There was an interesting article at law.com today on Connecticut's latest antitrust violation concerning lawyers.
Since there's no wiggle room in the law that prohibits out-of-state lawyers from practicing in Connecticut, the New York and Washington, D.C., superstars just picked by Connecticut Gov. John G. Rowland and the legislative panel considering his impeachment may be in a bind. According to six Connecticut ethics experts, the state statute on the unauthorized practice of law is simple and unforgiving: Without a Connecticut license, anyone practicing law in the state is engaged in the unauthorized practice of law. Although misdemeanor criminal penalties were dropped for in-house lawyers, the harshly-worded statute presents a potential problem for others.
On Feb. 11, Rowland's office announced he had hired Seth P. Waxman, of Washington's Wilmer Cutler Pickering. Waxman, a former solicitor general with stellar credentials, is only admitted to practice in the District of Columbia. Later that day, the Connecticut General Assembly's Joint Committee on Inquiry chose Steven F. Reich, of Manatt, Phelps & Phillips in New York, who is admitted in New York and D.C. If either the legislative impeachment panel or the governor were involved in a court case, Reich or Waxman could doubtlessly be admitted pro hac vice, noted one Hartford-based ethics lawyer. "The problem is, there's no court case going on here. And it's not clear that [Waxman or Reich] are planning to meaningfully associate with Connecticut counsel in any way," he said, wishing to remain anonymous.
Thomas B. Scheffey, "Do UPL Restrictions Apply to Impeachment Lawyers?," Connecticut Law Tribune (17 Feb. 2004) (fake paragraphing removed for clarity).
The Connecticut bar is one of the worst offenders in terms of antitrust violations. The excuse that "this isn't antitrust, it's ensuring to the public that their lawyers are qualified" is disproven by the high concentration of a single industry (insurance) in the state and corresponding specialization in the bar. This really isn't about unauthorized practice of law; it is about multijurisdictional practice. Leaders in the Connecticut bar have explicitly opposed opening up the rules to allow out-of-state lawyers to perform legal functions precisely because they're afraid that their fees might be affected by out-of-state lawyers working for lower prices. Of course, if that specialization is really worth anything, they'll still be able to demand higher fees.
Leaving aside the "full faith and credit clause" issue, the Attorney General should go after the bar on antitrust grounds. Wait a minuteif there is one thing that lawyers do in absolute lockstep, it's protect their gravy trains. Nonetheless, this is one of the best arguments I've yet seen for licensing lawyers nationally instead of state by stateeven though it's not put in those terms.