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The legal profession embraces free market rules for others, but it tends to be less troubled by its own anti-competitive practices. A glaring example is the policy followed by 15 states, including Maryland, of denying admission to experienced attorneys from other states except upon written examination. Although they are dressed up as consumer protection measures, such policies are nothing more than anti-competitive barriers to entry. Maryland, for one, should change its policy, and D.C. lawyers can help bring this about. According to a recent American Bar Association study, the District of Columbia and 35 states, including Virginia, permit experienced attorneys to be admitted upon motion without examination. In general, the privilege is extended to lawyers who have practiced from five to 10 years and who have been admitted in another state after passing a written examination. Maryland is one of a minority of states that requires more. Rule 13 of the Maryland Court of Appeals, the state’s highest court, provides that attorneys who have practiced elsewhere must nonetheless pass a written examination before they will be admitted. Experienced attorneys � defined in Maryland to mean those who have practiced at least 10 years, including five out of the last 10 years � need not take the multistate examination and five-hour essay test given to recent law school graduates. Instead, experienced attorneys may elect to take an exam consisting of three hours of essay questions on Maryland ethics and procedure. Maryland’s approach could be called “liberal” in comparison to some other states’. That is, Rule 13 isn’t as onerous as the rules in 14 states, including Arizona, California, Florida, and Hawaii, which require experienced attorneys to take the same examination as recent law school graduates. MAJOR HURDLES But the Maryland rule hardly seems liberal to lawyers who want to shift their practices to Maryland. It raises three major hurdles. First is delay. Since the examination is given only twice a year, a lawyer who wants admission in Maryland may have to wait six months to take the exam and even longer before he is sworn in. Second is uncertainty. Although the pass rate on the experienced attorneys’ exam for 2004 was 92 percent (compared with 72 percent for the full exam), even the most experienced lawyers wanting to practice in Maryland cannot be sure if they will be admitted. Third is the need to take a review course. A person might be the best trust and estates or corporate lawyer in the country, but Maryland doesn’t test him on his expertise or, indeed, on anything except Maryland legal ethics and trial practice. The experienced attorneys’ examination is designed by the State Board of Bar Examiners and seems more like a game of Trivial Pursuit than a test of legal skills. This question and suggested answer were taken from the board’s Web site for the 2004 exam. They follow a hypothetical set of facts in which a suit for a declaratory ruling includes a request for a temporary restraining order: Q. What must [lawyer] Marcellus do procedurally to assure that his client’s motion for a temporary restraining order is heard by the court? Explain your answer fully. A. Because the action was improperly filed in the District Court counsel will need to file an action in the Circuit Court to hear the injunctive and declaratory claims pursuant to CJP �� 4-401 and 4-402. They must also comply with Rules 15-502-15-504 for filing a TRO. BARBARIANS AT THE GATE The reason Maryland tests out-of-state attorneys seems readily apparent � the huge number of lawyers just across the border in the District. The D.C. Bar counts 58,499 active members, of which 42,702 are within the metropolitan area. Maryland, with a far larger population, has only 32,000 lawyers in active practice, according to the Client Protection Fund of the Bar of Maryland. And whereas 2,908 new lawyers were admitted in the District last year, about half as many, 1,431, were admitted in Maryland. To the Maryland Bar, the horde of lawyers in the District must seem like barbarians at the gate, just waiting to enter and pillage the Maryland client base. So far, the entry barrier is working. Maryland admitted only 145 lawyers under Rule 13 last year. However, there is no entry barrier to admission to the D.C. Bar, and so 10,978 of active D.C. lawyers say they are also admitted in Maryland. This means that 34 percent of Maryland lawyers are also admitted in the District. Virginia follows the approach of the majority of states of admitting lawyers on motion, although few avail themselves of the privilege. An experienced D.C. lawyer who certifies an intent to practice in Virginia may be admitted on motion. The Virginia State Bar counts 25,452 active members, while D.C. Bar records show 7,752 of its members are also admitted in Virginia. This means that 30 percent of Virginia lawyers are admitted in the District. However, of the 1,822 lawyers admitted in Virginia in the last year, only 61 were admitted on motion. The American Bar Association wants all states to remove needless entry barriers to admission of experienced attorneys. An August 2002 ABA report explained: “For experienced lawyers, the bar examination therefore serves as an unnecessary obstacle to establishing a practice in the new state. This is particularly true because, with the advent of multi-state bar examinations, most bar examinations have become increasingly less distinctive and less focused on the idiosyncrasies of individual states’ law.” CONSUMER PROTECTION? Of course, many lawyers don’t think of bar admissions as entry barriers. Those who support rules like Maryland’s say that restrictive rules are needed to protect clients from unqualified lawyers. But it is hard to see how Maryland’s Rule 13 affords much protection to clients. An out-of-state lawyer who wants to practice there is tested on legal ethics. Yet Maryland has adopted the ABA’s Model Rules, and so its ethical standards differ little from those of other states. Experienced lawyers from the District, for example, should be as conversant about Maryland ethics as Maryland lawyers. As for the test on Maryland’s court rules, those obviously are different, but knowledge of them isn’t a prerequisite for practicing in Maryland. This becomes clear when the exam for novice lawyers is compared with the exam for experienced attorneys. The detailed procedural questions on the experienced-attorney exam are not found on the exam novices take. Subjecting only experienced attorneys to more-rigorous testing on this subject undermines any claim that there is a consumer protection purpose to the rule. Furthermore, Maryland does not mandate continuing legal education on court rules and so doesn’t seem to believe an expertise on this subject is fundamental to the practice of law. And as the August 2002 ABA report has noted, “There is nothing to suggest that in states with admission on motion, particular regulatory problems are disproportionately presented by lawyers who gain admission by this process.” But such arguments aside, competition is generally considered the best form of consumer protection. Competition means lower prices and better service to the consumer. This is true for the sale of apples, oranges, razor blades, food service, and cars. It is true for legal services as well. D.C. CAN HELP How strongly the Maryland Court of Appeals feels about the examination requirement of Rule 13 is uncertain. Professor Robert Rubinson of the University of Baltimore School of Law chairs the Section on Legal Education and Admission to the Bar of the voluntary Maryland State Bar Association. That section sometimes provides a first alert to the rules committee of the Court of Appeals about rule changes. In a telephone interview for this commentary, Rubinson said that his section hasn’t focused on the examination requirement. While a change in the rules is up to the court, Rubinson said a proposal to his section would be one way to start. Lawyers in the District clearly have an interest in bringing Rule 13 in line with the ABA’s recommendations. Those leaving government or tiring of administrative law practice in Washington often consider a complete change in their professional life by moving to practice in the suburbs. The same is true of D.C. lawyers who retire, but want to remain professionally active. And then there are new law school graduates for whom Rule 13 and its kin take on needless importance in choosing career paths. Lawyers interested in changing Rule 13 can help in several ways. They can make their views known to Rubinson’s section or to the rules committee of the Maryland Court of Appeals. The D.C. Bar itself could act on behalf of its members. Maryland lawyers might also take the initiative. D.C. Bar records show that 10,978 of its active members say they are also admitted in Maryland. This means that more than a third of Maryland lawyers are admitted in the District. As beneficiaries of the District’s liberal admission rules, perhaps they will return the favor. Entry barriers like Rule 13 hearken back to a different era when lawyers’ lives were more static, when the profession was less dynamic, and when Balkanization of the bar and divergence of state laws were considered virtues. Such barriers are inconsistent, however, with the needs of a modern economy. For Maryland, it is time to open the gates. James H. Johnston, a D.C. lawyer, is a frequent contributor to Legal Times. He may be contacted at [email protected].

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