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IN THE SUPREME COURT
OF THE STATE OF NEW MEXICO
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RECOMMENDATION AND
PETITION IN SUPPORT OF
AMENDMENTS TO THE RULES
GOVERNING ADMISSION TO
THE BAR OF NEW MEXICO TO
PROVIDE FOR RECIPROCAL
ADMISSION BY MOTION
No. - - - - - - - - - - ­
SUPREME COURT OF NEW MEXICO
FIL.ED
MAY - 2 2013
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The New Mexico Board of Bar Examiners (14Board"), an agency of the New
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Mexico Supreme Court. hereby recommends and petitions the New Mexico
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Supreme Court to adopt amendments to the New Mexico Rules Governing
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Admission to the Bar (NMRA J5, 101 et seq.), as set forth in the attached proposed
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rule changes (Tab l). This recommendation and petition follows a special meeting
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of the Board on February 21, 2013 during which, by a vote of 7 for and 3 against.
the Board voted to recommend to this Court adoption of reciprocal admission by
motion in New Mexico.
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Background
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Currently, with the limited exceptions of University of New Mexico Law
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School faculty (NMRA 15-103), attorneys employed with certain legal services
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entities (NMRA 15-301.2, certain public employees (on a temporary basis, pursuant
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to NMRA 15-301.1), and pro haec vice practitioners, applicants may obtain a license
to practice law in New Mexico by applying for admission, which requires taking and
passing the New Mexico bar examination, successfolty completing character and
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fitness review, and meeting other requirements. Even lawyers
fmm other
jurisdictions who have successfully practiced law for many years are required to take
and pass the New Mexico bar examination.
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In contrast with the vast majority of American jurisdictions, attorneys cannot
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gain admission to practice law in New Mexico by motion or under any form of
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reciprocity with other states. 20 I 3 Comprehensive Guide to Bar Admission
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Requirements (Comprehensive Guide)', Charts l lt 12.
As one result of this situation, New Mexico attorneys applying to practice in
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other states are prohibited similar access to admission in those states without taking
and passing a bar examination. Mobility of la\l."yers from New Mexico and other
jurisdictions is thereby impaired.
Choice of counsel of clients and prospective
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clients is unnecessarily restricted. The reality of transboundary law practice is not
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served by New Mexico s lack of admission by motion.
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Following extensive and ongoing study, discussion and contemplation, the
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Board of Bar Examiners hereby respectfully recommends and petitions this Court to
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amend New Mexico's Rules Governing Admission to the Bar (NMRA 15~101 et seq.)
to allow admission by motion with redprocity. Such changes are necessary to meet
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the realities of modem law practice and trnnsboundary commerce, serving the
interests of clients, prospective clients, and the members of the New Mexico bar.
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Changes in New MexicoJs Bar Admission Process are Necessary and Desirable in
Order to Adapt to and Reflect Modern Realities, Including That Law Practice
and Commerce Take Place on an Increasingly Transboundary Basis
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The anachronistic notion that a local bar examination is necessary to test an
experienced attorney from another American jurisdiction for minimmn legal
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competence is a relic of a bygone time, which to the extent it persists in tbe 21st
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century, exists as a form of economic protectionism for the benefit of lawyers in
those few jurisdictions who continue to adhere to it. This outdated concept is a
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restriction that serves only " ... to sustain outdated and parochial purposes at a time
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when the relevance of borders to the competent practice of law has and will
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continue to erode.u ABA Commission on Ethics 20/20 Report to the House of
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Delegates\ p. 5.
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The evidence demonstrates that considerations of economic protectionism,
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besides being irrelevant; arc not based on fact. Ar, shown in information published
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in the March, 2013 edition of The Bar Examiner1 at page 26, 27 and 29, adoption of
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reciprocal admission by motion does not result in floods of lawyers from other
jurisdictions seeking ta gain reciprocal admission by motion. As well. even without
admission by motion, many lawyers practice in New Mexico without being licensed
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in New Mexico, by pro haec vice (Tab 2# information compiled by the State Bar of
New Mexico relating to pw ha.ec vice admissions for the indicated years), in Federal
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Court (D.N.M. LR-Civ. 83.Zt 83.3 and D.N.M. LR-Cr. 44.1), and by association
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with local counsel. Obviously, hrwyers or law firms from outside New Mexico
wishing to practice in Ne\v Mexico can and do find a legal \\.'TI.y to do so without a
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New Mexico law license.
