“Primarily Engaged in the Active Practice of Law”: Are We Keeping Up with the Times?

This article originally appeared in The Bar Examiner print edition, Fall 2018 (Vol. 87, No. 3), pp 25–29.

By Sherry M. Hieber

More than 40 U.S. jurisdictions allow admission to the bar on motion without examination. These jurisdictions consider whether the applicants have been “primarily engaged in the active practice of law” for a certain period of time. Proof of prior practice experience essentially acts as a substitute for achieving a passing score on the jurisdiction’s bar examination, both methods of admission fulfilling the critical purpose of shielding the public from unqualified practitioners.

When I became an attorney in 1982, the options for legal practice were relatively straightforward. Newly minted attorneys became associates in law firms, clerked for judges, or became counsel to governmental agencies or corporations. Almost anyone who was admitted to the bar and wanted a job as an attorney could find one. Consequently, the rules to determine whether an attorney was “primarily engaged in the active practice of law” were easy to devise and easy to apply.

However, the legal profession has since changed. In particular, the economic downturn in the late 2000s, advances in technology, and globalization have affected the job market for new lawyers. Many of the attorneys admitted during the recession now have been in the workforce long enough to apply for admission on motion, but many have taken circuitous routes to reach the goal of becoming practicing attorneys. Perhaps it is time to consider whether the criteria for admission on motion are keeping up with the times.

Criteria Used in Considering Admission on Motion

Let’s take a closer look at how “primarily engaged in the active practice of law” is defined.

“Active Practice of Law”

The criteria that are most commonly used to determine the “active practice of law” are outlined in the ABA Model Rule on Admission by Motion:

• representation of one or more clients in the private practice of law
• service as a lawyer with a governmental agency, including military service
• teaching law at a law school approved by the ABA
• service as a judge
• service as a judicial law clerk
• service as corporate counsel

The practice must have occurred in a jurisdiction in which the applicant is admitted and authorized to practice or in a jurisdiction that permits such practice by a lawyer not admitted in the jurisdiction.1 The criteria are usually applied with reference to a time frame in which the active practice must occur. Many jurisdictions focus on five of the past seven years, or three of the past five years. (The ABA Model Rule, previously based on five of the past seven years, is now based on three of the past five years, following amendments to the Model Rule in 2012.2)

“Primarily Engaged”

In addition, the applicant must demonstrate that he or she has been “primarily engaged” in the active practice of law for the relevant time period. Jurisdictions apply various standards to determine whether someone has been primarily engaged in the active practice of law. Some jurisdictions require a certain number of hours per week, month, or year. Some focus on whether the job is the applicant’s primary source of income. In at least 10 jurisdictions, applicants must meet a geographic requirement and demonstrate that they have been practicing in the jurisdiction in which they are licensed.3 The ABA Model Rule for Admission by Motion is broader in terms of geographic location, simply requiring the practice to be in the jurisdiction in which the applicant is licensed, or in a jurisdiction that affirmatively permits the activity, even if the attorney is not admitted there.4

Changes in the Legal Job Market

Stability is no longer a word that can be applied to the legal job market. Globalization and the increased use of technology have influenced the practice of law. In addition, the economic downturn in the late 2000s precipitated an immediate and profound change in legal employment. The impact of the economic downturn has been well documented in prior issues of this publication. For instance, a 2013 article by James G. Leipold, Executive Director of the National Association for Law Placement, states that only 85.6% of the class of 2011 had jobs nine months after graduation, and only 65.4% of the class had jobs that required bar passage. The article cites an ABA analysis that suggested that only 54.9% of 2011 law school graduates reported jobs that were long-term, full-time, and required bar passage. The article notes that more graduates also had to compete with displaced lawyers for jobs.5

