Academic journal article Harvard Law Review

Constitutional Law - Equal Protection - Fifth Circuit Holds That Louisiana Can Prevent Nonimmigrant Aliens from Sitting for the Bar

Academic journal article Harvard Law Review

Constitutional Law - Equal Protection - Fifth Circuit Holds That Louisiana Can Prevent Nonimmigrant Aliens from Sitting for the Bar

Article excerpt

CONSTITUTIONAL LAW--EQUAL PROTECTION--FIFTH CIRCUIT HOLDS THAT LOUISIANA CAN PREVENT NONIMMIGRANT ALIENS FROM SITTING FOR THE BAR.--LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005).

For more than thirty years, Louisiana's indigent defense system has been the target of intense criticism. (1) Too many cases, too few attorneys, too much political interference, and too little funding threaten the fair administration of justice and the effective representation of poor defendants in the state. (2) One report estimates that indigent defense attorneys in Louisiana each take as many as 792 felony cases per year, more than five times the national workload standard. (3) Hurricane Katrina has only exacerbated the situation. (4)

Recently, in LeClerc v. Webb, (5) the Fifth Circuit held that the State of Louisiana could prevent six nonimmigrant alien lawyers--some of whom were working with indigent clients (6)--from sitting for the bar. (7) The court reasoned that transient nonimmigrant lawyers could upset the accountability and continuity of the profession, which could in turn degrade the quality of legal services in Louisiana. (8) Considering Louisiana's indigent defense attorney shortage, this result is puzzling; moreover, no other state has a similar rule. (9) Closer examination reveals a short-sighted and bureaucratic decision that misconstrues precedent and misapplies equal protection analysis. The paradox of LeClerc is that in seeking to protect clients from bad lawyers, the decision could leave some of the most vulnerable clients in the state with even less effective representation.

Maureen Affleck, Beatrice Boulord, Guillame Jarry, Karen LeClerc, Emily Maw, and Caroline Wallace are foreign lawyers working in Louisiana under various visa classifications. (10) In 2000 and 2001, Affleck and Wallace applied for equivalency determinations in the hopes of sitting for the Louisiana bar, (11) but officials told them that nonimmigrant aliens could not take the examination. (12) Maw, who had attended an American law school and did not have to prove equivalency, was denied access to the examination for the same reason. (13) Subsequently, the six lawyers sought declaratory and injunctive relief in two separate suits on a variety of constitutional claims against the Louisiana Supreme Court and the Committee on Bar Admissions.

The district court opinions in LeClerc v. Webb (14) and Wallace v. Calogero (15) were separated by about three months and were nearly identical in every respect, except in their resolution of the plaintiffs' equal protection claims. In both cases, the defendants argued that the state's requirement is appropriate because transient lawyers who could relocate to foreign countries could potentially frustrate client continuity and undermine professional accountability. (16) The courts agreed that such regulation is permissible only so long as the state's bar "admission policies and procedures [do not] run afoul of the Equal Protection Clause." (17) At this point, the two opinions parted ways. The LeClerc court determined that the Supreme Court's holding in In re Griffiths, (18) which found that Connecticut's complete exclusion of aliens from the bar violated the Equal Protection Clause, (19) was limited by its facts to include immigrant resident aliens only. (20) Because this and other cases had not explicitly addressed whether nonimmigrant aliens qualify as a suspect class, the district court decided not to "expand strict scrutiny status" to that population. (21) As a result, the LeClerc court applied rational basis review. (22) The Wallace court took the opposite approach, reasoning that "[n]othing ... in the [Griffiths] Court's opinion suggests that 'resident alien' is limited to an immigrant alien," and therefore nonimmigrant aliens must fall into the general alien suspect class. (23) Accordingly, state action affecting them must survive strict scrutiny. These standards proved dispositive: under LeClerc's deferential review, the Louisiana bar rule excluding nonimmigrant aliens survived; under Wallace's strict scrutiny, it was declared "unenforceable. …

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