After starting as a legal assistant I have spent at least a decade working in the legal industry. I also graduated from Rutgers School of Law with J.D. degree. In this article I go over possibilities of practicing law with or without passing bar exam.
Note, that as a new trend, in several states non-attorneys can fully practice law in limited areas of law.
Generally, in all US states, a person can practice law only after passing the bar exam and obtaining an attorney license. Practicing law without getting an attorney’s license is unauthorized practice of law. It is illegal and can lead to criminal charges. But in several states non-attorneys now can practice law without passing bar exam.
Let me tell you few details that attorneys usually do not say to their clients. Then, in this article, I will tell you about some interesting details of practicing law with or without passing bar exam.
Is the bar exam required to practice law?
Generally, one must pass the bar exam to practice law in any state in the USA. Law students who are trained in law school and graduate can be considered lawyers but not attorneys.
Essentially, they are non-practicing unbarred lawyers or non-lawyers under current commonly accepted legal standards.
I wrote a whole article on this difference. Check my blog to see the legal distinction between lawyer and attorney and what this difference means.
Without passing the bar exam, even a lawyer’s career options are limited in the legal industry. There are multiple restrictions on law practice without a bar license.
But, states like California, New York, Washington, Virginia, Vermont have rules allowing people to take the bar exam without going to law school.
Why bar exam and attorney license are necessary to practice law?
There are two reasons why a person must be a licensed attorney to practice law in the USA. The most cited reason is ensuring the quality of the attorney’s work.
The bar exam is very intellectually challenging. Mostly smart people pass the bar exam.
Passing the bar exam ensures at least some minimal standard for intellect and knowledge among attorneys. In addition, it shows that the attorney can earn, analyze, and apply legal rules and norms for the benefit of a client.
That is true. Most attorneys are intelligent and capable people. But unfortunately, I have met just a couple of truly incompetent attorneys.
One of them was a young attorney who just recently passed the bar. Another was an attorney with 15+ years of experience, which gave me bad incorrect advice.
He could not even offer an intelligent explanation when I confronted him about that a little later. Instead, he started showing me a map on which he showed counties where he was practicing law and known as a reasonable attorney.
So, he told me. I had no slightest idea what it had to do with the fact that he screwed and gave me wrong advice. Luckily, I was able to fix the problem myself after reading a bunch of materials.
I avoided bankruptcy, avoided repo, and set my situation right. I was just a law student then. Apparently, even bar exam is not a guarantee of incompetence in law.
Also, the bar exam ensures the uniform quality of attorneys. Several states like California and New York allow people to take bar exams without going to law school. For example, applicants who studied law abroad may do it.
That means that people with very different qualities and levels of knowledge may try to get into practicing law. Having a single bar exam for everyone weeds out those who think way differently than the current legal system requires. Or, those who are not well-trained in US law.
Passing the bar exam does not ensure an attorney’s ethics and morals
The other problem is that passing the bar exam does not automatically guarantee that newly minted attorneys will follow ethics rules to the core. And legal ethics has not had much to do with morals – those are two different concepts.
Legal ethics means following rules established by the legal profession – mostly rules created by American Bar Association.
The real reason why they introduced bar exam and attorney licensing requirements
The real reason attorneys must pass the bar exam to practice law is to limit access to the profession and protect the local market. That is my personal opinion.
A long time ago, there was no bar exam requirement. Well, there even was no law school. So instead, lawyers became lawyers through apprenticeship.
Then lawyers created state bar associations, started such restrictions as passing the bar exam, and law schools popped up all over the country.
Those limited requirements entry into the profession of practicing law, driving up revenue and profits for attorneys.
Previously lawyers could essentially move around the country. And many lawyers could concentrate in a better market by just moving there, therefore diluting markets and reducing overall profits—supply and demand law in action.
To avoid that, to protect local profits, many bar associations across the country introduced restrictions like the provincial state bar exam.
