Qualified But Barred

Executive Summary 

A few states, including Tennessee, penalize part-time workers with unnecessary occupational licensing requirements. The Tennessee Supreme Court requires that a lawyer be practicing full-time for five of the seven previous years to be admitted to practice without examination. Tennessee Rule 7, Sec. 5.01(c)1. Most states don’t require full-time work.  

The American Bar Association Model Rule on Admission by Motion does not mandate full-time work. It requires that an applicant has “been primarily engaged in the active practice of law” for three of the five immediately preceding years. The “active practice of law” includes “representation of one or more clients in the private practice of law.” 

Tennessee should revise its standards to follow the Model Rule, making it easier for part-time lawyers to get licensed. 

The difference between a lawyer practicing full-time and part-time is the number of hours the lawyer works, not expertise, experience, or skill. Often the hours gap is small.

Many of those affected by this rule are women, who now earn half (or more) of law degrees each year. Of the 6.2 percent of lawyers at law firms working part-time, more than 70 percent are women. Women make up about two-thirds of voluntary part-time workers. In fact, about 1 in 5 working women worked part-time voluntarily in 2016. In particular, many mothers prefer part-time work. Around 30% of moms with children under the age of 18 at home prefer to work part-time, according to a Pew Research Center study. 

Where to Submit Comments

The Network of Enlightened Women petitioned the Tennessee Supreme Court to remove the full-time work requirement from Tennessee Supreme Court Rule 7, Sec. 5.01(c)1. The Supreme Court of Tennessee published an order soliciting written comments on the issue referencing docket number ADM2022-00522 by August 12, 2022 to appellatecourtclerk@tncourts.gov.

You can read the submitted comments here.

Here is a link to the Court’s order, which includes the NeW petition. 

More Resources 

Why making it easier to work part time helps women in the workforce, The Tennessean (PDF version)
Qualified But Barred, City Journal (PDF version) 
Women shouldn’t be penalized for working part-time,Washington Examiner
Egregious Licensing Rule Holds Working Mothers Back in Tennessee by Vanessa Brown Calder, Cato Institute
Tennessee Supreme Court Rule 7 
Relevant ABA Model Rule 
National Center for Education Statistics Table 324.40
NALP: Rate of Part-Time Work Among Lawyers Unchanged in 2012 — Most Working Part-time Continue to Be Women

Proposed Amended Rule 7 

Rule 7: Licensing of Attorneys governs who may engage in the “practice of law” or the “law business” in Tennessee. Article V: Persons Admitted to Other Jurisdictions Seeking Waiver of Examination prescribes the Tennessee rules for admission for applicants to be admitted to the practice of law without taking the examination, known as comity. 

One requirement of comity is that an applicant shall, “have been primarily engaged in the active practice of law, as defined below, in one or more states or territories of the United States, or the District of Columbia, for five of the seven years immediately preceding the date upon which the application is filed.” Rule 7, Sec. 5.01(a)(3). 

The “active practice of law” is defined as including: (A) “full-time private or public practice as a licensed attorney; (B) teaching law full-time at a law school approved by the ABA; (C) service as a judicial law clerk or staff attorney; and (D) service as a Judge, Attorney General, Public Defender, U.S. Attorney, District Attorney, or duly registered In-House Counsel or Military Spouse.” Rule 7, Sec. 5.01(c)(1). 

Thus, for an applicant in private or public practice to be admitted without examination by Tennessee, the applicant must be practicing full-time: 40 or more hours per week. 

The Network of Enlightened Women petitioned the Supreme Court of Tennessee to strike the full-time requirement so that Tennessee Supreme Court Rule 7, Sec. 5.01(c)1 reads as follows:

Tennessee Supreme Court Rule 7, Section 5.01(c)(1) 

(c) Active Practice of Law. 

(1) For the purposes of this Rule, in addition to the definitions of “Practice of Law” and “Law Business” in section 1.01 of this Rule, the “active practice of law” shall include the following activities, if performed in a jurisdiction in which the applicant is admitted, or if performed in a jurisdiction that permits such activity by a lawyer not admitted to practice: 

(A) representation of one or more clients in the private or public practice as a licensed attorney; 

(B) teaching law at a law school approved by the ABA; 

(C) service as a judicial law clerk or staff attorney; and 

(D) service as a Judge, Attorney General, Public Defender, U.S. Attorney, District Attorney, or duly registered In-House Counsel or Military Spouse.

Questions

Please email Karin Lips at karin@enlightenedwomen.org.