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Licensing of Attorneys

Licensing of Attorneys

Sections within this essay:

Background
History
Formation of an Early American Legal System
Legal Education

Law School
The Bar Examination
Character and Fitness Review
The Role of the Organized Bar
Procedure for License to Practice Law
Scope of License
Suspension or Revocation of License
Reciprocity
Additional Resources
American Bar Association

Background

The terms lawyer and attorney are commonly used interchangeably; one refers to the other. In each of the 50 states and the District of Columbia, the practice of law is limited to attorneys/lawyers who have been formally registered and admitted to practice in that state or district. Being admitted to practice is generally a three-fold process: graduation from an accredited law school, obtaining a passing score on the multi-state and state bar examinations, and meeting all character and fitness criteria established by a state administrative board responsible for overseeing the practice of law in that state. The unlicensed practice of law, by either a layman or a trained lawyer who has failed to obtain licensure, carries serious consequences, including administrative, civil, and/or criminal sanctions.

Technically speaking, successful graduation from an accredited law school, along with passing scores on multi-state and state bar examinations, objectively determine professional competency of an individual to practice law. However, because incompetency or unprofessional conduct can result in serious harm or damage to a client, licensure is mandated to ensure the overall and continued competence of each practitioner.

As with other licensed professions, the practice of law is primarily self-policed by the state administrative body that admits each person to practice. The state maintains a continued interest in the competency of attorneys after admission to practice, and has power to suspend or rescind licenses to practice within the state. Most states also mandate periodic continued legal education (CLE) after law school, to ensure that lawyers stay current on changing law and procedural practice.

History

The framers of the U.S. Constitution clearly believed that the interpretation of constitutional rights should be entrusted to specialists. Article III provides for an independent judicial power equal in power to the executive and legislative branches, and one which has jurisdiction over both states and individuals. It also created a federal judiciary with the power to determine whether Congress had exceeded its powers, and the power to review state court decisions in certain cases.

Early colonial legislation was primarily reviewed by administrative authorities in the mother countries (e.g., England, Spain, France). As colonial industry and population increased (to approximately 300,000 in 1700), review of colonial legislation came under increasing scrutiny. As for colonists, the necessity of dealing in commercial matters with English merchants, and the reliance on English law to support colonists' grievances against the crown, enhanced the desire to create a native force of legal professionals who understood the nuances of legal terms and clauses.

Apprenticeships were completed in a manner similar to England's Inns of Court. There was no formal "admission" to practice law, but, following "book" study and apprenticeship, prospective lawyers were "accepted" into practice by local and experienced members of the profession. By the time of the American Revolution, each colony had a bar of legally trained and respected professionals.

Eventually and especially in colonial cities, the legal profession enjoyed both social status and economic success. With such status, colonial lawyers became increasingly involved in politics as well; 25 of the 56 signatories to the Declaration of Independence were lawyers.

Formation of an Early American Legal System

With newly-gained American independence came a certain political antipathy toward English law, resulting in the creation of several early statutes prohibiting the citation of any English decision handed down after independence. Loyalist attorneys returned to England, and those that stayed to seize political or judicial posts under the new government found much of their talents and expertise no longer in demand. The opportunity to broaden the base of American law was considerable, with an expressed interest in Roman and French law for enlightenment and guidance. (The Code of Napoleon did not appear until the beginning of the 19th century.) However, few judges or lawyers were versed in foreign languages, and the lack of an adequate body of American case law to bridge the gap left the legal bar in splinters.

For the above reasons, the quality of lawyers in the states was palpably inferior to the systemically-trained professionals of England. Early American lawyers were generally self-taught and self-read. Respected laypersons were often elected or appointed as judges to fill the gap and keep up with the newly burgeoning nation. During the early 1800s, the state of Rhode Island had a farmer serving as its chief justice, as well as a blacksmith serving as a member of its highest court. Early judges grappled with jurisprudential conflicts to form new law that would fit the peculiar needs of a young growing country, and especially, the needs peculiar to their own jurisdictions. Eventually, judges "rode circuits," i.e., they traveled from county seat to county seat, hearing cases, and lawyers often traveled with them.

