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May|June 2005
Double Daylight By Margot Sanger-Katz
Made in India By Daniel Brook
Sleepstalking By Aaron Dalton
Rodzilla By Suzanne Sataline
Old Yeller By Suzanne Snider
Cases & Controversies
The Prudent Jurist By William H. Simon

The Prudent Jurist

When news broke that a North Carolina university had fixed the grades of a basketball star, the school's president called in lawyers from an Atlanta firm for advice. A local court later indicted two of the lawyers, charging them with illegally practicing law without state bar membership. Should lawyers be prosecuted for crossing state lines?

By William H. Simon

IT IS HARD TO DENY THAT THE GEORGIA LAWYERS were practicing law within the state of North Carolina, and North Carolina, like most other states, has a statute that prohibits lawyers from practicing without local bar membership. Nevertheless, the prosecution has shocked many lawyers because these statutes are almost never enforced against out-of-state lawyers. If consistently enforced, the statutes would put most business lawyers out of work.

North Carolina says its law is meant to protect consumers and to ensure that lawyers in its state adequately know its laws. But this justification doesn't hold much water. Most bar exams, including North Carolina's, are national in scope, and, as a result, a lawyer can become a member of virtually any state's bar without knowing much of its law at all.

As a practical matter, business lawyers advise clients on out-of-state law all the time—they just do it from afar. Most Delaware corporate law experts reside in New York. Bar membership statutes target lawyers based on their location, not the content of their advice, and it seems arbitrary to punish out-of-state lawyers who practice North Carolina law in North Carolina, yet allow them to practice North Carolina law in Georgia.

So why do states enact and enforce these statutes? The most plausible explanation is that they are protecting local lawyers from competition. This is not, however, an explanation the states will admit to. Under the United States Constitution, it isn't a legitimate basis for regulation.

A system of bar approval modeled on the driver's license would make a lot more sense for most types of law practiced these days. A license from any state permits you to drive in all the others, but still shows what state gave it to you. If clients agree with North Carolina that its lawyers are best for North Carolina problems, they might well prefer lawyers licensed there. Otherwise, let the market rule.

The Maryland Court of Appeals recently reversed the conviction of a woman who had been found guilty of conspiring to murder her husband. She had discussed the plot in front of her divorce lawyer, who reported it to the trial court. The prosecution then used the lawyer's testimony against the woman at the ensuing criminal trial. Can lawyers be turned into prosecution witnesses against their clients?

THE LAWYER ACTED APPROPRIATELY in blowing the whistle on the client to save lives. (She had also threatened to kill one of her children.) Whether the prosecution should have been allowed to use his testimony is a harder question.

Evidence law doesn't protect attorney-client communications where the client seeks help committing a crime, but it does where she seeks legal advice. The client here was not asking her lawyer to aid her with the murder plot, and her statements probably were relevant to issues in the divorce. Erring on the side of excluding evidence, the appeals court decided not to let prosecutors use the client's comment.

The court's reasoning is not very convincing, however. The rationale for keeping attorney-client conversations confidential is to encourage clients to seek legal advice—and, hence, to give lawyers an opportunity to encourage them to comply with the law. The court decided that the whistle-blowing was O.K. because it potentially saved lives, but the testimony crossed the line. It is unlikely that clients in Maryland really understand these subtleties. Once the court permitted counsel to blow the whistle, little was gained by excluding his testimony.

Though the degree most law schools award is called the Juris Doctor, bar assciations have discouraged lawyers from referring to themselves as "doctor." The Texas bar recently reversed its policy on this issue, freeing lawyers to assume the title as long as they don't suggest they are medical doctors when they do so. Should other states follow suit?

LAWYERS WITH J.D.'S NEED NOT WAIT for permission from their state bar to start calling themselves "doctor." The First Amendment permits regulation of such self-description only when there is a "substantial governmental interest," and most courts would have a hard time believing that clients will mistake a lawyer for a medical doctor.

Why would a bar concern itself with this issue? Most likely because older lawyers, who graduated when American law schools gave L.L.B.'s (Legum Baccalaureus), which are considered "bachelor" rather than "doctor" degrees, feel competitively disadvantaged. But preventing this type of slight is not a legitimate basis for regulation.

Nevertheless, it seems unlikely that many lawyer-doctors will come forward. The use of "doctor" by nonmedical personnel tends to signal pretension and status anxiety more than learning and accomplishment.

William H. Simon teaches professional responsibility at Columbia Law School and is a contributing editor of Legal Affairs.

Questions for the Prudent Jurist can be sent to [email protected].

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