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Transcript of Proceedings Of The American Bar Association Commission On Multijurisdictional Practice, Kansas City - Center for Professional Responsibility

1 P R O C E E D I N G S

2 of the



5 FRIDAY, APRIL 27, 2001



8 ________


10 The Commission on Multijurisdictional

11 Practice 2000-2001 of the American Bar Association,

12 meeting at the University of Missouri in Kansas City, on

13 April 27, 2001, was called to order at 1:30 p.m. with Mr.

14 Anthony Jenkins presiding. The other members of the

15 Commission in attendance are:

16 Mr. Peter D. Ehrenhaft Mr. Larry Ramirez

17 Other individuals in attendance are:

18 Dean Powell Ms. Ginger Lamb

19 Ms. Jeanne P. Gray Mr. Dick Woods

20 Mr. John A. Holtaway Mr. Joe Whisler

21 Ms. Carol Needham Judge Waxse






1 MR. JENKINS: Good afternoon, everyone. My

2 name is Tony Jenkins. I am in private practice in

3 Detroit. With me on this far end of the table is

4 Larry Ramirez and Peter Ehrenhaft. We are members of

5 the Commission on Multijurisdictional Practice. This

6 is the fifth of a series of workshops -- not

7 workshops, but hearings and roundtable discussions

8 that the Commission has been hosting across the

9 country, focusing on the concept of

10 multijurisdictional practice.

11 We welcome you all and although I know there

12 is probably not a representative from the law school

13 here, I do on the record want to say thanks for their

14 accommodations and hospitality. We appreciate it

15 very much.

16 Before we delve into things, since we have

17 such a small group, I propose that we go around the

18 table quickly and give everyone a chance to say hello

19 and introduce themselves and then we can move into

20 the substance of what we want to cover today.

21 Larry, do you want to kick it off?

22 MR. RAMIREZ: Sure. I am Larry Ramirez. As

23 Tony said, I am a member of the Commission. I am

24 from Las Cruces, New Mexico, where I am a sole

25 practitioner. I am a past chair of a general


1 practice solo small firm section of the ABA, as well

2 as past chair of the District of the Supreme Court of

3 New Mexico and I have been active in this discussion,

4 as well as active somewhat in the MDP discussion

5 before and that is one of the reasons I am here

6 because I can't keep my mouth shut. But I am glad to

7 be here.

8 MR. JENKINS: Welcome.

9 MR. HOLTAWAY: I am John Holtaway. I work

10 for the American Bar Association; specifically, the

11 Center for Professional Responsibility. I staff both

12 the Commission on Multijurisdictional Practice and

13 the standing committee on client protection.

14 MS. GRAY: My name is Jeanne Gray. I am the

15 director of the Center for Professional

16 Responsibility at the American Bar Association and we

17 are the unit in the ABA that has brought you the

18 models of professional conduct, that brought you MDP,

19 that has brought you MJP and a host of other issues

20 and the challenge is continuing. I am delighted to

21 be here and I am very grateful that all of you have

22 come to have a dialogue with us today.

23 MS. NEEDHAM: My name is Carol Needham. I

24 started my interest in this area when I was in

25 practice. I now teach at St. Louis University Law


1 School but I was practicing in Los Angeles with a 700

2 lawyer firm that has offices all over the world. It

3 bothered me when I was in Arizona, where I was not

4 licensed, and various other states, the idea that

5 some guy who was licensed last year to be an attorney

6 in some other area is practicing and not focused at

7 all in securities work was the guy who was making

8 sure that the advise was correct. The logic of it

9 escaped me and that is why, when I went into

10 teaching, I was looking for areas of research,

11 because the inconsistencies bothered me; but I am

12 delighted to be here today.

13 MR. WOODS: My name is Dick Woods. I am

14 General Counsel and Senior Vice President for the

15 Federal Reserve Bank of Kansas City, so I am

16 representing, to some degree, corporate attorneys.

17 Tony, I went to law school up in your state,

18 so I was rooting for Redwings. My interest,

19 obviously, we have -- the Federal Reserve Bank is not

20 a governmental agency. I know there is some popular

21 misconception as to that, but we are not. Each

22 reserve bank, with the exception of one, has branches

23 in other cities. For example, the Kansas City fed

24 has a branch in Denver, Oklahoma City, and Omaha. Of

25 necessity, either I, or other members of the legal


1 department, will travel to those branch offices to

2 advise management on legal issues. We also

3 participate in administrative hearings on behalf of

4 the bank there and while we generally hire

5 co-counsel, local counsel to handle litigation

6 matters, we nevertheless are actively involved in

7 that. So the issues involving multijurisdictional

8 practice are very much of interest to us.

9 MS. LAMB: I am Ginger Lamb. I am from the

10 Daily Record in Kansas City and I am just observing

11 to see what happens today at the hearing.

12 JUDGE WAXSE: I am Dave Waxse. I am a

13 federal magistrate in the District of Kansas, but my

14 interest in this is a result of I am a past president

15 of the Kansas Bar and currently one of the two Kansas

16 Bar delegates to the ABA house of delegates.

17 Back when I was president, we were working

18 on the issue in Kansas of trying to get some kind of

19 reciprocity because Kansas, for about the last 20

20 years, has required everyone who comes in to take the

21 bar exam. It has gotten kind of conflicted because

22 the federal courts, on the other hand, decided that

23 was too limiting. So we now allow Missouri

24 attorneys, or other state attorneys, to practice in

25 federal court simply by registering, as opposed to


1 taking the bar, even though generally we require the

2 attorneys that practice in federal court to be

3 licensed in the State of Kansas.

4 MR. WHISLER: I am Joe Whisler. I am a

5 member of the Board of Governors of the Missouri Bar

6 and like Carol and Dick, I am on a special committee

7 the bar has appointed to follow this issue. I was

8 also on the committee last year for MDP and went to

9 the hearing in Dallas and it was a little better

10 attended than this one. So I take it this hasn't

11 really hit everybody's radar screens yet.

12 We want to be involved and are interested in

13 what goes on. My practice is I am hardly ever in

14 Kansas City doing aviation law and departmental law.

15 As the judge said, I am good enough to practice on

16 5th Street in Kansas but not good enough to practice

17 on Minnesota, apparently, for some reason. And that

18 is kind of a long-running issue with the Missouri

19 side. In this neck of the woods, it is particularly

20 of interest to a practitioner.

21 MR. EHRENHAFT: My name is Peter Ehrenhaft

22 and I come to this task via Tokyo in the following

23 way. I am a lawyer in international practice and I

24 have been active in the international practice

25 section of the ABA for about 25 years.


1 One of the most challenging aspects of our

2 work was attempting to open the Japanese market for

3 American lawyers and I was the chair of the task

4 force, working with the Japanese from the early

5 '80's, to try and enable Americans to practice in

6 Tokyo. We have kept up with this campaign because it

7 requires an unrelenting effort to move inch by inch

8 to indeed make the Japanese market available to the

9 many American lawyers who believe that it is a good

10 place to practice and to be available to Japanese

11 clients that would like to have American lawyers

12 available for consultation in Japan.

13 That particular role has led to various

14 other assignments related to the international

15 practice of lawyers. That is what I do as an

16 international transactions lawyer. And although I am

17 admitted in New York and in the District of Columbia,

18 I can probably correctly say that as of today, I have

19 no clients in either of those two jurisdictions. And

20 though my office is in the District of Columbia, I

21 almost never go there.

22 Most of my activities are in Poland and

23 Thailand and other countries and other states. And

24 the notion that the Bar is regulated by rules that it

25 flouts daily, as I do, and so many of my colleagues


1 in the kind of work that I do, is very unsettling to

2 me. And it seems to me that if we try and tell other

3 people how they should behave, that we aught to do at

4 least the same. So I have a real interest in seeing

5 whether we can reform the rules of the profession and

6 to determine what impact that would have on the way

7 that the American legal system operates.

8 I think its has correctly been characterized

9 as a wonderful system in a variety of very important

10 ways and we shouldn't belittle that, but how much of

11 that quality depends upon some of these

12 jurisdictional lines of state-by-state regulation is

13 a question I am not sure there is a direct link. And

14 I would hope that our hearings and the information we

15 receive from those who come and discuss this with our

16 commission will shed light on this matter.

17 To follow up on a point Mr. Whisler just

18 made about the lack of attendance here, it is an

19 interesting and appropriate observation that is

20 matched by the experience that we have had in trying

21 to pole the membership of the ABA on this very issue

22 as to how many lawyers in the ABA and it has, as you

23 know, 400,000 members. How many of you have

24 activities that take you out of the state? How many

25 of you think that it is appropriate that you could


1 practice in another state? How many of you have

2 partners that come from other states? There were

3 about ten or fifteen such questions and they have

4 been printed in the ABA journal and this, that and

5 the other kind of document, attempting to get

6 somebody in our organization to respond.

7 John, do we have five hundred responses to

8 date?

9 MR. HOLTAWAY: We are up to about 250.

10 MR. EHRENHAFT: It is an incredible

11 manifestation that lawyers can't believe that this is

12 a real issue, which is something I am beginning to

13 think, that lawyers think that this is something that

14 bar officials may be very agitated about but as far

15 as the profession is concerned, it is a non-issue and

16 a couple of people are being caught not being able to

17 collect their fees in some odd situations, but just

18 to identify people who have actually experienced a

19 problem in this area is difficult.

20 Therefore, we are receiving some kind of

21 indications that you are making a problem where one

22 doesn't exist. Why talk about this? No one cares

23 and let's just keep on going and shut up. Well, to

24 me, that is not a satisfactory solution. Anyway, I

25 think it is an important fact as to which it would be


1 interesting to hear from you all.

2 You have appointed a commission to study it,

3 but of the total numbers of state bars and others in

4 the country, a very, very small number have even gone

5 that far to organize anybody to take a serious look

6 at this issue. But is this an important issue? How

7 important is it? Should we address it and how should

8 we address it? I want to hear your views.

9 MR. WOODS: Let me say that I know cases

10 that have arisen over a dispute over lawyers fees

11 once there has been a falling out. My personal view

12 with respect to the current state of affairs is that

13 it does not reflect what in practice is occurring and

14 what is occurring without substantial detriment to

15 the general public or the clients.

16 I think primarily of the focus from the

17 client in this, and I think the client should be able

18 to choose an attorney to represent the client in

19 whatever jurisdiction that the attorney may be

20 situated. In your case, you are licensed in the New

21 York Bar and Washington Bar. If someone wants to

22 retain you in the United States as opposed to

23 Thailand to handle a transactional matter, I think

24 they aught to be able to do that.

25 When you get to the litigation arena, I


1 think that is a different matter and we have the

2 traditional pro hac vice that I think has worked.

3 But I am thinking primarily from the transactional

4 standpoint and things of that nature; looking at it

5 from the point of view of a client who wants to

6 select an attorney to represent him/her or it.

7 MR. JENKINS: One of the considerations or

8 perhaps counter-arguments to that, though, is let's

9 take real estate as an example, which is what I

10 happen to do a lot of in my practice. The laws are

11 not uniform; they vary from state to state as to how

12 you do it and what you do.

13 In that regard, would there, in your mind,

14 be some potential problem or issue where an attorney

15 licensed in State A is coming into State B to handle

16 a real estate transaction even though it is a client

17 that they do business or provide services to

18 routinely in State A?

19 MR. WOODS: Let's say that Missouri is State

20 A and Kansas is State B. I know attorneys in

21 Missouri who do real estate work in Kansas and I am

22 confident that there are attorneys licensed to

23 practice only in Kansas that represent people with

24 respect to Missouri real estate transactions. That,

25 I don't find necessarily problematic.


1 One of the things that I really think is

2 that the attorney has, if for no other reasons that

3 just selfish reasons, an interest in not being guilty

4 of malpractice. So were I in private practice in

5 Missouri and I had a Kansas client that wanted me to

6 help them with real estate, I think I am sufficiently

7 competent to look up the Kansas real estate statutes.

8 I would not hold myself out as being confident with

9 respect to the Kansas local court rules.

10 If I were asked to represent somebody in the

11 State of Texas, where I never venture, I wouldn't

12 handle it. Again, my own self-interest in having the

13 client properly represented and not exposing myself

14 to malpractice would cause me not to take that case.

15 So I think in a case where you have a state line that

16 is the kind of state line situation that we face with

17 Kansas, that is one issue. I don't know whether

18 Detroit and Toledo have that kind of thing with Ohio.

19 I think it is only about 40 minutes south or

20 something of that nature. Illinois may have an issue

21 with St. Louis, that type deal, but I think when you

22 are leaping several states, I don't think that

23 broadening the ability to practice in other

24 jurisdictions has much of a fallout for the real

25 estate practice.


1 MR. EHRENHAFT: Mr. Woods, I wanted to ask

2 you, in following up on that, on a paper we received

3 from the Akron Bar Association. They said that --

4 one of the things that was cited to them in support

5 of the view that there should be liberal rulings, was

6 the directive of the European Union pursuant to which

7 lawyers in any one of the countries of the European

8 Union may practice in any of the other countries

9 after three years of climatization in the other

10 country. So the Frenchman can go to Italy and

11 Englishman can go to Germany and so on.

12 The point was made, Look, they do that

13 despite enormous differences in language, culture,

14 approach to life, and so on. If they can do it in

15 Europe, why can't we do it in the United States. And

16 the answer to the -- the Akron Bar submitted a paper

17 to us and said, Well, the Englishman knows when he

18 goes to Germany that he doesn't know enough about

19 German law; therefore, he would presumably recognize

20 his lack of competence and so one could rely on his

21 self-policing because there is such a stark

22 difference between the rules that he would recognize

23 it.

