Admission to the bar in the United States

For information on individual state bars, see state bar association.
Legal education in the United States
Stages
Exams
Organizations

Admission to the bar in the United States is the granting of permission by a particular court system to a lawyer to practice law in that system. Each US state and similar jurisdiction (e.g. territories under federal control) has its own court system and sets its own rules for bar admission (or privilege to practice law), which can lead to different admission standards among states. In most cases, a person who is "admitted" to the bar is thereby a "member" of the particular bar.

In the canonical case, lawyers seeking admission must earn a Juris Doctor degree from a law school approved by the jurisdiction, and then pass a bar exam administered by it. Typically, there is also a character and fitness evaluation, which includes a background check. However, there are exceptions to each of these requirements.

A lawyer who is admitted in one state is not automatically allowed to practice in any other. Some states have reciprocal agreements that allow attorneys from other states to practice without sitting for another full bar exam; such agreements differ significantly among the states.

Terminology

the bar (railing) at the Rhode Island Supreme Court

The use of the term "bar" to mean "the whole body of lawyers, the legal profession" comes ultimately from English custom. In the early 16th century, a railing divided the hall in the Inns of Court, with students occupying the body of the hall and readers or Benchers on the other side. Students who officially became lawyers were "called to the bar", crossing the symbolic physical barrier and thus "admitted to the bar".[1] Later, this was popularly assumed to mean the wooden railing marking off the area around the judge's seat in a courtroom, where prisoners stood for arraignment and where a barrister stood to plead. In modern courtrooms, a railing may still be in place to enclose the space which is occupied by legal counsel as well as the criminal defendants and civil litigants who have business pending before the court.

General requirements for admission

The first bar exam in what is now the United States was instituted by Delaware Colony in 1763, as an oral examination before a judge.[2] The other American colonies soon followed suit.[2] By the late 19th century, the examinations were administered by committees of attorneys, and they eventually changed from an oral examination to a written one.[2]

Today, each state has its own rules which are the ultimate authority concerning admission to its bar. Generally, admission to a bar requires that the candidate do the following:

Law schools not accredited by the ABA

Alabama, California,[7] Connecticut, Georgia,[8] Massachusetts, West Virginia and Tennessee allow individuals to take the bar exam upon graduation from law schools approved by state bodies but not accredited by the American Bar Association.

On the other hand, in certain states, e.g., Arizona, one may not be allowed to actually take the bar exam unless one's law school is ABA accredited, and this requirement has withstood constitutional attack. Thus, a graduate of a law school without ABA accreditation may not sit for the Arizona bar, although they may take the bar in other states.

California "Registered" law schools

In California, certain law schools are registered with the Committee of Bar Examiners[9] of The State Bar of California. Such schools, though not accredited by either the ABA or the Committee on Bar Examiners, are authorized to grant the Juris Doctor (J.D.) law degree. Students at these schools must take and pass the First-Year Law Students' Examination (commonly referred to as the "Baby Bar") administered by the CBE.[10] Upon successful passing of the "Baby Bar," those students may continue with their law studies to obtain their J.D. degree.[11] Students at law schools accredited by either the ABA or CBE are exempt from having to take and pass the Baby Bar.

Admission without law school

In California, Vermont, Virginia, Washington, and Wyoming[12] an applicant who has not attended law school may take the bar exam after study under a judge or practicing attorney for an extended period of time.[13][14] This method is known as "reading law" or "reading the law".

New York requires that applicants who are reading the law have at least one year of law school study (Rule 520.4 for the Admission of Attorneys).[15]

Maine allows students with two years of law school to serve an apprenticeship in lieu of completing their third year.

Tactical considerations regarding admission in multiple states

Most attorneys seek and obtain admission only to the bar of one state, and then rely upon pro hac vice admissions for the occasional out-of-state matter. However, many new attorneys do seek admission in multiple states, either by taking multiple bar exams or applying for reciprocity. This is common for those living and working in metro areas which sprawl into multiple states, such as Washington, D.C. and New York City. Attorneys based in predominantly rural states or rural areas near state borders frequently seek admission in multiple states in order to enlarge their client base.

