Admission to the bar in the United States

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In the United States, admission to the bar is permission granted by a particular court system to a lawyer to practice law in that system. Each U.S. state and similar jurisdiction (e.g. Territory) can and does set its own rules for bar admission, as a matter of court sovereignty. In practice, this leads to exceptions to nearly every general rule of bar admission.

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[edit] General requirements for admission

Each state has its own rules which are the ultimate authority concerning admission to its bar. Generally, admission to a bar requires that the candidate do the following:

  • Earn a Juris Doctorate from a law school approved by that state (often, but not always, this means accredited by the American Bar Association); or, where permitted, participate in an approved Law Clerk program ("reading the law").
  • In all United States jurisdictions except Maryland, Puerto Rico, Wisconsin, and Washington, all candidates must pass the Multistate Professional Responsibility Examination (MPRE), an examination covering the professional responsibility rules governing lawyers. This test is not administered at the same time as any U.S. bar exam. Most candidates take the MPRE while still in law school; indeed, some states require that a candidate pass the MPRE before being allowed to sit for the bar exam. Connecticut and New Jersey waive the MPRE for candidates who have received a grade of C or better in a law school professional ethics class.
  • Pass a state-administered bar examination. Usually this consists of several parts administered over two or three days, typically including:
  • Be certified (usually by the state bar association) as having the good moral character and fitness to practice law.
  • Apply to that state's authority responsible for licensing lawyers and pay required fees. Upon approval by that authority, the admittee takes an oath to comply with the rules governing the practice of law in that state, and receives a certificate of admission.
  • Some jurisdictions have additional educational requirements; however, Continuing Legal Education (CLE) is generally a matter of license renewal, not admission.

[edit] Exceptions

[edit] Pro se litigants

In Adams v. United States ex rel. McCann (317 US 269) the United States Supreme Court upheld the individual's right to represent him or herself without being admitted to a bar (pro se).[1]

[edit] Waiver

Minnesota, North Dakota and the District of Columbia allow attorneys who recently passed the bar exam of another state, and who were subsequently admitted to the bar of that state while scoring a certain minimum score on the Multistate Bar Examination (MBE), to "waive" into admission rather than sitting for that jurisdiction's exam (though they still must attend to other formalities in order to practice in the jurisdiction). Attorneys who passed the bars of Louisiana, Washington, and Puerto Rico cannot "waive in" using this method, since these are the three jurisdictions in the United States that do not use the Multistate Bar Examination.

[edit] Diploma privilege

Once used by as many as 32 U.S. states and the District of Columbia, Wisconsin is currently the only state that offers the diploma privilege for admission to its state bar. New Hampshire will reinstitute the diploma privilege for a limited number of students in 2008 (see below). Most recently, West Virginia did away with the rule in 1988, Montana in 1983 and Mississippi in 1981.

In Wisconsin, graduates of the two ABA-accredited law schools in the state—currently, the Marquette University Law School and the University of Wisconsin Law School—may obtain admission to the bar of Wisconsin through the diploma privilege without taking any examination. To qualify for the diploma privilege, the graduate must have met certain criteria with regard to the courses taken in law school and the graduate's performance in those courses. Marquette, unlike UW, does not enforce the 30/60 rules regarding certain courses. Law graduates seeking the diploma privilege must still meet the state bar's character and fitness requirements.

Graduates of out-of-state law schools, even if they are Wisconsin residents, must still take the Wisconsin bar exam to be admitted in Wisconsin. In April 2007, Christopher L. Wiesmueller, a Wisconsin native attending law school (May 2007 graduate) at Oklahoma City University School of Law filed a complaint in the United States District Court for the Western District of Wisconsin, challenging the constitutionality of the diploma privilege. Wiesmueller is pursuing the case pro se against 19 named defendants, including all seven Wisconsin Supreme Court justices. The case has been assigned to Judge John C. Shabaz, a graduate of Marquette University Law School (1957) and a beneficiary of the state’s diploma privilege.

Graduates of Wisconsin law schools must take the bar exam for other states in which they are going to practice (unless a candidate meets the state's waiver requirements).

