AMERICAN BAR ASSOCIATION
COMMISSION ON MULTIJURISDICTIONAL PRACTICE
SAN DIEGO CONVENTION CENTER
SAN DIEGO, CALIFORNIA
FEBRUARY 16, 2001
CONTENTS
Wayne J. Positan, Chair – Opening Remarks 1
John McGuckin - American Corporate Counsel Association 3
Jeffrey L. Russell 27
Paul McLaughlin - The Law Society of Alberta 35
Joseph R. Giannini 47
Edward Kallgren – ABA Senior Lawyers Division 51
Amy C. Cashore – ABA Young Lawyers Division, Special Committee on
the Future of the Profession 53
Craig A. Landy – President, New York County Lawyers Association 58
William Barker – International Association of Defense Counsel 70
Dennis Stryker 83
Barry D. Epstein – President, New Jersey State Bar Association 91 James R. Edwards- American Corporate Counsel Association 99 Pamela I. Banner – ABA Section of Intellectual Property Law 106 Brigadier General David C. Hague – ABA Standing Committee on
Legal Assistance for Military Personnel 112 Andrew J. Guilford – Immediate Past President,
State Bar of California 118
1 MR. POSITAN: Good morning. My name is Wayne
2 Positan. I am the chair of the ABA Commission on
3 Multijurisdictional Practice. I would like to welcome
4 everyone here this morning to participate in our
5 hearings and dialogues on this very important subject.
6 We have a schedule, basically, that has been
7 established through a sign-in procedure over the last
8 several weeks, and we have basically scheduled those
9 people every half-hour to give their remarks.
10 I want to emphasize that we have, in fact,
11 received -- and I know I'm speaking to the Commission
12 members here this morning -- the materials that have
13 been submitted to us. So please don't feel compelled
14 to repeat all of them and read them into the record.
15 They all will be part of the record that is being made
16 for this proceeding. We do have a court reporter
17 taking down everything that is said here.
18 One thing I want to emphasize on behalf of the
19 Commission is that this is intended to be a wide-open
20 process. This commission has not made any decisions
21 whatsoever. I know in some of the materials, at least
22 as to the New York materials, on page 6, that there's
23 an indication that we have already come out with some
24 sort of position on this issue. We have not.
25 We have not drafted anything or summarized
26 anything in any position because we don't have one yet.
27 That's why we're here. We're here to participate in
28 this process and to get as many inputs as possible from
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1 the profession. We started, obviously, by getting
2 perceptions of what this means to the public at large.
3 We really want to reach out, as you've seen in some
4 memos drafted by Harry Myers before he left for the
5 Bush Administration.
6 Our goal here today and through the hearings
7 we scheduled elsewhere -- we have hearings in New York
8 on March 30th, some hearings in Miami on or about June
9 1st. We also have further hearings in Chicago with the
10 annual meeting of the ABA in August. So our goal is to
11 get as many people possible participating in this
12 process as we can; and from there we will, hopefully,
13 come up with some recommendations and potential
14 solutions for recommendations to the ABA. There's no
15 set timetable on that at this point.
16 We have requested an extension for ourselves
17 also from the impetus of the people in this room from
18 the division. We expect to be hearing about that
19 during the weekend here. We're optimistic and hopeful
20 because we certainly think that we need a time to make
21 that time and assessment as well.
22 So we welcome you. We're interested in
23 dialogue. We'd like to have a give-and-take with you.
24 This is not a formal hearing in the sense that we're
25 just going strictly, as I said, to take a verbatim
26 statement. We want to talk to you. We want to hear
- what you say, and we care about what you say. We take
- that all into account from all the various
Peterson & Associates Court Reporting, Inc. 3
1 introspections as we try to deliberate and come up with
2 some ideas on this very important matter.
3 Having said all that, our first speaker is
4 John McGuckin from the ACCA. I'm interested,
5 obviously, in getting started with you.
6 MR. MCGUCKIN: Thank you, Mr. Chairman. Good
7 morning. My name is John McGuckin. I'm the executive
8 vice president and general counsel and corporate
9 secretary of Union Bank of California, which is
10 headquartered in San Francisco. I suppose I'm really
11 here not as legal counsel but as Ed Kallgren's warm-up
12 act. I'm also the current chairman of the advocacy
13 committee on the Board of Directors of the American
14 Corporate Counsel Association.
15 ACCA is an international bar association now
16 with 12,300 members who work for more than 5,000
17 nonprofit and profit organizations in the United States
18 and around the world. We're pleased to have the
19 opportunity to participate in your discussions on the
20 important issue of multijurisdictional practice.
21 Since 1986, the ACCA Board of Directors and
22 the leadership and members of our 43 local chapters
23 have participated actively, both in the national and
24 local levels, in the MJP debate hoping to provide what
25 we think is a valuable in-house perspective.
26 Our members not only provide personal and
27 legal services to their employer-clients, but we also
28 purchase hundreds of millions of dollars of legal
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1 services from thousands of lawyers and law firms across
2 the country and increasingly around the world. As a
3 result, we are interested in your work not only as
4 attorneys but also as representatives of some of the
5 largest users of legal services in the country.
6 During your hearing, my colleagues, Jim
7 Edwards and Dennis Stryker, will describe the practical
8 day-to-day issues with in-house counsel in practicing
9 in what we believe is an increasingly
10 multijurisdictional environment.
11 I don't plan to anticipate their testimony or
12 repeat the testimony that we have submitted to you in
13 writing. Rather, I'd like to summarize our position
14 and present to you a proposed solution that I hope we
15 can keep in mind as you hear from other witnesses. We
16 believe that the case for committing an in-house
17 attorney to engage freely in the multijurisdictional
18 law rests on two propositions.
19 First, our clients, our employers, need a wide
20 range of specialized legal services on a state,
21 national, and increasingly global level. These
22 clients, many with in-house legal staffs, seek by word
23 of mouth, phone, fax, and E-mail the best and most
24 cost-effective legal counsel wherever the lawyer may be
25 located.
26 These increasingly sophisticated legal
- consumers are not constrained by state boundaries,
28 state rules about the practice of law, or restricted by
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1 court rulings, like the Birbrower case here in
2 California, as they seek to effectively seek to use
3 outside counsel and the company's in-house legal staff.
4 Second, in-house counsel provide legal
5 services system-wide, not just in the state in which the
6 legal department is located. We have phone, fax, and
7 E-mail links to every office, plant, branch, and
8 division of the company and are expected to respond to
9 the constant flow of legal inquiries which come from
10 all parts of the company's system.
11 In addition and in an effort to best utilize
12 the experience and expertise of the in-house counsel
13 staff, our clients often send an in-house attorney to
14 another state on temporary or permanent assignment. As
15 long as these in-house lawyers practice only on behalf
16 of their employer, the public protection and other
17 arguments for impediments on the in-house MJP we don't
18 think are persuasive.
19 In short, the clients need to compel us to
20 find ways to support an effective multijurisdictional
21 practice throughout the United States. ACCA believes
22 that a uniform system with MJP is the best way to
23 address the practical issues faced by in-house counsel
24 as we personally represent our clients and hire outside
25 counsel to assist us.
26 Fifteen states have already adopted with
27 variations in the details an in-house counsel exception
28 which protects the general public while recognizing the
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1 importance of in-house practice for other states,
2 including California, and will consider the merits of
3 such rules. We believe that it is time to build on the
4 experience of these states and seek a national MJP
5 uniformity for in-house counsel, and we urge for
6 outside counsel as well.
7 After nearly two decades of study and debate,
8 ACCA supports a solution which permits in-house
9 attorneys to engage in a multijurisdictional practice
10 with a minimum of formalities. Those in-house counsel
11 who transfer from one in-house position to another in
12 different states should not be required to take another
13 bar exam provided that they are in good standing in
14 their original state, passed the new state's character
15 review, and agree to be subject to the disciplinary
16 system of their new state of residence.
17 In addition, those in-house counsel who
18 provide legal advice and services to employees of their
19 corporate client located in other states in person or
20 by phone, fax, or E-mail should not be held to engage
21 in the unauthorized practice of law.
