The Need to Bring the Professional Regulation of Lawyers into the 21st Century
Professor Bruce A. Green
Assisting Clients with Multi-State and Interstate Legal Problems:
The Need to Bring the Professional Regulation of Lawyers into the 21 st Century
A. The UPL Provisions and Their Uncertain Scope
B. Judicial Decisions and Their Limited Guidance
A. Uniformly Defining the Restriction on Out-of-State Lawyers
B. Uniformly Providing for the Limited Admission of Out-of-State
C. Uniform Rules on General Admission of Out-of-State Lawyers
D. Additional Regulatory Proposals
Part I(Introduction) describes the impact that the globalization of businesses and law practice has had on clients' needs for their lawyers to represent them in matters occurring in several states and internationally. The background leading to the Symposium and its structure and purposes are described.
Part II(Brief Overview of UPL Problems) describes the variations in UPL regulations in the United States jurisdictions, the ambiguity of the regulations, and the lack clarification through judicial decisions.
Part III(Problems Presented by Existing Regulatory Processes) describes the problems that lawyers face under existing regulatory provisions and processes. Because the UPL regulations lack specificity, lawyers face questions about what they may do outside the states where they are licensed. This is a particular problem in transactional work, since business transactions frequently implicate more than one state but there are few clear guidelines for permissible activities. Serious questions also are present for an in-house corporate counsel whose office is in a state where the lawyer is not licensed or who gives advice to corporate divisions or affiliates in different states. Although litigators may be admitted pro hac vice to appear in a lawsuit for a client in a state where the lawyer is not admitted, litigators also face problems, such as with respect to work outside the state where the proceeding is taking place, work prior to the filing of a lawsuit, or behind-the-scenes activities. Although UPL enforcement proceedings against lawyers are rare, lawyers are concerned about that risk and, even aside from the risk of enforcement, conscientious lawyers seek to avoid violating relevant UPL provisions. As a result, clients may be deprived of their preferred lawyer or be put to the expense of hiring multiple lawyers.
Part IV(Alternative Approaches) notes that participants identified three broad goals for reforming the existing regulatory system. First, there is a need to promote greater uniformity in how jurisdictions address the work of out-of-state lawyers. Second, there is a need for greater clarity, so that lawyers have more guidance about what they may or may not do in relation to a state where they are not licensed. Third, restrictions on the work of out-of-state lawyers should be liberalized so as to serve the relevant state regulatory interests in a manner that is not simply exclusionary and that, recognizing the changing nature of clients’ legal needs, accommodates the legitimate interests of clients in retaining counsel of choice and in obtaining effective and economical legal assistance.Additionally, participants identified various avenues to explore to achieve these broad goals. Possibilities include:The Conclusion notes that developing solutions to the problems encountered by clients and their lawyers in multi-state representations is a matter of considerable importance for the bench and bar to address. Participants suggested that a broadly representative ABA Commission should be charged to develop proposed solutions and policy recommendations.
- uniform state laws setting forth the restrictions on out-of-state lawyers more narrowly and more clearly;
- uniform state laws permitting out-of-state lawyers to receive permission to render a broader array of legal services in the state;
- uniform state laws allowing out-of-state lawyers more liberally to be admitted to the state bar for general purposes;
- regulatory reforms, including a national registration system, mandatory malpractice insurance coverage, uniform national CLE requirements, adoption of uniform choice-of-law provisions.
Assisting Clients with Multi-State and Interstate Legal Problems:Bruce A. Green *
The Need to Bring the Professional Regulation of Lawyers into the 21 st Century
A. The UPL Provisions and Their Uncertain ScopeIn connection with the Fordham symposium, ALAS compiled the UPL laws in the fifty states and the District of Columbia. 12 Even a cursory review makes two points plain. First, these laws vary considerably from state to state. Some states codify their restrictions in criminal statutes, others in civil statutes, others in court rules, and others in some combination of these. Some provisions simply proscribe "the practice of law" by those who are not licensed in the state, while others make some attempt, at least in general terms, to define "the practice of law."Second, none of these UPL provisions explains precisely what an out-of-state lawyer may or may not do in relation to the state. 13 At best, state laws specifically address only a few among the many services that out-of-state lawyers might render. All states allow out-of-state lawyers to be admitted to practice before a state court on a pro hac vice basis. A small number have additional provisions permitting in-house corporate lawyers to practice law in the state upon application, subject to restrictions. Otherwise, as Professor Carol A. Needham has observed, although "[m]ultijurisdictional practice has become the norm, rather than the exception," UPL provisions "make no distinction between ordinary legal work performed by out-of-state lawyers and advice given by persons who have no legal training at all." 14Because the UPL provisions lack specificity, it is unclear on their face how they apply to lawyers in many contexts. With respect to advocates, the provisions for pro hac vice admission in state court proceedings confirm the conventional understanding that, without judicial authorization, a lawyer may not appear before a court of a state in which the lawyer is not licensed. But, this leaves many unanswered questions for advocates working in contexts analogous to litigation or related to litigation. For example, does the UPL restriction also forbid out-of-state lawyers from appearing in an administrative proceeding, in a court-authorized arbitration, in a private arbitration, or in a mediation that takes place in the state? 15 Does the restriction apply to conduct undertaken in the state in anticipation of a possible state-court litigation - e.g., interviewing the client, conducting investigation and research, drafting documents, or attempting to negotiate a resolution of the dispute? Does the restriction apply to a lawyer who, in connection with a proceeding in a jurisdiction where the lawyer is admitted, engages in conduct, such as witness interviews or depositions, in another state? If the UPL laws apply in any of these contexts, the practical effect may be to exclude out-of-state practitioners entirely, since (as Birbrower illustrates) pro hac vice admission may be unavailable.With respect to in-house corporate counsel, a handful of states have provisions for their special admission. These provisions were reviewed by Professor Needham in connection with the symposium 16 as well as in some of her prior writings. 17 In general, these provisions apply to lawyers who work full-time within a corporation or other organization but whose office is in a state where the lawyer is not licensed. The lawyer is permitted to register as an in-house lawyer, thereby submitting to the state’s regulatory authority, and upon doing so, to provide particular services (e.g., legal advice) to the employer. 