Summary Of Written Comments/Position Papers
|Akron Bar Association||Elizabeth Reilly|
|Alberta, The Law Society of||Paul McLaughlin, Practice Management Advisor||Relevance of Technology to the MJP Debate
full text of the GATS document @
Agreement on Internal Trade @
Reciprocal Interjurisdictional Practice Protocol @ www.flsc.ca
|American Arbitration Association (AAA)||Florence M. Peterson, General Counsel|
|American College of Real Estate Lawyers (ACREL)||Caryl B. Welborn, Pres. Mark F. Mehlman, Chair, MJP Working Grp.|
|American Corporate Counsel Association (ACCA)||John McGuckin, Chair of the Advocacy Committee, Board of Directors||Safe Harbor Policy
A Common Sense Proposal for Multijurisdictional Practice by ACCA, APRL and NOBC
|Antitrust Law, ABA Section of||Barbara O. Bruckman|
|Association of Professional Responsibility Lawyers (APRL)||Anthony Davis / Robert Creamer||Prototype Registration Rule
A Common Sense Proposal for Multijurisdictional Practice by ACCA, APRL and NOBC
|Barker, William T.|
|Business Law, ABA Section of||Simon M. Lorne|
|California Supreme Court MJP Task Force||Susan Goins|
|Camden County Bar Association||Warren W. Falk, Chair of MJP Committee|
|Client Protection, ABA Standing Committee on||Lynda C. Shely, Chair||Proposed Rule 1.4 and 7.2 amendments
on malpractice coverage disclosure
|Colorado Bar Association||Robert R. Keatinge, Chair of MJP Committee||Draft Rules on MJP|
|Connecticut Bar Association||Peter Costas, Chair CBA MJP Committee|
|Corbett, Michael L.||---|
|Delaware State Bar Association||Dennis L Schrader, President|
|Ethics 2000||Lucian Pera, Becky Stretch||House of Delegates Report
Nov. 2000- May 2001 changes
|Federal Communication Bar Association (FCBA)||Sidney White Rhyne||3/9/01 Comment to Ethics 2000
|Fox, Lawrence J.||---|
|General Motors||Thomas A. Gottschalk, Exec. V.P.|
|Giannini, Joseph R.||---||Border Barrier/California Should Reform Reciprocity Policy for Out-of-state Lawyers|
|Health Law, ABA Section of||Patricia T. Meador, Chair|
|Idaho||Rule 204A reciprocity admission rule with Oregon and Washington|
|Intellectual Property Law, ABA Section of||Pamela I. Banner|
|International Association of Defense Counsel (IADC)||William T. Barker||IADC Model Rule on Pro Hac Vice Admission|
|International Law and Practice, ABA Section of (SILP)||Daniel B. McGraw, Chair||A: Model FLC Rule and Report
B: Switzerland interstate practice
C: Australia interstate practice
5/9/01 Magraw letter to Ethics 2000 Commission Re: Rule 8.5
|Law Practice Management, ABA Section of||K. William Gibson,
|Law Student Division, ABA||John Okray, Vice-Chair-Elect||LSD Resolution|
|Law Society of England and Wales||Jonathan Goldsmith, Director||Services Directive Extract; Establishment Directive Extract|
|Legal Assistance for Military Personnel, ABA Section of||Brigadier General David C. Hague|
|Legal Education and Admissions to the Bar, ABA Section of||Honorable Gerald W. Vandewalle, Chair-Elect||Proposed Model Motion Rule
|Litigation, ABA Section of||John Robinson, Chair, MJP Committee||Model Pro Hac Vice Rule
Revised Pro Hac Vice Rule 8/20/01
|Los Angeles County Bar Association (LACBA)||Samuel L. Bufford|
|Louisiana State Bar Association||Joseph L Shea, Jr., Chair, MJP Cmt.|
|Maritime Law Association||George Koelzer, Chair MJP Committee|
|Minnesota Board of Law Examiners||Margaret Fuller Corneille|
|Missouri Bar, The||John W. Briscoe, President||Proposed Rule on UPL|
|Moser, M. Peter|
|Munneke, Professor Gary A., Pace U. School of Law||Practicing Law Across Geographic and Professional Borders: What Does the Future Hold|
|National Client Protection Organization (NCPO)||William Ricker, Jr., President||Interjurisdictional Protocol-Federation of Canadian Provinces|
|National Organization of Bar Counsel (NOBC)||Mark A. Armitage||Comments to E2000
A Common Sense Proposal for Multijurisdictional Practice by ACCA, APRL and NOBC
|Nebraska State Bar Association||Jane Schoenicke||Revisions to 5.5|
|Nevada||Allen Kimbrough, Exec. Dir.|
|New Jersey State Bar Association||Barry E. Epstein, President
|Draft Rule 5.5
|New Mexico State Bar|
|New York County Lawyers’ Association||Craig A. Landy, President||Proposed Rule 5.5; Proposed Rule 8.5; Pro hac vice and local counsel proposals|
|New York, The Association of the Bar of the City of||Evan Davis, President|
|North Dakota, State Board of Law Examiners||Rebecca Thiem, President|
|Ohio State Bar Association|
|Oklahoma Bar Association||Guy Clark||Accord on MJP; Second Info. Report: MJP|
|Overton, George W.|
|Public Utility, Communication and Transportation Law, ABA Section of|
|Real Property, Probate and Trust Law, ABA Section of||Louis A. Mezzullo, Chair & David K.Y. Tang, Chair- Elect|
|Restatement of the Law Governing Lawyers (2000)|
|Ribstein, Professor Larry George Mason U. School of Law||Ethical Rules, Law Firm Structure and Choice of Law @ www.ribstein.org|
|Ross, Patricia B.||---|
|Russell, Jeffrey L.||---|
|Senior Lawyers Division, ABA||Richard Allen, Chair||Resolution adopted 4/21/01|
|Sisk, Professor Gregory C., Drake U. Law|
|Solo and Small Firm Practitioners, ABA Standing Committee on||Bevin B. Bump, Chair|
|Specialization, ABA Standing Committee on||John M. Brumbaugh|
|Stinson, Philip Matthew Sr.|
|Taxation, ABA Section of||Stefan F. Tucker|
|Terry, Professor Laurel S.||Penn State Dickinson School of Law||Cover Letter to Commission, Overall Summary, ABA Model FLC Rule, ABA-Brussels Agreement, Interjurisdictional Practice Protocol of Canada - Permanent as FLC, Interjurisdictional Practice Protocol of Canada - Temporary Mobility, European Community Council Directive (77/249/EEC), European Community Council Directive (89/48/EEC), European Community Directive (98/5/EC), General Agreement on Trade Services, IBA Statement, IBA FLC Rule, NAFTA and Proposed NAFTA Model FLC Rule|
|Tort and Insurance Practice, ABA Section of||Mitchell A. Orpett, Chair|
|United States Army||Thomas J. Romig, Brigadier Gen’l.|
|United States Chamber of Commerce||Stephen A. Bokat, Sr. VP & Gen’l Counsel|
|United States Navy||Ann DeLaney|
|Washington State Bar Association||Robert Welden, General Counsel||New rules at
July 2001 report of WSBA study group (not yet approved by Board of Governors)
|Wisconsin, State Bar of||George C. Brown,
|Young Lawyer’s Division, ABA||Amy Cashore||Summary of Survey Results|
SUMMARY OF WRITTEN COMMENTS/ POSITION PAPERS
The Akron, Ohio, bar proposal cautions that regular and systematic inter-jurisdictional practice of law should not be encouraged because it poses risks to the public, professionalism and the adequate provision of low-cost legal services. The Akron proposal is similar in scope to the changes recommended to Rule 5.5 by the Ethics 2000 Commission and the law as expressed in Section 3(3) of the Restatement of Law Governing Lawyers, with the caveat that any such rules be carefully crafted to avoid opening the door to a general inter-jurisdictional practice. The Akron proposal would protect activities:
that a non-lawyer could perform,
of in-house counsel, solely on the behalf of their employer,
reasonably related to investigation or alternative dispute resolution 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,
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, and
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."
In a report supplemental to its New York testimony, the Akron Bar Association reacts to characterizations of its position as protectionist and parochial, noting the economic self-interest of proponents of "widespread and permissive MJP."
The Akron Bar Association stresses the importance of commitment to local communities and suggests lawyers in multi-jurisdictional practice may misjudge the limits of their ability to render competent advice given the subtle differences between states’ laws. The Akron Bar Association cautions against predatory practices of national concerns that drive out local competition and thus advocates "a cautious and incremental approach" to MJP.
The Law Society of Alberta offers the model of a reciprocal protocol as a starting point for achieving greater inter-jurisdictional mobility incrementally. The reciprocal inter-jurisdictional practice protocol, adopted by all but two provincial law societies in Canada, features the following:
commitment to mobility;
temporary mobility (safe harbor) rules;
occasional appearance (the 10-20-12 rule wherein a lawyer who qualifies can engage in the practice of law on not more than 10 matters for not more than 20 days in total during any 12-month period);
code of conduct (a lawyer who practices in another province is subject to the local code of professional conduct and rules);
trust accounts (a visiting lawyer may not maintain a trust account and may not handle trust funds other than retainers which are promptly put in the lawyer’s home territory trust account);
discipline (the host governing body assumes responsibility for misconduct proceedings and can issue a reprimand, fine, costs, temporary or permanent prohibition of practice in the host territory and a declaration that the lawyer would have been suspended, restricted or disbarred has he/she been one of its members; upon such a declaration, the home governing body must take disciplinary action and may impose any appropriate penalty. The home governing body retains original jurisdiction over its members for their conduct in other provinces.)
insurance requirements (up to $1 million per occurrence and $2 million per member aggregate limit per year);
a national client security fund;
mediation and arbitration for disputes arising out of the protocol;
provisions for permanent mobility, foreign legal consultants and basic rules for inter-jurisdictional law firms.
The law societies of the Western Canadian provinces have since replaced the protocol’s complex safe harbor rules with one of "self-monitored competence," analogous to the drivers’ license rule. In addition, the Western Canadian provinces now allow a lawyer licensed in a Western Canadian province to practice on any number of matters for up to six months in a year in any other Western Canadian province.
The AAA urges the Commission to keep alternative dispute resolution free from restrictive regulation and to allow continuation of AAA’s 75-year practice of providing "neutrals" (many of whom are lawyers) who best meet the needs of a case, without regard to the locale of the hearing. AAA asks that the Commission make accommodation for representation of a party by out-of-state, in-house or foreign counsel in ADR proceedings. AAA cites problems associated with a local counsel requirement such as lack of legal knowledge applicable to a case, unnecessary scheduling problems, and expense and notes that requiring local bar representation drives arbitrations to "more friendly" jurisdictions.
ACREL advocates changes in UPL statutes and other rules to reflect current realities in interstate practice of transactional law. Thus, ACREL approves the Ethics 2000 Commission’s Model Rules 5.5 and 8.5 with some revision so that a lawyer in good standing in a home state may practice in a host state if the lawyer:
is not permanently based in the host state,
advises the client that the lawyer is not admitted to practice in the host state,
is acting with respect to a matter that arises out of, or is reasonably related to, the lawyer’s practice in his or her home state;
performs services in the host state that would not constitute UPL if performed by a non-lawyer in the host state.
provides legal services as in-house counsel to an employer, or its affiliates or employees in connection with the business of such entities; and
submits to ethical and disciplinary authority of the host state.
