ABA Model Rule on Admission by Motion
1. An applicant who meets the requirements of (a) through (g) of this Rule may, upon motion, be admitted to the practice of law in this jurisdiction. The applicant shall:
(a) have been admitted to practice law in another state, territory, or the District of Columbia and currently hold an active license to practice law in at least one state, territory or the District of Columbia;
(b) hold a J.D. or LL.B. degree from a law school approved by the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association at the time the applicant matriculated or graduated;
(c) have been primarily engaged in the active practice of law in one or more states, territories or the District of Columbia for five three of the seven years immediately preceding the date upon which the application is filed;
(d) establish that the applicant is currently a member in good standing in all jurisdictions where admitted;
(e) establish that the applicant is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any jurisdiction;
(f) establish that the applicant possesses the character and fitness to practice law in this jurisdiction; and
(g) designate the Clerk of the jurisdiction’s highest court for service of process.
2. For purposes of this rRule, the “active practice of law” shall include the following activities, if performed in a jurisdiction in which the applicant is admitted and authorized to practice, or if performed in a jurisdiction that affirmatively permits such activity by a lawyer not admitted in that jurisdiction; however, in no event shall any activities that were performed pursuant to the Model Rule on Practice Pending Admission or in advance of bar admission in some state, territory, or the District of Columbia be accepted toward the durational requirement:
(a) Representation of one or more clients in the private practice of law;
(b) Service as a lawyer with a local, state, territorial or federal agency, including military service;
(c) Teaching law at a law school approved by the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association;
(d) Service as a judge in a federal, state, territorial or local court of record;
(e) Service as a judicial law clerk; or
(f) Service as in-house counsel provided to the lawyer’s employer or its organizational affiliates.
1. For purposes of this rRule, the active practice of law shall not include work that, as undertaken, constituted the unauthorized practice of law in the jurisdiction in which it was performed or in the jurisdiction in which the clients receiving the unauthorized services were located.
2. An applicant who has failed a bar examination administered in this jurisdiction within five years of the date of filing an application under this rRule shall not be eligible for admission on motion.
FURTHER RESOLVED, That the American Bar Association urges jurisdictions that have not adopted the Model Rule on Admission by Motion to do so and urges jurisdictions that have adopted admission by motion procedures to eliminate any restrictions that do not appear in the Model Rule on Admission by Motion.
The Commission's Explanation for the Proposal
In light of the Commission’s findings and changes in the practice of law during the last decade, the Commission proposes to reduce the length-of-practice requirement in the Model Rule for Admission by Motion. The current Model Rule requires an applicant for admission by motion to have actively practiced in another jurisdiction for five out of the past seven years, and the Commission is proposing to allow lawyers to qualify for admission by motion after practicing in another jurisdiction for only three out of the past seven years.
The Commission believes this change responds to client needs and market demands in an increasingly borderless world, where lawyers frequently need to gain admission in other U.S. jurisdictions. For example, lawyers regularly need to move to, or establish a regular practice in, another jurisdiction in order to serve clients who are relocating or who regularly do business in the jurisdiction in which motion admission is sought. The Commission’s proposal would address this need, thus benefitting both lawyers and their clients.
The proposal also recognizes that lawyers often need to move to new jurisdictions for a wide range of personal reasons, including the need to find employment. The Commission determined that a reduction of the active practice requirement from five to three years would have particularly salutary effects for less senior lawyers, who are most likely to need to move from one jurisdiction to another. The challenging legal employment marketplace only increases the likelihood that relatively junior lawyers will need to move to a new jurisdiction in search of employment.
The Commission seriously considered several possible arguments against reducing the time-in-practice requirement of the Rule. First, the Commission considered the concern that a lawyer who has practiced for only three years may not be sufficiently competent to practice law in a new jurisdiction. The Commission, however, found no reason to believe that lawyers who have been engaged in the active practice of law for three of the last seven years will be any less able to practice law in a new jurisdiction than a law school graduate who recently passed the bar examination in that jurisdiction. In fact, five jurisdictions already have a reduced duration-of-practice requirement of three years,[1] and none of those jurisdictions have reported any resulting problems.
The Commission also found unpersuasive the concern that passage of the bar examination is necessary to demonstrate knowledge of the law of the jurisdiction in which the lawyer is seeking admission. As explained above, more than 65,000 lawyers have obtained admission by motion in the last ten years, and there is no evidence from disciplinary counsel or any other source that these lawyers have been unable to practice competently in the new jurisdiction or have been unable to identify and understand aspects of the new jurisdiction’s law that differ from the law of the jurisdiction where those lawyers were originally admitted.
The Commission also concluded that the “local law” concern rests on the incorrect assumption that passage of the bar examination demonstrates competence in local law. The Commission’s research revealed that approximately half of U.S. jurisdictions do not test knowledge of local law on the bar examination.[2] And in jurisdictions that do test local law, the local law portion of the test is usually sufficiently small that bar passage does not turn on it. Thus, the majority of bar examinations require either limited knowledge of local law or none at all, suggesting that passage of the bar examination does not offer better evidence of a lawyer’s understanding of local law than three years of practice in another jurisdiction. To the contrary, the Commission concluded that three years of practice in another jurisdiction may actually enable a lawyer to identify and understand variations in the law more easily than a recent law school graduate who has never practiced at all but has passed the jurisdiction’s bar examination.