18Apparently, the view of those who enacted these provisions was that, without special authorization, an in-house corporate lawyer would be barred by the UPL laws from having a principal office in a state where the lawyer is not licensed. That would be consistent with the conventional understanding that a private practitioner may not establish a permanent law office in a state where the lawyer is not licensed. 19 It is unclear, however, in states that do not provide for special admission, whether UPL laws require in-house lawyers to be admitted to practice in the state before, or soon after, relocating to an office in that state. 20 Assuming that is the general requirement, many uncertainties remain. For example, if an in-house lawyer is licensed in, and has her principal office in, State A, may she travel temporarily to State B to provide advice to corporate representatives there and, if not, may she provide advice to them by telephone (or by fax or e-mail) while remaining in State A? Does the answer depend on whether she is providing advice on the law of State B or on other law - e.g., federal law or another state’s law? Does the answer depend on whether the lawyer is advising the corporate officers or employees solely in their representational capacity or also in their personal capacity? Does the answer depend on the subject of the advice - e.g., whether the advice relates to a potential litigation, a pending lawsuit, an arbitration proceeding, a regulatory question, or a business transaction?At least two states, Michigan and Virginia, address some of these questions by specifically permitting occasional or incidental practice by out-of-state lawyers. Michigan’s UPL statute provides that its prohibition "does not apply to [an out-of-state lawyer] while temporarily in this state and engaged in a particular matter," while the Virginia rules permit an out-of-state lawyer to provide "legal advice or services in Virginia to clients . . . on an occasional basis only and incidental to representation of a client whom the attorney represents elsewhere." It is unclear whether these provisions merely codify understandings that exist in all the states or whether they carve out a specific exception that is not recognized in other states.As Professor Needham discusses, transactional lawyers in private practice face a variety of questions, like those confronting in-house lawyers, concerning the scope of the UPL laws. Indeed, because of the unavailability of pro hac vice provisions for transactional representation, symposium participants took the view that the current regulatory mechanism poses the most vexing problems for outside transactional lawyers. For example, if a lawyer is licensed in State A, does the lawyer violate the UPL law of State B if she travels to state B in connection with a transaction? Does the answer depend on why she travels there - e.g., whether her purpose is to meet with the client, to negotiate with the client’s counterpart in the transaction, or to meet with a third party who has information relevant to the transaction? Does the answer depend on whether or not the client is a resident of State B, on the extent to which the subject of the transaction relates to State B (e.g., whether the transaction involves property located in State B), or on whether it is agreed that the transaction shall be governed by the law of state B? Does the answer depend on whether the service provided by the lawyer - e.g., negotiating a contract or providing business advice - is one that could lawfully be provided by a nonlawyer as well as a lawyer? 21 Most UPL provisions, at least on their face, do not answer recurring questions such as these.
B. Judicial Decisions and Their Limited GuidanceOrdinarily, lawyers can seek guidance about the meaning of ambiguous statutes and rules in judicial opinions. 22 In the case of the UPL laws, there are, at least in theory, a variety of contexts in which courts might speak. As discussed by Robert A. Creamer and Joseph R. Lundy of ALAS in the separate papers they prepared for the symposium, 23 the UPL laws may be employed against out-of-state lawyers in criminal or contempt prosecutions, in disciplinary proceedings, in legal malpractice actions, or by the client in defense of a fee action. Further, at least in some states, courts may issue advisory opinions about the scope of UPL provisions, and a party in adversary proceedings might invoke the UPL law as a basis for seeking an out-of-state lawyer’s disqualification. The reality, however, is that, by all accounts, the UPL provisions have been invoked infrequently. Thus, although lawyers may perceive that they are at risk when they venture in a professional capacity beyond the states where they are licensed, state court opinions cast relatively little light on the extent to which lawyers may safely proceed on behalf of clients with multi-state or interstate legal matters.Indeed, like the UPL laws themselves, state court decisions interpreting these laws tend to raise more questions than they answer. Professor Charles Wolfram made this point in a 1995 article in which he reviewed UPL decisions. 24 Similarly, in an article prepared for the symposium, Anthony E. Davis highlighted three significant state court decisions that illustrate this problem. 25In the earliest of the three decisions, Spivak v. Sachs, 26 New York’s highest court held that a California lawyer violated the state’s UPL law when he gave advice to a New York resident concerning her pending Connecticut divorce action, with respect to which she also had retained both New York and Connecticut counsel. As Davis notes, this opinion, which has never been overruled, seems to belie the conventional understanding that an out-of-state lawyer may give advice or render other assistance as long as "local counsel" is retained. Further, as Professor Wolfram discussed, the opinion left many other uncertainties that remain unresolved. For example, it is unclear whether the court would have held the lawyer to have acted in violation of the UPL law if the subject of his advice had not been New York law, if he had not come to New York to advise the client, if he had remained in New York for a less extensive period, or if the client had not been a New York resident. 27The second highlighted decision was issued by the New Jersey Supreme Court regarding the work of out-of-state bond lawyers. 