With final arguments scheduled for Tuesday morning in Secretary of the State Susan Bysiewicz’s Superior Court trial to be declared eligible to run for state attorney general, the state judicial branch’s chief disciplinary counsel, Mark DuBois, filed an “amicus,” or friend-of-the-court, brief that largely contradicts Bysiewicz’s legal arguments.
A state statute requires that the attorney general have 10 years’ experience in the “active practice” of law in Connecticut. Although Bysiewicz has been registered as an attorney for 24 years, she held two lawyers’ jobs for a total of only six years in the state before winning her current office more than 11 years ago. She seeks a ruling that those 11 years as secretary of the state count as the “active practice” of law — based on reasons including her continual advice in phone calls to local officials about election laws, and her testimony before the General Assembly about such laws. She even claims she’s practicing law when she holds a press conference.
But DuBois, whose job includes jurisdiction over the unauthorized practice of law, raised arguments to the contrary. He said if an attorney tells a lie or gives bad advice while practicing law, he or she can be subject to professional discipline by the Statewide Grievance Committee. But if Bysiewicz tells an untruth or gives incorrect advice, that doesn’t happen; it’s dealt with in a political setting.
Also, he said, when Bysiewicz “appears in her official capacity before legislative committees to advocate for or against some public enterprise or initiative, she is not practicing law, but rather carrying out the duties of her office.”
He said it’s better for “what are essentially political questions” to be handled without dragging them unnecessarily into the arena of lawyers’ discipline.
He even included a footnote citing The Courant’s Government Watch column: “The Hartford Courant of April 18, 2010 reported an investigation of the plaintiff concerning the use of her office computer to track holiday cards. The undersigned hopes he does not get a grievance complaint to investigate over the same issue.”
The column can be read by clicking here.
In another footnote, DuBois leaves an opening for Bysiewicz; “This is not to say that the plaintiff can never be practicing law when she pursues her constitutional and statutory duties. As discussed below, to the extent that the plaintiff visits … with her staff attorneys and works with them on legal issues she may well be practicing law.”
He went on to explain that “a much different analysis would apply when the Secretary interacts with her staff attorneys. Whether she seeks their advice as a client of a lawyer…or as a colleague is not for the undersigned to comment on. How these questions should be answered in the present case is a matter for advocacy by the parties, and decision by the Court.”
“However” he added, “it may well be that the answer to these questions resolves around whether the conduct in question is that of a political figure who also happens to be a lawyer, or a lawyer who also happens to be a constitutional officer of the state.”