|TO·||ABA Commission on Multijurisdictional Practice|
|FROM·||William T. Barker|
|DATE·||July 3, 2001|
|RE·||Interstate Practice Issues & Model Pro Hac Vice Rule|
On behalf of the International Association of Defense Counsel, I presented comments and a proposed Model Pro Hac Vice Rule to this Commission at the Mid-Year Meeting in San Diego. In light of the Inventory of Selected Issues on Multijurisdictional Practice ("Inventory") circulated by the Commission and what has transpired at the Commission's hearings, I submit the following supplemental comments. Time has not permitted me to submit these comments to the Executive Committee of the IADC, so they are purely a statement of my own personal views.
I am a partner in the Chicago office of Sonnenschein Nath & Rosenthal, and a member of Sonnenschein's Ethics Committee. I am a member of the American Law Institute and was an active participant in the debates over the Restatement (Third) of the Law Governing Lawyers. I was an invited participant in the ABA working symposium on Multijurisdictional Practice and am Chair of the IADC Ad Hoc Committee on Interstate Practice. My article on Extrajurisdictional Practice by Lawyers will be published in the August issue of The Business Lawyer. (1) I was a member of the ABA Tort & Insurance Practice Section ("TIPS") Task Force on Multidisciplinary Practice and the IADC's Ad Hoc Committee on Multidisciplinary Practice. I am a former Chair of the Chicago Council of Lawyers Committee on Ethics and Professional Responsibility and a member of the ethics committees of the International Association of Defense Counsel, the ABA Litigation Section, and the Chicago Bar Association, as well as the TIPS Professionalism Committee. I am a member of the Advisory Council of the ABA Ethics 2000 Commission.
The ABA symposium on the multijurisdictional practice of law ("MJP Symposium") identified three broad goals for reforming the law on the jurisdictional scope of lawyers work:
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. (2)
I have been pleased at the extent to which the presentations to this Commission have supported these goals I remain concerned that full achievement of those goals will require reform of existing state admission and disciplinary mechanisms to cope with the additional challenges and burdens created by increasingly mobile lawyer activities. I continue to fear that the necessary institutional changes may require more than the remaining months of this Commission's (extended) life to design. Even were this Commission to design and submit recommendations that would fully achieve these goals, I would anticipate the need for extended review by state and local bars before any major action could be taken by the House of Delegates. (3) And full implementation by state courts or legislatures would likely take additional years. (4)
I urge the Commission to present modest proposals, but not as an alternative to far-reaching proposals. Rather, they should be offered as interim steps, that can be adopted and implemented more quickly and that will begin the necessary movement to accommodate the needs of clients and of the legal profession for greater interstate mobility in the provision of legal services. As an example of such a modest proposal, I reiterate my support for the Model Pro Hac Vice Rule which the IADC proposed in February. (5) (I am pleased to note the supporting letter from the Tort & Insurance Practice Section dated May 31, 2001. While TIPS and the IADC have a minor divergence regarding arbitration proceedings, that is a matter of detail.)
I also support (1) an organizational lawyer rule permitting ready mobility of in-house counsel, (6) (2) procedures for provisional admission during the pendency of an application for admission on foreign license, (3) reaffirmation of existing ABA support for licensing of foreign legal consultants, and (4) support of the Ethics 2000 Commission's draft revisions to Model Rules 5.5 and 8.5. (7)
Another point has recently come to my attention. Almost by definition, foreign lawyers will not have educational qualifications that would permit them to seek admission in most states, even by taking the bar examination. Foreign legal training systems differ from those in the United States and foreign law schools are rarely, if ever, accredited in the United States. In particular, foreign legal training often does not include the sort of undergraduate study required under most states' rules. So even graduating from an ABA accredited law school may not qualify a foreign lawyer to sit for the bar. Consideration should be given to a Model Rule allowing local admission authorities to permit foreign lawyers to take the bar examination if their education and experience provide adequate assurance of comparable competence to that provided by the local educational requirements.
