California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MARCH 2002
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - March 2002
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News / News Briefs
Midyear meeting will focus on fairness
E-briefs offer bar updates
Three strikes supporter has a change of heart, now wants the law restricted
ABA seeks nominations for three awards
Rule change proposed to protect government whistleblowers
More pamphlets added, translated
Innovation garners awards for 11 courts
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Trials Digest
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Public Comment
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Opinion
From the President - New era of bar-conference cooperation
Conference of Delegates: A valuable ally
PG&E's plan: A power play
Letters to the Editor
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You Need to Know
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Discipline
Ethics Byte - Twilight zone cases can make practice tricky
Former deputy DA, convicted of grand theft, is suspended
Attorney Discipline
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MCLE Self-Study
At tax time, modify debt with caution
Self-Assessment Test
MCLE Calendar of Events

ETHICS BYTE

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Twilight zone cases can make practice tricky

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By DIANE KARPMAN
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Diane KarpmanGandhi 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."

Diane 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.