Right to Practice Law the

¶ … Right to Practice Law The law is a profession that closely guards its standards for admission, much like the professions of medicine and accounting. The creation of professional admission standards for practicing law is designed to reduce the likelihood of so-called 'professional failures' to meet client needs. Today, discrimination by state bar associations against protected categories of individuals is not permitted (including categories pertaining to an applicant's race, ethnicity, and gender). However, what constitutes an illegal barrier to admission to the bar has remained a subject of debate.

In general, the United States Supreme Court has tended to uphold an expansive definition of the right to practice law, in the interest of advancing the cause of justice in our society and because of the lack of compelling arguments to limit admission based upon barriers such as state residency. But the question as to whether the lawyer's right to practice and the state's right to protect client's interest should prevail remains.

To reduce competition in the state, states have a vested interest in limiting the ability to practice law within the state to residents. In 1995, the Seventh Circuit upheld an Indiana rule that required all lawyers who passed the bar in Indian to practice law for five years in-state, by representing Indiana residents. The dissenting opinion stated that this was an obvious protectionist stance rather designed to enhance the professional capabilities of lawyers in Indiana.

It did not improve the overall ability of lawyers to protect the rights of the clients they represented; it merely protected the interests of current Indiana lawyers by limiting competition. For many years, the state of New Hampshire enforced a law that prohibited the admission of nonresidents to the bar.

The law was justified by the idea that a nonresident was less likely to be familiar with current state law, to behave ethically, to be available for court proceedings, and to do pro bono and charity work and thus it was in the interest of the client that only residents were admitted to the bar.

The ability to practice law, much like assuming a professional license to fish, was not considered a fundamental right, based upon the argument that a lawyer had the power to perform many actions an ordinary citizen did not have the right to do. In The Supreme Court of New Hampshire v.

Piper (1984), Katherine Piper, a resident of Vermont living about 400 yards from the New Hampshire border who had passed the New Hampshire bar exam, argued that because of the role lawyers play in the national economy under the Privileges and Immunities clause New Hampshire's prohibition was invalid and she should be allowed practice law. New Hampshire argued that limiting the right to practice law ensured that a client would not receive incompetent representation. The U.S.

Supreme Court found in favor of Piper, stating: "there is no evidence to support appellant's claim that nonresidents might be less likely to keep abreast of local rules and procedures. Nor may we assume that a nonresident lawyer -- any more than a resident -- would disserve his clients by failing to familiarize himself with the rules.

As a practical matter, we think that unless a lawyer has, or anticipates, a considerable practice in the New Hampshire courts, he would be unlikely to take the bar examination and pay the annual dues of $125." The U.S. Supreme Court decided similarly in the Supreme Court of Virginia v. Friedman, when it struck down a requirement in Virginia barring non-residents from even taking the exam. The defendant, a Maryland resident, already had a full-time job in Virginia.

The court found: "If a state denies non-residents such a privilege, it must have a substantial justification for the difference in treatment that substantially relates to the state's objective in correcting the problem. The practice of law, like other occupations, is sufficiently basic to the national economy to be deemed a privilege protected by the Clause.

Although Virginia did not totally exclude nonresidents from practicing in the State that does not mean its rule is beyond the reach of the Privileges and Immunities Clause." The rights of the state, the rights of the client to competent representation, and the rights of the prospective lawyer must all be weighed when deciding whether certain restrictions to practice law are valid or invalid. Rules limiting admission to the bar only to graduates of accredited law schools have been upheld (Gillers 2009: 553).

Similarly, the need for attorneys to possess a good moral character is a stated provision of many states' bar exams. Journalists who fabricated stories and law applicants who mishandled funds have not been accepted to the bar, even after passing the qualifying exams in New York and Washington D.C., respectively (Gillers 2009: 553). A final note regarding this issue is manifested in the question of the right to gain admission to an accredited law school in the first place. A blind prospective law school student in Michigan is currently suing the.