Interim Report Written Responses/Comments Mjp Comment Summaries
TABLE OF CONTENTS
|American College of Construction Lawyers||Robert L. Meyers||3/13/02|
|American College of Real Estate Lawyers||Mark F. Mehlman, Chair, MJP Working Group||3/18/02|
|American Corporate Counsel Association (ACCA)||Susan Hackett, Sr. Vice President and Gen'l Counsel||03/20/02||A Common Sense Proposal for Multijurisdictional Practice|
|Antitrust Law, ABA Section of||Joanne Travis, Director||3/14/02|
|Arizona, State Bar of||Nicholas J. Wallwork, President||3/14/02|
|Barker, William T.||1/22/02|
|Business Law, ABA Section of||Harold S. Barron, Chair-elect||1/29/02
|California Supreme Court Advisory Task Force on MJP||1/7/02||Press Release http://www.courtinfo.ca.gov
|Chicago Bar Association||Steven F. Pflaum, General Counsel||2/25/02|
|Committee of Corporate General Counsel of the Section of Business Law of the ABA||Gary Van Graafeiland, Advocacy Chair||3/15/02|
|Columbus Bar Association||Frank A. Ray, President||3/25/02|
|Connecticut Bar Association MJP Task Force||Peter L. Costas||3/18/02|
|Council of the Bars and Law Societies of the European Union (CCBE)||John Fish||3/12/02|
|CrossingtheBar.com||George A. Reimer, President, Ethics Northwest, Inc.||1/2/02
|Crow Law Firm, The||Gerald J. Adler||3/11/02|
|District of Columbia, Bar Association of the||John Gordon Forester, President||3/14/02|
|Energy Bar Association||Paul E. Nordstrom, President
Julia R. Richardson, Delegate to ABA
|Ethics and Professional Responsibility, ABA Standing Committee on||Marvin L. Karp, Chair||3/15/02||Attachment I: Rule 5.5 (Ethics Committee Draft 3/14/02)
Attachment II: Ethics Committee Explanation of Proposed Rule 5.5
|Federal Communications Bar Association||Sidney White Rhyne||2/1/02||Redlined version of Rule 5.5|
|Florida Bar, The||Richard A. Gilbert, Chair, Special Commission on MJP||3/15/02|
|Freyer, James William||1/22/02|
|Geotas, Jordan K.||1/25/02|
|William T. Barker||1/16/02
||Revised ABA TIPS/IADC Model Rule on Pro Hac Vice Admission
Pro Hac Vice Rule with Comments (Final)
|International Law and Practice, ABA Section of (SILP)||Robert E. Lutz, Chair||2/3/02
|Report 113 E
ABA Model Rule on the Licensing of Legal Consultants
"Common Sense" Proposal
|Kansas Bar Association||4/19/02|
|Law Society of England and Wales||Deborah Mansfield, International Policy Executive||3/19/02||Annex 1: June 2001 Submission to MJP commission
Annex 2: Extract from Services Directive
|Legal Assistance for Military Personnel, ABA Standing Committee on (LAMP)||Brigadier General David C. Hague, USMC(Ret.), Chair||1/29/02|
|Legal Education & Admissions to the Bar, ABA Section of||Gerald W. VandeWalle, Chair||2/14/02||Revised Proposed Model Rule on Admission by Motion|
|Litigation, ABA Section of||3/15/02||Pro Hac Vice Rule with Comments (Final)|
|Los Angeles County Bar Association||Judge Samuel L. Bufford|
|Louisiana State Bar Association||Joseph L. Shea, Jr., Chair||3/7/02|
|Madden, Thomas M.||3/14/02|
|Missouri Bar MJP Committee||1/16/02||Exhibit 1 Proposed Rule/Statute on UPL
Exhibit 2 Redlined version of Rule 5.5
|National Conference of Bar Examiners||Isidoro Berkman, Chair||3/13/02|
|New Jersey State Bar Association||Allen A. Etish, MJP Committee Chair
Daniel M. Waldman, President
|New York State Bar Association, Special Committee on MJP||3/15/02|
|North Dakota State Bar, MJP Task Force||3/23/02||Cover
Table of Contents
Draft Rule 5.5
|Obert, Keith D.||1/22/02|
|O’Connor, William J., II||1/22/02|
|Oklahoma Bar Association||Gary C. Clark, President||2/15/2002|
|Piper, William S.||1/29/02|
|Professional Discipline, ABA Standing Committee on||Paula J. Frederick, Chair||3/12/02|
|Santa Clara County Bar Association||Bob Weeks||1/29/02|
|Shulman, Howard J.||1/29/02|
|Tort and Insurance Practice, ABA Section of, (TIPS)||3/15/02||Pro Hac Vice Rule with Comments (Final)|
|Union Internationale des Avocats||Delos N. Lutton, First Vice President||3/13/02||UIA's Standards for Lawyers Establishing a Legal Practice Outside Their Country;
UIA's Minimum Standards for Multidisciplinary Practice
|United States Army Standards of Conduct Office||Chandler, Colonel Garth K., Chief, Army Standards of Conduct Office|
|United States Department of Defense||William J. Haynes, II||3/11/02|
|USG Corp.||J. Eric Schaal, Associate General Counsel||1/8/02|
|White & Case LLP||Philip H. Schaeffer, General Counsel||1/31/02|
|Wisconsin, State of||Daniel W. Hildebrand, State Delegate to the ABA House of Delegates||2/26/02|
|Wisconsin, Supreme Court of||Chief Justice Shirley S. Abrahamson||1/29/02|
SUMMARY OF WRITTEN COMMENTS/ POSITION PAPERS
Anne Aikman-Scalese, a legal affairs manager of an undisclosed organization that retains counsel all over the nation, takes issues with the following recommendations in the MJP Interim Report: (1) Recommendation 3.6 should not impose the limit "on a temporary basis" to matters involving federal or international law; (2) Recommendation 3.7 should not limit the in-house counsel exception to "jurisdictions where the lawyer does not maintain an office."
AMERICAN COLLEGE OF CONSTRUCTION LAWYERS (ACCL)
The ACCL, taking its first public position on an issue in its thirteen-year history, states that amendments to Model Rule 5.5 "were not only appropriate, but essential." The ACCL joins with the ABA’s Business Law Section to urge that the "safe harbor" for transactional matters be based on the experience of the lawyer and client’s needs and not limited to matters located in the lawyer’s jurisdiction.
AMERICAN COLLEGE OF REAL ESTATE LAWYERS (ACREL)
Comments dated March 2002
In a March, 2002 supplement to its June, 2001 submission, ACREL urges the Commission to expand the scope of the proposed transactional "safe harbor" to "include temporary or occasional presence in the host state even if the client is not located in the lawyer’s home state or the matter does not arise out of or reasonably relate to a matter connected to the lawyer’s home state, as long as the lawyer is acting with respect to a matter that arises out of, or is reasonably related to, the lawyers practice in his or her home state." In the alternative, ACREL would endorse the "Common Sense Proposal in Rule 5.5 Formal" or other expansion of the transactional safe harbor.
AMERICAN CORPORATE COUNSEL ASSOCIATION (ACCA)
An updated version of A Common Sense Proposal for Multijurisdictional Practice, co-sponsored by the American Corporate Counsel Association (ACCA), The Association of Professional Responsibility Lawyers (APRL) and The National Organization of Bar Counsel (NOBC), and signed by other organizations, is available at the ACCA website at either of these two URL’s:
ANTITRUST LAW, ABA SECTION OF
In comments supplemental to its January 22, 2001 submission, the ABA Section of Antitrust Law offers the following reaction to the MJP Commission’s Interim Report:
The Section supports most recommendations, including paragraphs 2, 3 (except Proposed Rule 5.5(c)5), 4-6, 9-14;
The Section takes no position on paragraphs 1, 7, 8 and 15;
The Section opposes Recommendation 3.5 and its urges reformulation.
