REPORT OF THE
MISSOURI BAR COMMITTEE
ON MULTI-JURISDICTIONAL PRACTICE
AMERICAN BAR ASSOCIATION
COMMISSION ON MULTIJURISDICTIONAL PRACTICE
REPORT OF THE MISSOURI BAR COMMITTEE
ON MULTI-JURISDICTIONAL PRACTICE
In December 2000, in response to a request by the American Bar Association to review the subject of multi-jurisdictional practice, The Missouri Bar appointed the Multi-Jurisdictional Practice Committee ("Committee") (1) to do so. The Committee met on several occasions over the past several months and has reviewed materials prepared by the ABA Commission on Multi-Jurisdictional Practice, the proposed changes to the Model Rules of Professional Conduct (commonly known as "Ethics 2000"), materials submitted by various organizations and individuals to the ABA MJP Commission, and several pertinent court decisions. The Committee's recommendation is in the form of a proposed model rule and commentary (see Exhibit 1). If accepted by the The Missouri Bar Board of Governors ("Board"), the Committee recommends that this report be provided to the ABA MJP and Ethics 2000 Commissions.
I. The Problem
Historically, the practice of law essentially has been local. Lawyers passed the Bar in and were licensed by one state, and their practice largely was confined to that state and clients within that state. However, in the last two or three decades, this has changed significantly. Now, individual clients may move frequently, own property in several states, and do business in several states. The same is true for corporate clients to an even greater degree, not just in this country but globally as well. Today, lawyers are called upon to handle the client's business wherever it may be, and most lawyers willingly have done so without considering whether they are exposing themselves to the risk that they may be engaged in the unauthorized practice of law when they speak on the phone, send e-mail or a fax, or travel to any other state to negotiate on behalf of a client. Litigators similarly have been unaware that their day-to-day activities, such as traveling out of state to interview witnesses or experts or to negotiate settlements, may be considered by other jurisdictions to be engaging in the unauthorized practice of law. Although pro hac vice admission is available in many proceedings for an out-of-state attorney, it is not always available for alternative dispute resolution or for pre-filing work or discovery in another jurisdiction.
Most lawyers, when informed of these UPL issues, are incredulous. After all, they have been practicing "this way" for years! However, state supreme courts in California, Colorado, North Dakota and elsewhere recently have found that virtually any out-of-state activity by a licensed lawyer may constitute unauthorized practice. (2) A California case even considers legal work performed by a lawyer in his/her licensing jurisdiction, but for an out-of-state client, to be the unauthorized practice of law. (3) These cases, and concerns about the growing scope of everyday legal practice, have prompted the ABA, and the Committee, to look at needed modifications to the Model Rules of Professional Conduct to better serve the interests of the client and reflect the reality of the lawyer's day to day practice.
II. Solutions Considered
Any discussion of multi-jurisdictional practice involves admission, licensing, discipline, regulations, international treaties, constitutional issues and more. Possible solutions to the MJP issue run the gamut from national admission and licensure to tightening the current Model Rules to increase restrictions on a lawyer's practice. While it is not practical in this report to analyze in depth all the proposals that have been advanced, the Committee offers the following general observations on some of the options.
A. National Licensing and Admission. While this concept theoretically is sound and defensible, it ignores practical realities. The Committee believes that state and local oversight of attorneys is preferable, in part because as distance between legal practice and oversight increases, oversight becomes less effective. Moreover, national licensure would require the creation of undesirable bureaucracy, outside of the courts, to administer and enforce the licensure. Finally, such licensure largely would abrogate the safeguards in place to ensure that attorneys are familiar with the law of the state in which they practice. This option would not serve the public interest.