I am generally sympathetic to the more extensive proposals offered by others to this Commission. I urge careful consideration of those proposals and of any necessary adjustments to existing regulatory mechanisms to accommodate the whatever features the Commission finds it appropriate to recommend. But I ask that the Commission not limit itself to a single grand proposal that may not be adopted or widely implemented for a long time, if ever.
Moreover, I urge the Commission to recognize the indirect benefits to the legal system of approving a variety of methods of expanding client access to lawyers licensed in other states. As the IADC observed in its submission,
The most obvious purpose of [our proposal] is to rationalize and regularize pro hac vice practice, to extend such practice modestly to nonjudical dispute resolution forums (while maintaining judicial/administrative control of such practice), and to clarify certain doubtful questions to confirm the propriety of practices now common, valuable, and unproblematic. It also sets forth a coherent framework of principles that could be a basis for authorizing practice outside the dispute resolution area, once the regulatory issues regarding such practice are resolved. The persuasive force of those principles may have an impact of judicial development of the common law, as may the marshalling of supporting authorities.
The Public Interests Affected
The Commission's Inventory identifies eight public interests that must be considered in determining what steps to take. I comment on each of those interests as it applies to the IADC/TIPS proposal. Preliminarily, I note that the proposal would authorize only transitory local practice, not the establishment of an office or other permanent presence soliciting future business within the host state. Attorneys residing in or regularly employed in an office in that state would not be eligible for pro hac vice admission except during a transition period while promptly pursuing an initial application for general admission to the bar. (8) Both actual litigation or activities in contemplation of litigation, if occurring in the host state, must be conducted in conjunction with in-state counsel, except that the lawyer may engage in a preliminary consultation about possible representation if the prospective client requests the lawyer's presence for that purpose. (9) I make no effort to address any standards that might be applied to permit establishment of an office or other permanent presence without general admission to the local bar.
With respect to activities in contemplation of pro hac vice admission, I emphasize that the IADC/TIPS proposal would not have authorized the conduct at issue in Koscove v. Bolte. (10) Koscove retained Bolte to assist her in investigating and pursuing a claim that she had been paid less in oil and gas royalties than she was due. Both were residents of Colorado, but (as Koscove knew) Bolte was admitted to practice law only in Wisconsin. He suggested that she give him a small partial interest in the royalties so he could pursue that interest pro se, without violating any restrictions on unauthorized practice. The contract ultimately gave him a share of any royalties he recovered. Bolte investigated, determined that more royalties were due, and sent a demand letter to the oil company. When no payment was forthcoming, Koscove retained a Colorado attorney to bring suit. Bolte continued to work on the suit, without supervision by the Colorado attorney. The oil company sued in federal court, and Bolte was admitted pro hac vice as co-counsel with the Colorado lawyer. Bolte did substantial work and a significant recovery was obtained. Koscove paid the agreed fraction to Bolte, but then brought this action to recover. She alleged that Bolte could not lawfully charge the fee, both because he had engaged in unauthorized practice and because he had failed to follow the proper procedures for contingent fee agreements. (11)
Bolte argued that the contract was for nonlegal services and that he had not engaged in the practice of law. The court agreed that some of the services involved were nonlegal, but found them intertwined with legal services. Because Bolte had made no effort to separate the two, neither did the court. (12) He argued that his admission pro hac vice before the federal court showed that his actions were proper. But the claims were based solely on state law, Bolte had rendered substantial legal advice before any suit was filed, and there had been no expectation that the case would proceed in federal court until the oil company had filed there. (13) While the federal court could allow Bolte fees for work done before that court, his contract indivisibly included services outside that court and, so, was unenforceable. (14)
Because Bolte was a Colorado resident, the IADC/TIPS proposal would have precluded pro hac vice admission Indeed, Bolte may have expected such a denial even without such a rule, because he never even sought admission in the state court. That failure renders untenable any claim that the work was done in the expectation of admission pro hac vice. Bolte only sought such admission when the oil company dragged Koscove into federal court. Moreover, the work was for a local client, rather than for an out-of-state client contemplating litigation in Colorado. In these circumstances, it is particularly troubling that much of Bolte's work was done before Colorado counsel was retained, something our proposal would not permit. Bolte was also highly unusual because prefiling work is usually done by a lawyer working out of an office in a jurisdiction where the lawyer is admitted, so that a significant fraction of the work will be authorized practice under the laws of that jurisdiction. None of Bolte's work had any connection to Wisconsin, the only jurisdiction where he was admitted.
