Statement for Delivery by Henry M. Rivera
at the San Diego Hearing of the
ABA Commission on Multijurisdictional Practice
February 17, 2001
Ladies and gentlemen, I appear before the Commission on behalf of the Federal Communications Bar Association, or FCBA. I am a former President of the FCBA. It has been an affiliated organization of the ABA, with representation in the House of Delegates, for over fifty years. I am the Association’s current Delegate to the House.
The FCBA is an organization of lawyers with a specialty practice, primarily rooted in federal law, serving a nationwide and indeed an international client base. The organization has more than 3,500 members, principally lawyers who represent clients with business interests in the field of communications. Most of these businesses are regulated by the Federal Communications Commission, the FCC, on which I served in the 1980's as a Commissioner.
The clients of members of the FCBA include radio and television stations, both commercial and non-commercial, and cable television stations. They also include telephone companies, facilities-based long distance carriers, local exchange carriers, international carriers, and resellers of telecommunications services.
Clients of members of the FCBA include wireless telecommunications companies, such as those that provide cellular and personal communications services, paging services, and special mobile radio services. They include manufacturers, utilities, railroads and other businesses that maintain internal wireless communications systems.
They include internet service providers and content providers. They include domestic and international satellite companies, teleport operators, satellite system operators, and earth station licensees.
FCBA member clients also include manufacturers of equipment for all the foregoing services, plus numerous entities that do business with entities in the telecommunications industry, such as radio and television program syndicators. They include municipalities that award or must consider renewal or revision of cable television franchises, or grant of franchises to private competitive telecommunications services. They include real estate owners and developers negotiating agreements to provide communications services to their tenants or residents, purchasers of long distance and local exchange capacity, and satellite capacity, and police departments and other public safety organizations that communicate by radio.
FCBA attorneys represent investors in, and lenders to, telecommunications entities. They also represent consumer groups and citizen watchdog groups that monitor and report on the performance of broadcasters and others in the telecommunications industry.
Our members are principally concentrated in the District of Columbia, where I have my office, because the District is the seat of the Federal Communications Commission. However, we also have members in 46 states and 15 foreign countries.
Our lawyer members are chosen by their clients because of their particular expertise in areas of the law in which the clients need assistance. They are routinely called upon to provide services to clients in jurisdictions other than those in which the lawyers maintain their offices and hold their bar memberships. We have a strong interest in seeing that our clients are able to receive the services of the lawyers they have chosen, to provide the benefit of expertise they need.
In rendering services to their clients in other states, our members will ordinarily associate with local counsel if local litigation is involved. Most of the work of our members for their clients, however, does not involve litigation.
This includes field investigations, advice to clients and their employees, negotiation with attorneys and other representatives of entities with which the clients have business relationships, and transactional work such as the buying and selling of telecommunications facilities and businesses, and the financing of business expansions. In those instances, our attorneys will seek the help of local counsel where, in the exercise of their professional judgment, they determine the clients’ best interests require it.
The ABA need not start from scratch in fashioning a recommendation for a realistic uniform state law as to what is authorized practice in the state by lawyers from other states. An enlightened model is already provided by the American Law Institute, in its Restatement of the Law Governing Lawyers, published just this past September after years of deliberative analysis begun in 1986 and numerous drafts that generated extraordinary interest and debate.
It says in Section 3 of Chapter 1, titled "Jurisdictional Scope of the Practice of Law by a Lawyer," that an attorney may provide services to clients in any of three instances.
First, of course, is where the services are in a jurisdiction in which the lawyer is admitted to practice. Second, Section 3 permits lawyer services in another jurisdiction where they are in compliance with the requirements for admission to practice before a tribunal in that jurisdiction.
Third, and most important to the consideration by this Commission, the section says that a lawyer may provide services "at a place within a jurisdiction in which the lawyer is not admitted to the extent the lawyer's activities in the matter arise out of or are otherwise reasonably related to the lawyer's practice [in either of the first two instances]." We endorse that sensible approach to state regulation of unauthorized practice, and urge that this Commission endorse it in its report.
Comment e to Section 3 notes that a rule along the lines of what it proposes "may arguably be required under the federal interstate commerce clause." The FCBA filed a brief amicus curiae with the United States Supreme Court in 1998 supporting the petition for certiorari in the Birbrower case. We urged in our brief that the Court consider whether the California Supreme Court’s overly stringent interpretation of that state’s unauthorized practice statute constituted an unconstitutional burden on interstate commerce. A copy of that brief has been provided to this Commission.
The U.S. Supreme Court declined to grant certiorari. That left the federal constitutional issue, which had unfortunately not been discussed in the California opinion, undecided in either state or federal court.
