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Just when firms around the country are itching to expand across borders, a New Jersey Supreme Court committee is reminding out-of-state attorneys they could get in trouble if they work on New Jersey estates. Opinion 38, issued June 25 by the Committee on the Unauthorized Practice of Law, says only two narrow exceptions permit the hiring of a non-New Jersey lawyer for estate work. First, the New Jersey and out-of-state issues in the estate must be so tangled and interwoven as to make use of New Jersey counsel impractical and inefficient. Second, there must be out-of-state issues and a long-standing lawyer-client relationship that is so close that using a New Jersey firm would be economically inefficient. “In the absence of circumstances such as those outlined above, the provision of legal services to a New Jersey estate by an out-of-state attorney constitutes the unauthorized practice of law,” the opinion concluded. In addition, the existence of federal tax issues does not constitute license for an out-of-state firm to do the work, according to the committee, chaired by Raymond Londa of Elizabeth, N.J.’s Londa & Londa. The committee said the opinion was prompted by a New Jersey lawyer’s query, but in keeping with tradition the panel did not identify the inquirer. Under the rules, anyone who does not like a committee opinion can ask the state supreme court for review. Given the high bar the opinion sets for out-of-state lawyers, it’s not surprising that New Jersey trusts and estates lawyers and leaders of the State Bar Association like it. “This is great,” says Allen Etish, a partner in Cherry Hill, N.J.’s Kenney & Kearney who chairs the State Bar’s Committee on Multijurisdictional Practice. It’s not clear, however, whether the opinion’s inherently protectionist interpretation would survive if the state supreme court adopts a multijurisdictional practice proposal bubbling up in the American Bar Association. The chief MJP proposal, to be considered in August at the annual meeting of the ABA’s House of Delegates, would allow transactional lawyers to work temporarily in states where they are not admitted to allow long-standing clients to obtain special expertise. The state supreme court, which is the final arbiter of practice rules in New Jersey, has appointed two committees that are examining the implications of the loosening of frontier restrictions. Wayne Positan, chairman of the ABA Commission on MJP, has a special interest in the relationship between multijurisdictional practice and New Jersey because he is a partner in Roseland, N.J.’s Lum, Danzis, Drasco, Positan & Kleinberg and is secretary of the State Bar. He says Opinion 38 is compatible with the MJP proposal because the proposal limits out-of-state lawyers to work arising from work related to the lawyers’ practice in a home state. The opinion and the MJP proposal require affirmative answers to, “Is it an existing client, is there a prior relationship, is it based on your particular expertise,” Positan says. “I think people tend to misread our report to the extent they think it’s automatic and you can do whatever you want to,” he says. “That’s not what we said.” Indeed, he says the principles in one of the state supreme court cases relied on in Opinion 38, In the Matter of The Application of Steven Jackman B. Jackman For Admission To The Bar, 165 N.J. 580 (2000), were incorporated in the MJP proposal. Jackman says lawyers who do work in New Jersey need to be admitted unless they are acting under carefully delineated exceptions. “I don’t think Opinion 38 is inconsistent with our report,” Positan concludes. Etish doesn’t agree. “It’s much more provincial than any ramblings of the ABA,” Etish says of Opinion 38. Under the MJP proposal, the goal is to allow clients to obtain special expertise from a lawyer with whom they have an existing relationship. The exceptions in Opinion 38, codified in two decisions, seem narrower, he says. Appel v. Reiner, 43 N.J. 313 (1964) was a will contest venued in New York that required resolution of debt and credit problems in New Jersey — peculiar circumstances making the hiring of a New Jersey lawyer impractical. In the other exceptional case, In the Matter of the Estate of Waring, 47 N.J. 367 (1966), the decedent was a New Jersey widow whose husband had corporate interests in New York and a 50-year relationship with a New York firm. What’s more, a New Jersey practitioner was called in to help on New Jersey matters and responsibility was divided between the two firms. “If the ABA proposal was adopted, I think this opinion would have to change,” Etish says. Sandra Sherman, a trusts and estates partner at Morristown, N.J.’s Riker, Danzig, Scherer, Hyland & Perretti, says the opinion reflects New Jersey lawyers’ perceptions of what they are permitted to do in other states. “With the change in the lay of the land in multijurisdictional practice in the long run, it may look protectionist, but it’s pretty consistent with the view I would expect New Jersey to take at this particular juncture,” Sherman says. Glenn Henkel, vice chairman of the State Bar’s Real Property, Probate and Trust Law Section, says the opinion fails to make clear what constitutes the practice of law in the handling of an estate. That’s a particular problem because most estate matters in New Jersey don’t require the employment of a lawyer, says Henkel, a partner in Haddonfield, N.J.’s Kulzer & DiPadova. In addition, In re Application of the New Jersey Soc’y of CPAs, 102 N.J. 231 (1986), says inheritance tax returns can be prepared by accountants. If an accountant can do such work, why couldn’t an out-of-state lawyer do it, he suggests. Indeed, Henkel says he has prepared such returns for estate taxes in other states. He says: “If I’m a Pennsylvania accountant and I tell someone what New Jersey tax law is and I ask if I’m practicing law in New Jersey, the answer is probably going to be no. But if I’m a Pennsylvania lawyer and I tell someone what the tax laws are, I may be. “Why would you say that a Pennsylvania accountant is more qualified than a Pennsylvania lawyer?”

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