Did serving as a law school dean, rather than working at a traditional law firm, count as 'practicing law' for someone running for Maryland Attorney General?

Plain-English summary

Dean Michael J. Kelly of the University of Maryland School of Law asked the Attorney General whether his career, which had not been spent in a conventional law office but instead as an in-house corporate attorney, a mayoral counsel, and since 1975 a law school dean, satisfied Article V, §4 of the Maryland Constitution's requirement that a candidate for Attorney General have "resided and practiced Law in this State for at least ten years." No prior case or opinion had construed that phrase. The Attorney General traced the eligibility clause back to Maryland's constitutions of 1776, 1851, 1864, and 1867, and found the historical record inconclusive about the precise forms of legal work the framers meant to require, beyond a general sense that the Attorney General should be someone "steeped in the law." The opinion then reasoned that the office and the profession itself had transformed dramatically since 1864, when the Attorney General personally handled every piece of the State's legal business and was expressly forbidden from hiring assistants, into a modern office of over 200 lawyers where the Attorney General functions largely as manager and policymaker. Applying that evolving understanding, and drawing on Maryland case law construing other constitutional terms in light of changed conditions, plus decisions from other states treating judges, court referees, and law teachers as satisfying similar "practice of law" eligibility requirements, the Attorney General concluded that Dean Kelly's teaching, legal counseling, bar association committee service, and legally-informed administration of the Law School, taken together, met the constitutional threshold.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did a law school dean have to have worked in a traditional law firm to run for Maryland Attorney General in the 1980s?
No, according to this 1983 opinion. The Attorney General concluded that the constitutional "practiced Law" requirement was not limited to the specific forms of legal practice familiar to the framers of the 1864 and 1867 constitutions, and that a dean's teaching, counseling, and legally-grounded administrative work could satisfy it.

Why did the Attorney General look all the way back to Maryland's 1776 constitution to answer this question?
Because no case or prior opinion had ever construed the "practiced Law" eligibility phrase, and the opinion wanted to understand what the framers of each successive constitution meant by it. It found the historical debates inconclusive on the specific forms of practice required, beyond wanting a lawyer of sufficient experience and maturity for the office.

Did other states' courts ever face a similar question about whether nontraditional legal work counted as "practicing law"?
Yes. The opinion cited decisions from Georgia, Ohio, Texas, and Kentucky courts that held judges, court referees, and other legal officials satisfied comparable "practice of law" eligibility requirements for elective or appointed office, reasoning that such provisions should be construed liberally in favor of eligibility rather than used as a technical barrier.

Did the opinion evaluate whether Dean Kelly would be a good Attorney General?
No. The opinion was explicit that the "practiced Law" requirement was only a minimum threshold to qualify as a candidate, and that once that threshold was met, it was for the voters, not the Attorney General's office, to decide who was best fit to hold the position.

Background and statutory framework

Article V, §4 of the Maryland Constitution has required a candidate for Attorney General to have "resided and practiced Law in this State for at least ten years" since the wording was fixed in 1867 (the predecessor 1864 constitution set the same requirement at seven years). The opinion traced the office's history from the Constitution of 1776, which gave the Governor and council power to appoint an attorney general with no eligibility requirements, through an 1817 amendment that abolished the office entirely, to its reestablishment as an elective position in 1864. The 1864 constitutional convention debates, which the opinion reviewed in detail, focused mainly on the Attorney General's salary and the length of required practice, but consistently assumed the office would be filled by a general-practice litigator, since the 1864 and 1867 constitutions expressly barred the Attorney General from hiring any "agent, representative, or deputy."

