|In my last presidents column, I noted the importance of foresight, which
is recognizing where we can and should be in the future, and then working in the present
to obtain the ideal.
Foresight involves identifying inevitable
historical trends, which is difficult because some movements which appear to be trends
turn out to be temporary swings of a pendulum which eventually swings back the other way.
Will digital photography replace film?
Will the movement towards tolerance in the late 20th century sweep
into broad new areas of acceptance?
Do events in Quebec and Russia show a trend for or against large
Does NAFTA reflect an inevitable trend toward international free
markets now futilely contested in Seat-tle?
Are the few remaining communist states in the world resisting an
inevitable trend against them?
And what about regulatory agencies such as the State Bar of
Some might argue there is a trend against regulation and in favor of
free market solutions. Nobel Prize Laureate Milton Friedman, the high priest of the free
market gospel, preaches that lawyers reap monopolistic profits through a system of
occupational licensure protecting lawyers from competition.
Bar associations do determine who may compete with lawyers. Such
restrictions on the freedom to choose a profession are generally frowned on by
fundamentalist free marketeers.
Of course, the congregation reading this column understands that
lawyers are different, and that clients need protection from the unauthorized and improper
practice of law. It is this principle, and the need to maintain and improve our system of
justice, that supports the existence of mandatory bar associations.
But still, future trends and changing markets and technologies
require reforms to aspects of our regulatory system. One such aspect involves
multijurisdictional practice. The Final Report of the Commission on the Future of the
Legal Profession and the State Bar of California stated the following at pages 71-72:
Although the concept of limiting admission to the practice of
law is strongly rooted in our society, there are growing concerns about the extent of such
limitations. For example, critics of the legal profession frequently posit that one of the
primary purposes of a state bar is to limit admission to practice law and preserve and
protect the economic interests of current bar members. Others recognize the widespread
public perception of inadequate access to our justice system. These sentiments are more
often than not challenging the restrictions placed on admission to the bar . . . .
The spread of information technologies and transportation
advances have compressed the country and made possible easy, economical, and immediate
communications to and from virtually any location. The parochial boundaries dividing
states are becoming impediments to work efficiencies and the flow of commerce. Corporate
in-house counsel, exclusively federal court practitioners, lawyers at mega-firms with
branch offices worldwide, and others who travel constantly to serve their clients, have
long been seeking a relaxation of what they view as unnecessary barriers to enable them to
practice from state to state.
On an international level, multilateral trade agreements, such
as NAFTA, the European Union, and the GATT, are breaking down services and trade
restrictions from nation to nation. Persistent adherence to state requirements for
admission will thwart progress and economic opportunity in the increasingly interdependent
Recognizing these factors, the Futures Commis-sion recommended that
California reform its system by granting reciprocity. Some say that lawyers are the
lubricants in the machinery of industry. If so, the innumerable lawyer licensing bodies in
our country and the world put sand in the gear box of industry.
Now is the time for reciprocity. As noted by the Futures Commission,
the problem is particularly difficult for lawyers who move around in their legal careers
and give advice across parochial boundaries. This describes many in-house
counsel in California.
A solution is needed which will reflect the realities of our age
without injury to California clients. An appropriate solution could provide numerous
benefits, including increasing the attractiveness of California for businesses needing to
move lawyers into the state. One creative suggestion I recently received would be to grant
reciprocity to attorneys performing a sufficient number of supervised pro bono hours in
An effective solution must assure that the overall quality of legal
service in California does not decline. Our present system of denying admission to an
experienced, qualified Stanford Law School graduate licensed in New York and Illinois is
not protecting the quality of legal service in our state, and does far more harm than
We must recognize future trends and reform our system as recommended
by the Futures Commission. To explore the various alternatives and make a proposal, I am
appointing a Multijurisdictional Practice Task Force.
Ideas and comments are welcome, particularly from those affected
most, such as in-house counsel.