California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - SEPTEMBER 2001
spacer.gif (810 bytes)
spacer.gif (810 bytes)

California Bar Journal

The State Bar of California


REGULARS

spacer.gif (810 bytes)
Front Page - September 2001
spacer.gif (810 bytes)
News / News Briefs
Davis signs diversion bill, nixes more access money
Six new members elected to bar board
Board votes to keep MCLE hours at 25 over 3-year period
Supreme Court denies rehearing on disbarment
spacer.gif (810 bytes)
2001 Citations
Single father, practicing four years, devoted to pro bono
Pro bono awards
Antitrust lawyer honored
Judge Epstein receives Bernard Witkin medal
spacer.gif (810 bytes)
Opinion
From the President - A good year for the State Bar
MJP panel provides an interim solution
Letters to the Editor
spacer.gif (810 bytes)
MCLE Self-Study
A dangerous highway of discovery
Self-Assessment Test
MCLE Calendar of Events
spacer.gif (810 bytes)
You Need to Know
spacer.gif (810 bytes)
Discipline
Ethics Byte - Report shows with law firms, size does matter
Attorney convicted of killing client/lover resigns from bar
Attorney Discipline
spacer.gif (810 bytes)
Public Comment
California not ready for full MJP, according to task force report
spacer.gif (810 bytes)
Continued from Page 1
spacer.gif (810 bytes)

the bar exam. In a preliminary report issued at the end of July, the 18-member task force agreed it was time to shake up the status quo, but settled on a much more cautionary approach.

The report notes that of the options considered, "none was ideal," suggesting the panel members had difficulty reaching agreement.

"We did reach consensus on two points: We didn't want to maintain the status quo, and we didn't want total comity," said task force chairman Raymond Marshall, a former State Bar president.

The panel recommends a system of registration allowing in-house corporate counsel to perform legal services out of court and public-interest attorneys to serve the indigent on an interim basis under supervision of a State Bar member. It also recommends providing a "safe harbor" from the traditional definition of unauthorized practice of law so transactional and litigating lawyers can perform limited services, such as taking depositions.

"The idea is, if you're going to practice here on a regular basis, you should in fact take the bar exam," Marshall said. "But if you're here just on a limited basis, it doesn't make sense to try to register (as a member)."

But the panel rejected as too sticky the ideas of inviting all lawyers into the Golden State, which it said would create problems weeding out "unscrupulous and incompetent attorneys," or of seeking the participation of other states in creating a national bar, which could undermine individual states' discretion to determine who can practice.

The task force is seeking public comment on the study through the end of September.

"(The report) is a step in the right direction, by virtue that it is a step, but it's not quite what I was hoping for," Morrow said. "I'm a little bit disappointed in terms of it's very clear they pretty much flat-out reject the concept of reciprocity . . . I think it should be done now."

Morrow said he favors a system of "sister state" agreements that would allow lawyers to move freely among participating jurisdictions.

Marshall said some western states, including Washington, Oregon and Nevada, currently are trying to come up with such a compact but have had difficulty reaching agreement on some requirements.

Of particular concern for California, he said, would be ensuring multi-state access for attorneys with J.D.s  from unaccredited law schools, since many states require accreditation by the American Bar Association.

"As long as that's the case,  it's hard to come up with a proposal that wouldn't treat our California attorneys who have passed the bar but did not attend accredited schools as second-class attorneys," Marshall said. "We found that problematic. The task force wanted to make sure all our attorneys are treated fairly and equally."

Section 6125 of the California Rules of Court states, "No person shall practice law in California unless the person is an active member of the State Bar."

Despite the prohibition, it already is common practice for out-of-state attorneys to perform legal tasks here, Marshall said.

Private attorneys, especially those working for firms with offices in several states, legal experts and in-house counsel are among those who give advice, assist in transactions and interview witnesses, all of which constitute the unauthorized practice of law under current rules. Morrow acknowledged he could be counted among those who have practiced outside his own state's borders.

"I can't recall the number of times as a California attorney I went to many, many states and took depositions and never thought anything of it," Morrow said. "Oh my God, was I engaging in the unauthorized practice of law? Don't tell anybody."

The report acknowledges a need to accommodate attorneys who are increasingly mobile and often serve interests that aren't limited to just one state. It also notes that current restrictions can block consumers from hiring the attorney of their choice.

 "The reality of today is that the needs of many clients do not stop at state borders, and neither does the legal practice of the attorneys who represent them," the report said.

But the proposed changes give the most leeway to in-house counsel, who the task force decided were most hindered in that business interests frequently reach further than their home states, are less likely to harm the public since they do not serve individual clients, and are easier to manage because they would be under scrutiny of their employer.

Marshall said the relaxed rules, while a less-radical change than those suggested by Morrow, could provide the litmus test to determine whether California could further ease its restrictions in the future.

"This will give the law community, clients and enforcement officials a greater sense of what is acceptable, to be able to deal with and address the more pervasive problems," Marshall said.

"And we hope it will also spark dialogue with other states as to whether there should be some type of national license."