# Is lawyer licensing necessary? **URL:** \ **Category:** Great Debates\ **Created:** [May 14, 2006, 1:39am UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694 "2006-05-14T01:39:26Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [May 16, 2006, 10:45am UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/21 "2006-05-16T10:45:10Z")
> [@Bearflag70](#): > > In the link from the OP, many comments posted complain that the state Bar is ineffective or that attorneys are a self-regulated fraternity. However, that goes to the issue of HOW to best regulate lawyers, not WHETHER to regulate lawyers. One could also advance the argument (and I am) that if “self-regulated fraternity serving the best interests of lawyers, not the public” is the best society can do with regard to state Bars, then one is probably better off without a state Bar. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [May 16, 2006, 1:15pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/22 "2006-05-16T13:15:12Z")
> [@Evil Captor](#): > > One could also advance the argument (and I am) that if “self-regulated fraternity serving the best interests of lawyers, not the public” is the best society can do with regard to state Bars, then one is probably better off without a state Bar. Why do you feel that way about state bars? If state bars are disbanded, what do you propose to perform their functions in their abscence? ---
**Author:** ![Bearflag70](https://avatars.discourse-cdn.com/v4/letter/b/8e7dd6/32.png) [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)\ **Post date:** [May 16, 2006, 3:34pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/23 "2006-05-16T15:34:55Z")
> [@Evil Captor](#): > > One could also advance the argument (and I am) that if “self-regulated fraternity serving the best interests of lawyers, not the public” is the best society can do with regard to state Bars, then one is probably better off without a state Bar. You could change the make-up of the Bar to include input from non-attorneys, maybe even a controlling vote. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 16, 2006, 4:43pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/24 "2006-05-16T16:43:55Z")
> [@Evil Captor](#): > > One could also advance the argument (and I am) that if “self-regulated fraternity serving the best interests of lawyers, not the public” is the best society can do with regard to state Bars, then one is probably better off without a state Bar. In Florida, and in every other state AFAIK, the Bar is an arm of the state Supreme Court; so it’s not just a guild of lawyers regulating themselves. It is that, but it is also under government oversight. The SC judges are lawyers, of course, but they’re also public officials. They are the ones who draft or at any rate approve every rule in the Code of Ethics. You might make an argument – and it is made from time to time – that the Bar should instead be under the Department of Business and Professional Regulation, like most other professions. But if it ain’t broke, why fix it? The Florida Bar is already quite vigorous in enforcing the ethical rules. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [May 16, 2006, 5:02pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/25 "2006-05-16T17:02:10Z")
> [@anu-la1979](#): > > . > > That’s actually inaccurate. Federal attorneys need only be barred in _a_ state, not necessarily the one in which they practice. I am barred in another state but practice in California. No it’s not, at least not as a general rule, and certainly not from a litigation perspective. I assume by “federal attorney” you mean an attorney that primarily appears in federal courts - district and circuit. The local rules for each district court are just that, local, but all that I’ve come in contact with require that an attorney either be admitted to that district court or pro hac in. In order to be admitted to any particular district court, as a general rule, you must be admitted to the state bar in which the district court sits – again, as a general rule. I am virtually certain you do not appear in matters in any California federal district courts without pro hac admission or a California law license – if you do, then California operates much differently than every other district court I’ve come in contact with – e.g. N.D. Ga., M.D. Ga., S.D. Ga., S.D. Ms., S.D.N.Y., E.D.N.Y., D. Del. Moreover, my advice concerned filing a disciplinary complaint, and directed the enquirer to contact the state bar to which the offending attorney was admitted. This advice is sound. Again, I would be stunned to learn that you are not admitted to practice in California but appear in federal court there without pro hac admission, nonetheless and that this does not constitute the unauthorized practice of law. I would ask for the local rule cite? ---
