Thomas M. Madden Comment on the Interim Report of the Commission on Multijurisdictional Practice - Center for Professional Responsibility

Law Offices of
Thomas M. Madden, Esq.
One Davol Square
Providence, Rhode Island 02903
401.455.0001 (telephone)
401.455.0002 (telecopy)
law@tmm-esq.com

Member Rhode Island and
New York Bars

March 14, 2002

Wayne J. Positan, Chair
ABA Commission on Multijurisdictional Practice
c/o John A. Holtaway
ABA Center for Professional Responsibility
541 North Fairbanks Court, 14 th Floor
Chicago, IL 60611

Re: Comment on the Interim Report of the Commission on Multijurisdictional Practice Paragraphs 3.5 and 3.6/Proposed Model Rules 5.5(c)(5) and (6) and Paragraph 3.8/Proposed Rule 5.5(d)(2)

Dear Chair:

In reading the Interim Report of the Commission on Multijurisdictional Practice (the "Report"), I wondered what consideration, if any, the Commission on Multijurisdictional Practice had given to the issuance of legal opinions, or closing opinions, in transactions where counsel for a home state client (where counsel is admitted) may, in the course of performing due diligence to back an opinion, encounter a contract or regulation governed or promulgated by another state (where counsel is not admitted), which through counsel’s own research counsel is comfortable opining on as valid and enforceable or applicable or not applicable as the case may be.

Would an opinion including an opinion involving the law of the other state be covered by the safe harbors of proposed Model Rule 5.5(c)(5) or (6) included in the Report? Why or why not? How would this relate to the not unheard of practice of New York counsel opining on Delaware corporate law?

Also, would in-house counsel be within the Report’s safe harbor of proposed Model Rule 5.5(d)(2) in opining on the law of any jurisdiction (where counsel is not admitted) where such counsel’s employer does business?

I believe some discussion of this in print would be beneficial -- or has this issue already been run through the mill?

Please do not hesitate to contact me with any questions or comments.

Regards.

Very truly yours,
/s/ Thomas M. Madden
Thomas M. Madden, Esq.
TMM/tmm