This week, Utah announced that it will formally introduce an alternate pathway to licensure to allow prospective lawyers to skip the bar exam ritual altogether and earn their license through a combination of formal education, supervised professional experience, and a tailored, skill-based exam.
Above the Law has the full story here.
In a unique move, to deal with the dire need for public defense lawyers, Hawaii has announced a new pilot program to allow out of state lawyers (not licensed in Hawaii) to work in Hawaii public defender’s office, the Hawaii attorney general’s office or county prosecution offices. To apply for limited admissions to practice in one of those offices, lawyers must have an active license from another state, must have graduated from an ABA accredited law school and must be in good standing. The two year program starts next week, on August 14.
For more information go to the ABA Journal or Above the Law.
Above the Law is reporting (here) that the Utah Supreme Court recently released a plan to allow graduates of American Bar Association-accredited law schools to practice in the state after completing 240 hours of practice under the supervision of an experienced attorney, along with other requirements. This would open the door for graduates to avoid taking the bar exam. The ABA Journal has more on the story (and some links) here.
Recently, the Nevada Supreme Court approved plans to proceed with the development of an alternative pathway for attorney licensing in the state that does not include the traditional national bar exam. Go here for the full story.
March 20, 2024
The ABA Journal and Above the Law are reporting that the Washington Supreme Court has adopted alternative pathways to a law license, becoming the second state to do so in a little more than four months. The court approved three ways to bypass a bar exam, with different standards for law school graduates, law students and law clerks participating in a lawyer-tutoring program already in existence. All involve apprenticeships or internships.
You can read the different standards in the court's press release here. The ABA Journal has more details here. Above the Law has the story here.
UPDATE (April 13, 2024): Lex Blog has published a comment on the story here.
A couple of days ago I posted that I think a lawyer in good standing in a state should be allowed to practice law in any other jurisdiction. And just a few hours after I posted that comment, I heard that a working group of the ABA Center for Professional Responsibility has requested public comments on an Issue Paper on possible amendments to the model rules which would recognize permissible cross-border practice.
You can read the notice asking for public comments here. You can read the Issue Paper here. You can read more about the issue here.
Should A License To Practice Law Be More Like A Driver's License? In a word, YES! I do think so. I think that once admitted in one state lawyers should be free to practice in any other state - as long as they are in good standing and comply with the state rules of professional conduct, of course. I understand that there are lots of state variances when it comes to local rules and procedure but all lawyers are trained in how to do research and figure out the law of any jurisdiction.
I am mentioning this today because I just saw this post in Above the Law:
"How do you only practice law within your state boundaries when we’re in a global economy and a global world? It’s kind of a preposterous concept, right? [The Association of Professional Responsibility Lawyers]’s point is, ‘Do I stop knowing how to drive when I drive outside of Maryland? And as soon as I get to the border in Virginia, I’ve forgotten how to drive?’ It doesn’t make sense."
This is a quote by Charity Anastasio, in comments given during an ABA Techshow 2024 panel titled, “One Bar License, Will Travel—Are Changes in Multi-Jurisdictional Rules on the Way?” Anastasio, who also is the chair of the ABA Law Practice Division’s Professional Development Board, went on to encourage lawyers to “[s]ay it loud, say it proud. We should be able to practice anywhere we can drive.”
You may have heard the famous Shakespearean quote that goes something like "the first thing you do, kill all the lawyers" or something like that. It is often used as an insult to the profession, suggesting that lawyers are scum and we should get rid of them.
But a little research will teach you that in its proper context, the quote was used to suggest the opposite. The suggestion to kill the lawyers was used by a character looking to cause chaos that would allow him to topple the government. In other, words, we need lawyers to assure the proper functioning of society.
And, as a matter of fact, we could actually use more lawyers since anyone paying attention knows that the legal needs of huge numbers of people are not met.
So, it is interesting to note that a division (or "project") of the Federalist Society recently published a paper calling for regulatory reform in the legal profession. The paper, called "The World Needs More Lawyers" is available here.
Its executive summary reads as follows:
The American legal profession, as well as those it serves, would benefit from lowering the barriers to entry to the practice of law. Several licensing barriers unnecessarily contribute to the high cost of legal services, which inhibit access to justice for ordinary Americans. In some respects, legal licensure is categorically distinct from the licensure of other highly regulated professions. This suggests that a particular focus on legal licensure may be appropriate. We therefore explore the implications of modest reforms that would advance the public interest, with an eye to the encouragement of competitive markets in legal services, and the protection and preservation of the fiduciary nature of legal services.
New Mexico will no longer deny licenses to practice law solely because of an applicant’s citizenship or immigration status, including some aspiring law students who arrived in the U.S. as children and don’t have a clear path to citizenship. Go here for the full story.
In a recent report, a working group of the New York State Bar Association concluded that the New York Bar should not and perhaps legally may not ask applicants to the bar whether they have been arrested. (In New York, the question is known as "Question No. 26). The main reason appears to be the correlation between race and ethnicity, on the one hand, and interactions with the police, on the other.