That assumption broke down over the following decades. A 1913 constitutional amendment allowed the Attorney General to appoint deputies, and the 1916 statute creating the Department of Law authorized up to three assistants and reorganized the office around supervision rather than the Attorney General's personal handling of every matter. By 1983, the office had grown to more than 200 lawyers, and the Attorney General functioned primarily as a manager and policymaker. The opinion reasoned that construing "practiced Law" as frozen to its 1864 meaning, when legal specialization, law schools, and institutional practice did not exist in their modern forms, would frustrate the constitutional provision's underlying purpose of ensuring the Attorney General has genuine legal maturity and experience. It relied on Maryland Court of Appeals precedent applying a similarly evolving construction to other constitutional terms (voting machines satisfying the requirement that "elections shall be by ballot"; modern facilities-maintenance spending satisfying a constitutional reference to "education"), as well as out-of-state decisions holding that judges, referees, and law teachers can satisfy "practice of law" eligibility requirements for other offices. Applying that framework to Dean Kelly's specific record, which combined law teaching, informal and paid legal counseling (including as counsel to a nonprofit beekeepers' association), service on the Court of Appeals' rules committee, and administrative decisions requiring legal judgment as dean, the opinion concluded the constitutional threshold was met without needing to weigh any one component in isolation.

Citations

Statutes and constitutional provisions:

• Article V, §4 of the Maryland Constitution (Attorney General eligibility, "practiced Law" requirement)
• Article V, §3 (Attorney General's statutory duties, 1864/1867 versions)
• Article 48 of the Constitution of 1776 (original appointive Attorney General)
• Chapter 247, Laws of Maryland 1816 (1817 amendment abolishing the office)
• Article II, §21, and Article III, §32, of the Constitution of 1851
• Chapter 663, Laws of Maryland 1912 (1913 amendment authorizing deputies)
• Chapter 560, Laws of Maryland 1916 (creation of the Department of Law)
• Article 32A, §§1, 2, and 6 of the Maryland Code (current Attorney General authority)
• Article 10, §1 of the Maryland Code (bar admission requirement)
• Bar Adm. Rule 14 and Rule 14d (Maryland's reciprocal bar admission standards)
• Article I, §1, and Article VIII, §3, of the Maryland Constitution (elections by ballot; education, cited as examples of evolving constitutional interpretation)

Cases:

• Crosse v. Board of Supervisors of Elections, 243 Md. 555 (1966)
• Norris v. Mayor & City Council of Baltimore, 172 Md. 667 (1937)
• Clauss v. Board of Education, 181 Md. 513 (1943)
• County Commissioners for Montgomery County v. Supervisors of Elections of Montgomery County, 192 Md. 196, 208 (1949)
• Andrews v. Governor of Maryland, 294 Md. 285, 290 (1982)
• Gazan v. Heery, 187 S.E. 371 (Ga. 1936)
• State ex rel. Schenck v. Shattuck, 439 N.E.2d 891 (Ohio 1982)
• State by Reyna v. Goldberg, 604 S.W.2d 549 (Tex. Civ. App. 1980)
• Ervin v. Collins, 85 So.2d 852, 858 (1956)
• Application of Brewer, 506 P.2d 676 (Alaska 1973)
• Sullivan v. Kentucky State Board of Bar Examiners, 563 S.W.2d 713 (1978)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL

Eligibility Requirement, "Practice of Law", Involvement with Legal Responsibilities as Dean of Law School and in Other Professional Activities Meets Constitutional Requirement that Attorney General Have "Practiced Law".

December 19, 1983

Dean Michael J. Kelly
University of Maryland School of Law

You have requested our opinion on your eligibility, under Article V, §4 of the Maryland Constitution, to be a candidate for Attorney General in 1986. Specifically, you observe that your "legal work as a lawyer has not been in a conventional law office", and you inquire whether that work meets the constitutional requirement that the Attorney General shall have "practiced Law in this State for at least ten years".

For the reasons given below, we have concluded that your activities as a lawyer do satisfy the "practiced Law" requirement in Article V, §4.

