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It’s a small step, but a big one in historic terms. On Tuesday, the California Supreme Court released a task force report recommending that the state ease up on the rules regulating the practice of law to let some out-of-state lawyers ply their trade inside the state without passing the California Bar. While stopping far short of proposing wide-open borders, the report acknowledges the advent of technological change, the Internet and the tremendous growth of interstate and multinational commerce. “Today’s reality,” states the 42-page report by the supreme court’s Advisory Task Force on Multijurisdictional Practice, “is that the needs of many clients do not stop at state lines, and neither does the legal practice of the attorneys who represent them.” The proposals do not suggest reciprocity, which would let out-of-state attorneys practice in California only if their home state allowed California lawyers the same right, or comity, which would allow out-of-state lawyers to practice in California even if their home state didn’t reciprocate. Rather, the task force — legislated into being by state Sen. Bill Morrow, R-Carlsbad, and pulled together by California Supreme Court Chief Justice Ronald George one year ago — suggests limited situations in which out-of-state lawyers could practice in California. Specifically, the report, written by University of San Francisco Law School professor Joshua Paul Davis, recommends registration rights for in-house counsel providing out-of-court legal services for a single, full-time employer and for public interest lawyers offering services to indigent clients on an interim basis before taking the state’s bar exam. Registration would let those lawyers practice in California on an ongoing basis if they were in good standing in another state. The report also proposes modifying the definition of “unauthorized practice of law” to provide “safe harbors” for transactional and other nonlitigation attorneys who offer services on a temporary and occasional basis, and for litigators planning to file suit in California or as part of pending litigation in another jurisdiction. “These changes would provide useful steps to accommodate current needs, while continuing to ensure the public’s interests are protected,” the report said. Task force chairman Raymond Marshall on Tuesday called the report “a major step forward” because it acknowledges “that we do want to make changes to the status quo” by making “very specific targeted recommendations” that protect California consumers and provide out-of-state lawyers better access to the state’s legal market. “Consider also that California has the largest legal market in the country,” said Marshall, a past president of the State Bar and partner at San Francisco-based McCutchen, Doyle, Brown & Enersen. “As California goes, I think, other states will follow. Our willingness to recognize the changing law practice [in regard to] technology and the ability of commerce is important to the profession.” California made it a misdemeanor in 1927 for out-of-state lawyers to practice in the state without passing the state’s bar exam. The state supreme court reinforced that prohibition in 1998 in Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119, by refusing to enforce an out-of-state lawyer’s fee agreement. The Legislature that same year carved out an exception for out-of-state lawyers involved in arbitration proceedings. There have been other exceptions for appearances by out-of-state counsel, such as by consent of a trial judge or by pro hac vice, which means “for this occasion” in select cases and under strict guidelines. Tuesday’s recommendations are an important sign that times are changing and that more proposals could come about in the future. In the meantime, the supreme court plans to review the task force recommendations and take action on them at an upcoming administrative conference. The report’s authors also suggest that the recommendations be forwarded to the state Legislature and, if adopted into law, be reviewed in five years — “to determine how they perform in the real world.” The 18-member committee comprised several high-powered lawyers, judges, judicial staffers, legislative representatives, State Bar officials and laypersons.

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