January 8, 2002
John A. Holtaway
ABA Center for Professional Responsibility
541 North Fairbanks Court
14 th Floor
Chicago, Illinois 60611
RE: Commission on Multi-jurisdictional Practice
Dear Mr. Holtaway:
I am writing as a victim of the present system or, more accurately, the lack of a system, to lend my support for necessary reform of the bar admission process as regards relocation to a new jurisdiction by a lawyer already licensed to practice in another state. While this letter focuses mainly on an issue which is very significant to me personally due to my own experiences, I think the overall issues which the Commission is taking up are of great importance to the majority of practicing lawyers since there are few areas of legal practice today that do not involve crossing state borders in some fashion in fully representing our clients’ interests.
Let me begin with my credentials. I am a 1968 graduate of the University of Michigan Law School, which means I have been practicing law for more than 33 years. In the course of that practice, I have lived in Ohio, France, Florida and Illinois. I have been admitted to practice in each of those states, in each case after successfully passing the local bar exam. My stay in France (just 18 months) was not long enough for me to qualify for admission to the formally recognized status of legal adviser ("conseil juridique") although I was considered an apprentice to such status while I was resident there. My bar exams occurred in 1968, 1980 and 1999.
The reason I took the last two bar exams was that there was no other way to gain admission to those states’ bars. In a sense my application for admission to the Florida Bar caused the requirement for both the second and third exam. Since Florida did not allow admission on motion to lawyers qualified to practice in other states, I was required to sit for the bar exam, twelve years after both my last year of law school and my previous bar exam.
I should note that I am an employed lawyer, working as an in-house attorney with a large public company and have been since 1976. So even though I moved to Florida in connection with a relocation of our corporate headquarters to that state, the authorities of the Florida Bar were insistent that I and my legal department colleagues become members of the Florida Bar and do so, in the only way then possible, by taking the Florida Bar exam.
Having taken the Florida Bar exam and having thereafter lived in Florida for another four years, I was doomed to repeat this performance in Illinois, although there I first waited 15 years hoping for relief from the rule that required that I must have practiced in a state which grants Illinois lawyers reciprocity (Florida does not) for at least 5 out of the 7 years preceding relocation to Illinois in order to gain admission to the Illinois bar on motion. After waiting 15 years for relief, I gave up and took the Illinois bar exam, by the way experiencing with my latest bar review course what it was like to go to school with contemporaries of my own children.
I have devoted myself to this long recital to cause the reader to reflect upon how much social utility there is in having a lawyer with first 12 years experience and later 30 years experience go back to relearn for a second and third time such things as the common law elements of the crime of manslaughter, the Rule against Perpetuities and similar gems of legal education. Elsewhere I have written at length on my most recent experience with the Illinois Bar Exam in 1999, which can be found in the September/October 1999 ACCA Docket under the title Multistate Misadventure: Taking the Bar Again at Age 55, a copy of which I have enclosed.
It is simply not a socially responsible policy to have this be the standard for admission to the bar for the many lawyers who for whatever reason find themselves relocating to a new state. Each of the bar exams that I took required preparation time of several hundred hours, taking into account both classroom time and time spent reviewing the bar review course materials. This time was concentrated in the two months immediately preceding the exams and involved a routine that required all of my non-working hours and week-ends through-out the preparation period. I submit that what was tested was not my competency to practice law, but my ability to find the time and my willingness to submit to the tedium of the bar review preparation.
I understand the establishment of this Commission is a recognition by the national leadership of the Bar that my personal story, among others, makes as little sense to them as it does to me. Your proposal and commentary at Recommendation 4 clearly sets forth that recognition without providing a clear set of instructions as to what to do to eliminate the socially useless exercise of multiple bar exams.
As a victim of the existing system, I have done a fair amount of thinking about what ought to be done. Clearly what ought to be done is to make sure that in most cases a lawyer need not take more than one bar exam just because he or she relocates to another state. We already have a multi-state bar examination system, which is almost uniform throughout the U.S. It seems to me that once a lawyer successfully passes this exam, he or she ought to be able to apply anywhere in the U.S. for admission to the local bar. If that person decides to move to another state sometime after taking the bar exam in one state, the results of that bar exam should be valid in the new state, at least for a reasonable length of time, let’s say 4-5 years. After that, the person’s record as a practicing lawyer should take over and permit admission without taking another bar exam.
Whatever length of time for recognition of the continuing validity of the bar exam results is finally selected, that same length of time should be the minimum period of active practice necessary to permit admission on motion, so that the two concepts form an integrated rule governing admission to the bar.
Whenever a lawyer relocates to another state, that state, in my view, ought to be able to require the same form of application with the same amount of personal data (to determine integrity, professionalism and other aspects of the practitioner’s record) as is required of other first time applicants, but there just should not be a further bar exam. If a state wants to impose mandatory CLE, that would be fair so long as the requirement is commensurate with what other members of that bar must fulfill. Even mandatory probono for some period after admission would be better than another bar exam.
While the issue of multi-state jurisdictional practice encompasses a lot more than the question of having to take another bar exam, it seems to me that this issue is the biggest impediment facing those of us who have for whatever reason found ourselves relocating from one state to another after our careers had attained a reasonable level of maturity.
I wish you well in your deliberations on this issue which is critical to the legal community as a whole and to the larger segment of our society that is dependent upon a successful evolution of the legal profession to meet the needs of a changing world around us.
J. Eric Schaal
Associate General Counsel