AMERICAN BAR ASSOCIATION
COMMISSION ON MULTIJURISDICTIONAL PRACTICE
SAN DIEGO CONVENTION CENTER
SAN DIEGO, CALIFORNIA
FEBRUARY 16, 2001
Wayne J. Positan, Chair – Opening Remarks 1
John McGuckin - American Corporate Counsel Association 3
Jeffrey L. Russell 27
Paul McLaughlin - The Law Society of Alberta 35
Joseph R. Giannini 47
Edward Kallgren – ABA Senior Lawyers Division 51
Amy C. Cashore – ABA Young Lawyers Division, Special Committee on
the Future of the Profession 53
Craig A. Landy – President, New York County Lawyers Association 58
William Barker – International Association of Defense Counsel 70
Dennis Stryker 83
Barry D. Epstein – President, New Jersey State Bar Association 91 James R. Edwards- American Corporate Counsel Association 99 Pamela I. Banner – ABA Section of Intellectual Property Law 106 Brigadier General David C. Hague – ABA Standing Committee on
Legal Assistance for Military Personnel 112 Andrew J. Guilford – Immediate Past President,
State Bar of California 118
1 MR. POSITAN: Good morning. My name is Wayne
2 Positan. I am the chair of the ABA Commission on
3 Multijurisdictional Practice. I would like to welcome
4 everyone here this morning to participate in our
5 hearings and dialogues on this very important subject.
6 We have a schedule, basically, that has been
7 established through a sign-in procedure over the last
8 several weeks, and we have basically scheduled those
9 people every half-hour to give their remarks.
10 I want to emphasize that we have, in fact,
11 received -- and I know I'm speaking to the Commission
12 members here this morning -- the materials that have
13 been submitted to us. So please don't feel compelled
14 to repeat all of them and read them into the record.
15 They all will be part of the record that is being made
16 for this proceeding. We do have a court reporter
17 taking down everything that is said here.
18 One thing I want to emphasize on behalf of the
19 Commission is that this is intended to be a wide-open
20 process. This commission has not made any decisions
21 whatsoever. I know in some of the materials, at least
22 as to the New York materials, on page 6, that there's
23 an indication that we have already come out with some
24 sort of position on this issue. We have not.
25 We have not drafted anything or summarized
26 anything in any position because we don't have one yet.
27 That's why we're here. We're here to participate in
28 this process and to get as many inputs as possible from
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1 the profession. We started, obviously, by getting
2 perceptions of what this means to the public at large.
3 We really want to reach out, as you've seen in some
4 memos drafted by Harry Myers before he left for the
5 Bush Administration.
6 Our goal here today and through the hearings
7 we scheduled elsewhere -- we have hearings in New York
8 on March 30th, some hearings in Miami on or about June
9 1st. We also have further hearings in Chicago with the
10 annual meeting of the ABA in August. So our goal is to
11 get as many people possible participating in this
12 process as we can; and from there we will, hopefully,
13 come up with some recommendations and potential
14 solutions for recommendations to the ABA. There's no
15 set timetable on that at this point.
16 We have requested an extension for ourselves
17 also from the impetus of the people in this room from
18 the division. We expect to be hearing about that
19 during the weekend here. We're optimistic and hopeful
20 because we certainly think that we need a time to make
21 that time and assessment as well.
22 So we welcome you. We're interested in
23 dialogue. We'd like to have a give-and-take with you.
24 This is not a formal hearing in the sense that we're
25 just going strictly, as I said, to take a verbatim
26 statement. We want to talk to you. We want to hear
- what you say, and we care about what you say. We take
- that all into account from all the various
Peterson & Associates Court Reporting, Inc. 3
1 introspections as we try to deliberate and come up with
2 some ideas on this very important matter.
3 Having said all that, our first speaker is
4 John McGuckin from the ACCA. I'm interested,
5 obviously, in getting started with you.
6 MR. MCGUCKIN: Thank you, Mr. Chairman. Good
7 morning. My name is John McGuckin. I'm the executive
8 vice president and general counsel and corporate
9 secretary of Union Bank of California, which is
10 headquartered in San Francisco. I suppose I'm really
11 here not as legal counsel but as Ed Kallgren's warm-up
12 act. I'm also the current chairman of the advocacy
13 committee on the Board of Directors of the American
14 Corporate Counsel Association.
15 ACCA is an international bar association now
16 with 12,300 members who work for more than 5,000
17 nonprofit and profit organizations in the United States
18 and around the world. We're pleased to have the
19 opportunity to participate in your discussions on the
20 important issue of multijurisdictional practice.
21 Since 1986, the ACCA Board of Directors and
22 the leadership and members of our 43 local chapters
23 have participated actively, both in the national and
24 local levels, in the MJP debate hoping to provide what
25 we think is a valuable in-house perspective.
26 Our members not only provide personal and
27 legal services to their employer-clients, but we also
28 purchase hundreds of millions of dollars of legal
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1 services from thousands of lawyers and law firms across
2 the country and increasingly around the world. As a
3 result, we are interested in your work not only as
4 attorneys but also as representatives of some of the
5 largest users of legal services in the country.
6 During your hearing, my colleagues, Jim
7 Edwards and Dennis Stryker, will describe the practical
8 day-to-day issues with in-house counsel in practicing
9 in what we believe is an increasingly
10 multijurisdictional environment.
11 I don't plan to anticipate their testimony or
12 repeat the testimony that we have submitted to you in
13 writing. Rather, I'd like to summarize our position
14 and present to you a proposed solution that I hope we
15 can keep in mind as you hear from other witnesses. We
16 believe that the case for committing an in-house
17 attorney to engage freely in the multijurisdictional
18 law rests on two propositions.
19 First, our clients, our employers, need a wide
20 range of specialized legal services on a state,
21 national, and increasingly global level. These
22 clients, many with in-house legal staffs, seek by word
23 of mouth, phone, fax, and E-mail the best and most
24 cost-effective legal counsel wherever the lawyer may be
26 These increasingly sophisticated legal
- consumers are not constrained by state boundaries,
28 state rules about the practice of law, or restricted by
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1 court rulings, like the Birbrower case here in
2 California, as they seek to effectively seek to use
3 outside counsel and the company's in-house legal staff.
4 Second, in-house counsel provide legal
5 services system-wide, not just in the state in which the
6 legal department is located. We have phone, fax, and
7 E-mail links to every office, plant, branch, and
8 division of the company and are expected to respond to
9 the constant flow of legal inquiries which come from
10 all parts of the company's system.
11 In addition and in an effort to best utilize
12 the experience and expertise of the in-house counsel
13 staff, our clients often send an in-house attorney to
14 another state on temporary or permanent assignment. As
15 long as these in-house lawyers practice only on behalf
16 of their employer, the public protection and other
17 arguments for impediments on the in-house MJP we don't
18 think are persuasive.
19 In short, the clients need to compel us to
20 find ways to support an effective multijurisdictional
21 practice throughout the United States. ACCA believes
22 that a uniform system with MJP is the best way to
23 address the practical issues faced by in-house counsel
24 as we personally represent our clients and hire outside
25 counsel to assist us.
26 Fifteen states have already adopted with
27 variations in the details an in-house counsel exception
28 which protects the general public while recognizing the
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1 importance of in-house practice for other states,
2 including California, and will consider the merits of
3 such rules. We believe that it is time to build on the
4 experience of these states and seek a national MJP
5 uniformity for in-house counsel, and we urge for
6 outside counsel as well.
7 After nearly two decades of study and debate,
8 ACCA supports a solution which permits in-house
9 attorneys to engage in a multijurisdictional practice
10 with a minimum of formalities. Those in-house counsel
11 who transfer from one in-house position to another in
12 different states should not be required to take another
13 bar exam provided that they are in good standing in
14 their original state, passed the new state's character
15 review, and agree to be subject to the disciplinary
16 system of their new state of residence.
17 In addition, those in-house counsel who
18 provide legal advice and services to employees of their
19 corporate client located in other states in person or
20 by phone, fax, or E-mail should not be held to engage
21 in the unauthorized practice of law.
22 The third leg of our proposal which we
23 submitted to you in writing as relates to outside
24 counsel is similar with what we recognize but is more
25 controversial. First, we believe that the individual
26 state should continue to regulate first-time lawyer
28 Second, any lawyer in good standing who has
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1 been previously admitted to a state bar should be able
2 to move to a new state of residence and be admitted to
3 the practice of law without taking another bar
5 Third, our proposal suggests that individual
6 states should also have the authority to regulate the
7 multijurisdictional practice of lawyers who
8 occasionally cross state lines under a national compact
9 adopted by all the states. Those attorneys who are
10 admitted in one state and whose business occasionally
11 or temporary calls them to other states should carry
12 with them an inferred license that authorizes their
13 practice but subjects them to local regulatory control
14 without the need for additional bar exams, motions,
15 associated local counsel, or other formal requirements.
16 We believe that this compact arrangement will
17 work for both in-house and outside counsel. We
18 understand that the devil is undoubtedly in the details
19 here, but ACCA hopes that to assist you in exploring
20 these details -- Susan Hackett, our general counsel, is
21 a liaison for this commission. We hope that you will
22 call upon her, me, and the other ACCA representatives
23 at any time during the process.
24 We believe the time for change is now. The
25 practice of law in Europe has already abandoned the
26 international boundaries as limitations and other
27 federal systems likes Canada, Australia, and soon
28 Germany will move successfully to MJP admissions and
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1 licensing standards, which facilitate rather than
2 hinder the practice of law.
3 We recognize that this is a complex, often
4 emotional issue in which change is not easy; and
5 reasonable minds often differ on the best approach.
6 During the hearing you will hear from many other
7 constituents. We hope others like ACCA will present to
8 you a proposal you can think about.
9 We think our proposal is simple and workable
10 and is in line with the goals of our profession to
11 provide high quality service to our clients. But we
12 think it is far more important that the legal
13 profession not let this opportunity to address the MJP
14 issue slip by without a reasonable analysis and some
15 form of positive proposal from the organized bar.
16 This commission and the ultimate proposal,
17 whatever it is, will be critical in encouraging the
18 cooperation of state bars to create a system which will
19 work across the country. Your recommendations will
20 influence local debate on this issue. We hope the ABA
21 will lead the American Bar to a solution.
22 At ACCA, we have waited since 1990 -- 1986 for
23 this window of opportunity to open. We want to assure
24 you of our support and cooperation in this endeavor.
25 With that, thank you. I'd be happy to respond to any
27 MR. POSITAN: John, in terms of the ACCA
28 proposal, you've outlined certain things about what
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1 would happen in the home state admission and other
2 models that you've listed under occasional temporary
3 presence. I see under your provision concerning home
4 state admission that you discuss a number of subjects
5 that certainly concerns me with part of our discussion
6 on the issue, part of many discussions.
7 When you get into the discussion of mandatory
8 CLE and pro bono requirements -- for example, in New
9 Jersey we have a mandatory pro bono system. I see what
10 you're saying in terms of how you conceptualize when
11 somebody changes their home state in effect.
12 What do you do in a situation where you have
13 an in-house counsel who works in one state but in
14 effect works pretty continuously in two or three or
15 four contiguous states? Let me assume -- let me give
16 you a good example because of the geographic boundaries
17 and so on and so forth.
18 Let's assume you have an in-house counsel who
19 is basically headquartered in New Jersey but has a
20 significant regional presence in the northeast; and
21 that person, because of the areas that they're assigned
22 to, works more than what you would call on a temporary
23 basis, let's say, in New York, Pennsylvania,
24 Connecticut, Rhode Island, Massachusetts. Let's say
25 they are in one of those states about once a week as
26 they travel around taking care of HR or whatever else
27 they might be doing.
28 What would you say in that situation in terms
Peterson & Associates Court Reporting, Inc. 10
1 of what those responsibilities might be to those
2 particular states and their mandatory pro bono
3 requirements, the CLE? How would that work?
4 MR. MCGUCKIN: I think that the concept of the
5 home state -- and you're raising important details and
6 I'm not sure we have all the satisfactory responses to
7 that -- but I think the concept of the home state in
8 this case, not the attorney, is that a lawyer should be
9 subject to the pro bono, the MCLE, and the other
10 requirements of the state in which he or she is
11 admitted; so in your example that should be New Jersey.
12 I don't think that we should impose upon the
13 lawyer a variety -- in this temporary situation a
14 variety of jurisdictional components other than the
15 disciplinary components because I think that most
16 states have MCLE at some level, not all have pro bono
17 requirements, and that's a very difficult kind of issue
18 to deal with. But we think that in your case if the
19 lawyer is a resident in New Jersey but has client
20 contacts throughout the contiguous states, that he or
21 she should be held to the responsibility in New Jersey
22 as long as they are practicing only for the in-house
24 If this lawyer leaves his in-house employment,
25 then I think that's another matter for us, especially
26 if they move; but I don't think that you would carry
27 the baggage of all 50 states, because that's just not
28 effective and that's not efficient. Similar cases may
Peterson & Associates Court Reporting, Inc. 11
1 be imposed to outside counsel.
2 MR. POSITAN: Well, in opinion No. 14 permits,
3 in the last 25 years, in-house counsel to assist their
4 client or employer in the contact of their legal
5 affairs in New Jersey; otherwise, they wouldn't
6 (inaudible) to take advantage of them, and obviously
7 disciplinary systems is one extremely important aspect
8 of it.
9 But I'm really getting beyond the question of
10 just what's temporary. I'm not talking about a
11 temporary femoral event where you go into a state and
12 perform one real estate transaction, let's say, on
13 behalf of the corporation.
14 I'm talking about something that contemplates,
15 and I know it's a little bit of a tough problem I'm
16 trying to drive at here. I am not talking about
17 somebody who is more than just temporary, but somebody
18 whose presence may exist in five states on a regular
19 basis because they're assigned to take care of HR in
20 the northeast region.
21 That contemplates that they have people in
22 those local regional offices in each state, but they
23 are basically going there on a regular basis and
24 deciding what should be done on some particular
25 personnel or union situation. And I know from my
26 practice that this is not an absurd or abstract
27 example, but it is very common, something that I see
28 all the time.
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1 MR. DIMOND: There is a New Jersey statute
2 that you are signing that allows an attorney in New
3 York to be employed by a New Jersey employer and never
4 become admitted to the New Jersey bar even though his
5 main offices are in New Jersey, and that person never
6 becomes admitted to the New Jersey bar; is that the
7 crux of that statute?
8 MR. POSITAN: It's an ethics opinion. That's
9 my understanding on that.
10 MR. DIMOND: So, in your opinion, when you're
11 saying that the lawyer needs to be subject to the rules
12 of the jurisdiction by which he admitted -- in Wayne's
13 example, that lawyer would not be admitted in New
14 Jersey. The question is, can you really impose on that
15 person, who is under some exemption or other situation,
16 the requirements of New Jersey law, continuing
17 education, pro bono and so on, notwithstanding the
18 original admission would be in New York or in
19 California where he has no further contact?
20 MR. POSITAN: I'm driving at the question of,
21 you know, let's say -- we have a county in New Jersey
22 that has a very severe problem. It happens to be the
23 one with the smallest population of lawyers, and they
24 contend that they get an inordinate amount of pro bono
26 Let's assume that somebody from that county
27 would come up and say, "Gee, this isn't fair. We have
28 all this MJP stuff, and that's all great; but how come
Peterson & Associates Court Reporting, Inc. 13
1 I have to take ten mandatory pro bono cases a year,
2 and all these corporate attorneys coming into New
3 Jersey, they don't have take any? What's fair about
5 What's ACCA's position on mandatory pro bono?
6 What are they willing to do in order get what they
8 MR. MCGUCKIN: Well, I'm not sure that I even
9 know our position on that. I apologize. Do we have a
10 position on that? This is when general counsel turns
11 to his outside counsel and says, "What do we say?"
12 MR. POSITAN: Well, this is a dialogue.
13 MS. HACKETT: We don't have a formal or
14 general position. Our position has always been that we
15 do not support mandatory pro bono; that many major pro
16 bono organizations and institutions (inaudible) with
17 both the ABA level and the state level where they
18 believe that you can't create the proper professional
19 environment to encourage pro bono by making it
21 MR. POSITAN: Well, we have people in South
22 Jersey who would disagree with that.
23 MR. DIMOND: May I ask a question?
24 MR. POSITAN: Just jump in. Again, this is a
25 dialogue. That's what we're here for, to answer these
26 kind of tough questions.
27 MR. DIMOND: Thank you. I see two
28 distinctions within your group of proposals. One is
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1 that you focus on a single client relationship which --
2 pointing out 15 states have recognized unique rules in
3 that setting. Do you see a distinction that would, in
4 effect, resolve your problems, if at all, if the states
5 had some form of uniform exception for single client
6 representation? And, secondly, how did your proposal
7 relate to the need to appear in court in the various
8 jurisdictions as opposed to rendering in-house work,
9 literally in-house?
10 MR. MCGUCKIN: Well, to answer your first
11 question, I think the answer is "Yes." I think if the
12 exception or the rule for in-house counsel were uniform
13 that as long as you provided service only to the single
14 employer in an in-house situation, then I think that
15 this situation works well for us and to some degree the
17 The distinction between litigation and
18 transactional work is a detail that I'm not sure that I
19 have that much a problem with, but I'm not a litigator.
20 I have great respect for litigators, but -- I know
21 you're a litigator. And I think that the court's -- we
22 see in the discussion historically to divide the issue
23 from litigation and courts. In fact, many of the
24 exceptions that have already been adopted by the states
25 have exception to the exception for litigation. And in
26 that case, we have the normal admission by pro hoc vice
27 or admissions for some type of a motion for a
28 particular matter.
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1 It seems to me that the courts are pretty good
2 at policing the competence and the ability of the
3 people in front of them. That's what judges do all the
4 time. And there's some variety even in the federal
5 system in which there are some federal courts, district
6 courts, which do not require admission in the bar --
7 the local state to be admitted.
8 So as a general counsel looking at what is
9 provided by the in-house counsel to the single employer
10 and trying to think what am I being protective about, I
11 don't see any difference between transactional law and
12 litigation. In other words, it seems to be appropriate
13 if I have an in-house litigator on my staff who is
14 admitted in the state of California and therefore can
15 appear with the appropriate formalities in any court,
16 state, district, and federal, in California, that he
17 ought to be able to take that experience, that ability,
18 to Oregon or New York or Illinois.
19 MR. DIMOND: You can go do that on a pro hoc
20 basis. If you do it frequently enough, it's no longer
21 pro hoc. Pro hoc is no longer applicable.
22 MR. MCGUCKIN: At that point I think there may
23 be a need for more regulation or more jurisdiction.
