It’s inexplicable how two grown-ups slipped in to the 24 Hours of Rebels project, but both Bob Ambrogi of Lawsites (and about 20 other things) and Bruce McEwen of Adam Smith, Esq. have offered essays with a provocative proposition having nothing to do with gaining twitter followers.  There’s gonna be hell to pay in the ABA Journal back office for this screw-up.

The proposition is simple, clear and radical: It’s time for the limitations of state bar admissions to come to an end.

From Ambrogi’s essay :

It no longer makes sense to regulate the practice of law based solely on a lawyer’s geographic location. In fact, not only does geography not make sense as a basis for regulation, but it is irrelevant.

Bob goes on to provide a list of 6 specific reasons why state bar admission has outlived its usefulness.

• More and more, law is federal. The Constitution and federal law provide the legal framework for broad swaths of our day-to-day lives, from business to communications, from employment to the environment.

• More and more, law is standardized. Even where the law is left to the states, laws on similar topics tend to mirror each other. Often, state laws are based on uniform drafts written by national bodies.

• More and more, lawyers are specialists. One of the arcane rules governing lawyers is that they are not supposed to call themselves specialists or experts. But most lawyers are, whether in a single field of practice or several.

• Know-how trumps location any day. The lawyer who is an expert in a given field but lives in a different state is better prepared to represent a client in that field than is the non-expert who happens to live in the same state.

• State-specific savvy is a myth. The rationale for state bar admission is that lawyers know their state’s laws. The fact is, they know only the laws they need to know and conduct research to figure out the rest. When a lawyer is confronted with a legal question, it makes little difference in solving it whether the answer is to be found in the law of the lawyer’s home state, another state or in federal statutes or cases.

• Lawyers are not stupid. Some lawyers may be darned fools, but few made it through law school without some brains in their heads. What matters is not the geographic location of the client’s problem, but the lawyer’s ability to analyze and address the problem.

MacEwen’s view is less based upon the value of state specific regulation than the anti-competitive forces of geographic limitations:

Where are you admitted? Why on earth should that matter?

Why, for that matter, should it even be a question with an answer? Shouldn’t we be admitted to practice “in the United States?” (“In the EU?”) Do our clients care? Only, I would suggest, to the extent that they want the freedom to call on the best of us in New York, California, D.C., London, Hong Kong, and wherever else it might come in handy for them.

Take this a step farther: Why should law firms be subject to the jurisdiction of the state bar wherever they happen to have an office? If Amazon can choose to be headquartered in Seattle, but can also choose to be incorporated in Delaware, and does business—remind me, where again does Amazon “do business”?—why shouldn’t law firms enjoy the same benefits?

Bruce, an unabashed “card-carrying capitalist,” takes the pragmatic road, that the protective guild aspect of state bar admissions does nothing more than keep out the competition to the advantage of the locals.

In one sense, I can’t imagine any lawyer who wouldn’t love to be free of the yoke of state bar admissions.  When sought for a case in a neighboring state, whether a thousand miles away or just down the street, the primary constraint is that of admission.  While I’ve represented clients in courts across the country, I am, as far as the bar is concerned, a New York lawyer, because that’s what it says on the fancy certificate hanging on my wall.  Am I unqualified to practice elsewhere?  Hardly, but I am compelled to retain local counsel to introduce me to the court for my admission pro hac vice.

Truth is, however, that in flying around the country to try cases, local counsel has proven invaluable to me.  Courts have their own ways, from how the documents are prepared (including truly stupid things like where one puts one’s address on the notice of motion), to how one obtains a routine adjournment.  These aren’t significant or substantive differences, but as one tries to navigate the way through courts in other jurisdictions, local talent can be a huge time saver and important way to avoid creating undesired antagonism.  Local courts have little tolerance for outsiders who don’t do things their way.

It would be far more understandable if the practice variations were limited to state courts, but they exist in federal court as well.  It never ceases to amaze me how different the quirks of local practice can be from district to district, circuit to circuit.  Between local time rules, and just the ordinary routine taken for granted in any particular district, one can immediately tell who’s a regular and who’s a carpet-bagger.  Mind you, the carpet-bagger may be a top flight lawyer, and perhaps brings a freedom from the local “ordinary injustice” that tends to infect regular practitioners, but it’s clear that “he’s not from around here.”

And while the bulk of my practice is federal, state court practice can be wildly different from jurisdiction to jurisdiction.  In criminal law, as well as some other practice areas like personal injury, the vast majority of cases are handled at the state rather than federal level.  Bob Ambrogi’s argument, that the law has largely become federalized, doesn’t bear out.  It’s very much a local matter, and a comprehensive understanding of a state’s statutory and caselaw is critical to competent representation.

That doesn’t mean that the out-of-towner can’t learn the local law.  Learning the law isn’t all that difficult, assuming one is willing to put in the time to do the legwork, but what are the chances that lawyers from other states would put in the effort?  Far too many can’t be bothered to achieve mastery of their own state’s law, no less that of others.  They’re too busy working on their marketing strategies.

The idea that lawyers should be able to break into jurisdictions other than their own to surmount the anti-competitive nature of state law guilds, and that these wild swings in local ways and laws should be more moderate, is sound.  My problem is that it’s simply not the case.  It’s difficult to imagine state lawmakers giving up their authority, no duty, to enact the laws they believe are proper for their home states in order to achieve some sort of nationalized homogenization.  And it’s difficult to believe that attorneys will take the extra time necessary to gain a sufficient mastery of local law to be competent, no less excellent, in their representation. 

On the federal level, however, it seems that the notion has far longer legs than for state court.  There is still the inexplicable local practice disparities, which could be standardized across the country given that there’s no rational justification for each district to play by its own set of rules.  Sure, the locals would gripe about change, and each would believe that their local ways are better than whatever would replace it, but standardization across federal districts and circuits would ultimately inure to everyone’s benefit.

But I see no way to overcome the huge risks to clients at the state level.  As much as I might love to be free of the chains that bind me to New York, and I could easily claim that I would never represent a client in another state without first putting in the effort to become fully familiar with the applicable laws, the monopoly afforded lawyers is dependent on the state’s confidence that the individual is already, not conditionally, competent to take on the responsibility of appearing in its court.  While this proposition itself raises doubts, it is magnified many fold if lawyers were left to their own devices when representing clients in state courts.

So should we expect some sort of national bar admission to be the future of the legal profession?  Not only would I not expect it, but I wouldn’t, as someone who believes in a lawyer’s duty to competently represent his clients, want it, no matter how much it might benefit me personally. 

We aren’t ready for national bar admission.  We don’t deserve it.  Maybe someday we will, but not now.