Now in Legal Rebels:
Posted Jan 01, 2004 07:19 am CST
It took the ABA two years of intense effort to develop and adopt model ethics provisions making it easier for lawyers to practice at least temporarily in states where they are not licensed.
That may have been the easy part of the process.
Now, the changes approved in 2002 by the ABA’s policy-making House of Delegates to provisions in the Model Rules of Professional Conduct governing multijurisdictional practice by lawyers are coming under the scrutiny of the 50 states and other U.S. jurisdictions.
That review process is inherent in the structure of regulating professional conduct by lawyers in the United States. The ABA Model Rules have no binding effect on lawyers even though they serve as the basis for most state ethics codes. It is the rules adopted at the state level that directly regulate the conduct of lawyers.
And with every jurisdiction now involved, the process of reviewing and revising rules on a far-reaching issue like multijurisdictional practice can be lengthy.
In the 17 months since the ABA amended the Model Rules to ease restrictions against multijurisdictional practice, six states–Colorado, Delaware, Nevada, New Jersey, North Carolina and South Dakota–have enacted new rules that lower the barriers against temporary practice by out-of-state lawyers. (The laws of two states–Michigan and Virginia–specifically authorize occasional or incidental practice by out-of-state lawyers.) By late 2003, proposals to revise MJP rules were pending in at least 13 other jurisdictions.
That amount of activity after such a relatively short time is encouraging to Wayne J. Positan, the Roseland, N.J., lawyer who chaired the ABA Commission on Multijurisdictional Practice. But he also cautions that the entire review process could take up to 20 years.
“We realized from the outset this was going to be a long, evolutionary process,” says Positan.
An even greater concern for proponents of easing rules on multijurisdictional practice, however, is that the states will not agree on uniform rules, leaving a patchwork of regulations imposing varying requirements on lawyers who seek to practice temporarily in outside jurisdictions.
It’s too early in the process to discern any clear trends in what specific MJP rules are being adopted by the states, says William P. Smith III, general counsel to the State Bar of Georgia. Early on, at least, the revised ABA Model Rules appear to be getting a favorable response from the states, he says.
“I think they’re ultimately going to be accepted by most jurisdictions because they’re reflective of what’s actually going on,” says Smith.
Susan Hackett, senior vice president and general counsel of the Association of Corporate Counsel in Washington, D.C., says the real challenge is getting each state to understand the value of uniformity in MJP rules.
Hackett says some states are adopting the revised ABA rules almost exactly as they’re written. But other states, including such powerhouses as California, seem determined to write their own versions of the rules or to pick and choose among those rules they are willing to accept and those they don’t want, she adds.
“If each state passes reform, but each state’s reforms are slightly different from all the others, the end result could be worse than having no reform at all,” says Hackett. “Lawyers will find it practically impossible to sort out the varying obligations that a matter involving three or 10 or 50 states might involve.”
Some states are not clear yet on how far they are willing to loosen their rules on MJP, says Anthony E. Davis of New York City, the immediate-past president of the Association of Professional Responsibility Lawyers.
“Obviously, this whole scheme will work best if everybody agrees to treat each other’s lawyers on the same terms,” he says.
The big question at this point, says Stephen Gillers, is whether a “critical mass” of jurisdictions will adopt revised Rule 5.5, the key provision in the ABA Model Rules of Professional Conduct that covers multijurisdictional practice.
Gillers, a law professor at New York University, chairs the MJP subcommittee of the ABA Joint Committee on Lawyer Regulation, which provides liaison to states considering revisions to their professional conduct rules.
Under revised Model Rule 5.5, a lawyer admitted in one U.S. jurisdiction may provide legal services on a temporary basis in a second jurisdiction under any of the following circumstances:
• The lawyer is affiliated with a lawyer licensed in the second jurisdiction who actively participates in the matter.
• The lawyer is preparing for pending or potential litigation and is admitted to appear in the proceedings or reasonably expects to be admitted.
• The lawyer’s work in the second jurisdiction is incident to a pending alternative-dispute-resolution proceeding and is reasonably related to the lawyer’s practice in a state in which he or she is admitted.
• The lawyer’s work arises out of practice in a jurisdiction in which the lawyer is licensed.
Another provision in Model Rule 5.5 would permit an in-house lawyer licensed in one state to provide legal services in another state on behalf of the lawyer’s employer. (Many states already have this type of admission category.)
The revised Model Rules also would make it easier for experienced lawyers who are licensed and in good standing in one state to be admitted by motion in another state, which would relieve them of the burden of taking the second state’s bar exam. While many states already permit lawyers to seek admission by motion, widespread adoption of the ABA’s version of the rule would bring greater uniformity to the process around the country.
Another provision in the revised Model Rules proposes standardized procedures for admitting out-of-state lawyers to appear pro hac vice before a court or an administrative agency. Every state already permits pro hac vice admission, but the rules vary. The revisions to the Model Rules also provide for foreign lawyers to engage in temporary practice in U.S. jurisdictions and provide for the licensing of foreign lawyers with U.S. clients as legal consultants.
