ABA Proposes Rule Changes to Aid Multijurisdictional Practice
Jesyca Westbrook, Litigation News Associate Editor – November 21, 2011

The ABA Commission on Ethics 20/20 is updating the Model Rules of Professional Responsibility to help attorneys moving in and out of jurisdictions. ABA Model Rule of Professional Conduct Rule 5.5 (which has remained unchanged since 2002) will be revised to allow attorneys admitted in at least one state to practice in a new jurisdiction while awaiting full admission by either Admission by Motion or bar exam passage.

Working While Waiting
The commission is adding Rule 5.5(d)(3) to allow licensed attorneys, during a period of no more than 365 days, to provide legal services while working to meet the admissions requirements for a new jurisdiction. The proposed rules take into account new technologies, cross-border practice issues, and differences in rules across jurisdictions.

Although the purpose of proposed amendments is to allow easier movement between jurisdictions, the commission has also included safeguards against potential attorney misconduct. For instance, attorneys seeking admission to another jurisdiction must actively participate in, and share responsibility for, the representation of the client with another attorney during the gap period from application to admission. Further, the attorney must be a member in good standing in at least one other jurisdiction.

New Rule Largely Eliminates Potential Need to Suspend Practice
Currently after an attorney enters a new jurisdiction, he or she may face a tough balancing act until admitted to practice in the jurisdiction. In some jurisdictions, the attorney cannot perform any duties higher than those a paralegal could perform, and the lawyer cannot engage in any legal work unless it is related to prior cases in the jurisdiction. The intent of the updates is to change this circumstance.

“Under the old rule, a lawyer moving to a different jurisdiction would potentially have to suspend his or her legal practice entirely while awaiting approval of their request for admission,” says John C. Martin, Chicago, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. “Here, the commission makes good points in support of the changes [including that] state bar exams rarely test local law.”

Martin notes that local rules and regulations are accessible with LEXIS and Westlaw, and many courts post their rules on the Internet. “It may not be very hard for an attorney to meet the ethical requirements of competence using these resources,” he says.

 “Previously, the rule prevented a sensible use of attorney resources,” says Brian F. Toohey, Cleveland, cochair of the Section of Litigation’s Multijurisdictional Practice Subcommittee of the Ethics and Professionalism Committee. “The proposed rule adequately addresses the current limitations of a mobile lawyer and presents a reasonable time period for the attorney to gain admission and also subjects the attorney to supervision by an attorney” licensed in the new jurisdiction.

Toohey has witnessed associates in limbo in his multijurisdictional practice. The gap period currently limits the workload of lateral associates waiting to gain admission. “The proposed changes will be helpful especially for large firms,” he says. “It will help lawyers to continue to act as lawyers” while transitioning to licensed status in a new jurisdiction.

Admission by Motion Updates
The commission also submitted a draft proposal with changes to the Model Rule for Admission by Motion, to allow attorneys to seek admission in a jurisdiction earlier. The proposal seeks to streamline the process for gaining admission by motion and helps newer members of the bar move their legal practice to a new jurisdiction without taking that state’s bar exam.

The new rule allows a licensed attorney who has been engaged in the practice of law in at least one state for three of the preceding seven years to apply for admission by motion. This shortens the current period by two years for continuous active practice, thus making thousands of attorneys to apply that would not otherwise have enough years in practice and experience eligible to move to a new jurisdiction without retaking the bar exam.

The commission notes that about 65,000 attorneys have gained admission by motion in the past 10 years. So far, 40 jurisdictions have adopted provisions allowing for Admission by Motion. Five jurisdictions (ID, ME, MI, UT, WI), have reduced their licensure period to three years. In addition, North Carolina currently requires four out of six years and North Dakota requires four out of five years.

Many states have additional provisions for attorneys hoping to gain admission by motion including a lawyer’s examination, or reciprocity requirement. The commission plans to ask the ABA for a resolution urging jurisdictions that have not adopted the Rule to do so, and not to impose additional restrictions. Whether states that have historically granted no exceptions to admission by motion will change in response remains an open question.

Suggestions and Comments

“The ability to facilitate mobility is the ultimate goal of the proposed rules,” says Loren Kieve, San Francisco, cochair of the Section’s Attorney Client Privilege Task Force. “I would encourage practitioners to look at the comments and proposal closely and add comments about any issues they may have with the provisions.”
Section members are encouraged to submit comments to facilitate discussion on ways to create effective cross-border practice by November 30, 2011, to Senior Research Paralegal Natalia Vera, natalia.vera@americanbar.org. These comments may be posted to the commission's website.

Keywords: litigation, Model Rule 5.5, multijurisdictional practice, change jurisdiction.

 
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