 Clients need to be empowered. They need to
make informed decisions. Therefore, we must educate them. Often, we have to readjust the
expectations engendered by media myths, such as Ally McBeal, the hype around the McDonald’s
cup of coffee case, or the darkened, windowless interrogation room on “Law and Order.”
(Who doesn’t count the constitutional violations regularly occurring in that
interrogation room?)
Incorrect (but reasonable) expectations can result in attorney-client
relationships, when lawyers thought they were merely passing the time of day. Client
education is mandated in order to obtain informed written consents to divided loyalty, or
variations regarding obligations of confidentiality. Re-member: Rule of Professional
Con-duct 3-310 is a “guidebook” on how to manage conflicts of interest.
Clients believe we live in a global economy in which goods, services,
ideas and deals can be seamlessly transported with a flick of a key while surfing the web.
This is the information age and sensible expectations should be validated. As their
businesses flourish (leaping state and national boundaries), clients expect to take their
lawyer with them, to negotiate or litigate anywhere. After all, their lawyers are their
advocates and champions. Clients and lawyers are both dismayed to find that lawyers are
restricted by a patchwork of state licensing requirements, in addition to liability for
the unauthorized practice of law (UPL) statutes. These could result in criminal penalties,
disciplinary sanctions, civil liability, and most effectively, denial of hard-earned fees.
In Birbrower v. Superior Court (1998) 17 Cal. 4th 119, Silicon Valley
“wise guys” knowingly accepted legal services from a New York law firm,
including faxes, telephone communications, and their participation in arbitration. Since
the New York lawyers failed to associate in local counsel, these “wise guys”
effectively denied their obligation to pay fees, since the New York lawyers (not admitted
in California) had engaged in UPL. (Michigan and Virginia have “temporary”
exemptions.) You may be thinking pro hac vice. But what if the case is transactional?
Also, many states grant pro hac vice status inconsistently or limit the number of
occasions granted. How many corporate in-house counsel are engaging in UPL at this moment?
The so-called “federal exception” is an urban lawyer myth. The “practice of
law” is a burgeoning concept, not only because of technical innovations, but because
we counsel, advise, hold hands, commiserate, dissuade and dispel. We do it all.
When we telephone a client who is out of state, telephone into a
state, fax or e-mail the East Coast, is that the practice of law? The combinations are
innumerable: clients in-state or out-of-state, property in-state or in Australia. How is
it wrong or “unauthorized” for lawyers to help their clients with their needs?
The services we provide to clients cannot be configured into a
lock-box. That would be parochial, provincial and feudal. Lawyers who are willing to bear
responsibility must be exempt from UPL statutes. These laws only harm clients by denying
them “their” lawyer, in whom they believe. We need to legitimize
multi-jurisdictional practice, and our clients need it now. |
