1 P R O C E E D I N G S
2 of the
3 AMERICAN BAR ASSOCIATION COMMISSION ON
4 MULTIJURISDICTIONAL PRACTICE 2000-2001
5 FRIDAY, APRIL 27, 2001
6 UNIVERSITY OF MISSOURI - KANSAS CITY
7 KANSAS CITY, MISSOURI
10 The Commission on Multijurisdictional
11 Practice 2000-2001 of the American Bar Association,
12 meeting at the University of Missouri in Kansas City, on
13 April 27, 2001, was called to order at 1:30 p.m. with Mr.
14 Anthony Jenkins presiding. The other members of the
15 Commission in attendance are:
16 Mr. Peter D. Ehrenhaft Mr. Larry Ramirez
17 Other individuals in attendance are:
18 Dean Powell Ms. Ginger Lamb
19 Ms. Jeanne P. Gray Mr. Dick Woods
20 Mr. John A. Holtaway Mr. Joe Whisler
21 Ms. Carol Needham Judge Waxse
1 MR. JENKINS: Good afternoon, everyone. My
2 name is Tony Jenkins. I am in private practice in
3 Detroit. With me on this far end of the table is
4 Larry Ramirez and Peter Ehrenhaft. We are members of
5 the Commission on Multijurisdictional Practice. This
6 is the fifth of a series of workshops -- not
7 workshops, but hearings and roundtable discussions
8 that the Commission has been hosting across the
9 country, focusing on the concept of
10 multijurisdictional practice.
11 We welcome you all and although I know there
12 is probably not a representative from the law school
13 here, I do on the record want to say thanks for their
14 accommodations and hospitality. We appreciate it
15 very much.
16 Before we delve into things, since we have
17 such a small group, I propose that we go around the
18 table quickly and give everyone a chance to say hello
19 and introduce themselves and then we can move into
20 the substance of what we want to cover today.
21 Larry, do you want to kick it off?
22 MR. RAMIREZ: Sure. I am Larry Ramirez. As
23 Tony said, I am a member of the Commission. I am
24 from Las Cruces, New Mexico, where I am a sole
25 practitioner. I am a past chair of a general
1 practice solo small firm section of the ABA, as well
2 as past chair of the District of the Supreme Court of
3 New Mexico and I have been active in this discussion,
4 as well as active somewhat in the MDP discussion
5 before and that is one of the reasons I am here
6 because I can't keep my mouth shut. But I am glad to
7 be here.
8 MR. JENKINS: Welcome.
9 MR. HOLTAWAY: I am John Holtaway. I work
10 for the American Bar Association; specifically, the
11 Center for Professional Responsibility. I staff both
12 the Commission on Multijurisdictional Practice and
13 the standing committee on client protection.
14 MS. GRAY: My name is Jeanne Gray. I am the
15 director of the Center for Professional
16 Responsibility at the American Bar Association and we
17 are the unit in the ABA that has brought you the
18 models of professional conduct, that brought you MDP,
19 that has brought you MJP and a host of other issues
20 and the challenge is continuing. I am delighted to
21 be here and I am very grateful that all of you have
22 come to have a dialogue with us today.
23 MS. NEEDHAM: My name is Carol Needham. I
24 started my interest in this area when I was in
25 practice. I now teach at St. Louis University Law
1 School but I was practicing in Los Angeles with a 700
2 lawyer firm that has offices all over the world. It
3 bothered me when I was in Arizona, where I was not
4 licensed, and various other states, the idea that
5 some guy who was licensed last year to be an attorney
6 in some other area is practicing and not focused at
7 all in securities work was the guy who was making
8 sure that the advise was correct. The logic of it
9 escaped me and that is why, when I went into
10 teaching, I was looking for areas of research,
11 because the inconsistencies bothered me; but I am
12 delighted to be here today.
13 MR. WOODS: My name is Dick Woods. I am
14 General Counsel and Senior Vice President for the
15 Federal Reserve Bank of Kansas City, so I am
16 representing, to some degree, corporate attorneys.
17 Tony, I went to law school up in your state,
18 so I was rooting for Redwings. My interest,
19 obviously, we have -- the Federal Reserve Bank is not
20 a governmental agency. I know there is some popular
21 misconception as to that, but we are not. Each
22 reserve bank, with the exception of one, has branches
23 in other cities. For example, the Kansas City fed
24 has a branch in Denver, Oklahoma City, and Omaha. Of
25 necessity, either I, or other members of the legal
1 department, will travel to those branch offices to
2 advise management on legal issues. We also
3 participate in administrative hearings on behalf of
4 the bank there and while we generally hire
5 co-counsel, local counsel to handle litigation
6 matters, we nevertheless are actively involved in
7 that. So the issues involving multijurisdictional
8 practice are very much of interest to us.
9 MS. LAMB: I am Ginger Lamb. I am from the
10 Daily Record in Kansas City and I am just observing
11 to see what happens today at the hearing.
12 JUDGE WAXSE: I am Dave Waxse. I am a
13 federal magistrate in the District of Kansas, but my
14 interest in this is a result of I am a past president
15 of the Kansas Bar and currently one of the two Kansas
16 Bar delegates to the ABA house of delegates.
17 Back when I was president, we were working
18 on the issue in Kansas of trying to get some kind of
19 reciprocity because Kansas, for about the last 20
20 years, has required everyone who comes in to take the
21 bar exam. It has gotten kind of conflicted because
22 the federal courts, on the other hand, decided that
23 was too limiting. So we now allow Missouri
24 attorneys, or other state attorneys, to practice in
25 federal court simply by registering, as opposed to
1 taking the bar, even though generally we require the
2 attorneys that practice in federal court to be
3 licensed in the State of Kansas.
4 MR. WHISLER: I am Joe Whisler. I am a
5 member of the Board of Governors of the Missouri Bar
6 and like Carol and Dick, I am on a special committee
7 the bar has appointed to follow this issue. I was
8 also on the committee last year for MDP and went to
9 the hearing in Dallas and it was a little better
10 attended than this one. So I take it this hasn't
11 really hit everybody's radar screens yet.
12 We want to be involved and are interested in
13 what goes on. My practice is I am hardly ever in
14 Kansas City doing aviation law and departmental law.
15 As the judge said, I am good enough to practice on
16 5th Street in Kansas but not good enough to practice
17 on Minnesota, apparently, for some reason. And that
18 is kind of a long-running issue with the Missouri
19 side. In this neck of the woods, it is particularly
20 of interest to a practitioner.
21 MR. EHRENHAFT: My name is Peter Ehrenhaft
22 and I come to this task via Tokyo in the following
23 way. I am a lawyer in international practice and I
24 have been active in the international practice
25 section of the ABA for about 25 years.
1 One of the most challenging aspects of our
2 work was attempting to open the Japanese market for
3 American lawyers and I was the chair of the task
4 force, working with the Japanese from the early
5 '80's, to try and enable Americans to practice in
6 Tokyo. We have kept up with this campaign because it
7 requires an unrelenting effort to move inch by inch
8 to indeed make the Japanese market available to the
9 many American lawyers who believe that it is a good
10 place to practice and to be available to Japanese
11 clients that would like to have American lawyers
12 available for consultation in Japan.
13 That particular role has led to various
14 other assignments related to the international
15 practice of lawyers. That is what I do as an
16 international transactions lawyer. And although I am
17 admitted in New York and in the District of Columbia,
18 I can probably correctly say that as of today, I have
19 no clients in either of those two jurisdictions. And
20 though my office is in the District of Columbia, I
21 almost never go there.
22 Most of my activities are in Poland and
23 Thailand and other countries and other states. And
24 the notion that the Bar is regulated by rules that it
25 flouts daily, as I do, and so many of my colleagues
1 in the kind of work that I do, is very unsettling to
2 me. And it seems to me that if we try and tell other
3 people how they should behave, that we aught to do at
4 least the same. So I have a real interest in seeing
5 whether we can reform the rules of the profession and
6 to determine what impact that would have on the way
7 that the American legal system operates.
8 I think its has correctly been characterized
9 as a wonderful system in a variety of very important
10 ways and we shouldn't belittle that, but how much of
11 that quality depends upon some of these
12 jurisdictional lines of state-by-state regulation is
13 a question I am not sure there is a direct link. And
14 I would hope that our hearings and the information we
15 receive from those who come and discuss this with our
16 commission will shed light on this matter.
17 To follow up on a point Mr. Whisler just
18 made about the lack of attendance here, it is an
19 interesting and appropriate observation that is
20 matched by the experience that we have had in trying
21 to pole the membership of the ABA on this very issue
22 as to how many lawyers in the ABA and it has, as you
23 know, 400,000 members. How many of you have
24 activities that take you out of the state? How many
25 of you think that it is appropriate that you could
1 practice in another state? How many of you have
2 partners that come from other states? There were
3 about ten or fifteen such questions and they have
4 been printed in the ABA journal and this, that and
5 the other kind of document, attempting to get
6 somebody in our organization to respond.
7 John, do we have five hundred responses to
9 MR. HOLTAWAY: We are up to about 250.
10 MR. EHRENHAFT: It is an incredible
11 manifestation that lawyers can't believe that this is
12 a real issue, which is something I am beginning to
13 think, that lawyers think that this is something that
14 bar officials may be very agitated about but as far
15 as the profession is concerned, it is a non-issue and
16 a couple of people are being caught not being able to
17 collect their fees in some odd situations, but just
18 to identify people who have actually experienced a
19 problem in this area is difficult.
20 Therefore, we are receiving some kind of
21 indications that you are making a problem where one
22 doesn't exist. Why talk about this? No one cares
23 and let's just keep on going and shut up. Well, to
24 me, that is not a satisfactory solution. Anyway, I
25 think it is an important fact as to which it would be
1 interesting to hear from you all.
2 You have appointed a commission to study it,
3 but of the total numbers of state bars and others in
4 the country, a very, very small number have even gone
5 that far to organize anybody to take a serious look
6 at this issue. But is this an important issue? How
7 important is it? Should we address it and how should
8 we address it? I want to hear your views.
9 MR. WOODS: Let me say that I know cases
10 that have arisen over a dispute over lawyers fees
11 once there has been a falling out. My personal view
12 with respect to the current state of affairs is that
13 it does not reflect what in practice is occurring and
14 what is occurring without substantial detriment to
15 the general public or the clients.
16 I think primarily of the focus from the
17 client in this, and I think the client should be able
18 to choose an attorney to represent the client in
19 whatever jurisdiction that the attorney may be
20 situated. In your case, you are licensed in the New
21 York Bar and Washington Bar. If someone wants to
22 retain you in the United States as opposed to
23 Thailand to handle a transactional matter, I think
24 they aught to be able to do that.
25 When you get to the litigation arena, I
1 think that is a different matter and we have the
2 traditional pro hac vice that I think has worked.
3 But I am thinking primarily from the transactional
4 standpoint and things of that nature; looking at it
5 from the point of view of a client who wants to
6 select an attorney to represent him/her or it.
7 MR. JENKINS: One of the considerations or
8 perhaps counter-arguments to that, though, is let's
9 take real estate as an example, which is what I
10 happen to do a lot of in my practice. The laws are
11 not uniform; they vary from state to state as to how
12 you do it and what you do.
13 In that regard, would there, in your mind,
14 be some potential problem or issue where an attorney
15 licensed in State A is coming into State B to handle
16 a real estate transaction even though it is a client
17 that they do business or provide services to
18 routinely in State A?
19 MR. WOODS: Let's say that Missouri is State
20 A and Kansas is State B. I know attorneys in
21 Missouri who do real estate work in Kansas and I am
22 confident that there are attorneys licensed to
23 practice only in Kansas that represent people with
24 respect to Missouri real estate transactions. That,
25 I don't find necessarily problematic.
1 One of the things that I really think is
2 that the attorney has, if for no other reasons that
3 just selfish reasons, an interest in not being guilty
4 of malpractice. So were I in private practice in
5 Missouri and I had a Kansas client that wanted me to
6 help them with real estate, I think I am sufficiently
7 competent to look up the Kansas real estate statutes.
8 I would not hold myself out as being confident with
9 respect to the Kansas local court rules.
10 If I were asked to represent somebody in the
11 State of Texas, where I never venture, I wouldn't
12 handle it. Again, my own self-interest in having the
13 client properly represented and not exposing myself
14 to malpractice would cause me not to take that case.
15 So I think in a case where you have a state line that
16 is the kind of state line situation that we face with
17 Kansas, that is one issue. I don't know whether
18 Detroit and Toledo have that kind of thing with Ohio.
19 I think it is only about 40 minutes south or
20 something of that nature. Illinois may have an issue
21 with St. Louis, that type deal, but I think when you
22 are leaping several states, I don't think that
23 broadening the ability to practice in other
24 jurisdictions has much of a fallout for the real
25 estate practice.
