1 P R O C E E D I N G S
2 of the
3 AMERICAN BAR ASSOCIATION COMMISSION ON
4 MULTIJURISDICTIONAL PRACTICE 2000-2001
5 FRIDAY, APRIL 27, 2001
6 UNIVERSITY OF MISSOURI - KANSAS CITY
7 KANSAS CITY, MISSOURI
8 ________
9
10 The Commission on Multijurisdictional
11 Practice 2000-2001 of the American Bar Association,
12 meeting at the University of Missouri in Kansas City, on
13 April 27, 2001, was called to order at 1:30 p.m. with Mr.
14 Anthony Jenkins presiding. The other members of the
15 Commission in attendance are:
16 Mr. Peter D. Ehrenhaft Mr. Larry Ramirez
17 Other individuals in attendance are:
18 Dean Powell Ms. Ginger Lamb
19 Ms. Jeanne P. Gray Mr. Dick Woods
20 Mr. John A. Holtaway Mr. Joe Whisler
21 Ms. Carol Needham Judge Waxse
22
23
24
25
1 MR. JENKINS: Good afternoon, everyone. My
2 name is Tony Jenkins. I am in private practice in
3 Detroit. With me on this far end of the table is
4 Larry Ramirez and Peter Ehrenhaft. We are members of
5 the Commission on Multijurisdictional Practice. This
6 is the fifth of a series of workshops -- not
7 workshops, but hearings and roundtable discussions
8 that the Commission has been hosting across the
9 country, focusing on the concept of
10 multijurisdictional practice.
11 We welcome you all and although I know there
12 is probably not a representative from the law school
13 here, I do on the record want to say thanks for their
14 accommodations and hospitality. We appreciate it
15 very much.
16 Before we delve into things, since we have
17 such a small group, I propose that we go around the
18 table quickly and give everyone a chance to say hello
19 and introduce themselves and then we can move into
20 the substance of what we want to cover today.
21 Larry, do you want to kick it off?
22 MR. RAMIREZ: Sure. I am Larry Ramirez. As
23 Tony said, I am a member of the Commission. I am
24 from Las Cruces, New Mexico, where I am a sole
25 practitioner. I am a past chair of a general
1 practice solo small firm section of the ABA, as well
2 as past chair of the District of the Supreme Court of
3 New Mexico and I have been active in this discussion,
4 as well as active somewhat in the MDP discussion
5 before and that is one of the reasons I am here
6 because I can't keep my mouth shut. But I am glad to
7 be here.
8 MR. JENKINS: Welcome.
9 MR. HOLTAWAY: I am John Holtaway. I work
10 for the American Bar Association; specifically, the
11 Center for Professional Responsibility. I staff both
12 the Commission on Multijurisdictional Practice and
13 the standing committee on client protection.
14 MS. GRAY: My name is Jeanne Gray. I am the
15 director of the Center for Professional
16 Responsibility at the American Bar Association and we
17 are the unit in the ABA that has brought you the
18 models of professional conduct, that brought you MDP,
19 that has brought you MJP and a host of other issues
20 and the challenge is continuing. I am delighted to
21 be here and I am very grateful that all of you have
22 come to have a dialogue with us today.
23 MS. NEEDHAM: My name is Carol Needham. I
24 started my interest in this area when I was in
25 practice. I now teach at St. Louis University Law
1 School but I was practicing in Los Angeles with a 700
2 lawyer firm that has offices all over the world. It
3 bothered me when I was in Arizona, where I was not
4 licensed, and various other states, the idea that
5 some guy who was licensed last year to be an attorney
6 in some other area is practicing and not focused at
7 all in securities work was the guy who was making
8 sure that the advise was correct. The logic of it
9 escaped me and that is why, when I went into
10 teaching, I was looking for areas of research,
11 because the inconsistencies bothered me; but I am
12 delighted to be here today.
13 MR. WOODS: My name is Dick Woods. I am
14 General Counsel and Senior Vice President for the
15 Federal Reserve Bank of Kansas City, so I am
16 representing, to some degree, corporate attorneys.
17 Tony, I went to law school up in your state,
18 so I was rooting for Redwings. My interest,
19 obviously, we have -- the Federal Reserve Bank is not
20 a governmental agency. I know there is some popular
21 misconception as to that, but we are not. Each
22 reserve bank, with the exception of one, has branches
23 in other cities. For example, the Kansas City fed
24 has a branch in Denver, Oklahoma City, and Omaha. Of
25 necessity, either I, or other members of the legal
1 department, will travel to those branch offices to
2 advise management on legal issues. We also
3 participate in administrative hearings on behalf of
4 the bank there and while we generally hire
5 co-counsel, local counsel to handle litigation
6 matters, we nevertheless are actively involved in
7 that. So the issues involving multijurisdictional
8 practice are very much of interest to us.
9 MS. LAMB: I am Ginger Lamb. I am from the
10 Daily Record in Kansas City and I am just observing
11 to see what happens today at the hearing.
12 JUDGE WAXSE: I am Dave Waxse. I am a
13 federal magistrate in the District of Kansas, but my
14 interest in this is a result of I am a past president
15 of the Kansas Bar and currently one of the two Kansas
16 Bar delegates to the ABA house of delegates.
17 Back when I was president, we were working
18 on the issue in Kansas of trying to get some kind of
19 reciprocity because Kansas, for about the last 20
20 years, has required everyone who comes in to take the
21 bar exam. It has gotten kind of conflicted because
22 the federal courts, on the other hand, decided that
23 was too limiting. So we now allow Missouri
24 attorneys, or other state attorneys, to practice in
25 federal court simply by registering, as opposed to
1 taking the bar, even though generally we require the
2 attorneys that practice in federal court to be
3 licensed in the State of Kansas.
4 MR. WHISLER: I am Joe Whisler. I am a
5 member of the Board of Governors of the Missouri Bar
6 and like Carol and Dick, I am on a special committee
7 the bar has appointed to follow this issue. I was
8 also on the committee last year for MDP and went to
9 the hearing in Dallas and it was a little better
10 attended than this one. So I take it this hasn't
11 really hit everybody's radar screens yet.
12 We want to be involved and are interested in
13 what goes on. My practice is I am hardly ever in
14 Kansas City doing aviation law and departmental law.
15 As the judge said, I am good enough to practice on
16 5th Street in Kansas but not good enough to practice
17 on Minnesota, apparently, for some reason. And that
18 is kind of a long-running issue with the Missouri
19 side. In this neck of the woods, it is particularly
20 of interest to a practitioner.
21 MR. EHRENHAFT: My name is Peter Ehrenhaft
22 and I come to this task via Tokyo in the following
23 way. I am a lawyer in international practice and I
24 have been active in the international practice
25 section of the ABA for about 25 years.
1 One of the most challenging aspects of our
2 work was attempting to open the Japanese market for
3 American lawyers and I was the chair of the task
4 force, working with the Japanese from the early
5 '80's, to try and enable Americans to practice in
6 Tokyo. We have kept up with this campaign because it
7 requires an unrelenting effort to move inch by inch
8 to indeed make the Japanese market available to the
9 many American lawyers who believe that it is a good
10 place to practice and to be available to Japanese
11 clients that would like to have American lawyers
12 available for consultation in Japan.
