Friday, July 16, 2010

A partial reply to Mr. Gillette's partial defense of licensing requirements

 I try never to be cynical -- just skeptical. But it seems hard to deny that at least part of the reason we have bar exams and boards of legal examiners is to distort the market for legal services in favor of lawyers (over clients) by artificially reducing the supply of available lawyers. In fact, I’ve read a few interesting blog posts recently – see here and here, for example – about whether there should even be a bar exam. But I will accept your premise that there is also some other justification that actually serves the public good. Your “bulwark” against the “machinations of unscrupulous lawyers” suffices for the sake of argument. (After all, who ever heard of such a thing as an unscrupulous lawyer? Thank goodness we have the bar exam to protect us from such hypothetical monsters!)

I still don’t see why paying $800 to waive in to the jurisdiction and then actually moving to Illinois isn’t per se proof of a “plan” to practice law in Illinois. Take your “actor moving to Hollywood” analogy. What if the actor had already been making his living as an actor in New York for seven years? What if he had to pay $800 and establish residency in Hollywood before he was even allowed to audition for parts in Hollywood? In that scenario, wouldn't we be pretty sure that the actor is planning to, um, act in Hollywood? I think so. Now add the disturbing fact that the actor needs a California acting license in order to offer any acting services in California, but he cannot get the license until after someone hires him to start acting.

That is exactly analogous to the conundrum I was in: I'd been a working lawyer in Minnesota for at least five years (depending on whether you count a clerkship); I'd paid $800 to waive into the Illinois bar; I'd actually moved to Illinois. But I could not get a license to practice law here until, well, I actually started practicing law here! All because of this rule that I have definite and verifiable plans to actually practice law. You ask if there are any guidelines about what that means, and I can only tell you what it meant in my case: an accepted offer of employment as a lawyer in Illinois. It was not enough that I had received an offer; I had to have accepted it.

Again, it's just hard for me to come up with any other reason that a lawyer who has been practicing for more than five years in another jurisdiction would pay the $800 and actually move to Illinois except with the plan to practice law here. So I can't see any rational basis for the rule requiring a plan to practice in that situation.

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