Regardless however of whether state unauthorized practice laws such as the one in California, as interpreted by its Supreme Court, are unconstitutional, they are bad policy. They can hurt clients by depriving them of the specialized expertise they need, where they need it, as well as in some instances adding unnecessarily to their costs. This Commission should advocate a reasonable rule, such as that contained in the ALI Restatement of the Law Governing Lawyers.
Model Rules Proposals
As this Commission is well aware, Rule 5.5 of the ABA Model Rules of Professional Conduct prohibits the practice of law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. Rule 8.5 subjects lawyers to the disciplinary authority of the jurisdiction in which the lawyer is admitted to practice - but not, except for pro haec vice court appearances, to the disciplinary authority of jurisdictions in which the lawyer is not admitted to practice. Both rules need to be changed.
In November, as you know, there was a report to the ABA from its Ethics 2000 Commission. That Commission, chaired by the Chief Justice of Delaware, has for the last three years been studying revisions to a number of the ABA Model Rules of Professional Conduct. Its recommended changes include changes in Rules 5.5 and 8.5.
The Ethics Commission’s recommendations as to Rule 5.5 would expand that rule to permit four "safe harbors" for lawyers admitted to practice in other jurisdictions. We endorse three of those safe harbors, which provide protection to any lawyer who (1) associates with a local lawyer in the state where not admitted, or (2) is acting as house counsel for an employer in a state where not admitted, or (3) is preparing for trial in a state in which he or she reasonably expects to be admitted pro haec vice.
The fourth safe harbor would exempt from UPL any lawyer from another jurisdiction who 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." Note that provision does not extend to clients of the lawyer in a jurisdiction in which the lawyer is not admitted to practice. Most work done by communications attorneys is for clients who are residents of, or headquartered in, jurisdictions other than those in which the attorneys are admitted to practice.
We urge that safe harbor be expanded to extend the exemption to representation of clients that "arises out of or is otherwise reasonably related to the lawyer's representation of ... any client in any jurisdiction primarily as to matters of federal law."
The Ethics 2000 Commission proposes changing Rule 8.5 to make lawyers from other jurisdictions subject also to the disciplinary authority of the jurisdiction in which they act, even if not members of the bar of that jurisdiction. It resolves choice of law issues by saying that, where there is a conflict in the rules governing a lawyer's conduct, the rules of the jurisdiction where the conduct will have its "predominant effect" will control. It also provides a "safe harbor" for any lawyer who acts in accord with the rules of a jurisdiction where the lawyer "reasonably believes" the predominant effect of the conduct will occur. We support these changes.
We know that one of the principal problems the California Supreme Court had with the activities of the New York lawyers in California in the Birbrower case was the absence of disciplinary authority in California over those activities. That argument should be removed from the arsenal of those who would apply UPL rules to lawyers providing services to their clients across state lines. The Ethics 2000 Commission's proposed revision of Rule 8.5 is a reasonable way of doing that.
Retention of State Licensing
The FCBA does not seek, as some have, a national licensing scheme for lawyers. It believes that the ABA should first try to exert its influence to achieve a reasonable degree of uniformity in state regulation that recognizes the multijurisdictional nature of today’s law practice and the needs of clients for legal advice and assistance that is provided across state lines. In other areas, notably commercial law, recommended uniform state laws have been successful. Only if efforts to achieve removal of restrictions impairing clients’ abilities to obtain the legal services they need from the lawyers they deem most qualified to meet those needs, wherever located, should there be renewed focus on the remedy of a national licensing scheme.
Because of the increasingly interstate and specialized nature of law practice, clients should be permitted to seek the legal advice and assistance they require from the licensed attorneys whom they deem best able to satisfy their needs, regardless of the jurisdiction of admission of the attorneys.
Attorneys should be permitted by state statutes, and ethics rules, to satisfy their clients’ needs in jurisdictions other than the ones in which the attorneys maintain their offices and are admitted to the bar so long as they comply with the rules of local tribunals as to matters before those tribunals. Other than in appearances before tribunals, the attorneys should be permitted to exercise their professional judgment to determine whether and to what extent the interests of their clients and the circumstances of the particular representation require advice from and participation by local counsel.
The ABA should recommend that the states adopt uniform rules as to multijurisdictional practice by attorneys along the lines of Chapter 1 Section 3 of the Restatement of the Law Governing Lawyers.
The ABA should also amend Rules 5.5 and 8.5 of the Model Rules of Professional Conduct along the lines of the proposals in the Report of the Ethics 2000 Commission - except that it should provide in Rule 5.5 that a lawyer does not engage in unauthorized practice where the lawyer, though not admitted in the jurisdiction, acts with respect to a matter that arises out of or is reasonably related to the lawyer’s representation of a client primarily as to matters of federal law.
Our Association applauds the work of the ABA and this Commission in reexamining this important area of the law. I would be happy to respond to questions, and to submit answers in writing to any questions that I may be unable to answer today.