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American Bar Association Commission On Multijurisdictional Practice

Transcript Of Public Hearing
May 17, 2001












10 Friday, May 18, 2001

11 2:00 p.m. - 4:00 p.m.

12 The Marquis I Building, Suite 510

13 Peachtree Center Avenue and Harris Street

14 Atlanta, Georgia 30303








Reported by:


Audrey Michelle Ling CCR

23 Kathy Hill & Associates

Certified Court Reporters

24 Post Office Box 50323

Atlanta, Georgia 30302

25 (404) 799-0732






























1 MR. McCALLUM: On behalf of Chairperson

2 Wayne Positan and the members of the ABA

3 Commission on Multijurisdictional Practice,

4 including myself and my colleagues Alan Dimond

5 and Larry Ramirez, we want to welcome our

6 speakers and other guests to this public hearing,

7 which we will try to conduct relatively

8 informally.

9 The Commission was appointed in the late

10 summer of 2000 by ABA President Martha Barnett.

11 The Commission's term has been extended until the

12 August annual meeting of the ABA in 2002 in order

13 to give the Commission adequate time to conduct

14 hearings and conduct deliberations.

15 From the beginning the Commission has been

16 committed to seek out the views of practicing

17 lawyers, academics, bar officers and state and

18 local bar association officials and those active

19 in all aspects of bar regulation and discipline.

20 The Commission has held hearings in Dallas, San

21 Diego, New York, Kansas City; and we will hold

22 hearings later this month in Miami and then in

23 the summer in Chicago.

24 The Commission's work plan calls for its

25 preliminary report to be issued by the end of



1 November, probably to go to and get comments from

2 the ABA Midyear Meeting in February. After

3 possible further hearings as yet unscheduled, the

4 Commission would then propose to issue its final

5 report probably sometime in April of 2002, to go

6 to the House of Delegates at the ABA 2002 Annual

7 Meeting.

8 This is your hearing. Like all lawyers, the

9 Commissioners hold personal views on a great many

10 topics, some of which they're competent to hold

11 opinions on, others which they're not. But we

12 are all resolved not to begin defining the

13 Commission's position on this topic until we have

14 completed the public hearing process.

15 We have several speakers scheduled. We're

16 going to try to give those scheduled speakers

17 time to present their remarks and answer

18 questions. But basically we would like to

19 operate informally in a more or less round-table

20 format. That has been, as we've gone through

21 this process, the most successful manner of

22 conducting our hearings.

23 We are having these sessions transcribed, I

24 think, recorded and transcribed. I think you've

25 all given the reporter your cards or information



1 for her records, and I see there are name tags,

2 so I don't know that we need to do any more

3 initial introductions.

4 And so why don't we launch ahead. And Bill

5 Smith, who has been with us through, shall we

6 say, thick and thin of all of this, would you do

7 us the kindness of opening up and introducing

8 some of your colleagues who are going to speak.

9 MR. SMITH: Thank you, Charlie.

10 Charlie, Alan and Larry, you may rest easy.

11 Even though my name is down as a speaker, I do

12 not plan to make any formal presentation. You've

13 probably heard me ad nauseam already. I mean,

14 after all, I've given you the correct solution.

15 And after having done that, I don't know what

16 else I can do.

17 My test this afternoon is to introduce the

18 co-chairs of the Multijurisdictional Practice

19 Committee here in the state of Georgia. We were

20 appointed about four or five months ago and have

21 been meeting and appreciate the information that

22 we've gotten from the ABA that we've been able to

23 use in our meetings.

24 I am to introduce Chris Townley and Dwight

25 Davis. It's going to be a little difficult to



1 introduce Dwight Davis because he's not here. I

2 suspect the reason he is not here is because he's

3 probably the one whose office is the closest to

4 where we've having the meeting, and that's

5 probably the reason he's tardy.

6 But I will introduce Chris Townley. Chris,

7 as I said, is a co-chair of our committee, and

8 he's a member of the Board of Governors of the

9 State Bar of Georgia. He practices in Rossville,

10 Georgia. And he brings a small-town,

11 border-town, small-practice perspective. And I

12 think what he has to say is going to be of

13 interest to us because I think his is a

14 perspective that may not be articulated as well

15 as Chris will be able to articulate it.

16 A lot of what we've heard and what we've

17 discussed has been the way in which this process

18 is going to impact the larger firms. But it

19 rains on everybody equally, and Chris is going to

20 talk about how the rain is going to fall on that

21 multitude of small-border-town practitioners who

22 will gain the benefit of whatever is done.

23 Chris?

24 MR. TOWNLEY: Thank you.

25 As Bill said, I practice in Rossville. For



1 those of you who don't know where Rossville is --

2 MR. SMITH: They all know. They all know.

3 MR. DIMOND: You can tell us anyway, just in

4 case.

5 MR. TOWNLEY: My office is literally less

6 than a mile from being in Chattanooga, Tennessee.

7 And the practice that I have there is a

8 small-town litigation practice where I do a lot

9 of criminal work, a lot of domestic work and a

10 lot personal injury cases.

11 I heard someone earlier at the luncheon

12 saying something about answers, and I'm certainly

13 not going to be the smartest person y'all are

14 going to hear from. And I don't have answers for

15 you, but I know a lot about the problem because

16 from the location that I'm at, not only am I

17 within a mile of Tennessee, within 30 minutes I'm

18 in Alabama, and it doesn't take very long for

19 people from North Carolina to come visit. And so

20 we get to experience a lot of the

21 multijurisdictional practice, some of which is

22 authorized practice and some of which is not.

23 There are two basic issues that we keep

24 seeing coming up within our committee, and one of

25 them, of course, is the protectionalism of the



1 attorneys, and the other is the need to protect

2 the public.

3 And in our committee we act like it's kind

4 of a dirty word to talk about protecting the

5 attorneys, but it's the reality of the practice

6 along those borders in this respect: I don't

7 really care what the rules are, as long as it's

8 the same on both sides. If they can cherry-pick

9 my clients and I can cherry-pick theirs, it's

10 okay. But you're always going to have a problem

11 getting anything through if the Tennessee

12 attorneys can come down and practice at will in

13 Georgia but I can't go across.

14 That's not just an attorney problem. It's

15 also the clients'. Why should I set up my office

16 in Walker County, Georgia, if I can just go a

17 mile across the line and I can practice freely in

18 Georgia and in Tennessee, but I couldn't do it

19 the opposite way? I think the reciprocal nature

20 has got to be addressed if there is going to be

21 any meaningful, large-scale change to existing

22 rules.

23 As far as the clients' needs, part of which,

24 looking through the materials that y'all have

25 been putting together, you're already focusing



1 some on. If I'm representing a Georgia client on

2 a Georgia case, because of location, most of the

3 witnesses, most of the transactions a lot of

4 times are going to happen in Chattanooga. We're

5 a bedroom community. And as a result, our major

6 hospitals, our major corporations, our major

7 employers are across the line. And we have to do

8 depositions and investigation all the time. As

9 far as the needs of the client, the client needs

10 that a Georgia attorney on a Georgia case can go

11 across the line and work on their case. What

12 they don't need is the cost and expense of hiring

13 a second attorney.

14 The other part, as far as what clients in

15 our area would want, is they want their lawyer.

16 Because it's a smaller community, for 20 years I

17 don't do advertising, I don't put things on TV.

18 What I do is I want to have lots of people in my

19 community say, "Chris Townley's my lawyer."

20 Now, they may think that I'm their lawyer

21 because at the ball field they asked me a

22 question and I helped them or at the bowling

23 alley they were bowling on the other team and we

24 talked about it. And after a while you have this

25 whole realm of people who think that you are the



1 lawyer and you're the one that can handle their

2 family's problems.

3 And there is probably not a day that goes by

4 that I don't have at least one call at the office

5 asking me to go into Tennessee and do them a

6 case. Unfortunately, that's not the end of the

7 problem. That's what the clients want. What

8 they need may be a different thing.

9 They see the practice of law and type of

10 litigation that I do as being like a doctor

11 fixing a broken bone. The doctor has an office

12 at Fort Oglethorpe in our county. The

13 doctor also has an office in Chattanooga. And he

14 can fix that broken bone in either county, and it

15 doesn't really make any difference what state

16 he's in. He does it the same way. But to do a

17 divorce case or to do a criminal case is so

18 substantially different in those two, but the

19 general public doesn't really understand that

20 conception.

21 In getting ready to come talk to y'all, one

22 of the things that I wanted to do was I talked to

23 a couple of the judges in the area, because they

24 don't have a financial interest.

25 One of the judges that I talked to, in fact,



1 his background was as a district attorney, and he

2 really has not had a private practice. And I

3 talked to him some about this idea of attorneys

4 who have been out there for several years being

5 able to just come across and practice, as long as

6 they're not doing over 25 percent of their

7 practice or setting up office there. And the

8 reaction that I got from both of them separately

9 was exactly the same, which is they groaned when

10 I talked about it. That was the exact reaction

11 from both of them. They deal with people coming

12 across the line to practice all the time.

13 Every court has two sets of rules. They've

14 got your state laws and court rules. And the

15 second rules are the "do it" rules. This is how

16 we do it here. I can go to Brunswick, which is

17 seven hours from where I am, and be in Georgia.

18 And I'm at a disadvantage because I don't know

19 their "do it" rules. But I'm on the same level

20 as far as what the Georgia rules are, what the

21 court rules are.

22 I can drive ten minutes to the Chattanooga

23 courthouse, and I'm at a disadvantage not only on

24 the "do it" rules, but I don't know their laws

25 the same way that I would seven hours away in



1 Brunswick.

2 When I talked to the judges, one of the

3 things that I brought to them is that we do have

4 a rule in Georgia that requires that if you're

5 practicing here, you're going to do it

6 competently. So somebody who is simply coming

7 across from Tennessee to Georgia can't come in

8 and practice unless they do it competently.

9 And I asked them about that making a

10 difference. And, again, separately, I got the

11 same reaction from both of them. Each of them

12 laughed when I told them that. The reason why

13 they laughed is it's such a low standard.

14 Especially in the criminal field, what is

15 competent is: Did you ask questions? Did you

16 file any kind of motions? Did you at least give

17 it a shot on cross? Now, if you're pretty close

18 to that, you're not far off competent.

19 Now, maybe in New Mexico y'all handle that a

20 whole lot better than we do.

21 MR. RAMIREZ: I doubt it.

22 MR. TOWNLEY: But that's the way it plays.

23 One of the judges, the one who does the criminal

24 work, was explaining that part of what is

25 intriguing about being on the bench is that he



1 loves to see the strategy between the lawyers.

2 And you see the one setting up the trap and the

3 other one recognizing it and maneuvering around

4 and the back and forth and the long plan, whereas

5 if I do this on this witness, three witnesses

6 down this is what will occur.

7 And one of his concerns about opening things

8 out is simply the fact that even when we have

9 good lawyers from Tennessee, they step into traps

10 and problems that in their home state, where

11 they're used to the rules, they're used to the

12 laws, they would never in their wildest dreams

13 step into.