I
Factual Background

Your letter summarizes your legal career as follows: "I have been a member of the bar of Maryland since 1968. Except for approximately ten months spent as Counsel to the Mayor of Boston in 1971, and six months in Hartford for the American City Corporation in 1970-71, I have resided and practiced law in the State of Maryland from 1968 to the present. Prior to joining the faculty of the University of Maryland School of Law in 1972 I was an attorney in the Office of the General Counsel of the Rouse Company, in-house counsel and Secretary to the American City Corporation (a wholly owned subsidiary of the Rouse Company), Counsel to the Mayor of Boston, and assistant to Mayors Thomas J. D'Alesandro III, and William Donald Schaefer of Baltimore City. Under Mayor Schaefer I was also Director of the Mayor's Coordinating Council on Criminal Justice. My major activity since 1972 has been service as a teacher of law, and beginning in 1975, as Dean of the University of Maryland School of Law. During my entire period of residency in Maryland I have engaged in legal counseling, representation, and consultation with individuals and public and private institutions, sometimes in addition to, sometimes as part of my official duties."

Appended to your letter is an illustrative listing of law-related activities. For example, during your tenure at the University of Maryland Law School, you have provided "professional advice to lawyers and law firms on matters of professional ethics", for the most part informally but occasionally for compensation. Since 1980, you have served as legal counsel to the Central Maryland Beekeepers Association, a nonprofit corporation. You are a member of the Maryland Court of Appeals' Committee on Rules of Practice and Procedure and chairman of one of its subcommittees, and you have appeared before the Court of Appeals in that capacity. In addition, you have participated in numerous conferences and other professional activities of local, state, and national bar associations.

You describe your duties as Dean of the University of Maryland Law School as including: teaching and legal research; counseling faculty and students; negotiating budgetary and other matters with University officials; advocating the interests of the Law School in other forums; adjudicating certain disputes within the Law School and writing appropriate decisions; and, in general, administering the various affairs of the Law School that are within the Dean's responsibility. Some of these administrative duties entail the exercise of legal judgment, for example, "[assessment of] federal law and regulations applicable to administration of grants and contracts with agencies of U.S. government".

II
Constitutional Provision

Article V, §4 of the Maryland Constitution prescribes the eligibility requirements for Attorney General as follows: "No person shall be eligible to the office of Attorney General, who is not a citizen of this State, and a qualified voter therein, and has not resided and practiced Law in this State for at least ten years." We are aware of no case or prior Opinion of the Attorney General that has construed the "practiced Law" eligibility requirement. In Crosse v. Board of Supervisors of Elections, 243 Md. 555 (1966), the Court of Appeals observed in passing that the Attorney General must be a "qualified vote[r], and therefore, by necessary implication, [a] citize[n] of the United States". 243 Md. at 561. The Court did not discuss any other aspect of the eligibility requirements for Attorney General. In 68 Opinions of the Attorney General 342, 347-48, we discussed the timing aspect of the eligibility requirement, "for at least ten years", but not the legal practice aspect.

III
Constitutional History

A. Prior to 1864

The Maryland Constitution of 1776 provided that "the governor . . . , with the advice and consent of the council, may appoint . . . the attorney general". Article 48. No eligibility requirements were set. In 1817 the Constitution was amended to repeal all references to the Attorney General: "[T]he duties and services now provided by law to be done and performed by the attorney general, shall be done and performed by such persons, and in such manner, as the general assembly of Maryland shall hereafter direct." Chapter 247, Laws of Maryland 1816. The Constitution of 1851 empowered the Governor, "[w]hen the public interest requires it, ... to employ counsel". Article II, §21. That Constitution also declared that "[n]o law shall be passed creating the office of Attorney General". Article III, §32.

B. The Constitution of 1864

The position of Attorney General was reestablished, and, for the first time in Maryland history, made elective, by the Constitution of 1864. Article V, §4 of that Constitution provided: "No person shall be eligible to the office of attorney general who has not resided and practiced law in this State, for at least seven years next preceding his election." Some insight into the intended meaning of "practiced law" may be gained from the debate over this and related provisions. Although the debate centered on the salary for the Attorney General and on the duration of the required legal practice, the participants couched their arguments in terms of the qualifications for the office.

