In our First Information Report to the members of the Bar, (72 OBAJ 479, 2/10/1001) we reviewed the status of the current rules and statutes affecting a lawyer's practice outside of the jurisdiction where admitted and rules relating to temporary admission. The rules in most jurisdictions, including Oklahoma, do not recognize the occasional work for a client outside of a lawyer's jurisdiction, other than the widely recognized pro hac vice for Court appearances. We also reviewed the reality of today's world in which a client's affairs and the lawyer's delivery of service regularly require interstate and international mobility and communication and the fact that many lawyers have become skilled and specialized in specific and unique areas which transcend state jurisdictions.
The conflict between today's reality and the rules from the past have been illuminated by an increasing number of cases holding that such occasional or temporary services outside the jurisdiction are the unauthorized practice of law.
In addition, the delivery of legal services and practice of law are impacted by treaties such as a General Agreement on Trade and Services (GATS) and International Free Trade under NAFTA. Likewise, business service, consulting and accounting firms are moving forward to provide legal services nationally and internationally without regard to state jurisdiction admission lines.
In recognition of the need to address these issues, the American Bar Association Commission on Multijurisdictional Practice has requested that all states move forward to identify solutions acceptable to and consistent with the interest of clients and the lawyers of their state. Consequently, your Board of Governors intends to formulate a position in these matters.
Several underlying principles have emerged from which your Board of Governors takes guidance.
Traditionally states and courts have addressed the actions of lawyers outside of their jurisdiction of admission in the context of unauthorized practice of law. This classification appears to be a matter of convenience rather than reason. Persons who have been admitted to practice in any state by reason of their education, character and test admission should be distinguished from persons or entities who attempt to practice law without being so qualified anywhere. Consequently, we believe that limited or temporary practice by qualified lawyers in a jurisdiction other than the admission jurisdiction is a separate issue from the unauthorized practice of law and the analysis, rules and statutes should address these issues separately.
Any rule proposed requires a strong consensus of a large number of states. This is obvious by definition. If a single state adopts reasonable rules for limited or temporary activity, it has no impact unless a number of other states, if not all states, agree generally on a similar rule. Consequently, proposals should realistically target common or substantially uniform principles.
Multijurisdictional practice is currently addressed in the Rules of Professional Conduct under Rule 5.5 and to a limited extent in the Rules Governing Admission To Practice Law. Rule 5.5, consistent with tradition does not recognize varied forms of multijurisdictional practice which are incident to today's practice of law. However, the proposed Rules emanating from the Ethics 2000 Commission make an attempt to recognize the need. Thus, this rule forms the most obvious beginning point to identify a national consensus.
Lastly, the practice of law within any state involves critical issues beyond the Rules of Professional Conduct. Most important among these in Oklahoma, and in other states, are the Rules Governing And Controlling The Admission To Practice Law administered by the Board of Bar Examiners. These Rules control temporary admission and reciprocity admission for practice in Oklahoma. On the other hand, certain activities, if recognized by Rules, may not involve admission, temporary admission or reciprocity. A prime example of this situation exists today when a lawyer is admitted temporarily, pro hac vice, to practice before a Court in association with a lawyer admitted in Oklahoma. A consensus accord by a majority of the states need not take into account these individual state protocols, however, any ultimate changes in Oklahoma must.
PROPOSAL FOR CONSIDERATION
Your Board of Governors believes that application of the underlying principles requires the strongest consideration of a proposition similar to Rule 5.5 of the Rules of Professional Conduct as proposed by the Ethics 2000 Commission. However, we also believe that there are certain key issues that are not addressed or are addressed incorrectly in that Rule as presently proposed.
Attached to this report is Oklahoma's Proposed Accord on Multijurisdictional Practice which we believe satisfies each of the underlying principles which we have identified. The key points of the proposal are as follows:
- The Rule applies to lawyers within Oklahoma and to lawyers from other jurisdictions;
- It permits, without separate admission, certain activities by lawyers who are admitted in another jurisdiction, as follows:
- When authorized by an order before a tribunal or an administrative agency;
- When preparing for potential proceedings in which the lawyer reasonably expects to be admitted before a tribunal or administration related to such matter;
- The lawyer is an employee of a client, representing that client or employees of that client, and the particular matter for the employer does not involve delivering legal services to third parties;
- The lawyer is an employee of a governmental agency in the performance of employment duties;
- The lawyer is acting with respect to a matter arising out of or reasonably related to the lawyer's representation of a client in the jurisdiction where admitted; or
- The lawyer is associated with another lawyer in the state and the local lawyer provides substantive legal services in connection with the representation.
The Accord proposes that a lawyer is subject to the jurisdiction of the local jurisdiction where the services are delivered as well as the home jurisdiction of the lawyer. In the event of a conflict, the traditional or Conflicts of Law rule would be applied based upon the predominant effect of the conduct.
USE OF THE PROPOSAL
The final proposal adopted by the Board of Governors will be submitted to the ABA Multijurisdictional Practice Commission for consideration along with submissions from other states and other interested parties. Oklahoma will also have participants involved seeking to achieve an acceptable consensus among the states.
Until such a consensus or direction is identified, the Board of Governors does not intend to take any action with respect to the current Rules nor to submit a request for such action. We continue to believe that today's reality requires action, but that any action to be effective must recognize the fundamental principles which we have identified.