B. "Driver's License" and/or "Green Card" Models. These approaches, advocated by several different organizations ( e.g., American Corporate Counsel Association), provide that a license from one jurisdiction would be sufficient in most circumstances to practice in another, on a less-than-permanent basis. The "green card" model involves registration provisions of some type. Both models provide for regulatory oversight by the licensing jurisdiction and the jurisdiction in which services were performed. These models, while less removed from local control than the national model, again do little to ensure familiarity with state law. In addition, defining what constitutes "residence" or "full-time" practice may pose a problem. Finally, there will be substantial additional cost for this concept. The Missouri Office of Chief Disciplinary Counsel does an exceptional job with limited resources. There is no additional funding to take up UPL currently. The Disciplinary Office has pursued few such complaints in the last ten years. To expect adequate supervision of visiting attorneys without a substantial increase in funding is unrealistic. As the sole source of funding for OCDC is Missouri Bar dues, either our dues will need to go up or a fee will need to be charged to all who apply as visiting counsel. Under current proposals, no attention is given to funding. For example, under the "green card" proposal, there would be no way for the individual jurisdictions to even be aware of the presence of the visiting attorney. The ACCA proposal does not address the issue of funding and does not appear to contemplate a fee. Unless we have the resolution to fund these changes and to pursue UPL actively, the project will fail.
C. Regional Compact. One concept being discussed as a solution to the problems presented by multi-jurisdictional practice is to enter into a multistate or regional compact. Idaho, Oregon and Washington are discussing such a compact.
Initially the three states adopted a "full faith and credit" rule for CLE requirements. If, for example, a lawyer was a member of all three Bars, then by satisfying the CLE requirement of any one Bar, the lawyer also fulfilled the requirement in the other two states. As expected, this was well received by the lawyers.
Some also have advocated a single regional or multistate Bar, so that there no longer would be three separate state bars, but only one integrated bar covering the states of Idaho, Oregon and Washington. This concept has not been well received, and it is doubtful that it would be possible to create such a Bar.
Currently, the three states are discussing reciprocal admission, which would allow an attorney who is licensed in any one of the three states and who has been admitted to practice for at least three years to be admitted to practice in either or both of the other two states without taking a bar examination.
One can conceive of a number of variations of regional or multistate compacts. For example, contiguous states in a particular geographic region could agree to unrestricted reciprocity. In other words, a lawyer who has passed the bar in Missouri, upon application, automatically could be admitted into the bar of Illinois or Kansas.
A regional or multistate compact -- for example, a compact between Illinois and Missouri -- may be simpler and less complex to devise than a national compact. This could be done by mutual or reciprocal admission or simply by an agreement between the two states. Whether an Illinois lawyer practicing in Missouri would be subject to the disciplinary rules in Missouri and vice versa, and whether such lawyers automatically would be admitted to practice in the Courts of their respective states are some of the related details that would have to be worked out. Agreement on these kind of details may be problematic. History tells us that there have been disputes and disagreements over reciprocal admission requirements between Kansas and Missouri and between Missouri and Illinois in the past.
III. Proposed Rule
A fundamental problem with the solutions described in Part II is that they essentially call for rethinking the paradigm under which an individual practices law. Lawyers generally are not proactive -- rather, the profession is reactive and fairly conservative. Lawyers tend to build upon and modify the past rather than start over. For this reason, the approach the Committee has taken is an incremental one. It takes the Ethics 2000 Commission approach, which is a modification of existing Rule 5.5, and modifies further one of the "safe harbors" that cover those areas that most practicing lawyers may have violated, often without even realizing they have done so.
More specifically, the Committee has modified proposed Rule 5.5 (b)(2)(ii) by eliminating the language requiring either that the "matter" be in a jurisdiction in which the lawyer is licensed or that the "client" be in such a jurisdiction (the proposed rule as written is ambiguous). Limiting a client's choice of counsel (or put conversely, placing a lawyer at risk in accepting work from a client located outside his/her licensing jurisdiction) seems both unreasonable and unworkable. In Missouri, two major metropolitan areas, St. Louis and Kansas City, straddle state lines, as do many of the smaller cities (Hannibal, Cape Girardeau, St. Joseph, Joplin and Springfield). For example, in Kansas City, the state line is a two-lane street named "State Line Rd." which runs through the center of the metropolitan area, making it virtually impossible to differentiate one's clientele and legal services on a geographically-based standard.