The Section believes Proposed Rule 5.5(c) 5 is "too narrow and unduly inhibits the choices available to consumers of legal services" and supports, instead, 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:
at any place within the admitting jurisdiction;
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
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 State Bar of Arizona, adopting the recommendations of its Task Force on MJP, submits a preliminary report, which endorses the following recommendations of the ABA MJP Commission Interim Report:
Recommendation 1 (state regulation of the profession) – provided the phrase "regulation of the practice of law" replaces "regulation of lawyers";
Recommendation 2 (general support for MJP);
Recommendation 5 (foreign legal consultants) – provided certain modifications are made;
Recommendation 6.1 ( pro hac vice in the United States District Courts) – provided requirement of admission to practice in at least one state is made explicit;
Recommendation 7 (reciprocal discipline) – with revisions suggested in a revised Model Rule 8.5 in Arizona’s Appendix F.
Recommendation 8 (establishing an ABA coordinating committee on MJP).
The State Bar of Arizona disagrees with the concept of "safe harbors" in recommendation 3 and opts, instead, for a modification of the "Common Sense Approach" embodied in a version Rule 5.5 in Arizona’s Appendix B. Modifications are based upon the "tighter language" of a model developed by the Colorado Bar and include the following: added disclosure requirements; deletion of "counselors at law" from the Common Sense Approach language; addition of a paragraph (g) to explain that a lawyer may engage in MJP only if admitted in a jurisdiction that has adopted a reciprocal discipline rule; and a comment explaining that MJP, other than practice by in-house counsel or before federal courts or agencies, should be only temporary.
The State Bar of Arizona takes no position on recommendation 4 (admission on motion), as Arizona does not permit admission on motion.
The State Bar of Arizona finds the proposal and commentary regarding adoption of a uniform pro hac vic rule in recommendation 6 "very general and non-specific" and seeks additional guidance, including identification of types of restrictions that unduly burden pro hac vice practice.
BARKER, WILLIAM T.
William T. Barker states his preference for the "Common Sense Proposal" offered jointly by ACCA, APRL and NOBC but also suggests a regulatory structure that could be combined with the Common Sense Proposal or with a safe harbors approach to MJP. Barker’s proposal is cast in terms of California law because it was prepared, though not submitted, in response to the Preliminary Report of the California Supreme Court Advisory Task Force on MJP. The proposal could be modified to reflect ABA model rules. Barker offers statutory language and an accompanying analysis of the following elements:
Codification of existing law on pro hac vice practice, practice before federal courts or agencies, and representation of non-California clients;
New safe harbors for the following types of services:
Services for existing clients;
Work in association with local counsel;
Retention by or on advice of local counsel;
Matters where out-of-state lawyers should be considered equally competent with local counsel;
Services that an unlicensed layperson could provide;
A "semi-safe harbor" where a lawyer can clearly establish that services do not create a significant risk of harm, such as when a lawyer has specialized expertise that is recognized by others;
Limits on regular practice and solicitation of clients;
Regulation of out-of-state lawyers through "periodic after-the-fact reporting of practice" accompanied by a modest fee.
Joe Bonanno, legal counsel to a national trade association in the equipment leasing industry, notes that not many lawyers have expertise in his area of practice and he receives calls from around the country seeking advice. He declares, "[t]here has to be an acknowledgment in MJP that there are lawyers that offer expertise in practice areas that can offer advice to those outside of their jurisdiction."
The ABA Section of Business Law’s preliminary response to the Interim Report criticizes as overly restrictive the safe harbor in proposed Rule 5.5(c)(5) because it "limits host state services, on a temporary basis, to either services for home state clients or services on home state matters." Instead, the Section reiterates its suggestion to use the following language, which is substantially the same as language in §3 of the Restatement:
(5) are not within paragraph (c)(3) or (c)(4) and are performed with respect to a matter that arises out of or is reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is authorized to practice."
In a supplemental comment dated March 13, 2002, the Business Law Section states that "the much narrower restrictions in the safe harbor for the counseling and transactional practice involving primarily issues of state law are anomalous, unnecessary, and not in the best interests of the bar or clients." The Section strongly urges changing this safe harbor and favors the Common Sense proposal language for Rule 5.5(c) as follows:
"services (except those for which pro hac vice admission is required) that…
(x) the lawyer performs for a client in this jurisdiction on a temporary basis, provided the lawyer does not establish a systematic and continuous presence in this jurisdiction for the practice of law and does not hold out to the public that the lawyer is licensed to practice law in this jurisdiction."
In the alternative, the Section recommends using language of the Restatement (Third) of the Law Governing Lawyers (2000):
(x) are performed with respect to a matter that arises out of or is reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is authorized to practice, except for services for which pro hac vice admission is required."
As to Rule 5.5 regarding in-house counsel, the Section suggests two changes:
(i) Change paragraph (d)(1) to read:
"(1) if the lawyer is an employee of a client and acts on behalf of the client or its
commonly ownedorganizational affiliates except for work for which pro hac vice admission is required;"
(ii) Add a Comment regarding representation of an employer that would further explain the permissible extent of the safe harbor and might read:
"Paragraph (d)(1) recognizes that some clients hire lawyers as employees. Given that such a client is unlikely to be deceived about the training and expertise of these lawyers, they may act on behalf of such a client without violating this Rule. These lawyers also may act on behalf of the employer's organizational affiliates (entities that control, are controlled by, or are under common control with the employer). They may in addition act on behalf of the employer's and its organizational affiliates' other employees in connection with the organizational client's matters. Lawyers authorized to practice under this paragraph may be subject to registration or other requirements, including assessments for client protection funds and mandatory continuing legal education.
Given these changes, the Section supports other recommendations in the Interim Report. However, the Section does favor an Admission on Motion Rule that would allow admission on motion of lawyers admitted by any U.S. jurisdiction who meet reasonable active law practice and character and fitness requirements.
(For a summary of comments by the Committee of Corporate General Counsel of the Section of Business Law of the ABA, see Committee of Corporate General Counsel below.)
The California Supreme Court Advisory Task Force on Multijurisdictional Practice offers a final report with recommendations, after evaluating 50 responses to its preliminary report of August 1, 2001. Responses were equally divided between those urging less change and those urging more change. The final report retains the preliminary report’s recommendation for an incremental approach to MJP using two components: registration of in-house counsel and public interest lawyers, and safe harbors from UPL prohibitions.
The registration system contemplates a process similar to the bar admission process, but would permit a lawyer licensed and in good standing in another jurisdiction in the United States to practice in the host state without taking the bar exam or becoming a member of the State Bar. Registration is limited to two groups: (1) in-house counsel who provide out-of-court legal services exclusively for a single, full-time business entity employer that does not provide legal services to third parties, and (2) public interest lawyers who provide services on an interim basis to indigents, under the supervision of an experienced member of the State Bar, at a public interest institution that qualifies as a "legal service project" under the Business & Professions Code.
The safe harbor component applies to two groups: (1) transactional and other non-litigating lawyers providing legal services on a temporary and occasional basis, and (2) litigating lawyers providing legal services in anticipation of filing a lawsuit or as part of litigation pending in another jurisdiction. The task force’s recommendation regarding such safe harbors is contingent on the clear and narrow definition of permissible activities.
In addition, the final report calls for the California Supreme Court to take initial action by adopting the task force’s recommendations and appointing a committee to address implementation issues, to institute a plan to monitor changes, and to report on an assessment to be undertaken within five years after the implementation of any of the proposals. The Supreme Court should then appoint a task force to report on any additional changes that may be appropriate. In addition, the California Supreme Court should present this report to the Legislature and cooperate with the Legislature in taking further action.
CHICAGO BAR ASSOCIATION (CBA)
The Chicago Bar Association generally favors the Commission’s proposed revisions to Model Rules 5.5 and 8.5. The CBA agrees with the Commission’s choice to reject a "strict ‘status quo’ approach" and also the broader approach suggested by ACCA, NOBC, and APRL. Though the CBA takes no position on the merits of the broader approach, it believes the Commission’s approach is "more practical at this time." The CBA may supplement these comments and may also comment further upon publication of the Commission’s final report.
COMMITTEE OF CORPORATE GENERAL COUNSEL OF THE SECTION OF BUSINESS LAW OF THE AMERICAN BAR ASSOCIATION
The Committee of Corporate General Counsel of the Section of Business Law of the American Bar Association writes to endorse the comments submitted by the Business Law Section in its letter dated March 13, 2002. The Committee does not support the "much more restrictive nature" of the safe harbor for counseling and transactional practices in Recommendation 3.5. The Committee prefers the approach of the so-called "Common Sense" Coalition or, in the alternative, the creation of a safe harbor for counseling and transactional practices detailed in the Business Law Section’s letter.
