- Is the Association of Professional Responsibility Lawyers’ proposal for a revised Model Rule 5.5 on its way, or DOA?
At a recent meeting of the American Bar Association’s Law Practice Division Ethics and Professionalism Committee, nearly an hour was spent discussing and debating the April 2022 proposal from the Association of Professional Responsibility Lawyers (APRL) for revisions to Rule 5.5 under the Model Rules of Professional Conduct (RPC). Among those debating the two sides of the proposed revisions were esteemed colleagues Charity Anastasio and Micah Buchdahl, who thought that a point-counterpoint in Law Practice Today would allow readers to pick a side. And while we did reference the famous Dan Ackroyd-Jane Curtin point-counterpoints of Saturday Night Live legend in discussion, we’ll keep things civil and politically correct here. We are a family-friendly webzine.
Charity Anastasio (CA) is practice and ethics counsel for the American Immigration Lawyers Association (AILA), where she coordinates practice management and ethics resources and consults with AILA members. She is a member of the ABA Center for Professional Responsibility and the Law Practice Division.
Micah Buchdahl (MB) is an ethics attorney focusing on issues pertaining to marketing, advertising and solicitation compliance for law firms. He is the ethics issue editor of LPT and a member of the Association of Professional Responsibility Lawyers.
CA: Multijurisdictional practice has been debated for decades. The argument that a license to practice law should be issued by states and only be valid for the issuing state goes something like this: Law is local. Knowing the statutes and case law is only part of it; understanding the judges, magistrates, agencies, and community texture is also important. Therefore, competence must be local. Hence lawyers can only practice state law in the states they are barred in.
But by now, there are enough case studies of barred attorneys practicing law proficiently from afar and of helping clients globally from their living room, that the general premise has been called into question. Following a California case where New York lawyers weren’t allowed to collect fees from their California clients because they had been practicing outside their jurisdiction, and another where Montana censured a lawyer for trying to help a family member from his office in another jurisdiction, not to mention a pandemic where many packed up and practiced at the homes of their ailing parents or abroad, for example, we see this issue as ripe for question.
MB: It is precisely that debate and those issues that remind me of two things. First, the ABA Model Rules are just that—model rules. While they are followed and adopted in significant detail by a majority of states, there are nuances, comments and additional ethics opinions that often morph them into something different, something very state-specific. It is not just about knowing the “locals,” but knowing how leadership in most state and local bars act—this is our space, and nobody is going to tell me how to run it. Also, you better be licensed here, or watch out.
You are correct in referencing the changing landscape of the workplace. Also, the need to work from home or someplace else due to family obligations, but those are different. And these changes in where people work from are not unique to the practice of law. It is true that I may not want to pay New York state taxes if I’m sitting in Virginia doing something that might have previously been conducted in an office from Midtown Manhattan. But you still should need the same licenses and follow the rules of the proper jurisdiction, regardless of where you physically sit.
CA: Enter APRL, who put forth a new RPC 5.5—one that permits a lawyer barred in the United States to practice in any state or territory in the union, so long as they have disclosed where they are, in fact, barred, and not held out that they were barred in a state they were not. This is an elegant solution that mimics what lawyers practicing in exclusively federal practice areas have been doing for decades. The ABA and individual states should be clamoring to adopt it.
MB: Who is APRL or the ABA to tell me how to run things in my state? That’s a rhetorical remark. One of the things we learn in being hyperactive in the legal profession (as we both are bar junkies) is that we often deal with an array of fiefdoms and silos. States are no different. We’ve seen some extremely serious political issues play out in the past few months—with discussion as to who could dictate a decision—the U.S. Supreme Court? The federal government? Or do you leave things up to the states to decide? In this case, where states clearly rule, the judiciary and/or state bar is not about to capitulate oversight to someone else.
