Closure Alert

January 3, 2020

Changing the Rules: Examining Military Spouse Admission to the Virginia State Bar

BY: Courtney M. Kelly and Nicolle Vasquez Del Favero

Here are the facts: on average, active duty military personnel move once every two to three years, 2.4 times as often as civilian families. Military spouses move across state lines 10 times more frequently than their civilian counterparts.^[1] As a result of frequent moves, while 85% of military spouse attorneys hold an active law license, only 37% have a job requiring said license.^[2]Military spouse attorneys have a 27% unemployment rate,^[3]and suffer from a $33,000 wage gap compared to their civilian counterparts.^[4]

While many states have worked to ease licensing burdens, military spouse attorneys have noticed that the requirements of some state rules are so cumbersome that they are rendered essentially useless. Such is the case with Rule 1A:8, the “Military Spouse Provisional Admission Rule,” issued by the Supreme Court of Virginia on May 16, 2014.

Rule 1A:8, Section 4, Supervision of Local Counsel, mandates that the military spouse attorney may practice for the duration of their spouse’s military assignment in Virginia or the National Capital Region, so long as he or she is “under the supervision and direction of Local Counsel.”^[5] Additionally, Local Counsel personally appear with the provisionally admitted attorney on all matters before the court unless specifically excused from attendance by the trial judge.

Section 4 of Rule 1A:8 is burdensome for a multitude of reasons. The lack of an established professional network in the local legal community due to frequent military moves means it is nearly impossible to find someone willing to take on the burden of supervision. The requirement for supervision may also create ambiguity as to which attorney is serving – the supervisor or the military spouse – and creates the potential for additional financial burdens on the attorney spouse regarding disputes over fee-sharing. A requirement for supervision also burdens members of the Virginia bar who, by acting as supervising attorneys, subject themselves to discipline on behalf of the supervised lawyer. To require supervision over a military spouse attorney who is already licensed and in good standing in at least one other jurisdiction when supervision is not required for newly licensed Virginia attorneys who have never handled a case, in-house counsel who have voluntarily moved here, or for those seeking reciprocity to practice under Virginia law, seems unduly restrictive and burdensome.

Removing Section 4 from Rule 1A:8 would not lower the standard for character and fitness examination or set different requirements for adherence to the rules of professional conduct. Rather, this change reflects an appropriate balance of the need to maintain the highest professional standards for the bar and the important public policy interest in supporting Virginia’s large population of military families.

About the Author

Courtney Kelly is the Title IX coordinator and Assistant Director of Equity and Diversity at Old Dominion University. Ms. Kelly graduated from Albany Law School in 2010 and has worked in higher education since 2009. Ms. Kelly is a leading expert in both compliance and building diverse and equitable working and learning communities. Ms. Kelly is licensed in both Tennessee and Virginia. She serves as the region 2 representative for the Rule of Law Project. Ms. Kelly can be reached at [email protected].

Nicolle Vasquez Del Favero is an assistant attorney with Military Sealift Command under the Office of General Counsel for the Department of the Navy. Ms. Vasquez is a member of the Military Spouse Juris Doctor Network, serving on its nominating and pro bono committees. In addition, Ms. Vasquez is an active member of the Virginia State Bar, serving as the co-chair of the Wills For Heroes program as well as the Military Law Section liaison to the Young Lawyer’s Conference. Prior to her work with the Department of the Navy, Ms. Vasquez completed a two-year Skadden Fellowship. As a Skadden Fellow, Ms. Vasquez served as a staff attorney at the Domestic Violence Action Center in Hawaii, representing victims of domestic violence affiliated with the military. Ms. Vasquez is a graduate of the University of Florida and Northeastern University School of Law. Ms. Vasquez can be reached at [email protected].