Thomas B. Griffith, President Bush's nominee for the federal appeals court in Washington, has been practicing law in Utah without a state law license for the past four years, according to Utah state officials.
Griffith, the general counsel for Brigham Young University since August 2000, had previously failed to renew his law license in Washington for three years while he was a lawyer based in the District. It was a mistake he attributed to an oversight by his law firm's staff. But that lapse in his D.C. license, reported earlier this month by The Washington Post, subsequently prevented Griffith from receiving a law license in Utah when he moved there.
Under Utah law, Griffith's only option for obtaining the state license was to take and pass the state bar exam, an arduous test that lawyers try to take only once. He applied to sit for the exam, but never took it, Utah bar officials confirm.
Utah State Bar rules require all lawyers practicing law in the state to have a Utah law license. There is no general exception for general counsels or corporate counsels. Lawyers who practice only federal law or whose work is solely administrative can avoid the requirement in some cases.
Griffith has declined to discuss the matter, which is expected to be a subject of his nomination hearings tentatively scheduled for next week. But a Justice Department spokesman said Friday that Griffith sought advice from Utah State Bar officials when he inquired last year about obtaining a license, and followed their suggestions for avoiding any ethical missteps.
"The Utah State Bar advised him that to the extent that his duties as general counsel involved giving legal advice, he ought to closely associate himself with a Utah bar member," Justice spokesman John Nowacki said. "It has been Mr. Griffith's practice to closely associate himself with a Utah bar member when giving legal advice."
Nowacki declined to comment on whether the state bar advised Griffith to take the bar exam. According to sources familiar with a letter the state bar wrote to Griffith last year, bar officials recommended that Griffith take the exam, and work closely with a Utah bar member while his license application was pending.
Griffith discovered in November 2001, a year after he joined Brigham Young, that his District law license had lapsed several years earlier, in 1998, for failure to pay his dues. He immediately paid his dues and renewed his D.C. license, Nowacki said. But for the first year in Utah, he was advising Brigham Young, a Mormon university in Provo, without a current law license from any state.
A lawyer who specializes in legal ethics said Griffith's two licensing lapses should disqualify him from a lifetime appointment to one of the nation's most important federal benches, second only to the Supreme Court.
"This moves it for me from the realm of negligence to the realm of willfulness," said Mark Foster, a Zuckerman Spaeder attorney who represents lawyers in ethics matters. "People who thumb their noses at the rules of the bar shouldn't be judges."
One veteran law professor said the two incidents raised significant questions, but that "in and of itself, it is not disabling."
"It begins to look like a pattern of carelessness," said Paul Rothstein, a law professor at Georgetown University Law School. "It should cause your red flags to go up to see if there are other signs of carelessness."
Several lawyers from respected D.C. law firms, and former U.S. Court of Appeals for the D.C. Circuit chief judge Abner Mikva, have written public letters in defense of Griffith's D.C. licensing lapse, calling it a minor mistake. "In our opinion, this matter does not raise a question concerning Tom's fitness to serve on the bench," wrote a group of Williams & Connolly lawyers.
Griffith, 55, is a member of the Republican National Lawyers Association and was the lead counsel for the Senate during the impeachment trial of President Bill Clinton. Married and the father of six, he is a former partner at the D.C. firm of Wiley Rein & Fielding, whose partners served in prominent positions in past Republican administrations.
Most lawyers arriving in Utah are allowed to get reciprocal state licenses, but Griffith did not meet the Utah State Bar requirement that he be a lawyer in good standing in his previous state for three of the previous four years.
Joni Seko, deputy general counsel for the Utah State Bar, said most general counsels overseeing legal work for a university, organization or corporation are required to have licenses because they offer legal advice on a range of subjects, including state law.
"It would surprise me that a general counsel would not get involved in those [state] decisions," she said. "Even in a management capacity, that person would likely have to sign off on major contracts. To do that, you engage in the practice of state law."
Katherine Fox, the bar's general counsel, declined to comment on Griffith's specific situation. She said typically she would ask a general counsel moving into the state about the nature of his work and, if it were broad in nature, she would advise that he obtain a state license. "It is just too easy to cross the line" from managing to providing legal services, she said.
"Unless they were doing things in which they were never practicing law, they need to get licensed," she said.
According to Brigham Young's Web site, Griffith "is responsible for advising the Administration on all legal matters pertaining to the University. . . . The General Counsel directs and manages all litigation involving the University."
On his nomination questionnaire, in an answer about the "general nature of [his] law practice," Griffith lists that he has worked on "higher education law" from 2000 to the present.
A review of state bar membership shows many general counsels for other universities in Utah have their state's bar license. That includes John K. Morris of the University of Utah, Craig J. Simper of Utah State University, and Kelly De Hill of Westminster College. Griffith's predecessor at Brigham Young, Eugene H. Bramhall, has been a member of the Utah bar since 1981.