Oops — I forgot

June 21, 2004 | 22 comments
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The judicial nomination of Thomas Griffith, General Counsel of Brigham Young University and Bush appointee to the D.C. Circuit Court of Appeals seems to have hit a slight snag — as reported by this morning’s Washington Post, Griffith appears to have been acting as the University’s chief legal officer without the little detail of a license to practice law.

Apparently Griffith’s admission to the District of Columbia bar lapsed for failure to pay his dues, and he never quite got around to sitting for the Utah bar. Highly embarassing, but perhaps not fatal to the nomination if no one’s out for blood during the confirmation process.

22 Responses to Oops — I forgot

  1. Russell Arben Fox on June 21, 2004 at 11:11 am

    Oh bother–I just posted that article under the original thread announcing his nomination here. While I’m sure he’s smart and good and capable, the guy also sounds like a bit of a slacker to me.

  2. fix on June 21, 2004 at 11:12 am

    fix

  3. Dan Burk on June 21, 2004 at 11:25 am

    Sorry about the duplicative posts — a danger of inviting loose cannon guest bloggers onto the site.

    However — this is certainly not legal advice, as I am not admitted to practice wherever the T&S server is located — but reproducing large blocks of copyrighted text from the Washington Post is maybe not the best idea. Links are safer.

  4. obi-wan on June 21, 2004 at 11:32 am

    This seems to me highly ironic, given BYU’s customary hysteria over the length of skirt hemlines, over sideburns, and parking tickets, that their chief legal officer has been continuously breaking the law for the past several years. Where is the Standards Office when you need them?

  5. Nate Oman on June 21, 2004 at 11:40 am

    For the record: It is not obvious that Griffith’s work at BYU violated the law. Much of the work of a general counsel is administrative and hence would not constitute the practice of law. Furthermore, Griffith’s staff included members of the Utah bar with whom he associated on Utah cases. Finally, it is not necessary to have a Utah law liscense when practicing law in matters relating to federal law. I don’t know whether or not the lapse of Griffith’s DC bar membership would also mean the lapse of his membership in various federal bars. That said, it was an unfortunate and rather bone-headed oversight. On the other hand, he has letters from Abner Mikva (Clinton’s White House Counsel) and lawyers at Williams & Connelly (Democratic firm that represented Clinton during impeachment) taking the position that this was an unfortunate but unimportant oversight. We’ll see what happens.

  6. Dan Burk on June 21, 2004 at 12:02 pm

    Hi Nate –

    Since my primary area of interest is one of federal law, I’ve dealt with variations of this admission to practice problem off and on over the years. I think it’s very hard to credibly argue that this is not unauthorized practice. At least some portion of Griffith’s routine activities had to be illegal.

    I haven’t specifically researched Utah ethics decisions, and it’s true that appearing before a federal court or federal agency does not require a state bar admission, especially if there is a pre-emptive federal bar admission. But most states would take the position that advising a client within the state on matters of federal law constitutes unauthorized practice.

    Associating yourself with a member of the relevant state bar on a case may also be fine for a limited period of time, if you are a low-level functionary. I don’t think that excuse works very well if you are the chief legal officer — imagine a partner in a firm claiming that he didn’t need to be admitted to practice because he worked with some assocates who are. No way.

    And, if I pay Abner Mikva and the Williams folks a big enough retainer, they’ll come up with an opinion letter that says whatever I want it to. Everyone in Washington knows this.

    The only thing that potentially saves the nomination is that you don’t necessarily need to be admitted to practice to be a federal judge. Having said that, I am acquainted with at least one well-qualified, conservative, Latino, Bush judicial nominee whose nomination was dropped like a ton of bricks down a well when it was discovered that he was not admitted to practice — that just doesn’t go over well in a confirmation hearing.

    It really depends on whether anyone wants to make an issue out of it. And it really is an incredibly stupid mistake.

  7. Davis Bell on June 21, 2004 at 12:39 pm

    I find all of this quite perplexing. Griffith was my stake president at BYU, and though I didn’t by any means know him well, such an oversight doesn’t seem in keeping with his character. However, I tend to think of this whole affair as just that — an oversight.

    Obi-wan raises an interesting point; I would imagine this is a case of no one watching the watcher.

    I’m also surprised Drudge covered this.

  8. Nate Oman on June 21, 2004 at 12:41 pm

    Dan: This sounds about right to me. I suspect that in ANY nomination to the DC Circuit, people are looking for a reason to kill it.

  9. lyle on June 21, 2004 at 2:27 pm

    Um…sad for Tom. For those that want to be vitriolic; consider that at least 2-3 people on this blog know Tom personally. Unforunate oversite.

    The fact that it was probably Republic staffers who leaked the info cuz they are upset that Hatch is being ‘nice’ & not playing hardball like the Democratic obstructionists…is probably what Drudge should be covering. Or that folks like me in PA are considering whether to vote against Sen. Spector & hope that the GOP still retains control of the Senate…

  10. Davis Bell on June 21, 2004 at 5:12 pm

    Lyle,

    Are you conjecturing, or do you have a source on that?

