BILL ANALYSIS
SB 1782
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Date of Hearing: August 8, 2000
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
SB 1782 (Morrow) - As Amended: June 29, 2000
SUBJECT : PRACTICE OF LAW: OUT-OF-STATE ATTORNEYS
KEY ISSUES :
1)SHOULD THE CALIFORNIA SUPREME COURT ADOPT RECIPROCITY RULES
PERMITTING OUT-OF-STATE ATTORNEYS TO BE ADMITTED TO THE STATE
BAR UNDER CERTAIN CIRCUMSTANCES?
2)SHOULD THE SUPREME COURT CONDUCT A STUDY OF THIS ISSUE?
SUMMARY : Expresses legislative intent that the California
Supreme Court adopt rules permitting admission to the State Bar
for certain out-of-state attorneys. Specifically, this bill :
1)Declares the intent of the Legislature that the California
Supreme Court adopt rules permitting attorneys licensed in
other states to be admitted to the State Bar under certain
circumstances. (This is commonly referred to as "reciprocity"
or "reciprocal admission.")
2)States that the Legislature also recognizes that the question
of reciprocal admission is a complex one, and requests that
the Supreme Court appoint a task force to study and make
recommendations regarding whether and under what circumstances
attorneys who are licensed to practice law in other states and
who have not passed the California State Bar Examination may
be permitted to practice law in California.
3)States that the task force study should consider all of the
following factors: (a) years of practice in other states; (b)
admission to practice law in another state; (c) specialization
of the attorney's practice in another state; (d) the
attorney's intended scope of practice in California; (e) the
admission requirements in the state or states in which the
attorney has been licensed to practice; (f) reciprocity with
and comity with other states; (g) moral character
requirements; (h) disciplinary implications; and, (i) consumer
protection.
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EXISTING LAW :
1)Regulates, under the State Bar Act, the practice of law in
this state and requires that applicants for a license to
practice law satisfy certain requirements, including passage
of a Bar examination. (Business and Professions Code section
6060 et seq . All further references are to this code.)
2)Provides, in the case of attorneys who have been admitted to
practice law in another state or in any United States'
jurisdiction, possession, territory, or dependency, that the
applicant must take and pass either the general or Attorney's
Bar examination. If the attorney has been an active member of
the bar in the other jurisdiction for four or more years, he
or she may opt to take the shorter Attorney's examination.
[The Attorney's exam includes an essay portion and a
performance test. The general exam additionally includes the
multiple-choice question format Multistate Bar Exam (MBE).]
(Section 6062.)
FISCAL EFFECT : The bill as currently in print is not keyed
fiscal.
COMMENTS : According to the author, this bill is needed because
California's restrictive rules governing admission to the bar
are "currently preventing competent experienced attorneys from
out of state from practicing in this state." As noted above,
this bill, in its current form, addresses the issue of
"reciprocity," which allows admission to the State's bar based
on comity with other jurisdictions having a reciprocal admission
policy, i.e., "we'll let your person in if you let our person
in."
Admissions criteria in other states compared . California is
reputed to have one of the toughest Bar examinations in the
country. California's test consists of three parts: essays,
the Multistate Bar Exam (MBE), and performance tests. Most of
the other states (all but three) require the MBE, like
California. However, unlike California, most states do not use
a performance test. In those that do, the performance tests are
only half the length of California's: two 90-minute tests
whereas California uses two three-hour tests.
If the standards for admission are lower in the other states
than in California, then valid consumer protection concerns may
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be raised. For example, Wisconsin admits any graduate of its
two law schools to practice without requiring passage of the bar
examination. West Virginia also had diploma privileges for
University of West Virginia graduates until about 1990 and
Mississippi for Ole Miss graduates until the mid-1980s. If,
like some of these other states, California were to allow
admission via diploma privileges, the 2,568 graduates from
California schools that failed the July 1999 Bar Exam would be
licensed to practice law. In comparison, 2,757 graduates from
California schools did pass, around 52%. As another comparison,
less than half, 43.8%, of the out-of-state attorneys taking the
Attorneys' Examination passed (138 of 315). As a whole, 4,089
of 8,040 of those taking the July 1999 exam passed, about 50.9%.