The difficulty of achieving uniformity in rules governing multijurisdictional practice–or any other ethics rules–in a system in which more than 50 jurisdictions govern lawyer conduct is illustrated by the actions so far of the few states that have considered the ABA’s MJP proposals.
Of those six states, two–Delaware and North Carolina–adopted rules that essentially track the ABA Model Rules, according to experts in the ethics field. But Colorado and Nevada adopted rules that vary from the ABA provisions.
The Colorado rule, for instance, essentially states that out-of-state lawyers in good standing in their home jurisdictions may practice temporarily in Colorado as long as they do not establish a residence or a place for the regular practice of law.
Robert R. Keatinge of Denver, who co-chairs the state’s multijurisdictional practice committee, declines to describe Colorado’s rule on temporary admission to practice as more liberal than the ABA’s version. “We just made our rule simpler,” he says. The Nevada rule (which actually was adopted just before the ABA adopted its revised rules), on the other hand, takes a more restrictive approach to temporary admission to practice. Under the rule, lawyers from other jurisdictions who provide legal services for Nevada clients in connection with transactional or extrajudicial matters pending in or substantially related to Nevada must pay a $150 filing fee and submit an annual report.
The report must describe the nature of the clients for whom the lawyer provided services subject to the rule and the number and nature of the transactions performed for each of those clients during the previous year.
In September, the New Jersey Supreme Court approved a more restrictive version of the ABA’s rules on temporary practice and admission of in-house counsel. But the court rejected a proposed admission-on-motion rule and a proposal to allow lawyers who graduated from non-ABA-accredited law schools, including foreign ones, to sit for the bar exam in New Jersey.
Varying approaches to MJP regulation also are showing up in proposals under consideration in other states, say ethics experts who are tracking the process. In June, for instance, the New York State Bar Association’s House of Delegates approved a provision that varies from ABA Model Rule 5.5 in at least one important respect. The Model Rule would authorize out-of-state lawyers to provide certain legal services in a jurisdiction in which they are not admitted “on a temporary basis.”
The proposed New York rule, which now goes to an administrative body of the courts for final approval, would replace the “temporary basis” language with a provision that more specifically prohibits an out-of-state lawyer from establishing “an office or other systematic and continuous presence” in New York.
The increasingly widespread review of MJP rules around the country has stirred increased interest among states in admission by motion, and its twin, reciprocity admission, according to George Riemer, general counsel of the Oregon State Bar. Idaho, Oregon and Washington implemented a reciprocal admission arrangement several years ago, says Riemer. Maine, New Hampshire and Vermont are developing a similar arrangement.
Georgia and Utah also have new rules providing for reciprocal admission agreements to be reached with other states, and several states are considering them, including Arkansas, Montana and South Dakota.
“Slowly but surely, states are lifting bar examination requirements for out-of-state lawyers who graduate from ABA-accredited law schools, have a reasonable amount of experience and pass good moral- character checks,” says Riemer.
One area that the states have not begun to address adequately, cautions Wayne Positan, concerns rules on when foreign lawyers may practice temporarily in the United States. In April, the State Bar of Georgia’s board of governors proposed new MJP rules to the supreme court that include what apparently are the first provisions in the country to address temporary practice by foreign lawyers, according to bar counsel William Smith.
Meanwhile, impetus to revise rules governing foreign practitioners may be coming from other places.
For instance, the General Agreement on Trade in Services, an agreement reached by the United States and nearly 150 other countries that belong to the World Trade Organization, is due to take effect in 2005. Under GATS, a member country must publish rules regulating practice by foreign lawyers within its geographic boundaries. That process raises particularly complex issues in the United States, say experts on the agreement, because the legal profession is regulated primarily by the states. That means the U.S. standards for practice by foreign lawyers will somehow have to accommodate the rules of practice in place at the state level.
(An ABA task force was recently created to study issues raised by the GATS negotiations. The association also maintains a Web page on GATS, at www.abanet. org/cpr/gats/gats_home.html.)
Other issues also must be addressed, say experts in the ethics field.
In addition to lawyer conduct codes, notes Riemer, many states have unauthorized practice of law statutes. And those states must synchronize their statutes and conduct codes to assure that lawyers from other jurisdictions are not violating UPL statutes even though they are operating within the provisions of the conduct codes.
The states must also grapple with the perplexing issue of how to effectively police out-of-state lawyers who are permitted to engage in temporary practice activities within their jurisdictions, say Riemer and others.
Amendments to the ABA Model Rules of Professional Conduct generally give states jurisdiction to discipline lawyers from other jurisdictions who are practicing in the state temporarily. At this point, says Riemer, most jurisdictions appear to be following that approach.
Stephen Gillers says any patterns in state approaches to multijurisdictional practice regulation should take shape over the next 12 to 24 months. He and other proponents of easing restrictions on MJP express confidence that the states will go in that direction. “I’m an optimist,” Gillers says. “And based on everything I’ve seen so far, I’d say the prospects look pretty good.”
Mark Hansen is a senior writer for the ABA Journal.
Mark Hansen is a senior writer for the ABA Journal.