As the volume of new American case law grew, the uncertainty of earlier parochial court decisions gave way to more predictable and standard outcomes. Local judges increasingly strove to shape their own decisions so as to provide consistency with that of other regional (and eventually, state) jurisdictions.

By the end of the Civil War (1860s), the influence of English law upon America was negligible, although familiar procedures, vocabulary, and conceptual approaches to legal jurisprudence survived and were incorporated into American law. A few states originally paralleled the English system by distinguishing barristers from solicitors within the legal profession (Massachusetts, New Jersey, New York, Virginia). However, by the mid-1800s, such distinctions were dropped in favor of a single class of lawyers who dealt directly with both clients and courtrooms.

Legal Education

Notwithstanding the splintered beginnings of American law, the accepted preparation for becoming a lawyer remained the completion of an apprenticeship under a trained lawyer, along with self-reading of such printed sources as the American edition of William Blackstone's "Commentaries on the Laws of England" (which first appeared in the 1760s) and James Kent's "Commentaries on American Law." Eventually, Blackstone's Commentaries sold as many copies in America as in England.

The earliest known formal legal education was at Oxford University, as early as the 1750s. William Blackstone began offering lectures on the English common law at that time (which became the source for his later Commentaries), and many smaller American universities later followed his example. In 1779, a chair of law was established at William and Mary College in Virginia. There followed a series of independent schools of law, not associated with universi-ties or colleges, which functioned as offshoots of the apprenticeship system. The most notable of these (and credited as the first law school in the country) was the Litchfield Law School in Connecticut. Founded by Judge Tapping Reeve, the school looked much like a country schoolhouse, and operated solely on daily lectures. There were no prerequisites or entrance requirements and no final examinations. The school operated continuously from 1784 to 1833. After this time, schools like Litchfield died out or merged with instruction in a university setting.

It is important to note that from the latter 1700s to the second half of the 1800s, the legal profession in the United States was not considered academic or elite, but rather vocational and functional. The present day "law school" did not take shape until 1829, when Justice Joseph Story reorganized the separate law department at Harvard University. Prior to that time, legal studies were considered part of a broader liberal education at the universities, and non-university law schools were comparable to modern-day vocational schools.

Justice Story set up Harvard's law school curriculum as an exclusive legal education, premised on the assumption that its students had acquired a sufficient background in liberal arts prior to admission to law school. However, even the ambitious Harvard program had more intellectual pretension than substance. There were no entrance examinations, interim examinations, or final examination. The only requirement was the completion of two years at the school and the payment of fees.

By 1870, America had over 30 university law schools, mostly premised on Story's model. In reality, however, these schools had no academic admissions requirements, and no attempt was made to ensure that students had already achieved the antecedent liberal education contemplated by Story.

Law School

Today, there are over 200 law schools in the United States, the great majority of which have been approved by the American Bar Association (ABA) and have met somewhat stricter standards of the Association of American Law Schools. In most schools, admission is premised on scores achieved on the Law School Admission Test (LSAT), undergraduate grade point average and course of study, and other personal criteria factored in, e.g., ethnic or cultural diversity, leadership or success in extra-curricular activities, etc. Although not all law schools require a four-year undergraduate degree as a prerequisite for admission, an abundance of applicants creates a competitive edge that results in the great majority of vacancies being filled by college graduates. The formal three-year course of intensive professional training has replaced the apprenticeship form of training. (Law clerkships during law school are common in both the public and private sector, and again, create a competitive edge for job placement after graduation.)

The Bar Examination

Each state prepares and administers its own written examination for applicants seeking licensure to practice law in that state. The vast majority of states incorporate the use of the Multi-state Bar Examination (MBE), a day-long multiple-choice test which challenges a candidate's basic understanding of general law and legal theories (e.g., torts, contracts, criminal procedure, constitutional rights, etc.). This is followed by another day-long written examination on particular state law, which tests candidates' knowledge of not only state statutes, but also state approach to common law issues. Finally, most states add a half-day written examination on ethics and professional responsibility.

