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Bar News - November 17, 2000 Studying Multistate Practice By: Harriet E. Miers WHEN IS THE last time you took - or defended - a deposition in another state? Have you ever traveled to another state to consult with and advise someone who works for a subsidiary of your client? How often have you been called out of state to negotiate on behalf of a client? If you work for a corporation, do you travel to states in which you are not licensed to do your work? If you did any of these things, were you committing the unauthorized practice of law (UPL) - technically speaking? In some states, the answer would be a resounding and concerned "Yes." It's difficult, however, to determine in which states. And even if you were guilty of a technical violation, do you think you were doing something improper, or do you think you were performing work you should be able to perform in order to serve your clients' legal needs? Traditionally, lawyers in the United States may practice law only in the states in which they are licensed, a restriction supported by UPL provisions that, although sporadically invoked, may be enforced by fee forfeiture, disqualification, professional discipline and, even in some jurisdictions, criminal conviction. A state's UPL restrictions are meant to protect its residents by ensuring that lawyers who represent them in the state are familiar with state law, procedures and ethics rules, and are subject to state disciplinary regulation. Many, but not all, lawyers believe that the changing nature of clients' legal needs, the changing nature of technology and communications and, consequently, the changing nature of law practice in this country may make the old restrictions outmoded. In August of 2000, ABA President Martha Barnett appointed an 11-member Commission on Multijurisdictional Practice, which I chair, to examine and make recommendations on these issues. The new commission began its work in September and expects to issue a preliminary draft report in March 2001. The commission hopes to have completed a report with recommendations by May 23, 2001, for the American Bar Association House of Delegates to discuss at its August 2001 meeting. This is a very fast track and we know it, but there is no time to waste. State legislatures are acting; other organizations, both public and private, are acting; and cases against lawyers involved in the kind of conduct described above are going forward. A national telephone seminar was sponsored by the Attorneys' Liability Assurance Society in December 1999 to discuss unauthorized practice and multijurisdictional practice issues that could affect its member law firms. That seminar attracted nearly 1,500 participants. The issue is ripe. If there is to be a consensus of any kind among the states and if the American Bar Association is to play a meaningful role in the debate, the association needs to act, and act quickly. The commission is committed to undertaking an objective and comprehensive national study. To do so, it needs the participation of state and local bar associations, ABA entities, individual lawyers, clients and other interested parties across the country. If you are a practicing lawyer, or a client, or otherwise have views to offer, the commission would like to hear them. It is important for the commission to determine whether, and to what extent, lawyers are practicing across state lines, and whether lawyers believe there are preferable alternatives to existing restrictions on such practice. Alternatives proposed at a March 2000 symposium at Fordham Law School ranged from doing nothing - maintaining the status quo - to providing for national licensing of lawyers. Some other suggestions included developing uniform state laws setting forth narrower and clearer restrictions on out-of-state practice, making it possible for out-of-state lawyers to receive permission to render a broader array of legal services in a particular state, and allowing more liberal admission of out-of-state lawyers for general purposes. A report on the symposium, together with other writings on this subject, may be found on the commission's website. The commission does not know the answers to all the questions raised and needs your input. Tell us: Are there really problems? If so, what problems are you encountering? Is multistate law practice increasingly common? Is multistate practice necessary if lawyers are to serve their clients effectively and efficiently? Should steps be taken with respect to practicing "Internet law" or "telephone law?" If so, how should the laws and ethical rules be reformed to better accommodate such practices (if at all)? The commission will be holding public hearings around the country prior to March 2001 to discuss these issues: on Feb. 17 and 18, 2001, at the ABA Midyear Meeting in San Diego and at meetings in Atlanta, Chicago, Dallas and New York. The hearings will include an educational segment designed to stimulate thought and dialogue. You are invited to attend one of the hearings and offer us written testimony. We will be providing more details about the hearings, including the dates and specific locations, in the future. This information will be posted on the commission's Web site as soon as it is available. To arrange to testify at a hearing, please contact John A. Holtaway of the ABA Center for Professional Responsibility at 312/988-5298 or at jholtaway@staff.abanet.org. You may send written comments to Holtaway at 541 North Fairbanks Court, 14th Floor, Chicago, Ill., 60611. There is also a listserv available for those who wish to keep up to date on the issue. To subscribe, send e-mail to jholtaway@staff.abanet.org. Finally, you are invited to contact any of the members of the commission for comment. A list of commission members is available on our Web site. We hope to hear from you as we undertake this important work. |
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