14 It's simple things. We have a strange rule

15 in Georgia. The judge gives the charge to the

16 jury. In civil cases you have to then except and

17 object to whatever it is that you find

18 inappropriate in the charge, just as you would in

19 federal court.

20 However, in criminal, if you simply say, "We

21 reserve the right to exception until the time of

22 appeal," you don't have to object. You don't

23 have to present any objection ever to the trial

24 court. You can wait until you have the

25 transcript, sit around for hours studying it, and



1 then make your objections.

2 So what happens when we're in court? Our

3 judges say, "Do you have any exceptions?" The

4 prosecutor, who can't appeal, always jumps up and

5 immediately says, "No, sir, your Honor, it was a

6 fine charge. You did an excellent job. No

7 problem." And the attorneys who don't know stand

8 up, and they follow suit or they make some

9 exception.

10 I talked to the judge about the fact that

11 isn't that the same, though, with young lawyers?

12 Don't young lawyers who don't know that fall into

13 the same position? And his position was yes, but

14 the difference is that you have a group of

15 attorneys who are a part of the community, who in

16 one way or another mentor. If it's somebody

17 who's a good, young lawyer, who's trying hard,

18 they take them under their wing and try to help

19 them. If somebody who's on the wrong track is

20 not, they may kick them in the butt a little bit

21 and get them to focus. But that's what they can

22 do.

23 But a lawyer who is just stepping in and

24 trying something and going home doesn't have that

25 relationship to have the help to learn how it's



1 done. And that's not just the "do it" rules.

2 The one judge who does the criminal work's

3 prediction is that if it expands out and we do

4 something like the green card, where you come in

5 after three years and handle cases, that what's

6 going to happen is that with the good lawyers,

7 things aren't going to be much different. A real

8 fine lawyer from Chattanooga is going to still

9 come down and he's going to get somebody to help

10 him.

11 And what we're going to get is we're going

12 to get the people, the attorneys who are

13 struggling, who will take whatever walks in the

14 door and will put a dollar on the table, and

15 that's what's going to be coming down and trying

16 the cases. And he's extremely concerned about

17 the effect that it's going to have not only on

18 the criminal defendants but also the impression

19 within the community on how criminal cases are

20 treated and the kind of representation that comes

21 forward.

22 I said I talked to two judges. The other

23 judge does a lot of domestic work. And his

24 concern was in the domestic arena because, again,

25 we see attorneys coming down fairly regularly who



1 will just appear from Tennessee to try a domestic

2 case. They may be a good lawyer. If I'm trying

3 a domestic case, I want a good lawyer on the

4 other side. I'd much prefer a good lawyer

5 because if I have a good lawyer, we can cut to

6 the chase. We know what the laws are. We know

7 what the rules are. We know what the judge is

8 going to do. We can focus on what our real

9 issues are.

10 What this judge said his experience is is

11 that the lawyer who just comes in to a

12 jurisdiction and then goes back out isn't

13 comfortable. Even a good lawyer isn't

14 comfortable. And what happens is, when you're

15 not comfortable, instead of leading their

16 clients, they tend to follow their clients. My

17 client wants this, and they go for that because

18 they're not strong enough and firm enough in

19 their own knowledge to say, "You're not going to

20 get it. You're wasting your time. We're not

21 going in there and arguing about this." The

22 result is that you end up trying cases, taking a

23 lot of judicial time unnecessarily.

24 The second thing is that the ones who do

25 follow their clients sometimes end up settling



1 and giving away without knowing. You can read

2 the rules, and you can read the statutes. And as

3 y'all know as attorneys, it's that interpretation

4 of the statutes that makes a lot of difference.

5 And if you don't keep up on a regular basis, it

6 is hard to make that transaction or transition.

7 The other thing that he said that he had

8 noted was that you would have a concept of:

9 Let's get a high-cost attorney and bring him into

10 town to try the case. That attorney isn't going

11 to lower his fee to come Georgia. If anything,

12 he's going to increase his fee. But that

13 attorney is worth less in Georgia than he is in

14 Tennessee because he lacks the knowledge and

15 background that he has at home.

16 The bottom line is, as Bill Smith has

17 continuously reminded up us through the years,

18 that we are supposed to be a profession. We are

19 supposed to govern ourselves accordingly.

20 It would be to my financial interest if

21 y'all opened the doors up, let me hop back and

22 forth, because that's what my clients want. I

23 don't have to worry about getting business. I've

24 got it there because it's a small town and I've

25 been there forever. And to be able to go back



1 and forth would help my pocketbook. But it's not

2 in my clients' best interest. I have two

3 attorneys in my office who are licensed in

4 Tennessee, and we still pretty much stay home for

5 the reasons I've said.

6 You're going to have to do something for

7 in-house counsel. We know that. You're going to

8 have to do something for transactional lawyers.

9 You know that. But in doing that, you're going

10 to have to be careful that you still continue to

11 protect the small clients, the everyday people on

12 the street, the general public. And you're going

13 to have to protect them from attorneys who don't

14 have somebody like Bill Smith continuously saying

15 in their ear that you've got to put the

16 profession first and who think that you should

17 jump across the line because there's more green

18 on the other side.

19 That's basically what I have to say.

20 MR. McCALLUM: Thank you very much. Maybe

21 what we ought to do is let Dwight present next,

22 and then we can have some questions.

23 Would that be all right with you, Chris?

24 Does that fit your timetable?

25 MR. TOWNLEY: Whatever.



1 MR. McCALLUM: Okay. Do you want to

2 introduce him?

3 MR. SMITH: Yeah. I can introduce him now

4 because he's here.

5 Dwight, we just concluded that the reason

6 you weren't here was because you were the person

7 who had the office closest to where we're

8 meeting.

9 Dwight is the co-chair of our

10 multijurisdictional practice Commission. He

11 comes from the other end of the spectrum. He is

12 a big-firm lawyer. In fact, my guess is that if

13 you look now, he has on silk stockings. I don't

14 know. I didn't check.

15 MR. DIMOND: They look like silk. Let's let

16 the record note that.

17 MR. SMITH: Dwight comes from the large-firm

18 perspective. And, Dwight, what do you have to

19 tell us?

20 MR. DAVIS: I'm a lifelong, or at least

21 career-long, member of the litigation group at

22 King & Spalding. I've been in the Atlanta

23 office. King & Spalding does have four

24 offices: one in New York; one in D.C.; one in

25 Houston; and the largest, which is in Atlanta.



1 I do think that my practice presents the yin

2 to Chris's yang of the problems that this

3 practice presents. There are about 650 lawyers

4 at King & Spalding. Half of them are

5 transactional lawyers, half of them are

6 litigators. We represent Fortune 500 companies

7 and, in all candor, probably national companies

8 on a regional basis and regional companies on a

9 national basis is what we aspire to.

10 I have been the head of the business

11 litigation team at King & Spalding now for a

12 little over three years. I have about a hundred

13 timekeepers in my team.

14 All of the members of that team are based in

15 Atlanta because, again, in preparation for this

16 meeting, I, with my eyes now open to the issue of

17 multijurisdictional practice, sent around a

18 little questionnaire to all the timekeepers on

19 our team and asked -- excuse me -- all the

20 lawyers on our team and asked: In the past 30

21 days, have you engaged in a hearing, a meeting, a

22 deposition or investigation in a state in which

23 you are not licensed?

24 And I'm pleased to report that the answer

25 came back that 100 percent of them had done that



1 at one time or the other. I would have been

2 concerned if they had not, I guess, because we

3 are, at clients' requests, routinely engaging in

4 what could broadly be defined as the practice of

5 law in jurisdictions in which we are not

6 licensed. And mercifully, up until now, we have

7 done so without any bar repercussions.

8 When we are in actual litigation, we are

9 scrupulous about following the pro hac vice rules

10 and get admitted. I'll address those concerns

11 about that in a few minutes. Other than that, it

12 never crossed the litigator's mind that we were

13 doing anything wrong if we were out doing fact

14 investigation in another state and/or conducting

15 depositions in other states so long as we were

16 admitted pro hac vice in the case in which it's

17 pending, and everything can go along that way.

18 Our committee is just beginning its work.

19 And like Chris would say, we're not here to give

20 you any answers. I'm encouraged that our

21 beginning work seems to be using the same

22 framework and coming across the same issues and

23 trends that the ABA Committee is focused on.

24 I think that the analysis can break down.

25 It's like a matrix. You're going to work out



1 eventually: Is the conduct being discussed

2 episodic, transient or permanent? Next is the

3 geography of it. Are you physically located in a

4 location or are you doing it virtually as another

5 part of this matrix? And then finally, is it

6 transaction litigation or quasi-litigation in how

7 the activity will break out?

8 I'm not going to repeat many of the thoughts

9 that Chris had also applied to the big-firm

10 practice and the issues that I think concern my

11 constituency, if I have one. We also want

12 reciprocity. We want it to be fair and be

13 treated the same as litigators and transaction

14 attorneys are being treated in other

15 jurisdictions.

16 I suspect I might be a bit more of a free

17 trader than Chris would be. I'm willing to let

18 the marketplace be the marketplace. In all

19 fairness to Chris's position, I understand the

20 distinction he's drawing.

21 I deal with clients primarily that have

22 in-house counsel. Cadenhead used to be one of

23 those clients. They know they can trade horse

24 flesh. They know which lawyers are good.

25 Whether my value is going to be diminished



1 because I'm asked to go to another state can be

2 left up to the client to determine. I also

3 represent clients that normally can pay the

4 freight for a larger law firm and a law firm

5 locally to make sure that we do know all those

6 "do it" rules and the other things that go on in

7 a courthouse. And so I think that the public is

8 being protected at my end of the spectrum because

9 they've got lawyers in-house that are helping

10 them.

11 The other preliminary thought that we have

12 is: I think everybody just will need to

13 recognize that episodic and transactional

14 lawyering and prelitigation activity is going to

15 be, if not impossible to regulate, at least all

16 you're going to regulate will be reactively.

17 You're not going to be able to say who can come

18 into the airport here in Atlanta, do some

19 business transaction and leave before Bill Smith

20 or anybody else knows anything about it. You're

21 just not going to be able to do that

22 prospectively.

23 If you are going to do it reactively, then I

24 really do think that the ABA could add great

25 value if they would work on a model interstate



1 protocol that would ensure that one state is

2 going to enforce the disciplinary rulings of a

3 state bar of another state.

4 In my own mind, I've come to peace with that

5 because if a lawyer voluntarily goes into a new

6 geographic area, he or she should familiarize

7 themselves with the rules that apply in that

8 jurisdiction and comply with those rules. And if

9 they don't, they're the ones that have put

10 themselves in harm's way. And their state bar of

11 their home state should not have any qualms at

12 all about enforcing even Draconian penalties that

13 might be imposed on that lawyer by the state in

14 which he or she went in and practiced.

