(UPDATE, April 3, 2014: The Supreme Court has decided to allow reciprocity, see here).
When I graduated from law school in 2000, I took a job as a prosecutor in Philadelphia, and was therefore required to spend a great deal of time, and a significant amount of money, to study for the Pennsylvania bar exam.
After practicing there for several years, I wanted to return to New Mexico (which, I think we can all agree, is the best state in the country). If I had wanted to practice in almost 39 other states, I could have been admitted on motion, since I had already passed a bar exam and had practiced law. But New Mexico maintains an antiquated, thoroughly irrational requirement that one must take the bar exam to practice here. I had to spend significant amounts of money and time to take the New Mexico bar exam just so I could return home.
Fortunately, the New Mexico Supreme Court presently is considering a petition to discard this unnecessary barrier to practice, and we should all hope that the Supreme Court will allow New Mexico to enter the 21st Century.
What justification is there for forcing competent, ethical lawyers who have already demonstrated their knowledge of the law, and who have real-world experience in practice, to take the bar exam to practice here? None. There is no real justification that can withstand scrutiny.
Is the New Mexico bar exam difficult, such that it might be expected to weed out less qualified or intelligent applicants? No, our bar exam is one of the less demanding ones in the country. Is it necessary to force lawyers from other states to jump through hoops because we have community property laws, or because Indian law issues can sometimes arise? Nope. At least nine other states have community property laws, and while this may be shocking to some, Indian law issues actually can and do arise in other states. Is it necessary for the protection of the public? Not at all. Approximately 39 other states have reciprocity for lawyers, and the sky has not fallen down.
What arguments does the opposition have? You can read the comments submitted to the Supreme Court, and opponents do not rely on facts, but mostly appeal to vague notions, such as the fact that we have a small legal community, that lawyers are supposedly more civil here because they live here, that reciprocity will somehow harm the public, that forcing experienced lawyers to take a bar exam somehow demonstrates “pride” in the community, and that New Mexico is “special.” Others argue that out-of-state lawyers will not pay taxes here, or will spend their money elsewhere. Still others provide anecdotal evidence of a bad experience with a mean out-of-state lawyer.
Well, having practiced in Philadelphia, I can tell you that lawyers are no more civil or congenial here in New Mexico than they were in the big city. (In fact, I was rather shocked to deal with attorneys in New Mexico who used Rambo-style tactics that I had never seen in Philly.) There is no proof that the public will be harmed, and every reason to think that the public will benefit from having a larger selection of counsel from which to choose. If out-of-state lawyers don’t pay their taxes, the answer is that the State should prosecute them. If out-of-state lawyers earn income here and spend it elsewhere, how is that different from any other business that does so? Yet these businesses are welcomed because of the goods and services they provide. (Also, does this mean that New Mexico consumers should not be allowed to buy products over the Internet?)
The only real reason for opposing the rule change is sheer economic protectionism, which is not a rational justification.
It’s time for reciprocity.