The Committee has opted for the concept of "temporary" practice on behalf of an existing client, based loosely on the relevant statute in Michigan. The word "temporary" is not defined -- it is the Committee's opinion that this is best left to the sound judgment of each jurisdiction. Most lawyers are ethical and prudent, and the Committee believes that the word "temporary" is sufficiently understandable for these lawyers. For those inclined to "press the envelope," they do so at their risk.
The Committee recognizes that its approach does not address other issues which are germane but not central to this debate. For example, the Committee does not offer any proposal with respect to international legal practice (Missouri has an existing foreign legal consultant rule) or the quagmire of issues presented by "internet" legal practice. The Committee also has made no effort to analyze the constitutional questions that may arise as to whether the existing licensing of attorneys and regulation violate free speech or the due process, equal protection or interstate commerce clauses of the U.S. Constitution.
The Committee's approach is limited, but it addresses the most serious problems facing most lawyers, and it does so in a way that preserves local licensure, regulation and oversight. These hallmarks of the legal profession have served well for a long time and should not be abandoned. The Committee is not suggesting that its proposed rule be recommended for adoption on a unilateral basis by the Missouri Supreme Court. Absent other jurisdictions adopting the same rule, Missouri attorneys would be placed at a disadvantage.
The Committee hopes that this Report will be accepted by the Board and forwarded to the ABA Commission on Multi-Jurisdictional Practice and Ethics 2000 Commission for their consideration.
MISSOURI BAR COMMITTEE ON MULTI-JURISDICTIONAL PRACTICE
Proposed Rule on Unauthorized Practice of Law
(a) A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.
(b) A lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law in this jurisdiction when:
(1) the lawyer is authorized to appear before a tribunal in this jurisdiction by law or order of the tribunal or is preparing for a proceeding in which the lawyer reasonably expects to be so authorized; or
(2) other than making an appearance before a tribunal with authority to admit the lawyer to practice pro hac vice:
(i) a lawyer who is an employee of a client acts on the client's behalf or, in connection with the client's matters, on behalf of the client's other employees or an affiliate;
(ii) the lawyer temporarily is in this jurisdiction for the purpose of acting only with respect to a matter that arises out of or is otherwise reasonably related to the lawyer's practice on behalf of an existing client; or
(iii) the lawyer is associated in a particular matter with a lawyer admitted to practice in this jurisdiction.
(c) A lawyer shall not assist another person in the unauthorized practice of law.
(d) A lawyer not admitted in this jurisdiction is subject to the disciplinary authority of this jurisdiction if the lawyer renders or offers to render any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
 A lawyer regularly may practice law only in a jurisdiction in which the lawyer is admitted to practice. The practice of law in violation of lawyer-licensing standards of another jurisdiction is a violation of this Rule. Thus, unless another jurisdiction has adopted a Rule similar to this one, a lawyer licensed in the adopting jurisdiction may be disciplined for engaging in the unauthorized practice of law in the other jurisdiction, even if the lawyer's conduct otherwise falls within the safe harbors provided in this Rule.
 Given the increasingly interstate and international nature of some clients' legal matters, there are occasions on which a lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, will engage in conduct in this jurisdiction under circumstances that do not create significant risk to the interests of the client, the courts or the public. Paragraph (b) identifies four situations in which a lawyer may engage in such conduct without violating this Rule. The Rule does not address all aspects of multi-jurisdictional practice or whether other conduct constitutes the unauthorized practice of law.
 Paragraph (b)(1) recognizes those instances when a lawyer appears or anticipates appearing before a tribunal with authority to admit the lawyer to practice pro hac vice. Under this paragraph, a lawyer does not violate this Rule when the lawyer appears before such a tribunal. Moreover, a lawyer does not violate this Rule when the lawyer engages in conduct in anticipation of being so authorized, such as factual investigations and discovery conducted in connection with a judicial or administrative proceeding in which the lawyer has been or reasonably expects to be admitted.
