Friday, November 24, 2006

And As Long As We're Talking About Bar Membership, What About Law Professors?

Posted by Jeff Lipshaw

My wife happened to ask me this evening whether one had to be admitted as a member of the bar inJustice_scales04_small the state in which one is teaching as a law professor (and presumably not consulting or doing anything else that looks like law practice).  This was coincidental, and not in any way related, to today's earlier post on the bar admissions status of in-house counsel.

Never let it be said that we at LPB can't dash off the occasional original empirical study.  On the question whether a law professor needs to be admitted to the bar of a state in which he or she is teaching, the answer is:  we aren't sure.   But we think we may have Sardine ripped the lid off a can of pungent sardines.

Fortunately, the ABA assembles definitions of the "practice of law" from the states, territories and the District of Columbia, as well as data on the prerequisites for admission by motion.

After spending countless minutes (actually about forty-five, if you don't count the time we were out walking the dog) researching this issue, here are the preliminary results.  Most state law definitions of the practice of law are a variant, codified or not codified, in more detail or less, of the ABA-recommended definition:  "the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity."

But does that include teaching law in a law school?  On quick review of the ABA materials, it appears that only two jurisdictions hit the issue straight on.  The District of Columbia says "no."  The comment to its court rule (Court Rules of the District of Columbia Court of Appeals Title VI. General Provisions Rule 49), says "a law professor instructing a class in the application of law to a particular real situation is not engaged in the practice of law because she is not undertaking to provide advice or services for one or more clients as to their legal interests."  But Colorado says "yes."  Colorado Court Rule, Chapter 18, Rule 201.3(2) states "For purposes of this rule, "practice of law" means: . . . (e) employment as a teacher of law at a law school approved by the American Bar Association throughout the applicant's employment."

This would suggest that Colorado is the lone outlier were it not for the following oddity from the admission on motion data.  There are thirty-two jurisdictions that admit lawyers by motion, and in all of them except D.C., South Dakota, Vermont, and Virginia, having taught law counts as "practice" for the purpose of having had enough years of practice to qualify for admission on motion.  Then we have the "law professor special status" states: 

    - If you've taught law in Alabama for three years or New Jersey for five, you can then be admitted in those respective states on motion, as long as you've been admitted in another state already (thus implicitly conceding that teaching is not practicing because presumably you can teach in Alabama or New Jersey without a license).

    - If you are hired as a law professor at the University of Hawaii Law School or the Boyd Law School at UNLV, you can be admitted to the bar of those states on motion (the notes here don't indicate that Nevada requires a prior admission!).

    - In Ohio, full-time teaching at an ABA-approved law school, whether in or outside of Ohio, may satisfy the past practice requirement (I am still searching to see if the may includes the discretion to make the decision based on average faculty brain volume.)

Here are questions for further study:

1.  Assuming that teaching either is practice, or counts as practice for purposes of the number of years you have been practicing for admission on motion, does it matter whether your approach to teaching and research is or has been so theoretical as not to have any arguable connection to the practice of law?

Judge01_small 2.  In Colorado, is it a defense to an unauthorized practice charge to claim you are teaching "interdisciplinary studies" when in fact you mentioned the Coase Theorem twice during your Secured Transactions course?

3.  What is the status of legal historians, and in particular, those members of classical studies departments who specialize in Roman law?

4.  Is there an exception, arising out of the First Amendment, for the teaching of Talmudic or canon law?

5.  And what of those poor souls who happen to be on law faculties but do not have a law degree?

All I can say is that there is a benefit to not being a member of the bar in the jurisdiction where you teach.  If you dread the following lead-in on an e-mail or a phone call:  "Professor, this actually doesn't have anything to do with class.  Um, it's a personal problem.  I sure hope you can help.  My [landlord][boyfriend][girlfriend][parole officer][marriage counselor] [shrink] told me yesterday that [he][she][it] wanted to [evict][drop][kill][marry][prosecute] [sedate] me. . . ."  And you get to say, with a sigh of relief, "I'm sorry, but I'm not admitted to practice here."

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