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The American Bar Association has adopted a model rule that would allow veteran lawyers to apply for permanent admission in any state without taking that state’s bar exam, an opportunity currently unavailable in New Jersey. The ABA House of Delegates considered the rule on Aug. 12 after a spirited debate that included denunciations of the proposal by two New Jersey delegates, Saul Wolfe and Michael Prigoff. The measure passed anyway, 157-150. The rule was part of a package of multijurisdictional-practice resolutions the ABA adopted to help lawyers engage in multistate representations, serve clients of the growing national legal economy and avoid being disciplined for the unauthorized practice of law. Most of the rule changes make cross-border temporary practice easier, and those rules have been widely debated for years before the ABA’s Commission on Multijurisdictional Practice. Wayne Positan, the New Jersey lawyer who chaired the commission, says permanent admission by motion complements the package. Once a lawyer represents out-of-state clients temporarily on certain matters within a field of expertise, the lawyer may want to regularize the representation by gaining admission. It does not make sense for the lawyer to take a bar exam, “like a kid out of law school,” and answer questions outside the field of expertise, says Positan, of Roseland’s Lum, Danzis, Drasco, Positan & Kleinberg. Admission by motion is permitted in about 15 states and New Jersey is not one of them, given the longstanding concern about encroachments from large firms in New York and Philadelphia. Until the late 1980s, lawyers in New Jersey could waive into the New York bar, but that state stopped admitting lawyers on motion from states, like New Jersey, that do not allow waivers themselves. Under the new Model Rule on Admission by Motion, no bar exam would be required of lawyers who hold a degree from one of the 190 or so ABA-accredited law schools and have been engaged in the active practice of law in a state for five of the seven preceding years. States that permit admission by motion “recognize the reality that lawyers who have been admitted to another state’s bar and have practiced actively for a significant period of time without disciplinary sanction are qualified to establish a law practice in the new state,” the MJP Commission said in a report. Requiring passage of a bar exam, the report said, “serves as an unnecessary obstacle.” The New Jersey State Bar Association has been wary of multijurisdictional practice; however, the two New Jersey delegates who spoke at the ABA meeting said they liked the MJP package, except for the admission by motion recommendation. Prigoff, of Englewood’s Lebson, Prigoff & Baker, told the ABA’s House of Delegates he was dismayed that the proposal did not require applicants to have passed the multistate bar exam. He said the rule undermines state regulation of lawyers. While the rule would not necessarily lead to lawyers being admitted all over the country, he said, they would probably seek admission in neighboring states, “thereby reducing particular states’ standards to the lowest common denominator.” Wolfe, a former state Bar president who is in Livingston’s Skoloff & Wolfe, had more dire predictions. “It becomes a national admission ticket,” he told the ABA. “It’s a bad idea. It takes away your state’s power to regulate lawyers.” He also warned that passage in the ABA would add to the persuasiveness of the notion when states’ lawyer regulators consider it. “Don’t fall for the argument it’s just a template and the states can do whatever they want,” he said. The enactment of ABA model rules of practice and professional conduct has traditionally carried great weight with state regulators. With a couple of exceptions — New Jersey’s Rules of Professional Conduct, for example — are identical to the ABA’s model rules. Two state supreme court committees are expected to advise the justices before the end of the year on whether to adopt the MJP proposals. The panels are the Commission on the Rules of Professional Conduct, chaired by retired state Supreme Court Justice Stewart Pollock, and the Ad Hoc Committee on Bar Admissions, chaired by Appellate Division Judge John Wallace Jr. The national Conference of Chief Justices has endorsed the changes, but New Jersey Chief Justice Deborah Poritz has not taken a position on MJP. Positan said in an interview last week that admission by motion does not mean state regulators abdicate their control of the admission process. He notes that the model rule requires passage of a multistate professional responsibility exam, proof of good standing in all jurisdictions where admitted and demonstration of character and fitness. “Saul Wolfe said this is tantamount to a national license,” Positan says. “That’s an argument that is not based on fact.” He adds that “states are free to impose whatever restrictions they choose,” and that could include the bona fide office rule in effect in New Jersey. Just like lawyers admitted by the traditional route, those waived in would have trust accounts, pay into client security funds, perhaps perform mandatory pro bono and take continuing legal education courses, as New York requires, he says. Positan uses his own practice to illustrate why admission on motion is good for lawyers in New Jersey. His concentration is labor and employment law, and if his clients open an operation in another state he wants to represent them. “Clients don’t want to have 10 labor lawyers representing them in 10 different states,” he says. “If I have to tell my clients I can’t do this and you have to hire separate counsel, they’ll go hire one of the big boys in New York.” Positan suggests that if lawyers fear the multijurisdictional-practice rules will increase the influx of out-of-state firms, their worries are probably too late. “If you’re worried about them eating your lunch, they already ate it,” he says. “You can’t hide under a layer of exclusion and think that over a period of time you’re going to prevail in competition. They are here en masse. What can you do to stop them? They are already here.” The key for medium-sized firms, he suggests, is to represent homegrown companies and closely held corporations and take advantage of MJP rules to represent them in other states.

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