Summary of Petition

• Injustice in the Justice System Injures Everyone: A 21st Century Constitutional Crisis
  
  
• The ABA Judgment that Experienced Attorneys Are Not a Threat to the Public and They Should be Licensed Without Requiring Them to Re-Invent the Wheel
  
  
• The Time is Now for the California Supreme Court to Implement California Senate Bill 1782 (2000) That Declares the California Supreme Court Should Adopt Admission on Motion for Experienced Attorneys
  
  
• There Is No Reason Other Than Monopoly Protection for Rule 9.45 to Disqualify Legal Services Attorneys Representing the Indigent After Three Years.
  
  
• There Is No Reason Other Than Monopoly Protection for Rule 9.46 to Treat Registered In-House Counsel as Second Class Citizens and Deny Them the Freedom to Appear in California Courtrooms When They are Eligible to Appear as Counsel in Every Other State in Our Union.
  
  
• Foreign County Lawyers Have More Privileges and Immunities in California Than Sister-State Attorneys
  
  
• The California Bar Exam for Experienced Attorneys: Bar Examiners on Steroids Providing Monopoly Protection by Paying Selective Attention to Entry Level Answers In An Assembly Line Grading Process
  
  
• The California Bar Exam for Experienced Attorneys: 21st Century Censorship and Monopoly Protection via a 100% Subjective Test Five Nationally Respected Testing Experts Have Concluded Is Not a Valid or Reliable Measurement
  
  
• 21st Century Censorship and Monopoly Protection: The Cognitive Science of Expertise and Expert Performance Informs Licensing Officials Are Less Able to Measure Competence Than a Layman
  
  
• The California Supreme Court Should Take the Lead and Disavow State Licensing Rules That Provide “Your Attorneys Get Admission on Motion if Our Attorneys Get Admission on Motion”
  
  

1. Injustice in the Justice System Injures Everyone: A 21st Century Constitutional Crisis

• “Those who come to the Court increasingly arrive without representation.” (See California Chief Justice Ronald M. George State of the Judiciary Ex. 120, 123)
  
  
• The Los Angeles Superior Court Presiding Judge declared of the 2.7 million civil cases filed in 2005, two million (2,000,000) cases had at least one party in pro per, in large part because people cannot afford lawyers. (Ex. 132-33) Almost one-third of the appeals filed in the Ninth Circuit in 2005 were in pro per. (Ex. 134)
  
  
• Parallel to the millions of Californians who cannot afford health insurance or medical care, there is an increasing denial of the California constitutional right to representation because of the high cost of legal services, blocking access to the Courts, and clogging the Courts’ arteries with in pro per cases.
  
  
• Chief Justice John G. Roberts, Jr. in his 2006 Year-End Report on the Federal Judiciary declares there is constitutional crisis that has been ignored far too long that undermines the integrity of the right to access to the courts.
  

2. The ABA Judgment that Experienced Attorneys Are Not a Threat to the Public and They Should Be Licensed Without Requiring Them to Re-Invent the Wheel

The purpose of a licensing exam is to ascertain entry level competence and protect the public. California’s licensing rules that presume experienced sister-state attorneys are not qualified to be lawyers are out of touch with the 21st Century and ABA guidelines. To presume a layman is capable of representing herself but yet an experienced attorney is incapable of representing a layman defies common sense. Wise leaders do not make decisions based on false presumptions.

The American Bar Association MJP Commission recommendation for admission on motion is based on its comprehensive report Client Needs in the 21st Century. It is based on fair procedures and carefully studied conclusions that cannot be doubted, including:

• The Commission was composed of a blue-ribbon diverse panel of nationally respected members of the bar, including Diane Yu, former General Counsel of the State Bar of California.
  
  
• The predicate for this ABA national study was the dynamic change and nature in evolution and scope of legal practice during the past century, facilitated by a transformation in communications, transportation, and technology.
  