28 The court found that, ordinarily, the state’s UPL law would categorically forbid out-of-state lawyers from advising New Jersey government bodies concerning the issuance of state and municipal bonds. The court decreed, however, that out-of-state bond counsel will be allowed to render this service in contexts where complex or novel questions are raised, because it may serve the public interest for the government to retain out-of-state lawyers with particular expertise regarding this specialized area of law practice. As Davis notes, the opinion leaves some ambiguity about which particular bond issues call for the special expertise of out-of-state law firms. More importantly, it leaves open questions for lawyers other than bond lawyers as well.For example, the opinion does not specify in what other situations New Jersey clients may retain out-of-state lawyers who have special expertise. Nor does it indicate whether a New Jersey client might sometimes be permitted to retain an out-of-state lawyer to assist in a transaction because of considerations aside from the lawyer’s special expertise regarding a complex matter.The third decision, Birbrower, 29 is the one that sparked concerns within the legal community about the scope of UPL provisions and the state-based regulatory process generally. The California court applied its state’s UPL law to a New York law firm which rendered services relating to a commercial dispute that was subject to arbitration in California under that state’s law. The law firm’s services included advising a New York company and its California affiliate, filing an arbitration claim in California, and negotiating a settlement of the dispute before proceedings commenced. The law firm’s services were rendered partly in California, but primarily in New York. As noted shortly after the case was decided,The California decision applying the state's UPL statute to the multijurisdictional work of litigators flies in the face of contemporary practice. Multijurisdictional practice has become a fact of life. Most observers believe that the relevant issue of professional regulation is not whether lawyers may lawfully practice across state and national borders, but which jurisdiction’s set of ethical rules should govern their conduct when they do so. The ABA has addressed this issue through its adoption of Model Rule 8.5, a model choice-of-law rule. . . . These observers might well view the California decision as a nineteenth-century solution to what is only a few years short of being a twenty-first century problem. 30The Birbrower decision raises questions not only for lawyers participating in an out-of-state arbitration, but also for lawyers engaged generally in transactional representation, since, as Davis discusses, the conduct that was deemed impermissible for an out-of-state lawyer essentially consisted of "giving advice on a contract governed by California law to a California resident client." The opinion cast doubt on whether out-of-state lawyers may play such a role even if local counsel is engaged. Further, it left questions as to whether the UPL law would apply the same or differently if the New York lawyers had not worked physically in California, had resolved the dispute prior to filing an arbitration claim, or had rendered services exclusively for the non-California client, or if the dispute had been governed by a different state’s law. Although, in the aftermath of Birbrower, the state provided for pro hac vice admission of out-of-state lawyers in arbitration proceedings, some of these questions persist in California, and may, of course, be raised in states where there are no judicial decisions or rules specifically addressing whether and to what extent an out-of-state lawyer may render assistance in connection with an arbitrable dispute.
A. Uniformly Defining the Restriction on Out-of-State LawyersOne possibility is to develop and promote a model uniform UPL law that codifies appropriate understandings about what is and is not permissible for out-of-state lawyers. The law would be explicit about what it means to "practice law in" a given jurisdiction. 37 Among other things, the provision might specifically authorize out-of-state lawyers to perform legal work that is temporary or incidental to legal work being performed elsewhere. Participants noted that, in addition to taking into account the increasing likelihood that clients’ legal problems will implicate multiple states, a model law should also take into account changes in communications technology that enable a lawyer easily to communicate with clients, potential clients, and others around the country and, arguably, enable a lawyer to practice law "in" a state without ever setting foot in that state. 38Section 3 of the Restatement of the Law Governing Lawyers 39 provides a possible starting point, if not a possible model, for a rule defining permissible interstate law practice. This provision would accommodate much interstate and multi-state practice by allowing a lawyer to provide legal services outside the state where the lawyer is admitted to practice (whether regularly or temporarily) as long as "the lawyer’s activities arise out of or are otherwise reasonably related to the lawyer’s practice" where the lawyer is admitted. Possible amendments to ABA Model Rule 5.5 that are now under consideration would take a similar approach. These provisions may influence courts when they interpret the existing UPL laws and may provide guidance to lawyers when, as is often true, the existing laws are ambiguous. The Restatement itself identifies the need to consider a more liberal approach than the one it ultimately adopted. A comment to Section 3 of the Restatement observes that "there is much to be said for a rule permitting a lawyer to practice in any state, except for litigation matters or for the purpose of establishing a permanent in-state branch office." If a broad professional and judicial consensus could be developed behind this or another model rule, state legislatures and courts might be persuaded to adopt it in place of their present UPL restrictions as they apply to lawyers.In addressing the possibility of a uniform approach to interstate and multi-state law practice, several of the writings made available to symposium participants pointed to the admission and regulation of lawyers in the European Union as a possible model. 40 For example, this is the subject of a forthcoming article made available to symposium participants by Professor Roger J. Goebel. 41 According to Professor Goebel, "the legislation and case law in the European Union not only recognizes the right of lawyers to carry out interstate legal practice on a temporary basis, but also the right of EU lawyers and law firms to set up permanent offices in Member States other than those in which their initial legal practice capacity has been recognized." Professor Goebel found that "the liberalization within the last twenty-five years of the rules governing interstate legal practice on a temporary or occasional basis in the European Union . . . has occurred without any evidence of significant functional problems or risks to clients . . .." He concluded that the EU’s liberal approach to interstate legal practice is preferable to the restrictive United States approach in serving the relevant public and judicial regulatory interests while at the same time serving society’s interest "in promoting modern, efficient interstate commerce."
B. Uniformly Providing for the Limited Admission of Out-of-State LawyersAnother possibility is to promote broader, nationally uniform provisions dealing with the admission of out-of-state lawyers for limited or specified purposes or for a limited period of time. 42 The traditional pro hac vice provisions for litigators, and the more recent special admission provisions for in-house lawyers, might serve as models for broader special admissions provisions. Provisions dealing with the limited admission of foreign lawyers (e.g., as "foreign legal consultants") might also serve as models. Through provisions of this nature, state laws might carve out broader areas of practice that would be permissible for out-of-state lawyers who registered within the state and who submitted to the state’s disciplinary process. 43Some participants suggested that, if UPL provisions are liberalized along any of these lines, so as to permit lawyers to give broader assistance in legal matters bearing on states where they are not licensed, lawyers in multi-state or inter-state practice should have a corresponding disclosure obligation. That is, to facilitate clients’ ability to make an informed decision about whom to retain, lawyers who proposed working in states where they are not licensed should so inform prospective clients.