Note that in states that allow reciprocity, admission on motion may have conditions that do not apply to those admitted by examination. For example, attorneys admitted on motion in Virginia are required to show evidence of the intent to practice full-time in Virginia and are prohibited from maintaining an office in any other jurisdiction. Also, their licenses automatically expire when they no longer maintain an office in Virginia.[16][17]

Types of state bar associations

Admission to a state's bar is not necessarily the same as membership in that state's bar association. There are two kinds of state bar associations:

Mandatory (integrated) bar

Thirty-two states and the District of Columbia require membership in the state's bar association to practice law there.[18] These states have what is called a having a mandatory, unified, or integrated bar.

In Texas, for example, the State Bar of Texas is an agency of the judiciary and is under the administrative control of the Texas Supreme Court.[19] The State Bar of Texas is composed of those persons licensed to practice law in Texas, and each such person is required by law to join the State Bar by registering with the clerk of the Texas Supreme Court.[20] See also State Bar of California.

Voluntary and private bar associations

A voluntary bar association is a private organization of lawyers. Each may have social, educational, and lobbying functions, but does not regulate the practice of law or admit lawyers to practice or discipline lawyers. An example of this is the New York State Bar Association.

There is a statewide voluntary bar association in each of the eighteen states that have no mandatory or integrated bar association. There are also many voluntary bar associations organized by geographic area (e.g., Chicago Bar Association), interest group or practice area (e.g., Federal Communications Bar Association), or ethnic or identity community (e.g., Hispanic National Bar Association).

The American Bar Association (ABA) is a nationwide voluntary bar association with the largest membership in the United States. The National Bar Association was formed in 1925 to focus on the interests of African-American lawyers after they were denied membership by the ABA.[21]

Federal courts

Admission to a state bar does not automatically entitle an individual to practice in federal courts, such as the United States district courts or United States court of appeals. In general, an attorney is admitted to the bar of these federal courts upon payment of a fee and taking an oath of admission. An attorney must apply to each district separately. For instance, a Texas attorney who practices in federal courts throughout the state would have to be admitted separately to the Northern District of Texas, the Eastern District, the Southern District, and the Western District. To handle a federal appeal, the attorney would also be required to be admitted separately to the Fifth Circuit Court of Appeals for general appeals and to the Federal Circuit for appeals that fall within that court's jurisdiction. As the bankruptcy courts are divisions of the district courts, admission to a particular district court usually includes automatic admission to the corresponding bankruptcy court. The bankruptcy courts require that attorneys attend training sessions on electronic filing before they may file motions.

Some federal district courts have extra admission requirements. For instance, the Southern District of Texas requires attorneys seeking admission to attend a class on that District's practice and procedures. For some time, the Southern District of Florida administered an entrance exam, but that requirement was eliminated by Court order in February 2012.[22] The District of Rhode Island requires candidates to attend classes and to pass an examination.

Many federal district courts require attorneys to be members of the state bar where the court sits. This requirement is not necessarily consistent within a state. For example, in Ohio, the Southern District generally requires membership in the Ohio state bar for full admission,[23] while full admission to the Northern District is open to all attorneys in good standing with any U.S. jurisdiction.[24][25][26]

An attorney wishing to practice before the Supreme Court of the United States must apply to do so, must be admitted to the bar of the highest court of a state, must be sponsored by two attorneys already admitted to the Supreme Court bar, must pay a fee and must take either a spoken or written oath.[27]

Various specialized courts with subject-matter jurisdiction, including the United States Tax Court, have separate admission requirements. The Tax Court is unusual in that a non-attorney may be admitted to practice. However, the non-attorney must take and pass an examination administered by the Court to be admitted, while attorneys are not required to take the exam. Most members of the Tax Court bar are attorneys.

Admission to the Court of Appeals for the Federal Circuit is open to any attorney admitted to practice and in good standing with the U.S. Supreme Court, any of the other federal courts of appeal, any federal district court, the highest court of any state, the Court of International Trade, the Court of Federal Claims, the Court of Appeals for Veterans Claims, or the District of Columbia Court of Appeals. An oath and fee are required.[28]

Some federal courts also have voluntary bar associations associated with them. For example, the Association of the Fifth Federal Circuit, the Association of the Third Federal Circuit, or the of the Bar of the United States Court of Appeals for the Eighth Circuit all serve attorneys admitted to practice before specific federal courts of appeals.

Patent practice

Persons wishing to "prosecute" patent applications (i.e., represent clients in the process of obtaining a patent) must first pass the USPTO registration examination, frequently referred to as the "patent bar." Detailed information about applying for the registration examination is available in the USPTO's General Requirements Bulletin.[29] Although only registered patent attorneys or patent agents can prosecute patent applications in the USPTO, passing the patent bar is not necessary to advise clients on patent infringement, to litigate patent issues in court, or to prosecute trademark applications.