ACREL urges the Commission to recommend that the ABA aggressively pursue legislation and rules changes to implement the plan outlined above.
Response to Commission Questions
Letter of 2/16/01
The American Corporate Counsel Association’s proposal on multijurisdictional practice envisions a "national compact" under which member states would: continue to regulate lawyer admission (both first-time and subsequent admission), discipline, and other practice requirements such as continuing legal education, pro bono, participation in Interest on Lawyers’ Trust Accounts programs, and proof of professional liability insurance; allow any attorney admitted in at least one state to transact business for a client in another member state on a temporary basis under an "inferred license"; and permit any lawyer in good standing who has been admitted to practice in one state to move to a new state of residence and become a member of the bar there without having to take another bar examination so long as the lawyer establishes that he or she is a member in good standing of a state bar, passes a character check, and pays all relevant fees.
In a supplemental policy statement, ACCA affirms its support for comprehensive reform through a national compact but recognizes that some states may be more comfortable with interim relief through safe harbor provisions. As an interim step in MJP reform, ACCA generally endorses the Ethics 2000 Commission’s proposed Model Rule 5.5. ACCA urges that, at a minimum, any states examining adoption of a safe harbor provision on MJP should include protection for:
employed lawyers acting on their employer-client’s behalf in non-litigation contexts;
lawyers pursuing "cross border" legal matters for a client in a jurisdiction in which the lawyer is not admitted; and
lawyers who are associated with locally admitted counsel.
On September 25, 2001, in conjunction with APRL and NOBC, ACCA submitted a Joint Proposal entitled A Common Sense Proposal for Multijurisdictional Practice. ( For a synopsis of this proposal, see the NOBC summary below.)
The ABA Section of Antitrust Law urges the Commission to recommend that the ABA promote measures to facilitate MJP. At a minimum, reforms should allow clients to retain lawyers licensed in any state in connection with issues of federal or international law and incidental state law, and the ability of in-house lawyers to practice on behalf of their employers and affiliated companies anywhere in the U.S.
The Section advises that proposals regarding national admission by motion or national licensing require further study. It rejects proposals to require admission pro hac vice to perform investigations prior to filing litigation, to pursue discovery out of the state in which a suit is filed, or to conduct arbitration or mediation because this could result in unduly burdensome bureaucratic procedures.
The Section endorses the Restatement position and also the Ethics 2000 Commission’s proposal to modify Rule 8.5, ie., to include an express provision subjecting out-of-state lawyers to discipline for conduct within the state.
As for amendments to Rule 5.5, the Section acknowledges that the four safe harbors cover most MJP situations but prefers the more general approach of the Restatement because disputes over language in proposed amendments to Rule 5.5 may lead to restrictions on MJP and client choice. Specifically, the "on behalf of a client" language in the third safe harbor may be interpreted to require that a client be in the jurisdiction in which the lawyer is admitted. In addition, Comment 4 could suggest that in-house counsel should be admitted to practice in the jurisdiction in which they reside except "in circumstances that may make it impractical."
The Section supports the ABA’s efforts to encourage the Federal Judicial Center to develop uniform local rules on admission to the bars of federal district courts. It also supports efforts to facilitate MJP across international borders.
The Association of Professional Responsibility Lawyers envisions a two-tier approach to multijurisdictional practice: First, states would adopt an exception to their unauthorized practice rules and regulations, along these lines: The prohibition on the unauthorized practice of law shall not apply to an attorney duly licensed and authorized to practice law in another state while such attorney is temporarily in this state and is engaged in either a particular matter, or particular matters to the extent such matters arise out of or are otherwise reasonably related to the lawyer’s practice in such other state.
The second tier of regulation calls for a uniform registration system that kicks in if a lawyer licensed in another jurisdiction wants to open an office in a different state or otherwise engage in continuous or regular representation there. Lawyers applying for registration status in the host state would file a certificate evidencing: "three years’ prior admission to another United States jurisdiction; a certificate of good standing from the home jurisdiction; and the statements of two sponsors, who are members of the state’s bar, affirming the applicant’s character and fitness."
Applicants would also be required to certify that they have read the state’s ethics rules; pay a registration fee of $500 (or more) as well as annual fees; certify annually that they have remained in good standing in the other jurisdictions where they have been admitted; and avoid appearing alone in any court without an admitted co-counsel unless the court granted permission under the existing pro hac vice rule.
The proposal gives states flexibility to adopt limitations on a lawyer’s practice such as requiring registered lawyers who are licensed outside the state: to be excluded from certain particularly local matters, such as real estate and family law, without the "supervision" of an admitted lawyer; to provide written notice of the lawyer’s status as a registered, but not fully admitted, lawyer to individual (but not corporate) clients; or to furnish proof of professional liability insurance.
Finally, the proposal specifies that registered lawyers would be subject to the jurisdiction of the host state’s disciplinary agency and gives the state’s character and fitness authority the right to review and object to any particular applicant. Applicants who receive an adverse character and fitness action would have the right to a hearing and judicial review under APRL’s plan.
On September 25, 2001, in conjunction with ACCA and NOBC, APRL submitted a Joint Proposal entitled A Common Sense Proposal for Multijurisdictional Practice. ( For a synopsis of this proposal, see the NOBC summary below.)
William T. Barker, who, as Chair of IADC’s Ad Hoc Committee on Interstate Practice, offered comments and a proposed Model Pro Hac Vice Rule at the Mid-Year Meeting in San Diego, offers his own personal views in a supplementary comment. Though sympathetic to more extensive MJP proposals, he urges the Commission not to limit itself to a "single grand proposal that may not be adopted or widely implemented for a long time, if ever" and instead supports the following:
the Model Pro Hac Vice Rule as an interim step toward achieving more far-reaching MJP proposals;
an organizational lawyer rule permitting ready mobility of in-house counsel;
provisional admission procedures during the pendency of an application for admission on foreign license;
licensing of foreign legal consultants;
Ethics 2000 Commission’s draft revisions to Model Rules 5.5 and 8.5.
In addition, he suggests a Model Rule allowing foreign lawyers to take the bar examination if their education and experience provide assurance of competence comparable to local education requirements.
He explains how the "IADC/TIPS proposal" (Model Pro Hac Vice Rule) addresses the eight public interests identified in the Commission’s Inventory. He warns against "putting all of the ABA’s multi-jurisdictional practice eggs in the Ethics 2000 basket" as the Ethics 2000 proposals may take longer to gain approval and adoption than the simple Model Pro Hac Vice Rule.
In a memorandum dated 8/6/01, William Barker discusses whether an out of state lawyer should get a safe harbor for transactional representation in the host state of a client from the lawyer’s home state or from a third state, without involvement of local counsel. He offers his article, Extrajurisdictional Practice by Lawyers, forthcoming in The Business Lawyer to show that the law on UPL by lawyers is very permissive as to in-state transactional representation of out-of-state clients and that such permissiveness is solidly based in public policy. He suggests that "so long as the out-of-state lawyer does not maintain any permanent physical presence in the state which might attract the attention of in-state prospective clients, the host state does not seem to have any nonprotectionist interest in limiting the frequency or duration of the out-of-state lawyer’s business in the service of out-of-state clients."
In a memorandum dated 9/5/01, William Barker submits further personal supplemental comments, stating that, in general, he does not oppose the Litigation Section’s Model Pro Hac Vice rule on the points of substantive difference from the rule proposed by IADC/TIPS. He agrees with the following provisions in the Litigation Section’s rule:
(provides that representation by out-of-state lawyers in arbitration is proper without any local admission);
duties of in-state residents
(permits pro hac vice admission of locally resident in-house lawyers and of lawyers who live in the state but practice exclusively from offices outside the state);
duties of in-state lawyers
(makes generally applicable the duties of local counsel in cases where an out-of-state lawyer has been admitted pro hac vice);
reporting of disciplinary proceedings
(places in the text of the rule the clarification that the requirement to report disciplinary proceedings in an application for admission pro hac vice is only triggered when the proceeding is based on a finding of probable cause, not mere grievance).
He also addresses several other issues, including the relevance of local marketing. He offers the following comment language to deal with the problem of permitting a "virtual presence" in a host state:
[11a] If a lawyer or the lawyer’s firm target marketing efforts at nonlawyers who are residents of this state or have principal places of business in this state and such marketing efforts are more than an insubstantial portion of all marketing efforts by the lawyer or firm, proposed representations apparently resulting from such marketing efforts may more readily be considered as part of a regular practice in this state than if the lawyer or firm did not engage in such marketing effort."
Barker suggests that the Commission may wish to consider a possible alternative version of the Model Pro Hac Vice rule for federal courts, given that federal courts do not have broad authority to authorize the practice of law.
In addition to stylistic differences between the Litigation Section’s proposal and that of IADC/TIPS, Barker notes that the Litigation Section’s proposal does not include the procedural protections against a denial of admission. The most important difference, however, is that the Litigation Section’s version omits any comments to the rule. Barker notes that comments will be useful in the administration of the rule, especially as regards the standard for when a lawyer is engaged in regular practice and will thus be denied admission pro hac vice.
In addition to supporting the changes proposed by the Ethics 2000 Commission as well as the adoption of uniform rules for pro hac vice admission, the ABA Section of Business Law suggests expanding and refining Model Rule 5.5’s safe harbor for lawyers to make it clear that:
It is not unauthorized practice for a lawyer to act on a matter involving federal law or the law of one or more other domestic or foreign jurisdictions, provided that "the lawyer is not permanently based in the jurisdiction in which he or she is not admitted, and the lawyer does not hold himself or herself out as admitted to practice in the jurisdiction in which he or she is not admitted."
It is not unauthorized practice for a lawyer to perform services in another jurisdiction that would not constitute unauthorized practice if performed by a non-lawyer in the jurisdiction in which the lawyer is not admitted;
In-house counsel may render legal services, other than appearances before tribunals, to their employer and its organizational affiliates in jurisdictions in which such counsel are not admitted;
"In circumstances in which litigation is not pending before a tribunal," a lawyer admitted in a state may in a different jurisdiction perform services "in connection with factual investigation or other work in preparation for or anticipation of litigation, arbitration, mediation, or other dispute resolution process, regardless of where it is anticipated such litigation other dispute resolution process may be initiated and regardless of whether it is ever in fact initiated"; and
The safe harbor extends to "services in a jurisdiction by a lawyer admitted in another jurisdiction in connection with arbitration, mediation, or other dispute resolution process."
Finally, the section urges the MJP Commission to recommend appropriate state or federal action to implement the objectives of the ABA’s Model Rule on Foreign Legal Consultants.
CALIFORNIA SUPREME COURT ADVISORY TASK FORCE ON MJP
The California Supreme Court Advisory Task Force on Multijurisdictional Practice offers a preliminary report with recommendations for an incremental approach to MJP that involves two components: registration of in-house counsel and public interest lawyers, and safe harbors from UPL prohibitions.
The registration system contemplates a process similar to the bar admission process, but would permit a lawyer licensed and in good standing in another jurisdiction in the United States to practice in the host state without taking the bar exam or becoming a member of the State Bar. Registration is limited to two groups: (1) in-house counsel who provide out-of-court legal services exclusively for a single, full-time business entity employer that does not provide legal services to third parties, and (2) public interest lawyers who provide services on an interim basis to indigents, under the supervision of an experienced member of the State Bar, at a public interest institution that qualifies as a "legal service project" under the Business & Professions Code.
