Five Minute Summary of FCBA Statement at the San Diego Hearing of the

ABA Commission on Multijurisdictional Practice

February 17, 2001

        Ladies and gentlemen, I appear for the Federal Communications Bar Association, or FCBA, in place of Henry Rivera who was our designated speaker. Mr. Rivera, in addition to being our ABA Delegate, is also President of Catholic Charities in Washington, D.C. Last week, he was asked by the Archbishop of the Washington Diocese to accompany him to Rome for his investiture as a Cardinal. There are some engagements, it seems, that trump even the ABA.

        I know you have Mr. Rivera’s written statement. I will attempt only to summarize, within the five minutes allotted for our presentation. I will, of course, be available to answer questions based either on the statement or on this summary.

        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 types of services our members render and the types of clients they represent are described in Mr. Rivera’s written statement.

        Communications attorneys’ clients more often than not have their offices in, and are admitted to the bar of, jurisdictions other than those in which their clients are located. For instance, though I have represented communications clients for over 40 years, I have never had one in the District of Columbia where I have my office, because it is the seat of the Federal Communications Commission. Clients frequently require the services of their communications attorneys in the jurisdictions where the clients are located and in other jurisdictions where they have business dealings.

        Our members have a strong interest in seeing that their clients are able to receive the services of the lawyers they have chosen, to provide the expertise they need, in the places where they need to have the services provided.

        We have suggested that the ABA follow the lead of the American Law Institute in its Restatement of the Law Governing Lawyers, published just last September after years of deliberative analysis begun in 1986, and numerous drafts that generated extraordinary interest and debate. That Restatement deals with multijurisdictional practice by saying 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, it permits lawyer services in another jurisdiction where in compliance with the requirements for admission to practice before a tribunal in that jurisdiction. That is the so-called pro haec vice provision.

        Third, it 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 urge this Com-mission to follow that sensible approach in its report.

        We have also endorsed the changes in Rules 5.5 and 8.5 of the Model Rules of Professional Conduct proposed by the ABA Ethics 2000 Commission, with one suggested revision in Rule 5.5. Our suggestion is to protect lawyers such as our members whose services in jurisdictions where they are not admitted arise out of their primary representation in matters of federal law.

        Even that change would not be necessary if the words "on behalf of a client" were simply deleted from the proposed safe harbor in Rule 5.5 for extra-jurisdictional services. That safe harbor permits such services [and I quote] "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." The commentary indicates the intention was that the services be related to the lawyer’s practice in a jurisdiction where admitted, not that they necessarily be on behalf of a client in that jurisdiction. Deleting the language "on behalf of a client," would make it clear that the clause "in a jurisdiction in which the lawyer is admitted" modifies the word "practice" rather than the word now immediately before the clause, which is the word "client."

        As to the proposed new Rule 8.5, we have no problem having lawyers made subject to the disciplinary authority of the jurisdiction in which they render services even though not a member of the bar of that jurisdiction. We also think the Ethics 2000 Commission has dealt fairly with possible conflicts between the rules in different states by protecting lawyers who, in such instances, follow the rules of the jurisdiction where they "reasonably believe" the "predominant effect" of their conduct will occur.

        We thank the members of this Commission for the time and effort they are putting into this important subject. I would be happy to respond to questions if any members of the Commission have questions.