McCain Camp Lawyer Illegally Advising In Alaska; Palin Attorney General In Hiding (Mitchell / HufPo)

[struggle4progress]

Donald Craig Mitchell
Posted September 23, 2008 | 02:41 PM (EST)


... The first new development was the decision by the McCain presidential campaign to fly New York City attorney Edward O'Callaghan into Anchorage to elbow Palin attorney Tom Van Flein aside and assume command of the governor's effort to run out the clock on the investigation until after the November election.

O'Callaghan told Newsweek that "he and another McCain campaign lawyer (whom he declined to identify) are serving as legal 'consultants' to Thomas Van Flein, the Anchorage lawyer who at state expense is representing Palin and her office in the inquiry. 'We are advising Thomas Van Flein on this matter to the extent that it impacts on the national campaign. I'm helping out on legal strategy.'"

The pickle O'Callaghan's wagging tongue has gotten its owner into is that, pursuant to Alaska Statute 8.08.230, a person who is not a member of the Alaska Bar who while physically present in Alaska "engages in the practice of law" is guilty of a class A misdemeanor. And in Alaska the "practice of law" includes "rendering legal consultation or advice."

It would be interesting to know what John McCain thinks about having a criminal serving on his legal team. It also would be interesting to know whether Talis Colberg, Sarah Palin's attorney general, intends to prosecute O'Callaghan. And if he doesn't, why not? ...

http://www.huffingtonpost.com/donald-craig-mitchell/mccain-camp-lawyer-illega_b_128663.html

[jberryhill]

1. He will claim "association and supervision" of an Alaska bar member

As long as he has a local "supervisory" attorney, he's in the clear.

[struggle4progress]

3. Maybe. I can't find that specific language, but I'm not a lawyer: and although

your specific claim might be wrong, the overall gist of your remark may be correct. AS 08.08.210 clearly limits who may practice law in Alaska, though it defers some definition to the state bar; and AS 08.08.230 identifies unlawful practice as a misdemeanor. The state bar's definition therefore matters: it is given in Rule 63, which at least says "for compensation, providing advice or preparing documents for another which affect legal rights or duties," though considered in toto it really might be more circumspect. So perhaps I should have double-checked before posting the link above


AS 08.08.210. Who May Practice Law.
(a) A person may not engage in the practice of law in the state unless the person is licensed to practice law in Alaska and is an active member of the Alaska Bar. A member of the bar in good standing in another jurisdiction may appear in the courts of the state under the rules the supreme court may adopt.
(b) The practice of law shall be defined in the Alaska Bar Rules.
(c) This section and AS 08.08.230 do not apply to the practice of law for the legislature by a person employed by or under contract with the legislature until the results are released of the third Alaska Bar examination following that person's employment.
(d) Employees of the Department of Law, the Public Defender Agency, and the office of public advocacy, whose activities would constitute the practice of law under this chapter and under Alaska Bar Rules are required to obtain a license to practice law in Alaska no later than 10 months following the commencement of their employment.
http://touchngo.com/lglcntr/akstats/Statutes/Title08/Chapter08/Section210.htm


AS 08.08.230. Unlawful Practice a Misdemeanor.
(a) A person not an active member of the Alaska Bar and not licensed to practice law in Alaska who engages in the practice of law or holds out as entitled to engage in the practice of law as that term is defined in the Alaska Bar Rules, or an active member of the Alaska Bar who wilfully employs such a person knowing that the person is engaging in the practice of law or holding out as entitled to so engage is guilty of a class A misdemeanor.
(b) This section does not prohibit the use of paralegal personnel as defined by rules of the Alaska supreme court.
http://touchngo.com/lglcntr/akstats/Statutes/Title08/Chapter08/Section230.htm


Rule 63. Unauthorized Practice of Law-AS 08.08.230.
For purposes of AS 08.08.230 (making unauthorized practice of law a misdemeanor), "practice of law" is defined as:
(a) representing oneself by words or conduct to be an attorney, and, if the person is authorized to practice law in another jurisdiction but is not a member of the Alaska Bar Association, representing oneself to be a member of the Alaska Bar Association; and
(b) either (i) representing another before a court or governmental body which is operating in its adjudicative capacity, including the submission of pleadings, or (ii), for compensation, providing advice or preparing documents for another which affect legal rights or duties.
(SCO 924 effective January 15, 1989)
http://touchngo.com/lglcntr/ctrules/barules/BAR-66.htm#P1153_236933

[jberryhill]

7. It's the same in every state...

...otherwise the practice of law would be ridiculously nutty (and, as a lawyer, I can tell you it is pretty nutty already)

Notice that the statute does not forbid the use of paralegals by attorneys. An out of state lawyer is not disqualified from assisting practice of an admitted attorney in that state.

