The Pros and Cons of Multiple Bar Admissions

The Pros and Cons of Multiple Bar Admissions
Roni Elias

Introduction
As law students approach graduation and consider how to start their careers as practicing lawyers, one question they must answer concerns where to seek admission to the bar. In important ways, this question involves considerations about how lawyers should market their services. Like any other business professional, lawyers seek to expand the market in which they can offer their services. One obvious way to expand the size of a market is to do so geographically. For many lawyers, especially those who might reside or base their practice near a state border, this can mean practicing in more than one state. For others, particularly those who work in highly specialized substantive law areas, this can mean building a practice that serves a region rather than a single state.

Practicing in more than one jurisdiction has its advantages and disadvantages. The opportunity to seek business from more potential clients is the principal gain from multiple bar admissions. But there are substantial drawbacks against which those gains must be assessed. Getting admitted to multiple state bars takes time and effort. Maintaining more than one bar membership takes additional work on an on-going basis. Building a practice in more than one place also takes time away from practicing law.

Deciding whether to seek bar admission in more than one state ultimately depends upon a cost-benefit analysis. Are the financial costs and other burdens of obtaining multiple licenses to practice redeemed by the benefits of having those licenses? There is really no single answer to this question. The answer varies depending upon a non-exhaustive variety of factors: the practice that an attorney has, the number of states in which admission would be sought, the difference between the bar membership requirements of those states, and the real nature of the expansion of market opportunities created by those multiple bar admissions. Because the benefits of bar admission vary depending upon the nature of an individual attorney’s practice, this article cannot provide the final analysis for every attorney. However, some of the costs of multiple bar admission, which vary only by jurisdiction, will be identified.

Gaining Bar Admission
Although the requirements for bar admission and membership vary among the states, the basic elements of bar admission requirements are fairly consistent in the overwhelming majority of jurisdictions. 1

The primary path to bar admission is passing a bar examination. To be admitted to practice law at the outset of his or her career, a prospective attorney must pass a bar examination in at least one jurisdiction. In addition, if an attorney already admitted in one jurisdiction seeks admission in another, passing the bar examination is always available as the means to a law license, regardless of how long the attorney has practiced law.

Gaining bar admission by examination is governed by the board of bar examiners in each state. Most commonly, state statutes establish the state board of bar examiners as an agency of the highest court in the jurisdiction; in some jurisdictions, however, this board is an arm of the state bar association. State statutes also establish the requirements for eligibility to take the bar examination, or those statutes delegate authority to the board of bar examiners to determine those eligibility requirements. Although national organizations such as the American Bar Association (“ABA”), the ABA’s Council for the Section of Legal Education and Admissions to the Bar, or the National Conference of Bar Examiners have influence in recommending best practices for bar examiners, there are no nationwide rules for bar admission or for the requirements for taking and passing a bar examination.2 Those rules are made entirely on a state-by-state basis.3

In every jurisdiction, bar admission by examination involves a demonstration of worthiness in two principal areas: knowledge of the law and personal character. An applicant for bar admission can demonstrate a competent knowledge of the law by holding an acceptable educational credential (usually a J.D. degree from an accredited law school) and by passing a bar examination. An applicant can demonstrate worthy personal character through a review of certain background personal information, including any record of criminal charges or convictions or of other wrongdoing.4

Most states configure their bar examinations in essentially the same way, requiring applicants to take a two-part testing process spread across two days. The first part of the test comprises the Multistate Bar Examination (MBE), a standardized test presenting multiple-choice questions in seven areas of substantive law – constitutional law, contracts, criminal law, evidence, real property, civil procedure, and torts.5 The questions on the MBE involve fundamental principles of law universally accepted in United States jurisdictions, because they are part of federal law or because they are part of uniform rules, such as the established Anglo-American common law or Uniform Commercial Code. The second part of the test usually involves essay questions focused more directly on the specific procedural and substantive law rules of the jurisdiction administering the test. In a growing number of states, however, the state-specific essay test is giving way to one of two nationally developed tests, the Multistate Essay Examination (MEE) and the Multistate Performance Test (MPT). In addition, almost all jurisdictions require applicants to demonstrate a knowledge of legal ethics by passing the Multistate Professional Responsibility Examination (MPRE), which is separately administered three times each year.6

Along with establishing bar examination requirements, state bar examiners also review applicants’ personal character and their fitness for a law license. States require bar applicants to disclose to the bar examiners certain personal background information, including information about whether the applicant has ever been involved in any criminal or serious fraudulent or otherwise wrongful conduct, such as violating a school’s academic honor code. The applicant’s disclosures are then checked against public records for verification.7

Taking the bar examination can be a time-consuming and relatively expensive process. For recent law school graduates, there is no way around taking at least one bar examination. For a prospective attorney who wishes to practice in multiple jurisdictions from the beginning of his or her career, there are ways to obtain efficiencies in the time and cost of taking bar examinations. Most states will recognize the score of a recently-taken MBE. Therefore, a prospective attorney could take the MBE in one jurisdiction and then take only the second essay-exam portion of the bar examination in other jurisdictions, relying on the MBE score from the first bar examination. In addition, in states employing the MEE or MPT, it may be possible to take the exam in only one jurisdiction and apply the scores to other jurisdictions, although bar application fees and character and fitness reviews for each jurisdiction will still apply.8

