Ridiculous from up close and far away.

I have some real-world experience in trying to help lawyers already admitted in at least one jurisdiction obtain admission to practice here in Tennessee.  My state’s system now is still less than ideal but not necessarily in a way that makes it strikingly more problematic than is the case in many other states.  (In the long, long ago I wrote a bit about how it was strikingly more problematic but we obtained some important rule revisions that made things better, if not perfect.)

Part of the overall problem with this aspect of lawyer regulation is the antiquated nature of the overall process plus the increasingly-difficult-to-intellectually-justify approach that we have to the regulation of the practice of law in this nation that clings to the notion that each of the 50 states plus D.C. is entitled to make its own determinations about whether someone who is perfectly competent at practicing law in one state can manage to grasp how to practice law in their state.

The underlying premise and approach is one that institutionally leads itself easily into a protectionist and parochial approach to making admissions decisions.  There are lots of ways in which the patchwork approach that exists to these issues has been very difficult to reconcile with advancements in technology and how easy it is for a lawyer sitting on a chair, in let’s say Oregon, with an internet connection can effectively practice law in, and service clients in, California or Texas or Maine or . . . well, you get the point.

This recent Law.com story tells the tale of an associate in a Kentucky office of Dinsmore Shohl who relocated to Ohio to work in the Cincinnati office and who is now at risk of being denied admission to the Ohio Bar based on “character and fitness” issues.  The problem with her character and fitness to practice is that Ohio has concluded that she’s been engaged in the unauthorized practice of law in Cincinnati by continuing to represent Kentucky clients where she is licensed while waiting for a decision on her application to be admitted to practice law in Ohio.

As far as fact patterns go, this one is among the more innocuous and is one that – if you happen to practice in a firm that has offices in multiple states — you’ve probably seen happen without incident and perhaps never even contemplated could go awry for the lawyer involved:

The questions about Jones’ potential admission to the Ohio bar trace back to 2015, when the associate requested a transfer to Dinsmore’s Cincinnati office so she could start and raise a family in Ohio, according to court documents. The firm granted her request but asked Jones to first apply for admission to the Ohio bar. It also required her to continue working only on matters arising under Kentucky law while her application for admission to the Ohio bar was pending.

Following the firm’s suggestions, Jones applied in October 2015 for reciprocal admission to the Ohio state bar—a process that would allow her to avoid retaking the bar exam in Ohio. She then moved to Cincinnati and worked only on Kentucky matters. She took a maternity leave and returned to practicing Kentucky law while based in Cincinnati, according to court documents in the case.

The article also indicates that those advocating for her admission in Ohio have raised constitutional arguments that also address one of the core problems with the way admissions authorities will often take a “cake and eat it too” approach to these issues:

Jones also invoked the U.S. Constitution’s due process provisions under the 14th Amendment. In a May brief, Jones’ lawyer noted that Ohio’s bar rules would allow an Ohio lawyer to practice Ohio law even if that lawyer was physically doing the work in another place. But, Jones argued, the board’s view would prohibit an out-of-state lawyer who wanted to do some work while in Ohio.

Even merely reading about this situation is a frustrating endeavor but important to highlight because, even if the Court ultimately gets the answer right, it shows how archaic some aspects of this whole approach to these issues are.  (Not the least of which being that we are talking about a situation in which this associate has now been under this cloud and in this situation for nearly three years.)  And heaven help all the multi-state firms with Ohio offices if the Court gets the outcome wrong.

Harmonizing practice pending and pro hac vice provisions in Tennessee

The Tennessee Supreme Court issued an order last week implementing a helpful change to our rules on pro hac vice admission so that lawyers who are taking advantage of recent rule changes in Tennessee to permit practice pending admission can also be admitted pro hac vice in a lawsuit on behalf of a client.  You can read the order here.

The gist of the issue is that effective January 1, 2016, our Court adopted a rule (located at Section 5.01(g) of Tenn. Sup. Ct. R. 7) to permit a lawyer licensed elsewhere who has moved to Tennessee and has applied for comity admission to be able to practice in Tennessee for up to 365 days while awaiting action on their application for admission.  Until the adoption of this latest order, however, the way our rule on pro hac vice admission (Tenn. Sup. Ct. R. 19) was written, someone who was a resident of Tennessee simply could not seek pro hac vice admission in our state courts.

This order fixes that situation for folks operating under practice pending admission by expressly mentioning that rule as an exception to the residency restriction.  This change certainly seems like the appropriate thing to do.

The next related questions though might be whether the same rule might need to be further tweaked to permit those in Tennessee who are practicing law as registered in-house counsel under Section 10.01 of Rule 7 or under the new rule as to temporary licenses permitted for spouses of those in military service to seek pro hac vice admission in litigation matters.

My initial instinct was that there might not be a very good argument for treating either of those categories differently than those blessed only by practice pending admission.  But with a bit more reflection, the fact that pro hac vice admission by its very nature is supposed to be a short-term, limited repetition event might be enough of a justification for a distinction as to in-house counsel.  Practice pending status can only go on for the 365 days whereas an in-house counsel can rely upon a registration license in lieu of a full license for their entire career.  As to the military spouse rule, I’m unable to come up with a distinction of note.

