Bush nominee story

Tue Jun 22 14:02:05 PDT 2004

Can we find  a constitutional issue here?  Griffith graduated from 
law school, passed the bar and was admitted to practice in the 
District of Columbia upon being found qualified to practice law. His 
bar membership was revoked, administratively, without apparent notice 
or hearing, as an administrative sanction, when he failed to pay his 
$165 bar dues, a matter which bears not at all on his qualifications 
to practice law. The bar dues raise revenue and restrain competition 
-- they have nothing to do with an attorneys' qualifications. 
Griffith was no less qualified to practice law after he missed his 
dues payment than he was the day before.

As for practicing in Utah without a Utah license, this is a 
requirement honored more in the breach than the observance. Countless 
Washington lawyers (I used to be one of them) make a living traveling 
out of state and advising out-of-state clients on a variety of 
matters, including local state law matters, without ever joining  the 
out-of-state bar. Until we actually appear in court, no one ever 
suggests that we need to be admitted pro hac vice or bring on local 
licensed counsel, which is always a formality when it is required. I 
know of one firm in Washington that specializes in higher education 
law. So far as I know, they are licensed only in Washington, and have 
never advised anyone except out-of-state institutions of higher 
learning. Practically speaking, Griffith could have advised Utah from 
Washington about anything, without a problem, until he moved there.

The internet is erasing these boundaries. I don't know whether the 
members of conlawprof view themselves as giving legal advice, but I 
read it as advice here in DC,and I don't assume that anybody but 
Lederman is a member of the local bar.

