How can this person practice law?

Re: Re: Re: Re: Sperry v. Florida

I agree that the state has an interest in regulating the use of titles like "attorney" and "lawyer". People like Mr. Savino should probably avoid the plain-vanilla titles of "attorney" or "lawyer", because the general public would assume that anyone using such titles is a state-authorized legal practitioner.

On the other hand, Mr. Savino is probably on safe ground if he uses those titles in an appropriately qualified manner, like "INS-authorized immigration lawyer" or "California-licensed attorney".

If you pass the patent bar, the USPTO gives you the title of "Patent Agent" (for non-lawyers) or "Patent Attorney" (for lawyers). It is my understanding that a USPTO-licensed Patent Attorney has the right to use that title and to perform USPTO-related legal work anywhere in the US, even in states where he is not a member of the bar. (A USPTO-licensed Patent Agent also has these rights, but he does not get to use the work "Attorney" in his title).

My point is that state bars don't have complete control over the use of the word "attorney". The USPTO, for example, decides who is a "Patent Attorney", and the state bars just have to live with it. It may well be the same with "immigration attorney" or "IRS tax attorney".

 

Re: Re: Re: Re: Re: Sperry v. Florida

Okay... understood. Good points, once again.

But would you agree that it's at least reasonable to make a distinction, for our purposes, here, between someone who:

• lives in California; and,
  
• gets a DL JD in California and passes California's bar and gets admitted to practice California law in California; and then,
  
• passes the patent bar and gets admitted to practice patent law both in the federal system in California, and in any other state if he so desires; and then,
  
• actually practices both California state law, and federal patent law, in California; and federal patent law in other states from (or headquartered in) California;[/list=a]and someone who:
  • lives in Florida; and,
    
  • gets a DL JD in California and passes California's bar and gets admitted to practice California law in California; and then,
    
  • passes the patent bar and gets admitted to practice patent law both in the federal system in California, and in any other state if he so desires; and then,
    
  • actually practices only federal patent law (and is headquartered) in Florida?[/list=a]And if it is reasonable to make a distinction between those two, for our purposes, here...
    
    ...then of the two, which one feels more -- you know... at the visceral level... right in your gut -- overall, like it's exploiting something of a loophole... even if it's not really a loophole at all, when analyzed using the completely valid methods you've prescribed, herein? I'm askin' for an honest "gut" reaction, here... intellect aside, for just a moment.
    
    Can you see, then, sorta' where I'm comin' from on this?
    
    And what'dya think about the 10-year question?

 

CalDog,

I, too, "get it". There's nothing wrong with what you have said. My misgivings are of the more conservative sort...I wouldn't want to INVITE a suit against myself upon which so very much could hang.

Let me make one other, not quite inrelated point: Even the ethical codes have long drawn an important distinction between the term "Patent Attorney" and "attorney". Granted, this distinction is in the realm of advertising oneself as a specialist, but my concerns in this case also have to do with advertising oneself as a specialist.

There are cases from Hawai'i and California that follow your reasoning. But take a look at Maryland for a different view.

 

CalDog v. DesElms

The state licensing laws that I am most familiar with are the California laws for engineers, surveyors, and geologists. These codes have an explicit exemption for "federal officers and employees". If the US Army Corps of Engineers wants to send a Montana-based engineer to inspect a federal dam in California, or if the US Geological Survey wants to send a California-based geologist to map a fault in Alaska, they just go ahead and do it. They don't worry about the state licenses held (or not held) by their employees or contractors.

If a federal employee does seek a California PE, PLS, or PG license, he gets special treatment not accorded to those in the state or private sectors. You need a few years of qualifying professional experience for a license, and normally this experience must be obtained under an appropriately licensed supervisor. But a federal employee can claim qualifying experience even if his supervisor is unlicensed. The feds can perform qualifying professional work without being licensed, and the California boards acknowledge this fact.

In practice, federal employees commonly are state licensed, and federal projects commonly do conform to state licensing requirements. But this is voluntary on the part of the feds. The feds can (and do) pull rank and claim exemptions from state licensing laws when the need arises.

So for me, it seems completely natural that state licensing rules are suspended when dealing with federal entities. I would assume that federal exemptions are the norm for any licensed profession in any state.

