Efforts to enact a military spouse attorney licensing accommodation in California have been underway since the founding of the Military Spouse J.D. Network (MSJDN) in 2011. In the meantime, 33 other jurisdictions have adopted rule changes to reduce barriers to employment for military spouses in the legal profession. After seven years of building support, MSJDN was thrilled to see the State Bar of California take up the issue for consideration earlier this year. Unfortunately, the proposed Rule 9.41.1 advanced by the State Bar Trustees to the California Supreme Court contains several serious flaws which render it impractical for military families facing recession-level unemployment rates and unfounded stigma during job searches.
MSJDN opposes the rule in its current form and calls upon the California Supreme Court to consider the following concerns:
1) Special admission does not allow time in practice to accrue for future admissions: A military spouse attorney would not accrue “time in practice” under Rule 9.41.1, which bars any claim to be a practicing attorney. A fundamental challenge for military spouses in the legal profession is accruing years in practice, not only for career advancement, but also for admission in subsequent jurisdictions requiring a requisite number of years in practice in order to utilize admission on motion. Many states require “three out of five” or “five out of seven” of the past years to be in active practice in order to qualify for admission without examination. Thus, military spouses will effectively be compelled to sit for the exam, even with the passage of this rule, in order to ensure their time practicing in California is credited when they inevitably relocate and seek admission in the next jurisdiction.
2) Overly burdensome supervision requirement undermines the rule: Supervision requirements as contained in the current proposal stigmatize military spouses already facing an estimated 28 percent unemployment rate. The Model Rule put forth by MSJDN explicitly provides that attorney spouses will be subject to the same rules and regulations, including the rules of professional conduct, applicable to all other state-barred attorneys. The supervision requirements in the current proposal should be removed, or at a minimum, rewritten to be less burdensome so that employers are encouraged rather than deterred from hiring military spouses.
3) Job hunting without an approved license puts military spouse attorneys in an impossible position: Under proposed Rule 9.41.1, a military spouse attorney is unable to register without first obtaining a declaration from a supervising attorney. This creates a logistical roadblock for military spouses on the job hunt who already face an uphill battle to find employment in a new state without an established network. Having to explain to a potential employer that they are not eligible to practice until going through a registration process after being hired means that, in reality, they are likely to be passed over for someone with a license already in hand. If the supervision requirement remains, a better approach is to allow a military spouse to pre-register prior to the job search in order to approach potential employers with licensure established. A subsequent declaration from a supervising attorney can then be submitted once employment is secured.
These concerns were conveyed to the State Bar during the public comment period earlier this year, before their vote on November 16, 2018, which advanced Rule 9.41.1 to the California Supreme Court for consideration. Despite receiving 37 comments opposing supervision or proposing an alternative such as mentorship, and only 8 comments in favor of Rule 9.41.1 in its current form, no substantive changes were made to the proposed rule in light of the public input.
We strongly urge the Court to consider the unique challenges faced by military spouse attorneys when implementing a licensing accommodation. Adoption of the proposed Rule 9.41.1 creates overly burdensome supervision and registration requirements that are logistically impractical in the context of a job search in a new location. Unfortunately, the rule as currently proposed hinders rather than helps our community. Consideration should be given to a rule more in line with the Model Rule for Admission of Military Spouse Attorneys.