13 That particular role has led to various
14 other assignments related to the international
15 practice of lawyers. That is what I do as an
16 international transactions lawyer. And although I am
17 admitted in New York and in the District of Columbia,
18 I can probably correctly say that as of today, I have
19 no clients in either of those two jurisdictions. And
20 though my office is in the District of Columbia, I
21 almost never go there.
22 Most of my activities are in Poland and
23 Thailand and other countries and other states. And
24 the notion that the Bar is regulated by rules that it
25 flouts daily, as I do, and so many of my colleagues
1 in the kind of work that I do, is very unsettling to
2 me. And it seems to me that if we try and tell other
3 people how they should behave, that we aught to do at
4 least the same. So I have a real interest in seeing
5 whether we can reform the rules of the profession and
6 to determine what impact that would have on the way
7 that the American legal system operates.
8 I think its has correctly been characterized
9 as a wonderful system in a variety of very important
10 ways and we shouldn't belittle that, but how much of
11 that quality depends upon some of these
12 jurisdictional lines of state-by-state regulation is
13 a question I am not sure there is a direct link. And
14 I would hope that our hearings and the information we
15 receive from those who come and discuss this with our
16 commission will shed light on this matter.
17 To follow up on a point Mr. Whisler just
18 made about the lack of attendance here, it is an
19 interesting and appropriate observation that is
20 matched by the experience that we have had in trying
21 to pole the membership of the ABA on this very issue
22 as to how many lawyers in the ABA and it has, as you
23 know, 400,000 members. How many of you have
24 activities that take you out of the state? How many
25 of you think that it is appropriate that you could
1 practice in another state? How many of you have
2 partners that come from other states? There were
3 about ten or fifteen such questions and they have
4 been printed in the ABA journal and this, that and
5 the other kind of document, attempting to get
6 somebody in our organization to respond.
7 John, do we have five hundred responses to
8 date?
9 MR. HOLTAWAY: We are up to about 250.
10 MR. EHRENHAFT: It is an incredible
11 manifestation that lawyers can't believe that this is
12 a real issue, which is something I am beginning to
13 think, that lawyers think that this is something that
14 bar officials may be very agitated about but as far
15 as the profession is concerned, it is a non-issue and
16 a couple of people are being caught not being able to
17 collect their fees in some odd situations, but just
18 to identify people who have actually experienced a
19 problem in this area is difficult.
20 Therefore, we are receiving some kind of
21 indications that you are making a problem where one
22 doesn't exist. Why talk about this? No one cares
23 and let's just keep on going and shut up. Well, to
24 me, that is not a satisfactory solution. Anyway, I
25 think it is an important fact as to which it would be
1 interesting to hear from you all.
2 You have appointed a commission to study it,
3 but of the total numbers of state bars and others in
4 the country, a very, very small number have even gone
5 that far to organize anybody to take a serious look
6 at this issue. But is this an important issue? How
7 important is it? Should we address it and how should
8 we address it? I want to hear your views.
9 MR. WOODS: Let me say that I know cases
10 that have arisen over a dispute over lawyers fees
11 once there has been a falling out. My personal view
12 with respect to the current state of affairs is that
13 it does not reflect what in practice is occurring and
14 what is occurring without substantial detriment to
15 the general public or the clients.
16 I think primarily of the focus from the
17 client in this, and I think the client should be able
18 to choose an attorney to represent the client in
19 whatever jurisdiction that the attorney may be
20 situated. In your case, you are licensed in the New
21 York Bar and Washington Bar. If someone wants to
22 retain you in the United States as opposed to
23 Thailand to handle a transactional matter, I think
24 they aught to be able to do that.
25 When you get to the litigation arena, I
1 think that is a different matter and we have the
2 traditional pro hac vice that I think has worked.
3 But I am thinking primarily from the transactional
4 standpoint and things of that nature; looking at it
5 from the point of view of a client who wants to
6 select an attorney to represent him/her or it.
7 MR. JENKINS: One of the considerations or
8 perhaps counter-arguments to that, though, is let's
9 take real estate as an example, which is what I
10 happen to do a lot of in my practice. The laws are
11 not uniform; they vary from state to state as to how
12 you do it and what you do.
13 In that regard, would there, in your mind,
14 be some potential problem or issue where an attorney
15 licensed in State A is coming into State B to handle
16 a real estate transaction even though it is a client
17 that they do business or provide services to
18 routinely in State A?
19 MR. WOODS: Let's say that Missouri is State
20 A and Kansas is State B. I know attorneys in
21 Missouri who do real estate work in Kansas and I am
22 confident that there are attorneys licensed to
23 practice only in Kansas that represent people with
24 respect to Missouri real estate transactions. That,
25 I don't find necessarily problematic.
1 One of the things that I really think is
2 that the attorney has, if for no other reasons that
3 just selfish reasons, an interest in not being guilty
4 of malpractice. So were I in private practice in
5 Missouri and I had a Kansas client that wanted me to
6 help them with real estate, I think I am sufficiently
7 competent to look up the Kansas real estate statutes.
8 I would not hold myself out as being confident with
9 respect to the Kansas local court rules.
10 If I were asked to represent somebody in the
11 State of Texas, where I never venture, I wouldn't
12 handle it. Again, my own self-interest in having the
13 client properly represented and not exposing myself
14 to malpractice would cause me not to take that case.
15 So I think in a case where you have a state line that
16 is the kind of state line situation that we face with
17 Kansas, that is one issue. I don't know whether
18 Detroit and Toledo have that kind of thing with Ohio.
19 I think it is only about 40 minutes south or
20 something of that nature. Illinois may have an issue
21 with St. Louis, that type deal, but I think when you
22 are leaping several states, I don't think that
23 broadening the ability to practice in other
24 jurisdictions has much of a fallout for the real
25 estate practice.
1 MR. EHRENHAFT: Mr. Woods, I wanted to ask
2 you, in following up on that, on a paper we received
3 from the Akron Bar Association. They said that --
4 one of the things that was cited to them in support
5 of the view that there should be liberal rulings, was
6 the directive of the European Union pursuant to which
7 lawyers in any one of the countries of the European
8 Union may practice in any of the other countries
9 after three years of climatization in the other
10 country. So the Frenchman can go to Italy and
11 Englishman can go to Germany and so on.
12 The point was made, Look, they do that
13 despite enormous differences in language, culture,
14 approach to life, and so on. If they can do it in
15 Europe, why can't we do it in the United States. And
16 the answer to the -- the Akron Bar submitted a paper
17 to us and said, Well, the Englishman knows when he
18 goes to Germany that he doesn't know enough about
19 German law; therefore, he would presumably recognize
20 his lack of competence and so one could rely on his
21 self-policing because there is such a stark
22 difference between the rules that he would recognize
23 it.
24 The danger of bringing that same kind of
25 concept into the United States is the differences
1 between Kansas and Missouri are probably very small
2 and subtle. A Kansas lawyer wouldn't know whether
3 he, in fact, didn't know enough about Missouri law.
4 Therefore, there is a greater danger in a system in
5 which the rules are not that different for allowing
6 people to cross state lines because they wouldn't
7 know about their own quote incompetence.
8 Do you think that is a respectable argument
9 or a valid one that reflects the facts?