Character and Fitness Review

State bar associations conduct character and fitness reviews of prospective candidates seeking licensure to practice law in those states. This is generally conducted through a series of multi-page applications, reference-checking, employment history verifications, reviews of letters of recommendation, and criminal background investigations.

The Role of the Organized Bar

The Association of the Bar of the City of New York was founded in 1870 by what one lawyer referred to as the "decent part of the profession." It was a group of 75 gentlemen from this state bar that ultimately met in 1878 to form the American Bar Association (ABA). Its goal was reform: fighting corruption, drafting better laws, and raising the prestige of the profession. From this group, the Association of American Law Schools was organized for the improvement of legal education.

By 1905, the ABA began to require (of its members, not of the profession as a whole) a minimum of three years of law study prior to practicing law. In fact, the ABA had become an elitist organization, representing the upper crust of the profession, with elitist values. Early on, it promoted codes of ethics for its members in an effort to define and uphold appropriate, professional conduct. Today, the ABA Model Rules of Professional Conduct have been adopted and/or incorporated by a majority of the states.

In 1952, the Association established three years of college as a prerequisite for admission to law school. By the 21st century, a majority of law schools either required or preferred the completion of course study for a four-year bachelor's degree prior to the study of law. After completion of an additional three years of law study, a law student is awarded the degree of juris doctorate (J.D.) and becomes a candidate for admission to the bar.

Procedure for License to Practice Law

Today, the admission to, and regulation of, the legal profession is primarily the concern of state bar associations. Each state administers its own admissions requirements and procedures, although all states generally focus on law school completion, bar examination results, and background check.

While awaiting bar examination test results, prospective candidates for admission begin filing their applications with state bar organizations and forwarding law school and undergraduate transcripts. Bar admissions committees review the total submissions for each candidate and favorably select candidates considered qualified for practice.

Most selection decisions (or declinations) are communicated by correspondence to the applicants/candidates. The successful candidate is generally admitted to practice in a formal "swearing-in" ceremony or procedure before a court. Many states require the candidates to have "sponsors" who are attorneys already admitted to practice in that state. The newly-admitted attorneys receive personal identification numbers from the state bar, which are later generally added to their signatures on all court documents or legal proceedings handled in the practice of law.

Scope of License

Few states actually issue a "license" to practice law per se; generally the attorney receives a formal frame-worthy certificate evidencing admission, the display of which is often required by several states.

Lawyers are only permitted to practice law in a state where they have been formally admitted. Obtaining license to practice accords each lawyer with all rights to perform all duties associated with the profession. These include counseling persons in legal matters; representing persons in a court of law, before an administrative tribunal, or in legal controversies; advocating persons' rights or legal positions in a legal controversy; preparing and drafting legal documents; and negotiating on behalf of other persons.

A license to practice law within a state refers to practice within the state courts. Federal trial courts generally premise their admissions on the policies of the state in which they are located. Other U.S. federal courts, particularly appellate courts, have open admissions policies, allowing attorneys to argue cases before them if they are licensed anywhere in the country.

Suspension or Revocation of License

By virtue of state law, the highest court of each state generally delegates authority to state bar organizations to oversee, monitor, and discipline licensed attorneys within the state. This includes the vested authority to suspend or revoke licenses.

Generally, each state bar has an attorney grievance section that reviews and adjudicates complaints received. Procedural due process requires that the subject attorney receive notice of the substance of the complaint received. Additionally, the attorney must be granted sufficient time to prepare a response (usually first in writing, then finally, in a hearing). Because suspension or revocation of a license interferes with an attorney's ability to be gainfully employed, adverse decisions may be appealed in a court of law. Courts of law do not have the power to suspend or revoke an attorney's license. Their jurisdiction is limited to appellate review of a state bar's action.

