Military Spouse Attorneys and the Licensing Dilemma
By Samantha M. Musso, Esq.*
(Revised and updated from previous publication in the Virginia State Bar Military Law Section Spring 2013 Newsletter.)
The Department of Defense and Department of the Treasury in 2012 addressed the issue of occupational licensing across state lines, highlighting the impact of state licensing requirements on the careers of military spouses and on military readiness. The report suggested best practices states can pursue, including facilitating endorsement of a current license, providing a temporary or provisional license, and expediting application procedures.
One occupation that faces unique licensing challenges is that of the attorney. Attorneys are required to be licensed in each state where they practice. The licensing process can take up to a year or more for the application, character and fitness review, bar examination, and processing. Costs vary among states, but can easily reach $4000 to $5000 for bar preparation materials and fees. Gaps in employment must be justified on bar applications and can sometimes cause delays in admission. While not pleasant for anyone, this process is problematic for military spouses in particular. A typical military family moves every two to three years, with the military spouse attorney facing a dilemma, often putting his or her family and career at odds. The decision not to move with the servicemember in order to stabilize a legal career can compound the hardship on families already subjected to lengthy separations due to training and overseas deployments. The decision to move can result in a period of unemployment or underemployment for the spouse or the beginning of an admission process in which the benefit may or may not outweigh the costs.
Bar exams are generally only offered twice per year and applications must be submitted months in advance, causing delays for military spouse attorneys who often do not know where they will be stationed with more than a few months’ notice. The process itself involves acquiring preparation materials, studying for and taking a bar exam, waiting months for results, and if all goes well, receipt of the actual license and the swearing-in process. A spouse who may be in a location for only two years can easily spend one-fourth of that time period or more seeking a license, with no guarantee of employment as an attorney, only to start the process again in 18 months when new orders arrive.
Many states will allow a relocating attorney to be admitted on motion, usually shortening the time period between application and admission and waiving the requirement of a bar exam. Unfortunately, many military spouse attorneys will not qualify for this admission. Generally, the receiving state requires reciprocity with the state where the military spouse is already licensed. If that state that does not have a reciprocity agreement with the receiving state, the attorney would not qualify for admission on motion. There is also commonly a time-in-practice requirement, requiring the military spouse to have been practicing as an attorney in the reciprocal jurisdiction for a certain period of time, generally five of the last seven years. Frequent relocations result in substantial gaps in licensure and practice that make it difficult for military spouse attorneys to accrue the required years of full-time practice.
Virginia rules pose similar obstacles. The Threshold Requirements found in the Regulations Governing Applications for Admission to Virginia Bar Pursuant to Rule of the Supreme Court of Virginia 1A:1 require that an applicant for Admission by Motion show that he or she has been “engaged in the full-time practice of law for at least three (3) of the last five (5) years immediately preceding his or her application for admission to the Virginia Bar” in a reciprocal jurisdiction. Military spouse attorneys have trouble meeting this requirement when: the military member has been assigned overseas; they have recently practiced in one or more jurisdictions that do not have reciprocity with Virginia; they are recently admitted; they have breaks in employment at duty stations; they have held non-attorney positions; or they have been unable to find legal work at a remote duty station.
The impact on both the military community and the legal community is real. If a military spouse attorney has a thriving career, the military faces losing a well-trained, quality servicemember that may be separating prematurely only to avoid a family relocation to a jurisdiction where the spouse is not licensed. Likewise, if the family places the priority on the servicemember’s career and accompanied relocations, the legal community risks losing a well-trained, educated, often experienced legal professional if the high costs of becoming licensed in the receiving jurisdiction outweigh the benefits.
The greatest impact is felt by the military family which will often resort to other methods to avoid ending either career. This commonly results in families living separately and maintaining two households even stateside, spouses taking multiple full bar exams and maintaining multiple costly licenses, and spouses choosing temporary unemployment or underemployment; all of which takes a financial and emotional toll on an already stressed military family unit.
The Military Spouse JD Network (MSJDN) was formed by military spouse attorneys to advocate for licensing accommodations, provide education about the challenges facing military families, encourage the hiring of military spouses, and provide a support network to military spouses with JDs. Since its inception in June 2011, MSJDN’s membership has grown to over 900 members and supporters, associated with all branches of the military.
An overview of the membership of MSJDN gives some insight into how licensing requirements and frequent moves inhibit the careers of military spouse attorneys. Many members have taken multiple bar exams, with it not being unusual for a member to have taken three or four different exams. Less than one-third of MSJDN members have full-time legal employment, with half of the members reported as unemployed or underemployed.
With a new awareness of the issue and need for reform, support for licensing accommodations has grown nationwide. In February 2012, the American Bar Association passed a resolution urging states to adopt rules, regulations, and procedures that accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defense. In July 2012, the Conference of Chief Justices voted to support a resolution for admission of military spouse attorneys without examination.
Six states have now implemented policies regarding the admission of military spouses. Idaho officially adopted Rule 229 on July 1, 2012. Arizona adopted Rule 38(i) in January 2013. In February 2013, Texas adopted a License Portability for Military Spouses (LPMS) policy, becoming the first state to initiate a licensing accommodation policy for military spouse attorneys without a formal rule change. In April 2013, it was announced that North Carolina has adopted Rule .0503 which modifies requirements of comity licensure for military spouse attorneys. Illinois adopted Rule 719 in June 2013. Most recently, South Dakota adopted Rule 13-10 in September 2013.
Virginia rules currently do not offer an option that addresses the challenges facing military spouse attorneys. In November 2013, the Supreme Court of Virginia published for public comment a proposed rule relating to the provisional admission of military spouses to the Virginia Bar. The comment period for the proposed rule closed on January 17, 2014, and it is unknown at the time of this writing when and how the Court might act on the proposed rule change.
As Virginia is home to one of the largest active-duty military populations in the country, there is a need for the issue to be addressed here, with the potential for a positive impact on the stability of military families as well as the professional legal and military communities.