The salary of the Attorney General was to be added to Article V, §3, which outlined the duties of the position. As reported by the drafting committee, this section provided as follows: "Sec. 3. It shall be the duty of the attorney general to prosecute and defend, on the part of the State, all cases which at the time of his election and qualification, and thereafter may be depending in the court of appeals, or in the supreme court of the United States, by or against the State, or wherein the State may be interested; and he shall give his opinion in writing whenever required by the general assembly, or either branch thereof, the governor, the comptroller, the treasurer or any State's attorney on any matter or subject depending before them; and when required by the governor or the general assembly, he shall aid any State's attorney in prosecuting any suit, or action brought by the State, in any court of this State; and he shall commence and prosecute or defend any suit, or action in any of said courts, on the part of the State, as the general assembly or the governor, acting according to law, shall direct to be commenced, prosecuted, or defended, and he shall receive for his services an annual salary of ___ thousand dollars[.]" 3 Debates of the Constitutional Convention of the State of Maryland 1459 (1864) ("Debates").

In the debate over the dollar figure that ought to be inserted in the blank, the proponents of a comparatively generous annual salary ($2,500 or $3,000) emphasized that a highly skilled lawyer must be attracted to the position, given the importance of the Attorney General's duties. Debates at 1460 (remarks of Negley and Bond). One delegate observed: "Now you must have for attorney general a man who is accustomed to trying cases, or he will not be fit for the office." Id. at 1461 (remarks of Stirling). Another, a lawyer himself, declaimed sarcastically: "Talk about three thousand dollars being a large sum! . . . What an enormous sum! for the whole time of a man, who, unless he is one of the first lawyers in the State, is not fit for the place. You expect to obtain a man possessing the first legal abilities of the State, and you propose to pay him fifteen hundred dollars for the performance of duties which will separate him entirely from his own private concerns." Id. at 1463 (remarks of Chambers). A skeptical Mr. Abbott rejoined: "As compared with the salaries paid for other services, I do not believe that there is a lawyer in the State whose services are worth more than two thousand dollars a year." Debates at 1463. The salary was ultimately fixed at $2,500. Id. at 1464.

The debate then turned to the length of time that a person must have practiced law to be eligible for Attorney General. One delegate proposed ten years: "I think a man who is called upon to fill this responsible position, ought to have practiced law for ten years at least. It is one of the most important and responsible positions in the State. And from the circumstances that now surround us, from the changes proposed to be made by this constitution, it is evident that we require in this position the services of one who has occupied a leading position in the profession for ten years at least." Debates at 1465 (remarks of Smith). He went on: "[A] gentleman may be learned in the law, and yet not knowing about the duties of attorney general. I think ten years is short enough time to require of one who will be called upon to apply himself to the practice of law in all its branches." Id. The proposed ten-year requirement failed. However, a seven-year requirement, "as short a time as can enable a man to fit himself for this office", said its proponent, then passed. Id.

C. The Constitution of 1867

The wording of Article V, §4 that appears in the current Constitution was adopted in 1867. The pertinent phrase, "practiced Law", was simply carried forward from the Constitution of 1864 without further amplification, although the period of required practice was increased to ten years. See Proceedings of the State Convention of Maryland to Frame a New Constitution, 137, 228, and 584 (1867).