The Florida bar's jurisdiction is over attorneys practicing Florida law. But this is not necessarily the same thing as all Florida attorneys. For example, there are no doubt lawyers in other states that are licensed in Florida, and who address issues of Florida law. They therefore fall under the jurisdiction of the Florida bar, even though they are physically located elsewhere.

But if the practice of Florida law is independent of physical location, then it follows that a lawyer can be physically located in Florida, yet not practicing Florida law. I would argue that Mr. Savino falls into this category, and that he is actually practicing in another jurisdiction (in this case, a federal one) even though he happens to be physically located in Florida. In other words, his body is in Florida, but his practice is outside Florida, in some kind of rarified "Federal space".

So I would agree that he is practicing in another jurisdiction, and should be eligible to apply for the Florida bar after 10 years of such practice. But I have no idea whether this logic would fly with the Florida bar.

 

Re: Re: Re: Re: Re: Re: Sperry v. Florida

I'm not a lawyer, don't play one on TV and don't intend to, but, honestly, I don't see even a hint of reason in making such a distinction. I mean, I understand the "risk" argument, but as to "loophole", I just not see it. From what you just presented, both persons seem to act in an equally LEGAL manner, as explicitly permitted by law. Well, maybe it's just my background in mathematical logic...

 

Thank you, Stanislav, for raising this point.

NO ONE posting here is suggesting that Mr. Savino's activities, as described in his web site, are illegal or in any way dishonest.

I am CERTAINLY not saying any such thing, nor would I ever say so (unless I were VERY sure of my ground) since that would be defamation of charactor and I don't want to risk a lawsuit against myself, either!

I think what makes the example interesting is that it raises a whole area of lawyer regulation that is very "hot" right now, though the public is blissfully unaware. The formal term is "multijurisdictional practice" or "MJP" to those involved.

State level licensure of attorneys is as old as the country. Indeed, one of the things President Andrew Jackson and his backers FOUGHT was any requirement for lawyers (or doctors or dentists) to be licensed.

But the communications revolution, especially the internet, and the wild growth of e commerce have given private citizens direct access to national markets and, perhaps even more significant, have given small businesses a national presence, a national client base, for lawyers.

So you have something entirely new; a well trained lawyer licensed in ONE state offering his services to residents of ALL states.

This creates opportunities for the lawyer to access clients wherever they may be (and incidently become even more specialised and proficient) but it also strips state governments of much of their ability to protect consumers within their own states.

In Mr. Savino's case, he is regulated and subject to disciplinary action by the federal agencies before whom he appears SO LONG AS the conduct complained of is somehow connected with his federal practice. And that's what makes me nervous; I envision (rightly or wrongly) that the Florida state authorities would love to turn him off along with others similarly situated. Every regulated profession, after all, seeks to protect the PUBLIC but also seeks to protect its own MEMBERS from competition!

 

I guess that's my point... has been throughout. I would never want to practice in a state wherein I know that said state's bar was just waiting for me to screw-up. Moreover, I just feel like Florida's wishes should be observed, regardless. If that state's bar doesn't want an out-of-state lawyer practicing in its state, then I, for one, would honor that sentiment. The fact that I could find the kind of -- and I'm calling it this intentionally -- "loophole" that which Mr. Savino and others like him are using would not change that position, at least in my case, one single bit.

 

Sorry, I still don't see it. You suggest treating the wish of a grout of people to, basically, protect their turf over the letter of law? Ain't sound right.

 

Well, Stanislav, there ARE a few public policy considerations, here.

Many State Bar associations have a requirement for minimum pro bono hours or financial contributions to organizations providing legal help to poor people. New Mexico sure does.

Now, these requirements are usually termed "aspirational" by which we mean something MORE than voluntary but LESS than mandatory; you won't lose your law license if you don't fulfil them. Still, there is definite pressure to comply.

The justification is (rightly) that law is a professional monopoly. Pro bono requirements are part of the price the profession pays to society for the franchise; this obligation is, as I have elsewhere pointed out, one of the earmarks of a "learned profession".

Now I do not know whether Mr. Savino does pro bono immigration work or contributes to such organizations, quite likely he does, but the lever to cause him to do so does not exist in Florida because he is not a member of the Florida Bar!