  
• Although client needs and lawyer services have evolved, lawyer regulation has not yet responded effectively to this revolution. From the outset, the MJP Commission recognized the importance of engaging in an objective and comprehensive inquiry and encouraging as many others as possible to lend assistance.
  
  
• The MJP Commission thus held open public hearings in San Diego, Atlanta, Miami, Dallas, Kansas City, Chicago, New York, and Philadelphia. Consistent with 21st Century technology, and the ABA’s core mission to defend justice and pursue liberty, transcripts of the testimony at these open public hearings, as well as the written comments received from virtually every arm of the bar, are on the ABA’s web page.
  
  
• One of the key conclusions designed to modernize the practice of law was experienced attorneys do not need to “reinvent the wheel,” and take another bar exam to practice successfully in another state. The Commission held: “Often, the most significant qualification to render assistance in a legal matter is not knowledge of any state’s given law, but knowledge of federal or international law or familiarity with a particular type of business or personal transaction or legal proceeding.”
  
  
• The ABA concluded, what everyone knows, there is a learning curve, and a first class yardstick measuring competence is prior licensing and experience practicing. United States Judicial Conference studies empirically prove a direct correlation with experience and competence.
  
  
• As professional athletes instinctively develop their skills over many years, the MJP Commission concluded experienced attorneys are instruments of justice; they have an instinct for the law as a result of their training and experience.
  
  
• Tracing instinct and evolution backwards, the purpose of a bar exam is to predict and measure “entry level” competence for initiation into a profession, to thus provide “public protection.” However, many basic universal skills of a lawyer are not testable on a pen and paper test such as: instinct, experience, interviewing a client, fact gathering, legal research, negotiation, ability to inspire confidence, credibility, commitment, oral advocacy, and emerging dynamic developments in the law.
  
  
• An attorney’s opportunity to use a computer, surf the web, copy, edit, cut and paste content from one jurisdiction’s law books is technologically, like Starbucks, the same everywhere.
  
  
• The MJP Commission also necessarily presumed — if by law, a layman is presumed to know the law, or can presumptively find it, and is presumptively capable of representing herself — a fortiori an experienced licensed attorney can do the same. (It is a fairy-tale to conclude a layman is presumptively competent: But an experienced lawyer is presumptively incompetent.)
  

3. The Time is Now for the California Supreme Court to Implement California Senate Bill 1782 (2000) That Declares the California Supreme Court Should Adopt Admission on Motion for Experienced Attorneys

Senate Bill 1782 enacted 99-0 signed by the Governor in 2000 declared: “[i]t is the intent of the Legislature that the Supreme Court of California should adopt rules permitting the admission to practice law in California of an attorney who is licensed in another state and who has not passed the California bar exam.” S.B. 1782, Leg., Reg. Sess. (Ca. 2000).

The California Supreme Court initially appointed an 18 member Task Force to study and implement this legislation. Nine members were partners in private practice wearing a second fiduciary hat as partners in California law firms: Some members had partnership income dwarfing the State Bar of California’s annual 100 million dollar budget. The Task Force did not hold any open public hearings and met in secret. One member, former State Bar of California President, and now United States District Judge, the Hon. Andrew J. Guilford argued: “the failure to have admission on motion “puts sand in the gearbox of our industry.” Not unlike asking the Exxon-Mobil Board of Directors to vote on whether the United States should invest in alternative forms of energy, the California Task Force recommended that no attorney from any of the forty-nine other States be provided reciprocal licensing; notwithstanding their education, experience, reputation, or practice specialty. The Task Force, however, recommended that the changes that are implemented be reviewed within a few years and evaluated to determine whether they have been successful and whether additional changes may be appropriate and beneficial to the public. Alfriend v. State Bar S172454 asks the California Supreme Court to fully implement the SB 1782 legislative mandate for admission on motion.

In the last five years, over 31,000 attorneys have been admitted on motion to the bar of another State without taking another bar examination. In California: Zero.