D. Summary

The constitutional history is inconclusive as to the meaning of "practiced Law". Nothing in the 1864 debates can fairly be taken as an exhaustive, or exclusive, catalog of the kinds of legal activity that satisfy the eligibility requirement. The "practiced Law" requirement can best be understood as generally expressing the framers' intention that the Attorney General be a person steeped in the law, of sufficient legal maturity to undertake the duties of the office. Their articulation, in debate, of the necessary qualifications was quite naturally phrased in terms of the general-practice lawyering with which they were familiar. Indeed, in an era before legal specialization, large law firms, corporate law departments, and institutionalized law schools, they could hardly have done otherwise. Moreover, as we discuss in Part IV A below, they had in mind a set of duties for the Attorney General that amounted to exactly such an individual practice on behalf of the State. But much has changed since, and we believe that the constitutional requirement ought to be construed to reflect and accommodate that change.

IV
The "Practiced Law" Requirement in Light of Changed Conditions

A. Attorney General's Duties in 1864

It is certain that the framers intended the Attorney General to be the State's only lawyer, apart from the State's Attorneys elected as prosecutors in each county. The 1864 debate over the Attorney General's salary was essentially a comparison of the State funds expended for private lawyers in prior years with the salary to be paid the Attorney General in the future. Debates at 1460-63. The duties of the Attorney General included the personal conduct of litigation and the personal rendering of advice. Article V, §3 of the Constitution of 1864. Most significantly, Article V, §3 expressly prohibited the Attorney General from hiring assistants: "[The Attorney General] shall not . . . have power to appoint any agent, representative, or deputy, under any circumstances whatever." Precisely the same prohibition was included in Article V, §3 of the Constitution of 1867.

It is unsurprising, then, that the qualifications mentioned in the 1864 debates were those of a general practitioner with extensive litigation experience, in short, "one who will be called upon to apply himself to the practice of law in all its branches". Debates at 1465 (remarks of Smith). The expectation was that someone who in private practice personally handled a wide array of litigation and counseling duties, as most experienced lawyers at the time did, would personally conduct the same kind of practice on behalf of the State.

B. Evolution of Attorney General's Duties

The happy notion that the Attorney General could, alone, attend to all of the State's legal business did not survive the complications of this century. In 1913, Article V, §3 was amended to provide that the Attorney General "shall have and perform such other duties and shall appoint such number of deputies or assistants as the General Assembly may from time to time by law prescribe". Chapter 663, Laws of Maryland 1912 (ratified November 4, 1913).

In 1916, the General Assembly created the Department of Law. Chapter 560, Laws of Maryland 1916. "The head of said Department shall be the Attorney-General of the State." Id. §1. The Attorney General was authorized to hire up to three assistants. Id. §4. This statute made clear that the role of the Attorney General had changed from personal performance of all duties to supervision of a law office: "[T]he Attorney-General shall have general charge, supervision and direction of the legal business of the State, . . . and he, together with his assistants, shall perform the duties now or hereafter prescribed by the Constitution and Laws of this State .... The said assistants shall each perform such duties as the Attorney-General may, from time to time, assign to them, and the Attorney-General is hereby authorized to assign to them and each of them the performance, subject to his direction and control, of any of the duties required of him by law." Id. §§2 and 4.

The Attorney General's legal authority and responsibility are essentially the same today. See Article 32A, §§1, 2, and 6 of the Maryland Code. As a practical matter, of course, the Attorney General is, more than ever, a manager and policymaker. From the three assistants authorized in 1916, the Attorney General's Office has grown to employ over 200 lawyers. See 1 Maryland State Budget [Fiscal Year 1984], at 90-95 (1983).

C. Effect of Changed Conditions

In our view, the "practiced Law" eligibility requirement should be construed in consonance with the changed responsibilities of the Attorney General and the changes in the nature of legal practice. Certainly, the expertise and acumen derived from a personally conducted private practice, which the framers of the provision seemingly had specifically in mind, remain highly pertinent. But other legal skills that reflect experience with types of legal practice unknown in 1864, for example, managing the work of subordinate attorneys or shaping legal policy for a public or private institutional client, are now just as pertinent to the constitutional test. To read the provision as if its scope were forever frozen in the mid-Nineteenth Century legal era would frustrate its overall purpose: that the Attorney General's legal experience be "fit . . . for this office", as both the nature of legal practice and the duties of the Attorney General may evolve.

