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
The Symposium on the Multijurisdictional Practice of Law was held on March 10-11, 2000 at the Fordham University School of Law. The ABA Center for Professional Responsibility wishes to acknowledge the following co-sponsors for their generous financial contributions, without which the Symposium could not have been a success: Stein Center for Law and Ethics at Fordham University School of Law, ABA Section of Business Law, ABA Section of Litigation, Attorneys’ Liability Assurance Society and the American Corporate Counsel Association. The Center also expresses its gratitude to Dean John D. Feerick of the Fordham University School of Law for providing the excellent facilities at Fordham that allowed us to present the Symposium and to Professor Bruce A. Green of Fordham for authoring this excellent report. The Center thanks the participants in the Symposium for the depth of knowledge, understanding and experience they brought to the discussions and their contributions in identifying the problems and solutions that merit further analysis.
The opinions and legal interpretations of the author of this report are not necessarily those of either the American Bar Association or the Center for Professional Responsibility unless adopted pursuant to the By-laws of the Association. The opinions expressed do not reflect in any way a position of the Center for Professional Responsibility or the American Bar Association.
© 2000 American Bar Association. All rights reserved.
The American Bar Association Center for Professional Responsibility, along with other organizations, sponsored a Symposium on the Multijurisdictional Practice of Law (MJP) at Fordham University School of Law in March 2000. Sixty practicing lawyers, judges, academics and regulatory representatives addressed the current status of law practice across state lines, specific problems encountered by clients and their lawyers under the current regulatory processes, and possible resolutions of these problems. This Report is the product of the Symposium.
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:
- 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.
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.
Assisting Clients with Multi-State and Interstate Legal Problems:
The Need to Bring the Professional Regulation of Lawyers into the 21 st Century
Bruce A. Green *
Lawyers in the United States are not licensed to practice law on a national basis, but are ordinarily licensed by the highest court of an individual state to practice law within that particular jurisdiction. The state-based licensing process originated more than two centuries ago when the principal work of this country’s lawyers involved representing clients in litigation. One could not represent parties at trial without the court’s permission. A state court might permit an individual to practice generally before the courts of the state, but the state court’s authority did not extend to permitting the lawyer to appear in courts of other jurisdictions.
Over time, the nature of law practice evolved and expanded. Increasingly, lawyers counseled and assisted clients outside the courthouse. For example, lawyers drafted legal documents such as wills, contracts and conveyances, and gave advice about personal and business transactions that had legal implications. Lawyers tended to be generalists, capable of providing whatever legal services a client needed. Some, but not all, of this work was exclusively reserved to lawyers. As the nature of legal practice changed, lawyers increasingly rendered assistance, such as in negotiating business agreements, that could lawfully be provided by nonlawyers as well.
Understandings have differed about the extent to which a law license gives lawyers exclusive authority to render services outside the courtroom. Even in a single state at a given time, there has almost invariably been some uncertainty about precisely what services comprising the "practice of law" are within the exclusive province of lawyers. Even so, by the early twentieth century it came to be understood that, in general terms, a state license to practice law permitted a lawyer to offer a range of services, including but not limited to courtroom advocacy, and that those who were not licensed or who were licensed only in a different jurisdiction could not render certain of these services within the particular state.
At the same time, the "professionalism" movement led states, acting through their courts, to raise the standards for admission to practice law. Eventually, the ordinary route to bar admission included graduating from an accredited law school, passing the admitting state’s bar examination, and satisfying the state’s bar examiners that the applicant possessed the requisite character to practice law. State courts established standards to govern the professional conduct of lawyers once they became members of the bar and provided for their enforcement through disciplinary proceedings that could culminate in the suspension or disbarment of a lawyer who had acted improperly. That, in broad outline, remains the process for licensing and regulating lawyers today.
In general, one may not represent clients before a state tribunal or otherwise practice law within a particular state unless one is licensed by the state or otherwise authorized to do so. This restriction applies both to nonlawyers and to lawyers who are admitted to practice in other states. In either case, since the Depression-era, states have given this restriction effect through "unauthorized practice of law" (UPL) provisions. Although UPL provisions are most often applied to nonlawyers, they also apply to lawyers. They subject lawyers to sanction (in some states, criminal sanction) for practicing law within a state where they are not licensed. Besides being enforced directly, these provisions may be invoked in disciplinary proceedings based on disciplinary rules that forbid lawyers from engaging in, or assisting others in, the unauthorized practice of law, 1 and may also be invoked by clients against their former lawyers in civil actions or by opposing parties in the context of disqualification motions.