However, outside of the bar association forum, an attorney may also be sued for legal malpractice in a court of law. If a judgment is entered against him or her, the damages are compensatory in nature (usually in the form of a monetary judgment) and payable to the complainant; the court cannot suspend or revoke the attorney's license as part of the award in the lawsuit. Notwithstanding, notice of the adverse judgment may then be forwarded to the state bar for review. It is the state bar organization that will decide whether the judgment against the attorney substantively represented a breach in the model rules, code of conduct, or code of ethics such that a suspension or revocation of the license to practice law is warranted.

Reciprocity

Many states open the practice of law to out-of-state applicants who have already been admitted to the bar of another state. While each state establishes its own criteria for admission, reciprocal agreements between states are common. Depending on factors such as the number of graduating law students within the state, geographic desirability (high demand for "Sunbelt" states like California, Florida, and Arizona), or average earnings compared to other states, etc., state bars may lower or raise the threshold for admission of external candidates. Some may require prospective candidates to take the state's bar exam; others will accept a combination of passing results on the Multi-state bar examination and a minimum number of years' in practice in another state. For example, as of January 2005, the states of Maine, New Hampshire, and Vermont entered into a reciprocity agreement allowing attorneys to be admitted to one another's bars without taking the bar examination for that state. The geographic proximity of the states and the frequent representation by law firms of corporations who operate in all three states prompted the change.

ALABAMA: The state does not offer reciprocity.

ALASKA: The state has reciprocity agreements with the following other states: CO, CT, DC, GA, IL, IN, IA, KY, MA, MI, MN, MO, NE, NH, NY, ND, OH, OK, PA, TN, TX, UT, VT, VA, WA, WV, WY.

ARIZONA: The state does not offer reciprocity.

ARKANSAS: Admission by motion went into effect in October 2004.

CALIFORNIA: The state does not offer reciprocity, but offers a shorter bar examination for attorneys licensed in other states with good standing for at least four years prior to application.

COLORADO: Other states have to reciprocate for Colorado lawyers.

CONNECTICUT: Other states have to reciprocate for Connecticut lawyers.

DELAWARE: The state does not offer reciprocity.

DISTRICT OF COLUMBIA: Lawyers who have been admitted for five years in another jurisdiction immediately preceding application for admission in DC can be admitted without examination; other lawyers can be admitted without examination if they graduated from an ABA accredited law school and obtained certain minimum scores on the Multi-state Bar Examination and the Multi-state Professional Responsibility Examination.

FLORIDA: The state does not offer reciprocity.

GEORGIA: Georgia offers a shorter bar examination for lawyers admitted by examination and in good standing in another state for at least twelve months prior to taking its Attorneys' Examination. Also offers admission without examination for lawyers from reciprocal states who have practiced at least five years.

HAWAII: The state does not offer reciprocity.

IDAHO: Offers reciprocity only to certain lawyers licensed in Oregon, Utah, Washington, and Wyoming. However, lawyers who have actively practiced law for at least five of the last seven years immediately preceding their applications for admission do not have to take and pass the Multi-state Bar Examination, but must take and pass the remainder of the Idaho bar examination.

ILLINOIS: Has reciprocity agreements with the following states: AK, CO, CT, DC, GA, GU, IN, IA, KY, MA, MI, MN, MO, NE, NH, NMI, NY, NC, ND, OH, OK, PA, TN, TX, USVI, UT, VT, VA, WA, WV, WI, WY.

INDIANA: Has no formal reciprocity but provisionally admits lawyers who have practiced law for five years of the seven years immediately preceding their applications for admission without taking and passing the Indiana bar examination.

IOWA: Lawyers who have practiced law for five full years of the seven years immediately preceding their applications for admission to practice law in Iowa can be admitted to practice without taking and passing the Iowa bar examination.

KANSAS: Does not have reciprocity.

KENTUCKY: Kentucky has reciprocity agreements with the following states: AK, CO, CT, DC, GA, IL, IA, MA, MI, MN, MO, NE, NH, NY, NC, ND, OH, OK, PA, TN, TX, UT, WA, WV, WI, WY.

LOUISIANA: Has no express reciprocity agreements, but provisionally admits certain lawyers from other jurisdictions under special criteria.

