Section of Antitrust Law Comments on Interim Report - Center for Professional Responsibility

March 13, 2002

TO:

ABA Commission on Multijurisdictional Practice

FROM:

Section of Antitrust Law

RE:

Comments on Interim Report

The Section of Antitrust Law is pleased to provide these comments to the Interim Report of the Commission on Multijurisdictional Practice ("MJP Commission").

Interest of the Section

As stated in our initial comments dated January 22, 2001 –

The Section of Antitrust Law comprises nearly 9,000 private practitioners, corporate counsel, federal and state enforcement officials, academicians, and judges interested in antitrust, economic competition, and consumer protection laws and policy. Its members generally have client interests and enforcement responsibilities that span state – and, indeed, international – borders.

The diversity of Section membership provides a variety of vantage points on these issues: as lawyers in private practice competing to provide services to clients; as corporate counsel both directly providing and purchasing legal services for multistate and multinational corporations; as federal enforcers conducting nationwide investigations and litigation; as state officials keenly concerned with protecting consumers and seeing that they enjoy the benefits of free competition; as academicians who may be called for advice from anywhere in the country; and as judges before whom lawyers appear from across the nation.

Section members are keenly interested in multijurisdictional practice issues, both as a matter of general policy and as those issues affect their own practices.

In that statement of preliminary views on multijurisdictional practice, we urged the Commission –

to recommend that the ABA promote measures to facilitate the multijurisdictional practice of law in order to enhance competition and to afford consumers – i.e., clients – the greatest freedom to choose from whom to obtain legal services and to obtain the most competent representation possible, consistent with preserving legitimate state interests in protecting the public from incompetent legal representation and unethical lawyer conduct.

Summary of Position

The Antitrust Section commends the MJP Commission for its work in this important arena, and for its active solicitation of views from all segments of the bar.

In summary, the Antitrust Section (1) supports most of the recommendations in the Commission’s Interim Report, (2) takes no position on certain proposals, and (3) opposes and urges the Commission to reformulate its recommendation on temporary transactional work and counseling outside the jurisdiction in which the lawyer is licensed, in order to promote consumers’ ability to obtain legal services, on a temporary basis, from competent counsel of their choosing, and to enhance competition in the provision of such services.

1. The Section Supports Most Recommendations

The Section of Antitrust Law actively supports the following recommendations in the Interim Report: paragraphs 2, 3 (except Proposed Rule 5.5(c)5 ), 4 – 6, 9 – 14. These references are to the numbered paragraphs in the Preface to the Interim Report.

2. The Section Takes No Position on Certain Recommendations

The Section of Antitrust Law takes no position on the following recommendations in the Interim Report: paragraphs 1, 7, 8, 15.

3. The Section Opposes and Urges Reformulation of Recommendation 3.5

The Antitrust Section believes Proposed Rule 5.5(c)5 is too narrow and unduly inhibits the choices available to consumers of legal services. That recommendation urges the ABA to adopt a Model Rule that would permit, on a temporary basis, a lawyer to render non-litigation services outside the lawyer’s home state "when reasonably related to legal work that is performed in and has a close connection to the lawyer’s home state." The Commission spells out this limitation:

Specifically, the work outside the lawyer’s home state would have to be on behalf of a client who is in the lawyer’s home state (e.g., in the case of an individual, the client resides in the jurisdiction, or, in the case of an entity, the client has an office in the jurisdiction), or arise out of or be reasonably related to a matter that has a substantial connection to a jurisdiction in which the lawyer is admitted to practice law.

Interim Report at 25.

The Antitrust Section opposes restricting clients’ choice to lawyers licensed in their state of residence or in states with a "substantial connection" to a particular matter. Many lawyers, especially in the Antitrust Section, have developed national and international reputations and are called upon by clients and prospective clients throughout the country to provide services on a temporary basis. Although much of the work relates to federal antitrust and consumer protection law, or international competition law (which the Commission agrees should be included in the proposed safe harbor), clients also seek out lawyers across the country for advice under state antitrust, unfair competition, consumer protection, and other trade regulation statutes. The proposed limitations would adversely affect competition, unnecessarily limit client choice, and interfere with ongoing client relationships.

As stated in our initial comments, the Section supports the formulation of safe harbors in Section 3 of the Restatement of the Law Governing Lawyers (2000):

A lawyer currently admitted to practice in a jurisdiction may provide legal services to a client:

(1) at any place within the admitting jurisdiction;

(2) before a tribunal or administrative agency of another jurisdiction or the federal government in compliance with requirements for temporary or regular admission to practice before that tribunal or agency; and

3) at a place within a jurisdiction in which the lawyer is not admitted to the extent that the lawyer’s activities arise out of or are otherwise reasonably related to the lawyer’s practice under Subsection (1) or (2).

The Section believes the Restatement § 3 approach, amplified by the Comments and Reporter’s Note, protects the client’s ability to choose counsel from those admitted in various jurisdictions.

Conclusion

The Section of Antitrust Law appreciates this opportunity to comment on the Interim Report, and repeats its offer to assist the MJP Commission in promoting ethical rules (including reformulation of Proposed Rule 5.5(c)5) that will provide clients the greatest freedom in obtaining the services of counsel of their choosing.

CH01/12213892.1