If given full force, the UPL laws, in conjunction with the current system of state licensing, would have the practical effect of limiting lawyers to practicing only within the confines of, at most, a few states. States generally require out-of-state lawyers to pass the state's bar examination to be licensed. Not only do the bar examinations differ from state to state, but states have registration fees and, to some extent, non-uniform CLE requirements, all of which would make 50 state bar registrations costly and time-consuming. A mere showing by lawyers that they are members in good standing of another state's bar is usually insufficient, although some states allow lawyers to be admitted on motion or upon passing a shorter examination if they have been in active practice elsewhere for a specific period.
At its inception, the exclusion of out-of-state lawyers could be strongly justified by the need to protect clients. On average, lawyers who had demonstrated familiarity with the state’s law (including, especially, the state courts’ procedural rules) and who were subject to the state’s regulatory process, were best qualified to represent clients within the state and more likely than out-of-state lawyers to serve clients in accordance with the state’s procedural and disciplinary requirements.
For most of this nation’s history, individual state licensing of lawyers was not a matter of particular concern, because most clients’ legal matters were confined to a single state, and a lawyer’s familiarity with that state’s law was a qualification of particular importance. However, the wisdom of the traditional licensing and regulatory mechanisms (including, especially, the UPL laws) has been called into question in light of the changing nature of clients’ legal needs and, with them, the changing nature of law practice.
Changes in the practice of law have been discussed in several recent reports. 2 Two sets of changes identified have particular significance to the regulation of interstate and multi-state law practice. First, in the recent past "[n]ew areas of law and regulation . . . have created whole new fields for legal services," 3 "[m]any transactions have become significantly more complex," 4 and "as the general body of law [has grown] in complexity and the law relating to commerce and industry [has] vastly expanded, an increasing premium [has been] put on specialization to maintain competence and keep abreast of subject matter." 5 One consequence of this set of changes is that, often, the most significant qualification to render assistance in a particular legal matter is not knowledge of a given state’s law, but knowledge of federal or international law or familiarity with a particular type of business or personal transaction or legal proceeding.
Second, because modern transportation and communications technology have enabled clients easily to travel and transact business throughout the country, to say nothing of internationally, clients and their transactions are far less likely to be confined to a single state. Indeed, much legal work is not simply national, but transnational, "reflecting the globalization of business and finance during the past 25 years." 6 Consequently, clients may need lawyers to assist them in transactions in multiple jurisdictions (state and national) or to advise them about multiple jurisdictions’ laws.
Although client needs and legal practices have evolved, lawyer regulation has not kept pace. In most states, it appears, the UPL provisions have not been significantly revised since their adoption. These provisions differ from state to state, are enforced sporadically, and are rarely interpreted by courts. As the work of lawyers has become more varied and more national, it has become increasingly uncertain when a lawyer’s work (other than as a trial lawyer in state court) implicates a particular state’s UPL law. For example, is a lawyer who gives advice in a particular state engaged in the "practice of law?" If the lawyer meets with a client in a particular state or places a telephone call to a client who is located in a particular state, is the lawyer necessarily practicing law "in" that state? In general, it is unclear how UPL laws apply in light of changes in clients’ legal needs and evolutions in law practice. Lawyers have expressed concern that, if UPL provisions are applied restrictively and unrealistically (as the literal language of these provisions may appear to dictate), the laws will impede lawyers’ ability to meet clients’ multi-state and interstate legal needs efficiently and effectively.
Such concerns were fueled by a 1998 California Supreme Court decision, Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, 7 which held that lawyers not licensed in California violated California’s misdemeanor UPL provision when they assisted a client in connection with a California arbitration. Although the state law was subsequently amended to allow out-of-state lawyers to obtain permission to participate in California arbitrations, lawyers’ concerns have persisted. In the past two years, the application of UPL provisions to multi-state law practice has been an increasingly frequent subject of professional discussion, including in programs separately sponsored by the ABA Center for Professional Responsibility, the American Corporate Counsel Association (ACCA), and the Attorneys’ Liability Assurance Society (ALAS). 8
In response to lawyers’ growing concerns, the ABA Center for Professional Responsibility convened a symposium on "Multijurisdictional Practice of Law" to examine the regulation of interstate and multi-state law practice. 9 The symposium was held at Fordham University School of Law on March 10-11, 2000. Joining the ABA Center and the law school’s Stein Center for Law and Ethics as co-sponsors of the symposium were four other entities: the ABA Section of Business Law, the ABA Section of Litigation, ACCA, and ALAS.
