Proving the negative: lawyers are special
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Lawyers hate proving the negative, unless of course they’re asking other lawyers to do so. In which case, game on!
For reasons that are not very exciting, I was helping someone research the mandatory CLE (continuing legal education) requirements for lawyers in New York. CT doesn’t have any CLE requirements, so I wasn’t aware of how harrowing it can be for someone who lives in a state that does. Here’s what NY requires if you are a new lawyer:
- 32 credit hours are required of newly admitted attorneys during the first two years after admission (16 credit hours per year)
- of the 16 credit hours each year, 3 are to be in the areas of ethics and professionalism; 6 in the area of skills; and 7 in the area of law practice management and various areas of professional practice
Now 32 credit hours may not sound like a lot, but I imagine it is, as with all else when it comes to lawyers and hours, deceptive.
Then I got thinking: what if I were admitted to practice in NY. Being a CT lawyer, would I have to earn these CLE credits? The answer is no, but that’s where it gets a little weird. NY provides an exemption for lawyers not practicing in the state (whether that means lawyers practicing in others states or simply lawyers who, regardless of whether they live in NY or not, do not engage in the practice of law there, is another question).
So, if you’re an attorney admitted to the bar in NY, but don’t practice, you should be okay. Just don’t ask the Bar Association [pdf]:
The issue of whether an attorney is practicing law in New York is a question of law that must be determined by the individual attorney. All members of the New York Bar are presumed to be practicing law in New York unless otherwise shown; the burden of proof is on the individual attorney. In determining whether an attorney is practicing law in New York, the attorney should be guided by case law and the Restatement of Law, Third, the Law Governing Lawyers, Chapter 1, §3. Attorneys who determine that they are not practicing law in New York must retain supporting documentation for audit purposes and comply with the requirements of §§1500.12(f) and 1500.22(n) of New York’s CLE Program Rules.
Neither the CLE Board nor its staff shall advise attorneys on the issue of whether their specific activities constitute the practice of law in New York.
So I would be presumed to be practicing in New York, despite my full-time job as a public defender in the State of Connecticut. And if the NY Bar Association comes knocking, the burden is on me to prove that I do not and have not practiced in the Empire State. Assume that I can get some statement from the public defender’s office here stating that I am, and have been, a full-time employee since Eve bit into that legendary apple. What does it prove? It proves that for the most part, I am a practicing lawyer in NY. How can I prove that I did not practice in NY on my days off or in my spare time or provide legal advice to a client in NY on weekends? (Not saying I did…)
And I have the backing of a state agency. What of the solo practitioner or the private law firm? What documentation proves that one did not do something? Documentation is generally generated when someone does something. Who creates a paper trail for something one didn’t do?
Does anyone have a clue how or why this was promulgated and how one deals with it? I’m sure there are non-practicing NY lawyers out there. What do you do? Anyone have any experience with this (and my condolences in advance, if you do)?
It almost immediately jumped out at me as I was reading this, that there is a connection to the whole “innocent until proven guilty” presumption that theoretically undergirds our jurisprudence. Wouldn’t it be a great thing if we, as a society, remembered this?
When accused of something, it’s actually not very easy to “prove” you didn’t do something, whether it’s proving you didn’t practice law in NY, or proving you didn’t commit the crime of which a prosecutor — usually referred to in court as “the People” — has accused you.
This is the reason, historically, the burden has been on the accuser.
Yeah, the same thing occurred to me last night when I was reading these rules. That’s why I say: lawyers are special. We treat each other differently.
My point was that we don’t. When it comes to other lawyers, the same as anyone else in the population.
If you mean that “we lawyers” assume people innocent until proven guilty, then I have to disagree. Maybe — and I say maybe — “we defense lawyers” assume people are innocent until proven guilty (or at least pretend to for the sake of our clients, or jobs). Yet not all attorneys are defense attorneys; some are prosecutors.
I don’t know a single prosecutor (even the straight-arrow “nice” ones) who really starts from the proposition that anyone is innocent until proven guilty. If they did, I suppose they couldn’t do their jobs, so I don’t really fault them for that. At least at the point where you’re trying to prove guilt, you have to be assuming guilt.
So, anyway, I don’t really agree that we treat each other differently. I think the government, which (for me, anyway) includes regulatory agencies, increasingly assumes guilt. It’s easier for them than having to prove it all the time.
I will disagree with you, then. Regardless of what prosecutors truly feel, every single one of them is aware that one is innocent until proven guilty. That they’ve made up their mind on someone’s guilt based on the evidence they have is of no matter. Lawyers – all lawyers, know that presumptions are dangerous and contrary to the burden of proof.