24 Maybe that's not a temporary type of issue. If you're
25 creating a practice for yourself which focuses in
26 another state which requires you to appear before the
27 courts quite often --
28 MR. DIMOND: You contend with the pro hoc
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1 rules in terms of where they stand with the litigation
2 specialty, and it doesn't have the same type of rule
4 MR. MCGUCKIN: Well, I don't want you to set
5 aside the litigation issue because, as I said,
6 personally the transaction issue may be a little bit
7 easier to deal with, but I don't think we should skip
8 over the litigation. I think that many of the same
9 arguments with regard to who are we protecting, you
10 have to ask, "Who are we protecting?"
11 We're still protecting the same -- we're
12 trying to protect the same client, who I suggest to
13 you, doesn't need protection.
14 Number two, are we concerned about the ability
15 of a lawyer to practice within the framework of a
16 particular court in which he or she is appearing?
17 That's a matter of a local rule. If I'm a litigator in
18 California and admitted to California, my office is in
19 San Francisco and I appear in a court down here in San
20 Diego, the rules are different. One of the things that
21 I'm required to understand and research is what are the
22 appropriate standards for practicing in San Diego or
23 Los Angeles.
24 I think that the ability of lawyers, our
25 training, says that it doesn't matter. If we can do it
26 from San Francisco to Los Angeles, we can do it from
27 San Francisco to Chicago to New York to New Jersey.
28 The rules in the litigation standards are the same,
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1 especially in Federal Court.
2 MR. DIMOND: You're talking about two things.
3 You're saying who are we protecting. The "who" we're
4 protecting doesn't necessarily have to be the client in
5 the transactional setting. There's a second party that
6 we're protecting, if I can use that phrase. We're
7 protecting the court system when you talk to the
8 litigation contact in addition to the client.
9 MR. MCGUCKIN: But I'm not sure what the
10 danger is that you're protecting the court system from.
11 MR. POSITAN: Well, in every situation you
12 have an adversary and a party involved. And presumably
13 even beyond, the judicial system in this case of
14 litigation but this whole system of justice comes into
15 play, and you're talking about the public interest.
16 So there seems to be broader concerns and
17 compelling things that we have to worry about to
18 protect the public, who often is not heard from. We
19 just presume that everything is okay because you
20 lawyers are working this out. That needs to be
21 protected as well to make sure that whatever we do here
22 doesn't begin to erode some of the very, very important
23 values of that system in general.
24 MR. MCGUCKIN: I would certainly agree with
25 you on that. The integrity of the justice system is
26 important to our system of jurisprudence, and we as
27 professionals and officers of the court -- we're all
28 officers of the court, whether or not we're
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1 transactional lawyers or litigation lawyers; we have
3 But I think, again, you have to come back to
4 who are we trying to protect and what are we trying to
5 protect them from? If we're trying to protect the
6 adversary from an unethical lawyer, a lawyer who
7 doesn't keep bargains, who is outrageous in the
8 courtroom, the judge is very good at running his or her
10 If we're trying to protect the lawyer from
11 malpractice, from lack of knowledge of the underlying
12 law, or the underlying process, I don't think that the
13 current system really does that. If we are trying to
14 protect the public from the -- in the sense of what --
15 strike that.
16 I was on the State Board of Governors for the
17 State Bar of California, as some of you know; and in
18 those days we focused on the integrity of the court
19 system as well as the reasons for the disciplinary
20 system. Who did we discipline? We don't discipline --
21 60 percent of our disciplinary cases in the
22 state of California arise from substance abuse. They
23 arise from lawyers who embezzle from the IOLTA
24 accounts. They arise from this type of conduct.
25 That's what the disciplinary system focuses on, not
26 someone from Illinois who comes in and practices before
27 a court in Missouri across-the-board.
28 So I think you're raising important issues,
Peterson & Associates Court Reporting, Inc. 19
1 and I don't want to throw the baby out with the bath
2 water. I think the integrity of our judicial system is
3 very important, and it may well be in your
4 consideration and in your final report, that you decide
5 the place that we ought to start this is with
6 transactional lawyers; and we'll leave the litigation
7 issue to come on along when we have more experience
8 with how things work.
9 MR. POSITAN: The perception of the system as
10 a whole is important, the reality of it.
11 MR. MCGUCKIN: Absolutely.
12 MR. POSITAN: It also seems to me that you
13 can't look at a transaction in the sense of it only
14 affecting the people -- part of the transaction.
15 Because transactions, as we know, often affect the
16 public even if they are not a party to the transaction.
17 What happens like in a particular environmental case, a
18 particular land deal, zoning, developmental right
19 affect not only the people who are a party to the
20 transaction, but people who are affected by that
21 transaction may not have anything to say; but in terms
22 of the perception of how the legal system works must be
23 taken into account even in that situation.
24 MR. GILLERS: Wayne, may I ask a question?
25 MR. POSITAN: We do have to be mindful of our
26 scheduling. One thing I want to say is with this
27 dialogue, things tend to unfold and lead to other
28 things. We are having another session this afternoon
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1 from 2:00 to 5:00, which is going to be a totally open
2 dialogue, round table, not unlike what you've already
3 seen here this morning. We encourage people to
4 participate in that, and ACCA will come back and
5 participate and have further exchange of ideas as well.
6 Obviously, there are a lot of important
7 issues. When we begin to talk, every rocky turnover
8 seems to have three more.
9 MR. GILLERS: I apologize because I came in
10 late. We're all mindful in this field early on that it
11 has been important work. I have three very focused
12 questions about the proposal that would help my
14 The first is, would your proposal apply to
15 lawyers who while admitted in their home jurisdiction
16 could not gain admission to the other jurisdiction
17 perhaps because they're graduates of non-approved law
18 schools? If that lawyer could not gain formal
19 admission to the host jurisdiction, would he or she
20 nevertheless qualify for these licenses that you
22 MR. MCGUCKIN: The answer would be, yes. The
23 proposal is based on an assumption of respect for the
24 admission requirements of another state. There are
25 undoubtedly as we now have major differences in
26 admission requirements, and you have raised probably
27 one of the most difficult ones for us in California.
28 At some point we have to break through that.
Peterson & Associates Court Reporting, Inc. 21
1 At some point we have to recognize that the
2 multijurisdictional practice of law is a
3 multijurisdictional practice, and we have to assume and
4 give respect to whatever each state does.
5 MR. GILLERS: So would your answer be the same
6 if the lawyer had applied for admission in the host
7 state, took the bar examination, failed three times,
8 was not qualified to take it because there's a cap on
9 the number of times you take it, passes it in the home
10 state and returns to the host state and seeks admission
11 under this alternate route?
12 MR. MCGUCKIN: Even if she's been admitted to
13 a bar and assuming that he or she remains in good
14 standing and can pass -- I think the character issue is
15 important in the new state, the other states, because I
16 think that's the essence of the disciplinary issue.
17 The answer is, yes.
18 MR. GILLERS: My next question is, your
19 statements suggest that the lawyer who was admitted in
20 this example would be able to represent the employer
21 entity, but I've seen in ACCA material, maybe
22 elsewhere, the proposition that they should also be
23 able to represent other employers of the employer
24 entity on their personal matters: Officers, directors,
25 agents, and fellow workers. Is that part of your
26 proposal, or are you limiting the work solely to the
27 entity itself?
28 MR. MCGUCKIN: It's certainly the latter. I
Peterson & Associates Court Reporting, Inc. 22
1 don't recall necessarily any of the other references
2 that you're mentioning, but we would draw the line
3 there. I, as a general counsel, draw the line there
4 for my lawyers who work for me. They cannot provide
5 personal legal services to employers, agents,
6 directors, or officers.
7 In response to your earlier question, I would
8 carve out an exception with regard to pro bono because
9 there we're going outside the scope of the employer.
10 But I don't think -- I think that the proposal stands
11 upon providing legal services to the sole client.
12 MR. GILLERS: My last question is, because
13 this is not clear from the proposal, would the
14 admission route also be open to lawyers whose home
15 jurisdiction is a foreign nation?
16 MR. MCGUCKIN: That's a nice jump, and I
17 suppose I'd adopt -- and we would suggest that you
18 adopt a water's edge approach to that type of issue.
19 MR. GILLERS: Wouldn't that exclude Hawaii?
20 MR. MCGUCKIN: I was almost admit Hawaii.
21 With all due respect to my colleagues in Hawaii and
22 Alaska, I think that the debate needs to start here.
23 You're raising a very important issue of international
24 practice, and at this point I think in many cases
25 countries outside the United States are ahead of us and
26 certainly in Europe. Canada you'll be hearing from
27 later today, I understand from a representative of the
28 Canadian Bar Association. I'll let them speak to their
Peterson & Associates Court Reporting, Inc. 23
1 own experience.
2 The reality is in a cyber world that the
3 competition for America's lawyers is going to come from
4 overseas. Now, does that mean that we at ACCA believe
5 that we should be opening the system to overseas
6 lawyers? I don't know. What I would suggest, though,
7 that from my experience in the State Bar
8 California that we have a process here in California
9 which enables lawyers from overseas to become active
10 members of the State Bar of California.
11 MS. YU: No, they can't.
12 MR. MCGUCKIN: Well, they can provide legal
13 services, and we've had that for 15 or 20 years. I can
14 remember ten cases. That just seems to be besetting a
15 bureaucracy and a regulatory network that doesn't
16 address the real problem.
17 MR. POSITAN: Is that because people don't
18 know about it, or people just choose not to use it?
19 MR. MCGUCKIN: Oh, it's an incredible process.
20 I had to make these decisions when I was in the State
21 Bar, and it takes an enormous amount of information.
22 But then you get back to a lot of the same policy
23 issues and the same judgment calls that you make in the
24 United States. I think it's much more difficult.
25 I'd rather have you think about the
26 jurisdiction that admitted the colleagues who are
27 seated beside you on either side of this table that are
28 thinking if someone who is admitted in Singapore or
Peterson & Associates Court Reporting, Inc. 24
1 some other jurisdiction.
2 MR. POSITAN: We have it in New Jersey. We
3 adopted it, and my information is that nobody has ever
4 applied it. When I look at it, I look at it not being
5 an unreasonable matter of dealing in terms of somebody
6 wanting it. 170 people in New York have it, and again
7 I assume from that number, it must mean that they must
8 be doing something that encourages them doing it.
9 MS. GARVEY: I think a lot of people think
11 MR. MCGUCKIN: I think the reason is we have
12 foreigners come to the United States and take the bar
13 exam and don't bother with the foreign consultant rule
14 because most foreigners speak English adequately to
15 take a bar. It's a very easy way for them to be an
16 American lawyer.
17 The real problem is in the reciprocal area
18 where American lawyers want to practice abroad and they
19 don't speak Slovak and they don't even speak French.
20 Therefore, we're very anxious to have foreign legal
21 consultants in foreign countries so American lawyers
22 can operate abroad.
23 MS. GARVEY: I have two very focused
24 questions, John. One is how do you distinguish the
25 case of in-house counsel from somebody who is in
26 private practice but perhaps works almost solely for
27 one client and does exactly the same sort of thing,
28 sort of pseudo-general counsel of the outside firm? Are
Peterson & Associates Court Reporting, Inc. 25
1 there distinctions that can be drawn there?
2 MR. MCGUCKIN: Well, I would like to draw a
3 bright line for the in-house counsel because I see
4 where you're going.
5 MS. GARVEY: I'm not going anywhere. I'm just
7 MR. MCGUCKIN: I think you need to set the two
8 cases aside. There is an employer-employee
9 relationship for the in-house counsel as opposed to
10 more of the normal agent type of relationship to
11 outside counsel. Even if there are outside counsel who
12 bear the title "General Counsel" for some of their
13 corporate clients, I don't see them as within the
14 constituency of the in-house bar. I think they should
15 be treated as outside counsel.
16 MS. GARVEY: Yes. But my question really
17 wasn't about the constituency of inside counsel, but
18 rather in terms of trying to draw a rule or make a
19 suggestion for a solution. Can we validly make
20 distinctions based upon, you know, employment
21 relationship only where you expect the same thing?
22 That's troubling.
23 MR. MCGUCKIN: I am not sure you want to slice
24 it that finely. I understand the form over substance
25 issue, but I think that if you're employed by a company
26 in-house, as an employee, when you have that
27 relationship, I think that's the one case. I think we
28 would treat the other cases that you're raising as we
Peterson & Associates Court Reporting, Inc. 26
1 do with outside counsel.
2 Now, we also believe that outside counsel
3 should be treated in many ways in the same way when it
4 comes to crossing state borders to provide legal
5 services for a single client or for many clients.
6 MS. GARVEY: Well, that's where my question is
7 going. If we have a rule especially for inside
8 counsel -- but if you put it side by side by other
9 attorneys that do substantively the same sort of thing,
10 should we have just a rule?
11 MR. MCGUCKIN: Well, we would favor a rule
12 that deals with multijurisdictional practices for all
13 lawyers regardless -- I'm sorry. I really did miss
14 your point. -- for all lawyers, but we recognize that
15 the outside counsel -- you're going to hear from a lot
16 of outside counsel who can really focus on that.
17 My perspective as an employer of outside
18 counsel -- so let me take my lawyer hat off and put my
19 client hat on -- is that I would urge you to take that
20 extra step to move beyond the in-house lawyer to all
21 lawyers. Because as an employer-client, an outside
22 lawyer, I want to be able to find the best lawyer I can
23 find regardless of where he or she is located. The
24 current rules don't make that difficult because the
25 phone and the fax and the E-mail are there. They cause
26 problems that I don't think should be there between my
27 relationship between me and the law firms that I want
28 to hire.
Peterson & Associates Court Reporting, Inc. 27
1 MR. POSITAN: We'll get some other ACCA
2 representatives to come forward. We would like to
3 continue with Jeffrey Russell.
4 Mr. Russell?
5 MR. RUSSELL: Good morning, ladies and
6 gentlemen of the Commission. At the outset, I would
7 like to thank you for providing me with this
8 opportunity to address you this morning. My name for
9 the court reporter is Jeffrey Russell. I, unlike the
10 first speaker, am not representing any particular
11 organization. I am here speaking from my own
12 experience that I think reflects on the issue before
14 At the very beginning, the chairman said that
15 copies have been made of all the remarks, comments
16 prepared, and suggestions; that we do not simply read
17 them into the record. I won't do that, but I would
18 like to have the Commission's indulgence for just a
19 minute to touch on the highlights, to set the
20 background for the remarks that are to follow.
21 Four years after I graduated from law school
22 in Ohio -- I grew up in Ohio and went to law school
23 there. After law school, I joined the United States
24 Department of Justice. For approximately 16 years
25 thereafter I searched in various places starting out in
26 Cleveland, and then I went to Miami, from there to Los
27 Angeles, then to Department Headquarters in Washington
28 D.C. where part of my job was to assist smaller offices
Peterson & Associates Court Reporting, Inc. 28
1 in other parts the country or offices that needed
2 particular help.
3 In this capacity I tried cases in New Jersey;
4 Reno, Nevada; Baltimore; and I assisted in cases in
5 Philadelphia. After that, I came out on special
6 assignment to San Francisco. The entity that I was
7 working for within the Department of Justice was
8 eventually absorbed in the U.S. Attorney's office. I
9 then became a district attorney in San Francisco.
10 So I think it's fair to say that I've had a
11 pretty broad practice in the area of federal
12 prosecutions. In the time that I spent with the
13 Department of Justice, I tried about 45 cases for trial
14 in seven different federal districts. I also wrote 20
15 appellate briefs and argued cases in the first six 9 to
16 11 Circuit Courts of Appeal.
17 So as I was saying, I think I've had in my
18 area of expertise, in my practice in the criminal
19 arena -- I've had a national practice during those
20 years. A few years ago, for a variety of reasons, I
21 had an opportunity to take an early retirement from the
22 federal government, and I did so. My career just
23 happened to end here in California.
24 In spite of the background that I have just
25 related to you in my practice area of criminal law, I
26 am unable, because I am not a member of California Bar,
27 to appear in California State court. I submit to the
28 committee that based upon my background, I'm in a much
Peterson & Associates Court Reporting, Inc. 29
1 better position to represent people accused of crime
2 than somebody who just recently graduated from law
3 school, passed the California Bar exam, and got
4 admitted; but I am excluded from doing so.
5 In addition to that, in California there are
6 four federal districts. All four districts now
7 require, for a matter of admission, membership in the
8 California Bar. I am a member of the Northern District
9 because I got admitted before that rule changed.
10 For many years the other three districts in
11 California all had that rule requiring California
12 admission. And the Northern District, to be consistent
13 with the other three, eventually adopted positions. I
14 think it was in '96 or '97. I got in before that. I
15 don't remember exactly, but I got in before that; so
16 I'm, quote, unquote, grand-fathered in.
17 I'm in a position now where I could not go
18 into any of the other district courts in California
19 even with my experience because I am not a member of
20 the California Bar.
21 Additionally, the way things work in the
22 criminal justice system for indigent defendants is that
23 if they qualify for appointed counsel, they're
24 appointed the federal public defender. If there is any
25 conflict with the federal public defender, particularly
26 with multiple defendant cases, then there's a panel of
27 lawyers that can be assigned to represent the indigent
Peterson & Associates Court Reporting, Inc. 30
1 I am not eligible to be on that panel simply
2 because I'm not a member of the California Bar. In
3 spite of the fact that I was a prosecutor for more than
4 16 years, I'm not considered, quote, unquote, qualified
5 to represent indigent defendants in this state.
6 I suggest that some form of universal
7 reciprocity is appropriate. I offer myself as an
8 example only that I am sure there are countless other
9 examples. I know that there are many people who have
10 worked for the federal government, not just the
11 Department of Justice but any other departments, that
12 are employed here in California that cannot be admitted
13 to the California Bar on motions and would seek
14 admission if they were allowed to do so.
15 This would also increase, as the Chairman's
16 pointing out, more people to do pro bono work for one
17 thing, as well as the dues situation, which was a
18 thorny issue in California here several years ago.
19 Again, I want to thank you for the opportunity
20 to speak. I'm only representing myself as an example
21 of what I consider to be a situation that I believe
22 should qualify for some kind of admission in California
23 or any other state based on my background.
24 There are, of course, as you obviously know,
25 34 other jurisdictions who do have reciprocity on
26 motions, and in those states the sky hasn't fallen. So
27 I think you can draw on that experience that there's no
28 reason to believe some adverse affect will take place.
Peterson & Associates Court Reporting, Inc. 31
1 I don't have a specific proposal. I just
2 suggest that anyone who has been admitted to another
3 state and has "X" number of years of practice --
4 whether it is three years, five years, seven years,
5 whatever seems appropriate -- and who could otherwise
6 qualify on character issue, should be admitted on
8 MR. GILLERS: Mr. Russell, I'm just curious
9 excepting that the reciprocity should be generous in
10 some places shouldn't exist at all where they don't
11 now. I'm curious why in the five years since you
12 retired you haven't chosen to take the State Bar simply
13 to solve your own problem?
