Draft of Testimony to the Commission on Multijurisdictional Practice
By: Honorable Gerald W. Vandewalle, Chair Elect, Section of Legal Education and Admissions to the Bar
My name is Gerald VandeWalle and I am the Chief Justice of the North Dakota Supreme Court and the current president of the Conference of Chief Justices. I am appearing before you today, however, in a different capacity, that of Chair-Elect of the American Bar Association's Section of Legal Education and Admissions to the Bar, to present a statement on behalf of the Section.
The Section has not as yet adopted a position on the specific issues concerning multijurisdictional practice that Chair Harriet E. Miers identified in her memorandum of November 1, 2000, to Bar leaders. What the Section has done is to identify certain broad considerations that we believe to be essential to the resolution of the issues before this Commission. These considerations are set forth in a one-page resolution that I would like to give the members of this Commission.
Before discussing these considerations, I would like to say a few words about the Section's background and its primary focus. A brief description of the Section's history will help to explain why we are concerned about the issues set forth in the resolution and also why we believe that we are particularly qualified to speak on these issues.
The Section traces its origins back to 1878 when the ABA formed the Committee on Legal Education and Admissions to the Bar, one of the ABA's first standing committees. That committee took the position very early that a law school diploma is an essential qualification for admission to the bar and that a law school curriculum should consist of a rigorous three-year course of study. Throughout the Section's existence, it has sought through a variety of means to ensure that this country's systems of legal education and bar admission are designed to produce lawyers who have the requisite knowledge, skills and values to competently and ethically represent clients and to serve the systemic interests of justice, fairness and morality.
One of the Section's central functions is the accreditation of law schools. In the 1920s, former Secretary of State Elihu Root assumed the leadership of the Section and championed the development of a set of uniform standards for legal education. In words that unfortunately ring true still today, a committee chaired by Root acknowledged that despite the generally high quality of the practicing bar, "there are many cases [of] below average [practitioners]." At Root's urging, the ABA adopted a set of minimum criteria for law school programs, faculty, and facilities. That set of guiding principles, which has been refined and revised over the years to reflect the evolution of legal education and the conditions of practice, continues to serve as the Section's standards for accrediting law schools.
In 1952, the Council of the Section appeared on the first list of nationally recognized accrediting agencies published by the United States Commission of Education. In the half-century since that time, the Council has continued to serve as the officially designated accrediting agency for law schools. This past December, the Department of Education's National Advisory Committee on Institutional Quality and Integrity recommended to the Secretary of Education that the Council's status as the accrediting agency be renewed for another five-year term.
In its role as the accrediting agency for law schools, the Council has sought to accomplish the following goals, which are explicitly identified in the Accreditation Standards the Council adopted:
(1) to insure that legal education programs are of acceptable quality;
(2) to improve the quality of legal education in the United States;
(3) to promote, through legal education, high standards of professional competence, responsibility, and conduct;
(4) to protect the integrity of legal education and preserve its independence from inappropriate interference in its educational activities;
(5) to encourage equal opportunities for legal education and for access to membership in the legal profession to qualified persons, including those from groups who are or have been subjected to any form of discrimination; and
(6) to assure bar admissions authorities that the quality of legal education provided by approved schools satisfies their legal education requirements for admission to the bar.
This history directly informs the Section's views on the subject of multijurisdictional practice. Whatever position this Commission ultimately adopts, the Section believes that this country's approach to multijurisdictional practice must provide for the continued, unimpeded maintenance of:
- A national system of accreditation of law schools that seeks to ensure that all law schools prepare new members of the profession for the practice of law by educating them about the theory and philosophy of law and its institutions, providing instruction in basic lawyering skills, and instilling an understanding of a lawyer's ethical responsibilities as a representative of clients, an officer of the legal system, and a public citizen with special responsibilities for the quality of justice. Whatever position the Commission ultimately adopts on the subject of multijurisdictional practice should be consistent with the Council's safeguarding these interests by continuing to apply its accreditation standards in a rigorous manner.
- Standards for admission to practice that are designed and enforced in a manner that will protect consumers of legal services by ensuring that individuals who are licensed to practice law have the knowledge, skills and values to provide competent and ethical representation. If this Commission were to recommend the adoption of a system of national licensure or universal reciprocal admission, any such system would need to guard against the dilution of the admission standards that the states' highest courts have established under their respective constitutions or statutes in order to protect the public. Any recommendations the Commission makes should take into account that the states' highest appellate courts have shown, through their administration of admission standards, that they have both the expertise and the proven ability to establish and enforce standards of admission effectively.
- Standards and procedures, in those jurisdictions that have chosen to adopt them, for continuing legal education or other mechanisms for ensuring that attorneys who have been admitted to practice expand their professional knowledge and refine their professional skills.
- Appropriate criteria, procedures and enforcement mechanisms for disciplining attorneys who violate standards of professional conduct.
This country's long experience with legal education and admissions to the bar demonstrates the importance of clear standards and regulatory bodies that are committed to and capable of administering those standards. We fear that at least some of the proposals concerning multijurisdictional practice could have the unintended consequence of undermining the clarity or efficacy of the accreditation, licensure, and disciplinary standards currently in effect. We urge this Commission to scrutinize proposals for potential hazards of this sort and to take appropriate steps to guard against them. The Council would be pleased to assist the Commission in this endeavor.
Draft of Resolution that Will Be Presented to the Commission on Multijurisdictional Practice
As the division of the American Bar Association that is most directly concerned with legal education and bar admission and as the entity that has served since 1952 as the officially designated accrediting agency for law schools, the American Bar Association's Section on Legal Education and Admissions to the Bar urges the Commission on Multijurisdictional Practice to frame its final report and recommendations in a manner that provides for the continued, unimpeded maintenance of:
- A national system of accreditation of law schools that seeks to ensure that all law schools prepare new members of the profession for the practice of law by educating them about the theory and philosophy of law and its institutions, providing instruction in basic lawyering skills, and instilling an understanding of a lawyer's ethical responsibilities as a representative of clients, an officer of the legal system, and a public citizen with special responsibilities for the quality of justice. Whatever position the Commission ultimately adopts on the subject of multijurisdictional practice should be consistent with the Council's safeguarding these interests by continuing to apply its accreditation standards in a rigorous manner.
- Standards for admission to practice that are designed and enforced in a manner that will protect consumers of legal services by assuring that individuals who are licensed to practice law have the knowledge, skills and values to provide competent and ethical representation. If this Commission were to recommend the adoption of a system of national licensure or universal reciprocal admission, any such system would need to guard against the dilution of the admission standards that the states' highest courts have established under their respective constitutions or statutes in order to protect the public. Any recommendations the Commission makes should take into account that the states' highest appellate courts have shown, through their administration of admission standards, that they have both the expertise and the proven ability to establish and enforce standards of admission effectively.
- Standards and procedures, in those jurisdictions that have chosen to adopt them, for continuing legal education or other mechanisms for ensuring that attorneys who have been admitted to practice expand their professional knowledge and refine their professional skills.
- Appropriate criteria, procedures and enforcement mechanisms for disciplining attorneys who violate standards of professional conduct.