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Out-of-state attorneys who want to practice law in California under a reciprocity agreement that spares them from sitting for the Bar may be no more than a year away from new state rules. In the wake of the state legislature’s first effort to repeal the 1927 law that makes it illegal for out-of-state attorneys to practice here without first passing the Bar, Chief Justice Ron George has agreed to set up a task force before the end of the year to take “a fresh look” at reciprocity. Earlier this year, longtime Bar critic Sen. Bill Morrow, an Oceanside Republican, forged an unlikely alliance with State Bar president Andrew Guilford when he introduced SB 1782. It called for the admission to the State Bar of any out-of-state attorney who had practiced for at least three years in another state. But then Beth Jay, George’s principal attorney, weighed in with objections that only the California Supreme Court held jurisdiction in the matter. Morrow agreed to amend his bill into a call for a three-year study and turn the matter over to George. All too often conversion to a study means the issue is dead for the foreseeable future. However, George and everyone else involved vow that is not the case in this instance. Morrow says such caution is justified. “Nine times out of 10, what’s been studied has already been studied to death — but not in this case,” he says. “I can’t tell you the requirements to be a member of the Bar in Louisiana or Hawaii, so we might not want full reciprocity.” He is confident, however, that George fully supports his bill “and would not make me go through the motions.” The California Supreme Court was widely criticized two years ago for its decision in Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119, reaffirming that out-of-state attorneys must be members of the California Bar to practice within the state. That decision kick-started a renewed push to allow multi-jurisdictional practices in California. Despite that 1998 decision, George cautions that the court “is not seeking necessarily to implement Birbrower” in its upcoming examination of reciprocity. Nor is forging new rules to govern some form of reciprocity likely to take three years, says Palmer Madden, the Alamo, Calif., attorney appointed by Guilford to chair the Bar’s own Multijurisdictional Task Force. “I expect [reciprocity] to occur next year,” he predicts. “The legislature and the Bar and the supreme court are all on the same page.” While George says he will rely on the judgment of the chair and members of the task force he plans to set up — “with cross-reference to the Bar’s group” — he cautions that the issue is so complex that he will not predict either the outcome or the length of time new rules might take. Certainly, support for nationwide reciprocity transcending state borders has burgeoned in the last several years as the Internet and other technologies have rendered the practice of law increasingly mobile. Lack of reciprocity particularly impacts in-house counsel, practitioners in the federal courts, and specialists whose expertise in intellectual property law or high-tech commerce crosses state and national boundaries. The State Bar’s unofficial estimate of the percentage of corporate in-house counsel practicing in California but not members runs as high as 20 percent. Multi-jurisdictional practice is already the norm in over half the states, but at least 15, many of them in the Sunbelt, have resisted reciprocity, some purely out of a protectionist fear of increased competition. In addition, California wants to protect its reputation as having the toughest Bar exam in the nation and hence the highest standards of consumer protection. That concern surfaced immediately in SB 1782′s first committee hearing last May. With his usual directness, Senate President Pro Tem John Burton confronted Morrow. “It’s not fair for kids who bust their chops taking the bar one, two times versus those who got in easy elsewhere,” he said. “That’s the main problem with the bill.” Morrow countered with several witnesses who illustrated the problems with the present system. Criminal defense specialist Robert Bloom, a lawyer who passed the New York Bar 35 years ago, feared that his death row client, Larry Roberts, would go unrepresented after Bloom tried and failed twice to be admitted to appeal the case in state courts. Bloom has lived in Oakland, Calif., since 1985 and that residency automatically barred his pro hac vice petition, a vehicle granting temporary Bar status under certain circumstances. (Three weeks ago, however, the court granted Bloom’s third petition, he reports.) Former federal prosecutor Jeffrey Russell of San Jose, Calif., similarly reported that after a 17-year career, a good portion of it trying cases in California’s federal courts, he could not practice law here since his retirement in 1995. But it’s Morrow’s friend, Joseph Giannini, who claims to be “the moving force behind the bill.” A Los Angeles-based constitutional lawyer admitted to the federal but not the State Bar, he is representing a patent attorney suing Ronald George over the constitutionality of the pro hac vice rule in Paciulan v. George (9th Cir.Ct.App., No.99-15687), a case now on appeal after rejection in district court. Giannini argues that lawyers learn by practicing law, and that just as doctors and other board-certified professionals are granted reciprocity to practice in other states, so too should lawyers. “[Reciprocity] would give attorneys the opportunity to move from one state to another without having to reinvent the wheel,” he says. Bar president Guilford, long a proponent of reciprocity, says new rules might have been in place years ago but for the deep-freeze of the dues crisis. He cites the recommendations of the State Bar’s 1995 Futures Commission, which Morrow partly incorporated into SB 1782. “We were close to a resolution on reciprocity when the dues crisis hit,” he recalls. Morrow’s original bill called only for comity, he points out, or the one-way admission of out-of-staters. But the Futures Commission recommended reciprocity, and that was also the insistence of legislators during the May hearing. One large issue to be worked out is the fate of lawyers graduating from schools not accredited by the American Bar Association. They can’t even sit for the Bar in other states, but in California, one-fourth to one-third of those taking the exam for the first time come from non-ABA schools. It’s assumed, says Guilford, that no other state would grant them reciprocity, thus branding non-ABA lawyers second-class citizens, but he insists, “if they pass the toughest Bar exam in the country, that’s not a foregone conclusion.” Reciprocity might also be conditioned on minimum scores on the Multistate Bar Exam, Guilford suggests, as well as years in practice. He has even proposed linking it to the performance of supervised pro bono hours in California. Or the state might begin with “baby steps,” such as setting up regional reciprocity with those western states known for their own rigorous admission standards. Another such “baby step” might be reciprocity initially for in-house counsel under the argument that such attorneys serve only their corporate bosses so that general client protection is less of an issue. Guilford also points out that under the Futures Commission’s recommendations, an attorney could not have taken and failed the Bar here, then gone elsewhere to practice for three years before applying for reciprocity. But he is uncertain that such candidates deserve to be permanently barred here no matter what they may achieve elsewhere. Meanwhile, SB 1782, which has passed unanimously through the Legislature thus far, is expected to arrive for its final vote in the Assembly within the next 10 days. Then, “because government does tend to take too much time,” says Morrow, “I’d like to keep the fire lit.”

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