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Since there’s no wiggle room in the law that prohibits out-of-state lawyers from practicing in Connecticut, the New York and Washington, D.C., superstars just picked by Connecticut Gov. John G. Rowland and the legislative panel considering his impeachment may be in a bind. According to six Connecticut ethics experts, the state statute on the unauthorized practice of law is simple and unforgiving: Without a Connecticut license, anyone practicing law in the state is engaged in the unauthorized practice of law. Although misdemeanor criminal penalties were dropped for in-house lawyers, the harshly-worded statute presents a potential problem for others. On Feb. 11, Rowland’s office announced he had hired Seth P. Waxman, of Washington’s Wilmer Cutler Pickering. Waxman, a former solicitor general with stellar credentials, is only admitted to practice in the District of Columbia. Later that day, the Connecticut General Assembly’s Joint Committee on Inquiry chose Steven F. Reich, of Manatt, Phelps & Phillips in New York, who is admitted in New York and D.C. If either the legislative impeachment panel or the governor were involved in a court case, Reich or Waxman could doubtlessly be admitted pro hac vice, noted one Hartford-based ethics lawyer. “The problem is, there’s no court case going on here. And it’s not clear that [Waxman or Reich] are planning to meaningfully associate with Connecticut counsel in any way,” he said, wishing to remain anonymous. Waxman responded, “I’m not practicing law in Connecticut.” He read over the state’s UPL statute and said he disagreed that it prohibits the kind of work he will be doing for Rowland. Giving legal advice, said Waxman, is not the same as practicing law. He said that he provides legal advice to clients all over the country, and actually doesn’t have any clients in Washington, D.C., where he is licensed. State Rep. Arthur J. O’Neill, R-Southbury, co-chair of the 10-member committee on inquiry, said he had no doubt Reich or Waxman could be admitted pro hac vice at any point. And as for the inflexibility of the unauthorized practice statute, he commented, “My guess is, and I’m not trying to be a wise guy, if somebody from the bar association shows up with a complaint to grieve somebody on the grounds of unauthorized practice of law, it seems how the legislature is hiring one, and the governor is hiring another, [the UPL statute] probably would be very quickly repealed. Since both the governor wants a lawyer in an out-of-state firm, and we have chosen a lawyer in an out-of-state firm, if someone says there is a law that seems to prohibit these two firms from participating [then], unlike GE, we could change the law.” The CBA House of Delegates, in a close vote, recently declined to recommend the loosening of the state’s multijurisdictional practice rules for interstate lawyering. O’Neill said the unauthorized practice issue was never raised by lawyers from the two Connecticut firms interviewed for the counsel role, or by the legislature’s lawyers. Along with five out-of-state firms, the committee interviewed the Hartford firm of Reid and Riege and the Bridgeport firm of Zeldes, Needle & Cooper. The Zeldes firm assisted legislators in the proceedings against former Probate Judge James Kinsella in 1984, Connecticut’s lone impeachment experience. The unauthorized practice statute states that anyone who has not been admitted to practice in Connecticut shall not practice law or even “assume to be an attorney” on pain of being in contempt of court, and would face a criminal misdemeanor charge with fines up to $250 and two months in jail. Enforcement of unauthorized practice laws appears to be open to any lawyer in any Superior Court: “[T]he Superior Court shall have jurisdiction in equity upon the petition of any member of the bar of this state in good standing or upon its own motion to restrain such violation.” In 2002, the CBA Committee on the Unauthorized Practice of Law issued an opinion that in-house counsel who lack a Connecticut license are in violation of the statute. In 1995, criminal penalties were eliminated for in-housers without a Connecticut law license who only render advice to their company. The opinion stated they were not to render advice on Connecticut law, but the statute makes no distinction between practicing law and practicing Connecticut law. The idea that a lawyer or judge could interfere with the legislature or the governor retaining their counsel of choice in the critical impeachment crisis “points out the anomaly of our stupid unauthorized practice statute,” commented one CBA committee head. Sen. John Wayne Fox, D-Stamford, is also a co-chair of the committee on inquiry. He said the committee considered whether its out-of-state counsel could be admitted pro hac vice, if litigation arose. “What I was thinking of was what had occurred in the Kinsella scenario, where there were challenges to the propriety of what we were doing that went up to the [state] Supreme Court. We had fairly regular court appearances.” He said the statute may pose a potential challenge to both the governor’s and the committee’s picks. Fox noted that there is strong case law backing the concept “that one is entitled to be counseled or represented by the counsel of his or her choice.” CBA UPL Committee Chairman Carl M. Porto, of Hamden’s Parrett, Porto, Parese & Colwell, could not be reached for comment. He has previously expressed the view that Connecticut’s unauthorized practice law gives little leeway for lawyers licensed in other states who do legal work in Connecticut. James A. Trowbridge, another member of the UPL committee, teaches ethics and professional responsibility at Quinnipiac University School of Law. He said, “I believe the legislature is the keeper of its own forum, and can determine the qualifications of people who appear before it to represent committees of the legislature.” Trowbridge said courts would probably defer to the lawmakers’ choice of counsel on separation of powers grounds. He said the legislature wouldn’t tell the Superior Court it can’t decide who can practice before the Superior Court, “and I think it’s exactly the reverse of that.” Trowbridge noted that many committees of the CBA have recommended a provisional license for corporate in-house counsel, so they would not face the stigma of unauthorized practice raised by C.G.S. 51-88. “But the CBA doesn’t decide what the rules will be,” said Trowbridge. “It’s the legislature and the courts.” As for Rowland being represented by Waxman, Trowbridge said, “The governor can take advice from anyone he wants. If he wants to be represented before a tribunal, he’d have to have someone who satisfies the requirements of that tribunal.” Reich could not be reached by press time.

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