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ABA Magazine Article Reciprocity Fight Returns As NAAMJP Lawsuits

ABA Magazine Article Reciprocity Fight Returns As NAAMJP Lawsuits Press the ABA Advocated Reciprocal Admission on Motion

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Permanent Link: ABA Magazine Article Reciprocity Fight Returns As NAAMJP Lawsuits

Lawsuit challenges DC federal court bar’s reciprocity rules

A national organization devoted to streamlining the process for multijurisdictional admission for attorneys has filed suit against the U.S. District Court for the District of Columbia, challenging its reciprocity requirements for lawyers seeking membership in the D.C. bar.

In a complaint (PDF) filed in Washington, D.C., federal district court last week, the National Association for the Advancement of Multijurisdiction Practice argued that the D.C. standards were discriminatory and brought suit on behalf of itself and three individual attorneys who were admitted to practice in jurisdictions that did not have reciprocity with the Washington, D.C. bar. According to D.C. rules, attorneys not admitted in D.C. can practice there, provided their home state’s federal district court allows D.C.-admitted attorneys to practice without undergoing the lengthy bar admission process. NAAMP argued that the practical effect of this rule was that attorneys admitted to practice in 25 of the nation’s 94 district courts would be given reciprocity while attorneys in the other 69 courts would be shut out. The suit was filed against the D.C. federal district court and named Chief Judge Richard Roberts and other judges of the court, who were sued in their official capacities.

The complaint cites several authorities for its claims, including the Fifth Amendment’s due process clause, the First Amendment’s right to free speech and association, and reports from the American Bar Association and National Conference of Bar Examiners. The NAAMP argued that the days when lawyers only learned local or parochial law were long gone and that forcing admitted attorneys to pass another bar examination was inefficient and illogical. “The ABA and UBEC have concluded that one bar exam is more than enough,” the NAAMP wrote in its complaint. The NAAMP also cited historical evidence that the reasons for requiring attorneys to take multiple bar examinations were discriminatory in nature. “The ABA concluded the failure to have admission on motion injures the public and the profession; women lawyers are further disproportionately injured,” the NAAMP argued in its complaint.

In an email, the NAAMP’s co-counsel echoed that sentiment. “The sole reason for D.C.’s antiquated exclusionary local rule is invidious prejudice,” said Joseph Robert Giannini of Los Angeles. “Federal law and procedure is supposed to be nationally uniform. There is no reason to discriminate in the U.S. courthouse against some lawyers but not others; we all pay for this courthouse with our federal tax dollars for the right to represent our clients.”

Sheldon Snook, a spokesman for the Washington, D.C. federal district court, declined to comment

Permanent Link: Lawsuit challenges DC federal court bar’s reciprocity rules

NAACP Sue Pa. High Court For State Bar Access

The National Association for the Advancement of Multijurisdiction Practice, filed  on December 13, 2103, docket 2:13-cv-07382, in the U.S. District Court Eastern District of Pennsylvania against the Pennsylvania Supreme Court Chief Justice Ronald D. Castille and his associate justices. The suit alleges Pennsylvania is violating the constitutional rights of NAAMJP members, the constitutional rights of Pennsylvania citizens, and the constitutional rights of attorneys who are licensed in the dozen states that Pennsylvania does not have reciprocity with.

Complaint paragraph 1 states:

The injustice in this case can be understood by analogy.  Assume the owner of the Philadelphia Eagles wants to retain the best quarterback.  He chooses either San Francisco 49er Colin Kaepernick or Baltimore Raven Joe Flacco to be his quarterback, the representative face of his franchise.  Both quarterbacks are available free agents wanting to play for the Eagles.  In America — our pledge of allegiance is “one nation, under God, indivisible, with liberty and justice for all.”   Joe Flacco and Colin Kaepernick are free to play for the Eagles, or the Pittsburgh Steelers, or any other professional football team.   But if they are lawyers by profession, they cannot play or represent clients in the Keystone State under Pa. B.A.R. 204.  The sole reason they are denied the Privileges and Immunities of American citizenship is because they come from non-reciprocity states.  If lawyers Kaepernick and Flacco, however, are from 38 other states and the District of Columbia that Pennsylvania has reciprocity with, they can practice law in Pennsylvania.  But since they come from one of the 12 non-reciprocity states, and although they are admittedly otherwise qualified, they are deprived of their citizenship rights by Pa. B.A.R. 204, injuring them, and depriving Pennsylvania citizens of their professional services.

Plaintiffs assert Pa. B.A.R. 204 in practical effect is unlawful retaliation, arbitrary and irrational serving no legitimate state interest, archaic, and unconstitutional.

