On The Interim Report Of The ABAs Commission On Multijurisdictional Practice
January 16, 2002
In December 2000, in response to a request by the American Bar Association ("ABA") to review the subject of multijurisdictional practice, The Missouri Bar appointed a Multijurisdictional Practice Committee ("Committee") 1 to do so. After reviewing materials prepared by the ABAs Commission on Multijurisdictional Practice ("MJP Commission"), the proposed changes to the Model Rules of Professional Conduct (commonly known as "Ethics 2000"), materials submitted by various organizations and individuals to the MJP Commission, and several pertinent court decisions, in May 2001, the Committee submitted a report, proposed model rule and commentary to The Missouri Bar Board of Governors ("Board"), which accepted the report and subsequently provided it to the MJP and Ethics 2000 Commissions.
On November 30, 2001, the MJP Commission issued its Interim Report on Multijurisdictional Practice ("Interim Report"). The Board asked the Committee to review the Interim Report and provide comments to the Board on the same. The following are the Committees comments.
In its earlier report, the Committee addressed in some detail the degree to which lawyers already are involved in multijurisdictional practice, and commented on several proposed solutions to the "problem". It would serve no useful purpose to repeat the Committees observations, and interested parties are referred to the earlier report. However, the Committee believes that there are two significant factors that should be borne in mind as one addresses the issue of multijurisdictional practice.
First, lawyers in virtually every jurisdiction already are engaging in the multijurisdictional practice of law, although some may not be aware that they are. Thus, adoption of the rule proposed in the Interim Report or the rule proposed by the Committee in this report should not increase substantially the degree to which lawyers engage in the multijurisdictional practice of law. Adoption of the proposed rule simply will legitimize what in fact is the status quo.
Second, while adoption of the proposed rule legitimizes the status quo and is of benefit to a number of lawyers, one must recognize that the proposed rule also is of substantial benefit to the client -- the person the lawyer is retained to serve. By providing the client with more freedom in the selection of counsel, the rule ultimately reduces the costs incurred by the client for legal services.
III. MJP Commission Recommendations
The Committee applauds the MJP Commission for the significant work it has done on the multijurisdictional practice issue. The MJP Commissions analysis of the issue, and its attempt to obtain meaningful input from all interested parties are commendable. The Committee is in complete agreement with and supports the substance of all of the MJP Commissions Recommendations, subject to the following comments on Recommendations 2, 3, and 8.
Recommendations 2 and 3
Attached as Exhibit 1 is a draft of a proposed rule/statute that the Committee recommends the Board and the MJP Commission adopt. The Committees proposed rule departs from the MJP Commissions rule in several respects. In order that the reader more easily can understand the differences in the two drafts, a redlined version of the MJP Commissions proposed rule is attached as Exhibit 2. The following is a discussion of the more significant changes.
The Committee deleted subparagraph (b) of the MJP Commissions proposed rule for the following reasons.
- The requirement that a lawyers services not create an unreasonable risk to the interests of the lawyers client, the public or the courts is unnecessary and, furthermore, is a standard that is so vague as to be entirely unworkable. Reasonableness is the underlying standard in any case, and the MJP Commissions language suggests that the standard might be something other than reasonableness. Finally, there is no indication as to who is to determine if the risk is unreasonable to the client, at what time the determination is to be made, and so forth.
- The Committee believes it is inappropriate to require that the services described in subparagraph (c)(2) of the MJP Commissions proposed rule be provided only on a temporary basis. As drafted, subparagraph (c)(2) prohibits a lawyer from doing something any non-lawyer can do on a permanent basis.
- As the MJP Commissions rule is drafted, it is not clear whether the situations described in subparagraph (c) still must satisfy the principles set forth in subparagraph (b), or are situations which the MJP Commission has concluded are absolute safe harbors because, in the MJP Commissions opinion, they already satisfy the principles in subparagraph (b).
In paragraph B(5)(iii) of its proposed rule, the Committee has inserted another situation which it feels should be a safe harbor. Absent the inclusion of this provision, the MJP Commissions proposed rule does not provide sufficient protection for a lawyer doing certain transactional work, as opposed to litigation. For instance, the MJP Commissions rule does not protect a lawyer who continues to provide estate planning services to a client who moves from the jurisdiction in which the lawyer is admitted to practice to a different jurisdiction.
The MJP Commissions comment to paragraph (c) of its proposed rule provides that the list in that paragraph is not exclusive but illustrative. The Committee believes that such an approach will lead to confusion and inconsistency. In the Committees opinion, the better approach is to have an exclusive list of specifically described safe harbors, as is the case in paragraph B of the Committees proposed rule.
The comments to the MJP Commissions proposed rule also have been revised/expanded upon in ways the Committee felt appropriate.
The Committee concurs with the substance of this Recommendation, but also would assign to the Coordinating Committee the additional responsibility to encourage/monitor adoption of the proposed rule on multijurisdictional practice by the various states.
III. Additional Issues
In its cover letter dated November 30, 2001 to the Interim Report, the MJP Commission asks if a lawyer rendering legal services on a temporary basis in another jurisdiction should be required to comply with that jurisdictions CLE requirements, provide pro bono legal service, and/or make a contribution to a client protection fund. In the opinion of the Committee, a lawyer should not be required to comply with such CLE requirements, provide pro bono legal service, or contribute to a client protection fund as a result of providing services on a temporary basis in a jurisdiction in which he/she is not admitted to practice. In the Committees opinion, such a requirement almost would be impossible to police/administer.
On the other hand, the Committee believes it is appropriate for a person who is harmed by a lawyer who renders legal services in a jurisdiction in which he/she is not licensed to practice law to be able to recover damages from any client protection fund in the jurisdiction where the lawyer is licensed to practice.
Missouri is a "border" state in the true sense of the word -- the state abuts more states than any other state, and as a result, most of its lawyers face the issue of multijurisdictional practice at some point in their career. The rule proposed by the Committee reflects input from lawyers associated with large firms and small firms, in-house counsel, a law professor, and several past presidents of The Missouri Bar. The Committees proposed rule also indirectly reflects the input received by the MJP Commission, given the rules substantial similarity to the rule proposed by the MJP Commission. The Committee requests that the Board accept this report in its entirety and forward a copy of the same in paper form and on computer disk to both the MJP and the Ethics 2000 Commissions.
1 Jennifer Gille Bacon (Chair), Richard J. Collins, Doreen Davis Dodson, John S. Johnston, Carol Needham, Charles A. Weiss, Joe B. Whisler and Dick H. Woods, Jr.