14 MR. RUSSELL: Well, there's several reasons.
15 I don't know many lawyers that have been out in
16 practice 25 years who would be interested in taking a
17 state bar. My area is criminal law. I don't think I
18 can be a very good criminal defense attorney without
19 knowing the rules of perpetuity.
20 Secondly, it's financial. It does cost money
21 to take the bar review course. Anyone would be foolish
22 not to take a bar review course. That costs money as
23 well as -- and I do work. Even though I'm not in
24 practice here, I can appear in federal court, and I do
25 have somewhat of a federal practice, and I assist
26 lawyers in preparing motions and briefs, which is
27 outlined in my remarks. I would have to basically give
28 that up for probably at least three months to prepare
Peterson & Associates Court Reporting, Inc. 32
1 for the bar.
2 This is a great burden that I do not believe I
3 should have to bear. Again, I point out that if I
4 started out for three or four years and I fought like a
5 law student instead of like a lawyer, that might be a
6 better question. That's why I suggest, for example, in
7 Ohio, at least when I was there, the rule was you could
8 get reciprocity if you're practicing for five years.
9 Obviously, if you're under the five-year limit
10 in Ohio, you can't; so those would be required to go
11 through a Bar exam. I have no quarrel with that; but,
12 again, I suggest -- and I look around this room and I
13 see people who appear to me to have been lawyers for
14 some time. The idea of taking a bar exam after 20 or
15 25 years is not particularly appealing.
16 MR. DIMOND: You are self-regulatory, is that
17 fair to say? You would basically say, I would like to
18 be admitted to practice in California, but I wouldn't
19 practice civil law? I wouldn't practice in areas that
20 I wasn't familiar with. Could you rely on me to know
21 my limits?
22 MR. RUSSELL: Yes, yes. That's what I'm
23 saying, right.
24 MR. DIMOND: But it would allow you to
25 practice in other states, practice in all of those
26 areas where you admit you have no particular
28 MR. RUSSELL: In a sense that there's a
Peterson & Associates Court Reporting, Inc. 33
1 general license, yes. I would have no objection to the
2 State of California if they decided to grant me a
3 license to practice criminal law only. I would be
4 satisfied with that.
5 But, again, I point out others states, 34
6 other states, do have that. I could go to any number
7 of states and be admitted. Obviously, I would be
8 subject to the disciplinary proceedings of the State
9 Bar. I don't see how it's going to be any different.
10 What I'm suggesting is because those 34 others states
11 have a state of reciprocity, that it ought to be a
12 universal thing; the other 16 states that don't have it
14 MR. DIMOND: You can't practice anything if
15 you're not competent to do so, whether you're admitted
16 specifically or generally the first time or the 15th
17 time. Every lawyer is obligated not to practice any
18 law that he's not competent.
19 MR. RUSSELL: Absolutely.
20 MR. DIMOND: So, therefore, I don't see why
21 one would need a specialized licensed such as being
22 suggested here.
23 MR. RUSSELL: That's exactly right.
24 MS. YU: Mr. Russell, does it matter -- should
25 it matter to this debate or your position in your
26 particular situation, the bulk of your practice had
27 been federal-criminal law as opposed to if it were just
28 general state of Ohio law or whatever? Should it make
Peterson & Associates Court Reporting, Inc. 34
1 any difference to you in that argument, or do you feel
2 it's more compelling because you have practiced federal
3 law in a number of jurisdictions and you should only be
4 able to do that?
5 MR. RUSSELL: Well, both. Both. I think it's
6 fair to say that most people who are practicing lawyers
7 for a certain number of years, whatever that time may
8 be, tend to specialize in one area or another. So if
9 they move from one state to another, if they practice
10 in the area of family law or business organizations or
11 personal injury, whatever it may be, they're going to
12 be in a better position to learn the rules and the law,
13 substantive law, in a state than somebody who just
14 graduated from law school and just passed the bar exam.
15 I'm not sure I'm answering the question.
16 MS. YU: I'm doing the federal practice side
17 of your law as opposed to the state law practices where
18 with presumably different law systems there might be
19 different things we have to learn; but if you're
20 practicing in the federal system, it's the same legal
21 set of arguments. That's what I'm saying. Should we
22 be making distinctions on that basis?
23 MR. RUSSELL: Well, I think there's
24 something -- yes. I mean, I'm here proposing universal
26 MS. YU: I understand.
27 MR. RUSSELL: But in terms of your question,
28 yes. Certainly in California where they restrict
Peterson & Associates Court Reporting, Inc. 35
1 federal bar admission for members only. There are
2 people who are experienced in the federal practice
3 only, not just criminal law like me. It could be
4 bankruptcy. It could be any other number of areas.
5 They may have many years experience in that area, yet
6 they can't be admitted to the federal courts in
7 California even if their practice were exclusively
8 federal. I certainly think that that should be
9 addressed by this commission.
10 MR. POSITAN: Once again, I don't mean to move
11 the agenda a little bit. Mr. Russell, I certainly
12 appreciate your coming here and hearing your remarks
13 and news on the subject. Thank you.
14 MR. RUSSELL: Thank you.
15 MR. POSITAN: If you would like some further
16 opportunity, we'll be here this afternoon from 2:00 to
17 5:00. We encourage more dialogue.
18 MR. RUSSELL: I wish I could, but I have to
19 get back.
20 MR. POSITAN: Next we call Paul McLaughlin,
21 Practice Management Advisor for The Law Society of
22 Alberta. I appreciate your coming here and discussing
23 these issues.
24 MR. MCLAUGHLIN: I must say I'm not here
25 representing anybody but myself in the sense that I am
26 not authorized by The Law Society and the law societies
27 to be their representative. I have followed the lists
28 of the RMPG Commission, and when I noticed that the
Peterson & Associates Court Reporting, Inc. 36
1 Commission was going to be here and I was going to be
2 here, I thought that I should contribute something to
3 this process.
4 That's the first time I've ever heard the
5 expression "water's edge" referring to the edge of our
6 countries, and I was trying to think as I flew down
7 from Alberta to Montana which water course it was that
8 marked the edge.
9 I start my remarks with a quote from Robert
10 Frost --
11 MR. POSITAN: We do have the same parts in the
13 MR. MCLAUGHLIN: Robert Frost wrote a Mending
14 Wall, "Something there is that doesn't have a wall /
15 That sends the frozen-ground swell under it / And
16 spills the upper boulders in the sun / And makes gaps
17 even two can pass abreast."
18 The reason why I start with that comment by
19 that section from the poem is because it's really, in
20 my mind, the issue here. The debate is about walls --
21 walls that we built along the jurisdictional
22 boundaries, along territorial boundaries, between
23 provinces, between states, and between countries --
24 that keep other lawyers out and also keep us in and
25 prevent us, as lawyers, from using our skills and our
26 ability and our knowledge as widely as we can.
27 We're interested in this in Canada because we
28 are a trading nation. We depend on trade for our
Peterson & Associates Court Reporting, Inc. 37
1 prosperity. This morning on CNN they announced that
2 Mexico has now become the number two trading partner of
3 the United States but didn't mention something that I
4 think a lot of Americans don't realize, and that is
5 Canada is the number one trading partner and has been
7 We have tremendous impact of globalization
8 into our province and into our country, and we are
9 interested in being able to trade with your country,
10 trade with Mexico, trade with the world; and to do that
11 we want to free our lawyers to be able to follow their
12 clients' needs to wherever they take them.
13 In Canada we have been driven in part by a
14 Constitutional change in 1982, which brought in a
15 Charter of Rights and Freedoms, which said that every
16 citizen of Canada, every person who has a status of a
17 permanent resident of Canada, has the right to move and
18 take up residence in any province and to pursue the
19 gaining of a livelihood in any province. So we have a
20 Constitutional mobility right in Canada.
21 My law society was involved in one of the
22 first Supreme Court of Canada's tests of this
23 particular provision of the Charter, which resulted in
24 us getting our wrists very thoroughly slapped for
25 trying to restrict lawyers from Ontario forming
26 partnerships with lawyers in Alberta.
27 We're also involved in the GATT and WTO
28 process and seeing that opening up. The federal
Peterson & Associates Court Reporting, Inc. 38
1 government has now told the legal profession that
2 they're next in terms of opening up the ability of
3 foreign lawyers to come to Canada under GATT.
4 We have an internal agreement on trade in
5 Canada, which is like a GATT for the provinces. And
6 although that hasn't had an impact on us in Canada, we
7 hope to anticipate the fact that it will shortly do
8 that, and we will then have to deal with
9 inter-provincial mobility.
10 So what we have done as a profession is
11 developed the reciprocal inter-jurisdictional practice
12 protocol to which all but two law societies have now
13 subscribed, and it provides for commitment by all law
14 societies to increase mobility. It provides for
15 temporary mobility, and I will say that provisions for
16 temporary mobility are very complex, very difficult to
17 administer and in western Canada have been basically
18 chucked out in favor of a much more flexible process.
19 It provides that the code of conduct of the
20 province in which someone is practicing will prevail.
21 It says that a visiting lawyer may not maintain a trust
22 account in a jurisdiction in which he is not licensed
23 and may not handle trust funds other than to take
24 retainers promptly back home. It has agreements with
25 respect to who shall have jurisdiction over discipline,
26 and basically it says both. It requires insurance.
27 Requires clients -- it sets up a national client
28 security fund and provides for arbitration of disputes.
Peterson & Associates Court Reporting, Inc. 39
1 The law societies in the western four
2 provinces -- Alberta, British Columbia, Saskatchewan,
3 and Manitoba -- found the safe harbor rules were just
4 too complicated and difficult to administer. So we
5 have moved beyond that in two regards. One is that we
6 have the check-in and licensing provisions and the
7 requirements to practice with a local attorney and
8 basically move to self-monitoring competence much like
9 Mr. Ehrenhart mentioned a little bit earlier.
10 We trust our lawyers not to practice in areas
11 where they are not competent. We can trust a lawyer
12 from British Columbia not to practice where he is not
13 competent; and if she gets in over her head, then
14 she'll find someone to help her just like we expect
15 from our lawyers.
16 We have also moved beyond a rule that said
17 that you're allowed to practice on ten matters for up
18 to 20 days in any 12-month period just simply saying
19 that you can practice for up to six months in any of
20 the other four western provinces in any year. If you
21 want to practice more than six months in a year in any
22 province, then you need to get locally licensed. So it
23 simplified it a great deal.
24 MR. POSITAN: I am interested in the protocol
25 that you experience, that you've had, reciprocal
26 inter-jurisdictional practice protocol. In reading the
27 materials that you submitted, I gather that it hasn't
28 been accepted by all the provinces, or is that wrong?
Peterson & Associates Court Reporting, Inc. 40
1 MR. MCLAUGHLIN: We have 14 law societies in
2 Canada. One of them is not a member of the federation.
3 MR. POSITAN: Who is that?
4 MR. MCLAUGHLIN: That's Minivet (phonetic).
5 They're a new territory, and they have 25 licensed
6 lawyers. So it's not a big part of our profession.
7 The two territorial law societies being UFFA (phonetic)
8 and Northwest Territories have not signed on. They
9 represent maybe 250 or 300 lawyers out of 80,000. The
10 rest of the provinces have all signed on.
11 MR. POSITAN: How does that work that we --
12 for example, down at the Dallas meetings where we had a
13 representative from Louisiana discuss the difference
14 between civil law and common law in the 49 states, is
15 that something that came into play in that effect?
16 MR. MCLAUGHLIN: That was not an issue, and it
17 goes back to -- I think Mr. Ehrenhart said that a
18 common law lawyer would be a fool to go into Quebec and
19 try to practice in an issue that comes out of the civil
20 code without associating himself with local counsel.
21 That's the way it's been approached, and that's the way
22 it's been working.
23 MS. NIRO: How does your disciplinary
24 structure instruct the fool that chooses to do so
25 without local counsel and makes a mistake?
26 MR. MCLAUGHLIN: Well, the point of fact is we
27 don't have very much actual experience because it
28 hasn't been a problem. Under the protocol, the
Peterson & Associates Court Reporting, Inc. 41
1 procedure would be for the local, in this case Quebec,
2 to proceed against that individual under the protocol,
3 the local -- the visited jurisdiction has authority
4 over that lawyer.
5 MS. NIRO: Would a home jurisdiction have
6 equal jurisdiction?
7 MR. MCLAUGHLIN: Yes, equal jurisdiction. In
8 addition to that, one of the remedies or one of the
9 sanctions that can be imposed as a declaration is, if
10 this lawyer has committed this offense and is a local
11 lawyer, they would have been disbarred. And then that
12 triggers then an obligation on the home jurisdiction to
13 consider whether they will, in addition, impose a
14 sanction that they can impose such as suspension of
16 MR. GILLERS: I have a question about
17 occasional appearance. Both the original 102012 rule
18 and the western provinces (inaudible) because one of
19 the issues that you have to deal with is the meaning of
20 "practice" in a jurisdiction.
21 When does a lawyer in State A practice in
22 State B? And one of the reasons we have to deal with
23 that, as I point in your remarks, is it's possible to
24 be virtually in a different state on a very continuous
25 basis though remaining physically in your home state.
26 So my focus of the question is on the 102012
27 rule, on the six-month rule. What constitutes practice
28 in the host state? Do you have to be physically in
Peterson & Associates Court Reporting, Inc. 42
1 there to start the clock running?
2 MR. MCLAUGHLIN: That has not yet been decided
3 or determined. At this stage of the evolution, the
4 four western provinces have accepted in principle that
5 it will move towards the six-month rule. Under the
6 102012 rule, there was so little experience with it.
7 There's no articulation of either regulations or
8 decisions that are made.
9 MR. GILLERS: Could a Canadian lawyer in one
10 province --
11 MR. MCLAUGHLIN: If I may, when you use the
12 expression occasional practice and not occasional
13 appearance, because it applies equally to any lawyer or
15 MR. GILLERS: Well, if a lawyer in one
16 province advertised broadly indirectly on the Internet,
17 for example, of his or her expertise in a particular
18 line of work and without ever leaving the home state
19 provided legal counsel to people nationwide in that
20 area of expertise, either through modern technology or
21 because they come to him -- maybe they live in the
22 neighboring province. He has an extensive national
23 practice and perhaps represents few or no people in his
24 home province. Perhaps it is truly a national
26 If he never leaves his home province and does
27 that year after year and perhaps has hundreds of
28 clients in the neighboring provinces, would that be
Peterson & Associates Court Reporting, Inc. 43
1 permissible even without the occasional appearance
2 rules, or does it have to count against the limits of
3 those rules? Maybe you haven't had that experience --
4 MR. MCLAUGHLIN: We have lawyers --
5 MR. POSITAN: How do you monitor that?
6 MR. MCLAUGHLIN: We don't monitor it. We say
7 it's a matter of self-monitor competence,
8 self-monitoring. We take the approach that the way
9 most of our lawyers are motivated to behave ethically
10 is because they want to be ethical lawyers. So we
11 don't focus our primary attention on that. We focus a
12 lot of resources on catching the small number of
13 lawyers who will push and maybe do it for seven months.
14 Who cares?
15 MR. GILLERS: Well, you don't let people go
16 without clients to other provinces. There is something
17 they have to do. They rotate. So you have to put some
18 boundary measured in time on work elsewhere. It seems
19 to me you then must define what you mean by "work
21 One of the problems for us -- and it seems to
22 be a problem with any federal system and the national
23 bar -- how do we deal with mass marketing and Internet
24 advertising on the one hand and multijurisdictional
25 practice limitations on the other?
26 MR. MCLAUGHLIN: I agree with you. I don't
27 know what the specific answers are because we don't
28 have specific answers to that. But we do not want to
Peterson & Associates Court Reporting, Inc. 44
1 get into the situation where we are saying the
2 difference between five months and 30 days is
3 fundamentally different between six months and two
5 So when a lawyer says I practice so much in
6 Alberta even though I'm home in Saskatchewan, that
7 ethically and fundamentally important to be a member of
8 the Alberta bar and that the lawyer ought to be
9 motivated to do that out of a sense of professionalism.
10 MR. POSITAN: Do you have things such as
11 mandatory pro bono or CLE requirements?
12 MR. MCLAUGHLIN: We have neither. We do, on
13 the other hand, have mandatory insurance which makes
14 that aspect easier to handle because every province
15 already has in place insurance programs that are
16 consistent across the country. We also have client
17 security fund provisions for the investor province; and
18 although they are different from province to province,
19 they are consistent enough where we were able to hammer
20 out an agreement.
21 I will say that the client security funds
22 issue was the hardest one to negotiate. The rest of
23 them we were able to get past pretty quickly. The
24 client security funds was very difficult to negotiate.
25 MR. POSITAN: What is your experience in terms
26 of American lawyers practicing in Canada and vice
27 versa? What are the issues?
28 MR. MCLAUGHLIN: There is a tremendous amount
Peterson & Associates Court Reporting, Inc. 45
1 of movement back and forth across the board in federal
2 immigration laws in both countries where I think they
3 notice that. So that -- you know, when I go to the
4 immigration office coming from Edmonton to here, all I
5 have to say is I'm a lawyer going to the States on
6 business; and, bang, I just go right through.
7 We don't worry a whole heck of a lot about it
8 as long as we have the sense -- and we always have the
9 sense because we don't get the complaints. This is not
10 where our complaints come from. We don't get
11 complaints from oil companies saying that some lawyer
12 from Texas came up and gave him bad advice.
13 The complaints are local lawyers practicing
14 improperly. So they come and they go, particularly in
15 the oil. There's a tremendous amount between Calgary,
16 Houston, and Dallas. We don't worry a whole heck of a
17 lot about it.
18 MR. DIMOND: I want to get back to the issue
19 that exists about discipline. And you said that if
20 there's disciplinary proceedings in one province, it
21 would be a recommendation to another province that what
22 we would do in our province is such and such, and we
23 recommend that you consider doing or taking this action
24 this way.
25 MR. MCLAUGHLIN: Let me give you the details.
26 The host governing body will assume
27 responsibility for the proceedings, unless the
28 governing bodies agree to (inaudible) the contract.
Peterson & Associates Court Reporting, Inc. 46
1 Okay? Second is the sanctions available to a host
2 governing body to reprimand costs for both temporary or
3 permanent prohibition of practice in the host territory
4 include a declaration that the lawyer would have been
5 suspended, restricted, or disbarred if he or she met
6 one of those factors.
7 When such a declaration is made, the home
8 governing body must take disciplinary action and may
9 impose any penalty it considers appropriate.
