I wrote a few weeks ago about whether lawprofs count as lawyers. There is, in my opinion, no right or wrong answer to this question, but one distinction between the two is clear: you have to be a bar member to do much of the work of a lawyer, but you don’t have to be a bar member to work as a law professor. Indeed, some law professors, such as HLS’s Duncan Kennedy and Scott Brewer, have never even taken a bar exam.
That said, I’d wager that most law professors are bar members, and I’m no exception, having been a member of the California Bar since 2003. When I was working at a firm, this was a requirement, but since I left for academia, it obviously isn’t any longer, and I’ve grown ambivalent about whether it makes sense to maintain active bar membership status (primarily because of the high cost of bar dues: $410 last time around and going up every year).
Fortunately, there is a middle ground. California, possibly like other states (I haven’t checked), permits members to opt for “inactive” status. This allows members to pay lower bar fees (only $125 as opposed to $410), but precludes them from actively practicing law (can’t appear in court, represent clients, sign court submissions, etc.). If you want to change back to active bar status, you simply apply and pay the full dues for that year.
Since I have no short-term plans to practice law, my sense is that changing my status to inactive makes sense. My question to the broad and esteemed Prawfs readership is if others have made the same move and/or have strong opinions about it. I explore a couple possible objections below the fold.
First, while I have no short-term plans to practice law (in the same formal sense that some law profs are affiliated with firms or take on pro bono cases), I wouldn’t necessarily be against a limited consulting gig if an interesting opportunity came along. Would this kind of informal advising amount to unauthorized practice by a bar non-member? Are there other activities that law profs do on a regular basis (other than traditional client representation) that could run up against unauthorized-practice restrictions?
Second, are there any expressive or communicative costs to inactive status? I had an interesting conversation with a recent Southwestern graduate about the challenges of the California bar, and she suggested that students (at least at our school) want and expect their professors to have passed the bar. Her reasons were that the bar should be a mandatory rite of passage for all members of the profession, including professors; and that bar membership represents a standard of minimum competency that lends credibility to those teaching the law. Even if one regards her observations as reasonable and typical of students, though, I’m not sure they make any difference with respect to the active/inactive distinction. I understood this student’s objection to be about professors not assaying the bar at all, not passing the bar and then choosing a more limited status.
As the above discussion makes clear, there don’t seem to me any reasons that opting for inactive status would be problematic. I wrote this post to see if I’m overlooking any reasons that it might be, and to see if other law profs have opted for inactivity themselves.
Posted by Dave_Fagundes on July 29, 2009 at 06:08 PM
Comments
So lets get this straight… you need a bar license to so much as give someone advice on the law. But, there is a question as to whether you should have an active bar license to TEACH law?
Perhaps it is not legally required, but there really is something disgustingly lame about a law prof who never even took a bar exam, and only mildly more savory about one who doesn’t keep an active license.
For the extra $300 per year, keep your license active. Your teaching qualifies as CLE, at least in part. And, if you’re going to teach other people how to be a lawyer, at least be one yourself. If you don’t have the extra $300, I’ll be happy to hire you part time to do some work for my practice so that you can afford it.
Posted by: Marc J. Randazza | Aug 3, 2009 8:12:06 AM
re: Rick Bales’ and anon’s comments —
If someone has a short term position in California I certainly see the argument for not sitting for a burdensome exam. That said, if someone has a tenured or other long term position in a particular jurisdiction, the burden of sitting for a bar exam is not that great, and the process can itself be informative to professors teaching in that jurisdiction.
That said, it is possible to do at least some kinds of work pro bono without sitting for the bar. IIRC, Duncan Kennedy does a considerable amount of what is effectively pro bono work that consists of advising and strategizing with Boston-area organizations that are focused on affordable quality housing.
Posted by: alkali | Jul 30, 2009 2:44:49 PM
In Virginia, you cannot waive into the bar unless you plan to practice full time, and teaching law specifically does not count. (You can, however, waive in if you want to practice full time, or take the bar if you want to practice part-time, or take the bar if you want to practice full-time.) The rule seems designed to discourage law professors from practicing law part-time. Law professors are specifically eligible to be Associate Members of the Virginia Bar. Associate Members must pay dues and get some minor privileges, but they have no voting rights and cannot practice law in Virginia.
Posted by: Scott Dodson | Jul 30, 2009 12:58:13 PM
Rick –
would you agree with that, even if the membership in the local bar is not “waive-in’ but rather ‘must-exam”? Because in that case I see the bar membership as a zero-sum tradeoff with other faculty responsibilities, namely scholarship and teaching preparation. And if pro bono is a very very small part of one’s work, perhaps the tradeoff is not appropriate.
Just my $0.02
Posted by: anon | Jul 30, 2009 9:48:21 AM
As privileged members of a distinguished profession, I believe we are ethically obligated to provide pro bono representation to those less fortunate. It is doubly true because we serve as role models for our students. In most states, however, we cannot perform pro bono legal work without a bar license. This, I believe, is reason enough to get a bar license in the jurisdiction in which you teach.
Posted by: Rick Bales | Jul 30, 2009 8:33:25 AM
Both interesting thoughts, thanks.
I take the point that even providing advice could be construed as practicing in some j/ds, though I suppose the easy solution is to disclaim status as a lawyer or creation of an attorney/client relationship prior to providing anything that looks like legal advice.
The concern about CLE is valid, and CA certainly has quite onerous CLE requirements. Fortunately for lawprofs (at least in my state) there is no CLE requirement, so we probably wouldn’t have to worry about that.
Posted by: Dave | Jul 29, 2009 8:42:45 PM
In some states, lawyers on inactive status must do more to become active than pay dues — they must make up a significant portion (if not all) of the CLE credit that they would have been obligated to take to remain active. This might not matter — if you teach CLE classes and get CLE credit already, then you’ll be able to start right back up. But lots of lawyers who want to switch back to active status are deterred by the amount of CLE credit they must make up.
Posted by: bobolinq | Jul 29, 2009 8:19:58 PM
The definition of the practice of law (for purposes of what constitutes unauthorized practice) differs from state to state but your parenthetical suggests it is limited to doing things like “representing clients” and appearing in court. In fact, the rendering of legal advice of any kind is generally the practice of law, and if you are doing it in a state in which you teach but aren’t licensed, you are technically doing something your students shouldn’t be.
I’m licensed in Michigan (since 1979), Indiana (inactive – but active from 2001 to 2008), and Massachusetts. I live in Michigan and Massachusetts each part of the year, so I like to keep absolutely kosher, even if I’m not engaged in taking on clients.
Posted by: Jeff Lipshaw | Jul 29, 2009 7:07:06 PM