A J.D. degree is not required to sit for the patent bar. Lawyers who pass the patent bar exam may refer to themselves as a patent attorney (rules of legal ethics prohibit lawyers from using the title "patent attorney" unless they are admitted to practice before the USPTO). While patent lawyers have a relevant four-year degree and many have graduate technical degrees, patent litigation attorneys do not have to be patent attorneys, although some are. On the other hand, non-lawyers who pass the patent bar are referred to as "patent agents." Patent agents may not hold themselves out as licensed attorneys.

Applicants must have U.S. citizenship, permanent residency (a Green Card), or a valid work visa for a patent-related job. An applicant on a work visa, upon passing the exam, is only given "limited recognition" to perform work for the employer listed on the work visa. Only U.S. citizens can maintain their registration in the patent bar while they are working outside the United States. Additionally, the USPTO requires that applicants to the patent bar have earned a bachelor's degree. Applicants are categorized as having earned an accredited "bachelor's degree in a recognized technical subject" (category A), having earned a "bachelor's degree in another subject" with sufficient credits to qualify for the exam (category B), or having "practical engineering or scientific experience" (category C).

Applicants in "category A" must have an engineering or "hard science" degree in a field listed in the General Requirements Bulletin. Note that the degree field as shown on the diploma must be exactly as it appears on the list; for example, "aerospace engineering" does not qualify under category A, while "aeronautical engineering" does. A computer science degree is accepted under "category A" as long as it is received from an Accreditation Board for Engineering and Technology (ABET)-accredited or CSAB-accredited program.

Applicants in "category B" must have earned a bachelor's degree, and must have sufficient credits in science and engineering courses to meet the USPTO's requirements; the number of credits depends on the specific discipline. The coursework must include a minimum of eight credit-hours of acceptable classes in either chemistry or physics. Each course being relied upon by the applicant for credit is evaluated by the USPTO's Office of Enrollment and Discipline for suitability; see the General Requirements Bulletin for the details. Engineering and Computer Science majors whose degree programs do not meet "category A" requirements (typically due to the named field of the degree or, especially in computer science, lack of program accreditation) can apply under "category B."

Applicants in "category C" may present evidence of passing the Fundamentals of Engineering exam as proof of technical education. They must also have a bachelor's degree. Although the admission requirements allow applicants to substitute proof of technical experience for technical education, this is rarely done in practice.

Military law

Service as a member of a military service's Judge Advocate General's Corps requires graduation from an ABA-accredited law school, a license to practice law in any state or territory of the United States, and training at the specialized law school of one of the three military services (The Judge Advocate General's Legal Center and School for the Army, the Naval Justice School for the Navy, Marine Corps, and Coast Guard, and the Air Force Judge Advocate General School for the Air Force).

In a court-martial, the accused is always provided JAG Corps defense counsel at no expense to the accused, but is also entitled to retain private civilian counsel at his or her own expense. Civilian counsel must either be a member of both a federal bar and a state bar, or must be otherwise authorized to practice law by a recognized licensing authority and certified by the military judge as having sufficient familiarity with criminal law as applicable in courts-martial.[30]

Apprenticeship issue

The American legal system is unusual in that, with few exceptions, it has no formal apprenticeship or clinical training requirements between the period of academic legal training and the bar exam, or even after the bar exam. Two exceptions are Delaware and Vermont, which require that candidates for admission serve a full-time clerkship of at least five months (Delaware) or three months (Vermont) in the office of a lawyer previously admitted in that state before being eligible to take the oath of admission. New Jersey has a similar requirement, with the addition of training and instruction.

On October 12, 2005, the Washington State Supreme Court adopted amendments to Admission to Practice Rule 5 and 18, mandating that, prior to admission, Bar applicants must complete a minimum of four hours of approved pre-admission education.[31][32]

Some law schools have tried to rectify this lack of experience by requiring supervised "Public Service Requirements" of all graduates.[33] States that encourage law students to undergo clinical training or perform public service in the form of pro bono representation may allow students to appear and practice in limited court settings under the supervision of an admitted attorney. For example, in New York's Third Appellate Department, "Any officer or agency of the state ... or any legal aid organization ... may make application to the presiding justice of this court for an order authorizing the employment or utilization of law students who have completed at least two semesters of law school and eligible law school graduates as law interns to render and perform legal services ... which the officer, agency or organization making the application is authorized to perform."[34] Similarly, New York's state Department of Labor allows law students to practice in unemployment benefits hearings before the agency.[35]

As a result, in most jurisdictions anyone with a J.D. (or equivalent experience in the states that allow it) may take the bar exam and be admitted to the bar, and then may immediately seek out clients and start filing papers with a court. The current system has been criticized on the grounds that clients often end up subsidizing the apprenticeship of young lawyers.