10 MR. DIMOND: They have to accept a finding of
11 guilt, but they can change the recommendation and come
12 to a different conclusion?
13 MR. MCLAUGHLIN: In addition, the home
14 governing body will maintain original jurisdiction over
15 its attorneys for their contract and other provinces
16 notwithstanding any discipline by the host governing
17 body. So there's kind of a double territory, and I
18 don't know if that would call for anything
19 constitutional, but that's what it says.
20 MR. DIMOND: Thank you.
21 MR. POSITAN: Any further questions?
22 Mr. McLaughlin, thanks again. We look for
23 your attack on this problem.
24 MR. MCLAUGHLIN: One more point. There's a
25 danger here that would boil the ocean if we try to
26 solve the whole problem for the whole country. I think
27 that one of the things I think you may want to consider
28 is whether there should be a growth of the reciprocal
Peterson & Associates Court Reporting, Inc. 47
1 protocols in areas maybe -- I don't know how that would
2 break down. And you might say, well, that would end up
3 on a patchwork thing, but my piece of the patchwork
4 would be bigger than the patchwork that you have now.
5 It may then grow larger and larger.
6 MR. POSITAN: That's perhaps why we're so
7 intrigued by your protocol.
8 MR. DIMOND: Mr. Chairman, it's my personal
9 privilege that I would just like to recognize that
10 Terry Russell, who is the president-elect of the
11 Florida Bar, has joined us. Thank you very much.
12 MR. POSITAN: We welcome you. We would also
13 like to recognize former president (inaudible).
14 I'm advised the court reporter needs a break.
15 (Recess taken)
16 MR. POSITAN: We'd like next to call Joseph
18 One thing I would like to emphasize as a
19 result of the very vigorous questioning that we had at
20 the beginning, as I said at the outset, this Commission
21 has made no decision about anything yet. Obviously,
22 we're engaged in a great dialogue.
23 As lawyers, we tend to ask pointed questions,
24 and we've all read the materials and asked these
25 questions, as you've heard. Please don't interpret any
26 particular question as being any position of the
27 Commission or any indication as to where we stand on
28 every issue or any issue, but rather things that we
Peterson & Associates Court Reporting, Inc. 48
1 have, in fact, discussed just in terms of the various
3 I don't want anybody to think that, for
4 example, my questions of the ACCA representative that I
5 was taking any position as to anything he said. I
6 think it's important that we on a personal level
7 explore things that have occurred to us as we have read
8 the materials, and I'm sure that that's what the rest
9 of us were doing as well. Please don't draw any
10 conclusions from any particular question.
11 Mr. Giannini?
12 MR. GIANNINI: Good morning. Good morning.
13 My name is Joseph Giannini. I'm an attorney in
14 Pennsylvania and New Jersey. I've had the opportunity
15 to study these issues that the Board is confronting now
16 as a result of lawsuits that I've filed challenging
17 restrictive rules for myself and for others; and as a
18 result of having studied these issues, I have some
19 familiarity with it. Of course, everyone in this town
21 I have looked at it in a different light. My
22 thought is that -- I have two recommendations I would
23 ask this task force to conclude. The first is that if
24 an attorney practices law in another state for an
25 interim basis, that he is not committing any crime and
26 he's entitled to his fee.
27 The second proposal that I'd like to endorse
28 is that I think that an attorney who is experienced in
Peterson & Associates Court Reporting, Inc. 49
1 one jurisdiction and for some reason gets a job, his
2 wife gets transferred, has some reason to go to another
3 state, he should be entitled to some form of
4 reciprocity, some form of admission. He should not
5 have to reinvent the wheel.
6 The reason I say this is, we learn how to be
7 lawyers from being lawyers, from experience; actually,
8 the best teacher that we have is experience. My
9 thought, first of all, is that to presume that an
10 attorney that practices in another state on an interim
11 basis is doing something improper is without any
12 factual foundation.
13 Most attorneys are ethical. They're
14 competent. They have pride in themselves and in their
15 work, and they do what they do because they're good at
16 it. They like it, and they enjoy it. Now, obviously
17 some people don't fit into that category; but I would
18 say in today's society in the interim with cell phones
19 and everything else that we have available to us as
20 practitioners, it's is ludicrous to suggest that we
21 would violate our client's rights and our own ethical
22 obligations in representing someone else in another
23 jurisdiction, and it just does not make sense.
24 MR. POSITAN: I think we've read your remarks.
25 They're well-constructed obviously. Do you have
26 anything in addition to add to that?
27 MR. GIANNINI: Yes, I do. That's the first
28 one. The second point that I would like to make is
Peterson & Associates Court Reporting, Inc. 50
1 that I think this task force should evaluate the issues
2 that we're talking about in view of our history as a
3 nation with a commitment to First Amendment free speech
4 rights, advocacy, association with our clients, the
5 Constitutional right to petition for grievances. These
6 are all birth rights. These are all very important
8 I think that the client should be able to
9 choose who he wants to represent him as long as that
10 person has already been admitted to the bar and has
11 experience. Actually, when you have a very important
12 matter and you have decent counsel, your lawyer is as
13 important to you as anybody else in your life: As your
14 wife, as your doctor, as anything. This is a
15 confidential, close, intimate relationship that
16 deserves to be honored.
17 MR. POSITAN: We appreciate everything you
18 said and certainly your remarks. As I indicated, we
19 are going -- would you like a glass of water?
20 MR. GIANNINI: Yes, please.
21 MR. POSITAN: All of the materials are going
22 to be for the record. Here you go.
23 MR. GIANNINI: Thank you, sir.
24 MR. POSITAN: So that, in essence, is your
26 MR. GIANNINI: Can I just finish?
27 MR. POSITAN: Certainly.
28 MR. GIANNINI: The other thing is that every
Peterson & Associates Court Reporting, Inc. 51
1 other professions has reciprocity available to them.
2 Doctors get it, dentists, chiropractors. We're the
3 only profession that hasn't come in line with the
4 21st century. We need to get in line with the 21st
5 century. American citizens need it. Businesses need
6 it. We need to take these steps so that people can
7 choose who they want to represent them.
8 Now, some of the people in this town -- I
9 don't know -- in this room have their clients. There
10 are other Americans that these people, that you people,
11 would not want to represent. These people are entitled
12 to representation.
13 I know, for example, a number of black
14 attorneys in California that are licensed in other
15 states, and they cannot practice their profession here
16 in California -- there is a demand for their services.
17 And these are honorable people, and they
18 cannot represent them. Essentially, that doesn't make
19 sense. And these are the reasons I ask the panel to
20 look into that.
21 MR. POSITAN: Well, we certainly appreciate
22 your input.
23 Any questions?
24 Thank you, Mr. Giannini.
25 As part of our custom, I would like to
26 acknowledge the president of the New Jersey State Bar
27 Association -- Barry Epstein is here -- and former
28 president, Edward Kallgren, of the Senior Lawyers
Peterson & Associates Court Reporting, Inc. 52
1 Division, and I certainly want to thank you for your
2 efforts in bringing to the forefront the need for this
3 commission and additional time to make deliberations
4 and study.
5 MR. KALLGREN: Thank you, Mr. Chairman. I'm
6 happy to be here. I signed up to speak primarily to
7 address that issue at a time when it wasn't clear what
8 was going to happen. As of now, I'm told that the
9 Board of Governors, as we sit here, is sitting across
10 the street and is probably going to be extending your
11 life. If it doesn't, Seniors Lawyers has a law before
12 the House of Delegates that would accomplish that end;
13 and we'll proceed with that. I think all of us have
14 agreed as we thought about it that an additional year
15 is necessary to get the kind of input and deal with the
16 issue before you.
17 While I'm here -- and I'll be very brief
18 because I know you're behind -- I just want to make one
19 more point which I'm confident with the quality of this
20 Commission probably doesn't need to be made, but I
21 think, for the record, I'm going to make it anyhow; and
22 that is this: In my view, the rules of professional
23 conduct, the rules governing lawyers, exist primarily,
24 if not totally, to protect the public and to ensure the
25 proper administration of justice, the justice system.
26 All rules that we have and all rules that are
27 considered by you folks should be tested, I think,
28 against those two propositions.
Peterson & Associates Court Reporting, Inc. 53
1 If a rule does not satisfy one or both of
2 those to a reasonably necessary degree, then it
3 shouldn't exist. We shouldn't change rules for the
4 convenience of lawyers who want to practice in terms of
5 modern times and modern communications simply to
6 accommodate those factors if those rules are still
7 necessary to protect the public and to preserve the
8 administration of justice.
9 In this regard, I urge you because I think
10 most of the people you're going to hear from -- maybe
11 I'll be wrong -- but I think most of the people that
12 will voluntarily come forward are going to be people
13 with an ax to grind, that want to change, ask for
14 specific recommendations, they want you to modify this,
15 change that, create a safe harbor.
16 I urge you to go out and make sure you hear
17 from disciplinary lawyers, the lawyers who are in the
18 trenches that deal with protecting the public, who see
19 what happens, and see what the wrongs are so that you
20 don't make changes which will inadvertently cause these
21 bad results to be increased or to be exacerbated.
22 That's all I would have to say here. The
23 Senior Lawyers is going to continue to follow this, and
24 if we have something more substantive to offer, we will
25 do that. Thank you very much.
26 MR. POSITAN: Any questions?
27 Thank you, Mr. Kallgren.
28 Amy Cashore on the YLD Special Committee on
Peterson & Associates Court Reporting, Inc. 54
1 the Future of the Profession.
2 MS. CASHORE: Thank you. First of all, I
3 would like to thank the Commission for allowing the
4 Young Lawyers Commission to have a voice here today at
5 your public hearing.
6 We want to, first of all, offer our support to
7 your endeavors in any respect. If we can be of
8 assistance, please let us know. We are a couple of
9 steps behind the Commission in studying this issue
10 ourselves. We believe that there are some unique
11 aspects to the Commission's work and to our Committee's
12 work which pertain to the young lawyers. We'd like to
13 assist the commission in looking at those issues in
15 For example, young lawyers happen to be the
16 primary source of in-house lawyers for the dot-com
17 industry. Young lawyers also happen to be the primary
18 source of military attorneys. As a result, there are
19 specialized needs and interests of young lawyers that
20 need to be addressed by way of a recommendation that
21 this Commission makes to the House of Delegates.
22 We are in, as I said, the early stages of our
23 process. We are just beginning to study the issue. We
24 are in an informal fact-gathering stage and hope to
25 present recommendations to the assembly next year at
26 our meeting. That is our goal and our plan, assuming
27 that the timetable is extended for your work as well.
28 We would hope as well.
Peterson & Associates Court Reporting, Inc. 55
1 At this time we feel that if the Commission
2 has any questions for me, if the Commission has
3 questions about what work we are undertaking, or what
4 we would like to be doing in the future, I would be
5 happy to entertain.
6 MR. GILLERS: I would like to know what you're
7 working on. I'm especially curious if it contains any
8 miracle investigation.
9 MS. CASHORE: We are, at this time, in an
10 informal fact-gathering stage. What we are doing for
11 our upcoming meetings in Anchorage and in Chicago is
12 planning on having roundtables with open discussion
13 forums with young lawyers, first of all, to educate
14 them about the issue of multidisciplinary practice,
15 because unfortunately many attorneys don't know at this
16 point in time what the effects are of this Commission's
17 work on them are.
18 So we're hoping to educate the public, first
19 of all. We found that studies, such as surveys and the
20 like, tend not to be very successful because of low
21 return rates. What we generally found to be successful
22 in the Young Lawyers Division is with a personal
23 connection: Sit down, have a cup of coffee with
24 people, talk about the issues, and figure out what
25 people are interested in.
26 So what we're doing is trying to get as many
27 people as possible to the meetings in Anchorage and in
28 Chicago for precisely that purpose, and we're hoping
Peterson & Associates Court Reporting, Inc. 56
1 also to have a town meeting type of thing in Chicago.
2 MS. NIRO: As a recent president of the State
3 Bar Association, I am very grateful for the
4 participation of young lawyers with heightened
5 awareness of how energetic recruits are. I suppose my
6 only -- it's not a question. It's a statement. It
7 would be wise, if you have not done it, to contact all
8 of the Young Lawyer Divisions of the state bars to the
9 extent they exist, because you could indeed get a much
10 broader participation in your decision-making; and I
11 will personally -- and I am sure I speak for the
12 Commission -- very much look forward to hearing the
13 results of your board.
14 MS. CASHORE: Thank you. We are actually in
15 the process of consulting with district representatives
16 of various states and local affiliates to see if they
17 have any information on the subject. First of all, if
18 they don't have any information on the subject, we're
19 attempting to provide them information and to provide
20 it at the state level as well as the national level.
21 MR. DIMOND: Let me just add that -- assuming
22 we're extended, which I believe we're going to be --
23 MS. CASHORE: Knock on wood.
24 MR. DIMOND: -- we'll be looking for
25 recommendations by fall. So since we value your input
26 very much, you will need to move the process to a point
27 where your discussions turn into actual suggestions,
28 recommendations, or comments probably in October.
Peterson & Associates Court Reporting, Inc. 57
1 MR. POSITAN: Now, as people who are most
2 recently experienced in the world of taking the bar
3 examination, that certainly is one subject that we're
4 very interested in, as well as accreditation of law
5 schools and ABA credit or not; and those are issues
6 that need to be dealt with, and certainly your input
7 will be helpful.
8 MR. MCCALLUM: Let me ask a question about a
9 very interesting topic. I don't think we've hit it
10 with anybody, and that's the question of the military
11 lawyer, the thinking about that. In the first instance
12 you might say, is this comparable to the employed
13 attorney that's employed by a corporation, or are you
14 like any other government attorney employed by a single
15 client? But is there a difference in that the military
16 lawyer not only is employed by the government but
17 sometimes acts for individual members of the military?
18 Is that the distinction?
19 MS. CASHORE: That's the primary distinction
20 that we see between military service and other
21 governmental service, because an attorney may be
22 licensed in the District of Columbia, be stationed here
23 in California, and be asked to provide probate advice,
24 tort advice, to a member of the military services here
25 in California.
26 MR. MCCALLUM: It would seem to be -- it's
27 very helpful to hear from you, but perhaps one thing
28 you could do is talk to judge advocates to consider the
Peterson & Associates Court Reporting, Inc. 58
1 question and to let us know their views on this topic,
2 because it really poses a real unique situation.
3 MS. CASHORE: It does. Thank you.
4 MR. POSITAN: We'll be hearing on that.
5 MR. MCCALLUM: On that topic? Great.
6 MR. POSITAN: Any further questions?
7 Thank you so much for coming.
8 MS. CASHORE: Thank you for your time.
9 MR. POSITAN: Craig Landy, president of the
10 New York County Lawyers Association.
11 MR. LANDY: Good morning. Thank you on behalf
12 of our 9,000 members of the County Lawyers. Thank you
13 for the opportunity to address you here this morning.
14 Principally, we practice in Manhattan which
15 includes solo practitioners and lawyers from firms as
16 well as lawyers with large and often multi-office firms
17 with practices in the national and international scope.
18 We include litigation lawyers, transactional lawyers,
19 government lawyers, judges, practitioners,
20 administrative law, and a host of other specialties.
21 We are told that New York is the commercial
22 capital of the world, yet our members face the
23 challenge of practicing law in an increasingly global
24 economy bound by outdated ethical and disciplinary
25 rules governing the unauthorized practice of law.
26 Those rules bar a lawyer, as New York Lawyers Code of
27 Professional Responsibility puts it, from, quote,
28 Practicing law in a jurisdiction where to do so would
Peterson & Associates Court Reporting, Inc. 59
1 be in violation of regulations of the profession in
2 that jurisdiction, closed quote.
3 How do these norms square with common
4 practices of lawyers with which we are all familiar?
5 What is one to think of a lawyer admitted only in New
6 York who occasionally goes elsewhere or the lawyer
7 admitted in another state who from time to time comes
8 to New York to take a deposition, to interview a
9 witness, to inspect documents, or negotiate a contract,
10 a case settlement? Arguably, cross-border activity of
11 this kind is illegal and contrary to our ethical codes,
12 but nevertheless it goes on.
13 The principal justification given for tight
14 restraints on who may practice law is the desire to
15 protect the clients and the public from unwitting
16 exposure from untrained or minimally qualified counsel.
17 There is also present, subliminally, an element of
18 guild protectionism.
19 Our association has concluded, as has the
20 Ethics 2000 Commission, that the regulatory systems in
21 force in New York and the country, which tend to break
22 the practice of law into a series of rigid statewide
23 boxes, are not well-suited to the dynamics of modern
24 practice of law. In short, reform is needed now.
25 Our members experienced problems and shared
26 their concerns that led to the formation of this
27 commission. We welcome your addressing issues of
28 multijurisdictional practice and have submitted, for
Peterson & Associates Court Reporting, Inc. 60
1 your consideration in advance to this hearing, our
2 written comments.
3 I do not wish to repeat that report, but I
4 would like to invite your attention to some of the more
5 important points it suggests. With that in mind, just
6 let me briefly identify the two areas where in our view
7 some attention to the presently proposed Rules 5.5 and
8 8.5 would be in order.
9 First, there's Rule 5.5. Consider the
10 following scenario: A California lawyer is admitted
11 before a federal agency in the District of Columbia and
12 wishes to depose a witness in New York where she is not
13 admitted. With respect to New York, what safe harbor
14 applies? Arguably not Rule 5.5(b)(1), which covers the
15 lawyer who is authorized to appear before a tribunal,
16 quote, in this jurisdiction, closed quote, because the
17 tribunal is located in D.C., not in New York.
18 Perhaps the topics we need to have clarified
19 are that of pre-filing activities and litigators in
20 jurisdictions outside the venue of the tribunal that
21 fall within the safe harbor provisions of subsection
23 As to the proposed provision to Rule 8.5, the
24 New York County Lawyers is in general accord with the
25 Commission's approach here too. We suggest, however, a
26 caution as to the possibility under Clause (b)(2) of
27 multiple assertions of disciplinary jurisdiction for a
28 lawyer admitted in one state who ventures into another
Peterson & Associates Court Reporting, Inc. 61
1 state into one of the safe harbors. The jurisdiction
2 should, of course, be able to protect clients deserving
3 of its protection; but these are limited, we think, to
4 clients having residence in or a substantial presence
5 in that state.
6 MS. NIRO: I wonder if I could ask you a
7 question about that. In your written papers you called
8 it two bites of the apple with regard to disciplining
9 lawyers. What if this is harm in both places of that
11 MR. LANDY: If the client is in the state
12 where (inaudible) out-of-state state and there is an
13 interest in that state that's connected to some
14 realistic basis much like subject matter jurisdiction
15 in a normal litigation, then, of course, the answer is
16 two bites of the apple were not opposed to the concept
17 of it.
