ABA’s Issue Paper on Admission by Motion: Impact on Women Lawyers

I’ve been so busy covering the ABA Commission on Ethics 20/20 initiatives on ethics of lawyer use of social media for marketing and confidentiality concerns regarding lawyer use of technology that I just about overlooked the other initiatives that continue to emerge. For example, on December 2, 2010, the ABA’s released an issues paper on a seemingly under-the-radar issue, ABA Model Rule on Admission by Motion. Initially, I didn’t even give the paper a glance because the topic seemed so administrative and dull. But recently, I’ve been reviewing various state procedures for gaining admission to different bars, and realized how these regulations have the potential to adversely impact solo and small firm lawyers, particularly those (mostly women) who come to solo practice after having taken time off to raise children.

At a multi-national firm, a lawyer who’s admitted in only one state can easily find a lawyer in another jurisdiction to serve as local counsel. Not so for solos, who rely only on themselves. This can prove problematic with solos who are barred and work in one state, but live in another. Trouble is, most of these border states have the most rigorous admissions requirements. In my neck of the woods – the DC, Virginia and Maryland area – Maryland only allows admission to solos who’ve taken the practitioners’ exam (a shortened version of the bar), and to qualify, they need to show they’ve been in practice full time for ten years, with at least five of those years immediately preceding admission. Moreover, Maryland is fairly strict about allowing non-barred lawyers work from home offices on out-of-state matters, so, for example, a DC lawyer who leaves or is fired from a big firm and goes home to Maryland to work part time on DC matters would run into problems.

Virginia is not better. Virginia requires those seeking admission by motion to rent an office in Virginia and state that they will focus mostly on Virginia practice. That’s a fairly high barrier to entry, particularly the office requirement.

The bottom line: any big firm in DC can cover the tri-state area because they’ve got lawyers from all three jurisdictions on staff. It’s much harder for a solo practitioner to do the same, and thus, the solo may be at a competitive disadvantage for certain cases.

But the bigger problem with admission by motion is of course, that it discriminates against those who take time off from the law to raise a family, a group comprised disproportionately of women. Most of the states that allow admission by motion require seven years of full time practice in another jurisdiction, including five of the most recent years preceding application. So a female attorney who practices at a DC firm for a decade and works on Maryland issues in the process, then leaves and spends five years home with her kids in Maryland, and then wants to ramp up by working from home could not take the practitioner’s bar in Maryland. Moreover, even if the lawyer kept up her skills via CLE, writing a blog on legal issues or handling a pro bono matter here and there, she still wouldn’t be able to meet the practitioner’s requirements for admission.

Obviously, none of these rules are about protecting consumers. A lawyer who’s worked for a long time, then takes a respite from practice is still going to be far more competent than a newbie who sits for a full bar exam and gets admitted. This is all about bars protecting their turf by limiting the ability of qualified practitioners to come into the state and serve clients.

Let’s just eliminate these jurisdictional boundaries once and for all. If someone wants to seek admission by motion, let them go through the admissions process and pay the fees, but why not simply have universal reciprocity?

What do you think?