Petition to NM Supreme Court on Lawyer Reciprocity

If you are an attorney licensed here in New Mexico and you support reciprocity, I encourage you to sign the following formal petition to the New Mexico Supreme Court. Please pass this along to other New Mexico attorneys.

If you or anyone wishes to sign the petition, please email us at: info@riograndefoundation.org

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 

 

NO._________

 

IN THE MATTER OF A PETITION

TO THE SUPREME COURT OF THE

STATE OF NEW MEXICO TO MODIFY

RULES OF ADMISSION TO PERMIT

RECIPROCITY TO EXPERIENCED

MEMBERS OF OTHER STATE BARS

THAT GRANT RECIPROCITY TO

MEMBERS OF THE NEW MEXICO BAR

          COMES NOW the undersigned members of the New Mexico Bar to petition the Supreme Court of New Mexico, pursuant to its authority under Rule 15-103, NMRA 2012 to prescribe admission requirements for the practice of law in the State of New Mexico, and respectfully requests the Supreme Court to allow the admission of experienced practitioners by motion from other states that grant reciprocity to members of the State Bar of New Mexico.

This motion is in response to member demand for the adoption of a multijurisdictional practice system of admission, the policies of surrounding states that allows for admission by motion, as well as, for the best interests of the citizens of the State of New Mexico to receive the best quality legal services by allowing competent and ethical attorneys to move to New Mexico and compete and grow both the legal market and the economy of the State of New Mexico.  As grounds for this petition, the undersigned petitioner states as follows the following justification.

 

I. Changes in the Current System of Admissions and Reciprocity would benefit both clients and attorneys in the State of New Mexico

 

New Mexico is one of only eleven states that has not adopted any admission- by- motion procedure and still requires lawyers to take a bar examination regardless of experience and competence.  As a result, New Mexico attorneys applying to practice in other states are denied access to admission by motion in most other states.  The result is that New Mexico attorneys are denied the ability to effectively represent their clients, and their clients are denied the proper level of freedom to select their lawyers.

The practice of law is becoming a regional rather than local marketplace.

Attorneys in New Mexico are denied the ability in border- states to serve the needs of their clients.  Since all of the surrounding border-states, including most recently Arizona in 2010, have adopted admission-by-motion rules, New Mexico attorneys are left unable to compete with attorneys in surrounding states.

In addition, New Mexico attorneys are denied the ability to join the bars of other states if they and their families want or need to move to other states for personal or economic reasons.  In our increasingly mobile society in which people and businesses move with greater regularity than in previous years, it is essential that experienced attorneys have the ability to move to other jurisdictions without the fear of being impeded by their inability to move their law license   Despite many years and possibly decades of experience, competent attorneys with spotless ethical credentials are denied the simple right afforded attorneys from other states because New Mexico requires a bar examination.  It is common sense that studying for a bar examination is burdensome and sometime prohibitive in terms of time demands and the other sacrifices needed to be made by attorneys who have already been fully vetted by a proven  track record. The American Bar Association has commented in its Commission on Ethics that the effect of requiring attorneys already licensed and experienced in legal practice to take another bar exam is an “erection of an excessive barrier” that is “lengthy, expensive and burdensome”. In most other business endeavors such restraint would be actionable.

Businesses that desire to move to New Mexico are also constrained by the failure of the state to enact an admission-by-motion rule.  Corporations will continue to be hesitant to move to our state if their entire legal staff is forced to take the bar examination.  Most experienced corporate counsel will have no interest in taking another bar examination after years of practice, leaving their employers to have second thoughts before moving to a state with such restrictive admission policies.  While doctors and certified public accountants can move to our state without taking another exam, attorneys are not provided similar opportunities.  Pity that poor trailing spouse of the doctor, CPA, military member, FBI Agent, et al, who happens to be a lawyer and wishes to reunite the family in New Mexico, only to find themselves hit with costly, redundant, burdensome, further disruptions in their lives and livelihood.

II. Clients will receive ample protection if admission by motion is adopted

One of the concerns often expressed by opponents of reciprocity is that it would fail to protect the citizens of the State from what have been characterized as unqualified or unscrupulous lawyers because we would have to rely on other states’ processes of evaluation.  As has been demonstrated by the forty states which have adopted some form of admission by motion, such concerns are wholly unfounded and without substance. These are raised mostly by those who fear competition or else those who may be unable to compete with experienced competent attorneys with proven track records from other jurisdictions. The Court’s role should be to oversee the best and most cost effective legal services to New Mexico consumers of legal services, above maintaining a protectionist regimen for those who fear competition.

