TO: American Bar Association Commission on Multijurisdictional Practice
Wayne J. Positan, Chair
FROM: State Bar of Nevada
DATE: June 21, 2001
RE: MJP Issues and Concerns
The State Bar of Nevada appreciates the opportunity to provide the Commission with preliminary written comments on various issues particular to the practice of law in our state and concerns raised by the members of our bar, as well as the general concerns of all practicing lawyers. We anticipate providing further written materials at a later date and participating in the next hearing of the ABA Commission on August 3.
Partially in response to the ABA’s formation of its Commission on MJP, the State Bar formed its own Commission on Multijurisdictional Practice ("State Bar Commission"), chaired by our President-Elect, John Mowbray. The State Bar Commission began meeting in May, 2001, to examine the proposed changes to Model Rule 5.5 and other approaches currently being debated to address issues arising from the multijurisdictional practice of law. Its several subcommittees have met and identified concerns and areas of further inquiry.
It is the preliminary consensus of the State Bar Commission that , given the scope and magnitude of the issues related to MJP, additional input is needed from bar associations, individual attorneys, and particularly the Supreme Court of Nevada (and other state supreme courts), who will ultimately be charged with administering the impact of increased multijurisdictional practice. Further inquiry and deliberation are required in order to assess the full impact of any proposed changes.
The principle concerns of the State Bar Commission to date fall under the broad categories of competence, character and fitness, and public protection.
Nevada maintains a rigorous bar examination to ensure that attorneys practicing in this state are fully competent to do so. Nevada tests on more essay topics and places a heavier emphasis on essays than in many other states. Nevada also requires a higher score on the Multiprofessional Responsibility Exam (MPRE) than some other states.
Character and Fitness
Nevada considers the character and fitness to practice of its applicants as extremely important. Nevada holds character and fitness hearings each year on a high percentage of applicants. For example, for the 2000 Bar Examination, the Character and Fitness Committee (a subcommittee of the Board of Bar Examiners) reviewed 32% of the applicant pool and held actual hearings on roughly half of those reviewed. Holding a law license elsewhere does not ensure admission to the State Bar of Nevada, and it would be logistically impossible to examine in-depth every attorney who might eventually practice in Nevada should some of the changes proffered by the ABA Commission be adopted.
In this area the State Bar Commission has serious concerns regarding client security funds, reciprocal discipline, and the continued administration of justice. As Nevada’s client security fund is supported from the dues of its members, increasing the number of non-Nevada attorneys practicing within the state puts a greater potential strain on these funds without the concomitant increase in contributions.
As to discipline, allowing attorneys to practice with a "national license" essentially makes professional misconduct anywhere professional misconduct everywhere. Unless all states afford full faith and credit to each other’s discipline findings and establish a national reporting system, every state (large or small) will need to investigate every complaint. This is a practical impossibility in terms of both resources and logistics. Without local witnesses and documents, every case would require formalized evidentiary and procedural rules if another state is required to adjudicate anew each disciplinary complaint.
Nevada’s attorney population is relatively small (approximately 6,000 members), and as a small state, Nevada relies heavily on its attorneys to maintain the vitality of the judiciary, local bar associations, and community services. Permitting an ongoing and regular practice of law in this state by attorneys not invested locally robs the community of the industry and experience of its lawyers and disconnects legal advocates from the community members they are charged with representing.
With those concerns in mind the State Bar Commission opposes the "green card" approach of establishing a national licensure to address the multijurisdictional practice issue. However, some of the proposed changes to Model Rule 5.5 (creating safe harbor exceptions) offer some alternatives that may be viable while still providing safeguards for public safety and competent legal services.
One possible rule change is to expand the pro hac vice mechanism to include pre-litigation arbitrations and mediations. Also, administrative agencies might opt into the same rule. Increasing the fees for such applications or requiring malpractice insurance in connection with such appearances helps alleviate the increased strain on the host state’s client security fund or disciplinary resources should professional misconduct occur.
The State Bar Commission also considered further limiting the safe harbor exceptions to appearances that are merely incidental to an attorney’s representation of a client in another state. As long as the activities are occasional and not in the regular course of business (e.g., depositions), there is less of a need to protect Nevada’s citizens from professional misconduct and, thus, less need for the testing of character and fitness in regulation of the bar.
Finally, some of the elements already found in interstate compacts may be considered. These could include requiring a minimum number of years in practice before admission to another state or requiring an intensive continuing legal education course on the new state’s laws and procedures prior to limited admission.
The State Bar of Nevada appreciates this opportunity to provide written input to the ABA Commission and will look forward to further dialogue on these issues in the months to come.