24 The danger of bringing that same kind of

25 concept into the United States is the differences


1 between Kansas and Missouri are probably very small

2 and subtle. A Kansas lawyer wouldn't know whether

3 he, in fact, didn't know enough about Missouri law.

4 Therefore, there is a greater danger in a system in

5 which the rules are not that different for allowing

6 people to cross state lines because they wouldn't

7 know about their own quote incompetence.

8 Do you think that is a respectable argument

9 or a valid one that reflects the facts?

10 MR. WOODS: I certainly think that is one

11 that needs to be considered and I have no doubt that

12 there probably is some merit to that argument, given

13 the fact there is no language barrier in this

14 country. I agree with you, to the extent somebody is

15 motivated purely by either the desire to not lose a

16 client or the desire to earn the fee that would come

17 from representing the client on the Texas real estate

18 transaction. The client, I think, potentially might

19 be at risk. I am not sure whether it would be in the

20 real estate environment. It might be in securities

21 law environment to a greater degree. I am not sure

22 that that argument has enough merit, or that rebuttal

23 has enough merit, to throw out and disregard what, in

24 fact, is the current practice throughout the country.

25 JUDGE WAXSE: If I could respond from the


1 Kansas side of this thing. It seems to me the state

2 line is really not the issue, it is competence. And

3 the same issue you have raised exists in any

4 situation where an attorney attempts to practice in

5 an area where he or she is not currently competent

6 in. We don't do anything to say that the securities

7 lawyer can't go handle a criminal case and yet we say

8 that the real estate lawyer, who may be totally

9 competent across the state line, shouldn't go do

10 that. If we would focus on competence instead of

11 these artificial rules, it would seem to me to make

12 more sense for the attorneys and the clients.

13 To follow up on something else Dick said,

14 there is not only the restraint of malpractice, but

15 there is the restraint of the ethics rules, which say

16 you shall be competent. That means in whatever you

17 are doing in that transaction. So it seems to me we

18 should be enforcing the rules that we have, which I

19 don't think we do a very good job of, and not focus

20 so much on these artificial lines.

21 MR. RAMIREZ: Following up on something

22 Mr. Woods said, he said that in the transactional

23 area, the focus should be on the client and the

24 client should be able to choose an area. Then he

25 made a distinction for litigation and pro hac vice


1 admission. Should there be different rules or

2 different processes for lawyers depending on the type

3 of work they are doing?

4 JUDGE WAXSE: I don't think so. I see, as a

5 judge, lots of situations where lawyers licensed in

6 our court don't know our rules. The license doesn't

7 have anything to do with it. It has to do with you

8 have to stay current on the rules. I think whether

9 it is litigation or real estate, before you proceed

10 in that endeavor, you have to get up to speed on the

11 rules and comply with the rules and act competently.

12 So I don't see that big a difference between

13 transactions and litigation. It is the same

14 principle.

15 MR. RAMIREZ: To follow up on that then, if

16 competence is the issue, how can we, as a profession,

17 ensure competence across the state line?

18 JUDGE WAXSE: I don't know for sure what the

19 answer is; I know what the answer is not. It is not

20 saying that you take a bar exam at some point in your

21 life and then you are competent forever in that state

22 that you took the bar exam.

23 I have told Carol this story. When we were

24 arguing this with our Kansas Supreme Court, they were

25 adamant that they weren't going to allow anybody in












1 Kansas unless they had taken the bar exam. I

2 suggested to the court and the Board of Governors

3 that they take a day off and take a bar exam and see

4 if we were really using that standard and were

5 competent to proceed; and they didn't want to take me

6 up on that.

7 MR. JENKINS: I can't imagine why.

8 MR. WOODS: I might just respond, if I may,

9 on the litigation. The reason I draw the distinction

10 on that -- and again, I think it depends on how well

11 the judiciary polices the admission pro hac vice --

12 but the reason I draw the distinction is whether I am

13 talking about, let's say, real estate law or probate

14 law.

15 I hate to focus solely on real estate law,

16 but I think I can find that out about another state.

17 But I won't know, or I won't be able to find out

18 perhaps as easily, when I go into the other state

19 what are the various statutes and limitations for

20 this or that cause of action. And that is the only

21 thing where I think the judge and I maybe have a

22 difference of opinion. I think there are nuances and

23 subtleties that arise in the litigation arena that

24 aren't as well known if you are not an active

25 litigator in that arena or are reading whatever












1 publication the court puts out or things of that

2 nature. And that is why I draw that distinction.

3 MR. RAMIREZ: But that is not saying -- do

4 we give lawyers a passport and, for example, you have

5 to go and register and get your picture taken -- and

6 there are parts of my state where I likely need a

7 passport to practice -- but how do we do this? How

8 do we make sure that Dick Woods is an o.k. lawyer and

9 he is going to do a good job in New Mexico if he

10 comes to try a case in New Mexico?

11 MR. JENKINS: I want to piggyback on your

12 question. I want to come back to the competency

13 issue, too. It sort of ties into what you are

14 asking, maybe. Should there be some effort to have a

15 uniform or universal test of competency or should it

16 be left to each state to decide what the competency

17 test is for a lawyer who wants to come in and engage

18 in certain activities? What do people think about

19 that?

20 MR. WOODS: I guess my reaction to that

21 inquiry is that it is probably worth, with all due

22 respect, not much discussion, simply because I don't

23 see the states ever being willing to go along with

24 the deal where they didn't have some significant role

25 in the licensing of the attorneys.












1 I think, to the extent I am old enough where

2 I didn't have to take the multistate bar, I would be

3 afraid to take it, David. But I have always assumed

4 that that is kind of the national perspective that is

5 given to an attorney through the testing process. I

6 just don't see the concept of a national test, where

7 somebody would be licensed then to practice almost

8 anywhere as being a politically practical one.

9 JUDGE WAXSE: You know, I think on the

10 litigation side, there is something we can do on

11 competency that I have started doing. I think each

12 judge has an obligation to police that. I think I

13 have now had three or four different attorneys where

14 I have simply sent the pleadings with the description

15 to the disciplinary administrator and said, It

16 doesn't appear to me this person is competent and you

17 determine, under your standards, whether they are or

18 not. And from talking to the other judges I sit

19 with, apparently that is not a norm.

20 MR. RAMIREZ: One other thing in my

21 experience with pro hac vice in the state. When I

22 got admitted, the judge made me sign a statement that

23 said, I have read your rules, I know what they are, I

24 agree to follow them and so forth just like any other

25 lawyer.












1 DEAN POWELL: I would say with respect to the

2 specific question, Are we looking for a national

3 solution here, that the answer is that considerations

4 of federalism probably preclude that. The individual

5 jurisdictions are going to have a strong say in who

6 is going to be able to practice within that

7 jurisdiction.

8 To the extent that we get a result that has

9 national implications, it would seem to me that it

10 follows that that result would be based on some

11 cooperative kind of arrangement. That it would

12 therefore be most helpful for the Commission at least

13 to suggest some sort of model, some basis on which

14 jurisdictions might join together and agree upon

15 appropriate standards that they then might

16 individually decide to opt into or adopt.

17 I had indicated that I wanted to speak on an

18 earlier point, though, because with respect to the

19 question of guarantee of competence, I am always

20 struck by the fact that it is very difficult to be

21 able to guarantee competence, even with the bar exam.

22 To the extent that addresses minimum

23 competency, what it really says is minimum competency

24 for the three months just before the bar exam and

25 three months just afterwards; and the rest of it we












1 take on faith. And while I think, historically, the

2 record is pretty good that people do tend to engage

3 in practice areas that reflect their strengths and to

4 stay away from those that reflect their weaknesses, I

5 think we certainly could be doing more.

6 One of the things that I would hope the

7 Commission would consider in connection with any

8 extension of the license might be a requirement that

9 if you are practicing outside of your jurisdiction,

10 that you at least are maintaining malpractice

11 insurance for any jurisdiction in which you are also

12 seeking to practice. This then provides perhaps not

13 a perfect satisfaction in the event something goes

14 wrong, but it at least provides an incentive to stay

15 current and protection if you don't. Protection for

16 the client, that is.

17 MR. WOODS: That is an interesting thing

18 that I hadn't thought about. I don't maintain

19 malpractice insurance, given the fact that my

20 employer is what it is. But I suspect if I were to

21 look at a malpractice policy, it would exclude

22 coverage if you are practicing outside of the

23 jurisdiction.

24 MR. EHRENHAFT: Believe me, that is not

25 true. I have that very concern in our practice and












1 you are permitted -- the policy that we, at least

2 have, which I think is fairly standard malpractice

3 insurance -- it covers me wherever I practice and it

4 only excludes criminal actions. And one of the

5 questions would be is it, in fact, criminal behavior

6 in some places for me to practice law? I don't know

7 if that has ever been tested, but so far as I am

8 practicing in another state, the policy would cover

9 it.

10 I just wanted to throw on the table, in part

11 to follow up on some of the thoughts that have been

12 expressed here about the sanctity of the jurisdiction

13 of lines of the United States in our federal system,

14 Yes, we do have a federal system. But we also have a

15 full faith and credit clause that is a very vital

16 glue of the federal system. And we allow Illinois

17 corporations and we require that every state

18 recognize a corporation formed under Delaware law and

19 all this internal government's procedures and so on

20 to be recognized in other jurisdictions, wherever

21 that Delaware corporation qualifies to do business.

22 We have in our everyday life something that

23 has been mentioned to our Commissioner on a number of

24 occasions, our drivers licenses. We are tested once

25 when we are 15 or 16, whether we can park or do some












1 little thing that a particular jurisdiction has

2 decided to make a part of the drivers license and

3 other states may say this is a ludicrous test. You

4 really need to know a lot more to be able to drive on

5 our highways. Nevertheless, that driver's license is

6 recognized by every other jurisdiction. People can

7 go in there and drive in other states. Now, when

8 they move and set up their residence, then they may

9 need to be retested.

10 I think it provides, perhaps, an

11 appropriate kind of guideline for the practice of

12 law, too. If a state in the United States had

13 decided that you are adequately competent to be

14 admitted into practice, then if you come into another

15 state, like with the driver's license, there should

16 be a presumption of competence that you can do so.

17 If you move your practice, hold yourself out to be a

18 lawyer in a jurisdiction on a full-time basis, then

19 perhaps some greater kind of procedure aught to be

20 required of registration, waivers or something like

21 that.

22 But it seems to me there are enough

23 precedences in our system, not only with regard to

24 corporations, but what other professions have done;

25 accountants, architects, engineers. There is a












1 mutual recognition of licensure from one state to the

2 other. They don't have this kind of process that we

3 have that makes it so difficult for lawyers to move

4 their practice or to feel confident that they are not

5 violating rules by moving their practice on a transit

6 basis from one jurisdiction to another.

7 MR. WOODS: That is essentially the active

8 proposal.

9 MR. JENKINS: I was going to say that is

10 sort of one of the models that the Commission has

11 heard about during the course of its hearings. Of

12 course, there are other models we have heard about

13 where people think there are problems with that

14 particular model.

15 DEAN POWELL: I just wanted to add a

16 footnote here. The reference was made to full faith

17 and credit. I am not sure that that is the provision

18 we are looking at. I think we are looking at the

19 privilege of immunity provision. But I only note

20 that because we are in a law school and we really

21 worry about those kinds of discussion.

22 Full faith and credit provisions would

23 generally focus on the requirements that another

24 jurisdiction accept what we have done for the

25 residents of our state; whereas, the privilege and












1 immunity would say that you have to treat the

2 residents of our state in the same way, affording

3 them the privileges that you would afford the

4 residents of your own state.

5 MR. EHRENHAFT: I was treating the admission

6 to the bar as an act of a state in determining the

7 competence of a person to practice and that

8 determination by the state is the one that is

9 required to be given full faith and credit.

10 DEAN POWELL: Yes, and I think full faith

11 and credit would simply say that, Yes, we in Missouri

12 will accept that you are licensed in your state. But

13 it would not require that we accept your license in

14 your state as something that we have to accept. And

15 if you are going to get there, then it would become

16 the question of whether we, in our state, have set up

17 any barriers to your becoming licensed in our state

18 that would not also be barriers to anybody becoming a

19 lawyer in our own state.

20 JUDGE WAXSE: Back on this competency issue,

21 I think there are certain things we could do. Some

22 of these we discussed when we were having our

23 discussions with the Kansas Board. One thing is we

24 supposedly had this idea of CLE having some impact on

25 competency and yet we have no requirements that the












1 CLE have anything to do with what your practice area

2 is. So one of the things we have talked about is

3 that maybe one method of dealing with the competence

4 issue would require that if you are coming in from

5 out of state, your CLE has to be something related to

6 the state law in the area you are practicing in.

7 Make it focused and required, as opposed to saying

8 you can take something on something unrelated to what

9 you practice.

