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Comments of the Council of the Section of Legal Education and Admissions to the Bar on the Interim Report of the ABA Commission on Multijurisdictional Practice

February, 2002

The Council of the Section on Legal Education and Admission to the Bar has considered the interim report issued by the Commission on Multijurisdictional Practice. The Council commends and supports the Commission in the approach taken regarding accommodation of the views advanced by various segments of the legal profession. In reviewing the interim recommendations of the Commission, the Council was guided by positions previously adopted by the Council, specifically that the requirement of graduation from an ABA approved law school as a prerequisite to admission to the bar be retained and that the states retain the authority to license and regulate attorneys and the practice of law.

Concern for improving the competence of those entering the profession was one of the primary reasons for the creation of the American Bar Association in 1878. The ABA and the Council remain vitally and actively interested in improving the profession through legal education. Law schools are the gateway to the legal profession and the accreditation standards promulgated by the Council on Legal Education and Admissions to the Bar are minimum requirements designed, developed, and implemented for the purpose of advancing the goal of providing a sound program of legal education. They encompass a basic education curriculum, an understanding of an attorney's ethical responsibilities, and an understanding of the law as a public profession calling for performance of pro bono legal services. Accommodations for the multijurisdictional practice of law must recognize and preserve these basic principles and goals.

Keeping these principles in mind, the Council submits the following comments for the Commission’s consideration.

Recommendation No. 1: The ABA should affirm its support for the principle of state judicial licensing and regulation of lawyers.

The Council supports this recommendation.

Recommendation No. 2: The ABA should amend Rule 5:5(b) of ABA Model Rules of Professional Conduct (Unauthorized Practice of Law) to provide that, as a general rule, it is not the unauthorized practice of law for a lawyer admitted in another jurisdiction to render legal services on a temporary basis in a jurisdiction in which the lawyer is not admitted if the lawyer’s services do not create an unreasonable risk to the interest’s of a lawyer’s client, the public or the courts.

The Council opposes this recommendation for a number of reasons. The provision does not require that the multijurisdictional work be performed for an existing client, allows a lawyer to advertise for clients in the unlicensed jurisdiction, does not require graduation from an ABA approved law school, and undermines a state’s ability to regulate the practice of law within its jurisdiction.

As the comments to the proposed amended rule acknowledge, there is no single test or other definition of "services on a temporary basis" and no formula for determining whether a category of conduct would give rise to an "unreasonable risk" to the interests of the public, courts, or clients. The recommendation also suggests that an attorney could appear in court without court or state permission. Without definition of these terms, the recommended rule is virtually unenforceable. Because it is so subjective and vague, consistency in its application would be difficult at best and any disciplinary action would be subject to claims of arbitrary and capricious application, denial of equal protection and a host of others. Under these circumstances, the proposed rule will have the effect of allowing the wholesale practice of law by a lawyer not licensed in the jurisdiction.

The Commission’s discussion of this recommendation seems to suggest that the recommendation is merely a statement of a "general principle" underlying the specific "safe harbors" identified in the following subsection of the proposed Rule. However, as written, the "general principle" is itself a standard of allowed practice which, if adopted, negates the need for the more specific safe harbors. The Commission’s statements in its discussion of the "safe harbors" in Recommendation 3 acknowledges that these "safe harbors" are meant to eliminate "substantial uncertainty" under the general principle but that they will not "eliminate all uncertainty." In fact the Commission states that it "is not possible by artful drafting to eliminate all uncertainty." Under these circumstances, the adopting of specific "safe harbors" that provide certainty may be justifiable, but adoption of the general principle as a rule of practice is not.

Recommendation No. 3: The ABA should adopt proposed Model Rule 5.5(c)-(e) to identify "safe harbors" that embody specific applications of the general principle stated in Recommendation 2; to identify other "safe harbors;" and to make clear that, except where authorized by law or rule, a lawyer may not establish an office, maintain a continuous presence, or hold himself or herself out as authorized to practice law in a jurisdiction where the lawyer is not licensed to practice law.

Recommendation No. 3.1 – Amended Model Rule 5.5(c)(1) – allow work as co-counsel with a lawyer admitted to practice in the jurisdiction.

The Commission qualifies this proposal by indicating that the local counsel may not be merely a conduit for the out-of-state lawyer. The Council concurs with this proposal as modified.

Recommendation No. 3.2 – Amended Model Rule 5.5(c)(2) – allow lawyers to perform professional services that any non-lawyer is legally permitted to render.

The Council has no objection to this recommendation.

Recommendation No. 3.3 – Amended Model Rule 5.5(c)(3) – allow lawyers to perform services that "are in or reasonably related to a pending or potential proceeding before a tribunal or administrative agency held or to be held in this or another jurisdiction, if the lawyer is authorized by law or court or agency order to appear in such proceeding or reasonably expects to be so authorized.

The Commission in its commentary indicated that this proposed amendment would also allow the provision of legal services in the host jurisdiction by all "subordinate lawyers" who were not licensed in the host jurisdiction and did not anticipate being admitted pro hac vice but were under the direction of the lead attorney. The Council observes, however, that the proposed rule itself does not cover this situation.

The Council recommends that the proposal be amended to delete the language allowing legal services in matters that are "reasonably related" to the pending or potential litigation and substitute the phrase "arising from." The Council believes this change allows greater definition to its application without unduly limiting the intent of the proposal. With this change, the Council supports this proposal.

Recommendation No. 3.4 – Amended Rule 5.5(c)(4) – allow the provision of legal services that are in or reasonably related to pending or potential arbitration, mediation or other alternative dispute resolution setting held in the host jurisdiction or another jurisdiction.

