American Bar Association Section of Business Law

Position Statement on Multijurisdictional Practice
(As adopted by the Council on January 14, 2001)

As interstate and international commerce, transportation, and communications have expanded, clients have increasingly required a truly interstate and international range of practice by their lawyers. Applied literally, existing restrictions on the practice of law in a state by a lawyer admitted elsewhere would seriously inconvenience clients and would make the legal profession less competitive with other providers of services provided by lawyers. Retaining locally admitted counsel will often cause delay and added expense without commensurate benefit to the client, and requires the client to deal with unfamiliar counsel.

In addition, existing restrictions on the practice of law in a state by a lawyer admitted elsewhere fail to take into account the growth in numbers and sophistication of in-house counsel. Likewise, existing procedures for pro hac vice admission in connection with litigation do not deal adequately with the fast-growing area of alternate dispute resolution, and are not uniform among the states.

In the interest of the public, of clients, and of the profession, the Section of Business Law supports change in the existing of laws and rules regulating the profession in order to facilitate the modern interstate practice of law. In particular, the Section:

  1. Supports the changes that have been proposed in Model Rule 5.5 by the Ethics 2000 Commission, subject to the comments noted below;
  2. Supports the Ethics 2000 Commission's Proposed Model Rule 8.5;
  3. Proposes that Model Rule 5.5's safe harbor for lawyers admitted to practice in another jurisdiction be expanded to permit a lawyer to act in a jurisdiction in which he or she is not admitted, provided that
  • the lawyer is not permanently based in the jurisdiction in which he or she is not admitted,
  • the lawyer does not hold himself or herself out as admitted to practice in the jurisdiction in which he or she is not admitted, and
  • he or she is acting with respect to a matter that arises out of or is reasonably related to the lawyer's practice in the jurisdiction where he or she is admitted;
  1. Proposes the addition to Model Rule 5.5 of a safe harbor for a lawyer admitted in another jurisdiction when acting with respect to a matter involving issues of federal law or the law of one or more other (i.e., other than the jurisdiction in which the lawyer is acting) domestic or foreign jurisdictions, provided that
  • the lawyer is not permanently based in the jurisdiction in which he or she is not admitted, and
  • the lawyer does not hold himself or herself out as admitted to practice in the jurisdiction in which he or she is not admitted;
  1. Proposes the addition to Model Rule 5.5 of a safe harbor for services in a jurisdiction by a lawyer admitted to practice in another jurisdiction that would not constitute UPL if performed by a non-lawyer in the jurisdiction in which the lawyer is not admitted;
  2. Proposes the further refinement of Model Rule 5.5 to permit in-house counsel to render legal services (other than appearance before a tribunal) to their employer and its organizational affiliates in jurisdictions in which they are not admitted;
  3. Proposes that rules for pro hac vice admission be made uniform throughout the United States;
  4. Proposes the addition to Model Rule 5.5 of a safe harbor, in circumstances in which litigation is not pending before a tribunal, for services in a jurisdiction in which he or she is not admitted by a lawyer admitted in another jurisdiction in connection with factual investigation or other work in preparation for or anticipation of litigation, arbitration, mediation, or other dispute resolution process, regardless of where it is anticipated such litigation or other dispute resolution process may be initiated and regardless of whether it is ever in fact initiated;
  5. Proposes the addition to Model Rule 5.5 of a safe harbor for services in a jurisdiction by a lawyer admitted in another jurisdiction in connection with arbitration, mediation, or other dispute resolution process;
  6. Urges the MJP Commission to recommend appropriate state or federal action to implement the objectives of the ABA's Model Rule on Foreign Legal Consultants, as adopted by the ABA House of Delegates in 1993; and
  7. Urges the MJP Commission to recommend state or federal legislation as required fully to implement the objectives of the foregoing proposals.

This Statement is not intended to deal with all of the issues presently before the MJP Commission. Those issues require further study and debate. The Section intends to follow closely the work of the Commission and, as appropriate from time to time, make its views known on the issues being debated by the Commission and on the Commission's proposals and recommendations.

 

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