In addition to bar admission for the Rhode Island state courts, attorneys must have a separate bar admission to practice before the Rhode Island federal district court. Earlier this month, the federal district court announced a proposed change to its local rules that will remove the last vestige of the federal bar exam. Under the proposed revision to Local Rule 202, the federal court will remove the requirement that federal bar applicants must “take a course of instruction on federal practice and practice before this Court.” Applicants will no longer be required to attend a class, and can gain entry to the federal bar simply by establishing bar membership to the Rhode Island state bar and showing good moral character. This is a continuation of a trend that is also occurring in the Rhode Island state court, where the Rhode Island Supreme Court recently made the state bar exam more accessible to applicants.
The proposed change for federal bar admission in Local Rule 202 puts the Rhode Island federal district court in line with most other federal courts in the country by imposing minimal requirements to gain entry to the federal bar. A welcome change, no doubt, for new bar applicants, but one that will also provoke existing federal bar members to say things like, “In my day, we had to trudge through the sleet and snow and take a bar exam, and we liked it.”
Not too long ago, the Rhode Island federal district court required attorneys to take a separate bar exam, on top of the standard state bar exam, to gain admittance to the local federal bar. Over the years, the federal court relaxed the requirement for the bar exam and replaced it with a mandatory class of fewer and fewer sessions. I do not know the exact dates, and the following is based on an oral history from other attorneys that may have some inaccuracy, but the basic gist is that back in the day, the Rhode Island federal district court was renowned for requiring attorneys to take a separate bar exam and attend five classes, each three hours in length. According to one local lawyer-historian, the local federal bar exam started in 1981 as part of a national pilot project. (In fact, the Rhode Island District Court recently tweeted the bar exam results from January 1984 for now-District Judge McConnell, who passed the test). The word on the street was that the federal bar exam was not as long or difficult as the state bar exam, but it still required studying or at least some brain power.
Over the years, other federal district courts that were part of the pilot program dropped or reduced the original requirements. Here in Rhode Island, sometime around 2007, the federal district court decided to remove the bar exam requirement but keep the lengthy night-time courses in place. The last sitting of the federal bar exam occurred in 2007. I have not found any of the federal district court’s old administrative orders on its new website, but I applied to the Rhode Island federal bar around then, and I remember the attorneys in my office saying the rule had changed recently and that I was lucky I didn’t have to take the exam. Under the rules in place when I sought admittance, the federal district court required approximately four to six sessions over several weeks of about two to three hours each that covered all aspects of federal court, from civil and criminal law to bankruptcy. Federal district judges, United States magistrates, and local luminaries of the bar taught the sessions. If you missed a session, you were out of luck and had to wait until the federal court ran it again the following year to gain admittance. I recall that for one of the sessions, I signed my name at the bottom of the attendance list (below the fold and hard to see), and I received an e-mail the following day that my application to the federal court was rejected and I would have to re-apply next year. In response, I hired a team of lawyers (just kidding) and offered to procure affidavits (not kidding) from other attorneys who could attest that I attended the session.
More recently, the federal district court relaxed the course requirement and reduced the number of sessions to one or two. That’s where things stood until the federal district court announced the proposal this month to eliminate the bar admission course entirely. The change is the final step in the federal district court’s gradual relaxation of bar admission requirements, and it will make admittance to the local federal bar a simple matter of filling out forms. The old requirements had the practical effect of limiting the number of out of state lawyers because they were required to travel to Rhode Island to take the bar exam and/or to attend classes. The new proposal will make it much easier for out of state attorneys to gain admittance.
The new rule is also an example of the interstitial nature of state and federal courts. Under the proposed change, an attorney will be admitted to the federal bar if he or she is a member in good standing of the Rhode Island state bar. As a practical matter, this means the federal district court has outsourced judgment on the fitness of attorneys for the federal bar to the Rhode Island Supreme Court. While federal courts regularly apply state substantive law in certain types of cases, it’s rare for federal courts to apply state procedural rules in federal cases. Even when the federal court passes on a substantive state law question, the federal court will apply federal procedural rules. Historically, one prominent exception to the federal court’s use of its own procedural rules is the application of the state court rules of professional conduct in federal court. In Rhode Island, the federal district court has incorporated the state-court ethics rules for practice in federal court under Local Rule 208. As the state court rules of ethics change, the rules of ethics that apply to the Rhode Island federal court change with them — even on significant matters such as the new rule on limited scope representation.
Now it’s time to add bar admission as another exception to the federal court’s use of its own procedural rules. With the federal court removing the last vestige of the federal bar exam by removing the course requirement, the pendulum has swung towards easier access to bar admission and greater deference to the state courts.