The safe harbor component applies to two groups: (1) transactional and other non-litigating lawyers providing legal services on a temporary and occasional basis, and (2) litigating lawyers providing legal services in anticipation of filing a lawsuit or as part of litigation pending in another jurisdiction. The task force’s recommendation regarding such safe harbors is contingent on the clear and narrow definition of permissible activities.
New Jersey’s Camden County Bar Association Committee on Multi-jurisdictional Practice unanimously supports the revisions to Model Rule 5.5 proposed by the Ethics 2000 Commission, contingent on the Model Rule being adopted by all jurisdictions in the United States. The Committee opposes any attempt to extend the authorization to practice law in a foreign jurisdiction beyond the specifically approved activities.
Statement to the Commission
Proposed Amendments for Malpractice Coverage Disclosure
The ABA Standing Committee on Client Protection urges the Commission to include these requirements in any MJP regulatory framework:
"a lawyer’s home licensing state’s client protection fund will compensate losses caused by that lawyer, even if the loss occurs in another state, unless the lawyer has contributed to the foreign state’s fund through either reciprocal admission or pro hac vice fees;"
"a lawyer must agree to participate in a state’s fee arbitration program if the lawyer represents a client in that state;"
"all private practice lawyers must disclose, in writing, whether or not they have malpractice insurance."
The Committee attaches proposed changes to Rules 1.4 and 7.2 of the Model Rules of Professional Conduct to require malpractice coverage disclosure.
On June 22, 2001, the Colorado Bar Association Multidisciplinary Task Force submitted a draft report with the following proposed rules:
the host state supreme court adopts the rules pursuant to its exclusive authority to define the practice of law and prohibit UPL in the state:
UPL shall not include practice by a lawyer not licensed in the host state, but who is in good standing in all jurisdictions where he or she is admitted, unless the lawyer has established a domicile or a place for the regular practice of law in the host state;
UPL does not extend to in-house counsel in the host state provided the lawyer is "associated solely with a person or entity in the capacity of an attorney or general counsel," has advised the person or entity of the status his or her license, and has obtained informed consent. This informed consent may be given retroactively.
a lawyer not licensed in the host state who appears in any court of record or before any administrative hearing officer must comply with admission rules of that court or officer;
rules of professional conduct and attorney discipline and disability rules of the host state apply. (The report contemplates that conflicts between state ethics rules will be resolved pursuant to regular conflicts of laws rules, as if the lawyer was licensed in both jurisdictions.)
Subsequently, the MJP Commission received a report by the joint Multidisciplinary Practice Task Force of the Colorado and Denver Bar Associations and the Ad Hoc Committee on the Unauthorized Practice of Law. This report recommends that the Board of Governors of the Colorado Bar Association encourage the Colorado Supreme Court to adopt proposed rule revisions that allow for some forms of multijurisdictional practice of law. These revisions, the subject of a hearing before the Colorado Supreme Court on January 31, 2002, exclude from the definition of unauthorized practice of law the temporary practice of law in Colorado by a lawyer licensed in another state and in good standing in all jurisdictions in which the lawyer is admitted, unless the lawyer has established a domicile or a regular place for practicing law in Colorado. The revisions leave in tact existing pro hac vice admission rules and also subject the out-of-state lawyer to Colorado attorney discipline rules, proceeding and remedies.
Over dissent by the UPL Committee and a member of the MDP Task Force, the report recommends support of this additional language to exempt in-house counsel from the UPL rules:
(c) The unauthorized practice of law shall not include the practice of law by an attorney who is not licensed in Colorado, but who practices law in Colorado and who is licensed to practice law in any other jurisdiction of the United States, and who is a member of the bar and in good standing in all such courts and jurisdictions where he or she is licensed, if such attorney’s practice of law is limited to acting as counsel for a single client, and the attorney has advised such person or entity of the status of his or her license, and the attorney has obtained the informed consent of such client (which consent may be given retroactively).
The Connecticut Bar Association House of Delegates voted to table the Report of the CBA MJP Committee. The chair of that committee, Peter Costas, had presented the following at the Fordham MJP hearing in March, 2001:
The recommendation of the Connecticut Bar Association Task Force on MJP is in accord with the Ethics 2000 Commission’s Model Rule 5.5 with the exception of two extra clauses, shown below in italics, appearing in sections (a) and (b).
"(a) A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction . Conduct described in subsection (b)(1) and (2) in another jurisdiction is not the practice of law for purposes of this subsection (a).
(b) A lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law in this jurisdiction when engaged in the following activities, provided such activities would not constitute the unauthorized practice of law in such other jurisdiction if conducted in such other jurisdiction by a lawyer admitted in this jurisdiction:
(1) the lawyer is authorized to appear before a tribunal in this jurisdiction by law or order of the tribunal or is preparing for a proceeding in which the lawyer reasonably expects to be so authorized; or
(2) other than making appearances before a tribunal with authority to admit the lawyer to practice pro hac vice:
(i) a lawyer who is an employee of a client acts on the client’s behalf or, in connection with the client’s matters, on behalf of the client’s other employees or its commonly owned organizational affiliates;
(ii) the lawyer acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer’s practice on behalf of the client in a jurisdiction in which the lawyer is admitted to practice; or
(iii) the lawyer is associated in the particular matter with a lawyer admitted to practice in this jurisdiction.
(c) a lawyer shall not assist another person in the unauthorized practice of law."
Michael L. Corbett, national counsel for Stewart Title Insurance Company in New York, focuses the Commission’s attention on the new dynamic of multi-million dollar commercial mortgage financings now daily closing in Manhattan. He discusses Birbrower’s impact on multi-state corporate transactions and concludes that such transactions do not de facto breach UPL statutes in states that are often only minimally involved.
Delaware State Bar Association’s MJP Special Committee concludes that the current regulatory system is working well and needs no major overhaul, however, it recommends some adjustments. While the Committee generally supports the Ethics 2000 Commission amendments to Model Rule 5.5 as regards litigation and transactional practice, it advises that the boundaries UPL should be better defined. Specifically, Proposed Model Rule 5.5’s exceptions do not offer a formal definition of UPL and the "reasonably related" standard is "so broad that it could vitiate the Rule." As regards in-house counsel, the committee notes that Proposed Model Rule 5.5 "recognize[s] de jure what is now the de facto situation" and agrees that there is no need to force in-house counsel to be admitted in the state in which they practice. However, the Committee suggests further discussion on the question of whether in-house counsel ought to register with the state supreme court, be subject to its disciplinary process, and possibly pay an assessment. As for federal specialty law practice, the MJP Special Committee is split on the issue of how much regulation is necessary: some believe such practitioners should be admitted to the state bar; others, a majority, would require only that these lawyers register with the state supreme court and submit to discipline and possible assessment.
The Ethics 2000 Commission has recommended amending ABA Model Rule of Professional Conduct 5.5, on unauthorized practice, to provide four safe harbors for multijurisdictional practice: (1) where the lawyer is preparing for a proceeding in which the lawyer expects to be admitted pro hac vice; (2) where the lawyer "acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer’s practice on behalf of a client" in a jurisdiction in which the lawyer is admitted; (3) where the lawyer is acting on behalf of a client of which the lawyer is an employee, or on behalf of the client’s other employees; and (4) where the lawyer is "associated in a particular matter" with a lawyer admitted in the jurisdiction. Under the Commission’s proposed amendments to Rule 8.5 on lawyer discipline, a lawyer who "renders or offers to render any legal services" in a jurisdiction in which the lawyer is not admitted to practice will be subject to the disciplinary authority and rules (including choice of law rules) of that jurisdiction, as well as those of the jurisdiction in which the lawyer is licensed.
The FCBA endorses the Restatement approach which allows lawyers a transitory presence in a host state "to the extent the lawyer’s activities in the matter arise out of or are reasonably related to the lawyer’s practice" elsewhere. The FCBA also endorses Ethics 2000 changes in Rules 5.5 and 8.5 but urges expanding the safe harbor to representation of clients that "arises out of or is otherwise reasonably related to the lawyer’s representation of ... any client in any jurisdiction primarily as to matters of federal law."
In a March 2001 comment to the Ethics 2000 Commission, the FCBA suggested a further refinement to Rule 5.5 (b)(ii) concerning placement of the phrase "on behalf of a client." This modification is necessary to avoid a potential misreading that the protection for lawyers who render legal services for their clients in jurisdictions other than those in which the lawyers are admitted to the bar is limited to clients who are located in the lawyer’s home jurisdiction.
In his FCBA statement summary at the San Diego MJP hearing, Sidney White Rhyne noted that the FCBA revision would be unnecessary if the "on behalf of a client" language in Rule 5.5 were simply deleted so that a lawyer would come within the protection of the exception whenever the conduct "arises out of or is otherwise reasonably related to the lawyer’s practice."
Lawrence J. Fox warns "before the clarion call [of free enterprise] leads us all, like so many lemmings, over a deregulated cliff, " the Commission should remember that "lawyer rules and discipline are important values that must be sustained and expanded, not abandoned, and lawyers play a key role as officers of the court that is jeopardized when their practice is untethered from a jurisdiction of admission." Fox predicts problems in conflicts of laws, overworked disciplinary agencies not dealing with out-of-state transgressors, and a "race to the bottom" effect of lawyers seeking to escape jurisdictions with more stringent rules of professional conduct. Fox also expresses concern regarding the effect of multi-jurisdictional practice on the institution of the bar in areas such as pro bono service, improvement of the law, client security funds and continuing legal education programs.
GENERAL MOTORS ( http://www.abanet.org/cpr/mjp/mjp-comm_gm.doc)
The General Motors Corporation’s Legal Staff urges the ABA to facilitate cross-jurisdictional practice, particularly in the context of informed client consent. Legal issues for this and many other companies arise across all state and national boundaries, and thus necessitate deployment of lawyers with developed legal expertise to any jurisdiction where legal issues arise. Limits on multi-jurisdictional practice restrict the ability of the company’s lawyers, whether staff lawyers or outside counsel, to provide required skills, thus increasing costs, compromising the effectiveness of legal services, and undermining the ability of these lawyers to serve their corporate client.
Joseph Giannini, a practitioner licensed in New Jersey and Pennsylvania, notes many other learned professions regularly provide for reciprocal licensing and urges the Commission to follow suit "to bring the legal profession in harmony with the 21 st century." Freedom of speech and the right to petition for grievances provide the basis for the following proposals:
"a sister-state attorney, who on a temporary basis renders legal services in a state her or she is not licensed, is entitled to collect their fee and they are not guilty of any crime."
"a sister-state attorney with three or four years experience who moves to another state on a permanent basis should be presumed competent and entitled to be admitted to that state’s bar on motion."
The American Bar Association Health Law Section supports the Ethics 2000 Commission’s revisions of Model Rule 8.5 and Model Rule 5.5 with safe harbor language expanded as follows:
" 1. the lawyer is not permanently based in the jurisdiction in which he or she is not admitted (for purposes of this and subsequent rules, a lawyer is permanently based in a jurisdiction in which (a) the lawyer is admitted to practice, (b) the lawyer maintains an office or similar location for the purposes of providing legal services, and (c) the lawyer regularly and continuously provides legal services to clients in the jurisdiction.)