COLUMBUS BAR ASSOCIATION
The Columbus Bar Association’s Board of Governors voted to support the recommendations in the Commission’s Interim Report and recommends that the Supreme Court of Ohio enact the Model Rules of Professional Conduct to ensure effective implementation.
The Connecticut Bar Association’s MJP Task Force supports recommendations of the Commission in principle and suggests modifications as follows:
The limitation in Rule 5.5 to services "performed on a temporary basis" provides little or no improvement on existing law;
Use of term "employee" in §5.5(d)(1) may be overly limiting, but this matter can be addressed later;
Language in the safe harbor for house counsel should clarify that it not be construed as a basis for authorizing pro hac vice admission; further, the safe harbor should exclude appearances before federal, state and local agencies and tribunals, and legal services for "persons who may be customers of their employer";
The arbitration safe harbor should cover those who function as arbitrators, in addition to those representing parties in an arbitration;
The phrase "except as authorized by these rules or other law" in § 5.5(e) should be deleted;
The Ethics 2000 prohibition "A lawyer shall not assist another person in the unauthorized practice of law" should be retained;
Model Rule 5.5 should include a reciprocity provision.
The Council of the Bars and Law Societies of the European Union (CCBE) supports Recommendation 5 of the Interim Report that encourages states to implement the Model Rule for the Licensing of Legal Consultants. As to Recommendation 5.1, the CCBE supports the ability of foreign legal practitioners to supply services into the United States without violating the unauthorized practice of law rule. In general, the CCBE suggests the ABA approve and promote "a nation-wide framework for admission to the bar for foreign lawyers."
In a memorandum dated January 2, 2002, CrossingtheBar.com (CTBC) makes the following criticisms of the MJP Commission’s Interim Report:
- The Commission has given inadequate consideration to the ongoing conflict between federal and state power to regulate the legal profession;
- The proposed amendment to Rule 5.5 of the Model Rules of Professional Conduct is "essentially an exception that swallows the [UPL] prohibition…";
- "Safe harbors" listed in Interim Report are too numerous and many are too ambiguous to be enforceable.
CTBC supports the following Commission recommendations, with some caveats:
- Endorse an admission on motion rule (with the caveat of a three year maximum prior practice requirement);
- Encourage adoption of the existing foreign legal consultants rule (with the caveat that the ABA’s highest priority be given to amending rules governing MJP by lawyers licensed in U.S. jurisdictions);
- Endorse a uniform pro hac vice rule (with clarification regarding lawyers practicing federal law);
- Amend Rule 8.5 of the Model Rules of Professional Conduct;
- Amend Rules 6 and 22 of the Model Rules for Lawyers Disciplinary Enforcement;
- Recommend annual submission of admission and disciplinary records to licensing authorities;
- Support national data collection and compilation of admission and disciplinary records;
- Establish a Coordinating Committee on Multijurisdictional Practice;
In addition to these comments, CTBC suggests that the Commission recommend that all U.S. jurisdictions have compatible rules on choice of law regarding disciplinary violations.
CTBC will offer a separate critique of the "Common Sense Proposal for Multijurisdictional Practice," jointly sponsored by ACCA, APRL & NOBC.
In its March 11, 2002, supplemental comment, CTBC states that broad exceptions to UPL restrictions will not be widely acceptable and recommends instead a registration process that can be a reasonable start toward essentially uniform MJP rules in every U.S. jurisdiction. The CTBC recommends a rule or statute that requires lawyers who wish to practice law on a temporary basis without being admitted to practice to register voluntarily with that jurisdiction, pay a fee, and agree to various conditions and restrictions. A draft of a model rule to this effect is included. Other options should also exist including admission on motion, pro hac vice admission and corporate counsel admission.
The Crow Law Firm, a professional corporation with a primary specialty practice under the Federal Employers’ Liability Act, offers strong support for proposed Model Rule 5.5(c)(6).
The firm asserts that the proposed rule is consistent with the long history of this specialized federal practice and with United States Supreme Court cases affirming the validity of this multijurisdictional representation.
DISTRICT OF COLUMBIA, BAR ASSOCIATION OF THE (BADC)
The District of Columbia Bar Association prefers the Common Sense Proposal’s "shorter and more MJP-friendly" version of Rule 5.5. The BADC’s concerns with Rule 5.5 proposed by the MJP Commission center on two sections: Rule 5.5 (c)(5)(i) and Rule 5.5 (c)(5)(ii). The BADC takes issue with Rule 5.5(c)(5)(i) in its apparent limitation of services to those clients who live in or have an office in the jurisdiction in which the lawyer is admitted to practice. It states, "These arbitrary distinctions based on the residence or office location of the client make no sense." As to Rule 5.5(c)(5)(ii), BADC prefers the Restatement’s "more realistic formulation," which recognizes a client’s right to a lawyer’s services in a jurisdiction in which the lawyer is not admitted if the lawyer’s services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. The BADC notes that similar wording has been recommended by the ABA Section of Business Law and the Federal Communications Bar Association.
The Energy Bar supports the alternative version of Model Rule 5.5, the "Common Sense Proposal," co-sponsored by the Federal Communication Bar Association and other entities. The Energy Bar Association believes that clients have a right to choose the lawyer they deem best able to meet their needs, especially when those needs arise in connection with federal or other multi-jurisdictional or regional matters.
ETHICS AND PROFESSIONAL RESPONSIBILITY, ABA STANDING COMMITTEE ON
Comment dated 3/15/02
Attachment I: Rule 5.5 (Ethics Committee Draft 3/14/02)
Attachment II: Ethics Committee Explanation of Proposed Rule 5.5
In a letter dated March 13, 2002, The ABA Standing Committee on Ethics and Professional Responsibility supports Recommendation 7.3 (regarding promoting the National Lawyer Regulatory Data Bank) and proposed Rule 8.5 in Appendix N to the Interim Report, including the MJP Commission’s additional reference to reciprocal enforcement in comment  to Rule 8.5.
As for Model Rule 5.5, the Standing Committee submits a draft of the rule in Attachment I to its letter, along with an explanation in Attachment II of the differences between its draft and other proffered versions of Model Rule 5.5. The Standing Committee’s draft identifies an affirmative list of authorized practices rather than providing exceptions to UPL: appearance before tribunals and preparation for potential proceedings, in-house counsel practice, temporary provision of legal services, association with locally admitted counsel, and authorization by federal or other law.
The Standing Committee suggests eliminating the broad general standard in the Commission’s paragraph (b), citing four principles for an effective and acceptable rule: "client protection, clarity, consistency and enforceability."
