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Thomas B. Griffith and Rule 49

He Practiced Law Without a License, Now He’s a Federal Appeals Court Judge

by CHRISTOPHER BRAUCHLI

One of the first things Thomas B. Griffith will want to do is convince his colleagues of the importance of changing their Rule 49. It shouldn’t be that hard since he’s now a member of that court and can tell his colleagues from personal experience what a useless rule it is. And it only makes sense that he work to get it changed since it was a rule he flaunted during the time he practiced in that jurisdiction and he must be thanking his lucky stars that he didn’t get caught.

Mr. Griffith serves to remind us that if you are sufficiently conservative, a lack of integrity or respect for the law is no hindrance to advancement in the Bush administration. That is the lesson taught by Thomas B. Griffith’s confirmation to serve on the federal court of appeals for the District of Columbia. The fact that he was Mr. Bush’s second choice does not make the lesson less painful.

The first choice was Miguel Estrada. Mr. Estrada’s confirmation was filibustered and in 2003 he dropped out of contention. He wasn’t filibustered because he lacked the ethical qualities that the legal profession expects of its members even when they are as important as Thomas B. Griffith. His confirmation was filibustered because his views were unknown but believed to be out of the legal mainstream. Instead of proving his critics wrong he stonewalled them. He refused to discuss his views or provide samples of his legal writing that might have demonstrated his legal philosophy and proved his critics wrong. As a result his nomination stalled and, ultimately, he withdrew his name.

Whether or not the country and the federal bench were well served by his withdrawal is impossible to know. What is known is that the man who has been elevated in his place is a man who, had the facts about his career been known by appropriate authorities before he was nominated, might have faced severe discipline for his flagrant disregard of the professional rules that govern the conduct of lawyers in the District of Columbia and Utah.

Rule 49, of which Mr. Griffith was contemptuous, is a rule of the U.S. Court of Appeals of the District of Columbia. It says:

"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."

None of the exceptions applies to Mr. Griffith. Mr. Griffith found the rule quaint and chose to ignore it. He practiced law for three years in that jurisdiction without the required license. Had the licensing authorities known of his transgression he would have faced discipline. Happily for him, he left the jurisdiction before anyone noticed that he didn’t find the court’s rules to his liking.

Furthermore he blamed his staff–saying in effect that he was much too important to attend to such trivia and his staff should have insured his compliance with applicable rules.

Having successfully flaunted the rules of the court on which he now serves he moved to Utah to became chief legal counsel for the University of Utah. He served in that capacity for four years. Acting as legal counsel for the university of Utah is considered practicing law in Utah.

Utah, like the District of Columbia has a rule against practicing law without a license. Rule 1.0 of Chapter 13a of the Rules of Professional Conduct of the State of Utah provides:

"Except as set forth in subsection (c) of the Rule, only persons who are active, licensed members of the Utah State Bar in good standing may engage in the practice of law in Utah."

It did not include the phrase "unless you are really important or are called Thomas B. Griffith." That would probably have surprised Mr. Griffith.

It didn’t matter. No one noticed that he was again ignoring the rules imposed by the court and no disciplinary proceedings were commenced.

The one thing we have learned from Mr. Griffith’s conduct is that rules don’t apply to him. As a federal judge he will be beholden to no one. He will like that.

Notwithstanding Mr. Griffith’s example, if any of my readers were contemplating practicing law in the District of Columbia the reader would be well advised to follow the rules even though one of the sitting judges thought himself above them. Lady Luck might not smile on all who thus transgress.

Promotion to a federal court is even less likely to follow unless, of course, George W. Bush is making the appointment. In the Bush White House conservative philosophy trumps morality and ethics every time.

Mr. Griffith is just the most recent example of that.

CHRISTOPHER BRAUCHLI is a lawyer and writer living in Boulder, Colorado. He can be reached at: 56@post.harvard.edu