In the United States, admission to the bar is the granting of permission by a particular court system to a lawyer to practice law in that system. Each U.S. state and similar jurisdiction (e.g. territories under federal control) has its own court system and sets its own rules for bar admission (or privilege to practice law), which can lead to different admission standards among states. In most cases, a person who is "admitted" to the bar is thereby a "member" of the particular bar.
In the canonical case, lawyers seeking admission must earn a Juris Doctor degree from a law school approved by the jurisdiction, and then pass a bar exam administered by it. Typically, there is also a character and fitness evaluation, which includes a background check. However there are exceptions to each of these requirements.
A lawyer who is admitted in one state is not automatically allowed to practice in any other. Some states have reciprocal agreements that allow attorneys from other states to practice without sitting for another full bar exam; such agreements differ significantly among the states.
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".[1] 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.
The first bar exam in what is now the United States was instituted by Delaware Colony in 1763, as an oral examination before a judge.[2] The other American colonies soon followed suit.[2] By the late 19th century, the examinations were administered by committees of attorneys, and eventually changed from a oral examination to a written one.[2]
Today, 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:
Alabama, California, Connecticut, Massachusetts, West Virginia 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.
On the other hand, in certain states, e.g., Arizona, one may not be allowed to actually take the bar exam unless one's law school is ABA accredited, and this requirement has withstood constitutional attack. Thus, a graduate of a law school without ABA accreditation may not sit for the Arizona bar, although they may take the bar in other states.
In California certain law schools are registered with the Committee of Bar Examiners[4] of The State Bar of California. Such schools are authorized to grant the Juris Doctor (J.D.) law degree. Students at these schools must take and pass the First-Year Law Students' Examination (commonly referred to as the "Baby Bar") administered by the CBE.[5] Upon successful passing of the "Baby Bar" those students may continue with their law studies to obtain their J.D. degree.[6]
In California, Vermont, Virginia, and Washington, 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.[7][8] This method is known as "reading law" or "reading the law".
New York requires that applicants who are reading the law have at least one year of law school study (Rule 520.4 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.
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).[9]
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. They must also satisfy other formalities before they may 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.
Once used by as many as 32 U.S. states and the District of Columbia, Wisconsin is currently the only state that offers a broad diploma privilege for admission to its state bar. New Hampshire began offering diploma privilege to a limited number of law graduates in 2008. 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. 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. 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. Law graduates seeking the diploma privilege must still meet the state bar's character and fitness requirements.
In 2005, New Hampshire launched the Daniel Webster Scholar Honors Program, an alternative bar certification program, at the state's only law school, the University of New Hampshire School of Law (then known as Franklin Pierce Law Center). 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. Students apply to the program during the spring of their 1L (first) year, and only 25 are accepted annually. Webster Scholars go through a self-described intensive, practice-based program under the supervision of New Hampshire judges, attorneys, and bar examiners. The first class of Webster Scholars graduated 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.
Many states allow for reciprocal admission to the bar of that state if an individual is licensed to practice in another state which also permits reciprocal admission. Additionally, most states require that the reciprocal admittee has actively practiced law for a number of years (often three of the last five years, or five of the last seven years). For example, New York permits admission on motion to applicants who have practiced five of the last seven years in one of 34 jurisdictions that allow reciprocal admission to applicants from New York.[10] 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, the definition of "practice of law" in West Virginia does not explicitly include in-house counsel within its scope.[11] [12] Assuming that in-house counsel are not included, 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 c ounsel is ineligible for reciprocal admission in those jurisdictions that tie eligibility to the requirements of the lawyer's original jurisdiction.
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:
An attorney who is not licensed in a particular state or before a certain court, but who wishes to represent a client in a particular matter in that court, may petition the court to provide direct representation pro hac vice (Latin: "for this one case") for that particular matter. 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.
Some federal courts do not admit pro hac vice. For example, the United States District Court for the Eastern District of Michigan specifically states in its local rules, "Pro hac vice admission is not permitted." However, it offers full admission to all attorneys who are licensed and in good standing in any U.S. jurisdiction.[11] [13]
Lawyers who are full-time active duty military Judge Advocate officers may represent the government (and certain individual service members) in all states even if they are not members of the particular state bar where they are stationed or working.
Many states allow some foreign-educated lawyers to take the bar examination. For example:
Such procedures, where allowed, differ from state to state.
Most attorneys seek and obtain admission only to the bar of one state, and then rely upon pro hac vice admissions for the occasional out-of-state matter. However, many new attorneys do seek admission in multiple states, either by taking multiple bar exams or applying for reciprocity. This is common whenever a metro area sprawls into multiple states, like Washington, D.C. and New York City. Attorneys based in predominantly rural states or rural areas near state borders frequently seek admission in multiple states in order to enlarge their client base.