As to transactional and counseling activities in a host jurisdiction, the Standing Committee suggests the following standard, similar to the ALI Restatement (Third) of the Law Governing Lawyers, §3:
A lawyer admitted to practice and in good standing in another jurisdiction, but not licensed to practice in this jurisdiction may… provide legal services in this jurisdiction other than those referred to in paragraph (b)(1)[i.e., pro hac vice] if the lawyer:…
(ii) temporarily provides the services with respect to a matter arising out of or reasonably related to the lawyer’s practice in another jurisdiction in which the lawyer is authorized to practice…
FEDERAL COMMUNICATIONS BAR ASSOCIATION (FCBA)
In written testimony prepared for the February 1, 2002 MJP hearing, the FCBA supports the "Common Sense Proposal jointly sponsored by ACCA, APRL and NOBC and also suggests several changes to Model Rule 5.5 appended to the MJP Commission’s Interim Report. A redlined version of Model Rule 5.5 accompanies FCBA testimony. Suggested additional language for what the FCBA considers "necessary further clarification" is noted in bold (with reasons in parentheses) as follows:
Rule 5.5 (b) – "lawyer admitted and in good standing in another United States jurisdiction" – (keeps language parallel with proposed paragraph (c));
Rule 5.5 (b) – "does not engage in unauthorized practice of law when the lawyer performs legal services within this jurisdiction on a temporary basis" – (clarifies that it is the lawyer’s presence, not the representation of the client, that must be temporary);
Rule 5.5 (b) – " unless it has been shown that the lawyer’s services have created an unreasonable risk to the interests of the lawyer’s client, the public, or the courts" – (clarifies that the burden is on whoever challenges the multijurisdictional practice to show unreasonable risk);
Rule 5.5 (c) – refers to services "for a client that are within paragraph (b), if performed within this jurisdiction on a temporary basis by a lawyer admitted and in good standing in another United States jurisdiction" " – (clarifies that it is the lawyer’s presence, not the representation of the client, that must be temporary);
Rule 5.5 (c)(2) – "may be performed in this jurisdiction by a person who is not a licensed lawyer" – (avoids the double negative "not a lawyer without a law license" and the unnecessary reference to some "other authorization from a state or local governmental body.);
Rule 5.5(c)(5) – "are not within paragraph (c)(3) or (c)(4) but:" – (change from the word "and" more clearly indicates that though services may not be excepted by (c)(3) or (c)(4), they are saved by (c)(5)); (an alternative deletion of this line of text and renumbering of sub-paragraphs could simplify the rule);
Rule 5.5 (c) (5)(ii) – "arise out of or are reasonably related to legal services rendered by the lawyer in a jurisdiction in which the lawyer is admitted to practice" – (cures difficulties with the "substantial connection to" language and avoids the artificial incentive for a lawyer to claim that the law of the lawyer’s jurisdiction of admission will be controlling solely to provide the required "substantial connection");
Rule 5.5 (c)(6) – " arise out of or are reasonably related to legal services involving federal law" – (keeps language parallel with the previous paragraph and recognizes that lawyers deal with mixed questions of the law of their specialty and the law of one or more states);
Rule 5.5 (c)(7) – " concern matters subject to the oversight or approval of federal, international or foreign authorities or tribunals or those of a jurisdiction in which the lawyer is admitted to practice" – (new language provides "an extra safeguard" for lawyers who handle matters regulated by governmental agencies other than those of the jurisdictions they enter on a client’s behalf);
Rule 5.5(e) – "establish an office for legal service to the public…" – (recognizes that major law firms conducting litigation establish temporary offices in jurisdictions where their lawyers are not admitted, but these are not for legal service to the public);
Rule 5.5 (f) – "A lawyer who is not admitted to this jurisdiction shall not represent or hold out to the public that the lawyer is admitted to practice in this jurisdiction" (makes Rule 5.5 (e) (ii) a separate paragraph and omits the qualifier "except as authorized by these rules or other law).
Nancy Feldman, a lawyer practicing in VA, MD and DC, has never had problems associating with local counsel when necessary. She believes out-of-state lawyers should be required to associate with local counsel and encouraging them to do otherwise would be irresponsible and cause an increase in malpractice premiums.
The Florida Bar adopts the following comments of its Special Commission on MJP regarding the ABA MJP Commission’s Interim Report:
Recommendation 1 (state regulation of the profession) - endorses;
Recommendation 2 (general support for MJP)– does not endorse because "it is broad, generic and unnecessary";
Recommendation 3 (safe harbors) – supports as modified:
Make list of "safe harbors" exclusive;
Add a provision barring lawyers who are ineligible for practice in the host state such as:
"Furthermore, no lawyer is authorized to provide legal services pursuant to this rule if the lawyer (1) is an inactive or suspended member of this jurisdiction, or has been disbarred or has received a disciplinary resignation from this jurisdiction; or (2) has previously been disciplined or held in contempt by reason of misconduct committed while engaged in the practice of law permitted pursuant to this rule."
Add language to the comment to Proposed Model Rule 5.5(c)(1) on co-counsel, such as:
"For this exception to apply, the lawyer admitted to practice in the [host] jurisdiction could not serve merely as a conduit for the out-of-state lawyer, but would have to share actual responsibility for the representation and actively participate in the representation."
Add language to the comment to Proposed Model Rule 5.5(c)(2) on services non-lawyers can perform, such as:
"When performing services under this paragraph, the lawyer does so as a lawyer and remains subject to the Rules of Professional Conduct of the host state."
Provide a safe harbor for representation in ADR matters "if a nexus is established";
Exclude a safe harbor for temporary services involving primarily federal, international law, the law of a foreign nation or the law of the lawyer’s home state;
Substitute The Florida Bar’s Authorized House Counsel rule;
Exclude a safe harbor for services authorized by federal law or a court rule;
Substitute the word "regular" for "other permanent" in Proposed Model Rule 5.5 (e) prohibiting permanent presence;
Recommendation 4 (admission on motion)– does not endorse;
Recommendation 5 (foreign legal consultants)– supports the concept of a foreign legal consultant rule but not the rule proposed by the ABA or the amendment of rules to allow for a temporary presence; recommends adoption of Florida’s Foreign Legal Consultant rule;
Recommendation 6 ( pro hac vice)– supports the concept of a model pro hac vice rule but not the rule proposed by the ABA; recommends adoption of a rule similar to Florida’s pro hac vice rule;
Recommendation 7 (reciprocal discipline)– endorses, with some modifications:
Omit the phrase "in which the lawyer reasonably believes, so that the proposed amendment to Model Rule 8.5(b) reads "A lawyer is not subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction where the predominant effect of the lawyer’s conduct will occur."
Omit the word "the identical" when describing discipline the home state should impose;
Recommendation 8 (establishing an ABA coordination committee on MJP)– endorses.
FREYER, JAMES WILLIAM
James William Freyer of Houston expresses his concern that MJP seems "a bit risky, especially for solos and small firms" due to the difficulty in keeping up with statutes and case law in multiple states.
GOETAS, JORDAN K.
Jordan K. Goetas, a lawyer from Arizona, writes in support of MJP being made "as easy as possible." In response to concerns regarding out-of-state lawyers being unfamiliar with local rules Goetas states that a good lawyer will take the time necessary to become competent as required by the ethics rules. As for concern regarding competition, Goetas retorts, "Guns and butter. Let the strong survive and the weak move on."
Russ Golla, a trial lawyer in the Wisconsin, opposes any proposal that does not require a local lawyer to supervise out-of-state lawyers who seek to practice law in a state in which they are not licensed.
Fred Hopengarten, a communications lawyer admitted to the Bars of D.C. and Maine and specializing in "tower law," makes the following comments:
Where a client is fully informed about the admissions of a lawyer and has made a knowing waiver of a requirement for admission to a particular state, it is not in the client’s best interest to add to the client’s expense and delay be requiring participation of local counsel;
Reciprocal discipline, expedited by use of the internet, removes the need for discipline to be based within the state of the lawyer’s residence (disciplinary actions could and should be listed on a single, multijurisdictional URL);
Federal courts should accept admission from any federal jurisdiction for private and government lawyers.
INTERNATIONAL ASSOCIATION OF DEFENSE COUNSEL (IADC)
Revised ABA TIPS/IADC Model Rule on Pro Hac Vice Admission
Pro Hac Vice Rule with Comments (Final)
The IADC, in conjunction with the ABA Section of Tort and Insurance Practice (TIPS), submits a revised version of their Model Rule on Pro Hac Vice Admission, which reflects deliberations by the MJP Commission and discussion with the ABA’s Litigation Section. The major difference between this version and the pro hac vice rule submitted by the Litigation Section is that the IADC/TIPS rule contains comments. IADC/TIPS urges the Commission to include comments in whatever model rule version it ultimately proposes, especially as regards "delineation of the qualitative standard we advocate for determination of when a lawyer is engaged in regular practice…" The IADC/TIPS proposal includes other minor differences that could be incorporated into the Litigation Section’s proposal such as a provision for procedural protections for pro hac vice applicants and a provision requiring disclosure of information about other lawyers in the applicant’s firm.
IADC joins with TIPS and the ABA’s Litigation Section in submitting a February 25, 2002 draft of the Model Rule on Pro Hac Vice Admission that blends the black letter rule proposed by the Litigation Section with comments drafted by TIPS/IADC.
For a summary of the final version of the rule, dated March 15, 2002, see Litigation, ABA Section of, below.
INTERNATIONAL LAW AND PRACTICE, ABA SECTION OF
"Common Sense" Proposal
In February 2002 the ABA House of Delegates adopted Report 113E, submitted by the ABA Section of International Law and Practice, which directs the United States Trade Representative to negotiate trade agreements regarding access to foreign markets for U.S. legal service providers consistent with the principles of the ABA’s Model Rule for the Licensing of Legal Consultants.
