wurtzel book cover.gifTo those of you getting ready to take the bar exam this week, here’s some reassurance for you: even if you fail, life goes on. Consider this list of famous failures, people who didn’t pass the bar exam but went on to tremendous success anyway.
And here’s another boldface name who failed the bar: Elizabeth Wurtzel, the bestselling and critically acclaimed author, who graduated from Yale Law School last year and sat for the New York bar in July 2008 (and maybe in February 2009 too). In an interview with the New York Observer, Wurtzel shrugged off her bar failure.
In a more recent interview with Bitter Lawyer, Wurtzel once again breezed past that fact. From Gawker:

Wurtzel granted an interview recently to Bitter Lawyer, talking about how much she loves the law and how awesome it is being a lawyer and working at David Boies’s law firm. Except she’s not a lawyer! At least not in New York, where it seems to be unlawful to claim to be a lawyer if you haven’t passed the bar exam. Which she hasn’t.

In the Gawker post, John Cook parses Wurtzel’s Bitter Lawyer interview against the backdrop of New York rules and statutes regulating the legal profession. Cook suggests that Wurtzel describing herself as a lawyer violates New York Judiciary Law § 478, “Practicing or appearing as attorney-at-law without being admitted and registered.”
We forwarded the Gawker link to a pair of legal ethics experts, Professor Steven Lubet of Northwestern and Professor Stephen Gillers of NYU, and asked them to assess the situation.
Read what they had to say, after the jump.


Steven Lubet, the Williams Professor of Law at Northwestern Law School, was untroubled:

I read the linked article. I don’t think there is a problem with that sort of casual reference to herself as a lawyer.

To paraphrase ATL commenter Frat Stud, “Gals in my high school used to call themselves lawyers all the time, it was no big deal.”
Stephen Gillers, the Kempin Professor of Law at NYU Law School, had a more detailed assessment:

I have no knowledge of Wurtzel’s bar status or the lack of it, so I’ll just tell you the rules. There are three distinct issues. Apparently, only the first applies here.

1. If you’re admitted to a bar in any state, you can call yourself a lawyer. (I’m not getting into admission in other countries.) If you’re not, you can’t. Wurtzel’s statement is sloppy. It is subject to two interpretations. If she is not admitted anywhere, the kinder interpretation would be that she is happy being useful “like a lot of young lawyers [are, even though I am not one].” But I think the more natural reading is that she is happy being useful “like a lot of [other] young lawyers.”

Nonetheless, giving the wrong impression in a casual remark is not going to get Wurtzel into trouble when she applies to the bar (assuming she hasn’t already done so and eventually does).

The next two distinctions may be irrelevant but for the sake of completeness:

2. A separate issue concerns misrepresenting your jurisdictional limitations. For example, if you use a law firm letterhead or business card with a NY address, you are implying you are admitted in NY so you must be admitted in NY. One way to avoid that implication is with a disclaimer on the letterhead or card that notes your jurisdictional limitations.

3. But even if you avoid that erroneous implication, with certain exceptions, you cannot practice law (other than temporarily) from a NY office if you are not a member of the NY bar. That is, a Florida lawyer cannot open an office in NY even if she makes it clear that she is admitted only in Florida.

But Professor Gillers ultimately reached the same conclusion as Professor Lubet: “[G]iving the wrong impression in a casual remark is not going to get Wurtzel into trouble when she applies to the bar (assuming she hasn’t already done so and eventually does).”
Still, even if the legal ethics experts have cleared her, Wurtzel might be well-advised to refer to herself as a “law clerk” or “legal intern” rather than an “associate” (especially in correspondence on Boies Schiller letterhead). If the powers-that-be can reject your bar application because you have too much in unpaid student loans, they can probably reject you for all sorts of other reasons too.
If you’re taking the New York bar again tomorrow, Ms. Wurtzel, we wish you the best of luck. Hopefully the third time will be a charm.
P.S. As for Wurtzel’s other possible character and fitness problems — e.g., her past drug use, firing for plagiarism, sexual misadventures, etc. — at least she has disclosed it all. She can give the C&F committee copies of all her books and say, “Read these, then let’s talk.”
Is Elizabeth Wurtzel Breaking the Law By Calling Herself a Lawyer? [Gawker]
Bitter Lawyer Loves Elizabeth Wurtzel – Part 1 [Bitter Lawyer]


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