22 The third leg of our proposal which we
23 submitted to you in writing as relates to outside
24 counsel is similar with what we recognize but is more
25 controversial. First, we believe that the individual
26 state should continue to regulate first-time lawyer
27 admission.
28 Second, any lawyer in good standing who has
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1 been previously admitted to a state bar should be able
2 to move to a new state of residence and be admitted to
3 the practice of law without taking another bar
4 examination.
5 Third, our proposal suggests that individual
6 states should also have the authority to regulate the
7 multijurisdictional practice of lawyers who
8 occasionally cross state lines under a national compact
9 adopted by all the states. Those attorneys who are
10 admitted in one state and whose business occasionally
11 or temporary calls them to other states should carry
12 with them an inferred license that authorizes their
13 practice but subjects them to local regulatory control
14 without the need for additional bar exams, motions,
15 associated local counsel, or other formal requirements.
16 We believe that this compact arrangement will
17 work for both in-house and outside counsel. We
18 understand that the devil is undoubtedly in the details
19 here, but ACCA hopes that to assist you in exploring
20 these details -- Susan Hackett, our general counsel, is
21 a liaison for this commission. We hope that you will
22 call upon her, me, and the other ACCA representatives
23 at any time during the process.
24 We believe the time for change is now. The
25 practice of law in Europe has already abandoned the
26 international boundaries as limitations and other
27 federal systems likes Canada, Australia, and soon
28 Germany will move successfully to MJP admissions and
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1 licensing standards, which facilitate rather than
2 hinder the practice of law.
3 We recognize that this is a complex, often
4 emotional issue in which change is not easy; and
5 reasonable minds often differ on the best approach.
6 During the hearing you will hear from many other
7 constituents. We hope others like ACCA will present to
8 you a proposal you can think about.
9 We think our proposal is simple and workable
10 and is in line with the goals of our profession to
11 provide high quality service to our clients. But we
12 think it is far more important that the legal
13 profession not let this opportunity to address the MJP
14 issue slip by without a reasonable analysis and some
15 form of positive proposal from the organized bar.
16 This commission and the ultimate proposal,
17 whatever it is, will be critical in encouraging the
18 cooperation of state bars to create a system which will
19 work across the country. Your recommendations will
20 influence local debate on this issue. We hope the ABA
21 will lead the American Bar to a solution.
22 At ACCA, we have waited since 1990 -- 1986 for
23 this window of opportunity to open. We want to assure
24 you of our support and cooperation in this endeavor.
25 With that, thank you. I'd be happy to respond to any
26 questions.
27 MR. POSITAN: John, in terms of the ACCA
28 proposal, you've outlined certain things about what
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1 would happen in the home state admission and other
2 models that you've listed under occasional temporary
3 presence. I see under your provision concerning home
4 state admission that you discuss a number of subjects
5 that certainly concerns me with part of our discussion
6 on the issue, part of many discussions.
7 When you get into the discussion of mandatory
8 CLE and pro bono requirements -- for example, in New
9 Jersey we have a mandatory pro bono system. I see what
10 you're saying in terms of how you conceptualize when
11 somebody changes their home state in effect.
12 What do you do in a situation where you have
13 an in-house counsel who works in one state but in
14 effect works pretty continuously in two or three or
15 four contiguous states? Let me assume -- let me give
16 you a good example because of the geographic boundaries
17 and so on and so forth.
18 Let's assume you have an in-house counsel who
19 is basically headquartered in New Jersey but has a
20 significant regional presence in the northeast; and
21 that person, because of the areas that they're assigned
22 to, works more than what you would call on a temporary
23 basis, let's say, in New York, Pennsylvania,
24 Connecticut, Rhode Island, Massachusetts. Let's say
25 they are in one of those states about once a week as
26 they travel around taking care of HR or whatever else
27 they might be doing.
28 What would you say in that situation in terms
Peterson & Associates Court Reporting, Inc. 10
1 of what those responsibilities might be to those
2 particular states and their mandatory pro bono
3 requirements, the CLE? How would that work?
4 MR. MCGUCKIN: I think that the concept of the
5 home state -- and you're raising important details and
6 I'm not sure we have all the satisfactory responses to
7 that -- but I think the concept of the home state in
8 this case, not the attorney, is that a lawyer should be
9 subject to the pro bono, the MCLE, and the other
10 requirements of the state in which he or she is
11 admitted; so in your example that should be New Jersey.
12 I don't think that we should impose upon the
13 lawyer a variety -- in this temporary situation a
14 variety of jurisdictional components other than the
15 disciplinary components because I think that most
16 states have MCLE at some level, not all have pro bono
17 requirements, and that's a very difficult kind of issue
18 to deal with. But we think that in your case if the
19 lawyer is a resident in New Jersey but has client
20 contacts throughout the contiguous states, that he or
21 she should be held to the responsibility in New Jersey
22 as long as they are practicing only for the in-house
23 employer.
24 If this lawyer leaves his in-house employment,
25 then I think that's another matter for us, especially
26 if they move; but I don't think that you would carry
27 the baggage of all 50 states, because that's just not
28 effective and that's not efficient. Similar cases may
Peterson & Associates Court Reporting, Inc. 11
1 be imposed to outside counsel.
2 MR. POSITAN: Well, in opinion No. 14 permits,
3 in the last 25 years, in-house counsel to assist their
4 client or employer in the contact of their legal
5 affairs in New Jersey; otherwise, they wouldn't
6 (inaudible) to take advantage of them, and obviously
7 disciplinary systems is one extremely important aspect
8 of it.
9 But I'm really getting beyond the question of
10 just what's temporary. I'm not talking about a
11 temporary femoral event where you go into a state and
12 perform one real estate transaction, let's say, on
13 behalf of the corporation.
14 I'm talking about something that contemplates,
15 and I know it's a little bit of a tough problem I'm
16 trying to drive at here. I am not talking about
17 somebody who is more than just temporary, but somebody
18 whose presence may exist in five states on a regular
19 basis because they're assigned to take care of HR in
20 the northeast region.
21 That contemplates that they have people in
22 those local regional offices in each state, but they
23 are basically going there on a regular basis and
24 deciding what should be done on some particular
25 personnel or union situation. And I know from my
26 practice that this is not an absurd or abstract
27 example, but it is very common, something that I see
28 all the time.
Peterson & Associates Court Reporting, Inc. 12
1 MR. DIMOND: There is a New Jersey statute
2 that you are signing that allows an attorney in New
3 York to be employed by a New Jersey employer and never
4 become admitted to the New Jersey bar even though his
5 main offices are in New Jersey, and that person never
6 becomes admitted to the New Jersey bar; is that the
7 crux of that statute?
8 MR. POSITAN: It's an ethics opinion. That's
9 my understanding on that.
10 MR. DIMOND: So, in your opinion, when you're
11 saying that the lawyer needs to be subject to the rules
12 of the jurisdiction by which he admitted -- in Wayne's
13 example, that lawyer would not be admitted in New
14 Jersey. The question is, can you really impose on that
15 person, who is under some exemption or other situation,
16 the requirements of New Jersey law, continuing
17 education, pro bono and so on, notwithstanding the
18 original admission would be in New York or in
19 California where he has no further contact?
20 MR. POSITAN: I'm driving at the question of,
21 you know, let's say -- we have a county in New Jersey
22 that has a very severe problem. It happens to be the
23 one with the smallest population of lawyers, and they
24 contend that they get an inordinate amount of pro bono
25 assignments.
26 Let's assume that somebody from that county
27 would come up and say, "Gee, this isn't fair. We have
28 all this MJP stuff, and that's all great; but how come
Peterson & Associates Court Reporting, Inc. 13
1 I have to take ten mandatory pro bono cases a year,
2 and all these corporate attorneys coming into New
3 Jersey, they don't have take any? What's fair about
4 that?"
5 What's ACCA's position on mandatory pro bono?
6 What are they willing to do in order get what they
7 want?
8 MR. MCGUCKIN: Well, I'm not sure that I even
9 know our position on that. I apologize. Do we have a
10 position on that? This is when general counsel turns
11 to his outside counsel and says, "What do we say?"
