American Bar Association Study Of Multistate Practice Is On Fast Track

By: Harriet E. Miers, Chair
American Bar Association Commission on Multijurisdictional Practice

When is the last time you took -- or defended -- a deposition in another state? Have you ever traveled to another state to consult with and advise someone who works for a subsidiary of your client? How often have you called out of state to negotiate on behalf of a client? If you work for a corporation, do you travel to states in which you are not licensed in order to do your work?

When you did any of these things, were you thinking about the unauthorized practice of law? Probably not. Were you committing the unauthorized practice of law (UPL)? Some would say a resounding and concerned "Yes". At least technically speaking. At least in some states. Which states? It's hard to know.

But even if you were guilty of a technical violation, do you think you were you doing something improper, or do you think you were performing work you should be able to perform in order to serve your clients' legal needs?

Traditionally, lawyers in the United States may practice law only in the states in which they are licensed, a restriction typically backed up by UPL provisions which, although sporadically invoked, may be enforced by fee forfeiture, disqualification, professional discipline, and even, in some jurisdictions, criminal conviction. The sanction most frequently invoked is probably fee forfeiture arising from an unhappy client's challenge.

A state's UPL restrictions are meant to protect its residents by ensuring that lawyers who represent them in the state are familiar with state law, procedures and ethics rules, and are subject to state disciplinary regulation. Many, but not all, lawyers believe that the changing nature of clients' legal needs, the changing nature of technology and communications, and, consequently, the changing nature of law practice in this country may make the old restrictions outmoded.

In August of 2000, ABA President Martha Barnett appointed an eleven-member Commission on Multijurisdictional Practice, which I Chair, to examine, and make recommendations on these issues. The new Commission began its work in September. It expects to issue a preliminary draft report in March 2001, and by May 23, 2001, to have completed a report with recommendations for consideration by the American Bar Association House of Delegates in August 2001.

This is a very fast track, and we know it. But there is really no time to waste. State legislatures are acting; other organizations, both public and private, are acting; and cases against lawyers involved in the kind of conduct described above are going forward. A national telephone seminar was sponsored by the Attorneys' Liability Assurance Society in December 1999 to discuss unauthorized practice and multijurisdictional practice issues that could affect its member law firms. That seminar attracted nearly 1,500 participants. The issue is ripe. If there is to be a consensus of any kind among the states and if the American Bar Association is to play a meaningful role in the debate, the American Bar Association needs to act, and act quickly.

The Commission is committed to undertaking an objective and comprehensive national study. To do so, it needs the participation of state and local bar associations, ABA entities, individual lawyers, clients and other interested parties across the country. If you are a practicing lawyer, or a client, or otherwise have views to offer, the Commission would like to learn about your experience and to receive your insight about the questions it will be addressing. It is important for the Commission to learn whether, and to what extent, lawyers are practicing across state lines, and whether lawyers believe there are preferable alternatives to existing restrictions on such practice.

So far, proposed alternatives that arose out of a March 2000 symposium at Fordham Law School range from doing nothing -- maintaining the status quo -- all the way to providing for national licensing of lawyers, with many suggestions in between those two alternatives. Intermediate proposals have included developing uniform state laws setting forth narrower and clearer restrictions on out-of-state practice, making it possible for out-of-state lawyers to receive permission to render a broader array of legal services in a particular state, and allowing more liberal admission of out-of-state lawyers for general purposes. A report on the symposium, together with other writings on this subject, may be found on the Commission's Web site, www.abanet.org/cpr/mjp-home.html.

The Commission does not now know the answers to all the questions raised, and needs to receive your views. Tell us: Are there really problems? If so, what problems are you encountering? Is multi-state law practice increasingly common? Is multi-state practice necessary if lawyers are to serve their clients effectively and efficiently? Should steps be taken with respect to practicing "internet law" or "telephone law"? If so, how (if at all) should the laws and ethical rules be reformed to better accommodate such practices?

The Commission will be holding public hearings around the country prior to March 2001, including ones on February 17 and 18, 2001 at the ABA Midyear Meeting in San Diego, and others in Atlanta, Chicago, Dallas and New York. The format of the hearings will include an educational segment designed to stimulate thought and dialogue. You are invited to attend one of the hearings and to provide us with written testimony. We will be providing more details about the hearings, including the dates and specific locations. This information will be posted on line at the Commission's Web site as soon as it is available.

To arrange to testify, please contact John A. Holtaway of the ABA Center for Professional Responsibility at 312/988-5298, or jholtaway@staff.abanet.org, or you may send written comments to him at the Center at 541 North Fairbanks Court, 14 th Floor, Chicago, Ill. 60611. There is also a List Serve available for those who wish to keep up to date on the issue. To subscribe, send an e-mail message to jholtaway@staff.abanet.org.

And finally, you are invited to contact any of the members of the Commission. A list of the members is also on the Web site.

We hope we will hear from you as we undertake this important work.