October 2, 2019
Changing the Rules: Examining Military Spouse Admission to the Virginia State Bar
BY: Courtney Kelly & Nicolle Vasquez Del Favero
A sense of service to others. This is just one attribute among many that attorneys have in common with our nation’s servicemembers. As attorneys, we are called to serve others in courtrooms, client meetings, and transactional services. No matter the practice, our livelihoods revolve around meeting the needs of our clients and improving their circumstances. Yet, what happens when our professional growth is forced to take a backseat to our personal lives or the needs of our spouse’s career? This is the struggle that attorneys married to active duty servicemembers face every day.
In June 2018, Syracuse University’s Institute for Veteran and Military Families (“IVMF”) released their second iteration of a series of reports examining military spouse employment, “The Force Behind the Force.” [i] This series examines the unique employment challenges faced by military spouses due to frequent relocation and limited access to career enhancing opportunities as a result. Over a five-year period (2012-2017), IVMF tracked unemployment rates for military spouses and found that overall, military spouse unemployment was 23–26% higher than those of their civilian peers. In addition, military spouses are paid less, work fewer hours, and have a 90% underemployment rate (meaning they possess more formal education and experience than is needed at their position).
These staggering numbers are directly related to the fact that military spouses serve in tandem with their servicemember who may be required to move repeatedly. 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. Additionally, a service member’s orders to stay at or leave an installation often come with less than six months’ notice, forcing military families to pick up and start over on short notice. All of these factors make it extremely difficult for any military spouse requiring state licensure to grow in their profession while following and supporting their spouse’s military career.
In looking specifically at attorneys married to service members, the need to take a new bar examination every two or three years is extremely disruptive to careers, particularly when the process of applying for, taking, and waiting for the results of a bar exam can last almost a year. As a result, while 85% of military spouse attorneys hold an active law license, only 37% have a job requiring that license. Military spouse attorneys have a 27% unemployment rate and suffer from a $33,000 wage gap compared to their civilian counterparts.
Many states, including the Commonwealth of Virginia, have worked with the nonprofit Military Spouse Juris Doctor Network (“MSJDN”) to ease licensing burdens faced by military spouse attorneys due to frequent moves. Since its founding in 2011, MSJDN has successfully advocated for licensing accommodations, resulting in bar admission rule changes in 38 jurisdictions, including the U.S. Virgin Islands. However, almost eight years after the first exemption was put into effect, 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 grants admission on motion to military spouses who meet certain enumerated criteria as a practicing attorney. In addition to the 13 criteria needed to even qualify for admission under this rule sits Section 4, Supervision of Local Counsel. Under this requirement, 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.” This section also requires that Local Counsel personally appear with the provisionally admitted attorney on all matters before the court unless specifically excused from attendance by the trial judge.
This Local Counsel requirement is burdensome to military spouse attorneys for many 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 those seeking reciprocity to practice under Virginia law—seems unduly restrictive and burdensome.
While the Commonwealth was innovative in 2014 as the seventh state to pass a military spouse admission exemption, over the five years of its implementation less than a dozen attorneys have used this rule due to the burden of the supervision requirement. To put this into perspective, Virginia has the third largest military presence in the country, housing over 115,280 active duty and reserve members, and supporting 27 military installations as well as many others in the National Capital Region. As such, while many military spouse attorneys have presumably resided in Virginia, very few have benefitted from the rule that was created to lighten their professional burden.
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.
There is no doubt that building and maintaining a career as an attorney is already a difficult feat in and of itself. While the current Military Spouse Provisional Admission Rule was crafted with the best intentions, the reality of the matter is the supervision requirement adds yet another barrier to employment for military spouse attorneys stationed in Virginia.
[i] IVMF’s “The Force Behind the Force “ reports are available at: https://ivmf.syracuse.edu/research/topics/employment/military-spouse-employment-series/