In 2005, New Hampshire launched the Daniel Webster Scholar Honors Program, an alternative bar certification program, at the state's only law school, Franklin Pierce Law Center. Students apply to the program during the spring of their 1L (first) year, and only 25 are accepted annually. Webster Scholars go through an intensive, practice-based program under the supervision of New Hampshire judges, attorneys, and bar examiners. Students who graduate from the program are exempt from taking the New Hampshire bar examination, although they must still pass the Multistate Professional Responsibility Examination and also meet character and fitness requirements. The first class of Webster Scholars will graduate in 2008.

A number of U.S. states do not grant reciprocal admission for attorneys who obtained their bar admission through the diploma privilege, requiring those attorneys to take that state's bar exam, regardless of the length of that attorney's practice.

[edit] Reciprocity (admission by motion without examination, admission by comity)

Main article: Reciprocal agreement

Many states allow for reciprocal admission to the bar of that state if an individual is licensed to practice in another state and has actively practiced law for a number of years. Depending on the state, there may be limitations on reciprocity, such as requiring a minimum score on the Multistate Professional Responsibility Examination (MPRE), or even that the applicant have taken a bar examination in the previous jurisdiction. For example, Rule XIII of the Texas Board of Law Examiners allows attorneys practicing full-time 5 of the last 7 years in another state and who meet minimum scores on the MPRE to be admitted to the Texas bar without having to sit for the Texas Bar Examination.

Most states that allow reciprocal admission define "full-time practice" to include not only attorneys working in law firms or solo practice, but also law teachers in accredited U.S. law schools; military JAG attorneys; federal and state government attorneys; judges, magistrates, administrative law judges, and similar officials; and in-house corporate counsel. Some states, however, have their own quirks--for example, in West Virginia, in-house counsel are not considered as being engaged in the practice of law for the purposes of admission without examination.[2] This means that a lawyer who has worked exclusively as in-house counsel is ineligible for reciprocal admission in West Virginia, and a West Virginia in-house counsel is ineligible for reciprocal admission in those jurisdictions that tie eligibility to the requirements of the lawyer's original jurisdiction.

[edit] Limited license to practice law

A number of jurisdictions will issue, without examination, a limited license to practice law to attorneys already admitted in another jurisdiction under specified conditions. The most common limited licenses are:

  • Legal services attorneys: Attorneys who practice exclusively in legal aid centers that service mainly low-income clients, or in public defender offices serving indigent criminal defendants. Depending on the jurisdiction, attorneys who work in one or both of the named entities may be eligible for such a license.
  • In-house counsel: Attorneys who are employed by a corporation or other business entity that is not in the business of practicing law, and who perform legal services solely for their employer.
  • Foreign legal consultant: A person with formal legal training from a country other than the United States, who is permitted to engage in activities that would otherwise constitute the practice of law on the basis of that training. Common designation for attorneys who are "seconded" to American law firms to learn American law and to cement cross-firm ties.
  • Legal professional: A small number of states license paralegals and others who routinely prepare legal documentation.[citation needed]

[edit] Law schools not accredited by the ABA

Alabama, California, Connecticut,Massachusetts, and Tennessee, allow individuals to take the bar exam upon graduation from law schools approved by state bodies but not accredited by the American Bar Association.

[edit] Admission without law school

In California, Vermont, Virginia, and Washington[3], an applicant who has not attended law school may take the bar exam after study under a judge or practicing attorney for an extended period of time. This method is known as "reading law" or "reading the law".

New York requires that applicants who are reading the law must have at least one year of law school study. (See Rule 540.4 of the Rules of the Court of Appeals for the Admission of Attorneys.)

Maine allows students with two years of law school to serve an apprenticeship in lieu of completing their third year.

[edit] Military lawyers

Lawyers who are full-time active duty military officers may practice in some states, if they are stationed there and fulfill administrative requirements. For example, see Admission to Practice Rule 8g of the Washington Court Rules

[edit] Admission pro hac vice

An attorney who is not licensed in a particular state and before a certain court, but who wishes to represent a client in a particular matter in that state, may petition the court to provide direct representation pro hac vice (Latin: "for this one case"). A number of jurisdictions require that the attorney partner with local counsel for purposes of service of process, attendance at court and assumption of responsibility. Lawyers who practice under pro hac vice rules are usually also bound by that state's Rule of Professional Conduct and discipline.