12 MR. POSITAN: Well, this is a dialogue.
13 MS. HACKETT: We don't have a formal or
14 general position. Our position has always been that we
15 do not support mandatory pro bono; that many major pro
16 bono organizations and institutions (inaudible) with
17 both the ABA level and the state level where they
18 believe that you can't create the proper professional
19 environment to encourage pro bono by making it
20 mandatory.
21 MR. POSITAN: Well, we have people in South
22 Jersey who would disagree with that.
23 MR. DIMOND: May I ask a question?
24 MR. POSITAN: Just jump in. Again, this is a
25 dialogue. That's what we're here for, to answer these
26 kind of tough questions.
27 MR. DIMOND: Thank you. I see two
28 distinctions within your group of proposals. One is
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1 that you focus on a single client relationship which --
2 pointing out 15 states have recognized unique rules in
3 that setting. Do you see a distinction that would, in
4 effect, resolve your problems, if at all, if the states
5 had some form of uniform exception for single client
6 representation? And, secondly, how did your proposal
7 relate to the need to appear in court in the various
8 jurisdictions as opposed to rendering in-house work,
9 literally in-house?
10 MR. MCGUCKIN: Well, to answer your first
11 question, I think the answer is "Yes." I think if the
12 exception or the rule for in-house counsel were uniform
13 that as long as you provided service only to the single
14 employer in an in-house situation, then I think that
15 this situation works well for us and to some degree the
16 court.
17 The distinction between litigation and
18 transactional work is a detail that I'm not sure that I
19 have that much a problem with, but I'm not a litigator.
20 I have great respect for litigators, but -- I know
21 you're a litigator. And I think that the court's -- we
22 see in the discussion historically to divide the issue
23 from litigation and courts. In fact, many of the
24 exceptions that have already been adopted by the states
25 have exception to the exception for litigation. And in
26 that case, we have the normal admission by pro hoc vice
27 or admissions for some type of a motion for a
28 particular matter.
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1 It seems to me that the courts are pretty good
2 at policing the competence and the ability of the
3 people in front of them. That's what judges do all the
4 time. And there's some variety even in the federal
5 system in which there are some federal courts, district
6 courts, which do not require admission in the bar --
7 the local state to be admitted.
8 So as a general counsel looking at what is
9 provided by the in-house counsel to the single employer
10 and trying to think what am I being protective about, I
11 don't see any difference between transactional law and
12 litigation. In other words, it seems to be appropriate
13 if I have an in-house litigator on my staff who is
14 admitted in the state of California and therefore can
15 appear with the appropriate formalities in any court,
16 state, district, and federal, in California, that he
17 ought to be able to take that experience, that ability,
18 to Oregon or New York or Illinois.
19 MR. DIMOND: You can go do that on a pro hoc
20 basis. If you do it frequently enough, it's no longer
21 pro hoc. Pro hoc is no longer applicable.
22 MR. MCGUCKIN: At that point I think there may
23 be a need for more regulation or more jurisdiction.
24 Maybe that's not a temporary type of issue. If you're
25 creating a practice for yourself which focuses in
26 another state which requires you to appear before the
27 courts quite often --
28 MR. DIMOND: You contend with the pro hoc
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1 rules in terms of where they stand with the litigation
2 specialty, and it doesn't have the same type of rule
3 base.
4 MR. MCGUCKIN: Well, I don't want you to set
5 aside the litigation issue because, as I said,
6 personally the transaction issue may be a little bit
7 easier to deal with, but I don't think we should skip
8 over the litigation. I think that many of the same
9 arguments with regard to who are we protecting, you
10 have to ask, "Who are we protecting?"
11 We're still protecting the same -- we're
12 trying to protect the same client, who I suggest to
13 you, doesn't need protection.
14 Number two, are we concerned about the ability
15 of a lawyer to practice within the framework of a
16 particular court in which he or she is appearing?
17 That's a matter of a local rule. If I'm a litigator in
18 California and admitted to California, my office is in
19 San Francisco and I appear in a court down here in San
20 Diego, the rules are different. One of the things that
21 I'm required to understand and research is what are the
22 appropriate standards for practicing in San Diego or
23 Los Angeles.
24 I think that the ability of lawyers, our
25 training, says that it doesn't matter. If we can do it
26 from San Francisco to Los Angeles, we can do it from
27 San Francisco to Chicago to New York to New Jersey.
28 The rules in the litigation standards are the same,
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1 especially in Federal Court.
2 MR. DIMOND: You're talking about two things.
3 You're saying who are we protecting. The "who" we're
4 protecting doesn't necessarily have to be the client in
5 the transactional setting. There's a second party that
6 we're protecting, if I can use that phrase. We're
7 protecting the court system when you talk to the
8 litigation contact in addition to the client.
9 MR. MCGUCKIN: But I'm not sure what the
10 danger is that you're protecting the court system from.
11 MR. POSITAN: Well, in every situation you
12 have an adversary and a party involved. And presumably
13 even beyond, the judicial system in this case of
14 litigation but this whole system of justice comes into
15 play, and you're talking about the public interest.
16 So there seems to be broader concerns and
17 compelling things that we have to worry about to
18 protect the public, who often is not heard from. We
19 just presume that everything is okay because you
20 lawyers are working this out. That needs to be
21 protected as well to make sure that whatever we do here
22 doesn't begin to erode some of the very, very important
23 values of that system in general.
24 MR. MCGUCKIN: I would certainly agree with
25 you on that. The integrity of the justice system is
26 important to our system of jurisprudence, and we as
27 professionals and officers of the court -- we're all
28 officers of the court, whether or not we're
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1 transactional lawyers or litigation lawyers; we have
2 responsibility.
3 But I think, again, you have to come back to
4 who are we trying to protect and what are we trying to
5 protect them from? If we're trying to protect the
6 adversary from an unethical lawyer, a lawyer who
7 doesn't keep bargains, who is outrageous in the
8 courtroom, the judge is very good at running his or her
9 courtroom.
10 If we're trying to protect the lawyer from
11 malpractice, from lack of knowledge of the underlying
12 law, or the underlying process, I don't think that the
13 current system really does that. If we are trying to
14 protect the public from the -- in the sense of what --
15 strike that.
16 I was on the State Board of Governors for the
17 State Bar of California, as some of you know; and in
18 those days we focused on the integrity of the court
19 system as well as the reasons for the disciplinary
20 system. Who did we discipline? We don't discipline --
21 60 percent of our disciplinary cases in the
22 state of California arise from substance abuse. They
23 arise from lawyers who embezzle from the IOLTA
24 accounts. They arise from this type of conduct.
25 That's what the disciplinary system focuses on, not
26 someone from Illinois who comes in and practices before
27 a court in Missouri across-the-board.
28 So I think you're raising important issues,
Peterson & Associates Court Reporting, Inc. 19
1 and I don't want to throw the baby out with the bath
2 water. I think the integrity of our judicial system is
3 very important, and it may well be in your
4 consideration and in your final report, that you decide
5 the place that we ought to start this is with
6 transactional lawyers; and we'll leave the litigation
7 issue to come on along when we have more experience
8 with how things work.
9 MR. POSITAN: The perception of the system as
10 a whole is important, the reality of it.
11 MR. MCGUCKIN: Absolutely.
12 MR. POSITAN: It also seems to me that you
13 can't look at a transaction in the sense of it only
14 affecting the people -- part of the transaction.
15 Because transactions, as we know, often affect the
16 public even if they are not a party to the transaction.
17 What happens like in a particular environmental case, a
18 particular land deal, zoning, developmental right
19 affect not only the people who are a party to the
20 transaction, but people who are affected by that
21 transaction may not have anything to say; but in terms
22 of the perception of how the legal system works must be
23 taken into account even in that situation.
24 MR. GILLERS: Wayne, may I ask a question?
25 MR. POSITAN: We do have to be mindful of our
26 scheduling. One thing I want to say is with this
27 dialogue, things tend to unfold and lead to other
28 things. We are having another session this afternoon
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1 from 2:00 to 5:00, which is going to be a totally open
2 dialogue, round table, not unlike what you've already
3 seen here this morning. We encourage people to
4 participate in that, and ACCA will come back and
5 participate and have further exchange of ideas as well.
6 Obviously, there are a lot of important
7 issues. When we begin to talk, every rocky turnover
8 seems to have three more.