Arguments against motion by admission whether or not grounded solely on
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considerations of economic self.interest1 may be advanced by la·wyers who may feel
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threatened by the prospecc of other, experienced attorneys becoming licensed in
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New Mexico without having to "run the gauntlet" of a bar examination. But the
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Board's role is not to protect, or continue protection of, New Mexico attorneys from
competition, real or imagined. Rather, the Board's j<)b is focused on protecting the
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public, including legal consumers, by ensuring that those who are granted a license
to practice law in New Mexico are qualified
by education, knowledge, character and
fitness to do so.
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Requiring experienced lawyers from other American jurisdictions, who have
sound discipli.naiy 1 character and fitness records, to take a bar examination to
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demonstrate minimum legal competence is wholly at odds with appropriate rule.
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making regarding regulation of the legal profession. A~ this Court has stated,
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••... !t]he [legal! profession has a responsibility to assure that its regulations are
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conceived in the public interest and not in furtherance of parochial or self~interested
concerns of the bar. t (Citations omitted). Ro)' D. Mercer, LLC v. Gandy Dancer, LLC~
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2013#NMSG002 (2012).
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A.
New Mexico Should Join the lvfojority of ..A..merican Jurisdictions and
Adopt Admission by Motion
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Admission by motion with or without reciprocity has been adopted in most
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United States jurisdictions, leaving New Mexico as an outlier in this respect.
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Comprehensive Guide, Charts 1 l, 12. This overwhelming trend towards admission
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by motion responds to the reality that local bar examinations are both unnecessary
and irrelevant to determine minimum required legal competence of experienced
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attorneys\ as well as to client, professional and personal interests and demands for
national, regional and other transhoundary access to legal services.
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In August1 2012, th.e American Bar Assodati.on (ABA) House of Delegates,
approved revisions to the ABA Model Rule on Admission by Motion. 5 Reference is
made to the ABA's studies and publications which are cited herein, as well as to
other literature concerning admission by motion, including those articles attached as
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Tab 3.
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There is no point in rehashing or reiterating the ABA's research into the
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benefits of multijurisdictional prnctket including admission by motion as a primary
catalyst. Nor is chere benefit in parroting the many commentaries on this subject.
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+ See e.g., Ke Kanawai Mamalahoe: Equalicy in Our Splintered Pwfession, 3.3 U. Haw.
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Law Rev. 249 (2010).
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The reasons to adopt reciprocal admission by motion are not only well documented,
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they can be said to be self-evident.
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In general; the Board endorses the ABA\; reasonit1g with regard to admission
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by motion. Hmvever, as discussed below, the Board diverges with the ABA In that
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the Board recommends admission by motion on a reciprocal basis, rather than on a
totally open basis. Also as discussed below, the Board's recommended rule changes
relating to admission by motion differ from the ABA's model rule in other respects,
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including tightening definitions of qualification criteria.
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B. The Proposed Rules Changes Will Better Serve and Protect Clients of
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Lawyers Admitted to Practice in New Mexico
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Providing for admission by motion would enable clients to benefit from access
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to
a wider range of attorneys.
Further, admission. by motion would also enable
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clients to continue to utilize their counsel of choice, including New Mexico
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attorneys, across state lines as the need arises.
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The proposed rules changes are designed to continue to protect, through
quality control criteria, clients of New Mexico lawyers, including those lawyers
admitted by motion. Applicants for admission by motion must have earned a lavv'
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degree from an ABA-accredited law school and have passed the Multi.state
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Professional Responsibility Examination with the
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designated
scaled score.
Additionally1 applicants for admission by motion must have engaged in the active
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practice of law for five (5) of the prior seven (7) years in a reciprocal jurisdiction;
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successfully meet New Mexico's character and fitness and other qualificadons6; and
be in good standing in the subject reciprocal jurisdktion(s), without any pending
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disciplinary complaints.
Supported by research and common sense, the Board is of the opinion that a
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qualifying record of active law practice without disqualifying disciplinary or other
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character and fitness issues, is without: doubt more compelling evidence of at least
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minimum required legal competency than is a bar ex.'lmination.. This point bears
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special emphasis in consideration of New Mexico's comparatively quite modest bar
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examination grading and scoring requirements (Comprehensive Guide, Chart 9),
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combined with New MexictJ's current essay grading paradigm which is based on
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issue~spotting but does not add value for demonstrated analytical ability.