2. the lawyer does not hold himself or herself out as admitted to practice in the jurisdiction in which he or she is not admitted, and
3. the lawyer is acting with respect to a matter that arises out of or is reasonably related to the lawyer’s practice in the jurisdiction where he or she is admitted."
The Section supports the proposed safe harbor for in-house counsel in 5.5(b)(2)(I), and also suggests safe harbors for:
a lawyer acting with respect to matters involving federal law;
work in preparation of litigation and ADR;
"services in a jurisdiction adopting the rule by a lawyer admitted in another jurisdiction but not in the jurisdiction adopting the rule in connection with arbitration, mediation, or other non-judicial dispute resolution process";
services that would not constitute UPL if performed by a non-lawyer.
In addition, the Health Law Section encourages controlling authorities to make pro hac vice admission rules uniform throughout the United States.
The Section urges the Commission to recommend state and federal legislation required to implement these proposals.
Idaho Bar Commission Rule 204A, which goes into effect Oct. 1, is part of a three-state agreement for reciprocal admission process among Idaho, Oregon, and Washington.
The Idaho rule provides that an applicant may apply for admission to practice without taking the state’s bar examination if the applicant demonstrates to the satisfaction of the board of commissioners that he or she:
has taken and passed the Oregon and/or Washington bar examination;
is an active member of either or both of those state bars;
has "actively, substantially, and continuously practiced law as his or her principal occupation in one or both of those states" for not less than three years immediately preceding the application for admission;
is a person of good moral character; and
is a graduate of an approved law school.
Moreover, the rule says that every reciprocal applicant must pay to the Idaho State Bar a fee of $690 plus any additional investigation fees that the board of commissioners deems necessary.
Finally, all applicants admitted to practice under this rule must certify within six months of admission that they have attended at least 15 hours of continuing legal education on Idaho practice and procedure and ethics requirements, in a course administered or approved by the Idaho State Bar.
The ABA’s Intellectual Property Law Section voices a concern that current UPL rules unnecessarily impinge upon a client’s ability to choose lawyers with the requisite specialized degree of expertise in intellectual property law, especially given the increasing importance of technology, single national and global market places, and digital commerce. The IPL Section advises the following changes, though declines to suggest how these changes should be accomplished:
UPL laws should be uniform and clear as regards legal work by out-of-state lawyers; and
lawyers in good standing in their home states should be allowed to practice in other states if they are full-time employees of a company or other entity, they temporarily visit a state to engage in a particular matter or work for a particular client; they write letters, make phone calls or take other actions on behalf of their client on a particular matter in another state.
Memorandum Dated 2/5/00
Model Rule on Pro Hac Vice Admission
The International Association of Defense Counsel supports the Ethics 2000 Commission revisions to Model Rules 5.5 and 8.5. In addition, IADC’s plan for regulating lawyers’ multistate practice calls for adoption of a model pro hac vice rule that would give courts discretion to admit eligible out-of-state lawyers who have filed a verified application with the court. The application would list:
the lawyer’s residence and business addresses;
the courts in which the applicant is licensed to practice;
the nature of any disciplinary proceedings brought against the attorney;
any contempt or other court sanction imposed against the lawyer;
courts or agencies in the state for which the lawyer has requested pro hac vice status during the previous two years;
whether the applicant or any other lawyer in his firm has been denied pro hac vice admission or had such admission revoked within the past five years;
whether any client in the current proceeding resides or has a principal place of business within the state; and
the in-state lawyer who is the current attorney of record for the client the applicant seeks to represent.
The IADC’s model rule calls for courts to exercise their discretion liberally to grant admission unless the court finds the admission would be detrimental to the client, the parties, or the administration of justice, or if "the applicant has engaged in such frequent appearances as to constitute regular practice in this state."
The rule further provides that an applicant agrees to "submit to the jurisdiction of the courts of this state for purposes of contempt, sanctions, and discipline for all conduct relating to the proceeding in which applicant seeks or is permitted to appear and for any other conduct in this state."
Finally, the rule makes clear that, if working with a local lawyer or if called into the state by a client, an out-of-state lawyer may engage in "investigative or other activities, including settlement negotiations," so long as the lawyer reasonably expects to be admitted pro hac vice – "even if no proceeding is filed or if admission pro hac vice is later denied."
Testimony of Daniel B. Magraw, Chair Section of International Law and Practice (February 1, 2001)
June 1, 2001 Follow-up Testimony
Responsive Testimony on Multi-Jurisdictional Practice Attorney Conduct Rules (June 29, 2001)
In testimony dated February 1, 2001, submitted at the MJP hearing in San Diego, the ABA Section of International Law and Practice (SILP), through its Transnational Legal Practice Committee, asks the Commission to advocate adoption of the ABA’s Model Rule for the Licensing of Legal Consultants by all states and to urge the ABA to devote necessary resources to this effort. SILP also urges the Commission to support efforts, such as under GATS, to create procedures for granting "transient professional visas" to international lawyers.
In supplemental testimony filed June 1, 2001, SILP offers a proposal that is identical to the "temporary presence" recommendation filed by the Association of Professional Responsibility Lawyers (APRL), except that it modifies the scope by replacing all references to "state" with "jurisdiction" so as to make clear that the rule would apply to lawyers practicing overseas. The SILP’ recommended amendments to the APRL proposal are italicized below:
"The prohibition on the unauthorized practice of law shall not apply to an attorney duly licensed and authorized to practice law in another jurisdiction while such attorney is temporarily in this jurisdiction and is engaged in either (i) a particular matter, or (ii) particular matters to the extent such matters arise out of or are otherwise reasonably related to the lawyer’s practice in such other jurisdiction.
‘Jurisdiction’ means any State, District or Territory of the United States of America or any foreign country having a recognized legal profession, the members of which are admitted to practice as attorneys or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a public authority."
As for "non-temporary" transnational multi-jurisdictional practice, SILP does not object to APRL’s "Greed Card" registration proposal, however, SILP opts instead to back adoption of the Model FLC Rule as a more modest approach.
In addition, SILP discusses various international multi-jurisdictional practice schemes and appends summaries of evolving rules on the integration of the legal profession within the European Union and other federal states such as Canada, Australia and Switzerland.
In a further refinement of its position, dated June 29, 2001, SILP’s Transnational Legal Practice Committee responds to questions raised by the Commission at its Miami Roundtable regarding international practitioners advising clients in the United States on a temporary basis:
As to choice of law questions, SILP recommends that foreign lawyers in the U.S. be treated in a manner comparable to the Ethics 2000 Commission’s Proposed Rule 8.5 unless contravening international treaty, agreement or law otherwise applies.
SILP endorses an approach similar to that of the Ethics 2000 Commission and appends a letter to the E2000 Commission, wherein it recommended that Rule 8.5 apply to lawyers engaged in transnational practice. At SILP’s urging, the Ethics 2000 Commission has recommended that Comment 7 to Proposed Rule 8.5 be amended to read:
 The choice of law provision in Rule 8.5 applies to lawyers engaged in transnational practice, unless international law, treaties of other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise. Choice of law in this context should be the subject of agreements between jurisdictions or of appropriate international law.
SILP would also interpret the term "lawyer" in Proposed Model Rule 8.5 to include foreign lawyers who practice in the U.S. on a transitory basis.
With regard to enforcement of disciplinary rules, SILP suggests "the Host Jurisdiction’s rules should be enforced against a foreign lawyer in the same manner in which these rules would be enforced against a U.S. lawyer who only practices in the Host Jurisdiction on a transient basis and is neither registered nor licensed in the Host Jurisdiction."
In a letter dated November 7, 2001, the ABA Section of Law Practice Management advised the MJP Commission of the Section’s vote to endorse what has been called the "Common Sense Proposal" proposed by the American Corporate Counsel Association (ACCA), The Association of Professional Responsibility Lawyers (APRL) and The National Organization of Bar Counsel (NOBC). The essence of this proposal is to authorize multijurisdictional practice with appropriate exceptions rather than using a "safe harbors" approach.
For the latest version of the "Common Sense Proposal," see
LAW STUDENT DIVISION, ABA
On August 3, 2001, the ABA Law Student Division adopted a resolution supporting the liberalization of laws regulating multijurisdictional practice. The Division recommends that the MJP Commission take the following action:
declare in principle that existing rule regulating extra-jurisdictional practice of lawyers are unacceptable and formulate reforms;
endorse the three broad goals in the March 2000 ABA Symposium on the Multijurisdictional Practice of Law: uniformity, clarity, and liberalization of restrictions;
encourage host states to modify admission rules and procedures to accommodate lawyers licensed in other jurisdictions to work in legal services organizations in the host state;
encourage states to form compacts providing for reciprocal licensure.
In a draft document The Law Society of England and Wales (comprised of over 80,000 solicitors) offers its experience of MJP in the United Kingdom and as part of the European Union. The UK does not register or regulate foreign lawyers because provision of legal services has traditionally been open in the UK. Anyone may offer advice on English law; only the titles of "solicitor" or "barrister" and activities such as conveyancing, probate and litigation are reserved to lawyers. (Recent changes in this approach have included registration and regulation of certain foreign lawyers in multi-national partnerships with UK lawyers and obligatory registration of EU lawyers established in the UK.) The Law Society concludes from its experience that "free movement of lawyers brings few problems ... on the contrary it brings many benefits."
Three EU directives provide for a single market for legal services throughout the 15 Member States of the EU as follows:
(1) Under the Services Directive (77/249)(1977), which applies to temporary provision of cross-border services, a Member State can require affiliation with a local lawyer in the host court. (The European Court of Justice has ruled that this means only that the lawyer must be introduced to the court by the host lawyer, not that the host lawyer must participate in the proceedings.)
(2) Under the Mutual Recognition of Diplomas Directive (89/48) (1989), lawyers can acquire the professional title of lawyer in another Member State by passing an aptitude test on those aspects of law in another Member State that are different and unique. (This has since been changed by the Establishment Directive to permit automatic integration into the host title after a lawyer has practiced host law for three years.)
(3) Under the Establishment Directive (98/5)(1998), an obligatory registration for EU lawyers was introduced. By this directive, lawyers from one Member State may establish themselves permanently in another Member State under home title. Lawyers may be required to appear before the courts in conjunction with a local lawyer. (In the UK, conveyancing and probate are still excluded.) "Double deontology" applies, which means that established lawyers are subject to both home and host professional rules. The primary rule of the directive is that "host state rules," meaning that the professional rules of the local bar will govern transactions conducted within the jurisdiction.
Initial problems currently being resolved include recognition of professional indemnity insurance, compulsory payments to host bars, compulsory continuing education schemes, and the difference scope of practice of lawyers in Member States.
The ABA Standing Committee on Legal Assistance for Military Personnel urges the Commission to encourage states to recognize expressly that lawyers who give legal assistance to military personnel in any state pursuant to 10 U.S.C. sec 1044 are not engaged in the unauthorized practice of law.
The ABA Section of Legal Education and Admissions to the Bar presents a resolution that urges the Commission to maintain a national system of accreditation of law schools, admission standards designed and enforced to ensure competent and ethical representation such as are currently established by the states’ highest courts, continuing legal education standards and procedures, and appropriate disciplinary criteria and enforcement mechanisms.
In supplemental comments, the Section reiterates the importance of two fundamental principles: recognition of the primary role of state supreme courts in licensing and disciplining lawyers, and graduation from an ABA–approved law school as a condition of admission to practice. The Section endorses the Ethics 2000 Commission’s modifications of Model Rules 5.5 and 8.5 as fully consistent with these fundamental principles.
