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July 30, 2003

California Bar Fractiously Endorses Multijurisdictional Practice (MJP)

Filed under: pre-06-2006 — David Giacalone @ 5:06 am


Demonstrating considerably more contention than did their colleagues in New York State in June, “California State Bar leaders on Saturday [July 26, 2003] endorsed proposed rules that would open the practice of law to out-of-state attorneys.” However, according to an article in The Record, the decision came only “over the protests of a vocal minority who say the changes do not adequately protect the public.” (from Law.com, by Mike McKee, July 30, 2003). (as of 9 PM, 7/30/03, text of the proposed rule changes not yet available at the California State Bar website)


The report in The Record explained that:



“The rule changes were proposed by a state Supreme Court committee in May, and would open California’s courts to all licensed public interest lawyers, in-house counsel and attorneys practicing temporarily in the state on either litigation or non-litigation matters.”


“[A] handful of Bar governors, including two of the non-lawyer public members, argued that the ideas were being pushed too fast and that State Bar staff anticipate that 3,000 out-of-state lawyers might swarm into California.”


“The California Supreme Court will make the final decision and has asked for input by Jan. 1. The State Bar has asked for more time to make added comments.”


“Among concerns were that the proposed rules do not require out-of-state lawyers to register when they arrive, nor are they required to contribute to the state’s Client Security Fund, which repays people who have been bilked or badly represented by California lawyers.”   [emphases added] 


In contrast, only a month ago, as reporter John Caher noted in The New York Law Journal (06-25-03), the New York State Bar Endorsed MJP, with far less contention. However, the support was conditioned on subjecting the out-of-jurisdiction attorneys to New York’s disciplinary rules and authorities.


The New York Law Journal reported that NYSBA’s House of Delegates adopted “recommendations designed to provide attorneys and consumers with additional options without infringing on the privileges of the New York Bar, undermining the protections that shield law clients or unduly practicing a form of economic protectionism.”   According to NYLJ, various NY Bar leaders stressed that New York should be in the forefront of adopting rules which recognize the realities of current multi-jurisdictional practice and which foster such practice; and, given the need of many New York attorneys to practice in more than one jurisdiction, there are obvious benefits in promoting a uniform standard governing multijurisdictional practice.”  Click here to see the proposed changes to DR3-101 of NY’s Model Code. 


The NY endorsement was quite different in tone from that in California, where lawyers worried aloud about an influx of 3,000 attorneys from other states.   Thus, when announcing the decision, Thomas A. Levin, President of the NYS Bar Association stated (per a July 15, 2003 press release):



Permitting a lawyer who has been admitted in another jurisdiction to provide limited services in New York that do not create an unreasonable risk to the interest of clients, the public or the courts enhances our position as a legal center and improves lawyers’ abilities to meet client needs more efficiently and effectively. .


As a nation fully engaged in multi-state, transcontinental and worldwide commerce, but functioning with an economically outdated state and local system of admission and regulation for the law profession, there is clearly a pressing need for a modernized and uniform system allowing practice across state lines. The new system should permit MJP to operate in a manner that protects clients (from incompetence or financial loss), and allows lawyers to serve the needs of clients, while preserving the ability of the states to exercise adequate supervision and discipline.



MJP Resources:


The ABA Multijurisdictional Practice Task Force Web Pages: contain a significant amount of information and analysis on the many issues raised by MJP — issues of legal ethics, bar admission, regulation of lawyers and the unauthorized practice of law. The Commission appears to have undertaken an objective and comprehensive national study, and its proprosals were adopted by the ABA House of Delegates in August, 2002.


Task Force Final Report: Introduction and Overview  gives a useful summary of the history of the problems, issues presented, principles applied, and proposals made and adopted.  The Introduction points out:



“The existing system of lawyer regulation has costs for clients. For example, out of concern for jurisdictional restrictions, lawyers may decline to provide services that they are able to render skillfully and ethically. In doing so, they may deprive the client of a preferred lawyer including, at times, a lawyer who can serve the client more efficiently and economically than other available lawyers by drawing on knowledge gained in the course of prior work for the particular client or by drawing on expertise in the particular subject area. . . . These costs are real, not merely hypothetical, for the clients of both transactional lawyers and litigators. Irrespective of the low risk of enforcement, lawyers and law firms take jurisdictional restrictions seriously.”


.


New Model Rule 5.5 UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW. And, the Comment on Rule 5.5.


(Chart) State Adoption of MJP Rules Compares each state on a number of factors related to MJP (May, 2003).


Lessons from the Multijurisdictional Practice Commission: The Art of Making Change, by Stephen Gillers, 44 Ariz.L.Rev. 685 (Fall/Winter 2002)


 


 

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