C. Uniform Rules on General Admission of Out-of-State LawyersAlternatively, states might be encouraged to adopt uniform provisions that enable out-of-state lawyers to be admitted to practice for all purposes (or for all but specified purposes 44) in the state. For example, each state might provide for the "reciprocal admission" of a lawyer licensed by any other state that has the same provision. 45 Professor Stephen Gillers has suggested that, short of a national solution, by compact or similar agreement among states, a group of individual states might agree reciprocally to admit each other’s lawyers in this manner. Anthony Davis’s paper suggested that this same result could be achieved, in effect, if states uniformly agreed to exclude lawyers from the reach of their UPL provisions. Another alternative is to liberalize, and expand the availability of, current rules that, in some states, permit a lawyer to be admitted on motion (without taking the state’s bar examination) if the lawyer has been in practice elsewhere for a specified period of time.The discussion underscored that those undertaking reform would confront questions not only about the content of proposed licensing and regulatory measures but also about how they could be implemented, especially if one objective is to promote uniformity among the states. Some participants noted the possibility of achieving national admission of lawyers, or other reforms, through federal legislation. 46 Many, however, expressed a strong preference for preserving both state regulation of lawyers generally and the regulatory authority of state judiciaries in particular, and spoke of the need therefore to work within the existing regulatory framework.
D. Additional Regulatory ProposalsFinally, specifically focusing on the states’ interest in insuring that out-of-state lawyers who practice within their borders are well regulated in addition to being well qualified, participants identified several other possible reforms. One possibility is to establish a national registration system, to be funded by fees from lawyers who practice interstate, to make it easier for regulators and prospective clients to ascertain relevant information about a lawyer, including a lawyer’s prior disciplinary history. 47 Another is to require lawyers practicing interstate to have at least a certain level of malpractice insurance coverage. Uniform national CLE requirements would promote the state interest in promoting lawyer competence, while a uniform choice-of-law provision might address the concern that out-of-state lawyers should abide by the disciplinary rules of the jurisdiction in which they are practicing. 48
1See, e.g.,ABA Model Rules of Professional Conduct, Rule 5.5.
2See, e.g., "Preserving the Core Values of the American Legal Profession, The Pace of Multidisciplinary Practice in the Law Governing Lawyers," Report of the New York State Bar Association Special Committee on the Law Governing Firm Structure and Operation (April 2000); ABA Commission on Multidisciplinary Practice Report with Recommendations to the House of Delegates (July 2000).
3New York State Bar Report, supra note 3, at 8.
4Id.at 87. See also Introduction, ABA Commission on Multidisciplinary Practice: Issues and Developments (January 1999) ("As the global economy expands, both Wall Street and Main Street business clients look to teams of professionals from different disciplines for consolidated advice on complex commercial and regulatory issues"); Report with Recommendations, supra note 3, at 5 ("Moreover, the Commission repeatedly heard testimony that the nature of the problems faced by individuals and organizations has become increasingly complex, requiring multidisciplinary assistance and not solely legal advice.").
5New York State Bar Report, supra note 3, at 15; see also id. at 41.
7949 P.2d 1 (Cal. 1998).
8ALAS reported that approximately 1,500 lawyers participated in its telephone seminar on this subject.In the past two years, concerns have also been expressed in response to proposed changes to the ABA Model Rules of Professional Responsibility and, in particular, to Rules 5.5 (dealing with unauthorized practice of law) and 8.5 (dealing with choice of law), that are under consideration by the ABA’s Commission on the Evaluation of the Rules of Professional Conduct. The Commission is considering whether to add a provision to Rule 5.5 to provide that, outside judicial proceedings, an out-of-state lawyer does not engage in the unauthorized practice of law when: "(i) a lawyer who is an employee of the client acts on the clients behalf or, in connection with the client’s matters, on behalf of the client’s other employees or its commonly owned organizational affiliates; (ii) the lawyer acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer’s practice on behalf of a client in a jurisdiction in which the lawyer is admitted to practice; or (iii) the lawyer is associated in a particular matter with a lawyer admitted to practice in this jurisdiction." Commission on the Evaluation of the Rules of Professional Conduct, Proposed Rule 5.5 (Public Discussion Draft, April 18, 2000).
9The symposium was organized by a committee with the assistance of the staff of the ABA Center for Professional Responsibility and, especially, John A. Holtaway.
10Participants were a broadly representative group. Among them were state judges (including the Chief Justices of Delaware and North Dakota and a Texas Supreme Court Justice); representatives of state disciplinary, regulatory and bar admissions agencies and of national organizations such as the National Conference of Bar Examiners and the National Organization of Bar Counsel; representatives of the ABA (including many ABA Sections and Committees) and state bar associations; legal academics; and practicing lawyers from a broad array of practice and geographical settings. A list of participants is appended to this Report. Needless to say, participants at the symposium expressed varying and, in some cases, differing views, and therefore the views described in this Report may not have been shared by all participants and should not be ascribed to all participants or to the American Bar Association.
11Most of the writings were collected in a volume, "Symposium on the Multijurisdictional Practice of Law," which was distributed prior to the symposium, while several other writings were made available at the symposium itself. Unpublished papers prepared in connection with the symposium are available at www.abanet.org/cpr/mjp/home.html.
12ALAS, "Statutes and Rules Limiting Multijurisdictional Law Practice from 51 United States Jurisdictions" (2000).
