The ailing state of government lawyering in NH

There’s growing evidence of a crisis – and it needs our attention

Since unceremoniously and precipitously firing our last highly qualified U.S. Attorney, the president has failed to appoint a replacement in the District of New Hampshire, leaving our state’s federal law enforcement outposts without an appointed captain to steer their efforts.

This new reality comes in the midst of renewed reports that the New Hampshire Attorney General has had to contract out core investigative functions involving consumer protection in the opioid crisis.

That fact became statewide news as a result of a strange NH Supreme Court decision in the Actavis matter, in which the court refused to address the merits of arguments from pharma companies that our state’s lawyers failed to follow state law when hiring outside counsel to represent our interests.

Meanwhile, three elected county attorneys responsible for public safety in New Hampshire, including two presiding over the largest counties in the state, Rockingham and Hillsborough, have been the subject of intense public criticism regarding their management and judgment.

One, the county attorney in Carroll County, has had to surrender management of his office for extensive periods of time after reports of incompetence in matters involving sexual assault.

Another, Rockingham County, had its top prosecutor removed from office for months amid a public corruption investigation. His elected replacement was sued for taking office and on her first day firing another experienced prosecutor who blew the whistle on the underlying misconduct.

And in the past few weeks, the Manchester city solicitor and at least one senior attorney resigned amid reports that his office had not trained its attorneys to handle a large volume of domestic violence cases in our state’s largest city.

As if these events weren’t enough, longtime top prosecutor Mike Valentine is leaving the Hillsborough County Attorney’s office after more than a decade of service to our criminal justice system. He has been the state’s top prosecutor in regard to the civil commitment process for sexually violent predators.

After a decade of service, his assessment is that this system asks government attorneys to enforce laws to protect us from violent crime while cutting off resources to do so effectively.

These reports are no laughing matter. There is evidence of a crisis in government lawyering in this state, and it is happening in the midst of an opioid epidemic, with news of shootings throughout New Hampshire becoming a daily reality, and with devastating reports regarding the failure of the state’s government lawyers to respond to known instances of child abuse at Division of Children, Youth and Families.

And now it will be government lawyers who will decide how to balance the public’s interest in responding to a lawsuit filed by senior legislators of both parties challenging the Secretary of State’s decision to disclose voter data, willy-nilly, to a White House under investigation for colluding with Russians.

We cannot be content, as a state, with the state of things as they now stand with government lawyers given the importance of the issues our government lawyers must face in the course of their responsibilities.

We need a fully functioning corps of government lawyers to make tough decisions in very tough circumstances involving lots of pressure and, in many cases, no perfect or perfectly right answers.

Some committed knee-jerk anti-government commentators will forget themselves and fall over backward to engage in personal attacks on the husbands, wives, mothers and fathers who hold these jobs and who, like all of us, reflect the normal range of human capacity and commitment.

The very human resignation email sent by ACA Valentine in announcing his resignation (the contents of which were reported in the Union Leader on July 10) demonstrates that the toughest and smartest prosecutors are not immune from the subject matter and caseloads they handle.

Scapegoating folks like ACA Valentine and other government lawyers will only perpetuate the problem, as the ranks thin and superficial negative publicity that fails to address systemic problems render these jobs more and more unattractive to talented and conscientious lawyers.

Rather, care at the very highest levels of our state’s government must be taken to monitor the qualifications, abilities, resources and coordination of these government lawyers to ensure that they are able to “do their jobs” and protect our legal rights, as one great professional football coach might demand.

Policymakers should set aside their ideological commitments and seek to understand who populates these positions of public responsibility, how they work together within our system, and whether the current configurations make sense in modern times.

To that end, it may be time for our leaders to convene a commission on the subject to report back to us regarding the performance of these public officials and to make recommendations regarding steps we may take to obtain greater returns to the public.

We may be a state that treasures small government, but we should not be a state that tolerates or abets ineffective government where fundamental rights and legal interests surrounding our public safety, well-being and status as voters in a democratic republic are at stake.

Attorney Michael S. Lewis, a shareholder at Rath, Young and Pignatelli, Concord, is a former assistant attorney general. The opinions in this piece are his own.