9 MR. GILLERS: I apologize because I came in
10 late. We're all mindful in this field early on that it
11 has been important work. I have three very focused
12 questions about the proposal that would help my
13 thinking.
14 The first is, would your proposal apply to
15 lawyers who while admitted in their home jurisdiction
16 could not gain admission to the other jurisdiction
17 perhaps because they're graduates of non-approved law
18 schools? If that lawyer could not gain formal
19 admission to the host jurisdiction, would he or she
20 nevertheless qualify for these licenses that you
21 described?
22 MR. MCGUCKIN: The answer would be, yes. The
23 proposal is based on an assumption of respect for the
24 admission requirements of another state. There are
25 undoubtedly as we now have major differences in
26 admission requirements, and you have raised probably
27 one of the most difficult ones for us in California.
28 At some point we have to break through that.
Peterson & Associates Court Reporting, Inc. 21
1 At some point we have to recognize that the
2 multijurisdictional practice of law is a
3 multijurisdictional practice, and we have to assume and
4 give respect to whatever each state does.
5 MR. GILLERS: So would your answer be the same
6 if the lawyer had applied for admission in the host
7 state, took the bar examination, failed three times,
8 was not qualified to take it because there's a cap on
9 the number of times you take it, passes it in the home
10 state and returns to the host state and seeks admission
11 under this alternate route?
12 MR. MCGUCKIN: Even if she's been admitted to
13 a bar and assuming that he or she remains in good
14 standing and can pass -- I think the character issue is
15 important in the new state, the other states, because I
16 think that's the essence of the disciplinary issue.
17 The answer is, yes.
18 MR. GILLERS: My next question is, your
19 statements suggest that the lawyer who was admitted in
20 this example would be able to represent the employer
21 entity, but I've seen in ACCA material, maybe
22 elsewhere, the proposition that they should also be
23 able to represent other employers of the employer
24 entity on their personal matters: Officers, directors,
25 agents, and fellow workers. Is that part of your
26 proposal, or are you limiting the work solely to the
27 entity itself?
28 MR. MCGUCKIN: It's certainly the latter. I
Peterson & Associates Court Reporting, Inc. 22
1 don't recall necessarily any of the other references
2 that you're mentioning, but we would draw the line
3 there. I, as a general counsel, draw the line there
4 for my lawyers who work for me. They cannot provide
5 personal legal services to employers, agents,
6 directors, or officers.
7 In response to your earlier question, I would
8 carve out an exception with regard to pro bono because
9 there we're going outside the scope of the employer.
10 But I don't think -- I think that the proposal stands
11 upon providing legal services to the sole client.
12 MR. GILLERS: My last question is, because
13 this is not clear from the proposal, would the
14 admission route also be open to lawyers whose home
15 jurisdiction is a foreign nation?
16 MR. MCGUCKIN: That's a nice jump, and I
17 suppose I'd adopt -- and we would suggest that you
18 adopt a water's edge approach to that type of issue.
19 MR. GILLERS: Wouldn't that exclude Hawaii?
20 MR. MCGUCKIN: I was almost admit Hawaii.
21 With all due respect to my colleagues in Hawaii and
22 Alaska, I think that the debate needs to start here.
23 You're raising a very important issue of international
24 practice, and at this point I think in many cases
25 countries outside the United States are ahead of us and
26 certainly in Europe. Canada you'll be hearing from
27 later today, I understand from a representative of the
28 Canadian Bar Association. I'll let them speak to their
Peterson & Associates Court Reporting, Inc. 23
1 own experience.
2 The reality is in a cyber world that the
3 competition for America's lawyers is going to come from
4 overseas. Now, does that mean that we at ACCA believe
5 that we should be opening the system to overseas
6 lawyers? I don't know. What I would suggest, though,
7 that from my experience in the State Bar
8 California that we have a process here in California
9 which enables lawyers from overseas to become active
10 members of the State Bar of California.
11 MS. YU: No, they can't.
12 MR. MCGUCKIN: Well, they can provide legal
13 services, and we've had that for 15 or 20 years. I can
14 remember ten cases. That just seems to be besetting a
15 bureaucracy and a regulatory network that doesn't
16 address the real problem.
17 MR. POSITAN: Is that because people don't
18 know about it, or people just choose not to use it?
19 MR. MCGUCKIN: Oh, it's an incredible process.
20 I had to make these decisions when I was in the State
21 Bar, and it takes an enormous amount of information.
22 But then you get back to a lot of the same policy
23 issues and the same judgment calls that you make in the
24 United States. I think it's much more difficult.
25 I'd rather have you think about the
26 jurisdiction that admitted the colleagues who are
27 seated beside you on either side of this table that are
28 thinking if someone who is admitted in Singapore or
Peterson & Associates Court Reporting, Inc. 24
1 some other jurisdiction.
2 MR. POSITAN: We have it in New Jersey. We
3 adopted it, and my information is that nobody has ever
4 applied it. When I look at it, I look at it not being
5 an unreasonable matter of dealing in terms of somebody
6 wanting it. 170 people in New York have it, and again
7 I assume from that number, it must mean that they must
8 be doing something that encourages them doing it.
9 MS. GARVEY: I think a lot of people think
10 (inaudible).
11 MR. MCGUCKIN: I think the reason is we have
12 foreigners come to the United States and take the bar
13 exam and don't bother with the foreign consultant rule
14 because most foreigners speak English adequately to
15 take a bar. It's a very easy way for them to be an
16 American lawyer.
17 The real problem is in the reciprocal area
18 where American lawyers want to practice abroad and they
19 don't speak Slovak and they don't even speak French.
20 Therefore, we're very anxious to have foreign legal
21 consultants in foreign countries so American lawyers
22 can operate abroad.
23 MS. GARVEY: I have two very focused
24 questions, John. One is how do you distinguish the
25 case of in-house counsel from somebody who is in
26 private practice but perhaps works almost solely for
27 one client and does exactly the same sort of thing,
28 sort of pseudo-general counsel of the outside firm? Are
Peterson & Associates Court Reporting, Inc. 25
1 there distinctions that can be drawn there?
2 MR. MCGUCKIN: Well, I would like to draw a
3 bright line for the in-house counsel because I see
4 where you're going.
5 MS. GARVEY: I'm not going anywhere. I'm just
6 curious.
7 MR. MCGUCKIN: I think you need to set the two
8 cases aside. There is an employer-employee
9 relationship for the in-house counsel as opposed to
10 more of the normal agent type of relationship to
11 outside counsel. Even if there are outside counsel who
12 bear the title "General Counsel" for some of their
13 corporate clients, I don't see them as within the
14 constituency of the in-house bar. I think they should
15 be treated as outside counsel.
16 MS. GARVEY: Yes. But my question really
17 wasn't about the constituency of inside counsel, but
18 rather in terms of trying to draw a rule or make a
19 suggestion for a solution. Can we validly make
20 distinctions based upon, you know, employment
21 relationship only where you expect the same thing?
22 That's troubling.
23 MR. MCGUCKIN: I am not sure you want to slice
24 it that finely. I understand the form over substance
25 issue, but I think that if you're employed by a company
26 in-house, as an employee, when you have that
27 relationship, I think that's the one case. I think we
28 would treat the other cases that you're raising as we
Peterson & Associates Court Reporting, Inc. 26
1 do with outside counsel.
2 Now, we also believe that outside counsel
3 should be treated in many ways in the same way when it
4 comes to crossing state borders to provide legal
5 services for a single client or for many clients.
6 MS. GARVEY: Well, that's where my question is
7 going. If we have a rule especially for inside
8 counsel -- but if you put it side by side by other
9 attorneys that do substantively the same sort of thing,
10 should we have just a rule?
11 MR. MCGUCKIN: Well, we would favor a rule
12 that deals with multijurisdictional practices for all
13 lawyers regardless -- I'm sorry. I really did miss
14 your point. -- for all lawyers, but we recognize that
15 the outside counsel -- you're going to hear from a lot
16 of outside counsel who can really focus on that.
