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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.

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