Legal Commentary

I wrote a few weeks ago about whether lawprofs count as lawyers. There is, in my opinion, no right or wrong answer to this question, but one distinction between the two is clear: you have to be a bar member to do much of the work of a lawyer, but you don?t have to be a bar member to work as a law professor. Indeed, some law professors, such as HLS?s Duncan Kennedy and Scott Brewer, have never even taken a bar exam.

That said, I?d wager that most law professors are bar members, and I?m no exception, having been a member of the California Bar since 2003. When I was working at a firm, this was a requirement, but since I left for academia, it obviously isn?t any longer, and I?ve grown ambivalent about whether it makes sense to maintain active bar membership status (primarily because of the high cost of bar dues: $410 last time around and going up every year).

Fortunately, there is a middle ground. California, possibly like other states (I haven?t checked), permits members to opt for ?inactive? status. This allows members to pay lower bar fees (only $125 as opposed to $410), but precludes them from actively practicing law (can?t appear in court, represent clients, sign court submissions, etc.). If you want to change back to active bar status, you simply apply and pay the full dues for that year.

Since I have no short-term plans to practice law, my sense is that changing my status to inactive makes sense. My question to the broad and esteemed Prawfs readership is if others have made the same move and/or have strong opinions about it. I explore a couple possible objections below the fold.

First, while I have no short-term plans to practice law (in the same formal sense that some law profs are affiliated with firms or take on pro bono cases), I wouldn?t necessarily be against a limited consulting gig if an interesting opportunity came along. Would this kind of informal advising amount to unauthorized practice by a bar non-member? Are there other activities that law profs do on a regular basis (other than traditional client representation) that could run up against unauthorized-practice restrictions?

Second, are there any expressive or communicative costs to inactive status? I had an interesting conversation with a recent Southwestern graduate about the challenges of the California bar, and she suggested that students (at least at our school) want and expect their professors to have passed the bar. Her reasons were that the bar should be a mandatory rite of passage for all members of the profession, including professors; and that bar membership represents a standard of minimum competency that lends credibility to those teaching the law. Even if one regards her observations as reasonable and typical of students, though, I?m not sure they make any difference with respect to the active/inactive distinction. I understood this student?s objection to be about professors not assaying the bar at all, not passing the bar and then choosing a more limited status.

As the above discussion makes clear, there don?t seem to me any reasons that opting for inactive status would be problematic. I wrote this post to see if I?m overlooking any reasons that it might be, and to see if other law profs have opted for inactivity themselves.