The ABA Task Force on the Future of Legal Education—created in 2012 to clarify the problems in legal education and identify ways by which those in the legal education system could address those problems—emphasized in its January 2014 Report and Recommendations that the employment market for attorneys had changed sharply in recent years, citing the impact of the economy on hiring practices, and also the increased use of contract labor and reliance on technology to increase productivity. The Task Force noted that these developments were likely to continue, with an ongoing impact on lawyer employment.6

Changes in How New Attorneys Are Using Their Law Degrees

As a result of these changes, those of us considering applications on motion have seen the range of jobs done with a law degree radically expand. New attorneys have developed different strategies to enter the legal field. Many took jobs that did not necessarily require a law degree, but the employer often made good use of the fact that an attorney was in the job, and the job consequently evolved.

Consider, for example, the following scenario. An attorney is laid off from a position as an associate at a large firm and eventually becomes in-house counsel for a corporation. But for a two-year period in between those jobs, he is hired at a major university as a policy manager for a research laboratory. The job description does not require a law degree, but the university has also hired an attorney to be his immediate supervisor, and the policy manager’s job evolves to include work that relies on his legal expertise. If the attorney were to apply for admission on motion in a jurisdiction whose rules consider work as in-house counsel to be the active practice of law, it would be reasonable to scrutinize his motion in order to determine the actual work that he performed during the two-year period as policy manager. The attorney notes that there was a complex web of federal regulations that had never been addressed at the institution and produces a 45-page guide that he wrote related to ethics, data access, data flow, HIPAA compliance, and other legal requirements. He further notes that he also supported the human resources team by reviewing policies and procedures for legal compliance. The jurisdiction could conclude that the work the attorney performed during his two years at the research laboratory was, in essence, work as in-house counsel, and allow the motion for admission.

Or consider an applicant who was employed as a full-time associate but had her position eliminated at the height of the financial crisis. Through tenacious networking, she was able to piece together contract jobs for small law firms in her area of expertise, and that was her only source of income but the work was not full-time. Eventually, she was able to find a full-time associate position with another firm. Would jurisdictions consider her to have been primarily engaged in the active practice of law during the interim period?

This scenario reflects another shift in legal practice. The number of lawyers performing legal work part-time while working in another job greatly increased as a result of the economic downturn. EMSI, a labor market analytics firm, has estimated that the number of attorneys drawing miscellaneous income from their legal practice (income that was not derived from their primary job) increased 25% between 2009 and 2013.7

In addition, a higher percentage of recent law graduates started solo law practices, having been unable to secure legal practice jobs elsewhere as opportunities dwindled as a result of the economic downturn. Prior to the recession, the number of new graduates entering private practice as solo practitioners was at about 3%, but it doubled for those who graduated during and after the recession.8 If these solo practitioners were unable to secure enough clients for full-time work in their own practice and ended up supplementing their income by doing contract work for other firms or by taking part-time, nonlegal jobs, this may present challenges in assessing whether such applicants have been “primarily engaged” in the active practice of law.

The Challenge in Applying Traditional Motion Criteria to the Current Legal Landscape

Thus, the challenge for those applying rules for admission on motion is to consider what is meant when an applicant is required to demonstrate that he or she has been “primarily engaged” in the active practice of law. Many of these applicants could make a passionate case that the full focus of their work during those difficult economic times—whether utilizing their legal skills in a job that did not necessarily require a law degree or performing legal work part-time—was to build a legal career. Often, in the case of part-time legal practice, applicants are able to demonstrate that their work became full-time after a slow start, or that they moved on to different full-time legal employment. Applying rules that focus solely on hours worked as an attorney per week may not provide the flexibility to consider whether, for instance, the development of a legal practice, and attempts to grow the practice during challenging economic times, can be considered “primarily engaged in the active practice of law.”

