This statement provides comments for the Bar Association of the District of Columbia (BADC) on the Interim Report of the Commission on Multijurisdictional Practice (MJP) of the American Bar Association. The statement was approved by the BADC Board of Directors on March 12, 2001.
The BADC has 2,100 members, principally attorneys with practices in the District of Columbia and other parts of the Washington, D.C., Metropolitan Area. The Association has had a continuous existence as a voluntary association of lawyers in the Nation’s Capital for more than for 130 years.
The BADC first expresses its gratitude to the members of the MJP Commission for their time-consuming, uncompensated, work on behalf of the bar and the public in examining multijuridictional practice, soliciting comments from interested persons and organizations, and fashioning recommendations to provide guidance to lawyers in their service to clients across state boundaries.
Focusing on proposed new Rule 5.5, however, we prefer the shorter and more MJP-friendly version offered as an alternative to the Commission’s proposal by the American Corporate Counsel Association and other bar organizations (the so-called "Common Sense Proposal"). We find it easier to understand and apply than the "safe harbor" approach of the Commission, and more positive in its recognition of the benefits to clients from being able to call on their lawyers for temporary non-litigation services in jurisdictions other than those in which the lawyers are admitted to the bar.
We also recognize that the Commission’s proposed Rule 5.5 is a substantial advance over the vacuous Rule 5.5 presently in the Model Rules. Our concerns with the safe harbors in the Commission’s proposed Rule 5.5 principally center on subsections (i) and (ii) of Section (c)(5).
This paragraph of the proposed new rule appears to limit the right of lawyers to meet the needs of their clients to only those of their clients who live in or have an office in the jurisdiction which the lawyer is admitted to practice (most likely also the jurisdiction where the lawyer’s office is located). No reason is stated for the distinction between service to clients located in the same state as their lawyer and those located in other states, except the unsupported conclusion that the limitation is "reasonable."
We recognize that service to clients who are located elsewhere than their lawyer may fall under Rule 5.5(b), permitting generally service to such clients "if the lawyer’s services do not create an unreasonable risk to the interests of the lawyer’s client, the public or the courts." But in confining the specific illustration in §(c)(5)(i) to services to a client located in the same jurisdiction as the lawyer, the proposed Rule suggests that extraterritorial services to clients in other jurisdictions are more dangerous, and need to be held to a more exacting standard, than extraterritorial service to clients in the lawyer’s own jurisdiction. Moreover that standard is vague, undefined, and difficult to apply.
The District of Columbia is a territorially-small commercial and employment hub of a metropolitan area of more than 4 million persons. Less than 14% of those persons live in the District of Columbia, though the District has more lawyers than all but a few of the largest states. Obviously, D.C. lawyers do not serve only or even primarily clients in the District of Columbia. They serve numerous suburban residents as well as clients throughout the country.
A lawyer licensed only in the District of Columbia, with an office in the District of Columbia on the street that forms the boundary with Maryland, would not be protected by §(c)(5)(i) if he or she should provide legal advice at a lunch with a client at a restaurant on the other side of the street--unless the client happened to be a resident of the District. A lawyer in D.C. with a client in California in the lawyer’s specialized area of expertise would not be protected by §(c)(5)(i) if he or she responded to a request from the client for representation in California, or in any of the other fifty states, as part of a business transaction or contemplated transaction of that client.
These arbitrary distinctions based on the residence or office location of the client make no sense. They fail to accord to clients the right to select the lawyers they deem best able to serve them. They fail to recognize that location of the lawyer is only one of a number of considerations in lawyer selection by clients, often a minor one. Knowledge and experience of the lawyer and ability to meet the client’s needs is the primary consideration. Knowledge of the law of the client’s state of residence is often a minor consideration, or may be a non-existent consideration if that law is not even applicable.
If it is applicable, the lawyer is presumably capable of research and analysis, and has available the tools of modern electronic research. The lawyer must, in any event, be satisfied under Rule 1.1(a) of competence to provide the representation required. If the lawyer fails to provide competent representation, or in any other way mis-serves the client, the lawyer is made subject by Model Rule 8.5, proposed by the ABA Ethics Commission and endorsed by this Commission, to the disciplinary rules and processes both of the lawyer’s home jurisdiction and of the jurisdiction in which the services were rendered. The BADC fully supports and endorses the proposed new Rule 8.5.
This paragraph limits the right of clients to select the lawyers they deem best able to meet their needs to matters that have a "substantial connection to a jurisdiction in which the lawyer is admitted to practice." That is an unreasonable restriction in these days of interstate transactional practice. The language should be changed to require only a "substantial connection to the lawyer's practice in a jurisdiction in which the lawyer is admitted."
Assume a District of Columbia lawyer with a longtime corporate client chartered in Delaware and headquartered in Pennsylvania, that wishes its lawyer to be present with its corporate executives at one of its operational facilities, in Baltimore, to meet there with executives and attorneys for a Virginia corporation to discuss a potential joint business venture in New Jersey.
This sort of multistate negotiating session is not uncommon in today’s business environment. Yet Rule 5.5(c)(5)(ii), if adopted in Maryland, would not recognize the right of that client to the services in Baltimore of the lawyer most likely to be familiar with its organization, business, and objectives, having the confidence of its principals, because there is no "substantial connection" of the matter with the District of Columbia.
A more realistic formulation of Rule 5.5(c)(5)(ii), which is the one we suggest to this Commission, is found in the Restatement of the Law Governing Lawyers. It recognizes a client’s right to a lawyer’s services in a jurisdiction in which the lawyer is not admitted if the lawyer's services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted. We note that similar changes in the wording of §(c)(5)(ii), to substantially the language of the Restatement, have also been recommended by the ABA Section of Business Law and the Federal Communications Bar Association.
We appreciate the opportunity afforded to us by the Commission to make our views known on the matters of great importance to the bar and the public that are pending before it.
John Gordon Forester
Bar Association of the District