Daily Muddies the Legal Waters

Janet Engvall McTigue

A new election spat took shape last week, pitting Janet Engvall McTigue, Democratic candidate for Williamson County Attorney, against the Austin American-Statesman and the daily's Williamson Co. editor, Gary Susswein, in which the daily has apparently sidestepped a legal roundhouse with national implications.

On Oct. 22, the Statesman published a piece by reporter Melissa Ludwig detailing several "new questions" about McTigue's career and her legal experience. According to the daily, there are discrepancies between what McTigue has said about her professional experience and what "public records show" to be her real experience. As evidence, the daily reported that McTigue's Web site says that "she has been a licensed attorney for 14 years and has experience in executive management, finance and law – most of that in California" when in fact she has only been "licensed to practice law in any state for only about two years."

Further, the daily posits that McTigue's résumé lists her as having been the "in-house counsel" for the Neptune Society, a cremation provider in California, where she was "giving legal advice, drafting contracts and representing the company in worker's compensation hearings," the daily reported. However, the article charged, "McTigue has never been a member of the State Bar of California" and wasn't "an active member of any bar" when working in California and therefore, the daily concludes, may have been guilty of practicing law illegally.

McTigue says that the charges are "absolute nonsense" and argues that the language the daily used simplified the story and made her look like a liar. "The whole thrust of the article was, 'Here's a criminal running for office.'" McTigue says that she has never been a member of the California bar, but that she has maintained her Texas license since 1990, but placed it on "inactive" status while she was working out of state – meaning she wouldn't have to travel back and forth from California several times each year to attend Texas continuing legal education classes. McTigue reactivated her license late last year. Further, McTigue says that while at Neptune she was employed as vice-president for legal and corporate affairs, where she managed the company's legal business, consulted on workers' comp issues, and attended to a variety of other legal needs. But she was not a practicing in-house attorney, she said, and therefore did not need a California license. The story did not carry a response from McTigue. With one broad stroke, she said, the daily "trashed my entire career."

Shortly after the paper hit newsstands, McTigue fired off an e-mail to Susswein, writing that the article was an "example of a young reporter [Ludwig] being used as the mouthpiece" for the Williamson Co. Republican Party. County GOP Chair Bill Fairbrother provided the Statesman (and the Williamson County Sun) with a packet of materials regarding McTigue's licensing and credentials, and McTigue wrote that the daily relied on those "smear attacks provided ... by partisans" to report the story, instead of relying on its own "investigative work."

In an e-mailed response, Susswein said that the story was supposed to have a comment from her, but that it was inadvertently deleted during the editing process. (A short – and, McTigue charges, "inaccurate" – correction ran the following day.) However, Susswein wrote that in reference to some of her "other claims," the paper was going to stand by their reporting and story – including the conclusion that McTigue likely violated the law by not maintaining a law license while working in California. For that conclusion, the daily interviewed Diane Karpman, a California attorney and legal ethics guru who, among other things, writes about ethics for the state's bar magazine.

In the Oct. 22 article, the daily reported that without a California license, McTigue "should not have been performing legal duties." According to the paper, Karpman said that state law is clear about the need for a license, but that in-house lawyers "frequently skirt regulations," but are unlikely to "be caught" unless their employers complain. "You have to have an active license or it is false representation," Karpman told the Statesman. "[T]here's clearly an open question about whether you illegally practiced law or skirted regulations in California," Susswein wrote to McTigue. "Ms. Karpman, an independent expert, believes you did; you say you didn't."

However, when contacted by the Chronicle this week, Karpman said that the licensing question is actually more complicated. "Technically," she said, even if McTigue wasn't working as an in-house counsel, but was "giving legal advice" while working in California, she would be violating the state's law regarding "unauthorized practice of law." Texas and California (along with Florida) have "on paper" among the nation's most "aggressive" statutes regarding practicing without a license, she said, but the laws have proved untenable. Indeed, in 1997 Texas pursued – and lost – an unauthorized-practice suit against the California-based Nolo Press publishing company, contending that the company's software product, Living Trust Maker, offered customers legal advice, and not just legal information. (Texas lawmakers in 1999 amended the law, exempting so-called "self-help" law products.)

In short, the unauthorized-practice laws need some serious tweaking. "The laws ought to be changed," Karpman said, because they are "antithetical to client needs." In a "global world," she said, the isolationist-style UPL laws cause major headaches for lawyers who are sworn to uphold the law but who often represent clients in states and countries where they are not licensed. Some states, such as Washington and Oregon, have begun to address the issue by signing "crafting" agreements, allowing lawyers licensed in one state to practice in another.

Still, she said, the problem of the various and unwieldy state UPLs is far from resolved – and in this election season, she said, it may trap thousands of lawyers in its clutches. Both the Democratic and Republican parties sent lawyers to Florida to monitor the 2000 recount and are currently dispatching lawyers to various states in order to monitor the Nov. 2 elections. Many of these attorneys have been or will be sent to offer legal advice in states where they are not licensed to practice law. "It's a big problem," Karpman said.

Meanwhile, McTigue is frustrated and angry. The daily failed to present the whole story, she said, and they don't seem to care. "They got their story out there ... and walked away from it," she said. "And the damage is done."