I happen to think the bar exam is a little silly. I happen to think that the division of the Union into 54 or more jurisdictions that keep out lawyers from elsewhere is anti-competitive. I also understand the rules we have are formalities I better take seriously or I am in trouble, and make sure to renew my NY and DC bar memberships as soon as the notices come in — just to make sure I don't misplace them.
Looks like DC Circuit nominee Thomas B. Griffith didn't get that last part, leading the Washington Post to report that Judicial Nominee Practiced Law Without License in Utah.
Fundamentally, this is just careless. But it's the sort of carelessness in a lawyer, given our existing rules, that rises to pretty serious negligence. It suggests corner-cutting, or an attitude of being above the rules, or just general disorganization … any of which I think is sufficient reason to reject even an otherwise qualified nominee. Furthermore, practicing law without a license is usually a fairly serious offense in most states. In this case, though, there may be a dispute about the extent to which Mr. Griffith actually engaged in authorized practice or instead managed to cover himself with local counsel.
Unauthorized practice is a subject near and dear to my heart, as I practiced international law for three years in the London office of a US firm, without an English law degree and without being either a solicitor or barrister. Unlike the US, the UK allows that — the offense there is holding yourself out as something you are not. But even so, to the great amusement of my English colleagues, I refused to sign any letters that contained opinions on English law, even if I had done all the research and drafted them. My English supervisors signed them, laughing all the while at my American formalism and punctilio.
Of course, Republicans, who preached so much about the need for exacting regard for state formalies during the recount period in the last Presidential election, will undoubtedly be the first to take a similar approach, and to say that this nomination should not go forward.
(And I have a bridge to sell you.)