10 MR. WOODS: I certainly think that is one
11 that needs to be considered and I have no doubt that
12 there probably is some merit to that argument, given
13 the fact there is no language barrier in this
14 country. I agree with you, to the extent somebody is
15 motivated purely by either the desire to not lose a
16 client or the desire to earn the fee that would come
17 from representing the client on the Texas real estate
18 transaction. The client, I think, potentially might
19 be at risk. I am not sure whether it would be in the
20 real estate environment. It might be in securities
21 law environment to a greater degree. I am not sure
22 that that argument has enough merit, or that rebuttal
23 has enough merit, to throw out and disregard what, in
24 fact, is the current practice throughout the country.
25 JUDGE WAXSE: If I could respond from the
1 Kansas side of this thing. It seems to me the state
2 line is really not the issue, it is competence. And
3 the same issue you have raised exists in any
4 situation where an attorney attempts to practice in
5 an area where he or she is not currently competent
6 in. We don't do anything to say that the securities
7 lawyer can't go handle a criminal case and yet we say
8 that the real estate lawyer, who may be totally
9 competent across the state line, shouldn't go do
10 that. If we would focus on competence instead of
11 these artificial rules, it would seem to me to make
12 more sense for the attorneys and the clients.
13 To follow up on something else Dick said,
14 there is not only the restraint of malpractice, but
15 there is the restraint of the ethics rules, which say
16 you shall be competent. That means in whatever you
17 are doing in that transaction. So it seems to me we
18 should be enforcing the rules that we have, which I
19 don't think we do a very good job of, and not focus
20 so much on these artificial lines.
21 MR. RAMIREZ: Following up on something
22 Mr. Woods said, he said that in the transactional
23 area, the focus should be on the client and the
24 client should be able to choose an area. Then he
25 made a distinction for litigation and pro hac vice
1 admission. Should there be different rules or
2 different processes for lawyers depending on the type
3 of work they are doing?
4 JUDGE WAXSE: I don't think so. I see, as a
5 judge, lots of situations where lawyers licensed in
6 our court don't know our rules. The license doesn't
7 have anything to do with it. It has to do with you
8 have to stay current on the rules. I think whether
9 it is litigation or real estate, before you proceed
10 in that endeavor, you have to get up to speed on the
11 rules and comply with the rules and act competently.
12 So I don't see that big a difference between
13 transactions and litigation. It is the same
14 principle.
15 MR. RAMIREZ: To follow up on that then, if
16 competence is the issue, how can we, as a profession,
17 ensure competence across the state line?
18 JUDGE WAXSE: I don't know for sure what the
19 answer is; I know what the answer is not. It is not
20 saying that you take a bar exam at some point in your
21 life and then you are competent forever in that state
22 that you took the bar exam.
23 I have told Carol this story. When we were
24 arguing this with our Kansas Supreme Court, they were
25 adamant that they weren't going to allow anybody in
17
1 Kansas unless they had taken the bar exam. I
2 suggested to the court and the Board of Governors
3 that they take a day off and take a bar exam and see
4 if we were really using that standard and were
5 competent to proceed; and they didn't want to take me
6 up on that.
7 MR. JENKINS: I can't imagine why.
8 MR. WOODS: I might just respond, if I may,
9 on the litigation. The reason I draw the distinction
10 on that -- and again, I think it depends on how well
11 the judiciary polices the admission pro hac vice --
12 but the reason I draw the distinction is whether I am
13 talking about, let's say, real estate law or probate
14 law.
15 I hate to focus solely on real estate law,
16 but I think I can find that out about another state.
17 But I won't know, or I won't be able to find out
18 perhaps as easily, when I go into the other state
19 what are the various statutes and limitations for
20 this or that cause of action. And that is the only
21 thing where I think the judge and I maybe have a
22 difference of opinion. I think there are nuances and
23 subtleties that arise in the litigation arena that
24 aren't as well known if you are not an active
25 litigator in that arena or are reading whatever
18
1 publication the court puts out or things of that
2 nature. And that is why I draw that distinction.
3 MR. RAMIREZ: But that is not saying -- do
4 we give lawyers a passport and, for example, you have
5 to go and register and get your picture taken -- and
6 there are parts of my state where I likely need a
7 passport to practice -- but how do we do this? How
8 do we make sure that Dick Woods is an o.k. lawyer and
9 he is going to do a good job in New Mexico if he
10 comes to try a case in New Mexico?
11 MR. JENKINS: I want to piggyback on your
12 question. I want to come back to the competency
13 issue, too. It sort of ties into what you are
14 asking, maybe. Should there be some effort to have a
15 uniform or universal test of competency or should it
16 be left to each state to decide what the competency
17 test is for a lawyer who wants to come in and engage
18 in certain activities? What do people think about
19 that?
20 MR. WOODS: I guess my reaction to that
21 inquiry is that it is probably worth, with all due
22 respect, not much discussion, simply because I don't
23 see the states ever being willing to go along with
24 the deal where they didn't have some significant role
25 in the licensing of the attorneys.
19
1 I think, to the extent I am old enough where
2 I didn't have to take the multistate bar, I would be
3 afraid to take it, David. But I have always assumed
4 that that is kind of the national perspective that is
5 given to an attorney through the testing process. I
6 just don't see the concept of a national test, where
7 somebody would be licensed then to practice almost
8 anywhere as being a politically practical one.
9 JUDGE WAXSE: You know, I think on the
10 litigation side, there is something we can do on
11 competency that I have started doing. I think each
12 judge has an obligation to police that. I think I
13 have now had three or four different attorneys where
14 I have simply sent the pleadings with the description
15 to the disciplinary administrator and said, It
16 doesn't appear to me this person is competent and you
17 determine, under your standards, whether they are or
18 not. And from talking to the other judges I sit
19 with, apparently that is not a norm.
20 MR. RAMIREZ: One other thing in my
21 experience with pro hac vice in the state. When I
22 got admitted, the judge made me sign a statement that
23 said, I have read your rules, I know what they are, I
24 agree to follow them and so forth just like any other
25 lawyer.
20
1 DEAN POWELL: I would say with respect to the
2 specific question, Are we looking for a national
3 solution here, that the answer is that considerations
4 of federalism probably preclude that. The individual
5 jurisdictions are going to have a strong say in who
6 is going to be able to practice within that
7 jurisdiction.
8 To the extent that we get a result that has
9 national implications, it would seem to me that it
10 follows that that result would be based on some
11 cooperative kind of arrangement. That it would
12 therefore be most helpful for the Commission at least
13 to suggest some sort of model, some basis on which
14 jurisdictions might join together and agree upon
15 appropriate standards that they then might
16 individually decide to opt into or adopt.
17 I had indicated that I wanted to speak on an
18 earlier point, though, because with respect to the
19 question of guarantee of competence, I am always
20 struck by the fact that it is very difficult to be
21 able to guarantee competence, even with the bar exam.
22 To the extent that addresses minimum
23 competency, what it really says is minimum competency
24 for the three months just before the bar exam and
25 three months just afterwards; and the rest of it we
21
1 take on faith. And while I think, historically, the
2 record is pretty good that people do tend to engage
3 in practice areas that reflect their strengths and to
4 stay away from those that reflect their weaknesses, I
5 think we certainly could be doing more.
