Though his law license is not active, DFL attorney general candidate Keith Ellison has completed the 45 hours of continuing legal education credits needed to get it reactivated, according to a campaign spokesman.
Ellison also has filed a plan with the state Board of Continuing Legal Education that commits him to an additional 45 hours of CLE training, said Sam Fettig, Ellison’s communications coordinator.
Though she wouldn’t comment specifically on Ellison, CLE Board Director Emily Eschweiler confirmed that those two steps would put an attorney on track to reviving a voluntarily inactivated law license.
Ellison’s license to practice has become something of a conservative meme. It was broached during Sharon Anderson’s unsuccessful primary bid for attorney general. She filed a petition with the Lawyers Professional Responsibility Board to revoke Ellison’s eligibility because he lacked CLE credits and carried an inactive license. But Anderson said last month that effort had failed.
Ellison’s general election opponent, Republican Doug Wardlow, took the issue up on Monday. A Wardlow press release claims that Ellison “surrendered” his law license and then falsely stated that members of Congress must give up law licenses upon taking the oath of office.
Wardlow also maintains that Ellison has a 180-hour deficit in his CLE requirements.
“It could take Keith Ellison years to take all the make-up classes he would need to get his law license back,” the campaign said in a press release. “He may never be able to practice law in Minnesota again.”
Based on information supplied by the CLE Board, however, that statement likely is incorrect.
Ellison voluntarily inactivated his Minnesota law license, according to the Lawyers Professional Responsibility Board, though it doesn’t indicate precisely when. The LPRB website confirms he is currently unauthorized to practice law in Minnesota.
But that is not unusual, according to Eschweiler. Many lawyers who leave the state or take jobs in other fields voluntarily deactivate their law licenses, she said.
Ellison is not even Minnesota’s only congressional member to voluntarily do so. U.S. Sen. Amy Klobuchar, the former Hennepin County attorney, also has inactivated her law license. U.S. Rep. Tom Emmer, admitted to the bar in 1988, is likewise unauthorized to practice law in Minnesota. His status is listed as “resigned.”
Being on voluntary restricted status essentially means that an attorney has elected not to keep up with CLEs, Eschweiler said. “Voluntary restricted is considered to be inactive but in good standing,” she said.
It is not clear if Wardlow’s 180-hour tally of unfulfilled CLE credits is accurate. The total is based on a belief that Ellison’s gave up his license in 2012, according to the press release. But Wardlow’s spokesman Billy Grant said Monday that it might have been deactivated as early as 2006. So Ellison might lack an even more credits, he said.
Either way, it likely won’t matter. To fulfill all his commitments, Ellison likely would need to earn no more 90 total CLE credits.
Rule 12 of the Continuing Legal Education Board’s rules does state that to be automatically transferred to active status, attorneys must make up all unfulfilled CLE hours. But automatic transfers aren’t the only path to reinstatement.
Rule 12 also permits a “discretionary transfer,” which allows the CLE board director to activate a license without forcing the attorney to make up every missing credit hour. There are guidelines to follow, Eschweiler said, but it can be done.
“What the rule states is that lawyers can come back to active status upon taking 45 credits,” Eschweiler said. “Then they would have a number of credits to make up in addition to that—up to 90 credits.”
Of the initial 45, three must be ethics credits and two bias-training credits, she said; no more than 15 can be on-demand. Once the first block of 45 credits is complete, the attorney must submit a plan to earn the remaining 45, she said. The lawyer has up to a year to complete them, Eschweiler said.
So even if Wardlow is right and Ellison skipped 180 CLE credits after going to Washington, he likely can get by making up just half that many—90—exactly the number Fettig says Ellison has committed to earning.
David Schultz, the Hamline University professor and six-year former CLE board member, said he sees nothing strange going on there. Lawyers often were allowed to avoid earning all missing credits when he was on the board a decade ago, he said.
“I never recall telling somebody that you had to basically make up for all the credits for all the years that you weren’t active,” Schultz said.
Wardlow’s assertion Monday that Ellison falsely claimed Congress requires lawyers to surrender their licenses could not be verified. As evidence for the claim, Grant forwarded a snippet from a Detroit Lakes newspaper.
It reads: “Congressmen are not allowed to continue practicing law, so Ellison let his law license lapse and will earn continuing education credits at the University of Minnesota to get it fully reinstated.”
Grant suggested that passage backs up the Wardlow campaign’s charge that Ellison lied. But the story does not actually attribute the passage to Ellison.
In Monday’s press release, Wardlow said that the clerk of the U.S. House does not require licensed professionals with House seats—be they lawyers, doctors or electricians—to surrender their licenses before taking the oath of office.
Yet several parts of the U.S. House Ethics Manual could lead lawyers in Congress not to commit the time needed to maintain home-state CLE requirements.
Pages 197-98 of the manual’s 2008 edition say that lawyers’ fiduciary duties make continued representation of clients “particularly susceptible to conflicts with the wide-ranging responsibilities of members.”
On pages 214-215, the manual states that U.S. House members are prohibited “from engaging in professions that provide services involving a fiduciary relationship, including the practice of law.”
None of that suggests lawyers must stop practicing law upon entering Congress, Grant said in an email Tuesday. “Members of Congress can practice law pro bono,” he wrote.
That may be true, Schultz said, but pro bono work does not relieve lawyers of their fiduciary responsibilities or the conflicts associated with them. Regardless, the professor said, rules against congressional members holding outside jobs generally have been in place for generations. That’s why lawyer-legislators in Congress frequently ask to have law licenses voluntarily inactivated, he said.
“Especially if they have CLE requirements, they’ll just ask for a suspension of the license,” he said. “So it is not uncommon at all for this to occur.”