15 If you were to have some kind of protocol

16 where one state were to give full faith and

17 credit to the rules of another state disciplinary

18 proceeding or bar, one, you might actually cut

19 down on interstate trafficking or transportation

20 of lawyers from one state to the other, but you

21 would also, I think, better hit what we should

22 all say is the legitimate reason for having

23 regulation of lawyers, that is, to protect the

24 public.

25 My next area of concern is the restrictions



1 on pro hac vice admissions in litigation. I'm

2 beginning to see a dangerous trend, from my point

3 of view and my practice's point of view and, I

4 think, for the protection of the public's point

5 of view on some states enacting restrictive,

6 clearly bar-protective pro hac vice rules.

7 And to speak a little bit out of school but

8 by name, our brothers and sisters of the bar

9 below the Gnat Line here in Georgia down in

10 Florida have recently passed a new state bar

11 regulation that says that if you are engaged in

12 more than three pieces of litigation, you are

13 engaged in the full-time practice of law. And

14 then the only people who are allowed to engage in

15 the full-time practice of law in Florida are

16 members of the Florida bar.

17 And that's plainly being used as a way to

18 try to regulate and restrict lawyers from out of

19 state coming in, even on an episodic or

20 transaction or transitional basis, and having

21 four lawsuits going on at the same time and then

22 ruling that that is a full-time practice of law

23 and, therefore, you're not allowed to do that

24 unless you're a member of the Florida bar. I

25 think that if you applied logic to that rule, you



1 would say, "Why would you have this rule?" It

2 should be to protect the public. That's the only

3 legitimate reason for having such a rule.

4 Well, then what does this rule do? That

5 keeps out the competent lawyer who may have had

6 five, six, seven, eight cases in Florida and

7 would know something about the Florida procedure

8 and instead only lets in the weak lawyer, the

9 lawyer that's only had one or two cases before

10 the particular tribunals. And so they get to

11 come in, I guess, so that the Florida lawyers can

12 pick on them, and the good lawyers or the lawyers

13 that have had multiple experiences in Florida are

14 kept out.

15 I use that example just to show that it

16 really makes no sense. It is indefensible.

17 There's no reason why a Court shouldn't be able

18 to allow any lawyer without regard to the number

19 of times that lawyer has asked for pro hac vice

20 admission to come into that court if they

21 otherwise are qualified. And I can't think of a

22 legitimate reason for the current Florida rule.

23 And I would just caution against any kind of bar

24 rules which are at bottom protective of the

25 members of the bar and not protective of the



1 members of the public.

2 With that, I would welcome any questions.

3 MR. McCALLUM: Thank you. I think we will

4 throw it open.

5 Do our Commissioners have questions for

6 either of our speakers?

7 MR. RAMIREZ: I do.

8 MR. McCALLUM: Do you want to defend

9 Florida?

10 MR. DIMOND: We need no defense. I was

11 interested in what the rascals were up to.

12 MR. DAVIS: We'll do it next.

13 MR. DIMOND: Well, I'll tell you how all

14 that got started. Some aggressive Florida

15 personal injury lawyers were routinely handling

16 cases in North Carolina and applying for pro hac

17 status in North Carolina. And North Carolina

18 judges started saying, "You fellows are up here

19 all the time. When are you going to get

20 yourselves licensed?" And after a while, on

21 hearing that they had no interest in obtaining a

22 North Carolina license, the Courts up there

23 started saying, "We've got enough of these

24 Florida lawyers coming up here and handling these

25 personal injury cases, and we're not going to let



1 them do it anymore."

2 And to make matters worse, especially for a

3 firm your size, they began applying new rules

4 based on the firm appearances as opposed to the

5 appearance of individual practitioners. So the

6 accumulated number of appearances then began to

7 count against the firm. And I guess in a firm

8 like yours, which is regional in nature, that

9 would be a disaster.

10 One of the questions that occurred to me,

11 though, is: How do you draw the line, if you're

12 Florida or Georgia, in terms of how many

13 appearances by an individual attorney are

14 appropriate before you can say that individual

15 attorney may live in Georgia and he may have a

16 shingle in Georgia, but he's down here every day?

17 How do you draw that line, or do you?

18 MR. DAVIS: The states that I'm most

19 comfortable with are those that say even the

20 first appearance pro hac vice, and maybe more

21 important in the first appearance pro hac vice,

22 you've got to have local counsel with you, as

23 long as you have someone that you're bringing

24 with you.

25 Obviously, some client has made the



1 determination that for that particular matter,

2 I'm the best person to come in and handle it. If

3 I get local counsel to help balance that out,

4 really, why should it matter if I'm there one

5 time or 50 times?

6 MR. DIMOND: Well, I'm really not picking on

7 you, because I think the discourse is helpful.

8 But Chris says, "Well, wait a second. My folks

9 can't afford that local counsel, and you're going

10 to impose upon everybody a burden of two lawyers.

11 People in my hometown can barely afford me. How

12 are they going to afford that Tennessee lawyer

13 across the way?"

14 So how do you make that distinction?

15 MR. DAVIS: Again, I'm familiar with many

16 Courts that have that rule, and it seems

17 perfectly reasonable to me. I mean in my mind,

18 that is protecting the public from the

19 incompetent lawyer, or the unwary lawyer, if not

20 incompetent. And, therefore, I guess in that

21 particular case, the client just could not afford

22 or could not bring in the lawyer from out of

23 state.

24 We're going to protect them from themselves.

25 They don't know that that person working without



1 a local counsel is not going to be effective and,

2 in fact, will probably get him in more trouble

3 than not.

4 MR. DIMOND: Is there a rule in either

5 Georgia or Tennessee state courts that you have

6 to have local counsel if you're appearing without

7 a license in that state?

8 MR. DAVIS: It's by local rule in most

9 places that I'm familiar with here in Georgia.

10 Chris, is that up in your area too?

11 MR. TOWNLEY: In the counties that I deal

12 with in Georgia, they do it on the discretion of

13 the judge.

14 MR. SMITH: The state law, the rule itself

15 doesn't require it. It's left up to the

16 discretion of the judge, and a lot of judges

17 require it.

18 MR. DIMOND: How about the federal courts

19 here in Tennessee? Do they require local counsel

20 formally in terms of the local rules?

21 MR. TOWNLEY: In the district courts in

22 Tennessee, you have to be admitted or have local

23 counsel. But the admission is simply a matter of

24 saying, "I've been admitted somewhere else, and

25 I'm in good standing," and you're admitted.



1 MR. DAVIS: But it sounds like in Georgia,

2 the three districts in Georgia, you do have to

3 have a member of that bar on the pleadings.

4 MR. DIMOND: In a way, that's the opposite

5 of what we've been talking about here in terms of

6 opening the borders. You're talking then about

7 you can come into any other state, but you've got

8 to have a local person. And I think maybe the

9 public would perceive that as a lawyer's relief

10 regulation. It just means you've got to have

11 another guy sitting there, because they may not

12 appreciate the -- what was the expression? -- the

13 "do it" rules.

14 MR. McCALLUM: Let me ask a question as a

15 nonlitigator before this meeting is totally

16 dominated by litigator discussion. But in the

17 federal court practice, it strikes me, except for

18 what you've now educated me about, that what you

19 really said is, "If I'm admitted to practice in a

20 federal court somewhere and have perhaps some

21 reasonable experience with it, I can rather

22 easily, with minimal cost, get admitted in other

23 districts, other federal districts; that is, I

24 might spend most of my time -- what do you have,

25 a Northern, Central and Southern District of



1 Georgia?

2 MR. DAVIS: Yeah.

3 MR. McCALLUM: I might be normally

4 practicing in the -- is this the Central?

5 MR. DAVIS: Northern.

6 MR. McCALLUM: It's the Northern. I might

7 normally practice in the Northern District, but

8 I've got a case down in Savannah, let's say. And

9 I can handle that case. I really don't need a

10 local counsel. I mean I might want one for other

11 reasons. But I can get admitted to appear in

12 that district simply by going in and basically

13 filing papers, and not such a huge fee that it

14 becomes penal. Is that generally true?

15 MR. TOWNLEY: It's generally true.

16 MR. DAVIS: Well, you may have used a bad

17 example because in the Southern District of

18 Georgia, first of all, you should make sure

19 you've got a Southern District lawyer.

20 MR. McCALLUM: That's what I want to be

21 educated about.

22 MR. DAVIS: Yes, you do. The Southern

23 District -- Bill, isn't this true? -- they have a

24 local rule that you must have a lawyer admitted

25 in the Southern District on the pleadings; and



1 furthermore, every pleading must be signed by a

2 member of the bar of the Southern District. This

3 has been quite a --

4 MR. SMITH: I avoid the Southern District

5 like the plague waved in it.

6 MR. CHADWICK: As a member the Southern

7 District, Dwight's comment is that in the federal

8 system you'd better have a member of the Southern

9 District with you and that they sometimes work

10 with the same big city --

11 MR. McCALLUM: Has this not been something

12 of a bone of contention or an argument point in

13 the federal practice around the country, that

14 there are lawyers who would like to see the

15 federal practice made more uniform and more

16 uniform rules for interdistrict admissions and

17 there are others who are clinging rather firmly

18 onto local court ability to set secret "do it"

19 rules? That's a quaint term. I love that term.

20 I hope we get to use that in our final report.

21 MR. DIMOND: That's a great term.

22 MR. McCALLUM: In the litigation bar,

23 particularly in the federal litigation bar,

24 hasn't that been something of a topic, but

25 nobody's ever been able to get anyplace with it?



1 MR. RAMIREZ: That's a judges' conference.

2 MR. DAVIS: Actually, I think they are

3 getting somewhere with it, don't you think?

4 MR. RAMIREZ: There's a federal judges'

5 conference right now that's been created to study

6 the differences in the rules among the federal

7 districts and try to get more uniformity so that

8 the federal practice is more uniform.

9 MR. DAVIS: Recently, just within the last

10 three years, there's been a good example of that.

11 There was a proposed amendment to Rule 26, which

12 governs the scope of discovery in federal cases.

13 And it was going to be more disclosure rather

14 than discovery. You have to volunteer stuff

15 early in case.

16 And they tried for a while to say, okay,

17 that's the rule, but it can be modified by local

18 rule. Well, it wasn't two weeks later, there was

19 just this crazy quilt. I mean you had no idea

20 what the rules were and what you were obligated

21 to. And, of course, those things all have very

22 short time fuses on them, so we were all very

23 concerned about it.

24 And then just this past year, effective

25 January 1 of 2001, now that's uniform everywhere.



1 That is Rule 26. It can't be modified by local

2 rules. That's why I say I feel that they are

3 concerned about that and are moving in that

4 direction.

5 MR. RAMIREZ: Chris, you made a statement

6 that you felt like -- I want to be correct here.

7 I was typing as you were talking. You said it

8 would be in your financial interest to open up

9 the borders and relax the rules. However, you

10 didn't feel that it would be in your clients'

11 best interests for that to happen.

12 MR. TOWNLEY: That's true.

13 MR. RAMIREZ: Is that because of the

14 differences in the "do it" rules?

