Breaking the Law
Thomas B. Griffith, President Bush's nominee for the federal appeals court in Washington, has for years been practicing law without a license. Wampum has more about the man here and here.
posted by Management at 9:50 PM
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Judicial Nominee Practiced Law Without License in Utah
By Carol D. Leonnig
Washington Post Staff Writer
Monday, June 21, 2004; Page A01
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 has declined to discuss the matter, which is expected to be a subject of his nomination hearings tentatively scheduled for next week. But a Justice Department spokesman said Friday that Griffith sought advice from Utah State Bar officials when he inquired last year about obtaining a license, and followed their suggestions for avoiding any ethical missteps.
"The Utah State Bar advised him that to the extent that his duties as general counsel involved giving legal advice, he ought to closely associate himself with a Utah bar member," Justice spokesman John Nowacki said. "It has been Mr. Griffith's practice to closely associate himself with a Utah bar member when giving legal advice."
Nowacki declined to comment on whether the state bar advised Griffith to take the bar exam. According to sources familiar with a letter the state bar wrote to Griffith last year, bar officials recommended that Griffith take the exam, and work closely with a Utah bar member while his license application was pending.
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. But for the first year in Utah, he was advising Brigham Young, a Mormon university in Provo, without a current law license from any state.
A lawyer who specializes in legal ethics said Griffith's two licensing lapses should disqualify him from a lifetime appointment to one of the nation's most important federal benches, second only to the Supreme Court.
"This moves it for me from the realm of negligence to the realm of willfulness," said Mark Foster, a Zuckerman Spaeder attorney who represents lawyers in ethics matters. "People who thumb their noses at the rules of the bar shouldn't be judges."
One veteran law professor said the two incidents raised significant questions, but that "in and of itself, it is not disabling."
"It begins to look like a pattern of carelessness," said Paul Rothstein, a law professor at Georgetown University Law School. "It should cause your red flags to go up to see if there are other signs of carelessness."
Several lawyers from respected D.C. law firms, and former U.S. Court of Appeals for the D.C. Circuit chief judge Abner Mikva, have written public letters in defense of Griffith's D.C. licensing lapse, calling it a minor mistake. "In our opinion, this matter does not raise a question concerning Tom's fitness to serve on the bench," wrote a group of Williams & Connolly lawyers.
Griffith, 55, is a member of the Republican National Lawyers Association and was the lead counsel for the Senate during the impeachment trial of President Bill Clinton. Married and the father of six, he is a former partner at the D.C. firm of Wiley Rein & Fielding, whose partners served in prominent positions in past Republican administrations.
Most lawyers arriving in Utah are allowed to get reciprocal state licenses, but Griffith did not meet the Utah State Bar requirement that he be a lawyer in good standing in his previous state for three of the previous four years.
Joni Seko, deputy general counsel for the Utah State Bar, said most general counsels overseeing legal work for a university, organization or corporation are required to have licenses because they offer legal advice on a range of subjects, including state law.
"It would surprise me that a general counsel would not get involved in those [state] decisions," she said. "Even in a management capacity, that person would likely have to sign off on major contracts. To do that, you engage in the practice of state law."
Katherine Fox, the bar's general counsel, declined to comment on Griffith's specific situation. She said typically she would ask a general counsel moving into the state about the nature of his work and, if it were broad in nature, she would advise that he obtain a state license. "It is just too easy to cross the line" from managing to providing legal services, she said.
"Unless they were doing things in which they were never practicing law, they need to get licensed," she said.
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.
A review of state bar membership shows many general counsels for other universities in Utah have their state's bar license. That includes John K. Morris of the University of Utah, Craig J. Simper of Utah State University, and Kelly De Hill of Westminster College. Griffith's predecessor at Brigham Young, Eugene H. Bramhall, has been a member of the Utah bar since 1981.
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).
Thomas B. Griffith Update
You may recall Thomas B. Griffith as the Bush nominee for the D.C. Circuit Court of Appeal who practiced law without a license.
According to a local NBC affiliate, he had a “contentious confirmation hearing” earlier this week.
Griffith serves as an in-house counsel for Brigham Young University in Utah, but he's never passed the bar in that state, which drew some controversy.
Griffith told the Senate committee that Utah law does not require him to be a member of the state bar, as long as he is closely associated with members of the Utah bar and as long as he doesn't make any court appearances.