The Section recommends promulgation of a Model Motion Rule, prepared by its Bar Admissions Committee, as an easy first step to a national standard. The Model Motion Rule provides for admission on motion, in lieu of an exam, with the standardization of the following "indicia of competence":
Home state admission by bar examination;
ABA approved degree;
Durational requirement (applicant must have practiced five of the past seven years);
Passing score on the Multi-state Professional Responsibility Examination;
Good standing/ No discipline pending;
Character and fitness investigation and certification;
Designation of Clerk of Courts for Service of Process;
Active practice requirement (including private practice, government service, teaching law in an accredited law school, judge in court of record, judicial law clerk, corporate counsel);
Prohibition against using unauthorized practice of law toward the practice experience requirement;
Disqualification of applicants who fail the bar exam (within five years) in the state in which the applicant seeks admission on motion. (This provision is designed to prevent an applicant from curing a failing bar exam score by practicing for years in a state that has a lower passing score or less difficult exam.)
An attached memorandum explains that the rule does not include reciprocity or a local office requirement. The memo notes that the Model Motion Rule is similar to rules already working effectively in many states, provides for public protection through its character and fitness and practice experience requirements, and is ready for adoption because it is written in a format that is consistent with many bar admission rules.
Preliminary Position Report
Model Rule on Pro Hac Vice Admission ( http://www.abanet.org/cpr/mjp/mjp-comm_seclit.doc)
In a preliminary position statement, the American Bar Association Section of Litigation disapproves of a national license to practice law. It does endorse the UPL safe harbors of the Restatement §3 and proposed Model Rules 5.5 and 8.5 promulgated by the Ethics 2000 Commission. The Section would also allow:
lawyers to represent pre-existing clients in ADR proceedings and in preparation for such (though the Section would not oppose a more limited approach in court-annexed ADR proceedings whereby courts impose pro hac vice requirements);
in-house counsel to advise their employers nationwide in connection with all ADR proceedings and all aspects pending litigation and pre- and post litigation functions;
litigators to engage in MJP in pending litigation through pro hac vice admissions by court order (the Section prefers a more uniform pro hac vice procedure);
specific safe harbors for all litigators and in-house lawyers in pre-litigation and extra-litigation matters such as investigations, compliance reviews, witness interviews, document examination, claims assessment, defense and damage analysis, and alternative dispute resolution procedures such as direct negotiation, settlements, mediation and arbitration.
The Section appends a summary of MJP survey responses and its own Model Rule on Pro Hac Vice Admission.
In a supplemental submission, the Section offers the latest draft of the Model Rule on Pro Hac Vice Admission, dated 8/20/01, which incorporates changes suggested by Bill Barker on behalf of IADC and TIPS.
The LACBA offered to the Ethics 2000 Commission the following commentary addition to Rule 5.5 to deal with the problem of a lawyer whose home state has adopted the proposed amendments to Rule 5.5 but who wishes to take advantage of them in a state that has not adopted these amendments. The addition also calls attention to jurisdictions, such as California, where UPL is based on statute rather than on rules of professional conduct:
" Rule 5.5 addresses only whether a lawyer may be subject to discipline [in] his or her home jurisdiction for practicing law in another state. Out-of-state conduct subject to a "safe harbor" under the rules of the jurisdiction in which the lawyer is admitted may nonetheless subject the lawyer to liability in the foreign state. Moreover, in seeking to determine whether a foreign state has adopted a "safe harbor," the lawyer should look not only to that state’s ethical rules but to other sources of law that might govern unauthorized practice of law and other sources of law in that jurisdiction."
The Louisiana State Bar Association’s Special Committee on Multi-jurisdictional Practice submits a preliminary report in which it opposed any national licensing process, national motion admission or the adoption of state rules that would entitle a lawyer admitted in any state to practice law in any other state. The LSBA’s opposition to such schemes permitting "the unbridled practice of law" in Louisiana is based, in part, on the fact that as a civil law jurisdiction, Louisiana’s laws differ considerably from those of other states.
LSBA does favor amending the Louisiana UPL statute to narrow its scope or to provide for a list of exceptions to accommodate permissible MJP. Proposals are currently being developed for an exception for in-house counsel upon registration and subject to certain requirements, for temporary practice in both transaction and litigation matters so long as there are clear prohibitions against practice on a permanent basis, and to require that lawyers engaged in MJP be subject to disciplinary rules in the Louisiana.
LSBA’s concerns are detailed in comments to the Ethics 2000 Commission regarding amendments to Model Rule 5.5 and 8.5:
5.5(b) should include the clause, " which recognizes and gives full faith and credit to Louisiana disciplinary rulings."
5.5(b)(1) should include the clause, " provided that he has associated with local counsel."
5.5(b)(2)(i) should specify that the matter must be the employer’s matter;
5.5(b)(2)(ii) should include a reference to a particular matter and to temporary practice;
8.5 (a) should include provisions addressing reciprocity, or full faith and credit and temporary practice.
In a preliminary report, dated June 13, 2001, the Maritime Law Association recommends adoption of the following safe harbors:
"acting in a matter in a host state where the non-resident lawyer is admitted to practice, regardless of whether or not the lawyer resides, or maintains an office, in that state;
preparing for a proceeding or action in the host state where the lawyer is or expects to be admitted pro hac vice;
acting in a matter in the host state in which the lawyer has retained, or has been associated with, local counsel;
acting in the host state on behalf of a client of which the lawyer is an employee or on behalf of the other employees of the client/employer;
acting on behalf of a client in a host state in conducting discovery or investigation in connection with a proceeding (judicial or ADR) in the lawyer’s home state;
participating in ADR (arbitration, mediation, etc.) in a host state when the parties have agreed or are required (e.g. by contract) to conduct ADR and the matter does not involve exclusively the application of the law of the host state;
acting in a matter in the host state involving a specialized area of substantive law having national or international application."
The Minnesota Board of Law Examiners is in favor of maintaining a state-based admission process accountable to state supreme courts and also advocates for a rigorous character and fitness component of admission qualification and the requirement of an ABA accredited law degree. The Board supports the Ethics 2000 Model Rule amendments on safe harbors to permit temporary practice and on reciprocal discipline, but also recommends liberal admission on motion provisions to address MJP problems.
Minnesota is currently one of 27 states that permit admission of licensed lawyers from other states without further testing. In Minnesota the applicant must have practiced five of the past seven years, graduated from an ABA accredited law school, and designated the Clerk of the Court in Minnesota as agent for service of process. In addition, Minnesota is one of a few states that provides for admission of applicants who have a scaled score of 145 or higher on the Multi-state Bar Exam.
The Missouri Bar supports the Ethics 2000 Commission’s approach of creating safe harbors for multi-jurisdictional practice. The Missouri Bar’s Multi-jurisdictional Practice Committee offers a Proposed Rule on Unauthorized Practice of Law that generally tracks the Ethics 2000 Commission amendments, but modifies an apparent ambiguity in proposed Model Rule 5.5 (b)(2)(ii) by eliminating the language requiring either that the "matter" be in a jurisdiction in which the lawyer is licensed or that the "client" be in such a jurisdiction.
In an attached report, Missouri’s MJP Committee characterizes its recommendation as a "limited" approach that "addresses the most serious problems in a way that preserves local licensure, regulation and oversight." The Committee notes that its proposed rule is not recommended to the Missouri Supreme Court for adoption absent other jurisdictions adopting the same rule; otherwise Missouri lawyers would be disadvantaged. The Committee declines to address issues of international legal practice, internet legal practice, or constitutional questions of free speech, due process, equal protection or interstate commerce that may arise in the MJP debate.
MOSER, M. PETER
In a memorandum to the MJP Commission dated October 4, 2000, M. Peter Moser discusses the question of whether the Commission should recommend model statutes and court rules to regulate the practice of law by out-of-state lawyers and appends pertinent statutes and rules from Maryland, a state whose regime he characterizes as "relatively extensive and probably typical." These statutes and rules have to do with disciplinary jurisdiction, standard admissions, lawyers admitted in other states, special admission ( pro hac vice), and in-house corporate or legal aid counsel. Using these examples, Moser poses questions raised by MJP Symposium participants that the Commission might consider in developing models:
Whether a lawyer admitted in another jurisdiction should be subject to "attorney examination" or allowed to "waive in;"
Whether a J.D. from an ABA-accredited law school should be required;
Whether service as in-house corporate counsel constitutes the practice of law in qualifying for "attorney examination" or "wave in;"
Whether a model statute should restrict the number of pro hac vice admissions, articulate standards for granting pro hac vice admission, specify types of appearances (court trials, administrative agency appearances, arbitration, meditation, other), or require participation of a locally admitted lawyer;
Whether and to what extent temporary or transactional practice should be authorized by statute or rule;
Whether electronic practice from outside a jurisdiction can or should be regulated; and
How lawyers admitted in non-U.S. jurisdictions should be regulated in their practice within the U.S.
MUNNEKE, PROFESSOR GARY A.
Professor Munneke at Pace Law School in White Plains, New York, does not offer specific proposals on MJP but urges the Commission to deal with two larger questions: the future of the legal profession and the political landscape of the ABA.
According to Professor Munneke, future trends affecting the legal profession include globalization, demographic shifts, changing values, competition, technology, and dispute resolution. Emerging law practice has these attributes: clients rule, deregulation reigns, new skills and specialization are required, innovation trumps incremental change, and practice across geographic and professional lines already exists.
Professor Munneke also suggests the Commission look to the experience of the Multidisciplinary Practice Commission. In his opinion, the MDP Commission failed in listening to practicing lawyers, communicating the benefits of MDP to ABA members, debating the core values, and lining up necessary votes.
The National Client Protection Organization does not take a position on MJP; rather its concern is that the Commission address the interrelationship of MJP and client protection in any formal MJP system. Because eligibility for reimbursement from a state’s client protection fund is based on the licensing jurisdiction of the lawyer rather than the residency of a claimant, problems for clients may arise when defalcating lawyers practice in jurisdictions where they are not licensed and have not contributed to client protection funds. State funds may interpret their rules strictly, leaving clients in a "Catch 22" situation where neither host nor home jurisdiction pays a claim.
One solution is to require lawyers practicing under MJP rules to contribute to the law client protection fund of each jurisdiction in which they practice. NCPO cites New Jersey as an example of a jurisdiction experimenting with this approach by requiring all lawyers appearing pro hac vice to contribute to its fund.
The problem of wide variation in reimbursement limits among jurisdictions may be addressed with reference to Canada’s experience. NCPO cites Canada’s Inter-Provincial Protocol wherein a claimant looks first to the lawyer’s home province and then, if the claimant receives less than he/she would have from the host province, a national excess fund pays the difference.
In comments to the Ethics 2000 Commission, NOBC supports the creation of "safe harbors," but suggests the following addition to Model Rule 5.5 (b)(2)(iii):
(iii) The lawyer is associated in a particular matter with a lawyer admitted to practice in this jurisdiction, who becomes and remains active in the particular matter and who assumes joint responsibility in the particular matter."
NOBC agrees that the non-admitted lawyer should be subject to the disciplinary authority of the host jurisdiction, but warns that the rule lacks an effective enforcement mechanism. To cure this problem, NOBC suggests the following language for Model Rule 8.5:
(a) Disciplinary Authority
(1) A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs.
