Written Testimony On Behalf Of The Akron Bar Association Re: Multijurisdictional Practice (MJP)

    Date: February 5, 2001

    The Akron Bar Association, Akron, Ohio, acting through its Board of Trustees, takes the following position on the issue of MultiJurisdictional Practice (MJP), and presents the following recommendations as our response to the American Bar Association Task Force on MJP. We appreciate the opportunity to study and comment upon these issues, and to have our input considered by the ABA and its MJP Task Force in fashioning the ABA’s position on MJP.

    Our basic position is as follows:

    Local (i.e., state) regulation of the practice of law has served both the public and the profession well, and should continue to do so. The overriding policies for any new professional rules and regulations should continue to be 1) the assurance of protection of the public, 2) the adequate provision of low-cost legal services, and 3) the strengthening of professionalism. The Akron Bar Association believes that a regime of regular and systematic interjurisdictional practice of law would pose undesirable risks to all of these policy goals. It therefore takes the position that regular interjurisdictional practice should not be engaged in, encouraged, or risked by the adoption of rules and regulations concerning multijurisdictional practice. On the other hand, the Akron Bar recognizes the reality and necessity of some isolated multijurisdictional conduct in the legitimate and adequate representation of clients. Therefore, we propose that limited rules recognizing safe harbors for certain conduct in the representation of clients be adopted, with the caveat that any such rules be carefully crafted to avoid opening the door to a general interjurisdictional practice, or starting down the slippery slope of pushing the boundaries of generally local practice norms.

    In crafting our position, the Akron Bar Association through its designated committee posed to itself the following questions, and answered them as indicated.

    First: Is there a problem, and if so, what do we perceive its parameters to be?

    Although there may not be any significant problem at this time, we have a consensus that

    1. it is an area in which lawyers may be being placed at risk of having either disciplinary or client problems, with no clear solutions in many instances, and
    2. it is wise to review the issues systematically and to develop a proactive stance to prevent problems for lawyers, clients, and the practice.

    The parameters of existing or predictable problems seem to be

    1. that lawyers may not know what the appropriate limits are to representing their clients when that representation takes them out of their jurisdiction of admission to practice,
    2. that jurisdictions may not have any mechanisms for ensuring the professional conduct of lawyers who are not admitted either permanently or pro hac vice to practice in their state, and
    3. that a number practices (that appear to be growing and necessary to client representation in our increasingly interconnected world) are not recognized or protected by current definitions of UPL.

    Second: What are the goals of a good regime for MJP?

    We had consensus that the goals for a good regime of MJP regulation are

    1. ensuring that lawyers do not practice law where they should not, e.g., where they have insufficient knowledge of state law and practice to render good representation,
    2. ensuring that lawyers who render some legal services in a state in which they are not admitted to practice are subject to the professional responsibilities and control of that state’s disciplinary authorities, and
    3. protecting lawyers who are doing "what is reasonably done", i.e., practicing in ways that are generally recognized and accepted as necessary for legitimate and adequate representation of their clients
    4. ensuring that clients get good and professional representation and that representation is financially accessible to all the public.

    Third: What are the legitimate objections to permitting MJP as a general proposition?

    The following concerns might be raised in objection to a regime that permitted MJP, particularly very broad-based MJP:

    1. It might permit (encourage?) lawyers to exceed the bounds of their competence by undertaking representation without an adequate knowledge of idiosyncratic state law or procedure.
    2. It might make holding lawyers to ethical standards and subjecting them to discipline more difficult if they violate those standards outside of their own jurisdiction.
    3. It might lead to treating the practice of law too much like a business rather than a profession, permitting large national practices to overrun local practices, with a concomitant diminution in the availability and accessibility of legal services to state citizens. An extensive definition of allowable MJP creates the following concerns:
      1. expertise in local law might be lost;
      2. accessibly priced legal services might be driven out of the local market;
      3. the quality of legal services rendered might be diminished by the loss of professionalism, a reduction in choices of legal representatives, and the loss of ties to the locale. (N.B. This concern is not a mere anti-competitive desire to preserve local clients for local practitioners.)
    5. It might encroach upon the in-state legal community’s special expertise in the law of their state and the ability of states to maintain desired state-specific but idiosyncratic legal rules and practices.

    Fourth: What are the valid reasons for permitting and protecting at least some forms of MJP? What should an MJP regime protect?