Character and fitness

In addition to the educational and bar examination requirements, most states also require an applicant to demonstrate good moral character. This has resulted in a variety of subjective factors being used to prevent applicants who are otherwise qualified from being admitted. For example, until the policy was reversed by the Supreme Court of Virginia in 1979, female applicants who were cohabiting out of wedlock were denied admission to the bar.[36] In early 2009, a person who had passed the New York bar and had over $400,000 in unpaid student loans was denied admission by the New York Supreme Court, Appellate Division due to excessive indebtedness, despite being recommended for admission by the state's character and fitness committee.[37] He moved to void the denial, but the court upheld its original decision in November 2009, by which time his debt had accumulated to nearly $500,000.[38]

For example, in Virginia, each applicant must complete a 24-page questionnaire[39] and may appear before a committee for an interview if the committee initially rejects their application.[40]

Admission formalities

Once all prerequisites have been satisfied, an attorney must actually be admitted. The mechanics of this vary widely. For example, in California, the admittee simply takes an oath before any state judge or notary public, who then co-signs the admission form. Upon receiving the signed form, the State Bar of California adds the new admittee to a list of applicants recommended for admission to the bar which is automatically ratified by the Supreme Court of California at its next regular weekly conference; then everyone on the list is added to the official roll of attorneys. The State Bar also holds large-scale formal admission ceremonies in conjunction with the U.S. Court of Appeals for the Ninth Circuit and the federal district courts, usually in the same convention centers where new admittees took the bar examination, but these are optional.

In other jurisdictions, such as the District of Columbia, new admittees must attend a special session of court in person to take the oath of admission in open court; they cannot take the oath before any available judge or notary public.

Incidents of admission

A successful applicant is permitted to practice law after being sworn in as an officer of the Court; in most states, that means they may begin filing pleadings and appearing as counsel of record in any trial or appellate court in the state. Upon admission, a new lawyer is issued a certificate of admission, usually from the state's highest court, and a membership card attesting to admission.

Two states are exceptions to the general rule of admission by the state's highest court:

In most states, lawyers are also issued a unique bar identification number. In states like California where unauthorized practice of law is a major problem, the state bar number must appear on all documents submitted by a lawyer.[43]