(2) If a lawyer admitted in this jurisdiction engages in the practice of law in a jurisdiction where the lawyer is not admitted, the lawyer shall become subject to the authority of that jurisdiction and in the event of a disciplinary proceeding this jurisdiction shall give full faith and credit to its results.
(3) A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer renders or offers to render any legal services in this jurisdiction.
(4) A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
(5) By engaging in the practice of law in this jurisdiction, a non-admitted lawyer consents to the home jurisdiction granting full faith and credit to the results of any disciplinary proceeding in this jurisdiction. By engaging in the practice of law in this jurisdiction, a non-admitted lawyer requests the home jurisdiction to grant full faith and credit to the results of any disciplinary proceeding in this jurisdiction.
On September 25, 2001, in conjunction with ACCA and APRL, NOBC submitted a joint proposal entitled A Common Sense Proposal for Multijurisdictional Practice in which these organizations set forth a uniform rule intended to simplify the resolution of MJP issues and serve as an alternative to the "safe harbor" recommendation for dealing with multijurisdictional practice. The essence of this approach, as stated in the preamble to the proposed rule, is "to authorize multijurisdictional practice, making appropriate exceptions and providing appropriate protections for the public and the profession, rather than forcing lawyers through the sieve of unauthorized practice rule and numerous ‘safe harbors’." The rule extends to lawyers whose work is limited to serving as in-house counsel for a single client, provided the entity/client gives informed consent. The proposed rule excepts from "authorized multijurisdictional practice of law" a lawyer licensed out-of-state who "has established a place for the regular practice of law in the State…." The rule provides that lawyers appearing "in any court or record or before any administrative hearing officer" must comply with rules on pro hac vice admission. In addition, the proposed uniform rule provides that any attorney who engages in multijurisdictional practice of law, authorized or not, is subject to the disciplinary rules of the jurisdiction adopting the rule.
The Nebraska State Bar rejects national licensing and an open reciprocity system and, instead, offers Proposed Model Rule 5.5 revisions as follows:
Model Rule 5.5(b)(1) Comment  should state, "Paragraph (a) prohibits a non-licensed attorney in this jurisdiction from regularly practicing law in this state." This is necessary to "prevent the exception from swallowing the rule." In addition, Comment  should include language to clarify that pre-filing activities are also protected.
Model Rule 5.5(b)(2) Comment  should clarify the scope of the Rule and assure that litigation matters are included.
Proposed safe harbors do not adequately address federal law practice, therefore a further Comment to Model Rule 5.5, essentially tracking Nebraska’s Rule of Professional Conduct EC 3-9, should be added. In addition, a new section (b)(2)(iv) should be added to read "the lawyer acts with respect to a matter that concerns federal law or regulations only and does not concern or involve application of state law or regulation." A supplemental Comment should state "Paragraph (b)(2)(iv) recognizes that some legal issues may be federal questions only, such as federal income tax, patents, and copyrights. Subject to any specialized license required by federal law, a lawyer may represent a client in such federal matters without being admitted to practice in the jurisdiction. However, once the representation expands beyond the federal issue to include state or local issues, the lawyer would not be protected by this safe harbor."
A mirror image provision, as a new subparagraph (b)(3), should be added: "The provisions of this paragraph (b) shall apply only when the lawyer who seeks to avail himself or herself of its protection is admitted to practice in a jurisdiction that has adopted a rule that is the same or substantially similar to this paragraph (b)."
A new subparagraph (c) should be added to provide that "a lawyer admitted to practice in this jurisdiction will not be deemed to have engaged in the unauthorized practice of law in another jurisdiction when..."(followed by a list of safe harbors). This avoids the anomalous effect of Nebraska permitting lawyers from other jurisdictions to engage in enumerated activities while subjecting to Nebraska discipline upon Nebraska lawyers who engage in the same activities in states without the safe harbor provisions.
The full text of revisions accompanies the report.
In preliminary written comments submitted June 21, 2001, the Nevada's State Bar Commission on MJP urges additional input on MJP from bar associations, lawyers and state supreme courts. The Commission opposes the "green card" approach of national licensure. It suggests changes to Model Rule 5.5 that would expand pro hac vice to include pre-litigation arbitrations, mediations, and administrative agencies and provide for an increase in fees or malpractice insurance requirements in connection with such appearances. In addition, the State Bar Commission would limit the safe harbor exceptions to appearances that are "merely incidental to an attorney’s representation of a client in another state." It would also include elements that already exist in interstate compacts such as requirements of a minimum number of years in practice or an intensive continuing legal education course on the new state’s laws and procedures.
In November, 2001, the Supreme Court of Nevada’s Commission on Multijurisdictional Practice (a Commission that supersedes the State Bar's Commission) issued a report recommending adoption of a modified version of ABA Model Rule 5.5, including the following provisions:
(1) Lawyers practicing law in Nevada shall not violate Nevada’s lawyer regulation rules;
(2) Investigation and discovery in Nevada incident to a case in an out-of-state attorney’s home state is expressly permitted;
(3) Admissions pro hac vice shall continue;
(4) Safe harbors exist for occasional work performed in non-litigation matters on behalf of a client incident to work in a lawyer’s home state, occasional association with Nevada counsel, and for those serving in alternative dispute resolution matters.
In addition, Nevada’s MJP Commission recommends the following along with implementing amendments to current rules:
- Pro hac vice admission shall extend to practice before governmental agencies and court-annexed or statutorily required mediations and arbitrations; (the number of pro hac vice admissions shall be limited to five within a three year period, except upon good cause shown; an affiliated Nevada lawyer must remain responsible for rule compliance).
- Out-of-state lawyers practicing transactional law outside the safe harbors in modified Model Rule 5.5 must register with the State Bar and pay a fee, associate with local counsel, and be subject to Nevada’s disciplinary rules;
- In-house or governmental counsel shall be admitted for limited purposes but must show evidence of good standing in another state annually, register with the Nevada State Bar, pay an annual fee, fulfill continuing legal education requirements, and be subject to discipline by the State Bar. In addition, such lawyers may not appear in the courts of the state, render legal advice to anyone other than their employers, or maintain their limited admission eligibility upon termination of employment by the government or a corporation;
- Legal service attorneys in good standing in another state shall be admitted for unlimited duration while they work for a non-profit legal services organization provided that they submit to character and fitness admission requirements, pay annual bar dues, fulfill continuing legal education requirements, and work under the supervision of a Nevada lawyer;
- Law firms based in another state but doing business in Nevada must register as a firm with the Nevada State Bar, list and identify jurisdictional limitations of all lawyers employed by the firm, pay an annual fee, maintain a permanent office in Nevada with a principal or shareholder of the firm designated as agent for service of process, disclose to clients what services will be performed by out-of-state lawyers, maintain trust accounts in accordance with Nevada rules, and comply with Nevada’s amended rule on firm names and letterhead (a modified version of ABA Model Rule 7.5);
- All out-of-state lawyers practicing law in Nevada must contribute to Nevada’s Client Security Fund; advertisements by out-of-state lawyers must disclose jurisdictional limitations; and
- Admission to practice law in Nevada shall continue to be predicated upon passing the Nevada bar examination, subject to the exceptions listed above.
Preliminary Report and Recommendations
In its preliminary report, the New Jersey State Bar Association’s Committee on MJP opposes the "drivers license" and the "green card" approach, opting instead for a more detailed amendment to Model Rule 5.5, especially as regards transactional practice. Specifically, the amendment provides the following:
lawyers engaged in pre-litigation activity in anticipation of pro hac vice admission must associate with local counsel;
compensation of in-house counsel must come entirely from the employer and the in-house counsel may not provide legal services to others;
a much more restrictive and detailed safe harbor provision for transactional practice that requires a client in the jurisdiction of admission and an "occasional" representation standard, among other specifics;
a rule that permits only occasional association with local counsel and requires that local counsel assume overall responsibility for the representation;
additional provisions requiring good standing in a lawyer’s home jurisdiction, submission to the rules and disciplinary authority of the host jurisdiction, consent to appointment of the Clerk of the Supreme Court for service of process and a prohibition against holding oneself out as being admitted to practice in the host jurisdiction.
NEW MEXICO, STATE BAR OF
The State Bar of New Mexico’s Multijurisdictional Task Force submits a report with recommendations, adopted by the Board of Bar Commissioners on October 12, 2001.
As to concerns regarding lawyer licensing and regulation, the Task Force recommends establishing a standard score for the Multistate Bar Examination, accepting MBE scores from other states for a two-year period following another state’s examination, and working with other states on a procedure for the timely release of scores. Reciprocal admission should be available for lawyers licensed in a state offering reciprocity, provided that lawyers have practiced five out of the past seven years and otherwise satisfy admission requirements.
Regarding transactional practice, the Task Force recommends that the definition of UPL be changed to exclude transactional lawyers in good standing in another jurisdiction, except for advice on matters unique to New Mexico law. Local counsel should be retained for exclusively New Mexico legal issues.
With regard to litigation and administrative practice, the Task Force makes the following recommendations:
- Government lawyers working exclusively for the state, but not admitted in New Mexico should be treated as "in-house" counsel, thus must sit for the first bar exam for which they are eligible and must pass the exam as a condition of continued employment;
- In-house counsel residing in New Mexico and serving a singe business employer must register with the New Mexico Supreme Court, pay acceptable fees and be restricted from court appearances in addition to other limitations.
- A lawyer licensed in another state and conducting work within New Mexico for a client from another state on a non-New Mexico litigation matter should not fall within New Mexico regulatory review;
- A lawyer licensed in another state who provides advice on a New Mexico matter must obtain pro hac vice admission, associate with local counsel, pay an acceptable fee and become subject to discipline. Pro hac vice status should not be available to lawyers licensed in other states who reside in New Mexico, engage in more than two matters per year in New Mexico, or are not in good standing in any state.
NEW YORK COUNTY LAWYERS' ASSOCIATION ( NYCLA)
Though the New York County Lawyer’s Association advocates reform of the currently compartmentalized regulatory systems of the bar and supports efforts toward uniformity, it does not favor a nation-wide system of registration for lawyers. NYCLE generally supports the draft proposals of Model Rules with the following minor revisions:
definition of the terms "tribunal" and "jurisdiction;"
clarification regarding Model Rule 5.5 (b)(2) as to whether the safe harbor applies to partners as "employees" of a law firm and whether work on behalf of a client or a client’s affiliate in the firm’s office in another state or country constitutes acting on behalf of the "employer" firm;
clarification as to whether Model Rule 5.5(b)(2) "other than making appearances before a tribunal" language is intended to allow or block out pre-filing activities of litigators;
addition of two safe harbors; one for competent lawyers to advise clients on federal or international law and one for special circumstances where the public interest would be disserved by not allowing retention of out-of-state counsel; and.
modification of "any legal services" language in Model Rule 8.5(b)(2) so that disciplinary authority is invoked only when legal services are rendered on behalf of a client residing in or having a substantial presence in the state.
In addition, the NYCLE indicates textual revisions in the New York Judiciary Law and the New York Lawyer’s Code of Professional Responsibility necessary for implementing the policies of the Proposed Model Rules.
The Association of the Bar of the City of New York suggests the Commission study two proposed solutions to the MJP dilemma:
Green Card Plan
Under this proposal, in order to be eligible to practice in a state other than the ones in which she is licensed a lawyer must:
(1) have been admitted in another jurisdiction for three years;
(2) present a certificate of good standing;
(3) file statements of two sponsors attesting to the lawyer’s character and fitness; and
(4) pay an admissions fee.
