Guidelines on Reciprocity or "Admission on Motion" among the States as per American Bar Association
by Nikki LaCrosse
Of the 50 states and five territories listed on the chart “Reciprocity, Comity & Attorneys Exam” in the ABA's Comprehensive Guide to Bar Admission Requirements 2011, 25 states participate in a form of reciprocity. Eight states and/or regions will allow attorneys to take the Attorneys Exam, which is only the written part of the bar exam, and still others require passing scores on specific standardized exams.
While many states do participate in reciprocity, most still require that the applying lawyer have some experience in practicing law. Requirements range from one year of work as a licensed counselor up to seven years of experience before an applicant can apply to the bar. All jurisdictions that participate in reciprocity require that incoming lawyers be in good standing with their current bar associations.
Standardized tests offered by the National Conference of Bar Examiners (NCBE) are often components of an application to a state bar.
The Multistate Bar Exam (MBE), Multistate Essay Exam (MEE), Multistate Professional Responsibility Exam (MPRE), and the Multistate Performance Test (MPT) are the most commonly used tests for bar entrance, and some states require an applicant to pass one or more of these exams despite, or in lieu of, having reciprocity from his/her home state. The MBE and MPRE are the most common exams used, with only three or four jurisdictions opting to use other exams.
The MPRE tests professional responsibility. The MBE tests knowledge on six core legal subjects, which is going to be expanded to seven core subjects in 2015. The MPT tests a person’s ability to follow instructions and practical lawyer skills. The MEE tests a person’s ability to write essays in IRAC (issue, rule, analysis, and conclusion) fashion, the logical thinking process of a lawyer.
Many law students take the MPRE during their last year of law school. Many bar exam providers provide a free MPRE class to get people familiar with their bar prep offerings. Though many law students find the MPRE easy to pass, and many get high scores in the 90 percent, they find it difficult to score high on the MBE. The MBE uses the same multiple choice format as the MPRE.
The MBE, along many other parts of the bar exam, is administered twice per year. The MBE is given on the last Wednesday of February and July. Those who get special accommodation may take the MBE on a Saturday or Sunday after the bar exam ends for most applicants, because the bar examiners want those getting special accommodations to do the essays at the same time the other applicants take the essay portion of the bar exam so they do not find out about the tested subjects early.
Unlike other portions of the bar exam, the MBE is a full-day, six-hour exam for the normal applicant without accommodations, made up of 200 questions, 190 of which are scored. It usually consists of two three-hour sessions, one in the morning between 9 am and 12 pm, and one in the afternoon, between 1 pm and 4 pm. Usually a person who scores below 100 on the MBE is likely to fail the bar exam, no matter how well the person does on the essay and performance test questions. The MBE covers six subjects: Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. The National Conference of Bar Examiners recently sent a letter to law school deans announcing that Civil Procedure will be added as a subject in February 2015 to the current list of six subjects just mentioned. Most law school students have found Civil Procedure to be a challenging subject. Adding a section to the MBE in an area students wish they could forget after the first year of law school will turn the MBE into a more difficult test overall. The questions on the MBE are not divided by subject, but interspersed throughout the exam. A person who scores below 100 on the MBE might need to retake the bar exam three times because the person is likely lacking in legal foundation on basic law school courses usually taught during the first two years of law school. The MBE is considered the most difficult part of the bar exam for many because of the complexity of the questions and the timing of the exam. Depending on the jurisdiction, the MBE may make up 50% or more of an examinee’s total bar exam score.
A handful of jurisdictions offer reciprocity only to other, specific jurisdictions. For example, Idaho offers reciprocity to lawyers licensed in Oregon, Washington, Utah and Wyoming while Maine limits reciprocity to attorneys from New Hampshire and Vermont. Oregon allows reciprocity between Washington, Idaho, Utah or Alaska based on active, continuous practice of law for three out of the last five years on or before December 31, 2015. For other states, Oregon requires lawyers engage in practice for between five to seven years prior to applying for application. A complete chart of states participating in reciprocity is located on the ABA's website and the relevant charts are also listed below for your convenience.
Four states require an applicant be a graduate of an ABA-approved school and four do not. In Maine, if an applicant is not a graduate, the applicant must be actively engaged in the practice of law for three years within the U.S. jurisdiction where seeking application. In Maryland, if the applicant has practiced law for five out of the last 10 years and receives admission by examination in another jurisdiction, then the applicant is eligible for a special attorney exam. Rhode Island requires five years of active full-time practice before permission to sit for the Attorney's Exam will be granted. Utah requires five years of licensure and four to five years of practice preceding application.
