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Federal appeals court to consider
Louisiana rule against foreign lawyers

The Associated Press
Oct 3, 2004

NEW ORLEANS Two contradictory federal court rulings about whether Louisiana can keep foreigners from taking the state bar exam will be argued Tuesday.

The Louisiana Supreme Court asked the 5th U.S. Circuit Court of Appeal to overturn District Judge Eldon Fallon, who found its rule arbitrary and unconstitutional discrimination.

Earlier, another federal district judge had thrown out a challenge to the rule that foreigners may take the exam only if they are permanent residents of the United States.

When it created the new rule in early 2003, the state Supreme Court didn't say why it considered it necessary. Some lawyers speculated that it was plain xenophobia; others that the justices were tired of foreign lawyers forcing them to overturn death sentences.

In July 2003, District Judge Jay Zainey threw out a suit by three lawyers trained in France, all of whom had been working as paralegals in New Orleans.

In a 63-page ruling, he accepted the high court's argument that it could be almost impossible to track down files and evidence "should a non-resident alien be forced to leave the United States on unfavorable and sudden terms."

Fallon ruled two months later, in an American Civil Liberties Union lawsuit for Emily Maw of Wales, who had graduated from Tulane Law School, and British attorney Caroline Wallace.

He said aliens with temporary visas are "not necessarily more transient than other groups. Citizens and immigrant aliens may be admitted to the bar even if they have no intention of residing in Louisiana."

And, he noted, lawyers who move to other states remain members of the bar in the states they left.

"Due to advances in technology, attorneys can provide services and representation to clients from virtually anywhere," he wrote. "Louisiana attorneys retire, die, and leave the practice for a myriad of reasons."

Louis Koerner, for whom the French attorneys were working and who argued their case, has said Louisiana is the only state with a ban on nonresident aliens taking the bar. Nonresident aliens can take the Michigan state bar, but may not practice law.

A number of lawyers and civil rights groups have said that, if it stands, the rule will make it much harder for death row inmates to get competent legal help. Foreign-born lawyers, working as volunteers or for very little, often are the only ones willing to take on death row cases, says Joe Cook, executive director of the Louisiana branch of the American Civil Liberties Union.

As capital punishment in the United States has become increasingly criticized overseas, growing numbers of young Europeans have moved to the Deep South, passed bar exams and successfully defended death row prisoners and defendants facing possible death sentences.

Koerner's theory, argued in his suit, was that rule is the result of politics in a state where the death penalty is popular and judges are elected. Challengers can point to overturned death sentences, he said - but with fewer lawyers pointing out legal errors the justices won't be forced to overturn so many.

He's the first to say it's just a theory, and not proven.