Practic(ing) makes perfect

When someone is accused of violating a law, with very rare exceptions, the law that they’re accused of violating is a statute. Statutes are sometimes referred to (and only a little bit ironically) as “black letter law.” That’s because they are made up of “words,” and those words have “meanings.” (I hope I’m not getting too technical on anyone here.)

In deed, the backbone of a lot of statutes are the “definitions,” where certain statutes tell us what these other “word” things mean. If you look at the very beginning of almost any of the statute books (also known as “codes” — because that’s what they are written in), there are usually anywhere from a few dozen to a few hundred such “definitions.”

The authors of dictionaries have been at this a long time, too, and they soon discovered that there are two kinds of definitions. If you look up “table” in a dictionary, for example, you’ll find something like, “a piece of furniture with a flat top and one or more legs, providing a level surface on which objects may be placed, and that can be used for eating, writing, or working.” This is known as a “connotative” definition, because it “connotes” — that is, it provides a universal description of the object based on its characteristics.

But certain things can’t be defined that way. Colors, for example, cannot be described connotatively. Look up “yellow” in a dictionary and you’ll be told that it’s an object “colored like ripe lemons or egg yolks.” Look up “green” and you’ll find that it’s an object “colored like grass or emeralds.” Or look up “blue” and you’re told it’s “a feeling of being melancholy, sad, or depressed.”

Oops, wrong meaning of “blue.”

Anyway, most of those color definitions are what are known as “denotative” definitions. Just as we teach children what most things are, the only effective way to define a color is by pointing to something and saying “this” — a ripe lemon or an emerald — is what “yellow” or “green” means. You don’t “connote” what it is with words — you “denote” what it is by pointing at something and saying, “that’s the thing I’m talking about.”

This distinction came back to me when I read about a fellow named Eric Deters who apparently was once licensed to practice law in both Ohio and Kentucky (Louisville and Cincinnati are right across the river from one another, so the temptation to “straddle the line” is likely quite tempting). But Deters got into trouble with the regulators in Ohio, and more recently the Kentucky Bar Association. Namely, he has been told by both states not to “practice law” in either jurisdiction. But he’s apparently been doing so, at least in Kentucky, despite having been told by the Kentucky Supreme Court itself not to do so.

Eight years ago. But as the saying goes, he persisted.

Where this gets tangled up in all of those “words” and definitions” is that the answer to what, exactly constitutes “practicing law” is surprisingly hard to pin down.

In California, the state I’m most familiar with, Business and Professions Code sec. 6125 says that, “No person shall practice law . . . unless the person is an active licensee of the State Bar.” And sec. 6126 makes doing so if you’re unlicensed a misdemeanor punishable by up to a year in jail and a $1,000 fine.

But there doesn’t appear to be one of those “statute” thingies actually defining what to “practice law” actually means.

Fortunately, this is where those folks in black robes earn their money. Back in 1998, the California Supreme Court wrote an opinion explaining that the “common law” definition of the notion of practicing law is what applies in California, and came up with this tidy summary: to “practice law” is “doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure.” Also, “it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured.”

Ah, yes. A denotative definition. If you want to know what “practicing law” is, just . . . follow a lawyer around, and it’s . . . whatever he or she does.

Except maybe pouring coffee. Or adding something to it from that handy hip flask.

So I suspect that Mr. Deters is about to learn what “stop doing what you’ve been doing for eight years” means.

Also, he might learn about a concept called “contempt of court.”