distance learning

[jonlevy]

US Sued Over Calif. Out-Of-State Atty Rules

By Maria Chutchian

Law360, New York (November 14, 2011, 7:07 PM ET) -- The National Association for the Advancement of Multijurisdiction Practice on Thursday launched its second complaint in the past month seeking the elimination of California rules denying out-of-state lawyers general bar admission privileges.

In a complaint filed against the U.S., President Barack Obama, Attorney General Eric Holder, the Ninth Circuit and its justices, the U.S. District Courts for the Northern, Eastern, Central and Southern Districts of California and their judges, the NAAMJP asserts that the U.S. district court "local rules" that deny them equal opportunity to gain bar admission in the state violate several federal laws.

The suit comes on the heels of a similar one filed in October, in which the advocates for multijurisdictional legal practice launched allegations against California's Supreme Court seeking to overturn the state's ban on practicing in state courts by out-of-state attorneys who haven't been admitted to California's bar.

In Thursday's lawsuit, the association claims the rules elevate state law over federal law in violation of the Rules Enabling Act, the supremacy clause of the U.S. Constitution, the First and Sixth Amendments, the equal protection clause, and prior U.S. Supreme Court decisions.

"[The local rules] correspondingly shrink and abridge the substantive rights of [the] plaintiffs and all American citizens to choose their own counsel in a designated United States public forum," the complaint said.

It added that the local rules stigmatize and discriminate against out-of-state attorneys, constituting "a wall of financial protection and [providing] California licensed attorneys with a monopoly."

The association is seeking declaratory judgment invalidating all U.S. district court local rules in the Ninth Circuit that deny them and other licensed attorneys District Court general bar admission privileges and an order admitting the plaintiffs to the California bar.

The NAAMJP pointed to several other national legal associations that support "on motion" bar admission — not requiring another state bar examination — for every state.

The complaint said the American Bar Association has recommended that the policy of restricting practice privileges to lawyers who are admitted to the state bar in which the district is located should be abolished.

It also said the ABA Multijurisdictional Practice Commission concluded that states that do not have reciprocal admission on motion injure the public by limiting access to experienced attorneys.

In addition, the suit pointed to the ABA Commission on Ethics 20/20, which it said came to a recent conclusion that the ABA should adopt amendments to the rule on admission by motion that would allow all lawyers to qualify for admission by motion with three years of experience.

 

A representative for the Ninth Circuit declined to comment.

The NAAMJP and its fellow plaintiffs are represented by Jeffrey Martin Ginsberg.

The case is National Association for the Advancement of Multijurisdiction Practice et al. v. USA et al., case number 4:11-cv-05481, in the U.S. District Court for the Northern District of California.

--Additional reporting by Keith Goldberg. Editing by Kat Laskowski.

[FalconJimmy]

You mean somebody thinks California should LOWER their standards for attorneys even further?  I mean, if they lower it much further, the only remaining requirement will probably be for something like clean underwear.

[Opie58]

You mean somebody thinks California should LOWER their standards for attorneys even further?  I mean, if they lower it much further, the only remaining requirement will probably be for something like clean underwear.

Lower standards???  Please, explain again how California has done that.  California was ranked as 2nd toughest overall based on 2006 data; 2nd to DC - http://sbasu.com/professional/law/barExamRankings/BarRank_Cumulative.htm. So, please provide some supporting data to your obviously biased opinion based on pure emotion instead of fact.  If your opinion is that the bar fails for weed out those not up to the standards of lawyering, then I would say the ABA standard fails to do just the same since corrupt attorney make it through and disgrace the profession; sounds like some other professions as well – I guess they (the corrupt) are everywhere.

@jonlevy:  I'll have to watch that suit; should be interesting.  Washington State appears to do the same; the Western Washington District Court mentions in their rules about being with the Washington Bar to gain admittance - sounded odd for a federal court, but I'm not in a position to challenge yet.  This could have some positive impact for those of us seeking the DL approach to law school and licensing outside of California.  Keep us informed. Thanks.

Here is the link to the petition mentioned by jonlevy for those who wish to read it - http://www.mjplaw.org/pending_litigation.html.

[jonlevy]

It has nothing to do with standards, if an attorney passes any bar and then practices for three years without any trouble, they should be free to motion into any state without a bar exam provided there are no other issues.  The problem however is that the vast majority of state bars will never recognize a non ABA graduate no matter how many years practice they have. The exception is DC which permits all attorneys with 5 years experience and a clean record to motion into the bar.  I have long advocated that California should have complete reciprocity with DC, that is any lawyer with 5 years practice in DC should be permitted to join the California bar without an exam.  I am however opposed to letting in attorneys without a bar exam from states who would keep out non ABA California lawyers. Unfortunately, the California Bar is moribound and cannot even get bar dues bills signed timely by the Governor some years.

The situation has gotten so bad after the lawsuits filed that California Federal Court Judges in the Central and Northern Districts have tried to sanction me because I have an out of state address even though I am a member of their bars.

[FalconJimmy]

Lower standards???  Please, explain again how California has done that.

First, it was a joke. Second, it just strikes me as odd that anybody would be looking for a way to bring more attorneys in to California.  Third, the fact that so many of the law schools in CA meet a lesser standard for accreditation is a pretty good indicator of how California has "done that".  You can argue that the california bar accredited schools are just as capable of producing quality attorneys and that's a topic that's simply too broad for the purpose of this discussion.  I have no doubt that some very fine attorneys have come from California non-ABA schools.   

My suspicion is that the top students at the california-only schools are probably comparable to the top students at ABA schools.  However, I highly doubt that their average student is anywhere near the caliber of an average student at an ABA school, and I suspect that their worst students are nowhere near the minimal level of the bottom students at an ABA school.

