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Following the lead of six other state high courts that already allow for border-crossing lawyers, the disciplinary board of the Pennsylvania Supreme Court recently proposed rule amendments that would authorize multijurisdictional practice in the commonwealth. The proposed rule would permit attorneys who haven’t been admitted to the Pennsylvania Bar to cross state boundaries and provide legal services on a temporary basis without breaking any ethics rules. Bar associations and ad hoc court commissions in at least 12 other states, including New York, have submitted recommendations to the courts on the issue and are awaiting court action. Currently, the Pennsylvania high court does not permit out-of-state attorneys to practice here unless the lawyer is a member of the state Bar or has been specifically authorized to appear pro hac vice before the court. If the amendments are adopted, out-of-state lawyers would also be subject to Pennsylvania’s rules of professional conduct and fall under the Pennsylvania Supreme Court’s disciplinary scrutiny. They still would not be allowed to appear in court without pro hac vice admission. Of course, even under current ethics rules, lawyers cross into Pennsylvania every day to take depositions, meet with clients or attend real estate closings. “If you put a group of attorneys from southeastern Pennsylvania in a room, I think you’d be hard-pressed to find one who hasn’t at some point rendered legal advice in another state,” said Timothy J. Carson, a lawyer at Saul Ewing involved in transactions work. That would technically be considered unauthorized practice of law in that state, Carson said. Elaine M. Bixler, executive director and secretary of the Pennsylvania Supreme Court Disciplinary Board, said the same thing — such activity is technically unethical. That is why the board — along with numerous other state high courts — has asked for feedback on the MJP issue from the legal community, Bixler said. The high courts of at least six states, including Delaware and New Jersey, have recently approved some version of a multijurisdictional practice rule, according to the Association of Corporate Counsel in Washington, D.C. (Virginia already had a provision permitting out-of-state attorneys to practice there temporarily.) “These rules are codifying existing practice,” said Susan Hackett, senior vice president and general counsel for the ACC, which advocates for allowing multijurisdictional practice. The current flurry of debate over multijurisdictional practice can be traced back to the outcome of a 1998 case before the California Supreme Court, called Birbrower Montalbano Condon & Frank, P.C., v. the Superior Court of Santa Clara County, Hackett said. In Birbrower, attorneys from a New York law firm were unable to enforce a fee agreement with clients whom they advised in person in California, over the phone from New York and in e-mail messages and faxes, regarding an arbitration dispute. After proceedings concluded, the clients would not pay the Birbrower firm its fees and sued them for malpractice. The California Supreme Court subsequently found that the attorneys had engaged in the unauthorized practice of law. “That was the case that really jolted the bar,” Hackett said. Hackett was a member of the American Bar Association commission that studied the multijurisdictional issue and proposed amendments to Model Rule 5.5 of Professional Conduct, suggesting lawyers be permitted to practice on a temporary basis in a jurisdiction where they were not admitted, noting that those lawyers be subject to the disciplinary board of that state. The ABA applied those changes to Model Rule 5.5 in 2001. The MJP rule amendments recently proposed by the Pennsylvania disciplinary board were largely structured after the ABA’s model rule, Bixler said. The rule “is more for transactional lawyers who do business in other states but who don’t necessarily need to be admitted pro hac vice because they aren’t actively appearing in court,” Bixler said. Not everyone is a fan of MJP, however. Individuals in the legal profession who object to multijurisdictional practice worry that attorneys who aren’t licensed in a particular state could “hit and run” — commit a serious ethics violation, flee and no jurisdiction would have power to hold the attorney accountable for the conduct, Hackett said. “But that’s the way it is right now in states without MJP — states don’t have the authority under their rules to do anything with them,” Hackett said. Under the ABA Model Rule 5.5, out-of-state lawyers would be subject to the disciplinary board of the state in which they provide legal services, she explained. Other lawyers wary of MJP fret over losing their “hometown advantage,” fearing that out-of-state lawyers would take business away from locally practicing attorneys, Hackett said. But litigators can also benefit from it, Hackett noted. For example, out-of-state litigators waiting to be admitted pro hac vice need to conduct depositions or discovery in the meantime and they would be covered under the MJP rule. “It’s a very good development,” said Bob Heim, chairman of the litigation department at Dechert. “It recognizes the realities of modern practice. Many lawyers have clients that are involved in issues in other states, and because of their familiarities with their clients and the issues, it’s inefficient not to represent their clients there.” Carson agreed. “It acknowledges the needs of our clients who are ever-wired and ever-global,” Carson said. “It strikes a reasonable balance between protecting the legitimate interests of the public, while allowing lawyers to provide the services to their clients that they deserve.” This Friday the Pennsylvania Bar Association’s House of Delegates plans to review two reports on the multijurisdictional practice rule — one from its committee on the unauthorized practice of law and a joint report from the Legal Ethics and Professional Responsibility Committee and the Multijurisdictional Practice Task Force. After reviewing the reports, leaders of the Bar could vote on whether to accept their recommendations, to amend them or to table the issue for future consideration, said Jennifer Branstetter, of the PBA’s communications department. The Disciplinary Board is asking that comments on the proposed rule be submitted by Dec. 19. A related rule recently proposed by the state Board of Bar Examiners would establish a limited-purpose law license for in-house corporate counsel who are otherwise not permitted to practice in Pennsylvania.

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