17 My perspective as an employer of outside
18 counsel -- so let me take my lawyer hat off and put my
19 client hat on -- is that I would urge you to take that
20 extra step to move beyond the in-house lawyer to all
21 lawyers. Because as an employer-client, an outside
22 lawyer, I want to be able to find the best lawyer I can
23 find regardless of where he or she is located. The
24 current rules don't make that difficult because the
25 phone and the fax and the E-mail are there. They cause
26 problems that I don't think should be there between my
27 relationship between me and the law firms that I want
28 to hire.
Peterson & Associates Court Reporting, Inc. 27
1 MR. POSITAN: We'll get some other ACCA
2 representatives to come forward. We would like to
3 continue with Jeffrey Russell.
4 Mr. Russell?
5 MR. RUSSELL: Good morning, ladies and
6 gentlemen of the Commission. At the outset, I would
7 like to thank you for providing me with this
8 opportunity to address you this morning. My name for
9 the court reporter is Jeffrey Russell. I, unlike the
10 first speaker, am not representing any particular
11 organization. I am here speaking from my own
12 experience that I think reflects on the issue before
13 you.
14 At the very beginning, the chairman said that
15 copies have been made of all the remarks, comments
16 prepared, and suggestions; that we do not simply read
17 them into the record. I won't do that, but I would
18 like to have the Commission's indulgence for just a
19 minute to touch on the highlights, to set the
20 background for the remarks that are to follow.
21 Four years after I graduated from law school
22 in Ohio -- I grew up in Ohio and went to law school
23 there. After law school, I joined the United States
24 Department of Justice. For approximately 16 years
25 thereafter I searched in various places starting out in
26 Cleveland, and then I went to Miami, from there to Los
27 Angeles, then to Department Headquarters in Washington
28 D.C. where part of my job was to assist smaller offices
Peterson & Associates Court Reporting, Inc. 28
1 in other parts the country or offices that needed
2 particular help.
3 In this capacity I tried cases in New Jersey;
4 Reno, Nevada; Baltimore; and I assisted in cases in
5 Philadelphia. After that, I came out on special
6 assignment to San Francisco. The entity that I was
7 working for within the Department of Justice was
8 eventually absorbed in the U.S. Attorney's office. I
9 then became a district attorney in San Francisco.
10 So I think it's fair to say that I've had a
11 pretty broad practice in the area of federal
12 prosecutions. In the time that I spent with the
13 Department of Justice, I tried about 45 cases for trial
14 in seven different federal districts. I also wrote 20
15 appellate briefs and argued cases in the first six 9 to
16 11 Circuit Courts of Appeal.
17 So as I was saying, I think I've had in my
18 area of expertise, in my practice in the criminal
19 arena -- I've had a national practice during those
20 years. A few years ago, for a variety of reasons, I
21 had an opportunity to take an early retirement from the
22 federal government, and I did so. My career just
23 happened to end here in California.
24 In spite of the background that I have just
25 related to you in my practice area of criminal law, I
26 am unable, because I am not a member of California Bar,
27 to appear in California State court. I submit to the
28 committee that based upon my background, I'm in a much
Peterson & Associates Court Reporting, Inc. 29
1 better position to represent people accused of crime
2 than somebody who just recently graduated from law
3 school, passed the California Bar exam, and got
4 admitted; but I am excluded from doing so.
5 In addition to that, in California there are
6 four federal districts. All four districts now
7 require, for a matter of admission, membership in the
8 California Bar. I am a member of the Northern District
9 because I got admitted before that rule changed.
10 For many years the other three districts in
11 California all had that rule requiring California
12 admission. And the Northern District, to be consistent
13 with the other three, eventually adopted positions. I
14 think it was in '96 or '97. I got in before that. I
15 don't remember exactly, but I got in before that; so
16 I'm, quote, unquote, grand-fathered in.
17 I'm in a position now where I could not go
18 into any of the other district courts in California
19 even with my experience because I am not a member of
20 the California Bar.
21 Additionally, the way things work in the
22 criminal justice system for indigent defendants is that
23 if they qualify for appointed counsel, they're
24 appointed the federal public defender. If there is any
25 conflict with the federal public defender, particularly
26 with multiple defendant cases, then there's a panel of
27 lawyers that can be assigned to represent the indigent
28 defendant.
Peterson & Associates Court Reporting, Inc. 30
1 I am not eligible to be on that panel simply
2 because I'm not a member of the California Bar. In
3 spite of the fact that I was a prosecutor for more than
4 16 years, I'm not considered, quote, unquote, qualified
5 to represent indigent defendants in this state.
6 I suggest that some form of universal
7 reciprocity is appropriate. I offer myself as an
8 example only that I am sure there are countless other
9 examples. I know that there are many people who have
10 worked for the federal government, not just the
11 Department of Justice but any other departments, that
12 are employed here in California that cannot be admitted
13 to the California Bar on motions and would seek
14 admission if they were allowed to do so.
15 This would also increase, as the Chairman's
16 pointing out, more people to do pro bono work for one
17 thing, as well as the dues situation, which was a
18 thorny issue in California here several years ago.
19 Again, I want to thank you for the opportunity
20 to speak. I'm only representing myself as an example
21 of what I consider to be a situation that I believe
22 should qualify for some kind of admission in California
23 or any other state based on my background.
24 There are, of course, as you obviously know,
25 34 other jurisdictions who do have reciprocity on
26 motions, and in those states the sky hasn't fallen. So
27 I think you can draw on that experience that there's no
28 reason to believe some adverse affect will take place.
Peterson & Associates Court Reporting, Inc. 31
1 I don't have a specific proposal. I just
2 suggest that anyone who has been admitted to another
3 state and has "X" number of years of practice --
4 whether it is three years, five years, seven years,
5 whatever seems appropriate -- and who could otherwise
6 qualify on character issue, should be admitted on
7 motions.
8 MR. GILLERS: Mr. Russell, I'm just curious
9 excepting that the reciprocity should be generous in
10 some places shouldn't exist at all where they don't
11 now. I'm curious why in the five years since you
12 retired you haven't chosen to take the State Bar simply
13 to solve your own problem?
14 MR. RUSSELL: Well, there's several reasons.
15 I don't know many lawyers that have been out in
16 practice 25 years who would be interested in taking a
17 state bar. My area is criminal law. I don't think I
18 can be a very good criminal defense attorney without
19 knowing the rules of perpetuity.
20 Secondly, it's financial. It does cost money
21 to take the bar review course. Anyone would be foolish
22 not to take a bar review course. That costs money as
23 well as -- and I do work. Even though I'm not in
24 practice here, I can appear in federal court, and I do
25 have somewhat of a federal practice, and I assist
26 lawyers in preparing motions and briefs, which is
27 outlined in my remarks. I would have to basically give
28 that up for probably at least three months to prepare
Peterson & Associates Court Reporting, Inc. 32
1 for the bar.
2 This is a great burden that I do not believe I
3 should have to bear. Again, I point out that if I
4 started out for three or four years and I fought like a
5 law student instead of like a lawyer, that might be a
6 better question. That's why I suggest, for example, in
7 Ohio, at least when I was there, the rule was you could
8 get reciprocity if you're practicing for five years.
9 Obviously, if you're under the five-year limit
10 in Ohio, you can't; so those would be required to go
11 through a Bar exam. I have no quarrel with that; but,
12 again, I suggest -- and I look around this room and I
13 see people who appear to me to have been lawyers for
14 some time. The idea of taking a bar exam after 20 or
15 25 years is not particularly appealing.
16 MR. DIMOND: You are self-regulatory, is that
17 fair to say? You would basically say, I would like to
18 be admitted to practice in California, but I wouldn't
19 practice civil law? I wouldn't practice in areas that
20 I wasn't familiar with. Could you rely on me to know
21 my limits?
22 MR. RUSSELL: Yes, yes. That's what I'm
23 saying, right.
24 MR. DIMOND: But it would allow you to
25 practice in other states, practice in all of those
26 areas where you admit you have no particular
27 competence.
28 MR. RUSSELL: In a sense that there's a
Peterson & Associates Court Reporting, Inc. 33
1 general license, yes. I would have no objection to the
2 State of California if they decided to grant me a
3 license to practice criminal law only. I would be
4 satisfied with that.
