[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?