PRELIMINARY REPORT ON THE MULTI-JURISDICTIONAL
PRACTICE OF LAW
American Bar Association Young Lawyers Division
Special Committee on the Future of the Legal Profession
Subcommittee on the Multi-Jurisdictional Practice of Law
July 2, 2001
The ABA YLD Special Committee on the Future of the Legal Profession, Subcommittee on Multi-jurisdictional Practice of Law ("the Subcommittee") submits the following preliminary report. It addresses some of the issues raised in the Subcommittee's meetings, and the results of the Subcommittee's survey to American Bar Association's Young Lawyers Division ("YLD") members in May 2001. The contents of this report represent the Subcommittee's work in progress, and do not reflect official positions taken or sanctioned by the YLD.
The Subcommittee decided to focus its preliminary inquiry into the issues surrounding the Multi-jurisdictional practice of law ("MJP") on two areas of particular interest to young lawyers: legal education and the bar admissions process. The Subcommittee has, through its research, also identified several issues of concern that are unique to its membership, which were discussed in its report to the Commission submitted in connection with its comments at the Midyear Meeting in San Diego. The following report summarizes the Subcommittee's findings and conclusions to date.
THE SUBCOMMITTEE'S GENERAL FINDINGS
When the Subcommittee was charged with studying the ways in which MJP affects YLD members, it first began collecting anecdotal evidence. The Subcommittee discovered quickly that MJP is an issue that affects virtually all of our practices. YLD members who practice bankruptcy, corporate, real estate, litigation, and labor and employment law, to name a few, cross state lines (either in reality or in virtual reality) on behalf of clients on a regular basis without giving a moment's thought to whether or not they are engaging in the unauthorized practice of law in that jurisdiction. Similarly, the Subcommittee discovered that these individuals believe that crossing state lines to represent client interests is an increasingly necessary exercise. The Subcommittee also found that many of its members were not familiar with MJP issues, and were astounded to learn that occasional actions taken in one state to forward a transaction or a litigation matter based in another might constitute the unauthorized practice of law.
The Subcommittee's anecdotal research is confirmed by its recent study, undertaken at several meetings in April and May 2001. A copy of the results from that survey is attached as Exhibit A. While thirty-seven (37) of the fifty-two (52) survey participants are admitted to the bar in only one state, twenty-two (22) of the participants had practiced in the past three years in at least one state to which they were not admitted. (1) These participants practiced in a total of thirty-one states to which they were not admitted. (2) Though the Subcommittee's sample is small, the responses that it received typify the content of the discussions that its members have had with young attorneys over the past months.
TRAINING OF NEW LAWYERS
In examining the question of MJP, the Subcommittee was not surprised to discover the frequency at which young lawyers are confronting MJP issues. Of our survey of lawyers who have practiced for 11 years or less, approximately half of the respondents stated that they had addressed an MJP issue in their practice in the last year. (3) In addition, anecdotal reports from Subcommittee members, particularly those in larger practices, indicated that those practitioners who confront MJP issues do so quite frequently. MJP is hardly an academic issue anymore.
Unfortunately, many law schools fail to train young lawyers on MJP issues, or on the related topic of Conflict of Laws/Choice of Laws. Of the attorneys surveyed, only one third took a class on Conflict of Laws/Choice of Laws, although two thirds did state that they discussed this issue in some other class in law school. (4) Only three fifths of our respondents stated that they even discussed MJP in their law school education. (5)
Those surveyed were split on the value of adding a Conflicts of Law/Choice of Law class to the mandatory law school curriculum. (6) But those surveyed strongly supported the inclusion of MJP (and the Unauthorized Practice of Law ("UPL")) to law school ethics classes. (7)
The Subcommittee is in agreement with those surveyed regarding the need to train young lawyers on the issues of MJP and UPL. The Subcommittee believes that all lawyers in training must be sensitized to issues involving MJP and UPL while in law school. Regardless of how the ABA ultimately proposes to address MJP issues, young lawyers must be aware of when such issues are relevant to their legal work. Indeed, further training of young lawyers on MJP issues is likely to have a net effect on the general ability of the entire legal community to recognize MJP issues.
The Subcommittee recognizes that burdening law school and law students with more training requirements reduces time and energy that can be spent on other areas of legal study. In addition, imposing requirements on law schools to alter their curriculum ultimately mandates unnecessary uniformity in legal education. Nonetheless, the Subcommittee views the ability to recognize and address MJP issues will be critical to the practice of law for the next generation of lawyers.
Accordingly, the Subcommittee recommends that as part of its accreditation of law schools, the ABA mandate that the issues of MJP and UPL be incorporated into Professional Responsibility and/or Ethics classes already in existence in all accredited law schools to the extent that no such requirements already exist. Although MJP and UPL are not strictly questions of professional responsibility, the Subcommittee believes that training on issues of MJP is wholly compatible with professional responsibility classroom training. The Subcommittee would also urge a formal recommendation to expand the scope of conflict of laws/choice of law education in existing curricula.
THE BAR ADMISSIONS PROCESS
One of the issues raised by the growth of MJP is whether bar admissions processes should be revised to ensure that admittees are competent in the law of the states in which they practice. (8)
In that regard, the issue of the states' varied requirements for bar admission arises. Each state currently has its own independently-promulgated set of requirements for residency, continuing legal education, client protection fund contributions, bar associate membership and the like, above and beyond the requirements for the bar examination. (9) If MJP is embraced and approved, how can these varied requirements and policies be applied?
