A survey of recent developments in multijurisdictional practice
By George A. Riemer
The American Bar Association Multijurisdictional Practice Commission will be issuing its preliminary report in November 2001. In conjunction with the release of that report, I thought bar members would be interested in an update of state, regional and national activities concerning the regulation of the multijurisdictional practice of law.
Tri-state reciprocity effectively eliminates the rationalization that a little law practice by an Oregon lawyer in Washington or Idaho isn't the unlawful practice of law because it is too inconvenient to take the bar examination to engage in such practice. Qualified Oregon lawyers will soon be able to become full and unrestricted members of the Idaho and Washington State Bars without having to pass two additional bar examinations. Tri-state reciprocity does not change the unlawful practice of law statutes, rules and regulations of the three states. What the unlawful practice of law was before tri-state reciprocity goes into effect will still be the unlawful practice of law after tri-state reciprocity goes into effect. Note, however, that the Washington Supreme Court recently adopted a new definition of the practice of law and established a new body to consider UPL complaints. Additional information on these recent changes can be obtained at http://www.wsba.org.
Currently, I believe the answer to the foregoing question is 'yes.' BOG Policy 9.700(2) indicates that the practice of law in Oregon includes providing advice or service to another on any matter involving the application of legal principles to rights, duties, obligations or liabilities. Taking a deposition in Oregon involves the application of legal principles to rights, duties, obligations or liabilities, in my opinion. Such activity, if engaged in by a person not admitted to the practice of law in Oregon, would in my opinion constitute a prima facie violation of ORS 9.160. ORS 9.160 provides that '[e]xcept for the right reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, no person shall practice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar.'
SAFE HARBOR' RULES
The American Law Institute was the first major group to develop and propose a 'UPL safe harbor' provision for lawyers. The ALI's Restatement of the Law Governing Lawyers provides as follows, at Section 3:
SCOPE OF PRACTICE OF LAW BY A LAWYER
Under my deposition example above, the California lawyer could take a deposition in Oregon without violating Oregon UPL statutes and rules under this provision.
The ABA's Ethics 2000 Commission has proposed and the ABA House of Delegates has under consideration the amendment of the ABA Model Rule of Professional Conduct 5.5 in the following way:
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW
The ABA MJP Commission is considering a whole host of suggested changes to the ABA Ethics 2000 Commission's suggested amendment of ABA Model Rule of Professional Conduct 5.5. For more information on these suggested changes, go to http://www.abanet.org/cpr/mjp-home.html and click on 'Written Comments/Position Papers.' It remains to be seen what the ABA House of Delegates decides to do concerning the ABA Ethics 2000 Commission's suggested amendments to ABA Model Rule 5.5 and what recommendations the ABA MJP Commission makes concerning the amendment of this rule. The ABA House of Delegates meets next in February 2002 in Philadelphia, and the ABA MJP Commission is expected to release its preliminary report in November 2001.
AND PERILS OF 'UPL SAFE HARBOR' RULES
The problem with the foregoing is that it is extremely unlikely all U.S. lawyer-licensing jurisdictions would collectively agree on what a uniform rule should say. And the adoption of such a rule might take coordinated action by both legislatures and the courts in many jurisdictions. Even a nationally uniform pro hac vice rule would be very difficult to adopt.
Of course, if the European Community can adopt rules that permit the multijurisdictional practice of law by its lawyers, the United States should be able to figure out how to adopt uniform UPL safe harbor and pro hac vice rules. The more difficult questions revolve around the lack of enforceability of UPL safe harbors even if adopted on a national basis.
Consider, for example, the following provision in the ABA Ethics 2000 Commission's proposed amendment of ABA Model Rule 5.5:
Definitionally, when does a matter arise out of or reasonably relate to the lawyer's representation of a client in a jurisdiction in which the lawyer is admitted to practice? If a lawyer guesses wrong, she is subject to being charged with unethical conduct and the unauthorized practice of law. Furthermore, since the lawyer would not be licensed in the jurisdiction in which the conduct occurred, the lawyer's state of admission would have to investigate and prosecute the lawyer for the alleged unethical conduct unless the host jurisdiction had a rule that subjected the lawyer to discipline even though she was not admitted to practice there. The lawyer would have paid nothing to support the disciplinary process of the host state. Her state of admission might not have the resources to pursue an ethics charge against her for conduct that occurred in the host state when it was busy enough with investigating and prosecuting in-state ethics violations.
The foregoing discussion does not do justice to the potential and perils of 'UPL safe harbor' rule proposals, but I do not believe they are the panacea some consider them to be to the complexity and inconsistency of existing UPL regulations in the United States. Bright lines are better than obscure ones, but far more discussion needs to take place concerning the superiority of the 'UPL safe harbor' model of lawyer UPL enforcement over other options such as uniform reciprocal admission rules than has occurred to date before I hope a decision is made to adopt that model for Oregon and other Northwest states.
OREGON ADOPT 'UPL SAFE HARBOR' RULES?
ABOUT THE AUTHOR
George A. Riemer is deputy director and general counsel of the Oregon State Bar. He can be reached at (503) 620-0222, ext. 405, or by e-mail at firstname.lastname@example.org.