15 MR. TOWNLEY: More than just the "do it"

16 rules, but the actual knowledge of the law.

17 Again, I have, whether it's justified or

18 unjustified, clients who have a certain

19 expectation when they come to see me that I'm

20 going to have knowledge about the particular

21 areas, because I don't do a whole lot. I do

22 divorce cases. I do criminal cases. I do

23 personal injury cases. I try. That's what I do.

24 When I cross over, it's different. I've

25 gone into Tennessee with other counsel and tried



1 cases up there. And I know that I have stepped

2 places that but for the local counsel, I would

3 have been in trouble. In fact, I purposely now

4 avoid going there unless I just feel that I

5 really have to, because I don't think that I'm

6 providing the best service for my client. I try

7 to get them instead to somebody who I think is a

8 very good lawyer in that jurisdiction.

9 MR. RAMIREZ: Well, my question is -- I have

10 two questions, I guess. What if the "do it"

11 rules were uniform and we didn't have these

12 little nuances in local rules? And, number two,

13 do you need a rule to tell you that you need to

14 associate with local counsel when you don't know

15 the law in South Carolina? I mean is it the rule

16 that made you go and associate with local

17 counsel?

18 MR. TOWNLEY: No, I don't need that rule

19 because I have an expectation that I'm going to

20 provide quality service to my client and I feel

21 that I would need that counsel to do that. But

22 I've got food on my table. I'm going to pay my

23 rent this month.

24 A lot of attorneys, for example, in

25 Chattanooga, are sitting there trying to make it,



1 and their shingle is out or they're working out

2 of their house because they don't have enough

3 money. And if they can get the case, they're

4 coming across the line. And, again, it doesn't

5 take a whole lot to qualify as being competent.

6 That's not the reality of what's in that client's

7 best interest, but that's where it's at.

8 MR. DAVIS: Could I follow up on that for a

9 second, because in our committee meetings we have

10 had some discussion of this. And I was trying to

11 think in my own mind, why do we make this sharp

12 distinction between geography versus transient

13 practice? And is there a valid reason based upon

14 the protection of the public in making that

15 distinction?

16 And I guess in my own mind I rationalize it

17 this way: If you have a permanent address in a

18 location, the public should presume that you do

19 know the law of that jurisdiction. And,

20 therefore, you may be misleading someone who

21 would wander into your shop and hire you,

22 thinking you know the laws of that jurisdiction

23 when, in fact, you don't.

24 On the other hand, if it's transient work,

25 the client would know if they hire me in Georgia



1 to handle a case for them in Tennessee, they are

2 at their own risk. They have made that decision,

3 because they know they went to Georgia to hire me

4 to handle this. And they could check my resume.

5 They could do all the background check they

6 wanted to.

7 So in that regard, that seems to be a good

8 reason to keep what we have as a sharp

9 distinction between being physically located in a

10 geographic location and merely being transient.

11 MR. DIMOND: If I may, to follow up a couple

12 of just technical questions on your use of pro

13 hac and then one on transaction.

14 At what stage in a proceeding does your firm

15 feel it necessary to move for pro hac status?

16 MR. DAVIS: I've looked at that only because

17 of this committee, I'll tell you, Alan. Before

18 the first pleading is filed, is what our rule is.

19 You've got to have that motion for pro hac vice

20 in and ruled on before you would appear in any

21 pleading.

22 MR. DIMOND: Do you feel comfortable in

23 going into the neighboring state, where

24 presumably there's no licensure on the part of

25 your lawyer -- I'm not talking about the one



1 who's licensed in both Georgia and Tennessee.

2 Would you go into Tennessee and begin

3 interviewing witnesses for a case, anticipating

4 that in the future you will move for pro hac

5 status?

6 MR. DAVIS: Let me be very candid with you.

7 Before I got on this committee, I was very

8 comfortable with that. I'm not comfortable with

9 it anymore. Now, it's another thing to wake up

10 in the middle of the night and worry about --

11 By the way, I wanted to make sure. I'm

12 going over my notes here. I meant to also pick

13 on the state of Illinois in having some onerous

14 pro hac vice admission rules. And one thing I'm

15 afraid of will spread is this one judge in the

16 Southern District of Illinois, southern area of

17 Illinois, has concluded that he's not going to

18 grant any pro hac vice motions, plaintiff or

19 defendant. And he says, "We've got great lawyers

20 here in this county, and I'm not going to let

21 another lawyer from anywhere outside of this

22 district into my courthouse."

23 And guess what. His caseload has dropped

24 off appreciably because if his name comes up on

25 the wheel, then they'll dismiss the case and



1 refile it again or try to get it something. And

2 so I think if judges begin to feel that this may

3 be a way to control their docket, it could

4 spread. And so I certainly don't want to

5 encourage that.

6 MR. DIMOND: When you do move for pro hac

7 admission, and let's assume that you -- I'm from

8 a large firm, so I appreciate how you practice.

9 You travel in groups.

10 Do you move for admission of each lawyer

11 who's going to be involved, whether they're going

12 to have a speaking role in court or not?

13 MR. DAVIS: We do. Everybody on --

14 MR. DIMOND: Okay. Then let me ask the flip

15 side. In the transaction arena, where there is

16 no present ability to register or request

17 anyone's permission, and based on your

18 understanding, do the lawyers in Georgia feel

19 comfortable, because you have so many neighboring

20 states, just going to those neighboring states

21 and doing transactions in those states? Or is

22 that something where they just don't cross the

23 line to do?

24 MR. DAVIS: I've got to tell you, you raise

25 this issue with a transactional lawyer, it's like



1 you've suddenly started speaking Greek to them.

2 They have, "What are you talking about? How

3 could this possibly be a problem? We go all the

4 time and do these deals. We go everywhere."

5 And I mean it seems to me that transactional

6 lawyers dealing in real estate always seem to be

7 conscious that they need to get a local lawyer

8 because there's so many nuances in real estate

9 law that you have to do that. Other than that,

10 I'll bet you if you polled a hundred lawyers of

11 the members of the ABA corporate committees or

12 subgroups, 98 of them will say they do this

13 routinely and it never occurred to them that

14 there was a problem.

15 MR. McCALLUM: Let me take you back to your

16 dispute-resolution arena and take it out of a

17 court context and put it into an increasingly

18 active part of lots of dispute-resolution

19 practices, which is a non-court-administered ADR,

20 whether it's arbitration or some sort of mediated

21 process or some mediation on the way to

22 arbitration or something like that, where there

23 is no ability to get admitted pro hac vice

24 because there's no tribunal that does any such

25 admission.



1 On the other hand, not often are there

2 special "do it" rules or secret rules because

3 you're often arbitrating or handling these under

4 rules, something like American Arbitration

5 Association rules or sometimes very complex sets

6 of rules as in construction arbitration and so

7 on.

8 Is that something you find your lawyers in

9 the half of your practice you said was

10 litigation, which I had taken to include this

11 type of practice, are you finding an increasing

12 amount of that and has it ever been much of a

13 concern that they might go to Tennessee to

14 prepare a case that they're eventually going to

15 arbitrate in Birmingham, affecting a client from

16 Mississippi?

17 MR. DAVIS: Until the Birbrower case, I

18 don't think it had ever crossed anyone's mind

19 that that was an issue.

20 One of my partners worked on an arbitration

21 that took place in a conference room at a law

22 firm in Chicago that lasted six weeks. There's

23 an arbitration going on now here in Atlanta where

24 the lawyers representing the Defendant are from

25 Illinois, and it's been going on for nine months.



1 And I asked one of my partners that's

2 representing one of the plaintiff groups in that,

3 "Has anybody ever raised this issue about

4 admission pro hac vice, or what if you had an

5 ethical issue with one of these people? Who

6 would you take it to?" And he said, "I'd take it

7 to the arbitrator." "The arbitrator is not a

8 judge. How is he going to enforce it?" "Well,

9 he would enforce it in his proceeding."

10 And so, again, it was clear, nobody in that

11 proceeding from some very large law firms and

12 very competent lawyers had ever thought of this.

13 MR. McCALLUM: I don't think we have at this

14 point any other scheduled speakers to speak,

15 unless you want to make any kind of statement,

16 Randy.

17 MR. CADENHEAD: I could say a word or two.

18 MR. McCALLUM: Why don't you go ahead. Why

19 don't you introduce yourself to everybody.

20 MR. CADENHEAD: I am Randy Cadenhead. I'm

21 with BellSouth Corporation. I'm associate

22 general counsel with one of the groups of

23 companies that does business in 50 states and a

24 number of countries.

25 The first thing I would say is if we went



1 into Rossville to try a case, we would call

2 Chris. Even if we sent me, especially if we sent

3 me, we would call Chris, and we would have him

4 there with us. And I think Dwight would follow a

5 similar practice, if I can surmise from what he

6 has said.

7 The nature of litigation practice remains

8 today at a trial level in many respects the way

9 it was 150 years ago. And we have to respect

10 that, allow it to change but respect that.

11 I believe, having practiced in Florida and

12 Georgia and being admitted in both those states

13 but dealing with the laws of numerous states in a

14 corporate transactional environment, I believe

15 that there is a very important role for the work

16 of people like Bill Smith and Paula Frederick in

17 each of the states, that states need to be able

18 to regulate not just the lawyers that are

19 licensed to practice in that state but those that

20 may appear as well in a trial setting.

21 I think that's very important. It's

22 important to the profession. It's important to

23 protecting the public as well.

24 I think that you've had a number of models

25 and suggestions given to you here and elsewhere



1 on ways that we could improve the

2 multijurisdictional practice. I know the

3 American Corporate Counsel Association has given

4 you some, and I won't repeat any of that to you,

5 although I think there's some merit to a lot that

6 they have to say.

7 I would remind you of the needs that may be

8 somewhat unique to in-house counsel. We travel

9 from state to state, largely in a transactional

10 practice, and there needs to be freedom

11 associated with that to benefit the interests of

12 the client that does business in that sense. We

13 also transfer lawyers around on a temporary or a

14 permanent basis, and there needs to be a method

15 of dealing with that.

16 We in BellSouth have 150 lawyers. They are

17 not necessarily licensed to practice in the state

18 where they are. If they perform a litigation

19 practice, they would, in fact, be licensed in the

20 state where they're located.

21 But it seems to me that lawyers that might

22 be based here in Atlanta but are not licensed in

23 the state of Georgia lose the benefit of

24 participating in the Georgia bar. And I think

25 the bar loses the benefit of their presence. And



1 I think that there's some opportunity for us to

2 improve the profession if we take steps along

3 those lines. Thank you.

4 MR. McCALLUM: Steps meaning to make it

5 easier for them to participate in the bar?


7 MR. McCALLUM: But not necessarily with a

8 full round of admission as if they were setting

9 up shop here.

10 MR. CADENHEAD: Yes, and then to be

11 regulated by the bar.

12 MR. DIMOND: I know you have a regional

13 practice.

14 MR. CADENHEAD: Correct.

15 MR. DIMOND: Do your lawyers practice in

16 particular states, or do they all practice in

17 Atlanta and then go to wherever you have regional

18 problems?