(At certain times, world events make it feel a bit silly to write about legal ethics matters.  This is one of those times.  Like most grown adult human beings, I have strong opinions on a lot of topics, but I try my best not write about things unless I can at least find some plausible way to tie them back to core questions of legal ethics and lawyering.  So, in this superfluous paragraph, I will only say that I happen to be the Treasurer of the Tennessee branch of a non-profit organization much in the news of late, and if you believe in the work it does — and particularly if you live in Tennessee — feel free to donate what you can afford.)

Tennessee Supreme Court takes long-awaited action to smooth admissions problems

Yesterday, the Tennessee Supreme Court entered an order that addresses a variety of issues I have written about on a number of prior occasions.  You can take in the entire order setting out all of the new provisions here.  In addition to making a spot change to Tennessee Supreme Court Rule 6 and a revision to RPC 5.5(d), it replaces Tennessee Supreme Court Rule 7 in its entirety.

In almost all respects, the Court’s action offers the hoped for outcomes on a variety of issues plaguing Tennessee’s admission system for lawyers licensed in other jurisdictions.  The contents of the new rule becomes effective in just 11 days, on January 1, 2016.

As to comity admission, the Court has removed the requirement it had added into Section 5.01 that conditioned eligibility for comity admission upon having both applied for it, and being approved for it, before moving to Tennessee to be employed as a lawyer.  Effective January 1, 2016, Section 5.01 will no longer say anything along those lines (and in fact does not even explicitly require the application be submitted before arrival in Tennessee).

The Court also had adopted a robust practice pending admission provision that will permit applicants awaiting a ruling on their comity application to practice law in Tennessee for up to 365 days.  The provision is largely patterned after the ABA Model provision on the topic and requires the applicant to “associate[] with a lawyer who is admitted to practice in Tennessee.”

With respect to in-house counsel registration, the order provides a second round of amnesty so that any lawyers, currently employed as in-house counsel in Tennessee but who are not licensed here and did not get properly registered before now, can have any prior sins in this respect forgiven as long as they get an in-house counsel registration application filed within 180 days from January 1, 2016 (June 30, 2016).  Accompanying this change is a revision to RPC 5.5(d) to add a (3) that more prominently explains the repercussions in the future for any in-house counsel who fails to make timely advantage of this amnesty (and for any in-house counsel who may arrive in Tennessee in the future and miss the 180-day registration deadline).  The Court also took this opportunity to make explicit what was previously just strongly implied — that an in-house counsel who gets their application in timely (i.e. on day 175 for example, need not worry that the work they do during days 1-174 is somehow UPL.

The Court also took favorable action on a request made to make it easier for the spouses of those in military service to become admitted in Tennessee.  The Court took something of a compromise position between a proposal made by military spouses and a counter-proposal offered by the TBA – offering a 2-year initial license period with the ability to renew for additional 1-year periods provided the initial requirements for obtaining the license remain in place.

Additionally, and importantly, for a number of lawyers with comity applications that have been pending or on hold or otherwise stuck in the system while these long discussed changes have been under consideration, the Court has adopted a specific provision addressing the transition period from the old rule to the new rule as to comity admissions and that reads as follows:

(i)  Transitional Provision.  From January 1, 2016, and continuing through December 31, 2016, the Board is authorized to exercise its discretion in adjudicating pending applications for comity admission that have not been finally ruled upon as of the effective date (January 1, 2016) of this revised Rule.  Such discretion includes waiving or altering time periods or otherwise varying the provisions for admission by comity, and the Board shall tailor such discretion toward granting the applicant’s application for comity admission as long as the Board otherwise reaches the conclusion that the lawyer possesses the character and fitness to practice law in this jurisdiction.

While the transitional provision is very helpful, it does not go quite as far as what was proposed by the TBA.  The TBA had sought for the Court to adopt language that would have read as follows:

From and after [January 1, 2016] and continuing until [December 31, 2016], the Court specifically directs the Board of Law Examiners to use discretion in adjudicating pending applications that have not been finally ruled upon, including waiving or altering time periods or otherwise varying provisions, to tailor such discretion toward granting the applicant’s application for comity admission as long as the Board otherwise reaches the conclusion that the lawyer possesses the character and fitness to practice law in this jurisdiction.

The difference likely does not affect a horde of folks but there may be lawyers out there who had held off filing comity applications while awaiting a ruling who now may wonder whether they must apply in the next ten days to take full advantage of these changes.  It also may be less than clear whether any lawyers with currently pending comity applications but who already have offices in Tennessee will be permitted to take full advantage of the practice pending admission provision because of the specific language of the transition provision.  Thus, there may be situations out there that will still fall within some gaps in the working of the rule moving forward.  (There also are some grounds to criticize other aspects of the rules requirements on public policy grounds — questions such as whether the change in the rule to now require someone who went to law school in a foreign country but wishes to sit for the Tennessee Bar exam has to first obtain an LLM in the United States are too restrictive.)

But, on the whole, there can be no question that the entry of the Court’s order yesterday is a good outcome.