Wednesday, November 2, 2011
Lawyers Admitted Out of State Sue for Right to Practice Here
By SHERRI M. OKAMOTO, Staff Writer
A Los Angeles-based group of attorneys licensed in other states who want to practice in California without bar admission has filed suit against the California Supreme Court seeking the invalidation of the state’s rules barring them from doing so.
Joseph Giannini, director of the National Association for the Advancement of Multijurisdiction Practice, insisted yesterday that “one bar exam is more than enough,” and that “there is no reason why attorneys in all states shouldn’t be provided equal treatment.”
His group, and seven attorneys who are licensed to practice in other states but have been denied admission to the California State Bar, filed a complaint in the U. S. District Court for the Northern District of California on Oct. 13. Giannini said the defendants have 60 days to respond, but that he believes “our arguments are unanswerable.”
Practice in Other States
Giannini emphasized that over 65,000 lawyers have been admitted on motion in 39 other states during the past decade, and estimated that “thousands of people” are being injured by California’s rules preventing them from being able to practice here without passing the General Bar Examination, or the shorter attorney exam.
The complaint asserts that the purpose of a bar exam “is to protect the public against risks that would be posed by lawyers who lack the knowledge and skills expected of entry-level practitioners,” so experienced practitioners should not need to “reinvent the wheel” by taking another exam to protect the public and practice in another state.
“[I]f by law, a layman is presumed to know the law, or can presumptively find it, and is presumptively capable of representing herself—a fortiori an experienced licensed attorney can do the same,” the complaint says.
California’s rules, the complaint argues, violate the Privileges and Immunities Clause, Commerce Clause, Due Process, and 42 U.S.C. § 1983. NAAMJP also contends its First Amendment rights are being violated because the licensing rules limit its ability to associate with and engage the attorneys of its choice.
ABA Commission Recommendation
The complaint requests that the California Supreme Court adopt the American Bar Association 20/20 Commission’s recommendation that all attorneys with three years of experience be provided full admission on motion without taking another bar exam, and that every registered in-house counsel and legal services attorneys be converted to full licensure.
Giannini, a member of the Pennsylvania and New Jersey bars, has battled for more than two decades on behalf of non-California lawyers living in the state. He was the losing party in Giannini v. Real, 911 F.2d 354 (9th Cir. 1990), which upheld the Central District of California’s requirement that attorneys practicing before it be members of the State Bar of California.
He also represented the losing party in a Ninth Circuit case holding that the U.S. District Court for the Northern District of California may limit membership on its Criminal Justice Act panel to members of the State Bar, even though out-of-state lawyers were allowed admission to the district bar up until 1995, and those admitted before then are grandfathered in and do not have to obtain State Bar admission to practice in the court.
The issue of multijurisdictional practice was the subject of intense study by the State Bar within the past decade. The current rules, adopted in 2004, were adopted under pressure from some state lawmakers who favored admission on motion for lawyers with three years’ membership in another state’s bar.
Under the compromise approved by the Supreme Court, registered in-house counsel and registered legal services attorneys may practice here to a limited extent and under the supervision of a State Bar member.
The case is NAAMJP v. California Supreme Court, 11-5046.
Copyright 2011, Metropolitan News Company