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An American Bar Association panel on multijurisdictional practice finished a final compromise proposal May 15, but the New Jersey State Bar’s guru on the subject says the plan to ease cross-border lawyering is flawed and MJP is far from being a done deal in New Jersey. The centerpiece of the proposal by the ABA’s Commission on Multijurisdictional Practice is a rewrite of Model Rule of Professional Conduct 5.5. The revision would prevent prosecutions for the unauthorized practice of law against attorneys serving temporarily on matters that, as the new language says, “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction to which the lawyer is admitted to practice.” The American Corporate Counsel Association is calling the proposal “a giant step” forward. Allen Etish, a partner at Cherry Hill, N.J.’s Kenney & Kearney who heads the State Bar’s MJP committee, says it’s better than a preliminary proposal last November. But Etish says the most troubling parts remain. The proposal, for example, lacks specificity about what is permissible, opening too wide a door to MJP, he suggests. It’s not clear how the proposal would work if some states don’t go along, he adds. Worst of all, the final proposal contains no definition of what constitutes “temporary” practice, he says. “That’s the word that I hate,” he says. “You define temporary one way, I define it a second way, and everybody else has got a third or fifth or 15th different way. That word survives in the final recommendation and it troubles me.” The proposal now goes to the ABA’s House of Delegates for consideration at its meeting in Washington in August. Passage there would put pressure on states to adopt the new code because most jurisdictions’ version of RPC 5.5, including New Jersey’s, is identical to the model ABA rule. In anticipation, two New Jersey Supreme Court committees studying aspects of MJP are expected to make recommendations within a year. Pressure for MJP is coming from in-house counsel, transactional lawyers and national firms that believe changes in the old state-centered ways of lawyering are necessary given the globalization of modern business. But resistance is strong among attorneys who fear an inability to compete with loosely regulated, aggressive interlopers or who worry that MJP is the first step toward nationalization of legal services. Interest in New Jersey is particularly high for special reasons. First, New Jersey lawyers have always been wary about encroachment by firms in New York and Philadelphia. Second, the chairman of the ABA panel advocating the rules changes, Wayne Positan, is not only from New Jersey, he’s part of the state’s legal establishment. A partner with Roseland, N.J.’s Lum, Danzis, Drasco, Positan & Kleinberg, he will be sworn in today as the State Bar’s secretary, a position that puts him on the road to the presidency of the organization in 2008. Positan’s advocacy of MJP doesn’t guarantee its acceptance in New Jersey, but it does guarantee a respectful hearing by a State Bar that likes Positan enough to make him its future president. During the Bar’s annual meeting in Atlantic City, N.J., he and Etish will be among the speakers at an MJP seminar. The issue is due to come up at a hearing this week before the New Jersey Supreme Court’s Commission on the Rules of Professional Conduct. NO RADICAL SURGERY In an interview last week, Positan said the committee rewrote the November draft to soften provisions disliked by various interests represented by the 70 individuals and associations that commented over the past five months. None of the surgery was radical, however, and ACCA President Frederick Krebs says, “We like it.” An ACCA news release calls the proposal “a giant step toward resolving a longstanding, controversial issue for attorneys everywhere” and said, “The ABA Commission’s final report offers comprehensive, common sense guidelines for attorneys who practice across state lines.” In the proposed notes to model rule 5.5, the commission identified what it called “evidence” that a lawyer was engaged in services that arise out of or are reasonably related to the lawyer’s work in his or her home state. It might be work for an existing client, work closely connected with work in the lawyer’s home state, or work involving federal, nationally uniform, foreign or international law for which the lawyer has recognized experience. Positan says one of the chief debates over the preliminary draft centered on whether the rule should identify particular fields of law — so-called safe harbors — that would be open to MJP. But ACCA and its allies felt such language would be too confining. On the other hand, bar organizations in New Jersey and other states argued for identification of specific areas. “They wanted limiting language,” Positan says. “We tried to react to the feelings that we were being descriptive on one side and too broad on the other side,” Positan says. In the end, the commission eschewed overt reference to definitions. Etish says the new report is better because it is not as blanket an invitation to MJP as the November draft and it is not “a green card” that gives lawyers the right to work wherever they want. But he says the lack of definition of temporary “really scares me.” Without such definitions, for example, a lawyer who comes to New Jersey to meet real estate clients, but only on Fridays, could claim temporary status, he says. The lack of a definition also hurts attorneys who could legitimately claim temporary status, he says. Any lawyer concerned about being hit with an unauthorized-practice-of-law complaint would “like to know where I can hold my head up high and where I have to duck.” Etish also would like to see a mechanism to ensure either widespread approval or no approval for any MJP proposal. If a mere majority of the states go along, it could leave some states with borders closed to MJP, creating a troubling patchwork. Either way, states like Florida and Arizona that have large groups of wintertime residents from other states will never adopt it, he says. Positan, meanwhile, says that if the report isn’t perfect, at least it is a start that does not alter the commitment to preserving local regulation of the bar. “I think we can do all that and still modernize the rules of our practice to reflect the needs of the public we serve,” he says. “We have many clients who have needs that go beyond historical lines that were drawn 225 years ago.”

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