The NAAMJP has petitioned the Ninth Circuit Judicial Council on October 12, 2009 to review all federal district court “local” rules, and to follow the ABA’s recommendation for reciprocity.
This Honorable Judicial Council has a mandatory duty to periodically review the District Court “local” rules; and it is authorized to abrogate any “local” rule in its circuit that contradicts 28 U.S.C. §§ 2071 or 2072. 28 U.S.C. § 332 (d)(4) provides:

Each judicial council shall periodically review the rules which
are prescribed under section 2071 of this title by district courts within its
circuit for consistency with rules prescribed under section 2072 of this title.
Each council may modify or abrogate any such rule found inconsistent in the
course of such a review.

The Reporter comments specify there is no such thing as a rule becoming sacrosanct from passing prior review.

Below is a graphic representation of bar admission based on either national rules [FRAP 46, Supreme Court Rule (5)] or laws enacted by Congress [5 U.S.C. § 500]. All sister-state attorneys are entitled to practice before these federal courts. The national Rules are approved by Congress.

Below is a graphic representation of the federal district court “local” bar admission Rules.

District Court “local” rules in Pennsylvania, Ohio, Tennessee, and Missouri are divided. Some mandating forum State bar membership and others provide full reciprocity. This federal inconsistency demonstrates forum State bar membership is not necessary.

Below is a graphic representation of the federal district court “local” bar admission rules when the U.S. government is representing itself.

28 U.S.C. § 2071. Rule-Making Power Generally, in pertinent part provides:

(a) …Such (local) rules shall be consistent with Acts of Congress and rules of
practice and procedure prescribed under section 2072 of this title.

28 U.S.C. § 2072. Rules of procedure and evidence; power to prescribe, provides:

(b) Such (local) rules shall not abridge, enlarge or modify any substantive
right.

These U.S. District Court “local” general bar admission rules violate both of these statutory standards. First, the “local” attorney admission rules are not consistent with the national attorney admission rules as is required by 28 U.S.C. § 2071(a). Rules prescribed under 28 U.S.C. § 2072 are approved by Congress. Congress has authorized every State-licensed attorney to obtain reciprocal bar admission and practice before the U.S. Courts of Appeals (FRAP 46), federal administrative agencies (5 U.S.C. § 500), and in the U.S. Supreme Court (Rule 5) there is only a three year experience requirement. All sister-state attorneys are presumed equal.

Second, the local rules further trespass 28 U.S.C. § 2072(b) because they enlarge the privileges of forum State attorneys and they modify and abridge the rights of non-forum State attorneys.

The Judicial Council standard of review of these local rules is not rational basis. The Judicial Council heightened scrutiny standard of review is set forth in 28 U.S.C. § 2071(a) and § 2072(b). Congress, in revising the Rules Enabling Act in 1988, has decreed local Rules shall not favor any person or group.

Case law from over twenty years ago concludes forum State admission is necessary because the federal district court does not have discipline apparatus, and thus must rely on the forum State. This rationale, however, has been rejected by the Supreme Court. It has repeatedly held it will not presume that any attorney will violate his professional obligations, or not familiarize himself or herself with local law. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985); Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1987)(holding admission on motion is a constitutionally protected privilege and immunity). The High Court has further squarely held difficulties in policing a nation-wide bar does not justify discrimination in bar admission. Barnard v. Thorstenn, 489 U.S. 546, 556-57 (1989). More specifically, there is also no reason to speculate any State will shirk its duty to investigate and discipline its attorneys. States today generally claim jurisdiction to discipline any attorney living or working in the State regardless of where he or she is licensed.

According to the ABA, experienced attorneys should not have to take another Sate bar exam to practice in the federal district courts. Federal practice and procedure are supposed to be uniform and guided by federal law. U.S. District Courts have exclusive jurisdiction over many areas of federal practice, such as patents, trademarks, copyright, securities, and bankruptcy. As implied in the ABA’s MacCrate report, bar exams do not measure nine out of 10 fundamental lawyering skills. As to the one skill it does test, Dr. Geoff Norman has written it is almost impossible to get essay graders to agree with each other. If federal district courts grant general bar admission privileges to novice forum State attorneys then general bar admission should be granted to experienced sister-state attorneys.

The plaintiffs, and the certified class they represent are graduates of accredited out-of-state law schools who want to practice law in Wisconsin. The Wisconsin Supreme Court admits newly minted graduates of state law schools to practice without requiring them to take the bar exam. Wisconsin is also among the 38 States that provide admission on motion to experienced attorneys. Plaintiffs argued Wisconsin’s “diploma privilege” discriminates against graduates of out-of-state law schools who would like to practice law in Wisconsin. The 7th Circuit published decision written by Judge Posner remanded the case for a determination of whether the challenged favoritism for Wisconsin law school graduates violates the Commerce Clause. See PDF http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=08-2527_004.pdf
The case was remanded to allow plaintiffs an opportunity to prove their claims.

