In response to the Commission’s invitation to supplement earlier written testimony with materials included in the oral testimony given March 30, 2001, the Akron Bar Association submits the following additional material fleshing out its earlier position and responding to issues raised in the March 30 hearing.
To place perspective on what follows: The Akron Bar sees its source of strength as the close ties we have to each other and to our community. The respectful professionalism we expect and accord to each other and the justice system derive from those commitments.
The Akron Bar reiterates its basic position that limited MJP is both a practical necessity and a positive good for serving clients and the public. However, unrestricted MJP cannot claim either of those labels, and thus should not be permitted at this time. The Akron Bar counsels caution in instituting and monitoring a regime of MJP, to ensure that the decisions made do not jeopardize the interests of the public and of clients in pursuit of serving lawyers’ interest in free and permissive practice beyond the boundaries of their jurisdictions of admission. We must preserve professionalism and fidelity to local policy and interests while ensuring effective client representation in our interconnected world.
Several proponents of widespread and permissive MJP deprecatingly referred to the position of caution as one of naked economic protectionism and narrow parochialism held by primarily midwestern practitioners. A position that may incidentally serve economic self-interest should lead one to require sufficient bases beyond economic self-interest in its support. But with due respect, the position in favor of wide MJP has been advanced by practitioners whose economic self-interest is served by that position as well. In short, dismissing a position simply for coinciding with self-interest is shortsighted, as is failing to perceive the self-interest on all sides of the issue. The Commission needs to examine the strength of the underlying positions and arguments to assess the best course of action.
The position in favor of caution cannot be explained solely as parochial protectionism. Instead, it flows from a basic commitment to upholding the core values of the profession and to ensuring the well-being of the local communities in which we all live and practice.
Maintaining and strengthening the core values of our profession cannot depend upon the disciplinary process. Although any regime of MJP must require that practitioners be held to the ethical standards of any state in which they render legal services, subjecting lawyers to discipline is not the way of ensuring protection for clients and the public. Discipline is too little too late. Rather, professionalism depends upon two other factors that are more important than discipline.
First, ethics depends upon the integrity and wisdom of each practitioner. The Akron Bar is concerned that practitioners may not have the sufficient knowledge or wisdom to know when they have reached the bounds of their competency in the state law of jurisdictions in which they are not admitted, do not regularly practice, and have no continuing ties. The similarities among US jurisdictions may be a detriment to lawyers expecting and discerning subtle differences and nuances in their laws. In the EU, the differences are radical in language, culture, and even system. Therefore, it is unlikely that a lawyer will be deceived about his or her familiarity with or competency to practice the law of a differing state. In short, subtle differences are more likely to result in lawyers being unaware of them, and thus misjudging their ability to render competent client service. It will be the clients who suffer in these instances, often beyond the reach of discipline or malpractice.
Second, and perhaps least spoken of, ethics depends upon functioning within the bonds of a community, with mores and norms that consistently place boundaries and exert pressure upon its members to adhere to them. Being committed to that community, as well as being a member of it, is the greatest and most effective informal system of ensuring professional conduct that we have. We have relied on these communities of professionalism to protect the public for years. Although the boundaries of those communities may change, we submit that a community that functions in this way is an indispensable part of any effective system of ethical practice. MJP threatens to erase that community for a significant portion of the practicing bar, at least when they practice beyond the boundaries of their own jurisdictions. Until this commission and this profession can formulate communities to fulfill the function that local and state communities currently serve, we should be loath to expand MJP.
Currently, the pro hac vice system works well in the context of tribunal practice outside one’s jurisdiction of admission. We submit that important factors in that success are that it is public, visible, and presided over by an officer of the court. These three factors bring to bear community presence and pressure, and help ensure that the interests of both clients and the public are not forgotten. It would behoove us to duplicate these factors when we authorize other types of necessary MJP.
Another point we would like to make is the importance of presence in and commitment to a community and to local law. We are all aware of some of the negative effects that wide deregulation has had on businesses and services. These are effects that would be devastating to the public service nature of the practice of law. We read a cautionary tale of national concerns coming in to a community. Using practices that are not illegal but that can be somewhat predatory, they offer services and product at lower prices or with high customer service. They can afford to do so by spreading the profits and losses out over a wide network, rather than relying upon the profitability of the single unit. However, once the local competing businesses have been driven out, quality decreases, prices increase, service diminishes, and any semblance of responding to and serving the local community’s interests becomes at best vague. Not only are the economic resources of the community now drained out of the community itself, but the interests of that community are no longer paramount or of concern to the national business. The lack of commitment to the community results in a lack of service to that community, its economic infrastructure, and its people. The Akron Bar cautions strongly against adopting a position on MJP that will allow similar results. We also note that driving out local practitioners, or draining the lucrative clients away from those practitioners, may result in less availability of low cost legal services, services that many lawyers offer in their local communities because they are members of and committed to those communities and their well-being. We should not trade short-term economic benefits for long-term losses to both economic and other interests.
In determining how best to establish boundaries for MJP, we suggest that it is preferable to place lawyers at risk to ensure protection of clients and the public. Clear boundaries for acceptable MJP can be established along the lines suggested in our earlier testimony and in the Ethics 2000 Rule 5.5 proposals. But rather than relieving lawyers of risk by being permissive, we suggest that the best way to police boundaries and to ensure that we have experience to support the conclusion that certain types of MJP serve the public interest is to make new types of MJP somewhat risky. It should be lawyers’ responsibility to prove that their activities served their clients’ interests and those of the public if their activities are not clearly within the boundaries of protected conduct. Protect what we know should be protected, and remove risk from lawyers operating within those boundaries. But inculcate thoughtful caution and make the boundaries self-policing by putting lawyers at risk for exceeding them without a concomitant ability to demonstrate that the activity serves client and public.
Law and the practice of law serve people and their communities in irreplaceable ways. We should institutionalize and protect MJP activities that contribute to client and public well-being. But we must not let MJP remove commitment to community and to service, and hence to core values of the profession. Therefore, the Akron Bar advises this Commission to adopt a regime of MJP that takes a cautious and incremental approach, supported by empirical data and experience.