American Bar Association Health Law Section
Position Statement on Multi-jurisdictional Practice
(As adopted by the Council on June 29, 2001)
Modern interstate and international commerce has resulted in clients seeking a broad geographic scope of legal practice from their lawyers. Advances in health care technology, communications and the expansion of American health ventures around the globe have propelled our clients into transnational and international business. These clients require American attorneys who can provide a multi-state and international scope of practice. Further, regardless of geographic bar admission, many lawyers concentrating in health law effectively already practice on a national basis: the Federal law of Medicare, Medicaid and Federal health care reimbursement is interpreted, analyzed and applied by health lawyers nation-wide, usually without reference to the individual attorney's bar admissions. If existing state-by-state limitations on the practice of law were strictly applied, the modern health lawyer might have to seriously restrict his or her practice, which would result in clients' suffering increased cost and being denied counsel of their choice.
Preservation of the existing rules regarding Multi jurisdictional practice also limits clients in their choice of counsel. Retaining locally admitted counsel is at best a partial solution, as local counsel often does not have the detailed knowledge of the business of the client that makes for effective lawyering. Finally, maintaining the traditional limitations on the geographic scope of legal practice makes modern American lawyers less competitive in a global market.
In addition, traditional restrictions on Multi jurisdictional practice, as reflected in existing State laws and codes of ethics, were based on very different practice patterns. These rules are, in an increasing number of cases, ignored or inadvertently transgressed as lawyers seek to provide those services demanded by sophisticated multi-state and international clients. These attitudes are inimical to the legitimate interests of state bar organizations in regulating the unauthorized practice of law and call into question the vitality and relevance of the rules. The Section believes that the bar would be better served by rules which are more consonant with contemporary practices.
The Health Law Section Council notes that traditional limitations on the Multi jurisdictional practice of law do not take into account the growth in numbers and sophistication of in-house counsel and the often-expressed desire of clients to have knowledgeable in-house attorneys handle repetitive transactions nationally. The Section believes that in-house counsel serve an important and effective role in protecting their employers against the dangers which typically justify restrictions on unauthorized practice, by regulating and evaluating the advice they receive from outside counsel. As a result, the engagement of a lawyer by a corporate counsel should be treated differently than engagements by clients which do not have the benefit of an employed legal officer. We urge the Commission to clarify, among other things, that engagement of a lawyer by a legal officer of a client based outside of the state in which the lawyer is admitted, constitutes association with locally admitted counsel (assuming that the legal officer is admitted in the state in which he or she is employed) for purposes of the safe harbor.
Finally, the Section feels it is important that the Commission adopt rules which create symmetry in the treatment of litigation and non-litigation practices. For example, the factual and legal investigation associated with potential litigation and the factual and legal investigation associated with due diligence in the context of a corporate acquisition or stock offering should be accorded the same status under the safe harbors. This should not be understood to relieve a litigator from the obligation to seek admission pro had vice at the appropriate time in a litigation matter nor to permit a corporate lawyer to use factual investigation as a pretext to provide local law advice in a jurisdiction in which the lawyer is not admitted.
The Section of Health Law supports changes proposed to the existing codes of legal ethics, laws and rules regulating the profession of law by the American Bar Association's various committees and commissions as set forth below. The Section supports these changes in order to serve the interests of the public, clients, and the profession. Specifically, the Section:
- Supports revised Model Rule 5.5 of the ABA Model Rules of Professional Conduct as proposed by The Commission on the Evaluation of the Rules of Professional Conduct (hereafter, "Ethics 2000"), subject to the comments noted below;
- Supports revised Model Rule 8.5 as proposed by Ethics 2000;
- Proposes that Model Rule 5.5's safe harbor, which specifies situations when a lawyer not admitted to practice in the jurisdiction adopting the Rule but admitted in another jurisdiction may practice in the jurisdiction adopting the Rule, be expanded to permit a lawyer to practice 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 (for the purposes of this and subsequent rules, a lawyer is "permanently based" in a jurisdictionin which: (a) the lawyer is admitted to practice, (b) the lawyer maintains an office or similar location for the purposes of providing legal services, and (c) the lawyer regularly and continuously provides legal services to clients in the jurisdiction.)
- 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
- the lawyer 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;
- 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 provided that the lawyer is not permanently based in the jurisdiction in which he or she is not admitted and that the lawyer does not hold himself or herself out as admitted to practice in the jurisdiction in which he or she is not admitted;
- Proposes the addition to Model Rule 5.5 of a safe harbor which allows a lawyer to provide services in a jurisdiction in which he or she is not admitted so long as (1) the services are provided in connection with an investigation or other work in preparation for or anticipation of litigation, arbitration, mediation, or other dispute resolution process and (2) no such litigation, arbitration, mediation, or other dispute resolution process has been commenced, regardless of where it is anticipated such litigation, arbitration, mediation or other dispute resolution process may be initiated and regardless of whether such dispute resolution process is ever in fact initiated;
- Proposes the addition to Model Rule 5.5 of a safe harbor for services in a jurisdiction adopting the rule by a lawyer admitted in another jurisdiction but not in the jurisdiction adopting the rule in connection with arbitration, mediation, or other non-judicial dispute resolution process;
- Supports the need to protect in-house attorneys when they are providing legal services in jurisdictions in which they are not admitted in order to further the legal interests of their clients and therefore specifically approves of Model Rule 5.5 (b) (2) (I) and recommends that it be adopted as proposed.
- 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 the unauthorized practice of law if performed by a non-lawyer in the jurisdiction in which the lawyer is not admitted;
- Encourages the controlling authority in the States (the state bar commissions or Supreme Courts) to make the rules for pro had vice admission uniform throughout the United States; and
- Urges the ABA Commission on Multi jurisdictional Practice 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 which arise in connection with the revision of the rules regarding the unauthorized practice of law or the Multi jurisdictional practice of the profession. Those issues require further study and debate. The Section intends to follow closely the work of Ethics 2000 and the ABA Commission on Multi jurisdictional Practice and will, as appropriate, make its views known on the issues.