Courts

Petition Asks Supreme Court To Topple Bar Exam As We Know It

The exam is indirectly used by some federal courts to limit access. Some people want that to change.

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While the battle for licensing reform wages primarily at the state government level, a group of lawyers elevated the issue to the federal courts and now seek the attention of the United States Supreme Court to strike a blow against archaic licensing requirements around the country.

The folks at Lawyers United, Inc. filed a cert petition taking aim at the state-based lawyer licensing process. Specifically, the filing asks the Supreme Court to clamp down on the varied and conflicting local rules employed by federal district courts, some of which deny admission without attorneys first getting a license in the state. So, at the risk of robbing the argument of some of its nuance, all lawyers should be treated equally in federal courts.

If a citizen from California sues a citizen from Florida on a federal claim in federal court, the Florida citizen or corporation is also a party. If the first to file or venue is in California, it is arbitrary and irrational to compel the Florida citizen to hire a California lawyer. Likewise, if venue is in Florida, it is equally arbitrary to compel the California citizen to hire a Florida lawyer on the identical federal claims. The same holds true on jurisdiction based on diversity. Diversity claims are also governed by the Federal Rules of Civil Procedure. The purpose of diversity jurisdiction is to provide a neutral forum. That purpose is defeated by the Local Rule reliance on forum state law on both federal and diversity claims in two-thirds of the district courts.

There’s not much value to forcing attorneys to retake a state bar exam just to appear in a federal district court. It’s even screwier if one imagines a case that ends up governed by another state’s substantive law anyway. Throw in the fact that states like California notoriously fail experienced attorneys and the requirement that attorneys get admitted to the local bar to represent their clients feels even more protectionist.

Winning this case wouldn’t necessarily end the bar exam, but it would radically shift its role. Established attorneys would no longer be forced by federal courts to retake bar exams and attorneys with federal-centric practices could find themselves freed up to relocate or actively market themselves as cross-border federal attorneys. And if the federal courts are unmoored from state licensing, it’s not hard to imagine pressure on local licensing authorities to get out of the protectionism business altogether. Because parochial licensing requirements are hard to justify already given that the test is mostly generic and nationalized, and to the extent state law is nuanced, it only diverges in minor ways that any competent attorney would research before issuing advice anyway.

That said, the petition isn’t without its issues. Arguing that attorneys deserve equal standing drifts into comparing lawyer access to marriage equality and the battle against segregation which… might be a bit too zealous. Lawyers are important, but they’re not that important. It also focuses — because it knows its SCOTUS audience — on questioning the character and fitness process by drawing parallels with the confirmation process for Kavanaugh and Thomas, a comparison that says more about how the Senate should move up to the level of scrutiny state bars employ rather than the opposite.

Still, an effort to unsettle the power of state licensing authorities to drag attorneys through the wringer is a welcome development because there is no good reason why individual federal district courts boast different admission requirements that disproportionately impact attorneys. And if we have to compare licensing to crushing unions or allowing limitless corporate corruption to get this Court’s attention, it is what it is.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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