Want To Be Admitted Without Taking an Exam? Not So Fast

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By Richard M. Maltz —

This article was originally published October 23, 2020. 

Seeking Admission Without Examination As a Remote Practitioner

Most jurisdictions permit experienced lawyers admitted in another jurisdiction to be admitted to practice law without taking a Bar Examination as long as the lawyer admitted in the foreign jurisdiction satisfies certain prerequisites.  New York’s path to “Admission Without Examination” is no exception.  In broad strokes, New York requires the applicant to:

• Be over 26 years of age;
• Have attended an ABA approved law school;  and,
• Be admitted in another jurisdiction that similarly permits reciprocal admission for  New York lawyers.

See 22 N.Y.C.R.R. § 520.10.  However, there is a catch. You must have practiced law for five of the last seven years in a jurisdiction where you are admitted “immediately preceding the [New York] application” (the “Five-of-Seven Rule” or “Rule”).  An inability to satisfy the Five-of-Seven Rule will require an experienced lawyer to take the full bar examination.  No lawyer who has been practicing would want to take another bar examination for a number of reasons, including that taking a bar exam can be a difficult if not an insurmountable hurdle for busy or older lawyers.  However, a fast growing segment of the Bar are new victims of this archaic rule—remote practitioners.

The Five-of-Seven Rule has always created problems for lawyers simply because they have traveled or moved around during their career and have not always been situated in a state where they were admitted, did not attend an ABA approved  law school, or have taken off time from practicing during the prior seven years. Yet, the legal profession’s embrace of remote practice by lawyers from states where the lawyer is not admitted (e.g., a home office) can create a problem for lawyers seeking admission in other jurisdictions. Remote practicing has been hastened by COVID-19 and the court rule governing Admission Without Examination has not caught up to changes in the practice of law.

If an out of state bar applicants cannot satisfy New York’s Five-of-Seven Rule, they can attempt to convince an admissions committee that they satisfy the rule. However,  if the lawyer cannot  provide a straightforward argument to satisfy a  “check-the-box” approach, the Committee will inevitably inform the lawyer to obtain a waiver from the New York Court of Appeals.  Only New York’s highest court can determine that the lawyer’s experience satisfies the Rule or grant a waiver of any of the requirements for Admission Without Examination. See 22 N.Y.C.R.R. 520.14. If a waiver is sought, the rule demands that the lawyer establish that taking the bar would create a hardship. The Court seems to strictly adhere to the requirements of the Rule so the lawyer may have a difficult time convincing the Court to grant such a waiver.

A simple example is if a lawyer was admitted in Connecticut,  practices law for a Connecticut law firm, handles only “Connecticut matters” but lives in New York and works remotely 60% of their time on a computer from a New York home office.  An Admission Committee looking at the Rule may determine that since the lawyer is “practicing” from New York, the entire time the lawyer was working remotely for the Connecticut law firm will not count towards the Five-of-Seven Rule.  While this is an antiquated approach — you practice where you sit– it has been evoked by certain admission committees.

Some non-New York  Bar Committees, addressing an unauthorized practice of law issue, have opined that in the above example the lawyer is practicing “Connecticut law” and sitting in New York and practicing remotely is not the unauthorized practice of law.  This is not specifically applicable to the admission issue, but indirectly supports the proposition that remote practice from a state where the lawyer is not admitted should be deemed practicing in the state where the lawyer is admitted.  In other words, in our example, even though the lawyer is sitting in New York and remotely practicing, the entire time he is practicing Connecticut law should be applicable for the Five-of-Seven Rule. If this more modern approach is taken, the “Connecticut lawyer”  should not have to petition the Court of Appeals for an equitable waiver. However, for this to happen, admissions committees must accept and incorporate the realities of modern practice in their application of the Rule. Unfortunately,  the committees tend to conservatively follow the rules until they are presented with a new rule.  Consequently,  to have this approach accepted by the committees, the Court will need to amend its rules because the Court of Appeals’ waiver decisions are not public and do not create precedent for admission committees to follow.  At the present time there is no outcry to focus on this nuanced issue, but change is inevitable. Until then, waiver applications will continue  to necessary by remote practitioners.

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