Vermont’s attorney general has filed a complaint against Annette Smith, the activist who helps Vermonters opposed to industrial wind, navigate the administrative jungle that best describes the Public Service Board proceedings. I have represented folks opposed to industrial wind at the Public Service Board, and the hearings are overrun by lawyers – most of whom favor the government’s and the developer’s positions on industrial wind. Neighbors opposed to an industrial wind project face a phalanx of government and industry lawyers in a proceeding that is costly, time consuming and often confusing. In other words, the fix is in.
Now the attorney general is siding with Vermont’s large law firms and big lobbyists to deprive opponents of industrial wind the advice of a person who knows the intricacies of the proceedings and can help those who cannot afford the high priced lawyers the developers can. And make no mistake: Even though this is a preposterous charge, and will likely be thrown out, its purpose will be fulfilled: to chill anyone’s free speech rights who dares to question the powerful in Montpelier.
“Practicing law without a license” is a hoary concept left over from the medieval guilds where skilled tradesmen (including lawyers) sought to keep out competition. It was revived in the early 20th century when the newly organized bar attempted to persuade legislatures to define the practice of law and regulate it – to the bar’s advantage. Legislators were wary of such a regulatory scheme, so the effort waned until the Great Depression, when lawyers’ incomes plummeted, and the organized bar launched a new effort to keep out those who were in competition for their services.
This time the bar sought the help of the judiciary, which took up the cause. That is where it stands today: the unauthorized practice of law is regulated in large part by the judiciary. Over the years, lawyers targeted different groups: realtors, bankers and investment advisers, with varying success. The reason for this effort was supposedly to protect consumers from service providers who did not adhere to the strict professional conduct rules of the bar. However, with the advent of strong consumer protection statutes and competition among providers, this “protection” is mostly a red herring.
The concept of unauthorized practice of law is so vague as to call into question its constitutionality. The practice of law is, according to the Vermont Supreme Court, “the rendering of services for another involving the use of legal knowledge or skill on his behalf – where legal advice is required and is availed of or rendered in connection with such services.” Under that standard, hundreds of public servants in Vermont provide “legal advice” – providing information about relevant statutes, procedures and regulations – to the public and to Vermont attorneys smart enough to get the information directly from those in the know at state agencies. Yet these public servants will – and certainly should not – be prosecuted. Only Ms. Smith, who provides similar information to those who cannot pay for those high priced lawyers is prosecuted by the attorney general. This is precisely the constitutional issue: A rule violates the Due Process clause of the Constitution because it is too vague to put the public on adequate notice as to when a violation occurs, and it opens the door for selective prosecution – exactly what has happened here. The attorney general’s action appears to be an effort to silence opposition to industrial wind, and to help the large Burlington law firms and their clients to keep from having to deal with pesky Vermonters who oppose their clients’ projects.
Vermonters are being strangled by government overreach. The attorney general’s action is a disgraceful example. If you don’t agree with the powerful and well-connected in this state, then just shut up, or you may be the target of the government and its unlimited resources.
This commentary is by Deb Bucknam, who is an attorney in private practice for 37 years. She is a former vice chair of the State Republican Party and on the board of the Thaddeus Stevens School.