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The State Bar Association made a valiant if vain attempt April 23 to keep the national tide of cross-border lawyering from reaching New Jersey. State Bar lawyers urged the New Jersey Supreme Court to reject the suggestions of its own commissions that — following the lead of the American Bar Association and other states — favor multijurisdictional practice, admission on motion and an end to the bona fide office requirement. The opponents said that to permit out-of-state lawyers to practice in New Jersey without taking the state’s bar examination would “dumb down” standards, foster mediocrity and ultimately harm the public. Saul Wolfe, of Livingston, N.J.’s Skoloff & Wolfe, said New Jersey’s bar exam is tougher than in most states and is the “competency determination to protect the public.” The justices listened respectfully, but their interest peaked when Melvyn Bergstein, a proponent of the changes, addressed the court. Justice James Zazzali asked Bergstein, a New Jersey lawyer for 40 years, whether allowing admission by motion and the elimination of the bona fide office rule would “significantly change the practice of law in New Jersey.” “Absolutely not,” replied Bergstein, a partner with Walder, Hayden & Brogan of Roseland, N.J., “It’s a big storm over nothing.” In response to Wolfe’s statement that allowing out-of-state lawyers to practice in New Jersey reciprocally simply because they have practiced in their own state for five years is tantamount to “exalting five years of practice no matter how mediocre,” Bergstein reminded the justices that 26 states have reciprocal agreements and asked, “Are you prepared to say that these 26 states care less about their public?” Bergstein went on to label the State Bar’s “dumbing down” characterization of the key rule changes as a “fear tactic” designed to protect what he described as an anachronistic system. “These [out-of-state] lawyers went to the same law schools as we did. Many of us went to out-of-state law schools,” said Bergstein. And, he said, specific knowledge of New Jersey law, or the laws of any state, is overemphasized. “You go to the computer, or you have someone do it for you,” he said, adding, “What are we, Planet New Jersey?” FOLLOWING THE ABA The recommendations under consideration were issued last December by the Court’s Ad Hoc Committee on Bar Admissions, chaired by Appellate Division Judge John Wallace Jr., and the Commission on the Rules of Professional Conduct, chaired by former New Jersey Supreme Court Justice Stewart Pollock. Following their publication, the court invited public comments, with a view toward the April 23 hearing. The commissions were formed in 2001 after years of national debate on a range of subjects related to the regulation of lawyers and in anticipation of ABA action on multijurisdictional practice. Last May, the ABA’s committee on MJP recommended drastic changes in the model Rules of Professional Conduct, which carry great weight nationally and are now virtually identical to New Jersey’s RPCs. The ABA’s House of Delegates adopted the MJP rules changes last August in a 157-150 vote, with New Jersey Reps. Wolfe and Michael Prigoff voting no. For New Jersey, the changes would represent the biggest upheaval since the court opened up the attorney discipline system in 1995. The ABA report calls for states to permit admission by motion of lawyers from other states, with conditions. The lawyers must be admitted in another state; hold a degree from an ABA-accredited law school; been practicing five of the previous seven years; pass the local multistate exam; have no pending ethics entanglements; and have not failed the bar exam of the state they wish to practice in during the past five to seven years. Generally following the ABA report, the Wallace Commission recommended that out-of-state lawyers be permitted, on a temporary basis, to handle specific matters for existing clients in New Jersey that originated in their own state. The New Jersey portion of the lawyering must be reasonably related to the home-state matter. The out-of-state lawyer will not be limited to handling litigation, but also transactions, arbitrations and mediations. On the issue of admission by motion, the State Bar’s submission to the court said its “concerns are not parochial, or based on protectionism.” The Bar said that admission standards are “not for the purpose of providing lawyers with a monopoly of certain activities. Regulation exists to protect the public from being harmed by persons who have not demonstrated their competence to protect the public interest in performing critical functions exclusively entrusted to those licensed to practice law.” BONA FIDE BRAWL Charles Heuisler defended the bona fide office requirement, Rule 1:21-1[a], on behalf of the State Bar, telling the court that the rule is a key part of the state’s regulation of lawyers and exists to foster competence and accountability. Heuisler, a partner with Archer & Greiner in Haddonfield, N.J., said the rule must be placed among other requirements, such as passing the bar exam, taking the skills and multistate courses, getting approved by the character and fitness committee, paying into the client protection fund, and maintaining a business and a trust account with a New Jersey bank. It would be difficult to conduct random audits of lawyers admitted in New Jersey but based in another state if the bona fide office rule were eliminated, Heuisler said. Disagreeing with the Wallace Commission, Heuisler said the regulatory scheme is based on all the rules. To take out the bona fide office rule “is simply taking a domino out,” he said, suggesting that accountability and client protection would be jeopardized. The justices jumped all over Heuisler, who, as a southern New Jersey practitioner, is keenly aware of the onslaught of Philadelphia lawyers and firms into the southern part of the state. Speaking in favor of the Wallace Commission’s proposal to drop the bona fide office rule was a lawyer for the Philadelphia Bar Association. Douglas Eakeley called the rule “a barrier to clients” who might want to use a Philadelphia or New York lawyer. He urged the justices to follow the Wallace Commission recommendation to “let the client decide” whether he or she is comfortable being represented by a lawyer without a physical office in the state. “There are 60,000 New Jersey residents working in Philadelphia, and many thousands more go to New York state, so what is the rationale for imposing an arbitrary border on what is essentially a regional practice? … Don’t impose the choice on a New Jersey resident living near Philadelphia or New York,” said Eakeley, a partner with Roseland N.J.’s Lowenstein Sandler. The justices were much more active with questions during the bona fide office arguments, and for the most part expressed skepticism over the State Bar’s defense of the rule. Justice Virginia Long challenged Heuisler on his domino theory: “Why does the no-bona-fide-office change upend the scheme?” she asked. Chief Justice Deborah Poritz joined in to question the State Bar’s position that audits by the Office of Attorney Ethics would be difficult for out-of-state lawyers. Poritz suggested that the court could require the lawyers to bring their books to New Jersey, while Justice Barry Albin asked why New Jersey could not require out-of-state lawyers to have the audit in their home state, and be required to pay for it. “Give us the client’s perspective,” said Justice Peter Verniero, pointing out that the argument against the bona fide office rule today is the growing global economy. Heuisler responded by emphasizing the importance of the client-attorney relationship, including confidentiality. “There must be personal contact. That’s not done by e-mail, that’s not done by telephone.” Verniero replied, “Why doesn’t the market take care of that,” suggesting that if clients don’t want an out-of-state attorney without a local office, they will not retain that lawyer. When Heuisler responded that the client would still want contact with a “local attorney,” Poritz cut in to challenge the State Bar’s emphasis on face-to-face contact. “But, a client in South Jersey can’t use a lawyer in Philadelphia, but he can be represented by a lawyer in Hackensack,” said the chief rhetorically. Heuisler concluded, saying, “This [rule] is really done not to protect lawyers, but the public … clients, and other members of the bar. We have a series of carefully crafted rules. If you start attacking one, you begin to disassemble them all.” Eakeley, responding to a query by Justice Jaynee LaVecchia about the cost to New Jersey’s regulatory system, said a fee could be imposed on the out-of-state attorney. He called the current rule “an artificial construct.” Verniero asked Eakeley, “What’s the articulated hardship to the out-of-state lawyer? Is it just the cost” of maintaining the office? Yes, replied Eakeley, it’s the cost.

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