This is an interesting issue that I must confess I have not given enough thought to. In contrast, over at Justicia, Joanna L. Grossman, the Ellen K. Solender Endowed Chair in Women and Law at SMU School of Law, has posted a thoughtful comment on this question. She proposes a compromise:
Accordingly, if Question 26 is reconsidered, I would propose the following substitutes for eliminating altogether an inquiry into arrests: (a) exempt groups whose membership correlates with arrest rates and therefore are suggestive of bias, or (b) take arrests of African Americans and Indigenous people with a grain of salt in reviewing Question 26, or (c) keep the question but only for domestic violence and rape (and all of their synonyms), or (d) keep the question but investigate more deeply the cases involving perpetrators who know their victims. At a time when more and more seemingly ordinary people turn out to be dangerous and violent con artists, the New York Bar must do its part to screen malefactors out of the profession.
The ABA Journal is reporting that the Oregon State Bar Board of Bar Examiners has adopted a task force report suggesting supervised practice or law school experiential-learning programs as bar exam alternatives for attorney licensure. The Oregon Supreme Court is now considering the recommendations in the report.
You can read the full report here.
The report does not propose eliminating the use of a bar exam. Candidates can still take the bar exam and use the results to gain admission, but the proposal now adds two alternative ways for admission. For candidates who go to law school in Oregon, there is a law school experiential pathway, and for candidates who come from out of state, there is a supervised practice pathway.
The ABA Journal has more details here.
Many lawyers and recent law school graduates believe they would benefit from mental health or substance abuse treatment but do not seek help because they fear that doing so will affect their ability to practice law.
Some jurisdictions have stopped asking questions about mental health in their character and fitness applications to the bar, but others have not.
As explained in a recent article in Bloomberg Law, “[w]hile states like Vermont have taken steps to assure students that receiving treatment will not affect bar admission, . . . students planning to seek admission in other states are not guaranteed the same reception, an issue that weighs heavily on students’ minds.” In Florida, for example, the Bar Examiners encourages treatment, but applicants with certain types of disabilities are required to submit treatment records even if they have no current issues which means that applicants may later be asked invasive questions by lawyers with no experience in mental health or substance abuse.
Other states have adopted a system of conditional admission. Once the conditions are met, the lawyer is fully admitted, but not everyone agrees this is a good alternative. Some states do not offer conditional admission, in part because of a lack of resources to monitor those subject to conditions and because of concerns about the imposition of conditions not based on individualized assessments.
For a good discussion of the issue you can read the full article at Bloomberg law, here.*
*I am not sure if you need a subscription to be able to read the full article. I can get access to it using one browser, but not Chrome for some reason.
Original post: 12/6/20
The ABA Standing Committee on Ethics and Professional Responsibility announced today a new formal ethics opinion on issues related to practicing law "remotely," by which they mean practicing law in a jurisdiction while being located in a different jurisdiction in which the lawyer is not admitted. You can read the opinion here.
Here is the summary:
"Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules."
UPDATES
(12/17/20): Given that the ABA's opinion only interprets the Model Rule, as opposed to the law of any one jurisdiction, it is important to consider how the rules of each jurisdiction have been interpreted so far and how the opinion might influence future cases. Here is a comment on how the opinion might apply to cases in California. Ethical Grounds has a short comment on the opinion here concluding that the opinion "makes sense" and "reflects common sense."
(1/16/21): Law 360 has analysis of the opinion in an article called ABA Approves Remote Practice, But Questions Remain.
A Delaware Superior Court judge ruled Monday that attorney L. Lin Wood, who filed a number of complaints challenging the results of the election, can't represent former Trump campaign adviser Carter Page in a state defamation case, saying it would be inappropriate to let Wood practice before the court because he has recently exhibited a "toxic stew of mendacity, prevarication and surprising incompetence."
In essence the judge is saying that Wood's reputation is so bad, he is either incompetent or unfit to practice law. The judge's memo cited, among other things, recent social media posts attributed to Wood, including a tweet suggesting that Vice President Mike Pence should be arrested and executed for alleged treason.
Also remember, this is the lawyer who filed a complaint seeking to reverse the election and signed it "under plenty of perjury."
It sounds strange for a judge to disqualify an attorney like this, but Wood's appearance before the court was going to be by admission pro hac vice. What the judge concluded was that a lawyer from a different jurisdiction should not be allowed to come to the judge's jurisdiction and practice given the attorney's history elsewhere. In other words, the judge was denying Wood's petition to practice in just this one case, not his ability to practice law in general.
"I acknowledge that I preside over a small part of the legal world in a small state. However, we take pride in our bar," the judge said.
You can read more on the story here: Law360, the Legal Profession Blog, Law & Crime, The ABA Law Journal, and Above the Law.
Above the Law has a short summary of the situation here. In a nutshell, some states will admit graduates without having to take the bar exam, some will allow them to start practicing pending their passing of the bar exam if they practice under the supervision of a lawyer, and some have made not changes to their current procedures. Above the Law's article has all the details.
The ABA Journal is reporting that a law school graduate (class of 2014) has been sentenced to prison for practicing law even though she flunked the bar exam twice. Yeah, you should not do that! Just in case you forgot: you need to be admitted to practice to be able to practice legally. Go here for the full story.