Note that in states that allow reciprocity, admission on motion may have conditions that do not apply to those admitted by examination. For example, attorneys admitted on motion in Virginia are required to show evidence of the intent to practice full-time in Virginia and are prohibited from maintaining an office in any other jurisdiction. Also, their licenses automatically expire when they no longer maintain an office in Virginia.[14][15]
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:
Thirty-two states and the District of Columbia require membership in the state's bar association to practice law there.[16] This practice is called a having a Mandatory, Unified or Integrated Bar.
In Texas, for example, the "State Bar of Texas" is an agency of the judiciary and is under the administrative control of the Texas Supreme Court.[17] The State Bar of Texas is composed of those persons licensed to practice law in Texas, and each such person is required by law to join the State Bar by registering with the clerk of the Texas Supreme Court.[18] See also State Bar of California.
A voluntary bar association is a private organization of lawyers. Each may have social, educational, and lobbying functions, but does not regulate the practice of law or admit lawyers to practice or discipline lawyers. An example of this is the New York State Bar Association.
There is a statewide voluntary bar association in each of the eighteen states that have no mandatory or integrated bar association. There are also many voluntary bar associations organized by city, county, or by other community, such as the Hispanic National Bar Association. The American Bar Association is the voluntary bar association with the largest membership. After the American Bar Association denied membership to African-American lawyers, the National Bar Association was formed in 1925, and the two racially segregated groups continued for decades. Now both groups are open to attorneys without regard to race.
Admission to a state bar does not automatically entitle practice in federal courts, such as the United States district courts or United States court of appeals. In general, an attorney is admitted to the bar of these courts upon payment of a fee and taking an oath of admission. Attorneys who appear before federal courts on behalf of the United States federal government, such as Assistant United States Attorneys, may encounter looser requirements, such as a waiver of the fee.
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 for general appeals and to the Federal Circuit for appeals that fall within that court's jurisdiction. As the United States Bankruptcy Courts are divisions of the District Courts, admission to a particular U.S. District Court usually includes automatic admission to the corresponding Bankruptcy Court. However, the Bankruptcy Courts require attorneys attend training on electronic filing before they may file motions.
Some federal district courts have extra admission requirements. For instance:
Many federal district courts require attorneys to be members of the state bar where the court sits. This is not necessarily consistent within a state; for example, in Ohio, the Southern District generally requires membership in the Ohio state bar for full admission,[19] while full admission to the Northern District is open to all attorneys in good standing with any U.S. jurisdiction.[20][21][22]
An attorney wishing to practice before the Supreme Court of the United States must apply to do so, be admitted to the bar of the highest court of a state, be sponsored by two attorneys already admitted to the Supreme Court bar, pay a fee and take either a spoken or written oath.[23]
While the federal district courts are of general jurisdiction, there are a number of federal courts with subject-matter jurisdiction. The Court of Appeals for the Federal Circuit and the Foreign Intelligence Surveillance Court of Review are Article III courts that hear cases from lower courts but do not have general jurisdiction. The Court of International Trade and the Foreign Intelligence Surveillance Court are lower Article III courts that also do not have general jurisdiction. The Court of Federal Claims, Tax Court, Court of Appeals for Veterans Claims, Alien Terrorist Removal Court, Court of Appeals for the Armed Forces, and the four military courts of criminal appeals for each military branch (Air Force, Army, Navy-Marine Corps, and Coast Guard), are all Article I courts with limited jurisdiction.
Admission to the Federal Circuit is open to any attorney in good standing with the U.S. Supreme Court, any of the other federal courts of appeal, any federal district court, the highest court of any state, the Court of International Trade, the Court of Federal Claims, the Court of Appeals for Veterans Claims, or the District of Columbia Court of Appeals. An oath and fee are required.[24]
Various specialized courts, including the Tax Court, have separate admission requirements. The 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.
Persons wishing to "prosecute" patents (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." Detailed information about applying for the registration examination is available in the USPTO's General Requirements Bulletin.[25] Although only registered patent attorneys or patent agents can prosecute patents in 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.
A J.D. degree is not required to sit for the patent bar. Lawyers who pass the patent bar exam may refer to themselves as a patent attorney (rules of legal ethics prohibit lawyers from using the title "patent attorney" unless they are admitted to practice before the USPTO). While patent lawyers have a relevant four-year degree and many have graduate technical degrees, patent litigation attorneys do not have to be patent attorneys, although some are.
Non-lawyers who pass the patent bar are referred to as "patent agents." Patent agents may not hold themselves out as licensed attorneys. Applicants must have U.S. citizenship, permanent residency (a Green Card), or a valid work visa for a patent-related job. An applicant on a work visa, upon passing the exam, is only given "limited recognition" to perform work for the employer listed on the work visa. Only U.S. citizens can maintain their registration in the patent bar while they are working outside the United States.
