Ethics 20/20 Commission Proposes to Remove More Barriers to Cross-Border Practice
Posted Sep 9, 2011 11:45 AM CST
By James Podgers
The ABA Commission on Ethics 20/20 this week posted its latest series of draft proposals for comment.
The four proposals largely focus on how ethics rules should be amended to make it easier for lawyers in the United States to engage in cross-border practice. Three of the preliminary recommendations would amend either the black letter or comments in various provisions of the ABA Model Rules of Professional Conduct, and the other proposal would amend the ABA Model Rule on Admission by Motion.
As law practice becomes more global, “clients increasingly demand and expect that their lawyers will be able to handle legal matters that cross jurisdictional lines,” said Andrew M. Perlman, the commission’s chief reporter, in an email response to questions submitted by the ABA Journal. “The commission’s proposals, if adopted, would give lawyers more freedom to satisfy these marketplace demands while ensuring that lawyers do so competently and in a manner that is consistent with the profession’s core values.”
To some extent, the Ethics 20/20 Commission is picking up where the Commission on Multijurisdictional Practice left off in 2002, when a series of its recommendations were adopted by the House of Delegates. Those measures, largely incorporated into the Model Rules, constituted the first steps toward allowing lawyers to practice, at least temporarily, in jurisdictions in which they are not licensed, and to seek admission by motion in a state without taking its bar exam. They also identified circumstances under which foreign lawyers may practice temporarily in the United States. Many of these provisions have been widely adopted at the state level.
“The Ethics 20/20 Commission concluded that it is not necessary to revamp the basic framework that the MJP Commission created because that framework has worked quite well for lawyers, clients and the public,” said Perlman, a professor at Suffolk University Law School in Boston. “Nevertheless, the commission concluded that clients and the public would benefit if lawyers had somewhat more freedom to handle the increasing number of legal matters that implicate multiple jurisdictions.”
The commission will produce final versions of the draft proposals prior to submitting them to the ABA’s policy-making House of Delegates for consideration in August at the association’s 2012 ABA Annual Meeting in Chicago.
The commission was created in 2009 to consider the impact of technology and globalization on professional conduct rules for lawyers and to develop recommendations to modify those rules where appropriate.
The draft proposals posted today would:
• Amend the Model Rule for Admission by Motion (PDF) to allow lawyers in one U.S. jurisdiction to seek admission by motion in another jurisdiction if they have been engaged in the active practice of law in the first jurisdiction for three of the prior seven years. Currently, the rule requires that lawyers to have been engaged in law practice for five out of the prior seven years.
• Add a new provision to Rule 5.5 of the Model Rules of Professional Conduct permitting lawyers to practice in a new jurisdiction for up to a year while he or she pursues admission to practice there, subject to certain requirements. The commission’s proposal (PDF) also would add language to the comments to Rule 5.5 aimed at clarifying what would constitute providing legal services or having a continuous presence in the new jurisdiction.
• Amend Model Rule 1.6 to permit a lawyer moving to a new firm to disclose confidential information about current and former clients to a reasonably necessary extent to determine if a conflict of interest would arise if the lawyer associates with the firm. Those disclosures would be subject to a number of restrictions. Read the proposal (PDF).
• Add a new comment to Model Rule 1.7 describing circumstances under which a client and lawyer may, in cases involving more than one jurisdiction, choose which jurisdiction’s conflict of interest rules will apply. But the commission decided not to recommend changes to the black letter of Rule 1.7, and is urging the ABA Standing Committee on Ethics and Professional Responsibility to study the issue and consider preparing an opinion on how the Model Rules apply to it. Read the proposal (PDF).
Right now, the Ethics 20/20 Commission plans to issue only one more draft recommendation, on the subject of alternative business structures for law firms. Perlman said the commission is leaning toward proposing that nonlawyers be permitted to have very limited ownership interests in law firms. “The possible proposal is similar to what has existed in the District of Columbia for more than 20 years,” he said, “but the commission’s version will contain several additional restrictions to ensure lawyer control and client protection.”
The commission is expected to post that draft recommendation by the end of September. The commission also will soon start issuing revised versions of draft proposals that it has released for comment over the past few months. The commission will seek further input on the new versions before finalizing them, Perlman said.