Statement Of Barry D. Epstein, President, New Jersey State Bar Association - Center for Professional Responsibility

COMMISSION ON MULTIJURISDICTIONAL PRACTICE

HEARING REGISTRATION

FRIDAY, FEBRUARY 16, 2001
SATURDAY, FEBRUARY 17, 2001

9:00 A.M. – 12:00 P.M.
Room 1A, Upper Level
San Diego Convention Center
San Diego, CA

 Name : Barry D. Epstein, President, New Jersey State Bar Association

Address: New Jersey Law Center, One Constitution Square
              New Brunswick, NJ 08901

Phone: (732) 937- 7500           Fax: (732) 249-2815

I wish to testify on -

Friday, February 16, 2001 __ X_____
Saturday, February 17, 2001 _______

Testifying on behalf of the New Jersey State Bar Association

ABA COMMISSION ON MULTIJURISDICTIONAL PRACTICE
FEBRUARY 16, 2001

STATEMENT OF BARRY D. EPSTEIN, PRESIDENT,
NEW JERSEY STATE BAR ASSOCIATION

         THE NEW JERSEY STATE BAR ASSOCIATION APPRECIATES THE OPPORTUNITY TO PARTICIPATE IN THE DEBATE AND DISCUSSION ON MULTI- JURISDICTIONAL PRACTICE, AND WE THANK THE COMMISSION FOR ADDRESSING THIS DIFFICULT AND VERY IMPORTANT ISSUE, WHICH AFFECTS LAWYERS EVERYWHERE.

        PRACTICE ACROSS STATE BORDERS IS A TOPIC OF MUCH INTEREST AMONG NEW JERSEY LAWYERS, DUE IN LARGE PART TO THE HIGHLY COMPETITIVE NATURE OF OUR LEGAL MARKETPLACE, AND OUR UNIQUE GEOGRAPHICAL POSITION.

        BEN FRANKLIN ONCE COMPARED NEW JERSEY TO A "BEER KEG TAPPED AT EITHER END" --- THAT IS, WE ARE SUBJECT TO THE STRONG AND SOMETIMES AGGRESSIVE INFLUENCES OF NEW YORK IN THE NORTH AND PHILADELPHIA IN THE SOUTH. IN MANY RESPECTS FRANKLIN’S DESCRIPTION FITS TODAY BECAUSE MANY NEW YORK AND PENNSYLVANIA LAWYERS AND LAW FIRMS LOOK ON NEW JERSEY AS FERTILE GROUND FOR CLIENTS AND BUSINESS OPPORTUNITIES.

        JUST AS NEW JERSEY IS OFTEN SAID TO BE A MICROCOSM OF AMERICAN SOCIETY, IT ALSO ILLUSTRATES PERFECTLY THE VARIETIES OF MULTIJURISDICTIONAL PRACTICE --

  • NEW YORK AND PHILADELPHIA LAW FIRMS HAVE BEEN SETTING UP SHOP IN NEW JERSEY ON A REGULAR BASIS, AND FIRMS FROM CHICAGO, WASHINGTON, DC AND PITTSBURGH HAVE FOLLOWED.
  • AT THE OTHER END OF THE SPECTRUM, NEW YORK AND PHILADELPHIA SOLO AND SMALL FIRM PRACTITIONERS REGULARLY SEEK TO REPRESENT CLIENTS IN NEW JERSEY, PARTICULARLY IN COMMERCIAL TRANSACTIONS, AND IN CIVIL AND FAMILY COURT AS WELL.
  • IN OUR FEDERAL DISTRICT COURT, I HAVE HEARD IT SAID THAT IN A MULTI-PARTY CIVIL CASE, YOU MAY BE LUCKY TO HAVE ONE NEW JERSEY LAWYER ARGUING BEFORE THE COURT. HIS OR HER ADVERSARIES WILL BE FROM LARGE NATIONAL FIRMS APPEARING PRO HAC VICE
  • MANY FORTUNE 500 COMPANIES CALL NEW JERSEY HOME. AS A RESULT WE HAVE A LARGE AND GROWING POPULATION OF IN-HOUSE CORPORATE COUNSEL
  • AS NEW JERSEY HAS GROWN INTO A COMMERCIAL CENTER THE AMOUNT OF LAW FIRM TRANSACTIONAL WORK HAS EXPLODED, MUCH OF IT MULTI-STATE OR INTERNATIONAL IN CHARACTER
  • YET, THE MAJORITY OF NEW JERSEY LAWYERS ARE STILL IN SMALL FIRMS, OR PRACTICE ALONE. BUT, BECAUSE THE STATE IS SO SMALL MANY OF THESE PRACTITIONERS ARE LIKELY TO HAVE CLIENTS INVOLVED IN MATTERS IN NEIGHBORING STATES