The Court of Appeals has adopted just such an approach to other interpretive issues under the Constitution. For example, in Norris v. Mayor & City Council of Baltimore, 172 Md. 667 (1937), the issue was whether voting machines might lawfully be used in elections in this State. Article I, §1 of the Constitution provides that "[a]ll elections shall be by ballot", and the opponents of voting machines argued that the term "ballot" could not possibly have been intended to permit the use of voting machines, which, of course, did not exist in 1867. The Court forcefully rejected this constricted view of the Constitution: "[T]he argument ignores the rule which above all others gives life to the written law and makes its use possible for the government and control of men in carrying on the actual business of life, and that is that, while the principles of the Constitution are unchangeable, in interpreting the language by which they are expressed it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee. . . . [W]here the meaning of the words employed is susceptible of expansion so as to include a significance in complete harmony with the spirit and purpose of the instrument, which will gratify a legislative intent or serve a present need, they may be so interpreted, for it is an accepted canon of constitutional construction that such instruments are to be liberally construed to accomplish the purpose for which they were adopted." 172 Md. at 675-76.

The same principle of construction was applied in Clauss v. Board of Education, 181 Md. 513 (1943). The Board argued that it could not constitutionally spend money for certain workmen's compensation premiums, because that use of funds was outside the meaning of the term "education" in Article VIII, §3 of the Constitution. The Court of Appeals, reviewing the evolution of educational practices from the one-room schools of 1867 to the large consolidated schools of modern times, held that the meaning of "education" in the Constitution also evolved: "The meaning of the Constitution is not restricted to the meaning of particular words employed as they were understood at the time of its adoption. It is not to be supposed that the framers of the Constitution of 1867 did not expect the system of education then in force to be changed or improved. They could not, of course, foresee what changes were to come, so they wisely did not attempt to define what they meant by education. They left that to be interpreted in the light of conditions at any given time when such a question should arise. Education in 1867, as we have shown, did not include the employment of repair men for heating systems in public schools. Education in 1943 does include such employment, because that is the only way the kind of schools now found necessary for the education of children of the State can be made usable." 181 Md. at 523.

We think that the meaning of "practiced Law" must likewise be interpreted in light of the parallel changes in the nature of legal practice and the duties of the Attorney General. "[L]iteralism and verbalism must yield to the essential and underlying claims of the people of the State to have a reasonable and effective government." County Commissioners for Montgomery County v. Supervisors of Elections of Montgomery County, 192 Md. 196, 208 (1949). See also Andrews v. Governor of Maryland, 294 Md. 285, 290 (1982); Johns Hopkins Univ. v. Williams, 199 Md. 382, 386 (1952); Buckingham v. Davis, 9 Md. 324, 328 (1857).

V
Construction of Comparable Eligibility Requirements

Our understanding of the constitutional "practiced Law" requirement, that it is not limited to the specific forms of practice familiar to the framers in 1864, but instead should be construed to recognize changes in the profession since then, is reinforced by judicial construction of other, comparable eligibility requirements.

A. Eligibility for Elective Office

A few cases from other jurisdictions have considered whether a person whose legal experience was something other than traditional private practice nonetheless satisfied a "practice of law" eligibility requirement. These decisions suggest that such a requirement is to be construed liberally. The leading case is Gazan v. Heery, 187 S.E. 371 (Ga. 1936). The issue was whether a municipal court judge was eligible to run for chief judge of that court. Only someone who had "practiced law for five years or more" was eligible. The plaintiff claimed that the sitting judge had not "practiced law" and therefore was ineligible to serve as chief judge.