  11. lyle on June 21, 2004 at 5:18 pm

    Sr. Bell: Pure conjecture. No need to mention it to your brother or anyone on Judiciary. However, if they happen to know who will be Judiciary Chair if I manage to get Spector un-elected & the GOP retains control…inquiring (Democratic voting?) minds want to know. :)

  12. Matt Evans on June 22, 2004 at 2:53 am

    “But most states would take the position that advising a client within the state on matters of federal law constitutes unauthorized practice.”

    Dan — it seems to me that Tom can’t be guilty of this particular charge because BYU isn’t Tom’s client, it’s his employer. No law requires businesses to have a lawyer review and sign their contracts or provide the typical tasks of a general counsel’s office. BYU could ask any of their employees to review a legal document and say what they think of it.

    Because of this, I don’t see any possible hook the law could have. The only party who has a claim is BYU.

  13. Dan Burk on June 22, 2004 at 9:56 am

    Matt — An attorney’s client is always an attorney’s employer. That’s part of the agency relationship.

    Do you think that if someone wanted discovery of Griffith’s legal memoranda to BYU that there would be no attorney-client privelege?

  14. Scott on June 22, 2004 at 11:30 am

    This was not an “oversight.” Missing a deadline for paying your bar dues in a particular year might be an oversight. But it strains credibility to claim that one inadvertently failed to pay bar dues for three years in one state and then four years in another. The fact that he signed up for the Utah bar exam shows that he was aware of his status. Yet he didn’t show up to take the exam.

    You don’t get to the position he’s in by being sloppy or stupid. If he was aware of his status, he likely took precautions to ensure he wasn’t in violation of Utah law in his activities as general counsel. So the fallout of this will probably be political rather than legal. (It may well be fatal in the confirmation hearings.)

    As for what does and doesn’t constitute unauthorized practice of law in Utah, see the following from the state bar’s web page: http://www.utahbar.org/upl/what_is_upl.html

    Scott

  15. Matt Evans on June 22, 2004 at 12:07 pm

    Dan,

    I don’t know this area of law, but to charge someone with the unauthorized practice of law, there has to be more to it than “doing the job of a lawyer without being a member of the bar.”

    My bar dues have lapsed since I left my firm, but I still do all of the legal work for my business. I wrote our waivers, negotiated and rewrote our office lease, wrote the employment contracts, and did our trademark petitions. It would appear that you believe I am engaged in the unauthorized practice of law. But this doesn’t make sense to me — I know that I’m not the only businessmen who writes contracts and interprets statutes as part of their job. Otherwise contracts not written and interpreted by lawyers would be void.

    I suspect that laws against the unauthorized practice of law do not cover what I do. It would be nonsensical to insist that no one can interpret a rental car contract for someone else unless they’re a member of the bar in the state the contract was written. Nor does it make any sense to prohibit employees from researching statutes or writing contracts for their employers.

  16. Dan Burk on June 22, 2004 at 12:20 pm

    Matt — I’ll think you’ll find the link posted by Scott is useful on your question. The Utah rules are (like most states) taken almost verbatim from the Model Rules. You can always represent yourself. Griffith’s work for BYU was not representing himself, or even a business that he owns. The question is whether via conduct or other representations you hold yourself out to others as a lawyer. By all indications, Griffith did.

  17. lyle on June 22, 2004 at 1:19 pm

    Dan has written a most excellent piece. Yet, it doesn’t speak to the fitness of Tom for the federal judiciary. It speaks to the evils of government intervention in the economy & the monopoly of law that has been imposed by the state.

    The results? Good men who get tarred for failure to pay monopolistic bar dues & the supply of lawyers is kept too low, resulting in higher prices that price legal advice out of the range of all but those who are middle-upper class (i.e. wealthy & up) & the destitute (who get free aid, sorta).

    Abolish the bar. Down with monopolies.

  18. jeremobi on June 22, 2004 at 1:37 pm

    “It speaks to the evils of government intervention in the economy & the monopoly of law that has been imposed by the state.”

    Surely you must be joking. Are you suggesting Griffith failed to pay dues as a form of protest against the state?

  19. lyle on June 22, 2004 at 1:40 pm

    no; although it would certainly be more principled & respectable than mere forgetfullness.

    twas just my personal dislike of the bar & almost everything it stands for.

  20. Dan Burk on June 23, 2004 at 6:30 pm

    BTW, Lyle has pointed out on a different thread statements by Utah bar officials that Griffith committed no violation so long as he was working with subordinates who were admitted to the bar.

    It’s quite fascinating to hear that partners in Utah law firms don’t need to be admitted to practice so long as the firm has some junior associates who are.

  21. obi-wan on June 23, 2004 at 6:46 pm

    Why do I have the feeling that if it were some poor non-member Democrat practicing in Utah, who failed to pay his dues and didn’t sit for the bar, that the Bar Association might not be so accommodating about just working with a licensed subordinate?

  22. lyle on June 23, 2004 at 6:50 pm

    Obi-wan: You might be right (no pun intended ;), but…I would hope not & would be the first to fight against such viewpoint discrimination.

    However…Sen. Hatch did hold up Judge Paez nomination to the Ninth Circuit for an awfully long time…