Limiting Admission on Motion to Lawyers From States With Reciprocity Is Not Illegal

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By Joan C. Rogers  

Sept. 23 -- Arizona's rule that allows admission on motion to lawyers from states that extend the same privilege to Arizona-licensed applicants but requires other lawyers to take the bar exam is not unconstitutional, the U.S. District Court for the District of Arizona concluded Sept. 19 (Nat'l Ass'n for Advancement of Multijurisdiction Practice v. Berch, 2013 BL 252036, D. Ariz., No. CV-12-1724-PHX-BSB, 9/19/13).

Magistrate Judge Bridget S. Bade held that the rule does not violate the First Amendment, the privileges and immunities clauses, the dormant commerce clause, or the equal protection and due process clauses. The rule promotes Arizona's legitimate interests in regulating admission to its bar and ensuring reciprocal access for Arizona-licensed lawyers to practice in other states, Bade found.

Arizona's rule conditioning admission on motion upon reciprocity “is rationally related to Arizona's legitimate interest in regulating its bar and seeking to ensure that attorneys licensed in Arizona will be treated equally in states having reciprocity with Arizona.”


Magistrate Judge Bridget S. Bade

Although the court did not mention it, the ABA officially urges jurisdictions that have adopted admission by motion procedures to eliminate any restrictions that do not appear in the Model Rule on Admission by Motion--which omits a reciprocity provision.

Lack of Standing

The decision upholds Arizona Supreme Court Rule 34(f), which allows lawyers who meet certain conditions to be admitted on motion if they are licensed in a state having reciprocal admission rules for Arizona lawyers. The rule requires attorneys admitted to practice law in states that do not have reciprocal admission rules to take the Uniform Bar Examination to gain admission to the Arizona bar.

This suit challenging the reciprocity requirement in Rule 34(f) was filed by the National Association for the Advancement of Multijurisdiction Practice along with several lawyers who are ineligible for admission on motion because they are licensed in states that do not have reciprocal rules for admission on motion. The NAAMJP has filed numerous challenges on a variety of grounds to state and federal bar admission requirements, Bade noted.

On a threshold issue, the court ruled that the NAAMJP did not have standing to challenge the admission on motion rule. Rule 34(f) does not implicate the group's political speech or any infringement of its First Amendment rights, and the NAAMJP did not show that its unnamed members who were allegedly harmed by the rule were unable to protect their own interests, the court said.

On the other hand, the court found that various jurisdictional requirements and immunity doctrines do not prevent a ruling on the individual plaintiffs' facial challenges to the rule.

On the merits, the court rejected all of the lawyers' constitutional challenges and granted summary judgment for the defendants.

Not the Only Way In

The court held that the reciprocity requirement in Rule 34(f) does not impermissibly infringe on lawyers' First Amendment rights to free speech and association, and to petition in a public forum.

Bade rejected the lawyers' arguments that the rule discriminates on the basis of viewpoint and that it is overly broad. Admission on motion is not the only method of admission to the Arizona bar, and states have a great interest in regulating lawyers and bar admission, Bade said. The rule is a reasonable “time, place, and manner” regulation, she said.

Even if the rule could be viewed as a prior restraint on a lawyer's ability to express himself in the form of litigation, it uses objective standards that are amenable to judicial review, and it does not permit licensing decisions at the whim of the Arizona Supreme Court, the court said.

The court also said the rule neither compels lawyers to associate with reciprocal states nor abridges lawyers' freedom to associate with nonreciprocal states. Arizona provides other paths than admission on motion for gaining entry to its bar, Bade reiterated.

Regarding the right to petition, the court found that the rule does not deny lawyers meaningful access to the courts. Lawyers who are ineligible for admission on motion because of the reciprocity requirement may still bring their claims in Arizona courts as litigants, Bade noted.

No Burden on Travel or Commerce

The plaintiffs did not fare any better with their argument that the rule violates the privilege and immunities clauses of Article IV, §2 and the Fourteenth Amendment by forcing them to take the Arizona uniform bar examination although they have already passed another state's bar exam.

Arizona's rule does not discriminate against out-of-state citizens on its face or as applied, the court said. It applies equally to Arizona residents and nonresidents who seek admission to the Arizona bar on motion, Bade said.

Nor does Rule 34(f) restrict lawyers' right to travel, the court said. It actually promotes travel by easing admission requirements for some out-of-state lawyers, Bade said.

For similar reasons, the court rejected the argument that the rule unreasonably burdens interstate commerce by disqualifying certain experienced lawyers from admission on motion depending on prior state licensing.

To the contrary, Bade said, Arizona's rule encourages multistate practice and thus promotes commerce among states. The rule not only serves the state's legitimate interest in regulating the practice of law for public protection purposes but also effectuates the state's public interest in encouraging other states to admit Arizona attorneys on similar terms, Bade said.

Equal Treatment

The lawyers also did not convince the court that the rule violates the equal protection clause. The rule “is rationally related to Arizona's legitimate interest in regulating its bar and seeking to ensure that attorneys licensed in Arizona will be treated equally in states having reciprocity with Arizona,” Bade stated.

Nor does the rule violate due process merely because the bar exam allegedly does not conform to standardized testing requirements, the court ruled. The lawyers did not explain how those standards are applicable to the bar exam or how Arizona's alleged failure to comply with them gives rise to a due process claim, Bade said.

Grant J. Savoy, Solouki & Savoy Law, LLP, Los Angeles, and Joseph R. Giannini, Los Angeles, represented the plaintiffs. Eryn M. McCarthy, Office of the Attorney General, Phoenix, represented the defendants.

To contact the reporter on this story: Joan C. Rogers in Washington at

To contact the editor responsible for this story: Kirk Swanson at

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