6 One of the things that I would hope the
7 Commission would consider in connection with any
8 extension of the license might be a requirement that
9 if you are practicing outside of your jurisdiction,
10 that you at least are maintaining malpractice
11 insurance for any jurisdiction in which you are also
12 seeking to practice. This then provides perhaps not
13 a perfect satisfaction in the event something goes
14 wrong, but it at least provides an incentive to stay
15 current and protection if you don't. Protection for
16 the client, that is.
17 MR. WOODS: That is an interesting thing
18 that I hadn't thought about. I don't maintain
19 malpractice insurance, given the fact that my
20 employer is what it is. But I suspect if I were to
21 look at a malpractice policy, it would exclude
22 coverage if you are practicing outside of the
23 jurisdiction.
24 MR. EHRENHAFT: Believe me, that is not
25 true. I have that very concern in our practice and
22
1 you are permitted -- the policy that we, at least
2 have, which I think is fairly standard malpractice
3 insurance -- it covers me wherever I practice and it
4 only excludes criminal actions. And one of the
5 questions would be is it, in fact, criminal behavior
6 in some places for me to practice law? I don't know
7 if that has ever been tested, but so far as I am
8 practicing in another state, the policy would cover
9 it.
10 I just wanted to throw on the table, in part
11 to follow up on some of the thoughts that have been
12 expressed here about the sanctity of the jurisdiction
13 of lines of the United States in our federal system,
14 Yes, we do have a federal system. But we also have a
15 full faith and credit clause that is a very vital
16 glue of the federal system. And we allow Illinois
17 corporations and we require that every state
18 recognize a corporation formed under Delaware law and
19 all this internal government's procedures and so on
20 to be recognized in other jurisdictions, wherever
21 that Delaware corporation qualifies to do business.
22 We have in our everyday life something that
23 has been mentioned to our Commissioner on a number of
24 occasions, our drivers licenses. We are tested once
25 when we are 15 or 16, whether we can park or do some
23
1 little thing that a particular jurisdiction has
2 decided to make a part of the drivers license and
3 other states may say this is a ludicrous test. You
4 really need to know a lot more to be able to drive on
5 our highways. Nevertheless, that driver's license is
6 recognized by every other jurisdiction. People can
7 go in there and drive in other states. Now, when
8 they move and set up their residence, then they may
9 need to be retested.
10 I think it provides, perhaps, an
11 appropriate kind of guideline for the practice of
12 law, too. If a state in the United States had
13 decided that you are adequately competent to be
14 admitted into practice, then if you come into another
15 state, like with the driver's license, there should
16 be a presumption of competence that you can do so.
17 If you move your practice, hold yourself out to be a
18 lawyer in a jurisdiction on a full-time basis, then
19 perhaps some greater kind of procedure aught to be
20 required of registration, waivers or something like
21 that.
22 But it seems to me there are enough
23 precedences in our system, not only with regard to
24 corporations, but what other professions have done;
25 accountants, architects, engineers. There is a
24
1 mutual recognition of licensure from one state to the
2 other. They don't have this kind of process that we
3 have that makes it so difficult for lawyers to move
4 their practice or to feel confident that they are not
5 violating rules by moving their practice on a transit
6 basis from one jurisdiction to another.
7 MR. WOODS: That is essentially the active
8 proposal.
9 MR. JENKINS: I was going to say that is
10 sort of one of the models that the Commission has
11 heard about during the course of its hearings. Of
12 course, there are other models we have heard about
13 where people think there are problems with that
14 particular model.
15 DEAN POWELL: I just wanted to add a
16 footnote here. The reference was made to full faith
17 and credit. I am not sure that that is the provision
18 we are looking at. I think we are looking at the
19 privilege of immunity provision. But I only note
20 that because we are in a law school and we really
21 worry about those kinds of discussion.
22 Full faith and credit provisions would
23 generally focus on the requirements that another
24 jurisdiction accept what we have done for the
25 residents of our state; whereas, the privilege and
25
1 immunity would say that you have to treat the
2 residents of our state in the same way, affording
3 them the privileges that you would afford the
4 residents of your own state.
5 MR. EHRENHAFT: I was treating the admission
6 to the bar as an act of a state in determining the
7 competence of a person to practice and that
8 determination by the state is the one that is
9 required to be given full faith and credit.
10 DEAN POWELL: Yes, and I think full faith
11 and credit would simply say that, Yes, we in Missouri
12 will accept that you are licensed in your state. But
13 it would not require that we accept your license in
14 your state as something that we have to accept. And
15 if you are going to get there, then it would become
16 the question of whether we, in our state, have set up
17 any barriers to your becoming licensed in our state
18 that would not also be barriers to anybody becoming a
19 lawyer in our own state.
20 JUDGE WAXSE: Back on this competency issue,
21 I think there are certain things we could do. Some
22 of these we discussed when we were having our
23 discussions with the Kansas Board. One thing is we
24 supposedly had this idea of CLE having some impact on
25 competency and yet we have no requirements that the
26
1 CLE have anything to do with what your practice area
2 is. So one of the things we have talked about is
3 that maybe one method of dealing with the competence
4 issue would require that if you are coming in from
5 out of state, your CLE has to be something related to
6 the state law in the area you are practicing in.
7 Make it focused and required, as opposed to saying
8 you can take something on something unrelated to what
9 you practice.
10 But the other issue, I think we somehow have
11 this faith that a bar exam is going to have some
12 indication of competency. Every incompetent lawyer I
13 have seen passed the bar exam so I am not sure what
14 that gets us.
15 MR. RAMIREZ: I wanted to throw another
16 little glitch into the constitutional argument or
17 discussion that we are having here. I am one of
18 those lawyers that would focus on the commerce laws
19 and say how these regulations might be a restraint on
20 trade or my ability to earn a living and whether that
21 is a reasonable restraint. Like you said, the bar
22 exam, I don't know that it historically measures
23 competence. And if the goal is to protect the
24 public, does the bar exam really do that? I think
25 that is part of the debate.
27
1 MR. EHRENHAFT: Do you think that the bar
2 exam could be struck down on the grounds it is --
3 MR. RAMIREZ: No. I am just saying that
4 would make for a very interest argument. With this
5 supreme court, I don't know what would happen.
6 DEAN POWELL: But if we try in Missouri to
7 force out-of-state lawyers to take CLE courses and we
8 weren't requiring our own attorneys to take CLE
9 courses, I think we would have a privilege and
10 immunity problem.
11 MR. RAMIREZ: Or requiring attorneys to
12 have malpractice where you don't require your own
13 attorneys to have malpractice. A lot of states don't
14 have mandatory malpractice.
15 MS. GRAY: I think one of the other issues
16 is that we are talking about kind of competency at
17 the front end, but even presuming competence for the
18 multijurisdictional practice, I think we need to look
19 at the public protection at the back end when, in
20 fact, there has been a failure of competence. Who is
21 accountable, who is responsible and who takes the
22 appropriate action?
23 One of the things that at least the
24 regulation community is concerned about is committing
25 their resources to assuring competence in a lawyer
28
1 population that is not licensed in the jurisdiction
2 over which they really have no serious effect other
3 than to potentially preclude them from ever being
4 licensed and whether or not they would be full faith
5 and credit on their records with regard to the whole
6 state.