John Noble

At 2:14 PM -0700 6/21/04, Scarberry, Mark wrote:
>If Griffith knowingly and clearly engaged in unauthorized practice in
>violation of Utah law or Utah professional responsibility regulations, then
>I'd be inclined to consider it a quite serious matter. But it is possible
>that the only clear violation involved mere negligence.
>
>According to the Justice Department (as reported in the Washington Post at
>http://www.washingtonpost.com/wp-dyn/articles/A13945-2004Jun3.html) when
>Griffith realized that the DC dues had not been paid, he paid them, thus
>becoming once again licensed in DC. I gather from the UPI story originally
>quoted by Scott that the hiatus in license status meant he could not "waive
>in" to become a member of the Utah bar. The result may be that he acted as
>general counsel in Utah knowing that he was not licensed in Utah, but at
>first believing negligently that he was licensed in DC, and then later
>possessing a valid, renewed DC license. The Marquette L. Rev. article (as
>described by Gene) suggests there is substantial disagreement whether he
>needed a Utah license. Thus during the period when he was not licensed in
>DC, he rather clearly acted in violation of unauthorized practice rules, but
>the violation may have been only negligent. During the later period, after
>he renewed his DC license, it may not be clear that he was acting in
>violation of the rules.
>
>Mark S. Scarberry
>Pepperdine University School of Law
>
>
>-----Original Message-----
>From: Gene Summerlin [mailto:gene at osolaw.com]
>Sent: Monday, June 21, 2004 1:12 PM
>To: conlawprof at lists.ucla.edu
>Subject: RE: Bush nominee story
>
>For anyone seeking additional information, there is a pretty good law review
>article discussing when in-house counsel is practicing law titled Regulating
>In-House Counsel: A Catholicon or a Nostrum, 77 Marq. L. Rev. 307 (1994).
>As the article points out, if counsel is licensed in one state, but provides
>legal advice to a corporation in another state in which counsel is not
>licensed, there is substantial disagreement as to whether this constitutes
>the unauthorized practice of law.  (Recognizing, of course, that in the Bush
>nominee situation, counsel is not licensed in any state since he failed to
>pay his DC bar dues).
>
>Gene Summerlin
>Ogborn Summerlin & Ogborn P.C.
>210 Windsor Place
>330 So. 10th St.
>Lincoln, NE  68508
>(402) 434-8040
>(402) 434-8044 (FAX)
>(402) 730-5344 (Mobile)
>www.osolaw.com
>gene at osolaw.com
>
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Mae Kuykendall
>Sent: Monday, June 21, 2004 2:52 PM
>To: SLevinson at mail.law.utexas.edu; paul-finkelman at utulsa.edu
>Cc: VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
>Subject: Re: Bush nominee story
>
>
>I think Sandy provides excellent guidance on distinguishing between
>one's expectation of the nominee's politics versus one's view of the
>defensibility of "unauthorized practice of law" statutes.
>
>There may be an assumption that a Bush nominee would not support
>opening up law practice to non-lawyers, and thus his failure to abide by
>the rule in his own case is a negative factor rather than a courageous
>act of civil disobedience.  But the question of the nominee's
>qualifications has more to do with the importance of the law he may have
>violated.  It seems likely he and the university improvised a solution
>that seemed to work, but it was nonetheless not in compliance with the
>law.
>
>Is it wise for someone who generally supports progressive policies to
>insist that practicing law without a license is a fatal defect in a
>judicial nominee's background?  Should a progressive perhaps push the
>point to highlight that the unauthoirzed practice laws are only applied
>to non-lawyers, and that's not fair?
>
>Or is it best to keep the focus on his likely performance as a judge?
>
>Mae Kuykendall
>
>
>
>>>>  Paul Finkelman <paul-finkelman at utulsa.edu> 6/21/2004 3:00:33 PM
>>>>
>Sandy:
>
>There are three issues here:
>
>One is what constitutes "practice."  Is there a difference between a
>law
>professor who went to law school "practicing" in the newspapers, and a
>
>political scientist  who never went to law school "practicing" in the
>newspapers? That is, can anyone "practice" law in the public forum?
>
>The second one involves someone who knew the rules -- signed up for the
>
>bar and did not take it. That strikes me as the point made by Mark and
>
>others about someone who believes the rules are not for him, because he
>
>is "special."
>
>The third is whether he knowingly misrepresented himself as a lawyer
>legally able to practice law, when he was not. and he clearly *knew* he
>
>was not.
>
>Paul Finkelman
>
>Levinson wrote:
>
>>Paul asks:
>>
>>Sandy, do yu really think that that writing an op-ed piece for a
>public newspaper on a constitutional issue is practicing law?  If so,
>then many people who have no law degree are practicing law all the time.
>  Doesn't "practicing law" require a client?
>>******************************
>>
>>I'll rise to the bait.  Yes, I do think that offering advice to the
>public based on one's presumptive professional expertise is a form of
>"practicing law."  It's not the kind of "practice" that the ABA
>particularly cares about, which is one reason that it lets non-lawyers
>do this as well as credentialed lawyers.
>>
>>Incidentally, I suspect that most academics who teach about the legal
>profession (or, as I prefer to call it, the "legal services industry")
>are more than a little dubious about the "unauthorized practice of law"
>statutes, which operate principally as a way of restricting the legal
>marketplace.
>>
>>I think that the nominee in question made a stupid blunder, and maybe
>it *is* necessary, as Mark and others have suggested, to make the point
>that judicial nominees must have lived within the rules laid down,
>whether stupid or meritorious.  But were I a Senator, I'd still want to
>know more, and if I liked his politics (which, given the person
>nominating him, I doubt is the case), I'd probably be willing to forgive
>this dereliction.  Perhaps it would be a good idea to have more people
>on the bench who are aware of the frailty of human beings vis-a-vis
>their legal duties, especially when those duties are (merely) malum
>prohibitum rather than malum in se.
>>
>>sandy
>>
>>
>>
>>
>>
>>
>>
>>
>
>--
>Paul Finkelman
>Chapman Distinguished Professor of Law
>University of Tulsa College of Law
>3120 East 4th Place
>Tulsa, OK   74104-3189
>
>918-631-3706 (office)
>918-631-2194 (fax)
>
>paul-finkelman at utulsa.edu
>
>
>
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