In April 2002, the Section requested that it be added to the list of entities that support the "Common Sense" proposal. It endorsed Recommendation 5 from the Commission Interim Report, which encourages jurisdictions to adopt a foreign legal consultant rule. The Section emphasized that U.S. states should adopt the ABA Model Rule for the Licensing of Legal Consultants. The Section also endorsed Commission Recommendation 5.1, calling for clarification of the circumstances where it is not unauthorized practice for a lawyer admitted in a non-U.S. jurisdiction to perform services for a client in a U.S. jurisdiction. It suggested that such clarification be in Model Rule 5.5. It further recommended that the limits contained in the Foreign Legal Consultant Rule for establishment in U.S. states by foreign lawyers should also be applicable to temporary practice.
KANSAS BAR ASSOCIATION
The Kansas Bar proposes a new Model Rule 5.5 as follows:
(a) A lawyer shall not:
(1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(2) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
(b) A lawyer admitted to practice in another jurisdiction, but not in this state, does not engage in the unauthorized practice of law in this state when:
(1) the lawyer is authorized to appear before a tribunal in this state by law or order of the tribunal or is preparing for a proceeding in which the lawyer reasonably expects to be so authorized;
(2) the lawyer participates in this state in investigation or discovery incident to litigation or alternative dispute resolution in which the lawyer is representing a party in a jurisdiction in which he or she is licensed;
(3) the lawyer is performing services which may lawfully be performed by a person who is not a lawyer or does not hold a law license or other authorization from a state or local governmental body;
(4) the lawyer is acting as an arbitrator, mediator or impartial third party in an alternative dispute resolution proceeding;
(5) the lawyer is an employee of a client and, in connection with the client’s matters, is acting on behalf of the client, the client’s other employees or its commonly owned organizational affiliates, but not on behalf of third parties, incident to work being performed in a jurisdiction in which the lawyer is licensed to practice or which is carried out on an occasional basis and not as a regular course of practice in this state;
(6) the lawyer is acting with respect to a matter, including alternative dispute resolution, incident to work being performed in a jurisdiction in which the lawyer is licensed to practice and which is carried out on an occasional basis and not as a regular course of practice in this state; or
(7) the lawyer is associated in a particular matter with a lawyer admitted to practice in this state and is performing work on such matter on an occasional basis and not as a regular course of practice in this state.
(c) A lawyer providing services as provided herein shall be governed by and shall comply with applicable rules of any tribunal concerning pro hac vice admission.
(d) A lawyer providing services as provided herein shall be governed, controlled and may be disciplined by and subject to such statutes and rules of the lawyer’s jurisdictions of admission and the jurisdiction where services are delivered.
KLOPFE, V. M.
V. M. Klopfe writes to suggest that the commentary under Recommendation 3.7 in the MJP Interim Report (pages 27-28, discussing Model Rule 5.5(d)(1)) include a clarification that "an in-house corporate lawyer should only be required to be licensed in any one U.S. jurisdiction of the individual’s choosing and that this license need not be from any state in which the corporation does business or the one(s) in which the lawyer offices."
In its March 19, 2002 supplemental submission, the Law Society of England and Wales supports the recommendation that the ABA encourage states to adopt the ABA Model Rule for the Licensing of Legal Consultants. (It notes that Section 1(b) of the Model Rule, though optional, has tended to create difficulties for foreign lawyers in general and English solicitors specifically.) The Law Society also supports Recommendation 5.1, allowing foreign lawyers to carry out legal services on a temporary basis without having to seek admission as legal consultants.
The Law Society offers its experience with the provision of legal services in the UK by foreign lawyers, who are neither registered nor regulated unless they enter into partnership with solicitors or are E.U. lawyers, noting it is unaware of any problems relating to foreign lawyers and their practice in the UK.
Regarding the professional responsibilities of E.U. lawyers providing temporary services in another jurisdiction, the Law Society offers the attached Services Directive under which a lawyer is "not required to take out indemnity insurance or to undertake any other obligation in relation to the bar of the jurisdiction visited." The Law Society states it is unaware of any difficulties caused by such practice since the governing Services Directive took effect in 1977.
The Law Society suggests that the Commission look toward the current round of GATS negotiations and urge states to adopt recommendations 5 and 5.1. It also suggests the Commission monitor the adoption of its recommendations to ensure that the implementation reflects the Commission’s liberalizing intent.
LEGAL ASSISTANCE FOR MILITARY PERSONNEL, ABA STANDING COMMITTEE ON (LAMP)
The ABA Standing Committee on Legal Assistance for Military Personnel asks that the Commission delete proposed language in note forty-four (44) to Comment 3.8 (page 45 of Interim Report) that states the Commission "is uncertain whether military lawyers are in fact legally authorized to represent individuals outside the jurisdictions in which they are licensed" because a reading of Title 10 United States Code § 044 et seq. "directly contradicts" that statement. LAMP states that "[o]bviously Congress enacted §1044 and its progeny, with the intent of both removing State law barriers while enhancing the delivery of legal assistance to service members."
LAMP, along with the various branches of the Armed Forces, prefers an express safe harbor in Model Rule 5.5(d) to this effect: "(3) if the lawyer is an Armed Forces legal assistance attorney providing legal services pursuant to Title 10 U.S.C. § 1044." Even if such language is not included, legal assistance attorneys fall within the safe harbor of Model Rule 5.5(d)(2); however, note 44 casts doubt upon this and "needlessly jeopardizes" these lawyers.
The Council of the ABA Section of Legal Education and Admissions to the Bar commends the Commission on its approach and takes the following positions regarding specific recommendations in the Commission’s Interim Report:
Recommendation 1 (affirms state judicial licensing and regulation of lawyers)– Council supports;
Recommendation 2 (Model Rule 5.5(b), sets forth general rule allowing temporary MJP)– Council opposes for several reasons;
Recommendation 3.1 (Model Rule 5.5(c)(1), allows work as co-counsel with admitted lawyer) – Council concurs if modified to indicate that local counsel may not be merely a conduit for an out-of-state lawyer;
Recommendation 3.2 (Model Rule 5.5(c)(2), allows services non-lawyers may render) – Council has no objection;
Recommendation 3.3 (Model Rule 5.5(c)(3), permits services that are in or reasonably related to a pending or potential proceeding before a tribunal or agency) – Council supports if the phrase "arising from" is substituted for "reasonably related" language;
Recommendation 3.4 (Model Rule 5.5(c)(4), allows services that are in or reasonably related to pending or potential arbitration, mediation or other alternative dispute resolution setting) – Council expresses "grave reservations" but would support if "reasonably related" language is replaced with the phrase "arising from" and if "impending" replaces "potential" alternative dispute resolution matters;
Recommendation 3.5 (Model Rule 5.5(c)(5), allows transactional representation if client has an office or resides in the jurisdiction in which the lawyer is licensed or is 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) – Council supports if "reasonably related to" language is deleted;
Recommendation 3.6 (Model Rule 5.5(c)(6), allows services for matters are primarily covered by federal, international or foreign law) – Council recommends this proposal be limited to lawyers proving services relating to international law and law of a foreign nation;
Recommendation 3.7 (Model Rule 5.5(d)(1), allows services by employed lawyers)– Council supports provided the proposed rule or commentary clearly defines the nature of the employment relationship;
Recommendation 3.8 (Model Rule 5.5(d)(2), allows services authorized by federal law or rule of the host state) – Council endorses;
Recommendation 3.9 (Model Rule 5.5(e), prohibits establishing an office or a permanent presence in the host jurisdiction) – Council supports;
Recommendation 4 (endorses a model admission on motion rule) – Council endorses if amended to eliminate the requirement that the applicant have been admitted "by bar examination";
Recommendation 5 (encourages the adoption of rules governing foreign legal consultants) – the ABA and the Council have previously endorsed the model foreign legal consultants rule;
Recommendation 5.1 (encourages adoption of provisions allowing for temporary legal services by foreign legal consultants) – Council has "grave reservations" because services are not limited to those involving foreign law or foreign proceedings;
Recommendation 6 (endorses a model rule for pro hac vice admission) – Council endorses;
Recommendation 6.1 (encourages renewed efforts to eliminate state bar membership as requirement for practice before U.S. district courts) – Council takes no position;
Recommendation 7 (amends Model Rule 8.5 and supports measures to enhance regulation and disciplinary enforcement) – Council supports general principle but states "implementation of multijurisdictional practice will require substantial further development of the disciplinary rules as well as the financial implications of reciprocal discipline";
Recommendation 7.3 (suggests the ABA promote interdisciplinary enforcement mechanisms) – Council endorses but suggests "considerably more study is needed regarding this aspect of multijurisdictional practice";
Recommendation 8 (suggests establishing permanent coordinating committee on MJP) – Council states the issue should be revisited in a given number of years because a "permanent committee discourages experimentation among the states to find a workable solution."