4. There Is No Reason Other Than Monopoly Protection for Rule 9.45 to Disqualify Legal Services Attorneys Representing the Indigent After Three Years.

Petitioner Kimberly Jane Alfriend is a member of the Maryland Bar working for the Children’s Law Clinic as a “registered legal services” attorney under Rule of Court 9.45. Rule 9.45. recommended by the Task Force authorizes a three year term limit for sister-state attorneys to appear in California Courts on behalf of the indigent. After three years they are disqualified unless they pass the California attorneys’ exam. Chief Justice Ronald M. George stated in his 2008 State of the Judiciary: “(T)hese children are among the most vulnerable members of our society.” Alfriend asserts Rule 9.45. is facially flawed because there is no reason to discriminate against more qualified sister-state attorneys in representing abused children; the experienced attorney exam is not job related; it has virtually nothing to do with the State and federal law that she works with. The State Bar of California is a public corporation created by the California Constitution. Alfriend asserts that she does not live by bread alone, and she requests full and equal reciprocal licensing privileges and immunities as a member of the bar of the California Supreme Court and State Bar.

5. There Is No Reason Other Than Monopoly Protection for Rule 9.46 to Treat Registered In-House Counsel as Second Class Citizens and Deny Them the Freedom to Appear in California Courtrooms When They are Eligible to Appear as Counsel in Every Other State in Our Union.

Petitioner Dennis E. Wiessner, Jr. is a licensed sister-state attorney, with seventeen years experience. He was on the Law Review at Catholic University, and he has completed a vigorous and comprehensive rite of passage, as have the other petitioners, including bar exam passage and graduation from an ABA accredited law school. He is a registered in-house counsel under California Rule of Court 9.46., and thus he has second class rights as an attorney.

Wiessner is Vice President and General Counsel for Sea Launch Company, L.L.C. (Sea Launch). Sea Launch is in the extraordinarily high-tech business of launching commercial communication satellites from sea-based platforms. Petitioner’s duties, as an attorney, include negotiating various contracts related to the Sea Launch $3.6 billion satellite based global telecommunications system, and supervising compliance with a small army of federal and international regulators. Petitioner, (and the other 800 similarly situated registered in-house counsel), are injured by Rule 9.46., because he is categorically disqualified, including pro hac vice admission, from representing and appearing in any California State courtroom at any time. Wiessner, by definition, is barred from appearing on behalf of his corporate employer, its subsidiaries or related entities, its officers or employees, his family members, or anyone else including providing pro bono services. On the other hand, petitioner is eligible for full and equal bar admission on motion in a majority of jurisdictions. Wiessner is eligible to appear as counsel in the courtroom of every State: Except California. He seeks full and equal licensing privileges and immunities as a member of the bar of the California Supreme Court and State Bar of California.

6. Foreign County Lawyers Have More Privileges and Immunities in California Than Sister-State Attorneys

The purpose of a licensing exam is to ascertain entry level competence and protect the public. Federal law is Supreme. Under the Court’s rules, foreign country lawyers are authorized to practice in California. Foreign lawyers are provided more licensing privileges than sister-state lawyers. If California is going to trust foreign lawyers to honorably engage in their profession: California should trust sister-state’s lawyers to honorably engage in their profession. In the European Union a lawyer licensed in any country can practice in every country.

7. The California Bar Exam for Experienced Attorneys: Bar Examiners on Steroids Providing Monopoly Protection by Paying Selective Attention to Entry Level Answers In An Assembly Line Grading Process

• The ABA adopted a first-time bar passage rate of at least 75%, or its member schools risk losing their accreditation. The ABA law school first-time pass percentage on the most recent California July bar exam is 83%.Compare the disparate impact statistics on the California July experienced attorneys’ examination, with the 75% first-time standard, and the minority of states still requiring experienced attorneys to reinvent the wheel, and take another bar exam.
  