1 MR. EHRENHAFT: Mr. Woods, I wanted to ask
2 you, in following up on that, on a paper we received
3 from the Akron Bar Association. They said that --
4 one of the things that was cited to them in support
5 of the view that there should be liberal rulings, was
6 the directive of the European Union pursuant to which
7 lawyers in any one of the countries of the European
8 Union may practice in any of the other countries
9 after three years of climatization in the other
10 country. So the Frenchman can go to Italy and
11 Englishman can go to Germany and so on.
12 The point was made, Look, they do that
13 despite enormous differences in language, culture,
14 approach to life, and so on. If they can do it in
15 Europe, why can't we do it in the United States. And
16 the answer to the -- the Akron Bar submitted a paper
17 to us and said, Well, the Englishman knows when he
18 goes to Germany that he doesn't know enough about
19 German law; therefore, he would presumably recognize
20 his lack of competence and so one could rely on his
21 self-policing because there is such a stark
22 difference between the rules that he would recognize
24 The danger of bringing that same kind of
25 concept into the United States is the differences
1 between Kansas and Missouri are probably very small
2 and subtle. A Kansas lawyer wouldn't know whether
3 he, in fact, didn't know enough about Missouri law.
4 Therefore, there is a greater danger in a system in
5 which the rules are not that different for allowing
6 people to cross state lines because they wouldn't
7 know about their own quote incompetence.
8 Do you think that is a respectable argument
9 or a valid one that reflects the facts?
10 MR. WOODS: I certainly think that is one
11 that needs to be considered and I have no doubt that
12 there probably is some merit to that argument, given
13 the fact there is no language barrier in this
14 country. I agree with you, to the extent somebody is
15 motivated purely by either the desire to not lose a
16 client or the desire to earn the fee that would come
17 from representing the client on the Texas real estate
18 transaction. The client, I think, potentially might
19 be at risk. I am not sure whether it would be in the
20 real estate environment. It might be in securities
21 law environment to a greater degree. I am not sure
22 that that argument has enough merit, or that rebuttal
23 has enough merit, to throw out and disregard what, in
24 fact, is the current practice throughout the country.
25 JUDGE WAXSE: If I could respond from the
1 Kansas side of this thing. It seems to me the state
2 line is really not the issue, it is competence. And
3 the same issue you have raised exists in any
4 situation where an attorney attempts to practice in
5 an area where he or she is not currently competent
6 in. We don't do anything to say that the securities
7 lawyer can't go handle a criminal case and yet we say
8 that the real estate lawyer, who may be totally
9 competent across the state line, shouldn't go do
10 that. If we would focus on competence instead of
11 these artificial rules, it would seem to me to make
12 more sense for the attorneys and the clients.
13 To follow up on something else Dick said,
14 there is not only the restraint of malpractice, but
15 there is the restraint of the ethics rules, which say
16 you shall be competent. That means in whatever you
17 are doing in that transaction. So it seems to me we
18 should be enforcing the rules that we have, which I
19 don't think we do a very good job of, and not focus
20 so much on these artificial lines.
21 MR. RAMIREZ: Following up on something
22 Mr. Woods said, he said that in the transactional
23 area, the focus should be on the client and the
24 client should be able to choose an area. Then he
25 made a distinction for litigation and pro hac vice
1 admission. Should there be different rules or
2 different processes for lawyers depending on the type
3 of work they are doing?
4 JUDGE WAXSE: I don't think so. I see, as a
5 judge, lots of situations where lawyers licensed in
6 our court don't know our rules. The license doesn't
7 have anything to do with it. It has to do with you
8 have to stay current on the rules. I think whether
9 it is litigation or real estate, before you proceed
10 in that endeavor, you have to get up to speed on the
11 rules and comply with the rules and act competently.
12 So I don't see that big a difference between
13 transactions and litigation. It is the same
15 MR. RAMIREZ: To follow up on that then, if
16 competence is the issue, how can we, as a profession,
17 ensure competence across the state line?
18 JUDGE WAXSE: I don't know for sure what the
19 answer is; I know what the answer is not. It is not
20 saying that you take a bar exam at some point in your
21 life and then you are competent forever in that state
22 that you took the bar exam.
23 I have told Carol this story. When we were
24 arguing this with our Kansas Supreme Court, they were
25 adamant that they weren't going to allow anybody in
1 Kansas unless they had taken the bar exam. I
2 suggested to the court and the Board of Governors
3 that they take a day off and take a bar exam and see
4 if we were really using that standard and were
5 competent to proceed; and they didn't want to take me
6 up on that.
7 MR. JENKINS: I can't imagine why.
8 MR. WOODS: I might just respond, if I may,
9 on the litigation. The reason I draw the distinction
10 on that -- and again, I think it depends on how well
11 the judiciary polices the admission pro hac vice --
12 but the reason I draw the distinction is whether I am
13 talking about, let's say, real estate law or probate
15 I hate to focus solely on real estate law,
16 but I think I can find that out about another state.
17 But I won't know, or I won't be able to find out
18 perhaps as easily, when I go into the other state
19 what are the various statutes and limitations for
20 this or that cause of action. And that is the only
21 thing where I think the judge and I maybe have a
22 difference of opinion. I think there are nuances and
23 subtleties that arise in the litigation arena that
24 aren't as well known if you are not an active
25 litigator in that arena or are reading whatever
1 publication the court puts out or things of that
2 nature. And that is why I draw that distinction.
3 MR. RAMIREZ: But that is not saying -- do
4 we give lawyers a passport and, for example, you have
5 to go and register and get your picture taken -- and
6 there are parts of my state where I likely need a
7 passport to practice -- but how do we do this? How
8 do we make sure that Dick Woods is an o.k. lawyer and
9 he is going to do a good job in New Mexico if he
10 comes to try a case in New Mexico?
11 MR. JENKINS: I want to piggyback on your
12 question. I want to come back to the competency
13 issue, too. It sort of ties into what you are
14 asking, maybe. Should there be some effort to have a
15 uniform or universal test of competency or should it
16 be left to each state to decide what the competency
17 test is for a lawyer who wants to come in and engage
18 in certain activities? What do people think about
20 MR. WOODS: I guess my reaction to that
21 inquiry is that it is probably worth, with all due
22 respect, not much discussion, simply because I don't
23 see the states ever being willing to go along with
24 the deal where they didn't have some significant role
25 in the licensing of the attorneys.
1 I think, to the extent I am old enough where
2 I didn't have to take the multistate bar, I would be
3 afraid to take it, David. But I have always assumed
4 that that is kind of the national perspective that is
5 given to an attorney through the testing process. I
6 just don't see the concept of a national test, where
7 somebody would be licensed then to practice almost
8 anywhere as being a politically practical one.
9 JUDGE WAXSE: You know, I think on the
10 litigation side, there is something we can do on
11 competency that I have started doing. I think each
12 judge has an obligation to police that. I think I
13 have now had three or four different attorneys where
14 I have simply sent the pleadings with the description
15 to the disciplinary administrator and said, It
16 doesn't appear to me this person is competent and you
17 determine, under your standards, whether they are or
18 not. And from talking to the other judges I sit
19 with, apparently that is not a norm.
20 MR. RAMIREZ: One other thing in my
21 experience with pro hac vice in the state. When I
22 got admitted, the judge made me sign a statement that
23 said, I have read your rules, I know what they are, I
24 agree to follow them and so forth just like any other
1 DEAN POWELL: I would say with respect to the
2 specific question, Are we looking for a national
3 solution here, that the answer is that considerations
4 of federalism probably preclude that. The individual
5 jurisdictions are going to have a strong say in who
6 is going to be able to practice within that
8 To the extent that we get a result that has
9 national implications, it would seem to me that it
10 follows that that result would be based on some
11 cooperative kind of arrangement. That it would
12 therefore be most helpful for the Commission at least
13 to suggest some sort of model, some basis on which
14 jurisdictions might join together and agree upon
15 appropriate standards that they then might
16 individually decide to opt into or adopt.
17 I had indicated that I wanted to speak on an
18 earlier point, though, because with respect to the
19 question of guarantee of competence, I am always
20 struck by the fact that it is very difficult to be
21 able to guarantee competence, even with the bar exam.
22 To the extent that addresses minimum
23 competency, what it really says is minimum competency
24 for the three months just before the bar exam and
25 three months just afterwards; and the rest of it we
1 take on faith. And while I think, historically, the
2 record is pretty good that people do tend to engage
3 in practice areas that reflect their strengths and to
4 stay away from those that reflect their weaknesses, I
5 think we certainly could be doing more.
6 One of the things that I would hope the
7 Commission would consider in connection with any
8 extension of the license might be a requirement that
9 if you are practicing outside of your jurisdiction,
10 that you at least are maintaining malpractice
11 insurance for any jurisdiction in which you are also
12 seeking to practice. This then provides perhaps not
13 a perfect satisfaction in the event something goes
14 wrong, but it at least provides an incentive to stay
15 current and protection if you don't. Protection for
16 the client, that is.
17 MR. WOODS: That is an interesting thing
18 that I hadn't thought about. I don't maintain
19 malpractice insurance, given the fact that my
20 employer is what it is. But I suspect if I were to
21 look at a malpractice policy, it would exclude
22 coverage if you are practicing outside of the
24 MR. EHRENHAFT: Believe me, that is not
25 true. I have that very concern in our practice and
1 you are permitted -- the policy that we, at least
2 have, which I think is fairly standard malpractice
3 insurance -- it covers me wherever I practice and it
4 only excludes criminal actions. And one of the
5 questions would be is it, in fact, criminal behavior
6 in some places for me to practice law? I don't know
7 if that has ever been tested, but so far as I am
8 practicing in another state, the policy would cover
10 I just wanted to throw on the table, in part
11 to follow up on some of the thoughts that have been
12 expressed here about the sanctity of the jurisdiction
13 of lines of the United States in our federal system,
14 Yes, we do have a federal system. But we also have a
15 full faith and credit clause that is a very vital
16 glue of the federal system. And we allow Illinois
17 corporations and we require that every state
18 recognize a corporation formed under Delaware law and
19 all this internal government's procedures and so on
20 to be recognized in other jurisdictions, wherever
21 that Delaware corporation qualifies to do business.
22 We have in our everyday life something that
23 has been mentioned to our Commissioner on a number of
24 occasions, our drivers licenses. We are tested once
25 when we are 15 or 16, whether we can park or do some
1 little thing that a particular jurisdiction has
2 decided to make a part of the drivers license and
3 other states may say this is a ludicrous test. You
4 really need to know a lot more to be able to drive on
5 our highways. Nevertheless, that driver's license is
6 recognized by every other jurisdiction. People can
7 go in there and drive in other states. Now, when
8 they move and set up their residence, then they may
9 need to be retested.
10 I think it provides, perhaps, an
11 appropriate kind of guideline for the practice of
12 law, too. If a state in the United States had
13 decided that you are adequately competent to be
14 admitted into practice, then if you come into another
15 state, like with the driver's license, there should
16 be a presumption of competence that you can do so.
17 If you move your practice, hold yourself out to be a
18 lawyer in a jurisdiction on a full-time basis, then
19 perhaps some greater kind of procedure aught to be
20 required of registration, waivers or something like
22 But it seems to me there are enough
23 precedences in our system, not only with regard to
24 corporations, but what other professions have done;
25 accountants, architects, engineers. There is a
1 mutual recognition of licensure from one state to the
2 other. They don't have this kind of process that we
3 have that makes it so difficult for lawyers to move
4 their practice or to feel confident that they are not
5 violating rules by moving their practice on a transit
6 basis from one jurisdiction to another.
7 MR. WOODS: That is essentially the active
9 MR. JENKINS: I was going to say that is
10 sort of one of the models that the Commission has
11 heard about during the course of its hearings. Of
12 course, there are other models we have heard about
13 where people think there are problems with that
14 particular model.
15 DEAN POWELL: I just wanted to add a
16 footnote here. The reference was made to full faith
17 and credit. I am not sure that that is the provision
18 we are looking at. I think we are looking at the
19 privilege of immunity provision. But I only note
20 that because we are in a law school and we really
21 worry about those kinds of discussion.
22 Full faith and credit provisions would
23 generally focus on the requirements that another
24 jurisdiction accept what we have done for the
25 residents of our state; whereas, the privilege and
1 immunity would say that you have to treat the
2 residents of our state in the same way, affording
3 them the privileges that you would afford the
4 residents of your own state.
5 MR. EHRENHAFT: I was treating the admission
6 to the bar as an act of a state in determining the
7 competence of a person to practice and that
8 determination by the state is the one that is
9 required to be given full faith and credit.
10 DEAN POWELL: Yes, and I think full faith
11 and credit would simply say that, Yes, we in Missouri
12 will accept that you are licensed in your state. But
13 it would not require that we accept your license in
14 your state as something that we have to accept. And
15 if you are going to get there, then it would become
16 the question of whether we, in our state, have set up
17 any barriers to your becoming licensed in our state
18 that would not also be barriers to anybody becoming a
19 lawyer in our own state.
20 JUDGE WAXSE: Back on this competency issue,
21 I think there are certain things we could do. Some
22 of these we discussed when we were having our
23 discussions with the Kansas Board. One thing is we
24 supposedly had this idea of CLE having some impact on
25 competency and yet we have no requirements that the
1 CLE have anything to do with what your practice area
2 is. So one of the things we have talked about is
3 that maybe one method of dealing with the competence
4 issue would require that if you are coming in from
5 out of state, your CLE has to be something related to
6 the state law in the area you are practicing in.