13One symposium participant, William Barker, has observed that "[t]he only really detailed guidelines available are those laid down in Florida v. Savitt," 363 So. 2d 559 (Fla. 1978), in which a consent decree was entered concerning the conditions under which an out-of-state law firm could maintain a local Florida office. William T. Barker, "Extrajurisdictional Practice by Lawyers" at p. 6.
14Carol A. Needham, "The Application of Unauthorized Practice of Law Regulations to Attorneys Working in Corporate Law Departments" at p. 14.
15See, e.g., Z.A. v. San Bruno Park School Dist., 165 F.3d 1273 (9 th Cir. 1998) (California UPL law held to forbid out-of-state lawyer from providing legal assistance, as distinguished from lay advice, in connection with state administrative proceeding); Ill. St. Bar Advis. Op. 94-05 (1994) (Illinois UPL law applicable to state arbitrations of labor union grievances).
16Carol A. Needham, "The Application of Unauthorized Practice of Law Regulations to Attorneys Working in Corporate Law Departments."
17Carol A. Needham, Splitting Bar Admission into Federal and State Components: National Admission for Advice on Federal Law, 45 Kan. L. Rev. 453 (1997); Carol A. Needham, The Multijurisdictional Practice of Law and the Corporate Lawyer: New Rules for a New Generation of Legal Practice, 36 S. Tex. L. Rev. 1075 (1995).
18For example, Florida has an "authorized house counsel rule," which its Supreme Court adopted in 1994 and amended last year. See Amendments to the Rules Regulating the Florida Bar-Chapter 17, 1999 Fla. LEXIS 413 (Mar. 18, 1999). The rule allows an in-house corporate lawyer who is licensed outside Florida to register as an "authorized house counsel." Once registered, the lawyer may give advice to the corporation and its constituents, negotiate and draft documents for the corporation, and represent the corporation in dealings with state agencies. It does not permit the lawyer to appear as counsel in court, administrative proceedings, or agency proceedings, unless the lawyer is specially admitted (i.e., admitted pro hac vice) by the court or other body. Similarly, Ohio Supreme Court Rule 6 allows in-house corporate lawyers who are admitted in other states to register for "corporate status," and then to perform legal services in the state solely for the corporate employer, other than appearing in court or agency proceedings.
19See, e.g.,Perlah v. S.E.I. Corp., 612 A. 2d 806 (Conn. App. 1992); Brookens v. Comm. On Unauth. Prac. Of Law, 538 A.2d 1120 (D.C. 1988) ; Cleveland Bar Ass’n v. Misch, 695 N.E.2d 244 (Ohio 1998). Even this principle presents uncertainties, however. For example, to what extent may a law office be staffed by lawyers who are licensed in other states? Is it sufficient if at least one lawyer in the office is a member of the particular state bar, or must the office’s managing lawyer be admitted in that state? To what extent must lawyers admitted in the state supervise lawyers who are admitted elsewhere? Which services may out-of-state lawyers render with supervision and which may they render without supervision? May they counsel clients and sign legal documents? In what contexts and to what extent must they disclose that they are not licensed in the particular state?
20Some authorities suggest that an in-house corporate lawyer ordinarily must be licensed in the state where the lawyer’s office is located, see, e.g., Oklahoma Bar Assn. Legal Ethics Comm., Legal Ethics Op. 289 (1976), while others suggest that in-house corporate lawyers may provide certain services, such as drafting and counseling, even though they are not licensed in the state where the services are provided. See, e.g., Alabama Ethics Op. No. 86-52 (1986); N.J. Supreme Court Comm. on Unauthorized Practice, Op. No. 14 (1975).
21For certain purposes, lawyers are considered to be engaged in the practice of law even when they render particular services that nonlawyers may lawfully provide. For example, private practitioners who negotiate and draft contracts would generally be thought to be practicing law for purposes of disciplinary rules governing the attorney-client relationship. They might not be considered to be practicing law, however, for purposes of evidence law governing the attorney-client privilege. It is not a foregone conclusion that lawyers in transactional representations are invariably "practicing law" for purposes of UPL provisions. But see Lozoff v. Shore Heights, Ltd., 362 N.E.2d 1047 (Ill. 1977) (Illinois UPL law held applicable to role of out-of-state lawyer in real estate transaction in which client also had local counsel).
22Further, at least with respect to state disciplinary rules, in the absence of authoritative judicial opinions, lawyers ordinarily may find some guidance in bar association opinions and in secondary literature. At one time, bar association committees were receptive to rendering opinions interpreting state UPL laws or interpreting disciplinary rules that incorporate these laws by reference, such as those patterned on ABA Model Rule 5.5 or ABA Model Code, DR 3-101. However, bar associations have generally become reluctant to do so, most likely to avoid raising antitrust concerns.
23Robert A. Creamer, "Private Practitioner Issues With Multijurisdictional Law Practice in Litigation Matters;" Joseph R. Lundy, "Private Practitioner Issues With Multijurisdictional Law Practice in Transactional and Other Litigation Matters."
24Charles W. Wolfram, Sneaking Around in the Legal Profession: Interjurisdictional Unauthorized Practice by Transactional Lawyers, 36 S. Tex. L. Rev. 665, 694-701 (1995). An extensive review of UPL decisions is also undertaken in Barker, supra note 14. Additionally, relevant decisions are collected in the Reporter’s Note to Section 3 of the Restatement (Third) of the Law Governing Lawyers.
25Anthony E. Davis, "Multijurisdictional Practice by Transactional Lawyers - Why the Sky Really Is Falling."
26211 N.E.2d 329 (N.Y. 1965).
27For other UPL decisions of the same era which address legal practice relating to multiple states, see In re Estate of Waring, 221 A.2d 193 (N.J. 1966); Apple v. Reiner, 204 A.2d 146 (N.J. 1964); and Lamb v. Jones, 202 So.2d 810 (Fla. Dist. Ct. App. 1967), all of which are discussed in Barker, supra note 13, at 12-13.
