Abdul Hits Kennedy On "Inactive Status"

Melina Kennedy's campaign for Marion Co. Prosecutor took a hit today when WXIN radio talk show host Abdul Hakim-Shabazz raised questions about Kennedy's listed "inactive status" as an attorney admitted to practice law in Indiana for a 9-month period ending last June. Already plagued by critics' charge that she lacks prosecutorial experience, this latest revelation is likely to raise questions about her commitment to the practice of law. As Abdul explains at Indiana Barrister:

The potential problem for Kennedy is that for nearly nine months, September 18, 2004 through June 6, 2005, Kennedy was on the inactive list. She left the Mayor's office in September 2005, created an exploratory committee for prosecutor in October 2005 and officially field for prosecutor on February 1, 2006. Kennedy would not have been able to legally serve as prosecutor one year prior to forming her exploratory committee.

Usually when attorneys go on "inactive" status it is because they leave the state, the profession or have committed some misconduct. Sometimes, like me earlier this year, they forget to pay their registration fee. They send in a check and get back on the list. I sent mine after getting the letter in the mail and am in good standing in the State of Illinois. To the best of my knowledge, none of those circumstances apply to Kennedy, which makes the nine-month absence rather odd. Why would someone who is considering running for Prosecutor, who knows experience will be an issue, take a nearly nine-month absence from the active list? She was still in the Mayor's office while inactive. While she could not practice law, she was still a key aide to Mayor Peterson in the area of economic development.

According to the Indiana Roll of Attorneys, Kennedy was first admitted to practice law in Indiana on June 14, 1996. The publicly available records reveal a gap in her active status. She has been an active member in good standing since June 6, 2005. Abdul reports that her "inactive status" kicked in on September 18, 2004, although that date isn't currently provided on the Roll of Attorneys' listing for Kennedy. Abdul opines that an attorney goes into "inactive status" when "they leave the state, the profession or having committed some misconduct."

At the purported time of her "inactive status", Kennedy worked in a non-legal policy position for Mayor Bart Peterson's administration. Although she was not actively engaged in the practice of law, Kennedy could have maintained her "in good standing" status to practice law as long as she paid the annual attorney registration fee and performed the minimum amount of continuing legal education hours for the current year and the applicable 3-year cycle. Attorneys who retire, stop practicing in Indiana, or switch to a non-legal job typically elect "inactive status", which they can do by executing an affidavit swearing that they are no longer engaged in the practice of law but wish to maintain inactive status in Indiana.

By adjusting to "inactive status", an attorney is no longer subject to the CLE requirements as long as he/she remains in that status; however, the attorney is not allowed to practice law while on "inactive status." While some states don't require attorneys to take CLE as a continuing requirement to practice law, Indiana does. An attorney who fails to comply with CLE requirements can be suspended and even disbarred in Indiana.

An inactive attorney can return to active status after electing "inactive status" as long as the current CLE requirements are satisfied. In Kennedy's case, because she was in "inactive status" for less than a year, she would have had to have fulfilled any unmet CLE requirements for the period of her inactivity. Abdul notes that Kennedy became a mother during her inactive period, but the Kennedy campaign did not offer that as a reason for her "inactive status" according to Abdul (UPDATE NOTE: per Sheila Kennedy's post below--Melina gave birth to twins during this period and needed the time off for this reason, although her campaign did not mention that according to Abdul's account below). Abdul explains what the campaign told him about Kennedy's "inactive status":

I asked the Kennedy camp about this entire situation this afternoon. The response from campaign manager Andy Miller and spokesman Tim Moriarty was essentially, "It doesn't matter." They maintain that Kennedy's work in the Mayor's office fighting domestic violence and promoting economic development are experience enough. They also point to her work on the State Supreme Court and the fact she is in good standing now. They argue Kennedy's experience speaks for itself and they don't see how not being able to practice law for close to nine months is an issue.

Certainly the fact that an attorney at some point in their career elects "inactive status" does not in any way diminish their competence to practice law. In Kennedy's case, however, the timing of it so close to the time she decided to run for prosecutor makes it a relevant issue. It tells us that she swore in writing to our Supreme Court, for whom she once worked, that she no longer intended to practice law in Indiana for an unspecified period of time. And she took this act a year before she launched her campaign for Marion Co. Prosecutor.

Abdul assures us that Republicans intend to make an issue of her inactive status. He says, "Marion County GOP Chairman Mike Murphy said 'the nine-month lapse reveals Kennedy was not serious about being prosecutor or a lawyer.'" (Update: In light of Sheila Kennedy's comments below about the birth of her twins during this period, the issue could cut both ways). Matt Tully was right. This race is going to be brutal.