A Bar Against Competition: The Unconstitutionality of Admission Rules for Out-of-State Lawyers

Abstract

The Article contends that the American Bar Association's Model Rule on Admission by Motion and similar state provisions currently under consideration place unconstitutional limitations on the interstate practice of law and should be revised. These rules often require lawyers, and especially junior lawyers, to re-take the full bar examination as a condition for admission in another state. Although many commentators have criticized these types of requirements as having the primary purpose and effect of protecting the financial interests of the in-state bar, the re-take rule has a more serious and unrecognized flaw. It often violates three constitutional provisions designed to prevent economic protectionism - the Article IV Privileges and Immunities Clause, the Fourteenth Amendment Privileges or Immunities Clause, and the dormant Commerce Clause. In short, this Article concludes that the Constitution requires reform in an area that traditionally has been too slow to evolve.

Keywords: multijurisdictional practice, unauthorized practice of law, dormant commerce clause, privileges and immunities clause, privileges or immunities clause, admission by motion

JEL Classification: J44, L84