The Legal Profession Behind Bars: A Balanced Approach to Reforming the Bar Exam and Multijurisdictional Legal Practice

Stephanie A. Nadler, Emory University

Abstract

At one time there may have been sound reasons for confining a lawyer’s skills and practice to a particular state. But in today’s legal market, that practice is antiquated. This paper will argue that the current state-centered system of legal practice in the United States operates inefficiently, and, due in part to the evolving transnational legal environment, the system requires reform at the national level. While one may expect to find that a particular state competes for applicants to take the bar exam or for attorneys to practice in that state, such competition does not exist. In fact, the current rules regarding bar admissions and multistate practice are severely anticompetitive.

While there may have been plausible reasons in the past for individual states to have control over lawyers, that practice is antiquated in today’s transnational legal environment. Today, law is conducted across localities, across states, across continents, and across the world. It is a very rare occurrence that a lawyer will encounter only one locality’s legal system throughout his career, so why should the measure of the lawyer’s competence be confined to practice at the state level? Further, attorneys who work for corporations or for the federal government can continue to practice law in any state, regardless of where that attorney is licensed. Is the practice of a federal attorney really so unique that we should permit her to have a multijurisdictional practice, whereas a corporate attorney at a multinational law firm should not have the same opportunity?

Legal practice is already trending toward nationalization. Nearly every state requires those sitting for the bar exam to pass the Multistate Bar Examination and Multistate Professional Responsibility Examination. Further, most states utilize the National Conference of Bar Examiners (“NCBE”) to determine applicants’ character to be considered for admittance to the bar exam. While a full-scale national bar may not be immediately feasible or desirable, due in large part to the variance among local laws and the resistance of states to concede power to a national body, reforms to the current system are necessary.

In this paper, I propose the “Balanced Approach” to reform, as it suggests reforms for both bar admission and legal practice, and in each of those areas, I suggest reforms at both the state and national level. I retain some elements of state control for a variety of reasons. The first reason is practical: if states are not allowed to exercise some control over legal practice in their states, they will not choose to implement such a system. Second, having a dual system guarantees that the current system will not be replaced with another undesirable system. Similarly, allowing the states to implement some of their own rules will allow for innovation at the state level, and will allow for a “race to the top” resulting from state competition. The Balanced Approached also alters the current multijurisdictional practice rules to create more streamlined rules so that attorneys can more easily engage in interstate practice.