Prof. Gregory C. Sisk
Direct Dial: (515) 271-4184
June 27, 2001
Mr. John A. Holtaway
Center for Professional Responsibility
American Bar Association
541 North Fairbanks Court
Chicago, IL 60611-3314
Re: Written Comments for Commission on Multijurisdictional Practice Hearing on August 3, 2001
To the Commission on Multijurisdictional Practice:
The practice of law today is increasingly an interstate one and every sensible observer must acknowledge that there are many circumstances where a lawyer admitted to practice in one state may properly practice law temporarily or episodically in another state, such as when a lawyer obtains proper admission pro hac vice before another state’s tribunals, when a lawyer representing a regular client located in one state is required to handle a matter that touches upon another state or involves interaction with out-of-state parties, or when a lawyer represents a client or multiple clients without a single fixed location. For these reasons, developing an ethical framework that acknowledges appropriate and inevitable extra-territorial practice of law is a project whose time certainly has come.
At the same time, I suggest that proposals to move toward nationally licensing of attorneys or to substantially unravel restrictions on practice of law within each state for those not licensed to that state’s bar are doomed to failure, at least in the near term. Thus, a final proposal that significantly intruded upon the authority of each state’s high court generally to limit the practice of law in that state to those who are properly licensed is unlikely to be well-received by the individual states that must endorse and implement any proposed rule change by the American Bar Association.
Accordingly, while leaving the development of specific proposals or rules to others—and the Commission has already received numerous such models—I propose two considerations to keep in mind:
1. Limit Exceptions to State Attorney Licensing Requirements in Terms of Frequency and Length of Time
First, in any proposal that creates an exception to the general rule restricting the practice of law within a state to those licensed therein or establishes so-called "safe harbors" for multijurisdictional practice, the exception should be limited not only in scope but also in frequency or length of time. The general rule will remain that an attorney engaged in the practice of law within a particular state must be properly licensed in that state. Any exception should be designed for the truly exceptional or irregular situation, not to create on ongoing opportunity to evade the responsibility to become licensed to practice law in a state where the lawyer is continually so engaged.
For example, the purpose of the privilege of admission pro hac vice in a state’s tribunals is to accommodate the out-of-state lawyer who has a special need to represent a client on a single, generally unexpected occasion in the courts of another state. It is not designed to permit unlicensed lawyers to engage in ongoing, routine practice in the state’s courts without seeking admission to the state bar and while evading compliance with the state’s professional responsibility rules. Hanson v. Spolnik, 685 N.E.2d 71, 74 n.1 (Ind. Ct. App. 1997) ("[P]ro hac vice admission should only be occasionally permitted as a courtesy towards other state bars and not as a continuing practice to avoid membership in our bar or compliance with our disciplinary rules.").
Likewise, any proposal to permit in-house counsel for an employer-client or other practitioners to engage in multijurisdictional practice should not be open-ended so as to allow a lawyer to conduct the ongoing practice of law within a state while avoiding direct submission to the attorney licensing requirements of that state. As you know, the Ethics 2000 Commission has proposed providing certain "safe harbors" to grant latitude to lawyers engaged in multijurisdictional practice, including one permitting lawyers who are employees of a client (i.e., in-house counsel) to act on that client’s behalf (other than appearances before tribunals). However, this "safe harbor" appears open-ended, allowing the in-house counsel to engage in regular practice of law in a jurisdiction in which the lawyer is not admitted without regard to whether the client is located in the state in which the lawyer is not admitted or whether the lawyer has been temporarily relocated to or instead is permanently residing in that state. While accommodation for the in-house lawyer who is transferred to another location is appropriate, that accommodation to the non-admitted lawyer should be temporary.
2. The Propriety, Scope, and Duration of Exceptions to State Attorney Licensing Requirements Appropriately May Vary Depending on the Obstacles to Licensing in That State
Second, as a related matter, the propriety, scope, and duration of any "safe harbor" exceptions to the general requirement of being licensed in the state of practice appropriately may depend upon the difficulty that a lawyer may encounter in achieving regular admission to practice in that state. The problem of multijurisdictional practice, at least in states in which a lawyer regularly practices, can be avoided of course by simply becoming licensed in that state.
To be sure, becoming licensed in an additional state may be a significant burden for lawyers when trying to gain entry in many jurisdictions. But in others the burden is not heavy. For example, Iowa provides for admission of experienced lawyers upon motion, without demanding reciprocity with the admission rules of other states. Accordingly, there does not appear to be any compelling reason why a lawyer regularly engaged in the practice of law in Iowa, frequently appearing in Iowa courts, relocated to Iowa, or regularly representing Iowa-based clients should not be expected to seek regular admission to practice in this state.
In sum, many (not all) aspects of the problem of multijurisdictional practice can be addressed by encouraging states simply to reduce the barriers to regular admission to the practice of law for those who have established themselves as competent and ethical practicing lawyers in a state of first admission. In that way, each state will achieve the benefit of participation by that lawyer in the licensing and disciplinary system and will more directly have authority to ensure the highest ethical behavior by that lawyer. At the same time, many lawyers would find it unnecessary to search for "safe harbors" to engage in multijurisdictional practice because they would have the full "ticket" to practice regularly and without restriction in the jurisdiction at issue.
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Thank you for this opportunity to provide comment on the subject of multijurisdictional practice.
Gregory C. Sisk
Richard M. & Anita Calkins Distinguished Professor