7 So I think that assuring competence at the
8 front end in terms of, do we let somebody go in pro
9 hac vice and do transactional practice. But at the
10 back end, how do we then sort of have an overlay of a
11 regulatory system where 52 jurisdictions buy into it
12 in some consistent fashion and really gives the kind
13 of respect and reciprocity that I think would be
14 needed to legitimize what we all agree is how
15 practice is conducted in the country right now.
16 But it is conducted without any oversight
17 and without any meaningful regulation and conducted
18 in a way that people are certainly not confident
19 about the legitimacy of what they are doing, which is
20 why only 250 lawyers bothered to respond to our
21 survey. I think people are concerned.
22 MR. EHRENHAFT: Isn't the implication,
23 however, in what you are saying support for the view
24 that this entire exercise is kind of a silly one?
25 Because, first of all, it is posited on the notion
29
1 that regulation is required. Is it in fact -- what
2 is the predicate for requiring these kinds of
3 licenses, anyway? There is historic record of it but
4 forget history for a moment.
5 In the courts, it is a different thing. I
6 think from the earliest courts, it may be that judges
7 have required that people who appear before them have
8 a certain kind of competence and whatever. And one
9 of the problems we have about devising rules is -- we
10 usually talk about legislative rules -- it is very
11 hard to require courts to do anything. I mean, maybe
12 the courts will always have an inherent power to say
13 who is going to have the right to appear before them.
14 I don't know enough about that. It would be
15 interesting to know.
16 But one of the things that has struck me in
17 the course of these hearings is we hear about this
18 problem you are talking about, the regulators need to
19 be able to catch the malfeasers. How many malfeasers
20 are there? Out of the million lawyers practicing in
21 the United States, how many, in fact, do we have to
22 be concerned about?
23 And considering all the other problems of
24 our country, the crime and everything else, how many
25 resources should the community put into going after
30
1 -- what, five hundred lawyers in the country per year
2 that actually malpractice to the injury and are
3 caught at it. There may be millions or thousands
4 that are malpracticing in some way and nobody knows
5 about it because it may have no adverse effect. But
6 as far as the record is concerned about what really
7 is a bad situation requiring regulation, do we have a
8 case?
9 MS. GRAY: I would say, Peter, my sense
10 would be that if, in fact, we relax the barriers to
11 practice in the country so that interstate practice
12 becomes the common practice and that is something
13 that people do and wonder how far they should go.
14 Can I go to Texas? Should I go to Texas? Now you
15 know you can go to Texas, if you want. We can all
16 become competent by going on the Internet and by
17 doing research.
18 I think there will be a greater
19 proliferation of activities. And yes, I do think the
20 judicial branch of government in this country needs
21 to regulate it. I mean, I don't think they just
22 regulate in-court practice. I think they regulate
23 the delivery of legal services in this country in any
24 framework, in any scheme, in any setting.
25 I am not saying there is a major problem,
31
1 but I think that the court just can't decide that
2 because they are not licensed in our state, we are
3 not going to have accountability and responsibility
4 to protect the citizens of our state. And to give
5 guidance to the bar. So I don't think anybody says
6 it is a major problem. Certainly, as Bierbauer said,
7 as a court, we are looking at our own law in our own
8 state and we had to make the finding that we made.
9 And I think every state might take the same view. So
10 if they want to relax, then I think we need to do
11 something.
12 DEAN POWELL: I think Jeanne is absolutely
13 correct. I cannot envision a jurisdiction that would
14 contemplate a friendlier attitude towards foreign
15 lawyers, while at the same time not insisting upon
16 close scrutiny and regulation and ultimate power to
17 sanction those lawyers.
18 So it seems to me that once we even begin to
19 raise the question, Are we going to provide wider
20 arenas for lawyers to practice -- or I should say,
21 Are we going to allow for lawyers to practice across
22 jurisdictions, what we are necessarily saying is that
23 we are also going to allow those lawyers to be
24 reviewed and sanctioned, if necessary, in wider
25 jurisdictions.
32
1 MR. EHRENHAFT: Nothing I said was contrary
2 to that idea. It would just be the different
3 standard that I would follow the suggestion made
4 here, that the only standard that really is
5 appropriate is the competence one and the actual
6 malpractice one. If malpractice occurs due to
7 incompetence or malfeasance or fraud or whatever,
8 certainly the jurisdiction where that has occurred
9 aught to have the ability to take action and it may
10 proliferate but it may not.
11 The defacto situation in this country today
12 is that thousands upon thousands of lawyers are
13 crossing state lines. There are not thousands upon
14 thousands of complaints about incompetent lawyers
15 invading the states from abroad and having a
16 deleterious effect on the population here. So that
17 is an adequate, I would think, could be an adequate
18 rule. But limited just to that, to whoever
19 malpracticed, whether they are licensed here or not.
20 MR. JENKINS: I get your point. Carol?
21 MS. NEEDHAM: Basically, the system, the
22 disciplinary authorities interested in having a
23 record, I think it is important to make a distinction
24 between the discipline imposed in the host state.
25 Obviously, the host state being able to enforce its
33
1 disciplinary actions there and then the factual
2 records developed in that host state being sent to
3 disciplinary authority in the home state. But not
4 necessarily mandating that the home state exert
5 the exact same physical measure as the host state has
6 determined.
7 So I think there is a certain kind of mutual
8 discretion that different prosecutors may take
9 different views for the same behavior and I suspect
10 that if I were the disciplinary counsel, I would not
11 want to have my hands tied as to one of my guys,
12 based on what some other prosecutor decided to do
13 because I may want to do more. And the record
14 developed elsewhere would be shipped over, but not to
15 require that if they decided to disbar that I would
16 also have to disbar.
17 MR. RAMIREZ: Just think of the great
18 conflict of law course. Real quickly, we had a
19 situation. When I was chair of the disciplinary
20 board in New Mexico, we had an attorney who was
21 working for the United States government. He was an
22 assistant attorney general but he was working in
23 Washington, D.C. I can't remember the exact ruling,
24 but there was an opinion that the United States
25 attorney general had said that they could --
34
1 MS. NEEDHAM: Thornburg Memorandum.
2 MR. RAMIREZ: Thornburg Memorandum. I was
3 trying to remember the term. Anyway, I think it was
4 Judge Hollaway in Washington, D.C. didn't think that
5 that was right, that she aught to be able to talk to
6 the alleged felon without the presence of his or her
7 own counsel. So she, herself, reported this young
8 man to the disciplinary board.
9 Well, he is not licensed in D.C.; he was
10 licensed in New Mexico. So she reported him to New
11 Mexico. So we had to go and investigate in
12 Washington, D.C. on something that did not occur in
13 New Mexico. So it raised some real interesting
14 issues.
15 JUDGE WAXSE: I think another factor that
16 your comments raised is that Kansas has sort of a
17 fallout from MDP, a new commission. One of their
18 stated goals is to attempt to insure that there is no
19 unauthorized practice of law, which they are defining
20 as including people from Missouri coming over and
21 practicing without a license in Kansas.
22 Within the last year, it was after MDP, that
23 was their response. We have seen it now and it is
24 terrible and we need to stop it. Their stated
25 purpose is to protect the citizens of Kansas from
35
1 these bad people, but the unstated purpose,
2 obviously, is we have enough lawyers here and don't
3 need these other people.
4 MR. JENKINS: Are you close enough to that
5 situation to shed some light on what has happened?