Attorneys should keep in mind that when they join a new state jurisdiction, they are subject to additional mandatory continuing legal education. For instance, in California, attorneys are required to have 24 hours of continuing legal education every three years. Attorneys have gotten their licenses suspended or disbarred for failing to comply with continuing legal education requirements.
One way that lawyers can avoid joining the bar in another state is to receive a designation of pro hac vice, which is when a lawyer not licensed in a state receives permission to practice law there, usually for a specific case or client. Again, the requirements for the waiver differ greatly from state to state, but they normally require that the lawyer have several years of recent experience in the state where he/she is licensed. Registration with the courts is required, as is a fee to cover the subsequent investigation into the personal character, legal standing and educational background of the applicant. A signed declaration to follow the laws of that state is also standard. Some states require that a licensed member of the bar act as co-counsel, while others only require the name of a local attorney assisting the visiting lawyer. While appearing pro hac vice is significantly less rigorous than passing the bar, it is an involved process.
Corporate attorneys may also be able to avoid the maze of reciprocity regulations providing that their practices are limited to work directly concerning their employers and that they do not have any other clients. These lawyers are “in-house” corporate attorneys. Again, each state has its own rules and regulations regarding the practice of law under these conditions, but they tend to be less rigorous than those concerning reciprocity are.
According to Becky Sutton of the Indiana Board of Law Examiners, who coordinates all the applications for “foreign attorneys” seeking to practice law in Indiana, most lawyers “will do anything to avoid taking the bar exam.” Although there are many criteria for an Indiana law license, Sutton states, “I don't think it is any more than they [lawyers] expect. Even if it is handled differently in other states, they would still have to go through a process.” In her state, even those counselors meeting all of the requirements to practice in Indiana must re-register their Foreign Licenses for five consecutive years before they are issued a license.
The state does have a Business Counsel License that has less-stringent requirements, but in-house lawyers cannot use their time in Indiana towards fulfilling the five-year foreign-license requirement that leads to bar acceptance. Sutton warns, “They could practice [here] for 20 years, and they'll still have to apply for a Foreign License.”
In-house lawyers are plentiful enough in the U.S. that there are publications devoted just to them. Lawyers Weekly, Inc. publishes three regional versions of In-House magazine across the country and reaches approximately 25,000 lawyers in 10,000 companies. In a column for New England In-House, Andrew D'Amico, General Counsel and Vice-President of Brookstone, Inc., notes, “The fact that a company lawyer is both the participant and an observer of the corporate activities supported makes this brand of lawyering unique.” He also comments, “This lawyer has to provide legal advice while assisting in the conduct of a business.”
Law schools are beefing up their training for students to become in-house counsel with clinics and internships. For example, UC Irvine School of Law is in the process of hiring a person to head an in-house training program, and Stanford University has asked in-house counsel to speak to students about what it is like to work at a corporation.
Law students or attorneys from other countries can apply to U.S. bar associations in 31 of the 55 states and territories governed by the ABA. Each of those jurisdictions has specific requirements for foreign applicants to meet, some of which include training in English common law, additional education at an ABA-approved school and admission to the bar of another U.S. bar association.
However, a person who is educated at a law school outside of the U.S. and does not pass a bar exam in the U.S. may not work as an in-house lawyer. If that person works in law, the person may have to be referred to as an administrator, such as VP of Administration, or use a title that does not recognize the person as being an attorney. For instance, the person can work in tax or compliance as an officer or head, but not be designated as a “General Counsel.”
Additionally, there are a few other international reciprocity issues worth mentioning. First, the Lebanese Labor Law of 1962 prohibits employers hiring foreign lawyers except where the foreigner's country allows employers to hire Lebanese nationals. Due to Palestine not being a sovereign state, reciprocity does not Palestinian participation. Furthermore, the ABA has requested President Barack Obama's assistance to pressure the Indian government to drop its ban on foreign lawyers practicing law in India. The ABA says the principal of India's ban does not promote President Obama's goal of increasing trade options between the two countries.
Lawyers seeking to explore reciprocity are advised to stay informed about each state's requirements, regulations, education and exams prior to exercising reciprocity. If a person does not follow a state’s requirements for practicing law, the person may get into trouble for unauthorized practice of law. Those attorneys who are admitted to a state bar who help a person who is not complying with these regulations may also get into trouble for assisting in the unauthorized practice of law.