Banned From the Bar Exam


February 7, 2017 12:10PM

Maxim-ilano Guzman just graduated from Vanderbilt University’s advanced legal program with a 3.9 GPA. Having completed his LLM (basically a Ph.D. for lawyers) at Tennessee’s most prestigious law school, Maxim will be an attorney. It just won’t be in Tennessee. Or at least so says the state board, which deems him unfit even to take the test. Fortunately, the Tennessee Supreme Court may intervene to right this wrong.

Maxim’s professors say he was one of their best students, ever. But Maxim (Argentinian by birth, Memphian by marriage) went to a university for his J.D. in his homeland that, like most of the rest of the world, combines law school and undergraduate. The board requires foreign degrees to be “substantially equivalent,” and views Maxim’s combined degree deficient. The effect is to exclude almost all foreign educated attorneys. Board officials even characterized Maxim as “very, very qualified,” but won’t make an exception. Rules are rules and all that.

Maxim just wants the chance to prove himself by being allowed to take the Bar exam. But the board won’t even give him a chance.

Professional licensure presents rampant opportunity for abuse. Boards are made up of those in the field. They have every reason to keep others out. Too often instead of fencing out incompetents, they fence in incumbents, to borrow Texas Supreme Court Justice Don Willett’s memorable phrase. Maxim’s only choices (which he learned only after investing thousands of dollars in his education) are: go back and take college and law school over again, or just get licensed in another state. None of this makes Tennessee’s legal market look particularly sophisticated. Florida or Texas would probably understand the value of an experienced bilingual corporate attorney familiar with the burgeoning South American market. Instead of locking the door, they’d be rolling out the welcome mat-in Spanish and English.

All of us should hope Maxim gets a third option, and I do mean all of us. Tennesseans would benefit from a highly skilled international lawyer. Maxim has earned the right to practice here. But the state board should also hope it loses, and no sudden wellspring of altruism needs to come bursting forth.

In a recent Supreme Court development, the individuals who make up the board may now be held personally liable for their decisions. That is, they can be sued. The door for lawsuits to be filed against people on licensing boards who engage in anti-competitive activity is wide open. Whether the board members know it or not, no exception exists for lawyers who may be uniquely capable of, and therefore tempted into, rigging the regulatory landscape. It is not just Maxim’s personal future hanging in the balance.

These lawsuits are coming. Legal Zoom has already filed a lawsuit against the board members in North Carolina. Private actions can recover treble damages, that is, three times the amount of damages, so you can count on lawyers to try. Many, many attorneys in Nashville with very, very sumptuous offices butter their bread with treble damages.

A lot us will be quietly rooting for Maxim. Perhaps this will include a few of the more savvy members of the board.