With the exception of Community Property law, examinees currently are not
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required to demoastrate specific familiarity with New Mexico law in response to
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essay questions. This fact further calls into question any reason for experienced
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This is in favorable comparison with pro haec vice admission
wherein there in no character and fitness evaluation.
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In New Mexico,
attorneys to be required to sit for the bar examination. Moreover, the proposed rules
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changes require that every applicant for admission by motion, prior to
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recommendation for admission, attend and verify attendance at and completion of a
course on Indian Law and New Mexico Community Property Law. With this added
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proposed requirement, the need for familiarity with both Indian Law (which is
principally Federal law) and New Mexico Community Property Law ls addressed,
likely in a more effective and lasting manner than would the possibility of having to
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answer an occasional bar examination that may touch on one of these subjects.
c.
The Proposed Rules Changes Are in the Public Jnterest, Affording New
Mexico Attorneys and Thei.r Clients Reciprocal Benefits
It is beyond cavil that law practice is a transboundary reality, as are other
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professional practices such as medicine and accounting. Commerce in general is
increasingly less governed by political boundaries.
The proposed rules changes
reflect modern realities. New Mexico attorneys would be able to continue to serve
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their clients in reciprocal jurisdictions, and their clients would be able to continue
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with representation by their choice of counsel.
As well, 2 l 't century society is increasingly mobile. For example, should the
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need arise to move to another jurisdiction due
to
a partner's .or spouse's transfer, a
New Mexico attorney may need to become licensed to practice law in one or more
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additional jurisdictions. Such a sinrntion may arise with particular frequency or
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urgency if the attorney's partner or spouse is a member of the military7 • Preparing
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for and travelling to take a bar examination in another jurisdiction is obviously a
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time-consuming effort, which may be impractical and will always result in significant
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delay and expense.
AB previously noted1 it is not diftlcult for lawyers who are not licensed in New
Mexico but who are licensed elsewhere to nonetheless practice law in New Mexico.
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See pp. 1-2, 4. Admission by motion, unlike other methods currently available to
out;.of-state practitioners to practice law in New Mexico, will require applicants to
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meet rigorously defined quality control criteria, including character and fitness
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vetting. Such is dearly in the public's interest1 as well as in the interest of the courts
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and the bar in general. lt is difficult if not impossible to reconcile the current
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acceptance of various mear1s by which out-of--state lawyers can practice law in New
Mexico without a New Mexico law license, with objections to admission on motion.
Next, attention is to be paid to the principle of reciprocity. The proposed
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rules changes, if adopted, would allow New Mexico attorneys reciprocal
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opportunities to become admitted in numerous other jurisdictions without having
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to sit for a bar examination and thereby facilitate New Mexico attorneys, ability to
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represent clients and compete both regionally and nationally, move to 0th.er
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jurisdktions1 recruit new lawyers; and otherwise benefit from an increased ability to
practice on a transboundary basis. In other words, New Mexico lawyers stand to
gain at least the same benefits from reciprocal admission by motion as those
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attorneys who may choose to seek admission by motion in New Mexico, It is
unsurprising that surveys of New Mexico bar membership show that a majority of
New Mexico licensed attorneys support reciprocal motion by admission. Tabs 4 and
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5.
We are informed that Tub 4 is a 2004 Membership survey, and that it was
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mailed to all active members with results posted on the Bar s website. See question
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7 3 on page
5 thereof. We are also informed that the critkism received regarding
this question was that a follow up question was not asked about support; only
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whether members thought it was important. 69% thought it was very important or
important. That criticism appears to have been adequately addressed by the
relevant questions asked in a 2011 Membership survey (Tab 5) which was also
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mailed to all active members. See page 5 of Tab 5 for questions about reciprocity
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and tJro haec vice. We are informed that these data \Vere also published on the Bar's
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website.
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D. Lawyers Admitted Elsewhere Can and Do Practice Law h1
New Mexico Whether or not Being Licensed
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We have already noted how at present and through various legitimate means,
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lawyers who are admitted elsewhere but not in New Mexico can nonetheless practi.ce
law in New Mexico. Even so, the bar examination is not necessarily a deterrent to
those attorneys from other jurisdictions who seek admission to prnctke in New
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Mexico.