6 Is their charge, then, to simply identify UPL and do
7 they report it out to some disciplinary or
8 enforcement authority?
9 JUDGE WAXSE: They are in the process right
10 now of doing the impossible, from my perspective,
11 which is first defining the practice of law. What is
12 kind of funny is I got stuck doing this myself in the
13 early 90's. Based again on what the Board of
14 Governors wanted, we came up not only with the
15 definition but with an enforcement mechanism. Sort
16 of using the Consumer Protection Act as a structure
17 that would allow people to get all the normal
18 remedies under that against people that are engaged
19 in the unauthorized practice. But once we looked at
20 it in the early '90's, we decided this was
21 impossible. There is no way we are going to be able
22 to do this.
23 But now this group that is newly formed is
24 taking that old definition and saying we can make
25 this work and we are going to stomp out this
36
1 behavior. But so far they haven't done anything more
2 than meet to talk about redoing the definitions of
3 the structure.
4 MR. EHRENHAFT: I wanted to follow up on
5 Carol's comments about the problem about the person
6 in the home state not wanting to enforce carte
7 blanche what was suggested by the host state and the
8 perhaps difficulty of the host state to take action
9 against someone who leaves the host state and goes
10 back to the home state and doesn't come back.
11 There again, there are many other situation
12 in our economy and life where the same issue arises
13 and it seems to be handled all right. If you speed
14 in Georgia, you have to appear in court in Georgia.
15 And the fact that you are licensed in New York, they
16 may send -- the fact that you got convicted may
17 appear on the records in New York, but as far as New
18 York taking additional -- fining you in addition to
19 whatever fine you paid in Georgia, there is not going
20 to be an additional fine. It is just going to be
21 that we are going to learn about it and the place
22 where the thing happens is going to take action.
23 With regard to what most lawyers are doing,
24 I think that our product liability laws have shown
25 the way that you can't hide -- if you purposely go to
37
1 a jurisdiction and offer a good or service and the
2 person is injured as a result of that, our legal
3 system provides for long arm jurisdiction to require
4 you to appear. If the lawyer from New York won't
5 come back to Georgia to defend himself, there will be
6 a default judgment and it can be enforced in his home
7 state.
8 These are not really insuperable problems to
9 this issue and we shouldn't create or make believe
10 that they are. They can follow logically from many
11 other developments in our economy and society. And
12 one of the things that really surprises and disturbs
13 me about what we have been hearing over and over is
14 as though the legal profession is in some kind of a
15 hermetically sealed container and we only look at our
16 own navels to decide what is good for us and for our
17 profession.
18 We really aught to learn what other
19 countries are doing, what other professions are
20 doing, what other aspects of our economy are doing
21 with not dissimilar problems. And I think that will
22 guide us to a more sensible solution than focusing
23 just on the way that lawyers have done things for a
24 long time.
25 MR. JENKINS: That probably is not too far
38
1 away from my personal philosophy, too, Peter. I
2 would be interested in what others think about that
3 idea. Let me just toss a question out and then turn
4 to Dick.
5 For example, the analogy you gave about a
6 traffic violation. Maybe that is fine but maybe we
7 aught to hold lawyers to some higher standard because
8 of what they do and because of how they interact with
9 the public and the like. I will put that question on
10 the table just to kick it around a little bit. Maybe
11 some other people have some views about that one.
12 JUDGE WAXSE: I think he is wrong on the
13 facts because most states, when you get a violation
14 in another state, it goes on your record and if you
15 get enough of them, you are going to lose your
16 license even if you didn't do anything in your home
17 state. So I think they do consider what goes on
18 elsewhere and I think --
19 MR. EHRENHAFT: That is what I said. They
20 will mark it in the records, but I don't think they
21 will initiate a separate proceeding.
22 JUDGE WAXSE: But they will take your
23 license if this is your third one or whatever it is
24 you are not supposed to have. I think the lawyers
25 could do the same thing again.
39
1 MR. WHISLER: That arises out of a
2 multistate compact, the ability for Georgia to have
3 my license revoked in Kansas. We don't have one of
4 those. That may be what we end up with, like the
5 multistate sales and use tax where the states agreed
6 on a procedure we can follow. That takes the
7 political well of not only the supreme courts of the
8 states but also legislatures.
9 I don't have a great deal of confidence that
10 is going to happen, but it might, if it is marketed
11 good. The only way lawyers are ever going to care
12 about this is if someone says I might not get paid.
13 I did this work in California, I am licensed in
14 Minnesota. They knew I was not licensed in
15 California but I don't get paid. That is how you get
16 our attention. MJP threatened people -- excuse me,
17 MDP did, MJP doesn't. If we are going to go anywhere
18 with this, we need to get people's eyes open and make
19 them realize this can affect them.
20 MR. JENKINS: Dick, do you have a comment?
21 MR. WOODS: I want to go back several steps
22 to some comments Peter made about the number of
23 malpractice claims that are brought by clients. I
24 don't know the specific figures, but judging from the
25 little information I have, I would agree. I can't
40
1 remember whether it was Joe or the judge who made the
2 point that the disciplinary function or procedure is
3 not effectively used.
4 I am in the minority in that I would be one
5 that would favor publication of the results of the
6 disciplinary hearings. But I think there is a lot
7 more malpractice going on out there that never comes
8 to light. Depending upon the relative sophistication
9 of the client, anybody who has been in practice very
10 long knows it is easy to say, It wasn't my fault, it
11 was the judge's fault or it was somebody else's fault
12 so the client thinks he is there with an empty sack.
13 And I think there is also -- when somebody
14 is frustrated with their attorney, unless there are
15 significant stakes involved, the people I have talked
16 to generally don't want to continue to deal with
17 attorneys and they don't want to spend more money
18 having to make their case when they don't think much
19 is going to happen as a result of their coming
20 forward.
21 So I don't think there is widespread
22 malpractice out there, but I do feel that if you go
23 to a multijurisdictional practice, that the state bar
24 associations would have to, and should, devote more
25 resources to the disciplinary aspect. And as I say,
41
1 I would publicize the actual results. I wouldn't
2 publicize the charges, but once the disciplinary
3 action is concluded, I would make that public.
4 MR. WHISLER: Well, we do that. Any lawyer
5 in Missouri who is reprimanded, suspended or
6 disbarred is published every month.
7 MR. WOODS: Right, but I don't think that is
8 true in every state.
9 DEAN POWELL: In the majority of states and
10 it has been the ABA's position for a number of years.
11 MR. RAMIREZ: Once the specification of
12 charges is filed, as well, most states now say that
13 all that is public record and the hearings are open.
14 When we first adopted that rule in New Mexico we
15 thought, see what happens. Nobody goes to those
16 hearings.
17 MS. NEEDHAM: I guess the one thing I would
18 say about client protection is that to have a
19 realistic protective function, it would have to be
20 some sort of Internet available searchable database,
21 not publishing something in a monthly magazine that
22 two years ago somebody had been disciplined is not
23 going to help somebody today.
24 I do know I heard the disciplinary counsel
25 in particular states say to me that in their state's
42
1 rules, they are unable -- they feel frustrated when
2 someone is calling and they have a choice of hiring
3 two lawyers to handle something. What do you have to
4 say about it? And one has got a big fat file of a
5 number of different investigations, none of which
6 result in public discipline and the other one has
7 been practicing 15, 20 years with never a complaint.
