Law School Discussion

Federal Courts-One and done?

Re: Federal Courts-One and done?
« Reply #20 on: July 09, 2015, 11:43:24 AM »
I think anytime someone has challenged admission rules they have prevailed.

If someone is a licensed by a state to practice law they should not be banned from Federal Court.  If Federal Courts only want to hire ABA grads that is a business decision, but preventing them from arguing seems unconstitutional.

I know a non-aba grad petitioned the state of Massachusetts and earned the right to sit for the exam in Mass. http://www.abajournal.com/news/article/grad_of_non-aba-accredited_law_school_can_take_massachusetts_bar/

It would also be a violation of a Privileges and Immunities for one state to deny someone the right to at least sit for the bar exam.  Plenty of states, courts, etc put up rules, but usually when they are challenged they are overturned. Whether a non-aba Grad wants to go through the headache of a lawsuit to sit for a bar exam or practice in Federal Court is their own decision and an obstacle.


Re: Federal Courts-One and done?
« Reply #21 on: July 09, 2015, 12:24:20 PM »
Good luck trying to take a non-CA bar with a CALS JD, or the equivalent. I doubt the case is as strong as you say.

Re: Federal Courts-One and done?
« Reply #22 on: July 09, 2015, 01:47:06 PM »
I think this main case any lawyer seeking admission would rely on. https://www.law.cornell.edu/supremecourt/text/470/274

Re: Federal Courts-One and done?
« Reply #23 on: July 09, 2015, 02:24:39 PM »
Based on a quick reading, the rule at issue in that case explicitly denied the right to out of staters, which is a far cry from restricting the eligible schools. We haven't had any successful cases of people challenging more general bar requirements, so I doubt such a case would go anywhere. Of course, you're welcome to try!

loki13

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Re: Federal Courts-One and done?
« Reply #24 on: July 09, 2015, 02:28:09 PM »
No, that case doesn't really help.

P&I means that if you live in one state, you can still take (and pass, and keep) the bar membership in another. But it has nothing to do with reasonable requirements, unless otherwise prohibited by law.

So, for example, a state can require anyone (in or out of state) to have good moral character and fitness. A somewhat evolving question is the compatibility of that with the ADA (specifically, regarding mental health).

A state can have minimal educational requirements- such as graduation from an ABA law school. Note that in the Massachusetts example you cited, it was the Supreme Court, not granting a general rule, but giving a special waiver to one person- many states, including Florida, have provisions for same (I cited Florida's provisions- 10 years, documents, and prayer).

More simply- the requirements at issue don't have to do with residency.

Re: Federal Courts-One and done?
« Reply #25 on: July 09, 2015, 02:39:22 PM »
The lawyer's role in the national economy is not the only reason that the opportunity to practice law should be considered a "fundamental right." We believe that the legal profession has a noncommercial role and duty that reinforce the view that the practice of law falls within the ambit of the Privileges and Immunities Clause. [n11] Out-of-state lawyers may -- and often do -- represent persons who raise unpopular federal claims. In some cases, representation by nonresident counsel may be the only means available for the vindication of federal rights. See Leis v. Flynt, 439 U.S. at 450 (STEVENS, J., dissenting). The lawyer who champions unpopular causes surely is as important to the "maintenance or wellbeing of the Union," Baldwin, 436 U.S. at 388, as was [p282] the shrimp fisherman in Toomer or the pipeline worker in Hicklin.

Practicing law is a fundamental right it was decided. I could cite more, but the whole reasoning is that often out-of-state lawyers bring up issues that are not popular and denying them access to the courts goes against everything the law stands for.

Again, you would have to go through a tedious legal process to simply sit for the bar exam as a non-aba grad and as in any lawsuit there is a chance you would lose, but in this day and age if you push a licensing agency to litigation they would probably just ask for a fee and that you pass the test.

I haven't gotten quite a few friends out of paying out-of-state tuition using this same logic. How does a school get away with charging 3x more? Most people don't question it, but if you get to the point of filing a lawsuit they will just find a way to make classify them as residents.

The case I posted above about the Concord Law Grad achieving success against the Mass State Bar is proof as to why they shouldn't block it.



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Re: Federal Courts-One and done?
« Reply #26 on: July 09, 2015, 02:44:32 PM »
" but in this day and age if you push a licensing agency to litigation they would probably just ask for a fee and that you pass the test. "

No. You fundamentally misunderstand the PandI (discrimination against out-of-staters) with the issue of reasonable licensing requirements applied across-the-board.

If some state (let's keep picking on Florida) mandates that the educational requirement must be fulfilled by either graduation from an ABA-accredited law school, *or* by 10 years practice + permission, that applies equally to Florida- and non-Florida residents. Nothing impermissible about it.

Where the issue has come up before is the "state privilege" still given in Wisconsin; while there was litigation over this issue, AFAIK, the state privilege remains.

Re: Federal Courts-One and done?
« Reply #27 on: July 09, 2015, 02:58:48 PM »
I think it could be challenged.  Homosexual marriage was illegal last month now it isn't.

There is a legitimate argument for states imposing their own reglulations and making them burdensome, but is in my opinion no reason to specifically ban someone that is licensed in one state from practicing the same profession in another. If a state was hell-bent on making it difficult I think a less restrictive alternative might be an exam for out-of-state members to take a test on specific procedures or possibly require more pro-bono activity in the state or some less restrictive alternative other than just saying you can't do it.

If it ever comes up it would be a great Con-Law case, but if all this stress and uncertainty was required before taking the bar exam it would not be an ideal situation. So again the overall rule is go to an ABA school with a few minor exceptions.

Even the Federal Rule in the Central District about California bar membership could probably be overcome. In fact that is the exact issue discussed in the case. Preventing out-of-state lawyers from bringing unpopular Federal Claims. ( I imagine if someone challenged it they would prevail, but again who is going to spend the time and money to do it?






Re: Federal Courts-One and done?
« Reply #28 on: July 09, 2015, 03:29:16 PM »
I dunno what to tell you, but trying to draw a link there is tenuous at best. Even a casual Google search locates dozens of unsuccessful attempts to challenge bar admission requirements. I'm not sure how the state willingly abridging its own requirements strengthens your case.

In the marriage equality case, there was a split. I see nothing like that here.

Re: Federal Courts-One and done?
« Reply #29 on: July 09, 2015, 04:41:38 PM »
I would be interested to see the citations to those cases where it was not granted and the reasoning behind it.

If someone committed a Felony or crime fine or some other reason, but if someone really wanted to challenge the court and pass a given state's bar exam etc I would bet money on them being given the opportunity to sit for the exam, but I am a guy on the internet.

As for the nexus to Marriage it was a fundamental right and that right has been extended to same couples. Will it extend to Polygamy in the near future? Maybe-Maybe not.

in the case I cited practicing law was determined to be a fundamental right. How far does this right go and want state interest is served from preventing a San Joaquin College Law Grad from taking the South Dakota Bar, which is a state so desperate for lawyers that it is paying for lawyers to move there. http://www.businessinsider.com/south-dakota-lawyer-subsidy-2013-4

It would be a very interesting case and I hope it happens one day in my lifetime unfortunately or fortunately, I am not a CBA grad so I can't be the Plaintiff.