 The safe harbor provisions of paragraph (b)(2) are limited to situations in which paragraph (b)(1) is not applicable. For example, paragraph (b)(2)(i) recognizes that a client (typically a corporation) may hire a lawyer as an employee under circumstances that may make it impractical for the lawyer to be admitted to practice in a jurisdiction that has adopted this Rule. These circumstances include the need for in-house counsel to render legal services to the client in various out-of-state facilities of the client, as well as frequent relocation with only temporary residence in a particular jurisdiction. Since the client is unlikely to be deceived about the qualifications of the lawyer, the lawyer may act on behalf of the client without violating this Rule. The lawyer also may act on behalf of the client's other employees or an affiliate, but only in connection with the client's matters.
 Paragraph (b)(2)(ii), which is modeled on Section 3 of the American Law Institute's Restatement of the Law Governing Lawyers, recognizes that the complexity of many matters requires that a lawyer be permitted to act on the client's behalf in one or more jurisdictions where the lawyer is not admitted with respect to matters arising out of or otherwise reasonably related to the lawyer's practice on behalf of the client. Examples of such conduct are negotiating on the client's behalf, appearing in an administrative or rule-making proceeding or before a tribunal for which pro hac vice admission is unavailable, participating in discovery, and participating in an alternative dispute-resolution proceeding.
This paragraph provides a safe harbor for an attorney who does not have an office in this jurisdiction in which the attorney holds himself or herself out to the public as practicing law, but who, on an occasional basis, acts on behalf of a client. It is not intended to permit an attorney to enter this jurisdiction for the purpose of actively soliciting a new client(s).
 Paragraph (b)(2)(iii) recognizes that association with a lawyer licensed to practice in this jurisdiction is likely to protect the interests of both the client and the public. However, the lawyer admitted to practice in this jurisdiction may not serve merely as a conduit for an out-of-state lawyer but must share actual responsibility for the representation of the client. If the admitted lawyer's involvement is merely pro forma, then both lawyers are subject to discipline under this Rule.
 The definition of the practice of law is established by law and varies from one jurisdiction to another. For this and other reasons, the Rule does not address certain issues, such as whether an Internet website that purports to offer legal services constitutes the unauthorized practice of law. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. Paragraph (c) allows a lawyer to employ paraprofessionals and delegate functions to them, so long as the lawyer supervises the delegated work and retains responsibility for the work.
 A lawyer may provide professional advice and instruction to a nonlawyer whose employment requires a knowledge of law -- for example, a claims adjuster, employee of a financial or commercial institution, social worker, accountant, and an individual employed by a government agency. A lawyer also may assist an independent nonlawyer authorized by the law of a jurisdiction to provide particular legal services -- for example, a paraprofessional authorized to provide some kinds of legal services. In addition, a lawyer may counsel a nonlawyer who wishes to proceed pro se.
 Paragraph (c) applies to assisting improperly a lawyer admitted to practice in a jurisdiction other than the adopting jurisdiction.
 The disciplinary authority of this jurisdiction is extended to other lawyers who render or offer to render legal services in this jurisdiction. For example, if an attorney is adjudged guilty of professional misconduct in this jurisdiction, the disciplinary counsel of each state in which the attorney is licensed to practice should be given notice of that fact and provided with a copy of any record of proceedings, and the licensing jurisdiction(s) should give consideration to the findings / recommendations of the disciplinary counsel of this jurisdiction.
1 Jennifer Gille Bacon (Chair), Richard J. Collins, Doreen Davis Dodson, John S. Johnston, Carol Needham, Charles A. Weiss, Joe B. Whisler and Dick H. Woods, Jr.
2 Ranta v. McCarney, 391 N.W.2d 161 (N.D. 1986); Koscove v. Bolte, Colo. Ct. App., No. 98CA1099 (2/15/01). But, cf., Estate of Condon, 65 Cal. App. 4 th 1138, 76 Cal. Rptr. 2d 922 (1998); and Fought & Co. Inc. v. Steel Engineering & Erection, Inc., 87 Haw. 37, 951 P2d 487, 497-98 (1998) for excellent discussions about the "global" nature of today's law practice.
3 Birbrower, Montalbano, Condon & Franke, P.C. v. Superior Court, 17 Cal. 4 th 119, 949 P.2d 1 (1998), cert. den., 525 US 920 (1998).