With that clarification, I now turn to discussion of the interests listed in the Inventory.
As the Inventory says, "[t]he host state has an interest in insuring that the lawyers who counsel its residents are competent." But a significant amount of pro hac vice practice is conducted on behalf of clients who do not reside in the host state, and (as the Commission recognizes) that state has little or no interest in protecting out-of-state clients who deliberately chose out-of-state lawyers. Even where the client is local, there is less need for the state to assess competence where the client is able to do so independently, as is usually the case where the client employs in-house counsel or is advised by other counsel in the selection of the out-of-state lawyer.
Involvement of local counsel is a double safeguard. First, local counsel can afford considerable protection against unfamiliarity with local procedure and customs and some protection against other types of error by the out-of-state lawyer. Second, the willingness of the client to pay for an extra lawyer suggests a relatively strong conviction that the out-of-state lawyer is especially valuable. (This latter point would be less true in contingent fee cases if local counsel will be paid by sharing in the out-of-state lawyer's fee, but it will be true in most cases.)
Moreover, admission to the local bar itself provides only a limited assurance of competence, and clients probably receive greater protection from the liability of lawyers for malpractice. Such liability is equally applicable to out-of-state lawyers. If local lawyers are required to maintain malpractice insurance or to inform their clients of the lack of such insurance, those requirements should apply equally to lawyers representing local clients pro hac vice.
These factors collectively account for the extremely limited attention to issues of competence in existing pro hac vice practice. The IADC/TIPS proposal would not reduce any protections that clients now receive.
The Commission raises two other issues relating to competence: whether the lawyer is a graduate of an accredited law school and application of CLE requirements. Neither is currently a consideration in pro hac vice practice and I see no reason to make them so.
A competent lawyer who is a graduate of an unaccredited law school (or of no law school where law office study is still permitted) cannot realistically "remedy" the deficiency in educational qualifications. Clients who desire that lawyer's services on a pro hac vice basis ought not to be totally denied any possibility of obtaining those services, especially where the lawyer is prevented from obtaining local admission for this reason. If the host state views this as an important issue, the application for pro hac vice admission could inquire whether the lawyer graduated from an accredited law school. The court could then conduct whatever review of the lawyer's qualifications it deems appropriate for the protection of any local client requiring such protection. (15)
CLE requirements typically call for compliance over a period of one or more years. A lawyer in a jurisdiction not requiring CLE (or requiring less CLE than the host state) may not find it worthwhile to take CLE that serves no current business purpose of the lawyer simply to maintain eligibility for pro hac vice admission in another state where some client may or may not later desire that lawyer to handle a case. A lawyer called upon to undertake a new case is unlikely to be able to take a lot of CLE before starting work. Clients should not be precluded from using lawyers on a pro hac vice basis merely because those lawyers' home states do not require CLE or require less CLE than the host state and the lawyer has not taken (or kept records of) enough CLE to satisfy the host state's requirements. (16)
2. Disciplinary & Character interests
As the Inventory notes, "[t]he host state has an interest in the discipline of a lawyer for misconduct witin its borders and for misconduct from outside its borders where the misconduct is aimed at its residents or justice system." As noted in the IADC submission, lawyer regulation today is closely tied to local licensure, and this raises regulatory issues when lawyers not licensed locally are permitted to practice. If out-of-state lawyers practice in a state, the regulators typically will have no notice of this, and no ability to address any issues of competence or character. With no local license that can be suspended or revoked, regulators have expressed concern that the ability to exercise any disciplinary authority is, at best, doubtful. Even if discipline were theoretically possible, they are also concerned that it will have little practical effect unless the out-of-state lawyers' home states give reciprocal effect to that discipline, which now may not occur. Finally, lawyer regulators are generally supported by fees paid for local licenses (or to apply for such licenses), and unlicensed lawyers pay no fees. So there are no resources to support regulation of such lawyers, even if there were clearly effective mechanisms.