18 The caution is, suppose you have a New York
19 lawyer representing a New York client. The New York
20 lawyer travels up to Boston for negotiation of a
21 contract, comes back to New York. Should that lawyer
22 be -- the New York lawyer -- be expected to be called
23 into a Massachusetts disciplinary proceeding because of
24 that activity? We suggest that the answer there would
25 be no.
26 I can't think of a scenario in which it would
27 arise -- usually the disciplinary proceedings generally
28 spring from a client's unhappiness with the
Peterson & Associates Court Reporting, Inc. 62
1 relationship with the lawyer, but presumably it could.
2 And the suggestion is that we be careful about
3 expanding this double jurisdiction and limit it as we
4 do in our normal course and similar practice to
5 activities of a lawyer that have real reason for being
6 protected by the host jurisdiction.
7 MS. NIRO: With all due respect, I can imagine
8 any number of scenarios where there would be behavior
9 that has impact on not just the parties but the
10 citizens of two states in which a traveling lawyer is
11 doing business perhaps even more. I'm wondering how we
12 could ignore it in two or three other states and seek
13 to prosecute that attorney under the disciplinary
14 scheme of his home state?
15 MR. LANDY: Well, perhaps the solution is not
16 to just limit it to where a state has some real
17 connection with a client, the lawyer's client; but I
18 suppose that the devil is in the details. The
19 suggestion is that we don't throw the doors open any
20 time any lawyer enters into a foreign state that that
21 automatically triggers the disciplinary authority
22 powers over that particular lawyer.
23 Now, if that's an easy solution, I don't think
24 that it supports the purpose -- at least the expressed
25 purpose of 8.5, which is to protect the client. Now,
26 maybe that -- we want to change 8.5 to say that the
27 rule has other purposes. But as it's presently
28 written, the first comment I believe 8.5 says is that
Peterson & Associates Court Reporting, Inc. 63
1 the rule's purpose is to protect the clients; and if
2 that's the case, that's the premise, then this
3 suggestion goes too far by sweeping in the New York
4 lawyer in that particular example.
5 MR. POSITAN: In our hearings in Dallas,
6 someone from Georgia expressed concern over what
7 discipline would exist for somebody who came from,
8 let's say, the State of Idaho -- I think was the
9 example he used -- and engaged in some transaction in
10 Georgia and ran afoul with the rules in Georgia and at
11 that point some disciplinary action was necessary.
12 The question that was raised was, how would
13 that work? What would we know in Georgia in terms of
14 how this person would be handled if he did something
15 down here in the way of a disciplinary procedure, what
16 would they do in Idaho? Would they care?
17 We're getting to notions of full faith and
18 credit and should they be disciplining in Georgia? In
19 other words, Georgia -- this person obviously doesn't
20 represent the views of Georgia or the Georgia Bar --
21 but the question was, "Well, will people really care in
22 the home state?" Let's assume that it's not a
23 contiguous state. Let's assume a New York lawyer went
24 down to Georgia and did something that made a problem.
25 What would New York do?
26 We've had situations in New Jersey with the
27 Benedetto case in South Carolina. So Georgia says we
28 don't like what this person did down here, and they say
Peterson & Associates Court Reporting, Inc. 64
1 we want to do something about it. How is that going to
2 work? Is he going to be the subject of procedures down
3 here? We'll have to do something. What happens when
4 he goes to New York? Are we going to write a letter to
5 the New York Bar? Are they going to care up there?
6 How do you conceptualize that situation being
7 dealt with, assuming it wasn't something that was a
8 little minutia, but some big problem arose with the
9 New York attorney, some deal that he or she was working
10 on? Do you know in Georgia what happens?
11 MR. LANDY: Well, let me just preface it by
12 saying that if the lawyer was representing a Georgia
13 client, then I think Georgia can fight fully to take on
14 disciplinary proceedings in Georgia, and I think that
15 the New York departmental disciplinary committees -- in
16 New York it is set up by the judicial department.
17 There are four judicial departments in the state of New
19 And wherever the home department is of that
20 particular lawyer, I think the appropriate procedure
21 would be for the Georgia disciplinary authorities to
22 contact the DDC in New York, for example, to report the
23 malfeasance or whatever sanction that they had sought
24 to impose; and I think the experience is that, at least
25 in New York, that those types of reaching out aren't
26 quite acceptable.
27 MR. POSITAN: But the concern expressed was
28 what if the people in Georgia said this person should
Peterson & Associates Court Reporting, Inc. 65
1 be suspended or disbarred, and when he gets back to New
2 York, he gets referred up. And they say, "That was
3 bad. Don't do it again. We're not going to take any
4 further action than that."
5 MR. LANDY: I think short of a uniform
6 national system, you're going to have that.
7 MR. GILLERS: Does it have to be a national
8 system? What if Georgia and New York agree that in
9 exchange for the right of New York lawyers to go into
10 Georgia and practice a particular specialty, New York
11 will give them credit to the Georgia discipline.
12 MR. LANDY: I think that certainly is a
13 measure that does not go to the full requirement of a
14 national registration; but it gets you to the same
15 spot, whether it's full faith or expedition treaties
16 among countries. It's been known that independent
17 entities, so to speak, agree that they will be bound by
18 the authority of one or the another. Then that's a
20 We would in New York need to be sure that the
21 lawyers who are being disciplined in Georgia were being
22 done -- that was being done with whatever due process
23 would be minimally required under the circumstances.
24 And I think --
25 MR. POSITAN: What if it's a result that
26 wouldn't be what you think would be right? I mean, the
27 New York people -- would a New York attorney really
28 want to sign on to that, thinking that some rural
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1 county in Georgia -- they may get some justice that
2 they think would be in New York, that they would be
3 willing to buy into that?
4 MR. LANDY: Well, again, I think that goes
5 back to our original premise here. If it's a Georgia
6 client that the lawyer is representing, I think you're
7 in for a penny or you're in for a pound. What we flag
8 is where the New York lawyer goes down to Georgia
9 representing a New York client and then finds himself
10 in a suit. That's really a great concern.
11 I think what this Commission can do is try to
12 address that by setting the boundaries. Now, I'm not
13 saying that it's only if you represent a client or the
14 client has a substantial contact or a commissioner
15 points out that there may be other legitimate concerns
16 that the state of Georgia may have as to that
17 lawyer's -- but they were all to be spelled out. What
18 we shouldn't do is say in comment that the reason we
19 are doing this is to protect the client in 8.5 and then
20 turn around and throw the door open to the New York
21 lawyer being disciplined for anything and for things
22 that don't have to do with the client.
23 MR. POSITAN: Isn't it broader than the client
24 in terms of the public interest, as I questioned the
25 ACCA? Let's assume that you give us (inaudible) and
26 the effect is that this whole thing closes you down
27 because of some environmental problem; that can have an
28 effect on somebody much bigger than my client.
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1 MR. LANDY: Sure. Again, I'm not quarrelling
2 with the notion that we might expand the scope of who's
3 being protected; but if you're going to do that, you
4 have to change the language of 8.5, and you have to
5 change its direction.
6 But I think as you do that, you start to skate
7 on a little thinner ice as to who's going to decide
8 what is in the public interest so that the out-of-state
9 lawyer comes within the grip of the host state's
10 disciplinary authorities. The "bright line" test would
11 be client or substantial presence in the state. It
12 becomes a little murkier once you go outside of that.
13 MR. EHRENHART: Mr. Landy, in other areas of
14 our law, we adopted concepts such as purposeful
15 availment of the opportunity to do business in other
16 states, sending goods and so on to another state. Why
17 can't we use the same principles for services? Yet we
18 have a lawyer who has to go to Florida or to Georgia in
19 our example -- in essence, if he believes that that is
20 a necessary part of his business, that is the risk that
21 he assumes, that he is going to be in another state.
22 If that is part of his business, if he wants
23 to do that business, he's got to assume the risk that
24 the local laws will apply to him. I would think that
25 most lawyers who indeed have occasion and necessity for
26 traveling to another jurisdiction assume that risk
28 MR. LANDY: As a civil litigator wearing my
Peterson & Associates Court Reporting, Inc. 68
1 civil litigator hat, I can tell you that the case books
2 are full of cases talking about where that line is. If
3 you advertise, is that enough? Professor Gillers made
4 the comment before that just advertising on the
5 Internet, does that -- if you do a lot of it, does that
6 put you within the reach of the jurisdiction of
7 somebody who reads that on a personal computer? It's a
8 hornet's nest.
9 While you may be able to write those words, I
10 think it's shortsighted to think that's going to solve
11 the problems. I think what you're going to do is open
12 up another series of case books that talk about what is
13 the minimum contact that a lawyer would need to engage
14 in. I don't think that it's simply by hopping on a
15 plane and going to the state of Georgia to look at a
16 document or close a deal.
17 I don't think most lawyers would believe that
18 that is enough to put them within the reach of the
19 Georgia disciplinary authority; and if that's the case,
20 then we've got a real disconnect here.
21 MR. DIMOND: That's what we're focusing on.
22 If you do draw that line, are the lawyers in New York
23 going to accept the concept that when they cross that
24 line in Georgia and go into that rural community, they
25 are putting their New York license at risk, and is that
26 something that's tactical; or should we just say the
27 New York lawyers aren't going to accept that any more
28 than the Georgia lawyers are going to accept the
Peterson & Associates Court Reporting, Inc. 69
1 reverse of that? 2 MR. LANDY: I think the New York lawyers would
3 accept something closer to a bright line where you
4 could take a book off the shelf and see in advance
5 whether you are risking that potential headache. If
6 you just write the words and they are murky, I think
7 you're going to run into resistance because people --
8 you're going to be right where you are now. You're
9 going to be no better off. People are going to take
10 the position that they can do it, or it doesn't mean
11 that, or I don't believe that that's what anybody would
12 have intended.
13 MR. DIMOND: Let me deal with something that
14 you and I and civil trial lawyers deal with all the
15 time. You go out of state to take depositions. You
16 take a deposition. There's a dispute at the depo.
17 It's a heated deposition. Would you feel that you
18 should be subject to the analysis of the state bar in
19 which the deposition is taken, or are you not
20 practicing law yet out of state?
21 MR. LANDY: I don't believe that you're
22 practicing law out of state. I think you are still
23 within the umbrella of the home state of the case where
24 it's been filed, certainly in the federal court. If
25 you were to look into the federal jurisdiction, that
26 would be what I would -- that would be the position I
27 would take.
28 If I had trouble during that deposition, I
Peterson & Associates Court Reporting, Inc. 70
1 wouldn't call the magistrate in the District of Rhode
2 Island. I would get on the phone and call the
3 magistrate for the Eastern District of New York.
4 MR. EHRENHART: As a function of the rules of
5 civil procedure adopted that a civil magistrate will
6 take jurisdiction and will give you that kind of
7 guidance, so as far as you being abusive of a local
8 citizen, we want protection from your doing that. Our
9 courts will prevent you from doing that. I don't
10 really see why a local citizen can't turn to the
11 Georgia courts. That's the risk you could take.
12 MR. LANDY: Again, that goes back to what we
13 were addressing before. I don't have a problem with
14 your saying that where the lawyer represents a client
15 in Georgia, there is some substantial connection; but
16 my respectful suggestion is you have got to start out.
17 You can't just leave it murky. Because with the debate
18 we're having here this morning, it will end up all
19 throughout the country.
20 MR. POSITAN: Once again, we need to move the
21 agenda. And I'll repeat, again, for anyone who has
22 just joined us, there will be roundtable discussions
23 this afternoon from 2:00 to 5:00, and you're welcome to
24 participate in that as well. We'll obviously get back
25 into these same issues.
26 I next call William Barker, International
27 Association of Defense Counsel.
28 MR. BARKER: Good morning. We very much
Peterson & Associates Court Reporting, Inc. 71
1 appreciate the opportunity to be here, and also we very
2 much appreciate the work that this Commission is doing.
3 It's a problem that is fundamental to moving the bar
4 forward in the union sanctuary, and we are extremely
5 pleased that the ABA is taking a lead on this.
6 The proposal that you have before you is by
7 the International Association of Defense Counsel. As
8 of this morning, it is also supported by the Tort and
9 Insurance Practice Section, certain sections with
10 preservations, which I will communicate through the
11 course of the presentation.
12 MR. POSITAN: You mean, the section litigation
13 as well?
14 MR. BARKER: The answer is, that is correct.
15 I mean, I have not -- basically, I have not been aware
16 of exactly who are the right people --
17 MR. POSITAN: Up until last Friday it was me.
18 MR. BARKER: Apparently it was you, but I
19 assume you brought it to the attention of the
20 appropriate people, and we would much like to work with
22 MR. POSITAN: I also want to compliment you on
23 the effort that you made in addressing the model
24 proposal that you have made. It is very much similar
25 to what the litigation board has been reviewing.
26 MR. BARKER: Excellent. Excellent.
27 As we said in our prepared statement, we
28 support changes in the applicable rules that they find
Peterson & Associates Court Reporting, Inc. 72
1 most suited on other matters, but we recognize that the
2 far-reaching reforms will require adjustments in the
3 regulatory mechanisms.
4 Some of it I was just hearing discussed.
5 Professor Gillers has suggested the possibility of
6 agreements between states. There are a variety of
7 other things. I know April is going to be here
8 tomorrow with a proposal for legal green cards. There
9 are a lot of ramifications to those issues; and a lot
10 of them, for example, depend on -- you said one of the
11 questions that arose, well, what will the New York Bar
12 Council do when they get this Georgia record?
13 Well, my answer is, beats the hell out of me;
14 let's ask the bar council. But it seems to me that
15 there are a lot of those details that need to be worked
16 out, especially when you're dealing with transactional
18 I know the bar council is saying, Gee, we are
19 worried about having lawyers coming into our state that
20 we don't even know they're there. We don't even know
21 what they are doing, and they're not contributing to
22 the support of the regulatory, and we don't have any
23 money to discipline them.
24 So there are concerns there. We do not know
25 how serious those concerns are, but we know enough that
26 they need to be addressed before far-reaching reforms
27 are done that will facilitate transactional practice.
28 Our thought, however, is that there are more
Peterson & Associates Court Reporting, Inc. 73
1 modest things that can be done immediately, and pro hac
2 vice practice appears to us to be a good candidate for
3 that because there is a well-recognized and
4 well-working regulatory structure already in place with
5 the form of the admitting court, which also has
6 contempt powers and with modest revisions of the sort
7 that we suggest one can make that practice more uniform
8 and also set some precedence that we hope will prove
9 fruitful with transactional practice.
10 MR. POSITAN: Let me ask you a question
11 following up on Commissioner Dimond's recent question.
12 Let's assume you have a piece of litigation that's
13 estate litigation. You require the commission to take
14 a deposition of an out-of-state witness in another
15 jurisdiction, and you go get that commission probably
16 by using local counsel in that other state; and during
17 the course of that deposition, you get into the heated
18 situation that he described, and I'll embellish it a
19 little bit farther.
20 Let's assume that the lawyer from the original
21 home state makes some discriminatory remark about the
22 witness, being in the field that I practice in, and
23 that witness gets very upset and wants to go file a
24 complaint somewhere. Where do you think it would
26 MR. BARKER: Well, our proposal would
27 recognize the disciplinary authority of the state in
28 which the conduct and particularly affected witness
Peterson & Associates Court Reporting, Inc. 74
1 lay. It may very well be that for a variety of reasons
2 it would be more efficient to conduct the proceeding in
3 the lawyer's home state.
4 On the other hand, the witness -- that will
5 not be convenient to the witness. And in principle our
6 proposal recognizes the authority of either state to
7 deal with that issue, and exactly how that would be
8 accomplished is between bar counsel.
9 Frankly, again, we are relatively ignorant in
10 the realm of knowledge of how disciplinary proceedings
11 are worked especially in these interstate contacts
12 where I suspect there is relatively low precedence,
13 although I was just informed a moment ago that in D.C.
14 about a third of the discipline imposed is reciprocal.
15 So there is a good deal of reciprocal discipline, but
16 that is in a more conventional context.
17 But the short answer is we would recognize the
18 disciplinary authority of either jurisdiction, and how
19 that might be best worked is really a matter the
20 disciplinary authorities ought to figure out.
21 MR. DIMOND: Mr. Barker, let me first commend
22 you on the good work that you did with regard to pro
23 hac admission standards. I can see that a lot of
24 thinking went into it. The penny-for-a-pound approach.
25 We're admitted. We're there for all purposes. The
26 rule goes on the -- process goes on to say the mission
27 shouldn't be used on a repetitive basis. How would you
28 define what is repetitive?
Peterson & Associates Court Reporting, Inc. 75
1 MR. BARKER: Well, we attempted to make some
2 standards that is a qualitative analysis, in
3 particular, if you're coming in -- you know, there's a
4 related set of litigations. We got asbestos cases all
5 over the state with an out-of-state client
6 (inaudible) -- especially if you're representing an
7 out-of-state client and you consider their proceedings
9 We require more replication before you start
10 seeing a problem. If they are related proceedings, you
11 require more. You can draw a line that says basically,
12 as I recall, five proceedings over the course of three
13 years is not too many, even if, in fact, they include
14 some of the ones that you put highest on the list of
15 what's repetition and looks like a lawyer's really
16 projecting himself into the local market.
17 So we try to specify some standards there. We
18 don't, in fact, try to draw right on because we think
19 the analysis needs to be qualitative. And, frankly, we
20 know that many states have some kind of standard.
21 Frequently those are bright lines. You can't do more
22 than three or whatever. Some states have a more
23 qualitative standard. I think that's a better way to
25 MR. DIMOND: Excuse me for one more question.
26 To draw this distinction between a lawyer and the law
28 MR. BARKER: The answer is what we did -- what
Peterson & Associates Court Reporting, Inc. 76
1 the lawyer has to file with the court to seek admission
2 is going to disclose what the lawyer did, and that's
3 the first thing the court looks at. We specifically
4 say, however, that the court may make inquiry about
5 other lawyers in the firm; and obviously if you've got
6 a large firm, what they're doing is rotating the
7 matters in the region that each of them is using their
8 three or five or whatever. That's troublesome. So the
9 courts would have the ability --
10 MR. DIMOND: There was a North Carolina case
11 that found fault with a Florida law firm that kept
12 sending different lawyers to the state of North
13 Carolina. Those were plaintiffs' lawyers handling
14 subtort claims, and North Carolina said that's the
15 practice of law in North Carolina.
16 MR. BARKER: And we would certainly say that
17 if that kind of pattern was shown, that would be
18 grounds for denying pro hac vice to a lawyer who's part
19 of that pattern.