5 But, again, I point out others states, 34
6 other states, do have that. I could go to any number
7 of states and be admitted. Obviously, I would be
8 subject to the disciplinary proceedings of the State
9 Bar. I don't see how it's going to be any different.
10 What I'm suggesting is because those 34 others states
11 have a state of reciprocity, that it ought to be a
12 universal thing; the other 16 states that don't have it
13 should.
14 MR. DIMOND: You can't practice anything if
15 you're not competent to do so, whether you're admitted
16 specifically or generally the first time or the 15th
17 time. Every lawyer is obligated not to practice any
18 law that he's not competent.
19 MR. RUSSELL: Absolutely.
20 MR. DIMOND: So, therefore, I don't see why
21 one would need a specialized licensed such as being
22 suggested here.
23 MR. RUSSELL: That's exactly right.
24 MS. YU: Mr. Russell, does it matter -- should
25 it matter to this debate or your position in your
26 particular situation, the bulk of your practice had
27 been federal-criminal law as opposed to if it were just
28 general state of Ohio law or whatever? Should it make
Peterson & Associates Court Reporting, Inc. 34
1 any difference to you in that argument, or do you feel
2 it's more compelling because you have practiced federal
3 law in a number of jurisdictions and you should only be
4 able to do that?
5 MR. RUSSELL: Well, both. Both. I think it's
6 fair to say that most people who are practicing lawyers
7 for a certain number of years, whatever that time may
8 be, tend to specialize in one area or another. So if
9 they move from one state to another, if they practice
10 in the area of family law or business organizations or
11 personal injury, whatever it may be, they're going to
12 be in a better position to learn the rules and the law,
13 substantive law, in a state than somebody who just
14 graduated from law school and just passed the bar exam.
15 I'm not sure I'm answering the question.
16 MS. YU: I'm doing the federal practice side
17 of your law as opposed to the state law practices where
18 with presumably different law systems there might be
19 different things we have to learn; but if you're
20 practicing in the federal system, it's the same legal
21 set of arguments. That's what I'm saying. Should we
22 be making distinctions on that basis?
23 MR. RUSSELL: Well, I think there's
24 something -- yes. I mean, I'm here proposing universal
25 reciprocity.
26 MS. YU: I understand.
27 MR. RUSSELL: But in terms of your question,
28 yes. Certainly in California where they restrict
Peterson & Associates Court Reporting, Inc. 35
1 federal bar admission for members only. There are
2 people who are experienced in the federal practice
3 only, not just criminal law like me. It could be
4 bankruptcy. It could be any other number of areas.
5 They may have many years experience in that area, yet
6 they can't be admitted to the federal courts in
7 California even if their practice were exclusively
8 federal. I certainly think that that should be
9 addressed by this commission.
10 MR. POSITAN: Once again, I don't mean to move
11 the agenda a little bit. Mr. Russell, I certainly
12 appreciate your coming here and hearing your remarks
13 and news on the subject. Thank you.
14 MR. RUSSELL: Thank you.
15 MR. POSITAN: If you would like some further
16 opportunity, we'll be here this afternoon from 2:00 to
17 5:00. We encourage more dialogue.
18 MR. RUSSELL: I wish I could, but I have to
19 get back.
20 MR. POSITAN: Next we call Paul McLaughlin,
21 Practice Management Advisor for The Law Society of
22 Alberta. I appreciate your coming here and discussing
23 these issues.
24 MR. MCLAUGHLIN: I must say I'm not here
25 representing anybody but myself in the sense that I am
26 not authorized by The Law Society and the law societies
27 to be their representative. I have followed the lists
28 of the RMPG Commission, and when I noticed that the
Peterson & Associates Court Reporting, Inc. 36
1 Commission was going to be here and I was going to be
2 here, I thought that I should contribute something to
3 this process.
4 That's the first time I've ever heard the
5 expression "water's edge" referring to the edge of our
6 countries, and I was trying to think as I flew down
7 from Alberta to Montana which water course it was that
8 marked the edge.
9 I start my remarks with a quote from Robert
10 Frost --
11 MR. POSITAN: We do have the same parts in the
12 east.
13 MR. MCLAUGHLIN: Robert Frost wrote a Mending
14 Wall, "Something there is that doesn't have a wall /
15 That sends the frozen-ground swell under it / And
16 spills the upper boulders in the sun / And makes gaps
17 even two can pass abreast."
18 The reason why I start with that comment by
19 that section from the poem is because it's really, in
20 my mind, the issue here. The debate is about walls --
21 walls that we built along the jurisdictional
22 boundaries, along territorial boundaries, between
23 provinces, between states, and between countries --
24 that keep other lawyers out and also keep us in and
25 prevent us, as lawyers, from using our skills and our
26 ability and our knowledge as widely as we can.
27 We're interested in this in Canada because we
28 are a trading nation. We depend on trade for our
Peterson & Associates Court Reporting, Inc. 37
1 prosperity. This morning on CNN they announced that
2 Mexico has now become the number two trading partner of
3 the United States but didn't mention something that I
4 think a lot of Americans don't realize, and that is
5 Canada is the number one trading partner and has been
6 forever.
7 We have tremendous impact of globalization
8 into our province and into our country, and we are
9 interested in being able to trade with your country,
10 trade with Mexico, trade with the world; and to do that
11 we want to free our lawyers to be able to follow their
12 clients' needs to wherever they take them.
13 In Canada we have been driven in part by a
14 Constitutional change in 1982, which brought in a
15 Charter of Rights and Freedoms, which said that every
16 citizen of Canada, every person who has a status of a
17 permanent resident of Canada, has the right to move and
18 take up residence in any province and to pursue the
19 gaining of a livelihood in any province. So we have a
20 Constitutional mobility right in Canada.
21 My law society was involved in one of the
22 first Supreme Court of Canada's tests of this
23 particular provision of the Charter, which resulted in
24 us getting our wrists very thoroughly slapped for
25 trying to restrict lawyers from Ontario forming
26 partnerships with lawyers in Alberta.
27 We're also involved in the GATT and WTO
28 process and seeing that opening up. The federal
Peterson & Associates Court Reporting, Inc. 38
1 government has now told the legal profession that
2 they're next in terms of opening up the ability of
3 foreign lawyers to come to Canada under GATT.
4 We have an internal agreement on trade in
5 Canada, which is like a GATT for the provinces. And
6 although that hasn't had an impact on us in Canada, we
7 hope to anticipate the fact that it will shortly do
8 that, and we will then have to deal with
9 inter-provincial mobility.
10 So what we have done as a profession is
11 developed the reciprocal inter-jurisdictional practice
12 protocol to which all but two law societies have now
13 subscribed, and it provides for commitment by all law
14 societies to increase mobility. It provides for
15 temporary mobility, and I will say that provisions for
16 temporary mobility are very complex, very difficult to
17 administer and in western Canada have been basically
18 chucked out in favor of a much more flexible process.
19 It provides that the code of conduct of the
20 province in which someone is practicing will prevail.
21 It says that a visiting lawyer may not maintain a trust
22 account in a jurisdiction in which he is not licensed
23 and may not handle trust funds other than to take
24 retainers promptly back home. It has agreements with
25 respect to who shall have jurisdiction over discipline,
26 and basically it says both. It requires insurance.
27 Requires clients -- it sets up a national client
28 security fund and provides for arbitration of disputes.
Peterson & Associates Court Reporting, Inc. 39
1 The law societies in the western four
2 provinces -- Alberta, British Columbia, Saskatchewan,
3 and Manitoba -- found the safe harbor rules were just
4 too complicated and difficult to administer. So we
5 have moved beyond that in two regards. One is that we
6 have the check-in and licensing provisions and the
7 requirements to practice with a local attorney and
8 basically move to self-monitoring competence much like
9 Mr. Ehrenhart mentioned a little bit earlier.
10 We trust our lawyers not to practice in areas
11 where they are not competent. We can trust a lawyer
12 from British Columbia not to practice where he is not
13 competent; and if she gets in over her head, then
14 she'll find someone to help her just like we expect
15 from our lawyers.
16 We have also moved beyond a rule that said
17 that you're allowed to practice on ten matters for up
18 to 20 days in any 12-month period just simply saying
19 that you can practice for up to six months in any of
20 the other four western provinces in any year. If you
21 want to practice more than six months in a year in any
22 province, then you need to get locally licensed. So it
23 simplified it a great deal.
