July 17, 2001
Commission on Multi-Jurisdictional Practice
c/o John A. Holtaway
ABA Center for Professional Responsibility
541 No. Fairbanks Ct.
14 th Floor
Chicago, Illinois 60611
Re: Comments of the Minnesota Board of Law Examiners
Concerning Multijurisdictional Practice
Dear Mr. Positan and Members of the Commission:
The Minnesota Board of Law Examiners is responsible for the admission of lawyers to the Bar of Minnesota. This responsibility includes administering the Minnesota State Bar exam, conducting investigations of applicants to the bar and hearing appeals from applicants who are denied admission. The Board is appointed by the Minnesota Supreme Court.
The members of the Minnesota Board recognize that technological and other developments in the modern practice of law often make it difficult to determine where one’s practice is actually sited as well as where one is required to be licensed in order to avoid the unauthorized practice of law. As the Commission searches for solutions to these complex problems, the Minnesota Board of Law Examiners advocates that the Commission keep in mind the importance of maintaining a rigorous character and fitness component as an essential element of qualification for admission to the bar. The Board also recommends that the ABA accredited law degree be accepted as the essential educational prerequisite for admission to the bar. The Board supports the use of admission on motion rules to facilitate cross border admission. The Board further believes that only by maintaining a state-based admission process that is accountable to the state supreme courts will the integrity of the admission process be upheld.
ROLE OF SUPREME COURTS IN BAR ADMISSION PROCESS
Proposals have been made to your Commission recommending national licensure of attorneys, national registration of attorneys or systems whereby admission in one state would be recognized as authority to practice in any other state. Although you have received extensive testimony concerning the transactional, transnational and trans-border practice of law, there is no transnational or trans-border entity that stands as a ready substitute for state supreme courts’ interest in and commitment to overseeing the admission and discipline of attorneys.
The courts are responsible for the protection of the public and integrity of the administration of justice. Determining who will be admitted as officers of the court requires that the state supreme courts maintain their authority and responsibility to regulate the practice of law. The practice of law is rooted in local interests, local concerns, and local volunteers whose personal commitment to maintaining the integrity of the profession is shown through volunteer hours working on attorney regulatory boards. The concerns that have been raised with regard to trans-border practice should be addressed and resolved in ways other than by recommending that the state supreme courts abandon their authority to regulate the practice of law. The extensive systems in place at the local level to regulate the profession should not, and need not be sacrificed.
IMPORTANCE OF ABA ACCREDITED DEGREE AS ESSENTIAL EDUCATION CREDENTIAL
The Board also is interested in supporting the continued use of the ABA accredited degree as the educational prerequisite for admission. A successful score on the bar exam is not a sufficient substitute for having received a comprehensive legal education from an accredited law school, particularly in those states which set the passing score at a relatively low level. States that have the same or similar educational requirements and roughly equivalent passing scores on their state bar exams have a basis to pursue reciprocal as well as regional admission and should be encouraged to do so. Such explorations are preferable to efforts to "reform" bar admission by adopting sweeping national changes that may have the effect of promoting the lowest common denominator standards for admission.
CHARACTER AND FITNESS INVESTIGATIONS
Boards that regularly review bar applicants’ character and fitness are acutely aware that dishonest and unethical persons seek admission to the bar. While the number of such applicants is small, only by carefully reviewing all applicants and verifying their credentials will the state fulfill its responsibility to the public that those licensed as attorneys are in fact fit for admission. It is shortsighted to dismiss the importance of admission qualification procedures by saying that the numbers rejected are small therefore the risk is acceptable. It is equally shortsighted to suggest that those harmed by dishonest attorneys may seek resolution through the disciplinary counsel’s office.
Professional licensing exists to qualify applicants before admission – both with regard to competence and integrity. Whatever steps are taken toward addressing multijurisdictional practice concerns, public protection concerns must remain paramount. The legal profession cannot afford to appear to abandon its commitment to self-regulation in an effort to promote the interests of attorneys whose practices regularly span state borders.
Minnesota’s character and fitness statistics may be helpful in considering these issues. In recent years Minnesota has received approximately 1,100 applications annually, both from recent law graduates and from practicing attorneys. The number of applicants denied for character and fitness deficiencies has averaged eight (8) per year over the past eight (8) years. In addition to those who were denied, it is typical that several more withdraw their applications after the investigation reveals the existence of false information on the bar application.
While these numbers are small, they are not insignificant. They suggest that a consistent number of law graduates as well as licensed attorneys have records that show that they lack the character and fitness to practice law. If a "reform" of the admission system eliminates or lessens the states’ opportunities to conduct character and fitness investigations, or reduces the resources devoted to verification of credentials, the integrity of the bar will suffer. Rigorous admission standards are necessary in order to assure that the profession is able to maintain its high standards.
ADMISSION ON MOTION RULES
The Minnesota Board’s experience with liberal admission on motion rules has been a favorable one. The Board recommends it to the Commission as an effective means of facilitating admission of out-of-state attorneys while avoiding overhauling each state’s admission system. Currently 27 states, including Minnesota, have adopted a rule that permits admission of licensed attorneys from other states without further testing.
Minnesota’s rule requires that the applicant has practiced five (5) of the past seven (7) years and that he/she has graduated from an ABA accredited law school. A local office is not required, but the attorney is required to designate the Clerk of Court in Minnesota as agent for service of process.
Minnesota is one of the few states that has a second means of admission on motion which is based on the applicant having received a scaled score of 145 or higher on a recent administration of the Multistate Bar Exam in another state. As a result of having a liberal admission on motion rule Minnesota, has a significant number of out of state attorneys. However, each is a full contributor through annual fees to the support of the attorney regulatory boards in the state.
In addition to recommending admission on motion rules, the Board does not oppose the amendments to the Model Rules of Professional Conduct proposed by the Ethics 2000 Commission which permit temporary practice through safe harbor provisions and those which require reciprocal discipline. Such reforms, along with liberal admission on motion provisions would address many of the most troublesome aspects of multijurisdictional practice without requiring massive changes in the state-based admission processes.
Thank you for permitting the Board to express its views on these important issues.
Very truly yours,
MINNESOTA BOARD OF LAW EXAMINERS
John D. Kelly
Margaret Fuller Corneille