28In the Matter of Opinion33 of theCommittee on the Unauthorized Practice of Law, 733 A.2d 478 (N.J. 1999).
29Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, 949 P.2d 1 (Cal. 1998).
30Bruce A. Green, "The Ten Most Common Ethical Violations," Litigation, vol. 24, p. 48, 63 (Summer 1998) (citing Mary C. Daly, Resolving Ethical Conflicts in Multijurisdictional Practice--Is Model Rule 8.5 the Answer, An Answer, or No Answer at All?, 36 S. Tex. L. Rev. 715 (1995)).
31Peter R. Jarvis, "Where You Stand Depends on Where You Sit: One Litigator’s View of Multijurisdictional Practice Issues and Related Policy Questions."
32See, e.g.,Fought & Co. v. Steel Engineering & Erection, Inc., 951 P.2d 487 (Haw. 1998).
33Participants suggested that in rural areas on state borders, the impact of state UPL laws on individual clients may be even more harsh. For a middle- or low-income client in a border town, a lawyer just across the border may be the only available lawyer who is qualified and affordable (or willing to undertake the representation without a fee).
34Cf.Wolfram, supra note 24, at 677-78 (noting the potential expense and delay in having to associate multiple counsel in multi-state transactions, and noting the fiction that out-of-state lawyers submit to the supervision of local counsel).
35Lundy, supra note 23, at 5-12
37Some participants noted the possible difficulty of this undertaking. See, e.g., Davis, supra note 26, at 16-17 (discussing ambiguity of proposed definition of the practice of law).
38See, e.g.,id.at 13-14 (discussing South Carolina rule regulating out-of-state lawyers’ communications with South Carolina residents via electronic transmission).
39Restatement (Third) of the Law Governing Lawyers §3 (Prop. Final Dr. No. 2, 1998).
40See, e.g.,Davis, supra note 25; William L. Reynolds & William M. Richman, "Multi-Jurisdiction Practice and the Conflict of Laws."
41Roger J. Goebel, "The Liberalization of Interstate Legal Practice in the European Union: Lessons for the United States?," forthcoming in International Lawyer (Spring 2000).
42For example, a lawyer who expected to work in a state for more than a specified period (e.g., 30 days or six months) might be permitted to register with the state’s licensing agency, pay a fee, be subject to a fitness and character review, and, if deemed qualified, be admitted to the state’s bar for a specified period.
43For example, Professor Needham has identified the possibility of creating an exemption for advice on federal law. Needham, supra note 14, at 10-11.
44For example, out-of-state lawyers might continue to be excluded from participating in state court proceedings absent pro hac vice admission by the court before which they would be appearing. In that way, individual courts could continue to exercise this authority on a case-by-case basis. Alternatively, out-of-state lawyers might be excluded only from state-court criminal proceedings absent pro hac vice admission. One symposium participant noted that state court criminal defense lawyers are among the few practitioners who are not likely to encounter bi-state or multi-state legal problems at least occasionally. Further, criminal defense representation is a specialized area of legal practice where the public has a heightened interest in ensuring that lawyers are qualified. See generally Bruce A. Green, Lethal Fiction: The Meaning of "Counsel" in the Sixth Amendment, 78 Iowa L. Rev. 433 (1993).
45It was noted that some states may presently be reluctant to adopt a reciprocal admissions process out of concern that the admissions standards in sister states are not sufficiently rigorous, particularly in those states that admit graduates of non-ABA-accredited law schools.
46See, e.g.,Needham, supra note 14, at 11-12
47See, e.g., Davis, supra note 25, at 33.
48Choice-of-law issues are addressed in the paper that William L. Reynolds and William M. Richman prepared for the symposium. Reynolds & Richman, supra note 40. The ABA’s Commission on the Evaluation of the Rules of Professional Conduct is currently considering amendments to the ABA Model Rules, including Rule 8.5, the choice-of-law provision. Several participants at the symposium identified the need to improve this provision in various respects.
49See, e.g.,Davis, supra note 25, at 28-31.
Restatement of the Law Governing Lawyers, Title B, Authorized and Unauthorized Practice, Section 3, Jurisdictional Scope of the Practice of Law by a Lawyer (American Law Institute, unpublished December 1999 revision).Reynolds, William L. and Richman, William M., Multi-Jurisdiction Practice and the Conflict of Laws (Symposium on the Multijurisdictional Practice of Law, March, 2000, unpublished manuscript)( See, www.abanet.org/cpr/mjp-home.html).Roach, Arvid E., II, The Virtues of Clarity: The ABA’s New Choice of Law Rule for Legal Ethics, 36 S. Texas L. Rev. 907 (1995).Sutton, John F., Jr., Unauthorized Practice Of Law By Lawyers: A Post-Seminar Reflection on Ethics and the Multijurisdictional Practice Of Law, 36 S. Texas L. Rev. 1027 (1995).Wolfram, Charles W., Sneaking Around in the Legal Profession: Interjurisdictional Unauthorized Practice by Transactional Lawyers, 36 S. Texas L. Rev. 715 (1995).Zacharias, Fred C., A Nouveau Realist’s View of Interjurisdictional Practice Rules, 36 S. Texas L. Rev. 1037 (1995).Working Draft, Proposed Rule 5.5, Draft No. 3 (1/27/00), ABA Model Rules of Professional Conduct (ABA Commission on the Evaluation of the Model Rules of Professional Conduct)( See, http://www.abanet.org/cpr/ethics2k.html).Working Draft, Proposed Rule 8.5, Draft No. 2 (11/17/99), ABA Model Rules of Professional Conduct (ABA Commission on the Evaluation of the Model Rules of Professional Conduct)( See, http://www.abanet.org/cpr/e2k/home.html).