24 MR. POSITAN: I am interested in the protocol
25 that you experience, that you've had, reciprocal
26 inter-jurisdictional practice protocol. In reading the
27 materials that you submitted, I gather that it hasn't
28 been accepted by all the provinces, or is that wrong?
Peterson & Associates Court Reporting, Inc. 40
1 MR. MCLAUGHLIN: We have 14 law societies in
2 Canada. One of them is not a member of the federation.
3 MR. POSITAN: Who is that?
4 MR. MCLAUGHLIN: That's Minivet (phonetic).
5 They're a new territory, and they have 25 licensed
6 lawyers. So it's not a big part of our profession.
7 The two territorial law societies being UFFA (phonetic)
8 and Northwest Territories have not signed on. They
9 represent maybe 250 or 300 lawyers out of 80,000. The
10 rest of the provinces have all signed on.
11 MR. POSITAN: How does that work that we --
12 for example, down at the Dallas meetings where we had a
13 representative from Louisiana discuss the difference
14 between civil law and common law in the 49 states, is
15 that something that came into play in that effect?
16 MR. MCLAUGHLIN: That was not an issue, and it
17 goes back to -- I think Mr. Ehrenhart said that a
18 common law lawyer would be a fool to go into Quebec and
19 try to practice in an issue that comes out of the civil
20 code without associating himself with local counsel.
21 That's the way it's been approached, and that's the way
22 it's been working.
23 MS. NIRO: How does your disciplinary
24 structure instruct the fool that chooses to do so
25 without local counsel and makes a mistake?
26 MR. MCLAUGHLIN: Well, the point of fact is we
27 don't have very much actual experience because it
28 hasn't been a problem. Under the protocol, the
Peterson & Associates Court Reporting, Inc. 41
1 procedure would be for the local, in this case Quebec,
2 to proceed against that individual under the protocol,
3 the local -- the visited jurisdiction has authority
4 over that lawyer.
5 MS. NIRO: Would a home jurisdiction have
6 equal jurisdiction?
7 MR. MCLAUGHLIN: Yes, equal jurisdiction. In
8 addition to that, one of the remedies or one of the
9 sanctions that can be imposed as a declaration is, if
10 this lawyer has committed this offense and is a local
11 lawyer, they would have been disbarred. And then that
12 triggers then an obligation on the home jurisdiction to
13 consider whether they will, in addition, impose a
14 sanction that they can impose such as suspension of
15 disbarment.
16 MR. GILLERS: I have a question about
17 occasional appearance. Both the original 102012 rule
18 and the western provinces (inaudible) because one of
19 the issues that you have to deal with is the meaning of
20 "practice" in a jurisdiction.
21 When does a lawyer in State A practice in
22 State B? And one of the reasons we have to deal with
23 that, as I point in your remarks, is it's possible to
24 be virtually in a different state on a very continuous
25 basis though remaining physically in your home state.
26 So my focus of the question is on the 102012
27 rule, on the six-month rule. What constitutes practice
28 in the host state? Do you have to be physically in
Peterson & Associates Court Reporting, Inc. 42
1 there to start the clock running?
2 MR. MCLAUGHLIN: That has not yet been decided
3 or determined. At this stage of the evolution, the
4 four western provinces have accepted in principle that
5 it will move towards the six-month rule. Under the
6 102012 rule, there was so little experience with it.
7 There's no articulation of either regulations or
8 decisions that are made.
9 MR. GILLERS: Could a Canadian lawyer in one
10 province --
11 MR. MCLAUGHLIN: If I may, when you use the
12 expression occasional practice and not occasional
13 appearance, because it applies equally to any lawyer or
14 litigation.
15 MR. GILLERS: Well, if a lawyer in one
16 province advertised broadly indirectly on the Internet,
17 for example, of his or her expertise in a particular
18 line of work and without ever leaving the home state
19 provided legal counsel to people nationwide in that
20 area of expertise, either through modern technology or
21 because they come to him -- maybe they live in the
22 neighboring province. He has an extensive national
23 practice and perhaps represents few or no people in his
24 home province. Perhaps it is truly a national
25 practice.
26 If he never leaves his home province and does
27 that year after year and perhaps has hundreds of
28 clients in the neighboring provinces, would that be
Peterson & Associates Court Reporting, Inc. 43
1 permissible even without the occasional appearance
2 rules, or does it have to count against the limits of
3 those rules? Maybe you haven't had that experience --
4 MR. MCLAUGHLIN: We have lawyers --
5 MR. POSITAN: How do you monitor that?
6 MR. MCLAUGHLIN: We don't monitor it. We say
7 it's a matter of self-monitor competence,
8 self-monitoring. We take the approach that the way
9 most of our lawyers are motivated to behave ethically
10 is because they want to be ethical lawyers. So we
11 don't focus our primary attention on that. We focus a
12 lot of resources on catching the small number of
13 lawyers who will push and maybe do it for seven months.
14 Who cares?
15 MR. GILLERS: Well, you don't let people go
16 without clients to other provinces. There is something
17 they have to do. They rotate. So you have to put some
18 boundary measured in time on work elsewhere. It seems
19 to me you then must define what you mean by "work
20 elsewhere."
21 One of the problems for us -- and it seems to
22 be a problem with any federal system and the national
23 bar -- how do we deal with mass marketing and Internet
24 advertising on the one hand and multijurisdictional
25 practice limitations on the other?
26 MR. MCLAUGHLIN: I agree with you. I don't
27 know what the specific answers are because we don't
28 have specific answers to that. But we do not want to
Peterson & Associates Court Reporting, Inc. 44
1 get into the situation where we are saying the
2 difference between five months and 30 days is
3 fundamentally different between six months and two
4 days.
5 So when a lawyer says I practice so much in
6 Alberta even though I'm home in Saskatchewan, that
7 ethically and fundamentally important to be a member of
8 the Alberta bar and that the lawyer ought to be
9 motivated to do that out of a sense of professionalism.
10 MR. POSITAN: Do you have things such as
11 mandatory pro bono or CLE requirements?
12 MR. MCLAUGHLIN: We have neither. We do, on
13 the other hand, have mandatory insurance which makes
14 that aspect easier to handle because every province
15 already has in place insurance programs that are
16 consistent across the country. We also have client
17 security fund provisions for the investor province; and
18 although they are different from province to province,
19 they are consistent enough where we were able to hammer
20 out an agreement.
21 I will say that the client security funds
22 issue was the hardest one to negotiate. The rest of
23 them we were able to get past pretty quickly. The
24 client security funds was very difficult to negotiate.
25 MR. POSITAN: What is your experience in terms
26 of American lawyers practicing in Canada and vice
27 versa? What are the issues?
28 MR. MCLAUGHLIN: There is a tremendous amount
Peterson & Associates Court Reporting, Inc. 45
1 of movement back and forth across the board in federal
2 immigration laws in both countries where I think they
3 notice that. So that -- you know, when I go to the
4 immigration office coming from Edmonton to here, all I
5 have to say is I'm a lawyer going to the States on
6 business; and, bang, I just go right through.
7 We don't worry a whole heck of a lot about it
8 as long as we have the sense -- and we always have the
9 sense because we don't get the complaints. This is not
10 where our complaints come from. We don't get
11 complaints from oil companies saying that some lawyer
12 from Texas came up and gave him bad advice.
13 The complaints are local lawyers practicing
14 improperly. So they come and they go, particularly in
15 the oil. There's a tremendous amount between Calgary,
16 Houston, and Dallas. We don't worry a whole heck of a
17 lot about it.
18 MR. DIMOND: I want to get back to the issue
19 that exists about discipline. And you said that if
20 there's disciplinary proceedings in one province, it
21 would be a recommendation to another province that what
22 we would do in our province is such and such, and we
23 recommend that you consider doing or taking this action
24 this way.
25 MR. MCLAUGHLIN: Let me give you the details.
26 The host governing body will assume
27 responsibility for the proceedings, unless the
28 governing bodies agree to (inaudible) the contract.
Peterson & Associates Court Reporting, Inc. 46
1 Okay? Second is the sanctions available to a host
2 governing body to reprimand costs for both temporary or
3 permanent prohibition of practice in the host territory
4 include a declaration that the lawyer would have been
5 suspended, restricted, or disbarred if he or she met
6 one of those factors.
