Admission by Motion Picking up Steam

Published on: 
04/24/2013
The practice of law is one of the most immobile business sectors of the economy. Before they start to make a living as lawyers, law school graduates must pass the bar examination in their specific state and begin practice there (interesting exception: graduates from Wisconsin's two law schools, the University of Wisconsin and Marquette, can begin practice in that state without having taken the bar exam, but no one graduating in another state can). If a young lawyer has the opportunity to move to another state and practice, he must pass the bar exam there.

There is a way around this difficulty, however. It is called admission by motion, in which an experienced lawyer applies for admission to the state bar association of a new state "by motion," provided that the attorney has graduated from an accredited law school and has passed the bar in at least one state.

Admission by motion procedures now exist in about 40 jurisdictions, most of them requiring that a lawyer's previous state reciprocally allow the practice, although Massachusetts does not have such a requirement, according to the website http://barreciprocity.com. The American Bar Association estimates that more than 65,000 lawyers have used the procedure in the last 10 years, about half of them in Washington, D.C.

Notably, most of the states that allow admission by motion, including Massachusetts, require seven years of full-time practice in another jurisdiction, including five of the most recent seven years preceding application. That obviously restricts the lawyer who is new to practice and has the chance to move across state lines.

The situation is changing, though. In 2012, the ABA House of Delegates approved a revision to a model ethics rule that makes it easier for young lawyers to be admitted in new jurisdictions without taking the bar exam. That rule was formally referred to as Resolution 105E, the change to the ABA Model Rule for Admission by Motion.

As a result of the amendment, lawyers seeking to practice in a new jurisdiction through admission by motion need to have actively practiced law for only three of the past five years. An accompanying resolution passed by the House urges jurisdictions that have not adopted the model rule governing admission by motion to do so.

Ultimately, it will not be just young attorneys who benefit from this change, but solo or small-practice lawyers as well. When handling a matter in another state, large-firm lawyers typically need only engage local counsel in that state, if a member of the firm is not already admitted there. Small-firm lawyers have no such option, other than a pro hac vice admission for a single matter by the local court, which is never a guaranteed thing. Greater use of admission by motion could make the whole admission process more flexible.

Of course, the real solution to mobility is a national bar. It is improbable that 50 state bar associations would ever agree to the exact same rule change, and neither Congress nor any other authority would likely require it. However, reform could continue to come from within. The National Conference of Bar Examiners has created a Uniform Bar Exam (not accepted by all states) to standardize the exam process and allow test takers to transfer their scores across state lines.

Client demands and professional needs may continue to squeeze more flexibility out of bar associations.

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