Statement Of Allen A. Etish at the Hearing Of ABA Commission On Multijurisdictional Practice - Center for Professional Responsibility

STATEMENT OF ALLEN A. ETISH

NEW JERSEY STATE BAR ASSOCIATION
FEBRUARY 1, 2002
HEARING OF ABA COMMISSION ON MULTIJURISDICTIONAL PRACTICE

Chairman Positan and members of the Commission, thank you for permitting me to address you today. You are to be commended for encouraging open debate on the important topic of multijurisdictional practice and for continuing to solicit the views of lawyer organizations across the nation.

I serve as chair of the MJP Committee of the New Jersey State Bar Association. The comments I make represent the views of the MJP Committee and the Professional Responsibility Committee of the New Jersey State Bar Association and do not necessarily represent the position of the association. The NJSBA will submit final comments and recommendations by your March deadline.

From the outset, the New Jersey bar has been extremely interested in the work and direction of the Commission. MJP remains a topic of great interest in New Jersey. Although a small state we have a large, diverse population and a vibrant commercial community that has come to expect and rely upon access to a variety of legal services. As a result our bar is relatively large and is comprised of practitioners and firms of all sizes, and in every area of practice. We are affected greatly by geography. If you look at a map you will realize quickly that New Jersey is sandwiched between New York and Philadelphia and is within easy driving distance of at least a half-dozen other jurisdictions. In addition, New Jersey is also home to hundreds of in-house counsel in corporate headquarters across the state. As a result, for many New Jersey lawyers, particularly those with commercial or litigation practices, MJP is a fact of life, as it is for the many nearby out-of-state practitioners who travel to our state.

A few months ago the NJSBA submitted some recommendations to you, chief among them a proposed revision to RPC 5.5 that would create safe harbors for different types of temporary practice, as well as codify the role of in-house counsel. The New Jersey State Bar Board of Trustees earlier this month reiterated its support for the recommendations contained in that report. Our goal remains the same – to help craft a model rule that permits appropriate MJP activity without intruding upon existing bar admission and regulatory standards. We firmly believe that states have a legitimate interest in closely regulating admission to the bar and the conduct and activity of lawyers to ensure that clients receive competent and ethical legal representation. Thus, our state is certainly not in camp with those who favor the elimination or substantial reduction of all barriers to cross-border practice. We do, however, recognize that some reform is necessary to bring the model rules in line with the realities of everyday practice.

There are a number of recommendations in the Commission’s November report that were not addressed by the New Jersey State Bar Association in our earlier report. I would like to comment on them.

1. Draft Rule 5.5 – We are concerned about your draft Rule 5.5 because the broad

language contained in paragraph (b) relating to temporary presence, coupled with the non-exclusive safe harbors in paragraph (c) results in a rule that may be interpreted to allow any and all forms of MJP with few restrictions. We believe your rule is too broad. The non-exclusive nature of the safe harbors opens the door to just about any cross-border activity and goes beyond what the organized bar in my state is likely to support. As might be expected, my committee favors the New Jersey approach as set forth in the report sent to you some months ago. That approach is a conservative one that sets forth definite safe harbors within Rule 5.5 that would result in protection for practitioners without unwisely abandoning current jurisdictional restrictions on interstate practice. These safe harbors would apply to pre-litigation activity, transactional work, representation in ADR proceedings, and the activity of in-house counsel. The Commission has suggested other safe harbors that I will comment on in a moment. It is important that Rule 5.5 be tailored to accommodate the needs of lawyers, clients and the public. I believe this can be most effectively done through a restrained approach rather than the rule proposed by the Commission.

2. Recommendation 3.6 -- We suggest that the Commission consider allowing lawyers to provide temporary services involving federal law, international law and foreign law only after associating with local counsel. The application of any body of law within a particular jurisdiction cannot occur in a vacuum. Local legal issues, procedures and precedent are likely to have an impact and the presence of a knowledgeable local practitioner seems essential so that a client may be fairly and competently served.

3. Recommendation 3.8 -- While your recommendation regarding practice permitted by federal law or court rule appears appropriate, might there be instances where state law restricts or limits such practice? Perhaps language could be added to the draft rule recognizing this possibility.

4. Recommendation 4 -- In New Jersey the issue of admission on motion is a difficult one and it has not been addressed recently by the State Bar Association. In the past it has been opposed by much of the bar and by our Supreme Court. However, your recommendation has worthy advocates on either side. On the one hand I share the concerns mentioned in the recent California MJP report that passage of the bar exam may best serve the public interest in ensuring that those who are licensed to practice are fully qualified to do so. On the other hand, it may be inappropriate to make a seasoned practitioner who seeks to relocate to another state take a bar exam when he or she is already far more qualified to practice than any recent law school graduate who passes the exam. In addition admission on motion raises a host of other questions regarding how many years of practice would be required, what character review is needed, whether passage of the Professional Responsibility Exam should be mandated, etc. We will continue to study this issue and a recommendation will be contained in our final report.

5. Recommendation 5.1 – In regards lawyers admitted in foreign jurisdictions, who travel here to handle matters for clients, might this proposed rule also require association with local counsel? As with recommendation 3.6 such an arrangement would provide an extra layer of protection for clients in case questions of local law arise during the representation.

6. Recommendation 6 – A model pro hac vice rule for federal court proceedings shouldn’t be objectionable to anyone, provided it is widely adopted.

7. Recommendation 7.1 -- Regarding model Rule 8.5, lawyers should certainly be subject to discipline in jurisdictions where they render legal services, even if not licensed there.

8. Recommendation 7.2 -- There are a number of arguments in favor of the concept of reciprocal enforcement of discipline imposed in another jurisdiction. In order to maintain a respected system of lawyer discipline states must give due weight to determinations imposed by the highest court in sister states. We live in New Jersey with court rules that require a lawyer to report discipline imposed in another state, and which generally require the Supreme Court to accept disciplinary decisions rendered in other states, absent some infirmity in the proceeding that led to the discipline, or in the final discipline imposed. My committee supports this approach, which is substantially reflected in the Commission’s proposed amendments to Rule 22 of the Model Rules for lawyer Disciplinary Enforcement.

9. Recommendation 8 -- As the Commission suggests, the ABA should establish a coordinating committee to monitor changes in law practice and lawyer regulation.

One final point, and I believe it to be key to the successful implementation of model rules relating on MJP. Because these rules would have a substantial impact on the practice of law across the nation, I suggest to the Commission that it attempt to devise some mechanism that would trigger the implementation of the model rules only if they are adopted by a super-majority of states, for instance ¾ of states which is the percentage needed to obtain an amendment to the US Constitution. It would be unfair to the bar, and our clients, to have to operate under widely differing MJP rules that may, for instance, broadly permit transactional representation in Pennsylvania or New Jersey, while New York retains the status quo. MJP rules are not ordinary rules of practice and procedure for they will have an impact on the very nature and future of the legal profession. For this reason, they should not become effective except upon adoption by a large number of states.

Thank you.