The American Bar Association Commission on Ethics has issued two major reports on admission by motion (2002 and 2012).  The 2012 report, adopted by the American Bar Association House of Delegates on August 6, 2012, found that there have been approximately 65,000 lawyers who have been admitted by motion in the forty states which have adopted such procedures in the last ten years, and “there is no evidence that lawyers admitted by motion . . . are more likely to be subject to discipline, disciplinary procedures, or malpractice suits than lawyers admitted through traditional procedures.” American Bar Association, Resolution 105E, ABA Model Rule for Admission on Motion, Report, p. 3, August, 2012 (see attachment A).  Evaluation processes of other states have not been shown to be defective in terms of ferreting out unethical attorneys.  One of the roles of the Board of Bar Examiners is to conduct additional background checks to thoroughly evaluate such applicants (and charge them for the cost) to alleviate such concerns.

If there were a real concern that New Mexico should not trust the evaluation processes of other states, we would not allow legal services lawyers to practice in our states without taking a bar examination.

Another argument is that competency in the practice of law requires an attorney to pass the bar exam of the state the attorney in which the attorney is to be licensed.  The ABA report states there is “no evidence from disciplinary counsel or any other source that these lawyers have been unable to identify and understand aspects of the new jurisdiction’s law that differ from the law of the jurisdiction where those lawyers were originally admitted.” Id.  Unique laws to the state of New Mexico, such as Indian Law or Community Property, are also no impediment to an out-of- state’s attorney’s competence and can be readily covered in CLE courses if one desires such expertise.  In fact, the ABA report concluded that attorneys with experience in another jurisdiction may actually be able to better identify and understand  local laws of states than a recent law school graduate who has passed the bar exam. Id. at 4.   While a bar examination tests an applicant on general legal knowledge, an attorney’s track record with the state’s disciplinary authority establishes competence through the actual practice of law.

III. New Mexico Attorneys are protected

There is a concern that attorneys from other states, particularly Texas, will rush over to our state and flood the market.  In fact, the experience of other states, as shown in the statistics of the National Conference of Bar Examiners, demonstrates that no such mass influx is likely to occur.  A good measuring stick to evaluate this claim is in bordering states of Arizona and Colorado, which have much larger populations.  Arizona, which instituted its admission-by-motion rule in 2010, admitted 234 attorneys in 2010 and 183 in 2011 by motion, while over 500 attorneys were admitted by exam.  In Colorado, which has had an admission- by- motion provision for many years, there were 130 attorney admitted by motion in 2010 and 155 in 2011 while over 1000 attorneys were admitted by exam each year. See, http://ncbex.org/assets/media-files/statistics/2011Statistics.pdf .

It is clear that some attorneys feel that admitting attorneys from other states runs against the self- interest of attorneys in New Mexico, and the current rules protect them from competition.  Economic protectionism is a concern heard throughout the state and was expressed in a meeting of the Board of Bar Examiners in 2007 when it rejected an attempt to pass an admission-by-motion rule.   Not only is the rationale an unconstitutional basis for requiring a bar examination under the Privileges and Immunities Clause, the benefits of adopting admission-by- motion far outweighs any perceived negative impact.  In any case, the focus of the Supreme Court should be on providing the highest quality legal services to the people of New Mexico rather than protecting attorneys who are fearful of increased competition.

In his successful petition to the Supreme Court of Arizona to adopt a similar rule, Timothy P. Burr, who is now a Professor of Law at Arizona State University, stated that “the adoption of the proposed rule would permit . . . attorneys to compete regionally and nationally, gain access to admission to other jurisdictions, gain access to larger legal markets, relocate to other states, and benefit from an increased ability to practice across state lines.” (Petition in Support of Revision of the Rules for Admission to the Bar of Arizona, filed October 2, 2006, Supreme Court No. R-06-0017, p. 7)

IV. Admission by Motion is Supported by the Majority of Attorneys in New

Mexico

 

While there undoubtedly has been interest group steadfastly opposed to opening our legal market to competent and ethical out of state attorneys, the majority of New Mexico lawyers support reciprocity or admission by motion.  In a poll conducted in 2011 by Research and Polling Inc. for the State Bar of New Mexico, 77 percent of lawyers supported the concept.    As attorneys in the State of New Mexico gain greater understanding of this issue, the number and intensity of support has risen.

V.    The Court Already Allows Other State Bar Members to Represent the Poor  in New Mexico as well as Grants Reciprocity to  Mexican Attorneys to Practice in New Mexico as Foreign Legal Consultants.

