Commission On Multijurisdictional Practice San Diego Meeting Transcript - Center for Professional Responsibility





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

  1. what you say, and we care about what you say. We take
  2. 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

25 located.

26 These increasingly sophisticated legal

  1. 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

27 admission.

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

4 examination.

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

26 questions.

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

23 employer.

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.

Peterson & Associates Court Reporting, Inc. 12

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

25 assignments.

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

4 that?"

5 What's ACCA's position on mandatory pro bono?

6 What are they willing to do in order get what they

7 want?

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

20 mandatory.

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

16 court.

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.

Peterson & Associates Court Reporting, Inc. 15

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

3 base.

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,

Peterson & Associates Court Reporting, Inc. 17

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

2 responsibility.

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

9 courtroom.

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

13 thinking.

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

21 described?

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

10 (inaudible).

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

6 curious.

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

13 you.

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

28 defendant.

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

7 motions.

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

27 competence.

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

13 should.

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

25 reciprocity.

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

12 east.

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

6 forever.

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

15 disbarment.

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

14 litigation.

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

25 practice.

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

20 elsewhere."

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

4 days.

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

17 Giannini.

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

2 viewpoints.

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

20 does.

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

7 matters.

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

25 position?

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

14 particular.

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

22 (b)(2i).

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

10 conduct?

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

18 York.

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

19 possibility.

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

Peterson & Associates Court Reporting, Inc. 66

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.


Peterson & Associates Court Reporting, Inc. 67

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

27 knowingly.

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

21 them.

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

17 practice.

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

25 happen?

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

8 repetitive.

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

24 go.

25 MR. DIMOND: Excuse me for one more question.

26 To draw this distinction between a lawyer and the law

27 firm?

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

6 okay.

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

14 debate.

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

6 counsel?

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

27 input.

28 Next we call Dennis Stryker.

Peterson & Associates Court Reporting, Inc. 84

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

27 by.

28 How is it that we allow engineers and

Peterson & Associates Court Reporting, Inc. 87

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

23 exam.

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

1 York.

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

24 writing.

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

6 Commission.

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

24 better.

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

3 June.

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

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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

Peterson & Associates Court Reporting, Inc. 94

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

9 forever.

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

2 group.

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

16 disciplined.

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

Peterson & Associates Court Reporting, Inc. 101

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

Peterson & Associates Court Reporting, Inc. 102

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

20 that.

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

14 commerce.

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

18 areas?

19 MS. BANNER: I'm sorry?

20 MR. POSITAN: What if you were soliciting by

21 E-mail?

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

Peterson & Associates Court Reporting, Inc. 111

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

20 applicable?

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

13 Section.

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

13 Transportation.

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

27 somewhere?

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

18 assistance.

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

12 question.

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

Peterson & Associates Court Reporting, Inc. 118

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

9 setting.

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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1 California.

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

5 growing.

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

7 California."

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

3 subject.

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.