8 They would like to be able to say, Go with Number 2
9 but they can't, because the charges are not public.
10 There is something frustrating to me on the
11 side of the disciplinary counsel to not be able to
12 reveal what the Better Business Bureau can reveal
13 about, you know, floor refinishers.
14 MR. WOODS: I think a disciplinary web site
15 would be great because, again depending on which
16 state you are in, the publicity may be limited to the
17 bar journal that is circulated only to the attorneys.
18 MS. NEEDHAM: It might make the lawyers mind
19 their P's and Q's a little bit better to know it is
20 not just a rap on the knuckle but an ongoing listing
21 on the national --
22 MR. HOLTAWAY: The ABA does maintain a
23 national lawyer regulatory databank that anybody can
24 either write in or call in and ask if a certain
25 lawyer has been disciplined and if it is a matter of
43
1 public discipline that has been reported to the ABA,
2 you could find out about it.
3 MS. NEEDHAM: But is all discipline reported
4 to the ABA?
5 MR. HOLTAWAY: No.
6 MS. NEEDHAM: Is there any way to get --
7 MR. HOLTAWAY: Almost. We can't force them
8 to report it.
9 MS. GRAY: Virtually every state does report
10 it and several of the federal courts. But to get at
11 the issue you are talking about because private
12 discipline or just multiple dispositions that don't
13 result in a public sanction are never reported to the
14 databank.
15 JUDGE WAXSE: I have a three o'clock hearing
16 so I have to leave. One last thing, it seems to me
17 that one issue that has to be dealt with, at least
18 from my limited perspective, most disciplinary
19 authorities are not enforcing competence. They are
20 mostly focusing on real bad behavior as opposed to
21 just incompetent behavior. And they hold out to the
22 public that it is an ethical requirement that you be
23 competent and yet our apparatus, at least from my
24 perspective, doesn't really seem to focus on that.
25 If we were going to get rid of these artificial
44
1 barriers and focus on competence, we would have to, I
2 think, start enforcing these competence requirements
3 and not just talk about it.
4 MR. JENKINS: You have talked about examples
5 of where practitioners have come before you and you
6 have personally determined them to be incompetent and
7 taken action to deal with that. If we step back from
8 that sort of personal role that a judge or the
9 judiciary complaint, what are you suggesting to us?
10 What is the mechanism by which we do that?
11 JUDGE WAXSE: Two things. One is, if
12 lawyers really complied with the reporting
13 requirements that they have already, that would help.
14 And I don't think that is going on. And two, I don't
15 think disciplinary authorities generally think
16 competence issues are something they should deal
17 with. It is malpractice, let the civil side deal
18 with it. But at least my experience, from looking at
19 a little bit of the research, you don't see a lot of
20 lawyers being disciplined for incompetence.
21 MR. EHRENHAFT: The point that you make is
22 absolutely right. Most of those people could be said
23 that they are not competent to determine that
24 competence. You are talking about some fairly
25 sophisticated and difficult issues as to what is, in
45
1 fact, competence and giving advice and therefore the
2 only way it can really be appropriately determined
3 might be through civil litigation where appropriate
4 expertise can be brought to bear on that.
5 JUDGE WAXSE: The ones I turned in were
6 simple -- where they missed two or three deadlines in
7 a row. It is not real tough for me to see.
8 MR. RAMIREZ: Let me ask you real quick,
9 Judge. What about UPL enforcement in Kansas? Is
10 there a lot of UPL enforced.
11 JUDGE WAXSE: No. The only thing that has
12 gone on is there have been a few attorney general
13 actions brought against possie comitatus types but
14 nothing much. This commission claims they are going
15 to get after this and we will see.
16 MR. JENKINS: Judge, thank you for taking
17 the time to join us. We appreciate it.
18 JUDGE WAXSE: Thank you.
19 MR. WHISLER: In Missouri, our regulators
20 have their hands full with people that steal money
21 and get drunk and are on drugs and don't show up for
22 things. We don't have enough people to deal with
23 that. We lack the resolution to fund any further UPL
24 kind of claims, which -- I think we think we would
25 lose, more than likely, on most UPL claims. But it
46
1 is expensive and we do not have the resources.
2 MR. RAMIREZ: Is yours a criminal statute?
3 MR. WHISLER: No.
4 MR. HOLTAWAY: Are the members of the
5 Missouri MJP committee -- have you been following
6 what is going on in Oregon, Idaho, and Washington?
7 MR. WOODS: Yeah.
8 MR. HOLTAWAY: Have you, in your
9 discussions, reached any type of consensus or are you
10 going to issue a report or send this commission any
11 written comments or --
12 MR. WOODS: I think we are going to next meet
13 on May 11 in Jeff City and then I believe there is
14 one more meeting scheduled in St. Louis. We have had
15 two meetings so far and to date, there has been a
16 great deal of discussion. There is kind of a
17 discussion draft of a proposed rule that has been
18 circulated among the members and presumably will be
19 part of a report that is made to you all. Probably I
20 would say I think they were shooting for June, to get
21 something to you in June.
22 MR. JENKINS: That would be helpful. We
23 have a target date of June 15, although it is not set
24 in stone and we certainly -- I say it this way, that
25 is the target date and we are certainly going to be
47
1 open to receiving comments and perspective after that
2 date.
3 MR. WOODS: I think some of the things we
4 have considered are the concept of the driver's
5 license, the idea of a national licensing procedure.
6 The regional compacts just the proposed rule and how
7 that might be tweaked. We have also talked about the
8 difference -- the attitude, and in terms of changing
9 the rule for transactional folks or more to the
10 point, for people employed by private corporations
11 such as I am, as opposed to the litigation
12 environment where I think there is a greater concern
13 that somebody is actually taking money from the
14 licensing jurisdiction's attorney's pockets than
15 there is when somebody for Nabisco or Federal Reserve
16 or GE have their own attorneys going to another
17 jurisdiction to do some work.
18 MR. RAMIREZ: You said you looked at the
19 proposed rule. Are talking about Rule 5.5?
20 MR. WOODS: Yes.
21 MR. RAMIREZ: Ethics 2000 Rule?
22 MR. WOODS: Yes.
23 MR. RAMIREZ: Are you guys far enough along
24 in your work to have a sense as to whether or not you
25 think 5.5 will work? Does it go too far or not far
48
1 enough?
2 MR. WOODS: I can only speak for myself and
3 unfortunately, the chair of our commission or
4 committee is in Washington, DC and unable to attend,
5 but my personal view is that it is a step in the
6 right direction. I would tweak one of the particular
7 subphrases a little bit to make it a little more
8 broad. That has to do with the -- in fact, I might
9 ask you because at our last meeting there was a
10 little difference of opinion as to how to interpret
11 the rule requirement 5.5.
12 As I recall, 5.5(b)(2)(ii) refers to the
13 lawyer acting with respect to a matter that arises
14 out of, or is otherwise reasonably related to, the
15 lawyer's practice on behalf of the client in a
16 jurisdiction in which the lawyer is admitted to
17 practice. And my reading of that, together with the
18 two sets of comments, meant that the client had to be
19 domiciled or incorporated in the same jurisdiction in
20 which the attorney is licensed. One of our other
21 members read that to mean that they did not have to
22 be in the same jurisdiction. Have you all addressed
23 that? We thought this was a little ambiguous.
