California Bar Journal
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A cautious solution to the MJP issue
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President, State Bar of California
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Karen NobumotoThe world has become a global marketplace, brought on by tremendous advances in technology and unbelievably rapid growth of multinational commerce. Not surprisingly, the legal profession has assumed its role as a major player, with lawyers leading the way in corporate expansion throughout the world.

As a consequence, the practice of law as we know it is changing every day. Not just in the business world, where boundaries such as state and national borders no longer seem to matter, but also in the delivery of legal services to average citizens, many of whom have been priced out of the market. All of this has raised a cry, which has picked up steam over the last few years, to allow lawyers who are licensed elsewhere to come to California to practice law without taking our bar exam.

A task force appointed by the California Supreme Court faced the difficult challenge of addressing this concern and, as with so many important issues over the years, California is taking a leading role in helping our profession change with the times.

The proposal issued by the task force is a good beginning. The recommendation now before the Supreme Court is that restrictions be relaxed in two specific areas: 1) in-house counsel who provide out-of-court services exclusively for a single, full-time business that does not provide legal services to a third party, and 2) public interest lawyers who provide legal services to indigent clients on an interim basis before taking the California bar exam.

This is the natural place for us to begin. California, in essence, will be dipping its feet into the water, giving this experiment a chance to work before adopting any more sweeping measures. The task force clearly recognized this and, in fashioning a middle-of-the-road approach, rejected three of the more extreme proposals it had to consider: 1) establishing a national bar; 2) creating reciprocity which would permit California lawyers to practice in other states in return for those states' lawyers having the same privilege here; or 3) establishing comity, a system which would permit attorneys licensed in other states to practice in California even without a reciprocal privilege.

Instead, the task force took into consideration the paramount concern of the State Bar: public protection. It is understood that corporations that choose an in-house lawyer licensed elsewhere to handle its legal matters in California will assume any risk which arises out of that lawyer's practice here. And in the legal services area, the out-of-state lawyers will not have carte blanche to do what they want: They will still have to pass the California bar exam because they are only permitted to practice here on an interim basis.

This middle-of-the-road approach will give the entire country a chance to see how these measures work. As the leaders on this issue, our role will be to monitor the experiment and judge its effectiveness in both the corporate environment and in delivering legal services to Californians who cannot afford to pay for them. If after several years we see that Californians are benefiting, then we need to consider moving forward with other measures that will help our profession continue to meet the changing realities of the world.

Working gradual, worthwhile change
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John K. Van De KampThe inability of California lawyers who have passed our rigorous bar examination to use their California license out of state has long been a sore point.

The primary reason for this state of affairs has been California's unwillingness to grant reciprocity to lawyers from other states; the primary reason for this is protection of our consumer clients from lawyers from other states without an understanding of California law, some of whom may fall beneath the lofty standards we set for our lawyers.

Call it Consumer Protection. Call it Protectionism. Call it Elitism.

The result has been tough on California lawyers who may want to practice elsewhere and have to meet the standards (i.e. exam) imposed by other states.

The Supreme Court's 18-person Advisory Task Force on Multijurisdictional Practice put its toe in the water in its Jan. 7, 2002, report on the subject, recommending some limited but worthwhile changes in our rules.

No, it does not open the floodgates that would permit us to take our State Bar card to other states as an "Open Sesame" to practice law.

Instead it would open the door a bit wider for out-of-state lawyers. Today we permit out-of-state attorneys to appear "pro hac vice," and grant limited authority to foreign legal consultants, out-of-state arbitration counsel and military counsel.

The report recommends permitting in-house counsel to provide services to a single business entity employer, to register and be permitted to practice here provided they pay registration fees, abide by our State Bar rules, and submit to its discipline, on the condition they're members in good standing of the bar of another state. Such registrants would not be permitted to make court appearances.

From a consumer protection point of view, that makes sense. Their employer is their client. The employer will suffer the consequences if its lawyer performs inadequately.

The task force also concluded that out-of-state lawyers relocating to California should for a limited duration be permitted to practice public interest law under the supervision of public interest lawyers before becoming members of the State Bar. The purpose: increase access to justice for the indigent. A worthy cause. At the same time, from a consumer protection standpoint, if we're to go forward with this exception, very tight rules will have to be adopted defining when it's applicable. The assurance of supervision, and a very limited duration of the time of such practice before standard membership rules, should apply.

We've had enough trouble with non-lawyers practicing law, as our State Bar President Karen Nobumoto has pointed out: if we adopt this exception we need to make sure the indigent we're trying to serve don't get shoddy representation.

The third exception is defined as a "safe harbor exception" for lawyers licensed elsewhere who come to California temporarily to provide legal services - in transactional matters, i.e. non-litigation. It's similar to the pro hac vice "safe harbor" our courts provide to litigators from out of state. Given the extensive cross-boundary work that goes on today, an exception of this sort does represent what the committee described as the "modern realities of legitimate legal practice." The devil here will be in the details, i.e., the drafting of regulations relating to duration, frequency and the scope of permissible activity.

A final recommendation is one that permits an out-of-state attorney to perform non-litigation tasks in California for cases they intend to file here or that they have filed and are pending elsewhere. Once filed here, pro hac vice rules apply.

In all these situations, it would be desirable to assume that, even when registration is not required, those who use the "safe harbors" subject themselves to State Bar discipline.

The committee's proposed changes, if implemented, work gradual and worthwhile change, and to the extent they can, should be coupled with encouragement that other states grant similar registration and "safe harbor" requirements for California lawyers working in their jurisdictions.

John K. Van de Kamp represents Los Angeles on the State Bar Board of Governors. He is the former attorney general of California.