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A Judicial Nominee Practiced Law Without A License

Discussions about the nomination and confirmation of federal judges usually center around political ideology, judicial temperament, past opinions, and the like. Those discussions assume that the nominee has certain other characteristics needed by a federal judge. Among those other characteristics are respect for the courts and the legal profession, an adherence to the requirements of the law, and sufficient attention to detail to make sure that things are done correctly.

Occasionally, a nominee comes along who has such a deficiency in the latter group of traits that it is not necessary to inquire into the former.

Let me introduce you to Thomas B. Griffith. Griffith is President Bush’s nominee to the United States Circuit Court of Appeal for the D.C. Circuit. The D.C. Circuit is perhaps the second most important court in the country after the Supreme Court. Because it is located in D.C., it hears many high profile cases, many with constitutional implications. Some people see serving on the D. C. Circuit Court as a steppingstone to the Supreme Court.

I know nothing about Griffith’s political ideology or judicial temperament. I do know that he has no business being confirmed to the bench because he has demonstrated a lack of respect for the courts and the profession, he has violated the law and ethical rules, and he has ignored the details necessary to be a lawyer, much less a judge.

For at least four years, in two jurisdictions, Mr. Griffith practiced law without a license. That is a violation of law as well as ethics. In my mind, that disqualifies him for a position on the second most important court in the land.

Griffith’s Department of Justice bio is here and his resume is here (links via Tapped).

Mr. Griffith’s resume shows that from 2000 through the present, he has been the General Counsel to Brigham Young University. That job involved the practice of law. The Washington Post reports:

According to Brigham Young's Web site, Griffith "is responsible for advising the Administration on all legal matters pertaining to the University. . . .

The General Counsel directs and manages all litigation involving the University."
On his nomination questionnaire, in an answer about the "general nature of [his] law practice," Griffith lists that he has worked on "higher education law" from 2000 to the present.

I went to the Utah State Bar Membership page. That page allows one “to locate a current or past member of the Utah State Bar.” I searched for “Griffith” and found several entries but none for a Thomas B. Griffith. It does not appear that Mr. Griffin ever took the trouble to gain admittance to the Utah bar despite practicing law there for five years.

Tapped points us to a Washington Post story from last summer that explains how that came about:

Thomas B. Griffith, President Bush's nominee for the federal appeals court in Washington, has been practicing law in Utah without a state law license for the past four years, according to Utah state officials.

Griffith, the general counsel for Brigham Young University since August 2000, had previously failed to renew his law license in Washington for three years while he was a lawyer based in the District. It was a mistake he attributed to an oversight by his law firm's staff. But that lapse in his D.C. license, reported earlier this month by The Washington Post, subsequently prevented Griffith from receiving a law license in Utah when he moved there.

Under Utah law, Griffith's only option for obtaining the state license was to take and pass the state bar exam, an arduous test that lawyers try to take only once.

He applied to sit for the exam, but never took it, Utah bar officials confirm…
Utah State Bar rules require all lawyers practicing law in the state to have a Utah law license. There is no general exception for general counsels or corporate counsels. Lawyers who practice only federal law or whose work is solely administrative can avoid the requirement in some cases…

Griffith discovered in November 2001, a year after he joined Brigham Young that his District law license had lapsed several years earlier, in 1998, for failure to pay his dues. He immediately paid his dues and renewed his D.C. license, Nowacki said.

Mr. Griffin practiced law without a license for three years in Washington. He practiced in Utah without a license in any jurisdiction for a year. Even after discovering that he was practicing in Utah without a license, he never decided to take the bar examination to acquire a Utah license and just continued to practice law in Utah for four more years and continues to do so today.

At the time Griffith “discovered” that he was practicing in Utah without a license, Utah Code Annotated § 78-9-101 was in effect. That code section provides:

Practicing law without a license prohibited -- Exceptions.

(1) Unless otherwise provided by law, a person may not practice law or assume to act or hold himself out to the public as a person qualified to practice law within this state if he:

(a) is not admitted and licensed to practice law within this state;

(b) has been disbarred or suspended from the practiced of law; or

(c) is prohibited from doing so by court order entered pursuant to the courts' inherent powers or published court rule.

(2) The prohibition against the practice of law in Subsection (1) shall be enforced by any civil action or proceedings instituted by the Board of Commissioners of the Utah State Bar.

(3) Nothing in this section shall prohibit a person from personally and fully representing his own interests in a cause to which he is a party in his own right and not as an assignee.

Ignoring that law demonstrates a lack of respect for the courts and the legal profession that should be required of nominees to the Federal bench.

Mr. Griffith’s excuse for engaging in the unauthorixed practice of law in D.C. is that he lost his D.C. license because of an oversight by the staff of his law firm. That does not help his cause. It is clear that Griffith violated D.C. Bar rules. Rule 49 (a) states:

General Rule. 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.

The D.C. bar publishes an advisory for lawyers practicing in the District. That advisory notes:

[T]he failure to pay Bar dues, particularly if swiftly remedied to avoid the unauthorized practice of law, may be viewed as a relatively minor disciplinary infraction, but the length of time that the lawyer neglects to pay dues may cause a simple failure to ripen into a more serious disciplinary matter.

Griffith failed to maintain his D.C. license for three years. That exhibits such a disregard for the rules and such a lack of attention to detail as to disqualify him from the bench.

Griffith’s unauthorized practice of law in Utah is a serious matter. Two Georgia lawyers were indicted for practicing law in North Carolina without a license. In that case, two Atlanta lawyers helped a North Carolina college investigate a grade fixing scandal in its basketball program. The lawyers were licensed in Georgia but not in North Carolina.

Griffith assisted Brigham Young in its legal work and was not only not licensed in Utah, but until 2001, he was not licensed in any jurisdiction. Griffith’s conduct is at least as bad as the two lawyers who were indicted on criminal charges.

With regard to the time Griffith was engaged in the unauthorized practice of law in D.C., that too is a serious matter. It is a violation of Rule 5.5(a) of the District of Columbia Rules of Professional Conduct and is a breach of ethics. The D.C. bar advisory notes:

In fact, in In re Kennedy, the court found an ethical violation and imposed discipline where an administratively suspended lawyer was found to be practicing law in the District of Columbia.

Mr. Griffith has acted unethically and illegally. His resume notes that he was first admitted to the bar in North Carolina in 1985. Of the 20 years that he has practiced law, four of those years, or 20%, were done illegally.

Mr. Griffith has demonstrated his lack of respect for the courts, the law, and the legal profession. His failure to maintain his D.C. license shows a lack of attention to detail and a lack of respect for the rules governing lawyers. Even more disturbing is that once Griffith discovered that he was practicing law in Utah without a license, he never chose to take the bar exam to acquire a license. That shows a degree of arrogance that also disqualifies him for the bench.

Mr. Griffith should not be confirmed.

(Note: This is a significantly and substantively edited version of one I posted last night and then removed).

Posted by Dwight Meredith at March 8, 2005 01:13 PM | TrackBack