HOUSE MEMORIAL 2

50th legislature - STATE OF NEW MEXICO - second session, 2012

INTRODUCED BY

Dennis J. Kintigh

A MEMORIAL

REQUESTING THE NEW MEXICO SUPREME COURT TO CHANGE THE CURRENT RULES BARRING ADMISSION FOR LAWYERS EXCEPT BY BAR EXAMINATION AND TO ADOPT THE AMERICAN BAR ASSOCIATION'S MODEL RULE ON ADMISSION BY MOTION FOR LAWYERS WHO HAVE ENGAGED IN THE PRACTICE OF LAW FIVE OUT OF THE LAST SEVEN YEARS AND MET CHARACTER AND FITNESS STANDARDS.

     WHEREAS, the state of New Mexico is one of only eleven jurisdictions in the United States that has not adopted any admission-by-motion procedure and requires experienced and competent lawyers to take a bar examination to gain admission to the state bar; and

     WHEREAS, the original rationale for requiring a bar examination was as a procedure for admitting new law school graduates and not for testing experienced lawyers who have 2

already taken and passed one or more bar examinations involving almost identical tests; and

     WHEREAS, every surrounding state, including most recently the state of Arizona, has adopted rules that allow lawyers from other jurisdictions to be admitted by motion; and

     WHEREAS, while the state of New Mexico does not allow lawyers to be admitted in the state without a bar examination, it does not impose the same requirement for other professions such as doctors, other medical professionals and certified public accountants; and

     WHEREAS, the American bar association has commented in its commission on ethics that the effect of requiring attorneys already licensed and experienced in legal practice to take another bar exam is an "erection of an excessive barrier" that is "lengthy, expensive and burdensome"; and

     WHEREAS, while reciprocity was not necessarily needed when the rules were originally promulgated because people maintained law offices in a single jurisdiction over their entire careers, geographic mobility and the increasing demands of clients, both businesses and individuals, that are relocating and expanding their need for multistate services require that lawyers and law practices be flexible enough to accommodate the reality of an increasingly "flat" world. States that do not adapt to this new reality lose potential businesses that otherwise may have moved to the state, or they lose businesses that leave the state for other jurisdictions with more favorable legal and economic climates; and

     WHEREAS, while states like New Mexico provide reasoning for their rules that relate to the state's legitimate need to regulate lawyers who may decide not to practice in the state or that out-of-state lawyers may have insufficient knowledge of state laws and procedures, there is no evidence from the forty jurisdictions that allow admission by motion that such concerns have any basis; and

     WHEREAS, experienced attorneys who have practiced in New Mexico for many years and who may for personal or financial reasons need to find legal employment in other states find themselves dealing with a burdensome and unnecessary requirement to take a bar exam in another state because of rules that prohibit them from admission by motion; and

     WHEREAS, the New Mexico board of bar commissioners recommended a form of admission by motion to the New Mexico supreme court in 2007, but that recommendation was opposed by the New Mexico board of bar examiners during the same year; and

     WHEREAS, in a June 2011 poll conducted by the state bar of New Mexico through research and polling, incorporated, distributed to all members of the state bar of New Mexico, seventy-seven percent of members say they support reciprocal licensing for New Mexico lawyers with other states and seventy-six percent support a rule change in favor of reciprocity; and

     WHEREAS, states that prohibit bar admission by motion face potential constitutional challenges, both state and federal, under the privileges and immunities clause and the first amendment;

     NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE STATE OF NEW MEXICO that the New Mexico supreme court adopt the American bar association's model rule on admission by motion; and

     BE IT FURTHER RESOLVED that copies of this memorial be transmitted to the New Mexico supreme court, the state bar of New Mexico, the New Mexico board of bar commissioners and the New Mexico board of bar examiners.

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