The Georgia Supreme Court rejected this argument: "While a judge of the municipal court may not be engaged in the practice of law in the ordinary sense, yet he is dealing with the law, and acquiring by decision and disposition of cases in trials in his court a knowledge and experience in law which during the same period of time may enhance his qualifications more than an active practitioner at the bar during the same period. The purpose of section 6 of the statute creating the municipal court of Savannah was not to place an arbitrary and technical barrier against a person who might possess in reality the knowledge, training, experience, and soundness of judgment such as would qualify him to fill the office of chief judge of the municipal court. Words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of choice from all those who are in fact and in law qualified. Judges all 'practice' law. They do not represent clients. They do not receive fees. They do not appear at the bar. But they are in the sense of this statute engaged in the practice of law, dealing with it, studying it, applying it, passing upon pleadings, issuing process and directing that it shall be issued, controlling counsel, and applying the ethics of the profession. The only reason why he is not practicing law in the ordinary sense is that he is not representing clients for compensation. He is doing everything else. We think we ought to construe this statute as meaning that the Legislature intended to see that nobody held the office of Chief Judge of the municipal court of Savannah except one who possessed such learning, skill, and judgment, in regard to the principles of law and its application as can be acquired during a period of five years, whether representing parties at the bar as counsel, or as a judge upon the bench. That statute certainly was never intended to prevent a man from being elevated to the office of Chief Judge merely because he had not had five years practice as an attorney at the bar." 187 S.E. at 369-70 (emphasis added).

Accord, State ex rel. Schenck v. Shattuck, 439 N.E.2d 891 (Ohio 1982) (adopting reasoning of Gazan in holding that a court referee engaged in the "practice of law" for purposes of judicial eligibility provision). See also State by Reyna v. Goldberg, 604 S.W.2d 549 (Tex. Civ. App. 1980) (service as court briefing attorney and executive director of district attorney's association, combined with limited private practice, satisfied "practicing lawyer" requirement for purposes of judicial eligibility provision). In Reyna, the State argued that the "practicing lawyer" requirement necessarily implied that "a person (1) must 'hold himself out to the public ... as being available for . . . employment for his rendition of [legal] services . . . (2) he must 'have or maintain a law office,' and (3) he must 'render services, counsel, advice or representation to the public requiring the use of legal skill or knowledge which was a customary, habitual or substantial application of his personal time or services'". The court rejected this interpretation: "It is our view and holding that these tests are too strict and that one need not meet those tests in order to be a practicing lawyer within the meaning of the constitutional provision." 604 S.W.2d at 553.

As Gazan makes clear, these liberal constructions of "practice of law" requirements not only avoid a crabbed, unrealistic view of lawyering but also effectuate a broader principle: "[P]rovisions in statutes and Constitutions imposing restrictions upon the right of a person to hold office should receive a liberal construction in favor of his eligibility". Howton v. Morrow, 106 S.W.2d 81, 82 (1937) (court clerk with limited private practice satisfied "licensed practicing lawyer" requirement). See generally 63 Am. Jur.2d Public Officers and Employees §38, at 650 (1972) ("Statutes imposing disqualifications are to be construed strictly, while those declaring qualifications are to receive a liberal construction. In consequence, ambiguities are to be resolved in favor of eligibility to office.") See also Annot., 71 A.L.R.3d 498 §7 (1976). The reason for this treatment of eligibility provisions was forcefully stated by the Florida Supreme Court: "Even if there were doubts or ambiguities as to the [the candidate's] eligibility, they should be resolved in favor of a free expression of the people in relation to the challenged provision of the Constitution. It is the sovereign right of the people to select their own offices and the rule is against imposing disqualifications to run." Ervin v. Collins, 85 So.2d 852, 858 (1956). See also McGinnis v. Cossar, 18 S.W.2d 988, 989 (Ky. 1929) (eligibility provisions "should receive a liberal construction in favor of the right of the people to exercise freedom of choice in the selection of officers").