The Inventory further observes that "[t]o be admitted lawyers generally have to satisfy a character inquiry." I address that interest together with the disciplinary interest.
The IADC/TIPS proposal confirms that the host state will have disciplinary jurisdiction. (17) It also beefs up the character inquiry by requiring disclosure to the admitting court (and to the local lawyer regulatory authority) of the lawyer's entire disciplinary history, including contempt findings and personal sanctions. It assures notice to the local lawyer regulatory authority to permit it to investigate and/or comment upon the lawyer'' fitness. The proposal thus adds to the protections provided in existing pro hac vice practice and assures a certain minimum effect to host state discipline. Future courts asked to admit the lawyer pro hac vice will consider that discipline even if the lawyer is never disciplined by the lawyer's home state. (18)
Were the rules of professional conduct uniform from state to state, any conduct warranting discipline in the host state would necessarily warrant discipline in the home state. But the rules are not uniform. I suggest that Model Rule 8.4 be clarified (by analogy to Model Rule 5.5 to require lawyers practicing law in another state to comply with the rules applicable in that state). I assume that collateral estoppel might bind the lawyer to disciplinary findings of fact in the host state, unless the home state applies a higher burden of proof. Certainly existing reciprocal discipline mechanisms would be available. If necessary, they could be supplemented by having the lawyer agree, as a condition of pro hac vice admission, that such findings would be binding (or prima facie evidence) in disciplinary proceedings elsewhere.
All of this could facilitate reciprocal discipline by the home state. I would urge states to apply such discipline and, if informal enforcement policies are not sufficiently reliable to assure other states, to commit to doing so. But I do not support making availability of pro hac vice admission conditional on the existence of such a commitment. Existing pro hac vice practice functions well without any such commitment, and the IADC/TIPS proposal would improve the current protections of the disciplinary and character interests.
I know that some disciplinary lawyers are concerned that, even if the home state imposes discipline, it may impose lesser discipline than the host state deemed appropriate. They would like true "full faith and credit" on issues of sanction as well as violation. (19) I suspect that other disciplinary lawyers might resist being so bound. (20) I take no position on whether such binding is appropriate for other forms of transitory practice. I suggest that there is no need for pro hac vice reform to await resolution of this issue or to depend on whether the lawyer's home state has agreed to be so bound.
3. Administration of justice
The Inventory observes that "[a] state has a legitimate interest in maintaining an active and vibrant local bar because the bar is part of the machinery of justice, lawyers may be utilized to serve on court committees, and lawyers may be an important source of expertise (usually voluntary) for various governmental and charitable functions." I am skeptical that even national licensure or "one license for life" proposals would truly threaten this interest. There are costs associated with employing out-of-state lawyers and benefits of having lawyers who know the community and its local laws and practices, and these are likely to assure a continued flow of business for local lawyers regardless of licensing requirements.
But, however that might be, the IADC/TIPS proposal should present no appreciable threat to this interest. It closely conforms to existing pro hac vice practice, so it would not likely have any very large effect on the volume of work performed by those practicing in that manner. Moreover, as testimony before the Commission has confirmed, there are special reasons to continue using local lawyers in litigation, where knowledge of local idiosyncrasies and relationships with local judges and juries are extremely important.
Moreover, the proposal specifically precludes use of pro hac vice practice as a means of "regular" practice in the host state. (21) It will actually tighten the rules in states with no such limitation and assure that judges have the information necessary to enforce the restriction. On the other hand, it will relax the excessively mechanical numerical limits imposed by some states by looking to a more qualitative analysis: how often is the lawyer representing local clients, how many of them lack a preexisting relationship with the lawyer, to what extent are the matters related so that they should be regarded as different aspects of a single broad representation, etc. (22)
So preservation of an active and vibrant local bar is not impacted by our proposal.
The Inventory raises one collateral issue that seemingly relates to the interest in an active and vibrant local bar: should it make a difference whether the out-of-state lawyer was the passive recipient of a request for service by a host state client or, instead, actively encouraged the interest, either of that specific client or of some segment of the host state public. I question whether such a distinction may constitutionally be drawn: lawyers have a First Amendment right to advertise, including by targeted direct mail and clients have rights to procure goods and services in interstate commerce free of regulations merely protecting local suppliers. Moreover, for reasons already discussed, there seems no need to draw any such distinction in the context of pro hac vice practice.