19 MR. CADENHEAD: Both. We have lawyers based

20 in a dozen states. We have about half the

21 lawyers here in Atlanta. The nature of their

22 work varies.

23 MR. DIMOND: If they're short term -- in

24 Florida the rule is two years that you can come

25 in and work for a single employer and then either



1 leave or take the bar if you're going to stay

2 longer.

3 Do you find different rules all over your

4 region, which I assume is the South?

5 MR. CADENHEAD: Largely the South, but not

6 entirely. The rules do vary. I believe you

7 probably have a list of those. They're in some

8 cases arcane.

9 MR. DIMOND: I think one of the functions of

10 this Commission is to try to bring the rules at

11 least up to the level of reality. And I think

12 we're working on figuring out how to do that,

13 notwithstanding some of the complexities of all

14 this.

15 But when you have transactions, do your

16 lawyers routinely travel across state borders to

17 do those transactions with third parties, that

18 is, people who are not also in-house?

19 MR. CADENHEAD: Yes, indeed. If we had a

20 real estate transaction, which was mentioned, we

21 would be sure to bring in local counsel because

22 there are local peculiarities to the law. If we

23 had a trial situation, we would certainly bring

24 in local counsel because you don't want to be in

25 a situation where you're hometowned, if for no



1 other reason.

2 MR. DIMOND: But how about a commercial

3 transaction which is not real estate related? Do

4 you feel that you can simply send a lawyer from

5 Atlanta to another state and that lawyer can

6 handle that transaction for you with third

7 parties?

8 MR. CADENHEAD: Yes, we do.

9 MR. DIMOND: Without necessarily even having

10 local counsel.


12 MR. DIMOND: You don't make any attempt even

13 to affiliate your own local counsel, who is

14 admitted? In other words, you just do the

15 transaction.

16 MR. CADENHEAD: Not in most transactional

17 situations, no. In fact, in many transactions

18 you sit at the table and decide what

19 jurisdiction's law applies.

20 MR. DIMOND: Without reference to where the

21 table is.

22 MR. CADENHEAD: Right.

23 MR. McCALLUM: Lest we think we've defined a

24 real estate exception to the other rules, there

25 are contexts maybe lying outside of what the



1 British call "conveyancing," as such, where I

2 think it would also be common for a large

3 corporation to either have the matter handled

4 in-house by somebody without much local

5 participation or perhaps might rely on a simple

6 outside firm.

7 For example, a large corporation might lease

8 commercial real estate, might enter commercial

9 real estate leases on a 50-state basis. It would

10 be more common than not, I think, that they might

11 try to handle that entire process with an

12 in-house property manager, some in-house legal

13 division generally knowledgeable and probably a

14 single outside counsel, occasionally consulting

15 local counsel when a knotty issue arises but

16 often concluding the leases without anybody from

17 the state where the property is located.

18 So there are some aspects of the real estate

19 practice that are handled quite without regard to

20 the state. I'm sure that may be true in your

21 case too, the commercial real estate area.

22 MR. CADENHEAD: I think there is some

23 measure of the truth to that, yes.

24 MR. DIMOND: May I ask another question?

25 MR. McCALLUM: Sure. Please do. Let's open



1 it up at this point. I don't know if anybody

2 else wants to make more set-piece remarks. But

3 otherwise, let's just have open round-table

4 discussion. I know at least one of you, Dwight,

5 you have a timetable. While you're here and we

6 can talk, let's just kind of open up and anybody

7 can raise questions of anybody.

8 MR. DIMOND: Chris, we run into a lot of

9 cross-border situations. We spent a lot of time

10 in the last hearing, and I forgot which city it

11 was, but it was dealing with St. Louis, Missouri,

12 and the lawyers there on the opposite side of the

13 state border, it seems, just cross back and

14 forth.

15 You are a suburb or a bedroom community of a

16 Tennessee city?

17 MR. TOWNLEY: That's a good description.

18 MR. DIMOND: I assume there's a downtown

19 where there's a concentration of lawyers in

20 Chattanooga.

21 MR. TOWNLEY: Correct.

22 MR. DIMOND: Do those lawyers routinely

23 practice in your community?

24 MR. TOWNLEY: There would be a group that

25 would, yes.



1 MR. DIMOND: And do your lawyers routinely

2 practice in Chattanooga? Or I mean you were

3 talking about your own particular practice, which

4 is in three focused areas.

5 MR. TOWNLEY: No. No. There would be very,

6 very few from Georgia who would be crossing into

7 Tennessee to practice on a regular basis.

8 MR. DIMOND: Is that because of the nature

9 of the firms, that basically the larger firms are

10 in downtown Chattanooga and the smaller firms are

11 in the suburbs?

12 MR. TOWNLEY: Whom they represent. Yeah, it

13 goes back to most of the clients that I'm going

14 to be representing are individuals. I'm not

15 going to be representing large corporations. I'm

16 not going to be representing Coca-Cola. They're

17 going to be having someone from Chattanooga. And

18 if it's a problem in Georgia, that corporation is

19 going to have their regular Chattanooga associate

20 coming into Georgia, if he's licensed in Georgia,

21 to practice.

22 MR. DIMOND: You made a comment to me which

23 I thought was very interesting, a comment to the

24 group; that is, you were talking about the fact

25 that you wouldn't object to an open-border



1 situation as long as there was, in effect, total

2 reciprocity, that is, there were no limitations.

3 But in your circumstance, wouldn't that as a

4 practical matter mean there could be a lot of

5 lawyers whose licensure was in Tennessee that

6 would then be coming into your community?

7 MR. TOWNLEY: Yeah. But, again, I think

8 we're talking about two separate issues. If

9 you're talking about protectionalism, that's just

10 straight business competition. Competition is

11 supposed to be good. If they can come in and

12 take my clients and they're better lawyers, so be

13 it. My job is to be a better lawyer than they

14 are and keep my clients.

15 MR. DIMOND: Well, I was really getting to:

16 In my view, this protection idea is not a valid

17 basis for any regulatory structure or whatever.

18 And I don't think that it has any legal

19 justification whatever. And I know it has no

20 popular appeal in the community at large.

21 But I'm more concerned about the actual

22 difference in the practices between Georgia and

23 Tennessee and whether a Tennessee lawyer,

24 assuming you open the borders, would be competent

25 to come into Georgia without the specialized



1 training that Georgia lawyers presumably receive

2 until they are licensed and vice versa. That is,

3 are the lawyers in your community competent to go

4 into Tennessee and practice under the current

5 state of training for lawyers?

6 MR. TOWNLEY: Would they meet the basic

7 Constitutional test? Yes. But as far as --

8 MR. DIMOND: Not for competent criminal

9 defense. I'm talking about: Are they really

10 competent to give first-rate service to the

11 clients they serve, or would they be really not

12 fully competent?

13 MR. TOWNLEY: Other than a couple, they

14 would not be fully competent mostly.

15 MR. GREEN: I knew of a judge who said the

16 test for competence of counsel was even lower

17 than the one you described: if you stick a

18 mirror under the lawyer's nose and it fogs up.

19 MR. TOWNLEY: No. There are attorneys who

20 are able to keep up in both states and work very

21 hard to do that and do a substantial amount of

22 work within very limited practices. All I do is

23 insurance defense, personal injury work and go

24 back and forth and do them in both states, and

25 that's my whole focus. And they're able to keep



1 up with those areas. So yes, there are people

2 who can do it. But for the vast majority

3 representing the average person on the street,

4 no.

5 MR. HOLTAWAY: Dwight, do you have

6 litigators in your firm who go to Louisiana and

7 try cases in the state courts?

8 MR. DAVIS: Yeah. I've been in state courts

9 in Louisiana. And, again, we always get local

10 counsel. But, again, think of the kind of cases

11 we would have. It would be product liability

12 cases, or I've got some commercial class actions

13 that are filed down there now.

14 MR. HOLTAWAY: We had a representative from

15 the Louisiana State Bar out in San Diego. And

16 they weren't real opposed to maybe this

17 green-card concept where lawyers could come in.

18 They use Texas, apparently, as their big nemesis

19 and come back and forth. But they're very

20 concerned that they have a different civil code

21 than everybody else does. And so they had a

22 suggestion that you have to go through a little

23 continuing legal education in their civil code

24 before you can come in and do this.

25 MR. DAVIS: I would think that there's



1 something to that. That is, as I said, I believe

2 I always would get local counsel almost anywhere

3 I go in appearance and also, in response to your

4 question, in the state of Georgia. If I'm going

5 to go to Savannah, I try to get local counsel.

6 But in Louisiana it is probably malpractice if

7 you go in there and don't do it.

8 Just yesterday I was reminded. I was on the

9 phone with somebody from New Orleans. And

10 they've got a special name for product liability,

11 according to the law down there. They've just

12 got a completely different name for it. It's got

13 a different foundation in how it's developed over

14 time. And you would have no idea if you went in

15 down there.

16 MR. McCALLUM: Let me tee off what John just

17 said here because I'm going to tie back to a

18 point you made that I think is useful, Dwight,

19 that we sometimes lose sight of as we get sort of

20 rambling off in the discussion. It's this matrix

21 analysis, this notion that there are different

22 ways to cut this discussion. And it's easy to

23 drift from one into another and not realize

24 you've shifted your ground.

25 A lot of the discussion we've had today has



1 been in the litigation context, in perhaps what

2 might well be one row or column of that matrix

3 about the rules applicable when you're in a court

4 subject to the authority of a judge. It might be

5 across all of the other cuts, might be handled

6 differently, might be handled appropriately

7 differently when you have something handled in a

8 judicial forum.

9 When we were talking along, I thought about

10 what ought to apply to the lawyer who is like

11 your transactional lawyers, who are sort of

12 intermittently, transiently in another state, not

13 with any regularity. And then we got off into

14 the green card notion.

15 Well, you're not going to really be very

16 excited, I would think, about saying that all

17 your transactional lawyers, to keep them, what

18 they've got to do is they've got to get green

19 cards from 49 other states, because that's going

20 to be too huge a burden. And most of them are

21 only in Montana maybe once or twice, if that, in

22 their practice career. On the other hand, they

23 might have to go on 30 minutes' notice because

24 the client needs them there.

25 But the green card is really designed for



1 something slightly different. It's designed for

2 the person who's maybe the cross-border person,

3 who is on a more regular basis back and forth

4 between Tennessee and Georgia, but not the person

5 like your transactional lawyer, who once in a

6 while goes to New York to do a closing.

7 So this is why this is so confusing. I like

8 that concept. I made some notes on it. I hope

9 we can think about it as we go into our analysis,

10 trying to get this better organized and keep

11 track of some of these differences.

12 MR. WILSON: I really was going to try not

13 to say anything.

14 MR. McCALLUM: We're glad to have you talk.

15 Please do.

16 MR. WILSON: Respectfully, first of all, let

17 me say this: I'm delighted with the effort to

18 assure enhancement of professionalism in the

19 profession. I think that's what this is all

20 about at the end of the day. So I applaud that.

