 Since
long before my term on the board of governors, the State Bar has wrestled with the
unauthorized practice of law (“UPL”). Now called “multi-jurisdictional
practice,” the issue surfaced recently as the California Supreme Court, at the
prompting of the legislature, impaneled an 18-person task force to study, among other
issues, whether attorneys licensed to practice in other states may practice law in
California without taking the Calif-ornia bar exam.
The work of the advisory task force on multi-jurisdictional practice
is important to California in-house counsel, who both provide and purchase legal services.
It is just as important to every California lawyer who has clients who live or do business
outside of California.
In 1998, the California Supreme Court decided the Birbrower case.
That case held that New York lawyers engaged in the unauthorized practice of law (and
committed a misdemeanor) by performing legal work for a California-based client. Birbrower
was probably a correct reading of existing law, but the court created a legal and ethical
dilemma for all California lawyers who have a multi-state practice.
The initial reaction focused on the ability of non-California
attorneys, in-house and outside counsel, to render any legal advice — transactional
or litigation, oral or written, state or federal law — in California to
California-based clients. Under Birbrower, a New York lawyer who attends a negotiation in
Sacramento for a California client (and probably a non-California client as well), faxes
or e-mails an opinion letter or form to a California-based client, or even gives oral
advice to a California client by phone, is probably engaging in the unauthorized practice
of law. His client, who might be a licensed California in-house counsel, risks aiding and
abetting the commission of a misdemeanor.
Most California lawyers would not spend much time thinking about the
dilemma of these non- California lawyers if Birbrower did not have a broader implication.
If other states follow the Birbrower rule (and Oregon already has), the South Lake Tahoe
attorney who responds to an e- mail from a Reno business client commits UPL in Nevada. The
Los Angeles estate planner who flies to Santa Fe to meet with a client violates New Mexico
law. The San Francisco employment or environmental expert who builds up a national
practice is committing UPL in other states every time she provides legal services to her
clients.
In a post-Birbrower world, more California lawyers may be committing
UPL (and criminal violations) than ever before. Faced with the realities of today’s
mobile multi-state, international practice, the court offered no practical guidance and
left the field to the legislature, which passed SB 1782. In its original form, SB 1782
allowed attorneys who have already passed one U.S. bar examination, practiced for a
minimum of three years and then passed the California moral character investigation, to be
admitted to practice in California without taking the California bar examination.
After the intervention of Chief Justice Ronald George, the
legislature agreed to refer this and other admissions issues for study. The legislation
expressly requires the task force to make recommendations on how to deal with the UPL
issue. We’re past the time for just admiring this issue. Now is the time for action
if the legislature is not to step in again.
Clearly, SB 1782 provides the opportunity for a significant and, many
would suggest, a radical step forward for the California legal community. Today’s
legal admission standards were adopted and based on legal traditions, jurisdictional
standards and the limited mobility which characterized the 19th century, not the 21st.
Every other major profession — including doctors, accountants, architects and
engineers — has recognized this cyberworld reality. Only the legal profession has
resisted change and on grounds that are no longer relevant, applicable or even persuasive.
We should be clear what this debate is not about. First, we’re
not talking about loosening the legal bars against people who are not licensed to practice
law. Rather, we’re talking about lawyers who have passed a bar examination, are in
good standing in another state and have years of actual practice.
Second, this is not a debate about exempting any lawyer who lives in
California from the reach of the State Bar’s discipline system. The issue before the
task force is how best to establish a system for California which will permit lawyers duly
admitted and qualified in another state, including in-house counsel, to serve California
clients in a particular matter or in a series of matters related to the lawyer’s
expertise and practice. In addressing this issue, the task force will be establishing
rules for other states dealing with California lawyers who want to serve clients outside
of California.
The current system doesn’t work. The task force has to face up
to the reality of today’s practice with creative and innovative thinking.
This is an opportunity to influence the future of our profession. For
more information, log on to the American Corporate Counsel Association’s website at www.acca.com/advocacy/mjp to find resource
material and an analysis of multi-jurisdictional practice from the perspective of in-house
counsel.
 A former member of the State
Bar Board of Governors, John McGuckin is now a member of the board of directors and chair
of the Advocacy Committee of the American Cor-porate Counsel Association. He is executive
vice president, general counsel and secretary of Union Bank of California.
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