In this connection, I call the Commission's attention to a recent case treating a lawyer's active encouragement of client interest as irrelevant to the permissiblity of pro hac vice admission. The case is In re Murgatroyd. (23) The lawyers concentrated their practice in mass tort litigation. They sent targeted mail solicitations to the families of those killed in an Indiana air crash. Those mailings did not comply with Indiana advertising rules because (1) they were not labeled "advertising material," (2) they contained statistical data based on past performance, and (3) they were not filed with the Disciplinary Commission before or at the time of mailing. No actual representations were obtained, but the Disciplinary Commission sought disciplinary action. The lawyers challenged subject matter and personal jurisdiction, but these challenges were rejected. (24) The lawyers then consented to an injunction and the court approved it.
The injunction required that any future targeted communications comply with the Indiana Rules of Professional Conduct. It required that, before initiaition of a representation of an Indiana client or in an Indiana venue, the lawyers must familiarize themselves with those rules (or their then-current successors). The lawyers were required to institute reasonable measures to ensure that the conduct of their law partners, associate lawyers, nonlawyer support staff, experts and independent contractors comports with the terms of the injunction and the Indiana Rules of Professional Conduct. They agreed to accept vicarious responsibility for any violations by those under their supervision. And they were required, within a reasonable time after undertaking a representation in any Indiana court, to associate themselves with Indiana-licensed counsel and seek admission pro hac vice. With the exception of the vicarious responsibility (presumably including disciplinary responsibility) for those under their supervision, all of these terms seem simply to restate obligations that would apply in the absence of any injunction. Murgatroyd thus approved lawyer "encouragement" of the formation of attorney-client relationships directed to future pro hac vice admission without any locally licensed lawyer yet being involved.
4. Funds for client protection
I do not know how these funds would or should operate with respect to interstate claims. The principles suggested by the Standing Committee on Client Protection seem reasonable. To limit the number of such claims, it might be required that any trust funds for the benefit of local clients be held by local counsel, who would be subject to local supervision of trust account practices and covered by the local client protection fund. Just as out-of-state clients who choose out-of-state lawyers do not require the protection of local regulation of competence, they may also be required to look to other protections (such as the lawyer's home state fund) for the sorts of misconduct covered by client protection funds.
Current pro hac vice practice makes no particular provisions regarding client protection funds, and this omission does not appear to cause any problems. If a problem could be shown to exist, a client protection assessment could be imposed along with the fee provided for in our proposal. (25) On the other hand, assessments beyond the level necessary to deal with reasonably anticipated payments to clients of out-of-state lawyers could operate as a protective tariff and subsidy to the local bar, so any such fee should be carefully limited, if imposed at all.
5. Fee Arbitration
Once again, concern for availability of host state fee arbitration seems relevant only where the client is from the host state. Unless the client is allowed to waive arbitration prospectively, lawyers admitted pro hac vice should be required to submit to such arbitration on the same basis as local lawyers. There seems no reason not to permit the client to use a lawyer's home state arbitration rule, if there is such a rule. Unless they so agree, host state clients should not be deemed to submit to any arbitration mechanism in the lawyer's home state.
6. Counsel of choice
I fully agree with the Inventory that "[b]oth states and individuals have an interest, when commensurate with other interests, in protecting the interest of residents of a state in having access to counsel of choice, when that counsel is qualified to handle a client's problem although a member of the bar of another jurisdiction," The IADC/TIPS proposal is designed to further that interest.
I agree with the Inventory that "[s]tates have an interest in encouraging professionalism on the part of lawyers admitted to their bars or serving their residents." I am not sure that "avoidance of overcommercialization" describes a true interest that can be intelligibly defined or one that states have a right to promote, independently of the other interests already discussed. In particular, the First Amendment limits the promotion of any such interest, and commercialization is not necessarily inconsistent with professionalism in respects that identifiably affect the interests of clients and the legal system. But, if there is such an interest, the IADC/TIPS proposal does nothing to injure it.