Additional Challenges: Telecommuting, Globalization, and the Changing Nature of Legal Jobs

Another development that has had an impact on admission on motion considerations is the increased mobility of lawyers—facilitated by more sophisticated technology, which allows attorneys to work from remote locations—and the increase in globalization. It is not unusual these days for an attorney to move to a new jurisdiction, or even abroad, and to continue practicing remotely in the jurisdiction in which he or she is licensed. In those jurisdictions whose admission on motion rules require the practice to occur within the geographic boundaries of the licensing jurisdiction, this has presented challenges and has resulted in denial of motion applications that would have otherwise been granted had the applicant, for instance, worked remotely from his or her home in the same jurisdiction.

Consider, for example, the following scenario. An attorney licensed and practicing in a jurisdiction that has reciprocity with a neighboring jurisdiction is also licensed by the U.S. Patent and Trademark Office. Her firm sends her to Japan to work with international clients on developing patents in the United States. She spends 100% of her time for a number of years practicing U.S. patent law before returning to the United States. She then takes a job with a firm in the neighboring reciprocal jurisdiction and applies to that jurisdiction on motion. In jurisdictions that require the “active practice of law” to occur within the jurisdiction in which the applicant is licensed, her motion application would likely be denied.

In a 2013 Massachusetts Supreme Judicial Court decision,9 the Court recognized the challenge presented in evaluating multijurisdictional practice when considering admission on motion. The applicant in question was licensed in New Jersey but had worked for three years as a full-time contract attorney in New York for a New York law firm, followed by seven months’ employment as a full-time associate attorney at another New York law firm, both prior to his being admitted in New York. The Massachusetts Board of Bar Examiners had denied his application because it considered the practice in New York to be unauthorized as the applicant was not licensed in New York at the time.

The Massachusetts Supreme Judicial Court reversed the decision, holding that the contract work performed by the applicant in New York was the authorized practice of law because the applicant was subsequently licensed in New York and New York did not consider his practice to be unauthorized. Further, the Court specifically did not adopt an interpretation of its motion rule that the practice must be physically located in the jurisdiction where the attorney is admitted to the bar in order to be credited to the “active practice” requirement.10

In its decision, the Court captured the dilemma facing many jurisdictions in applying their admission on motion rules:

This case highlights the legal and ethical complexities surrounding the multijurisdictional practice of law by lawyers who may not be licensed in every State where they need to work. Over the years, the practice of law has expanded from local to global. It is not uncommon for lawyers who are licensed in one State and practicing at a law firm or corporation in that State to be asked to provide legal services for the same law firm or corporation at its offices in another State, or even another country, where the lawyer is not licensed. Yet, there is little guidance from regulating authorities regarding the proper constraints of such practice. Plainly there is a burgeoning need for clarification of the boundaries of multijurisdictional practice vis-à-vis the unauthorized practice of law.11

Technology has not only increased attorney mobility but has changed the manner in which legal work is performed. E-discovery has become big business over the past 10 years. Job searches for e-discovery project managers reveal that bachelor’s degrees are required, but J.D.s are preferred. If an attorney serves as a project manager in charge of discovery projects for a large law firm, is that qualitatively different from the work of the firm’s associates?

Are We Keeping Up with the Times?

The changed legal landscape will continue to challenge bar admission authorities and Courts as they consider requests for admission on motion without examination. Because the changes in the legal profession are likely to be long-term, bar admission authorities have the task of considering whether their jurisdictions’ motion rules accurately capture what it means to be “primarily engaged in the active practice of law.” Globalization and technology have changed the nature of legal practice; in addition, many attorneys faced difficult circumstances to build a legal career during challenging economic times, and it is important to thoughtfully consider those efforts when applying rules for admission on motion.

Acknowledgments: This article had its genesis in a presentation at the 2018 NCBE Annual Bar Admissions Conference held on April 19–22, 2018, in Philadelphia, Pennsylvania. Thank you to my co-presenters, Bradley Skolnik, Executive Director of the Indiana Office of Admissions & Continuing Legal Education, and Marilyn Wellington, Executive Director of the Massachusetts Board of Bar Examiners, for their contributions to this topic.

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