Friday, March 10, 2000 – Saturday, March 11, 2000
Fordham University School of Law
New York, New York
Allen, Richard B.Richard B. Allen is the managing editor of Defense Counsel Journal, a publication of the International Association of Defense Counsel, headquartered in Chicago, Illinois.
Baker, Charles P.Charles P. Baker is a partner in Fitzpatrick, Cella, Harper & Scinto, New York City, Washington DC and Orange County, California.
Barker, William T.William T. Barker is a partner in the Chicago office of the national law firm of Sonnenschein Nath & Rosenthal.
Clark, Ellen H.Ellen H. Clark is co-chair of the ABA Transnational Legal Practice Committee and is a senior associate at Clifford Chance Rogers & Wells LLP.
Corneille, Margaret FullerMargaret Fuller Corneille is the Director of the Minnesota State Boards of Law Examiners, Continuing Legal Education, and Legal Certification. She is the co-chair of the Bar Admission Committee of the ABA Section of Legal Education and Admission to the Bar.
Creamer, Robert A.Robert A. Creamer is Vice President and Associate Loss Prevention Counsel, Attorneys’ Liability Assurance Society, Inc., a Risk Retention Group ("ALAS"), Chicago, Illinois.
Crosthwait, M. Joe, Jr.M. Joe Crosthwait, Jr. is a general practitioner at the law firm of Crosthwait & Reneau in Midwest City, Oklahoma. He is a member of the ABA Standing Committee on Solo & Small Firm Practitioners,
Daly, Mary C.Mary C. Daly is the James H. Quinn Professor of Legal Ethics at Fordham University School of Law in New York City. Professor Daly is the Reporter for the ABA Commission on Multidisciplinary Practice.
Davis, Anthony E.Anthony E. Davis is a partner at the Denver, Colorado firm of Moye, Giles, O’Keefe, Vermeire & Gorrell, LLP.
Devlin, Mary M.Mary M. Devlin is Regulation Counsel at the ABA Center for Professional Responsibility in Chicago, Illinois.
Elliot, Ralph G.Ralph Gregory Elliot is a partner in the law firm of Tyler Cooper & Alcorn LLP in Hartford, Connecticut and is Adjunct Professor of Law at the University of Connecticut School of Law. He served a member of the ABA Standing Committee on Ethics and Professional Responsibility and is a member of the ABA Standing Committee on Professional Discipline.
Flaherty, Michael J.Michael J. Flaherty is a partner in Flaherty & Jacobson, P.C., a law firm in Chicago, Illinois. He is President-Elect of the Association of Professional Responsibility Lawyers and serves as its liaison to the ABA Commission on Lawyer Assistance Programs. He is also a member of the ABA Legal Malpractice Data Center and the Publications Board of the ABA Center for Professional Responsibility.
Freivogel, WilliamWilliam Freivogel is Senior Vice President and Loss Prevention Counsel, Attorneys’ Liability Assurance Society, Inc., a Risk Retention Group ("ALAS"), Chicago, Illinois.
Galvao, Antonio E.Antonio Galvao is Executive Assistant to the Honorable Jonathan Lippman, Chief Administrative Judge of the State of New York.
Gillers, StephenStephen Gillers is the Vice Dean and Professor of Law at New York University School of Law in New York City.
Goebel, Roger J.Roger J. Goebel is a Professor at Fordham University School of law in New York City and the Director of the Fordham Center on European Union Law.
Gray, Jeanne P.Jeanne P. Gray is the Director of the ABA Center for Professional Responsibility in Chicago, Illinois.
Green, Bruce A.Bruce A. Green is the Louis Stein Professor at Fordham University School of Law, where he directs the Louis Stein Center for Law and Ethics. He chairs the ABA Litigation Section's Committee on Law Schools.
Grey, Robert J., Jr.Robert J. Grey, Jr. is the Chair of the ABA House of Delegates and a member of the Board of Governors. He is a partner in the Richmond, Virginia law firm of LeClair Ryan.
Hackett, SusanSusan Hackett is Senior Vice President and General Counsel for the American Corporate Counsel Association (ACCA).
Haller, LindaLinda Haller is a Lecturer in Law, TC Beirne School of Law, University of Queensland, Brisbane, Australia.
Hapke, Daniel S., Jr.Daniel S. Hapke, Jr. is Senior Vice President and General Counsel of Cordant Technologies Inc. in Salt Lake City, Utah.
Hilliker, Donald B.Donald B. Hilliker is a partner in the Chicago office of the Trial Department of the international law firm McDermott, Will & Emery. He is Chair of the ABA Standing Committee on Ethics and Professional Responsibility and a member of the Council of the American Bar Association Section of Litigation.
Holtaway, John A.John A. Holtaway is the Client Protection Counsel at the ABA Center for Professional Responsibility in Chicago, Illinois.
Jarvis, Peter R.Peter R. Jarvis is a partner at Stoel Rives LLP, Portland, Oregon. He is the Chair of the ABA Center for Professional Responsibility Conference Planning Committee.
Jay, Beth J.Beth J. Jay serves as principal attorney to Chief Justice Ronald M. George of the California Supreme Court.
Jeydel, Richard K.Richard K. Jeydel is Senior Vice President, Secretary and General Counsel of Kanematsu USA Inc. in New York City.
Kelly, Henry A.Henry A. Kelly is a partner in the Santa Fe, New Mexico law firm of Kelly Rammelkamp, et al. He is a member of the ABA Standing Committee on Professionalism.
Kennedy, T. RichardT. Richard Kennedy is the General Counsel of American Skandia, Inc. He is the Chair of the ABA Standing Committee on Professional Discipline.
Klein, Linda A.Linda A. Klein is a partner in the Atlanta law firm of Gambrell & Stolz. At the American Bar Association, she currently serves as a member of the House of Delegates, the Executive Council of the National Conference of Bar Presidents and the Council of the Tort and Insurance Practice Section.