The USPTO requires that applicants to the patent bar have earned a bachelor's degree. Applicants are categorized as having earned an accredited "bachelor's degree in a recognized technical subject" (category A), having earned a "bachelor's degree in another subject" with sufficient credits to qualify for the exam (category B), or having "practical engineering or scientific experience" (category C).
Applicants in "category A" must have an engineering or "hard science" degree in a field listed in the General Requirements Bulletin. Note that the degree field as shown on the diploma must be exactly as it appears on the list; for example, "aerospace engineering" does not qualify under category A, while "aeronautical engineering" does. A computer science degree is accepted under "category A" as long as it is received from an Accreditation Board for Engineering and Technology (ABET)-accredited or CSAB-accredited program.
Applicants in "category B" must have earned a bachelor's degree, and must have sufficient credits in science and engineering courses to meet the USPTO's requirements; the number of credits depends on the specific discipline. The coursework must include a minimum of eight credit-hours of acceptable classes in either chemistry or physics. Each course being relied upon by the applicant for credit is evaluated by the USPTO's Office of Enrollment and Discipline for suitability; see the General Requirements Bulletin for the horrific details. Engineering and Computer Science majors whose degree programs do not meet "category A" requirements (typically due to the named field of the degree or, especially in computer science, lack of program accreditation) can apply under "category B."
Applicants in "category C" may present evidence of passing the Fundamentals of Engineering exam as proof of technical education. They must also have a bachelor's degree. Although the admission requirements allow applicants to substitute proof of technical experience for technical education, this is rarely done in practice.
Service as a member of a military service's Judge Advocate General's Corps requires graduation from an American Bar Association-approved law school, a license to practice law in any state or territory of the United States, and training at the specialized law school of one of the three military services (The Judge Advocate General's Legal Center and School for the Army, the Naval Justice School for the Navy, Marine Corps, and Coast Guard, and the Air Force Judge Advocate General School for the Air Force).
In a court-martial, the accused is also entitled to retain counsel at their own expense. (They are provided JAG Corps defense counsel at no expense to them). Such civilian retained counsel need not be a JAG Corps members. Civilian counsel must either be a member of both a federal bar and a state bar; or otherwise authorized to practice law by a recognized licensing authority and approved by the military judge as having sufficient familiarity with criminal law as applicable in court martial.[26]
Criminal appeals for each branch of the military are heard by the Air Force Court of Criminal Appeals, Army Court of Criminal Appeals, Navy-Marine Court of Criminal Appeals, and Coast Guard Court of Criminal Appeals. Appeals from these courts are heard by the U.S. Court of Appeals for the Armed Forces.[27]
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. New Jersey has a similar requirement, with the addition of training and instruction.
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.[28][29]
Some law schools have tried to rectify this lack of experience by requiring supervised "Public Service Requirements" of all graduates.[30] 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."[31] Similarly, New York's state Department of Labor allows law students to practice in unemployment benefits hearings before the agency.[32]
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 criticized on the grounds that clients often end up subsidizing the apprenticeship of young lawyers.
In addition to the educational and bar examination requirements, most states also require an applicant to demonstrate good moral character. This has resulted in a variety of subjective factors being used to prevent applicants who are otherwise qualified from being admitted. For example, until the policy was reversed by the Supreme Court of Virginia in 1979, female applicants who were cohabiting out of wedlock were denied admission to the bar.[33] In early 2009, a person who had passed the New York bar and had over $400,000 in unpaid student loans was denied admission by the New York Supreme Court, Appellate Division due to excessive indebtedness, despite being recommended for admission by the state's character and fitness committee.[34] He moved to void the denial, but the court upheld its original decision in November 2009, by which time his debt had accumulated to nearly $500,000.[35]
For example, in Virginia, each applicant must complete a 24-page questionnaire[36] and may appear before a committee for an interview if the committee initially rejects their application.[37]
Once all prerequisites has been satisfied, an attorney must actually be admitted. The mechanics of this vary widely. For example, in California, the admittee simply takes an oath before any state judge or notary public, who then co-signs the admission form. The admittee returns the form to the State Bar of California, which updates the official roll of attorneys. The State Bar also holds large-scale formal admission ceremonies in conjunction with the U.S. Court of Appeals for the Ninth Circuit and the federal district courts, usually in the same convention centers where new admittees took the bar examination, but these are optional.
In other jurisdictions, such as the District of Columbia, new admittees must attend a special session of court in person to take the oath of admission in open court; they cannot take the oath before any available judge or notary public.
A successful applicant is permitted to practice law after being sworn in as an officer of the Court; in most states, that means they may begin filing pleadings and appearing as counsel of record in any trial or appellate court in the state. Upon admission, a new lawyer is issued a certificate of admission, usually from the state's highest court, and a membership card attesting to admission.
Two states are exceptions to the general rule of admission by the state's highest court:
In most states, lawyers are also issued a unique bar identification number. In many states where unauthorized practice of law is a problem, the state bar number must appear on all documents submitted by a lawyer.[40]
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