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Qualified But Barred

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Qualified But Barred

Outdated licensing rules make it needlessly difficult for part-time lawyers to remain in the workforce. February 16, 2022
Politics and law

In addition to the expense of attending law school, most lawyers pay hundreds of dollars in examination fees, take intensive prep courses, and spend months studying before taking a state bar exam to be admitted to practice. Once lawyers have passed the bar in one state, most states provide some means for them to be licensed without taking another bar exam. But states can do more to alleviate this burden, especially as it affects part-time lawyers, for whom outdated licensing rules make it needlessly difficult to remain in the workforce.

I attended the University of Virginia law school together more than a decade ago with Elizabeth Anne Bellamy, now a lawyer and mother of two young boys. After graduating, Bellamy passed the Texas bar exam, clerked for two years for a federal judge, practiced law full-time at a private firm, and then left the firm to take care of her growing family. After her second son was born, she began practicing law part-time. When she moved to Virginia in 2019, she learned that the state requires applicants for admission without examination to have been practicing law for three of the preceding five years. That meant that she had to take the Virginia bar, because she had been practicing only for the past two years. She passed.

When she joined a law firm located in Virginia (near the Tennessee border) part-time, she found that she needed a Tennessee license to serve the firm’s clients based across the state line. The Tennessee supreme court requires that a lawyer be practicing full-time for five of the seven previous years to be admitted without examination. Bellamy did not meet this requirement; her petition to the Tennessee Board of Law Examiners outlining her qualifications and career path was denied. For Tennessee, then, lawyers who reduce their own workload to care for their family are no longer eligible for admission without examination.

The purpose of the bar exam is to make sure applicants are competent. Taking another bar exam wouldn’t make Bellamy a better lawyer, add to her knowledge of Tennessee law, or serve as a refresher on law in general. It wouldn’t tell Tennessee much more than what it could learn from knowing that she had passed two bar exams.

While most states don’t require full-time work, Tennessee isn’t alone in including a full-time practice requirement. Maryland mandates professional experience on “a full time basis” for ten years, or at least three of the five immediately preceding years. Ohio specifies that an applicant has “engaged in the practice of law” for at least five full years out of the previous ten years “on a fulltime basis.” In Missouri, an applicant must have “been engaged in the full-time practice of law” for five of the ten previous years; in Maine, the rule states that an applicant must have been “primarily engaged in the active practice of law,” which includes “representation of one or more clients in the private practice of law” on a “full time basis” for at least three of the five previous years.

The difference between a lawyer practicing full-time and part-time is the number of hours he works, not his expertise, experience, or skill. Often the hours gap is small. The American Bar Association Model Rule on Admission by Motion does not mandate full-time work. It requires that an applicant has “been primarily engaged in the active practice of law” for three of the five immediately preceding years. The “active practice of law” includes “representation of one or more clients in the private practice of law.”

Tennessee should revise its standards to follow the Model Rule, making it easier for part-time lawyers and lawyers who leave the workforce to care for family to get licensed. Bellamy passed her third bar exam last summer, but other lawyers in similar circumstances might not be as persistent. Many of those affected are women, who now earn half (or more) of law degrees each year. Of the 6.2 percent of lawyers at law firms working part-time, more than 70 percent are women. Overall, women make up two-thirds of voluntary part-time workers. About one in five working women worked part-time voluntarily in 2016.

Reforming state licensing rules would make it easier for part-time attorneys to practice. Tennessee has signaled its interest in this area by amending its rules in 2015 to make it easier for military spouses to obtain temporary law licenses. Then–chief justice Sharon Lee recognized the impact that this would have on women, in particular. “Because 95 percent of military spouses are women,” Lee said, “this change will lend even more support to females in our profession.” Tennessee and other states should consider how their admission requirements negatively affect part-time lawyers—competent professionals who deserve to be treated as such.

Photo: Nemer-T/iStock

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