An op-ed in the New York Law Journal claims that the American Bar Association’s Model Rule for Admission by Motion is distorted by the organization’s monopoly interests. The author, attorney and former judgeKenneth L. Gartner, notes that up until the 1920s, a lawyer could enter the profession via an apprenticeship. The ABA, however, started pushing for laws that would require a degree from an ABA-accredited law school before one could take a state’s bar exam. That requirement is now the law in 45 states, thus giving the ABA virtual monopoly power over entry into the profession.
What has been less noticed, Gartner maintains, is that the ABA has used its Model Rule for Admission by Motion to help cement that monopoly. He notes that under the Model Rules, “even if a lawyer takes a state’s bar examination, passes it, is admitted to practice before the bar of that state, practices successfully for years, and maintains good standing in the profession, the attorney can never be eligible for admission in another state if (1) the attorney received his or her degree from a non-ABA approved law school, or (2) the attorney’s practice consists of being a professor at a non-ABA approved law school.” This is the case even though the ABA itself has recognized the increase in the cross-border practice of law.
Gartner is at least glad to see that the ABA commission reviewing the Model Rule has proposed reducing the years-of-practice requirement from five to three.
From the ABA Journal:
• Amend the Model Rule for Admission by Motion (PDF) to allow lawyers in one U.S. jurisdiction to seek admission by motion in another jurisdiction if they have been engaged in the active practice of law in the first jurisdiction for three of the prior seven years. Currently, the rule requires that lawyers to have been engaged in law practice for five out of the prior seven years.
• Add a new provision to Rule 5.5 of the Model Rules of Professional Conduct permitting lawyers to practice in a new jurisdiction for up to a year while he or she pursues admission to practice there, subject to certain requirements. The commission’s proposal (PDF) also would add language to the comments to Rule 5.5 aimed at clarifying what would constitute providing legal services or having a continuous presence in the new jurisdiction.