Plaintiffs argue Pa. B.A.R. 204 cannot even pass a rational basis standard of review because the classification between reciprocity and non-reciprocity states are expressly drawn for the purpose of disadvantaging the group burdened by the law.  Rule 204 has nothing what-so-ever to do with merit or competence.  The group burdened are the citizens and residents of the states that have not yet adopted the ABA’s recommendation for reciprocal admission on motion for all experienced attorneys.  The irrationality of the Rule is self-evident.  Plaintiff Richard Rosario was admitted by bar exam fresh out of law school in Maryland and Washington DC, at the same time. He was many years later denied Pennsylvania admission on motion solely on the ground that his Maryland (non-reciprocity state) practice garnered more revenue than his six-figured District of Columbia (reciprocal jurisdiction) practice.

Pa. B.A.R. 204 is further unconstitutional because the United States Supreme Court has squarely held bar admission on motion is a constitutionally protected privilege and immunity, and that discrimination against otherwise qualified attorneys on the basis of state residence or citizenship is unconstitutional.  Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1998).  In Friedman, the Supreme Court rejected every justification Virginia proffered for its discrimination in bar admission on motion against out-of-state attorneys; including the Virginia Supreme Court argument that the attorney’s privilege and immunity to practice law was not abridged because Ms. Friedman could take an examination and, upon passing, she could gain the right to practice law. Id. at 67. The norm under the Privileges and Immunities Clause is comity, i.e. equal treatment. Id. at 64.   Pa. B.A.R. 204 obviously violates the norm. It has the practical effect of impeding interstate travel and handicapping the exercise of First Amendment rights — in order to retaliate against American citizen-lawyers who are residents and citizens from the disfavored states.

In this 21st Century it is our manifest destiny that lawyers and judges must free themselves of this petty tit-for-tat parochial practice.

Permanent Link: NAACP Sue Pa. High Court For State Bar Access

Arizona “Tit-for-Tat” Bar Admission Rule Lawsuit Filed

The ABA, after ten years of meticulous study, recently recommended that States that have “tit-for-tat” Bar Admission on Motion rules for sister-state attorneys should abrogate them, and States that have not yet adopted admission on motion should do so. The NAAMJP consonant with the ABA’s Recommendation and its independent mission statement, “One Bar Exam Is More Than Enough,” recently filed a lawsuit in the United States District Court of Arizona CV 12-1724 PHX-GMA challenging the constitutionality of the Arizona Supreme Court’s tit-for-tat bar admission rules for sister-state attorneys under the First Amendment, Privileges and Immunities Clauses, and the Commerce Clause. Over 20 States have similar tit-for-tat reciprocity rules.
Arizona is also one of ten states that have adopted the Uniform Bar Exam. Brand new lawyers can gain admission on motion in Arizona if they come from a state that has also adopted the UBE. The UBE recognizes a systemic national problem resulting from 50 Balkanized State licensing bureaucracies, and seeks uniformity. In the EU, where 27 languages are spoken, a lawyer licensed in any State is qualified for reciprocity in every State based on a uniform licensing rule.
This federal lawsuit, however, challenges the tit-for-tat nature of Arizona’s admission on motion rule for experienced attorneys that requires attorney’s to re-invent the wheel and take Arizona’s entry level bar exam if they come from a State that denies admission on motion licensing to its lawyers, such as California. This lawsuit also challenges the five years of prior practice requirement. The ABA has determined bar admission on motion is now available in 39 States and the District of Columbia. Forty-thousand lawyers have been admitted on motion to another State in the last five years.
Plaintiffs argue “Tit-for-Tat” Admissions Rules are obvious retaliation intended to provide turf protection. Economic protection is not a legitimate State interest. Public protection further cannot justify this interstate burden on bar admission or the First Amendment right to petition because Arizona does not discriminate against non-reciprocity State attorneys with its Admission Rules for in-house counsel rule, indigent legal services, pro bono, or pro hac vice admission.
Plaintiffs argue that it is arbitrary and irrational to conclude an experienced California or New York attorney or patent lawyer is presumptively unfit to practice law in Arizona, but a freshly admitted law school graduate from a UBE jurisdiction is categorically “good to go.” Plaintiffs further cite research from the cognitive science of “expertise and expert performance” (the 10,000 hour rule), and psychometric testing evidence that confirms it is almost impossible to get subjective test graders to agree on scores.
Plaintiffs cite as the legal basis for a uniform reciprocal licensing rule the Supreme Court’s holding that bar admission on motion is a constitutionally Privilege and Immunity, as are the First Amendment rights to petition the court for the redress of grievances, access to the court, speech, and association, which further includes a constitutional right to be free from compelled association.

