21 June 2004


I am not now, and never have been, a fan of state regulation of the professions, particularly the legal and medical professions. Particularly as professionals move more often—no longer forty years with the same firm or hospital—it is becoming increasingly difficult to justify. Without completely defending the conduct at issue, consider what has happened to Thomas B. Griffith, a nominee to the US Court of Appeals for the District of Columbia. (Note: I am opposed to Mr. Griffith's nomination for other reasons.)

While it's clear that, in at least a technical sense, Mr. Griffith did indeed practice law without a license, the idiocy of the state-to-state transfer (not to mention the idiocy of the bar exam) made things much, much worse. He was responsible for keeping his license current. That by itself should be sufficient to bar his confirmation. But the problems with transferring licenses while also transferring practices—particularly to a primarily managerial position like general counsel of a university; while it does require legal savvy, it's more about politics and staff management than about reviewing contracts or employment practices—make things much less satisfactory.

In other words, this was an accident waiting to happen. If this had been an industrial site, the employer would be rapped on the knuckles—hard—for work conditions that encourage employee failures. This is in addition to the refusal of the "employer" to effectively control the behavior of its "employees"… but I've remarked on that before at length. Mr. Griffith's conduct was not acceptable, and should not be excused; but it points out misconduct by the Utah State Bar. One might ask whether the Full Faith and Credit Clause requires all states to accept bar qualifications from all other states; but, better yet, one might ask whether we would all be better served with a national system of bar qualification and discipline. Too, if there is one thing that one can absolutely say about the contemporary practice of law, it is that it implicates interstate commerce.