I fully support (and share) the profession's longstanding "commitment to provide pro bono service." Except where such service is mandatory (by court appointment or otherwise), the IADC/TIPS proposal would have no impact on that commitment. Because mandatory pro bono service is quite uncommon and because existing pro hac vice practice makes no provision for it, I question whether special provision for such service is necessary. I also doubt that the administrative burdens of implementing such provisions would be worth their cost. But if it is deemed appropriate, I have suggestions on how it might be implemented.
Requiring a lawyer admitted pro hac vice to personally perform such service in the host state would create special problems. First, the need to travel to the host state to perform such service would make that service far more burdensome than for local lawyers. Moreover, the fact that an out-of-state client is willing to trust the lawyer's competence does not necessarily justify entrusting an indigent host state client to that lawyer. I suggest that any mandatory pro bono obligations for out-of-state lawyers should take the form of requiring those lawyers to pay for the necessary services from host state lawyers. This would equalize the burden and retain the host state's ability to assure competence in delivery of such services.
Moreover, lawyers admitted pro hac vice ought not to be burdened disproportionately to local lawyers. Typically, pro hac vice practice in the host state will be only a part of the lawyer's practice. So if the host state has a requirement based on the ABA norm of 50 hours per year of pro bono service, a lawyer whose practice is dominantly on matters outside the host state should have a proportionately reduced obligation to support pro bono services in the host state. Because the obligation would take the form of payment for services, it could be measured retrospectively by comparing the lawyer's hours on pro hac vice matters in the host state to the lawyer's total hours in the practice of law.
Reciprocity is not a public interest, as such, though it is an issue noted by the Inventory. A number of the recent submissions suggest that, even with respect to the modest and well-justified safe harbors in the Ethics 2000 Model Rule 5.5, practice in the host state ought not to be permitted if the lawyer's home state would not permit similar practice by host state lawyers.
But the premise of both the proposed Model Rule 5.5 and the IADC/TIPS proposed Model Pro Hac Vice Rule is that (in the situations where they permit out-of-state lawyers to practice) unauthorized practice prohibitions are unnecessary to protect the clients who would be represented by those lawyers or other members of the public. If that is so, I think it improper to hold the clients who would like to use those lawyers hostage in order to pressure other states to open their markets to lawyers from the host state.
In any event, no reciprocity provision is needed in the Model Pro Hac Vice Rule because current pro hac vice practice already establishes nationwide permission on roughly similar terms, though the proposed Model Rule would modestly expand that practice and clarify some currently uncertain points. So even were reciprocity appropriate generally, it would be unnecessary for this Model Rule.
Utility of the Proposed Model Rule
The New Jersey bar comments on the IADC/TIPS proposal by stating that its committee "does not believe that any change is necessary" in pro hac vice practice. In its view, "[a]lthough pro hac vice requirements may differ slightly in neighboring jurisdictions, there appears to be no overriding need to replace the current system."
In fact, the New Jersey bar endorses some of the substance of the IADC/TIPS proposal, but incorporates that substance in its version of Model Rule 5.5. I suggest that it is unwise to place all of the ABA's multijurisdictional practice eggs in the Ethics 2000 basket. The Ethics 2000 proposals may take longer to gain approval and adoption than a simpler Model Pro Hac Vice Rule.
Moreover, the IADC/TIPS proposal offers a number of improvements in the regulation of pro hac vice practice. One message that can be drawn from the submissions now before the Commission is that any broadening of the scope of permissible multijurisdictional practice (or even express recognition of practices that are now common and unproblematic) is likely to call for improvements in the regulation of such practice.
Nor would I agree that the IADC/TIPS proposal seeks "to replace the current system." Rather it seeks to refine and improve that system, in part by beginning to develop regulatory approaches that may be transferrable to other contexts. And, as already noted, the proposal also begins the task of conceptualizing a sensible approach to multijurisdictional practice issues.
