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Foreign and out-of-state lawyers who aren’t licensed to practice in Pennsylvania will be permitted to provide legal services in the state on a temporary basis without breaking ethics rules, the Pennsylvania Supreme Court says.



Under new rule amendments the justices adopted Friday, such lawyers will generally be under the disciplinary scrutiny of the court if they behave unethically while practicing in the state.



The amendments to the Pennsylvania Rules of Disciplinary Enforcement and the Rules of Professional Conduct become effective when they’re published in the Pennsylvania Bulletin, the state’s official weekly notice of information and rulemaking.



Susan Hackett, general counsel for the national Association of Corporate Counsel, said the MJP rules may be the first promulgated by a state high court that cover the practices of foreign attorneys.



“That’s a big deal,” said Hackett, whose organization in Washington is active in the nationwide push for rules authorizing the multijurisdictional practice of law. “It’s very visionary and forward thinking of the court.”The state Disciplinary Board and Board of Law Examiners recently proposed amendments to their governing rules that would allow attorneys licensed to practice in foreign countries to perform limited legal services in Pennsylvania as “foreign legal consultants,” providing advice on the law of the countries where they’re licensed.



Hackett said the MJP rule amendments could make the need for the foreign legal consultant rule moot.



At least six other state high courts, including those of Delaware and New Jersey, already allow for the cross-border practice of law, according to the Association of Corporate Counsel. Bar associations and court-appointed commissions in at least 12 other states, including New York, have submitted recommendations to their courts and await action on the issue.



In November, the policymaking body of the 20,000-member Pennsylvania Bar Association adopted a resolution endorsing the American Bar Association’s model professional conduct rules for MJP.



The idea, said Daniel Huyett of Stevens & Lee in Reading, is to encourage all states to allow for MJP, preferably by adopting rules modeled after the ABA’s model.



“Pennsylvania is showing some leadership in adopting a rule like this,” said Huyett, who co-chaired the PBA-chartered MJP task force. The rule amendments proposed by the state Disciplinary Board in November were closely modeled after the ABA’s model, Elaine Bixler, secretary and executive director of the board, said at the time. The court adopted the proposed amendments with minor changes. Under the current ethics rules, attorneys who come into Pennsylvania every day and provide legal services are technically engaged in the unauthorized practice of law, Bixler said. The movement behind MJP has been hailed as a necessity of modern legal practice with lawyers providing advice by telephone, letters, e-mail and fax to clients with business in other states and countries.



“It’s a practical reality,” Hackett said. “Lawyers are stationed all over the world and clients are stationed all over the world.” The court did not set a bright-line test as to what constitutes practicing on a temporary basis, but its explanatory comments for the rule amendments do note that lawyers not admitted to practice in Pennsylvania would be violating professional conduct guidelines if an individual “establishes an office or other systemic and continuous presence in this jurisdiction for the practice of law. Presence may be systemic and continuous even if the lawyer is not physically here.”



The court also said that “such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” Multijurisdictional practice caught lawyers’ attention when the California Supreme Court decided a case in 1998 called Birbrower Montalbano Condon & Frank PC v. the Superior Court of Santa Clara County.In Birbrower, attorneys from a New York law firm were unable to enforce a fee agreement with clients whom they advised in person in California, over the phone from New York, and in e-mail messages and faxes, regarding an arbitration dispute. After proceedings concluded, the clients would not pay the Birbrower firm its fees and sued them for malpractice. The California Supreme Court concluded that the attorneys had engaged in the unauthorized practice of law.



“That was a wakeup call,” said Cozen O’Connor attorney Thomas G. Wilkinson, who co-chairs the Pennsylvania Bar Association’s legal ethics and professional responsibility committee.



MJP is generally thought to clear the way for transactional lawyers and lawyers who frequent arbitration proceedings — attorneys who practice in other states but don’t need to be admitted pro hac vice because they don’t go to court.



Not everyone thinks it’s a good development, however. Some attorneys fear losing the “hometown advantage,” as Hackett put it. They worry that out-of-state lawyers would lure business away from local attorneys. That was the concern of Connecticut’s real estate bar in January when it derailed that state’s effort to adopt an MJP provision, Hackett said.



“One group of real estate lawyers were worried that when people moved to Connecticut, they would bring their lawyers with them,” Hackett explained.



William F. Hoffmeyer, who co-chairs the PBA’s unauthorized practice of law committee, said that that is a real concern, particularly for small-firm lawyers and those practicing on their own.



“It’s not just about lawyers losing business — lawyers have always worried about losing business,” said Hoffmeyer, who practices in York at Hoffmeyer & Semmelman.



It’s that consumers may not be aware of the price difference between what big-firm lawyers and small-firm lawyers charge, Hoffmeyer said.



“It’s what’s better for the consuming public,” he said.



In a letter that Hoffmeyer’s committee sent to Huyett’s MJP task force in November, Hoffmeyer noted that the “vast majority” of Pennsylvania attorneys are not members of large law firms and do not “flit around the country on a regular basis.”



His committee eventually withdrew its objections to the resolution before the PBA’s Board of Governors.



The Supreme Court also recently adopted a rule amendment creating a limited-purpose law license for in-house counsel practicing in the state for a corporation or non-governmental business entity.



The licenses let out-of-state attorneys provide legal advice to employees of the businesses they are licensed to work for, among other limited legal activities such as pro bono work.

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