Or again, the Florida authorities have no lever to require him to stay current in the law; they can't impose MCLE requirements on him. And it's citizens and residents of Florida whose vital interests are in his hands.

Again, most lawyers maintian attorney trust accounts for client funds. Mr. Savino likely does. In most states, the interest on those funds goes into a program called the "Interest on Lawyers' Trust Accounts" (IOLTA) and is used to fund legal access for poor people in that state. Mr. Savino, though he practices law within Florida, probably does not participate in Florida's IOLTA program.

None of these things is unanswerable; none involves dishonesty, none is unethical. Not at all. But becasue he is "cut off" from the legal community, the community as a whole is the loser.

 

First, what nosborne48 said.

Second, clearly I have more respect for a given state's bar than do you. And what I know that apparently you don't is that "turf" is among the least of any bar's concerns. It only seems that way to people who don't like its rules. This is not merely about fraternity.

Third -- and, really, this is at the heart of it for me -- I think it falls into the category of, "Just because we can do a thing doesn't mean we should."

 

...none of wich warrants the term "loophole". The guy has the right to practice in all states, he chooses to do so in Florida. Perfectly legal. I do understand the "risks" you described, but that's his own funeral.
BTW, I won't retain immigration lawyer for some 2 more years, but when I will, skill in finding "loopholes" will be a plus. Even though I'll make every effort to make my case as straightforward as possible. I'll make even stronger statement - I don't see exploiting loopholes (real loopholes) in, say, immigration law as nesessarily dishonest. That's even though I recognise the undeniable right of American people to set them and can see or accept on faith the many "public policy considerations" (i. e. each and every one of then has or had a good reason behind it). Wasn't there even some court decision on, IIRC, the right to exploit "loopholes" to minimize taxation?

 

But I do have respect for it. It is made of highly intelligent and generally ethical people. Which doesn't make them lords of everything.

In this particular case, I just don't see how. The attorney's qualifications are shown by his CalBar membership, so it's not it. His clients apparently benefit from him being an "attorney" rather than "consultant". Ethical considerations are no doubt addressed by the federal authorities (and, again, CalBar). "What nosborne 48 said" are all valid and true, but by his own admission don't involve dishonesty. The guy apparently found and exploited the legal way of practicing (immigration) law with DL degree in state of Florida. Unlike "legal" diploma mills we discuss here, his way doesn't involve lying. Would I do it? Probably not. But again, I'm not in his particular circumstances, either.

 

I don't know how to make myself more clear. I've stated and re-stated (in different ways) my position with an aim toward refining it here, and still you do not seem to understand it. This seems clear to me, as evidenced by the fact that you're arguing against things I never even said in order to argue with me at all. I never alleged illegality or dishonesty or lack of ethics or lying. Why you're having so much trouble getting your mind wrapped around what I actually am saying is a mystery to me.

I think a given state's bar should most certainly be the effective "lord," to use your word, over the practice of law in its state... guided, of course, by fair-minded rules/laws that will withstand constitutional scrutiny and which are accessible to all persons in said state.

I'm not, for what feels like the 50th time, opposed to what Mr. Savino's doing, strictly speaking. I'm only troubled by the precise way that he's doing it. If he were doing what he's now doing (i.e., practicing federal law within the state of Florida), and if that were just one of the states in which he were doing so; but if he were physically (located/headquartered) in California, then I would be somehat less troubled. This is a personal thing, I'm talking about here... my own personal viewpoint; a preference; and I'm having trouble understanding why it's so irksome to a few good folks here.

I simply would never do precisely what Mr. Savino's doing. What part of that are those who are taking issue with me here having trouble understanding? If I were a Florida resident, I would not end-run the wishes of my state's bar -- even if Florida had neglected to draft statutory or rules language which specifically prevented it -- by first getting a DL JD in California while living and working in Florida; then getting admitted to California's bar (but with no intention, whatsoever, of ever practicing law there); and then, within the state of Florida, calling myself a "lawyer" or an "attorney" there... even if it was only a limited federal practice. Mr. Savino and others like him are certainly free to do so (though I still think it's risky), but I simply never would. I might do it if I were headquartered out of California, but not precisely the way Mr. Savino's doing it. I believe it disrespects both what Florida's and California's bars had/have in mind. I choose to honor that. I get to honor that... and without being accused of thinking/saying that it's illegal or dishonest or unethical or involves lying or any of the other things of which I'm being inaccurately accused of here, thankyouverymuch.

