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At the American Bar Association’s annual meeting in Washington in August, one of the most important reforms in recent professional history was passed: the recommendations of the ABA’s Commission on Multijurisdictional Practice. The MJP Commission’s recommendations now become a part of the Model Rules of Professional Conduct (and amend other model rules of practice, as discussed below). Since the model rules are just that, it is now up to authorities in each jurisdiction, including the District of Columbia, to either adopt, amend, or reject them. Most states will likely consider updating their rules with these new provisions within the next year or so; a number of states already have commissions working on this issue, some of which have issued reports for the comments of their membership and the consideration of their licensing and admission authorities. Does this proposal have a major effect on corporate counsel? You betcha. Here’s how it affects you, and what you can do to get involved to help your state bar ensure that MJP reforms are enacted in your neck of the woods. The MJP Commission issued several proposals, all of which passed. In addition to a reaffirmation of its support for state regulation of the legal profession, subsequent proposals deal with reforms of Model Rules 5.5 (unauthorized practice of law) and 8.5 (professional conduct), related reciprocal disciplinary rules, admission by motion or waiver rules, a model pro hac vice rule, and a reaffirmation for the state adoption of foreign counsel licensing procedures. Here’s an overview of what passed; for details (and for more MJP resources and information generally), see www.abanet.org/cpr/mjp-home.html or www.acca.com/inhouse/mjp.php. • Model Rule 5.5 now includes two kinds of multijurisdictional practice authorizations — for temporary practice and permanent practice. The permanent practice authorizations apply only to corporate in-house counsel, government lawyers, some nonprofit public service lawyers, military lawyers, and certain other groups of employed or federally authorized counsel. These lawyers may establish their offices in states adopting the new model rule but in which they are not admitted, and without sitting for the bar or filing for an admission by waiver, as long as their practice is limited to the work authorized by the rule (i.e., for their employer only). These lawyers still may not litigate in courts before which they are not admitted. The rationale for this authorization is that employed counsel have sophisticated clients and do not hold themselves out for retention to the public, and thus pose no threat to the public or the well-being of the bar. The temporary practice authorizations are open to lawyers who are in good standing in every state in which they are admitted and working temporarily in another state in any of the following ways: (1) in affiliation with a local counsel; (2) on prelitigation (or out of court matters related to litigation) in cases for which they are or expect to be admitted to appear; (3) on ADR matters or other cases in which the appearance does not require pro hac vice admission; and (4) on matters that arise out of or are reasonably related to the lawyer’s practice in a state in which the lawyer is admitted to practice. Again, these are only summaries of the new authorizations, and none of these rules are effective until the states adopt them. • Reciprocal disciplinary and enforcement procedures are fine-tuned to handle potential problems that could arise through these temporary and permanent practice incursions. New provisions in Model Rule of Professional Conduct 8.5 and Rule 22 of the Model Rules of Lawyer Disciplinary Enforcement authorize a state to discipline any lawyer engaged in practice in that state, even if the lawyer is not admitted in the state. • The proposal also established a uniform model admission on motion rule so that lawyers who practice for a certain period of time in a jurisdiction in which they are admitted, and have no blemishes on their record, may move for admission on motion in a state where they wish to move to establish a permanent practice. This rule recognizes that practice experience and success representing clients are far better indicators than a bar exam of a veteran lawyer’s competence to join a new bar. A number of states already honor reciprocal waiver pacts with states that afford their lawyers the same privileges (a trend increasingly prevalent among big border practice states); this provision hopefully will make the reciprocity practice the rule in every state. (Not surprisingly, many of the states with the largest lawyer populations do not currently participate in reciprocity arrangements, so lawyers moving to Illinois, California, New York, and so on otherwise have to sit for the bar exam in order to establish an office or a continuous presence.) • The ABA House also affirmed support for the state adoption of a model rule that would authorize lawyers licensed in qualifying foreign jurisdictions to advise U.S. clients about the laws of that jurisdiction. A related model rule, if adopted, would authorize foreign lawyers to temporarily practice in a U.S. state as their clients’ matters demand, generally mirroring the same situations in which such temporary practices are authorized for U.S. lawyers under new Model Rule 5.5. Both provisions are recognitions of existing practice and client wishes, and may help U.S. lawyers to gain similar reciprocity in countries where client matters demand their attention. THE PRACTICAL IMPACT If the new rules or similar reforms pass in your state, and if you are working solely for your client or its affiliates (and not representing members of management on personal matters or any other unrelated third parties), you do not need to be locally admitted to the bar in a state where your client wants you to work. You will be covered by the temporary practice rules if you travel to any other state to conduct an investigation, a negotiation, a deposition, etc. You will not be allowed, however, to go to court in any state in which you are not admitted unless you gain admission to that court pro hac vice. Remember, while each state has its own pro hac vice rules and varying procedures and standards for admission, new model pro hac rules are a part of the MJP Commission’s package, so hopefully, your admission locally will be more predictable and fair. You will still not likely be well-served if you are a full-time litigator who wishes to regularly represent your client in court in a state in which you are not admitted. Authorization to practice under the new MJP model rules is not the same as admission to that state’s bar — it’s more like an exception to the state’s regular admission requirements. In-house litigators thus get snagged in a Catch-22. Most corporate counsel who move to another jurisdiction at the request of their employer clients should not have to worry about the new model rules for local admission of experienced counsel, since the permanent practice MJP provisions of Rule 5.5 should cover their practices. Those litigators who would try to take advantage of the new model rules on admission by motion, however, to allow them into court in a state to which they’ve moved and in which they are not regularly admitted, will find that the new admission on motion rules do not extend to in-house counsel. In-house litigators who can’t use pro hac vice admissions in states in which they are not admitted but wish to appear are simply not helped by either the proposed admission on motion or Rule 5.5 reforms. It’s a sorry hole that we couldn’t get filled. Nonetheless, clients will have plenty of cause to celebrate these reforms since they will provide options and economies for established and new relationships with firms and individual lawyers without concern that their presence (or lack of presence) in any particular locality will be held against them. In addition, the adoption of these rules will allow smaller firms and boutique practices to compete fully with larger firms, which formerly had the advantage of claiming that only they could handle “national” businesses because they had lawyers admitted in every jurisdiction. It will also provide a welcome relief from the sometimes unnecessary expense of local counsel. Of course, there will still be matters in which local counsel are appropriate, necessary, and highly useful, but that decision will be one for the client to make and for legal exigency to demand — not one mandated by the bars. GET INVOLVED IN YOUR STATE The American Corporate Counsel Associationhas worked tirelessly for years to help create this platform for reforms. While the new model rules may not be everything we wanted, they are a very large step toward reform at the state bar level. We will continue to work to persuade states considering reforms to adopt the simpler Common Sense Proposal ( www.acca.com/ commonsenseproposal.html), which would allow corporate counsel similar permanent and temporary practice reforms, but would also allow in-house counsel to litigate in a state in which they are authorized for all other full-time privileges and responsibilities of the bar. Most every state already has or will soon establish a commission or task force to examine the reforms proposed by these new model rules, along with other proposed changes. Call your state bar and ask if they have such a commission, and whether it has corporate counsel representatives. If not, volunteer to be on the commission or let ACCA know that there’s a need to help identify appropriate candidates to serve. ACCA’s extensive chapter network around the country is gearing up to serve local communities that will be pushing for their states to adopt these changes in the coming year. The corporate practice bar has a special obligation to ensure that the reform movement does not lose momentum and fizzle before the states adopt changes. Our clients will benefit greatly from these reforms. Susan Hackett is senior vice president and general counsel of the American Corporate Counsel Association. She can be reached at [email protected].

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