7 Make it focused and required, as opposed to saying
8 you can take something on something unrelated to what
9 you practice.
10 But the other issue, I think we somehow have
11 this faith that a bar exam is going to have some
12 indication of competency. Every incompetent lawyer I
13 have seen passed the bar exam so I am not sure what
14 that gets us.
15 MR. RAMIREZ: I wanted to throw another
16 little glitch into the constitutional argument or
17 discussion that we are having here. I am one of
18 those lawyers that would focus on the commerce laws
19 and say how these regulations might be a restraint on
20 trade or my ability to earn a living and whether that
21 is a reasonable restraint. Like you said, the bar
22 exam, I don't know that it historically measures
23 competence. And if the goal is to protect the
24 public, does the bar exam really do that? I think
25 that is part of the debate.
1 MR. EHRENHAFT: Do you think that the bar
2 exam could be struck down on the grounds it is --
3 MR. RAMIREZ: No. I am just saying that
4 would make for a very interest argument. With this
5 supreme court, I don't know what would happen.
6 DEAN POWELL: But if we try in Missouri to
7 force out-of-state lawyers to take CLE courses and we
8 weren't requiring our own attorneys to take CLE
9 courses, I think we would have a privilege and
10 immunity problem.
11 MR. RAMIREZ: Or requiring attorneys to
12 have malpractice where you don't require your own
13 attorneys to have malpractice. A lot of states don't
14 have mandatory malpractice.
15 MS. GRAY: I think one of the other issues
16 is that we are talking about kind of competency at
17 the front end, but even presuming competence for the
18 multijurisdictional practice, I think we need to look
19 at the public protection at the back end when, in
20 fact, there has been a failure of competence. Who is
21 accountable, who is responsible and who takes the
22 appropriate action?
23 One of the things that at least the
24 regulation community is concerned about is committing
25 their resources to assuring competence in a lawyer
1 population that is not licensed in the jurisdiction
2 over which they really have no serious effect other
3 than to potentially preclude them from ever being
4 licensed and whether or not they would be full faith
5 and credit on their records with regard to the whole
7 So I think that assuring competence at the
8 front end in terms of, do we let somebody go in pro
9 hac vice and do transactional practice. But at the
10 back end, how do we then sort of have an overlay of a
11 regulatory system where 52 jurisdictions buy into it
12 in some consistent fashion and really gives the kind
13 of respect and reciprocity that I think would be
14 needed to legitimize what we all agree is how
15 practice is conducted in the country right now.
16 But it is conducted without any oversight
17 and without any meaningful regulation and conducted
18 in a way that people are certainly not confident
19 about the legitimacy of what they are doing, which is
20 why only 250 lawyers bothered to respond to our
21 survey. I think people are concerned.
22 MR. EHRENHAFT: Isn't the implication,
23 however, in what you are saying support for the view
24 that this entire exercise is kind of a silly one?
25 Because, first of all, it is posited on the notion
1 that regulation is required. Is it in fact -- what
2 is the predicate for requiring these kinds of
3 licenses, anyway? There is historic record of it but
4 forget history for a moment.
5 In the courts, it is a different thing. I
6 think from the earliest courts, it may be that judges
7 have required that people who appear before them have
8 a certain kind of competence and whatever. And one
9 of the problems we have about devising rules is -- we
10 usually talk about legislative rules -- it is very
11 hard to require courts to do anything. I mean, maybe
12 the courts will always have an inherent power to say
13 who is going to have the right to appear before them.
14 I don't know enough about that. It would be
15 interesting to know.
16 But one of the things that has struck me in
17 the course of these hearings is we hear about this
18 problem you are talking about, the regulators need to
19 be able to catch the malfeasers. How many malfeasers
20 are there? Out of the million lawyers practicing in
21 the United States, how many, in fact, do we have to
22 be concerned about?
23 And considering all the other problems of
24 our country, the crime and everything else, how many
25 resources should the community put into going after
1 -- what, five hundred lawyers in the country per year
2 that actually malpractice to the injury and are
3 caught at it. There may be millions or thousands
4 that are malpracticing in some way and nobody knows
5 about it because it may have no adverse effect. But
6 as far as the record is concerned about what really
7 is a bad situation requiring regulation, do we have a
9 MS. GRAY: I would say, Peter, my sense
10 would be that if, in fact, we relax the barriers to
11 practice in the country so that interstate practice
12 becomes the common practice and that is something
13 that people do and wonder how far they should go.
14 Can I go to Texas? Should I go to Texas? Now you
15 know you can go to Texas, if you want. We can all
16 become competent by going on the Internet and by
17 doing research.
18 I think there will be a greater
19 proliferation of activities. And yes, I do think the
20 judicial branch of government in this country needs
21 to regulate it. I mean, I don't think they just
22 regulate in-court practice. I think they regulate
23 the delivery of legal services in this country in any
24 framework, in any scheme, in any setting.
25 I am not saying there is a major problem,
1 but I think that the court just can't decide that
2 because they are not licensed in our state, we are
3 not going to have accountability and responsibility
4 to protect the citizens of our state. And to give
5 guidance to the bar. So I don't think anybody says
6 it is a major problem. Certainly, as Bierbauer said,
7 as a court, we are looking at our own law in our own
8 state and we had to make the finding that we made.
9 And I think every state might take the same view. So
10 if they want to relax, then I think we need to do
12 DEAN POWELL: I think Jeanne is absolutely
13 correct. I cannot envision a jurisdiction that would
14 contemplate a friendlier attitude towards foreign
15 lawyers, while at the same time not insisting upon
16 close scrutiny and regulation and ultimate power to
17 sanction those lawyers.
18 So it seems to me that once we even begin to
19 raise the question, Are we going to provide wider
20 arenas for lawyers to practice -- or I should say,
21 Are we going to allow for lawyers to practice across
22 jurisdictions, what we are necessarily saying is that
23 we are also going to allow those lawyers to be
24 reviewed and sanctioned, if necessary, in wider
1 MR. EHRENHAFT: Nothing I said was contrary
2 to that idea. It would just be the different
3 standard that I would follow the suggestion made
4 here, that the only standard that really is
5 appropriate is the competence one and the actual
6 malpractice one. If malpractice occurs due to
7 incompetence or malfeasance or fraud or whatever,
8 certainly the jurisdiction where that has occurred
9 aught to have the ability to take action and it may
10 proliferate but it may not.
11 The defacto situation in this country today
12 is that thousands upon thousands of lawyers are
13 crossing state lines. There are not thousands upon
14 thousands of complaints about incompetent lawyers
15 invading the states from abroad and having a
16 deleterious effect on the population here. So that
17 is an adequate, I would think, could be an adequate
18 rule. But limited just to that, to whoever
19 malpracticed, whether they are licensed here or not.
20 MR. JENKINS: I get your point. Carol?
21 MS. NEEDHAM: Basically, the system, the
22 disciplinary authorities interested in having a
23 record, I think it is important to make a distinction
24 between the discipline imposed in the host state.
25 Obviously, the host state being able to enforce its
1 disciplinary actions there and then the factual
2 records developed in that host state being sent to
3 disciplinary authority in the home state. But not
4 necessarily mandating that the home state exert
5 the exact same physical measure as the host state has
7 So I think there is a certain kind of mutual
8 discretion that different prosecutors may take
9 different views for the same behavior and I suspect
10 that if I were the disciplinary counsel, I would not
11 want to have my hands tied as to one of my guys,
12 based on what some other prosecutor decided to do
13 because I may want to do more. And the record
14 developed elsewhere would be shipped over, but not to
15 require that if they decided to disbar that I would
16 also have to disbar.
17 MR. RAMIREZ: Just think of the great
18 conflict of law course. Real quickly, we had a
19 situation. When I was chair of the disciplinary
20 board in New Mexico, we had an attorney who was
21 working for the United States government. He was an
22 assistant attorney general but he was working in
23 Washington, D.C. I can't remember the exact ruling,
24 but there was an opinion that the United States
25 attorney general had said that they could --
1 MS. NEEDHAM: Thornburg Memorandum.
2 MR. RAMIREZ: Thornburg Memorandum. I was
3 trying to remember the term. Anyway, I think it was
4 Judge Hollaway in Washington, D.C. didn't think that
5 that was right, that she aught to be able to talk to
6 the alleged felon without the presence of his or her
7 own counsel. So she, herself, reported this young
8 man to the disciplinary board.
9 Well, he is not licensed in D.C.; he was
10 licensed in New Mexico. So she reported him to New
11 Mexico. So we had to go and investigate in
12 Washington, D.C. on something that did not occur in
13 New Mexico. So it raised some real interesting
15 JUDGE WAXSE: I think another factor that
16 your comments raised is that Kansas has sort of a
17 fallout from MDP, a new commission. One of their
18 stated goals is to attempt to insure that there is no
19 unauthorized practice of law, which they are defining
20 as including people from Missouri coming over and
21 practicing without a license in Kansas.
22 Within the last year, it was after MDP, that
23 was their response. We have seen it now and it is
24 terrible and we need to stop it. Their stated
25 purpose is to protect the citizens of Kansas from
1 these bad people, but the unstated purpose,
2 obviously, is we have enough lawyers here and don't
3 need these other people.
4 MR. JENKINS: Are you close enough to that
5 situation to shed some light on what has happened?
6 Is their charge, then, to simply identify UPL and do
7 they report it out to some disciplinary or
8 enforcement authority?
9 JUDGE WAXSE: They are in the process right
10 now of doing the impossible, from my perspective,
11 which is first defining the practice of law. What is
12 kind of funny is I got stuck doing this myself in the
13 early 90's. Based again on what the Board of
14 Governors wanted, we came up not only with the
15 definition but with an enforcement mechanism. Sort
16 of using the Consumer Protection Act as a structure
17 that would allow people to get all the normal
18 remedies under that against people that are engaged
19 in the unauthorized practice. But once we looked at
20 it in the early '90's, we decided this was
21 impossible. There is no way we are going to be able
22 to do this.
23 But now this group that is newly formed is
24 taking that old definition and saying we can make
25 this work and we are going to stomp out this
1 behavior. But so far they haven't done anything more
2 than meet to talk about redoing the definitions of
3 the structure.
4 MR. EHRENHAFT: I wanted to follow up on
5 Carol's comments about the problem about the person
6 in the home state not wanting to enforce carte
7 blanche what was suggested by the host state and the
8 perhaps difficulty of the host state to take action
9 against someone who leaves the host state and goes
10 back to the home state and doesn't come back.
11 There again, there are many other situation
12 in our economy and life where the same issue arises
13 and it seems to be handled all right. If you speed
14 in Georgia, you have to appear in court in Georgia.
15 And the fact that you are licensed in New York, they
16 may send -- the fact that you got convicted may
17 appear on the records in New York, but as far as New
18 York taking additional -- fining you in addition to
19 whatever fine you paid in Georgia, there is not going
20 to be an additional fine. It is just going to be
21 that we are going to learn about it and the place
22 where the thing happens is going to take action.
23 With regard to what most lawyers are doing,
24 I think that our product liability laws have shown
25 the way that you can't hide -- if you purposely go to
1 a jurisdiction and offer a good or service and the
2 person is injured as a result of that, our legal
3 system provides for long arm jurisdiction to require
4 you to appear. If the lawyer from New York won't
5 come back to Georgia to defend himself, there will be
6 a default judgment and it can be enforced in his home
8 These are not really insuperable problems to
9 this issue and we shouldn't create or make believe
10 that they are. They can follow logically from many
11 other developments in our economy and society. And
12 one of the things that really surprises and disturbs
13 me about what we have been hearing over and over is
14 as though the legal profession is in some kind of a
15 hermetically sealed container and we only look at our
16 own navels to decide what is good for us and for our
18 We really aught to learn what other
19 countries are doing, what other professions are
20 doing, what other aspects of our economy are doing
21 with not dissimilar problems. And I think that will
22 guide us to a more sensible solution than focusing
23 just on the way that lawyers have done things for a
24 long time.
25 MR. JENKINS: That probably is not too far
1 away from my personal philosophy, too, Peter. I
2 would be interested in what others think about that
3 idea. Let me just toss a question out and then turn
4 to Dick.
5 For example, the analogy you gave about a
6 traffic violation. Maybe that is fine but maybe we
7 aught to hold lawyers to some higher standard because
8 of what they do and because of how they interact with
9 the public and the like. I will put that question on
10 the table just to kick it around a little bit. Maybe
11 some other people have some views about that one.
12 JUDGE WAXSE: I think he is wrong on the
13 facts because most states, when you get a violation
14 in another state, it goes on your record and if you
15 get enough of them, you are going to lose your
16 license even if you didn't do anything in your home
17 state. So I think they do consider what goes on
18 elsewhere and I think --
19 MR. EHRENHAFT: That is what I said. They
20 will mark it in the records, but I don't think they
21 will initiate a separate proceeding.
22 JUDGE WAXSE: But they will take your
23 license if this is your third one or whatever it is
24 you are not supposed to have. I think the lawyers
25 could do the same thing again.