Once admitted, a lawyer would be able to practice in the host state provided that he/she gives written notice to individual (but not corporate) clients of the lawyer’s status as a registered but not fully admitted lawyer. Moreover, the lawyer would be prohibited from handling certain matters without local affiliation, such as family law and real estate, and the lawyer would be required to renew the registration each year and present evidence that he/she remains in good standing.
Driver’s License Plan
This envisions a national compact under which a lawyer who has been admitted to practice in one state for three years can then practice in other states automatically—much as someone with a driver’s license can drive in other states without having to retake the driver’s exam. The governing rule would make clear that the lawyer subjects herself to the jurisdiction of the disciplinary authorities of any state in which she practices and that the lawyer would have to be admitted formally to any state in which she devotes more than 25 percent of her practice.
North Dakota’s State Board of Law Examiners raises the following concerns for the Commission to address:
the rights of the individual states to set minimum education requirements for the practice of law within the state (North Dakota requires graduation from an ABA accredited law school);
the need for each state supreme court to establish admission standards including character and fitness criteria;
acceptable standards for continuing legal education;
the need for each state supreme court to retain disciplinary authority over any lawyers who practice within the state.
On November 9, 2001, the Ohio State Bar Association adopted the report and recommendations of its Special Committee on Multijurisdictional Practice. Under these recommendations, a lawyer who practices law in Ohio, but is licensed elsewhere:
Shall be subject to the disciplinary rules of Ohio when representing a client in Ohio;
Shall consent to appointment of the Clerk of the Supreme Court of Ohio as agent for service of process for actions that may arise against the lawyer in Ohio;
Must be in good standing in the jurisdiction of licensure and may not hold himself or herself out as being admitted in Ohio;
May not open a law office in Ohio unless admitted to practice in Ohio;
May serve as in-house counsel in representing his or her employer except when pro hac vice admission is required;
May serve as a mediator or arbitrator;
May practice law temporarily with respect to existing clients in a particular matter or matters to the extent such matters arise out of or are reasonably related to the lawyer’s practice in another state;
May perform activities a nonlawyer could perform, activities involving expertise in federal law, and activities requiring application of another state’s law to an Ohio client.
In addition, the Committee recommends that Rule 5.5 of the Model Rules of the Professional Conduct proposed by the Ethics 2000 Commission be considered a safe harbor for a lawyer practicing outside his or her licensing jurisdiction.
July 17 Letter
Accord on Multijurisdictional Practice
Oklahoma Bar Association presents an Accord On Multijurisdictional Practice and informational report in an effort to reach consensus among the states. The Accord revamps the Ethics 2000 Commission’s Proposed Rule 5.5 and includes issues "that are not addressed or are addressed incorrectly in that rule." Thus, the rule permits lawyers admitted in one jurisdiction to engage in limited activities in another jurisdiction without separate admission as follows ( major differences italicized):
when authorized by an order before a tribunal or administrative agency;
when preparing for potential hearing in which the lawyer reasonably expects to be admitted before a tribunal or administration;
the lawyer is an employee of a client, representing that client or employees of that client, and the particular matter for the employer does not involve delivering legal service to third persons;
the lawyer is an employee of a governmental agency in performance of employment duties;
the lawyer is acting with respect to a matter arising out of or reasonably related to the lawyer’s representation of a client in the jurisdiction where admitted; or
the lawyer is associated with another lawyer in the state and the local lawyer provides substantive legal services in connection with the representation.
The Accord proposed that a lawyer be subject to the jurisdiction where the services are delivered as well as the lawyer’s home jurisdiction. The accompanying report explains that in the event of a conflict, the traditional conflict of law rules would apply based upon the predominant effect of the conduct.
OVERTON, GEORGE W. ( http://www.abanet.org/cpr/mjp/mjp-comm_goverton.doc)
George W. Overton offers comments entitled " Looking for the Future," wherein he urges the Commission to take a "fresh look" and engage in a "ground zero inventory" by listening to lawyers engaged in MJP, and to clients as well. He suggests that the Commission draw a blueprint for further research that targets consumers of legal services and utilizes experts in market research. He suspects that such research would reveal the existence of a national practice that requires supervision by a national entity.
The ABA Section of Public Utility, Communication and Transportation Law supports model rule that includes the following provisions:
a lawyer admitted in any state may advise clients on federal or non-U.S. law and incidental state law anywhere;
a lawyer in good standing, while temporarily in any state, may practice law provided the lawyer does not establish a permanent physical presence in that state;
a lawyer in good standing who is employed by a corporation, governmental or other organization may move to another state and continue to practice law for the entity, including making pro hac vice court appearance.
In addition to endorsing the changes to Model Rule 5.5 proposed by the Ethics 2000 Commission, the ABA Section of Real Property, Probate and Trust Law recommends amending the rules to make it clear that lawyers in good standing and admitted elsewhere may provide services:
with respect to transactions occurring in other states or involving the laws of another state, as long as the client has consented to such representation after having been informed in writing of the risks thereof;
in practice other than appearing before a tribunal, as long as (a) the lawyer does not hold himself or herself out as being admitted to practice in the jurisdiction, and (b) the lawyer is not based permanently in the jurisdiction; and
that could be rendered in that jurisdiction by a non-lawyer.
In a supplement, the Section supports the position taken by ACREL. The Section reiterates the importance of client choice of counsel and encourages the liberalization of existing rules given safeguards of the duty of competence and jurisdiction of host state disciplinary authorities to police out–of–state lawyers. The Section cites favorably Michigan’s UPL statute, which exempts services of lawyers "duly licensed and authorized to practice law in another state while temporarily in this state and engaged in a particular matter."
As for permanent presence in a host state, the Section concurs with others that a lawyer seeking permanent status in the host state must have practiced for at least 3 years in another jurisdiction, be a lawyer in good standing in the jurisdiction, and have at least two lawyers in host state attest to the lawyer’s competence and integrity.
In response to the notion that real estate, probate or trust law requires more local counsel involvement because these areas of law are more localized, the Section cites the trend toward national scope and increasing uniformity of practice in these areas.
In its November 26, 2001 letter, the ABA Section of Real Property, Probate and Trust Law informed the MJP Commission of its vote to endorse, with some exceptions, the "Common Sense Proposal" promulgated by the American Corporate Counsel Association, The Association of Professional Responsibility Lawyers and the National Organization for Bar Counsel. The Section endorsement is predicated on the assumption that the requirement in the proposal regarding lawyers being subject to the rules of a host state will not be interpreted to mean that a lawyer will be subject to "the on-going requirements of the host state to maintain a license in good standing" such as continuing legal education and trust fund requirements. In addition, the Section would amend the proposal to require a lawyer who is not admitted in a particular state to advise a client prior to undertaking representation when the representation involves the laws of that state.
Though in prior written submissions to the Commission the Section endorsed the expansion of Model Rule 5.5 safe harbors, in this letter the Section cites examples where rule revisions proposed by the Ethics 2000 Commission fail to recognize cross-border services that real property, probate and estate planning lawyers regularly provide. For example, language in the proposed rule permitting a lawyer to prepare for a proceeding in a host state if "the lawyer reasonably expects to be admitted pro hac vice," omits pre-litigation activity and alternative dispute proceedings that should also be protected from UPL sanction. In addition, the phrase "acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer’s representation of a client in a jurisdiction in which the lawyer is admitted" fails to account for the realities of transactional real estate law practice and for client mobility.
Section 3 of the Restatement of the Law Governing Lawyers (2000), states: "A lawyer currently admitted to practice in a jurisdiction may provide legal services to a client: ..."(3) at a place within a jurisdiction in which the lawyer is not admitted to the extent that the lawyer’s activities arise out of or are otherwise reasonably related to the lawyer’s practice [where the lawyer is admitted]."
Professor Larry E. Ribstein at George Mason University School of Law favors permitting multi-jurisdictional law firms to agree to application of a single state’s ethical rules that relate to law firm structure. Specifically, Professor Ribstein would add a section (c) to amend Model Rule 8.5 as follows:
"A firm may provide in its agreement for the application to the firm and its members of the rules of disciplinary conduct of a jurisdiction in which the firm maintains a branch office. This provision shall be enforced as to the matters covered in Rules 1.10, 5.1-5.7, and 7.1-7-6, provided that the firm gives notice of the applicable jurisdiction in its name and as otherwise required by the applicable jurisdiction."
Patricia B. Ross writes to the Commission to advocate for universal licensing to provide uniform guidelines and enforceability of ethics laws. She cites trends toward increased mobility and global practice and the concomitant need to reform current licensing procedures.
Jeffrey L. Russell, a lawyer whose work largely involves federal criminal defense, recommends multi-jurisdictional practice and universal reciprocity. He questions the validity of testing experienced attorneys on a subjective entry-level examination to determine qualification for admission. He cites his own experience of being denied access to California state courts, despite 16 years of experience as a federal prosecutor, because he is not admitted in California. He suggests that he is much more qualified to practice than someone who just completed law school and passed the California Bar Exam.
The ABA Senior Lawyers Division resolution, adopted April 12, 2001, recommends that the Commission declare in principle that the existing rules on extra jurisdictional practice are unacceptable and formulate reforms. The Division is particularly interested in the ability of elderly clients who move temporarily or permanently to another state to continue using the services of trusted lawyers who have advised them in the past but who may not do so under current rules.
The Division suggests the Commission endorse the three goals outlined in the MJP March 2000 ABA Symposium concerning uniformity, clarity, and liberalization of restrictions on the work of out of state lawyers. The Commission should also encourage host states to modify admission rules and procedures to accommodate lawyers in other jurisdictions to work in legal services organizations in the host state, following the lead of Arizona, California, Delaware, Florida, Georgia, Idaho, South Carolina, Texas and Washington. The Commission should also encourage states to follow Oregon, Washington and Idaho in forming reciprocal licensure compacts while retaining each state’s responsibility for oversight.
Professor Gregory C. Sisk of Drake University Law School recommends that safe harbors should be limited in terms of frequency and length of time to accommodate the "truly exceptional or irregular situation." Professor Sisk exhorts that the exception for in-house counsel proposed by the Ethics 2000 Commission should not be open-ended, for example. He also recommends that the propriety, scope, and duration of safe harbors exceptions appropriately may vary depending on the obstacles to licensing in that state. According to Professor Sisk, many MJP problems can be addressed by encouraging states simply to reduce barriers to regular admission. He cites, by way of example, the state of Iowa, which provides admission of experienced lawyers upon motion without demanding reciprocity with admission rules of other states.
SOLO AND SMALL FIRM PRACTITIONERS, ABA STANDING COMMITTEE ON
The ABA Standing Committee on Solo and Small Firm Practitioners notes that clients often retain solo and small firm lawyers in matters involving the law or parties from other states, that clients require their attorneys to act in multijurisdictional contexts, and that lawyers must cross state lines to represent adequately clients in dispute resolution matters. According to the Committee, clients are protected from inadequate or improper advice by enhanced access to local law and the current standard of competence.