It is empirically established that attorneys from other jurisdictions,
including highly experienced attorneys, will sit for the bar examination in order to
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become licensed in New Mexico. For examplet 86 of the 148 applicants who sat for
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the February 2013 New Mexico bar examination are admitted in at least one other
jurisdiction. 16 other applicants were admitted to practice elsewhere, but chose to
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defer taking the exam. Of the 86 attorney-applicants who sat for the bar exam, 54
indicated that they have been licensed to practice law since 2008 or earlier, and 8
indicated that they had bee11 licensed since 2009. 12 of the 16 attorney applicants
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who chose to defer taking the examination had been licensed since 2008 or earlier.
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lt is noteworthy that only 2 licensed attorneys of the 86 licensed attorneys who sat
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for the Febrnary, 2013 New Mexico bar examination failed it. This is consistent with
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the 95% pass rate by firsHime takers of this most recent New Mexico bat
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examination. All of the above serves to underscore why most jurisdictions have
abandoned a bar examination requirement for experienced lawyers licensed
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elsewhere.
Evidently, attorneys do not seek admission on motion simply because it is
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available, nor do they seek reciprocal admission on motion in large numbers where
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such admission is available. The Bar Examiner, March, 2013, pp. 26 1 27 1 2911• The
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fact is that being an active member of the bar requires financial obligations,
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continuing legal education, and other commitments that mean reciprocal admission
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by motion is unlikely to be sought on a whim.
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II.
Admission to
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With regard to the drafting of the recommended rules changes~ a number of
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other jurisdictions' rules regarding admission on motion were reviewedt as was the
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ABA's Model Rule on Admission by Motion.
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j;\tww.i:u::l;srx.ori:/asset&/mh:dia flies/Bar·
~~~1.Attdi;'..sLlO J.3/820113ahridttt·d.pd f
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As well, relevant case law was
considered. Ultimately, the proposed rules changes borrow most heavily from the
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ABA Model Rule and Arizona)s Rule.
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The ABA Model Rule does not contain a redprodcy requirement, and the
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ABA counsels against such. The Arizona Rule is reciprocal, as is the case with most
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jurisdictions which have adopted admission by motion.
Comprehensive Guide,
Charts 1 L 12. Contrary to the ABA's viewt but consistent with the majority of
admission~by·motion
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jurisdictions, it is the Board s view that reciprocity is an
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important part of a fair admission by motion process. A New Mexico attorney
should be afforded the same opportunity and ability to secure admission to practice
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law in other jurisdictions as attorneys from such jurisdictions who seek the
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opportunity to become licensed in New Mexico. Correspondingly, clients of New
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Mexico lawyers should benefit from being able to continue with their counsel of
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choice should they have need of legal representation in other (reciprocal)
jurisdictions; just as would clients of lawyers from reciprocal jurisdictions who seek
admittance to practice law in New Mexico. "To secure for her citizens the reciprocal
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right'i and advantages obtained under such [professional licensing] statutes or rules is
manifestly a legitimate interest and goal on the part of a state just as it is a legitimate
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interest of one nation to secure reciprocal property rights for its citizens in other
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nations.... Reciprocal statutes or regulations, it has been uniformly held} are
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designed to meet a legitimate state g()al and are related to a legitimate state interest."
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Hawkins v. Moss, 503 F.2d 1171,
1177~78
(4 1h Ch:. 1974). cert. denied 420 U.S. 928
(1975). See afao, Gold.smith v. Pringle, .399 F.Supp. 6ZO (D. Colo, 1975); In re Conner1
917 A.2d 442, 450451 (Vermont 2006) icmd Spencer v. Utah State Bar, 293 PJd 360
(Utah 2012)9• See also discussion at Annot.• 14 A.LR.
4th
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The fee required for admission on motion can and should be set at an
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amount substantially higher than the cost to take the bar examination. As shown in
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the Comprehensive Guide, Chart 11, jurisdictions whkb have adopted admission by
motion have established a substantial application fee.
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The Board recommends a non-refundable applicat[on fee of $2.500.