**Author:** ![anu-la1979](https://avatars.discourse-cdn.com/v4/letter/a/47e85d/32.png) [@anu-la1979](https://boards.straightdope.com/u/anu-la1979)\ **Post date:** [May 16, 2006, 5:26pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/26 "2006-05-16T17:26:32Z")
I don’t appear in federal court, I work for an executive agency as a transactional attorney under OGC and I can assure you that there are plenty of lawyers just like me who are barred in one state but work in another. The world of law doesn’t begin and end at the federal courts. Seeing as Uncle Sam himself signs my checks and regulates my activities I’m slightly amused that you’re calling me a liar. Here’s the FCC’s employment requirements website (this is not the agency I work for but it’s all the same). Note what they ask for in terms of bar requirements under Staff Attorney Requirements. [You can be a member of any bar](http://www.ogc.doc.gov/vacancies.html) ---
**Author:** ![anu-la1979](https://avatars.discourse-cdn.com/v4/letter/a/47e85d/32.png) [@anu-la1979](https://boards.straightdope.com/u/anu-la1979)\ **Post date:** [May 16, 2006, 6:04pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/27 "2006-05-16T18:04:31Z")
You should also check out the staff attorny requirements for the SEC, FCC, EPA, HUD, and the USDOJ. The general turn of phrase for whichever far flung office you’re applying to will be something like “you should be duly licensed and authorised to practice as a lawyer under the law of a state, territory or District of Columbia.” It’s a pretty sweet deal, actually. I can transfer to anywhere in the country and not have to sit for that state’s bar. ---
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [May 16, 2006, 6:12pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/28 "2006-05-16T18:12:50Z")
I do regularly appear in federal court o/b/o the federal government. I am licensed in IL, but can represent my agency in any federal district court of court of appeals. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [May 16, 2006, 6:21pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/29 "2006-05-16T18:21:35Z")
I also can practice in any state, but it’s on the basis of my membership in the patent bar (I pretty much only write and prosecute patent applications within the USPTO). I am a member of the MA bar, and will be a member of the WA bar after my swearing-in in a couple of weeks. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [May 16, 2006, 6:24pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/30 "2006-05-16T18:24:03Z")
> [@anu-la1979](#): > > I don’t appear in federal court, I work for an executive agency as a transactional attorney under OGC and I can assure you that there are plenty of lawyers just like me who are barred in one state but work in another. The world of law doesn’t begin and end at the federal courts. > > Seeing as Uncle Sam himself signs my checks and regulates my activities I’m slightly amused that you’re calling me a liar. > > Here’s the FCC’s employment requirements website (this is not the agency I work for but it’s all the same). Note what they ask for in terms of bar requirements under Staff Attorney Requirements. > > [You can be a member of any bar](http://www.ogc.doc.gov/vacancies.html) What Uncle Sam does or does not do with regard to your paycheck has very little to do with the concept of federalism at play in the licensing of attorneys by the states. It is very possible that your job does not fit the definition of “practice of law” as set forth by the bar of the state where you work – plenty of folks with law degrees are not practicing attorneys you know (the Big Four and Fortune 500 are full of them). Moreover, I do not think that I have called you a liar because you apparently do not appear as an attorney in federal court (re-read my post – I was forced to make this assumption by your use of the designation “federal attorney,” apparently you meant an attorney employed by the federal government). Finally, your statement that my advice to the poster unsure of how to report lawyer misconduct was inaccurate, given the context, is simply wrong, as a statement of the general rule regarding the sorts of attorneys that consumers are likely to come into contact with is that those lawyers are subject to discipline by the bar of the state in which they practice – it is your use of the term “federal attorney,” when you apparently meant attorney employed by the federal government, that is inaccurate. In conclusion, you’re not a liar, and you probably don’t “practice law” such that yours is not the unauthorized practice of law in the jurisdiction were you work. You do use a term to describe your work which is to say the least misleading. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [May 16, 2006, 6:26pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/31 "2006-05-16T18:26:58Z")
> [@Dinsdale](#): > > I do regularly appear in federal court o/b/o the federal government. I am licensed in IL, but can represent my agency in any federal district court of court of appeals. I appear in various districts all the time too, on a pro hac basis. I will admit in the face of these responses that there may indeed be an exception for attorneys representing the U.S. in federal court that I am not aware of. But with respect to my comment to the person wishing to report lawyer misconduct, I think it an irrelevant exception. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [May 16, 2006, 6:31pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/32 "2006-05-16T18:31:01Z")