The Committee urges that current UPL restrictions be changed to permit lawyers to practice temporarily in other states with their clients’ informed consent. The Committee supports the changes to Rule 5.5 proposed by the Ethics 2000 Commission, however, drawing on UPL exceptions adopted by Michigan and Virginia (and sought by the California Commission), the Committee suggests expansion of permissible activity for competent lawyers to include the following:
"services with respect to transactions occurring in other states or involving the laws of another state;
services (other than appearing before a tribunal) in a jurisdiction by the lawyer in good standing and admitted to practice elsewhere, as long as (a) the lawyer does not hold himself or herself out as being admitted to practice in the jurisdiction, and (b) the lawyer is not based permanently in the jurisdiction;
services in a jurisdiction by a lawyer in good standing and admitted to practice elsewhere that could be rendered in that jurisdiction [b]y a non-lawyer."
The ABA Standing Committee on Specialization notes that significant variations in certification of legal specialists throughout the states create a minefield for lawyers who cross state lines to practice and requests that lawyer specialty certification be considered in deliberations on MJP.
In a supplement, the Committee comments on three specific issues.
(1) Competence: specialist certification provides an additional means of determining whether an out-of-state lawyer is competent since a certified lawyer has demonstrated involvement in a practice area, passed an examination, taken continuing legal education courses and must regularly apply for re-certification.
(2) Safe Harbor Provisions: the Standing Committee supports a "Green Card" proposal where lawyers would register and likely pay a fee to a host state, but would add a specialty certification qualification track for certified specialists to practice in their area of expertise in a host state.
(3) Counsel of Choice: recognition of specialty certification of out-of-state lawyers would further the interest of the bar in protecting residents’ access to counsel of choice.
Mr. Stinson, President and General Counsel of the Center for Education Rights, notes that de facto practices developing as a result of the World Wide Web do not correlate with current state boundaries. He urges the Commission to encourage development of the following:
formal procedures for increased pro hac vice representation by out-of-state lawyers in litigation as well as in administrative hearings at the state and local level;
full reciprocity between states in bar admission criteria;
reciprocity in bar disciplinary proceedings for attorneys engaging in pro hac vice representation, and
Model Rules of Professional Conduct relating to internet-based activities and MJP.
TAXATION, ABA SECTION OF
The American Bar Association Section of Taxation submits that lawyers are engaging in multi-jurisdictional practice on a regular and continuous basis and a number of lawyers are engaged in specialties that do not recognize state borders. The Section voices its approval of the driver’s license analogy in the context of MJP. The Section is firmly in favor of a recognition that multi-jurisdictional practice exists and emphasizes "the need to reconcile the issues so that unauthorized practice of law is not used after the fact (i) to enable clients not to pay bills; (ii) to make claims against lawyers for malpractice per se because of unauthorized practice of law or (iii) to enable lawyers in one jurisdiction to prevent lawyers from another from practicing their specialty wherever their client requests."
TERRY, PROFESSOR LAUREL S.
Cover Memo to the Commission
Professor Terry of Penn State Dickinson School of Law prepared individual charts analyzing the MJP provisions in the European Union, GATS, NAFTA, the ABA-Brussels Agreement, the IBA FLC rule, the ABA FLC rule, the Canadian Interjurisdictional Practice Protocol, and a summary chart comparing all of these global MJP schemes. Professor Terry did not advocate that the ABA adopt a particular approach to MJP issues, but indicated that she thought it would be a mistake for the Commission to refuse to consider the experiences of other jurisdictions and entities that have grappled with MJP issues. She believes these schemes might suggest questions or answers that the Commission should consider. Moreover, the fact that other jurisdictions have adopted MJP schemes, apparently successfully, may alleviate some of the concerns that have been expressed about the effect of MJP on clients, regulators and the public interest.
TIPS is not opposed to the Proposed Model Rule amendments or other ambitious proposals for MJP; however TIPS cautions that controversy may impede adoption of such proposals. As a first step to broader reforms, TIPS backs IADC’s proposal regarding a model p ro hac vice rule, with one significant proviso: TIPS strongly believes that no admission of any sort should be required in the context of arbitration.
UNITED STATES ARMY ( http://www.abanet.org/cpr/mjp/mjp-comm_usarmy.doc)
Judge Advocate General
The Army strongly urges the Commission to include the Commission to include language providing a safe harbor for military attorneys and other government attorneys. Proposed changes are as follows:
amend Rule 5.5(b)(2)(i):
(2)(1) a lawyer who is an employee of a client or a government agency acts on the client’s or the agency’s behalf, or, in connection with the client’s or agency’s matters , on behalf of the client’s commonly owned organizational affiliates or an agency’s subordinate offices;
add a fifth safe harbor to Rule 5.5:
(2)(iv) the lawyers is (a) an Armed Forces Legal Assistance attorney providing legal services pursuant to 10 U.S.C. sec. 1044, et. seq. or (b) where he or she is a military defense attorney practicing in the field of criminal justice, nonjudicial punishment proceedings or administrative discharge proceedings.
In additional comments submitted 8/2/01, the Army reiterates its recommendation of a clear safe harbor provision for military and other government attorneys practicing outside their licensing jurisdictions. The Army adds that language in a comment to a rule is insufficient to meet their needs. A suggested alternative safe harbor could be "a government or military attorney in the execution of official duties."
UNITED STATES CHAMBER OF COMMERCE
The Chamber of Commerce of the Unites States of America voices concern regarding the impact of current practice rules on in-house counsel particularly and notes that these rules are "an attempt to apply 19 th Century regulation to 21 st Century practice." The Chamber has employees in most of the 50 states and its staff attorneys are called upon to advise those employees, in person and by electronic means.
The Chamber endorses the statement of the American Corporate Counsel Association and the model safe harbor endorsed by ACCA wherein at a minimum, employed counsel are exempt where they "(1) act on their employer-client’s behalf in nonlitigation context; (2) pursue "cross-border" legal matters for their employ[er]-client in a jurisdiction in which the lawyer is not admitted; or (3) associate with locally admitted counsel." The Chamber asserts that safe-harbors are not enough, however; only comprehensive reform on a national basis will solve the problem. The Chamber supports adoption of Ethics 2000 proposed Rule 5.5 as an interim step.
UNITED STATES NAVY ( http://www.abanet.org/cpr/mjp/mjp-comm_usn.pdf)
The United States Navy Judge Advocate General’s Corps strongly urges the Commission to include an additional safe harbor for military attorneys by adding the following language to Rule 5.5 (b)(2):
"iv) the lawyer is an Armed Forces Legal Assistance attorney providing legal services pursuant to 10 U.S.C. §1044, et seq."
Military multi-jurisdictional practice is distinguished from commercial civilian practice because the navy legal assistance program is administered and supervised by the Secretary of the Navy and the Judge Advocate General under Title 10 of the U.S. Code, legal assistance lawyers are trained extensively in the Naval Justice School, and military lawyers assist a substantial number of clients who are not domiciliaries of the states in which they perform their military duties. Some states, such as Virginia, are considering permitting legal assistance lawyers to practice regardless of their licensure in Virginia, however, other jurisdictions are much more restrictive. Thus, the safe harbor language is necessary to provide military lawyers with additional professional security.
10 USC §1044 provides:
"(a) Subject to the availability of legal staff resources, the Secretary concerned may provide legal assistance in connection with their personal civil legal affairs to the following persons:
(1) Members of the armed forces who are on active duty.
(2) Members and former members entitled to retired or retainer pay or equivalent pay.
(3) Officers of the commissioned corps of the Public Health Service who are on active duty or entitled to retired or equivalent pay.
(4) Members of reserve components not covered by paragraph (1) or (2) following release from active duty under a call or order to active duty for more than 30 days issued under a mobilization authority (as determined by the Secretary of Defense), for a period of time, prescribed by the Secretary of Defense, that begins on the date of the release and is not less than twice the length of the period served on active duty under that call or order to active duty.
(5) Dependents of members and former members described in paragraphs (1), (2), (3), and (4).
(b) Under such regulations as may be prescribed by the Secretary concerned, the Judge Advocate General (as defined in section 801(1) of this title) under the jurisdiction of the Secretary is responsible for the establishment and supervision of legal assistance programs under this section.
(c) This section does not authorize legal counsel to be provided to represent a member or former member of the uniformed services described in subsection (a), or the dependent of such a member or former member, in a legal proceeding if the member or former member can afford legal fees for such representation without undue hardship.
(d) The Secretary concerned shall define "dependent" for the purposes of this section."
WASHINGTON STATE BAR ASSOCIATION
The Washington State Bar Association submits the Report of the Future of the Legal Profession Study Group, not yet formally approved or adopted by the Board of Governors. As regards MJP, the Study group is supportive of changing current regulations and recommends rule amendments, which have been referred to the WSBA RPC Committee.
The Study Group supports the changes to Model Rules 5.5 and 8.5 proposed by the Ethics 2000 Commission and also proposes the following addition to their Admission to Practice Rules:
"An attorney duly licensed and authorized to practice law in another state, territory or the District of Columbia, is authorized to practice law in the State of Washington while such attorney is temporarily in this state and is engaged in either a particular matter or particular matters to the extent such matters arise out of or are otherwise reasonably related to the lawyer’s practice in such other state, territory or the District of Columbia.
In addition, the Study Group sets out these proposals for additional safe harbors that will allow a lawyer admitted in another jurisdiction to do the following:
act in a jurisdiction in which he or she is not admitted, provided that the lawyer is not permanently based in the jurisdiction in which he or she is not admitted, does not hold himself or herself out as admitted where he or she is not, and is acting with respect to a matter that arises out of or is reasonably related to the lawyer’s practice in the jurisdiction where he or she is admitted;
act with respect to a matter involving issues of federal law or the law of one or more other domestic or foreign jurisdictions, provided that the lawyer is not permanently based in the jurisdiction in which he or she is not admitted and does not hold himself or herself out as admitted where he or she is not.
provide services that would not constitute UPL if performed by a non-lawyer in the jurisdiction in which the lawyer is not admitted;
provide services in connection with factual investigation or other work in preparation for or anticipation of litigation, arbitration, mediation or other dispute resolution process, regardless of where such process may be initiated or whether it is ever in fact initiated;
provide services in connection with arbitration, mediation or other dispute resolution process.
The Study Group adds that the addition of the proposed amendments would not give greater rights to non-Washington State lawyers than to Washington State lawyers, while practicing in Washington.
The State Bar of Wisconsin endorses in principle the Ethics 2000 Commission’s safe harbor amendments to Model Rules 5.5. In addition, the State Bar backs the Proposed Model Motion Admission Rule adopted by the Bar Admissions Committee of the ABA Section of Legal Education and Admissions to the Bar, subject to an amendment to allow reciprocal credit for Wisconsin’s diploma privilege.
In a preliminary statement, the Young Lawyers’ Division of the ABA brings the following issues to the table:
How do we best serve the interests of our clients?
Should different standards regarding MJP apply for different types of legal services?
Is MJP a national or a global issue?
In a "Preliminary Report" on MJP, the YLD Special Committee on the Future of the Legal Profession submits results of the Subcommittee’s survey of YLD members in May, 2001. (A copy of survey results is appended.)
With regard to legal education, the YLD recommends that the ABA mandate MJP and UPL be incorporated into professional responsibility classroom training in all accredited law schools. In addition, YLD urges a formal recommendation to expand the scope of conflicts of law/choice of law education in existing curriculum.
YLD asks whether the bar admissions process needs to be revised in light of the growth of MJP. YLD cites to their survey results in discussing the following issues that are of concern to YLD members:
varied bar admission requirements;
requirements for limited purpose practice in a foreign state;
residency and office requirements;
local rules of practice and procedure.