In addition, the Council submits a revised Proposed Model Rule On Admission By Motion.
LITIGATION, ABA SECTION OF
Pro Hac Vice Rule with Comments (Final)
The ABA’s Section of Litigation joins with IADC and TIPS in submitting a February 25, 2002 draft of the Model Rule on Pro Hac Vice Admission that blends the black letter rule proposed by the Litigation Section with comments drafted by TIPS/IADC.
The final version, dated March 15, 2002, provides a procedural framework for pro hac vice practice, standards to guide the discretion of the court, and an exemption from the unauthorized practice of law for services rendered in compliance with the rule. The rule provides that verified applications for pro hac vice admission, accompanied by a non-refundable fee, by eligible applicants offering temporary services "ordinarily should be granted" unless a reason exists to deny the application such as "the applicant has engaged in such frequent appearances as to constitute regular practice in this state."
The rule also provides guidance on several ancillary issues such as proceedings related to pending out-of state proceedings, consultation by out-of-state lawyers, preparation for in-state and out-of state proceedings, and services rendered outside the state for an in-state client. It includes a provision for preparation and participation in ADR procedures, a prohibition on solicitation, and a temporary practice limitation.
The Rule is accompanied by explanatory comments and by Appendix A, which lists requirements for an out-of-state lawyer’s application for pro hac vice admission, including the applicant’s disciplinary history, specifics of pro hac vice applications within the preceding two years in the state, an averment as to the applicant’s familiarity with local rules, and identifying information regarding a local lawyer who will sponsor the applicant’s request.
John Longino, a lawyer licensed in Georgia, Florida, Texas and Alaska, writes to convey his belief that MJP is "a dangerous concept." He cites examples of differences in local filing rules that can cause problems if not properly followed.
In a January 17, 2002 memorandum responding to the MJP Interim Report, the Los Angeles County Bar Association (LACBA) voices concerns about the following recommendations:
Recommendation 2 (regarding the general rule that temporary multijurisdictional practice is permissible) does not offer sufficient assurances for California lawyers with law degrees from non-ABA accredited schools who would seek reciprocity from other jurisdictions;
Recommendation 3.2 is too broad, though the LACBA agrees generally with the concept of safe harbors;
Recommendations 3.5 (transactional representation), and Recommendation 3.6 (temporary services involving federal law, international law, and the law of a foreign nation) also insufficiently address California’s reciprocity concerns;
Recommendation 3.7 (regarding in-house counsel) should provide that in-house counsel be subject to the same obligations as other members of the bar; (According to the LACBA, Recommendation 3.7 would permit an unsophisticated California firm to hire a "marginal non-California attorney" who would not be subject to taking the California bar examination and the recommendation may make in-house counsel "second class citizens");
Recommendation 6.1 (to support efforts to lower barriers to pro hac vice admission in federal district courts) causes concern because of harm done by non-California lawyers who have attempted to practice in federal courts in California without admission to the California bar.
LOUISIANA STATE BAR ASSOCIATION (LSBA)
The LSBA’s MJP Committee is in agreement with the following safe harbors set forth in the Interim Report provided they are temporary and subject to reciprocal discipline:
Work as co-counsel;
Professional services a non-lawyer may render;
Representation of clients in, or ancillary to, alternative dispute resolution;
Non-litigation work ancillary to the lawyer’s representation of a client in the lawyer’s home state or ancillary to the lawyer’ work on a matter in the lawyer’s home state;
Services involving primarily federal law, international law, the law of a foreign jurisdiction or the law of the lawyer’s home state; and
Work by a lawyer who is an employee of a client or commonly owned organizational affiliates and work in a host state that the lawyer is authorized by law to render.
The LSBA’s MJP Committee favors Recommendations 1, 2, 3, 5, 6 (excluding 6.1), and 7. It takes no position regarding recommendation 4, which was referred to the LSBA Committee on Bar Admissions, or on recommendations regarding federal courts. As for Recommendations 5 and 5.1, the Committee notes that Louisiana has already adopted a foreign consultant rule.
MADDEN, THOMAS M.
Thomas M. Madden suggests that written guidance on the following questions would be helpful:
Does Model Rule 5.5(c)(5) or (6) cover the issuance of legal opinions, or closing opinions, in transactions where the lawyer for a home state client may encounter a contract or regulation governed by the law of another state?
Does Model Rule 5.5 (d)(2) cover in-house counsel in opining on the law of any jurisdiction where the lawyer is not admitted but where the employer does business?
MISSOURI BAR MULTIJURISDICTIONAL PRACTICE COMMITTEE
Comment dated 1/16/02
Exhibit 1 Proposed Rule/Statute on UPL
Exhibit 2 Redlined version of Rule 5.5
The Missouri Bar Multijurisdictional Practice Committee supports the recommendations of the ABA MJP Commission’s Interim Report, with some exception. As to Recommendations 2 & 3 (general rule on temporary MJP and safe harbors), the Missouri MJP Committee offers an alternative proposed rule on UPL that amends the existing draft of Model Rule 5.5 as follows:
Deletes subparagraph (b) – (the "unreasonable risk" standard is unnecessary and vague; (c)(2) inappropriately limits services that any non-lawyer can perform on a permanent basis; the relationship between subparagraph (b) and the safe harbors set forth in (c) is unclear);
Adds a safe harbor for services that "are provided only with respect to a matter that arises out of or otherwise is reasonably related to the lawyer’s practice on behalf of an existing client";
Posits an exclusive list of safe harbors to avoid the "confusion and inconsistency" of an illustrative list of safe harbors;
Revises comments to the rule accordingly.
As to Recommendation 8 (calling for a coordinating committee on MJP), the Missouri MJP Committee suggests that such a coordinating committee also be charged with encouraging and monitoring the adoption of the proposed rule on MJP by the states.
As for additional issues, Missouri’s MJP committee does not favor requiring CLE, pro bono service or contribution to client protection funds by lawyers temporarily rendering legal services in another jurisdiction because such requirements would be "impossible to police/administer." However, a person harmed by such a lawyer should recover damages from the client protection fund in the jurisdiction where the lawyer is licensed to practice.
Missouri’s proposed rule on UPL and a redlined version of ABA Model Rule 5.5 are included in the comment as Exhibit 1 and Exhibit 2.
NATIONAL CONFERENCE OF BAR EXAMINERS (NCBE)
The National Conference of Bar Examiners strongly encourages the Commission to retain in its final report Recommendation 1 (providing support for the principle of state judicial licensing and regulation of lawyers) and Recommendation 4 (a model admission on motion rule). As to Recommendation 8 (establishment of a Coordinating Committee on MJP), the NCBE endorses continued monitoring by such an entity if it "plays a neutral role in promoting regulatory policy," but warns against allowing it "to serve as a lobbying vehicle for special-interest groups."
NEW JERSEY STATE BAR ASSOCIATION (NJSBA)
Statement of Allen A. Etish
Attachment A: NJSBA's Rule 5.5 and Attachment B: MJP Survey Results
In a written statement prepared for the February 1, 2002 MJP public hearing, Allen A. Etish, chair of the MJP Committee of the New Jersey State Bar Association, represents views of that committee and of the NJSBA’s Professional Responsibility Committee. These committees take issue with the Interim Report of the ABA’s MJP Commission on these points:
Draft Rule 5.5 is too broad in that the provisions allowing temporary presence and non-exclusive safe harbors together have the effect of allowing "any and all forms of MJP with few restrictions";
Recommendation 3.6 (temporary services involving federal law, international law and foreign law) should require association with local counsel;
Recommendation 3.8 (practice by federal law or court rule) should include language recognizing the possibility that state law may restrict such practice in some instances;
Recommendation 4 (admission on motion) requires more study;
Recommendation 5.1 (foreign legal consultants) should require association with local counsel.
