By MSBA Staff

Lawyers, Farmers, and Merchants

            From the founding of our Republic, lawyers have played a pivotal role in establishing and conducting our uniquely American form of representative government. Early post-Colonial era legislatures were not diverse bodies in terms of race and gender, and there was little diversity in terms of the occupations of the elected officeholders. The most prevalent fields listed by early representatives were lawyer, farmer, and merchant. Twenty-first-century legislatures are now more occupationally diverse, and that diversification has diminished the influence of lawyers in legislative bodies.

            One common characteristic shared by those who chose to serve in legislative bodies was that they had established a sufficient degree of personal power and wealth to afford them the time away from their professional responsibilities to serve in a legislature that might convene for months at a time. Well-established lawyers represented a substantial portion of that class of individuals. And lawyers, with their unique ability to craft written law, became perhaps the most indispensable group among those legislative bodies. However, the days of lawyer dominance in legislatures around the nation are no more. The number and percentage of lawyers in the state legislature have declined nationally and in Maryland over the last four to five decades.

            In Maryland, the 1967 General Assembly listed 49 of 142 members of the House of Delegates as having a law degree (34%), and 20 of 43 members of the Senate as having a law degree (47%), meaning that the percentage of members for the entire body was 37%. (In 1967, the General Assembly had only 185 members, as opposed to 188 today.) The 2021 General Assembly reported that 37 members of the 141 members of the House (26%) identified themselves by profession as attorneys, while 9 of 47 members of the Senate identified themselves as attorneys (19%).  Thus, the percentage of lawyers in the legislature in 2021 stood at 24%.

            In examining the changing landscape of state legislatures, and the reasons for the declining representation among lawyers, and the continued importance of attorneys in the lawmaking process, I sought out the perspectives of individuals who could offer unique insights on the matter. They include a nationally-known political scientist, current and former elected officials, as well as bar leaders.

National Trends     

Karl Kurtz, National Conference of State Legislatures

            To understand how the decline in the number and percentage of lawyers in the Maryland General Assembly compares to national trends, I spoke with an authority on the subject. Karl Kurtz, Ph. D. is a retired political scientist who spent decades analyzing state legislatures with the National Conference of State Legislatures (NCSL), from its founding in 1975 until his retirement in 2014.

            Structure of State Legislature (Full-time, Citizen, and Hybrid)

            First, Dr. Kurtz pointed out that in an analysis of national trends involving state legislatures, it is essential to recognize the differences in the three basic categories of state legislatures: full-time, part-time (or “citizen”), and Hybrid (Maryland falls into the “hybrid” category).

            Kurtz outlined the differences in legislative duration and structure:

• Full-time legislatures (those that meet throughout the year) would include California, New York, Pennsylvania, and Michigan. These legislatures are characterized by relatively high salaries and ample staffing.
• Part-time or “citizen” legislatures may have a legislative session as short as 30 days, especially in states where the state budget is set every other year. Citizen legislatures, generally found in states with smaller populations, would include New Hampshire, Vermont, North Dakota, South Dakota, and Wyoming. Legislators participate in sessions that are short in duration, have little if any staffing, and receive low pay.
• The hybrid model state legislatures, such as the Maryland General Assembly, are defined by NCSL, where members devote 74% of a full-time job on legislative matters, including the session, off-session legislative work, and constituent services. They have short staffing and receive salaries that are significantly lower than full-time bodies. Maryland, along with 25 other states, fall into the hybrid category.

            When I asked Dr. Kurtz what he regarded as the key considerations affecting the participation of lawyers in legislatures, he highlighted the following factors:

• Over recent decades, the time commitment of all categories has been increasing for full-time and part-time legislatures;
• A couple of generations ago, when legislatures were part-time commitments, it would have been easier for a lawyer to maintain a practice, be present for a legislative session and remain responsive to constituent matters;
• Constituent demand – Email and social media have made officeholders far more accessible to their constituents;
• Every legislature is now representing a lot more people than in the past, and  state legislative districts are often larger than Congressional Districts;
• State Governments have grown more complex over time.

             Finally, I asked Dr. Kurtz if he believed any socio-political factors, such as anti-lawyer bias or a rise in populism that might have led to the decline in lawyer- legislators. He stated that he had not seen either potential phenomenon operating in a sustained manner. However, Kurtz did offer one specific observation related to the Maryland House of Delegates. He noted that there had not been a lawyer to serve as House Speaker since current U. S. Senator Ben Cardin, who served as Speaker from 1979 to 1986. He noted that the vast majority of House Speakers before him were lawyers.

Perspectives on the Importance of Lawyers in the Legislature

Harry S. Johnson (MSBA President, 2003 – 2004)

            “Throughout Maryland’s history, lawyers have been key members of the Maryland General Assembly. To highlight our legislative members, MSBA in 2003-2004 listed all of the lawyer legislators in the Maryland Bar Bulletin.  Through our Bar President’s Conference, we informed local and specialty bar leaders of their fellow lawyers who served in the legislature. Our goal was to help push the agenda of Maryland lawyers by creating and fostering relationships between lawyers locally and their elected representatives. This partnership continues, as several members of the legislature are active members of the MSBA, including several graduates of the MSBA Leadership Academy.”

