by Ryan McKeen
Here is some of what Chief Disciplinary Counsel Mark DuBois had to say to the court in an amicus brief he filed today. They say all the good stuff is in the footnotes and this brief is true to form. Here’s footnote 6:
The Hartford Courant of April 18, 2010 reported an investigation of the plaintiff concerning the use of her office computer to track holiday cards. The undersigned hopes he does not get a grievance complaint to investigate over the same issue.
Here’s footnote 5:
This is not to say that the plaintiff can never be practicing law when she pursues her constitutional and statutory duties. As discussed below, to the extent that the plaintiff visits her with her staff attorneys and works with them on legal issues she may well be practicing law.
Suffice to say, overall, Attorney DuBois’ has a different idea of what it means to practice law than Ms. Bysiewicz.
Here are some clips from Attorney Dubois’ brief:
LEGISLATIVE ACTIVITY BY CONSTITUTIONAL OFFICERS IS NOT THE PRACTICE OF LAW
Rule of Professional Conduct 3.9 recognizes that a lawyer, when representing a client before a legislative body, is practicing law and imposes upon her the duties of candor, fairness and decorum found in Rules 3.3 through 3.5. However, it would be argued that, as above, when the plaintiff appears in her official capacity before legislative committees to advocate for or against some public enterprise or initiative she is not practicing law, but rather carrying out the duties of her office.
As with the truth-telling example above, imagine a lawyer-legislator or a lawyer-Secretary in the circumstance where tempers become heated during a legislative debate or committee hearing. Would that person be subject to a grievance because they were practicing law, while their non-lawyer opponent across the aisle was not so constrained? Would the Grievance Committee be expected to police issues of candor by legislators or political figures when carrying out their official duties simply because the person is also a lawyer? Or would it be simpler, cleaner and more constitutionally appropriate to leave each branch of government to its own separate magistracy, and mix them only on those rare occasions when an issue of clear concurrent jurisdiction presented itself?
I’ve said it before, the practice of law is all about clients:
THE TIPPING POINT
Perhaps the answer to the question of when conduct becomes the practice of law can be found in the trial court decision of the CBT matter, found at 20 Conn. Supp. 248, 261-62 that “(s)ince to constitute the practice of law, the acts must be performed on behalf of another, the vital question for determination… is whether the acts performed by the banks…are performed for themselves, as incidental to their duties as fiduciaries, or, on the other hand, from their very nature are performed on behalf of others.” In that case, the court found that the conduct by the banks was to promote its own fiduciary business, and, thus, whether performed “through lay or lawyer”, CBT, 20 Conn. Supp. at 268, would not be the practice of law.
So also here, when citizens and public officials call the Secretary of the State, they are provided important and detailed legal information, but not as clients of lawyers, but as citizens of a government. Thus, the operation of that office is not governed or controlled by the Judicial Branch as the practice of law. And so also, complaints about service would be dealt with in a political setting, and not by the filing of a grievance alleging that the Secretary or one of her lawyers had not been competent or diligent.
A much different analysis would apply when the Secretary interacts with her staff attorneys. Whether she seeks their advice as a client of a lawyer (c.f. the personification of the office, American Tel. & Tel, 86 F.R.D. at 621) or as a colleague is not for the undersigned to comment on. How these questions should be answered in the present case is a matter for advocacy by the parties, and decision by the Court. However, it may well be that the answer to these questions resolves around whether the conduct in question is that of a political figure who also happens to be a lawyer, or a lawyer who also happens to be a constitutional officer of the state.
Attorney DuBois brief is both well written and researched. What he has to say as Chief Disciplinary Counsel, while not dispositive, is very important.
I’m guessing that Attorney DuBois does not think that a rock star with a law license is actively practicing law while on stage. But that’s just speculation on my part. The rock star issue was not addressed in his brief.