Recent passage rates for the July Bar exam have been 52.2% in
1998 and 62.9% in 1997. The February exam, which generally has
a higher percentage of repeat applicants, has had a pass rate of
41.1% in 1999, 40.0% in 1998, and 48.8% in 1997. (One reason
why California may have a "tougher" exam is that California
allows a broad range of applicants to take the exam, ranging
from a graduate of an ABA approved law school, to an non-ABA but
California licensed law school graduate, and to those who study
with a judge or attorney. The difficult exam is intended to
protect consumers by ensuring the competence of those licensed.)
"Pro Hac Vice" procedures allow in-state practice by
out-of-staters . Adopted in 1972, California Rules of Court,
Rule 983(a) provides:
A person who is not a member of the State Bar of California
but who is a member in good standing of and eligible to
practice before the bar of any United States court or the
highest court in any state, territory or insular possession
of the United States, and who has been retained to appear
in a particular cause pending in a court of this state, may
in the discretion of such court be permitted upon written
application to appear as counsel pro hac vice, provided
that an active member of the State Bar of California is
associated as attorney of record. No person is eligible to
appear as counsel pro hac vice pursuant to this rule if (1)
he is a resident of the State of California, or (2) he is
regularly employed in the State of California, or (3) he is
regularly engaged in substantial business, professional, or
other activities in the State of California. Absent
special circumstances, repeated appearances by any person
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pursuant to this rule shall be a cause for denial of an
application.
Thus, out-of-state lawyers may now appear in a particular cause
in California pursuant to Rule 983. Subdivision (c) of the Rule
provides for an application fee of up to $50, payable to the
State Bar, to defray the expenses of administration, including
any enforcement of the State Bar Act relating to the competent
delivery of legal services.
In Paciulan v. George , (9th Cir.Ct.App., No. 99-15687), a
supporter of SB 1782, Mr. Giannini, is representing a party
suing the California Supreme Court through Chief Justice George,
claiming that Rule 983 is unconstitutional because it allegedly
discriminates on the basis of residence, violates First
Amendment rights, and violates due process with its automatic
disqualification of sister-state attorneys from pro hac vice
admission without a hearing. These contentions were rejected by
the United States District Court for the Northern District of
California, and this case is on appeal.
ARGUMENTS IN SUPPORT : In support of the bill, the author cites
to a recent January 2000 California Bar Journal article by the
immediate past-president of the Bar, Andrew Guilford, in which
he argues that the time has come for California to embrace
reciprocity. Guilford wrote:
The spread of information technologies and transportation
advances have compressed the country and made possible,
easy economical and immediate communication to and from
virtually any location. The parochial boundaries of
dividing states are becoming impediments to work
efficiencies and the flow of commerce. Corporate in-house
counsel, exclusively federal court practitioners, lawyers
at mega-firms with branch offices worldwide, and others who
travel constantly to serve their clients, have long been
seeking a relaxation of what they view as unnecessary
barriers to enable them to practice from state to state.
(Quoting from "The Final Report of the Commission on the
Future of the Legal Profession and the State Bar, pages
71-72.)
Another supporter, Joseph Giannini (who is the counsel for the
plaintiff in the Paciulan v. George case described above),
writes that "[r]eciprocity will benefit the State Bar by
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providing fresh blood and new ideas, as well as increased bar
dues. Reciprocity will also benefit California consumers by
providing a larger pool of attorneys and perspectives from which
to choose." Giannini also argues that if out-of-state CPAs,
engineers, nurses, and doctors with a certificate as a diplomat
of a National Board of Medical Examiners are allowed to practice
in California through reciprocity, why shouldn't out-of-state
lawyers?
Prior Pertinent Legislation . SB 845 (Haynes, Stats. 1998, Ch.
29), and SB 1321 (Calderon, Stats. 1996, Ch. 866), both of which
make various clarifications to the procedures for out-of-state
attorneys to gain admission to the California State Bar.
REGISTERED SUPPORT / OPPOSITION :
Support
American Corporate Counsel Association
Two individual attorneys
Opposition
None on file
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334