20 Before I go on, I should explain what -- in
21 what ways the Tort and Insurance Practice Section is
22 not fully concurring with the proposal that's before
23 you. The primary concern is, among other things, to
24 address the specifics of the Birbrower problem.
25 We provide an ARIC proposal that provides a
26 system for pro hac vice admissions for arbitrations.
27 And while, in fact, California has in this instance
28 allowed the arbitrator to admit, we thought there might
Peterson & Associates Court Reporting, Inc. 77
1 be some sensitivity in letting private arbitrators in.
2 Maybe we ought to leave the authority of the court.
3 So we left the procedure for you. Go to court
4 and confirm the arbitration. The sense at TIPS was, in
5 essence, that Birbrower was such a strong-headed rule.
6 You shouldn't need to be admitted at all, and it was
7 going to gun up the arbitration. They were going to
8 take this out.
9 I think the sense of this would be if they
10 wanted to take it out, if they would want to provide --
11 you're taking it out because you don't need it, and
12 obviously because as far as I'm concerned I would be
13 very happy with that result. I seem to be very happy
14 with that result but only, in fact, if you knew what
15 you didn't need. If you might need it, I would rather
16 have a procedure available where any complication is
17 you can get it, but that's a major reservation that
18 TIPS had.
19 MR. POSITAN: They'll be forwarding us some
20 written documents.
21 MR. BARKER: That's an interesting question.
22 Probably there will be some written document prepared.
23 Well, as it happens, I'm also a member of the TIPS
24 professional committee, which also participated.
25 MR. EHRENHART: Mr. Barker, your comments, I
26 think, touch on important issues that we have been
27 debating and maybe you haven't thought about this, and
28 that is the question as to whether in addressing these
Peterson & Associates Court Reporting, Inc. 78
1 problems, we're better advised to have as a presumption
2 that you want to say that all practices are admitted
3 except for these following exceptions in which you have
4 a concern whether you're saying that all practices are
5 prohibited in these safe harbors that you think are
7 Or we have the latter approach which I think
8 tends to be perhaps descriptive and doesn't meet the
9 point. Because there are a lot of small areas that you
10 don't think about ahead of time, such as the one you
11 just talked about. If you focus on the one you want to
12 prevent, you might have a better chance of identifying
13 those correctly and subjectively to the apparent
15 MR. BARKER: I would say that in terms of a
16 long-term objective, I would be -- and I don't have any
17 authority to speak on behalf of either TIPS or the
18 ARIC, although I have a sense that both of them agree
19 with what I'm about to say. In terms of a long-term
20 prospective, we would prefer or I would prefer and I
21 think they would prefer a system that looked more to
22 focusing on what should be prohibited and leaving other
23 things free but within whatever regulatory structure
24 there needed to be.
25 As a short-term objective, however, and
26 without the ability necessarily to put an appropriate
27 regulatory structure in place immediately, it might
28 be -- I think it might be a worthwhile thing, and ARIC
Peterson & Associates Court Reporting, Inc. 79
1 and TIPS think it would being a worthwhile thing to
2 make movements in the direction of particularly
3 authorizing some things that seem relatively clearly
4 appropriate and moving and establishing some principles
5 that we think would move the law in this area, as I'm
6 sure you are all fully aware is rather parochial.
7 And one of the things that this proposal would
8 do would be to establish some principles that,
9 especially with the intermonitory (phonetic) of the
10 ABA, might start making that less and less parochial
11 even before states have adopted the modern rules. And
12 even beyond the scope of what the model rule -- where
13 the model rule is operative law, it would also
14 establish some principles which might have some
15 persuasive effect in other kinds of proceedings.
16 MS. NIRO: If I may, when you say there were
17 objections, I keyed on one part of your proposal that I
18 thought would be objected to from the people that I am
19 closest to, and that is coming from the state bar
20 presidency perspective. And that is that you talk
21 about contemplation of litigation and the definition,
22 if you will, of reasonably related.
23 Those would not be considered to be
24 unauthorized practice of law whether or not a lawsuit
25 was later filed. I think most of us can be quite
26 comfortable that in a reasonable situation,
27 "reasonable" is quite easy to define.
28 I think that a lot of people, however, that
Peterson & Associates Court Reporting, Inc. 80
1 contemplate abuse -- and I think my constituency would
2 be quite concerned that it is under these sorts of
3 specific articulations, if you will, that look so
4 reasonable but open the floodgates; and then they don't
5 have any measures if, in fact, we control them.
6 It seems to me that the abuser could come in
7 and out of any number of states and say, "Well, I
8 reasonably believed at the time I was going to file a
9 lawsuit." And he never did and he does a lot of law
10 practice that way.
11 MR. BARKER: Well, the first point to remember
12 is that insofar as it involves the perspective
13 representation of a local client, it will have to be
14 done in conjunction with local counsel, just as you
15 have to have local counsel at the point of action to
16 file a lawsuit.
17 MS. NIRO: Is that an intended check on this?
18 MR. BARKER: That is an intended check on
19 this. The point is if there is a local client, that
20 that client is going have a duly licensed local lawyer
21 to help protect that client and to ensure that the
22 client's interests are properly represented along with
23 whatever assistance that counsel may make and the
24 out-of-state lawyer may render.
25 MR. POSITAN: Would there be a prerequisite
26 for him doing anything in this state?
27 MR. BARKER: On behalf of a local counsel. In
28 order to use the "I reasonably expect to be admitted
Peterson & Associates Court Reporting, Inc. 81
1 pro hac vice with respect to this suit," you would have
2 to have -- you have to work in conjunction with
3 admitted local counsel.
4 MR. POSITAN: So you get that before you go
5 and investigate, and then you hook up with local
7 MR. BARKER: That's correct. The premise in
8 order to come into the state to deal with a perspective
9 client, you're going to have to be summoned by that
10 client. You can't go in and start soliciting. By the
11 way, if you're summoned by one client, that doesn't
12 mean you can solicit others.
13 So, therefore, you know that you need local
14 counsel, and the client ought to have local counsel.
15 The other -- obviously, if, in fact, what you're doing
16 is you're investigating on behalf of, for example, a
17 home state client with respect to a matter that will
18 have to be filed in another state, then you would not
19 have to associate with local counsel until the time you
20 get closer to your filing. As far as the local client
21 is concerned, you would need to have local counsel.
22 MR. MCCALLUM: That's even in the matter --
23 even if you don't know where the matter might be filed,
24 you're pretty sure one place it wouldn't be filed is
25 the host state. It will be filed in some other state
26 outside of the host state. You would still have to
27 have host state local counsel.
28 MR. BARKER: In essence, the premise --
Peterson & Associates Court Reporting, Inc. 82
1 assuming that you're going -- obviously, if you have
2 the client from the foreign state come to the counsel
3 in the home state to do the consultations, then you
4 wouldn't get into it. But assuming that counsel is
5 going to go meet with the client in the client's home
6 state, the host state, then in order to be able to use
7 the authority, there has to be counsel from the
8 client's home state, the host state, involved in that.
9 MR. MCCALLUM: Actually, I used the authority
10 of the -- actually, as I read it, unless I'm missing
11 it, you also have to reasonably be expected to be
12 admitted pro hac vice in the home state, but I'm
13 proposing a circumstance in which the action will be
14 filed someplace else.
15 MR. BARKER: All right. The answer is, I
16 hadn't thought of it. I have not thought to see
17 whether the language and the rule adequately
18 accommodates it. I think the intent in those
19 circumstances would be that that ought to be
20 authorized; but nonetheless, in essence, the lawyer is
21 punitively practicing law in the host state by going
22 there to consult with a client who lives there. And
23 even if they're talking about filing a lawsuit in State
24 3, I would think that you need authority from the host
25 state to be able to hold that consultation with the
26 clients. So thereafter --
27 MR. MCCALLUM: Would it be different if they
28 held the consultation in the third state?
Peterson & Associates Court Reporting, Inc. 83
1 MR. BARKER: Yes. In that case would you need
2 authority from that state, and then would you be
3 dealing with out-of-state clients, but then you
4 wouldn't need local counsel. But, in general, I don't
5 imagine that it's going to be the case, especially with
6 the most vulnerable class of clients, that the lawyer
7 is going to be meeting with them in a third state.
8 MR. POSITAN: One more question and then we're
9 going to have to move on.
10 MR. MCCALLUM: One other question on this
11 activity, and it is probably a picky little point.
12 Suppose that the lawyer who is in the host state doing
13 the investigating or the lawyers or associates of the
14 trial counsel who will actually later be admitted pro
15 hac vice, they never inform the state. Are they
16 conducting unauthorized practice of law?
17 MR. BARKER: I have a suspicion that if I go
18 back and look at the language -- I haven't covered that
19 situation. Now that you mention it, it seems obvious
20 that ought to be permitted, but I don't think that the
21 language --
22 MR. MCCALLUM: I don't think the language
23 reaches it.
24 MR. BARKER: I don't think it covers it.
25 MR. POSITAN: Mr. Barker, we thank you so much
26 for your opinions and look forward to your further
28 Next we call Dennis Stryker.
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1 MR. STRYKER: I'm Dennis Stryker. I'd like to
2 thank the Commission for allowing me to speak. I'm
3 here basically to speak here on behalf of lawyers who
4 have found themselves in situations that I have in the
5 past 18 years of my life as the general counsel for
6 Glen A. Rick Engineering, a company headquartered here
7 in San Diego.
8 I have practiced for over 18 years in both
9 private practice and in the legal department. I am
10 admitted to practice law in four jurisdictions:
11 California, Colorado, Arizona, and Nevada; and on March
12 9th, the fifth, District of Columbia. I am therefore a
13 survivor of three bar exams and recipient of
14 enlightened practice in two, Colorado and the District
15 of Columbia.
16 The world today is simply different. It's
17 been different for a long time. It's different from
18 the first day that I was admitted to practice in
19 California on December 12, 1983.
20 Technology has changed the world and has
21 changed the law with regard to the legal profession,
22 whether you want to acknowledge that or not.
23 Computers, laptops, wireless, palm pilots, you name it,
24 cell phones, now make it possible to literally be on
25 the beach in a small town called Punta Banco, Costa
26 Rica. Yes, the town exists. I've been there. I have
27 done this.
28 You can now contact your office, pick up your
Peterson & Associates Court Reporting, Inc. 85
1 voice mail, pick up your E-mail, respond to those
2 things that you need to respond to all by doing
3 whatever else it is that you do in the small town of
4 14 hamlets and 35 residents.
5 Today in my practice I deal with a tremendous
6 number of contract negotiations on behalf of my
7 clients. I participate in those 90 percent of the time
8 without ever having met the attorneys on the other side
9 representing the client and my client. 50 percent of
10 the time I have never spoken to them on the phone.
11 Everything has been done using the Internet, web
12 services, and software that enables us to literally be
13 on-line and discuss issues at the same time or make
14 changes to documents literally almost at the speed of
15 light, as fast as the speed you can have, however your
16 connection works.
17 The real world professionals and real world
18 scenarios now make it a requirement in the legal
19 profession to join the rest of the professions. The
20 profession I'm most associated with other than the
21 legal profession is the architects and engineers
22 profession. That is my chief client now.
23 AMEs for a long time have understood the
24 concept of reciprocity. You can be the first admitted
25 in the state of Maine for any reciprocity in the state
26 of New York to sign plans, design a building, to sign
27 and supervise a construction of a bridge. You could do
28 so from Arkansas to Oregon.
Peterson & Associates Court Reporting, Inc. 86
1 The law is simply behind those other
2 professionals, and it has and does hinder our clients,
3 whether they're talking about business clients or
4 private nonsector, nonbusiness clients.
5 Today engineers hop on laptops loaded with
6 their CAD software, go off to a site, design, redesign,
7 make changes to a bridge. That engineer, she may be
8 based in our San Diego office, and we have her working
9 in Colorado. The issue for her is not whether she's
10 based in San Diego or in Colorado but whether she's
11 licensed in Colorado to sign those plans.
12 MS. NIRO: We would agree that the practice of
13 law is different than building a bridge. A bridge
14 stands up and supports the traffic that goes over it or
15 it doesn't. I think perhaps we need to go beyond the
16 notion that the practice of law will vary dramatically,
17 don't we?
18 MR. POSITAN: The laws of physics are
19 universal. The laws of man are not.
20 MR. STRYKER: Ah, this is true. However, in
21 the practice of law and in the legal profession we have
22 in the form of universal codes, we have tons of uniform
23 laws, and they make changes to them. Interestingly,
24 when you practice engineering, you go from California
25 to Louisiana, and Louisiana has specified local
26 ordinances that must be applicable and must be applied
28 How is it that we allow engineers and
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1 architects to figure out what the law requires them to
2 do in Louisiana, yet those of us who are trained
3 lawyers, trained to think like a lawyer and to deal
4 with those issues are somehow told that once you cross
5 the California border, you no longer are able to figure
6 out the differences and distinctions in the law in
7 Louisiana or Georgia or Texas?
8 Why is it that we in our profession somehow
9 think that we're not capable of doing that which we as
10 lawyers have looked at, assisted other professions, and
11 acquiring to do that? We have to take a look at that.
12 MR. POSITAN: You're subject to a system of
13 justice and state components.
14 MR. STRYKER: You're subject to a system of
15 justice and state components whether you are an
16 architect or an engineer.
17 MR. DIMOND: You're going too far afield with
18 architects and engineering. Typically, when large
19 national engineering firms and architectural firms are
20 going to be doing a project locally, at any time they
21 have the representation to deal with those local
22 nuances that we have.
23 MR. STRYKER: Not if you have individuals on
24 your staff already licensed and familiar with those
25 other relations. It may be that they do. It depends
26 on how the project is designed, much like it depends on
27 how a client puts together his or her legal team. We
28 have seen a number of situations in various cases
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1 across the country where legal teams are comprised of
2 lawyers and law firms in a variety of states because of
3 the law firm and a particular lawyer from that law firm
4 and his or her specialty in willing to deal with
5 specific issues.
6 What sometimes could happen is even though you
7 may be able to put together that legal team to assist
8 you in a matter, in a similar-type circumstance -- this
9 is a big arena for these things to happen. If a
10 similar circumstance arises, the members of that legal
11 team may not be able to practice in the state where it
12 is because they're not admitted to practice there. And
13 no one on the design team is, quote, legal counsel,
14 closed quote, with regard to that jurisdiction.
15 Now, why is it that we in the legal profession
16 look out and say, you know, it's okay if you go to
17 Arizona or go to Nevada and you take the bar exam --
18 100 of us, 100,000 of us, 10,000 of us -- it makes no
19 difference to us. You pass the bar exam, and now we're
20 admitted to practice law. Yet we've been practicing
21 law for ten years in the state of New York, and it's
22 not okay to go in that state until you've taken the bar
24 Lots of reasons are placed upon us for that.
25 One, bar exams create minimum standards. Well, I would
26 submit that someone who has practiced law for ten years
27 has already figured it out. They have not had any
28 disciplinary action against them in the state of New
Peterson & Associates Court Reporting, Inc. 89
2 MR. POSITAN: What about the state supreme
3 court that says in order to practice here, you have to
4 have mandatory continuing legal education? They made a
5 determination, have they not, that it's in the interest
6 of the citizens, the state, and lawyers to have
7 continuing legal education? And, therefore, how can
8 you say that's national?
9 MR. STRYKER: California, Arizona, and
10 Colorado all have mandatory continuing education to
11 which I am subject to.
12 MR. POSITAN: Do architects and engineers have
13 similar things?
14 MR. STRYKER: Not all states at this point
15 have mandatory continuing education in the
16 architectural or in the new arena. However, a
17 significant number of states do.
18 MS. NIRO: I'm looking at my watch, and I am
19 realizing we have five more people to do, and I'm
20 wondering if you have a proposal that you could
21 articulate. You seem to have defined what you perceive
22 to be the problem. Do you have the answer?
23 MR. POSITAN: You didn't submit anything in
25 MR. STRYKER: I didn't. If you would like, I
26 could make a copy of my outline for you. I will tell
27 you very briefly my answer in a minute-or-two response
28 to the Commissioner's question.
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1 Yes. I think, number one, if you look at what
2 the District of Columbia or the state of Colorado and
3 some of the other states that allow for us to have
4 reciprocity, they have already put in place a system
5 that has, in fact, been working.
6 The District of Columbia, one of the more
7 liberal jurisdictions in the country, simply requires
8 that you practice for a specified number of years, have
9 no disciplinary issues with regard to your home state,
10 you have to disclose all the states of which you are
11 currently a member, and then you go through a
12 background check.
13 The problem I would suggest here with the
14 District of Columbia system is that it is notoriously
15 lengthy in time. I think that given the ability of
16 this commission to outline types of goals and types of
17 rules that deal with this issue, you could shorten
18 those factors very easily.
19 You could come up with a way of doing that as
20 a background check, keeping in mind also that I think
21 part of this issue is you need to look at the protocol
22 that jurisdictions currently use.
23 A friend of mine admitted to New York and New
24 Jersey recently was transferred by his business to
25 Virginia. The Virginia chief justice, because of a
26 letter issued through a protocol that the chief
27 justices have, was able to allow that person, after
28 spending three months worth of submittal and review, to
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1 practice law in the state of Virginia because the chief
2 justice for the court of appeals for the state of New
3 York has likewise signed on to that protocol.
4 If you look at that in the way the cities have
5 operated, I think you'd have a good outline for this
7 MR. POSITAN: Thank you very much,
8 Mr. Stryker. And, again, we're asking hard questions
9 here, and that doesn't necessarily mean we have a
10 position on those things.
11 MR. STRYKER: I'm only trying to avoid taking
12 another bar.
13 MR. POSITAN: Next in is Barry Epstein,
14 president of the State Bar Association of New Jersey.
15 Welcome, Barry. I remember last week when he was
16 presiding over the State Board of Trustees meeting. We
17 are kind of switching roles this week. He was very
18 nice to me last week, so I'm going to be nice to him.
19 MR. EPSTEIN: Thank you. It's a pleasure to
20 be here.
21 MR. POSITAN: I will tell you that Harold
22 Rubenstein asked me to please give you a hard time.
23 MR. EPSTEIN: The tougher the questions, the
25 We're actually very proud that we were named
26 as the chair of this commission particularly because I
27 think New Jersey perhaps can rightfully say that we
28 were the first State Bar Association in the country, as
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1 far as I know, to establish its own MJP committee, and
2 we've been working on this since about last May or
4 We're hopeful to have our report sometime
5 around May. Most of the states are just getting around
6 to doing this, and I think that's a fact. I think
7 what's also a fact is -- because I have traveled to
8 virtually every one of the 21 counties in the state
9 where I'm president -- and MJP has been the forefront
10 of my discussions with lawyers in small counties, rural
11 counties, and more populous counties -- what's
12 staggering is that when you ask them how many of them
13 are aware of the issues pertaining to
14 multijurisdictional practice, I think you get a
15 response of somewhere around 20 percent are even aware
16 of the problem.