        THEREFORE, WE APPEAR TO BE ON THE CUTTING EDGE OF THE MJP DEBATE. WHAT DOES THE "AVERAGE LAWYER" IN NEW JERSEY THINK ABOUT MJP? ON THE ONE HAND, THEY RECOGNIZE THE UPL PITFALLS, BUT ON THE OTHER, I BELIEVE MANY ARE FEARFUL THAT THE MJP ISSUES WILL ULTIMATELY BE RESOLVED IN A WAY THAT ADVANCES THE INTERESTS OF THE LARGE FIRMS, AND NOT THEIR OWN.

        HOWEVER, WE ARE NOT SITTING ON OUR HANDS AS THE MJP DEBATE UNFOLDS AROUND US. THE NEW JERSEY STATE BAR ASSOCIATION HAS AN ACTIVE MJP COMMITTEE, CHAIRED BY WAYNE POSITAN. IT MAY HAVE BEEN ONE OF THE FIRST SUCH COMMITTEES APPOINTED BY ANY STATE BAR ASSOCIATION. IT IS COMPRISED OF LAWYERS FROM DIFFERENT PRACTICE AREAS AND REGIONS OF THE STATE, AND INCLUDES A RECENTLY RETIRED MEMBER OF OUR SUPREME COURT. THE COMMITTEE HAS BEEN AT WORK FOR ABOUT FIVE MONTHS AND I UNDERSTAND FROM WAYNE THAT A PRELIMINARY REPORT, PERHAPS WITH SOME RECOMMENDATIONS, MAY BE PRESENTED TO OUR BOARD OF TRUSTEES IN APRIL.

        WAYNE’S COMMITTEE RECENTLY SURVEYED BAR ASSOCIATIONS ACROSS THE STATE. THE NEARLY UNANIMOUS RESPONSE WAS THAT SOMETHING NEEDS TO BE DONE TO MORE CLEARLY DEFINE WHAT LAWYERS CAN, AND CANNOT, DO WHEN VENTURING INTO A STATE WHERE THEY ARE NOT ADMITTED. ALTHOUGH NO CONSENSUS EMERGED FROM THE SURVEY, OR AS YET FROM WAYNE’S COMMITTEE, THERE APPEARS TO BE SUPPORT FOR A MODEL RULE THAT CARVES OUT EXEMPTIONS FROM UPL RESTRICTIONS. NEW JERSEY LAWYERS WOULD LIKE THEIR STATE BAR ASSOCIATION, AND THIS COMMISSION, TO HELP BRING SOME ORDER TO THE CHAOS AND CONFUSION GENERATED BY CURRENT STATE UPL RULES.

        I WILL GIVE YOU AN EXAMPLE OF WHY NEW JERSEY LAWYERS, AND ALL LAWYERS, SHOULD BE CONCERNED. IT IS AN EXAMPLE THAT I USE WHEN SPEAKING TO BAR GROUPS ABOUT MJP AND IT NEVER FAILS TO OPEN THE EYES OF EVERYONE IN THE AUDIENCE. IN 1999 A NEW JERSEY LAWYER WENT DOWN TO SOUTH CAROLINA TO ASSIST SOME CLIENTS WHO WANTED REPRESENTATION IN CONNECTION WITH PERSONAL INJURY ACTIONS. HE TALKED TO THE INSURANCE CARRIERS ABOUT AN AMICABLE SETTLEMENT AND GATHERED MEDICAL INFORMATION RELATED TO THEIR CLAIMS WHILE MAKING IT CLEAR TO THE CLIENTS THAT IF THE MATTERS WENT BEYOND SETTLEMENT DISCUSSIONS HE WOULD EITHER BE ADMITTED PRO HAC VICE OR OBTAIN SOUTH CAROLINA COUNSEL. IN FACT, HE HAD INITIAL DISCUSSIONS WITH A LOCAL LAWYER.

