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the bar exam. In a preliminary report issued at
the end of July, the 18-member task force agreed it was time to shake
up the status quo, but settled on a much more cautionary approach.
The report notes that of the options considered,
"none was ideal," suggesting the panel members had difficulty
reaching agreement.
"We did reach consensus on two points: We
didn't want to maintain the status quo, and we didn't want total
comity," said task force chairman Raymond Marshall, a former State
Bar president.
The panel recommends a system of registration
allowing in-house corporate counsel to perform legal services out of
court and public-interest attorneys to serve the indigent on an
interim basis under supervision of a State Bar member. It also
recommends providing a "safe harbor" from the traditional
definition of unauthorized practice of law so transactional and
litigating lawyers can perform limited services, such as taking
depositions.
"The idea is, if you're going to practice
here on a regular basis, you should in fact take the bar exam,"
Marshall said. "But if you're here just on a limited basis, it
doesn't make sense to try to register (as a member)."
But the panel rejected as too sticky the ideas of
inviting all lawyers into the Golden State, which it said would create
problems weeding out "unscrupulous and incompetent attorneys," or
of seeking the participation of other states in creating a national
bar, which could undermine individual states' discretion to
determine who can practice.
The task force is seeking public comment on the
study through the end of September.
"(The report) is a step in the right direction,
by virtue that it is a step, but it's not quite what I was hoping
for," Morrow said. "I'm a little bit disappointed in terms of
it's very clear they pretty much flat-out reject the concept of
reciprocity . . . I think it should be done now."
Morrow said he favors a system of "sister
state" agreements that would allow lawyers to move freely among
participating jurisdictions.
Marshall said some western states, including
Washington, Oregon and Nevada, currently are trying to come up with
such a compact but have had difficulty reaching agreement on some
requirements.
Of particular concern for California, he said,
would be ensuring multi-state access for attorneys with J.D.s from unaccredited law schools, since many states require
accreditation by the American Bar Association.
"As long as that's the case, it's hard to come up with a proposal that wouldn't treat
our California attorneys who have passed the bar but did not attend
accredited schools as second-class attorneys," Marshall said. "We
found that problematic. The task force wanted to make sure all our
attorneys are treated fairly and equally."
Section 6125 of the California Rules of Court
states, "No person shall practice law in California unless the
person is an active member of the State Bar."
Despite the prohibition, it already is common
practice for out-of-state attorneys to perform legal tasks here,
Marshall said.
Private attorneys, especially those working for
firms with offices in several states, legal experts and in-house
counsel are among those who give advice, assist in transactions and
interview witnesses, all of which constitute the unauthorized practice
of law under current rules. Morrow acknowledged he could be counted
among those who have practiced outside his own state's borders.
"I can't recall the number of times as a
California attorney I went to many, many states and took depositions
and never thought anything of it," Morrow said. "Oh my God, was I
engaging in the unauthorized practice of law? Don't tell anybody."
The report acknowledges a need to accommodate
attorneys who are increasingly mobile and often serve interests that
aren't limited to just one state. It also notes that current
restrictions can block consumers from hiring the attorney of their
choice.
"The
reality of today is that the needs of many clients do not stop at
state borders, and neither does the legal practice of the attorneys
who represent them," the report said.
But the proposed changes give the most leeway to
in-house counsel, who the task force decided were most hindered in
that business interests frequently reach further than their home
states, are less likely to harm the public since they do not serve
individual clients, and are easier to manage because they would be
under scrutiny of their employer.
Marshall said the relaxed rules, while a
less-radical change than those suggested by Morrow, could provide the
litmus test to determine whether California could further ease its
restrictions in the future.
"This will give the law community, clients and
enforcement officials a greater sense of what is acceptable, to be
able to deal with and address the more pervasive problems," Marshall
said.
"And we hope it will also spark dialogue with
other states as to whether there should be some type of national
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