CA: Micah, you ignorant Phillies and Eagles fan. Just because you are winning today does not mean you won’t go on a crazy losing streak tomorrow. Think about this…the notion of competence being irrevocably tied to geographic location is obsolete and unnecessary. Where you practice doesn’t need a direct correlation to where you sit, and it hasn’t for a long time. We saw the advent of online legal research, then e-filing (most courts), videoconferencing, and then virtual court hearings and trials. Each step brings into relief more how easily we can practice law from anywhere. There are challenges, pros and cons to both models, but there is no point where the in-person model comes out always on top. Even if it did, it shouldn’t stop a lawyer barred in another state from becoming proficient in practicing in another state, even if they must take a train, plane, automobile, or bicycle there.
MB: It is true that technology has changed the way we practice law. Yes, you can e-file and research from anywhere. You can even conduct a trial while sitting in your jammies (with a suit and tie above the waist). It is not about in-person, but about jurisdiction and turf. I might like to practice Pennsylvania law from a beachfront condo in St. John one day, but the expectation is that I’m still licensed in PA, following PA law, and potentially wading through a system that is PA-specific. I will admit that at the core of my practice are the variables in the RPC from state to state—and it is central to my ethics practice, but I also have seen enough to know that nobody is telling, let’s say New Jersey—how they are going to do things.
CA: New Jersey is a choice example. It’s a state that has been resistant to lawyers from outside the state for years, even when they should be welcomed. But fiefdoms or not, APRL’s rule offers states more authority and clarity, not less. The proposed rule still bars those who are suspended or disbarred in any state from practicing in a different state—no loophole for a disciplined lawyer to skip town and open up shop in a state next door to continue similar ill-conceived ventures. And it still says lawyers can’t help another commit the unauthorized practice of law. States will still define what the practice of law is, as they always have, so your fiefdoms have not actually lost any authority.
MB: It is already difficult to enforce discipline across state lines. When it comes to UPL, half the battle now is dealing with non-lawyer business entrepreneurs either practicing law or coming darn close. In many of those instances, we need help from state entities beyond the bar. So I applaud making sure you can’t just jump from state to state if you engage in wrongdoing. But who then is really going to regulate misconduct? I don’t see APRL providing the framework for a national entity that would or could dole out discipline, chase down UPL violators and take away a practitioners’ license.
CA: The states would still dole discipline as they always have. My crystal ball says they wouldn’t have any more discipline cases. But this is the real clincher: Client choice is a cornerstone of the practice of law, and so it should be in multijurisdictional practice decisions. APRL’s memorandum lays this point out astutely. Let the clients be the decision makers, as they always have been. Clients can choose whether to stay or go with a lawyer changing firms, can waive all but the most explicit conflicts of interest with sufficient information, can consent to different lawyers outside the firm working on their case, and be the deciding vote on all lawful means to reaching their goals. Why then can’t the client choose a lawyer they feel connected to and trust, just because they are barred in a different state than the client’s current legal issue?
MB: True, the client is king. But I’ve also closely watched the impact on lawyers as the practice of law has dealt with Big Law getting bigger and globalization becoming wider. Believe it or not, there used to be RPC provisions that were designed to protect the Main Street sole practitioner from losing business to the big city firm. Then it was the big city firm losing business to the mega national firm. And then losing business to accounting firms, the LegalZooms of the world, and a variety of other mechanisms supposed to provide greater “access to justice”—but not really. The profession has never wanted to trust the client too much to make an educated decision—that’s what our JDs are for.
CA: Artificial boundaries do nothing to ensure clients are protected from incompetent counsel, and much to separate clients from affordable counsel in certain geographic areas of the country. In a large state like Washington, where over 46,000 lawyers are barred, representation is still difficult for clients in small rural counties east of the Rockies. What’s more, some in those communities would possibly have more in common with their neighbors in rural Oregon and Idaho, and very plausibly prefer legal representation from those communities, because of price point and cultural norms. Yet the bulk of Washington lawyers can be found along the I-5 corridor, predominantly in Seattle, Bellevue, Tacoma, and to a lesser degree, Olympia and Bellingham. Let the clients of Spokane, Wenatchee, and Colville seek lawyers in Coeur d'Alene, Idaho if they wish. More importantly, let them select from a wider pool of lawyers if they choose.