10 But the other issue, I think we somehow have

11 this faith that a bar exam is going to have some

12 indication of competency. Every incompetent lawyer I

13 have seen passed the bar exam so I am not sure what

14 that gets us.

15 MR. RAMIREZ: I wanted to throw another

16 little glitch into the constitutional argument or

17 discussion that we are having here. I am one of

18 those lawyers that would focus on the commerce laws

19 and say how these regulations might be a restraint on

20 trade or my ability to earn a living and whether that

21 is a reasonable restraint. Like you said, the bar

22 exam, I don't know that it historically measures

23 competence. And if the goal is to protect the

24 public, does the bar exam really do that? I think

25 that is part of the debate.












1 MR. EHRENHAFT: Do you think that the bar

2 exam could be struck down on the grounds it is --

3 MR. RAMIREZ: No. I am just saying that

4 would make for a very interest argument. With this

5 supreme court, I don't know what would happen.

6 DEAN POWELL: But if we try in Missouri to

7 force out-of-state lawyers to take CLE courses and we

8 weren't requiring our own attorneys to take CLE

9 courses, I think we would have a privilege and

10 immunity problem.

11 MR. RAMIREZ: Or requiring attorneys to

12 have malpractice where you don't require your own

13 attorneys to have malpractice. A lot of states don't

14 have mandatory malpractice.

15 MS. GRAY: I think one of the other issues

16 is that we are talking about kind of competency at

17 the front end, but even presuming competence for the

18 multijurisdictional practice, I think we need to look

19 at the public protection at the back end when, in

20 fact, there has been a failure of competence. Who is

21 accountable, who is responsible and who takes the

22 appropriate action?

23 One of the things that at least the

24 regulation community is concerned about is committing

25 their resources to assuring competence in a lawyer












1 population that is not licensed in the jurisdiction

2 over which they really have no serious effect other

3 than to potentially preclude them from ever being

4 licensed and whether or not they would be full faith

5 and credit on their records with regard to the whole

6 state.

7 So I think that assuring competence at the

8 front end in terms of, do we let somebody go in pro

9 hac vice and do transactional practice. But at the

10 back end, how do we then sort of have an overlay of a

11 regulatory system where 52 jurisdictions buy into it

12 in some consistent fashion and really gives the kind

13 of respect and reciprocity that I think would be

14 needed to legitimize what we all agree is how

15 practice is conducted in the country right now.

16 But it is conducted without any oversight

17 and without any meaningful regulation and conducted

18 in a way that people are certainly not confident

19 about the legitimacy of what they are doing, which is

20 why only 250 lawyers bothered to respond to our

21 survey. I think people are concerned.

22 MR. EHRENHAFT: Isn't the implication,

23 however, in what you are saying support for the view

24 that this entire exercise is kind of a silly one?

25 Because, first of all, it is posited on the notion












1 that regulation is required. Is it in fact -- what

2 is the predicate for requiring these kinds of

3 licenses, anyway? There is historic record of it but

4 forget history for a moment.

5 In the courts, it is a different thing. I

6 think from the earliest courts, it may be that judges

7 have required that people who appear before them have

8 a certain kind of competence and whatever. And one

9 of the problems we have about devising rules is -- we

10 usually talk about legislative rules -- it is very

11 hard to require courts to do anything. I mean, maybe

12 the courts will always have an inherent power to say

13 who is going to have the right to appear before them.

14 I don't know enough about that. It would be

15 interesting to know.

16 But one of the things that has struck me in

17 the course of these hearings is we hear about this

18 problem you are talking about, the regulators need to

19 be able to catch the malfeasers. How many malfeasers

20 are there? Out of the million lawyers practicing in

21 the United States, how many, in fact, do we have to

22 be concerned about?

23 And considering all the other problems of

24 our country, the crime and everything else, how many

25 resources should the community put into going after












1 -- what, five hundred lawyers in the country per year

2 that actually malpractice to the injury and are

3 caught at it. There may be millions or thousands

4 that are malpracticing in some way and nobody knows

5 about it because it may have no adverse effect. But

6 as far as the record is concerned about what really

7 is a bad situation requiring regulation, do we have a

8 case?

9 MS. GRAY: I would say, Peter, my sense

10 would be that if, in fact, we relax the barriers to

11 practice in the country so that interstate practice

12 becomes the common practice and that is something

13 that people do and wonder how far they should go.

14 Can I go to Texas? Should I go to Texas? Now you

15 know you can go to Texas, if you want. We can all

16 become competent by going on the Internet and by

17 doing research.

18 I think there will be a greater

19 proliferation of activities. And yes, I do think the

20 judicial branch of government in this country needs

21 to regulate it. I mean, I don't think they just

22 regulate in-court practice. I think they regulate

23 the delivery of legal services in this country in any

24 framework, in any scheme, in any setting.

25 I am not saying there is a major problem,












1 but I think that the court just can't decide that

2 because they are not licensed in our state, we are

3 not going to have accountability and responsibility

4 to protect the citizens of our state. And to give

5 guidance to the bar. So I don't think anybody says

6 it is a major problem. Certainly, as Bierbauer said,

7 as a court, we are looking at our own law in our own

8 state and we had to make the finding that we made.

9 And I think every state might take the same view. So

10 if they want to relax, then I think we need to do

11 something.

12 DEAN POWELL: I think Jeanne is absolutely

13 correct. I cannot envision a jurisdiction that would

14 contemplate a friendlier attitude towards foreign

15 lawyers, while at the same time not insisting upon

16 close scrutiny and regulation and ultimate power to

17 sanction those lawyers.

18 So it seems to me that once we even begin to

19 raise the question, Are we going to provide wider

20 arenas for lawyers to practice -- or I should say,

21 Are we going to allow for lawyers to practice across

22 jurisdictions, what we are necessarily saying is that

23 we are also going to allow those lawyers to be

24 reviewed and sanctioned, if necessary, in wider

25 jurisdictions.












1 MR. EHRENHAFT: Nothing I said was contrary

2 to that idea. It would just be the different

3 standard that I would follow the suggestion made

4 here, that the only standard that really is

5 appropriate is the competence one and the actual

6 malpractice one. If malpractice occurs due to

7 incompetence or malfeasance or fraud or whatever,

8 certainly the jurisdiction where that has occurred

9 aught to have the ability to take action and it may

10 proliferate but it may not.

11 The defacto situation in this country today

12 is that thousands upon thousands of lawyers are

13 crossing state lines. There are not thousands upon

14 thousands of complaints about incompetent lawyers

15 invading the states from abroad and having a

16 deleterious effect on the population here. So that

17 is an adequate, I would think, could be an adequate

18 rule. But limited just to that, to whoever

19 malpracticed, whether they are licensed here or not.

20 MR. JENKINS: I get your point. Carol?

21 MS. NEEDHAM: Basically, the system, the

22 disciplinary authorities interested in having a

23 record, I think it is important to make a distinction

24 between the discipline imposed in the host state.

25 Obviously, the host state being able to enforce its












1 disciplinary actions there and then the factual

2 records developed in that host state being sent to

3 disciplinary authority in the home state. But not

4 necessarily mandating that the home state exert

5 the exact same physical measure as the host state has

6 determined.

7 So I think there is a certain kind of mutual

8 discretion that different prosecutors may take

9 different views for the same behavior and I suspect

10 that if I were the disciplinary counsel, I would not

11 want to have my hands tied as to one of my guys,

12 based on what some other prosecutor decided to do

13 because I may want to do more. And the record

14 developed elsewhere would be shipped over, but not to

15 require that if they decided to disbar that I would

16 also have to disbar.

17 MR. RAMIREZ: Just think of the great

18 conflict of law course. Real quickly, we had a

19 situation. When I was chair of the disciplinary

20 board in New Mexico, we had an attorney who was

21 working for the United States government. He was an

22 assistant attorney general but he was working in

23 Washington, D.C. I can't remember the exact ruling,

24 but there was an opinion that the United States

25 attorney general had said that they could --












1 MS. NEEDHAM: Thornburg Memorandum.

2 MR. RAMIREZ: Thornburg Memorandum. I was

3 trying to remember the term. Anyway, I think it was

4 Judge Hollaway in Washington, D.C. didn't think that

5 that was right, that she aught to be able to talk to

6 the alleged felon without the presence of his or her

7 own counsel. So she, herself, reported this young

8 man to the disciplinary board.

9 Well, he is not licensed in D.C.; he was

10 licensed in New Mexico. So she reported him to New

11 Mexico. So we had to go and investigate in

12 Washington, D.C. on something that did not occur in

13 New Mexico. So it raised some real interesting

14 issues.

15 JUDGE WAXSE: I think another factor that

16 your comments raised is that Kansas has sort of a

17 fallout from MDP, a new commission. One of their

18 stated goals is to attempt to insure that there is no

19 unauthorized practice of law, which they are defining

20 as including people from Missouri coming over and

21 practicing without a license in Kansas.

22 Within the last year, it was after MDP, that

23 was their response. We have seen it now and it is

24 terrible and we need to stop it. Their stated

25 purpose is to protect the citizens of Kansas from












1 these bad people, but the unstated purpose,

2 obviously, is we have enough lawyers here and don't

3 need these other people.

4 MR. JENKINS: Are you close enough to that

5 situation to shed some light on what has happened?

6 Is their charge, then, to simply identify UPL and do

7 they report it out to some disciplinary or

8 enforcement authority?

9 JUDGE WAXSE: They are in the process right

10 now of doing the impossible, from my perspective,

11 which is first defining the practice of law. What is

12 kind of funny is I got stuck doing this myself in the

13 early 90's. Based again on what the Board of

14 Governors wanted, we came up not only with the

15 definition but with an enforcement mechanism. Sort

16 of using the Consumer Protection Act as a structure

17 that would allow people to get all the normal

18 remedies under that against people that are engaged

19 in the unauthorized practice. But once we looked at

20 it in the early '90's, we decided this was

21 impossible. There is no way we are going to be able

22 to do this.

23 But now this group that is newly formed is

24 taking that old definition and saying we can make

25 this work and we are going to stomp out this












1 behavior. But so far they haven't done anything more

2 than meet to talk about redoing the definitions of

3 the structure.

4 MR. EHRENHAFT: I wanted to follow up on

5 Carol's comments about the problem about the person

6 in the home state not wanting to enforce carte

7 blanche what was suggested by the host state and the

8 perhaps difficulty of the host state to take action

9 against someone who leaves the host state and goes

10 back to the home state and doesn't come back.

11 There again, there are many other situation

12 in our economy and life where the same issue arises

13 and it seems to be handled all right. If you speed

14 in Georgia, you have to appear in court in Georgia.

15 And the fact that you are licensed in New York, they

16 may send -- the fact that you got convicted may

17 appear on the records in New York, but as far as New

18 York taking additional -- fining you in addition to

19 whatever fine you paid in Georgia, there is not going

20 to be an additional fine. It is just going to be

21 that we are going to learn about it and the place

22 where the thing happens is going to take action.

23 With regard to what most lawyers are doing,

24 I think that our product liability laws have shown

25 the way that you can't hide -- if you purposely go to












1 a jurisdiction and offer a good or service and the

2 person is injured as a result of that, our legal

3 system provides for long arm jurisdiction to require

4 you to appear. If the lawyer from New York won't

5 come back to Georgia to defend himself, there will be

6 a default judgment and it can be enforced in his home

7 state.

8 These are not really insuperable problems to

9 this issue and we shouldn't create or make believe

10 that they are. They can follow logically from many

11 other developments in our economy and society. And

12 one of the things that really surprises and disturbs

13 me about what we have been hearing over and over is

14 as though the legal profession is in some kind of a

15 hermetically sealed container and we only look at our

16 own navels to decide what is good for us and for our

17 profession.

18 We really aught to learn what other

19 countries are doing, what other professions are

20 doing, what other aspects of our economy are doing

21 with not dissimilar problems. And I think that will

22 guide us to a more sensible solution than focusing

23 just on the way that lawyers have done things for a

24 long time.

25 MR. JENKINS: That probably is not too far












1 away from my personal philosophy, too, Peter. I

2 would be interested in what others think about that

3 idea. Let me just toss a question out and then turn

4 to Dick.

5 For example, the analogy you gave about a

6 traffic violation. Maybe that is fine but maybe we

7 aught to hold lawyers to some higher standard because

8 of what they do and because of how they interact with

9 the public and the like. I will put that question on

10 the table just to kick it around a little bit. Maybe

11 some other people have some views about that one.

12 JUDGE WAXSE: I think he is wrong on the

13 facts because most states, when you get a violation

14 in another state, it goes on your record and if you

15 get enough of them, you are going to lose your

16 license even if you didn't do anything in your home

17 state. So I think they do consider what goes on

18 elsewhere and I think --

19 MR. EHRENHAFT: That is what I said. They

20 will mark it in the records, but I don't think they

21 will initiate a separate proceeding.

22 JUDGE WAXSE: But they will take your

23 license if this is your third one or whatever it is

24 you are not supposed to have. I think the lawyers

25 could do the same thing again.