[SDJay]

8. Yep. You're right.

It's called 'pro hac vice,' and it basically means that he can do what he wants as long as he has an agreement in place with a AK bar-admitted attorney to 'oversee' his work. A question could be whether this is technically 'in litigation,' but subpoenas have been issued, so that could be a gray area, like everything else done by McCrap/Churchy Spice.

*edit* I see the same point has been covered thoroughly below. My bad.

[ChairmanAgnostic]

2. the attorney general himself is the local attorney, in this case.

[Dinosaur13]

4. Who represents Todd and the other folks who refused to honour the

subpoenas? Taxpayers shouldn't pay for those folks' representation.

[DeschutesRiver]

5. There is a procedure for a temporary "admission" to the AK Bar, as in other states too

This procedure is called Pro Hac Vice, and allows an attorney to practice in a state where he/she is not admitted, limited to representation for a particular case only. States have different requirements for an attorney who seeks to do this. So maybe I am not understanding what Huffington is getting at, or maybe they didn't know about pro hac vice admissions?

I assume the attorney from the McCain camp paid the fees and filed the paperwork; of course, given the McCain campaign's disregard of such issues as, oh, say remembering to get permission to use music before swiping it, who knows.

Here is AK's version, Rule 81 (can find it at the Alaska Bar Association):

State Court Pro Hac Vice: "Motions to Participate" Under Civil Rule 81

Attorneys filing motions to participate under Civil Rule 81 must pay an annual administrative fee of $410 to the Alaska Bar Association. The fee is $410 per attorney, per case, per year.

Step by Step Procedure:
The following items must be delivered to the Alaska Bar office PRIOR to filing any paperwork with Alaska Court System:

a copy of the motion to participate. Click here for a sample Rule 81 Motion.
a copy of a Certificate of Good Standing for the out of state attorney
a check in the amount of $410, payable to the Alaska Bar Association

Once the above is received, a receipt will be issued and the Alaska Bar Association will keep the copies.

Under Civil Rule 81, the Court requires proof of payment to the Alaska Bar Association before the attorney is allowed to participate. Thus, the receipt and the original documents need to be delivered to the Court.

Attorneys will be invoiced for the fee annually until the attorney notifies the Bar Association that the case in which the attorney is participating is closed or the attorney has withdrawn.

[Sanity Claws]

6. Admission pro hac vice is for litigation.

Courts have a procedure that will allow an out of state attorney to associate on a case. The attorney must file a petition asking to be admitted for the purpose of this particular case; the petition must be supported by a local attorney who is mainly responsible for the case. All pleadings must be signed by the local attorney.
Because this particular matter is not in a court setting, I think that the NY attorney is illegally practicing in Alaska.
A complaint can be filed against the illegally practicing attorney in his own state, NY, because it has jurisdiction over him.
Anyone here want to file a complaint with the New York State Bar?

[jberryhill]

9. To be technically precise

(although see my comments above on association and supervision...)

The complaint would be filed with the Alaska bar. The New York courts regulate the practice of law in New York by New York attorneys in accordance with the New York rules of professional conduct. The New York bar does not care what a New York attorney does in Alaska. If an individual is engaged in unauthorized practice in Alaska, that is a matter for the Alaska bar.

The NY bar does not regulate the practice of law in Alaska.

I have pursued just such a complaint against an NJ attorney who was engaged in unauthorized practice in VA (and filed the complaint with the VSBA disciplinary committee).

However, as long as their is a local attorney with whom the out of state attorney has associated for a "supervisory" role, it's perfectly kosher. A local attorney can engage and employ paralegals, assistants, and whomever they might like. Just because someone has an out-of-state bar ticket does not qualify them from being engaged and employed by an Alaska attorney as a consultant.

[Sanity Claws]

10. I had a different experience

We had a Chicago attorney admitted pro hac vice in Washington State who was off the wall. Absolutely crazy. Washington State Bar said it had no jurisdiction over him so we filed in Illinois. The Illinois Bar Association did investigate. Apparently we had different experiences because we filed complaints with different state bars. I have no idea of how New York State would handle this.

Getting back to your other remarks, perhaps out of state attorneys can be consulted but the local attorney must be responsible. It seems that the local attorney is AWOL.

[jberryhill]

13. If it was "pro hac" for a particular piece of litigation

...then the judge in that proceeding is directly responsible for his discipline.

[DeschutesRiver]

12. We've had experience with the non-admitted, association deal as well

years ago, and it was fine too. You just can't go appearing in a courtroom without taking the right steps first. Thus the only problem I could see is if they were planning to block this in court, and I was pointing out that that is easily resolved.

I just don't think this is an issue nor is it going to be one. Unless there is some new quirk in AK law of which I am unaware.

[curious one]

11. Can someone sue the McLame's camp?