For experienced attorneys, a few states require that all attorneys be admitted on the same basis – after passing the bar examination. These states include Delaware, Florida, Hawaii, Louisiana, Maryland, Montana, Nevada, New Jersey, Rhode Island, South Carolina, and California. Obviously, for attorneys practicing for a significant period and have specialized in a particular substantive area, the requirement to take the bar exam again can be a burden. However, the remaining thirty-nine states and the District of Columbia permit attorneys admitted in one state and have been practicing for a period of time to be admitted to their bars “on motion.” These states have varying requirements for what constitutes a sufficient period of practice, but, a common requirement is that an attorney must have practiced for five past seven years in a law firm, an in-house corporate position, law teaching, a government agency, or in a position the judiciary. A character and fitness check is another requirement, as is the payment of a fee for admission. Typical fee amounts are between several hundred and $2,000.9

Maintaining Bar Membership
Having become a member of a state bar, and having joined its bar association, an attorney must maintain the right to practice only by maintaining his law license. This requires the payment of annual bar membership fees, which ordinarily amount to several hundred dollars. However, in the overwhelming majority of states, continuing legal education (CLE) credits are required to maintain a license. The extent of these requirements varies widely by state. Some states, such as South Dakota, Maryland, and Michigan, do not require CLE at all. Among the states that do require CLE, Alaska only requires three hours of CLE each year. A handful of states, including Washington and Oregon, require forty-five hours of CLE annually. The content of CLE requirements varies. Some states require that a certain portion of all CLE credits be devoted to certain subject areas, most often legal ethics.10

For lawyers who rely on advertising to generate business, multiple bar admissions may bring other added burdens. One of these is advertising. State bars have varied rules for legal advertising.11 At a minimum, lawyers must take extra care to assure that their advertising practices follow the ethics rules in each state where they use them. This applies not only to things like billboard or mainstream media advertising, but also to advertising through social media. If a lawyer practices only in one state, his Twitter feed will be regulated by a single set of ethics rules, even it can be seen – at least in theory – by followers in every state; but if he or she practices in multiple states, his or her tweets must comply with the rules for each of those states.12 This complexity can be time consuming and complicated and requires careful attention to every aspect of a legal services marketing plan. For example, an attorney might offer an opinion about a generic legal matter in a Twitter post – such as asserting that a spouse involved in a divorce should not surrender possession of any asset jointly owned with the other spouse. If persons in different states who follow the lawyer’s Twitter feed respond with questions, a follow-up post providing more specific advice might have different implications in each state where the attorney is licensed, depending upon those states’ respective rules for establishing attorney-client relationships. In the end, the lawyer might wind up unwittingly creating an attorney-client relationship with a Twitter follower.13

Conclusion
Is it worthwhile to be admitted to multiple state bars? The best – and perhaps least satisfying – answer is, “it depends.” Lawyers who contemplate seeking multiple bar admissions must carefully examine the expanded market opportunities they will acquire by expanding the geographic scope of their practices and then balance those against the direct and indirect costs of obtaining and maintaining several bar memberships – especially the cost in time, effort, and energy in undertaking marketing and professional networking efforts in multiple geographic areas.

Endnotes
1 For a comprehensive survey of the admission requirements in every United States jurisdiction, see NATIONAL CONFERENCE OF BAR EXAMINERS & AMERICAN BAR ASSOCIATION SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, COMPREHENSIVE GUIDE TO BAR ADMISSION REQUIREMENTS 2015 34-35 (Erica Moeser & Claire Huismann, eds.) (2015), http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2015_comprehensive_guide_to_bar_admission_requirements.authcheckdam.pdf (last visited February 6, 2015)
2 AMERICAN BAR ASSOCIATION, BAR ADMISSIONS BASIC OVERVIEW, http://www.americanbar.org/groups/legal_education/resources/bar_admissions/basic_overview.html, (last visited February 6, 2014).
3 Id.
4 Id.
5 NATIONAL CONFERENCE OF BAR EXAMINERS, PREPARING FOR THE MBE, available at https://www.ncbex.org/exams/mbe/preparing/ ( last visited August 28, 2015).
6 Id.
7 Id.
8 Id.
9 Id.
10 Id. at 42-43. The following jurisdictions do not require CLE: District of Columbia, Maryland, Massachusetts, Michigan, and South Dakota.
11 See AMERICAN BAR ASSOCIATION, LINKS TO STATE ETHICS RULES GOVERNING LAWYER ADVERTISING, SOLICITATION, AND MARKETING, http://www.americanbar.org/groups/delivery_legal_services/resources/ad_rules_states.html (last visited February 7, 2015).
12 See Christina Vassiliou Harvey, et al., 10 Tips for Avoiding Ethical Lapses While Using Social Media, ABA’s Business Law Today (accessed at http://www.americanbar.org/publications/blt/2014/01/03_harvey.html on November 17, 2014).
13 Id.

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