Fixing TN’s Comity Problem and Practice Pending Admission

In my first post on the heels of the filing of the pending BLE petition earlier this month, I made reference to Tennessee’s attorney licensing system being broken.  The primary problem is that language in Rule 7 makes obtaining licensing by comity (i.e. waiving in without having to take TN’s bar examination) a practical impossibility.

Currently, Section 5.01 of Rule 7 provides that a lawyer’s comity application “shall be submitted to the Board of Law Examiners and approved prior to commencement of law business in Tennessee or employment as a lawyer in Tennessee.”  (Emphasis added).  There is a significant gap in time between when a lawyer sends in their comity application and the date, if ever, it receives approval, i.e. the license is granted.  Even for a lawyer with a spotless track-record, we are talking about a process (which includes having to go through all of the National Conference of Bar Examiners red tape) measured in months not days.  Thus, if approval has to be obtained before you can start practicing law in Tennessee, then the practical result is that the only people who could comply with existing language of the rule are people who decide to seek comity admission in Tennessee long before they have any kind of job opportunity in Tennessee that would give them reason to do so.

For people whose interest in becoming licensed to practice in Tennessee happens in the more normal fashion, the rule is simply unworkable.  This is easily demonstrated with a hypothetical involving a not all that imaginative scenario.  Lawyer who has been practicing law for 10 years in Wisconsin gets a job offer to come join a Tennessee law firm.  Once the lawyer communicates to Tennessee firm that she is taking the offer, the firm will want the lawyer to move as quickly as possible for obvious reasons.  Yet, under Rule 7, unless the Wisconsin lawyer waits the many months necessary for her application to be approved before moving to Tennessee and beginning work for the Tennessee firm, the Wisconsin lawyer will lose eligibility to get comity admission and would, instead, have to try to sit for the bar exam.  In the meantime, thanks to a Board of Professional Responsibility opinion addressing the impact of Section 5.01 of Rule 7, it would be unclear what, if anything, the Wisconsin lawyer could do in Tennessee in terms of work without being subject to accusations of engaging in the unauthorized practice of law.

The BLE’s pending petition seeks to delete this language in Section 5.01 of Rule 7, a very positive development.  Presumably, if only that were accomplished, then perhaps the workable regime for handling such lateral movement long recognized in Tennessee under a prior BPR Formal Ethics Opinion would be back in the mix, and it would at least be clear again that the  Wisconsin lawyer could function and contribute to some extent by working at the Tennessee law firm while waiting on approval of her application for admission.

The BLE petition goes further, however, and seeks to introduce a practice pending admission concept that would permit people our Wisconsin lawyer under the supervision of a Tennessee lawyer.  The only problem with the BLE proposal is that it takes a one-size fits all approach and attempts to expand an existing provision of Rule 7 focused on, and designed for, brand new law school graduates and employs the same approach to much more seasoned lawyers.

Personally, I think that a better working template would be something closer aligned to the ABA Model Rule regarding practice pending admission for lawyers eligible to seek comity admission.  The ABA approach would provide our hypothetical Wisconsin lawyer with a roughly one-year window of time to engage in practice in Tennessee while waiting on the administrative process to play out.  The ABA approach, however, also requires lawyers exercising this time-limited opportunity to practice pending admission to make the disciplinary authorities in Tennessee aware that the Wisconsin lawyer is here practicing law.  Such an approach would much more realistically address the reality of lawyer mobility, allow Tennessee law firms to better compete for talent currently located out-of-state, and still would in no way sacrifice client protections or limit the ability of disciplinary counsel to take action against lawyers who engage in unethical conduct while their admission application is pending.