        APPARENTLY, SOMEONE DIDN’T LIKE THE FACT THAT AN OUT-OF-STATE LAWYER WAS IN TOWN, AND THEY CALLED THE DISTRICT ATTORNEY. WELL, HE ENDED UP GETTING INDICTED UNDER SOUTH CAROLINA’S UPL STATUTE.

        THIS STORY BRINGS THE ISSUE HOME. IT’S JUST ONE CASE, BUT IT POINTS OUT TWO VERY IMPORTANT FACTS -- HOW UPL LAWS ARE TRAPS FOR THE UNWARY, AND HOW SERIOUS SOME STATES HAVE BECOME ABOUT UPL PROSECUTIONS. IT ALSO POINTS OUT THE DEGREE OF PROTECTIONISM THAT CAN BE FOUND IN MANY STATES.

        RECENTLY, ALONG WITH BAR PRESIDENTS FROM FOUR OTHER STATES, I SIGNED A LETTER TO THIS COMMISSION SEEKING AN EXTENSION OF TIME, BEYOND YOUR STATED DEADLINE, FOR ORGANIZED BAR GROUPS TO RESPOND. I THINK MORE STUDY AND DEBATE IS ESSENTIAL IF THE COMMISSION WANTS TO FACILITATE PRACTICAL AND EFFECTIVE SOLUTIONS TO THE MANY ISSUES GENERATED BY MJP. THE COMMISSION SHOULD ALSO BE SENDING THE MESSAGE THAT ALL VOICES WILL BE HEARD BEFORE ANY DECISIONS ARE MADE.

        FOR INSTANCE, IF THERE IS TO BE A MODEL RULE, WHICH SHOULD IT BE? A REVISION OF RPC 5.5, A MODEL RULE OF COURT, A RULE EMBODYING SECTION 3 OF THE RESTATEMENT OF LAW GOVERNING LAWYERS? WHAT ELEMENTS SHOULD BE IN SUCH A RULE? MIGHT WE PROPOSE TEMPORARY OR QUALIFIED LICENSES TO PRACTICE? SHOULD THE SCOPE OF THE PRO HAC VICE RULE BE EXPANDED TO INCLUDE LAWYERS REPRESENTING CLIENTS IN ADR PROCEEDINGS? SHOULD REPRESENTATION IN ANOTHER STATE BE RESTRICTED TO ACTIVITY ON BEHALF OF AN EXISTING CLIENT FROM YOUR STATE OF ADMISSION? HOW CAN WE ALLOW MJP AND AT THE SAME TIME CURTAIL SOLICITATION OF NEW CLIENTS? WHAT LEGITIMATE STATE INTERESTS NEED WE TAKE INTO ACCOUNT? IN THE LONG RUN, IS THE STATUS QUO THE BEST OF A NUMBER OF TROUBLESOME CHOICES? YOU HAVE HEARD THESE QUESTIONS AND MANY MORE LIKE THEM. THEY ARE IMPORTANT, AND THE ORGANIZED BAR NEEDS TIME TO DIGEST AND RESOLVE THEM.

        A YEAR AGO IT WAS SAID THAT THE BIGGEST ISSUE FACING THE BAR WAS MULTIDISCIPLINARY PRACTICE. TODAY THE COMMISSION HAS BEFORE IT AN ISSUE OF AT LEAST EQUAL IMPORTANCE. I URGE YOU, AND THE ABA HIERARCHY, NOT TO MAKE THE SAME MISTAKE AND RUSH TO JUDGEMENT ON MJP. TOO MUCH IS AT STAKE. TAKE YOUR TIME, AND GIVE STATE AND LOCAL BAR ASSOCIATIONS AN OPPORTUNITY TO ASSIST YOU IN WORKING OUT SOLUTIONS THAT WILL BE BENEFICIAL TO US ALL.

THANK YOU.

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