1 An earlier draft is now on the Commission's website. Portions of these comments are drawn from the latest version.
2 Bruce A. Green, Assisting Clients with Multi-state and Interstate Problems: The Need to Bring the Professional Regulation of Lawyers into the 21 st Century ("A Report Summarizing the Proceedings of the Symposium on the Multijurisdictional Practice of Law, March 10-11, 2000"), 22 (ABA 2000).
3 Recent submissions by the Colorado, Nebraska, Nevada, Akron and Camden bars and the Minnesota Board of Law Examiners express serious reservations about (and sometimes actual opposition to) sweeping changes. I suspect that others share those reservations, at least to some degree.
4 The Commission heard a report at the Kansas City hearing that the Colorado Supreme Court failed to adopt a foreign legal consultant rule proposed by the Colorado bar because the admission personnel feared it would make extra work. Nor have all jurisdictions even now completed consideration of the original Model Rules. For example, a proposal to adopt a version of the Model Rules is now pending before the Tennessee Supreme Court.
5 We note that the Nebraska and Nevada bar submissions contemplate or suggest extension of pro hac vice practice to ADR proceedings, which is part of our proposal.
6 We would prefer a procedure for organizational lawyers to be easily admitted on a basis permitting them only to represent their organizational employers (and do pro bono work) rather than a UPL exception permitting them to counsel their employers. As admitted lawyers, they would contribute financially to the regulation of the local bar, would be more likely to participate in bar activities and pro bono work, and would be better able to seek admission without a bar examination when they move to other states.
7 I am pleased to see near unanimity in supporting the Ethics 2000 proposals, though the New Jersey bar submission calls for narrowing of the safe harbors proposed by Ethics 2000.
8 Subdivision (c). I would hope that in-house lawyers would be permitted at least limited admission to the local bar without examination. This would then permit them to practice for their employers without pro hac vice admission. If no such admission mechanism is available (perhaps because the state merely permits counseling of the employer without requiring admission), then there might be a need for an additional category of eligibility for pro hac vice admission.
9 Subdivisions (i) & (j).
10 Koscove v. Bolte, __ P.3d __, 2001 WL 125900, 2001 Colo. App. LEXIS 290 (Colo. Ct. App. Feb. 15, 2001).
11 The latter contention was not reached because Koscove prevailed on the first. 2001 WL 125900, at *6, 2001 Colo. App. LEXIS 290 at *14.
12 2001 WL 125900, at *3, 2001 Colo. App. LEXIS 290 at *7-8.
13 2001 WL 125900, at *4, 2001 Colo. App. LEXIS 290 at *10..
14 2001 WL 125900, at *5, 2001 Colo. App. LEXIS 290 at *11-12. In fact, there seems to be no reason why Bolte could not have asserted a right to quantum meruit fees for work in federal court as a partial defense to Koscove's suit. But he does not appear to have done so, choosing to defend the enforceability of his contract.
15 For similar reasons, I suggest that any other mechanism for transitory practice on behalf of local clients have some procedure allowing qualification by lawyers who are not graduates of accredited law schools, even if the regular standards of that state limit admission to graduates of accredited law schools.
16 For similar reasons, I am skeptical of applying CLE requirements to other types of mechanisms for occasional transitory practice. Only where the lawyer makes some systematic effort to attract clients in the host state should the lawyer be obliged to anticipate a possible need to satisfy its CLE requirements.
17 Subdivision (h). The Ethics 2000 version of Model Rule 8.5 would accomplish the same result.
18 I suggest that other mechanisms for transitory practice might limit automatic access to lawyers with no history of discipline (or none exceeding a threshold, perhaps excluding private discipline, or none within a specified time period). Lawyers with disciplinary histories precluding automatic access should be able to apply for access to the transitory practice mechanism and obtain a more individualized character review without a bar examination or the other burdens of full admission.
19 This concern is expressed by the Nevada bar submission and has been urged by disciplinary counsel at the Mid-Year Meeting and elsewhere.
20 The New Jersey bar submission expresses a preference for discretion to deviate from the other state's discipline
21 Subdivision (f).
22 Comment .
23 741 N.E.2d 719 (Ind. 2001).
24 Id. at 720-21.
25 Subdivision (g).