Comments of the National Conference of Bar Examiners on the Interim Report of the MJP Commission - Center for Professional Responsibility

MEMORANDUM

Date:  March 13, 2002

To:  ABA Commission on Multijurisdictional Practice

From:  Isidoro Berkman, Chairperson, National Conference of Bar Examiners

Re: Comments of the National Conference of Bar Examiners on the Interim Report of the MJP Commission

The National Conference of Bar Examiners has carefully considered the Interim Report of the Commission on Multijurisdictional Practice. The Board of Trustees of the National Conference offers the following comments on three of the recommendations (Recommendations 1, 4, and 8) as set forth in the Interim Report. The Board has not taken a position on the balance of the recommendations, preferring to limit its expression of opinion to the subjects of these three proposals.

Recommendation No. 1: The ABA should affirm its support for the principle of state judicial licensing and regulation of lawyers.

The National Conference strongly encourages the Commission to retain this recommendation in its final report. In this regard, we ask the Commission to consider that the American legal system is a model for the rest of the world. This is true because of the quality of the American bar as viewed nationally and because of the quantity of lawyers licensed in the United States. The latter factor has facilitated the delivery of legal services to persons to whom no lawyer would be accessible in many other parts of the world.

Certainly the success of the delivery of legal services in this country is largely attributable to its present governance structure. The institutions that have guarded the public interest in virtually all U.S. jurisdictions are their highest courts. It has been the job of these institutions to superintend admission processes to produce a competent and ethical bar. The Commission is requested to recognize the role of the state courts in devising and overseeing the existing system, which has been effective in requiring a showing of competence, character, and fitness for entry into this public profession, and in overseeing fair processes that have opened the doors of the profession to more than an elite.

In order to breathe life into this first and most basic recommendation, it is important that other recommendations as adopted by the Commission do not undermine it. The Commission, and the

American Bar Association, should recognize and respect the role of the existing governance structure in designing and sustaining the legal profession in which we and the American Bar Association justifiably take such pride.

Recommendation No. 4: The ABA should endorse a model admission on motion rule consistent with the one proposed by the ABA Section of Legal Education and Admissions to the Bar to facilitate the licensing of a lawyer by a host state if the lawyer has been engaged in active law practice in other United States jurisdictions for a significant period of time.

The National Conference strongly encourages the Commission to retain this recommendation in its final report. The model motion admission rule as developed by the Section of Legal Education and Admissions to the Bar builds on structures that presently exist in roughly half of all U.S. jurisdictions.

This mechanism facilitates the free flow of lawyers across state boundaries. It has already served the public interest for many years in many jurisdictions. Under the proposed model motion admission rule, lawyers with a quantum of experience can establish their eligibility to serve clients in additional jurisdictions on a showing of character, fitness, and competence, with the latter element to be met by a satisfactory record of practice in lieu of a passing score on an additional examination. Of course, courts would be free to adapt the proposed model to their own needs and values as they saw fit (or to reject it altogether).

The adoption of this recommendation does nothing to undercut the prerogatives of the state courts to regulate the profession; rather, the endorsement of this model rule places an additional arrow into the quiver of those state courts that wish to consider this method of regulating the movement of lawyers into their jurisdictions. The proposal will also allow those jurisdictions presently permitting motion admission to move toward greater uniformity in the approach taken.

Recommendation No. 8: The ABA should establish a Coordinating Committee on Multijurisdictional Practice to monitor changes in law practice and the impact of regulatory reform, and to identify additional reform as needed.

The National Conference endorses the continued monitoring of the evolution of law practice and regulation by an entity such as a coordinating committee if such an entity plays a neutral role in promoting regulatory policy. The National Conference does not support the creation of a standing group to serve as a lobbying vehicle for special-interest groups, as this would serve neither the interests of the state courts nor the American Bar Association.

The process undertaken by the current Commission, conscientious and thorough as the Commission has been, has provided glimpses of the pressures that can be exerted by special interests to set the agenda and affect outcomes. Perpetuating the work of the Commission through a new vehicle should occur only if the political aspects of creating and populating a coordinating committee are fully and frankly considered in advance.

The National Conference of Bar Examiners thanks the Commission for its diligence and for the opportunity to participate in the process of developing the Commission's final report.

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