"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, October 6, 2015

If you are married to a government employee, you do not have to prove eligibility requirements for law licensing in Ohio. Then why regulate other attorneys in Ohio at all?

I continue to analyze the quirks and turns of attorney regulation in various states of the United States.

We are now in the State of Ohio.

If you are a lawyer married to a person working in the military, you do not need to pass the rigors of attorney licensing when moving to the State of Ohio.  Or at least that exemption may be introduced in the near future.

No, it is not my view, it is the view of the Task Force of the Ohio Supreme Court that recommended admission of military spouses who are lawyers in other jurisdiction in Ohio without examination.

Now, I would love to see marriage statistics of the dates of marriage of out-of-state attorneys married to the military personnel since such an exemption provides a real financial incentive for out-of-state attorneys to marry military personnel in order to be able to save time, money and effort in skipping Ohio bar exam and verification of knowledge and skills.

I do understand that for a military family where one spouse is transferred from place to place across the country, being tied to one location where the other spouse is licensed presents a problem, because the lawyer spouse will have to jump additional licensing hurdles each time the couple is transferred.

Yet, I would like to remind my readers that, with all due respect to the military (and members of my own family were and are going to be in the military), military service in this country is by contract, it is voluntary, and it is a paid work.

Yes, it is dangerous, but so is the work of a police officer, a firefighter, an emergency rescuer.

And, many families, including families where one of the spouses is a lawyer, get offers of transfer to another region of the country, often offers that would benefit the family immensely.

Or, in the alternative, some families have to move for reasons unrelated to financial benefits or career choices, but due to an illness in the extended family or necessity for a different climate or medical treatment for a member of the family.

Yet, those most honorable considerations for moving to another state are not considered as grounds to relieve out-of-state attorneys transferring into the State of Ohio from requirements to prove their skills, which are meant to protect the public from poor quality of legal services.

I must mention here, as a disclaimer that I never practiced in Ohio and do not intend to do so, even though nobody can ever predict the future.

I also should mention that there is no automatic "reciprocity" in Ohio with other states, and an attorney licensed in another state may still have to satisfy certain additional requirements before that attorney is allowed to practice in Ohio:

If the image is too small, I will repeat what it says, these are the requirements of the Supreme Court of Ohio for admission of attorneys without examination:

Admission to the Practice of Law in Ohio Without Examination


Pursuant to Gov. Bar R. I, Section 9, an attorney who is admitted to the practice of law in another jurisdiction may be eligible for admission to the Ohio Bar without examination. The Supreme Court reviews each completed application for admission without examination and may approve or disapprove the application. In addition to determining whether an applicant satisfies the Essential Eligibility Requirements for admission to the practice of law in Ohio, the court will consider whether the applicant meets the requirements of Gov. Bar R. I, Section 9. In addition to meeting minimum past practice requirements, each applicant must demonstrate to the satisfaction of the court that the applicant's “past practice of law is of such character, description, and recency as shall satisfy the court that the applicant currently possesses the legal skills deemed adequate for admission to the practice of law in Ohio without examination.”


To be eligible for admission to practice law without examination in Ohio, you need to satisfy these requirements:


Before you complete this application, you should read Rule I of the Supreme Court Rules for the Government of the Bar.
You may apply for admission to the practice of law in Ohio without examination if you meet all of the criteria listed in Gov. Bar R. I, Sec. 9(A). Please review these criteria before downloading and completing the application forms. 
Your Application for Admission to the Practice of Law Without Examination must be filed with the Office of Bar Admissions and include all of the following: 
  1. a completed Request for Admission Without Examination form; 

  2. the affidavit required under Section 9, Division (C)(1), executed on the form provided (i.e., Affidavit of Applicant); 

  3. a hardcopy of the completed Applicant's Questionnaire, printed and properly executed, and a copy of the Questionnaire; 

  4. three original (separately executed) National Conference of Bar Examiners (“NCBE”) Authorization and Release forms; 

  5. a Certificate of Admission by Bar Examination as an attorney at law from the jurisdiction from which you are seeking admission demonstrating that you have taken and passed a bar examination and have been admitted to the practice of law in that jurisdiction. You may seek admission from any jurisdiction in which you have been admitted by examination; 

  6. a Certificate of Presentation signed by an attorney admitted to practice in Ohio and duly registered pursuant to Gov. Bar R. VI

  7. your fingerprints taken by a sheriff, deputy sheriff, municipal police officer, or state highway patrol officer; 