21 I've had a week that was a classic example

22 of the transactional lawyer. It's almost as if I

23 scripted it to come to this meeting today. I

24 want to tell you what I did.

25 Monday morning I flew to Westchester County,



1 New York, and went to a meeting of the town

2 council in Orange County that evening, where I

3 appeared before the council to plead my client's

4 case, who is from Alabama, and convinced the

5 council to enter into a contract with my client.

6 I was leaving that meeting to come back to

7 Birmingham. I checked in with my office, and one

8 of my partners advised me I should not leave but

9 rather should go to our New York office -- we are

10 a small firm in Alabama, but we, perhaps crazily,

11 have a New York office; we have two lawyers of

12 the four of us licensed in New York as well as

13 Alabama -- to meet with a foreign client who

14 found us in the international Martindale-Hubbell

15 because they were looking for somebody who had

16 both a New York and an Alabama connection.

17 MR. DIMOND: And you were it.

18 MR. WILSON: Not many have that luxury, if

19 that's what it is.

20 In any event, so I go to New York and spend

21 until yesterday afternoon meeting with this

22 foreign client in our New York office to talk

23 about Alabama matters.

24 I too never considered the issue until I

25 became aware of the concerns arising out of these



1 deliberations. But I have done that for my

2 career and really never concerned myself with it.

3 And I would have to say to you, nobody on the

4 other side of the table ever concerned themselves

5 with it.

6 MR. DIMOND: Did your client, by any chance,

7 bring with them a lawyer from his --

8 MR. WILSON: Yes, from his country. He did.

9 MR. DIMOND: Did you have any conceptual

10 problem with the fact that there was a lawyer,

11 presumably from another country, who doesn't have

12 a New York license or an Alabama license?

13 MR. WILSON: No, sir, I did not. I did not

14 sleep poorly that night.

15 MR. DIMOND: It sounds like you slept

16 wealthier.

17 MR. WILSON: If it goes, perhaps. But more

18 importantly, to get back to the example, Charles,

19 that you mentioned, in the transactional work.

20 Take an example with respect to this issue of me

21 appearing before the Orange County public body.

22 I have been working on behalf of this Alabama

23 client for in excess of two years in Orange

24 County, New York. I'm as well known among some

25 of the councils in that county as their own local



1 lawyers.

2 Now, at what point have I crossed the line?

3 I'm still negotiating for an Alabama client,

4 trying to build a project in Orange County. The

5 contract is governed by New York law.

6 MR. DIMOND: And Orange County is going to

7 purchase goods or services from your client?

8 MR. WILSON: We're going to build a huge

9 facility in Orange County and operate it. And,

10 hopefully, it will be beneficial to all

11 concerned. So the negotiation has been long and

12 arduous, to say the least. But, again, I'm

13 concerned about if there's a perception that

14 there's a time frame in which you cross the line

15 perhaps.

16 MR. McCALLUM: Well, if I gave that

17 impression, let me correct it. There's been a

18 proposition put forward by, among others, the

19 Association of Professional Responsibility

20 Lawyers in favor of sort of a limited

21 registration or other process for the person who

22 meets some threshold level of being in another

23 jurisdiction and rendering legal services. That

24 is just a proposal.

25 And, obviously, one of the hard problems



1 that we're going to have to come to grips with

2 when we finally get into our hard business

3 meetings is: Where and how do you draw the

4 lines? You've just given an example of --

5 I think someone earlier mentioned the

6 arbitration matter that's been going on for nine

7 months. I thought that was the whole point of

8 ADR, it wasn't supposed to go on for nine months.

9 But, anyway, I suppose that they must. And

10 certainly a big construction matter might go even

11 a lot longer than that.

12 You might have somebody camped out in

13 discovery in a case for the best part of two

14 years if you get a big antitrust case, I suppose.

15 And you might be camped out in a place that you

16 can't get admitted pro hac because it isn't the

17 place the case is going to get filed. Everybody

18 knows that a case may get filed. It hasn't been

19 filed yet. But if it is filed, it isn't going to

20 be filed there. It will be filed some other

21 place. But that's where the records are, and

22 that's where you're doing your legal work,

23 interviewing witnesses, looking at documents.

24 How do you draw those lines? You've given a

25 very good fact pattern of a client.



1 Let me ask you this question: Would you

2 feel any differently about what you're doing in

3 Orange County, you personally, what you've been

4 doing, if that client had not been an Alabama

5 client but had been, let us say, a Tennessee

6 client who heard about you and hired you because

7 they thought you knew a lot about what was going

8 on in Orange County to help them win a contract?

9 MR. WILSON: Maybe I'll claim the Fifth.

10 MR. SMITH: We won't tell Tony. Go ahead.

11 MR. McCALLUM: Everything here is deemed to

12 be hypothetical.

13 MR. WILSON: In the Birmingham bar we have a

14 special committee. I know Bob is working with

15 the state committee that's doing a consideration

16 of this subject. And I feel like part of the

17 answer is driven by the economics. And that is,

18 what you're alluding to is the possibility that

19 I, Jim Wilson, might have the stamina to say to a

20 potential client, "I really don't want your

21 business." I'm about to be honest with you. I'm

22 just not there yet. So I would probably be

23 inclined to want to work for that client.

24 MR. McCALLUM: In fact, you'd feel awful

25 good that they had heard about you, and your



1 reputation was so good that they came to you.

2 For many people it's one of the real pleasures of

3 the practice of law that clients seek you out and

4 want to hire you.

5 MR. WILSON: Absolutely.

6 MR. DIMOND: Well, in this situation, you're

7 describing a circumstance where you may very well

8 be in that exact position because if your first

9 project is successful and you become known as a

10 guy who knows how to get it done in that

11 community and you know the commissioners, why

12 wouldn't a Tennessee firm be interested in hiring

13 you?

14 MR. WILSON: Well, but the more likely

15 example to follow from this work is that I will

16 appear in a county in another state on behalf of

17 this client, who's trying to build projects

18 replicated in that other place. So it can go

19 both ways.

20 MR. DIMOND: Sure. And that's the flip side

21 of the coin. Let me ask you: In this particular

22 one, is there an adversary or a competitor who is

23 also trying to win the hearts and minds of that

24 particular group?

25 MR. WILSON: The client has been awarded the



1 right to build a facility, and now he's trying go

2 around and contract with municipalities to

3 support it.

4 MR. DIMOND: Would you have felt any

5 differently if there was a competitive

6 environment where another firm was attempting to

7 win that same contract simultaneously and they

8 had lawyers from that community representing

9 them?

10 MR. WILSON: No. No. Because the truth of

11 the matter is -- and I say this with all due

12 respect -- southerners in Orange County, New

13 York, are sort of enjoyable people. They like to

14 hear the drawl, and they like to hear the

15 courtesies, and it's gotten my client some

16 favorable treatment. I'm not saying I played on

17 that, but it just worked out. I think the client

18 now understands it, so they are willing to pay

19 the expense for me to go to New York and meet

20 with these people.

21 MR. DAVIS: Mr. Chairman.

22 MR. McCALLUM: You've got to run. I know

23 that.

24 MR. DAVIS: Thanks so much.

25 MR. DIMOND: Well, thank you very much. We



1 appreciate your taking the time.

2 MR. DAVIS: I'm looking forward to it.

3 Again, we have no strict timetable on our

4 project. But I suspect that at some time in the

5 not-too-distant future, we'll try to get together

6 our report of some type and present you some

7 additional material.

8 MR. McCALLUM: Well, we look forward to it,

9 and we certainly hope you follow the work of the

10 Commission.

11 MR. MEADOWS: Before Dwight leaves, could I

12 make a couple of comments here that I'd like for

13 him to hear and see what his thoughts are, very

14 quickly?

15 MR. McCALLUM: Sure.

16 MR. MEADOWS: I'm Bob Meadows. I'm from a

17 small town, Opelika, Alabama. It's not very big

18 at all, unless you count the cattle.

19 We have the largest law firm in the county.

20 We have nine lawyers, two of whom are

21 semi-retired. So effectively, we have seven

22 lawyers.

23 I hear this talk about the King & Spalding

24 situation and Jim Wilson's situation. And from

25 my perspective, I don't believe those types of



1 clients are the individuals that this

2 multijurisdictional practice issue really is

3 going to protect. These are sophisticated

4 companies. They're sophisticated individuals.

5 They know good and well what Dwight Davis can do

6 and what Jim Wilson can do, and they're willing

7 to take that chance.

8 I think where we have the problems and where

9 we do have to, in my judgment, protect the public

10 is Sally down on the corner that lives in

11 Opelika, Alabama, and who doesn't have the

12 sophistication that these folks have. And she

13 invests her life savings in a lawyer to help her,

14 and that lawyer is incompetent but, as Chris

15 says, is out there trying to make ends meet. And

16 he's willing to take a case across the state

17 lines where he doesn't know the law.

18 And I'd be interested to hear Dwight's and

19 Jim's comments on that. But I really think

20 that's where the rubber meets the road, I think.

21 And my practice is the small claims court of

22 life. And that's really what you're looking at.

23 If you're going to protect the public, you've got

24 to look to those folks rather than Fortune 500

25 companies and Westchester County or wherever it



1 is. Okay? And so I'm really concerned about

2 that from my perspective, and I'd like to hear

3 Dwight's and Jim's comments on that.

4 MR. DAVIS: I agree with those comments

5 exactly. And I meant to, if I didn't, I meant to

6 highlight that as a distinction.

7 Chris raises a very good point, that same

8 one that you're making now. Those people need to

9 be protected, whereas clients that are hiring me

10 are at their own risk. That's going to be the

11 difference.

12 I do think, though, that the problem is:

13 What we're really talking about is presumptions

14 of competency or whatever. And you're assuming

15 that there's a presumption that if somebody's on

16 that side of the Chattahoochee, they're competent

17 to handle those matters. And if they're on the

18 other side of the Chattahoochee, they're not.

19 And what I propose, what Bill and I were

20 talking about at some length the other day, was

21 if a lawyer that crossed over from Columbus and

22 went down to Opelika and had the poor judgment to

23 try to go into court against you in that forum,

24 and he adversely affected the interests of an

25 Alabama citizen, then that lawyer ought to be



1 subject to the disciplinary proceedings and the

2 malpractice laws and the other protection that is

3 afforded the citizens of Alabama.

4 And then the State of Georgia should enforce

5 those findings, whatever they would do. Or the

6 Georgia courts -- I'm sorry -- the Georgia bar.

7 If the Georgia lawyer did something in Opelika

8 that would get him impeached or disbarred in

9 Alabama and then that proceeding goes forward and

10 he has his due process rights and he's disbarred,

11 then that proceeding should be domesticated over

12 here in Georgia, and he should be disbarred in

13 Georgia.

14 MR. MEADOWS: From a state bar perspective,

15 can you do that?

