Virginia lowers a barrier for out-of-state lawyers

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The Supreme Court of Virginia quietly has opened the door a bit wider for out-of-state attorneys seeking to practice in Virginia without taking the bar examination.

In a rule change last month, the court now allows lawyers from states that do not permit admission-without-examination to practice in Virginia by first becoming admitted in a more permissive jurisdiction, such as Washington, DC.

The move could be a boon to some Maryland lawyers – now unable to practice in Virginia without taking the bar exam – and possibly to some Washington law firms considering a presence in Virginia.

The Oct. 31 rule change follows reforms last year to Virginia’s admission-on-motion rules relaxing some requirements for outside lawyers seeking to waive the bar exam and practice here.

The change also comes amid legal challenges around the country to restrictions on lawyers’ ability to practice throughout the states and the call for liberalized cross-state opportunities championed by the American Bar Association and other groups.

Change came without notice

The Virginia high court gave no public notice of its plan to expand opportunities for admission on motion, nor did it seek comment from attorneys or the public.

The Virginia Board of Bar Examiners did not recommend the change, according to VBBE secretary W. Scott Street III.

“It is my understanding this action was the court acting on its own and was not based on the recommendation of the board one way or the other,” Street said.

Leaders at the Virginia State Bar said they had no prior knowledge of the court’s plan to liberalize the reciprocity rule.

Both Chief Justice Cynthia D. Kinser and Chief Justice-elect Donald W. Lemons declined comment through a court spokesperson in response to a request for further information.

The basic rule change was a simple one. The court removed just two words from the language on reciprocity in Rule 1A:1.

Instead of opening admission on motion to “Any person who has been admitted by examination to practice law before the court of last resort of any state or territory…,” the court removed the words “by examination.”

The effect is to allow admission-on-motion for any lawyer licensed in a jurisdiction where Virginia lawyers could apply for admission-on-motion, regardless of how the lawyer became licensed in that foreign jurisdiction.

The court made corresponding changes in the regulations for applying to Virginia law practice, but retained a policy statement regarding reciprocity:

“The purpose of the reciprocity requirement is to encourage other jurisdictions to grant the same privilege to Virginia lawyers.”

Pressure for change

Federal and state courts have come under pressure to remove barriers that keep experienced lawyers from practicing outside of their home state without passing additional bar exams.

For more than a decade, the American Bar Association has urged removal of barriers to multijurisdictional practice, including rules that require exams for all lawyer applicants and rules – as in Virginia – that limit waivers to lawyers from states with reciprocal opportunities.

Other groups have begun to weigh in.

Facing a lawsuit filed by the National Association for the Advancement of Multijurisdictional Practice, federal courts in Washington, DC, this year removed the reciprocity requirement for out-of-town lawyers to become admitted to local practice.

A similar suit targeting an Arizona reciprocity requirement was rejected by a federal judge, but is on appeal. With that suit pending, Arizona liberalized its rule for admission-on-motion.

The Arizona change had precisely the same effect as does the new Virginia change, according to Joseph R. Giannini, a board member of the NAAMJP.

Giannini said there are 24 states like Virginia that condition admission-on-motion on reciprocal privileges in a lawyer’s home state.

“It’s our contention they’re all unconstitutional,” he said.

Effect unknown

With the 2013 changes to Virginia’s admission-on-motion rule and now the removal of an additional barrier to outside lawyers, the justices “have substantially liberalized this rule over the past year,” said VSB Ethics Counsel James M. McCauley.

Nevertheless, admission to Virginia practice without examination is hardly wide open.

If a lawyer is in a non-reciprocal jurisdiction, he or she would still have to find a way into a nonrestrictive jurisdiction to be admitted in Virginia, McCauley said.

For a Maryland lawyer, that would mean first waiving into the DC Bar and then applying to waive in to Virginia practice.

Maryland does not admit outside attorneys to practice without taking an “out-of-state attorney’s exam.”

It’s a three-hour, open-book exam that includes questions on criminal and civil procedure and code provisions relating to courts and judicial proceedings, according to Jonathan A. Azrael, chairman of the Maryland State Board of Law Examiners.

“It’s the DC area that sort of benefits,” said lawyer George A. Weiss, a Maryland resident who is licensed in both Maryland and Virginia.

In comments to the Virginia court last year, Weiss wrote about the possibility of Maryland lawyers avoiding the reciprocity bar with admission through Washington. In an interview this month, he suggested the relaxed Virginia rule might increase pressure on Maryland to allow some form of admission-on-motion.

Attorney John R. Griffin, a Virginia resident with a Maryland office who practices in all three jurisdictions along the Potomac River, said the new Virginia change was “disappointing.”

Griffin favors required examination for any lawyer coming into a new state.

“I think they should take the exam; master the local law,” he said.

Now Maryland lawyers are likely to take advantage of the opportunity to expand their practice, he said.

“Why on earth wouldn’t you waive into DC and then into Virginia so you could take your business to Northern Virginia,” Griffin said.

For large Washington firms, it may not be so easy.

John G. Milliken, a lawyer who represents Northern Virginia landowners with office space to rent to lawyers, saw the change as a “positive step,” but something less than an open door for major law firms.

“I think there still are some major challenges for a downtown firm to relocate to Virginia – with the bar and otherwise,” Milliken said.

He noted the rule change returns Virginia to its reciprocity status of 2012, before the court removed controversial practice restrictions on waived-in lawyers.

The court last year ended a requirement that lawyers admitted on motion maintain a full-time law practice in a Virginia office. The court also shortened the threshold practice experience requirement from five years to three years.

Lawyers who seek admission on motion in Virginia must certify they have taken 12 hours of instruction on Virginia law.