LAWYER RECIPROCITY IS GOOD FOR FLORIDA

If you are in any way involved in the Florida legal community, the watchword of late is reciprocity. If you’re not part of the Florida legal community, or you are but simply haven’t been paying attention, then here’s a brief explainer:

Lawyers licensed in Florida can only practice in Florida. To (legally) practice law in another state, a Florida licensed lawyer would have to apply for a state license, pass that state’s bar exam, as well as pass that state’s character and fitness requirements.

Florida’s Bar Association does not have “reciprocity” with any other state bar association. Reciprocity means that two state bar associations have agreed that lawyers in state A can practice in state B, and vice-versa, without taking another bar exam as long as they meet the other state’s admission requirements.

The Florida Bar has proposed looking into making Florida a reciprocal state, and is holding hearings on the issue. Lawyers state-wide are flipping out, and the Florida Bar is asking everyone to stay calm. So what’s the big deal?

Out of 50 U.S. states only 11 do not have some sort of reciprocity agreement. Florida’s lack of reciprocity with other states has been attributed to many things, but the underlying reason has to do with protectionism. The Florida Bar is protecting its members from out-of-state competition by setting a high barrier to entry – passing the Florida Bar exam and undergoing the bar admissions process.

Here’s what the Florida Bar’s rule against out-of-state lawyers practicing in Florida says:

A lawyer who is not admitted to practice in Florida shall not:

(1) except as authorized by other law, establish an office or other regular presence in Florida for the practice of law;

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in Florida; or

(3) appear in court, before an administrative agency, or before any other tribunal unless authorized to do so by the court, administrative agency, or tribunal pursuant to the applicable rules of the court, administrative agency, or tribunal.

If you’re curious about what is and is not the practice of law, you can read more here. Needless to say it’s Byzantine, since courts have decided what it is on a case-by-case basis.

Lawyers are freaking out because they’re afraid Florida will be flooded by out-of-state lawyers who find our state so irresistible they will flock here in the thousands to compete for clients. But I believe reciprocity is a good thing. Here’s why:

Why lawyer reciprocity is a good thing

One word: mobility.

Without reciprocity lawyers are like medieval serfs: forever tied to the land without the ability to work anywhere else. With reciprocity Florida’s lawyers have the potential to be much more mobile. To open multi-state practices without having to hire lawyers from that state or sit for another bar exam. To move to a state more economically feasible and practice law there. To do business across state lines. These are all good things.

Isn’t Florida already drowning in lawyers?

Kind of, but not really. When compared to some other states Florida isn’t the worst. Here’s some numbers to chew on:

In 2013 Florida produced only 1.63 law school graduates per legal job opening. This may sound like a bad number until you consider that Florida is ranked 34 out of 50, with Vermont producing 5 law school graduates per job opening.

As far as lawyers per capita, Florida ranks near the middle of the pack, with 34.4 lawyers per 10,000 residents. So no, Florida isn’t drowning in lawyers worse than any other state, even though it seems like we are.

Besides, shouldn’t a surplus of lawyers here act like an immunization against the out-of-state lawyer scourge? If competition here is really so awful, and there’s such a high surplus of lawyers and a dearth of paying clients, do you think out-of-state lawyers are licking their chops for a chance at those table scraps? Maybe giving Florida lawyers the chance at mobility will hep the legal market.

A word about the bar exam

“Aha,” you say “we don’t really want lawyers to practice in Florida who haven’t taken the Florida bar exam, because then they wouldn’t know enough about Florida law to practice law here competently.” There’s a big misconception that passing the Florida bar exam means you are competent enough to practice law in Florida.

This is categorically untrue. Passing a test means only one thing – you got enough answers correct, either through knowing the right answers, random chance, or a combination of both, to get a passing score. It doesn’t mean that you are smart, capable, or knowledgeable enough to do something different than pass that test once you’ve passed the test.

As a person who has taken, and passed, the Florida bar exam I can tell you that:

  1. I remember nothing about the questions that were on it;
  2. I am 99.9% percent positive that I learned nothing on that test was something I learned in law school;
  3. 100% of the legal knowledge I use to practice law comes from these two sources:
    1. Westlaw = 50%
    2. Things I learned on my own either in law school or after becoming an attorney = 50%

Passing a state’s bar exam means you get to get to have a license. It doesn’t mean you’re going to be any good or know what you’re supposed to do. Lawyers in other states, who have passed other states’ bar exams, know as much (or probably more) about serving clients and how to competently represent them as any lawyer in Florida.

What Florida’s lawyers should really be worried about

What lawyers should really worry about is not their potential clients picking someone else as their lawyer, but potential clients finding a more expedient way to solve their legal problems not using a lawyer.

Lawyers: do you add value to your client’s experience? Does hiring you really improve their outcome in a criminal case? In a civil claim? In preparing a will or trust? In filling out the blanks on a bankruptcy form?

Or are you simply counting on your Florida law license to make you money since, for right now, potential clients have no where else to go?

A lot, if not most, functions of modern law practice is redundant, rote, and will soon be subject to technological automation. It’s coming sooner rather than later. In 2011 computers were replacing lawyers for discovery and document review. Technology has replaced lawyers in sifting through mountains of documents for relevant evidence. One report claims that lawyers will be replaced by software by 2030.

Fundamental changes are coming, and if you’re worried about a New York lawyer retiring to Florida and setting up shop you’re worried about the wrong thing entirely.