I have experienced several events that made me wonder if New York state courts understand and correctly apply what exactly constitutes the practice of law in New York. I doubt that courts even know what it is, from those episodes that I witnessed and am going to describe below. It appears that, like with obscenity, "you know it when you see it", which to me is an unacceptable definition of something that can lead a person to a felony charge if not complied with.
Episode No. 1
I have been to a law school graduation in May of 2013 where New York State Chief Judge Jonathan Lippman gave a speech to the law school graduates.
Throughout his speech, Judge Lippman called law school graduates as "lawyers". Judge Lippman's speeches at law school graduations are widely available on YouTube, and in those speeches he always addresses law school graduates as "lawyers".
In December of 2013, Judge Lippman said the same to another group of law graduates. Watch the video of Judge Lippman's commencement speech, where at about the 4th minute Judge Lippman says: "Graduates, you can now call yourself lawyers". Really? Before taking and passing the bar, being approved by the character committees and getting a law license? And that is from the lips of the Chief Judge of the state of New York?
Yet, the law in New York is that you can only be a "lawyer" when you, first, took a bar examination which the law school graduates did not yet take, when you've passed through the character committee, which law school graduates did not yet do, and when you are licensed to practice law, which obviously does not occur on graduation from law school.
Thus, the Chief Judge of New York State Jonathan Lippman addressed as "lawyers" people who were, as a matter of law, not lawyers.
Moreover, when you are not a lawyer as a matter of law, and you represent yourself as a lawyer, you can be charged with a felony.
Does Judge Lippman know the law? Why would he mislead the new law graduates this way? What kind of example does Judge Lippman set to those young people? That a judge of high enough rank can say anything from a pulpit and it will be all right and the captive audience should nod and be happy with what the judge have said and consider it the truth and the law?
Episode No. 2
On April 15, 2014 the New York Supreme Court, Appellate Division Third Judicial Department, has issued a press release announcing appointment of three new justices to the court.
In the press-release, there were short biographies and description of careers of the three new justices.
Provided below is excerpt from the press-release about the new Justice Christine Clark:
The press-release says that "Justice Clark began her legal career in 1995 with the law firm of Dreyer Boyajian LLP, first as a law clerk"...
Now wait a second.
New York State attorney directory shows that Justice Clark was admitted to practice law in 1997.
Dreyer Boyajian LLP where Judge Clark "started her legal career" as a "law clerk" before admission to the bar, was a private law firm. New York law does not allow practice of law in private law firms without admission to the bar, such privileges are allowed only to public entities such as public defenders' offices, district attorney's offices etc.
Judiciary Law 90(2) provides as to suspended or disbarred attorneys:
"It shall be the duty of the appellate division to insert in each order of suspension or removal hereafter rendered a provision which shall command the attorney and counselor-at-law thereafter to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another".
So, according to Judiciary Law 90(2), working as a clerk, and especially as a law clerk "of another" constitutes unauthorized practice of law(UPL) which was punishable in New York in 1995 as a misdemeanor, a criminal offense.
Now that we established that working as a "clerk of another" is considered in New York unauthorized practice of law, here is the question. Was Justice Clark engaged in unauthorized practice of law in 1995 when she worked as a "law clerk" for a private law firm before her admission to the bar in 1997?
Problems with the press-release as to Justice Clark do not end there.
The press release goes on describing that in 1995, 2 years before her admission to the bar, Justice Clark worked as "a law clerk" in a private law firm, and "then becoming an Associate upon receiving her juris doctorate".
No let's go back to Episode 1. Judge Lippman also considered, and erroneously so, that obtaining a juris doctorate, which is a degree with which people graduate from law school, is an equivalent of becoming a lawyer. Judge Lippman, of all people, should know better.
Yet, apparently, Appellate Division 3rd Department harbors the same misapprehension and considers people who have juris doctorate to be qualified to practice law as "Associates", or associate attorneys, in private law firms, like Justice Clark did.
To do justice to Justice Clark, no pun intended, I do not know whether it is just a horrible press-release or whether Justice Clark started to practice law as an associate in a private law firm on receiving her Juris Doctorate but before admission to the bar in 1997.
Yet, it is not what I do or do not know that counts, but what the appellate court announces to the world in its press release. This court sets the law for 28 counties. This court licenses attorneys. At the very minimum it should know the law pertaining, once again, no pun intended, to the practice of law, and not announce such legal blunders in its press-releases.
Now, suspended and disbarred attorneys have Juris Doctorates, court do not strip suspended and disbarred attorneys of their J.D.s when the court takes their license.
Did the Appellate Division 3rd Department, by its press-release of April 15, 2014, now allow Juris Doctorate holders, whether they are or are not licensed to practice law, to practice law because it considered it proper to announce that Justice Clark started to practice as an associate attorney in a private law firm simply "on receiving her juris doctorate"?
Does the Appellate Division 3rd Department proof-read its own press releases?
Does the Appellate Division 3rd Department, which is one of 4 licensing agencies for attorneys in the state of New York, know what it is doing?
Is there a double standard where if you become a judge of the Appellate Division 3rd Department, your unauthorized practice of law is viewed with pride, is not considered a crime or even an ethical violation and is proudly announced in press-releases of the court, and if you are a suspended or disbarred attorney and you dare to work as an associate, you will be charged with a felony and contempt of court, and if you work as a clerk, much less a "law clerk", as Justice Clark did before admission to the bar, a suspended or disbarred attorney will definitely be charged with contempt of court and unauthorized practice of law?
Are we talking about the same practice of law?
Are there different definitions of what constitutes practice of law in New York for people of different social statuses?
Judging by Episode 1 and 2 above, it sure seems like that to me.
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