The Symposium at Fordham was designed to facilitate exchanges among approximately 60 invited participants 10 and to collect individual participants’ perspectives on how the existing process of lawyer regulation affects lawyers’ work on behalf of clients outside the states in which the lawyers are licensed. Participants were provided various writings to serve as a point of departure. 11 They then engaged in broad-ranging discussions of such questions as whether the existing mechanisms and standards for regulating multi-state legal practice are adequate, whether there are possibilities for improvement, and, if so, what considerations should govern efforts at reform. Most of the discussions took place in small groups. Each of three groups examined these questions generally and also focused specifically on the regulatory implications for lawyers in one of three broad areas of professional practice: (1) litigation and alternative dispute resolution, (2) transactional representation by private practitioners, or (3) in-house corporate representation. Other discussions took place in plenary sessions adeptly moderated by Burnele V. Powell, who currently serves as Dean of the University of Missouri-Kansas City School of Law and Chair of the Coordinating Council of the ABA Center for Professional Responsibility.
In conjunction with the symposium, its organizers requested that this report be prepared. This report is not meant in any respect to serve as an official document of the symposium, nor could it, since the symposium was not designed to seek a consensus or systematically to survey opinion on any particular question. This report is also not meant to recommend any particular measures or remedies to deal with multijurisdictional practice issues. This report seeks simply to inform future discussions by summarizing the principal concerns that gave rise to the symposium, the principal issues and considerations identified by participants and other commentators, and the various possible remedies they have identified.
A. The UPL Provisions and Their Uncertain Scope
In 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." 14
Because 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. 18
Apparently, 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 Guidance
Ordinarily, 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. 25
In 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. 27
The 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. 30
The 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.
Lawyers have general understandings about how UPL provisions apply to their work in states where they are not licensed. These understandings are shaped less by the provisions themselves (which, as noted, give limited guidance) or by decisional law (which, as noted, is sparse), than by conventional wisdom or by what the U.S. Supreme Court has called "the lore of the profession." On one hand, lawyers understand that they may not open a permanent office in a state where they are not licensed and also that they may not appear in the court of a state where they are not licensed without judicial authorization.
On the other hand, lawyers believe that they may give advice in their own states concerning the law of other jurisdictions, that they may represent out-of-state clients in connection with transactions and litigation that take place where the lawyer is licensed, and that they may travel to other jurisdictions in connection with legal work on behalf of clients who reside in and have matters in the state where the lawyer is licensed.
Lawyers’ general understandings are, to some extent, reinforced by the sporadic enforcement of state UPL laws. Lawyers frequently assist clients in connection with multi-state or interstate matters but are rarely challenged for doing so. This might fairly suggest that there is a profession-wide understanding that the UPL laws, however broadly they may be written and however they may be interpreted in theory, will be interpreted by courts and enforcement agencies to accommodate reasonable and conventional professional practices. Further, one might assume that, because of the sporadic nature of UPL enforcement proceedings, lawyers may comfortably rely on their professional understandings and that, therefore, there is no need to reform existing laws, however inconsistent or non-specific they may be. These assumptions would be mistaken, however.
Participants at the symposium were emphatic that the existing system of regulation is a matter of serious concern for many lawyers. Even in contexts where the reach of individual state UPL laws is relatively clear, as in the case of their application to pending state-court proceedings, participants expressed concern about their lack of uniformity, unpredictability and, in some cases, excessive restrictiveness. For example, as Peter R. Jarvis discussed in the paper he prepared for the symposium, 31 "[a]lthough the availability of pro hac vice representation makes multi-jurisdictional issues easier for litigators in some ways, litigators and their clients still encounter difficulties with state-level practice limitations." These difficulties include that (1) the discretionary nature of pro hac vice admission in some jurisdictions "can lead to unpredictable and potentially inappropriate results," (2) the requirement in most jurisdictions that local counsel be involved in the representation may increase costs unnecessarily in some cases, such as where the law in issue is not unique to the state, (3) the pro hac vice process may not accommodate lawyers who have valuable advice or assistance to provide behind the scenes, (4) it is unclear how UPL restrictions apply to arbitration, mediation and other alternative dispute resolution processes, and (5) it is also unclear how these restrictions apply to litigators who engage in conduct outside the state where the litigation is taking place (e.g., by taking or defending out-of-state depositions).
