Federal Law And Palau: Attorney Jurisdiction Limits

The ability of an attorney to practice law is dependent on their jurisdiction, with most states requiring a license to practice law. While some states have agreements with others that allow attorneys to practice in both, most states require attorneys to be admitted to the bar of that state. For federal law, an attorney must be admitted to appear in the district court where the matter is being handled, which generally requires a state bar license, but not necessarily from the state where the district court is located. This has caused some debate, with some lawyers taking the stance that they can practice federal law anywhere. However, this approach is risky, as demonstrated by a case in Michigan where a lawyer with only a Texas bar card was sued by the Michigan Bar for unauthorized practice.

Federal vs. state law

Federal law is created at the national level and applies to the entire United States, including all 50 states, the District of Columbia, and U.S. territories. The U.S. Constitution forms the basis of federal law and establishes government power and responsibility. On the other hand, state law applies to people who live or work in a particular state, commonwealth, or territory. Each state has its own system of laws and courts that handle a range of issues, including housing, family law, debt collection, and immigration.

While federal law generally takes precedence over state law in cases of explicit conflict, there are situations where state law prevails if it affords more rights or imposes more responsibilities on individuals. For example, if a state has legalized same-sex marriage or the use of marijuana, but federal law does not recognize these, the state law will take precedence within that state.

In terms of legal practice, attorneys typically need to be licensed in the state where they intend to practice law. This usually involves passing the bar exam in that state. However, there are exceptions. For federal law fields like bankruptcy and immigration, an attorney may not need to be admitted to the state bar where they are practicing. Additionally, some states have agreements with other states that allow attorneys to practice in both with certain conditions. Remote work has also introduced complexities, with the American Bar Association (ABA) clarifying that attorneys may practice law remotely in a jurisdiction where they are licensed, but they must ensure the remote jurisdiction allows this and not advertise themselves as authorized to practice law in that remote jurisdiction.

Overall, the interplay between federal and state law in the United States creates a complex legal landscape, with attorneys needing to navigate multiple jurisdictions and requirements to effectively serve their clients.

Practising law in multiple states

Firstly, for federal court, a lawyer must be admitted to appear in the district court where the legal matter is being handled. Admission to district court will generally require a state bar licence, but this does not need to be from the state where the district court is located. So, for example, if you are practising federal law, such as bankruptcy or immigration law, you may not need a state bar licence from the state in which you are practising. There has been considerable litigation and debate on this issue, and it remains unclear outside of the Sixth Circuit, where a lawyer practising bankruptcy law in Michigan with only a Texas bar card was sued by the Michigan Bar but later allowed by the Sixth Circuit to continue practising.

Secondly, some states have agreements with other states that allow attorneys to practise in both states. For example, the District of Columbia allows lawyers who have practised law for at least five years in any state to practise law in D.C. without taking the D.C. bar.

Thirdly, some states maintain reciprocity, meaning that, under certain conditions, they will accept a lawyer's existing credentials as proof of their capability, rather than requiring them to pass an exam. Most states that offer reciprocity require the lawyer to have a certain number of years of experience, usually at least five.

Finally, if you are practising law remotely, the American Bar Association (ABA) has stated that you may practise law in a jurisdiction where you are licensed. If you are practising in a jurisdiction where you are not licensed, you must ensure that this is allowed and you must not advertise that you are authorised to practise law in that jurisdiction. Most states allow attorneys who are not licensed in their jurisdiction to practise law on a limited basis through a practice known as pro hac vice, where they practise with an in-state attorney acting as local counsel.

State bar reciprocity

To achieve reciprocity in a new state, attorneys typically need to apply for admission to that state's bar. Each state has its own rules and requirements for admission, which may include:

• Practicing law for a minimum amount of time (usually at least five years)
• Completing continuing legal education courses
• Passing a background check
• Paying fees
• Completing a course on the rules of professional conduct in the new state

Some states have reciprocity agreements with other states, allowing attorneys licensed in those states to be admitted to the bar without taking the exam or completing additional CLE requirements. These agreements vary between states and may require attorneys to meet specific criteria. For example, Alabama offers reciprocity agreements with 27 other states, while Arizona offers reciprocity to attorneys from 34 states.

Even if there is no formal reciprocity between two states, some states allow out-of-state attorneys to transfer to the state's bar without taking the bar exam. These states typically have a process called "waiver on motion," "waiver," or "comity." To qualify for admission through waiver on motion, attorneys must meet certain requirements, such as being a U.S. citizen or permanent resident, being admitted to practice law in another state, and being in good standing in all states where they are admitted.

Pro hac vice

The American Bar Association (ABA) has stated that attorneys may practice law remotely if they are practising the law of a jurisdiction where they are licensed. However, if they wish to work remotely in a jurisdiction where they are not licensed, they must ensure that this arrangement is allowed and that they do not advertise themselves as authorised to practise law in that jurisdiction. Most states allow attorneys who are not licensed in their jurisdiction to practise on a limited basis through pro hac vice. To do so, attorneys must submit an application to the state bar before they can represent a client in a particular case or controversy in the state.

• Local counsel must vouch for the pro hac vice attorney's ability to learn the local law and comply with matters of local practice, including local rules.
• The pro hac vice applicant must swear to abide by the written rules and make a proactive effort to learn them.

In every jurisdiction, lawyers practising pro hac vice are subject to discipline by the jurisdiction in which they are visiting. While pro hac vice privileges can be beneficial, they also have drawbacks, including increased costs to the client, marketing challenges, and confusion with legal statutes.

While federal courts have progressed further than state courts on this issue, there is still no jurisdiction that has entirely removed barriers to full entry into its state bar association. All states require at least some form of application process for attorneys licensed in other jurisdictions to become fully licensed.

Federal court admission

Each U.S. state and jurisdiction has its own rules and standards for bar admission, and federal courts have additional steps for admission. Generally, lawyers must earn a Juris Doctor degree from an approved law school, pass a bar exam and professional responsibility examination, and undergo a character and fitness evaluation. Once all prerequisites have been satisfied, an attorney must formally apply for admission, which may involve taking an oath before a judge or notary public.

Some states have reciprocal agreements, allowing attorneys from other states to practice without taking another bar exam. Some states also allow attorneys who are not licensed in their jurisdiction to practice law on a limited basis through pro hac vice, where the out-of-state lawyer can practice with an in-state attorney acting as local counsel. However, this is usually only granted for a specific duration of time.

While there has been litigation and debate on the issue, even fields of law that are primarily federal, such as bankruptcy and immigration, may require a state bar license. Therefore, an attorney licensed in Palau who wishes to work with federal law must ensure they meet the specific requirements of the relevant district court for admission.

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