Ninth Circuit Upholds Reciprocity Feature Of Arizona's Rule on Admission by Motion

The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...

By Joan C. Rogers

Dec. 11 — Arizona's court rule that allows admission without examination to practicing lawyers from states that extend the same privilege to Arizona-licensed applicants but requires other lawyers to take the bar exam is constitutional, the Ninth Circuit declared Dec. 8.

In an opinion by Judge Milan D. Smith Jr., the court held that the rule does not violate equal protection, the privileges and immunities clauses, the dormant commerce clause or the First Amendment.

The reciprocity requirement promotes Arizona's legitimate interests in regulating admission to its bar and ensuring equal access for Arizona-licensed lawyers to practice in other states, Smith said.

Although the court didn't mention it, a reciprocity condition for admitting lawyers without examination was upheld by another federalcircuit in Morrison v. Bd. of Law Exam'rs of N.C., 453 F.3d 190, 22 Law. Man. Prof. Conduct 301 (4th Cir. 2006).

Together, these decisions suggest that lawyers who want a “driver's license” approach to national practice by admission on motionmay have to work on getting the rules changed rather than challenging them in court—or else go ahead and take the host state's bar examination.

In 2012 the ABA officially urged 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. See 28 Law. Man. Prof. Conduct 509.

According to the ABA, half the states still have a reciprocity requirement in their rules governing admission on motion.

Not Discriminatory

The decision upholds Arizona Supreme Court Rule 34(f), which allows lawyers who meet certain conditions to be admitted onmotion 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 offer reciprocal admission to take the Uniform Bar Examination to gain admission to the Arizona bar. (See box.)

Arizona Supreme Court Rule 34(f)

Rule 34(f), “Admission on Motion,” provides in part:

“1. An applicant who meets the requirements of (A) through (H) of this paragraph (f)(1) may, upon motion, be admitted to the practice of law in this jurisdiction.

“The applicant shall:

“A. have been admitted by bar examination to practice law in another jurisdiction allowing for admission of licensed Arizona lawyers on a basis equivalent to this rule;

“A. [sic] either (i) have been admitted by bar examination to practice law in another jurisdiction allowing for admission of licensed Arizona lawyers on a basis equivalent to this rule or (ii) have been admitted by bar examination to practice law in one or more states, territories, or the District of Columbia, and have been admitted to and engaged in the active practice of law for at least five years in another jurisdiction or jurisdictions allowing for admission of licensed Arizona lawyers on a basis equivalent to this rule;

“5. The Court shall approve jurisdictions considered ‘reciprocal' to Arizona, and the Committee shall publish and make available a list of reciprocal jurisdictions.”


This suit challenging the reciprocity requirement in Rule 34(f) was filed by the National Association for the Advancement of Multijurisdiction Practice along with two 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 court rejected all of the plaintiffs' constitutional challenges and affirmed the district court's decision dismissing the claims onsummary judgment.

In particular, the plaintiffs did not convince the court that the rule violates the equal protection clause of the Fourteenth Amendmentby discriminating against lawyers admitted in states that do not have reciprocity with Arizona.

Applying rational basis review, the court said the rule serves two legitimate state purposes: regulating the Arizona bar and ensuring that Arizona attorneys are treated equally in other states. Moreover, the rule serves these purposes without being unduly restrictive given that lawyers seeking admission in Arizona have an alternative path to gain admission by passing the UBE, the court said.

Rights to Practice Not Infringed

The plaintiffs also didn't persuade the court that the rule violates the privileges and immunities clauses of Article IV, §2 by infringingon their right to practice law.

Arizona imposes the same bar admission requirements on its own citizens as it does on citizens of other states, Smith said. He added that the reciprocity requirement is closely related to the state's substantial interest in regulating its bar and ensuring that Arizona-licensed attorneys will be treated equally in other states.

The plaintiffs fared no better with their argument that the rule violates the privileges and immunities clause of the Fourteenth Amendment. That clause only protects rights accruing from U.S. citizenship, and the right to practice law is not one of those, the court said.

The court did not agree that the Arizona rule burdens the plaintiffs' right to travel. That right is not infringed, it said, because the ruletreats residents of other states the same way as it treats residents of Arizona.

Doesn't Unduly Burden Commerce

Nor does Rule 34(f) unreasonably burden interstate commerce by preventing lawyers from moving to Arizona and practicing thereon the basis of where they were licensed, Smith said.

Because the rule requires the same of Arizona citizens as it does citizens of other states, it does not favor in-state interests, the court found. It also said the rule arguably promotes commerce by encouraging other states to reciprocally recognize the license held byArizona attorneys.

Even if the rule were discriminatory, Smith said, a state can regulate the practice of law for public protection purposes. Any negative impact on interstate commerce is mitigated by the option of passing the UBE as an alternative means of admission, he added.

No Affront to First Amendment

The court also spurned arguments that the reciprocity requirement violates the First Amendment by infringing on lawyers' rights to free speech, to associate and to petition for redress.

Finding that the rule is a reasonable “time, place and manner” restriction on lawyers' speech, the court reiterated that Arizona has a substantial interest in regulating the practice of law within its borders and that lawyers have an alternate path to admission by passing the UBE.

The UBE option lessens any impact Rule 34(f) might have on lawyers' freedom of association, the court found. Arizona lawyers and non-Arizona lawyers are free to associate with bar members of other states whether or not the other states enjoy reciprocity with Arizona, it said.

On the right to petition, the court said the rule does not deny meaningful access to courts for lawyers from states that do not havereciprocity, because they may practice in Arizona courts by passing the UBE.

Judges Dorothy W. Nelson and Barry G. Silverman were also on the panel.

Joseph R. Giannini, Los Angeles, argued for NAAMJP and the other plaintiffs. Assistant Attorney General Eryn M. McCarthy, Phoenix, argued for the defendants. Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., argued for amicus curiae Public Citizen Inc.

Full text at


The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.


Copyright 2014, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.