Oregon State Bar Bulletin — NOVEMBER 2002
| Bar Counsel |
As many of you know, the ABA Multijurisdictional Practice Commission issued its final report and recommendations this past summer. The commission’s recommendations were considered and approved, with minor tweaks, by the ABA House of Delegates on Aug. 12, 2002. The crown jewel of the commission’s recommendations was to amend ABA Model Rule of Professional Conduct 5.5 to permit U.S. lawyers to engage in certain types of practice in U.S. jurisdictions they are not licensed to practice in without being accused of engaging in the unauthorized practice of law.
Newly amended ABA Model Rule of Professional Conduct 5.5 now authorizes lawyers to engage in the following types of temporary practice activities in U.S. jurisdictions they are not licensed to practice in:
1. When they are undertaken in association with a lawyer who is admitted to practice in the jurisdiction and who actively participates in the matter;
2. When they are in or reasonably related to a pending or potential proceeding before a tribunal in the jurisdiction or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
3. When they are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in the jurisdiction or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; and
4. When they are not within paragraphs 2 or 3 above, they arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
In addition, new ABA Model Rule of Professional Conduct 5.5 allows lawyers to establish an office or other systematic and continuous presence in a jurisdiction in which they are not licensed to practice in two circumstances: 1) when the legal services are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission and 2) when the legal services are authorized to be provided by federal law or other law of the jurisdiction.
Lawyers qualifying for multijurisdictional practice under ABA Model Rule 5.5 must not be disbarred or suspended from practice in any jurisdiction. Those engaging in authorized temporary practice must not establish an office or other systematic and continuous presence in any jurisdiction in which they intend to engage in such practice.
While new ABA Model Rule of Professional Conduct 5.5 sets a new standard for lawyer regulation, it is not self-executing. Individual U.S. jurisdictions must decide whether to adopt it or some variation before lawyers will be able to rely on its provisions to engage in temporary or continuous practice in jurisdictions in which they are not currently licensed to practice law.
For more information on the ABA’s new model rules and policies on the multijurisdictional practice of law, go to www.abanet.org/cpr/mjp-home.html.
Invitation to Northwest Bars
In April 2002, OSB President Angel Lopez invited, with the approval
of the OSB Board of Governors, the Idaho, Utah and Washington State
Bars to join with the OSB to study the desirability of uniform ethics,
including multijurisdictional practice, rules in the four states.
This joint study effort is coming together. Representatives of the
four state bars met in Portland on Oct. 24 to discuss these and
other issues. I think it would make a great deal of sense if the
four states could adopt, at a minimum, uniform MJP rules based in
whole or in part on new ABA Model Rule of Professional Conduct 5.5.
With such a uniform standard, lawyers in each of the four states
would know what was and was not permitted in the area of temporary
practice in the four states. Of course, lawyers wishing greater
flexibility in law practice activities can utilize the new reciprocity
admission rules in Idaho, Oregon and Washington. Utah has a similar
reciprocity admission rule under study at this time.
Rules in Other Jurisdictions
Only one state, Nevada, has actually adopted MJP rules along
the lines suggested by the ABA MJP Commission to date (most states
have study groups in the process of considering the matter). Nevada’s
new rules went into effect Sept. 24, 2002. They authorize out-of-state
lawyers to engage in the following types of temporary practice activities
in Nevada:
1. Appear before a tribunal in Nevada by law or order of the tribunal or are preparing for a proceeding in which they reasonably expect to be so authorized;
2. Participate in Nevada in investigations and discovery incident to litigation that is pending or anticipated to be instituted in a jurisdiction in which they are admitted to practice;
3. Legal work as employees of a client when they are acting on behalf of the client, or, in connection with the client’s matters, on behalf of the client’s other employees, or its commonly owned organizational affiliates in matters related to the business of the employer, provided they are acting in Nevada on an occasional basis and not as a regular or repetitive course of business in Nevada (Nevada has adopted a separate new rule on admission of in-house counsel as members of the State Bar of Nevada);
4. Law practice with respect to a matter that is incident to work being performed in a jurisdiction in which they are admitted, provided they are acting in Nevada on an occasional basis and not as a regular or repetitive course of business in Nevada;
5. The occasional representation of a client in association with a lawyer who is admitted in Nevada and who has actual responsibility for the representation and actively participates in the representation, provided that the out-of-state lawyer’s representation of the client is not a part of a regular or repetitive course of practice in Nevada;
6. Representation of a client on an occasional basis and not as part of a regular or repetitive course of practice in Nevada, in areas governed primarily by federal law, international law, or the law of a foreign nation; or