1 MR. WHISLER: That arises out of a

2 multistate compact, the ability for Georgia to have

3 my license revoked in Kansas. We don't have one of

4 those. That may be what we end up with, like the

5 multistate sales and use tax where the states agreed

6 on a procedure we can follow. That takes the

7 political well of not only the supreme courts of the

8 states but also legislatures.

9 I don't have a great deal of confidence that

10 is going to happen, but it might, if it is marketed

11 good. The only way lawyers are ever going to care

12 about this is if someone says I might not get paid.

13 I did this work in California, I am licensed in

14 Minnesota. They knew I was not licensed in

15 California but I don't get paid. That is how you get

16 our attention. MJP threatened people -- excuse me,

17 MDP did, MJP doesn't. If we are going to go anywhere

18 with this, we need to get people's eyes open and make

19 them realize this can affect them.

20 MR. JENKINS: Dick, do you have a comment?

21 MR. WOODS: I want to go back several steps

22 to some comments Peter made about the number of

23 malpractice claims that are brought by clients. I

24 don't know the specific figures, but judging from the

25 little information I have, I would agree. I can't












1 remember whether it was Joe or the judge who made the

2 point that the disciplinary function or procedure is

3 not effectively used.

4 I am in the minority in that I would be one

5 that would favor publication of the results of the

6 disciplinary hearings. But I think there is a lot

7 more malpractice going on out there that never comes

8 to light. Depending upon the relative sophistication

9 of the client, anybody who has been in practice very

10 long knows it is easy to say, It wasn't my fault, it

11 was the judge's fault or it was somebody else's fault

12 so the client thinks he is there with an empty sack.

13 And I think there is also -- when somebody

14 is frustrated with their attorney, unless there are

15 significant stakes involved, the people I have talked

16 to generally don't want to continue to deal with

17 attorneys and they don't want to spend more money

18 having to make their case when they don't think much

19 is going to happen as a result of their coming

20 forward.

21 So I don't think there is widespread

22 malpractice out there, but I do feel that if you go

23 to a multijurisdictional practice, that the state bar

24 associations would have to, and should, devote more

25 resources to the disciplinary aspect. And as I say,












1 I would publicize the actual results. I wouldn't

2 publicize the charges, but once the disciplinary

3 action is concluded, I would make that public.

4 MR. WHISLER: Well, we do that. Any lawyer

5 in Missouri who is reprimanded, suspended or

6 disbarred is published every month.

7 MR. WOODS: Right, but I don't think that is

8 true in every state.

9 DEAN POWELL: In the majority of states and

10 it has been the ABA's position for a number of years.

11 MR. RAMIREZ: Once the specification of

12 charges is filed, as well, most states now say that

13 all that is public record and the hearings are open.

14 When we first adopted that rule in New Mexico we

15 thought, see what happens. Nobody goes to those

16 hearings.

17 MS. NEEDHAM: I guess the one thing I would

18 say about client protection is that to have a

19 realistic protective function, it would have to be

20 some sort of Internet available searchable database,

21 not publishing something in a monthly magazine that

22 two years ago somebody had been disciplined is not

23 going to help somebody today.

24 I do know I heard the disciplinary counsel

25 in particular states say to me that in their state's












1 rules, they are unable -- they feel frustrated when

2 someone is calling and they have a choice of hiring

3 two lawyers to handle something. What do you have to

4 say about it? And one has got a big fat file of a

5 number of different investigations, none of which

6 result in public discipline and the other one has

7 been practicing 15, 20 years with never a complaint.

8 They would like to be able to say, Go with Number 2

9 but they can't, because the charges are not public.

10 There is something frustrating to me on the

11 side of the disciplinary counsel to not be able to

12 reveal what the Better Business Bureau can reveal

13 about, you know, floor refinishers.

14 MR. WOODS: I think a disciplinary web site

15 would be great because, again depending on which

16 state you are in, the publicity may be limited to the

17 bar journal that is circulated only to the attorneys.

18 MS. NEEDHAM: It might make the lawyers mind

19 their P's and Q's a little bit better to know it is

20 not just a rap on the knuckle but an ongoing listing

21 on the national --

22 MR. HOLTAWAY: The ABA does maintain a

23 national lawyer regulatory databank that anybody can

24 either write in or call in and ask if a certain

25 lawyer has been disciplined and if it is a matter of












1 public discipline that has been reported to the ABA,

2 you could find out about it.

3 MS. NEEDHAM: But is all discipline reported

4 to the ABA?


6 MS. NEEDHAM: Is there any way to get --

7 MR. HOLTAWAY: Almost. We can't force them

8 to report it.

9 MS. GRAY: Virtually every state does report

10 it and several of the federal courts. But to get at

11 the issue you are talking about because private

12 discipline or just multiple dispositions that don't

13 result in a public sanction are never reported to the

14 databank.

15 JUDGE WAXSE: I have a three o'clock hearing

16 so I have to leave. One last thing, it seems to me

17 that one issue that has to be dealt with, at least

18 from my limited perspective, most disciplinary

19 authorities are not enforcing competence. They are

20 mostly focusing on real bad behavior as opposed to

21 just incompetent behavior. And they hold out to the

22 public that it is an ethical requirement that you be

23 competent and yet our apparatus, at least from my

24 perspective, doesn't really seem to focus on that.

25 If we were going to get rid of these artificial












1 barriers and focus on competence, we would have to, I

2 think, start enforcing these competence requirements

3 and not just talk about it.

4 MR. JENKINS: You have talked about examples

5 of where practitioners have come before you and you

6 have personally determined them to be incompetent and

7 taken action to deal with that. If we step back from

8 that sort of personal role that a judge or the

9 judiciary complaint, what are you suggesting to us?

10 What is the mechanism by which we do that?

11 JUDGE WAXSE: Two things. One is, if

12 lawyers really complied with the reporting

13 requirements that they have already, that would help.

14 And I don't think that is going on. And two, I don't

15 think disciplinary authorities generally think

16 competence issues are something they should deal

17 with. It is malpractice, let the civil side deal

18 with it. But at least my experience, from looking at

19 a little bit of the research, you don't see a lot of

20 lawyers being disciplined for incompetence.

21 MR. EHRENHAFT: The point that you make is

22 absolutely right. Most of those people could be said

23 that they are not competent to determine that

24 competence. You are talking about some fairly

25 sophisticated and difficult issues as to what is, in












1 fact, competence and giving advice and therefore the

2 only way it can really be appropriately determined

3 might be through civil litigation where appropriate

4 expertise can be brought to bear on that.

5 JUDGE WAXSE: The ones I turned in were

6 simple -- where they missed two or three deadlines in

7 a row. It is not real tough for me to see.

8 MR. RAMIREZ: Let me ask you real quick,

9 Judge. What about UPL enforcement in Kansas? Is

10 there a lot of UPL enforced.

11 JUDGE WAXSE: No. The only thing that has

12 gone on is there have been a few attorney general

13 actions brought against possie comitatus types but

14 nothing much. This commission claims they are going

15 to get after this and we will see.

16 MR. JENKINS: Judge, thank you for taking

17 the time to join us. We appreciate it.

18 JUDGE WAXSE: Thank you.

19 MR. WHISLER: In Missouri, our regulators

20 have their hands full with people that steal money

21 and get drunk and are on drugs and don't show up for

22 things. We don't have enough people to deal with

23 that. We lack the resolution to fund any further UPL

24 kind of claims, which -- I think we think we would

25 lose, more than likely, on most UPL claims. But it












1 is expensive and we do not have the resources.

2 MR. RAMIREZ: Is yours a criminal statute?


4 MR. HOLTAWAY: Are the members of the

5 Missouri MJP committee -- have you been following

6 what is going on in Oregon, Idaho, and Washington?

7 MR. WOODS: Yeah.

8 MR. HOLTAWAY: Have you, in your

9 discussions, reached any type of consensus or are you

10 going to issue a report or send this commission any

11 written comments or --

12 MR. WOODS: I think we are going to next meet

13 on May 11 in Jeff City and then I believe there is

14 one more meeting scheduled in St. Louis. We have had

15 two meetings so far and to date, there has been a

16 great deal of discussion. There is kind of a

17 discussion draft of a proposed rule that has been

18 circulated among the members and presumably will be

19 part of a report that is made to you all. Probably I

20 would say I think they were shooting for June, to get

21 something to you in June.

22 MR. JENKINS: That would be helpful. We

23 have a target date of June 15, although it is not set

24 in stone and we certainly -- I say it this way, that

25 is the target date and we are certainly going to be












1 open to receiving comments and perspective after that

2 date.

3 MR. WOODS: I think some of the things we

4 have considered are the concept of the driver's

5 license, the idea of a national licensing procedure.

6 The regional compacts just the proposed rule and how

7 that might be tweaked. We have also talked about the

8 difference -- the attitude, and in terms of changing

9 the rule for transactional folks or more to the

10 point, for people employed by private corporations

11 such as I am, as opposed to the litigation

12 environment where I think there is a greater concern

13 that somebody is actually taking money from the

14 licensing jurisdiction's attorney's pockets than

15 there is when somebody for Nabisco or Federal Reserve

16 or GE have their own attorneys going to another

17 jurisdiction to do some work.

18 MR. RAMIREZ: You said you looked at the

19 proposed rule. Are talking about Rule 5.5?

20 MR. WOODS: Yes.

21 MR. RAMIREZ: Ethics 2000 Rule?

22 MR. WOODS: Yes.

23 MR. RAMIREZ: Are you guys far enough along

24 in your work to have a sense as to whether or not you

25 think 5.5 will work? Does it go too far or not far












1 enough?

2 MR. WOODS: I can only speak for myself and

3 unfortunately, the chair of our commission or

4 committee is in Washington, DC and unable to attend,

5 but my personal view is that it is a step in the

6 right direction. I would tweak one of the particular

7 subphrases a little bit to make it a little more

8 broad. That has to do with the -- in fact, I might

9 ask you because at our last meeting there was a

10 little difference of opinion as to how to interpret

11 the rule requirement 5.5.

12 As I recall, 5.5(b)(2)(ii) refers to the

13 lawyer acting with respect to a matter that arises

14 out of, or is otherwise reasonably related to, the

15 lawyer's practice on behalf of the client in a

16 jurisdiction in which the lawyer is admitted to

17 practice. And my reading of that, together with the

18 two sets of comments, meant that the client had to be

19 domiciled or incorporated in the same jurisdiction in

20 which the attorney is licensed. One of our other

21 members read that to mean that they did not have to

22 be in the same jurisdiction. Have you all addressed

23 that? We thought this was a little ambiguous.

24 MR. JENKINS: I don't know that we addressed

25 it directly. I think there was some discussion at a












1 prior hearing. That is work being done by the Ethics

2 2000 Commission and I don't know if Lucien talked

3 about that in a private meeting. Yes?

4 MR. EHRENHAFT: It can't be right that the

5 client has to be in the same jurisdiction.

6 MR. WOODS: It cannot?

7 MR. EHRENHAFT: Yes, because so many of the

8 corporate clients are not domiciled. So it must be

9 read that it has to be related to the lawyer's

10 practice in the jurisdiction. And that is -- I think

11 we have heard from the business law section and

12 others that that is still an excessively narrow

13 interpretation. That is why there are additional

14 safe harbors, so many safe harbors that you will have

15 a laundry list like the ocean.

16 MR. RAMIREZ: Like the hearsay rule.

17 MR. WOODS: I can't remember whether it was

18 the reporter's comment or just the proposed comment

19 that seemed to indicate that they did have to be. In

20 any event, I think you could cure that by just

21 eliminating part of the last line of that paragraph.

22 MR. EHRENHAFT: That is among the proposals

23 that have been made to improve or to modify that. If

24 the Rule 5.5 approach is going to be used at all,

25 that is. I guess we have had discussion about top












1 down versus bottom up focus whether you say

2 everything is allowed except that which is prohibited

3 rather than saying nothing is allowed except what we

4 have sanctioned with these safe harbors. Maybe they

5 get you to the same place, but there is a slight

6 difference in approach.

7 MR. WHISLER: I have had to miss the second

8 meeting, but do we still think that Ethics 2000 is a

9 good start?

10 MR. WOODS: The group that was there -- and

11 you were on the phone, Carol -- the group that was

12 there, I think that Joe felt that it was an

13 appropriate place at least for us to start and then

14 propose some modifications to that rule.

15 MS. NEEDHAM: For what it is worth, my sense

16 of the meetings, both sides, was that it doesn't go

17 far enough. But as far as it goes -- there was one

18 more conservative member but just sort of becoming a

19 better-informed member. But it seemed to me the

20 general gist of it was at least this and now let's

21 see what else. With the idea that it be politically

22 achievable to not be pie-in-the-sky coming up with

23 something that someone academic might think was a

24 great system which doesn't relate to their political

25 realities and abilities.












1 But it is interesting to me that everybody

2 wants to take steps in a direction. It does seem to

3 me that the tide is in a certain direction, yet each

4 group is kind of waiting for another group to --

5 like, I don't want to be so bold so I won't go quite

6 as far as I think we aught to. And we are all

7 waiting for somebody else to be that bold.

8 My sense was that this was certainly not

9 unpalatable to anyone, but we thought more could be

10 done and that whole safe harbor calling on only these

11 things that we were picking apart that and saying,

12 What about a client that I have done a lot of work

13 for? And this place that opens up operation

14 somewhere else and calls me, why shouldn't I be able

15 to take that work on?