> [@ENugent](#): > > I also can practice in any state, but it’s on the basis of my membership in the patent bar (I pretty much only write and prosecute patent applications within the USPTO). I am a member of the MA bar, and will be a member of the WA bar after my swearing-in in a couple of weeks. you can practice as a patent attorney because there is a separate patent bar (the rules of which I am admittedly unfamiliar) but I defy you to appear in the district court of a state in which you are not admitted on a run of the mill federal question or diversity case, and I’d bet dollars to donuts I am not going to see you representing litigants in a Georgia Superior Court without local counsel and a pro hac admission. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [May 16, 2006, 6:32pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/33 "2006-05-16T18:32:21Z")
> [@Dinsdale](#): > > I do regularly appear in federal court o/b/o the federal government. I am licensed in IL, but can represent my agency in any federal district court of court of appeals. one of you government employed litigators, fight my ignorance – is there a standing order of pro hac admission in most district courts for attorneys representing the US? ---
**Author:** ![anu-la1979](https://avatars.discourse-cdn.com/v4/letter/a/47e85d/32.png) [@anu-la1979](https://boards.straightdope.com/u/anu-la1979)\ **Post date:** [May 16, 2006, 6:37pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/34 "2006-05-16T18:37:26Z")
I’ll be sure to note that all the attorneys who work for the USDOJ, US Attorney’s Office and through the Office of General Counsel for the FCC, Department of Commerce, US Dept. of Housing and Urban Development, Securities and Exchange Commission, Bureau of Land Management blah blah blah infinitum are not in fact “attorneys,” that despite the fact that they work for the federal government that they aren’t “federal lawyers” and in your estimation they in fact, do not practice law at all. Breathtaking. What do we all do, then? Better go collect my welfare check! I can’t be bothered to suss it out because I’ve been staring at this transaction all morning but logically it’s likely that attorneys for the feds are allowed to practice across jurisdictions in representing the federal government in legal matters through federal statute. ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [May 16, 2006, 6:41pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/35 "2006-05-16T18:41:16Z")
> [@Cliffy](#): > > I assume (and so far I’m right) that the only people who are going to respond to this thread are lawyers or folks disgruntled with the legal system. Neither of us are unbiased audiences. That said, I can’t imagine anyone being able to do even a half-assed job of lawyering without a lot of training; perhaps not exactly the training regimen that now prevails, but something, and a lot of it. One just has to look thru legal threads in GQ – the lawyers give good answers, and the non-lawyers, _even those who have done a lot of research_, mostly screw it up. (A few notable exceptions exist such as **Otto** and **Polycarp** , plus probably others I can’t recall off the top of my head.) > > –Cliffy I have an ex-BIL who sues people all the time. He makes a living at it. He has no college and is bi-polar. I believe that for certain things, all the certification and licensing is valuable, but for other more run-of-the-mill stuff, the average person can probably follow the rules and get himself safely through the legal maze. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [May 16, 2006, 6:43pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/36 "2006-05-16T18:43:06Z")
> [@anu-la1979](#): > > I’ll be sure to note that all the attorneys who work for the USDOJ, US Attorney’s Office and through the Office of General Counsel for the FCC, Department of Commerce, US Dept. of Housing and Urban Development, Securities and Exchange Commission, Bureau of Land Management blah blah blah infinitum are not in fact “attorneys,” that despite the fact that they work for the federal government that they aren’t “federal lawyers” and in your estimation they in fact, do not practice law at all. Breathtaking. What do we all do, then? Better go collect my welfare check! > > I can’t be bothered to suss it out because I’ve been staring at this transaction all morning but logically it’s likely that attorneys for the feds are allowed to practice across jurisdictions in representing the federal government in legal matters through federal statute. Are you joking? The term of art the “practice of law,” as in the proscription against the unauthorized practice of law, is defined state by state. Go find the bar rules for the state you were admitted in and give them a quick skim. I am by no means suggesting you don’t work or that you don’t do legal work, merely that your work might not fit the description of practice of law such that you would not be violating the bar rules in the jurisdiction where you work. I have admitted that I might be unaware of an exception for attorneys employed by the federal governemnt and have asked for a heads up in that regard. ---
