Zoe Baird and Thomas Griffith

Zoe Baird and Thomas Griffith stand and fall together. In 1993 Pres. Clinton nominated Zoe Baird for the position of Attorney General. Ms. Baird withdrew her nomination when it became known that she had failed to pay taxes for her domestic employees (who, in fact, lacked proper work papers). Her initial defense was that the failure to pay employment taxes was an oversight. Properly, that defense was rejected by the public and by the political world. Indeed, the senators from Zion were vocal in their opposition to Ms. Baird’s confirmation. (Kimba Wood’s nomination was derailed for similar reasons.) My view then was that Baird should not be confirmed as Attorney General. It is was inappropriate to have as Attorney General someone who had not only broken the law but had broken a law which would be grounds for dismissal of employees of the DOJ and which would bar employment at lower levels. In other words, the Attorney General ought to follow the law. I did not think that someone willing to cut the line out of convenience should hold that job.
Thomas Griffith, a current nominee to the Court of Appeals for the District of Columbia, practiced law in the District of Columbia for three years (1998 to 2001) without a license. Practicing law without a license is a crime in many states. In the District of Columbia, unauthorized practice of law seems to be governed by the courts rather than statute and so handled through contempt proceedings. See D.C. Ct. App. Rule 49. Griffith violated Rule 11 of the Bar by failing to pay his fees, thereby forfeiting his license to practice law in D.C. Loss of one’s license for failure to timely pay dues is not what I would describe as moral turpitude. Mr. Griffith was not bent on some fraud. But neither was Zoe Baird. His oversight – and it is important to remember that the oversight was his, not some clerk’s – was, in the scheme of things, on the small side. But it was an oversight and it did mean that for three years he was engaged in the unauthorized practice of law.
I think this disqualifies him from a place on the bench for reasons that are parallel to the reasons that disqualified Zoe Baird from the position of Attorney General. As a judge, Griffith would be charged with enforcing the procedural requirements of litigation. A complaint filed a day after the statute of limitations must be dismissed. An appeal filed a day late must be dismissed. If he sits on the bench, he will be called on to enforce those rules, and he will. Lawyers appearing in his court will be held to a standard he could not meet. The failure to timely file is the lawyer’s failure. Ultimately, the lawyer is responsible for the calendar, not a clerk even though it is normally a clerk who calendars due dates. It was Griffith’s responsibility to ensure that he stayed in good graces with the Bar, his responsibility to pay the dues and to attend sufficient Continuing Education courses. He failed. It would be inappropriate for him now to sit on the bench, enforcing rules he could not abide by when in practice.
It is worth noting that Griffith is not a member of the Bar in Zion, although he has been the General Counsel of BYU for some time. His story is that he was too busy to sit for the exam. With a pass rate in the 90’s, and two exams a year, I find this implausible.
Zoe Baird had the good sense to withdraw. Mr. Griffith ought to do the same.