ABA Ethics 20/20 Asks: Should Lawyers Have More Leeway to Practice Across State/Country Lines?
The ABA Commission on Ethics 20/20 is expanding the scope of its look into possible changes in rules governing cross-border practice by lawyers.
Today, the commission released an issues paper (PDF) that seeks comment on two more approaches to dealing with cross-border practice.
One option, according to the discussion draft, would be to amend Rule 5.5 of the ABA Model Rules of Professional Conduct to authorize more domestic cross-border legal practice than the rule currently allows. The second option would be to consider whether multijurisdictional practice issues should be addressed through the larger structure for regulating lawyers rather than under a single ethics rule.
Comments on the MJP issues paper are due by June 1.
The commission will consider that input as it decides what, if any, recommendations to make relating to cross-border practice. The commission, which is taking a comprehensive look at how ethics and lawyer regulation are being affected by technology and globalization, is expected to submit the bulk of its recommendations for consideration by the ABA House of Delegates at the association’s 2012 Annual Meeting in Chicago.
“MJP always has been on the commission’s agenda,” said Andrew M. Perlman, chief reporter to the commission, in an email response to questions from the ABA Journal. “Globalization and technology are quickly transforming the legal marketplace, both here and abroad. Technology has made it considerably easier for lawyers, especially solos and small-firm lawyers, to service clients wherever they might be. And globalization has increased clients’ demands for lawyers who can provide services across state and national lines.”
The question the commission is grappling with is how to respond, said Perlman, a professor at Suffolk University Law School in Boston. “The legal profession needs to adapt to these changes,” he said, “but it’s not clear whether—or to what extent—the MJP rules need to change to ensure that lawyers can continue to provide clients the services that they need.”
The question of whether rules on multijurisdictional practice should make it easier for more lawyers—possibly including those from foreign countries—to practice at least temporarily in U.S. jurisdictions where they are not already licensed has been on the commission’s agenda since late 2010.
In November, the commission issued a discussion draft (PDF)—which does not constitute a formal recommendation or policy position—that outlined how a lawyer from another jurisdiction might assist on a case in the context of outsourcing.
And in December, the commission released an issues paper (PDF)—which again, does not set forth a recommendation or policy position—that seeks outside comment on whether rules on admission by motion should be revised to make it easier for lawyers to practice in jurisdictions where they are not already licensed.
It’s been nearly a decade since the ABA took a hard look at MJP. In August 2002, the House of Delegates approved revisions to Model 5.5. that made it easier for lawyers to do work in jurisdictions where they are not licensed if they are working with a lawyer licensed in the host state, performing non-litigation work related to their home-state practice, or providing litigation services in a state where they expect to be admitted pro hac vice.
Since then, 14 jurisdictions have adopted the revised version of Model Rule 5.5. Another 30 jurisdictions have adopted the rule with variations, many of which are even more permissive than the model rule. (The Model Rules are the direct basis for professional conduct rules for lawyers in every state except California.)
“The 2002 amendments to the Model Rule have facilitated cross-border legal practice throughout the United States,” notes today’s Ethics 20/20 issues paper. “Lawyers, however, have an even greater need to engage in domestic cross-border practice now than when the House of Delegates adopted the MJP Commission’s proposal nearly ten years ago.”