16 And we are trying to distinguish between

17 what your listing of inventory of issues has under

18 number seven, eight, and nine. Probably perspective

19 client versus prospective client. And we are trying

20 to draw some lines that I am not sure, personally,

21 are drawable. I think you ought to be able to be, if

22 you are well-known to be an excellent environmental

23 regulatory lawyer or immigration lawyer, you should

24 be able to handle those if someone comes to you to

25 handle and --












1 MR. WOODS: And the other issue that we have

2 also been discussing is if you eliminate the

3 questions of state law and if you are talking about

4 federal law, for example, advising people on federal

5 income tax matters or federal securities law matters,

6 immigration matters, why should somebody licensed in

7 Washington who handles immigration laws not be able

8 to represent a client in the State of California?

9 MR. JENKINS: Let's do this, if we may.

10 Let's hold that question or that comment and take a

11 short break, let people refresh themselves, and then

12 reconvene and start again.

13 (Recess.)

14 MR. JENKINS: Back on the record. I think

15 you had the floor, Carol, just before we broke and I

16 don't know if that is a good place to start or you

17 have probably forgotten?

18 MS. NEEDHAM: As I recall, we were talking

19 about the degree of client choice that we wanted to

20 respect. I think that is really what it boils down

21 to. To the extent that you were kind of asking us

22 about the sense of the Missouri group and we were

23 saying that while 5.5 doesn't go far enough, but at

24 least is a step in the right direction.

25 We were debating about how to respect client












1 choice, particularly the idea that the lawyer is

2 approached in the home state by a client from out of

3 state to do work. And the consensus, it seems to me,

4 please flush it out if you think otherwise, that a

5 lawyer ought to be able to do work directly within

6 their area of expertise regardless of where the

7 client is located who calls upon them to do the work.

8 But that does require self-policing and that gets us

9 back to the competence issue.

10 Certainly, someone that is known as aircraft

11 finance lawyer or an environmental regulation

12 specialist or whatever the area is, then they get

13 calls from people even that they have never done any

14 work for, they want to be able to do that work with

15 whatever travel is involved as opposed to I can stay

16 here and speak to you on the phone but I can't go to

17 the meeting. The point at which I don't think we

18 have scrutinized completely is, is there some way to

19 say you can respond to client request but yet you

20 can't market yourself or instigate.

21 MR. JENKINS: Take the initiative.

22 MS. NEEDHAM: And I am not sure we got a

23 good answer. Speaking personally, I think in the

24 context of the First Amendment and the Went For It

25 decision and the other supreme court cases on












1 advertising and transportation, it seems to me that

2 as long as somebody is complying with the -- not

3 misleading and that kind of standard, I don't know

4 that it makes sense to try to please that particular

5 distinction.

6 Would you say the lawyer is marketing

7 himself if he is attending a conference or hosting a

8 seminar and sends newsletters out saying that if you

9 want to get up on the latest OSHA regulations, we are

10 having a cocktail party at my office with an oral

11 presentation? You know, that networking or if you go

12 across state -- or you go to a conference somewhere

13 else out of state and you talk to people and they

14 mention -- I think we have already revisited that

15 with the advertising cessation discussion of a few

16 years ago and I don't think you could possibly try to

17 exploit that.

18 So if you were able to take the work, you

19 should be able to take it. I think it is only in bad

20 taste or improper to go after it on the solicitation

21 side.

22 MR. RAMIREZ: One of the things that we have

23 heard is that we should not be concerned with market

24 pressures or economic forces and what effect they

25 have on the profession. That we need to focus more












1 on the rules themselves and try to develop rules that

2 don't really reflect that. Do you think that is

3 realistic?

4 MR. WOODS: Could you tell me what you mean

5 by market forces?

6 MR. RAMIREZ: For example, in the MDP issue,

7 in this issue as well, we talk about client choice.

8 Well, client choice is maybe a market-driven factor.

9 I may be able to do the services less expensively or

10 I am an A-one expert in the entire United States in a

11 particular area of law and so that client wants me.

12 But because they are in New York and I am in New

13 Mexico, they can't hire me.

14 MR. WOODS: I don't view this so much as a

15 market force, although we just may be using different

16 words. I think this goes back to what I said, and a

17 couple of people echoed, at the very beginning and

18 that is, I think the focus of this rule should be to

19 reflect what, in fact, is occurring. And I think the

20 focus or that the rule should be viewed from the

21 perspective of the client.

22 In other words, I think to the extent that

23 this rule is changed or marketed for change, on the

24 point Joe mentioned, and that is you have the

25 possibility of losing your fee if there is a fallout












1 with the client, that is a little bit -- I don't

2 know, I don't like that approach.

3 MR. RAMIREZ: But you do feel that if the

4 Commission recommends a rule or whatever, that your

5 personal position would be that it should reflect

6 reality?

7 MR. WOODS: Yes.

8 MR. EHRENHAFT: There are two points to

9 follow up on. One is that we have heard from judges,

10 for example, who say that if you have rules for good

11 reasons, the fact that the market or other people

12 don't like it or that it is inconvenient or so on, is

13 not a sufficient reason to change it or to abandon an

14 appropriate rule of ethical behavior. The fact that

15 it is inconvenient to a lot of people and that the

16 clients are not the only beneficiaries of the legal

17 system.

18 The legal system has a much broader scope

19 and the responsibilities of lawyers extend far beyond

20 just clients we are serving. We are officers of the

21 court to uphold a justice system. And that argument

22 then is used, for example, by the Akron Bar to say,

23 if we are serious that we want lawyers to be in a

24 position to uphold the justice system, they have a

25 legitimate interest in their economic well-being and












1 that their practices are not sucked away by

2 carpetbaggers from other states and so on, who want

3 to have a vibrant local bar that can do pro-bono work

4 locally, to do other kinds of things we need to the

5 administration of justice. This is an argument.

6 I am not saying this is fact, but it is a

7 point of view that certainly has been expressed. And

8 I think it requires, if you don't agree with it, a

9 principled kind of approach that recognizes that

10 there is certainly valid, viscerally valid points

11 being expressed.

12 MR. WOODS: I would guess that most of those

13 judges are probably older judges, but I would

14 disagree. I think they are muddling the regulatory

15 side with the ethics side. I think you can have this

16 rule and still have the ethics issue be of paramount

17 concern but I just don't -- the rule is not just

18 inconvenient, the rule is being ignored.

19 Again, if the fact that the rule is being

20 ignored, in other words, given what reality is, if

21 there was substantial detrimental fallout to the

22 client and the public, I would be the first one

23 arguing to say the rule shouldn't be changed, it

24 should be enforced. But I don't hear that to be the

25 case.












1 I also think, with respect to the Akron

2 concern about having a vibrant bar and everything, I

3 think if the rule is changed, I would also not buy

4 into any kind of a floodgates argument that there is

5 suddenly now going to be wholesale interstate

6 practice. I think what is happening now will

7 continue. I am sure it will increase to some degree,

8 but I don't see local bar associations going

9 bankrupt, so to speak, because all the money is going

10 to the Texas lawyer or the Washington D.C. lawyer.

11 I think to some degree maybe the lack of

12 response, when you get away from, I think, the big

13 cities and the important financial centers and when

14 you get away from the cities that are on the state

15 line. I mean if you are down in Jefferson City

16 Missouri and you are talking about somebody who

17 practices domestic law or real estate law, unless it

18 is a very unusual situation, they are just going to

19 be practicing in Missouri and this doesn't matter to

20 them. They are not going to lose money as a result

21 of this.

22 MS. NEEDHAM: It does seem to me a principle

23 objection to the current situation. It seems to me

24 that that is actually what precipitated this whole

25 commission. That it is not a question of business as












1 usual or we can make more money doing it a certain

2 way, it is that let's question authority. You know,

3 from the '60's and '70's.

4 Let's investigate the foundation, let's

5 investigate the premises of the UPL restrictions.

6 These are not ancient origin. They are relatively

7 recent and are they correctly placed. Are they

8 protecting clients' interests and all the legitimate

9 purposes or not? And if they are not correctly

10 placed, if the foundation is incorrect, then it aught

11 not be continued just because we have had it this way

12 for decades. I think it is really a principle thing.

13 MR. EHRENHAFT: Can you articulate

14 differences between, quote, ethical rules that you

15 think are appropriate and, quote, merely regulatory

16 rules that the judges shouldn't involve themselves

17 in?

18 One we have heard a number of times is we

19 shouldn't elevate to ethical rules, rules that are

20 simply rules of either convenience or regulation or

21 have other foundations but they are not, quote,

22 ethical. Ethical, I guess, means don't steal. Is

23 competence an ethical rule or a regulatory rule, for

24 example.

25 If the lynch pin of regulations should be












1 competence only, is the obligation not to practice

2 law except in that which you are competent a

3 principle of ethics or is this just something that is

4 regulatory and appropriate because the state has an

5 interest in making sure the public is protected?

6 MS. NEEDHAM: I think it is both and not

7 inconsistent that it be.

8 MR. WOODS: I guess my initial reaction,

9 Peter, as you were talking, is to think of competence

10 as being not an ethical issue. I think of ethical

11 issues as being, as you say, not stealing from the

12 client; regardless of what your practice is, not

13 having a romantic affair with your client; not

14 engaging in a conflict of interest where I represent

15 one party and then three days later take a case or

16 three months or three years later, a case that is

17 adverse to that former client.

18 I think of ethics in that sense, whereas the

19 competence issue -- and I wish I could think of

20 something off the top of my head that would be

21 analogous that is other than a driver's license or

22 something like that.

23 MR. EHRENHAFT: I mention it because if you

24 guys are formulating a report that you are going to

25 submit and you had some thoughts about that, I think












1 it would be very useful because the theme has come up

2 on a number of occasions. There is, I think, some

3 confusion or a lack of understanding as to is there a

4 difference between them and if there is, what are the

5 implications of that difference.

6 MR. HOLTAWAY: I have a question, too. For

7 your committee, have you heard from your membership?

8 Have you heard from people saying that the rules have

9 got to be changed and this is unfair?

10 MR. WOODS: I don't know. Probably the

11 person best able to answer that would be Keith Burks,

12 I would guess, who is the executive director. He has

13 not mentioned anything to me.

14 MR. HOLTAWAY: Another question, we sit

15 around and say we have got to change the MJP rules

16 because the clients want it or the clients demand it

17 and they deserve this and they have a right to

18 choice. Have you heard from clients or the public?

19 MR. EHRENHAFT: Is that the right question,

20 John? Maybe it should be the other way around. Has

21 anybody said that we have got to keep our system

22 because this is important to us? The facts are that

23 the rules are being ignored. I don't think there is

24 a question about that.

25 So if they are being ignored, is that a












1 phenomenon that the clients are not going to say we

2 need to change the rules because we find them

3 inappropriate to what we want? Because they are able

4 to meet their needs because people aren't following

5 the rules.

6 MR. WOODS: I would also speculate to say

7 that most clients are not aware of this problem at

8 all. I can't imagine outside counsel coming up to me

9 and saying I would be glad to help you there and I

10 want to help you there, but you need to understand I

11 am licensed to practice law in Colorado but not in

12 Oklahoma.

13 MR. EHRENHAFT: You might say, however, to

14 the extent that this particular transaction has an

15 element of Colorado law and I am not admitted there,

16 I am going to rely on and associate with the Colorado

17 lawyer, get a Colorado opinion.

18 That is a very usual aspect of practice, as

19 well. Particularly with regard to formalities of

20 closing transactions that may depend upon local law,

21 you may want to do that. So I think there is some

22 element of client awareness in that context.

23 MS. NEEDHAM: To the extent they are aware

24 of it, it probably seems a lot better. To have a

25 local lawyer and a lawyer that you are familiar with












1 and trust. And the explanation of why you are

2 needing both, I don't think has ever been heard well

3 by CEO. As far as I can tell, we were doing one

4 transaction, you could do the whole thing.

5 MR. JENKINS: I find that it depends, in my

6 experience. Often it turns on the sophistication of

7 the client and/or the business folks you are working

8 with. Some of them are very attuned to it and you

9 don't in fact need to tell them about it, they will

10 come to you and say, What are we going to do about an

11 opinion on Iowa law? Particularly if it is an arcane

12 issue, so sometimes, it comes the other way.

13 I will be the first to admit I don't see it

14 that often in the scope of what I do from my little

15 corner of the world. More often than not, my antenna

16 is up and I am trying to be sensitive where I need to

17 advise the client that here is a situation or an

18 aspect of the representation where we need local

19 counsel to give us some guidance.

20 MR. WOODS: One thing that was discussed at

21 our last meeting, again approaching this from the

22 perspective of the client and carving out for the

23 moment the area of litigation is, why should the

24 client have to incur that double hit, so to speak, in

25 a transactional matter where the individual who is












1 retained, albeit perhaps not licensed in California,

2 is fully versed on the law and able to represent the

3 client without having to associate with local

4 counsel.

5 I think the people that were at our last

6 meeting recognized that there was a difference with

7 respect to litigation. For instance, knowledge of

8 local rules. And that none of us would go into a

9 foreign jurisdiction without, at least to some

10 extent, local counsel in the litigation environment.