1 MR. WHISLER: That arises out of a
2 multistate compact, the ability for Georgia to have
3 my license revoked in Kansas. We don't have one of
4 those. That may be what we end up with, like the
5 multistate sales and use tax where the states agreed
6 on a procedure we can follow. That takes the
7 political well of not only the supreme courts of the
8 states but also legislatures.
9 I don't have a great deal of confidence that
10 is going to happen, but it might, if it is marketed
11 good. The only way lawyers are ever going to care
12 about this is if someone says I might not get paid.
13 I did this work in California, I am licensed in
14 Minnesota. They knew I was not licensed in
15 California but I don't get paid. That is how you get
16 our attention. MJP threatened people -- excuse me,
17 MDP did, MJP doesn't. If we are going to go anywhere
18 with this, we need to get people's eyes open and make
19 them realize this can affect them.
20 MR. JENKINS: Dick, do you have a comment?
21 MR. WOODS: I want to go back several steps
22 to some comments Peter made about the number of
23 malpractice claims that are brought by clients. I
24 don't know the specific figures, but judging from the
25 little information I have, I would agree. I can't
1 remember whether it was Joe or the judge who made the
2 point that the disciplinary function or procedure is
3 not effectively used.
4 I am in the minority in that I would be one
5 that would favor publication of the results of the
6 disciplinary hearings. But I think there is a lot
7 more malpractice going on out there that never comes
8 to light. Depending upon the relative sophistication
9 of the client, anybody who has been in practice very
10 long knows it is easy to say, It wasn't my fault, it
11 was the judge's fault or it was somebody else's fault
12 so the client thinks he is there with an empty sack.
13 And I think there is also -- when somebody
14 is frustrated with their attorney, unless there are
15 significant stakes involved, the people I have talked
16 to generally don't want to continue to deal with
17 attorneys and they don't want to spend more money
18 having to make their case when they don't think much
19 is going to happen as a result of their coming
21 So I don't think there is widespread
22 malpractice out there, but I do feel that if you go
23 to a multijurisdictional practice, that the state bar
24 associations would have to, and should, devote more
25 resources to the disciplinary aspect. And as I say,
1 I would publicize the actual results. I wouldn't
2 publicize the charges, but once the disciplinary
3 action is concluded, I would make that public.
4 MR. WHISLER: Well, we do that. Any lawyer
5 in Missouri who is reprimanded, suspended or
6 disbarred is published every month.
7 MR. WOODS: Right, but I don't think that is
8 true in every state.
9 DEAN POWELL: In the majority of states and
10 it has been the ABA's position for a number of years.
11 MR. RAMIREZ: Once the specification of
12 charges is filed, as well, most states now say that
13 all that is public record and the hearings are open.
14 When we first adopted that rule in New Mexico we
15 thought, see what happens. Nobody goes to those
17 MS. NEEDHAM: I guess the one thing I would
18 say about client protection is that to have a
19 realistic protective function, it would have to be
20 some sort of Internet available searchable database,
21 not publishing something in a monthly magazine that
22 two years ago somebody had been disciplined is not
23 going to help somebody today.
24 I do know I heard the disciplinary counsel
25 in particular states say to me that in their state's
1 rules, they are unable -- they feel frustrated when
2 someone is calling and they have a choice of hiring
3 two lawyers to handle something. What do you have to
4 say about it? And one has got a big fat file of a
5 number of different investigations, none of which
6 result in public discipline and the other one has
7 been practicing 15, 20 years with never a complaint.
8 They would like to be able to say, Go with Number 2
9 but they can't, because the charges are not public.
10 There is something frustrating to me on the
11 side of the disciplinary counsel to not be able to
12 reveal what the Better Business Bureau can reveal
13 about, you know, floor refinishers.
14 MR. WOODS: I think a disciplinary web site
15 would be great because, again depending on which
16 state you are in, the publicity may be limited to the
17 bar journal that is circulated only to the attorneys.
18 MS. NEEDHAM: It might make the lawyers mind
19 their P's and Q's a little bit better to know it is
20 not just a rap on the knuckle but an ongoing listing
21 on the national --
22 MR. HOLTAWAY: The ABA does maintain a
23 national lawyer regulatory databank that anybody can
24 either write in or call in and ask if a certain
25 lawyer has been disciplined and if it is a matter of
1 public discipline that has been reported to the ABA,
2 you could find out about it.
3 MS. NEEDHAM: But is all discipline reported
4 to the ABA?
5 MR. HOLTAWAY: No.
6 MS. NEEDHAM: Is there any way to get --
7 MR. HOLTAWAY: Almost. We can't force them
8 to report it.
9 MS. GRAY: Virtually every state does report
10 it and several of the federal courts. But to get at
11 the issue you are talking about because private
12 discipline or just multiple dispositions that don't
13 result in a public sanction are never reported to the
15 JUDGE WAXSE: I have a three o'clock hearing
16 so I have to leave. One last thing, it seems to me
17 that one issue that has to be dealt with, at least
18 from my limited perspective, most disciplinary
19 authorities are not enforcing competence. They are
20 mostly focusing on real bad behavior as opposed to
21 just incompetent behavior. And they hold out to the
22 public that it is an ethical requirement that you be
23 competent and yet our apparatus, at least from my
24 perspective, doesn't really seem to focus on that.
25 If we were going to get rid of these artificial
1 barriers and focus on competence, we would have to, I
2 think, start enforcing these competence requirements
3 and not just talk about it.
4 MR. JENKINS: You have talked about examples
5 of where practitioners have come before you and you
6 have personally determined them to be incompetent and
7 taken action to deal with that. If we step back from
8 that sort of personal role that a judge or the
9 judiciary complaint, what are you suggesting to us?
10 What is the mechanism by which we do that?
11 JUDGE WAXSE: Two things. One is, if
12 lawyers really complied with the reporting
13 requirements that they have already, that would help.
14 And I don't think that is going on. And two, I don't
15 think disciplinary authorities generally think
16 competence issues are something they should deal
17 with. It is malpractice, let the civil side deal
18 with it. But at least my experience, from looking at
19 a little bit of the research, you don't see a lot of
20 lawyers being disciplined for incompetence.
21 MR. EHRENHAFT: The point that you make is
22 absolutely right. Most of those people could be said
23 that they are not competent to determine that
24 competence. You are talking about some fairly
25 sophisticated and difficult issues as to what is, in
1 fact, competence and giving advice and therefore the
2 only way it can really be appropriately determined
3 might be through civil litigation where appropriate
4 expertise can be brought to bear on that.
5 JUDGE WAXSE: The ones I turned in were
6 simple -- where they missed two or three deadlines in
7 a row. It is not real tough for me to see.
8 MR. RAMIREZ: Let me ask you real quick,
9 Judge. What about UPL enforcement in Kansas? Is
10 there a lot of UPL enforced.
11 JUDGE WAXSE: No. The only thing that has
12 gone on is there have been a few attorney general
13 actions brought against possie comitatus types but
14 nothing much. This commission claims they are going
15 to get after this and we will see.
16 MR. JENKINS: Judge, thank you for taking
17 the time to join us. We appreciate it.
18 JUDGE WAXSE: Thank you.
19 MR. WHISLER: In Missouri, our regulators
20 have their hands full with people that steal money
21 and get drunk and are on drugs and don't show up for
22 things. We don't have enough people to deal with
23 that. We lack the resolution to fund any further UPL
24 kind of claims, which -- I think we think we would
25 lose, more than likely, on most UPL claims. But it
1 is expensive and we do not have the resources.
2 MR. RAMIREZ: Is yours a criminal statute?
3 MR. WHISLER: No.
4 MR. HOLTAWAY: Are the members of the
5 Missouri MJP committee -- have you been following
6 what is going on in Oregon, Idaho, and Washington?
7 MR. WOODS: Yeah.
8 MR. HOLTAWAY: Have you, in your
9 discussions, reached any type of consensus or are you
10 going to issue a report or send this commission any
11 written comments or --
12 MR. WOODS: I think we are going to next meet
13 on May 11 in Jeff City and then I believe there is
14 one more meeting scheduled in St. Louis. We have had
15 two meetings so far and to date, there has been a
16 great deal of discussion. There is kind of a
17 discussion draft of a proposed rule that has been
18 circulated among the members and presumably will be
19 part of a report that is made to you all. Probably I
20 would say I think they were shooting for June, to get
21 something to you in June.
22 MR. JENKINS: That would be helpful. We
23 have a target date of June 15, although it is not set
24 in stone and we certainly -- I say it this way, that
25 is the target date and we are certainly going to be
1 open to receiving comments and perspective after that
3 MR. WOODS: I think some of the things we
4 have considered are the concept of the driver's
5 license, the idea of a national licensing procedure.
6 The regional compacts just the proposed rule and how
7 that might be tweaked. We have also talked about the
8 difference -- the attitude, and in terms of changing
9 the rule for transactional folks or more to the
10 point, for people employed by private corporations
11 such as I am, as opposed to the litigation
12 environment where I think there is a greater concern
13 that somebody is actually taking money from the
14 licensing jurisdiction's attorney's pockets than
15 there is when somebody for Nabisco or Federal Reserve
16 or GE have their own attorneys going to another
17 jurisdiction to do some work.
18 MR. RAMIREZ: You said you looked at the
19 proposed rule. Are talking about Rule 5.5?
20 MR. WOODS: Yes.
21 MR. RAMIREZ: Ethics 2000 Rule?
22 MR. WOODS: Yes.
23 MR. RAMIREZ: Are you guys far enough along
24 in your work to have a sense as to whether or not you
25 think 5.5 will work? Does it go too far or not far
2 MR. WOODS: I can only speak for myself and
3 unfortunately, the chair of our commission or
4 committee is in Washington, DC and unable to attend,
5 but my personal view is that it is a step in the
6 right direction. I would tweak one of the particular
7 subphrases a little bit to make it a little more
8 broad. That has to do with the -- in fact, I might
9 ask you because at our last meeting there was a
10 little difference of opinion as to how to interpret
11 the rule requirement 5.5.
12 As I recall, 5.5(b)(2)(ii) refers to the
13 lawyer acting with respect to a matter that arises
14 out of, or is otherwise reasonably related to, the
15 lawyer's practice on behalf of the client in a
16 jurisdiction in which the lawyer is admitted to
17 practice. And my reading of that, together with the
18 two sets of comments, meant that the client had to be
19 domiciled or incorporated in the same jurisdiction in
20 which the attorney is licensed. One of our other
21 members read that to mean that they did not have to
22 be in the same jurisdiction. Have you all addressed
23 that? We thought this was a little ambiguous.
24 MR. JENKINS: I don't know that we addressed
25 it directly. I think there was some discussion at a
1 prior hearing. That is work being done by the Ethics
2 2000 Commission and I don't know if Lucien talked
3 about that in a private meeting. Yes?
4 MR. EHRENHAFT: It can't be right that the
5 client has to be in the same jurisdiction.
6 MR. WOODS: It cannot?
7 MR. EHRENHAFT: Yes, because so many of the
8 corporate clients are not domiciled. So it must be
9 read that it has to be related to the lawyer's
10 practice in the jurisdiction. And that is -- I think
11 we have heard from the business law section and
12 others that that is still an excessively narrow
13 interpretation. That is why there are additional
14 safe harbors, so many safe harbors that you will have
15 a laundry list like the ocean.
16 MR. RAMIREZ: Like the hearsay rule.
17 MR. WOODS: I can't remember whether it was
18 the reporter's comment or just the proposed comment
19 that seemed to indicate that they did have to be. In
20 any event, I think you could cure that by just
21 eliminating part of the last line of that paragraph.
22 MR. EHRENHAFT: That is among the proposals
23 that have been made to improve or to modify that. If
24 the Rule 5.5 approach is going to be used at all,
25 that is. I guess we have had discussion about top
1 down versus bottom up focus whether you say
2 everything is allowed except that which is prohibited
3 rather than saying nothing is allowed except what we
4 have sanctioned with these safe harbors. Maybe they
5 get you to the same place, but there is a slight
6 difference in approach.
7 MR. WHISLER: I have had to miss the second
8 meeting, but do we still think that Ethics 2000 is a
9 good start?
10 MR. WOODS: The group that was there -- and
11 you were on the phone, Carol -- the group that was
12 there, I think that Joe felt that it was an
13 appropriate place at least for us to start and then
14 propose some modifications to that rule.
15 MS. NEEDHAM: For what it is worth, my sense
16 of the meetings, both sides, was that it doesn't go
17 far enough. But as far as it goes -- there was one
18 more conservative member but just sort of becoming a
19 better-informed member. But it seemed to me the
20 general gist of it was at least this and now let's
21 see what else. With the idea that it be politically
22 achievable to not be pie-in-the-sky coming up with
23 something that someone academic might think was a
24 great system which doesn't relate to their political
25 realities and abilities.
1 But it is interesting to me that everybody
2 wants to take steps in a direction. It does seem to
3 me that the tide is in a certain direction, yet each
4 group is kind of waiting for another group to --
5 like, I don't want to be so bold so I won't go quite
6 as far as I think we aught to. And we are all
7 waiting for somebody else to be that bold.
8 My sense was that this was certainly not
9 unpalatable to anyone, but we thought more could be
10 done and that whole safe harbor calling on only these
11 things that we were picking apart that and saying,
12 What about a client that I have done a lot of work
13 for? And this place that opens up operation
14 somewhere else and calls me, why shouldn't I be able
15 to take that work on?