7. Work as arbitrators, mediators, or impartial third parties in an alternative dispute resolution proceeding.
Under new Nevada Supreme Court Rule 189.1, out-of-state lawyers who provide legal services for Nevada clients in connection with transactional or extra-judicial matters that are pending in or substantially related to Nevada must file a yearly report, and pay a $150 filing fee, describing the nature of the clients for which they have provided services that are subject to the rule and the number and nature of the transactions performed for each client during the previous twelve month period. Reporting lawyers are not to disclose the identity of any clients or any information that is confidential or subject to attorney-client privilege.
Nevada also has new rules concerning the duties of members of the State Bar of Nevada who do not maintain an office in Nevada (Nevada Supreme Court Rule 42.1), the names of multijurisdictional law firms (Nevada Supreme Court Rule 199) and the duties of law firms having an office in Nevada and in one or more other jurisdictions (Nevada Supreme Court Rule 199.1). For more information on these new rules, go to the State Bar of Nevada’s web site (http://www.nvbar. org) and click on MJP.
A proposed revision of Colorado’s unauthorized practice of law rules is pending before the Colorado Supreme Court at this time. Colorado’s approach is unique in that all manner of temporary practice would be permitted so long as the out-of-state lawyer did not establish domicile in Colorado. Part of proposed Colorado Supreme Court Rule 228 provides as follows:
(c) The unauthorized practice of law shall not include the practice of law by an attorney who is licensed to practice law and is in active status in another jurisdiction in the United States, and who is a member in good standing of the bar of all courts and jurisdictions in which he or she is admitted to practice (an 'out-of-state attorney'), provided that such attorney meets each of the following criteria:
(1) has not established domicile in Colorado;
(2) has not established a place for the regular practice of law in Colorado from which such attorney holds himself or herself out to the public as practicing Colorado law or solicits or accepts Colorado clients; and
(3) in any appearance in any court of record or before any administrative hearing officer of Colorado, complies with Colorado’s pro hac vice rules.
The proposed new Colorado rules go on to provide that any attorney licensed in another jurisdiction, but not in Colorado, who practices in Colorado is nonetheless subject to the Colorado Rules of Professional Conduct and the Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings.
A separate proposed new rule (Rule 222 – Authorized Single-Client Counsel Rule) establishes a streamlined admission procedure for corporate counsel. If admitted under this rule, corporate counsel would be authorized to practice law in Colorado only for so long as the lawyer was engaged in such practice. The lawyer would 'have the authority to act on behalf of the single client as if licensed in Colorado; except that any appearance in any court of record requires that the attorney comply with the requirements of Rule 221 (Colorado’s pro hac vice rule).' Corporate counsel admitted under this new rule would also be subject to the Colorado Rules of Professional Conduct and the Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings. If this proposed new rule was adopted by the Colorado Supreme Court in the near future, Colorado would become the fourteenth state with a corporate counsel admission rule.
Conclusion
The American Bar Association’s recent efforts to adopt model
multijurisdictional practice rules are to be applauded. They give
the states, territories and U.S. possessions a valuable blueprint
for the development of their own rules in this area. Nevada leads
the way in the actual adoption of rules that have the force and
effect of law. I hope the upcoming four state ethics rules study
group can develop a set of MJP rules that each state will be comfortable
adopting.
A set of uniform MJP standards in the Northwest would bring greater clarity to the rules of the road concerning cross-state law practice. Lawyers shouldn’t have to guess whether their conduct is or is not the authorized practice of law in a jurisdiction in which they are not admitted to practice. Clear, uniform MJP rules will facilitate commerce and help reduce costs to clients. Of course, lawyers engaged in multijurisdictional practice, authorized or not, should be subject to discipline in the jurisdictions in which they practice.
The ABA MJP Commission has also recommended a rule to make this clear as well as a rule on the choice of ethics rules in disciplinary proceedings. These recommendations should also be implemented on a uniform basis in the Northwest.
George A. Riemer is general counsel and deputy director of the Oregon State Bar. He can be reached at (503) 620-0222 or toll-free in Oregon at (800) 452-8260, ext. 405, or at griemer@osbar.org.