Jurisdiction	Taking July	Passing July	Percent Passing July		Taking July	Passing	Percent Passing July			Taking July		Passing July		Percent Passing July
California	338	131	39%		325	92	28%			319		114		36%
Georgia	73	65	87%		79	69	87%			118		103		87%
Maine	10	9	90%		4	4	100%			10		8		80%
Maryland	75	69	92%		90	79	88%			90		86		96%
Mississippi	4	4	100%		3	3	100%			3		2		67%
N. Mariana Islands	6	5	83%		3	3	100%			5		4		80%
Rhode Island	20	16	80%		13	13	100%			16		15		94%
Utah	8	8	100%		9	8	89%			2		1		50%
TOTALS	536	307	57%		526	271	52%			563		333		59%

• Statistics, in general, informs most populations will have a Bell Curve shaped distribution, with 2/3 of the population within one standard deviation from the mean. According to this Court’s licensing agent, two out of three attorneys already licensed in other States, are a threat to the public and cannot be safely trusted to practice law in California. According to this Court’s licensing agent —contradicting the ABA, federal judicial studies, U.S. Supreme Court admission rules, and 39 States — experienced attorneys become less qualified with experience. The statistics reflect a quota.
  
  
• The reason 2 out of 3 experienced attorneys are failed is because the examination is calibrated to entry level. Experienced attorneys have a deeper knowledge and think on an entirely different level. Their answers reflect that knowledge and experience, and they are not what the assembly line graders are selecting for attention.
  

8. The California Bar Exam for Experienced Attorneys: 21st Century Censorship and Monopoly Protection via a 100% Subjective Test Nationally Respected Testing Experts Have Concluded Is Not a Valid or Reliable Measurement

• Dr. Stephen P. Klein, the California State Bar’s own testing expert, has expressly admitted 100% subjective tests are dangerous and should not be used in isolation for high-stakes credentialing decisions. (Ex. 108) (Emphasis added) ¹ This admission and undeniable material fact has been deliberately, with cavalier indifference, concealed from the California Supreme Court.
  
  
• The National Conference of Bar Examiners has rejected the reliability and use of 100% subjective tests to determine attorney competence. Dr. Case avows that non-multiple choice format tests such as performance tests “because of their limitations, such as low reliability, lack of anonymity, and lack of standardization, should not be used in isolation.” See Susan M. Case, “Licensure In My Ideal World,” The Bar Examiner, p. 27 November 2005.
  
  
• Dr. Phillip Ackerman is nationally renowned testing expert from Georgia Tech University. He under oath declares:“The scores on the Attorney’s Examination are determined in a manner that is not consistent with professional standards. The reliability of the test scoring procedures fails to reach a level that would be acceptable for high-stakes testing. (Specifically, inter-rater agreement is quite low, a correlation of .48 between raters indicates only 23% shared variance among ratings; source: Klein & Bolus; Gansk & Associates 2003.) An acceptable level of reliability for such high-stakes testing would be shared variance in the neighborhood of 70% or higher (corresponding to reliability of about .84 or higher).
  
  
• Dr. Ackerman further concludes the grading process is “arbitrary, because it ensures that some fixed portion of applicants will fail even though all or most of the applicants may in fact be qualified.” (In other words, a quota).
  
  
• Dr. Gary McClelland of the University of Colorado at Boulder: I have reviewed Dr. Phillip L. Ackerman's “Evaluation of the Psychometric Adequacy of the California Attorney’s Examination” dated February 15, 2008, and generally agree with it. Dr. Ackerman is a credible psychometrician as well. In my opinion, the lack of an explicit equating procedure for the Essay and Performance Test sections is a fatal flaw. The degree of inter-rater agreement is dreadful. I do not believe any scientist would ever publish data based on such low inter-rater agreement.
  

According to reports filed with the California Supreme Court, and buried so as to be unnoticeable, the inter-rater grader agreement for the attorney subjective tests proves you could flip a coin and have a higher correlation.