Hat tip: Inside Higher Ed. and ABA Journal Daily Newsletter [abajournalereport@abanet.org]

The Chair of the Oregon Committee of Bar Examiners, the Hon. Jill Tanner, writes: “One of the primary duties of a lawyer is to protect the public interest – to ensure that justice is served and that laws are followed. But how can a lawyer effectively protect the common good in a world of change? Oregon’s current rule allows reciprocal admission only with Alaska, Idaho, Utah and Washington. Each of those states is one of the qualifying jurisdictions in the proposed rule. If the rule is enacted, Oregon attorneys could seek admission in 37 qualifying jurisdictions without taking another bar examination. In addition, attorneys licensed in those same qualifying jurisdictions would be allowed to be licensed in Oregon without taking the Oregon bar examination. California is not one of the qualifying jurisdictions because it does not grant reciprocal admission on motion. Judge Hatter writes: “economic protectionism created by barriers to entry may invite constitutional challenges, and it shows little concern for those whom attorneys should serve. Finally, there is no evidence that a disproportionate number of disciplinary matters arise when attorneys are admitted without taking another bar examination.” All written comments should be directed to the Oregon Supreme Court in care of the Board of Bar Examiners to admission-on-motion@osbar.org. Written comments must be received no later than 5 p.m, Thursday, Oct. 1. http://www.osbar.org/publications/bulletin/09jun/member.html

The practice of law has become nationwide and global. Unfortunately, the licensing process for U.S. attorneys has not caught up with today’s reality. The mental model that requires experienced attorneys to re-invent the wheel and take another bar exam to obtain licensing in another state is as outdated as the separate but equal era in the 21st century.

A bar exam, like driver’s license testing, is predictive in nature and designed to measure entry level skills. The purpose of the exam is to model what a beginning attorney would confront in practice and thus to provide a measure of comfort that the public will not be injured. The fact that an attorney is already licensed and practicing successfully in another jurisdiction is the best evidence of competence – the proof is in the pudding. The United States Supreme Court has held that there is no reason to presume that an out-of-state attorney will not become familiar with local law or disserve the public. Thus, the mere fact experienced attorneys are required to take another licensing exam illustrates the exam is suspect.

Digging deeper into the licensing function, Robert MacCrate, Esq., was the chair of the ABA’s Task Force on Law Schools and the Profession. The “MacCrate Report” identifies 10 fundamental lawyering skills: (1) problem solving, (2) legal analysis and reasoning, (3) legal research, (4) factual investigation, (5) communication, (6) counseling, (7) negotiation, (8) litigation and alternative dispute resolution, (9) organization and management of legal work, and (10) professional self-development.

A pen and paper bar examination cannot and does not test nine of the ten skills identified by the MacCrate Report as fundamental to the successful practice of law. The only identified skill that can be tested is legal analysis and reasoning. Dr. Geoff Norman is a well known and highly respected psychometric expert who has 30 years of experience in the field and has written numerous articles for The Bar Examiner. Dr. Norman reports, “Study after study has shown that it is almost impossible to get judges to agree on scores for essay answers.” For example, California’s licensing exam for experienced attorneys is 100 percent subjective. The RAND Corporation reports a 23 percent or less agreement among graders of the exam. Deborah Rhode, a Stanford law professor, reports that there has never been a study proving a correlation between passing a bar exam and competently practicing law. Yet, two out of three already licensed attorneys are disqualified for California licensing based on a high-stakes licensing test that has no other purpose other than to limit supply and increase demand.

Imagine, if you took an AIDS test, and the test results 23% of the time were the same, and there was no proof the test had any correlation with having the virus? This putative re-testing scheme is a cancer that needs to be removed by any and every means necessary.

Many bar examiners at the state and national level know these indisputable facts. They have a code of silence that permits each of them to make money off the profession by selling additional bar exams. They are by silence perpetuating the status quo long after the quo has lost its status.

Join the NAAMJP www.mjplaw.org. Let’s connect the dots and disconnect this code of silence.

The Los Angeles Times on June 2, 2009 reported that Harvard Law School graduate Luz Herrera stated: “Ninety percent of the population needs a new model for legal services.” Herrera said: “There’s only a system [of legal representation] for the well off, and for the very, very poor.” Herrera hung up her shingle in Compton, California, home to 50,000 Latinos, and took on the kinds of cases that typically are the bread and butter of small-town attorneys — divorce and child custody, bankruptcy, probate and real-estate transactions. Herrera said, “I learned to think like a lawyer there (Harvard)… I learned how to be a lawyer here. That’s what Compton gave me.”

Chief Justices, Others, Consider Ideas On Regulating Lawyers in Global Setting

The ABA/BNA Lawyers’ Manual on Professional Conduct, 25 Law. Man. Prof. Conduct 300, reports an invitation only event, “The Future Is Here: Globalization and the Regulation of the Legal Profession” was held on May 27, 2009 in Chicago. Some conference participants expressed concern about tackling internationalization when the United States has yet to implement a driver’s-license approach to domestic multijurisdictional practice. ABA President-Elect Carolyn B. Lamm told the audience that this country simply does not have the luxury of avoiding the issues. Panelist Anthony Davis of Hinshaw & Culbertson in New York cited what he sees as the absurdity of state-by-state regulation of lawyers favors national, uniform regulation of the legal profession. It makes no sense for a team of lawyers to be working under multiple sets of rules, Davis said.

The NJ Supreme Court Lightens Up on In-House-Counsel Licensure by a Micron for Unemployed Lawyers

Charles Toutant, of the New Jersey Law Journal on June 8, 2009 reported the Court said an in-house lawyer whose employment is terminated need not re-apply for a license if the Court is notified of new employment within one year, rather than the prior 90 day period. The Court also said registered in-house who are terminated may continue to work on a contract or per diem basis for his or her former employer, without having to get a plenary license, and provide pro bono if other hoops are swished from the three point line. These micrometer (millionth of a meter) were made in consideration of the plight of lawyers laid off from their corporate jobs.

See http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202431313861

By Joseph Robert Giannini

Full PDF Article available here.

Jeffrey Russell Remarks Prepared For The ABA Commission On Multi-Jurisdictional Practice

Full PDF Article available here.