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]ustifications for this fee include 1) processing of additional applications, including
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but not limited to ferreting out potential character and fitness issues is ti.me~
consuming and expensive; 2) the suggested fee will assist i.n defraying the ever..
increasing costs of character and fitness investigations, hearings and other
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The constitutionality of Arizona's reciprocity requirement is currently the subject
of litigation. National Association fo1 the Advancement of Multijurisdictional Practice et
aL v. Hon. Rebecca White B1.trch, et al., CVlZ.01724, United States District Court for
the District of Arizona,
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proceedings; 3) in comparison with costs an applicant would incur in preparing and
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sitting for a bar examination, the suggested fee is modest; and 4) as with pro haec vice
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foes, a portkm of the admission on motion application fees can and should be used
to assist funding Ne\v Mexico's Access to Justice Grant Committee, thus ensuring
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that applicants who apply for admission on motion contribute to the public good.
CONCLUSION
This recommendation and petition proposes an additional path for admission
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to practice law in New Mexico. This is a matter of importance not only to this Court
and the Board, but certainly t<) the public and the bar. The Board recommends that
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prior to taking action on this recommendation and petition, the Supreme Court 1)
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cause to be published the proposed rule amendments in the New Mexko Bar
Bulletin, on the State Bar's website, and such other and further publications and
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locations as the Court deems appropriate; 2) provide a period of comment from the
public, the bar and other interested parties; and 3) provide an opportunity for the
Board to respond to such comments. Meanwhile, the Board proposes to circulate
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the draft rules changes to other jurisdictions, to ensure that if this Court adopts the
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proposed rules changes, potential reciprocal jurisdictions would grant qualified New
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Mexi.co attorneys reciprocal admission on motion. Thereafter, the Board respectfully
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requests that the Supreme Court order adoption and implementation of reciprocal
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admission by motion in New Mexico.
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Respectfully submitted on
Behalf of the Board of Bar Examiners
s
Howard R. Thomas
Chair, New Me.xico Board of Bar Examiners
May 2, 2013
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TAB3
'
~
SlATEBAR
of
NEW MEXICO
Reciprocity
EXECUTIVE SUMMARY ON RECIPROCITY
Law students Daniel Marquez and Patrick Redmond. under the supervision of University of
New Mexico Law Librarians Barbara Lah and Alexandra Siek, researched the issue of reciprocity and
bar membership. This is a short summary of the memorandum discussing the findings of thnt resenrch.
CoHectiveJy the memos discuss the following issues raised by reciprocity: l) the vnrious forms of
reciprocal licensing schemes: 2) the impact that reciprocal licensing has had on bar membership~ 3) a
comparison of reciprocal licensing to admission pro hac vice; 4) legal issues such as constitutional
concerns raised by the adoption or rejection of reciprocity; and 5) professional issues.
Before delving into these topics and the arguments for and against reciprocity h is important to
become famiJiar with the history of professional regulation, reciprocal licensing, and the development
of restrictions on interstate practice, Until the em of the Great Depression, reciprocal licensing under
admission on motion was the rule rather than the ex.ception. 1 During the latter half of the twentieth
century, however. as improved transportution and communications facilitated multijurlsdictional
practice. some states reacted by repealing their reciproca] admission rules. 2 After a 1998 case stirred
the waters3, the American Bar Association created a Commission on Multijurisdictional Practice, which
resulted in a model rule for admission on motion, designed to ease impediments to attomeys• national
mobility. 4 Some states followed with new rules for reciprocal licensing, admission on motion nnd
admission without examination, 5
Critics of multljurisdktiona1 practice reform remain, however. Some have raised states' rights
and inherent powers concerns. 6 Others have argued that argued that "state licensing assures quality
control among Jawyers and protects clients from incompetent practitioners."7 Still others have cast
multijurisdictional prnctice refomi as part of a trend toward encroachment on the legitimate practice of
law by non-lawyers. Proponents of reform have answered that state Ucen.-;ing and regulation would
continue under the ABA proposal. Further. a larger pool of specialized practitioners would more likely
tmhance than detract frotn the quality of legal services in the .state. 8 Refonn ~ponents have suggested
Uuu opponents' real motive for retaining barriers is economic protectiouism. Even the U,S. Supreme
Court has repeated the comment that many states that have "erected fences against ouN>f-state lawyers
have done so primarily to protect their own lawyers from professional competition.'' 10 Apart f:rom
practical nnd professional issues. state harriers to multijurisdictioual practice would seem to be
disfavored under the Article IV Privileges and Immunities Clause. the Fourteenth Amendment
Privileges and lmmunities Clause and the dormant Commerce Clause, among other provisions.
