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Nov. 3, 2004

High Anxiety: Democrats Won't Be Out-Lawyered as They Were in 2000

Everyone is anxious about today's election because of what happened in 2000. Many believe that the Democrats were out-lawyered in the post-election debacle, and they are not about to allow this to happen again.

Diane L. Karpman

Phone: (310) 887-3900


Diane is a legal ethics expert (expert witness and State Bar defense), she is a certified specialist in legal malpractice.


Everyone is anxious about today's election because of what happened in 2000. Many believe that the Democrats were out-lawyered in the post-election debacle, and they are not about to allow this to happen again.

Legions of lawyers have descended on the battleground states. Pundits estimate that 25,000-to-30,000 lawyers are crossing state lines.

Sen. John Kerry is reputed to have six "swat teams" of sophisticated attorneys stationed near chartered jets, ready to fly on a moment's notice to wherever they are needed. Space is rented, office machines are in place and telephone lines are up and running.

In many states, cases have been filed. Controversies include voter intimidation, voter elimination through felon lists and requirements for provisional ballots.

For the first time, international observers are here to observe the fairness of our electoral process.

California lawyers are in Nevada. Lawyers on the East Coast are in Florida for both political parties.

Unless those lawyers are acting only as observers or challengers (which is highly unlikely), they will be giving voters legal advice regarding the exercise of their rights.

The practice of law does not occur merely in the courtroom. As we all know in this post-Birbrower legal world, giving legal advice is practicing law.

Lawyers who are practicing in states where they are not admitted may be engaged in the unauthorized practice of law.

In Nevada, the unauthorized practice of law is a misdemeanor. Nevada Rule 189 allows for some wiggle room if you are representing a pre-existing client or are in-house. Rule 189.1 permits out-of-state lawyers to register, subject to many requirements and the payment of $150.

When you are responding in an emergency situation, you can't comply with preregistration requirements.

Nevada Rule 99 authorizes disciplinary authority to take action against nonadmitted lawyers.

Hypothetically, a California lawyer practicing law in Nevada could be disbarred by the Nevada disciplinary authorities for the unauthorized practice of law, even though not admitted in Nevada.

In California, this may not be a problem. We recently relaxed our rules to permit in-house counsel to register and to allow pro bono lawyers affiliated with an agency to practice on a limited basis.

State Rule of Professional Conduct 3-110 permits lawyers in an emergency "to give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required."

Arguably, assisting someone in voting would constitute an emergency. Because our rules have been relaxed for pro bono activity, out-of-state lawyers probably would fit within the parameters of the emergency exception.

The specific practice rules of other states, such as Florida, are easy to locate on Google. The search should include the name of the state and "unauthorized practice of law."

Lawyers helped voters in the South obtain their civil rights in the 1960s. Out-of-state lawyers have helped unions organize for decades.

What could be more emblematic of our commitment to the democratic process than assisting those being denied their franchise in obtaining justice?

We are a profession committed to pro bono assistance, and we are sworn to uphold the constitution and laws of the United States (Business and Professions Code Section 6068).

This problem demonstrates how ridiculous the unauthorized-practice-of-law rules are when applied to lawyers.

Nothing could be more ethical than a lawyer's helping someone to vote. Yet, according to the unauthorized practice of law statutes, that is illegal.

Sometimes, the rules simply cannot be reconciled with the needs of clients, consumers or society. We all have to decide what is right and follow our consciences.

As lawyers, we simply have greater duties to follow our public obligations and to assist in the fair administration of justice. Kirsch v. Duryea, 21 Cal.3d 303 (1978).


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