MAINE: As of January 2005, the states of Maine, New Hampshire, and Vermont entered into a reciprocity agreement allowing attorneys to be admitted to one another's bars without taking the bar examination for that state. Shorter bar examination for lawyers in good standing in another state for at least three of the preceding five years prior to admission to practice law in Maine; shorter bar examination for lawyers in good standing in another state depending on passing score on MBE within sixty-one months of the current administration of the Maine bar examination.

MARYLAND: Has no formal reciprocity agreements, but offers shorter bar examination for lawyers in good standing in another state for at least five years of the ten years prior to application for admission in Maryland.

MASSACHUSETTS: To gain license in this state, an applicant must have been admitted to practice in another state, district or territory for at least five years prior to application for admission and be in good standing in each such state, district and territory. An applicant must be a graduate of a law school which at the time of graduation was approved by the American Bar Association or was authorized by a state statute to grant the degree of bachelor of laws or juris doctor.

MICHIGAN: Lawyers who have actively practiced law for three of the five years preceding their applications for admission can be admitted to practice in Michigan without taking and passing the Michigan bar examination.

MINNESOTA: Lawyers who have been, as their principal occupation, actively and lawfully engaged in the practice of law in another jurisdiction for at least five of the seven years immediately preceding application may be admitted without examination; other lawyers may be admitted based on a minimum passing score on the Multistate Bar Examination if they apply within two years of the date they passed that test in another jurisdiction

MISSISSIPPI: Mississippi has a very limited reciprocity admission rule with states who will offer similar reciprocity to Mississippi lawyers. Lawyers from other states who have practiced at least five years may be admitted after taking and passing an attorney's examination.

MISSOURI: Will admit lawyers from states that have similar reciprocity for Missouri lawyers.

MONTANA: The state does not offer reciprocity.

NEBRASKA: Lawyers who have graduated from an ABA accredited law school and who have passed a bar examination comparable to Nebraska's, including the Multi-state Professional Responsibility Examination, or who have graduated from an ABA accredited law school and who have actively and substantially practiced law for five of the last seven years prior to application for admission can be admitted to the practice of law in Nebraska without having to take and pass a written bar examination.

NEVADA: Does not have formal reciprocity agreements with any states.

NEW HAMPSHIRE: As of January 2005, the states of Maine, New Hampshire, and Vermont entered into a reciprocity agreement allowing attorneys to be admitted to one another's bars without taking the bar examination for that state. This state also has reciprocity with the following states: AK, CO, DC, GA, KY, MA, MN, MO, NB, NY, NC, ND, OK, PA, TX, UT, WA;

NEW JERSEY: The state does not offer reciprocity.

NEW MEXICO: The state does not offer reciprocity.

NEW YORK: Has reciprocity with the following states: AK, CO, DC, GA, IL, IN, IA, KY, MA, MI, MN, MO, NE, NH, NC, ND, OH, OK, PA, TN, TX, UT, VA, WA, WV, WI, WY.

NORTH CAROLINA: Has reciprocity agreements with the following states: AK, CO, CT, DC, GA, IL, IN, IA, KY, MA, MI, MN, MO, NE, NH, NY, ND, OH, OK, PA, TN, TX, UT, VT, WA, WV, WI, WY.

NORTH DAKOTA: Does not have formal reciprocity, but lawyers who have been admitted to the bar of another state or the District of Columbia for at least five years and who have been actively engaged in the practice of law for at least four of the last five years immediately preceding their applications for admission can be admitted on motion without examination. Applicants receiving particular scores on the Multi-state Bar Examination and Multi-state Professional Responsibility Examination may also be admitted on motion if their applications are received by the North Dakota Bar Board within two years of the date of the MBE examination if they were admitted in the jurisdiction in which they took that test.

OHIO: This state does not have formal reciprocity agreements with other states. However, it provisionally admits (without examination) applicants who have taken and passed a bar examination and been admitted as a lawyer in the highest court of another state or in the District of Columbia, and who have practiced law, as defined in the rule, subsequent to that admission for at least five full years of the ten years prior to filing an application. Applicants also must demonstrate that they intend to engage in the practice of law in Ohio actively on a continuing basis.

