repeatedly broke the law and was disbarred from his Inn of the Court
in England. Gandhi's Legal Ethics, Leubsdorf, 51 Rutgers L. Rev.
923. He supported "transformative legal ethics," which summons
lawyers to join with their clients to change the law for the better.
Our clients believe we live in a global economy
and that NAFTA and GATT encourage the free flow of goods and services
beyond state or national borders. Once upon a time, lawyers
didn't believe that they could be engaged in
the "unauthorized practice of law." Birbrower v. Superior Court
(1998) 17 Cal. 4th 119, summarily extinguished that bedtime story,
when it held that two New York lawyers who met with a client in
California were unlawfully practicing law.
California often sets the pace for the nation,
and several out-of-state cases since then have echoed Birbrower
theories, impairing clients' rights to the counsel of their choice.
These out-of-state cases have created some
bizarre results. For example, a Virginia and D.C. attorney was
disbarred from Maryland (although he was not admitted in Maryland),
because he met with clients in Maryland and shared an office with a
Maryland lawyer. Attorney Grievance Commission of Maryland v. Johnson
(2000) 363 Md. 598. A Connecticut and Massachusetts lawyer, who was a
"managing" partner in a Pennsylvania law firm, was enjoined from
practicing law or listing himself as an attorney with any firm in
Pennsylvania. A Utah ethics opinion prohibits a Utah lawyer from using
letterhead indicating that she is admitted in another state where she
was inactive, unless her inactive status is also stated.
These cases are not from Ripley's or the
twilight zone, but from the post-Birbrower era of legal practice.
Multjurisdictional practice is a critical issue. We must find a
solution that allows lawyers to cross state/ national borders.
Arguably, everyone is doing it. We use e-mail, faxes and telephones to
contact our clients out of state. If we fail to give them advice, we
could face liability for negligence. Yet, by giving advice, we could
be found to have engaged in the unauthorized practice of law.
Many of the proposed solutions to MJP create a
"safe harbor" for in-house counsel. Others consider that to be a
"small marina" when compared to the vast number of lawyers
"virtually practicing law." We need to legitimize what we are
already doing, because what lawyers do is . . . practice law.
Gandhi's Indian clients chose him to represent
their interests in South Africa. He wasn't disbarred for the
unauthorized practice of law, but for civil disobedience. In criminal
cases, "counsel of choice" is a hallowed right that is
constitutionally guaranteed. Gandhi was a mere human being. Some of
his ideas, such as the renunciation of sex and his Spartan diet, were
too far out. After all, we California lawyers could never live without
. . . Starbucks. And, for those who may suggest a conflict, the author
has not received even the tiniest mocha . . . not to mention a "venti."
Karpman, a legal ethics expert, defends lawyers at the State Bar and
advises firms regarding conflicts and risk management. She can be
reached at 310/887-3900 or karpethics.com.