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Let’s take a test. Call it office aerobics, if you like. 1. Raise your hand if you’ve ever met with a client outside of your licensing jurisdiction on a client matter. 2. Raise your hand if you’ve ever returned client phone calls from an airport lounge outside of your state of admission. 3. Raise your hand if you regularly work from home, which is in a jurisdiction that is not your licensed jurisdiction (as in living in Maryland, but working and licensed in Washington, D.C.). 4. Raise your hand if you’ve ever counseled a client on a matter that involved the law of jurisdictions in which you are not licensed. 5. Raise your hand if you’ve ever taken depositions or conducted discovery or other pretrial work in a jurisdiction outside of the ones in which you are licensed (or before your appearance pro hac vice could be considered by the local court). How many people do you think are out there who didn’t raise a hand at least once? Probably some law professors, some government-employed lawyers, maybe a few solos, and some state court-based litigators. The vast majority of you did raise your hands, and (like it or not) you have officially acknowledged that you are among the vast majority of U.S. lawyers who have what is termed a multijurisdictional practice (MJP) — and thus may be committing violations of the licensing rules of the state(s) in which they are admitted and the state(s) in which they aren’t. Don’t worry, it’s unlikely that anyone walking by saw you raise your hand or knows why you did it. But now that you know about your transgressions, what do you intend to do about them? What corporate counsel have done is to mandate their association, the American Corporate Counsel Association (ACCA), to take action to reform the rules to accommodate 21st-century legal practice. A number of American Bar Association sections, state bar task forces and other groups interested in professional responsibility issues are also engaged in the issue, and some are offering policy prescriptions to address the subject. The ABA has created a presidential commission on MJP that is also considering the issue, and is poised to announce its draft recommendations by early December. What are we talking about here? We’re talking about the current system of lawyer admission, which is regulated differently by each state for its own admitted lawyers, and which rules are not coordinated with other states’ rules except for a few pockets of limited reciprocity here and there. The rules of each state generally provide that only those licensed in that state may practice law there; all others must take the exam or come in by some other safe harbor (if available) if they wish to practice within the state, even on a temporary basis. (For more information on the states with limited exceptions to this policy, as well as the standards imposed by the other states and protectorates, see the Web sites listed as resources at the end of this article.) As more and more lawyers engage in national, if not international, practice, the issue of MJP becomes salient to a larger and larger segment of the bar. JUST PASSING THROUGH I think that most folks would agree that a lawyer should be admitted in a state if he wishes to move there permanently and establish a practice. The gray area surrounds two questions that are not as easy to answer: First, what about those who are simply “passing through” in a second state on a client matter and happen to touch ground for a short while, with no intention of making that state a permanent domicile? On a related note, how can that temporary practice be regulated by the host state if something in the representation goes wrong? Second, what about those who are experienced and wish to move to another state to establish a permanent domicile, but really don’t believe that being forced to take another bar exam is a terribly meaningful or necessary gauge of their competence to join the local bar? Indeed, these questions have spiraled into a very complicated and increasingly hot and heavy debate currently raging in a number of state bars and at the ABA’s Multijurisdictional Practice Commission. It’s been the primary policy object of my organization, the American Corporate Counsel Association, since our inception in 1982. You might ask, “If everybody does it all the time and no one’s really getting hurt, why have all these folks got their knickers in a knot over this?” Well, it is a knicker-knotting issue for corporate counsel for the following reasons. First, as a self-regulated profession, the fact that “everybody does it” is not an excuse for breaking the rules: We shouldn’t condone the daily violation of our professional obligations based on the “no harm, no foul” principle. That’s a slippery slope we must avoid as professionals. The solution is not to tell lawyers and clients to go back to the 18th century, but to modernize our rules. I’d suggest that most lawyers don’t focus on the ramifications of their multijurisdictional practice: They know what they’re competent to do and don’t think the rules prevent them from doing it. When educated on this question, they will likely support the rules’ revisions. Second, some people are complaining, and just because you haven’t personally heard the complaint yet in your practice doesn’t mean that you never will in the future. You may hear about it in different ways. Your clients may be totally satisfied with your services and never think about “turning you in” for practicing outside of your jurisdiction (usually because they don’t care where you’re admitted as long as you are the best expert and do the job well), but your opposing counsel may use your violation of the unauthorized practice of law rules against you to frustrate your client’s case. (Even though state bar counsel tell me that they have no appetite or budget for chasing after competent MJP practitioners, if a complaint is filed they can’t ignore a violation of the rules.) Further, a disgruntled client in the future might use your work outside of your state of admission as reason to deny payment of your fees; that’s what happened in the Birbrowercase in California, which started the current furor at the bar. Third, this issue highlights a growing problem with some of the rules that simply need