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Statement On Behalf Of American College Of Construction Lawyers To The ABA Commission On Multi-Jurisdictional Practice

We believe that the central issues raised by the Multi-Jurisdictional Practice debate is whether the client has the right to select the lawyer or law firm of the client's choice. The American College of construction Lawyers (ACCL) supports the position that the client should be free to select the lawyer of the client's choice and that that lawyer should be free to represent the client in any jurisdiction, with appropriate safeguards to assure that the lawyer is properly licensed in his/her jurisdiction, that the lawyer's conduct is ethical, and that the lawyer is subject to sanctions for any ethical violation.

The ACCL has approximately 125 members from over 35 states who have devoted a significant percentage of their legal practice in the construction industry for at least 10 years, have contributed to the profession and the industry in meaningful ways, and have been acknowledged by their peers as being among the very best who represent clients in matters related to the construction industry. While most members are in private practice, some of our members are employed by owners, designers, and contractors. Clients represented by our members include owners, private and public, developers, construction lenders, general contractors, suppliers, subcontractors, architects, engineers, surety companies or insurers, among others. The members of the ACCL represent all segments of the construction industry.

The ACCL, as a organization,, considers itself a "friend of the construction project." The ACCL does not take public positions in support of any one interest. This statement on behalf of the ACCL is the first time the ACCL has taken a position on an issue in its 13-year history. At our recent annual meeting, the members were unanimous in support of making a statement.

While construction law is generally recognized as being its own area of expertise, lawyers who practice in the construction industry typically address a wide range of legal issues such as contract law, public financing, private financing, project financing, licensing, real estate, bankruptcy, suretyship, insurance, and dispute resolution.

The construction industry has been a leader in developing and sponsoring arbitration, mediation, and other ADR techniques. The members of the ACCL are frequent participants in such procedures, acting as mediators and arbitrators, and representing clients in mediation and arbitration, and serving on dispute review boards and similar bodies. The construction industry has also been a leader in developing standard forms ( e.g. AIA and AGC) for use on projects and these forms are frequently employed in many jurisdictions by national clients with offices and projects throughout the United States and its possessions.

There are many significant projects which attract contractors, lenders, general contractors, suppliers, and subcontractors, architects, engineers, or sureties and insurances from a number of jurisdictions. It is common for our members to provide advice to such clients in multiple jurisdictions with regard to contract terms, financing, insurance, disputes and other similar issues. When issues which are primarily local ( e.g. licensing, zoning, etc.) arise, our members routinely seek advice, or advise the client to seek advice, from a local lawyer. However, it is normal for many of our clients to want one or more of our members to be involved generally wherever the project may be being built.

The needs of the clients for whom our members work or represent require that our members provide advice with regard to projects in many jurisdictions. Our members have high professional and ethical standards and believe the proposed amendments to Model Rule 5.5 were not only appropriate, but essential. We join with the Business Sector of the ABA in urging that the "safe harbor" for transactional matters be defined to be based on the experience of the lawyer and the need of the client and not limited to matters for clients located in the jurisdiction of the lawyer or that the position espoused by the restatement of the law governing lawyers be adopted and incorporated.