California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JANUARY 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - January 2000
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News Briefs
Former Unruh aide appointed to serve on State Bar board
Ardaiz, O'Leary named jurists of the year for '99
Judicial Administration fellowships
Public law section online library
Board meets Feb. 4-5
51.2 percent pass July '99 bar exam
Board hires search firm for new bar chief
Litigation section offers MCLE week in legal London
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Trials Digest
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From the President - Reciprocity reform: The future is now
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Opinion
For most Americans, our system is a failure
Ethics 2000: On target, or lost in space
Letters to the Editor
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Public Comment
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MCLE Self-Study
Of Counsel: Avoiding Conflicts
Self-Assessment Test
MCLE Calendar of Events
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Important Information About Your 2000 Membership Fee
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You Need to Know
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Appointments
Apply to serve on a bar committee
Bar seeks applicants for ABA delegates
Judge evaluation positions open
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Discipline
Ethics Byte - Warding off the foul tort in a new year
Bankruptcy attorney disbarred after abandoning clients
Attorney Discipline

FROM THE PRESIDENT

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Reciprocity reform: The future is now
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By ANDREW J. GUILFORD
President, State Bar of California
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Andrew J. GuilfordIn my last president’s column, I noted the importance of foresight, which is recognizing where we can and should be in the future, and then working in the present to obtain the ideal.

Foresight involves identifying inevitable historical trends, which is difficult because some movements which appear to be trends turn out to be temporary swings of a pendulum which eventually swings back the other way.

Will digital photography replace film?

Will the movement towards tolerance in the late 20th century sweep into broad new areas of acceptance?

Do events in Quebec and Russia show a trend for or against large unified nations?

Does NAFTA reflect an inevitable trend toward international free markets now futilely contested in Seat-tle?

Are the few remaining communist states in the world resisting an inevitable trend against them?

And what about regulatory agencies such as the State Bar of Califor-nia?

Some might argue there is a trend against regulation and in favor of free market solutions. Nobel Prize Laureate Milton Friedman, the high priest of the free market gospel, preaches that lawyers reap monopolistic profits through a system of occupational licensure protecting lawyers from competition.

Bar associations do determine who may compete with lawyers. Such restrictions on the freedom to choose a profession are generally frowned on by fundamentalist free marketeers.

Of course, the congregation reading this column understands that lawyers are different, and that clients need protection from the unauthorized and improper practice of law. It is this principle, and the need to maintain and improve our system of justice, that supports the existence of mandatory bar associations.

But still, future trends and changing markets and technologies require reforms to aspects of our regulatory system. One such aspect involves multijurisdictional practice. The Final Report of the Commission on the Future of the Legal Profession and the State Bar of California stated the following at pages 71-72:

“Although the concept of limiting admission to the practice of law is strongly rooted in our society, there are growing concerns about the extent of such limitations. For example, critics of the legal profession frequently posit that one of the primary purposes of a state bar is to limit admission to practice law and preserve and protect the economic interests of current bar members. Others recognize the widespread public perception of inadequate access to our justice system. These sentiments are more often than not challenging the restrictions placed on admission to the bar . . . .

“The spread of information technologies and transportation advances have compressed the country and made possible easy, economical, and immediate communications to and from virtually any location. The parochial boundaries dividing states are becoming impediments to work efficiencies and the flow of commerce. Corporate in-house counsel, exclusively federal court practitioners, lawyers at mega-firms with branch offices worldwide, and others who travel constantly to serve their clients, have long been seeking a relaxation of what they view as unnecessary barriers to enable them to practice from state to state.

“On an international level, multilateral trade agreements, such as NAFTA, the European Union, and the GATT, are breaking down services and trade restrictions from nation to nation. Persistent adherence to state requirements for admission will thwart progress and economic opportunity in the increasingly interdependent global village.”

Recognizing these factors, the Futures Commis-sion recommended that California reform its system by granting reciprocity. Some say that lawyers are the lubricants in the machinery of industry. If so, the innumerable lawyer licensing bodies in our country and the world put sand in the gear box of industry.

Now is the time for reciprocity. As noted by the Futures Commission, the problem is particularly difficult for lawyers who move around in their legal careers and give advice across “parochial boundaries.” This describes many in-house counsel in California.

A solution is needed which will reflect the realities of our age without injury to California clients. An appropriate solution could provide numerous benefits, including increasing the attractiveness of California for businesses needing to move lawyers into the state. One creative suggestion I recently received would be to grant reciprocity to attorneys performing a sufficient number of supervised pro bono hours in California.

An effective solution must assure that the overall quality of legal service in California does not decline. Our present system of denying admission to an experienced, qualified Stanford Law School graduate licensed in New York and Illinois is not protecting the quality of legal service in our state, and does far more harm than good.

We must recognize future trends and reform our system as recommended by the Futures Commission. To explore the various alternatives and make a proposal, I am appointing a Multijurisdictional Practice Task Force.

Ideas and comments are welcome, particularly from those affected most, such as in-house counsel.