Hayward on Election Day Volunteerism as Unauthorized Practice of Law

Allison Hayward (George Mason, right) has posted Election Day at the Bar on SSRN.  Here is the abstract:

Since the 2000 election, nationalparties and a number of special interest groups have changed how they”lawyer up” for election day. They recruit nationally for attorneys towork in whatever “hot spots” develop. Yet in key jurisdictions theiractivities may amount to the unauthorized practice of law (“UPL”). UPLdiscipline of these attorneys may seem unlikely so long as allparticipants in elections desire to mobilize these volunteers. Yetenforcement could be triggered once local interests who rely onsuppression or fraud recognize that outside volunteers will cause themto lose their edge. Or an isolated instance of selective enforcement inone jurisdiction (perhaps a place that allows private actions toenforce professional ethics rules) could inspire actions elsewhere. 

Asin so many other aspects of American political life, volunteers arevaluable and necessary here. By imposing unevenjurisdiction-by-jurisdiction standards, state-based UPL rules confuseparticipants. They also discourage the development of trained nationalelection-day experts, skilled in the federal rules applicable toelections and voting, familiar with the kinds of issues that arise onelection day, and – perhaps most overlooked – with a stake in thesmooth functioning of American elections over time. In an area ofincreasing federal concern, it makes sense to move away from relying onelection-day lawyering from local partisan non-specialists and regionalpolitical supplicants. 

Can the situation be improved, or arethese vagaries the necessary consequence of an intransigently parochialelection – and ethics – regime? While a national ethical code wouldalleviate the disparities, for many reasons that particular reform isunlikely. This paper suggests a much more modest proposal, throughestablished ethics reform channels (i.e. the American Bar Association)that would not just clarify the position of election-day volunteerattorneys, but insulate other very limited and casual “practice”situations from professional discipline. Without some change, theenforcement of UPL rules against election-day attorneys would seem tobe a matter of time. Then the following chill on participation will befelt everywhere and ultimately voters will lose the benefit of thisactivity.

Interesting subject.  I’d assume that there are lots of activities that are not legal in nature – poll watching, etc., but that giving advice as to the legal significance of circumstances that arise in the course of the day would be practicing election law.  Then the question would be whether one of the exceptions applies.

[Jeff Lipshaw]