17 When I tell them the story of Benedetto, which
18 this Commission is well familiar, you hear a mumbling
19 of some kind of -- fury actions is what I call it. You
20 have this mumbling of concern about lawyers. So I
21 think one of changes that's very important as the
22 Commission goes forward with its life is doing
23 something like get a message out there a little bit
24 better. We're working on this in my state. I believe
25 other state bars are, but it's something that I think
26 has to be addressed.
27 I just want to make a few comments. Much of
28 what I say does not necessarily represent the view of
Peterson & Associates Court Reporting, Inc. 93
1 my state bar association. It probably represents my
2 own at this point, because my bar has not taken a
3 formal position.
4 Let me just talk about New Jersey for a second
5 because we are in some ways kind of a unique state in
6 this game, if you will. We have called ourselves a
7 card state. We are in the middle of Pennsylvania and
8 New York, and we have had situations historically of
9 Pennsylvania attorneys, especially down in the south
10 Jersey area around Philadelphia seeking to practice or
11 coming into New Jersey to do business and a similar
12 situation goes on up in New York.
13 Some of you may know there is litigation right
14 now before our supreme court because New Jersey has
15 what's called a bona fide office rule, and that matter
16 is up there before our high court. Recently briefs
17 were submitted on the issue, and I don't know where
18 that is going to come out. I never confess to read the
19 minds of the seven justices who sit on our supreme
20 court, but that's something that I think needs to be
21 looked at in the context of this entire discussion.
22 Our practice in New Jersey is similar to other
23 states and is regulated by our Supreme Court. Our
24 state, like others -- for example, we have particular
25 rules on fee arrangements. Our fee arrangements in the
26 area of personal injury, which I did a bit of, is
27 different than other states: Different percentages,
28 different regulations for infants, different
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1 regulations for incompetency. That's something that
2 has to be examined.
3 We have specific rules that require fee
4 arrangements in a host of subjects such as in
5 matrimonial and other areas, and it's probably the
6 exception now in New Jersey where you can have a fee
7 understanding on a handshake or something called a flat
8 fee arrangement, which has probably been around
10 What are they going to do about ethics, which
11 I think has been discussed here? We have our own
12 ethics system in New Jersey by county, pretty much,
13 which in large part is paid for by the attorneys who
14 practice in our state and also is administered in part
15 by volunteer attorneys who are assigned or appointed by
16 the supreme court to hear these matters.
17 Lawyers who practice in New Jersey also have
18 to maintain or need special regulations or requirements
19 on banking accounts, sometimes called IOLTA (phonetic).
20 Your trust account must comply with the rules of our
21 court, and the interest on those accounts go into the
22 IOLTA (phonetic) fund. We all pay what's called a
23 client security. We have a client security fund in New
24 Jersey wherein it's set up so that lawyers can
25 communicate. We have a system so that people can make
26 application and have some form of restitution.
27 What's going to happen if we have what some
28 people seem to be suggesting is the national licensing?
Peterson & Associates Court Reporting, Inc. 95
1 Are the proponents of that suggestion willing to say we
2 will live up to all those requirements? because, as you
3 know, I don't think you can have one without the other.
4 If you want to get the benefit of coming in
5 and doing business in this state, I think there has to
6 be a recognition that you're going to meet the
7 necessary obligations, which you have a license there
8 and you have support in these things.
9 We are -- and I would love to hear if I'm
10 wrong -- but I think we're the only state in the
11 country that has a mandatory pro bono system. I think
12 that's so because we say it all the time, and we tell
13 our court that all the time. Nobody has ever seemed to
14 disagree with it. Maybe I'm wrong. I know some states
15 have mandatory reporting, but actually ours is a true
16 mandatory pro bono system.
17 I wonder if the lawyer in California who is
18 going to come in here is going to be willing to take a
19 court case for some poor person who's been charged with
20 drunk driving in Newark, New Jersey as part of his
21 obligation or her obligation to practice in our state.
22 These are some of the things -- and they're
23 very, very tough questions. We have been wrestling
24 with it for a couple years. It's part of the picture
25 with regard to what do we do with corporate attorneys,
26 and I know they have their own ax to grind about
27 getting the limited license. We've been lucky to deal
28 with that on a piecemeal basis because it needs to be
Peterson & Associates Court Reporting, Inc. 96
1 part of the total picture when it comes out of this
3 I think it's also a little naive to suggest
4 that because you've been practicing -- and I don't mean
5 to disparage any particular state, but you've been
6 practicing in Massachusetts or you've been practicing
7 in Ohio -- that you could move down to Louisiana where
8 I understand they still use the Napoleonic Code and not
9 be doing a disservice to people who walk into your
10 office on day 2 or 3 and want you to handle the case.
11 I practice within 10 miles, 10 minutes, of
12 New York City, and the last thing that I would do is
13 get myself into a situation where I'm subject to all
14 the ramifications of what they call CPLR. My
15 colleagues and friends who practice in New York -- New
16 York doesn't even really know all of its implications.
17 And so I think one can't be naive to assume that since
18 you practice in one jurisdiction that you're ready to
19 set up shop anywhere.
20 I know when I came out of law school, I had to
21 work for a firm or probably a number of firms for a
22 couple of years before I really felt confident that I
23 could handle all the things that would come at me on a
24 day-to-day basis.
25 I think in the end what I really want to say
26 to this group is that there are special problems that
27 have to be dealt with in every state, and in the end,
28 although I recognize people have the need and perhaps
Peterson & Associates Court Reporting, Inc. 97
1 the right to be able to move around to represent their
2 clients, how people are going to practice in a
3 particular state needs to be regulated by the court
4 which has jurisdiction over the practice of law in that
5 particular state.
6 My home state now has just formed a committee
7 through our supreme court who will ultimately settle
8 the rules on this in our state on the practice of law.
9 We have a very strong supreme court with respect to the
10 administration and practice of law in our state, and I
11 think that they're going to be the ones that are going
12 to have the last say on what happens in New Jersey.
13 I think that although this Commission needs to
14 come up with the broad strokes, if you will, I think
15 there has to be a recognition that things are going to
16 vary from state to state, and in the end each state is
17 going to continue to regulate the practice of law.
18 I think that is the position that our state
19 takes and many state bar associations. A few years ago
20 we had something on the MJP debate. I don't think this
21 is simply just a question of recognizing reciprocity.
22 There is much more to this than just taking bar exams
23 and being able to move around.
24 I think there are rationalizations that can be
25 developed for people who get career changes, who can
26 get moved. I think there are mechanisms in place to
27 allow them to get admitted into other states, but I
28 dare say it's just not that simple saying "I'm out of
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1 state." I know there was some mention by Mr. Positan
2 about the Benedetto case.
3 I'm probably the only person in this room who
4 has spoken to Mr. Benedetto, and I've recently spoken
5 to Mr. Benedetto's lawyer. Mr. Benedetto -- just in
6 case you don't know the whole picture of it -- I always
7 feel compelled to talk about it -- he was actually
8 indicted in South Carolina while doing what I would
9 call preceding investigation work where he had the
10 intention to apply for pro hac vice at a later time.
11 The latest update on that in New Jersey is I
12 believe it came out that he would be reprimanded for
13 what he did in South Carolina. I mention this because
14 there's been discussion about what will happen with
15 host states and foreign states if lawyers are
17 I think until you all come to a recognition
18 that there's going to be some kind of -- I don't know a
19 better way to call this other than some kind of
20 interstate compact, which is going to be pretty much
21 signed on by all the high courts, not just chief
22 justices, but the high courts. I'm not sure how that's
23 going to work because what may be a violation in New
24 Jersey may not necessarily be one in Illinois.
25 And so this is a massive undertaking. I
26 applaud all of you for what you're doing because the
27 more I talk about it, to me, the more complex it gets;
28 and I don't think you can come to any conclusions here
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1 unless you tie this whole thing in with another fine
2 product of the ABA, Ethics 2000. I was glad to see
3 that Ethics 2000 talks about developing the Safe Harbor
4 Commission, which I think is really fantastic.
5 MR. POSITAN: Thank you.
6 Any questions?
7 Thank you very much.
8 MR. DIMOND: But for the shortage of time, I
9 think we would have a lot of discussion.
10 MR. EPSTEIN: We can talk about this in the
11 future. Thanks.
12 MR. POSITAN: James Edwards, ACCA.
13 As opposed to ACCA caucus, I presume.
14 MR. EDWARDS: I'm James Edwards. I'm vice
15 president, general counsel of Bakertronics, Inc., which
16 is a small biotech company here in San Diego. I'm a
17 board member of the American Corporate Counsel
18 Association and am on the advocacy committee of the
19 board and on the San Diego chapter of ACCA.
20 Unlike Mr. Stryker who was here before, I'm
21 only licensed in one state and don't want to be moving
22 around and taking it in another states as well. I
23 spent almost all of my career working in either large
24 international companies or small companies with only
25 brief sojourns in private practice.
26 So I'm approaching this from the, if you will,
27 the wholesale part of the law. We're dealing with
28 sophisticated clients almost exclusively as opposed to
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1 the retail side where we're talking -- the previous
2 speaker talked about any concerns.
3 Even though the current company I work for is
4 quite small -- we have 16 people -- we do international
5 business, and we do business across state lines. We do
6 business, as I mentioned, in a number of countries.
7 That's been the circumstance since, essentially, my
8 first day of practicing law.
9 I would say that virtually every corporate
10 counsel, in-house corporate counsel, faces the same
11 situation where we're doing business in a number of
12 states, in a number of countries, at a fairly
13 sophisticated level. If you look at the way the
14 current bar rules are across the various states, I
15 would suspect that anyone who has done anything of what
16 I would call a retail aspect of the law has probably
17 violated the rules in any number of jurisdictions.
18 Everyone in this room has, unintentionally, of course,
19 but that's just the way the current rules stand.
20 So I think the -- where we are is the
21 multijurisdictional practice of law is a fact of life.
22 It's what's been happening. It's what's been happening
23 for decades. I am pleased that this Commission
24 actually is looking at a way to bring the laws in
25 compliance with reality, because reality is we all
26 practice law in a variety of jurisdictions.
27 This, as Dennis pointed out, is technology
28 that is just accelerating on an almost daily basis. So
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1 I'm here to support the American Corporate Counsel
2 position, which has been presented to this Commission
3 earlier, and it is what I call a very free-enterprise
4 approach to practicing law. It eliminates a lot of
5 protectionism that relates to current Bar Association
6 rules, particularly for the sophisticated clients. It
7 is a carefully-crafted approach to address a lot of the
8 concerns with discipline and moving between states and
9 issues like that.
10 Also, it's a common sense approach. I mean,
11 it makes the changes or proposes a system, a compact
12 system, that allows us to impress the way we practice
13 law today instead of looking back at centuries the way
14 it was practiced 100 years ago. It doesn't provide for
15 the discipline that's needed.
16 I think some of the concerns that have been
17 addressed can be met with full disclosure requirements
18 even in the circumstance of someone moving into a state
19 and setting up shop. As was mentioned earlier, that
20 can be addressed as disclosure.
21 So I would heartily support the Commission
22 taking seriously the compact -- the national compact
23 approach that ACCA has proposed and certainly as it
24 relates to corporate counsel who are representing one
25 client, are employed by that one client, and whose one
26 client may move you across state lines to address
27 company business or permanently assign you in a
28 different jurisdiction. That client has the capability
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1 of making the judgment of whether or not you are able
2 to practice law and serve them as a counsel in that
3 state or internationally.
4 MR. POSITAN: Any questions?
5 MS. GARVEY: One brief one. You heard the
6 previous speaker's presentation. Mr. Epstein raised a
7 number of questions. The ACCA proposal indicates that
8 an attorney appearing in another state will be willing
9 to undertake all of the obligations of admission in
10 that state as part of the reciprocity in this compact
11 arrangement. Has ACCA considered the kinds of issues
12 that Mr. Epstein raised? I think there's been perhaps
13 an assumption of some cumulative national standard or
14 whatever. Do you have any comments on that?
15 MR. EDWARDS: I think in the broadest sense
16 that the obligations would be undertaken, I think that
17 there are some peculiar instances of individual states
18 that have to be addressed, whether or not it's a
19 mandatory pro bono. It's essentially a one-state
20 requirement. There needs to be a way to work it out
21 between states.
22 But other professions do have the same thing,
23 as Dennis has adequately described engineering. The
24 accounting professions -- they're able to move from one
25 state dealing with tax -- individual tax issues and
26 county issues among different states and different
27 requirements that the states have. I don't know that
28 we have an answer to each of those particular concerns,
Peterson & Associates Court Reporting, Inc. 103
1 but I think they can be addressed.
2 MR. POSITAN: We're getting back to the
3 question that I asked in the beginning referring to the
4 ACCA representative, if you have a general counsel in
5 New Jersey headquartered there, and that person's job
6 is to go to five states in one week on a regular basis
7 and conduct HR, let's say, type matters for them. So
8 that every Monday they go to Connecticut, every Tuesday
9 New York, every Wednesday they're in New Jersey, and
10 every Thursday they're in Rhode Island and so on.
11 Are they engaged in temporary practice of law,
12 or is it something more than that in states?
13 MR. EDWARDS: You have the advantage over me;
14 I didn't hear what John said.
15 MR. POSITAN: I'm just trying to get an
16 answer, but I'm sure you will -- it's not the question.
17 I'm not being facetious. On this issue, what is the
18 temporary law, regarding drawing guidelines? Somebody
19 from the Corporate Lawyers Association should address
21 MR. EDWARDS: I would say possibly whatever
22 state you're in.
23 MR. POSITAN: You're doing it on a regular
24 basis, aren't you?
25 MR. EDWARDS: Temporary. I see that to be in
26 the safe harbor and not an important distinction when
27 you're in a corporation. You can be doing -- you're
28 making those same -- giving that same advice on the
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1 phone, hopefully. That's a better idea than traveling
2 to five states, but that's what happens.
3 That's the reality of what happens when you
4 get a call from your office in Delaware and get an
5 office in Oklahoma, and you are giving HR advice to
6 both states. You are doing it on more of a common
7 sense approach, knowing that each state has some
8 peculiarity that you might have to face if it gets
9 farther down the track in the range of the problem.
10 MR. POSITAN: I just want to get back to what
11 my mother said: You want your cake and eat it too.
12 At what point do you get to the point where
13 you say something more than temporary practice covered
14 by a safe harbor is going on here? At what point do
15 you say you have to be a member of the bar there?
16 MR. EDWARDS: Are you talking about from
17 the -- are you a corporate lawyer, then?
18 MR. POSITAN: Yes, in-house counsel with a
19 corporation. It's based in five states, headquartered
20 in New Jersey, and one day a week you go to New York,
21 Connecticut, Massachusetts, Rhode Island on a regular
22 basis to conduct HR matters for that corporation with a
23 head honcho on that matter.
24 When you're doing that, are you doing the
25 temporary practice of law in the safe harbor under 5.5,
26 or are you conducting yourself in a more permanent way
27 that might require relations? I don't know the answer.
28 MR. EDWARDS: I don't think it matters. I
Peterson & Associates Court Reporting, Inc. 105
1 don't think it matters at all because what you're
2 really talking about is, in reality, that's what --
3 that's the way people are practicing law. What you're
4 talking about is having a system where we're bringing
5 the law or our rules in law up to the 21st century.
6 MR. POSITAN: In reality, if the court of
7 appeals in the state of New York told me I have to have
8 mandatory CLE credits, why shouldn't you have them?
9 MR. EDWARDS: I do, in California.
10 MR. POSITAN: I'm talking figuratively.
11 MR. EDWARDS: But, again, for the purpose of
12 this organization, this Commission, is to look at how
13 we make common sense out of where we are today and put
14 that with the way law is practiced today. We have to
15 say that just because one state does it this way
16 doesn't mean we have to cross those barriers. Those
17 are subsidiary problems that have to be dealt with; but
18 the reality is that the system and the purpose, I
19 think, of this Commission is to create a national
20 approach to the way law is practiced today and
21 practiced for decades.
22 MR. EHRENHART: Mr. Edwards, is your answer
23 sort of taking off from our driver's license system?
24 If I get a driver's license in New York that may
25 require a road test, with all kinds of things in it
26 like parallel parking and how to squeeze into small
27 places by fire hydrants and so on, can I get -- I'm
28 allowed to go to California where they may have
Peterson & Associates Court Reporting, Inc. 106
1 different rules, but my driver's license from New York
2 is respected. It's allowed.
3 I'm allowed to use the California roads,
4 hazard California residents with my New York driving
5 experience, and yet that's the system that we have
6 adopted because it's the only way that commerce can, in
7 fact, be effectively pursued in our state. What you're
8 proposing --
9 MR. POSITAN: Spend six months here, then you
10 get a full license here?
11 MR. EHRENHART: That may be the answer. If
12 you set up permanent residence --
13 MR. EDWARDS: But setting up shop -- and
14 you're right. And, in fact, that's in the ACCA -- the
15 driver's license example.
16 MR. POSITAN: In interest of everybody's
17 hunger, I think we need to move on here a little bit.
18 Thanks so much for your comments, Mr. Edwards.
19 I look forward to your continued participation.
20 Pamela Banner, Section of Intellectual
21 Property Law.
22 MS. BANNER: Good morning. My name is Pamela
23 Banner, and I'm here, as you said, on behalf of the
24 Section of Intellectual Property Law. Our goal today
25 is, first of all, to thank all of you for inviting us
26 and including us to speak and to share with you how the
27 problems you're trying to solve affect our product in
28 the profession.
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1 Our profession has been dealing with this
2 problem for a long time. What we do, whether it's
3 copyright law, trademark law, trade secret law, or
4 patent law by definition involves crossing states lines
5 and increasingly involves going beyond the borders of
6 the United States.
7 One of the problems that we see with the
8 current system is that it has a possibility of having a
9 chilling effect on clients finding the right lawyer for
10 the particular problem. The areas that we deal with
11 follow creators. We follow the technology. We follow
12 the authors, the inventors, the brand owners, the
13 people who create goods and services who put it into
15 They are highly specialized technologies and
16 highly specialized areas of the law; so there are
17 oftentimes situations where there is one or a handful
18 of the right people to handle the particular matter,
19 whether it's Napster or someone really knows how the
20 Internet works, the detailed underpinnings of the
21 federal copyright statute or a Ph.D. in biotechnology
22 with the right lab experience who knows how to obtain
23 patent protection for a particular sequence of the
24 human genome.