            Mr. Johnson pointed out that local representatives, both attorneys, and non-attorneys, wish to receive input and hear opinions of local attorneys as much as they do from the bar “writ large.” He felt highlighting the role of individual attorneys and local bar associations was beneficial to the legal community and the legislature.

1. Joseph Curran, former Maryland Attorney General, Lt. Governor, Senator, and Delegate 

            When I spoke with former Attorney General Joe Curran, we talked primarily about the 20 years he served in the Maryland Senate, where he Chaired the Senate Judicial Proceedings Committee for 16 of those 20 years:

• “Early during my time in Annapolis; first, when I was in the House, then later in the Senate, there were relatively few lobbyists; now there are many more – and more of the bills introduced are on behalf of the interests represented by those lobbyists.”
• “Not all lawyers in the legislature practiced all kinds of law; I did trial work for insurance companies,  or an occasional criminal case or someone’s will. It was good having the practice area diversity on the Committee.”
• “In the Judicial Proceedings Committee, we handled estates and trusts, and real estate matters that were often very complex. It was helpful having lawyers on the Committee with expertise in those areas.”
• “While some argued that there was too much regulation of industry  – that regulation was intended to be for the benefit of the consumer. Regulation is generally a response to abuse, and those regulatory provisions are Intended to protect the consumer, not to burden the manufacturer.”
• “In examining what makes a regulation necessary or unnecessary, it’s important to have the involvement of the business community, consumer groups, but also lawyers.”
• “Where the MSBA can be of great help to the General Assembly – especially legislators who are not lawyers – it’s in making determinations as to whether a particular change in the law is even necessary. That’s true, whether it’s from the top leadership of the MSBA or an MSBA Section.

             AG Curran on Electoral Politics:

• “A greater percentage of people choosing to run for office are community leaders, who aren’t necessarily going to be lawyers. They’re known to the community, and whether their key issues are housing, education, or environment, many of these community leaders are known to the community and may not be attorneys.”
• “Historically, many lawyers considering a run for office are well-known in their legal circles, but not as well known in the individual communities in the electoral District from which they would run.”
• “Lawyers need to do a better job of getting out into the community, and developing a greater mastery of those community issues and not focus as much on legal matters.

 Judge Daniel Long, Retired Judge, Somerset County Circuit Court

          Judge Danny Long previously served in the General Assembly as Chair of the House Judiciary Committee from 1989-1990. When I spoke with him, I wanted his thoughts on balancing a law practice and legislative service, and also about collegiality among lawyers in the General Assembly

• “When I was elected in 1982, the basic challenges for a lawyer-legislator then were largely the same as they are today: balancing a law Practice, your legislative duties, and your family life.”
• “Occasionally, I’d ask myself, ‘Did I answer those interrogatories? Did I answer that constituent?’ I really had to focus.”
• “We had great lawyers on the Judiciary Committee, from both sides of the aisle. They worked together in a collegial manner to amend bills and solve problems together.”
• “However, it is very important to remember that many non-lawyers are very adept at analyzing bills, as well as many of the legislative analysts and lawyers on the Committees.”
• “Collegiality was the way of the world when I served; people disagreed amicably.”

 Judge Long’s thoughts on serving in today’s General Assembly

• “The biggest difference would have to be challenges brought about by social media –  and the constant access by constituents and the public.”
• “When I served, Committee chairs had full-time staff – but today, with the growing complexity of state government, legislative staff of members can become overwhelmed by the volume and complexity of some of the requests by constituents.

 Delegate Kathleen Dumais  

Photo: https://drive.google.com/file/d/1lrrjASztejgqGreY-esxYXI0WVjlow-h/view?usp=sharing

            Delegate Dumais serves as Vice-chair of the House Economic Matters Committee and represents District 15 in Montgomery County.

             “In my experience, lawyers are vital members of the House and Senate as mentors to our colleagues and resources to staff counsel.  We provide practical, real-world guidance and assistance on issues before all committees – particularly the House Judiciary Committee and the Senate Judicial Proceedings Committee that are the committees with jurisdiction over criminal law, divorce and custody, medical malpractice, tort law, and court proceedings generally.  But our perspectives on business regulation, tax law, estates and trusts, and administrative law are also necessary.  I hope more members of the Bar will consider running for a position in the legislature.  It is rewarding and important – though it’s certainly frustrating and exasperating at times too.”

Conclusion

            As economic and social trends continue to alter how civic-minded citizens consider the notion of seeking elective office, the MSBA must continue to evolve as a highly-sought resource for attorneys contemplating public service in state and local legislative bodies. Further, whether through an MSBA Legislator Academy or partnering with other bar associations or legal groups, the MSBA stands prepared to provide Maryland lawyers with additional resources to prepare them for holding elective office.