B. Eligibility for Bar Admission

In Maryland, as in many other jurisdictions, the rules governing admission to the bar differentiate between recent law school graduates and those who have practiced law in another jurisdiction for some period of years. See Bar Adm. Rule 14. The latter group of applicants need not take the full bar examination, for their experience is itself a test of fitness to practice in this State: "[O]ne purpose of [a] requirement [for five years' practice in another jurisdiction] is to have the applicant put to the test of the reputation which he would acquire in five years in one locality." Edmonds v. Webb, 182 Md. 60, 63 (1943) (quoting letter from Court of Appeals to Board of Law Examiners). See also In re Lohmeyer, 218 Md. 575 (1959).

No Maryland case has ever addressed the forms of legal practice that would satisfy this requirement. However, in Application of Brewer, 506 P.2d 676 (Alaska 1973), the Alaska Supreme Court had no difficulty holding that service as a district court judge constituted "the practice of law" within the meaning of the pertinent bar admission rule: "The district judge is continuously involved with legal problems of a wide variety .... The nature of the duties . . . clearly . . . constitute the 'practice of law'." 506 P.2d at 679 n. 9. See also Sullivan v. Kentucky State Board of Bar Examiners, 563 S.W.2d 713 (1978) (under applicable rule, "active engagement in the teaching of law shall be considered active engagement in the practice of law").

Other cases that interpret terms similar to "practice of law" involve the scope of statutory prohibitions of unauthorized practice. In Maryland, the statute provides that a person "may not practice the profession or perform the services of an attorney-at-law within this State without being admitted to the bar". Article 10, §1 of the Maryland Code. The cases then explicate the statutory prohibition by deciding whether particular activities are the "practice [of] the profession". See Public Service Comm'n v. Hahn Transp., Inc., 253 Md. 571, 580-81 (1969) (preparation of pleadings, examination of witnesses, and argument before administrative agency is practice of law); Ginn v. Farley, 43 Md. App. 229, 233 (1979) (conduct of litigation in court, even without compensation, is practice of law). In our view, these cases are simply irrelevant to your inquiry. The stated purpose of unauthorized practice regulation is "the protection of the public from incompetent, unethical, or irresponsible representation". Florida Bar v. Moses, 380 So.2d 412, 417 (Fla. 1980). Such a construction of the term is plainly inapposite to the quite different issue of a "practice of law" eligibility requirement for elective office. Gazan v. Heery, 187 S.E. 371, 378 (1936).

VI
Applicability of Constitutional Requirement to Facts

As our discussion above indicates, we believe that the "practiced Law" requirement in Article V, §4 of the Constitution is not limited to the specific forms of legal practice known in 1864. Rather, it should be understood to require involvement in any of the contemporary forms of lawyering that entail the application of personal legal expertise to a range of issues. We do not suggest that the quality of one's prior practice can or should be assessed as a matter of constitutional qualification. The "practiced Law" requirement is a minimum threshold. Once satisfied by the various candidates, the voters of the State will then decide which of them is indeed best fit for the office. See Part V A above.

It is evident, we think, that the experience set out in your letter of inquiry, and summarized in Part I above, satisfies the constitutional requirement. As Dean of the University of Maryland Law School, you have engaged in activities that involve both the application of your individual judgment to legal issues and participation in the framing of institutional responses to legal problems. Moreover, you have simultaneously held yourself out as a practicing attorney and have engaged in various professional activities, albeit on a necessarily limited scale.

In our view, Article V, §4 of the Constitution does not require a parsing of your legal career to determine whether any one or another of its separate components, taken in isolation, would be the "practice[ of] Law". Rather, taken as a whole, your background reflects involvement with the kinds of legal responsibilities that meet the constitutional requirement.

VII
Conclusion

In summary, it is our opinion that you have "practiced Law in this State for at least ten years", within the meaning of Article V, §4 of the Maryland Constitution.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel, Opinions and Advice
Avery Aisenstark, Chief Counsel, Opinions and Advice