Andrew Perlman on "Bar Admissions for Out-of-State Lawyers"

[We're delighted to post this guest blogging piece by Andrew Perlman, of Suffolk University Law School]

Now here’s a common problem.  Imagine that you were admitted to the bar four years ago and now want permanent admission in a second state.  Nearly every American jurisdiction would require you to re-take at least some portion of the bar exam as a condition for the second admission. In most states, you would even have to re-take the Multistate Bar Examination (“MBE”), the nationally administered 200-question multiple choice test that covers only commonly accepted legal principles.  Because an attorney usually has to receive a satisfactory MBE score to gain the initial bar admission, the lawyer’s re-taking of the MBE doesn’t give the second state any more information about the lawyer’s competence. 

So why do most states require the junior lawyer (and even some senior lawyers) to re-take the MBE?  It certainly doesn’t need to be this way.  Indeed, the European Union has far more permissive admission rules for lawyers from other countries than we have for lawyers from other states.  The answer that is typically given in this country, at least by commentators, is that the rules reflect protectionism, pure and simple.  In fact, I’ve gone so far as to argue that the rules may even be unconstitutional.

Despite the widespread criticism, the draconian restrictions on additional bar admissions persist.  Even the ABA’s Commission on Multijurisdictional Practice, which drafted a model rule for admission by motion, failed to address this particular problem.  So what’s going on here?  Is there some explanation for the foot-dragging on this issue other than protectionism? 

Comments

[David Giacalone]

Nope -- unless "bad precedent that might by analogy weaken the rationale for other forms of protectionism" is a separate explanation.

I had to smile at your saying "even the ABA Commission," since ABA is often the profession's foremost guild. One point: Any justification for re-taking the MBE is probably stronger the longer the attorney has been in practice.

An interesting recent study might interest you and other readers: "What is the Objective of Professional Licensing? Evidence from the US Market for Lawyers" (Nov 2004), Turin Univ. Profesoor Mario Pagliero finds that the objective of such regulation in the USA is explained by capture theory, rather than public interest theory, and that "licensing increases annual entry salaries by more than $20,000, " with a total welfare loss of over $6 billion. This link accesses an abstract, but the entire study is available with a free registration - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=622761 .

[Andrew Perlman]

David,

You're quite right about the ABA having engaged in plenty of protectionism over the years. But the protectionism is usually about protecting lawyers from non-lawyers, not protecting lawyers from other lawyers. One would think that a national organization of lawyers would want young attorneys to have greater freedom of movement, given how often junior people tend to move around early in their careers.

It continues to amaze me that state bars can engage in such blatant protectionism against out-of-state lawyers without much in the way of opposition.

[Laura I Appleman]

Actually, the ABA, the AALS and New York's City Bar Association all were founded in part to protect lawyers from other lawyers--that is, elite WASP lawyers from immigrant/ethnic/working class lawyers. The whole move from the apprenticeship system to formalized law school training was encouraged by the ABA/AALS/State bar commissions in the late 19th century, due to concern about the influx of "undesirable" lawyers practicing criminal and personal injury law. Protectionism at work!

For more about this, I have a new article out which discusses how the ABA, the AALS and the state bar commissions colluded with the legal elite at the turn of the last century to create the modern American law school. This particular triumvirate worked hard to close down a lot of law schools which served the working class and immigrants. If you're interested, you can access it at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=672523

[Andrew Perlman]

Laura,

Good point about the history of the ABA and the AALS. I should have thought of it myself, since I teach at Suffolk, one of the very schools that was on the front lines of the battles that you identify.

Despite that history, I think it's fair to say that the ABA's protectionism today tends to focus somewhat more on the threat of non-lawyers than of fellow lawyers. But perhaps even that is an overstatement?

[Laura I Appleman]

Andrew,

In fact I discuss Suffolk in some detail in my article--there was quite a battle over the formation of law school! Impressively, Gleason Archer held on until the 1940's, fighting not only the ABA but also the Boston legislature (who backed Harvard, BC and BU). WWII really was the weakening point for him, and then the muscle of the Mass State Bar and the AALS took over. Truly a fascinating saga.

I don't know if I agree, however, about the ABA focusing *more* on non-lawyers. Look at the AALS's recent moves against Thurgood Marshall Law School, threatening to shut it down if it doesn't improve its stats, despite its mission of serving a less-privileged student body. Or how about the push to raise bar exam passage scores? Here in NY, the NY state bar raised the minimum score several points, in effect this July, and all 15 area law schools--including Columbia and NYU--protested en masse.

My sense is that the gatekeepers of the profession are equally concerned with both non-lawyers and fellow lawyers, if those fellow lawyers are seen as a threat.

[Andrew Perlman]

Suffolk's history is indeed fascinating.

As for the ABA's moves against unaccredited law schools or increasing bar passage scores, arguably those moves reflect protectionism against *prospective* lawyers and not against fellow lawyers per se. But I see your point.

[Dennis J. Tuchler]

Laura Appleman:

Your response raises an interesting question as to the value of legal education in the formation of the competent lawyer. Where the reforms in the requirements for admission to the bar salutory? That is, did they contribute to the increase in lawyerly quality? I have heard it said that everything past the first year of law school is unnecessary and that the third year is a perfect waste of time.