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On Dec. 5, 2005, the Wall Street Journal reported that Kathleen Sullivan, the former dean of the Stanford Law School and a member of the bar in New York and Massachusetts, had failed the bar exam in California. She thus joins a long list of prestigious lawyers who have failed that exam and a much longer list of highly qualified practitioners who are denied the right to practice law outside of their states of admission. These cases point up the fact that, while technology makes our country, and indeed the world, smaller, and while bar leaders call for liberalization of interstate practice rules along the lines of the European Union, the practice of law in the United States is still by and large limited to the state of admission. This is true even as the profession experiences merger mania and law firms often have thousands of lawyers practicing out of offices in many of the major cities of the country and the world. Likewise, the in-house offices of the country’s multinationals are staffed by lawyers who are tethered to their states of admission. Even the lawyers who work for the federal government, most appearing exclusively in the federal courts of the nation, are covered by the limitation. While admission on a case-by-case basis is available in the sole discretion of a local court, and some states allow admission without exam, the rules vary from state to state, and local bar officials often jealously guard their prerogatives by prevailing upon the state supreme courts to restrict admission and to sanction unauthorized practice. Client-protection claim is faulty The stated rationale of protection of the client public just does not wash. An out-of-state lawyer who injures a client is subject to a malpractice action in local courts and subject to a local state’s disciplinary procedure whose findings would routinely be transmitted to the lawyer’s home state, which could impose additional sanctions. Indeed, in Birbrower v. Superior Court, 949 P.2d 1 (Calif. 1998), a leading case on unauthorized practice, the California Supreme Court irrationally ruled that a New York firm working for a California client committed unauthorized practice and thus forfeited its right to its fee, but only when its lawyers actually traveled to California to advise clients, and not when they advised those same clients on California law over the telephone or electronically from their New York office. The knowledge of local law rationale makes even less sense when the law practiced is federal, like income tax, intellectual property or, as in Sullivan’s case, constitutional law. Passing an additional bar exam proves very little; the detail memorized for the exam quickly fades away, and every good lawyer checks the detail of a rule or statute before taking action on behalf of a client. Indeed, the option of taking additional bar exams is a daunting task to those not fresh out of law school, or those who have not had the time to put the rest of their professional lives on hold to take a six- or 12-week bar review course and intensively study the minutiae of as many as 20 different subjects, most of which will be irrelevant to their practices. The American Bar Association has created a commission that has called for liberalization, and the American Corporate Counsel Association has called for state bar admission to be treated like a driver’s license-good in any state. But recommendations like these are often lost before state supreme courts that often think of the state bar association as their most relevant constituency. The Supreme Court has never applied the constitutional principles that protect interstate commerce or the freedom of workers to work in the state of their choice to these cases, deferring instead to local prerogatives. A simple and sensible solution would be for Congress to pre-empt a large part of the problem by enacting a statute that stated that a lawyer validly admitted in any of the 50 states is authorized to handle any matter affecting interstate commerce. Gerald J. Clark is a professor at Suffolk University Law School.

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