08 February 2005

Give Me Your Tired, Your Hungry, Your Yearning to Bill Hours

In a mealy mouthed sort of way, Law.com has joined the argument concerning admission of lawyers from other jurisdictions. An article this morning discusses admitting foreign-trained and -licensed lawyers in the US:

Richard Van Duizend, a staff member of the CCJ's International Agreements Committee, said that "[i]t's very much a states' rights question: What rights does the federal government have in committing states? The boundaries haven't been charted." Many states not only continue to forbid the registration of foreign lawyers, but continue to circle their wagons so tightly that out-of-state attorneys can hardly get in. Only a dozen states have so far embraced the 2002 expansion of Rule 5.5 of the ABA Rules of Professional Conduct, which gives out-of-state lawyers more latitude, but by no means unfettered access.

Leonard Post, "States Pressured to Admit Foreign Lawyers" (08 Feb 2005) (fake paragraphing removed for clarity).


Regulation of lawyers is not about "states' rights" any more than is regulation of wiretapping. In an average day, I have to consult the law of at least six different jurisdictions, frequently including one or more outside the US. I have to deal with parties not in my jurisdiction. No state bar exam is going to demonstrate my competence to do so. Instead, as the article later makes clear (although perhaps unintentionally so), state regulation of lawyers is about restricting competition from outsiders—that is, maintenance of monopoly power. The states don't do a damned thing to actually improve the quality of representation, essentially refuse to get rid of the bad apples, and have a tendency to apply "local rules" more stringently to out-of-state counsel (even when admitted pro hac vice) than against their own residents (in my experience, which while extensive is not definitive).

In Illinois in 2002, there were 75,421 attorneys currently registered. The ARDC and Supreme Court disciplined 132 attorneys that year, ranging from 6 reprimands to only 31 disbarments. That is neither particularly harsh nor particularly lenient compared across the states. Of that, less than one-third were fairly characterizable as "incompetence-driven." There were more validated inadequate-representation-of-counsel appeals that year, which applies only to criminal convictions!

Particularly given the complexities of transnational and international choice of law, it seems to me that restricting practice of foreign lawyers is actually inviting inaccurate counsel. Dealing with that, however, doesn't seem to be much of a priority.