16 And we are trying to distinguish between
17 what your listing of inventory of issues has under
18 number seven, eight, and nine. Probably perspective
19 client versus prospective client. And we are trying
20 to draw some lines that I am not sure, personally,
21 are drawable. I think you ought to be able to be, if
22 you are well-known to be an excellent environmental
23 regulatory lawyer or immigration lawyer, you should
24 be able to handle those if someone comes to you to
25 handle and --
1 MR. WOODS: And the other issue that we have
2 also been discussing is if you eliminate the
3 questions of state law and if you are talking about
4 federal law, for example, advising people on federal
5 income tax matters or federal securities law matters,
6 immigration matters, why should somebody licensed in
7 Washington who handles immigration laws not be able
8 to represent a client in the State of California?
9 MR. JENKINS: Let's do this, if we may.
10 Let's hold that question or that comment and take a
11 short break, let people refresh themselves, and then
12 reconvene and start again.
14 MR. JENKINS: Back on the record. I think
15 you had the floor, Carol, just before we broke and I
16 don't know if that is a good place to start or you
17 have probably forgotten?
18 MS. NEEDHAM: As I recall, we were talking
19 about the degree of client choice that we wanted to
20 respect. I think that is really what it boils down
21 to. To the extent that you were kind of asking us
22 about the sense of the Missouri group and we were
23 saying that while 5.5 doesn't go far enough, but at
24 least is a step in the right direction.
25 We were debating about how to respect client
1 choice, particularly the idea that the lawyer is
2 approached in the home state by a client from out of
3 state to do work. And the consensus, it seems to me,
4 please flush it out if you think otherwise, that a
5 lawyer ought to be able to do work directly within
6 their area of expertise regardless of where the
7 client is located who calls upon them to do the work.
8 But that does require self-policing and that gets us
9 back to the competence issue.
10 Certainly, someone that is known as aircraft
11 finance lawyer or an environmental regulation
12 specialist or whatever the area is, then they get
13 calls from people even that they have never done any
14 work for, they want to be able to do that work with
15 whatever travel is involved as opposed to I can stay
16 here and speak to you on the phone but I can't go to
17 the meeting. The point at which I don't think we
18 have scrutinized completely is, is there some way to
19 say you can respond to client request but yet you
20 can't market yourself or instigate.
21 MR. JENKINS: Take the initiative.
22 MS. NEEDHAM: And I am not sure we got a
23 good answer. Speaking personally, I think in the
24 context of the First Amendment and the Went For It
25 decision and the other supreme court cases on
1 advertising and transportation, it seems to me that
2 as long as somebody is complying with the -- not
3 misleading and that kind of standard, I don't know
4 that it makes sense to try to please that particular
6 Would you say the lawyer is marketing
7 himself if he is attending a conference or hosting a
8 seminar and sends newsletters out saying that if you
9 want to get up on the latest OSHA regulations, we are
10 having a cocktail party at my office with an oral
11 presentation? You know, that networking or if you go
12 across state -- or you go to a conference somewhere
13 else out of state and you talk to people and they
14 mention -- I think we have already revisited that
15 with the advertising cessation discussion of a few
16 years ago and I don't think you could possibly try to
17 exploit that.
18 So if you were able to take the work, you
19 should be able to take it. I think it is only in bad
20 taste or improper to go after it on the solicitation
22 MR. RAMIREZ: One of the things that we have
23 heard is that we should not be concerned with market
24 pressures or economic forces and what effect they
25 have on the profession. That we need to focus more
1 on the rules themselves and try to develop rules that
2 don't really reflect that. Do you think that is
4 MR. WOODS: Could you tell me what you mean
5 by market forces?
6 MR. RAMIREZ: For example, in the MDP issue,
7 in this issue as well, we talk about client choice.
8 Well, client choice is maybe a market-driven factor.
9 I may be able to do the services less expensively or
10 I am an A-one expert in the entire United States in a
11 particular area of law and so that client wants me.
12 But because they are in New York and I am in New
13 Mexico, they can't hire me.
14 MR. WOODS: I don't view this so much as a
15 market force, although we just may be using different
16 words. I think this goes back to what I said, and a
17 couple of people echoed, at the very beginning and
18 that is, I think the focus of this rule should be to
19 reflect what, in fact, is occurring. And I think the
20 focus or that the rule should be viewed from the
21 perspective of the client.
22 In other words, I think to the extent that
23 this rule is changed or marketed for change, on the
24 point Joe mentioned, and that is you have the
25 possibility of losing your fee if there is a fallout
1 with the client, that is a little bit -- I don't
2 know, I don't like that approach.
3 MR. RAMIREZ: But you do feel that if the
4 Commission recommends a rule or whatever, that your
5 personal position would be that it should reflect
7 MR. WOODS: Yes.
8 MR. EHRENHAFT: There are two points to
9 follow up on. One is that we have heard from judges,
10 for example, who say that if you have rules for good
11 reasons, the fact that the market or other people
12 don't like it or that it is inconvenient or so on, is
13 not a sufficient reason to change it or to abandon an
14 appropriate rule of ethical behavior. The fact that
15 it is inconvenient to a lot of people and that the
16 clients are not the only beneficiaries of the legal
18 The legal system has a much broader scope
19 and the responsibilities of lawyers extend far beyond
20 just clients we are serving. We are officers of the
21 court to uphold a justice system. And that argument
22 then is used, for example, by the Akron Bar to say,
23 if we are serious that we want lawyers to be in a
24 position to uphold the justice system, they have a
25 legitimate interest in their economic well-being and
1 that their practices are not sucked away by
2 carpetbaggers from other states and so on, who want
3 to have a vibrant local bar that can do pro-bono work
4 locally, to do other kinds of things we need to the
5 administration of justice. This is an argument.
6 I am not saying this is fact, but it is a
7 point of view that certainly has been expressed. And
8 I think it requires, if you don't agree with it, a
9 principled kind of approach that recognizes that
10 there is certainly valid, viscerally valid points
11 being expressed.
12 MR. WOODS: I would guess that most of those
13 judges are probably older judges, but I would
14 disagree. I think they are muddling the regulatory
15 side with the ethics side. I think you can have this
16 rule and still have the ethics issue be of paramount
17 concern but I just don't -- the rule is not just
18 inconvenient, the rule is being ignored.
19 Again, if the fact that the rule is being
20 ignored, in other words, given what reality is, if
21 there was substantial detrimental fallout to the
22 client and the public, I would be the first one
23 arguing to say the rule shouldn't be changed, it
24 should be enforced. But I don't hear that to be the
1 I also think, with respect to the Akron
2 concern about having a vibrant bar and everything, I
3 think if the rule is changed, I would also not buy
4 into any kind of a floodgates argument that there is
5 suddenly now going to be wholesale interstate
6 practice. I think what is happening now will
7 continue. I am sure it will increase to some degree,
8 but I don't see local bar associations going
9 bankrupt, so to speak, because all the money is going
10 to the Texas lawyer or the Washington D.C. lawyer.
11 I think to some degree maybe the lack of
12 response, when you get away from, I think, the big
13 cities and the important financial centers and when
14 you get away from the cities that are on the state
15 line. I mean if you are down in Jefferson City
16 Missouri and you are talking about somebody who
17 practices domestic law or real estate law, unless it
18 is a very unusual situation, they are just going to
19 be practicing in Missouri and this doesn't matter to
20 them. They are not going to lose money as a result
21 of this.
22 MS. NEEDHAM: It does seem to me a principle
23 objection to the current situation. It seems to me
24 that that is actually what precipitated this whole
25 commission. That it is not a question of business as
1 usual or we can make more money doing it a certain
2 way, it is that let's question authority. You know,
3 from the '60's and '70's.
4 Let's investigate the foundation, let's
5 investigate the premises of the UPL restrictions.
6 These are not ancient origin. They are relatively
7 recent and are they correctly placed. Are they
8 protecting clients' interests and all the legitimate
9 purposes or not? And if they are not correctly
10 placed, if the foundation is incorrect, then it aught
11 not be continued just because we have had it this way
12 for decades. I think it is really a principle thing.
13 MR. EHRENHAFT: Can you articulate
14 differences between, quote, ethical rules that you
15 think are appropriate and, quote, merely regulatory
16 rules that the judges shouldn't involve themselves
18 One we have heard a number of times is we
19 shouldn't elevate to ethical rules, rules that are
20 simply rules of either convenience or regulation or
21 have other foundations but they are not, quote,
22 ethical. Ethical, I guess, means don't steal. Is
23 competence an ethical rule or a regulatory rule, for
25 If the lynch pin of regulations should be
1 competence only, is the obligation not to practice
2 law except in that which you are competent a
3 principle of ethics or is this just something that is
4 regulatory and appropriate because the state has an
5 interest in making sure the public is protected?
6 MS. NEEDHAM: I think it is both and not
7 inconsistent that it be.
8 MR. WOODS: I guess my initial reaction,
9 Peter, as you were talking, is to think of competence
10 as being not an ethical issue. I think of ethical
11 issues as being, as you say, not stealing from the
12 client; regardless of what your practice is, not
13 having a romantic affair with your client; not
14 engaging in a conflict of interest where I represent
15 one party and then three days later take a case or
16 three months or three years later, a case that is
17 adverse to that former client.
18 I think of ethics in that sense, whereas the
19 competence issue -- and I wish I could think of
20 something off the top of my head that would be
21 analogous that is other than a driver's license or
22 something like that.
23 MR. EHRENHAFT: I mention it because if you
24 guys are formulating a report that you are going to
25 submit and you had some thoughts about that, I think
1 it would be very useful because the theme has come up
2 on a number of occasions. There is, I think, some
3 confusion or a lack of understanding as to is there a
4 difference between them and if there is, what are the
5 implications of that difference.
6 MR. HOLTAWAY: I have a question, too. For
7 your committee, have you heard from your membership?
8 Have you heard from people saying that the rules have
9 got to be changed and this is unfair?
10 MR. WOODS: I don't know. Probably the
11 person best able to answer that would be Keith Burks,
12 I would guess, who is the executive director. He has
13 not mentioned anything to me.
14 MR. HOLTAWAY: Another question, we sit
15 around and say we have got to change the MJP rules
16 because the clients want it or the clients demand it
17 and they deserve this and they have a right to
18 choice. Have you heard from clients or the public?
19 MR. EHRENHAFT: Is that the right question,
20 John? Maybe it should be the other way around. Has
21 anybody said that we have got to keep our system
22 because this is important to us? The facts are that
23 the rules are being ignored. I don't think there is
24 a question about that.
25 So if they are being ignored, is that a
1 phenomenon that the clients are not going to say we
2 need to change the rules because we find them
3 inappropriate to what we want? Because they are able
4 to meet their needs because people aren't following
5 the rules.
6 MR. WOODS: I would also speculate to say
7 that most clients are not aware of this problem at
8 all. I can't imagine outside counsel coming up to me
9 and saying I would be glad to help you there and I
10 want to help you there, but you need to understand I
11 am licensed to practice law in Colorado but not in
13 MR. EHRENHAFT: You might say, however, to
14 the extent that this particular transaction has an
15 element of Colorado law and I am not admitted there,
16 I am going to rely on and associate with the Colorado
17 lawyer, get a Colorado opinion.
18 That is a very usual aspect of practice, as
19 well. Particularly with regard to formalities of
20 closing transactions that may depend upon local law,
21 you may want to do that. So I think there is some
22 element of client awareness in that context.
23 MS. NEEDHAM: To the extent they are aware
24 of it, it probably seems a lot better. To have a
25 local lawyer and a lawyer that you are familiar with
1 and trust. And the explanation of why you are
2 needing both, I don't think has ever been heard well
3 by CEO. As far as I can tell, we were doing one
4 transaction, you could do the whole thing.
5 MR. JENKINS: I find that it depends, in my
6 experience. Often it turns on the sophistication of
7 the client and/or the business folks you are working
8 with. Some of them are very attuned to it and you
9 don't in fact need to tell them about it, they will
10 come to you and say, What are we going to do about an
11 opinion on Iowa law? Particularly if it is an arcane
12 issue, so sometimes, it comes the other way.
13 I will be the first to admit I don't see it
14 that often in the scope of what I do from my little
15 corner of the world. More often than not, my antenna
16 is up and I am trying to be sensitive where I need to
17 advise the client that here is a situation or an
18 aspect of the representation where we need local
19 counsel to give us some guidance.
20 MR. WOODS: One thing that was discussed at
21 our last meeting, again approaching this from the
22 perspective of the client and carving out for the
23 moment the area of litigation is, why should the
24 client have to incur that double hit, so to speak, in
25 a transactional matter where the individual who is
1 retained, albeit perhaps not licensed in California,
2 is fully versed on the law and able to represent the
3 client without having to associate with local
5 I think the people that were at our last
6 meeting recognized that there was a difference with
7 respect to litigation. For instance, knowledge of
8 local rules. And that none of us would go into a
9 foreign jurisdiction without, at least to some
10 extent, local counsel in the litigation environment.
