Fred Hopengarten Re:MJP Reform Comment - Center for Professional Responsibility

From: Fred Hopengarten [ k1vr@juno.com]
Sent: Tuesday, February 05, 2002 10:30 PM
To: Ehrenhaft, Peter; mtucker@feldesmantucker.com
Subject: MJP Reform Comment

Background

The Washington Lawyer, February 2002, page 28, mentions that you sit on the ABA Commission on Multijurisdictional Practice (MJP). The MJP issue is of great concern to me. My first bar admission was to the District of Columbia Bar (1972). My second admission was to the State of Maine Bar (1972). Though I reside in Massachusetts, where my wife is a practicing physician, I am not admitted elsewhere.

I am engaged almost exclusively in within the general area of communications law, more specifically as a lawyer representing people who want to put up a tower, a very narrow (but tall) field law. (I do other things too, such as managing the medical practice owned by my wife, which has six clinicians.)

Almost every question of state law that arises in the field of tower law is ancillary to the question of whether federal preemption applies, either under a statute or FCC regulation. Wherever they may be located in the United States (though I have recently consulted on radio tower matters in Canada, Bermuda and the Republic of South Africa), I routinely answer questions and guide people with respect to fundamental approaches to objections to the erection of radio towers, and Federal preemption in the field of tower law. I am the author of the only book ever written (to my knowledge) on Antenna Zoning.

The book, published by the American Radio Relay League, may be ordered through them (for a description and ordering information, see Antenna Zoning for the Radio Amateur, http://www.arrl.org/catalog/?item=8217) .It is also available from half a dozen other sources.

This introduction is important to the question of MJP, because I have actually never handled a DC tower case!

What I Communicate to Prospective Clients

I maintain a permanent presence in Massachusetts, where I have never been admitted to the bar. I present a letter explaining the terms of my representation to each prospective client, which makes it clear that I am not admitted in the client's state (except for cases I have handled in Maine!). As it appears as an exhibit on the CD-ROM accompanying my book, it is hardly a secret, and I attach it to this e-mail. I suspect the approach is a bit different than what you may have seen elsewhere.

Discussion Points

* The rules for admission to appear before the Federal District Court here in Boston, where one is presumably not practicing entirely local law (due to jurisdictional requirements), require that one be admitted to the Massachusetts Bar. While an argument can be made for maintaining a bar that is competent in state law, that consideration should not apply to appearances on Federal law, or choice of law, matters in a Federal District Court.

* While an argument can be made for assuring that a lawyer be subject to some disciplinary body, there is no compelling need for the body to be based within the state of residence. As a parallel, recall that the FDA polices drugs on a national basis, bringing uniformity to the process. Reciprocal discipline can also be effective. In addition, in this internet age, disciplinary actions against a lawyer could easily be listed (and should be) on a single, multijurisdictional URL.

* Like many lawyers, I am frequently retained for my expertise (I wrote the book in my subject area) and not my winsome smile. I have had many clients that I never met, or did not meet until long after having been hired -- on the evening of the tower hearing. I recall completely resolving one matter for a client in the State of Washington entirely in writing, using only the internet and FAX'es. I recently handled a matter with an internet-savvy client where even FAX'es were unnecessary, as everything was an attachment, and what would have in prior times been a FAX was scanned and sent to me as a PDF file or the like. Where a client is fully informed about the admissions of an attorney, and can be said to have made an intelligent and knowledgeable waiver of a requirement for admission to a particular state bar, why is it necessary to add to the client's expense, and to perhaps delay or to dilute the advice provided by specialized counsel by requiring a local lawyer to participate?

Conclusions

Required admission in each state where a lawyer practices is against the best interest of a client who needs special knowledge, due to added cost and the cumbersome mechanics of local co-counsel.

While new mechanisms for policing the behavior of lawyers may be necessary, clients should not be punished until those new mechanisms are invented. With reciprocal discipline, easier in these days of the internet, discipline need not be applied by the state of lawyer residence.

Federal Courts should accept a valid admission from any Federal jurisdiction for private, as well as government, lawyers.

A Request to Forward

I would ask that you forward these remarks to any committee or commission studying the subject.

Atty. Fred Hopengarten hopengarten@post.harvard.edu
Six Willarch Road *
Lincoln, MA 01773-5105
781/259-0088 *eFax 419/858-2421