This is borne out by:

California was ranked as 2nd toughest overall based on 2006 data; 2nd to DC

I am half tempted to ask you to explain why what you just said is a gross misinterpretation of the data, but something tells me that may take a while. 

There are two possible explanations for a high bar flunk rate in CA.  One is that the test is tougher.  However, given that the ABA schools' passage rate is pretty much in line with the passage rate for ABA schools in other states, I don't see how that is likely to be true.

The other explanation is that the people taking the test are either dumber or got a crappier education. 


Given that there are so many law schools in California that can't meet ABA accreditation standards, the only thing shocking about a high bar flunk rate is that DC actually manages to have more people flunk the bar.  When you break down the bar passage statistics, it's the people who attended non-ABA schools that throw California's bar passage rate so far out of whack.  Their ABA schools' passage rate is basically in line with the rest of the country.

[FalconJimmy]

I am however opposed to letting in attorneys without a bar exam from states who would keep out non ABA California lawyers.

Seems reasonable enough.  If another state doesn't give full respect and benefits to a member of the California bar, then California should not feel compelled to do the same.

The situation has gotten so bad after the lawsuits filed that California Federal Court Judges in the Central and Northern Districts have tried to sanction me because I have an out of state address even though I am a member of their bars.

Haahahaha!  Wow, that's ridiculous.

Doesn't Texas also allow admission to the bar without an ABA law degree if you've practiced in another state?


Really, now that you mention it, it seems like there should really be one national standard.  Unfortunately, though, if they did that, it's likely that they'd require ABA accredited education.  Frankly, if you ask me, anybody who passes the bar exam should be allowed to be an attorney. 

[Opie58]

@jonlevy:  I would concur that if a lawyer passes one bar, they should have the ability to apply on motion for licensure to practice in any other state.  However, there lies the dilemma; each state has its own set of standards.   I believe that is what the National Conference of Bar Examiners (NCBE) (http://www.ncbex.org/) is attempting to address.  But, again, some states have chosen to implement alternatives away from ABA to granting licensure, which I support.  California is not the only one that has alternative programs, Washington State does as well with their Rule 6 – Law Clerk Program (http://www.wsba.org/Licensing-and-Lawyer-Conduct/Admissions/Limited-Licenses-and-Special-Programs/Non-Lawyers-and-Students/Law-Clerk-Program), and I’m sure there are other states as well.  Also, I have given at least one example that I personally know of where an attorney graduated from Taft Law, passed the California Bar, granted a waiver and passed the Idaho Bar, and been practicing there (Idaho) for over 10 years.  As for the California Bar being moribound and getting due bills signed (?) by the Governor, from what hear up north it’s more a reflection on the California government and their lack in governance as opposed to the State Bar.

@FalconJimmy:  I would concede that a lower caliber of student would gravitate towards non-ABA schools that offer alternative methods of education and those upon graduation who take the bar exam will have a lower passage rate.  Therefore, I say the bar exam is doing exactly what it should be doing – weeding out those who fail to cut the mustard.  While those who fail the bar may appear to have wasted their time, I counter that anyone who has taken to learn the law, in whatever capacity, has improved themselves, and society, overall for a law degree offers more than the ability to practice law.  So, I concur with your final sentence.

  Frankly, if you ask me, anybody who passes the bar exam should be allowed to be an attorney.

[jonlevy]

The problem was not with the law degree but that the federal bars in California are being sued for refusing to admit out of state attorneys who are not members of the California Bar. I am a member of the Cal Bar but live out of state, and am a member of some of the local federal bars. The Judges however saw my out of state address on the pleadings and tried to retaliate even though my Cal Bar number was on the pleadings and I am in their databases as a fed bar member.

Each US District Court in the US sets it own admission requirements, has nothing to do with the ABA but everything to do with state bar membership. Only a few let everyone become members without restrictions - notably USDC North Dakota and Northern District of Illinois (Chicago),  most of the rest have limited or no reciprocity. The NAAMP pleading was misleading on that issue - shows a lot of green states that have reciprocity when that really is not the case. For exampme New York federal courts keep out everyone except NY, Conneticut and Vermont bar members, the NAAMP map makes it look like there is total reciprocity.

The US Courts of Appeal and Article One courts on the other hand usually admit everyone subject to varying hoops to jump through as does the US Supreme Court.

[FalconJimmy]

Each US District Court in the US sets it own admission requirements, has nothing to do with the ABA but everything to do with state bar membership. Only a few let everyone become members without restrictions - notably USDC North Dakota and Northern District of Illinois (Chicago),  most of the rest have limited or no reciprocity. The NAAMP pleading was misleading on that issue - shows a lot of green states that have reciprocity when that really is not the case. For exampme New York federal courts keep out everyone except NY, Conneticut and Vermont bar members, the NAAMP map makes it look like there is total reciprocity.

Ah, okay.  I'm just slow on the uptake, here.

That's actually more than a little shocking.  You'd think there'd be one set of admission requirements for all federal courts.  Wow, so the issue here is that the district courts in CA are roughing up out of state applicants to a higher degree than district courts in other states.  That is wierd.  Thanks for clarifying the lawsuit for me.

[FalconJimmy]

Therefore, I say the bar exam is doing exactly what it should be doing – weeding out those who fail to cut the mustard.  While those who fail the bar may appear to have wasted their time, I counter that anyone who has taken to learn the law, in whatever capacity, has improved themselves, and society, overall for a law degree offers more than the ability to practice law. 

I agree with this.  Plus, when push comes to shove, I'm all for giving folks a chance to do something, even if it's a longshot.  It's a free country and people should know the risks, but there are some (maybe many) people who, if given a 1 in 10 shot at being an attorney, WANT to have that 1 in 10 shot.  They don't want some bureaucratic process to turn it into a 0 in 10 shot.