Bar Counsel

MJP Update

A survey of recent developments in multijurisdictional practice

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
Idaho, Oregon and Washington are implementing admission reciprocity rules that will allow qualified members of the bars of each state to obtain admission to practice in the other two states without having to take and pass their bar examinations. A 'Q and A' document about tri-state reciprocity is available on the Oregon State Bar's web site at http://www.osbar.org.

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.

BEYOND TRI-STATE RECIPROCITY
What should be done about occasional or infrequent law practice in a jurisdiction a lawyer is not admitted to practice in? What about a California lawyer who wants to be able to conduct a deposition in Oregon concerning a California case she is handling for a California client? Is this the unlawful practice of law in Oregon? Should it be?

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.'

'UPL SAFE HARBOR' RULES
Various groups, including the American Bar Association Multijurisdictional Practice Commission and numerous state and local bar associations, are currently studying the issue of how unlawful practice of law restrictions should apply to lawyers. A concept that appears to be gaining support is that the states should apply uniform rules which allow out-of-state lawyers to engage in designated types of legal practice in states they are not licensed to practice in so long as they stay with the 'safe harbors' that are created.

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:

JURISDICTIONAL SCOPE OF PRACTICE OF LAW BY A LAWYER
A lawyer currently admitted to practice in a jurisdiction may provide legal services to a client:

(1) at any place within the admitting jurisdiction;

(2) before a tribunal or administrative agency of another jurisdiction or the federal government in compliance with requirements for temporary or regular admission to practice before the tribunal or agency; or

(3) at a place within a jurisdiction in which the lawyer is not admitted to the extent that the lawyer's activities arise out of or are otherwise reasonably related to the lawyer's practice under Subsection (1) or (2).

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

(a) A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or.

(b) A lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law in this jurisdiction when:

(1) the lawyer is authorized by law or order to appear before a tribunal or administrative agency in this jurisdiction or is preparing for a potential proceeding or hearing in which the lawyer reasonably expects to be so authorized; or

(2) other than engaging in conduct governed by paragraph (1):

(i) a lawyer who is an employee of a client acts on the client's behalf or, in connection with the client's matters, on behalf of the client's commonly owned organizational affiliates;

(ii) the lawyer acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer's representation of a client in a jurisdiction in which the lawyer is admitted to practice; or

(iii) the lawyer is associated in the matter with a lawyer admitted to practice in this jurisdiction who actively participates in the representation.

(b) (c) A lawyer shall not assist a another person who is not a member of the bar in the performance of activity that constitutes the 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.

THE PROMISE AND PERILS OF 'UPL SAFE HARBOR' RULES
Significant progress would be made to bring clarity to the morass of existing, and often times conflicting, UPL regulations in the United States if each lawyer-licensing jurisdiction in the United States adopted a uniform rule which specified when and under what circumstances out-of-jurisdiction lawyers could practice without engaging in the unlawful practice. Every lawyer in every jurisdiction would know that X was permitted and Y was not. If a lawyer wanted to engage in Y, he or she would have to be fully admitted to the practice of law in a particular jurisdiction.1

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:

(b) A lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law in this jurisdiction when:
* * *

(2) other than engaging in conduct governed by paragraph (1):
* * *

(ii) the lawyer acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer's representation of a client in a jurisdiction in which the lawyer is admitted to practice;
* * *

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.

SHOULD OREGON ADOPT 'UPL SAFE HARBOR' RULES?
We are just beginning to ramp up for the start of tri-state reciprocity in the Northwest. While the Washington State Bar Association's Future of the Legal Profession Task Force has just come out with a report supporting the adoption of a 'UPL safe harbor' rule in Washington State (go to http://www.wsba.org for a copy of the task force's report), I hope we give tri-state reciprocity a fair chance to enhance the availability of legal services to the citizens of the Northwest states before we consider other changes. If this program proves successful, we can consider adding additional states to the arrangement. The Board of Governors may wish in the meantime to appoint a special task force to consider the recommendations that come out of the ABA MJP Commission. Whether additional adjustments to Oregon's UPL statutes and regulations are in order should await further study by the Oregon State Bar.

ENDNOTES
1. One such proposal can be found online at http://www.abanet.org/lpm/fall01com.pdf