Admission in Other States

A license opens one state's gate and no other. A lawyer who wants to work in a second state therefore faces that state's admissions authority, and the candor duties of Rule 8.1 go along. Rule 8.1(a) forbids knowingly making a false statement of material fact in connection with an application for admission, and its text excuses no applicant who already holds a license elsewhere.¹ Rule 8.1(b) bars a lawyer from knowingly failing to respond to a lawful demand for information from an admissions or disciplinary authority, and the second state's authority is as entitled to an answer as the first.²

How a lawyer reaches that second gate depends on how much of the state's practice the lawyer wants. A lawyer who plans to practice in the state on a continuing basis applies for a license there, and may hold licenses in several states so long as each state's requirements are met. A lawyer whose only tie to the state is one case can ask the court hearing that case for leave to appear in the matter alone. This section takes the license first and the single-case appearance second.

Together the two routes answer a question that the unauthorized-practice rules may leave open. Practicing law in a state without that state's license is unauthorized practice, so a lawyer arguing in another state's courtroom looks at first like a violator. But a state can authorize practice in more than one form, either by full license or by leave to appear in a particular case, and a lawyer acting under either form has not engaged in unauthorized practice. The forms screen differently. A license rests on the state's full admission process; leave to appear rests on the judgment of the court that will supervise the lawyer in that case.

Multiple Licenses

Every additional license is a new application to a new admissions authority, and Rule 8.1 applies afresh each time. The threshold question is whether a lawyer may hold licenses in several states at all. The answer is yes: a lawyer may be licensed in as many states as the lawyer wishes, so long as the lawyer satisfies each state's requirements.

The reason lies in where licensing power sits. Each state decides who may practice in its own courts, so each licensing decision is independent of every other. A first license is neither required for a second nor enough to obtain it, because the second state asks its own questions about education, examination, and character and decides for itself whether the applicant has answered them. A state may ease its requirements for lawyers licensed elsewhere, but that choice belongs to the second state and does not flow from the first license. Holding several licenses means clearing several separate gates, and clearing one shows nothing to the others.

May a state protect its bar by requiring that licensees live there? It may not. Residency requirements for obtaining a license have been held unconstitutional. Licensing exists to screen for competence and character, the traits on which clients and courts rely, and where a lawyer lives measures neither. A residency condition does nothing for the state's legitimate interest and shuts qualified outsiders out of the profession, a burden the state cannot defend as a test of fitness. The state keeps every legitimate tool, including its education and examination requirements and its lawful demands for information about the applicant. It loses only a condition that tests neither competence nor character.

Two instincts mislead students here. One assumes that a license from one state carries some authority into another, when each license opens only its own gate. The other assumes that a state's control over its bar lets it add a residency condition to the rest. The control is real, but it reaches qualifications that bear on competence and character, and where an applicant lives is neither.

Pro Hac Vice Appearances

A lawyer whose only connection to a second state is a single case does not need a full license there. The court hearing the case can admit the lawyer for that matter alone, a device called admission pro hac vice, Latin for 'for this turn only.' The limit on the admission does not limit the candor duty. A motion for leave to appear is still an application to be admitted, and Rule 8.1(a) forbids a knowingly false statement of material fact in connection with it. A visiting lawyer who misstates a licensing or disciplinary fact in the motion has committed the dishonesty the rule targets, whether or not the court notices.⁴

A license and a leave to appear serve different needs. A full license is built for a continuing practice, so it comes with the full screening of education, examination, and character review. A lawyer who needs to appear once has an occasional need, and running that lawyer through the whole process would burden lawyer and state out of proportion to the need. Pro hac vice admission meets the need without issuing a license. The court gives up no control, because the visiting lawyer appears in a matter pending before it, and its supervision of the matter reaches the lawyer's conduct there. When the matter ends, the permission ends with it.

Because the court is deciding who may appear before it, the decision rests in the state's discretion. A visiting lawyer asks for a privilege the state may extend and holds no right to it, so a lawyer who is turned down has no due process claim to a particular quality of consideration. Due process protects interests the law already entitles a person to hold, and where the state is free to say yes or no, the lawyer has no entitlement to point to. That discretion also lets a state attach conditions. Some states grant leave only to lawyers from states that extend the same courtesy to their own lawyers, which makes the state's generosity depend on receiving it in return. Some require the visiting lawyer to associate with a locally licensed lawyer, who gives the court a point of accountability: that lawyer is subject to its discipline, can receive its notices, and knows its local practice.

An exam question may ask whether a lawyer who stands up in a courtroom where the lawyer holds no license has necessarily engaged in unauthorized practice. The answer is no. A state can authorize practice through a full license or through leave to appear in one matter, and a lawyer admitted pro hac vice acts with the court's permission. The trap is to assume that the lack of a local license settles the question, when what settles it is whether the lawyer holds either form of authorization. A lawyer who appears with leave is authorized; a lawyer who starts representing clients in the state with neither license nor leave has nothing to point to. Authority obtained through dishonesty carries its own consequence: the candor duty of Rule 8.1(a) stays with the lawyer, and so does the duty under Rule 8.1(b) to answer lawful demands for information from an admissions authority.⁵