OKLAHOMA: This state has formal reciprocity agreements with the following states: AK, CO, CT, DC, GA, IL, IN, IA, KY, MA, MI, MN, MO, NE, NH, NY, NC, ND, OH, PA, TN, TX, UT, VT, VA, WA, WV, WI, WY.

OREGON: This state provisionally admits qualifying Idaho and Washington lawyers.

PENNSYLVANIA: This state has reciprocity with the following states: AK, CO, CT, DC, GA, IL, IN, IA, KY, MA, MI, MN, MO, NE, NH, NY, NC, ND, OH, OK, TN, TX, UT, VT, VA, WA, WV, WI, WY.

RHODE ISLAND: This state will provisionally admit persons admitted to the practice of law in another state, district or territory of the United States who have actively engaged in the practice law (including teaching law) there for at least five years of the last ten years immediately preceding application for admission to Rhode Island, and after taking and passing the essay portion of the Rhode Island bar examination.

SOUTH CAROLINA: : Does not have formal reciprocity agreements with any states.

SOUTH DAKOTA: This state has a reciprocity agreement that went into effect in 2004. Applicants must show five years prior practice in prescribed areas.

TENNESSEE: This state will provisionally admit applicants who meet the educational requirements applicable to Tennessee bar examination applicants and have actively engaged in the practice of law in another jurisdiction for at least five years immediately preceding their applications for admission in Tennessee.

TEXAS: This state has limited admission for certain lawyers to be admitted without examination and after passage of the full student examination.

UTAH: Has reciprocity agreements with the following states: AK, CO, CT, DC, GA, ID, IL, IN, IA, KY, MA, MI, MN, MO, NE, NH, NY, NC, ND, OH, OK, PA, TN, TX, VT, VA, WA, WY.

VERMONT: As of January 2005, the states of Maine, New Hampshire, and Vermont entered into a reciprocity agreement allowing attorneys to be admitted to one another's bars without taking the bar examination for that state. Otherwise, lawyers who have been admitted to the practice of law in another jurisdiction of the United States may be admitted upon motion and without examination provided that at the time of application they have been actively engaged in the practice of law for five of the preceding ten years in one or more jurisdictions of the United States, are currently licensed to practice in at least one such jurisdiction, and are not under suspension or revocation in any jurisdiction. Any or all of the five-year admission requirement may be waived in certain circumstances. Additionally, each applicant who at the time of application has been admitted in another state and has engaged in the practice of law for less than five of the preceding ten years, and who is currently licensed to practice in at least one such jurisdiction, and is not under suspension or revocation in any jurisdiction may be admitted after examination as described in Vermont Admission Rule 6(a)-(e).

VIRGINIA: Virginia will provisionally admit lawyers from other states who reciprocate for Virginia lawyers.

WASHINGTON: This state has formal reciprocity agreements with the following states: AK, CO, CT, DC, GA, ID, IL, IN, IA, KY, MA, MI, MN, MO, NE, NH, NY, NC, ND, OH, OK, OR, PA, TN, TX, UT, VT, VA, WV, WI, WY.

WEST VIRGINIA: This state has reciprocity agreements with the following states: CO, CT, DC, IL, IN, IA, KY, MA, MI, MN, MO, NE, NY, NC, ND, OK, PA, TX, VT, VA, WA, WI.

WISCONSIN: Wisconsin will offer provisional admission to practicing lawyers from states that reciprocate for Wisconsin lawyers.

WYOMING: Wisconsin will offer provisional admission to practicing lawyers from states that reciprocate for Wyoming lawyers.

Additional Resources

Farnsworth, E. Allan. An Introduction to the Legal System of the United States. New York: Oceana Publications, Inc., 1999.

American Bar Association

321 North Clark Street

Chicago, IL 60610
Phone: (312) 988-5000
URL: www.abanet.org

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