[edit] Admission of foreign-educated lawyers

Many states allow some foreign-educated lawyers to take the bar examination. For example:

  • New York allows individuals with at least three years of formal education in the common law (such as English or Australian law) to take the bar exam. Individuals with two years of common law training or three years of civil law training may take the bar exam after completing a one-year Master of Laws (LL.M.) program at an American institution.
  • Washington allows individuals admitted "to the practice of law by examination, together with current good standing, in ... any jurisdiction where the common law of England is the basis of its jurisprudence, and active legal experience for at least 3 of the 5 years immediately preceding the filing of the application." See Admission to Practice Rule 3 of the Washington Court Rules

[edit] State bar associations (distinguished)

Admission to a state's bar is not necessarily the same as membership in that state's bar association. There are two kinds of state bar associations:

[edit] Additional requirements in certain courts and offices

[edit] State appellate courts

In many states of the U.S., admission to the bar of a state does not entitle the admitted attorney to appear and plead before the appellate courts of the state. However, admission to the bar of the appellate court is usually a fairly simple matter of paying a nominal application fee and taking an oath of admission.

[edit] Federal courts

[edit] Federal district and appellate courts

Admission to a state bar does not entitle the admitted attorney to appear and plead before the United States district courts or any United States court of appeals. As with State appellate courts, admission to the bar of a federal district or appellate court is granted upon payment of a fee and taking an oath of admission. These requirements are often different (such as not requiring a fee) for attorneys who appear before federal courts on behalf of the United States government, such as Assistant United States Attorneys.

An attorney must apply to each district separately. For instance, a Texas attorney who practices in federal courts throughout the state would have to get admitted separately to the Northern District of Texas, the Eastern District, the Southern District, and the Western District. To handle a federal appeal the attorney would also be required to be admitted separately to the Fifth Circuit Court of Appeals. As the United States Bankruptcy Courts are divisions of the District Courts, admission to a particular US District Court includes admission to the corresponding Bankruptcy Court. The Bankruptcy Courts require attorneys attend training on electronic filing before they may file motions however.

Some federal district courts have extra admission requirements. For instance, the Southern District of Texas requires attorneys seeking admission to attend a class on practice and procedures in that District, while the Southern District of Florida administers an entrance exam. The United States District Court for the District of Rhode Island requires candidates to both attend classes and pass an examination. Many federal district courts require attorneys to be members of the state bar where the court sits.

[edit] United States Supreme Court

An attorney wishing to practice before the United States Supreme Court must apply to do so. The attorney must have been admitted to a state bar for at least three years, and the application must be sponsored by two attorneys already admitted to the Supreme Court bar. A fee and a written oath are also required. [1]

[edit] United States Tax Court

Various other specialized courts, e.g., the United States Tax Court, have separate admission requirements. The United States Tax Court is unusual in that a non-attorney may be admitted to practice. However, the non-attorney must take and pass an examination administered by the Court to be admitted, while attorneys are not required to take the exam. Most members of the Tax Court bar are attorneys.

[edit] Patent practice

Persons wishing to "prosecute" patents before the United States Patent and Trademark Office (USPTO)—i.e., represent clients in the process of obtaining a patent—must first pass the USPTO registration examination, frequently referred to as the "patent bar."

A Juris Doctor degree is not required to sit for the patent bar. Lawyers who pass the patent bar exam may refer to themselves as Patent attorney; non-lawyers are referred to as "Patent agent". Patent agents may not hold themselves out as licensed attorneys.

The USPTO requires that, to sit for the patent bar, each individual must have earned a bachelor's or master's degree in a "hard science" or engineering, or accrued a certain number of credits in undergraduate science courses; the number of credits depends on the specific discipline. A computer science degree is acceptable, so long as it is received from an ABET accredited program. Although the admission requirements do allow substitution of technical experience for technical education, in practice that is rarely done.

Most patent lawyers have a relevant four-year degree and many have graduate technical degrees. Legal ethics rules prohibit lawyers from using the title "patent attorney" unless they are admitted to practice before the USPTO.

Passing the patent bar is not necessary to advise clients on patent infringement, to litigate patent issues in court or to prosecute trademarks. However, only registered patent attorneys or patent agents can prosecute patents in the USPTO.

