California Bar Journal
spacer.gif (810 bytes)


spacer.gif (810 bytes)

Facing today’s realities

spacer.gif (810 bytes)
spacer.gif (810 bytes)

Since long before my term on the board of governors, the State Bar has wrestled with the unauthorized practice of law (“UPL”). Now called “multi-jurisdictional practice,” the issue surfaced recently as the California Supreme Court, at the prompting of the legislature, impaneled an 18-person task force to study, among other issues, whether attorneys licensed to practice in other states may practice law in California without taking the Calif-ornia bar exam.

The work of the advisory task force on multi-jurisdictional practice is important to California in-house counsel, who both provide and purchase legal services. It is just as important to every California lawyer who has clients who live or do business outside of California.

In 1998, the California Supreme Court decided the Birbrower case. That case held that New York lawyers engaged in the unauthorized practice of law (and committed a misdemeanor) by performing legal work for a California-based client. Birbrower was probably a correct reading of existing law, but the court created a legal and ethical dilemma for all California lawyers who have a multi-state practice.

The initial reaction focused on the ability of non-California attorneys, in-house and outside counsel, to render any legal advice — transactional or litigation, oral or written, state or federal law — in California to California-based clients. Under Birbrower, a New York lawyer who attends a negotiation in Sacramento for a California client (and probably a non-California client as well), faxes or e-mails an opinion letter or form to a California-based client, or even gives oral advice to a California client by phone, is probably engaging in the unauthorized practice of law. His client, who might be a licensed California in-house counsel, risks aiding and abetting the commission of a misdemeanor.

Most California lawyers would not spend much time thinking about the dilemma of these non- California lawyers if Birbrower did not have a broader implication. If other states follow the Birbrower rule (and Oregon already has), the South Lake Tahoe attorney who responds to an e- mail from a Reno business client commits UPL in Nevada. The Los Angeles estate planner who flies to Santa Fe to meet with a client violates New Mexico law. The San Francisco employment or environmental expert who builds up a national practice is committing UPL in other states every time she provides legal services to her clients.

In a post-Birbrower world, more California lawyers may be committing UPL (and criminal violations) than ever before. Faced with the realities of today’s mobile multi-state, international practice, the court offered no practical guidance and left the field to the legislature, which passed SB 1782. In its original form, SB 1782 allowed attorneys who have already passed one U.S. bar examination, practiced for a minimum of three years and then passed the California moral character investigation, to be admitted to practice in California without taking the California bar examination.

After the intervention of Chief Justice Ronald George, the legislature agreed to refer this and other admissions issues for study. The legislation expressly requires the task force to make recommendations on how to deal with the UPL issue. We’re past the time for just admiring this issue. Now is the time for action if the legislature is not to step in again.

Clearly, SB 1782 provides the opportunity for a significant and, many would suggest, a radical step forward for the California legal community. Today’s legal admission standards were adopted and based on legal traditions, jurisdictional standards and the limited mobility which characterized the 19th century, not the 21st. Every other major profession — including doctors, accountants, architects and engineers — has recognized this cyberworld reality. Only the legal profession has resisted change and on grounds that are no longer relevant, applicable or even persuasive.

We should be clear what this debate is not about. First, we’re not talking about loosening the legal bars against people who are not licensed to practice law. Rather, we’re talking about lawyers who have passed a bar examination, are in good standing in another state and have years of actual practice.

Second, this is not a debate about exempting any lawyer who lives in California from the reach of the State Bar’s discipline system. The issue before the task force is how best to establish a system for California which will permit lawyers duly admitted and qualified in another state, including in-house counsel, to serve California clients in a particular matter or in a series of matters related to the lawyer’s expertise and practice. In addressing this issue, the task force will be establishing rules for other states dealing with California lawyers who want to serve clients outside of California.

The current system doesn’t work. The task force has to face up to the reality of today’s practice with creative and innovative thinking.

This is an opportunity to influence the future of our profession. For more information, log on to the American Corporate Counsel Association’s website at to find resource material and an analysis of multi-jurisdictional practice from the perspective of in-house counsel.

A former member of the State Bar Board of Governors, John McGuckin is now a member of the board of directors and chair of the Advocacy Committee of the American Cor-porate Counsel Association. He is executive vice president, general counsel and secretary of Union Bank of California.