I know plenty of attorneys admitted in NY who do not practice law here, or anywhere else for that matter. They are in business, CEOs, etc. I would imagine that it would be pretty easy for them to establish that they don’t practice law in NY.
My take on it is if you are in private practice anywhere and admitted in NY, then you should be meeting the CLE requirements.
That leaves out public defenders.
OTOH, what happens when you take the position that you are not practicing law in NY, then you write a demand letter for a buddy to a New York defendant. Hmmm, what ARE the penalties for not completing the CLE?
But is it? If the Bar Association (and this is a very far fetched hypo) gets it in its head that you practice at night or on weekends…how do you NOT prove it? And that last paragraph is precisely the problem. How do you prove that you did NOT give advice to a “friend” in NY about his personal dispute?
Because according to their rules, that subjects you to CLE requirements:
That was sort of my point. If you are admitted in NY, take the CLE. No sense wasting your time fighting a bar complaint when you could have taken the CLE.
We have been doing it for a while now. Take courses that are ancillary to your main practice area, and you actually wind up learning something new. Or go to a three day conference. I get all of my CLE’s at the securities conference every year.
Actually, look at it another way. Yes, making someone prove a negative is stupid. The answer? They are not going to remove the presumption, they are simply going to remove the exemption.
“Oh, good point. The exemption is stricken, and all attorneys who are admitted to practice law in the State much complete the CLE requirement.”
I think this is what’s known as a Barrier to Entry in economics circles. It’s a scheme to protect the income of a group of people practicing a certain trade by preventing other people from engaging in the same trade.
If you’re a full-time lawyer in New York, 32 hours of CLE is annoying, but it’s a small price to pay to earn lawyer bucks.
On the other hand, if you’re a Connecticut lawyer looking to pick up a few bucks by doing some low-cost legal work for clients in New York…you can’t. Not without spending at least a week in New York, costing maybe $1000 or more for the course and losing a week of your day job.
It’s all justified in the name of protecting clients from poorly trained lawyers, but how much training do you really need to do some simple commercial law? Incorporation, creating and reviewing contracts, copyright and trademark, demand letters…none of it is very hard for the vast majority of routine small business cases. (In fact, all of those are things that self-employed people routinely learn to do themselves from books written by helpful lawyers.)
Wow, you clearly are not an attorney. Nothing in the law is as simple as you make it sound, and anyone who tries to practice law without keeping up on the changes in the “simple commercial law” soon finds himself behind the eight ball. Sure you can write your own demand letter, but I guarantee that there is no attorney in NY whose practice consists solely of writing demand letters. You can also review and negotiate your own contract; and remove your own appendix. You would, however, be better off with the guy who knows the law, who knows the current trends in the courts, or who is using the latest surgical technology.
And it certainly is not an economic barrier to anyone. It’s not 32 hours, it’s 16. You can do it online at your leisure, and you can do it in person, for free.
And it certainly is not an economic barrier to anyone. It’s not 32 hours, it’s 16. You can do it online at your leisure, and you can do it in person, for free.
My mistake about the 32 v.s. 16 hours, sorry. And the way Gideon was concerned about it, I assumed the courses were more difficult to take. I’ve seen CLE courses priced out at $30-40/hr elsewhere, but obviously I’m not real familiar with how this stuff works.
As for the rest of my comment, my point wasn’t intended to be that anyone can do legal work, but rather that not all legal work requires the best-trained and most-experienced lawyers. To use your surgical example, a few years ago I needed to have a cyst removed from my back. Do you think I used the best surgeon in the state?
Actually, my real point was that while most forms of professional regulation may start out as a way to protect consumers from unskilled or unscrupulous providers, inevitably a certain amount of protectionism creeps in, often in the form of barriers to newer, less costly sellers.
A classic example is laws that only allow funeral directors to sell caskets. Certainly, you need expertise to handle dead bodies safely, but anyone can sell a wooden box.
It’s 32 hours for the first two years @ 16/year. 24 thereafter.
It still requires a commitment – both of time and money. I disagree with Mark above that it’s a breeze. It’s not. Going to a 5-6 hour seminar every now and then takes some effort and planning, so I can imagine doing 16 hours a year.
The point about the demand letter was that that is all it takes to subject you to the CLE requirements. And what about some purely verbal advice given to a friend having legal problems in NY? Does that subject one to CLE requirements? If I gave advice to my cousin who lives in NY, will I have to do 16 hours a year? That’d be a terrible imposition (if online CLE credits are not available).
Is providing the documentation necessary to prove you don’t practice law in NY considered practicing law in NY?