11 MR. JENKINS: Here is an example for me in
12 the real estate area. I am sometimes asked to
13 represent lenders who are financing, providing
14 financing for transactions that cover several
15 jurisdictions. The facilities or the assets are in
16 disparate locations. Well, I don't always know in a
17 particular jurisdiction what kind of opinions you may
18 have to give on qualifying to make the loan or do the
19 transaction. So to me, it is a situation where I
20 have got to get local counsel to talk to me about
21 those kinds of issues.
22 MR. WOODS: Either that or reporting
24 MR. JENKINS: Yes, right.
25 MR. WOODS: But what we were all saying is
1 again, maybe it is the concept of self-policing. You
2 understand that and so in those situations, you have
3 the wisdom to say to the client, We need to get
4 somebody in Omaha, Nebraska, who is familiar with
5 their recording rules or something of that nature.
6 But there may be an instance where you don't need to
7 have association with local counsel to help you on a
8 particular real estate matter.
9 MR. WHISLER: Anthony and I were talking
10 over break. Clay County, Missouri is just across the
11 river from Kansas City. I am licensed to practice
12 there. I would never try a case in Clay County
13 unless I had a Clay County lawyer sitting there with
14 me. Tell me about the judges and sometimes they do
15 and sometimes they don't. That is driven by
16 malpractice concerns. It is not where I am licensed,
17 it is can I do a good job.
18 To answer John's question, as a member of
19 the state bar, both as MDP and MJP, we have never
20 heard of it, were it not for the ABA. It would never
21 have come to us as something to think about. It is
22 not a concern in Missouri. I have more concerns than
23 other people because I do national and international
24 stuff but, but for the two commissions, we have never
25 talked about it.
1 MR. EHRENHAFT: You have just raised the
2 dirty word that I wanted to talk about, which is the
3 word international, because we do have also, as part
4 of our committee, to think about the international
5 implications of this matter. In that regard, there
6 are two things. One is, of course, there are foreign
7 clients that would like to retain Americans because
8 Americans practice in a certain way and do counsel
9 clients with a certain approach, draft documents in a
10 certain style that many clients recognize as the best
11 in the world and they want that kind of advice.
12 For example, when an Italian company wants
13 to do business with a Japanese company, the Japanese
14 don't speak Italian and Italians don't speak
15 Japanese. Therefore, both of them are as likely as
16 not to retain American lawyers to draft documents in
17 English that they both can read and understand; and I
18 have been in many such transactions.
19 So there is a real market for American
20 lawyers to pursue this very interesting practice but,
21 of course, out of the total number of lawyers in
22 America, it is a small number. Nevertheless, it is
23 not totally insignificant.
24 And Commence Department figures indicate
25 that last year, for example, the value of American
1 legal services exported abroad were valued at $2.8
2 billion, which is not small change. My own view is
3 that $2.8 million is probably only 50 percent of the
4 correct number, because a lot of the amounts that
5 are, in fact, exported legal services are not
6 recorded in the balance of payment techniques that
7 are used because transfers between affiliated
8 companies, for example, are not recorded. So
9 receipts by foreign officers of American law firms
10 from foreign clients are not included in that number,
11 although I think, conceptually, they really aught to
13 We are talking about not an entirely small
14 number and there is certainly an interest in the
15 American legal services market to export our
16 services. We say we have got so many lawyers we have
17 got to export some of them. We have got surplus
18 wheat and surplus lawyers. We also have a
19 comparative advantage in terms of what legal work
20 foreigners want.
21 The USDR is very anxious to assure American
22 lawyers greater opportunities to practice abroad.
23 And under the General Agreement on Trade and
24 Services, the GATT 2000, negotiations are starting
25 now. They were actually started in March of this
1 year on opening foreign markets to 12 principle areas
2 that have been selected by the USDR for immediate
3 attention. These include express delivery services
4 like FedEX; they include certain financial services,
5 Telecom and legal services.
6 Legal services is one of those that we want
7 to promote. However, if you want foreign countries
8 to allow American lawyers to be able to go there and
9 practice as lawyers, you have got to say your lawyers
10 can come here. And on that score, the United States
11 is not in a very good position. Less than 50 percent
12 of the states of the United States have adopted
13 foreign legal consultant rules, which is kind of the
14 minimum basis upon which foreign lawyers aught to be
15 allowed to practice. That is a more restrictive
16 basis than the kind of stuff we have been talking
17 about for cross-state practice, but I don't even know
18 whether Missouri and Kansas have foreign legal
19 consultant rules. Does anybody have that?
20 MR. HOLTAWAY: Not off the top of my head.
21 MR. EHRENHAFT: Anyway, if you don't, I hope
22 that one of the things you can think about is whether
23 you can follow the ABA's -- and the ABA is on record
24 in urging all state bars to have foreign legal
25 consultant rules adopted in their jurisdictions. The
1 fact that we can't even say that half of our
2 jurisdictions allow foreign legal consultants is a
3 real detriment and barrier to our ability to request
4 foreign countries to allow access to our lawyers.
5 MS. NEEDHAM: Would that alone be sufficient
6 or is there --
7 MR. EHRENHAFT: That would go a long way.
8 In the jargon of the GATT, there are four ways in
9 which services are delivered. One is that you
10 actually go to the foreign place and hand it over.
11 Two is that the foreigner comes to your place and
12 gets it. Those are modes one and two, but those two
13 modes are not really on the table.
14 The two modes that are important is mode
15 three, which is establishing an office in the foreign
16 country and that is where foreign legal consultant
17 rules are important. There are probably not more
18 than 100 U.S. law firms that want to open offices
19 abroad, but a most recent survey indicates that there
20 are close to 375 offices in foreign countries now
21 operated by U.S. law firms, which is not an
22 insignificant number. Most of the people who are in
23 those offices are actually not Americans but are
24 locals, but they are all managed by Americans so that
25 is the one population.
1 The foreign legal consultant rule
2 essentially addresses the possibility that foreigners
3 could come here and open offices here in that same
4 way without taking a bar exam. That is what the
5 foreign legal consultant rule is. It would allow
6 foreigners to come to the United States, open an
7 office, hold themselves out as foreign legal
8 consultants, which we suggest should also be based on
9 competence. That is, they should be able to practice
10 whatever they are competent and allowed to do in
11 their home country.
12 So if they are a Hungarian lawyer but they
13 also know Czech law or English law and you could
14 practice that in Hungary, then you should be able to
15 practice Czech and English law in the United States,
16 too. The only prohibition would be you can't
17 practice in Missouri certain aspects of Missouri law
18 unless you are a partner or associate of a Missouri
20 MS. NEEDHAM: There are a couple of little
21 pieces. One is that I know Washington, and a number
22 of the other states that didn't have foreign legal
23 consultant regulations, have not licensed very many
24 people at all.
25 MR. EHRENHAFT: The reason for that is that
1 the foreigners take the bar exams here.
2 MS. NEEDHAM: They go ahead and become
4 MR. EHRENHAFT: And that is because they all
5 speak English and they can take the bar. Whereas,
6 American lawyers don't speak Slovakian, Hungarian,
7 and Japanese so they can't take the bar exam abroad.
8 So there are thousands of foreign lawyers who have
9 passed the bar and that is why, as a practical
10 matter, it is not merely as important as the
11 perceptional matter and the regulatory matter that we
12 have these rules on the books so that we can say they
13 can come here.
14 MS. NEEDHAM: It seems to me in terms of the
15 perception of the local bar in terms of adopting
16 changes, it is not like there is going to be a tidal
17 wave of people taking advantage of it.
18 MR. EHRENHAFT: To illustrate further what
19 you are saying, Carol, the Colorado Supreme Court was
20 poised to adopt the foreign legal consultant rule on
21 the initiative of the Colorado Bar Association. They
22 received from the Colorado Bar Examiners a statement
23 that, Why do we need this? There is nobody who has
24 applied for to Colorado to be a foreign legal
25 consultant so let's not give us more work to do or
1 create a further regulation.
2 On that basis, apparently, they decided they
3 wouldn't adopt the rule. It is true, there is very
4 little likelihood that there are going to be 1,000
5 Japanese suddenly coming to Kansas City to open their
6 offices here to take away all the work in Kansas
8 MS. NEEDHAM: The other thing, I am sure you
9 have even more information that I have, it is
10 astounding to me how many of the foreign legal
11 consultants actually perform work for the nationals
12 of that country who have immigrated here to the U.S.
13 So people were, for example, inheriting properties in
14 the other country and the foreign legal consultant
15 was handling their appeal, the claim to their
16 grandfather's estate back in the other country or
17 handling business issues that related really to the
18 people who had immigrated from that country.
19 No U.S. lawyer could possibly know the
20 intricacies of estate planning in Hungary as well as
21 the lawyer who had been trained in that. I don't
22 think there is a whole lot of lawyers who would
23 legally pick up that because you know you are not
24 competent to do it. So that whole discussion was
25 premised on this big business but it was describing
1 to me that the whole access of the delivery of
2 services to not even necessarily middle class, but
3 working class and striving people, really it is
4 implicate. It is important the only reason it is
5 complex because New York apparently never comes up
6 with a here is who is right now trafficing as a
7 foreign legal consultant and the --
8 MR. EHRENHAFT: There is no requirement to
9 maintain an office.
10 MS. NEEDHAM: Right. The point is that in
11 New York, because anyone who has ever applied is sort
12 of carried on for 20, 30 years, since 1974, they have
13 had their standards to have gone back to that foreign
14 country. You don't know how many people you are
15 going to deal with in New York because there is no
16 current --
17 MR. EHRENHAFT: Carol, that same is true
18 with regard to membership of the bar. The New York
19 State will keep people, quote, members of the bar,
20 but whether you are an active member of the bar
21 requires payment of $150 a year. So some of those
22 foreign legal consultants who were inducted or
23 whatever, they also have to pay that if they want to
24 keep active and probably I think that information can
25 be obtained. You have to ask about the active dues
1 paying ones and then you will see. I think there is
2 something like 500 foreign legal consultants that
3 have been registered in New York, of which they think
4 that there may be 200 presently practicing.
5 MS. NEEDHAM: Right.
6 MR. JENKINS: Let me educate myself a little
7 bit on this. Let's suppose two months from now,
8 every state in the union adopts a policy, or
9 whatever, permitting foreign legal consultants.
10 Would your expectation be then that the number of
11 registered foreign legal consultants would increase?
12 MR. EHRENHAFT: It would increase very, very
13 marginally because the fact is that the 24
14 jurisdictions which have foreign legal consultant
15 rules are in each of the states where there is
16 probably the greatest interest of foreigners. That
17 is New York, Michigan, Illinois, California, Texas,
18 and so on.
19 And we have often been told when the
20 Japanese raze us, Well, you don't have it in all
21 jurisdictions. Well, if any Ben Goshi wants to
22 practice in Boise, Idaho, you let us know and we will
23 push it through the Idaho court. And there has never
24 been anyone accepting that challenge. So I don't
25 think that it would have a tremendous practical
1 impact on the American practice. What it would have
2 an important impact on is our ability to request that
3 foreigners open their doors to American lawyers
4 whether they are from Idaho or wherever.
5 MR. JENKINS: Is it something that non-U.S.
6 signatories to the GATT are asking for or demanding?
7 MR. EHRENHAFT: Absolutely, yes.
8 MR. JENKINS: As a quid pro quo for opening
9 their market.
10 MR. EHRENHAFT: That is the way these
11 international negotiations operate. That you
12 exchange concessions, if you will, or market opening
13 concessions. In the past, the GATT opened the market
14 by reducing tariffs and eliminating quotas on goods.
15 Now that the services are included in the same
16 regime, the regulatory barriers to service are the
17 equivalent of tariffs.
18 MR. JENKINS: I understand. The reason I
19 was asking these questions is because it struck me
20 that if it has no practical effect or benefit in
21 terms of increasing the number of foreign legal
22 consultants in the United States, is it more symbolic
23 from their side of the bargaining table? It seems
24 they are saying this is important to them, but maybe
25 it isn't in the practical sense.
1 MR. EHRENHAFT: It isn't in the practical
2 sense, but it is an excuse that they have to close
3 the market to our people. So our interest is
4 primarily that we have a real interest in exporting
5 legal services to foreign countries and we don't want
6 to give them that excuse. But this is all Mode
8 Mode Four is transitory services and that is
9 a more significant aspect of international practice.
10 There may be only 200 American lawyers practicing
11 abroad and 400 American lawyers practicing in all
12 these foreign offices of American firms, but there
13 are tens of thousands of American lawyers who go for
14 short periods of time to foreign countries as I do,
15 as many others do.
