Monday, April 23, 2007

Hayward on Election Day Volunteerism as Unauthorized Practice of Law

Allison Hayward (George Mason, right) has posted Election Day at the Bar on SSRN.  Here is the abstract:Hayward

Since the 2000 election, national parties and a number of special interest groups have changed how they "lawyer up" for election day. They recruit nationally for attorneys to work in whatever "hot spots" develop. Yet in key jurisdictions their activities may amount to the unauthorized practice of law ("UPL"). UPL discipline of these attorneys may seem unlikely so long as all participants in elections desire to mobilize these volunteers. Yet enforcement could be triggered once local interests who rely on suppression or fraud recognize that outside volunteers will cause them to lose their edge. Or an isolated instance of selective enforcement in one jurisdiction (perhaps a place that allows private actions to enforce professional ethics rules) could inspire actions elsewhere. 

As in so many other aspects of American political life, volunteers are valuable and necessary here. By imposing uneven jurisdiction-by-jurisdiction standards, state-based UPL rules confuse participants. They also discourage the development of trained national election-day experts, skilled in the federal rules applicable to elections and voting, familiar with the kinds of issues that arise on election day, and – perhaps most overlooked – with a stake in the smooth functioning of American elections over time. In an area of increasing federal concern, it makes sense to move away from relying on election-day lawyering from local partisan non-specialists and regional political supplicants. 

Can the situation be improved, or are these vagaries the necessary consequence of an intransigently parochial election – and ethics – regime? While a national ethical code would alleviate the disparities, for many reasons that particular reform is unlikely. This paper suggests a much more modest proposal, through established ethics reform channels (i.e. the American Bar Association) that would not just clarify the position of election-day volunteer attorneys, but insulate other very limited and casual "practice" situations from professional discipline. Without some change, the enforcement of UPL rules against election-day attorneys would seem to be a matter of time. Then the following chill on participation will be felt everywhere and ultimately voters will lose the benefit of this activity.

Interesting subject.  I'd assume that there are lots of activities that are not legal in nature - poll watching, etc., but that giving advice as to the legal significance of circumstances that arise in the course of the day would be practicing election law.  Then the question would be whether one of the exceptions applies.

[Jeff Lipshaw]

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