11 MR. JENKINS: Here is an example for me in

12 the real estate area. I am sometimes asked to

13 represent lenders who are financing, providing

14 financing for transactions that cover several

15 jurisdictions. The facilities or the assets are in

16 disparate locations. Well, I don't always know in a

17 particular jurisdiction what kind of opinions you may

18 have to give on qualifying to make the loan or do the

19 transaction. So to me, it is a situation where I

20 have got to get local counsel to talk to me about

21 those kinds of issues.

22 MR. WOODS: Either that or reporting

23 requirements.

24 MR. JENKINS: Yes, right.

25 MR. WOODS: But what we were all saying is












1 again, maybe it is the concept of self-policing. You

2 understand that and so in those situations, you have

3 the wisdom to say to the client, We need to get

4 somebody in Omaha, Nebraska, who is familiar with

5 their recording rules or something of that nature.

6 But there may be an instance where you don't need to

7 have association with local counsel to help you on a

8 particular real estate matter.

9 MR. WHISLER: Anthony and I were talking

10 over break. Clay County, Missouri is just across the

11 river from Kansas City. I am licensed to practice

12 there. I would never try a case in Clay County

13 unless I had a Clay County lawyer sitting there with

14 me. Tell me about the judges and sometimes they do

15 and sometimes they don't. That is driven by

16 malpractice concerns. It is not where I am licensed,

17 it is can I do a good job.

18 To answer John's question, as a member of

19 the state bar, both as MDP and MJP, we have never

20 heard of it, were it not for the ABA. It would never

21 have come to us as something to think about. It is

22 not a concern in Missouri. I have more concerns than

23 other people because I do national and international

24 stuff but, but for the two commissions, we have never

25 talked about it.












1 MR. EHRENHAFT: You have just raised the

2 dirty word that I wanted to talk about, which is the

3 word international, because we do have also, as part

4 of our committee, to think about the international

5 implications of this matter. In that regard, there

6 are two things. One is, of course, there are foreign

7 clients that would like to retain Americans because

8 Americans practice in a certain way and do counsel

9 clients with a certain approach, draft documents in a

10 certain style that many clients recognize as the best

11 in the world and they want that kind of advice.

12 For example, when an Italian company wants

13 to do business with a Japanese company, the Japanese

14 don't speak Italian and Italians don't speak

15 Japanese. Therefore, both of them are as likely as

16 not to retain American lawyers to draft documents in

17 English that they both can read and understand; and I

18 have been in many such transactions.

19 So there is a real market for American

20 lawyers to pursue this very interesting practice but,

21 of course, out of the total number of lawyers in

22 America, it is a small number. Nevertheless, it is

23 not totally insignificant.

24 And Commence Department figures indicate

25 that last year, for example, the value of American












1 legal services exported abroad were valued at $2.8

2 billion, which is not small change. My own view is

3 that $2.8 million is probably only 50 percent of the

4 correct number, because a lot of the amounts that

5 are, in fact, exported legal services are not

6 recorded in the balance of payment techniques that

7 are used because transfers between affiliated

8 companies, for example, are not recorded. So

9 receipts by foreign officers of American law firms

10 from foreign clients are not included in that number,

11 although I think, conceptually, they really aught to

12 be.

13 We are talking about not an entirely small

14 number and there is certainly an interest in the

15 American legal services market to export our

16 services. We say we have got so many lawyers we have

17 got to export some of them. We have got surplus

18 wheat and surplus lawyers. We also have a

19 comparative advantage in terms of what legal work

20 foreigners want.

21 The USDR is very anxious to assure American

22 lawyers greater opportunities to practice abroad.

23 And under the General Agreement on Trade and

24 Services, the GATT 2000, negotiations are starting

25 now. They were actually started in March of this












1 year on opening foreign markets to 12 principle areas

2 that have been selected by the USDR for immediate

3 attention. These include express delivery services

4 like FedEX; they include certain financial services,

5 Telecom and legal services.

6 Legal services is one of those that we want

7 to promote. However, if you want foreign countries

8 to allow American lawyers to be able to go there and

9 practice as lawyers, you have got to say your lawyers

10 can come here. And on that score, the United States

11 is not in a very good position. Less than 50 percent

12 of the states of the United States have adopted

13 foreign legal consultant rules, which is kind of the

14 minimum basis upon which foreign lawyers aught to be

15 allowed to practice. That is a more restrictive

16 basis than the kind of stuff we have been talking

17 about for cross-state practice, but I don't even know

18 whether Missouri and Kansas have foreign legal

19 consultant rules. Does anybody have that?

20 MR. HOLTAWAY: Not off the top of my head.

21 MR. EHRENHAFT: Anyway, if you don't, I hope

22 that one of the things you can think about is whether

23 you can follow the ABA's -- and the ABA is on record

24 in urging all state bars to have foreign legal

25 consultant rules adopted in their jurisdictions. The












1 fact that we can't even say that half of our

2 jurisdictions allow foreign legal consultants is a

3 real detriment and barrier to our ability to request

4 foreign countries to allow access to our lawyers.

5 MS. NEEDHAM: Would that alone be sufficient

6 or is there --

7 MR. EHRENHAFT: That would go a long way.

8 In the jargon of the GATT, there are four ways in

9 which services are delivered. One is that you

10 actually go to the foreign place and hand it over.

11 Two is that the foreigner comes to your place and

12 gets it. Those are modes one and two, but those two

13 modes are not really on the table.

14 The two modes that are important is mode

15 three, which is establishing an office in the foreign

16 country and that is where foreign legal consultant

17 rules are important. There are probably not more

18 than 100 U.S. law firms that want to open offices

19 abroad, but a most recent survey indicates that there

20 are close to 375 offices in foreign countries now

21 operated by U.S. law firms, which is not an

22 insignificant number. Most of the people who are in

23 those offices are actually not Americans but are

24 locals, but they are all managed by Americans so that

25 is the one population.












1 The foreign legal consultant rule

2 essentially addresses the possibility that foreigners

3 could come here and open offices here in that same

4 way without taking a bar exam. That is what the

5 foreign legal consultant rule is. It would allow

6 foreigners to come to the United States, open an

7 office, hold themselves out as foreign legal

8 consultants, which we suggest should also be based on

9 competence. That is, they should be able to practice

10 whatever they are competent and allowed to do in

11 their home country.

12 So if they are a Hungarian lawyer but they

13 also know Czech law or English law and you could

14 practice that in Hungary, then you should be able to

15 practice Czech and English law in the United States,

16 too. The only prohibition would be you can't

17 practice in Missouri certain aspects of Missouri law

18 unless you are a partner or associate of a Missouri

19 lawyer.

20 MS. NEEDHAM: There are a couple of little

21 pieces. One is that I know Washington, and a number

22 of the other states that didn't have foreign legal

23 consultant regulations, have not licensed very many

24 people at all.

25 MR. EHRENHAFT: The reason for that is that












1 the foreigners take the bar exams here.

2 MS. NEEDHAM: They go ahead and become

3 members.

4 MR. EHRENHAFT: And that is because they all

5 speak English and they can take the bar. Whereas,

6 American lawyers don't speak Slovakian, Hungarian,

7 and Japanese so they can't take the bar exam abroad.

8 So there are thousands of foreign lawyers who have

9 passed the bar and that is why, as a practical

10 matter, it is not merely as important as the

11 perceptional matter and the regulatory matter that we

12 have these rules on the books so that we can say they

13 can come here.

14 MS. NEEDHAM: It seems to me in terms of the

15 perception of the local bar in terms of adopting

16 changes, it is not like there is going to be a tidal

17 wave of people taking advantage of it.

18 MR. EHRENHAFT: To illustrate further what

19 you are saying, Carol, the Colorado Supreme Court was

20 poised to adopt the foreign legal consultant rule on

21 the initiative of the Colorado Bar Association. They

22 received from the Colorado Bar Examiners a statement

23 that, Why do we need this? There is nobody who has

24 applied for to Colorado to be a foreign legal

25 consultant so let's not give us more work to do or












1 create a further regulation.

2 On that basis, apparently, they decided they

3 wouldn't adopt the rule. It is true, there is very

4 little likelihood that there are going to be 1,000

5 Japanese suddenly coming to Kansas City to open their

6 offices here to take away all the work in Kansas

7 City.

8 MS. NEEDHAM: The other thing, I am sure you

9 have even more information that I have, it is

10 astounding to me how many of the foreign legal

11 consultants actually perform work for the nationals

12 of that country who have immigrated here to the U.S.

13 So people were, for example, inheriting properties in

14 the other country and the foreign legal consultant

15 was handling their appeal, the claim to their

16 grandfather's estate back in the other country or

17 handling business issues that related really to the

18 people who had immigrated from that country.

19 No U.S. lawyer could possibly know the

20 intricacies of estate planning in Hungary as well as

21 the lawyer who had been trained in that. I don't

22 think there is a whole lot of lawyers who would

23 legally pick up that because you know you are not

24 competent to do it. So that whole discussion was

25 premised on this big business but it was describing












1 to me that the whole access of the delivery of

2 services to not even necessarily middle class, but

3 working class and striving people, really it is

4 implicate. It is important the only reason it is

5 complex because New York apparently never comes up

6 with a here is who is right now trafficing as a

7 foreign legal consultant and the --

8 MR. EHRENHAFT: There is no requirement to

9 maintain an office.

10 MS. NEEDHAM: Right. The point is that in

11 New York, because anyone who has ever applied is sort

12 of carried on for 20, 30 years, since 1974, they have

13 had their standards to have gone back to that foreign

14 country. You don't know how many people you are

15 going to deal with in New York because there is no

16 current --

17 MR. EHRENHAFT: Carol, that same is true

18 with regard to membership of the bar. The New York

19 State will keep people, quote, members of the bar,

20 but whether you are an active member of the bar

21 requires payment of $150 a year. So some of those

22 foreign legal consultants who were inducted or

23 whatever, they also have to pay that if they want to

24 keep active and probably I think that information can

25 be obtained. You have to ask about the active dues












1 paying ones and then you will see. I think there is

2 something like 500 foreign legal consultants that

3 have been registered in New York, of which they think

4 that there may be 200 presently practicing.

5 MS. NEEDHAM: Right.

6 MR. JENKINS: Let me educate myself a little

7 bit on this. Let's suppose two months from now,

8 every state in the union adopts a policy, or

9 whatever, permitting foreign legal consultants.

10 Would your expectation be then that the number of

11 registered foreign legal consultants would increase?

12 MR. EHRENHAFT: It would increase very, very

13 marginally because the fact is that the 24

14 jurisdictions which have foreign legal consultant

15 rules are in each of the states where there is

16 probably the greatest interest of foreigners. That

17 is New York, Michigan, Illinois, California, Texas,

18 and so on.

19 And we have often been told when the

20 Japanese raze us, Well, you don't have it in all

21 jurisdictions. Well, if any Ben Goshi wants to

22 practice in Boise, Idaho, you let us know and we will

23 push it through the Idaho court. And there has never

24 been anyone accepting that challenge. So I don't

25 think that it would have a tremendous practical












1 impact on the American practice. What it would have

2 an important impact on is our ability to request that

3 foreigners open their doors to American lawyers

4 whether they are from Idaho or wherever.

5 MR. JENKINS: Is it something that non-U.S.

6 signatories to the GATT are asking for or demanding?

7 MR. EHRENHAFT: Absolutely, yes.

8 MR. JENKINS: As a quid pro quo for opening

9 their market.

10 MR. EHRENHAFT: That is the way these

11 international negotiations operate. That you

12 exchange concessions, if you will, or market opening

13 concessions. In the past, the GATT opened the market

14 by reducing tariffs and eliminating quotas on goods.

15 Now that the services are included in the same

16 regime, the regulatory barriers to service are the

17 equivalent of tariffs.

18 MR. JENKINS: I understand. The reason I

19 was asking these questions is because it struck me

20 that if it has no practical effect or benefit in

21 terms of increasing the number of foreign legal

22 consultants in the United States, is it more symbolic

23 from their side of the bargaining table? It seems

24 they are saying this is important to them, but maybe

25 it isn't in the practical sense.












1 MR. EHRENHAFT: It isn't in the practical

2 sense, but it is an excuse that they have to close

3 the market to our people. So our interest is

4 primarily that we have a real interest in exporting

5 legal services to foreign countries and we don't want

6 to give them that excuse. But this is all Mode

7 Three.

8 Mode Four is transitory services and that is

9 a more significant aspect of international practice.

10 There may be only 200 American lawyers practicing

11 abroad and 400 American lawyers practicing in all

12 these foreign offices of American firms, but there

13 are tens of thousands of American lawyers who go for

14 short periods of time to foreign countries as I do,

15 as many others do.

16 Of the 12,000 members of the ABA's

17 international law section, I would bet that at least

18 70, 80 percent occasionally travel to foreign

19 countries and practice law there. Foreign countries

20 have the same unauthorized practice rules as the

21 United States does. We want to assure in the GATT

22 that there will be an exception for transitory

23 services, and lawyers by no means are alone in that

24 request.

