Lawyers on the Road: The Unauthorized Practice of Law and the 2004 Presidential Election

Article excerpt

I. INTRODUCTION

During the days preceding Election Day 2004, thousands of lawyers from firms big and small, from large cities and little towns, swept across the country to aid and assist in the conduct of elections on a local level. The planning for the widespread deployment of lawyers was initiated well before the election when the Kerry-Edwards campaign and the Democratic National Committee announced their plan to send 10,000 lawyers to the so-called "swing states," where the polling data showed that the election was "too close to call" before Election Day.1 Even as late as October 26, 2004-just a week before the election-I personally received e-mail solicitations to join the Kerry-Edwards team as a "poll watcher" in Florida.2

The Kerry-Edwards campaign was not alone. The Republican National Committee (for the Bush-Cheney campaign and others) also sent their own lawyers to those very same states,' and the self-proclaimed non-partisan "Election Protection" campaign sponsored by the Lawyers' Committee for Civil Rights, the People for the American Way, and the National Coalition on

Black Civic Participation/Unity '04 sent unknown numbers of individuals (mostly lawyers) to virtually every state, as well as creating and manning telephone hotlines to "offer immediate, legal assistance to voters during the early voting period and on Election Day."4 This was in addition to the United States Department of Justice's decision to send "approximately 840 federal observers and more than 250 Civil Rights Division personnel [mostly lawyers] to eighty-six jurisdictions in twentyfive states to monitor the general election on Tuesday, November 2, 2004. "5

During the early voting period (the period before Election Day November 2, 2004, in which individuals otherwise not available on Election Day could cast their vote in person) and on Election Day, Lawyer-volunteers actively participated in pollwatching, campaigning, and, on the Kerry-Edwards side, in manning temporary legal clinics for voters at polling sites. In Florida, for example, out-of-state and in-state Democratic lawyers alike wore hats, buttons, and stickers pronouncing themselves (on behalf of the Kerry campaign) to be "Florida Voting Rights Attorneys" and part of the "Kerry Legal Team."" The Republican National Committee and local state parties in Florida offered lawyers the opportunity to wear golf shirts, baseball caps and pins proclaiming that the individual was a "Voting Rights Counselor.'" The Election Protection folks donned black t-shirts with white text stating: 'You have a Right to Vote." Internet logs of Election Protection volunteers indicate that such volunteers were instructed to look for anyone coming out of a polling place not wearing an "I voted" sticker and to approach them to ask questions.8 They also were to hold signs that indicated that they could advise the voter on their rights and answer questions. 9

The precedent set during this last election cycle for partisan and supposedly non-partisan teams of lawyers to fan out across the states whose electoral votes may decide the presidential election is troublesome. The lawyer-deployment efforts encouraged lawyers to use their legal skills to advise voters in states where the lawyer was not authorized to practice law. In other words, the out-of-state lawyers were encouraged to engage in the potentially criminal act of unauthorized practice of law ("UPL").10

The incentive to engage in the unauthorized practice of law-with all props provided-was enormous. However, it is not in the interests of the candidates, the parties, or the individual lawyers to do so. First, encouraging breaking the law is not likely to win a candidate votes. Second, political parties should not be depleting valuable local resources to send those lawyers to other states, and the host state may want to think twice about whether the visiting lawyer has the same interests at heart as attorneys from the host state. …