Saturday, July 10, 2010

Becoming Licensed in Illinois

I recently moved from Minnesota to Illinois. As part of this move, I had to endure the process of becoming licensed to practice law in Illinois, which culminated in my being sworn in by the Chief Justice of the Illinois Supreme Court on June 29, 2010. During this process, however, I ran into three potential roadblocks that I’d like to discuss.

First, not all of my service as a judicial law clerk in Minnesota counted toward the five years of “active practice of law” needed for admission on motion to the Illinois bar. Under Supreme Court Rule 705, service as a law clerk counts as the “active practice of law” only if having a law license was a requirement for the clerkship. Federal clerkships do not require a law license, at least at the outset. Fortunately, however, I did need a license to be eligible for a raise during my second year of clerking, so I was able to count that time toward the necessary five years of practice.

Still, it is hard to understand why the Illinois rules on attorney admissions punish lawyers who chose to begin their careers as federal judicial law clerks. These are competitive and prestigious jobs. Large law firms regularly recruit judicial law clerks and give them full credit (on the partnership clock) for the years they spent clerking. Illinois should give the same credit for the purposes of calculating an applicant’s “active practice of law.”

Second, I encountered a classic catch-22: I could not get admitted to the Illinois bar until I proved I had accepted employment as an attorney in Illinois—even though I could not apply for many jobs until I proved that I was already licensed as an attorney in Illinois. Supreme Court Rule 705(h) requires that an out-of-state attorney seeking admission on motion prove “definite and verifiable plans” to engage in the practice of law in Illinois. By the time I submitted my application paperwork, I had already signed a lease for a place in Evanston and had already received an offer of employment from a large Chicago law firm. But, because I decided not to accept that law firm’s offer, the Board could not recommend my admission. Under the Rules—at least as they were interpreted in my case— I was unable to move forward in the process of getting licensed to work as a legal employee in Illinois until I actually accepted an offer of legal employment in Illinois.

Obviously, 2010 was a terrible time to be looking for a legal job, and my lack of an Illinois license potentially made my chances even worse. Indeed, some of the jobs I was interested applying to would not even accept my application because I was not yet licensed, so my employment prospects were irrationally narrowed.

In the end, I was lucky enough to get an in-house job that did not require an existing license. Even so, the Rules put me in an aggravating and nerve-wracking position. I understand that the intent of these rules is to prevent out-of-state lawyers from getting an Illinois license without committing to the practice of law in Illinois. That is a defensible (though perhaps outmoded) policy. But the rule should not prevent a lawyer who actually lives in Illinois and otherwise qualifies for admission on motion from getting admitted to practice here. In other words, the fact that an out-of-state attorney has actually moved to Illinois and has paid $800 to apply for admission on motion should be proof enough that he or she plans to practice law here.

Third, in reviewing the rules of professional conduct in preparation for my new job as a general counsel, I came across a confusing inconsistency in the rules. Specifically, newly amended Illinois Rule 5.5 (effective January 1, 2010) adopts the new ABA model rule on multi-jurisdictional practice, which allows attorneys licensed in other jurisdictions to serve as in-house counsel for businesses without having to worry that they are engaging in the unauthorized practice of law. See Ill. R. Prof. Conduct 5.5(d)(1) (“A lawyer admitted in another United States jurisdiction . . . may provide legal services in this jurisdiction that . . . are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission . . . .”). But this is in tension with Supreme Court Rule 716, which allows “house counsel” (in-house attorneys) to apply for a special limited license, and which specifically states that such a license shall prevent in-house attorneys from being liable for the unauthorized practice of law.

The easiest way to reconcile the new Rule 5.5(d) with Supreme Court Rule 716 is to conclude that Rule 716 is now obsolete—at least for out-of-state attorneys. Rule 716 was instituted in 2004, apparently to give in-house counsel an easy way to comply with Illinois’s then-existing Rule 5.5, which made no exception for in-house counsel licensed in other states. Now that amended Rule 5.5(d) does explicitly state that out-of-state attorneys may serve as in-house counsel in Illinois without engaging in the unauthorized practice of law, there appears to be no reason why anyone who is fully licensed in another jurisdiction would apply for the limited license described in Rule 716. ((Rule 716 could still be useful for attorneys already licensed in Illinois, who can continue to practice law in-house for a reduced fee.)

Except that the commentary to the new Rule 5.5 adds a new layer of confusion. Paragraph 17 of the official commentary states:

If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer may be subject to registration or other requirements, including assessments for client protection funds and mandatory continuing legal education. See Illinois Supreme Court Rules 706(f), (g), 716, and 717 concerning requirements for house counsel and legal service program lawyers admitted to practice in other jurisdictions who wish to practice in Illinois.
Now, this commentary doesn’t specify exactly what “registration or other requirements” an in-house lawyer “may” be subject to, but the citation to Rule 716 certainly implies that a lawyer with an out-of-state license must nonetheless get the limited Illinois license described in that rule. But that makes no sense, since the only purpose of Rule 716, at least as it relates attorneys licensed in other states, is to allow them to work as in-house counsel in Illinois without engaging in the unauthorized practice of law—a concern that the new Rule 5.5(d) eliminates.

Another possibility is that although Rule 5.5(d) states in no uncertain terms that an out-of-state attorney may ethically provide legal services as an in-house lawyer in Illinois, such a lawyer would still be subject to statutory penalties under 705 ILCS 205/1, which states that “No person shall be permitted to practice as an attorney or counselor at law within this State without having previously obtained a license for that purpose from the Supreme Court of this State.” Thus, conceivably, an out-of-state attorney who is permitted to provide legal services under Rule 5.5(d) would still be subject to penalties under 705 ILCS 205/1 because he or she would not have “previously obtained a license for that purpose from the Supreme Court” of Illinois. The problem with this is that the penalty for violating 705 ILCS 205/1 is contempt of court. It is difficult to imagine that any court would hold an attorney in contempt for doing something that is explicitly permitted by the Rules of the Supreme Court itself.

If I were a judge interpreting the interplay between Rule 716 and Rule 5.5(d), I would hold that Rule 5.5(d) makes Rule 716 superfluous for out-of-state lawyers. But the commentary to the rule gives one pause. Although this issue does not directly apply to me—because I was going for the full Illinois license anyhow—it is certainly an issue that could use some official clarification.

This story has a happy ending. I am now a fully licensed (and employed) member of the State Bar of Illinois. I recognize that it’s presumptuous to make one of my first public acts as a member of the Illinois legal community a lengthy complaint. But sometimes it takes an outsider to recognize things that aren’t quite right. And, besides, it felt good to get this off my chest.

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