2.01. Introduction

This topic addresses the ultimate goal of almost all those coming to law school: obtaining a license to practice law. We will focus on what is required to obtain a license and how various players fit into the licensing system. Hopefully, once we finish this topic you will not only know what you must do to become licensed, but also why.

As we discuss the licensing process, realize that it, like a number of areas associated with the law, is in flux. Groups have questioned everything from the educational requirement (should an applicant have to go to a law school accredited by the American Bar Association?) to the bar exam (should the bar exam be eliminated?  Should there be a uniform bar examination that will cross state lines?). Add to this concerns about the requirement that each applicant must have good “character and fitness,” and you can see how this seemingly straight forward process is rife with controversial issues.

The first thing you need to know is that regulation of lawyers is a function of the judicial branch.  It is the judiciary (through the highest court in the state) that has the authority to determine: who gets a law license (admission); the definition of the “practice of law” (what you can do with a law license); and who keeps a law license (discipline).  The judicial branch jealously guards this inherent authority.  It is a matter of separation of powers.  However, as you will see below in the readings, this does not mean that the legislature does not have a say in these regulatory issues.  In fact, there are statutes that set out what is required to obtain a law license and that define what it means to “practice law.”  If these decisions are truly an issue of judicial discretion, why do courts follow the statutes at all?  Why aren’t they declared unconstitutional?  The answer to these questions is two-fold.

First, the courts are willing to follow the statutes because they are seen as supplementing the court’s inherent authority, not interfering with the authority.  In other words, courts will follow the statutes so long as the court believes that it is not infringing on the court’s power to regulate the legal profession.  So, for example, when the California legislature passed a law changing the makeup of the committee that reviewed proposed sanctions against lawyers in California (giving the governor and some members of the legislature the power to pick some members of the body), the California Supreme Court upheld the law.[1]  The court could have said that it retained the right to select all of the committee members as a part of the court’s inherent authority to regulate lawyers and struck down the law as violating the separation of powers doctrine.  Instead, the court upheld the statute, finding that it did nothing more than supplement, not interfere with, the Court’s authority.  The California Supreme Court still had the final say regarding discipline of lawyers.  In other words, the statute did not go too far in interfering with the court’s authority to regulate, and therefore, it could stand.

The second reason courts are willing to allow these statutes to stand is because courts view them as merely suggestive.  If the court decides to exercise its inherent power to overcome a legislative requirement, they are willing to do so.  To give two quick examples: first, some courts have been willing to give a law license to an applicant that did not graduate from an ABA accredited law school – despite the fact that a statute clearly makes that a requirement to be licensed; second, legislatures have passed laws purporting to define what is the “practice of law.”  When courts are faced with a case that requires them to define what it means to practice law, they will consult the statute, but have no problem establishing a judicial definition.  You will see this in practice in Topic 5 (Unauthorized Practice of Law).  Keep this in mind as we go through the elements required to obtain a law license.        

[1] Obrien v. Jones, 999 P.2d 95 (Cal. 2000).