7 When such a declaration is made, the home
8 governing body must take disciplinary action and may
9 impose any penalty it considers appropriate.
10 MR. DIMOND: They have to accept a finding of
11 guilt, but they can change the recommendation and come
12 to a different conclusion?
13 MR. MCLAUGHLIN: In addition, the home
14 governing body will maintain original jurisdiction over
15 its attorneys for their contract and other provinces
16 notwithstanding any discipline by the host governing
17 body. So there's kind of a double territory, and I
18 don't know if that would call for anything
19 constitutional, but that's what it says.
20 MR. DIMOND: Thank you.
21 MR. POSITAN: Any further questions?
22 Mr. McLaughlin, thanks again. We look for
23 your attack on this problem.
24 MR. MCLAUGHLIN: One more point. There's a
25 danger here that would boil the ocean if we try to
26 solve the whole problem for the whole country. I think
27 that one of the things I think you may want to consider
28 is whether there should be a growth of the reciprocal
Peterson & Associates Court Reporting, Inc. 47
1 protocols in areas maybe -- I don't know how that would
2 break down. And you might say, well, that would end up
3 on a patchwork thing, but my piece of the patchwork
4 would be bigger than the patchwork that you have now.
5 It may then grow larger and larger.
6 MR. POSITAN: That's perhaps why we're so
7 intrigued by your protocol.
8 MR. DIMOND: Mr. Chairman, it's my personal
9 privilege that I would just like to recognize that
10 Terry Russell, who is the president-elect of the
11 Florida Bar, has joined us. Thank you very much.
12 MR. POSITAN: We welcome you. We would also
13 like to recognize former president (inaudible).
14 I'm advised the court reporter needs a break.
15 (Recess taken)
16 MR. POSITAN: We'd like next to call Joseph
17 Giannini.
18 One thing I would like to emphasize as a
19 result of the very vigorous questioning that we had at
20 the beginning, as I said at the outset, this Commission
21 has made no decision about anything yet. Obviously,
22 we're engaged in a great dialogue.
23 As lawyers, we tend to ask pointed questions,
24 and we've all read the materials and asked these
25 questions, as you've heard. Please don't interpret any
26 particular question as being any position of the
27 Commission or any indication as to where we stand on
28 every issue or any issue, but rather things that we
Peterson & Associates Court Reporting, Inc. 48
1 have, in fact, discussed just in terms of the various
2 viewpoints.
3 I don't want anybody to think that, for
4 example, my questions of the ACCA representative that I
5 was taking any position as to anything he said. I
6 think it's important that we on a personal level
7 explore things that have occurred to us as we have read
8 the materials, and I'm sure that that's what the rest
9 of us were doing as well. Please don't draw any
10 conclusions from any particular question.
11 Mr. Giannini?
12 MR. GIANNINI: Good morning. Good morning.
13 My name is Joseph Giannini. I'm an attorney in
14 Pennsylvania and New Jersey. I've had the opportunity
15 to study these issues that the Board is confronting now
16 as a result of lawsuits that I've filed challenging
17 restrictive rules for myself and for others; and as a
18 result of having studied these issues, I have some
19 familiarity with it. Of course, everyone in this town
20 does.
21 I have looked at it in a different light. My
22 thought is that -- I have two recommendations I would
23 ask this task force to conclude. The first is that if
24 an attorney practices law in another state for an
25 interim basis, that he is not committing any crime and
26 he's entitled to his fee.
27 The second proposal that I'd like to endorse
28 is that I think that an attorney who is experienced in
Peterson & Associates Court Reporting, Inc. 49
1 one jurisdiction and for some reason gets a job, his
2 wife gets transferred, has some reason to go to another
3 state, he should be entitled to some form of
4 reciprocity, some form of admission. He should not
5 have to reinvent the wheel.
6 The reason I say this is, we learn how to be
7 lawyers from being lawyers, from experience; actually,
8 the best teacher that we have is experience. My
9 thought, first of all, is that to presume that an
10 attorney that practices in another state on an interim
11 basis is doing something improper is without any
12 factual foundation.
13 Most attorneys are ethical. They're
14 competent. They have pride in themselves and in their
15 work, and they do what they do because they're good at
16 it. They like it, and they enjoy it. Now, obviously
17 some people don't fit into that category; but I would
18 say in today's society in the interim with cell phones
19 and everything else that we have available to us as
20 practitioners, it's is ludicrous to suggest that we
21 would violate our client's rights and our own ethical
22 obligations in representing someone else in another
23 jurisdiction, and it just does not make sense.
24 MR. POSITAN: I think we've read your remarks.
25 They're well-constructed obviously. Do you have
26 anything in addition to add to that?
27 MR. GIANNINI: Yes, I do. That's the first
28 one. The second point that I would like to make is
Peterson & Associates Court Reporting, Inc. 50
1 that I think this task force should evaluate the issues
2 that we're talking about in view of our history as a
3 nation with a commitment to First Amendment free speech
4 rights, advocacy, association with our clients, the
5 Constitutional right to petition for grievances. These
6 are all birth rights. These are all very important
7 matters.
8 I think that the client should be able to
9 choose who he wants to represent him as long as that
10 person has already been admitted to the bar and has
11 experience. Actually, when you have a very important
12 matter and you have decent counsel, your lawyer is as
13 important to you as anybody else in your life: As your
14 wife, as your doctor, as anything. This is a
15 confidential, close, intimate relationship that
16 deserves to be honored.
17 MR. POSITAN: We appreciate everything you
18 said and certainly your remarks. As I indicated, we
19 are going -- would you like a glass of water?
20 MR. GIANNINI: Yes, please.
21 MR. POSITAN: All of the materials are going
22 to be for the record. Here you go.
23 MR. GIANNINI: Thank you, sir.
24 MR. POSITAN: So that, in essence, is your
25 position?
26 MR. GIANNINI: Can I just finish?
27 MR. POSITAN: Certainly.
28 MR. GIANNINI: The other thing is that every
Peterson & Associates Court Reporting, Inc. 51
1 other professions has reciprocity available to them.
2 Doctors get it, dentists, chiropractors. We're the
3 only profession that hasn't come in line with the
4 21st century. We need to get in line with the 21st
5 century. American citizens need it. Businesses need
6 it. We need to take these steps so that people can
7 choose who they want to represent them.
8 Now, some of the people in this town -- I
9 don't know -- in this room have their clients. There
10 are other Americans that these people, that you people,
11 would not want to represent. These people are entitled
12 to representation.
13 I know, for example, a number of black
14 attorneys in California that are licensed in other
15 states, and they cannot practice their profession here
16 in California -- there is a demand for their services.
17 And these are honorable people, and they
18 cannot represent them. Essentially, that doesn't make
19 sense. And these are the reasons I ask the panel to
20 look into that.
21 MR. POSITAN: Well, we certainly appreciate
22 your input.
23 Any questions?
24 Thank you, Mr. Giannini.
25 As part of our custom, I would like to
26 acknowledge the president of the New Jersey State Bar
27 Association -- Barry Epstein is here -- and former
28 president, Edward Kallgren, of the Senior Lawyers
Peterson & Associates Court Reporting, Inc. 52
1 Division, and I certainly want to thank you for your
2 efforts in bringing to the forefront the need for this
3 commission and additional time to make deliberations
4 and study.
5 MR. KALLGREN: Thank you, Mr. Chairman. I'm
6 happy to be here. I signed up to speak primarily to
7 address that issue at a time when it wasn't clear what
8 was going to happen. As of now, I'm told that the
9 Board of Governors, as we sit here, is sitting across
10 the street and is probably going to be extending your
11 life. If it doesn't, Seniors Lawyers has a law before
12 the House of Delegates that would accomplish that end;
13 and we'll proceed with that. I think all of us have
14 agreed as we thought about it that an additional year
15 is necessary to get the kind of input and deal with the
16 issue before you.
17 While I'm here -- and I'll be very brief
18 because I know you're behind -- I just want to make one
19 more point which I'm confident with the quality of this
20 Commission probably doesn't need to be made, but I
21 think, for the reco