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Oh, no, you don’t!

There is a concept in licensing law called reciprocity.

In the law generally, it means “mutuality. The term is used in international law to denote the relation existing between two states when each of them gives the subjects of the other certain privileges, on condition that its own subjects shall enjoy similar privileges at the hands of the latter state.”1

KY.lawyerSo in the licensing context, it means that a person who holds a professional or trade license in one state — a doctor, for example, or an electrician — can practice his profession or trade in another state, as long as that other state will let the first state’s licensees practice, too.

Think of it along the lines of “you scratch my back and I’ll scratch yours.”

This is nothing new.

You can see it in the laws of the states way back in American history.

And perhaps nowhere as bluntly as in the Acts of the General Assembly of Kentucky, passed at its 1808-09 session, in a law The Legal Genealogist stumbled across last night in reviewing laws for this weekend’s upcoming Family History Seminar and Book Fair sponsored by the Louisville Genealogical Society.

Now remember that in the early months of 1809, Kentucky was still fairly new at the statehood business — it entered the Union as the 15th state on 1 June 1792.2 And Ohio was even newer: it wasn’t admitted until 1803.3

And it’s clear the two new kids in the statehood sandbox were not playing as nicely together as they might.

It’s even clearer that it was — sigh — the lawyers who were throwing sand at each other.

Because here’s what Kentucky had to say in its laws, approved 9 February 1809:

Be it enacted by the general assembly, That no attorney or counsellor at law of the state of Ohio shall be permitted to practice law in any of the courts of this commonwealth until an act of the legislature of the state of Ohio prohibiting the attornies and counsellors at law of the state of Kentucky practising in the said state of Ohio be repealed : Provided nevertheless, that the attornies of the said state of Ohio may finish any suits in which they are now employed in the courts of this commonwealth.4

In 1792, Ohio was part of the Northwest Territory, and the laws then allowed anyone to practice if he was “a person of good and moral character and well affected to the government of the United States and this territory” who passed “an examination of his professional abilities before one or more of the territorial judges.”5

Then in 1799, still as part of the Northwest Territory, Ohio had limited law practice to those who had studied law in the territory for four years. Anybody who was admitted to practice elsewhere could be admitted in the Territory — but only after living there for a year.6 By an amendment in 1800, it limited the residence period to six months.7

When Ohio adopted its Constitution in 1803, it repealed the sections as to residence within the territory.8 In 1804 the Legislature weighed in: it required all lawyers to sit for an examination by Ohio’s judges and required every applicant to produce a certificate from someone already admitted proving that he “is of good moral character, … hath regularly and attentively studied law, and … (is) a person of sufficient legal knowledge and abilities to discharge the duties of an attorney or counsellor at law.” Except that didn’t apply to Ohio residents who’d been admitted elsewhere. They could be examined at any time.9

That, apparently, didn’t protect the turf of Ohio’s lawyers well enough. On 17 February 1808, the Ohio Legislature amended the law: “no person shall be permitted to practise as an attorney or counsellor at law … unless he possesses all the qualifications of an elector … of this state.”10 In other words, “white male inhabitants above twenty-one years of age.”11

It was that law in particular that, apparently, was what triggered Kentucky’s response in 1809. If Ohio was going to limit law practice to its citizens, well, then, its citizens couldn’t practice in Kentucky, by gorry.

And, no, the border war over attorney turf protection didn’t end there. You can, if you’d like, read Ohio’s 1810 attorney admission law.12 Or Kentucky’s laws respecting attorneys from Tennessee and the Northwest Territory 13 and from Indiana.14

You can even see how the states regulate attorney admissions today, and there you’ll find that — even today — Kentucky won’t let an attorney from another state play in its sandbox if that other state doesn’t let Kentucky attorneys play in its sandbox.15

Which is why when I’m asked, as I so often am, what the rules were about attorney admission back in the 19th century, I give my standard answer.

It depends.


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1001, “reciprocity.”
  2. John Anthony Caruso, “Kentucky: Struggle for Statehood,” The Appalachian Frontier: America’s First Surge Westward (Knoxville: University of Tennessee Press, 2003) 339.
  3. See “Historical Documents Celebrating the 200th Anniversary of Ohio Statehood,” The Center for Legislative Archives, Archives.gov (http://www.archives.gov/ : accessed 13 October 2015).
  4. William Littell, editor, The Statute Law of Kentucky, 4 vols. (Frankfort, Ky. : Robert Johnston, printer, 1814), IV:59-50; digital images, Google Books (http://books.google.com : accessed 13 Oct 2015).
  5. “An act to regulate the admission of attorneys,” in Salmon P. Chase, editor, The Statutes of Ohio and of the Northwestern Territory, Adopted or Enacted from 1788 to 1833 Inclusive… (Cincinnati: Corey & Fairbank, 1833), I:126-127; digital images, Google Books (http://books.google.com : accessed 13 Oct 2015).
  6. Ibid., §§2 and 11, “An act regulating the admission and practice of attorneys and counsellors at law” (29 Oct 1799), at 212-216.
  7. Ibid., “An act to amend the act, entitled ‘An act regulating the admission and practice of attorneys and counsellors at law’” (6 Dec 1800), at 295.
  8. Ibid., Ohio Constitution of 1803, Schedule, §4, at 84.
  9. Ibid., §3, “An act to regulate the admission and practice of attorneys and counsellors at law” (4 Feb 1804), at 404-405.
  10. Ibid., “An act to amend the act, entitled, ‘an act to regulate the admission and practice of attorneys and counsellors at law’” (17 Feb 1808), at 589.
  11. Ibid., Ohio Constitution of 1803, Article I, §2, at 75.
  12. Ibid., “An act to regulate the admission and practice of attorneys and counsellors at law” (27 Jan 1810), at 661-662.
  13. Littell, The Statute Law of Kentucky, II:40.
  14. Ibid., III:508.
  15. Chart 12: Reciprocity, Comity, and Attorneys’ Exams,” Comprehensive Guide to Bar Admission Requirements 2015, National Conference of Bar Examiners, NCBEX.org (https://www.ncbex.org/ : accessed 13 Oct 2015).
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