Of even greater concern, however, was that, outside the context of litigation, the reach of the UPL laws is vastly uncertain as well as, potentially, far too restrictive. Lawyers may recognize that UPL enforcement proceedings are infrequent, and that when UPL laws are invoked courts have the ability to interpret the UPL provisions realistically to accommodate the interests of clients with interstate or multi-state legal problems. 32 Nevertheless, some lawyers will take steps to avoid or reduce the risk of having to defend against UPL charges as well as the risk of an unfavorable decision. Moreover, recognizing that lawyers have a particular professional obligation to abide by the law whether or not it is likely to be enforced, some lawyers will avoid conduct that appears to violate these laws as written or that potentially does so.
Lawyers’ cautious conduct will have costs for clients. For example, out of concern for the reach of UPL provisions, lawyers may decline to provide services that they are able to render skillfully and ethically. In doing so, they may deprive the client of a preferred lawyer including, at times, a lawyer who can serve the client more efficiently and economically than other available lawyers by drawing on knowledge gained in the course of prior work for the particular client or by drawing on expertise in the particular subject area. 33 For example, the same considerations that may lead a corporation to prefer the services of an in-house lawyer, irrespective of where that lawyer is licensed, might lead a corporation to prefer the services of a lawyer or law firm with which it has a sustained relationship. Cautious lawyers may deny both institutional and individual clients the benefit of an ongoing client/lawyer relationship. Alternatively, to reduce the risk of a UPL violation, lawyers may insist that the client engage local counsel or co-counsel, thus adding unnecessarily to the expense of the representation in contexts where the out-of-state lawyer possesses all the necessary knowledge and expertise. 34
Participants believed that these costs were real, and not merely hypothetical, for both transactional lawyers and litigators. For example, ACCA noted that since its inception it has been centrally concerned with the impact of UPL provisions on the work of in-house lawyers. Some symposium participants were aware of cases where UPL issues were raised tactically in disqualification motions, and suggested that, wholly apart from the risk of an enforcement proceeding, litigators should be concerned about this possibility.
Evidence was offered that, irrespective of the risk of enforcement, lawyers and law firms take the UPL restrictions seriously. For example, Joseph Lundy’s paper identified a series of recurring questions posed by lawyers and law firms seeking advice from his organization, ALAS. These included (1) whether lawyers may give advice concerning the laws of states where they are not licensed, (2) whether they may negotiate or close transactions in other states, (3) whether they may solicit business from out-of-state clients, (4) whether they may provide legal services to out-of-state clients, (5) whether they may lend assistance in transactions involving property outside the state where they are licensed, (6) whether law offices may be supervised or staffed in part by lawyers who are not admitted in the state, (7) whether a lawyer may provide services (by telephone, fax and/or e-mail) from a residence in a state where the lawyer is not admitted if the services are for a client in the state where the lawyer is admitted, (8) whether lawyers may prepare estate planning documents for out-of-state clients, and (9) whether lawyers may administer estates in other states. 35 Lundy acknowledged that states have a legitimate interest in regulating out-of-state lawyers, but concluded based on ALAS’ experience that the enforcement of existing UPL laws would involve a "cost, burden, inconvenience and disruption to clients who may be denied their counsel of choice." 36 Even if they were not enforced, however, the laws would concern conscientious lawyers because of the disjunction between the laws as written and the exigencies of contemporary law practice.
Finally, participants noted that even if lawyers felt free to ignore UPL laws in areas where there was a professional consensus that the laws were outmoded and there was a tacit understanding that they would not be enforced, it would be undesirable to retain the laws as written, rather than amending them to accord with contemporary understandings and practices that serve clients well. Keeping antiquated laws on the books breeds public disrespect for the law, and this is especially so where the laws relate to the conduct of lawyers, for whom there is a professional imperative to uphold the law.
The concerns that gave rise to the state-based regulatory approach, including the UPL provisions in particular, remain important. A state has an interest in ensuring that lawyers who practice in the state are qualified to render the legal services that they provide, that these lawyers will comply with state disciplinary and other regulatory provisions, and that lawyers who fail to serve clients competently and ethically will be subject to sanction. In general, participants at the symposium and other commentators have agreed on the legitimacy of these interests. Many have also concluded, however, that the UPL laws are not well-tailored to these interests and that these interests might be equally well served, if not better served, in other ways that avoid or reduce the problems engendered by the existing regulatory approach.
