by Ryan McKeen
A quick reflection upon reading the Bysiewicz opinion:
If what Ms. Bysiewicz has done is the practice of law then aren’t Legal Zoom and other similar companies practicing law in Connecticut?
To this blogger, it would sure seem that way.
OMG. No. Sheldon very clearly explains the difference.
Oh wait, this isn’t Twitter.
So, no, I believe you are incorrect based on a careful reading of the explanations given by Judge Sheldon in his well reasoned, albeit lengthy, decision.
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Where does Sheldon explain the difference?
You mean to tell me that if a hypothetical legal zoom case were in front of Sheldon he’d find that legal zoom wasn’t engaged in the practice of law?
We’re not lawyers but we were founded by to lawyers?
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Ryan Reply:
May 5th, 2010 at 5:31 pm
Sheldon takes a much broader view of what it means to be practicing law than Mark Dubois did in his brief.
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The nice thing about this decision is, everyone in Connecticut now knows where not to go for legal theorizing about what constitutes the practice of law: this blog.
Sheldon got the quite simple fact that you and Chris Healy and Mark DuBois miss: the definitions of practice found in the Practice Book are essentially penal rules, desgined to allow for the punishment, including possibly criminal punishment, of people who are performing the unauthorized practice of law. In that arena, a stringent definition is appropriate: we only want to punish people who clearly are practicing law in an unauthorized way. We don’t want to punish people who might or might not be practicing law; it has to be clear. So, we make that practice book test a tough-to-meet standard.
In contrast, the purpose of the practice qualification for AG is entirely, utterly different; the purpose is to make sure the AG is versed in and familiar with the law. Also, the frame we view this question in is entirely different: there is a presumption of eligibility to run for office, because not only is the candidate’s own constitutional right to run at issue, also at issue is the important constitutional right of the voters to choose whom they want for any given office. (Bysiewicz in fact is basically accurate to call this in important part a victory for the voters’ right to choose.) So, much to the contrary of the normal practice book situation where we are reluctant to find that a person has been practicing law in an unauthorized way, when the right to run for AG is at issue, the presumption is that work of a legal nature is sufficient to meet the practice requirement.
Really, the issue is almost similar to an opposite burden of proof:to prove the unauthorized practice of law, the burden is on the bar authorities to prove for certain-sure the person was practicing law; whereas in the Bysiewicz case, the burden was effectively on the Republicans to prove she was not practicing law.
DuBois’s analysis was never on the mark; because he was answering a very different question, namely what constitutes the unauthorized practice of law; whereas the issue in the Bysiewicz case was, is there any reasonable way to construe her public career as the practice of law.
Notice, too, Sheldon was influenced by the fact that Bysiewicz regularly personally handles, and does not lateral to her staff attorneys, the frequent inquiries, usually oral, for legal guidance her office receives from local officials and members of the public.
Because of the presumption of eligibility, and because of the judge’s detailed fact-finding of instances where she applies legal analysis to the facts of the matters before her, this decision is well-positioned to withstand appeal.
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Ryan Reply:
May 6th, 2010 at 8:16 am
I think the only theory that I offered was that in order to practice law a lawyer needs a client. DuBois agreed. Do you think it’s possible to practice law without a client? I don’t.
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Ryan,
I’m not yet 100% convinced that there must be a “client,” but, nonetheless, as this opinion states, her client is the state of Connecticut. I think this is true for most attorneys practicing in state government. What about all the staff attorneys in her office? Who is their client? What about most of the attorneys at the AG’s office who never go to court or deal with individuals? Who is their client? What about the attorneys at so many state agencies? Who is the client? Simply put, it is the state.
I think the same holds true for judges and attorneys in the judicial branch. Their client is the state of Connecticut. (hmmm can a judge practice law while a judge – interesting question)
I do wonder about the legislative branch – are attorneys who sit on the judiciary committee practicing law at that time? I think, under the reasoning of this opinion, they are – and, again, the client is the state of Connecticut.
I enjoy your blog – and appreciate the questions you raise.
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Ryan Reply:
May 6th, 2010 at 8:58 am
This is where I disagree with Sheldon. Her client is not the State of Connecticut – no one tells Susan what to do. She doesn’t owe traditional duties (e.g. confidentiality and diligence) to the State. Simply put, she doesn’t have a fiduciary relationship with the State. Susan is the client for her staff attorneys.
Contrast this with assistant A.G.s, State’s attorneys, and legislative and departmental attorneys – all of whom take direction from others and owe fiduciary duties to the state.
I don’t think legislators who are attorneys are practicing law when they’re legislating. They’re making law not practicing it. DuBois clearly rejected this position. It opens up a whole can of worms that really no one wants open.
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matt Reply:
May 6th, 2010 at 5:45 pm
“I don’t think legislators who are attorneys are practicing law when they’re legislating. They’re making law not practicing it.”
If that were true, Lieberman would not have been qualified to become AG: he left private practice in his time as a State Senator.
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Ryan Reply:
May 6th, 2010 at 9:03 am
I think you’re right that the question about whether or not judges practice law is very interesting but I think resolved by statute. Statutorily, non-probate judges are prohibited from practicing law.
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Sid, sorry, but you are so off the mark. To anyone who REALLY knows what goes on at the SOS office, it is clear that she has absolutely not “practiced law” while there… Get real.
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