Permanent Link: Arizona “Tit-for-Tat” Bar Admission Rule Lawsuit Filed

It’s Not Just Offshore Legal Outsourcing Anymore

As it stands, America outsources over One Billion Dollars in legal work to India and East Asia per year. Now, however, companies are looking to neighboring continents and nations to fulfill their legal needs in what has been coined “nearshore outsourcing.” The amount of legal work taken from American attorneys and given to overseas companies is growing exponentially. Much of the NAAMJP’s fight is to help American attorneys get American legal jobs; rather than outsourcing them to foreign countries. We argue that by letting attorneys practice law in multiple US jurisdictions we are providing the public with more legal options. In our capitalist society, the reason the cream rises to the top and the reason prices can be driven down, is due to an open market with open competition. By limiting the number of attorneys in the market, jurisdictions are forcing their citizens to choose from a smaller market pool that can charge higher fees. This is not the way a society built on open markets and competition operates. We need a change, we need to level the playing field and keep American legal jobs in America.

Permanent Link: It’s Not Just Offshore Legal Outsourcing Anymore

Access to Justice in California Is Inaccessible For Litigants and Out-of-State Attorneys

The California Supreme Court on December 5, 2011 snapped its run of fifty straight affirmed Death Row appeals in a row when it overturned the convictions of two men sentenced to death.  The two men were on Death Row for 5 years before they were assigned counsel.  Almost ten additional years passed before the California Supreme Court decided the case.

In a quote taken by Maura Dolan of the Los Angeles Times, Supervising State Deputy Public Defender Andrew Love noted that, “One of the primary reasons these cases take so long is the shortage of competent lawyers…to handle capital appeals in the California Supreme Court.”

The number of unrepresented parties in California is staggering.  According to the NAACP Legal Defense and Educational Fund, there are 721 inmates on Death Row in California. Of those inmates, over 300 are unrepresented by legal counsel.  California residents’ lack of representation does not stop with murder cases.  In the civil arena, there are approximately 4.3 million unrepresented Californians that representing themselves and their rights in propria persona.

This shortage can be corrected by the State adopting the ABA’s recommendation for admission on motion, as the NAAMJP argues.  Reciprocal licensing has already been adopted in 39 States, allowing forty-thousand experienced lawyers, in the past five years, to be admitted without taking another bar. The NAAMJP represents out-of-state licensed attorneys who specialize in representing the indigent and those facing criminal charges.  It is time for the California Supreme Court to step up to the plate and correct this injustice.

The California Bar Association claims that the limitations placed on non-California attorneys are in place to protect California citizens.  They claim these out-of-state attorneys are not quite good enough based on its 100% subjective bar exam that has a greater than 50% standard error of measurement, which is also not quite good enough according to five nationally respected testing experts.  However, limiting the number of attorneys allowed to practice in California does not protect the unrepresented; to the contrary, it ensures that their rights will go unprotected.  Adopting admission on motion will enable California licensed attorneys to get admitted on motion in other states.  That is one nation, undivided, with liberty and justice for all.

Permanent Link: Access to Justice in California Is Inaccessible For Litigants and Out-of-State Attorneys

NAAMJP Files Lawsuit in Northern District of CA challenging CA District Court's Local Admission Rules

NAAMJP v. USA C11-5481 was filed on November 10, 2011 in the Northern District of California.  The question presented is whether U.S. District Court Local Rules can categorically exclude from general bar admission privileges attorneys licensed in 49 States under the Rules Enabling Act, Supremacy Clause, and the First Amendment.   The Supreme Court has in a related context twice already answered this question in the negative. First, in Frazier v. Heebe, 482 U.S. 641, 648  (1987) the Supreme Court in exercising its supervisory jurisdiction over Local Rules has squarely held complete exclusion of out-of-state attorneys is unnecessary. The Supreme Court held “the location of a lawyer’s office simply has nothing to do with his or her intellectual ability or experience in litigating cases in Federal District Court.”  Id. at 649. Further, the Supreme Court held that the availability of appearance pro hac vice is not a reasonable alternative for an out-of-state attorney who seeks general admission to the District’s Bar.  Id. at 650.

Second, federal law specifically addresses this issue of bar admission on motion. In Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988) the Supreme Court held bar admission “on motion” (without examination) is a constitutionally protected Privilege and Immunity for out-of-state licensed attorneys. The norm is comity, and any departure from the norm is subject to strict scrutiny review.

Also highlighted in the complaint are findings and recommendations of the American Bar Association.  The US Supreme court has recognized that ABA standards and recommendations are “guides to determining what is reasonable.” The ABA has explicitly recommended that District Court Local Rules that exclude out-of-state attorneys should be abrogated.  Further, the ABA MJP Commission and ABA Ethics 20/20 Commission have recommended that all states adopt admission on motion.  65,000 lawyers have been admitted on motion in the last ten years.  40,000 in the last five years.