Uniform bar admissions requirements, individual state requirements or a hybrid. On initial analysis, three scenarios are contemplated: one where each state maintains its own bar examination and admission procedure/requirements, another where there is a multistate bar examination with a local component, and a third where there is a uniform bar examination. Under these scenarios, the states can still maintain their own requirements for admission separate and apart from the bar examination process. Indeed, the individual states and their attorney-governing bodies would argue that their sovereignty must be maintained over the attorneys whose practice they regulate. It is under this framework where the issue of conflicts in those procedures arises.
Limited purpose for practicing in the foreign state. If an attorney is required to gain bar admission in each state in which s/he will practice (as opposed to simply appearing in court), must he/she be required to comply with every aspect of that state's requirements, even when they become impractical or are used on a very limited basis? Put into a specific practical scenario, if an attorney is required to be admitted to a particular state solely for the purpose of taking a deposition, must s/he be required to have maintained residence there, taken a required number of local law CLE courses, contributed the usual amount to the client protection fund and join the bar association? One would argue that it is impractical to hold attorneys in such scenarios to the same level and degree of such requirements as an attorney who practices there full time.
Residency. In the Survey, a large majority of respondents practiced in firms with offices in only 1-3 states. For the solo practitioner, the requirement of maintaining an office in the state of admission can impose a financial and practical burden. The level of burden depends on the nature of the multistate practice, i.e., whether it is a one-time event or continued practice as a small percentage of one's business. One recent proposal to rectify this situation is the Philadelphia Bar Association's proposal for small firms to maintain one joint office, jointly staffed, to service clients in cases venued in New Jersey, as a means of complying with New Jersey's bona fide office requirement. This proposal has been opposed by New Jersey authorities because it raises concerns of confidentiality, among others. Our survey found that about half the attorneys would be significantly encouraged to seek additional bar admissions if residency and office requirements were relaxed (18 of 40 respondents). With regard to personal residence, it remains unknown how many bar associations require an attorney to maintain a personal residence in its state. It can be assumed that a majority would find it difficult practically and financially to meet such a requirement.
Fees. Each state usually has a requirement for payment to become admitted. In addition, many states require contribution to a client protection fund, while yet others have a requirement to join the state bar association (mandatory bar). Such fees can be a burden if required in full even for the rare instance of having to take or defend a deposition in a foreign state. One might consider a sliding scale, depending on the nature and frequency of the attorney's practice in the subject state. Our survey found that only a small number attorneys would be significantly discouraged from seeking additional bar admissions if the cost of bar fees could be reduced or adjusted, but it was a factor for about half the total survey respondents (20).
CLE requirements. Most, if not all states, have some requirement for their admitted attorneys to take a certain amount of continuing legal education (CLE). The requirements do vary by state, with some states requiring an initial course of study in the first few years of practice, and others requiring a certain number of course credits per year. These requirements often can be met concomitantly by taking an ABA sponsored course, or even a course in a neighboring state, where CLE credits have been approved by local bar-governing bodies. Internet and tele-courses are another means of permitting easy compliance with such requirements. However, these convenient means of meeting CLE credit requirements do not necessarily assure that the attorney will remain competent in the law of the jurisdiction at issue: often the courses are general in nature, and not specific to the law of particular state. This calls into question the usefulness of maintaining the CLE requirement for attorneys who seek to practice in a foreign state on a limited basis. Over all, less than half of our survey respondents considered this a factor in deciding whether or not to apply for additional bar admission, with the majority considering it a factor of low importance.
Local rules of practice and procedure. Another pertinent consideration in this area is the variance in local rules of practice and procedure, which are a most pertinent to the taking of an out of state deposition in the foregoing scenario. CLE requirements can seek to ensure that foreign attorneys know and can comply with local rules, assuming the requirement is effective. Local governing bodies might dictate when and to what extent those rules should apply. A scenario could be envisioned which requires the attorney taking the deposition to have local counsel present to ensure proper compliance and application of local rules of procedure at a deposition. This scenario was a factor for about half the total survey respondents in considering whether or not to take a second bar examination. On the other hand, there might be a universally accepted mandate as to which state's local rules apply (state of jurisdiction versus state of situs of the deposition), or that federal rules apply across the board.
The Subcommittee appreciates the opportunity to submit its preliminary findings to the Commission, and looks forward to reviewing the Commission's conclusions and recommendations when made available this fall.
1 Summary of Survey Results From Survey of American Bar Association Young Lawyers' Division Members April and May 2001 ("Survey"), questions 9 and 20.
2 Survey, question 21.
3 Survey, question 32.
4 Survey, questions 25 and 26.
5 Survey, question 29.
6 Survey, question 33.
7 Survey, question 33.
8 This is distinguished from pro hac vice admission, where the foreign lawyer usually is required to have local counsel supervising, monitoring and advising him/her to ensure compliance with local rules and competency in local law.
9 Another related concern is the differences in the rules governing attorney conduct, including the unauthorized practice of law. Some states have adopted the ABA Model Code in its entirety, while others have promulgated a set different from but modeled after the ABA Model Code. This issue is currently one aspect of the debate surrounding Ethics 2000. Furthermore, the pro hac vice admissions procedure usually requires the admitted attorney to adhere to the local bar's rules of conduct.