Legal ethics

Welcome to a new type of post

We will call it: An update on something I could have sworn I wrote about but didn’t.

After some events in Tennessee that I did write about, a number of petitions were filed to seek to enact some changes to rules in Tennessee related to the admission of attorneys.

The first filing in the series involved a private activist group asking that something less than “full-time” employment as an attorney count when adding up the number of years required to be eligible for comity admission in our state. That proposal was the subject of widespread support in the public comments received and, ultimately, even the BLE weighed in to agree that such a change was needed.

In relatively short order thereafter, there was another petition by the BLE itself seeking to accept that kind of change and to advocate for “some” change with respect to how Tennessee evaluates and approves foreign applicants — i.e., people whose educational background involves a legal education outside of the United States. That issue was the very problematic issue that I did write about in the past.

The Board’s own proposal received responses and substantive input from a number of folks, including from the Tennessee Bar Association. The TBA’s comments were in the vein of asking the Court to be willing to really take a step back and look at the overall purpose for such disparate treatment and see whether there would be a better, fairer answer that could structure the rule so that — in instances and situations like those where it had to step in and correct wrongs — that kind of intervention wouldn’t be necessary in the first place. In fact, what the TBA proposed was that the Court put together a working group that could tackle the issue and come up with the best solution.

The TBA’s proposal was a bridge too far for the Board at least as to how a UBE score should be used, but otherwise the Board seemed to be in alignment with the TBA about the need to overhaul how foreign applicants were evaluated. Not surprisingly, to some extent, with that much arguing and controversy the proposal languished for what appeared to be more than a year.

Turns out though, that without any publicity of any sort, the Court did adopt a set of revisions to the relevant rules on October 31, 2023.

The good news is that the order did remove the requirement that law practice be full-time to count toward the five of the last seven years requirement for comity admission.

The bad news is that, from the best I can discern, the Court did not really do much in the way of actually fixing the problems with the rules when it comes to foreign applicants.

Instead, the Court adopted a rule which still requires a foreign applicant in addition to either (1) having obtained an LLM or (2) having been licensed in another U.S. jurisdiction for at least 5 of the 8 years preceding the application for admission to Tennessee to also submit a “Foreign Education Report.”

That report has to have a comprehensive course-by-course evaluation of the applicant’s foreign education and must address the equivalency of that education to an education in the United States.

To say that the Court deciding to keep this kind of regime in place is disappointing would be a real understatement. It would be disappointing even if such a report was something that a foreign applicant could obtain for free, but, they can’t, and this requirement only further adds layers of expense unnecessarily for applicants.

In hindsight, and given the outcome, it is less surprising that the Court took this action in such a quiet fashion that even ethics nerds like me were not aware of the order at the time it was entered.