February 2001 reader correlation .41 (Ex. 78)

July 2001 reader correlation .48 (Ex. 80)

February 2002 reader correlation .38 (Ex. 82)

July 2002 reader correlation .40 (Ex. 84)

February 2003 reader correlation .48 (Ex. 86)

February 2004 reader correlation .39 (Ex. 88)

July 2004 reader correlation .41 (Ex. 90)

• Dr. Kane of the National Conference of Bar Examiners opines, “if it were feasible to evaluate performance in practice directly, this would be the preferred approach.” Michael T. Kane, “The Role of Licensure Tests,” The Bar Examiner, supra, p. 34 February 2005. According to the ABA, it is feasible; the preferred approach is to evaluate practice directly based on the attorney’s experience.
  

9. 21st Century Censorship and Monopoly Protection: The Cognitive Science of Expertise and Expert Performance Informs Licensing Officials Are Less Able to Measure Competence Than a Layman

• Cognitive science has concluded that the highest levels of expertise are characterized by contextually based intuitive actions that are difficult or impossible to report verbally.
  
  
• Scientific studies have found that: Measures of basic mental capacities are not valid predictors of attainment of expert performance in a domain; Systematic differences between experts and less proficient individuals nearly always reflect attributes acquired by experts during their lengthy training.
  
  
• As government officials stopped licensing printing presses based on content centuries ago, Dr. Gary Klein, in controlled scientific experimental tests has demonstrated licensing officials are less qualified to judge competence than novices and experts actually working in the profession. Dr. Klein played videotapes for three audiences: ten novices who had just finished an 8 hour CPR course; ten CPR instructors who were experienced teachers but have never performed CPR on an actual victim; and ten paramedics who had used CPR many times. Dr. Klein’s study asked each participant to imagine it was his or her life on the line. They had to identify one of six people in the videotapes who they would want to do CPR on them. Nine out of ten actual paramedics picked the actual paramedic. When asked why, they could not point to any one thing other than he seemed to know what he was doing. The novices generally chose the paramedic. Only three of 10 instructors chose the paramedic to save their lives. According to the instructors, the paramedic was not following the rules carefully and according to their instructions.
  

10. The California Supreme Court Should Take the Lead and Disavow State Licensing Rules That Provide “Your Attorney Get Admission on Motion if Our Attorneys Get Admission on Motion”

Many States in adopting admission on motion have departed from the ABA recommendation, and adopted quid pro quo reciprocity, i.e. “your attorneys get reciprocal admission if our attorneys get reciprocal admission.” The United States Supreme Court, however, in Piper, 407 U.S. at 281, held an attorney’s opportunity to practice is a fundamental right entitled to constitutional protection; Friedman, 487 U.S. at 60-61, holds the right to admission on motion is constitutionally protected. The State justification that attorneys from another jurisdiction may disserve their client by not learning its law has been rejected. Piper, 470 U.S. at 285-86. The High Court acknowledged that States that have put up licensing walls to protect their own lawyers from professional competition, and this is not a legitimate justification. Id. fn. 18

This “you get reciprocity if we get reciprocity” trading of constitutional rights, as if petitioners and other members of the bar were horses and not American citizens, offends the constitution. Privileges and immunities protected by the U.S. and California Constitution should not be for sale or barter.

Cognitive science informs that lawyers become lawyers by practice. There is no reason to presume an experienced lawyer who has practiced successfully in one State cannot continue to do so in another State. This is the ABA’s carefully studied conclusion.

¹See Stephen P. Klein, “What Do Test Scores in Texas Tell Us?” (Published 2000 by RAND) Dr. Klein admits: “Our (research) results illustrate the danger of relying on statewide test scores as the sole measure of student achievement when these scores are used to make high-stakes decisions about teachers and schools as well as students. We anticipate that our findings will be of interest to local, state, and national educational policymakers, legislators, educators, and fellow researchers and measurement specialists.”