Some people will always see the act of navigating the law and all similar constructs of rules and regulations as something of a game of skill. It's just their world view. Perhaps you're one of those people... I don't know. If you are, believe me, I don't see you -- or Mr. Savino, for that matter -- as "bad" or as "scofflaws" or "criminals" or anything of the sort. I just don't know how much clearer about that I can be. My use of the term "loophole" addresses what I believe is the spirit and intent of Florida (and California, for that matter) law, and the wishes of the Florida (and California) bar(s). Period.

There is no question in my mind that the Florida bar wishes that Mr. Savino (and others like him) were not practicing any kind of law within its borders, nor calling themselves "attorneys" or "lawyers," without also being members of that state's bar. Furthermore, I'm guessing that if you asked the California bar how it felt about what Mr. Savino has done, it would first talk about how it's not technically against any rules or illegal or anything like that; but I believe that once you got past all that disclaimer-like rhetoric, and if you could just get it to speak to the matter candidly, it would simply not approve.

I choose to respect and honor that; and I just don't understand why some people here wish to begrudge me of it.

 

I don't believe that I ever used the term "loophole".

It is important to me, and I don't for a moment doubt that it is important to Mr. Savino as well, that law is not merely a business providing services. Law is a profession with obligations to the public as a whole. It often seems to me, BTW, that large, commerical firms forget this more easily than do small firms or solo practitioners.

Now, another point that needs to be made here; If Mr. Savino is "cut off" from the legal community of his state, that certainly isn't Mr. Savino's doing. It is, after all, the Florida State Bar that will not admit a fully qualified California lawyer.

In any event, I've already pontificated on this matter long enough.

 

But I, on the other hand, did. And I don't take it back. I explained why in my previous post. (These statements not being aimed not at nosborne48, I should add.)

Which should come as no "news" to anyone, including, and perhaps especially him. Let's not forget that the entire reason Mr. Savino approached the situation the way he did in the first place was because of his knowledge that a DL JD would not be acceptable to his state's bar. He did it the way he did so that he could call himself a "lawyer" or "attorney" without, technically, breaking the law. If anyone knew his state bar's position on the matter, he did. So, given the realities of the situation, it sorta' makes it, in a very real sense, his doing, after all... or so it is my opinion.

So have I... but I'm certain there will continue to be challenges by others here which, though I'll try to avoid it, ultimately cannot go unaswered. We'll see.

 

Well, since it's a worldview thing, it makes little sence arguing any longer, does it? I think I'm beginning to see your point. I still don't agree with it, but that's OK, right?

 

But before we close, we SHOULD acknowledge that completing Taft's J.D. program and passing the FYLEX and the General Bar Exam are achievements that should make ANYONE justly proud.

He truly did it "the hard way".

 

Of course not! How dare you disagree with me! Who the hell do you think you are!

[pause... for sense of horror and disbelief to set in]

KIDDING!!

Oh, absolutely! No question about it! No one said the accomplishment wasn't laudable. I just wish he were taking that magnificent and impressive accomplishment and were practicing/headquartered in California... even if he also practiced immigration law in Florida and however many other states. But that brings us back to that whole worldview thing again, so... 'nuff said.

 

I'm just curious: don't you find this requirement a bit arbitrary? I mean, if I'd be required to relocate cross-continent to practice my profession, I'd like to have a damned good reason for it! And I'm not sure "wishes of the Bar", however noble and mighty, would do!

 

Well, we've given you several reasons why being a member of the state bar where one is practicing is a good thing for the lawyer, for his clients, and for the public at large.

None of them is an overwhelming consideration, we admitted that, but they are valid reasons nevertheless.

I could come up with a couple more, if you like, such as state bar sponsored mandatory malpractice insurance (though I don't know off hand whether Florida has it) and the ability to plead in the U.S. District Courts of the state. I don't know offhand whether Florida is like New Mexico, but here, even a strictly federal practitioner must be a member of the State Bar to be admitted to practice before the federal District Court.