16 MR. DIMOND: We're talking about that

17 possibility. It's not impossible a state --

18 well, in Florida, for example, the state Supreme

19 Court would have to sign off on that. It would

20 probably be comfortable with our sister state,

21 Georgia. It might have a question about another

22 state, for example, California, where the lawyers

23 don't necessarily have to graduate from

24 accredited law schools. And then you get into

25 all these questions of: Are they competent?



1 They think they're more competent. You know,

2 there's all those kinds of issues.

3 But the Commission is going to be very

4 interested in hearing the recommendations coming

5 from Georgia and from the other states, Alabama.

6 We'd like to hear what you really think we ought

7 to be doing. Should we be changing the existing

8 rules? And if so, to what extent? Are we really

9 comfortable with the idea that we're going to

10 open up the borders between and among all the

11 states in the region? Maybe. But you may find

12 an awful lot of Florida lawyers coming up here

13 who don't know how you do it.

14 MR. McCALLUM: Yeah. And it's tempting to

15 draw the line on consumer, which is where I think

16 you're sort of getting at. But even that gets to

17 be difficult because that would lead you perhaps

18 to the conclusion that Ted Turner can't hire an

19 Alabama lawyer to help him in his divorce matter

20 if he wants to because he's a consumer and he

21 requires this protection. But he's about like a

22 big corporation in a way.

23 So this is the line drawing that it gets so

24 awfully, awfully difficult that you just don't

25 know how to do it. But you raise a very valid



1 point and a good point.

2 MR. RAMIREZ: Dwight, before you leave, one

3 of the things you may want to look at is proposed

4 Rule 8.5 from Ethics 2000, which is the rule on

5 jurisdiction, which would in essence permit the

6 state where the disciplinary violation occurred

7 to enforce their disciplinary rules. And if you

8 guys get a chance to look at that, we would

9 certainly appreciate any comment you would have

10 on that issue as well.

11 MR. DAVIS: In reviewing my notes for this

12 get-together today, I noticed Mr. Smith had

13 referred me to that same Code section. So now

14 it's been doubly referred. I'll look at it.

15 MR. McCALLUM: And, Dwight, you're not

16 heading out of town to do any multijurisdictional

17 practice, are you?

18 MR. DAVIS: I'm not going to answer that.

19 I'm on my way to New York. Professor Green,

20 would you like a ride?

21 MR. GREEN: I'll wait until the end of the

22 hearing. Thanks.

23 MR. SMITH: That provision in 8.5, which

24 would give jurisdiction to the state where the

25 violation occurs, comes out of the ABA model



1 rules for disciplinary enforcements, so that's

2 already ABA policy. Unfortunately, the model

3 rules for disciplinary enforcement have not met

4 with the same acceptance that the model rules

5 have. So I think it's an attempt to put that in

6 the document that's receiving the most attention.

7 So that's not a new concept.

8 MR. RAMIREZ: The other thing is, you know,

9 Mr. Wilson, you're kind of in a situation that

10 I'm trying to get people to understand. In a

11 former life I was chair of the general practice

12 small firm section of the ABA. A lot of

13 practitioners don't believe that this is an issue

14 that affects small firms.

15 Obviously, you've got four lawyers in your

16 firm. And you're a firm that's engaged in a

17 multijurisdictional practice of sorts. So I

18 think that's very interesting, and I appreciate

19 your insight.

20 One of the questions I wanted to ask you,

21 though, is that you mentioned something, well,

22 nobody seems to care, and when do you cross the

23 line.

24 When do you think that the lawyers in Orange

25 County, New York, might have an objection to you



1 representing your client in Orange County?

2 MR. WILSON: I suppose if I thought about it

3 longer, I might have a different reaction. But

4 my initial reaction is at the point in time that

5 the facility is constructed and there are

6 employees on site, I think at that point I sort

7 of have to step away and probably would be

8 expected to. In other words, I'm not going to

9 continue to provide ongoing day-in, day-out

10 advice to that company as it operates in Orange

11 County. That would require local relationships.

12 MR. RAMIREZ: So you think that if you

13 decided that your client's setting up this plant

14 in Orange County and they've got 400 employees

15 and your firm decides you're going to start doing

16 wills and divorces for those clients, you think

17 that that's when the lawyers in Orange County,

18 New York, might have an objection to you

19 practicing law?

20 MR. WILSON: I think that's when my partners

21 would have an objection. Yes. I think that's a

22 serious -- that's a slam dunk, in my judgment.

23 MR. RAMIREZ: Well, what if you were

24 competent to do that under New York law?

25 MR. WILSON: Well, I didn't mean to imply



1 that I wasn't.

2 MR. RAMIREZ: Right. Is that the issue?

3 It's not the fact that you're an Alabama lawyer,

4 but the issue is that you may or may not be

5 competent to practice in New York?

6 MR. WILSON: I think I would be guilty of

7 some significant breach of professionalism if I

8 were to try to practice those sorts of law, if

9 you will, in New York. Now, if it came to

10 negotiating, writing and negotiating an

11 acquisition transaction, I feel competent doing

12 that wherever. And I've done it in lots of

13 places. I've never really lost any sleep about

14 it until recently.

15 But, you know, it seems to me there's

16 another issue that comes into play, and it's my

17 malpractice carrier. Because I think what the

18 ABA may conclude will influence my malpractice

19 carrier's willingness to continue to insure Jim

20 Wilson as he goes and does whatever he does.

21 MR. DIMOND: You believe you're insured when

22 you're in New York.

23 MR. WILSON: Right.

24 MR. DIMOND: Doing what you're doing.

25 MR. WILSON: Correct.



1 MR. DIMOND: But you've never discussed that

2 with the carrier to see whether they think --

3 MR. WILSON: I know ALAS, and I used to be

4 covered by ALAS because all of my partners have

5 big-firm experience and all come from that

6 background. And ALAS has been vocal. But I'm

7 not sure they've really said, "No, you can't do

8 that."

9 Then you begin to get into economics, which

10 has ramifications for them in terms of insurance

11 and who they underwrite and that sort of stuff.

12 But it does have a rippling effect. I said to

13 Bill earlier on, I would certainly consider

14 myself and be willing to consider myself subject

15 to the rules of the state in which I am

16 negotiating.

17 MR. RAMIREZ: But what if the State of New

18 York gave you a certificate that said, "James

19 Wilson is minimally competent to practice in the

20 state of New York"? Then your malpractice

21 carrier would likely say that's fine; right?

22 MR. WILSON: Probably. Probably.

23 MR. RAMIREZ: Same thing with Chris Townley.

24 If Chris Townley decides to go to Tennessee to

25 try a criminal case, and the State of Tennessee



1 has said, "Chris Townley is minimally competent

2 to practice criminal law in the state of

3 Tennessee," then his malpractice carrier would be

4 all right and your concerns about protecting the

5 clients would be satisfied as well.

6 MR. TOWNLEY: Why would my concerns about

7 protecting the client be satisfied?

8 MR. RAMIREZ: Well, because you've gone

9 through and gotten your certificate in the state

10 of Tennessee that says you're competent to

11 practice criminal law in the state of Tennessee.

12 MR. McCALLUM: This is a super interesting

13 topic. I think we're going to now take about a

14 five-minute break to let people use the rest room

15 and relax just a second. We'll get back into

16 this.

17 But I just would conclude by noting that I

18 have for the last 37 years been and still am

19 admitted to practice in Tennessee. And I can

20 assure you, I don't feel competent to practice

21 that Tennessee law.

22 We'll just take a break.

23 (Brief pause in the proceedings.)

24 MR. McCALLUM: We'll resume the hearing.

25 And as we broke, Ray said he had a few comments



1 he'd like to make.

2 MR. CHADWICK: Just a couple, Charlie.

3 Thank you.

4 One of the things, by way of background,

5 maybe it will help the perspective of a couple of

6 the comments I make. I come from a large firm

7 but with a small office in Augusta, Georgia,

8 which is right on the South Carolina border, with

9 only about 11 upstairs. So I get to experience

10 both the practice of -- well, principally

11 experience the practice in a smaller community

12 but also see what happens in a firm that has its

13 main office here in Atlanta.

14 Some of my partners asked me to just make a

15 couple of points when they heard about this

16 hearing. One of them particularly related to ADR

17 or public dispute resolution. And you may have

18 heard this before, but I don't know. Obviously,

19 it's becoming bigger and more important in all

20 kinds of ways. In any case of significance

21 anymore, it is unusual, in my experience, not to

22 do it. And I think that's becoming true for most

23 of my partners. And.

24 One of the concerns I was asked to express

25 was if a proceeding by agreement is chosen to



1 occur in a jurisdiction where the lawyer happens

2 not to be licensed but would like to make sure

3 that they won't have some problem with

4 unauthorized practice of law simply by

5 participating in the ADR in multijurisdiction.

6 Similarly, some of my partners also act as

7 neutrals in ADR proceedings. And it occurs to

8 them, what if they are asked to serve as a

9 neutral in Missouri because of their reputation

10 in a particular law, but they're not licensed

11 there? And that's stirred some concern.

12 Secondly, I was asked to --

13 MR. McCALLUM: Ray, on that point, we had

14 this discussion, I think, at an earlier meeting.

15 And I suppose if you got any four ethics

16 professors together, you'd get five and a half

17 different opinions on that topic. But I think it

18 was generally thought that at least as the

19 neutral was concerned, they're probably not

20 practicing law.

21 MR. CHADWICK: I think they assumed that,

22 but they wanted --

23 MR. McCALLUM: I think you can, for such

24 authority as the casual discussion around the

25 table among a group of people who ought to know



1 something about the topic would go, I think there

2 was a general feeling that the person being the

3 neutral is probably all right.

4 MR. DIMOND: Bill, do you agree?

5 MR. SMITH: I agree.

6 MR. McCALLUM: Now, the participants, the

7 persons taking an advocacy role, that obviously

8 slides right under the Birbrower case, sort of.

9 So, in essence, your partners are saying,

10 "Whatever you do, reverse Birbrower."

11 MR. CHADWICK: Yeah. Another area and one

12 of the main areas, I don't need to repeat it

13 because everybody's familiar with it from a

14 transactional setting, mediums, e-mails, these

15 kinds of things, so I don't think I need to say

16 anything more about that.

17 One of the lawyers did comment on something

18 that occurs. Again, it's in the litigation

19 context where we may need to enlist the aid of a

20 local court for a subpoena or something for a

21 deposition or to get documents or whatever. And

22 they would like, with simply doing that as a

23 formality, to make sure that we'll not have any

24 trouble by getting local counsel to do that and

25 getting the local court system's help in just



1 doing those kinds of administrative things.

2 Lastly, some of my partners do healthcare

3 law. One of them commented that in the

4 healthcare law practice, broad geographic

5 coverage is important. And the bulk of it is

6 federal law also. And so how do we deal with the

7 situation where you're really dealing with

8 managed federal law but across different state

9 lines? And how do we get protection to make sure

10 we're not accused of practicing where we

11 shouldn't when we're really dealing with federal

12 law?

13 MR. DIMOND: Now, would you believe that if

14 the practice was in federal law that you ought to

15 be able to practice that federal law anywhere in

16 the country?