MB: Boundaries are not artificial. And, yes, there are plenty of incompetent counsel to choose from regardless of where you live. I’m not going to debate which states function in which way, except to say that I think the current state of things in our country does not suggest anything resembling a united front.
CA: No, it’s not united, and that’s why client as king should win out here. The enforcement of interstate UPL has generally been selective and self-serving. Small states have a bias against bigger state neighbor lawyers coming in and taking their cases and clients. There are “unfriendly” states who deem their larger neighbors almost as invaders, because of sheer numbers. But protectionary behavior isn’t appropriate, nor does it protect the lawyer’s market share. Finally, it’s bad for justice. More competition in the market will cause all lawyers to be held to a higher standard.
MB: Charity, you’ve been numbed by watching bad baseball and football in DC. And you should’ve known when you agreed to this debate that it would be loaded with sports references. No question there are friendly and unfriendly states. Those interested in cooperating and those not. In many cases, and I am avoiding naming names, there are states that would be overrun by out-of-state attorneys if there was no such distinction. Ok, maybe I will name a name or two. How many lawyers would now be “practicing” in Florida if they could? How about the uniqueness and authority of Chancery in Delaware? Or people catching Broadway shows while “practicing” in New York City. California too—lots of great places to hang your hat. You can’t just get a law degree and a license of some sort from somewhere. Not to mention lots of fees to generate. And there is still pro hac vice, when appropriate.
CA: Micah, you know I don’t watch baseball. You just say such things to rile me. And the slippery slope argument that it will result in a massive landslide of incompetent lawyers flooding key (lovely) states and causing disciplinary counsel to work really hard to police people they don’t have control over is ridiculous.
MB: Is it? Really? Look, there are states that are gung-ho on discipline and others that have to look the word up in the dictionary.
CA: First off, states generally do have jurisdiction over out-of-state and foreign lawyers under Rule of Professional Conduct 8.5, Disciplinary Authority; Choice of Law. The ABA Model Rule 8.5 says the barring state always has jurisdiction, and a state where a lawyer is not admitted, but “provides or offers to provide any legal services in this jurisdiction” is also under the state’s jurisdiction. A handful of states and territories have differing language that gives them no jurisdiction or attributes it only to lawyers barred there: Alabama, District of Columbia, Kansas, New York, Northern Mariana Islands, Puerto Rico, and Texas. Most recently, Hawaii changed their RPC 8.5, to be more in line with the model rules and to give their disciplinary counsel the power to bring actions against lawyers practicing there who are not barred there. If the proposed 5.5 passes, these outlier states will likely need to also modify their RPC 8.5 to expand jurisdiction to anyone practicing there. But those are easy fixes.
MB: Easy fixes? These are states that are still figuring out how to implement changes from the Ethics 2000 Commission. My kids were not even born yet. One is now in college. You provide detailed, cited arguments. But we live in 2022—and I can respond with a few words and if you were already on my side, you’d vigorously shake your head in approval.
CA: I get it. I know, lawyers move like molasses in a snowstorm. But, honesty, I’m tired of calling us stodgy. This is our chance. If the rule is approved by the ABA and states decide to adopt it or a version of it, some states will see more practitioners and other states will see less. But there are enough test cases to see that it won’t end up creating a flood of ill-advised outside counsel unable to research and bumble their way through cases in a local setting. Lawyers will do what they have always done—their job, a.k.a. research—to represent their clients competently. The military spouse carve-out in Kentucky showed there was no flood of discipline cases. But that is a small sample size. A better comparison are the thousands of federal practitioners, especially immigration lawyers who are worldly and have worldly clients. They are practicing U.S. immigration law in every jurisdiction in the United States and across the globe, without a landslide of discipline problems swamping state disciplinary systems.