16 Of the 12,000 members of the ABA's
17 international law section, I would bet that at least
18 70, 80 percent occasionally travel to foreign
19 countries and practice law there. Foreign countries
20 have the same unauthorized practice rules as the
21 United States does. We want to assure in the GATT
22 that there will be an exception for transitory
23 services, and lawyers by no means are alone in that
25 There are doctors; there are accountants;
1 there are architects; there are engineers; actuaries;
2 all kinds of professional services. And there are
3 two issues that are going to be discussed in the GATT
4 negotiations on what is called a horizontal basis, as
5 distinguished from a sectorial basis. That is, is
6 the rule going to be applicable to all service
7 sectors? Legal services is a vertical sector. The
8 rule about transitory entry is going to be a
9 horizontal issue applicable to all kinds of
11 The idea is that each country will commit
12 that professionals licensed as such by their home
13 country will be permitted to enter to provide
14 temporary professional services of that same type in
15 the GATT countries. Now, can the United States sign
16 onto something that it is demanding of all these
17 countries when our rules not only don't allow a New
18 Yorker to go to Kansas, but then how are they going
19 to allow a Kenyan or a Britain or so on to come in on
20 that basis?
21 Is it conceivable that we would have a more
22 liberal rule for foreigners than we have for our own
23 citizens? Yet that may be one of the consequences of
24 this GATT negotiations. And this is not something
25 that is hypothetical; this is going on this month.
1 So I think it is an issue that we would like to hear
2 what the state bars are going to do. What is their
3 view of that kind of a situation?
4 MR. RAMIREZ: Kind of a reverse equal
5 protection problem.
6 MS. NEEDHAM: Or reverse privilege of
8 MR. EHRENHAFT: Well, the problem is this.
9 That in fact, the USDR probably will not offer more.
10 Because they will say, We can't offer this because we
11 have no ability to do so. And that may then prevent
12 the United States from obtaining the benefits of
13 something that so many lawyers in transactions really
14 think that they need and want. We don't want to be
15 arrested in France.
16 MR. JENKINS: I don't know. Does any of
17 this resonate with practice in this locale? I don't
18 know how much international legal work goes on in
19 Kansas City.
20 DEAN POWELL: We have pharmaceuticals,
21 engineering, and agribusiness; and all three of those
22 are very powerful.
23 MR. RAMIREZ: My brother lived in Liberty,
24 Missouri but he has been employed by Bayer and he
25 spends half the time in Germany.
1 DEAN POWELL: And also Sprint has world-wide
3 MR. RAMIREZ: Is that why my Sprint phone
4 works here?
5 MS. NEEDHAM: And a number of other business
6 companies in St. Louis.
7 MR. WHISLER: My partner was in Geneva last
8 week at a world aviation show and we took out a full
9 page ad in the trade magazine. There is more than
10 you would think. We probably violated several laws
11 by taking that.
12 MS. NEEDHAM: Actually, in some ways, it is
13 interesting because that brings us back to lawyers
14 are not necessarily concerned about it but the fact
15 that they are doing it and it doesn't register that
16 they are doing anything wrong because it is not
17 fundamentally improper. It doesn't violate any
18 ethical rules. I don't want to get off that --
19 MR. RAMIREZ: I live in Las Cruces, New
20 Mexico, 40 miles away from El Paso, Texas. I go once
21 a week to El Paso to take a deposition. You know,
22 the doctors are down there, there is a witness or
23 whatever. Isn't that unauthorized practice of law in
24 the State of Texas?
25 MR. EHRENHAFT: Well, the transitory entry
1 on the international scene has implications on
2 immigration law, which is one of the really difficult
3 aspects to it. But, in fact, when most of us travel
4 to a foreign country, we get a tourist or a business
5 visa which is similar to the U.S. business and/or
6 tourist visa. Those visas specifically prohibit you
7 from engaging in work for remuneration in the country
8 that you are visiting. So that all of the foreigners
9 who come here on behalf of Bayer, who come here and
10 work and get paid and so on, they are violating U.S.
11 immigration law and the Immigration Service looks the
12 other way. They are not really interested in
13 cracking down on it.
14 But we are similarly violating foreign
15 immigration laws when we enter and the only people
16 who seem to care at all are the Canadians, who hassle
17 American lawyers from time to time about pointing out
18 that NAFTA has not guaranteed that lawyers from the
19 United States can go up to Canada and just practice
20 law without being licensed. But you can josh them
21 and say, Well, I am not going to be paid here, I am
22 just here to talk to some client.
23 But, in fact, this is an overlay, but I
24 don't suggest that your association, or that we, get
25 into that separate issue. We just want to look at it
1 from the point of view as regulation lawyers that
2 immigration law, I think can be handled if there was
3 commitment that this kind of temporary access by
4 professionals were permitted. We are talking about a
5 GATT visa that would specifically reference modes for
6 delivery of professional services as an exception to
7 the immigration rules, I think the United States
8 would probably accept that, too.
9 MR. RAMIREZ: Is there a perception, or
10 maybe a reality, that this is an issue that only
11 affects a very small number of lawyers?
12 MS. NEEDHAM: I think only a small number of
13 lawyers are aware of it but the more you explain to
14 people, the more they realize, Oh, that is me. In
15 fact, a number of really small firms have said to me
16 -- in fact, one in particular.
17 You were talking earlier about family
18 practice and they were saying they had divorce cases
19 across state line where one spouse wants to move out
20 of state or family estate planning issues where there
21 was real estate held out of the estate or one of the
22 parents now live in a different state but what
23 actually sounds like -- really small, close to home.
24 These were people that practice in very small offices
25 or people who were sort of the Norman Rockwell type,
1 like they could literally walk to work in a small
2 town, having issues cropping up with
3 multijurisdictional practice. The thing is they don't
4 necessarily run into any road blocks because of it
5 except for their own conscience. Nobody is policing
6 it or cracking down on it yet, but it is there.
7 DEAN POWELL: Carol spoke earlier about many
8 lawyers not being particularly concerned because of
9 the conduct of doing what they normally do does not
10 violate ethical norms and I immediately thought that
11 not only does it not violate any ethical norms in the
12 sense that it doesn't cause any bells and whistles to
13 go off, but from the other side, when you look at it,
14 it is absolutely necessary for lawyers to do the
15 things they are doing. They are not economically
16 viable, they are not really lawyers unless they are
17 willing to do those things.
18 So when you have a situation in which you
19 have people who are dedicated to the law and are
20 trying to do the right thing and they suddenly
21 discover that what they are doing is prohibited by
22 some rule, you really get a disconnect.
23 When the comment was made by Larry a few
24 minutes ago -- I can't remember exactly what he said
25 -- but I was thinking, Well, it is not only if you go
1 to Texas and give that opinion that it is a
2 violation, but it is also when you ask the question,
3 Am I violating Texas' law by going into Texas from
4 New Mexico and taking a deposition. And I answered,
5 Yes, you are, then I am violating Texas law, too,
6 because I am giving a legal opinion about what the
7 law is in Texas.
8 This is the level of complexity with which
9 we are dealing and it is absurd.
10 MR. RAMIREZ: Joe knows there is a lot of
11 question about what the law is in Texas.
12 MR. EHRENHAFT: There is only one law in
14 MR. RAMIREZ: The law of the west.
15 MS. NEEDHAM: Let me just say, that is it
16 exactly to the extent that you are loyal to your
17 client, that loyalty to your client is what puts you
18 in a compromising position with rules and regulations
19 and the loyalty to the client is a good thing.
20 MR. WHISLER: I will say this. People don't
21 really think about this as only applying to a few
22 people. People don't think about this, period. If
23 you bring it up to them, they will think about it.
24 But it is news to us, basically, that anybody even
25 thinks about this stuff.
1 MR. RAMIREZ: A lot of people, the
2 perception is that solo and small law firm
3 practitioners are not impacted by MJP or by MDP and I
4 tend to disagree with that. Just given the number of
5 solo small firm practitioners in the United States,
6 you have to have some impact on them one way or the
7 other, just from a practical setting.
8 MS. NEEDHAM: It is one of the main events
9 at the solo small firm -- Missouri Bar solo small
10 firm practice annual conference May 3rd and 4th.
11 This topic, MJP, is one of the centerpiece issues on
12 the panel and a couple of us are speaking at it and
13 it is of great interest, especially to solo small
15 MR. WHISLER: Actually, Missouri has common
16 borders with more states than any other state in the
17 Union. We have common borders with 7 or 8 states.
18 Arkansas to Iowa to Kansas and Illinois are the big
19 ones, but we touch a little piece of -- I think it is
20 Tennessee, Kentucky, Oklahoma, Arkansas. We are the
21 center of the world.
22 MR. EHRENHAFT: Larry, in the MJP situation,
23 in fact, we were told that part of it was incorrect
24 to believe that the pressure from this was coming
25 only from large firms who wanted to compete; that it
1 was at least as many small practitioners that said we
2 have got to associate with real estate brokers, with
3 tax preparers, with funeral parlors, with other
4 professionals in our towns because they are taking
5 our business away and --
6 MR. RAMIREZ: That is the competitive side
7 of it, but I think that people look at MDP and maybe
8 MJP, too, just from the economic protectionist
9 position and I think you can look at it from the
10 standpoint that solo and small firm practitioners
11 could use an MDP or an MJP to better their practice,
12 to improve the service they deliver. But that is
13 also a separate issue.
14 But what I was going to say was, when I go
15 to El Paso to take the deposition, I don't think
16 about it as having anything to do with the State of
17 Texas, other than just the circumstance of the
18 locale. I am there on a New Mexico case, a New
19 Mexico plaintiff. It is just the circumstances of
20 the fact that they have got a border there that makes
21 me have to go there to do it.
22 So violating the law -- am I really
23 violating the law? Am I violating the intent of the
24 law? No, I don't think so. And if there was harm,
25 who is being harmed?
1 MR. EHRENHAFT: The Texas lawyer that would
2 be engaged to do it if you couldn't.
3 MS. NEEDHAM: But look at the inefficiencies
4 about getting someone else involved.
5 MR. EHRENHAFT: I am not defending it, but
6 if you want to know --
7 MS. GRAY: Certainly, that is why 5.5 has
8 been modified by Ethics 2000, at least to that point,
9 to facilitate the legal representation on behalf of
10 clients who have to go interstate in order to be
11 competent in their delivery of legal services.
12 I had one process question about your
13 committee. I think you said that you are hoping by
14 June to be able to file something with us that will
15 touch on several paramount issues that we are
16 interested in. Are you then going to share this
17 information with the Missouri Bar, itself? Has
18 anything been done to date -- have you had any
19 hearings or quorums?
20 MR. WHISLER: There has been an article that
21 this is going on. This is a committee of the Board
22 of Governors so they report to the Board of Governors
23 and it is the Board's decision whether to pass this
24 on or not. I expect what will happen in our meeting
25 in May is we will tell them what is going on and they
1 will say that sounds fine, go ahead. In terms of
2 town halls or anything like that, no.
3 MS. GRAY: Would you then post it on the web
4 site or announce it to the members that they could
5 comment on it?
6 MR. WHISLER: It will be in the bar journal.
7 We can certainly request comment. We had three or
8 four on MDP. Actually, not a lot of people showed up
9 in town halls so I don't feel any drive towards that
10 now so it will eventually be a report from the
11 Missouri Bar, basically saying what they said. That
12 is how it will work.
13 MR. EHRENHAFT: Talking about process, do
14 you intend to comment on, for example, you are
15 familiar with the ACCA Proposal, with the green card
16 proposal of April, and the driver's license thing.
17 MR. WOODS: The only person who really has
18 not been given an assignment in that respect was Joe
19 because he was not at the meeting. But the rest of
20 us have each been given an aspect to draft to include
21 in the report. I was going to ask Joe to do all of
23 MR. WHISLER: You can ask.
24 MR. WOODS: Yes, those all will be covered.
25 MS. NEEDHAM: Let me just point out that the
1 members of the committee are each of them are people
2 who have large constituencies and active roles in
3 other groups so they are hearing from the membership
4 of their respective -- the Kansas City Bar
5 Association, the St. Louis Bar Association, the
6 various groups that they are otherwise active in.
7 MR. WHISLER: Court of appeals judge.
8 MS. NEEDHAM: It is intriguing the levels in
9 which you intersect. I had lunch with a couple of
10 supreme court justices the day before. It was very
11 interesting because I was talking to the incoming
12 chief judge about MJP and he was extremely interested
13 and talked all about it because he was on his way but
14 more information was needed and that struck me that
15 is probably pretty common. Not that people are
16 hostile to it, but that they are aware of it
17 peripherally and haven't yet focused, I would say
18 that characterizes aware of it as an issue and
19 concerned about it as an issue, to the extent they
20 focus very much and would like to get moving on it.
21 MR. WHISLER: Dean Powell knows there was a
22 lot of hostility to MDP. But we are not seeing any
23 of that. Dean Powell did a wonderful job fending off
24 rocks and things.
25 MS. NEEDHAM: The Missouri Bar did a very
1 comprehensive study of where people's opinions were
2 and how they intersected and, in fact, it is just now
3 getting published. The study that was presented to
4 the commission examined the law journal so it is sort
5 of a very extremely thorough, extremely expensive
6 effort to find out why people felt the way they did.
7 So I don't know if we are to do another one, but we
8 can do it.
9 MS. GRAY: I was just curious. If you come
10 forward with some what would be considered very
11 progressive recommendations in your report and you
12 file them with the ABA, and we don't do anything with
13 them, is there a real interest and an energy within
14 Missouri to go forward to your own court?
15 MR. WHISLER: No.
16 DEAN POWELL: No.
17 MR. WOODS: The only thing that I did hear
18 thrown out, I think it was interest in this regional
19 compact in exploring that, particularly on the
20 Illinois/Missouri side of St. Louis.
21 MR. JENKINS: Is that part of the same
22 commission's work?
