Judge Says Louisiana Cannot Prevent
Legal Resident Aliens From Taking Bar Exam

Associated Press Writer
September 20, 2003

NEW ORLEANS Louisiana cannot keep foreigners from taking the state bar exam just because they aren't permanent residents of the United States, a federal judge says.

The Louisiana Supreme Court decided earlier this year that foreigners staying in this country on temporary visas cannot take the exam. That is arbitrary and unconstitutional discrimination, U.S. District Judge Eldon Fallon ruled this week.

The court is sure to appeal to the 5th U.S. Circuit Court of Appeals, especially since it convinced another federal judge to throw out a related case, Vincent J. Booth, who argued the case for the American Civil Liberties Union, said Saturday.

"I can't tell you that I've ever seen seen a case where, on appeal, the court was confronted with two diametrically opposed decisions. So it should be interesting," said Booth, who represented British attorney Caroline Wallace and Emily Maw of Wales, who graduated in May from Tulane Law School.

The ACLU won this round because it lost an earlier one - a request to join the suit to one filed by three French citizens and a Canadian working as paralegals in New Orleans.

U.S. District Judge Jay Zainey rejected that request because, unlike the French and Canadian plaintiffs, Maw had graduated from a school accredited by the American Bar Association.

Then, in July, he accepted the Louisiana Supreme Court's arguments.

Louis Koerner, who argued that suit, has said Louisiana is the only state with a ban on nonresident aliens taking the bar. Nonresident aliens can take the Michigan state bar, but may not practice law.

Zainey's ruling cited Supreme Court arguments that, if an attorney was suddenly deported, it could be almost impossible to track down evidence and case files.

That argument didn't sway Fallon.

Aliens with temporary visas are "not necessarily more transient than other groups," he wrote. "Citizens and immigrant aliens may be admitted to the bar even if they have no intention of residing in Louisiana."

And, he noted, lawyers move to other states are members of the bar in states where they don't live.

"Due to advances in technology, attorneys can provide services and representation to clients from virtually anywhere," he wrote. "Louisiana attorneys retire, die, and leave the practice for a myriad of reasons."

If the court had been concerned about lawyers leaving, its rule would deal directly with that question, he noted.

And, he wrote, having a known departure date may be an advantage, not a liability. "Plaintiffs will be able to plan in advance for their departure and make the necessary arrangements to protect the interests of their clients."

Nor, he wrote, would the Supreme Court's rule provide any protection against unscrupulous or unqualified lawyers. "On the contrary, such a bar could result in depriving the public of excellent legal representation."

Booth said, "We are just absolutely delighted. I think it's great for people of the state of Louisiana to be able to have access to dedicated public servants like Emily and Caroline."