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Five years after the California Supreme Court upheld a law prohibiting out-of-state lawyers from practicing in the Golden State without a California Bar license, a court committee has proposed easing the rules. On Monday, the court’s Multijurisdictional Practice Implementation Committee sent out for public comment proposed rules that would let four categories of lawyers practice in California without being licensed there. The committee singled out in-house counsel, public interest lawyers and attorneys practicing temporarily in the state on both specific litigation or non-litigation matters. Public responses must be submitted to the court by July 7. The committee’s proposals, based on a report released in January 2001 by a California Supreme Court task force, go further than the task force with its recommendation to allow attorneys to practice temporarily on specific matters. On the other hand, the committee — following the task force’s lead — did not suggest reciprocity, an oft-discussed proposal that would let out-of-state lawyers practice in California only if their home states let Californians practice there. California has been under growing pressure to tear down some of its barriers to outside lawyers in acknowledgement of the increasingly global economy. A rule formulated 76 years ago, many said, ignored the advent of technological change, the Internet and the rapid growth of interstate and multinational commerce. That pressure was tinged with criticism when the California Supreme Court in 1998 upheld the 1927 law in Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119. Gerald Uelmen, a professor at Santa Clara University School of Law, said Monday’s proposals appear to be a direct response to Birbrower, which he said was a ruling that identified the need for change. “This is a big step for California,” Uelmen said. “There was a real reaction to Birbrower.” Peter Keane, dean of Golden Gate University School of Law, said he felt the committee’s recommendations were nothing more than the “recognition of reality.” All four of the categories of lawyers, he said, already practice in California in one form or another, as pro hac vice counsel in a particular case or by handling cases that cross state lines. “Whether they’re members of the California Bar or not has been totally irrelevant to the process,” he said. Pro hac vice counsel, for example, most often associate with local firms, Keane said, but local counsel is “just window dressing.” Some opponents of cross-border lawyering have expressed concerns in the past about the ethics of letting out-of-state attorneys practice without a California Bar license for fear that they hail from a locale with a less stringent bar examination. Keane says that’s ludicrous. Every other state in the country requires lawyers to graduate from schools accredited by the American Bar Association. “California’s the exception,” he points out, in that it allows graduates from state-approved and unaccredited law schools. Uelmen said he believes the committee took that into account by not recommending reciprocity. Other states would likely not allow graduates of non-ABA-accredited schools to practice in their boundaries. If that happened, Uelmen said, “we’d create two classes of California lawyers.” State Bar President James Herman said his organization, being the high court’s administrative arm for regulation and discipline, is reviewing the proposals and will provide input “with a particular eye toward the fiscal impact on the State Bar.” “We intend to work with the court,” he said, “to ensure ethical practice by lawyers practicing within California.”

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