Dear Mr. Holtaway:
The following are comments on the language of the Interim Report on Multijurisdictional Practice from the viewpoint of a manager who retains counsel all over the nation:
With respect to Recommendation 3.6, the services rendered should not be limited to "on a temporary basis" with respect to federal or international law. Many firms with particular federal or international expertise represent out-of-state clients over very long periods of time. The biggest example of this may be the Washington firms that do securities, FTC, or other government agency work. The vast majority of their clients are not D.C.-based and yet these firms are not subject to discipline in the states where their services are retained. Their clients, largely sophisticated corporations, do not seem to be particularly bothered by this. If we had to choose local counsel for these permanent ongoing relationships, our choices would be severely limited. We recently involved both local and Washington counsel in a FTC matter and ended up incurring about 3 times the legal fees we should have had because of it.
As to intellectual property lawyers, the use of the words, "on a temporary basis" in 3.6 would contravene (and be pre-empted by) the U.S. Supreme Court's holding in the Sperry case since the attorney admitted to the Patent Office was held not to need Florida bar admission even though he lived permanently in Florida. Furthermore, patent and trademark lawyers are subject to discipline by the Patent and Trademark Office rules in addition to the rules of whatever jurisdiction they are admitted in. Thus, the "on a temporary basis" language should not apply to attorney-client relationships that are based on federal or international law. This language will result in the same ambiguity that currently exists regarding these areas of practice. Again, our company never evaluates legal services in the Intellectual Property arena based on admission to the state where we are headquartered.
With respect to Recommendation 3.7 re: in-house counsel, the lawyer's multijurisdictional practice should not be limited to "jurisdictions where the lawyer does not maintain an office" as described in the first sentence. Later language in 3.7 describes "permanent" practice in any state where the organizational employer has an office. The states cited permit an established office for the lawyer in the host state. See, for example, the Ohio rule, re: registration of corporate lawyers admitted in other states, but working in corporate offices in Ohio. With the number of corporate transfers and office relocations occurring today, it is not practical to limit this exception to states where the corporate lawyer does not maintain
Legal Affairs Manager