SE Texas Record

Wednesday, December 11, 2019

Legally Speaking: Lowering the Bars

By John G. Browning | Nov 6, 2012

Browning new

Lawyers don’t just automatically become full-fledged attorneys the moment they receive that piece of sheepskin with “Doctor of Jurisprudence” on it.

Typically, there are more hurdles, such as passing a state’s bar exam, passing an ethics exam known as the Multistate Professional Responsibility Exam (MPRE), and being approved by a state bar’s authority for your moral character and fitness.

But there are many deviations from this typical path, particularly because of the sometimes mind-boggling differences in approaches among the 50 states.

For example, in some states it’s possible to become a lawyer without even going to law school.  Hearkening back to a bygone era in which aspiring lawyers “read the law” under the tutelage of an experienced practitioner, states including California, Vermont, Virginia and Washington allow applicants to sit for the bar exam without attending law school.

They do, however, have to complete a period of study under the guidance of a judge or practicing attorney for an extended period of time—usually considerably longer than the three years that law school takes.

And in one state—Wisconsin—one can become a licensed attorney without even taking the bar exam.  As long as the person graduates from one of the two ABA-accredited law schools in the state (the University of Wisconsin Law School and Marquette University Law School), that person can automatically gain admission to the Wisconsin bar.

In addition to the typical degree and bar exam requirements, most states demand that a would-be lawyer demonstrate good moral character.  This can be highly subjective.

Sometimes, it seems like a clear call, as when those with past criminal convictions apply for admission to the bar.  At other times, it’s less clear.  In some jurisdictions, having past bankruptcies or serious credit issues can trip up an applicant.

In 2009, a candidate who had passed the New York bar exam was nevertheless denied admission by the New York Supreme Court because of excessive indebtedness (he had nearly $500,000 in unpaid student loan debt).

“Good moral character” has sometimes proven to be a moving target, subject to the values of another time.  For example, until the state’s Supreme Court reversed the policy in 1979, Virginia denied bar admission to female applicants for living with a man out of wedlock.

In some states, even taking the bar exam presents some quirks.  Louisiana—a state that already stands apart for the peculiarities of its state law, the Louisiana Civil Code—also does things differently when it comes to its bar examination.

You see, because it posts the results of the bar exam publicly on the front doors of the Louisiana State Supreme Court Building and on the Supreme Court’s official website, Louisiana allows its applicants to choose a fictitious name so that they can be spared public humiliation if they fail. Pass, and your real name will be listed; fail, and your true identity remains a secret, your shame hidden by a pseudonym.

This year alone, the list of those who failed the Louisiana bar features some creative names, including fictional teen detective “Nancy Drew,” “Legally Blonde” lead character “Elle Woods,” “American Psycho” protagonist “Patrick Bateman,” “To Kill a Mockingbird” hero “Atticus Finch,” man of steel “Clark Kent,” and “Rongly Accused.”

And if you think chivalry is not dead in Louisiana, you’ll love the dated Southern charm of Kentucky’s bar requirements.  I recently spoke at a law school symposium in Kentucky, and was surprised to learn that a quaint 19th artifact lives on for aspiring Kentucky lawyers.

Section 228 of the Kentucky Constitution requires all officers of the state and all members of the bar to take an oath swearing that they “have not fought a duel with deadly weapons within this State nor out of it,” nor have they “sent or accepted a challenge to fight a duel with deadly weapons, nor . . . acted as second in carrying a challenge, nor aided or assisted any person thus offending.”

This provision was put in the state’s constitution back in 1849 in large part because previous laws against dueling hadn’t worked.  Since many of the Southern gentlemen who felt the need to duel were often those likely to run for office (some of whom also happened to be lawyers), lawmakers made sure not only to ban dueling but also to deprive duelers of “the right to hold any office of honor or profit in this Commonwealth.”

On an official Kentucky state government website, there is even a helpful article that traces the history of dueling in the state and the U.S. itself (including famous duels featuring such prominent historical figures as Alexander Hamilton and Aaron Burr, Andrew Jackson and Kentuckian Henry Clay), entitled “Kentucky and the Code Duello.”

So, in order to be a full-fledged Kentucky lawyer, it’s okay if you hate horse racing, frown upon mint juleps, and don’t know the words to “My Old Kentucky Home.”  You do, however, have to promise not to engage in a good old-fashioned, “pistols at 30 paces,” duel.

Because, after all, lawyers aren’t supposed to shoot or stab people—just bury them with paper and confound them with legalese.

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