Posts Tagged ‘multijurisdictional practice’

Sarah Waldeck, contributor to a great general interest law blog called Concurring Opinions, has posted a commentary discussing the recent decision to certify a class of out-of-state law graduates challenging Wisconsin’s “diploma privilege,” which allows in-state graduates to be admitted to practice without taking the bar examination.  Ms. Waldeck’s article raises questions about the social utility of a state requiring recent graduates to take the bar examination at all, sparking some thoughtful comments in response.

I don’t have a strong opinion about the benefits of requiring admittees to take the bar examination generally.  I supposed that if I’m really honest about it, my view is similar to my view on freshman initiation when I was a high school senior: I had to go through it, so you should too.  A requirement that every new admittee have passed at least one bar exam provides a minimal test of the analytical abilities and, perhaps more importantly, the level of commitment to preparation and study necessary to provide competent representation to the lawyer’s clients.  But surviving three years of law school demonstrates these skills to some extent too.

A more important question to me is whether there is any practical benefit to a state requiring applicants to take its own bar examination, when most of what gets tested is similar from state to state anyway and when the vagaries of a state’s unique laws and procedures are not likely to sink in without the repetition of practice anyway even when one has attended law school in that state.  Having taken and passed the ethics portion of the Washington state bar exam earlier this year, part of me is leaning toward the “I had to do it, you should too” attitude on that issue too.  But then again, like many commercial litigators with clients who do business nationwide, it is not feasible to restrict my practice to a single state, nor is it feasible to meet the general admission requirements of every state where one of my clients might get sued some day. 

See my earlier entry discussing Wisconsin class certification decision followed by loosely-related musings on mulitijurisdictional practice of law here.

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The Associated Press reported today that United States District Judge Barbara Crabb of the Western District of Wisconsin has certified a class action filed on behalf of out-of-state bar applicants.  (See the article as published in the Chicago Tribune here.)

What piqued my interest about this case was not that a class was certified but rather the potential impact of the underlying claims in the case, which challenge individual state restrictions on the right to practice law.  The named plaintiff is reportedly a recent law graduate from Oklahoma who argues that Wisconsin’s rule allowing in-state law graduates to be admitted without taking the bar examination is unconstitutional.  The particular constitutional grounds are not discussed in the article, but presumably among the arguments raised is that discrimination among bar applicants based on whether an applicant’s law school is in-state or out of state, violates the privileges and immunities clause and the dormant commerce clause.  These arguments have been used to attack states’ restrictions on admission to practice law with varying success. (See this Eleventh Circuit Court of Appeals’ decision and the cases cited within as examples).

The development of the law regarding bar admission restrictions is of special interest to those of us who practice in the areas of class actions and other complex civil litigation, where multi-jurisdictional practice is becoming the norm.  While a litigator can often without much trouble appear in specific cases in other states under the rules permitting pro hac vice admission, some states’ rules have become increasingly protectionist in preventing out-of-state lawyers from appearing even for this limited purpose.  For example, my home state of Montana limits any given lawyer or firm to 2 appearances after 1998, without any end date, absent a showing of good cause.  Admissions for good cause are “not to be routinely granted” and would include, by way of example, instances where the applicant “possesses experience or expertise not commonly available in the membership of the State Bar of Montana or where the attorney or firm is acting as counsel in a multi-state class action [but evidently not a state-wide class action].”    Montana Pro Hac Vice Rule.  

The ABA has proposed various model rules relating to admission by motion or reciprocity, pro hac vice admission, and other aspects of multi-jurisdictional practice, which are intended to strike a balance between the realities of multi-jurisdictional practice and the need for individual states to be able to regulate the conduct of out-of-state lawyers’ conduct.  See the ABA Commission on Multijurisdictional Practice webpage here.  The webpage has a chart outlining which states have adopted which model rules (Note, you may need to be an ABA member to access these links).

By the way, those of us who are already licensed elsewhere won’t be able to just wait for the outcome of the Wisconsin case to apply for admission there.  According to the AP article, the class is limited to those out-of-state law graduates who apply for admission within 30 days of graduating from law school.

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