Transcript Of Public Hearing
May 17, 2001
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1 AMERICAN BAR ASSOCIATION
2 COMMISSION ON MULTIJURISDICTIONAL PRACTICE
3 ATLANTA PUBLIC HEARING
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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
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Reported by:
22
Audrey Michelle Ling CCR
23 Kathy Hill & Associates
Certified Court Reporters
24 Post Office Box 50323
Atlanta, Georgia 30302
25 (404) 799-0732
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1 IN ATTENDANCE
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3 ACTING CHAIRPERSON:
4 CHARLES E. McCALLUM, ESQUIRE
5 COMMISSION MEMBERS:
6 LARRY RAMIREZ, ESQUIRE
7 ALAN T. DIMOND, ESQUIRE
8 COUNSEL TO THE COMMISSION:
9 JOHN A. HOLTAWAY, ESQUIRE
10 COMMISSION REPORTER:
11 BRUCE GREEN, ESQUIRE
12 ATTENDEES:
13 WILLIAM SMITH, ESQUIRE
14 CHRISTOPHER A. TOWNLEY, ESQUIRE
15 DWIGHT DAVIS, ESQUIRE
16 PAULA J. FREDERICK, ESQUIRE
17 ROBERT T. MEADOWS, III, ESQUIRE
18 JAMES C. WILSON, JR., ESQUIRE
19 RAYMOND G. CHADWICK, ESQUIRE
20 RANDALL J. CADENHEAD, ESQUIRE
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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
4
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
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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
6
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
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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
8
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
9
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
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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,
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
21
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
22
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
23
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
24
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
25
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
26
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
27
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
28
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
29
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
30
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.
31
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
32
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
33
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?
34
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.
35
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
36
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,
37
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
38
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
39
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
40
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
41
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.
42
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.
43
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
44
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
45
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
46
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?
6 MR. CADENHEAD: Yes.
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
47
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
48
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.
11 MR. CADENHEAD: Yes.
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
49
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
50
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.
51
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
52
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
53
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
54
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
55
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
56
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
57
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,
58
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
59
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
60
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
61
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.
62
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
63
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
64
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
65
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
66
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
67
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
68
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?
69
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
70
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
71
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
72
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
73
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.
74
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
75
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
76
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
77
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
78
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
79
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
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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
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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
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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
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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
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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
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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
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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
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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
88
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
89
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
90
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?
8 MR. RAMIREZ: No.
9 MR. McCALLUM: Alan? Does anybody else want
10 to make any statements?
11 Gentlemen, thank you for coming. We
12 appreciate it. This has been very helpful. This
13 does go into a record. We do, in fact,
14 transcribe these proceedings. They are
15 available, I think, on our site. So you will go
16 into history. Thank you very much.
17 (The hearing was concluded at
18 4:00 p.m.)