Ethics Forum: Questions and Answers on Professional Responsibility

Under new rule, a law school graduate who is not a U.S. citizen, can practice law in the commonwealth.

Can a graduate from law school who is not a citizen—and who is not here legally—be admitted to practice law in Pennsylvania assuming all other aspects of their character are good?

Samuel C. Stretton.

The answer is yes. The Pennsylvania Supreme Court by order dated Feb. 8, 2019, amended Rule 202 of the Bar Admission Rules in Pennsylvania. This rule was a result of a study by the Board of Law Examiners and by the Pennsylvania Supreme Court. The catalyst was a case in the last year where the Board of Law Examiners admitted a young lawyer who graduated from a law school in Pennsylvania, who was not a citizen, and did not have a valid visa. He had come to the United States as a young child with his parents and had lived in the United States since. He was in the category of what is called DACA (Deferred Action for Childhood Arrivals). After an extensive hearing and argument, the Board of Law Examiners admitted him and he is currently practicing law.

His case resulted in the review by the Pennsylvania Board of Law Examiners of the admission rules. Rule 202 is the new rule, which is now effective and made a major change in the Pennsylvania Bar Admission process.

The rule reads as follows: “An applicant who is an undocumented immigrant who has current deferred action for childhood arrivals (DACA) status or equivalent status under a succession program, and who has current and valid employment authorization to work in the United States shall be eligible for admission to the Pennsylvania bar, provided that all other requirements of the rules are otherwise satisfied. This rule satisfies the requirements of Section 1621(d) of Title VIII of the U.S. Code. This rule shall apply to all applications pending at the time of its adoption and thereafter.”

Pennsylvania is one of the first states to really adopt this type of rule and it allows persons who were brought to the United States as children, who worked hard, graduated from law school and passed the bar exam to have a chance at being admitted to practice in Pennsylvania. This is part of the more enlightened approach Pennsylvania has to bar admission rules in recent years.

The Pennsylvania Board of Law Examiners have traditionally rejected a category approach to bar admission. For instance, a law student who had been convicted of a felony years before oftentimes will have a chance to be admitted in Pennsylvania if they can show change and reform. Law students with multiple DUIs or underage drinking can be admitted if they can show change and reform and can show they have dealt with the issue of addiction. Even law students who have plagiarized papers have a chance of being admitted, depending on the circumstances, change and acceptance of responsibility. Of course, all those students have to bring in character testimony and other excellent testimony to establish that they are fit to have the privilege of practicing law in Pennsylvania. Pennsylvania has been at the forefront of a progressive approach to bar admission. Some states will bar admission to anyone with a felony conviction. Pennsylvania does not and rightly so.

Historically, going back 50 years, Pennsylvania had a different approach which was more conservative in bar admission. But, a lot of that changed with the Constitutional amendments making the Supreme Court the regulator of the legal profession. That’s what the Unified Judicial System is all about.

Older lawyers can remember years ago when Pennsylvania had a very low minority admission rate. That was changed after litigation resulted in the removal of all applicants’ pictures on the application. There was then a substantial increase of minority admission. That occurred in the early 1970s.

Since then, Pennsylvania has been in the forefront of ensuring a very fair and equitable bar admission and character review process.

This current amendment to the bar admission rules, which was proposed by the Board of Law Examiners and adopted on Feb. 8, by the Pennsylvania Supreme Court is just another example of the independence and fairness of the Pennsylvania Board of Law Examiners.

Their role is an important one. They are the gatekeepers to ensure the high standards of the legal profession are going to be met. This new Rule 202 is an example of the fairness of the process in Pennsylvania, which will continue to ensure a diverse and very competent bar.

The modern legal profession lacks a sense of history, tradition and professionalism.

What is one of the biggest differences between practicing law 40 or 50 years ago and currently?

There are many differences, but perhaps the most important thing is the lack of a sense of the history, tradition and professionalism of the legal profession. There are many very intelligent and brilliant young lawyers who are presently populating the legal profession. In this modern world, it’s much easier to keep up with changes in the law and much easier to research than it was 40 or 50 years ago when one had to go to a law library, pull the books, read cases and then go to Sheppard’s and check to see if the cases were reversed. There was no computerized legal research 40 to 50 years ago.

When one joins the legal profession, it’s more than just a personal accomplishment. Joining the legal profession is a privilege and one joins a profession that has existed in the United States from its very beginning and from England for almost 800 years. The legal profession has many traditions and customs and is girded with a strong sense of history.

In the modern world where courtrooms are designed for practical use and don’t have the high ceilings, columns, sense of awe, it is important for lawyers to maintain decorum and respect the old-fashioned customs. Customs such as standing when addressing a judge. Customs such as using "Your Honor." Customs such as civility with opposing counsel. Customs such as not ambushing your client or giving material the last week before trial. Customs such as helping and mentoring a younger member of the bar. Memories of past excellent judges and lawyers and famous trials are a necessity to appreciate and understand the profession.

There is a need to have an understanding of the customs, traditions and history of the law for a young lawyer to fully appreciate the privilege it is to practice in the profession in which they are joining. Lawyers are involved in a profession that has an unbroken history of hundreds and hundreds of years of helping people—and of helping to change the law and helping to foster and strengthen the democratic process. There is a wonderful tradition of providing free, reduced or pro bono legal services to those who can’t afford legal representation. There is a tradition of lawyers being involved in community service and the political process. There is a tradition and history of lawyers mentoring young lawyers and teaching them the nature of the profession.

These traditions and sense of professionalism appear to be missing. There should be a practice of giving to any young lawyer who is admitted to practice law a book or pamphlet summarizing the legal history in the county where they practice.

In the modern practice of law, constant communication, making deadlines, trying to generate new business and demanding clients expecting a lawyer to be available 24 hours a day, seven days a week, much is lost of what it really means to be a lawyer.

In the past, lawyers socialized more together through bar associations, had dinner get-togethers or a drink after work. It was during those times; the history of the profession was often discussed and lawyers learned the great responsibility of being a professional.

Prior to 1972, every lawyer in Pennsylvania had to serve a preceptorship of about six months. Although some people considered it “slave labor,” it was really a wonderful process where lawyers learned how to practice law from a practical standpoint and learned about the history of the profession and the lawyers and the judges both present and past.

There is no way a profession can maintain itself if it loses its history and customs. There is no way a profession can prevent itself from becoming just another business, if that profession doesn’t protect its history, traditions and customs and pass on those to the next generation of lawyers.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.