| Oregon State Bar Bulletin — JUNE 2009 |
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Admission on Motion:
Proposed Rule Change: Reciprocity Admission
By Hon. Jill Tanner
| Full text of the proposed new reciprocity rule is available here |
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It has been said that change is the only constant. It has no motive; no controlling interest. It just exists as a certainty in our world.
One of the primary duties of a lawyer is to protect the public interest — to ensure that justice is served and that laws are followed. But how can a lawyer effectively protect the common good in a world of change? If the rules are always changing, what can be done to bring about equality?
The answer lies in adaptation.
Imagine a lawyer who passed the bar exam in 1954. This lawyer’s first office probably had some typewriters (manual typewriters, no less!), a few large file cabinets and old rotary-style telephones. To this lawyer a “tweet” is a sound a bird makes, “MySpace” refers to the office when the door is closed, and a “flash drive” is a hazing ritual that is better left undiscussed.
Now come back to the present day and consider what has changed. Most lawyers take it for granted that we are connected to each other in many ways. Communication is ubiquitous and almost instantaneous. We can travel from one side of the globe to the other in mere hours. And we are constantly ‘on the grid’ via closed-circuit television, satellite monitoring, GPS devices and even Google Street View.
Lawyer-centric changes in technology are just as vast (and just as important). Thus, we now use video conferencing, e-mail, electronic filing and social networking websites to do things that would have been impossible a generation or two ago.
But these changes haven’t just affected us; they have had a dramatic effect on the way our clients do business, as well. New goods and services fueled by cutting-edge technology have created an environment where many clients need representation across the country, if not around the world.
Since the law is a customer-centric profession, it is imperative that we react judiciously to new client needs, whether that means making small adjustments to our Rules of Procedure or making “bigger” changes to the way we do things. Either way, we have a duty to do what is in
the best interest of our clients and our profession.
Which brings us to the question at hand: Have these changes “erased” state lines as barriers when it comes to the practice of law? If a lawyer has attended a fully accredited law school and passed a state bar exam, should the lawyer be required to take a new exam in each state he or she wishes to practice?
The Oregon State Board of Bar Examiners has proposed a rule change (Rule 15.05, Reciprocity Admission) to the Oregon Supreme Court that would open the door to reciprocity (also known as admission on motion) with 37 other states. Before the rule is finalized, the court and board want to inform all bar members of the issues and provide an opportunity for feedback.
To clarify the issue, allow me to answer some of the anticipated questions about this proposed rule change.
What Has Been Done So Far?
Changes to the Oregon Supreme Court Rules for Admission to Attorneys in Oregon are generally proposed by the members of the Board of Bar Examiners, who are appointed by the Oregon Supreme Court. At a public meeting on March 18, 2009, the Oregon Supreme Court requested that the board’s recent proposed change to Rule 15.05, Reciprocity Admission, be submitted to the Oregon bar members for comment.
The proposed rule is a limited form of reciprocity that would expand reciprocal admission beyond the current regional group of states. If the rule is enacted, Oregon attorneys could seek admission in 37 qualifying jurisdictions without taking another bar examination. In addition, attorneys licensed in those same qualifying jurisdictions would be allowed to be licensed in Oregon without taking the Oregon bar examination.
Even though a bar examination would not be required, all applicants for Oregon admission would need to meet the following requirements:
• Degree from an ABA approved law school or meet Rule 3.05 qualifications for applicants;
• Possess good moral character and fitness (see ORS 9.220 and Rules 6.05, 6.10, 6.15, 9.05 to 9.60);
• Licensed and in good standing in a qualifying jurisdiction;
• Continuous active practice of law for at least five of the seven years immediately preceding the application; and
• Attend 15 hours of continuing legal education on Oregon practice and procedure and ethics.
Why Change the Current Rule?
In today’s world, client legal matters and interests cross jurisdictional lines. A mobile legal community, with many attorneys housed in virtual offices and many more using wireless technology to serve their clients, supports the change. There is national support for reciprocal admission. In 2000, qualifying jurisdictions numbered 26 states and the District of Columbia; in the last eight years, 11 more states have adopted this type of reciprocal admission.
What Is a Qualifying Jurisdiction?
Oregon’s current rule allows reciprocal admission with Alaska, Idaho, Utah and Washington. Each of those states is one of the qualifying jurisdictions in the proposed rule. California is not one of the qualifying jurisdictions. Other qualifying jurisdictions are: Alabama, Arkansas, Arizona, Colorado, Connecticut, District of Columbia, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.
Why Is the Proposed Rule Described as a Limited form of Reciprocity?
Oregon’s proposed rule is similar to the American Bar Association (ABA) model reciprocity rule and is based on the premise that a practicing lawyer need not be required to take another bar examination in order to be admitted in another state. There is one significant difference between the ABA model rule and Oregon’s proposed rule. The ABA model reciprocity rule allows attorneys engaged in the active practice of law for five of the last seven years in any state to apply for admission. Oregon’s proposed rule limits application only to applicants from qualifying jurisdictions that extend the same admission without a bar examination to Oregon licensed attorneys.
What are the Benefits to Oregon Lawyers and the Community?
Reciprocal admission matches the current mobile legal community. State borders are less significant to the legal profession and its clients. Oregon licensed attorneys can seek admission in 37 other qualifying jurisdictions and not face the prospect of a two-day (or more) examination. The admission in Oregon of previously licensed individuals who have maintained a legal practice in good standing for at least five years brings the potential for enhancing Oregon’s legal community and better serving all segments of the population, including low income and non-paying individuals and entities.
What are the Concerns?
Concerns voiced during the discussion of the ABA model rule and in many of the qualifying jurisdictions centered on whether a mass influx of attorneys would occur. Specifically, were the bar examination requirement removed, would the number of reciprocity applicants soar, straining existing administrative resources? Because Oregon already has reciprocity with its neighboring states (excluding California, which is not a qualifying jurisdiction), it is less likely there is a pent-up demand of individuals wanting to be licensed in Oregon. The other states that have enacted reciprocal admission report few administrative problems.
Other concerns focused on the economic impact on those already licensed to practice law in the state. However, economic protectionism created by barriers to entry may invite constitutional challenges, and it shows little concern for those whom attorneys should serve.
Finally, there is no evidence that a disproportionate number of disciplinary matters arise when attorneys are admitted without taking another bar examination.
Isn’t Pro Hac Vice the Same as Reciprocal Admission?
An applicant who is granted reciprocal admission becomes a member of the Oregon State Bar with all the rights and responsibilities. Admission pro hac vice is usually case-specific and limits practice to a litigation context.
How Do I Submit Comments?
All written comments should be directed to the Oregon Supreme Court in care of the Board of Bar Examiners to admission-on-motion@osbar.org. Written comments must be received no later than 5 p.m, Thursday, Oct. 1. Please include your name and bar number. No anonymous comments, please.
ABOUT THE AUTHOR
Jill Tanner, presiding magistrate judge in the Oregon Tax Court, Magistrate Division, is chair of the Oregon Board of Bar Examiners. She is grateful for the assistance of Dustin Dopps, marketing specialist in the OSB communications department, in preparing this article.
© 2009 Jill Tanner