jurisdictional practices (MJPs). “The alarm
that was set off is that as we enter the 21st century, our unauthorized practice of law
and our geographic limitations are antiquated,” says Bob Hawley, the bar’s
deputy executive director.
“The issue of multijurisdictional practice is upon us,”
says State Bar President Andrew Guilford. “Birbrower interpreted the statute about
the practice of law correctly, but the effect is that people are now practicing in
California without a license.”
Guilford has long been a proponent of reciprocity, a practice which
would allow attorneys from other states to practice in California without taking the bar
exam, if the other state extends the same courtesy. The bar’s so-called Futures
Commission recommended in 1995 that California adopt reciprocity in admissions,
recognizing that law is national in character and practice, and attorneys should be able
to work in different jurisdictions in pursuit of their practices. The same year, the
Conference of Delegates called for an easing of the admissions requirements for
out-of-staters as long as certain conditions are met.
The American Corporate Counsel Association (ACCA), representing some
11,300 members working in almost 5,000 corporations, favors uniform standards for
admission administered by the various states. In-house counsel frequently have practices
that cross jurisdictional lines and therefore confront the issues of bar admission,
license to practice and the unauthorized practice of law on a regular basis.
On the legislative front, state Sen. Bill Morrow, R-Oceanside,
introduced a measure earlier this year to permit comity in California, exempting from the
bar exam requirement an attorney who has been an active lawyer in another state for three
years. The bill has been amended to call simply for a study of comity and is making its
way through the legislature.
And just last month, Martha Barnett, new president of the American
Bar Association, named a special commission to study multijurisdictional practices, which
she called the legal profession’s “issue du jour.” MJPs raise questions
about ethics, disciplinary rules, bar admission standards and the protection of the
public, she said, adding that she believes it’s time to look at the rules governing
such practices.
 Although
the United States has 51 separate law licensing authorities, supporters of reciprocity
argue that technology, ease of travel and changing markets have made state boundaries seem
like parochial impediments to commerce and work efficiencies. Add national megafirms,
federal practitioners and inhouse counsel for large corporations to the mix, they say, and
a uniform standard for admission becomes not only attractive but almost necessary.
Each state is allowed under our federal system to establish its own
standards for admission. About a quarter of those states also offer some type of admission
without examination to out-of-state lawyers, either through reciprocity or comity. The
rules usually require a minimum number of years of practice, such as five of the last
seven years, as well as graduation from an ABA-approved law school. Some states allow
inhouse counsel to handle transactional matters. Out-of-state lawyers can be admitted in
California pro hac vice for the limited purpose of a single matter and are usually
required to associate with local counsel.
Most other states also have only one or two law schools, and offer
fairly limited access to the bar exam because most require candidates to have graduated
from an ABA-approved law school. In California, on the other hand, 60-plus law schools
turn out prospective attorneys. While it offers the greatest access to its bar exam of any
state, California also sets the standard for admission quite high to make sure that only
qualified persons are licensed to practice.
Public protection and that high admission standard are the principal
reasons reciprocity and comity have so far been rejected in California, says Jerome Braun,
the State Bar’s director of admissions. “Public protection is our paramount
objective,” Braun says. “The question we need to ask is whether
multijurisdictional practices advance or detract from public protection.”
As far as Braun and the Committee of Bar Examiners are concerned,
California’s bar examination provides reasonable assurances that attorneys who
practice here have met a very high standard. They believe if an out-of-state lawyer who
has not met the same standard is permitted to work here, the public may become vulnerable.
There are other issues, as well. Executive Director Judy Johnson said
policymakers should ask what public interest is served by reciprocity and how it affects
public access to the legal system. “Why do we need to invite lawyers from other
states to come here, especially if they haven’t passed our bar exam,” she asked.
But Guilford believes that California’s rules, by denying
admission to a qualified, experienced graduate of a topnotch law school who practices in
another state, do more harm than good and do not protect the quality of legal service in
California. He also points to estimates that “significant” numbers of inhouse
counsel working in California are not licensed here. “What do we do?” he asks
rhetorically. “Prosecute inhouse lawyers?”
Technology and geography raise a vast array of other issues and
ethical questions. Can a Chicago-based attorney advise a client living in Illinois about
California law? Who regulates an online service based in another state but used by
California residents? What about a New York lawyer who sends a fax to California
containing a clause about California law?
Realistically, the California bar’s hands are tied, because it
has no authority to regulate out-of-state attorneys who practice here because they are not
members of the State Bar. Guilford believes with reciprocity, those out-of-state lawyers
could be governed in California. “We can ignore them or we can get them on board and
regulate them,” he says. |