24 MR. JENKINS: I don't know that we addressed
25 it directly. I think there was some discussion at a
49
1 prior hearing. That is work being done by the Ethics
2 2000 Commission and I don't know if Lucien talked
3 about that in a private meeting. Yes?
4 MR. EHRENHAFT: It can't be right that the
5 client has to be in the same jurisdiction.
6 MR. WOODS: It cannot?
7 MR. EHRENHAFT: Yes, because so many of the
8 corporate clients are not domiciled. So it must be
9 read that it has to be related to the lawyer's
10 practice in the jurisdiction. And that is -- I think
11 we have heard from the business law section and
12 others that that is still an excessively narrow
13 interpretation. That is why there are additional
14 safe harbors, so many safe harbors that you will have
15 a laundry list like the ocean.
16 MR. RAMIREZ: Like the hearsay rule.
17 MR. WOODS: I can't remember whether it was
18 the reporter's comment or just the proposed comment
19 that seemed to indicate that they did have to be. In
20 any event, I think you could cure that by just
21 eliminating part of the last line of that paragraph.
22 MR. EHRENHAFT: That is among the proposals
23 that have been made to improve or to modify that. If
24 the Rule 5.5 approach is going to be used at all,
25 that is. I guess we have had discussion about top
50
1 down versus bottom up focus whether you say
2 everything is allowed except that which is prohibited
3 rather than saying nothing is allowed except what we
4 have sanctioned with these safe harbors. Maybe they
5 get you to the same place, but there is a slight
6 difference in approach.
7 MR. WHISLER: I have had to miss the second
8 meeting, but do we still think that Ethics 2000 is a
9 good start?
10 MR. WOODS: The group that was there -- and
11 you were on the phone, Carol -- the group that was
12 there, I think that Joe felt that it was an
13 appropriate place at least for us to start and then
14 propose some modifications to that rule.
15 MS. NEEDHAM: For what it is worth, my sense
16 of the meetings, both sides, was that it doesn't go
17 far enough. But as far as it goes -- there was one
18 more conservative member but just sort of becoming a
19 better-informed member. But it seemed to me the
20 general gist of it was at least this and now let's
21 see what else. With the idea that it be politically
22 achievable to not be pie-in-the-sky coming up with
23 something that someone academic might think was a
24 great system which doesn't relate to their political
25 realities and abilities.
51
1 But it is interesting to me that everybody
2 wants to take steps in a direction. It does seem to
3 me that the tide is in a certain direction, yet each
4 group is kind of waiting for another group to --
5 like, I don't want to be so bold so I won't go quite
6 as far as I think we aught to. And we are all
7 waiting for somebody else to be that bold.
8 My sense was that this was certainly not
9 unpalatable to anyone, but we thought more could be
10 done and that whole safe harbor calling on only these
11 things that we were picking apart that and saying,
12 What about a client that I have done a lot of work
13 for? And this place that opens up operation
14 somewhere else and calls me, why shouldn't I be able
15 to take that work on?
16 And we are trying to distinguish between
17 what your listing of inventory of issues has under
18 number seven, eight, and nine. Probably perspective
19 client versus prospective client. And we are trying
20 to draw some lines that I am not sure, personally,
21 are drawable. I think you ought to be able to be, if
22 you are well-known to be an excellent environmental
23 regulatory lawyer or immigration lawyer, you should
24 be able to handle those if someone comes to you to
25 handle and --
52
1 MR. WOODS: And the other issue that we have
2 also been discussing is if you eliminate the
3 questions of state law and if you are talking about
4 federal law, for example, advising people on federal
5 income tax matters or federal securities law matters,
6 immigration matters, why should somebody licensed in
7 Washington who handles immigration laws not be able
8 to represent a client in the State of California?
9 MR. JENKINS: Let's do this, if we may.
10 Let's hold that question or that comment and take a
11 short break, let people refresh themselves, and then
12 reconvene and start again.
13 (Recess.)
14 MR. JENKINS: Back on the record. I think
15 you had the floor, Carol, just before we broke and I
16 don't know if that is a good place to start or you
17 have probably forgotten?
18 MS. NEEDHAM: As I recall, we were talking
19 about the degree of client choice that we wanted to
20 respect. I think that is really what it boils down
21 to. To the extent that you were kind of asking us
22 about the sense of the Missouri group and we were
23 saying that while 5.5 doesn't go far enough, but at
24 least is a step in the right direction.
25 We were debating about how to respect client
53
1 choice, particularly the idea that the lawyer is
2 approached in the home state by a client from out of
3 state to do work. And the consensus, it seems to me,
4 please flush it out if you think otherwise, that a
5 lawyer ought to be able to do work directly within
6 their area of expertise regardless of where the
7 client is located who calls upon them to do the work.
8 But that does require self-policing and that gets us
9 back to the competence issue.
10 Certainly, someone that is known as aircraft
11 finance lawyer or an environmental regulation
12 specialist or whatever the area is, then they get
13 calls from people even that they have never done any
14 work for, they want to be able to do that work with
15 whatever travel is involved as opposed to I can stay
16 here and speak to you on the phone but I can't go to
17 the meeting. The point at which I don't think we
18 have scrutinized completely is, is there some way to
19 say you can respond to client request but yet you
20 can't market yourself or instigate.
21 MR. JENKINS: Take the initiative.
22 MS. NEEDHAM: And I am not sure we got a
23 good answer. Speaking personally, I think in the
24 context of the First Amendment and the Went For It
25 decision and the other supreme court cases on
54
1 advertising and transportation, it seems to me that
2 as long as somebody is complying with the -- not
3 misleading and that kind of standard, I don't know
4 that it makes sense to try to please that particular
5 distinction.
6 Would you say the lawyer is marketing
7 himself if he is attending a conference or hosting a
8 seminar and sends newsletters out saying that if you
9 want to get up on the latest OSHA regulations, we are
10 having a cocktail party at my office with an oral
11 presentation? You know, that networking or if you go
12 across state -- or you go to a conference somewhere
13 else out of state and you talk to people and they
14 mention -- I think we have already revisited that
15 with the advertising cessation discussion of a few
16 years ago and I don't think you could possibly try to
17 exploit that.
18 So if you were able to take the work, you
19 should be able to take it. I think it is only in bad
20 taste or improper to go after it on the solicitation
21 side.
22 MR. RAMIREZ: One of the things that we have
23 heard is that we should not be concerned with market
24 pressures or economic forces and what effect they
25 have on the profession. That we need to focus more
55
1 on the rules themselves and try to develop rules that
2 don't really reflect that. Do you think that is
3 realistic?
4 MR. WOODS: Could you tell me what you mean
5 by market forces?
6 MR. RAMIREZ: For example, in the MDP issue,
7 in this issue as well, we talk about client choice.
8 Well, client choice is maybe a market-driven factor.
9 I may be able to do the services less expensively or
10 I am an A-one expert in the entire United States in a
11 particular area of law and so that client wants me.
12 But because they are in New York and I am in New
13 Mexico, they can't hire me.
14 MR. WOODS: I don't view this so much as a
15 market force, although we just may be using different
16 words. I think this goes back to what I said, and a
17 couple of people echoed, at the very beginning and
18 that is, I think t