To be clear, the basic idea behind reciprocity is that the foreign attorney is granted fu!J
admission and licensure with the forum st.ate bar associarion without having to take that state's bar
'RICHARD L :\rHi'l, AMI:.RK.M> LAIVYLRS J J 5·1!:\119891.
: .Set', t>.g.. M!cliaef P. Crow. /,f Nrcfpl'tk'ily Making a Comebru:k?. 73 J. KAN. B. A5s's -'!Oct, 1()04).
' Simo\\ ct v, Superior Cmm of Sant.a Clam Coutlt). 9+9 f' Zd I (Cal. l•Nl:!),
'MJA Model Rule an Admi.uimr h.V Jlmim1. ti.u.iii.tbft: at litt12·.dw" 1~,iJh;im.'!.11~ij\nrtm;rJfrnul !1JIP rp! !217n:tpdi; ld. at 50.
" Sec Mwrlc fanscn, .UJP Pick,: Up Sr<'<rm: More> Srrues ~rt' l.1.wJki11g ill ALM Propo.rofs w Emw kufes 011 M11!1ijuristficlioool Prtrc1ice. 90
,.UtA. J. 43. -is clan. 2004).
~Set' Gary A. ,\ftunncke. MrfftijuYisdit'rit1m;1J Prat:Jice ojlnl•·: R«wrt Dewdopnumls in 1fie 1'/(1Jf<>nal Debatr, 27 1 Lf:VAI. PROF. 91, !06
t20lll!.
fd.
'ld. at !07.
• !tl.
r•> Supreme Coun: ot' New llampshirc v. riper. -tW t:.S. 214, J~5 ( 198:5) cqooting.Smit.h, Timejiira Nari/ma! Pn:tNit·e of Law Aa. 64
A.B.A.J. S57 (l'f/lij).
.
examination. But the requirements for such admission differ from state to state. It is helpful to identify
the different licensing schemes in the following manner.
There are basically three licensing methods in use labeled "general reciprocity," "limited
reciprocity," and "strict reciprocity." 11 "General reciprocity" is the most open and flexible form of
reciprocal licensing. Normally any qualified attorney from any state is ;ranted bar admission in a
•·general reciprocity" jurisdiction. Texas 12 and the District of Columbia 3 employ "general reciprocity:·
"Limited reciprocity" is the intennediate form of reciprocal licensing. Under this system only
attorneys from jurisdictions that would extend a reciprocal license to an attorney from the granting state
may receive reciprocal admission. Colorado 14 and Alaska 15 are "'limited reciprocity'' jurisdictions .
..Strict/Specific reciprocity" is the most restrictive form of reciprocal licensing. A "strict/specific
jurisdiction" will only offer reciprocal licenses to attorneys from specific states. Maine 16 has a
«strict/specific reciprocity" agreement with New Hampshire and Vermont. Depending on the state its
reciprocal licensing scheme may have been in place for decades or perhaps only a few years.
The next issue covers what effect, if any, the existence or adoption of reciprocity in a state had
on bar membership and admission by examination. Extensive research in this area found no oouclusive
or correlative evidence that suggested the adoption of reciprocity attracts inordinate numbers of out-of­
state attorneys or appreciably reduces the number of applicants sitting for examination. A blanket
conclusion that the adoption ofreciprocity, especially an expruisive form like "general reciprocity," has
no cffec.t on bar admission numbers, even initially, may not be entirely warranted. The District of
Columbia's adoption of reciprocity produced an initial decline in admissions by examination of almost
60%. 17 In other uniquely attractive states or those bordering states with very large bar memberships
such as Califomia, Florida, New Jersey. Nevada. Arizona and even New hiex:.ico. any hypothesis
remains untested, since they have not }'et adopted reciprocity. It does seem that once reciprocity has
been in place for a number of years bnr admission numbers resist fluctuation and revert back to steady
and predictable figures. This has been the case in the District of Columbia, Indiana. Iowa.
Massachusetts, Michigan, and Minnesota. 18
In developing the classification of reciprocal licensing schemes it was important to note that
admission pro liac vice is not the same as nor 1s it a fonn of reciprocity. The major distinction is that a
reciprocal license grants the licensee full, unencumbered membership into that State bar. Admission
pro hac vice does not grant an attorney a license to practice law in that state. Admission pro hac vice
ortly pennits certain court appearances. usually only applies to litigators, and usually limits the number
of appearances fill attorney will be granted per year. Further pro hac vice rules usually do not provide
the same protections that most reciprocity ntles do such as a minimum number-of-years practicing
11
These are labels which were developed by O.iniel Marquez and Patrick Redmond.
l 2 RULES GOVER~t'\'.Q ADMISSlON TO THE BAR Of' TEXAS RULE .XllI.