The complaint also challenges the sacred cow, the ultimate taboo, the validity of the California Experienced Attorney Bar Exam.  Five nationally respected testing experts have concluded that California’s subjective licensing test experienced attorneys are required to hurdle is neither a valid nor reliable test.  The standard error of measurement on this licensing test is over 50%.  .

Stay tuned.

Permanent Link: NAAMJP Files Lawsuit in Northern District of CA challenging CA District Court's Local Admission Rules

October 13: NAAMJP et. al. v California Supreme Court et. al. CV11-5046SBA

On Thursday, October 13, the NAAMJP filed suit in the Northern District of California challenging the validity of the California Bar Exam for Experienced Attorneys. Further, the NAAMJP is petitioning for full licensing privileges for Registered In-House Counsel and Registered Legal Service Attorneys. To view a PDF copy of the complaint and attached exhibits, see our Advocacy In Progress page. http://www.mjplaw.org/pending_litigation.html . Also, see the 360Law.com article at http://www.law360.com/articles/278562?utm_source=targeted-alerts&utm_medium=email&utm_campaign=case-article-alert

Permanent Link: October 13: NAAMJP et. al. v California Supreme Court et. al. CV11-5046SBA

September 7, 2011: ABA Ethics 20/20 Commission Recommends All States Adopt Admission on Motion Provisions for All Attorneys with Three Years of Experience

The NAAMJP litigation to provide lawyers with interstate mobility took a huge step forward, thanks to the ABA Commission on Ethics 20/20. On September 7, 2011, the Commission concluded that the ABA should adopt amendments to the Rule on Admission by Motion that would allow lawyers to qualify for admission by motion with three years of experience. In its report explaining its conclusion, the Commission noted that they “examined many ways in which globalization and technology affected the legal profession, including the increasing importance of cross-border practice,” and concluded that, “additional changes are necessary in light of technological developments, economic trends, and client needs and demands.” The Commission cited two key factors leading to their recommendation for reducing the length of practice requirement in the Rule for Admission by Motion. First, market and client demands in an increasingly borderless world are fueling the need for lawyers to gain admission in other jurisdictions. Second, lawyers often need to move to new jurisdictions for a wide range of personal reasons, including the need to find employment.
Admission by motion procedures now exist in forty jurisdictions. The Commission’s research revealed that more than 65,000 lawyers have used the procedure in the last ten years. The Commission also found that there is no evidence that lawyers admitted by motion are more likely to be subject to discipline, disciplinary complaints, or malpractice suits than lawyers admitted through more traditional procedures. The Commission further declared that female lawyers were particularly injured by the failure to have admission on motion privileges.
The main criticisms against Admission on Motion were addressed by the Commission. First, the Commission considered the concern that a lawyer who has practiced for only three years may not be sufficiently competent to practice law in a new jurisdiction. However, the Commission “found no reason to believe that lawyers who have been engaged in the active practice of law for three of the last seven years will be any less able to practice law in a new jurisdiction than a law school graduate who recently passed the bar…” They further concluded that, “the ‘local’ law concern falsely assumes that passage of the bar examination demonstrates competence in local law.
The Commission asks that “the ABA adopt the resolution urging jurisdictions that have not adopted the Model Rule to do so and, in particular, to do so without imposing additional restrictions, such as reciprocity requirements” finding.
The NAAMJP’s representative testified in person before the Commission, and further submitted written argument supporting enhanced admission on motion. The NAAMJP briefs in Blye v. Kozinski (9th Cir. 10-17032)(challenging Federal District Court Local Rules that do not have admission on motion privileges for all sister-state attorneys) have been posted on the Commissions web page.
A copy of the Commission’s Report can be found at the below link: ABA 20/20 Recommendation

Permanent Link: September 7, 2011: ABA Ethics 20/20 Commission Recommends All States Adopt Admission on Motion Provisions for All Attorneys with Three Years of Experience

Ninth Circuit Sets Oral Argument in NAAMJP lawsuit challenging Federal District Court Rules that Categorically Deny General Admission Privileges to All Sister- State Attorneys

The Ninth Circuit set oral argument in Blye v. Kozinski for November 14, 2011 at 9:00 am in San Francisco. The NAAMJP argues this federal discrimination in federal bar admission (based on forum State law) is an overbroad, prior restraint on the First Amendment rights to petition, association, and speech; it unlawfully inverts the Supremacy Clause by making State law preempt federal law; and it violates the Rules Enabling Act. See our Advocacy In Progress Page. The ABA recommended that this federal discrimination in federal bar admission be eliminated, reasoning that these parochial admission rules drive-up the costs of litigation, interfere with the right to counsel, and are anti-competitive.

Permanent Link: Ninth Circuit Sets Oral Argument in NAAMJP lawsuit challenging Federal District Court Rules that Categorically Deny General Admission Privileges to All Sister- State Attorneys

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