MB: I understand the comparison to federal practitioners. And immigration law is a good example. It is where you live. But the reference to some states seeing increases and others decreases could pose quite a dilemma. Does it not open up some sort of equivalent to massive venue shopping? Might some states simply go out of business? I agree with you that good lawyers will still be good lawyers. But we all know that “local” is “local” for a reason—and if you think “local counsel” is going away quietly, you’ve got another thing coming.
CA: Disciplinary counsel worry that they will have too many cases to deal with, but they will actually have more clarity about where a lawyer is barred, and it will reduce costs of disciplining for something that isn’t justified or important. With this new rule, every lawyer will be explicit about where they are barred, leading clients and others to know more appropriately with what authority the lawyer practices and where to bring bar complaints. It will result in better information to everyone about what a license means. Finally, it aligns with the way clients see lawyers, instead of the way lawyers see lawyers. That can only be good.
MB: I work with lawyers from time to time that don’t seem to know where they would, could, should or can’t practice law. Sometimes it takes that letter from disciplinary counsel to jar his or her memory. I also talk to prospective clients all the time and need to explain that although I live in New Jersey, I’m licensed to practice law in Pennsylvania. I’ll give in to you on that clients see us differently than we see each other, but a bunch of the RPC is based (maybe not officially, but in my estimation) on clients not being trusted to know how the law of the land truly functions.
CA: Artificial boundaries don’t protect clients. Bar exams don’t guarantee competence to practice, nor do bar association memberships. Pro hac vice and reciprocity rules could have been an answer, but they have grown into unwieldy, rigid, and expensive processes that don’t solve obvious problems. For example, an immigration lawyer who has assisted a whole family in several steps toward their legal status to live and work in the United States, and to eventually become citizens, is not able to help that same family with a simple traffic ticket or probate issue in state court, despite the client’s relationship and trust, just because they are not barred in that state.
MB: We’re on the same page here. But on Pardon the Interruption, it is very annoying when Michael Wilbon and Tony Kornheiser are in complete agreement. It makes for bad television. You are right about the boundaries, 100% correct on the proficiency of bar exams, and we both know plenty of people in bar associations that we would not send our worst enemy to. I’ve never completely figured out pro hac vice myself. But do you really want an immigration lawyer handling a probate issue? And wouldn’t you be annoyed if a probate attorney started trying to give out immigration advice? I barely understand half of what Greg Siskind tells me about immigration law—only that I know he’s going to be right.
CA: I’m snorting with laughter. All true, Micah. Though I will say lawyers could do well to diversify their knowledge base. So long as they associate with another lawyer competent in that area, you know the rules say. Also, states may fairly fear an exodus of their legal minds. But many already experience that brain drain, usually in uneven dispersals across each state. The truth is, if a bar association or community wants active, volunteering, civic-minded lawyers who make up the essential fabric of a community, they need to work towards having a more attractive community, where a (very plausibly) highly indebted lawyer seeking intellectual stimulation and connection can see a future for themselves. Moving into the modern era of working with remote people in innovative ways, creating a good cost of living, and striving to be a more attractive location to live would serve them better than relying on rigid old rules that don’t make sense in the modern world.
MB: I had not even thought about that—and I’ll argue that it works in favor of my argument. Giving back to the community—be it through pro bono, volunteering, or cold, hard cash—is a centerpiece of what makes our profession so great. You give back where you live. You live where you practice. They go hand in hand. Charity, you make compelling arguments. And I hate to admit they are all grounded in facts, research and in a perfect world all make total sense. I’m not saying otherwise. But my often flip comments are grounded too—in reality—and RPC 5.5 is not happening in my lifetime. But I’m past middle age now, so perhaps it will be more realistic in yours. Either way, we have provided lots of food for thought. It will be interesting to see where the debate takes us next.