25 There are doctors; there are accountants;












1 there are architects; there are engineers; actuaries;

2 all kinds of professional services. And there are

3 two issues that are going to be discussed in the GATT

4 negotiations on what is called a horizontal basis, as

5 distinguished from a sectorial basis. That is, is

6 the rule going to be applicable to all service

7 sectors? Legal services is a vertical sector. The

8 rule about transitory entry is going to be a

9 horizontal issue applicable to all kinds of

10 professions.

11 The idea is that each country will commit

12 that professionals licensed as such by their home

13 country will be permitted to enter to provide

14 temporary professional services of that same type in

15 the GATT countries. Now, can the United States sign

16 onto something that it is demanding of all these

17 countries when our rules not only don't allow a New

18 Yorker to go to Kansas, but then how are they going

19 to allow a Kenyan or a Britain or so on to come in on

20 that basis?

21 Is it conceivable that we would have a more

22 liberal rule for foreigners than we have for our own

23 citizens? Yet that may be one of the consequences of

24 this GATT negotiations. And this is not something

25 that is hypothetical; this is going on this month.












1 So I think it is an issue that we would like to hear

2 what the state bars are going to do. What is their

3 view of that kind of a situation?

4 MR. RAMIREZ: Kind of a reverse equal

5 protection problem.

6 MS. NEEDHAM: Or reverse privilege of

7 immunity.

8 MR. EHRENHAFT: Well, the problem is this.

9 That in fact, the USDR probably will not offer more.

10 Because they will say, We can't offer this because we

11 have no ability to do so. And that may then prevent

12 the United States from obtaining the benefits of

13 something that so many lawyers in transactions really

14 think that they need and want. We don't want to be

15 arrested in France.

16 MR. JENKINS: I don't know. Does any of

17 this resonate with practice in this locale? I don't

18 know how much international legal work goes on in

19 Kansas City.

20 DEAN POWELL: We have pharmaceuticals,

21 engineering, and agribusiness; and all three of those

22 are very powerful.

23 MR. RAMIREZ: My brother lived in Liberty,

24 Missouri but he has been employed by Bayer and he

25 spends half the time in Germany.












1 DEAN POWELL: And also Sprint has world-wide

2 operations.

3 MR. RAMIREZ: Is that why my Sprint phone

4 works here?

5 MS. NEEDHAM: And a number of other business

6 companies in St. Louis.

7 MR. WHISLER: My partner was in Geneva last

8 week at a world aviation show and we took out a full

9 page ad in the trade magazine. There is more than

10 you would think. We probably violated several laws

11 by taking that.

12 MS. NEEDHAM: Actually, in some ways, it is

13 interesting because that brings us back to lawyers

14 are not necessarily concerned about it but the fact

15 that they are doing it and it doesn't register that

16 they are doing anything wrong because it is not

17 fundamentally improper. It doesn't violate any

18 ethical rules. I don't want to get off that --

19 MR. RAMIREZ: I live in Las Cruces, New

20 Mexico, 40 miles away from El Paso, Texas. I go once

21 a week to El Paso to take a deposition. You know,

22 the doctors are down there, there is a witness or

23 whatever. Isn't that unauthorized practice of law in

24 the State of Texas?

25 MR. EHRENHAFT: Well, the transitory entry












1 on the international scene has implications on

2 immigration law, which is one of the really difficult

3 aspects to it. But, in fact, when most of us travel

4 to a foreign country, we get a tourist or a business

5 visa which is similar to the U.S. business and/or

6 tourist visa. Those visas specifically prohibit you

7 from engaging in work for remuneration in the country

8 that you are visiting. So that all of the foreigners

9 who come here on behalf of Bayer, who come here and

10 work and get paid and so on, they are violating U.S.

11 immigration law and the Immigration Service looks the

12 other way. They are not really interested in

13 cracking down on it.

14 But we are similarly violating foreign

15 immigration laws when we enter and the only people

16 who seem to care at all are the Canadians, who hassle

17 American lawyers from time to time about pointing out

18 that NAFTA has not guaranteed that lawyers from the

19 United States can go up to Canada and just practice

20 law without being licensed. But you can josh them

21 and say, Well, I am not going to be paid here, I am

22 just here to talk to some client.

23 But, in fact, this is an overlay, but I

24 don't suggest that your association, or that we, get

25 into that separate issue. We just want to look at it












1 from the point of view as regulation lawyers that

2 immigration law, I think can be handled if there was

3 commitment that this kind of temporary access by

4 professionals were permitted. We are talking about a

5 GATT visa that would specifically reference modes for

6 delivery of professional services as an exception to

7 the immigration rules, I think the United States

8 would probably accept that, too.

9 MR. RAMIREZ: Is there a perception, or

10 maybe a reality, that this is an issue that only

11 affects a very small number of lawyers?

12 MS. NEEDHAM: I think only a small number of

13 lawyers are aware of it but the more you explain to

14 people, the more they realize, Oh, that is me. In

15 fact, a number of really small firms have said to me

16 -- in fact, one in particular.

17 You were talking earlier about family

18 practice and they were saying they had divorce cases

19 across state line where one spouse wants to move out

20 of state or family estate planning issues where there

21 was real estate held out of the estate or one of the

22 parents now live in a different state but what

23 actually sounds like -- really small, close to home.

24 These were people that practice in very small offices

25 or people who were sort of the Norman Rockwell type,












1 like they could literally walk to work in a small

2 town, having issues cropping up with

3 multijurisdictional practice. The thing is they don't

4 necessarily run into any road blocks because of it

5 except for their own conscience. Nobody is policing

6 it or cracking down on it yet, but it is there.

7 DEAN POWELL: Carol spoke earlier about many

8 lawyers not being particularly concerned because of

9 the conduct of doing what they normally do does not

10 violate ethical norms and I immediately thought that

11 not only does it not violate any ethical norms in the

12 sense that it doesn't cause any bells and whistles to

13 go off, but from the other side, when you look at it,

14 it is absolutely necessary for lawyers to do the

15 things they are doing. They are not economically

16 viable, they are not really lawyers unless they are

17 willing to do those things.

18 So when you have a situation in which you

19 have people who are dedicated to the law and are

20 trying to do the right thing and they suddenly

21 discover that what they are doing is prohibited by

22 some rule, you really get a disconnect.

23 When the comment was made by Larry a few

24 minutes ago -- I can't remember exactly what he said

25 -- but I was thinking, Well, it is not only if you go












1 to Texas and give that opinion that it is a

2 violation, but it is also when you ask the question,

3 Am I violating Texas' law by going into Texas from

4 New Mexico and taking a deposition. And I answered,

5 Yes, you are, then I am violating Texas law, too,

6 because I am giving a legal opinion about what the

7 law is in Texas.

8 This is the level of complexity with which

9 we are dealing and it is absurd.

10 MR. RAMIREZ: Joe knows there is a lot of

11 question about what the law is in Texas.

12 MR. EHRENHAFT: There is only one law in

13 Texas.

14 MR. RAMIREZ: The law of the west.

15 MS. NEEDHAM: Let me just say, that is it

16 exactly to the extent that you are loyal to your

17 client, that loyalty to your client is what puts you

18 in a compromising position with rules and regulations

19 and the loyalty to the client is a good thing.

20 MR. WHISLER: I will say this. People don't

21 really think about this as only applying to a few

22 people. People don't think about this, period. If

23 you bring it up to them, they will think about it.

24 But it is news to us, basically, that anybody even

25 thinks about this stuff.












1 MR. RAMIREZ: A lot of people, the

2 perception is that solo and small law firm

3 practitioners are not impacted by MJP or by MDP and I

4 tend to disagree with that. Just given the number of

5 solo small firm practitioners in the United States,

6 you have to have some impact on them one way or the

7 other, just from a practical setting.

8 MS. NEEDHAM: It is one of the main events

9 at the solo small firm -- Missouri Bar solo small

10 firm practice annual conference May 3rd and 4th.

11 This topic, MJP, is one of the centerpiece issues on

12 the panel and a couple of us are speaking at it and

13 it is of great interest, especially to solo small

14 firms.

15 MR. WHISLER: Actually, Missouri has common

16 borders with more states than any other state in the

17 Union. We have common borders with 7 or 8 states.

18 Arkansas to Iowa to Kansas and Illinois are the big

19 ones, but we touch a little piece of -- I think it is

20 Tennessee, Kentucky, Oklahoma, Arkansas. We are the

21 center of the world.

22 MR. EHRENHAFT: Larry, in the MJP situation,

23 in fact, we were told that part of it was incorrect

24 to believe that the pressure from this was coming

25 only from large firms who wanted to compete; that it












1 was at least as many small practitioners that said we

2 have got to associate with real estate brokers, with

3 tax preparers, with funeral parlors, with other

4 professionals in our towns because they are taking

5 our business away and --

6 MR. RAMIREZ: That is the competitive side

7 of it, but I think that people look at MDP and maybe

8 MJP, too, just from the economic protectionist

9 position and I think you can look at it from the

10 standpoint that solo and small firm practitioners

11 could use an MDP or an MJP to better their practice,

12 to improve the service they deliver. But that is

13 also a separate issue.

14 But what I was going to say was, when I go

15 to El Paso to take the deposition, I don't think

16 about it as having anything to do with the State of

17 Texas, other than just the circumstance of the

18 locale. I am there on a New Mexico case, a New

19 Mexico plaintiff. It is just the circumstances of

20 the fact that they have got a border there that makes

21 me have to go there to do it.

22 So violating the law -- am I really

23 violating the law? Am I violating the intent of the

24 law? No, I don't think so. And if there was harm,

25 who is being harmed?












1 MR. EHRENHAFT: The Texas lawyer that would

2 be engaged to do it if you couldn't.

3 MS. NEEDHAM: But look at the inefficiencies

4 about getting someone else involved.

5 MR. EHRENHAFT: I am not defending it, but

6 if you want to know --

7 MS. GRAY: Certainly, that is why 5.5 has

8 been modified by Ethics 2000, at least to that point,

9 to facilitate the legal representation on behalf of

10 clients who have to go interstate in order to be

11 competent in their delivery of legal services.

12 I had one process question about your

13 committee. I think you said that you are hoping by

14 June to be able to file something with us that will

15 touch on several paramount issues that we are

16 interested in. Are you then going to share this

17 information with the Missouri Bar, itself? Has

18 anything been done to date -- have you had any

19 hearings or quorums?

20 MR. WHISLER: There has been an article that

21 this is going on. This is a committee of the Board

22 of Governors so they report to the Board of Governors

23 and it is the Board's decision whether to pass this

24 on or not. I expect what will happen in our meeting

25 in May is we will tell them what is going on and they



1 will say that sounds fine, go ahead. In terms of

2 town halls or anything like that, no.

3 MS. GRAY: Would you then post it on the web

4 site or announce it to the members that they could

5 comment on it?

6 MR. WHISLER: It will be in the bar journal.

7 We can certainly request comment. We had three or

8 four on MDP. Actually, not a lot of people showed up

9 in town halls so I don't feel any drive towards that

10 now so it will eventually be a report from the

11 Missouri Bar, basically saying what they said. That

12 is how it will work.

13 MR. EHRENHAFT: Talking about process, do

14 you intend to comment on, for example, you are

15 familiar with the ACCA Proposal, with the green card

16 proposal of April, and the driver's license thing.

17 MR. WOODS: The only person who really has

18 not been given an assignment in that respect was Joe

19 because he was not at the meeting. But the rest of

20 us have each been given an aspect to draft to include

21 in the report. I was going to ask Joe to do all of

22 them.

23 MR. WHISLER: You can ask.

24 MR. WOODS: Yes, those all will be covered.

25 MS. NEEDHAM: Let me just point out that the



1 members of the committee are each of them are people

2 who have large constituencies and active roles in

3 other groups so they are hearing from the membership

4 of their respective -- the Kansas City Bar

5 Association, the St. Louis Bar Association, the

6 various groups that they are otherwise active in.

7 MR. WHISLER: Court of appeals judge.

8 MS. NEEDHAM: It is intriguing the levels in

9 which you intersect. I had lunch with a couple of

10 supreme court justices the day before. It was very

11 interesting because I was talking to the incoming

12 chief judge about MJP and he was extremely interested

13 and talked all about it because he was on his way but

14 more information was needed and that struck me that

15 is probably pretty common. Not that people are

16 hostile to it, but that they are aware of it

17 peripherally and haven't yet focused, I would say

18 that characterizes aware of it as an issue and

19 concerned about it as an issue, to the extent they

20 focus very much and would like to get moving on it.

21 MR. WHISLER: Dean Powell knows there was a

22 lot of hostility to MDP. But we are not seeing any

23 of that. Dean Powell did a wonderful job fending off

24 rocks and things.

25 MS. NEEDHAM: The Missouri Bar did a very



1 comprehensive study of where people's opinions were

2 and how they intersected and, in fact, it is just now

3 getting published. The study that was presented to

4 the commission examined the law journal so it is sort

5 of a very extremely thorough, extremely expensive

6 effort to find out why people felt the way they did.

7 So I don't know if we are to do another one, but we

8 can do it.

9 MS. GRAY: I was just curious. If you come

10 forward with some what would be considered very

11 progressive recommendations in your report and you

12 file them with the ABA, and we don't do anything with

13 them, is there a real interest and an energy within

14 Missouri to go forward to your own court?



17 MR. WOODS: The only thing that I did hear

18 thrown out, I think it was interest in this regional

19 compact in exploring that, particularly on the

20 Illinois/Missouri side of St. Louis.

21 MR. JENKINS: Is that part of the same

22 commission's work?