References

  1. ↑ "Etymology: Bar". EtymologyOnline.com. Retrieved December 11, 2006.
  2. 1 2 3 "California Bar Examination: Information and History" (PDF). The State Bar of California. p. 3. Retrieved June 27, 2011.
  3. ↑ Law School Admission Council "Thinking About Law School?", page 4
  4. 1 2 3 4 "The Uniform Bar Examination (UBE)". National Conference of Bar Examiners. Retrieved June 30, 2015.
  5. 1 2 "General UBE FAQs". National Conference of Bar Examiners. Retrieved April 16, 2014. Click on "Which jurisdictions administer the UBE?"
  6. ↑ "MBE Jurisdictions". National Conference of Bar Examiners. Retrieved February 18, 2013.
  7. ↑ Committee of Bar Examiners: Title 4. Admissions and Educational Standards, Adopted July 2007, Division 2. Accredited Law School Rules, Chapter 1. General Provisions
  8. ↑ Georgia Bar Admission Rules
  9. ↑ Committee of Bar Examiners: Title 4. Admission and Educational Standards Adopted July 2007, Division 3. Unaccredited Law School Rules, Chapter 1. General Provisions
  10. ↑ FYLSE Requirements
  11. ↑ Description & Grading of the California First-year Law Students' Examination
  12. ↑ http://www.courts.state.wy.us/CourtRules_Entities.aspx?RulesPage=PracticeOfLawAdmission.xml
  13. ↑ "Rule 6 Law Clerk Program". Washington State Bar Association. 2002. Retrieved March 4, 2007.
  14. ↑ "State Special Reciprocity Rules". Online Bar Reciprocity Database. BarReciprocity LLC. Retrieved November 21, 2011.
  15. ↑ Rule 520.4
  16. ↑ Supreme Court of Virginia. "Rules & Regulations for Admission on Motion". Virginia Board of Bar Examiners. Retrieved April 29, 2010.
  17. ↑ "Rules for Admission on Motion". Database of Reciprocity and Admission Rules. BarReciprocity.com. Retrieved November 21, 2011.
  18. ↑ "State and Local Bar Associations". American Bar Association. Retrieved January 8, 2010.
  19. ↑ See Texas Government Code section 81.011.
  20. ↑ See Texas Government Code section 81.051.
  21. ↑ National Bar Association: The NBA Perspective
  22. ↑ http://www.flsd.uscourts.gov/?page_id=2647
  23. ↑ "Local Rule 83.3 Admission to the Bar" (PDF). Local Civil and Criminal Rules. United States District Court for the Southern District of Ohio. December 1, 2009. pp. 35–36. Retrieved December 23, 2009. See specifically Rules 83.3(b) and (c).
  24. ↑ "Rule 83.5 Admission of Attorneys to Practice in the Northern District of Ohio". Local Civil Rules. United States District Court for the Northern District of Ohio. August 31, 2009. Retrieved October 4, 2011. See specifically Rule 83.5(b).
  25. ↑ "Rule 57.5 Admission of Attorneys to Practice in the Northern District of Ohio". Local Criminal Rules. United States District Court for the Northern District of Ohio. August 31, 2009. Retrieved October 4, 2011. See specifically Rule 57.5(b).
  26. ↑ In the Northern District of Ohio, admitted attorneys need not maintain an office in the district, or associate with a local attorney, unless ordered to do so by the court. See Civil Rule 83.5(c) and Criminal Rule 57.5(c).
  27. ↑ http://www.supremecourt.gov/bar/barinstructions.pdf
  28. ↑ "Rule 46. Attorneys" (PDF). Rules of Practice. United States Court of Appeals for the Federal Circuit. June 1, 2011. pp. 86–87. Retrieved September 19, 2011.
  29. ↑ USPTO General Requirements Bulletin for Admission
  30. ↑ Rule of Court Martial 502(d)(3); United States Joint Service Commission on Military Justice (January 16, 2008). Manual for Courts-Martial (MCM), United States (PDF) (2008 ed.). Retrieved December 1, 2011.
  31. ↑ "Admission to Practice Rule 5". Washington State Supreme Court. Archived from the original on March 4, 2008. Retrieved March 7, 2008.
  32. ↑ "Admission to Practice Rule 18". Washington State Supreme Court. Retrieved March 7, 2008.
  33. ↑ "University of Louisville Brandeis School of Law Public Service Requirement". State of New York Courts. Archived from the original on January 28, 2008. Retrieved March 7, 2008.
  34. ↑ "Part 805: Admission of Attorneys". State of New York Courts. Retrieved March 7, 2008.
  35. ↑ "Need Help With Unemployment Benefits?". State of New York Department of Labor. Archived from the original on March 11, 2008. Retrieved March 7, 2008.
  36. ↑ "Woman Fit For Bar Test". Toledo Blade. April 21, 1979. p. 3. Retrieved September 4, 2010.
  37. ↑ Glater, Jonathan D. (July 1, 2009). "Finding Debt a Bigger Hurdle Than Bar Exam". The New York Times. Retrieved September 4, 2010.
  38. ↑ Glater, Jonathan D. (November 26, 2009). "Again, Debt Disqualifies Applicant From the Bar". The New York Times. Retrieved October 6, 2010.
  39. ↑ "Character & Fitness Questionnaire" (PDF). Virginia Board of Bar Examiners. Archived (PDF) from the original on October 8, 2010. Retrieved September 4, 2010.
  40. ↑ "Admission Rules Section III". Rules of the Virginia Board of Bar Examiners. Virginia Board of Bar Examiners. Archived from the original on October 12, 2010. Retrieved September 4, 2010.
  41. ↑ "Admission Information". The New York State Board of Law Examiners. Archived from the original on November 14, 2010. Retrieved November 9, 2010.
  42. ↑ "Part B, Section 15. Duty of Judges After Receiving Certificate of the Board" (PDF). Rules Governing Admission to the Practice of Law. Supreme Court of Georgia. January 8, 2010. Retrieved November 9, 2010.
  43. ↑ See, e.g., California Rules of Court, Rule 2.111.

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