It is my personal opinion that this was another primary reason for the bar exam passing requirement. They do not talk about it. But such restriction makes perfect economic sense if you think about protecting your profits.
However, the legal profession suffered from a drop in law school applications due to a lack of jobs. So, now they are streamlining bar exams around the country by introducing a single uniform bar exam precisely for many different states.
This makes the profession more unified and liquid and less rigid, allowing better access to legal services for lower-income individuals.
Who can practice law without passing the bar exam
Generally, nobody in the USA can practice law without passing the bar exam and admittance to a local state bar. But many federal government agencies allow paralegals or non-lawyers who never passed bar exam to independently prepare legal paperwork for clients.
The unauthorized practice of law can result in criminal penalties for those who engage in it. Said that independent paralegals and legal paraprofessionals increasingly practice law without passing the bar exam and a license.
I remember instances when immigration document preparers or immigration paralegals essentially worked on immigration cases without attorneys.
I have seen whole immigration document preparation services that essentially represented their INS (USCIS) US immigration service clients.
They did it without a single licensed attorney reviewing their work or even being present in the office. That was not entirely legal, but USCIS allows paralegals to work on immigration paperwork independently without passing the bar exam.
Note, that several states already allow paralegals to prepare paperwork for federal law agencies. They still cannot provide legal advice or consult clients on legal matters.
Those areas include quite a few federal agencies ranging from USCIS (immigration), to bankruptcy to social security disability matters.
That work usually is limited to preparing paperwork. Such paralegals typically do not give legal advice or at least refrain from doing it openly.
In some states, such paralegals or document preparers must register with respective authority or the court. For example, bankruptcy petition preparers sometimes register with the local bankruptcy court.
CURRENT TRENDS IN PRACTICE OF LAW BY NON-LAWYERS
Recently several states officially allowed paralegals or other such professionals to independently practice law in few areas. See my other article on this blog for details about that. Those paraprofessionals never passed bar exam but can either prepare paperwork.
Under limited circumstances, they can even fully engage in law practice in bankruptcy, immigration, evictions defense, family law and a few other areas without an attorney.
This is new growing trend, and it varies from state to state. See my other blog post with details about things paralegal can do without a lawyer. I extensively and in details go over which states allow that.
As time progresses, more and more such legal professionals will provide limited legal services to the public without passing the bar exam.
The reason is simple – legal services are costly, and many people do not have access to them because of this extremely high cost.
That cost results from bar associations artificially limiting access to the legal profession via bar exam and licensing requirements.
This is not a free market – this is the opposite of a free-market situation. Essentially, this is a cartel setup.
Honestly, I have seen some very experienced paralegals who knew their craft much better than many young attorneys.
And I have seen young and not-so-young attorneys screwing up client’s cases because of simple incompetence. This is a controversial topic. The legal profession is unfair. Well, life is unfair.
I should note, that such major restriction on ability of people to practice certain profession in demand from the public is not only a danger to public policy.
It can also be major constitutional violation of right to property (income) and right to choose your service provider. But who cares about that when money is involved, right?
On the other hand, any paralegal or legal professional can pair up with a local licensed attorney and work under supervision, even doing their legal work. That is fine as long as they follow the rules of legal ethics.
It is still unlawful to practice law without passing bar exam
I must emphasize, that developments allowing non-lawyers perform legal work in some states are limited. Practicing law without ever passing bar exam and obtaining attorney license is largely unlawful (illegal) in most US states.
Say, you decided that you want to explore path of independent paralegal or such other professional in those states. You must carefully learn what is allowed and what is not.
Also, states define and regulate such professionals very differently. I suggest doing lots of research to avoid getting into trouble for unauthorized practice of law.
Because the line between lawfully providing legal services and unauthorized practice of law is still very thin for those who never passed the bar.