Court already permits experienced out of state lawyers to represent poor people in New Mexico via selected non-profits. (Rule 15-301.2)  Surely, we would not permit substandard representation there, so this is not about the competence of other state bar members, many of them coming from states that require higher MPRE (ethics) scores than New Mexico does. Similarly, the Court voted unanimously in November 2012, in its Case Number 33,702, to reverse the Board of Bar Examiners in the Huerta matter, thereby granting reciprocity to a Mexican Attorney under a Foreign Legal Consultant program. With that recent decision, it begs the question as to what Old Mexico bar members have that experienced American attorneys from other United States of America States do not?

VI. Conclusion

The petitioners urge the Court to promptly bring New Mexico into the mainstream by adopting reciprocity rules on this important and defining issue of the legal profession, joining the forty other states who have adopted a form of admission-by- motion.  The petitioners respectfully urge the Court to adopt the rule proposed and adopted by the Board of Bar Commissioners in 2007 called “limited reciprocity” that would allow certain attorneys from states which would accept New Mexico attorneys to be admitted when they have practiced law five of the last seven years with certain restrictions (for a complete discussion of the issue in 2007 as well as a copy of the proposed rule, see attachment B – New Mexico Lawyer, vol. 3, no. 1 (2008)).

VII. Proposed Rule

1. An applicant who meets the requirements of this rule hereafter as determined by the Board of Bar Examiners, may upon motion based on reciprocity, be admitted to this jurisdiction without examination

a. Have been admitted to practice law in at least one jurisdiction which will admit New Mexico attorneys to it’s Bar without examination under provisions similar to this rule.

b. Have been primarily engaged in the active practice of law in one or more states, territories or the District of Columbia for five of the seven years immediately preceding the date upon which the application is filed.

c. Hold a professional degree in law, J.D. or L.L.B. from a law school approved by the Council of the Section of Legal Education and Admission to the Bar of the American Bar Association at the time the applicant graduated;

d. Establish that the applicant is currently a good member in standing in all jurisdictions where admitted and an active member in the reciprocal jurisdiction;

e. Establish that the applicant is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any other jurisdiction; and

f. Establish that the applicant possesses the character and fitness to practice law in this jurisdiction pursuant to the rules governing admission to practice in the State of New Mexico whether by examination, motion or this rule.

2. For purposes of this section, “practice of law” shall mean:

a. private practice as a sole practitioner or for a law firm, legal services office, legal clinic or similar entity, provided such practice was subsequent to being admitted to the practice of law in the jurisdiction in which that practice occurred;

b. practice as an attorney for a corporation, partnership, trust, individual or other entity, provided such practice was subsequent to being admitted to the practice of law in the jurisdiction in which the practice occurred and involved the primary duties of furnishing legal counsel, drafting legal documents and pleadings, interpreting and giving advice regarding the law, or preparing, trying or presenting

cases before courts, executive departments, administrative bureaus, or agencies;

c. practice as an attorney for the federal or a state or local government, state or federal agency or bar-related programs, provided that such employment is available only to licensed attorneys;

d. employment as a judge, magistrate, referee, or similar official for the federal or state or local government, state or federal agency or bar-related programs, provided that such employment is available only to licensed attorneys;

e. full-time employment as a teacher of law at a law school approved by the American Bar Association, whether or not such law school is located in New Mexico; or

f. any combination of the above.

3. Upon completion of the admission process, applicants shall be admitted upon motion by the Supreme Court of New Mexico.  The fee shall be established by the Board of Law Examiners.  No fees are refundable.

4. Upon admission, the admittee shall immediately be subject to all rules of mandatory continuing legal education, professionalism, and the disciplinary rules of the Supreme Court of New Mexico and annual dues to be paid to the State Bar of New Mexico.

5. Any attorney admitted pursuant to this rule shall be subject to the same rules applicable to attorneys who take and pass the New Mexico Bar Examination, including but not limited to: IOLTA, pro bono and case assignments or appointments by the various judicial districts in the State of New Mexico.  Failure to comply with these rules or accept such appointments shall result in disciplinary action.

 

Respectfully Submitted:

 

 

___________________

Patrick J. Rogers

Patrick J. Rogers, LLC

P.O. Box 26748

Albuquerque, NM 87125

505-938-3335

patrogers@patrogerslaw.com

 

 

Attachments:

Resolution 105E and Report

ABA Model Rule for Admission by Motion

American Bar Association House of Delegates

August 6, 2012

New Mexico Lawyer

Vol. 3, no. 1 (2008)

Letters to Court from Concerned Citizen

2733 Words

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