Vol. 44, No. 3

Breaking barriers: Bars connect with nonresident members, consider ways to facilitate cross-border practice

By Robert J. Derocher

Two decades ago, veteran New York lawyer Ron Minkoff wrote about an idea he calls “very extreme”: allowing attorneys to practice across state lines, following the model of a driver’s license. Thus, an attorney licensed (in good standing) in one state could practice in another with few admissions restrictions.

Today, Minkoff concedes it’s still an extreme idea—but not nearly as far-fetched.

“People’s attitudes have changed,” says Minkoff, a former member of the ABA Standing Committee on Professionalism and a past president of the Association of Professional Responsibility Lawyers. “People have realized that the problems with the profession are not going to be solved with limiting [lawyers’] geographical reach.”

The notion of where a lawyer can practice and the ease—or difficulty—with which a lawyer can practice in multiple jurisdictions is one of several challenges that currently face the profession, say Minkoff and others involved in tracking and developing changing professional standards. It’s an idea that is increasingly under examination for change, as well as one where bar associations can play a pivotal role through discussion and example, they add.

Examination, discussion and experimentation should all be in the mix, they say, as bar leaders join the courts, lawyers and other legal professionals in reshaping the profession.

Market forces leading to fewer barriers

 “We’re living in the midst of the biggest market change in legal services in the last 100 years,” says Lucian Pera, another former APRL president and a past president of the Tennessee Bar Association. “We’re at the beginning of an era of really dramatic change.”

Rapidly advancing technology, generational workplace changes and shifting worldwide economics are among the biggest contributors to changes in the profession, Pera says, as evidenced by happenings such as the rise of online legal documentation services, limited license legal technicians, declining law school enrollment, large law firm layoffs and stagnant or declining bar association membership.

And thanks to a combination of an increasingly mobile—and remotely working—workforce, and often restrictive limits by some states on multijurisdictional practice, the issue of where lawyers can work is escalating as a growing concern.

“Clients—from the biggest companies in the world all the way down to a mother in Wichita looking for a divorce—have need for their lawyers to more freely practice across jurisdictions. [My firm] has clients who routinely source the goods they sell in China,” Pera says. “[At APRL], we see these problems daily. The overwhelming sense of the people in APRL is that all these rules are way too restrictive.”

Are rules related to MJP due for a revision?

While the Uniform Bar Exam provides some opportunities for mobility for new lawyers who pass the bar in a UBE jurisdiction to potentially gain admittance in other UBE jurisdictions, such opportunities for established lawyers are fewer, Pera says. (For more information about the UBE, see “Breaking barriers: In a changing profession, what is the impact of the Uniform Bar Examination?” Bar Leader, September-October 2019.) Although modifications to Rule 5.5 of the ABA Model Rules for Professional Conduct opened doors for states to allow multijurisdictional practice, those changes were approved about 20 years ago—before the launch of LegalZoom, RocketLawyer and other legal marketplace disrupters.

In one week alone, Minkoff says, his firm was faced with two thorny multijurisdictional cases, which is more frequently becoming the norm.

“We’re realizing now that as useful as [modification of Rule 5.5] was, it has left gaps, particularly given the technology that is so much better than it was 20 years ago,” Minkoff says. “As firms get bigger, as their reach gets broader, the big firms, in particular, are seeing the problems with the rules and know that we need to make some changes.”

From her post as executive director of the Illinois Supreme Court Commission on Professionalism—and as a member of APRL’s Future of Lawyering Committee—Jayne Reardon is also seeing the pressure build for rules changes to facilitate MJP.

“There are pressures on the lawyer side, as well as a lack of service on the consumer side,” she says. “That’s only going to intensify and lead to exploration of ways to let the steam out of this situation and allow lawyers to better serve clients and for clients to get better service.”

The relatively quick and widespread acceptance of the UBE—37 jurisdictions on board in the past nine years, or scheduled to be soon—is evidence that change is being embraced in the profession, she says, and that more is likely on the way. The nascent work of bars and the courts in Utah, Arizona and Illinois, she adds, also shows how they can lead the way in kick-starting discussion and exploration of change.

“[Bars] should be studying the effects of the UBE in terms of aiding cross-border practice and attorney movement between jurisdictions,” Reardon says. “Bar associations could perform this service by studying what would benefit their membership, particularly at the borders.”

Bars cooperate across state lines, welcome nonresident members

Many bars are already moving toward a less rigid view when it comes to state lines. In North Dakota, a joint CLE program between the State Bar Association of North Dakota and the Minnesota State Bar Association two years ago attracted dozens of members from both states—including lawyers with dual memberships―to the University of North Dakota School of Law, according to Tony Weiler, executive director of the North Dakota bar. He hopes to have another joint program soon.