The committees supports the following recommendations:
Recommendation 6.1 (Model pro hac vice rule for federal court proceedings);
Recommendation 7.1 (Model Rule 8.5 amendment making lawyers subject to discipline in jurisdictions where they render legal services);
Recommendation 7.2 (Rule 22 of the Model Rules for Lawyer Disciplinary Enforcement providing for reciprocal discipline);
Recommendation 8 (establishment of a coordinating committee on MJP).
In addition to these comments, the committees also suggest including a mechanism whereby MJP rules would be implemented only if adopted by a "super-majority" of states.
In a final report submitted by the NJSBA on March 15, 2002, the NJSBA opposes the Common Sense Approach and related proposals such as the "driver’s license" and "green card" schemes, calling them "the ‘revolving door’ proposals because they will encourage transitory law practice across jurisdictional borders." NJSBA is concerned that these "radical" proposals, which "favor mobility over commitment and accountability," will have a negative impact on "the core activities of the bar" such as client protection funds, pro bono service, IOLTA, continuing education, the disciplinary and fee dispute system, referral systems.
Instead, NJSBA advocates limited and exclusive "safe harbors" within Rule 5.5 of the Rules of Professional Conduct and offers its own amendments in Attachment A. NJSBA notes "our rule is much more detailed, and stricter in application, than the rule proposed by the ABA Commission on MJP, the Ethics 2000 Commission, the rule suggested by the ALI, and the rules proposed by many other bar associations."
As to other issues in the ABA MJP Commission’s Interim Report, the NJSBA has these opinions:
Matters involving federal, international or foreign law – suggests permitting such temporary service only after a lawyer associates with local counsel or acts under another specified "safe harbor" in Rule 5.5;
Practice permitted by law or court rule – suggests adding language recognizing the possibility of conflicting state law and establishing primacy;
Admission to the bar on motion – opposes admission on motion and favors retention of the bar exam for all applicants;
Practice by foreign lawyers – agrees with the recommendation, noting that it requires a foreign lawyer to associate with local counsel;
Model pro hac vice rule – supports;
Admission in U.S. District Courts –opposes;
Discipline in other jurisdictions – agrees that lawyers should be subject to discipline in jurisdictions where they commit misconduct;
Reciprocal enforcement of discipline – supports the approach of the Commission;
ABA oversight – agrees with recommendation to establish a MJP coordinating committee.
NJSBA reiterates its belief that implementation of model rule on MJP, such as the rule it suggests, requires adoption by a super-majority of states, such as ¾ of the states.
The NJSBA also appends a summary of survey responses of New Jersey bar associations and NJSBA sections.
NEW YORK STATE BAR ASSOCIATION (NYSBA)
The New York State Bar Association’s Special Committee on MJP does not take a position on the "Common Sense Approach," but makes the following comments regarding Proposed Rule 5.5 in the ABA MJP Commission’s Interim Report:
Supports the general safe harbor for MJP but finds that proposed safe harbors are "in some respects too limited in scope, or are illusory"; suggests deleting the phrase "on a temporary basis" from Rule 5.5(b) or replacing it with a "less vague phrase";
Suggests eliminating "on a temporary basis" language from Rule 5.5 (c) and also the limitation that the services must be within 5.5 (b);
With regard to 5.5(c)(6), suggests changing the phrase "the law of a foreign nation" to "the law of a jurisdiction other than the United States or a state or other political subdivision of the United States," and broadening the safe harbor by adding:
(i) services that are governed primarily by "laws of the states of the United States that are uniform in nature" and (ii) services that are "governed primarily by or relate to a commercial, financial, corporate or similar matter that is reasonably likely to have an effect on interstate commerce in more than one state."
Suggests adding a new subparagraph (f):
"A lawyer who is not admitted to practice in this jurisdiction may establish an office in this jurisdiction for the practice of law to the extent permitted by Rule 5.5(c) and (d) provided the lawyer registers as a lawyer with the appropriate state or local authority and does not represent or hold out to any person that the lawyer is admitted to practice in this jurisdiction."
If such a paragraph is added, subparagraph (e) should read: "Except as authorized by paragraph (f) below, these rules or other law…"
As to proposed Rule 8.5, the NYSBA’s Special Committee on MJP takes the following positions:
Disagrees with the language "if a predominant effect of the [lawyer’s] conduct is in a different jurisdiction";
Disagrees with the language "a jurisdiction in which the lawyer reasonably believes the predominant effect lawyer’s conduct will occur";
Recommends the proposed amendment to Rule 8.5 be limited to this language:
"(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred."
The Multijurisdictional Task Force made the following recommendations:
1. Protect the public interest in high quality legal services while giving guidance about the kinds of legal work that can be performed in North Dakota by lawyers who are not admitted in the state.
2. Reaffirm support for the principle in current law that the state Supreme Court regulates the legal profession and reaffirm that a lawyer may not practice law in North Dakota in violation of North Dakota rules and statutes.
3. It is appropriate to identify "safe harbors" to allow a lawyer admitted in another jurisdiction to perform legal services in North Dakota on a temporary basis where there is no unreasonable risk. However, the proposed language in the MJP Commission’s proposed draft Rule 5.5(b) is too broad and ambiguous to be enforceable.
4. Barriers that impede an out-of-state lawyer’s ability to conduct investigation and discovery in North Dakota incident to litigation in the lawyer’s home state should be eliminated.
5. The current pro hac vice procedures for litigation should be expanded to include alternative dispute resolution proceedings and appearances before administrative agencies or governmental bodies.
6. Serving as an ADR neutral does not constitute the practice of law and is covered by the safe harbor for work that can be performed by a non-lawyer.
7. For transactions for which pro hac vice admission is not available, an out-of-state lawyer should be covered by a safe harbor while working on a transaction pending in the lawyer’s home state, but association with a licensed attorney should be required where the transaction is pending in or substantially related to North Dakota.
8. Corporate counsel and governmental attorneys should be free to perform legal work for their employers while temporarily in the state, but in-house counsel who establish an office or other permanent presence in the state must comply with registration rules or become admitted to practice in the state.
9. Support adoption of registration rules, whereby an attorney duly admitted and in good standing in another jurisdiction may register and pay an annual fee to the State Board of Law Examiners identical to the fee paid by licensed North Dakota attorneys of comparable longevity. Registered attorneys should be subject to the same continuing legal education requirements as prescribed for North Dakota attorneys and subject to all the rules of discipline and disciplinary enforcement of this state.
10. Support the use of admission on motion rules to facilitate cross-border admission and work toward regional reciprocal admission arrangements with Minnesota, Montana, South Dakota and Wyoming.
11. No safe harbor allows lawyers to hold themselves out to the public as licensed to practice law in North Dakota when they are not.
12. Support amendment of Rule 8.5 as proposed by the ABA MJP Commission.
The Task Force also recommended omitting paragraph (b) of the MJP Commission’s draft of Rule 5.5 as an overly broad exception. They believe North Dakota Rule 5.5 should define specific "safe harbors" for practice by out-of-state lawyers, but should not carve out a general exception that engulfs the rule. They prefer a return to the philosophy of the ABA Ethics 2000 Commission’s proposed Rule 5.5.
OBERT, KEITH D.
Keith D. Obert, a lawyer licensed and practicing in MS, AL, and TN strongly objects to "any loosening of the standards for multi-jurisdictional practice unless those practicing are licensed and qualified to practice in a given area." He warns that a relaxing of standards will result in more TV advertisements and less qualified lawyers.
O’CONNOR, WILLIAM J., II
William J. O’Connor II, a lawyer from Montana, writes to express satisfaction with the present state of the rules governing cross-border practice. He stresses the importance of knowledge of local practice and of the local judiciary. O’Connor would support a provision that bar admission not require state residency for those for whom limits on permissible numbers of pro hac vice appearances is a problem, such as lawyers who practice near state borders.
