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License-Free Lawyering


The Gods have their own rules. — Ovid, “Metamorphoses”
One of the first things Thomas B. Griffith will want to do as he takes his seat on the U.S. Appeals Court for the District of Columbia is convince his colleagues of the importance of changing their Rule 49. It only makes sense that he work to get it changed since it was a rule he flaunted during the time he practiced in that jurisdiction and he can tell other members of the court how useless the rule really is. Then again, he might be thanking his lucky stars that he didn’t get caught. Or caught so it really mattered.
Judge Griffith serves to remind us that if you are sufficiently conservative, a lack of integrity or respect for the law is no hindrance to advancement in the Bush administration. In the Bush White House conservative philosophy trumps morality and ethics every time. The fact that Judge Griffith was Mr. Bush’s second choice does not make the lesson less painful. The first choice was Miguel Estrada.
Mr. Estrada’s confirmation was filibustered and in 2003 he dropped out of contention. He wasn’t filibustered because he lacked the ethical qualities that the legal profession expects of its members even when they are as important as Judge Griffith. Estrada’s confirmation was filibustered because his views, while unknown, were believed to be out of the legal mainstream. And instead of proving his critics wrong he stonewalled them. Estrada refused to discuss his views or provide samples of his legal writing that might have demonstrated his legal philosophy. Ultimately, he withdrew his name.
Whether or not the country and the federal bench were well served by his withdrawal is impossible to know. What is known is that Judge Griffith, the man who has been elevated in his place, is someone who – had the facts about his career been known by appropriate authorities before he was nominated — might have faced severe discipline for his flagrant disregard of the professional rules governing the conduct of lawyers in the District of Columbia and Utah.
Which takes us to Rule 49. This rule of the U.S. court of appeals of the District of Columbia says: “No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these rules.”
None of the exceptions applies to Judge Griffith who practiced law for three years in that jurisdiction without the required license. Had the licensing authorities known of his transgression he would have faced discipline. Happily for him, he left District of Columbia before anyone noticed that he didn’t find the court’s rules to his liking. And when the matter was brought to his attention he blamed his staff saying, in effect, that he was much too important to attend to such trivia. His employees should have insured his compliance with applicable rules.
Having successfully flaunted the rules of the court on which he now serves, Judge Griffith worked as chief legal counsel for the Bringham Young University for four years. Normally, anyone acting as legal counsel for the University would be considered to be practicing law in that state. Like the District of Columbia, Utah has a rule against practicing law without a license.
Rule 1.0 of Chapter 13a of the Rules of Professional Conduct of the State of Utah provides: “Except as set forth in subsection (c) of the Rule, only persons who are active, licensed members of the Utah State Bar in good standing may engage in the practice of law in Utah.” It did not include the phrase “unless you are really important or are called Thomas B. Griffith.” It didn’t matter. No one noticed that he was again ignoring the rules imposed by the court and no disciplinary proceedings were commenced.
The one thing we have learned from Mr. Griffith’s conduct is that rules don’t apply to him. And, as a federal judge he will be beholden to no one. He will like that. But if any of you are contemplating practicing law in the District of Columbia, it’s probably a good idea to follow the rules. A sitting judges thought himself above them but Lady Luck – or the federal bench – might not smile on all who thus transgress.

Share  Posted by Christopher Brauchli at 8:11 PM | Permalink

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