Commentary: Military spouses getting chance to practice law in Delaware

Starting on Nov. 1, the Delaware Supreme Court will permit military spouses who are attorneys in good standing in other states to apply for a Certificate of Limited Practice in Delaware without having to pass the Delaware Bar exam.

In doing so, Delaware joins other states that have created similar programs for military spouses. This is an important change and one that is uniquely tailored to address the special circumstances faced by military families who often find themselves required to move from place to place, and from state to state, on short notice in support of the nation’s defense.

Our military readiness is degraded when spouses engaged in the practice of law are unable to practice their profession when their military spouse transfers to a different jurisdiction. Often, transfers compel spouses to “stay behind” so they can continue to practice law. That, in turn, forces families to separate, which puts our military families in an untenable position. That practice cannot and, as we have recently noted, should not stand.

William Witham Jr.

Now that this change has been made, it may seem like it was a simple and easy thing to do. It was not. This change has only come after a long and deliberative process that required a great deal of effort by a large number of people. The Supreme Court and countless others have recognized that waiving passage of the Delaware Bar Examination is not something to be done lightly.

But after due consideration, it is something we decided needed to be done. Out of deference to our public, out of deference to our Bar, and out of deference to those who serve our nation’s defense, we proudly announce this rule.

This effort began in September 2012, when, in part because of my military background, then-Chief Justice Myron T. Steele asked me to assist the Military Spouse JD Network (MSJDN) with the adoption of a special rule to permit military spouses to engage in the limited practice of law in Delaware.

Chief Justice Steele, at the time, was the chair of a national organization – the Conference of Chief Justices – that supported this effort. In addition, the American Bar Association (ABA) passed a resolution urging states to adopt military spouse rules, regulations and procedures to accommodate their unique needs. Since that time, the nation has seen 37 jurisdictions adopt similar rules, and I am proud Delaware has now joined those ranks.

On average, military families move every two or three years. Service members have limited capacity to choose their next duty station and are often notified of transfers on short notice. This process limits a military spouse’s ability to register and prepare for a new state’s bar examination.

In addition, military spouse attorneys face unique challenges to their legal careers. According to a 2016 MSJDN survey, 87% report that their spouse’s service has affected their legal careers. Military affiliation is frequently a reason employers choose not to hire military spouse attorneys. Military spouse attorneys may also have gaps in their resumes and may not be able to shoulder the time and resources necessary to take an additional bar exam.

In 2018, our effort was augmented by Superior Court President Judge Jan R. Jurden, herself a veteran, as we continued to press for consideration of the rule. Our combined efforts led to a consensus and on Sept. 23, 2019, the Supreme Court adopted Rule 55.4 – Limited Permission to Practice as a Military Spouse.

This rule, which goes into effect next month, will help military families when they face transition and will also preserve the high caliber of attorneys we have allowed to practice law in this state.

This journey has been long. But it was been well worth the considerable effort. I am sure that military families appreciate this initiative as it reinforces the commitment that we, the Delaware Judiciary, have for those who serve us on a daily basis.

William L. Witham Jr. is a Delaware Superior Court resident judge and a retired colonel in the Delaware Army National Guard.

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