That, of course, does not explain why Griffith practiced law in the District of Columbia without a license for three years. It also does not explain why he practiced law in Utah for a year when he was not licensed in any jurisdiction whatsoever. Does Utah permit that as long as the non-lawyer “closely associated with members of the Utah bar?”
Whether or not Griffith skirted the requirements of Utah law for the last four years he was there, he violated D.C. rules and Utah law for the previous four years.
One would not expect a person nominated to the bench of the second most important court in the land to really be so afraid that he would flunk the Utah bar exam.
Another Update:
The New York Times notices that Griffith was practicing without a license.
In addition to prcticing without a license in two jurisdictions, Griffith gave false information to the Utah bar. As the Washington Post reported last November:
Thomas B. Griffith, President Bush's nominee to the U.S. Court of Appeals for the District of Columbia Circuit, appeared to provide inaccurate information to Utah bar officials about his legal work and lapses in obtaining law licenses over the past year, according to documents released yesterday at his nomination hearing....
Even as Griffith defended his record yesterday, the new documents added to that controversy.
They show Griffith reported to Utah state bar officials last year that his law license had never been suspended. It had been suspended from 1998 to 2001. He also told the state bar that he relied on his D.C. license to practice law in Utah.
As I have previously noted, the Utah statute in effect when Griffith began practicing law there specifically prohibited the practice of law by anyone who had a suspended law license.
The Salt Lake City Tribune weighs in:
A clerical oversight should not disqualify someone from being a judge. But this looks like more than that. It looks like carelessness, or worse, arrogance.
A license is the essence of being a professional. Plumbers and teachers know that, and so should lawyers.
Playing by the rules is what the law is about. Any lawyer who does not exemplify that concept in his own behavior should not be on the bench, especially one as important as the appellate court in D.C.
Exactly so.
June 21, 2004
Thomas B. Griffith: Another Fine Nominee
By way of Discourse.net, we find the tragic tale of Thomas B. Griffith, a George W. Bush nominee to the DC Circuit Court of Appeals
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.
[...]
"The Utah State Bar advised him that to the extent that his duties as general counsel involved giving legal advice, he ought to closely associate himself with a Utah bar member," Justice spokesman John Nowacki said. "It has been Mr. Griffith's practice to closely associate himself with a Utah bar member when giving legal advice."
Nowacki declined to comment on whether the state bar advised Griffith to take the bar exam. According to sources familiar with a letter the state bar wrote to Griffith last year, bar officials recommended that Griffith take the exam, and work closely with a Utah bar member while his license application was pending.
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. But for the first year in Utah, he was advising Brigham Young, a Mormon university in Provo, without a current law license from any state.
[...]
Griffith, 55, is a member of the Republican National Lawyers Association and was the lead counsel for the Senate during the impeachment trial of President Bill Clinton. Married and the father of six, he is a former partner at the D.C. firm of Wiley Rein & Fielding, whose partners served in prominent positions in past Republican administrations.
Here are a few particularly striking things about this story:
1) Griffith didn't know for three years that his DC bar membership had lapsed. Three years? Three years? And then he blamed it on a staff oversight? I guess the Republicans really are the party of "personal responsibility" ... for the peons. But the thing is, as an attorney, it is his personal responsibility to ensure that he is licensed to practice. It's not anyone else's responsibility. Griffith blew it, and then he made it worse by ignoring his responsibility to the people of Utah to ensure that he was licensed to practice there. The obligation runs from an attorney to the people of the state where he or she practices. That's the point of having a bar exam and continuing legal education -- to protect the public. But I guess those rules are just for the little people.
2) The DC Circuit Court The DC Court of Appeals handles, among other things, patent infringement cases, administrative law cases, and (ironically) disciplinary proceedings for the District of Columbia Bar. These kinds of cases are complex. They require close parsing of densely written regulations and briefs, and attention to detail. And this is the court to which George W. Bush wants to appoint Griffith, who can't be bothered to even notice the expiration date on his bar membership card?
3) If you look at the timeline, you'll note that Griffith's DC bar membership expired in 1998, and that he served as chief counsel to the Senate in the impeachment trial of Bill Clinton. That second fact suggests to me that his nomination is a payoff for that service, but even more interesting (and morbidly amusing) is the fact that the impeachment trial took place in January and February of 1999. So he was advising the Senate on the most serious of constitutional matters without a license to practice law.
I remind the reader again: lifetime appointment.
June 21, 2004 at 10:46 AM | Permalink
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