23 MR. WOODS: Well, the commission is supposed

24 to -- I think we are going to have a section where we

25 comment on the existence of a regional compact. And



1 I don't know whether it will go so far to suggest if

2 a compact would work for Missouri and if so, which

3 state should it attempt to negotiate something. In

4 my impression, Kansas would not be receptive to that.

5 But that will be addressed.

6 MR. RAMIREZ: What is the history behind the

7 Kansas and Missouri --

8 MR. HOLTAWAY: It goes back to early 1820.

9 MR. RAMIREZ: I was kidding when I told

10 Burnele about the Civil War.

11 MR. WHISLER: Quantrell did burn down

12 Lawrence and many people think that is a good idea.

13 But really, Kansas City is the big city and the big

14 firms now have offices in Johnson County., and a lot

15 of small firms.

16 MS. NEEDHAM: Which state is that?

17 MR. WHISLER: That is Kansas. It is kind of

18 where everybody went in the '60's, leaving us in a

19 mess in the school system. When I started 30 years

20 ago, there weren't any big firms in Johnson County

21 and the people in Johnson County were up in arms for

22 a while. If I took a deposition in Kansas, I had to

23 have a Kansas lawyer sit there next to me doing

24 nothing. That is the worst it got but it is still,

25 as the judge said, it sounds like they are coming



1 back.

2 DEAN POWELL: As a matter of fact, I was

3 talking to someone just recently who said they had a

4 deposition scheduled in Kansas and that they had gone

5 to the location and were ready to take the deposition

6 and opposing counsel said, You don't have a Kansas

7 lawyer. And he said, What are you talking about?

8 You know me. We have been practicing, etc., all

9 these years. And he said, No, not going to take it.

10 So he had to then call, I think it was a

11 weekend at some odd hour, and connect his partner who

12 was attending a wedding or bowling or doing something

13 relaxing and bring him to Kansas and sit there while

14 he took the deposition because the attorney, his

15 partner, was licensed in both jurisdictions.

16 MR. RAMIREZ: And it is the unauthorized

17 practice of law.

18 MR. WHISLER: That does not happen much.

19 MR. WOODS: I am licensed in Illinois, as

20 well, and when I came back to Kansas City in '79,

21 Missouri had reciprocity so I was admitted to the

22 Missouri Bar by reciprocity. At that time, Kansas

23 Bar also had reciprocity and I forgot how many years

24 after that I was a fool not to try to get it, but a

25 few years after that, they shut the gate on that. So



1 for me to be licensed in Kansas, I would have to take

2 the bar exam.

3 MR. EHRENHAFT: I represented a Florida

4 company against a German company that was a supplier

5 in a termination of distributorship and the German

6 defendant was finally persuaded by his American

7 lawyer to come to Florida to be deposed. We had

8 Florida counsel. And I went to the deposition and

9 the Florida lawyer objected to my participation

10 although I was the only person who could speak German

11 and therefore could understand how the translator was

12 mistranslating what was being said. So we had to

13 take it to the judge. And then the guy got very

14 red-faced because the judge really excoriated him for

15 raising what he thought was an absolutely frivolous

16 objection to my participation in the deposition.

17 MS. NEEDHAM: That is a really important

18 thing. The duty of loyalty to actually represent

19 that client the best way possible is being detained

20 by a very small-minded legalistic in the worst

21 sense --

22 MR. EHRENHAFT: Attempted to; he failed.

23 DEAN POWELL: I think that when Joe

24 mentioned that Kansas City is the big city, that is

25 really the crux of this. States have long asserted



1 concern of whenever it is a situation where they

2 believe that some large economic interest is going to

3 be able to affect one way or another the operations

4 in their jurisdiction.

5 Like it or not, Kansas City, Missouri is a

6 lot larger than any of the other economic centers

7 around this metropolitan region. And I think that it

8 would make a lot of sense to review this entire

9 region as one economic and social region, which is

10 what it is, in fact. But when it comes to the law,

11 it is not treated that way. We treat this as

12 territory or as a pie that is to be divided and you

13 can take your portion and we take our portion.

14 Whether clients are served by that, I think

15 is an open question. How they are served by that is

16 a mystifying question.

17 MR. JENKINS: On that note, let me ask if

18 there are other comments or perspectives, or even

19 anecdotes, that people want to bring before the

20 hearing. I want to give everybody an ample

21 opportunity.

22 MR. RAMIREZ: I just have one matter that I

23 wanted to see if anybody had thought about. And

24 again, this is something that came up in the MDP but

25 really I think it may have an impact here, as well.



1 What if the congress or the legislature, or some

2 other governmental agency other than the courts,

3 became involved in the regulation of the business of

4 law and said that pursuant to their commerce clause

5 powers, they are going to say that you don't need a

6 license in every state or they are going to decide

7 what competence means. Is that something that we

8 need to be afraid of or not?

9 MR. EHRENHAFT: Who would provide such an

10 effort without sponsorship?

11 MR. RAMIREZ: Orin Hatch comes immediately

12 to mind.

13 MR. EHRENHAFT: I don't think so. Honestly,

14 Larry, I don't think that Orin Hatch would view, if

15 you are talking about a national licensure procedure

16 as --

17 MR. RAMIREZ: Say the consumer groups; the

18 Naders of the world. I am not sure there would be a

19 Ralph Nader with regard to this particular issue, but

20 someone that said consumers are not being protected.

21 Lawyers are protecting themselves and the consumer is

22 the one that needs to be protected so therefore we

23 need federal legislation in this area or some other

24 means of regulating the practice of law.

25 MR. WHISLER: Seems to me like the Tenth



1 Amendment would apply.

2 MR. EHRENHAFT: I think there is a good

3 adequate commerce clause argument to be made of it.

4 We have lawyers crossing state lines to represent

5 people if it were to be asserted but --

6 MR. RAMIREZ: The commerce clause was used

7 in the '60's to prevent violations of civil rights so

8 the commerce clause is for a lot of different

9 purposes.

10 DEAN POWELL: This is obviously a scenario

11 where lawyers can have fun because you can speculate

12 about lots of things. So I will say with that

13 preface that I am only speculating, but it does seem

14 to me that the regulation of courts is a peculiar and

15 singular function of the various state jurisdictions.

16 And that because it has historically been, I would

17 anticipate that it always will be.

18 One of the reasons why I think it always

19 will be is because the regulation of the court is an

20 extension of the power of coequal branch of

21 government in most jurisdictions. It goes to the

22 very heart of the capacity of these governing

23 institutions to call themselves states, that they

24 will have the power to determine what the laws are

25 and how those laws are to be interpreted in their



1 jurisdiction.

2 MR. RAMIREZ: That is part of my concern,

3 Burnele, because I have heard the argument that if

4 NAFTA had applied the Bierbauer we would have had a

5 different result in Bierbauer.

6 DEAN POWELL: It is certainly, I think, true

7 that if we could establish some other norms and

8 replace the ones that we presently have, we could get

9 different results. But it seems to me that is really

10 not the question. The question is how stable are the

11 norms we have.

12 MR. RAMIREZ: NAFTA is a treaty. If these

13 guys had been Mexican hired, they would have been

14 unable to collect their fee.

15 MR. EHRENHAFT: I don't think that is

16 necessarily true because the legal services chapter

17 of NAFTA has not been --

18 MR. RAMIREZ: I just am --

19 MR. EHRENHAFT: As a hypothetical, that

20 would be like the GATT story, too. The foreigners

21 would have greater rights than domestics. But in the

22 present situation, it is one of the tragedies

23 actually of NAFTA that while NAFTA is going so well

24 with regard to virtually every covered sector and the

25 three bar associations, the ABA, the Canadian Bar,



1 the Mexican Bar, embraced and said we are going to

2 work together, we are going to open the market. Here

3 it is now six years later and they haven't come to an

4 agreement yet on it. It is one of the few areas

5 where NAFTA has broken down.

6 DEAN POWELL: I would say NAFTA hasn't

7 broken down in that respect because with all due

8 respect to all those bar associations, they are not

9 the authority. The authority is in the courts and

10 the authority in the court is based upon the state's

11 authority.

12 MR. EHRENHAFT: No. The treaty power of the

13 United States, I would suggest, supersedes state's

14 regulatory functions by any agency of the state and

15 NAFTA was a treaty which committed the United States

16 and its states and this is one of the questions

17 whether in GATT they are going to do the same thing.

18 I am doubtful that they will because they got burned

19 in the NAFTA situation. But NAFTA purports to -- you

20 know Missouri versus Hollands?

21 DEAN POWELL: I want to respond. I don't

22 think we have had that case yet. We have not had a

23 case where the United States has attempted to say

24 that by function of the national power to engage in

25 treaties, we are going to, in effect, extract power



1 from the judicial branch in a state. That case has

2 not been litigated before and, at this point, if I am

3 allowed to speculate, I am going to speculate on the

4 basis of each jurisdiction being able to say the

5 judicial power is unique.

6 It is not like the executive authority. It

7 is not even like the legislative authority. In a

8 democratic government such as ours, it is the

9 uniqueness of that judicial authority, its ability to

10 check the excesses underlined, to check the excesses

11 of the two branches, the political, the oriented

12 legislative branch which might very well see all

13 kinds of popular reasons to exceed state authority

14 and the executive branch which can see all kinds of

15 good reasons for efficiency and popularity to exceed

16 state authority.

17 MR. EHRENHAFT: Green versus Covert was the

18 only case where the Supreme Court held, as far as I

19 know, that the treaty power could not be used to

20 override the fundamental rights of Americans. That

21 was the right of trial by jury. The only case and

22 that focused on what the limits of the treaty power

23 in the international context were. I don't think

24 that the power of the judiciary to regulate who can

25 appear before it begins to approach the notions of



1 fundamental rights of Americans the way that Green

2 versus Covert does.

3 DEAN POWELL: I would disagree on that. I

4 would say that goes to the very fundamental question

5 about --

6 MR. EHRENHAFT: Not under qualification of a

7 lawyer to appear in court.

8 DEAN POWELL: Absolutely. I think it goes

9 right down that fundamental level.

10 MR. JENKINS: That will be the last word on

11 it.

12 MS. NEEDHAM: Actually, I have a separate

13 question unrelated to judicial law. Just an

14 observation of this work performed that a non-lawyer

15 could to. To take this to a very mundane level that

16 lawyers aught to be able to certainly do what a

17 non-lawyer could do and the privilege of evidentiary

18 analysis which is going to operate the way privilege

19 analysis goes is that a lawyer should not be able to

20 do less than. To take us out of the whole

21 international atmosphere. That is my personal view.

22 MR. JENKINS: I believe that is one of the

23 proposed safe harbors in one of the models we have

24 been examining. I personally like that idea, too but

25 I think it is subject to counter arguments. It




1 strikes me intuitively that I shouldn't be, quote,

2 unquote, penalized because I have my lawyer hat on

3 and here is another guy who is not a lawyer who can

4 do the very same thing.

5 MR. EHRENHAFT: But the countervailing

6 argument is that when you are a lawyer and hold

7 yourself out as a lawyer, the client and others

8 expect more of you and even though the tax

9 practitioner and the real estate broker and others

10 who might be able to give some kind of advice that is

11 like legal advice, the client doesn't expect the same

12 kind of competence, if you will, and therefore it

13 would not be right to say just because they can do

14 consulting services on this, that, and the other,

15 that lawyers should be able to do it on the same

16 basis. Because you are a lawyer and that is

17 something that you are wherever you are; therefore,

18 the appropriate standards apply to you at all times.

19 MR. JENKINS: Understood.

20 DEAN POWELL: I want to say that I am much

21 appreciative of the commission for deciding to hold

22 this public hearing here in the Midwest and to do it

23 in Kansas City. It has been most illuminating to

24 hear this discussion and I believe that the

25 transcript of this discussion will serve the


1 interests of the legal profession mightily and will

2 reflect admirably upon the work of the American Bar

3 Association, so I thank you for coming.

4 MR. JENKINS: We appreciate being here and

5 invited. You were out of the room when we started

6 our discussion, but I did want to put on the record

7 that we very much appreciate the law school hosting

8 us and particularly your work and that of your staff

9 in coordinating everything for us. It has been a

10 great experience and we really appreciate it. With

11 that, I guess I will close us out. I want to thank

12 you all for coming out and sharing your perspectives

13 and helping advance this whole discussion. Some of

14 you I will see, no doubt, in Miami or whenever our

15 paths next cross. Thank you.


1 C E R T I F I C A T E





) ss:



6 I, Debbie Haney, Notary Public, with offices

7 at 1930 Commerce Tower, 911 Main Street, Kansas City,

8 Missouri 64105, do hereby certify that I was present

9 at the taking of the proceedings as set forth in the

10 caption sheet hereof; that I then and there took down

11 in shorthand the proceedings had thereat, and that

12 the foregoing 101 pages constitute a true and correct

13 transcript of such notes made by me at said time and

14 place.


16 IN WITNESS WHEREOF, I have hereunto set my

17 hand and seal, this _____ day of May, 2001.







24 Debbie Haney

Notary Public