One way the “practice of law” might just be like pornography.

No, not in any of the ways that would be fodder for jokes or insults directed at lawyers.  This is actually another follow-up post of thoughts on an aspect of the BLE’s petition for changes to Rule 7 that I first discussed here.  And despite the “click-bait” nature of the title of the post, there is a legitimate point to be made (at least I think so).

The answer is that the best definition of each may just be what Justice Potter said as to one of them — “I know it when I see it.”

As part of its proposed revisions to Rule 7, the BLE now seeks to make a wholesale replacement to the existing language in Section 5.01 that currently adds things to Tennessee’s statutory definitions of “law business” and “practice of law” for purposes of determining eligibility for comity admission.  Those two terms are defined in Tenn. Code Ann. 23-3-101, but the focus there is on acts the state legislature has decreed are the unauthorized practice of law if performed in Tennessee by people without law licenses.  I do not think many would argue that the statute provides comprehensive definitions of the things lawyers do by any stretch.

Currently, Section 5.01 adds to those definitions in ways that may not be perfect but hardly seem broken.  Since Section 5.01 focuses on lawyers who would be trying to become licensed in Tennessee, it cannot just rely on our state’s statutory definitions of the terms since those necessarily wouldn’t apply or be the same as the definition of such terms in the lawyer’s home jurisdiction.  The rule currently adds several, entirely uncontroversial endeavors that qualify: full-time employment in private or public law practice, being actively engaged in teaching law full-time as a law professor, and then gives the BLE discretion to consider other types of full-time employment requiring application of legal knowledge and interpretation of the law.

Now, the BLE seeks to have all this changed with the creation of a new defined term of “active practice of law” that appears to me to very curiously lessen the BLE’s discretion.  The first subpart of the BLE’s proposed section on “active practice of law” appears fine as it reiterates that working as a private practice lawyer, public practice lawyer, judge, judicial law clerk, or professor fits, but the second subpart then raises real questions.

It is in that subpart that the BLE adds this language:  “Notwithstanding the foregoing, the ‘active practice of law’ is further defined to require that at all times in the durational period the applicant has: (1) held a law license in ‘active’ status; (2) spent one thousand (1,000) hours or more per year engaged in the practice of law, for each of the required five years in the durational period; and (3) derived at least fifty percent (50%) of non-investment income from the practice of law.”  Nothing about the language of this limitation is clear that it would apply only to the second subpart.  Thus, this definition of “active practice of law” would appear to modify all of the categories.

As to judges, why should it matter if they have their law license in their home jurisdiction in an “inactive” status either to save money or because they aren’t allowed to practice law in their home state while serving as a judge for instance?  For other categories, why should the concept of 1000 hours of work be set in stone as a benchmark for whether you are in the “active” practice of law in a calendar year?  Perhaps that makes sense if you work under a strict billable hour regime, but what if you have only a plaintiff’s practice and handle just 4 or 5 cases in a year, win each of them, and do so in an efficient way where you only worked say 800 hours that year?  Is the BLE really going to stake out a position that such a year should not count because that wasn’t the “active” practice of law?  Would it matter if the hypothetical lawyer was taking it easy that year because she’d worked 2000 to 2500 hours for several preceding years, was flush with cash, and now being more selective in choosing new cases to take on?  And, how exactly is a lawyer who doesn’t keep time records (as some plaintiff’s lawyers do not) ever going to prove whether they worked 1,000 hours in a given year?

Although all of this presumably only matters for purposes of calculating the 5 of last 7 years requirement so as to be eligible for comity admission (i.e. without having to sit for the bar examination), the wisdom of the BLE’s proposal is something I am presently struggling with.  And, at this point then it seems like wholly unnecessary micromanagement of something that is far too difficult to define in a rule.