**Author:** ![anu-la1979](https://avatars.discourse-cdn.com/v4/letter/a/47e85d/32.png) [@anu-la1979](https://boards.straightdope.com/u/anu-la1979)\ **Post date:** [May 16, 2006, 6:59pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/37 "2006-05-16T18:59:11Z")
Alright, I found it for ya. I’m incensed, incensed I tell ya, that I spend 120K of hard-earned funds and gold-sheafed business cards that read “attorney” but someone tells me I’m not really a lawyer. It’s in Augustine v. Dept. of Veteran’s Affairs citing the Cal bar’s determination on federal “non-attorneys” > [@](#): > > To the contrary, a 1994 memorandum issued by the Office of Professional Competence, Planning & Development of the State Bar of California indicated that the bar at least does not view section 6125 as covering federal administrative proceedings: **The State Bar takes the general position that where a non-member is permitted to practice before a federal court (district, appellate, admiralty) or a federal agency (INS, Patent Office), such individual is not engaged in the unauthorized practice of law while performing activities before such federal courts or agencies in California on behalf of clients** . ---
**Author:** ![anu-la1979](https://avatars.discourse-cdn.com/v4/letter/a/47e85d/32.png) [@anu-la1979](https://boards.straightdope.com/u/anu-la1979)\ **Post date:** [May 16, 2006, 7:06pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/38 "2006-05-16T19:06:20Z")
[Augustine v. Dept. of Veteran’s Affairs](http://caselaw.lp.findlaw.com/data2/circs/fed/043162p.pdf) > [@](#): > > Whether or not California law applies, it is quite clear that state law purporting to govern practice before a federal administrative agency would be invalid. It is long established that any state or local law which attempts to impede or control the federal government or its instrumentalities is deemed presumptively invalid under the Supremacy Clause. > [@](#): > > As a consequence, the Supreme Court and the courts of appeals have frequently invalidated state licensing requirements for federal employees and federal contractors. ---
**Author:** ![anu-la1979](https://avatars.discourse-cdn.com/v4/letter/a/47e85d/32.png) [@anu-la1979](https://boards.straightdope.com/u/anu-la1979)\ **Post date:** [May 16, 2006, 7:08pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/39 "2006-05-16T19:08:11Z")
[Augustine v. Dept. of Veteran’s Affairs](http://caselaw.lp.findlaw.com/data2/circs/fed/043162p.pdf) > [@](#): > > Whether or not California law applies, it is quite clear that state law purporting to govern practice before a federal administrative agency would be invalid. It is long established that any state or local law which attempts to impede or control the federal government or its instrumentalities is deemed presumptively invalid under the Supremacy Clause. > [@](#): > > As a consequence, the Supreme Court and the courts of appeals have frequently invalidated state licensing requirements for federal employees and federal contractors. > [@](#): > > But nothing in section 530B suggests that government attorneys must abide by state licensing requirements. To the contrary, 28 C.F.R. § 77.2 (which is referred to by section 530B© for the definition of “attorney for the Government”) explicitly rejects the proposition that government attorneys must comply with state licensing requirements. The regulation states that the “phrase state laws and rules and local federal court rules governing attorneys . . . . does not include . . . [a] statute, rule, or regulation requiring licensure or membership in a particular state bar.” 28 C.F.R. § 77.2(h) (2004). Thus, while government attorneys must abide by the ethical codes of conduct of each state in which they perform their services, they do not have to be licensed by those states to practice law. So am I still not a lawyer? ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [May 16, 2006, 7:11pm UTC](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694/40 "2006-05-16T19:11:57Z")
> [@anu-la1979](#): > > Alright, I found it for ya. I’m incensed, incensed I tell ya, that I spend 120K of hard-earned funds and gold-sheafed business cards that read “attorney” but someone tells me I’m not really a lawyer. > > It’s in Augustine v. Dept. of Veteran’s Affairs citing the Cal bar’s determination on federal “non-attorneys” > > . interesting, but it leaves this question, “permitted to practice before a federal court” how? By pro hac admission, by statute? You make to much of my statement regarding the term the “practice of law” and you shouldn’t be incensed. [Previous page](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694.md?page=1) [Next page](https://boards.straightdope.com/t/is-lawyer-licensing-necessary/356694.md?page=3)