by Ryan McKeen
So we’re back to the active thing again. Earlier today, Attorney General Blumenthal weighed in:
…we conclude in response to your second question that the phrase “active practice” means more than simply being a member of the bar of the state in active status.
Attorney General Blumenthal’s opinion is extremely well reasoned and researched. I completely agree with his analysis. He’s right when he says that Connecticut courts have not defined the words “active practice”.
Over the past several weeks, I’ve read lawyers disclaim any idea what it means to be engaged in the active practice of law. Frankly, I’m shocked.
Having given a lot of thought to the issue of what “active practice” means the answer is in part very simple.
What do government lawyers, in house counsel, and lawyers in private practice have in common? They have clients. That’s the lowest common denominator. The idea that in order to actively practice law requires having clients works in every instance I can think of.
For example, I give you Bob. Bob graduates law school and passes the bar. Bob pays his client security fund fee every year for 20 years. In that time, nobody hires poor Bob. Bob has never actively practiced law. No matter how popular Bob is, he’s not qualified to serve as attorney general.
And therein lies the problem for Ms. Bysiewicz. Statutorily, the Secretary of State does not have clients. The Secretary of State is the client. The client for the attorneys that work for her. And a client to the Attorney General who represents her.
So someone has to represent “someone” to be engaged in active practice? I can buy that.
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What about a contract attorney? Private lawyer farms out research to part-time contract attorney. Is that person “representing” a client?
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Ryan Reply:
February 2nd, 2010 at 10:17 pm
Sure, the attorney doing the research has the attorney that assigns the research as a client if not the client himself as an actual client.
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Bada-bing, bada-boom. She’s gone…
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Ryan, what about judicial law clerks (the ones writing opinions for judges)? Who are their clients? If it’s the judges, then what about the judges themselves? Are they practicing law? They don’t have clients. Would a person who was a Superior Court judge not be qualified to run for AG?
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Ryan Reply:
February 5th, 2010 at 10:50 am
Law clerks certainly have an attorney-client relationship with judges. Presently our probate judges can practice law. Outside of them, judges in the state are prohibited from practicing law by statute. A Superior Court judge would be qualified if she had ten years of practice prior to coming on the bench which is a virtual certainty.
Look, I think the statute is stupid. It’s one of many paternalistic statutes on the books. We are the Nanny state. I see nothing wrong with allowing voters to decide if Ms. Bysiewicz has the necessary experience to serve as attorney general. Nothing at all. But, I don’t make the laws.
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Law professors ?
Mediators ?
Arbitrators ?
There are exceptions but I think having clients is a start.
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Ryan Reply:
February 5th, 2010 at 10:46 am
Law professors actively practice law? That’s hysterical!
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EmGee Reply:
February 5th, 2010 at 12:18 pm
I second Ryan’s comment — the only law professors that actively practice law are adjunct (read: part-time) professors and those that run clinics. Most of my former professors would unquestionably fail to meet the requirements for AG, since they may have practiced for a year or two, if that, before entering academia.
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I think people are defining the practice of law too narrowly.
Here are some examples from the ABA website:
http://www.abanet.org/cpr/model-def/model_def_statutes.pdf
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I think Ryan’s definition works. Even if an attorney was independently wealthy, and did nothing but pro bono work for non-profits and indigent clients (meaning, never billed nor collected fees) he would still be actively practicing. He had clients.
But just hanging out a shingle, and reading law journals while waiting for the phone to ring, and never actually doing any lawyering, hardly seems to constitute ‘actively practicing.’
The point is that an AG candidate should have some minimum amount of experience. If just being a member of the Bar is sufficient, then that is OK, too, if that’s what the law says. But it doesn’t.
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“The practice of law is open only to individuals proved to the satisfaction of the court to possess sufficient general knowledge and adequate special qualifications as to learning in the law and to be of good moral character. A dual trust is imposed on attorneys at law. They must act with fidelity both to the courts and to their clients. They are bound by canons of ethics which are enforced by the courts. The relation of an attorney to his client is pre-eminently confidential. It demands on the part of the attorney undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity and utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interests of his client. . . . The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a large variety of subjects and the preparation of legal instruments covering an extensive field. Although such transactions may have no direct connection with court proceedings, they are always subject to subsequent involvement in litigation. They require in many aspects a high degree of legal skill and great capacity for adaptation to difficult and complex situations. No valid distinction can be drawn between the part of the work of the lawyer which involves appearance in court and the part which involves advice and the drafting of instruments. The work of the office lawyer has profound effect on the whole scheme of the administration of justice. It is performed with the possibility of litigation in mind, and otherwise would hardly be needed. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill and of sound moral character, acting at all times under the heavy trust obligation to clients which rests upon all attorneys. The underlying reasons which prevent corporations and associations, as well as individuals other than members of the bar, from appearing before the courts apply with equal force to the performance of these customary functions of attorneys and counselors at law outside of courts.”
State Bar Association of Connecticut v. Connecticut Bank & Trust Co., 145 Conn. 222, 234-35 (1958).
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Ryan Reply:
February 11th, 2010 at 1:49 pm
Okay.
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