The general exclusion of out-of-state lawyers is questionable even in the once-common situation where a legal matter relates exclusively to a single state - i.e., when the client resides in that state, the particular litigation or transaction occurs within that state, and the matter is governed by that state’s law. On one hand, in this scenario, a law license in itself provides no assurance that a lawyer is qualified to render the particular service. Lawyers increasingly have become specialists. An in-state lawyer who lacks education and experience in a particular area may be unqualified to serve in that area. For that reason, ethics rules forbid lawyers from accepting a representation in areas where they are unqualified. On the other hand, familiarity with a particular state’s laws and processes may be far less significant than other types of legal knowledge and expertise (e.g., knowledge of federal or foreign law, expertise as a litigator, negotiator, advisor or drafter, or expertise in handling particular complex transactions). Therefore, out-of-state lawyers may not only be qualified to render a particular service, but, at times, better qualified than many or most in-state lawyers, as the New Jersey opinion on bond lawyers recognized.
The current regulatory approach is particularly troublesome in the increasingly common contexts where a legal representation involves multiple states. In this situation, UPL laws are unclear about their application and scope. Insofar as the laws are or may be restrictive, clients may be denied access to lawyers with whom they have a long-term relationship or lawyers who they believe have particularly relevant knowledge and skill. Or, clients may be put to an unnecessary expense of retaining multiple lawyers from different states.
Further, changes in state regulatory processes have made it less important to exclude out-of-state lawyers to promote compliance with state disciplinary rules and to ensure the availability of discipline when lawyers fail to comply. State disciplinary agencies throughout the country are now better funded and more professionally run than in the past. Disciplinary agencies of different states work cooperatively, sharing information and referring matters to each other. Lawyers may be disciplined in the states where they are licensed for misconduct occurring in another state, and lawyers who are disciplined in a given state (including one where they are specially admitted) are generally subject to "reciprocal discipline" in other states where they are licensed. In a handful of states, lawyers may be disciplined for misconduct that occurs in the state regardless of whether the lawyer is regularly or specially admitted to practice there. In addition to disciplinary sanctions, lawyers are subject to remedies - e.g., civil liability - that encourage compliance with professional standards wherever they practice. Owing to the work of the ABA, disciplinary provisions in the various states are relatively similar in substance in most respects. To the extent that they differ, understandings have developed concerning the applicable choice of law, and these understandings may be refined to ensure that the governing disciplinary rules are those of the jurisdictions with the most significant interest. For all of these reasons, it is more reasonable today to expect an out-of-state lawyer to comply with the disciplinary rules of the state where the lawyer practices and to expect that, if the lawyer fails to do so, the lawyer will be subject to appropriate discipline.
Not only are the existing regulatory measures inadequately tailored to the important interests that they are meant to serve, but improvements are available. Although participants at the symposium did not undertake to develop agreement on any particular alternatives, they did identify some that might be considered. Further, it was generally agreed that there is, at the very least, a reasonable possibility of devising better regulatory measures, and that therefore an undertaking to do so would be warranted.
Participants identified several broad goals for reforming the existing regulatory system. First, there is a need to promote greater uniformity in how states 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. As discussed below, these include (1) uniform state laws setting forth the restrictions on out-of-state lawyers more narrowly and more clearly, (2) uniform state laws permitting out-of-state lawyers to receive permission to render a broader array of legal services in the state, and (3) uniform state laws allowing out-of-state lawyers more liberally to be admitted to the state bar for general purposes.
A. Uniformly Defining the Restriction on Out-of-State Lawyers
One 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. 38
Section 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 Lawyers
Another 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. 43
Some 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 Lawyers
Alternatively, 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 Proposals
Finally, 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
Given the problems posed by the current regulatory measures and the availability of possible alternatives and improvements, many symposium participants identified the need to develop a national solution. It was recognized that, toward that end, it would be essential to draw on a broad array of expertise. Obviously, it would be necessary to seek the assistance of representatives of the state judiciaries and state bar admissions, licensing and disciplinary agencies, and representatives of national, state and local bar associations. Similarly, it would be necessary to draw on the assistance of representatives of other entities with experience and expertise concerning the state licensing and regulatory processes, particularly as they bear on the interstate and multi-state work of lawyers. At the same time, however, many would encourage the ABA to take a leadership role, both because of its expertise concerning the problems and possible solutions and because of its ability to serve as the national representative of the legal profession and as an unbiased broker among different groups and jurisdictions that are interested in the issue.
