California Bar Journal
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jurisdictional practices (MJPs). “The alarm that was set off is that as we enter the 21st century, our unauthorized practice of law and our geographic limitations are antiquated,” says Bob Hawley, the bar’s deputy executive director.

“The issue of multijurisdictional practice is upon us,” says State Bar President Andrew Guilford. “Birbrower interpreted the statute about the practice of law correctly, but the effect is that people are now practicing in California without a license.”

Guilford has long been a proponent of reciprocity, a practice which would allow attorneys from other states to practice in California without taking the bar exam, if the other state extends the same courtesy. The bar’s so-called Futures Commission recommended in 1995 that California adopt reciprocity in admissions, recognizing that law is national in character and practice, and attorneys should be able to work in different jurisdictions in pursuit of their practices. The same year, the Conference of Delegates called for an easing of the admissions requirements for out-of-staters as long as certain conditions are met.

The American Corporate Counsel Association (ACCA), representing some 11,300 members working in almost 5,000 corporations, favors uniform standards for admission administered by the various states. In-house counsel frequently have practices that cross jurisdictional lines and therefore confront the issues of bar admission, license to practice and the unauthorized practice of law on a regular basis.

On the legislative front, state Sen. Bill Morrow, R-Oceanside, introduced a measure earlier this year to permit comity in California, exempting from the bar exam requirement an attorney who has been an active lawyer in another state for three years. The bill has been amended to call simply for a study of comity and is making its way through the legislature.

And just last month, Martha Barnett, new president of the American Bar Association, named a special commission to study multijurisdictional practices, which she called the legal profession’s “issue du jour.” MJPs raise questions about ethics, disciplinary rules, bar admission standards and the protection of the public, she said, adding that she believes it’s time to look at the rules governing such practices.

Jerome BraunAlthough the United States has 51 separate law licensing authorities, supporters of reciprocity argue that technology, ease of travel and changing markets have made state boundaries seem like parochial impediments to commerce and work efficiencies. Add national megafirms, federal practitioners and inhouse counsel for large corporations to the mix, they say, and a uniform standard for admission becomes not only attractive but almost necessary.

Each state is allowed under our federal system to establish its own standards for admission. About a quarter of those states also offer some type of admission without examination to out-of-state lawyers, either through reciprocity or comity. The rules usually require a minimum number of years of practice, such as five of the last seven years, as well as graduation from an ABA-approved law school. Some states allow inhouse counsel to handle transactional matters. Out-of-state lawyers can be admitted in California pro hac vice for the limited purpose of a single matter and are usually required to associate with local counsel.

Most other states also have only one or two law schools, and offer fairly limited access to the bar exam because most require candidates to have graduated from an ABA-approved law school. In California, on the other hand, 60-plus law schools turn out prospective attorneys. While it offers the greatest access to its bar exam of any state, California also sets the standard for admission quite high to make sure that only qualified persons are licensed to practice.

Public protection and that high admission standard are the principal reasons reciprocity and comity have so far been rejected in California, says Jerome Braun, the State Bar’s director of admissions. “Public protection is our paramount objective,” Braun says. “The question we need to ask is whether multijurisdictional practices advance or detract from public protection.”

As far as Braun and the Committee of Bar Examiners are concerned, California’s bar examination provides reasonable assurances that attorneys who practice here have met a very high standard. They believe if an out-of-state lawyer who has not met the same standard is permitted to work here, the public may become vulnerable.

There are other issues, as well. Executive Director Judy Johnson said policymakers should ask what public interest is served by reciprocity and how it affects public access to the legal system. “Why do we need to invite lawyers from other states to come here, especially if they haven’t passed our bar exam,” she asked.

But Guilford believes that California’s rules, by denying admission to a qualified, experienced graduate of a topnotch law school who practices in another state, do more harm than good and do not protect the quality of legal service in California. He also points to estimates that “significant” numbers of inhouse counsel working in California are not licensed here. “What do we do?” he asks rhetorically. “Prosecute inhouse lawyers?”

Technology and geography raise a vast array of other issues and ethical questions. Can a Chicago-based attorney advise a client living in Illinois about California law? Who regulates an online service based in another state but used by California residents? What about a New York lawyer who sends a fax to California containing a clause about California law?

Realistically, the California bar’s hands are tied, because it has no authority to regulate out-of-state attorneys who practice here because they are not members of the State Bar. Guilford believes with reciprocity, those out-of-state lawyers could be governed in California. “We can ignore them or we can get them on board and regulate them,” he says.