The Commission in its commentary explained that choosing the site of an arbitration is often not related to the law of that site and often is picked precisely because neither party has any connection with the site. The commentary also stated that this provision would not apply to court-annexed arbitration, mediation or other alternative dispute resolution. The Council notes however, that this exception is not embodied in the rule.

The Council has grave reservations about this proposal. First, the Council again suggests that the "reasonably related to" language be replaced with "arising from" to better define the application of the proposal. Next, the Council observes that whether any of the alternative dispute resolution mechanisms will be used is often unknown to the litigants and the attorneys at a time when legal services are being provided. Thus virtually every dispute could fall into this category. Additionally, the site of the alternative dispute resolution proceeding is not limited to the host state or the state in which the attorney is licensed. The Council recommends that the suggested rule be amended to apply to alternative dispute resolution matters that are pending or "impending" rather that "potential.

The Council would support the proposal if the above amendments are adopted.

Recommendation No. 3.5 – Model Rule 5.5(c)(5) – allow the provision of transactional representation if the client has an office or resides in the jurisdiction in which the lawyer is licensed to practice or if the services arise out of or are reasonably related to a matter that has a substantial connection to the jurisdiction in which the lawyer is licensed to practice.

The Council suggests that the phase "reasonably related to " be deleted for the reasons stated in the previous sections. With this change, the Council supports the proposal.

Recommendation No. 3.6 – Model Rule 5.5(c)(6) – allow the provision of legal services when the matters are primarily covered by federal law, international law, the law of a foreign nation, or the law of the jurisdiction in which the lawyer is licensed to practice law.

The Commission explained in its commentary that these "specialty" law areas transcend geography and "specialist" lawyers should be able to practice their "specialty" with the benefit of a "safe harbor." Nevertheless, the Council concludes that the proposal as written is too broad. Allowing representation for "federal law" and host state law covers a wide range of jurisprudence and is not in the nature of a "specialty practice." The Council recommends that this proposal be limited to lawyers providing services relating to international law and law of a foreign nation.

Recommendation No. 3.7 – Model Rule 5.5(d)(1) – allow an attorney who is an employee of the client or its affiliates to provide legal services to that client unless pro hac vice admission is required.

The Council is concerned that the ability of an attorney to become an "employee" of the client can be too easily abused. The proposed rule or commentary should clearly define the nature of the employment relationship. If the rule is so revised, the Council supports the proposal.

Recommendation No. 3.8 – Model Rule 5.5(d)(2) – allow the provision of services in the host jurisdiction when granted authority to do so by federal law or the law or rule of the host state.

The Council endorses this proposal.

Recommendation No. 3.9 – Model Rule 5.5(e) – statement that a lawyer not admitted in the host jurisdiction may not establish an office or a permanent presence or represent or hold him or herself out to the public that the lawyer is admitted to practice law in the host jurisdiction.

The Council supports the proposal.

Recommendation No. 4 - The ABA should endorse a model "admission on motion" rule consistent with that proposed by the Council.

The Council has endorsed an amendment to its proposed model rule that eliminates the requirement that the applicant have been admitted "by bar examination," rather than, for example, by diploma privilege. A revised draft of the proposed model rule is attached. As amended, the Council endorses this proposal.

Recommendation No. 5 – The ABA should encourage states to adopt rules governing foreign legal consultants.

The ABA and the Council have previously endorsed the model foreign legal consultants rule.

Recommendation No. 5.1 – adopt provisions allowing for the provision of temporary legal services by the foreign legal consultant consistent with the Commission’s recommended changes to Model Rule 5.5.

The Council has grave reservations about this provision because the temporary legal services are not limited to those involving foreign law or foreign proceedings.

Recommendation No. 6 – endorse a model rule for pro hoc vice admission.

The Council endorses this proposal.

Recommendation No. 6.1 – renew efforts to implement the position of the ABA taken in 1995 that membership in state bar be eliminated as a requirement for practice before the United States district courts.

The Council takes no position on this recommendation.

Recommendation No. 7 – amend Rule 8.5 of the Model Rules of Professional Conduct relating to disciplinary and choice of law and adopt measures to enhance regulation and disciplinary enforcement for lawyers engaging in multijurisdictional practice.

The Council supports the general principle embodied in this recommendation, but implementation of multijurisdictional practice will require substantial further development of the disciplinary rules as well as the financial implications of reciprocal discipline.

Recommendation No. 7.1 – amend Rule 8.5 to better address multijurisdictional practice.

Recommendation No. 7.2 – amend Rules 6 and 22 of the Model Rules of Disciplinary Enforcement to promote disciplinary enforcement for lawyers who engage in multijurisdictional practice and renew efforts to get states to adopt Rule 22 providing for reciprocal discipline.

Recommendation No. 7.3 – the ABA should take steps to promote interdisciplinary enforcement mechanisms.

The Council endorses these proposals. The Council agrees that the local jurisdictions need all available tools to regulate lawyers in this type of practice and the National Data Bank may be necessary for this purpose. The Council endorses this proposal in principle but suggest that considerably more study is needed regarding this aspect of multijurisdictional practice.

Recommendation No. 8 – establish a permanent coordinating committee on multijurisdictional practice to monitor changes in law practice and the impact of regulatory reform and identify additional needed reform.

The Council suggests that rather than a permanent committee, the issue be revisited in a given number of years. This would allow an independent perspective of the development. A permanent committee discourages experimentation among the states to find the most workable solution.

Attachment: Revised Proposed Model Rule on Admission by Motion