revision because they were written for a different time and era of practice. We no longer practice in a carefully confined world demarcated by state boundary lines and peopled primarily with litigators who practice law only in state courts. We give advice by fax, phone, Internet, intranet, extranet, e-mail and by flying to the site of our clients’ meetings and facilities. We study the law of an area of specialized practice and can advise competently on that practice across state lines, sometimes because the law is federal, sometimes because the law is international, sometimes because a lawyer who specializes in franchise law knows more about that practice in 43 states than he does about divorce law in the state in which he is already admitted. More important, in an era in which clients have an increasing number of service options available to them, why would a lawyer who is competent to perform the work — say, advice on a companywide personnel manual for employees in 13 states — wish to tell a client with whom she has a long-standing relationship that the client must retain 13 lawyers to complete the project? The client would hire one of the employment consulting firms or units of the larger consulting houses and would be provided with the services requested on the spot. And those services would likely be performed well and to the client’s satisfaction. Fourth, those who oppose these changes on what are, at heart, concerns about protecting their local practice are going to have to yield. The number of lawyers whose practice is multijurisdictional and the number of clients whose legal needs stretch across state borders are too great for such self-serving reasons to prevail. In addition to the inappropriateness of using the rules to guarantee lawyers more business at the expense of clients, it’s important to note that folks who specialize in local practice will continue to have their current, and perhaps an expanded, client base. We are really only talking about codifying current practice, so there’s no reason to believe that small practices or local litigators will somehow suddenly be replaced by megafirms any more than is currently happening for other economic reasons. Most megafirms are not interested in doing largely local and smaller client/fee representations. Yet there is a significant faction in many state bars that argues that adopting MJP reform will peal the death knell for the small firm and local practitioner. This argument is a red herring since even the ABA’s Small and Solo Practitioners Section was one of the first on the pro-reform bandwagon, citing the benefit of MJP to its members’ practices, too. This debate isn’t about large vs. small firms, but about how we can best equip 21st-century lawyers with rules that ensure professionalism while accommodating client service needs. RESERVE DISCIPLINE FOR MALPRACTICE Fifth, current MJP practices create confusing and unenforceable disciplinary standards for bar counsel and lawyers. Each state’s rules are distinct and largely uncoordinated, and hundreds of thousands of lawyers are currently violating the rules. Meanwhile, bar counsel have no practical means (or even desire) for regulation of their actions, and state bars often do not accord each other good faith and credit for referrals of MJP violators. The National Organization of Bar Counsel has joined in the effort to encourage reform of the rules, in part because only reform of the rules will allow for consistent, effective and comprehensible enforcement and discipline. Bar counsel want to spend their time prosecuting malpracticing lawyers who are a danger to the public and the profession. They don’t wish to focus their limited resources on chasing competent antitrust or intellectual property or alternative dispute resolution lawyers who are working deals in 23 states and about whom no one is otherwise complaining. Discipline should be reserved for lawyers who do a bad job and act unprofessionally. Sixth, MJP may affect your ability to practice in the future. We practice in a highly mobile world these days, and it’s not unlikely that you will hold several positions in your legal career before your retirement. And it is increasingly likely that some of your future careers may be offered to you in another state. Under the current rules, you will be required to take the bar exam again and again. (Remember, only a minority of states currently offer reciprocity or waivers for experienced counsel relocating to their states, and then only if they come from a state that offers reciprocity in return.) MJP is the current state of our practice. It is our rules that are behind in their ability to regulate the profession as it serves today’s clients in today’s legal environment. I’d encourage readers to learn more about the rules of the states in which they are admitted and in which they practice as they cross state lines. And most important, I’d encourage you to consider the alternatives under discussion. It’s my view that relatively simple solutions do exist and that the folks engaged in this dialogue are making it more complicated than it needs to be. We should simply write a commonsense rule that authorizes MJP, with some clear and limited exceptions, rather than trying to torture the current rules that prohibit MJP by segmenting the bar into complicated and confusing lists of excepted groups and practices that will be allowed to cross state lines in certain situations. A number of outstanding resources are available to help you find more information on the current debate, the proposals for reform that are on the table, the positions of the state bars and the current rules for which you are responsible. For the ABA MJP Commission: http://www.abanet.org/ cpr/mjp-home.html. For ACCA’s MJP resources: http://www.acca.com/ advocacy/mjp. For current state bar standards: http://www.crossingthebar.com/. For “A Common Sense Proposal for Multijurisdictional Practice,” supported by a growing number of bar entities (including the ACCA, the National Organization of Bar Counsel, the Association of Professional Responsibility Lawyers and the ABA Law Practice Management Section): http://www.acca.com/advocacy/ mjp/commonsenseproposal.html. 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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