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Admission to the Bar

From lawbrain.com

The procedure that governs the authorization of attorneys to practice law before the state and federal courts.

Statutes, rules, and regulations governing admission to practice law have been enacted to protect the public interest, in terms of preventing the victimization of clients by incompetent practitioners. The courts have inherent power to promulgate reasonable rules and regulations for admission to the bar. Although this authority is vested exclusively in the courts, the legislature can, subject to constitutional limitations, issue reasonable rules and regulations governing bar admission provided they do not conflict with judicial pronouncements.

The highest state court administers the admission of applicants to the state bar, usually requiring successful completion of a bar examination and evidence of good moral character. With respect to admission to the federal bar, federal district courts are empowered to issue requirements for admission separately from those of the state courts. If, however, a federal district court, pursuant to a rule, derivatively admits to its bar those admitted to the state bar, it cannot arbitrarily deny admission to an applicant who is a member in good standing of the state bar. In most instances, the federal district courts have considerable latitude in establishing requirements for admission to practice before them, but their rules must not contravene federal law.

In terms of the federal bar, an attorney is also eligible for admission to the bar of a court of appeals, if he or she has been admitted to practice before the Supreme Court or the highest court of a state or another federal court and if the lawyer is of good moral and professional character. The attorney must comply with the procedural requirements and take and subscribe to the following oath: "I, [name], do solemnly swear (or affirm) that I will demean myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States."

In order to gain admission to the bar of the Supreme Court, an attorney must have practiced for three years in the highest court of a state, territory, district, commonwealth, or possession. The person must be of good character in terms of both his or her private and professional lives and complete the specified procedures, including taking or subscribing the following oath: "I, [name], do solemnly swear (or affirm) that as an attorney and as a counselor of this court I will conduct myself uprightly, and according to law, and that I will support the Constitution of the United States."

In some instances, a particular board is empowered to promulgate rules pertaining to applicants seeking to practice before it as attorneys. For example, the securities and exchange commission has implied authority under its general statutory power to determine qualifications for attorneys practicing before it. Under federal law, the Commissioner of Patents and Trademarks, subject to the approval of the secretary of commerce, can promulgate regulations governing the recognition and conduct of attorneys appearing before the patent and trademark office.

Qualifications for admission to the bar must be rationally related to the applicant's fitness to practice law; therefore, a state cannot prevent a person from practicing law for racial, political, or religious reasons. Good moral character is a prerequisite to the right to admission to practice law and, at a minimum, consists of honesty. Lack of good moral character is demonstrated by an immutable dishonest and corrupt nature and not in radical political beliefs or membership in lawful but controversial political parties.

In regard to the effect of criminal conduct upon the evaluation of an applicant's character, a conviction for the commission of a felony is not, per se, sufficient to demonstrate a lack of good moral character. It will be incumbent upon the applicant, however, to prove complete rehabilitation. Although a conditional pardon is insufficient to remove objections to bar admission, a felony conviction will not prevent an applicant from practicing law if he or she has received a full pardon and is otherwise qualified.

Misdemeanor convictions do not necessarily result in a finding of lack of good moral character, but mere conduct that does not culminate in a conviction might present an insurmountable obstacle to admission if it indicates a lack of moral fitness. In some cases, an applicant has been rejected for want of good moral character because he or she has made false statements or concealed material facts in the application for admission or in other legal documents. In other cases, the withholding or falsification on the application of minor matters has been viewed as of no effect on an evaluation of character; the same principle applies to unintentional concealment of information.

Admission to the bar cannot be denied because the applicant is not a United States citizen, but the states can impose reasonable residency requirements upon all applicants prior to, or during, the time a license is sought. This requirement enables the state examining authority to investigate the character of the applicant, but it must be rationally related to the attainment of this objective. While a majority of states have some form of residency requirement for admission to the bar, the emerging trend is to nullify durational residency requirements that mandate that an attorney live in a state for a prescribed period as a prerequisite to certification to practice law.

Applicants for admission to practice law must take a bar examination, unless they are


exempted from this requirement by statute or court rule. In 2002, 73,065 applicants took a bar examination; 45,883, or 63 percent, passed. The examination can be taken more than once. In rare cases, an attorney who has been disbarred or suspended can take a special bar examination for reinstatement. In 2002, only 26 disbarred or suspended U.S. attorneys took a reinstatement exam (15 passed).

Attorneys from other states can be admitted to practice in the state without examination upon providing the required proof of practice in another state that has reciprocity provisions, pursuant to which an attorney licensed in one state can be admitted to the bar of another state, if the first state grants reciprocal rights to attorneys admitted to practice in the other state. Under the device of pro hac vice, an attorney can be admitted to practice in a jurisdiction without having to take the bar examination, but only on a limited basis and only for a particular case. Such an attorney must be a member of a bar in good standing of other states or countries.

In order to practice law, an attorney must obtain a certificate or license, which is a privilege rather than a property right. Attorneys must also comply with the court rules or statutes governing the registration system, which is used to maintain a current list of all attorneys authorized to practice law in the state. Generally, admission by court order constitutes sufficient registration, but in some states, attorneys sign the roll or file a certificate with the clerk of the court to establish that they have been duly admitted to practice.

An applicant for admission to the bar is entitled to notice of, and a hearing on, the grounds for rejection either before the committee on character and fitness or the court. The courts can review the decision of bar examiners who deny an applicant admission to the bar, and the courts can ascertain whether the examiners acted after a fair investigation and hearing, exercised their discretion impartially and reasonably, and conducted their proceedings in compliance with the requirements of procedural due process.

The legal profession has tried in recent years to diversify the population of attorneys by recruiting more women and minorities. First-year law student statistics compiled by the American Bar Association show that for the 2002–2003 academic year, out of 48,433 students, 23,587 (roughly 49 percent) were women. Minority enrollment is considerably less; first-year enrollment for 2002–2003 of students from all racial minorities was 10,229.

Further Readings

American Bar Association. 2003. Available online at <http://www.abanet.org> (accessed October 13, 2003).

Glen, Kristin Booth. 2002. "When and Where We Enter: Rethinking Admission to the Legal Profession." Columbia Law Review 102 (October): 1696–1740.

Moeser, Erica. 2002. "Bar Admission in the United States 2001: Framing the Discussion for Response to Globalization." South Texas Law Review 43 (spring): 499–505.

National Conference of Bar Examiners. 2003. Available online at <http://www.ncbex.org> (accessed October 13, 2003).

Ritter, Matthew A. 2002. "The Ethics of Moral Character Determination: An Indeterminate Ethical Reflection Upon Bar Admissions." California Western Law Review 39 (fall): 1–52.

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