orders that would be required if these pleadings are filed by an attorney on an ex parte basis. See NH Rule of Professional Conduct, Rule 3.3(d). I shall assume that unless decided otherwise by the NH Supreme Court, that this practice does constitute the unauthorized practice of law, and will take appropriate steps as required by the rules of professional conduct. I shall also assume that relevant facts favorable to parents, if omitted, are similarly reportable to the NH Attorney General and the NH Professional Conduct Committee.

I also frequently receive calls from parents who have been told by social workers that they are not permitted to refuse department requests to either speak with their children or enter their homes. This has been a particular problem in Rockingham County, where area police departments cooperate with DCYF in a "multi-disciplinary" approach to force parents to bring children in for videotaped interviews. I have been involved in one case, and have counseled another parent who was told that they MUST bring a child in for a videotaped interview in Rockingham County. I will also report that conduct to the NH Attorney General and Professional Conduct Committee, as statements such as that would appear to fall under the giving of legal advice, not to mention that they are a blatant misstatement of 4th Amendment and parental rights.

Sincerely, Paula J. Werme

cc: NH Attorney General's Office
NH Professional Conduct Committee
Rockingham County Attorney's Office
The Honorable Edwin Kelly
Heidi Boyak

Contact Paula Werme, Esq. or return to Law Practice home page.

Written 2003 October 24, last updated 2003 October 25.