Reciprocity rule is repealed

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Wisconsin now has the most permissive standards for admitting out-of-state attorneys to the bar in the United States.

Under amendments to SCR 40.05, effective Jan. 1, the Board of Bar Examiners (BBE) no longer varies the requirements for admission based on what rules the applicant’s native state imposes on Wisconsin attorneys.

Under the new rule, an attorney can be admitted to practice if he has been substantially engaged in the active practice of law in any state for three years within the last five years prior to applying for admission.

Previously, eligibility for admission was limited, providing that, “practice in a jurisdiction that does not grant bar admission to attorneys licensed in Wisconsin on the basis of practice in Wisconsin shall not be eligible for admission on proof of practice elsewhere.”

Justice David T. Prosser dissented from the Supreme Court’s decision to modify eligibility.
“In my view, the change in the reciprocity provisions was pushed through without adequate documentation and without serious consideration of the consequences,” Prosser wrote. “The fact that the petition was formally supported by the State Bar of Wisconsin raises questions about whether the bar leadership has lost touch with its members.”

But former State Bar President Steven A. Levine defended the rule change as fair. “The idea is that admission should be based on individual qualifications, not the rules of other states,” Levine said in an interview. “Why penalize someone just because of the laws of their state? Both the BBE and the State Bar supported it because we thought it was the fair thing to do.”

Levine also argued that the reciprocity requirement violates the dormant Com-merce Clause by interfering with interstate commerce based on a state’s disagreement with other states’ laws.

However, the only recent case interpreting state requirements for admission of lawyers based on out-of-state practice upholds reciprocity requirements. Morrison v. Board of Law Examiners of the State of North Carolina, 453 F.3d 190 (4th Cir. 2006). A district court judge in North Carolina held that a rule similar to Wisconsin’s old rule was unconstitutional, but the Fourth Circuit reversed.

Levine, speaking in his private capacity rather than for the State Bar, supported the rule change at a Supreme Court administrative conference on Nov. 18.

He also said he hopes the new rule will set an example for other states.

“I hope it serves as a catalyst to other states to open up their rules, as well,” he said.

BBE director John E. Kosobucki, who presented the petition on the BBE’s behalf, could not be reached for comment prior to deadline.

No attorneys appeared at the hearing to object to the change, and no representatives appeared to speak on behalf of the bar itself. However the State Bar board voted 26-15 to support the petition and the bar submitted a letter to the court in its favor.

In his dissent, Prosser noted that 17 jurisdictions do not have any provisions for admission based on proof of practice elsewhere. Another 11 jurisdictions will admit attorneys based on practice elsewhere, but not those who were admitted to practice under Wisconsin’s diploma privilege.

Other states require either four or five years of practice in another jurisdiction, rather than the three Wisconsin requires.

Prosser wrote, “The free movement of attorneys from one jurisdiction to another might be a desirable objective if every jurisdiction played by the same rules. But they do not. This court gave no consideration to any strategy or plan to attack existing barriers to Wisconsin attorneys set up by other jurisdictions.”

In an interview, Wisconsin Supreme Court Commissioner Julie Rich said the rule change also affects admission of in-house corporate counsel, effectively reversing the Supreme Court’s opinion denying admission in In the Matter of Bar Admission of Mostkoff, 2005 WI 33.

Samuel Mostkoff had been practicing law for 29 years as in-house counsel, but in recent years, he had been practicing in Wisconsin, rather than Michigan, where he was a licensed attorney.

Because he was not practicing in the jurisdiction in which he was admitted, the Supreme Court denied admission in Wisconsin without passing the bar exam. Justice Prosser dissented from that holding.

Rich stated that amendments to subsec. (2) of the rule eliminate the technicality that in-house counsel have been practicing in the same jurisdiction in which they are licensed.