Lundy, Joseph R.Joe Lundy is currently Vice President and Associate Loss Prevention Counsel, Attorneys’ Liability Assurance Society, Inc., a Risk Retention Group ("ALAS"), Chicago, Illinois.
Mazadoorian, Harry N.Harry N. Mazadoorian is the Distinguished Professor of Dispute Resolution from Practice at Quinnipiac College School of Law in Hamden, Connecticut. He serves as a member of the ABA Section of Dispute Resolution Council and was the Section’s first chair of its mediation committee. He also serves as chair of the Section’s Corporate ADR Committee and is vice-chair of the Torts and Insurance Practice Section’s ADR Committee.
Minkoff, Ronald C.Ronald C. Minkoff is a member of Beldock, Levine & Hoffman in New York City.
Moeser, EricaErica Moeser is President of the National Conference of Bar Examiners in Chicago, Illinois.
Moore, Nancy J.Nancy J. Moore is a Professor of Law at Boston University School of Law. She is the Chief Reporter for the ABA Commission on Evaluation of the Rules of Professional Conduct ("Ethics 2000") and is Chair of the Multistate Professional Responsibility Examination Test Drafting Committee.
Moser, M. PeterM. Peter Moser is of counsel, Piper Marbury Rudnick & Wolfe LLP, Baltimore, Maryland. He is a member of the American Bar Association House of Delegates (currently as a Business Law Section Delegate), serves on the ABA Standing Committee on Ethics and Professional Responsibility, and formerly served as ABA Treasurer (1993-96) and as a member of the ABA Board of Governors (1984-87, 1992-96).
Mulroy, Richard E.Richard E. Mulroy is the retired Senior Vice President and General Counsel of The MONY Group Inc. He is a member of the American Bar Association Commission on Opportunities for Minorities in the Profession and the ABA Commission on Evaluation of the Rules of Professional Conduct ("Ethics 2000").
Munneke, Gary A.Gary A. Munneke is a Professor of Law at Pace University School of Law, in White Plains, New York. He is the Immediate Past Chair of the American Bar Association Section of Law Practice Management. He is also a member of the ABA Standing Committee on Publishing Oversight.
Needham, Carol A.Carol A. Needham is a Professor of Law at the School of Law at Saint Louis University.
Parker, Fred P., IIIFred Parker is the Executive Director of the North Carolina Board of Law Examiners. He is Co-Chair of the Bar Admissions Committee, ABA Section of Legal Education and Admission to the Bar.
Pera, Lucian T.Lucian T. Pera is a member of the Memphis, Tennessee law firm of Armstrong Allen Prewitt Gentry Johnston & Holmes, PLLC. He serves on the ABA Commission on the Evaluation of the Rules of Professional Conduct ("Ethics 2000").
Pope, Harold D.Harold D. Pope is a partner in the Detroit firm of Jaffe, Raitt, Heuer & Weiss, P.C. He is President of the National Bar Association ("NBA").
Positan, Wayne J.Wayne J. Positan is a member of the Council of the ABA Section of Litigation and Managing Director of the firm of Lum, Danzis, Drasco, Positan & Kleinberg, LLC, with its principal office in Roseland, New Jersey.
Saltzman, Robert J.Robert J. Saltzman is assistant counsel to the New York State Grievance Committee for the Second and Eleventh Judicial Districts in Brooklyn, New York.
Schneyer, TedTed Schneyer is the Milton O. Riepe Professor of Law at the University of Arizona College of Law.
Shely, Lynda C.Lynda C. Shely is the Director-Ethics for the State Bar of Arizona. She is a member of the ABA Standing Committee on Client Protection.
Simms, Marsha E.Marsha E. Simms is a partner in Weil, Gotshal & Manges LLP Corporate Department in New York City. She is the Chair of the Secured Transactions Subcommittee, UCC Committee of the Business Law Section, and a member of the African Commercial Law Subcommittee of the International Law and Practice Section of the American Bar Association.
Stretch, CharlotteCharlotte "Becky" Stretch is Associate Director and Special Counsel in the American Bar Association Center for Professional Responsibility in Chicago, Illinois.
Tang, David K.Y.David K.Y. Tang is a partner of Preston Gates & Ellis in Seattle, Washington. He is Vice-Chair of the ABA Real Property, Probate and Trust Section, a director of the American Bar Foundation and a member of the ABA Special Committee on the Future of the Legal Profession
Towery, James E.James E. Towery is the Chair of the ABA Standing Committee on Client Protection. He is a partner in the San Jose, California law firm of Hoge, Fenton, Jones and Appel.
Hon. Gerald W. VandeWalleThe Honorable Gerald W. VandeWalle is Chief Justice of the North Dakota Supreme Court. Chief Justice VandeWalle is the current Vice-Chair of the ABA Section of Legal Education and Admissions to the Bar, President-Elect of the Conference of Chief Justices, and Chair-Elect of the National Center for State Courts Board of Directors.
Hon. E. Norman VeaseyThe Honorable E. Norman Veasey is Chief Justice of the Delaware Supreme Court. Chief Justice Veasey is currently serving as President of the Conference of Chief Justices, Chair of the Board of the National Center for State Courts and Chair of the ABA Commission on the Evaluation of the Rules of Professional Conduct ("Ethics 2000").
Weiss, Carol A.Carol A. Weiss is Research Counsel for the ABA Center for Professional Responsibility in Chicago, Illinois.
Weston, William I.William I. Weston is the Associate Dean for Professional Skills Education and Professor of Law at the Florida Coastal School of Law in Jacksonville, Florida. Dean Weston served as a member of the ABA Standing Committee on Client Protection and the ABA Standing Committee on Professionalism. Dean Weston also served as Chair of the ABA Center for Professional Responsibility Publications Board and is a current member of the ABA/BNA Lawyers’ Manual Editorial Board.