IJ D.C Ct. ..\PP. Rl'LF.46(c)[3}.
14 C. R, C. P. 2t}Ul I).
I :i r\K. BAR R.1.
l6 MAfNEBAAADMINJSTR..\TlO:-.i RULES I IA.
t
~ E-muil from Christopher C. Dix, Deputy Director Co mmillce on Admissions for the District of Columbia Bar 1March
7th, 2007. 7;04 .At'\4 MST).
ts Compare Natfonal O.:mference of Bar faamiaers. J989 STATISTICS 9 ( 19.89)
hllllll\\ '""' ,nd1..:... .r1rg!ijlerM1IJlilY'ms:s!i;1[il!t~Atli...-q;ln;1di./B;1r .-\dmi...~i•jn,f! 9S'tili.l\-",~Nff. muJ NatfoMI Cunteren~e cf 8:ir
E,xumincn>. 1996 STATfST!CS 2.J ( 1996J
h up:l/www. m;hc3,<,1t21 ii !c.udminimegiat!l~slgt'w nhtdslf:far ,;\&lrnlss inMf I996sflltS.J2Qf, aud National Cnn ferell\,.'t of Bar
Examiner&. 2005 STATIS1'1CS J;4 {:!005)
http ;l/www. n..:bcx.on~lli ls;admifllmed iu liksldti wn lo adli!Bar Admissi<l1Jl!/2f,MJ5sml§ ,pdf.
2
requirement or the maintenance of an in-state presence requirement. Finally. because reciprocal
licensees are licensed bar members it is easier to assert disciplinary authority over them than unlicensed
attorneys appearing temporarily under pro hac vice rules
The substantive argwnents for and against reciprocity are separated into two categories-those
based on legal issues and those based on professional issues. The n1ost common professional issues
discussed are economic protectionism, cJient autonomy, attorney competence, protection of local court
systems, and attorney discipline. Although rarely admitted by the opponents of refomi. many
commentators, judges, and lawyers identify economic protectionism as the main reason for the
rejection of reciprocity. 19 In fact those states with the largest legal e<:onomies or their neighbors such
as California, Florida. Nevada, Arizona, New Jersey and New Mexico have refused to adopt
reciprocity.
Another argument made to advance reciprocity is that clients are better suited to choose their
legal representatives and should have the freedom to do so.w This may be true for sophisticated and
experienced legal consumers such as large corporations. The reverse argument is that the entire point
of the licensing process is to test attorney competence, ensure client protection. and preve1lt
professional misconduct. .But no evidence or empirical data could be found to impport the argument
that foreign attorneys engage in professional misconduct more frequently or are less competent to
practice law. 21 Additionally, others argue that foreign attomeys have less of a stake in the community.
There is less of an incentive for the foreign attorney ro obtain justice, offer pro bone services,
participate in local continuing legal education, or pursue legal actions or attempt to establish preccdent
which will benefit the community.22 Others have raised concerns ab<:mt :momey djscipliue. It is not
entirely dear how expansive a bar's jurisdictional authority is. Even if disciplinary jurisdiction ex.ists
the resources to discipline out-of-state attorners may not. This concern has been expressed by both the
smallest and largest legal systems in the U.S. 2 And aside from discipline, questions about the civil and
criminal liability of these attorneys also remain unclear.
As for the legal issues raised by reciprocity under the Constitution's anti~protectionist provisions. a
review of case law and commentary compels a curious conclusion. While courts have noted the
burdens intentionally placed on out-of-state competition, for the most part these butdens do not appear
to be constitucionally vulnerable. TI1e practice of law is a constitutionally protected privUege24 • and a
residency requirement for bar admission violates. Article lV's Privileges and Immunities Cfa:us:e.25 The
Supreme Court has suggested, however, that some ruurowlydtaiiored "indicium of commitment"
iv See, e.g., Andrew M. Perlman, A Bar Againsr Competition: The Unco11.stitr11ionality ofAdmission Rules for 0111-ofstme
Lawyers. 18 Geo. J, LOOAL ETHICS 135, 147-48; Gerald J. Clark. The Two Faces of,\<Julri-Jnrisdict1<mal Pra,·tfce, 29 N.