[edit] Military law

To serve as a member of the Judge Advocate General's Corps requires a license to practice law in any state or territory of the United States, as well as training at one of the 3 military services specialized law schools. In a general court martial the accused is also entitled to retain counsel at his own expense, and retained counsel need not be a JAG Corps member.

[edit] Terminology

The use of the term bar to mean "the whole body of lawyers, the legal profession" comes ultimately from English custom. In the early 16th century, a railing divided the hall in the Inns of Court, with students occupying the body of the hall and readers or Benchers on the other side. Students who officially became lawyers crossed the symbolic physical barrier and were "admitted to the bar".[4] Later, this was popularly assumed to mean the wooden railing marking off the area around the judge's seat in a courtroom, where prisoners stood for arraignment and where a barrister stood to plead. In modern courtrooms, a railing may still be in place to enclose the space which is occupied by legal counsel as well as the criminal defendants and civil litigants who have business pending before the court.

Courts in the U.S. make no distinction between barristers and solicitors; all lawyers are "admitted to the bar".

When attorneys say "I was admitted in year 19XX" they are referring to the year in which they were first sworn into the bar of any jurisdiction.

[edit] The Apprenticeship issue

The American legal system is unusual in that, with few exceptions, it has no formal apprenticeship or clinical training requirements between the period of academic legal training and the bar exam, or even after the bar exam. Two exceptions are Delaware and Vermont, which require that candidates for admission serve a full-time clerkship of at least five months (Delaware) or three months (Vermont) in the office of a lawyer previously admitted in that state before being eligible to take the oath of admission.

On October 12, 2005, the Washington State Supreme Court adopted amendments to Admission to Practice Rule 5 and 18, mandating that, prior to admission, Bar applicants must complete a minimum of four hours of approved pre-admission education.[5][6]

Some law schools have tried to rectify this lack of experience by requiring supervised "Public Service Requirements" of all graduates[7]. States that encourage law students to undergo clinical training or perform public service in the form of pro bono representation may allow students to appear and practice in limited court settings under the supervision of an admitted attorney. For example, in New York's Third Appellate Department, "Any officer or agency of the state ... or any legal aid organization ... may make application to the presiding justice of this court for an order authorizing the employment or utilization of law students who have completed at least two semesters of law school and eligible law school graduates as law interns to render and perform legal services ... which the officer, agency or organization making the application is authorized to perform."[8] Similarly, New York's state Department of Labor allows law students to practice in unemployment benefits hearings before the agency.[9]

As a result, in most jurisdictions anyone with a J.D. (or equivalent experience in the states that allow it) may take the bar exam and be admitted to the bar, and then may immediately seek out clients and start filing papers with a court. The current system has been heavily criticized[citation needed] on the grounds that clients often end up subsidizing the apprenticeship of young lawyers.

[edit] Incidents of admission

A successful applicant is permitted to practice law after being sworn in as an officer of the Court. Upon admission, a new lawyer is issued a certificate of admission from the state's highest court and a membership card attesting to admission. In most states, lawyers are also issued a unique bar identification number. In certain jurisdictions, the state bar number must appear on all documents submitted by a lawyer.[10]

[edit] References

  1. ^ Adams v. United States. United States Supreme Court (21 December 1942). Retrieved on March 07, 2008.
  2. ^ Rule 4.0. Admission without examination.. Rules for Admission to the Practice of Law in West Virginia. Supreme Court of Appeals of West Virginia. Retrieved on 2007-05-24.
  3. ^ Rule 6 Law Clerk Program. Washington State Bar Association (2002). Retrieved on March 04, 2007.
  4. ^ Etymology: Bar. EtymologyOnline.com. Retrieved on December 11, 2006.
  5. ^ Admission to Practice Rule 5. Washington State Supreme Court. Retrieved on March 07, 2008.
  6. ^ Admission to Practice Rule 18. Washington State Supreme Court. Retrieved on March 07, 2008.
  7. ^ University of Louisville Brandeis School of Law Public Service Requirement. State of New York Courts. Retrieved on March 07, 2008.
  8. ^ Part 805: Admission of Attorneys. State of New York Courts. Retrieved on March 07, 2008.
  9. ^ Need Help With Unemployment Benefits?. State of New York Department of Labor. Retrieved on March 07, 2008.
  10. ^ See, e.g., California Rules of Court, Rule 2.111.

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