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global nature of many businesses, the needs of
clients and the practices of their lawyers no longer stop at state
lines, the report said.
Corporations and large business entities in
particular may be hindered by the requirement that their in-house
counsel belong to the California bar in order to practice in the
state. In-house counsel may thus be forced to move to the state or
travel here often in order to meet the company's legal needs, a firm
might not be able to choose the right lawyer for a particular task,
and business costs may increase, the panel suggested.
As a result, it concluded a change for in-house
counsel is warranted and it also recommended that restrictions be
eased for out-of-state public interest lawyers to provide legal
services to indigent clients in California for a limited time period.
The task force recommended easing restrictions for:
In-house counsel providing out-of-court services exclusively for a
single, full-time business entity, such as a corporation or
partnership, that does not provide legal services to third parties;
and
Public interest lawyers providing legal services to indigent clients
on an interim basis before taking the California bar exam, under the
supervision of an experienced member of the State Bar, through a
qualified legal services provider. This change could help meet the
pressing legal needs of the indigent, the panel said.
The task force suggested two ways those groups
could practice in the state without taking the bar exam:
Through a registration process that would be similar to admission to
the bar but without having to take the bar exam. Registration would
permit an attorney licensed and in good standing in another
jurisdiction to practice in California on an ongoing basis.
Changing the definition of the unauthorized practice of law to allow
out-of-state lawyers to undertake a specific task without violating
California law. This "safe harbor" approach would apply when an
attorney's involvement in California is too brief or infrequent to
warrant the time and expense that registration would require.
The change in the unauthorized practice
definition also would permit two other groups of out-of-state lawyers
to undertake certain tasks in California: transactional and other
non-litigating attorneys providing legal services on a temporary or
occasional basis, and litigating lawyers providing legal services in
California in anticipation of filing a lawsuit in the state or as part
of litigation pending in another jurisdiction.
The UPL recommendation, which Marshall said
"reflects what lawyers do as a matter of course today," is
contingent on crafting narrow and clearly defined exceptions to the
general prohibition on out-of-state lawyers practicing here.
The panel rejected reciprocity with other states
out of concern that it would create difficulties, including how to
treat states that would extend reciprocity only to students who
graduate from ABA-approved law schools. Many California attorneys are
licensed without attending such schools. Nonetheless, the panel said
the possibility of reciprocity should not be permanently foreclosed.
Comity, a system which would permit attorneys
licensed in other states to practice in California even without a
reciprocal privilege, also was nixed, because the panel felt it would
mean the requirements to practice in California would in effect be the
lowest standard adopted in any other state.
Marshall said the reciprocity issue was the most
difficult the panel addressed because California is the only state
with law schools not accredited by the ABA. Thousands of California
lawyers are graduates of those schools.
"We were advised that no other states would be
willing to accept graduates of non-ABA accredited schools," he said.
The panel also decided that experienced lawyers
from out of state should not be permitted to practice in California
simply because of their long years of practice. And it rejected any
change to the scope of permissible practice by government lawyers.
Also left unresolved were questions of how to
discipline out-of-state practitioners, an exact definition of the
entity for whom in-house counsel may practice by registration and any
rules spelling out how public interest lawyers from out of state would
be supervised.
The task force was appointed after the passage of
legislation, authored by Sen. Bill Morrow, R-Carlsbad, to require a
study of reciprocity and comity. There are already some exceptions to
the prohibition of practice by out-of-state lawyers, including consent
by a trial judge, as counsel pro hac vice ("for this occasion"),
as a legal representative in arbitration proceedings, as a foreign
legal consultant and as military counsel.
The recommendations will be reviewed by the
Supreme Court, and the task force recommended that the court appoint a
committee to resolve the many issues the report raises and that it
forward the report to the legislature. Any changes should be reviewed
after five years, the task force said.
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