Ky, L REV. 251. 265 £2002); Supreme Court of New Hampshire v, Plix-r. 470 U.S. 274. 285 n.18 (1985), qrmted ir1
. Perfmanat 150: Clim Bolick. The Arizona Bar: Not Exactly a Warm Wdcome, 39 ARlZ NIT'Y 34 ft\pr. 2003).
JJ
Cu.. St!f'REME COURT ADVISORY T,\SK foRCE ON MlJLTJJCRISDICTIONALPRACTICE, fJNAL~PORT AM)
RECOMMENDAr JONS 2 l i 2002). ava iiable m lurp:Nww w..:m1t! i nfi1,i,;a. t?o kJ'rcfcr~!J:i;£/dn.;umcnty'itnnlmirrt-pt .n(,!1) f [;m
visi1cd Mav 8, 2001).
'
•'I See. t!.g.. Carol
A. Neei.lh.acn. ,Huliijurisdirtfrmt1l Pmcri<:c· Regulmimu Gm·emfng Attorneys Cm1duc·ti11g a Tnmsacrimwl
PmctiCI!. 5 U. tu... L. l\BV. 1331 f 2003); Perlman. suprn note 19, nt 171.
11
Piper, .rJO U.S. at 285: See alw A.KA. Center for Professional Responsibifit)'. Client Represe11tatimr in tile 1 lsr
Centruy. 2002 A.B.A. REPORT OF THE COMMISSION ON MULTIJURISDlCT!ONAL PRACTICE !Aug. 12.
:?002), arniiabte df !Jlt11;Jfwww.-0bancr.r•q;i..:pr/mjp1tinal mip !'.Pt ! 2 l702,pgJ.
:i St!e. e.g.• DEL. STATE BAR ASS' N, REPORT OF THE MllLTJJlJ!l:ISDICflOS' AL PRACTICE SPE:tr,\l. COMM. 19 (20<H ): CAL.
24
l$
SlJPRE"1E Coun A ovrso~ y TASK FORCE ON MULT!Jt.:!USDICTIONAI. PRACTICE. supra
Pipt~r. 470 U.S. at 2l«J.R l.
Id. llt 288.
3
nore 20. al
.
19.
requirement may be permissible under the Clause.26 A bar examination requirement serves as such an
"indicium of the nonresident's commitment to the bar and to the State's legal profossion. 'm It i$
questionable, however. whether the "intention to prnedce.. requirements many states impose
demonstrate a compa.11lble "commitment" so much as they resemble invalid residency requirements in
bearing only a supelficial relation to it. Nor do bar examinntion requirements seem likely to run afoul
of Fourteenth Amendment Privileges or Immunities. Despite a recent District Court declaration that
"limited" reciprocity violates the •·right to travd/' 28the prevailing view seems to be that requiring out­
1
of~state attorneys to pass the bar exam cannot constitute prohibited ..differential treatment." ~ For
purposes of Dormant Commerce Clause analysis, restrictions on out-of-state lawyers at least arguably
affect interstate commercial activities. 30 However. courts are unlike) y to doom a bar examination
requirement as unconstitutionally burdensome or discriminatory, since most in-state attorneys have in
fact fulfilled it. 3 ~ As some commentators might say. states can continue to pursue largely protectionist
policies with apparently fun constitutional sanction.
:~Supreme
~'Id.
CmutofVrrginia v, Friedman, 4&7 U.S.59. 68 (1988}.
2~
Morrison v. Board vfLaw Examiners of North Carolina, 360 F. Supp. 2d 7.SL 759 (ED.N.C. :!005}, rev'J,453 FJd 190,
1:+th Cir. 2006), ct'n denied 127 S.CL 1124 (20071 i Nme tnat rhis decision was later reven;ed.)
:<i St't'. r!.g.. Padulan v. Ororge. 2'.!9 F.3d 1:!26. 1229 i9Ht Cir. 2(l(l0t
•Ll Crmnnem. Com11wn.·r Clause Cfrc1ll1mgr IJ'J SUJt<' Resuicrlons mr Pmnice by Our-<if-Swte Attem1eys, 72 NW U. L Rf.V.
1Ji'. 7400978).
1
' Scariano v. Justkcs ufthe Supreme Cnurtoflndian.a. 38 F.3d 920. 927 t7th Cir. 1994).
4