    Adequate representation in our interconnected world often requires lawyers to appear in other states and to do client work of some kind there. Also, certain types of practice are not state-based and should be transportable across state boundaries in certain situations. The Akron Bar Association does not think that proposed Ethics 2000 Rule 5.5 as described, or that the Restatement of the Law of Lawyering, adequately encompass or describe with sufficient specificity the legitimate types of activities lawyers should be able to perform beyond the boundaries of their jurisdiction of admission. We suggest that the following types of practices should be protected:

    1. activities that a nonlawyer could perform,
    2. activities of in-house counsel, solely on behalf of their employer, as proposed in Ethics 2000 Rule 5.5 (b) (2) (i) as further explained and limited in comment [4],
    3. activities reasonably related to investigation or ADR in a matter that may be litigated and in which the lawyer expects to be admitted pro hac vice if it eventually comes before an official tribunal, (specifying the extension of the pro hac vice protection as explained in comments [2] and [4] but not made entirely clear in the proposed language of Ethics 2000 Rule 5.5),
    4. activities reasonably related to transactions involving a client whose matter the lawyer is competent to handle, when the gravamen of the legal work must be performed in the jurisdiction of admission, (specifying with more particularity to ensure that 5.5 (b) (2) (ii) does not get used to create a broad practice of MJP based on a mere nexus with the admitting jurisdiction)
    5. activities that constitute consulting, advice or opinion work on a matter of special expertise of the lawyer, if that expertise is either expertise in the law of the jurisdiction of admission, or expertise in an area of law that is uniform or federal, i.e., patent, trademark, copyright, federal taxation, Social Security, and the like.

    How we might create these "safe harbors" while protecting client confidentiality and ensuring disciplinary authority over activities within a jurisdiction turned out to be a difficult issue. Several suggestions (and their pitfalls) were discussed, without resolution. These difficulties counsel for a cautious approach to approving MJP activities before adequate mechanisms for implementation are devised.

    1. The pro hac vice practice appears to have worked well for litigation, but needs to be expanded to permit investigation and ADR activities. However, during investigation, a client may well wish that no notice or official request to appear be entered. Some way of allowing temporary admission to reach back and cover previous activities must be made. Also, in the event no tribunal-oriented proceeding is instituted, lawyers must be protected for the legitimate activities of investigation and dispute resolution that preceded the decision not to file. Notice, with a submission to disciplinary rules and authority, might suffice, but to whom? And how detailed in description of client and issue? And how would confidentiality be protected? Could it post-date the activities, as the current thinking about pro hac vice reaching back provides?
    2. Transactional work within the boundaries described earlier should also be protected. However, lawyers would need to adhere to reasonably understood boundaries at their own risk. Any form of notice or registration, designed to alert the jurisdiction, submit to authority, and provide a presumptive safe harbor for the activities of the lawyer would raise the same issues of administrative burdens and confidentiality identified above in section (1).
    3. One potential solution might be to provide a mechanism by which a lawyer can opt to file a notice or registration, but need not, in order to gain the safe harbors as described above. The notice might serve as additional protection: no UPL proceeding to challenge activities performed pursuant to it, a way to head off client disputes with respect to fees, etc. However, we don’t want to make it a de facto requirement so those who don’t file notices for legitimate (i.e., confidentiality, insignificant amount of work performed in the jurisdiction to make it sensible) reasons end up in jeopardy of losing a "common law" safe harbor.
    4. Affiliating with an in-state lawyer could/should be encouraged for activities that will intersect with state law issues or approach the boundaries of the safe harbor provisions, but need not be required. This mechanism could provide protection for lawyers at their own election, based on their judgment of the helpfulness and necessity of using it in any given instance.
    5. "Virtual" presence via telephone, fax, email, etc. should also be protected, although allowing someone to practice law in another jurisdiction by virtual means when physical presence would not permit that activity should not be permissible.
    6. Any expansion of MJP beyond the pro hac vice arena poses the additional issue of needing to subject the lawyer to the disciplinary authority and ethical standards of the jurisdiction in which the multijurisdictional work is actually performed, an issue not currently addressed in this way by Model Rule 8.5 but proposed in Ethics 2000 Rule 8.5. A rule must clearly address this expansion of submission to disciplinary authority.