17 MR. CHADWICK: To me that seems logical.

18 And I hadn't thought about it, honestly, until my

19 partner told me this last night when he knew I

20 was coming. But that does seem to be -- if the

21 interest is protection of the public, yes, and

22 particularly of a civil transaction type nature.

23 I've got a comment I wanted to make, again,

24 relative to litigation where I might have some

25 different concerns for practical reasons as



1 opposed to truly legal-analysis reasons. But

2 were you really involved in just understanding

3 the counseling of federal law, that seems to me

4 to make sense.

5 MR. GREEN: We've heard from a number of

6 people who counsel in specific areas that seemed

7 to be predominantly federal law. We've heard

8 from media lawyers. We've heard from labor

9 lawyers. At least we have a labor lawyer on the

10 commission. But my impression, at least in those

11 two areas, was that while it's largely federal

12 law, it's not exclusively federal law and that

13 there are state law issues as well.

14 Do you know whether that's true in the

15 health law areas --

16 MR. CHADWICK: Not being an expert there or

17 doing much of that, I don't really know. But I

18 would be surprised if there weren't at least

19 normal state issues.

20 MR. McCALLUM: It really depends on what

21 you're doing. There are lawyers, I think, who do

22 Medicare or Medicaid compliance matters, which

23 are typically almost 100 percent undoubtedly

24 federal-regulation-based practice. But for a

25 general health lawyer, it's obviously a



1 mixed-practice bag of state law issues and

2 federal law issues.

3 MR. GREEN: So if one were to say that you

4 should be able to practice federal law anywhere

5 might not fully address the issue. You might

6 have to really be honest about the fact that

7 while it's predominantly federal law, there may

8 be state law concerns as well.

9 MR. CHADWICK: Sure. The last observation I

10 want to make -- I know some people are trying to

11 get out of here before the traffic jams,

12 including me.

13 In the discussion about litigation

14 matters -- and this is my perspective in coming

15 from Augusta, which is a small-tier city,

16 second-tier city -- I think perhaps in the big

17 urban environment, the judges -- and this is a

18 practical matter, not a legal matter, which is

19 really the best interest of the client. The

20 judges in Atlanta, I think, are used to dealing

21 with a lot of lawyers they don't know, and

22 there's no way they can know everybody, and

23 perhaps clients are not disadvantaged by that.

24 But in Augusta and comparable cities that

25 are even smaller, one of the concerns I would



1 have kind of dovetails to what Chris was talking

2 about, and that's the protection of the public.

3 And I really worry about clients who are

4 represented by lawyers who don't know the local

5 judge and his idiosyncrasies or if we're going to

6 go to trial, don't know the character or nature

7 of who the potential jurors are.

8 Because I have seen in my own personal

9 experience in cases that are tried in Augusta

10 out-of-town lawyers come in in which I was a

11 codefendant, talking about a hundred-thousand-

12 dollar case, because they were from out of town a

13 half a million dollar case, which, unfortunately,

14 my client had to share half the burden because

15 they did things that irritated the judge, which

16 irritated the jury.

17 So these are not matters of legal analysis

18 but just, unfortunately, human frailties that

19 might enter into the system when you're dealing

20 with members of the judiciary.

21 Those are the comments I had.

22 MR. McCALLUM: Thank you. I'm not going to

23 delay those who are eager to hit the road before

24 the Friday afternoon Atlanta commuters, but I do

25 recall when I started practicing law 37 years



1 ago, I got involved in a case in a town called

2 Battle Creek, Michigan, which is smaller than

3 Grand Rapids and had one judge -- no, I guess

4 there were two judges but only one very active.

5 And we got involved in a piece of shareholders

6 derivative litigation, in which there were a

7 number of parties and all represented by local

8 counsel as well some counsel out of Detroit and

9 Grand Rapids.

10 And after a day's proceedings on motions or

11 whatever, we gathered in the judge's chambers.

12 Afterwards he would hang his robe up and light up

13 a cigarette, and we'd sit around and he'd kind of

14 talk with the boys -- it was all boys, of course,

15 most of us -- and let them share in his wisdom.

16 And it always has stuck with me. I recall

17 one comment he made as we were talking about the

18 fact that there were so many local counsel. He

19 said, "Yes," he said, "You know, sometimes these

20 Detroit lawyers, they'll come in here and they'll

21 file a lawsuit in the Calhoun County Circuit

22 Court, and they want associated local counsel.

23 They lose."

24 MR. CHADWICK: That is not an uncommon

25 attitude, I don't think, in a lot of places



1 outside the Atlanta area. And even whether it's

2 a matter of true bias or even if the judge thinks

3 they're not being biased, as Chris and I were

4 talking at the break, if the judge knows me and

5 we're having a hearing or we're having a

6 discovery dispute or something that's important

7 or a dispositive motion of some type, and it's a

8 close call, and the judge knows me and thinks I'm

9 honest with the Court and the other one, he's

10 okay, and he tells me this is what the law is and

11 what I should do, as opposed to the lawyer he

12 doesn't know and it's a close call, again, you're

13 likely to prevail.

14 MR. DIMOND: I think that's the way of the

15 world, though. I mean anybody who has to make a

16 judgment, when it comes so close that there's no

17 other rational basis for making a distinction or

18 it's purely discretionary in the sense: Do I

19 give him more time to do this? Do I let him have

20 his Christmas holiday? Do I let him take his

21 family on vacation? Those things are really

22 typically going to go to the hometown team.

23 MR. CHADWICK: And I guess where I come out

24 on this issue of when we really focus on what the

25 protection of the public is for transactional



1 lawyers and the other intellectual property

2 areas, healthcare law seems less concerned than

3 it might be in some aspects of litigation, as

4 Chris was talking about.

5 MR. HOLTAWAY: Charlie, I just want to beat

6 a dead horse for a minute.

7 Mr. Wilson, in Orange County now, for two

8 years these municipalities have lawyers or have a

9 lawyer representing their interests.

10 MR. WILSON: Yes.

11 MR. HOLTAWAY: And they're licensed in New

12 York, as far as you know.

13 MR. WILSON: Yes. I assume, yes.

14 MR. HOLTAWAY: Have they ever raised an

15 issue with you?

16 MR. WILSON: Never. Never.

17 MR. HOLTAWAY: Now, just assume that you are

18 engaged in the unauthorized practice of law in

19 Orange County. Aren't they assisting you in the

20 unauthorized practice?

21 MR. WILSON: Well, I'm not willing to be the

22 first to say anything. But for argument's

23 sake --

24 MR. HOLTAWAY: But I'm just seeing down the

25 road when things fall apart, and immediately the



1 insurance company lawyers come in and they're

2 going to file a malpractice suit. They're going

3 to do this. Now, aren't they estopped from

4 saying that you're not licensed because they've

5 been going on for two years? I mean it's just

6 fascinating.

7 MR. WILSON: Well, if that's a possibility,

8 I hope they are estopped.

9 MR. DIMOND: Well, they're representing the

10 town, though; right?

11 MR. WILSON: Yes, they're representing the

12 town in the negotiation with me.

13 MR. DIMOND: He doesn't have local counsel

14 there. He is legal counsel.

15 MR. McCALLUM: Before we seem too terribly

16 surprised at this, which I can't be because most

17 people who work in a transactional counseling

18 arena see this regularly, routinely, all the

19 time. It's the daily grist of your practice.

20 I was in Frederick, Maryland, two days ago,

21 meeting with a client which is a Maryland

22 subsidiary of a German client. I've done their

23 work for years. We do what we can from Grand

24 Rapids. And what we can't, what has to be done

25 locally, we use local counsel in Maryland. And



1 nobody's ever batted an eye on it. It's just the

2 life of practice.

3 There is, in the restatement of the law

4 governing lawyers, which is intended to be in

5 part the statement of at least what the ALI felt

6 was the law, perhaps with that forward looking,

7 there is a comment that makes it relatively clear

8 that this sort of -- what you're doing ought to

9 be and at least in the ALASU would be routinely

10 permitted in most states.

11 Birbrower came as a bit of a surprise. They

12 think Birbrower's wrong. So you are not without

13 some -- lest you think that there are people who

14 are saying you're in deep trouble here, you're

15 not without some substantial and weighty

16 precedent somewhere saying that this is not a

17 problem.

18 I should also tell you that we'd all be a

19 lot better off in this world if the rest of the

20 states would adopt a statute that's been in place

21 in Michigan for about 25 or 30 years, which says

22 it does not constitute the unauthorized practice

23 of law in this state for a lawyer who is admitted

24 to practice in another state to render legal

25 services in the state temporarily in connection



1 with a particular matter.

2 MR. WILSON: Michigan and Virginia are the

3 only states --

4 MR. McCALLUM: Virginia has a similar

5 statute. And as I've said at other meetings,

6 I've asked people in the bar enforcement area in

7 Michigan if we have lots of rogue Indiana lawyers

8 coming over and creating havoc in Michigan. And

9 apparently nobody has noticed any particular

10 problems. So the great disasters that we thought

11 might be a difficulty have not proven to be a

12 difficulty.

13 Now, if you hung your shingle out in Orange

14 County and if you opened up a storefront, if you

15 put a plastic sign on your motel room that said,

16 "I'm here rendering legal services, come see

17 James Wilson, Esquire, Attorney at Law," that

18 would be a different story. But that's another

19 topic altogether. So I don't think you ought to

20 leave here feeling that by John's question he

21 thinks there's anything wrong with what you're

22 doing.

23 MR. HOLTAWAY: What I have in the back of my

24 mind is: We've had several Chief Justices from

25 across the country say to us either directly or



1 indirectly, "Don't come to us asking us to change

2 rules or make it easier for cross-border practice

3 just because everybody's doing it or just because

4 everybody's breaking the rules, we should change

5 the rules because that's not where we're going to

6 come from. You have to give us positive reasons

7 to do it, not because everybody's doing it."

8 MR. McCALLUM: It's not true that that has

9 quite the intellectual value that they seem to

10 think it does.

11 MR. DIMOND: The record here is going to

12 reflect comments from across the country, city

13 after city, lawyer after lawyer. And the

14 comments are going to, I think, do a mosaic

15 indicating what is the state of the practice of

16 law in America today. And we're going to look at

17 that. And at least we will understand and will

18 report back to the ABA: This is what is going on

19 in America today as, in effect, testified to by

20 lawyers from every nook and cranny, every part of

21 the country. And this is what the lawyers would

22 like to be able to continue to do. And this is

23 the logic that should be applied to each of these

24 particular circumstances.

25 I don't think anyone should worry about



1 common practice being suddenly subject to

2 passionate enforcement. I think what we need to

3 end up with is a set of rational rules that the

4 Supreme Court Justices can become familiar with

5 as well as the practitioners.

6 MR. RAMIREZ: Hopefully.

7 MR. McCALLUM: Bruce, anything more? Larry?


9 MR. McCALLUM: Alan? Does anybody else want

10 to make any statements?

11 Gentlemen, thank you for coming. We