One Bar Admission To Rule Them All?
How a proposed Rule 5.5 amendment could revolutionize your practice.
My family took a road trip last summer, and it went how road trips usually go. We left Phoenix driving eastward until we got to the border of New Mexico, where we picked up someone with a New Mexico driver’s license to sit in the passenger seat while I continued driving. We continued to the Texas border, where we swapped our passenger out for a Texas-licensed passenger to sit shotgun, and so on and so forth until we got to our destination.
It may seem burdensome, but hey, I’m only licensed to drive by the state of Arizona. Other states have their own traffic regulations that I can’t be expected to navigate safely without a local expert providing me guidance. It may be inconvenient and expensive to hire all those extra bodies, but it’s the only way to make sure the practice of driving safely and without injuring others.
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Thankfully, that’s not how driving works in this country. My driver’s license may have been issued under Arizona’s rules and regulations, but it’s a valid license in every state of the union. All those other states have their own individual variations on the rules of the road, but the basics of driving are similar enough everywhere that we permit people to figure out state nuances.
Licenses to practice law aren’t as all-purpose as a license to drive a vehicle. But if one major legal association gets its way, they’ll start looking a lot more similar.
After several years of research, discussion, and drafting, the Association of Professional Responsibility Lawyers (APRL) published an open letter to the ABA late last month proposing significant changes to Model Rule 5.5, governing the unauthorized practice of law. If adopted, the new Rule 5.5 would permit a lawyer admitted anywhere in the United States to provide legal services in any jurisdiction that has adopted the new rule, without regard to physical presence, state licensure, or any other geographic factor. One of the longest-lived protective guardrails in the history of American law would be largely dismantled.
Now before your lawyer instincts kick in and you start trying to shoot holes in the proposal, it might be worth taking time to consider the basis for APRL’s recommendation.
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Break The Walls Down
The current ABA Model Rules are rooted in many 20th-century assumptions that don’t hold true anymore. The first rules and statutes prohibiting the unauthorized practice of law (UPL) were adopted a century ago and have been tweaked along the way, most recently in 2002 for Rule 5.5.
The practice of law looks drastically different today than it did even a decade ago — particularly after the forced modernization of our industry caused by COVID-19. Remote practice has gone from novel luxury to total normalcy. A Nebraska-licensed attorney vacationing in Hawaii might have a Zoom call with a client living in Maryland who works for a company based in Michigan to consult on an issue at an Ohio job site. That’s 21st-century legal practice. Clients and attorneys shouldn’t have to spend half an hour of their Zoom call to figure out if the attorney is allowed to provide advice on the topic.
The original rules against UPL had two practical purposes: protecting the public from bad lawyering and protecting lawyers from out-of-state competition. For as labyrinthine as the law has grown in the past century, I’d argue that it’s the easiest it’s ever been for a lawyer to develop the competence necessary to represent a client ethically and effectively. We don’t need to head down to musty law libraries to browse KeyCite digests and mimeograph statutes anymore. With Westlaw, Lexis, Fastcase, and the many research platforms available, all the tools for a deep understanding of the nuances of an individual state’s corpus of law are a few keystrokes and hours of study away.
The law is also in many ways more uniform across states than it’s ever been. The Restatements have been deeply influential across the country, and many states have adopted myriad Uniform Statutes. Learning another state’s take on at topic is more often about learning variations on themes than it is understanding an entire separate framework. Substantive differences in law are fewer, and procedural differences are less harrowing than they’ve ever been.
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Importantly, adopting the proposed Rule 5.5 wouldn’t mean the legal market becomes a complete free-for-all. The basic rules of competency and diligence remain in place regardless of where you are or where you practice. Lawyers would need to affirmatively disclose where they’re admitted to the bar, and thus by implication disclose if they’re not admitted in the state they’re seeking to practice. And don’t throw away your pro hac vice application forms just yet because the courts would also retain dominion over who they permit to appear before them. You might still be picking up that local passenger to ride shotgun with you as your litigation practice crosses state lines. And let’s not forget that, if you do make a state-specific mistake, clients retain the right to sue you for malpractice — a fact that offers opportunity for redress and deters lawyers from totally whiffing it.
The Genie Doesn’t Go Back Into The Bottle
Let’s face it, this collapsing of borders is already happening. Consider the Uniform Bar Examination, which is currently adopted in 37 states. The law we have to study to actually get admitted to any individual jurisdiction is increasingly the same. What’s more, many states have, for years, allowed established attorneys the ability to waive into other state bars on motion alone, without taking the bar exam again. And this model isn’t without precedent. CPAs take a single national exam for their certification that’s been administered for over 100 years, and APRL specifically cited the national driver’s license model in their arguments supporting the new proposed Rule 5.5.
If protecting the public from bad lawyering is no longer a strong rationale for our existing UPL framework, the only justification we’re left with is protecting attorneys from competition. Given the access to justice problems we’re already trying to deal with, this seems to be prioritizing lawyers’ interests ahead of those of the public. Wealthy clients want the best counsel for their needs, no matter where that counsel happens to live and practice. Working-class clients just want an attorney they can afford to see them through the biggest challenges in their life. In both instances, expanding the pool of attorneys is a positive.
Every step our industry takes toward the modern world is a step in the right direction. The proposal makes sense conceptually and from a business standpoint. Reducing artificial barriers to practicing law may invite competition to come into our home states, but it also allows each of us to go out and offer our services to compete on a national scale. For the sake of our clients, and the sake of ourselves, let’s move forward and stop pretending the world ends at the state line.
James Goodnow is the CEO and managing partner of NLJ 250 firm Fennemore Craig. At age 36, he became the youngest known chief executive of a large law firm in the U.S. He holds his JD from Harvard Law School and dual business management certificates from MIT. He’s currently attending the Cambridge University Judge Business School (U.K.), where he’s working toward a master’s degree in entrepreneurship. James is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at [email protected].