23 MR. WOODS: Well, the commission is supposed
24 to -- I think we are going to have a section where we
25 comment on the existence of a regional compact. And
1 I don't know whether it will go so far to suggest if
2 a compact would work for Missouri and if so, which
3 state should it attempt to negotiate something. In
4 my impression, Kansas would not be receptive to that.
5 But that will be addressed.
6 MR. RAMIREZ: What is the history behind the
7 Kansas and Missouri --
8 MR. HOLTAWAY: It goes back to early 1820.
9 MR. RAMIREZ: I was kidding when I told
10 Burnele about the Civil War.
11 MR. WHISLER: Quantrell did burn down
12 Lawrence and many people think that is a good idea.
13 But really, Kansas City is the big city and the big
14 firms now have offices in Johnson County., and a lot
15 of small firms.
16 MS. NEEDHAM: Which state is that?
17 MR. WHISLER: That is Kansas. It is kind of
18 where everybody went in the '60's, leaving us in a
19 mess in the school system. When I started 30 years
20 ago, there weren't any big firms in Johnson County
21 and the people in Johnson County were up in arms for
22 a while. If I took a deposition in Kansas, I had to
23 have a Kansas lawyer sit there next to me doing
24 nothing. That is the worst it got but it is still,
25 as the judge said, it sounds like they are coming
2 DEAN POWELL: As a matter of fact, I was
3 talking to someone just recently who said they had a
4 deposition scheduled in Kansas and that they had gone
5 to the location and were ready to take the deposition
6 and opposing counsel said, You don't have a Kansas
7 lawyer. And he said, What are you talking about?
8 You know me. We have been practicing, etc., all
9 these years. And he said, No, not going to take it.
10 So he had to then call, I think it was a
11 weekend at some odd hour, and connect his partner who
12 was attending a wedding or bowling or doing something
13 relaxing and bring him to Kansas and sit there while
14 he took the deposition because the attorney, his
15 partner, was licensed in both jurisdictions.
16 MR. RAMIREZ: And it is the unauthorized
17 practice of law.
18 MR. WHISLER: That does not happen much.
19 MR. WOODS: I am licensed in Illinois, as
20 well, and when I came back to Kansas City in '79,
21 Missouri had reciprocity so I was admitted to the
22 Missouri Bar by reciprocity. At that time, Kansas
23 Bar also had reciprocity and I forgot how many years
24 after that I was a fool not to try to get it, but a
25 few years after that, they shut the gate on that. So
1 for me to be licensed in Kansas, I would have to take
2 the bar exam.
3 MR. EHRENHAFT: I represented a Florida
4 company against a German company that was a supplier
5 in a termination of distributorship and the German
6 defendant was finally persuaded by his American
7 lawyer to come to Florida to be deposed. We had
8 Florida counsel. And I went to the deposition and
9 the Florida lawyer objected to my participation
10 although I was the only person who could speak German
11 and therefore could understand how the translator was
12 mistranslating what was being said. So we had to
13 take it to the judge. And then the guy got very
14 red-faced because the judge really excoriated him for
15 raising what he thought was an absolutely frivolous
16 objection to my participation in the deposition.
17 MS. NEEDHAM: That is a really important
18 thing. The duty of loyalty to actually represent
19 that client the best way possible is being detained
20 by a very small-minded legalistic in the worst
21 sense --
22 MR. EHRENHAFT: Attempted to; he failed.
23 DEAN POWELL: I think that when Joe
24 mentioned that Kansas City is the big city, that is
25 really the crux of this. States have long asserted
1 concern of whenever it is a situation where they
2 believe that some large economic interest is going to
3 be able to affect one way or another the operations
4 in their jurisdiction.
5 Like it or not, Kansas City, Missouri is a
6 lot larger than any of the other economic centers
7 around this metropolitan region. And I think that it
8 would make a lot of sense to review this entire
9 region as one economic and social region, which is
10 what it is, in fact. But when it comes to the law,
11 it is not treated that way. We treat this as
12 territory or as a pie that is to be divided and you
13 can take your portion and we take our portion.
14 Whether clients are served by that, I think
15 is an open question. How they are served by that is
16 a mystifying question.
17 MR. JENKINS: On that note, let me ask if
18 there are other comments or perspectives, or even
19 anecdotes, that people want to bring before the
20 hearing. I want to give everybody an ample
22 MR. RAMIREZ: I just have one matter that I
23 wanted to see if anybody had thought about. And
24 again, this is something that came up in the MDP but
25 really I think it may have an impact here, as well.
1 What if the congress or the legislature, or some
2 other governmental agency other than the courts,
3 became involved in the regulation of the business of
4 law and said that pursuant to their commerce clause
5 powers, they are going to say that you don't need a
6 license in every state or they are going to decide
7 what competence means. Is that something that we
8 need to be afraid of or not?
9 MR. EHRENHAFT: Who would provide such an
10 effort without sponsorship?
11 MR. RAMIREZ: Orin Hatch comes immediately
12 to mind.
13 MR. EHRENHAFT: I don't think so. Honestly,
14 Larry, I don't think that Orin Hatch would view, if
15 you are talking about a national licensure procedure
16 as --
17 MR. RAMIREZ: Say the consumer groups; the
18 Naders of the world. I am not sure there would be a
19 Ralph Nader with regard to this particular issue, but
20 someone that said consumers are not being protected.
21 Lawyers are protecting themselves and the consumer is
22 the one that needs to be protected so therefore we
23 need federal legislation in this area or some other
24 means of regulating the practice of law.
25 MR. WHISLER: Seems to me like the Tenth
1 Amendment would apply.
2 MR. EHRENHAFT: I think there is a good
3 adequate commerce clause argument to be made of it.
4 We have lawyers crossing state lines to represent
5 people if it were to be asserted but --
6 MR. RAMIREZ: The commerce clause was used
7 in the '60's to prevent violations of civil rights so
8 the commerce clause is for a lot of different
10 DEAN POWELL: This is obviously a scenario
11 where lawyers can have fun because you can speculate
12 about lots of things. So I will say with that
13 preface that I am only speculating, but it does seem
14 to me that the regulation of courts is a peculiar and
15 singular function of the various state jurisdictions.
16 And that because it has historically been, I would
17 anticipate that it always will be.
18 One of the reasons why I think it always
19 will be is because the regulation of the court is an
20 extension of the power of coequal branch of
21 government in most jurisdictions. It goes to the
22 very heart of the capacity of these governing
23 institutions to call themselves states, that they
24 will have the power to determine what the laws are
25 and how those laws are to be interpreted in their
2 MR. RAMIREZ: That is part of my concern,
3 Burnele, because I have heard the argument that if
4 NAFTA had applied the Bierbauer we would have had a
5 different result in Bierbauer.
6 DEAN POWELL: It is certainly, I think, true
7 that if we could establish some other norms and
8 replace the ones that we presently have, we could get
9 different results. But it seems to me that is really
10 not the question. The question is how stable are the
11 norms we have.
12 MR. RAMIREZ: NAFTA is a treaty. If these
13 guys had been Mexican hired, they would have been
14 unable to collect their fee.
15 MR. EHRENHAFT: I don't think that is
16 necessarily true because the legal services chapter
17 of NAFTA has not been --
18 MR. RAMIREZ: I just am --
19 MR. EHRENHAFT: As a hypothetical, that
20 would be like the GATT story, too. The foreigners
21 would have greater rights than domestics. But in the
22 present situation, it is one of the tragedies
23 actually of NAFTA that while NAFTA is going so well
24 with regard to virtually every covered sector and the
25 three bar associations, the ABA, the Canadian Bar,
1 the Mexican Bar, embraced and said we are going to
2 work together, we are going to open the market. Here
3 it is now six years later and they haven't come to an
4 agreement yet on it. It is one of the few areas
5 where NAFTA has broken down.
6 DEAN POWELL: I would say NAFTA hasn't
7 broken down in that respect because with all due
8 respect to all those bar associations, they are not
9 the authority. The authority is in the courts and
10 the authority in the court is based upon the state's
12 MR. EHRENHAFT: No. The treaty power of the
13 United States, I would suggest, supersedes state's
14 regulatory functions by any agency of the state and
15 NAFTA was a treaty which committed the United States
16 and its states and this is one of the questions
17 whether in GATT they are going to do the same thing.
18 I am doubtful that they will because they got burned
19 in the NAFTA situation. But NAFTA purports to -- you
20 know Missouri versus Hollands?
21 DEAN POWELL: I want to respond. I don't
22 think we have had that case yet. We have not had a
23 case where the United States has attempted to say
24 that by function of the national power to engage in
25 treaties, we are going to, in effect, extract power
1 from the judicial branch in a state. That case has
2 not been litigated before and, at this point, if I am
3 allowed to speculate, I am going to speculate on the
4 basis of each jurisdiction being able to say the
5 judicial power is unique.
6 It is not like the executive authority. It
7 is not even like the legislative authority. In a
8 democratic government such as ours, it is the
9 uniqueness of that judicial authority, its ability to
10 check the excesses underlined, to check the excesses
11 of the two branches, the political, the oriented
12 legislative branch which might very well see all
13 kinds of popular reasons to exceed state authority
14 and the executive branch which can see all kinds of
15 good reasons for efficiency and popularity to exceed
16 state authority.
17 MR. EHRENHAFT: Green versus Covert was the
18 only case where the Supreme Court held, as far as I
19 know, that the treaty power could not be used to
20 override the fundamental rights of Americans. That
21 was the right of trial by jury. The only case and
22 that focused on what the limits of the treaty power
23 in the international context were. I don't think
24 that the power of the judiciary to regulate who can
25 appear before it begins to approach the notions of
1 fundamental rights of Americans the way that Green
2 versus Covert does.
3 DEAN POWELL: I would disagree on that. I
4 would say that goes to the very fundamental question
5 about --
6 MR. EHRENHAFT: Not under qualification of a
7 lawyer to appear in court.
8 DEAN POWELL: Absolutely. I think it goes
9 right down that fundamental level.
10 MR. JENKINS: That will be the last word on
12 MS. NEEDHAM: Actually, I have a separate
13 question unrelated to judicial law. Just an
14 observation of this work performed that a non-lawyer
15 could to. To take this to a very mundane level that
16 lawyers aught to be able to certainly do what a
17 non-lawyer could do and the privilege of evidentiary
18 analysis which is going to operate the way privilege
19 analysis goes is that a lawyer should not be able to
20 do less than. To take us out of the whole
21 international atmosphere. That is my personal view.
22 MR. JENKINS: I believe that is one of the
23 proposed safe harbors in one of the models we have
24 been examining. I personally like that idea, too but
25 I think it is subject to counter arguments. It
1 strikes me intuitively that I shouldn't be, quote,
2 unquote, penalized because I have my lawyer hat on
3 and here is another guy who is not a lawyer who can
4 do the very same thing.
5 MR. EHRENHAFT: But the countervailing
6 argument is that when you are a lawyer and hold
7 yourself out as a lawyer, the client and others
8 expect more of you and even though the tax
9 practitioner and the real estate broker and others
10 who might be able to give some kind of advice that is
11 like legal advice, the client doesn't expect the same
12 kind of competence, if you will, and therefore it
13 would not be right to say just because they can do
14 consulting services on this, that, and the other,
15 that lawyers should be able to do it on the same
16 basis. Because you are a lawyer and that is
17 something that you are wherever you are; therefore,
18 the appropriate standards apply to you at all times.
19 MR. JENKINS: Understood.
20 DEAN POWELL: I want to say that I am much
21 appreciative of the commission for deciding to hold
22 this public hearing here in the Midwest and to do it
23 in Kansas City. It has been most illuminating to
24 hear this discussion and I believe that the
25 transcript of this discussion will serve the
1 interests of the legal profession mightily and will
2 reflect admirably upon the work of the American Bar
3 Association, so I thank you for coming.
4 MR. JENKINS: We appreciate being here and
5 invited. You were out of the room when we started
6 our discussion, but I did want to put on the record
7 that we very much appreciate the law school hosting
8 us and particularly your work and that of your staff
9 in coordinating everything for us. It has been a
10 great experience and we really appreciate it. With
11 that, I guess I will close us out. I want to thank
12 you all for coming out and sharing your perspectives
13 and helping advance this whole discussion. Some of
14 you I will see, no doubt, in Miami or whenever our
15 paths next cross. Thank you.
1 C E R T I F I C A T E
4 STATE OF MISSOURI )
5 COUNTY OF JACKSON )
6 I, Debbie Haney, Notary Public, with offices
7 at 1930 Commerce Tower, 911 Main Street, Kansas City,
8 Missouri 64105, do hereby certify that I was present
9 at the taking of the proceedings as set forth in the
10 caption sheet hereof; that I then and there took down
11 in shorthand the proceedings had thereat, and that
12 the foregoing 101 pages constitute a true and correct
13 transcript of such notes made by me at said time and
16 IN WITNESS WHEREOF, I have hereunto set my
17 hand and seal, this _____ day of May, 2001.
24 Debbie Haney