  8. a certificate of good standing from each jurisdiction in which you are admitted to practice law, dated no earlier than 60 days prior to submission of the application; 

  9. an affidavit demonstrating that you have complied with Section 9, Division (A)(2), including a description of your practice of law, the dates of such practice, and if applicable, a description of your employment subsequent to ceasing such practice (i.e., Applicant's Affidavit of Past Practice); 

  10. an affidavit or affidavits confirming that you have engaged in the full-time practice of law for at least five full years out of the last ten years prior to submission of your application, as required by Section 9, Division (C)(5) (i.e., Employer's Affidavit(s) Verifying Past Practice); 

  11. evidence of receipt of a bachelor's degree from an accredited college or university (i.e., an original certificate or official transcript from the college or university); 

  12. evidence of receipt of a law degree from an ABA approved law school (i.e., an original certificate or official transcript from the law school); 

  13. a non-refundable application fee in the amount of $1,500, by certified check or money order made payable to the Supreme Court of Ohio; and 

  14. a non-refundable fee, by certified check or money order, for an NCBE character investigation and report in the amount indicated on the “Request for Preparation of a Character Report.”

And then, in addition, you will have to satisfy these "Eligibility Requirements":

Now, nearly all of the "eligibility requirements" are highly subjective, and some are requiring the applicant to satisfy an impossible task of proving a negative (No. 6).

Moreover, the demand to respect the legal profession in order to be licensed is completely unrelated to the goal of attorney licensing to protect the consumers from bad legal services.

I also fail to see why an out-of-state attorney who already went through the rigors of licensing in the previous state and thus has met all the above "eligibility requirements", must do it again here, nor do I know how a person with a Juris Doctor degree and a law license from another state should prove all of the above.

Yet, if you are married to a person in the military, you apparently do not have to satisfy ANY of these requirements, you will be admitted for the asking.

Let me note that the license that the Supreme Court of Ohio wants to grant to "military spouses" for the asking, bypassing all the above requirements that other attorneys must meet, is not of a limited character, to serve only military personnel, it is a statewide license.

Yet, protection of statewide consumers of legal services, knowledge of Ohio law and ability to serve all Ohio legal consumers with competence and integrity is somehow presumed by virtue of having a marriage license to an individual who chose to have contracted his services to the U.S. Military.

The exemption is what civil rights law calls both "underinclusive" and "overinclusive".

It does not cover attorneys not married to anybody, or who is a partner, but not a spouse, of a military employee, or who is married to somebody who is not a military employee, but who actually know issues pertaining to life in the military and/or military law and can help military personnel more than the knowledgeable-because-of-marriage attorney is.

Yet, it does cover attorneys who may not know anything about such law, who are unfit for reciprocal admission without examination on other grounds, such as competence or honesty or inexperience and who will be no value to the consumers, but their admission may be actually harmful.

In my view as a civil rights attorney, the exemption may be interpreted, as a point of civil rights and equal protection of laws, this way:

1) as discrimination against unmarried couples where one of the partners is in the military and where one of the partners is an attorney;

2) as discrimination against all out-of-state attorneys who want to come and practice in the State of Ohio without regard to their marriage status or status of employment of their spouse if they are married;

And lawsuits for discrimination may follow.

Moreover, if such an exemption on checking the qualifications of a "military spouse" as an attorney is recommended - and by the licensing court/agency no less, that also begs the question whether licensing is meant for consumer protection at all, or it is meant for market protection of the already licensed attorneys against newcomers, whether they are fit to practice law in Ohio or not.

And I must note that it was not consumer unions who suggested this little exemption, but professional organizations of attorneys and the association of military spouses, organizations which have nothing to do with consumer protection, but everything to do with material benefits from the exemption.

If the State of Ohio can allow one class of attorneys to practice law without checking their fitness to practice, where members of the class are selected on the grounds unrelated to their fitness to practice law in Ohio or their character, there is no reason to regulate the legal profession in Ohio at all, otherwise it is a blatant discrimination based on marriage and a presumption of character based on identity of a spouse employed by the government, as well as a violation of Privileges and Immunities Clause.

So, while providing exemptions to a narrow class of people, such an exemption will invite lawsuits that will cost Ohio taxpayers a pretty penny, and I am sure Ohio taxpayers will not be asked for their approval before such an "exemption" is put into place.

Not good, Supreme Court of Ohio.

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