With the largely rural state still in the midst of an oil boom, Weiler says, there is little concern about the challenges of MJP and related unauthorized practice of law concerns. “In six and a half years, I’ve never had a lawyer come up to me and say, ‘There are too many lawyers in North Dakota. Stop letting people in,’” he notes.

Several state bars reach out to lawyers in other states with programs and benefits, making sure that their nonresident members know that they’re not just an afterthought. That’s important to Emily Kelchen, a New Jersey resident and chair-elect of the New Jersey State Bar Association Young Lawyers Division. She graduated from the University of Wisconsin-Madison Law School and is a member of the integrated State Bar of Wisconsin—where she sits on the board of the Nonresident Lawyers Division.

Wisconsin is a state that offers diploma privilege, which means that if someone graduates from a Wisconsin law school but plans to primarily practice in another state, they can also be admitted in Wisconsin without taking the bar exam there. Kelchen says the Wisconsin bar goes the extra mile to make its nonresident members feel included and welcome.

“It’s really easy to stay involved there, and they provide great services. That’s what bars need to focus on,” she says. “That’s a great way to serve your member base and to recognize that your lawyers here aren’t just practicing in [one state]. Our clients are demanding that we practice in more states, so we’re doing so.”

While there will always be state regulatory concerns about lawyers practicing in other states, she adds, bars need to understand the modern demands of the profession and respond accordingly. “They exist to serve their members, and they exist to serve the profession,” she says. “And when they keep their eye on that, then that’s how they can help attorneys from out of state.”

A leadership role for bars

Whether they are integrated or voluntary, bars will also face challenges as the profession evolves. Balancing the needs of members and growing the organization, while also serving the public interest (which may include determining the best way to acknowledge and work with nonlawyers who are affiliated with the legal profession) will likely be chief among them, observers say.

“Some bars in their mission statement say that they serve and/or protect the public, foster access to justice, and the like. Some bars, in my opinion, operate much more like [they are] protecting the guild,” Reardon says. “Bar leaders need to figure out how to be leaders, and not just leaders of the status quo.”

As more citizens turn away from lawyers and toward online legal service providers—and often don’t turn back—the case that opening up MJP rules is anti-consumer is becoming weaker and weaker, according to Pera.

“We have an obligation to put consumer protection first,” Pera says. “To me, that’s not really very complicated, and it seems to me that every bar, every state bar, every integrated bar, every voluntary bar ought to have that as their goal because—in case you haven’t noticed—the market is broken. There’s a reason that regulatory reform is being talked about.”

But fear, adds Reardon, also continues to be a factor among many in the profession—and, by extension, bars—with concerns about lost business in an increasingly deregulated environment. John Lund, a past president of the Utah State Bar and co-chair of the Utah Work Group on Regulatory Reform, has seen and heard that fear directly.

While talking to rural Utah lawyers about the work group’s August 2019 final report that suggested the creation of a new “regulatory sandbox” to possibly ease rules of professional conduct to test concepts such as nonlawyer ownership of legal firms, Lund was told that such ideas could put lawyers out of business.

He has tried to reassure them, he says, by explaining that the proposed rules changes would occur in a limited testing environment. Data would be gathered to see if the changes were really beneficial to consumers―and if they weren't, they would not exit this pilot phase and be fully implemented. 

“It’s a pretty controlled opening-up of the opportunity to explore different ways,” he says.

Ultimately, Lund and others say, it is incumbent on bars to work with their state courts and to work across state lines to help set the future course of the profession, rather than risk having it set by outside forces.

“The next 10 years will see very significant change,” Pera says. “Some of this will be driven by regulators like Utah, Arizona and Illinois. But they’re not the main drivers. The main driver here is the market, and it’s changing without regard to what the rules are.”

Minkoff says how the New York State Bar Association and the New York County Lawyers Association worked with the ABA and online legal document providers to create the ABA Best Practices Guidelines for Online Legal Document Providers (approved by the ABA House of Delegates in August 2019) is an example of how bars can provide leadership in addressing the inevitable changes in the profession.

“We need to talk about, how are we dealing with the fact that we’re in the 21st century, we have 21st century technology, and an 18th century structure for lawyer regulation?” he says. “We have to be the leaders, and we have to find a way to do it with declining membership and declining revenue because nobody else is going to do it.”

That idea, he adds, is not so extreme.