Further, some participants and commentators suggested that responding to this problem is a matter of some urgency for the bench and bar. They noted a risk that, if representatives of the judiciary and the organized bar do not soon address the outmoded UPL laws and other regulatory impediments to interstate and multi-state law practice, state legislatures or Congress might do so without appropriate input from the legal profession. Further, it was suggested that, if the problem is not adequately addressed, clients may be forced to seek multi-state services from others, such as foreign lawyers or nonlawyer professionals, in situations where they would be better served by United States lawyers. 49 Accordingly, there was strong sentiment among symposium participants for the American Bar Association to establish a broadly-representative commission to address the regulatory problems presented by multi-state and interstate law practice and to charge that body with a responsibility, within a short time, to develop proposed solutions and policy recommendations.
* Stein Professor of Law, Fordham University School of Law; Director, Louis Stein Center for Law and Ethics.
1 See, e.g., ABA Model Rules of Professional Conduct, Rule 5.5.
2 See, 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).
3 New York State Bar Report, supra note 3, at 8.
4 Id. 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.").
5 New York State Bar Report, supra note 3, at 15; see also id. at 41.
6 Id. at 86.
7 949 P.2d 1 (Cal. 1998).
8 ALAS 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).
9 The symposium was organized by a committee with the assistance of the staff of the ABA Center for Professional Responsibility and, especially, John A. Holtaway.
10 Participants 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.
11 Most 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.
12 ALAS, "Statutes and Rules Limiting Multijurisdictional Law Practice from 51 United States Jurisdictions" (2000).
13 One 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.
14 Carol A. Needham, "The Application of Unauthorized Practice of Law Regulations to Attorneys Working in Corporate Law Departments" at p. 14.
15 See, 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).
16 Carol A. Needham, "The Application of Unauthorized Practice of Law Regulations to Attorneys Working in Corporate Law Departments."
17 Carol 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).
18 For 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.
19 See, 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?
20 Some 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).
21 For 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).
22 Further, 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.
23 Robert 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."
24 Charles 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.
25 Anthony E. Davis, "Multijurisdictional Practice by Transactional Lawyers - Why the Sky Really Is Falling."
26 211 N.E.2d 329 (N.Y. 1965).
27 For 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.
28 In the Matter of Opinion 33 of the Committee on the Unauthorized Practice of Law, 733 A.2d 478 (N.J. 1999).
29 Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, 949 P.2d 1 (Cal. 1998).
30 Bruce 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)).
31 Peter R. Jarvis, "Where You Stand Depends on Where You Sit: One Litigator’s View of Multijurisdictional Practice Issues and Related Policy Questions."
32 See, e.g., Fought & Co. v. Steel Engineering & Erection, Inc., 951 P.2d 487 (Haw. 1998).
33 Participants 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).
34 Cf. 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).
35 Lundy, supra note 23, at 5-12
36 Id. at 13-14.
37 Some 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).
38 See, e.g., id. at 13-14 (discussing South Carolina rule regulating out-of-state lawyers’ communications with South Carolina residents via electronic transmission).
39 Restatement (Third) of the Law Governing Lawyers §3 (Prop. Final Dr. No. 2, 1998).
40 See, e.g., Davis, supra note 25; William L. Reynolds & William M. Richman, "Multi-Jurisdiction Practice and the Conflict of Laws."
41 Roger J. Goebel, "The Liberalization of Interstate Legal Practice in the European Union: Lessons for the United States?," forthcoming in International Lawyer (Spring 2000).
42 For 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.
43 For example, Professor Needham has identified the possibility of creating an exemption for advice on federal law. Needham, supra note 14, at 10-11.
44 For 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).
45 It 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.
46 See, e.g., Needham, supra note 14, at 11-12
47 See, e.g., Davis, supra note 25, at 33.
48 Choice-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.
49 See, e.g., Davis, supra note 25, at 28-31.
Multijurisdictional Practice of Law
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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).
Symposium on the Multijurisdictional Practice of Law
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 Fuller Margaret 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, William William 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, Stephen Stephen 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, Susan Susan Hackett is Senior Vice President and General Counsel for the American Corporate Counsel Association (ACCA).
Haller, Linda Linda 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. Richard T. 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, Erica Erica 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. Peter M. 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., III Fred 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, Ted Ted 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, Charlotte Charlotte "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. VandeWalle The 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 Veasey The 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.