Another possible concern that the Commission considered is that lawyers might take and pass the bar examination in a jurisdiction with a relatively high passage rate and then seek admission by motion in a jurisdiction that has more demanding examination requirements. The Commission concluded, however, that the three year waiting period is sufficiently long that lawyers would not have an incentive to circumvent the bar examination requirements of a jurisdiction with a relatively low bar pass rate. Lawyers who intend to practice in a jurisdiction with a bar examination that is difficult to pass are not likely to defer the start of their careers in that jurisdiction for three years in order to take advantage of an admission by motion procedure.
Finally, the Commission considered reducing from seven to five years the time within which a lawyer must fulfill the three year practice requirement. The Commission concluded, however, that the career tracks of modern lawyers are not always linear and that lawyers, both male and female, frequently need to take time away from the practice of law due to changes in personal circumstances, including changes in substantive employment, military service, returning to school for another degree or, an issue that continues to disproportionately affect women, family care. Thus, the Commission determined that a lawyer seeking admission by motion should be able to fulfill the three year practice requirement within the existing seven year time period.
The Commission concluded that Section 2 of the Model Rule on Admission by Motion should state that the time spent practicing pursuant to the proposed new Model Rule on Practice Pending Admission should not count toward the period of time necessary to qualify for admission by motion. (The proposed new Model Rule on Practice Pending Admission would allow lawyers to establish a law practice in another jurisdiction while diligently pursuing admission in that jurisdiction through one of the recognized forms of admission, such as through admission by motion.) The Commission determined that this restriction in Section 2 is a necessary additional client protection as it will prevent lawyers from establishing a practice in a new jurisdiction in fewer than three years and prevent lawyers from serially relocating to new jurisdictions under the Model Rule on Practice Pending Admission in order to accumulate the necessary practice experience to qualify for admission by motion.
In sum, the Commission determined that, in most jurisdictions, a lengthy practice requirement unnecessarily hinders the lawyer mobility that clients and those who employ lawyers increasingly demand. Although the Commission recognizes that some jurisdictions may have particular needs that warrant a longer or shorter durational requirement, the Commission concluded that the vast majority of jurisdictions would benefit from the proposed approach.
Implementation of ABA Model Rule on Admission by Motion Rule
The Commission concluded that the widespread adoption of admission by motion procedures is a positive development, but also found that at a number of jurisdictions have not yet adopted an admission by motion process or have adopted a process that imposes unnecessary restrictions and requirements. Thus, in addition to proposing the amendments described above, the Commission also urges the eleven jurisdictions that have not adopted the Model Rule to do so and urges jurisdictions with admission by motion procedures to eliminate any restrictions, such as reciprocity requirements, that do not appear in the Model Rule.
With regard to the eleven jurisdictions that have not adopted any admission by motion procedure, those jurisdictions require lawyers to take at least some portion of the jurisdiction’s bar examination (or a special lawyers’ examination) in order to gain admission. The Commission concluded that such a requirement is unnecessary for lawyers who have three years of experience and that these jurisdictions should adopt an admission by motion procedure.
With regard to the forty jurisdictions that have adopted an admission by motion procedure, ten have an admission by motion procedure that is nearly identical to the Model Rule.[3] The other thirty jurisdictions, however, have procedures that impose restrictions beyond those contained in the Model Rule. More than half of these jurisdictions have some type of reciprocity requirement, which makes admission by motion possible only for lawyers from states that also offer admission by motion on a reciprocal basis.[4] Moreover, some jurisdictions define law practice in a manner that is narrower than the Model Rule definition.[5] Other jurisdictions require lawyers to certify that they intend to practice actively and maintain an office in the state where admission by motion is being sought.[6]
The Commission found no evidence that these more restrictive approaches are related in any way to the competence of the applicants or the protection of the public. Indeed, jurisdictions that have adopted the Model Rule without any additional restrictions have reported no problems. The Commission believes that such varied additional restrictions only serve to sustain outdated and parochial purposes at a time when the relevance of borders to the competent practice of law has and will continue to erode. The Commission believes that the Model Rule on Admission by Motion ensures competent representation and amply protects the integrity of the bar.
[1]http://www.americanbar.org/content/dam/aba/migrated/cpr/mjp/admission_motion_comp.authcheckdam.pdf
[2] Nat’l Conference of Bar Exam’rs & Am. Bar Ass’n Section of Legal Education & Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 2011, at 32-34 (available at http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/2011_CompGuide.pdf)
[3] A comparison chart is available here: http://www.americanbar.org/content/dam/aba/migrated/cpr/mjp/admission_motion_comp.authcheckdam.pdf
[4] Id.
[5] Id.
[6] Id.