25 These are questions that require high degrees
26 of specialization. So what we see in our practice
27 routinely, is that clients want that person wherever
28 they come from to handle that particular matter. We
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1 don't see this changing any time soon; and, in fact, I
2 went back -- I practiced in private in the District of
3 Columbia. My own background is in the area of patents,
4 and I do a lot of my work in the software industry.
5 I went back to my 2000 billable time report,
6 and to illustrate the point, I reviewed that less than
7 1 percent of my billable time last year was spent on
8 clients based in the District of Columbia. It just
9 doesn't happen in our field. I don't think it's going
10 to change.
11 With that, a little bit of background, the
12 Section has a couple things -- I won't go into all of
13 the points that are in our written materials, but just
14 a couple of things that we would recommend as the
15 Commission moves forward.
16 First, it would be of great benefit, we
17 believe, if state laws were both clear and uniform so
18 that the rules were made at a level playing field
19 across the board.
20 Second, we believe that lawyers who are
21 employed by companies ought to be able to cross state
22 lines and practice in those respective jurisdictions
23 where they may not be members of the bar. It is a
24 practical reality that's needed; and as previous
25 speakers have said, it's happening every day.
26 With respect to lawyers not so employed, the
27 Section's position would turn, again, on this term of
28 temporary practice. We believe that a lawyer who is
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1 not admitted to a specific jurisdiction should be able
2 to practice temporarily on a particular matter or for a
3 particular client. So on a project-specific or a
4 client-specific basis, you should be able to cross
5 state lines.
6 We would note that that would exclude any kind
7 of regular solicitation or advertising. I think that
8 goes beyond a legitimate practice.
9 Finally, and this is so much a part of our
10 area, the use of technology further facilitates this
11 and we would enter into the position whereby writing
12 letters, faxes, E-mail, any form of modern
13 communication that would be sent over to an area that a
14 lawyer wasn't admitted in, ought to be corollary to the
15 temporary practice of law allowable. We, as I
16 mentioned earlier, are very concerned --
17 MR. POSITAN: Does that apply to solicitation
19 MS. BANNER: I'm sorry?
20 MR. POSITAN: What if you were soliciting by
22 MS. BANNER: The Section felt that that was
23 marketing and not practicing law and that was more
24 properly in the state's arena to govern who does what
25 and how.
26 MR. DIMOND: Does the Section consider that in
27 some states, it's the (inaudible) that regulate
28 advertising or solicitation?
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1 MS. BANNER: If they did, they didn't tell me.
2 I'd be happy to go back with that question, if that
3 would be helpful. I'd be happy to follow-up on that
4 question with the Section's position.
5 The bottom line is the section is very
6 concerned that, frankly, as people become aware of the
7 ramifications of the house rules, it would have a
8 chilling effect particularly on the client's proper
9 counsel. It would also have a chilling effect on
10 counsel wanting to play by the rules and engaging in
11 certain types of work.
12 Finally, most of the Section's comments in the
13 written submission are directed to multi-state problems,
14 but, increasingly, we're seeing this on an
15 international basis.
16 I can tell you from my own experience in the
17 software field, I routinely am involved with companies
18 that are developing software products abroad in part
19 because it is very difficult to get technology-
20 oriented people, scientists, and engineers into the
21 United States. So I routinely deal with development in
22 England and Southern India where the software industry
23 is very strong. So this is an increasing problem on an
24 even bigger scale.
25 MR. POSITAN: What has the experience been
26 between the United States and Canada? I don't know if
27 you were here for the gentleman who was here from
28 Alberta. I was interested in what reality was going on
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1 right now between the United States and Canada.
2 MS. BANNER: I was not here for his testimony,
3 but the reality is that it's a pretty fluid line. They
4 routinely advise people on a specific issue by
5 telephone, by E-mail; and it's a pretty fluid line.
6 MR. POSITAN: Do the members of the Section
7 frequently practice in Canada? Can somebody go up and
8 visit a client in Quebec?
9 MS. BANNER: Yes.
10 MR. POSITAN: And give legal advice up there?
11 MS. BANNER: I think it is a fair statement
12 that intellectual property practitioners would
13 routinely go to any other country in addition to Canada
14 and advise them on how to protect, for example, a
15 patent portfolio, how to develop a patent portfolio on
16 a worldwide basis, to get a game plan going for what a
17 company ought to be doing for patent rights generally.
18 MR. POSITAN: What's the experience in the
19 country? For example, coming down here, is that
21 MS. BANNER: It does. But, frankly, the big
22 money is still in the United States; so you tend to see
23 us going to other jurisdictions more than other
24 jurisdictions here. Although there is some debate on
25 the litigation side whether under the current state of
26 flux and other scenarios of the patent laws, it's
27 better to sue first in Europe.
28 But what we're seeing is our practice becoming
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1 a global practice; and the kinds of clients that we
2 deal with, whether they are large corporations or
3 individuals with a good idea that they want to protect,
4 are doing on a worldwide basis.
5 MR. POSITAN: Does the Section have any
6 position on foreign legal consultants practicing in
7 terms of whether that works or doesn't work in states
8 in which it's been accepted?
9 MS. BANNER: No, they don't.
10 MR. POSITAN: That is something in terms of
11 further input I would personally find of value.
12 MS. BANNER: I'll take that back to the
14 MR. POSITAN: Any other questions?
15 Thank you. Thank you. We look forward to
16 your continuing input.
17 Next is Brigadier General David Hague.
18 MR. HAGUE: Good afternoon, Mr. Chairman and
19 members of the Commission. I am a recently retired
20 Marine and chair of the Standing Committee on Legal
21 Assistance for Military Personnel. Those are my
22 credentials for speaking to you now.
23 I heard at the end of the Young Lawyer
24 Division presentation mention judge advocates and
25 military attorneys, and that's the group that I'm
26 speaking for at least to the extent I'm able to. I
27 heard Mr. McCallum ask for input from the judge
28 advocates general services, and I'm certain that will
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1 be forthcoming.
2 What I have to say is just by way of
3 background for you. My information is D-13. The group
4 I'm speaking for is approximately 1,000 attorneys that
5 at any given time are providing legal assistance to
6 military personnel, for example. Those thousand
7 attorneys -- they're all licensed attorneys, first of
8 all. They're active duty, they're reserve, or they're
9 GS, government service, attorneys that work for the
10 armed forces. The armed forces, in this case, is the
11 four services and the Department of Defense and the
12 United States Coast Guard and the Department of
14 Each of the services has its own set of rules
15 that flow down to the individuals I've just identified.
16 Everything, then, flowing up comes from 10 USC 1044
17 which is the statute that provides authorization for
18 legal assistance and civil matters to be provided to
19 armed forces personnel and their family members.
20 In a year's time probably a million instances
21 of legal services are provided to that group of people.
22 Most of those services are given to younger people in
23 the armed services in the lower pay grades.
24 What I am doing on behalf of the committee and
25 to the extent I speak for that group, is to encourage
26 the Commission to encourage the states to expressly
27 recognize that the legal assistance services provided
28 by that group I just identified, is not the
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1 unauthorized practice of law because what is quite
2 common is that you will have a Virginia attorney
3 practicing in California, giving advice to a serviceman
4 from Idaho; and that may be the creation of a will,
5 that may have to do with a separation agreement.
6 There's a broad range of services that are provided.
7 MS. NIRO: Excuse me. May I ask a question?
8 MR. HAGUE: You may.
9 MS. NIRO: I apologize for my lack of
10 knowledge about the military justice system, but do you
11 have any internal disciplinary regulations, regulatory
12 scheme? And my thought is based upon the notion that
13 most UPLS statutes are largely premised in the practice
14 of protection of clients or the protection of the
15 public. And I'm wondering if the 1,000 lawyers are
16 subject to any disciplinary system?
17 MR. HAGUE: Now, you're referring -- we have a
18 criminal system, if that's what you're referring to.
19 MS. NIRO: No.
20 MR. POSITAN: Just in the course --
21 MR. HAGUE: Yes, there is a disciplinary
22 system, and they meet when required when there are
23 complaints made against attorneys. They answer to the
24 state they practice in, they're licensed in, and to
25 their individual service. Yes, that's correct.
26 MR. DIMOND: Are these lawyers licensed
28 MR. HAGUE: Are they licensed somewhere?
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1 MR. DIMOND: I mean, they can be a lawyer and
2 not be licensed, graduate law school who are military
3 officers who have a license in one state who may be
4 assigned in another state giving advice to military
5 personnel where civil problems may stem from the laws
6 of a third state.
7 MR. HAGUE: That's correct.
8 MR. DIMOND: What I'm talking about is, is
9 there any consideration as to how that lawyer licensed
10 in Virginia practicing at Camp Pendleton, California is
11 knowledgeable about the laws of Louisiana where he's
12 appointed but is a civil lawyer?
13 MR. HAGUE: Well, in answer to your question,
14 yes, they are all licensed in at least one
15 jurisdiction, and most of us are licensed in multiple
16 jurisdictions but in all likelihood not licensed in the
17 state where they're actually giving the legal
19 Probably about 80 percent of the workload I
20 just described is done within the continental United
21 States. The other 20 percent is done overseas, aboard
22 ship, and other locations. I don't know if that
23 answers your question or not.
24 MR. DIMOND: What I want to know overall in
25 the regulatory scheme here whether Congress has given
26 in effect safe harbor to those men and women in the
27 military to provide legal services within the Title 10
28 structure that you described? Or, in other words, if
Peterson & Associates Court Reporting, Inc. 116 1 there is a problem that requires a safe haven from 2 state bar regulators, or are these men and women 3 protected already? 4 MR. HAGUE: Very likely so. We could probably
5 continue on the status quo, and it is not a problem.
6 The Commission in its wisdom we would like for you to
7 look to see if, in fact, under 5.5, 6.5, and 8.5, if
8 there is a place there with safe harbor provisions
9 where there are expressed statements by the states as
10 to the fact that this is not an unauthorized practice
11 of law by military attorneys practicing within those
12 state jurisdictions.
13 MR. EHRENHART: Having been a judge advocate
14 for 30 years, I can testify that there is inadequate
15 supervision of young judge advocates on this issue; and
16 indeed there is a better need for supervision on the
17 quality of the kind of legal assistance that they
18 provide. But as far as the states having a role in the
19 supervision of those lawyers, I don't think that they
20 are -- the states expressed in the past or do anything
21 about it.
22 I think the view as they suggested, is that
23 the federal statute kind of preempts that regulation by
24 being specifically authorized to provide services is
25 something that, I think, is permitted by federal law,
26 which would supercede probably with a contrary view.
27 But I think that the problem about the
28 adequate supervision of the kind of drafting and so on
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1 that goes on, the house of contracts and separation
2 agreements and such, are indeed at risk of what
3 reservists and active duty people provide which is a
4 very important aspect of services you were pointing
5 out, a very large number.
6 The extent to which that is supervised quality
7 is a real problem because there are judge advocates in
8 both places that are totally preoccupied with military
9 justice and other kinds of procurements, and this goes
10 down to the young best captains at the base and to the
11 extent that they know what are they doing I think is a
13 MR. HAGUE: To some extent I suspect our
14 30 years overlapped, but I can state to you that the
15 services being provided now are measurably better than
16 they were 15, 20, or 25 years ago.
17 MR. EHRENHART: Glad to hear you say that.
18 MR. HAGUE: Yes, sir.
19 MR. POSITAN: Well, I was in the U.S. Army
20 Reserve, and I remember I was in summer camp in
21 Tobyhanna, Pennsylvania one time. Somebody stole a
22 fire truck, and I got summoned out of bed at 4:00 or
23 5:00 o'clock in the morning working out of the
24 Cleveland Center. So I'm aware that there are some
25 multijurisdictional problems.
26 But does litigation enter into this picture or
27 not? Let's face it, if somebody is in the military on
28 active duty and they get into an auto accident, I
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1 suppose you couldn't get an affidavit -- or is this a
2 non-litigation problem that we're talking about?
3 MR. HAGUE: It's not uncommon and is becoming
4 more common in what is called Expanded Legal Assistance
5 Program. It exists in Florida, Virginia, here in
6 California, and other locations. That's an area where,
7 in fact, military attorneys can go into local courts
8 with issues that need to be resolved in a litigation
10 That's somewhat different from the other type
11 of legal assistance that I'm referring to, and that is
12 largely document preparation and some pro se work that
13 is done to assist military clients.
14 So, yes, there is some litigation. Florida is
15 a good example. They have Rule 18, which does a
16 marvelous job of addressing this Expanded Legal
17 Assistance Program. But that's one, again, where the
18 safe harbor aspect comes into play a little more
19 dramatically than it does in the civil legal services
20 that are provided in a law office setting.
21 MR. POSITAN: Any further questions?
22 Thank you, General.
23 MR. HAGUE: Always nice to have friends in
24 court, I might add.
25 MR. POSITAN: Always sensitive to our needs of
26 our armed forces.
27 Finally this morning Andrew Guilford,
28 Immediate Past President of the State Bar of
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2 MR. GUILFORD: Thank you, Mr. Commissioner.
3 Thank you for the opportunity to speak here today, and
4 thank you for waiting while you're hunger is no doubt
6 Diane here will not be able to hear what I
7 have to say, but she's already heard which explains her
8 absence. It is indeed a pleasure to be here. I
9 appreciate the opportunity.
10 I am the past president of the State of
11 California Bar Exam with our 180,000 lawyers. I am
12 presently the chair of the Multijurisdictional Task
13 Force for the State Bar of California, which was
14 recently appointed.
15 The State Bar does not have a position on the
16 subject; so I will be this morning briefly -- I
17 emphasize briefly -- some general ideas without getting
18 into specifics on position.
19 I myself do have a position. I expressed it
20 in an article that I would like to provide to the
21 Commission for them to do with as they please. When I
22 wrote that article, I must say it got the greatest
23 response of any article that I wrote in my years as bar
24 president, which maybe emphasizes the importance of
25 this issue.
26 I have also received a lot of fascinating and
27 creative suggestions on how to respond to the problem.
28 Perhaps one of most intriguing suggestions -- maybe
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1 impractical -- but nevertheless was intriguing was a
2 gentleman who wrote me and said, "Okay. I am moving to
3 California. I have to take your bar exam, which means
4 I have to study for three months. Here's an idea, why
5 don't I do three months of concentrated pro bono work
6 in exchange for the admission to the State Bar of
8 That struck me as responding to two problem
9 areas. I don't know if that is practical. I would
10 have to think through it, and I've heard a lot of
11 drawbacks here today; but it certainly was
12 intriguing -- the thought that we might kill two birds
13 with one stone.
14 Although I can't take a position on behalf of
15 California, I'd like to urge the Commission to pay
16 attention to California and to listen to us, and we
17 will be coming up with a position. We have asked for a
18 delay in the Commission's actions, and I think that
19 might be coming along.
20 Let me tell you a few reasons why I think
21 California has a unique and important role to play in
22 this discussion. I've heard it said that between 1 and
23 5 or between 1 and 7 lawyers are, in fact, members of
24 the California Bar. If it's as high as 1 in 5 or if
25 it's as low as 1 in 7, that's still a whole lot of
26 lawyers dealing with this problem.
27 Some other unique features of California on
28 this issue include the issue that many think we have
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1 the toughest bar exam, the most demanding bar exam.
2 That obviously plays a key role in how this issue will
3 be decided. The state with the toughest bar exam is
4 ultimately going to have to deal with states with less
5 rigorous bar exams. So that's an important point.
6 Ironically, at the same time California is the
7 state that has most firmly-embraced unaccredited law
8 schools. We have unaccredited law schools. So our
9 education goes down to unaccredited, and we have a very
10 stringent bar exam; and, obviously, states that don't
11 recognize unaccredited law schools are going to have to
12 deal with California on that subject in this issue.
13 I was intrigued by the New York lawyer who
14 said New York was the center of commerce, and I thought
15 "Ah, well, maybe they were." I thought that California
16 is now. The Atlantic is the ocean of the past, and the
17 Pacific is the ocean of the future.
18 We are the home of a lot of high tech the very
19 high tech that we have been talking about on this
20 multijurisdictional issue. I have been speaking from
21 my palm pilot. So that's an example of California, and
22 it's high tech relationship on this issue.
23 So California's commerce -- California is the
24 center of high tech and I think it needs to play a
25 particular role in the resolution of this whole multi-
26 jurisdictional issue.
27 I might also say, with the indulgence of the
28 Commission, that we have an excellent staff in
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1 California that has indeed looked at that issue for
2 many years. We have Randy Difuntorum over here and
3 Paul earlier here today. We have some excellent ideas,
4 and have explored these kinds of issues for many, many
5 years. And I think that's another thing that makes
6 California special.
7 Finally, in California, we are, of course, the
8 home of the Birbrower decision. We have a couple of
9 decisions in here --
10 MR. POSITAN: If it wasn't for you, we
11 wouldn't be here.
12 MR. GUILFORD: Exactly.
13 So those are some of the special reasons why
14 California is particularly important on this issue.
15 Well, we quickly say where California has been. We've
16 been looking at for a quite a while, which is another
17 reason why California has -- going back to 1995, we
18 spent hundreds of thousands of dollars on a Futures
19 Commission, and that Futures Commission recommended
20 liberalizing California's reciprocity rules.
21 As we were working to implement that decision,
22 a few things went awry with the California State Bar;
23 and we went through a period of dormancy, I should say.
24 When I became president, we emerged from that dormancy,
25 and when I was installed in my speech I said let's look
26 at reciprocity. Again, I noted that has filled a lot
27 of interest.
28 As a result of that speech and other things,
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1 the state bar moved to assign a task force, which has
2 now been appointed, which is now looking at the
4 Independently, some legislation was admitted
5 to the California legislature calling for reciprocity.
6 That legislation got bumped up to our California
7 Supreme Court, which ultimately would have the final
8 say on that. Another committee was appointed by the
9 California Supreme Court.
10 Joanne, I believe you're on that board? Joanne
11 is on that board and so is Diane, as am I. So that
12 Supreme Court committee and the State Bar committee
13 will be looking at this, and I might suggest that the
14 action of that Supreme Court committee will basically
15 determine how California goes on this important issue.
16 I'd like to think how California goes on this
17 issue may, in fact, affect how the United States goes
18 and even how the world may look at the issue.
19 So I appreciate your time, and we'll watch
20 with great interest the work of this Commission in this
21 information gathering. I hope we can work together on
22 this problem.
23 MR. POSITAN: We certainly look forward doing
24 that with you.
25 Any questions?
26 Lunch is finally overwhelming us. Thank you
27 for your attendance. We will adjourn now and reconvene
28 at 2:00 o'clock for further roundtable discussion.
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1 Tomorrow morning the hearing will continue right here
2 at 9:00 o'clock.