Have you ever wondered why entrance to our profession takes the path it does? The historical context for the current licensing system is largely traceable back 101 years to the 1921 Report of the Special Committee to the Section of Legal Education and Admissions to the Bar of the American Bar Association chaired by Elihu Root. That was a time when there was only a single transcontinental telephone line, most Americans were still getting their first phone, Route 66 was just being planned, and the primary form of mass transportation was via train or ocean liner. As such, legal problems and customs were naturally more colloquial, and the rules, consequently, presumed that a lawyer would practice law only in and about one state. Accordingly, there was likely little discussion about uniformity in standards or reciprocity in admissions.
In early America, the process had been relatively informal. For example, by 1860, of the 39 states, only nine had any specific requirements for bar admission. And any examinations were oral and generally considered laughable.
The Root Report changed that. It established the ABA’s position that licensure should require college plus three years of law school, followed by a public exam of each graduate “to determine his fitness.” Both education and the exam were to be designed to test “efficiency” and “character.” Accordingly, states began examining character through various methods, including interviews, questionnaires, and oversight.
Some have speculated that the reasons why the Root Report was adopted may have been less than altruistic. The prevalence of women and Black lawyers in the profession was beginning to grow. And the proposed process would inevitably create a barrier to entry for newcomers. Moreover, the Report urged action “to prevent the admission of the unfit and to eject the unworthy,” and to “purify the stream at its source by causing a proper system of training to be established and to be required.” But such statements could certainly also be applied today, as we strive to make sure that our profession remains a noble one and that the public is protected from unethical conduct. And the process and general standards have endured the test of time, at least until now.
As many of you probably know, several of the above concepts are being studied to determine whether the path to the profession should remain the same. At the very least, it will be interesting to see whether this system is still the best fit for our profession following its evolution over the past century.
Yours,
David Majchrzak
2022 SDCBA President