Bush nominee story

Scott Gerber s-gerber at onu.edu
Mon Jun 21 10:35:06 PDT 2004

Douglas Laycock is correct.  There is no question that a university 
counsel (not to mention a D.C. lawyer, when he was practicing law in 
D.C. w/o a license) is practicing law.  Indeed, the ABA spent a lot of 
time over the last couple of years debating whether to create an 
in-house counsel exception to the licensing requirement.  The ABA 
decided to leave matters as they are:  in-house counsel, which includes 
the top person (general counsel), must have a license to practice law 
in the state in which they work.

Scott Gerber
Law College
Ohio Northern University

Volokh, Eugene wrote:

>    Well, I'd love to hear what the rules are.  Is anyone up on Utah
>law, or on professional responsibility law more generally?  Do
>organizational employees need a law license to advise the organization
>on legal matters?  Does it turn on their post (e.g., a Vice-President
>who takes advantage of his legal knowledge in helping the President make
>decisions vs. someone whose title is General Counsel and whose job is to
>give legal advice)?  Really, this seems to likely be a question on which
>there's a fairly definite answer, whether in Utah or more generally as
>part of generally understood multistate professional responsibility law.
>Now if we could only someone who can give us that answer -- and for free
>. . . .
>    Eugene
>	-----Original Message-----
>	From: Mark Tushnet [mailto:tushnet at law.georgetown.edu] 
>	Sent: Monday, June 21, 2004 10:12 AM
>	To: Volokh, Eugene
>	Cc: conlawprof at lists.ucla.edu
>	Subject: Re: Bush nominee story
>	From what's in the press, I would think the burden has shifted
>to those who would contend that a person serving as general counsel to a
>university in Utah for several years and who did not have a Utah law
>license was *not* "practicing law without a license in Utah."  (I would
>think that the "closely associate yourself with someone with a Utah
>license" advice might work generally if the association were with
>outside counsel, and probably would work as an interim measure pending
>Griffith's acquiring a Utah license in a timely manner -- which is why,
>I assume, it seems to have been coupled with the "take the bar exam"
>	Volokh, Eugene wrote:
>			But the question, I take it, is whether this
>violates the rules.
>		Does it?
>			Eugene
>		Mark Tushnet writes:
>			1.  Do any of those distinguished academic
>			practice law?  (I 
>			don't.)  2.  I thought that judges were supposed
>to follow 
>			the rules -- 
>			or, to put it slightly differently, that there
>was something 
>			important 
>			in ensuring that those who make the laws are
>subject to them as well.
>			As far as I can tell from the story, Griffith
>first let his 
>			membership 
>			in the DC bar lapse because of negligence (in
>the first instance) by 
>			someone at his law firm, who was supposed to
>ensure that 
>			every lawyer's 
>			membership was renewed.  Then, he moved to Utah
>			discovered that he 
>			couldn't be waived into the Utah bar because he
>hadn't been a 
>			member in 
>			good standing of the DC bar for the requisite
>period.  He was advised 
>			(a) to take the Utah bar exam, for which he
>registered (but which he 
>			then did not take), and (b) to "closely
>associate" himself 
>			with a member 
>			of the Utah bar, which he appears to have done
>(in some 
>			sense) by having 
>			members of the Utah bar as his subordinates in
>the general counsel's 
>			office.  I'll give him a pass on the DC bar
>problem, while 
>			noting that 
>			my wife has never had a problem keeping her
>membership in the 
>			Wisconsin 
>			bar for the twenty-odd years we've been out of
>			But I have to 
>			say that his behavior in Utah seems to me to
>reflect a view 
>			that rules 
>			are made for other people, not for him.
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Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810

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