Self-representation without passing bar exam is a practice of law
In limited circumstances, a person may be allowed to represent themselves in court or other legal proceedings without the presence of an attorney. That is not advisable, but some people do it.
That is also the practice of law on one’s behalf, and it falls under an exception. Because by not having an attorney, such a person essentially is screwing himself or herself, not the other people.
People can represent themselves in criminal proceedings, in personal bankruptcy, in immigration proceedings, for example. Not having an attorney and self-representation may end up badly for such a person, though.
Criminal judges may be more lenient to such self-represented defendants. Judges may bend over for criminal defendants because the fundamental constitutional right of liberty is involved.
But civil court judges hate such people. Often they could not care less if self-represented people make significant errors of law or procedure.
Another example is small claims court – many states do not allow attorneys to work in small courts, and people represent themselves.
More Recent Developments
Opinions in some significant publications recently starting calling for limiting ABA’s ability to regulate the legal industry because, currently, lawyers have a tight monopoly grip on it.
Writers are calling to eliminate bar exams, for example, to allow more people to practice law without passing the bar exam. That means offering legal services at a lower cost, making legal services more affordable.
I am for it in some way. Unfortunately, the current state of the price structure for legal services often leads to clients’ bankruptcies in the long run without necessarily solving their legal problems.
I do not see this significant relaxation of rules happening any time soon.
On the other hand, several states like Oregon, New Mexico and several more now officially allow paralegals or legal paraprofessionals to provide full array of legal services in limited areas of law from family law to eviction defense to preparation of legal documents.
In few instances such professionals are even allowed to give legal advice and represent clients like a lawyer. With out ever taking and passing bar exam.
This is new recent trend and I talk more about it in my other subsequent blog articles about things paralegals can do without a lawyer.
Tricks to Practice Law Without Passing Bar Exam
Without passing the bar exam, one cannot get admitted to the bar. Without being barred, a person generally is not allowed to practice law in the USA.
That means not being authorized to give legal advice or represent a client in legal matters.
Even more so, a non-lawyer is not even allowed to have their clients for legal matters in most states.
So you thought you could outsmart thousands of experienced attorneys who are implementing all these rules to guard their profession and their profits? Lol.
The article’s point is that practicing law without passing the bar exam may get anyone in big trouble or potentially even land in prison under current rules. Of course, no law firm will hire an unbarred person in the capacity of an attorney.
Maximum what one can do is apply for a paralegal, law clerk, or any similar position to perform legal work under the supervision of an attorney. One famous example is Erin Brockovich – there is a Hollywood movie about her.
Said that, there are few tricks of how one can practice law without passing the bar exam. Those options are few, but they make it possible.
With recent trends, we may see the time soon when non-lawyers can engage in an independent legal career without passing the bar exam.
I have seen some independent, experienced paralegals pair up with attorneys, where paralegal performs limited narrow type of work and allegedly works under the supervision of that attorney.
That arrangement may work if such paralegal or document preparers know what they are doing and carefully avoid breaking legal ethics rules.
And such a paralegal should not damage their clients by making legal mistakes because their legal errors will be attributed to supervising attorneys. That is why most attorneys will not agree to such an arrangement unless they see a significant profit.
The best route to law practice is still to go to law school, pass the bar exam, and get admitted as a member of the state bar.
Now you can call yourself an attorney and be free to consult clients and represent them in court or other legal matters.
Practicing law is a serious undertaking with high stakes. Because the client’s life, liberty, or assets are on the line, making a mistake may hurt them plenty.
But some matters are tiny and can be handled by a non-licensed professional.
For example, I needed someone in another state to go to court and obtain a clearance letter on my behalf and then bring it to a local DMV to clear my record.
Attorneys refused to help me even for money because it was not worth the time for them. Unless I paid them like 500 dollars or more for it.
So I had to find some paralegal who could do it using power of attorney from me. That was a kind of a favor, not a practice of law. I mean, what bad did it do except that it made my life much easier?
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