The Oklahoma State Bar Association writes to convey its support for the Commission’s Interim Report and language in Proposed Model Rule 5.5, with a few suggestions. First, the title of the Proposal or an "implementation note" should recognize that implementing multijurisdictional practice will involve statutes and rules unique to each state, in addition to the Model Rules of Professional Conduct.
Second, Oklahoma suggests this language be added to address what they term a "multi-disciplinary practice concern":
(d)(1) "The lawyer is an employee acting only on behalf of the employer, or on behalf of the employer’s affiliates, in connection with the employer’s matters; provided such matter does not involve delivering legal services to third parties.
Third, Oklahoma notes that although Rule 8.5 may address issues of concurrent jurisdiction, the following language should be added to Proposed Model Rule 5.5:
"A lawyer providing services on a temporary basis as provided herein shall be governed, controlled and may be disciplined by and subject to such statutes and rules of the lawyer’s jurisdiction of admission and the jurisdiction where services are delivered."
William S. Piper of Chicago, Illinois "wholeheartedly supports" efforts to modify the rules on multijurisdictional practice. Piper states that a competent lawyer can recognize when local counsel should be consulted and that many legal issues do not require specific knowledge of state law. In the multijurisdictional litigation contest, pro hac vice rules should suffice.
John Platt of Arizona writes to express his opinion that failure to grant reciprocity for passing the bar in other states is "purely a protectionist policy trying to reduce competition.…" For Platt, reciprocity is "a good free market idea."
The ABA Standing Committee on Professional Discipline supports Recommendation 7.3 regarding promotion of interstate disciplinary enforcement mechanisms. As to Recommendation 7.1, the Discipline Committee concurs with the amendment of Rule 8.5 of the Model Rules of Professional Conduct to better address MJP. However, the Discipline Committee believes statements about a lawyer’s "reasonable belief" in Rule 8.5(b) on choice of law and in the Commentary will "create the potential that every lawyer charged under it will claim a reasonable belief that the predominant effect of the lawyer's conduct was in a jurisdiction where that conduct conformed to the rules." Thus, the Discipline Committee recommends deleting the last sentence ( underlined) below in the amendment of ABA Model Rule of Professional Conduct 8.5(b) proposed by the Ethics 2000 Commission:
A lawyer is not subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.
It also recommends deleting the underlined analogous language in the proposed amendment of Comment :
When a lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer's conduct conforms to the rules of jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer is not subject to discipline under this Rule.
If reasons exist for the provision of a "reasonable belief" exception, the Discipline Committee urges the Commission to provide examples or clearly place the burden upon the lawyer to prove that the belief was reasonable under the circumstances.
The Discipline Committee supports the call in Recommendation 7.2 for states to adopt Rule 22 of the ABA Model Rules of Disciplinary Enforcement on reciprocal enforcement, but makes the following comments regarding the Commission’s proposed amendments to Section D of Rule 22:
Rule 22 is clear in its intent that, in reciprocal discipline cases, the imposition of some sanction by the licensing jurisdiction is presumed. If the Commission feels confusion exists on this point, it should add a clarifying statement in the Comment to the rule;
The original subparagraph (4) of Section D should be reinstated;
The term "inconsistent" should be substituted for "offensive" in the proposed amendment to subparagraph (3) of Section D, which states that a court shall impose identical discipline unless it finds that it would result in grave injustice or is offensive to the public policy of the jurisdiction.
Santa Clara County Bar Association endorses a proposal to permit lawyers licensed in other states and awaiting admission to the local bar to perform legal services for indigent clients under the supervision of a local lawyer. Such a proposal was included in the final report of the California Supreme Court Advisory Task Force on Multijurisdictional Practice, though not in the ABA MJP Commission’s Interim Report. Such a provision may assist in recruiting lawyers to legal services agencies and should be included if current strictures on MJP are loosened.
Howard J. Shulman, a lawyer in good standing in N.Y. and P.A., fully supports the Commission’s Interim Report. He would go beyond the recommendations of the Commission and advocate a "national law practice rule" providing for "one I.D. card for each attorney, admitted in any state, and valid in all 50 states."
TORT AND INSURANCE PRACTICE, ABA SECTION OF, (TIPS)
Pro Hac Vice Rule with Comments (Final)
TIPS joins with IADC and the ABA’s Litigation Section in submitting a February 25, 2002 Model Rule on Pro Hac Vice Admission that blends the black letter rule proposed by the Litigation Section with comments drafted by TIPS/IADC.
For a summary of the final version of the rule, dated March 15, 2002, see Litigation, ABA Section of, above.
UNION INTERNATIONALE DES AVOCATS
UIA's Standards for Lawyers Establishing a Legal Practice Outside Their Country;
UIA's Minimum Standards for Multidisciplinary Practice
The Union Internationale des Avocats offers for consideration and information its proposed UIA Standards on international legal practice that address the problem of law firms or individuals establishing themselves "somewhat permanently" in a foreign country. (Also attached are Minimum Standards for Multidisciplinary Practice to which the Standards on international legal practice refer.) The Union Internationale des Avocats suggests that the MJP Committee recommend an approach to MJP within and outside the United States that is "internationally acceptable and takes into account the legitimate concerns of the organized bar in other countries as well as our own."
The Unites States Army Standards of Conduct Office urges the Commission to make specific reference to military and government lawyers in the list of UPL safe harbors. The safe harbor language they would include in Model Rule 5.5 (d) is as follows:
(3) Federal Lawyers and State National Guard Lawyers. When a lawyer
Acts officially on behalf of either
A federal agency or
A state National Guard agency; or
A federal lawyer or
A state National Guard lawyer
a. Provides premobilization, postmobilization, or legal assistance services (pursuant to 10 U.S.C. sec 1044, et. seq., state law, or directives or regulations implementing federal or state law); or
b. Provides advice or practices in the fields of criminal justice, nonjudicial punishment, or other adverse administrative actions.
The Unites Stated Department of Defense urges the Commission to delete the following language from note 44 to Comment 3.8 (p. 45 of the Interim Report), which states that the Commission "is uncertain whether military lawyers are in fact legally authorized to represent individuals outside the jurisdictions in which they are licensed." The Department of Defense asserts that this language will cast doubt on whether military legal assistance attorneys are covered under proposed Rule 5.5(d)(2).
In a letter dated January 8, 2002, J. Eric Schaal, in-house counsel with USG Corporation, suggests a policy to avoid the "socially useless exercise of multiple bar exams" for relocating lawyers: a lawyer who passes the multi-state bar exam should be able to apply for admission to any local bar in the U.S and exam results should be valid for a reasonable time, such as 4-5 years. According to Schaal, whatever is selected as the "reasonable" length of time should also be the minimum years of active practice necessary to permit admission on motion. Schaal does not object to other admission requirements for relocating lawyers such as submission of personal data, CLE commensurate with that required of other bar members, and even mandatory pro bono for some period after admission.
White & Case LLP, a firm with a practice that spans the nation and the world, recognizes that the Commission’s Interim Report is "a substantial step forward in advancing the ability of lawyers to service interstate and international clients" however, the firm prefers adoption of the "Common Sense Proposal for MJP Reform."
The Wisconsin Delegation to the ABA House of Delegates writes to urge that the Commission not propose rules that would discriminate against Wisconsin lawyers who have been admitted by diploma privilege. This sentiment echoes that expressed in testimony before the Commission by Gerald Mowris, President of the State Bar of Wisconsin, and Richard Podell, member of the ABA Board of Governors, and in a letter to the Commission from Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court.
Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court, writing on behalf of the Wisconsin Supreme Court, joins with the State Bar of Wisconsin to urge amendment of the proposed model rule governing Admission on Motion. Suggested changes to subdivisions (a) and (d) of the rule provide reciprocal credit for lawyers who were admitted to practice pursuant to Wisconsin’s diploma privilege:
Have been admitted by Bar examination or by diploma privilege to practice law in another state, territory, or the District of Columbia;
Have been admitted to practice law in another state, territory, or the District of Columbia;
(d) Submit evidence of a passing score on the Multi-state Professional Responsibility Examination as it is established in this jurisdiction unless the candidate was admitted pursuant to the diploma privilege in a state that does not require the Multistate Professional Responsibility Examination.